Roe v. City and County of San Francisco

Opinion

1 2 3 6 7 JANE ROE, et al., Case No. 24-cv-01562-JST

8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS FRANCISCO, Re: ECF No. 51 11 Defendant.

12 13 Before the Court is Defendant the City and County of San Francisco’s (“the City”) motion 14 to dismiss. ECF No. 51. The Court will grant the motion in part and deny it in part. 16 Plaintiffs are residents and businesses in the Tenderloin neighborhood in San Francisco. 17 ECF No. 50 ¶ 6. Plaintiffs allege that the City treats the Tenderloin as a “containment zone” for 18 narcotics activities. Id. Specifically, Plaintiffs contend that “[f]or years, the policy of the City has 19 been to corral and confine illegal drug dealing and usage, and the associated injurious behaviors, 20 to the Tenderloin.” Id. “Addicts living on the Tenderloin’s streets foreseeably support their habit 21 by stealing (e.g. shoplifting, car break-ins, burglaries, robberies) and hawking the stolen 22 merchandise on the sidewalks.” Id. ¶ 9. And “[a]s their disease progresses, their mental and 23 physical health declines, resulting in them acting erratically, ignoring serious medical problems, 24 rummaging through trash, discarding garbage on the sidewalk around them, going partially 25 clothed, and defecating in public.” Id. As a result, “the City-owned sidewalks in the Tenderloin 26 are dangerous, unsanitary and no longer open and accessible to plaintiffs.” Id. ¶ 37. In addition, 27 “[t]hose involved in narcotics sales block the entrance to [Plaintiff’s] building,” threaten them, and 1 Plaintiffs filed their initial complaint on Mach 14, 2024, and the City moved to dismiss. 2 ECF Nos. 1, 35. The Court denied the City’s motion as to Plaintiffs’ American with Disabilities 3 Act (“ADA”) and Rehabilitation Act claims. ECF No. 46. The Court dismissed Plaintiffs’ federal 4 constitutional claims finding Plaintiffs lacked standing to challenge the City’s failure to enforce its 5 drug and anti-encampment laws in the Tenderloin. Id. at 3–5. The Court also dismissed 6 Plaintiffs’ California constitutional claim for failure to state a claim and remaining state law 7 claims on immunity grounds. Id. at 10–12. 8 Plaintiffs then filed their First Amended Complaint (“FAC”) in which they reallege their 9 claims for: (1) violation of the ADA; (2) violation of the Rehabilitation Act; (3) violation of 10 California’s Disabled Persons Act (“DPA”); (4) public nuisance; (5) private nuisance; and (6) 11 state-created danger under the Due Process Clause of the United States Constitution. ECF No. 50. 12 Plaintiffs also added the following allegations of affirmative conduct by the City that they contend 13 contributed to the Tenderloin conditions: 14 • City departments and agencies distribute and/or facilitate the distribution of 15 fentanyl smoking kits to addicts who opt to live on the Tenderloins sidewalks. Id. 16 ¶ 14. 17 • The City pays millions to organizations that the City knows distribute drug 18 paraphernalia to addicts who camp out on the Tenderloin’s sidewalks. Id. ¶ 15. 19 • The City operates at least four separate programs that provide services, supplies 20 and support to addicts who reject offers of shelter and instead live in tents on the 21 Tenderloin’s sidewalks. Id. ¶¶ 17–20. 22 • The City opened the Tenderloin Center in January 2022. In knowing violation of 23 state and federal criminal statutes, the City encouraged addicts to go there to 24 consume fentanyl and other narcotics. The City instructed members of the SFPD to 25 drop off addicts at the center. As a result, narcotics sales and use surged. The City 26 shut down the Tenderloin Center in December 2022, but the harmful aftereffects of 27 its operations continue to this day because many of the addicts and dealers who 1 remain in the neighborhood. Id. ¶¶ 24–28. 2 • City officials recently supported the activists who set up tents on a Tenderloin 3 street and invited addicts to come there to collect drug paraphernalia and ingest 4 fentanyl. Id. ¶¶ 29–32. 5 • Starting in 2020, the City took over the COVA Hotel on Ellis Street, which it runs 6 as a non-congregate shelter. The City follows a housing first approach at the 7 COVA, and allows occupants to live there even if they use and sell drugs or engage 8 in harmful behavior inside and around the property. Illegal narcotics usage became 9 rampant inside and around the COVA after the City took over operations and is 10 now a magnet for illegal and dangerous narcotics activities. Id. ¶¶ 45–55. 11 The City moves to dismiss all but Plaintiffs’ ADA and Rehabilitation Act claims. ECF No. 51. 13 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. 