1 HELLER EHRMAN LLP

2

PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road

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Menlo Park, CA 94025-3506 Telephone: (650) 324-7000

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Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

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OREN SELLSTROM (SBN: 161074) ELISA DELLA-PIANA (SBN: 226462)

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131 Steuart Street, Suite 400 San Francisco, CA 94105

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Telephone: (415) 543-9444 Facsimile: (415) 543-0296

9 E-mail: osellstrom@lccr.com

10

ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER (SBN:49957)

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MICHAEL T. RISHER (SBN:191627) 39 Drumm Street

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San Francisco, CA 94111 Telephone: (415) 621-2493

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Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org

14

15

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

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18

Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy

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Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson, Individually on Behalf of

20

Themselves and All Others Similarly Situated, Plaintiffs,

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v.

22 City of Fresno, Alan Autry, Jerry Dyer, Greg

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Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, and

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Daryl Glenn, individually and in their official capacities; DOES 1-100, inclusive,

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Defendants.

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Civil Action No.: 06-CV-1445-OWW
CLASS ACTION
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
DEMAND FOR JURY TRIAL

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Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna

2 Garcia, Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson

3 individually on behalf of themselves and others similarly situated, complain against

4 defendants as follows:

5

Nature of the Case

6

1. This action arises out of an ongoing policy and practice of defendant City of

7 Fresno, joined in by the remaining defendants, of confiscating and destroying the property

8 of homeless people who live in Fresno. Defendants’ unlawful actions deprive plaintiffs and

9 similarly situated homeless people of personal belongings that are critical to their survival,

10 such as clothing, medication, tents and blankets, as well as of irreplaceable personal

11 possessions, such as family photographs, personal records and documents, and even the

12 ashes of a deceased relative contained in an urn.

13

2. As alleged with more particularity below, defendants regularly engage in what

14 amount to raids of areas where homeless people live, during which defendants intentionally

15 and indiscriminately take and destroy personal property owned by homeless people in the

16 area and immediately destroy that property.

17

3. These ongoing raids are conducted either without notice or with inadequate

18 notice and in a manner that prevents plaintiffs and other homeless persons similarly situated

19 from retrieving their personal property to avoid its destruction. In many cases, members of

20 the plaintiff Class are physically restrained or ordered by members of the Fresno Police

21 Department to stand by while their few personal possessions are seized and destroyed,

22 leaving them even more destitute and defenseless. Further, as a part of this policy and

23 practice, defendants provide no means for plaintiffs or other similarly situated homeless

24 people to claim or retrieve their personal possessions once seized. Rather, all property is

25 immediately and summarily destroyed, so that it is lost forever.

26

4. Plaintiffs, on their own behalf and on behalf of all similarly situated persons

27 in the City of Fresno, California, claim that the intentional taking and destruction of their

Heller 28 personal property constitutes a violation by defendants of plaintiffs’ federal and state
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1 constitutional rights to be free from unreasonable search and seizure and to due process of

2 law, a violation of plaintiffs’ rights under California Civil Code § 2080, et seq. and Civil

3 Code §§ 52 and 52.1, as well as additional state law claims complained of herein. Plaintiffs

4 seek preliminary and permanent injunctive relief on behalf of themselves and other

5 homeless persons similarly situated enjoining defendants from taking and destroying their

6 personal property in violation of their constitutional, statutory and common law rights.

7

5. Plaintiffs further seek a declaratory judgment that the policies and practices of

8 defendants as alleged herein are unlawful under the federal and state constitutional

9 provisions and statutory rights complained of herein.

10

6. In addition to their primary claims on behalf of the class for injunctive and

11 declaratory relief, the plaintiffs seek statutory, actual and punitive damages resulting from

12 defendants’ intentional destruction of their personal property in violation of plaintiffs’

13 constitutional rights, under the United States and California Constitutions, and under

14 California Government Code § 815.6, California Civil Code § 2080 et seq., California Civil

15 Code §§ 52 and 52.1, and the common law doctrine of conversion.

16 Jurisdiction and Venue
17

18

7. This Court has jurisdiction based on 28 U.S.C. § 1331and 1343, and

19 supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

20

8. Venue is proper in this District in that the events and conduct arise to the

21 violations complained of occurred in this District. In addition, the defendants performed

22 their duties and committed the conduct complained of herein within this District.

23 Parties
24

25

9. Plaintiff Pamela Kincaid is a resident of the City of Fresno and at all relevant

26 times herein was and now is homeless.

27

10. Plaintiff Doug Deatherage is a resident of the City of Fresno and at all

Heller 28 relevant times herein was and now is homeless.
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1

11. Plaintiff Charlene Clay is a resident of the City of Fresno and at all relevant

2 times herein was homeless, but has since obtained permanent housing.

3

12. Plaintiff Cynthia Greene is a resident of the City of Fresno and at all relevant

4 times herein was and now is homeless.

5

13. Plaintiff Joanna Garcia is a resident of the City of Fresno and at all relevant

6 times herein was and now is homeless.

7

14. Plaintiff Randy Johnson is a resident of the City of Fresno and at all relevant

8 times herein was and now is homeless.

9

15. Plaintiff Sandra Thomas is a resident of the City of Fresno and at all relevant

10 times herein was and now is homeless.

11

16. Plaintiff Alphonso Williams is a resident of the City of Fresno and at all

12 relevant times herein was and now is homeless.

13

17. Plaintiff Jeannine Nelson is a resident of the City of Fresno and at all

14 relevant times herein was homeless, but has since obtained permanent housing.

15

18. Defendant City of Fresno (“Fresno”) is a municipal corporation, duly

16 organized and existing under the laws of the State of California.

17

19. Defendant Alan Autry is the Mayor of the City of Fresno and has either

18 directed or ratified the unlawful conduct alleged herein.

19

20. Defendant Jerry Dyer is Chief of the Fresno Police Department, and in that

20 capacity is responsible for the operations of the Police Department.

21

21. Defendant Greg Garner is a Captain of the Fresno Police Department and has

22 personally directed and taken part in the unlawful practices and polices alleged in this

23 complaint.

24

22. Defendant Reynaud Wallace is an officer of the Fresno Police Department

25 and has personally directed and taken part in the unlawful practices and policies alleged in

26 this complaint.

27

23. Defendant John Rogers is the Manager of the Community Sanitation

Heller 28 Division of the City of Fresno and in that capacity is responsible for the operations of the
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1 Community Sanitation Division.

2

24. Defendant Phillip Weathers is an employee of the Community Sanitation

3 Division of the City of Fresno and has personally directed and taken part in the unlawful

4 practices and policies alleged in this complaint.

5

25. Defendant Will Kempton is the Director of the California Department of

6 Transportation (“Caltrans”), and in that capacity is responsible for the enforcement,

7 operation and execution of all duties vested by law in that agency.

8

26. Defendant James Province is a Caltrans employee and is the Caltrans

9 Superintendent for the Fresno area.

10

27. Defendant Daryl Glenn is a Caltrans employee who directs Caltrans’ Special

11 Programs People program in the Fresno area.

12

28. All of the above individual defendants are sued in their individual and

13 official capacities, except defendant Kempton who is sued only in his official capacity and

14 only for violations of federal law.

15

29. Plaintiffs are informed and believe that DOES 1 through 50 at all relevant

16 times herein were officers and employees of the City of Fresno, including the Fresno Police

17 Department and the Community Sanitation Division of the City of Fresno, and that DOES

18 51 through 100 were officers and employees of Caltrans. Plaintiffs are ignorant of the true

19 names and capacities of defendants sued herein as DOES 1 through 100 and therefore sue

20 said defendants by such fictitious names. Plaintiffs will amend this complaint to allege their

21 true names and capacities when ascertained. Plaintiffs are informed and believe that each of

22 the DOE defendants is liable for, and proximately caused, the injuries and violations of

23 constitutional and statutory rights complained of herein. Plaintiffs will ask leave to amend

24 this complaint to insert further charging allegations when such facts are ascertained.

25

30. Plaintiffs are informed and believe that the acts of defendants complained of

26 herein were undertaken in the execution of customs, policies and practices of authorized

27 policymakers of the defendant City of Fresno and were joined in and/or implemented by the

Heller 28 remaining defendants, and each of them, acting as the agent, servant, employee and/or in
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1 concert, and/or in conspiracy with each of said other defendants. Each of the defendants

2 caused, and is liable for, the unconstitutional and unlawful conduct and resulting injuries by,

3 among other things, personally participating in said conduct or acting jointly or conspiring

4 with others who did so; by authorizing, acquiescing or setting in motion policies, plans and

5 actions that led to the unlawful conduct; by failing to take action to prevent the unlawful

6 conduct; by failing and refusing with deliberate indifference to maintain adequate training

7 and supervision; and by ratifying the unlawful conduct taken by employees under their

8 direction and control, including failing to take remedial and disciplinary action.

9

31. The acts complained of herein were intentionally and jointly committed, and

10 will continue to be committed jointly and systematically by defendants unless restrained by

11 this Court.

12 Class Allegations
13

14

32. The claims set forth hereinafter are brought by plaintiffs on their own behalf

15 and as representatives of a Class of similarly situated persons pursuant to Rules 23(a),

16 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of all homeless

17 persons in the City of Fresno whose personal belongings have been or will be taken and

18 destroyed by one or more of the defendants.

19

33. The members of the Class are so numerous that individual joinder of all

20 members is impossible. Plaintiffs are informed and believe on that basis allege that the

21 members of the Class well exceed 100 in number.

22

34. There are common questions of law and fact that predominate over any

23 questions affecting only individual Class members. Among the common questions of law

24 and fact are the following:

25

a. Whether defendants’ policies, practices and conduct of taking and

26 destroying the personal property of homeless people, without providing either adequate

27 notice or the opportunity to retrieve personal possessions before they are destroyed, and

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1 without a legitimate governmental interest, violated and continues to violate the class

2 members’ state and federal constitutional rights against unreasonable search and seizure;

3

b. Whether defendants’ policies, practices and conduct of taking and

4 destroying the personal property of homeless people, without providing either adequate

5 notice or the opportunity to retrieve personal possessions before they are destroyed, violated

6 and continues to violate the class members’ due process rights under the California and

7 United States Constitutions;

8

c. Whether defendants’ conduct of taking and destroying the personal

9 property of homeless people, without providing either adequate notice or the opportunity to

10 retrieve personal possessions before they were destroyed, and without a reasonable basis or

11 legitimate governmental interest, violated and continues to violate class members rights

12 under California Civil Code §§ 52 and 52.1, Civil Code § 2080, California Government

13 Code § 815.6 and the common law tort of conversion; and

14

d. Whether injunctive relief restraining further unconstitutional and unlawful

15 acts by defendants should be ordered by the Court and, if so, the nature of that injunctive

16 relief.

17

35. Plaintiffs will fairly and adequately protect the interests of the Class. They

18 have retained counsel who are experienced and competent in class-action and civil rights

19 litigation. Plaintiffs have no interests that are adverse or antagonistic to interests of other

20 members of the Class.

21

36. A class action is superior to any other method in order to secure a fair and

22 efficient adjudication of this controversy. As the primary relief sought is injunctive in

23 nature, the burden and expense make in impractical for class members to seek redress

24 individually for the wrongs done to them. The nature and amount of monetary damages

25 sustained by each Class member is very similar in nature and may be established by

26 common proof. Individual litigation by each class member would necessarily and

27 substantially burden the operation of the judicial system.

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1

Factual Allegations

2

37. Between 4,400 to 8,800 of Fresno’s approximately 440,000 residents are

3 homeless, according to a recent report by a consortium of local government agencies and

4 providers. (Fresno Madera Continuum of Care Plan To End Homelessness at 10-11,

5 attached as Exhibit A hereto.) However, services for low-income people in need of shelter

6 are extremely scarce. “[O]nly 1.4% of the homeless population [is] sheltered . . . leaving

7 more than 98% of the homeless population unsheltered and receiving no services.” (Id. at

8 13.) The report indicates that there is currently an “overwhelming need for homeless

9 assistances,” with a gap of approximately 7,000 shelter/housing spaces in the Fresno-

10 Madera area. (Id.) The lack of shelter for women is particularly acute. Naomi House, one

11 of the few shelters in Fresno for women, has capacity for only 25 women on any given

12 night. On information and belief, a lottery is held every day to choose which women will

13 be allowed to stay in the shelter on that night. Those who are not successful in this lottery

14 are turned away, and often end up staying on the streets nearby.

15

38. For more than a year, defendants have engaged in an ongoing and continuing

16 policy and practice of raids on those Fresno residents who are unsheltered, in which they

17 take and destroy the personal property of these individuals. Defendants have intensified this

18 ongoing practice since May, 2006. No legitimate or lawful basis exists for this wholesale

19 confiscation and destruction of the personal property of plaintiffs and the plaintiff Class.

20 None of these actions were authorized by a warrant. In many cases, the property the

21 defendants have taken and destroyed represents substantially all the possessions of these

22 homeless men and women.

23

39. On or about May 3, 2006, defendants raided several areas in Fresno where

24 they knew a significant number of plaintiffs and members of the plaintiff Class resided,

25 including an area on the west side of E Street near Santa Clara Avenue, abutting Highway

26 99. On information and belief, this area is owned and controlled by defendant Caltrans. In

27 this raid, Fresno employees used a bulldozer to destroy and dispose of all the personal

Heller 28 property of plaintiffs in their path. Plaintiffs had no adequate notice that defendants would
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1 destroy their property. Defendants made no attempt to save items that belonged to people,

2 and in fact restrained efforts by homeless people to retrieve their personal property in order

3 to prevent it from being taken and destroyed. Nor did defendants make any provisions for

4 people to claim their property after it had been seized. Rather all plaintiffs’ property that

5 was seized was summarily destroyed.

6

40. On or about May 25, 2006, defendants returned to conduct a further raid on

7 areas that had previously been raided, including the area of E Street abutting Highway 99.

8 Acting at the direction of and pursuant to the policy of the City of Fresno, City of Fresno

9 employees systematically took and destroyed all of the personal property of plaintiffs and

10 members of the plaintiff Class that they could find. Using a large bulldozer with a

11 mechanical “grabber” on the front, defendants dumped all of the personal property of

12 members of the plaintiff Class into a waiting garbage truck for immediate destruction, even

13 though it was obvious that much of what they were taking and destroying was personal

14 property owned by members of the plaintiff Class.

15

41. On or about June 22, 2006, defendants again confiscated and destroyed the

16 personal property of members of the plaintiff Class. In this raid, defendants seized and

17 destroyed property not only on the west side of E Street near Santa Clara Avenue, but also

18 in adjacent areas. As with the previous raids, representatives of the Fresno Police

19 Department acting at the direction and pursuant to the policy of the City of Fresno,

20 prevented homeless people, including members of the plaintiff Class, from retrieving their

21 personal possessions and made no attempts to save personal belongings from destruction or

22 to store them so that they could be claimed later by their owners. The week before this raid,

23 on or about June 15, 2006, the Fresno Police Department issued a memorandum addressed

24 to "All Campers on Ventura/E" stating that "On Thursday, June 22, 2006 we will be coming

25 through this area to do a clean up of Ventura, "E", Santa Clara & "G." streets. We will start

26 at 8:00 a.m. If you have property in these areas, please remove it or we will take it as

27 trash." This notice was inadequate to provide meaningful and effective notice to those who

Heller 28 would be affected by defendants’ unlawful conduct, both because of the manner in which it
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1 was given and because defendants knew or should have known that many members of the

2 plaintiff Class would not receive the notice or understand that their personal possessions

3 were going to be taken and destroyed by defendants. Moreover, the defendants began their

4 systematic destruction of the personal property of plaintiffs and the plaintiff Class before

5 8:00 a.m., making the notice further inadequate and misleading. Defendants also continued

6 with their policy of destroying property even while it was being claimed by the owners.

7

42. On or about July 1, 2006, defendants continued their unlawful seizures of the

8 property of plaintiffs and members of the plaintiff class. Early in the morning on July 1,

9 2006, members of the Fresno Police Department, complete with squad cars, a paddy wagon,

10 and a flatbed truck arrived near the intersection of E Street and Santa Clara Avenue and

11 began seizing property in multiple areas in the vicinity. Fresno Police Department

12 representatives unlawfully and without cause or basis confiscated shopping carts that were

13 the property of the homeless, including members of the plaintiff Class, loaded the carts onto

14 the flatbed truck and hauled them away and disposed of them. At no time did defendants,

15 or any of them, make an effort to determine the ownership of the carts or their contents, or

16 to allow plaintiffs or members of the plaintiffs’ Class to make a claim for the return of their

17 personal possessions.

18

43. On or about August 26, 2006, defendants again returned to the area near E

19 Street and Santa Clara Avenue in Fresno and repeated the systematic confiscation of the

20 property of plaintiffs and members of the plaintiff Class. City of Fresno employees again

21 systematically confiscated all of the personal property of plaintiffs and/or members of

22 plaintiff Class that they could locate and again threw it into City of Fresno garbage trucks

23 for destruction. Defendant made no attempt to save valuable personal possessions but

24 rather again seized and immediately destroyed all of the property of plaintiffs and/or

25 members of the plaintiff Class. Defendants again continued their practice of destroying all

26 the property they found regardless of the fact that it was being claimed by its owners.

27 Defendants again made no provision of any kind to allow plaintiffs and/or members of the

Heller 28 plaintiff Class to claim or retrieve their property.
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44. Early in the morning on or about October 8, 2006, members of the Fresno

2 Police Department came to an area near H Street and San Benito where plaintiffs and/or

3 members of the plaintiff Class were found. The Fresno Police Officers, without cause or

4 basis, confiscated all of the shopping carts possessed by plaintiffs and members of the

5 plaintiff Class and took them away for destruction. The Fresno Police Officers dumped all

6 the contents of all the shopping carts onto the ground resulting in damage to that property.

7 Plaintiffs’ shopping carts were not stolen and no legal basis existed to confiscate them. No

8 provision was made for plaintiffs or members of the plaintiff Class to retrieve their carts,

9 which are essential to their ability to move their property from one place to another.

10

45. Early in the morning on or about October 11, 2006, members of the Fresno

11 Police Department returned to the area near H Street and San Benito Street in the City of

12 Fresno where several homeless people were found. These Police Officers forced all of the

13 homeless in this area to get out of their tents and to stand in lines while they were searched,

14 despite the fact that there was no basis for this search and treatment. A Fresno Police

15 Officer then stated to all present that they intended to return very soon to again take and

16 destroy any property of the homeless found in that area and that the Police and other

17 defendants would “do what I have to do to get you guys out of here.”

18

46. Some of the raids conducted pursuant to Fresno’s unconstitutional policy

19 were conducted on property belonging to Caltrans. On information and belief, officials and

20 employees of Caltrans were notified in advance by Fresno of these raids, including but not

21 limited to the operations on June 22, 2006 and August 26, 2006, and acquiesced in, and

22 ratified, these raids by their acts and failures to act, including but not limited to granting

23 permission for Fresno to conduct these clean-up operations, with knowledge of the unlawful

24 and unconstitutional conduct by City officials in seizing and destroying the property of the

25 homeless during these raids on Caltrans property.

26

47. Such acts and omissions include but are not limited to the following: On

27 June 16, 2006, defendant Wallace of the Fresno Police Department sent an email to

Heller 28 defendant Glenn of Caltrans stating that Fresno would be conducting a “clean-up” operation
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1 at Ventura and E St. on June 22 2006. Attached to the email was a memorandum from

2 defendant Capt. Garner of the Fresno Police Department to “All Campers on Ventura/E,”

3 which stated that any property not removed from the area “we will take as trash.” This

4 email was forwarded to the Caltrans Fresno Area Superintendent, defendant Province. As

5 described below, the City did conduct an operation on Caltrans property on June 22, 2006,

6 and property of the homeless was unlawfully seized and destroyed. On June 23, 2006,

7 defendant Wallace sent another email to defendant Glenn, requesting a meeting with him or

8 his supervisor “to discuss a long term fix for the campers @ Ventura/E. as you know as

9 soon as we clean they come right back… our hands are somewhat tied being that it is Cal

10 Trans property and it’s a real eyesore for anyone entering the city from 99.” On August 25,

11 2006, Caltrans issued an encroachment permit which authorized the City to conduct a

12 cleanup operation and to construct a fence at the same location. As described above, the

13 City acted the following day pursuant to this permit and conducted a cleanup operation on

14 August 26, 2006, during which the property of the homeless was unlawfully seized and

15 destroyed. On information and belief, in addition to the property that was the subject of the

16 August 26, 2006 operation, Caltrans owns other property in the City of Fresno on which

17 homeless people live and/or keep their belongings.

18

48. Plaintiffs and members of the plaintiff Class have suffered the loss of

19 property, damage and treatment described in the foregoing paragraphs on one or more

20 occasions set forth above.

21

49. Plaintiff Pamela Kincaid’s personal property has been confiscated and

22 destroyed by Defendants on at least two occasions. Approximately one year ago, almost all

23 of her possessions were seized and destroyed in one of defendants’ raids, including her

24 identification; her birth certificate; her telephone/address book; and family photos, which

25 contained the only pictures she had of her sister, her daughter, and her deceased mother.

26 Approximately 2 months ago, defendants seized her shopping cart, a toolbox, and various

27 tools that she used to make crafts, such as jewelry and “dreamcatchers,” which she was able

Heller 28 to sell to make a little income. This property was not abandoned and it was obviously
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1 valuable property. She was given no opportunity to save or retrieve her property.

2

50. Plaintiff Doug Deatherage’s personal property has been confiscated and

3 destroyed by Defendants on at least two occasions. On or around June 22, 2006, he and his

4 girlfriend had a tent on a strip of land between E Street and the highway in Fresno.

5 Defendants arrived and began putting items in a dump truck, so plaintiff Deatherage moved

6 his and his girlfriend’s belongings to the other side of the street. Believing that his property

7 would be safe there because a police officer had told them it was okay to move their

8 belongings to that side of the street, plaintiff Deatherage left his girlfriend with their

9 belongings and went to the store. When he returned, their property had been confiscated,

10 and all attempts to move it again or save it had been summarily denied by the Fresno police.

11 In this raid, most of plaintiff Deatherage’s property was destroyed, including his tent; his

12 sleeping bag; all the clothes except the ones he was wearing at the time; shoes; a coat;

13 personal hygiene supplies; an antique stamp collection; and personal papers, including

14 letters from his family. On or about August 26, 2006, defendants confiscated and destroyed

15 nearly all of his remaining possessions in the same area, including clothes and shoes that he

16 had been able to acquire since the previous raid. Again, plaintiff Deatherage was given no

17 opportunity to save or retrieve his personal property.

18

51. Plaintiff Charlene Clay’s personal property has been seized and destroyed by

19 defendants on at least two occasions. Sometime during the first two weeks of April 2006,

20 she and her husband were staying on a hill off of G Street in Fresno. While they were at the

21 Poverello House, a local service provider, they heard that the City was taking people’s

22 property. Plaintiff Clay went as fast as she could to where she had left her belongings, but

23 when she arrived, almost everything she owned had already been seized, including: her

24 false teeth; her medications; a small TV and laptop computer; a bike; dog food; blankets

25 and sleeping bags; and her and her husband’s clothes and personal papers. Again on

26 October 8, 2006, she and her husband were under a bridge at San Benito and H Street.

27 Fresno police officers arrived without warning and confiscated homeless people’s shopping

Heller 28 carts and took them away.
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1

52. Plaintiff Cynthia Greene has had some or all of her belongings seized by

2 Defendants approximately five times since January 2006. Property of plaintiff Greene’s

3 that Defendants have confiscated include: photographs of her deceased relatives (her father,

4 mother, and brother); bicycles; tent and bedding; and winter gear such as rain suits and an

5 umbrella, resulting in her getting sick as a result of being out in the rain without any shelter.

6 In the last such raid, on or about August 27, 2006, defendants confiscated plaintiff Greene’s

7 belongings with a bulldozer truck, even as she and other homeless women were trying to

8 move their belongings. In this raid, the Fresno employees destroyed her property including

9 medication; her tent and blankets; her personal papers and identification; and her backpack.

10

53. Plaintiff Joanna Garcia has had her personal property confiscated and

11 destroyed by defendants on approximately five occasions since January 2006. The property

12 destroyed in these raids include: tents; blankets; personal papers; clothing; photographs of

13 her grandmother and her son; and a lock of her son’s hair. In the most recent raid, on or

14 about August 27, 2006, Fresno police officers seized and destroyed her property in the E

15 Street area, even as she was attempting to move it to save it from destruction. Items seized

16 and destroyed by defendants in this raid included: medication, including inhalers for asthma

17 and antibiotics; food; tents and sleeping bags.

18

54. Plaintiff Randy Johnson, Sr. had his personal property confiscated by

19 defendants in April 2006. During this raid, Fresno city employees seized and destroyed his

20 shopping cart, which had in it such items as: blood pressure medication; clothing; blankets;

21 and family photographs.

22

55. Plaintiff Sandra Thomas had her personal property confiscated and destroyed

23 by defendants in the E Street area on June 26, 2006. Despite making substantial efforts to

24 save her property by moving it across the street and obtaining permission from a private

25 property owner and Defendant Wallace to store her property while she recycled and ate

26 breakfast, defendants destroyed all of her property except one cart which was saved by a

27 bystander over Defendant Wallace’s protests. The property destroyed includes: shelter

Heller 28 items; backpack; drivers license; social security identification card and her grandmother’s
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1 wedding band. That night Ms. Thomas was forced to sleep on the street due to lack of

2 shelter, which resulted in her contracting pneumonia.

3

56. Plaintiff Alphonso Williams had his personal property confiscated and

4 destroyed by defendants on at least two occasions. In the fall of 2005, while Mr. Williams

5 attempted to comply with their direction that he move his property, Fresno city workers

6 destroyed all of his property including shelter; blankets; medication; wedding photos;

7 family portraits and his wife’s wheelchair. In August of 2006, Fresno city workers

8 destroyed all of Mr. Williams’ property again and threatened him with tasers when he

9 attempted to reclaim his property.

10

57. Plaintiff Jeannine Nelson had her personal property confiscated and

11 destroyed by defendants on at least two occasions. In March of 2006, City of Fresno police

12 officers gave her ten minutes to move all of her property before they forced her to throw

13 away the property that she was not able to transport. Ms. Nelson lost pillows, blankets,

14 clothing, jackets, food, shoes and paperwork. In June of 2006, a City of Fresno police

15 officer pushed Ms. Nelson’s cart into an irrigation canal of rushing water, despite her

16 possession of written permission from the private property owner of the land upon which

17 she occupied. The property destroyed includes: her cart; birth certificates; medical files

18 with which she applied for social security disability; identification card; clothing; toiletries;

19 bedding; food; asthma medications and a nebulizer machine which she used to help her

20 breathe.

21

Requisites for Relief

22

58. Defendants’ policies, actions and conduct have resulted and will result in

23 irreparable injury to plaintiffs. Plaintiffs have no plain, adequate or complete remedy at law

24 to address the wrongs described herein. Defendants have made it plain by their actions, the

25 ongoing nature of their activities, and their public statements that they intend to continue the

26 unlawful conduct described above. Defendant City of Fresno has a policy and practice of

27 confiscating and destroying the personal property of plaintiffs and members of the plaintiff

Heller 28 class without legal basis and the remaining defendants have and will continue to participate
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1 in implementing this policy and practice unless and until restrained by an injunctive decree

2 of this Court.

3

59. The acts of defendants as alleged above constituted violations of established

4 constitutional rights of plaintiffs, and defendants could not reasonably have thought that

5 their conduct in intentionally seizing and immediately destroying all of plaintiffs’ personal

6 property as alleged herein was consistent with plaintiffs’ constitutional rights.

7

60. An actual controversy exists between plaintiffs and defendants in that

8 defendants have engaged in the unlawful and unconstitutional conduct as alleged herein and

9 intend to continue this unlawful conduct as an ongoing practice and policy of Fresno

10 whereas plaintiffs claim that these practices are unlawful and unconstitutional and therefore

11 seek a declaration of rights with respect to this controversy.

12

61. As a direct and proximate result of the unconstitutional and unlawful

13 policies, practices and conduct of defendants, plaintiffs and members of the plaintiff class

14 have suffered, and will continue to suffer damages, including but not limited to deprivation

15 and destruction of property, including clothing, bedding, medication, personal documents

16 and other personal possession, leaving them without their essential personal belongings

17 necessary for shelter, health, well-being and personal dignity.

18

62. The acts of defendants were willful, wanton, malicious, and oppressive and

19 done with conscious disregard and deliberate indifference for plaintiffs and their rights.

20

63. Plaintiffs have filed administrative claims with the City of Fresno pursuant

21 to California Government Code § 910 et seq.

22

First Claim for Relief

(Denial of Constitutional Right Against Unreasonable Search and Seizure- Fourth

23

Amendment)

24

25

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27

Heller

28

Ehrman LLP

64. Plaintiffs reallege and incorporate here paragraphs 1 through 55 above, as though fully set forth.
65. Defendants’ above-described policies, practices and conduct violate plaintiffs’ right to be free from unreasonable searches and seizures under the Fourth

16

1 Amendment to the United States Constitutional and 42 U.S.C. § 1983.

2

Second Claim for Relief

(Denial of Constitutional Right to Due Process of Law- Fourteenth Amendment) 3

66. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

4

though fully set forth.

5

67. Defendants’ above-described policies, practices and conduct violate

6

plaintiffs’ right to due process of law under the Fourteenth Amendment of the United States

7

Constitution and 42 U.S.C. § 1983.

8

Third Claim for Relief

9

(Denial of Constitutional Right to Equal Protection of the Laws – Fourteenth

10

Amendment)

11

68. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

12 though fully set forth.

13

69. Defendants’ above-described policies, practices and conduct are intended

14 and designed to single out homeless people and have the purpose and effect of depriving

15 homeless people of their property and of driving homeless people from the City of Fresno.

16 These policies and actions are based on defendants’ animus towards this disfavored group

17 and lacks a rational relationship to any legitimate governmental interest. In adopting and

18 implementing these policies and practices with the intent to harm and disadvantage

19 homeless persons in the City of Fresno, the defendants have violated the Equal Protection

20 Clause of the United States Constitution and 42 U.S.C. § 1983.

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Heller

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Ehrman LLP

Fourth Claim for Relief (Denial of Constitutional Right Against Unreasonable Search and Seizure -
California Constitution, Article 1, § 13) 70. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as
though fully set forth.
71. Defendants’ above-described policies, practices and conduct violated
plaintiffs’ right to be free from unreasonable searches and seizures under Article 1, § 13 of
the California Constitution.

17

1

Fifth Claim for Relief

2

(Denial of Constitutional Right to Due Process of Law- California Constitution, , Article 1, § 7(A))

3

72. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

4 though fully set forth.

5

73. Defendants’ above-described policies, practices and conduct violate

6 plaintiffs’ right to due process of law under Article 1, § 7(A) of the California Constitution.

7

8

Sixth Claim for Relief

(Denial of Constitutional Right to Equal Protection of the Laws – California

9

Constitution, Article 1, § 7(A))

10

74. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

11 though fully set forth.

12

75. Defendants’ above-described policies, practices and conduct were and are

13 intended and designed to single out homeless people and have the purpose and effect of

14 depriving homeless people of their property and of driving homeless people from the City

15 of Fresno. These policies and actions are based on defendants’ animus towards this

16 disfavored group and lacks a rational relationship to any legitimate state interest. In

17 adopting and implementing these policies and practices with the intent to harm and

18 disadvantage homeless persons in the City of Fresno, the defendants have violated the Equal

19 Protection Clause of the California Constitution, Article 1, § 7(A).

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Heller

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Ehrman LLP

Seventh Claim for Relief (California Civil Code § 2080 et seq. and Government Code § 815.6) 76. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as though fully set forth. 77. Defendants’ above-described policies, practices and conduct violated California Civil Code § 2080 et seq., in that, among other things, defendants have failed to safeguard the personal property of plaintiffs and members of the plaintiff Class found on public land, failed to inform the owners of the personal property within a reasonable time of finding this property, failed to document the property found, and failed to make restitution

18

1 of the property to its owners or to make arrangements to permit them to retrieve it all of

2 which are mandatory duties under Code of Civil Procedure § 2080 for which defendants are

3 liable and defendant public entities are liable under Government Code § 815.6.

4

Eighth Claim for Relief

(California Civil Code § 52.1) 5

78. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

6

though fully set forth.

7

79. Defendants’ above-described policies, practices and conduct constitute

8

interference, and attempted interference, by threats, intimidation and coercion, with

9

plaintiffs’ exercise and enjoyment of rights secured the Constitutions and laws of the United

10

States and California, in violation of California Civil Code § 52.1.

11

Ninth Claim for Relief

12

(Common Law Conversion)

13

80. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

14 though fully set forth.

15

81. Plaintiffs were at all relevant times the owners of personal property

16 confiscated and destroyed by defendants as alleged above. Plaintiffs remain entitled to the

17 possession of their personal property. The personal property confiscated and destroyed by

18 defendants included tents, clothing, medication, medical devices, prescriptions, personal

19 items and documents, all of which were particularly valuable to plaintiffs in part because

20 these belongings amounted to much if not all of the relatively few possessions that plaintiffs

21 owned.

22

82. Defendants’ above-described policies, practices and conduct denied

23 plaintiffs the possession of their property and constituted an unlawful conversion of that

24 property to the possession and control of defendants. Defendants have since refused to

25 return this personal property to plaintiffs, but instead have destroyed this property.

26

27

Heller

28

Ehrman LLP

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Prayer for Relief WHEREFORE, plaintiffs seek relief from this Court the as follows:
1. For an order certifying the proposed plaintiff class, together with any necessary and appropriate subclasses under Federal Rule of Civil Procedure 23;
2. For a temporary restraining order, preliminary injunction and permanent injunction, enjoining and restraining defendants from continuing or repeating the unlawful policies, practices and conduct complained of herein;
3. For a declaratory judgment that defendants’ policies, practices and conduct as alleged herein were in violation of plaintiffs’ rights under the United States Constitution, the California Constitution, the laws of the United States and the laws of California;
4. For the return of plaintiffs’ property; 5. For damages in amount according to proof but in no event less than $4,000
per incident under California Civil Code §§ 52 and 52.1 and Cal. Government § 815.6; 6. For punitive and exemplary damages to be determined in accordance with proof; 7. For attorneys fees as provided by law; 8. For costs of suit; and 9. For such other and further relief as the Court may deem just and proper.
20

1 February 22, 2007
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Respectfully submitted, HELLER EHRMAN LLP LAWYERS’ COMMITTEE FOR CIVIL RIGHTS ACLU FOUNDATION OF NORTHERN CALIFORNIA By /s/ Paul Alexander
Paul Alexander Attorneys for Plaintiffs
21

 
 Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 1 of 88

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

9 PAMELA KINCAID, DOUG DEATHERAGE, )

CHARLENE CLAY, CYNTHIA GREENE, )

10 JOANNA GARCIA, AND RANDY

)

JOHNSON, INDIVIDUALLY ON BEHALF )

11 OF THEMSELVES AND ALL OTHERS

)

SIMILARLY SITUATED,

)

12

)

Plaintiffs,

)

13

)

v.

)

14

)

CITY OF FRESNO, CALIFORNIA

)

15 DEPARTMENT OF TRANSPORTATION, )

ALAN AUTRY, JERRY DYER, GREG

)

16 GARNER, REYNAUD WALLACE, JOHN )

ROGERS, PHILLIP WEATHERS AND

)

17 WILL KEMPTON, INDIVIDUALLY AND )

IN THEIR OFFICIAL CAPACITIES; )

18 DOES 1-100, INCLUSIVE,

)

)

19

Defendants.

)

)

20

)

1:06-cv-1445 OWW SMS
STATEMENT OF DECISION AND FINDINGS RE: PLAINTIFFS’ APPLICATION FOR A PRELIMINARY INJUNCTION

21

22

Plaintiffs’ application for a Preliminary Injunction came on

23 for hearing before the court on November 7, 16, 17, and 22, 2006

24 at 9:00 a.m. in Courtroom 3 of the above-captioned Court, the

25 Honorable Oliver W. Wanger presiding. Plaintiffs were

26 represented by Paul Alexander, Esq. of Heller Ehrman LLP; Oren

27 Sellstrom, Esq. of The Lawyer’s Committee for Civil Rights; and

28 by Michael T. Risher, Esq. of the ACLU Foundation of Northern

1

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 2 of 88

1 California.

2

Defendant City of Fresno was represented by James B. Betts,

3 Esq. of Betts & Wright. The matter was submitted on Plaintiffs’

4 Motion, testimony of witnesses, exhibits received into evidence,

5 supporting and opposing Points and Authorities, accompanying

6 Declarations under Penalty of Perjury for both sides as well as

7 the oral arguments of counsel. After fully considering all

8 submissions and evidence in support of and opposition to the

9 motion and the arguments of counsel, the Court enters the

10 following Findings of Fact and Conclusions of Law.

11

12

I. BACKGROUND

13

Plaintiffs seek an injunction to prevent the City of Fresno

14 from immediately seizing and destroying on the spot, their

15 personal possessions, during sweeps conducted by the City of

16 Fresno Police Department and City of Fresno Sanitation Department

17 to remove homeless persons, encampments, and their property from

18 private property and other locations within the City of Fresno.

19 The City of Fresno opposes the imposition of any injunctive

20 relief asserting: (1) the homeless do not need to be present on

21 private or other property within the City of Fresno because there

22 is adequate bed space for the homeless in the City of Fresno; (2)

23 temporary shelters and congregations of homeless individuals

24 create a risk to the public health and safety and generate

25 significant complaints from surrounding residents, business and

26 property owners; (3) the City provides sufficient “advance oral

27 and sometimes written notice,” ranging from one to five days, to

28 the homeless in the area, that the residents of the temporary

2

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 3 of 88

1 shelters must move, and that any unclaimed property will be

2 discarded; (4) that the City of Fresno is without funds or other

3 resources to deal with the property of the homeless, except to

4 immediately destroy it and cannot otherwise make such property

5 available for reclamation; (5) that there are no trained City

6 personnel available to deal with the property of the homeless

7 which includes dangerous items such as syringes with needles and

8 human waste; and (6) the City does not have the funds or other

9 resources to transport and store property of the homeless.

10

11 A. The Complaint

12

The following events form the basis for the complaint:

13

1. May 3, 2006. Defendants confiscated and destroyed the

14 property of the homeless living on the west side of E Street,

15 Broadway Street and H Street, Van Ness Street and Los Angeles

16 Street, and Santa Fe Street and Ventura Street.

17

2. May 25, 2006. Defendants confiscated and destroyed the

18 property of the homeless living on the west side of E Street.

19

3. June 22, 2006. Defendants confiscated and destroyed

20 the possessions of the homeless, this time on both sides of E

21 Street and Santa Clara Street.

22

4. July 1, 2006. Defendants confiscated and destroyed the

23 property of the homeless living on the west side of E Street.

24

5. August 26, 2006. Defendants confiscated and destroyed

25 the property of the homeless living on E Street, this time on

26 both sides of the street.

27

6. October 8, 2006. Fresno police officers came to an

28 area near H and San Benito streets where several homeless people

3

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 4 of 88

1 were found. Some of these homeless people had shopping carts

2 that were their own property and essential for them to move their

3 property. The police dumped the possessions onto the ground,

4 confiscated all of the shopping carts (even though there was no

5 lawful basis to do so) and took them away, apparently for

6 destruction.

7

7. October 11, 2006. Fresno police officers confronted a

8 group of homeless people in the area of H and San Benito Streets,

9 forced them to stand in lines for an extended time period and

10 specifically threatened them with a “formal warning” that the

11 police intended to return very soon (though they refused to say

12 exactly when) to destroy everything homeless people owned in this

13 area.

14

15 B. Plaintiffs’ Claims

16

Plaintiffs’ claims include: violation of their rights under

17 the United States Constitution Fourth Amendment to be free from

18 unreasonable seizures and searches; the Fifth and Fourteenth

19 Amendments for deprivation and destruction of personal property

20 without due process of law without meaningful notice and the

21 opportunity to be heard at a meaningful time in a meaningful

22 manner; violation of the California Constitution Art. I, §§ 7 and

23 13, prohibiting unlawful searches and seizures of property and

24 deprivation and destruction without due process of law; violation

25 of California Civil Code § 2080 et seq., protecting the rights of

26 owners of “found” property; and violation of California Civil

27 Code § 52.1 et seq., for alleged interference with rights secured

28 by the Constitution or laws of the United States or rights

4

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 5 of 88

1 secured by the Constitution and laws of the State of California

2 from infringement by threats, intimidation, or coercion.

3

4 C. DEFENDANTS’ DEFENSES

5

1. Defendants cite public health and sanitation concerns.

6 Defendants claim that the areas where homeless individuals live

7 typically reek of urine and feces. Such affected areas,

8 according to Defendants, include human sewage, syringes, used

9 condoms, rotting food, and piles of trash and debris. Defendants

10 claim that the areas in and around the temporary shelters pose

11 public health and safety concerns including assault, drug use,

12 prostitution, and child endangerment.

13

2. Defendants also argue that Plaintiffs’ homelessness is

14 a choice rather than involuntary, due to the existence of

15 available shelter in the City of Fresno. Defendants argue that

16 Plaintiffs are typically victims of substance abuse, drug use,

17 and alcoholism.

18

3. Defendants claim that they do not have a pattern or

19 practice in place or that has been implemented to seek out or

20 eliminate shelters of homeless individuals and cannot be liable

21 under Monell for abridgement of civil rights under color of state

22 law. Defendants argue that the shelters are instead removed as a

23 result of complaints by local residents and business owners. Each

24 of the enforcement actions complained of by Plaintiffs have

25 occurred on property owned by landowners who have requested the

26 City abate the public nuisance created by the temporary shelters.

27

4. According to Defendants, notice was given prior to each

28 and every enforcement action. The notice was an “organized

5

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 6 of 88

1 distribution of oral and written notice to the habitants of the

2 temporary shelters.” The notice stated, “If you have property in

3 these areas, please remove it or we will take it as trash. Any

4 property found without the owner to claim it will be taken.”

5 Defendants claim that the inhabitants were notified that a clean

6 up of the area would occur, and that all trash, including

7 unattended property found without the owner to claim it would be

8 removed. In addition Defendants claim that they also gave

9 advanced notice at the local service centers like the Poverello

10 house and asked that those service providers also tell affected

11 individuals that they need to move.

12

5. Defendants claim that only individuals who refuse to

13 comply with the City’s clean up efforts experience any arguable

14 loss of property. According to Defendants, before any activity is

15 taken to effect a clean up of the area, the affected individuals

16 are provided with an opportunity to remove their personal

17 effects. Defendants claim that the City has never denied an

18 individual the opportunity to remove personal property prior to

19 or during such clean up efforts. The vast majority of

20 individuals affected by these clean up efforts voluntarily

21 comply, and relocate their personal effects prior to the clean

22 up.

23

6. Defendants argue that the City has adopted a shopping

24 cart ordinance. According to Defendants, the City does not

25 randomly throw away shopping carts which accumulate in or around

26 the downtown area. Under the ordinance branded shopping carts

27 are collected and turned over to a private contractor who

28 specializes in the return of such carts to a private business.

6

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 7 of 88

1

II. FINDINGS OF FACT

2 A. The Homeless Population In The City of Fresno

3

1. According to the City of Fresno’s consolidated plan for

4 the fiscal years 2006 to 2010, a document adopted by the City as

5 an admission, the City of Fresno had a homeless population of

6 8,824 people in 2005. Over 7,000 of this population are

7 unemployed. (RT vol. II, 22, Nov. 17, 2006; Souza Ex. A, 28).

8

2. The shelter available for homeless persons in the City

9 of Fresno is substantially less than the need for that shelter.

10 The existing overnight facility beds for individuals and families

11 seeking shelter overflow daily, and there is a significant

12 shortage of available overnight homeless shelter beds on a daily

13 basis in Fresno. (RT vol. III, 20, 22, Nov. 17, 2006: Souza Ex.

14 A, 16).

15

3. The City of Fresno contains several homeless service

16 providers including The Poverello House, The Fresno Rescue

17 Mission, Naomi’s House, and the Village of Hope.

18

4. The homeless shelters do not always operate at full

19 capacity.

20

5. Some of the shelters have conditions or requirements

21 that some homeless people may not be able to meet, such as daily

22 prayer in the Christian Faith.

23

6. Even if the homeless shelters operated at full capacity,

24 there is still insufficient accommodations for the homeless

25 population in the City of Fresno.

26

7. Andrew Souza(“Souza”), the City Manager for the City of

27 Fresno who reports directly to the Mayor, admits that the City of

28 Fresno does not have enough accommodations to meet the needs of

7

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 8 of 88

1 the homeless of the City of Fresno.

2

8. At most there are 40 beds available, nightly, for the

3 over 2,000 homeless women living in Fresno.

4

9. At most there are approximately 175 beds for the

5 approximately 2,400 homeless men living in Fresno.

6

10. Over the last three years homeless temporary shelters

7 have been erected by the homeless residents in the downtown area.

8

11. There are temporary shelters located on Ventura Street

9 and E Streets in the City of Fresno.

10

12. There are also temporary shelters on G Street just

11 south of the Rescue Mission underneath the overpass.

12

13. There is an H street encampment, which is rather large,

13 behind the Rescue Mission.

14

14. South of Poverello House, people live in abandoned

15 buildings.

16

15. People also live in the island between Highway 99 going

17 north and south.

18

16. People live behind gas stations near Fresno Street.

19

17. People in the downtown area live in the alcoves of

20 buildings and the bushes near these buildings.

21

18. These temporary shelters have included anywhere from

22 fifty to sixty residents to as few as ten or twenty residents.

23

19. These temporary shelters are formed even when homeless

24 facilities are not full to capacity.

25

20. The supply of overnight shelter space consists of the

26 following: Naomi’s House, the primary women’s shelter for

27 homeless single women in Fresno, has 22 beds and two emergency

28 cots. (RT vol. I, 64, Nov. 7, 2006) (Apper). Naomi’s house is

8

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 9 of 88

1 frequently at full capacity and unable to accommodate homeless

2 single women. In an attempt to deal with the fact that the

3 demand for beds far outstrips the supply, Naomi’s House has

4 resorted to various means, such as holding a daily lottery to

5 determine which women will get beds or asking women already

6 residing in the shelter to give up their spot to another woman

7 who requests shelter on any given night. (id.). (Testimony of

8 Doreen Eley, Nov. 17, 2006). Naomi’s House requires that all

9 women staying there leave every morning at 7:30 a.m. and do not

10 check in before 4:30 p.m. (RT, vol. I, 71, Nov. 7, 2006).

11 (Connell).

12

21. The Poverello House’s Village of Hope has a total of

13 44 beds in 22 ten foot by ten foot Tuff Sheds (tool sheds) that

14 do not have plumbing or electricity, available for homeless men

15 or women. (RT vol. I, 64, Nov. 7, 2006) (Apper). Residents of

16 the Village of Hope must be voted in by current residents as a

17 condition to stay overnight there and must perform assigned

18 chores on a daily or weekly basis. (RT vol. I, 80, 110, Nov. 7,

19 2006) (Connell). Some homeless are unable to stay at the Village

20 of Hope because they are not voted in, or because they find the

21 conditions unsafe or otherwise problematic. For example,

22 homeless people with jobs may find that assigned chores conflict

23 with their work schedule. Many homeless people own a dog for

24 protection or companionship and the Poverello House does not

25 permit the owner to keep his or her dog in the shed. (RT vol.

26 II, 50-52, Nov. 16, 2006) (Deatherage). Residents must leave the

27 Village of Hope at 7:30 a.m. every morning and cannot return to

28 their shelter before the evening. (RT vol. I, 110-11, Nov. 7,

9

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 10 of 88

1 2006) (Connell).

2

22. The Fresno Rescue Mission, the primary men’s shelter

3 in Fresno, has approximately 134 beds and requires participation

4 in Christian faith prayer services as a condition of staying

5 there. (RT vol. I, 65-66, Nov. 7, 2006) (Apper). Women are not

6 allowed in the Fresno Rescue Mission. The men who stay there can

7 keep no property with them and they cannot stay there between

8 7:00 a.m. and 5:00 p.m. (Testimony of Larry Arce, Nov. 17,

9 2006).

10

23. Assuming the Tuff Sheds at the Poverello House were

11 split evenly between men and women, there are approximately 46

12 beds for women and 157 beds, totaling 203 beds for homeless men

13 and women in the City of Fresno. There are thousands of homeless

14 people in Fresno who have no shelter and therefore must sleep in

15 tents or other makeshift shelters.

16

24. It is common for homeless people to store their

17 belongings in a shopping cart, some other cart or other wheeled

18 device. (RT vol I, 159, Nov. 7, 2006) (Apper). Due to the

19 uncertainty of living on the street, homeless people often desire

20 to have their possessions ready to move. (RT vol. I, 158-59,

21 Nov. 7, 2006; vol. II, 117, Nov. 16, 2006) (Apper and Kincaid).

22 It is common for homeless people to store their belongings in

23 such a way that fits in the cart, buggy or other similar device.

24 It is also common for homeless people to cover their carts

25 containing their property with a blanket or tarp, to protect the

26 property. (RT vol. II, 10, 96, 123, Nov. 16, 2006) (Thomas,

27 Williams and Kincaid). Social service workers, police officers,

28 and other City employees and officials who have regular contact

10

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 11 of 88

1 with homeless people actually know, or reasonably should know,

2 that homeless people commonly store their property in this

3 manner. (Testimony of Greg Garner, Nov. 17, 2006).

4

25. As a practical matter, homeless people cannot stay

5 with their property 24 hours per day because they, like people

6 who have homes, have to use the bathroom, shower, and conduct

7 other necessary daily activities. (RT vol. II, 19, Nov. 16,

8 2006) (Thomas). Those who have jobs must leave their belongings

9 while they work, recycle, or engage in other activities. (See,

10 e.g., RT vol. II, 33, Nov. 16, 2006) (Deatherage). They

11 nonetheless have an expectation of continued ownership of their

12 property and do not intend to abandon their property because they

13 leave it in a cart or similar device, which is covered by or

14 wrapped in a blanket, tarp, or tent, unattended for a period of

15 time.

16

26. Between 4,400 to 8,800 of Fresno’s approximately

17 440,000 residents are homeless, according to a recent report by a

18 consortium of local government agencies and providers. (Doc. 1,

19 Complaint, ¶33) “[O]nly 1.4% of the homeless population [is]

20 sheltered....leaving more than 98% of the homeless population

21 unsheltered and receiving no services.” Individuals without

22 residences have set up temporary shelters in the southwestern

23 area of the City of Fresno on property they do not own and do not

24 maintain. The City asserts such temporary shelters and

25 congregations of individuals create a risk to the public health

26 and safety and generate significant complaints from surrounding

27 residents, business and property owners.

28 ///

11

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 12 of 88

1 B. City’s Response to Complaints About the Homeless

2

27. In response to complaints about the temporary shelters,

3 for the last three years the City of Fresno has conducted “clean

4 ups” or sweeps of these shelters.

5

28. The City of Fresno’s response to the numerous

6 complaints about homeless encampments has been to provide

7 “advance oral and sometimes written notice,” ranging from one to

8 five days, to the homeless in the area, that the residents of the

9 temporary shelters must move, and that any unclaimed property

10 will be discarded. The exact timing, form and adequacy of the

11 notice given is a materially contested fact, particularly as to

12 personal property of the homeless persons that will be discarded

13 or destroyed.

14

29. When the City removes a temporary settlement, a

15 bulldozer, City garbage truck, or other heavy equipment are

16 employed by Sanitation Department personnel, to pick up most of

17 the Plaintiffs’ possessions and dump them in a garbage truck

18 where the property is immediately crushed by compaction.

19

30. The evidence focused on six of these sweeps in which

20 residents of temporary shelters were required to move with their

21 property. All the property that was not carried away by the

22 individual owners was loaded into garbage trucks and destroyed on

23 the spot.

24

31. Further dispute exists to when and to what extent

25 Plaintiffs are permitted to retrieve their possessions or save

26 them from destruction before and during the sweeps. Plaintiffs

27 testified that efforts to save their possessions have resulted in

28 arrest threats. The Fresno Police who execute the sweeps have

12

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 13 of 88

1 announced to individuals present that once the heavy equipment

2 and garbage trucks arrive, no one, including the owners, may

3 interfere with the seizure and destruction of the property due to

4 safety concerns.

5

6 C. The City of Fresno’s Seizure and Destruction of the Property

7

of the Homeless

8

32. It is the City’s policy, pattern and practice to seize

9 and immediately destroy property of the homeless, including tents

10 and carts containing personal possessions, that are not

11 immediately attended to by the owner or that remain in an area

12 after a time set by City officials. (RT vol. III, 11-12, Nov.

13 17, 2006) (Souza), (RT vol. II, 33-52, 67-77, 94-110, 115-29,

14 Nov. 16, 2006; see also Testimony of Joanna Garcia, Nov. 17,

15 2006) (Deatherage, Nelson, Williams and Kincaid). More

16 specifically, the City’s policy is that any property that is not

17 physically attended to by its owner is considered abandoned and

18 is defined by the City as “trash.” All such property will be

19 destroyed with no chance for the owner to reclaim it. (RT vol.

20 III, 24, Nov. 17, 2006) (Souza).

21

33. Fresno Police Department Specialist Reynaud Wallace

22 originally developed this practice as a method of dealing with

23 homeless persons in Fresno. (Testimony of Reynaud Wallace, Nov.

24 22, 2006). This practice of treating property of the homeless as

25 abandoned and therefore trash, has been adopted by the City

26 Manager, City Police Department, and has been implemented in at

27 least fifty sweeps in the last two years.

28

34. Under the City’s policy, even property stored on real

13

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 14 of 88

1 property with permission from the real property owner has been

2 considered abandoned and immediately destroyed by the City.

3 (Testimony of Greg Garner, Nov. 17, 2006). Although this policy

4 is not in writing, it has been adopted by the city of Fresno as

5 part of its official policy toward the property of the homeless.

6 Under this policy, the City seizes and immediately destroys

7 property of the homeless, with no opportunity for a hearing or to

8 claim or recover their property. (RT vol. III, 24, Nov. 17,

9 2006) (Souza). The testimony of witnesses Mr. Weathers, a

10 supervisor in the Fresno City Sanitation Department, Specialist

11 Wallace, and Captain Garner are all consistent with this finding.

12

35. Pursuant to the City’s policy and practice, the City,

13 through its Police Department and Community Sanitation Division,

14 has conducted sweeps of various locations where homeless people

15 live in the City of Fresno approximately 25 times per year since

16 the beginning of 2004, in which the property of the homeless has

17 been confiscated and immediately destroyed. (Testimony of

18 Reynaud Wallace, Nov. 22, 2006; see also RT vol. II, 83-83, 117-

19 18, Nov. 16, 2006) (Williams and Kincaid).

20

36. The temporary shelters consist of temporary camping

21 tents or are fabricated of whatever materials are available.

22 Such materials include pieces of metal, tents, wooden structures,

23 branches from trees, discarded mattresses, and various different

24 items.

25

37. Pursuant to its policy, pattern and practice, the City

26 confiscated and immediately destroyed the property of homeless

27 persons living on the west side of “E” Street, Broadway Street,

28 and “H” Street, Van Ness Street and Los Angeles Street, Sante Fe

14

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 15 of 88

1 Street and Ventura Street in Fresno, on May 3, 2006. (Statement

2 of Decision and Findings re: Plaintiffs’ Application For

3 Temporary Restraining Order, 3, October 23, 2006; Rhodes Decl. ¶

4 5; Garcia Decl. ¶ 5).

5

38. Pursuant to its policy, pattern and practice, the City

6 confiscated and immediately destroyed the possessions of the

7 homeless on both sides of “E” Street and Santa Clara Street in

8 Fresno on June 22, 2006 (RT vol. I, 149, Nov. 7, 2006) (Apper).

9

39. Early in the morning of June 22, 2006, City workers

10 began removing tents and other property with bulldozers on the

11 west side of “E” Street. Some homeless people tried to save

12 their tents and property by moving it to the east side of “E”

13 Street, under the understanding from previous City sweeps that

14 their property would be safe there because the City would not

15 sweep that side. However, on this occasion the City extended its

16 sweep to the east side of “E” Street as well as the west side.

17 (RT vol. I, 149-74, Nov. 7, 2006; Apper Ex. J) (Apper). City

18 workers removed and destroyed a tent where a person’s

19 identification was hanging from a door.

20

40. In October 2006, the court issued a temporary

21 restraining order against the immediate destruction of the

22 property of the homeless by the City of Fresno.

23

24

1. Lisa Apper

25

41. Ms. Apper was present at this sweep and attempted to

26 save four shopping carts containing a homeless persons’

27 possessions. Specialist Wallace challenged Ms. Apper to identify

28 the owner of the carts and told her that the carts of which she

15

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 16 of 88

1 attempted to take possession were trash and had to be destroyed.

2 (RT vol. I, 155-57, Nov. 7, 2006; Apper Ex. B, C, D) (Apper).

3 Despite Specialist Wallace’s testimony that he knew all the carts

4 belonged to someone, the City seized and immediately destroyed

5 all of the property in three of the carts and the carts

6 themselves, except for one cart that Ms. Apper was physically

7 holding and apparently refused to release.

8

42. Captain Garner told Ms. Apper that she could go to jail

9 for obstruction for her efforts to save the property. This

10 seizure of property directly contradicted Garner’s and Wallace’s

11 testimony that persons present at sweeps who claim property are

12 always permitted to take it. The City seized and immediately

13 destroyed the three carts in addition to other shopping carts in

14 the area, by placing them into a dump truck where the carts and

15 the property contained within were smashed and compacted. (RT

16 vol. I, 162-70, Nov. 7, 2006; Apper Ex. E, G, H; Rhodes Ex. E)

17 (Apper).

18

19

2. Sandra Thomas

20

43. The evidence established that the property and carts

21 that Ms. Apper was attempting to save in fact belonged to a

22 homeless person, Ms. Sandra Thomas. Ms. Thomas testified she

23 made substantial efforts to secure her property and keep it from

24 destruction from the June 22, 2006, sweep and had no intention to

25 abandon her property. Ms. Thomas learned that the City intended

26 to conduct a sweep on the morning of June 22, 2006, but, based on

27 past sweeps, understood that this would occur on the west side of

28 “E” Street, not the east side. She therefore awoke early on the

16

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 17 of 88

1 morning of June 22, 2006, packed all of her possessions, and

2 moved them to the east side of the street. She took the further

3 step of seeking permission from the owner of a house on the east

4 side of the street to allow her to store her property in front of

5 that house. Her property was stored, essentially on the private

6 property of a resident of “E” Street, with that resident’s

7 permission. Ms. Thomas also obtained permission from Specialist

8 Wallace to leave her belongings unattended while she ran personal

9 errands, which included visiting a nearby recycling center and

10 going for a shower and breakfast. When Ms. Thomas returned, all

11 that remained of her property after the City destroyed the rest

12 was the one cart which Ms. Apper saved. Among several of Ms.

13 Thomas’ possessions, the City destroyed her backpack which

14 contained her driver’s license, Social Security identification,

15 and her grandmother’s wedding band. Because Ms. Thomas’ shelter

16 was destroyed, she had no shelter or other possessions and was

17 therefore forced to sleep on the street with no shelter that

18 evening, which contributed to her catching pneumonia in both

19 lungs. (RT vol. II, 7-28, Nov. 16, 2006; Apper Ex. C, G through

20 I) (Thomas). Ms. Thomas’ testimony was not contradicted.

21

22

3. The Bicycle

23

44. Also on June 22, 2006, and pursuant to its policy,

24 pattern and practice, the City took and immediately destroyed a

25 significant amount of other property of the homeless, including

26 tents, blankets, and a functional bicycle in good repair that had

27 been left by its owner in the area where homeless people live.

28 The City seized the bicycle from the location where it was stored

17

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 18 of 88

1 and threw it into a garbage truck, where the bicycle and other

2 property were all crushed. (Rhodes Ex. E, F). Under the City’s

3 policy, pattern and practice, a fully functional bicycle found

4 without its owner in the area where homeless people live during

5 one of the City’s homeless “sweeps” is considered abandoned,

6 therefore “trash,” and is immediately destroyed. (Testimony of

7 Phillip Weathers, Nov. 17, 2006; see also RT vol. III, 24, Nov.

8 17, 2006) (Souza). Both Mr. Weathers and Mr. Souza testified the

9 bicycle which appeared in photographs to be in good condition was

10 “trash” because it was unattended. Each City witness explained

11 that property found at any sweep location that is unattended is

12 treated as “abandoned” and subject to immediate destruction

13 because the City of Fresno deems the property to be “trash,” no

14 matter its nature, condition, or value.

15

16

4. Douglas Deatherage

17

45. Also on June 22, 2006, and pursuant to its policy,

18 pattern and practice, the City took and immediately destroyed the

19 property of Douglas Deatherage, a homeless man. Mr. Deatherage

20 lived in a tent with his current fiancé, Pamela Streeter, on the

21 west side of “E” Street on June 22, 2006. He had previously

22 lived at the Village of Hope, but because he had a dog, worked

23 during the day and was assigned security at the Village of Hope

24 at night, he was not able to get adequate rest and had to leave.

25 Mr. Deatherage has a job sorting out building materials but

26 cannot afford a home. (RT vol. II, 33-34, Nov. 16, 2006)

27 (Deatherage). On the morning of June 22, 2006, Mr. Deatherage

28 first learned of the City’s intended action in the area when he

18

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 19 of 88

1 saw the bulldozer and city trucks at the site. Mr. Deatherage

2 moved his property, tent and shopping carts to the east side of

3 “E” Street because the City had previously permitted the homeless

4 to move their property to the east side of the street during the

5 sweep and then return to the west side after the sweep. When Mr.

6 Deatherage returned from the store, he learned from Ms. Streeter,

7 who remained with the property, that the City workers took and

8 destroyed their property despite her efforts to stop them and

9 claim the property. The City destroyed Mr. Deatherage’s tent,

10 sleeping bags, clothes, hygiene kits, shoes, an antique stamp

11 collection, letters from his father, birthday cards to which he

12 looked for an inspiration, and Ms. Streeter’s urn containing the

13 ashes of her granddaughter. The destruction of this property

14 makes it harder for Mr. Deatherage to hold his job without clean

15 clothes and harder for him to survive because he must spend his

16 income to replace some of what was destroyed. (RT vol. II, 33-

17 52, Nov. 16, 2006) (Deatherage).

18

46. Pursuant to its policy, pattern and practice, the City

19 confiscated and immediately destroyed additional valuable

20 property of homeless persons living on the west side of “E”

21 Street in Fresno, on July 1, 2006. (Statement of Decision and

22 Findings, 4; Rhodes Decl. ¶ 15).

23

47. Pursuant to its policy, pattern and practice, the city

24 confiscated and immediately destroyed the property of homeless

25 persons living on both sides of “E” Street in Fresno, on August

26 26, 2006. (RT vol. I, 184, Nov. 7, 2006) (Apper). The City gave

27 written notice that it would be sweeping the area on August 25,

28 2006, but actually conducted the sweep the following day. (RT

19

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 20 of 88

1 vol. II, 45, Nov. 16, 2006) (Deatherage). The City offered in

2 evidence only one written notice of a sweep, which specified the

3 wrong date for the sweep.

4

48. On July 1, 2006, the City again employed a bulldozer

5 and garbage truck to take and immediately destroy property,

6 affording no opportunity to homeless to recover their property.

7 For example, after unsuccessful requests to City workers for more

8 time, Mr. Deatherage was unable to move his property to safety on

9 August 26, 2006, and the City again destroyed his clothes,

10 sleeping bag, stroller, backpack and tarps in a garbage truck.

11 (RT vol. II, 44-47, Nov. 16, 2006) (Deatherage).

12

49. Once the City had finished its business in the area

13 between Highway 99 and “E” Street, the City erected a fence so

14 that the area was inaccessible to people. (RT vol. I, 184-89,

15 Nov. 7, 2006) (Apper). The purpose of erecting the fence was to

16 prevent the homeless people from returning to that area.

17 (Testimony of Greg Garner, Nov. 17, 2006). The City did not make

18 any other place available for the deposit of homeless people’s

19 property. (RT vol. I, 184-90, Nov. 7, 2006) (Apper).

20

21

5. H Street Property

22

50. Pursuant to the City’s policy, pattern and practice,

23 Fresno Police destroyed the property of homeless persons at an

24 area near “H” and San Benito Streets on October 8, 2006. Some of

25 these homeless people had shopping carts that they claimed were

26 their own property which they used to move personal property.

27 Police dumped the possessions on the ground, confiscated all the

28 shopping carts and removed them. (Statement of Decision and

20

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 21 of 88

1 Findings, 4; Clay Decl. ¶ 5; O’Brien Decl. ¶ 6). The Fresno

2 Police acted under a shopping cart ordinance, which was not yet

3 in effect and did not become effective until October 27, 2006, as

4 a tool to take these carts from homeless people. (Testimony of

5 Greg Garner, Nov. 17, 2006; Garner Ex. G).

6

51. On October 11, 2006, Fresno Police Officers confronted

7 a group of homeless people in the area of “H” and San Benito

8 Streets, ordered them to stand in lines for a period of time, and

9 gave the people a “formal warning” that the Police intended to

10 return “very soon,” and would continue to confiscate and destroy

11 any property of the homeless found in that area, though the

12 police did not say when, to destroy everything homeless people

13 owned in the area. (Statement of Decision and Findings, 4;

14 Vizcarrando Decl. ¶¶ 2-7; Tracy Williams Decl. ¶¶ 2-4).

15

52. Additionally, pursuant to the City’s policy, pattern

16 and practice, Fresno City sanitation workers and Police Officers

17 have routinely taken and immediately destroyed homeless people’s

18 property in other parts of Fresno, often in locations where

19 individual or small groups of homeless people live. (RT vol. I,

20 196-97, Nov. 7, 2006) (Apper).

21

22

6. Jeannine Nelson

23

53. Pursuant to the City’s policy, pattern and practice,

24 the City took and immediately destroyed the property of Jeannine

25 Nelson, who was homeless on occasion since 1996, but obtained

26 permanent housing in September, 2006. In March, 2006, Ms. Nelson

27 was living in an empty field off of Cedar and Gettysburg Streets

28 in north Fresno, when Fresno Police Officers seized and destroyed

21

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1 her property and the property of her friends, Mr. Rodriguez and

2 Mr. Pine. The Police Officers gave Ms. Nelson ten minutes to

3 move her property out of the field and instructed her to throw

4 away the rest. The Officer told Ms. Nelson “he never wanted to

5 see her again.” As a result, she lost pillows, blankets,

6 clothing, jackets, shoes, paperwork, and food. Ms. Nelson, Mr.

7 Pine and Mr. Rodriguez subsequently moved to a church on

8 Millbrook and Shields Streets in Fresno with the express

9 permission of the church’s pastor and congregation, which was

10 published in the church newsletter. (RT vol. II, 60-64, Nov. 16,

11 2006; Nelson Ex. A) (Nelson).

12

54. Around the end of June 2006, a Fresno police officer

13 destroyed Ms. Nelson’s and Mr. Rodriguez’s property, which Ms.

14 Nelson was watching, by pushing their shopping carts packed with

15 their belongings into an irrigation canal of rushing water.

16 There was no prior notice of this seizure and destruction.

17 Despite Ms. Nelson’s presence with the property and her offer of

18 written proof she had permission to be on church property, the

19 police destroyed their property. Mr. Rodriguez lost his cart

20 containing his stereo, clothing, bedding, toiletries and his

21 prized photo album containing pictures of him as a young man in

22 the Marine Corps, his children and grandsons. Ms. Nelson lost

23 her cart containing her birth certificate, medical files for that

24 year with which she filed for Social Security disability, her

25 California identification card, clothing, toiletries, bedding,

26 food, asthma medication and a nebulizer machine which she used to

27 breathe.

28

55. Subsequently, Ms. Nelson had to spend much time in the

22

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1 hospital emergency room until she eventually replaced her asthma

2 medications two months later and obtained a new breathing machine

3 five months after the destruction. Ms. Nelson had to refile for

4 Social Security disability and must now try to replace her

5 identification, birth certificate, and medical records to qualify

6 for disability. With money earned from recycling and given to

7 her by her pastor, Ms. Nelson was able to obtain an apartment

8 with the help of a Section 8 subsidy in September 2006. (RT vol.

9 II, 67-77, Nov. 16, 2006) (Nelson).

10

11

7. Alfonso Williams

12

56. Pursuant to its policy, pattern and practice, the City

13 took and immediately destroyed the property of Alphonso Williams,

14 a homeless man, who has seen City workers and police officers

15 destroy the property of homeless people from seven to eight times

16 over the last several years. In the fall of 2005, Mr. Williams

17 was living on the 1700 block of Olive Avenue when the City took

18 and destroyed his property. Without prior notice, Fresno City

19 police officers ordered Mr. Williams to move all of his property

20 in one hour. Mr. Williams was able to load most of his property

21 into his friend’s truck when City workers arrived in City of

22 Fresno trucks with a bulldozer and a City pickup truck. The City

23 destroyed the property that Mr. Williams was not able to load

24 onto his friend’s truck because the City workers insisted that

25 Mr. Williams ran out of time. A police officer then told Mr.

26 Williams that his friend’s truck would be towed and that Mr.

27 Williams had to unload his property from his friend’s truck in

28 order to save it. After the police watched Mr. Williams unload

23

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 24 of 88

1 his property, he left for 30 to 45 minutes to search for more

2 transportation for his property and returned with two shopping

3 carts to find the City had confiscated and destroyed the rest of

4 his property, including his wife’s wheelchair and necessary

5 medications, their wedding pictures and family portraits. That

6 night, Mr. Williams and his wife had to sleep without shelter or

7 blankets. Following this destruction, Mr. Williams’ wife, who

8 was in ill-health and prone to seizures, was in a coma for two

9 weeks. (RT vol. II, 81-92, Nov. 16, 2006) (Williams).

10

57. In August 2006, at 7:00 a.m., Mr. Williams returned to

11 his temporary shelter on West Olive and West Avenues to find

12 several police cars, a garbage truck, a City of Fresno van and

13 City workers present at his temporary shelter. By this time, the

14 City workers had confiscated and destroyed one-half of Mr.

15 Williams’ property. Mr. Williams saw City workers throwing

16 shopping carts in the garbage truck, where the carts were

17 crushed. The police refused to allow Mr. Williams to reclaim his

18 property and threatened him with tasers if he attempted to

19 interfere with the work of the City crews in an effort to

20 retrieve his property. (RT vol. II, 94-110, Nov. 16, 2006)

21 (Williams).

22

23

8. Pamela Kincaid

24

58. Pamela Kincaid, a homeless woman, has observed at least

25 30 occasions over the last six years where the City of Fresno has

26 taken and immediately destroyed the property of homeless people

27 at several locations throughout the City, pursuant to its policy,

28 pattern and practice of confiscating and immediately destroying

24

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1 property of the homeless. In the early summer of 2006, Ms.

2 Kincaid witnessed the City’s destruction of an eight-man tent

3 containing kittens, using a bulldozer. At no time has Ms.

4 Kincaid witnessed property saved to be reclaimed by its owner.

5 Ms. Kincaid could not stay at Naomi’s House because she is

6 claustrophobic and had five panic attacks in the seven days she

7 was there. (RT vol. II, 114-30, Nov. 17, 2006) (Kincaid).

8

59. Pursuant to its policy, pattern and practice of

9 defining unattended property of the homeless as abandoned and

10 trash, the City destroyed Ms. Kincaid’s property at least six

11 times over the past six years, during which Ms. Kincaid received

12 advance notice on one occasion and was never given the

13 opportunity to reclaim her property. In 2005, Ms. Kincaid had no

14 notice of the City’s arrival, and despite her presence with her

15 property and her attempt to save it, the City told Ms. Kincaid

16 that she had no more time to move her things. Most of her

17 property was immediately destroyed.

18

60. On another occasion in 2005 where Ms. Kincaid left her

19 property unattended, she returned to find all of her property

20 gone. Ms. Kincaid lost everything she owned, including family

21 photos, important documents, birth certificates, and her

22 telephone and address book.

23

61. Around October 2006, Ms. Kincaid left her temporary

24 shelter and her packed and covered cart to recycle to earn money.

25 Ms. Kincaid’s cart was an old cart from a Thrifty store, which

26 she obtained after Thrifty ceased business. She returned to find

27 that most of her property that was in the cart had been dumped on

28 the ground and her cart and her tools were gone. Ms. Kincaid

25

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 26 of 88

1 later learned that the City of Fresno took her shopping cart and

2 the carts of others. Ms. Kincaid can no longer earn income by

3 making and selling crafts because the City took all of her tools

4 she used to make crafts. The City has not told Ms. Kincaid of a

5 place where she and her property will be safe, but has told her

6 to “stay out of sight.” (RT vol. II, 115-29, Nov. 16, 2006)

7 (Kincaid).

8

9

9. Joanna Garcia

10

62. The City has, pursuant to its policy, pattern and

11 practice, destroyed the property of Joanna Garcia, a homeless

12 woman, on five separate occasions when she lived in the vicinity

13 of Ventura, “C” and “E” Streets. In March 2005, without prior

14 notice, the City destroyed the “ponytail” of hair of Ms. Garcia’s

15 son, a memento of her son, whom she had not seen in several years

16 due to her homeless status. The City also destroyed her

17 grandmother’s photo and important papers.

18

63. In May 2006, without prior notice, the City destroyed

19 all the property that Ms. Garcia could not carry, including her

20 medications, blankets, clothing, her dog and ten puppies.

21

64. In August 2006, after City workers gave Ms. Garcia

22 seven minutes to pack up, the City destroyed all of her property

23 in her presence, including tents, blankets, sleeping bags,

24 identification and her blood pressure medication. (Testimony of

25 Joanna Garcia, Nov. 17, 2006).

26

65. The Court finds that the experiences and harms of Ms.

27 Garcia and all the other homeless witnesses who testified in this

28 proceeding are typical of the experiences and harms suffered by

26

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1 other homeless people as a result of the city-wide practice and

2 policy of declaring unattended property of the homeless,

3 abandoned and trash, and immediately destroying such property,

4 which is carried out by the City of Fresno through its City

5 Manager, Department of Sanitation, and Police Department.

6

66. Specialist Wallace did not keep count of all of the

7 carts containing the property of the homeless that he has

8 observed being destroyed by the City pursuant to its policy,

9 practice and pattern, but he estimates that the number of such

10 destroyed carts containing the homeless’ property was at least in

11 the hundreds and “countless” over the past two years in the

12 southwest district of the City alone. (Testimony of Reynaud

13 Wallace, Nov. 22, 2006).

14

67. The testimony of these seven witnesses directly

15 contradicted the testimony of City witnesses who testified the

16 homeless were always permitted to remove their property during

17 clean-ups. The Court finds this collective, specific testimony

18 more credible, based on the lack of any specific contradictory

19 evidence from the City.

20

21 D. Notice

22

68. The City contends that each of its sweeps of locations

23 where the homeless live and its concurrent destruction of

24 property is in response to related complaints made to the City by

25 private property owners, including CalTrans and railroads, but

26 did not provide the Court with any written evidence of such

27 complaints. (RT vol. II, 7, Nov. 17, 2006) (Souza).

28

69. The City contends that it issued written or oral notice

27

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 28 of 88

1 for every sweep it conducted but offered in evidence only one

2 “form” of a written notice, which itself announced a sweep for an

3 incorrect date. This form specifically stated that any property

4 found without the owner to claim it will be taken as trash, and

5 provided no way for seized property to be reclaimed. (Gardner

6 Ex. D).

7

70. City Manager Souza testified that the City tries to

8 give advance notice from one to five days before a sweep.

9 However, Mr. Souza has seen none of the notices he claims the

10 City has generated for its sweeps. (RT vol. III, 8-26, Nov. 17,

11 2006) (Souza).

12

71. Specialist Wallace testified that he attempts to give

13 oral notice of a sweep to the homeless, but testimony of at least

14 seven victims of the City’s property destruction showed that a

15 significant number of homeless people did not receive such

16 notice. (Testimony of Reynaud Wallace, Nov. 22, 2006). During

17 one of the City’s sweeps in the summer of 2006, the Poverello

18 House staff generated a written notice, which was posted at the

19 Poverello House. The Poverello House claims it generated

20 additional written notices of City’s sweeps for various dates.

21 None of these notices were offered in evidence. (RT vol. I, 98-

22 106, Nov. 7, 2006; Apper Ex. N) (Connell).

23

72. The testimony of the homeless persons whose property

24 the City destroyed shows that any notice the City may have given

25 was substantially ineffective and experience has proven, by a

26 preponderance of the evidence, not reasonably calculated to

27 provide effective notice. The City’s practice is to immediately

28 seize and irrevocably destroy homeless people’s property without

28

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 29 of 88

1 adequate pre-deprivation notice.

2

73. There is no ability for people to reclaim their

3 property because the property is immediately destroyed, and no

4 means of post-deprivation relief is provided. (Testimony of Greg

5 Garner, Nov. 17, 2006).

6

74. The City presented no evidence of any pre- or post-

7 deprivation remedy available to persons whose property is seized

8 and destroyed.

9

75. Captain Garner and Specialist Wallace testified that

10 the Fresno Police gave both oral and written notice to the

11 residents of the temporary shelters before each clean-up was

12 conducted.

13

76. Captain Garner testified that the police noticed

14 everyone in the area including service agencies, private

15 businesses, private homes, everybody in the area.

16

77. Captain Garner testified the police wanted to make sure

17 no one was caught off guard by what the police were trying to

18 accomplish.

19

78. The single notice of clean-up submitted by the City

20 into evidence is incorrectly dated August 25, 2006. No clean-up

21 actually occurred on August 25, 2006. The clean-up was on

22 October 26, 2006.

23

79. Captain Garner does not know if any other copies of

24 this notice exist, other than from the notice that was attached

25 to his declaration.

26

80. Captain Garner directed that the incorrect notice was

27 to be distributed “as it normally is.” Captain Garner assumed

28 that his direction was carried out.

29

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 30 of 88

1

81. Captain Garner did not actually see the notice of any

2 clean-up effort distributed to anyone.

3

82. Captain Garner claims that besides providing written

4 notice, he also visited the areas of the temporary shelters.

5

83. Mayor Autrey was present at the site of the temporary

6 shelters on August 25, 2006. The Mayor requested that the clean-

7 up be postponed for 24 hours so that adequate notice could be

8 given.

9

84. Captain Garner spoke with the Poverello House and asked

10 them to reinforce the notice given to the residents of the

11 temporary shelters.

12

85. Mr. Connell testified that he could not say for certain

13 if written notices were posted in the areas of the temporary

14 shelters before the relocation occurred.

15

86. In response to the City’s request to give homeless

16 individuals notice of the relocation, the Poverello house created

17 fliers and posted them in the dining room and around the

18 property.

19

87. Mr. Connell testified that in his opinion, this was a

20 reasonable method of providing notice to the residents of the

21 temporary housing because many of the homeless eat their three

22 meals a day at the Poverello House.

23

88. In the times that Mr. Connell has been through the area

24 he does not have specific recollection of seeing a specific

25 notice by the City of Fresno announcing the clean-ups.

26

89. There was no evidence offered of any notice provided by

27 the City Manager’s office.

28

90. The City of Fresno did not present any physical

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1 evidence of written notices of past clean-up efforts other than

2 the incorrect notice for August 22, 2006.

3

91. Mr. Souza’s knowledge of whether notice is provided

4 before each clean-up is based solely on discussions that he has

5 had with his staff. He had no direct knowledge.

6

92. Mr. Souza has never actually seen a written notice that

7 has been distributed prior to the clean-up efforts.

8

93. Mr. Souza does not actually know what the notices say.

9

94. Specialist Wallace also provides notice orally to the

10 residents of the temporary shelter and leaves the written notice

11 on every tent or inside every tent.

12

95. However, any written notice that Specialist Wallace

13 distributed to residents of any temporary shelter was not offered

14 into evidence.

15

96. Specialist Wallace also testified that he notified the

16 Poverello House about the clean-up efforts because he knows that

17 the majority of the residents eat at the Poverello House.

18

19 E. Experience of Service Providers

20

1. The Poverello House

21

97. The Poverello house has 22 sheds and room for 44

22 people. Each shed has 2 beds for a total of 44 beds.

23

98. James Connell is the Executive Director of the

24 Poverello House.

25

99. Mr. Connell has observed various health and safety

26 problems coming from the temporary shelters. He observed people

27 performing bodily functions in the street and in the gutters, the

28 presence of open trash, rotting food, and potent smells.

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1

100. Mr. Connell and other members of his staff interact

2 with individuals living in the temporary shelter in front of the

3 Poverello House on a daily basis.

4

101. The Poverello House is a homeless shelter that

5 provides basic human services for the homeless. It provides

6 approximately 1,200 meals a day, three meals a day, seven days a

7 week.

8

102. The Poverello house has a medical and dental clinic in

9 collaboration with St. Agnes Medical Center. It also has

10 clothing distribution, a shower facility, a laundry facility, and

11 a substance rehabilitation program.

12

103. The Poverello house has 28 beds for men who stay for a

13 minimum of six months.

14

104. The Poverello House has a storeroom where it allows

15 homeless individuals to store their things while they seek

16 shelter for the night.

17

105. Mr. Connell has not heard of any problems with the

18 storage and tagging procedure at the Poverello House.

19

106. The Poverello House workers do not wear biohazard

20 suits when sifting through unclaimed belongings after the 30 day

21 time limit has expired.

22

107. Poverello residents may access their things on a daily

23 basis. The policy for storage is that individuals can store

24 their items for 30 days. Their belongings are tagged and they

25 get a copy of that tag. After 30 days they may renew their tag

26 to continue to store their things.

27

108. When the belongings have been left there for more than

28 30 days and no one has checked in, the warehouseman goes through

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1 the belongings and attempts to recover anything that appears to

2 be of value or a personal memento. Anything of value is taken

3 out and repackaged. The rest of such property is discarded.

4

109. Sometimes some of the nurses from the Poverello House

5 clinic would provide care to individuals living in the temporary

6 shelters as a result of an assault or someone needing treatment.

7

110. The Poverello House filed complaints with the City

8 because it was receiving complaints from clients seeking their

9 services regarding the temporary shelters and individuals in the

10 temporary shelters.

11

111. Mr. Connell also observed drug use by some of the

12 residents of the temporary housing. He has observed people in

13 those shelters lighting crack pipes, injecting drugs, and

14 drinking alcohol.

15

112. These observations were also corroborated by separate

16 reports from his staff who were directed to clean up the area.

17

18

2. Naomi’s House

19

113. Naomi’s house is an overnight women’s shelter for

20 single women. Women must show up every night and leave in the

21 morning. During the day the shelter is open for some limited

22 counseling, rehabilitation programs, and work placement programs.

23 They have 22 beds and 2 emergency beds.

24

114. There are four full time counselors in the 24 bed

25 facility of Naomi’s house as many of the clients who stay there

26 suffer from some form of mental illness and/or addiction.

27

115. In addition to providing overnight care Naomi’s house

28 also provides services such as first and last months rent

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1 assistance and scholarships for job training programs.

2

3

3. The Fresno Rescue Mission

4

116. Fresno Rescue Mission is a men’s only shelter with

5 between 120 and 150 beds.

6

117. At the Fresno Rescue Mission single men must attend

7 Christian services as a condition for staying at the Mission.

8

118. To be eligible for the Fresno Rescue Mission, family

9 heads must be married and the family must attend a Christian

10 religious service to stay there.

11

12

4. The Village of Hope

13

119. The Village of Hope is a temporary shelter for any

14 homeless individual, except children. It is self-governed by the

15 people who live there. They have two meetings a week that are

16 facilitated by the staff. They have their own “city council”

17 that creates the rules, take care of their own security, and keep

18 the place clean.

19

120. The Village of Hope has 44 beds.

20

121. Originally the shelter was set up with two person

21 tents. Now the tents have been replaced with ten-by-ten Tuff

22 sheds.

23

122. The Village of Hope was not in operation in December

24 2003 because it had not yet been formed at that time.

25

123. The Village of Hope did not operate at maximum

26 capacity over the summer of 2006. Mr. Connell believes it

27 operated at between 50% to 60% capacity.

28

124. Mr. Connell speculates that the Village of Hope has

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1 not operated at full capacity because there are homeless

2 individuals who refuse to abide by the minimum rules required to

3 live in the Village of Hope. These rules include no alcohol or

4 drug use on the property.

5

125. The Village of Hope provides shelter for both men and

6 women.

7

126. The City of Fresno did not provide funding for the

8 formation of Village of Hope but it assisted in fast-tracking the

9 permitting process to set up the initial tents.

10

127. A requirement to live in the Village of Hope is that

11 the individual must complete a chore throughout the day. If the

12 individual works, they may make arrangements for an evening

13 chore.

14

128. During the day, individuals at the Village of Hope do

15 not have access to their shelter.

16

17 F. Complaints by Residents and Business Owners About the

18

Homeless

19

129. The Fresno Police Department repeatedly receives

20 complaints about the temporary homeless shelters. A number of

21 the calls relate to suspected criminal activity, suspected safety

22 issues, health issues, and private property owners concerned

23 about the use of their land.

24

130. Captain Garner testified that none of the areas

25 cleaned up have been cleaned without the expression of such a

26 concern by the owner of the affected property.

27

131. Over the last two years the City has received

28 complaints from Caltrans as well as the railroads. According to

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1 City testimony, Caltrans provided the City with a written

2 authorization to enter onto Caltrans property and remove the

3 temporary shelters. The City was unable to produce evidence of

4 such a written request from Caltrans.

5

132. Caltrans is responsible for the disputed area along E

6 Street. The area involves mostly freeway embankments, freeway

7 on-ramps and off-ramps.

8

9 G. The City of Fresno’s Response and Its Impact on the Homeless

10

133. To address the concern for the criminal activity and

11 drug use that was reported from these temporary shelters, Captain

12 Garner contacted several service providers in the City to assist

13 in addressing these problems. The meeting took place in Captain

14 Garner’s office.

15

134. The meeting between different representatives of the

16 City, the County, and private service agencies was held to

17 address the problems posed by temporary homeless shelters. Some

18 of the agencies included Caltrans, Social Security, the

19 Department of Motor Vehicles, the Poverello House, the Rescue

20 Mission, and County Social Services.

21

135. At this meeting Captain Garner asked if there was a

22 place that he could direct the homeless people to, or a place

23 where these people may be able to go, upon moving them from the

24 temporary shelters.

25

136. The Poverello House volunteered to take the homeless

26 people in and created the Village of Hope in response to the

27 concerns addressed at the meeting.

