Allen v. City of Sacramento

Filed 2/6/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

MATTHEW RAYMOND ALLEN et al., C071710

Plaintiffs and Appellants, (Super. Ct. No.

34201000070097CUCRGDS)

v.

CITY OF SACRAMENTO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Sacramento County,

Shelleyanne W.L. Change, Judge. Reversed in part and affirmed in part.

Law Office of Mark E. Merin and Mark E. Merin for Plaintiffs and Appellants.

James Sanchez, City Attorney, and Chance L. Trimm, Senior Deputy City

Attorney for Defendants and Respondents.

1

Plaintiffs challenge a City of Sacramento (City) ordinance. Among other things,

they assert the ordinance is unconstitutional both on its face and as applied to them. We

will reverse a portion of the trial court’s order sustaining the City’s demurrer. Although

plaintiffs fail to meet their appellate burden on most of their claims, they state a cause of

action for declaratory relief asserting an as-applied challenge based on equal protection.

A private property owner agreed that plaintiffs -- 22 homeless individuals and two

people providing services to the homeless -- could camp on his lot in a light industrial

area of the City of Sacramento. City police informed plaintiffs that their camping

violated a City ordinance prohibiting extended camping on public or private property

without a City permit. When plaintiffs continued to camp on the lot, the police gave

them citations on two occasions and removed their camping gear. Plaintiffs brought in

other camping gear each time and continued their camping activities. The police

ultimately arrested them.

Plaintiffs sued the City, claiming the camping ordinance is unconstitutional and

the City enforces the ordinance in a discriminatory manner. The trial court sustained the

City’s demurrer with leave to amend. Rather than amend the complaint, the parties

agreed judgment could be entered against plaintiffs and plaintiffs could appeal.

On appeal, plaintiffs raise many concerns about the plight of homeless individuals

in the City. Among other things, they argue homeless individuals are forced to live

outside because they lack employment opportunities, mental health treatment, and

adequate shelter. But in considering these arguments, we must be mindful of our limited

role in this dispute. Our focus must be to determine whether plaintiffs have met their

legal burden on appeal, i.e., whether they have stated a cause of action in their first

amended complaint. It is not our role to determine appropriate City policy. Thus, as we

consider the City’s camping ordinance, we may not opine on the wisdom of the policies

embodied in such legislation. (Superior Court v. County of Mendocino (1996) 13 Cal.4th

45, 53.) “[A]bsent a constitutional prohibition, the choice among competing policy

2

considerations in enacting laws is a legislative function.” (Ibid; see also Tobe v. City of

Santa Ana (1995) 9 Cal.4th 1069, 1092, fn. 12 (Tobe) [arguments regarding the

intractable problem of homelessness and the impact of the challenged ordinance on

homeless persons should be addressed to legislative bodies, not the courts]; People v.

Kellogg (2004) 119 Cal.App.4th 593, 605.)

Accordingly, in part I of this opinion, we will address plaintiffs’ contentions

pertaining to their first cause of action for declaratory judgment. Plaintiffs contend the

trial court erred in sustaining the demurrer to their first cause of action because (A) a

demurrer to a declaratory relief cause of action must be overruled whenever an actual

controversy is alleged, (B) plaintiffs adequately stated a facial void-for-vagueness

challenge to the ordinance, and (C) plaintiffs adequately stated an as-applied

constitutional challenge to the ordinance based on (1) the Eighth Amendment prohibition

against cruel and unusual punishment, (2) the right to travel, (3) equal protection and

class-based discrimination, (4) arbitrary and discriminatory enforcement of laws, (5)

substantive due process, and (6) protections regarding vague laws.

In part II of this opinion, we will analyze plaintiffs’ contention pertaining to their

second cause of action for an injunction. Plaintiffs contend the trial court erred in

sustaining the demurrer to their second cause of action because their failure to cite

“California Civil Code section 526(a)” should not foreclose injunctive relief.

Finally, in part III, we discuss plaintiffs’ contention pertaining to their third cause

of action for violation of Civil Code section 52.1 [interference or attempt to interfere, by

threats, intimidation, or coercion, with exercise of rights]. Plaintiffs contend the trial

court erred in sustaining the demurrer to their third cause of action because plaintiffs

alleged facts constituting threats and coercion.

Regarding the first cause of action for declaratory judgment, we conclude (A) a

general demurrer is proper when the plaintiff does not allege facts sufficient to state a

claim; (B) plaintiffs have not stated a facial vagueness challenge because their camping

3

clearly violated the ordinance; and (C) plaintiffs have not stated an as-applied challenge

based on cruel and unusual punishment (the ordinance punishes the act of camping and

does not punish plaintiffs’ homeless status) or the right to travel (the ordinance has only

an indirect impact on the right to travel, and the first amended complaint does not allege

punishment for exercising the right to travel). But plaintiffs do state an as-applied

challenge based on equal protection.

Plaintiffs forfeited their as-applied claims asserting arbitrary and discriminatory

enforcement and a violation of substantive due process, because they failed to provide

any argument or citation to supporting authority in their opening brief regarding those

contentions. And they forfeited their as-applied claim regarding vagueness by failing to

explain how the ordinance is vague as applied to them.

Regarding the second cause of action for an injunction, the trial court did not err in

sustaining the demurrer because an injunction is not a cause of action. As for the third

cause of action for violation of Civil Code section 52.1, the trial court did not err because

plaintiffs do not allege City police threatened violence and they do not allege threats,

intimidation, or coercion independent of the coercion inherent in their detention and

arrest.

We will reverse the judgment with respect to the first cause of action for

declaratory judgment asserting an as-applied challenge based on equal protection. We

will affirm the judgment in all other respects.

BACKGROUND

Because this case comes to us on a demurrer for failure to state a cause of action,

we accept as true the well-pleaded allegations in plaintiffs’ first amended complaint.

(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) We draw the following

facts from that complaint.

There are at least 2,600 homeless persons in the City at any given time. Of that

number, 1,200 to 1,300 homeless people do not have shelter each night.

