Wills v. City of Monterey

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CYNTHIA S WILLS, Case No. 21-cv-01998-EMC

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART CITY OF 9 v. MONTEREY’S MOTION TO DISMISS, AND DENYING CITY OF 10 CITY OF MONTEREY, et al., MONTEREY’S MOTION TO STRIKE 11 Defendants. Docket Nos. 76, 78

12 13 14 I. INTRODUCTION 15 Plaintiff Cynthia S. Wills brings suit against Defendants City of Monterey, Monterey 16 Police Department, and Monterey Harbor Patrol Health (collectively, the “City”) for allegedly 17 violating her civil rights. Ms. Wills alleges that the City violated the Eighth Amendment, the 18 Equal Protection Clause and the Fourteenth Amendment’s Right to Travel, and the Due Process 19 Clause of the Fourteenth Amendment. Ms. Wills also brings state law claims against the City for 20 negligence, intentional infliction of emotional distress, and negligent infliction of emotional 21 distress. 22 Currently pending before the Court are the City’s motion to dismiss all of Ms. Wills’ 23 claims against it (Docket No. 76), the City’s Request for Judicial Notice (Docket No. 77), and the 24 City’s motion to strike specific allegations in the Second Amended Complaint (“SAC”) (Docket 25 No. 78). Ms. Wills has opposed all three motions. 26 For the reasons discussed below, the Court DENIES the City’s motion to dismiss the 27 Eighth Amendment claim because Ms. Wills has plausibly stated a claim under Martin v. Boise. 1 leave to amend. Should Ms. Wills wish to pursue this claim, Ms. Wills should clearly and 2 concisely describe any encounters with the Monterey Police Department officers and the Seaside 3 homeless man so that the Court can evaluate whether the City’s police officers affirmatively 4 engaged in conduct that increased the risk of harm to Ms. Wills. Ms. Wills’ other claims are 5 dismissed with prejudice. The Court DENIES the City’s motion to strike as moot. 6 II. FACTUAL AND PROCEDURAL BACKGROUND 7 Ms. Wills’ claims against the City are based on the following allegations in the SAC. In 8 2019, Ms. Wills began living out of her car after being unable to find any available 9 accommodation. SAC (Docket No. 75) at 7.1 Ms. Wills attempted to relocate to two neighboring 10 states but returned when she was unable to find housing or other accommodation. Id. She spent 11 many nights sleeping in her car in Seaside, California. Id. While she was in Seaside, she 12 encountered several homeless people. Id. at 8. One of these individuals (whom the SAC does not 13 identify by name) verbally and physically threatened her. Id. A friend of this man then threatened 14 to set fire to Ms. Wills and her belongings. Id. After this incident, Ms. Wills spoke to the Seaside 15 Police and decided to leave Seaside and return to Monterey. Id. The homeless man followed her 16 to Monterey and began stalking her there. Id. After Ms. Wills reported the stalking to Monterey 17 Police Department (“MPD”), Ms. Wills obtained a restraining order against the homeless man. Id. 18 The man had a long history of drug and alcohol abuse so Ms. Wills feared for her life. Id. at 59. 19 In the spring of 2019, MPD officers repeatedly refused to enforce the restraining order 20 against the Seaside homeless man who had threatened and stalked her. Id. at 9. The homeless 21 man followed Ms. Wills on his bicycle, followed her in Del Monte Park, stood behind her in a line 22 at a restaurant, sat at a table fewer than 20 feet from her, and stood closer than 20 feet from her at 23 a library. Id. at 59. Ms. Wills had many conversations with MPD officers and filed many written 24 complaints with MPD but the officers did not enforce the restraining order. Id. at 9–10. On one 25 occasion, Ms. Wills told an unidentified MPD officer that the man had come within 20 feet of her. 26 Id. at 60. Ms. Wills insisted that the MPD officer measure the distance between them, which 27 1 turned out to be 20 feet or fewer. Id. The MPD officer nonetheless refused to arrest the man. Id. 2 One night at the Coast Guard after midnight, Ms. Wills was awoken by two men who were 3 outside her tent and were attempting to set it on fire. Id. at 10. Ms. Wills heard a voice in the 4 distance yelling that “I told you not to go to those feeds [sic].” Id. Ms. Wills understood that this 5 incident was a form of retaliation against her because she had obtained the restraining order. Id. 6 She reported the incident to MPD but “nothing was done.” Id. Eventually, as Ms. Wills continued 7 to report the restraining order violations, at some point MPD Officer Welch informed Ms. Wills 8 that he had arrested the homeless man. Id. Although the homeless man ceased to violate the 9 restraining order, his friends then began stalking, threatening, and harassing Ms. Wills. Id. at 11. 10 In March of 2019, Ms. Wills tried to sleep in a tent in a park in Monterey near Del Monte 11 beach, but MPD officers instructed her not to set up a tent again in the area. Id. at 8–9. In the 12 spring of 2019, MPD Officers Brian Nino and Scott Collier approached Ms. Wills in a tent on Del 13 Monte Beach in Monterey and told her that if she did not pack up and vacate the tent, she would 14 be arrested. Id. at 9. Ms. Wills had informed the officers that she had no place else to go. Id. 15 Officer Nino handed Ms. Wills an eviction notice. Id. With MPD “harassing” her and with the 16 City of Monterey beachcombers driving by her tent on several occasions to deter campers from 17 staying on the beach, Ms. Wills decided to throw away her tent. Id. at 10. 18 On several occasions in 2019, MPD officers threatened Ms. Wills with citations for “illegal 19 camping.” Id. at 10–11. On one evening, Ms. Wills reported an incident to MPD where a 20 homeless man and another an unidentified man stood near Ms. Wills while she slept, but MPD did 21 not do anything about the incident and threatened Ms. Wills with a citation for illegally camping. 22 Id. at 11. On another evening, after reporting a separate incident to MPD that involved an 23 unidentified man, MPD Officers Nino and Collier did nothing but threatened Ms. Wills with a 24 citation for illegally camping. Id. On another occasion in the spring of 2019, an unnamed MPD 25 officer told Ms. Wills that she should not put up her tent on Del Monte Beach and threatened her 26 with a citation for “illegal camping.” Id. at 10. Ms. Wills alleges that she was told by an 27 unidentified person that it was illegal to camp anywhere in Monterey and that she would be 1 MPD officers continued to threaten Ms. Wills with citations after she vacated Del Monte 2 Beach. Id. at 11. Ms. Wills started to stay at the Custom House near the Monterey Wharf without 3 a tent and MPD Officer Scott Collier told her that if she did not vacate the premises, she would be 4 given a citation for “illegal camping.” Id. at 10–11. Ms. Wills vacated the area and moved to 5 another nearby area. Id. at 11. Ms. Wills then reported an incident to MPD where an “extremely 6 intoxicated” man approached her while she was sleeping, but MPD “refused to do anything” and 7 told Ms. Wills she could be cited for illegally camping. Id. at 11. On another evening, MPD 8 Officers Nino and Kris Richardson threatened Ms. Wills with a citation and/or arrest for illegally 9 camping near Cannery Row. Id. at 12. 