Utzman vs. County of Orange

• In the second row, second column in the table under Section 9 of the class notice, the year stated should be 2026 not 2023. • Participating class members can object to the amount allocated to the PAGA settlement. The first column at the top of page 6 of the class notice, should be amended to state: “Participating Class Members Can Object to the Class Settlement,” with the phrase “but not the PAGA Settlement” deleted.

Plaintiff is ordered to give notice of this ruling to the LWDA and Defendant.

7 30- Plaintiffs Francisco Perez, Oscar Zaragoza and Niyom Chetcheuth’s 2024- (collectively, “Plaintiffs”) Motion for Preliminary Approval of Class Action 013968 and PAGA Settlement is GRANTED. 61 Perez vs. A Final Approval Hearing is set for December 21, 2026 at 1:30 p.m. All papers Service in support of the Final Approval Hearing, including detailed hourly Champi breakdowns of plaintiff’s attorneys to support a lodestar cross-check, detailed ons, LLC plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiffs’ declarations to support the enhancement request, must be filed at least 16 calendar days before the Final Approval Hearing date to provide enough time for court review, and must be served in compliance with CCP notice of motion requirements.

Plaintiff shall provide notice of this ruling to the LWDA and Defendant.

8 30- Off Calendar 2022- 012405 91 Boucher vs. Unstopp able Automot ive Group, LLC 1 30- MSJ BY DEFENDANT COUNTY OF ORANGE 1 2020- 011740 Defendant County of Orange’s (“County”) Motion for Summary Judgment is 05 DENIED. The County’s alternative Motion for Summary Adjudication is Utzman vs. GRANTED as to Issue No. 1 as to the First, Second and Eighth Causes of County Action based on Plaintiffs’ failure to satisfy the pre-filing requirements under of the Government Tort Claims Act for these claims that seek only money Orange damages for past misconduct. The Court DENIES summary adjudication as to Issue Nos. 2 and 3.

The court GRANTS the County’s and Plaintiffs’ requests for judicial notice of the orders, transcripts and filings in Orange County Catholic Worker et al. v. County of Orange, et al. (C.D. Cal.) Case No. 18-cv-00155-DOC (hereinafter “Catholic Worker case”). (Cal. Evid. Code § 452(d).)

The court OVERRULES Plaintiffs’ objections to the Declarations of Golnaz Zandieh and Karen Betances as the statements are admissible, and declines to rule on Plaintiffs’ objections to the County’s Separate Statement (which is not evidence).

The County objects to all the evidence Plaintiffs cited in its Response to the County’s Separate Statement and in their Opposition that were not actually attached to their opposition papers, but were filed as part of other filings in this action. Generally, “[m]aterial not presented in opposition to the summary judgment motion itself is not properly considered by the court in ruling on the motion.” (Roman v. BRE Props., Inc. (2015) 237 Cal. App. 4th 1040, 1054.) A court is not required consider evidence when “evidence is not referenced, is hidden in voluminous papers, and is not called to the attention of the court at all[.]” (San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308, 316.) However, the court may consider evidence that “was clearly called to the attention of court and counsel.” (Id.) Here, the County has not demonstrated that it was unable to locate or respond to Plaintiffs’ cited evidence. Indeed, the court was easily able to locate the cited evidence. Thus, the court OVERRULES the County’s objections to the evidence referenced, but not included with Plaintiffs’ opposition papers.

The court SUSTAINS the County’s objections to Plaintiffs’ Exhibit No. 34, which is the Mercy House guest expectation form, as Plaintiffs fail to authenticate that document. “Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissible form.” (Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 855.) “This means the evidence must be (1) properly identified and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or admissible under some exception to the hearsay rule, and (4) a complete record, not selected portions of the document.” (Id.) “Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other ‘evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.’” (Id.)

The court declines to rule on Plaintiffs’ remaining objections to Plaintiffs’ evidence as the evidence is not relevant to the court’s ruling in this action.

As a threshold matter, the court disregards any arguments seeking summary adjudication of issues in the County’s motion that are not included in the County’s Separate Statement and are not supported by any facts in the Separate Statement. (Cal. R. Ct. 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”); Cal.

R. Ct. 3.1350(d) [“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify . . . [e]ach cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion . . .”].) “All material facts must be set forth in the separate statement.” (Massingill v. Dep't of Food & Agric. (2002) 102 Cal. App. 4th 498, 511.) “‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’” (Id. [emphasis in original].)

The County’s Separate Statement only includes three issues for summary adjudication (ROA 935):

Issue No. 1: Plaintiffs First, Second, Fifth, Sixth, Eighth, Ninth, Twelfth, and Thirteenth Causes of Action against the County of Orange fail as a matter of law because (1) Plaintiffs did not comply with the Government Claims Act prior to filing their lawsuit and therefore cannot recover monetary damages against Defendant County for their alleged past harm; and (2) Plaintiffs who resided at a County shelter and are parties to the FEHA causes of action (Deborah Kraft, Jordynne Lancaster, and Cyndi Utzman) failed to exhaust administrative remedies through the Department of Fair Employment and Housing prior to filing their lawsuit.

Issue No. 2: Plaintiffs’ Fifth, Ninth, Tenth, Eleventh, and Fourteenth Causes of Action for equitable relief fail as a matter of law because doctrine of collateral estoppel bars Plaintiffs from relitigating shelter policy and condition issues that were resolved pursuant to a court- approved settlement agreement in the federal lawsuit Orange County Catholic Worker v. County of Orange, et al., Case No. 8:18-cv-00155- DOC.

Issue No. 3: Plaintiffs’ Fifth, Ninth, Tenth, Eleventh, and Fourteenth Causes of Action for equitable relief fail as a matter of law under the substantive law governing injunctive and declaratory relief.

Consequently, the court declines to reach issues regarding discriminatory animus, governmental immunity, and standing as they were not included in the Separate Statement. Even if the court were to consider these issues, the court would find that (1) there are triable issues of fact as to discriminatory animus,

(2) governmental immunity does not apply to the alleged conduct which concerns street-level decisions rather than discretionary decisions, and (3) there are triable issues of fact as to whether Plaintiff Wendy Powitzky has standing to bring her claims. Thus, the court would also deny summary adjudication based on these issues.

The court also declines to consider arguments raised by the County for the first time in its reply brief, to which Plaintiffs have had no opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”].) Evidence may be considered if they do not “address[] the substantive issues in the first instance but only fill[] gaps in the evidence created by the [other party’s] opposition.” (Id. at 1438.)

However, it would be unfair for a defendant not to “bring forth any evidence at all” until the reply brief when the opposing party “would have no opportunity to respond.” (Id.) For the first time in reply, the County argued: • Plaintiffs cannot obtain equitable relief for the FEHA claims as neither the operative complaint nor Plaintiffs’ evidence identifies any ongoing “discriminatory” conduct by the County, any current County shelter where such conduct allegedly continues, or any Plaintiff presently subjected to—or reasonably expected to be subjected to—such conduct. • The 12th and 13th claims fail because the operative complaint contains no allegations that any purported habitability issues are ongoing at other County-funded shelters, so equitable relief is unavailable. • The County is not a lessor and thus cannot be liable for uninhabitable conditions. • The Fourteenth Cause of Action is improperly asserted against the County as an entity, when it must be brought against an officer or agent of the County

As Plaintiffs had no opportunity to respond to these arguments, the court declines to consider them at this time. However, it should be noted that, to the extent these are legal issues already decided by the court in other motions, the court may take them up in a later motion for judgment on the pleadings.

I. Issue No. 1: Plaintiffs First, Second, Fifth, Sixth, Eighth, Ninth, Twelfth, and Thirteenth Causes of Action against the County of Orange fail as a matter of law because (1) Plaintiffs did not comply with the Government Claims Act prior to filing their lawsuit and therefore cannot recover monetary damages against Defendant County for their alleged past harm; and (2) Plaintiffs who resided at a County shelter and are parties to the FEHA causes of action (Deborah Kraft, Jordynne Lancaster, and Cyndi Utzman) failed to exhaust administrative remedies through the Department of Fair Employment and Housing prior to filing their lawsuit.

A. Government Tort Claims Act Exhaustion (1st, 2nd, 5th, 6th, 8th, 9th, 12th and 13th Causes of Action [“COAs”])

The Government Tort Claims Act requires pre-filing notices of a claim for “all claims for money or damages against local public entities.” (Cal. Gov't Code §§ 905, 910.)

Even when “many or perhaps even most actions under [certain] statutes seek only injunctive or declaratory relief, and not damages,” the claims must still comply with any claim requirements “where the plaintiff does seek to recover damages from a public entity and that is his or her chief purpose.” (Gatto v. Cnty. of Sonoma (2002) 98 Cal. App. 4th 744, 760.) Courts have held that prefiling requirements “do[] not apply to actions brought primarily for declaratory relief, even though incidental money damages are sought.” (Id. at 761 [emphasis in original].) “[N]o statutory notice [i]s required under the Tort Claims Act” when “potential damages are small and particularly inconsequential compared to the effect of the declarations it seeks.” (Id.) “[W]here a claimant seeks both damages and nonmonetary relief from a public entity in the same action, the applicability of the claim filing requirement turns on whether the damages sought are ancillary to the equitable relief also sought, in which case the claim filing requirement is inapplicable, or the reverse is true, in which case the filing requirement applies.” (Id.)

