Yesue et al v. City of Sebastopol

Filing 83

ORDER by Judge Kandis A. Westmore Granting 65 Defendant's Motion for Summary Judgment; Denying 62 Plaintiff's Motion for Partial Summary Judgment. (kawlc2, COURT STAFF) (Filed on 11/22/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID ALLEN YESUE, et al.,

United States District Court
Northern District of California

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT

Plaintiffs,

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Case No. 22-cv-06474-KAW

v.

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CITY OF SEBASTOPOL,

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Defendant.

Re: Dkt. Nos. 62, 65

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On October 25, 2022, Plaintiffs David Allen Yesue, Paige Elightza Corley, Jessica Marie

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Wetch, and Sonoma County Acts of Kindness (“AoK”) filed the instant action challenging

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Defendant City of Sebastopol’s enactment of Ordinance No. 1136 (the “RV Ordinance”) as

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unconstitutional. (Compl., Dkt. No. 1.) Pending before the Court is Plaintiffs’ motion for partial

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summary judgment and Defendant’s motion for summary judgment. (Pls.’ Mot. for Summ. J.,

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Dkt. No. 62; Def.’s Mot. for Summ. J., Dkt. No. 65.)

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Having considered the parties’ filings, the relevant legal authorities, and the arguments

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made at the September 5, 2024 hearing, the Court GRANTS Defendant’s motion for summary

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judgment and DENIES Plaintiffs’ motion for partial summary judgment.

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I.

BACKGROUND

Like many cities, Defendant has experienced a dramatic rise in the homeless population.

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(Compl. ¶ 1.) Beginning around 2018, unhoused individuals living in Residential Vehicles

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(“RVs”) began to increase in Morris Street and the surrounding residential area, resulting in

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complaints from the community. (7/11/24 Grutzmacher Decl., Exh. 5 (“Rich Dep.”) at

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COS0029364; 7/11/24 Grijalva Decl., Exh. 1 (“McLaughlin Dep.”) at 93:1-20; Exh. 6 (“Kilgore

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Dep.”) at 16:5-11.) For example, there were complaints about RVs using nearly all of the parking

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Northern District of California

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spaces on Morris Street, as well as concerns and complaints about human waste on the sidewalks

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and in the street, leaking sewage, accumulation of trash and possessions around the vehicles, drug

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use, a vehicle catching fire and burning, the use of gas generators, a RV occupant passing away in

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his vehicle, and confrontations between citizens and RV occupants. (McLaughlin Dep. at 22:25-

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23:10, 26:7-23, 90:9-91:3, 91:18-92:2; Rich Dep. at 143:2-13, 153:23-154:7, 156:12-20; Kilgore

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Dep. at 27:8-14, 29:12-15; 7/11/24 Grutzmacher Decl., Exh. 8 (“Nelson Dep.”) at 19:12-15, Exh.

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20 at 38; Wetch Decl. ¶ 4, Dkt. No. 68-6 (“While I was on Morris Street, my trailer was burned

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down[.]”).) The police chief estimated that 20-30% of calls were related to unhoused individuals,

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including by local merchants concerned about the effect of the RV presence on their businesses,

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although no direct link between the RV dwellers and crime was established. (Nelson Dep. at

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19:23-24, 41:4-7, 47:4-23, 54:13-22; 7/11/24 Grijalva Decl., Exh. 14 at COS0011347.) City

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officials were aware of the complaints towards unhoused individuals. (Rich Dep. at 53:25-54:20,

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243:3-8, Nelson Dep. at 62:3-13.)

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On February 23, 2022, Ordinance No. 1136 (the “RV Ordinance”) was passed, and is

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codified at Sebastopol Municipal Code (“SMC”) Chapter 10.76. (7/11/24 Grutzmacher Decl.,

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Exh. 17.) The RV Ordinance states that it is “intended to ensure there is adequate parking for

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residents of the city and to regulate the parking of vehicles actively used as sleeping

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accommodations.” (SMC § 10.76.020.) Thus, the RV Ordinance: (1) prohibits parking an RV on

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public streets zoned as residential, (2) prohibits parking an RV on public streets zoned as

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commercial, industrial, or community facility between 7:30 a.m. and 10:00 p.m., (3) prohibits

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parking an RV on any park, square, or alley, and (4) prohibits parking an RV in a city-owned

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parking lot unless the person is conducting city-related business during business hours at the

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location for which the parking lot is designated. (SMC § 10.76.040.)

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On October 25, 2022, Plaintiffs filed the instant action, asserting claims for: (1) cruel and

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unusual punishment in violation of the Eighth Amendment, (2) excessive fines in violation of the

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Eighth and Fourteenth Amendments, (3) state created danger in violation of the Fourteenth

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Amendment, (4) equal protection in violation of the Fourteenth Amendment, (5) unreasonable

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seizure of property in violation of the Fourth Amendment, (6) procedural due process under the
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United States District Court
Northern District of California

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Fourteenth Amendment, (7) void for vagueness under the Fifth and Fourteenth Amendments, (8)

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right of free movement under the Fourteenth Amendment, (9) right of intrastate travel under the

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California Constitution, (10) excessive fees and fines under the California Constitution, (11)

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unlawful seizure of property by towing under the California Constitution and California Vehicle

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Code § 22650(b), (12) violation of the Americans with Disabilities Act (“ADA”), (13) violation of

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the California Disabled Persons Act, and (14) discriminatory program under California

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Government Code § 11135.1 (Compl. at 18-31.) During the pendency of this lawsuit, the parties

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agreed to temporarily stay enforcement of the RV Ordinance. (See Dkt. No. 55 at 9-10.)

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On July 11, 2024, Plaintiffs and Defendant both filed motions for summary judgment.2 On

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August 1, 2024, Plaintiffs filed their opposition. (Pl.’s Opp’n, Dkt. No. 68.) On August 9, 2024,

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pursuant to the parties’ stipulation, Defendant filed its corrected opposition. (Def.’s Opp’n, Dkt.

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No. 72-1.) On August 15, 2024, Plaintiffs and Defendant filed their respective replies. (Def.’s

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Reply, Dkt. No. 73; Pl.’s Reply, Dkt. No. 74.)
II.

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LEGAL STANDARD

A party may move for summary judgment on a “claim or defense” or “part of... a claim or

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defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate

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discovery, there is no genuine issue as to material facts and the moving party is entitled to

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judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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On April 12, 2024, the parties stipulated to the dismissal of Plaintiff Michael W. Deegan. (Dkt.
No. 56.) On July 16, 2024, the parties stipulated to the dismissal of Plaintiff’s claim for cruel and
unusual punishment. (Dkt. No. 66.)
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In support of their motion for summary judgment, Defendant provided nearly 2,000 pages of
exhibits, the vast majority of which is comprised of entire deposition transcripts. Such
submissions are highly inappropriate; Defendant’s submissions should have been limited to the
specific testimony at issue. The Court will not waste its limited judicial resources to review
thousands of pages of deposition transcript, and instead limits its review to the specific pages cited
in the briefs.
Plaintiffs, in turn, include numerous footnotes in their briefs, many of which appear to contain
substantive arguments and legal citations. (See Pls.’ Mot. (9 footnotes); Pls.’ Opp’n (18
footnotes); Pls.’ Reply (11 footnotes).) This appears to be an improper attempt to avoid the page
limits. It is inappropriate to put substantive arguments in footnotes, and the Court will not
consider such arguments. See Riegels v. Comm’r (In re Estate of Saunders), 745 F.3d 953, 962
n.8 (9th Cir. 2014) (“Arguments raised only in footnotes . . . are generally deemed waived.”).
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Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient

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evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

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A party seeking summary judgment bears the initial burden of informing the court of the

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basis for its motion, and of identifying those portions of the pleadings and discovery responses

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that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where

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the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City

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of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

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Northern District of California

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On an issue where the nonmoving party will bear the burden of proof at trial, the moving

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party may discharge its burden of production by either (1) “produc[ing] evidence negating an

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essential element of the nonmoving party's case” or (2) after suitable discovery “show[ing] that the

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nonmoving party does not have enough evidence of an essential element of its claim or defense to

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discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd., v. Fritz

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Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25.

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Once the moving party meets its initial burden, the opposing party must then set forth

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specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

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Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not

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simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S.

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at 254. “Instead, the non-moving party must go beyond the pleadings and by its own evidence set

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forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., Inc. v. Oskar,

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247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must

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produce “specific evidence, through affidavits or admissible discovery material, to show that the

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dispute exists.” Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or

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speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of

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material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics

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Corp., 594 F.2d 730, 738 (9th Cir. 1979).