10 Then, on an evening when Ms. Wills was sleeping at an art gallery nearby with the 11 permission of the gallery director, a Monterey Harbor Patrol (“MHP”) security employee 12 approached Ms. Wills and asked her what she was doing. Id. at 13. Ms. Wills told the MHP 13 employee that she was at the gallery with permission. Id. The MHP employee stated that he was 14 going to call the MPD. Id. Shortly thereafter, MPD officers arrived at the scene including 15 Officers Jesse Phillips, Richardson, and Collier. Id. Ms. Wills informed the officers that she had 16 the permission of the gallery director to be on the premises. Id. Officer Richardson started yelling 17 “at the top of his lungs” and spitting on Ms. Wills’ face. Id. He repeatedly yelled at Ms. Wills, 18 “Do you want me to throw your dog in the pound? Do you want me to arrest you?” Id. Ms. Wills 19 said nothing and stood still while her dog was in the bathroom. Id. Officer Richardson yelled at 20 Ms. Wills, “Get out now and don’t come back or I’ll arrest you.” Id. at 14. Ms. Wills left and 21 gave the gallery director back the key she had to the gallery. Id. Ms. Wills reported the incident 22 to the City of Monterey City Attorney and stated that she would be filing suit against the City of 23 Monterey, MPD, and MHP. Id. Ms. Wills alleges that these are not the only incidents of 24 harassment from MPD and MHP that she has experienced. Id. at 15. 25 On March 19, 2021, Ms. Wills filed her complaint against the City of Monterey, MPD, 26 Harbor Patrol, and Montage Health. Complaint (Docket No. 1). The City and Montage Health 27 subsequently filed separate motions to dismiss. See Montage Health Mot. to Dismiss Compl. 1 Court granted the City’s motion to dismiss on all claims with leave to amend except for the fourth 2 cause of action, violation of 18 U.S.C. – Deprivation of Rights, which was dismissed with 3 prejudice. Docket No. 56 (Sept. 13, 2021 Order). 4 On December 23, 2021, Ms. Wills filed an amended complaint (“FAC”), which the City 5 subsequently moved to dismiss. See FAC (Docket No. 62), City Mot. to Dismiss FAC (Docket 6 No. 64). On April 4, 2022, with a motion to dismiss pending, Ms. Wills filed the Second 7 Amended Complaint (“SAC”), which is the operative pleading in this case. SAC (Docket No. 75). 8 The City moved to dismiss the SAC and to strike certain allegations contained in the SAC. Mot. 9 to Dismiss (“MTD”) (Docket No. 76); Mot. to Strike (Docket No. 78). The City also requested 10 that the Court take judicial notice of the Monterey City Code sections that Ms. Wills references in 11 the SAC. See Req. for Judicial Not. (Docket No. 77). Ms. Wills has opposed all three motions. 12 See Opp. to Mot. to Dismiss (“MTD Opp.”) (Docket No. 82); Opp. to Mot. to Strike (“Mot. to 13 Strike Opp.”) (Docket No. 84); Declaration of Cynthia Wills in Opposition to Request for Judicial 14 Notice (“Wills Decl.”) (Docket No. 85). 15 III. LEGAL STANDARD 16 A. Motion to Dismiss 17 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 19 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 20 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 21 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must 23 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 24 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true 25 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 26 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 27 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 1 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 3 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 4 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 5 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 6 B. Motion to Strike 7 Before responding to a pleading, a party may move to strike from a pleading any 8 “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The essential 9 function of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise 10 from litigating spurious issues by dispensing with those issues prior to the trial.” Wang v. OCZ 11 Tech. Grp., Inc., 276 F.R.D. 618, 624 (N.D. Cal. Oct. 14, 2011) (quoting Whittlestone, Inc. v. 12 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)). Motions to strike are generally disfavored. 13 See Shaterian v. Wells Fargo Bank, N.A., 829 F. Supp. 2d 873, 879 (N.D. Cal. 2011); Platte 14 Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). A motion to strike 15 should only be granted if the matter sought to be stricken clearly has no possible bearing on the 16 subject matter of the litigation. See Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 17 (N.D. Cal. 1991); Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 18 grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (“‘Immaterial matter’ is that which has no 19 essential or important relationship to the claim for relief or the defenses being pleaded.”). 20 Statements that do not pertain to, and are not necessary to resolve, the issues in question are 21 impertinent. Id. If there is any doubt whether the portion to be stricken might bear on an issue in 22 the litigation, the court should deny the motion to strike. Platte Anchor Bolt, 352 F. Supp. 2d at 23 1057. Just as with a motion to dismiss, the court should view the pleading sought to be struck in 24 the light most favorable to the nonmoving party. Id. 25 IV. DISCUSSION 26 The Court first considers the arguments raised in the motion to dismiss, then turns to the 27 motion to strike. In its motion to dismiss, the City argues that Ms. Wills’ constitutional claims fail 1 with California’s Government Claims Act and are not actionable against a public entity. MTD at 2 2. The Court will begin with Ms. Wills’ constitutional claims. 3 A. Eighth Amendment Claim 4 Ms. Wills asserts that the City violates the Eighth Amendment’s cruel and unusual 5 punishment clause by criminalizing homelessness. SAC (Docket No. 75) at 19. The City raises 6 three arguments in response. First, the City contends that Ms. Wills lacks standing to bring her 7 Eighth Amendment claim. MTD at 12. Second, the City contends that her claim is barred by the 8 Heck doctrine. Id. at 14. Finally, with respect to the merits of Ms. Wills’ claim, the City contends 9 that there is always some public property where individuals may lawfully sleep. Id. at 15. 