No notice is required when “the declaratory and injunctive relief sought by [] plaintiffs dedicated to the vindication of the present and future rights of a large class of [] persons was the primary purpose of the litigation, and the money damages they also sought was merely incidental to that overarching goal.” (Id.) However, “[t]he claims filing requirement remains applicable to actions in which money damages are not incidental or ancillary to any specific relief that is also sought, but the primary purpose of the action.” (Id. at 762.) “Exceptions to the filing requirement not specifically enumerated in the Government Claims Act have occasionally been allowed, but only where the claim is based on a statute or statutory scheme that includes a functionally equivalent claim process.” (Id. at 764.)

In Gatto, the court found that the plaintiff primarily sought money damages, not equitable relief because: • “Gatto, an individual who sued in his own behalf and never expressed interest in vindicating rights of anyone other than himself, expressed his personal pecuniary interest by filing a claim in which he informed the county that the damages he sought for the injury he suffered ‘exceed[] amount permitted by Government Code section 910 to be included in [the] claim,’ and that in a suit to be filed in ‘either State or Federal Court’ he would seek not just injunctive relief but ‘attorney's fees and punitive damages in [the] combined amount of $35,000.00.’” (Gatto, 98 Cal. App. 4th at 762-763.) • “Nothing in the record suggests Gatto ever considered his interest in obtaining money damages subsidiary to his interest in injunctive relief.

Damages are the first thing mentioned in the title of his complaint and the prayer for relief, and the title of the complaint cites the specific provisions of the Unruh Civil Rights Act creating liability for actual damages (§ 52, subd. (a)) and authorizing individuals to institute civil actions for such damages. (§ 52.1, subd. (b).)” (Id. at 763.) • “Moreover, putting aside the $23,700 he received in attorney fees and costs, the $1,000 Gatto recovered as damages was the only relief he obtained; the trial court found it unnecessary to grant injunctive relief because the operator of the Fair voluntarily withdrew or appropriately modified the dress code found to have been unconstitutional.” (Id.)

The County contends that Plaintiffs’ First, Second, Fifth, Sixth, Eighth, Ninth, Twelfth, and Thirteenth Causes of Action against the County of Orange fail as a matter of law because Plaintiffs did not comply with the Government Claims Act prior to filing their lawsuit and therefore cannot recover monetary damages against Defendant County for their alleged past harm.

Plaintiffs do not dispute that they did not comply with the Government Claims Act to seek monetary damages, but argue that they do not need to submit a government tort claim when seeking equitable relief such as declaratory and injunctive relief.

This is primarily a dispute over pleadings rather than evidence. Here, Plaintiffs allege in the Fourth Amended Complaint (“4AC”) the following current and/or ongoing conduct: • “County and Anaheim failed to adequately supervise Midnight Mission and Illumination Foundation, their contractors providing shelter services, including by failing to investigate known complaints of invasive sexual harassment in violation of Plaintiffs’ privacy rights, failing to reprimand the responsible parties, and failing to prevent these known harms.

This failure to supervise is ongoing and may result in similar violations of the California Constitution’s right to privacy at other shelters that County and Anaheim continue to fund.” (4AC ¶ 312 [5th COA].) • “County and Anaheim failed to adequately supervise Midnight Mission and Illumination Foundation, their contractors providing shelter services, including failing to investigate known complaints of sexual battery, failing to reprimand the responsible parties, and failing to prevent these known harms.

This failure to supervise may result in sexual battery at other shelters that County and Anaheim continue to fund.” (4AC ¶ 326 [6th COA].) • “County and Anaheim failed to adequately supervise their contractors providing shelter services, including by failing to investigate known complaints of retaliation, failing to reprimand the responsible parties, and failing to otherwise prevent these known harms.” (Id. ¶ 350 [9th COA].) This failure to supervise is ongoing and may result in continued

retaliation in violation of the California Constitution at other shelters that County and Anaheim continue to fund. (Id.) • “Defendants have failed to provide an adequate number of working showers, sinks, and toilets, and failed to maintain the ones they do provide.” (4AC ¶ 377 [12th COA].) • “Defendants’ conduct in tortiously breaching their duty to maintain their shelters in habitable conditions . . . has been grossly negligent.” (4 AC ¶ 393 [4AC ¶ 393 [13th COA].) • Prayer for Relief: 1. That the Court issue a declaration, a writ of mandate, and an injunction prohibiting Defendants from engaging in the unlawful conduct described above. (4AC [Prayer for Relief No. 1 at p. 83].)

Thus, at least as to the 5th, 6th, 9th, 12th and 13th causes of action, there are allegations of harm that is ongoing and/or may recur that are subject to injunctive and declaratory relief. Further, declaratory relief and injunctive relief is the first Prayer for Relief and the pleadings indicate that the equitable relief is the primary goal unlike in Gatto. Accordingly, there is no pre-filing notice requirement under the Government Tort Claims Act for these COAs, and summary adjudication of the to the 5th, 6th, 9th, 12th and 13th COAs is denied on this ground.

On the other hand, the 1st, 2nd, and 8th COAs plead only past harm. Hence, these claims can only seek money damages. Thus, the court grants summary adjudication as to the 1st, 2nd and 8th COAs on this ground.

B. FEHA Exhaustion (1st, 2nd, and 8th COAs)

The court declines to reach the question of whether Plaintiffs were also required to satisfy the exhaustion requirements under FEHA, as the court already grants summary adjudication of these causes of action since Plaintiffs already failed to exhaust the requirements under the Government Tort Claims Act.

The court does note that, while generally, before filing suit, “[a]ny person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Cal. Gov't Code § 12960(c).)

However, there is no exhaustion requirement for housing discrimination cases. “An aggrieved person may commence a civil action [for housing discrimination] whether or not a complaint has been filed under this part and without regard to the status of any complaint.” (Cal. Gov't Code § 12989.1(b).) Furthermore, as the 1st, 2nd and 8th COAs arise from sex-based discrimination and retaliation, there is no

requirement for Plaintiffs to submit a pre-filing requirement under FEHA for their claims. Thus, the court would deny the motion for summary adjudication as to this ground if the court were to reach this issue.

II. Issue No. 2: Plaintiffs’ Fifth, Ninth, Tenth, Eleventh, and Fourteenth Causes of Action for equitable relief fail as a matter of law because doctrine of collateral estoppel bars Plaintiffs from relitigating shelter policy and condition issues that were resolved pursuant to a court- approved settlement agreement in the federal lawsuit Orange County Catholic Worker v. County of Orange, et al., Case No. 8:18-cv-00155- DOC.

A. Collateral Estoppel (5th, 9th, 10th, 11th and 14th COAs)

“Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Ct. (1990) 51 Cal. 3d 335, 341.) “First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.” (Id.) “The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.” (Id. at 342.) “Second, this issue must have been actually litigated in the former proceeding.” (Id. at 341.) “Third, it must have been necessarily decided in the former proceeding.” (Id.) “[C]ourts have previously required only that the issue not have been ‘entirely unnecessary’ to the judgment in the initial proceeding.” (Id. at 342.) “Fourth, the decision in the former proceeding must be final and on the merits.” (Id. at 341.) “Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Id.) “The party asserting collateral estoppel bears the burden of establishing these requirements.” (Id.)

The County asserts that Plaintiffs’ Fifth, Ninth, Tenth, Eleventh, and Fourteenth Causes of Action for equitable relief fail as a matter of law because doctrine of collateral estoppel bars Plaintiffs from re-litigating shelter policy and condition issues that were resolved pursuant to a court-approved settlement agreement in the federal lawsuit Orange County Catholic Worker v. County of Orange, et al., Case No. 8:18-cv-00155-DOC. The County contends that the Catholic Worker litigation addressed the adequacy of conditions and operations at County-funded shelters, including Courtyard and Bridges, which form the basis of Plaintiffs’ claims.

The County contends that the federal settlement established comprehensive “Standards of Care” governing shelter operations, including sanitation, safety, discrimination protections, dispute resolution procedures, curfews, staff training, and facility conditions. The County relies upon a previous stay in this action to argue that there are similar issues between this action and the federal action, but that stay has since been lifted.

Plaintiffs argue that the issues in this case are not identical to those in Catholic Worker because the Catholic Worker case centered on restricting localities from arresting unhoused persons for living outside when there were no available shelter beds. Plaintiffs contend that the prior complaint did not include issues related to conditions inside homeless shelters (with the exception of disability related accommodations) as does the complaint in this case, and note that this action involves violation of state law, not federal law.

Plaintiffs contend that many of the claims in this case postdate the judgment date in the Catholic Worker settlement (July 23, 2019) and therefore cannot be precluded by its terms. Plaintiff argues that the claims for sex discrimination and retaliation under FEHA (First, Second and Eighth causes of action), invasion of privacy (Fifth Cause of Action), retaliation (Ninth Cause of Action), due process and equal protection under the California Constitution (Tenth and Eleventh Causes of Action), uninhabitable conditions (Twelfth and Thirteenth Causes of Action) were never litigated or decided in the Catholic Worker lawsuit.