4

Plaintiffs are part of a group of homeless men and women who stayed the night at

different public and private properties in the City in 2009. City police officers informed

plaintiffs that staying overnight at those properties violated the City’s camping ordinance

and could subject plaintiffs to arrest and loss of their personal property.

Sacramento City Code section 12.52.030 makes it “unlawful and a public nuisance

for any person to camp, occupy camp facilities, or use camp paraphernalia in . . . [a]ny

public property; or . . . [a]ny private property.” A violation of the ordinance is a

misdemeanor. (Sac. City Code, ch. 12.52, §§ 12.52.030, 12.52.040.)

The ordinance contains an exception for overnight camping on private residential

property by friends or family of the property owner, so long as the owner consents and

the overnight camping is limited to not more than one consecutive night. (Sac. City

Code, supra, at § 12.52.030.)

In addition, the City Manager may issue a temporary permit to allow camping on

public or private property in connection with a special event. (Sac. City Code, supra, at

§ 12.52.030.) A special event includes programs operated by the City, youth or school

events, marathons or other sporting events, and scouting activities. (Id. at § 12.52.050.)

The city manager may consider any facts bearing on the sanitary, health, safety, and

welfare conditions of the area where the proposed temporary camp or camp facility is to

be located in issuing a permit. (Ibid.) The city manager may impose conditions on the

establishment, maintenance and operation of the camp or camp facility, including

conditions relating to security, sanitation facilities, the number of occupants, posting of

bonds or deposits, insurance, quiet hours, duration of the permit, and permitted activities

on the premises. (Sac. City Code, supra, at § 12.52.070.) A permit may be revoked if

the city manager determines the maintenance or continuing operation of the camp or

camp facilities is adverse to the public health, safety, and welfare. (Ibid.)

The camping ordinance states it is intended “to maintain streets, parks and other

public and private areas within the city in a clean, sanitary and accessible condition and

5

to adequately protect the health, safety and public welfare of the community, while

recognizing that, subject to reasonable conditions, camping and camp facilities associated

with special events can be beneficial to the cultural and educational climate in the city.”

(Sac. City Code, supra, at § 12.52.010.) The Sacramento City Council recognized that

“[t]he streets and public areas within the city should be readily accessible and available to

residents and the public at large. The use of these areas for camping purposes or storage

of personal property interferes with the rights of others to use the areas for which they

were intended. Such activity can constitute a public health and safety hazard which

adversely impacts neighborhoods and commercial areas. Camping on private property

without the consent of the owner, proper sanitary measures and for other than a minimal

duration adversely affects private property rights as well as public health, safety, and

welfare of the city.” (Ibid.)

The ordinance is not intended “to interfere with otherwise lawful and ordinary

uses of public or private property.” (Sac. City Code, supra, at § 12.52.010.) It does not

prohibit or make unlawful “activities of an owner of private property or other lawful user

of private property that are normally associated with and incidental to the lawful and

authorized use of private property for residential or other purposes” and “activities are

expressly authorized by the Planning and Development Code or other laws, ordinances

and regulations.” (Id. at § 12.52.030.)

The complaint alleges the City enacted the camping ordinance to discriminate

against homeless persons. It further alleges the City has a policy and practice of

dissuading homeless persons from entering the City or, if within the City, to drive them

out of the City by selectively enforcing the ordinance against the homeless, even when

they are living on private property with the property owner’s consent.

Pursuant to a lease agreement, the owner of a fenced lot in a light industrial area of

the City agreed in 2009 to allow plaintiffs to live and store personal property at the lot

until they qualified for shelter. About 30 people set up tents and stored their property at

6

the lot with the owner’s written permission. Portable toilets were also moved onto the

property.

On September 2, 2009, City police officers detained all persons at the lot, seized

and removed plaintiffs’ personal property including tents, sleeping bags and personal

items, and cited the detainees for violating the camping ordinance. Alleging they had

nowhere else to go, plaintiffs obtained more tents and sleeping bags and remained at the

lot.

On September 4, 2009, police officers again detained and cited plaintiffs for

violating the camping ordinance. Police seized and removed the additional tents,

sleeping bags and personal items at the lot. Once again alleging they had nowhere else to

go, plaintiffs obtained more tents, sleeping bags and personal items, and remained at the

lot.

On September 12, 2009, police officers arrested plaintiffs for violating the

camping ordinance and seized the tents, sleeping bags, tarps and personal items found at

the lot. The complaint alleges plaintiffs have had to search for places to sleep on other

public or private properties because no shelter was available to them. Plaintiffs fear

arrest and the confiscation of their property. Some homeless persons, including one of

the plaintiffs, have died while sleeping outdoors.

The first cause of action of plaintiffs’ first amended complaint seeks a declaration

that the camping ordinance is unconstitutional on its face and also as applied to homeless

persons residing on private property in the City with the consent of the owner when no

public or private shelter is available to them. Plaintiffs seek a declaration that the

ordinance (1) targets and discriminates against the homeless in the same way the

ordinance in Parr v. Municipal Court for Monterey (1971) 3 Cal.3d 861 (Parr)

discriminated against “hippies;” (2) criminalizes the status of homelessness which is

prohibited under Robinson v. California (1962) 370 U.S. 660 [8 L.Ed.2d 758]

(Robinson); (3) is selectively enforced against the homeless; (4) interferes with the state

7

and federal constitutional right to freedom of travel because the homeless are forced to

leave the City at night in order to avoid arrest; (5) deprives homeless persons of equal

protection of the laws in that the City only enforces the ordinance against the homeless

and their supporters; (6) deprives the homeless who have no access to a public or private

shelter of substantive due process of law because they are not permitted to live in the City

without the threat of arrest; and/or (7) contains terms which are unconstitutionally vague.

The second cause of action seeks an injunction against the selective enforcement

of the camping ordinance, and the third cause of action asserts a violation of Civil Code

section 52.1. There was also a fourth cause of action which plaintiffs subsequently

agreed to dismiss.

