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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 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, 8 9 Case No. 22-cv-06474-KAW v. 10 CITY OF SEBASTOPOL, 11 Defendant. Re: Dkt. Nos. 62, 65 12 13 On October 25, 2022, Plaintiffs David Allen Yesue, Paige Elightza Corley, Jessica Marie 14 Wetch, and Sonoma County Acts of Kindness (“AoK”) filed the instant action challenging 15 Defendant City of Sebastopol’s enactment of Ordinance No. 1136 (the “RV Ordinance”) as 16 unconstitutional. (Compl., Dkt. No. 1.) Pending before the Court is Plaintiffs’ motion for partial 17 summary judgment and Defendant’s motion for summary judgment. (Pls.’ Mot. for Summ. J., 18 Dkt. No. 62; Def.’s Mot. for Summ. J., Dkt. No. 65.) 19 Having considered the parties’ filings, the relevant legal authorities, and the arguments 20 made at the September 5, 2024 hearing, the Court GRANTS Defendant’s motion for summary 21 judgment and DENIES Plaintiffs’ motion for partial summary judgment. 22 23 I. BACKGROUND Like many cities, Defendant has experienced a dramatic rise in the homeless population. 24 (Compl. ¶ 1.) Beginning around 2018, unhoused individuals living in Residential Vehicles 25 (“RVs”) began to increase in Morris Street and the surrounding residential area, resulting in 26 complaints from the community. (7/11/24 Grutzmacher Decl., Exh. 5 (“Rich Dep.”) at 27 COS0029364; 7/11/24 Grijalva Decl., Exh. 1 (“McLaughlin Dep.”) at 93:1-20; Exh. 6 (“Kilgore 28 Dep.”) at 16:5-11.) For example, there were complaints about RVs using nearly all of the parking United States District Court Northern District of California 1 spaces on Morris Street, as well as concerns and complaints about human waste on the sidewalks 2 and in the street, leaking sewage, accumulation of trash and possessions around the vehicles, drug 3 use, a vehicle catching fire and burning, the use of gas generators, a RV occupant passing away in 4 his vehicle, and confrontations between citizens and RV occupants. (McLaughlin Dep. at 22:25- 5 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 6 Dep. at 27:8-14, 29:12-15; 7/11/24 Grutzmacher Decl., Exh. 8 (“Nelson Dep.”) at 19:12-15, Exh. 7 20 at 38; Wetch Decl. ¶ 4, Dkt. No. 68-6 (“While I was on Morris Street, my trailer was burned 8 down[.]”).) The police chief estimated that 20-30% of calls were related to unhoused individuals, 9 including by local merchants concerned about the effect of the RV presence on their businesses, 10 although no direct link between the RV dwellers and crime was established. (Nelson Dep. at 11 19:23-24, 41:4-7, 47:4-23, 54:13-22; 7/11/24 Grijalva Decl., Exh. 14 at COS0011347.) City 12 officials were aware of the complaints towards unhoused individuals. (Rich Dep. at 53:25-54:20, 13 243:3-8, Nelson Dep. at 62:3-13.) 14 On February 23, 2022, Ordinance No. 1136 (the “RV Ordinance”) was passed, and is 15 codified at Sebastopol Municipal Code (“SMC”) Chapter 10.76. (7/11/24 Grutzmacher Decl., 16 Exh. 17.) The RV Ordinance states that it is “intended to ensure there is adequate parking for 17 residents of the city and to regulate the parking of vehicles actively used as sleeping 18 accommodations.” (SMC § 10.76.020.) Thus, the RV Ordinance: (1) prohibits parking an RV on 19 public streets zoned as residential, (2) prohibits parking an RV on public streets zoned as 20 commercial, industrial, or community facility between 7:30 a.m. and 10:00 p.m., (3) prohibits 21 parking an RV on any park, square, or alley, and (4) prohibits parking an RV in a city-owned 22 parking lot unless the person is conducting city-related business during business hours at the 23 location for which the parking lot is designated. (SMC § 10.76.040.) 24 On October 25, 2022, Plaintiffs filed the instant action, asserting claims for: (1) cruel and 25 unusual punishment in violation of the Eighth Amendment, (2) excessive fines in violation of the 26 Eighth and Fourteenth Amendments, (3) state created danger in violation of the Fourteenth 27 Amendment, (4) equal protection in violation of the Fourteenth Amendment, (5) unreasonable 28 seizure of property in violation of the Fourth Amendment, (6) procedural due process under the 2 United States District Court Northern District of California 1 Fourteenth Amendment, (7) void for vagueness under the Fifth and Fourteenth Amendments, (8) 2 right of free movement under the Fourteenth Amendment, (9) right of intrastate travel under the 3 California Constitution, (10) excessive fees and fines under the California Constitution, (11) 4 unlawful seizure of property by towing under the California Constitution and California Vehicle 5 Code § 22650(b), (12) violation of the Americans with Disabilities Act (“ADA”), (13) violation of 6 the California Disabled Persons Act, and (14) discriminatory program under California 7 Government Code § 11135.1 (Compl. at 18-31.) During the pendency of this lawsuit, the parties 8 agreed to temporarily stay enforcement of the RV Ordinance. (See Dkt. No. 55 at 9-10.) 