Here, the County fails to identify what final decision on the merits in the Catholic Worker case of identical issues based on identical factual allegations, would bar the claims in this action. Instead, the County relies upon generalized claims of overlap between the two actions, without any reference to the factual differences in time and scope between the two cases.

As such, the court denies summary adjudication of the 5th, 9th, 10th, 11th and 14th COAs on this ground.

III. Issue No. 3: Plaintiffs’ Fifth, Ninth, Tenth, Eleventh, and Fourteenth Causes of Action for equitable relief fail as a matter of law under the substantive law governing injunctive and declaratory relief.

A. Availability of Injunctive Relief (5th, 9th and 14th COAs)

“An injunction may be granted . . . [w]hen it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.” (CCP § 526(a)(1).) “An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal. App. 4th 1069, 1084.) “It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Id.)

The County argues that the 4AC fails to allege any ongoing misconduct to establish a live controversy. The County argues that Plaintiffs’ do not identify any ongoing, unlawful County practice directed at a current resident. However, as discussed above, there are allegations of ongoing misconduct as to the 5th

and 9th COAs. Further, there are allegations of ongoing misconduct as to the 14th COA: “Defendants are and will be expending public funds by paying the shelters at issue to house homeless people, and paying the salaries of peace officers and others who enforce anti-camping and other laws against homeless individuals who decline to stay at the shelters.” (4AC ¶ 396.) “For the reasons described in the previous Counts, these expenditures of public funds on shelters that violate the law, and on County and Anaheim’s violations of the law, are illegal expenditures of, waste of, or injury to public funds and property, and therefore those illegal shelter policies and practices should be enjoined and declared unlawful under Code of Civil Procedure § 526a and the common law.” (Id. ¶ 397.) Thus, Plaintiffs have adequately pled claims to support injunctive relief.

Moreover, as discussed in further detail below, Plaintiffs have also presented evidence raising a triable issue of fact as to whether the County intends to engage in the prohibited activity (i.e. the allegedly wrongful policies) in the future. Thus, there are adequate pleadings and evidence as to injunctive relief to survive summary adjudication. The court denies summary adjudication as to the 5th, 9th, and 14th COAs on this ground.

B. Availability of Declaratory (10th, 11th, and 14th COAs) Relief

The court may grant declaratory relief “in cases of actual controversy relating to the legal rights and duties of the respective parties[.]” (CCP § 1060.) “The court may refuse to exercise the power [to grant declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (CCP § 1061.)

“Declaratory relief is a broad remedy . . . that . . . may be brought before an actual invasion of rights has occurred[.]” (Burke v. City and County of San Francisco (1968) 258 Cal.App.2d 32, 33.) “But there are limits to the availability of the remedy.” (Id. at 34.) “It will not lie to determine a matter which is or has become moot.” (Id.) “Nor is resort to it warranted when ‘[t]here is no more than a conjecture or supposition ... that at some time in the future a controversy may arise[.]” (Id.) “The controversy must be justiciable, as distinguished from a difference or dispute of a hypothetical or abstract character, and it must be definite, concrete and of a character which admits of specific and conclusive relief by judgment.” (Id.)

“An issue becomes moot when some event has occurred which ‘deprive[s] the controversy of its life.’” (Ctr. for Loc. Gov't Accountability v. City of San Diego (2016) 247 Cal. App. 4th 1146, 1157.) “The policy behind a mootness dismissal is that ‘courts decide justiciable controversies and will normally not render advisory opinions.’” (Id.) “The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful

conduct will be repeated.” (Id.) Where there is a change in practice, but not a change in the defendant’s legal position on an issue and there is no concession that the defendant’s previous practice was unlawful, the issue may not be moot. (Id.)

First, the County argued that these claims concerned only past misconduct and hypothetical future disputes. As discussed above, the 14th COA alleges ongoing misconduct. The 4AC also alleges ongoing misconduct and harm for the 10th and 11th COAs: • “Ms. Powitzky’s, Mr. Hogan’s, and Mr. Martinez’s constitutional rights have been and continue to be violated as long as Defendants County and Anaheim continue to implement the lock-in/shut-out policy at their homeless shelters.” (4AC ¶ 354 [10th COA].) “Ms.

Powitzky remains unhoused but is unwilling to seek shelter at any facility that maintains this unconstitutional policy and unlawfully restricts her freedom of movement.” (Id. ¶ 355.) “Plaintiffs seek declaratory relief that County’s, Anaheim’s, Mercy House’s and Illumination Foundation’s lock-in/shut-out policies violate the due process clause of California’s Constitution, and the right to intrastate travel, and to enjoin enforcement of these policies.” (Id. ¶ 361.) “County, Anaheim, Mercy House, and Illumination Foundation continue to operate homeless shelters that implement the lock-in/shut-out policy.” (Id.) • “Residents of Anaheim Emergency Shelter, Yale Navigation Center, Bridges, the Santa Ana Navigation Center, and the Fullerton Navigation Center are not [permitted to walk on the sidewalks or use bicycles to access their homes].” (4AC ¶ 363 [11th COA].) “Ms.

Powitzky’s . . . constitutional rights remain violated as long as Defendants County, Anaheim, Mercy House, and Illumination Foundation implement the lock-in/shut-out policy at their homeless shelters.” (Id. ¶ 365.) “Plaintiffs seek declaratory relief that County’s, Anaheim’s, Mercy House’s and Illumination Foundation’s lock-in/shut-out policies violate the equal protection clause of California’s Constitution, and to enjoin enforcement of this policy.” (Id. ¶ 367.) “County, Anaheim, Mercy House, and Illumination Foundation continue to operate homeless shelters that implement the lock-in/shut-out policy.” (Id.)

Thus, the Plaintiffs have adequately alleged claims to support declaratory relief.

Second, in reply, the County argues that there is no admissible evidence at this stage that “proves” the existence of ongoing unlawful conduct at other Countyfunded shelters.

Plaintiffs claim that a “live controversy” exists as to the lock-in/shut out policy. Heidemarie Zimmermann, the President of Plaintiff Oma’s Angel Foundation, testified that other unlawful conditions continue at Orange County’s shelters

currently: “We are still spending time to this day helping people that can’t handle the lock-in policy and the inhumane conditions in the shelters, to this day.” (Pltfs.’ Evid., Ex. 35 [Zimmermann Tr., Vol. 2, at 321:25-323:2, 324:14- 21].)

Plaintiffs argue that the County’s contracts with shelters still include the prohibition on accessing the shelter by foot. Plaintiff asserts that the County included in its contracts for the Bridges and Yale shelters that they could not allow residents to walk or bike in or out of the shelter. (ROA 991, Ex. 5 [County of Orange, OC Procurement, Amendment No. 8 to Contract MA-017- 22011902 for Bridges at Kraemer Place Year-Round Emergency Shelter Services 2025-2026 at 9 (“Transportation plans must accommodate ... a no walk up or walk out model.”)]; ROA 993, Ex. 41 [Amendment No. 12 to Contract MA-017-22011908 for Yale Navigation Center Shelter Operations and Services]; ROA 989, Ex. 42 [April 8, 2025 Minutes from Orange County Board of Supervisors].)

Plaintiffs also contend that the County requires Mercy House to implement the no walk-in/no walk out policy at Bridges. (ROA 993, Ex. 29 [Drissen Tr., Vol. 2, at 429:12-25]; id., Ex. 28 [Drissen Tr., Vol. 1, at 179:25-181:19].) Plaintiff also states that the County has to approve the guest expectation forms used by Mercy House Living Center at Bridges, including the provision for the no-walk up, no walk-out policy. (ROA 993, Ex. 28 [Drissen Tr., Vol. 1, at 116:21-117:19; 120:16-122:17].)

Plaintiffs also argue that the County has not renounced the lock-in/shut-out policy, demonstrating a need for equitable relief. (See Ctr. for Loc. Gov’t Accountability, 247 Cal.App.4th at 1157 (finding against mootness, reasoning that a change in City practice “did not equate to a change in the City’s legal position... The City also has not conceded its former practice ... violated the [law]”). Plaintiffs argue that this Court can still issue “effective relief” that will have a “practical impact.” (See Shaw v. Los Angeles Unified Sch. Dist. (2023) 95 Cal.App.5th 740, 774.) “[W]here a court can afford the party at least some relief...the court should not dismiss a case as moot.” (City of Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031.)

In addition, Plaintiffs’ expert on minimizing opportunities for sexual harassment in congregate settings opined that “Orange County’s inadequate supervision of Midnight Mission allowed sexual harassment and abuse at The Courtyard to go unchecked.” (ROA 1007, Ex. 6 [Still Dec. at 6:19-20].) Thus, Plaintiffs contend that it is a disputed fact as to whether the County provides adequate oversight over the shelters it continues to fund.

