Utzman vs. County of Orange

The court grants summary adjudication as to the Plaintiffs’ Twelfth Cause of Action for Breach of Implied Warranty of Habitability on the grounds that based upon the undisputed material facts and as a matter of law Plaintiffs cannot establish a right to recover for Breach of Implied Warranty of Habitability in the absence of a residential lease.

The court grants summary adjudication as to the Plaintiffs’ Tenth Cause of Action for Due Process, Eleventh Cause of Action for Equal Protection, and Fourteenth Cause of Action for Unlawful Expenditure of Public Funds on the grounds that these claims, which seek only declaratory and injunctive relief, are moot.

The court GRANTS Plaintiffs’ request for judicial notice of the “Revised July 23, 2019 Settlement Agreement Pursuant to Court’s August 25, 2020 Order (Dkt. 376) in the matter of Orange County Catholic Worker, et al. v. Orange County, et al., Case No. 8:18-cv-00155-DOC-JDE, filed in the Central District of California on August 28, 2020.” (Cal. Evid. Code § 452(d).)

The court OVERRULES Plaintiffs’ objections to the Declaration of Sandy Lozeau, the Deputy Director of the City’s Department of Housing and Community Development, and to statements from the Fourth Amended Complaint.

The court SUSTAINS the City’s Objection Nos. 1-2 to the deposition of Wendy Powitzky as the statements constitute inadmissible hearsay.

The court SUSTAINS the City’s Objection Nos. 39-41 to the deposition of Sandra Lozeau, as the statements are inadmissible.

The court OVERRULES the City’s remaining objections to Plaintiffs’ evidence.

At issue in this action are the security and transportation policies implemented at the La Mesa shelter, which purportedly harmed resident Plaintiffs who allege that they suffered sexual harassment, lost jobs, and were retaliated against for reporting sexual harassment. It is undisputed that the City purchased the property and constructed the La Mesa shelter and then contracted with Illumination Foundation (“IF”) to operate the facility. The contract for operating the La

Mesa shelter incorporated a ‘Scope of Work’ submitted by IF, and a ‘Management and Operation Plan’ drafted by IF with input from City staff.

I. The Security Policy

The La Mesa Scope of Work states under Security: “IF will contract with a state licensed security vendor that will have 2 guards 24 hours 7 days a week. One guard will be stationed inside the shelter at the metal detector and one guard stationed outside of the Shelter in the recreation area and doing rounds on the property hourly. IF will follow policies and procedures that prioritize and promote the utmost safety of Clients, staff, volunteers, and the community. IF will strive to provide an atmosphere that promotes community, stays alert for signs of conflict, and confronts behaviors before they escalate.

The security plan will include a multi-faceted approach involving secured entrances, security searches upon entrance, confiscation of harmful contraband, trained security personnel providing around-the-clock indoor and outdoor coverage, security cameras and lighting. Other program elements that will support security efforts include no walk-ups and no loitering policies.

Security will be on site at all times, and will conduct security rounds of the facility continually.

Security staff will be stationed both inside and outside the shelter to ensure maximum coverage. Program and Security staff will have communication with each other via portable electronic equipment. Security staff will be contracted through a third party vendor. Security staff will receive "Homeless Sensitivity Training" through IF resources. Security staff will be clearly identifiable with uniform shirts and/or jackets stating "SECURITY" on the back.” (Def’s Evid., Ex. D at p. COA R2 RFP.03 PART 2 – 000184.)

The La Mesa Shelter Management and Operation Plan 2019 states in relevant part under Entrance and Exit Procedures:

All staff and residents will enter and exit through one main entry gate. It will be equipped with a security guard and security cameras for inside and outside the facility,

All guests will present identification upon entry, sign in upon entrance, and sign out upon exit from building. Residents will enter the front gate and bags will be checked by security.

Code compliant security lighting will be installed both inside and outside the facility and highlight entrances and parking lot.