28

137. The City began its clean-up efforts and directed as

36

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1 many people as they could to the Village of Hope and various

2 other facilities.

3

138. There is no other City-designated place or property

4 where the homeless are directed.

5

139. It is not standard practice of the City during clean-

6 up efforts to arrest the homeless.

7

140. There have been approximately 25 clean-ups each year

8 since 2004.

9

10 H. Efforts to Address Homeless Encampments by the Different

11

City Agencies

12

1. The City of Fresno

13

141. City Manager Souza has oversight of approximately

14 3,800 City of Fresno employees.

15

142. Mr. Souza reports directly to the Mayor.

16

143. Mr. Souza is aware that temporary shelters have been

17 present throughout the City, on Caltrans property, and on

18 property owned by the Railroad.

19

144. Any complaints that Mr. Souza’s office receives are

20 forwarded to the City of Fresno Police Department.

21

145. Since the temporary restraining order issued against

22 the City, based on Souza’s investigation, he has recommended to

23 the Mayor of the City of Fresno that the City cease its clean-up

24 efforts.

25

146. There is no City property allocated to the homeless.

26

27

2. The Fresno Police Department

28

147. Part of Captain Garner’s duties include supervising

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1 the Problem Oriented Policing (“POP”) team in the Southwest

2 Policing District. The purpose of the POP team is to investigate

3 locations that generate a large amount of police calls for

4 service. The POP team tries to get to the root cause of those

5 issues to come up with some permanent solutions.

6

148. Captain Garner supervises approximately 110 employees.

7 The geographic boundaries of his district include the northern

8 boundary of Shields Avenue, the southern boundary of North

9 Avenue, the eastern boundary of First Street and west to the City

10 limits.

11

149. Captain Garner’s jurisdiction includes a lower

12 socioeconomic profile.

13

150. Through his work, Captain Garner has interacted with

14 many of the homeless service agencies including the Poverello

15 House, Marjorie Mason Center, the Rescue Mission, and Naomi’s

16 House among others.

17

151. Throughout the POP team’s clean-up efforts, Captain

18 Garner has been present at over half of the clean-ups in the

19 City. He has inspected the temporary shelters and interacted

20 with people living in the shelters.

21

152. Captain Garner testified that the Fresno Police

22 Department did not direct the City sanitation workers in the

23 clean-up efforts, particularly as to what property to take or

24 destroy.

25

153. Captain Garner testified that the Fresno Police

26 Department was present at the June 2006 clean-up and other clean-

27 ups for the sole purpose of preserving the peace.

28 ///

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1

3. The City of Fresno Sanitation Department

2

154. The homeless clean-up efforts are not initiated by the

3 City Sanitation Department, according to Phillip Weathers.

4

155. The Sanitation Department is contacted by Specialist

5 Wallace, an officer with the POP unit who is in charge of the

6 City’s clean-up efforts.

7

156. Phillip Weathers (“Weathers”), is a Community

8 Sanitation Supervisor One with the City of Fresno Sanitation

9 Department. He is in charge of most of the clean-ups.

10

157. To prepare for a clean-up, Mr. Weathers has a meeting

11 with staff to discuss the particulars of what location will be

12 cleaned, to ensure the staff has the necessary safety equipment,

13 and to review procedures with them.

14

158. In 2006, the City Sanitation Department was involved

15 in approximately eight clean-up efforts.

16

159. Mr. Weathers has been present for most of the clean-up

17 efforts.

18

160. For each of the clean-up efforts Mr. Weathers

19 supervises between eight and fifteen sanitation workers on-site.

20

161. The sanitation workers have the equipment necessary to

21 pick up large debris and trash but are not trained to handle and

22 dispose of bodily waste or other hazardous material present at

23 the temporary shelters.

24

162. Typically the clean-up crew arrives at the site

25 between 8:30 a.m. and 9:00 a.m. so that homeless residents become

26 aware of Sanitation Department employees’ presence and so they

27 know that clean-up efforts will take place.

28

163. Before starting the clean-up, Mr. Weathers testified

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1 that the sanitation workers wait for instruction from the Fresno

2 Police Department on how to proceed with the clean-up efforts.

3

164. This testimony contradicts Captain Garner’s testimony

4 that the extent of involvement by the Fresno Police Department in

5 the clean-up efforts is to “preserve the peace,” and that the

6 Sanitation Department determines how to implement clean-up and

7 what property to seize and destroy, not the police.

8

165. Mr. Weathers testified that as the sanitation workers

9 walk to a clean-up site, if there is a person who is gathering

10 their belongings, the workers wait until all the belongings are

11 gathered before they begin disposing of the debris. He did not

12 testify that City Police wait for homeless to take their property

13 during a clean-up.

14

166. Once individuals finish gathering their belongings,

15 the sanitation workers begin to dispose of any material left

16 behind.

17

167. It normally takes sanitation workers an entire day to

18 complete the clean-up efforts because they have to wait for

19 homeless people to gather their belongings.

20

168. Mr. Weathers has never asked his employees to

21 inventory, take possession of, or store any property that is

22 found during the clean-ups.

23

169. Mr. Weathers estimates that if clean-ups included the

24 inventory, possession, and storage of homeless peoples’ property,

25 it would take a week to complete each clean-up.

26

170. City sanitation workers do not go through large

27 containers of property, shopping carts, and boxes that are left

28 unattended in the encampments during clean-up efforts.

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1

171. According to Mr. Weathers, the Fresno City Sanitation

2 Department does not have the budget, the resources, or the land

3 to store the property of the homeless.

4

172. Mr. Weathers testified the City Sanitation Department

5 workers generally follow what the police department tells them to

6 do. The City Sanitation Department follows the direction of the

7 Fresno Police Department during clean-up efforts.

8

173. Under Mr. Weathers’ supervision, he has seen the City

9 Sanitation Workers destroy perfectly functional shopping carts

10 during the City’s clean-up efforts because they are “trash.”

11

174. The shopping carts are destroyed by the sanitation

12 workers according to direction of the Fresno Police Department.

13

175. Mr. Weathers testified the City Sanitation Department

14 does not make an independent judgment about discarding the items,

15 including shopping carts, during their clean-up efforts.

16

176. Mr. Weathers testified the Fresno Police Department

17 directs what goes into the garbage trucks, contradicting Captain

18 Garner.

19

177. Mr. Weathers has also seen perfectly functional

20 bicycles destroyed during the clean-up efforts.

21

178. The bicycles were destroyed because they were

22 abandoned and therefore are “trash.”

23

179. The bicycles were considered abandoned because there

24 was no owner present and were therefore considered trash.

25

180. Perfectly functional bicycles with no owner present

26 are thrown into the City garbage truck and destroyed per the

27 instruction of the Fresno Police Department.

28

181. Mr. Weathers admitted during testimony that “there are

41

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1 functionally ‘great things’ out there [among] the ‘trash.’ But

2 we still destroy it.”

3

182. The City sanitation workers have also destroyed neat

4 looking tents, where an owner obviously lives inside, but was not

5 home at the time of the clean-up efforts.

6

183. The City Sanitation Department does not provide any

7 opportunity or ability for the owner of the property to come back

8 and reclaim the property. Once the property is destroyed, it is

9 gone.

10

184. In order to salvage the property without discarding or

11 destroying it, the clean-up crew would need trucks to move and

12 store the property.

13

185. According to Mr. Weathers, while the City of Fresno

14 owns a number of trucks, it has no trucks available to assist

15 sanitation workers in the proper inventory, storage, and tagging

16 of homeless property.

17

186. To obtain trucks from different City divisions or

18 departments, or for the City to rent trucks, would result in

19 additional “budget” costs to the City.

20

187. Mr. Weathers has not investigated the cost of renting

21 a truck to assist in clean-up efforts.

22

188. Mr. Weathers does not know of anyone else who has

23 investigated the cost of renting a truck to assist in clean-up

24 efforts.

25

189. Mr. Weathers has not made any investigation to see

26 what other cities do to store the property of the homeless.

27

190. Neither Mr. Weathers nor the City Sanitation

28 Department tried to figure out who used the destroyed property,

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1 including the functional bicycle.

2

191. For each clean-up, the Sanitation Department usually

3 prepares a week in advance to coordinate the equipment, the

4 personnel, Mr. Weathers’ time, and the time of the Fresno Police

5 Department.

6

192. A week’s time is long enough to obtain the services of

7 a flatbed truck to assist in the clean-up efforts.

8

193. The Fresno Police Department is always on-site during

9 the sanitation workers’ clean-up efforts.

10

11 I. Reverend Harris’ Volunteer Clean-Up

12

194. The volunteers in Rev. Harris’ group ranged in age

13 from five years old to sixty years old and included the

14 Reverend’s youngest son, as well as several youth.

15

195. This group was also organized partly out of concern

16 and in response to the clergies and community members’ witnessing

17 the police’s response to the temporary shelters on television.

18

196. On the day before the clean-up effort occurred,

19 Reverend Harris spoke with people living in the temporary

20 shelters to give them notice and request their assistance. The

21 following day, his crew of volunteers showed up with shovels and

22 rakes. They cleaned the areas from E Street to the Freeway 99

23 entrance. The homeless individuals living in the temporary

24 shelters also assisted in clean-up.

25

197. During his clean-up, Reverend Harris testified that he

26 did not find any unsanitary conditions or drug paraphernalia.

27 Also, he testified that he did not feel a threat to his health or

28 the health of his volunteers and did not feel the need to wear

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1 biohazard suits.

2

198. Reverend Harris testified that it was not necessary to

3 destroy any property in these clean-up efforts.

4

199. Reverend Harris’ volunteers have the ability to assist

5 in tagging and identifying property so it would not have to be

6 destroyed.

7

200. Reverend Harris did not know about and was not invited

8 to the community meetings organized by Captain Garner. Reverend

9 Harris testified that he was shocked to hear about the meetings

10 because he feels that his organization is one of the most visible

11 in the communities.

12

13 J. The City of Fresno’s Policy for the Disposal of Homeless

14

Property

15

201. Specialist Wallace is a Problem Oriented Policing

16 (“POP”) Unit officer in the City of Fresno’s southwest district.

17

202. As a POP officer, Specialist Wallace responds to

18 neighborhood disturbances, drugs, alcohol, homeless problems, and

19 special events in the downtown area.

20

203. When Specialist Wallace gets a complaint involving the

21 downtown area, he will go out onto the streets to examine the

22 problem and to develop a solution for the problem.

23

204. Over the last five years he has frequently experienced

24 complaints regarding the homeless in downtown Fresno.

25

205. These complaints have caused him to become familiar

26 with the downtown area and its homeless individuals.

27

206. In response to the complaints, he set up clean-ups

28 throughout the downtown area.

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1

207. Residents of the homeless temporary shelters are

2 familiar with Specialist Wallace as a result of his frequent

3 responses to the complaints involving homeless people in Fresno.

4

208. In responding to the complaints, Specialist Wallace

5 does not arrest the homeless individuals. Instead he attempts to

6 come up with ideas of what to do in order to alleviate the

7 problems involving the homeless community.

8

209. Residents of the temporary shelters ask Specialist

9 Wallace where they can relocate.

10

210. Specialist Wallace directs them to the local service

11 providers, like the Poverello House and the Fresno Rescue

12 Mission, but he does not direct them to another piece of vacant

13 property in the City.

14

211. During the clean-up efforts Specialist Wallace never

15 makes an attempt to try and locate the owners of the property

16 located within the areas of the clean-up effort.

17

212. After the residents leave the temporary shelters

18 Specialist Wallace testified that garbage and litter are all that

19 is left behind.

20

213. Sometimes there are shopping carts that are left

21 behind.

22

214. According to Specialist Wallace’s testimony, he gives

23 notice to homeless residents that they have to be with their

24 property so the clean-up crew knows that the property is theirs.

25

215. Specialist Wallace knows that homeless people store

26 their possessions in shopping carts.

27

216. These shopping carts contain personal property of

28 homeless individuals.

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1

217. Specialist Wallace knows of no rule, code, or

2 regulation of the City that authorizes the treatment of abandoned

3 property as trash. It was his idea.

4

218. There is no statute in the State of California that

5 provides for designation of abandoned functional property as

6 trash.

7

219. Per Specialist Wallace’s clean-up policy, if homeless

8 property is unattended at the time of the clean-ups, it is

9 treated as abandoned and trash and the City will take the

10 property and dump it into the garbage truck for destruction.

11

220. Specialist Wallace is the originator of this policy

12 that define unattended homeless property as abandoned and trash.

13 He alone devised and implemented this rule as an “out of the box”

14 solution to respond to complaints about Fresno’s homeless.

15

221. Shopping carts full of property and personal effects

16 are destroyed even if an advocate who is not the owner of the

17 shopping cart attempts to assert control over the cart on behalf

18 of the homeless owner.

19

222. Under the clean-up policy, if someone has permission

20 to place the property on the location where it is found it may

21 still be considered abandoned and treated as trash.

22

223. There are no written rules that Specialist Wallace is

23 aware of that govern the clean-ups by the City of Fresno.

24

224. The City of Fresno is the only entity that Specialist

25 Wallace knows of that conducts these type of clean-up efforts.

26

225. While other volunteer and service organizations have

27 conducted clean-ups, Specialist Wallace does not know whether any

28 of these organizations disposed of shopping carts or the property

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1 of the homeless.

2

226. Captain Garner was unaware of any code or rule that

3 provided for immediate seizure and destruction of the homeless’

4 property.

5

227. Mr. Souza also testified that it is City policy that

6 if property is left unattended on the day of a clean-up, it is

7 presumed to be abandoned and will be disposed of as trash.

8

228. According to Mr. Souza, it is consistent with City

9 practice that sanitation workers will remove unattended tents and

10 shopping carts because they are considered trash after notice of

11 the clean-up has been provided.

12

13 K. The Fresno Shopping Cart Ordinance

14

229. The City of Fresno passed an ordinance in 2006

15 governing the collection of stray shopping carts in the City.

16

230. If the City of Fresno takes possession of unattended

17 shopping carts as part of a clean-up effort, the shopping cart

18 ordinance requires an effort be made to return the cart to its

19 owner.

20

231. The Fresno Police Department conducted an operation in

21 October 2006 to collect stray shopping carts under the City’s

22 shopping cart ordinance.

23

232. Captain Garner identified the officers who carried out

24 the confiscation of the shopping carts, as members of the Fresno

25 Police Department.

26

233. The Fresno Police Department confiscated shopping

27 carts on October 8, 2006, under the authority of the shopping

28 cart ordinance. Captain Garner does not have knowledge who the

47

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1 shopping carts were confiscated from.

2

234. The shopping carts were found in the southwest

3 policing district and the officers who confiscated the shopping

4 carts had Captain Garner’s approval to confiscate them under the

5 shopping cart ordinance.

6

235. The shopping cart ordinance, however, was not in

7 effect when the officers confiscated the shopping carts on

8 October 8, 2006.

9

236. That ordinance did not go into effect until October

10 27, 2006.

11

237. Captain Garner does not know what happened to the

12 carts confiscated on October 8, 2006. Captain Garner does not

13 know if the carts were returned to anyone. Captain Garner did

14 not follow up to find out.

15

238. The Fresno Police Department did not have a procedure

16 in place of notifying persons from whom carts were taken that

17 there is a reclamation procedure for the carts.

18

239. Captain Garner knows that the carts were not taken

19 into custody by the Fresno Police Department or booked into

20 evidence.

21

240. Under the shopping cart ordinance it is City policy

22 that if a cart is collected by the City and it has the name of

23 the owner, the owner is notified about the missing cart.

24

241. City personnel are not used to return the shopping

25 cart to its rightful owner.

26

242. The owner of a shopping cart is responsible for

27 retrieval of the shopping cart.

28

243. No evidence was offered that any of the shopping carts

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1 were actually retrieved by their owners.

2

3 L. Standing Order 3.18.12

4

244. Standing Order 3.18.12 is an order that regulates the

5 Fresno Police Department’s handling and booking of found

6 property.

7

245. If property is found in the City of Fresno, Order

8 3.18.12 applies to it.

9

246. There is no other order governing the handling and

10 booking of property as evidence.

11

247. A shopping cart could be considered a large item

12 subject to the provisions of Order 3.18.12.

13

248. Under this Order, the Fresno Police Department has a

14 procedure and policy that provides for taking in large pieces of

15 property.

16

249. A bicycle found on the street in the City of Fresno

17 would fall under Order 3.18.12.

18

250. Captain Garner agreed that it would have been possible

19 to store a functional bicycle found on the street under Order

20 3.18.12.

21

251. Captain Garner claims that in order for the Fresno

22 Police Department to have stored a functional bicycle destroyed

23 during a clean-up under Order 3.18.12, they needed a “legal”

24 reason to take custody of the bicycle.

25

252. Captain Garner testified that some legal reasons

26 include that the bicycle was not abandoned, if it is evidence of

27 a crime, or if it was reported as stolen. He testified that none

28 of those reasons applied to the homeless clean-ups.

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1

253. There was nothing physically preventing the Fresno

2 Police Department from stopping destruction of a functional

3 bicycle other than Captain Garner’s perception that they did not

4 have a “legal” reason to take it.

5

254. Under provision 4.07 of Ordinance 3.8.12 there is

6 specific language for storing vendor carts.

7

255. Shopping carts are not excluded from Order 3.8.12.

8

256. Under the Order there is also a provision for holding

9 items of which the City of Fresno takes possession.

10

257. When the Fresno Police Department confiscates an item,

11 it is held for safe-keeping for a certain period of time.

12

258. However, the property taken during the clean-up

13 efforts in this case, including functional bicycles and shopping

14 carts, is dumped into a garbage truck and immediately destroyed.

15

259. As a result, none of the owners of the property had

16 the opportunity to make a claim for the return of their property.

17

260. The destruction of the property occurred during

18 Captain Garner’s watch.

19

261. Captain Garner testified that Standing Order 3.8.12

20 applies to property that the Fresno Police Department books, not

21 property that is destroyed.

22

262. The Fresno Police Department does not book property

23 that is destroyed.

24

263. Whether property is booked or destroyed under the

25 ordinance is within the discretion of the Fresno Police

26 Department.

27

264. The failure to apply recognized law and City rules and

28 regulations of the City is without justification.

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1 M. Further Evidence of The Destruction of Homeless Property

2

Under the City’s Rule.

3

1. General.

4

265. Lisa Apper has heard of homeless individuals who

5 recycle and while at the recycling place have had their things

6 taken by officers who claim to be enforcing a shopping cart

7 ordinance. However, the entire property, not just the shopping

8 cart, is taken and destroyed.

9

266. The encampments that the City has been dealing with

10 over the course of the last five months involved a range of 2

11 people to about 40 or 50 people.

12

267. Captain Garner’s general testimony that if a homeless

13 person wants to keep their property or take it with them, they

14 are allowed to do so is contradicted by specific testimony of

15 Apper, Williams, Kincaid, Thomas, Nelson, Garcia, and Deatherage

16 that they were not permitted to retain their property, all of

17 which was destroyed.

18

268. Some of the clean-ups that Captain Garner has

19 witnessed have been completed in an hour or two. Other clean-ups

20 take all day. The ones that take longer are usually because the

21 owners of the property are given the opportunity to move or

22 relocate their property and that takes some time.

23

269. The temporary shelters are normally located on private

24 property or property owned by another governmental agency.

25

270. Captain Garner is not aware of any disciplinary action

26 taken against the officers that were present during the clean-ups

27 that are the subject of this litigation.

28

271. The police department does not have a vested interest

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1 in where homeless people go once they are asked to leave a

2 location based on complaints by property owners, as long as the

3 homeless go somewhere that they have a legal right to be.

4

272. During the clean-up efforts Captain Garner testified

5 he directed the homeless to the local shelters and service

6 providers. There was no other testimony on this subject.

7

273. Captain Garner did not direct the homeless to relocate

8 to any other piece of property, sidewalk, or freeway underpass.

9

274. The City of Fresno has no policy which allows for

10 owners of the unattended property to reclaim their property once

11 it is taken by the City during a clean-up effort.

12

275. Destruction of the homeless’ property is immediate and

13 irrevocable.

14

276. Specialist Wallace admitted that if he came across a

15 tent with little to no debris and obvious signs that a person

16 lives there, he would still treat the tent as trash if the tent

17 is unattended and the resident was notified that a clean-up would

18 occur. To the contrary, testimony showed that a bulldozer was

19 stopped just before razing a tent that had identification hanging

20 on the tent and was occupied by a man.

21

22

2. 2004 Clean Up Effort.

23

277. The clean-up effort in early 2004 involved an

24 encampment with a population of approximately 150 to 200 people.

25

278. Captain Garner observed the City Sanitation crews

26 perform their duties and interact with homeless individuals.

27

279. Captain Garner testified that every person who

28 remained at the clean-up site was given an opportunity to leave

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1 with whatever they wanted to take. The homeless individuals were

2 then given the opportunity to pick up whatever they wanted to

3 take with them and left the area.

4

280. After the homeless individuals cleared the area there

5 was still plenty of debris left behind that was cleaned up by

6 City sanitation workers.

7

281. This practice is consistently followed.

8

282. Captain Garner has never witnessed an instance where

9 an individual had their property destroyed over their

10 protestations. This is directly contradicted by Ms. Apper’s

11 testimony that he threatened her with arrest if she tried to

12 retrieve shopping carts for Ms. Thomas.

13

14

3. July 22, 2006 Clean Up.

15

283. Lisa Apper, a homeless advocate who works with the

16 Catholic Charities, first learned of the July 22, 2006, clean-up

17 from a homeless individual in one of her soup lines. However,

18 Ms. Apper testified that there is confusion with the notice

19 because sometimes individuals are given notice of a clean-up and

20 the clean-up does not occur on the noticed time or date.

21

284. At some later date, Ms. Apper saw a printed notice of

22 the clean-up effort to occur on July 22. The written notice

23 pertained to a piece of property on the west side of E street.

24

285. The clean-up effort took place on E street. She

25 arrived at 7:45 in the morning on July 22.

26

286. By the time Ms. Apper arrived, the City crews were

27 already present at the scene and making their way across to the

28 west side of the street toward the temporary shelters. The City

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1 crews were equipped with garbage trucks and bulldozers.

2

287. In spite of its well known experience of working with

3 the homeless in Fresno, the Catholic Worker, Ms. Apper’s

4 organization did not receive notice of the clean-up efforts by

5 the police.

6

288. Ms. Apper testified that whatever verbal notice is

7 given by the City is confusing and often uncertain. The City

8 says that they will come to clean-up on a given date or a given

9 time and they do not come on the noticed time or date.

10

289. Among the items to be disposed of on July 22 were

11 three or four shopping carts that Ms. Apper attempted to save and

12 a tent with a person’s identification card hanging from the

13 zipper.

14

290. During the clean-up efforts Ms. Apper had an exchange

15 with Specialist Wallace of the Fresno Police Department.

16

291. Specialist Wallace informed Ms. Apper that he was

17 there to dispose of the abandoned property and trash.

18

292. Ms. Apper informed Specialist Wallace that the items

19 were not trash and were not abandoned.

20

293. On July 22 there were several unattended shopping

21 carts present during the clean-up efforts.

22

294. Ms. Apper verbally attempted to claim possession of

23 four shopping carts that she was watching for the owner.

24

295. Ms. Apper was standing beside the carts, with her grip

25 on one of the carts.

26

296. Specialist Wallace had a grip on the same cart Ms.

27 Apper held, to prevent her from pulling the cart away.

28

297. Ms. Apper told Specialist Wallace that the carts had

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1 owners.

2

298. Specialist Wallace knew that the carts had owners and

3 saw people’s possessions stacked up neatly in each cart.

4

299. In spite of this, City workers picked up all but one

5 cart that Ms. Apper was holding and threw the carts in the back

6 of the garbage truck, crushing them.

7

300. After each of the carts was destroyed, except the one

8 cart that Ms. Apper saved, Specialist Wallace went around the

9 corner to Santa Clara street, across the street from the

10 Poverello House, and destroyed more carts.

11

301. Specialist Wallace did not keep count of how many

12 carts were destroyed that day.

13

302. No record of what property was destroyed was made by

14 the City.

15

303. During the June 22, 2006, clean-up, Specialist Wallace

16 was also informed by a “keeper” of the carts that the owners of

17 the carts were inside the Poverello house eating breakfast.

18

304. Despite this information, the clean-up crews destroyed

19 the carts.

20

305. Specialist Wallace did not make an attempt to find out

21 whether the owners of the carts were, in fact, at the Poverello

22 house eating.

23

306. It is not unusual for homeless people to store their

24 belongings in a shopping cart. Life on the street is precarious

25 and the homeless must have their possessions ready to move at a

26 moment’s notice.

27

307. Ms. Apper only saved one of the four shopping carts on

28 July 22, 2006.

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1

308. Specialist Wallace did not attempt to only throw away

2 the items in the cart and salvage the cart. The whole contents,

3 including each cart, were thrown into the garbage truck.

4

309. Each of the carts that was destroyed contained several

5 personal items including boxes, blankets, sleeping bags, stuffed

6 animals, a broom and a dust pan.

7

310. Ms. Apper knew the items were not abandoned. The

8 property was not disheveled and there was no trash. The blankets

9 were neatly folded. The carts were kept orderly. Everything was

10 neat and there was no sign of trash or neglect.

11

311. The tent present at the scene on July 22 was also

12 thrown away. There was no attempt to salvage the identification

13 card hanging from the zipper even though it was readily visible

14 to Ms. Apper and the City clean-up crew.

15

312. There was no attempt made to check the identity of the

16 person on the identification card before the tent was thrown into

17 the dumpster.

18

313. Captain Garner was also present at the scene on July

19 22, 2006 and was the commanding officer.

20

314. Captain Garner did not do anything to prevent any

21 items from being destroyed.

22

315. Captain Garner told Ms. Apper that she was obstructing

23 police business because she was trying to save the carts. He

24 told her that she could go to jail. This contradicts his

25 testimony and the City’s position that persons who claimed

26 property at clean-ups were always permitted to take their

27 property.

28

316. There was no effort by the clean-up crews to sort out

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1 the valuable items from items that would be considered trash once

2 property was thrown into the dump truck.

3

317. During the July 22, 2006, incident some people

4 attempted to save as much of their property as they could by

5 carrying it from the west side of E street where the clean-up was

6 occurring to the east side of E street.

7

318. However, after cleaning the west side of E street, the

8 bulldozers then moved towards the east side of E street to clean

9 that up as well. People were surprised because they thought that

10 their property would be safe on the east side of E Street.

11

319. One of the homeless individuals who had her shopping

12 cart thrown away had only left it temporarily unattended with the

13 permission of Specialist Wallace. She had gone to pick up her

14 recycling.

15

320. The east side of E street does not contain any

16 residential housing. It only contains a strip of dirt road.

17

321. Ms. Apper offered to remove the belongings herself and

18 haul the property away but was not allowed to because the

19 officers told her it was trash and that they would discard it

20 themselves.

21

322. Captain Garner does not deny that the destruction of a

22 perfectly functional bicycle was part of a clean-up effort that

23 the Fresno Police Department was in charge of in July 22, 2006.

24

323. Captain Garner never told Specialist Wallace or any

25 other person at the clean-up effort to cease destruction of the

26 shopping carts.

27

324. It is Captain Garner’s testimony that if there is

28 property that is abandoned and is collected by the City’s

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1 sanitation workers it will likely be destroyed by them.

2

3

4. May 25, 2006 Clean Up.

4

325. Neither Ms. Apper nor the Catholic Worker received

5 notice of the May 25, 2006, clean-up.

6

326. Ms. Apper found out about this clean-up after

7 receiving a phone call from a friend the morning that it was

8 scheduled to occur. There was, however, a notice posted in front

9 of the Poverello House that gave information that anyone with a

10 shopping cart or sleeping between C & H and Fresno St. and Church

11 St. would be subject to citation and/or jail. As a result, Ms.

12 Apper spent a few nights out on the street to see if that would

13 happen but it did not.

14

327. The notice was from the police department but it did

15 not refer to any penal code section.

16

328. On this date, Ms. Apper arrived at the clean-up site

17 at 7:30 in the morning.

18

329. The City crews were on the northwest corner of Fresno

19 Street and E Street.

20

330. Within ten minutes of Ms. Apper’s arrival the

21 bulldozers came across the street with a City crew to clean up.

22

331. Ms. Apper positioned herself between the bulldozer and

23 one of the tents to prevent the clean-up crew from destroying it.

24

332. The officers on the scene expressed concern for her

25 personal safety and instructed her to move.

26

333. Eventually the bulldozer went around her and proceeded

27 to clean up the remainder of the tents and property on the scene.

28

334. After the bulldozer went around Ms. Apper and the tent

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1 she stood in front of, the tent started to move and a person

2 emerged from within the tent.

3

335. No one was aware that a person was in the tent because

4 the person was asleep underneath several blankets.

5

336. Had Ms. Apper not stood in front of the tent the

6 person would have been scooped up along with the tent and his

7 personal safety would have been at risk.

8

337. Clean-up crews were not checking inside the tents

9 before they seized and destroyed them.

10

338. There was no attempt on this date to separate valuable

11 property from property that would be considered refuse. Owners

12 of the property were not given a chance to retrieve their

13 property.

14

15

5. August 26, 2006 Clean Up.

16

339. This clean-up effort took place on E Street as it

17 turns into Santa Clara.

18

340. On this date, after the clean-up concluded, the area

19 that was cleaned was fenced off with a temporary fence that had

20 razor wire.

21

341. The purpose of the fence was to prevent homeless

22 people from placing their temporary shelters on an empty strip of

23 land along E Street.

24

342. A homeless man named Walter, who was wheelchair bound,

25 resisted the relocation of his tent.

26

343. Captain Garner spoke with Ms. Apper and the Catholic

27 Worker in hopes of them convincing Walter to move so that he

28 would not be taken to jail.

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1

344. Walter had a dog with him which made it difficult to

2 house him at any mission since the missions do not allow dogs.

3 Captain Garner arranged to relocate Walter and all of his

4 belongings to a new location on H Street.

5

345. The temporary fence built on E Street has since been

6 replaced with an eight foot fence.

7

346. There is no evidence of a written notice for the

8 August 26, 2006, clean-up effort.

9

347. Ms. Apper testified that as a result of the clean-up

10 efforts and resulting relocation, homeless people are less

11 inclined to improve their homeless situation because the clean-

12 ups make them feel unwanted and unimportant. According to Ms.

13 Apper, taking away and destroying a homeless person’s last items

14 of personal property causes a lot of stress and anxiety because

15 they are left with nothing and have to accumulate new belongings

16 from scratch.

17

18 N. The City of Fresno’s Concerns.

19

1. Health and Safety Concerns.

20

348. Based on her knowledge of the homeless and their

21 shelters and property, Ms. Apper believes it was possible for the

22 City workers to move the tents and the rest of the property

23 without facing a health and safety threat.

24

349. Upon looking inside the temporary shelters, Captain

25 Garner has seen a lot of collected material such as cardboard

26 boxes and materials that have been abandoned. Captain Garner has

27 also seen evidence of drug use, human feces, and other hazardous

28 materials that they are concerned about.

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1

350. Captain Garner has made arrests of homeless people who

2 are under the influence of narcotics, robbery and sexual assault,

3 and has seen evidence of drug use in the encampments themselves.

4

351. People who live near the temporary shelters have also

5 observed drug use and criminal activities.

6

352. Out of the concern for the criminal activity and drug

7 use that was reported from these temporary shelters, Captain

8 Garner contacted several service providers in the City to assist

9 in addressing these problems. The meeting took place in Captain

10 Garner’s office.

11

353. Captain Garner has personal knowledge that at least

12 one sanitation worker was pricked by a hypodermic needle that

13 stuck him while he was cleaning up an area like this. This was

14 the only reported injury in fifty sweeps.

15

354. The clean-up crew is not equipped with the proper

16 protective gear that would protect them from things like a

17 hypodermic needle stick.

18

355. City sanitation workers are not trained and do not

19 have the equipment to inventory, take possession of, or store

20 individual items that are found during the clean-ups.

21

356. Mr. Weathers believes that to inventory such material

22 would require sanitation workers to physically sort through each

23 individual item, and potentially become exposed to needle pricks,

24 human tissues, and other hazardous loose debris.

25

357. As a City Sanitation Supervisor, Mr. Weathers is not

26 willing to direct his employees to go into that sort of hazardous

27 situation without the proper training and equipment.

28

358. According to Mr. Weathers, the City of Fresno

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1 Sanitation Department does not have the budget to train the

2 sanitation workers to conduct such clean-ups.

3

359. Such training would result in increased costs to the

4 City.

5

360. The City of Fresno Police Department has methods and

6 means for dealing with hazardous materials. Fire Department

7 personnel are also trained in the hauling, storage, and disposal

8 of hazardous substances. (Souza).

9

361. In the regular course of their duties, the Fresno

10 Police come across drug paraphernalia such as hypodermic needles

11 and drug labs on a regular basis.

12

362. The police have a duty in any criminal case where they

13 deal with suspected crime and criminals to identify, take custody

14 of, and to preserve evidence of crime, which includes physical

15 evidence, such as narcotics, paraphernalia, drug labs, weapons

16 and other property associated with criminal activity.

17

363. The Fresno City Fire Department and, in some

18 instances, the City of Fresno Police Department are responsible

19 for dealing with hazardous materials.

20

364. Members of both the Fire and Police Department receive

21 regular training in the handling, storage, disposal, and clean-up

22 of hazardous materials.

23

365. The City of Fresno has agencies and departments that

24 regularly deal with hazardous materials. The Souza testimony

25 belies the City’s claims it has no expertise, personnel, or

26 resources to deal with the “hazardous materials” of the homeless.

27

366. Specialist Wallace testified that the Fresno Police

28 Department has never attempted to remove hazardous materials of

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1 the quantities similar to that left behind during the homeless

2 clean-up efforts. He further testified Fresno Police Department

3 does not have the resources to do this.

4

367. Specialist Wallace has never worked on hazardous

5 materials issues.

6

368. Specialist Wallace is concerned about the health and

7 sanitation threats posed by the temporary shelters and the

8 exposure to those threats during the clean-up efforts.

9

369. Specialist Wallace is not willing to sift through the

10 personal effects of homeless individuals during the clean-up

11 efforts. Clean-up crews do not wear hasmat protective suits

12 during their clean-ups nor any other special equipment to conduct

13 the clean-ups aside from gloves and dust masks.

14

370. The evidence establishes that the City has personnel

15 trained and competent to deal with hazardous materials, but chose

16 not to use this capability to deal with the property of the

17 homeless.

18

19

2. Budgeting Cost and Resource Concerns.

20

371. Mr. Souza has conducted a preliminary investigation

21 into whether the City has the ability to inventory and take

22 possession of City property.

23

372. At this point in time Mr. Souza is not willing to

24 require staff to sort through and store homeless property at the

25 clean-up sites.

26

373. Mr. Souza testified there is no location in the City

27 of Fresno that is appropriate for the storage of the homeless

28 property.

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1

374. In his investigations Mr. Souza looked into whether

2 the City of Fresno has the staffing resources, the location, and

3 the ability to monitor an inventory process for the property of

4 the homeless.

5

375. Mr. Souza concluded that the City does not have the

6 resources to conduct such an inventory.

7

376. Mr. Souza testified the City could, if it chose to,

8 reallocate resources to implement an inventory and storage of

9 homeless property.

10

377. Mr. Souza estimated the cost to the City of

11 inventorying property at approximately $50,000. Currently the

12 cost of the clean-ups is approximately $2,000 to $4,000.

13

378. Mr. Souza testified that a spreadsheet showing the

14 City’s cost analysis was prepared in his investigation; no such

15 spreadsheet was admitted into evidence.

16

379. The city does not have a budget for the costs

17 associated with implementing an inventory process for homeless

18 property.

19

380. The City is also concerned about risk management and

20 increased litigation costs resulting from the potential

21 mishandling of the property, were they to inventory and store,

22 rather than destroy, the property.

23

381. The City of Fresno has an annual budget of $856

24 million dollars.

25

382. The City has a constant process of budgeting

26 throughout the year.

27

383. There have been frequent instances throughout the year

28 when the City had to reallocate funds to provide for an

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1 unanticipated cost.

2

384. Mr. Souza testified that it would be a problem for the

3 City of Fresno to take possession and store the property of the

4 homeless.

5

385. Captain Garner also testified that the City does not

6 have the capacity to collect the type of property that is

7 typically discovered in an abandoned shopping cart. Most of the

8 time the officers come across the carts and they are filled with

9 items that do not fit in the back of a police car or the back of

10 a police pick-up truck. The City does not have the storage

11 capacity for it. It would be a burden.

12

386. There are at least two trucks available in the City of

13 Fresno that could be used to transport the property of the

14 homeless.

15

387. The City of Fresno Redevelopment Agency has vacant

16 land but Mr. Souza has not inquired as to whether such land could

17 be used for storage of homeless property.

18

388. Mr. Souza has not studied alternative approaches by

19 other cities to problems created by the property of the homeless.

20

389. The City of Fresno is also eligible for and receives

21 community development block grants from the federal government.

22

390. The use of these grant funds is within the discretion

23 of the City Council.

24

391. The City of Fresno has not applied for community block

25 grants or any other type of grants in the last five years to

26 address any issues of the homeless.

27

392. The City also receives an annual grant of 8 million

28 dollars from the U.S. Department of Housing and Urban

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1 Development.

2

393. This grant can be used for any project or activity

3 impacting high poverty areas. It is used for community policing.

4

394. None of the HUD grant money has been used in the

5 homeless clean-up efforts.

6

395. All of the HUD grant money has been allocated for the

7 2006-2007 year.

8

396. No evidence was offered as to what specific programs

9 that money was allocated for.

10

397. Mr. Souza testified that the HUD money was used for

11 general housing projects, community policing operations, code

12 enforcement, and specific projects that eligible community groups

13 apply for.

14

398. In order to reallocate any of the $8 million in HUD

15 grant funds during the fiscal year, the City must submit an

16 application for modification to the Department of Housing and

17 Urban Development.

18

399. The appropriation that the City of Fresno has adopted

19 for the current fiscal year does not include any amount for the

20 costs of collecting and storing the property of the homeless.

21

400. The City will receive another $8 million HUD grant

22 next year.

23

401. If the City chose, it could in the next fiscal year,

24 include an allocation to specifically address issues that arise

25 regarding homeless temporary shelters throughout the City.

26

402. The City of Fresno does not identify any place where

27 the homeless can go after a clean-up. The homeless are left to

28 determine that on their own.

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1

403. Mr. Souza has been informed about complaints to the

2 City regarding the temporary shelters through meetings with staff

3 and other internal City communications.

4

404. No minutes of these meetings were submitted into

5 evidence.

6

7 O. The Balance Of Hardships.

8

405. The type of property of the homeless that the City has

9 confiscated and immediately destroyed pursuant to its policy and

10 practice includes property that is unique and irreplaceable, for

11 which monetary damages cannot compensate and are not a full and

12 adequate remedy. Examples of this property include the shelter

13 of homeless individuals, their medications, identification

14 documents, other important documents, irreplaceable family

15 heirlooms, photos, birthday cards, personal letters, pets, a lock

16 of a child’s hair, and an urn containing the remains of a

17 grandchild.

18

406. The City’s destruction of the property of the homeless

19 has a devastating effect on the dignity of homeless people, who

20 live a precarious existence and then are knocked down even lower

21 from this destruction. (RT vol. II, 126, Nov. 16, 2006)

22 (Kincaid).

23

407. The homeless experience severe, lasting mental anguish

24 due to the destruction of their remaining possessions and the

25 Court finds that the adverse impact on the sense of dignity and

26 hope of the homeless, and correspondingly their ability to

27 improve their condition, is substantial. (See RT vol. II, 17,

28 47, 91, 127, Nov. 16, 2006) (Tomas, Deatherage, Williams and

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1 Kincaid).

2

408. The City’s policy of seizure, confiscation, and

3 immediate destruction of the property of the homeless, including

4 clothes and hygiene items, affects a homeless person’s ability to

5 obtain and maintain employment which, in turn, is important to

6 their effort to end their condition of homelessness. (RT vol.

7 II, 43, 93, Nov. 16, 2006) (Deatherage and Williams).

8

409. The City’s destruction of the property of the

9 homeless, including shelter, blankets, clothes, food and

10 medication, makes it more difficult for the homeless to survive.

11

410. The City’s destruction of the property of the homeless

12 under the conditions in evidence has been undertaken without

13 regard to legal analysis and the City provided no specific legal

14 authority for its policies and practices at dispute in this case.

15

411. On August 5, 2006, Rev. Floyd Harris organized a group

16 of volunteers to clean and weed the area of E Street and Ventura,

17 where several homeless people lived. The volunteer group

18 included homeless members of the community. During the clean-up,

19 the volunteers found no feces or drug paraphernalia in the area.

20 The volunteers cleaned the area without destroying any property.

21 (RT vol. I, 128-36, Nov. 7, 2006; Harris Ex. 1) (Harris). This

22 is evidence that it is possible to effect a cleaning of an area

23 where homeless reside without the necessity of confiscating and

24 immediately destroying the property of the homeless.

25

412. The City contends that storing homeless people’s

26 property as an alternative to immediate destruction would place

27 City workers at a health risk. (RT vol. III, 15, Nov. 17, 2006)

28 (Souza). However, the Fresno Police Department’s procedure for

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1 evidence handling and property booking, provides for the handling

2 of hazardous materials, evidencing that there are City personnel

3 who know how to and are equipped to handle such materials.

4 (Garner Ex. C, 7). Some City employees, police and fire

5 personnel, are already trained in the handling of such materials.

6 According to Mr. Souza, expenditures in the range of $50,000

7 would cover not only adequate training of additional City

8 workers, but also any additional materials and resources they

9 would need to deal with property of the homeless, establishing

10 that such training is possible, contrary to the City’s opposition

11 position initially advanced. (RT vol. III, 30, Nov. 17, 2006)

12 (Souza).

13

413. Evidence shows that other cities and one state in the

14 United States have developed procedures for handling and storing

15 the property of homeless people, other than by immediately

16 destroying the property. (Ozdeger Ex. A; Pls. Ex. A). The City

17 has not explored any such alternatives. (Testimony of Andrew

18 Souza, Nov. 22, 2006).

19

414. The City’s annual budget including capital is

20 $856,000,000. While the budget is allocated annually, the City

21 admits that it is possible to change the budget to reallocate

22 funds during any fiscal year. (RT vol. III, 28-29, Nov. 17,

23 2006) (Souza).

24

415. The City estimated that it would cost in the range of

25 $50,000 if it were required to change its practice, train staff

26 and provide materials to take and store homeless people’s

27 property instead of destroying it. The City currently owns

28 trucks and other equipment that could be used to store rather

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1 than destroy the property of the homeless, but has not provided

2 any estimate of any additional cost to perform more steps. (RT

3 vol. III, 15-16, Nov. 17, 2006; see also Testimony of Phillip

4 Weathers, Nov. 17, 2006) (Souza).

5

416. For example, the City of Fresno owns over one hundred

6 trucks, the majority of which are used every day. However, one

7 or two trucks of the type needed would be available to assist

8 with relocating homeless people’s property, at no additional cost

9 to the City. (RT vol. III, 31-32, Nov. 17, 2006) (Souza).

10

417. The City asserts that storing homeless people’s

11 property as an alternative to immediate destruction, would expose

12 the City to possible litigation expenses due to the risk of

13 giving stored property to a person other than the rightful owner.

14 (RT vol. III, 18, Nov. 17, 2006) (Souza). However, the City

15 provided no quantification or estimate of the value or cost of

16 this risk and, other than this case, has cited to no actual

17 litigation brought against the City by homeless persons regarding

18 their property.

19

418. The City has identified no area in the City where the

20 homeless can go nor has the city itself provided shelter or any

21 place for the homeless or their property. (RT vol. III, 32-33,

22 Nov. 17, 2006) (Souza).

23

419. Based on all the evidence, the Court finds that the

24 City has the ability to retain and store rather than immediately

25 destroy, during sweep, the property of the homeless at a

26 reasonable cost and effort.

27

420. Based on all the evidence, the Court finds that

28 storing and maintaining rather than destroying, the property of

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1 the homeless is possible and within the ability of the City,

2 although the City chooses not to do so for the reasons stated by

3 Mr. Souza and other City witnesses.

4

5

III. CONCLUSIONS OF LAW

6 A. Context of the Decision

7

1. As stated in open court, the Court extends respect and

8 comity to coordinate branches of government, the Legislature and

9 the Executive. The Court will not presume to tell elected

10 officials of the City of Fresno how to address and resolve

11 problems presented by the homeless. The power to tax and spend

12 is the province of the Legislature and the Court cannot direct

13 the City of Fresno how to allocate or utilize its fiscal

14 resources.

15

2. The Executive branch of the City, the Police Department

16 and Department of Sanitation are experts in the fields of

17 addressing health and safety risks. The Court will not direct

18 nor is it qualified to order how or by what methods issues

19 concerning problems of the homeless and their property should be

20 addressed and solved nor what person, power, methods, or

21 resources are to be utilized in the enforcement of the laws and

22 protection of the health and safety of the community.

23

3. The Court’s function is limited to addressing the legal

24 claims that the Constitutional rights of the Plaintiffs are being

25 violated by adopted and implemented policies, patterns and

26 practices of the City of Fresno in seizing and immediately

27 destroying the property of the homeless.

28

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1 B. Standards for Issuance Of Injunctive Relief.

2

4. Injunctive relief is an equitable remedy that considers

3 the likelihood of success on the merits and the nature of harm

4 caused by challenged conduct. Clear Channel Outdoor, Inc. v.

5 City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). The

6 purpose of a preliminary injunction is to maintain the relative

7 positions of the parties until a trial on the merits is held.

8

5. Under the traditional test, a plaintiff must show the

9 following for injunctive relief: (1) a strong likelihood of

10 success on the merits; (2) the possibility of irreparable harm to

11 the plaintiff if injunctive relief is not granted; (3) a balance

12 of hardships favoring the public; and (4) advancement of the

13 public interest in certain cases. Save Our Sonoran, Inc. v.

14 Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005). In the

15 alternative, a court may grant injunctive relief if Plaintiff

16 “demonstrates either a combination of probable success on the

17 merits and the possibility of irreparable injury or that serious

18 questions are raised and the balance of hardships tips sharply in

19 his favor.” Id. at 1120.

20

21 C. Likelihood Of Success On The Merits Unlawful Seizure.

22

6. The Fourth Amendment to the United States Constitution

23 protects against unreasonable seizures and searches. Menotti v.

24 City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). Similarly,

25 Article I, Section 13 of the California Constitution provides in

26 part that “[t]he right of the people to be secure in their

27 persons, houses, papers and effects against unreasonable seizures

28 and searches may not be violated . . . .,” a provision that

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1 provides at least as much protection as does the Fourth

2 Amendment. See People v. Brisendine, 13 Cal.3d 528, 548-52

3 (1975), abrogated on other grounds as discussed in In re Lance

4 W., 37 Cal.3d 873, 879 (1985).

5

7. A seizure for Fourth Amendment purposes occurs when

6 there is some meaningful interference with an individual’s

7 possessory interest in property. Soldal v. Cook County, Ill, 506

8 U.S. 56, 63 (1992). An officer who comes across an individual’s

9 property in a public area may seize it only if Fourth Amendment

10 standards are satisfied - for example, if the items are evidence

11 of a crime or are contraband. Id. at 68.

12

8. As the Ninth Circuit recently further explained:

13

Reasonableness is the touchstone of any seizure under

the Fourth Amendment. Thus, to comply with the Fourth

14

Amendment, the seizure . . . must have been reasonable

under the circumstances. We look to the totality of

15

the circumstances to determine whether the destruction

of property was reasonably necessary to effectuate the

16

performance of the law enforcement officer’s duties. A

seizure becomes unlawful when it is “more intrusive

17

than necessary.” To determine whether the [given

seizure] was reasonable, we balance the nature and

18

quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing

19

governmental interests at stake.

20 San Jose Charter of the Hells Angels Motorcycle Club v. City of

21 San Jose, 402 F.3d 962, 975 (9th Cir. 2005).

22

9. The City’s policy and practice in dealing with the

23 homeless, as implemented, effects seizures of homeless

24 individuals’ property. The interference with Plaintiffs’

25 possessory interests is more than just “meaningful;” it is total

26 and irrevocable, since the City seizes and then immediately

27 destroys all of the property that it seizes in its sweeps. Id.

28 at 975 (“[t]he destruction of property by State officials poses

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1 as much of a threat, if not more, to people’s right to be ‘secure

2 in their effects’ as does the physical taking of them.”).

3

10. Such seizures, which result in the irrevocable

4 destruction of homeless persons’ property, are also “more

5 intrusive than necessary” and therefore unlawful. Id. The City

6 conducts its seizures in a highly intrusive manner, by

7 immediately destroying the property and thus permanently

8 depriving the homeless owners of their property. The City makes

9 no effort to separate and or store for later retrieval items that

10 are clearly owned and are valuable, not trash. Rather, the

11 City’s policy is to immediately seize and destroy all property in

12 the area of the sweeps, without regard to the nature or value of

13 the property.

14

11. The City’s sweeps are not confined to seizure and

15 destruction of property that is evidence of a crime or

16 contraband, or that presents immediate threats to public health

17 or safety. Even when homeless people inform City workers that

18 they have been granted permission to keep their belongings where

19 they are, the City seizes and destroys the property regardless.

20 This policy and practice of seizure and destruction without just

21 cause violates the Fourth Amendment and the concomitant

22 protections against unlawful seizure found in the California

23 Constitution.

24

12. The City has attempted to justify its policies and

25 practices by its rule that the property of the homeless that it

26 seizes and destroys is “abandoned” and is therefore “trash.” The

27 City’s “rule,” developed by Specialist Wallace and adopted by the

28 City Police Department Sanitation Department, and City Manager,

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1 is that if a homeless person is not literally beside his or her

2 property laying claim to it during a sweep, then the City deems

3 that property to be abandoned, making the property “trash,” which

4 is then destroyed. There is no legal justification for this rule

5 which is demeaning as it places no value on the homeless’

6 property and is not honest because the “rule” purports to

7 transmogrify obviously valuable property into trash.

8

13. In California, as under the common law, an item is the

9 property of its owner unless the owner intentionally and

10 voluntarily abandons it because “she simply no longer desires to

11 possess the thing being abandoned.” 1 Cal.Jur.3d Lost and

12 Escheated Property, Sec. 2; See Katsaris v. United States 684

13 F.2d 758, 761-62 (11th Cir. 1982). Here, the evidence

14 demonstrates that Plaintiffs did not intend to abandon their

15 tents, carts, clothing, bicycles, personal effects, memorabilia,

16 and other property that they need to survive, and no reasonable

17 official could believe this to be the case. Nor can the City

18 treat property as abandoned and trash just because the owner has

19 not removed it in the time the government has allotted. A & W

20 Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th

21 Cir. 1998).

22

14. The City’s purported desire for clean and safe streets

23 does not make its conduct lawful. Protection of the public does

24 not require the wholesale seizure and immediate destruction of

25 all Plaintiffs’ possessions and in any event “is outweighed by

26 the more immediate interests of the plaintiffs in not having

27 their personal belongings destroyed.” Pottinger v. City of

28 Miami, 810 F.Supp. 1551, 1573 (S.D. Fla. 1992).

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1

15. The City’s seizure of homeless people’s personal

2 property without probable cause and the immediate and permanent

3 destruction of such property without a method to reclaim or to

4 assert the owner’s right, title, and interest to recover such

5 personal property violates the Fourth Amendment to the United

6 States Constitution and Art. I, § 13 of the California

7 Constitution.

8

9 D. Failure To Provide Due Process.

10

16. The Fourteenth Amendment to the United States

11 Constitution provides that “No state shall . . . deprive any

12 person of life, liberty, or property, without due process of

13 laws.” United States Const. Amend XIV. Article 1, section 7(A)

14 of the California Constitution similarly provides that “[a]

15 person may not be deprived of life, liberty, or property without

16 due process of law . . . .” In this case, the City is subject to

17 the Fourteenth Amendment.

18

17. Plaintiff’s personal possessions, which in many cases

19 represent most of what they own, undoubtedly constitute

20 “property” for purposes of constitutional analysis. Fuentes v.

21 Shevin, 407 U.S. 67, 84 (1972). “[A] homeless person’s personal

22 property is generally all he owns; therefore, while it may look

23 like “junk” to some people, its value should not be discounted.”

24 Pottinger, 810 F.Supp. at 1559 (one person’s trash is another

25 person’s treasure).

26

18. Before the government seizes an individual’s property,

27 even temporarily, it must provide notice and an opportunity to be

28 heard prior to the seizure, except in “extraordinary situations

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1 where some valid governmental interest is at stake that justifies

2 the postponing of the hearing until after the event.” United

3 States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993).

4 Pre-seizure notice is not dependent upon the value of the

5 property. Fuentes v. Shevin, 407 U.S. at 84-87; Propert v.

6 District of Columbia, 948 F.2d 1327, 1334 (D.C. Cir. 1991)

7 (government must provide adequate notice to owners of parked cars

8 before it tows them as “junk.”).

9

19. The basic requirements of procedural due process are a

10 right to notice and an opportunity to be heard at a meaningful

11 time and in a meaningful manner. Matthews v. Eldridge, 424 U.S.

12 319, 339-43 (1976). When a protected property interest is

13 threatened, a court must consider three factors to determine

14 whether the basic requirements of procedural due process have

15 been met:

16

[f]irst, the private interest that will be affected by

the official action; second, the risk of an erroneous

17

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

18

substitute procedural safeguards; and finally, the

Government’s interest, including the function involved

19

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

20

entail.

21

20. Here, the process provided by the City is

22 constitutionally inadequate, particularly in light of the fact

23 that the City is seizing from homeless people the very

24 necessities of life: shelter, medicine, clothing, identification

25 documents, and personal effects of unique and sentimental value.

26 The City offered limited evidence of any written pre-deprivation

27 notice; the only written notice actually produced by the City at

28 the hearing was affirmatively misleading in that it gave the

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1 incorrect date for when the “clean-up” operation was to occur.

2 There was some evidence of oral notice before some of the City’s

3 sweeps. (Testimony of Captain Garner, Specialist Wallace and Mr.

4 Connell). This too was inconsistent, as a number of Plaintiffs

5 and witnesses described confusion and a lack of response to the

6 oral notice, establishing that the notice procedure is not

7 effective.

8

21. Moreover, the City provides no post-deprivation remedy

9 of any sort, as all property is summarily destroyed on the spot

10 once it is seized. “[T]he State may not finally destroy a

11 property interest without first giving the putative owner an

12 opportunity to present his claim of entitlement.” Logan v.

13 Zimmerman Brush Co., 455 U.S. 422, 434 (1982); see also Propert,

14 948 F.2d at 1335 (“Although [a municipality] may have a strong

15 interest in the prompt removal of supposed junk vehicles from the

16 streets, its interest in the immediate destruction of such

17 vehicles is far from apparent.”); Schneider v. County of San

18 Diego, 28 F.3d 89 (9th Cir. 1994); Wong v. City & County of

19 Honolulu, 333 F.Supp.2d 942, 945 (D. Haw. 2004).

20

22. The City’s process, or lack thereof, creates not just

21 the risk, but the certainty of erroneous deprivation. The City

22 could reasonably provide a more effective process that would

23 reduce the likelihood of erroneous deprivation. For example, any

24 written notice should be given consistently and sufficiently in

25 advance of any planned operation, publicly posted and if

26 practicable affixed to any specific property at issue, and

27 simultaneously given to service providers in the immediate area.

28 The notice should be written in a manner reasonably calculated to

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1 be understood by the affected parties and should include a clear

2 and unambiguous statement of the nature and purpose of the action

3 to be taken, the legal authority for such action, the specific

4 location where the action is to be taken, and the date and time

5 of the action. There should also be a post-deprivation process,

6 described in the notice, to be followed to reclaim any personal

7 property that is seized. See Cal. Civ. Code §§ 2080 et seq.

8

23. In the absence of effective and adequate pre- or post-

9 deprivation process, the City’s seizure and immediate destruction

10 of homeless people’s personal property violates the Fourteenth

11 Amendment to the United States Constitution and Art. I, §§ 7(A)

12 and 13 of the California Constitution.

13

14 E. Other Relevant Legal Authority.

15

24. Other district courts that have applied constitutional

16 protections in the context of homeless people’s property

17 interests have reached similar conclusions. Pottinger v. City of

18 Miami, 810 F.Supp. 1551, 1556 (S.D. Fla. 1992), cited with

19 approval in United States v. Gooch, 6 F.3d 673, 677 (9th Cir.

20 1993), found Fourth Amendment and Due Process violations and

21 issued injunctive relief where City of Miami employees, in

22 addressing the City’s “homeless problem,” routinely seized and

23 destroyed the possessions of homeless people by use of front-end

24 loaders and dump trucks, where such property included personal

25 identification, medicine, clothing, and a Bible, and where the

26 City threatened with arrest those who attempted to retrieve

27 belongings. Although the Court found that the City had an

28 interest in keeping areas sanitary, orderly, and law-abiding,

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1 such interests did not outweigh or justify violations of

2 fundamental Constitutional rights under the Fourth, Fifth and

3 Fourteenth Amendments to the United States Constitution. The

4 Court observed that the value of personal property of homeless

5 people “is in the eye of the beholder, as one man’s junk is

6 another man’s treasure.” Id. at 1556. The Pottinger case is

7 persuasive authority.

8

25. In Justin v. City of Los Angeles, CV012352 LGB AIJK,

9 2000 WL 1808426 (C.D. Cal. Dec. 5, 2000), the Plaintiffs, who

10 were homeless individuals, charged the Los Angeles Police

11 Department and other City officials with unlawful searches and

12 seizures, including the destruction of the homeless person’s

13 personal property. In rejecting the City’s argument that it had

14 a greater right to keep its streets safe and clean, the Justin

15 court issued injunctive relief, holding:

16

Here, Defendants may be slowed in their efforts to keep

the City, and especially the downtown area, clean and

17

safe. This injunction may disturb their new initiative

to revitalize and uplift communities, to improve the

18

streets and sidewalks, and to diminish the crime rate.

Plaintiffs, however, risk a greater harm if the

19

injunction is not granted: the violation of their

First, Fourth, and Fourteenth Amendment rights. Id. at

20

*11.

21 The Justin case is also persuasive authority.

22

26. The district court in the unpublished decision of Love

23 v. City of Chicago, 1996 WL 627614 (N.D. Ill. 1996), relied on by

24 Defendants here, found no constitutional violations based on the

25 very different facts presented in that case. In Love, the city

26 had established a written procedure for sweeps that provided for

27 at least three separate notices, and two additional forms of

28 notice when possible. Id. at *3-*4. There was no evidence that

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1 the city would seize belongings that homeless people or their

2 colleagues wished to move or that any property claimed by persons

3 who were present had been lost under this procedure. Id. at *4.

4 City workers would save and inventory certain items of value so

5 that the owner could reclaim them. Id. By contrast, here the

6 City of Fresno fails to provide adequate notice and seizes and

7 immediately destroys any unattended property, even if it is

8 clearly someone’s personal possessions. Under the City’s policy,

9 homeless people have lost personal property and will continue to

10 lose such property absent Court intervention. The Love case is

11 distinguishable on its facts. To the extent that any part of the

12 Love decisions’ legal analysis leads to a different result on the

13 facts here, the analyses of the Pottinger and Justin cases are

14 more compelling and persuasive.

15

16 F. Balance Of Hardships.

17

27. The balance of hardships weighs heavily in favor of

18 Plaintiffs. Plaintiffs’ interest in protecting against unlawful

19 seizure and immediate, irrevocable destruction of their personal

20 property including the loss of constitutional rights, in itself,

21 an injury that the law will not tolerate, Associated Gen.

22 Contractors of Cal. v. Coalition for Econ. Equality, 950 F.2d

23 1401, 1412 (9th Cir. 1991); Guiterrez v. Mun. Ct., 838 F.2d 1031,

24 1045 (9th Cir. 1988), vacated as moot, 490 U.S. 1016; Citicorp

25 Servs., Inc. v. Gillespie, 712 F.Supp. 749, 753 (N.D. Cal. 1989);

26 is balanced against the City’s interest in reducing health and

27 safety concerns and protection of private property from trespass

28 by the homeless, which can be protected against without such

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1 immediate destruction of property.

2

28. The evidence adduced demonstrates that the City’s

3 destruction of homeless people’s property causes a variety of

4 other significant, legally cognizable harms. In the City’s

5 operations, homeless people lose medicine and health supplies;

6 tents and bedding that shelter them from the elements; clothing

7 and hygiene supplies; identification documents and other personal

8 papers; the tools by which they try to make a meager income; and

9 items of immeasurable sentimental value. The irreparable harm

10 from the City’s practices also includes the harm to homeless

11 people’s security and dignity.

12

29. On the other side of the balance lies the City’s

13 purported need to seize and destroy homeless people’s property as

14 part of its law enforcement or sanitation efforts to keep the

15 City clean and safe. The City is free to enforce the laws,

16 remove homeless people from private property or other areas if

17 they are unlawfully present or congregating there, and can

18 otherwise enforce public health and safety laws, including

19 criminal laws necessary to protect the public, if there is

20 probable cause to believe such laws are being violated.

21 Similarly, the City can keep its streets clean without the

22 wholesale immediate destruction of the personal property of

23 homeless people. It is not the Court’s place to direct the City

24 how to do so. Preliminary injunctive relief will in no way

25 hinder the City’s necessary law enforcement efforts to fully

26 protect the public in addressing any violations of City

27 ordinances, State or Federal law by homeless individuals. Even

28 actual violations of local or State laws do not per se justify

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1 the immediate wholesale destruction of Plaintiffs’ personal

2 property, even with respect to items the police deem contraband.

3 The court does not presume to suggest how the City should

4 allocate its resources and enforce the law.

5

30. The City’s assessments of the cost and risk assessments

6 associated with storing property that is seized, rather than

7 immediately destroying it are inadequate. Even if upholding the

8 legal rights of homeless people could result in some cost to the

9 City, that is the price of living in a civilized society. The

10 City’s speculated cost is insufficient to tip the balance of

11 hardships in its favor because, “while cost to the government is

12 a factor to be weighed in determining the amount of process due,

13 it is doubtful that cost alone can ever excuse the failure to

14 provide adequate process.” Propert, 948 F.2d at 1335.

15

31. The public interest is served in the interim by

16 issuance of preliminary injunctive relief to maintain the status

17 quo. The injunction will prevent the City from seizing the

18 personal property of homeless persons without lawful cause and

19 from immediately destroying any property it seizes, pending a

20 trial in this matter or further order of the Court. If the City

21 needs to conduct sweeps or take other law enforcement actions

22 against homeless individuals in the interim period, the City will

23 not suffer undue hardship in having to retain property seized to

24 afford due process, as opposed to the immediate irrevocable

25 destruction of the Constitutional rights and property of affected

26 homeless individuals.

27 ///

28 ///

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1 G. Bond

2

32. Plaintiffs have no assets and cannot reasonably post a

3 bond even if one were justified in this case or if Defendants so

4 requested. A bond requirement shall not be imposed. See, e.g.,

5 Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (“We

6 have recognized that Rule 65(c) invests the district court with

7 discretion as to the amount of security required, if any.”)

8 (quotation marks omitted) (emphasis in original). Plaintiffs are

9 destitute and cannot afford to pay for a bond. See e.g.,

10 Orantes-Hernandez v. Smith, 541 F.Supp. 351, 385 n.42 (C.D. Cal.

11 1982) (waiving bond where action was brought by destitute

12 plaintiff); Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.

13 1999) (waiving bond where vast majority of plaintiffs were “very

14 poor”). Further, there is “no realistic likelihood of harm to

15 the defendant[s] from enjoining [their] conduct.” Jorgensen, 320

16 F.3d at 919.

17

18 H. Preliminary Injunction

19

33. To prevent the violation of Plaintiffs’ Fourth and

20 Fourteenth Amendment rights under the U.S. constitution and Art.

21 I §§ 7 and 13 of the California Constitution, a preliminary

22 injunction shall issue in the form set forth in Exhibit A,

23 attached hereto and by this reference incorporated in these

24 Findings.

25

TO THE EXTENT ANY FINDING OF FACT COULD BE INTERPRETED AS A

26 CONCLUSION OF LAW OR ANY CONCLUSION OF LAW COULD BE INTERPRETED

27 ///

28 ///

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1 AS A FINDING OF FACT, IT IS SO INTENDED.

2

3 SO ORDERED.

4 DATED: December 8, 2006.

5

/s/ Oliver W. Wanger

6

__________________________________

Oliver W. Wanger

7

UNITED STATES DISTRICT JUDGE

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EXHIBIT “A”

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1

2

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5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

9 PAMELA KINCAID, DOUG DEATHERAGE, )

CHARLENE CLAY, CYNTHIA GREENE, )

10 JOANNA GARCIA, AND RANDY

)

JOHNSON, INDIVIDUALLY ON BEHALF )

11 OF THEMSELVES AND ALL OTHERS

)

SIMILARLY SITUATED,

)

12

)

Plaintiffs,

)

13

)

v.

)

14

)

CITY OF FRESNO, CALIFORNIA

)

15 DEPARTMENT OF TRANSPORTATION, )

ALAN AUTRY, JERRY DYER, GREG

)

16 GARNER, REYNAUD WALLACE, JOHN )

ROGERS, PHILLIP WEATHERS AND

)

17 WILL KEMPTON, INDIVIDUALLY AND )

IN THEIR OFFICIAL CAPACITIES; )

18 DOES 1-100, INCLUSIVE,

)

)

19

Defendants.

)

)

20

)

1:06-cv-1445 OWW SM PRELIMINARY INJUNCTION

21

22

The Plaintiff’s Application for a Preliminary Injunction was

23 heard on November 7, 16, 17, and 22, 2006, at which testimony was

24 taken, exhibits received into evidence, and arguments of counsel

25 were presented and fully heard. Based on the accompanying

26 Findings of Fact and Conclusions of Law; good cause having been

27 shown and the requisite equitable standards for injunctive relief

28 satisfied, the following Preliminary Injunction is issued:

87

Case 1:06-cv-01445-OWW-SMS Document 91 Filed 12/08/2006 Page 88 of 88

1

1. Pending further order of this Court or trial of this

2 matter and the ruling on Plaintiffs’ Complaint for permanent

3 injunction, the City of Fresno, its Police Department, Sanitation

4 Department, and all those acting for, under or in concert with

5 them, or who have actual notice of this order, are enjoined from

6 seizing and immediately destroying the property of homeless

7 persons, absent probable cause to believe that the property is

8 evidence of a crime, contraband, or presents an immediate threat

9 to public health or safety; unless the City provides

10 constitutionally adequate notice and a meaningful opportunity to

11 be heard concerning the seizure and destruction of such personal

12 property before the property is destroyed;

13

2. Absent an immediate threat to public health or safety,

14 any property of the homeless that is seized that is not hazardous

15 or contraband, may not be destroyed without prior written notice

16 that such property will be seized and destroyed and a

17 constitutionally adequate pre- or post-deprivation remedy

18 provided to recover such property.

19

20 SO ORDERED.

21

22 DATED: December 8, 2006.

23

/s/ Oliver W .Wanger

24

_____________________________

Oliver W. Wanger

25

UNITED STATES DISTRICT JUDGE

26

27

28

88

 
 Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 1 of 26

1

2

3 UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF CALIFORNIA
5

6

7

PAMELA KINCAID, DOUG DEATHERAGE, CHARLENE CLAY,

1:06-CV-01445 OWW SMS

8

CYNTHIA GREENE, JOANNA GARCIA, RANDY JOHNSON, individually on

MEMORANDUM DECISION AND ORDER

9

behalf of themselves and all others similarly situated,

GRANTING PLAINTIFFS’ MOTION TO CERTIFY CLASS

10

Plaintiff,

11

v.

12 CITY OF FRESNO, CALIFORNIA

13

DEPARTMENT OF TRANSPORTATION, ALAN AUTRY, JERRY DYER, GREG

14

GARNER, REYNAUD WALLACE, JOHN ROGERS, PHILLIP WEATHERS, AND

15

WILL KEMPTON, individually and in their official capacities;

16 DOES 1-100, inclusive,

17

Defendants.

18

19

1. INTRODUCTION

20

This matter comes before the court on Plaintiffs’ motion to

21 certify a class pursuant to Fed. R. Civ. P. 23(a) and Fed. R.

22 Civ. P. 23(b). Plaintiffs argue that there are sufficient common

23 questions of fact and law to warrant certification as a class

24 action membership. Defendants oppose Plaintiffs’ motion.

25

2. PROCEDURAL BACKGROUND

26

Plaintiffs filed their initial complaint on October 17,

27 2006. (Doc. 1, Complaint.) Plaintiffs filed a second amended

28 complaint (“SAC”) on March 1, 2007. (Doc. 113, SAC.) On June

1

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 2 of 26

1 15, 2007 Plaintiffs filed a motion to certify class. (Doc. 131,

2 Motion to Certify Class.) On July 2, 2007 Defendants opposed the

3 motion. (Doc. 135, Opposition.) On July 2, 2007 Defendant Will

4 Kempton joined in opposing Plaintiffs’ motion. (Doc. 137,

5 Joinder by Will Kempton, July 2, 2007.) On July 11, 2007

6 Plaintiffs filed their reply. (Doc. 143, Reply.)

7

3.FACTUAL BACKGROUND

8

The facts of this case are sufficiently described in other

9 motions. Only a brief summary of the facts is necessary.

10

This case concerns a number of clean-up operations (sweeps)

11 conducted by Defendants. For more than a year, Defendants

12 implemented a policy of seizing and immediately destroying

13 personal property of homeless individuals in an effort to clean

14 up the City of Fresno. (Doc. 113,SAC, ¶ 38.) A number of these

15 clean up efforts occurred on property belonging to Caltrans,

16 including the raids on May 3, 2006, May 25, 2006, June 22, 2006,

17 and August 26, 2006.

18

In bringing this action Plaintiffs seek a permanent

19 injunction and declaration of illegality of Defendants’ conduct.

20 Secondarily, Plaintiffs seek damages for the losses suffered from

21 seizure and destruction of their property, much of which is

22 common. According to Plaintiffs, the overarching issue of

23 Defendants’ liability will involve elements of common proof. The

24 common issues include:

25 1. whether Defendants’ policies and practices in conducting the

26

sweeps at issue are unlawful, in that they result in

27

immediate destruction of property of the homeless;

28 2. whether Defendants’ policies and practices in conducting the

2

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 3 of 26

1

sweeps at issue are unlawful in that they fail to provide

2

adequate pre- or post-seizure notice and fail to provide any

3

opportunity to recover seized property;

4 3. the nature of injunctive relief that should be ordered,

5

including notice requirements, the amount of time allowed to

6

move property, and what must be done with property that is

7

removed; and

8 4. whether Defendants are liable for statutory and/or punitive

9

damages and if so, how much. (Doc. 131, Motion to Certify

10

Class, Filed June 15, 2007.)

11

Plaintiffs now seek certification of class members.

12

4. LAW AND ANALYSIS

13

A. General Standard for Class Certification

14

Class certification is governed by Federal Rule of Civil

15 Procedure 23. “When a person sues or is sued as a representative

16 of a class, the court must...determine by order whether to

17 certify the action as a class action.” Fed. R. Civ. P. 23(a)(1).

18 To attain certification, a proposed class must satisfy four pre-

19 requisites set forth in Rule 23(a): (1) the class must be “so

20 numerous that joinder of all members is impracticable,” (2) there

21 must be “questions of law or fact common to the class,” (3) the

22 claims of the class representatives must be “typical of the

23 claims... of the class,” and (4) class representatives must

24 “fairly and adequately protect the interests of the class.”

25

If a proposed class satisfies all four prerequisites of rule

26 23(a), one of the three alternative requirements set forth in

27 Rule 23(b) must be satisfied as well. Plaintiffs in this case

28 seek certification under Rule 23(b)(2) and Rule 23(b)(3).

3

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 4 of 26

1

Rule 23(b)(2) requires a finding:

2

[T]hat the party opposing the class has acted or

refused to act on grounds generally applicable to the

3

class, thereby making appropriate final injunctive

relief or corresponding declaratory relief within

4

respect to the class as a whole.

5

Rule 23(b)(3) requires a finding:

6

[T]hat the questions of law or fact common to the

7

members of the class predominate over any questions

affecting only individual members, and that a class

8

action is superior to other available methods for the

fair and efficient adjudication of the controversy.

9 B. Rule 23(a) Analysis

10

i. Implied Threshold Requirements

11

In addition to the four requirements set forth explicitly in

12 Rule 23(a), courts often imply two additional, threshold
13 requirements: (a) that a “defined identifiable class exists” and
14 (b) “that the class representatives must be members of the
15 class.” Harrington v. City of Albuquerque, 222 F.R.D. 505, 509
16
(D. N.M. 2004). The proposed class satisfies these requirements. 17
18 Plaintiffs define the proposed class to include,

19

“All persons in the City of Fresno who were, are, or

20

will be homeless at any time after October 17, 2003,

whose personal belongings have been or may in the

21

future be taken or destroyed by one or more

Defendants.”.

22

23 (Doc. 131, Motion for Class Certification, page 7.) All

24 representative Plaintiffs are also members of the class in this
25 case. Named Plaintiffs are individuals who reside in the City of
26 Fresno, were homeless, and allege a loss of property as a result
27 of the City of Fresno’s pattern and practice of seizing and
28

4

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 5 of 26

1 immediately destroying homeless peoples’ property. All

2 Plaintiffs claimed that they suffered harm during the relevant
3 period beginning on October 17, 2003. Further, all class
4 representatives have submitted declarations detailing the alleged
5 harm they suffered.1
6

7

Defendants argue that Plaintiffs seek to certify a

8 substantially overbroad and undefined class. It is unclear from
9 Defendants pleadings whether they also argue that Plaintiffs do
10 not meet the threshold requirement that “a defined identifiable
11 class exist” and that “the class representatives must be members
12 of the class.” Defendants argue that the term “homeless” used in
13
14 the definition of the class is ambiguous, making the designation
15 of the class overbroad.2 In support, Defendants point to

16 1 (See, Doc. 113, Second Amended Complaint “SAC”, ¶¶ 49-57,
17 Filed February 22, 2007; See also, Doc. 10, Kincaid Decl; Doc.
18 6, Deatherage Decl.; Doc. 5, Clay Decl.; Doc. 8, Greene Decl.; Doc. 7, Garcia Decl.; Doc. 9, Johnson Decl.; Doc. 48, Nelson
19 Decl.; Doc. 13, Williams Decl., all Filed on November 6, 2006.)

20

2 Defendants cite Joyce v. City & County of San Francisco,

846 F. Supp. 843, 851-852 (N.D. Cal. 1994) where the court 21 expressed concern of the vagueness of the term “homeless.”

22 However, the concern was based on a definition used by the parties in that case who sought to enjoin Defendants for

23 enforcing certain aspects of their “Matrix Program.” Id. at 845. The court reasoned that the proposed definition of “homeless”

24 would require “individualized determination whether that person

possessed a ‘fixed, regular, and adequate nighttime residence.’” 25 Id. at 851. Determining this would make enforcement of the

26 proposed injunction impractical. See, Id. at 853. The concern over the ambiguousness of the proposed definition of “homeless”

27 in Joyce and its relation to the enforcement of a proposed

injunction is a different issue from the one presented here,

28 which is whether “a defined, identifiable class exists.”

5

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 6 of 26

1 testimony given by Ms. Liza Apper at the hearing on the

2 preliminary injunction. Defendants argue that Ms. Apper’s
3 definition and the Housing and Urban Development’s definition of
4 homeless individuals includes: (1) individuals who live in the
5 street; (2) episodic homeless; and (3) transitional homeless.
6
7 Defendants further argue that the named Plaintiffs each fall
8 within a small subset of homeless individuals and represent a

9 mere ten percent (10%) of the homeless individuals in Fresno

10 County.3
11 However, the definition of the class proposed by Plaintiffs
12 does not depend on the definition of the term “homeless” nor does
13
14 it seek to include all homeless people in Fresno. Rather, the

15 definition seeks to specifically define a class of homeless

16 individuals in Fresno “whose personal belongings have been or may

17 be in the future taken or destroyed by one or more of the
18 defendants.” The proposed definition of the class also provides
19 a time frame to narrow and identify group members who claim to
20 have been harmed after October 17, 2003.
21

22

23

3 Defendants also argue that there are “far more

individuals who are considered homeless because they are living

24 with family and friends than there are homeless living in the

street.” In support of their argument, Defendants cite to the 25 Continuum of Care study which they argue reveals that only ten

26 percent (10%) of homeless individuals in the Central Valley qualify as homeless. Even if this is true, ten percent(10%)

27 would still constitute a “defined identifiable class” of 800 out

of the 8,000 homeless people in Fresno. This is also sufficient

28 to establish numerosity under the first element of Rule 23(a).

6

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 7 of 26

1

In balancing the concerns of both parties, including the

2 different categories of homeless individuals in the City of

3 Fresno, the definition of class members is hereby narrowed to
4 include:
5

6

“All persons in the City of Fresno who were or are

homeless, without residence, after October 17, 2003,

7

and whose personal belongings have been unlawfully

taken and destroyed a sweep, raid, or clean up by any

8

of the Defendants.”

9

This definition establishes a defined identifiable class

10 representative of its members who allegedly suffered harm by

11 Defendants’ sweeps in which the property of homeless individuals
12 was seized and destroyed.
13 ii. Numerosity and Impracticability of Joinder
14

15

A proposed class must be “so numerous that joinder of all

16 members is impracticable.” Fed. R. Civ. P. 23(a)(1). The
17 numerosity requirement demands “examination of the specific facts
18 of each case and imposes no absolute limitations.” General Tel.
19
Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980). 20

21 Nevertheless, “Plaintiffs must show some evidence of or

22 reasonably estimate the number of class members. Mere

23 speculation as to satisfaction of this numerosity requirement

24 does not satisfy Rule 23(a)(1).” Schwartz v. Upper Deck Co., 183
25 F.R.D. 672, 681 (S.D. Cal. 1999).
26

27

In this case, Plaintiffs estimate that over 8,000 residents

28 of Fresno are homeless. (See, SAC 8:2-14, citing “Fresno Madera

7

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 8 of 26

1 Continuum of Care Plan to End Homelessness” (CCP) at 10-11.)

2 Plaintiffs also estimate that at least 98% of this population is
3 unsheltered. Further, Defendants’ policy has been implemented in
4 at least 25 sweeps per year since 2004, totaling at least 50
5 separate sweeps. (Doc. 91, Statement of Decision and Findings
6
7 Re: Pls.’ Application for Prelim. Inj., 13:24-27).

8

Defendants argue that only 23 claims for damages have been

9 filed with the City by residents purportedly affected by the
10 City’s conduct. Based on this evidence, Defendants argue that
11 “there is a substantial question concerning the number of
12 homeless individuals who are living in the street who fall within
13
14 the scope of the Plaintiffs’ class.” Defendants claim that

15 Plaintiffs provide no evidence to establish that the number of

16 homeless individuals who have lost their personal belongings is

17 so extensive that class treatment is required.
18 The findings issued on Plaintiffs’ Application for
19 Preliminary Injunction, noted that although Specialist Reynaud
20
21 Wallace testified that he “did not keep count of all the carts

22 containing the property of the homeless that he has observed

23 being destroyed by the City pursuant to its policy, practice, and
24 pattern,” he did estimate “that the number of such destroyed
25 carts containing such property was at least in the hundreds and
26 “countless” over the past two years in the southwest district of
27
the city alone.” (Doc. 91, Statement of Decision and Findings 28

8

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 9 of 26

1 Re: Pls.’ Application for Prelim. Inj., 27:66.) Even if only 23

2 claims for damages have been filed with the City, coupled with
3 direct evidence that seizure and destruction of property is part
4 of a sweep, the frequency of the sweeps conducted by the city,
5 and the number of homeless individuals who have been affected by
6
7 property seizures, Plaintiffs have satisfied the numerosity
8 requirement of 23(a)(2).

9

Plaintiffs have also established the impracticability of

10 joinder. A court should consider “not only the class size but
11 other factors as well, including the geographic diversity of
12
class members, the ability of individual members to institute 13

14 separate suits, and the nature of the underlying action and the

15 relief sought.” See, Nat’l Ass’n of Radiation Survivors v.

16 Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986). Given Plaintiffs’
17 homeless condition and lack of resources, it is unlikely that
18 they will be able to adjudicate their rights by filing separate
19 suits. Also, Plaintiff class are dispersed throughout the City
20 of Fresno, and many are without a fixed residence or moving
21
22 between shelters and streets. Identifying and locating

23 Plaintiffs also make joinder impractical. Defendants provide no

24 contrary evidence for impracticability. Given the large number
25 of potential class members, the inability of homeless individuals
26 to institute separate suits, and the potential burden individual
27 suits would place on the judicial system, Plaintiffs have
28

9

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 10 of 26

1 satisfied their burden to show numerosity and impracticability of

2 joinder.
3 iii. Commonality
4

5

Rule 23(a) also demands that “there are questions of law or

6 fact common to the class.” It does not require that all
7 questions of law or fact be common to every single member of the
8 class. To satisfy the commonality requirement, plaintiffs need
9 only point to a single issue common to the class. Dukes v.
10 11 Walmart, Inc., 474 F.3d 1214, 1225 (9th Cir. 2007); Slaven v. BP
12 Am., Inc., 190 F.R.D. 649, 655 (C.D. Cal. 2000). Here, common

13 questions of fact and law arise from Defendants’ alleged

14 destruction of Plaintiffs’ personal property without notice

15 pursuant to the duly adopted and regularly established practice
16 of the City.
17

18

Commonality is generally satisfied where, as in this case,

19 “the lawsuit challenges a system-wide practice or policy that

20 affects all of the putative class members.” Armstrong v. Davis,
21 275 F.3d 849, 868 (9th Cir. 2001); LaDuke v. Nelson, 762 F2d
22 1318, 1332 (9th Cir. 1985). Differences in the ways in which
23 these practices affect individual members of the class do not
24
25 undermine the finding of commonality. Armstrong, 275 F.3d at 868
26 (finding commonality requirement satisfied despite individual

27 class members having different disabilities, since all suffered

28

10

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 11 of 26

1 similar harm as a result of defendant’s actions).

2 This action involves a challenge to the City of Fresno’s
3 pattern and practice of conducting sweeps and allegedly seizing
4
and destroying the personal property of homeless individuals 5
6 without adequate notice or an opportunity to be heard and the

7 absence of effective pre- or post-deprivation remedies. (Doc.

8 113, Second Amended Complaint “SAC”, ¶¶ 38-47; Prelim. Inj.
9 Findings, ¶¶ 32-40). Plaintiffs allege that the policy treats
10 all homeless persons and their property the same, and each raid
11 is conducted in a nearly identical fashion. Plaintiffs also
12 claim that the present case includes numerous common issues of
13
14 law and fact:

15

1. The nature of Defendants’ policies, practices and

16 conduct in conducting these sweeps, including
17 whether Defendants provided adequate notice and
18 whether the sweeps were sufficiently justified;
19

20

2. Whether Defendants’ policies, practices and

21

conduct violate Class members’ state and federal

22

constitutional rights against unreasonable search

23 and seizure;
24 3. Whether Defendants’ policies, practices and
25

26

conduct violate Class members’ due process rights

27

under the California and United States

28

11

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 12 of 26

1

Constitutions;

2 4. Whether Defendants’ conduct violates Class
3 members’ rights under California Civil Code
4
Sections 52 and 52.1, California Civil Code 5

6

Section 2080, California Government Code Section

7

815.6 and common law tort of conversion;

8 5. Whether injunctive relief restraining further

9 unconstitutional and unlawful acts by Defendants
10
should be ordered by the court, and, if so, the 11

12

nature of that injunctive relief.

13

6. The manner in which Plaintiffs’ personal property

14

is seized and destroyed.

15
Defendants do not dispute Plaintiffs’ contentions. Instead 16

17 Defendants argue that Plaintiffs’ fail to show how the majority

18 of homeless individuals, or “the remaining ninety percent (90%),”

19 have ever suffered any loss of personal property as part of one

20 of the City’s sweeps or relocation efforts. However,
21 “homelessness” alone is not the defining class criterion to make
22 any individual part of the class.4 Nor do Plaintiffs’ so argue.
23 Members of the class will include only homeless individuals
24 “without residence” in the City of Fresno who “at any time after
25
26 October 17, 2003, [had their] personal belongings... taken and

27 4 The Status of Plaintiffs as homeless is a fact common to
28 the class.” Pottinger, 720 F. Supp. at 958.

12

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 13 of 26

1 destroyed by one or more Defendants.” Such members of the class

2 share common questions of law and fact in the manner in which the
3 sweeps were carried out, the fact and content of any notice, the
4 seizure and destruction of personal property and whether any pre
5 or post deprivation remedy was afforded.
6

7

iv. Typicality

8 Rule 23(a)(3) demands that “the claims or defenses of the
9 representative parties are typical of the claims or defenses of
10
the class.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 11
12 2001). “Typicality... is said... to be satisfied when each class

13 member’s claim arises from the same course of events, and each

14 class member makes similar legal arguments to prove the
15 defendant’s liability.” Id. Under the rule’s “permissive
16 standards,” representative claims are typical if they are
17 “reasonably co-extensive with those of absent class members; they
18
19 need to be substantially identical.” Hanlon v. Chrysler Corp.,
20 150 F.3d 1011, 1020 (9th Cir. 1998).