The trial court sustained the City’s demurrer to plaintiffs’ first, second and third

causes of action but granted leave to amend. Rather than filing a second amended

complaint, however, plaintiffs agreed judgment could be entered against them in return

for the City’s agreement that plaintiffs could appeal.

STANDARD OF REVIEW

When, as here, a demurrer to a complaint is sustained with leave to amend and the

plaintiffs elect not to amend the complaint, the plaintiffs may test the validity of the order

sustaining the demurrer by filing an appeal from the ensuing judgment of dismissal.

(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312;

Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.)

In reviewing a demurrer order, we independently evaluate the challenged pleading,

construing it liberally, giving it a reasonable interpretation, reading it as a whole, and

viewing its parts in context. (Milligan v. Golden Gate Bridge Highway & Transportation

Dist. (2004) 120 Cal.App.4th 1, 5-6 (Milligan).) We treat the demurrer as admitting all

material facts properly pleaded, but we do not assume the truth of contentions, deductions

or conclusions of law. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967.)

We determine de novo whether the factual allegations of the challenged pleading are

8

adequate to state a cause of action under any legal theory. (Milligan, supra, 120

Cal.App.4th at p. 6.) The constitutionality of an ordinance is also a question of law for

our independent review. (Garcia v. Four Points Sheraton LAX (2010) 188 Cal.App.4th

364, 381; Samples v. Brown (2007) 146 Cal.App.4th 787, 799.)

The plaintiffs bear the burden of demonstrating that the demurrer was sustained

erroneously. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado

(2011) 200 Cal.App.4th 1470, 1485.) We will affirm the judgment if proper on any

grounds stated in the demurrer, whether or not the trial court acted on that ground.

(Carman v. Alvord (1982) 31 Cal.3d 318, 324.)

It is the responsibility of the appellant, here the plaintiffs, to support claims of

error with meaningful argument and citation to authority. (Cal. Rules of Court, rule

8.204(a)(1)(B); Badie v. Bank of Am. (1998) 67 Cal.App.4th 779, 784-785.) When legal

argument with citation to authority is not furnished on a particular point, we may treat the

point as forfeited and pass it without consideration. (Okasaki v. City of Elk Grove (2012)

203 Cal.App.4th 1043, 1045, fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.)

In addition, citing cases without any discussion of their application to the present case

results in forfeiture. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th

857, 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th

466, 482-483.) We are not required to examine undeveloped claims or to supply

arguments for the litigants. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-

985; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [it is not the

court’s function to serve as the appellant’s backup counsel].)

Moreover, we do not consider points raised for the first time in the reply brief

absent a showing of good cause for the failure to present them earlier. (Garcia v.

McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Neighbours v. Buzz Oates Enterprises

(1990) 217 Cal.App.3d 325, 335, fn. 8 (Neighbours).) This rule is based on

considerations of fairness; withholding a point until the closing brief deprives the

9

opposing party of the opportunity to file a written response unless supplemental briefing

is ordered. (Neighbours, supra, 217 Cal.App.3d at p. 335.)

DISCUSSION

I

Plaintiffs assert a number of arguments claiming the trial court erred in sustaining

the demurrer on their first cause of action for declaratory judgment. Plaintiffs contend

the trial court erred because (A) a demurrer to a declaratory relief cause of action must be

overruled whenever an actual controversy is alleged, (B) plaintiffs adequately stated a

facial void-for-vagueness challenge to the camping ordinance, and (C) plaintiffs

adequately stated an as-applied constitutional challenge to the ordinance based on (1) the

Eighth Amendment prohibition against cruel and unusual punishment, (2) the right to

travel, (3) equal protection and class-based discrimination, (4) arbitrary and

discriminatory enforcement of laws, (5) substantive due process, and (6) protections

regarding vague laws. We address each argument in turn.

A

Plaintiffs claim the trial court should not have sustained the demurrer on their first

cause of action for declaratory judgment because plaintiffs established the existence of an

actual controversy. They claim a demurrer to a declaratory relief cause of action must be

overruled whenever an actual controversy is alleged. We disagree.

Plaintiffs rely on Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82

Cal.App.4th 592 and Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th

734, but those cases are inapposite as they involved orders disposing of a declaratory

relief cause of action following the grant of judgment on the pleadings or the sustaining

of a demurrer without leave to amend. (Ludgate, supra, 82 Cal.App.4th at pp. 596-597;

Qualified Patients, supra, 187 Cal.App.4th at p. 741.) Unlike in those cases, here the

trial court sustained the demurrer with leave to amend but plaintiffs elected not to amend

their complaint.

10

Nonetheless, even where the trial court sustains a demurrer without leave to

amend, we do not reverse the judgment if the trial court’s legal rulings are correct or

when a different result would not be obtained. (Taxpayers for Improving Public Safety v.

Schwarzenegger (2009) 172 Cal.App.4th 749, 769; Coffman Specialties, Inc. v.

Department of Transportation (2009) 176 Cal.App.4th 1135, 1144; Helmer v. Miller

(1993) 19 Cal.App.4th 1565, 1569; Teachers Management & Inv. Corp. v. City of Santa

Cruz (1976) 64 Cal.App.3d 438, 449; Tiburon v. Northwestern P. R. Co. (1970) 4

Cal.App.3d 160, 172, fn. 5; Peters v. State of California (1987) 188 Cal.App.3d 1421,

1424.) A general demurrer to a declaratory relief cause of action is proper when the

plaintiff does not allege facts sufficient to state the derivative claim. (Code Civ. Proc.,

§ 430.10, subd. (e); Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794,

800.) Because plaintiffs’ declaratory judgment cause of action is based on their facial

and as-applied challenges, the cause of action is dependent on the sufficiency of those

claims.

B

Plaintiffs next contend the trial court should not have sustained the demurrer on

their first cause of action for declaratory judgment because they adequately stated a facial

void-for-vagueness challenge to the camping ordinance.