Staff and security will monitor security through cameras as needed. Staff will conduct security rounds of the facility every 30-60 minutes, be accessible and visible to guests, and survey facility for any potential concerns. Staff will have communication with each other via portable electronic equipment. (Def.’s Evid., Ex. E at p. COA R2 PL RFP-1 000040.)

II. The Transportation Policy

The La Mesa Scope of Work states under Transportation: 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 2 pm 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. (Def.’s Evid., Ex. D at p. COA R2 RFP.03 PART 2 – 000183.)

The La Mesa Shelter Management and Operation Plan 2019 states in relevant part under Staff Transportation of Residents: “Staff/volunteers may transport a resident to appointments or errands as time permits. IF staff will provide 2 transports to the Artic in the morning and 2 transports in the evening. Clients may not walk off or

on property. Residents may ride with each other if driver is licensed driver and the car insurance covers the passenger. Any transportation of residents by staff must be in a IF fleet vehicle driven by a staff with valid California Department of Motor Vehicles (DMV) license.” (Def’s Evid., Ex. E at p. COA R2 PL RFP-1 000048.)

The LA MESA SHELTER RULES include: “NO FOOT OR BICYCLE TRAFFIC TO OR FROM THE FACILITY,” “RESIDENTS MUST ENTER THROUGH SECURITY AND SUBMIT TO SECURITY PROCEDURES WHEN RE- ENTERING THE FACILITY,” and “NO LOITERING,” with a note that “FAILURE TO FOLLOW THESE RULES WILL RESULT IN A WRITE UP AND/OR DISCHARGE FROM THE FACILITY.” (Def.’s Evid., Ex. N)

The Illumination Foundation Compliance Contract requires that residents initial a box that states: “I understand that I can not walk and/or ride my bike to and from the facility. I must leave and return to the facility in a vehicle.” (Pltfs’ Evid., Ex. 12 at p. IF R2 PL RFP.03 PART 1 – 001339.)

III. Motion for Summary Judgment/Adjudication

A. First Cause of Action: Discrimination – Hostile Environment Harassment; Second Cause of Action: Discrimination – Quid Pro Quo Harassment; Third Cause of Action: Discrimination – Based on Sex; Fifth Cause of Action: Invasion of Privacy

The City seeks summary adjudication of the First, Second and Third Causes of Action on the grounds that its security policy does not violate the Fair Employment and Housing Act (“FEHA”) and did not result in disparate treatment. However, Plaintiffs state in opposition that their claims are not based on the policy itself, but based upon the implementation of the security policy by the City’s contractor IF and subcontractor PA’s employees at the shelter.

Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. (Texas Dep't of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc. (2015) 576 U.S. 519, 540.) Courts have stated that “housing authorities and

private developers [should] be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest.” (Id. at 541.) The City states that: “With respect to the La Mesa Shelter, it was of paramount importance to Anaheim that shelter residents, who included vulnerable females and families with children, be safe at the shelter. To that end, the Scope of Work required Illumination Foundation to hire a 24/7 licensed security vendor, and implement a security plan that included residents being searched upon entrance.” (Lozeau Dec. ¶ 15.)

However, Plaintiffs’ expert, Joseph W. Doherty, opined that: “It is my opinion that the implementation of the policies regarding shelter resident access/transportation lacked foundation. I found no evidence of a robust and systematic approach to creating policies that would assess whether a homeless shelter would increase crime or public disorder, and if so, what efforts could be recommended to address it.” (Doherty Dec. ¶ 16 [ROA 947].) He further opined that: “It is my opinion that the policymaking process with regard to public safety around the homeless shelters was based on stereotypes and anecdotal accounts, not empirical evidence.” (Id. ¶ 18.)

Thus, there are triable issues of fact as to whether the City had a valid interest in the security policy and the implementation of that policy at the shelter.

“[I]n a disparate impact case, a plaintiff must ‘allege[] and prove[], usually through statistical disparities, that facially neutral [policies] adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are ‘in operation ... functionally equivalent to intentional discrimination.’” (Mahler v. Jud. Council of California (2021) 67 Cal. App. 5th 82, 113 [emphasis added].) The City argues that the claim must fail because Plaintiffs produced no statistical data of disparate impact, but provide no authority requiring statistical data.