10 Standing 11 The City asserts that Ms. Wills lacks standing for retrospective relief and that she does not 12 seek prospective relief. MTD at 13. Standing to seek prospective relief is analyzed separately 13 from standing to seek retrospective relief. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 14 (2021) (noting that a plaintiff must “demonstrate standing separately for each form of relief 15 sought” and that “a plaintiff’s standing to seek injunctive relief does not necessarily mean that the 16 plaintiff has standing to seek retrospective damages”) (citation omitted). As a result, the Court 17 will consider and separately analyze whether Ms. Wills is seeking retrospective or prospective 18 relief. 19 a. The SAC Establishes That Ms. Wills Has Standing for Retrospective Relief 20 To establish Article III standing to challenge the City’s code sections, Ms. Wills must 21 show that she has suffered “(1) an injury in fact that (2) is fairly traceable to the challenged 22 conduct and (3) has some likelihood of redressability.” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 23 908 (9th Cir. 2011). The City appears to argue that Ms. Wills has not suffered an injury in fact 24 because she has not been convicted, arrested, or cited under an anti-camping ordinance. 25 The City cites Porto and Martin to argue that “in the Ninth Circuit a plaintiff must have 26 been convicted, arrested, or cited under an anti-camping ordinance in order to confer standing.” 27 MTD at 13. This is not an accurate characterization of either case. While the plaintiffs in Martin 1 hold—that a conviction or citation is necessary to have standing for retrospective relief. Martin v. 2 City of Boise, 920 F.3d 584 (9th Cir. 2019). 3 In Porto, the Ninth Circuit considered whether a plaintiff who challenged a city ordinance 4 that criminalized sleeping or camping in public areas had standing to bring claims for prospective 5 relief and damages. Porto v. City of Laguna Beach, 720 F. App’x 853, 854 (9th Cir. 2018). 6 Because the plaintiff was no longer homeless, he lacked standing for his claims for prospective 7 relief. Id. The court concluded that he lacked standing for his damages claims because he 8 “suffered no injury in fact which [was] fairly traceable to the Anti-Camping Ordinance.” Id. at 9 855. On one occasion, Porto was awoken by an officer who issued him a form marked 10 “Administrative Citation,” which stated that Porto had violated the Anti-Camping Ordinance; 11 however, the officer checked the box marked “Courtesy Notice of Municipal Code Violation,” 12 which specified that “[n]o fines are being assessed at this time.” Id. And in response to his 13 allegations that the police sometimes shone lights into his car at night, the court reasoned that 14 “there is no indication that the police were acting pursuant to the ordinance.” 15 Here, in contrast, the SAC alleges that MPD officers gave Ms. Wills an eviction notice, 16 harassed, and threatened to cite her. Unlike Porto, Ms. Wills does not simply allege that MPD 17 officers woke her up on one occasion, Porto, 720 F. App’x at 855, but that MPD officers 18 repeatedly harassed her and threatened her with citations for camping overnight in violation of 19 City code. These allegations suffice to state an injury in fact that is fairly traceable to the City 20 code that may be redressed by this suit. Ms. Wills alleges on several occasions she was forced to 21 move as a result of MPD officers’ directives and threats in violation of her rights. Ms. Wills has 22 standing to bring her Eighth Amendment claim for retrospective relief. 23 b. The SAC Does Not Establish Standing for Prospective Relief 24 The City argues that the SAC does not seek prospective relief. MTD at 13; see also MTD 25 at 12 (characterizing the SAC as seeking “only retrospective relief regarding her prior interactions 26 with the MPD” and noting that it “does not pray for prospective injunctive or declaratory relief”). 27 It is true that Ms. Wills does not explicitly pray for prospective injunctive or declaratory relief. 1 “punish Defendants (all) to reform or deter the Defendants (all) in similar conduct to that which 2 formed the basis for the civil action.” Id. at 24. And in the Prayer for Relief, she seeks an award 3 of compensatory and punitive or exemplary damages, as well as “[a]ll other such relief as this 4 Court deems just and proper.” Id. at 70. Construed in the light most favorable to Ms. Wills, it is 5 possible that her request “to reform” the MPD could be read as a request for injunctive relief. 6 But even if the Court assumes that Ms. Wills is seeking prospective relief, it is not clear 7 that she faces an “imminent” injury. As the City points out, even if the Prayer is broadly 8 interpreted to include a request for prospective relief, the SAC does not include any allegations 9 that Ms. Wills is “still homeless or that she continues to reside in the City.” MTD at 13. Indeed, 10 the SAC alleges that Ms. Willis “is” a resident of Monterey County and “was” a resident of the 11 City of Monterey. SAC at 2. Because Ms. Wills has not alleged that she is still homeless, it does 12 not appear that she has standing for prospective relief as currently alleged in the SAC. 13 Heck Does Not Bar Ms. Wills’ Request for Retrospective Relief 14 The City asserts that Ms. Wills’ claims for retrospective relief are barred under the Heck 15 doctrine. MTD at 14. Under Heck v. Humphrey, a Section 1983 constitutional claim that 16 “necessarily” implies the invalidity of the plaintiff’s conviction is not “cognizable” unless the 17 conviction was overturned on appeal, collateral review, or executive order. 512 U.S. 477, 486–87 18 (1994). The Heck doctrine thus “serves to ensure the finality and validity of previous 19 convictions.” Martin, 920 F.3d at 615. 20 The City’s argument hinges on a single conclusory allegation that Ms. Wills was “cited” 21 by the City. In the first claim for relief, the SAC alleges that “Defendants still cited, threatened 22 and harassed the Plaintiff for sleeping in public . . .” SAC at 19. The SAC does not include any 23 other allegations related to this citation, and elsewhere the SAC alleges that Ms. Wills received 24 only warnings and threats of citation. Id. at 10–12. Assuming that Ms. Wills did receive a 25 citation, and also assuming that Ms. Wills was subsequently convicted, then Heck would apply to 26 the extent that she is seeking damages on a theory that would undermine a conviction that she did 27 not previously challenge. See Martin, 920 F.3d at 613 (concluding that plaintiffs’ claims for 1 of their convictions were invalidated via state post-conviction relief”). But “[w]here there is no 2 ‘conviction or sentence’ that may be undermined by a grant of relief to the plaintiffs, the Heck 3 doctrine has no application.” Id. (quoting Heck, 512 U.S. at 486–87). Because the SAC does not 4 plausibly allege that Ms. Wills received a conviction of which the validity would be undermined 5 by a judgment in her favor herein, Heck does not bar her claims for damages. 