The court finds that there are triable issues of fact as to whether the Countyfunded shelters are still applying the wrongful policies at issue in this action, and whether the County will implement them in the future as there is no evidence that the County has renounced these policies. The pleadings and the evidence presented by Plaintiffs raise a triable issue of fact as to whether there

is an ongoing policy that harms Plaintiffs warranting declaratory relief. Thus, the court DENIES summary adjudication as to the 10th, 11th and 14th COAs on this ground.

Defendant County of Orange is ordered to give notice of this ruling.

MSAI BY PLAINTIFFS

Plaintiffs Cyndi Utzman, Wendy Powitzky, Catherine Moore, Callie Rutter, Thien Chi Bui & Oma’s Angel Foundation’s (collectively “Plaintiffs”)’ Motion for Summary Adjudication on Causes of Action 10 & 11 is DENIED.

Plaintiffs’ request for judicial notice of the La Mesa Shelter and Bridges at Kraemer Place Shelter is DENIED as it is not the proper subject matter for judicial notice. Plaintiffs’ request for judicial notice of the documents relating to the settlement in Orange County Catholic Worker, et al. v. County of Orange, Case No. 8:18-cv-00155-DOC, is DENIED as irrelevant to the court’s ruling for this Motion. Defendant County of Orange’s (the “County”) request for judicial notice of the documents relating to the settlement in Orange County Catholic Worker, et al. v. County of Orange, Case No. 8:18-cv-00155-DOC, is DENIED as irrelevant to the court’s ruling for this Motion.

The court OVERRULES Defendant Illumination Foundation’s (“IF”) objections to Plaintiffs’ evidence. The fact that certain Plaintiffs are not asserting the causes of action at issue in this Motion does not render their evidence inadmissible and/or irrelevant. The court also finds IF’s other objections without merit or directed at evidence that is irrelevant to this court’s ruling.

The court OVERRULES Plaintiffs’ objections to the County’s evidence as there is sufficient foundation for the statements made by Douglas Becht and Karen Betances at issue, and the other objections are without merit. The court OVERRULES Plaintiffs’ objections to IF’s evidence as there is sufficient foundation for the statements made by Sandra Lozeau and K. Gates, and the other objections are also without merit. The court OVERRULES Plaintiffs’ objections to Mercy House Living Centers’ (“Mercy House”) evidence as the objections to the statements in the Long Declaration and Drissen Declaration concern the weight of the evidence, not their admissibility. The statements are not inadmissible hearsay, do not assume facts not in evidence, and there is adequate foundation for the statements made.

I. Motion for Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims

for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

“A plaintiff . . . has met that party's burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (CCP § 437c(p)(1).) “Once the plaintiff . . . has met that burden, the burden shifts to the defendant. . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.)

“A motion for summary judgment or summary adjudication is properly granted only when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (Campbell v. FPI Mgmt., Inc. (2024) 98 Cal. App. 5th 1151, 1161.) “When plaintiffs bear the burden of proof by a preponderance of evidence at trial, they ‘must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, [they] would not be entitled to judgment as a matter of law, but would have to present [their] evidence to a trier of fact.’” (Id. at 1162.)

Plaintiffs seek summary adjudication of the following issues: • Issue No. 1: Plaintiffs move for summary adjudication on the tenth cause of action in Plaintiffs’ Fourth Amended Complaint. • Issue No. 2: Plaintiffs move for summary adjudication on the eleventh cause of action in Plaintiffs’ Fourth Amended Complaint.

Here, Defendants County of Orange, Illumination Foundation, and Mercy House have each demonstrated that there are multiple triable issues of fact regarding their alleged lock-in/shut-out policies, which Plaintiffs challenge as unconstitutional as violations of their due process and equal protection rights in their Tenth and Eleventh Causes of Action, respectively. Because the court cannot determine the nature of these policies based on undisputed facts, the court cannot determine whether these policies are unconstitutional as a matter of law.

Defendants have also demonstrated several triable issues of fact supporting their defenses to these causes of action with respect to whether Plaintiff Wendy Powitzky has standing to bring these causes of action, whether she can establish entitlement to declaratory and/or injunctive relief, and whether her claims are moot. Thus, summary adjudication of these two causes of action must be denied.

A. Disputed and Undisputed Facts

1. County’s General Shelter Policies

It is undisputed that the County’s plans for its shelters included the following provisions: • “No walk-ups will receive shelter or Multi-Service Center access. New clients and returning clients will receive direct transportation to and from the shelter daily.” (Pltfs.’ Evid., Ex. 3 [November 17, 2015 Plan] [OC015108 at 015117].) • “The shuttle will [sic] transport clients directly to the Year Round Emergency Shelter site. Clients will not be allowed to loiter in the neighborhood surrounding the Year Round Emergency Shelter Program facility or the bus and/or shuttle pick up locations at any time.

There will be strict enforcement of shelter client contract rules which could result in permanent exit from the facility if not followed. Drop-off/pick- up locations are an extension of the shelter and thus any violation such as loitering constitutes a violation of the shelter rules which will be strictly enforced. Operator/Security will conduct random daily checks of 1 mile diameterto [sic] shelter and dropoff/pick-up locations to enforce shelter rules and avoid loitering and homeless congregations.” (Pltfs.’ Evid., Ex. 49 [January 23, 2017 Plan] [OC014889 at 014907].)

Plaintiffs note that the County and the City continue to require under their municipal codes that every shelter approved in the City and County have an “operations plan” that must be cleared by the City or County government. (See Anaheim, Cal. Mun. Code § 18.38.125.050); Orange County, Cal. Mun. Code §7-9-44.8 (d)(1), (d)(14).) Plaintiffs also claim that both the City and the County continue to require that all shelters within city limits have a city or county-approved plan for “loitering control” of shelter residents. (Id.)

2. County & Mercy House’s Bridges Shelter Policies

It is undisputed that the County’s contract with Mercy House for the Bridges shelter from December 14, 2016 through June 30, 2018, included the following provisions: • "Clients found loitering will be issued a warning. Violations of this rule may cause a client to be exited from the facility." • “Good Neighbor Policy will include regular checks of surrounding area to prevent and control loitering issues.” • “Clients will not be allowed to loiter in the neighborhood surrounding the Year Round Emergency Shelter Program facility or the bus and/or shuttle pick up locations at any time. There will be strict enforcement of shelter client contract rules which could result in permanent exit from the facility if not followed. Drop-off/pick-up locations are an extension of the shelter and thus any violation such as loitering constitutes a

violation of the shelter rules which will be strictly enforced. Operator/Security will conduct random daily checks of 1 mile radius to shelter and drop-off/pick-up locations to enforce shelter rules and avoid loitering and homeless congregations.” • “The shelter will operate by bed reservation only and no walk-ins will be accepted. The clients will be expected to utilize the transportation options that will be provided to them.” • “No walk-ups will receive shelter or Multi-Service Center access.

New clients and returning clients will receive direct transportation to and from the shelter daily. Dates and times for daily pick-ups are outlined in the ‘Transportation Policies’” (Pltfs.’ Evid., Ex. 2 [MERCY HOUSE 00752 at 00794, 00801, 00805, 00824, 00833, 00851, 00860].) The contract from July 1, 2018 through June 30, 2019 included the following provision: • “Clients will not be allowed to loiter in the surrounding neighborhood. Violations of this rule may cause a client to be exited from the Year Round Emergency Shelter/Multi-Service Center.

The CONTRACTOR’s Good Neighbor Policy will include regular checks of surrounding area to prevent and control loitering issues.” • “No walk-ups will receive shelter or Year Round Emergency Shelter/Multi-Service Center access.” (Pltfs.’ Evid., Ex. 50 [MERCY HOUSE 00666 at 00700, 00711].) The contract for 2025-2026 states: “Transportation plans must accommodate ... a no walk up or walk out model.” (Pltfs.’ Evid, Ex. 5 at p. 9.)

It is undisputed that the Bridges “Shelter Expectations” contracts state: “In order to remain Good Neighbors, all guests are expected to use the provided shuttles for transportation on to and off of the property. We practice a strict nowalk-up policy. Guests are expected to remain on the property at all times unless when leaving for the day.” (See, e.g. Pltfs.’ Evid., Ex. 7 [MERCY HOUSE 01781 at 01807-01810].) Further, the Bridges shelter rules received by Callie Rutter provided: “Good Neighbor Policy / a) Must be followed in the vicinity of the shelter, on shuttles and at drop off/pick up locations at ALL times. / b) No Walk ups/offs / may result in an exit.” (Rutter Dec. ¶ 14; Pltfs.’ Evid., Ex. 10 [Plaintiff 000108].)

Mercy House’s representatives confirmed that Mercy House does not permit residents to walk or bike to or from the property. (Pltfs.’ Evid., Ex. 52 [2025- 09-08 Mercy House PMK Drissen Tr. Vol 1, 47:10-25, 119:15-18, 120:16-20, 23-24. 121:13-19, 122:2-8, 122:14-17, 130:19-21, 131:9-13, 174:2-5, 174:8- 23].) Plaintiffs claim that Mercy House informs residents that second violations of the “no-walk-up” policy lead to automatic termination from the shelter. (Id. [Mercy House PMK Austin Drissen Tr. Vol 1, 79:15-80:2].) Plaintiff claims that Mercy House has in fact exited residents from the shelter because they violated the no-walk-up policy. (Pltfs.’ Evid., Ex. 52 [Mercy House PMK Drissen Tr. Vol. 1, 83:17-20 at Ex. 52.) It is undisputed that Mercy House’s

County contracts continued to require a strict no-walk-up/no-walk-out transportation policy through at least April 2025. (Mercy House’s Resp. to Pltfs.’ Sep. Stmt. No. 28.)