15 Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that 16 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 17 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 18 accuracy cannot reasonably be questioned.” The court “must take judicial notice if a party 19 requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). 20 However, courts “cannot take judicial notice of the contents of documents for the truth of the 21 matters asserted therein when the facts are disputed.” Cal. Sportfishing Prot. All. v. Shiloh Grp., 22 LLC, 268 F. Supp. 3d 1029, 1038 (N.D. Cal. 2017). 23 The City requests the Court take judicial notice of 11 documents: (1) the proclamation by 24 the Mayor declaring the existence of a local emergency (COVID-19); (2) the proclamation by the 25 Governor declaring a statewide emergency (COVID-19); (3) the Mayor’s January 25, 2023 26 termination of orders issued under proclamation of local emergency (COVID-19); (4) the Mayor’s 27 May 3, 2023 termination of orders issued under proclamation of local emergency (COVID-19); (5) 1 of the Mayor declaring the existence of a local emergency of drug overdoses in the Tenderloin; (7) 2 the supplements to the proclamation by the Mayor declaring the existence of a local emergency of 3 drug overdoses in the Tenderloin; (8) the Board of Supervisor’s motion indicating that the 4 proclamation by the Mayor declaring the existence of a local emergency of drug overdoses in the 5 Tenderloin would expire on June 30, 2022; (9) a July 20, 2024 article from the San Francisco 6 Chronicle; (10) a July 11, 2024 letter from Plaintiffs’ counsel to Mayor London Breed regarding 7 the COVA Hotel; (11) a December 26, 2023 article from the San Francisco Chronicle. ECF No. 8 51–1. 9 The Mayor and Governor’s proclamations and supplements are public records properly 10 subject to judicial notice. See Nat. Res. Def. Council v. McCarthy, No. 16-cv-02184-JST, 2016 11 WL 6520170, at * 2 (N.D. Cal. Nov. 3, 2016) (taking judicial notice of Governor’s emergency 12 proclamations). Accordingly, the Court will take judicial notice of Exhibits A through I. As for 13 the San Francisco Chronicle articles, “a court may take judicial notice of publicly available 14 newspaper and magazine articles and web pages that ‘indicate what was in the public realm at the 15 time, not whether the contents of those articles were in fact true.’” Tarantino v. Gawker Media, 16 LLC, No. CV 14-603-JFW (FFMx), 2014 WL 2434647, at *1 n.1 (C.D. Cal. Apr. 22, 2014) 17 (quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 18 2010)). Accordingly, the Court takes judicial notice of the existence of Exhibits K and M but not 19 the facts contained within. The City, however, offers no support that a letter from Plaintiffs’ 20 counsel to the Mayor is a proper subject of judicial notice. Thus, the Court declines to take 21 judicial notice of Exhibit L. 23 A complaint must contain “a short and plain statement of the claim showing that the 24 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Dismissal under Rule 12(b)(6) is 25 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 26 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 27 Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a 1 Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain 2 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “A 4 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 5 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court 6 must “accept all factual allegations in the complaint as true and construe the pleadings in the light 7 most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 8 However, the Court is not “required to accept as true allegations that are merely conclusory, 9 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 10 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citation omitted). 12 A. Due Process Clause 13 “[T]he Fourteenth Amendment’s Due Process Clause generally does not confer any 14 affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, 15 or property interests.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). Thus, the 16 Fourteenth Amendment typically “does not impose a duty on [the state] to protect individuals 17 from third parties.” Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007). “There are two 18 exceptions to this rule: (1) when a special relationship exists between the plaintiff and the state 19 (the special-relationship exception); and (2) when the state affirmatively places the plaintiff in 20 danger by acting with deliberate indifference to a known or obvious danger (the state-created 21 danger exception).” Patel, 648 F.3d at 971–72 (internal quotation marks and citations omitted). 