6 The Court now turns to the merits of Ms. Wills’ Eighth Amendment claim. 7 Prima Facie Eighth Amendment Claim 8 The heart of Ms. Wills’ Eighth Amendment claim is that the City criminalizes 9 homelessness because six City Codes allegedly deprive her of any place where she can lawfully 10 sleep. SAC at 37. The SAC first alleges that there are insufficient shelter beds and no non-faith- 11 based shelters for adults. Id. at 17–19. The SAC then alleges that “[c]ollectively, Sections 20-85, 12 23-2, 23-3, 32-6, 32-6.1, and 32-6.2 make it unlawful to conduct any life sustaining activity at all 13 day or night therefore explicitly banning necessary functions of any individual.” Id. at 49. The 14 SAC also alleges that Ms. Wills was told that it was illegal to camp “anywhere” in Monterey and 15 that she would be arrested. Id. at 48. 16 Monterey City Code Section 20-85 reads:

17 No person shall use or occupy, or permit the use or occupancy of, any motor vehicle, recreational vehicle, camp trailer, camper, trailer 18 coach, or similar vehicles for purposes of sleeping camping or habitation on any street or upon any public property, including any 19 public parking lot, or upon any private parking lot, between the hours of 10:00 p.m. and 6:00 a.m. except in areas designated for 20 camping by the City or as otherwise permitted by this City Code. 21 Monterey City Code § 20-85. Monterey City Code Section 23-3 reads:

22 It shall be unlawful for any person to: (a) Camp, except in designated areas, (b) Camp without first obtaining a permit. At 23 Veteran’s Memorial Park, paying a fee and filling out the required card constitutes a permit, (c) Enter or remain on the premises after 24 the established closing hours, (d) Picnic, except in designated areas, (e) Operate or park a vehicle in other than designated areas or over 25 established roads, (f) Burn, kindle, light or maintain any fire during the hours of 10:00 p.m. to 6:00 a.m. or to burn, kindle, light, or 26 maintain a fire during permitted hours which is not fully contained within City-provided fireplaces or fire rings, or fully contained 27 within a portable barbecue; or, to dispose of any charcoals, coals, vehicle to remain in excess of eight consecutive hours, except in 1 conjunction with a valid camping permit . . . 2 Monterey City Code § 23-3. Monterey City Code Section 23-2 includes three relevant definitions 3 for Section 23-3:

4 Camping. The occupation of any camper, trailer, or other vehicle equipped for human habitation, the erection of any tent or other 5 shelter, the arrangement of sleeping bags or bedding for the purpose of, or which will permit, remaining overnight. […] 6 Overnight. The hours between 10:00 P.M. of one day and 6:00 A.M. of the following day. […] 7 Recreation Area. All parks, places, greenbelts, gardens, beaches and any other property owned by the City, including structures thereon, 8 used, operated or maintained for recreational purposes, whether active or passive. 9 10 See Monterey City Code § 23-2. Monterey City Code Section 32-6 reads:

11 No person shall place any box, bale, package, lumber or other thing on any sidewalk by reason of which any sidewalk shall be 12 obstructed; provided that merchants, tradesmen and persons while engaged in receiving or forwarding goods or any other commodity 13 may use a portion of the sidewalk in front of where the goods or other commodity is to be received or shipped, for a period not 14 exceeding four (4) hours in any one day. At all times and in all instances of such necessary obstructions at least four (4) feet in the 15 clear of such sidewalk so obstructed shall be left free and open to the unobstructed use of pedestrians. 16 17 Monterey City Code § 32-6. Monterey City Code Section 32-6.1 reads:

18 It shall be unlawful for any person or group of persons to intentionally obstruct or impede the free movement of any 19 pedestrian or vehicle, or any group of pedestrians or vehicles within, on, in, or upon any public street, sidewalk, way, path, park, wharf, 20 parking lot, or other public property within the City of Monterey, including the ingress or egress of such pedestrian or vehicular traffic 21 from private property, the entrances to or from which abut any such public street, sidewalk, way, path, park, wharf, parking lot or other 22 public property. 23 Monterey City Code § 32-6.1. Finally, Monterey City Code Section 32-6.2 reads in part that:

24 Sitting on Commercial Sidewalks at Certain Times Prohibited. No person shall sit or lie on a commercial sidewalk or on any object 25 brought or affixed to such sidewalk, from 7:00 a.m. until 9:00 p.m., except as provided in this section. 26 27 1 Monterey City Code § 32-6.2 (emphasis in original).2 2 “[T]he Eighth Amendment prohibits the imposition of criminal penalties for sitting, 3 sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” 4 Martin, 920 F.3d at 616. Under Martin, the Eighth Amendment’s prohibition on cruel and 5 unusual punishment bars a city from prosecuting people criminally for sleeping outside on public 6 property when those people have no home or other shelter to go to. Id. at 603. But Martin’s 7 holding was narrow—it did not “dictate to the City that it must provide sufficient shelter for the 8 homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any 9 place.” Id. at 617 (citation omitted). Martin noted that “an ordinance prohibiting sitting, lying, or 10 sleeping outside at particular times or in particular locations might well be constitutionally 11 permissible,” as well as “an ordinance barring the obstruction of public rights of way or the 12 erection of certain structures.” Id. at 617 n.8. 13 The key question under Martin, then, is whether the ordinances collectively criminalize 14 sleeping outside anywhere in the City (particularly in the evening, the normal sleeping period for 15 most people), or whether the ordinances merely criminalize sleeping in certain areas within the 16 City. See Sausalito/Marin Cnty. Chapter of California Homeless Union v. City of Sausalito, No. 17 21-cv-01143-EMC, 2021 WL 5889370, at *2 (N.D. Cal. Dec. 13, 2021) (“Martin prohibits a ban 18 on all camping, not the proper designation of permissible areas.”); Gomes v. Cnty. of Kauai, 481 19 F. Supp. 3d 1104, 1109 (D. Haw. 2020) (dismissing complaint that alleged that Defendants 20 criminalized sleeping in one public park because it did not show that “Plaintiffs could not sleep in 21 other public places within the County of Kauai”); cf. Blake v. City of Grants Pass, No. 18-cv- 22 01823, 2020 WL 4209227, at *8 (D. Or. July 22, 2020) (“Because Grants Pass lacks adequate 23 shelter for its homeless population, its practice of punishing people who have no access to shelter 24 for the act of sleeping or resting outside while having a blanket or other bedding to stay warm and 25