Plaintiffs’ expert, Wendy Still, opines that the implementation of the security policy at the La Mesa shelter had a disparate impact on women. (Still Dec. ¶¶ 41-43, 81-83 [“Invasive pat searches are particularly harmful to women with histories of abuse.”].) The City objects to the conclusions drawn by Plaintiffs’ expert, but the court finds that the expert’s opinions are sufficient to raise a triable issue of fact as to whether the security policy and its implementation had a disparate impact on women at the shelter.

The City also seeks summary adjudication of the Fifth Cause of Action for invasion of privacy, on the grounds that Plaintiffs

had no reasonable expectation of privacy with respect to the searches because they allegedly consented to the searches. One of the rules in the La Mesa Shelter Rules states: “Residents must enter through security and submit to security procedures when re-entering the facility.” (Def.’s Evid., Ex. N.) The Illumination Foundation Compliance Contract includes these statements: “I understand staff will perform a detailed search of all belongings upon admission and every time I enter the building after being off-site. I understand there will also be ongoing and random searches of client belongings in the bed areas. I understand a metal detector may be used for these searches as well. I understand that I may be searched at any time during my stay in the program.” (Pltfs.’ Evid., Ex. 12.)

“[T]he plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant.” (Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 26.) “If voluntary consent is present, a defendant's conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Id.) “[A] person can be deemed to consent only to intrusions that are reasonable under the circumstances.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal. 4th 992, 1001.)

Plaintiffs argue that they are forced to consent to La Mesa shelter rules as a condition of access to shelter, a government benefit and an economic necessity, or face threats to their safety or liberty. Plaintiffs also challenge the City’s assertion that they consented to the type of searches that were conducted at the La Mesa shelter. As there are triable issues of fact as to consent, whether the conduct was “highly offensive to a reasonable person,” and whether the intrusion of Plaintiffs’ privacy was reasonable under the circumstances, summary adjudication is not appropriate. Thus, the court denies summary adjudication as to the Fifth Cause of Action on the ground of alleged consent.

The City also seeks summary adjudication of the First, Second, Third and Fifth Causes of Action on the grounds of governmental immunity.

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the

discretion vested in him, whether or not such discretion be abused.” (Cal. Gov't Code § 820.2.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Cal. Gov't Code § 815.2(b).) “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Cal. Gov't Code § 818.2.)

“The immunity afforded by Government Code sections 818.2. . . attaches only to discretionary functions.” (Nunn v. State of California (1984) 35 Cal. 3d 616, 622.) “[I]mmunity attaches to quasi-legislative policy decision-making areas which are sufficiently sensitive to justify blanket immunity,” not to implementation of those policies through “operational” or “street level” decisions. (Id.) The immunity does not apply to “‘lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.’” (Greenwood v. City of Los Angeles (2023) 89 Cal. App. 5th 851, 860.)

As stated above, Plaintiffs do not challenge the security policy itself, but the implementation of the policy at the shelter. Governmental immunity does not apply to the implementation of the City’s security policy.

Further, the immunities under the Government Tort Claims Act do not affect Plaintiffs’ “right to obtain relief other than money or damages against a public entity or public employee.” (Cal. Gov't Code § 814.) Here, Plaintiffs seek a declaratory ruling and an injunction to prevent sexual harassment at other shelters that the City operates, which would not be subject to governmental immunity. (4th Am. Compl. at p. 83 [Relief Requested includes “[t]hat the Court issue a declaration, a writ of mandate, and an injunction prohibiting Defendants from engaging in the unlawful conduct described above.”].)

Based on the foregoing the court denies summary adjudication of these causes of action on the grounds of governmental immunity.

The City seeks summary adjudication of the First, Second, Third and Fifth Causes of Action on the grounds of that it cannot be vicariously liable for the conduct by its contractor IF or its subcontractor PA and their employees.

“A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.” (Cal. Gov't Code § 815.4.)