22 “To succeed on a state-created danger claim, a plaintiff must establish that (1) a state actor’s 23 affirmative actions created or exposed him to an actual or particularized danger [that they] would 24 not otherwise have faced, (2) that the injury [they] suffered was foreseeable, and (3) that the state 25 actor was deliberately indifferent to the known danger.” Sinclair v. City of Seattle, 61 F.4th 674, 26 680 (9th Cir. 2023) (internal quotation marks and citation omitted). 27 Plaintiffs here contend that the City’s affirmative acts—operating an illegal drug 1 offers of shelter—created actual and particularized dangers by encouraging “gang members 2 dealing drugs and unstable fentanyl addicts to habituate the sidewalks of the Tenderloin.” ECF 3 No. 57 at 17. The City argues that Plaintiffs have not alleged a sufficiently serious injury to 4 sustain a state-created danger claim. ECF No. 51 at 29–30. Rather, the City points out, “[t]he 5 primary due process interests Plaintiffs allege the City infringed are their use [of] City sidewalks 6 and a financial loss for the corporate Plaintiffs from lower hotel bookings due to general 7 neighborhood decline.” Id. at 29. 8 The Ninth Circuit has applied the state-created danger doctrine only in serious cases of 9 assault, shootings, and death. Id. (citing Bracken v. Okura, 869 F.3d 771 (9th Cir. 2017); 10 Hernandez v. City of San Jose, 897 F.3d 1125 (9th Cir. 2018); Kennedy v. City of Ridgefield, 439 11 F.3d 1055 (9th Cir. 2006) and others). Accordingly, the Court agrees with the City that Plaintiffs 12 here have not alleged a harm severe enough to constitute danger.1 See Polanco v. Diaz, 76 F.4th 13 918, 927 (9th Cir. 2023) (“Although our precedent has not elaborated on the level of harm 14 required to sustain a state-created-danger claim, it has been implicit in our cases that not any risk 15 will do–the harm must be severe enough to constitute a ‘danger.’”). Accordingly, Plaintiffs’ state- 16 created danger due process claim is dismissed, with leave to amend. 17 B. State Claims 18 1. Immunity 19 California Government Code Section 818.2 states that “[a] public entity is not liable for an 20 injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Cal. 21 Govt. Code. § 818.2. Section 820.2 provides that “[e]xcept as otherwise provided by statute, a 22 public employee is not liable for an injury resulting from his act or omission where the act or 23 omission was the result of the exercise of the discretion vested in him, whether or not such 24 discretion be abused.” Id. § 820.2. 25 1 Although Plaintiffs do not respond to this argument, ECF 57 at 16–18, it appears from the 26 complaint that they contend the City’s actions have heightened the risk they will be subject to violence in the future. While some courts have found that a “party threatened with real harm 27 stemming from a constitutional violation” may have a state-created danger claim, the Court finds 1 The City contends it is immune from Plaintiffs’ state law claims under Sections 818.2 and 2 820.2. ECF No. 51 at 17–19. Plaintiffs point to Section 814 which states that “[n]othing in this 3 part affects liability based on contract or the right to obtain relief other than money damages 4 against a public entity or public employee.” Cal. Govt. Code § 814. Because Plaintiffs only seek 5 equitable relief, they argue these immunity provisions do not apply. ECF No. 57 at 10. The City, 6 however, relying on Schooler v. State of California, 85 Cal. App. 4th 1004 (2000), argues it is still 7 immune because the injunctive relief Plaintiffs seek would create legal and financial burdens on 8 the City. ECF No. 51 at 15. 9 In Schooler, the plaintiff brought suit against the State for the loss of use and diminished 10 value of his property caused by the erosion of a state-owned bluff. 85 Cal. App. at 1007. He 11 argued that with respect to the injunctive relief he requested, any governmental immunity would 12 be inapplicable under Section 814. Id. The Court disagreed, noting that “with respect to ‘relief 13 other than money or damages,’ the type of relief covered cannot circumvent the underlying 14 policies behind the governmental tort liability for money damages; any ‘relief’ allowed under 15 section 814 cannot create duties that immunity provisions guard against.” Id. at 1014. It noted 16 that “[t]he example of equitable relief provided by the Legislative Committee comment is the 17 enjoinment of an unconstitutional statute” which “would not create legal and financial burdens” on 18 the State. Id. “In contrast, the injunctive relief [plaintiff] seeks requires the State to provide 19 physical support for the bluff along with other measures to prevent pedestrian activity. These 20 types of actions impose financial burdens on the State that [the Government Claims Act] guards 21 against.” Id. Accordingly, the State was entitled to immunity on plaintiff’s claims. Id. at 1014– 22 15. 