Prado v. City of Berkeley

• Court: District Court, N.D. California
• Decided: August 6, 2024
• Docket: 3:23-cv-04537
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 YESICA PRADO, et al., Case No. 23-cv-04537-EMC

8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 10 CITY OF BERKELEY, 11 Defendants. Docket No. 51

12 13 I. INTRODUCTION 14 Named Plaintiffs and the organization, Where Do We Go Berkeley (“WDWG”) have 15 brought a class action on behalf of unhoused disabled individuals living in the City of Berkeley 16 (“the City”). Plaintiffs allege that, throughout the City’s abatements, evictions, and treatment of 17 disabled unhoused persons, the City has violated the Fourth Amendment’s prohibition against 18 unreasonable search and seizure, the Americans with Disabilities Act (ADA), the Fair Housing 19 Act, the Eighth Amendment pursuant to Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), and 20 the Plaintiffs’ due process rights by placing them in a state-created danger (and the corresponding 21 state law claims where applicable). In response, the City challenges WDWG’s standing and 22 moves to dismiss each of Plaintiff’s causes of action. 23 For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN 24 PART. 25 II. FACTUAL BACKGROUND 26 The named Plaintiffs are seven unhoused, disabled individuals who live in the City of 27 Berkeley. Most of them live or have lived at a homeless encampment which spans several blocks 1 Harrison Encampment”). FAC, ¶ 134. The encampment has been established for ten years and 2 has been the site of several abatements and evictions. Id. 3 A. Plaintiff Yesica Prado 4 Plaintiff Yesica Prado lives at the 8th and Harrison Encampment in an RV parked on 8th 5 Street between Harrison and Gilman. FAC, ¶ 23. Ms. Prado has been diagnosed with Post 6 Traumatic Stress Disorder (“PTSD”) and Attention Deficit Hyperactivity Disorder (“ADHD”). Id. 7 ¶ 22. She alleges that “these disabilities limit her major life activities by affecting her ability to 8 handle stressful situations, feel safe, learn, read, think, and communicate.” Id. As a result of her 9 ADHD, to be able to process information, she often needs to take notes or record conversations to 10 be able to re-listen to them. Id. She alleges that “being in community and being able to live with 11 others is critical to her mental health and ameliorating her PTSD. Her experiences living as an 12 unhoused person in Berkeley have contributed to her PTSD, which makes it difficult for her to 13 trust and be around representatives of the City.” Id. 14 Ms. Prado received an offer of shelter at the Campus Motel but was told that she could not 15 park her RV there. FAC, ¶ 23. She was told she could park it on the streets, but there are no 16 places in Berkeley to park an RV for more than 72-hours without having to move it. Id. If she 17 went to temporary shelter, and was not allowed to stay, and her RV were seized and destroyed, she 18 would have nowhere to go. Id. ¶ 26. She told the City that, as an accommodation for her mental 19 health disabilities, she needs to be able to have visitors in her space at any shelter, because her 20 community is critical to her mental health. Id. ¶ 25. She was told that all motel shelters have a 21 “no visitor” policy and no accommodation was offered to her. Id. 22 B. Plaintiff Lucien Jeffords 23 Plaintiff Lucien Jeffords lives at the 8th and Harrison Encampment in his RV on Harrison 24 Street between 7th and 8th Street. FAC, ¶ 27. Mr. Jeffords alleges that:

25 He has serious respiratory and gastrointestinal issues that have left him very physically weak, and he becomes easily winded, cannot 26 walk long distances, and needs assistance to move his belongings. Mr. Jeffords has intellectual disabilities that affect his memory and 27 ability to think clearly and understand written materials. When November 7, 2023 abatements, he finds them confusing and hard to 1 follow, and he is left feeling scared. 2 Id. ¶¶ 27- 28. 3 Mr. Jeffords was offered a space at the Berkeley Inn in late August 2023, before a notice of 4 abatement was posted where he lives at the Harrison encampment in early September. FAC, ¶ 28. 5 The offer was made to Mr. Jeffords around the time he frequently left the encampment to attend 6 appointments related to a medical procedure. Id. After the procedure, Mr. Jeffords returned to his 7 RV, and there were no further discussions with the city about the offer of shelter. 8 Since then, the City’s offer of shelter has been renewed, but the City will not permit Mr. 9 Jeffords to bring his second emotional support animal, nor has it provided Mr. Jeffords with the 10 accommodations and support necessary for him to access shelter (though the FAC does not say 11 what other accommodations he needs). FAC, ¶ 28. He is concerned about the shelter’s no- 12 visitor’s policy because he relies on the support of his neighbors to watch out for him and check 13 on him with respect to his health issues. Id. ¶ 30. Further, Mr. Jeffords has been told that if he 14 accepts a space at the Berkeley Inn, the City will “take care of his RV.” Id. ¶ 29. When he asked 15 what this meant, he was told they would impound it and then sell or destroy it. Id. 16 C. Plaintiff Erin Spencer 17 Plaintiff Erin Spencer’s disabilities include “injuries in his shoulder and back that cause 18 him significant chronic pain and limit his shoulder mobility and ability to engage in daily life 19 activities such as lifting and carrying objects and cleaning his space.” Id. ¶ 37. He has been 20 diagnosed with Major Depressive Disorder and PTSD. Id. ¶ 38. He allegedly has:

21 [C]omplex trauma from a childhood of abuse and neglect, from his time in the military, and from his time in jail. … These disabilities 22 impact his ability to function within rigid, hierarchical rule structures, to comply with orders, to process information when he is 23 stressed, and sometimes lead to panic attacks. … Evictions are also traumatizing for him. He has had panic attacks during evictions. 24 When workers surround him and begin throwing away his belongings and taking apart his home, he can only see the people 25 around him as enemies and his experience from the military overwhelms him. His mental health disabilities require him to have 26 close contact with his social support. 27 Id. 1 after which he would have to start over, re-gathering materials for shelter and survival— 2 sometimes as often as every two weeks. FAC, ¶ 32. He has been offered a place at the Campus 3 Motel temporary shelter program, but the restrictive policies, including the prohibition on visitors, 4 limitations on storage, and lack of privacy mean that the motel program is not a viable option for 5 him given his mental health needs. Id. ¶ 40. He does not feel comfortable or safe living in an 6 enclosed environment where he does not have control over who comes into his space. Id. “He 7 believes that if he went into a motel program, the environment would invoke a trauma response, 8 and he would have immense difficulty complying with the rules. He would likely soon be kicked 9 out of the program, without any of the items that he needs to survive on the streets.” Id. 10 D. Plaintiff Amber Whitson 11 Plaintiff Amber Whitson is a “qualified person with a disability”; she has Complex Post- 12 Traumatic Stress Disorder (CPTSD), ADHD, Gastrointestinal Reflux Disease, and sciatica. FAC, 13 ¶ 45. She alleges that “her disabilities impact major life activities by making it difficult for her to 14 live in places where she does not feel secure and be without her pets who she relies on for 15 emotional support.” Id. She lives in an RV and receives constant tickets because she is not able to 16 move her RV every 72 hours. Id. ¶ 49. She alleges that “the constant threat and actuality of 17 negative contacts with the police while she is parked illegally on the street triggers her CPTSD. 18 Id. ¶ 50. She has not been offered shelter. At the beginning of 2023, she was told she would get 19 help to find housing, but she was not evaluated for eligibility and has not heard about her 20 application since then. Id. ¶ 47. 21 E. Plaintiff Rufus Lee White, Jr. 22 Plaintiff Rufus Lee White Jr.’s disabilities are the result of:

23 [I]njuries from a serious accident, being hit by a car, and physical attacks by others. In an accident ten years ago, Mr. White Jr. broke 24 his neck and suffered nerve damage in his lower body. Id. He has screws in his neck and his lower body is partially paralyzed and he 25 often needs assistance getting in and out of his wheelchair. Id. He also has an amputated middle finger on his left hand, and he has 26 suffered from a head injury, which has impacted his long-term memory. He experiences chronic pain. He also has no peripheral 27 vision, and he has glaucoma. Id. These disabilities restrict his attacks and mood swings. … Mr. White Jr.’s intellectual and mental 1 health disabilities impact his memory, and limit his attention, concentration, executive functioning, and ability to sustain 2 employment and relationships with others. 3 FAC, ¶¶ 51-52. 4 Mr. White Jr. alleges that:

5 The City has taken and thrown away [his] belongings on multiple occasions when they have come to Harrison Street to pick up trash 6 or do abatements. They have taken his tent with all his belongings that were inside four times including important personal documents 7 that he needs to access benefits and services. When his property is taken and thrown away, he endures a long process of replacing 8 documents such as his ID and SSI cards and locating replacement survival gear, including tents, sleeping bags, blankets, clothes, and 9 mobility devices. 10 FAC, ¶ 53. 11 In September of 2023, a City outreach worker came to Harrison Street and verbally offered 12 Mr. White Jr. shelter in one of its temporary shelter motel programs. FAC, ¶ 57. When he 13 followed up with the City through counsel regarding the offer, the City told him that it could not 14 provide him with shelter at that time because there were “no open ADA rooms,” and he would 15 need to wait until one became available. Id. 16 F. Plaintiff Jermaine Lee “Cat” White 17 Plaintiff Jermaine Lee “Cat” White has severe PTSD and anxiety which impacts his major 18 life activities, including his ability to concentrate, think and communicate. FAC, ¶ 59. The City 19 has destroyed his belongings in a number of evictions. Id. During one sweep, the City destroyed 20 his four bikes, his guitar, and everything else in his camp, all of which were destroyed by trash 21 compactors. Id. Another time, the City came out in riot formation to destroy people’s belongings, 22 and he was too traumatized to stay and watch his belongings be destroyed. Id. The City has never 23 stored any of his belongings during any of the evictions he has been subjected to. Id. ¶¶ 59, 64. 24 Mr. White alleges that:

25 He wants assistance to be housed, but for services to be accessible to him, he needs accommodations and mental health services to help 26 him overcome his past trauma and fears of losing all his belongings again. When outreach and services are offered to him, he needs 27 reasonable accommodations to understand the specifics of what is 1 Mr. White has not received any outreach from the City from mental health workers, nor has he received any information regarding 2 support or services for his mental health issues. 3 FAC, ¶¶ 65-66. 4 G. Plaintiff Monique Williams 5 Plaintiff Monique Williams currently lives at the Campus Motel in Berkeley. FAC, ¶ 67. 6 She has PTSD related to an abusive relationship and other incidents, and impaired short-term 7 memory from getting hit on the back of the head with a gun. Id. Ms. Williams suffers from a 8 serious hip injury which makes sitting for long periods extremely difficult, and she has metal pins 9 in her arms that hurt when it is cold outside or when she is exposed to extreme elements. Id. 10 “These disabilities impact major life activities, including her ability to withstand exposure to the 11 cold and elements and sit for long periods of time because of the pain in her hip and arms, and her 12 ability to process information, feel safe, rest, and leave her room given the trauma she has 13 experienced.” Id. 14 Ms. Williams had previously lived in an RV. FAC, ¶ 68. She alleges that:

15 Based on conversations she had with the City, she understood that if she accepted the motel option, her RV would be stored by the City. 16 … However, once Ms. Williams accepted a spot at the motel, the City took the keys and title to her RV, towed the RV away, and 17 destroyed it, thereby destroying Ms. Williams’s only source of permanent, safe shelter. She cannot live in a tent due to her 18 disabilities because it gets too cold and the metal pins in her arm cause her pain. 19 Id. This is especially harmful for Ms. Williams who cannot live in a tent because she is a survivor 20 of domestic violence, and her abuser is actively pursuing her. Id. ¶ 73. He has tried to kill her 21 multiple times before. She fears that he would slash open the sides of a tent and harm or even kill 22 her. 23 The program at the Campus Motel does not accommodate Ms. Williams’s disability- 24 related needs: 25 Due to her mental health issues and short-term memory loss, she has a hard time understanding and remembering the rules of the 26 program. She feels like the rules are unclear and always changing and fears accidentally breaking a rule she did not know about and 27 then being kicked out of the program. … The no-visitor policy has order to mitigate her PTSD. 1 FAC, ¶ 70. Additionally, the lack of privacy at the motel makes her feel her possessions are 2 unsafe. Id. ¶ 71. The staff members also knock and enter immediately without waiting for a 3 response. Id. One time they came in while she was in the shower. She states that “these 4 invasions of privacy make her feel violated and trigger her PTSD.” Id. 5 H. Plaintiff Where Do We Go Berkeley 6 Plaintiff Where Do We Go Berkeley (“WDWG”) is a 501(c)(3) nonprofit Corporation 7 whose board is made up of people who are homeless or housing insecure and advocates. FAC, ¶ 8 77. WDWG’s mission is to serve, support and advocate for homeless individuals in the East Bay. 9 Id. WDWG was founded in September 2019 in response to local government policies and 10 practices of “evicting” and “sweeping” homeless encampments without providing residents with 11 accessible shelter, housing, or any legal place to go. Id. WDWG provides direct outreach, 12 advocacy, and material support for people living on the street and for people temporarily housed in 13 shelters and transitional facilities funded by government and operated by nonprofits. Id. ¶ 78. 14 The FAC alleges that: 15 When evictions happen, established encampments that [WDWG] 16 has supported and supplied with material resources are disbanded, and individuals who had been living in those encampments scatter. 17 [WDWG] is then forced to expend resources providing replacement resources and also finding residents who have left and then 18 reestablishing a relationship. …

19 Evictions without the provision of accessible alternatives make it particularly difficult to provide services to people with disabilities. 20 Additionally, the evictions make it difficult for [WDWG] to keep track of the sick, elderly, mentally and physically disabled it has 21 been working to help. …

22 When the City destroys people’s possessions in the course of sweeps and evictions, it drains the resources of WDWG, which is forced to 23 expend limited funds replacing belongings the City is destroyed that are essential for survival on the street. … WDWG has resupplied 24 people with new shelters and tents, sleeping bags, clothes, undergarments, food, shoes, tent heaters, tarps, buckets for fecal 25 waste, toothbrushes, toothpaste, toilet paper, socks, deodorant, blankets, medicines, storage tubs, and many other items, after they 26 were taken by the City during the eviction.