21

Plaintiffs have sufficiently established typicality. The

22 named Plaintiffs have verified under penalty of perjury the truth
23 of the information in their declarations. The preliminary
24
injunction hearing testimony and declarations in the record 25

26 before the court establish that the named Plaintiffs each present

27 claims based on Defendants’ policy of taking and destroying the

28 personal property of homeless individuals in the City of Fresno

13

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 14 of 26

1 without adequate notice or an opportunity to be heard or any

2 effective pre or post deposition remedy. Each named Plaintiff
3 and every member of the proposed class allege that they have
4 suffered the deprivation of his or her personal property as a
5 result of this policy and by virtue of their status as living in
6
7 the streets. The nature of the class and the types of property
8 lost in the raids are very similar and include personal property

9 such as tents, blankets, clothing, medicines and personal

10 effects. (Doc. 113, SAC, ¶1.) The class representatives also
11 claim to have suffered the same types of physical and emotional
12 harms that other class members have suffered. Lastly, Plaintiffs
13 claims are also typical with respect to individual defendants.5
14
Plaintiffs challenge a uniform policy implemented by the 15
16 concerted efforts of the City of Fresno and the other named

17 Defendants, including Caltrans employees or Caltrans real

18 property. Based on testimony and evidence in the record,
19 Plaintiffs have sufficiently established their claims are typical
20 of other class members.
21

22

23

24

5 See Easter v. Am. West Fin., 381 F.3d 948, 962 (9th Cir.

2004)(a plaintiff may be able to satisfy the class requirements 25 where all injuries are the result of a conspiracy or concerted

26 schemes between defendants); In re Textainer P’ship Sec. Litig., 2005 U.S. Dist. LEXIS 40974, at *32 (N.D. Cal. 2005)(holding that

27 class certification appropriate where plaintiffs’ claims were

based on “a method of dealing more or less common to all

28 defendants,”)

14

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 15 of 26

1

v. Adequacy of Representation

2 The final Rule 23(a) prerequisite is satisfied if “the
3 representative parties will fairly and adequately protect the
4
5 interests of the class.” Fed. R. Civ. P. 23(a)(4). “The proper
6 resolution of this issue requires that two questions be

7 addressed: (a) do the named plaintiffs and their counsel have any

8 conflicts of interest with other class members and (b) will the
9 named plaintiffs and their counsel prosecute the action
10 vigorously on behalf of the class?” In re Mego Fin. Corp. Sec.
11 Litig., 213 F.3d 454, 462 (9th Cir. 2000).
12

13

Named Plaintiffs represent a diverse and typical cross-

14 section of homeless men and women in Fresno. Moreover, the
15 representative Plaintiffs have demonstrated by their attendance
16 at hearings, testimony, and continued participation in this
17 lawsuit that they will maintain a continuing interest in pursuing
18 the action aggressively and eliminating the oppressive policies
19
20 to ensure justice is served. See, e.g. Walmart, 474 F.3d at 1235

21 (“It is reasonable that plaintiffs who feel that their rights

22 have been violated by [defendant’s] behavior would want that
23 behavior, and the injustice it perpetuates, to end.”).
24 Plaintiffs have a continuing interest to pursue the action to the
25 fullest.
26

27

Plaintiffs’ counsel are experienced in class action matters,

28 complex litigation, and the law in this area. They have the

15

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 16 of 26

1 resources necessary to prosecute this case. Plaintiffs’ counsel

2 have represented the named Plaintiffs from the inception of this
3 case, have appeared before the Court in several proceedings, and
4 have demonstrated to the Court their ability to competently serve
5 as class counsel. Plaintiffs have made a sufficient showing that
6
7 the plaintiffs, as class representatives, will fairly and
8 adequately protect the interests of the class.6

9

C. Rule 23(b)(2) Requirements

10 Having satisfied the prerequisites set forth in Rule 23(a),
11

12 Plaintiffs must also satisfy one of the three provisions of Rule

13 23(b). Certification under Rule 23(b)(2) is appropriate when the

14 defendant “has acted or refused to act on grounds generally
15 applicable to the class, thereby making appropriate final
16 injunctive relief or corresponding declaratory relief with
17 respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).
18

19

i. Defendants Actions on Grounds Generally Applicable

to the Class 20
Plaintiffs argue that Defendants’ policies regarding their

21

treatment of the property of the homeless are generally 22

applicable to the entire class defined. 23

24

Defendants rejoin that the over-breadth of the term

25 “homeless” as used in the proposed definition for the class 26

27 6 Defendants do not dispute that Plaintiffs have met the
28 adequate representation requirement.

16

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 17 of 26

1 “defeats any contention that the City has acted in a manner

2 applicable to the class generally.” According to defendants
3 ninety percent (90%) of the potential class members do not live
4 on the streets and are not at risk of having their property
5 affected. The City further points to their efforts over the past
6
7 seven months to “acknowledge and respect the personal property
8 rights of the homeless.”7 As a result of these efforts, the City

9 maintains that no injunctive relief will be awarded.
10 However, the definition proposed for the class is not
11 focused on the term “homeless,” meaning individuals without
12
residence. The focus is on those “without residence” whose 13
14 personal belongings have been or may be in the future taken or

15 destroyed by one or more of the defendants... after October 17,

16

17

7 These efforts include:

18 1. removing garbage from homeless encampments,

19

2. installing and servicing toilets and garbage bins,

3. assigning full time security to ensure access to

20

the public toilets,

4. drafting a proposed City policy to be implemented

21

to ensure that the City’s future conduct in

22

collecting refuse and relocating homeless

encampments will protect the constitutional rights

23

of the homeless,

5. and creating a dedicated facility within the City

24

of Fresno to allow homeless individuals living in

the street to obtain shelter in a relatively

25

unstructured environment... with access to social

26

services, toilets, water and garbage removal.

27

(Doc. 135, Opposition, p. 4; see also, Doc. 136, Declaration

of K. Trost, ¶ 3) The City also represented at the hearing that

28 it is complying in every respect with the preliminary injunction.

17

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 18 of 26

1 2003.” Even assuming arguendo that ninety percent (90%) of the

2 potential class members do not live on the street, ten percent
3 (10%) of 8000 equals 800 and constitutes a significant population
4 of class members that could potentially qualify as members of the
5 proposed class.
6

7

Plaintiffs have sufficiently established that Defendants’

8 alleged actions in conducting the raids and their treatment of

9 the property of the Plaintiffs are generally applicable to the

10 proposed class.
11

12

ii. Adequacy of Final Injunctive Relief

13 “Class actions certified under Rule 23(b)(2) are not limited
14 to actions requesting only injunctive or declaratory relief, but
15
may include cases that also seek monetary damages.” Molski v. 16
17 Gleich, 318 F.3d 937, 947 (9th Cir. 2003). “In other words, in

18 order to permit certification under this rule, the claim for

19 monetary damages must be secondary to the primary claim for
20 injunctive relief.” Id. To determine whether money damages
21 predominate, the court should examine the specific facts and
22 circumstances of each case, focusing predominantly on the
23
24 plaintiffs’ intent in bringing the suit.” Walmart, 474 F.3d at

25 1234.

26 In bringing this case, Plaintiffs argue that their motive
27 was to seek injunctive relief against Defendants with respect to
28

18

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 19 of 26

1 the class as a whole. Plaintiffs claim that the primary goal of

2 bringing this litigation was to enjoin the Defendants from
3 conducting raids on the City’s homeless that resulted in the
4 immediate loss and destruction of their property without notice
5 or an opportunity to be heard.
6

7

Defendants to not dispute this. Instead, Defendants argue

8 the injunctive relief will vary between individuals because only
9 ten percent (10%) of the class members are actually homeless.
10 This is not the case since, as previously mentioned, the focus of
11 identifying the class is not whether class members are homeless
12 or how they are individually impacted, but rather that all
13
14 members who are homeless have suffered confiscation of their

15 property as a result of an unconstitutional pattern or practice

16 by Defendants. Defendants also argue that it is unlikely that

17 Plaintiffs will qualify for a permanent injunction given the
18 City’s efforts, over the last several months, to address and
19 resolve the concerns relating to homeless who live on the street.
20 Defendants also point out that Plaintiffs are pursuing recovery
21
22 for punitive damages, aside from injunctive relief.

23

However, “Plaintiffs seek preliminary and permanent

24 injunctive relief on behalf of themselves and other homeless
25 persons similarly situated to enjoin defendants from taking and
26 destroying their personal property in violation of their
27
constitutional, statutory and common law rights.” (Doc. 113, 28

19

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 20 of 26

1 SAC, Nature of Case, ¶4.) To meet the requirements of Rule

2 23(b)(2) it is not necessary that Plaintiffs qualify for a
3 permanent injunction. It is sufficient that Plaintiffs establish
4 that the primary claim for relief is injunctive relief.
5
Plaintiffs have met this burden under Rule 23(b)(2) 6

7

D. Rule 23(b)(3) Requirements

8 Plaintiffs also seek certification pursuant to the
9
superiority provision of Rule 23(b)(3), which requires: 10

11

That the questions of law or fact common to the members

of the class predominate over any questions affecting

12

only individual members, and that a class action is

superior to other available methods for the fair and

13

efficient adjudication of the controversy.

14

i. Predominance

15 The Rule 23(b)(3) predominance inquiry tests “whether
16 proposed classes are sufficiently cohesive to warrant
17
18 adjudication by representation." Amchem Prods., Inc. v. Windsor,
19 521 U.S. 591, 623 (1997) (citation omitted).

20

Rule 23(b)(3) focuses on the relationship between the

21

common and individual issues. When common questions

present a significant aspect of the case and they can

22

be resolved for all members of the class in a single

adjudication, there is clear justification for handling

23

the dispute on a representative rather than on an

individual basis. 24

25 Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las
26 Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001).
27

28

20

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 21 of 26

1

There are numerous common issues that predominate in this

2 case. The dominant common issues in this case relate to the
3 nature of Defendants’ policies and practices and the nature and
4 extent of their liability. Specifically, Plaintiffs will
5 establish by common evidence:
6

7 (a) The nature of Defendants’ policies and practices toward

8

the homeless, including:

9 1. the nature, timing, and extent of their “sweeps”

10

or “raids” upon the homeless, the immediate

seizure and 11
2. destruction of the property of the homeless,

12

3. the absence of meaningful notice or opportunity

13

4. to get out of the way of Defendants’ destructive

raids,

14 5. the failure to store any of the seized property,

15

6. the cost and feasibility of that storage and

16

7. the inability to retrieve or recover any of the

seized personal property

17

18 (b) That Defendants’ policies, which result in the irrevocable

19

destruction of Plaintiffs’ property, are without probable

20 cause and violate Plaintiffs’ constitutional rights against
21 unreasonable search and seizure under the Fourth Amendment
22
to the United States Constitution and Article 1, § 13 of the 23

24

California Constitution;

25 (c) That Defendants’ policies fail to give adequate notice or an

26

opportunity to retrieve property once it has been taken and

27 violate Plaintiffs constitutional rights to Due Process of

28

21

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 22 of 26

1

Law under the Fourteenth Amendment of the United States

2

Constitution and Article 1, § 7(A) of the California

3 Constitution;
4 (d) That Defendants’ policies are intended to single out
5

6

homeless people, have the purpose and effect of depriving

7

homeless people of their property and driving homeless

8

people from the city of Fresno and are based on Defendants’

9

animus towards this disfavored group and lack a rational

10 relationship to any legitimate government interest and
11 therefore violate Plaintiffs constitutional rights to Equal
12
Protection of the Laws under the Fourteenth Amendment of the 13

14

United States Constitution and United States Code, Section

15

1983 and under Article 1, Section 7(A) of the California

16

Constitution;

17 (e) That Defendants’ policies violate California Civil Code
18
Section 2080 et seq. in that, among other things, Defendants 19

20

have failed to safeguard the personal property of Plaintiffs

21

and members of the plaintiff class found on public land,

22

failed to inform the owners of the personal property within

23

a reasonable time of finding this property, failed to

24 document the property found, and failed to make restitution
25 of the property to its owners or to make arrangements to
26 permit them to retrieve it;
27

28

22

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 23 of 26

1 (f) That Defendants’ policies violate California Civil Code

2

Section 52.1 because they constitute interference, and

3 attempted interference, by threats, intimidation, and

4 coercion, with Plaintiffs’ exercise and enjoyment of rights
5
secured by the Constitutions and laws of the United States 6

7

and California, in violation of California Civil Code §

8

52.1, and that as a result of such violations, Defendants

9

are liable to Class Members for statutory damages

10 (g) Whether and to what extent certain Defendants are liable to
11 the Class for punitive damages, and the amount of punitive
12
damages to which the plaintiff Class is entitled; and 13

14 (h) That Defendants’ policies constitute an unlawful conversion

15

of Plaintiffs’ property by denying Plaintiffs the possession

16 of their property when Plaintiffs were at all relevant times
17 the owners of personal property confiscated and destroyed by
18 defendants and remain entitled to the possession of their
19
personal property. 20

21

In contrast to these numerous common issues of fact and of

22 law, individualized issues in this case are limited: whether each
23 plaintiff did, in fact, have property destroyed by the defendants
24 and, if so, calculation of the appropriate compensatory damages.
25 These types of individualized issues – which are present in
26
27 nearly all class actions – do not defeat class certification
28 under Rule 23(b)(3). See Mendoza v. Zirkle Fruit Co., 222 F.R.D.

23

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 24 of 26

1 439, 447-48 (E.D. Wash. 2004). And, since the majority of items

2 taken (e.g., tents, bedding, clothes, personal effects) were
3 common to most, if not all, class members, common evidence may be
4 offered to establish the value of such items. Individual
5 calculation of specific damages can be accomplished by special
6
7 master. See Local Joint Exec. Bd., 244 F.3d at 1163.

8

a. Individualized Damages

9 While individualized proof might be necessary in some
10
exceptional cases, “[c]ourts routinely find Rule 23(b)(3)’s 11

12 predominance requirement satisfied despite the need for

13 individualized damage determinations when the fact of injury is

14 common.” Lockwood Motors, 162 F.R.D. at 582; see also Blackie v.
15 Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (“The amount of
16 damages is invariably an individual question and does not defeat
17 class action treatment.”) (citation omitted); Local Joint Exec.
18
19 Bd., 244 F.3d at 1163 (holding that some “variation among

20 individual [plaintiffs], as well as some potential difficulty of

21 proof” was no bar to certification under 23(b)(3) “given the

22 number and importance of common issues”).
23 Here, Plaintiffs have sufficiently established that there
24 are a large number of common questions of fact and law which are
25
26 a significant aspect of the liability case, which can be resolved

27 for all members of the class in a single adjudication.

28

24

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 25 of 26

1

ii. Superiority of Class Action

2 To determine whether “a class action is superior to other
3
available methods for the fair and efficient adjudication of the 4
5 controversy,” Fed. R. Civ. P. 23(b)(3), a district court should

6 consider:

7

(A) the interest of members of the class in

8

individually controlling the prosecution or

defense of separate actions;

9

(B) the extent and nature of any litigation concerning

10

the controversy already commenced by or against

members of the class;

11

(C) the desirability or undesirability of

concentrating the litigation of the claims in the

12

particular forum;

13
14 Id.
15

(D) the difficulties likely to be encountered in the management of a class action.

16

Given Plaintiffs’ lack of education, resources, and social

17 acceptance, class members are unlikely to institute separate

18 suits. Since the City started its unlawful sweeps there has been

19 no separate lawsuit filed against the City by a homeless
20 individual other than this case. Homeless individuals are also
21 typically unfamiliar with the federal court system and lack the
22 knowledge and ability to pursue individual separate lawsuits.
23

24

The primary relief sought is injunctive relief. To require

25 individual class members to sue separately would be impractical,
26 and an undue burden on the courts. Individual results would
27 result in duplicative, redundant discovery and require multiple
28

25

Case 1:06-cv-01445-OWW-SMS Document 147 Filed 08/14/2007 Page 26 of 26

1 courts to analyze the same evidence or the same legal issues.

2 Given the potential size of the class, approximated at 800
3 individuals on the high end and 40 on the low end, and the
4 relatively minimal compensatory damages, the cost of proving
5 nominal damages in separate trials would outweigh the potential
6
7 recovery and make individual actions unfeasible.

8

5. CONCLUSION

9 Based on the totality of all factors considered. Plaintiffs
10
have established the requisites of Fed. R. Civ. P. §§ 23(a)(1)11

12 (4), 23(b)(2) and (b)(3) and shown that certification of the

13 class is superior to all other methods of adjudication.

14 Plaintiffs’ motion to certify class is GRANTED. The
15 following class definition shall apply:
16

17

“All persons in the City of Fresno who were or are

homeless, without residence, after October 17, 2003,

18

and whose personal belongings have been unlawfully

taken and destroyed in a sweep, raid, or clean up by

19

any of the Defendants.”

20

21

22

23 IT IS SO ORDERED.

24
Dated: 25
dd0l0 26

August 14, 2007

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

27

28

26

 
 Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 1 of 41

1 HOWREY LLP

PAUL ALEXANDER (SBN 49997)

2 950 University Ave., 4th Floor
East Palo Alto, CA 94303

3

Telephone: (650) 798-3500 Facsimile: (650) 798-3600

4 E-mail: alexanderp@howrey.com

HELLER EHRMAN LLP
5 ROBERT B. HAWK (SBN 118054)

MELYSSA E. MINAMOTO (SBN 245458)

6 ERIC LLOYD (SBN 254390)

275 Middlefield Rd.

7 Menlo Park, CA 94025-3506

Telephone: (650) 324-7000

8

Facsimile: (650) 324-0638 E-mail: robert.hawk@hellerehrman.com

9 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)

131 Steuart Street
11 San Francisco, CA 94105

Telephone: (415) 543-9444

12 Facsimile: (415) 543-0296
E-mail: osellstrom@lccr.com

13
ACLU OF NORTHERN CALIFORNIA

14

ALAN L. SCHLOSSER (SBN 49957) MICHAEL T. RISHER (SBN 191627)

15

39 Drumm Street San Francisco, CA 94111

Telephone: (415) 621-2493
16 Facsimile: (415) 255-8437

E-mail: mrisher@aclunc.org

17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

19

Civil Action No.: 06-CV-1445-OWW

20 Pamela Kincaid, Doug Deatherage, Charlene Clay,
Cynthia Greene, Joanna Garcia, Randy Johnson,
21 Sandra Thomas, Alphonso Williams, and Jeannine
Nelson, Individually on Behalf of Themselves and
22 All Others Similarly Situated,

23

v.

Plaintiff,

24 City of Fresno, Alan Autry, Jerry Dyer, Greg
Garner, Reynaud Wallace, John Rogers, Phillip
25 Weathers, Will Kempton, James Province, Daryl
Glenn, Individually and in Their Official Capacities;
26 DOES 1-100, inclusive,

CLASS ACTION
SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND THE PLAINTIFF CLASS AND DEFENDANTS CITY OF FRESNO, ALAN AUTRY, JERRY DYER, GREG GARNER, REYNAUD WALLACE, JOHN ROGERS AND PHILLIP WEATHERS

27

Defendant.

28

SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 2 of 41

11

SETTLEMENT AGREEMENT

2

This Settlement Agreement, effective as of May 20, 2008, is made and entered into

3 by and among: (i) Plaintiffs Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia,

4 Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson on behalf of

5 themselves and each Plaintiff Class Member, defined in the Court’s Order dated August 14, 2007

6 as “all persons in the City of Fresno who were or are homeless, without residence, after October

7 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep,

8 raid or clean up by any of the Defendants”; and (ii) Defendants City of Fresno, Alan Autry, Jerry

9 Dyer, Greg Garner, Reynaud Wallace, John Rogers, and Phillip Weathers (collectively “City of

10 Fresno Defendants”).

11

12 SECTION 1. THE LITIGATION

13
Plaintiffs filed the original Complaint on October 17, 2006, against the City of Fresno
14
Defendants and against Will Kempton, James Province, and Daryl Glenn (collectively “Caltrans
15
Defendants”), and filed a Second Amended Complaint on March 1, 2007. Plaintiffs’ Complaint
16
asserted that Defendants violated Plaintiffs’ Fourth Amendment right against unreasonable
17
searches and seizures, Fourteenth Amendment rights to Due Process and Equal Protection of the
18
Law, all pursuant to 42 U.S.C. § 1983. The Complaint also asserted that Defendants violated the
19
Bane Act, Cal. Civ. Code § 52.1, Cal. Gov. Code. § 2080, and committed unlawful conversion.
20
Judge Wanger granted a Temporary Restraining Order against the City of Fresno Defendants on
21
October 25, 2006. In November 2006, Judge Wanger held a Hearing on the Preliminary
22
Injunction, and granted a Preliminary Injunction on December 8, 2006.
23
On March 16, 2007, Judge Wanger denied the Caltrans Defendants’ motion to dismiss all
24
causes of action. Subsequently, Judge Wanger held a settlement conference for all Parties in his
25
chambers on April 12, 2007. These settlement discussions were unsuccessful.
26
Judge Wanger granted Plaintiffs’ Motion for Class Certification on August 14, 2007,
27
allowing Plaintiffs to proceed on behalf of a class of “All persons in the City of Fresno who were
28

1
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 3 of 41

1 or are homeless, without residence, after October 17, 2003, and whose personal belongings have

2 been unlawfully taken and destroyed in a sweep, raid or cleanup by any of the Defendants.”

3

On February 28, 2008, Plaintiffs filed a Motion for Summary Judgment as to Liability

4 against the City of Fresno Defendants and Defendants Daryl Glenn and James Province. The

5 Caltrans Defendants filed Motions for Summary Judgment against the Plaintiffs on this date as

6 well. On May 12, 2008, Judge Wanger issued decisions on the parties’ motions for summary

7 judgment, which, among other things, granted in part and denied in part Plaintiffs motion for

8 summary judgment as to liability against the City of Fresno and denied in part and granted in

9 part the Caltrans motion for summary judgment.

10

All Parties, through their respective counsel of record, participated in a mediation session

11 before Magistrate Judge Snyder on May 20, 2008, beginning at 9:30 a.m., and ending 6:00 p.m.

12 Also in attendance for some or all of the mediation session were many of the Plaintiff class

13 representatives, and City Manager Andy Souza, Senior Risk Manager Kerry Trost, and Assistant

14 City Attorney Francine Kanne on behalf of the City of Fresno Defendants. This session resulted

15 in a settlement agreement between all Parties as set forth below.

16

17 SECTION 2. DEFINITIONS AS USED IN THE SETTLEMENT AGREEMENT

18
2.1 Definitions
19

20

For purposes of this Settlement Agreement, the following terms shall have the meanings

21 specified below:

22

2.1.1 “City of Fresno Defendants” shall mean the City of Fresno, Alan Autry, Jerry

23

Dyer, Greg Garner, Reynaud Wallace, John Rogers, and Phillip Weathers.

24
2.1.2 “Class Representatives” shall mean Doug Deatherage, Charlene Clay,
25
Cynthia Greene, Joanna Garcia, Randy Johnson, Sandra Thomas, Alphonso
26
Williams, and Jeannine Nelson.
27

28

2.1.3 “ Settlement Administrator” shall mean Liza Apper.

2
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 4 of 41

1

2.1.4 “Final Approval Hearing” means a hearing by the Court, after the notice

2

period has expired, to approve the Settlement Agreement as set forth herein.

3
2.1.5 “Final Approval Motion” shall mean a motion filed with the Court requesting
4
that the Court consider and, if it finds the settlement to be fair and reasonable, finally
5
approving the Settlement Agreement.
6

7

2.1.6 “Plaintiff Class” shall mean “all persons in the City of Fresno who were or

8

are homeless, without residence, after October 17, 2003, and whose personal

9

belongings have been unlawfully taken and destroyed in a sweep, raid or clean up by

10

any of the Defendants,” as defined in the Court’s Order dated August 14, 2007 other

11

than an Excluded Person.

12
2.1.7 “Preliminary Approval Motion” shall mean a motion filed with the Court
13
requesting that the Court consider and preliminarily approve the Settlement
14
Agreement.
15

16

2.1.8 The “Settlement Plan” shall mean the plan, attached as Exhibit A to this

17

Settlement Agreement, by which the Settlement Consideration paid to the Plaintiffs

18

and the Plaintiff Class shall be maintained, administered and paid to Plaintiffs and

19

the Plaintiff Class.

20
2.1.9 “Settlement Consideration” shall mean the consideration paid by the City
21
Defendants and the Caltrans Defendants as set forth in their respective settlement
22
agreements.
23

24

2.1.10 “The Litigation” or “This Litigation” shall mean this lawsuit and its

25

procedural history as set forth in Section 1 above.

26
2.1.11 “The Settling Parties” shall mean the parties to this settlement agreement,
27
who are the Plaintiffs and the Plaintiff Class, and the City of Fresno Defendants.
28

3
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 5 of 41

1
SECTION 3. THE TERMS OF THE SETTLEMENT
2

3

3.1 The Settlement Consideration

4
3.1.1 The City of Fresno Defendants shall pay the sum of $1,400,000 to Plaintiffs
5
and the Plaintiff Class, to be paid and allocated as set forth in the Settlement Plan.
6
This sum shall be paid into a separate, interest bearing account maintained by the
7
City of Fresno within ten (10) business days after issuance of an Order of Final
8
Approval by the Court. Once deposited, the Settlement Administrator shall have
9
exclusive access to this settlement amount, which shall be maintained for the
10
exclusive benefit of and paid to the Plaintiffs and the Plaintiff Class as provided for
11
in the Settlement Plan. In addition, within ten (10) business days after issuance of an
12
Order of Final Approval by the Court, the City of Fresno shall pay the sum of
13
$750,000 in attorneys’ fees and $100,000 in costs to counsel of record for Plaintiffs
14
and the Plaintiff Class. Payment of attorney’s fees and costs shall be to a mutually
15
agreed-upon account designated by counsel for Plaintiffs and shall constitute
16
payment in full of any obligation for attorneys’ fees and costs to any and all of
17
Plaintiffs’ counsel in the Litigation.
18

19

3.1.2 The City of Fresno Defendants and all agents and employees of the City of

20

Fresno will, for a period of not less than 5 years from the day this settlement is

21

approved by the Court, comply with the provisions of Fresno Administrative Order

22

No. 6-23 (Exhibit B hereto). Before making any change in Administrative Order 6-

23

23 during this 5 year period, the City of Fresno Defendants will meet and confer

24

with counsel for Plaintiffs and the Plaintiff Class with respect to any such change

25

and, following that meet and confer, seek leave of Court, and, absent exigent

26

circumstances, give Plaintiffs’ counsel no less than 30 days notice of its intention to

27

seek such leave and of the terms of the change. If exigent circumstances arise, the

28

City of Fresno Defendants will give as much notice as reasonably possible of any

4
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 6 of 41

1

proposed change and attempt in good faith to resolve any issue giving rise to such

2

circumstances. The Court shall retain jurisdiction of this matter to resolve any

3

dispute that may arise with respect to compliance with or changes to Administrative

4

Order 6-23.

5
3.1.3 Neither the City Defendants nor the Caltrans Defendants nor any counsel in
6
this case make any representation concerning the tax consequences of this
7
settlement.
8

9

3.2 Release

10
3.2.1 Effective upon payment of the Settlement Consideration as called for by
11
paragraphs 3.1.1 and 3.1.2 above, Plaintiffs and each member of the Plaintiff Class,
12
on behalf of themselves and each of their heirs, predecessors, successors,
13
representatives or assigns, release, relinquish and forever discharge any and all
14
claims, causes of action, demands, rights, or liabilities of any kind that either were or
15
could have been asserted in the Litigation against any of the City of Fresno
16
Defendants, including but not limited to their respective heirs, predecessors,
17
successors, employees, affiliates, divisions, parent or sister agencies, or any other
18
person or entity related or affiliated with either the City of Fresno Defendants.
19

20

3.2.2 Plaintiffs and each member of the Plaintiff Class, on behalf of themselves

21

and each of their heirs, predecessors, successors, representatives or assigns hereby

22

waive and relinquish to the fullest extent permitted by law, the provisions, rights and

23

benefits of Section 1542 of the California Civil Code, which provides:

24
“A general release does not extend to claims which the creditor does not

25

know or suspect to exist in his or her favor at the time of executing the

release, which if know by him or her must have materially affected his or

26

her settlement with the debtor.”

27

3.2.3 The Settlement Administrator shall be solely responsible for the

28

disbursement and administration of the Settlement Consideration and neither the

5
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 7 of 41

1

City of Fresno Defendants nor the Caltrans Defendants shall have any role or right to

2

object to or control in any way the disbursement of the Settlement Consideration.

3

Plaintiffs hereby release the City Defendants and the Caltrans Defendants from any

4

claim arising from decisions by or disputes with the Settlement Administrator

5

concerning disbursement of the Settlement Consideration.

6
3.3 Notice of the Settlement
7

8

3.3.1 The parties will submit to the Court a motion for preliminary approval of this

9

Settlement Agreement, which will set forth the procedure and a schedule for Notice

10

of the Settlement Agreement and for a hearing on final approval of the Settlement

11

Agreement pursuant to Federal Rule 23.

12

3.4 Approval of the Settlement

13
3.4.1 Pursuant to rule 23(e) of the Federal Rules of Civil Procedure, the parties
14
will, after providing Notice of the Settlement Agreement, file a motion seeking final
15
approval of this Settlement Agreement as fair and reasonable.
16

17

3.4.2 Each Class Representative will receive an incentive payment of $1000.00 in

18

addition to any other payment to which he or she may be entitled under this

19

Settlement, to compensate the Class Representatives for their willingness to serve as

20

Class Representatives and the time, effort and burden associated with that service.

21
3.4.3 This Court shall retain jurisdiction of this matter after these claims are
22
dismissed for a five year period commencing with the date of final approval of this
23
Settlement to enforce the terms of the settlement, and to resolve any disputes that
24
may arise between the parties concerning this Settlement Agreement.
25
3.5 General Provisions
26

27

3.5.1 The Settling Parties intend this Settlement to be final and complete resolution

28

of all disputes between and among the parties hereto with respect to the Litigation.

6
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 8 of 41

1

The Settlement compromises claims that are contested and it shall not be deemed an

2

admission by any Settling Party as to the merits of any claim or defense. The

3

Settlement Agreement was negotiated in good faith by the Settling Parties and

4

reflects a settlement that was reached voluntarily after consultation with competent

5

legal counsel. The Settling Parties agree that this Agreement is a fair, adequate and

6

reasonable resolution of the declaratory, injunctive, damages and attorneys fees

7

claims of the complaint.

8
3.5.2 This Settlement Agreement constitutes the full and entire agreement among
9
the parties hereto with regard to the subject thereof and supersedes any prior
10
promises, representations, or warranties (oral or otherwise) made by any party. No
11
party shall be liable or bound to any other party for any prior or contemporaneous
12
representation, promise or warranty (oral or otherwise) except for those expressly set
13
forth in this Settlement Agreement.
14

15

3.5.3 This Settlement Agreement shall not be amended or modified orally. It may

16

not be amended or modified without the consent or approval of all signatories by a

17

writing signed by all signatories hereto, and approved by the Court where necessary.

18

Plaintiffs have authorized Plaintiffs’ Counsel to make any and all changes to this

19

Settlement Agreement and to sign any and all amendments and modifications on

20

their behalf.

21
3.5.4 All of the exhibits to this Settlement Agreement, except the proposed forms
22
of orders, are material and integral parts hereof and are fully incorporated herein by
23
this reference. Entry of the proposed orders substantially in the form of the exhibits
24
attached to this Settlement Agreement is material and integral to the Settlement
25
Agreement.
26

27

3.5.5 The headings herein are for convenience only and shall not effect the

28

interpretation or construction of this Settlement Agreement.

7
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 9 of 41

1

3.5.6 Each counsel or other Person executing the Settlement Agreement or any of

2

its exhibits on behalf of any Settling Party hereby warrants that he or she is fully

3

authorized to enter into, and to execute, this Settlement Agreement.

4
3.5.7 Each and every term of this Settlement Agreement shall be binding upon, and
5
inure to the benefit of, the Plaintiffs and the Plaintiff Class, any of their successors
6
and personal representatives, all of which persons and entities are intended to be the
7
beneficiaries of this Settlement Agreement..
8

9

3.5.8 The Settling Parties acknowledge that it is their intent to consummate this

10

Settlement Agreement; they agree to cooperate to the extent reasonably necessary to

11

effectuate and implement all terms and conditions of the Settlement Agreement; and

12

they agree to undertake their best efforts, including all steps and efforts that may

13

become necessary, by order of the Court or otherwise, to accomplish the terms and

14

conditions of the Settlement Agreement.

15
3.5.9 This Settlement Agreement and the exhibits hereto shall be considered to
16
have been negotiated, executed and delivered, and to be wholly performed, in the
17
State of California, and the rights and obligations of the parties to the Settlement
18
Agreement shall be construed and enforced in accordance with, and governed by, the
19
internal substantive laws of the State of California, without giving effect to that
20
State’s choice of law principles.
21

22

3.5.10 For the purpose of construing or interpreting this Settlement Agreement, the

23

Settlement Agreement is deemed to have been drafted equally by all parties hereto,

24

and shall not be construed strictly for or against any party.

25
3.5.11 This Settlement Agreement may be executed in one or more counterparts.
26
All executed counterparts, and each of them, shall be deemed to be one and the same
27
instrument, provided that no party shall be bound hereby until all parties have
28

8
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 10 of 41

1

executed the Settlement Agreement. The undersigned counsel for the Settling

2

Parties shall exchange among themselves original signed counterparts, and a

3

complete set of original executed counterparts shall be filed with the Court together

4

with the Preliminary Approval Motion.

5
IN WITNESS WHEREOF, the parties hereto and their respective counsel of record
6
have executed this Settlement Agreement on the dates indicated below:
7

8 Dated: June 4, 2008 9

10

___________________________________

11

Doug Deatherage

Plaintiff

12

13

___________________________________

Charlene Clay

14

Plaintiff

15

16

___________________________________ Cynthia Greene

17

Plaintiff

18

___________________________________

19

Joanna Garcia

Plaintiff
20

21

___________________________________

22

Randy Johnson

Plaintiff

23

24

___________________________________

Sandra Thomas

25

Plaintiff

26

27

___________________________________ Alphonso Williams

28

Plaintiff

9
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 11 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPROVED: 26 27 28

___________________________________ Jeannine Nelson Plaintiff
___________________________________ On Behalf of the City of Fresno Defendant
___________________________________ Alan Autry Defendant
___________________________________ Jerry Dyer Defendant
___________________________________ Greg Garner Defendant
___________________________________ Reynaud Wallace Defendant
___________________________________ John Rogers Defendant
___________________________________ Phillip Weathers Defendant
/s/ Paul Alexander______________________ Paul Alexander Howrey LLP Attorneys for Plaintiffs

10
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 12 of 41

1

2

__________

3

Robert B. Hawk

Heller Ehrman LLP

4

Attorneys for Plaintiffs

5

6

____________________________________ Michael Risher

7

ACLU of Northern California

Attorneys for Plaintiffs

8

9

__________________________________

10

Oren Sellstrom Lawyers’ Committee For Civil Rights

11

Attorneys for Plaintiffs

12

___________________________________

13

James B. Betts

14

Betts & Wright, P.C. Attorneys for Defendants City of Fresno,

15

Alan Autry, Jerry Dyer, Greg Garner, John

Rogers, Reynaud Wallace, and PhillipWeathers

16

17

18

19

20

21

22

23

24

25

26

27

28

11
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 13 of 41

1

2

__________

3

Robert B. Hawk

Heller Ehrman LLP

4

Attorneys for Plaintiffs

5

6

____________________________________ Michael Risher

7

ACLU of Northern California

Attorneys for Plaintiffs

8

9

__________________________________

10

Oren Sellstrom Lawyers’ Committee For Civil Rights

11

Attorneys for Plaintiffs

12

/s/ James B. Betts______________________

13

James B. Betts

14

Betts & Wright, P.C. Attorneys for Defendants City of Fresno,

15

Alan Autry, Jerry Dyer, Greg Garner, John

Rogers, Reynaud Wallace, and PhillipWeathers

16

17

18

19

20

21

22

23

24

25

26

27

28

11
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 14 of 41
Exhibit A

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 15 of 41
EXHIBIT A
THE SETTLEMENT PLAN
This Settlement Plan shall set forth and govern the maintenance, administration and distribution of the Settlement Fund created pursuant to the Settlement Agreement reached in Kincaid et al v. City of Fresno, et al, Action No. 06-CV-1445OWW.
SECTION 1. MAINTENANCE AND ADMINISTRATION OF SETTLEMENT FUND.
1.1 As provided for in the Settlement Agreement, the Settlement Fund shall be sequestered in a separate, interest-bearing account or accounts to be maintained by the City of Fresno and solely administered by the Settlement Administrator approved by the Court. Costs of administration will be borne by the Settlement Fund as provided herein but shall be maintained at the lowest level that is practical. All interest earned on the accounts into which the Settlement Fund is transferred shall be for the benefit of the Class members.
1.2 The Settlement Administrator shall be Liza Apper. It is contemplated that Liza Apper shall serve as Settlement Administrator throughout the payment of the Settlement Fund to the Plaintiff Class. In the event that Liza Apper shall resign or be disqualified, counsel for Plaintiffs and the Plaintiff class will propose a new Settlement Administrator for approval by the Court. It is also contemplated that Liza Apper shall, to the extent permitted by law, seek legal advice and counsel in connection with the reports required under this Settlement Plan.
1.3 The Settlement Administrator is authorized to draw upon the account or accounts in which the Settlement Fund is maintained for all payments to be made to or on behalf of every person certified by the Settlement Administrator to be a valid Class member in accordance with the terms of this Settlement Plan. It is anticipated that these payments will be made in the manner set forth in this Settlement Plan. In the event of an unusual or unanticipated need of a member of a member of the Plaintiff Class, the Settlement Administrator is authorized to seek approval of the Court to respond to such unanticipated need.
1.4 It is anticipated that the actual payments under this Settlement Plan will commence as soon as practicable after the claims period ends.

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 16 of 41
SECTION 2. THE ALLOCATION OF THE SETTLEMENT FUND
2.1 The Settlement Fund shall be allocated into two separate amounts, which shall be referred to as the “Cash Fund” and the “Living Allowance Fund.” The amounts in these two funds shall be paid in accordance with the provisions of this Settlement Plan solely to or for the benefit of members of the Plaintiff Class and for administration of the Settlement Plan as provided herein.
2.2 The initial amount of the Cash Fund shall be $485,000. The initial amount of the Living Allowance Fund shall be $1,000,000.
SECTION 3. THE DETERMINATION AND VERIFICATION OF CLASS MEMBERS AND THEIR ENTITLEMENT TO RECEIVE THE CASH FUND AND THE LIVING ALLOWANCE FUND
3.1 Any potential member of the Plaintiff Class who seeks to participate in payments from the Cash Fund and/or the Living Allowance Fund shall file with the Settlement Administrator a verified claim form, stating under penalty of perjury that he or she falls within the Class, defined as “all persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or clean up by any of the Defendants.” The verified claim form shall also describe the nature of the loss suffered. The form shall be as set forth as an attachment to the motion for preliminary approval of the Settlement Agreement. Claims forms may but need not include attachments such as receipts, declarations, or transcipts of testimony. The timing and deadline for filing such a claim shall be as set forth in the Order of the Court giving preliminary approval to the Settlement Agreement and will be included in the Notice of this Settlement Agreement provided to the class. Claimants may additionally request to meet with the Settlement Administrator in person to supplement their claims orally and/or to seek the assistance of the Settlement Administrator in completing a written claim form. Verified Claim forms must be received by the Settlement Administrator within 30 days after final approval of the Settlement Agreement
3.2 The Settlement Administrator shall review the claim forms submitted and shall determine which claims are valid and at which Level, as set forth below. Once the Settlement Administrator has made that determination, the individual who submitted the claim shall be a verified Class member for purposes of the Settlement Agreement and this Settlement Plan. The determination of the Settlement Administrator as to the validity of the claim shall be final and none of the Parties shall retain any right to object to any determination of the Settlement Administrator concerning membership in the Plaintiff Class or eligibility to receive either the Cash Fund or the Living Allowance Fund except as expressly stated in this Plan.
2

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 17 of 41
3.3 For purposes of payments of the Cash Fund and the Living Allowance Fund, there will be three levels of verified Class members, Level 1, Level 2, Level 3, Level 4 and Level 5 as follows:
3.3.1 Level 1 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, had their property seized and destroyed in a sweep or clean up by any of the Defendants after October 17, 2003; who were not present when their property was seized and destroyed, whose property was of a nature that can be reasonably be replaced for $500 or less, and who did not suffer any significant emotional trauma or injury as a result of the seizure and destruction of their property.
3.3.2 Level 2 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, had their property seized in a sweep or cleanup and suffered a more substantial loss than a Level 1 Class member, but who appear not to have suffered significant emotional harm or trauma associated with that destruction.
3.3.3 Level 3 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, suffered a more substantial loss of property than either a Level 1 or Level 2 Class member, who appear not to have suffered significant emotional loss or trauma, and who, considering the number of destructions he or she suffered and the nature of those destructions, appear to have suffered total injury and damage at a level lower than a Level 4 or Level 5 Class member as described below.
3.3.4 Level 4 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, suffered more substantial total loss and injury than a Level 1, 2 or 3 Class member, including multiple destructions of his or her property, destruction of his or her property in a manner causing emotional harm or trauma, destruction of his or her property in a situation in which he or she was present, and other factors indicating a total loss and injury greater than a Level 1, 2 or 3 Class member, but not as great as a Level 5 Class members.
3.3.5 Level 5 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator suffered the most substantial injury and damage and therefore have the largest claims. The following factors will be used to determine whether an individual class member is a Level 5 class member: i. whether the individual was present at the time of the seizure and destruction of his or her property, ii. whether the individual suffered multiple seizures and destructions of his or her property, iii. the nature and value of the property that was seized and destroyed, iv. whether the seizure and destruction of
3

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 18 of 41
the property appear to have caused significant emotional pain and suffering, and v. any other factor that heightens or worsens the degree of loss suffered.
3.4 After the close of the claims period, the Administrator shall determine the total number of verified Class members in each Level. The Administrator shall then apportion the Living Allowance and the Cash Fund as described below in Section 4 below.
3.5 The Claims Administrator will provide each claimant with a written notice that specifies the Adminstrator’s determination of: a) whether or not the claimant is a Class member; b) if so, at which Level; c) the amount of Cash Fund and Living Allowance Fund, if any, the claimant is entitled to. The written notice shall also describe the procedures for accessing the Fund(s) and what assistance is available to assist in the process.
SECTION 4. THE DISTRIBUTION OF THE CASH FUND AND THE LIVING ALLOWANCE FUND
4.1 The Cash Fund shall be distributed in cash or cash equivalent (such as a transfer to a bank account as set forth below) to members of the Plaintiff Class whose membership in the Plaintiff Class has been verified pursuant to the terms of this Settlement Plan, in accordance with the provisions of this Settlement Plan.
4.2 The Settlement Administrator will pay the Cash Fund to verified members of the Plaintiff Class in a manner set forth below and designed to meet the immediate cash needs of the individual, to respect his or her dignity, and to provide for his or her needs for cash in a safe and responsible manner. While the Settlement Administrator shall have authority to vary from the terms set forth below, in general the cash payments shall be made as follows:
4.2.1 Members of the Plaintiff Class will be encouraged to and assisted in the establishment of bank accounts to which cash can be transferred by the Settlement Administrator, so that Class members can obtain the cash as they determine. If a bank account is established, the Settlement Administrator shall be authorized to transfer a Class member’s entire allocation of the Cash Fund to his or her bank account.
4.2.2 Members of the Plaintiff Class who do not have bank accounts shall be paid their allocation of the Cash Fund in a check or currency, over time. Such payments shall generally be limited to $100 per week but may be larger in the discretion of the Settlement Administrator.
4

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 19 of 41
4.2.3 Any Member of the Plaintiff Class may elect to place all or any portion of his or her allocation of the Cash Fund into the Living Allowance Fund, if he or she wishes for both sums to be distributed as set forth for the Living Allowance Fund below.
4.3 The Settlement Administrator will pay the Living Allowance to third parties on behalf of verified members of the Plaintiff Class in the manner set forth below and designed to maximize the actual benefit of the Living Allowance to each verified Class member entitled to receive a share of the Living Allowance. Any of the following may be paid from the Living Allowance: i. rent, including pre-paid rent; ii. move-in costs (e.g., first and last months’ rent and security deposit); iii. utilities, including pre-paid utilities; iv. transportation costs, including but not limited to payments for an automobile or recreational vehicle, and v. any other payment to a third party for necessities of life for the Class member. The Parties shall not be entitled to object to the determination of the Settlement Administrator as to the propriety or entitlement to Living Allowance payments.
4.4 The Settlement Administrator shall, subject to the limitation in paragraph 4.9 below, pay the sum of $500 from the Cash Fund to each Level 1 Class member, said sum to be paid either in two or three payments and on a date or dates (if the Level 1 payment is made in periodic payments) that balance the needs of the Level 1 Class member while keeping any cost of administration as low as reasonably possible.
4.5 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1000 from the Cash Fund to each Level 2 Class member, in such a manner as to maximize the benefit of both amounts to each such Class member.
4.6 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1,000 from the Cash Fund to and $1,500 from the Living Allowance fund each Level 3 Class member in such a manner as to maximize the benefit of both amounts to each such Class member.
4.7 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1,500 from the Cash Fund to each Level 4 Class member and make Living Allowance Payments of $3,500 from the Living Allowance fund for each Level 4 Class member in such a manner as to maximize the benefit of both amounts to each such Class member.
4.8 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $5,000 from the Cash Fund to each Level 5 Class member and make Living Allowance Payments of $9,000 from the Living Allowance fund for each Level 5 Class member in such a manner as to maximize the benefit of both amounts to each such member.
5

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 20 of 41
4.9 To the extent that either more or fewer Class Members are certified as valid by the Settlement Administrator than anticipated or and to the extent that the Class members at each Level vary from that anticipated, the payments from the Cash Fund and the Living Allowance Fund may be varied, provided that the proportions set forth in paragraphs 4.4 through 4.8, above are, as nearly as practicable, maintained. It is the intent of this Settlement Plan that the entire Cash Fund and the entire Living Allowance Fund shall go to benefit the Plaintiff Class in the manner set forth in this Settlement Plan.
4.10 Once a Class member has been verified by the Settlement Administrator as a Class member at any given Level, he or she shall be entitled to receive both the payments from the Cash Fund and the payments from the Living Allowance Fund and shall not lose this right if temporarily unable to receive the benefit for any reason. If a person who has been certified by the Settlement Administrator as a valid Class member dies before all of his or her distributions have been made, then any undistributed amount would revert to either the Cash Fund or the Living Allowance Fund.
4.11 Three years from the final approval of the Settlement Agreement, or any time thereafter, the Settlement Administrator may distribute all remaining money in the Cash and Living Allowance Funds to Level 1, 2, 3, 4 or 5 Class members in amounts determined by the Settlement Administrator to be in keeping with the overall distribution set forth in this Settlement Plan.
4.12 To the extent that the Court approves an incentive award for the Class representative plaintiffs pursuant to the Settlement Agreement, that amount shall be paid by the Settlement Administrator from the Cash Fund in the manner set forth in paragraph 4.2 an its subparagraphs above.
SECTION 5. COSTS OF ADMINISTRATION AND REPORTING
5.1 The costs of administering both the Cash Fund and the Living Allowance Fund shall be maintained at the lowest possible level and shall not exceed 3% of the total, and shall be paid out of the two Funds in proportion to the size of the Funds, and the Settlement Administrator is authorized to make such payments on a monthly basis until both the Cash Fund and the Living Allowance Fund are fully paid out.
5.2 The Settlement Administrator shall prepare and file with the Court a written report of all payments from the Cash Fund and from the Living Allowance Fund within three months of the date the first payment is made from either Fund, and shall prepare and file with the Court and with all counsel of record such a written report each six months thereafter until both the Cash Fund and the Living Allowance Fund are fully distributed. Such reports shall set forth in summary fashion the manner of and purpose for which the Cash Fund and Living Allowance Fund were expended during the period of the report.
6

Case 1:06-cv-01445-OWW-SMS Document 304-2 Filed 06/05/2008 Page 21 of 41 SECTION 6. RESOLUTION OF DISPUTES 6.1 The Court shall retain jurisdiction to resolve any issue that may arise that is not anticipated in connection with the administration of this Settlement Plan, including but not limited to any change contemplated by paragraph 4.9 above. Should such an issue arise, it may be resolved at an informal hearing by the Court, without the necessity of briefing but in a manner designed to facilitate practical and effective resolution of any dispute or issue. The determination of the Court resolving any issue that may arise in connection with the administration of this Settlement Agreement shall be final and binding. END OF DOCUMENT
7

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Exhibit B

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 Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 1 of 25

1 HOWREY LLP

PAUL ALEXANDER (SBN 49997)

2 1950 University Ave., 4th Floor
East Palo Alto, CA 94303

3

Telephone: (650) 798-3500 Facsimile: (650) 798-3600

4 E-mail: alexanderp@howrey.com

HELLER EHRMAN LLP
5 ROBERT B. HAWK (SBN 118054)

MELYSSA E. MINAMOTO (SBN 245458)

6 ERIC LLOYD (SBN 254390)

275 Middlefield Rd.

7 Menlo Park, CA 94025-3506

Telephone: (650) 324-7000

8

Facsimile: (650) 324-0638 E-mail: robert.hawk@hellerehrman.com

9 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)

131 Steuart Street
11 San Francisco, CA 94105

Telephone: (415) 543-9444

12 Facsimile: (415) 543-0296
E-mail: osellstrom@lccr.com

13
ACLU OF NORTHERN CALIFORNIA

14

ALAN L. SCHLOSSER (SBN 49957) MICHAEL T. RISHER (SBN 191627)

15

39 Drumm Street San Francisco, CA 94111

Telephone: (415) 621-2493
16 Facsimile: (415) 255-8437

E-mail: mrisher@aclunc.org

17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

19

Civil Action No.: 06-CV-1445-OWW

20 Pamela Kincaid, Doug Deatherage, Charlene Clay,
Cynthia Greene, Joanna Garcia, Randy Johnson,
21 Sandra Thomas, Alphonso Williams, and Jeannine
Nelson, Individually on Behalf of Themselves and
22 All Others Similarly Situated,

23

v.

Plaintiff,

24 City of Fresno, Alan Autry, Jerry Dyer, Greg
Garner, Reynaud Wallace, John Rogers, Phillip
25 Weathers, Will Kempton, James Province, Daryl
Glenn, Individually and in Their Official Capacities;
26 DOES 1-100, inclusive,

CLASS ACTION
SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND THE PLAINTIFF CLASS AND DEFENDANTS WILL KEMPTON, JAMES PROVINCE, AND DARYL GLENN

27

Defendant.

28

SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 2 of 25

11

SETTLEMENT AGREEMENT

2

This Settlement Agreement, effective as of May 20, 2008, is made and entered into

3 by and among: (i) Plaintiffs Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia,

4 Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson on behalf of

5 themselves and each Plaintiff Class Member, defined in the Court’s Order dated August 14, 2007

6 as “all persons in the City of Fresno who were or are homeless, without residence, after October

7 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep,

8 raid or clean up by any of the Defendants” and (ii) Defendants Will Kempton, James Province

9 and Darryl Glenn (collectively “Caltrans Defendants”).

10

11 SECTION 1. THE LITIGATION

12
Plaintiffs filed the original Complaint on against the Caltrans Defendants and against the
13
City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers and Phillip
14
Weathers (collectively “City of Fresno Defendants”) October 17, 2006, and filed a Second
15
Amended Complaint on March 1, 2007. Plaintiffs’ Complaint asserted that Defendants violated
16
Plaintiffs’ Fourth Amendment right against unreasonable searches and seizures, Fourteenth
17
Amendment rights to Due Process and Equal Protection of the Law, all pursuant to 42 U.S.C. §
18
1983. The Complaint also asserted that some Defendants violated the Bane Act, Cal. Civ. Code
19
§ 52.1, Cal. Gov. Code. § 2080, and committed unlawful conversion. Judge Wanger granted a
20
Temporary Restraining Order against the City of Fresno Defendants on October 25, 2006. In
21
November 2006, Judge Wanger held a Hearing on the Preliminary Injunction, and granted a
22
Preliminary Injunction against the City Defendants on December 8, 2006.
23
On March 16, 2007, Judge Wanger denied Defendant Will Kempton’s motion to dismiss
24
all causes of action pursuant to Eleventh Amendment immunity. Subsequently, Judge Wanger
25
held a settlement conference for all Parties in his chambers on April 12, 2007. These settlement
26
discussions were unsuccessful.
27
Judge Wanger granted Plaintiffs’ Motion for Class Certification on August 14, 2007,
28

1
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 3 of 25

1 allowing Plaintiffs to proceed on behalf of a class of “All persons in the City of Fresno who were

2 or are homeless, without residence, after October 17, 2003, and whose personal belongings have

3 been unlawfully taken and destroyed in a sweep, raid or cleanup by any of the Defendants.”

4

On February 28, 2008, the Caltrans Defendants filed motions for summary judgment as

5 to liability. Plaintiffs also filed a Motion for Summary Judgment as to Liability against the City

6 of Fresno Defendants and Defendants Daryl Glenn and James Province on February 28, 2008.

7 On May 12, 2008, Judge Wanger issued decisions on the parties’ motions for summary

8 judgment, which, among other things, granted in part and denied in part Plaintiffs’ motion for

9 summary judgment as to liability against the City of Fresno. Judge Wanger dismissed all state

10 law based causes of action against Province and Glenn and denied all Caltrans Defendants’

11 Motions as to their Federal law based defenses. The Court also denied Plaintiffs’ Motion as to

12 Defendants Province and Glenn in its entirety and denied Defendant Kempton’s Motion in its

13 entirety.

14

All Parties, through their respective counsel of record, participated in a mediation session

15 before Magistrate Judge Snyder on May 20, 2008, beginning at 9:30 a.m., and ending 6:00 p.m.

16 Also in attendance for some or all of the mediation session were many of the Plaintiff class

17 representatives, and City Manager Andy Souza, Senior Risk Manager Kerry Trost, and Assistant

18 City Attorney Francine Kanne on behalf of the City of Fresno Defendants. This session resulted

19 in a settlement agreement between the Plaintiffs and the Caltrans Defendants as set forth below.

20

21 SECTION 2. DEFINITIONS AS USED IN THE SETTLEMENT AGREEMENT

22
2.1 Definitions
23

24

For purposes of this Settlement Agreement, the following terms shall have the meanings

25 specified below:

26

2.1.1 “Class Representatives” shall mean Doug Deatherage, Charlene Clay,

27

Cynthia Greene, Joanna Garcia, Randy Johnson, Sandra Thomas, Alphonso

28

Williams, and Jeannine Nelson.

2
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

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1

2.1.2 “Caltrans Defendants” shall mean Will Kempton, James Province, and

2

Darryl Glenn.

3
2.1.3 “Class Settlement Administrator” shall mean Liza Apper.
4

5

2.1.4 “Final Approval Hearing” means a hearing by the Court, after the notice

6

period has expired, to approve the Settlement Agreement as set forth herein.

7
2.1.5 “Final Approval Motion” shall mean a motion filed with the Court requesting
8
that the Court consider and, if it finds the settlement to be fair and reasonable, finally
9
approving the Settlement Agreement.
10

11

2.1.6 “Plaintiff Class” shall mean “all persons in the City of Fresno who were or

12

are homeless, without residence, after October 17, 2003, and whose personal

13

belongings have been unlawfully taken and destroyed in a sweep, raid or clean up by

14

any of the Defendants,” as defined in the Court’s Order dated August 14, 2007 other

15

than an Excluded Person.

16
2.1.7 “Preliminary Approval Motion” shall mean a motion filed with the Court
17
requesting that the Court consider and preliminarily approve the Settlement
18
Agreement.
19

20

2.1.8 The “Settlement Plan” shall mean the plan, attached as Exhibit A to this

21

Settlement Agreement, by which the Settlement Consideration paid pursuant to this

22

Settlement Agreement to the Plaintiffs and the Plaintiff Class shall be maintained,

23

administered and paid to Plaintiffs and the Plaintiff Class.

24
2.1.9 “The Litigation” or “This Litigation” shall mean this lawsuit and its
25
procedural history as set forth in Section 1 above.
26

27

2.1.10 “The Settling Parties” shall mean the parties to this settlement agreement,

28

who are the Plaintiffs and the Plaintiff Class and the Caltrans Defendants.

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1
SECTION 3. THE TERMS OF THE SETTLEMENT
2

3

3.1 The Settlement Consideration

4
3.1.1 The Caltrans Defendants shall pay the sum of $85,000 to the Plaintiffs and
5
the Plaintiff Class which shall be paid within twenty (20) business days after
6
issuance of the Order of Final Approval by the Court or twenty (20) business days
7
after Plaintiffs and the Plaintiff Class provide a completed, executed Payee Data
8
Record (“PDR”, State of California Form STD. 204), whichever is later, payment to
9
be made to each recipient(s) designated in a completed, executed PDR. Plaintiffs
10
and the Plaintiff Class shall deposit the $85,000 into an interest bearing account to
11
be designated by the Settlement Administrator and maintained for the exclusive
12
benefit of and paid to the Plaintiffs and the Plaintiff Class as provided in the
13
Settlement Plan. If this sum is not paid on the date called for by this paragraph, the
14
amount shall bear interest at the California statutory rate from the date payment is
15
due until the date paid. This sum of $85,000 shall include all costs and attorney fees
16
otherwise recoverable against the Caltrans Defendants in this action.
17

18

3.1.2 The Caltrans Defendants will, for a period of not less than 5 years from the

19

date this Settlement Agreement is finally approved by the Court, follow its written

20

procedures for handling the personal property of homeless persons as set forth in

21

Exhibit B hereto. The Caltrans defendants will also follow the legal principles set

22

forth in the Court’s Preliminary Injunction in this case for the same five year period.

23

The Court will retain jurisdiction to resolve any dispute that may arise with respect

24

to compliance with this paragraph.

25
3.1.3 There will be included in the Notice provided to the Plaintiff Class proposed
26
in Plaintiffs’ motion for preliminary approval of the Settlement Agreement a
27

28

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1

statement encouraging the homeless in Fresno not to set up camps or otherwise

2

trespass or illegally encroach upon Caltrans property.

3
3.1.4 Plaintiffs and the Plaintiff Class agree that they shall call no official or
4
employee of the California Department of Transportation as a witness at a trial on
5
the merits if this action should proceed to trial against the City Defendants.
6

7

3.2 Release

8
3.2.1 Effective upon payment of the Settlement Consideration as called for by
9
paragraphs B.1 and B.2 above, Plaintiffs and each member of the Plaintiff Class, on
10
behalf of themselves and each of their heirs, predecessors, successors,
11
representatives or assigns, release, relinquish and forever discharge any and all
12
claims, causes of action, demands, rights, or liabilities of any kind that either were or
13
could have been asserted in the Litigation against any of the Caltrans Defendants,
14
including but not limited to their respective heirs, predecessors, successors,
15
employees, affiliates, divisions, parent or sister agencies, or any other person or
16
entity related or affiliated with the Caltrans Defendants.
17

18

3.2.2 Plaintiffs and each member of the Plaintiff Class, on behalf of themselves

19

and each of their heirs, predecessors, successors, representatives or assigns hereby

20

waive and relinquish to the fullest extent permitted by law, the provisions, rights and

21

benefits of Section 1542 of the California Civil Code, which provides:

22
“A general release does not extend to claims which the creditor does not

23

know or suspect to exist in his or her favor at the time of executing the

release, which if know by him or her must have materially affected his or

24

her settlement with the debtor.”

25

3.3 Notice of the Settlement

26

3.3.1 The Settling Parties will submit at the earliest possible opportunity to the

27

Court a motion for preliminary approval of this Settlement Agreement (along with a

28

request for a short continuance of the trial date in this matter to permit time for this

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1

Settlement Agreement to be finally approved), which will set forth the procedure and

2

a schedule for Notice of the Settlement Agreement and for a hearing on final

3

approval of the Settlement Agreement pursuant to Federal Rule 23.

4

3.4 Approval of the Settlement

5
3.4.1 Pursuant to rule 23(e) of the Federal Rules of Civil Procedure, the parties will,
6
after providing Notice of the Settlement Agreement, file a motion initially seeking
7
preliminary approval of this Settlement Agreement and a stay of this matter as
8
against the Caltrans defendants, and thereafter file a motion seeking final approval of
9
this Settlement Agreement as fair and reasonable.
10

11

3.4.2 Each Class Representative will receive an incentive payment of $1,000.00 in

12

addition to any other payment to which he or she may be entitled under this

13

Settlement, to compensate the Class Representatives for their willingness to serve as

14

Class Representatives and the time, effort and burden associated with that service,

15

provided that the total amount of incentive payment from this settlement and any

16

settlement with the City Defendants shall not exceed one thousand dollars ($1,000).

17
3.4.3 This Court shall retain jurisdiction of this matter after these claims are
18
dismissed for a five year period commencing with the date of final approval of this
19
Settlement to enforce the terms of the settlement, and to resolve any disputes that
20
may arise between the parties concerning this Settlement Agreement.
21

22

3.5 General Provisions

23
3.5.1 The Settling Parties intend this Settlement to be final and complete resolution
24
of all disputes between and among the parties hereto with respect to the Litigation.
25
The Settlement compromises claims that are contested and it shall not be deemed an
26
admission by any Settling Party as to the merits of any claim or defense. The
27
Settlement Agreement was negotiated in good faith by the Settling Parties and
28

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1

reflects a settlement that was reached voluntarily after consultation with competent

2

legal counsel. The Settling Parties agree that this Agreement is a fair, adequate and

3

reasonable resolution of the declaratory, injunctive, damages and attorneys fees

4

claims of the complaint.

5
3.5.2 This Settlement Agreement constitutes the full and entire agreement among
6
the parties hereto with regard to the subject thereof and supersedes any prior
7
promises, representations, or warranties (oral or otherwise) made by any party. No
8
party shall be liable or bound to any other party for any prior or contemporaneous
9
representation, promise or warranty (oral or otherwise) except for those expressly set
10
forth in this Settlement Agreement.
11

12

3.5.3 This Settlement Agreement shall not be amended or modified orally. It may

13

not be amended or modified without the consent or approval of all signatories by a

14

writing signed by all signatories hereto, and approved by the Court where necessary.

15

Plaintiffs have authorized Plaintiffs’ Counsel to make any and all changes to this

16

Settlement Agreement and to sign any and all amendments and modifications on

17

their behalf.

18
3.5.4 All of the exhibits to this Settlement Agreement, except the proposed forms of
19
orders, are material and integral parts hereof and are fully incorporated herein by this
20
reference. Entry of the proposed orders substantially in the form of the exhibits
21
attached to this Settlement Agreement is material and integral to the Settlement
22
Agreement.
23

24

3.5.5 The headings herein are for convenience only and shall not effect the

25

interpretation or construction of this Settlement Agreement.

26

27

28

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1

3.5.6 Each counsel executing the Settlement Agreement or any of its exhibits on

2

behalf of any Settling Party hereby warrants that he or she is fully authorized to enter

3

into, and to execute, this Settlement Agreement.

4
3.5.7 Each and every term of this Settlement Agreement shall be binding upon, and
5
inure to the benefit of, the Plaintiffs and the Plaintiff Class, any of their successors
6
and personal representatives, all of which persons and entities are intended to be the
7
beneficiaries of this Settlement Agreement.
8

9

3.5.8 The Settling Parties acknowledge that it is their intent to consummate this

10

Settlement Agreement; they agree to cooperate to the extent reasonably necessary to

11

effectuate and implement all terms and conditions of the Settlement Agreement; and

12

they agree to undertake their best efforts, including all steps and efforts that may

13

become necessary, by order of the Court or otherwise, to accomplish the terms and

14

conditions of the Settlement Agreement.

15
3.5.9 This Settlement Agreement and the exhibits hereto shall be considered to have
16
been negotiated, executed and delivered, and to be wholly performed, in the State of
17
California, and the rights and obligations of the parties to the Settlement Agreement
18
shall be construed and enforced in accordance with, and governed by, the internal
19
substantive laws of the State of California, without giving effect to that State’s
20
choice of law principles.
21

22

3.5.10 For the purpose of construing or interpreting this Settlement Agreement, the

23

Settlement Agreement is deemed to have been drafted equally by all parties hereto,

24

and shall not be construed strictly for or against any party.

25
3.5.11 This Settlement Agreement may be executed in one or more counterparts.
26
All executed counterparts, and each of them, shall be deemed to be one and the same
27
instrument, provided that no party shall be bound hereby until all parties have
28

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SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

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1

executed the Settlement Agreement. The undersigned counsel for the Settling

2

Parties shall exchange among themselves original signed counterparts, and a

3

complete set of original executed counterparts shall be filed with the Court together

4

with the Preliminary Approval Motion.

5
IN WITNESS WHEREOF, the Settling Parties hereto, through their respective
6
counsel of record, have executed this Settlement Agreement on the dates indicated below:
7

8 Dated: June 4, 2008 9

10

___________________________________

Doug Deatherage

11

Plaintiff

12

___________________________________

13

Charlene Clay

14

Plaintiff

15

___________________________________

16

Cynthia Greene

Plaintiff

17

18

___________________________________

Joanna Garcia

19

Plaintiff

20

21

___________________________________

Randy Johnson

22

Plaintiff

23

___________________________________

24

Sandra Thomas

25

Plaintiff

26

___________________________________

27

Alphonso Williams

Plaintiff

28

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1 2 3 4 5 6 7 8 9
APPROVED
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

___________________________________ Jeannine Nelson Plaintiff
___________________________________ David P. Harris On Behalf of Defendants Will Kempton, James Province and Daryl Glenn
_/s/ Paul Alexander_____________________ Paul Alexander Howrey LLP Attorneys for Plaintiffs
_____________________________________ Robert B. Hawk Heller Ehrman LLP Attorneys for Plaintiffs
______________________________________ Michael Risher ACLU of Northern California Attorneys for Plaintiffs
_____________________________________ Oren Sellstrom Lawyers’ Committee For Civil Rights Attorneys for Plaintiffs
___________________________________ David P. Harris Attorney for Defendants Will Kempton, James Province and Daryl Glenn

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SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 13 of 25
Exhibit A

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 14 of 25
EXHIBIT A
THE SETTLEMENT PLAN
This Settlement Plan shall set forth and govern the maintenance, administration and distribution of the Settlement Fund created pursuant to the Settlement Agreement reached in Kincaid et al v. City of Fresno, et al, Action No. 06-CV-1445OWW.
SECTION 1. MAINTENANCE AND ADMINISTRATION OF SETTLEMENT FUND.
1.1 As provided for in the Settlement Agreement, the Settlement Fund shall be sequestered in a separate, interest-bearing account or accounts to be maintained by the City of Fresno and solely administered by the Settlement Administrator approved by the Court. Costs of administration will be borne by the Settlement Fund as provided herein but shall be maintained at the lowest level that is practical. All interest earned on the accounts into which the Settlement Fund is transferred shall be for the benefit of the Class members.
1.2 The Settlement Administrator shall be Liza Apper. It is contemplated that Liza Apper shall serve as Settlement Administrator throughout the payment of the Settlement Fund to the Plaintiff Class. In the event that Liza Apper shall resign or be disqualified, counsel for Plaintiffs and the Plaintiff class will propose a new Settlement Administrator for approval by the Court. It is also contemplated that Liza Apper shall, to the extent permitted by law, seek legal advice and counsel in connection with the reports required under this Settlement Plan.
1.3 The Settlement Administrator is authorized to draw upon the account or accounts in which the Settlement Fund is maintained for all payments to be made to or on behalf of every person certified by the Settlement Administrator to be a valid Class member in accordance with the terms of this Settlement Plan. It is anticipated that these payments will be made in the manner set forth in this Settlement Plan. In the event of an unusual or unanticipated need of a member of a member of the Plaintiff Class, the Settlement Administrator is authorized to seek approval of the Court to respond to such unanticipated need.
1.4 It is anticipated that the actual payments under this Settlement Plan will commence as soon as practicable after the claims period ends.

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 15 of 25
SECTION 2. THE ALLOCATION OF THE SETTLEMENT FUND
2.1 The Settlement Fund shall be allocated into two separate amounts, which shall be referred to as the “Cash Fund” and the “Living Allowance Fund.” The amounts in these two funds shall be paid in accordance with the provisions of this Settlement Plan solely to or for the benefit of members of the Plaintiff Class and for administration of the Settlement Plan as provided herein.
2.2 The initial amount of the Cash Fund shall be $485,000. The initial amount of the Living Allowance Fund shall be $1,000,000.
SECTION 3. THE DETERMINATION AND VERIFICATION OF CLASS MEMBERS AND THEIR ENTITLEMENT TO RECEIVE THE CASH FUND AND THE LIVING ALLOWANCE FUND
3.1 Any potential member of the Plaintiff Class who seeks to participate in payments from the Cash Fund and/or the Living Allowance Fund shall file with the Settlement Administrator a verified claim form, stating under penalty of perjury that he or she falls within the Class, defined as “all persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or clean up by any of the Defendants.” The verified claim form shall also describe the nature of the loss suffered. The form shall be as set forth as an attachment to the motion for preliminary approval of the Settlement Agreement. Claims forms may but need not include attachments such as receipts, declarations, or transcipts of testimony. The timing and deadline for filing such a claim shall be as set forth in the Order of the Court giving preliminary approval to the Settlement Agreement and will be included in the Notice of this Settlement Agreement provided to the class. Claimants may additionally request to meet with the Settlement Administrator in person to supplement their claims orally and/or to seek the assistance of the Settlement Administrator in completing a written claim form. Verified Claim forms must be received by the Settlement Administrator within 30 days after final approval of the Settlement Agreement
3.2 The Settlement Administrator shall review the claim forms submitted and shall determine which claims are valid and at which Level, as set forth below. Once the Settlement Administrator has made that determination, the individual who submitted the claim shall be a verified Class member for purposes of the Settlement Agreement and this Settlement Plan. The determination of the Settlement Administrator as to the validity of the claim shall be final and none of the Parties shall retain any right to object to any determination of the Settlement Administrator concerning membership in the Plaintiff Class or eligibility to receive either the Cash Fund or the Living Allowance Fund except as expressly stated in this Plan.
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3.3 For purposes of payments of the Cash Fund and the Living Allowance Fund, there will be three levels of verified Class members, Level 1, Level 2, Level 3, Level 4 and Level 5 as follows:
3.3.1 Level 1 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, had their property seized and destroyed in a sweep or clean up by any of the Defendants after October 17, 2003; who were not present when their property was seized and destroyed, whose property was of a nature that can be reasonably be replaced for $500 or less, and who did not suffer any significant emotional trauma or injury as a result of the seizure and destruction of their property.
3.3.2 Level 2 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, had their property seized in a sweep or cleanup and suffered a more substantial loss than a Level 1 Class member, but who appear not to have suffered significant emotional harm or trauma associated with that destruction.
3.3.3 Level 3 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, suffered a more substantial loss of property than either a Level 1 or Level 2 Class member, who appear not to have suffered significant emotional loss or trauma, and who, considering the number of destructions he or she suffered and the nature of those destructions, appear to have suffered total injury and damage at a level lower than a Level 4 or Level 5 Class member as described below.
3.3.4 Level 4 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator, suffered more substantial total loss and injury than a Level 1, 2 or 3 Class member, including multiple destructions of his or her property, destruction of his or her property in a manner causing emotional harm or trauma, destruction of his or her property in a situation in which he or she was present, and other factors indicating a total loss and injury greater than a Level 1, 2 or 3 Class member, but not as great as a Level 5 Class members.
3.3.5 Level 5 class members shall be those members of the Plaintiff Class who, in the judgment of the Settlement Administrator suffered the most substantial injury and damage and therefore have the largest claims. The following factors will be used to determine whether an individual class member is a Level 5 class member: i. whether the individual was present at the time of the seizure and destruction of his or her property, ii. whether the individual suffered multiple seizures and destructions of his or her property, iii. the nature and value of the property that was seized and destroyed, iv. whether the seizure and destruction of
3

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 17 of 25
the property appear to have caused significant emotional pain and suffering, and v. any other factor that heightens or worsens the degree of loss suffered.
3.4 After the close of the claims period, the Administrator shall determine the total number of verified Class members in each Level. The Administrator shall then apportion the Living Allowance and the Cash Fund as described below in Section 4 below.
3.5 The Claims Administrator will provide each claimant with a written notice that specifies the Adminstrator’s determination of: a) whether or not the claimant is a Class member; b) if so, at which Level; c) the amount of Cash Fund and Living Allowance Fund, if any, the claimant is entitled to. The written notice shall also describe the procedures for accessing the Fund(s) and what assistance is available to assist in the process.
SECTION 4. THE DISTRIBUTION OF THE CASH FUND AND THE LIVING ALLOWANCE FUND
4.1 The Cash Fund shall be distributed in cash or cash equivalent (such as a transfer to a bank account as set forth below) to members of the Plaintiff Class whose membership in the Plaintiff Class has been verified pursuant to the terms of this Settlement Plan, in accordance with the provisions of this Settlement Plan.
4.2 The Settlement Administrator will pay the Cash Fund to verified members of the Plaintiff Class in a manner set forth below and designed to meet the immediate cash needs of the individual, to respect his or her dignity, and to provide for his or her needs for cash in a safe and responsible manner. While the Settlement Administrator shall have authority to vary from the terms set forth below, in general the cash payments shall be made as follows:
4.2.1 Members of the Plaintiff Class will be encouraged to and assisted in the establishment of bank accounts to which cash can be transferred by the Settlement Administrator, so that Class members can obtain the cash as they determine. If a bank account is established, the Settlement Administrator shall be authorized to transfer a Class member’s entire allocation of the Cash Fund to his or her bank account.
4.2.2 Members of the Plaintiff Class who do not have bank accounts shall be paid their allocation of the Cash Fund in a check or currency, over time. Such payments shall generally be limited to $100 per week but may be larger in the discretion of the Settlement Administrator.
4

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4.2.3 Any Member of the Plaintiff Class may elect to place all or any portion of his or her allocation of the Cash Fund into the Living Allowance Fund, if he or she wishes for both sums to be distributed as set forth for the Living Allowance Fund below.
4.3 The Settlement Administrator will pay the Living Allowance to third parties on behalf of verified members of the Plaintiff Class in the manner set forth below and designed to maximize the actual benefit of the Living Allowance to each verified Class member entitled to receive a share of the Living Allowance. Any of the following may be paid from the Living Allowance: i. rent, including pre-paid rent; ii. move-in costs (e.g., first and last months’ rent and security deposit); iii. utilities, including pre-paid utilities; iv. transportation costs, including but not limited to payments for an automobile or recreational vehicle, and v. any other payment to a third party for necessities of life for the Class member. The Parties shall not be entitled to object to the determination of the Settlement Administrator as to the propriety or entitlement to Living Allowance payments.
4.4 The Settlement Administrator shall, subject to the limitation in paragraph 4.9 below, pay the sum of $500 from the Cash Fund to each Level 1 Class member, said sum to be paid either in two or three payments and on a date or dates (if the Level 1 payment is made in periodic payments) that balance the needs of the Level 1 Class member while keeping any cost of administration as low as reasonably possible.
4.5 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1000 from the Cash Fund to each Level 2 Class member, in such a manner as to maximize the benefit of both amounts to each such Class member.
4.6 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1,000 from the Cash Fund to and $1,500 from the Living Allowance fund each Level 3 Class member in such a manner as to maximize the benefit of both amounts to each such Class member.
4.7 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $1,500 from the Cash Fund to each Level 4 Class member and make Living Allowance Payments of $3,500 from the Living Allowance fund for each Level 4 Class member in such a manner as to maximize the benefit of both amounts to each such Class member.
4.8 The Settlement Administrator shall, subject to the limitation set forth in paragraph 4.9 below, pay the sum of $5,000 from the Cash Fund to each Level 5 Class member and make Living Allowance Payments of $9,000 from the Living Allowance fund for each Level 5 Class member in such a manner as to maximize the benefit of both amounts to each such member.
5

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4.9 To the extent that either more or fewer Class Members are certified as valid by the Settlement Administrator than anticipated or and to the extent that the Class members at each Level vary from that anticipated, the payments from the Cash Fund and the Living Allowance Fund may be varied, provided that the proportions set forth in paragraphs 4.4 through 4.8, above are, as nearly as practicable, maintained. It is the intent of this Settlement Plan that the entire Cash Fund and the entire Living Allowance Fund shall go to benefit the Plaintiff Class in the manner set forth in this Settlement Plan.
4.10 Once a Class member has been verified by the Settlement Administrator as a Class member at any given Level, he or she shall be entitled to receive both the payments from the Cash Fund and the payments from the Living Allowance Fund and shall not lose this right if temporarily unable to receive the benefit for any reason. If a person who has been certified by the Settlement Administrator as a valid Class member dies before all of his or her distributions have been made, then any undistributed amount would revert to either the Cash Fund or the Living Allowance Fund.
4.11 Three years from the final approval of the Settlement Agreement, or any time thereafter, the Settlement Administrator may distribute all remaining money in the Cash and Living Allowance Funds to Level 1, 2, 3, 4 or 5 Class members in amounts determined by the Settlement Administrator to be in keeping with the overall distribution set forth in this Settlement Plan.
4.12 To the extent that the Court approves an incentive award for the Class representative plaintiffs pursuant to the Settlement Agreement, that amount shall be paid by the Settlement Administrator from the Cash Fund in the manner set forth in paragraph 4.2 an its subparagraphs above.
SECTION 5. COSTS OF ADMINISTRATION AND REPORTING
5.1 The costs of administering both the Cash Fund and the Living Allowance Fund shall be maintained at the lowest possible level and shall not exceed 3% of the total, and shall be paid out of the two Funds in proportion to the size of the Funds, and the Settlement Administrator is authorized to make such payments on a monthly basis until both the Cash Fund and the Living Allowance Fund are fully paid out.
5.2 The Settlement Administrator shall prepare and file with the Court a written report of all payments from the Cash Fund and from the Living Allowance Fund within three months of the date the first payment is made from either Fund, and shall prepare and file with the Court and with all counsel of record such a written report each six months thereafter until both the Cash Fund and the Living Allowance Fund are fully distributed. Such reports shall set forth in summary fashion the manner of and purpose for which the Cash Fund and Living Allowance Fund were expended during the period of the report.
6

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 20 of 25 SECTION 6. RESOLUTION OF DISPUTES 6.1 The Court shall retain jurisdiction to resolve any issue that may arise that is not anticipated in connection with the administration of this Settlement Plan, including but not limited to any change contemplated by paragraph 4.9 above. Should such an issue arise, it may be resolved at an informal hearing by the Court, without the necessity of briefing but in a manner designed to facilitate practical and effective resolution of any dispute or issue. The determination of the Court resolving any issue that may arise in connection with the administration of this Settlement Agreement shall be final and binding. END OF DOCUMENT
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Exhibit B

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Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 23 of 25

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 24 of 25

Case 1:06-cv-01445-OWW-SMS Document 304-3 Filed 06/05/2008 Page 25 of 25

 
 Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 1 of 7
First Report of Settlement Administrator
Kincaid v. City of Fresno
November 21, 2008

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 2 of 7
Following the approval of the Kincaid Settlement Agreement by the Court on July 25, 2008 the Settlement Administrator began administering the settlement in accordance with the terms of both the Settlement Agreement and the Settlement Plan. Pursuant to the Plan, this report is the First Report of the Settlement Administrator. It covers the period from the inception of the administration of the settlement through October 31, 2008.
Overview of the Process As reflected in this Report, after publication of the settlement and the claim form in the manner called for by the Settlement Agreement, the Settlement Administrator ultimately received 352 claim forms by the August 22 deadline established by the court. Although the settlement allows the Settlement Administrator to make determinations based solely on the claim forms, the Settlement Administrator was additionally able to conduct personal interviews with the majority of claimants in order to obtain additional assurances that the claims were valid. The Settlement Administrator assessed the property loss, circumstances of loss, and psychological impact of the loss suffered by each claimant. Where appropriate, the Settlement Administrator took additional steps, including consulting with others knowledgeable about the homeless community in Fresno, interviews with landlords (to confirm homeless status during the class period), and the like to reach a conclusion about the validity of the claim.
The Settlement Administrator began personal interviews with claimants on Monday, July 30, 2008 and continued through Friday, September 19, 2008. The interview process involved formidable challenges, including attempts to contact 352 homeless people to schedule individual appointments with the Settlement Administrator. Nonetheless, the Settlement Administrator completed 226 personal interviews.
Outreach efforts to set up interviews included publication of the Settlement Administrator’s home phone number in the Labor Community Alliance in an article that encouraged claimants to check on the status of their claims, posting of notices about interviews that included the contact phone number at Poverello, Holy Cross Women’s Center, and Catholic Charities (the Rescue Mission chose not to allow the notice to be posted), 24/7 information regarding the status of the claims process and voicemail at the contact number, and individual attempts to contact claimants using information provided on the claim forms.
A total of 84 claim forms were received between July 25 and August 22. Interviews were scheduled through September 19 so that all claimants would have an opportunity to participate in the interview process.
Phone interviews were made available for out-of-area, out-of-state, out-of-country, disabled, and hospitalized claimants. There was correspondence with claimants in jail and various prisons. All other interviews were face-to-face. Catholic Charities was able to make free office space
1

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 3 of 7
available through August 21. Interviews from the end of August through September 19 were conducted at a semi-secluded table at Courthouse Square.
Final Assignment of Claimants to Levels 1-5 or Disqualification Between September 20 and September 25 the Settlement Administrator completed the final tasks of claim validation and reviewed the reasons for disqualification of six claims with counsel. Of the 352 claims received by the deadline, 2 claimants opted out of the process and 6 were disqualified, leaving 344 claimants.
The Settlement Administrator then made the final determination on the Level of each claim. As set forth in the settlement, there were 5 Levels to which claimants could be assigned, depending upon the severity of their loss, with claimants in Level 5 being those who had suffered the greatest loss. The Settlement Administrator determined that these claims should be assigned to Levels 1-5 as follows:
• Level 1: 198 • Level 2: 52 • Level 3: 48 • Level 4: 24 • Level 5: 22
Calculation of Settlement Payments The calculation of settlement payments was completed on September 26 in accordance with paragraph 4.9 of the Settlement Plan which provides that the anticipated payments can be varied “provided that the proportions set forth in paragraphs 4.4 through 4.8 above are, as nearly as practicable maintained.”
After consultation with counsel and careful consideration, the Settlement Administrator concluded that confirmed successors of certain decedents as defined in Section 13006 of the California Probate Code were entitled to Cash Allowance payments from the Kincaid v. City of Fresno, et al., Class Settlement Cash Fund. However, because the Kincaid v. City of Fresno, et al., Class Settlement Living Allowance Fund is specifically designated to help particular class members move from the street to housing, the Settlement Administrator determined that Living Allowance Funds should be directed to this purpose (and not paid to successors). This more closely implemented the overall purpose of the Settlement Agreement. Claims were filed by relatives of three Level 5 class members and one Level 4 class member.
One issue that has arisen relates to distribution of settlement funds to successors. In reviewing the Settlement Plan, there is a provision indicating generally that, in the event a claimant dies, undistributed funds would revert to the settlement funds. The Settlement Plan also provides that
2

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 4 of 7
the Settlement Administrator may vary from the plan so long as its overall purpose is served. In reviewing and administering the Cash Fund, the Settlement Administrator has made distributions of $3,772.23 plus two $1,000 incentive payments to two successors of valid claimants, and has determined that additional cash payments totaling $15,866.66 will be made to one of these successors and two additional successors of valid claimants. These payments are from the Cash Fund only. No payments to successors have been or will be made out of the Living Allowance Fund. No further payments to successors from the Cash Fund are contemplated. The limited payments to successors from the Cash Fund have been in particularly compelling circumstances that, in the opinion of the Settlement Administrator, justified these payments. The Settlement Administrator believes these payments are proper, but will be pleased to address this matter in greater detail at an informal hearing before the Court pursuant to the provisions of paragraph 6.10 of the Settlement Plan, if such a hearing is requested.
Kincaid v. City of Fresno, et al., Class Settlement Cash Fund After receipt of the claim forms and completion of the evaluation process described in this Report, the Settlement Administrator made final calculations for payment of the Cash Fund. The final calculations resulted in an upward adjustment of actual cash payments under the Cash Fund by a factor of 1.3797101 resulting in the following levels of compensation from that fund:
Level 1: $689.85 Level 2: $1,379.71 Level 3: $1,379.71 Level 4: $2,069.56 Level 5: $6,898.55
These cash payments will be made to 344 people until the entire Cash Fund, less any costs of administration, is paid out. The current status of the actual cash payments made (and remaining to be made) out of the Cash Fund is set forth in Exhibit A to this Report.
Kincaid v. City of Fresno, et al., Class Settlement Living Allowance Fund After receipt of the claim forms and completion of the evaluation process described in this Report, the Settlement Administrator made final calculations for payment of the Living Allowance Fund. The final calculations resulted in an upward adjustment of payments made pursuant to the Living Allowance Fund a factor of 2.9301177 resulting in the following levels of compensation from that fund:
Level 3: $4,395.17 Level 4: $10,255.41 Level 5: $26,371.05
At this rate of compensation, $950,000.00 of the Kincaid v. City of Fresno, et al., Class Settlement Living Allowance Fund would be paid directly to class members. Any remaining
3

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 5 of 7
funds in the Living Allowance Fund, together with any interest received and less any actual administrative cost, will be paid for the benefit of valid claimants who were determined to be eligible for Living Allowance payments as part of the final payment of the Living Allowance Fund. All of these Living Allowance payments have been made by check. Each has been made payable to various landlords and vendors to provide for rent, deposits, transportation and other essentials of life to maximize the actual benefit of these payments for homeless class members who qualified for Living Allowance payments.
Administrative Costs Although the settlement provides that administrative costs may be up to 3% of the total in the Cash Fund and Living Allowance Fund, the Settlement Administrator has donated 100% of her time and has obtained volunteer time from numerous others to keep the costs of administering the settlement at the lowest level possible. She has arranged for cost-free office space and has used her own home and resources for record-keeping where possible and has absorbed some of the costs of administration herself. As a result of these efforts, as of October 31, debited administrative expenses amounted to $1,449.76 or 0.281% (less than 3/10 of 1%) of disbursements to class members through the same period.
In spite of this, the Settlement Administrator has realized that it may become necessary to incur administrative expenses in the future as the administration of the settlement continues. Although she has been able to secure volunteer help for the considerable effort involved in implementing this settlement up to this point, that may not always be possible. To make provisions for this potential need, the Settlement Administrator created the Kincaid v. City of Fresno, et al., Class Settlement Administrative Expense Fund with $45,000.00 from the Living Allowance Account. The Settlement Administrator plans to continue her efforts to keep administrative costs as low as possible, and any unused balance in the Administrative Expense Fund, as well as any remaining interest from the Living Allowance Fund at account close-out would be paid out to class members in Levels 3-5 in the same proportion as provided for in the Settlement Plan.
The details of the actual payments made from the Kincaid v. City of Fresno, et al., Class Settlement Living Allowance Fund, as well as the amount remaining to be paid, are set forth in Exhibit B. In addition, a reporting of the status of the Kincaid v. City of Fresno, et al., Class Settlement Administrative Expense Fund can be found in Exhibit C.
Disbursement of Settlement Funds The disbursement of benefits to class members began on October 2, 2008 (other than the Incentive Payments to Class Representatives Pursuant to Court Order that were paid on August 21).
The practical considerations of serving hundreds of class members anxious to collect cash benefits or to draw on living allowance at the same time, was carefully considered by the
4

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 6 of 7
Settlement Administrator in consultation with office personnel at the donated office space. A security guard was hired to handle class member sign-in, the flow of class members from the waiting room (Floor 7) to Settlement Administrator (Floor 6), and to advise class members on waiting time. The security guard also intervened when tempers flared in the waiting room and in one case when a mentally ill class member’s behavior was threatening toward the Settlement Administrator.
To reduce the waiting time associated with the first rush of class members, class members were assigned by the first letter of their last name to one of the first four days of check-writing. The remaining check writing days in October were open to all class members. A total of $240,270.40 from the Cash Fund and $263,727.01 from the Living Allowance Fund was paid out in October.
Because 186 cash claims were paid-out in October, the demand for checks although still heavy has diminished. It has been possible to switch to payments by scheduled appointments in November. By December it is anticipated that a security guard will no longer be needed except in the case of appointments with the mentally ill claimant who is still capable of violence toward the Settlement Administrator.
The Settlement Administrator is looking for new office space for December; the building manager will not allow the Settlement Administrator to stay in the current location after November 21.
Settlement Administrator Assists in Establishment of Bank Accounts and Housing The Settlement Administrator worked with a banker at United Security Bank (the bank that has the Kincaid accounts) to help class members set up checking or savings accounts. The Settlement Administrator also worked closely with Level 3, 4, and 5 class members to help them plan for and secure housing and other items largely comprising household goods, clothing, and transportation. She worked with landlords when necessary to have credit checks waived because of pre-payment of rent. Of the 48 Level 3-5 class members assisted in October, 37 of them received housing assistance. Others already had housing and needed help with other bills, for example, PG& E. A few chose to obtain transportation before looking for an apartment. All 48 currently have housing. The Settlement Administrator also worked out arrangements with retail sales organizations regarding the acceptance of Kincaid checks.
Accounting and Record-keeping An accountant who specializes in trust accounting assisted in the development of accounting schedules, a file system for accounting records, and security protocols in the delivery of checks. The Settlement Administrator used the assistance of her husband, Bryan Apper, in setting up the accounting schedules, which is gratefully acknowledged. Bryan Apper’s time and assistance has also been provided free of any charge. Using this important assistance, an accounting schedule is maintained for each Level and Fund type (5 cash schedules and 3 living allowance schedules),
5

Case 1:06-cv-01445-OWW-SMS Document 330 Filed 11/21/2008 Page 7 of 7
for each account’s interest and fees, and for administrative expenses. These schedules are summarized in Exhibits A, B, and C. In addition, a photo copy of each check and class member’s ID is date-stamped and signed as received by each class member. Back-up documentation, e.g., rental agreements or invoices, are attached to these receipts in the case of expenditures from the Living Allowance Fund. In this way, the Settlement Administrator ensures that money is going to identified class members only and for purposes covered by the Settlement Plan. Individual accounting records are maintained for each class member for each Fund type. In this way the Settlement Administrator has a running balance of how much money each class member has remaining in his or her account. Goals of Settlement Plan Achieved Finally, the Settlement Administrator wishes to note the tremendous effect that the settlement has had on many class members' lives. Many are now in housing for the first time in many years; others have reunited with their families; still others have found employment or purchased work tools. Many have expressed gratitude at the chance for a fresh start in life.
Dated this 21st day of November, 2008. /s/ Liza Apper Liza Apper Settlement Administrator
6

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

9 PAMELA KINCAID, DOUG DEATHERAGE, )

CHARLENE CLAY, CYNTHIA GREENE, )

10 JOANNA GARCIA, AND RANDY

)

JOHNSON, INDIVIDUALLY ON BEHALF )

11 OF THEMSELVES AND ALL OTHERS

)

SIMILARLY SITUATED,

)

12

)

Plaintiffs,

)

13

)

v.