23 In its order granting in part and denying in part the City’s first motion to dismiss, the Court 24 found the City was entitled to immunity on Plaintiffs’ state law claims because the injunctive 25 relief Plaintiffs sought would require the City to enforce its drug and anti-encampment laws to a 26 greater extent than it does now. As in Schooler, that would have created legal and financial 27 burdens on the City that the Government Claims Act guards against. ECF No. 46 at 11–12. 1 Thus, “[i]f and when the court considers remedies, the appropriate relief may be as simple as 2 ordering the City to cease engaging in certain activities.” ECF No. 57 at 19. The Court cannot at 3 this point determine whether Plaintiffs’ claim for relief “circumvent[s] the underlying policies 4 behind the governmental tort liability.” Schooler, 85 Cal. App. 4th at 1014. 5 The City also argues it is immune under Section 8655 which provides that “the state or its 6 political subdivisions shall not be liable for any claim based upon the exercise or performance, or 7 the failure to exercise or perform a discretionary function or duty on the part of a state or local 8 agency or any employee of the state or its political subdivisions in carrying out the provisions of 9 [the Emergency Services Act]” and Section 855.4 which immunizes public entities and employees 10 with respect to claims based on the “decision to perform or not to perform any act to” prevent or 11 control the spread of disease. ECF No. 51 at 16–19. The City points to Mayor London Breed and 12 Governor Gavin Newsom’s proclaimed local and state emergencies related to the COVID-19 13 pandemic. Id. In addition, on December 17, 2021, Mayor Breed proclaimed a local emergency to 14 address drug overdoses in the Tenderloin. Accordingly, the City argues it is immune from “all of 15 Plaintiffs’ state law claims between February 25, 2020, through June 30, 2023, to the extent they 16 are based on actions or inactions related to the two emergencies.” Id. at 17. However, as 17 Plaintiffs point out, it is not clear from the face of the complaint or the judicially noticed 18 documents that any of the allegations which Plaintiffs’ claims rest relate to either of the 19 emergencies. 20 Accordingly, the Court denies Defendants’ motion to dismiss Plaintiffs’ state law claims 21 on immunity grounds. 22 2. California Disabled Persons Act 23 The DPA provides that “[i]ndividuals with disabilities or medical conditions have the same 24 right as the general public to the full and free use of the streets, highways, sidewalks, walkways, 25 public buildings, medical facilities . . . and other public places.” Cal. Civ. Code § 54(a). It further 26 provides that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other 27 members of the general public, to accommodations, advantages, facilities, . . . places of public 1 subject only to the conditions and limitations established by law, or state or federal regulation, and 2 applicable alike to all persons.” Id. § 54.1(a)(1). Both provisions “incorporate the ADA’s 3 protections against discrimination.” Baskin v. Hughes Realty, Inc., 25 Cal. App. 5th 184, 192 4 (2018). 5 The City argues Plaintiffs fail to state a cognizable DPA claim because they do not allege 6 any details or facts supporting the claim but rather “quote California Civil Code section 54(a) and 7 a portion of section 54.1(a)(1),” which “California courts have made clear . . . do not, by 8 themselves, require modifications to facilities.” ECF No. 51 at 20 (internal quotation marks and 9 citation omitted). “Because the FAC does not allege the statutory basis for any requirement to 10 make the City’s facilities accessible” the City contends Plaintiffs have failed to state a claim. Id. 11 However, as the City recognizes, a DPA claim may be premised on ADA violations. Id. Because 12 the Court has already found Plaintiffs have stated a claim under the ADA, they have also stated a 13 DPA claim. See Mannick v. Kaiser Found. Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 14 2168877, at *16 (N.D. Cal. July 31, 2006) (“Under the CDPA, a plaintiff can show either that the 15 ADA was violated, or that the facility in question does not comply with the California Building 16 Code requirements for disabled access.”). 