27 WDWG has been required to divert resources to advocating for WDWG has received numerous complaints about service providers 1 that operate these facilities who do not accommodate the disabilities of residents and enforce rules and regulations arbitrarily in ways that 2 render the facilities inaccessible to people with disabilities. It receives complaints about the poor quality of food provided 3 residents; failure to assure the safety of residents, particularly female residents; failure to respect the privacy of residents; excessively 4 strict enforcement of curfews that result in vulnerable and disabled residents being locked out for the night; failure to provide housing 5 navigation services to move people into permanent housing; failure to accommodate people with disabilities in the provision of services; 6 and failure to provide a fair and accessible way that people can bring grievances to the organization facilities and have complaints fairly 7 evaluated and addressed. The need to devote a disproportionate amount of time to dealing with grievances about transitional 8 facilities frustrates the mission of WDWG to support the greatest possible number of people experiencing homelessness in the East 9 Bay. 10 FAC, ¶¶ 81-84. 11 I. Class Allegations 12 The proposed class is defined as: “All unhoused persons who have a ‘disability’ as defined 13 under the Americans with Disabilities Act (“ADA”), who reside in a vehicle or other shelter in 14 public spaces in Berkeley, California, or who reside in temporary or transitional shelters in 15 Berkeley, California.” FAC, ¶ 214. Of the 1,057 unhoused residents in Berkeley, 62.3% have 16 disabilities, which means the class likely includes at least 658 members. Id. ¶ 217. 17 J. Factual Allegations1 18 The named Plaintiffs are seven unhoused, disabled individuals who live in the City of 19 Berkeley; many of whom have lived at the 8th and Harrison Encampment. FAC, ¶ 134. The 20 encampment has been established for ten years and has been the site of several abatements and 21 evictions. Id. As of the most recent census of unhoused residents of Berkeley, in 2022, 62.3% of 22 1 At this stage of the litigation, only the allegations that pertain to named Plaintiffs can be 23 contemplated in the Court’s analysis of the legal issues alleged, though the FAC discussed incidents involving additional disabled unhoused individuals. For example, one incident involved 24 a woman named Eve who lives close to the Eighth and Harrison encampment but lives apart from Plaintiffs because her mental health issues are so severe. FAC, ¶ 107. She does not talk to 25 Plaintiffs and does not read the notices posted in their encampment. Id. Because the City does not bring anyone with mental health training to talk to her, Eve was unaware of the looming evictions. 26 Id. Before the August 22, 2023, abatement, Ms. Prado talked to Assistant City Manager Peter Radu and insisted that a trained mental health professional come speak to Eve, because she would 27 otherwise be at risk of losing her shelter and could be arrested. Id. ¶ 109. Members of Berkeley 1 unhoused residents reported having a mental health disability, 33.1% reported a physical 2 disability, 30.6% had a chronic health condition, and 18.3% had a developmental health condition. 3 FAC, ¶ 86. 86.2% of the residents at the 8th and Harrison Encampment have mental health 4 disabilities. Id. at ¶ 111. The City engages in outreach to unhoused individuals regarding service 5 options and upcoming abatements and evictions, but mental health workers are not included in 6 outreach to unhoused residents. Id. ¶ 87. Enforcement actions are conducted against 7 encampments without any effort to accommodate the needs of unhoused people with disabilities. 8 Id. Further, there is insufficient shelter space that is accessible to people with mobility disabilities 9 and mental health conditions. Id. 10 There are currently over 1,000 people in Berkeley experiencing homelessness. FAC, ¶ 88. 11 In a memo submitted to the Berkeley City Council on September 21, 2023, assistant City Manager 12 Peter Radu stated, “[o]n any average day, the HRT [Homeless Response Team] has fewer than 10 13 vacancies to work with across the entire shelter system, meaning that under the Ninth Circuit’s 14 rulings many encampments in our city must be able to remain in place. … It is critical to 15 understand and accept that unsheltered homelessness is our new normal as a community.” Id. ¶ 16 91. 17 Nonetheless, over the past several years, the City and other agencies have closed or 18 participated in the closure of a large number of encampments. FAC, ¶ 92. The City has also 19 begun to more aggressively enforce parking regulations such as 72-hour and 4-hour parking limits 20 that target people who live in their cars or RVs, decreasing the number of locations individuals 21 who live in their vehicles can park. Id. ¶ 92. 22 The complaint alleges:

23 There is nowhere in the City where unsheltered residents can legally camp. Berkeley has passed and enforces a series of ordinances and 24 regulations that, taken together, effectively make it impossible for a person experiencing homelessness to shelter in a public space. They 25 cannot legally erect a tent or structure on a sidewalk or in a park; they cannot park a vehicle and live in it without violating city 26 ordinances and/or the California vehicle code.

27 1 FAC, ¶ 93.2 The City allegedly has a pattern and set of practices it employs when it abates or 2 clears an encampment. Id. at ¶ 123. The elements of these pattern include:

3 (1) posting vague notices that do not provide a specific time and date on when the City’s abatement action will occur and do not 4 clearly delineate the areas or property subject to “abatement”; (2) not providing encampment residents with sufficient time to 5 prepare, including noticing an abatement action on a Friday for an abatement that takes place on a Monday; 6 (3) including vague instructions on the abatement notices regarding what encampment residents can do to comply with the notice; 7 (4) threatening and conducting arrests of residents and issuing citations; 8 (5) summarily destroying property, including vehicles, without providing individualized notice and an opportunity to be heard as to 9 why a person should not be permanently dispossessed of their property; and 10 (6) refusing to provide encampment residents with disability accommodations that they need in order to comply with the City’s 11 actions.

12 Id. The outreach and abatement teams do not include mental health workers who can 13 meaningfully explain what is happening to Plaintiffs. Id. at ¶ 125. 14 For example, on September 30, 2022, the city posted a “Notice of Imminent Health Hazard 15 and Emergency Abatement” near the intersection of 8th and Harrison, stating the abatement would 16 take place three days later, on October 3, 2022. FAC, ¶ 141. The FAC alleges: 17

18 City officials attaches copies of the notice to fences, tents, and telephone poles with duct tape. Minimal effort was made to 19 communicate with residents regarding what this “abatement” action would entail, and what residents could do to comply. The 20 “abatement” was authorized for purposes of addressing rodent harborage, although nothing in the notice indicated that residents 21 were being asked to leave, or that their shelters would be removed.

22 At 6:20 a.m. on October 4, 2022, [the City] moved in with heavy machinery, a phalanx of Berkeley Police officers, and city officials, 23 to destroy 29 tents, three structures, and impound and then crush four vehicles that unhoused residents were relying on for shelter. 24 During the eviction, Peter Radu [the Assistant to the City Manager] admitted that there were more residents than available shelter beds, 25 which is why the City was not asking people to leave. However, despite the lack of beds, the City proceeded to destroy many 26 residents’ only source of shelter, offering no alternative or replacement. 27 … 1 [The City] threw away Plaintiff Rufus Lee White Jr.’s tent and all his belongings, including all his pants, despite his protests. He was 2 offered a two-person tent but cannot access a two-person tent because his mobility disability prevents him from being able to get 3 into the tent. Plaintiff White was left in his wheelchair without pants, completely without shelter. He ended up sleeping outside— 4 wherever he got tired—for several days before LifeLong Medical donated a new tent to him. 5 6 FAC, ¶¶ 141-42, 144. 7 The City has a pattern of destroying Plaintiffs and Class members’ property during 8 abatements and closures, even when faced with individuals making legitimate claims of 9 possessory interest in the property and protesting its seizure and destruction. FAC, at ¶ 130. On 10 some occasions, the items being destroyed are mobility devices like wheelchairs, walkers, 11 crutches, and medication. Id. The City does not provide Class members subject to abatement or 12 encampment closures a meaningful opportunity to identify and preserve their property. Id. The 13 City’s practice is to arrive early in the morning with a backhoe to destroy encampment residents’ 14 possessions, without first identifying in advance who is there, whether they have alternative 15 shelter to go to, what property they have, and where it will be stored. Id. 16 The City closes encampments and takes Plaintiffs survival gear, including “tents, bedding, 17 jackets, medications, and mobility devices,” FAC, ¶ 2, when they have no place to go and does not 18 allow sufficient time for outreach workers to contact people being displaced to find them safe, 19 accessible housing. Id. at ¶ 132. These dangers are particularly acute for the many people who 20 have been displaced who have serious mental and physical disabilities. Id. The 8th and Harrison 21 Encampment works for Plaintiffs because it is close to necessary establishments like grocery 22 stores and gas stations. Id. ¶ 134. The community has a well-established system of mutual aid 23 and support. Id. ¶ 135. Residents watch each other’s belongings while individuals work, rest, 24 complete chores, and obtain food and water. Id. They keep each other safe and keep each other 25 company, which is critical for the residents who have mental and physical health needs. Id. 26 Additionally, Plaintiffs allege that the City has a practice of seizing and crushing Plaintiffs’ 27 RVs. Ms. Williams alleges that she previously lived in an RV. FAC, ¶ 68. She was in 1 with the City, that if she accepted the motel option, her RV would be stored by the City. Id. 2 However, once Ms. Williams accepted a spot at the motel, the City took the keys and title to her 3 RV, towed it away, and destroyed it. Id. Further, as previously discussed, during the October 4, 4 2022 abatement, to the City destroyed “29 tents, three shelters, and impound and then crush four 5 vehicles that unhoused residents were relying on for shelter.” Id. ¶ 142. 6 III. LEGAL STANDARDS 7 A. Federal Rule of Civil Procedure Rule 12(b)(1) 8 Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. 9 Lack of such jurisdiction may occur where the plaintiff lacks standing; “lack of Article III 10 standing requires dismissal for lack of subject matter jurisdiction under [Rule] 12(b)(1).” Maya v. 11 Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). 12 The “irreducible constitutional minimum” of Article III standing requires that a “plaintiff 13 must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 14 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. 15 Robins (“Spokeo II”), 136 S. Ct. 1540, 1547 (2016). These three elements are referred to as, 16 respectively, injury-in-fact, causation, and redressability. Planned Parenthood of Greater Was. & 17 N. Idaho v. U.S. Dep't of Health & Human Servs., 946 F.3d 1100, 1108 (9th Cir. 2020). “The 18 plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these 19 elements,” which at the pleadings stage means “clearly . . . alleg[ing] facts demonstrating each 20 element.” Spokeo II, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). 21 A Rule 12(b)(1) jurisdictional attack may be factual or facial. See Safe Air for Everyone v. 22 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack,” “the challenger asserts that the 23 allegations contained in a complaint are insufficient on their face to invoke federal 24 jurisdiction.” Id. The Court “resolves a facial attack as it would a motion to dismiss 25 under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all reasonable 26 inferences in the plaintiff’s favor, the Court determines whether the allegations are sufficient as a 27 legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 1 “[I]n a factual attack, the challenger disputes the truth of the allegations that, by 2 themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 3 1038. In resolving such an attack, unlike with a motion to dismiss under Rule 12(b)(6), the Court 4 “may review evidence beyond the complaint without converting the motion to dismiss into a 5 motion for summary judgment.” Id. Moreover, the Court “need not presume the truthfulness of 6 the plaintiff's allegations.” Id. 7 Either way, “it is within the trial court’s power to allow or to require the plaintiff to supply, 8 by amendment to the complaint or by affidavits, further particularized allegations of fact deemed 9 supportive of plaintiff’s standing.” Warth, 422 U.S. at 501; see also Table Bluff Reservation 10 (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 882 (9th Cir. 2001) (in assessing standing, the 11 Court may consider “the complaint and any other particularized allegations of fact in affidavits or 12 in amendments to the complaint”). 13 B. Federal Rule of Civil Procedure Rule 12(b)(6) 14 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 16 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 17 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s 18 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 19 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the 20 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th 21 Cir. 2014). The Court “accept[s] factual allegations in the complaint as true and construe[s] the 22 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 23 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not 24 simply recite the elements of a cause of action [and] must contain sufficient allegations of 25 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 26 Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 27 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual 1 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 2 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 3 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 4 C. Federal Rule of Civil Procedure 12(f) 5 Before responding to a pleading, a party may move to strike from a pleading any 6 “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The essential 7 function of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise 8 from litigating spurious issues by dispensing with those issues prior to the trial.” Wang v. OCZ 9 Tech. Grp., Inc., 276 F.R.D. 618, 624 (N.D. Cal. Oct. 14, 2011) (quoting Whittlestone, Inc. v. 10 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)). Motions to strike are generally disfavored. 11 See Shaterian v. Wells Fargo Bank, N.A., 829 F. Supp. 2d 873, 879 (N.D. Cal. 2011); Platte 12 Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). A motion to strike 13 should only be granted if the matter sought to be stricken clearly has no possible bearing on the 14 subject matter of the litigation. See Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 15 (N.D. Cal. 1991); Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 16 grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (“‘Immaterial matter’ is that which has no 17 essential or important relationship to the claim for relief or the defenses being pleaded.”). 18 Statements that do not pertain to, and are not necessary to resolve, the issues in question are 19 impertinent. Id. If there is any doubt whether the portion to be stricken might bear on an issue in 20 the litigation, the Court should deny the motion to strike. Platte Anchor Bolt, 352 F. Supp. 2d at 21 1057. Just as with a motion to dismiss, the Court should view the pleading sought to be struck in 22 the light most favorable to the nonmoving party. Id. 23 IV. DISCUSSION 24 A. The Allegations in the FAC That Occurred After September 4, 2023 Will Not Be Stricken 25 On September 29, 2023, the City filed a motion to dismiss. Docket No. 27. On October 26 16, 2023, the Court granted the parties’ stipulated request to extend the plaintiffs’ deadline to file 27 their FAC. Docket No. 33. In the stipulated Order, it stated that Plaintiffs sought to amend its 1 that occurred after September 4. 2 The City argues that allegations as to events occurring after September 4 should be 3 stricken from the FAC. This is because amendment does not permit Plaintiffs to add subsequent 4 allegations (pursuant to Fed. R. Civ. Proc. 15(a)(1)(B)). Rather, Plaintiffs would have to move to 5 supplement its pleadings pursuant to Fed. R. Civ. Proc 15(d) to add subsequent allegations past the 6 date the original complaint was filed. 7 The Ninth Circuit has stated that trial courts should “liberally construe Rule 15(d) absent a 8 showing of prejudice to the defendant.” Keith v. Volpe, 858 F.3d 467, 475 (9th Cir. 1988). Here, 9 the City did not make a showing that they were prejudiced by Plaintiff’s supplementing their 10 complaint without making a formal Rule 15(d) motion. “A strict interpretation of Rule 15(d) 11 would emphasize the formality of pleading over substance.” Id. (quoting H.F.G. Co. v. Pioneer 12 Pub. Co., 7 F.R.D. 654, 656 (N.D. Ill. 1947)). The Court could permit Plaintiffs leave to amend to 13 formally supplement their complaint to add facts occurring after September 4, or it could simply 14 deem the complaint so supplemented. Here, in the interest in efficiency and in the absence of 15 prejudice to Defendants liberally construes Rule 15(d), the Court will not strike the events in the 16 FAC that occurred after September 4, 2023. 17 B. WDWG has Sufficiently Plead Organizational Standing 18 As noted above, the “irreducible constitutional minimum” of standing requires that a 19 “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged 20 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 21 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “[T]he plaintiff must have suffered an “injury 22 in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and 23 (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Widlife, 504 U.S. 24 555, 560 (1992). The City contends that Plaintiffs fail to allege injury in fact on behalf of WDWG 25 for organizational standing. 26 “Under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), an organization may 27 establish ‘injury in fact if it can demonstrate: (1) frustration of its organizational mission; and (2) 1 United States Dep’t of the Army, 938 F.3d 1147, 1154 (9th Cir. 2019). “Organizations cannot 2 ‘manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a 3 problem that otherwise would not affect the organization at all,’ but they can show they ‘would 4 have suffered some other injury’ had they ‘not diverted resources to counteracting the problem.’” 5 E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021) (quoting La Asociacion de 6 Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)). In cases 7 where the Ninth Circuit found organizational standing, “the [organizations] were not ‘simply 8 going about their “business as usual,”’ but had altered their resource allocation to combat the 9 challenged practices.” Am. Diabetes Ass’n, 938 F.3d at 1154 (collecting cases). 10 “This requirement was satisfied, for example, when an organization designed and 11 disseminated literature to redress the effects of the challenged discrimination, Fair Hous. Of 12 Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002), and when an organization started new 13 campaigns targeting discriminatory roommate preference practices, Fair Hous. Council of San 14 Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 1219 (9th Cir. 2012).” Friends of the 15 Earth v. Sanderson Farms, Inc., 992 F.3d 939, 942 (9th Cir. 2021). Both of these activities 16 constituted a diversion of resources from normal activities. Organizations “are not required to 17 demonstrate some threshold magnitude of their injuries; one less client that they may have had 18 but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable 19 harms that amount to pennies are still entitled to relief.” E. Bay Sanctuary Covenant, 993 F.3d at 20 665 (after asylum eligibility was stripped from migrants who crossed into the U.S. between 21 designated points of entry, inland organizations which assisted migrants seeking asylum had 22 organizational standing in part because they expended resources sending staff to the borders). 23 “In contrast, courts have found that merely continuing ongoing activities does not satisfy 24 this requirement.” Friends of the Earth, 992 F.3d at 942 (citation omitted) (holding that an 25 advocacy group did not have organizational standing because, despite defendant’s false 26 advertisements regarding its use of antibiotics in its farming practices, the advocacy group stated 27 in depositions that it did not change its advocacy strategy because of Defendant’s false 1 no organizational standing when the Association challenged a policy which “creat[ed] an 2 impermissibly ‘burdensome accommodation review process’” for accommodations for children 3 with diabetes in the army. 938 F.3d at 1150-51. The only example of a resource the Association 4 claimed it diverted as a result of this policy is that one of its staff attorneys took an intake call 5 from an army parent and explained the new policy and the family’s rights under federal law. Id. at 6 1155. The Ninth Circuit stated:

7 [T]he Association did not divert any resources but was merely going about its business as usual. Its staff attorneys dedicate a portion of 8 their time to taking calls, and one Army parent used that service. The Association has not shown that, at the time the operative 9 complaint was filed and as a result of the New Policy, the Association had altered or intended to alter its resource allocation to 10 allow its attorneys to take a higher volume of calls or separately address the New Policy. 11 Id. 12 WDWG’s organizational standing has previously been addressed by this Court. Where Do 13 We Go Berkeley v. CA Dept. of Transportation (Caltrans), 2023 WL 5964594 at *5 (N.D. Cal. 14 2021). In that case, Caltrans’ actions frustrated WDWG’s mission and WDWG diverted its 15 resources to combat Caltrans’ conduct. Id. Whereas WDWG would have otherwise spent their 16 resources to support encampments, WDWG had to purchase tents and other equipment that people 17 needed when they were forced to leave their established encampments, track former residents 18 down, resupply them with tents and other necessities of life, and assist them in reestablishing 19 contacts with service providers. Id.3 That case is similar to the facts here in the case at bar: 20

WDWG’s mission is to serve, support and advocate for homeless 21 individuals in the East Bay. … WDWG provides direct outreach, advocacy, and material support for people living on the street and 22 for people temporarily housed in shelters and transitional facilities. … 23 When evictions happen, established encampments that WDWG has supported and supplied with material resources are disbanded, and 24 individuals who had been living in those encampments scatter. WDWG is then forced to expend resources providing replacement 25 resources and also finding residents who have left and then 26 3 WDWG’s claim for organizational standing was also granted in Reed v. City of Emeryville, 568 27 F.Supp.3d 1029, 1035 (N.D. Cal. 2012). In that case, after plaintiffs were displaced for the third reestablishing relationships. 1 … Evictions without the provision of accessible alternatives make it 2 particularly difficult to provide services to people with disabilities. Additionally, the evictions make it difficult for WDWG to keep 3 track of the sick, elderly, mentally and physically disabled it has been working to help. 4 … When the City destroys people’s possessions in the course of sweeps 5 and evictions, WDWG is forced to expend limited funds replacing belongings the City destroyed that are essential for survival on the 6 street. Following evictions by the City, WDWG has resupplied people with new shelters and tents, sleeping bags, clothes, 7 undergarments, food, shoes, tent heater, tarps, buckets for fecal waste, toothbrushes, toothpaste, toilet paper, socks, deodorant, 8 blankets, medicines, storage tubs, and many other items, after they were taken by the City during the eviction. 9 WDWG has been required to divert resources to advocating for 10 people residing in transitional facilities such as motels operated by non-profit service providers under contract with the City. … 11 WDWG receives complaints that service providers who operate these facilities do not accommodate the disabilities of residents, 12 provide poor qualify food, fail to assure the safety of its residents, fail to respect the privacy of residents, strictly and excessively 13 enforce curfews that result in disabled residents being locked out for the night, and failure to provide a fair and accessible way for people 14 to bring grievances to the facilities.

15 ¶¶ 77-84. Here, as in Where Do We Go Berkeley, WDWG alleges it is forced to alter its resource 16 allocation to address disabled unhoused individual’s needs resulting from the City’s actions. 17 For instance, the complaint alleges that during the October 4, 2022, sweep, Ian Cordova 18 Morales, the President of WDWG, repeatedly asked Peter Radu, the Assistant to the City 19 Manager, for assistance storing belongings. FAC, ¶ 145. Mr. Radu refused to get a truck to 20 transport and store items and said the City would not store “bulky items” but did not specify what 21 this meant. Id. As a result, WDWG expended resources buying tents and supplies for people 22 whose belongings were taken. Id. ¶ 146. 23 WDWG has established that it “‘would have suffered some other injury’ had [it] ‘not 24 diverted resources to counteracting the problem,’” because its unhoused disabled members would 25 be without survival gear and service providers after the City’s sweeps, which WDWG 26 counteracted by diverting its resource allocation. E. Bay Sanctuary Covenant, 993 F.3d at 663 27 (quoting La Asociacion de Trabajadores de Lake Forest, 624 F.3d at 1088). Though it only 1 provided one concrete example of a time it expended resources to buy tents and supplies for 2 people, organizations “are not required to demonstrate some threshold magnitude of their injuries 3 … plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to 4 relief.” E. Bay Sanctuary Covenant, 993 F.3d at 665. WDWG has shown that it has altered its 5 resource allocation by buying more supplies in response to the City’s actions. Additionally, 6 WDWG has shown that during the City’s evictions and abatements, it has had to send advocates to 7 the encampment sites to advocate for Plaintiffs; it may be inferred this is something it normally 8 would not have to do. 9 Therefore, WDWG has organizational standing in this case. 10 C. Plaintiffs Have Stated a Plausible Claim That the City Seizes Its Property Without Proper 11 Notice in Violation of the Fourth and Fourteenth Amendments 12 The Plaintiffs have stated a plausible claim that the City’s evictions and abatements violate 13 Plaintiffs’ Fourth and Fourteenth Amendment rights, because the destruction of Plaintiffs’ 14 property is unreasonable under the Fourth Amendment and the inadequate notice raises a due 15 process issue. 16 1. Seizure of Plaintiffs’ Belongings 17 The Fourth Amendment “‘protects two types of expectations, one involving “searches,” the 18 other “seizures.” A “seizure” of property occurs when there is some meaningful interference with 19 an individual’s possessory interests in that property.’” Lavan v. City of Los Angeles, 693 F.3d 20 1022, 1027 (9th Cir. 2012) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). “A 21 seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject 22 only to a few specifically established and well delineated exceptions.” Brewster v. Beck, 859 F.3d 23 1194, 1196 (9th Cir. 2017) (quoting United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001)). 24 A seizure conducted without a warrant may still be reasonable if the official believes the 25 property is abandoned, see Lavan, 693 F.3d at 1026, believes the property poses an immediate 26 threat to public health or safety, see id. at 1024, or holds the property for its return and notifies the 27 property owner, see id. at 1030. Absent these preconditions, a seizure is unreasonable. In Lavan, 1 possessions temporarily left on public sidewalks while Plaintiffs were eating, showering, and 2 using the restroom. Id. at 1024. The Ninth Circuit upheld the district court’s preliminary 3 injunction, which barred the City from:

4 1. Seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public 5 health or safety, or is evidence of a crime, or contraband; and

6 2. Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location 7 for a period of less than 90 days. 8 Id. at 1026.4 First, the Ninth Circuit confirmed that “Appellees need not show a 9 reasonable expectation of privacy to enjoy the protection of the Fourth Amendment against 10 seizures of their unabandoned property,” because destroying one’s unabandoned property 11 meaningfully interferes with one’s possessory interest in their property, triggering the Fourth 12 Amendment’s reasonableness requirement. Id. at 1027-28, 1030. Second, the court stated that the 13 City retains “great leeway … to protect public health and safety” and may destroy property if there 14 is “an immediate threat to public health or safety.” Id. at 1024. Third, the Ninth Circuit stated that 15 “even if [a] seizure of [] property would have been deemed reasonable had the City held it for 16 return to its owner instead of immediately destroying it, the City’s destruction of the property 17 rendered the seizure unreasonable.” Id. at 1030. In other words, it may be reasonable to seize 18 property if, inter alia, the City holds the property for return to its owner. If none of these 19 preconditions are met and one’s property is summarily destroyed, it is unreasonable under the 20 Fourth Amendment. Id.; see also Garcia v. City of Los Angeles, 11 F.4th 1113, 1117 (9th Cir. 21 2021) (holding that a provision of Los Angeles’ municipal code which allowed Los Angeles to 22 discard bulky items not being used as shelter without first impounding said items, “on its face 23 violates the Fourth Amendment’s protection against unreasonable seizures.”); cf. Janosko v. City 24 of Oakland, No. 3:23-CV-00035-WHO, 2023 WL 3029256 at *3 (N.D. Cal. Apr. 19, 2023) (there 25 was no Fourth Amendment violation where the City helped unhoused individuals move and store 26 some of their belongings, gave the unhoused individuals time and an opportunity to move any 27 1 items the City would not store, and only destroyed belongings that were hazardous or dangerous to 2 move or store). The Plaintiffs specifically allege that the City destroys their personal property, 3 including “tents, bedding, jackets, medications, and mobility devices,” FAC, ¶ 2, and the City does 4 not provide Plaintiffs an opportunity to identify and preserve their property. Id. ¶ 130; see also 5 Yesica Prado, Berkeley Says It Was Aggressive In Homeless Encampment Sweeps, Promises 6 Reforms, SAN FRANCISCO PUBLIC PRESS (Aug. 2, 2023), https://www.sfpublicpress.org/berkeley- 7 apologizes-for-aggressive-homeless-encampment-sweeps-promises-reforms/.5 The FAC alleges 8 several incidents that illustrate the City destroying Plaintiffs’ property without holding the 9 property for Plaintiffs to reclaim it. 10 For example, at the October 4, 2022, abatement action, the City moved in with heavy 11 machinery, a phalanx of Berkeley Police officers, and city officials, to destroy 29 tents, three 12 structures, and impound and then crush four vehicles that unhoused residents were relying on for 13 shelter. Id. ¶ 142. During this sweep, Ian Cordova Morales, who is the President of Plaintiff 14 WDWG, repeatedly asked Mr. Radu, the assistant to the City manager, for assistance storing 15 belongings. Id. ¶ 145. Mr. Radu, the assistant to the City Manager, refused to get a truck to 16 transport and store items and said the City would not store “bulky items” but did not specify what 17 this meant. Id. The City threw away Mr. Rufus White Jr.’s tent and nearly all his belongings. Id. 18 ¶ 54. They offered him a two-person tent, but he cannot access a two-person tent because his 19 mobility disability prevents him from being able to get into the tent. Id. ¶ 144. As a result, he was 20 left with nothing but his wheelchair – he did not even have pants. He spent the next several nights 21 completely without shelter. Id. The City has destroyed Plaintiff Mr. Rufus White Jr.’s tent and 22 personal belongings four times. Id. ¶ 53. Here, the City did not have a warrant and it did not 23 identify that Mr. Rufus White Jr.’s property was a public safety and/or health risk or was 24 abandoned. The City took and destroyed Mr. Rufus White Jr.’s property without providing him 25 the opportunity to reclaim it before it was destroyed. 26 The City has also repeatedly taken and destroyed Plaintiff Mr. Spencer’s belongings. 27 1 FAC, ¶ 32. The FAC alleges:

2 In about 2015, Mr. Spencer built a shelter under the Gilman freeway exit. Then state authorities destroyed all his belongings, forcing him 3 to move from that location, and he built another shelter on the island across from the exit. At Gilman, his shelter and belongings were 4 destroyed again, and again by Caltrans and City authorities, depending on Mr. Spencer’s exact position. Mr. Spencer then 5 relocated across from the Seabreeze encampment, near the University Avenue freeway exit, and built a new shelter. Then he 6 came over to 8th and Harrison, had his belongings taken by the City again, and moved back to Seabreeze. He lived there for about two 7 and a half years. When the Seabreeze encampment was closed, he lost everything. He then moved to near the Ashby freeway exit for 8 about a year, was evicted, moved to 2nd and Page, back briefly to Seabreeze, and then finally moved back to 8th and Harrison. He has 9 been living at that location for a little over a year. 10 Id. ¶ 32. In particular, on November 7, 2023, at the beginning of an abatement procedure, Mr. 11 Spencer was actively trying to leave the area with a cart containing many of his belongings when 12 he was surrounded by at least five officers. Id. ¶ 166. They grabbed him and handcuffed him, 13 allegedly despite the fact that he was crying out in pain and telling them he had a shoulder 14 disability and was stating he would not resist arrest. Id. They arrested him and bulldozed his 15 belongings including his property designated in a 3x3 foot square, per the City’s own policy. Id. 16 ¶¶ 167-68. Here, the City’s alleged destruction of Mr. Spencer’s property before permitting him 17 the opportunity to reclaim it is constitutionally problematic for the reasons stated above. 18 For Plaintiff Mr. “Cat” White, after one of the sweeps, he moved to the Berkeley Inn for 19 28 days, but was told to leave the program because he had no income. FAC, ¶ 61. But during the 20 sweep, the City had taken and destroyed his camp, tent, and all of his other survival gear. Id. The 21 City gave him a two-person tent but never advised him where in Berkeley he could safely or 22 legally camp in the tent it provided. Id. His belongings have been seized in a number of evictions 23 (the FAC does not specify how many) and the City has never stored his belongings. Id. ¶¶ 59, 64. 24 It is unreasonable for the City to take and destroy property without providing Plaintiffs an 25 opportunity to reclaim it. 26 This case is similar to Lavan where the Ninth Circuit stated that when the City of Los 27 Angeles destroyed unhoused Plaintiffs unabandoned personal possessions left on public sidewalks, 1 Plaintiffs have plausibly alleged that the City routinely destroys their property without adequate 2 notice and opportunity to prevent its destruction. They have stated claims under the Fourth 3 Amendment. 4 2. Seizure of Vehicles 5 Plaintiffs allege that the City has a custom and practice of warrantless seizures of vehicles 6 that Plaintiffs use as shelter. Opp’n, 7. “[T]he impoundment of an automobile is a seizure within 7 the meaning of the Fourth Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th 8 Cir. 2005). “Because warrantless searches and seizures are per se unreasonable, the government 9 bears the burden of showing that a warrantless search or seizure falls within an exception to the 10 Fourth Amendment’s warrant requirement.” United States v. Cervantes, 703 F.3d 1135, 1141 (9th 11 Cir. 2012) (citing United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001)). Whether the 12 doctrine applies “turns on the facts and circumstances of each case.” Sandoval v. County of 13 Sonoma, 912 F.3d 509, 516 (9th Cir. 2018). 14 The City contends that its seizure of vehicles falls under the community caretaking 15 exception. Under the community caretaking exception, officers may “remove and impound 16 automobiles which violate parking ordinances and which thereby jeopardize both the public safety 17 and the efficient movement of vehicular traffic.” South Dakota v. Opperman, 428 U.S. 364, 369 18 (1976); see also Cervantes, 703 F.3d at 1141 (quoting Miranda, 429 F.3d at 864). The Ninth 19 Circuit stated that the application of the doctrine “depends on the location of the vehicle and the 20 police officers’ duty to prevent it from creating a hazard to other drivers or being a target for 21 vandalism or theft.” Miranda, 429 F.3d at 862 (emphasis added). “The reasonableness of an 22 impoundment under the community caretaking function does not depend on whether the officer 23 had probable cause to believe that there was a traffic violation, but on whether the impoundment 24 fits within the ‘authority of police to seize and remove from the streets vehicles impeding traffic or 25 threatening public safety and convenience …’” Id. at 864 (citations omitted) (emphasis added). 26 In Long v. Gill, police officers initiated a traffic stop on a car that had expired registration 27 tags. 981 F. Supp. 2d 966 (D. Or. 2013). The car driver also lacked a valid driver’s license, and 1 impoundment of the driver’s car was reasonable under the community caretaker exception. The 2 district court disagreed:

3 There is no dispute that at the time Deputy Gill pulled Long over, Long’s truck was not registered and Long lacked a valid license and 4 insurance. However, those facts alone do not automatically justify Deputy Gill’s decision to impound Long’s truck. Miranda, 429 F.3d 5 at 865 (the question is not whether state law authorized the impoundment, but whether or not the seizure was reasonable under 6 the Fourth Amendment) (internal citation omitted). Additionally, impounding Long’s truck solely as a means to deter Long from 7 subsequently driving without a license, insurance, or registration is, on its own, unreasonable under the community caretaker doctrine. 8 See id. at 866 (“The need to deter a driver's unlawful conduct is by itself insufficient to justify a tow under the ‘caretaker’ rationale.”). 9 Rather, in order to fall under the community caretaker exception, Deputy Gill must have reasonably believed Long’s truck jeopardized 10 public safety or the efficient movement of traffic. Id. at 864 (quoting Opperman, 428 U.S. at 368-69. The inquiry is fact specific, and 11 includes a determination of whether the vehicle was subject to theft or vandalism. Id. (internal citations omitted). 12 Id. at 969 (emphasis added). 13 Although South Dakota and Miranda state that the community caretaker exception requires 14 a risk to public safety and/or impeding traffic, some courts assumed and held that mere 15 unregistered status or illegal parking may be sufficient to invoke the community caretaker 16 exception even in the absence of a clear public safety or traffic risk. For instance, in United States 17 v. Hunnicutt, the Tenth Circuit stated that police officers properly impounded a vehicle in their 18 community-caretaking function after they pulled over a driver who could not produce any 19 verification of insurance and had a suspended license. 135 F.3d 1345, 1351 (10th Cir. 1998). 20 Likewise, some courts have found seizures authorized by California Vehicle Code § 22651(o) 21 reasonable wherein section 22651 provides that a car may be impounded by a police officer if it is 22 found on a “highway” with “a registration expiration date in excess of six months before the date 23 is found[.]” Cal. Veh. Code § 22651(o)(1)(A). A “highway” includes a street. Cal. Veh. Code § 24 360 (West 2020). In an unpublished memorandum, the Ninth Circuit found the police were 25 justified in pulling plaintiffs car over for expired registration and impounding it. Hylton v. 26 Towing, 563 F. App’x 570 (9th Cir. 2014). See Crago v. Knacke, No. 2:19-cv-02509 MCE AC, 27 2020 WL 3073771, at *3 (E.D. Cal. June 10, 2020) (the police were justified in impounding 1 plaintiff’s truck that was parked on the street, because its registration had expired more than a year 2 before it was towed, and its smog certificate was outstanding). 3 Despite some unclarity in the law, Miranda appears to be good law. In United States v. 4 Caseres, the government failed to prove that the community caretaking rationale applied after it 5 arrested Mr. Caseres and impounded his car. 533 F.3d 1064, 1075 (9th Cir. 2008). The 6 government was not able to show a justification because his car was legally parked two houses 7 away from his home, so there was little risk his car would be stolen or vandalized. Id. Though 8 Mr. Caseres had been driving on a suspended license, he was taken into custody, so there was no 9 risk that he was going to unlawfully operate his vehicle. Id. In finding that “[t]he rationale of 10 impounding vehicles merely to deter future illegal activity ‘is incompatible with the principles of 11 the community caretaking doctrine” Id. The court quoted Miranda, 429 F.3d at 866. 12 In Cervantes, a police officer pulled a vehicle over for failing to come to a complete stop 13 behind the limit line at an intersection. 703 F.3d at 1138. The vehicle pulled to the curb 14 appropriately. After finding that the driver was driving without a driver’s license and with no 15 registration, the officers decided to impound and search the vehicle. Id. The Ninth Circuit found 16 that the community caretaker exception did not apply because the officer did not provide any 17 testimony that the vehicle was “parked illegally, posed a safety hazard, or was vulnerable to 18 vandalism.” Id. at 1141. The Ninth Circuit stated: “if ‘the government fail[s] to establish a 19 community caretaking function for the impoundment’ then it ‘fail[s] to establish the constitutional 20 reasonableness of the seizure and subsequent inventory search.’” Id. (quoting Caseres, 533 F.3d 21 at 1075). 22 Here, Plaintiffs vehicles have been seized and then crushed on several occasions. Ms. 23 Williams alleges that she previously lived in an RV. FAC, ¶ 68. She was in conversations with 24 the City about moving to a motel, and she understood from her conversations with the City, that if 25 she accepted the motel option, her RV would be stored by the City. Id. Once Ms. Williams 26 accepted a spot at the motel, the City took the keys and title to her RV, towed it away, and 27 destroyed it. Id. Further, during the October 4, 2022 abatement, Plaintiffs allege that “[the City] 1 destroy 29 tents, three shelters, and impound and then crush four vehicles that unhoused residents 2 were relying on for shelter.” FAC, ¶ 142. 3 In the City’s motion, they fail to allege a reason they seized, impounded, and then, in some 4 instances, destroyed Plaintiffs’ vehicles. The City only states that by Plaintiffs own admission, the 5 vehicles were not street legal. Mot. 10. In Plaintiffs’ FAC, they stated:

6 [P]eople attempting to live in their vehicles in Berkeley are at risk of having their vehicles towed or receiving numerous citations that 7 they cannot pay, because their vehicles are considered not “street legal,” lacking proper registration, smog certificates, or being 8 inoperable, as a people living in them often do not have the money to make the necessary repairs, or pay the fines and fees required. 9 FAC, ¶ 101. In the City’s motion to dismiss, they argue that plaintiffs admitted that their cars are 10 not street legal. Plaintiffs do not respond to this in their opposition. From this quote, it is not clear 11 that all Plaintiffs have admitted that their vehicles were “not street legal.” The City has the burden 12 to establish that the taking was warranted on a fact-specific basis, which they have failed to do. 13 See Cervantes, 703 F.3d at 1144 (holding that the community caretaker exception did not apply 14 because nobody “provided any testimony that defendant’s vehicle was parked illegally, posed a 15 safety hazard, or was vulnerable to vandalism or theft.”). Moreover, the City has the burden to 16 prove that the vehicles they impounded were “impeding traffic or threatening public safety and 17 convenience,” Miranda, 429 F.3d at 864, which the City has not shown. Just because Plaintiffs’ 18 cars were parked on a public street and may not have been “street legal” does not implicate that 19 they were “impeding traffic or threatening public safety and convenience.” Id. 20 Even if the City can show that the initial seizure fell under the community caretaking 21 exception because the cars lacked proper registration, there is nothing to suggest that the City was 22 permitted to then “crush” the vehicles, permanently depriving Plaintiffs of their property. See 23 United States v. Jacobsen, 466 U.S. 109, 124 (1984) (“a seizure lawful at its inception can 24 nevertheless violate the Fourth Amendment because its manner of execution unreasonably 25 infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable 26 seizures’”). In Brewster, police stopped a driver who had a suspended license. 859 F.3d at 1195. 27 The police impounded the driver’s car for 30-days, pursuant to California Vehicle Code section 1 14602.6(a)(1), which states that cars impounded due to a suspended license must generally be held 2 in impound for 30-days. Id. Three days later, the driver appeared at a hearing before the Los 3 Angeles Police Department (“LAPD”) with proof that she was the registered owner of the vehicle 4 and her valid driver’s license. Id. However, the LAPD refused to release the vehicle before the 5 30-day holding period had lapsed. Id. The parties agreed that the LAPD could impound the 6 driver’s car under section 14602.6(a)(1) pursuant to the community caretaking exception. Id. at 7 1196. However, “[t]he exigency that justified the seizure vanished once the vehicle arrived in 8 impound and [the driver] showed up with proof of ownership and a valid driver’s license.” Id. 9 “The Fourth Amendment doesn’t become irrelevant once an initial seizure has run its course,” 10 instead, “the government must cease the seizure or secure a new justification.” Id. at 1197 11 (citations omitted). 12 Likewise, in Lavan, as previously discussed, Los Angeles City employees seized and 13 destroyed homeless residents' carts and small, collapsible mobile shelters filled with their personal 14 possessions. 693 F.3d at 1025, n.4. The Ninth Circuit clarified that even if plaintiffs had violated 15 the city ordinance which prohibited leaving unabandoned property unattended on city sidewalks, 16 the subsequent destruction of plaintiffs’ property remained unreasonable. “Violation of a City 17 ordinance does not vitiate the Fourth Amendment’s protection of one’s property. Were it 18 otherwise, the government could seize and destroy any illegally parked car or unlawfully 19 unattended dog without implicating the Fourth Amendment.” Id. at 1029 (emphasis added). 20 Here, the City has failed to proffer a community caretaking rationale for seizing and/or 21 destroying Plaintiffs’ RVs and vehicles as alleged herein. Sandoval, 72 F.Supp.3d at 1007 22 (“[O]nce [a] vehicle has been removed from the street, or the threat to public safety has been 23 removed, the community caretaking exception no longer justifies the warrantless seizure of 24 property”). Plaintiffs have plausibly alleged that their cars were seized and destroyed in violation 25 of the Fourth Amendment. 26 3. Improper Notice 27 The City does not provide Plaintiffs with adequate notice of the seizure of their property, 1 “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. 2 XIV, § 1. In Lavan the Ninth Circuit stated:

3 As we have repeatedly made clear, “[t]he government may not take property like a thief in the night; rather, it must announce its 4 intentions and give the property owner a chance to argue against the taking.” Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th 5 Cir. 2008). … 6 Even if the City had seized Appellees’ possessions in accordance with the Fourth Amendment, which it did not, due process requires 7 law enforcement “to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies 8 for its return.” City of West Covina v. Perkins, 525 U.S. 234, 240, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). 9 693 F.3d at 1031-32 (emphasis added). For example, in Lavan, the Ninth Circuit upheld a district 10 court’s permanent injunction, directing the City to “leave a notice in a prominent place for any 11 property taken on the belief that it is abandoned, including advising where the property is being 12 kept and when it may be claimed by the rightful owner.” Id. at 1026. In Grimm v. City of 13 Portland, the Ninth Circuit stated: 14

Due process requires that individualized notice be given before an 15 illegally parked car is towed unless the state has a “strong justification” for not doing so. Clement v. City of Glendale, 518 16 F.3d 1090, 1094 (9th Cir. 2008). Clement explained that due process “require[s] that notice generally be given before the 17 government may seize property,” and held that failing to give notice before towing an unregistered car that had a planned non-operation 18 (PNO) certification for noncompliance with the PNO certificate was a due process violation. 19 971 F.3d 1060, 1063 (9th Cir. 2020). 20 In Grimm, the City of Portland failed to provide a Portland resident with adequate notice 21 before towing his car. Id. Over the course of seven days, the City of Portland left six citations on 22 Grimm’s illegally parked car and on the seventh day, Portland left a red tow slip on the 23 windshield. Id. at 1062. Then, it towed his car. Id. The red tow slip did not provide sufficient 24 notice because “additional reasonable steps were available to the State” given the circumstances. 25 Id. at 1066. Portland “should have known that notice of the tow through posting on his car had 26 been ineffective when the car was not moved and the parking tickets remained on the car’s 27 1 electronic parking app or could have obtained the car owner’s current information to provide 2 notice given that the car was registered. Id. (citing that Mullane v. Central Hanover Bank & Trust 3 Co., 339 U.S. 306 (1950) governs adequacy of notice requirements). The court stated that “due 4 process requires that individualized notice be given before an illegally parked car is towed unless 5 the state has a ‘strong justification’ for not doing so,” for example, if the car is blocking traffic or 6 is clearly abandoned. Id. at 1063-64. However, “the default rule is advance notice and the state 7 must present a strong justification for departing from the norm.” Id. (quoting Clement, 518 F.3d at 8 1094). 9 Here, Plaintiffs allege many incidents in which the City provided vague eviction and 10 abatement notices and then seized and destroyed their personal property and vehicles. The FAC 11 alleges that the City provides notice of an abatement or eviction on a Friday, with notice that the 12 abatement or eviction will occur on the following Monday or business day. FAC, ¶¶ 141, 149. 13 The City’s practice is to arrive early in the morning with a backhoe to destroy residents’ 14 possessions, without first identifying who is there, whether they have alternative shelter, what 15 property they have, and where it will be stored. Id. ¶ 130. The notices are lengthy, internally 16 contradictory, and are published in small print. Id. ¶ 126. For example, on the first page of the 17 City’s September 1, 2023 notice, the notice states:

18 Please be advised that, as soon as possible, but no sooner than Sept 4, 2023, the City of Berkeley will conduct an emergency abatement 19 due to imminent health hazards at this location based on the extent of violations under BMC sections 11.32.050, 11.32.070, 11.36.030, 20 17.20.030, and 17.20.050. Given the imminent health hazards, the City of Berkeley has determined that this encampment poses an 21 imminent threat for all residents, and the City Manager has ordered immediate abatement of the nuisance, including destruction of any 22 property constituting such a nuisance if the nuisance cannot be abated otherwise. Please take this opportunity to address the 23 nuisance conditions listed below, by discarding garbage and any items creating a rodent harborage or other health hazards, and 24 reduce your belongings to a 9-square-foot footprint by or before Sept 4, 2023. 25 26 Compl. Ex. A at 1, Docket No. 1. The notice then enumerates the Berkeley Municipal Code 27 sections it cited. Then, on page three it states: creating a rodent harborage or other health hazards, and reduce your 1 possessions to a 9-square-foot footprint.

2 The City of Berkeley will discard items you no longer wish to keep at your request. … 3 Finally, on page 4 it states: 4 FAILURE TO COMPLY: 5 Failure to comply may result in the City abating the unsafe and 6 hazardous conditions pursuant to BMC Chapter 11.40. The City prefers not to cite or arrest in order to gain your compliance with 7 this notice. However, absent voluntary compliance, failure to comply may result in citations and/or arrest. 8 Id. at 4. It is reasonable that Plaintiffs would find these notices confusing and would be unsure of 9 how to comply or what to expect. 10 Before the October 3, 2022 Harrison abatement, the City posted notices on September 30, 11 2022 stating that the abatement was authorized for purposes of addressing rodent harborage. 12 FAC, ¶ 141. Residents did not know what they could do to comply and nothing in the notice 13 indicated that residents were being asked to leave, or that their shelters would be removed, much 14 less permanently destroyed. Id. On October 4, 2022, the City and Berkeley Police officers 15 destroyed 29 tents, 3 structures, and 4 cars. Id. ¶ 142 16 On September 1, 2023, the City posted notices for a planned abatement action at the 8th 17 and Harrison Encampment to take place on Labor Day, September 4, 2023. FAC, ¶ 149. One 18 notice was a “Notice of Imminent Health Hazard and Emergency Abatement Beginning Sept. 4, 19 2023.” Id. It stated that by September 4, 2023, individuals must discard debris and reduce their 20 possessions to a 3x3 foot area. Id. It stated that the City could store a limited amount of property 21 but that items left unattended would be discarded. Id. It provided no guidance as to how 22 individuals should mark their 3x3 foot area or designate the items they need to have stored. Id. 23 The notices were posted, not delivered to individuals as required by the Berkeley Municipal Code. 24 Id. ¶ 232. The notices did not identify a defined area to which it applied, and it did not include an 25 enforcement date. Id. Plaintiffs state that the City provided similarly inadequate notices prior to 26 the Adeline evictions in September 2023 and October 2023, and before Harrison abatement on 27 November 7, 2023. Id. ¶ 233. At the November 7, 2023, abatement, City officials bulldozed all of 1 Mr. Spencer’s property, including that property designated in his 3x3 foot square, violating its 2 own policy. Id. ¶ 168. The City destroyed most but not all of the residents’ belongings. Id. ¶¶ 3 169-72, 176. Plaintiffs have sufficiently alleged that the City seizes their personal belongings 4 without adequate notice. See Lavan, 693 F.3d at 1031-32 (“due process requires law enforcement 5 ‘to take reasonable steps to give notice that the property has been taken…’”). 6 With regard to Plaintiffs’ vehicles, Plaintiffs allege that vehicles are taken and destroyed 7 without their receiving notice and “due process requires that individualized notice be given before 8 an illegally parked car is towed unless the state has a ‘strong justification’ for not doing so.” 9 Grimm, 971 F.3d at 1063. The City has stated that it takes Plaintiffs cars because they are not 10 “street legal.” Though a state may be justified in not providing notice to the owner of an 11 abandoned, unregistered car where the lack of registration means there is no way to notify the car 12 owner, Id. at 1064, here, Plaintiffs live in their cars, so this justification for not providing notice 13 does not obtain. There is no reason why individualized notice cannot be delivered in such a 14 context. 15 Additionally, the City did not provide Plaintiffs with notice that it is going to crush and 16 destroy their cars. Plaintiffs should receive notice before a permanent seizure. See Wright, 981 17 F.3d at 729 (“even in cases after the government has lawfully seized property, reasonable notice 18 must be provided prior to a final deprivation”). Therefore, Plaintiffs have plausibly alleged a due 19 process violation. See id. at 728 (“outright failures to even attempt to provide notice violate due 20 process”). 21 D. Plaintiffs Have Sufficiently Pled Most of Their ADA Claims 22 Plaintiffs allege that the City fails to accommodate their disabilities under the Americans 23 with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq. FAC, ¶ 244-61. Title II of the ADA 24 provides that “no qualified individual with a disability shall, by reason of such disability, be 25 excluded from participation in or be denied the benefits of the services, programs, or activities of a 26 public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12312. The 27 public entity may not “directly or through contractual or other arrangements, utilize criteria or 1 impairing accomplishment of the objectives of the public entity’s program with respect to 2 individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(ii). Prohibited forms of disability 3 discrimination include denying individuals with disabilities the opportunity to participate in a 4 program or service, providing an unequal opportunity to participate in the program or service, or 5 providing the entity’s program or service in a way that is not effective in affording the individual 6 with a disability an equal opportunity to obtain the same result as provided to others. 28 C.F.R. § 7 35.130(b)(1). As discussed below, that denial of opportunity can occur be reason of the 8 government’s failure to provide reasonable accommodations. Title II of the ADA requires that 9 public entities “make reasonable modifications in policies, practices, or procedures when the 10 modifications are necessary to avoid discrimination on the basis of disability, unless the public 11 entity can demonstrate that making the modifications would fundamentally alter the nature of the 12 service, program, or activity.” Id. at § 35.130(b)(7)(i). “A disability discrimination claim under 13 Title II of the ADA may be based on ‘one of three theories of liability: disparate treatment, 14 disparate impact, or failure to make a reasonable accommodation.’” Payan, 11 F.4th at 738 15 (quoting Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016)). 16 In Payan, the Ninth Circuit distinguished between a systemic disparate impact claim and 17 an individualized reasonable accommodation claim:

18 Although disparate impact and failure to accommodate are distinct theories of liability, they share some overlap. If a public entity’s 19 practices or procedures deny people with disabilities meaningful access to its programs or services, causing a disparate impact, then 20 the public entity is required to make reasonable modifications to its practices or procedures. Crowder, 81 F.3d at 1485 (citing 28 C.F.R. 21 § 35.130(b)(7)). Thus, although failure to make a reasonable accommodation and disparate impact are two different theories of a 22 Title II claim, a public entity may be required to make reasonable modifications to its facially neutral policies which disparately 23 impact people with disabilities. Id. at 1484–85. 24 The important difference between these two theories is that a 25 reasonable accommodation claim is focused on an accommodation based on an individualized request or need, while a reasonable 26 modification in response to a disparate impact finding is focused on modifying a policy or practice to improve systemic accessibility. 27 Compare McGary, 386 F.3d at 1265–66 (considering reasonable accommodation claim against city over its failure to grant individual nuisance abatement code), and Updike v. Multnomah County, 870 1 F.3d 939, 949–53 (9th Cir. 2017) (considering reasonable accommodation claim against county over its denial of an ASL 2 interpreter and auxiliary aids to individual deaf pretrial detainee), with Crowder, 81 F.3d at 1485–86 (considering 3 reasonable modifications to Hawaii law requiring 120-day quarantine of all dogs entering the state, which was found to have a 4 disparate impact on blind users of guide dogs), and Rodde, 357 F.3d at 995–98 (considering disparate impact claim against county over 5 proposal to close county hospital providing rehabilitation and medical services to people with chronic disabilities). 6 … Systemic barriers call for systemic reasonable modifications. Where 7 a plaintiff challenges a program’s policy or practice of failing to remedy systemic barriers, rather than the individual’s experience 8 with requesting accommodations to address those barriers, this type of claim is more appropriately evaluated under the disparate impact 9 framework than the failure to reasonably accommodate framework. 10 Payan, 11 F.4th at 738-39. In the instant case, Plaintiffs have not alleged disparate impact, but 11 denial of reasonable accommodations. Cf. McMillon v. Hawaii, 261 F.R.D. 536, 544 (D. Haw. 12 2009) (denial of reasonable accommodation may be susceptible to class action where plaintiffs 13 “suffer similar harm from [a defendant’s] failure to accommodate their disabilities.”). 14 To state a prima facie case for a violation of Title II based on failure to provide a 15 reasonable accommodation, a plaintiff must show:

