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Luis Sanchez, Angelita Soto, Gloria Williams, Theresa Calmer v. City of Fresno

May 14, 2013

LUIS SANCHEZ, ANGELITA SOTO, GLORIA WILLIAMS, THERESA CALMER, JUAN FERNANDEZ, MELISSA OHLER, AND JOSHUA DEEN,
PLAINTIFFS,
v.
CITY OF FRESNO, ASHLEY SWEARENGIN, MARK SCOTT, BRUCE RUDD, GREG BARFIELD, JERRY DYER, PHILLIP WEATERHS, MALCOLM DOUGHERTY, AND DOES 1-100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

MEMORANDUM DECISION AND ORDER RE MOTION TO DISMISS SECOND AMENDED COMPLAINT (DOC. 69)

I.INTRODUCTION

Plaintiffs, current or former homeless residents of the City of Fresno, allege that their personal property, including property necessary for survival, essential to health, and of personal and emotional value, was seized and immediately destroyed as part of the City of Fresno's efforts to clean up homeless encampments in Downtown Fresno in late 2011 and early 2012. This case is one of more than thirty similar cases filed by homeless individuals arising out of these cleanup activities, all of which have been consolidated for pretrial purposes, with the above-captioned matter serving as the lead case. See Doc. 27.

Plaintiff Luis Sanchez's First Amended Complaint ("FAC"), in which he was the only Plaintiff, was the subject of previous motions to dismiss filed by the City of Fresno (the "City") and individual City Defendants Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weathers, and Malcolm Dougherty (collectively, "Original City Defendants"). Docs. 38-1 & 45. That motion was granted in part and denied in part. Sanchez v. City of Fresno, 2012 WL 6719556, --- F. Supp. 2d --- (E.D. Cal. Dec. 26, 2012).

Mr. Sanchez, joined as Plaintiffs by Angelita Soto, Gloria Williams, Theresa Calmer, Juan Fernandez, Melissa Ohler, and Joshua Deen, filed the currently operative Second Amended Complaint ("SAC") on January 28, 2013. Doc. 47. Among other things, the SAC adds thirty-seven (37) additional Defendants, including eighteen (18) Fresno Police Department Officers ("Police Officer Defendants") and nineteen (19) other "Municipal Employee Defendants," (collectively, Additional City Defendants). SAC ¶¶ 20-21. The SAC contains the following causes of action:

1. Denial of Constitutional Right Against Unreasonable Search and Seizure -- Fourth Amendment and 42 U.S.C. § 1983;

2. Denial of Constitutional Right to Life, Liberty and Due Process of Law -- Fourteenth Amendment and 42 U.S.C. § 1983;

3. [Skipped in SAC]

4. Denial of Constitutional Right to Equal Protection of the Laws -- Fourteenth Amendment and 42 U.S.C. § 1983;

5. Denial of Constitutional Right Against Unreasonable Search and Seizure -- California Constitution, Article 1, § 13;

6. Denial of Constitutional Right to Life, Liberty and Due Process of Law -- California Constitution, Article 1, § 7(A);

7. Denial of Constitutional Right to Equal Protection of the Laws -- California Constitution, Article 1, § 7(A);

8. California Civil Code § 52.1;

9. Intentional Infliction of Emotional Distress;

10. Common Law Conversion; and

11. Breach of Contract.

On April 2, 2013, Additional City Defendants*fn1 moved to dismiss the claims against them. Doc. 69-1.*fn2 Plaintiffs opposed on May 2, 2013. Doc. 77. Additional City Defendants replied on May 8, 2013. Doc. 80. The hearing, originally set for May 16, 2013, was vacated and the matter taken under submission on the papers pursuant to Local Rule 230(g). Doc. 78.

II.BACKGROUND*fn3

The Memorandum Decision and Order addressing the first round of motions to dismiss provides extensive background on previous, related litigation. Sanchez, 2012 WL 6719556, *1-2, --- F. Supp. 2d ---. It is not necessary to repeat that information here.