9 On July 11, 2024, Plaintiffs and Defendant both filed motions for summary judgment.2 On 10 August 1, 2024, Plaintiffs filed their opposition. (Pl.’s Opp’n, Dkt. No. 68.) On August 9, 2024, 11 pursuant to the parties’ stipulation, Defendant filed its corrected opposition. (Def.’s Opp’n, Dkt. 12 No. 72-1.) On August 15, 2024, Plaintiffs and Defendant filed their respective replies. (Def.’s 13 Reply, Dkt. No. 73; Pl.’s Reply, Dkt. No. 74.) II. 14 LEGAL STANDARD A party may move for summary judgment on a “claim or defense” or “part of... a claim or 15 16 defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 17 discovery, there is no genuine issue as to material facts and the moving party is entitled to 18 judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 19 20 21 22 23 24 25 26 27 28 1 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.) 2 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.”). 3 1 Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 2 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 3 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 4 A party seeking summary judgment bears the initial burden of informing the court of the 5 basis for its motion, and of identifying those portions of the pleadings and discovery responses 6 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where 7 the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 8 reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City 9 of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). United States District Court Northern District of California 10 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 11 party may discharge its burden of production by either (1) “produc[ing] evidence negating an 12 essential element of the nonmoving party's case” or (2) after suitable discovery “show[ing] that the 13 nonmoving party does not have enough evidence of an essential element of its claim or defense to 14 discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd., v. Fritz 15 Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25. 16 Once the moving party meets its initial burden, the opposing party must then set forth 17 specific facts showing that there is some genuine issue for trial in order to defeat the motion. See 18 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 19 simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S. 20 at 254. “Instead, the non-moving party must go beyond the pleadings and by its own evidence set 21 forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., Inc. v. Oskar, 22 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must 23 produce “specific evidence, through affidavits or admissible discovery material, to show that the 24 dispute exists.” Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or 25 speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of 26 material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics 27 Corp., 594 F.2d 730, 738 (9th Cir. 1979). 28 In deciding a motion for summary judgment, a court must view the evidence in the light 4 United States District Court Northern District of California 1 most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 2 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). 3 III. DISCUSSION 4 A. Standing 5 As an initial matter, Defendant asserts that Plaintiffs Yesue, Wetch, and AoK lack 6 standing.3 (Defs.’ Mot. for Summ. J. at 11; Defs.’ Opp’n at 14.) Article III standing requires the 7 demonstration of three elements: (1) the plaintiff suffered an “injury in fact” that is concrete and 8 particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 9 traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely 10 speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of 11 Wildlife, 504 U.S. 555, 560-61 (1992). First, Defendant argues that Plaintiffs Yesue and Wetch have not been injured by the RV 12 13 Ordinance, and that they have only a speculative fear of future injury. There is no dispute that 14 Plaintiffs Yesue and Wetch were never cited or towed pursuant to the RV Ordinance. Rather, the 15 parties dispute whether Plaintiffs Yesue and Wetch are at a sufficiently imminent and substantial 16 risk of future enforcement because neither currently own a vehicle that would be subject to the RV 17 Ordinance. (See Def.’s MSJ at 12; Pls.’ Opp’n at 6.) 18 The Court finds that Plaintiff Wetch has standing, but that Plaintiff Yesue lacks standing. 