16 (1) [They] “[are] an individual with a disability;” (2) [They] “[are] otherwise qualified to participate in or receive the 17 benefit of some public entity’s services, programs, or activities;” (3) [They] “[were] either excluded from participation in or denied 18 the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;” and 19 (4) “[S]uch exclusion, denial of benefits, or discrimination was by reason of [their] disability.” 20 McGary, 386 F.3d at 1265 (quoting Thompson, 295 F.3d at 895, cert denied, 538 U.S. 921). “A 21 plaintiff need not allege either disparate treatment or disparate impact to state a reasonable 22 accommodation claim.” McGary, 386 F.3d at 1266. Further, reasonable accommodations do not 23 import a “comparative” approach requirement, meaning that there need not be “uneven treatment 24 of similarly situated individuals.” Id. 25 A public entity is only required to provide a reasonable accommodation under the ADA if 26 a disabled person “was either excluded from participation in or denied the benefits of a public 27 entity’s services, programs, or activities…” Payan, 11 F.4th at 737–38. To determine what 1 constitutes a public entity’s services programs, or activities, a court must identify a program’s 2 scope to determine what the “programs do and do not entail and therefore what could be a 3 ‘reasonable modification’ of that program.” Where Do We Go Berkeley, 32 F.4th at 861.6 4 1. Failure to Assist in Moving Personal Property During Evictions/Abatements 5 Plaintiffs assert that the City should help disabled unhoused people move their belongings 6 when the City evicts them. The City contends that the FAC fails to allege that Plaintiffs asked the 7 City for help moving their belongings as an accommodation for their disabilities, so the claim 8 fails. 9 The Plaintiffs cite Cooley v. City of Los Angeles, where the unhoused plaintiff “told LAPD 10 officers that she needed help to carry her property because of her disability and that she lost most 11 of her essential property because her needs were not accommodated.” 2019 WL 3766554 at *5 12 (C.D. Cal. 2019). There, plaintiff’s allegations were sufficient to allege that the City’s practices 13 violated the ADA by unduly burdening people with disabilities. Id. The City claims that the FAC 14 does not allege facts similar to Cooley because the FAC does not allege that Plaintiffs asked for 15 help moving their belongings and were denied; instead, it simply alleges that several plaintiffs are 16 disabled and need help moving their belongings. FAC, ¶¶ 27, 37, 52 (Mr. Jeffords, and Mr. 17 Spencer, Mr. Lee White Jr.). 18 Generally, one may not challenge a rule or policy to which one “has not submitted himself 19 by actually applying for the desired benefit.” Madsen v. Boise State University, 976 F.2d 1220, 20 1220 (9th Cir. 1992). In Madsen, a student’s claim challenging his school’s handicap parking 21 permit was barred because he did not actually apply for a permit. Id. Likewise, in Csutoras v. 22 Paradise High School, a school was not liable for failing to provide a social-related 23 accommodation to a student when “the parties agree[d] [that] a social-related accommodation was 24 never requested or denied.” 12 F.4th 960, 969 (9th Cir. 2021). In the employment context, there 25 6 A disparate impact claim can be used to assert entitlement to relief with respect to a systematic 26 practice. “To assert a disparate impact claim, a plaintiff must allege that a facially neutral government policy or practice has the ‘effect of denying meaningful access to public services’ to 27 people with disabilities.” Payan, 11 F.4th at 738 (quoting K.M., 725 F.3d at 1102). Here, 1 is an exception to this general rule “only when the employer ‘(1) knows that the employee has a 2 disability, (2) knows, or has reason to know, that the employee is experiencing workplace 3 problems because of the disability, and (3) knows, or has reason to know, that the disability 4 prevents the employee from requesting a reasonable accommodation.’” Brown v. Lucky Stores, 5 Inc., 246 F.3d 1182, 1187 (9th Cir. 2001) (abrogated on other grounds) (quoting Barnett v. U.S. 6 Air, Inc., 228 F.3d 1105 (9th Cir. 2000)). 7 The City is correct in its assertion that an ADA claim on this basis generally should be 8 predicated on a request for assistance which is denied. See Madsen, 976 F.3d at 1220. The Ninth 9 Circuit stated that “a plaintiff lacks standing to challenge a rule or policy to which he has not 10 submitted himself by actually applying for the desired benefit.” Madsen, 976 F.3d at 1220. 11 Plaintiffs have not alleged that the City knew that they had physical disabilities and that they 12 needed help moving their belongings. Additionally, the Plaintiffs have not provided any authority 13 that suggests that there is an exception to this general rule in the public accommodation context 14 that applies here. Cf. Brown, 246 F.3d at 1187. Thus, this claim is dismissed with leave to amend 15 on the ground that Plaintiffs have not alleged they requested and were then denied reasonable 16 accommodations in not providing assistance in moving belongings. 17 2. Enforcement of Parking Violations 18 Plaintiffs allege:

19 Defendant’s policies and practices in administering their ordinances and parking programs through threatened ticketing, towing, and 20 removal of vehicles used by unhoused people with disabilities has the effect of discriminating and imposing a disproportionate burden 21 on people with disabilities. Similarly requiring them to surrender their vehicles or other property necessary to accommodate their 22 disabilities as a condition for accessing shelter has the effect of imposing disproportionate burdens on people with disabilities who 23 are more vulnerable to otherwise camping in the elements, and has the effect of screening out people with disabilities or otherwise 24 discriminating against people with disabilities by preventing them from accessing shelter programs. 25 FAC, ¶ 256. 26 In the City’s Motion to Dismiss, it states “the City’s parking enforcement does not 27 discriminate of the basis of disability.” Mot. at 13. The City argues that “Plaintiffs admit that 1 their vehicles are subject to impoundment not due to any alleged disability but because of 2 Plaintiff’s financial difficulties” and cites Plaintiffs’ FAC where Plaintiffs admit that their vehicles 3 are being towed because they are not “street legal.” Id.; FAC, ¶ 101. Finally, the City states that it 4 is “under no obligation to offer accommodations where the barrier to plaintiff’s participation is not 5 disability, but rather financial constraints,” citing Weinreich v. Los Angeles Cnty. Metro. Transp. 6 Auth., 114 F.3d 976, 978 (9th Cir. 1997). 7 In Weinreich, a regional public transit system offered a Reduced Fare Program for elderly 8 and disabled patrons. Id. at 978. For this Reduced Fare Program, disabled program participants 9 were required to update their medical information every three years recertifying that they were 10 disabled. Id. at 978. A disabled patron sought an exemption from the policy because he was 11 indigent and could not afford to pay a private doctor to recertify his disability. Id. After the 12 public transit system denied his request, he filed suit. The Ninth Circuit stated that the duty to 13 provide reasonable accommodations under the ADA arises when a policy discriminates on the 14 basis of disability, not on the basis of an individual’s inability to pay. Id. Thus, the disabled 15 patron was unable to get a reasonable accommodation under the ADA. 16 Here, the City’s enforcement of its 72-hour parking rules effects some Plaintiffs on the 17 basis of their disability and for others on the basis of their inability to pay. Mr. Jeffords has 18 alleged that he needs an accommodation to the City’s parking enforcements because of his 19 disability. The FAC alleges: “Moving vehicles every 3 days to comply with the 72-hour 20 ordinance is not possible for … Mr. Jeffords [who has] health or physical disabilities that make 21 doing so exceedingly difficult. FAC, ¶ 102. Indeed, Mr. Jeffords “has serious respiratory and 22 gastrointestinal issues that have left him very physically weak, and he becomes easily winded, 23 cannot walk long distances, and needs assistance to move his belongings.” Id. ¶¶ 27- 28. Mr. 24 Jeffords needs a reasonable accommodation because he cannot move his vehicle every 72-hours 25 “by reason of” his disability, and thus, his claim is viable. 26 27 1 However, other Plaintiffs such as Ms. Williams,7 Ms. Prado,8 and Ms. Whitson9 claim that 2 they live in their RVs, but they make no claim that they cannot move their car due to their 3 disabilities. Instead, it seems that the City’s parking enforcements are unworkable for them 4 because their cars are not “street legal.” The City is not obligated to accommodate persons who 5 cannot comply with their policies due to financial concerns, pursuant to Weinreich. Thus, these 6 reasonable accommodation requests are denied with respect to Ms. Williams, Ms. Prado, and Ms. 7 Whiston who have not demonstrated they cannot move their RVs every 72-hours due to a 8 disability. The Court gives them leave to amend their claims regarding parking enforcement. 9 3. Outreach 10 Plaintiffs allege that the City’s “outreach and housing navigation services” violate Title II 11 because they fail to “provid[e] additional support in the form of mental health professionals to 12 assist unhoused residents to access those outreach services.” FAC, ¶ 259. Plaintiffs allege that the 13 city has an existing outreach program—its city personnel and members of its Homeless Response 14 Team and that providing mental health workers would be a reasonable accommodation to this 15 program. Opp’n at 11. The City’s only response to this allegation is that “the ADA does not 16 require the City to offer mental health outreach” because “public entities are not required to create 17 new programs” and “the City does not provide mental health services.” Mot. at 15. 18 A public entity is only entitled to provide a reasonable accommodation under the ADA if a 19 disabled person “was either excluded from participation in or denied the benefits of a public 20 entity’s services, programs, or activities…” Payan, 11 F.4th at 737–38. To determine what 21 constitutes a public entity’s services programs, or activities, a court must identify a program’s 22

23 7 Ms. Williams alleges that she cannot live in a tent because it gets too cold and the metal pins in her arm cause her pain, and because she is a survivor of domestic violence and her former partner 24 is actively pursuing her. FAC, ¶¶ 68-69. However, Ms. Williams does not specifically tie these allegations to her need for an accommodation from the City’s parking enforcement policies. 25 8 Ms. Prado alleges that, due to her mental health history, she is unable to use shelters that have no-visitor policies because she relies on her community network for support. FAC, ¶ 25. This 26 allegation is not specifically tied to her need for an accommodation from the City’s parking enforcement policies. 27 9 Ms. Whitson alleges that the constant threat and actuality of negative contacts with the police 1 scope to determine what the “programs do and do not entail and therefore what could be a 2 ‘reasonable modification’ of that program.” Where Do We Go Berkeley, 32 F.4th at 861. 3 Precisely what constitutes the scope of an applicable “program” is less than clear under current 4 Ninth Circuit precedent. In LA Alliance for Human Rights v. County of Los Angeles, the court 5 defined the “program” broadly: “Skid Row area sidewalks are a service, program, or activity of 6 the City within the meaning of Title II of the ADA.” 14 F.4th 947, 959 (9th Cir. 2021). In 7 contrast, in Where Do We Go Berkeley, the court narrowly defined what constitutes a “program.” 8 32 F.4th at 861. In that case, Caltrans created an Interim Guidance instructing Caltrans how to 9 assess the risks posed by homeless encampments and how to prioritize clearing them. Id. at 855. 10 Encampments were assigned priority levels based on their level of threat to public safety. Id. The 11 Ninth Circuit narrowly defined the “program” as clearing “level 1” (i.e., high risk encampments) 12 classification of CalTrans property with “72 hours’ notice before clearing and possible 13 coordination with local partners.” Id. at 862. However, because Caltrans Interim Guidance did 14 not “provide social services or relocation assistance,” those services could not have constituted 15 part of its program. Id. at 861. Thus, LA Alliance for Human Rights v. County of Los Angeles can 16 be contrasted to the Caltrans level 1 clearance program because the public streets of a municipality 17 perform broad functions, so the scope of a sidewalk-related program is much broader. 14 F.4th at 18 959. Thus, “[t]o determine if the modification fundamentally alters the program, the court should 19 consider if it changes the ‘essential nature’ of the program. This includes how the modification 20 impacts the goals of the program and if it hinders addressing public risks the program targets.” 21 Boyd v. City of San Rafael, 2023 WL 6960368, at *24 (N.D. Cal 2023) (citing Reed v. City of 22 Emeryville, 568 F.Supp.3d 1029, 1043 (N.D. Cal. 2021); Where Do We Go Berkeley, 32 F.4th at 23 862). 24 Plaintiffs have alleged that the City has a homeless outreach program that goes to 25 encampments to discuss abatements and evictions. FAC, ¶ 147 (“the City had held community 26 meetings with Harrison Street encampment residents, during which the City’s Homeless Response 27 Team leader Peter Radu …”); ¶ 136 n.6 (“…Peter Radu, assistant to Berkeley’s city manager and 1 Response Team] has few than 10 vacancies to work with across the entire shelter system…”); ¶ 2 148 (“During these months of outreach, representatives of the City communicated with 3 encampment residents alluding to an approaching eviction…”). Indeed, the City has a homeless 4 outreach program, whose goal it is to provide outreach to encampment residents regarding 5 evictions and abatements. 6 The City argues that “the ADA does not require the City to offer mental health outreach” 7 because “public entities are not required to create new programs” and “the City does not provide 8 mental health services.” Mot. at 15. However, Plaintiffs are not asking the City to create a new 9 mental health services program—they are asking for a modification to the City’s existing homeless 10 outreach program, by adding mental health professionals to the outreach team. On its face, the 11 Plaintiffs have plausibly alleged they are being excluded from participation in an existing program 12 – a “program” within the meaning of the ADA – that is directed at serving unhoused individuals 13 such as themselves; they allege it would be a reasonable accommodation for the City’s homeless 14 outreach program to include mental health workers.10 There is no showing at this juncture that 15 this would effect a fundamental alteration of the program. 16 4. Offers of Shelter 17 Plaintiffs allege that architectural barriers in the shelters severely limits the availability of 18 shelter for individuals with mobility disabilities and the shelter program policies pose difficulties 19 for some residents with disabilities. FAC, ¶ 199. In particular, Mr. White Jr., Ms. Williams, Ms. 20 Prado, Mr. Spencer, and Mr. Jeffords want to have visitors in their rooms. For example, Ms. 21 Williams has stated that seeing her friends and family helps her to mitigate her PTSD symptoms. 22 Ms. Prado alleges that she cannot stay in a shelter because of the no-visitor policies because her 23 community is critical to mental health. Id. ¶ 25. Mr. Jeffords wants visitors because he relies on 24 the support of his neighbors “to watch out for him and check on him with his health issues.” Id. ¶ 25 30. Mr. Spencer wants to have visitors in his room because “he relies on his community for social 26 10 The City only argues that it is not required to provide mental health outreach; it does not address 27 whether Plaintiff’s requested accommodation is a reasonable accommodation. Thus, this 1 and emotional support; without this support, he would go back to his trauma response and feel 2 lost.” Id. at ¶ 40. These Plaintiffs have not connected their specific disabilities to the need to have 3 visitors in their rooms. It is not evident why many if not most of these Plaintiffs could not visit 4 friends and family outside of their rooms in order to fulfill their social needs, except for Mr. White 5 Jr. as discussed below. Thus, these Plaintiffs have not demonstrated the no-visitor policy denies 6 them access to services.11 7 For Mr. White Jr., he has significant physical disabilities and requires assistance with tasks 8 such as cleaning and caring for himself. Id. ¶ 208. Currently, he relies on friends and neighbors to 9 help him with these tasks. He has essentially alleged a need to have visitors in his room on 10 occasion because of his disability. The City argues that the request to modify the shelters’ “no 11 visitor” policy is invalid because “their need for community is [not] a qualifying disability.” Mot. 12 15. The issue is whether the denial of visitors as stated in the shelters’ rules denies meaningful 13 access to shelters by those with disabilities. To state a prima facie case for a violation of Title II, a 14 plaintiff must show:

15 (1) [They] “[are] an individual with a disability;” (2) [they] “[are] otherwise qualified to participate in or receive the benefit of some 16 public entity’s services, programs, or activities;” (3) [they] “[were] either excluded from participation in or denied the benefits of the 17 public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such exclusion, 18 denial of benefits, or discrimination was by reason of [their] disability.” 19 McGary, 386 F.3d at 1265 (quoting Thompson, 295 F.3d at 895, cert denied, 538 U.S. 921). 20 Plaintiffs allege that those with mental health disabilities, such as OCD, anxiety, and PTSD 21 especially need to see friends and family for emotional support and that the denial of visiting 22 privileges makes the shelter inaccessible because the bar on visitors creates an intolerable 23 condition. FAC, ¶¶ 44, 70. To establish the need for an accommodation to the shelters’ no- 24