“An agent is one who represents another, called the principal, in dealing with third persons.” (Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1184 [citing Civ. Code, § 2295)].) “Agency and independent contractorship are not necessarily mutually exclusive legal categories[.]” (Id.) “[A]n agent may also be an independent contractor.” (Id.) “One who contracts to act on behalf of another and subject to the other's control, except with respect to his physical conduct, is both an agent and an independent contractor.” (Id.) “[W]hether an agency relationship has been created or exists is determined by the relation of the parties as they in fact exist by agreement or acts [citation], and the primary right of control is particularly persuasive.” (Id.) “Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the ‘principal’ and ‘agent’ are engaged in distinct occupations; the skill required to perform the ‘agent's’ work; whether the ‘principal’ or ‘agent’ supplies the workplace and tools; the length of time for completion; whether the work is part of the ‘principal's’ regular business; and whether the parties intended to create an agent/principal relationship.” (Id.)

Accordingly, the question of agency is fact-based.

Plaintiffs argue in opposition that IF acted as the City’s agent in providing shelter for unhoused residents at La Mesa. It is undisputed that the City purchased property and constructed the La Mesa shelter, and then contracted with IF to operate the facility, thus providing the “workplace and tools” to IF. Further, the City required that IF implement a security policy outlined by the City. (Lozeau Dec. ¶ 15 [“[T]he Scope of Work required Illumination Foundation to hire a 24/7 licensed security vendor, and implement a security plan that included residents being searched upon entrance.”]; see also Def.’s Evid., Ex.

B [La Mesa Scope of Work].) The City disputes that it had any control over IF or PA’s employees, or that it had any control over when and how IF and/or PA employees performed their jobs. However, the City relies on case law discussing the factors required to establish an employment relationship, not an agency relationship. (Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1179 [holding that there is no employment relationship if a party does not “direct the

manner or means by which [the independent contractor] provided those services.”].) At a minimum, there are triable issues of fact as to whether there was an agency relationship between the City, IF and PA. Accordingly, the court denies summary adjudication of these causes of action. As there are triable issues of fact as to agency, the court declines to reach the other theories of vicarious liability.

In addition, the City seeks summary adjudication of these causes of action as to Plaintiff Cyndi Utzman, arguing that she cannot assert the first three causes of action because she failed to exhaust her administrative remedies. 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).) Thus, the court should denies summary adjudication as to these causes of action on the grounds of administrative exhaustion.

B. Sixth Cause of Action: Sexual Battery; Eighth Cause of Action: Retaliation; Ninth Cause of Action: Retaliation

The City seeks summary adjudication of the Sixth Cause of Action on the grounds that there is no evidence that the City or its employees committed acts of sexual battery. Plaintiffs do not dispute this, as their claim is based on vicarious liability theories for the conduct of IF and PA and their employees. As discussed above, there are triable issues of fact as to whether the City may be vicariously liable for the claims in this action. As the lack of direct liability does not completely dispose of this cause of action, the court denies summary adjudication on this ground. (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.”].)

The City also seeks summary adjudication for the retaliation claims under the Eighth and Ninth Causes of Action on the grounds that Plaintiffs did not suffer from any acts of retaliation.

It is unlawful “[f]or any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the

owner's dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part.” (Cal. Gov't Code § 12955(f).) “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by Section 12955 or 12955.1.” (Cal. Gov't Code § 12955.7.) “‘Adverse action’ means action that harms or has a negative effect on an aggrieved person.” (Cal. Code Regs. tit. 2, § 12005(b).)

Plaintiffs allege that they faced eviction, retaliatory writeups, and increased sexual harassment after they complained about sexual harassment at the shelter. The City argues that the retaliatory conduct of being written up had no material adverse effect on Plaintiffs’ residency at La Mesa, so it is not actionable. The City argues that in the context of employment claims, “an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (McRae v.

Dep't of Corr. & Rehab. (2006) 142 Cal. App. 4th 377, 386 [emphasis added].) However, the City cites to no authority applying this materiality requirement to housing claims.