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In deciding a motion for summary judgment, a court must view the evidence in the light
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Northern District of California

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most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson,

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477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

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III.

DISCUSSION

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A.

Standing

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As an initial matter, Defendant asserts that Plaintiffs Yesue, Wetch, and AoK lack

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standing.3 (Defs.’ Mot. for Summ. J. at 11; Defs.’ Opp’n at 14.) Article III standing requires the

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demonstration of three elements: (1) the plaintiff suffered an “injury in fact” that is concrete and

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particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

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traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely

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speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 560-61 (1992).
First, Defendant argues that Plaintiffs Yesue and Wetch have not been injured by the RV

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Ordinance, and that they have only a speculative fear of future injury. There is no dispute that

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Plaintiffs Yesue and Wetch were never cited or towed pursuant to the RV Ordinance. Rather, the

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parties dispute whether Plaintiffs Yesue and Wetch are at a sufficiently imminent and substantial

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risk of future enforcement because neither currently own a vehicle that would be subject to the RV

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Ordinance. (See Def.’s MSJ at 12; Pls.’ Opp’n at 6.)

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The Court finds that Plaintiff Wetch has standing, but that Plaintiff Yesue lacks standing.

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Plaintiff Wetch states that she is currently unhoused and has been “couch surfing” since February

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2024. (Wetch Decl. ¶ 2.) Plaintiff Wetch, however, explains that she has access to a truck with a

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camper, and that she would like to transfer it to her name except that she is afraid she will lose it

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due to the RV Ordinance. (Wetch Decl. ¶ 10.) Plaintiff Wetch further explains that she would

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want to be in Sebastopol because that is where her mother and friends are. (Wetch Decl. ¶11.)

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Plaintiff Wetch also states that she would be afraid of parking in Sebastopol, and that she would

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be unable to afford driving out of town and then back each night because of her limited income

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and high gas prices. (Wetch Decl. ¶ 10.) In other words, Plaintiff Wetch’s injury due to the RV

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Defendant does not assert that Plaintiff Corley lacks standing.
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Northern District of California

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Ordinance is not speculative or hypothetical; while she does not currently have a RV, she would

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have one if not for the RV Ordinance’s prohibitions on parking. Plaintiff Wetch further articulates

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why she would need to park in Sebastopol and how the RV Ordinance prevents her from doing so.

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Plaintiff Yesue, in turn, states that he is currently in at-will housing, and that his living

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situation is “precarious.” (Yesue Decl. ¶ 2, Dkt. No. 68-7.) He is also working on finding a more

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permanent housing solution with his case worker. (Yesue Decl. ¶ 3.) Plaintiff Yesue states that if

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he loses his current housing and does not have permanent housing, he will need to live in a

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vehicle. (Yesue Decl. ¶ 7.) Plaintiff Yesue asserts that he would use his sedan as his home, and

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that he would “consider purchasing an RV.” (Yesue Decl. ¶ 4.) While Plaintiff Yesue also states

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that he has access to an RV owned by another individual, he does not express any intent or interest

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in using that RV. Thus, unlike Plaintiff Wetch, Plaintiff Yesue’s asserted injury is too attenuated

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to support standing. Specifically, if Plaintiff Yesue loses his current housing, and if Plaintiff

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Yesue does not have permanent housing at that time, then Plaintiff Yesue may purchase an RV,

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which he would need to be able to park in Sebastopol. This, however, requires a series of

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hypotheticals that may or may not happen, such that “[t]here is at most a ‘perhaps’ or ‘maybe’

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chance” that the RV Ordinance will be enforced against him, “and that is not enough to give [him]

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standing to challenge its enforceability.” Bowen v. First Family Fin. Servs., 233 F.3d 1331, 1340

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(11th Cir. 2000); Lee v. Am. Express Travel Related Servs., 348 Fed. Appx. 205, 207 (9th Cir.

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2009) (“this argument requires a series of assumptions about what might happen if plaintiffs

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actually did initiate arbitration, and such speculation is too conjectural and hypothetical to support

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current Article III standing”).

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Second, Defendant argues that Plaintiff AoK lacks standing because it was not harmed by

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the RV Ordinance. The Supreme Court has found that an organization has standing where the

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challenged practice has perceptibly impaired the organization’s ability to provide services; “[s]uch

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concrete and demonstrable injury to the organization’s activities -- with the consequent drain on

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the organization’s resources -- constitute far more than simply a setback to the organization’s

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abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

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The parties dispute whether the RV Ordinance has frustrated Plaintiff AoK’s mission.
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Northern District of California

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Plaintiff AoK is a non-profit organization whose volunteers serve individuals experiencing

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homelessness, providing supplies such as meals, clothing, tents, and sleeping bags. (Compl. ¶ 16.)

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Plaintiff AoK asserted in its interrogatory responses that because “vehicularly housed persons

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have been forced by the Ordinance to move constantly, [Plaintiff AoK] has found it increasingly

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difficult to locate people to get them meals, increasing the time spent looking for them and thereby

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reducing the number of people who can be served.” (8/1/24 Grijalva Decl., Exh. 2 (“AoK

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Interrogatory Resp.”) at 11.) Plaintiff AoK further states that the time “spent trying to locate and

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serve people who have been dispersed as a result of the Ordinance could have been spent making

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and serving additional meals, in furtherance of Plaintiff [AoK’s] core mission and purpose.” (Id.)

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Defendant argues that contrary to this interrogatory response, Plaintiff AoK testified it had

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no problem locating unhoused individuals. (Def.’s Mot. for Summ. J. at 13.) The testimony cited

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by Defendant does not support this assertion; Plaintiff AoK’s representative stated that the amount

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of time spent finding individuals varied because “[i]f they have moved locations, if they have

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moved further away, the number of locations that we have to go to in order to find individuals.”

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(7/11/24 Grutzmacher Decl., Exh. 16 (“Jackson Dep.”) at 14:25-15:2.) Further, when asked if it

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“happen[ed] frequently that individuals move to different locations and you have trouble finding

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them,” Plaintiff AoK’s representative answered in the affirmative. (Jackson Dep. at 15:3-6.) This

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deposition testimony supports Plaintiff AoK’s assertion that when the individuals it served moved

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around, Plaintiff AoK would have more trouble locating them.

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Defendant also contends that searching for unhoused individuals is part of Plaintiff AoK’s

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standard operations, and that Plaintiff AoK served the same number of meals even after the RV

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Ordinance was enacted. (Def.’s Reply at 9.) Even if true, however, this does not mean that

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Plaintiff AoK did not have to spend more time or resources to serve the same number of meals as

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prior to the RV Ordinance. Indeed, Plaintiff AoK’s representative explained that they would

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sometimes give people duplicate meals because they could not find as many individuals to provide

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meals to. (Jackson Dep. at 28:21-29:16.) Defendant likewise suggests that Plaintiff AoK’s

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representative testified that its ability to serve the unhoused was limited by financial and volunteer

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constraints, not on its ability to find the unhoused, when Plaintiff AoK’s representative made clear
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that its inability to find the unhoused did impact its distribution of meals. (Jackson Dep. at 28:21-

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to not being able to find the individuals on the streets”).) The Court finds that Plaintiff AoK has

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standing, as the RV Ordinance allegedly affected Plaintiff AoK’s ability to find unhoused

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individuals to distribute meals to, draining its resources.

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B.

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The parties do not dispute that Plaintiffs bring a facial challenge to the RV Ordinance. The

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Northern District of California

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Facial Challenge

parties do, however, dispute the standard for a facial challenge.

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“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount

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successfully, since the challenger must establish that no set of circumstances exists under which

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the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Thus, “[t]he fact

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that [a legislative act] might operate unconstitutionally under some conceivable set of

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circumstances is insufficient to render it wholly invalid, since we have not recognized an

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‘overbreadth’ doctrine outside the limited context of the First Amendment.” Id.