The County argues that County representatives, declarants, and persons most knowledgeable have consistently averred, sworn, and testified that the County has no lock-in/shut-out policy. (See, e.g., County’s Evid., Ex. C [Betances Dec. ¶ 13].) Karen Betances, the Director of Programs for the Office of Care Coordination for the County of Orange, states: “The County does not maintain any “lock-in / shut-out policy,” and no County “policy” with such terms has ever been applied or implemented at any County-funded emergency shelter.” (Id.) “Indeed, the County of Orange has not established any policies regulating residents’ movement.” (Id.) “‘Good Neighbor policies’ were discretionary policies[.]” (Id.) “The ‘Good Neighbor policies’ do not contain language restricting individuals from walking in or out of the shelters.” (Id.) “In addition, it is the County’s understanding that no resident has been exited for violation of “Good Neighbor Policy” for walking out or in from the shelter.” (Id.)

Douglas Becht, Director of the Office of Care Coordination, unequivocally testified that the County “can’t restrain anyone from walking...in or out of the shelter.” (County’s Evid., Ex. D [Deposition of Douglas Becht, 105:7-12].) The County asserts that shelter residents at Bridges are encouraged to use the shelterprovided transportation options, but they are free to choose their own means of transportation in and out of the shelter, including by bicycle or on foot. (Id. [Becht Depo., 108:25-109:3]; id., Ex.

E [Betances Depo., 145:1-2, 145:9-19, 147:14-148:5].)

The County disputes that the policies are strictly enforced and contends that Bridges residents would not be exited merely for walking into the program, and, if such an event occurred, it would not be consistent with the County’s expectations of the program. (Betances Depo., 131:7-132:5.)

The County also argues that, in or about Spring 2025, the Mercy House Guest Expectations form was modified to remove language about Mercy House practicing a “strict no-walk-up/no-bike-up policy” to more align with the practices in place at the shelter and the expectations of the “Good Neighbor Policy.” (Betances Dec. ¶ 15; see also Becht Depo., 105:7-12; Betances Depo., 68:8-9, 131:7-22, 145:1-2, 145:9-19, 147:14-148:5.) The County claims that it does not require County funded (partial or fully) shelters to implement language restricting shelter participants movement into or out of the shelters. (Id.) The County asserts that shelter residents at Bridges can now leave or arrive at the shelter through multiple means, including via bicycle. (Betances Depo., 224:14-225:16.)

Mercy House claims that as of April 2025, the County amended its transportation policy, and in or about July 2025, when Mercy House learned of the County’s amended policy, Mercy House then amended its transportation

policy to encourage but not mandate shuttle use, eliminating behavioral contracts for walking violations. (Drissen Dec. ¶¶ 5-7; Mercy House’s Evid., Ex. 1 [Patti Long Dec. ¶¶ 6-16]; id., Ex. 2 [Patti Long Depo. Tr. 9/22/25 at pp. 71:9-73:2; 103:5-104:20; 177:15-178:8; 206:3-207:7; 256:17-257:9; 264:4-13; 278-280].) Mercy House claims that it promptly implemented the new policy which now allows clients to enter and exit the facility on foot. (Id.)

3. City of Anaheim & Illumination Foundation’s La Mesa Shelter

It is undisputed that the contract between Anaheim and Illumination Foundation for the La Mesa Shelter stated the following: Clients will not be allowed to loiter in the neighborhood surrounding the Shelter facility or the bus and/or shuttle pick up locations at any time. There will be strict enforcement of Shelter Expectations, which could result in permanent exit from the facility if not followed. Drop- off/pick-up locations are an extension of the Shelter and thus any violation such as loitering constitutes a violation of Shelter rules which will be strictly enforced. IF will conduct random daily checks of 1 mile radius to shelter and drop-off/pick-up locations to enforce shelter rules and avoid loitering, camping, storage of property and homeless congregations. (Pltfs.’ Evid., Ex. 6 [IF R2 PL RFP03 PART 2 – 000001; R2 PL RFP03 PART 2 000097].)

The Transportation Policy at La Mesa was as follows: IF will provide transportation in vans and shuttles to predetermined drop off/pick up locations throughout the City of Anaheim at scheduled times daily 2 am transports and 2pm transports. These locations will vary based on need and IF will coordinate with the City of Anaheim Police Department and Homeless Liaison to identify drop off/pick up locations. In the event an individual self-exits or is exited from the Shelter, IF shall provide transportation and return the individual to his or her original location or to a location of his or her choosing within the city of Anaheim. IF recognizes that transportation is necessary to ensure that the area surrounding the Shelter is not adversely impacted. (IF’s Notice of Lodging, Ex. C [Scope of Work, “Transportation”].)

The La Mesa Shelter Compliance Contracts included the “Transportation Policy,” which stated: “I understand that I can not [sic] walk and/or ride my bike to and from the facility. I must leave and return to the facility in a vehicle. I also understand that loitering is not allowed on or around the premises.” (Pltfs.’ Evid., Ex. 11 [IF R2 PL RFP.03 PART 1 –000776-000777].) The “La Mesa Shelter Rules,” stated: “no foot or bicycle traffic to or from the facility,” “no loitering” and “failure to follow these rules will result in a write up and/or discharge from the facility.” (Pltfs. Evid., Ex. 13.)

The person most qualified for Anaheim confirmed that residents at La Mesa were not allowed to walk in or out of the shelter. (IF’s Notice of Lodgment, Ex. B [S. Lozeau Dec. ¶ 24 [“Generally, residents were not permitted to exit the La Mesa shelter and proceed into the neighborhood on foot, nor return in that manner”].) Further, Plaintiffs contend that Anaheim and IF did not permit La Mesa residents to go for a walk or a jog in the neighborhood near the La Mesa shelter. (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Sandra Lozeau, Vol. 1, 29:7-10, 36:7-10; 38:24-39:3].)

Maria Alcantar and Elliott Recendiz, who worked at La Mesa, both confirmed that La Mesa residents who walked up to the shelter could get written up for violating this shelter policy. (Pltfs.’ Evid., Ex. 33 [Alcantar Tr. 103:19-21]; id., Ex. 34 [Recendiz Tr. 140:19-141:19].) Plaintiff Powitzky was written up for walking back onto the property after a work shift. (Pltfs.’ Evid., Ex. 20 [Powitzky Tr., 223:14-21]; id., Ex. 43 [COA R2 PL RFP.03 PART 1 – 000517].) Plaintiffs argue that IF’s PMK confirmed that shelter residents at La Mesa could be exited for violating the rule against walking or biking to or from the facility. (Pltfs.’ Evid., Ex. 45 [PMK for Illumination Foundation Hoiberg Tr., at 52:18-53:22].)

IF argues that there were occasions where exceptions were made to these rules. [Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Sandra Lozeau, Vol. 1, 27:25- 28:3].) Further, Anaheim’s PMQ stated: “Nobody was exited because there was some violation of a transportation policy.” (Id. [PMQ City of Anaheim Sandra Lozeau, Vol. 1, 98:16-22, 215:15-17, 27:25-28:3].)

4. Rationale Behind the Policies

Plaintiffs argue that the policies were driven by animus against unhoused persons to ensure they were invisible. The County’s PMK stated that the County took “great care” to make sure that Bridges would be “an invisible factor to those around it....And by being invisible, that in itself was a positive contribution to the community...” (Pltfs.’ Evid., Ex. 25 [Depo of Orange County PMK Cymantha Atkinson 9-17-25, 84:13-19].) The County’s representative claimed the so- called lock-in/shut-out policy was needed to address concerns about the impact of the shelter on “local businesses, local neighborhoods, the traffic in the area, whether it would be –whether it would attract other individuals.” (Pltfs.’ Evid., Ex. 25 [Atkinson Tr., 52:10-13].)

Plaintiffs state that Anaheim claimed the “no loitering” and “no walk-up” policies were designed to protect the safety of shelter residents because the shelter is in an industrial area with large trucks. (Plts.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 31:25; 32: 1-13].) Anaheim also claimed the purpose of the policy was to facilitate “orderly conduct,” so the residents did not all try to leave on foot at the same time. (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 77:1-22; 191:17-21].) Anaheim also claimed that they “had to have some type of policy addressing the concerns of the community, otherwise it was going to be difficult to get the shelter proved and up and

running in 45 days.” (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 222:13-223:2.) However, Plaintiffs note that Anaheim informed the public that “All of the [City’s] shelters operate with clear rules and security for the benefit of those staying there and to ensure shelters are good neighbors... Most people don't even know our shelters exist, and it’s hard to tell they're shelters if you happen to drive by. That's by design." (Pltfs.’ Evid., Ex. 47 [Anaheim’s Shelter Plan Q&A for Winter 2020-2021, p. 3].)