25 11 Additionally, the City contends that the “Plaintiffs’ allegations regarding the City’s offers of shelter show why this claim also fails as a matter of law” and then lists that several Plaintiffs 26 admit they currently reside in housing provided by the City, they do not claim to have been denied housing, they failed to claim any disability-related reason why they were unable to stay in housing 27 provided by the City, or they do not allege that the City failed to offer them an ADA accessible 1 visitors policy under the ADA, each plaintiff challenging the policy must show that they have a 2 disability that is specifically linked to their need to have visitors in their room. Logan v. 3 Matveevskii, 57 F.Supp.3d 234, 256 (S.D.N.Y. 2014) (citations omitted) (“Ordinarily the duty to 4 make reasonable accommodations is framed by the nature of the particular handicap.”); Sanzaro v. 5 Ardiente Homeowners Association, LLC, 364 F.Supp.3d 1158, 1178 (D. Nev. 2019) (discussing a 6 “clear nexus” between plaintiff’s disability and the requested accommodation). Further, that 7 plaintiff needs to show that their need for an accommodation to the no-visitors policy is 8 reasonable, which “depends on the individual circumstances of each case, and requires a fact- 9 specific, individualized analysis of the disabled individual’s circumstances and the 10 accommodation that might allow him to enjoy meaningful access to the program.” Wyatt B. by 11 McAllister v. Brown, 2021 WL 4434011, at *12 (D. Or. 2021) (quoting Mark H., 620 F.3d at 12 1098). 13 Typically, the plaintiff has the burden of producing evidence that a reasonable 14 accommodation was possible, Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (a public 15 employment case), and “seems reasonable on its face,” Dark v. Curry County, 451 F.3d 1078, 16 1088 (9th Cir. 2006) (an employment case). Thereafter, the burden of proof shifts to the 17 defendants to produce rebuttal evidence that the requested accommodation was not reasonable. 18 Vinson, 288 F.3d at 1154. In that regard, a public entity “does not have to provide a disabled 19 individual with every accommodation he requests or the accommodation of his choice.” Logan, 20 57 F.Supp.3d at 256. Rather, “there is no requirement to take into account the disabled 21 individual’s preferences in choosing his accommodation, so long as the means chosen were 22 reasonable accommodations.” Resnick v. 392 Central Park West Condominium, 2007 WL 23 2375750, at *2 (S.D.N.Y. 2007) (providing plaintiff with an alternative entrance to the 24 condominium that took her on an alternative route around the problematic speed bump was 25 sufficient; defendants did not need to remove the speed bump altogether) (citing Fink v. New York 26 City Dep’t of Pers., 855 F.Supp. 68, 72 (S.D.N.Y. 1994), aff’d, 54 F.3d 565 (1995). In short, the 27 defendant has an opportunity to demonstrate that the requested accommodation is not reasonable. 1 fundamental alteration to the nature of the services provided by the city. In Reed, unhoused 2 persons challenged the City of Emeryville’s homelessness outreach program, stating that it was 3 inaccessible and that they needed several reasonable accommodations, like single room shelter 4 beds, more frequent appointment reminders, and additional time to complete tasks. 568 F.Supp.3d 5 at 1042. The court there noted that, though the ADA does not require public entities to 6 fundamentally alter the nature of the services they provide to accommodate people with 7 disabilities, “what possible accommodations are reasonable and would not ‘fundamentally alter’ 8 the nature of the services provided by [the City of Emeryville] is highly fact-specific and cannot 9 be resolved at the motion to dismiss stage.” Id. at 1044 (citing Crowder, 81 F.3d at 1486). For 10 example, “while provision of single-bed shelter rooms might (on a factual record) be a 11 fundamental alteration of the City’s program that is not required, provision of quieter spaces or 12 areas otherwise separated from the larger congregate setting within an existing shelter arrangement 13 might be a reasonable accommodation.” Id. Thus, the court denied the City of Emeryville’s 14 motion to dismiss the ADA claims, concluding that whether plaintiffs’ requests were fundamental 15 alterations to the city’s programs could not be made based on the pleadings alone. Id. 16 Here, as previously discussed, Plaintiff Mr. Rufus White Jr. has tied his specific disabilities 17 to his need for in-room visitors and have thus established a denial of access to services absent a 18 reasonable accommodation. The burden of proof thus shifts to the Defendants to produce rebuttal 19 evidence that the requested accommodation is not reasonable. Vinson, 288 F.3d at 1154. 20 Defendants failed to demonstrate Mr. White’s request would as a matter of law fundamentally 21 alter the nature of the shelter or otherwise be unreasonable, particularly since his need is limited to 22 occasional visits which the Defendant could regulate. See Reed, 568 F.Supp.3d at 1044 (“what 23 possible accommodations are reasonable and would not ‘fundamentally alter’ the nature of the 24 services provided by [the defendant] is highly fact-specific and cannot be resolved at the motion to 25 dismiss stage.”). 26 However, Mr. White Jr. does not have standing to bring this claim, because he is currently 27 not in shelter; he lives in a tent. FAC, ¶ 51. Mr. White Jr. lived in congregate shelter but did not 1 not want to go back to a congregate shelter.” Id. He would live to move into a motel room. Id. ¶ 2 57. In September 2023 a City outreach worker verbally offered him shelter, but never followed up 3 with him. Id. When Mr. White Jr. followed up with the City, the City said there were “no open 4 ADA rooms” and he would need to wait until one became available. Id. “The standard for injury 5 in fact is whether [the plaintiff] has encountered at least one barrier that interfered with her access 6 to the particular public facility and whether she intends to return or is deterred from returning to 7 that facility.” Kirola v. City and County of San Francisco, 860 F.3d 1164, 1175 (9th Cir. 2017). 8 Here, Mr. White Jr. has not alleged that he has encountered a no-visitor policy, so he has not 9 suffered an injury and thus does not have standing to pursue this point. 10 5. Waiver – The Rest of Plaintiff’s ADA claims 11 Plaintiffs allege several more ADA claims which the City fails to address in its motion. 12 First, Plaintiffs contend that they should be able to lock their doors,12 have second emotional 13 support animals,13 get support understanding the shelters rules,14 be given more time after a notice 14 is posted to comply with the notice due to their mobility disabilities,15 and receive ADA accessible 15 accommodations when shelters have architectural barriers.16 The City does not address these 16 claims, so the Court need not address the merits of these specific ADA claims in the instant 17 motion to dismiss. 18 19

20 12 Mr. Spencer does not feel comfortable or safe living in an enclosed environment where he does not have control over who comes into his space. FAC, ¶ 40. Ms. Williams states that the lack of 21 privacy at her motel makes her feel like her possessions are unsafe. Id. ¶ 71. The staff members knock and immediately enter without waiting for a response which triggers her PTSD. Id. 22

13 Mr. Jeffords would like to have a second emotional support animal as a reasonable 23 accommodation. FAC, ¶ 29.

24 14 Ms. Williams has a hard time understanding and remembering the rules of the program due to her mental health issues and short-term memory loss. FAC, ¶ 70. 25

15 “The [City’s] practice of posting unclear and inconsistent notices just days before a planned 26 abatement or closure also fails to allow residents with disabilities time to prepare for such closures…” FAC, ¶ 176. 27 1 E. Plaintiffs Have Sufficiently Pled a Claim Under the FHAA For Reasonable 2 Accommodations 3 The Plaintiffs allege that the City “has discriminated against Plaintiffs … by refusing to 4 make accommodations to the rules, policies, practices and services of its shelters that are 5 necessary to afford Plaintiffs … an equal opportunity to fully use and enjoy the shelters.” FAC, ¶ 6 279. The FHAA makes it unlawful to “discriminate in . . . the provision of services or facilities in 7 connection with . . . a dwelling” because of an individual’s disability. 42 U.S.C. § 3604(f)(2)(A). 8 Disability discrimination under the FHAA includes a refusal to “make reasonable 9 accommodations in rules, policies, practices, or services, when such accommodations may be 10 necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 11 3604(f)(3)(B); 24 C.F.R. § 100.204(a). “It is well-settled that 42 U.S.C. § 3604(f)(3)(B) imposes 12 an ‘affirmative duty’ on public agencies to reasonably accommodate disabled individuals by 13 modifying administrative rules and policies.” McGary, 386 F.3d at 1264. 14 Plaintiffs and the City disagree about which test applies in this context. The City says that 15 the Court should apply the burden shifting test from McDonnell Douglas and relied on Cmty. 16 House Inc. v. City of Boise, 490 F.3d 1041, 1047 n.1 (9th Cir. 2007) for its assertion. In that case, 17 the McDonnel Douglas test was appropriate for the plaintiffs’ disparate treatment claims. Id. at 18 1053. Under the McDonnel Douglas test, the plaintiffs must first establish a prima facie case of 19 discrimination with regard to their disability discrimination claims. Id. To establish such a prima 20 facie case, the plaintiffs must show:

21 (1) That they are members of a protected class; (2) That applied to and were qualified for shelter at [the defendant’s 22 shelter]; (3) That they were rejected; 23 (4) That openings at the shelter remained available. 24 Id. 25 In opposition, the Plaintiffs cite to a Ninth Circuit case in arguing that the reasonable 26 accommodation analysis should apply here:

27 “[I]n order to a state a discrimination claim under the FHAA for “knew or reasonably should have known of” plaintiff’s handicap; (3) 1 “accommodation of the handicap ‘may be necessary’ to afford [plaintiff] an equal opportunity to use and enjoy [their] dwelling;” 2 and (4) the City “refused to make such accommodation.” 3 McGary, 386 F.3d at 1262 (quoting Giebeler, 343 F.3d at 1147) (emphasis added). 4 The Court agrees that the test in McGary and Giebeler apply because Plaintiffs have 5 asserted a reasonable accommodation theory which is cognizable under the FHAA. They do not 6 assert a disparate treatment claim which embodies a distinct and different mode of analysis. Cf. 7 Dunlap v. Liberty Natural Products, Inc., 878 F.3d 794, 798 (“We have recognized that a failure- 8 to-accommodate claim ‘is analytically distinct from a claim of disparate treatment or impact under 9 the ADA.’”). That test is specific to a reasonable accommodation claim, whereas the McDonnel 10 Douglas test applies broadly to disparate treatment claims.17 Here, for the reasons stated above, 11 Plaintiffs have stated some reasonable accommodation claims. Giebeler v. M & B Associates, 343 12 F.3d 1143, 1149 (9th Cir. 2003) (“We therefore look to both RA and ADA interpretations of 13 ‘accommodation’ of disabled individuals as indicative of the scope of ‘accommodation’ under the 14 FHAA.). 15 F. The Martin Claim under the Eighth Amendment has been dismissed. 16 Following the Supreme Court’s decision in City of Grants Pass v. Johnson, 603 U.S. ___, 17 144 S. Ct. 2202 (2024), the parties stipulated to the dismissal of the Eighth Amendment claim. 18 Docket No. 85. 19 G. Plaintiffs Have Adequately Alleged that the City Exposed Them to a State-Created Danger 20 Plaintiffs allege that the City has exposed them to a state-created danger in violation of the 21 Fourteenth Amendment pursuant to 42 U.S.C. § 1983. FAC, p. 77-78. The City contends that 22 there are three ways that the City purportedly places Plaintiffs in danger—it fails to offer adequate 23 shelter, to store Plaintiffs’ survival gear, and to designate a sanctioned area for Plaintiffs to camp. 24 Mot. 20. However, Plaintiffs have also alleged that the City places them in danger when it 25 destroys their personal belongings except those that fit in a 3x3 foot space, which deprives them of 26 17 The City’s only argument here is that the plaintiff’s FHAA claim fails because, under prong 27 four of the McDonnell Douglas test, “that openings at the shelter remain available,” plaintiffs have 1 survival gear such as tents, blankets, waterproof materials, medications, eyeglasses, wheelchairs, 2 walkers, and canes. FAC, ¶ 289. This has been done “both in the pouring rain and in extreme 3 heat.” Id. ¶ 236. Many of the disabled Plaintiffs cannot get new supplies because they are 4 physically unable to do so and they “los[e] documents necessary to being housed [which] can 5 mean months of delays to replace them which can have major health impacts including overdose 6 and death.” Id. ¶ 138. Further, the City breaks up encampment-communities in which disabled 7 Plaintiffs rely on each other for support and it does not provide any sanctioned space in the City 8 for Plaintiffs to go. Id. ¶¶ 287-95. 9 The Ninth Circuit recognizes a substantive due process violation under the Fourteenth 10 Amendment where a state actor “affirmatively place[s] an individual in danger by acting with 11 deliberate indifference to [a] known or obvious danger in subjecting the plaintiff to it.” Kennedy 12 v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006). The Ninth Circuit stated:

13 In examining whether an officer affirmatively places an individual in danger, we do not look solely to the agency of the individual, nor 14 do we rest our opinion on what options may or may not have been available to the individual. Instead, we examine whether the officer[ 15 ] left the person in a situation that was more dangerous than the one in which they found him. 16 Id. (quoting Munger v. City of Glasgow, 227 F.3d 1082, 1086 (9th Cir. 2000). Deliberate 17 indifference exists where the defendant “disregard[s] a known or obvious consequence of [its] 18 action.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011). There are two prongs to 19 exemplify this: (1) official (state) action that affirmatively placed an individual in danger; and (2) 20 deliberate indifference to that danger with which the plaintiff has a clearly established right. 21 Kennedy, 439 F.3d at 1061, 1065; see Sanchez v. City of Fresno, 914 F.Supp.2d 1079, 1102 (E.D. 22 Cal. 2012). 23 The Ninth Circuit has found a due process violation under the state-created danger theory 24 in a number of contexts where the defendant makes conditions worse for the plaintiff, even where 25 exposure to harm already existed. See Martinez v. City of Clovis, 943 F.3d 1260, 1272 (9th Cir. 26 2019) (finding state-created danger where officer provoked abuser which led to another instance 27 of domestic violence). The Ninth Circuit has not limited the application of the doctrine to conduct 1 of individual state actors. The court has recognized that a state-created danger claim may rest on a 2 city-wide policy. 3 In Sanchez, the City of Fresno placed unhoused plaintiffs in a state-created danger when it 4 “planned, directed, and implemented the demolition” of the unhoused Plaintiffs’ shelters and their 5 contents without providing adequate notice of its intent to seize and destroy Plaintiff’s property, 6 nor any means of retrieving the seized property. 914 F. Supp. 2d at 1093. In that case, Plaintiffs 7 alleged that Defendants knew that Plaintiffs “had no alternative shelter or means of protection 8 from the elements nor any other means of keeping their personal property safe, and that no safe 9 shelter was available to Plaintiff,” though the Plaintiff had temporarily left his shelter at the time 10 his property was destroyed. Id. The court denied the City’s motion to dismiss with respect to the 11 state-created danger claim, and stated:

12 It is alleged that Defendants timed the demolitions of “plaintiff’s shelter and property essential to protection from the elements” to 13 occur at “the onset of the winter months that would bring cold and freezing temperatures, rain, and other difficult physical conditions.” 14 It is further alleged that “Defendants kn[ew] or should reasonably [have known] that their conduct threatened plaintiff’s continued 15 survival, but nonetheless continued their conduct in a manner that has created substantial risk to [Plaintiff’s] ability to continue to 16 survive and is shocking to the conscience ...”