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Plaintiffs dispute that it must show that there is “no set of circumstances under which the

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Act would be valid.” (Pl.’s Opp’n at 8.) Rather, Plaintiff argues that this standard was rejected in

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City of Los Angeles v. Patel, 576 U.S. 409 (2015). (Id.) To the contrary, the Supreme Court

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upheld this standard, explaining that “[u]nder the most exacting standard the Court has prescribed

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for facial challenges, a plaintiff must establish that a law is unconstitutional in all of its

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applications.’” Id. at 418. The Supreme Court clarified, however, that “when assessing whether a

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statute meets this standard, the Court has considered only applications of the statute in which it

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actually authorizes or prohibits conduct.” Id. In Patel, the Supreme Court considered a statute

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authorizing warrantless searches. The city argued that there were circumstances where the statute

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would not be unconstitutional, including where the police are responding to an emergency, where

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there is consent to a search, and where the police have a warrant. Id. at 417-18. The Supreme

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Court rejected this argument because “the proper focus of the constitutional inquiry is searches

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that the law actually authorizes, not those for which it is irrelevant.” Id. at 418. Specifically, the

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statute was not necessary where there was an emergency, consent, or a warrant. Thus, “the
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constitutional ‘applications’ that [the city] claims prevent facial relief here are irrelevant to our

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analysis because they do not involve actual applications of the statute.” Id. at 419.

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In short, Defendant cannot rely on a set of circumstances where the RV Ordinance is

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inapplicable (and therefore irrelevant). To succeed on a facial challenge, however, Plaintiffs must

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still demonstrate that there is no set of circumstances in which the RV Ordinance applies that

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would be valid. Am. Apparel & Footwear Ass’n, Inc. v. Baden, 107 F.4th 934, 938 (9th Cir. 2024)

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(“A party succeeds in a facial challenge only by establishing that the law is unconstitutional in all

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of its applications and fails where the statute has a plainly legitimate sweep.”).

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United States District Court
Northern District of California

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i.

Claims 2 and 10: Excessive Fines in Violation of Eighth Amendment and
California Constitution

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Defendant moves for summary judgment as to Plaintiff’s excessive fines claims. The

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Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in

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kind, as punishment for some offense.” Timbs v. Indiana, 586 U.S. 146, 151 (2019) (internal

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quotation omitted). “[A] fine is unconstitutionally excessive under the Eighth Amendment if its

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amount ‘is grossly disproportionate to the gravity of the defendant’s offense.’” Pimentel v. City of

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L.A., 974 F.3d 917, 921 (9th Cir. 2020) (quoting United States v. Bajakajian, 524 U.S. 321, 336-

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37 (1998)). Courts consider four factors to determine whether a fine is grossly disproportionate to

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the offense: “(1) the nature and extent of the underlying offense; (2) whether the underlying

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offense related to other illegal activities; (3) whether other penalties may be imposed for the

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offense; and (4) the extent of the harm caused by the offense.” Id. Here, the RV Ordinance

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provides: “all violations of this chapter shall be an infraction and such persons shall be subject to

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citation, towing or both.” (SMC § 10.76.080.) The fine for a violation of the RV Ordinance is

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$60.00, and fines associated with the RV Ordinance “do not increase upon subsequent additional

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citations or offenses.” (7/11/24 Grutzmacher Decl., Exh. 20 at 30.)

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First, “Courts typically look to the violator’s culpability to assess this factor.” Pimentel,

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974 F.3d at 922. “[I]f culpability is high or behavior reckless, the nature and extent of the

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underlying violation is more significant. Conversely, if culpability is low, the nature and extent of

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the violation is minimal.” Id. at 923. In Pimentel, the Ninth Circuit found that the plaintiffs were
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culpable because they violated the Municipal Code by failing to pay for over-time use of a

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metered space, but that the culpability was low because the underlying parking violation was

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minor. Thus, the violations were “minimal but not de minimis.” Id. Here, as in Pimentel, an

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individual would be culpable if they violated the RV Ordinance by parking where and/or when not

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permitted. That said, there is no dispute that culpability would be minimal. (See Def.’s Mot. for

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Summ. J. at 15; Pls.’ Opp’n at 13; see also Stewart v. City of Carlsbad, No. 23cv266-LL-MSB,

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2024 U.S. Dist. LEXIS 54303, at *6 (S.D. Cal. Mar. 26, 2024) (finding that a violation of a

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municipal code prohibiting parking of oversized vehicles was “minimal but not de minimis”).

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Northern District of California

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Second, courts consider “whether the underlying offense relates to other illegal activities.”

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Pimentel, 974 F.3d at 923. Defendant contends that parking violations under the RV Ordinance

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could “be associated with other legal violations including, but not limited to violations of the 72-

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hour Ordinance, vehicles with expired registration, and/or vehicles in inoperative or dangerous

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conditions.” (Def.’s Mot. for Summ. J. at 15.) As Plaintiffs correctly point out, however,

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Defendant cites no evidence in support. In any case, courts have found that “[t]his factor is not as

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helpful to our inquiry as it might be in criminal contexts.” Pimentel, 974 F.3d at 923.

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Third, courts consider “whether other penalties may be imposed for the offense.”

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Pimentel, 974 F.3d at 923. The parties agree there is nothing in the record to suggest that other

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penalties may be imposed for the offense. (Def.’s Mot. for Summ. J. at 15; Pls.’ Opp’n at 14.)

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Finally, courts consider “the extent of the harm caused by the violation.” Pimentel, 974

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F.3d at 923. This factor “is not limited to monetary harms alone. Courts may also consider how

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the violation erodes the government’s purposes for proscribing the conduct.” Id. Defendant

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contends that it “has an interest in preventing the human health and safety impacts of long-term

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RV encampments on the city street and in ensuring adequate parking and access to public facilities

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and local businesses.” (Def.’s Mot. for Summ. J. at 15.) Plaintiffs, in turn, argue that “the act of

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parking a single disfavored vehicle during daytime in a space that is available to all other vehicles

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[] does not remotely give rise to the types of hypothetical harms conjured up by the City.” (Pl.’s

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Opp’n at 14.)

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The Court finds there is evidence in the record that the RV Ordinance was enacted in
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United States District Court
Northern District of California

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response to parking concerns. Mayor Diana Rich testified that Defendant “received a lot of

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reports of concerns about availability of parking for other purposes, and that would have been

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involving the Morris Street situation where there were lived-in vehicles who were occupying most

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of these sides of the street and then into a couple of side streets.” (Rich Dep. at 36:19-24.) Mayor

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Rich also noted that “[i]t was clear for everyone on the city council and anyone who happened to

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travel down Morris that there was a need to increase access to the shared spaces in that area.”

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(Rich Dep. at 37:20-22.) Likewise, the ”police routinely were on Morris Street and could observe

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the lack of parking.” (McLaughlin Dep. at 56:23-24.) Plaintiffs argue that these are hearsay

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complaints; even if not considering the complaints for their truth, however, the Court can consider

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the complaints for their effect on the listener, including why the City Council believed the RV

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Ordinance was needed. (Pl.’s Opp’n at 3.) In any case, Defendant also points to the personal

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observations of its staff and City Council members. In the alternative, Plaintiffs contend that

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Defendant did not conduct a formal study analyzing parking availability, but cites no legal

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authority that such a study would be required. (Id.) Finally, to the extent Plaintiffs argue that

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there was evidence that there was no parking shortage, Plaintiffs rely on a September 2018 report.

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(See Pl.’s Mot. for Summ. J. at 8.) It is unclear how a September 2018 report contradicts reports

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of inadequate parking in 2021-2022.

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The Court also finds there is evidence in the record that the RV Ordinance was enacted in

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response to health and safety concerns. City officials reported received complaints about

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“blockage on the sidewalks, human waste on the sidewalks and in the street, trash accumulations,

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blockage of sidewalks, confrontations that sometimes occurred between citizens and occupants of

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the recreational vehicles,” as well as “overflowing garbage[, ] the use of . . . generators, which

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created serious risk[, and] the piles of personal possessions that are around the vehicles.”

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(McLaughlin Dep. at 23:4-10; Rich Dep. at 154:1-5.) Former City Manager/City Attorney

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Lawrence McLaughlin also testified that he personally observed conditions including some of the

26

RVs being in poor repair without operational sanitary facilities, as well as instances of drug use,

27

the accumulation of possessions onto the sidewalk, and that the fire chief noted flammable

28

materials located around a number of RVs. (McLaughlin Dep. at 90:9-91:4, 92:9-12.) Plaintiffs
11

1

argue there is no evidence of these events, but the deposition testimony includes both complaints

2

and personal observations.4 (Pl.’s Opp’n at 3.) Plaintiff also argues there was no evidence

3

relating unhoused individuals with crime, but public safety concerns are not limited to crimes. (Id.

4

at 4.)