)

14

)

CITY OF FRESNO, CALIFORNIA

)

15 DEPARTMENT OF TRANSPORTATION, )

ALAN AUTRY, JERRY DYER, GREG

)

16 GARNER, REYNAUD WALLACE, JOHN )

ROGERS, PHILLIP WEATHERS AND

)

17 WILL KEMPTON, INDIVIDUALLY AND )

IN THEIR OFFICIAL CAPACITIES; )

18 DOES 1-100, INCLUSIVE,

)

)

19

Defendants.

)

)

20

)

1:06-cv-1445 OWW
STATEMENT OF DECISION AND FINDINGS RE: PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER

21

22

Plaintiffs’ application for Temporary Restraining Order came

23 on for hearing on shortened time on October 19, 2006, in

24 Courtroom 3 of the above-captioned Court, the Honorable Oliver W.

25 Wanger presiding. Plaintiffs were represented by Heller Ehrman

26 LLP by Paul Alexander, Esq.; Lawyers’ Committee for Civil Rights

27 by Oren Sellstrom, Esq.; and ACLU Foundation of Northern

28 California by Michael T. Risher, Esq.

1

1

Defendant City of Fresno was represented by Betts & Wright

2 by James B. Betts, Esq., and James C. Sanchez, Esq., City

3 Attorney for the City of Fresno. The matter was submitted on

4 Plaintiffs’ Motion, supporting and opposing Points and

5 Authorities, accompanying Declarations under Penalty of Perjury

6 for both sides as well as the oral arguments of counsel. After

7 considering all submissions in support of and opposition to the

8 motion and the arguments of counsel, the Court enters the

9 following Statement of Decision.

10

11

BACKGROUND

12

Between 4,400 to 8,800 of the City of Fresno’s approximately

13 440,000 residents are homeless. Plaintiffs’ exhibit A, pp. 10-

14 11. Services for low income people in need of shelter are

15 extremely scarce. “[O]nly 1.4% of the homeless population [is]

16 sheltered . . . leaving more than 98% of the homeless population

17 unsheltered and receiving no services. Id. at 13. Individuals

18 without residences have set up temporary shelters in the

19 southwestern area of the City of Fresno on property they do not

20 own and do not maintain. The City asserts such temporary

21 shelters and congregations of individuals create a risk to the

22 public health and safety and generate significant complaints from

23 surrounding residents, business and property owners.

24

The City of Fresno’s response to the numerous complaints has

25 been to provide “advance oral and sometimes written notice,”

26 ranging from one to five days, to the homeless in the area, that

27 the residents of the temporary shelters must move, and that any

28 unclaimed property will be discarded. The exact timing, form,

2

1 and adequacy of the notice given is a materially contested fact,

2 particularly as to personal property of the homeless persons that

3 will be discarded or destroyed.

4

When the City removes a temporary settlement, a bulldozer,

5 City garbage truck, or other heavy equipment are employed to pick

6 up most of the Plaintiffs’ possessions and dump them in a garbage

7 truck where the property is immediately crushed by compaction.

8

There have been approximately six of these sweeps in which

9 residents of temporary shelters were required to move with their

10 property and all their property that has not been carried away by

11 the individual owners, is loaded into garbage trucks and

12 destroyed on the spot.

13

Further dispute exists to when and to what extent Plaintiffs

14 are permitted to retrieve their possessions or save them from

15 destruction before and during the sweeps. Plaintiffs claim that

16 efforts to save their possessions have resulted in arrest

17 threats. The Fresno Police who execute the sweeps have announced

18 to individuals present that once the heavy equipment and garbage

19 trucks arrive, no one, including the owners, may interfere with

20 the seizure and destruction of the property due to safety

21 concerns.

22

The following events form the basis for the complaint:

23

1. May 3, 2006. Defendants confiscated and destroyed the

24 property of homeless persons living on the west side of “E”

25 Street, Broadway Street, and H Street, Van Ness Street and Los

26 Angeles Street, and Santa Fe Street and Ventura Street in Fresno,

27 California.

28

2. May 25, 2006. Defendants confiscated and destroyed the

3

1 property of homeless persons living on the west side at “E”

2 Street in Fresno, California.

3

3. June 22, 2006. Defendants confiscated and destroyed

4 the possessions of the homeless on both sides of “E” Street and

5 Santa Clara Street in Fresno, California.

6

4. July 1, 2006. Defendants confiscated and destroyed the

7 property of homeless persons living on the west side of “E”

8 Street in Fresno, California.

9

5. August 26, 2006. Defendants confiscated and destroyed

10 the property of homeless persons living on both sides of “E”

11 Street in Fresno, California.

12

6. October 8, 2006. Fresno Police Officers came to an

13 area near “H” and San Benito Streets where several homeless

14 people were found. Some of these homeless people had shopping

15 carts that they claimed were their own property they used to move

16 personal property. Police dumped the possessions onto the

17 ground, confiscated all the shopping carts and removed them.

18

7. October 11, 2006. Fresno Police Officers confronted a

19 group of homeless people in the area of “H” and San Benito

20 Streets, ordered them to stand in lines for a period of time, and

21 gave the people a “formal warning” that the police intended to

22 return “very soon” (the police did not say when) to destroy

23 everything homeless people owned in the area.

24

The evidentiary submissions establish:

25

1. Defendants have conducted sweeps under color of law to

26 remove the temporary settlements and homeless persons from areas

27 in the southwestern area of the City of Fresno.

28

2. During the sweeps, Defendants confiscate and destroy

4

1 all personal property of the Plaintiffs and others as it is

2 found.

3

3. As a result of such destruction of property, Plaintiffs

4 and others have lost possessions that they own, including any

5 shelter, clothing, medication, identification documents and

6 important papers, radios, and other items of irreplaceable

7 personal value such as photographs of loved ones, a lock of

8 child’s hair, and an urn containing the ashes of a close family

9 member.

10

4. The Notice and procedures utilized by the City of

11 Fresno and its Police Department have been inadequate to permit

12 Plaintiffs and others to recover and preserve their personal

13 property. No post-deprivation procedure was available to recover

14 such property.

15

5. Defendants have no apparent plan and make no effort to

16 retain or preserve any of the homeless persons’ property found

17 during sweeps, which is immediately confiscated and destroyed.

18

6. During the sweeps and seizure and destruction of

19 personal property, Plaintiffs and others are not permitted to

20 retrieve personal possessions, once the heavy equipment has

21 arrived due to alleged safety concerns.

22

7. Plaintiffs are not cited for violation of any ordinance

23 or law of the City of Fresno or State of California in connection

24 with their presence or the destruction of their personal

25 property.

26

8. The sweeps are intended to “clean up” the area by

27 removing homeless persons and their personal property, in part to

28 respond to citizen and business complaints and to address reports

5

1 of and observed criminal activity.

2

3

II. PLAINTIFFS’ CLAIMS

4

Plaintiffs claims include: violation of their rights under

5 the United States Constitution Fourth Amendment to be free from

6 unreasonable seizures and searches; the Fifth and Fourteenth

7 Amendments for deprivation and destruction of personal property

8 without due process of law without meaningful notice and the

9 opportunity to be heard at a meaningful time in a meaningful

10 manner; violation of the California Constitution Art. I, §§ 7 and

11 13, prohibiting unlawful searches and seizures of property and

12 deprivation and destruction without due processes of law;

13 violation of California Civil Code § 2080 et seq., protecting the

14 rights of owners of “found” property; and violation of California

15 Civil Code § 52.1 et seq., for alleged interference with rights

16 secured by the Constitution or laws of the United States or

17 rights secured by the Constitution and laws of the State of

18 California from infringement by threats, intimidation, or

19 coercion.

20

21

III. DEFENDANTS’ DEFENSES

22

The Defendants assert that they do not have any policy or

23 practice in place or that has been implemented to seek out or

24 eliminate shelters of homeless individuals and cannot be liable

25 under Monell for abridgement of federal civil rights under color

26 of state law. When temporary shelters and homeless persons

27 trespass on the private property of others or provide the situs

28 for criminal activity, or lead to complaints from local

6

1 residents, citizens, business and property owners, the Fresno

2 Police Department responds to such calls for service.

3

The temporary shelters are sites of substance abuse,

4 prostitution, assault, and child endangerment. Public

5 accommodations for sewage and refuse at the sites are nonexistent

6 and the temporary shelter areas present a threat to public health

7 and safety.

8

The City alleges that it does not conduct unannounced sweeps

9 or raids of such sites. Rather, each and every enforcement

10 action is preceded by the organized distribution of oral and

11 written notice to the inhabitants of temporary shelters that a

12 clean-up of the area will be conducted and that all trash,

13 including unattended property found without the owner to claim

14 it, will be removed. These notices are given at least 24 hours

15 in advance and are both oral and written. Frequently, notices

16 are given three to five days in advance of the need to relocate

17 and move personal property.

18

The City claims it only refuses to honor requests to remove

19 personal effects from temporary shelter areas once heavy

20 equipment, which poses an unreasonable risk of harm, has moved

21 into a sweep area.

22

As to shopping carts which accumulate around the homeless

23 shelter areas, the City has adopted a shopping cart ordinance,

24 under which it collects branded shopping carts and turns them

25 over to a private contractor for return to private business or

26 sale. Plaintiffs maintain they and others at the site own

27 unbranded shopping carts.

28

Defendants object that the City has not been properly

7

1 served, however, Court-required notice of the hearing on

2 application for temporary restraining order was provided to

3 counsel for the City, in accordance with the Court’s directions

4 and the City filed a substantial opposition, including a

5 Memorandum of Points and Authorities, numerous opposing

6 Declarations, and presented vigorous and informed oral argument

7 in opposition to the request for Temporary Injunctive Relief.

8

9

IV. THE LAW

10

Injunctive relief is an equitable remedy that considers the

11 likelihood of success on the merits and the nature of harm caused

12 by challenged conduct. Clear Channel Outdoor, Inc. v. City of

13 Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). Under the

14 traditional test, a plaintiff must show the following for

15 injunctive relief:

16

1. A strong likelihood of success on the merits;

17

2. The possibility of irreparable harm to the Plaintiff if

18 injunctive relief is not granted;

19

3. A balance of hardships favoring the public; and

20

4. Advancement of the public interest in certain cases.

21 Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.

22 2005). In the alternative, a court may grant injunctive relief

23 if Plaintiff “demonstrates either a combination of probable

24 success on the merits and the possibility of irreparable injury

25 or that serious questions are raised and the balance of hardships

26 tips sharply in his favor.” 408 F.3d 1120. The standard for

27 granting a temporary restraining order is the same as for

28 granting a preliminary injunction. Stuhlbarg Int’l Sales Co. v.

8

1 John D. Brush & Co., 240 F.3d 382, 389, n.7 (9th Cir. 2001).

2

A mandatory injunction, one that compels action, (rather

3 than a prohibitory injunction, which forbids action) goes beyond

4 simply maintaining the status quo and is disfavored. LGS

5 Architects, Inc. v. Condordia Homes, 434 F.3d 1150, 1158 (9th

6 Cir. 2006). The purpose of a temporary restraining order is to

7 maintain the relative positions of the parties until a trial on

8 the merits is held.

9

Due to the threat on October 10, 2006, of a new sweep, the

10 need for relief is urgent and immediate. Here, the Court will

11 not grant mandatory injunctive relief. It is the City, not the

12 Court, that must establish policy, allocate resources, enforce

13 the law and determine how to address the problem of its homeless

14 population. The Court has no legislative function and is only

15 authorized to protect the legal rights of the parties, not to

16 enforce or execute the laws, which must be left to the City and

17 its Police Department. Equity also abhors the Court’s need for

18 supervision of an injunction, a further reason for injunctive

19 relief to be specific, prohibitory, and self-executing.

20

21 A. PROBABILITY OF SUCCESS ON THE MERITS

22

The Fourth Amendment to the United States Constitution

23 protects against unreasonable seizures and searches. Menotti v.

24 City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). A seizure

25 occurs when there is some meaningful interference with an

26 individual’s possessory interests in property. Soldal v. Cook

27 County, Ill., 506 U.S. 56, 63 (1992). A seizure becomes unlawful

28 when it is “more intrusive than necessary.” San Jose Charter of

9

1 the Hell’s Angels Motorcycle Club v. City of San Jose, 402 F.3d

2 962, 975 (9th Cir. 2005). An officer who comes across an

3 individual’s property in a public area may seize it only if

4 Fourth Amendment standards are satisfied - for example, if the

5 items are evidence of a crime or contraband. Soldal, 506 U.S. at

6 68; San Jose Chapter of the Hell’s Angels, 402 F.3d at 975

7 (“[t]he destruction of property by State officials poses as much

8 of a threat, if not more, to people’s right to be ‘secure . . .

9 in their effects’ as does the physical taking of them.”).

10

11 B. SEIZURE OF THE PROPERTY OF THE HOMELESS

12

Pottinger v. City of Miami, 810 F.Supp. 1551, 1556 (S.D.

13 Fla. 1992) cited with approval in U.S. v. Gooch, 6 F.3d 673, 677

14 (9th Cir. 1993), found Fourth Amendment and Due Process

15 violations where City of Miami employees routinely seized and

16 destroyed the possessions of the homeless in addressing its

17 “homeless problem,” where such property included personal

18 identification, medicine, clothing, and a Bible, by use of front-

19 end loaders and dump trucks to destroy the property of the

20 homeless, and threatened with arrest those who attempted to

21 retrieve belongings. Although the City has an interest in

22 keeping areas sanitary, orderly, and law-abiding, such interests

23 did not outweigh or justify violations of fundamental

24 constitutional rights under the Fourth, Fifth and Fourteenth

25 Amendments to the United States Constitution. The Court observed

26 that the value of personal property of the homeless “is in the

27 eye of the beholder, as one man’s junk is another man’s

28 treasure.” Id. at 1556. Injunctive relief was issued against

10

1 the City of Miami.

2

In Justin v. City of Los Angeles, CV012352 LGB AIJX, 2000 WL

3 1808426 (C.D. Cal. Dec. 5, 2000), the Plaintiffs who were

4 homeless individuals, charged the Los Angeles Police Department

5 and other City officials with unlawful searches and seizures,

6 including the destruction of the homeless persons’ personal

7 property. In rejecting the City’s argument that it had the right

8 to keep its streets safe and clean, the Justin court held:

9

Here, Defendants may be slowed in their efforts to keep

the City, and especially the downtown area, clean and

10

safe. This injunction may disturb their new initiative

to revitalize and uplift communities, to improve the

11

streets and sidewalks, and to diminish the crime rate.

Plaintiffs, however, risk a greater harm if the

12

injunction is not granted. The violation of their

First, Fourth, and Fourteenth Amendment rights. Id. at

13

*11.

14

In this case, the balance of hardships of the Plaintiffs’

15 interest in protecting against immediate, irrevocable destruction

16 of their personal property, some of which is so unique and of

17 such sentimental value as not to be replaceable by money, against

18 the City’s need to destroy that property as part of its law

19 enforcement efforts, weighs heavily in favor of Plaintiffs. The

20 City can enforce the laws, remove the homeless from private

21 property or other areas where they unlawfully congregate, and

22 otherwise enforce public health and safety laws, including

23 criminal laws necessary to protect the public, if there is

24 probable cause to believe such laws are violated. The immediate

25 and permanent destruction of personal property without a method

26 to reclaim or to assert the owner’s right, title and interest to

27 recover such personal property, in a pre- or post-seizure

28 hearing, without any showing that there is no feasible

11

1 alternative; and without probable cause for seizure and immediate

2 destruction of such property, violates the Fourth, Fifth and

3 Fourteenth Amendments to the United States Constitution in Art.

4 I, §§ 13 and 7(A) of the California Constitution.

5

The public interest is served in the interim by issuance of

6 injunctive relief to maintain the status quo, by requiring the

7 City to take custody of and maintain homeless persons’ property

8 it seizes, pending a full evidentiary hearing in this matter. If

9 the City needs to conduct sweeps or take other law enforcement

10 action against homeless individuals in the interim period, the

11 City will suffer negligible hardship in having to store property

12 seized, as opposed to the irrevocable destruction of the

13 Constitutional rights and property of affected homeless

14 individuals.

15

Absent further evidentiary showing, the City has not

16 established that its seizures and destruction of the property

17 here complained of are lawful and not more intrusive than

18 necessary. San Jose Chapter of the Hell’s Angels Motorcycle

19 Club, 402 F.3d at 975. Temporary injunctive relief will in no

20 way hinder the City’s necessary law enforcement efforts in

21 addressing any violations of City ordinances, local, or State law

22 by the homeless. Even actual violations of ordinances, local, or

23 State laws, do not per se, justify the immediate wholesale

24 destruction of Plaintiffs’ personal property, which is not

25 contraband.

26

27 C. DUE PROCESS VIOLATIONS

28

Before the government seizes an individuals’ property, even

12

1 temporarily, it must provide notice and an opportunity to be

2 heard prior to the seizure, except in “extraordinary situations

3 where some valid governmental interest is at stake, that

4 justifies the postponing of the hearing until after the event.”

5 United States v. James Daniel Good Real Prop., 510 U.S. 43, 53

6 (1993). Pre-seizure notice is not dependent upon the value of

7 the property. Fuentes v. Shevin, 407 U.S. 67, 84-87 (1972);

8 Property v. District of Columbia, 948 F.2d 1327, 1334 (D.C. Cir.

9 1991) (government must provide adequate notice to owners of

10 parked cars before it tows them as “junk.”).

11

The notice must be meaningful. Where personal property

12 destroyed includes the necessities of life, identification

13 documents, shelter, medicine and clothing, and personal effects

14 of unique and sentimental value, a means to provide an

15 opportunity to be heard either before or after the seizure of the

16 property is an irreduceable right that is being violated. Logan

17 v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982); see also, Wong

18 v. City & County of Honolulu, 333 F.Supp.2d 942, 945 (D. Hawaii

19 2004); Schneider v. County of San Diego, 28 F.3d 89, 93 (9th Cir.

20 1994) (notice insufficient).

21

22

V. CONCLUSION

23

The peremptory destruction of all personal property of

24 homeless persons during law enforcement sweeps to remove homeless

25 persons’ temporary shelters and homeless persons from areas in

26 the southwest City of Fresno in the manner proved, violates the

27 Fourth, Fifth and Fourteenth Amendments of the United States

28 Constitution, California Constitution, Article 1, Section 13

13

1 (unlawful searches and seizures), and California Constitution,

2 Article 1, Section 7(A) (due process).

3

4 A. RELIEF

5

Pending development of a full evidentiary record at a

6 hearing on motion for preliminary injunction, the City of Fresno,

7 and its Police Department, and all those acting for, under and/or

8 in concert with them or who have actual notice of this order, are

9 temporarily restrained and enjoined from immediately destroying

10 the property of homeless persons during protective sweeps,

11 activities to remove homeless persons from temporary shelter

12 sites, or other activities to seize the personal property of

13 homeless persons, without providing constitutionally adequate

14 notice and meaningful opportunity to be heard concerning the

15 seizure and destruction of such personal property.

16

17 B. DURATION OF ORDER

18

This Order shall remain in effect through November 7, 2006,

19 for good cause due to unavailability of counsel and need to

20 prepare for a hearing on November 7, 2006, or further order of

21 this Court. The Defendant City may, on two days notice, move for

22 the dissolution or modification of this Temporary Restraining

23 Order.

24

25 C. BOND

26

Because the Plaintiffs are indigent, their attorneys are

27 acting pro bono, and they are without financial or other

28 resources which would permit them to post a bond, the requirement

14

1 of a monetary undertaking is waived. Jorgensen v. Cassiday, 320

2 F.3d 906, 919 (9th Cir. 2003). There appears to be no realistic

3 likelihood of compensable harm to Defendants during the term of

4 this temporary restraining order.

5

6 D. HEARING ON PRELIMINARY INJUNCTION

7

A hearing on Plaintiffs’ Application for a Preliminary

8 Injunction shall be held on November 7, 2006, at 9:00 a.m. in

9 Courtroom 3 of the above-captioned court.

10

11 Dated: October 23, 2006 at 4:33 p.m.

12

13

/s/ OLIVER W. WANGER

14

United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

 
 1

2

3 UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF CALIFORNIA
5

6

7 PAMELA KINCAID, et al.,

8

Plaintiffs,

9

v.

10 CITY OF FRESNO, et al.,

11

Defendants.

1:06-CV-1445 OWW SMS
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT KEMPTON’S MOTION TO DISMISS, MOTION FOR A MORE DEFINITE STATEMENT, AND MOTION TO STRIKE

12

13

1. INTRODUCTION

14

This matter comes before the court on Defendant Will

15 Kempton’s (“Kempton”) motion to dismiss Plaintiffs’ claims

16 against him under 42 U.S.C. § 1983. Plaintiffs’ claims are

17 brought against Kempton in his official capacity as the Director

18 of the California Department of Transportation (“Caltrans”).

19 Plaintiffs allege that Kempton, along with other named

20 defendants, engaged in a pattern and practice of constitutional

21 violations against Plaintiffs while conducting clean up efforts

22 throughout the City of Fresno. Plaintiffs oppose Defendant

23 Kempton’s motion to dismiss.

24

2. PROCEDURAL BACKGROUND

25

Plaintiffs filed their initial complaint on October 17,

26 2006. (Doc. 1, Complaint.) Plaintiffs filed their Second

27 Amended Complaint (“SAC”) on March 1, 2007. (Doc. 113, SAC.)

28 1

1 Defendant Kempton filed a motion to dismiss the claims against

2 him on January 12, 2007. (Doc. 96, Defendant’s Motion to

3 Dismiss.) Plaintiffs filed their opposition on February 23,

4 2007. (Doc. 110, Opposition to Defendant’s Motion to Dismiss.)

5 Defendant Kempton filed his reply on March 2, 2007. (Doc. 115,

6 Reply to Plaintiffs’ Opposition.)

7

3. FACTUAL BACKGROUND

8

This case concerns a number of clean up operations conducted

9 by Defendants. For more than a year, Defendants implemented a

10 policy of taking and destroying personal property of homeless

11 individuals in an effort to clean up the City of Fresno. (Doc.

12 113,SAC, ¶ 38.) A number of these clean up efforts occurred on

13 property belonging to Caltrans, including the raids on May 3,

14 2006, May 25, 3006, June 22, 2006, and August 26, 2006.

15

Defendant Kempton is the Director of Caltrans. (Doc. 113,

16 SAC, ¶ 25.) Kempton is responsible for the enforcement,

17 operation, and execution of all duties vested by law in Caltrans.

18 (Id.) Plaintiffs sue Kempton only in his official capacity and

19 only for violation of federal law. (Id.)

20

Plaintiffs allege that Kempton’s acts in his official

21 capacity with Caltrans were executed under a custom, policy, and

22 practice by the agency against Plaintiffs in violation of their

23 Constitutional rights. (Id., ¶ 30.) Plaintiffs allege that

24 Kempton in his official capacity acted jointly or conspired with

25 other defendants to authorize, acquiesce or set in motion

26 policies and plans that led to unlawful conduct against

27 Plaintiffs. (Id.) Plaintiffs further allege that Caltrans

28 2

1 officials and employees had prior knowledge of raids on Caltrans

2 property from the City. (Id., ¶ 46.) According to Plaintiffs’

3 complaint, Defendant Capt. Garner notified Caltrans that any

4 items belonging to the homeless found on Caltrans property will

5 be taken as “trash” and disposed of. (Id.) The City’s clean up

6 operations resulted in the systematic and immediate destruction

7 of Plaintiffs’ personal property. On August 25, 2006, Caltrans

8 issued an encroachment permit which authorized the City to

9 conduct a cleanup operation and to construct a fence at the

10 location where homeless individuals were staying. (Id.) This

11 clean up operation resulted in the immediate destruction of

12 property belonging to homeless individuals. (Id. at 47.)

13

4. MOTION TO DISMISS

14

Fed. R. Civ. P. 12(b)(6) provides that a motion to dismiss

15 may be made if the plaintiff fails “to state a claim upon which

16 relief can be granted.” However, motions to dismiss under Fed.

17 R. Civ. P. 12(b)(6) are disfavored and rarely granted. The

18 question before the court is not whether the plaintiff will

19 ultimately prevail; rather, it is whether the plaintiff could

20 prove any set of facts in support of his claim that would entitle

21 him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73

22 (1984). “A complaint should not be dismissed unless it appears

23 beyond doubt that plaintiff can prove no set of facts in support

24 of his claim which would entitle him to relief.” Van Buskirk v.

25 CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (citations omitted).

26

In deciding whether to grant a motion to dismiss, the court

27 “accept[s] all factual allegations of the complaint as true and

28 3

1 draw[s] all reasonable inferences” in the light most favorable to

2 the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th

3 Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983

4 (9th Cir. 2002). A court is not “required to accept as true

5 allegations that are merely conclusory, unwarranted deductions of

6 fact, or unreasonable inferences.” Sprewell v. Golden State

7 Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

8

A. Discussion

9

Defendant Kempton argues that Plaintiffs’ complaint against

10 him in his official capacity and against Caltrans should be

11 dismissed for failure to state a claim upon which relief can be

12 granted. Kempton argues that Plaintiffs have failed to allege

13 any facts against him that his conduct was improper. Plaintiffs

14 sue Defendant Kempton in his official capacity and not in his

15 personal capacity. The Supreme Court explained the distinction

16 in Kentucky v. Graham, 473 U.S. 159, 165 (1985):

17

“Personal capacity suits seek to impose personal

18

liability upon a government official for actions he

19

takes under the color of state law. Official capacity

20

suits, in contrast generally represent only another way

21

of pleading an action against an entity of which an

22

officer is an agent. As long as the government entity

23

receives notice and an opportunity to respond, an

24

official capacity suit is, in all respects other than

25

name, to be treated as a suit against the entity.”

26

Thus, Plaintiffs’ complaint need not allege facts regarding

27 Defendant Kempton’s conduct acting as an individual as Plaintiffs

28 4

1 bring the claim against Kempton only in his official capacity.

2 Plaintiffs need only allege sufficient actions by Defendant

3 Kempton in his capacity as the Director of Caltrans to state an

4 official capacity claim.

5

Kempton also argues that Plaintiffs have failed to give fair

6 notice of their claims against Kempton and have further failed to

7 assert any grounds for the alleged wrong. The United States

8 Supreme Court has rejected the application of a heightened

9 pleading standard in 42 U.S.C. § 1983 actions alleging municipal

10 liability. Empress LLC v. City & County of San Francisco, 419

11 F.3d 1052, 1055 (9th Cir. 2005); see also, Rodriguez v.

12 California Highway Patrol, 89 F. Supp. 2d 1131, 1137 (N.D. Cal.

13 2000) (The Court rejects a judicially crafted heightened pleading

14 standard for civil rights cases; instead such claims need only

15 comply with Fed. R. Civ. P. 8(a).) The Supreme Court has stated

16 that the common law developed a heightened pleading standard,

17 which requires a plaintiff’s complaint to state with factual

18 detail and particularity the basis for the claim, cannot be

19 reconciled with the Federal Rules’ liberal system of notice

20 pleading. Id. Heightened pleading standards should only be

21 applied when required by the Federal Rules. Id.

22

Plaintiffs have alleged the following in their complaint:

23

1. Kempton’s acts in his official capacity with

24

Caltrans were executed under a custom, policy, and

25

practice by the agency against Plaintiffs in

26

violation of their Fourth and Fourteenth Amendment

27

rights.

28 5

1

2. Kempton in his official capacity acted jointly or

2

conspired with other defendants to authorize,

3

acquiesce or set in motion policies and plans that

4

led to unlawful conduct against Plaintiffs.

5

3. Caltrans officials and employees, including

6

Kempton, had prior knowledge of raids on Caltrans

7

property from the City and that such raids

8

resulted in the immediate destruction of property

9

belonging to Plaintiffs.

10

4. A number of the City’s clean up efforts occurred

11

on property belonging to Caltrans, including

12

the raids on May 3, 2006, May 25, 2006, June 22,

13

2006, and August 26, 2006.

14

5. Despite knowledge of the destruction, Defendant

15

Kempton acting on behalf of Caltrans issued an

16

encroachment permit which authorized the City to

17

conduct the clean up operations and to construct a

18

fence at the location where homeless individuals

19

were residing.

20

6. Caltrans actions pursuant to this pattern and

21

practice were in violation of Plaintiffs’ Fourth

22

and Fourteenth Amendment rights.

23

Plaintiffs provide sufficient factual allegations of

24 Defendant Caltrans’ involvement in the alleged Fourth and

25 Fourteenth Amendment deprivations suffered by Plaintiffs to

26 satisfy Rule 8(a). The claims adequately state that Defendant

27 Caltrans and Kempton ratified with knowledge the collection and

28 6

destruction of Plaintiffs’ property. Plaintiffs only sue 1

Defendant Caltrans for equitable relief, seeking to enjoin future 2

unconstitutional actions by the agency and its employees. If the 3

evidence establishes that it was Caltrans’ custom or practice to 4

request, or authorize, or acquiesce in the City’s clean up 5

operation on Caltrans property, this could provide the basis for 6

equitable relief under the facts alleged in the complaint. 7

However, under Rule 8(a) and its liberal pleading standards, 8

Plaintiffs have sufficiently stated a claim for equitable relief 9

against Defendant Kempton in his official capacity for Fourth and 10

Fourteenth amendment violations. 11

Defendant Kempton’s motion to dismiss for failure to state a 12

claim under Rule 8(a) is DENIED. 13

B. Eleventh Amendment 14

The Eleventh Amendment provides: 15

The Judicial power of the United States shall not be

16

construed to extend to any such suit in law or equity,

commenced or prosecuted against one of the United

17

States by Citizens of another State, or by the Citizens

or Subjects of any Foreign State.

18

U.S. Const. amend. XI. The Eleventh Amendment bars suits against 19

a state for damages or injunctive relief, unless the state has 20

consented to or waived immunity, or Congress has validly 21

abrogated the same. Seminole Tribe of Fla. v. Florida, 517 U.S. 22

44, 54-55 (1996); In re Harleston, 331 F.3d 699, 701 (9th Cir. 23

2003). The Eleventh Amendment’s “reference to actions against 24

one of the United States encompasses not only actions in which a 25

State is actually named as the defendant, but also certain 26

actions against state agents and state instrumentalities.” 27

Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997); 28

7

see also Ulaleo v. Paty, 902 F.2d 1395, 1398 (9th Cir. 1990). 1
Caltrans is an arm of the State of California entitled to 2
immunity. See Natural Resources Defense Council v. California 3
Department of Transportation, 96 F. 3d 420, 423 (9th Cir. 1996). 4

5

“However, under Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714,

6 28 S. Ct. 441 (1908), ‘a state official in his or her official

7 capacity, when sued for injunctive relief, [is] a person under §

8 1983, because official capacity actions for prospective relief

9 are not treated as actions against the State.’” Wolfe v.

10 Strankman, 392 F.3d 358, 365 (9th Cir. 2004). “The Ex parte

11 Young doctrine is founded on the legal fiction that acting in

12 violation of the Constitution or federal law brings a state

13 officer into conflict with the superior authority of the

14 Constitution, and he is in that case stripped of his official or

15 representative character and is subjected in his person to the

16 consequences of his individual conduct.” Cardenas v. Anzai, 311

17 F.3d 929, 936 (9th Cir. 2002) In determining whether the

18 doctrine of Ex parte Young avoids the Eleventh Amendment bar to

19 suit against a state, a court need only conduct a straightforward

20 inquiry into whether the complaint alleges an ongoing violation

21 of federal law and seeks relief properly characterized as

22 prospective. Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S.

23 261, 296 (1997); see also, Acs of Fiarbanks, Inc. v. GCI Commun.

24 Corp., 321 F.3d 1215, 1216 (9th Cir. 2003). The inquiry into

25 whether suit can be maintained under Ex parte Young does not

26 include an analysis of the merits of the claim. Couer d’Alene,

27 521 U.S. at 281. An allegation of an ongoing violation of federal

28 8

law is ordinarily sufficient. Id. 1

2

Defendant Kempton argues that Plaintiffs’ suit against him

3 is barred by the jurisdictional bar of the Eleventh Amendment.

4 However, Plaintiffs have sued Defendant Kempton in his official

5 capacity for prospective injunctive and declaratory relief.

6 Plaintiffs do not seek damages. Plaintiffs’ claims against

7 Kempton fall within the Ex Parte Young exception to sovereign

8 immunity and are properly brought under § 1983. see, Wolfe, 392

9 F.3d at 365. Plaintiffs allege that they have suffered ongoing

10 constitutional violations as a result of Defendant Kempton’s

11 actions in his official capacity as the Director of Caltrans. In

12 their complaint, Plaintiffs seek to enjoin Kempton, as well as

13 the actions of other named Defendants, from allegedly seizing and

14 permanently destroying their property. These allegations are

15 sufficient to invoke the Ex parte Young exception.

16

Defendant Kempton’s motion to dismiss based on Eleventh

17 Amendment sovereign immunity is DENIED.

18

C. Unclean Hands

19 The unclean hands doctrine is based on the equitable maxim
20 that denies equitable relief to one who has engaged in bad faith
21 or inequitable behavior with respect to the subject matter of the
22 claims. EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 752 (9th
23 Cir. 1999). This maxim has not been applied where Congress
24 authorizes broad equitable relief to serve important national
25 policies. McKennon v. Nashville Banner Publ. Co., 513 U.S. 352,
26 360 (1995). “The clean hands doctrine should not be strictly
27 enforced when to do so would frustrate a substantial public
28

9

interest.” Recruit U.S.A., Inc., 939 F.2d at 753. “The maxim 1
that he who comes into equity must come with clean hands is not 2
applied by way of punishment for an unclean litigant but upon 3
considerations that make for the advancement of right and 4
justice.” Id. The unclean hands doctrine is not a doctrine that 5
is applied strictly, but rather a formula left to the discretion 6
of the court. Id. 7

8

Defendant Kempton argues that to permit the relief sought by

9 Plaintiffs would cede the state’s authority to maintain its

10 rights of way to trespassers and to safely manage state highways

11 and adjoining rights of way. According to Defendant, the state

12 must be able to maintain its property in a manner that insures

13 safety for the homeless, motorists, and its own employees.

14 However, Defendant Kempton does not argue that Plaintiffs acted

15 in bad faith or violated conscience with their conduct. see,

16 Bennett v. Lew, 151 Cal. App. 3d 1177, 1187 (Cal. Ct. App.

17 1984)(traditionally, the doctrine of unclean hands is invoked

18 when one seeking relief in equity has violated conscience, good

19 faith or other equitable principles in his prior conduct.)

20

Plaintiffs bring a § 1983 action for violation of Fourth and

21 Fourteenth Amendment rights resulting from alleged unlawful

22 destruction of their personal property. Plaintiffs have alleged

23 that Defendant Kempton in his official capacity was jointly

24 involved with other named Defendants in implementing a custom,

25 pattern, and practice of discrimination that resulted in the

26 illegal seizure and destruction of their personal property.

27 Plaintiffs allege that Caltrans allowed and authorized the clean

28 10

up efforts on its property with knowledge that these efforts 1
would result in the immediate seizure and destruction of 2
Plaintiffs’ property. Plaintiffs do not dispute that they were 3
present on Caltrans property. However, it would be inequitable 4
for Plaintiffs’ unauthorized presence on Caltrans property to 5
result in the divestiture of their right to pursue a claim for 6
alleged Constitutional violations. A determination on the merits 7
of Plaintiffs allegations serves an important policy interest. 8
To dismiss the claims against Defendant Kempton at this stage 9
based on the maxim of unclean hands would frustrate the purpose 10
of § 1983. The unclean hands defense, if applicable, is 11
inherently factual and cannot be decided on a pleading motion. 12

13

Defendant Kempton’s motion to dismiss based on unclean hands

14 is DENIED.

15

5. MOTION FOR A MORE DEFINITE STATEMENT

16 If a complaint “is so vague or ambiguous that a party cannot
17 reasonably be required to frame a responsive pleading, the party 18 may move for a more definite statement before interposing a 19 responsive pleading. The motion shall point out the defects 20 complained of and the details desired.” Fed. R. Civ. P. 12(e). 21
A Rule 12(e) motion for a more definite statement must be 22 considered in light of the liberal pleading standards set forth 23 in Fed. R. Civ. P. 8(a)(2). See, e.g., Bureerong v. Uvawas, 922 24 F. Supp 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple 25 Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994) 26 (“Motions for a more definite statement are viewed with disfavor 27 and are rarely granted because of the minimal pleading 28
11

requirements of the Federal Rules.”) The Court must deny the 1
motion if the complaint is specific enough to notify defendant of 2
the substance of the claim being asserted. See Bureerong, 922 F. 3
Supp. at 1461; see also San Bernardino Pub. Employees Ass’n v. 4
Stout, 946 F. Supp. 790, 804 (C.D. Cal. 1996) (“A motion for a 5
more definite statement is used to attack unintelligibility, not 6
mere lack of detail....”). Whether to grant a Rule 12(e) motion 7
for a more definite statement lies within the discretion of the 8
district court. See Stout, 946 F. Supp. at 804. 9

10

Defendant Kempton argues that Plaintiffs’ allegations are so

11 vague and ambiguous that he cannot reasonably be required to

12 frame a responsive pleading absent a more definite statement of

13 the allegation against him. At a minimum, Defendant argues that

14 Plaintiffs should be required to provide a more definite

15 statement of their allegations against Defendant Kempton.

16

However, Plaintiffs only sue Defendant Kempton in his

17 official, not individual, capacity. Plaintiffs have alleged that

18 Kempton’s acts in his official capacity with Caltrans were

19 executed under a custom, policy, and practice by the agency

20 against Plaintiffs. Plaintiffs have also alleged that Caltrans

21 officials and employees, including Kempton, had prior knowledge

22 of raids on Caltrans property from the City, that such raids

23 resulted in the immediate destruction of Plaintiffs’ property,

24 and that, despite this knowledge, authorized and permitted the

25 City to continue to conduct the raids and destroy Plaintiffs’

26 property. Plaintiffs’ allegations are sufficient to put

27 Defendant Kempton on notice regarding the substance of the claims

28 12

against him in his official capacity. 1

2

Defendant’s motion for a more definite statement pursuant to

3 Rule 12(e) is DENIED.

4

6. MOTION TO STRIKE

5

Fed. R. Civ. P. 12(f) provides that “redundant, immaterial,

6 impertinent, or scandalous matters” may be “stricken from any

7 pleading.” Fed. R. Civ. P. 12(f). “[O]nly pleadings are

8 subject to motions to strike.” See Sidney-Vinstein v. A.H.

9 Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, a

10 “motion to strike” materials that are not part of the pleadings

11 may be regarded as an “invitation” by the movant “to consider

12 whether [proffered material] may properly be relied upon.”

13 United States v. Crisp, 190 F.R.D. 546, 551 (E.D. Cal. 1999)
14 (quoting Monroe v. Board of Educ., 65 F.R.D. 641, 645 (D. Conn.
15 1975).
16

Motions to strike are disfavored and infrequently granted. 17

See Pease & Curran Ref., Inc. v. Spectrolab, Inc., 744 F. Supp. 18

945, 947 (C.D. Cal. 1990), abrogated on other grounds by Stanton 19

Road Ass'n v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993). 20

“[M]otions to strike should not be granted unless it is clear 21

that the matter to be stricken could have no possible bearing on 22

the subject matter of the litigation. Colaprico v. Sun 23

Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) 24

(citation omitted). 25

26

Kempton argues that he should be stricken from the

27 Plaintiffs’ second amended complaint because he is an immaterial

28 13

and impertinent party to this action and because Plaintiffs have 1
made no charging allegations against him. According to Kempton, 2
Plaintiffs admit that he had no involvement in the controversy 3
because Plaintiffs did not involve him or Caltrans in the TRO or 4
Preliminary Injunction proceedings. 5

6

Plaintiffs have sufficiently alleged facts against Kempton

7 in his official capacity, including knowledge and ratification of

8 unconstitutional seizures. The fact that Plaintiffs did not

9 involve Kempton or Caltrans in the TRO or Preliminary Injunction

10 proceedings does not constitute an admission that Kempton had no

11 involvement in the controversy. Plaintiffs have alleged that

12 Kempton’s acts in his official capacity with Caltrans were

13 executed under a custom, policy, and practice by the agency in

14 affirming violation of Plaintiffs constitutional rights.

15 Plaintiffs allegations are sufficient to put Defendant Kempton on

16 notice of the claims against him in his official capacity. It

17 cannot be said that Defendant Kempton’s actions have no possible

18 bearing on the subject matter of this litigation.

19

Defendant Kempton’s motion to strike is DENIED.

20

7. CONCLUSION

21 Defendant Kempton’s motion to dismiss for failure to state a
22 claim under Rule 8(a) is DENIED.
23

Defendant Kempton’s motion to dismiss based on Eleventh 24

Amendment sovereign immunity is DENIED. 25

26

Defendant Kempton’s motion to dismiss based on unclean hands

27 is DENIED.

28 14

Defendant’s motion for a more definite statement pursuant to 1
Rule 12(e) is DENIED. 2

3

Defendant Kempton’s motion to strike pursuant to Rule 12(f)

4 is DENIED.

5 IT IS SO ORDERED.

6 Dated:
7 dd0l0
8

March 16, 2007

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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28 15

 
 BRUCE A. BEHRENS, Chi ef Counsel
2 THOMAS C. FELLENZ, Deputy Chief Counsel RONALD W. BEALS, Assistant Chief Counsel
3 DAVID P. HARRlS, SBN 15851 1
4 NA VTEJ S. BASSI, SBN 188406 MAHHEW B . GEORGE, SBN 2 10032
5 11 20 N Street (MS 57) PO. Box 1438
6 Sacramento, Californi a 95812-1438 Telephone: (9 16) 654-2630
7 FacSimile: (916) 65 4-6 128

8 Attorn eys for Defendants Daryl Glenn and James Province In Their Official and Indi vidua l Capacities
9

10

11

UNITED STATES DISTRICT

EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 12

13 14 Pamela Kincaid, etc. et aI.,

15

Plaintiffs,

) CASE NO. 06-CV1445-0WW ) ) MOTION FOR SUMMARY

16

v.

) ADJUDICATION AS TO ALL OR ) SOME OF THE CAUSES OF ACTION,

17

) Fed. R. C iv. Proc. 56

City of Fresno et aI. , 18

) ) Date: March 3 1, 2008

19

De fendants .

) Time: 9:00 a.m.

) Judge: Hon. Oliver W. Wanger

20

) Courtroom: 3 (7th Floor)

21

)

) Trial Date: June 10,2008
22 _ _ _ __ __ _ _ __ _ __ ) Trial Judge: Hon. Oliver W. Wanger

23 1.
24 STATEMENT OF ISSUES
25 A. Does the Doctrine of Qualified Immunity Shield Defendants G lenn and Province
26 from the Federal Causes of Acti on in Whole or in Part?
27

28

Motion for Summary Adj udication (FRCP 56)

B. Does Plaintiffs' Fai lure to Comply with the Tort Clai ms Act Preclude the Recovery of

2 Money Damages on all State Causes of Action?

3

C. Are Plaintiffs ' Prayers for Relief Supported by the Governing Law or thc Undisputcd

4 fact s at the Close of Discovery?

5

D. May Defendants Glenn and Province Recover their Legal Expenses if Plaintiffs'

6 Claims are Found Grou ndl ess?

7

II.

8

STATEMENT OF FACTS

9

Plaintiffs' Second Amended Complaint of March I, 2007 (" SAC") added two named

10 Defendants who are employed by the Californ ia Dcpartment of Transportation (Caltrans).

II Defendant James Province is a former Maintenance Area Superintendent, and Defendant Daryl

12 Glenn is a Maintenance Lead Worker. Both are sued in their individual and offic ial capacities.

J3

The SAC is primaril y d irected at the acti ons of the City defendants. Allegations against

14 the other Defendants arc primarily derivative, with the City Defendants being

15

joined in and/or implemented by the remaining defendants, and each of them,

16

acting as the agent, servant, employee and/or in concert, andlor in conspiracy wi th

each of said other defendants. Each of the defendants caused, and is liable for, the

17

unconstitutional and unlawful conduct and resulting injuries by, among other

18

things, personall y participating in said condu ct or acting j ointly or conspiring with others who did so; by authorizing, acquiescing or setting in motion policies. plan s,

19

and acti ons that led to the unl awfu l conduct; by fa iling to take action to prevent

20

the unlawful conduct; by fa iling and refusing with deliberate indifference to
maintain adequate train ing and supervision; and by rati fying the unlawfu l conduct

21

taken by employees under their direction and control, including failing to take

remedial and disciplinary action. (SAC, pps. 5-6, para. 30). 22

The specific chargi ng a llegations against Caltrans employees arc at paragraphs 46 and 47

24 o n pages II and 12 of th e SAC. The purported bases for li ability appear to be that Ca ltrans 25 employees "acquiesced in, and ratified" the City's actions because it allowed the City on slate
26 property pu rsuant to encroachment permits "with knowledge of the unl aw rul and 27 un constitutional condu ct by City officials." (SAC para. 46).

28

-2Motion for Summary Adjudication (FRCP 56)

Included in the brief list of the acts and omissions complained of are: that a Caltrans

2 maintenance lead worker, Defendant Daryl Glenn, received an e-mail communication from the

3 Fresno Police Department which he forwarded to his immediate supervisor, superintendent

4 Defendant James Province. It is further alleged that another e-mail was sent from Fresno P.O. to

5 Glenn requesting a meeting. That meeting eventuall y led to the issuance of an encroachment

6 permit for City employees to lawfully enter onto Caltrans property and, inter alia, erect a ri ght-

7 ot~way fence.

8

There arc no allegations that Defendant Glenn or Defendant Province ever acted (or

9 failed to act) outs ide the immediate scope of their employment w ith respect to the events at issue

lO in the present controversy.

II

Discovery closed on January 31 , 2008. Based on the charging allegations and the

12 evidentiary record, Ca ltrans De fend ants Glenn and Province bring thi s notice of motion and

13 motion for summary adjudication on all or some of the claims.

14

I l l.

15

POINTS AN D AUTHO RIT IES IN SUPPORT OF MOTION

16 A. Federa l Causes of Acti on against Defendants Dary l Glenn and Ja mes Provin ce are

17 Precl uded by Qualified Imm u nity

18

I. Standard for Summary Judgment

19

"[DJamages suits concerning constitutional violations need not proceed to trial, but can

20 be terminated on a properly supported motion for summary judgment based on the defense of

21 immunity." Blllz v. Ecollomoll, 438 U.S. 478, 508 (1978). If the law does not put a government

22 omcial on notice that hi s or her conduct would be clearly unlawfu l, summary judgment based on

23 qualified immunity is appropriate. Sallcier v. Kalz, 533 U.S. 194 (2001).

24

2. Three Bases for Oua lified Immunity all Favor Summary Ad judication

25

Plaintiffs have taken the extraordinary measure of suing two Caltrans maintenance

26 workers in their individual capacities despite the fact they have not alleged any conduct

27 unre lated to the performance of their jobs. In order to protect rank and file employees from such

28 abusive tactics, courts have extended the principles of abso lute immunity normally reserved for

·3· Motion for Summary Adj udi cation (FRCP 56)

state officials by crcating a corollary. Qualified immunity is a judicially created doctrine that

2 stems from the conclusion that few individuals wi ll enter public service if such service entails

3 the ri sk of personal liability for one's official decisions. Malley v. Briggs. 475 U.S. 335, 339

4 ( 1986). Qualified immunity protects "all but the plainly incompetent or those who knowingly

5 violate thc law." HlIlIter v. Bryallt, 502 U.S. 224 ( 1991 ). Naming Defendant Glenn is

6 particu larl y egregious since according to the SAC , hi s officia l deci sion consisted of receiving

7 two e-mail messages ITom the Fresno Police Department. Discovery subsequently revealed that

8 he also went to state-owned rights-of-way after the City employees had completed their clean-up

9 operations. Defendant Province not only received a forwarded e-mail message from Defendant

10 Glenn, he also attended at least one meeting with representatives from the City of Fresno to

11 di scuss the logistics of a City clean-up operation on Cal trans-owned property, and also made

12 Caltrans equipment avai lable for the City's use, thereby continuing a State-City partnership that

13 dates back to 1912.

14

Caltrans Defendants can show they arc entitled to summary judgment based on qualified

15 immunity for three separate reasons :

16

• Plaintiffs' complaint fails to state a federal claim, Siegert v. Gilley. 500 U. S. 226,

. 17

233 (1991);

18

• Caltrans Defendants Glenn and Province objectively believed their conduct was

19

lawfu l in light of clearly established principles governing their conduct, Alldersoll

20

v. Creightoll, 483 U.S. 635, 64 1 ( 1987);

21

• There is no genuine issue of material fact as to whether defendants engaged in

22

conduct violating plainti ffs' clearly established constitutional rights. Burgess v.

23

Pierce COllllty, 9 18 F.2d 104, 106 n.3 (9th Cir. 1990).

24

a. Failure to State a Valid Federal Claim Against Defendants Glenn and Province

25

The ana lytical framewo rk for a section 1983 claim is we ll-estab lished. First, the

26 Plaintiffs must identify a federall y protected right. In the case at bar, Plaintiffs sue for:

27

• "Denial of Constitutional Right Against Unreasonable Search and Seizure - Fourth

28

Amendment" SAC p. 16, citing "Fourth Amcndmcntto the United States Constitutional

[sic] and 42 U.S.C. § 1983." (SAC p. 17, para. 65);

-4Motion for Summary Adjudication (FRCP 56)

2

• " Deni al of Constituti onal Right to Due Process of Law - Fo urteenth Amendm ent," citing

same and 42 U. S.C. § 1983 (SAC p. 17, para 67); and

3

4

• "Deni al of Constitutional Right to Equal Protecti on o f the Laws - Fourteenth

Amendment," again relying on 42 U.S.C. § 1983 . (SAC p. 17 para. 69)

5

6

Next, Plaintiffs must demonstrate that they have suffered a direct inj ury as a result of the

7 defendants' challenged conduct. COUllty of Riverside v. McLaughlin , 500 U.S. 44 ( 199 1). In

8 order to have standing, Plainti ffs must "allege personal injury fairly traceable to the dcfendant's

9 allegedly unlawful conduc!. .. ." Allell v. Wright, 468 U.S. 737 ( 1984).

10

Defendant Province's challenged conduct is that he attended a meetin g with

I I representatives from the City in order to coordinate a city sponsored clean-up operation on

12 Caltrans right- of-way and arrange for the use of Caltrans-owned equi pment. Although

13 Defendant Province need not make any showing on a di spositive issue that Plain tiffs must

14 establi sh at trial , the record demonstrates that he attended the meeting for lawful purposes: to

15 coordinate logistics such that impacts to the transportati on purposes of the property were

16 mi nimal, and to provide for th e erection of a right-of-way fe nce which Caltrans was obligated to

17 authorize under Cal. Sts. & Hys. § 678. (Please sec the Afftdav it of James Province and the

18 Separate Statement of Facts, all fil ed herewith, whi ch demonstrate the total vapidity of

19 Plaintiffs' inab ility to assert any valid claims against Province and Glenn). Under Martillez v.

20 California, 444 U.S . 277 ( 198 0), general tort principles of proximate cause apply to section

21 1983 actions. Even if a defendant in some manner participated in the chain of events caus ing a

22 constitutional deprivation, 1983 liability does not autom aticall y attach: the defendant must have

23 actually caused the constitutional depri vation. Estate of Brooks v. U.S. (9th Cir 1999), 197 FJ d

24 1245, 1248.

25

In order to allege a valid claim against private parties (s uch as Glenn and Prov ince in

26 their indi vid ual capacities) for a depri vation of rights under section 1983 , the complai nt must

27 allege that specific conduct was a proximate cause of the injury. Bro wer v. {nyo COl/llty, 8 17

28 F.2d 540 (9th Cir. 1987), judgment rev' d on other grounds, 489 U.S. 593. In the case at bar, the

· 5· Motion for Summary Adjudication (FRCP 56)

specific conduct alleged by Defendant Glenn is the receipt of two e-mail messages from City of

2 Fresno DeFendants. The first he forwarded to his supcrvisor, Defendant Province, the second

3 requested a meeting. In the former instance, Defendant Glenn did exactly what he was

4 supposed to do: fonvard a commun ication to hi s supervisor. The other alternatives would have

5 been to delete the e-mail or to commit an ultra vires act by exceeding his institutional authority.

6 Imposition of liability for the first e-mail wou ld be tantamount to making any individual with an

7 e-mai l account subject to a 1983 suit. The second e-mail which requested a meeting also does

8 not establish ground s for liability. The working rel ationship between the state and the City of

9 Fresno dates back to 1912 at the latest and there is nothing untoward or sinister about a

10 partnership between two public entities that share adjacent property and face si milar land usc

11 issues.

12

Discovery fa iled to reveal additional overt acts or omissions on Defendant Glenn's part

13 that wou ld impose liab ili ty under section 1983 either in his official or indi vidual capacity.

14 Defendant Glenn did come to Caltrans-owncd property following a city orchestrated clean-up

15 operation, but the record shows that he did not:

16

I) interact directly with members of the homeless community;

17

2) seize any personal property whatsoever;

18

3) personally witness any conduct that was clearly unconstitutional or illegal;

19

4) have any realistic opportunity or legal authori ty to intervene in a police action

20 conducted by armed, uniformed law enforcement personnel. (Affidavit of Dary l Glenn, esp.

21 para. 10).

22

All of the Plaintiffs ' federal claims are defective with respect to Defendants Glenn and

23 Province. To summarize the arguments in Director Kempton's motion to dismiss briefly, the

24 proscription on Search and Seizure fails because Glenn and Province never interacted directly

25 with members of the homeless community during clean-up operations and therefore could not

26 have searched them, nor did they ever take possession of Plaintiffs' personal property. Glenn

27 and Province did not issue the encroachment permits that allowed City Defendants to enter onto

28 Caltrans property under color of law (in order to abate trespassing and concomitant health and

-6Motion for Summary Adjudication (PRep 56)

safety ri sks to the public) so cannot logically be held liable for City Defendants' searches and

2 seizures.

3

Due Process Clai ms against Glenn and Province are similarl y misplaced. Procedural Due

4 Process violations did not occur as a matter of law because Plaintiffs did not deign to avail

5 themselves of availab le state remedies. Zillermoll v. Burel, (1990) 494 U.S. 113, 126. Plaintiffs

6 have not properly alleged nor shown a Substantive Due Process violation by Glenn or Province

7 because there has been no showing of grave unfairness in the discharge of their legal

8 responsibilities. Silvermall v. Barry (1988, App DC) 269 US App DC 327, 845 F2d 1072, reh

9 den, en bane ( 1988, App DC) 27 1 US App DC 179, 851 F2d 434 cert den ( 1988) 488 US 956.

10 And even if Plaintiffs could establi sh every allegation made against Glenn (or Province),

11 liability still docs not attach because "[iJnadvertent errors, honest mistakes, agency confusion,

12 even negligence in the performance of official duties, do not warrant redress under [section
13 1983 ]." Silvermall, supra, citing Ortega Cabrera v. MUI/icipality 0/ Bayamol/, 562 F.2d 9 1,

14 103 (1st Ci r. 1977).

15

Pl aintiffs' Equal Protection claim is spurious because the homeless are not an inherently

16 suspect class that receive heightened scrutiny and the laws regarding the maintenance of the

17 state highway system are narrowly tailored to effect legitimate government interests. See e.g. ,

18 Plyler v. Doe 457 U. S. 202 (1982). There has been no evidentiary showing of selective

19 enforcement aga inst the homeless' unauthori zed encroachments by Caltrans in general or Glenn

20 or Province in particular. Nor does the record even suggest animus towards the homeless by

21 Province or Glenn (who incidentally has volunteered at homeless shelters and was romanti call y
22 involved with someon e who was a member of that community at the time they met).

23

b. Defendants Glenn and Province objectively believed their conduct was lawful in light

24 of clearly established principles governing their actions.

25

The qualified immunity defense lTIay be raised if it can be shown that those asserting it

26 did not violate clearly establi shed statutory or constitutional rights of which a reasonable person

27 would have been aware. Davis v. Scilerer (1984) 468 U.S. 183; Harlow v. Fitzgeraftl ( 1982)

28 457 U.S. 800. In additi on, in personal capacity actions, defendants may assert personal
.,.
Motion for Summary Adjudication (FRep 56)

im munity defenses such as objectively reasonable reliance on existing law. Hafer v. Meko 2 (J 99 1) 502 U.S. 2 1; Kemllcky v. Gralram ( 1985) 473 U. S. 159.

3

Glenn and Province were at all times pert inent to the instant suit employed in Caltrans'

4 Division of Maintenance. They are familiar with the state statutes that govern the maintenance

5 of the state highway system, including the process for disposing of unauthori zed encroachments

6 on the state rights-of-way, more full y set forth in Director Kempton's moti on to dismiss. Givcn 7 that the record shows that neither Glenn nor Province was personall y present to observe any of

8 the allcged Constitutional violations by the City Defendants, it was objectively reasonable for

9 them to believe that their actions of corresponding and meeting with City representatives was

10 lawful conduct.

11

c. There is no genuine issue of material fact as to whether defendants engaged in conduct

12 violating plaintiffs' clearly established consti tutional rights.

13

A court must consider whether there is a genuine issue of fact as to whether defendant

14 engaged in the conduct violating plaintiffs clearly estab lished constitutional right. BI/rgess v.

15 Pierce COI/I/ty, 918 F.2d 104, 106 n.3 (9th Ci r. 1990). As set forth above, neither the pleadings

16 nor discovery have revealed an act or omission of Glenn and Province that violated

17 Plainti ffs' clearly estab lished constitutional rights. Plainti ffs have had ample opportunity to

18 adduce adm issib le evidence against Glenn and Province. "Personal in volvement" of a named

19 defendant in a 1983 action of alleged constitut ional depravation is a prerequisite to an award of

20 damages. Wrigltt v. S lIIi,Ir , 2 1 F.3d 496, 50 1 (2d Cir. 1997).

21

d. Dismissal of claims based on California law is appropriate if federal claims arc

22 dismissed

23

If the federal causes of action are dismissed, it would be appropriate to dismiss the state

24 law clai ms aga inst Glenn and Province. When a federal civil rights claim is dismissed before 25
trial, state clai ms which arc appended thereto generally must fai l as we ll. Girard v. 94th Street 26

27 al/d Fiftlr Ave. Corp. , 530 F.2d 66 ( 1976), cerl. den. 425 U.S. 974 ( 1976).

28

-8· Motion for Summary Adjudication (FRCP 56)

B. State Law C lai ms Must Fail as a Matter of Law

2

Failure to Present a Claim to the Cali fo rnia Victim Compensation and Government C laims

3

Board Compels the D ismissal of All State Claims for Money or Damages.

4

Thc SAC allcges violati ons of, inter alia, the Californ ia Constitution Article I, section

5 7(A), California Civil Code § 2080 et seq., Californi a Government Code § 815.6, Civil Code §
6 52.1, and the common law of conversion.
7

8

Under Cali fornia law, a government claim must be presented against the employing

9 entity, Caltrans, as a condition precedent to bringing suit aga inst an employee or former 10
employee for money or damages. Neal v. Gallill , 35 Ca1.App.3d 87 1, 877-78. Californ ia 11
12 Govern ment Code section 950.2 states in pertinent part that:

13

a cause of acti on against a public employee ... for injury resulting from an

14

act or omiss ion in the scope of his employment as a public employee is

barred if an acti on against the employ ing publi c entity fo r such injury is

15

barred under Part 3 (commencing with section 900) of this division ....

16

This section is applicable even though the public entity is immune from

liability for the injury." (Emphas is supp lied).

17

18

While a plaintiff may joi n state or common law claims to fcderal clai ms in federal court,

19 th e state claims are to be di smissed if they do not comply with the claims-presentation
20 requirements of the Tort Claims Act. K'lfim-P,m alri v. Los A llgeles Police Dep' t (9th Cir,
21
22 1988) 839 F.2d 62 1, 627.

23

Secti on 950.2 is a necessary safeguard within the statutory framework of the Tort C laims

24
Act. As Professor Arvo Van Allstyne notes, the Califo rn ia Law Rcvision Commission 25 26 recognized that absent th e protection, plaintiffs woul d be able to effectively circum vent the act

27 by nam ing a public entity's employecs for work they perform in the ordinary course of bus iness.

28 "Because the empl oying public entity is financ iall y responsible for judgments against its
·9-
Motion for Summary Adjudication (FRCP 56)

empl oyees (Govt C secti on 82 5), the presentation of a claim is required in all cases." Professor

2 Arvo Van Allstyne, California Government Tort Liab ili ty Practice, Continuing Education of the 3
Bar, 4th Ed. § 5.60. 4

5

Also, Plaintiffs must have been aware of the fi ling requircm ent beca use they fil ed claims

6 fo r relief aga inst the City of Fresno and the named Defendants in th e City's employ purs uant to 7
Cal. Gov't Code § 9 1Sea). Plainti ffs never filed analogous state claims or applied for leave to 8
9 (iJ e a late claim with the Victim Compensation and Government Claim s Board accord ing to th e

10 requirements of § 9 15(b).
II
Plaintiffs' state claims must be di smi ssed for failure to comply with the Tort Claims Act. 12
13 Ortega v. O'CollllOr, (9 th Cir. 1985) 764 F.2d 703, 707, rev 'd on other grounds, 480 U.S. 709;

14 Karim-Plil/alti v. Los A I/geles Police Dep't (9th Cir, 1988) 839 F.2d 62 1, 627.

15

c. Relief Sought Against Glenn a nd Province

16

17

Wi th respect to the relief sought. Glenn and Province address the pert inent prayers in turn.

18

Glenn and Prov ince 8rc Caltrans employees who arc not able to direct Departmen t of

19 Transportation policy. Injunctive relief against Glenn and Province would be a fruitless
20
21 exercise; if Glenn is to be enjoined from receiving electronic communications or frequenting

22 public rights-or-way, it should not be done to prevent the form ati on of a working partnership

bctween him and City of Fresno PD. or other officials. James Province has been promoted and 24
25 no longer directs maintenance activities in Fresno.

26

No declaratory judgment is necessary to sanction Glenn 's or Province's work-related

27 policies, practices, or conduct. The record with respect to them demonstrates concerted efforts 28

- 10Motion for Summary Adjudication (FRCP 56)

to promote an effective, lawfu l partnership with another public agency in the interests of public
2 health and safety. The policies and practices bear repetition, not condemnation, and the working
3
relationship between the two public entities should continue when their mutual interests so 4
5 demand.

6

The record shows th at neither Glenn nor Province ever had custody of any of the

7 Plaintiffs' personal property. As such, it would be factually impossible for th em to return it.
8

9 (Affidavi ts of James Province; Daryl Glenn, esp. para. 10).

!O

Plaintiffs may not recover money damages under California Civil Code sections 52 or

II
52.1 , because they failed to satisfy the claims filing requirements set forth in the Tort Claims 12

!3 Act. By its express terms, California Government Code section 815.6 applies only to public

14 entities, not employees. 15
Because the Plaintiffs have not made a prima facie showing of mali ce and have fa ilcd to 16 17 carry their initial burdens on the underlying causes of action, no punitive or exemplary damages
18 should be awarded.
19 Glenn and Province should not be liable for attorneys' fees or costs of suit. Quite to the
20 21 contrary , the actions against them have been frivolous from the outset. If a prevailing defendant
22 establi shes that a claim is entirely groundl ess, a fee award is appropriate. Saman v. Robbins
23 (9th Cir. 1999) 173 F.3 d 1150, 1158. In that case, the prevai ling defendant officer had no
24
25 physical contact with the plaintiff in an excessive force case. Tn th e instant case, Glenn and

26 Province arc charged with unreasonable searches and seizures and deprivations of property 27 28

- 11 Motion for Summary Adjudication (FRCP 56)

notwithstanding the fact that neither of them ever had any direct contact with members o f the

2 home less community or ever took possession of any of their personal property.

3

4

IV

5

CONCLUSION

6

For any and all of the fo regoi ng reasons, the suit against Defendants Daryl Glenn and

7 James Province shou ld be dismissed and Plai ntiffs should bear the Defendants' legal expenses in

8 an amount according to proof by post-ruling motion.

9

DATED: February 28, 2008. 10

Respectfully submitted :
II

BRUCE A. BEHRENS, Chief Counsel THOMAS C. FELLENZ, Deputy Chief Counsel

12

RONALD W. BEALS , Assistant Chief Coun sel

CHERYL D. McNULTY, NAVTEJ S. BASSI

13

DA VID P. HARRJS, MATTHEW B. GEORGE

14

15

16

17

By DAVID P. HARRIS

18

Attorneys for Defendants Daryl Glenn and James

Province In Their Official and Indi vidual Capacities

19

20

21

22

23

24

25

26

27

28

-12Motion for Summary Adjudication (FRep 56)

 
 United States District Court, E.D. California.
Pamela KINCAID, et al., Plaintiffs, v.
CITY OF FRESNO, et al., Defendants. No. CV-F-06-1445 OWW/SMS.
May 12, 2008.
Michael Temple Risher, American Civil Liberties Union of Northern California, San Francisco, CA, Paul Alexander, Heller Ehrman LLP, Menlo Park, CA, for Plaintiffs.
James B. Betts, Betts & Wright, Fresno, CA, David Paul Harris, Navtej Singh Bassi, California Department of Transportation, Sacramento, CA, for Defendants.
MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART CALTRANS DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docs. 183 & 199) AND PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AGAINST CALTRANS DEFENDANTS (Doc. 212)
OLIVER W. WANGER, District Judge.
*1 Before the Court are the motions for summary judgment filed by Defendants Will Kempton, Director of the California Department of Transportation (Caltrans), and Defendants James Province, Maintenance Area Superintendent in Fresno, District 6, and Daryl Glenn, a Caltrans Landscape Maintenance Lead Worker in charge of special programs personnel for Fresno Crew 652 in the Fresno Area Branch of Caltrans District 6, and Plaintiffs' motion for summary judgment against Defendants Province and Glenn.
Plaintiffs' motion was argued on April 25, 2008 and orally granted in part and denied in part from the bench. This Memorandum Decision is intended to amplify the Court's oral rulings made on April 25, 2008.FN1
FN1. Plaintiffs' motion for summary judgment against the City Defendants is resolved by separate Memorandum Decision.

This action concerns a number of clean-up operations (sweeps) conducted in the City of Fresno. The certified class is comprised of “[a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants.”For more than a year, Defendants implemented a policy of seizing and immediately destroying personal property of homeless individuals in an effort to clean up the City of Fresno. A number of these clean up efforts occurred on property belonging to Caltrans. The SAC alleges nine claims for relief:
1. First Claim for Relief-Denial of Constitutional Right Against Unreasonable Search and Seizure in violation of the Fourth Amendment pursuant to 28 U.S.C. § 1983;
2. Second Claim for Relief-Denial of Constitutional Right to Due Process of Law in violation of the Fourteenth Amendment pursuant to 28 U.S.C. § 1983;
3. Third Claim for Relief-Denial of Constitutional Right to Equal Protection of the Laws in violation of the Fourteenth Amendment pursuant to 28 U.S.C. § 1983;
4. Fourth Claim for Relief-Denial of Constitutional Right Against Unreasonable Search and Seizure in violation of California Constitution, Article I, § 13;
5. Fifth Claim for Relief-Denial of Constitutional Right to Due Process of Law in violation of California Constitution Article I, § 7(A);
6. Sixth Claim for Relief-Denial of Constitutional Right to Equal Protection of the Laws in violation of California Constitution, Article I, § 7(A);
7. Seventh Claim for Relief-Violation of California Civil Code § 2080 et seq. and California Government Code § 815.6;
8. Eighth Claim for Relief-Violation of California Civil Code § 52.1;

9. Ninth Claim for Relief-Common Law Conversion.
The SAC prays for injunctive relief enjoining Defendants from continuing or repeating the alleged unlawful policies, practices and conduct; for declaratory relief that Defendants' alleged policies, practices and conduct were in violation of Plaintiffs' rights under the United States and California Constitutions and the laws of the United States and California; for return of Plaintiffs' property; for damages according to proof but no less than $4,000 per incident under California Civil Code §§ 52 and 52.1 and California Government Code § 815.6; for punitive and exemplary damages; and for attorneys' fees and costs of suit.
A. GOVERNING STANDARDS.
*2 Summary judgment is proper when it is shown that there exists “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Materiality is determined by the substantive law governing a claim or a defense. Id. The evidence and all inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.
The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden by identifying the parts of the materials on file it believes demonstrate an “absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to defeat summary judgment. T.W. Elec., 809 F.2d at 630. The nonmoving party “may not rely on the mere allegations in the pleadings in order to preclude summary judgment,” but must set forth by affidavit or other appropriate evidence “specific facts showing there is a genuine issue for trial.”Id. The nonmoving party may not simply state that it will discredit the moving party's evidence at trial; it must produce at least some “significant probative evidence tending to support the complaint.”Id. As explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d

1099, 1102-1103 (9th Cir.2000):
The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial.
A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact ....
*3 If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the

motion.
In Carmen v. San Francisco Unified School District, supra, 237 F.3d at 1031, the Ninth Circuit held: [T]he district court may determine whether there is a
genuine issue of material fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of material fact, where the evidence is not set forth in the opposing papers with adequate references to that it could conveniently be found.
The question to be resolved is not whether the “evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires more than the “mere existence of a scintilla of evidence in support of the plaintiff's position”; there must be “evidence on which the jury could reasonably find for the plaintiff.”Id. The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment.” Id.
B. UNDISPUTED FACTS.
With the exception of the professional job titles and duties of Defendant Kempton and individual Caltrans Defendants and certain other admitted facts, the balance of the facts in this action are disputed and will be resolved at trial. Because the parties' respective statements of undisputed facts and responses thereto are voluminous this Memorandum Decision does not describe them in any further detail.
C. DEFENDANT WILL KEMPTON.
Defendant Will Kempton, sued in his official capacity as Caltrans' Director and only in regard to the First, Second and Third Claims for Relief alleging violation of Federal constitutional rights, moves for summary judgment on the ground that he is not a “person” within the meaning of 42 U.S.C. § 1983.

See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
*4 Plaintiffs acknowledge that damages are not available against Defendant Kempton. Plaintiffs assert that the only relief sought against Defendant Kempton is injunctive and declaratory relief pursuant to Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Defendant Kempton argues that Plaintiffs' requests for injunctive and declaratory relief do not target Caltrans policies, practices and customs: “Ratification, acquiescence, and other theories of vicarious liability are alleged in conclusory fashion in the SAC, but almost no positive acts or omissions are charged nor did discovery [sic].” Defendant Kempton asserts that Caltrans' policies, customs and practices are not the genesis of the alleged constitutional violations: “Plaintiffs have charged codefendants with unconstitutional conduct then attempted to ensnare the Caltrans Defendants, including Defendant Kempton, with blanket claims of involvement or ratification.”
Plaintiffs respond that they need not establish that Caltrans had an official policy of violating the Constitution in order to obtain relief. Plaintiffs cited Truth v. Kent School Dist., 499 F.3d 999, 1008 (9th Cir.2007): “Monell' s requirements do not apply where the plaintiffs only seek prospective relief ...See Chaloux v. Killeen, 886 F.2d 247, 250-51 (9th Cir.1989).” Plaintiffs further cite National Audobon Society, Inc. v. Davis, 307 F.3d 835, 846-847 (9th Cir.2002). There, the Ninth Circuit “declined to read additional ‘ripeness' and ‘imminence’ requirements into the Ex Parte Young exception to Eleventh Amendment immunity in actions for declaratory relief beyond those already imposed by a general Article III and prudential ripeness analysis.” Id. at 847.The state had argued for a “ripeness” component in the Ex Parte Young exception based on cases addressing whether a named state official has direct authority and practical ability to enforce the challenged statute. Id. at 846.See, e.g., Snoeck v. Brussa, 153 F.3d 984, 987 (9th Cir.1998) (“As Ex Parte Young explains, the officers of the state must be cloaked with a duty to enforce the laws of the state and must threaten or be about to commence civil or criminal proceedings to enforce an unconstitutional act.”).

Plaintiffs argue that evidence shows that it is customary for Caltrans to work with the City in facilitating the sweeps of homeless encampments that are conducted on Caltrans property and that a permanent injunction is necessary to prevent Caltrans from providing assistance in the form of equipment and personnel to destroy that property. Plaintiffs asserts that Caltrans itself appears to have destroyed property of the homeless even after the Court's Preliminary Injunction. Plaintiffs argue that this evidence demonstrates the need for a permanent injunction to prevent Caltrans from continuing this conduct and that such an injunction is properly directed to Defendant Kempton because he has direct authority over Caltrans.

*5 Defendant Kempton's motion for summary judgment is DENIED. The existence of disputed issues of fact as to the participation in the seizure and immediate destruction of Plaintiffs' property by Caltrans through Defendants Province and Glenn preclude any grant of permanent injunctive relief until the completion of trial.

E. ALLEGED CONSTITUTIONAL VIOLATIONS.

Defendants move for summary judgment in their favor in connection with the federal constitutional claims alleged against them.

Defendants note that Plaintiffs had no legal right to

encamp on Caltrans' rights-of-way. Defendants argue

that the rights-ofway are public property belonging to

the State of California, but its public use is for

transportation purposes only. Caltrans has a statutory

duty to improve and maintain the state highways.

California Streets & Highways Code § 91. The term

“highway” “includes bridges, culverts, curbs, drains,

and all works incidental to highway construction,

improvement, and maintenance.”California Streets &

Highways Code § 23. “Maintenance” includes “[t]he

preservation and keeping of rights-of-way, and each

type of roadway, structure, safety convenience or

device, planting, illumination equipment, and other

facility, in the safe and usable condition to which it

has been improved or constructed, but does not

include

reconstruction

or

other

improvement.”California Streets & Highway Code §

27(a). Defendants assert that Caltrans' rights-of-way

are a design element that provide a clear recovery

zone for errant automobiles, see Exhibit 1; Defendant Kempton's Motion for Summary Judgment; Caltrans Design Manual, Topic 309.1(2), as well as access for emergency and maintenance vehicles, firebreaks, and adequate drainage, see Exhibit 2; Defendant Kempton's Motion for Summary Judgment; Caltrans Maintenance Manual, Ch. D1. California Streets & Highways Code § 91.6 provides that Caltrans “shall, within its maintenance programs relating to litter cleanup and abatement, assign a high priority to litter deposited along state highway segments adjoining storm drains, streams, rivers, waterways, beaches, the ocean, and other environmentally sensitive areas.”Caltrans' Maintenance Manual, relying on Streets & Highways Code § 91.6, provides that “[i]n addition, removal efforts should be focused on routes to airports, commuter routes, and heavily traveled inter-city routes.”
1. Fourth Amendment.
Plaintiffs allege that their rights under the Fourth Amendment against unreasonable searches and seizures were violated by Defendants taking and destroying their personal property, without providing either adequate notice or an opportunity to retrieve personal possessions before they were destroyed, and without a legitimate government interest.
Defendants contend they are entitled to summary judgment on this claim because no Caltrans employee seized any personal property of Plaintiffs.
Plaintiffs argue that the fact none of these Defendants personally and directly seized their personal property and destroyed it does not entitle them to summary judgment.
*6 Plaintiffs cite Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir.1978):
A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirming act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made ... Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who ‘causes' any citizen to be subjected to a constitutional deprivation is also liable. The

requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.
Plaintiffs refer to evidence that Defendant Glenn provided Caltrans' equipment and employees, inmate work crews and supervision to the City Defendants, thereby facilitating the City-initiated clean-ups. Plaintiffs refer to evidence that Defendant Province was kept informed of Defendant Glenn's actions in regard to the clean-ups and approved the resources and other support given by Caltrans to the City to aid the clean-up efforts. Plaintiffs cite Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991):
Supervisory liability is imposed against a supervisory official in his individual capacity for his ‘own culpable action or inaction in the training, supervision, or control of his subordinates,’... for his “ ‘acquiesce[nce] in the constitutional deprivations of which [the] complaint is made,’ ”..., or for conduct that showed a “ ‘reckless or callous indifference to the rights of others.’ ”
Plaintiffs argue that Defendant Province's knowledge of Caltrans' participation in the City's clean-ups and his acquiescence to it “was a key link in the causal chain leading to the violation of Plaintiffs' constitutional rights, and gives rise to his individual liability.”Plaintiffs argue that it is irrelevant whether the Caltrans Defendants had the opportunity or authority to intervene in, or stop, the City's conduct because the Caltrans Defendants “never ceased their own support and facilitation of the CleanUps.”Plaintiffs contend that the Caltrans Defendants knew how the clean-ups were conducted and that Plaintiffs' property was summarily destroyed, yet kept providing equipment, work crews and supervision to facilitate them.
Because the facts are disputed as to the roles and conduct of the Caltrans Defendants, summary judgment for either party with regard to Plaintiffs' claim of Fourth Amendment violation is DENIED.
2. Fourteenth Amendment Due Process.
Plaintiffs' Fourteenth Amendment Due Process

Clause claim is grounded on procedural due process.
The Plaintiffs' personal possessions constitute property for purposes of the Fourteenth Amendment. See Fuentes v. Shevin, 407 U.S. 67, 84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).“The central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner.” Orloff v. Cleland, 708 F.2d 372, 379 (9th Cir.1983). As explained in Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-434, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982):
*7 As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism that ‘some form of hearing’ is required before the owner is finally deprived of a protected property interest ... And that is why the Court has stressed that, when a ‘statutory scheme makes liability an important factor in the State's determination ..., the State may not, consistent with due process, eliminate consideration of that factor in its prior hearing ... To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.
“We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in “ ‘extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” ‘ “ United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). When a protected property interest is threatened, three factors must be considered to determine whether the basic requirements of procedural due process have been met: “First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirement would entail.”

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Plaintiffs argue that they are entitled to summary judgment that the City Defendants violated their right to procedural due process. Plaintiffs do not discuss the adequacy of notice but, rather, focus solely on the immediate destruction of property following the seizures during the clean ups. Plaintiffs contend that the record in this action establishes that this immediate destruction prevented Plaintiffs from any opportunity to present a claim of entitlement to the property destroyed.
Plaintiffs argue that the Caltrans Defendants are not entitled to summary judgment with regard to this claim for the same reasons argued in opposition to the Fourth Amendment claim, i.e., evidence that the Caltrans Defendants facilitated the clean-ups by providing equipment, work crews and supervision.
The parties' respective motions for summary judgment with regard to Plaintiffs' claim of violation of procedural due process is DENIED because factual issues exist. However, assuming arguendo that the Caltrans Defendants knowingly facilitated the immediate destruction of Plaintiffs' personal property as Plaintiffs assert, there is a question how the Caltrans Defendants facilitated or participated in the City's alleged failure to provide notice and an opportunity to be heard prior to the destruction of personal property. Although the Caltrans Defendants were not in a position to provide procedural due process, establishment of knowing participation with notice of the immediate destruction practice could provide a basis for liability.
3. Fourteenth Amendment Equal Protection.
*8 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).“The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or

persons ... We have attempted to reconcile the principle with reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
As discussed in the accompanying Memorandum Decision as to the City Defendants, the respective motions for summary judgment are DENIED; factual issues exist as to whether persons other than the homeless had their personal property immediately destroyed.
F. QUALIFIED IMMUNITY.
Defendants Province and Glenn move for summary judgment in connection with the federal constitutional claims against them on the basis of qualified immunity. Plaintiffs argue that summary judgment on this ground should be denied.
Qualified immunity serves to shield government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Ninth Circuit employs a three-part test to determine whether an individual is entitled to qualified immunity. First, the specific right allegedly violated must be identified. Secondly, it must be determined whether that right was so clearly established as to alert a reasonable officer to its constitutional parameters. Third, if the law is clearly established, it must be determined whether a reasonable officer could have believed lawful the particular conduct at issue. Kelly v. Borg, 60 F.3d 664, 666 (9th Cir.1995). The plaintiff in a Section 1983 action bears the burden of proving that the right allegedly violated was clearly established at the time of the officer's allegedly impermissible conduct. Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir.1993). A law is “clearly established” when “the contours of that right [are] sufficiently clear that a reasonable officer would understand that what he is doing violates that right.”Anderson v. Creighton, 489 U.S. 635, 640 (1987). To demonstrate clearly established law at the time of the events in question, the plaintiff

‘must show that the particular facts of [the] case support a claim of clearly established right.’...This does not mean that the ‘exact factual situation’ of [the case] must have been previously litigated ... 7F[S]pecific binding precedent is not required to show that a right is clearly established for qualified immunity purposes.' ...Absent binding precedent, ‘a court should look at all available decisional law including decisions of state courts, other circuits, and district courts to determine whether the right was clearly established.’...Nonetheless, ‘[t]he contours of the [clearly established] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’....
*9 Doe By and Through Doe v. Petaluma City School Dist., 54 F.3d 1447, 1450 (9th Cir.1995). The Supreme Court has set forth a two-pronged inquiry to resolve all qualified immunity claims. First, “taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers' conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity. However, if the court determines that the conduct did violate a constitutional right, Saucier's second prong requires the court to determine whether, at the time of the violation, the constitutional right was “clearly established.” Id.“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”Id. at 202.
This inquiry is wholly objective and is undertaken in light of the specific factual circumstances of the case. Id. at 201.Even if the violated right is clearly established, Saucier recognized that, in certain situations, it may be difficult for a police officer to determine how to apply the relevant legal doctrine to the particular circumstances he faces. If an officer makes a mistake in applying the relevant legal doctrine, he is not precluded from claiming qualified immunity so long as the mistake is reasonable. If “the officer's mistake as to what the law requires is reasonable, ... the officer is entitled to the immunity defense.”Id. at 205.In Brosseau v. Haugan, 543 U.S.