19 Plaintiff Wetch states that she is currently unhoused and has been “couch surfing” since February 20 2024. (Wetch Decl. ¶ 2.) Plaintiff Wetch, however, explains that she has access to a truck with a 21 camper, and that she would like to transfer it to her name except that she is afraid she will lose it 22 due to the RV Ordinance. (Wetch Decl. ¶ 10.) Plaintiff Wetch further explains that she would 23 want to be in Sebastopol because that is where her mother and friends are. (Wetch Decl. ¶11.) 24 Plaintiff Wetch also states that she would be afraid of parking in Sebastopol, and that she would 25 be unable to afford driving out of town and then back each night because of her limited income 26 and high gas prices. (Wetch Decl. ¶ 10.) In other words, Plaintiff Wetch’s injury due to the RV 27 28 3 Defendant does not assert that Plaintiff Corley lacks standing. 5 United States District Court Northern District of California 1 Ordinance is not speculative or hypothetical; while she does not currently have a RV, she would 2 have one if not for the RV Ordinance’s prohibitions on parking. Plaintiff Wetch further articulates 3 why she would need to park in Sebastopol and how the RV Ordinance prevents her from doing so. 4 Plaintiff Yesue, in turn, states that he is currently in at-will housing, and that his living 5 situation is “precarious.” (Yesue Decl. ¶ 2, Dkt. No. 68-7.) He is also working on finding a more 6 permanent housing solution with his case worker. (Yesue Decl. ¶ 3.) Plaintiff Yesue states that if 7 he loses his current housing and does not have permanent housing, he will need to live in a 8 vehicle. (Yesue Decl. ¶ 7.) Plaintiff Yesue asserts that he would use his sedan as his home, and 9 that he would “consider purchasing an RV.” (Yesue Decl. ¶ 4.) While Plaintiff Yesue also states 10 that he has access to an RV owned by another individual, he does not express any intent or interest 11 in using that RV. Thus, unlike Plaintiff Wetch, Plaintiff Yesue’s asserted injury is too attenuated 12 to support standing. Specifically, if Plaintiff Yesue loses his current housing, and if Plaintiff 13 Yesue does not have permanent housing at that time, then Plaintiff Yesue may purchase an RV, 14 which he would need to be able to park in Sebastopol. This, however, requires a series of 15 hypotheticals that may or may not happen, such that “[t]here is at most a ‘perhaps’ or ‘maybe’ 16 chance” that the RV Ordinance will be enforced against him, “and that is not enough to give [him] 17 standing to challenge its enforceability.” Bowen v. First Family Fin. Servs., 233 F.3d 1331, 1340 18 (11th Cir. 2000); Lee v. Am. Express Travel Related Servs., 348 Fed. Appx. 205, 207 (9th Cir. 19 2009) (“this argument requires a series of assumptions about what might happen if plaintiffs 20 actually did initiate arbitration, and such speculation is too conjectural and hypothetical to support 21 current Article III standing”). 22 Second, Defendant argues that Plaintiff AoK lacks standing because it was not harmed by 23 the RV Ordinance. The Supreme Court has found that an organization has standing where the 24 challenged practice has perceptibly impaired the organization’s ability to provide services; “[s]uch 25 concrete and demonstrable injury to the organization’s activities -- with the consequent drain on 26 the organization’s resources -- constitute far more than simply a setback to the organization’s 27 abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). 28 The parties dispute whether the RV Ordinance has frustrated Plaintiff AoK’s mission. 6 United States District Court Northern District of California 1 Plaintiff AoK is a non-profit organization whose volunteers serve individuals experiencing 2 homelessness, providing supplies such as meals, clothing, tents, and sleeping bags. (Compl. ¶ 16.) 3 Plaintiff AoK asserted in its interrogatory responses that because “vehicularly housed persons 4 have been forced by the Ordinance to move constantly, [Plaintiff AoK] has found it increasingly 5 difficult to locate people to get them meals, increasing the time spent looking for them and thereby 6 reducing the number of people who can be served.” (8/1/24 Grijalva Decl., Exh. 2 (“AoK 7 Interrogatory Resp.”) at 11.) Plaintiff AoK further states that the time “spent trying to locate and 8 serve people who have been dispersed as a result of the Ordinance could have been spent making 9 and serving additional meals, in furtherance of Plaintiff [AoK’s] core mission and purpose.” (Id.) 10 Defendant argues that contrary to this interrogatory response, Plaintiff AoK testified it had 11 no problem locating unhoused individuals. (Def.’s Mot. for Summ. J. at 13.) The testimony cited 12 by Defendant does not support this assertion; Plaintiff AoK’s representative stated that the amount 13 of time spent finding individuals varied because “[i]f they have moved locations, if they have 14 moved further away, the number of locations that we have to go to in order to find individuals.” 