5

Thus, the Court finds that as to the fourth factor, Defendant is harmed because the RVs

6

were taking up parking and causing public health and safety concerns. Moreover, “[w]ithout

7

material evidence provided by appellants to the contrary, we must afford ‘substantial deference to

8

the broad authority that legislatures necessarily possess in determining the types and limits of

9

punishments.’” Pimentel, 974 F.3d at 924 (quoting Bajakajian, 524 U.S. at 336).
Considering the four factors, the Court concludes that the factors weigh in favor of finding

United States District Court
Northern District of California

10
11

that Defendant’s parking fine of $60 per occurrence is not grossly disproportionate to the

12

underlying offense of parking an RV where and when prohibited. Compare with Stewart, 2024

13

U.S. Dist. LEXIS 54303, at *7-8 ($50 parking fine for parking oversized vehicles where and when

14

prohibited was not a violation of the Eighth Amendment). Thus, the parking fine does not violate

15

the Eighth Amendment.
The Court notes Plaintiffs’ argument that the fine may not be limited to $60 because a

16
17

vehicle could be towed upon the first violation, which would subject a vehicularly housed person

18

to towing and storage fees, as well as the deprivation of their shelter. (Pls.’ Opp’n at 13.)

19

Plaintiffs also argue that $60 fines could pile up. (Id.) Even if these scenarios are possible,

20

however, Plaintiffs have not demonstrated that there is no constitutional application of the RV

21

Ordinance. Plaintiffs’ facial challenge cannot be premised “on supposition of a worst case

22

scenario that may never occur.” Planned Parenthood v. Lawall, 193 F.3d 1042, 1046 (9th Cir.

23

1999). Rather, as Defendant points out, the RV Ordinance could be applied as to a RV owned by

24

someone with ample ability to pay. (Def.’s Reply at 11.)
Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to

25
26
27
28

4

Plaintiffs also assert there is no direct evidence of, for example, an RV catching on fire. The
Court notes, however, that Plaintiff Wetch herself stated in her declaration that her trailer burned
down while she was on Morris Street. (Wetch Decl. ¶ 4.)
12

1
2

United States District Court
Northern District of California

3

Plaintiffs’ second and tenth claims.
ii.

Claim 3: State Created Danger

Defendant moves for summary judgment as to Plaintiffs’ state created danger claim. “[T]o

4

make out a successful claim under the state created danger doctrine, a plaintiff must allege facts

5

sufficient to establish that the defendant acted with deliberate indifference to a known or obvious

6

danger.” Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th Cir. 2023) (internal quotation omitted).

7

In other words, “a state actor needs to know that something is going to happen but ignore the risk

8

and expose the plaintiff to it.” Id. at 681 (internal quotation omitted). “To succeed on a state-

9

created danger claim, a plaintiff must establish that (1) a state actor’s affirmative actions created or

10

exposed him to an actual, particularized danger that he would not otherwise have faced, (2) that

11

the injury he suffered was foreseeable, and (3) that the state actor was deliberately indifferent to

12

the known danger.” Id. at 680 (internal quotation omitted).

13

Defendant argues that Plaintiffs’ asserted harms are not sufficiently known or

14

particularized. (Def.’s Mot. for Summ. J. at 16.) “A danger is ‘particularized’ if it is directed at a

15

specific victim.” Sinclair, 61 F.4th at 682; see also id. (“A ‘particularized’ danger, naturally,

16

contrasts with a general one.”). In Sinclair, the city withdrew from a particular neighborhood,

17

permitting protestors to occupy it for a month. Id. at 676. The plaintiff alleged that occupants

18

were seen carrying guns, vandalizing homes and businesses, and engaged in open drug use, but

19

that the city did not have an effective plan to provide police protection. Id. at 677. Instead, the

20

defendant allegedly provided occupiers with portable toilets, lighting, and other support. Id. The

21

plaintiff’s son visited the neighborhood and encountered an individual who believed that the

22

neighborhood was a “no-cop” zone; the individual shot the plaintiff’s son at least four times,

23

killing him. Id. The plaintiff filed suit, alleging that the city affirmatively created a danger by

24

withdrawing the police and providing supplies to encourage the occupation, in addition to

25

portraying the occupation as a fun, peaceful, cop-free protest that incited lawlessness. Id. at 682.

26

The Ninth Circuit, however, found that while the city contributed to the danger to the plaintiff’s

27

son, she had not alleged a particularized harm. Id. The plaintiff had not alleged that the city “had

28

any previous interactions with her son, directed any actions towards him, or even knew of her
13

1

son’s existence until he was killed.” Id. at 683. Rather, the plaintiff had alleged that the city’s

2

actions made the neighborhood more dangerous for all visitors; thus, “her allegations demonstrate

3

that the City-created danger was a generalized danger experienced by all those members of the

4

public who chose to visit the [area].” Id. Thus, “while the City created an actual danger of

5

increased crime, that danger was not specific to” plaintiff or her son, and her claim failed. Id. at

6

684.

United States District Court
Northern District of California

7

Here, Plaintiffs argue that Defendants are specifically targeting vehicularly-housed persons

8

through the RV Ordinance. (Pls.’ Opp’n at 15.) Plaintiffs point to their interrogatory responses,

9

which describes the general issues that Plaintiffs and other individuals with disabilities would

10

have; for example, individuals with mobility disabilities may have trouble getting up off the

11

ground, individuals with medical conditions may have problems taking or storing medications,

12

and individuals with mental health disabilities may have a greater feeling of safety in a locked

13

vehicle. (Id. (citing 7/11/24 Grutzmacher Decl., Exh. 12 at 6; Exh. 14 at 7).) Plaintiffs, however,

14

fail to explain how this satisfies Sinclair’s particularity requirement. The RV Ordinance

15

effectively affects all individuals who would park their RVs, with different impacts on

16

vehicularly-housed persons -- both with and without disabilities. Plaintiffs identify possible harms

17

that may affect people with particular disabilities, but it is unclear how this demonstrates that the

18

danger is particularly directed at Plaintiffs. Compare with Sinclair, 61 F.4th at 682-83.

19
20
21

Accordingly, the Court finds that Plaintiff has failed to identify a particularized danger,
and thus GRANTS Defendant’s motion for summary judgment as to Plaintiffs’ third claim.
iii.

Claim 4: Equal Protection

22

Both Plaintiffs and Defendant seek summary judgment as to the equal protection claim.

23

(Pls.’ Mot. for Summ. J. at 20; Def.’s Mot. for Summ. J. at 16.) “The Equal Protection Clause

24

directs that all persons similarly circumstanced shall be treated alike. But so too, the Constitution

25

does not require things which are different in fact or opinion to be treated in law as though they

26

were the same.” Plyler v. Doe, 457 U.S. 202, 216 (1982).

27
28

“The general rule is that legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate state interest.” City of
14

1

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). “When a law exhibits a desire to

2

harm an unpopular group, courts will often apply a ‘more searching’ application of rational basis

3

review.” Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1200 (9th Cir. 2018); see also City

4

of Cleburne, 473 U.S. at 441-42 (“where individuals in the group affected by the law have

5

distinguishing characteristics relevant to interests the State has the authority to implement, the

6

courts have been very reluctant . . . to closely scrutinize legislative choices as to whether, how, and

7

to what extent those interests should be pursued”). Thus, the government “may not rely on a

8

classification whose relationship to an asserted goal is so attenuated as to render the distinction

9

arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.

United States District Court
Northern District of California

10

Here, Plaintiffs assert that the RV Ordinance is targeting vehicularly-housed individuals.

11

(Pl.’s Mot. for Summ. J. at 22.) As this “is not a traditionally suspect class, a court may strike

12

down the challenged statute under the Equal Protection Clause if the statute serves no legitimate

13

government purpose and if impermissible animus toward an unpopular group prompted the

14

statute’s enactment.” Animal Legal Def. Fund, 878 F.3d at 1200.

15

The parties largely dispute whether there was impermissible animus towards the

16

vehicularly-housed. (Pl.’s Mot. for Summ. J. at 22; Def.’s Opp’n at 18-19.) Regardless, however,

17

the Court finds that Defendant is entitled to summary judgment because Defendant has established

18

that the RV Ordinance serves other legitimate government purposes. As discussed above with

19

respect to the Excessive Fines claim, Defendant has established that the RV Ordinance was

20

enacted in response to concerns about public safety and health, as well as the availability of

21

parking. Again, Plaintiffs argue that the parking justification was pretextual, pointing to the lack

22

of a study regarding parking availability and the 2018 report. (Pl.’s Mot. for Summ. J. at 22.)