Further, Plaintiffs provide the Illumination Foundation Discharge Document for Cyndi Utzman for “Non-compliance with terms and conditions outlined in behavioral contract signed on 12-6-2019,” which occurred a month after Ms. Utzman complained about harassment. (Pltfs.’ Evid., Ex. 3.) The City argues that there is no evidence linking the retaliation to Plaintiffs’ complaints. However, Plaintiffs contend that “proximity in time between the protected action and [the] allegedly retaliatory [adverse action]” is sufficient to create an inference of causation between a causal event and the retaliatory adverse action. (Zirpel v. Alki David Prods., Inc. (2023) 93 Cal. App. 5th 563, 578.)

The court finds that there are triable issues of fact as to whether adverse actions were taken against Plaintiffs for complaining about sexual harassment at the shelter. Accordingly, summary adjudication of these retaliation claims on this ground is denied.

The City also raises the argument that there are no grounds for vicarious liability for these causes of action. However, as stated above, Plaintiff has raised triable issues of fact as to vicarious liability. Summary adjudication of these causes of action is also denied as to this ground.

C. Tenth Cause of Action: Due Process; Eleventh Cause of Action: Equal Protection

The City seeks summary adjudication of the Tenth and Eleventh Causes of Action on the grounds that they are moot. These claims only seek declaratory and injunctive relief.

“[M]ootness occurs when a once ripe actual controversy no longer exists due to a change in circumstances.” (Ghost Golf, Inc. v. Newsom (2024) 102 Cal. App. 5th 88, 99.) A claim is moot if the court “cannot grant practical, effective relief.” (Id.) “The legal test for effective relief is whether there is a ‘prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status.’” (Id.) “Declaratory relief is appropriate where there is a justiciable controversy, but not where the dispute is moot, or only hypothetical or academic.” (Id. at 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.)

A claim for relief is moot when the “challenged conduct no longer applie[s] to [a plaintiff],” and “any injunction or declaratory judgment would not impact her.” (Giraldo v. Dep't of Corr. & Rehab. (2008) 168 Cal. App. 4th 231, 257 [challenged housing policy no longer applied to plaintiff on parole when defendant no longer had physical custody of plaintiff].) Under such circumstances, “any ruling on plaintiff's equitable claims would have amounted to an advisory opinion, rendering of which ‘falls within neither the functions nor the jurisdiction of” the court.’” (Id. at 258.)

A court may exercise its discretion to decide an issue that is moot “when the case presents an issue of broad public interest that is likely to recur[.]” (Ghost Golf, Inc., 102 Cal. App. 5th at 101.) The burden is on the party asserting the exception to demonstrate that the facts support the court’s exercise of discretion to consider an otherwise moot claim. (Sturgell v. Dep't of Fish & Wildlife (2019) 43 Cal. App. 5th 35, 46 [declining to exercise its discretion when “appellants have not demonstrated that [an] exception [to mootness] pertains”].)

Courts should “not opine on moot questions or abstract propositions, nor declare principles of law that cannot affect the matter[s] at issue . . .” (Shaw v. Los Angeles Unified Sch. Dist. (2023) 95 Cal. App. 5th 740, 772.) For example, a claim is moot when a plaintiff is seeking to enjoin expired agreements and policies because the court “cannot turn back the clock to offer [plaintiff] a remedy,” making the issue nonjusticiable. (Id. at 777.) Even if a question is of broad public interest, it is not likely to evade review when a plaintiff has a legal remedy, and the remedy is also available to future plaintiffs. (Id.)

“A claim for declaratory relief ‘becomes moot when some event has occurred which ‘deprive[s] the controversy of its life.’’” (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].) “[A] mere physical or theoretical possibility” of recurrence is insufficient to satisfy this exception to mootness. (Murphy v.

Hunt (1982) 455 U.S. 478, 482.) “If this were true, virtually any matter of short duration would be reviewable.” (Id.) Instead, “there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party.” (Id.) As the Ninth Circuit has noted, “the mere power to reenact a challenged [policy] is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists.” (Brach v. Newsom (9th Cir. 2022) 38 F.4th 6, 14.) “Rather, there must be evidence indicating that the challenged [policy] likely will be reenacted.” (Id.)