194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), the Supreme Court reiterated:
Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U.S., at 206 (qualified immunity operates ‘to protect officers from the sometimes “hazy border between excessive and acceptable force” ’). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.
It is important to emphasize that this inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’Id., at 201.As we previously said in this very context:
‘[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet, that is not enough. Rather, we emphasized in Anderson [v. Creighton]“that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.'...The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted .'...
*10 The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner... In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality. See Graham v. Connor, supra, at 396 (“ ‘[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application”’). Of course, in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.'
543 U.S. at 198-199.
Plaintiffs argue that Defendants are not entitled to summary judgment on the ground of qualified immunity. Plaintiffs cite San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977-978 (9th Cir.2005): “These cases would have alerted any reasonable officer that the Fourth Amendment forbids ... the destruction of a person's property, when that destruction is unnecessary-i.e., when less instrusive, or less destructive, alternatives exist.”Plaintiffs also cite Logan v. Zimmerman Brush Co., supra, 455 U.S. at 433:“[I]t has become a truism that ‘some form of hearing’ is required before the owner is finally deprived of a protected property interest.”
Because the facts are disputed, the respective motions for summary judgment on the ground of qualified immunity are DENIED.
D. STATE LAW CLAIMS FOR DAMAGES.
Defendants move for summary judgment on the state law claims for relief to the extent that the SAC seeks money damages on the ground that Plaintiffs did not file a claim against their employing entity, Caltrans, as required by the California Government Claim Act before bringing suit against Defendants Province and Glenn.
Plaintiffs oppose summary judgment on this ground. As explained in Gatto v. County of Sonoma, 98 Cal.App.4th 744, 762, 120 Cal.Rptr.2d 550 (2002):
“ ‘[A]n action for specific relief does not lose its exempt status solely because incidental money damages are sought.’...The 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.
Plaintiffs assert that a “class-action civil rights suit seeking to overturn a City policy is not subject to the claims requirement, even when it seeks damages in

addition to equitable relief.”FN2
FN2. Plaintiffs note that the Court, in granting Plaintiffs' motion for class certification, stated, in discussing the superiority of a class action under Rule 23(b)(3), Federal Rules of Civil Procedure, that “[t]he primary relief sought in injunctive relief.” Kincaid v. City of Fresno, 244 F.R.D. 597, 607 (E.D.Cal.2007). Because the Court's statement was made in the context of an entirely different issue, it does not bind the Court.
To make the determination whether a government claim is required, California courts analyze the various claims for relief in the complaint at issue. See Loehr v. Ventura County Community College Dist., 147 Cal.App.3d 1071, 1080-1082, 195 Cal.Rptr. 576 (1983); Gatto, supra, 98 Cal.App.4th at 762, 120 Cal.Rptr.2d 550; Lozada v. City and County of San Francisco, 145 Cal.App.4th 1139, 1168-1170, 52 Cal.Rptr.3d 209 (2006); see also Independent Housing Services of San Francisco v. Fillmore Center Associates, 840 F.Supp. 1328, 1358 (N.D.Cal.1993):
*11 While plaintiffs do seek damages, their request for an injunction declaring that the Agency is in violation of the handicap access laws and must comply with them in the future is of great weight and not just ancillary to the request for damages. IHS's potential damages are small and particularly inconsequential compared to the effect of the declarations it seeks. The court therefore finds that no statutory notice was required under the Tort Claims Act.
The SAC prays for no less than $4,000.00 “per incident” under California Civil Code §§ 52 and 52.1, California Government Code § 815.6, and under the common law doctrine of conversion. Although there does not yet appear to be a firm estimate of the number of class members, the class is “[a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants.”In their motion for class certification, Plaintiffs represented that “hundreds” of homeless persons in Fresno meet the class definition. If there

are 200 class members, the damages sought by Plaintiffs totals $800,000.00. In addition, Plaintiffs seek exemplary and punitive damages. Here, it cannot be concluded that Plaintiffs' prayer for damages are not small or incidental to their prayers for injunctive and declaratory relief.
In addition, Plaintiffs contend that a claim for return of property is not subject to the claim requirement. Minsky v. City of Los Angeles, 11 Cal.3d 113, 123124, 113 Cal.Rptr. 102, 520 P.2d 726 (1974).
Plaintiffs reliance on Minsky is misplaced. The gravamen of this litigation is the immediate destruction of unattended personal property. Plaintiffs make no claim for the return of property; nor is there any suggestion there exists property to return. Plaintiffs have emphasized that their property is destroyed and lost forever.
Plaintiffs have not complied with the claim requirements of the California Tort Claim Act with regard to Defendants Province 22 and Glenn. Defendants Province and Glenn's motion for summary judgment on the state law claims for damages is GRANTED; Plaintiffs' motion for summary judgment against Defendants Province and Glenn on the state law claims for damages is DENIED.
E. PRAYERS FOR INJUNCTIVE AND DECLARATORY RELIEF.
Plaintiffs and the Caltrans Defendants move respectively for summary judgment on the prayers for permanent injunctive and declaratory relief. The Caltrans Defendants refer to the City's administrative order adopted following the preliminary injunction and further assert that any injunctive relief should not include Defendants Glenn and Province. Plaintiffs argue that such relief is still necessary because the City could revise or disregard the administrative order. These issues are subject to proof.
The parties' respective motions for summary judgment are DENIED; whether the injunctive or declaratory remedies sought are available and necessary cannot be determined until after trial.
CONCLUSION

*12 For the reasons stated above:
A. Defendant Kempton's motion for summary judgment is DENIED;
B. Plaintiffs' motion for summary judgment against Defendants Province and Glenn is DENIED;
C. Defendants Province and Glenn's motion for summary judgment is GRANTED as to the state law claims for damages asserted against them and DENIED on all other grounds.
D. Counsel for the Caltrans Defendants shall prepare and lodge a form of order that the rulings set forth in this Memorandum Decision within five (5) days following the date of service of this decision.
IT IS SO ORDERED.
E.D.Cal.,2008. Kincaid v. City of Fresno Slip Copy, 2008 WL 2038386 (E.D.Cal.)
END OF DOCUMENT

 
 United States District Court, E.D. California.
Pamela KINCAID, et al., Plaintiff, v.
CITY OF FRESNO, et al., Defendants. No. CV-F-06-1445 OWW.
May 12, 2008.
Michael Temple Risher, American Civil Liberties Union of Northern California, San Francisco, CA, Paul Alexander, Heller Ehrman, LLP, Menlo Park, CA, for Plaintiff.
James B. Betts, Betts & Wright, Fresno, CA, David Paul Harris, Caltrans Legal Division, Navtej Singh Bassi, California Department of Transportation, Sacramento, CA, for Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY AGAINST THE
CITY DEFENDANTS (Doc. 212)
OLIVER W. WANGER, District Judge.
*1 Before the Court is Plaintiffs' motion for summary judgment as to liability against Defendants City of Fresno; Chief of Police Jerry Dyer; Fresno Police Department Captain Greg Garner; Fresno Police Officer Reynaud Wallace; John Rogers, Manager of the Community Sanitation Division of the City of Fresno; and Phillip Weathers, employee of the Community Sanitation Division of the City of Fresno.
Plaintiffs' motion was argued on April 25, 2008 and orally granted in part and denied in part from the bench. This Memorandum Decision is intended to amplify the Court's oral rulings made on April 25, 2008.FN1
FN1. Plaintiffs' motion for summary judgment against the Caltrans Defendants and the Caltrans Defendants' motions for summary judgment are resolved by separate Memorandum Decision.
This action concerns a number of clean-up operations

(sweeps) conducted by Defendants. The certified class is comprised of “[a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants. For more than a year, Defendants implemented a policy of seizing and immediately destroying personal property of homeless individuals in an effort to clean up the City of Fresno. A number of these clean up efforts occurred on property belonging to Caltrans. The SAC alleges nine claims for relief:
1. First Claim for Relief-Denial of Constitutional Right Against Unreasonable Search and Seizure in violation of the Fourth Amendment pursuant to 28 U.S.C. § 1983;
2. Second Claim for Relief-Denial of Constitutional Right to Due Process of Law in violation of the Fourteenth Amendment pursuant to 28 U.S.C. § 1983;
3. Third Claim for Relief-Denial of Constitutional Right to Equal Protection of the Laws in violation of the Fourteenth Amendment pursuant to 28 U.S.C. § 1983;
4. Fourth Claim for Relief-Denial of Constitutional Right Against Unreasonable Search and Seizure in violation of California Constitution, Article I, § 13;
5. Fifth Claim for Relief-Denial of Constitutional Right to Due Process of Law in violation of California Constitution Article I, § 7(A);
6. Sixth Claim for Relief-Denial of Constitutional Right to Equal Protection of the Laws in violation of California Constitution, Article I, § 7(A);
7. Seventh Claim for Relief-Violation of California Civil Code § 2080 et seq. and California Government Code § 815.6;
8. Eighth Claim for Relief-Violation of California Civil Code § 52.1;
9. Ninth Claim for Relief-Common Law Conversion.

The SAC prays for injunctive relief enjoining Defendants from continuing or repeating the alleged unlawful policies, practices and conduct; for declaratory relief that Defendants' alleged policies, practices and conduct were in violation of Plaintiffs' rights under the United States and California Constitutions and the laws of the United States and California; for return of Plaintiffs' property; for damages according to proof but no less than $4,000 per incident under California Civil Code §§ 52 and 52.1 and California Government Code § 815.6; for punitive and exemplary damages; and for attorneys' fees and costs of suit.
A. GOVERNING STANDARDS.
*2 Summary judgment is proper when it is shown that there exists “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Materiality is determined by the substantive law governing a claim or a defense. Id. The evidence and all inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.
The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden by identifying the parts of the materials on file it believes demonstrate an “absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to defeat summary judgment. T.W. Elec., 809 F.2d at 630. The nonmoving party “may not rely on the mere allegations in the pleadings in order to preclude summary judgment,” but must set forth by affidavit or other appropriate evidence “specific facts showing there is a genuine issue for trial.”Id. The nonmoving party may not simply state that it will discredit the moving party's evidence at trial; it must produce at least some “significant probative evidence tending to support the complaint.”Id. As explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-1103 (9th Cir.2000):

The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial.
A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact ....
*3 If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.

In Carmen v. San Francisco Unified School District, supra, 237 F.3d at 1031, the Ninth Circuit held: [T]he district court may determine whether there is a
genuine issue of material fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of material fact, where the evidence is not set forth in the opposing papers with adequate references to that it could conveniently be found.
The question to be resolved is not whether the “evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires more than the “mere existence of a scintilla of evidence in support of the plaintiff's position”; there must be “evidence on which the jury could reasonably find for the plaintiff.”Id. The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment.” Id.
B. STATEMENT OF ADMITTED FACTS.
At the hearing on the motion for summary judgment, the City Defendants conceded that the City conducted 14 clean up efforts in which the residents of a temporary encampment were asked to relocate themselves and their personal property before the area was cleared by City crews:
A. February 4, 2004-Santa Clara Avenue;
B. August 4, 2004-Golden State and Ventura Street off ramp;
C. January 2005-E Street, F Street and the Monterey Street overpass;
D. June 27, 2005-California Street and Golden State, near Highway 41;

E. October 15, 2005-Santa Clara and G or E Streets;
F. January 11, 2006-Santa Clara and G or E Streets;
G. January 18, 2006-Santa Clara and G or E Streets;
H. February 12, 2006-Monterey Street overpass;
I. March 2006-H Street and Monterey Street overpass;
*4 J. April 6, 2006-Santa Clara and G or E Streets;
K. May 3, 2006-E Street;
L. May 25, 2006-Santa Clara and G or E Streets;
M. June 22, 2006-E Street and Santa Clara;
N. August 26, 2006-E Street
The City Defendants conceded at the hearing that the clean ups on these 14 days were conducted pursuant to the City's policy previously found to be unlawful by the Court during the preliminary injunction proceedings.
With the exception of the professional job titles and duties of the individual City Defendants and certain other admitted facts, the balance of the facts in this action are disputed and will be resolved at trial. Because the parties' respective statements of undisputed facts and responses thereto are voluminous, comprising more than one hundred pages, this Memorandum Decision does not describe them in any further detail.
C. PLAINTIFFS' MOTION AGAINST CITY DEFENDANTS.
Plaintiffs move for summary judgment against the City Defendants on all claims alleged in the SAC.
1. Federal Constitutional Claims.
a. Fourth Amendment.
The Fourth Amendment to the United States Constitution protects against unreasonable searches

and seizures. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir.2005). A seizure is unreasonable if the government's legitimate interests in the seizure outweigh the individual's legitimate expectations of privacy. See Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A seizure for Fourth Amendment purposes may also occur when there is some meaningful interference with an individual's possessory interest in property. Soldal v. Cook County, Ill., 506 U.S. 56, 63, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Fourth Amendment has taken place. Id. at 68.An officer who comes across an individual's property in a public area may seize it only if Fourth Amendment standards are satisfied-for example, if the items are evidence of a crime or contraband. Id.
The City Defendants do not respond to the merits of Plaintiffs' motion that the seizure and immediate destruction of unattended personal property of homeless persons violates the Fourth Amendment. Defendants did not dispute this argument at the hearing.
Because the City Defendants have not responded to their claim of violation of the Fourth Amendment, Plaintiffs contend. that they are entitled to summary judgment on their Fourth Amendment claim.
If Plaintiffs establish facts at trial that the City Defendants seized and immediately destroyed the personal property of Plaintiffs, Plaintiffs will have established a violation of the Fourth Amendment as a matter of law.
b. Fourteenth Amendment Due Process Clause.
The Second Claim for Relief alleges that Defendants' alleged policies, practices and conduct violate plaintiffs' right to due process of law under the Fourteenth Amendment.
Plaintiffs' Fourteenth Amendment Due Process Clause claim is grounded on procedural due process.
*5 The Plaintiffs' personal possessions constitute property for purposes of the Fourteenth Amendment. See Fuentes v. Shevin, 407 U.S. 67, 84, 92 S.Ct.

1983, 32 L.Ed.2d 556 (1972).“The central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner.” Orloff v. Cleland, 708 F.2d 372, 379 (9th Cir.1983). As explained in Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-434, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982):
As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism that ‘some form of hearing’ is required before the owner is finally deprived of a protected property interest ... And that is why the Court has stressed that, when a ‘statutory scheme makes liability an important factor in the State's determination ..., the State may not, consistent with due process, eliminate consideration of that factor in its prior hearing ... To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.
“We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in ‘ “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” ’ ” United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). When a protected property interest is threatened, three factors must be considered to determine whether the basic requirements of procedural due process have been met: “First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirement would entail.”
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Plaintiffs argue that they are entitled to summary judgment that the City Defendants violated their right

to procedural due 10 process. Plaintiffs do not discuss the adequacy of notice but, rather, focus solely on the immediate destruction of property following the seizures during the clean ups. Plaintiffs contend that the record in this action establishes that this immediate destruction prevented Plaintiffs from any opportunity to present a claim of entitlement to the property destroyed.
The City Defendants do not address the factual or legal merits of Plaintiffs' Fourteenth Amendment procedural due process claim. Rather, the City Defendants refer to the Fifth Amendment's takings clause, a claim not pled by Plaintiffs. The City Defendants cite Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996) in contending that “Plaintiff's [sic] more generalized takings claim premised on a violation of the Fourteenth Amendment's Due Process Clause is subsumed by his [sic] more particular takings claim premised on a violation of the Fifth Amendment's Just Compensation Clause.”
*6 The City Defendants make this argument because, under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), a takings claim against a public entity is not ripe if a property owner has an adequate remedy under state law for obtaining just compensation and the property owner has not availed himself of that process. Until the property owner has been denied just compensation, no constitutional violation occurs. In Williamson, a successor in interest to developers brought an action against the planning commission, alleging that the application of government regulations involving a county zoning ordinance for the cluster development of residential areas affected a taking of property for which the Fifth Amendment required just compensation. The Supreme Court, assuming that the government regulation may affect a taking within the Fifth Amendment and that the Fifth Amendment required payment of money damages to compensate for the taking, any award of damages was premature where the developer had not yet obtained a final decision regarding the application of the ordinance and its regulations to its property and had not yet utilized state law procedures for obtaining just compensation.
“Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a

particular source of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
The Fifth Amendment provides that “[n]o person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation.”FN2
FN2.“The Due Process Clause of the Fifth Amendment ... appl[ies] only to actions of the federal government-not to those of state or local governments.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.2001), citing Schwieker v. Wilson, 450 U.S. 221, 227, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981).
In Armendariz, owners of low-income housing properties brought a Section 1983 damages action against city officials, alleging that conducting sweeps and overenforcing a housing code to relocate criminals violated substantive due process. The Ninth Circuit explained:
What plaintiffs allege is a scheme by defendants to evict tenants, deprive the plaintiffs of rental income that could have been used to bring the buildings into compliance, prevent owners from learning what repairs were necessary to come into compliance, and invent new violations after plaintiffs had conducted repairs that would bring their properties into compliance. The alleged purpose of this scheme was to deprive the plaintiffs of their property, either by forced sale, driving down the market value of the properties so a shopping-center developer could buy them at a lower price, or by causing the plaintiffs to lose their properties by foreclosure ... If the plaintiffs can prove their allegations, the defendants' actions would constitute a taking of the property.
Id. at 1321.The Ninth Circuit held that “since the Takings Clause ‘provides an explicit textual source of constitutional protection’ against ‘private takings,’ the Fifth Amendment (as incorporated by the Fourteenth), ‘not the more generalized notion of “substantive due process,” must be the guide’ in

reviewing the plaintiffs' claim of a “private taking” ...' and that “[b]ecause the conduct that the plaintiffs allege is the type of government action that the Fourth and Fifth Amendments regulate, Graham precludes their substantive due process claim.” Armendariz, supra, 75 F.3d at 1324.FN3
FN3.Armendariz has been limited by the Ninth Circuit in Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th Cir.2007), based on the Supreme Court's decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). In Lingle, the Supreme Court held an arbitrary and irrational deprivation of real property, although it would no longer constitute a taking, might be “so arbitrary or irrational that it runs afoul of the [substantive] Due Process Clause.” 544 U.S. at 542. The Ninth Circuit held: “Given that holding, it must be true that the Armendariz line of cases can no longer be understood to create a ‘blanket prohibition’ of all property-related substantive due process claims.'Squaw Valley, 375 F.3d at 949. After Lingle,‘the Fifth Amendment does not invariably preempt a claim that land use action lacks any substantial relation to the public health, safety, or general welfare.’Crown Point, at 856, regardless of anything Squaw Valley said to the contrary ... We see no difficulty in recognizing the alleged deprivation of rights in real property as a proper subject of substantive due process analysis.” 509 F.3d at 1025-1026.
*7 The City Defendants cite a number of cases for the proposition that a Fourteenth Amendment procedural due process claim is subsumed in a Fifth Amendment takings claim.
The City Defendants cite Miller v. Campbell County, 945 F.2d 348 (10th Cir.1991).
In Miller, homeowners brought a suit for damages suffered when their village was declared uninhabitable by county commissioners. Plaintiffs brought both a Fifth Amendment takings claim and procedural and substantive due process claims. The Tenth Circuit held:

Because the Just Compensation Clause of the Fifth Amendment imposes very specific obligations upon the government when it seeks to take private property, we are reluctant in the context of a factual situation that falls squarely within that clause to impose new and potentially inconsistent obligations upon the parties under the substantive or procedural components of the Due Process Clause. It is appropriate in this case to subsume the more generalized Fourteenth Amendment due process protections within the more particularized protections of the Just Compensation Clause.
945 F.2d at 348.
In Rocky Mountain Materials & Asphalt, Inc. v. Bd. of County Comm'rs of El Passo County, 972 F.2d 309 (10th Cir.1992), also cited by the City Defendants, a mining company brought a civil rights action against a county and its board of commissions, claiming that its property had been taken without just compensation in violation of the Fifth Amendment and in violation of procedural due process under the Fourteenth Amendment. The Tenth Circuit held:
When a plaintiff alleges that he was denied a property interest without due process, and the loss of that property interest is the same loss upon which the plaintiff's takings claim is based, we have required the plaintiff to utilize the remedies applicable to the takings claim ... [U]ntil a plaintiff has resorted to the condemnation procedures to recover compensation for the alleged taking, the procedural due process claim is likewise not ripe because it is in essence based on the same deprivation.
972 F.2d at 311.
The City Defendants cite Bateman v. City of West Bountiful, 89 F.3d 704 (10th Cir.1996). In Bateman, a property owner brought a civil rights action against the city alleging that a city official's filing of a certificate of noncompliance after an alleged waiver of zoning requirements violated the Fifth Amendment's takings clause, due process and equal protection. “The Tenth Circuit repeatedly has held that the ripeness requirement of Williamson applies to due process and equal protection claims that rest upon the same facts as a concomitant takings claim.” Id. at 709.

The City Defendants cite Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285 (3rd Cir.1993) (owners brought civil rights action against township arising from zoning hearing officer's revocation of tenant's use permit, alleging violations of substantive due process, procedural due process, and equal protection. The Third Circuit held:
*8 Defendants contend that the finality rule applies regardless of the theory on which plaintiffs attack a land-use decision-even where the attack is premised on substantive due process, procedural due process, and equal protection. We believe the finality rule applies to each of plaintiffs' claims.
983 F.2d at 1292. Accord Bigelow v. Michigan Department of Natural Resources, 970 F.2d 154, 159-160 (6th Cir.1992), where commercial fishermen brought an action against the state, alleging, inter alia, a taking without just compensation and denial of equal protection and procedural due process arising from the state's support of a plan, approved by the federal court, in which Indians were given exclusive rights to fish in certain state waters; John Corporation v. City of Houston, 214 F.3d 573, 585586 (5th Cir.2000), where owners of demolished buildings brought an action against the city, alleging that the city demolished the property without a public purpose and without just compensation in violation of the Fifth Amendment, as well as their rights under the Eighth and Fourteenth Amendments.
Relying on these cases, the City Defendants contend:
When a plaintiff alleges that it was denied a property interest without due process, and the loss of that property interest is the same loss upon which the plaintiff's [sic] takings claim is based, it [sic] must utilize the remedies applicable to the takings claim in order to satisfy the ripeness requirement. In this case, because Plaintiffs' procedural due process claim is premised on the same allegations as their unlawful taking, it too is premature. The unripe takings claim renders the ancillary due process claim unripe as well. Thus, until Plaintiffs have pursued their remedies in state court, a federal court cannot make a complete determination as to the allegations of procedural due process.
Plaintiffs reply that they have not alleged a Fifth

Amendment takings claim in the SAC. They further note that the cases upon which the City Defendants rely all involve zoning or similar regulatory situations. Plaintiffs note that in Williamson County, a successor in interest to developers brought an action against the planning commission alleging the taking of property.
Plaintiffs argue that these cases have no application to this action in which Plaintiffs claim that the total and immediate destruction of their personal possessions violated procedural due process under the Fourteenth Amendment. Plaintiffs cite San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, 825 F.3d 1404 (9th Cir.1987). There, an incorporated physicians' group, whose contract to supply medical services to the county was terminated, brought an action against the county, alleging deprivation of property interest without due process of law. In dicta, the Ninth Circuit noted:
Appellees argue that even if Physicians' Group has a protectible interest under state and federal law, no harm is done until plaintiffs exhaust their state court remedies. Cf. Williamson County Regional Planning v. Hamilton Bank, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 ... (1985).Williamson, however, dealt with a situation where there could be no requirement of predeprivation due process. See also Hudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 ... (1984); Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 ... (1981). Here, Physicians' Group alleges planned, non-random behavior on the part of the state. In such circumstances, a section 1983 case for violation of due process may lie without regard to, or use of, the state's postdeprivation remedies. Logan [v. Zimmerman Brush Co.], 455 U.S. at 435-37... The district court ruled correctly on this issue.
*9 825 F.2d at 1410 n. 6.
In Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D.Fla.1992), the District Court granted declaratory and injunctive relief in a bifurcated trial in which homeless plaintiffs alleged that the seizure and destruction of their personal property violated their constitutional rights. The Pottinger Court found that

the City of Miami's seizure and destruction of the plaintiffs' personal property violated the Fifth Amendment Takings Clause. Id. at 1570 n. 30.The District Court stated:
The City argues that plaintiffs' fifth amendment claim must fail because they have not shown that their property was taken for a ‘public use.’ However, the United States Supreme Court has defined ‘public use’ broadly. See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 ... (1984). In Midkiff, the Court stated that ‘[t]he ‘public use’ requirement is ... coterminous with the scope of a sovereign's police powers,'id., and that the proper test is whether the ‘exercise of the eminent domain power is rationally related to a conceivable public purpose,’id. at 241... In rejecting the argument that the government must use or possess the condemned property, the Court stated that ‘it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.’Id. at 244... Similarly, under the Midkiff analysis, the fact that the City does not actually use or possess the property taken from the homeless does not mean that there is no ‘public use,’ and therefore no taking under the fifth amendment.
Although the evidence does substantiate plaintiffs' claim that there have been ‘takings' of class members' property, the more difficult question in this case is how plaintiffs may be ‘justly compensated.’ The Supreme Court has defined ‘just compensation’ as placing the property owner in the same position monetarily as he would have been if his property had not been taken. United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 25 L.Ed.2d 12 ... (1970). The court is unable to address this issue based on the evidence presented. Consequently, the issue of ‘just compensation’ will have to be the subject of a separate evidentiary hearing.
Id.
In Wong v. City and County of Honolulu, 333 F.Supp.2d 942 (D.Hawai'i 2004), the District Court addressed qualified immunity from liability under Section 1983 based on the seizure and destruction of derelict vehicles pursuant to statutes that did not provide for notice and an opportunity to be heard

prior to the destruction, thereby violating Plaintiff's rights under the Fourth Amendment, the Fourteenth Amendment Due Process Clause, and the Fifth Amendment's Takings Clause. With regard to the Fifth Amendment takings claim, the District Court held:
Plaintiff alleges that the removal and destruction of the motorcycles from the area around his shop represented an unlawful taking without just compensation, in violation of the Fifth Amendment. However, ‘it was recognized [long ago] that “all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community,” and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.’ Keystone Bituminous Coal Assn' v. DeBenedictis, 480 U.S. 470, 491-92, 107 S.Ct. 1232, 94 L.Ed.2d 472 ... (1987)...; see also Miller v. Schoene, 276 U.S. 272, 279-80, 48 S.Ct. 246, 72 L.Ed. 568 ... (1928) (noting that ‘where the public interest is involved[,] preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property’).
*10 Although removal and immediate disposition under H.R.S. §§ 290-8 and 290-9 would be in substantial advancement of legitimate state interests, and cannot be considered a violation of the Takings Clause, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1022-24, 112 S.Ct. 2886, 120 L.Ed.2d 798 ... (1992), genuine issues of material fact exist as to whether the motorcycles were properly designated as derelict under H.R.S. § 290-8, and whether Defendant Penarosa acted arbitrarily and capriously by removing and destroying the motorcycles on May 1, 2001 after providing a disputed deadline of May 7 ... The Court is accordingly precluded from granting qualified immunity as to Plaintiff's Fifth Amendment Claim against Defendant Penarosa.
Id. at 955.
Neither Pottinger or Wong constitute persuasive authority that Plaintiffs are required by Graham v. Connor and Armendariz to plead and prove a Fifth

Amendment Takings Claim in lieu of a Fourteenth Amendment procedural due process claim. Williamson assumed that a taking had occurred and that just compensation was required. Armendariz did not involve a claim for violation of procedural due process but, rather, substantive due process, and did not involve facts similar to those before the Court. Other than the statements in Pottinger and Wong, no authority is cited or has been located holding that a plaintiff alleging that his or her personal property has been seized and destroyed by police action sweeps or clean ups is limited to a Fifth Amendments Takings Claim.
The City Defendants' contention that Plaintiffs' motion for summary judgment must be denied on the ground that they have not complied with the requirements of the Fifth Amendments Takings Clause is without merit.
Plaintiffs' motion for summary judgment on their of violation of the Fourteenth Amendment procedural due process claim is DENIED because issues of fact exist as to the fact and adequacy of notice and the amount of any damages.
c. Equal Protection.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).“The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons ... We have attempted to reconcile the principle with reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
Plaintiffs assert that there is no dispute that the Clean-up policy and practice at issue applied only to homeless persons. Plaintiffs cite City of Cleburne,

supra:“[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.” 473 U.S. at 448. Plaintiffs assert that “[t]argeting homeless people without any permissible justification strongly indicates that ‘the decisionmaker ... selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group’ ”, citing Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Plaintiffs contend that the City's policy “requires summary destruction of homeless people's belongings, not because they are trash, or because it is necessary to keep the City clean, but because the City wanted the homeless to ‘move along.’ ”
*11 The City Defendants do not respond to the merits of Plaintiffs' equal protection claim. If Plaintiffs establish 22 facts at trial that homeless persons' personal property was immediately destroyed after seizure while the personal property of others who are not within the class was not, Plaintiffs will have established a violation of equal protection under the Fourteenth Amendment.
d. Policy or Practice.
A municipality cannot “be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Liability may attach to a municipality only where the municipality itself causes the constitutional violation through “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694;see also Pembaur v. City of Cincinnati, 475 U.S. 469, 479-480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (“The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make it clear that municipal liability is limited to action for which the municipality is actually responsible.”). As explained in Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.2005):
There are three ways to show a policy or custom of a municipality: (1) by showing ‘a longstanding

practice of custom which constitutes the “standard operating procedure” of the local government entity;’ (2) ‘by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;’ or (3) ‘by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.’
In moving for summary judgment, Plaintiffs refer to the December 8, 2007 Memorandum Decision granting preliminary injunction, pages 13-14, setting forth the City's policy. Plaintiffs contend that the facts set forth in the December 8, 2007 Memorandum Decision “have all now been confirmed” and that “the City does not-indeed cannot-dispute them.”
The City does not respond directly to this ground for summary judgment. However, in the City Defendants' opposition, it is argued that Plaintiffs confuse episodes of the City's authorized clean ups of areas involving the construction of temporary shelters with “isolated and unauthorized episodes of alleged misconduct” and that “[s]uch a distinction is of critical importance.”The City refers to evidence that it conducts litter removal on a daily basis, including accumulations of garbage in the area of temporary shelters; that the City's authorized clean up efforts are conditioned upon receipt of a citizen's complaint ro matters affecting the public's health and safety; and evidence that the City's authorized clean up efforts were preceded by written and oral notice of the impending clean up, as well as oral notice immediately preceding the clean up. The City contends that, during discovery, the City confirmed the dates and locations of authorized clean ups since early 2004, which total 14 dates. The City argues that these 14 dates are the entirety of clean up efforts that involved the collaborative efforts of the FPD and the CSD. The City contends: “Any episode involving the alleged harassment of the City's homeless, or the corresponding destruction of personal property, which fall outside these dates was not conduct undertaken pursuant to any City policy at issue in this case.”
*12 From this argument, the absence of any direct response to Plaintiffs' ground for summary judgment under Monell, and the City Defendants' concession at

the hearing, the City concede that the clean ups conducted on these 14 dates were conducted pursuant to recognized City policy and practice. However, whether the seizures and destruction of personal property on dates other than these 14 dates were pursuant to the City's official policy and practice present questions of fact for the jury to decide. The same is true with regard to the liability of the individual City Defendants.
2. State Law Claims.
a. California Civil Code § 2080; California Government Code § 815.6.
Plaintiffs move for summary judgment on the Seventh Claim for Relief.
California Civil Code § 2080 provides in pertinent part:
Any person who finds a thing lost is not bound to take charge of it, unless the person is otherwise required to do so by contract or law, but when the person does take charge of it he or she is thenceforward a depository for the owner, with the rights and obligations of a depository for hire. Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property ... shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property.
California Civil Code § 2080.1 provides: (a) If the owner is unknown or has not claimed the
property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city ... and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it ....
(b) The police department ... shall notify the owner, if his or her identity is reasonably ascertainable, that it possesses the property and where it may be claimed. The police department ... may require payment by the owner of a reasonable charge to

defray costs of storage and care of the property.
California Civil Code § 2080.2 provides that “[i]f the owner appears within 90 days, after receipt of the property by the police department ..., proves his ownership of the property, and pays all reasonable charges, the police department ... shall restore the property to him.”
Plaintiffs contend that, until the preliminary injunction was issued, the City Defendants made no effort to comply with these provisions. Plaintiffs cite California Government Code § 815.6:
Where a public entity is under a mandatory duty imposed by 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.
*13 Plaintiff assert that, because the City failed to discharge its statutory duties, the City is liable for the damage caused by the failure to store Plaintiffs' property after the clean ups.
The City opposes summary judgment on this claim, contending that Plaintiffs have not established that there is (1) a private right of action for violation of Section 2080; (2) that the individual Defendants took possession of Plaintiffs' property; or (3) that the individual Defendants knew the identities of the owners of the lost property.
A private right of action against the City of Fresno for violation of Section 2080 exists via California Government Code § 815.6. In Haggis v. City of Los Angeles, 22 Cal.4th 490, 499-500, 93 Cal.Rptr.2d 327, 993 P.2d 983 (2000), the California Supreme Court held:
We cannot agree with the City and amici curiae that liability under section 815.6 requires that the enactment establishing a mandatory duty itself manifest an intent to create a private right of action, for their position is directly contrary to the language and function of section 815.6. When an enactment establishes a mandatory governmental

duty and is designed to protect against the particular kind of injury the plaintiff suffered, section 815.6 provides that the public entity ‘is liable’ for an injury proximately caused by its negligent failure to discharge the duty. It is section 815.6, not the predicate enactment, that creates the private right of action.If the predicate enactment is of a type that supplies the elements of liability under section 815.6-if it places the public entity under an obligatory duty to act or refrain from acting, with the purpose of preventing the specific type of injury that occurred-then liability lies against the agency under section 815.6, regardless of whether private recovery liability would have been permitted, in the absence of section 815.6, under the predicate enactment alone.
There remains an issue of the applicability of Section 2080 to Plaintiffs' claims in this action. It is questionable that Plaintiffs' personal property that was seized and destroyed could have been considered lost or saved by someone. The scope of this statute is also of concern because of the possibility of imposing liability under these statutes could make the City legally responsible to keep every item left on the ground in Fresno, because of the possibility that it might be property of a homeless person who might want it back.
With these provisos and based on the facts established at trial, Plaintiffs are entitled to summary adjudication that Section 2080 imposes a private right of action against the City of Fresno for damages. Proof of what property was lost and its value remains in dispute.
b. Bane Act, California Civil Code § 52.1.
California Civil Code § 52.1(b) provides:
Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with [by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion], may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under section 52, injunctive relief, and other appropriate

equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.
*14 In Jones v. Kmart Corp., 17 Cal.4th 329, 334, 70 Cal.Rptr.2d 844, 949 P.2d 941 (1998), the California Supreme Court explained that “section 52.1 does require an attempted or completed act of interference with a legal right, accompanied by a form of coercion.”See also Venegas v. County of Los Angeles, 32 Cal.4th 820, 843, 11 Cal.Rptr.3d 692, 87 P.3d 1 (2004) (“the language of section 52.1 provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved.”). In Venegas, the California Supreme Court explained:
In Jones v. Kmart Corp...., we acknowledged that Civil Code section 52.1 was adopted ‘to stem a tide of hate crimes.’But contrary to the County's position, our statement did not suggest that section 52.1 was limited to such crimes, or required plaintiffs to demonstrate that County or its officers had a discriminatory purpose in harassing them, that is, that they committed an actual hate crime. We continued in Jones by simply observing that the language of section 52.1 provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved.
Id. at 843, 11 Cal.Rptr.3d 692, 87 P.3d 1. “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” Austin B. v. Escondido Union School Dist., 149 Cal.App.4th 860, 883, 57 Cal.Rptr.3d 454 (2007).
Plaintiffs concede that the California Supreme Court has not defined the terms “threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion.”Plaintiffs refer to a decision by the Massachusetts Supreme Judicial Court, construing language in a statute that formed the model for the Bane Act:

[A] ‘threat’ consists of the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. ‘Intimidation’ involves putting in fear for the purpose of compelling or deterring conduct. ‘Coercion’ is the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.
Haufler v. Zotos, 446 Mass. 489, 845 N.E.2d 322, 335-336 (Mass.2006).
Plaintiffs refer to the evidence that FPD officers were present in uniform with weapons during the clean ups and to the law that citizens have a duty to obey police officers, see Mary M. v. City of Los Angeles, 54 Cal.3d 202, 206, 285 Cal.Rptr. 99, 814 P.2d 1341 (1991). Plaintiffs contend that the authority granted to government officials means that their actions are inherently coercive. See Cole v. Doe I thru 2 Officers of City of Emeryville, 387 F.Supp.2d 1084, 11031104 (N.D.Cal.2005) and cases cited therein (Cole allowed a Section 52.1 claim based on Cole's claim that he was coerced into consenting to a search of his vehicle when the officers made an unjustified traffic stop of his vehicle and threatened to keep him handcuffed).
*15 Plaintiffs refer to evidence that the police presence at the clean ups was intended to convince the homeless that they meant business and to get the homeless to do what the City wanted them to do, and to evidence threatening persons with going to jail. Plaintiffs argue that “[i]t was the Defendants' actions that forced them to do ‘something [they] would not otherwise have done,’i.e., to lose their property with no chance to recover it. Plaintiffs contend:
For purposes of the Bane Act, it does not matter whether it was the presence of a FPD and CSD workers and equipment, the implicit threat of arrest if anyone objected, or the economic coercion inherent in having all of their belongings destroyed that prompted Plaintiffs to give up their rights to preserve or to reclaim their property. Any of these alternatives constitutes a Bane Act violation.
The City Defendants argue that Plaintiffs are not entitled to summary judgment.
The City Defendants cite Cabesuela v. Browning-

Ferris Industries of California, Inc., 68 Cal.App.4th, 101, 110-111, 80 Cal.Rptr.2d 60 (1998).Cabesuela relied on Boccato v. City of Hermosa Beach, 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282 (1994), in ruling that Civil Code § 52.1 must be read in conjunction with Civil Code § 52.7 and that, in order to state a claim under Section 52.1, “there must be violence or intimidation by threat of violence [and] the violence or threatened violence must be due to plaintiff's membership in one of the specified classifications set forth in Civil Code § 51.7 or a group similarly protected by constitution or statute from hate crimes.” Id. at 111, 35 Cal.Rptr.2d 282.
However, because the California Supreme Court in Venegas, supra, 32 Cal.4th at 842, 11 Cal.Rptr.3d 692, 87 P.3d 1, expressly rejected Boccato, Cabesuela no longer correctly interprets Section 52.1's requirements. See Moreno v. Town of Los Gatos, 2008 WL 467777 (9th Cir.2008).
The City Defendants refer to evidence that each location at which a clean up was conducted involved the construction of temporary shelters on property owned by someone other that Plaintiffs; that each clean up was triggered by a citizen complaint regarding the temporary shelters; that affected individuals were given advance notice of the need to relocate themselves and their personal possessions; that, on the day of the clean up, individuals who remained on the site were advised to relocate off the property; that, when individuals requested time to remove their belongings, the request was granted even if it meant delaying the clean up; that Officer Wallace did not wear a police uniform to the clean ups; that no arrests were made; and that Plaintiffs were not threatened, coerced or intentionally intimidated at any of the clean ups. The City Defendants argue:
The gravamen of Plaintiffs' action is their assertion that the constitutional rights interfered with by Defendants was the right to be free from the unlawful seizure of personal property. In opposition to
Plaintiffs' motion, Defendants have raised substantial disputed issues of material fact regarding whether Defendants threatened or committed violent acts which interfered with Plaintiffs' right to possess property. Specifically, Defendants have presented

evidence that the conduct of the clean up efforts did not involve seizing property from individuals. Moreover, Defendants have submitted competent evidence that they never refused an individual's request at a clean up effort for an opportunity to remove or relocate their personal property. In fact, the evidence establishes that the only materials collected and discarded were unattended materials left at a clean up site. There is no evidence that any individual's purported absence from the clean up site (resulting in the alleged loss of personal property) was the result of any threatening or violent act by Defendants.
*16 Plaintiffs' motion for summary judgment on this claim for relief is DENIED. Issues of fact exist which preclude summary judgment concerning the use of force or intimidation by each of the individual City Defendants during the sweeps or clean ups. In addition, to the extent that Plaintiffs' claim is based on the removal and destruction of personal property unattended by its owner, there is a question that the Bane Act applies by its terms, i.e., if the owner of the personal property was not present during the seizure and destruction of the property, could that owner have been coerced or intimidated from doing something he or she was entitled to do?
c. Conversion.
Plaintiffs move for summary judgment on their claim for conversion.
As explained in Burlesci v. Petersen, 68 Cal.App.4th 1062, 1066, 80 Cal.Rptr.2d 704 (1998):
Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation for the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.
The City Defendants oppose summary judgment on

this claim.
First, they argue that there is no evidence to support that Defendants Dyer, Garner, Rogers or Weathers ever touched a single piece of property owned or possessed by the Plaintiffs.
Plaintiffs reply that this is immaterial to liability. Plaintiffs cite Gruber v. Pacific States Savings & Loan Co., 13 Cal.2d 144, 148, 88 P.2d 137 (1939):
Nor do we think that a manual taking or destruction is essential to a conversion. In 2 Tiffany, Landlord and Tenant, page 1673, the following appears: ‘The landlord is, it has been held, guilty of conversion if he refuses to allow the tenant to remove his goods during the tenancy, or at a subsequent time when the latter has a legal right to do so ....‘
Plaintiffs also cite Tide Water Associated Oil Co. v. Superior Court, 43 Cal.2d 815, 827, 279 P.2d 35 (1955) (“It is settled that where there is a common plan or design to commit a tort, all who participate are jointly liable whether or not they do the wrongful acts.”).
The City Defendants further oppose summary judgment on Plaintiffs' conversion claim on the ground that there is no evidence that Plaintiffs Randy Johnson, Sandra Thompson, Alfonzo Williams or Jeannine Nelson filed tort claims with the City.
This contention is without merit. A consolidated claim was submitted on behalf of these named plaintiffs on December 12, 2006. See PUDF 218.
The City Defendants oppose summary judgment on Plaintiffs' conversion claim on the ground that Plaintiffs' various tort claims fail to identify either Defendants Wallace or Rogers as City employees responsible for any injury or loss purportedly sustained.
*17 California Government Code § 945.4 provides in pertinent part:
[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with

Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.
Section 950.2 provides in pertinent part: [A] cause of action against a public employee or
former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred under Part I (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.
Section 910 sets forth the contents of a claim and provides in pertinent part: A claim shall be presented by claimant or a person
acting on his or her behalf and shall show all of the following:
(a) The name and post office address of the claimant.
(b) The post office address to which the person presenting the claim desires notices to be sent.
(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount

claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.
Section 915(a) provides that a claim against a local public entity shall be presented to the local public entity by delivering it or mailing it “to the clerk, secretary or auditor thereof”.
The failure to comply with state imposed procedural conditions to sue bars the maintenance of a cause of action based upon those pendant State claims. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1243, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004) (“[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.”). In City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974), the California Supreme Court explained:
*18 It is not the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation ... It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge-standing alone-constitutes neither substantial compliance nor basis for estoppel....
The Supreme Court further held that in determining a contention that there has been substantial compliance with the claim filing requirements of the California Government Tort Claims Act, “two tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance.” Id. at 456-457, 115 Cal.Rptr. 797, 525 P.2d 701. Loehr v. Ventura County Community College Dist., 147 Cal.App.3d 1071, 195 Cal.Rptr. 576. 1083 (1983), holds: Under [the test of substantial compliance], the court
must ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an

adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.’
As Plaintiffs contend, the tort claims filed in connection with this action “which listed the individual defendants, at least as witnesses, gave more than enough information to allow the City to investigate, and therefore satisfied any requirement.”
The claim filing requirement is satisfied.
However, as the City Defendants contend, summary judgment as to the individual defendants is not appropriate because issues of fact exist regarding their statutory immunities.
3. Injunctive Relief and Declaratory Relief.
Plaintiffs' motion for summary judgment granting permanent injunctive and declaratory relief is DENIED. Whether those remedies are available and necessary cannot be determined until after trial.
CONCLUSION
For the reasons stated above:
A. Plaintiffs' motion for summary judgment as to liability against the City Defendants is GRANTED IN PART AND DENIED IN PART:
1. Plaintiffs' motion is GRANTED as to Defendant the City of Fresno to the extent that the clean-ups conducted on the 14 dates set forth at pages 6-7 of this Memorandum Decision were conducted pursuant to the unlawful policy of the City of Fresno;
2. Plaintiffs' motion is GRANTED as to Defendant the City of Fresno to the extent that, if Plaintiffs' establish at trial that the City Defendants seized and immediately destroyed the personal property of Plaintiffs, Plaintiffs will have established a violation of the Fourth Amendment as a matter of law;
3. Plaintiffs' motion is GRANTED as to Defendant the City of Fresno to the extent that, if Plaintiffs establish at trial that homeless persons' personal property was immediately destroyed after seizure

while the personal property of others who are not within the class was not, Plaintiffs will have established a violation of equal protection under the Fourteenth Amendment;
*19 4. Plaintiffs' motion is GRANTED as to Defendant the City of Fresno to the extent that California Civil Code § 2080.2 imposes a private right of action against Defendant City of Fresno;
5. In all other respects, Plaintiffs' motion is DENIED.
B. Counsel for Plaintiffs shall prepare and lodge a form of order that the rulings set forth in this Memorandum Decision within five (5) days following the date of service of this decision.
IT IS SO ORDERED.
E.D.Cal.,2008. Kincaid v. City of Fresno Not Reported in F.Supp.2d, 2008 WL 2038390 (E.D.Cal.)
END OF DOCUMENT

 
 United States District Court, E.D. California.
Pamela KINCAID, etc., et al., Plaintiffs, v.
CITY OF FRESNO, et al., Defendants. No. 1:06-cv-01445-OWW-SMS.

March 19, 2008.

Michael Temple Risher, American Civil Liberties Union of Northern California, San Francisco, CA, Paul Alexander, Heller Ehrman LLP, Menlo Park, CA, for Plaintiffs.

James B. Betts, Betts & Wright, Fresno, CA, Navtej Singh Bassi, California Department of Transportation, Sacramento, CA, for Defendants.

ORDER RE: DEFENDANTS WILL KEMPTON, JAMES PROVINCE, AND DARYL GLENNS'
MOTION TO EXCLUDE PLAINTIFFS' EXPERT TESTIMONY AND OTHER EVIDENCE, OR, IN THE ALTERNATIVE TO COMPEL PRODUCTION OF EXPERTS' REPORTS AND FOR MONETARY
SANCTIONS (Doc. 173)

SANDRA M. SNYDER, United States Magistrate Judge.

*1 Caltrans Defendants Will Kempton, James Province, and Daryl Glenn (“Caltrans”) filed their motion to exclude Plaintiffs' expert testimony and other evidence, or, in the alternative to compel production of experts' reports and for monetary sanctions on February 15, 2008 (Doc. 173). Thereafter, on March 11, 2008, the parties

DATE 10/17/06

DOCS 1

10/17-24/06

3-34

10/24/06-11/22/06

34-80

1/12/07 2/7/07

96-98 99

2/22/07

108

3/1/07 & 3/7/07

112, 117

filed their joint statement pursuant to Local Rule 251. Defendants City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, John Rogers, Reynaud Wallace, and Phillip Weathers (“City”) filed a supplement(s) to the joint statement on March 13, 2008 (Doc. 230 & 231).
The Court has read and considered the original noticed motion, together with its declarations and exhibits, as well as the joint statement and supplement(s) to that statement. The Court requires no hearing nor any further argument and hereby rules summarily.
It is unfortunate that this Court apparently failed to adequately communicate its patterns and practices with regard to discovery disputes of the nature focused upon in the herein motion. Since this Court held at least four (4) prior informal telephonic conferences with all counsel concerning deposition scheduling and the alleged tardiness of one party's response to outstanding discovery, it was this Court's belief that all parties understood the philosophy behind holding informal telephonic conferences prior to spending possibly/ probably unnecessary time, energy, and money putting together pleadings for issues that could be resolved much more expeditiously. Nonetheless, the pleadings are before the Court, so deal with them we shall.
The Court is aware of the scheduling order of March 7, 2007 (Doc. 117), as well as Judge Wanger's sincere desire to hold to the schedule as set forth therein to the extent possible given the ongoing exigency of the subject matter and position of all the parties in this lawsuit. That said, things happen. And, a review of the docket of this case reveals more than the pleadings:
EVENT/FILING Complaint for Declaratory/Injunctive Relief Parties focusing on Temporary Restraining Order Parties focusing on Preliminary Injunction Defendants file Motion to Dismiss Plaintiffs file First Amended Complaint Plaintiffs file Second Amended Complaint Scheduling Conference/Order Re:

3/1-30/07

3/30/07-4/12/07 6/15/07-9/28/07
12/05/07 12/6-19/07

126-128 131-159
164 166-170

2/15/08 2/28/08

173-179 182-228

*2 This case is time sensitive, and all parties appear to have been extremely busy on several fronts since the lawsuit was filed some seventeen (17) months ago. Obviously discovery has to have been ongoing while motion practice has been taking place in the district court. And, to the best of everyones' ability, it would appear, compliance with Judge Wanger's scheduling order has been attempted. Plaintiffs did disclose their experts on the date required of October 1, 2007. As set forth in the Joint Statement (“JS”), the reports mandated by FRCP 26 were not forthcoming as Plaintiffs were waiting for the documents that were the subject of the telephonic discovery dispute conferences held with this Court in

Scheduling
[Parties obviously busy during this period of time, quieting the pleadings, stipulating for extensions of time to answer second amended complaint, preparing position papers for motion to dismiss, scheduling case ]
Setting of, preparing for, and participating in a Settlement Conference with Judge Wanger
Parties focusing on Plaintiffs' Motion to Certify Class; hearing held on 7/30/07; Class Administration Hearing held on 9/17/07; notice to all Plaintiffs on 9/28/07
First discovery dispute of any significance comes to the attention of this Court
Series of telephonic discovery dispute conferences focusing on City's alleged failure to produce documents and attend depositions. Note: Attorney Betts was in trial in another matter before Judge Wanger, so conferences had to be rescheduled.
The subject Motion To Compel filed
Motion for Summary Judgment filed and thereafter listings of filings from all parties re: Summary Judgment
December, 2007. Caltrans argues “[b]y [Plaintiffs'] own admission, the reason for not producing the required reports (an alleged but unidentified discovery dispute with the City Defendants) had absolutely nothing to do with any alleged act or admission by the Caltrans Defendants.” (JS p. 4) While that may be, it makes little sense to require or expect an expert to prepare partial reports or a report regarding evidence as to one defendant, only to be amended then probably amended yet further, inviting other forms of discovery disputes having to do with “moving target opinions” by experts, etc. However, the Court does agree with Caltrans counsel that it was wholly inappropriate for Plaintiffs' counsel to “ignore” Caltrans communications of December 19, 2007 and January 3,

2008 regarding discovery issues. (Motion p. 7 and Exhibits 4 & 5)
What, in the final analysis, is the prejudice? Plaintiffs opine they have offered “a practical and effective resolution to the issues raised by Caltrans' motion ...” (JS p. 5) And, they argue the City Defendants are agreeable to the resolution. In fact, the City “elected not to submit any contentions as to this motion or the disputes therein.”(JS p. 7) Unless or until Caltrans submits that, for example, responding to the motion(s) for summary judgment is made difficult due to lack of experts' reports, the Court sees no real problem or prejudice with the resolution proposed by Plaintiffs, to wit, the production of Ms. Liza Apper's report on or before April 4, 2008, and to make Ms. Apper available for deposition on or before May 2, 2008. Plaintiffs have withdrawn their second expert, Professor Snow.
Sanctions
Caltrans argues they should not have been put to the necessity of filing a motion. Agreed, they should not have been. Yet, both parties taking positions regarding this motion are to blame: Plaintiffs' counsel should have been more forthcoming with responses to the letters mentioned above and the concern discussed during the discovery dispute conferences with the Court regarding how all remaining discovery was going to be completed in time for the discovery cutoff deadline of January 31, 2008. But, Caltrans counsel should have put together a telephonic discovery dispute conference, and this matter would have been resolved earlier and probably with other discovery matters worked out as well. Again, that is the habit and custom of this Court, as well as the other Magistrate Judges of the Fresno Division of the Eastern District. Therefore, the Court will not award sanctions at this juncture.
Conclusion
*3 Caltran's motion to compel production is GRANTED pursuant to Plaintiffs' proposal:
1. Plaintiffs shall provide an expert report from Liza Apper on or before April 4, 2008;
2. Plaintiffs shall make Ms. Apper available for deposition on or before May 2, 2008; and,

3. Defendants' request for sanctions is DENIED.
IT IS SO ORDERED.
E.D.Cal.,2008. Kincaid v. City of Fresno Slip Copy, 2008 WL 752668 (E.D.Cal.)
END OF DOCUMENT

 
 Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 1 of 18

1 HELLER EHRMAN LLP
2 PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road Menlo Park, CA 94025-3506
3 Telephone: (650) 324-7000 FacsImile: (650) 324-0638
4 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS' COMMITTEE FOR CIVIL RIGHTS
OREN SELLSTROM (SBN: 161074) 6 ELISA DELLA-PlANA (SBN: 226462)
7 131 Steuart Street, Suite 400 San Francisco, CA 94105
8 Tele.rhone: (415) 543-9444 FacsImile: (415) 543-0296
9 E-mail: osellstrom@lccr.com

10 ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER (SBN:49957)
11 MICHAEL T. RISHER (SBN:191627) 39 Drumm Street San Francisco, CA 94111
12 Tele.rhone : (415) 621-2493
FacsImile: (415) 255-8437
13 E-mail: mrisher@aclunc.org

14

UNITED STATES DISTRICT COURT
15

16

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

17

18 Pamela Kincaid, Doug Deatherage, Charlene

Clay, Cynthia Greene, Joanna Garcia, and

Randy Johnson, Individually on Behalf of

19 Themselves and All Others Similarly Situated,

20

Plaintiffs,

21

v.

22

City of Fresno, California Department of Transportation, Alan Autry, Jerry Dyer, Greg

23

Gamer, Reynaud Wallace, John Ro~ers, Phillip Weathers, and Will Kempton, indivIdually and

24

in their official capacities; DOES 1-100, inclusive,

25

Defendants.

26

Civil Action No.:
CLASS ACTION
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
DEMAND FOR JURY TRIAL

27

Heller

28

Ehrman LLP

Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 2 of 18

1

Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna

2 Garcia, and Randy Johnson, individually on behalf of themselves and others similarly

3 situated, complain against defendants as follows:

4

Nature of the Case

5

1. This action arises out of an ongoing policy and practice of defendant City of

6 Fresno, joined in by the remaining defendants, of confiscating and destroying the property

7 of homeless people who live in Fresno. Defendants' unlawful actions deprive plaintiffs and

8 similarly situated homeless people of personal belongings that are critical to their survival,

9 such as clothing, medication, tents and blankets, as well as of irreplaceable personal

10 possessions, such as family photographs, personal records and documents, and even the

11 ashes of a deceased relative contained in an urn.

12

2. As alleged with more particularity below, defendants regularly engage in what

13 amount to raids of areas where homeless people live, during which defendants intentionally

14 and indiscriminately take and destroy personal property owned by homeless people in the

15 area and immediately destroy that property.

16

3. These ongoing raids are conducted either without notice or with inadequate

17 notice and in a manner that prevents plaintiffs and other homeless persons similarly situated

18 from retrieving their personal property to avoid its destruction. In many cases, members of

19 the plaintiff Class are physically restrained or ordered by members of the Fresno Police

20 Department to stand by while their few personal possessions are seized and destroyed,

21 leaving them even more destitute and defenseless. Further, as a part of this policy and

22 practice, defendants provide no means for plaintiffs or other similarly situated homeless

23 people to claim or retrieve their personal possessions once seized. Rather, all property is

24 immediately and summarily destroyed, so that it is lost forever.

25

4. Plaintiffs, on their own behalf and on behalf of all similarly situated persons

26 in the City of Fresno, California, claim that the intentional taking and destruction of their

27 personal property constitutes a violation by defendants of plaintiffs' federal and state

Heller 28 constitutional rights to be free from unreasonable search and seizure and to due process of
Ehrman LLP

2

Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 3 of 18

1 law, a violation of plaintiffs' rights under California Civil Code § 2080, et seq. and Civil

2 Code §§ 52 and 52.1, as well as additional state law claims complained of herein. Plaintiffs

3 seek preliminary and permanent injunctive relief on behalf of themselves and other

4 homeless persons similarly situated enjoining defendants from taking and destroying their

5 personal property in violation of their constitutional, statutory and common law rights.

6

5. Plaintiffs further seek a declaratory judgment that the policies and practices of

7 defendants as alleged herein are unlawful under the federal and state constitutional

8 provisions and statutory rights complained of herein.

9

6. In addition to their primary claims on behalf of the class for injunctive and

10 declaratory relief, the plaintiffs seek statutory, actual and punitive damages resulting from

11 defendants' intentional destruction of their personal property in violation of plaintiffs'

12 constitutional rights, under the United States and California Constitutions, and under

13 California Government Code § 815.6, California Civil Code § 2080 et seq., California Civil

14 Code §§ 52 and 52.1, and the common law doctrine of conversion.

15 Jurisdiction and Venue
16

17

7. This Court has jurisdiction based on 28 U.S.C. § 1331and 1343, and

18 supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

19

8. Venue is proper in this District in that the events and conduct arise to the

20 violations complained of occurred in this District. In addition, the defendants performed

21 their duties and committed the conduct complained of herein within this District.

22 Parties
23

24

9. Plaintiff Pamela Kincaid is a resident of the City of Fresno and at all relevant

25 times herein was and now is homeless.

26

10. Plaintiff Doug Deatherage is a resident of the City of Fresno and at all

27 relevant times herein was and now is homeless.

Heller

28

Ehrman LLP

3

Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 4 of 18

1

11. Plaintiff Charlene Clay is a resident of the City of Fresno and at all relevant

2 times herein was and now is homeless.

3

12. Plaintiff Cynthia Greene is a resident of the City of Fresno and at all relevant

4 times herein was and now is homeless.

5

13. Plaintiff Joanna Garcia is a resident of the City of Fresno and at all relevant

6 times herein was and now is homeless.

7

14. Plaintiff Randy Johnson is a resident of the City of Fresno and at all relevant

8 times herein was and now is homeless.

9

15. Defendant City of Fresno ("Fresno") is a municipal corporation, duly

10 organized and existing under the laws of the State of California.

11

16. Defendant California Department of Transportation (Caltrans) is an agency

12 of the State of California, duly organized and existing in the laws of the state of California.

13

17. Defendant Alan Autry is the Mayor of the City of Fresno and has either

14 directed or ratified the unlawful conduct alleged herein.

15

18. Defendant Jerry Dyer is Chief of the Fresno Police Department, and in that

16 capacity is responsible for the operations of the Police Department.

17

19. Defendant Greg Gamer is a Captain of the Fresno Police Department and has

18 personally directed and taken part in the unlawful practices and polices alleged in this

19 complaint.

20

20. Defendant Will Kempton is the Director ofCaltrans, and in that capacity is

21 responsible for the enforcement, operation and execution of all duties vested by law in that

22 agency.

23

21. Defendant Reynaud Wallace is an officer of the Fresno Police Department

24 and has personally directed and taken part in the unlawful practices and policies alleged in

25 this complaint.

26

22. Defendant John Rogers is the Manager of the Community Sanitation

27 Division of the City of Fresno and in that capacity is responsible for the operations of the

Heller 28 Community Sanitation Division.
Ehrman LLP

4

Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 5 of 18

1

23. Defendant Phillip Weathers is an employee of the Community Sanitation

2 Division of the City of Fresno and has personally directed and taken part in the unlawful

3 practices and policies alleged in this complaint.

4

24. All of the above individual defendants are sued in their individual and

5 official capacities.

6

25. Plaintiffs are informed and believe that DOES 1 through 50 at all relevant

7 times herein were officers and employees of the City of Fresno, including the Fresno Police

8 Department and the Community Sanitation Division of the City of Fresno, and that DOES

9 51 through 100 were officers and employees of Caltrans. Plaintiffs are ignorant of the true

10 names and capacities of defendants sued herein as DOES 1 through 100 and therefore sue

11 said defendants by such fictitious names. Plaintiffs will amend this complaint to allege their

12 true names and capacities when ascertained. Plaintiffs are informed and believe that each of

13 the DOE defendants is liable for, and proximately caused, the injuries and violations of

14 constitutional and statutory rights complained of herein. Plaintiffs will ask leave to amend

15 this complaint to insert further charging allegations when such facts are ascertained.

16

26. Plaintiffs are informed and believe that the acts of defendants complained of

17 herein were undertaken in the execution of customs, policies and practices of authorized

18 policymakers of the defendant City of Fresno and were joined in and/or implemented by the

19 remaining defendants, and each of them, acting as the agent, servant, employee and/or in

20 concert, and/or in conspiracy with each of said other defendants. Each of the defendants

21 caused, and is liable for, the unconstitutional and unlawful conduct and resulting injuries by,

22 among other things, personally participating in said conduct or acting jointly or conspiring

23 with others who did so; by authorizing, acquiescing or setting in motion policies, plans and

24 actions that led to the unlawful conduct; by failing to take action to prevent the unlawful

25 conduct; by failing and refusing with deliberate indifference to maintain adequate training

26 and supervision; and by ratifying the unlawful conduct taken by employees under their

27 direction and control, including failing to take remedial and disciplinary action.

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28

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1

27. The acts complained of herein were intentionally and jointly committed, and

2 will continue to be committed jointly and systematically by defendants unless restrained by

3 this Court.

4 Class Allegations
5

6

28. The claims set forth hereinafter are brought by plaintiffs on their own behalf

7 and as representatives of a Class of similarly situated persons pursuant to Rules 23(a),

8 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of all homeless

9 persons in the City of Fresno whose personal belongings have been or will be taken and

10 destroyed by one or more of the defendants.

11

29. The members of the Class are so numerous that individual joinder of all

12 members is impossible. Plaintiffs are informed and believe on that basis allege that the

13 members of the Class well exceed 100 in number.

14

30. There are common questions of law and fact that predominate over any

15 questions affecting only individual Class members. Among the common questions of law

16 and fact are the following:

17

a. Whether defendants' policies, practices and conduct of taking and

18 destroying the personal property of homeless people, without providing either adequate

19 notice or the opportunity to retrieve personal possessions before they are destroyed, and

20 without a legitimate governmental interest, violated and continues to violate the class

21 members' state and federal constitutional rights against unreasonable search and seizure;

22

b. Whether defendants' policies, practices and conduct of taking and

23 destroying the personal property of homeless people, without providing either adequate

24 notice or the opportunity to retrieve personal possessions before they are destroyed, violated

25 and continues to violate the class members' due process rights under the California and

26 United States Constitutions;

27

c. Whether defendants' conduct of taking and destroying the personal

Heller 28 property of homeless people, without providing either adequate notice or the opportunity to
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1 retrieve personal possessions before they were destroyed, and without a reasonable basis or

2 legitimate governmental interest, violated and continues to violate class members rights

3 under California Civil Code §§ 52 and 52.1, Civil Code § 2080, California Government

4 Code § 815.6 and the common law tort of conversion; and

5

d. Whether injunctive relief restraining further unconstitutional and unlawful

6 acts by defendants should be ordered by the Court and, if so, the nature of that injunctive

7 relief.

8

31. Plaintiffs will fairly and adequately protect the interests of the Class. They

9 have retained counsel who are experienced and competent in class-action and civil rights

10 litigation. Plaintiffs have no interests that are adverse or antagonistic to interests of other

11 members of the Class.

12

32. A class action is superior to any other method in order to secure a fair and

13 efficient adjudication of this controversy. As the primary relief sought is injunctive in

14 nature, the burden and expense make in impractical for class members to seek redress

15 individually for the wrongs done to them. The nature and amount of monetary damages

16 sustained by each Class member is very similar in nature and may be established by

17 common proof. Individual litigation by each class member would necessarily and

18 substantially burden the operation of the judicial system.

19

Factual Allegations

20

33. Between 4,400 to 8,800 of Fresno's approximately 440,000 residents are

21 homeless, according to a recent report by a consortium of local government agencies and

22 providers. (Fresno Madera Continuum of Care Plan To End Homelessness at 10-11,

23 attached as Exhibit A hereto.) However, services for low-income people in need of shelter

24 are extremely scarce. "[O]nly 1.4% of the homeless population [is] sheltered ... leaving

25 more than 98% of the homeless population unsheltered and receiving no services." (Id. at

26 l3.) The report indicates that there is currently an "overwhelming need for homeless

27 assistances," with a gap of approximately 7,000 shelterlhousing spaces in the Fresno-

Heller 28 Madera area. (Id.) The lack of shelter for women is particularly acute. Naomi House, one
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1 of the few shelters in Fresno for women, has capacity for only 25 women on any given

2 night. On information and belief, a lottery is held every day to choose which women will

3 be allowed to stay in the shelter on that night. Those who are not successful in this lottery

4 are turned away, and often end up staying on the streets nearby.

5

34. For more than a year, defendants have engaged in an ongoing and continuing

6 policy and practice of raids on those Fresno residents who are unsheltered, in which they

7 take and destroy the personal property of these individuals. Defendants have intensified this

8 ongoing practice since May, 2006. No legitimate or lawful basis exists for this wholesale

9 confiscation and destruction of the personal property of plaintiffs and the plaintiff Class.

10 None of these actions were authorized by a warrant. In many cases, the property the

11 defendants have taken and destroyed represents substantially all the possessions of these

12 homeless men and women.

13

35. On or about May 3, 2006, defendants raided several areas in Fresno where

14 they knew a significant number of plaintiffs and members of the plaintiff Class resided,

15 including an area on the west side of E Street near Santa Clara Avenue, abutting Highway

16 99. On information and belief, this area is owned and controlled by defendant Caltrans. In

17 this raid, Fresno employees used a bulldozer to destroy and dispose of all the personal

18 property of plaintiffs in their path. Plaintiffs had no adequate notice that defendants would

19 destroy their property. Defendants made no attempt to save items that belonged to people,

20 and in fact restrained efforts by homeless people to retrieve their personal property in order

21 to prevent it from being taken and destroyed. Nor did defendants make any provisions for

22 people to claim their property after it had been seized. Rather all plaintiffs' property that

23 was seized was summarily destroyed.

24

36. On or about May 25,2006, defendants returned to conduct a further raid on

25 areas that had previously been raided, including the area of E Street abutting Highway 99.

26 Acting at the direction of and pursuant to the policy of the City of Fresno, City of Fresno

27 employees systematically took and destroyed all of the personal property of plaintiffs and

Heller 28 members of the plaintiff Class that they could find. Using a large bulldozer with a
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1 mechanical "grabber" on the front, defendants dumped all of the personal property of

2 members of the plaintiff Class into a waiting garbage truck for immediate destruction, even

3 though it was obvious that much of what they were taking and destroying was personal

4 property owned by members of the plaintiff Class.

5

37. On or about June 22,2006, defendants again confiscated and destroyed the

6 personal property of members of the plaintiff Class. In this raid, defendants seized and

7 destroyed property not only on the west side ofE Street near Santa Clara Avenue, but also

8 in adjacent areas. As with the previous raids, representatives of the Fresno Police

9 Department acting at the direction and pursuant to the policy of the City of Fresno,

10 prevented homeless people, including members of the plaintiff Class, from retrieving their

11 personal possessions and made no attempts to save personal belongings from destruction or

12 to store them so that they could be claimed later by their owners. The week before this raid,

13 on or about June 15, 2006, the Fresno Police Department issued a memorandum addressed

14 to "All Campers on Ventura/E" stating that "On Thursday, June 22,2006 we will be coming

15 through this area to do a clean up of Ventura, "E", Santa Clara & "G." streets. We will start

16 at 8:00 a.m. If you have property in these areas, please remove it or we will take it as

17 trash." This notice was inadequate to provide meaningful and effective notice to those who

18 would be affected by defendants' unlawful conduct, both because of the manner in which it

19 was given and because defendants knew or should have known that many members of the

20 plaintiff Class would not receive the notice or understand that their personal possessions

21 were going to be taken and destroyed by defendants. Moreover, the defendants began their

22 systematic destruction of the personal property of plaintiffs and the plaintiff Class before

23 8:00 a.m., making the notice further inadequate and misleading. Defendants also continued

24 with their policy of destroying property even while it was being claimed by the owners.

25

38. On or about July 1, 2006,defendants continued their unlawful seizures of the

26 property of plaintiffs and members of the plaintiff class. Early in the morning on July 1,

27 2006, members of the Fresno Police Department, complete with squad cars, a paddy wagon,

Heller 28 and a flatbed truck arrived near the intersection ofE Street and Santa Clara Avenue and
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1 began seizing property in multiple areas in the vicinity. Fresno Police Department

2 representatives unlawfully and without cause or basis confiscated shopping carts that were

3 the property of the homeless, including members of the plaintiff Class, loaded the carts onto

4 the flatbed truck and hauled them away and disposed of them. At no time did defendants,

5 or any of them, make an effort to determine the ownership of the carts or their contents, or

6 to allow plaintiffs or members of the plaintiffs' Class to make a claim for the return of their

7 personal possessions.

8

39. On or about August 26,2006, defendants again returned to the area near E

9 Street and Santa Clara Avenue in Fresno and repeated the systematic confiscation of the

10 property of plaintiffs and members of the plaintiff Class. City of Fresno employees again

11 systematically confiscated all of the personal property of plaintiffs and/or members of

12 plaintiff Class that they could locate and again threw it into City of Fresno garbage trucks

13 for destruction. Defendant made no attempt to save valuable personal possessions but

14 rather again seized and immediately destroyed all of the property of plaintiffs and/or

15 members of the plaintiff Class. Defendants again continued their practice of destroying all

16 the property they found regardless of the fact that it was being claimed by its owners.

17 Defendants again made no provision of any kind to allow plaintiffs and/or members of the

18 plaintiff Class to claim or retrieve their property.

19

40. Early in the morning on or about October 8,2006, members of the Fresno

20 Police Department came to an area near H Street and San Benito where plaintiffs and/or

21 members of the plaintiff Class were found. The Fresno Police Officers, without cause or

22 basis, confiscated all of the shopping carts possessed by plaintiffs and members of the

23 plaintiff Class and took them away for destruction. The Fresno Police Officers dumped all

24 the contents of all the shopping carts onto the ground resulting in damage to that property.

25 Plaintiffs' shopping carts were not stolen and no legal basis existed to confiscate them. No

26 provision was made for plaintiffs or members of the plaintiff Class to retrieve their carts,

27 which are essential to their ability to move their property from one place to another.

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1

41. Early in the morning on or about October 11, 2006, members of the Fresno

2 Police Department returned to the area near H Street and San Benito Street in the City of

3 Fresno where several homeless people were found. These Police Officers forced all of the

4 homeless in this area to get out of their tents and to stand in lines while they were searched,

5 despite the fact that there was no basis for this search and treatment. A Fresno Police

6 Officer then stated to all present that they intended to return very soon to again take and

7 destroy any property of the homeless found in that area and that the Police and other

8 defendants would "do what I have to do to get you guys out of here."

9

42. On information and belief, plaintiffs alleged defendant Caltrans and

10 defendant Kempton and other unidentified Caltrans agents and employees were aware that

11 the City of Fresno and other defendants were carrying out the raids alleged above and were

12 involved in planning, carrying out, facilitating and approving these actions.

13

43. Plaintiffs and members of the plaintiff Class have suffered the loss of

14 property, damage and treatment described in the foregoing paragraphs on one or more

15 occasions set forth above.

16

44. Plaintiff Pamela Kincaid's personal property has been confiscated and

17 destroyed by Defendants on at least two occasions. Approximately one year ago, almost all

18 of her possessions were seized and destroyed in one of defendants' raids, including her

19 identification; her birth certificate; her telephone/address book; and family photos, which

20 contained the only pictures she had of her sister, her daughter, and her deceased mother.

21 Approximately 2 months ago, defendants seized her shopping cart, a toolbox, and various

22 tools that she used to make crafts, such as jewelry and "dreamcatchers," which she was able

23 to sell to make a little income. This property was not abandoned and it was obviously

24 valuable property. She was given no opportunity to save or retrieve her property.

25

45. Plaintiff Doug Deatherage's personal property has been confiscated and

26 destroyed by Defendants on at least two occasions. On or around June 22, 2006, he and his

27 girlfriend had a tent on a strip ofland between E Street and the highway in Fresno.

Heller 28 Defendants arrived and began putting items in a dump truck, so plaintiff Deatherage moved
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1 his and his girlfriend's belongings to the other side of the street. Believing that his property

2 would be safe there because a police officer had told them it was okay to move their

3 belongings to that side of the street, plaintiff Deatherage left his girlfriend with their

4 belongings and went to the store. When he returned, their property had been confiscated,

5 and all attempts to move it again or save it had been summarily denied by the Fresno police.

6 In this raid, most of plaintiff Deatherage's property was destroyed, including his tent; his

7 sleeping bag; all the clothes except the ones he was wearing at the time; shoes; a coat;

8 personal hygiene supplies; an antique stamp collection; and personal papers, including

9 letters from his family. On or about August 26,2006, defendants confiscated and destroyed

10 nearly all of his remaining possessions in the same area, including clothes and shoes that he

11 had been able to acquire since the previous raid. Again, plaintiff Deatherage was given no

12 opportunity to save or retrieve his personal property.

13

46. Plaintiff Charlene Clay's personal property has been seized and destroyed by

14 defendants on at least two occasions. Sometime during the first two weeks of April 2006,

15 she and her husband were staying on a hill off of G Street in Fresno. While they were at the

16 Poverello House, a local service provider, they heard that the City was taking people's

17 property. Plaintiff Clay went as fast as she could to where she had left her belongings, but

18 when she arrived, almost everything she owned had already been seized, including: her

19 false teeth; her medications; a small TV and laptop computer; a bike; dog food; blankets

20 and sleeping bags; and her and her husband's clothes and personal papers. Again on

21 October 8, 2006, she and her husband were under a bridge at San Benito and H Street.

22 Fresno police officers arrived without warning and confiscated homeless people's shopping

23 carts and took them away.

24

47. Plaintiff Cynthia Greene has had some or all of her belongings seized by

25 Defendants approximately five times since January 2006. Property of plaintiff Greene's

26 that Defendants have confiscated include: photographs of her deceased relatives (her father,

27 mother, and brother); bicycles; tent and bedding; and winter gear such as rain suits and an

Heller 28 umbrella, resulting in her getting sick as a result of being out in the rain without any shelter.
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1 In the last such raid, on or about August 27, 2006, defendants confiscated plaintiff Greene's

2 belongings with a bulldozer truck, even as she and other homeless women were trying to

3 move their belongings. In this raid, the Fresno employees destroyed her property including

4 medication; her tent and blankets; her personal papers and identification; and her backpack.

5

48. Plaintiff Joanna Garcia has had her personal property confiscated and

6 destroyed by defendants on approximately five occasions since January 2006. The property

7 destroyed in these raids include: tents; blankets; personal papers; clothing; photographs of

8 her grandmother and her son; and a lock of her son's hair. In the most recent raid, on or

9 about August 27,2006, Fresno police officers seized and destroyed her property in the E

10 Street area, even as she was attempting to move it to save it from destruction. Items seized

11 and destroyed by defendants in this raid included: medication, including inhalers for asthma

12 and antibiotics; food; tents and sleeping bags.

13

49. Plaintiff Randy Johnson, Sr. had his personal property confiscated by

14 defendants in April 2006. During this raid, Fresno city employees seized and destroyed his

15 shopping cart, which had in it such items as: blood pressure medication; clothing; blankets;

16 and family photographs.

17

Requisites for Relief

18

50. Defendants' policies, actions and conduct have resulted and will result in

19 irreparable injury to plaintiffs. Plaintiffs have no plain, adequate or complete remedy at law

20 to address the wrongs described herein. Defendants have made it plain by their actions, the

21 ongoing nature of their activities, and their public statements that they intend to continue the

22 unlawful conduct described above. Defendant City of Fresno has a policy and practice of

23 confiscating and destroying the personal property of plaintiffs and members of the plaintiff

24 class without legal basis and the remaining defendants have and will continue to participate

25 in implementing this policy and practice unless and until restrained by an injunctive decree

26 of this Court.

27

51. The acts of defendants as alleged above constituted violations of established

Heller 28 constitutional rights of plaintiffs, and defendants could not reasonably have thought that
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1 their conduct in intentionally seizing and immediately destroying all of plaintiffs' personal

2 property as alleged herein was consistent with plaintiffs' constitutional rights.

3

52. An actual controversy exists between plaintiffs and defendants in that

4 defendants have engaged in the unlawful and unconstitutional conduct as alleged herein and

5 intend to continue this unlawful conduct as an ongoing practice and policy of Fresno

6 whereas plaintiffs claim that these practices are unlawful and unconstitutional and therefore

7 seek a declaration of rights with respect to this controversy.

8

53. As a direct and proximate result of the unconstitutional and unlawful

9 policies, practices and conduct of defendants, plaintiffs and members of the plaintiff class

10 have suffered, and will continue to suffer damages, including but not limited to deprivation

11 and destruction of property, including clothing, bedding, medication, personal documents

12 and other personal possession, leaving them without their essential personal belongings

13 necessary for shelter, health, well-being and personal dignity.

14

54. The acts of defendants were willful, wanton, malicious, and oppressive and

15 done with conscious disregard and deliberate indifference for plaintiffs and their rights.

16

55. Plaintiffs have filed administrative claims with the City of Fresno pursuant

17 to California Government Code § 910 et seq.

18

First Claim for Relief

(Denial of Constitutional Right Against Unreasonable Search and Seizure- Fourth

19

Amendment)

20
56. Plaintiffs reallege and incorporate here paragraphs 1 through 55 above, as

21 though fully set forth.

22 57. Defendants' above-described policies, practices and conduct violate
23
plaintiffs' right to be free from unreasonable searches and seizures under the Fourth
24
Amendment to the United States Constitutional and 42 U.S.C. § 1983.
25
Second Claim for Relief

26

(Denial of Constitutional Right to Due Process of Law- Fourteenth Amendment)

27

58. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

Heller 28 though fully set forth.
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1

59. Defendants' above-described policies, practices and conduct violate

2 plaintiffs' right to due process of law under the Fourteenth Amendment of the United States

3 Constitution and 42 U.S.C. § 1983.

4

Third Claim for Relief

5

(Denial of Constitutional Right to Equal Protection of the Laws - Fourteenth Amendment)

6

60. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

7 though fully set forth.

8

61. Defendants' above-described policies, practices and conduct are intended

9 and designed to single out homeless people and have the purpose and effect of depriving

10 homeless people of their property and of driving homeless people from the City of Fresno. 11 These policies and actions are based on defendants' animus towards this disfavored group

12 and lacks a rational relationship to any legitimate governmental interest. In adopting and

13 implementing these policies and practices with the intent to harm and disadvantage

14 homeless persons in the City of Fresno, the defendants have violated the Equal Protection

15 Clause of the United States Constitution and 42 U.S.C. § 1983.

16

Fourth Claim for Relief

17

(Denial of Constitutional Right Against Unreasonable Search and Seizure -

18

California Constitution, Article 1, § 13)

19

62. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

20 though fully set forth.

21

63. Defendants' above-described policies, practices and conduct violated

22 plaintiffs' right to be free from unreasonable searches and seizures under Article 1, § 13 of

23 the California Constitution.

24
25
26
27
28
Heller Ehrman LLP

Fifth Claim for Relief (Denial of Constitutional Right to Due Process of Law- California Constitution, ,
Article 1, § 7(A»
64. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as
though fully set forth.

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Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 16 of 18

1

65. Defendants' above-described policies, practices and conduct violate

2 plaintiffs' right to due process oflaw under Article 1, § 7(A) of the California Constitution.

3

4

Sixth Claim for Relief (Denial of Constitutional Right to Equal Protection of the Laws - California

5

Constitution, Article 1, § 7(A»

6

66. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

7 though fully set forth.

8

67. Defendants' above-described policies, practices and conduct were and are

9 intended and designed to single out homeless people and have the purpose and effect of

10 depriving homeless people of their property and of driving homeless people from the City

11 of Fresno. These policies and actions are based on defendants' animus towards this

12 disfavored group and lacks a rational relationship to any legitimate state interest. In

13 adopting and implementing these policies and practices with the intent to harm and

14 disadvantage homeless persons in the City of Fresno, the defendants have violated the Equal

15 Protection Clause of the California Constitution, Article 1, § 7(A).

16

Seventh Claim for Relief

(California Civil Code § 2080 et seq. and Government Code § 815.6)

17
68. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

18
though fully set forth.

19

69. Defendants' above-described policies, practices and conduct violated

20 California Civil Code § 2080 et seq., in that, among other things, defendants have failed to

21 safeguard the personal property of plaintiffs and members of the plaintiff Class found on

22 public land, failed to inform the owners of the personal property within a reasonable time of

23 finding this property, failed to document the property found, and failed to make restitution

24 of the property to its owners or to make arrangements to permit them to retrieve it all of

25 which are mandatory duties under Code of Civil Procedure § 2080 for which defendants are

26 liable and defendant public entities are liable under Government Code § 815.6.

27

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1

Eighth Claim for Relief

(California Civil Code § 52.1) 2
70. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

3 though fully set forth.

4

71. Defendants' above-described policies, practices and conduct constitute

5 interference, and attempted interference, by threats, intimidation and coercion, with

6 plaintiffs' exercise and enjoyment of rights secured the Constitutions and laws of the United

7 States and California, in violation of California Civil Code § 52.1.

8 Ninth Claim for Relief

9

(Common Law Conversion)

10

72. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

11 though fully set forth.

12

73. Plaintiffs were at all relevant times the owners of personal property

13 confiscated and destroyed by defendants as alleged above. Plaintiffs remain entitled to the

14 possession of their personal property. The personal property confiscated and destroyed by

15 defendants included tents, clothing, medication, medical devices, prescriptions, personal

16 items and documents, all of which were particularly valuable to plaintiffs in part because

17 these belongings amounted to much if not all of the relatively few possessions that plaintiffs

18 owned.

19

74. Defendants' above-described policies, practices and conduct denied

20 plaintiffs the possession of their property and constituted an unlawful conversion of that

21 property to the possession and control of defendants. Defendants have since refused to

22 return this personal property to plaintiffs, but instead have destroyed this property.

23

Prayer for Relief

24

WHEREFORE, plaintiffs seek relief from this Court the as follows:

25

1. For an order certifying the proposed plaintiff class, together with any

26

necessary and appropriate subclasses under Federal Rule of Civil Procedure

27

23;

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Case 1:06-cv-01445-OWW-SMS Document 1 Filed 10/17/06 Page 18 of 18

1

2. For a temporary restraining order, preliminary injunction and permanent

2

injunction, enjoining and restraining defendants from continuing or repeating

3

the unlawful policies, practices and conduct complained of herein;

4

3. For a declaratory judgment that defendants' policies, practices and conduct as

5

alleged herein were in violation ofplaintiffs, rights under the United States

6

Constitution, the California Constitution, the laws of the United States and the

7

laws of California;

8

4. For the return of plaintiffs' property;

9

5. For damages in amount according to proof but in no event less than $4,000

10

per incident under California Civil Code §§ 52 and 52.1 and Cal.

11

Government § 815.6;

12

6. For punitive and exemplary damages to be determined in accordance with

13

proof;

14

7. For attorneys fees as provided by law;

15

8. For costs of suit; and

16

9. For such other and further relief as the Court may deem just and proper.

17 October 16, 2006 18 19 20 21 22

Respectfully submitted, HELLER EHRMAN LLP LAWYERS' COMMITTEE FOR CIVIL RIGHTS ACLU FOUNDATION OF NORTHERN CALIFORNIA

23

24

By /s/ Paul Alexander Paul Alexander

25

Attorneys for Plaintiffs

26

27

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28

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 Case 1:06-cv-01445-OWW-SMS Document 3 Filed 10/17/06 Page 1 of 4

1

2

HELLER EHRMAN LLP PAUL ALEXANDER (SBN: 49997)

3

275 Middlefield Road Menlo Park, CA 94025-3506

4

TeleJ?hone: (650) 324-7000 FacsImile: (650) 324-0638

5 E-mail: paul.alexander@hellerehrman.com

6

LAWYERS' COMMITTEE FOR CIVIL RIGHTS OREN SELLSTROM (SBN: 161074)

7

ELISA DELLA-PlANA (SBN: 226462) 131 Steuart Street, Suite 400

8

San Francisco, CA 94105 TeleJ?hone: (415) 543-9444

9

FacsImile: (415) 543-0296 E-mail: osellstrom@lccr.com

10 ACLU FOUNDATION OF NORTHERN CALIFORNIA

11

ALAN L. SCHLOSSER (SBN:49957) MICHAEL T. RISHER (SBN:191627)

12

39 Drumm Street San Francisco, CA 94111

13

TeleJ?hone: (415) 621-2493 FacsImile: (415) 255-8437

14 E-mail: mrisher@aclunc.org

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

17

18 Pamela Kincaid, Doug Deatherage, Charlene

19

Clay, Cynthia Greene, Joanna Garcia, and Randy Johnson, Individually on Behalf of

20

Themselves and All Others Similarly Situated, Plaintiffs,

21

v.

22 City of Fresno, California Department of

23

Transportation, Alan Autry, Jerry Dyer, Greg Gamer, Reynaud Wallace, John Ro~ers, Phillip

24

Weathers, and Will Kempton, indivIdually and in their official capacities; DOES 1-100,

25 inclusive,

26

Defendants.

Civil Action No.:
COMBINED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

27

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28

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Case 1:06-cv-01445-OWW-SMS Document 3 Filed 10/17/06 Page 2 of 4

1

Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna

2 Garcia, and Randy Johnson, move this court, pursuant to Rule 65 of the Federal Rules of

3 Civil Procedure:

4

Relief Sought

5

1. To issue a temporary restraining order restraining Defendant City of Fresno,

6 including the Fresno Police Department and the Community Sanitation Division of the City

7 of Fresno, from taking and destroying property that they know or reasonably should know is

8 the property of the homeless, including but not limited to their tents, clothing, personal

9 effects, carts and other related property pending the hearing on and determination of

10 Plaintiffs' Motion for Preliminary Injunction.

11

2. To issue a preliminary injunction restraining Defendant City of Fresno,

12 including the Fresno Police Department and the Community Sanitation Division of the City

13 of Fresno, from taking and destroying property that they know or reasonably should know is

14 the property of the homeless, including but not limited to their tents, clothing, personal

15 effects, carts and other related property.

16

Grounds for Motion

17

1. The grounds for this motion, as more fully set forth in the verified complaint,

18 the Memorandum of Points and Authorities filed herewith and the Declarations of Michael

19 Rhodes, Pamela Kincaid, Joanna Garcia, Doug Deatherage, Randy Johnson, Charlene Clay,

20 Cynthia Greene, Samuel Vizcarrondo, Tracy Williams and Liza Apper are that:

21 Defendants, including but not limited to City of Fresno, the Fresno Police Department, the

22 Community Sanitation Division of the City of Fresno and other Fresno City employees, go

23 to places where homeless people are found in the City of Fresno and systematically seize

24 and destroy all of Plaintiffs' personal property, including their tents, clothing, shoes,

25 personal effects and related property essential to their ability to survive. They do so even

26 though the property is clearly not abandoned and even though Plaintiffs andlor members of

27 the Plaintiff Class plead to be allowed to save or retrieve their personal property. No

Heller

28

Ehrman LLP

2

Case 1:06-cv-01445-OWW-SMS Document 3 Filed 10/17/06 Page 3 of 4

1 provision to allow Plaintiffs or members of the Plaintiff Class to claim or retrieve their

2 possessions is made; to the contrary, their property is taken and immediately destroyed.