23

Plaintiffs still fail to explain why a parking study was required, or how the 2018 report is relevant

24

to the conditions that existed years later. This alone is sufficient to warrant summary judgment in

25

favor of Defendant, as the RV Ordinance can only be struck down if there is “no legitimate

26

governmental purpose.” Animal Legal Def. Fund, 878 F.3d at 1200 (emphasis added). Likewise

27

while Plaintiffs argue that the RV Ordinance’s goal of actively regulating the parking of RVs is

28

improper, Defendant points out that this was related to the public health and safety issues that had
15

1

arisen over the years with respect to RVs. (Def.’s Opp’n at 21; see also 7/11/24 Grijalva Decl.,

2

Exh. 22 (RV Ordinance, stating that “WHEREAS, conditions of extreme peril to the safety of

3

persons and property has arisen within the City as to homeless in general and particularly as to

4

those who are living in RVs or cars on Morris Street and Laguna Park Way, and that action is

5

needed”). As discussed above, this too would support the RV Ordinance. Thus, the RV

6

Ordinance “does not offend the Equal Protection Clause because it does not rest exclusively on an

7

‘irrational prejudice’ against” vehicularly-housed individuals. Animal Legal Def. Fund, 878 F.3d

8

at 1201.

9
10

United States District Court
Northern District of California

11

Accordingly, the Court GRANTS Defendant’s motion for summary judgment, and
DENIES Plaintiff’s motion for summary judgment as to the equal protection claim.
iv.

Claim 5 and 11: Unreasonable Seizure of Property

12

Defendant moves for summary judgment as to Plaintiffs’ unreasonable seizure claim.

13

(Def.’s Mot. for Summ. J. at 19.) Again, the RV Ordinance permits the towing of vehicles. As no

14

Plaintiff has had their RV towed pursuant to the RV Ordinance, Plaintiffs are bringing a facial

15

challenge to the RV Ordinance’s towing provision.

16

“Because warrantless searches and seizures are per se unreasonable, the government bears

17

the burden of showing that a warrantless search or seizure falls within an exception to the Fourth

18

Amendment’s warrant requirement.” United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir.

19

2012). Here, Defendant points to the “community caretaking” exception. (Def.’s Mot. for Summ.

20

J. at 19.) Under this exception, “police officers may impound vehicles that jeopardize public

21

safety and the efficient movement of vehicular traffic. Whether an impoundment is warranted

22

under this community caretaking doctrine depends on the location of the vehicle and the police

23

officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism

24

or theft.” Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (internal quotation

25

omitted). A citation for a non-criminal traffic violation “is not relevant except insofar as it affects

26

the driver’s ability to remove the vehicle from a location at which it jeopardizes the public safety

27

or is at risk of loss.” Id. That said, the Supreme Court has recognized that “[p]olice will also

28

frequently remove and impound automobiles which violate parking ordinances and which thereby
16

United States District Court
Northern District of California

1

jeopardize both the public safety and the efficient movement of vehicular traffic.” South Dakota

2

v. Opperman, 428 U.S. 364, 369 (1976).

3

Defendant argues that there are scenarios where a vehicle will be towed under the RV

4

Ordinance that would fall under the community caretaking exception, such as when an RV is

5

blocking access to parking for public facilities or local businesses, is parked in a way that

6

interferes with street cleaning or road repair activities, or is responsible for some of the public

7

health and safety issues that existed with the prior RV encampment. (Def.’s Mot. for Summ. J. at

8

20.) Plaintiffs, in turn, contend that the community caretaking doctrine would not apply to a

9

vehicle that is stationary, not obstructing traffic, located where other vehicles are allowed to park,

10

and not overstaying a meter. (Pls.’ Opp’n at 17.) Again, to prevail on a facial challenge, Plaintiffs

11

“must establish that no set of circumstances exists under which the Act would be valid.” Salerno,

12

481 U.S. at 745. It is not sufficient for Plaintiffs to identify one set of circumstances where the

13

RV Ordinance would be void; thus, Plaintiffs’ failure to challenge the validity of towing a vehicle

14

that is, for example, affecting the efficient movement of vehicular traffic by taking up parking

15

needed by other vehicles for use at public facilities or local facilities is fatal to their facial

16

challenge. The Court therefore GRANTS Defendant’s motion for summary judgment as to the

17

unreasonable seizure of property claim.

18
19

v.

Claim 6: Procedural Due Process

Defendant moves for summary judgment as to Plaintiffs’ procedural due process claim.

20

(Def.’s Mot. for Summ. J. at 20.) Plaintiffs’ procedural due process claim concerns notice when a

21

vehicle is towed. (Compl. ¶ 85.) Again, as no Plaintiff has had their RV towed pursuant to the

22

RV Ordinance, Plaintiffs are bringing a facial challenge.

23

“Due process requires that individualized notice be given before an illegally parked car is

24

towed unless the state has a ‘strong justification’ for not doing so.” Grimm v. City of Portland,

25

971 F.3d 1060, 1063 (9th Cir. 2020); see also id. at 1064 (“In short, pre-towing notice is

26

presumptively required.”). The notice must be “reasonably calculated, under all the

27

circumstances, to apprise interested parties of the pendency of the action and afford them an

28

opportunity to present their objections.” Id. at 1068.
17

United States District Court
Northern District of California

1

Defendant identifies several ways notice is provided, including the publication of its

2

ordinances on the website, the posting of a sign at the entrance to the city and at Morris Street, and

3

its pattern and practice of issuing warnings before any tows. (Def.’s Mot. for Summ. J. at 21.)

4

The Court agrees with Plaintiff that it is unclear how the publication of its ordinances on the

5

website and the posting of a sign is sufficient to provide individualized notice prior to towing.5

6

Defendant, however, also states that it has a pattern and practice of issuing warnings before any

7

tows. (Def.’s Mot. for Summ. J. at 21.) While Plaintiffs dispute the evidence as to whether

8

Defendant does, in fact, have such a pattern and practice, this is beside the point. Because this is a

9

facial challenge, Plaintiffs must establish that there is no situation in which the RV Ordinance

10

applies that would not be valid. If Defendant, for example, provides an individualized, verbal

11

warning to an RV owner before towing, Plaintiff does not suggest that this would be insufficient to

12

provide the required individualized notice. Thus, because there are circumstances in which

13

Defendant can provide adequate notice to satisfy the requirements for procedural due process,

14

Plaintiff’s facial challenge fails. The Court GRANTS Defendant’s motion for summary judgment

15

as to the procedural due process claim.

16

vi.

Claim 7: Void for Vagueness

Both Plaintiffs and Defendant move for summary judgment as to Plaintiffs’ void for

17
18

vagueness claim. (Pls.’ Mot. for Summ. J. at 15; Def.’s Mot. for Summ. J. at 21.) Unlike other

19

facial challenges, the Ninth Circuit has concluded that the Supreme Court “expressly rejected the

20

notion that a statutory provision survives a facial vagueness challenge merely because some

21

conduct clearly falls within the statute’s scope.” Guerrero v. Whitaker, 908 F.3d 541, 544 (9th

22

Cir. 2018); see also id. (finding that “the Court rejected the legal standard ‘that a statute is void for

23

vagueness only if it is vague in all its applications.’”) (quoting Johnson v. United States, 576 U.S.

24
25
26
27
28

5

To the extent that Defendant relies (in its reply) on United States v. Locke, 471 U.S. 84 (1985)
for the proposition that legislatures provide constitutionally adequate process when altering
substantive rights through enactment of rules of general applicability by enacting a statute and
publishing it, Defendant cites no authority that Locke would apply to the issue of whether there
was adequate individualized notice prior to a towing. (See Def.’s Reply at 14.) In any case,
arguments made for the first time on reply are improper. See In re Estate of Saunders, 745 F.3d at
962 n.8 (“Arguments raised . . . only on reply, are generally deemed waived.”).
18

United States District Court
Northern District of California

1

591, 624-25 (2015)). Rather, “[a]n ordinance is unconstitutionally vague if it fails to provide

2

people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,

3

or if it authorizes or even encourages arbitrary and discriminatory enforcement.” Gospel Missions

4

of Am. v. City of L.A., 419 F.3d 1042, 1047 (9th Cir. 2005) (internal quotation omitted). That said,

5

“perfect clarity and precise guidance have never been required[.]” Id. (internal quotation omitted);

6

see also Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (“Condemned to the use of words,

7

we can never expect mathematical certainty from our language.”).6

8

Here, Plaintiffs identify four provisions of the RV Ordinance that it asserts are

9

unconstitutionally vague: (1) the meaning of “Recreational Vehicle,” (2) the meaning of how a

10

street is “zoned,” (3) the meaning of parking “on a park, square, or alley,” and (4) the meaning of

11

“city-related business.” (Pl.’s Mot. for Summ. J. at 16-18.) As a procedural matter, Defendant

12

argues that other than the meaning of “Recreational Vehicle,” Plaintiffs did not identify the other

13

three provisions as being unconstitutionally vague in their complaint. (Def.’s Opp’n at 23.) Thus,

14

Defendant argues that Plaintiffs are raising new theories of vagueness for the first time in the

15

motion for summary judgment. (Id.)