A facial challenge to the constitutional validity of an ordinance considers only the

text of the ordinance, not its application to the plaintiffs’ particular circumstances. (Tobe,

supra, 9 Cal.4th at p. 1084.) Our analysis begins with the strong presumption that the

ordinance is constitutionally valid. (Id. at p. 1107; City of San Diego v. Boggess (2013)

216 Cal.App.4th 1494, 1503 (City of San Diego).) We resolve all doubts in favor of the

validity of the ordinance. (City of San Diego, supra, 216 Cal.App.4th at p. 1503.) Unless

conflict with a provision of the state or federal Constitution is clear and unmistakable, we

must uphold the ordinance. (Ibid.; Samples v. Brown, supra, 146 Cal.App.4th at p. 799

[same].) Plaintiffs bear the burden of demonstrating that the ordinance is

11

unconstitutional in all or most cases. (City of San Diego, supra, 216 Cal.App.4th at

p. 1504.)

Protections against vagueness are based on due process. To satisfy the

constitutional requirement of due process of law, a penal statute must (1) be sufficiently

definite to provide adequate notice of the conduct proscribed, and (2) provide sufficiently

definite guidelines for the police in order to prevent arbitrary and discriminatory

enforcement. (Tobe, supra, 9 Cal.4th at pp. 1106-1107.) However, no more than a

reasonable degree of certainty is required. (People ex rel. Gallo v. Acuna (1997)

14 Cal.4th 1090, 1117.) Thus, a statute is not void for uncertainty if any reasonable and

practical construction can be given to its language. (Tobe, supra, 9 Cal.4th at p. 1107.)

And “ ‘[o]ften the requisite standards of certainty can be fleshed out from otherwise

vague statutory language by reference to any of the following sources: (1) long

established or commonly accepted usage; (2) usage at common law; (3) judicial

interpretations of the statutory language or of similar language; [and] (4) legislative

history or purpose. [Citation.]’ ” (Ewing v. City of Carmel-By-The-Sea (1991)

234 Cal.App.3d 1579, 1594; see also Samples v. Brown, supra, 146 Cal.App.4th at pp.

802-804.)

Plaintiffs claim the camping ordinance is unconstitutionally vague on its face

because it does not contain standards to protect against arbitrary and discriminatory

enforcement.1 But their contention fails because the ordinance clearly applied to their

1 In their reply brief, plaintiffs assert for the first time that the ordinance is facially

invalid because it violates equal protection, substantive due process, the prohibition

against cruel and unusual punishment, and the right to travel. Plaintiffs do not explain

why they did not assert these facial contentions in their opening brief. Accordingly, we

limit our review to the claim that the ordinance is facially invalid because it is

unconstitutionally vague. (Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10;

Neighbours, supra, 217 Cal.App.3d at p. 335, fn. 8.) In any event, a facial challenge on

the additional grounds raised in the reply brief appears to lack merit. The ordinance, on

12

conduct, i.e., living temporarily outdoors or living in a tent on private property for more

than one consecutive night without a City permit. (Sac. City Code, supra, at

§§ 12.52.020, 12.52.030; Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455

U.S. 489, 495 [71 L.Ed.2d 362, 369] [a facial challenge on vagueness grounds cannot

succeed where the plaintiff engaged in some conduct that is clearly proscribed by the

statute]; Tobe, supra, 9 Cal.4th at pp. 1095-1096 [same]; Joel v. City of Orlando (11th

Cir. 2000) 232 F.3d 1353, 1359 [same].) On its face, the ordinance makes it unlawful for

a person to “camp,” occupy “camp facilities,” or use “camp paraphernalia” in any “public

property” or any “private property.” (Sac. City Code, supra, at § 12.52.030.) The word

“camp” means “to place, pitch or occupy camp facilities; to live temporarily in a camp

facility or outdoors; to use camp paraphernalia.” (Sac. City Code, supra, at § 12.52.020.)

“ ‘Camp facilities’ include, but are not limited to, tents, huts, vehicles, vehicle camping

outfits or temporary shelter.” (Ibid.) “ ‘Camp paraphernalia’ includes, but is not limited

to, bedrolls, tarpaulins, cots, beds, sleeping bags, hammocks or cooking facilities and

similar equipment.” (Ibid.) “Public property” means all public property including

streets, sidewalks, alleys, improved or unimproved land, and parks. (Ibid.)2 “Private

its face, does not restrict travel into or out of the City, does not discriminate based on

residency or duration of residency, and does not disclose the intent to discriminate against

the homeless. Unlike the “Declaration of Urgency” made by the City Council in Parr,

supra, 3 Cal.3d 861, here plaintiffs do not allege that the City made an official

pronouncement to discriminate against the homeless.

2 Pursuant to California Rules of Court, rule 8.254, plaintiffs filed a letter notifying us of

Desertrain v. City of Los Angeles (9th Cir. 2014) 754 F.3d 1147. That case involved a

facial vagueness challenge to a Los Angeles ordinance which prohibited the “use [of] a

vehicle parked or standing upon any City street, or upon any parking lot owned by the

City of Los Angeles and under the control of the City of Los Angeles or under control of

the Los Angeles County Department of Beaches and Harbors, as living quarters either

overnight, day-by-day, or otherwise.” (Id. at p. 1149.) The terms the Ninth Circuit Court

of Appeal found unconstitutionally vague in the ordinance at issue in Desertrain v. City

of Los Angeles are not found in the ordinance challenged in this case. (Id. at pp. 1155-

1156.)

13

property” means all private property including improved or unimproved land. (Ibid.)

The ordinance does not prohibit overnight camping on private residential property by

friends or family of the property owner, so long as the owner consents and the overnight

camping is limited to not more than one consecutive night. (Sac. City Code, supra, at

§ 12.52.030.)

In their appellate reply brief, plaintiffs assert for the first time that the terms

“friend,” “temporary shelter” and “one consecutive night” in the ordinance are also

vague. We do not consider those contentions because plaintiffs did not raise them in their

opening brief and there is no explanation for the delay in presenting those claims.

(Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10; Neighbours, supra,

217 Cal.App.3d at p. 335, fn. 8.) We also do not consider plaintiffs’ claim that the phrase

“to live temporarily . . . outdoors” in the ordinance is vague because plaintiffs raised it for

the first time on appeal at oral argument. (Santa Clara County Local Transp. Auth. v.

Guardino (1995) 11 Cal.4th 220, 232, fn. 6.)

The trial court properly sustained the demurrer to the first cause of action based on

a facial challenge to the ordinance on vagueness grounds.

C

Plaintiffs claim the trial court should not have sustained the demurrer on their first

cause of action for declaratory judgment because they adequately stated an as-applied

constitutional challenge to the camping ordinance.

An as-applied challenge asserts that the manner of enforcement against an

individual or class of individuals or the circumstances in which the ordinance is applied is

unconstitutional. (Tobe, supra, 9 Cal.4th at p. 1089.) “It contemplates analysis of the

facts of a particular case or cases to determine the circumstances in which the . . .

ordinance has been applied and to consider whether in those particular circumstances the

application deprived the individual to whom it was applied of a protected right.

[Citations.] When a criminal defendant claims that a facially valid statute or ordinance

14

has been applied in a constitutionally impermissible manner to the defendant, the court

evaluates the propriety of the application on a case-by-case basis to determine whether to

relieve the defendant of the sanction.” (Id. at p. 1084.) As with a facial challenge, we

presume the ordinance is constitutional and must uphold it “unless its unconstitutionality

‘clearly, positively and unmistakably appears.’ ” (Hale v. Morgan (1978) 22 Cal.3d 388,

404.)

Specifically, plaintiffs’ as-applied challenge asserts arguments based on (1) the

Eighth Amendment prohibition against cruel and unusual punishment, (2) the right to

travel, (3) equal protection and class-based discrimination, (4) arbitrary and

discriminatory enforcement of laws, (5) substantive due process, and (6) protections

regarding vague laws. 3

1

Plaintiffs claim the camping ordinance, as applied to them, violated their Eighth

Amendment right to be free from cruel and unusual punishment. They say the ordinance

violates the Eighth Amendment by “criminalizing the homeless condition.”

The Eighth Amendment prohibits the infliction of cruel and unusual punishment in

three ways: it limits the type of punishment that can be imposed on those convicted of

crimes; it proscribes punishment grossly disproportionate to the severity of the crime; and

it imposes substantive limits on what can be made criminal. (Ingraham v. Wright (1977)

430 U.S. 651, 667 [51 L.Ed.2d 711, 727-728].) The last limitation, which is at issue here,

is “to be applied sparingly.” (Ibid.)

3 The trial court did not address plaintiffs’ right to travel, substantive due process and

vagueness claims because the parties did not explicitly discuss those claims.

Nonetheless, plaintiffs assert the right to travel, substantive due process and vagueness

claims in their as-applied challenge on appeal. The City does not argue that plaintiffs are

now barred from asserting the claims.

15

In Robinson, supra, 370 U.S. 660, the United States Supreme Court struck down a

California statute which made it unlawful to be addicted to the use of narcotics. (Id. at

pp. 660, fn. 1, 667 [8 L.Ed.2d at p. 759, fn. 1, 763].) The Supreme Court recognized that

the State can regulate the use of narcotics. (Id. at p. 664 [8 L.Ed.2d at p. 761].) But it

said the challenged statute and its construction by the state courts criminalized the status

of narcotic addiction, irrespective of whether the defendant ever used or possessed any

narcotic within the state or engaged in any antisocial behavior there. (Id. at p. 666 [8

L.Ed.2d at p. 763].) The Supreme Court likened the challenged statute to one that made

it a crime for a person to be mentally ill or a leper. (Ibid.)

Under Robinson, criminalizing the status of being addicted to narcotics violates

the Eighth Amendment, but punishing the conduct of using narcotics, even by a narcotics

addict, is not impermissible punishment for status. (Tobe, supra, 9 Cal.4th at p. 1105.)

About six years after Robinson, the United States Supreme Court considered an

Eighth Amendment challenge to a Texas statute that made it a crime to “ ‘get drunk or be

found in a state of intoxication in any public place.’ ” (Powell v. Texas (1968) 392 U.S.

514, 517, 532 [20 L.Ed.2d 1254, 1258, 1267] (Powell).) Although the defendant was a

chronic alcoholic, a plurality of the Supreme Court upheld the statute because it punished

behavior (being drunk in public) that society had an interest in preventing; it did not

punish the defendant’s status. (Ibid.) The plurality refused to read Robinson as finding

an Eighth Amendment violation based on an involuntary condition or a condition

occasioned by compulsion. (Id. at p. 533 [20 L.Ed.2d at p. 1268].) The plurality said

such an interpretation of Robinson would lead to a slippery slope: “it is difficult to see

any limiting principle that would serve to prevent this Court from becoming, under the

aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards

of criminal responsibility . . . .” (Ibid.) “If Leroy Powell cannot be convicted of public

intoxication, it is difficult to see how a State can convict an individual for murder, if that

individual, while exhibiting normal behavior in all other respects, suffers from a

16

‘compulsion’ to kill . . . .” (Id. at p. 534) The plurality said “[t]raditional common-law

concepts of personal accountability and essential considerations of federalism” led them

to reject the proposition that criminal penalties may not be imposed for a condition the

defendant was powerless to change. (Id. at pp. 533-535 [20 L.Ed.2d at pp. 1268-1269];

Lehr v. City of Sacramento (E.D.Cal. 2009) 624 F.Supp.2d 1218, 1231 [expressing the

same concerns in a case challenging the constitutionality of Sacramento’s ordinance];

Joyce v. City & County of San Francisco (N.D.Cal. 1994) 846 F.Supp. 843, 858 [same in

a case challenging the City of San Francisco’s actions in connection with the homeless].)