26 2 On April 15, 2022, the City requested that the Court take judicial notice of the Monterey City Code sections at issue in the SAC. See Docket No. 77. Ms. Wills submitted a declaration 27 objecting to the City’s request, but her declaration does not explain why she is objecting. Because 1 dry constitutes cruel and unusual punishment in violation of the Eighth Amendment.”). 2 The City contends that Ms. Wills’ claim fails because the code sections do not criminalize 3 sleeping outside in all public places in the City at all times. MTD at 15. According to the City, 4 there are always portions of public property in the City on which individuals may lawfully sleep. 5 Id. First, because the anti-camping ordinances only restrict overnight camping, the City argues 6 that people may camp and sleep during the day (from 7:01am to 9:59pm) in public recreational 7 areas. Id. Second, the City focuses on Section 32-6.2 (which only applies from 7am to 9pm) to 8 suggest that people may sleep on sidewalks overnight. Id. (“[S]ection 32-6.2 . . . only applies 9 from 7am until 9pm”); Reply (Docket No. 88) at 3 (“[S]ection 32-6.2 does not apply to sidewalks 10 in residential areas of the City.”). 11 Construing all allegations of fact in the light most favorable to Ms. Wills, the Court 12 concludes that the SAC states a claim under the Eighth Amendment. First, the Court takes issue 13 with the City’s position that public areas which are available during the daytime may suffice under 14 Martin. The vast majority of individuals sleep during the evenings, not during daylight hours. 15 The Court will not countenance that a city may constitutionally criminalize sleeping outside 16 during the evenings so long as it provides some public space that is available during daytime 17 hours. Martin cannot and does not stand for such a proposition. 18 Second, it is not evident to the Court that there are places that Ms. Wills may sleep outside 19 during the evenings. Sections 23-2 and 23-3 prevent her from erecting a tent or using a sleeping 20 bag in the City’s residential areas, which is broadly defined to include “[a]ll parks, places, 21 greenbelts, gardens, beaches and any other property owned by the City, including structures 22 thereon, used, operated or maintained for recreational purposes, whether active or passive.” See 23 Monterey City Code §§ 23-2 and 23-3. Notably the term “camping” is broadly defined in § 23-3. 24 Sections 32-6 and 32-6.1 call into question whether people may lawfully sleep or camp on 25 commercial or residential sidewalks at night. Section 32-6, which provides that people cannot 26 place any “box, package, lumber or other thing on any sidewalk by reason of which any such 27 sidewalk shall be obstructed,” presumably bars tents or bedding on sidewalks. Monterey City 1 impede the free movement of any pedestrian” on any sidewalks, which plausibly bar sleeping on a 2 sidewalk. The City characterizes these sections as “directed to the entire obstruction of a 3 sidewalk,” MTD at 17, but by their express terms, these code sections do not contain any such 4 limitation. 5 During the hearing, the City argued that Ms. Wills’ concerns were hypothetical because the 6 City does not enforce all of the ordinances that Ms. Wills cited in the SAC. This assertion is 7 belied by the SAC, which alleges that MPD officers repeatedly threatened Ms. Wills with citations 8 for sleeping outdoors in different areas of the City. See, e.g., SAC at 11–12 (describing an 9 encounter with an MPD officer at the Custom House who threatened her with a citation for illegal 10 camping); id. at 12 (describing an encounter with two MPD officers on Cannery Row who told 11 Ms. Wills that she was illegally camping and threatened to arrest her). 12 In sum, after accepting all of the SAC’s allegations as true, and construing them in the 13 light most favorable to Ms. Wills, the Court concludes that Ms. Wills has stated an Eighth 14 Amendment claim at this juncture. The Court DENIES the City’s motion to dismiss this claim. 15 B. Equal Protection Claim – Right to Travel 16 Ms. Wills alleges that the City violated the Equal Protection Clause and her right to travel 17 under the Fourteenth Amendment. SAC at 39. Confusingly, the SAC also alleges that Ms. Wills 18 “traveled to and from Monterey several times” and “traveled in and out of the state of California.” 19 Id. 20 Under the Equal Protection Clause, “[n]o State shall make or enforce any law which shall 21 abridge the privileges or immunities of citizens of the United States; nor shall any State deprive 22 any person of life, liberty, or property, without due process of law; nor deny to any person within 23 its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The right to travel is a 24 constitutional right protected by the Fourteenth Amendment that permits individuals to move from 25 one place to another. City of Chicago v. Morales, 527 U.S. 41, 53 (1999). However, neither the 26 Ninth Circuit nor the Supreme Court have recognized the right of intrastate travel. See Nunez by 27 Nunez v. City of San Diego, 114 F.3d 935, 944 n.7 (9th Cir. 1997). 1 discrimination, a plaintiff must show that a defendant acted with an intent or purpose to 2 discriminate against the plaintiff based upon membership in a protected class. Barren v. 3 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Where a challenged governmental policy under 4 the Equal Protection Clause is “facially neutral,” proof of its disproportionate impact on an 5 identifiable group “can satisfy the intent requirement only if it tends to show that some invidious 6 or discriminatory purpose underlies the policy.” Lee v. City of Los Angeles, 250 F.3d 668, 686 7 (9th Cir. 2001). Laws that do not burden a protected class or infringe on a constitutionally 8 protected fundamental right are subject to rational basis review. Romer v. Evans, 517 U.S. 620, 9 631 (1996). Under rational basis review, the law will be upheld so long as it bears some rational 10 relation to some legitimate end. Id. But where a challenged governmental action classifies by 11 race, alienage, or national origin, it is subjected to “strict scrutiny” and “will be sustained only if 12 they are suitably tailored to serve a compelling state interest.” City of Cleburne, Tex. v. Cleburne 13 Living Ctr., 473 U.S. 432, 440 (1985). 