city and county of san francisco s opposition to petitioner s motion f

Cal. Super. - 1st Dist.April 20, 2021

1 CITY’S OPP. TO REQUEST FOR TRO - CASE NO. CGC-20-588010 n:\govlit\li2021\210420\01503887.docx 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 26 27 28 DENNIS J. HERRERA, State Bar #139669 City Attorney WAYNE K. SNODGRASS, State Bar #148137 JEREMY M. GOLDMAN, State Bar #218888 TARA M. STEELEY, State Bar #231775 Deputy City Attorneys City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-6762 [Goldman] (415) 554-4655 [Steeley] Facsimile: (415) 554-4699 E-Mail: jeremy.goldman@sfcityatty.org tara.steeley@sfcityatty.org Attorneys for Respondent CITY AND COUNTY OF SAN FRANCISCO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION RAMONA MAYON, Petitioner, vs. CITY AND COUNTY OF SAN FRANCISCO, Respondent. Case No. CGC-20-588010 CITY AND COUNTY OF SAN FRANCISCO’S OPPOSITION TO PETITIONER’S MOTION FOR A TEMPORARY RESTRAINING ORDER Hearing Date: January 6, 2021 Hearing Judge: Hon. Ethan P. Schulman Time: 11:00 a.m. Place: Dept. 302 Action Filed: November 25, 2020 Attachments: --Request for Judicial Notice --Declaration of R. Andrew Cox ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 01/05/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 2 CITY’S OPP. TO REQUEST FOR TRO - CASE NO. CGC-20-588010 n:\govlit\li2021\210420\01503887.docx 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 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES ...........................................................................................................3 INTRODUCTION ...........................................................................................................................5 FACTS .............................................................................................................................................6 ARGUMENT ...................................................................................................................................7 I. PETITIONER FAILS TO SHOW ANY THREAT OF IMMEDIATE AND IRREPARABLE INJURY .......................................................................................8 II. PETITIONER CANNOT ESTABLISH A REASONABLE PROBABILITY THAT SHE WILL PREVAIL ON THE MERITS. .................................................8 III. THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IS NOT IN THE PUBLIC INTEREST. ....................................................................................11 CONCLUSION ..............................................................................................................................11 3 CITY’S OPP. TO REQUEST FOR TRO - CASE NO. CGC-20-588010 n:\govlit\li2021\210420\01503887.docx 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 26 27 28 TABLE OF AUTHORITIES State Cases Allen v. City of Sacramento (2015) 234 Cal.App.4th 41 ..........................................................................................................9 City of Vernon v. Central Basis Municipal Water Dist. (1999) 69 Cal.App.4th 508 ..........................................................................................................7 Cohen v. Board of Supervisors (1985) 40 Cal.3d 277 ...................................................................................................................7 People ex rel. Lynch v. Super. Ct. 1 Cal. 3d 910 (1970) ..................................................................................................................10 People v. Kellogg (2004) 119 Cal.App.4th 593 ......................................................................................................10 Socialist Workers etc. Com. v. Brown (1975) 53 Cal.App.3d 879 ...........................................................................................................7 Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459 ......................................................................................................11 Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 ................................................................................................................10 Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131 .........................................................................................................7 Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559 ....................................................................................................10 Federal Cases Hallstrom v. City of Garden City (9th Cir. 1993) 991 F.2d 1473 .....................................................................................................9 Martin v. City of Boise (9th Cir. 2019) 920 F.3d 584 .......................................................................................................9 Miralle v. City of Oakland (N.D. Cal., Nov. 28, 2018, No. 18-CV-06823-HSG) 2018 WL 6199929 ...................................9 South Dakota v. Opperman (1976) 428 U.S. 364 .....................................................................................................................9 State Statutes & Codes Cal. Code Civ. Proc. § 527(c)(1) .................................................................................................7, 8 San Francisco Statutes, Codes & Ordinances S.F. Trans. Code § 7.2.54.................................................................................................................5 4 CITY’S OPP. TO REQUEST FOR TRO - CASE NO. CGC-20-588010 n:\govlit\li2021\210420\01503887.docx 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 26 27 28 Other References SFMTA, Oversize Vehicle Overnight Parking Restriction Pilot