16

In Desertrain v. City of Los Angeles, the plaintiff challenged the enforcement of a

17

municipal code section as violating due process but did not specifically allege that the statute was

18

unconstitutionally vague until summary judgment proceedings. 754 F.3d 1147, 1152, 1154 (9th

19

Cir. 2014). The Ninth Circuit found that the district court abused its discretion by not addressing

20

the vagueness claim, explaining that “[w]here plaintiffs fail to raise a claim properly in their

21

proceedings, if they raised it in their motion for summary judgment, they should be allowed to

22

incorporate it by amendment under Fed.R.Civ.P. 15(b).” Id. at 1154 (cleaned up). The Ninth

23

Circuit found amendment was warranted after considering the five factors that “are taken into

24
25
26
27
28

Plaintiffs assert (in their reply) that in Forbes v. Napolitano, the Ninth Circuit found that “where
a statute criminalizes conduct, the law may not be impermissibly vague in any of its applications.”
236 F.3d 1009, 1012 (9th Cir. 2000). Notably, Forbes has never been cited by another case for
this proposition. Indeed, in Phelps v. Budge, the Ninth Circuit explained: “This is not the law.
The quoted language from Forbes was amended by this court to provide that a ‘law may be
invalidated on vagueness grounds even if it could conceivably have some valid application.’” 188
Fed. Appx. 616, 619 (9th Cir. 2006).
19
6

1

account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to

2

the opposing party, futility of amendment, and whether the plaintiff had previously amended the

3

complaint.” Id. (internal quotation omitted).

United States District Court
Northern District of California

4

The same conclusion applies here. First, there is no evidence of bad faith, and Defendant

5

does not suggest otherwise. Second, while the Court agrees with Defendant that there does not

6

appear to be any justification for the failure to earlier request amendment, “[u]ndue delay by itself

7

is insufficient to justify denying leave to amend.” United States v. United Healthcare Ins. Co.,

8

848 F.3d 1161, 1184 (9th Cir. 2016). Third, Defendant has identified no prejudice. Notably, the

9

Ninth Circuit has found that questioning during deposition can put a party on notice of a

10

vagueness challenge. See Desertrain, 754 F.3d at 1154 (“Plaintiffs’ attorney repeatedly asked

11

Defendants during their depositions whether Task Force officers had any criteria to limit their

12

enforcement of Section 85.02 . . . . This questioning put Defendants on notice that Plaintiffs were

13

concerned with the vagueness of Section 85.02[.]”). Here, Plaintiffs questioned Defendant’s

14

witnesses about its other three bases for vagueness. (Pls.’ Reply at 10.) Further, Defendants had

15

the opportunity to fully litigate the vagueness issue in its opposition. Fourth, there is no showing

16

that amendment would be futile. Finally, Plaintiffs have never amended their complaint. Thus,

17

amendment is warranted, and the Court will consider each basis for vagueness.

18
19
20
21
22
23
24
25
26

a. Meaning of “Recreational Vehicle”
SMC § 10.76.030 states:
“Recreational Vehicle” or “RV” means a motorhome, travel trailer,
truck camper, camping trailer, or other vehicle or trailer, with or
without motive power, designed or altered for human habitation for
recreational, emergency, or other human occupancy. “Recreational
vehicle” specifically includes, but is not limited to: a “recreational
vehicle” as defined by Cal. Health & Safety Code § 18010; a “truck
camper” as defined by Cal. Health & Safety Code § 18013.4; a
“camp trailer” as defined in Cal. Veh. Code § 242; a “camper” as
defined in Cal. Veh. Code § 243; a “fifth-wheel travel trailer” as
defined in Cal. Veh. Code § 324; a “house car” as defined by Cal.
Veh. Code § 362; a “trailer coach” as defined in Cal. Veh. Code §
635; a van camper; or a van conversion.

27

Specifically, Plaintiffs take issue with the phrase “altered for human habitation.” (Pls.’ Mot. for

28

Summ. J. at 9, 17.)
20

In Desertrain, the Ninth Circuit found that the prohibition on using a vehicle “as living

1
2

quarters either overnight, day-by-day, or otherwise” was vague, as the statute did not define

3

“living quarters” or “otherwise.” 754 F.3d at 1155. Further, there was actual evidence of the

4

city’s enforcement practices, under which neither sleeping in the vehicle nor keeping a plethora of

5

belongings was required to constitute a violation of the statute. Id. Under such circumstances, it

6

was unclear what behavior was prohibited.
Here, Defendant argues that the term is not vague because “altered for human habitation”

United States District Court
Northern District of California

7
8

follows a list of specifically defined vehicle types, and must therefore be read in the context of

9

those examples. (Def.’s Opp’n at 24.) Defendant further argues that the term “altered” modifies

10

“or other vehicle or trailer,” and is therefore clearly intended to describe a person altering a

11

vehicle or trailer to make it fit for human habitation.
Plaintiffs, in turn, argue that it is not clear if “altered for human habitation” requires a

12
13

permanent modification or not. (Pl.’s Mot. for Summ. J. at 9, 17.) In support, Plaintiffs point to

14

the deposition testimony of various city officials.7 For example, Police Chief Ronald Nelson and

15

Mayor Rich both testified that a “recreational vehicle” would need to be altered in a more

16

permanent manner, such that a vehicle with a mattress or sleeping bag would not qualify as a RV.

17

(Nelson Dep. at 27:9-24; Rich Dep. at 68:15-70:13.) Former Police Chief Kilgore testified that

18

the purpose of the RV Ordinance was to regulate parking of vehicles actively used as sleeping

19

accommodations, which would include vans in which people were sleeping. (Kilgore Dep. at

20

31:17-32:10.) Finally, former City Manager/City Attorney McLaughlin testified that the RV

21

Ordinance was intended to address people who were living in their cars. (McLaughlin Dep. at

22

97:22-98:7.) When asked about the meaning of “altered for human habitation,” McLaughlin

23

testified that he could “argue it both ways” in terms of whether a change needed to be permanent.

24

(McLaughlin Dep. at 47:10-14.) That said, McLaughlin stated that it could be a change to the

25

physical characteristics or to something that is loaded into the vehicle as long as it was not easily

26
27
28

Defendant objects to this testimony as inadmissible legal conclusions. (Def.’s Opp’n at 25.) The
Court does not consider this testimony as legal conclusions for what the RV Ordinance means.
Rather, the Court considers this testimony for how a person of ordinary intelligence may interpret
the RV Ordinance, to the extent that it may be relevant.
21
7

United States District Court
Northern District of California

1

removed. (McLaughlin Dep. at 47:14-48:6; see also McLaughlin Dep. at 47:4-9 (testifying that a

2

physical change was required, such that putting a mattress in the back seat of a sedan would not

3

constitute an alteration).) McLaughlin went on to state that occupying a vehicle as a living space

4

would fall into the definition, but he distinguished between a sleeping bag or a third-row seat

5

being pulled down not being sufficient and the inclusion of a built-in cooking area or refrigerated

6

unit being sufficient. (McLaughlin Dep. at 49:16-50:19, 52:8-53:19.)

7

The Court finds that the term “altered for human habitation,” as written, is not vague. As

8

Defendant points out, the language itself is clear that “altered” requires a change to a vehicle that

9

makes it fit for human occupancy. The language is distinguishable from Desertrain in that it is in

10

the context of other specific types of vehicles, which would allow an ordinary reader to understand

11

that the type of change required needs to make a vehicle comparable to those specifically

12

identified. While Plaintiffs complain that it is unclear if the alteration must be permanent or not,

13

and whether the alteration can be to a truck or car, this does not make the term impermissibly

14

vague. Again, the issue is whether the alteration is sufficient to change the vehicle to make it fit

15

for human occupancy. The testimony cited by Plaintiffs makes clear that this alteration must be

16

something more than simply putting a mattress or sleeping bag in a vehicle; rather, the alteration

17

must be more permanent and/or not easily removed, similar to the specific vehicles identified in

18

SMC § 10.76.030.8 Thus, it is unclear why this would be so vague as to “fail[] to provide people

19

of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.”

20

Gospel Missions of Am., 419 F.3d at 1047.