The City argues that the Tenth and Eleventh Causes of Action are moot because the only shelter that employed the challenged transportation policy (La Mesa) is no longer operational, the policy is not employed at any other City-

funded shelter, and there are no current plans for the City to operate another shelter. Under these circumstances, the court finds that these two causes of action concerning the now defunct policy are moot.

Plaintiffs also argue that the court has already rejected the City’s mootness argument at the demurrer stage, finding that because “defendants’ allegedly wrongful lock-in/shut-out policy is currently being implemented in other shelters, potential future violations of the law are not purely speculative.” (June 21, 2024 Minute Order, ROA 613.) The City argues that, unlike at the demurrer stage, the evidence shows that (1) La Mesa is closed, and (2) no current City shelter employs the same transportation policy as was in place at La Mesa.

Further, the City argues that there is no evidence to suggest that the same policy will be implemented in the future, asserting that the policy was created due to the specific location of the La Mesa shelter. The court agrees with the City that the court is not bound by its decision at the pleading stages, as this Motion seeks summary adjudication of these causes of action, which would include consideration of the merits of the claims and the supporting evidence. Taking into consideration the lack of evidence of the City implementing the challenged policy at other shelters, the court reaches a different conclusion as to the viability of these causes of action.

In supplemental briefing, Plaintiffs argue that the Tenth and Eleventh Causes of Action are not moot because the City is likely to implement unlawful anti-loitering policies at the other shelters. However, Plaintiffs provide no evidence of any unlawful anti-loitering policies by the City. Instead, Plaintiffs point to the fact that the Anaheim Municipal Code requires that Operation Plans for City shelters must have a loitering control policy: “The Operations Plan shall describe the measures the operator will implement to minimize the congregation of clients in the vicinity of the facility.” (Anaheim, Cal. Mun. Code 18.38.125.050; 18.38.125.0505.) There is no reference to these municipal code sections, or allegation of any unlawful anti-loitering policies by the City in the operative complaint that are being challenged as part of the Tenth and Eleventh Causes of Action.

“A plaintiff opposing summary judgment may not raise facts or legal theories not encompassed by his complaint to defeat a summary judgment motion.” (Berlanga v. Univ. of San

Francisco (2024) 100 Cal. App. 5th 75, 87.) Here, the Tenth and Eleventh Causes of Action reference a so-called lockin/shut-out policy, which is defined as the policy which “prohibits residents from entering or leaving the shelters unless they do so by car, taxi, ride-share, or other individual vehicle, or one of the shelters’ shuttles, which only run at limited times,” or alternatively, known as “the prohibition on [residents] leaving or entering the shelter by foot or on bicycle.” (4AC ¶¶ 4, 93, 103, 353, 364.)

Plaintiffs allege in the complaint that “La Mesa prohibited residents from traveling to or from the shelter except by privately owned vehicles or the shelter’s shuttles,” and that Illumination Foundation’s contract with Anaheim specifically provided that residents “may not walk off or on [the] property.” (4AC ¶ 103.) There is no discussion of any anti-loitering policy implemented by a City shelter. The only discussion of anti-loitering policies concern shelters associated with the County, not the City. (4AC ¶¶ 97- 98.)

Accordingly, any issues Plaintiffs have with the City’s alleged anti-loitering policies are outside the scope of this action and cannot be considered for purposes of summary judgment or adjudication.

Plaintiffs also contend that even though the La Mesa shelter is closed, an exception to mootness applies to these claims because Plaintiffs seek declaratory and injunctive relief as to the ongoing and/or future use of the challenged policies in all shelters under the City’s control/operation. However, Plaintiffs fail to meet their burden to demonstrate that the court should exercise its discretion to decide these otherwise moot causes of action. Plaintiffs fail to provide any evidence establishing a reasonable expectation that the transportation policy at issue in the Tenth and Eleventh Causes of Action will be used by the City at any existing or future shelter.