17 Id. at 1102 (citations omitted). 18 Likewise, in Boyd, this Court found there was sufficient evidence for injunctive relief of a 19 city ordinance that would separate encampments—effectively imposing a requirement that 20 unhoused individuals would live in one or two person clusters, at least 200 feet from one another. 21 Boyd, 2023 WL 6960368, at *1. This ordinance would have “destabilize[d] the communal 22 frameworks on which individuals rely for survival” and would have placed Plaintiffs “in danger of 23 sexual and domestic violence, victimization as to crime, death due to drug overdose, and inability 24 to access food, water, and shelter” especially given that a large portion of the plaintiffs had 25 physical disabilities. Id. at *21. Thus, district courts have recognized that the clearing of 26 homeless encampments may present a state-created danger claim when residents are exposed to 27 increased risk of significant harm due to its clearing. See also Santa Cruz Homeless Union v. 1 Bernal, 514 F. Supp. 3d 1136, 1144-45 (N.D. Cal. 2021) (granting a preliminary injunction when 2 the City sought to disperse an encampment during the plight of the COVID-19 pandemic when the 3 encampment had access to medical services, showers, handwashing stations, and donations and 4 while the CDC recommended that unhoused persons stay put during the pandemic to prevent the 5 spread of Covid.); see also Jeremiah v. Sutter County, 2018 WL 1367541 (E.D. Cal. 2018) 6 (granting a temporary restraining order preventing the County from seizing Plaintiffs’ shelters and 7 possessions which the County knew or should have known that Plaintiffs relied on to stay 8 physically safe from the elements, especially at the onset of winter.); cf. Cobine v. City of Eureka, 9 250 F. Supp. 3d 423, 433 (N.D. Cal. 2017) (citing Sanchez, 914 F.Supp.2d at 1093) (“In the 10 absence of particular allegations that the state action put the Plaintiffs in an inherently dangerous 11 situation, the Court is bound to find that the generalized dangers of living on the street preexisted 12 Plaintiffs’ relocation from the [encampment]. … Without allegations of intentional eviction during 13 precarious weather or facts indicating deliberate indifference to the safety and welfare of the 14 population, the court must dismiss the claim.”); but see Reed, 568 F.Supp.3d at 1029 (denying the 15 state-created danger claim because plaintiffs failed to allege that the circumstances of the 16 abatement action made their safety any worse); but see Young v. City of Los Angeles, 2020 WL 17 616363 at *7 (C.D. Cal. Feb. 10, 2020) (denying the state-created danger claim because plaintiffs 18 failed to allege that the City’s actions “exposed Plaintiff to a danger which he would not have 19 otherwise faced if he were not forced to move.”). 20 Here, several of the Plaintiffs have plausibly pled a state-created danger claim. With 21 respect to Mr. Spencer, Mr. Rufus White Jr., Mr. “Cat” White, and Ms. Williams each have pled 22 that the City has seized and destroyed their personal property.18 Plaintiffs allege that the City 23 destroys their personal property, including “tents, bedding, jackets, medications, and mobility 24 devices.” FAC, ¶ 2. 25 For Mr. Spencer, the FAC alleges:

26 In about 2015, Mr. Spencer built a shelter under the Gilman freeway 27 exit. Then state authorities destroyed all his belongings, forcing him 1 to move from that location, and he built another shelter on the island across from the exit. At Gilman, his shelter and belongings were 2 destroyed again, and again by Caltrans and City authorities, depending on Mr. Spencer’s exact position. Mr. Spencer then 3 relocated across from the Seabreeze encampment, near the University Avenue freeway exit, and built a new shelter. Then he 4 came over to 8th and Harrison, had his belongings taken by the City again, and moved back to Seabreeze. He lived there for about two 5 and a half years. When the Seabreeze encampment was closed, he lost everything. He then moved to near the Ashby freeway exit for 6 about a year, was evicted, moved to 2nd and Page, back briefly to Seabreeze, and then finally moved back to 8th and Harrison. He has 7 been living at that location for a little over a year. 8 Id. ¶ 32. On November 7, 2023, at the beginning of an abatement procedure, Mr. Spencer was 9 actively trying to leave the area with a cart containing many of his belongings when he was 10 surrounded by at least five officers. Id. ¶ 166. They grabbed him and handcuffed him, allegedly 11 despite the fact that he was crying out in pain and telling them he had a shoulder disability and 12 was stating he would not resist arrest. Id. They arrested him and bulldozed his belongings 13 including his property designated in a 3x3 foot square, per the City’s own policy. Id. ¶¶ 167-68. 14 For Mr. Rufus White Jr., at the October 4, 2022, abatement action, the City threw away 15 Mr. Rufus White Jr.’s tent and nearly all his belongings. FAC ¶ 54. They offered him a two- 16 person tent, but he cannot access a two-person tent because his mobility disability prevents him 17 from being able to get into the tent. Id. ¶ 144. As a result, he was left with nothing but his 18 wheelchair – he did not even have pants. He spent the next several nights completely without 19 shelter. Id. The City has destroyed Plaintiff Mr. Rufus White Jr.’s tent and personal belongings 20 four times. Id. ¶ 53. Here, the City did not have a warrant and it did not identify that Mr. Rufus 21 White Jr.’s property was a public safety and/or health risk or was abandoned. The City took and 22 destroyed Mr. Rufus White Jr.’s property without providing him the opportunity to reclaim it 23 before it was destroyed. 24 For Mr. “Cat” White, after one of the sweeps, he moved to the Berkeley Inn for 28 days, 25 but was told to leave the program because he had no income. FAC, ¶ 61. But during the sweep, 26 the City had taken and destroyed his camp, tent, and all of his other survival gear. Id. The City 27 gave him a two-person tent but never advised him where in Berkeley he could safely or legally 1 FAC does not specify how many) and the City has never stored his belongings. Id. ¶¶ 59, 64. 2 For Ms. Williams, she previously lived in an RV. FAC, ¶ 68. When she was in 3 conversations with the City about moving to a motel, she understood that if she accepted the motel 4 option, her RV would be stored by the City. Id. Once Ms. Williams accepted a spot at the motel, 5 the City took the keys and title to her RV, towed it away, and destroyed it. Id. Ms. Williams 6 alleged that this “destroy[ed] [her] only source of permanent safe shelter.” Id. ¶ 68. She “cannot 7 live in a tent due to her disabilities because it gets too cold and the metal pins in her arm cause her 8 pain.” Id. In addition, she cannot live in a tent because she is a survivor of domestic violence. Id. 9 ¶ 73. Her abuser is actively pursuing her, and he has tried to kill her several times in the past. Id. 10 The program at the motel does not accommodate her disabilities but she essentially cannot leave 11 the motel because she cannot safely live on the street and her RV has been crushed. Id. ¶ 70-71. 12 When Plaintiffs’ shelter and personal belongings are destroyed, and they have no safe 13 shelter alternative nor means to protect themselves from the elements, the state has made plaintiffs 14 conditions worse. See Martinez, 943 F.3d at 1272. This case is similar to Sanchez, in which the 15 City of Fresno placed unhoused plaintiffs in a state-created danger when it “planned, directed, and 16 implemented the demolition” of the unhoused Plaintiffs’ shelters and their contents without 17 providing adequate notice of its intent to seize and destroy Plaintiff’s property, nor any means of 18 retrieving the seized property. 914 F. Supp. 2d at 1093 (denying the City’s motion to dismiss 19 plaintiffs’ state-created danger claim). 20 The City argues that Plaintiffs cannot establish that the City is acting with “deliberate 21 indifference” because “Plaintiffs admit that the City has offered them shelter,” and this mitigated 22 any potential exposure to the elements. Mot. at 20; see Sanchez, 914 F.Supp.2d at 1093 (there 23 was a state-created danger where the state knew that Plaintiffs “had no alternative shelter or means 24 of protection from the elements nor any other means of keeping their personal property safe, and 25 that no safe shelter was available to Plaintiff” and destroyed their property anyway, leaving them 26 exposed to the elements.). For Mr. Spencer, he has been offered a place at the Campus Motel 27 temporary shelter program, but the restrictive policies, including the prohibition on visitors, 1 him given his mental health needs. FAC, ¶ 40. The Court previously found that the City did not 2 oppose Plaintiff’s arguments that some of them, including Mr. Spencer, require privacy in shelters 3 as a reasonable accommodation under the ADA. See IV.D.5. Therefore, the City waived any 4 argument regarding Plaintiff’s claims for a need for privacy accommodation. Because the Court 5 must take Plaintiffs’ allegations as true at the pleading stage, the Court cannot find that the City 6 has provided Mr. Spencer with an accessible offer of shelter to prevent his exposure to the 7 elements. For Mr. White Jr., he was verbally offered shelter, but when he followed up with the 8 City, he was told it could not provide him with shelter at that time because there were “no open 9 ADA rooms.” Id. ¶ 57. For Mr. “Cat” White, he was housed via a voucher he received from 10 Insight Housing. Id. ¶ 63. However, when he went out of town for a week and a half, he was 11 “illegally locked out of his apartment.” Id. He was unable to connect with his caseworker and set 12 up a tent outside. Id. Thus, these Plaintiffs have not been offered adequate shelter as an 13 alternative to exposure to the elements without protection. When the City destroys their property, 14 they are left with “no alternative shelter or means of protection from the elements nor any other 15 means of keeping their personal property safe.” Sanchez, 914 F.Supp.2d at 1093. 16 The City claims that Plaintiffs have not adequately alleged that the City is deliberately 17 indifferent because the City provides notice before abatements and evictions. While it is true that 18 in Sanchez, the state did not provide plaintiffs with any notice before seizing their belongings, it is 19 not clear that notice alone can avert placing the unhoused in a position of danger when their 20 personal shelter property is taken and destroyed if they do not have a way to avert such seizure and 21 destruction. 22 Here, as discussed above, there is a factual question about the adequacy of the notices. 23 There are allegations in the FAC that the City is aware that its sweeps are conducted with vague 24 notice and in such a way that brutally destroys Plaintiffs’ shelter. After the October 2022 sweep, 25 the City apologized for the harm it caused but continued to impose the same harm in subsequent 26 sweeps. FAC, ¶ 25. After the October 2022 sweep, Mr. Radu, the assistant City Manager, 27 “admitted [on behalf of the City] to being ‘overhanded’ in its methods, providing vague and 1 evictions and abatements have continued to occur since then. In Sanchez, the court found it 2 sufficient that “Defendants kn[ew] or should reasonably [have known] that their conduct 3 threatened plaintiff’s continued survival, but nonetheless continued their conduct in a manner that 4 has created substantial risk to [Plaintiff’s] ability to continue to survive and is shocking to the 5 conscience ...” 914 F.Supp.2d at 1102 (citations omitted). Here, the FAC essentially alleges that 6 the City knew or reasonably should have known that destroying Plaintiffs’ survival gear such as 7 tents, blankets, waterproof materials, medications, eyeglasses, wheelchairs, walkers, and canes, 8 FAC, ¶ 289, would create substantial risk to Plaintiff’s ability to continue to survive. These 9 evictions and abatements have “created substantial risk to [Plaintiff’s] ability to continue to 10 survive” and therefore Mr. Spencer, Mr. Rufus White Jr., and Mr. “Cat” White have adequately 11 pled a state-created danger. Sanchez, 914 F.Supp.2d at 1102. 12 H. Plaintiff’s State Law Claims Are Not Dismissed 13 The City contends in a two-sentence paragraph that the Court should dismiss the state law 14 claims because the Court should dismiss the federal claims, and therefore the Court no longer has 15 supplemental jurisdiction over the state law claims. Pristavec v. Meno Holdings SPV, LP, 593 16 F.Supp.3d 930 (N.D. Cal. 2022). However, Plaintiffs have plausibly alleged multiple federal 17 causes of action, so it retains supplemental jurisdiction over the state law claims. The state law 18 causes of action are, therefore, not dismissed at this time. 19 V. CONCLUSION 20 The Court GRANTS in part and DENIES in part the Motion to Dismiss as follows: The 21 Court DENIES striking events in the FAC that occurred after September 4, 2023. The Court 22 DENIES dismissal based on organizational standing. The Court DENIES dismissal based on 23 Fourth and Fourteenth Amendment violations. 24 The Court rules on the ADA claims as follows: it GRANTS dismissal with leave to amend 25 the claim that the City failed to assist moving Plaintiffs’ personal property during evictions and 26 abatements. It DENIES dismissal of Mr. Jefford’s request for reasonable accommodation of the 27 72-hour parking ordinance, and GRANTS dismissal of Ms. Williams, Ms. Prado, and Ms. 1 reasonable accommodation for the City’s homeless program to include mental health workers. It 2 GRANTS dismissal of Plaintiffs’ request for a reasonable accommodation in the offers of shelter. 3 The Court DENIES dismissal based on the FHAA claim. The Court has already granted 4 stipulated dismissal of the Eighth Amendment Claim. The Court DENIES dismissal based on 5 Fourteenth Amendment state created danger. The Court DENIES dismissal of the state law 6 claims. 7 Plaintiffs have 30 days from the date of this order to file an amended complaint. 8 A further case management conference is set for August 27, 2024. 9 10 IT IS SO ORDERED. 11 12 Dated: August 6, 2024 13 14 ______________________________________ EDWARD M. CHEN 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27