21

b. Meaning of “Zoned”
The RV Ordinance prohibits parking of an RV “on any public street in the City that is

22
23

zoned residential at any time,” and parking “on any public street in the City that is zoned

24

commercial, industrial, or community facility at any time between the hours of 7:30 a.m. and

25

10:00 p.m.” (SMC § 10.76.040.) Plaintiffs argue that referring to streets by their zoning is

26
27
28

8

While former Police Chief Kilgore and former City Manager/City Attorney McLaughlin stated
that the RV Ordinance was intended to address people living in vehicles, this is a separate issue
from whether the specific language of the RV Ordinance is vague.
22

United States District Court
Northern District of California

1

ambiguous because streets are not zoned; rather, it is the property parcels that are zoned. (Pls.’

2

Mot. for Summ. J. at 10, 17.) Defendant, in turn, acknowledges that the streets are not themselves

3

zoned, but that a person of ordinary intelligence would understand that a street within a residential

4

district would likewise be residential. (Def.’s Opp’n at 26.) Further, if a street borders two zoning

5

districts, with one side zoned community facility and the other side zoned residential, then the RV

6

Ordinance would allow overnight parking on the side zoned community facility and no parking on

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the side zoned residential. (Id.)

8

It is not clear how this provision is vague. While streets are not themselves zoned, the

9

Court agrees with Defendant that a person of ordinary intelligence would understand that their

10

“zoning” is tied to the adjoining property parcels. This applies even where each side of the street

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adjoins property parcels zoned in different ways; the zoning would apply to that side of the street.

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While Plaintiffs point to the testimony of one individual -- former Police Chief Kilgore -- as

13

offering a contrary interpretation to this hypothetical, it is not apparent that the opinion of one

14

person can create a genuine dispute of material fact as to whether the plain language is clear. See

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Hernandez v. City of Phoenix, 541 F. Supp. 3d 996, 1002 (D. Ariz. 2021) (“But circumstances

16

where deponents randomly provide equivocal responses to hypotheticals concerning the Policy’s

17

potential application does not aid Plaintiffs’ [vagueness] claim.”). Further, “[s]peculation about

18

possible vagueness in hypothetical situations not before the Court will not support a facial attack

19

on a statute when it is surely valid in the vast majority of its intended applications.” Tucson v.

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City of Seattle, 91 F.4th 1318, 1330 (9th Cir. 2024).

21

In the alternative, Plaintiffs argue that there are no street signs indicating how an area is

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zoned, but cites no authority that such signage is required to show a lack of vagueness. Compare

23

with Washington Cty. v. Stearns, 3 Ore. App. 366, 370 (1970) (rejecting argument that an

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ordinance was vague where it adopted detailed zoning regulations, and the defendant could have

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referred to the ordinance and zoning maps to ascertain the zoning of his property). Plaintiffs also

26

argue that Defendant’s zoning map on the internet is insufficient because there are two zoning

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designations where it is unclear if the zoning is residential, commercial, industrial, or community

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facility. (Pls.’ Mot. for Summ. J. at 17.) Specifically, the zoning map zones certain areas as
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United States District Court
Northern District of California

1

“Downtown Core” and “Planned Community.” Defendant responds that the Municipal Code

2

clarifies the zoning districts; for example, the “Downtown Core” district is located in the

3

Municipal Code chapter concerning commercial, office, and industrial districts. (Def.’s Opp’n at

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27; 8/1/24 Grutzmacher Decl., Exh. 6.) The Court agrees that the availability of the zoning maps

5

and Municipal Code are sufficient to allow a person of ordinary intelligence to determine where

6

they can and cannot park.

7

Moreover, as a practical matter, there is an appreciable difference between residential and

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commercial areas that a person of ordinary intelligence would understand. Even without referring

9

to a zoning map, a person of ordinary intelligence would be able to use their common sense to

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determine from their surroundings if they are in a residential neighborhood or a downtown

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commercial area. While the parties may argue about the legal effect of each specific parcel and

12

zoning designation, again, the question is whether a person of ordinary intelligence would

13

understand what is prohibited.
c. Meaning of Parking “on a Park, Square, or Alley”

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The RV Ordinance makes it “unlawful for a person to park or leave standing any

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recreational vehicle on any park, square, or alley at any time.” (SMC § 10.76.040(C).) Plaintiffs

17

contend there is some confusion as to whether this prohibition extends to adjacent streets and

18

parking lots. (Pls.’ Mot. for Summ. J. at 18.) The Court disagrees. As Defendant points out, the

19

language itself is unambiguous, and does not state or suggest that it would extend to adjacent

20

streets and parking lots. Again, Plaintiffs’ reliance on the testimony of a single individual who

21

believed that prohibition of parking on the square would include the parking lot that surrounded

22

the square based on what they remembered of the map is not convincing; “[s]peculation about

23

possible vagueness in hypothetical situations not before the Court will not support a facial attack

24

on a statute where it is surely valid in the vast majority of its intended applications.” Tucson, 91

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F.4th at 1330.

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d. Meaning of “City-Related Business”

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Finally, the RV Ordinance makes it “unlawful for a person to park or leave standing any

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recreational vehicle in any City-owned parking lot at any time unless that person is conducting
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United States District Court
Northern District of California

1

City-related business during business hours. The City-owned parking lots for the Police, Fire,

2

Public Works, and City Hall buildings may only be used when actively conducting business at

3

those specific buildings.” (SMC § 10.76.040.) Plaintiffs argue that there are conflicting

4

interpretations of “City-related business,” again relying on deposition testimony of various city

5

officials. (Pls.’ Mot. for Summ. J. at 13, 18.)

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Police Chief Nelson interpreted “City-related business” as business being conducted with

7

the city, such as reporting a crime and obtaining a business permit. (Nelson Dep. at 40:3-15.) He

8

did not believe it would include walking on the local trail or seeing a movie. (Nelson Dep. at

9

40:16-22.) Former City Manager/City Attorney McLaughlin interpreted “City-related business” to

10

mean the municipal use for whatever the parking lot was designated for, pointing to an example of

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a parking lot designated for use at the library, city hall, and senior center being available for

12

conducting business only at those locations. (McLaughlin Dep. at 76:11-22.) Mayor Rich, in

13

contrast, believed that individuals parking in a public lot would not have to be engaged in business

14

with the city government, but could park there to use services offered by any businesses within the

15

city such as a bookstore, supermarket, or public park. (Rich Dep. at 104:19-105:13.) Police Chief

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Kilgore stated that the City Council used a more expansive interpretation of “City business” to

17

include services with any businesses within the city, such as an ice cream shop or hiking on trails

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within the city limits. (Kilgore Dep. at 55:3-56:4.) Finally, Parking Enforcement officer Michelle

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Beckman testified that she would not cite someone using a business such as a grocery store or

20

getting something to eat. (7/11/24 Grijalva Decl., Exh. 4 (“Beckman Dep.”) at 38:16-21.)

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Defendant, in turn, asserts that as long as the city-owned lot is not tied to the Police, Fire, Public

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Works, and City Hall buildings, an RV can park in a city-owned lot to shop, visit a restaurant,

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enjoy public facilities, or conduct any other business within the city. (Def.’s Opp’n at 28.)

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The Court finds that the plain language of “City-related business” is clear -- it concerns

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business with the city government. The second sentence supports this definition; it states that

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certain city lots connected to specific city government buildings can only be used for those

27

buildings. The fact that Defendant interprets “City-related business” more broadly is of no

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consequence; it does not make the language vague, even if it does not comport with Defendant’s
25

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own intent. Indeed, a person of ordinary intelligence would likely not be privy to the city

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council’s intent when they passed the RV Ordinance, and thus would not be confused by

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Defendant’s differing interpretation of this provision. Rather, a person of ordinary intelligence

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would read the RV Ordinance as it is written and understand it to mean that RVs can park in city-

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owned lots only if conducting business with the city government. If Defendant intended the

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ordinance to have a more expansive meaning, it should so amend.

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e. Discriminatory Enforcement

United States District Court
Northern District of California

8

Finally, Plaintiffs argue that the RV Ordinance is void for vagueness because it authorizes

9

and encourages discriminatory enforcement. (Pls.’ Mot. for Summ. J. at 19.) “An

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unconstitutionally vague law invites arbitrary enforcement . . . if it leaves judges and jurors free to

11

decide, without any legally fixed standards, what is prohibited and what is not in each particular

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case.” Beckles v. United States, 580 U.S. 256, 266 (2017); see also Grayned, 408 U.S. at 108-09

13

(“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for

14

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

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discriminatory application.”) For example, in Coates v. Cincinnati, the Supreme Court found a

16

law was unconstitutionally vague because it prohibited conduct that was “annoying to persons

17

passing by.” 402 U.S. 611, 612 (1971). The Supreme Court, however, pointed out that “[c]onduct

18

that annoys some people does not annoy others.” Id. at 614. In short, rather than prohibit specific

19

conduct -- e.g., blocking sidewalks, obstructing traffic, or littering -- the statute was “dependent

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upon each complainant’s sensitivity.” Id. at 613-14.