The SAC alleges that beginning in or about September 2011, Defendants set in motion a plan to eradicate a number of small shelters used by homeless individuals in an area in the City of Fresno known generally as "south of Ventura Street." See SAC ¶ 27. It is alleged that the Original City Defendants knew these shelters were being used by Plaintiffs as "homes to provide not only protection from the elements but also contained personal property of great personal value and significance to both their physical and emotional health, including personal property such as medications, photographs, and important personal effects from family and loved ones...." See, e.g., SAC ¶ 14. Plaintiffs further allege that the Original City Defendants knew Plaintiffs and others in Plaintiffs' position had no alternative shelter or means of protection from the elements nor any other means of keeping their personal property safe, and that no safe shelter was available to Plaintiffs or to large numbers of other homeless residents, including many Plaintiffs whose cases have been consolidated with this one. Id.

Nonetheless, Defendants planned, directed, and implemented the demolition of these shelters and their content, even though Defendants were advised that the process involved the destruction of valuable personal property and the demolition of entire tents and shelters. See SAC ¶ 16. It is alleged that Defendants engaged in this conduct "[d]espite the extreme weather conditions" prevailing at the time, and "know or should reasonably know that their conduct threatened plaintiff's continued survival." SAC ¶ 32. According to the SAC, Defendants failed to provide adequate notice of their intent to seize and destroy Plaintiff's property, nor any means of retrieving seized property. SAC ¶ 1.

The SAC contains specific allegations regarding the experiences of each of the named Plaintiffs.

Theresa Calmer and Julian Fernandez.

On or about October 27, 2011, Defendants "seized and immediately destroyed essential belongings of plaintiffs Teresa Calmer and Julian Fernandez, including their clothing, their furniture, their personal papers, photographs, books, electronics, and other property and their dwelling, including the materials of which the dwelling had been constructed...." SAC ¶ 29. Defendants also destroyed two bicycles. Id. Plaintiffs Teresa Calmer and Julian Fernandez "had not abandoned the property destroyed by defendants but at all times sought to maintain possession of their property." Id.

Both Ms. Calmer and Mr. Fernandez were physically present as the "Municipal Defendants and the Fresno Police Defendants . began the demolition of the property and possessions of the homeless persons in the area in which they lived." SAC ¶ 30. Calmer and Fernandez sought additional time to remove the structure they used as a shelter and requested storage of their property, rather than destruction. Id. Municipal Employee Defendants told Plaintiffs that their property would not be destroyed if they picked up the trash on the street and deposited it in a location that would be convenient for the Defendants' equipment to access. Id. Plaintiffs cleaned up the trash and Mr. Fernandez left the area to search for a new site to relocate their home. Id. Despite their prior assurances, in Ms. Calmer's presence, Defendants destroyed their property. Id. Ms. Calmer attempted to enter her wood structure to take any belongings she could claim before her property was destroyed, but Defendants' equipment caused the wood planks to collapse and she had to exit the structure quickly in order to avoid physical injury. Id. She was not able to save her belongings or those of Plaintiff Julian Fernandez. Id. Defendants "failed and refused to provide any return of their property or for an adequate means for Plaintiffs to recover their property." SAC ¶ 31.

Following the demolition of their shelter and destruction of their property, Julian Fernandez has been forced to move to different locations in an attempt to protect himself and survive. SAC ¶ 32. Defendants forced Plaintiff Julian Fernandez to move and take down his limited shelter, and continue to threaten him with arrest and/or destruction of his property with no or inadequate notice. Id. During this period, "temperatures have fallen below 36 degrees Fahrenheit on several occasions and [Mr.]

Fernandez has been exposed to cold and rainy weather with little or no shelter." Id.

At some point after October 2011, Teresa Calmer obtained housing through a government program, but Plaintiff Julian Fernandez was not allowed to stay with her. SAC ¶ 32. The allegations in the SAC suggest that Ms. Calmer chose to remain, at least part of the time, with Mr. Fernandez, where she too has been exposed to the elements. See SAC ¶¶ 32-33. Ms. Calmer is HIV-positive and has ...


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