Plaintiffs argue that the County did not conduct any studies to assess the impact of its no walk-in/no walk-out policy on shelter residents. (Pltfs.’ Evid., Ex. 36 [Orange County 6th Amend. Resp. to Pls. Special Interrogatories, Set 1 (7/17/2024) at p. 6].) Plaintiffs assert that Anaheim did not consider alternative policies to its transportation policy. (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 222:7-12].) Plaintiffs also note that Orange County and Anaheim did not consider data on the effectiveness of the lock-in/shut-out policy when they developed it. (Pltfs.’ Evid., Ex. 36 [Orange County 6th Amend.

Resp. to Pls. Special Interrogatories, Set 1 (7/17/2024) at p. 6]; Pltfs.’ Evid., Ex. 26 [Lundy Tr. (Vol. 2) 163:2-11]; Pltfs.’ Evid., Ex. 30 [Patti Long Tr., 228:8-24].) Plaintiffs contend that the only study relied upon by Orange County in connection with developing the Bridges shelter, the Final Initial Study Mitigated Negative Declaration (“Orange County Study”), noted that Anaheim Police Department had no statistical information related to potential criminal behavior associated with emergency homeless shelters. (Pltfs.’ Evid., Ex. 1 [Final Initial Study Mitigated Negative Declaration (OC015531 at OC015586-015587].)

The County study also determined the shelter would create no impact that would conflict with policies, plans and programs regarding “pedestrian facilities or otherwise decrease the performance or safety of such facilities,” and “no mitigation measures are required.” (Id. [OC015531 at 015599-015600].) Further, Plaintiffs state that IF did not conduct any study or analysis relating to the impacts of the transportation policy on shelter residents at La Mesa. (Pltfs.’ Evid., Ex. 45 [PMK for Illumination Foundation Hoiberg Tr., at 72:25-74:23].)

Plaintiffs contend that Anaheim’s representative claimed it was dangerous for shelter residents to walk around an industrial neighborhood, but admitted that people who don’t live in the shelter are free to walk around the neighborhood. (Pltfs.’ Evid., Ex. 35 [Gates Tr., 211:5-14]; Id., Ex. 31 [PMQ City of Anaheim Lozeau Tr., 37:14-17, 207:22-25].) Further, Anaheim did not require any other establishments, like the strip club next to the shelter, to have a transportation policy restricting walking or biking. (Id.) It is undisputed that shelter staff were free to walk around the neighborhood. (Pltfs.’ Evid., Ex. 45 [PMK for Illumination Foundation Hoiberg Tr. at 76:23-77:6].)

Mercy House states that the no walk-up policy “helped to address concerns by the City of Anaheim and County that a walk-up shelter would present hardships on the local businesses and surrounding neighborhoods.” (Pltfs.’ Evid., Ex. 40

[Mercy House Supp. Resp. to Pls. Rogs Set 1 (4/18/2023) at p. 4].) Mercy House contends that the stated purpose was to limit foot traffic and minimize impacts on the surrounding neighborhood. (Drissen Dec. ¶ 5.)

The County’s Director of Community Services presented the County’s plan for the shelters to the Board of Supervisors, explaining that the “no walk-ins or walk outs” policy would further residents’ safety and make the shelter a “good neighbor to the surrounding community.” (Presentation of Karen Roper to Orange County Board of Supervisors, 17:11-17:26 (Nov. 17, 2015), https://ocgov.granicus.com/player/clip/2156?view_id=8&redirect=true&h=3c6 6312b052189122dacb1c2cff41360.) In responding to public comments about the shelter, Orange County Supervisor Shawn Nelson stated: “Our problem is going to be near us whether it is in this building or any other building.” (Orange County Board of Supervisors, November 17, 2015 Orange County Board of Supervisors Meeting, at 3:41:43-3:42:49 (Nov. 17, 2015), https://ocgov.granicus.com/player/clip/2156?view_id=8&redirect=true&h=3c6 6312b052189122dacb1c2cff41360.)

The County states that it implemented the no loitering and no walk-up policies in part to “encourage shelter operators to work with the surrounding neighborhood to ensure the surrounding area is kept clean[.]” (Pltfs.’ Evid., Ex. 36 [Orange County 6th Amend. Resp. to Pls. Rogs Set 1 (7/17/2024) at p. 6].) The County asserts that the “plausible reasons” for these policies include shelter safety, coordinating resident transportation, and maintaining neighborhood compatibility and integration. (County’s Evid., Ex. M [PMK Deposition of Zulima Lundy, 261:19-262:6 [“The goal of the Good Neighbor Policy is for the shelter operator to have a cordial and positive relationship with the surrounding businesses or property owners in near proximity to the emergency shelter program.”]].)

IF argues that the La Mesa shelter existed on City-owned property in an industrial area adjacent to a busy freeway. (IF’s Notice of Lodging, Ex. B [Lozeau Dec. ¶¶ 25-28].) The areas adjacent to the shelter have traffic with large trucks and other industrial vehicles, and do not contain a grocery store or services for shelter residents on foot. (Id.) IF argues that the persons most knowledgeable from the City and Illumination Foundation made clear that the policy in question was created with a background knowledge of the geographic area in which La Mesa was located as well as the “daily practices and work with [] clients.”

The policy was created, in part, with “institutional knowledge” possessed by those involved. (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 285:2-9]; id., Ex. 45 [PMQ Illumination Foundation Hoiberg, 73:3-74:16].) IF contends that the La Mesa transportation policy arose from the City’s consideration of several policy factors, and an effort to address concerns and balance interests of shelter residents, staff and neighbors. (IF’s Notice of Lodging, Ex. B [S. Lozeau Dec. ¶¶ 25-28].) IF contends that when the City was considering the location of La Mesa, concerns were expressed by surrounding

businesses and other stakeholders regarding the potential for increased pedestrian traffic in an industrial area, or potential criminal activity associated with the facility. (Id. ¶¶ 27-28; Id., Ex. E [S. Lozeau Dep., Vol. I, at 133:6- 136:22].) IF asserts that the expedited creation timeline for the shelter limited the opportunity for community input that would typically accompany the permitting process, so the City determined that the transportation policy - relying on shuttles to limit foot traffic outside La Mesa - was an appropriate way to address community concerns while creating the shelter as quickly as possible. (Id.)

5. Continuing Use of the Policies

Plaintiffs contend that Mercy House still maintains the no walking or biking in or out policy at Bridges, and still enforces that policy. (Pltfs.’ Evid., Ex. 52 [2025-09-08 Mercy House PMK Drissen Tr. Vol 1 at 174:2-5, 8-23]; id., Ex. 29 [2025-09-16 Mercy House PMK Drissen Tr. Vol 2 at 432:7-10; 434:10-13]; id., Ex. 21 [PMK Oma’s Angel Foundation Zimmerman Tr. Vol 2 325:12-19].) The contract for 2025-2026 states: “Transportation plans must accommodate . . . a no walk up or walk out model.” (Pltfs.’ Evid, Ex. 5 at p. 9.)

Plaintiffs also assert that IF currently has a policy that residents cannot walk on or off the property at its Fullerton and Carnegie shelters. (Pltfs.’ Evid., Ex. 34 [Recendiz Tr. 145:23-146:13]; id., Ex. 35 [Illumination Foundation PMK Gates Tr. 130:10-131:10]; id., Ex. 45 [PMK for Illumination Foundation Hoiberg Tr., 85:5-7, 85:13-86:11].)

Plaintiffs argue that the harm by these policies is ongoing because Oma’s Angel’s Foundation has spent its time and resources helping people who are harmed by the policy, and it continues to do so. (Pltfs.’ Evid., Ex. 15 [Text messages to Heidi Zimmermann (Plaintiff 003059 at 003061, 003073)]; Zimmermann Decl., ¶¶ 5-8; Pltfs.’ Evid., Ex. 21 [Oma’s Angel Foundation PMK Heidemarie Zimmermann Tr. 10-10-2025 (Vol. 2) 324:14-21].) Plaintiffs assert that Wendy Powitzky is still unhoused and testified that she would not stay in a shelter again in part because of the lock-in/shut-out policy. (Pltfs.’ Evid., Ex. 20 [Powitzky Tr. 34:18-35:5, 151:23-152:3].)

However, County representatives testified at deposition that the County does not prevent or prohibit shelter residents at Bridges from walking in or walking out of the shelter, or using any other form of transportation. (Becht Depo., 105:7-12; Betances Depo., 68:8-9, 131:7-22, 145:1-2, 145:9-19 147:14-148:5.)

The City of Anaheim continues to fund a shelter (Anaheim Emergency Shelter), which has a transportation policy regulating how shelter residents can come and go from that shelter. (Pltfs.’ Evid., Ex. 31 [PMQ City of Anaheim Lozeau Tr. Vol. 1 23:9-20, 201:4-9].) However, IF argues that the policy used at the Anaheim Emergency Shelter is wholly different than the policy that was

used at La Mesa due to the different geography of the shelters in question. (IF’s Notice of Lodging, Ex. B [Declaration of S. Lozeau, ¶ 27-37].) IF runs only two navigation centers, and IF claims that since the closure of La Mesa in 2022, IF has changed and/or revised its client documentation and policies, including those related to transportation, curfew, belongings, illegal activity, etc. (IF’s Notice of Lodging, Ex. G at 117:2-8.) The transportation policy specifically has changed names and is now referred to as the “Good Neighbor Policy.” (Id. at 130:10-131:12.)