Evaluation and Recommendations, Nov. 2013, available at https://www.sfmta.com/sites/default /files/reports-and-documents/2017/12/ov_pilot_evaluation_fall_2013_0.pdf ............................5 SFMTA, Waivers for people experiencing homelessness or low-income and reduction for first time tow, available at https://www.sfmta.com/getting-around/ drive-park/towed-vehicles/reduced-fees-first-time-tow-and-low-income-individuals (last visited Jan. 5, 2021) ...........................................................................................................10 5 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 Respondent City and County of San Francisco files this opposition to Petitioner’s Application for a Temporary Restraining Order. INTRODUCTION Petitioner seeks a temporary restraining order that would either: (1) prevent the City from towing Petitioner’s illegally parked, non-operational vehicle that has an expired registration; or, (2) order that, if the City does tow the vehicle, that the City must waive all fees and return the vehicle to her. The application should be denied for several reasons. First, Petitioner has not established any threat of immediate and irreparable injury. Petitioner has not shown that she faces any imminent risk that the vehicle will be towed. Petitioner notes that she received a ticket from SFPD for having an expired registration, but she provides no evidence that she faces any imminent risk that SFPD will tow her vehicle. (TRO App. at 3.) Indeed, the SFPD is generally not towing vehicles at this time for having expired registrations. (Cox Dec. ¶¶ 2-3, Ex. A.) Second, there is no legal basis to grant Petitioner the relief she seeks. The City tows vehicles for many reasons, including (but not limited to) when the vehicle is causing a public safety hazard, is blocking a driveway or crosswalk, or is impeding traffic. (Cox Dec. Ex. A.). The relief Petitioner seeks - an order preventing the City from towing her vehicle for any reason - would prevent the City from towing her vehicle even when towing the vehicle is necessary to protect public safety under the community caretaking doctrine. Petitioner is not entitled to that extraordinary relief. Further, by her own admission, Petitioner’s vehicle is not operational, has an expired registration, and is illegally parked on the Great Highway in violation of Section 7.2.54 of the San Francisco Transportation Code.1 Petitioner does not contest any of those legal violations. Instead, she asks that the Court enjoin the City from enforcing the law because she is homeless, wishes to live in the vehicle, and does not 1 Section 7.2.54, entitled “Large Vehicle Parking Restrictions” provides that it is an infraction to “Park a vehicle over twenty-two feet in length or seven feet in height, or camp trailers, fifth-wheel travel trailers, house cars, trailer coaches, mobilehomes, recreational vehicles, or semi-trailers as defined by the California Vehicle Code and Health and Safety Code, between the hours of 12 a.m. and 6 a.m. when Municipal Transportation Agency signs are posted giving notice. This section shall be operative on March 31, 2013.” The portion of the Great Highway at issue is subject to the Large Vehicle Parking Restriction. (See RJN Ex. B, also available at https://www.sfmta.com/sites/default/files/reports-and- documents/2017/12/ov_pilot_evaluation_fall_2013_0.pdf.) 6 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 want to accept the offers of shelter she has received from the City. (TRO App. at 3.) Petitioner does not provide any legal authority for her assertion that the City should be enjoined from enforcing State and local laws merely because Petitioner is homeless and has rejected offers of shelter. Accordingly, Petitioner has not shown that she is entitled to a temporary restraining order. The Application for a TRO should be denied. FACTS The Petition concerns the resolution of an encampment located at Great Highway and Balboa Avenue, which took place on November 18, 2020. A TRO concerning that encampment resolution was previously denied by the Court on December 2, 2020. In this TRO application, Petitioner asks the Court to “restrain the City from depriving her of the RV home that was brought to her on December 23, 2020.” (TRO App. at 2.) Petitioner states that she had to remove her tent because of a “sweep” on December 10, 2020, and slept in her car until December 24, 2020, when her “27’ class c motorhome was towed to another location on Great Highway” by AAA. She states that, although the motorhome is not currently operational and has an “out-of-date” registration sticker, a mobile mechanic is scheduled to come on Wednesday, December 30, 2020. (Ibid.). After that, Petitioner “fully intends to move it immediately to a smog station, etc.,” but she acknowledges that she may not be able to do so because the motorhome is “a 1996 vehicle that has been sitting up in rough conditions.” (Ibid.). She notes that she has received a “hostile reception” from the neighbors who have repeatedly called the police station to request enforcement of the oversized vehicle parking restrictions. (Id. at p. 3). She also states that she received a ticket for having an expired registration. (Ibid.) Although she does not claim that any City official has told her that her motorhome will be towed by the City, she states that, by the time of the hearing on January 6, 2021, she “expects to have suffered the loss of her home or to have moved it under her own power by then.” (TRO App. at 2.) If the vehicle is towed, Petitioner asks “preemptively for the fees to be waived and it to be returned.” (Ibid). She states that she wants to “go to a rural setting within the week if everything works out on this end,” but if not, she wants the Court to “unravel whatever happens” (if anything) to her motorhome. (Id. at p. 3.) 