14 The City alleges that the code sections at issue are rationally related to the “promotion of 15 sanitary and safe conditions within the City,” so Ms. Wills fails to state an equal protection claim 16 based on her status as a homeless person. MTD at 18. The Court agrees with the City. The code 17 sections do not facially discriminate on the basis of a suspect classification: they do not classify 18 individuals by “race, alienage, or national origin.” City of Cleburne, 473 U.S. at 440. As such, 19 the codes are subject to rational basis review. Romer, 517 U.S. at 631. Ms. Wills failed to allege 20 that these code sections lack some rational relationship to a legitimate end under rational basis 21 review, subject to the potential violation of the Eighth Amendment discussed above. Romer, 517 22 U.S. at 631. 23 The Court had previously dismissed Ms. Wills’ claim under the Equal Protection Clause 24 with leave to amend so that she could allege how the codes fail to bear some rational relation to a 25 legitimate end. Order at 22. Because Ms. Wills still has not done so, the Court dismisses the right 26 to travel claim with prejudice. 27 C. Substantive Due Process – State-Created Danger 1 process by placing her in a known danger with deliberate indifference to her safety. SAC at 39– 2 41. In general, a state is not required to protect individuals from third parties. Morgan v. 3 Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007) (“[T]he general rule is that the Fourteenth 4 Amendment does not impose a duty on government officers to protect individuals from third 5 parties.”). But there are two exceptions to this general rule. “First, a special relationship between 6 the plaintiff and the state may give rise to a constitutional duty to protect.” Martinez v. City of 7 Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). “Second, the state may be constitutionally required 8 to protect a plaintiff that it “affirmatively places . . . in danger by acting with ‘deliberate 9 indifference’ to a ‘known or obvious danger.’” Id. (quoting Patel v. Kent Sch. Dist., 648 F.3d 965, 10 971–72 (9th Cir. 2011)). Ms. Wills’ claim is predicated on the second exception. 11 To state a substantive due process claim based on a state-created danger, Ms. Wills must 12 establish three elements. “First, she must show that the officers’ affirmative actions created or 13 exposed her to an actual, particularized danger that she would not otherwise have faced. Second, 14 she must show that the injury she suffered was foreseeable. Third, she must show that the officers 15 were deliberately indifferent to the known danger.” Martinez, 943 F.3d at 1271 (citation omitted). 16 Deliberate indifference is “a stringent standard of fault, requiring proof that a municipal actor 17 disregarded a known or obvious consequence of his action.” Patel, 648 F.3d at 974 (quoting 18 Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). The Ninth Circuit has explained that deliberate 19 indifference requires that the state actor “knows something is going to happen but ignores the risk 20 and exposes [the plaintiff] to it.” Id. at 974 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 21 1996)) (emphasis in original). 22 The SAC articulates two independent theories under which the City endangered Ms. Wills. 23 First, the SAC alleges that by threatening citations for illegal camping and “forcing Plaintiff to 24 hide from the visibility of other people,” the City subjected Ms. Wills to the general threat of other 25 homeless people. Id. at 40. Second, the SAC alleges that the City did not enforce a restraining 26 order against a particular individual. Id. at 40–41. 27 1 The SAC Does Not Allege a State-Created Danger Arising from MPD’s 2 Enforcement of the City Code 3 The first prong of Martinez requires the SAC to show that the MPD’s affirmative actions 4 created or exposed Ms. Wills to an actual, particularized danger that she would not otherwise have 5 faced. Martinez, 943 F.3d at 1271. Ms. Wills’ theory is that by threatening citations and “forcing 6 her to hide from the visibility of other people,” MPD “subjected her to the threats of other 7 homeless individuals.” SAC at 40. Ms. Wills has already shown that there was nowhere for her to 8 lawfully camp in Monterey. See Eighth Amendment section above. Even so, though, the 9 Substantive Due Process claim fails because Ms. Wills has not shown that she was exposed to a 10 danger that she would not have otherwise faced. 11 As alleged in the SAC, Ms. Wills was threatened by other homeless people in several 12 locations in Monterey, including at the Coast Guard, on a bench at the Custom House, and in an 13 area near to the Custom House. See SAC at 10–11. The SAC does not allege that Ms. Wills was 14 “hiding” from MPD officers during these incidents—to the contrary, it appears that she was in a 15 relatively public place (i.e., sleeping on a bench) at the time of these encounters. The SAC thus 16 does not causally connect these interactions with the MPD’s enforcement of the anti-camping 17 ordinances. 18 The caselaw is clear that to state a state-created danger claim, the state actor must 19 affirmatively do something that “make[s] the situation worse” for the plaintiff. Martinez, 943 F.3d 20 at 1272. In Sanchez v. City of Fresno, for instance, the court found that plaintiff stated a 21 cognizable claim where the City of Fresno allegedly timed the demolitions of “plaintiff’s shelter 22 and property essential to protection from the elements” to occur at “the onset of the winter months 23 that would bring cold and freezing temperatures, rain, and other difficult physical conditions.” 24 Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1100 (E.D. Cal. 2012). 25 In Cobine v. City of Eureka, plaintiffs alleged the City’s forced eviction from an 26 encampment and prohibition against residing in their own tents and makeshift shelters in their own 27 encampment on public land caused them to reside and sleep “on the street in unfamiliar areas, and 1 and worse.” Cobine v. City of Eureka, 250 F. Supp. 3d 423, 433 (N.D. Cal. 2017). Cobine found 2 that plaintiffs had not stated a plausible state-created danger claim:

3 In the absence of particular allegations that the state action put the Plaintiffs in an inherently dangerous situation, the Court is bound to 4 find that the generalized dangers of living on the street preexisted Plaintiffs’ relocation from the Palco Marsh. From the allegations in 5 the amended complaint, it appears that the encampment residents were permitted to sleep in a City-owned parking lot or were offered 6 temporary emergency shelter accommodations. (See id. at ¶¶ 202, 203.) The current circumstances are certainly not ideal, but the 7 Court finds they do not amount to a deliberate indifference of placing Plaintiffs in an inherently more dangerous situation than 8 they had faced previously. The general circumstances of being homeless in Humboldt County cannot be minimized. Without 9 allegations of intentional eviction during precarious weather or other facts indicating deliberate indifference to the safety and welfare of 10 the population, the Court must dismiss the claim. 11 Id. at 433; see also Hous. is a Hum. Right Orange Cnty. v. Cnty. of Orange, No. 19-cv-388, 2019 12 WL 6481311, at *12 (C.D. Cal. Aug. 12, 2019) (rejecting claim where “Plaintiffs have not 13 sufficiently alleged well-pleaded facts plausibly suggesting that the City has taken the type of 14 affirmative steps to place an individual in a known and likely danger to satisfy the deliberate 15 indifference standard . . . [a]dditionally, the difficulties the homeless individuals camping at the 16 temporary campground may face are largely identical to those they would face while camping 17 elsewhere in the City”). 18 Because the SAC has not established that the MPD’s enforcement of the code sections 19 exposed Ms. Wills “to a danger which she would not have otherwise faced,” this theory does not 20 allege a state-created danger. And because of the pre-existing danger that Ms. Wills experienced 21 from other homeless people, the state-created danger doctrine does not apply. The Court 22 dismisses the theory of a state-created danger based upon MPD’s enforcement of the city code 23 sections with prejudice. 24 The SAC Does Not Allege A State-Created Danger Based On the Restraining 25 Order 26 Ms. Wills’ second theory is that MPD’s failure to enforce the restraining order against the 27 Seaside homeless man gave rise to a state-created danger. See SAC at 60 (“MPD put Plaintiff in 1 harassment and stalking.”). 2 The question here is whether MPD exhibited “affirmative conduct” that created or exposed 3 Ms. Wills to an actual, particularized danger that she otherwise would not have faced. Martinez, 4 943 F.3d at 1271. As the City points out, generally a failure to enforce a restraining order or to 5 arrest a person does not, on its own, constitute affirmative conduct. See id. at 1272 (“[F]ailing to 6 make an arrest . . . [is] not an affirmative act that created an actual, particularized danger.”) 7 (cleaned up); Cardenas v. Cnty. of Tehama, 476 F. Supp. 3d 1055, 1066 (E.D. Cal. 2020) (“[T]he 8 officers’ failure to enforce the restraining orders or follow up directly with Neal regarding the 9 complaints against him are examples of inaction, not affirmative conduct, and are insufficient to 10 state a claim under the state created danger theory.”). MPD’s mere failure to enforce the 11 restraining order, alone, cannot serve as the basis for Ms. Wills’ state-created danger claim. 12 On the other hand, though, courts have recognized this theory when the officer’s failure to 13 make an arrest is accompanied by some other conduct that could be seen as encouraging or 14 condoning the assailant’s actions. In Martinez, for example, an officer exhibited actionable 15 affirmative conduct by failing to arrest a domestic violence abuser and praising the abuser in the 16 abuser’s presence. Martinez, 943 F.3d at 1273. The Ninth Circuit found that such remarks placed 17 the victim in greater danger because the abuser may have felt “emboldened to continue his abuse 18 with impunity.” Id. Likewise, in Armstead, the court found that Oakland police officers plausibly 19 created an actual, particularized danger when they repeatedly told the plaintiff “within earshot” of 20 the assailant that they were “understaffed and overworked and their calls were not a high priority” 21 because “this conveyed to [the assailant] that he could continue to harass the Armsteads.” 22 Armstead v. Cnty. of Alameda, No. 21-cv-05257-LB, 2022 WL 888660, at *4 (N.D. Cal. Mar. 26, 23 2022). On another occasion, the assailant threw a rock through the Armsteads’ front window, 24 hitting and injuring Mrs. Armstead, who was then transported by ambulance to the hospital for her 25 serious injuries. Id. The police responded to the scene, did not arrest the assailant for felony 26 assault or any crime, did not question him, and again within earshot of the assailant, told Mrs. 27 Armstead that they would not take any action. Id. 1 “affirmative conduct” if the MPD officers encouraged or condoned the homeless man’s actions. 2 According to the SAC, although the MPD was summoned “between six and twelve times” over 3 the homeless man’s alleged violation of the restraining order, MPD officers repeatedly refused to 4 arrest him. SAC at 59; see also id. at 9–11 and 59–60 (describing various interactions that Ms. 5 Wills had with the homeless man). The SAC also alleges that “[t]he Defendants [sic] failure to 6 enforce that Restraining [sic] the Plaintiff contends led the man to believe that he could threaten 7 her by attempting to set her tent on fire in the early morning hours while she slept in her tent.” Id. 8 at 65. Additionally, the SAC alleges that “[t]he MPD put Plaintiff in more danger by refusing to 9 arrest him, which led him to believe that he could get away with the harassment and stalking.” Id. 10 at 60. Under Armstead, such allegations—should they be supported by sufficient factual detail 11 elsewhere in the SAC—could state a claim. 12 The closest that the SAC comes to providing sufficient factual detail is with an incident 13 involving a tape measure. The SAC alleges that “[o]n one occasion Wills told MPD that the man 14 had come within 20 feet of her and MPD said it wasn’t 20 feet, and Wills asked MPD to measure 15 the distance with a measuring device. MPD complied after Wills insisted, and it was indeed 20 16 feet or less and still MPD refused to arrest the man.” Id. at 60. This allegation supports this 17 theory because it puts Ms. Wills, the homeless man, and an MPD officer together temporally and 18 geographically. If the homeless man perceived the MPD officers refused to take action in the face 19 of a conceded violation as determined by the officers, along with other willful failures to take 20 action in the face of a clear violation of law, this could be construed as affirmatively encouraging 21 continued misconduct. However, it is not clear that an MPD officer was present with Ms. Wills 22 and the homeless man on other occasions. Without that temporal and spatial link, the officers’ 23 refusal to enforce the restraining order cannot plausibly be seen as encouraging or condoning the 24 harassment. 25 In sum, the SAC does not contain sufficient factual allegations that could give rise to a 26 state-created danger claim based upon MPD’s failure to enforce a restraining order. But because 27 that it is possible that Ms. Wills could provide the requisite factual support, Ms. Wills is given 1 D. State Law Claims 2 Ms. Wills also brings three state common law claims for negligence, intentional infliction 3 of emotional distress, and negligent infliction of emotional distress. SAC at 61–69. She seeks 4 money damages. Id. at Prayer. The City argues that these claims should be dismissed because 5 Ms. Wills has purportedly failed to comply with the California Government Claims Act. MTD at 6 21–23. 