B. Tenth Cause of Action: Due Process

“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws[.]” (Cal. Const. art. I, § 7.) “No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const. amend. XIV.)

Plaintiffs contend that Defendants’ policies violated their right to due process.

1. Whether the Policies Unconstitutionally Restricted Plaintiffs’ Right to Travel

Citizens “possess[] the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom with a consequent authority in the states to forbid and punish violations of this fundamental right.” (In re White (1979) 97 Cal. App. 3d 141, 149.) “Like all constitutional rights the right of free movement is not absolute and may be reasonably restricted in the public interest.” (Id.) “Conditions which infringe on constitutional rights are not automatically invalid.” (Id.) “Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.” (Id. at 149-150.) “If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used.” (Id. at 150.) “[A] broad condition which completely prohibits mere presence in a geographical area at all times” is likely unconstitutional, unlike “the prohibition of entry into selected and particularized places (such as bars, pool rooms and the like) with reasonable restrictions as to time.” (Id.) “Limitations as to times in which a defendant has legitimate business or legitimate reason to be in a particular area or a prohibition as to working therein have been upheld.” (Id.) “Reasonable curfew restrictions are also proper.” (Id.)

However, “a condition that a defendant not enter a county without authorization in advance was condemned as unduly harsh.” (Id.)

Here, the court cannot ascertain the constitutionality of these challenged policies when the very nature of their restrictions and enforcement is in dispute. There is insufficient evidence to establish whether the Defendants had alternatives to the challenged policies, and conflicting evidence of how much the policies restricted Plaintiffs’ right to travel. There is also conflicting evidence of whether each Defendant implemented and enforced anti-loitering restrictions and what type of travel such policies may have restricted. Plaintiffs claim the defendants define “loitering” broadly and colloquially to mean all unaccounted for presence in an area but present no evidence defendants adopt this definition. The defendants could just as easily adopt only the stricter legal definition approved by the courts.

“[S]tate courts have found a violation of the constitutional right of intrastate travel only when there is a direct restriction on the right to travel . . .” (Allen v. City of Sacramento (2015) 234 Cal. App. 4th 41, 60.) “Otherwise lawful ordinances that have an indirect or incidental impact on the right to travel and do not discriminate among classes of persons by penalizing the exercise of the right to travel are not constitutionally impermissible.” (Id. [stating that “[w]hile the camping ordinance might discourage some homeless persons from traveling into the City, it does not directly restrict the right to travel.”].) “[T]he right to travel does not give plaintiffs the right to live or stay where they want.” (Id. at 61.) There is “no constitutional obligation to provide homeless persons with accommodations to facilitate their exercise of the right to travel.” (Id.)

In light of the lack of clarity on the nature of the subject policies, the court cannot determine whether these policies directly impacted Plaintiffs’ right to travel or whether their effects were only incidental to Plaintiffs’ right to travel.

Further, “burdens on a single mode of transportation do not implicate the right to interstate travel.” (Gilmore v. Gonzales (9th Cir. 2006) 435 F.3d 1125, 1137.) “[T]he Constitution does not guarantee the right to travel by any particular form of transportation.” (Id. at 1136 [holding that TSA identification policy does not violate right to travel].)

Here, due to the dispute over the nature of the anti-loitering policies, it is unclear if the challenged policies restricted only modes of transportation or Plaintiffs’ travel surrounding the shelters entirely.

“[T]he freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” (City of Chicago v. Morales (1999) 527 U.S. 41, 53.) “[A]n individual's decision to remain in a public place of his choice is . . . a part of his liberty[.]” (Id. at 54.) For example, a “Gang Congregation Ordinance, which prohibits ‘criminal street gang members’ from ‘loitering’ with one another or with other persons in any public place,” is unconstitutionally vague. (Id. at 45-46.) “[T]he definition of

‘loitering’ in the ordinance drew no distinction between innocent conduct and conduct calculated to cause harm.” (Id. at 50-51.)

Here, as discussed above, the anti-loitering policy is not unequivocally defined by any party, and thus the court cannot determine if the purported policies restricted innocent conduct so as to be unconstitutionally vague.

2. Whether Strict Scrutiny or Rational Basis Test Applies to these Policies

“Absent a compelling state interest, a State may not burden the right to travel[.]” (Dunn v. Blumstein (1972) 405 U.S. 330, 342 [discussing durational residence requirements for right to vote].) “Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.” (Id.) “[T]hey are unconstitutional unless the State can demonstrate that such laws are ‘necessary to promote a compelling governmental interest.’” (Id.) “Statutes affecting constitutional rights must be drawn with ‘precision,’ . . . and must be ‘tailored’ to serve their legitimate objectives.” (Id. at 343.) “[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” (Id.)

However, courts do not “apply the strict constitutional test to legislation . . . which does not penalize travel and resettlement but merely makes it more difficult for the outsider to establish his residence in the place of his choosing.” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal. 3d 582, 602–03.) “[E]ven if an enactment affects interstate travel, it still must be sustained against a constitutional attack if the invasion is inconsequential and does not unreasonably burden freedom of movement.” (R. H. Macy & Co. v. Contra Costa Cnty. (1990) 226 Cal. App. 3d 352, 368 [finding law that increased taxation on property when it is newly purchased based on fair market value at the time of purchase does not violate right to travel].)

Here, there is conflicting evidence as to whether residents are penalized for violating the challenged policies and whether there were alternatives to the challenged the policies. Thus, the court cannot determine whether the challenged policies are subject to strict scrutiny requiring a compelling state interest. Further, the parties dispute and provide conflicting evidence as to whether Defendants’ challenged policies served a compelling state interest. Thus, there are triable issues of fact as to whether the challenged policies would pass the strict scrutiny test.

When an act “does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies.” (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 481.) “[S]tatutory classification that neither proceeds

along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Id. at 482 [emphasis in original].) “Where there are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’” (Id.) However, some policies are unconstitutional under the rational basis test if the restriction “bears no rational relationship to advancing the state's legitimate goal.” (In re Taylor (2015) 60 Cal. 4th 1019, 1038.) Such restrictions violate an individual’s “basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive.” (Id.)

The rationale behind these policies is in dispute and as the nature of the policies is also in dispute, the court cannot determine if the policies relate to the stated goals asserted by Defendants. The court finds that, at a minimum, Defendants have raised a triable issue of fact as to whether they had a plausible reason for implementing the challenged policies so as to pass the rational basis test.

As shown in the factual disputes above, the parties dispute the nature of the challenged policies, whether they include any broad anti-loitering provisions, whether and how strictly they are enforced, whether they are still being implemented, the rationale behind the policies, and whether the strict scrutiny or rational basis tests apply to determining the constitutionality of these challenged policies. As such, the court must deny Plaintiffs’ motion for summary adjudication of their Tenth Cause of Action for violation of their due process rights.

C. Eleventh Cause of Action: Equal Protection

Plaintiffs argue that the challenged policies by Defendants violate their equal protection rights because they discriminate on the basis of wealth and motivated by improper animus.

“[A] State can no more discriminate on account of poverty than on account of religion, race, or color.” (In re Antazo (1970) 3 Cal. 3d 100, 109.) The “distinction drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.” (Id. at 110.) However, a stricter standard has been prescribed in cases involving “suspect classifications” or “fundamental interests.” (Id.) Under the strict scrutiny standard, “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” (Id. at 111 [emphasis in original].) Suspect classifications include “discrimination based upon poverty.” (Id. at 112.)

“[D]iscrimination on the basis of wealth is an inherently suspect classification which may be justified only on the basis of a compelling state interest.” (Serrano v. Priest (1971) 5 Cal. 3d 584, 617.) Equal protection violations may be based on a showing that a government act “produces substantial disparities” between different classifications on the basis of wealth. (Id. at 618.)

Under the rational basis test, “the challenged classification must rationally further some legitimate governmental interest.” (U. S. Dep't of Agric. v. Moreno (1973) 413 U.S. 528, 534.) Where a classification is “is not only ‘imprecise’, [but also] wholly without any rational basis,” it fails to pass the rational basis test. (Id. at 538 [finding classification not rationally related to state’s asserted purpose of preventing fraud].) “For if the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” (Id. at 534.)

Plaintiffs assert that the evidence demonstrates that the policies have no rational basis and are driven by animus, pointing to the commentary and language used in developing the policies and the lack of evidence supporting the Defendants’ asserted safety rationale behind the policies. Plaintiffs argue that calling unhoused people a “problem,” and defining a “good neighbor” as one where shelter residents are “invisible” demonstrates animus against unhoused people. Plaintiffs note that neither the County nor Anaheim had any empirical evidence that the policy would further either resident or community safety.