3

2. No valid or lawful basis exists for all the personal possessions of the homeless

4 Plaintiffs. The confiscation and immediate destruction of Plaintiffs' personal possessions

5 which include their shelter (such as a tent, their clothing, shoes and other essentials of life as

6 well as personal effects, photographs and documents). Plaintiffs have not abandoned their

7 property and there is no basis to presume otherwise.

8

3. The continuing destruction of Plaintiffs' personal property, including their

9 shelter, clothing, personal effects and related property will cause immediate and irreparable

10 injury to the plaintiff. The declarations of Michael Rhodes, Pamela Kincaid, Joanna Garcia,

11 Doug Deatherage, Randy Johnson, Charlene Clay, Cynthia Greene, Samuel Vizcarrondo,

12 Tracy Williams and Liza Apper show the nature of the conduct and the irreparable harm

13 that has been and will continue to be suffered by Plaintiffs absent an order of this Court.

14

4. Unless the operation and enforcement of the order is restrained pending final

15 disposition of the action, the injury to Plaintiffs in the interim will be irreparable even if the

16 final judgment is for the Plaintiffs.

17

5. No injury will be sustained by the Defendants or by the public through

18 issuance of a temporary restraining order.

19

This motion is based on the Motion papers, including this document, the Certificate

20 of Counsel, the attached Memorandum of Points and Authorities, the supporting

21 Declarations of Michael Rhodes, Pamela Kincaid, Joanna Garcia, Doug Deatherage, Randy

22 Johnson, Charlene Clay, Cynthia Greene, Samuel Vizcarrondo, Tracy Williams, and Liza

23 Apper, as well as the verified complaint and all other papers and records on file in this

24 action, together with any argument and evidence that may be presented at the hearing of this

25 motion.

26

27

Heller

28

Ehrman LLP

3

Case 1:06-cv-01445-OWW-SMS Document 3 Filed 10/17/06 Page 4 of 4

1 October 16, 2006

2

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7

8

9

10

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13

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Heller

28

Ehrman LLP

Respectfully submitted, HELLER EHRMAN LLP LAWYERS' COMMITTEE FOR CIVIL RIGHTS ACLU OF NORTHERN CALIFORNIA
By /s/ Paul Alexander Paul Alexander Attorneys for Plaintiffs

4

 
 Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 1 of 10

BRUCE A. BEHRENS, Chief Counsel THOMAS C. FELLENZ, Deputy Chi ef Counsel 2 RONALD W. BEALS, Assistant ChiefCoul1sel CHERYL D. McNULTY 3 DAVID P. HARRlS (Bar No. 1585 11), MATTHEW B. GEORGE Attorneys for Depart ment of Transportation 4 11 20 N Street (MS 57), P. O. Box 1438 Sacramento, Ca ti fomia 95812- 1438 5 Telephone: (9 16) 654-2630 Facsimile: (9 16) 654-6128 6 Attorneys for Defendant Will Kempton 7

8
UNITED STATES DISTRJCT
9
EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION 10

I I PA1'V1ELA KINCAlD, etc., et aI.,

)

)

12

Plaintiffs,

)

)

13

v.

)

)

14 CITY OF FRESNO, et aI. ,

)

)

15

Defendants.

)

1- - - - - - - - - - - -)
16

17

18

CASE NO. I :06-CV-01 445-0WW-SMS
NOTICE OF MOTION; MOTION TO DISMISS FOR LACK OF SU BJECT MATTER JURISDICTION, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, MOTION TO STRfKE, AND MOTION FOR MORE DEF IN ITE STATEMENT (FRCP 12(b)(6), 12(b)(1)(3), 12(1), and 12(e))
Date: March 12, 2007 Time: 10:00 a.m. Courtroom: 3 Judge: Oliver W. Wanger

19 TO ALL PARTIES AND THE IR ATTORNEYS OF RECORD:

20

Please take notice that on March 12, 2007 at 10:00 a. m., or as soon thereafter as the

2 1 maller may be heard in the above entitled co urt, located at United States Courthouse, 2500 Tu lare

22 Street, Courtroom 3, Fresno, California 93721, Defendant Will Kempton ( "Defendant") will move

23 thi s court to di smi ss the action pursuant to Federal Rules of Civil Procedure 12(b)(I)(3) and 12(b)(6),

24 wi ll also move this court to strike Defendant from the complaint pursuant to Federal Rules of Civil

25 Procedure 12(0, and wi ll also mover thi s court in Lhe alternative for a more defi nite statement

26 pursuant to Federal Ru les ofCivii Procedure 12(c), based on the following grounds:

27

A. This court lacks subj ect matter jurisdiction because the Eleventh Amendment

28 bars a federal court action against Defendant.

c.,,"'",
lop l Ohlslo.
M•• iJ«IlIJMI

NOlice of MOlion; MOlion 10 Dismiss for Lack of Subject Maner Jurisdiction, etc., (FRCP 12(bX6), 12(b)(1 )(3), 12(f), and 12(e»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 2 of 10

B. Defendant should be di smissed from the complaint because there are no charging

2 allegations against the Defendant.

3

C. The allegations against the Defendant are immaterial and impertinent and should

4 be stricken from the First Amended Complaint.

5

D. In the alternative, the allegation s in the First Amended Complaint as to the

6 Defendant arc so vague and ambiguous, Defendant cannot reasonably be required to frame a

7 responsive pleading absent a more definite statement.

8

E. The Doctrine of Unclean Hands, namely their adm itted trespass upon and littering

9 of State property. prevents pl a intiffs from secking either equitable or lega l remedies against the

10 Defendant.

II

The motion will be based on this Notice of Motion, Memorandum of Points and

12 Authorities fil ed herewi th , the Declaration of David P. Harris filed herewith, and the pleadings and

13 papers filed herein.

14 DAT ED: January 12, 2007

IS

16 Respcctfull y submitted: 17 18

BRUCE A. BEHRENS, Chi ef Cou nsel THOMAS C. FELLENZ, Deputy Chi ef Counsel RONALD W. BEA LS, Assistant Chi ef Counsel
CHERYL D. McNULTY DA VID P. HARRIS, MATTHEW B. GEORGE

19

20 21

By_~~a0~~;;.,;1f.".,!'iUr'(.j/':::::..':Ai£:.!:2.'/Li4·_

DAVlD P. HARRIS

•

22

Attorneys for Defendant Wi ll Kempton

23

24

25

26

27

28

C . M. . .. 1.. . .1 D i v b lo n R••11toI JlIMlI

2
Notice of Motion; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(b)(6), 12(b)( I)(3), 12(t), and 12(c»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 3 of 10

J. STATEMENT OF ISSUES

2

A. Does the Eleventh Amellt!mefll preclude this Court from exercising subject matter

3 '/lrisdielion in this action ?

4

8 . Should Defendant Kempton be dismissed from this (lction because there are

5 illsufficiefll charging affegations against him?

6

C. Should Defendanl Kempton be stricken from the complaint because he is

7 immaterial and impertinent fa (his aerion?

8

D. iI/the alternative, should plailllijJs be required to file a more definite stat ement

9 with regard to De/elldalll Kempton ?

10

E. Should Defendant Kempton be dismissed due to the unclean hands ofplaintiffs,

11 namely their admitted trespass upon and littering ofState properly?

12

II. STATEMENT OF FACTS

l3

On October 17, 2006, plaintiffs fil ed a complaint for declaratory and injunctive reli ef

14 and for damages against the C ity of Fresno and several of its offic ials and employees. Plaintiffs also

15 named the State of Cali fo rnia, Department of Transportation ("Ca ltrans" or " the Department'") and the

16 Department 's Director, Will Kempton, in both his official and individual capacities. Plaintiffs'

17 complaint all eged that the defe ndants have unlawfull y confiscated and destroyed the property of

18 homeless people living in Fresno . The complaint asserted several causes of action under both state

19 and federal law.

20

On October 24, 2006, plaintiffs served the Department and Director Will Kempton in

21 his official capacity. Director Kempton was never served in hi s individual capacity. Plaintiffs have

22 pursued and obtained temporary injunct ive relief with relation to the subj ect of thi s matter. The

23 Department and Director Kempton wcre neither served nor parti cipated in the temporary injunction

24 proceedings.

25

On November 8, 2006, counsel for plaintiffs and counsel for the Department and

26 Director Kempton in hi s offic ial capacity entered into a stipula tion for an ex tension of time for the

27 Department to respond to the complaint. That stipu lation was subsequentl y timely filed with the

28 Court.

elk.... LtlI, ()h_
Ih .'.... JlIWOI

3
Notice of Motion ; Motion to Dismiss for Lack ofSubjcct Maner Jurisdiction, etc., (FRCP 12(b)(6), 12(b)(l X3), 12(f), and 12(c»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 4 of 10

Pursuant to that stipulation, plaintiffs agreed that , no later than December 13,2006,

2 plaintiffs would ei ther amend or dismiss the complaint with respect (0 the Department and Director

3 Kem pton in both his offi cial and indi vidual capacities.

4

Instead, on December 13, 2006, pl aintiffs fil ed and served a fi rst amended comp laint

5 for declaratory and injunct ive relief and for damages ("FAC" or "First Amended Complaint"). The

6 FAC removed the State as a defendant. It also expressly stated that Director Kempton "is sued onl y

7 in hi s official capacity and onl y for violations of federal law." (FAC, p. 5, lines 9- 10, paragraph 25.)

8

But the FAC also namcd two cmployecs of Department, James Province and Daryl

9 Glenn, as defendants, in both their individual and official capaciti es and for alleged violations of both

10 state and federal law. At the time of this mOlion , neither Mr. Province nor Mr. Glenn has been

11 served, and thus this motion is fil ed only on behalf of Director Wi ll Kempton.

12

III. POINTS AND AUTHORITI ES I N SUPPORT OF MOTION

13

A. The First Amended Complaint Must be Dismissed Because th e Eleventh

14 Amendmen t Bars a ny Federa l District Court Action Agai nst Defendant Kempton \Vhen Acting

15 in his Official Capacity.

16

Plainti ffhas commenced a federal court action against the Director of the Cali fornia

17 Department of Transportation in hi s official capacity.

18

Th e Eleventh Amendment of the United States Constitution provides in pertinent

19 part as follows:

20

"The judicial power. .. shall not ... extend to any suit in law

or equity . . . agai nst one of the United States by citizens of another

2t

state or by citizens or subjects of any fo reign state:'

22

United States Constitution, Amendment XI; See Gilbreath v. Cutter Biological, fll c.

(9th Cir. 199 1) 93 1 Fed. 2d 1320, 1327.

23

The Eleventh Amendment grants sovereign immunity to the states against suit in

24 fede ral court. "[E]ach state is a sovereign entity in our fede ral system; and... it is inherent in the

25 nature of sovereignty not to be amenable to sui t of an individual without its consent." Semillole

26 Tribe of Florida v. Florida ( 1996) 517 U.S. 44. 54 11 6 S.C!. 1114, 1122. Cali fomia'ssovereign

27 immunity derives from the structu re of the ori ginal constitution itself and extends beyond the literal

28
term s of the Eleventh Amendment. Aldell v. Maille (1 999) 527 U.S. 706. 736. 119 S. Ct. 2240. 2257.

C.I".n,
L.."" Pi.·";'n R...b«l JllMll

4 Notice of Motion; Motion to Dismiss for Lack of Subjcct Maller Jurisdiction. etc., (FRCP !2(bX6), 12(b)( 1X3), 12{f), and 12(c»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 5 of 10

Even though the Eleventh Amendment does not expressly bar suits against the state by its own

2 citizens, it has been so interpreted . " An unconsenting state is immune from suits brought in federal

3 court by her own ci tizens as we ll as by citi zens of another state." Pellllllllrst State ScllOol (wd

4 Hospital v. Haldermall ( 1984) 465 U.S. 89, 100, 104 S.Ct. 900,908; Papasall v. A I/aill (1986) 78

5 U. S. 265, 2 76, 106 S.Ct. 2932, 2939.

6

The Eleventh Amendment immunity also bars suits against Defendant Kempton

7 when acti ng in his officia l capacity because the Departmcnt is the "rcal, s ubstanti al party in interest."

8 (Sce Penn/llIrst State Sc"ool an d Hospital, sllpra, at page 101 ; Demery v. Klippermall (9th Cir.

9 1984) 735 Fed. 2d, 11 39, 1146.) As expressly stated by plaint iffs in their First Amended Compl aint,

10 Defendant Kempton is being sued solely in his official capacity as Director of the Department. (FAC,

11 page 5, lines 1-3 and 8-10, paragraphs 22 and 25 .)

12

The type of reli ef sought, whether injuncti ve o r monetary, is irrelevant as to whether

13 suit is barred by the Eleventh Amendment. (See Seminole Tribe 0/ Florida, supra, at page 58 .) In

14 absence of consent , plai ntiffs' complai nt aga inst th c D efendant is barred by the Eleventh

15 Amendm ent. (Pe""hurst State Sc" ool ami Hospital, supra, at page 100; Regents o/the University

16 of Califomia v. Doe ( 1997) 5 19 U. S. 425,429, 430, 117 S.C!. 900, 904; Be/mlger v. Madera Vilified

17 School District (9th Cir. 1992) 963 Fed. 2d 238, 254.

18

De fendant K empton is a State o ffi cial because he is acting in hi s official capacity

19 under State law ; thus, hc is immunc from sui t pursuant to the Eleventh Amendment. Garcia v. City

20 of C/ricago, IIIillois (7 th Cir. 1994) 24 Fed. 3d 966, 969.

21

In summary, plaintiffs' First Amended Complaint shou ld be dismi ssed as to

22 Defendant Kempton as this court lacks subj ect matter jurisdiction because the El eventh Amendment

23 bars federal lawsui ts against the State and its officers acting with in their official capacities.

24

8. Plaintiffs' First Amend ed Co mpl ain t Should be Dismissed for Failure to

25 State a Claim Upon Which R elief Can be Granted as to Defendant Kempton.

26

Federal Rule o[ Civil Procedure 12(b)(6) prov ides that dismissal of an action is

27 proper where there is ei ther a " lack o f cognizabl e legal theory" or "the absence of sufficient facts

28 a ll eged under a cognizable legal theory". Balistreri v. Pacifica Police Department (9th Cir. 1990)

Co ll<"" 1.0,;01 01_
R...1...t lIlOitl

5 Notice of Motion; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(bX6), 12(b)( IX3), 12(1). lind 12(e»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 6 of 10

901 Fed . 2d 696, 699. GraehUllg v, Village of Lombart, llIillois (7th Cir. 1995) 58 Fed. 3d 295,

2 297. A careful rcading of the plaintiffs' FAC clearly estab li shes that there are no chargin g

3 allegations agai nst Defendant Kempton. Hi s name only appears on page 5, lines 1 through 3 and 8

4 through 10.

5

The test for detemlining whether a compl aint has pled a "claim for relief' is to

6 detennine i r the complaint sets forth sufficient facts, which, if established, give risc to one or more

7 enforceable legal rights. Goldstein v. North Jersey Trust Co. (SD NY 1966) 39 FRD 363, 366; In re

8 Baker (8 K D NY 1986) 66 BR 652, 653. Although fede ral pleading requirements are liberal in order

9 to minimize disputes over pleading technicalities, (Collley v. Gibson (1957) 355 US 41, 47-48, 78

10 S.Ct. 99,103), plaintiffs are still required to plead a "simple, concise and direct" allegation in its

II comp laint (FRCP 8(e)(I).

12

Plaintiffs have fai led to allege any facts against Defendant Kempton that hi s conduct

13 was improper. The FAC merely alleges that an alleged wrong has been (apparently) commilled by the

14 Department, but demands relief from Defendant Kempton. The underlying requirement in federal

15 pleadings is to give "fair notice" of its claim being asserted on th e "ground upon wh ich it rests."

16 Conley, supra, at page 47, 48 and Yamaguchi v. United States Department ofAir Force (9th Cir.

17 1997) 109 Fed 3d 1475, 1481. Plaintiffs have fai led to give fair notice of its claims against the

18 Director Kempton and further failed to assert any grounds for the alleged wrong. Therefore ,

19 plaintiffs' FAC shou ld bc dismissed without leave to amend as to Director Kempton.

20

C. Defendant Kempton Should Be Stricken From the First Amended Complain t

21 Because He Is An Immaterial And Impertinent Party To This Action.

22

A motion to strike may be granted where "it is clear thal the matter to be stricken

23 could have no possible bearing on the subject matter of the litigation." LeDuc v. Kentucky Central

24 Life/llsuraflce CompallY (ND CA 1992) 814 Fed. Supp. 820 , 830.

25

First, it is most telling that plaintiffs did not involve Director Kempton or any

26 officials or emp loyees of the Department in their proceedings to seek a temporary restraining order or

27 preliminary injunction. The omission of Defendant Kempton ITom those proceedings is a tacit

28 admission by plainti ITs that Defendant Kempton has no involvement in the matters at issue here.

Cal,,,",
1.-<,. IOI,'hion R..I.... lnI)lOz

6
Noticc of Motion; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(b)(6), 12(b)(1 }(3), 12(f), and 12(e))

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 7 of 10

Defendant Kempton has been slied in hi s official capacity as the Director of the

2 Department. He has no personal liability in this lawsuit. Moreover. plaintirThas made no charging

3 allegations against Defendant Kempton and therefore he is immaterial and impertinent as to the

4 issues involved in thi s act ion. Falllasy fll c. v. Fogarry (9th C ir. 1993) 984 Fed. 2D, 1524, 1527.

5

Defendant Kempton should be stri cken from the complaint.

6

D. In th e Alternative, th e Allegations in the First Amended Complaint as to

7 Defendant Kempton Are so Vague and Ambiguou s that Defendant Cann ot Reasonably be

8 Required to Fra me a Responsive Pleading Absent a More Definite Statement.

9

" Ira pleading to which a responsive pleading is permitted is so vague and ambiguous

10 that a party cannot reasonab ly be required to frame a responsive pleading, the party may move for a

II more definite statement be fore interposing a responsive pleading." Federal Rule ofCivii Procedure

12 12(e).

13

Whi le a motion for a more definite statement is generally disfavored, in cases

14 in volvi ng eivil ri gh ts claims against public officials, a 12(e) mo tion is appropriate.

IS

To relieve public officials of the burdens of di scovery and trial, a rul e 12(e) motion is

16 appropriate to compel plaintiffs to allege "specific nonconclusory factual allegations". Crawford-EI

17 I'. Brilloll ( 1998) 523 U.S. 574, 597-598.

18

As stated above, th e all egations against Defendant Kempton are so vague and

19 ambiguous that he calIDol reasonab ly be required to fram e a responsive pleading absent a more

20 definite statement orthe all egations aga in st him. Therefore, at a minimum, plaintiffs should be

21 required to provide a more definit e statement of their all egatio ns against Defendant Kempton.

22

E. Th e Doctrine of Uncl ean Hands, Namely Tb eir Admitted Trespass Upon And

23 Littering Of State Property, Prevents Plaintiffs From Seeking Ei ther Eq uitable Or Legal

24 Remedies Against Defendant Kempton.

25

A fundam ental princ iple in equity is the maxim that he who comes in equi ty must do

26 so with clean hands. Sec e.g_, Bellllell v. Lew (1984) l SI Cal. AppJd 1177; De Garmo v_Goldmall

27 (1942) 19 Cal. 2d 755.

28

n~n• •
1 ~ .'Oh_
H.,t.... }lI M I

7 Notice of Motion ; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(b)(6). 12(bX I )(3), 12(1), and 12(e»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 8 of 10

Furthermore, the unclean hands doctrine is not confined to equitable actions, but is

2 also available in legal actions. Camp v. Jeffer, Mmlge/s, Butler & M(lrlll(lro (1995) 35 Cal.App.4th

3 620, as modified on denial ofreh'g. Here, the PAC seeks both declaratory and injunctive relief and

4 damages.

5

By plaintiffs' own admiss ion as set forth in the FAC and elsewhere, plaintiffs open ly

6 acknowledge their trespass upon and littering of State property. In fact, one of the very few

7 substanti ve allegations that allegedly subjects any State actors to liability is that some of th e removal

8 activities of homeless individuals were conducted on property belonging to the State ofCalifomia.

9 (See e.g., FAC, page II , lines 14-21 , para. 43.) Additionally, the FAC expressly a\leges that the State

10 of California owns other property in the City of Fresno on which homeless people live and/or keep

II thei r belongi ngs. (FAC, page 12, lines 12- 13, para. 44.)

12

The reliefsought by plaintiffs would strip the State of its ability to safely manage

13 state highways and adjoining rights-of-way. The State must be able to maintain its property in a

14 manner that illsures safety for the homeless, motorists, and its own employees. The State has explicit

15 statutory authority to support its position. Californ ia Vehicle Code section 231 J 3, for example, (1)

16 permits the State to remove litter from hi ghways and ri ghts-or-way, (2) allows the State to recover the

17 costs of that removal from the responsible party and (3) provides immunity to the State for any

18 alleged damages related to the removal of that property.

19

To permit the relief sought by plaintiffs would cede the State's authority to maintain

20 its rights-o f-way to trespassers.

21

Due to the unclean hands of plaintiff with regard to the activities alleged in the FAC,

22 Defendant Kempton should be dismi ssed from the FAC.

23

IV. CONCLUS tON

24

The Eleventh Amendment bars any action against the State of California Department

25 of Transportation or, as is the case here, an individual State offic ial acting in his official capacity.

26

Also, the doctrine of uncl ean hands defeats plaintiffs' claims.

27

28

( :.h ..~, 1....1DI. bIo. R• • b«IlI1!WOl

8
Notice of Motion; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(b){6), 12(b){ I)(3), 12(f), and 12(e»

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 9 of 10

In addition, P1aintiffhas not pled suffici ent facts to constitute an action against

2 Defendant Kempton because there are no chargi ng allegations against hi m, nor is there a concise

3 statement of facts that duly notifi es Defendant Kempton of the action against him.

4

Further, Defendant Kempton should be stricken [rom the complaint as he was acting

5 within the course and scope of his employment as an official representati ve o[ the Department and

6 State and not in any other capacity.

7

Mo reover, in the alternati ve, Defendant Kempton is entitl e to a more definite

8 statement before being required to file a responsive pleading.

9

For any and all of the foregoing reasons, this motion should be granted.

10 DATED:
II

January 12, 2007.

12 Respectfully submitted: 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BRUCE A. BEHRENS, Chi cf Counsel THOMAS C. FELLENZ, Deputy Chi ef Counsel RONALD W. BEALS, Assistant Chief Counsel CHERYL D. McNULTY DAVID P. HARRJS, MATTHEW B. GEORGE
Attorneys for Defendant Will Kempton

Co""'.,
I.ozol Di,·ifIo. R..·itf.d )JIMlI

9
Notice of Motion; Motion 10 Dismiss for Lack of Subject Matter Jurisdicfion, etc., (FRCP 12(b)(6), 12(b}( 1}(3), 12(f), and 12(e))

Case 1:06-cv-01445-OWW-SMS Document 96 Filed 01/12/07 Page 10 of 10

PROOF OF SERVICE

2

I, the unders igned, say: I am, and was at all ti mes herei n mentioned, a citizen of the

United States and emp loyed in the County of Sacramento, State of California, over the age of 18 years

3

and not a party to the withi n actio n or proceed ing; that my business address is 1120 Street, Sacramento, Cal ifornia; that on January 12,2007, I enclosed a true copy of the attached NOTI CE OF

4 MOTION; MOTION TO DISMISS FOR LAC K OF SUBJECT MATTE R JURISDICTION, MOT ION TO DISM ISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN

5 BE GRANTED, MOTION TO STRIKE, AND MOTION FOR MORE DEFINITE STATEMENT (FRC P 12(b)(6), 12(b)(I)(3), 12(1), and 12(e» ; DECLARATION OF DAVID P.

6

H ARRIS IN SUPPORT THEREOF, PROPOSED ORDER in a separate envelope for each of the
persons named below, addressed as set forth immediately below the respective names, as follows:

7 HELLER EHRMAN LLP

8

PAUL ALEXAN DER 275 Middlefield Road

9

Men lo Park, CA 94025-3506 Facsimile: (650) 324-0638

10

JAMES B. BETTS BETTS & WRIGHT, A Professional Corp. Attorneys at Law
P . O. Box 28550 Fresno, CA 93729-8550 Facsimi le: (559) 438-6959

II

The fo llowing is the procedure by which service of thi s document was effected:

12

L

u. S. Postal Service (by plac ing such enve lope(s), with postage

13

thereon fully prepaid as fi rst-c lass mai l, and depositing the same on the aforesaid date in a maili ng faci lity regu larly maintained by the

14

Uni ted States Postal Service for the maili ng of letters at Sacramento, California)

15

Federal Express

16

DHL

17

u.S. Postal Service Express Mail

18

-.X.

FAX

19

Personal Service

20

I declare under penalty of perjury that the fo regoi ng is true and correct.

21

Exec uted on January 12, 2007, at Sacramento, Cali fo rnia.

22 23

fl'l»ifll~

24

Declarant

25

26

C.h"~1

27

lA1ol l,)l.llio.

28 R"I>«l llIO/()!

PROOF OF SERVICE (C.c. P. 10J3A AND C.C. P. 20 15)
to
Notice of Motion; Motion to Dismiss for Lack of Subject Matter Jurisdiction, etc., (FRCP 12(b)(6), 12(b){ 1)(3), 12(f), and! 2(e)

 
 Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 1 of 21

1 HELLER EHRMAN LLP

2

PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road

3

Menlo Park, CA 94025-3506 Telephone: (650) 324-7000

4

Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

6

OREN SELLSTROM (SBN: 161074) ELISA DELLA-PIANA (SBN: 226462)

7

131 Steuart Street, Suite 400 San Francisco, CA 94105

8

Telephone: (415) 543-9444 Facsimile: (415) 543-0296

9 E-mail: osellstrom@lccr.com

10

ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER (SBN:49957)

11

MICHAEL T. RISHER (SBN:191627) 39 Drumm Street

12

San Francisco, CA 94111 Telephone: (415) 621-2493

13

Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org

14

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

17

18

Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, and

19

Randy Johnson, Individually on Behalf of Themselves and All Others Similarly Situated,

20

Plaintiffs,

21

v.

22

City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

23

Weathers, Will Kempton, James Province, and Daryl Glenn, individually and in their official

24 capacities; DOES 1-100, inclusive,

25

Defendants.

Civil Action No.: 06-CV-1445-OWW CLASS ACTION FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES DEMAND FOR JURY TRIAL

26

27

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1

Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna

2 Garcia, and Randy Johnson, individually on behalf of themselves and others similarly

3 situated, complain against defendants as follows:

4

Nature of the Case

5

1. This action arises out of an ongoing policy and practice of defendant City of

6 Fresno, joined in by the remaining defendants, of confiscating and destroying the property

7 of homeless people who live in Fresno. Defendants’ unlawful actions deprive plaintiffs and

8 similarly situated homeless people of personal belongings that are critical to their survival,

9 such as clothing, medication, tents and blankets, as well as of irreplaceable personal

10 possessions, such as family photographs, personal records and documents, and even the

11 ashes of a deceased relative contained in an urn.

12

2. As alleged with more particularity below, defendants regularly engage in what

13 amount to raids of areas where homeless people live, during which defendants intentionally

14 and indiscriminately take and destroy personal property owned by homeless people in the

15 area and immediately destroy that property.

16

3. These ongoing raids are conducted either without notice or with inadequate

17 notice and in a manner that prevents plaintiffs and other homeless persons similarly situated

18 from retrieving their personal property to avoid its destruction. In many cases, members of

19 the plaintiff Class are physically restrained or ordered by members of the Fresno Police

20 Department to stand by while their few personal possessions are seized and destroyed,

21 leaving them even more destitute and defenseless. Further, as a part of this policy and

22 practice, defendants provide no means for plaintiffs or other similarly situated homeless

23 people to claim or retrieve their personal possessions once seized. Rather, all property is

24 immediately and summarily destroyed, so that it is lost forever.

25

4. Plaintiffs, on their own behalf and on behalf of all similarly situated persons

26 in the City of Fresno, California, claim that the intentional taking and destruction of their

27 personal property constitutes a violation by defendants of plaintiffs’ federal and state

Heller 28 constitutional rights to be free from unreasonable search and seizure and to due process of
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1 law, a violation of plaintiffs’ rights under California Civil Code § 2080, et seq. and Civil

2 Code §§ 52 and 52.1, as well as additional state law claims complained of herein. Plaintiffs

3 seek preliminary and permanent injunctive relief on behalf of themselves and other

4 homeless persons similarly situated enjoining defendants from taking and destroying their

5 personal property in violation of their constitutional, statutory and common law rights.

6

5. Plaintiffs further seek a declaratory judgment that the policies and practices of

7 defendants as alleged herein are unlawful under the federal and state constitutional

8 provisions and statutory rights complained of herein.

9

6. In addition to their primary claims on behalf of the class for injunctive and

10 declaratory relief, the plaintiffs seek statutory, actual and punitive damages resulting from

11 defendants’ intentional destruction of their personal property in violation of plaintiffs’

12 constitutional rights, under the United States and California Constitutions, and under

13 California Government Code § 815.6, California Civil Code § 2080 et seq., California Civil

14 Code §§ 52 and 52.1, and the common law doctrine of conversion.

15 Jurisdiction and Venue
16

17

7. This Court has jurisdiction based on 28 U.S.C. § 1331and 1343, and

18 supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

19

8. Venue is proper in this District in that the events and conduct arise to the

20 violations complained of occurred in this District. In addition, the defendants performed

21 their duties and committed the conduct complained of herein within this District.

22 Parties
23

24

9. Plaintiff Pamela Kincaid is a resident of the City of Fresno and at all relevant

25 times herein was and now is homeless.

26

10. Plaintiff Doug Deatherage is a resident of the City of Fresno and at all

27 relevant times herein was and now is homeless.

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1

11. Plaintiff Charlene Clay is a resident of the City of Fresno and at all relevant

2 times herein was and now is homeless.

3

12. Plaintiff Cynthia Greene is a resident of the City of Fresno and at all relevant

4 times herein was and now is homeless.

5

13. Plaintiff Joanna Garcia is a resident of the City of Fresno and at all relevant

6 times herein was and now is homeless.

7

14. Plaintiff Randy Johnson is a resident of the City of Fresno and at all relevant

8 times herein was and now is homeless.

9

15. Defendant City of Fresno (“Fresno”) is a municipal corporation, duly

10 organized and existing under the laws of the State of California.

11

16. Defendant Alan Autry is the Mayor of the City of Fresno and has either

12 directed or ratified the unlawful conduct alleged herein.

13

17. Defendant Jerry Dyer is Chief of the Fresno Police Department, and in that

14 capacity is responsible for the operations of the Police Department.

15

18. Defendant Greg Garner is a Captain of the Fresno Police Department and has

16 personally directed and taken part in the unlawful practices and polices alleged in this

17 complaint.

18

19. Defendant Reynaud Wallace is an officer of the Fresno Police Department

19 and has personally directed and taken part in the unlawful practices and policies alleged in

20 this complaint.

21

20. Defendant John Rogers is the Manager of the Community Sanitation

22 Division of the City of Fresno and in that capacity is responsible for the operations of the

23 Community Sanitation Division.

24

21. Defendant Phillip Weathers is an employee of the Community Sanitation

25 Division of the City of Fresno and has personally directed and taken part in the unlawful

26 practices and policies alleged in this complaint.

27

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1

22. Defendant Will Kempton is the Director of the California Department of

2 Transportation (“Caltrans”), and in that capacity is responsible for the enforcement,

3 operation and execution of all duties vested by law in that agency.

4

23. Defendant James Province is a Caltrans employee and is the Caltrans

5 Superintendent for the Fresno area.

6

24. Defendant Daryl Glenn is a Caltrans employee who directs Caltrans’ Special

7 Programs People program in the Fresno area.

8

25. All of the above individual defendants are sued in their individual and

9 official capacities, except defendant Kempton who is sued only in his official capacity and

10 only for violations of federal law.

11

26. Plaintiffs are informed and believe that DOES 1 through 50 at all relevant

12 times herein were officers and employees of the City of Fresno, including the Fresno Police

13 Department and the Community Sanitation Division of the City of Fresno, and that DOES

14 51 through 100 were officers and employees of Caltrans. Plaintiffs are ignorant of the true

15 names and capacities of defendants sued herein as DOES 1 through 100 and therefore sue

16 said defendants by such fictitious names. Plaintiffs will amend this complaint to allege their

17 true names and capacities when ascertained. Plaintiffs are informed and believe that each of

18 the DOE defendants is liable for, and proximately caused, the injuries and violations of

19 constitutional and statutory rights complained of herein. Plaintiffs will ask leave to amend

20 this complaint to insert further charging allegations when such facts are ascertained.

21

27. Plaintiffs are informed and believe that the acts of defendants complained of

22 herein were undertaken in the execution of customs, policies and practices of authorized

23 policymakers of the defendant City of Fresno and were joined in and/or implemented by the

24 remaining defendants, and each of them, acting as the agent, servant, employee and/or in

25 concert, and/or in conspiracy with each of said other defendants. Each of the defendants

26 caused, and is liable for, the unconstitutional and unlawful conduct and resulting injuries by,

27 among other things, personally participating in said conduct or acting jointly or conspiring

Heller 28 with others who did so; by authorizing, acquiescing or setting in motion policies, plans and
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1 actions that led to the unlawful conduct; by failing to take action to prevent the unlawful

2 conduct; by failing and refusing with deliberate indifference to maintain adequate training

3 and supervision; and by ratifying the unlawful conduct taken by employees under their

4 direction and control, including failing to take remedial and disciplinary action.

5

28. The acts complained of herein were intentionally and jointly committed, and

6 will continue to be committed jointly and systematically by defendants unless restrained by

7 this Court.

8 Class Allegations
9

10

29. The claims set forth hereinafter are brought by plaintiffs on their own behalf

11 and as representatives of a Class of similarly situated persons pursuant to Rules 23(a),

12 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of all homeless

13 persons in the City of Fresno whose personal belongings have been or will be taken and

14 destroyed by one or more of the defendants.

15

30. The members of the Class are so numerous that individual joinder of all

16 members is impossible. Plaintiffs are informed and believe on that basis allege that the

17 members of the Class well exceed 100 in number.

18

31. There are common questions of law and fact that predominate over any

19 questions affecting only individual Class members. Among the common questions of law

20 and fact are the following:

21

a. Whether defendants’ policies, practices and conduct of taking and

22 destroying the personal property of homeless people, without providing either adequate

23 notice or the opportunity to retrieve personal possessions before they are destroyed, and

24 without a legitimate governmental interest, violated and continues to violate the class

25 members’ state and federal constitutional rights against unreasonable search and seizure;

26

b. Whether defendants’ policies, practices and conduct of taking and

27 destroying the personal property of homeless people, without providing either adequate

Heller 28 notice or the opportunity to retrieve personal possessions before they are destroyed, violated
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1 and continues to violate the class members’ due process rights under the California and

2 United States Constitutions;

3

c. Whether defendants’ conduct of taking and destroying the personal

4 property of homeless people, without providing either adequate notice or the opportunity to

5 retrieve personal possessions before they were destroyed, and without a reasonable basis or

6 legitimate governmental interest, violated and continues to violate class members rights

7 under California Civil Code §§ 52 and 52.1, Civil Code § 2080, California Government

8 Code § 815.6 and the common law tort of conversion; and

9

d. Whether injunctive relief restraining further unconstitutional and unlawful

10 acts by defendants should be ordered by the Court and, if so, the nature of that injunctive

11 relief.

12

32. Plaintiffs will fairly and adequately protect the interests of the Class. They

13 have retained counsel who are experienced and competent in class-action and civil rights

14 litigation. Plaintiffs have no interests that are adverse or antagonistic to interests of other

15 members of the Class.

16

33. A class action is superior to any other method in order to secure a fair and

17 efficient adjudication of this controversy. As the primary relief sought is injunctive in

18 nature, the burden and expense make in impractical for class members to seek redress

19 individually for the wrongs done to them. The nature and amount of monetary damages

20 sustained by each Class member is very similar in nature and may be established by

21 common proof. Individual litigation by each class member would necessarily and

22 substantially burden the operation of the judicial system.

23

Factual Allegations

24

34. Between 4,400 to 8,800 of Fresno’s approximately 440,000 residents are

25 homeless, according to a recent report by a consortium of local government agencies and

26 providers. (Fresno Madera Continuum of Care Plan To End Homelessness at 10-11,

27 attached as Exhibit A hereto.) However, services for low-income people in need of shelter

Heller 28 are extremely scarce. “[O]nly 1.4% of the homeless population [is] sheltered . . . leaving
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1 more than 98% of the homeless population unsheltered and receiving no services.” (Id. at

2 13.) The report indicates that there is currently an “overwhelming need for homeless

3 assistances,” with a gap of approximately 7,000 shelter/housing spaces in the Fresno-

4 Madera area. (Id.) The lack of shelter for women is particularly acute. Naomi House, one

5 of the few shelters in Fresno for women, has capacity for only 25 women on any given

6 night. On information and belief, a lottery is held every day to choose which women will

7 be allowed to stay in the shelter on that night. Those who are not successful in this lottery

8 are turned away, and often end up staying on the streets nearby.

9

35. For more than a year, defendants have engaged in an ongoing and continuing

10 policy and practice of raids on those Fresno residents who are unsheltered, in which they

11 take and destroy the personal property of these individuals. Defendants have intensified this

12 ongoing practice since May, 2006. No legitimate or lawful basis exists for this wholesale

13 confiscation and destruction of the personal property of plaintiffs and the plaintiff Class.

14 None of these actions were authorized by a warrant. In many cases, the property the

15 defendants have taken and destroyed represents substantially all the possessions of these

16 homeless men and women.

17

36. On or about May 3, 2006, defendants raided several areas in Fresno where

18 they knew a significant number of plaintiffs and members of the plaintiff Class resided,

19 including an area on the west side of E Street near Santa Clara Avenue, abutting Highway

20 99. On information and belief, this area is owned and controlled by defendant Caltrans. In

21 this raid, Fresno employees used a bulldozer to destroy and dispose of all the personal

22 property of plaintiffs in their path. Plaintiffs had no adequate notice that defendants would

23 destroy their property. Defendants made no attempt to save items that belonged to people,

24 and in fact restrained efforts by homeless people to retrieve their personal property in order

25 to prevent it from being taken and destroyed. Nor did defendants make any provisions for

26 people to claim their property after it had been seized. Rather all plaintiffs’ property that

27 was seized was summarily destroyed.

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1

37. On or about May 25, 2006, defendants returned to conduct a further raid on

2 areas that had previously been raided, including the area of E Street abutting Highway 99.

3 Acting at the direction of and pursuant to the policy of the City of Fresno, City of Fresno

4 employees systematically took and destroyed all of the personal property of plaintiffs and

5 members of the plaintiff Class that they could find. Using a large bulldozer with a

6 mechanical “grabber” on the front, defendants dumped all of the personal property of

7 members of the plaintiff Class into a waiting garbage truck for immediate destruction, even

8 though it was obvious that much of what they were taking and destroying was personal

9 property owned by members of the plaintiff Class.

10

38. On or about June 22, 2006, defendants again confiscated and destroyed the

11 personal property of members of the plaintiff Class. In this raid, defendants seized and

12 destroyed property not only on the west side of E Street near Santa Clara Avenue, but also

13 in adjacent areas. As with the previous raids, representatives of the Fresno Police

14 Department acting at the direction and pursuant to the policy of the City of Fresno,

15 prevented homeless people, including members of the plaintiff Class, from retrieving their

16 personal possessions and made no attempts to save personal belongings from destruction or

17 to store them so that they could be claimed later by their owners. The week before this raid,

18 on or about June 15, 2006, the Fresno Police Department issued a memorandum addressed

19 to "All Campers on Ventura/E" stating that "On Thursday, June 22, 2006 we will be coming

20 through this area to do a clean up of Ventura, "E", Santa Clara & "G." streets. We will start

21 at 8:00 a.m. If you have property in these areas, please remove it or we will take it as

22 trash." This notice was inadequate to provide meaningful and effective notice to those who

23 would be affected by defendants’ unlawful conduct, both because of the manner in which it

24 was given and because defendants knew or should have known that many members of the

25 plaintiff Class would not receive the notice or understand that their personal possessions

26 were going to be taken and destroyed by defendants. Moreover, the defendants began their

27 systematic destruction of the personal property of plaintiffs and the plaintiff Class before

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1 8:00 a.m., making the notice further inadequate and misleading. Defendants also continued

2 with their policy of destroying property even while it was being claimed by the owners.

3

39. On or about July 1, 2006, defendants continued their unlawful seizures of the

4 property of plaintiffs and members of the plaintiff class. Early in the morning on July 1,

5 2006, members of the Fresno Police Department, complete with squad cars, a paddy wagon,

6 and a flatbed truck arrived near the intersection of E Street and Santa Clara Avenue and

7 began seizing property in multiple areas in the vicinity. Fresno Police Department

8 representatives unlawfully and without cause or basis confiscated shopping carts that were

9 the property of the homeless, including members of the plaintiff Class, loaded the carts onto

10 the flatbed truck and hauled them away and disposed of them. At no time did defendants,

11 or any of them, make an effort to determine the ownership of the carts or their contents, or

12 to allow plaintiffs or members of the plaintiffs’ Class to make a claim for the return of their

13 personal possessions.

14

40. On or about August 26, 2006, defendants again returned to the area near E

15 Street and Santa Clara Avenue in Fresno and repeated the systematic confiscation of the

16 property of plaintiffs and members of the plaintiff Class. City of Fresno employees again

17 systematically confiscated all of the personal property of plaintiffs and/or members of

18 plaintiff Class that they could locate and again threw it into City of Fresno garbage trucks

19 for destruction. Defendant made no attempt to save valuable personal possessions but

20 rather again seized and immediately destroyed all of the property of plaintiffs and/or

21 members of the plaintiff Class. Defendants again continued their practice of destroying all

22 the property they found regardless of the fact that it was being claimed by its owners.

23 Defendants again made no provision of any kind to allow plaintiffs and/or members of the

24 plaintiff Class to claim or retrieve their property.

25

41. Early in the morning on or about October 8, 2006, members of the Fresno

26 Police Department came to an area near H Street and San Benito where plaintiffs and/or

27 members of the plaintiff Class were found. The Fresno Police Officers, without cause or

Heller 28 basis, confiscated all of the shopping carts possessed by plaintiffs and members of the
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1 plaintiff Class and took them away for destruction. The Fresno Police Officers dumped all

2 the contents of all the shopping carts onto the ground resulting in damage to that property.

3 Plaintiffs’ shopping carts were not stolen and no legal basis existed to confiscate them. No

4 provision was made for plaintiffs or members of the plaintiff Class to retrieve their carts,

5 which are essential to their ability to move their property from one place to another.

6

42. Early in the morning on or about October 11, 2006, members of the Fresno

7 Police Department returned to the area near H Street and San Benito Street in the City of

8 Fresno where several homeless people were found. These Police Officers forced all of the

9 homeless in this area to get out of their tents and to stand in lines while they were searched,

10 despite the fact that there was no basis for this search and treatment. A Fresno Police

11 Officer then stated to all present that they intended to return very soon to again take and

12 destroy any property of the homeless found in that area and that the Police and other

13 defendants would “do what I have to do to get you guys out of here.”

14

43. Some of the raids conducted pursuant to Fresno’s unconstitutional policy

15 were conducted on property belonging to Caltrans. On information and belief, officials and

16 employees of Caltrans were notified in advance by Fresno of these raids, including but not

17 limited to the operations on June 22, 2006 and August 26, 2006, and acquiesced in, and

18 ratified, these raids by their acts and failures to act, including but not limited to granting

19 permission for Fresno to conduct these clean-up operations, with knowledge of the unlawful

20 and unconstitutional conduct by City officials in seizing and destroying the property of the

21 homeless during these raids on Caltrans property.

22

44. Such acts and omissions include but are not limited to the following: On

23 June 16, 2006, defendant Wallace of the Fresno Police Department sent an email to

24 defendant Glenn of Caltrans stating that Fresno would be conducting a “clean-up” operation

25 at Ventura and E St. on June 22 2006. Attached to the email was a memorandum from

26 defendant Capt. Garner of the Fresno Police Department to “All Campers on Ventura/E,”

27 which stated that any property not removed from the area “we will take as trash.” This

Heller 28 email was forwarded to the Caltrans Fresno Area Superintendent, defendant Province. As
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1 described below, the City did conduct an operation on Caltrans property on June 22, 2006,

2 and property of the homeless was unlawfully seized and destroyed. On June 23, 2006,

3 defendant Wallace sent another email to defendant Glenn, requesting a meeting with him or

4 his supervisor “to discuss a long term fix for the campers @ Ventura/E. as you know as

5 soon as we clean they come right back… our hands are somewhat tied being that it is Cal

6 Trans property and it’s a real eyesore for anyone entering the city from 99.” On August 25,

7 2006, Caltrans issued an encroachment permit which authorized the City to conduct a

8 cleanup operation and to construct a fence at the same location. As described above, the

9 City acted the following day pursuant to this permit and conducted a cleanup operation on

10 August 26, 2006, during which the property of the homeless was unlawfully seized and

11 destroyed. On information and belief, in addition to the property that was the subject of the

12 August 26, 2006 operation, Caltrans owns other property in the City of Fresno on which

13 homeless people live and/or keep their belongings.

14

45. Plaintiffs and members of the plaintiff Class have suffered the loss of

15 property, damage and treatment described in the foregoing paragraphs on one or more

16 occasions set forth above.

17

46. Plaintiff Pamela Kincaid’s personal property has been confiscated and

18 destroyed by Defendants on at least two occasions. Approximately one year ago, almost all

19 of her possessions were seized and destroyed in one of defendants’ raids, including her

20 identification; her birth certificate; her telephone/address book; and family photos, which

21 contained the only pictures she had of her sister, her daughter, and her deceased mother.

22 Approximately 2 months ago, defendants seized her shopping cart, a toolbox, and various

23 tools that she used to make crafts, such as jewelry and “dreamcatchers,” which she was able

24 to sell to make a little income. This property was not abandoned and it was obviously

25 valuable property. She was given no opportunity to save or retrieve her property.

26

47. Plaintiff Doug Deatherage’s personal property has been confiscated and

27 destroyed by Defendants on at least two occasions. On or around June 22, 2006, he and his

Heller 28 girlfriend had a tent on a strip of land between E Street and the highway in Fresno.
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1 Defendants arrived and began putting items in a dump truck, so plaintiff Deatherage moved

2 his and his girlfriend’s belongings to the other side of the street. Believing that his property

3 would be safe there because a police officer had told them it was okay to move their

4 belongings to that side of the street, plaintiff Deatherage left his girlfriend with their

5 belongings and went to the store. When he returned, their property had been confiscated,

6 and all attempts to move it again or save it had been summarily denied by the Fresno police.

7 In this raid, most of plaintiff Deatherage’s property was destroyed, including his tent; his

8 sleeping bag; all the clothes except the ones he was wearing at the time; shoes; a coat;

9 personal hygiene supplies; an antique stamp collection; and personal papers, including

10 letters from his family. On or about August 26, 2006, defendants confiscated and destroyed

11 nearly all of his remaining possessions in the same area, including clothes and shoes that he

12 had been able to acquire since the previous raid. Again, plaintiff Deatherage was given no

13 opportunity to save or retrieve his personal property.

14

48. Plaintiff Charlene Clay’s personal property has been seized and destroyed by

15 defendants on at least two occasions. Sometime during the first two weeks of April 2006,

16 she and her husband were staying on a hill off of G Street in Fresno. While they were at the

17 Poverello House, a local service provider, they heard that the City was taking people’s

18 property. Plaintiff Clay went as fast as she could to where she had left her belongings, but

19 when she arrived, almost everything she owned had already been seized, including: her

20 false teeth; her medications; a small TV and laptop computer; a bike; dog food; blankets

21 and sleeping bags; and her and her husband’s clothes and personal papers. Again on

22 October 8, 2006, she and her husband were under a bridge at San Benito and H Street.

23 Fresno police officers arrived without warning and confiscated homeless people’s shopping

24 carts and took them away.

25

49. Plaintiff Cynthia Greene has had some or all of her belongings seized by

26 Defendants approximately five times since January 2006. Property of plaintiff Greene’s

27 that Defendants have confiscated include: photographs of her deceased relatives (her father,

Heller 28 mother, and brother); bicycles; tent and bedding; and winter gear such as rain suits and an
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1 umbrella, resulting in her getting sick as a result of being out in the rain without any shelter.

2 In the last such raid, on or about August 27, 2006, defendants confiscated plaintiff Greene’s

3 belongings with a bulldozer truck, even as she and other homeless women were trying to

4 move their belongings. In this raid, the Fresno employees destroyed her property including

5 medication; her tent and blankets; her personal papers and identification; and her backpack.

6

50. Plaintiff Joanna Garcia has had her personal property confiscated and

7 destroyed by defendants on approximately five occasions since January 2006. The property

8 destroyed in these raids include: tents; blankets; personal papers; clothing; photographs of

9 her grandmother and her son; and a lock of her son’s hair. In the most recent raid, on or

10 about August 27, 2006, Fresno police officers seized and destroyed her property in the E

11 Street area, even as she was attempting to move it to save it from destruction. Items seized

12 and destroyed by defendants in this raid included: medication, including inhalers for asthma

13 and antibiotics; food; tents and sleeping bags.

14

51. Plaintiff Randy Johnson, Sr. had his personal property confiscated by

15 defendants in April 2006. During this raid, Fresno city employees seized and destroyed his

16 shopping cart, which had in it such items as: blood pressure medication; clothing; blankets;

17 and family photographs.

18

Requisites for Relief

19

52. Defendants’ policies, actions and conduct have resulted and will result in

20 irreparable injury to plaintiffs. Plaintiffs have no plain, adequate or complete remedy at law

21 to address the wrongs described herein. Defendants have made it plain by their actions, the

22 ongoing nature of their activities, and their public statements that they intend to continue the

23 unlawful conduct described above. Defendant City of Fresno has a policy and practice of

24 confiscating and destroying the personal property of plaintiffs and members of the plaintiff

25 class without legal basis and the remaining defendants have and will continue to participate

26 in implementing this policy and practice unless and until restrained by an injunctive decree

27 of this Court.

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1

53. The acts of defendants as alleged above constituted violations of established

2 constitutional rights of plaintiffs, and defendants could not reasonably have thought that

3 their conduct in intentionally seizing and immediately destroying all of plaintiffs’ personal

4 property as alleged herein was consistent with plaintiffs’ constitutional rights.

5

54. An actual controversy exists between plaintiffs and defendants in that

6 defendants have engaged in the unlawful and unconstitutional conduct as alleged herein and

7 intend to continue this unlawful conduct as an ongoing practice and policy of Fresno

8 whereas plaintiffs claim that these practices are unlawful and unconstitutional and therefore

9 seek a declaration of rights with respect to this controversy.

10

55. As a direct and proximate result of the unconstitutional and unlawful

11 policies, practices and conduct of defendants, plaintiffs and members of the plaintiff class

12 have suffered, and will continue to suffer damages, including but not limited to deprivation

13 and destruction of property, including clothing, bedding, medication, personal documents

14 and other personal possession, leaving them without their essential personal belongings

15 necessary for shelter, health, well-being and personal dignity.

16

56. The acts of defendants were willful, wanton, malicious, and oppressive and

17 done with conscious disregard and deliberate indifference for plaintiffs and their rights.

18

57. Plaintiffs have filed administrative claims with the City of Fresno pursuant

19 to California Government Code § 910 et seq.

20

First Claim for Relief

(Denial of Constitutional Right Against Unreasonable Search and Seizure- Fourth

21

Amendment)

22 58. Plaintiffs reallege and incorporate here paragraphs 1 through 55 above, as
23 though fully set forth.
24 59. Defendants’ above-described policies, practices and conduct violate
25 plaintiffs’ right to be free from unreasonable searches and seizures under the Fourth
26 Amendment to the United States Constitutional and 42 U.S.C. § 1983.
27

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1

Second Claim for Relief

(Denial of Constitutional Right to Due Process of Law- Fourteenth Amendment) 2

60. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

3

though fully set forth.

4

61. Defendants’ above-described policies, practices and conduct violate

5

plaintiffs’ right to due process of law under the Fourteenth Amendment of the United States

6

Constitution and 42 U.S.C. § 1983.

7

Third Claim for Relief

8

(Denial of Constitutional Right to Equal Protection of the Laws – Fourteenth

9

Amendment)

10

62. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

11 though fully set forth.

12

63. Defendants’ above-described policies, practices and conduct are intended

13 and designed to single out homeless people and have the purpose and effect of depriving

14 homeless people of their property and of driving homeless people from the City of Fresno.

15 These policies and actions are based on defendants’ animus towards this disfavored group

16 and lacks a rational relationship to any legitimate governmental interest. In adopting and

17 implementing these policies and practices with the intent to harm and disadvantage

18 homeless persons in the City of Fresno, the defendants have violated the Equal Protection

19 Clause of the United States Constitution and 42 U.S.C. § 1983.

20

Fourth Claim for Relief

21

(Denial of Constitutional Right Against Unreasonable Search and Seizure California Constitution, Article 1, § 13)

22

64. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

23 though fully set forth.

24

65. Defendants’ above-described policies, practices and conduct violated

25 plaintiffs’ right to be free from unreasonable searches and seizures under Article 1, § 13 of

26 the California Constitution.

27

Heller

28

Ehrman LLP

16

Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 17 of 21

1

Fifth Claim for Relief

2

(Denial of Constitutional Right to Due Process of Law- California Constitution, , Article 1, § 7(A))

3

66. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

4 though fully set forth.

5

67. Defendants’ above-described policies, practices and conduct violate

6 plaintiffs’ right to due process of law under Article 1, § 7(A) of the California Constitution.

7

8

Sixth Claim for Relief

(Denial of Constitutional Right to Equal Protection of the Laws – California

9

Constitution, Article 1, § 7(A))

10

68. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

11 though fully set forth.

12

69. Defendants’ above-described policies, practices and conduct were and are

13 intended and designed to single out homeless people and have the purpose and effect of

14 depriving homeless people of their property and of driving homeless people from the City 15 of Fresno. These policies and actions are based on defendants’ animus towards this

16 disfavored group and lacks a rational relationship to any legitimate state interest. In

17 adopting and implementing these policies and practices with the intent to harm and

18 disadvantage homeless persons in the City of Fresno, the defendants have violated the Equal

19 Protection Clause of the California Constitution, Article 1, § 7(A).

20

21

22

23

24

25

26

27

Heller

28

Ehrman LLP

Seventh Claim for Relief (California Civil Code § 2080 et seq. and Government Code § 815.6) 70. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as though fully set forth. 71. Defendants’ above-described policies, practices and conduct violated California Civil Code § 2080 et seq., in that, among other things, defendants have failed to safeguard the personal property of plaintiffs and members of the plaintiff Class found on public land, failed to inform the owners of the personal property within a reasonable time of finding this property, failed to document the property found, and failed to make restitution

17

Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 18 of 21

1 of the property to its owners or to make arrangements to permit them to retrieve it all of

2 which are mandatory duties under Code of Civil Procedure § 2080 for which defendants are

3 liable and defendant public entities are liable under Government Code § 815.6.

4

Eighth Claim for Relief

(California Civil Code § 52.1) 5
72. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

6 though fully set forth.

7

73. Defendants’ above-described policies, practices and conduct constitute

8

interference, and attempted interference, by threats, intimidation and coercion, with

9

plaintiffs’ exercise and enjoyment of rights secured the Constitutions and laws of the United

10

States and California, in violation of California Civil Code § 52.1.

11

Ninth Claim for Relief

12

(Common Law Conversion)

13

74. Plaintiffs reallege and incorporate here in paragraphs 1 through 55 above, as

14 though fully set forth.

15

75. Plaintiffs were at all relevant times the owners of personal property

16 confiscated and destroyed by defendants as alleged above. Plaintiffs remain entitled to the

17 possession of their personal property. The personal property confiscated and destroyed by

18 defendants included tents, clothing, medication, medical devices, prescriptions, personal

19 items and documents, all of which were particularly valuable to plaintiffs in part because

20 these belongings amounted to much if not all of the relatively few possessions that plaintiffs

21 owned.

22

76. Defendants’ above-described policies, practices and conduct denied

23 plaintiffs the possession of their property and constituted an unlawful conversion of that

24 property to the possession and control of defendants. Defendants have since refused to

25 return this personal property to plaintiffs, but instead have destroyed this property.

26

27

Heller

28

Ehrman LLP

18

Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 19 of 21

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Heller

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Ehrman LLP

Prayer for Relief WHEREFORE, plaintiffs seek relief from this Court the as follows:
1. For an order certifying the proposed plaintiff class, together with any necessary and appropriate subclasses under Federal Rule of Civil Procedure 23;
2. For a temporary restraining order, preliminary injunction and permanent injunction, enjoining and restraining defendants from continuing or repeating the unlawful policies, practices and conduct complained of herein;
3. For a declaratory judgment that defendants’ policies, practices and conduct as alleged herein were in violation of plaintiffs’ rights under the United States Constitution, the California Constitution, the laws of the United States and the laws of California;
4. For the return of plaintiffs’ property; 5. For damages in amount according to proof but in no event less than $4,000
per incident under California Civil Code §§ 52 and 52.1 and Cal. Government § 815.6; 6. For punitive and exemplary damages to be determined in accordance with proof; 7. For attorneys fees as provided by law; 8. For costs of suit; and 9. For such other and further relief as the Court may deem just and proper.

19

Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 20 of 21

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Ehrman LLP

Respectfully submitted, HELLER EHRMAN LLP LAWYERS’ COMMITTEE FOR CIVIL RIGHTS ACLU FOUNDATION OF NORTHERN CALIFORNIA
By /s/ Paul Alexander Paul Alexander Attorneys for Plaintiffs

20

Case 1:06-cv-01445-OWW-SMS Document 99 Filed 02/07/07 Page 21 of 21

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21

 
 1 HELLER EHRMAN LLP PAUL ALEXANDER (SBN 49997)
2 MELYSSA E. MINAMOTO (SBN 245458) 275 Middlefield Rd.
3 Menlo Park, CA 94025-3506 Telephone: (650) 324-7000
4 Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com
5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
6 OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)
7 131 Steuart Street San Francisco, CA 94105
8 Telephone: (415) 543-9444 Facsimile: (415) 543-0296
9 E-mail: osellstrom@lccr.com

10 ACLU OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER (SBN 49957)
11 MICHAEL T. RISHER (SBN 191627) 39 Drumm Street
12 San Francisco, CA 94111 Telephone: (415) 621-2493
13 Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org
14

15

UNITED STATES DISTRICT COURT

16

17

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

18

19

Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy

20

Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson, Individually on Behalf of

21 Themselves and All Others Similarly Situated,

22

v.

Plaintiff,

23 City of Fresno, Alan Autry, Jerry Dyer, Greg

24

Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, Daryl

25

Glenn, Individually and in Their Official Capacities; DOES 1-100, inclusive,

26

Defendant.

27

Civil Action No.: 06-CV-1445-OWW CLASS ACTION ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY AGAINST THE CITY DEFENDANTS

28

[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART
PDF created wPitLhAIpNdTfIFFaFcS’toMryOTtrIiOaNl vFeOrRsiSoUnMwMwAwRY.pJdUfDfaGcMtoErNy.Tcom

1

2

Plaintiffs’ motion for summary judgment came before this Court for hearing in Courtroom 3

on April 25, 2008 at 2:00 p.m. Paul Alexander, Michael T. Risher and Elisa Della-Piana appeared 3
on behalf of Plaintiffs and the Plaintiff Class. Joseph D. Rubin appeared on behalf of defendants

4 the City of Fresno, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers and Phillip Weathers

5 (collectively the “City Defendants”). David P. Harris appeared on behalf of defendants James

6 Province and Daryl Glenn.

7

Having fully considered the evidence and the written and oral submissions by the parties,

8 Plaintiffs’ motion for summary judgment as to liability against the City Defendants is GRANTED IN PART AND DENIED IN PART:
9 (1) Plaintiffs’ motion is GRANTED as to Defendant the City of Fresno in that the 14
10 sweeps identified at pages 6-7 of the Court’s May 12, 2008 Memorandum Decision and Order were

11 conducted pursuant to an official policy and practice of the City that was in violation of the Fourth

12 Amendment of the U.S. Constitution;

13

(2) Plaintiffs’ motion is GRANTED as to Defendant the City of Fresno in that Plaintiffs will

14 establish a violation of the Fourth Amendment of the U.S. Constitution as a matter of law by

demonstrating at trial that the City Defendants seized and immediately destroyed the personal 15

property of Plaintiffs;

16

(3) Plaintiffs’ motion is GRANTED as to Defendant the City of Fresno in that Plaintiffs

17 will establish a violation of equal protection under the Fourteenth Amendment by demonstrating at

18 trial that homeless persons’ personal property was seized and immediately destroyed while the

19 personal property of others outside the class was not;

20

(4) Plaintiffs’ motion is GRANTED as to Defendant the City of Fresno in that California

21 Civil Code § 2080.2 is determined to provide a private right of action against Defendant the City of

Fresno;

22

(5) Plaintiffs’ motion is DENIED in all other respects.

23

24 IT IS SO ORDERED.
25

26 Dated: May 19, 2008 27 28

/s/ OLIVER W. WANGER UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF CALIFORNIA

2
[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART
PDF created wPitLhAIpNdTfIFFaFcS’toMryOTtrIiOaNl vFeOrRsiSoUnMwMwAwRY.pJdUfDfaGcMtoErNy.Tcom

 
 1 BRUCE A. BEHRENS, Chief Counsel THOMAS C. FELLENZ, Deputy Chief Counsel
2 RONALD W. BEALS, Assistant Chief Counsel DAVID P. HARRIS, (Bar No. 158511)
3 MATTHEW B. GEORGE (Bar No. 210032) NAVTEJ S. BASSI (Bar No. 188406)
4 1120 N Street (MS 57) P.O. Box 1438 Sacramento, California 95812-1438
5 Telephone: (916) 654-2630 Facsimile: (916) 654-6128
6 david.harris@dot.ca.gov

7 Attorneys for Defendants Will Kempton, James Province, and Daryl Glenn

8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
10

11 PAMELA KINCAID, etc., et al.,
12 13
Plaintiffs, 14 15
vs. 16 17
CITY OF FRESNO, et al., 18 19
Defendants. 20 21 22 23 24 25

) Case No.: 1:06-CV-01445-OWW-SMS

)

) ORDER:

)

) (1) DENYING DEFENDANT WILL

)

KEMPTON’S MOTION FOR

)

SUMMARY JUDGMENT;

)

) (2) DENYING PLAINTIFFS’

)

MOTION FOR SUMMARY

)

JUDGMENT AS TO

)

DEFENDANTS JAMES

)

PROVINCE AND DARYL

)

GLENN;

)

) AND

)

) (3) GRANTING DEFENDANTS

)

JAMES PROVINCE AND

)

DARYL GLENN’S MOTION

)

FOR SUMMARY JUDGMENT

)

AS TO THE STATE LAW

)

CLAIMS FOR DAMAGES

)

ASSERTED AGAINST THEM

)

AND DENYING THE MOTION

)

ON ALL OTHER GROUNDS.

)

26

On April 25, 2008, before U. S. District Court Judge, the Hon. Oliver W. Wanger, the

27 following motions were heard:
28

1. Defendant Will Kempton’s motion for summary judgment;

-1ORDER
PDF created with pdfFactory trial version www.pdffactory.com

1

2. Plaintiffs’ motion for summary judgment as to liability against Defendants James

2

Province and Daryl Glenn; and

3

4

3. Defendants Province and Glenn’s motion for summary judgment.

5

Plaintiffs were represented by Paul Alexander and others, City Defendants were

6 represented by James Rubin, and Defendants Kempton, Province, and Glenn were represented
7 8 by David P. Harris.

9

Following presentation of oral argument, and after the Court’s consideration of all oral

10 and written evidence and argument present, the Court, finding good cause therefor, hereby

11 orders as set forth below.
12

13

IT IS HEREBY ORDERED that:

14

A. Defendant Kempton’s motion for summary judgment is DENIED;

15

B. Plaintiffs’ motion for summary judgment against Defendants Province and Glenn is

16 DENIED;

17

C. Defendants Province and Glenn’s motion for summary judgment is GRANTED as to

18 the state law claims for damages asserted against them, specifically, the fifth, sixth, seventh, and

19 eighth claims for relief in the Second Amended Complaint on file herein; AND

20

D. Defendants Province and Glenn’s motion for summary judgment is DENIED on all

21 other grounds.

22

23

IT IS SO ORDERED.

24 DATED: May 19, 2008

25

26

27

/s/ OLIVER W. WANGER

OLIVER W. WANGER

28

U. S. District Court Judge

-2ORDER
PDF created with pdfFactory trial version www.pdffactory.com

 
 1 HOWREY LLP

PAUL ALEXANDER (SBN 49997)

2

1950 University Ave., 4th Floor East Palo Alto, CA 94303

3

Telephone: (650) 798-3500 Facsimile: (650) 798-3600

4 E-mail: alexanderp@howrey.com

5

HELLER EHRMAN LLP ROBERT B. HAWK (SBN 118054)

MELYSSA E. MINAMOTO (SBN 245458)

6 ERIC LLOYD (SBN 254390)

275 Middlefield Rd.

7 Menlo Park, CA 94025-3506

Telephone: (650) 324-7000

8

Facsimile: (650) 324-0638 E-mail: robert.hawk@hellerehrman.com

9 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)

131 Steuart Street
11 San Francisco, CA 94105

Telephone: (415) 543-9444

12 Facsimile: (415) 543-0296
E-mail: osellstrom@lccr.com

13 ACLU OF NORTHERN CALIFORNIA

14

ALAN L. SCHLOSSER (SBN 49957) MICHAEL T. RISHER (SBN 191627)

15

39 Drumm Street San Francisco, CA 94111

16

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

E-mail: mrisher@aclunc.org
17
UNITED STATES DISTRICT COURT

18

19

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

20

21

22

23

24

25

26

27

28

[PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

1

2 Pamela Kincaid, Doug Deatherage, Charlene Clay,
Cynthia Greene, Joanna Garcia, Randy Johnson,
3 Sandra Thomas, Alphonso Williams, and Jeannine
Nelson, Individually on Behalf of Themselves and
4 All Others Similarly Situated,

5
v.

Plaintiff,

6 City of Fresno, Alan Autry, Jerry Dyer, Greg

7

Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, Daryl

8

Glenn, Individually and in Their Official Capacities; DOES 1-100, inclusive,

9

Defendant.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Civil Action No.: 06-CV-1445-OWW CLASS ACTION
FINAL ORDER APPROVING SETTLEMENT

2
PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

11

WHEREAS the Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia

2 Greene, Joanna Garcia, Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson,

3 on behalf of themselves and each Plaintiff Settlement Class Member (as defined herein), by and

4 through their counsel of record, have asserted claims for damages and injunctive relief against the

5 City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

6 Weathers (collectively the “City Defendants”), Will Kempton, James Province and Daryl Glenn

7 (collectively the “Caltrans Defendants”), alleging violations of federal and state constitutional

8 rights as well as violations of applicable state law;

9

WHEREAS the Plaintiffs and the City Defendants and the Caltrans Defendants, respectively

10 entered into and executed separate Settlement Agreements and an associated Settlement Plan which

11 have been filed with the Court; and

12

WHEREAS, the Court held a status conference re Settlement on June 6, 2008 where the

13 Court found the proposed settlement reasonable and fair and preliminary settlement was granted;

14 and

15

WHEREAS, the Court held a further hearing on June 10, 2008, at which hearing each of the

16 City Defendants formally and in open Court agreed to the Settlement Agreement with the City

17 Defendants and counsel for all parties indicated to the Court that they regarded the Settlement

18 Agreement as binding; and

19

WHEREAS, the Court preliminarily approved the Settlement Agreements, Settlement Plan,

20 Notice and Notice Procedure in an Order dated June 13, 2008; and

21

WHEREAS, it appears the Notice of the Settlement has been provided to the class as called

22 for by the Court’s Order Granting Preliminary Approval; and

23

WHEREAS, the Plaintiffs have filed with the Court a Motion for Final Approval of the

24 Settlement Agreements, together with supporting documents, which include a Settlement Plan for

25 providing notice of the Settlement Agreements to the Class, a plan for administering the settlement,

26 and a claim form; and

27

WHEREAS, the Court has considered the Settlement Agreement between the Plaintiffs and

28 the City Defendants, the Settlement Agreement between the Plaintiffs and the Caltrans Defendants,

1
PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

1 and the pleadings and documents submitted in connection with the parties’ request for final

2 approval of the Settlement Agreement, and good cause appearing therefore; and

3

WHEREAS, in light of the nature of the Class and difficulties in ensuring that all valid

4 claims have been made and received by July 18, 2008, and it appearing that an additional 28 days

5 within which the Settlement Administrator would have the authority and discretion to receive claim

6 forms and deem them valid would be in the interests of justice; and

7

WHEREAS, the Court held a hearing on July 25, 2008 to consider the final approval of the

8 Settlement Agreement with the City Defendants, the Settlement Agreement with the Caltrans

9 Defendants, and the Settlement Plan, and any objection to the foregoing filed before or at the time

10 of the hearing;

11

12

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

13
1. This Court has jurisdiction over this action and each of the parties in this action.
14
2. The Court finds that the Settlement Agreement with the City Defendants, the
15
Settlement Agreement with the CalTrans defendants, and the Settlement Plan appear to have
16
resulted from arms-length negotiations by and among counsel who were reasonably skilled and
17
prepared and who represented the best interests of their respective clients in negotiating the
18
Settlement Agreement and the Settlement Plan. The settlement negotiations that led to the
19
Settlement Agreements took place in a mediation session supervised by Magistrate Judge Snyder.
20
This provides the Court with further assurance that the negotiations leading to the Settlement
21
Agreements and Settlement Plan were good faith, arms-length negotiations, which appropriately
22
considered the risks of trial, the potential recovery, and all other relevant factors leading to the
23
Settlement Agreements.
24
3. Based on all the facts and circumstances, the Court finds that Settlement Agreement
25
with the City Defendants, the Settlement Agreement with the Caltrans Defendants, and the
26
Settlement Plan incorporated in those Settlement Agreements, are fair, reasonable and adequate and
27
in the best interests of the members of the Plaintiff Class.
28

2
PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

1

4. The Court further finds that the incentive payment of $1,000 for each of the eight

2 named plaintiffs who have served as class representatives, in addition to any other consideration

3 they may receive under the Settlement Agreements, is fair and reasonable, in light of the numerous

4 court hearings that the class representatives have attended, their attendance at numerous meetings

5 with Class counsel, their personal efforts to give notice of the lawsuit and information about the

6 lawsuit to potential class members, and their personal efforts on behalf of the class.

7

5. The Court further finds that the attorneys’ fees and costs provisions in the Settlement

8 Agreement with the City Defendants were reached after the primary terms of that settlement were

9 reached and were also the product of arms-length and good faith negotiations near the end of the

10 mediation session supervised by Magistrate Judge Snyder. The attorneys fees and costs provisions

11 appear to take into consideration the right of counsel for the Class to seek an award of fees that

12 would be substantially higher than the amount agreed do, the risks of trial, and all other relevant

13 factors. The attorneys fees and costs are paid as additional consideration and are not taken from the

14 consideration paid to the Class. The Court therefore approves the provisions for attorneys fees and

15 costs contained in the Settlement Agreement with the City Defendants.

16

6. The Court further finds the Notice and Notice Plan was reasonably calculated to

17 apprise the Class of the pendency of this action and all material elements of the proposed

18 settlement, constituted the best notice practicable under the circumstances, and constituted due and

19 sufficient notice. The Court further finds that it would be in the interests of justice to allow the

20 Settlement Administrator an additional 28 days, to and including August 15, 2008, in which to have

21 the authority to receive and deem valid claim forms seeking to participate in the settlement.

22

23

WHEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

24

1. The Settlement Agreement with the City Defendants, the Settlement Agreement with the

25 Caltrans Defendants, and the Settlement Plan incorporated therein are hereby ordered approved as

26 fair, reasonable, and in the best interests of the Class. The aforementioned Settlement Agreements

27 have the full force and effect of an order of this Court, and the Settling Parties are directed to

28 implement the Settlement Agreements in accordance with their respective terms and conditions,

3
PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

1 provided however that the Settlement Administrator shall have the authority to receive and deem

2 valid claim forms that are received on or before August 22, 2008.

3

2. The Court, having finally approved the provision for attorneys fees and costs in the

4 Settlement Agreement with the City Defendants, hereby orders that these fees and costs be paid in

5 accordance with that Agreement.

6

3. In accordance with the Settlement Agreements, this action is hereby dismissed with

7 prejudice and the Plaintiffs are barred from future prosecution of their claims without affecting the

8 finality of this Order; however, the Court retains jurisdiction for the purposes of enforcing the

9 Settlement Agreements as provided in clause 3.4.3 of the Settlement Agreement with the City

10 Defendants and clause 3.4.3 of the Settlement Agreement with the Caltrans Defendants.

11

4. Under Rule 54 of the Federal Rules of Civil Procedure, the Court, in the interests of

12 justice, there being no just reason for delay, expressly directs the Clerk of the Court to enter this

13 Final Approval Order and Order.

14

15 IT IS SO ORDERED.

16

17 Dated this 25th day of July, 2008.

18

19

20

21

/s/ Hon.

22

United

OLIVER W. WANGER Oliver W. Wanger States District Judge

23

24

25

26

27

28

4
PROPOSED] FINAL ORDER APPROVING SETTLEMENT, CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21337762_1

 
 1 HOWREY LLP

PAUL ALEXANDER (SBN 49997)

2

1950 University Ave., 4th Floor East Palo Alto, CA 94303

3

Telephone: (650) 798-3500 Facsimile: (650) 798-3600

4 E-mail: alexanderp@howrey.com

5

HELLER EHRMAN LLP ROBERT B. HAWK (SBN 118054)

MELYSSA E. MINAMOTO (SBN 245458)

6 ERIC LLOYD (SBN 254390)

275 Middlefield Rd.

7 Menlo Park, CA 94025-3506

Telephone: (650) 324-7000

8

Facsimile: (650) 324-0638 E-mail: robert.hawk@hellerehrman.com

9 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)

131 Steuart Street
11 San Francisco, CA 94105

Telephone: (415) 543-9444

12 Facsimile: (415) 543-0296
E-mail: osellstrom@lccr.com

13 ACLU OF NORTHERN CALIFORNIA

14

ALAN L. SCHLOSSER (SBN 49957) MICHAEL T. RISHER (SBN 191627)

15

39 Drumm Street San Francisco, CA 94111

16

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

E-mail: mrisher@aclunc.org
17
UNITED STATES DISTRICT COURT

18

19

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

20

21

22

23

24

25

26

27

28

[PROPOSED] JUDGMENT CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21369882_1

1

2 Pamela Kincaid, Doug Deatherage, Charlene Clay,
Cynthia Greene, Joanna Garcia, Randy Johnson,
3 Sandra Thomas, Alphonso Williams, and Jeannine
Nelson, Individually on Behalf of Themselves and
4 All Others Similarly Situated,

5
v.

Plaintiff,

6 City of Fresno, Alan Autry, Jerry Dyer, Greg

7

Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, Daryl

8

Glenn, Individually and in Their Official Capacities; DOES 1-100, inclusive,

9

Defendant.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
2
[PROPOSED] JUDGMENT CIVIL ACTION NO. 06-CV-1455-OWW
DM_US:21369882_1

Civil Action No.: 06-CV-1445-OWW CLASS ACTION
JUDGMENT UPON APPROVAL OF SETTLEMENT AND ORDER FOR ENTRY OF JUDGMENT

11

This Court having considered the Settlement Agreement with defendants City of Fresno,

2 Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, Phillip Weathers, and the Settlement

3 Agreement with defendants Will Kempton, James, Province, and Daryl Glenn, and the Settlement

4 Plan incorporated therein, all of which were submitted to the Court on July 25, 2008 and having

5 determined that the Settlement Agreements and the Settlement Plan should be approved as fair,

6 reasonable and adequate under the provisions of Federal Rule 23(e), at the hearing on Plaintiffs’

7 Motion For Final Approval Of Settlement on July 25, 2008, and having issued its Final Order

8 Approving Settlement on July 25, 2008, and good cause appearing,

9

IT IS HEREBY ADJUDGED AND DECREED AS FOLLOWS:

10

1. The terms of the Final Order Approving Settlement, a copy of which is attached hereto, is

11 hereby determined to be the Judgment of this Court.

12

2. There being no cause for delay, the Clerk of the Court is hereby directed to enter this

13 Judgment immediately, with the further provision that it be deemed effective as of July 25, 2008.

14

15 Dated this 29th day of July, 2008.

16

17

18

19

/s/ Hon.

20

United

OLIVER W. WANGER Oliver W. Wanger States District Judge

21

22

23

24

25

26

27

28

[PROPOSED] JUDGMENT

1

CIVIL ACTION NO. 06-CV-1455-OWW

DM_US:21369882_1

 
 Case 1:06-cv-01445-OWW-SMS Document 36 Filed 10/25/2006 Page 1 of 2

1 HELLER EHRMAN LLP

2

PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road

3

Menlo Park, CA 94025-3506 Telephone: (650) 324-7000

4

Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

6

OREN SELLSTROM (SBN: 161074) ELISA DELLA-PIANA (SBN: 226462)

7

131 Steuart Street San Francisco, CA 94105

8

Telephone: (415) 543-9444 Facsimile: (415) 543-0296

9 E-mail: osellstrom@lccr.com

10

ACLU OF NORTHERN CALIFORNIA ALAN SCHLOSSER (SBN: 49957)

11

MICHAEL T. RISHER (SBN: 191627) 39 Drumm Street

12

San Francisco, CA 94111 Telephone: (415) 621-2493

13

Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org

14

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

17

18 Pamela Kincaid, Doug Deatherage, Charlene

19

Clay, Cynthia Greene, Joanna Garcia, and Randy Johnson, Individually on Behalf of

20

Themselves and All Others Similarly Situated, Plaintiffs,

21

v.

22 City of Fresno, California Department of

23

Transportation, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

24

Weathers, and Will Kempton, individually and in their official capacities; DOES 1-100,

25 inclusive,

Case No.: 1:06-CV-1445-OWW-SMS TEMPORARY RESTRAINING ORDER AND ORDER RE PRELIMINARY INJUNCTION HEARING

26

Defendants.

27

Heller

28

Ehrman LLP

PDF created with pdfFactory trial version www.pdffactory.com

Case 1:06-cv-01445-OWW-SMS Document 36 Filed 10/25/2006 Page 2 of 2

1

Having considered plaintiffs’ complaint, memorandum of points and authorities,

2 declarations and related documentation submitted by the parties,

3

IT IS HEREBY ORDERED AS FOLLOWS:

4

1. Pending development of a full evidentiary record at a hearing on motion for

5 preliminary injunction, the City of Fresno, and its Police Department, and all those acting

6 for, under and/or in concert with them or who have actual notice of this order, are

7 temporarily restrained and enjoined from immediately destroying the property of homeless

8 persons during protective sweeps, activities to remove homeless persons from temporary

9 shelter sites, or other activities to seize the personal property of homeless persons, without

10 providing constitutionally adequate notice and meaningful opportunity to be heard

11 concerning the seizure and destruction of such personal property.

12

2. Defendant City of Fresno shall file and serve its opposition to plaintiffs’ Motion

13 for Preliminary Injunction on or before November 1, 2006. Plaintiffs’ shall file and serve

14 any Reply to this response on or before November 6, 2006. A hearing is hereby set for

15 consideration of the Motion for Preliminary Injunction for November 7, 2006, commencing

16 at 9:00 a.m.before Judge Oliver W. Wanger unless otherwise ordered.

17

3. Pending the hearing on the Motion for Preliminary Injunction, plaintiffs are

18 exempted from the requirement to post a bond.

19

20 Dated: 10/25/2006

/s/ Oliver W. Wanger

21

Oliver W. Wanger

22

United States District Judge

23

24

25

26

27

Heller

28

Ehrman LLP

PDF created with pdfFactory trial version www.pdffactory.com

 
 1 HELLER EHRMAN LLP PAUL ALEXANDER (SBN 49997)
2 MELYSSA E. MINAMOTO (SBN 245458) 275 Middlefield Rd.
3 Menlo Park, CA 94025-3506 Telephone: (650) 324-7000
4 Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com
5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
6 OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)
7 131 Steuart Street San Francisco, CA 94105
8 Telephone: (415) 543-9444 Facsimile: (415) 543-0296
9 E-mail: osellstrom@lccr.com

10 ACLU OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER (SBN 49957)
11 MICHAEL T. RISHER (SBN 191627) 39 Drumm Street
12 San Francisco, CA 94111 Telephone: (415) 621-2493
13 Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org
14

15

UNITED STATES DISTRICT COURT

16 EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION
17

18

Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy

19

Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson, Individually on Behalf of

20 Themselves and All Others Similarly Situated,

21

v.

Plaintiff,

22 City of Fresno, Alan Autry, Jerry Dyer, Greg

23

Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, Daryl

24

Glenn, Individually and in Their Official Capacities; DOES 1-100, inclusive,

Civil Action No.: 06-CV-1445-OWW ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION AND PLAN FOR DISTRIBUTION OF CLASS NOTICE

25

Defendant.

26

27

28
Heller Ehrman LLP
[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION AND PLAN FOR DISTRIBUTION OF
PDF created wCitLhApSdSfNFOaTcItCoEry trial version www.pdffactory.com

1

This matter came before the Court at a Hearing on Class Notice on September 17,

2 2007, at 11:00 a.m., pursuant to this Court’s Decision And Order Granting Plaintiffs’

3 Motion To Certify Class of August 14, 2007.

4

Approval of the form and content of the Class Notice is HEREBY GRANTED

5 and IT IS HEREBY ORDERED as follows:

6

1. Proposed Form and Content of Notice. On September 17, 2007, at 11:00

7 a.m., all parties appeared before the Court for the Hearing on Class Notice. The Class

8 Notice attached as Exhibit A shall be distributed to Class Members as a one-page notice

9 with text on both sides of the page, and an attached form of election to be excluded from the

10 Class. This Notice shall also be translated into Spanish, which all Defendants shall have the

11 opportunity to review prior to distribution.

12

2. Plan for Communicating Notice to the Class. Plaintiffs shall distribute the

13 Notice in the following manner:

14

(a) Plaintiffs shall make a reasonable and diligent effort to personally

15 provide the Notice to potential class members at the tents or other shelters of homeless

16 people that can be located with reasonable effort in the City of Fresno;

17

(b) Plaintiffs shall provide copies of the Notice to the St. Benedict Catholic

18 Worker, the Poverello House, Naomi’s House and the Fresno Rescue Mission for

19 distribution to homeless persons who come into contact with those organizations;

20

(c) Plaintiffs shall publish the Notice in the Community Alliance, a free

21 newspaper that is generally distributed to and read by homeless persons, among others; and

22

(d) To the extent that Class Members have a known mailing address,

23 Plaintiffs shall mail the Notice to that known address by first class mail.

24

3. Timing of Notice. Plaintiffs shall begin providing notice in the manner

25 described above within five (5) days after receiving the Court’s Order approving the form

26 and content of the Notice and will complete their efforts to provide notice within

27 approximately sixty (60) days thereof. Plaintiffs’ counsel shall advance the costs of notice,

28 which they will claim as a recoverable cost in this matter.

Heller

2

Ehrman LLP

[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION AND PLAN FOR DISTRIBUTION OF

PDF created wCitLhApSdSfNFOaTcItCoEry trial version www.pdffactory.com

1

4. Certification That Notice Has Been Completed. Within thirty (30) days of

2 the conclusion of the mailing, distribution, posting, and publishing of all notice, Class

3 Counsel shall file and serve a sworn declaration specifying that Class Notice has been

4 provided to members of the Class in the manner identified in Section Two supra.

5

5. Administration of Notice. Class Counsel shall record any opt-outs that are

6 received and maintain copies of any opt-out forms that are received. Class Counsel shall

7 notify the Court and the Defendants of the identity of any potential Class member who

8 requests to opt out as a Class member. Class Counsel shall retain copies of any

9 communications it receives in response to the Class Notice until the final conclusion of the

10 litigation. The Class may apply to seek and send supplemental notice in the event that

11 additional potential Class members are discovered who should be included in the Class as

12 approved by the Court’s Order dated August 14, 2007.

13

6. Miscellaneous. To avoid confusion among class members, and by the

14 agreement of all parties, this case shall remain titled Kincaid, et al. v City of Fresno, et al. ,

15 despite Ms. Kincaid’s death.

16 17 IT IS SO ORDERED.

18 Dated: September 28, 2007
19
20

_/s/ OLIVER W. WANGER____ UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

Heller

3

Ehrman LLP

[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION AND PLAN FOR DISTRIBUTION OF

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1

[Exhibit A]

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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Heller

4

Ehrman LLP

[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION AND PLAN FOR DISTRIBUTION OF

PDF created wCitLhApSdSfNFOaTcItCoEry trial version www.pdffactory.com

 
 1 BRUCE A. BEHRENS, Chief Counsel THOMAS C. FELLENZ, Deputy Chief Counsel
2 RONALD W. BEALS, Assistant Chief Counsel DAVID P. HARRIS, (Bar No. 158511)
3 MATTHEW B. GEORGE (Bar No. 210032) NAVTEJ S. BASSI (Bar No. 188406)
4 1120 N Street (MS 57) P.O. Box 1438 Sacramento, California 95812-1438
5 Telephone: (916) 654-2630 Facsimile: (916) 654-6128
6 david.harris@dot.ca.gov

7 Attorneys for Defendants Will Kempton, James Province, and Daryl Glenn

8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
10

11 PAMELA KINCAID, etc., et al.,
12 13
Plaintiffs, 14 15
vs. 16 17
CITY OF FRESNO, et al., 18 19
Defendants. 20 21 22 23 24 25

) Case No.: 1:06-CV-01445-OWW-SMS

)

) ORDER:

)

) (1) DENYING DEFENDANT WILL

)

KEMPTON’S MOTION FOR

)

SUMMARY JUDGMENT;

)

) (2) DENYING PLAINTIFFS’

)

MOTION FOR SUMMARY

)

JUDGMENT AS TO

)

DEFENDANTS JAMES

)

PROVINCE AND DARYL

)

GLENN;

)

) AND

)

) (3) GRANTING DEFENDANTS

)

JAMES PROVINCE AND

)

DARYL GLENN’S MOTION

)

FOR SUMMARY JUDGMENT

)

AS TO THE STATE LAW

)

CLAIMS FOR DAMAGES

)

ASSERTED AGAINST THEM

)

AND DENYING THE MOTION

)

ON ALL OTHER GROUNDS.