17 3. Private Nuisance 18 Under California law, a nuisance is “anything that is injurious to health or is indecent or 19 offensive to the senses, or an obstruction to the free use of property, that interferes with the 20 comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the 21 customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, 22 square, street, or highway.” In re Firearm Cases, 126 Cal. App. 4th 959, 987 (2005) (internal 23 quotation marks and citation omitted). “Unlike public nuisance, which is an interference with the 24 rights of the community at large, private nuisance is a civil wrong based on disturbance of rights 25 in land.” Koll-Irvine Ctr. Prop. Owner Ass’n v. Cnty. of Orange, 24 Cal. App. 4th 1036, 1041 26 (1994). “A nuisance may be both public and private, but to proceed on a private nuisance theory 27 the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her 1 “The conduct necessary to make the actor liable for either a public or a private nuisance 2 may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a 3 duty to take positive action to prevent or abate the interference with the public interest or the 4 invasion of the private interest.” In re Firearm Cases, 126 Cal. App. 4th at 988 (internal quotation 5 marks and citation omitted). Thus, “liability for nuisance does not hinge on whether the defendant 6 owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; 7 the critical question is whether the defendant created or assisted in the creation of the nuisance.” 8 City of Modesto Redevelopment Agency v. Superior Ct., 119 Cal. App. 4th 28, 38 (2004) as 9 modified on denial of reh’g (June 28, 2004). 10 a. Act or Duty to Act 11 The City argues Plaintiffs have failed to state a claim for nuisance because they have failed 12 to allege the City had a duty to act. ECF No. 51 at 20–21. In fact, Plaintiffs do not rely on a duty 13 to act theory, but rather allege affirmative conduct on the part of the City that has caused or 14 contributed to nuisance. ECF 57 at 12. Specifically, Plaintiffs allege the City has operated a 15 congregate shelter at the COVA where it allows occupants to sell and use narcotics; has operated 16 consumption cites in the Tenderloin; distributes, funds and facilitates the distribution of drug 17 paraphernalia to addicts who refuse offers of shelter; and provides street-based support to those 18 who reject shelter. Id. Because Plaintiffs allege affirmative conduct on the part of the City that 19 they contend created or assisted in the creation of the nuisance, they need not allege a duty to act. 20 See In re Firearm Cases, 126 Cal. App. 4th at 988. 21 b. Disturbance in Property Rights 22 “To proceed on a private nuisance theory, the plaintiff must prove an injury specifically 23 referable to the use and enjoyment of his or her land.” Monks v. City of Rancho Palos Verdes, 167 24 Cal. App. 4th 263, 302. 25 The City contends that Plaintiffs have not alleged a claim for private nuisance as they have 26 failed to allege a disturbance in their property rights. ECF No. 51 at 21. The City argues that the 27 conditions Plaintiffs claim establish a private nuisance are things that “obstruct the free passage 1 consumption of illicit narcotics, illegal street vending, and constitute a fire hazard.” ECF No. 51 2 at 21 (quoting FAC ¶ 118). While Plaintiffs do make those allegations, they also allege that 3 “[t]hose involved in narcotic sales block the” entrances to their buildings and start smoky bonfires 4 outside their apartment, ECF No. 50 ¶¶ 50, 53, which are injuries specifically referable to the use 5 and enjoyment of their land. See Kempton v. City of Los Angeles, 165 Cal. App. 4th 1344, 1349 6 (2008) (“Interference with the ingress and egress to and from a public street constitutes ‘both a 7 private and public nuisance’ and may constitute a special injury actionable by an individual.”); 8 Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540, 1551–52 (2009) (finding allegations of 9 secondhand smoke interfered with use and enjoyment of outdoor common areas of apartment 10 building sufficient to support a private nuisance claim). 11 c. Causation 12 Finally, the City argues Plaintiffs have failed to plausibly allege causation. The challenged 13 conduct must be both a “substantial factor in causing the alleged harm,” Citizen for Odor 14 Nuisance Abatement v. City of San Diego, 8 Cal. App. 5th 350, 361 (2017), and the proximate 15 cause of the resulting nuisance, Martinez v. Pac. Bell, 225 Cal. App. 3d 1557, 1565 (1990). “The 16 substantial factor standard is a relatively broad one, requiring only that the contribution of the 17 individual cause be more than negligible or theoretical.” Bockrath v. Aldrich Chem. Co., Inc., 21 18 Cal. 4th 71, 79 (1999) (internal quotation marks and citation omitted). Proximate cause, on the 19 other hand, “is ordinarily concerned, not with the fact of causation, but with the various 20 considerations of policy that limit an actor’s responsibility for the consequences of his conduct.” 