As with the Tenth Causes of Action, the court cannot ascertain the constitutionality of the challenged policies as there are disputes of fact as to the nature and scope of these policies, triable issues of fact as to the rationale behind the policies (including whether they were driven by animus against unhoused individuals), and thus triable issues of fact as to whether they can pass either the strict scrutiny or rational basis test. There are also triable issues of fact as to whether these challenged policies in fact discriminate on the basis of wealth, as the parties dispute whether the anti-loitering policies apply only to shelter residents. Accordingly, the court denies summary adjudication as to the Eleventh Cause of Action for violation of Plaintiffs’ equal protection rights.

Although this ground alone is a sufficient basis to deny summary adjudication of the 10th and 11th causes of action, the court also finds triable issues of fact in some of the defenses interposed by the defendants.

D. Plaintiff Wendy Powitzky’s Standing

As a threshold matter, the only Plaintiff asserting these two causes of action is Wendy Powitzky. The court already struck Plaintiffs Hogan and Martinez from the Fourth Amended Complaint and sustained the County’s demurrer as to the

Tenth and Eleventh Causes of Action as to Plaintiff Oma’s Angel Foundation twice, leaving only Plaintiff Powitzky. (ROA 613 at pp. 1-2.) Thus, Plaintiffs must establish that Plaintiff Powitzky has standing.

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (CCP § 367.) To have standing, “a party attacking the constitutionality of the statute must show some actual or threatened injury.” (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 412.) “A person who invokes the judicial process lacks standing if he, or those whom he properly represents, ‘does not have a real interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.’” (Id. at 413.) “To have standing, a party must be beneficially interested in the controversy; that is, he or she must have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’” (Id.) “The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Id.) “This standard ‘is equivalent to the federal ‘injury in fact’ test[.]’” (Id.) “Without standing, there is no actual or justiciable controversy, and courts will not entertain such cases.’” (Id.)

Here, Defendants have presented evidence raising a triable issue of fact as to whether Powitzky has standing to assert the Tenth and Eleventh Causes of Action. It is undisputed that Powitzky never resided at a County-funded shelter and thus never resided at Mercy House’s Bridges shelter, so was never subject to the policies at that shelter. IF argues that Powitzky was not harmed by any policy when she was living at the La Mesa shelter as she quit both of the jobs she claimed she lost when she was at La Mesa and is voluntarily choosing not to reside at any shelter. (IF’s Notice of Lodging, Ex. F at 103:24-104:14, 120:25-121:10.) Therefore, at a minimum, there are triable issues of fact as to whether Powitzy has a beneficial interest or has been injured by Defendants’ challenged policies.

Plaintiffs rely on taxpayer standing, but “Section 526a authorizes a taxpayer to file “[a]n action to ... prevent[] any illegal expenditure of ... funds ... of a ... city and county of the state[.]” (Van Atta v. Scott (1980) 27 Cal. 3d 424, 447.) That claim is in Plaintiffs’ Fourteenth Cause of Action, not the Tenth and Eleventh Causes of Action. Therefore, Powitzky cannot establish standing pursuant to CCP § 526a for claims that assert violations of her constitutional rights rather than any illegal expenditure of funds.

Plaintiffs also claim that Powitzky has public-interest standing. Under the public-interest exception for writs of mandate, a plaintiff “need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question

enforced.” (Green v. Obledo (1981) 29 Cal.3d 126, 144.) Plaintiffs contend that the lock-in/shut-out policy implicates public interest standing based on “public rights that every citizen has an interest in upholding.” (People for Ethical Operation of Prosecutors & Law Enforcement v. Spitzer (2020) 53 Cal.App.5th 391, 410.) However, a writ of mandamus may only be issued to a “party beneficially interested.” (CCP § 1086.) “To establish a beneficial interest, the petitioner must show he or she has some special interest to be served or some particular right to be preserved or protected through issuance of the writ.” (Doe v. Albany Unified Sch. Dist. (2010) 190 Cal. App. 4th 668, 683.) “[T]he writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment.” (Id.)

As stated above, there is a triable issue of fact as to whether Powitzky has a beneficial interest to have standing to support seeking a writ of mandate, and Plaintiffs cannot rely simply on the fact that Powitzky sought a writ of mandate to show she has a beneficial interest.

As Powitzky’s standing cannot be determined as a matter of law, the court denies Plaintiffs’ Motion for Summary Adjudication of the Tenth and Eleventh Causes of Action asserted by Powitzky.

E. Mootness

Defendants argue that Plaintiffs’ claims cannot be summarily adjudicated as a matter of law because the challenged policies are no longer in effect, and unlikely to be implemented again, rendering the claims both moot and preventing Plaintiffs from obtaining declaratory or injunctive relief.

“An injunction may be granted . . . [w]hen it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.” (CCP § 526(a)(1).) “An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal. App. 4th 1069, 1084.) “It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Id.)

The court may grant declaratory relief “in cases of actual controversy relating to the legal rights and duties of the respective parties[.]” (CCP § 1060.) “The court may refuse to exercise the power [to grant declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (CCP § 1061.)

“Declaratory relief is a broad remedy . . . that . . . may be brought before an actual invasion of rights has occurred[.]” (Burke v. City and County of San

Francisco (1968) 258 Cal.App.2d 32, 33.) “But there are limits to the availability of the remedy.” (Id. at 34.) “It will not lie to determine a matter which is or has become moot.” (Id.) “Nor is resort to it warranted when ‘[t]here is no more than a conjecture or supposition ... that at some time in the future a controversy may arise[.]” (Id.) “The controversy must be justiciable, as distinguished from a difference or dispute of a hypothetical or abstract character, and it must be definite, concrete and of a character which admits of specific and conclusive relief by judgment.” (Id.)

“A case becomes moot—and therefore no longer a “Case” or “Controversy” for purposes of Article III—“when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (Already, LLC v. Nike, Inc. (2013) 568 U.S. 85, 91.) “[T]he case is moot if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.’” (Id.) “[A]n ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages’ of the litigation.” (Id. at 90-91.)

However, “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” (Id. at 91.) “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” (Id.) In the context of mootness, courts “presume the government is acting in good faith” when making a change in policy. (Am. Cargo Transp., Inc. v. United States (9th Cir. 2010) 625 F.3d 1176, 1180.)

“The policy behind a mootness dismissal is that ‘courts decide justiciable controversies and will normally not render advisory opinions.’” (Roger v. Cnty. of Riverside (2020) 44 Cal. App. 5th 510, 530.) “The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated.” (Id. [emphasis in original].) “Declaratory relief is appropriate where there is a justiciable controversy, but not where the dispute is moot, or only hypothetical or academic.” (Ghost Golf, Inc. v. Newsom (2024) 102 Cal. App. 5th 88, 100.) When a policy is rescinded, “there is no longer anything to enjoin under [a plaintiff’s] request for . . . [an] injunction, and a judgment as to the [the policy’s] validity would have no effect.” (Id.)

Here, Defendants have presented evidence that the challenged policies are no longer in effect either by amendment, closure of the facility using the challenged policies, or because the remaining facilities have policies that are different from the policies challenged by Plaintiffs. Further, Plaintiff Powitzky has indicated that she never intends to return to any of Defendants’ shelters and thus it is unlikely she will be subject to any challenged policy in the future. The court finds this evidence sufficient to raise a triable issue of fact as to whether Plaintiffs’ Tenth and Eleventh Causes of Action are moot because it is unlikely that the challenged policies will be implemented again.

Plaintiffs argue that this situation fits under a recognized exception to mootness when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” (Cnty. of Los Angeles Dep't of Pub. Health v. Superior Ct. (2021) 61 Cal. App. 5th 478, 487.) Plaintiffs argue that the County has not renounced the lock-in/shut-out policy, demonstrating a need for injunctive relief. (See Ctr. for Loc.

Gov’t Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1157 (finding against mootness, reasoning that a change in City practice “did not equate to a change in the City’s legal position... The City also has not conceded its former practice ... violated the [law]”). Plaintiffs argue that this Court can still issue “effective relief” that will have a “practical impact.” (See Shaw v. Los Angeles Unified Sch. Dist. (2023) 95 Cal.App.5th 740, 774.) “[W]here a court can afford the party at least some relief...the court should not dismiss a case as moot.” (City of Cerritos v.

State of California (2015) 239 Cal.App.4th 1020, 1031.)

However, as the court ruled as to the City of Anaheim’s motion for summary judgment or adjudication, “Plaintiffs also fail to establish that these claims are likely to evade review because they (and future plaintiffs) would be deprived of any remedy should the City implement the challenged policy at a shelter in the future. Nor would they be deprived of a remedy as the establishment of a shelter utilizing the same transportation rules would not be a passing or evanescent process and could easily be challenged in court, if necessary by restraining order or injunction.” (ROA 1169.) The same reasoning applies here. Therefore, the court denies summary adjudication on the additional ground that there are triable issues of fact as to mootness and whether Plaintiffs are entitled to injunctive and/or declaratory relief.

The court declines to reach the issue of collateral estoppel based on the settlement in Orange County Catholic Worker, et al. v. County of Orange, Case No. 8:18-cv-00155-DOC, as it is not necessary to the court’s ruling.

Plaintiffs are ordered to give notice of this ruling.