)

26

On April 25, 2008, before U. S. District Court Judge, the Hon. Oliver W. Wanger, the

27 following motions were heard:
28

1. Defendant Will Kempton’s motion for summary judgment;

-1ORDER
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1

2. Plaintiffs’ motion for summary judgment as to liability against Defendants James

2

Province and Daryl Glenn; and

3

4

3. Defendants Province and Glenn’s motion for summary judgment.

5

Plaintiffs were represented by Paul Alexander and others, City Defendants were

6 represented by James Rubin, and Defendants Kempton, Province, and Glenn were represented
7 8 by David P. Harris.

9

Following presentation of oral argument, and after the Court’s consideration of all oral

10 and written evidence and argument present, the Court, finding good cause therefor, hereby

11 orders as set forth below.
12

13

IT IS HEREBY ORDERED that:

14

A. Defendant Kempton’s motion for summary judgment is DENIED;

15

B. Plaintiffs’ motion for summary judgment against Defendants Province and Glenn is

16 DENIED;

17

C. Defendants Province and Glenn’s motion for summary judgment is GRANTED as to

18 the state law claims for damages asserted against them, specifically, the fifth, sixth, seventh, and

19 eighth claims for relief in the Second Amended Complaint on file herein; AND

20

D. Defendants Province and Glenn’s motion for summary judgment is DENIED on all

21 other grounds.

22

23

IT IS SO ORDERED.

24 DATED: May 19, 2008

25

26

27

/s/ OLIVER W. WANGER

OLIVER W. WANGER

28

U. S. District Court Judge

-2ORDER
PDF created with pdfFactory trial version www.pdffactory.com

 
 1 HOWREY LLP

PAUL ALEXANDER (SBN 49997)

2

1950 University Ave., 4th Floor East Palo Alto, CA 94303

3

Telephone: (650) 798-3500 Facsimile: (650) 798-3600

4 E-mail: alexanderp@howrey.com

5

HELLER EHRMAN LLP ROBERT B. HAWK (SBN 118054)

MELYSSA E. MINAMOTO (SBN 245458)

6 ERIC LLOYD (SBN 254390)

275 Middlefield Rd.

7 Menlo Park, CA 94025-3506

Telephone: (650) 324-7000

8

Facsimile: (650) 324-0638 E-mail: robert.hawk@hellerehrman.com

9 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OREN SELLSTROM (SBN 161074) ELISA DELLA-PIANA (SBN 226462)

131 Steuart Street
11 San Francisco, CA 94105

Telephone: (415) 543-9444

12 Facsimile: (415) 543-0296
E-mail: osellstrom@lccr.com

13 ACLU OF NORTHERN CALIFORNIA

14

ALAN L. SCHLOSSER (SBN 49957) MICHAEL T. RISHER (SBN 191627)

15

39 Drumm Street San Francisco, CA 94111

16

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

E-mail: mrisher@aclunc.org
17
UNITED STATES DISTRICT COURT

18

19

EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

20

21

22

23

24

25

26

27

28

SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

1

2 Pamela Kincaid, Doug Deatherage, Charlene Clay,
Cynthia Greene, Joanna Garcia, Randy Johnson,
3 Sandra Thomas, Alphonso Williams, and Jeannine
Nelson, Individually on Behalf of Themselves and
4 All Others Similarly Situated,

5
v.

Plaintiff,

6 City of Fresno, Alan Autry, Jerry Dyer, Greg

7

Garner, Reynaud Wallace, John Rogers, Phillip Weathers, Will Kempton, James Province, Daryl

8

Glenn, Individually and in Their Official Capacities; DOES 1-100, inclusive,

9

Defendant.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Civil Action No.: 06-CV-1445-OWW CLASS ACTION
ORDER PRELIMINARILY APPROVING SETTLEMENT AGREEMENTS, SETTLEMENT PLAN, NOTICE AND NOTICE PROCEDURE

2
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

11

WHEREAS the Plaintiffs Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia

2 Greene, Joanna Garcia, Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson,

3 on behalf of themselves and each Plaintiff Settlement Class Member (as defined herein), by and

4 through their counsel of record, have asserted claims for damages and injunctive relief against the

5 City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

6 Weathers (collectively the “City Defendants”), Will Kempton, James Province and Daryl Glenn

7 (collectively the “Caltrans Defendants”), alleging violations of federal and state constitutional

8 rights as well as violations of applicable state law;

9

WHEREAS the Plaintiffs and the City Defendants and the Caltrans Defendants, respectively

10 entered into separate settlement agreements which have been filed with the Court;

11

WHEREAS the Plaintiffs have filed with the Court a Motion for Preliminary Approval of

12 the Settlement Agreement, together with supporting documents, which includes a Settlement Plan

13 for providing notice of the Settlement Agreements to the Class, a plan for administering the

14 settlement, if finally approved, and a claim form;

15

WHEREAS the Court has considered the Settlement Agreement between the Plaintiffs and

16 the City Defendants, the Settlement Agreement between the Plaintiffs and the Caltrans Defendants,

17 the proposed Notice Plan, the claim form and the pleadings and documents submitted in connection

18 with the parties’ request for preliminary approval of the Settlement Agreement, and good cause

19 appearing therefore;

20

WHEREAS, the Court held a further hearing on June 10, 2008, at which each of the City

21 Defendants formally in open Court agreed to the Settlement Agreement with the City Defendants.

22

23

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

24
1. This Court has jurisdiction over this Litigation and each of the parties to the
25
Settlement Agreement.
26
2. The Court preliminarily finds that Settlement Agreement with the City Defendants,
27
the Settlement Agreement with the Caltrans Defendants, and the Settlement Plan incorporated in
28

1
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

1 those Settlement Agreements, are fair, reasonable and adequate and in the best interests of the

2 members of the Plaintiff Class.

3

3. The Court preliminarily finds that both the Settlement Agreements and the

4 Settlement Plan appear to have resulted from arms-length negotiations by and among counsel who

5 were reasonably skilled and prepared and who represented the best interests of their respective

6 clients in negotiating the Settlement Agreement and the Settlement Plan. Further, it appears that the

7 settlement negotiations took place in a mediation session supervised by Magistrate Judge Snyder,

8 which provides the Court with further assurance that the negotiations leading to the Settlement

9 Agreements and Settlement Plan were good faith, arms-length negotiations, taking into

10 consideration the risks of trial, the potential recovery, and all other relevant factors leading to the

11 Settlement Agreements.

12

4. The Court preliminarily finds that the incentive payment of $1,000 for each of the

13 eight named plaintiffs who have served as class representatives, in addition to any other

14 consideration they may receive under the Settlement Agreements, is fair and reasonable, in light of

15 the numerous court hearings that the class representatives have attended, their attendance at

16 numerous meetings with Class counsel, their personal efforts to give notice of the lawsuit and

17 information about the lawsuit to potential class members, and their personal efforts on behalf of the

18 class.

19

4. The Court preliminarily finds that the attorneys fees and costs provisions in the

20 Settlement Agreement with the City Defendants were reached after the primary terms of that

21 settlement were reached and were also the product of arms-length and good faith negotiations near

22 the end of the mediation session supervised by Magistrate Judge Snyder. The attorneys fees and

23 costs provisions appear to take into consideration the right of counsel for the Class to seek an award

24 of fees that could well be substantially higher than the amount agreed do, the risks of trial, and all

25 other relevant factors. The attorneys fees and costs are paid as additional consideration and are not

26 taken from the consideration paid to the Class.

27

5. The Court further finds that the form and content of the proposed Notice attached

28 hereto as Exhibit A and the Claim Form attached hereto as Exhibit B comply with the requirements

2
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

1 of Federal Rule of Civil Procedure 23 and satisfy due process. The Court approves the Notice and

2 and the Claim Form and hereby orders that the Notice and the Claim Form be distributed and

3 published to class members beginning on or before June 15, 2008 and completed as soon as

4 practicable, with the goal of completing the distribution of the Notice and Claim for by July 15,

5 2008. The costs of the notice will be advanced by counsel and shall be recoverable out of the costs

6 provided for in the City Settlement. The distribution and publication of the Notice and Claim Form

7 shall be accomplished in the following manner:

8

(a) The Class Representatives shall make a reasonable and diligent effort to

9 provide the Notice and Claim Form to potential class members at shelters or places where homeless

10 people who may be potential class members are generally known by them to be located;

11

(b) Plaintiffs shall provide copies of the Notice and Claim Form to the St.

12 Benedict Catholic Worker, the Poverello House, Naomi’s House, the Fresno Rescue Mission,

13 Central California Legal Service, California Rural Legal Services, and Marjoree Mason Center for

14 distribution to homeless persons who come into contact with those organizations;

15

(c) Plaintiffs shall publish the Notice in the Community Alliance, a free

16 newspaper that is generally distributed to and read by homeless persons, among others, which will

17 provide instructions on how to obtain copies of the Claim Form; and

18

(d) To the extent that Class Members have a known mailing address, Plaintiffs

19 shall mail the Notice and Claim Form to that known address by first class mail.

20

21 WHEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

22

1. The Settlement Agreement with the City Defendants, the Settlement Agreement with the

23 Caltrans Defendants, and the Settlement Plan incorporated therein are hereby ordered preliminarily

24 approved as fair, reasonable, and in the best interests of the Class.

25

2. The form of Notice and Claim Form attached hereto as Exhibit A and Exhibit B,

26 respectively, are hereby approved and counsel for the Class are hereby ordered to proceed with that

27 Notice in accordance with the provisions of paragraph 5 (a) through (d) above.

28

3. A hearing is hereby scheduled for July 25, 2008 at 3:00 p.m. in Courtroom 3, Fresno

3
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

1 Federal Courthouse, 2500 Tulare Street, Fresno, California, to consider whether this Court should

2 grant Final Approval of the Settlement Agreement with the City Defendants, the Settlement

3 Agreement with the Caltrans Defendants, and the Settlement Plan incorporated therein, pursuant to

4 Federal Rule 23(e) and any objection to any of he foregoing that may be filed either before or at the

5 time of the hearing. At this hearing, the Court will consider and decide: (a) the fairness,

6 reasonableness and adequacy of each of the Settlement Agreements; (b) whether the Settlement

7 Plan should be approved; (c) the reasonableness of the attorneys’ fees and costs to be paid by the

8 City Defendants as agreed in the Settlement Agreement with the City Defendants; and (d) whether

9 to enter a Final Approval Order and Judgment.

10

11

12 Dated this 13th day of June, 2008.

13

14

15

16

/s/ Hon.

17

United

OLIVER W. WANGER Oliver W. Wanger States District Judge

18

19

20

21

22

23

24

25

26

27

28

4
SETTLEMENT AGREEMENT, CIVIL ACTION NO. 06-CV-1455-OWW

 
 HellerEhrman LLP

October 16, 2006 Via Facsimile

Paul Alexander paul .a l c x a n d c r @ : h e l l a c h r m a n .c o m
Direct + 1.650.324.70 15 Direct Fax 11.650.324.6012
MalO +\.650.324.7000 Fax + 1.650.324.0638

James Sanchez City Attorney City of Fresno Fresno City Hall 2600 Fresno Street Second Floor Fresno, CA 93721-3600

')80S0. 1247

Re: Temporary Restraining Order

Dear Mr. Sanchez:

We write on behalf of a coalition of lawyers that includes the American Civil Liberties Union of Northern California, the Lawyers Committee for Civil Rights and lawyers from Heller Ehrman working with them.

It has come to OUf attention that the City of Fresno has for some time been seizing and summarily destroying the property of homeless persons living in the City. These seizures often occur during organized, large-scale raids by Fresno Police officers and other City personnel. It appears to us that the frequency of these raids has been increasing in rccent months. We also understand that just five days ago, on October I I, Fresno police threatened to return at somc unspecified, but imminent date to again confiscate and destroy any remaining property of the homeless.

We are therefore writing to advise you that, unless we can reach an agreeable interim solution, we intend to seek a temporary restraining order on Tuesday, October, 17,2006, in the U.S. District Court in Fresno to restrain the City and its employees and representatives from continuing to take and destroy the property of the homeless people living in Fresno _ We also intend to file suit on that date for pcnnanent equitable relief as well as damages.

We have investigated and researched carefully the legality of Fresno's destruction of the property of the homeless that occurred over the past several months and that continues to occur. These actions violate the United States and California Constitutions as well as Ca lifornia statutory and common law. The destruction of the limited and often essential

Holler Ehrman LLP 275 Middlefield Road Menlo Park. CA 94025-3506 www.hellerehrman.com

Anchorage

6eijirIQ

Hong Kong

lOS Angeles

Silicon Valley

Singapore

Washington. D.C.

Madison. WI

New York

San Diego

San Francisco

Seattle

Heller E hrmanLLI'

James SancheI'.
October 16, 2006 Page 2

possessions of the homeless is devastating to them and often deprives them of their shelter, medicine, and other necessities of life.
There is no immediate need for the City of Fresno to continue this conduct. Continuing it now will only worsen the situation and further expose the City of Fresno and other defendants to liability. We ask that the City of Fresno voluntarily agree to cease and desist from this conduct pending a hearing on a motion for preliminary injunction.
We propose that the City of Fresno agree to a stipulated restraining order halting this ongoing practice of taking and destroying the property of the homeless and harassing them pending a hearing on a motion for preliminary injunction. With that in place, we will work with you to establish a reasonable briefing schedule and other court dates so that this matter can be promptly adjudicated. We think this is the most appropriate course of action for all concerned. If you decline, however, we have no alternative but to seek a temporary restraining order this Tuesday.
We look forward to your prompt response to this letter and will follow up by phone later today.

 
 OCT-16-2006 16:44

FRESNO CITY RTTORNEYS OFC

559 488 1084 P.02

James C. Sanchez City Attorney

October 16,2006

VIA FACSIMILE AND FIRST CLASS MAIL
Paul Alexander
Heller Ehrman, llP
275 Middlefield Road Menlo Park, Califomia 94025-3506
Re: Temporary Restraining Order
Dear Mr. Alexander:
The City of Fresno ("City") responds to the concems raised in your letter of October 16, 2006, as follows:
1. The City objects to your characterization that the City "has for sometime been seizing and summarily destroying the property of homeless persons living in the City." This is an unfounded accusation, The City, in response to reports of health and safety code violations and criminal activity received from private citizens, as well as state and federal entities, has engaged in "clean-up" efforts of the homeless encampments. The "cleanup" efforts are conducted in a humane manner, including giving advance notice of the "clean-up" effort to the affected persons, and allowing adequate time for removal of possessions,
2. The City actions do not violate the "United States and Califomia Constitution or Califomia Statutory and common law." The City acts are authorized, as the City is required to respond to reports of health and safety code violations, and to requests for service from its citizens concerning trespass on private property and govemmental property. The requests for service concerning the homeless encampments include reports of public drug use, discarding of drug paraphernalia, and public sexual activity. In addition, the homeless encampments are sites of violent crimes including assault, aggravated assault, robbery, illegal drug sales, and prostitution.

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FRESNO CITY RTTORNEYS OFC

559 488 1084 P.03

Paul Alexander October 16, 2006 Page 2
3. There is a continuing need for the City to respond to calls for service from its citizens, private property owners and governmental entities who report and request assistance for violations of health & safety code requirements, and criminal activity. Accordingly, the City maintains the position its actions are lawful and will not voluntarily agree to cease and desist from this action.
At this juncture, the City will not stipulate to a restraining order, as the proposed restraining order would violate citizen and property owner rights to request enforcement of the laws that protect against trespass and violent crimes; and it would also improperly curtail the City's right to enforce health and safety code violations. If you have alternative suggestions, which meet your concerns and do not compromise the public health and safety issues as noted above, we are available to discuss these suggestions with you. However, the City will not agree to any proposal that suppresses legitimate police and City action.
I look forward to hearing from you.

NE M. KANNE
AS~!lItant City Attorney
FMK;jl[39212jl\fmkl

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 1 HELLER EHRMAN LLP

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PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road

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Menlo Park, CA 94025-3506 Telephone: (650) 324-7000

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Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

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OREN SELLSTROM (SBN: 161074) ELISA DELLA-PIANA (SBN: 226462)

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131 Steuart Street, Suite 400 San Francisco, CA 94105

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Telephone: (415) 543-9444 Facsimile: (415) 543-0296

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ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN SCHLOSSER (SBN: 49957)

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MICHAEL T. RISHER (SBN: 191627) 39 Drumm Street

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San Francisco, CA 94111 Telephone: (415) 621-2493

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Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

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18 Pamela Kincaid, Doug Deatherage, Charlene

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Clay, Cynthia Greene, Joanna Garcia, and Randy Johnson, Individually on Behalf of

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Themselves and All Others Similarly Situated, Plaintiffs,

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v.

22 City of Fresno, California Department of

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Transportation, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

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Weathers and Will Kempton, individually and in their official capacities; DOES 1-100, inclusive,

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Defendants.

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Civil Action No.:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND FOR ORDER TO SHOW CAUSE RE ISSUANCE OF A PRELIMINARY INJUNCTION

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1 I. INTRODUCTION

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Plaintiffs are six homeless persons living in the City of Fresno (“Fresno”) whose personal possessions have been confiscated and summarily destroyed by Fresno employees as a part of an ongoing Fresno practice and policy targeting the homeless. Plaintiffs seek to represent a class of similarly situated homeless men and women who have suffered and will continue to suffer the same type of loss from this same practice and policy.1 Plaintiffs seek a temporary restraining order and a preliminary and permanent injunction preventing Fresno and the remaining Defendants from continuing this unlawful practice.
Fresno and the remaining Defendants are engaged in an ongoing practice of seizing and summarily destroying plaintiffs’ valuable and essential personal property such as medicine, clothing, personal papers, portable radios and televisions. These possessions include essentials of life of plaintiffs. Plaintiffs’ possessions are not abandoned when seized and destroyed, but rather are lawfully owned property usually in the immediate presence of its owner. The property plainly is not abandoned or “trash”, but is valuable and in many cases, essential possessions that Plaintiffs are desperately trying to protect even as it is being destroyed. No legitimate basis exists to seize the property in the first place, much less immediately destroy it, often while Plaintiffs watch helplessly. The only real reason for this wholesale seizure and destruction is that Plaintiffs are homeless and defenseless and Fresno regards their existence on city streets as an annoyance.
A Temporary Restraining Order is needed to prevent imminent harm to Plaintiffs. Defendants have made clear through their repeated raids that their seizure and destruction of Plaintiffs’ property is part of any ongoing campaign against Plaintiffs. As recently as last Wednesday, October 11, 2006, Fresno police officers confronted a group of homeless people in an area near H Street and San Benito, lined them up and threatened them that they intended to return very soon to destroy their possessions. Unless restrained by an appropriate and balanced injunction of this Court, these unlawful acts will be visited upon
1 For simplicity, Plaintiffs and the putative plaintiff Class will be referred to herein as “Plaintiffs.”

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1 Plaintiffs again and again so long as they continue to live in Fresno. Injunctive relief is

2 therefore essential to preserve Plaintiffs’ rights under the Constitution and to protect what

3 few personal belongings they have left.

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II. STATEMENT OF FACTS
Between 4,400 to 8,800 of Fresno’s approximately 440,000 residents are homeless, according to a recent report by a consortium of local government agencies and providers. Fresno Madera Continuum of Care Plan To End Homelessness at 10-11, attached as Exhibit A hereto. However, services for low-income people in need of shelter are extremely scarce. “[O]nly 1.4% of the homeless population [is] sheltered . . . leaving more than 98% of the homeless population unsheltered and receiving no services.” Id. at 13. The report indicates that there is currently an “overwhelming need for homeless assistances,” with a gap of approximately 7,000 shelter/housing spaces in the Fresno-Madera area. Id. The lack of shelter for women is particularly acute. Naomi House, one of the few shelters in Fresno for women, has capacity for only 25 women on any given night. On information and belief, a lottery is held every day to choose which women will be allowed to stay in the shelter on that night. Those who are not successful in this lottery are turned away, and often end up staying on the streets nearby. In the face of this severe need, Fresno has chosen to respond by brute force, directed at homeless people themselves for over a year and escalating over the past few months.
Fresno and the other Defendants in this case are engaged in the ongoing, conscious practice—based upon official policy—of seizing and summarily destroying the personal possessions of the homeless living in Fresno. They do this in what can fairly be described as raids on the homeless. Fresno city employees, accompanied by Fresno police officers, sweep through an area where the homeless are found and intentionally take and destroy essentially all of the possessions of the homeless that they find.
The raids are similar in nature: Early in the morning, Fresno employees, equipped with a bulldozer, City garbage truck or other heavy equipment, arrive at an area where the

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1 homeless are living. Rhodes Decl., ¶ 4 and 9; Kincaid Decl., ¶ 4; Deatherage Decl., ¶ 3;

2 Clay Decl., ¶ 3; Greene Decl., ¶ 4; Garcia Decl., ¶ 6; Streeter Decl., ¶ 2; Williams Decl., ¶

3 2; Vizcarrondo Decl., ¶2; Apper Decl., ¶ 4 and 6. The bulldozer then makes a pass,

4 scooping up most of the Plaintiffs’ possessions and dumping them into a garbage truck

5 where they are quickly crushed. Rhodes Decl., ¶ 6; Deatherage Decl., ¶ 6; Kincaid Decl., ¶

6 9; Clay Decl., ¶ 3; Greene Decl., ¶6; Garcia Decl., ¶ 7; Johnson Decl., ¶ 2; Streeter Decl., ¶

7 3; Apper Decl., ¶ 8. The large bulldozer with the huge metallic “grabber” on the front is

8 particularly effective at seizing and destroying Plaintiffs’ property, as is evident from this

9 photograph below from one of the raids. The tent that has been grabbed by the bulldozer in

10 the picture below is bulging at the bottom due to the weight of the owner’s belongings, 11 which are about to be destroyed along with the tent:2

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2 I am informed and believe that the photograph of the raid on the homeless was taken by Dallas Blanchard on February 4, 2004, and published in the SF Bay Area Independent Media Center web page.

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This practice continues today as illustrated by the following a photograph from the

2 May 25, 2006 raid:3

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13 truck by Fresno employees. When the raid is complete, nothing is left.

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Plaintiffs are not permitted to retrieve their possessions or save them from

15 destruction. Instead, Plaintiffs seek to save their possessions from destruction, they are

16 threatened with arrest. Streeter Decl., ¶ 3; Apper Decl., ¶ 9. Fresno police make it plain

17 that no one will be permitted to interfere with the seizure and destruction of the possessions 18 of the homeless:4

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3 Rhodes Decl., ¶ 9. 4 Rhodes Decl., ¶ 12.

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Since May, 2006, Defendants have intensified these raids in both scope and pace,

2 leaving no doubt that this practice is a deliberate policy and a continuing practice. During

3 the past five months, Defendant Fresno, acting through and with the assistance of the other

4 Defendants, conducted at least five raids on the Fresno homeless, each time confiscating

5 and immediately destroying all the personal property they found:

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May 3, 2006 – Defendants confiscated and destroyed the property of the homeless

7 living on the west side of E Street, Broadway Street and H Street, Van Ness Street and Los

8 Angeles Street, and Santa Fe Street and Ventura Street.

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May 25, 2006 – Defendants confiscated and destroyed the property of the homeless

10 living on the west side of E street.

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June 22, 2006 – Defendants confiscated and destroyed the possessions of the

12 homeless, this time on both sides of E Street and Santa Clara Street.

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July 1, 2006 – Defendants confiscated and destroyed the property of the homeless

14 living on the west side of E Street.

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August 26, 2006 – Defendants confiscated and destroyed the property of the

16 homeless living on E Street, this time on both sides of the street.

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October 8, 2006 – Fresno police officers came to an area near H and San Benito

18 streets where several homeless people were found. Some of these homeless people had

19 shopping carts that were their own property and essential for them to move their property.

20 The police dumped the possessions onto the ground, confiscated all of the shopping carts

21 (even though there was no lawful basis to do so) and took them away, apparently for

22 destruction.

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October 11, 2006 – Fresno police officers confronted a group of homeless people in

24 the area of H and San Benito Streets, forced them to stand in lines for an extended period

25 and specifically threatened them with a “formal warning” that they intended to return very

26 soon (though they refused to say exactly when) to destroy everything homeless people

27 owned in this area.

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The declarations filed with this Motion – together with the photographic evidence –

2 unequivocally establish an ongoing practice and policy of the City of Fresno, implemented

3 and/or joined in by the remaining Defendants, to seize and destroy all of the property of the

4 homeless living in Fresno. This evidence leaves no doubt that the Defendants have engaged

5 in this conduct and that they will continue to do so unless retrained by an appropriate Order

6 of this Court. Specifically, the evidence establishes that:

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1. Defendants routinely raid areas where Plaintiffs live as homeless citizens in

8 Fresno, California. All of the raids are conducted under color of law and as part of a policy

9 and practice of the City of Fresno, implemented by city employees and the remaining

10 Defendants.

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2. In these raids, Defendants confiscate and destroy all of the personal property

12 of the Plaintiffs that they find, making no distinction between obviously important and

13 valuable personal property, and anything that could be legitimately regarded as abandoned

14 or “trash.”

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3. As a result, Plaintiffs lose most, if not all, of the few possessions they own,

16 including their shelter (often a tent), their clothing, their medication, radios, small

17 televisions and items of enormous and irreplaceable personal value such as photographs of

18 loved ones, a lock of child’s hair and, in one case. an urn containing the ashes of a close

19 family member.

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4. Defendants give little or no actual notice of their impending raid and, in

21 virtually every case, what little notice may be given is inadequate to allow Plaintiffs to

22 retrieve and preserve their personal belongings.

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5. Defendants make no effort to retain or preserve any of the property that they

24 confiscate, even though it is obvious that most of this property is valuable to the Plaintiffs

25 and in many cases represents virtually everything they own. Instead, Defendants

26 immediately destroy all of the property that they confiscate, often while the Plaintiffs watch

27 helplessly.

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6. Plaintiffs who protest or seek to retrieve their personal possessions to prevent

2 them from being destroyed are often restrained by Fresno police officers. Once the raid

3 begins, efforts to stop it or to “interfere” by retrieving personal property are often met with

4 threats of arrest.

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7. Plaintiffs are not cited for violation of any ordinance or law of the City of

6 Fresno or the State of California in connection with the destruction of their property.

7 Rather, the policy and practice of Defendants is to “clean up” the area by destroying

8 everything that Plaintiffs own. It is this practice and policy that is unlawful and that this

9 lawsuit challenges.

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ARGUMENT
A. Defendants Have Violated and Are Violating the Fourth Amendment of the U.S. Constitution.

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The Fourth Amendment to the Constitution provides that “the right of the people to

14 be secure in their persons, houses, papers and effects, against unreasonable seizures and

15 searches shall not be violated . . . .” United States Const. Amend. IV.5 Defendants’

16 confiscation and destruction of Plaintiffs’ personal property violates their Fourth

17 Amendment right to be free from unreasonable seizures of their property.

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A “seizure” under the Fourth Amendment occurs “where there is some meaningful

19 interference with an individual’s possessory interests in that property.” Soldal v. Cook

20 County Ill., 506 U.S. 56, 63 (1992). There is no question that Fresno and the other

21 Defendants have seized Plaintiffs’ property.

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Likewise, it is plain that these seizures are unreasonable under the Fourth

23 Amendment. As the Ninth Circuit recently explained:

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5 Defendants’ actions also violate the Plaintiffs’ concomitant rights under Article I, Section 13 of the California Constitution which provides in part that “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated . . . .” This provision provides at least as much protection as does the Fourth Amendment. See People v. Brisendine, 13 Cal. 3d 528, 548-52 (1975), abrogated on other grounds as discussed in In re Lance W., 37 Cal. 3d 873, 879 (1985).

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Reasonableness is the touchstone of any seizure under the Fourth Amendment. Thus, to comply with the Fourth Amendment, the seizure . . . must have been reasonable under the circumstances. We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer's duties. A seizure becomes unlawful when it is “more intrusive than necessary.” To determine whether the [given seizure] was reasonable, we balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962,
975 (9th Cir. 2005) (citations and quotation marks omitted).
Under the Fourth Amendment, it is plainly established law that public officials and
employees cannot seize and destroy an individual’s personal property simply because it is
located in a public place. Rather “an officer who happens to come across an individual’s
property in a public area could seize it only if Fourth Amendment standards are satisfied—
for example, if the items are evidence of a crime or contraband.” Soldal, 506 U.S. at 68; see
also San Jose Charter of the Hells Angels Motorcycle Club, 402 F.3d at 975 (“[T]he
destruction of property by state officials poses as much of a threat, if not more, to people’s
right to be ‘secure . . . in their effects’ as does the physical taking of them.”) (citation
omitted). Under the Fourth Amendment, governmental seizure of property such as that seen
in this case violates the Constitution unless there is a legitimate governmental interest that
somehow outweighs the citizen’s fundamental constitutional right to be free from having a
governmental entity take and destroy his or her private property. Soldal v. Cook County,
supra, at 549. Miranda v. City of Cornelius, 429 F.3d 858, 862-63 (9th Cir. 2005). Such
“legitimate interest” is not present.
The case of Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), cited
with approval in U.S. v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993), is particularly instructive
because it involved similar conduct and made it plain that this conduct violates the Fourth
Amendment (as well as the Fourteenth Amendment). In Pottinger, the class of Plaintiffs
were homeless people living in Miami. And there, as here, Miami decided to address its
homeless “problem” through force: Miami employees routinely seized and destroyed the

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1 possessions of the homeless. In one instance, police officers “dumped [the Plaintiffs’]

2 personal possessions—including personal identification, medicine, clothing and a Bible—

3 into and pile and set the pile ablaze.” In another, Miami workers used “front-end loaders

4 and dump trucks” to destroy the property of the Plaintiffs. When one homeless person

5 “attempted to retrieve his belongings from the City workers, he was threatened with arrest

6 for obstructing justice.” Id. at 1556.

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The court in Pottinger had no difficulty in holding that this conduct violated

8 Plaintiffs’ Fourth Amendment right to be free from unreasonable seizure. Miami argued—

9 as presumably Fresno will in this case—that its interest in keeping areas sanitary and

10 orderly outweighed any interest that the homeless had in their few belongings. The

11 Pottinger court, however, expressly rejected this argument, holding that such interests

12 cannot justify violations of fundamental, constitutional rights. See id. at 1570-73. Indeed,

13 as the court noted, the value of personal property of the homeless “is in the eyes of the

14 beholder, as one man’s junk is another man’s treasure.” Id. at 1556.

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Similarly, in Justin v. City of Los Angeles, No. CV 012352LGBAIJX, 2000 WL

16 1808426 (C.D. Cal. Dec. 5, 2000), the Plaintiffs (homeless individuals) alleged, inter alia,

17 that the Defendants (Los Angeles police officers and other city officials) “search[ed],

18 seiz[ed], and, at times, destroy[ed] the Plaintiffs’ property.” Id. at *9. Plaintiffs sought a

19 temporary restraining order . Defendants resisted, arguing that the City had the right to

20 keep its streets safe and clean. The court considered and rejected these arguments:

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Here, Defendants may be slowed in their efforts to keep the City, and especially the downtown area, clean and safe. This injunction may disturb their new initiative to revitalize and uplift communities, to improve the streets and sidewalks, and to diminish the crime rate. Plaintiffs, however, risk a greater harm if the injunction is not granted: the violation of their First, Fourth, and Fourteenth Amendment rights.
Id. at *11. The court thus granted the temporary restraining order. Id. at *13.
The facts from the Pottinger and Justin cases are parallel to this one, as should be the
result. It could hardly be more clear that the Defendants’ actions in physically taking and
destroying Plaintiffs’ valuable and essential personal property constitutes a “seizure.” The

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1 “interference” resulting from Defendants’ intentional conduct is total—Defendants not only

2 seize the property, they destroy it. Fuller v. Vines, 306 F.3d 65, 68 (9th Cir. 1994) cert

3 denied. , 514 US 1017 (1995)(“The destruction of property is ‘meaningful interference’

4 constituting a seizure under the Fourth Amendment . . . .”). Fresno’s ongoing policy of

5 destroying the personal property of Plaintiffs and the Plaintiff Class thus plainly violates the

6 Fourth Amendment.

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There is no case that holds the extreme seizures and immediate destruction of the

8 valuable – indeed essential – personal possessions that Fresno and the other Defendants

9 inflicted upon Plaintiffs to be lawful. The destruction of Plaintiffs’ personal property is 10 immediate and devastating, as is seen below from a August 26, 2006 photo:6

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These incredibly destructive seizures are without any doubt “more intrusive than

22 necessary.” San Jose Charter of the Hells Angels Motorcycle Club, 402 F.3d at 975

23 (quoting Florida v. Royer, 460 U.S. 491, 504 (1983). Indeed, the absurdity of any defense

24 the Defendants might assert is obvious when one “balance[s] ‘the nature and quality of the

25 intrusion on the individual’s Fourth Amendment interests against the countervailing

26 governmental interests at stake.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396

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In the limited statements that it has made about the purpose of the raids, the

3 governmental interest asserted by Fresno is its desire to clean the streets where the homeless

4 Plaintiffs live and that Plaintiffs may be trespassing – although no actual complaints of

5 trespassing have been identified. The immediate seizure and destruction of Plaintiffs’

6 personal possessions cannot be justified on this basis. As a matter of well-established law,

7 the purported desire to clean an area cannot justify the immediate and wholesale destruction

8 of Plaintiffs’ personal possessions. The Court in Pottinger made this clear over ten years

9 ago: “[T]he City’s interest in having clean parks is outweighed by the more immediate

10 interests of the plaintiffs in not having their personal belongings destroyed.” Pottinger, 810

11 F. Supp. at 1573. The subsequent opinion in 2000 in Justin confirmed this clear law.

12 Moreover, even if there were a complaint about an incident of trespassing, this would not

13 justify the wholesale destruction of Plaintiffs’ personal property. There is no legitimate

14 basis that justifies the wholesale seizure and immediate destruction of all Plaintiffs’

15 possessions. It is a violation of well-established law. Moreover, because these violations

16 are ongoing and devastating to Plaintiffs, the Court should issue a temporary restraining

17 order and, subsequently, a preliminary injunction restraining these ongoing violations.

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B. Defendants’ Confiscation and Destruction of Plaintiffs’ Personal Property Violates Plaintiffs’ Constitutional Right to Due Process Under the Fourteenth Amendment.
“No state shall . . . deprive any person of life, liberty, or property, without due process of law.” United States Const. Amend XIV. Plaintiffs’ personal possessions, which in many cases represent most of what they own, plainly constitute “property” under the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 84 (1972). “[A] homeless person’s personal property is generally all he owns; therefore, while it may look like ‘junk’ to some people, its value should not be discounted.” Pottinger, 810 F. Supp. at 1559.
The basic requirements of procedural due process are a right to notice and “the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews v.

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1 Eldridge, 424 U.S. 319, 339-343 (1976) (citation and quotation marks omitted). When a

2 protected property interest is threatened, a court must consider three factors to determine

3 whether due process right has been violated:

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[f]irst, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

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the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

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interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

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requirement would entail.

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9 Defendants’ policy and practices flagrantly disregard these clearly established legal

10 standards.

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Before the government seizes a person’s property, even temporarily, it must provide

12 notice and an opportunity to be heard prior to the seizure, except in “extraordinary

13 situations where some valid governmental interest is at stake that justifies postponing the

14 hearing until after the event.” United States v. James Daniel Good Real Prop., 510 U.S. 43,

15 53 (1993) (citations omitted). The importance of pre-seizure notice is not dependent on the

16 value of the property. See Fuentes v. Shevin, 407 U.S. 67, 84-87 (1972) ( government must

17 provide notice before temporarily seizing household goods); Propert v. District of

18 Columbia, 948 F.2d 1327, 1334 (D.C. Cir. 1991) ( government must provide adequate

19 notice to owners of parked cars before it tows them as “junk”). Pre-seizure notice is

20 required in these situations because the difficulty of determining whether the seizure is

21 justified creates too great a “risk of an erroneous deprivation.” Propert, 948 F.2d at 1333.

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Defendants’ seizure of homeless people’s property without prior notice violates Due

23 Process under the three-part Matthews test. First, Defendants are seizing the very

24 necessities of life: shelter, medicine, and clothing. Second, without notice to allow the

25 homeless to gather up and move their belongings, Defendants will continue to erroneously

26 deprive them of lawful property that is neither abandoned nor creates any risk to public

27 health or safety. The indiscriminate and total sweeps of the targeted area clearly result in

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1 but in the certainty of erroneous deprivations.

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Finally, the City could easily provide notice that would effectively allow the

3 homeless to protect their possessions. There is no indication that the raids are a response to

4 some sort of emergency that would prevent adequate notice; indeed, their sheer size

5 suggests that the City plans them days in advance. If the purpose of these operations is truly

6 to clean up the sites where Plaintiffs are living, there is no reason that the City cannot

7 provide adequate notice to allow Plaintiffs to move their belongings.

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Yet Plaintiffs’ right to injunctive relief is not dependent on establishing a right to

9 pre-seizure due process, for Defendants have ignored the even more fundamental due

10 process requirement of a right to be heard in some meaningful way before the state destroys

11 one’s property: “the State may not finally destroy a property interest without first giving

12 the putative owner an opportunity to present his claim of entitlement.” Logan v.

13 Zimmerman Brush Co., 455 U.S. 422, 434 (1982). This issue has arisen commonly in the

14 context of the government’s treatment of vehicles that it considers to be “junk”, much as

15 Fresno apparently deems plaintiffs’ personal possessions. In an operation that was in many

16 ways similar to the Fresno raids, Honolulu officials conducted a “sweep of derelict

17 vehicles” that resulted in the seizure and immediate destruction of motorcycles that were

18 parked in front of a repair shop. Wong v. City & County of Honolulu, 333 F. Supp. 2d 942,

19 945 (D.Haw. 2004). The sweep was conducted under a statute that provided for the

20 summary seizure and destruction of inoperable, partially dismantled vehicles that were more

21 than 10 years old. Id. at 948. The only notice that Mr. Wong had received was an oral

22 statement from the police telling him to move the motorcycles. Id. at 945. The district

23 court held that, in spite of the statute, no reasonable officer could have believed that the

24 destruction comported with Due Process. Id. at 948, 955-56. See also Propert, 948 F.2d at

25 1335 (“Although [a municipality] may have a strong interest in the prompt removal of

26 supposed junk vehicles from the streets, its interest in the immediate destruction of such

27 vehicles is far from apparent.”) And in Schneider v. County of San Diego, 28 F.3d 89 (9th

Heller 28 Cir. 1994), the Ninth Circuit held that, even though a car owner had been provided a formal
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1 pre-seizure notice and hearing as to whether his car constituted a nuisance, he was deprived

2 of due process because the notice that his car would be destroyed after it was towed was

3 inadequate.

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Thus, the law is clear that even if the initial seizure of property is justified, the

5 subsequent destruction of that property without a hearing violates Due Process. Here,

6 Defendants immediately destroy everything, leaving no time for any determination that the

7 deprivation was “erroneous” and that the destruction is unjustified. The only “hearing”

8 occurs “on site” when Plaintiffs plead (in vain in most instances) for more time to gather-up

9 their possessions, or ask that they be allowed to retrieve them from the garbage truck before

10 the city destroys them. Due Process demands more.

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C. Defendants’ Conduct Also Violates California Law.
1. Defendants’ Conduct Violates California Civil Code § 2080 et seq.
California Civil Code § 2080 et seq. creates duties that apply when a person or governmental entity “finds” or takes possession of property that they know belongs to another, even if it is lost. California Civil Code § 2080 provides in pertinent part:
Any person or any public entity or private entity that finds and takes possession of any money, goods, things in action, or other personal property . . . shall within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. Cal. Civ. Code § 2080. The “person, public entity or private entity” that “takes possession” of another’s personal property must either make a reasonable effort to return it or turn it over to the police. Id. § 2080.1. The police must maintain the property for at least 90 days and return it to the owner if the owner appears and requests it. Id. § 2080.2. A public agency need not follow this procedure, but if the agency chooses not to follow the statutory provisions, it must implement regulations which include the retention of the item for at least 90 days in case the owner should claim it. Id. § 2080.6(a). Defendants make no effort at all to comply with California Civil Code § 2080 et seq. To the contrary, they immediately destroy all of Plaintiffs’ personal property and ignore

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1 Plaintiffs’ protestations and requests to return it. In so doing, Defendants flagrantly flout

2 the law. It is inherently unreasonable to destroy all of a vulnerable homeless person’s few

3 remaining possessions, particularly when the owners are close at hand and pleading that

4 their property not be destroyed. Defendants cannot ignore Civil Code § 2080. They cannot

5 claim to be unaware that California law provides a legal standard for what must be done

6 with personal property when it is found. Fresno and the remaining Defendants flatly and

7 intentionally flout this legal standard when they seize and immediately destroy Plaintiffs’

8 personal possessions. Defendants have violated clearly established law and will do so again

9 unless enjoined by this Court.

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2. Defendants’ Conduct Violates the Bane Act

11 The Bane Act, codified at California Civil Code § 52.1 et seq., establishes a remedy
12 for actual or attempted interference with existing rights under federal and California law. In
13 particular, Section 52.1(a) provides that if a person interferes, or attempts to interfere, “by
14 threats, intimidation, or coercion, with the exercise or enjoyment by any individual or
15 individuals of rights secured by the Constitution or laws of the United States, or the rights
16 secured by the Constitution or laws of this state,” then the Attorney General, or any district
17 or city attorney, may bring a civil action for equitable or injunctive relief. Cal. Civ. Code §
18 52.1(a); see also Doe By and Through Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560,
19 1582 (N.D. Cal. 1993). Section 52.1(b) further allows “[a]ny individual” so aggrieved to
20 sue for “[statutory] damages under Section 52, injunctive relief, and other appropriate
21 equitable relief to protect the peaceable exercise or enjoyment of the right or rights
22 secured.” Cal. Civ. Code § 52.1(b); see also Venegas v. County of Los Angeles, 32 Cal. 4th
23 820, 841-43 (2004).7
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7 Given the fundamental nature of the rights secured by the Bane Act, the monetary remedies available under it are understandably robust. Section 52(a)—referenced in Section 52.1(b)—provides for liability “for each and every offense for the actual damages,” as well as mandatory additional damages “up to a maximum of three times the amount of actual damages but in no case less than four thousand dollars ($4,000), and any attorney’s fees . . . .” Cal Civ. Code § 52(b). Notably, a prevailing Plaintiff is entitled to the statutory damages even if the Plaintiff did
(Footnote Continued)

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1

The word “interferes,” as used in the Bane Act, means “violates.” See, e.g., Jones v.

2 Kmart Corp., 17 Cal. 4th 329, 336-37 (1998). Thus, the essence of a Bane Act claim is that

3 the defendant, by threats, intimidation or coercion, violated some statutory or Constitutional

4 right—be it Federal or State—of the Plaintiff. Id. at 344. And, significantly, even in the

5 absence of excessive force, “[u]se of law enforcement authority to effectuate a stop,

6 detention . . . , and search can constitute” a threat, intimidation or coercion. Cole v. Doe 1

7 Through 2 Officers of City of Emeryville Police Dept., 387 F. Supp. 2d 1084, 1103 (N.D.

8 Cal. 2005); see also Whitworth v. City of Sonoma, 2004 WL 2106606 (Cal.App. Sept. 22,

9 2004) (holding conduct of a police officer physically barring a person from entering a 10 meeting a form of “coercion” under the Bane Act, even if there was no actual use of force).8

11 Indeed, “threat, intimidation or coercion” is broadly construed. See Venegas, 32 Cal. 4th at

12 850-51 (Baxter, J. concurring) (“[A]lthough the proscribed conduct is . . . delineated by the

13 requirement that it be delivered in the form of a threat, intimidation, or coercion, it should

14 not prove difficult to frame many, if not most, asserted violations of any state or federal

15 statutory or constitutional right, including mere technical statutory violations, as

16 incorporating a threatening, coercive, or intimidating verbal or written component.”).

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Defendants violated several of the Plaintiffs’ rights, including but not limited to their

18 rights secured by the Fourth Amendment and Fourteenth Amendment of the U.S.

19 Constitution, as well as by the California Constitution. During each of the raids, City

20 employees and sanitation workers—using bulldozers and garbage trucks—unlawfully

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not suffer any actual damages, or is unable to prove them. O’Toole v. Superior Ct., 140 Cal.App.
22 4th 488, 502 (2006).

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The availability of damages under Section 52(a) does not prejudice Plaintiffs’ right to injunctive relief. See, e.g., Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999). Section 52.1(b) is written in the conjunctive, permitting a plaintiff to sue for “[statutory] damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” Cal. Civ. Code § 52.1(b) (emphasis added).
8 Although California Rules of Court 977(a) prohibit citation to or reliance upon Whitworth in a California court, this Rule does not apply to a Federal court. Indeed, the Federal District Court in Cole relied explicitly upon the “persuasive reasoning” of Whitworth. Cole, 387 F. Supp. 2d at 1103 n.7.

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1 seized and destroyed Plaintiffs’ property, while Fresno Police Officers restrain Plaintiffs

2 and prevent them from saving their personal possessions. Plaintiffs are entitled to not only

3 monetary damages, see Cal. Civ. Code § 52(a), but also to injunctive relief “to protect the

4 peaceable . . . enjoyment of the right or rights secured,” Cal. Civ. Code § 52.1(b).

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D. Plaintiffs Are Entitled to Injunctive Relief to Restrain the Ongoing

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Violation of Their Constitutional and Statutory Rights.

7

The standard for issuance of a preliminary injunction is a practical one that considers

8 both the likelihood of success on the merits and the nature of the harm caused by the

9 challenged conduct. The moving party may show a probability of success on the merits and

10 the possibility of irreparable harm or that serious questions on the merits exist and the

11 balance of hardships tips strongly in the moving party’s favor. Int’l Jensen, Inc. v

12 Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). This test for issuance of a

13 preliminary injunction is a continuum—that is, the stronger the showing of success on the

14 merits, the less serious the harm must be and the greater the harm caused by the ongoing

15 activity, the less strong the showing on the merits must be. Id. Stated another way:

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The critical element in determining the test to be applied is the relative hardship to the parties. If the balance of the harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988).
Plaintiffs need not show that they will succeed on the merits. Rather, all that
Plaintiffs need to prove is that there is a reasonable probability of success. Gilder v. PGA
Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991); see also Johnson v. Cal. State Bd. Of
Accountancy, 72 F.3d 1427, 1429 (9th Cir. 1995) (recognizing that a plaintiff need only
prove a “fair chance of success on the merits”).
In this case, Plaintiffs have shown a high probability of success on the merits.
Further, Plaintiffs have shown that the acts of Defendants constitute a direct infringement of
their constitutional rights. Further still, the nature of the harm inflicted on Plaintiffs by
Defendants’ unlawful conduct is enormous. And, the harm to Defendants of being

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1 restrained from continuing these raids while the merits of this case are adjudicated is

2 relatively small. There is a clear and powerful need for a preliminary injunction to halt this

3 unlawful and devastating conduct inflicted upon essentially defenseless people.

4

1. Plaintiffs Have Shown A Strong Probability of Success on the

Merits. 5

6

Defendants’ ongoing conduct in summarily confiscating and destroying the personal

7 property of Plaintiffs and the Plaintiff Class directly violates Plaintiffs’ constitutional rights.

8 As set forth in the declarations filed with this Motion—and as further documented in the

9 photographs before the Court—Defendants summarily sweep through areas where homeless

10 people reside, take essentially everything they own that remains in that area at the time, and

11 immediately destroy it. In some instances, no notice whatsoever of the impending

12 destruction is given. In other instances, the notice does not provide sufficient time or is not

13 made so as to inform all of the people who will be affected. Moreover, there is no effort to

14 retain obviously valuable property so that it can be later recovered or claimed by its owners.

15 As a matter of both constitutional and statutory law—to say nothing of basic human

16 decency—there is no lawful basis upon which Defendants may summarily destroy with a

17 bulldozer Plaintiffs’ personal property.

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As set forth in sections A and B above, Defendants’ actions in seizing and

19 destroying, without adequate notice or hearing, valuable personal property that is neither

20 evidence of a crime, nor contraband, plainly violate the Fourth and Fourteenth Amendments

21 of the United States Constitution and Article 1, Section 7(a) and 13 of the California

22 Constitution. Moreover, Defendants’ failure to store Plaintiffs’ property and permit

23 Plaintiffs the opportunity to claim it plainly violates California state law. Thus, Plaintiffs

24 have made a strong showing of likelihood of success on the merits of their claims.

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2. The Balance of Harms Tips Only in Plaintiffs’ Favor.

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This Court need not, in fact, weigh the balance of harms. For when the harm caused by the acts of a defendant amounts to the deprivation of a constitutional right, generally no

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1 further showing of injury is required: the loss of a constitutional right is, in itself, an injury

2 that the law will not tolerate. Associated Gen. Contractors of Cal., Inc. v. Coalition for

3 Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991); Guiterrez v. Municipal Ct., 838 F.2d

4 1031, 1045 (9th Cir. 1988), vacated as moot, 490 U.S. 1016; Citicorp Servs., Inc. v

5 Gillespie, 712 F. Supp. 749, 753 (N.D. Cal. 1989). Similarly, courts recognize that “where

6 a defendant has violated a civil rights statute, we will presume that the plaintiff has suffered

7 irreparable injury from the fact of the defendant’s violation.” Silver Sage Partners, Ltd. v.

8 City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001).

9

Regardless of the above, however, a balancing of the harms does tip overwhelmingly

10 in Plaintiffs’ favor. Defendants destroy essentially the only property that the all-but

11 defenseless Plaintiffs own at the time. Defendants destroy, with impunity, medications that

12 Plaintiffs can ill-afford (if at all) to replace. Defendants destroy Plaintiffs’ dwellings—

13 usually tents—as winter now approaches. Defendants destroy Plaintiffs’ clothing, shoes,

14 blankets, and other essentials of life. And, Defendants destroy inimitable personal items—

15 from important records, to a lock of hair of a loved one, to the last remains of a

16 granddaughter preserved in an urn—without remorse.

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Defendants’ interests, while real, are not nearly so weighty nor immediate. Fresno

18 has an interest in clean and orderly streets, but these interests cannot justify the ongoing and

19 complete destruction of Plaintiffs’ valuable personal possessions. See, e.g., Pottinger, 810

20 F. Supp. at 1570-73. Defendants could readily maintain order and clean streets without the

21 dramatic destruction they inflict. It is not essential to cleaning streets to bring a bulldozer

22 through to destroy everything in its path. And there is no justification whatsoever for the

23 immediate destruction of Plaintiffs’ property, with no opportunity to claim or retrieve it.

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In fact, the very nature of the ongoing raids conducted by Defendants suggests that

25 their purpose is not just to maintain clean and orderly streets at all. Rather, it strongly

26 appears that Defendants are conducting these raids in an ongoing effort to harass the

27 homeless and thereby drive them out of the community entirely. In order to prevail in this

Heller 28 case, however, Plaintiffs do not need to prove that this is the motive for these raids, even
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1 though it seems patently clear. Plaintiffs have shown that Defendants are flagrantly and

2 continuously violating their rights under the Constitution, and that justifies the relief

3 Plaintiffs seek.

4

A reasonable weighing of the nature of the conduct that Plaintiffs seek to enjoin, its

5 impact upon Plaintiffs, and the clear availability of other, less dramatic means to

6 accomplish any legitimate governmental purpose makes plain that a preliminary injunction 7 should issue.9

8 IV. CONCLUSION

9

This action challenges an ongoing policy of the City of Fresno of seizing and

10 destroying the property of the homeless. Plaintiffs have presented overwhelming evidence

11 that this destruction has occurred. Plaintiffs have presented specific evidence that Fresno

12 Police Officers have threatened to repeat this process again. Plaintiffs are entitled to

13 injunctive relief to prevent their property from being destroyed.

14 October 17, 2006 15 16

Respectfully submitted, HELLER EHRMAN LLP

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LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

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ACLU FOUNDATION OF NORTHERN

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CALIFORNIA

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By /s/ Paul Alexander

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Paul Alexander

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Attorneys for Plaintiffs

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9 Plaintiffs have no assets and cannot reasonably post a bond even if one were justified in this case. Plaintiffs respectfully request that this Court decline to impose a bond requirement. See, e.g., Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) ("We have recognized that Rule 65(c) invests the district court with discretion as to the amount of security required, if any.") (quotation marks omitted) (emphasis in original). By their nature, the Plaintiffs are destitute and cannot afford to pay for a bond. See, e.g., Orantes-Hernandez v. Smith, 541 F. Supp. 351, 385 n.42 (C.D. Cal. 1982) (waiving bond where action was brought by destitute plaintiff); Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999) (waiving bond where vast majority of plaintiffs were "very poor"). Further, there is "no realistic likelihood of harm to the defendant[s] from enjoining [their] conduct." Jorgensen, 320 F.3d at 919.

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TABLE OF CONTENTS
Page
INTRODUCTION........................................................................................................ 1
STATEMENT OF FACTS........................................................................................... 2
ARGUMENT ............................................................................................................... 7
A. Defendants Have Violated and Are Violating the Fourth Amendment of the U.S. Constitution................................................................ 7
B. Defendants’ Confiscation and Destruction of Plaintiffs’ Personal Property Violates Plaintiffs’ Constitutional Right to Due Process Under the Fourteenth Amendment.................................................................. 11
C. Defendants’ Conduct Also Violates California Law. ..................................... 14
1. Defendants’ Conduct Violates California Civil Code § 2080 et seq............................................................................................ 14
2. Defendants’ Conduct Violates the Bane Act ....................................... 15
D. Plaintiffs Are Entitled to Injunctive Relief to Restrain the Ongoing Violation of Their Constitutional and Statutory Rights. .................. 17
1. Plaintiffs Have Shown A Strong Probability of Success on the Merits. ....................................................................................... 18
2. The Balance of Harms Tips Only in Plaintiffs’ Favor......................... 18
CONCLUSION…………………………………………………………………….20

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TABLE OF AUTHORITIES

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Page

3

Federal Cases

4 Alaska v. Native Village of Venetie,

856 F.2d 1384 (9th Cir. 1988).................................................................................... 17 5

Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equal.,

6

950 F.2d 1401 (9th Cir. 1991).................................................................................... 19

7 Barahona-Gomez v. Reno,

167 F.3d 1228 (9th Cir. 1999).................................................................................... 20 8

Citicorp Servs., Inc. v Gillespie,

9

712 F. Supp. 749 (N.D. Cal. 1989) ............................................................................ 19

10 Cole v. Doe 1 Through 2 Officers of City of Emeryville Police Dept.,

387 F. Supp. 2d 1084 (N.D. Cal. 2005) ..................................................................... 16 11

Doe By and Through Doe v. Petaluma City Sch. Dist.,

12

830 F. Supp. 1560 (N.D. Cal. 1993) .......................................................................... 15

13 Fuentes v. Shevin,

407 U.S. 67 (1972) ............................................................................................... 11, 12 14

Fuller v. Vines,

15

306 F.3d 65 (9th Cir. 1994) cert denied. , 514 US 1017 (1995) ................................ 10

16 Gilder v. PGA Tour, Inc., 936 F.2d 417 (9th Cir. 1991)...................................................................................... 17
17

Guiterrez v. Municipal Ct.,

18

838 F.2d 1031 (9th Cir. 1988).................................................................................... 19

19 Hodgers-Durgin v. de la Vina,

199 F.3d 1037 (9th Cir. 1999).................................................................................... 16 20

Int’l Jensen, Inc. v Metrosound U.S.A., Inc.,

21

4 F.3d 819 (9th Cir. 1993).......................................................................................... 17

22 Johnson v. Cal. State Bd. Of Accountancy,

72 F.3d 1427 (9th Cir. 1995)...................................................................................... 17 23

Jorgensen v. Cassiday,

24

320 F.3d 906 (9th Cir. 2003)...................................................................................... 20

25 Justin v. City of Los Angeles,

No. CV 012352LGBAIJX, 2000 WL 1808426 (C.D. Cal. Dec. 5, 2000) ................... 9 26

Logan v. Zimmerman Brush Co.,

27

455 U.S. 422 (1982) ................................................................................................... 13

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1 Matthews v. Eldridge,

424 U.S. 319 (1976) ................................................................................................... 12

2

Miranda v. City of Cornelius,

3

429 F.3d 858 (9th Cir. 2005)........................................................................................ 8

4 Orantes-Hernandez v. Smith,

541 F. Supp. 351 (C.D. Cal. 1982)............................................................................. 20

5

Pottinger v. City of Miami,

6

810 F. Supp. 1551 (S.D. Fla. 1992).............................................................................. 8

7 Propert v. District of Columbia,

948 F.2d 1327 (D.C. Cir. 1991) ................................................................................. 12

8

San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose,

9

402 F.3d 962 (9th Cir. 2005)........................................................................................ 8

10 Schneider v. County of San Diego,

28 F.3d 89 (9th Cir. 1994).......................................................................................... 13

11

Silver Sage Partners, Ltd. v. City of Desert Hot Springs,

12

251 F.3d 814 (9th Cir. 2001)...................................................................................... 19

13 Soldal v. Cook County Ill.,

506 U.S. 56 (1992) ....................................................................................................... 7

14

U.S. v. Gooch,

15

6 F.3d 673 (9th Cir. 1993)............................................................................................ 8

16 United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) ..................................................................................................... 12

17

Wong v. City & County of Honolulu,

18

333 F. Supp. 2d 942 (D.Haw. 2004) .......................................................................... 13

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State Cases

20 Jones v. Kmart Corp.,

17 Cal. 4th 329 (1998)................................................................................................ 16

21

O’Toole v. Superior Ct.,

22

140 Cal.App. 4th 488 (2006)...................................................................................... 16

23 People v. Brisendine,

13 Cal. 3d 528 (1975)................................................................................................... 7

24

Venegas v. County of Los Angeles,

25

32 Cal. 4th 820 (2004)................................................................................................ 15

26 Whitworth v. City of Sonoma, 2004 WL 2106606 (Cal.App. Sept. 22, 2004) ........................................................... 16
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Statutes

2 California Civil Code § 2080 et seq. ..................................................................................... 14

3 California Civil Code § 52.1 et seq. ...................................................................................... 15

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Rules

5 United States Const. Amend XIV ......................................................................................... 11

6 United States Const. Amend. IV ............................................................................................. 7

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 1 HELLER EHRMAN LLP

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PAUL ALEXANDER (SBN: 49997) 275 Middlefield Road

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Menlo Park, CA 94025-3506 Telephone: (650) 324-7000

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Facsimile: (650) 324-0638 E-mail: paul.alexander@hellerehrman.com

5 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

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OREN SELLSTROM (SBN: 161074) ELISA DELLA-PIANA (SBN: 226462)

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131 Steuart Street, Suite 400 San Francisco, CA 94105

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Telephone: (415) 543-9444 Facsimile: (415) 543-0296

9 E-mail: osellstrom@lccr.com

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ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN SCHLOSSER (SBN: 49957)

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MICHAEL T. RISHER (SBN: 191627) 39 Drumm Street

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San Francisco, CA 94111 Telephone: (415) 621-2493

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Facsimile: (415) 255-8437 E-mail: mrisher@aclunc.org

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA: FRESNO DIVISION

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18 Pamela Kincaid, Doug Deatherage, Charlene Clay,

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Cynthia Greene, Joanna Garcia, and Randy Johnson, Individually on Behalf of Themselves and All

20 Others Similarly Situated,

Plaintiffs,

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v.

22 City of Fresno, California Department of

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Transportation, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers, Phillip

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Weathers and Will Kempton, individually and in their official capacities; DOES 1-100, inclusive,

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Defendants.

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Civil Action No. 1:06-CV-1445 OWW
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
DATE: November 7, 2006 TIME: 9:00 a.m. CTRM: 3

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1 I. RESPONSE TO CITY’S STATEMENT OF FACTS

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The homeless population in the City of Fresno (“City”) ranges between a “conservative”

3 estimate of 4,412 to a more realistic “Point in Time” estimate of 8,205 as of January, 2005.

4 (Continuum of Care Report, p. 10-11, Ex. B to Supplemental Apper Decl.). These figures have

5 only increased since then, including in particular the number of homeless women. The City’s

6 Opposition Brief (“Opp’n Br.”) does not dispute this, but refers to “available housing at Poverello

7 House, Naomi’s House or the Fresno Rescue Mission,” implying that the homeless in Fresno could

8 stay in one of these facilities but instead “choose to trespass and construct shelters upon property

9 that they do not own.” Opp’n Br. at 1, 2. The City, however, omits the critical facts that:

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• “Naomi House, the primary women’s shelter in town, has only 24 beds; they

hold a lottery each day to determine which women will get those beds.” Supp.

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Apper Decl., ¶ 4.

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• “Additionally, there is space for 44 people in the Poverello House “Village of

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Hope”, where homeless people can stay in small tool sheds.” Id. ¶ 5.

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• There are approximately 134 beds at the Fresno Rescue Mission only for adult

men. “To stay at the Rescue Mission, men must participate in praver services

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regardless of their denomination or faith.” Id.

16 Thus, realistically speaking, for the thousands of homeless men and women in Fresno, there are 25

17 places for women and roughly 200 for men. The idea that homelessness is a voluntary choice is

18 both heartless and, perhaps more importantly, wholly refuted by evidence.

19

The City further claims that it provides “notice” to the homeless that it is about to come and

20 destroy all their property because it is necessary to clean up a given area. Yet the only written

21 notice the City has supplied is a single “memorandum” (in English only) dated August 25, 2006,

22 attached as Exhibit A to the Garner Declaration. What the City’s limited evidence concedes,

23 moreover, is that once the “heavy equipment” moves in, Plaintiffs’ property is destroyed and they

24 are prevented from even the chance to save their few possessions from destruction. Opp’n Br. at 9.

25

Plaintiffs have already presented overwhelming specific evidence in the form of eleven

26 separate declarations, some with clear visual evidence, proving that the City destroyed their

27 personal property with no opportunity to reclaim it. In light of the City’s claim that it has a

Heller 28 “compassionate, patient approach in dealing with the homeless,” (Opp’n Br. at 1) Plaintiffs submit
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1 herewith the declarations of Jeannine Nelson, Deanna Phillips, Emilio Rodriquez, Alfonso

2 Williams, Louis Jiminez, and Keith O’Brien. These provide direct evidence of how the City treats

3 the homeless, which refutes the City’s claim that it has a “compassionate, patient approach.” Each

4 is graphic in its own right, but the experience of Ms. Nelson in June, 2006, in particular

5 demonstrates how the homeless and their property are treated, and how helpless they are to do

6 anything about it:

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As I woke up, I saw Officer Montoya standing over me. Officer Lee ordered me to get up and go sit on the nearby canal bank . . . . Officer Lee said to me, “didn’t I tell you I didn’t want to see you again.” I said I had written permission from the church to be there, but he said he did not believe me and that he did not care. I started to have a hard time breathing, and I said I needed my asthma medication. He refused to allow me to get it, even though it was obvious that I could not breathe well. In fact, Officer Lee told us that we were ruining his life and that we were an embarrassment to the City. Then he and Officer Montoya pushed almost all our belongings into the canal. There were at least four shopping carts full of things and they were all ruined.
Nelson Decl. ¶ 5. Plaintiffs’ evidence clearly proves that the City’s actions are based upon a policy
of the City, as well as an ongoing pattern and practice. Indeed, the City does not deny that this is its
practice; rather, it focuses upon semantics in the place of law. Thus, Plaintiffs’ evidence is more
than sufficient to establish the ongoing violation of the Fourth and Fourteenth Amendments of the
U.S. Constitution, the California Constitution and of California Civil Code §§ 2080 and 52.1.
Finally, the City does not dispute—because it cannot—that the City makes no effort
to retain the property it seizes nor does it provide any process of any kind for homeless people to
reclaim their property. Even the City’s limited evidence confirms that the destruction is immediate
without any effort to store property or allow it to be reclaimed. To the contrary, the City insists that
this would be too hard for it to do, even though the law clearly requires it. See Opp’n Br. at ___.
If the City is claiming that a “clean-up” is too difficult or somehow requires that everything be
destroyed, any such claim is utterly belied by the fact that Rev. Harris and a group of youth
volunteers from the National Action Network cleaned the entire area near E and Ventura Streets in
Fresno, CA, just three weeks before the City decided to destroy all the property of the homeless in
this area:
When we finished our work on August 5, 2006, the strip of land near E Street and Ventura was very clean. It was not necessary to destroy anyone’s property in order

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to clean the area. During the day, we did not encounter drug paraphernalia or elated items that would cause a healthy concern to myself or any of the other volunteers that would cause concern for our health or the healthy of the youngsters who were present to volunteer. Harris Decl. ¶ 4.
Notwithstanding the City’s claim that following the law would be “too difficult,” the City
presents no evidence that it has even investigated the cost or feasibility of any procedure for
preserving the property of the homeless and making it available to be reclaimed. Its baseless claim
that this cannot be done is belied by the fact that many cities do exactly this:
A number of cities across the country and at least one state have instituted formal policies establishing procedures that police officers and other city employees must follow when cleaning public areas where homeless persons are living, including procedures for storing homeless people’s personal belongs if encountered during a clean-up. Ozdeger Decl. ¶ 4. By way of illustration, the District of Columbia; Cincinnati, Ohio; and Portland,
Oregon (followed by the State of Oregon) have all established procedures that comply with the law
and provide for storage of homeless people’s property and an opportunity to retrieve it. See
Ozdeger Decl. ¶¶ 5-8 & Exs. A-C. The city of Pittsburgh, Pennsylvania has done the same. (See
Exhibit A to Request for Judicial Notice). Each of these governmental entities found it quite
feasible to follow rather than flout the law. And there is no good reason why the City of Fresno
cannot do the same.
II. ARGUMENT
A. Plaintiffs Have Shown Specific Evidence Establishing a Strong Likelihood of Success on the Merits.
1. The City Destroys Plaintiffs’ Property with No Chance to Recover it, in Clear Violation of the Fourth Amendment.
Defendants argue that Plaintiffs, unlike the homeless plaintiffs in Pottinger, lack a
reasonable expectation of privacy in their shelters and effects. This argument is irrelevant, because
the United States Supreme Court rendered this part of Pottinger analysis unnecessary for purposes
of evaluating a seizure, as opposed to a search in Soldal v. Cook County Ill., 506 U.S. 56, (1992).
After Soldal, it is clear that the “Fourth Amendment protects against unreasonable interferences in
property interests regardless of whether there is an invasion of privacy.” Miranda v. City of

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1 Cornelius, 429 F.3d 858, 862 (9th Cir. 2005) (citing Soldal). Indeed, the whole point of the

2 Supreme Court’s unanimous opinion in Soldal is that the Fourth Amendment “protects property as

3 well as privacy.” Soldal, 506 U.S. at 62. Plaintiffs do not argue that the City is invading their

4 privacy; rather they argue that the City is seizing and destroying their property. For this question,

5 the existence or lack of privacy expectations is irrelevant.

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Moreover, the City’s attempt to distinguish Pottinger has no merit. The City focuses upon a

7 passage pertaining to the “expectation of privacy,” while ignoring the fact that the Pottinger court

8 did find the homeless possessed a protectable Fourth Amendment privacy right in their property,

9 even if they were trespassing. Pottinger, 810 F. Supp. at 1572. Thus, as Pottinger recognized

10 (even if the City did not), society does recognize that the homeless have a reasonable expectation of

11 privacy in their property.

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The City points to a single district court decision of Love v. City of Chicago, 1996 U.S. Dist.

13 Lexis 16041. A thorough reading of the case, however, reveals that it neither supports the City’s

14 position in this case, nor justifies its conduct. The program at issue in Love was a regular cleaning

15 of the Lower Wacker Drive area where homeless people lived. It was a regular program so that the

16 homeless knew what to expect. The parties had agreed to substantial portions of the cleaning

17 procedure. Chicago provided “safe areas” within 50 feet to which the homeless could move their

18 belongings during the cleaning. Chicago did not destroy all property, even if it was not moved into

19 a safe zone, but “if it is of obvious value, attempts to return it to its rightful owners or turns it over

20 to the Police Department to be inventoried.” Love, 1996 U.S. Dist. Lexis at 9. The court went on

21 to find that the evidence did not establish that “any property claimed by homeless individuals

22 present during the cleaning has been lost since implementation of the temporary procedure.” Id. at

23 11. This is a stark contrast to what the City does in this case – wholesale destruction of everything

24 in its path, even if the owner is present and requesting that it not be destroyed. Moreover, unlike

25 the facts in Love, the City in this case returns no property to its rightful owner nor does it inventory

26 any property that it encounters. Indeed, on this motion the City avowedly seeks the right to

27 continue this conduct. Unlike the situation in Love, it has engaged in no effort to find a way to

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Moreover, the Love court’s Fourth Amendment analysis rested on a factual finding that

2 limited property discarded had been abandoned. Id. at 15. The basis for this was that the extensive

3 notice that was provided, that the cleanings were regularly scheduled, and that the purpose was

4 simply to clean the streets, not to destroy property. The city in that case had established an written

5 procedure for their cleanings that provided for at least three separate notices. Id. at 9-10.

6 Moreover, the city established “safe zones” for the property of the homeless. Id at 10. Finally, city

7 workers would save and inventory certain items of value so that the owner could reclaim them. In

8 this case, the City does none of these things and there is no basis to conclude that Plaintiffs have

9 abandoned their property that the City has seized and immediately destroyed.

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In any event, the City cannot use the argument of “abandonment” to justify its actions in this

11 case because the City seizes and immediately destroys everything that is present, and makes no

12 effort to determine whether it is truly abandoned. Plaintiffs did not abandon their possessions; a 13 person abandons her property only when “she simply no longer desires to possess the thing.” 1

14 Moreover, in Love, the court’s discussion of abandonment was based on an analysis of the

15 plaintiffs’ privacy expectation. See id. at 5 (discussing United States v. Rem, 984 F.2d 806, 810 (7th

16 Cir. 1993). It is clear at this point, however, that although a search violates the Fourth Amendment

17 only if it affects an expectation of privacy, a seizure is unconstitutional if it violates a property

18 interest. The two standards are quite different: abandonment of a privacy expectation does not

19 imply abandonment of a property interest, because “it is possible for a person to retain a property

20 interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the 21 object.”2 The Supreme Court’s decision in Soldal made clear that the Fourth Amendment protects

22 property interests from seizure and this, of course, is the law this Court is bound to follow.

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2. The City’s Destruction of Plaintiffs’ Property Also Violates Plaintiffs’

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Fourteenth Amendment Right to Due Process.

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1 1 Cal. Jur. 3d Lost, and Escheated Property, s 2; see A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998); Katsaris v. United States, 684 F.2d 758, 761-63 (11th Cir. 1982).
2 United States v. Thomas, 864 F.2d 843, 845-46 (D.C. Cir. 1989); see, e.g., United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976);

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Due process requires that the government must provide notice and an opportunity to be

2 heard before it seizes a person’s property, even temporarily, except in “extraordinary situations

3 where some valid governmental interest is at state that justifies postponing the hearing until after

4 the event.” U.S. v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (citations omitted). In

5 this case, the City’s seizure of Plaintiffs’ property violates procedural due process because any

6 notice that the City claims was given was not meaningful.

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The City’s evidence of notice is weak and the notice that was given was grossly inadequate.

8 The City asserts that it has given written warnings on some occasions and oral warnings on others.

9 Opp’n Br. at 2. Yet the City has provided only one notice and it refers to a “clean-up” on August

10 25, 2006. Garner Decl., Exh. A. The raid on the homeless, however, was on August 26, 2006.

11 Contrary to the City’s vague claims, the Plaintiffs received on one occasion a vague verbal warning,

12 on two occasions a limited written warning (one of which was for the wrong date), and in most

13 occasions no warning.

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Moreover, the City clearly violated Plaintiffs’ due process right to be heard before the

15 government destroyed Plaintiffs’ property. See, e.g. Logan v. Zimmerman Brush Co., 455 U.S. 422,

16 434 (1982) (“[T]he State may not finally destroy a property interest without first giving the putative

17 owner an opportunity to present his claim of entitlement.”). Thus, the City violated Plaintiffs’ due

18 process rights by seizing and immediately destroying Plaintiffs’ property without affording

19 Plaintiffs the opportunity to recover it. There is no justification for this violation, as “however

20 weighty the governmental interest may be in a given case, the amount of process required can never

21 be reduced to zero – that is, the government is never relieved of its duty to provide some notice and

22 some opportunity to be heard prior to final deprivation of a property interest.” Propert v. District of

23 Columbia, 948 F. 2d 1327, 1332 (D.C. Cir. 1991).

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3. The City’s Destruction of Plaintiffs’ Property also Violates California Civil Code § 2080 et seq. and the Bane Act.
The City argues that it would be unreasonable for the Court to require it to store the
homeless people’s belongings instead of immediately destroying them. In fact, state law
specifically requires that the City store “found or saved on property subject to its jurisdiction” for a

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1 minimum of 90 days (or three months). Cal. Civ. Code § 2080.6(1); see id. § 2080 (a “public

2 entity” that takes possession of goods or other “personal property” must return them to owner).

3 Nothing in this statute restricts its application to property that has been “lost.”

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A local government may not ignore its statutory duty simply because it believes compliance

5 too expensive or burdensome. Robbins v. Superior Court, 38 Cal.3d 199, 217 (1985); Mooney v.

6 Pickett, 4 Cal.3d 669, 680 (1971). The City has established procedures with regard to “Evidence

7 Handling & Property Booking,” which includes very short provisions on “found property.” See

8 Fresno Police Department Standing Order No. 3.8.12, §§ 06.00 and 06.02. It would not (and

9 cannot) be overly burdensome for the City to obey the law or to follow its own procedures.

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The essence of a Bane Act claim under California Civil Code § 52.1 et seq., is that the

11 defendant, by threats, intimidation or coercion, violated the plaintiff’s state or federal constitutional

12 right or statutory right. See, e.g. Jones v. Kmart Corp., 17 Cal. 4th 329, 344 (1998). In this case,

13 the City has violated Plaintiffs’ Fourth Amendment and Fourteenth Amendment Rights, as well as

14 rights under the California Constitution, and in so doing has violated the Bane Act.

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B. The Balance of Hardships Strongly Favor Issuance of a Preliminary Injunction.

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The City has destroyed essentially all of Plaintiffs’ property, which is necessary for

17 Plaintiffs’ survival, health, income, and mental comfort. The enormity of the harm this destruction

18 has caused Plaintiffs cannot be side-stepped. The finality of losing everything Plaintiffs had in the

19 world does not solely affect the Plaintiffs economically, but is mentally traumatizing as well as

20 destructive of Plaintiffs’ dignity. See Snow Decl. ¶ 6. Indeed, “the hardship to the plaintiffs is

21 irrevocable, irredeemable and total once the property is destroyed.” TRO Hearing Transcript, page

22 38.

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The harm caused by the City’s destruction is irreparable and cannot be resolved through

24 legal damages. When the City destroys Plaintiffs’ identification documents, family heirlooms,

25 necessary medication, and the means by which Plaintiffs’ survive in beyond difficult circumstances,

26 “this is more than just money, it’s not even compensable or measurable in money terms . . ..” TRO

27 Hearing Transcript, page 31.

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The City also destroyed Plaintiffs’ essential medication. See e.g. Clay Decl. ¶ 5; Green

2 Decl. ¶ 6; Johnson Decl. ¶ 3. Pottinger recognized that “the loss of items such as clothes and

3 medicine affects the health and safety of homeless individuals; . . . the prospect of such losses may

4 discourage the homeless from leaving parks and other areas to seek work or medical care.”

5 Pottinger, 810 F. Supp. at 1559. Thus, the harm of the City’s destruction has a grave impact on

6 Plaintiffs’ health, both at the time of destruction and thereafter.

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The City destroyed the means by which Plaintiffs earn what little income they can to sustain

8 themselves. Several Plaintiffs declared that the City destroyed their identification documents. See

9 Garcia Decl.¶ 7; Greene Decl. ¶ 6; and Kincaid Decl. ¶ 5. The final destruction of Plaintiffs’

10 identification documents prevents Plaintiffs from obtaining work and necessary services. See

11 Pottinger, 810 F. Supp. at 1559 (noting the “loss [of personal papers] affected [plaintiff’s] ability to

12 obtain work because many prospective employers required identification.” As Professor Snow

13 pointed out, when their property is destroyed, “the homeless have to start anew, which sets them

14 back further, makes daily subsistence and survival even more difficult, and reduces the prospect of

15 getting off the streets.” Snow Decl. ¶ 6.

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The City destroyed Plaintiffs’ irreplaceable personal possessions which have an

17 immeasurable sentimental value. As this Court recognized:

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the balance of hardships of the Plaintiffs’ interest in protecting against immediate,

irrevocable destruction of their personal property, some of which is so unique and of

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such sentimental value as not to be replaceable by money, against the City’s need to

destroy that property as part of its law enforcement efforts, weighs heavily in favor

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of Plaintiffs.

21 Statement of Decision and Findings at 11. In this case, these items include, inter alia, last

22 remaining family photos, letters from family members and other personal papers, address books

23 containing important contact information, a lock of a child’s hair, an urn containing the ashes of a

24 loved one, and puppies that provide companionship, all which are now gone forever. See Kincaid

25 Decl. ¶ 5; Deatherage Decl. ¶ 5; Garcia Decl. ¶ ¶ 4,5; Johnson Decl. at ¶ 3; Clay Decl. ¶ 4. The loss

26 of property that provides personal comfort to an individual who has almost nothing else is

27 enormous. See Pottinger, 810F. Supp. 2d at 1559 (“For many of us, the loss of our personal effects

Heller 28 may pose a minor inconvenience. However . . . the loss can be devastating for the homeless.”).
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The City’s immediate destruction of Plaintiffs’ property has a devastating effect on the

2 homeless. While the destruction involved in this case would cause irreparable harm to anyone, it

3 denigrates a homeless person to an even greater degree. Id. (“[A] homeless person’s personal

4 property is generally all he owns; therefore, while it may look like “junk” to some people, its value

5 should not be discounted.”). Destroying his or her few remaining possessions has a particularly

6 devastating effect on the homeless because it destroys what little dignity and hope they have left.

7 See Deatherage Decl. ¶ 7 (“The City of Fresno has made it clear to me by destroying my property

8 twice and by the way in which they did that, that because I am a homeless person, I will always be

9 vulnerable to having my property taken and destroyed by City of Fresno workers and police.”).

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C. Any Hardship to the City is Minimal and the City’s Evidence Is Weak

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The City has shown no evidence of any prohibitive cost of maintaining property before

12 destruction. The City speculates about the “disproportionate expense” of storing Plaintiffs’

13 property rather then seizing and immediately destroying it. Opp’n Br. at 17. Yet, the City has

14 offered no proof that this possible cost is prohibitive or would prevent the City from enforcing its

15 laws. Even if there were some additional cost, the Court correctly recognized that “sometimes the

16 Constitution costs us in monetary terms to see that those rights that are not only unalienable, but

17 that are more important than money, are respected and that they are protected.” TRO Tr. at 36.

18 The City’s speculated cost is thus insufficient to tip the balance of hardships in its favor because,

19 “while cost to the government is a factor to be weighed in determining the amount of process due, it

20 is doubtful that cost alone can ever excuse the failure to provide adequate process.” Propert v.

21 District of Columbia, 948 F. 2d 1327, 1335 (D.C. Cir. 1991).

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The City also complains about the “administrative burden and risk of liability” relating to

23 claims of missing property and the challenging logistics of distributing property back to its owners.

24 Opp’n Br. at 17. Yet, the City offers no evidence of even one instance where a city that stores

25 homeless people’s property from raids has had a debilitating administrative effect or false claims.

26 In Pottinger, the court rejected a similar argument, referring to the City’s own “Policy for Handling

27 Evidence, Found Property and Personal Property.” See Pottinger, 810 F. Supp. at 1572. This

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1 reasoning applies equally to this case. The City’s unsupported speculation about “administrative

2 burden” cannot justify its violation of law.

3

The City also conjures up hypothetical health-risk situations with no evidence that these

4 situations have even been an issue for other cities with systems of storage of homeless people’s

5 property in place. Contrary to the City’s concerns, refraining from immediately destroying

6 Plaintiffs’ property does not require “don[ning] full biohazard suits to protect their health and

7 safety,” nor “expos[ing] themselves to being pricked by a dirty AIDS infected syringe . . ..” See

8 Opp’n Br. at 16. As evidenced by Rev. Harris, the volunteers and the homeless’ clean up of one of

9 the areas at issue, they did not require biohazard suits nor encounter drug paraphernalia. And, more

10 to the point if there was any possible health risk (which there is not), “the City would not be

11 prohibited from taking appropriate measures to guard against dangerous conditions posed by items .

12 . ..” Pottinger, 810 F. Supp. at 1573; see also TRO Tr. at 36 (“[I]f there is any risk, injunctive relief

13 is always modifiable.”).

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D. An Injunction Will Promote the Public Interest

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An injunction against the seizure and immediate destruction of Plaintiffs’ property with no

16 opportunity to recover it preserves the constitutional rights of all citizens. Contrary to the City’s

17 assertion, preserving the constitutional rights of the homeless, as with every citizen, is not an

18 interest that necessarily competes with enforcement of law pertaining to public health and safety, or

19 trespass and criminal activity. See Opp’n Br. at 17. The City has no evidence that prohibition of

20 the wholesale seizure and immediate destruction of Plaintiffs’ property would produce a chilling

21 effect or overly burden the City against the public interest.

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E. The Terms of Plaintiffs’ Proposed Preliminary Injunction Are Clear, Straightforward, Simple, and Similar to Orders in Other Cities
The proposed injunction would not prevent police from “removing a loaded firearm from an arrested individual if it knows or reasonably should know that the individual is homeless.” Opp’n Br. at 19. As discussed above, under the proposed injunction the City and police can still enforce the law, but simply cannot take Plaintiffs’ property and then immediately destroy it. Nothing in the wording of the injunction creates any unreasonable uncertainty for the City.

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Finally, the proposed language does not place an unreasonable burden upon the police by

2 requiring them to decipher whether items are Plaintiffs’ property as opposed to trash or abandoned

3 items. The proposed injunction include a non-exclusive, illustrative list of items. It is similar to the

4 injunction found reasonable in Pottinger, 810 F. Supp. at 1571.

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6 November 5, 2006 7 8

Respectfully submitted, HELLER EHRMAN LLP LAWYERS’ COMMITTEE FOR CIVIL RIGHTS ACLU FOUNDATION OF NORTHERN CALIFORNIA

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By /s/ Paul Alexander

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Paul Alexander

Attorneys for Plaintiffs

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i

 
 NOTICE OF SETTLEMENT TO THE CLASS OF ALL PERSONS IN THE CITY OF FRESNO WHO WERE OR
ARE HOMELESS, WITHOUT RESIDENCE, AFTER OCTOBER 17, 2003 AND WHOSE PERSONAL
BELONGINGS WERE UNLAWFULLY TAKEN AND DESTROYED IN A SWEEP, RAID, OR CLEAN UP BY ANY CITY OF FRESNO OR CALTRANS EMPLOYEE ON
OR AFTER OCTOBER 17, 2003:

You may be affected by the settlement in a lawsuit if you were homeless in the

Who’s Affected?

sweep, raid, or clean up by any City of Fresno or Caltrans employee. The Class

City of Fresno after October 17, 2003 and either City of Fresno or Caltrans employees took and destroyed your personal property.
The lawsuit is called Kincaid, et al. v. City of Fresno, et al., No. 06-CV-1445, and is in the United States District Court in Fresno. The parties have agreed to settle this case, and you may be entitled to proceeds from this settlement. This notice describes those who are entitled to benefit from the settlement (who are members of the plaintiff “Class”) and also explains what you must do to make a claim to participate in the settlement.

All persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003 AND whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or clean up by
any City of Fresno or Caltrans employees.
Who’s Not Affected?
People who have never had personal property taken and destroyed by City of Fresno or Caltrans employees.
People whose personal property was taken and destroyed by City of Fresno or Caltrans employees
before October 17, 2003 only.

includes people who are not homeless now or do not now live in Fresno, as long as they were homeless in Fresno any time after October 17, 2003, AND had their personal belongings taken and destroyed in a sweep, raid, or clean up by City of Fresno or Caltrans employees. People who have never had personal property taken and destroyed by City of Fresno or Caltrans employees are NOT included. People whose personal property was taken and destroyed by City of Fresno or Caltrans employees only before October 17, 2003 are NOT included.
If you are unsure whether you are in the

Class, you can get free help by writing to

This notice is not an opinion by the court as to which the Settlement Administrator in this case at the address in this Notice.

side of the lawsuit is right or wrong. This notice is to If you are a member of the Class or you think you might be a Class tell you about the settlement so that if you are a member, you should read this Notice because it will affect your rights.

verified member of the Class, you can participate in

WHAT WERE THE CLAIMS MADE IN THE LAWSUIT?

the settlement.

The Class Representatives sued the Defendants on October 17, 2006.

WHAT IS A CLASS ACTION AND WHO IS INVOLVED?

The Plaintiffs claimed that the City of Fresno and the City and

In a class action lawsuit, people called “Class Representatives” (in this case Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy Johnson, Sandra Thomas, Alphonso Williams, and Jeannine Nelson) sue on behalf of other people who have similar claims. The Class Representatives and all the other people with similar claims are called a “Class,” “Class Members,” or “Plaintiffs.” The settlement in this case will apply to the entire Class.

Caltrans employees conducted sweeps in different locations in the City of Fresno during which they took and destroyed the personal property of homeless people. The Court issued a court order (a “preliminary injunction”) that stopped the City of Fresno and the City employees from taking and destroying the personal belongings of homeless people in the future. The City of Fresno Defendants and the Caltrans Defendants have denied all liability in the case. The parties have agreed to settle these claims before trial.

The City of Fresno and the City and Caltrans employees that were

sued (in this case City of Fresno Mayor Alan Autry, Police Chief

Jerry Dyer, Police Captain Greg Garner, Police Specialist Reynaud Wallace, Community Sanitation employee John Rogers, Community Sanitation employee Phillip Weathers, Caltrans Director Will Kempton, Caltrans employee James Province, and Caltrans employee Daryl Glenn) are called the Defendants. The case is pending in the United States District Court, Eastern District of California, before U.S. District Judge Oliver W. Wanger.