The Powell plurality also said it could not conclude the defendant suffered from an

irresistible compulsion to drink and to get drunk in public. (Powell, supra, 392 U.S. at p.

535 [20 L.Ed.2d at p. 1269].)

In his concurring opinion in Powell, Justice White said it is not a crime to drink

alcohol when the defendant has an irresistible compulsion to drink. (Powell, supra, 392

U.S. at pp. 548-549, 552, fn. 4 [20 L.Ed.2d at pp. 1276, 1278, fn. 4].) However, Justice

White concluded the conviction should stand because there was no evidence the

defendant could not stay off the streets on the night in question or that his extreme

drunkenness sufficiently deprived him of his faculties that night. (Id. at pp. 552-554 [20

L.Ed.2d at pp. 1278-1279].)

Some courts have interpreted Robinson and Powell as holding that the Eighth

Amendment prohibits punishment of an act which is derivative of a person’s status or

involuntary condition, i.e., that it violates the Eighth Amendment to punish an act which

is an unavoidable consequence of a person’s status. (Pottinger v. Miami (S.D. Fla. 1992)

810 F.Supp. 1551, 1562-1565 (Pottinger) [punishing the homeless for harmless acts they

are forced to perform in public because of their involuntary condition of being homeless

is cruel and unusual]; Jones v. City of L.A. (9th Cir. 2006) 444 F.3d 1118, 1135-1137,

opinion vacated following settlement in Jones v. City of L.A. (9th Cir. 2007) 505 F.3d

1006 [the Eighth Amendment prohibits the state from punishing a person for the

17

unavoidable consequences of being involuntarily homeless, i.e., sitting, lying down or

sleeping in a public place].)

But being homeless is not necessarily equivalent to an involuntary condition or

status. (Tobe, supra, 9 Cal.4th at p. 1105 [homelessness is not readily classified as a

status]; Lehr v. City of Sacramento, supra, 624 F.Supp.2d at p. 1222 [no generalization

can describe the diverse population of homeless people in Sacramento]; Joyce v. City &

County of San Francisco, supra, 846 F.Supp. at pp. 857-858 [as an analytical matter,

homelessness is not readily classified as a status].) What constitutes a status “might

elude perfect definition,” but factors such as the involuntary acquisition of the

characteristic (including whether the characteristic was present at birth) and the degree to

which a person has control over that characteristic determine whether a characteristic is a

status. (Tobe, supra, 9 Cal.4th at p. 1105.)

In Tobe, the California Supreme Court rejected the plaintiffs’ Eighth Amendment

claim because it was not shown that the plaintiffs had no alternative to homelessness, to

the conduct that led them to homelessness, or to the violations under the ordinance.

(Tobe, supra, 9 Cal.4th at pp. 1105-1106.) The Supreme Court reached that conclusion

despite evidence that on any given night at least 2,500 homeless persons in the city did

not have shelter beds available to them. (Id. at p. 1083.)

Here, the first amended complaint does not allege facts indicating that plaintiffs’

homelessness is a status. It alleges that the homeless plaintiffs had no shelter available to

them when City police officers detained and arrested them for violating the ordinance,

but it does not allege why plaintiffs had no shelter. (See Joyce v. City & County of San

Francisco, supra, 846 F.Supp. at p. 857 [refusing to find a status based on the

discretionary acts of the city in failing to provide sufficient housing for the homeless];

Lehr v. City of Sacramento, supra, 624 F.Supp.2d at p. 1232 [same].) Plaintiffs elected

not to file a second amended complaint.

18

Other courts have declined to interpret Robinson and Powell as holding that the

Eighth Amendment bars punishment of an act derivative of a person’s status. (Joyce v.

City & County of San Francisco, supra, 846 F.Supp. at pp. 856-857 [extending Eighth

Amendment protection to acts derivative of status is a dubious extension of Robinson and

Powell, and questionable in light of concerns implicating federalism and the proper role

of the court in such adjudications]; Lehr v. City of Sacramento, supra, 624 F.Supp.2d at

pp. 1231-1232 [disagreeing with Jones v. City of L.A., supra, 444 F.3d 1118].) In fact,

the California Supreme Court said Robinson and Powell did not hold that the Eighth

Amendment prohibits punishment for acts derivative of a person’s status. (Tobe, supra, 9

Cal.4th at p. 1105.)

While the Court in Robinson observed that narcotic addiction is an illness which

may be contracted innocently or involuntarily, it did not say involuntariness made

narcotic addiction a status for which a person cannot constitutionally be punished.

(Robinson, supra, 370 U.S. at p. 667 [8 L.Ed.2d at p. 763].) The Court focused instead

on whether the defendant committed a prohibited act. (Id. at p. 667 [8 L.Ed.2d at

p. 763].) That is our focus too. (Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455.)

Sacramento’s ordinance punishes the acts of camping, occupying camp facilities,

and using camp paraphernalia, not homelessness. (Sac. City Code, supra, at § 12.52.030;

Lehr v. City of Sacramento, supra, 624 F.Supp.2d at p. 1231.) The ordinance is

distinguishable from the statute in Robinson, which criminalized the status of being

addicted to narcotics and did not require any act by the defendant. (Robinson, supra,

370 U.S. at p. 666 [8 L.Ed.2d at p. 763].) Because the Eighth Amendment does not

prohibit the punishment of acts (Tobe, supra, 9 Cal.4th at p. 1105; Lehr v. City of

Sacramento, supra, 624 F.Supp.2d at pp. 1232, 1234; People v. Kellogg, supra,

119 Cal.App.4th at pp. 596, 602-604), plaintiffs’ challenge based on cruel and unusual

punishment lacks merit.

19

2

Plaintiffs also claim the ordinance, as applied to them, infringes on their constitutional

right to travel.

