California Court of Appeals, Third District, Sacramento
[As modified Mar. 6, 2015.]
APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201000070097CUCRGDS Shelleyanne W.L. Change, Judge.
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Law Office of Mark E. Merin and Mark E. Merin for Plaintiffs and Appellants.
James Sanchez, City Attorney, and Chance L. Trimm, Deputy City Attorney for Defendants and Respondents.
Plaintiffs challenge a City of Sacramento (City) ordinance. Among other things, they assert the ordinance is unconstitutional both on its face and as applied to them. We will reverse a portion of the trial court’s order sustaining the City’s demurrer. Although plaintiffs fail to meet their appellate burden on most of their claims, they state a cause of action for declaratory relief asserting an as-applied challenge based on equal protection.
A private property owner agreed that plaintiffs -- 22 homeless individuals and two people providing services to the homeless -- could camp on his lot in a light industrial area of the City of Sacramento. City police informed plaintiffs that their camping violated a City ordinance prohibiting extended camping on public or private property without a City permit. When plaintiffs continued to camp on the lot, the police gave them citations on two occasions and removed their camping gear. Plaintiffs brought in other camping gear each time and continued their camping activities. The police ultimately arrested them.
Plaintiffs sued the City, claiming the camping ordinance is unconstitutional and the City enforces the ordinance in a discriminatory manner. The trial court sustained the City’s demurrer with leave to amend. Rather than amend the complaint, the parties agreed judgment could be entered against plaintiffs and plaintiffs could appeal.
On appeal, plaintiffs raise many concerns about the plight of homeless individuals in the City. Among other things, they argue homeless individuals are forced to live outside because they lack employment opportunities, mental health treatment, and adequate shelter. But in considering these arguments, we must be mindful of our limited role in this dispute. Our focus must be to determine whether plaintiffs have met their legal burden on
appeal, i.e., whether they have stated a cause of action in their first amended complaint. It is not our role to determine appropriate City policy. Thus, as we consider the City’s camping ordinance, we may not opine on the wisdom of the policies embodied in such legislation. (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53 [51 Cal.Rptr.2d 837, 913 P.2d 1046].) "[A]bsent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function.” (Ibid; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1092, fn. 12 [40 Cal.Rptr.2d 402, 892 P.2d 1145] (Tobe) [arguments regarding the intractable problem of homelessness and the impact of the challenged ordinance on homeless persons should be addressed to legislative bodies, not the courts]; People v. Kellogg (2004) 119 Cal.App.4th 593, 605 [14 Cal.Rptr.3d 507].)
Accordingly, in part I of this opinion, we will address plaintiffs’ contentions pertaining to their first cause of action for declaratory judgment. Plaintiffs contend the trial court erred in sustaining the demurrer to their first cause of action because (A) a demurrer to a declaratory relief cause of action must be overruled whenever an actual controversy is alleged, (B) plaintiffs adequately stated a facial void-for-vagueness challenge to the ordinance, and (C) plaintiffs adequately stated an as-applied constitutional challenge to the ordinance based on (1) the Eighth Amendment prohibition against cruel and unusual punishment, (2) the right to travel, (3) equal protection and class-based discrimination, (4) arbitrary and discriminatory enforcement of laws, (5) substantive due process, and (6) protections regarding vague laws.
In part II of this opinion, we will analyze plaintiffs’ contention pertaining to their second cause of action for an injunction. Plaintiffs contend the trial court erred in sustaining the demurrer to their second cause of action because their failure to cite “California Civil Code section 526(a)” should not foreclose injunctive relief.
Finally, in part III, we discuss plaintiffs’ contention pertaining to their third cause of action for violation of Civil Code section 52.1 [interference or attempt to interfere, by threats, intimidation, or coercion, with exercise of rights]. Plaintiffs contend the trial court erred in sustaining the demurrer to their third cause of action because plaintiffs alleged facts constituting threats and coercion.
Regarding the first cause of action for declaratory judgment, we conclude (A) a general demurrer is proper when the plaintiff does not allege facts sufficient to state a claim; (B) plaintiffs have not stated a facial vagueness challenge because their camping clearly violated the ordinance; and (C) plaintiffs have not stated an as-applied challenge based on cruel and unusual punishment (the ordinance punishes the act of camping and does not punish
plaintiffs’ homeless status) or the right to travel (the ordinance has only an indirect impact on the right to travel, and the first amended complaint does not allege punishment for exercising the right to travel). But plaintiffs do state an as-applied challenge based on equal protection.
Plaintiffs forfeited their as-applied claims asserting arbitrary and discriminatory enforcement and a violation of substantive due process, because they failed to provide any argument or citation to supporting authority in their opening brief regarding those contentions. And they forfeited their as-applied claim regarding vagueness by failing to explain how the ordinance is vague as applied to them.
Regarding the second cause of action for an injunction, the trial court did not err in sustaining the demurrer because an injunction is not a cause of action. As for the third cause of action for violation of Civil Code section 52.1, the trial court did not err because plaintiffs do not allege City police threatened violence and they do not allege threats, intimidation, or coercion independent of the coercion inherent in their detention and arrest.