7 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 In a document served on the City’s counsel on January 5, 2021, Petitioner asserts that she has scheduled a mechanic to “begin” work on her vehicle “next Saturday.” (Mayon Dec. at p. 3.) She reports continuing hostility from neighbors, who she accuses of discriminating against her based on her status as a “vehicle-dweller.” (Id. at pp. 2,5.) She states that she plans to return to the Sacramento area (where she lived before the pandemic), but only if she can get $4,520 to repair the RV, pay for an “Elite Package” at “Thousand Trails,” and obtain the services of a driver. (“Mayon RV Rehousing Plan” at pp. 4-5.) ARGUMENT The availability of interim injunctive relief depends on two interrelated factors. First, the applicant must demonstrate a “threat of immediate and irreparable injury” that would justify injunctive relief. (Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.) For a TRO, the showing for required harm is even more pointed than the showing required for a preliminary injunction: The requisite immediate and irreparable injury harm must occur in the time frame that it would take for a hearing on a noticed motion. The statute requires a showing “that great or irreparable injury will result to the applicant before the matter can be heard on notice.” (C.C.P., § 527(c)(1).) Second, an applicant may not obtain interim injunctive relief unless it establishes a reasonable probability that it ultimately will prevail on the merits. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) Even if the applicant satisfies its threshold burden of establishing immediate and irreparable injury, a court must balance that injury against the injury the defendant and the public would suffer if injunctive relief were issued. (Socialist Workers etc. Com. v. Brown (1975) 53 Cal.App.3d 879, 888- 889.) And where an applicant seeks to enjoin action by government, the applicant faces an even greater burden to demonstrate that its claim of harm outweighs the harm to the public interest. “[W]here governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.” (City of Vernon v. Central Basis Municipal Water Dist. (1999) 69 Cal.App.4th 508, 517.) 8 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 Petitioner cannot satisfy any of the standards that would entitle her to the extraordinary remedy she seeks. I. PETITIONER FAILS TO SHOW ANY THREAT OF IMMEDIATE AND IRREPARABLE INJURY Petitioner has not alleged, let alone established, that she would suffer any immediate and irreparable harm if the Court does not issue the requested TRO, as required by Section 527(c)(1) of the Civil Procedure Code. Petitioner does not allege any facts to show that she faces any immediate risk that her vehicle will be towed by SFPD. Petitioner notes that an SFPD officer gave her a ticket for having an expired registration, but SFPD is not currently towing vehicles for that reason unless there are exigent circumstances. (Cox Dec. ¶¶ 2-3, Ex. A.) While SFPD may tow vehicles under the community caretaking doctrine (such as where a vehicle is impeding traffic or jeopardizing public safety/convenience, blocking the efficient movement of traffic or creating a public safety hazard), Petitioner has not offered any facts to suggest that her vehicle is at risk of being towed for any of those reasons. Thus, Petitioner has not demonstrated that she faces any imminent risk that her vehicle will be towed by SFPD. Petitioner appears to fear that her vehicle will be towed at the behest of “hostile” neighbors. To the extent a neighbor may have her car towed for blocking a driveway or for any other reason, the relief she seeks against the City will not prevent that. Petitioner seeks to restrain the conduct of the City, but has not sought any relief against any private person. Accordingly, Petitioner has not demonstrated any immediate and irreparable harm that would warrant a TRO against the City. II. PETITIONER CANNOT ESTABLISH A REASONABLE PROBABILITY THAT SHE WILL PREVAIL ON THE MERITS. Petitioner’s TRO application should also be denied because she has not established that she will prevail on the merits. Petitioner has not provided any legal authority that would entitle her to an order restraining the City from towing her vehicle. As noted above, SFPD has decided not to tow vehicles at this time for having an expired registration. (Cox Dec. ¶¶ 2-3, Ex. A). Thus, to the extent that she seeks an order requiring SFPD to not tow her vehicle for having an expired registration, that 9 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 claim is moot. To the extent she seeks an order preventing the City from towing her vehicle for any reason, Petitioner is not entitled to that broad relief. It cannot be disputed that SFPD is entitled to tow any vehicle that is impeding traffic, threatening public safety or convenience, or otherwise creating a public safety hazard. Indeed, under South Dakota v. Opperman (1976) 428 U.S. 364, 369, “[t]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” (Id.; see also Hallstrom v. City of Garden City (9th Cir. 1993) 991 F.2d 1473, 1478). Petitioner is not entitled to relief that would constrain SFPD’s ability to comply with its duties under the community caretaking doctrine. Further, Petitioner has not provided any legal authority supporting her claim that the City should be ordered not to tow her vehicle. She claims that she has a right to keep her vehicle on City property because she is homeless and does not wish to accept