15 (7/11/24 Grutzmacher Decl., Exh. 16 (“Jackson Dep.”) at 14:25-15:2.) Further, when asked if it 16 “happen[ed] frequently that individuals move to different locations and you have trouble finding 17 them,” Plaintiff AoK’s representative answered in the affirmative. (Jackson Dep. at 15:3-6.) This 18 deposition testimony supports Plaintiff AoK’s assertion that when the individuals it served moved 19 around, Plaintiff AoK would have more trouble locating them. 20 Defendant also contends that searching for unhoused individuals is part of Plaintiff AoK’s 21 standard operations, and that Plaintiff AoK served the same number of meals even after the RV 22 Ordinance was enacted. (Def.’s Reply at 9.) Even if true, however, this does not mean that 23 Plaintiff AoK did not have to spend more time or resources to serve the same number of meals as 24 prior to the RV Ordinance. Indeed, Plaintiff AoK’s representative explained that they would 25 sometimes give people duplicate meals because they could not find as many individuals to provide 26 meals to. (Jackson Dep. at 28:21-29:16.) Defendant likewise suggests that Plaintiff AoK’s 27 representative testified that its ability to serve the unhoused was limited by financial and volunteer 28 constraints, not on its ability to find the unhoused, when Plaintiff AoK’s representative made clear 7 1 that its inability to find the unhoused did impact its distribution of meals. (Jackson Dep. at 28:21- 2 24 (“Part of [the drop in the number of meals from May to June of 2023] was the scaling back due 3 to not being able to find the individuals on the streets”).) The Court finds that Plaintiff AoK has 4 standing, as the RV Ordinance allegedly affected Plaintiff AoK’s ability to find unhoused 5 individuals to distribute meals to, draining its resources. 6 B. 7 The parties do not dispute that Plaintiffs bring a facial challenge to the RV Ordinance. The United States District Court Northern District of California 8 Facial Challenge parties do, however, dispute the standard for a facial challenge. 9 “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount 10 successfully, since the challenger must establish that no set of circumstances exists under which 11 the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Thus, “[t]he fact 12 that [a legislative act] might operate unconstitutionally under some conceivable set of 13 circumstances is insufficient to render it wholly invalid, since we have not recognized an 14 ‘overbreadth’ doctrine outside the limited context of the First Amendment.” Id. 15 Plaintiffs dispute that it must show that there is “no set of circumstances under which the 16 Act would be valid.” (Pl.’s Opp’n at 8.) Rather, Plaintiff argues that this standard was rejected in 17 City of Los Angeles v. Patel, 576 U.S. 409 (2015). (Id.) To the contrary, the Supreme Court 18 upheld this standard, explaining that “[u]nder the most exacting standard the Court has prescribed 19 for facial challenges, a plaintiff must establish that a law is unconstitutional in all of its 20 applications.’” Id. at 418. The Supreme Court clarified, however, that “when assessing whether a 21 statute meets this standard, the Court has considered only applications of the statute in which it 22 actually authorizes or prohibits conduct.” Id. In Patel, the Supreme Court considered a statute 23 authorizing warrantless searches. The city argued that there were circumstances where the statute 24 would not be unconstitutional, including where the police are responding to an emergency, where 25 there is consent to a search, and where the police have a warrant. Id. at 417-18. The Supreme 26 Court rejected this argument because “the proper focus of the constitutional inquiry is searches 27 that the law actually authorizes, not those for which it is irrelevant.” Id. at 418. Specifically, the 28 statute was not necessary where there was an emergency, consent, or a warrant. Thus, “the 8 1 constitutional ‘applications’ that [the city] claims prevent facial relief here are irrelevant to our 2 analysis because they do not involve actual applications of the statute.” Id. at 419. 3 In short, Defendant cannot rely on a set of circumstances where the RV Ordinance is 4 inapplicable (and therefore irrelevant). To succeed on a facial challenge, however, Plaintiffs must 5 still demonstrate that there is no set of circumstances in which the RV Ordinance applies that 6 would be valid. Am. Apparel & Footwear Ass’n, Inc. v. Baden, 107 F.4th 934, 938 (9th Cir. 2024) 7 (“A party succeeds in a facial challenge only by establishing that the law is unconstitutional in all 8 of its applications and fails where the statute has a plainly legitimate sweep.”). 