We will reverse the judgment with respect to the first cause of action for declaratory judgment asserting an as-applied challenge based on equal protection. We will affirm the judgment in all other respects.
Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the well-pleaded allegations in plaintiffs’ first amended complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) We draw the following facts from that complaint.
There are at least 2, 600 homeless persons in the City at any given time. Of that number, 1, 200 to 1, 300 homeless people do not have shelter each night.
Plaintiffs are part of a group of homeless men and women who stayed the night at different public and private properties in the City in 2009. City police officers informed plaintiffs that staying overnight at those properties violated the City’s camping ordinance and could subject plaintiffs to arrest and loss of their personal property.
Sacramento City Code section 12.52.030 makes it “unlawful and a public nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia in... [¶] . . . [a]ny public property; or [¶], ... [a]ny private
property.” A violation of the ordinance is a misdemeanor. (Sac. City Code, ch. 12.52, §§ 12.52.030, 12.52.040.)
The ordinance contains an exception for overnight camping on private residential property by friends or family of the property owner, so long as the owner consents and the overnight camping is limited to not more than one consecutive night. (Sac. City Code, § 12.52.030.)
In addition, the city manager may issue a temporary permit to allow camping on public or private property in connection with a special event. (Sac. City Code, § 12.52.030.) A special event includes programs operated by the City, youth or school events, marathons or other sporting events, and scouting activities. (Id., § 12.52.050.) The city manager may consider any facts bearing on the sanitary, health, safety, and welfare conditions of the area where the proposed temporary camp or camp facility is to be located in issuing a permit. (Ibid.) The city manager may impose conditions on the establishment, maintenance and operation of the camp or camp facility, including conditions relating to security, sanitation facilities, the number of occupants, posting of bonds or deposits, insurance, quiet hours, duration of the permit, and permitted activities on the premises. (Sac. City Code, § 12.52.070.) A permit may be revoked if the city manager determines the maintenance or continuing operation of the camp or camp facilities is adverse to the public health, safety, and welfare. (Ibid.)
The camping ordinance states it is intended “to maintain streets, parks and other public and private areas within the city in a clean, sanitary and accessible condition and to adequately protect the health, safety and public welfare of the community, while recognizing that, subject to reasonable conditions, camping and camp facilities associated with special events can be beneficial to the cultural and educational climate in the city.” (Sac. City Code, § 12.52.010.) The Sacramento City Council recognized that “[t]he streets and public areas within the city should be readily accessible and available to residents and the public at large. The use of these areas for camping purposes or storage of personal property interferes with the rights of others to use the areas for which they were intended. Such activity can constitute a public health and safety hazard which adversely impacts neighborhoods and commercial areas. Camping on private property without the consent of the owner, proper sanitary measures and for other than a minimal duration adversely affects private property rights as well as public health, safety, and welfare of the city.” (Ibid.)
The ordinance is not intended “to interfere with otherwise lawful and ordinary uses of public or private property.” (Sac. City Code, § 12.52.010.) It does not prohibit or make unlawful “activities of an owner of private property
or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of private property for residential or other purposes” and "activities are expressly authorized by the Planning and Development Code or other laws, ordinances and regulations.” (Id., § 12.52.030.)
The complaint alleges the City enacted the camping ordinance to discriminate against homeless persons. It further alleges the City has a policy and practice of dissuading homeless persons from entering the City or, if within the City, to drive them out of the City by selectively enforcing the ordinance against the homeless, even when they are living on private property with the property owner’s consent.
Pursuant to a lease agreement, the owner of a fenced lot in a light industrial area of the City agreed in 2009 to allow plaintiffs to live and store personal property at the lot until they qualified for shelter. About 30 people set up tents and stored their property at the lot with the owner’s written permission. Portable toilets were also moved onto the property.
On September 2, 2009, City police officers detained all persons at the lot, seized and removed plaintiffs’ personal property including tents, sleeping bags and personal items, and cited the detainees for violating the camping ordinance. Alleging they had nowhere else to go, plaintiffs obtained more tents and sleeping bags and remained at the lot.
On September 4, 2009, police officers again detained and cited plaintiffs for violating the camping ordinance. Police seized and removed the additional tents, sleeping bags and personal items at the lot. Once again alleging they had nowhere else to go, plaintiffs obtained more tents, sleeping bags and personal items, and remained at the lot.
On September 12, 2009, police officers arrested plaintiffs for violating the camping ordinance and seized the tents, sleeping bags, tarps and personal items found at the lot. The complaint alleges plaintiffs have had to search for places to sleep on other public or private properties because no shelter was available to them. Plaintiffs fear arrest and the confiscation of their property. Some homeless persons, including one of the plaintiffs, have died while sleeping outdoors.
The first cause of action of plaintiffs’ first amended complaint seeks a declaration that the camping ordinance is unconstitutional on its face and also as applied to homeless persons residing on private property in the City with the consent of the owner when no public or private shelter is available to them. Plaintiffs seek a declaration that the ordinance (1) targets ...