the shelter options the City has offered, but that is incorrect. So far as the City is aware, no court has ever held that a local government that is offering alternative shelter must allow a person or their vehicle to remain on public property indefinitely, and there is no legal basis for such an order. Indeed, in holding that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter,” the Ninth Circuit made clear that “we in no way dictate to the City that it must … allow anyone who wishes to sit, lie, or sleep on the streets ... at any time and at any place.” (Martin v. City of Boise (9th Cir. 2019) 920 F.3d 584, 616; see also, e.g., Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 57-60 [anti-camping ordinance was not criminalization of homelessness].) Courts have repeatedly held that there is no right to occupy a particular piece of public property when there are other places available-to say nothing of when the City is affirmatively offering alternative shelter. (See, e.g., Miralle v. City of Oakland (N.D. Cal., Nov. 28, 2018, No. 18-CV-06823-HSG) 2018 WL 6199929, at *2 [“Martin does not establish a constitutional right to occupy public property indefinitely at Plaintiffs’ option”].) Further, the relief Petitioner seeks would impermissibly interfere with the City’s policy judgments. The extent to which motorhomes may be allowed on City streets has been a matter of significant debate and policy discussion in the City. (See, e.g., RJN Ex. A & B.) On the one hand, the City recognizes that “oversized vehicles parked on city streets can present a variety of public safety 10 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 and public health problems, from impaired sight lines for road users to illegal dumping of garbage and waste matter on sidewalks and streets. Graffiti and tagging of oversized vehicles parked on city streets contributes blight to neighborhoods. And, with a finite supply of on- street parking, oversized vehicles (which take more curb space than smaller vehicles) can reduce availability of curb for other needs.” RJN Ex. A. On the other hand, the City seeks to balance those “real public health and safety concerns against providing compassion for vulnerable populations who must live in vehicles since they may otherwise live on the street or be forced to leave the City where they may be employed, have support services, or utilize other networks.” (Ibid.). The Court should decline Petitioner’s invitation to wade into that policy debate by preventing the City from addressing any harms caused by Petitioner’s oversized vehicle as they arise. (People v. Kellogg (2004) 119 Cal.App.4th 593, 605 [“we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies”]; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1092 fn. 12 [“arguments … regarding the apparently intractable problem of homelessness and the impact of the Santa Ana ordinance on various groups of homeless persons (e.g., teenagers, families with children, and the mentally ill) should be addressed to the Legislature and the Orange County Board of Supervisors, not the judiciary.”].) Finally, if SFPD tows her vehicle, Petitioner asks that the Court issue a “preemptive” order that would require the City to waive fees and return her vehicle. (TRO App. at p. 2.) Petitioner is not entitled to that relief. The City offers programs for low-income administrative tow fee waivers that Petitioner can apply for if her vehicle is towed. (See, e.g., https://www.sfmta.com/getting- around/drive-park/towed-vehicles/reduced-fees-first-time-tow-and-low-income-individuals.). There is no reason for the Court to issue an advisory opinion about whether Petitioner would be entitled to a fee waiver for a vehicle that, to the best of the City’s knowledge, has not been towed. Petitioner’s claim that she may be entitled to a fee waiver if her vehicle is towed is not yet ripe, and should not be considered by the Court. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th 1559, 1573 (“The ripeness element of the doctrine of justiciability is intended to prevent courts from issuing purely advisory opinions.”); People ex rel. Lynch v. Super. Ct., 1 Cal. 3d 910, 912 (1970) (“The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.”) 11 INSERT 1 LINE ONLY ABBREV DOC NAME & CASE NO. n:\govlit\li2021\210420\01503887.docx 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 26 27 28 III. THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IS NOT IN THE PUBLIC INTEREST. Finally, a TRO in this case would not be in the public interest. “Where, as here, the plaintiff seeks to enjoin public officers and agencies in the performance of their duties the public interest must be considered.” (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1472-1473.) As discussed above, there are a variety of circumstances in which the City must tow a vehicle - for example, to protect public safety and/or to ensure the use of the streets for all residents of San Francisco. An order that prevents the City from towing Petitioner’s vehicle under any circumstances would substantially undermine the City’s ability to protect public health and safety, as well as to enforce the law. It is not in the public interest. CONCLUSION Petitioner seeks a TRO that is unnecessary and that would usurp the City’s ability to enforce the law for the protection of all City residents. The requested relief has no basis in the law nor in the facts of this case. The application should be denied. Dated: January 5, 2021 DENNIS J. HERRERA City Attorney WAYNE K. SNODGRASS JEREMY M. GOLDMAN TARA M. STEELEY Deputy City Attorneys By: s/Tara M. Steeley TARA M. STEELEY Attorneys for Respondent CITY AND COUNTY OF SAN FRANCISCO