21 Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037, 1045 (2003) (internal 22 quotation marks and citation omitted). “[C]ourts place great emphasis on ‘foreseeability of harm’ 23 in determining whether a . . . nuisance claim sufficiently alleges proximate cause.” City and Cnty. 24 of S.F. v. Purdue Pharma L.P., 491 F. Supp. 3d 610, 679 (N.D. Cal. 2020). 25 The City contends that “independent, non-City actors are the direct cause of Plaintiffs’ 26 alleged harms—impassable sidewalks, dangerous drug dealers, getting stuck by a discarded 27 syringe, smoky fires, threats of harm, [and] loss of business.” ECF No. 51 at 22. The City argues 1 actions and Plaintiffs do not allege any facts from which the Court can reasonably infer a causal 2 link.” Id. Plaintiffs argue that the City’s acts, such as the operation of a congregate shelter which 3 allows residents to use and sell narcotics; operation of narcotic consumption sites in the 4 Tenderloin; instruction of SFPD to drop off addicts at the center; distribution or facilitation of the 5 distribution of drug paraphernalia to addicts in the Tenderloin; and street-based support for those 6 that reject shelter and live on the sidewalk have actively placed and encouraged addicts and 7 dealers to come to the Tenderloin which was a substantial factor in producing the harm. ECF No. 8 57 at 12. Accepting Plaintiffs allegations as true, as it must, the Court cannot at this juncture 9 conclude that it is implausible the City’s acts were “more than [a] negligible or theoretical” cause 10 of Plaintiffs’ harms. Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 978 (1997), as modified 11 on denial of reh’g (Oct. 22, 1997). 12 The City also contends that Plaintiffs’ nuisance claims fail for a lack of proximate cause 13 because Plaintiffs have “suffered as a proximate result of the independent intervening acts of 14 others.” ECF No. 51 at 23 (quoting Martinez, 225 Cal. App. 3d at 1565). However, under 15 California law, a defendant may nonetheless be liable if a factfinder concludes that the defendant 16 “could reasonably foresee the intervening acts of third parties.” Purdue Pharma L.P., 491 F. 17 Supp. 3d at 679. Plaintiffs contend it was reasonably foreseeable that the City’s acts would 18 encourage addicts and dealers to congregate in the Tenderloin causing the alleged nuisances. The 19 Court cannot at this time conclude this is implausible. See Harrison v. City and Cnty. of S.F., No. 20 20-cv-05178-JST, 2022 WL 20241964, at * 5 (N.D. Cal. Apr. 19, 2022). 21 Accordingly, the Court finds Plaintiffs have stated a claim for private nuisance. 22 4. Public Nuisance 23 “A public nuisance is one which ‘affects at the same time an entire community or 24 neighborhood, or any considerable number of persons.’” People ex rel. Gallo v. Acuna, 14 Cal. 25 4th 1090, 1104 (1997) (quoting Cal. Civ. Code § 3480). “A private individual may bring an action 26 against a municipality to abate a public nuisance when the individual suffers harm that is … 27 specially injurious to himself, but not otherwise.” Kempton, 165 Cal. App. 4th at 1349 (internal 1 The City argues that “Plaintiffs allege that conditions which allegedly create a public 2 nuisance impact the entire Tenderloin, including residents, businesses, and visitors.” ECF No. 51 3 at 20. “Because Plaintiffs have alleged the harm they experienced is the same alleged harm 4 || caused to the general public” the City argues “they failed to state a public nuisance cause of 5 action.” Id. However, “when the nuisance is a private as well as a public one, there is no 6 || requirement the plaintiff suffer damage different in kind from that suffered by the general public.” 7 Birke, 169 Cal. App. 4th at 1551. Because Plaintiffs also allege a private nuisance, they need not 8 allege facts showing a special injury to maintain their public nuisance claim. 10 For the foregoing reasons, the Court grants the City’s motion to dismiss Plaintiffs’ sixth 11 claim for relief, with leave to amend. The Court denies the City’s motion to dismiss in all other 12 || respects. Plaintiffs may file an amended complaint within 21 days, solely to correct the 13 deficiencies identified in this order. If no amended complaint is filed by that date, the dismissed 14 || claim in this order will be dismissed with prejudice. 3 15 IT IS SO ORDERED. a 16 Dated: October 15, 2024 . .

M JON S. SS 18 nited States District Judge 19 20 21 22 23 24 25 26 27 28