The right to freedom of travel is constitutionally protected. (Tobe, supra, 9

Cal.4th at pp. 1096-1100.) Even so, our state courts have found a violation of the

constitutional right of intrastate travel only when there is a direct restriction on the right

to travel, such as where a parent is ordered to move to another county as a condition of

continued custody of a child. (Id. at p. 1101.) Otherwise lawful ordinances that have an

indirect or incidental impact on the right to travel and do not discriminate among classes

of persons by penalizing the exercise of the right to travel are not constitutionally

impermissible. (Id. at p. 1100.)

While the camping ordinance might discourage some homeless persons from

traveling into the City, it does not directly restrict the right to travel. (Tobe, supra, 9

Cal.4th at p. 1102 [an ordinance that bans camping and storing personal possessions on

public property does not directly impede the right to travel]; Sanchez v. City of Fresno

(E.D. Cal. 2012) 914 F.Supp.2d 1079, 1109-1111 (Sanchez) [dismissing violation of right

to travel claim even though the complaint alleged defendants’ policies singled out the

homeless; seizing and destroying the property of homeless persons had an incidental

impact on travel]; Johnson v. City of Dallas (N.D. Texas 1994) 860 F.Supp. 344, 346,

354, reversed on another ground in Johnson v. City of Dallas (5th Cir. 1995) 61 F.3d 442

[ordinances that prohibit sleeping in public space do not implicate the right to travel].)

The ordinance does not bar anyone from entering into or leaving the City.

Plaintiffs nevertheless claim that homeless persons are effectively prevented from

traveling to Sacramento. They also allege, however, that they reside in the City,

indicating that the camping ordinance did not bar their entry into the City if they traveled

there. While laws that use a classification that serves to penalize the exercise of the right

to travel are unconstitutional (Sanchez, supra, 914 F.Supp.2d at p. 1109), the first

20

amended complaint does not allege the homeless plaintiffs were punished because they

exercised their right to travel to Sacramento. The first amended complaint alleges

plaintiffs were penalized for illegal camping.

Plaintiffs also complain that the City prevented them from remaining in particular

areas within the City. However, the right to travel does not give plaintiffs the right to live

or stay where they want. (Tobe, supra, 9 Cal.4th at p. 1103; see also Davison v. City of

Tucson (D.Ariz. 1996) 924 F.Supp. 989, 993 [right to travel is not implicated where

homeless plaintiffs do not seek to travel anywhere and seek only to remain in the city].)

And the City has no constitutional obligation to provide homeless persons with

accommodations to facilitate their exercise of the right to travel. (Tobe, supra, 9 Cal.4th

at p. 1103.)

In addition, unlike the state law challenged in Attorney General of N.Y. v. Soto-

Lopez (1986) 476 U.S. 898, 905 [90 L.Ed.2d 899, 907], Sacramento’s ordinance does not

distinguish between residents and non-residents or on the basis of the duration of

residency, classifications which have been held to violate the right to travel. (Tobe,

supra, 9 Cal.4th at p. 1101 [ordinance was nondiscriminatory in right to travel context

because it applied to residents and nonresidents alike].) Plaintiffs assert we should not

consider the California Supreme Court’s analysis in Tobe, supra, 9 Cal.4th 1069, because

the ordinance in that case did not ban camping on private property. But the Supreme

Court’s reasoning was not based on whether the ban applied to public or private property.

(Id. at pp. 1096-1104.)

Plaintiffs also cite Pottinger, supra, 810 F.Supp. 1551. The district court in that

case held the city’s enforcement of ordinances, such as those for loitering and for

obstructing the sidewalk, significantly burdened the right of the homeless to travel. (Id.

at pp. 1580-1581.) Subjecting the city’s enforcement activities to strict scrutiny, the

district court concluded the city’s interest in maintaining public areas and promoting

tourism and business in its downtown area was not compelling, and its actions were not

21

narrowly tailored to achieve its objective of preventing health hazards. (Id. at pp. 1581-

1582.)

Pottinger is not controlling for a number of reasons. The ordinances at issue in

Pottinger were broader in scope than the ordinance at issue in this case. (Pottinger,

supra, 810 F.Supp. at pp. 1554-1555 [homeless persons were punished for sleeping,

eating, standing and congregating in public places].) In addition, the cases cited in

Pottinger involved the grant or denial of benefits based on past residency or duration of

residency or laws that barred or expressly regulated travel. (Pottinger, supra, 810

F.Supp. at pp. 1578-1580.) Such measures, which have been found to infringe on the

fundamental right to travel, are not found in Sacramento’s ordinance. Moreover,

Pottinger has been rejected by other courts. (Sanchez, supra, 914 F.Supp.2d at p. 1111

[the bulk of authority has rejected or declined to follow Pottinger’s right to travel holding

in cases concerning policies designed to prevent homeless persons from erecting shelters

and/or leaving their belongings in particular places]; Davison v. City of Tuscon, supra,

924 F.Supp. at p. 994 [Pottinger has been rejected in at least four other cases]; Joyce v.

City & County of San Francisco, supra, 846 F.Supp. at pp. 860-861 [refusing to follow

Pottinger].) And we are not bound to follow the decisions of lower federal courts.

(People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)

We conclude the first amended complaint does not state a cause of action based on

the infringement of plaintiffs’ right to travel because the ordinance has only an indirect

impact on the right to travel and the first amended complaint does not allege plaintiffs

were punished for exercising their right to travel.

3

Plaintiffs next claim the ordinance, as applied to them, violated their right to equal

protection of the laws and to be free from class-based discrimination.

Equal protection under the federal and California Constitutions requires equal

treatment of persons similarly situated. (City of Cleburne v. Cleburne Living Center, Inc.

22

(1985) 473 U.S. 432, 439 [87 L.Ed.2d 313, 320] (Cleburne); Brown v. Merlo (1973) 8

Cal.3d 855, 861.) Even when a law is nondiscriminatory on its face, equal protection is

violated if the law is applied in a manner that discriminates against a particular group.