WHAT ARE THE TERMS OF THE SETTLEMENT?
Each of the Defendants has entered into a Settlement Agreement and agreed to a Settlement Plan which governs the distribution of the proceeds from the Settlement. Under these Settlement Agreements, the Defendants have agreed to contribute money to two bank accounts for the benefit of the Class: the “Cash Fund” and the “Living Allowance Fund.” The Cash Fund will contain four hundred eighty-

Pamela Kincaid died during the course of this case. However, the case five thousand dollars ($485,000), funded by a four hundred thousand

has retained the title of Kincaid, et al. v. City of Fresno, et al.

dollar ($400,000) contribution by the City of Fresno and an eighty-

WHO IS THE CLASS AND ARE YOU AFFECTED?

five thousand dollar ($85,000) contribution by Caltrans. The Living Allowance Fund will contain one million dollars ($1,000,000), funded

The Class is all persons in the City of Fresno who were or are entirely by the City of Fresno.

homeless, without residence, after October 17, 2003, AND whose

personal belongings have been unlawfully taken and destroyed in a

If you qualify to receive money from the Cash Fund, you will receive periodic installment payments in cash or check form, based on the level of your award. As a part of the Settlement Agreements, the Court will appoint Liza Apper as the Settlement Administrator to distribute the proceeds of both the Cash Fund and the Living Allowance Fund. Large amounts of cash will not be distributed at any one time unless the Settlement Administrator determines that it is safe to do so. Distributions from the Cash Fund can be made to individual bank accounts and, if you do not have a bank account, the Settlement Administrator will assist you in opening one if you are interested in doing so.
If you qualify to receive proceeds from the Living Allowance Fund, you may direct the Settlement Administrator to issue payments directly to third parties on your behalf to cover living expenses. Examples of what you may use your award from the Living Allowance Fund on include: rent, including pre-paid rent; move-in costs (such as first and last month’s rent and security deposits); utilities, including pre-paid utilities; transportation costs; and other necessities of life.
In addition, the City of Fresno has agreed to follow to the terms of its Administrative Order No. 6-23 which resulted from this case and which sets forth the procedures for handling the personal property of homeless people for the next five years.
The City of Fresno has also agreed to pay one hundred thousand dollars ($100,000) in out-of-pocket expenses and seven hundred fifty thousand dollars ($750,000) in attorneys’ fees to Class counsel for their work on this case.
In addition to its cash payment, Caltrans has also agreed to follow the principles in the preliminary injunction for five years. The Court will retain jurisdiction of the case for five years to resolve any disputes that may arise about compliance with this part of the Settlement.
Further, as a part of the settlement with Caltrans, all homeless people in Fresno are encouraged not set up camps or otherwise trespass or illegally encroach upon Caltrans property.
If the Settlement Agreements are given final approval by the Court, the case will be dismissed and the Settlement Agreements will govern the rights of the parties.
HOW DO I PARTCIPATE IN THE SETTLEMENT AND WHAT BENEFITS AM I ENTITLED TO?
In order to participate in this Settlement, you must file a claim with the Settlement Administrator. If the Settlement Administrator determines that your claim is valid, she will determine the level of your award based upon the criteria described in the Settlement Plan.
There are five levels of awards:
• Level 1: five hundred dollars ($500) from the Cash Fund;
• Level 2: one thousand dollars ($1000) from the Cash Fund;
• Level 3: one thousand dollars ($1000) from the Cash Fund and one thousand five hundred dollars ($1500) from the Living Allowance Fund;
• Level 4: one thousand five hundred dollars ($1500) from the Cash Fund and three thousand five hundred dollars ($3,500) from the Living Allowance Fund;
• Level 5: five thousand dollars ($5,000) from the Cash Fund and nine thousand dollars ($9,000) from the Living Allowance Fund.
Important: these levels may change – either up or down -- depending upon how many valid claims are filed. The Settlement Administrator will determine the validity of the claim, the level at which the claim should be allowed, and whether any change in these levels may be required.
WHO ARE THE LAWYERS IN THIS CASE?

The Class is represented by the Lawyers’ Committee for Civil Rights (San Francisco, CA), and the American Civil Liberties Union (ACLU) of Northern California (San Francisco, CA), and lawyers from the law firms of Howrey, LLP and Heller Ehrman, LLP. These lawyers are experienced in handling similar cases and have been representing the Plaintiffs from the beginning of this case. More information about Class Counsel is available at www.lccr.com, and www.aclunc.org, www.hellerehrman.com, and www.Howrey.com.
The City of Fresno Defendants are represented by the law firm Betts & Wright and the City Attorney’s Office. The Caltrans Defendants are represented by the Legal Division of the California Department of Transportation.
Should I Get My Own Lawyer?
You do not need to hire your own lawyer because Class Counsel is working for you already. If you want to hire your own lawyer you may do so. You will have to pay that lawyer and ask him or her to go to Court for you.
HOW DO I FILE A CLAIM?
In order to file a claim and seek to receive an award from the settlement,
1. You must submit the attached Class Member Claim Form (“claim form”) to the Settlement Administrator, in person or by mail. If you choose to mail your claim form, it must be postmarked by JULY 18, 2008 or you will not receive any award. The address for claim forms to be mailed to is: KINCAID SETTLEMENT ADMINISTRATOR, 4460 W. SHAW AVE., Suite 233, FRESNO, CA, 93722. Claim forms may also be delivered in person to 149 North Fulton, Fresno, CA, 93722.
2. If your claim is determined to be valid by the Settlement Administrator, and the Court approves the settlement, you will be later notified about how to get any part of that money that you are entitled to receive.
YOU SHOULD KEEP ALL RECORDS AND PAPERS YOU MAY HAVE THAT RELATE TO THE CITY OF FRESNO AND THE CITY AND CALTRANS EMPLOYEES’ DESTRUCTION OF THE PERSONAL PROPERTY OF HOMELESS PEOPLE.
You can see and copy the papers filed in the Court and all other records of this lawsuit any time during regular office hours in the office of the Clerk at the U.S. District Court, 2500 Tulare Street, Fresno, CA 93721. Do not call or write the Clerk of the court with questions. Ask all questions to the attorneys for the Class or the Settlement Administrator.
HOW CAN YOU GET MORE INFORMATION?
If you have questions or want more details or other documents about this lawsuit and your rights, you can email the Settlement Administrator at Lizaosb@aol.com or leave a message for Liza Apper at 559-237-0851, or write to: Settlement Administrator, Kincaid v. City of Fresno Class Action, 4460 W. Shaw Ave., Suite 233, Fresno, CA., 93722.
IS THERE A FINAL COURT HEARING ON THE SETTLEMENT? CAN I OBJECT TO IT?
On July 25, 2008 at 3:00 p.m. the Court will hold a hearing and decide whether to grant final approval to the Settlement Agreements and the Settlement Plan as fair and reasonable to the Class. If you have any objection to all or any part of the Settlement Agreement with the City of Fresno defendants or the Settlement Agreement with the Caltrans Defendants, or the Settlement Plan, you must either submit your objection in writing to the Court before that date or appear at the hearing on the Motion for Final Approval at the U.S. District Court, 2500 Tulare Street, Fresno, CA 93721, Courtroom 3, at 3:00 p.m. on July 25, 2008 to state your objection.

 
 Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 1 of 25
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:06−cv−01445−LJO−SKO

Kincaid et al v. City Of Fresno et al Assigned to: District Judge Lawrence J. O'Neill Referred to: Magistrate Judge Sheila K. Oberto Cause: 42:1981 Civil Rights
Plaintiff
Pamela Kincaid

Date Filed: 10/17/2006 Date Terminated: 07/29/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Michael Temple Risher American Civil Liberties Union of Northern California 39 Drumm St. San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org LEAD ATTORNEY

Paul Alexander Arnold & Porter LLP Suite 110 1801 Page Mill Road Palo Alto, CA 94304 650−798−2921 Fax: 650−798−2999 Email: Paul.Alexander@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Doug Deatherage

represented by Michael Temple Risher (See above for address) LEAD ATTORNEY

Paul Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charlene Clay

represented by Eric Lloyd Seyfarth Shaw LLP (San Francisco) 560 Mission Street Suite 3100 San Francisco, CA 94105 415−544−1060 Fax: 415−397−8549 Email: elloyd@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) LEAD ATTORNEY

Paul Alexander (See above for address) LEAD ATTORNEY

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 2 of 25

ATTORNEY TO BE NOTICED

Plaintiff Cynthia Greene

represented by Michael Temple Risher (See above for address) LEAD ATTORNEY

Paul Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Joanna Garcia

represented by Michael Temple Risher (See above for address) LEAD ATTORNEY

Paul Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Randy Johnson

represented by Michael Temple Risher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City Of Fresno
Defendant California Department of Transportation

represented by James B. Betts Betts, Rubin & McGuinness 907 Santa Fe Avenue Suite 201 Fresno, Ca 93721 (559) 438−8500 Fax: (559) 438−6959 Email: br@bettsrubinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Alexander (See above for address)
represented by David Paul Harris Caltrans Legal Division 1120 N Street, Ms57 Sacramento, CA 95814 916−654−2630 Fax: 916−654−6128 Email: david.harris@dot.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 3 of 25

Navtej Singh Bassi California Department of Transportation Legal Division 1120 N Street Sacramento, CA 95814 (916) 654−2630, ext. 3128 Fax: (916) 654−6128 Email: Navtej_Bassi@dot.ca.gov ATTORNEY TO BE NOTICED

Paul Alexander (See above for address) ATTORNEY TO BE NOTICED

Defendant Alan Autry

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jerry Dyer

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Greg Garner

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Reynaud Wallace

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Will Kempton

represented by David Paul Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Navtej Singh Bassi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Rogers

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Phillip Weathers

represented by James B. Betts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 4 of 25

Defendant James Province
Defendant Daryl Glenn

represented by David Paul Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Navtej Singh Bassi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Navtej Singh Bassi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/17/2006
10/17/2006 10/17/2006 10/17/2006
10/17/2006 10/17/2006
10/17/2006 10/17/2006 10/17/2006 10/17/2006 10/17/2006 10/17/2006

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief and for Damages against all defendants by Pamela Kincaid. Attorney Alexander, Paul added. (Attachments: # 1 Exhibit)(Alexander, Paul) (Entered: 10/17/2006)
2 CIVIL COVER SHEET by Pamela Kincaid (Alexander, Paul) (Entered: 10/17/2006)
3 MOTION for TEMPORARY RESTRAINING ORDER and Preliminary Injunction by Pamela Kincaid. (Alexander, Paul) (Entered: 10/17/2006)
4 MEMORANDUM/RESPONSE in SUPPORT re 3 MOTION for TEMPORARY RESTRAINING ORDER and Preliminary Injunction. Memorandum of Points and Authorities in Support of Motion for Temporary Restraining Order and for Order to Show Cause re Issuance of a Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
5 DECLARATION of Charlene Clay in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
6 DECLARATION of Doug Deatherage in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
7 DECLARATION of Joanna Garcia in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
8 DECLARATION of Cynthia Greene in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
9 DECLARATION of Randy Johnson in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
10 DECLARATION of Pamela Kincaid in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
11 DECLARATION of Pamela Streeter in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
12 DECLARATION of Samuel Vizcarrondo in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)

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10/17/2006 10/17/2006
10/17/2006 10/17/2006 10/17/2006 10/17/2006 10/17/2006 10/17/2006 10/17/2006
10/17/2006
10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/19/2006

13 DECLARATION of Tracy Williams in Support of. Motion for Temporary Restraining Order and Preliminary Injunction (Alexander, Paul) (Entered: 10/17/2006)
14 DECLARATION of Michael Rhodes in Support of re 3 MOTION for TEMPORARY RESTRAINING ORDER and Preliminary Injunction. (Attachments: # 1 Appendix # 2 Appendix # 3 Appendix # 4 Appendix # 5 Appendix # 6 Appendix # 7 Appendix)(Alexander, Paul) (Entered: 10/17/2006)
15 DECLARATION of Liza Apper in Support of re 3 MOTION for TEMPORARY RESTRAINING ORDER and Preliminary Injunction. (Alexander, Paul) (Entered: 10/17/2006)
16 NOTICE by all plaintiffs re 3 MOTION for TEMPORARY RESTRAINING ORDER and Preliminary Injunction. Attorney Alexander, Paul added. Temporary Restraining Order Checklist (Alexander, Paul) (Entered: 10/17/2006)
17 NOTICE by all plaintiffs. Certificate of Counsel re Notice (Fed. R. Civ. 65(b)) (Alexander, Paul) (Entered: 10/17/2006)
18 PROPOSED ORDER Proposed Temporary Restraining Order and Order to Show Cause re Preliminary Injunction by Pamela Kincaid. (Alexander, Paul) (Entered: 10/17/2006)
19 CERTIFICATE of SERVICE by Pamela Kincaid. Proof of Service (Alexander, Paul) (Entered: 10/17/2006)
RECEIPT number 100 204082 for $350.00 for Civil Filing Fee from Paul Alexander. (Gil−Garcia, A) (Entered: 10/17/2006)
21 SUMMONS ISSUED as to *Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, Will Kempton, City Of Fresno, California Department of Transportation/CALTRANS* with answer to complaint due within *20* days. Attorney *Paul Alexander* *Heller Ehrman LLP* *275 Middlefield Road* *Menlo Park, CA 94025−3506*. (Gil−Garcia, A) (Entered: 10/17/2006)
22 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 2/22/2007 at 08:45 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Gil−Garcia, A) (Entered: 10/17/2006)
23 MEMORANDUM/RESPONSE in OPPOSITION. Attorney Betts, James B. added. to Application for Temporary Restraining Order (Betts, James) (Entered: 10/18/2006)
24 MEMORANDUM/RESPONSE in OPPOSITION. to Application for Temporary Restraining Order (corrected) (Betts, James) (Entered: 10/18/2006)
25 DECLARATION of Rev. Larry J. Arce in Support of Opposition to Ex Parte Application. (Betts, James) (Entered: 10/18/2006)
26 DECLARATION of James Connell in Support of Opposition to Ex Parte Application. (Betts, James) (Entered: 10/18/2006)
27 DECLARATION of Kerry Trost in Support of Opposition to Ex Parte Application. (Betts, James) (Entered: 10/18/2006)
28 DECLARATION of Capt. Greg Garner in Support of Opposition to Ex Parte Application. (Betts, James) (Entered: 10/18/2006)
29 DECLARATION of Rebecca E. Klisch in Support of Opposition to Ex Parte Application. (Betts, James) (Entered: 10/18/2006)
30 MEMORANDUM/RESPONSE in OPPOSITION. to Ex Parte Application (corrected POS) (Betts, James) (Entered: 10/18/2006)
31 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION FOR TEMPORARY RESTRAINING ORDER HEARING held on 10/19/2006. Parties to submit form of order. Hearing on Preliminary Injunction to be set out in order. Plaintiffs Counsel M. Richer / W. Salstrom present. Defendants Counsel J. Betts / J. Sanchez present. Court Reporter/CD Number: P. Crawford. (Robles, S) (Entered: 10/19/2006)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 6 of 25

10/23/2006 10/23/2006
10/24/2006
10/25/2006 10/25/2006
11/01/2006 11/02/2006 11/06/2006 11/06/2006 11/06/2006
11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006

32 TRANSCRIPT of Application for TRO held on 10/19/06 before Judge Oliver W. Wanger. Court Reporter: Peggy J. Crawford. (TEXT ONLY) (Lundstrom, T) (Entered: 10/23/2006)
33 SUMMONS ISSUED as to *John Rogers, Phillip Weathers* with answer to complaint due within *20* days. Attorney *Paul Alexander* *Heller Ehrman LLP* *275 Middlefield Road* *Menlo Park, CA 94025−3506*. (Gil−Garcia, A) (Entered: 10/23/2006)
34 STATEMENT OF DECISION and findings re: plaintiffs application for temporary restraining order. Hearing on preliminary injunction set for 11/7/2006 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. signed by Judge Oliver W. Wanger on 10/23/2006. (Lucas, G) (Entered: 10/24/2006)
35 PROPOSED ORDER Proposed Order by Pamela Kincaid. (Alexander, Paul) (Entered: 10/25/2006)
36 TEMPORARY RESTRAINING ORDER AND ORDER re Preliminary Injuction Hearing. Opposition by 11/1/06. Reply by 11/6/06 and hearing set for 11/7/06 at 9:00am before Judge Oliver W. Wanger; signed by Judge Oliver W. Wanger on 10/25/06. (Robles, S) (Entered: 10/25/2006)
37 MEMORANDUM/RESPONSE in OPPOSITION. to Application for Preliminary Injunction (Betts, James) (Entered: 11/01/2006)
38 NOTICE by City Of Fresno. Notice of Intent to Introduce Witness Testimony at 11/7/06 Preliminary Injunction Hearing (Betts, James) (Entered: 11/02/2006)
39 DECLARATION of Rev. Larry J. Arce in In Opposition to Application for Preliminary Injunction. (Betts, James) (Entered: 11/06/2006)
40 MEMORANDUM/RESPONSE in SUPPORT. OF PLAINTIFFS' REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (Alexander, Paul) (Entered: 11/06/2006)
41 DECLARATION of Liza Apper in SUPPORT OF re 40 Memorandum/Response in Support of Motion. OF PLAINTIFFS REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (Attachments: # 1 Exhibit A# 2 Exhibit B)(Alexander, Paul) (Entered: 11/06/2006)
42 DECLARATION of Tulin Ozdeger in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Alexander, Paul) (Entered: 11/06/2006)
43 DECLARATION of Reverend Floyd Harris in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
44 DECLARATION of Rebecca Asami in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
45 DECLARATION of John Brown, Jr. in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
46 DECLARATION of Britney Fairburn in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
47 DECLARATION of Edward Grider in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
48 DECLARATION of Jeannine Nelson in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
49 DECLARATION of Randy Johnson, Sr. in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Attachments: # 1 Appendix A)(Alexander, Paul) (Entered: 11/06/2006)
50 DECLARATION of Louis Jimenez in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 7 of 25

11/06/2006 11/06/2006 11/06/2006 11/06/2006
11/06/2006
11/06/2006 11/06/2006
11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006
11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/06/2006 11/07/2006
11/08/2006

51 DECLARATION of Willie Mack in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
52 DECLARATION of Keth O'Brien in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
53 DECLARATION of Deanna Phillips in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
54 DECLARATION of Emilio Rodriguez in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
55 DECLARATION of David A. Snow in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Alexander, Paul) (Entered: 11/06/2006)
56 DECLARATION of Logan Siler in SUPPORT OF re 40 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 11/06/2006)
57 REQUEST for Judicial Notice of Documents Filed in U.S. District Court by Pamela Kincaid. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Alexander, Paul) (Entered: 11/06/2006)
58 DECLARATION of Michael Rhodes. (Supplemental) (Alexander, Paul) (Entered: 11/06/2006)
59 CERTIFICATE of SERVICE by Pamela Kincaid. (Alexander, Paul) (Entered: 11/06/2006)
60 SUMMONS RETURNED EXECUTED by Pamela Kincaid. City Of Fresno served on 10/25/2006, answer due 11/14/2006. (Alexander, Paul) (Entered: 11/06/2006)
61 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Alan Autry served on 10/25/2006, answer due 11/14/2006. (Alexander, Paul) (Entered: 11/06/2006)
62 SUMMONS RETURNED EXECUTED by Pamela Kincaid. California Department of Transportation/CALTRANS served on 10/24/2006, answer due 11/13/2006. (Alexander, Paul) (Entered: 11/06/2006)
63 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Jerry Dyer served on 10/25/2006, answer due 11/14/2006. (Alexander, Paul) (Entered: 11/06/2006)
64 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Greg Garner served on 10/25/2006, answer due 11/14/2006. (Alexander, Paul) (Entered: 11/06/2006)
65 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Will Kempton served on 10/24/2006, answer due 11/13/2006. (Alexander, Paul) (Entered: 11/06/2006)
66 SUMMONS RETURNED EXECUTED by Pamela Kincaid. John Rogers served on 10/26/2006, answer due 11/15/2006. (Alexander, Paul) (Entered: 11/06/2006)
67 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Reynaud Wallace served on 10/25/2006, answer due 11/14/2006. (Alexander, Paul) (Entered: 11/06/2006)
68 SUMMONS RETURNED EXECUTED by Pamela Kincaid. Phillip Weathers served on 10/26/2006, answer due 11/15/2006. (Alexander, Paul) (Entered: 11/06/2006)
69 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : EVIDENTIARY HEARING held on 11/7/2006. Testimony received and exhibits admitted. Further Evidentiary Hearing set for 11/16/2006 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Witnesses: Liza Apper, James Connell, Floyd Harris, Jr.)Court Reporter/CD Number: K. Lopez. (Lucas, G) (Entered: 11/08/2006)
70 APPENDIX by Pamela Kincaid re 58 Declaration filed by Pamela Kincaid,. (Appendix A to Supplemental Declaration of Michael Rhodes) (Alexander, Paul) (Entered: 11/08/2006)

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11/09/2006 11/13/2006 11/13/2006 11/14/2006 11/16/2006
11/17/2006
11/21/2006 11/21/2006 11/22/2006
11/22/2006 11/28/2006 11/28/2006 11/29/2006 11/29/2006 11/30/2006 11/30/2006

71 APPENDIX by Pamela Kincaid re 55 Declaration filed by Pamela Kincaid,. (Appendix A to DECLARATION of David A. Snow) (Alexander, Paul) (Entered: 11/09/2006)
72 STIPULATION FOR EXTENSION OF TIME BY AND BETWEEN PLAINTIFFS CALIFORNIA DEPT OF TRANSPORTAITON AND WILL KEMPTON IN HIS OFFICIAL CAPACITY by California Department of Transportation/CALTRANS. Attorney Bassi, Navtej Singh added. (Bassi, Navtej) (Entered: 11/13/2006)
74 TRANSCRIPT of Preliminary Injunction Hearing, Volume 1 held on 11/7/06 before Judge Oliver W. Wanger. Court Reporter: Karen Lopez. (TEXT ONLY) (Lundstrom, T) (Entered: 11/15/2006)
73 ANSWER to COMPLAINT with Jury Demand by John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno. Attorney Betts, James B. added.(Betts, James) (Entered: 11/14/2006)
75 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : PREMLIMINARY INJUNCTION HEARING held on 11/16/2006. Testimony received. Exhibits admitted. Hearing continued to 11/17/2006 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Plaintiffs Counsel P. Alexander present. Defendants Counsel J. Betts present. Court Reporter/CD Number: K. Lopez. (Robles, S) (Entered: 11/17/2006)
76 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION FOR PRELIMINARY INJUNCTION HEARING held on 11/17/2006. Testimony received. Exhibits admitted. Motion Hearing continued to 11/22/2006 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Plaintiffs Counsel P. Alexander present. Defendants Counsel J. Betts present. Court Reporter/CD Number: K. Lopez. (Robles, S) (Entered: 11/20/2006)
77 TRANSCRIPT of Hearing on Preliminary Injunction; Testimony of Andrew Souza held on 11/17/06 before Judge Oliver W. Wanger. Court Reporter: Karen Lopez. (TEXT ONLY) (Lundstrom, T) (Entered: 11/21/2006)
78 TRANSCRIPT of Hearing on Preliminary Injunction; Testimony of Thomas Deatherage, Nelson Williams and Kincaid held on 11/16/06 before Judge Oliver W. Wanger. Court Reporter: Karen Lopez. (TEXT ONLY) (Lundstrom, T) (Entered: 11/21/2006)
79 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION FOR PRELIMINARY INJUNCTION HEARING held on 11/22/2006. Testimony received. Exhibits admitted. Parties rest. Closing arguments. Court GRANTS preliminary injunction. Counsel to submit proposed order. Plaintiffs Counsel P. Alexander present. Defendants Counsel J. Betts present. Court Reporter/CD Number: K. Lopez. (Robles, S) (Entered: 11/22/2006)
80 ORDER Case Management due by 11/29/2006 for plaintiffs to submit proposed findings of fact and conclusions of law relative to the issuance of a preliminary injunction, signed by Judge Oliver W. Wanger on 11/22/06. (Robles, S) (Entered: 11/22/2006)
81 TRANSCRIPT of Hearing on Preliminary Injunction Ruling held on 11/22/06 before Judge Wanger. Court Reporter: Karen Lopez. Tape Number: None. (TEXT ONLY ENTRY) (Hellings, J) (Entered: 11/28/2006)
82 PROPOSED ORDER Granting Preliminary Injunction. (Betts, James) (Entered: 11/28/2006)
83 BRIEF PLAINTIFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Pamela Kincaid. (Alexander, Paul) (Entered: 11/29/2006)
84 CERTIFICATE of SERVICE by Pamela Kincaid re 83 Brief. (Alexander, Paul) (Entered: 11/29/2006)
85 PROPOSED ORDER GRANTING PRELIMINARY INJUNCTION by Pamela Kincaid. (Alexander, Paul) (Entered: 11/30/2006)
86 AMENDED DOCUMENT by City Of Fresno.. Alternative Proposed Order (Betts, James) (Entered: 11/30/2006)

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12/04/2006 12/04/2006 12/04/2006 12/04/2006 12/08/2006 12/11/2006 12/13/2006
12/21/2006 12/28/2006 01/12/2007
01/12/2007 01/12/2007 02/07/2007 02/07/2007 02/07/2007 02/08/2007
02/09/2007 02/09/2007 02/09/2007

87 CERTIFICATE of SERVICE by Pamela Kincaid. (Alexander, Paul) (Entered: 12/04/2006)
88 STATEMENT of City of Fresno − Ltr to The Honorable Oliver Wanger by Defendant City Of Fresno. (Betts, James) (Entered: 12/04/2006)
89 OBJECTIONS to FINDINGS and RECOMMENDATIONS by Defendant City Of Fresno. (Betts, James) (Entered: 12/04/2006)
90 PROPOSED FINDINGS of FACT by City Of Fresno.(Betts, James) (Entered: 12/04/2006)
91 STATEMENT OF DECISION AND FINDINGS RE: PLAINTIFFS' APPLICATION FOR A PRELIMINARY INJUNCTION AND PRELIMINARY INJUNCTION; signed by Judge Oliver W. Wanger on 12/8/06. (Robles, S) (Entered: 12/08/2006)
92 PRELIMINARY INJUNCTION signed by Judge Oliver W. Wanger on 12/8/2006. (Lucas, G) (Entered: 12/11/2006)
93 STIPULATION RE FILING OF FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES by Pamela Kincaid. (Attachments: # 1 Exhibit A (FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES)# 2 Certificate Certificate of Service)(Alexander, Paul) (Entered: 12/13/2006)
94 ERRATA to Statement of Decision and Findings re Plaintiffs' Application for a Preliminary Injunction 91 ; signed by Judge Oliver W. Wanger on 12/18/06. (Rooney, M) (Entered: 12/21/2006)
95 STIPULATION to Extend Time to File Response by California Department of Transportation/CALTRANS. (Bassi, Navtej) (Entered: 12/28/2006)
96 MOTION to DISMISS for LACK of JURISDICTION , etc. by California Department of Transportation/CALTRANS. Motion Hearing set for 3/12/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 01/12/2007)
97 DECLARATION of David P. Harris in SUPPORT OF re 96 MOTION to DISMISS for LACK of JURISDICTION , etc.. (Bassi, Navtej) (Entered: 01/12/2007)
98 PROPOSED ORDER [PROPOSED] ORDER re 96 MOTION to DISMISS for LACK of JURISDICTION , etc.. (Bassi, Navtej) (Entered: 01/12/2007)
99 First AMENDED COMPLAINT against all defendants by Pamela Kincaid.(Alexander, Paul) (Entered: 02/07/2007)
100 STIPULATION re 99 Amended Complaint by Pamela Kincaid. (Alexander, Paul) (Entered: 02/07/2007)
101 CERTIFICATE of SERVICE by Pamela Kincaid re 99 Amended Complaint, 100 Stipulation. (Alexander, Paul) (Entered: 02/07/2007)
102 SUMMONS ISSUED as to *James Province, Daryl Glenn* with answer to complaint due within *20* days. Attorney *Paul Alexander* *Heller Ehman LLP* *275 Middlefield Road* *Menlo Park, CA 94025−3506*. (Gil−Garcia, A) (Entered: 02/08/2007)
104 TRANSCRIPT of hearing on preliminary injunction held on 11/16/06 before Judge Wanger (volume 2); Court Reporter − K. Lopez. (TEXT ONLY) (Rooney, M) (Entered: 02/13/2007)
105 TRANSCRIPT of hearing on preliminary injunction held on 11/17/06 before Judge Wanger (volume 3); Court Reporter − K. Lopez. (TEXT ONLY) (Rooney, M) (Entered: 02/13/2007)
106 TRANSCRIPT of hearing on preliminary injunction held on 11/22/07 before Judge Wanger (volume 4); Court Reporter − K. Lopez. (TEXT ONLY) (Rooney, M) (Entered: 02/13/2007)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 10 of 25

02/12/2007 02/22/2007 02/22/2007 02/22/2007 02/23/2007
02/23/2007 03/01/2007 03/01/2007 03/01/2007 03/02/2007 03/06/2007 03/07/2007
03/09/2007 03/12/2007 03/19/2007
03/23/2007

103 MINUTE ORDER: TEXT ONLY ENTRY − Pursuant to the agreement of counsel, the Scheduling Conference currently set for 2/22/07 has been continued to 3/1/2007 at 08:45 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Robles, S) (Entered: 02/12/2007)
107 JOINT SCHEDULING REPORT by Pamela Kincaid. (Alexander, Paul) (Entered: 02/22/2007)
108 SECOND AMENDED COMPLAINT against all defendants by Pamela Kincaid.(Alexander, Paul) (Entered: 02/22/2007)
109 CERTIFICATE of SERVICE by Pamela Kincaid re 108 Amended Complaint, 107 Scheduling Report. (Alexander, Paul) (Entered: 02/22/2007)
110 MEMORANDUM/RESPONSE in OPPOSITION. PLAINTIFFS OPPOSITION TO MOTION TO DISMISS UNDER Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(e), AND 12(f) (Attachments: # 1 Declaration OF PAUL ALEXANDER IN SUPPORT OF PLAINTIFFS OPPOSITION TO MOTION TO DISMISS UNDER Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(e), AND 12(f)# 2 Exhibit A to DECLARATION OF PAUL ALEXANDER IN SUPPORT OF PLAINTIFFS OPPOSITION TO MOTION TO DISMISS UNDER Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(e), AND 12(f))(Alexander, Paul) (Entered: 02/23/2007)
111 CERTIFICATE of SERVICE by Pamela Kincaid re 110 Memorandum/Response in Opposition to Motion,. (Alexander, Paul) (Entered: 02/23/2007)
112 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : SCHEDULING CONFERENCE held on 3/1/2007. Order to follow. Court Reporter/CD Number: P. Crawford. (Robles, S) (Entered: 03/01/2007)
113 Second AMENDED COMPLAINT against all defendants by Pamela Kincaid.(Alexander, Paul) (Entered: 03/01/2007)
114 CERTIFICATE of SERVICE by Pamela Kincaid re 113 Amended Complaint. (Alexander, Paul) (Entered: 03/01/2007)
115 REPLY to RESPONSE to MOTION. of Defendant Kempton (Bassi, Navtej) (Entered: 03/02/2007)
116 SUMMONS RETURNED EXECUTED by Pamela Kincaid. James Province served on 2/28/2007, answer due 3/20/2007; Daryl Glenn served on 3/1/2007, answer due 3/21/2007. (Alexander, Paul) (Entered: 03/06/2007)
117 SCHEDULING ORDER signed by Judge Oliver W. Wanger on 3/6/07 ORDERING Discovery due by 1/31/2008. Non−Dispositive Motions due by 2/15/2008. Dispositive Motion due by 2/28/2008. Settlement Conference Date (to be scheduled). Pretrial Conference set for 5/5/2008 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Jury Trial set for 6/10/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Carter−Ford, R) (Entered: 03/07/2007)
118 STIPULATION for Extension of Time to File Response to Second Amended Complaint, etc. by Daryl Glenn. Attorney Bassi, Navtej Singh added. (Bassi, Navtej) (Entered: 03/09/2007)
119 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION TO DISMISS HEARING held on 3/12/2007. Matter argued and submitted. Order to be prepared by the court. Court Reporter/CD Number: ECRO. (Robles, S) (Entered: 03/12/2007)
120 MEMORANDUM, OPINION and ORDER DENYING defendant Kempton's 96 motion to dismiss for failure to state a claim under Rule 8(a); motion to dismiss based on Eleventh Amendment sovereign immunity;; motion to dismiss on unclean hands; motion to dismiss for a more definite statement pursuant to Rule 12(e); and motion to strike pursuant to Rule 12(f); motions terminated; order signed by Judge Oliver W. Wanger on 3/16/07. (Rooney, M) (Entered: 03/19/2007)
121 ANSWER to AMENDED COMPLAINT (Second Amended Complaint) by Will Kempton.(Bassi, Navtej) (Entered: 03/23/2007)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 11 of 25

03/27/2007 03/29/2007
03/30/2007 03/30/2007 03/30/2007
04/05/2007 04/12/2007
05/25/2007 05/29/2007
06/15/2007 06/15/2007 06/15/2007 06/15/2007 07/02/2007 07/02/2007 07/02/2007 07/03/2007 07/03/2007

122 STIPULATION and PROPOSED ORDER Amending March 6, 2007 Scheduling Order by Pamela Kincaid. (Alexander, Paul) (Entered: 03/27/2007)
123 STIPULATION and ORDER AMENDING 3/6/07 SCHEDULING ORDER signed by Judge Oliver W. Wanger on 3/27/07 ORDERING that Paragraphs 2(a) and (b), and paragraph 3 of the 3/6/07, 117 SchedulingOrder are hereby amended to provide that each party may submit written discovery to the other commencing on 5/1/07, that responses to that discovery will be due on 5/31/07, and the parties will endeavor to resolve any disputes pertaining to written discover by 6/30/07, if possible. (Carter−Ford, R) (Entered: 03/29/2007)
124 ANSWER to AMENDED COMPLAINT (Second Amended Complaint) by Daryl Glenn.(Bassi, Navtej) (Entered: 03/30/2007)
125 ANSWER to AMENDED COMPLAINT (Second Amended Complaint) by James Province.(Bassi, Navtej) (Entered: 03/30/2007)
126 MINUTE ORDER: TEXT ONLY ENTRY − A Settlement Conference has been set in this matter for 4/12/2007 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Parties are to submit a Confidential Settlement Conference Statement directly to chambers (do not e−file) at least seven (7) days prior to the hearing. (Robles, S) (Entered: 03/30/2007)
127 NOTICE by all plaintiffs. NOTICE OF SUBMISSION OF CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT (Alexander, Paul) (Entered: 04/05/2007)
128 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : SETTLEMENT CONFERENCE held on 4/12/2007. Case did not settle. Plaintiffs Counsel P. Alexander present. Defendants Counsel J. Betts; D. Harris present. (Robles, S) (Entered: 04/13/2007)
129 STIPULATION and PROPOSED ORDER Re Responding to First Set of Discovery Requests by Pamela Kincaid. (Alexander, Paul) (Entered: 05/25/2007)
130 STIPULATION re Responding to First Set of Discovery Requests; ORDER − Discovery responses by 6/11/2007; resolve any disputes pertaining to written discovery by 6/30/2007. signed by Judge Sandra M. Snyder on 5/29/2007. (Herman, H) (Entered: 05/29/2007)
131 MOTION to CERTIFY CLASS by Pamela Kincaid.Motion Hearing set for 7/24/2007 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Alexander, Paul) (Entered: 06/15/2007)
132 MEMORANDUM/RESPONSE in SUPPORT re 131 MOTION to CERTIFY CLASS. (Alexander, Paul) (Entered: 06/15/2007)
133 PROPOSED ORDER re 131 MOTION to CERTIFY CLASS, 132 Memorandum/Response in Support of Motion by Pamela Kincaid. (Alexander, Paul) (Entered: 06/15/2007)
134 CERTIFICATE of SERVICE by Pamela Kincaid re 131 MOTION to CERTIFY CLASS, 133 Proposed Order, 132 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 06/15/2007)
135 MEMORANDUM/RESPONSE in OPPOSITION re 131 MOTION to CERTIFY CLASS. (Betts, James) (Entered: 07/02/2007)
136 DECLARATION of Kerry Trost in Opposition to re 131 MOTION to CERTIFY CLASS. (Betts, James) (Entered: 07/02/2007)
137 JOINDER by Will Kempton in re 131 MOTION to CERTIFY CLASS filed by Pamela Kincaid. JOINDER IN OPPOSITION (Bassi, Navtej) (Entered: 07/02/2007)
138 STIPULATION and PROPOSED ORDER re Deadline to Resolve Written Discovery Disputes by Pamela Kincaid. (Alexander, Paul) (Entered: 07/03/2007)
139 MINUTE ORDER: ***TEXT ONLY ENTRY*** The Hearing re Motion to Certify Class currently set for 7/24/2007 has been continued to 7/30/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered:

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 12 of 25

07/06/2007 07/06/2007 07/10/2007 07/11/2007 07/11/2007 07/11/2007 07/30/2007
08/14/2007 09/04/2007 09/13/2007 09/13/2007 09/13/2007 09/14/2007 09/14/2007 09/17/2007 09/17/2007

07/03/2007)
140 STIPULATION and ORDER re deadline to resolve written discovery disputes; the parties shall endeavor to resolve any disputes to written discovery by 7/17/07; order signed by Judge Oliver W. Wanger on 7/3/07. (Rooney, M) (Entered: 07/06/2007)
141 STIPULATION and PROPOSED ORDER Stipulation and proposed order by Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy Johnson. Attorney Risher, Michael Temple added. (Risher, Michael) (Entered: 07/06/2007)
142 STIPULATION and ORDER extending date to file plaintiffs' reply memorandum of points and authorities in support of motion for class certification signed by Judge Oliver W. Wanger on 7/10/2007. (Timken, A) (Entered: 07/10/2007)
143 MEMORANDUM/RESPONSE in SUPPORT. Plaintiffs' Reply Memorandum of Points and Authorities in Support of Motion for Class Certification (Alexander, Paul) (Entered: 07/11/2007)
144 DECLARATION of Paul Alexander in SUPPORT OF re 143 Memorandum/Response in Support of Motion. (Attachments: # 1 Exhibit 1−25# 2 Exhibit 26−50)(Alexander, Paul) (Entered: 07/11/2007)
145 CERTIFICATE of SERVICE by Pamela Kincaid re 144 Declaration, 143 Memorandum/Response in Support of Motion. (Alexander, Paul) (Entered: 07/11/2007)
146 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION TO CERTIFY CLASS HEARING held on 7/30/2007. Motion is granted. Plaintiff to file proposed notice to class and plan by 9/4/2007. Hearing on class administration hearing is set for 9/17/2007 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Plaintiffs Counsel P. Alexander present. Defendants Counsel J. Betts/D. Harris present. Court Reporter/CD Number: K. Lopez and ECRO. (Lucas, G) (Entered: 07/31/2007)
147 MEMORANDUM DECISION AND ORDER granting pltf's 131 MOTION to CERTIFY CLASS filed by Pamela Kincaid signed by Judge Oliver W. Wanger on 08/14/07. (Kusamura, W) (Entered: 08/14/2007)
148 NOTICE by all plaintiffs. Proposed Notice of Pendency of Class Action and Plan for Distribution of Class Notice (Attachments: # 1 Exhibit A)(Alexander, Paul) (Entered: 09/04/2007)
149 NOTICE by Will Kempton. Response of Defendants Kempton, Province, and Glenn to Proposed Notice of Pendency of Class Action (Bassi, Navtej) (Entered: 09/13/2007)
150 REQUEST for Status Conference and Appointment of Discovery Master to Supervise Discovery by Pamela Kincaid. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Alexander, Paul) (Entered: 09/13/2007)
153 TRANSCRIPT of Hearing re Motion to Certify Class held on 07/30/2007 before Judge Wanger. Court Reporter: ECRO. (TEXT ONLY) (Arellano, S.) (Entered: 09/17/2007)
151 NOTICE by all plaintiffs. PLAINTIFFS REPLY TO DEFENDANTS WILL KEMPTON, JAMES PROVINCE, AND DARYL GLENNS RESPONSE TO PLAINTIFFS PROPOSED NOTICE OF PENDENCY OF CLASS ACTION (Attachments: # 1 Exhibit A# 2 Exhibit B)(Alexander, Paul) (Entered: 09/14/2007)
152 REPLY/RESPONSE to Notice of Class Action by John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno. (Betts, James) (Entered: 09/14/2007)
154 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : Class Administration Hearing held on 9/17/2007. Class notice is reviewed. Plaintiffs counsel to submit proposed order. Court Reporter/CD Number: K. Lopez. (Lucas, G) (Entered: 09/17/2007)
155 TRANSCRIPT of Motion To Certify Class held on Monday, July 30, 2007 before Judge Oliver W. Wanger. Court Reporter: Karen Lopez. (TEXT ONLY) (Scrivner, E)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 13 of 25

09/20/2007 09/20/2007 09/20/2007 09/28/2007 10/01/2007 10/01/2007 10/02/2007 10/30/2007 12/05/2007 12/05/2007 12/06/2007
12/10/2007 12/11/2007
12/12/2007

(Entered: 09/18/2007)
156 PROPOSED ORDER Re Notice of Pendency of Class Action and Distribution Plan by Pamela Kincaid. (Attachments: # 1 Exhibit A)(Alexander, Paul) (Entered: 09/20/2007)
157 CERTIFICATE of SERVICE by Pamela Kincaid re 156 Proposed Order. (Alexander, Paul) (Entered: 09/20/2007)
158 NOTICE by all plaintiffs re 157 Certificate of Service, 156 Proposed Order. Cover Letter To The Chambers of The Honorable Oliver W. Wanger (Alexander, Paul) (Entered: 09/20/2007)
159 NOTICE by all plaintiffs re 157 Certificate of Service, 156 Proposed Order, 158 Notice − Other − ATY. Spanish Translation of Ex. A (Notice of Pendency of Class Action and Distribution Plan) (Alexander, Paul) (Entered: 09/28/2007)
160 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Pamela Kincaid. (Alexander, Paul) (Entered: 10/01/2007)
161 CERTIFICATE of SERVICE by Pamela Kincaid re 160 Designation/Disclosure of Expert Witness. (Alexander, Paul) (Entered: 10/01/2007)
162 ORDER re: Notice of Pendency of Class Action and Plan for Distribution of Class Action, signed by Judge Oliver W. Wanger on 09/28/2007. (Martin, S) (Entered: 10/02/2007)
163 TRANSCRIPT of Class Administration Hearing held on Monday, September 17, 2007 before Judge Oliver W. Wanger. Court Reporter: Karen Lopez. (TEXT ONLY) (Martin, S) (Entered: 10/30/2007)
164 EX PARTE APPLICATION by Pamela Kincaid for Ex Parte for An Order Requiring Defendant City of Fresno To Atten Deposition and Produce Documents. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Alexander, Paul) (Entered: 12/05/2007)
165 CERTIFICATE of SERVICE by Pamela Kincaid re 164 Ex Parte Application. (Alexander, Paul) (Entered: 12/05/2007)
166 MINUTE ORDER (TEXT Only) signed by Judge Sandra M. Snyder on 12/6/2007: Court hereby Grants Plaintiff's 164 Ex Parte Application and SETS a Mandatory TELEPHONIC Status Conference re Depositions for 12/11/2007 at 10:00 AM in Courtroom 7 (SMS) before Judge Sandra M. Snyder. NOTE: Plaintiff's counsel will connect defense counsel by conference call and then place the call to Judge Snyder's chambers. A two page synopsis (no exhibits or attachments) from each side is due by Monday, Dec. 10, 2007 noon; fax to 559−494−3920. (Herman, H) (Entered: 12/06/2007)
167 BRIEF Synopsis Re ExParte Application for an Order Requiring Defendant City of Fresno to Attend Depositions and Produce Documents by Pamela Kincaid. (Alexander, Paul) (Entered: 12/10/2007)
168 MINUTES (Text Only Entry) for proceedings held before Judge Sandra M. Snyder: MANDATORY TELEPHONIC STATUS CONFERENCE re: depositions briefly held on 12/11/07 and CONTINUED to 12/12/07 @ 11:00am with Judge Snyder (SMS), due to the unavailability of Attorney Betts and in order for Judges Wanger and Snyder to confer. Plaintiffs' counsel to arrange the conference call. Signed by Judge Sandra M. Snyder on 12/11/07. Plaintiffs' Counsel Paul Alexander and Melyssa Minamoto telephonically present. Defendant's Counsel David Harris telephonically present. Court Reporter/CD Number: N/A. (Robles, F.) (Entered: 12/11/2007)
169 MINUTES (Text Only Entry) for proceedings held before Judge Sandra M. Snyder: FURTHER TELEPHONIC STATUS CONFERENCE re: depositions held on 12/12/07. Court advised counsel that a mandatory conference call would be set sua sponte by the Court at the conclusion of Attorney Betts' trial before Judge Wanger. The Court assured plaintiffs' counsel that she understood the urgency re: obtaining discovery sought. Counsel were also advised that it appeared the scheduling order 117 dates awould have to be amended by Judge Wanger. Plaintiffs' Counsel Paul Alexander and Melyssa Minamoto, Alan Schlosser and Michael Risher telephonically present. Defendant's Counsel David Harris present; James Betts NOT PRESENT.

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 14 of 25

12/19/2007
01/09/2008 01/09/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008
02/20/2008

Court Reporter/CD Number: N/A. (Robles, F.) (Entered: 12/12/2007)
170 MINUTES (Text Only Entry) for proceedings held before Judge Sandra M. Snyder: TELEPHONIC DISCOVERY DISPUTE re: Plaintiffs' ex parte application for an order requiring defendant City to attend depositions and produce documents 164 HELD on 12/19/07 and DENIED, without prejudice. Counsel agree to make themselves available for desired depositions the full week of 1/14−18/08. Attorney Betts will produce documents sought by Plaintiffs before the January depositions to the best of his ability, including but not limited to meeting minutes for police advisory board meetings, discussing the homeless, any and all protocols governing homeless "sweeps" or "clean−ups", e−mails/memoranda re: homeless problem/sweeps/clean−ups/relocations, etc. Attorney Betts expressed exception with requested budget documents. The Court opined their probable relevance if the City presented an "affordability defense" in pleadings/at hearings. Counsel shall continue to meet and confer re: document production and may meet telephonically with the Court at any time. Signed by Judge Sandra M. Snyder on 12/19/07. Plaintiffs' Counsel Paul Alexander and Melyssa Minamoto telephonically present. Defendants' Counsel James Betts and David Harris telephonically present. Court Reporter/CD Number: N/A. (Robles, F.) (Entered: 12/19/2007)
171 DECLARATION of Eric Trostad in SUPPORT OF. PLAINTIFFS REPORT ON CLASS OPT−OUTS (Alexander, Paul) (Entered: 01/09/2008)
172 CERTIFICATE of SERVICE by Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy Johnson re 171 . (Alexander, Paul) (Entered: 01/09/2008)
173 MOTION to COMPEL Notice of Motion to Exclude Plaintiffs' Expert Testimony, etc. by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
174 MOTION to COMPEL Declaration of David P. Harris in Support Thereof by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
175 PROPOSED ORDER proposed order re 174 MOTION to COMPEL Declaration of David P. Harris in Support Thereof, 173 MOTION to COMPEL Notice of Motion to Exclude Plaintiffs' Expert Testimony, etc.. (Bassi, Navtej) (Entered: 02/15/2008)
176 MOTION to COMPEL Points and authorities in support thereof by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
177 MOTION to COMPEL Exhibit 1 to Points and Authorities in Support thereof by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
178 MOTION to COMPEL Exhibits 2−6 to Points and Authorities in Support Thereof by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
179 MOTION to COMPEL Certificate and Proof of Service by Will Kempton. Motion Hearing set for 3/21/2008 at 09:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder. (Bassi, Navtej) (Entered: 02/15/2008)
180 CLERK'S NOTICE to Navtej Bassi as to 174 , 176 , 177 , and 178 : When filing a motion, use the Motion event when filing the MOTION DOCUMENTONLY. Documents filed in support of your motion should be filed as attachments to your motion document, or individually using the specific event such as Declaration, Memorandum in Support, etc., found under the heading Motion−Related Documents. If you need assistance, please contact the CM/ECFhelp desk at 866−884−5444; and 179 : When filing a proof of service, use the event Certificate of Service. (Hellings, J) (Entered: 02/15/2008)
181 MINUTE ORDER (Text Only Entry) regarding Defendants' Motion to Exclude Plaintiffs' Expert Testimony, etc., or Compel Production of Experts' Reports and for Monetary Sanctions 173 : Local Rule 37−251(a) requires a joint statement re: discovery disputes be filed on or before three (3) court days prior to the scheduled

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 15 of 25

02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008
02/28/2008
02/28/2008 02/28/2008
02/28/2008
02/28/2008 02/28/2008
02/28/2008
02/28/2008
02/28/2008

hearing date. Defined as three (3) FULL court days prior to the hearing, Judge Snyder REQUIRES that the statement be filed no later than MIDNIGHT on the fourth (4th) FULL day (or Monday) prior to the (customary) hearing (on Friday). Any motion(s) will be dropped from the calendar IF the statement is not filed OR timely filed AND courtesy copies of any and all motions, including the 251 stipulation, declarations, and exhibits, properly tabbed, fastened, and identified, exceeding twenty−five (25) pages pursuant to Local Rule 5−133(f), are not delivered directly to chambers by 8:30 a.m. on the third (3rd) FULL day (or Tuesday) prior to the (customary) hearing (on Friday). Signed by Judge Sandra M. Snyder on 2/20/08. (Robles, F. (Entered: 02/20/2008)
182 NOTICE of Motion for Summary Adjud, etc. by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
183 MOTION for SUMMARY JUDGMENT part 1 by Will Kempton. Motion Hearing set for 2/3/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 02/28/2008)
184 MOTION for SUMMARY JUDGMENT part 2 by Will Kempton. Motion Hearing set for 3/31/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 02/28/2008)
185 MOTION for SUMMARY JUDGMENT part 3 by Will Kempton. Motion Hearing set for 3/31/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 02/28/2008)
186 EXHIBIT 1 re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
187 EXHIBIT 2, part a re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
188 EXHIBIT 2, part b. (Bassi, Navtej) (Entered: 02/28/2008)
189 EXHIBIT 3 and 4 re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
190 EXHIBIT 5 re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
191 EXHIBIT 6. (Bassi, Navtej) (Entered: 02/28/2008)
192 EXHIBIT 7 re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
193 EXHIBIT 8−10 re 184 MOTION for SUMMARY JUDGMENT part 2 filed by Will Kempton, 185 MOTION for SUMMARY JUDGMENT part 3 filed by Will Kempton, 183 MOTION for SUMMARY JUDGMENT part 1 filed by Will Kempton. (Bassi, Navtej) (Entered: 02/28/2008)
194 STATEMENT of Undisputed Facts in Support of Motion for Summary Adj. by Defendant Will Kempton re 184 MOTION for SUMMARY JUDGMENT part 2, 185 MOTION for SUMMARY JUDGMENT part 3, 183 MOTION for SUMMARY JUDGMENT part 1. (Bassi, Navtej) (Entered: 02/28/2008)
195 DECLARATION of David P. Harris in Support of re 184 MOTION for SUMMARY JUDGMENT part 2, 185 MOTION for SUMMARY JUDGMENT part 3, 183 MOTION for SUMMARY JUDGMENT part 1. (Bassi, Navtej) (Entered: 02/28/2008)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 16 of 25

02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008
02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008

196 PROPOSED ORDER re 184 MOTION for SUMMARY JUDGMENT part 2, 185 MOTION for SUMMARY JUDGMENT part 3, 183 MOTION for SUMMARY JUDGMENT part 1. (Bassi, Navtej) (Entered: 02/28/2008)
197 CERTIFICATE of SERVICE by Will Kempton re 184 MOTION for SUMMARY JUDGMENT part 2, 185 MOTION for SUMMARY JUDGMENT part 3, 183 MOTION for SUMMARY JUDGMENT part 1. (Bassi, Navtej) (Entered: 02/28/2008)
198 NOTICE of Motion for Summ. Adj. by James Province, Daryl Glenn. (Bassi, Navtej) (Entered: 02/28/2008)
199 MOTION for SUMMARY JUDGMENT by James Province, Daryl Glenn. Motion Hearing set for 3/31/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 02/28/2008)
200 STATEMENT of Undisputed Facts by Defendants James Province, Daryl Glenn re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
201 DECLARATION of Daryl Glenn in Support of re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
202 DECLARATION of James Province in Support of re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
203 DECLARATION of David P. Harris in Support of re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
204 PROPOSED ORDER Proposed Order re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
205 CERTIFICATE of SERVICE by James Province, Daryl Glenn re 199 MOTION for SUMMARY JUDGMENT. (Bassi, Navtej) (Entered: 02/28/2008)
206 NOTICE AMENDED NOTICE CORRECTING HEARING TIME TO REFLECT THE CORRECT TIME −− 10:00 A.M. by Will Kempton re 184 MOTION for SUMMARY JUDGMENT part 2, 185 MOTION for SUMMARY JUDGMENT part 3, 183 MOTION for SUMMARY JUDGMENT part 1, 182 Notice − Other − ATY. (Bassi, Navtej) (Entered: 02/28/2008)
207 CERTIFICATE of SERVICE by Will Kempton. AMENDED NOTICE OF MOTION (Bassi, Navtej) (Entered: 02/28/2008)
208 NOTICE AMENDED NOTICE OF MOTION TO REFLECT CORRECT HEARING TIME −− 10:00 A.M. by James Province, Daryl Glenn re 198 Notice − Other − ATY. (Bassi, Navtej) (Entered: 02/28/2008)
209 CERTIFICATE of SERVICE by James Province, Daryl Glenn. AMENDED NOTICE OF MOTION (Bassi, Navtej) (Entered: 02/28/2008)
210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY by Pamela Kincaid. Motion Hearing set for 3/31/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Alexander, Paul) (Entered: 02/28/2008)
211 MEMORANDUM/RESPONSE in SUPPORT re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Alexander, Paul) (Entered: 02/28/2008)
212 NOTICE by Pamela Kincaid re 211 Memorandum/Response in Support of Motion, 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Alexander, Paul) (Entered: 02/28/2008)
213 PROPOSED ORDER Proposed Order re 211 Memorandum/Response in Support of Motion, 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY, 212 Notice − Other − ATY by Pamela Kincaid. (Alexander, Paul) (Entered: 02/28/2008)
214 STATEMENT of UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY by Plaintiff Pamela Kincaid re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY, 212 Notice − Other − ATY, 213 Proposed Order, 211 Memorandum/Response in Support of Motion. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 17 of 25

02/28/2008
02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 03/11/2008
03/11/2008
03/13/2008 03/13/2008 03/19/2008

Exhibit 8, # 9 Exhibit 9−12, # 10 Exhibit 13A, # 11 Exhibit 13B)(Alexander, Paul) (Entered: 02/28/2008)
215 EXHIBIT 14A−19 ISO STATEMENT OF UNDISPUTED MATERIAL FACTS. (Attachments: # 1 Exhibit 14B, # 2 Exhibit 14C, # 3 Exhibit 14D, # 4 Exhibit 15, # 5 Exhibit 16A, # 6 Exhibit 16B, # 7 Exhibit 17−19)(Alexander, Paul) (Entered: 02/28/2008)
216 EXHIBIT 20A−35 by Randy Johnson. (Attachments: # 1 Exhibit 20B, # 2 Exhibit 20C, # 3 Exhibit 20D, # 4 Exhibit 21−35)(Alexander, Paul) (Entered: 02/29/2008)
217 EXHIBIT 36−52. (Attachments: # 1 Exhibit 43, # 2 Exhibit 44−46, # 3 Exhibit 47A, # 4 Exhibit 47B, # 5 Exhibit 48−52)(Alexander, Paul) (Entered: 02/29/2008)
218 EXHIBIT 53 by Doug Deatherage. (Attachments: # 1 Exhibit 53B, # 2 Exhibit 53C, # 3 Exhibit 53D, # 4 Exhibit 53E, # 5 Exhibit 53F)(Alexander, Paul) (Entered: 02/29/2008)
219 EXHIBIT 54−56B ISO Statement of Material Facts. (Attachments: # 1 Exhibit 56A, # 2 Exhibit 56B)(Alexander, Paul) (Entered: 02/29/2008)
220 EXHIBIT 57A−D. (Attachments: # 1 Exhibit 57B, # 2 Exhibit 57C, # 3 Exhibit 57D)(Alexander, Paul) (Entered: 02/29/2008)
221 EXHIBIT 58A. (Attachments: # 1 Exhibit 58B, # 2 58C, # 3 Exhibits 59−63)(Alexander, Paul) (Entered: 02/29/2008)
222 EXHIBIT Exhibit 64A. (Attachments: # 1 Exhibit 64B, # 2 Exhibit 64C, # 3 Exhibit 64D, # 4 Exhibit 64E, # 5 Exhibits 65−67)(Alexander, Paul) (Entered: 02/29/2008)
223 EXHIBIT 68A. (Attachments: # 1 Exhibit 68B, # 2 Exhibit 68C, # 3 Exhibit 68D, # 4 Exhibit 68E, # 5 Exhibit 68F, # 6 Exhibit 68G)(Alexander, Paul) (Entered: 02/29/2008)
224 EXHIBIT 69A. (Attachments: # 1 Exhibit 69B, # 2 Exhibits 70−76, # 3 Exhibit 77, # 4 Exhibit 78, # 5 Exhibit 79A, # 6 Exhibit 79B, # 7 Exhibit 79C, # 8 Exhibits 80−96)(Alexander, Paul) (Entered: 02/29/2008)
225 EXHIBIT 97A. (Attachments: # 1 Exhibit 97B, # 2 Exhibits 98−107, # 3 Exhibits 108−109)(Alexander, Paul) (Entered: 02/29/2008)
226 EXHIBIT 110A. (Attachments: # 1 Exhibit 110B, # 2 Exhibit 110C, # 3 Exhibits 111−116, # 4 Exhibit 117, # 5 Exhibit 118, # 6 Exhibit 119, # 7 Exhibit 120, # 8 Exhibit 122, # 9 Exhibit 122)(Alexander, Paul) (Entered: 02/29/2008)
227 EXHIBIT Corrected Exhibit 118. (Alexander, Paul) (Entered: 02/29/2008)
228 MINUTE ORDER: ***TEXT ONLY ENTRY*** Due to the press of business, the Hearing re motions for summary judgment currently set for 3/31/2008 has been continued to 4/21/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 03/11/2008)
229 STATEMENT of Jt. Statement of the Parties with Regard to the Motion of Defendants Kempton et al. to Exclude Plaintiffs' Expert, etc. by Defendant Will Kempton re 173 MOTION to COMPEL Notice of Motion to Exclude Plaintiffs' Expert Testimony, etc.. (Attachments: # 1 Exhibit Jt. Statement, Exh. A, part 1, # 2 Exhibit Jt. Statement, Exh. A, part 2, # 3 Exhibit Jt. Statement, Exh. A, part 3)(Bassi, Navtej) (Entered: 03/11/2008)
230 SUPPLEMENT by John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno re 229 Statement − R,. (Betts, James) (Entered: 03/13/2008)
231 SUPPLEMENT by John Rogers, Phillip Weathers, Alan Autry, Greg Garner, Reynaud Wallace, City Of Fresno re 229 Statement − R,. (amended POS) (Betts, James) (Entered: 03/13/2008)
232 MINUTE ORDER (Text Only Entry): Defendants' Motion to Exclude Plaintiffs' Expert Testimony and Other Evidence, Etc. 173 , set for hearing on 3/21/08 @ 9:30am

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 18 of 25

03/19/2008 03/19/2008 04/04/2008
04/04/2008 04/04/2008 04/04/2008
04/04/2008
04/04/2008 04/07/2008 04/07/2008
04/07/2008
04/07/2008 04/07/2008 04/07/2008

before Judge Snyder (SMS), is VACATED. Pursuant to Local Rule 78−230(h), the Court hereby takes the motion under submission. MOTION 173 SUBMITTED. Signed by Judge Sandra M. Snyder on 3/19/08. (Robles, F.) (Entered: 03/19/2008)
233 ORDER Re: Defendants Will Kempton, James Province, and Daryl Glenns' Motion to Exclude Plaintiffs' Expert Testimony and Other Evidence, or, in the Alternative to Compel Production of Experts' Reports and for Monetary Sanctions [Doc. 173], signed by Judge Sandra M. Snyder on 3/19/2008. (Herman, H) (Entered: 03/19/2008)
SERVICE BY MAIL: 233 Order on Motion to Compel, served on David Paul Harris (Herman, H) (Entered: 03/19/2008)
234 MEMORANDUM/RESPONSE in OPPOSITION. to P"s MSJ as to Liability (Attachments: # 1 Statement D's Response to P's Sep. Statement, # 2 Affidavit Affidavit of Daryl Glenn in Opp. to P's MSJ, # 3 Affidavit Affid. of Province in Opp. to P's MSJ, # 4 Exhibit Exxhibit A to D's Resp. to P's SSUF)(Bassi, Navtej) (Entered: 04/04/2008)
235 MEMORANDUM/RESPONSE in OPPOSITION. to Kempton, Province and Glenn's Motion for Summary Judgment (Alexander, Paul) (Entered: 04/04/2008)
236 OBJECTIONS by Plaintiff Pamela Kincaid. to Evidence Submitted in Support of the Caltrans Defendants' Motions for Summary Judgment (Alexander, Paul) (Entered: 04/04/2008)
237 DECLARATION of Melyssa Minamoto in SUPPORT OF. Plaintiffs' Opposition to Defendants Kempton, Province and Glenn's Motion for Summary Adjudication (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 15, # 14 Exhibit 16, # 15 Exhibit 17, # 16 Exhibit 18, # 17 Exhibit 19, # 18 Exhibit 20, # 19 Exhibit 21, # 20 Exhibit 22, # 21 Exhibit 23, # 22 Exhibit 24, # 23 Exhibit 25, # 24 Exhibit 26, # 25 Exhibit 27, # 26 Exhibit 28, # 27 Exhibit 29, # 28 Exhibit 30, # 29 Exhibit 13, # 30 Exhibit 31, # 31 Exhibit 14)(Alexander, Paul) (Entered: 04/04/2008)
238 DECLARATION of Mike Rhodes in SUPPORT OF. Plaintiffs' Opposition to Defendants Kempton, Province and Glenn's Motion for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Alexander, Paul) (Entered: 04/04/2008)
239 DECLARATION of Bruce Tracy in SUPPORT OF. Plaintiffs' Opposition to Defendants Kempton, Province and Glenn's Motion for Summary Judgment (Attachments: # 1 Exhibit A)(Alexander, Paul) (Entered: 04/04/2008)
240 MEMORANDUM/RESPONSE in OPPOSITION re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
241 STATEMENT of Response to Plaintiffs' Separate Statement of Undisputed Facts and Statement of Disputed Facts by Defendants John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno re 214 Statement − R,, 240 Memorandum/Response in Opposition to Motion. (Betts, James) (Entered: 04/07/2008)
242 STATEMENT of Additional Disputed Facts in Opopsition to Plaintiffs' Motion for Summary Judgment by Defendants John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno re 240 Memorandum/Response in Opposition to Motion, 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
243 DECLARATION of James Connell in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
244 DECLARATION of Greg Garner in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
245 DECLARATION of John Rogers in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 19 of 25

04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/07/2008
04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/08/2008
04/11/2008
04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008

246 DECLARATION of Andy Souza in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
247 DECLARATION of Kerry Trost in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
248 DECLARATION of Reynaud Wallace in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
249 DECLARATION of Phillip Weathers in Opposition to re 210 MOTION for SUMMARY JUDGMENT AS TO LIABILITY. (Betts, James) (Entered: 04/07/2008)
250 MOTION for PRELIMINARY INJUNCTION Removal Thereof by John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno. Motion Hearing set for 5/9/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Betts, James) (Entered: 04/07/2008)
251 MEMORANDUM/RESPONSE in SUPPORT re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
252 DECLARATION of Andy Souza in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
253 DECLARATION of Reynaud Wallace in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
254 DECLARATION of John Rogers in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
255 DECLARATION of James Connell in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
256 DECLARATION of Phillip Weathers in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
257 DECLARATION of Greg Garner in Support of re 250 MOTION for PRELIMINARY INJUNCTION Removal Thereof. (Betts, James) (Entered: 04/07/2008)
258 MINUTE ORDER: (TEXT ENTRY ONLY) As Judge Wanger hears civil motions on Mondays at 10:00, the Motion for Preliminary Injunction 250 currently set for 5/9/2008 is re−set to 6/9/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Kusamura, W) (Entered: 04/08/2008)
259 REPLY/RESPONSE to CALTRANS DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO ALL CAUSES OF ACTION by Pamela Kincaid re 235 Memorandum/Response in Opposition to Motion, 238 , 237 , 239 , 236 Objections. (Alexander, Paul) (Entered: 04/11/2008)
260 REPLY to RESPONSE to MOTION. for Summary Judgment (Kempton) (Attachments: # 1 Exhibit Reply to Plaintiffs' Evidentiary Objections)(Bassi, Navtej) (Entered: 04/14/2008)
261 REPLY to RESPONSE to MOTION re 199 MOTION for SUMMARY JUDGMENT. (Province/Glenn) (Attachments: # 1 Exhibit Reply to Plaintiffs' Evidentiary Objections)(Bassi, Navtej) (Entered: 04/14/2008)
262 REPLY to RESPONSE to MOTION. for Summary Judgment. PLAINTIFFS' REPLY TO CITY DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 Exhibit 1)(Alexander, Paul) (Entered: 04/14/2008)
263 REPLY/RESPONSE to CITY DEFENDANTS' RESPONSES TO PLAINTIFFS' SEPARATE STATEMENT OF UNDISPUTED FACTS by Pamela Kincaid re 262 Reply to Response to Motion. (Alexander, Paul) (Entered: 04/14/2008)
264 REPLY/RESPONSE to CITY DEFENDANTS' STATEMENT OF ADDITIONAL DISPUTED FACTS IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 20 of 25

04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/15/2008 04/16/2008
04/16/2008 04/17/2008 04/17/2008 04/25/2008
05/02/2008 05/02/2008 05/02/2008

JUDGMENT by Pamela Kincaid re 263 Reply/Response, 262 Reply to Response to Motion. (Alexander, Paul) (Entered: 04/14/2008)
265 REPLY to RESPONSE to MOTION. PLAINTIFFS REPLY TO CALTRANS DEFENDANTS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT (Alexander, Paul) (Entered: 04/14/2008)
266 REPLY/RESPONSE to CALTRANS DEFENDANTS' RESPONSE TO PLAINTIFFS' SEPARATE STATEMENT OF UNDISPUTED FACTS by Pamela Kincaid re 265 Reply to Response to Motion. (Alexander, Paul) (Entered: 04/14/2008)
267 EXHIBIT Corrected Exhibit 6 to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
268 EXHIBIT Corrected Exhibit 7 to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
269 EXHIBIT Corrected Exhibit 9 to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
270 EXHIBIT Corrected Exhibit 53A to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
271 EXHIBIT Corrected Exhibit 82 to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
272 EXHIBIT Corrected Exhibit 88 to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment as to Liability by Pamela Kincaid. (Alexander, Paul) (Entered: 04/14/2008)
273 OBJECTIONS by Defendants John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno to 183 MOTION for SUMMARY JUDGMENT part 1. Evidentiary Objections (Betts, James) (Entered: 04/15/2008)
274 MINUTE ORDER: ***TEXT ONLY ENTRY*** Due to the press of business, the Hearing re Motions for Summary Judgment currently set for 4/21/2008 has been continued to 4/24/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 04/16/2008)
SERVICE BY MAIL: 274 Minute Order served on David Paul Harris. (Timken, A) (Entered: 04/16/2008)
275 MINUTE ORDER: ***TEXT ONLY ENTRY*** The motions for summary currently set for 4/24/2008 have been re−set to 4/25/2008 at 02:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 04/17/2008)
SERVICE BY MAIL: 275 Minute Order served on David Paul Harris (Timken, A) (Entered: 04/17/2008)
276 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: MOTION HEARING held on 4/25/2008 ; Motions were argued and all were submitted 183 199 & 210 Motions for Summary Judgment. Plaintiffs Counsel P. Alexander, P. Risher, present. Defendants Counsel D. Harris, J. Rubin present. Court Reporter/CD Number: K. Lopez. (Kusamura, W) (Entered: 04/28/2008)
277 NOTICE PLAINTIFF CLASS CHART SUMMARIZING SPECIFIC DATES AND LOCATIONS OF SWEEPS BY CITY OF FRESNO AND CITY OF FRESNO DEFENDANTS by Pamela Kincaid. (Alexander, Paul) (Entered: 05/02/2008)
278 NOTICE Transmittal Letter to Judge Oliver W. Wanger by Randy Johnson re 277 Notice − Other − ATY. (Alexander, Paul) (Entered: 05/02/2008)
279 STIPULATION and PROPOSED ORDER AMENDING MARCH 6, 2007 SCHEDULING ORDER by Pamela Kincaid. (Alexander, Paul) (Entered: 05/02/2008)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 21 of 25

05/02/2008
05/05/2008 05/08/2008 05/08/2008 05/09/2008
05/09/2008 05/12/2008
05/12/2008
05/12/2008 05/16/2008
05/18/2008 05/19/2008
05/20/2008 05/20/2008 05/20/2008 05/20/2008 05/20/2008

280 STIPULATION and ORDER amending scheduling order. The Pretrial Conference currently set for 5/5/2008 is continued to 5/19/2008 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Order signed by Judge Oliver W. Wanger on 5/2/2008. (Timken, A) (Entered: 05/02/2008)
282 TRANSCRIPT of Proceedings Motions for Summary Judgment held on Friday, April 25, 2008, before Judge Oliver W. Wanger, filed by Court Reporter Karen Lopez. (TEXT ENTRY ONLY) (Martin, S) (Entered: 05/08/2008)
281 MINUTE ORDER: ***TEXT ONLY ENTRY*** Order 280 amending the scheduling order incorrectly stated the filing date for the pretrial statement. The pretrial statement is due by 5/16/2008. (Timken, A) (Entered: 05/08/2008)
SERVICE BY MAIL: 281 Minute Order served on David Paul Harris (Timken, A) (Entered: 05/08/2008)
283 MINUTE ORDER (TEXT Only): Settlement Conference set for 5/20/2008 at 09:30 AM in Courtroom 7 (SMS) before Judge Sandra M. Snyder. Confidential Settlement Conference Statement is MANDATORY, and must be submitted to Judge Snyders chambers, at least five (5) court days prior to the Settlement Conference. (Herman, H) (Entered: 05/09/2008)
SERVICE BY MAIL: 283 Minute Order setting a Settlement Conference Hearing on 5/20/08 at 9:30a.m. before Judge Snyder, served on David Paul Harris (Herman, H) (Entered: 05/09/2008)
284 MEMORANDUM, DECISION and ORDER, granting in part and denying in part Caltrans Defendants' motions for summary judgment 183 and 199 , and plaintiff's motion for summary judgment against Caltrans defendants 212 signed by Judge Oliver W. Wanger on 5/12/2008. (Timken, A) (Entered: 05/12/2008)
285 MEMORANDUM, DECISION and ORDER, granting in part and denying in part plaintiffs' motion for summary judgment 212 and 210 as to liability against the city defendants signed by Judge Oliver W. Wanger on 5/12/2008. (Timken, A) (Entered: 05/12/2008)
SERVICE BY MAIL: 284 Memorandum, Opinion & Order served on David Paul Harris (Timken, A) (Entered: 05/12/2008)
286 JOINT PRETRIAL STATEMENT by Plaintiff Pamela Kincaid, Defendants City Of Fresno, California Department of Transportation. Attorney Alexander, Paul added. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Alexander, Paul) (Entered: 05/16/2008)
287 PROPOSED ORDER by Pamela Kincaid. (Alexander, Paul) (Entered: 05/18/2008)
290 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: PRETRIAL CONFERENCE held on 5/19/2008, Motion's in Limine Hearing set for 6/5/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Plaintiffs Counsel P. Alexander present. Defendants Counsel D. Harris for Cal Trans and J. Betts for The City of Fresno present. Court Reporter/CD Number: ECRO. (Kusamura, W) (Entered: 05/20/2008)
288 OBJECTIONS by Defendants John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno to 287 Proposed Order. (Betts, James) (Entered: 05/20/2008)
289 PROPOSED ORDER by John Rogers, Phillip Weathers, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, City Of Fresno. (Betts, James) (Entered: 05/20/2008)
291 ORDER GRANTING IN PART AND DENYING IN PART Plaintiffs' Motion for Summary Judgment as to Liability against the City Defendants, signed by Judge Oliver W. Wanger on 05/19/2088. (Kusamura, W) (Entered: 05/20/2008)
SERVICE BY MAIL: 291 Order served on David Paul Harris (Kusamura, W) (Entered: 05/20/2008)
292 RESERVICE OF DOCUMENTS: addressed to all parties (Kusamura, W) (Entered: 05/20/2008)

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 22 of 25

05/20/2008 05/20/2008
05/21/2008
05/22/2008 05/23/2008 05/27/2008 05/27/2008 05/30/2008 06/04/2008 06/04/2008 06/05/2008

293 ORDER DENYING Defendant Will Kempton's Motion for Summary Judgment; DENYING Plaintffs' Motion for Summary Judgment as to Defendants James Provice and Daryl Glenn; and GRANTING Defendants James Province and Daryl Glenn's Motion for Summary Judgment as to the State Law Claims for Damages asserted against them as DENYING the Motion on all other grounds, signed by Judge Oliver W. Wanger on 05/19/2008. (Kusamura, W) (Entered: 05/20/2008)
294 MINUTES (Text Only) for proceedings held before Judge Sandra M. Snyder on 5/20/2008: All−day SETTLEMENT CONFERENCE held − Case provisionally settled, subject to Fresno City Council approval. Plaintiffs' counsel to prepare detailed settlement agreement to City Attorney's office for approval as to form and for official submission to The City Council. Judge Snyder to meet and confer with Judge Wanger re: pre−trial filing deadlines and the trial date itself. Note: The Court hereby orders the proposed settlement conditions set forth on the record in open court to be and remain sealed until The Honorable Oliver Wanger approves the settlement for all purposes. Plaintiffs Counsel Paul Alexander, Melyssa Minamoto, Oren M. Seelstrom, Eric Lloyd, Michael T. Risher, Elisa Della−Piana present. Defendants Counsel James B. Betts, Francine M. Kanne, David P. Harris present. Court Reporter/CD Number: ECRO − Sealed. (Herman, H) (Entered: 05/21/2008)
296 MINUTES (Text Only) for proceedings held before Judge Sandra M. Snyder on 5/21/2008: TELEPHONIC CONFERENCE held with Attny Paul Alexander for Plaintiffs, Attnys James Betts and Francine Kanne for Defendants The City of Fresno, et. al., and Attny David Harris for Defendant Cal Trans re: Judge Wanger's desire to maintain the trial date as set, June 10, 2008; counsel to meet and confer re: revising briefing deadlines and hearing dates pursuant to the Pretrial Order, allowing for extensions due to pending approval of the settlement proposal by both The City of Fresno and the Honorable Oliver Wanger. Counsel cautioned by this Court to admonish all attorneys and their agents and representatives as well as all parties that the pending settlement is NOT to be discussed with the press until The Honorable Oliver Wanger approves said settlement. Court Reporter/CD Number: in chambers, off record. (Herman, H) (Entered: 05/23/2008)
295 FINAL PRETRIAL ORDER, signed by Judge Oliver W. Wanger on 05/20/2008. (Jury Trial set for 6/10/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger and Motion In Limine Hearing set for 6/6/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger) (Martin, S) (Entered: 05/22/2008)
297 STIPULATION and ORDER Modification to Pretrial Conference Order: Motions−in−Limine Hearing is set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. signed by Judge Oliver W. Wanger on 5/22/2008. (Herman, H) (Entered: 05/23/2008)
298 Disclosure from court trial by Judge Oliver W. Wanger. (Esteves, C) (Entered: 05/28/2008)
299 LETTER from Paul Alexander. (Esteves, C) (Entered: 05/28/2008)
300 MINUTE ORDER: ***TEXT ONLY ENTRY*** A Status Conference in this matter has been set for 6/6/2008 at 10:15 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 05/30/2008)
301 NOTICE OF MOTION FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF NOTICE TO CLASS by all plaintiffs. (Attachments: # 1 Memorandum IN SUPPORT OF PRELIMINARY APPROVAL OF SETTLEMENT, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Proposed Order PROPOSED ORDER, # 8 Certificate PROOF OF SERVICE)(Alexander, Paul) (Entered: 06/04/2008)
302 NOTICE PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF NOTICE TO CLASS by all plaintiffs re 301 Notice − Other − ATY,. (Alexander, Paul) (Entered: 06/04/2008)
303 MOTION PLAINTIFFS NOTICE OF MOTION FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF NOTICE TO CLASS by Pamela Kincaid. Motion Hearing set for 6/6/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge

Case: 1:06-cv-1445 As of: 02/16/2015 07:16 AM PST 23 of 25

06/05/2008
06/05/2008 06/05/2008 06/05/2008 06/05/2008 06/05/2008 06/05/2008 06/05/2008 06/06/2008
06/09/2008 06/09/2008 06/09/2008 06/10/2008

Oliver W. Wanger. (Alexander, Paul) (Entered: 06/05/2008)
304 MEMORANDUM/RESPONSE in SUPPORT re 303 MOTION PLAINTIFFS NOTICE OF MOTION FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF NOTICE TO CLASS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order Proposed Order, # 7 Certificate Trostad POS)(Alexander, Paul) (Entered: 06/05/2008)
305 MOTION IN LIMINE #1 re Daryl Glenn by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 06/05/2008)
306 MOTION IN LIMINE #2 −− Prohibit M. Rhodes, etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Exhibit Exhibit A to MIL#2, # 2 Exhibit Exh. B to MIL#2)(Bassi, Navtej) (Entered: 06/05/2008)
307 MOTION IN LIMINE #3 −− Exclude Apper as Expert, etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Exhibit Exh. A to MIL#3)(Bassi, Navtej) (Entered: 06/05/2008)
308 MOTION IN LIMINE #4 Re use of "Sweeps" or "Clean−ups", etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 06/05/2008)
309 MOTION IN LIMINE #5 re Bifurcation, etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 06/05/2008)
310 MOTION IN LIMINE #6 re Use of Term "Caltrans", etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 06/05/2008)
311 MOTION IN LIMINE #7 re Activities Outside Time Frame of Lawsuit, etc. by Will Kempton, James Province, Daryl Glenn. Motion Hearing set for 6/9/2008 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Bassi, Navtej) (Entered: 06/05/2008)
312 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: STATUS CONFERENCE re Settlement held on 6/6/2008. The Court finds the proposed settlement reasonable and fair. Preliminary settlement granted. A hearing re approval of final settlement is set for 7/25/2008 at 03:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Counsel to prepare order. As a result of the preliminary settlement, all matters currently set for hearing on 6/9/2008, and the trial currently set for 6/10/2008 are vacated. Plaintiffs Counsel P. Alexander, M. Risher.Defendants Counsel J. Betts, D. Harris present. Court Reporter/CD Number: ECRO. (Timken, A) (Entered: 06/06/2008)
313 ORDER TO SHOW CAUSE why all proceedings regarding settlement should not be terminated and for personal appearance of individual defendant Alan Autry. Show Cause Hearing set for 6/10/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, signed by Judge Oliver W. Wanger on 6/9/2008. (Lucas, G) (Entered: 06/09/2008)
314 RETURN of SERVICE (Executed) of Order To Show Cause Why All Proceedings Regarding Settlement Should Not Be Terminated And For Personal Appearance Of Individual Defendant Alan Autry 313 . (Scrivner, E) (Entered: 06/09/2008)
315 RESPONSE to ORDER to SHOW CAUSE by Will Kempton, James Province, Daryl Glenn. (Bassi, Navtej) (Entered: 06/09/2008)
316 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: SHOW CAUSE HEARING held on 6/10/2008. Plaintiffs give statement re settlement. City of Fresno defendants give statement re settlement. Cal Trans defendant submits on filed response. Mayor Autry responds against the advice of counsel. The Court polls each

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individual named defendant re agreement with settlement. They each agree. The Court finds cause has been shown for settlement to proceed on the terms and conditions presented in open court on 6/6/2008. Plaintiffs Counsel P. Alexander, M. Risher, O. Sellstrom present. Defendants Counsel J. Betts, J. Rubin, D. Harris, J. Sanchez, F. Kanne, M. George present. Court Reporter/CD Number: P. Crawford. (Timken, A) (Entered: 06/10/2008)
317 PROPOSED ORDER by Pamela Kincaid. (Attachments: # 1 Exhibit A Proposed Notice, # 2 Exhibit Ex B Kincaid Claim Form)(Alexander, Paul) (Entered: 06/13/2008)
318 CERTIFICATE of SERVICE by Pamela Kincaid re 317 Proposed Order. (Alexander, Paul) (Entered: 06/13/2008)
319 ORDER Preliminarily Approving Settlement Agreements, Settlement Plan, Notice and Notice Procedure signed by Judge Oliver W. Wanger on 6/13/2008. Hearing set for 7/25/2008 at 3:00 p.m. in Courtroom 3. (Esteves, C) (Entered: 06/18/2008)
320 TRANSCRIPT of Proceedings held on 6/6/08, before Judge Oliver W. Wanger, filed by ECRO Michelle Rooney, Phone number 559−499−5928 E−mail mrooney@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 7/9/2008. Redacted Transcript Deadline set for 7/21/2008. Release of Transcript Restriction set for 9/16/2008. (Rooney, M) (Entered: 06/18/2008)
321 NOTICE of Motion for Order Granting Final Approval of Class Action Settlement by all plaintiffs. (Attachments: # 1 Memorandum In Support of Motion for Final Approval, # 2 Exhibit A (Memo), # 3 Exhibit B (Memo), # 4 Exhibit C (Memo), # 5 Exhibit D (Memo), # 6 Exhibit E (Memo), # 7 Declaration of Paul Alexander, # 8 Exhibit A (Alexander Dec.), # 9 Exhibit B (Alexander Dec.), # 10 Declaration of Alan Schlosser, # 11 Declaration of Oren Sellstrom, # 12 Declaration of Melyssa Minamoto, # 13 Declaration of Eric Trostad, # 14 Exhibit A (Trostad Dec.), # 15 Proposed Order, # 16 Certificate Proof Of Service)(Alexander, Paul) (Entered: 07/18/2008)
322 SUPPLEMENT by Pamela Kincaid re 321 Notice − Other − ATY,,. SUPPLEMENTAL DOCUMENTATION REGARDING FEES OF ACLU OF NORTHERN CALIFORNIA AND LAWYERS COMMITTEE FOR CIVIL RIGHTS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Certificate of Service)(Alexander, Paul) (Entered: 07/23/2008)
323 ORDER approving final settlement signed by Judge Oliver W. Wanger on 7/25/2008. (Timken, A) (Entered: 07/25/2008)
324 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: HEARING re Final Settlement held on 7/25/2008. The Court finds the settle is fair and reasonable and therefore grants the settlement. Counsel to submit judgment. Plaintiffs Counsel P. Alexander, M. Risher, O. Sellstrom, E. Della−Piana present. Defendants Counsel J. Betts, D. Harris, F. Kanne present. Court Reporter/CD Number: K. Lopez. (Timken, A) (Entered: 07/25/2008)
325 PROPOSED ORDER by Pamela Kincaid. (Attachments: # 1 Exhibit 7/25/2008 Final Order Approving Settlement, # 2 Certificate of Service)(Alexander, Paul) (Entered: 07/29/2008)
326 CLERK'S JUDGMENT pursuant to order signed by Judge Oliver W. Wanger on 7/29/08. CASE CLOSED.(Verduzco, M) (Entered: 07/29/2008)
327 CLERK'S NOTICE of DOCKET CORRECTION: Please Disregard 326 Clerk's Judgment; Entered in Error. (Verduzco, M) (Entered: 07/29/2008)
328 JUDGMENT signed by Judge Oliver W. Wanger on 7/29/08, entered pursuant to Order 323 . CASE CLOSED. (Verduzco, M) (Entered: 07/29/2008)
329 TRANSCRIPT of Proceedings held on 7−25−08, before Judge Oliver W. Wanger, filed by Court Reporter Karen Lopez, Phone number 559−264−0584 E−mail kllopez@pacbell.net. Transcript of Hearing re Final Settlement may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for

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Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/19/2008. Redacted Transcript Deadline set for 9/29/2008. Release of Transcript Restriction set for 12/1/2008. (Lopez, K) (Entered: 08/29/2008)
330 STATUS REPORT by Pamela Kincaid. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate Certificate of Service)(Alexander, Paul) (Entered: 11/21/2008)
331 STATUS REPORT by Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy Johnson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Alexander, Paul) (Entered: 05/21/2009)
332 CERTIFICATE of SERVICE by Pamela Kincaid re 331 Status Report. (Alexander, Paul) (Entered: 05/21/2009)
333 STATUS REPORT by Pamela Kincaid, Doug Deatherage, Charlene Clay, Cynthia Greene, Joanna Garcia, Randy Johnson. (Alexander, Paul) (Entered: 12/02/2009)
334 STATUS REPORT by Charlene Clay, Doug Deatherage, Joanna Garcia, Cynthia Greene, Randy Johnson, Pamela Kincaid. (Alexander, Paul) (Entered: 07/21/2010)
335 STATUS REPORT by Charlene Clay, Doug Deatherage, Joanna Garcia, Cynthia Greene, Randy Johnson, Pamela Kincaid. (Alexander, Paul) (Entered: 05/05/2011)
336 STATUS REPORT by Pamela Kincaid. (Alexander, Paul) (Entered: 03/08/2012)
337 MINUTE ORDER: (TEXT ENTRY ONLY) This closed case and Sanchez v. City of Fresno, 1:12cv00428 LJO SKO, involve similar questions of fact and law and therefore qualify as related cases under Local Rule. 123(a). To ensure appropriate review of the periodic status reports being filed in this matter, this case shall be directly reassigned to district judge Lawrence J. O'Neill and magistrate judge Sheila K. Oberto signed by District Judge Lawrence J. O'Neill on April 23, 2013. (Munoz, I) (Entered: 04/23/2013)
338 CLERK'S NOTICE. This case is assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Sheila K. Oberto. New Case Number: 1:06−cv−1445−LJO−SKO. (Robles, S) (Entered: 04/23/2013)