7 Under the Government Claims Act, set forth in California Government Code sections 810 8 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity 9 unless the plaintiff first presented the claim to the public entity. See Cal. Gov. Code § 945.4. The 10 purpose of this requirement is “to provide the public entity sufficient information to enable it to 11 adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” 12 City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted). Compliance 13 with this “claim presentation requirement” is mandatory. State v. Superior Court (Bodde), 32 Cal. 14 4th 1234, 1244 (2004); Rubenstein v. Doe No. 1, 3 Cal. 5th 903, 906 (2017), as modified on denial 15 of reh’g (Nov. 1, 2017) (“Compliance with the claim requirement is a condition precedent to suing 16 the public entity.”). Failure to demonstrate such compliance constitutes a failure to state a cause 17 of action and will result in the dismissal of state law claims. Bodde, 32 Cal. 4th at 1240. 18 The Government Claims Act contains strict time limitations: a claim relating to a cause of 19 action for an injury to a person shall be presented no later than six months after the accrual of the 20 cause of action, and a claim relating to any other cause of action shall be presented not later than 21 one year after the accrual of the cause of action. Cal. Gov. Code § 911.2(a). The Government 22 Claims Act also requires that certain information be included in the written notice, including “the 23 date, place, and other circumstances of the occurrence or transaction which gave rise to the claim 24 asserted.” See Cal. Gov. Code § 910 (“A claim shall be presented . . . and shall show all of the 25 following . . . ”). 26 Under California’s pleading standard against a public entity under the Government Claims 27 Act, “a plaintiff must allege facts demonstrating or excusing compliance with the claim 1 a cause of action.” Bodde, 32 Cal. 4th at 1243; Robinson v. Alameda Cnty., 875 F. Supp. 2d 1029, 2 1043 (N.D. Cal. 2012). 3 The Court previously dismissed Ms. Wills’ state law claims because she did not allege that 4 she filed a timely written claim with the City as required by the Government Claims Act. Order at 5 23. The Court dismissed her claims with leave to amend so that Ms. Wills could allege “whether 6 and how she complied with the Government Claims Act.” Id. at 24. 7 In the SAC, Ms. Wills alleges that she “sent written claims by mail against the city and her 8 intent to bring Civil Action [and] never heard from the City of Monterey. As such Plaintiff was 9 not required to comply with the Government Claims Act in reference to her Civil Rights claims as 10 generally governmental tort immunities recognized by state law cannot override liabilities created 11 by the federal Civil Rights Act.” SAC at 69. The City contends that these allegations are 12 insufficient because the SAC “does not allege any dates of compliance with the specific deadlines 13 of the California Government Claims Act and provides no basis for the Court to determine 14 whether the alleged compliance is sufficient.” MTD at 22. The City also objects that the SAC 15 “fails to allege to what agency person any claim was submitted or to provide any copy, content, or 16 description of the contents of the claim.” Id. at 23. Ms. Wills does not respond to these arguments 17 in her opposition brief. 18 Courts have dismissed claims for failure to allege compliance with the California 19 Government Claims Act. See, e.g., AHCS - Mental Health & Wellness Inc. v. Los Angeles Cnty., 20 No. 21-cv-7694, 2021 WL 6495038, at *7 (C.D. Cal. Dec. 16, 2021) (“Given that Plaintiff has not 21 alleged more than a conclusory assertion that Navitus was Defendant’s ‘designee,’ the Court finds 22 that Plaintiff did not comply with the California Government Claims Act and grants Defendant’s 23 Motion to Dismiss for this reason.”); Payan v. Tate, No. 13-cv-00807, 2017 WL 880421, at *4 24 (E.D. Cal. Mar. 6, 2017) (“Plaintiff’s conclusory allegation in the proposed supplemental 25 complaint that ‘Plaintiff filed government claim action and exhausted all the issues to this claim’ 26 does not warrant amendment. Plaintiff failed to allege any facts that he complied with the 27 California Government Claims Act.”); Jones v. Cnty. of San Diego, No. 20-cv-1989, 2021 WL 1 as required by section 911.2 but his claim was denied . . . This summary allegation does not 2 sufficiently assert compliance with the claim presentment procedure that sets out specific 3 deadlines. In the FAC, Plaintiff fails to provide any specifics dates as to his claim history in order 4 for the Court to determine whether he has alleged compliance with the Government Claims Act. 5 Accordingly, the Court grants Defendant’s motion to dismiss for failing to allege compliance with 6 the Government Claims Act.”). 7 Because the SAC has not provided sufficient factual support to show compliance with the 8 California Government Claims Act, the Court will dismiss the state law claims. Because the Court 9 already gave Ms. Wills leave to amend previously and Ms. Wills still has not shown compliance 10 with the Government Claims Act, these claims are DISMISSED with prejudice. 11 E. Motion to Strike 12 The City asserts that the Court should strike thirty-two allegations in the SAC that contend 13 or bear on the City having “a duty to enforce restraining orders against third persons for the 14 benefit of Plaintiff and a duty to generally ‘protect her’ from other homeless persons and the 15 dangers they might pose.” Mot. to Strike at 7, 13–21. According to the City, such allegations are 16 redundant, immaterial, and impertinent because government and police entities have no such duty. 17 Id. at 7, 10. As a result, the City contends that these allegations do not support or relate to any 18 cause of action, and should be stricken as a matter of law before the parties are prejudiced with the 19 time, expense, and confusion of conducting discovery, preparing further motions, and litigating 20 such issues. Id. at 7. 21 The Court has granted the City’s motion to dismiss the SAC for every claim except for the 22 Eighth Amendment claim. As a result, it DENIES the City’s motion to strike as moot. 23 V. CONCLUSION 24 For the foregoing reasons, the Court GRANTS the City’s motion to dismiss the SAC’s 25 claims under the Fourteenth Amendment and state law. The Court DENIES the City’s motion to 26 dismiss the Eighth Amendment claim. The City’s motion to strike is DENIED as moot. 27 /// 1 Should Ms. Wills wish to pursue her Fourteenth Amendment Substantive Due Process 2 claim, she must file an amended complaint by or before September 12, 2022. 3 This order disposes of Docket Nos. 76 and 78. 4 5 IT IS SO ORDERED. 6 7 Dated: August 1, 2022 8 9 ______________________________________ EDWARD M. CHEN 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27