9 United States District Court Northern District of California 10 i. Claims 2 and 10: Excessive Fines in Violation of Eighth Amendment and California Constitution 11 Defendant moves for summary judgment as to Plaintiff’s excessive fines claims. The 12 Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in 13 kind, as punishment for some offense.” Timbs v. Indiana, 586 U.S. 146, 151 (2019) (internal 14 quotation omitted). “[A] fine is unconstitutionally excessive under the Eighth Amendment if its 15 amount ‘is grossly disproportionate to the gravity of the defendant’s offense.’” Pimentel v. City of 16 L.A., 974 F.3d 917, 921 (9th Cir. 2020) (quoting United States v. Bajakajian, 524 U.S. 321, 336- 17 37 (1998)). Courts consider four factors to determine whether a fine is grossly disproportionate to 18 the offense: “(1) the nature and extent of the underlying offense; (2) whether the underlying 19 offense related to other illegal activities; (3) whether other penalties may be imposed for the 20 offense; and (4) the extent of the harm caused by the offense.” Id. Here, the RV Ordinance 21 provides: “all violations of this chapter shall be an infraction and such persons shall be subject to 22 citation, towing or both.” (SMC § 10.76.080.) The fine for a violation of the RV Ordinance is 23 $60.00, and fines associated with the RV Ordinance “do not increase upon subsequent additional 24 citations or offenses.” (7/11/24 Grutzmacher Decl., Exh. 20 at 30.) 25 First, “Courts typically look to the violator’s culpability to assess this factor.” Pimentel, 26 974 F.3d at 922. “[I]f culpability is high or behavior reckless, the nature and extent of the 27 underlying violation is more significant. Conversely, if culpability is low, the nature and extent of 28 the violation is minimal.” Id. at 923. In Pimentel, the Ninth Circuit found that the plaintiffs were 9 1 culpable because they violated the Municipal Code by failing to pay for over-time use of a 2 metered space, but that the culpability was low because the underlying parking violation was 3 minor. Thus, the violations were “minimal but not de minimis.” Id. Here, as in Pimentel, an 4 individual would be culpable if they violated the RV Ordinance by parking where and/or when not 5 permitted. That said, there is no dispute that culpability would be minimal. (See Def.’s Mot. for 6 Summ. J. at 15; Pls.’ Opp’n at 13; see also Stewart v. City of Carlsbad, No. 23cv266-LL-MSB, 7 2024 U.S. Dist. LEXIS 54303, at *6 (S.D. Cal. Mar. 26, 2024) (finding that a violation of a 8 municipal code prohibiting parking of oversized vehicles was “minimal but not de minimis”). United States District Court Northern District of California 9 Second, courts consider “whether the underlying offense relates to other illegal activities.” 10 Pimentel, 974 F.3d at 923. Defendant contends that parking violations under the RV Ordinance 11 could “be associated with other legal violations including, but not limited to violations of the 72- 12 hour Ordinance, vehicles with expired registration, and/or vehicles in inoperative or dangerous 13 conditions.” (Def.’s Mot. for Summ. J. at 15.) As Plaintiffs correctly point out, however, 14 Defendant cites no evidence in support. In any case, courts have found that “[t]his factor is not as 15 helpful to our inquiry as it might be in criminal contexts.” Pimentel, 974 F.3d at 923. 16 Third, courts consider “whether other penalties may be imposed for the offense.” 17 Pimentel, 974 F.3d at 923. The parties agree there is nothing in the record to suggest that other 18 penalties may be imposed for the offense. (Def.’s Mot. for Summ. J. at 15; Pls.’ Opp’n at 14.) 19 Finally, courts consider “the extent of the harm caused by the violation.” Pimentel, 974 20 F.3d at 923. This factor “is not limited to monetary harms alone. Courts may also consider how 21 the violation erodes the government’s purposes for proscribing the conduct.” Id. Defendant 22 contends that it “has an interest in preventing the human health and safety impacts of long-term 23 RV encampments on the city street and in ensuring adequate parking and access to public facilities 24 and local businesses.” (Def.’s Mot. for Summ. J. at 15.) Plaintiffs, in turn, argue that “the act of 25 parking a single disfavored vehicle during daytime in a space that is available to all other vehicles 26 [] does not remotely give rise to the types of hypothetical harms conjured up by the City.” (Pl.’s 27 Opp’n at 14.) 