Instead, Plaintiffs rely on the theoretical possibility that the City may be able to reenact the challenged policy at some unspecified shelter at some unknown time in the future. Under these circumstances, the court cannot grant any practical, effective relief, and its rulings on these causes of action would be nothing more than an improper advisory opinion.

Plaintiffs also assert that the claims are not moot because the City has not renounced the challenged policies. However, Plaintiffs cite to a case applying the mootness exception where there was evidence the challenged practice was likely to recur. (Cnty. of Los Angeles Dep't of Pub. Health v. Superior Ct. (2021) 61 Cal. App. 5th 478, 487 [“The County has made it

clear that it may re-impose its prohibition on outdoor dining if the region faces another surge.”].) There is no similar evidence here. 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.

In sum, the potential for a recurrence of the challenged policy is too remote to warrant the exercise of the court’s discretion to decide these moot causes of action. Accordingly, the court grants summary adjudication of the Tenth and Eleventh Causes of Action on the grounds that those causes of action are moot. The court declines to reach the other grounds for dismissal alleged in the motion.

D. Twelfth Cause of Action: Breach of Implied Warranty of Habitability; Thirteenth Cause of Action: Negligence; and Fourteenth Cause of Action: Unlawful Expenditure of Public Funds

The City seeks summary adjudication of the Twelfth Cause of Action on the grounds that there was no lease between Plaintiffs and the City to establish any implied warranty of habitability.

“[T]here is in California a common law implied warranty of habitability in residential leases, and that under this warranty a landlord ‘covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.’” (Knight v. Hallsthammar (1981) 29 Cal. 3d 46, 52.)

Plaintiffs argue that Plaintiffs had compliance contracts with Illumination Foundation that functioned as leases, setting forth their obligations in exchange for residency. (Pltfs.’ Evid., Ex. 12.) However, Plaintiffs provide no authority demonstrating that the compliance contracts constitute a lease. Accordingly, the court grants summary adjudication as to the Twelfth Cause of Action.

The City also seeks summary adjudication of the Thirteenth Cause of Action for negligence on the grounds that none of its employees engaged in negligence and it cannot be held liable

for the conduct of its contractors. As discussed in further detail above, there are triable issues of fact as to whether the City may be held vicariously liable for the conduct of IF and PA and their employees. Thus, summary adjudication as to this argument is denied.

The City also seeks summary adjudication of the Thirteenth Cause of Action for negligence on the grounds that the claim is not based on any mandatory duty. “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Cal. Gov't Code § 815.6.)

The court finds that at least the following statutes asserted by Plaintiffs impose a mandatory duty:

Cal. Civ. Code § 1941 states: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”

Orange County Municipal Code § 7-9-148.8(d)(7) (2013): “Emergency shelter and multi-service center for the homeless (multi-service center) site development standards and operational requirements. . . . One (1) toilet and shower shall be provided for each ten (10) beds. Separate facilities shall be provided for men and women.”

Anaheim Municipal Code §§ 18.38.125.0404-0405, 18.38.125.1101-1102 (2012): “An Emergency Shelter shall comply with all of the following provisions: . . . An Emergency Shelter shall comply with all of the following provisions: A minimum of 1 toilet for every 8 beds per gender. . . A minimum of 1 shower for every 8 beds per gender.”

Accordingly, the court denies summary adjudication of the Thirteenth Cause of Action on the issue of mandatory duty.

The City seeks summary adjudication as to the Fourteenth Cause of Action for unlawful expenditure of public funds, on the grounds that it is moot because the La Mesa facility that

implemented the challenged policies is no longer in operation. As discussed above regarding the Tenth and Eleventh Causes of Action, the court finds that this cause of action which seeks only declaratory and injunctive relief is also moot because there are no policies to enjoin and no judgment that would provide effective relief. Thus, the court grants summary adjudication of the Fourteenth Cause of Action on the grounds of mootness.

Defendant City of Anaheim is ordered to give notice of this ruling.