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Here, Plaintiffs assert that the RV Ordinance will allow discriminatory enforcement

22

because it was passed with the expectation that it would be “complaint-driven.” (Nelson Dep. at

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35:22-36:1.) The Court observes that this testimony was specific to the limited exception for

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loading and unloading RVs in residential areas, not to the entire RV Ordinance. Former Police

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Chief Kilgore also commented that the police were less likely to go after a VW van that had been

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modified for habitation but was in downtown for a meal, as opposed to a vehicle that was staying

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in the same spot for long periods of time as that would suggest they were actually living in the

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vehicle. (7/11/24 Grijalva Decl., Exh. 24.) The fact that the police may selectively enforce the
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United States District Court
Northern District of California

1

RV Ordinance, however, does not mean that the RV Ordinance delegates basic policy matters to

2

the police, judges, or juries. This is not a situation where the officers would have to make a

3

determination of what a vague term means, such as “annoying.” Rather, even if a vehicle satisfied

4

the definition of a RV, an officer may choose not to enforce the RV Ordinance not based on their

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interpretation of the RV Ordinance, but on their discretion. In short, the standard of conduct is

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clear; how and when officers enforce the RV Ordinance is not based on officers applying their

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own sensitivities to determine whether the RV Ordinance is actually violated.

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Accordingly, the Court concludes that the RV Ordinance is not void for vagueness. The

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Court GRANTS Defendant’s motion for summary judgment, and DENIES Plaintiffs’ motion for

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summary judgment.

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vii.

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Claims 8 and 9: Right to Travel

Defendant seeks summary judgment as to Plaintiffs’ right to travel claim. “The right to

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travel, or right of migration, now is seen as an aspect of personal liberty which, when united with

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the right to travel, requires ‘that all citizens be free to travel throughout the length and breadth of

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our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this

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movement.’” Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 1098 (quoting Shapiro v. Thompson,

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394 U.S. 618, 629 (1969)). “A state law implicates the right to travel when it actually deters such

18

travel, when impeding travel is its primary objective, or when it uses any classification which

19

serves to penalize the exercise of that right.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,

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903 (1986). That said, “[t]he right to travel does not . . . endow citizens with a right to live or stay

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where one will.” Tobe, 9 Cal. 4th at 1103.

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The Court finds that the RV Ordinance does not impinge on the right to travel. In Potter v.

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City of Lacey, the Ninth Circuit found that an ordinance which prohibited RV owners from

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parking their RVs on the city’s public spaces and roadways for longer than four hours within any

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twenty-four-hour period “d[id] not violate any right to free movement.” 46 F.4th 787, 798 (9th

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Cir. 2022). Specifically, “[t]he RV Parking Ordinance does not prevent RV owners from traveling

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locally through public spaces and roadways.” Id. at 799. Rather, RV owners could still “travel

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along the same public spaces and roadways on which it forbids them from parking for more than
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United States District Court
Northern District of California

1

four hours.” Id.; see also Allen v. City of Sacramento, 234 Cal. App. 4th 41, 55 n.1 (2015) (an

2

ordinance making it unlawful to camp on public or private property ordinance did not violate the

3

right to travel because “[t]he ordinance, on its face, does not restrict travel into or out of the City

4

[and] does not discriminate based on residency or duration of residency”).

5

Here, Plaintiffs assert that the RV Ordinance deters Plaintiffs from traveling because they

6

cannot park anywhere in the city during the day, thus preventing them from traveling into the city

7

at all. (Pls.’ Opp’n at 19.) The RV Ordinance itself, however, does not restrict travel into or out

8

of the city, and does not discriminate based on residency. Rather, like the ordinance in Potter, it

9

prohibits the parking of a certain type of vehicle during certain parts of the day. Plaintiffs may

10

still freely enter into the city; they cite no authority that they are entitled to enter into the city in

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the vehicle of their choice or for any purpose that they desire. There is also no suggestion that the

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RV Ordinance favors residents over non-residents; both residents and non-residents are subject to

13

the same prohibitions on parking RVs. Finally, as Defendant pointed out at the hearing, a person

14

driving an RV could still park in private lots, such as a supermarket parking lot, if the private

15

business owner so allows.
The Court therefore GRANTS Defendants’ motion for summary judgment as to Plaintiffs’

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right to travel claims.

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viii.

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Claims 12, 13, and 14: Violation of the ADA, California Disabled Persons
Act, and California Government Code § 11135

Finally, Defendant seeks summary judgment as to Plaintiffs’ disability claims. Plaintiffs

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21

bring claims under various disability laws, including Title II of the ADA, asserting that RV

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Ordinance excludes Plaintiffs from a city service, program, or activity on the basis of their

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disability.9 (Pls.’ Opp’n at 20.) To assert a claim under Title II of the ADA, a plaintiff must

24

demonstrate: (1) they are an individual with a disability, (2) they are otherwise qualified to

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participate in or receive the benefit of a public entity’s services, programs, or activities, (3) they

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were excluded from participation in or denied the benefits of the public entity’s services,

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There is no dispute that Plaintiffs’ disability claims are coextensive, and thus the same standard
applies to them all. (Def.’s Mot. for Summ. J. at 27; Pl.’s Opp’n at 20 n.15.)
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9

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programs, or activities, or were otherwise discriminated against by the public entity, and (4) the

2

exclusion, denial of benefits, or discrimination was due to their disability. O’Guinn v. Lovelock

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Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007). Plaintiffs have the burden of establishing the

4

elements of their prima facie case. Pierce v. Cty. of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008).

5

Assuming that Plaintiffs Corley and Wetch are individuals with disabilities, Plaintiffs must

6

demonstrate the remaining elements.
Plaintiffs assert that “on-street parking” is a city-program that must be accessible. (Pls.’

United States District Court
Northern District of California

7
8

Opp’n at 22.) Plaintiffs, however, do not explain why this includes the right to park an RV on the

9

streets, nor do they provide any authority in support. Even if Plaintiffs have a disability-related

10

need to reside in their vehicles when they lack other housing, this does not mean they are unable

11

to access on-street parking; Plaintiffs may still park in the city, so long as it is not in an RV.

12

Plaintiffs do not assert that they are unable to drive any vehicle except an RV due to their

13

disabilities. Indeed, Plaintiff Corley has testified that she owns a personal vehicle, which she is

14

then able to park in the city when running errands and traveling around town. (See 7/11/24

15

Grutzmacher Decl., Exh. 15 at 29:22-30:4, 47:10-15.)

16

Further, even if Plaintiffs could establish a prima facie case, “[t]he public entity may then

17

rebut this by showing that the requested accommodation would require a fundamental alteration or

18

would produce an undue burden.” Pierce, 526 F.3d at 1217. As an initial matter, the parties

19

dispute whether Plaintiffs made an adequate request for reasonable accommodations. (Def.’s Mot.

20

for Summ. J. at 27; Pls.’ Opp’n at 23.) Specifically, Plaintiffs’ counsel sent a letter demanding

21

that Defendant rescind the ordinance.10 See 8/1/24 Grijalva Decl., Exh. 4.) It is unclear that a

22

letter demanding that an entire ordinance be rescinded constitutes a request for a reasonable

23

accommodation. In any case, Defendant correctly points out that “[a] program for public

24

parking . . . is fundamentally different than a program allowing for residing on City streets.”

25

(Def.’s Reply at 17.) Plaintiffs are effectively requesting that they be allowed to park their RVs in

26
27
28

10

Plaintiffs assert that they also requested that Defendant not enforce the RV Ordinance against
individuals with a disability-related need to reside in their vehicles. (Pls.’ Opp’n at 23.) Plaintiffs
do not provide a pin cite, nor could the Court find such a request in their demand letter.
29

1

the city because they need to be able to live in their RVs, not because they are unable to access

2

parking otherwise. The Court knows of no authority that would support such a demand.

3

Accordingly, the Court GRANTS Defendant’s motion for summary judgment on

4

Plaintiffs’ disability claims.
IV.

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7
8
9

CONCLUSION

For the reasons stated above, the Court GRANTS Defendant’s motion for summary
judgment and DENIES Plaintiffs’ motion for partial summary judgment.
IT IS SO ORDERED.
Dated: November 22, 2024
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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