28 The Court finds there is evidence in the record that the RV Ordinance was enacted in 10 United States District Court Northern District of California 1 response to parking concerns. Mayor Diana Rich testified that Defendant “received a lot of 2 reports of concerns about availability of parking for other purposes, and that would have been 3 involving the Morris Street situation where there were lived-in vehicles who were occupying most 4 of these sides of the street and then into a couple of side streets.” (Rich Dep. at 36:19-24.) Mayor 5 Rich also noted that “[i]t was clear for everyone on the city council and anyone who happened to 6 travel down Morris that there was a need to increase access to the shared spaces in that area.” 7 (Rich Dep. at 37:20-22.) Likewise, the ”police routinely were on Morris Street and could observe 8 the lack of parking.” (McLaughlin Dep. at 56:23-24.) Plaintiffs argue that these are hearsay 9 complaints; even if not considering the complaints for their truth, however, the Court can consider 10 the complaints for their effect on the listener, including why the City Council believed the RV 11 Ordinance was needed. (Pl.’s Opp’n at 3.) In any case, Defendant also points to the personal 12 observations of its staff and City Council members. In the alternative, Plaintiffs contend that 13 Defendant did not conduct a formal study analyzing parking availability, but cites no legal 14 authority that such a study would be required. (Id.) Finally, to the extent Plaintiffs argue that 15 there was evidence that there was no parking shortage, Plaintiffs rely on a September 2018 report. 16 (See Pl.’s Mot. for Summ. J. at 8.) It is unclear how a September 2018 report contradicts reports 17 of inadequate parking in 2021-2022. 18 The Court also finds there is evidence in the record that the RV Ordinance was enacted in 19 response to health and safety concerns. City officials reported received complaints about 20 “blockage on the sidewalks, human waste on the sidewalks and in the street, trash accumulations, 21 blockage of sidewalks, confrontations that sometimes occurred between citizens and occupants of 22 the recreational vehicles,” as well as “overflowing garbage[, ] the use of . . . generators, which 23 created serious risk[, and] the piles of personal possessions that are around the vehicles.” 24 (McLaughlin Dep. at 23:4-10; Rich Dep. at 154:1-5.) Former City Manager/City Attorney 25 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 7 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 11 adjoins property parcels zoned in different ways; the zoning would apply to that side of the street. 12 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 15 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. 20 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 22 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 24 ordinance was vague where it adopted detailed zoning regulations, and the defendant could have 25 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 27 designations where it is unclear if the zoning is residential, commercial, industrial, or community 28 facility. (Pls.’ Mot. for Summ. J. at 17.) Specifically, the zoning map zones certain areas as 23 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 4 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 8 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 10 determine from their surroundings if they are in a residential neighborhood or a downtown 11 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” 14 15 The RV Ordinance makes it “unlawful for a person to park or leave standing any 16 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 25 F.4th at 1330. 26 d. Meaning of “City-Related Business” 27 Finally, the RV Ordinance makes it “unlawful for a person to park or leave standing any 28 recreational vehicle in any City-owned parking lot at any time unless that person is conducting 24 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.) 6 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 11 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 16 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 18 within the city limits. (Kilgore Dep. at 55:3-56:4.) Finally, Parking Enforcement officer Michelle 19 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.) 21 Defendant, in turn, asserts that as long as the city-owned lot is not tied to the Police, Fire, Public 22 Works, and City Hall buildings, an RV can park in a city-owned lot to shop, visit a restaurant, 23 enjoy public facilities, or conduct any other business within the city. (Def.’s Opp’n at 28.) 24 The Court finds that the plain language of “City-related business” is clear -- it concerns 25 business with the city government. The second sentence supports this definition; it states that 26 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 28 consequence; it does not make the language vague, even if it does not comport with Defendant’s 25 1 own intent. Indeed, a person of ordinary intelligence would likely not be privy to the city 2 council’s intent when they passed the RV Ordinance, and thus would not be confused by 3 Defendant’s differing interpretation of this provision. Rather, a person of ordinary intelligence 4 would read the RV Ordinance as it is written and understand it to mean that RVs can park in city- 5 owned lots only if conducting business with the city government. If Defendant intended the 6 ordinance to have a more expansive meaning, it should so amend. 7 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 10 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 12 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 15 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 20 upon each complainant’s sensitivity.” Id. at 613-14. 21 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 23 35:22-36:1.) The Court observes that this testimony was specific to the limited exception for 24 loading and unloading RVs in residential areas, not to the entire RV Ordinance. Former Police 25 Chief Kilgore also commented that the police were less likely to go after a VW van that had been 26 modified for habitation but was in downtown for a meal, as opposed to a vehicle that was staying 27 in the same spot for long periods of time as that would suggest they were actually living in the 28 vehicle. (7/11/24 Grijalva Decl., Exh. 24.) The fact that the police may selectively enforce the 26 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 5 interpretation of the RV Ordinance, but on their discretion. In short, the standard of conduct is 6 clear; how and when officers enforce the RV Ordinance is not based on officers applying their 7 own sensitivities to determine whether the RV Ordinance is actually violated. 8 Accordingly, the Court concludes that the RV Ordinance is not void for vagueness. The 9 Court GRANTS Defendant’s motion for summary judgment, and DENIES Plaintiffs’ motion for 10 summary judgment. 11 vii. 12 Claims 8 and 9: Right to Travel Defendant seeks summary judgment as to Plaintiffs’ right to travel claim. “The right to 13 travel, or right of migration, now is seen as an aspect of personal liberty which, when united with 14 the right to travel, requires ‘that all citizens be free to travel throughout the length and breadth of 15 our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this 16 movement.’” Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 1098 (quoting Shapiro v. Thompson, 17 394 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, 20 903 (1986). That said, “[t]he right to travel does not . . . endow citizens with a right to live or stay 21 where one will.” Tobe, 9 Cal. 4th at 1103. 22 The Court finds that the RV Ordinance does not impinge on the right to travel. In Potter v. 23 City of Lacey, the Ninth Circuit found that an ordinance which prohibited RV owners from 24 parking their RVs on the city’s public spaces and roadways for longer than four hours within any 25 twenty-four-hour period “d[id] not violate any right to free movement.” 46 F.4th 787, 798 (9th 26 Cir. 2022). Specifically, “[t]he RV Parking Ordinance does not prevent RV owners from traveling 27 locally through public spaces and roadways.” Id. at 799. Rather, RV owners could still “travel 28 along the same public spaces and roadways on which it forbids them from parking for more than 27 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 11 the vehicle of their choice or for any purpose that they desire. There is also no suggestion that the 12 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’ 16 17 right to travel claims. 18 viii. 19 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 20 21 bring claims under various disability laws, including Title II of the ADA, asserting that RV 22 Ordinance excludes Plaintiffs from a city service, program, or activity on the basis of their 23 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 25 participate in or receive the benefit of a public entity’s services, programs, or activities, (3) they 26 were excluded from participation in or denied the benefits of the public entity’s services, 27 28 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.) 28 9 1 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 3 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. 5 6 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 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30

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