(U. S. Dept. of Agriculture v. Moreno (1973) 413 U.S. 528, 534-535 [37 L.Ed.2d 782,

788]; Joyce v. City & County of San Francisco, supra, 846 F.Supp. at p. 858 [“a neutral

law found to have a disproportionately adverse effect upon a minority classification will

be deemed unconstitutional only if that impact can be traced to a discriminatory

purpose”].)

“[I]f the constitutional conception of ‘equal protection of the laws’ means

anything, it must at the very least mean that a bare . . . desire to harm a politically

unpopular group cannot constitute a legitimate governmental interest.” (U. S. Dept. of

Agriculture v. Moreno, supra, 413 U.S. at pp. 534-535 [37 L.Ed.2d at p. 788], italics

omitted; Parr, supra, 3 Cal.3d at pp. 868, 864-868 [equal protection clause requires

statutory classifications to be related to permissible purposes].) Even under the more

lenient rational relationship test, discriminatory animus toward a group is not a valid state

objective. (Cleburne, supra, 473 U.S. at pp. 446-447 [87 L.Ed.2d at p. 325] [irrational

prejudice against the “mentally retarded”]; U. S. Dept. of Agriculture v. Moreno, supra,

413 U.S. at pp. 534-535 [37 L.Ed.2d at p. 788] [discrimination against “hippies”].)

The first amended complaint alleges the City selectively enforces the camping

ordinance against homeless persons and those non-homeless persons who support the

right of the homeless to be in the City. We must read those factual allegations liberally

and assume their truth on a demurrer. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th

at pp. 966-967; Milligan, supra, 120 Cal.App.4th at pp. 5-6.) Contrary to the City’s

assertion, the California Supreme Court in Tobe, supra, 9 Cal.4th 1069 did not decide

what a plaintiff must plead in order to state an equal protection claim. (Id. at p. 1080,

fn. 1.) Although the court in Tobe indicated that the Tobe plaintiffs “did not clearly

allege” an as-applied challenge (id. at p. 1083), that was in a completely different

23

procedural posture. In those consolidated actions, the Zuckernick matter involved

persons charged with violating an ordinance who demurred unsuccessfully to the criminal

complaint and then filed a writ petition to compel the trial court to sustain their

demurrers. (Id. at pp. 1081-1082.) The Supreme Court held the procedural posture of

that action precluded an as-applied challenge. (Id. at p. 1083.) The Tobe matter involved

persons who challenged enforcement of an ordinance by petition for writ of mandate and

appealed the trial court’s order. (Id. at pp. 1081-1082.) The Supreme Court held the

Tobe plaintiffs did not clearly allege an as-applied challenge or seek relief from specific

allegedly impermissible applications of the ordinance. (Id. at p. 1083.) Unlike in Tobe,

the plaintiffs in this case filed a civil complaint asserting an as-applied challenge, not a

petition for writ of mandate or a demurrer to a criminal complaint.

Here, we conclude the allegations are sufficient to state a cause of action for

declaratory relief asserting an as-applied challenge based on equal protection. (Murgia v.

Municipal Court for Bakersfield Judicial Dist. (1975) 15 Cal.3d 286, 301 [allegation of

deliberate practice of discriminatory enforcement of criminal laws against members of a

particular labor organization is sufficient to support equal protection clause claim];

Ashbaucher v. City of Arcata (N.D.Cal., August 19, 2010, No. CV 08-2840 MHP (NJV))

2010 U.S. Dist. Lexis 126627, pp. *47-48 [complaint alleging selective enforcement of

ordinances against the homeless states an equal protection claim]; Anderson v. City of

Portland (D.Or., July 31, 2009, No. 08-1447-AA) 2009 U.S. Dist. Lexis 67519, p. *8

[same].)4 We need not, and do not, determine whether plaintiffs can ultimately prevail

on this cause of action. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)

4 We may cite and rely on unpublished federal district court decisions as persuasive

authority. (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 717, fn. 13.)

24

4

Plaintiffs further claim the camping ordinance, as applied to them, violated their

right to be free from arbitrary and discriminatory enforcement. But they do not explain

why; they merely cite City of Chicago v. Morales (1999) 527 U.S. 41 [144 L.Ed.2d 67],

and Long Beach Area Peace Network v. City of Long Beach (2009) 574 F.3d 1011,

without further argument or explanation.5 Accordingly, the undeveloped claim is

forfeited. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862;

Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [we need not

reach issues presented without argument and we will not develop the appellants’

arguments for them].)

5

In addition, plaintiffs claim the ordinance, as applied to them, violated their right

to substantive due process. But once again, they do not provide any further explanation

in their opening brief. Accordingly, the contention is forfeited for failure to support it

with argument or citation to authority. (Okasaki v. City of Elk Grove, supra, 203

Cal.App.4th at p. 1045, fn. 1; Keyes v. Bowen, supra, 189 Cal.App.4th at p. 656.)

Although plaintiffs made belated arguments relating to substantive due process for the

first time in their reply brief, we do not consider those arguments because plaintiffs do

not explain the delayed presentation of those arguments. (Garcia v. McCutchen, supra,

16 Cal.4th at p. 482, fn. 10; Neighbours, supra, 217 Cal.App.3d at p. 335, fn. 8.)

5 In their reply brief, plaintiffs cite Sanchez, supra, 914 F.Supp.2d 1079, but that case is

inapposite. Unlike in Sanchez, the applicable pleading in this case does not allege that

the City placed plaintiffs in a situation of known danger with deliberate indifference to

their safety. Moreover, plaintiffs did not argue in the trial court that the first amended

complaint states a substantive due process claim based on the “danger creation” doctrine.

(Sanchez, supra, 914 F.Supp.2d at pp. 1101-1102 [discussing “danger creation”

doctrine].)

25

6

Plaintiffs claim the ordinance, as applied to them, violated their right to be free

from vague laws. Once again, however, they forfeited this claim by failing to explain

how the ordinance is vague as applied to them. (Nelson v. Avondale Homeowners Assn.,

supra, 172 Cal.App.4th at p. 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund,

supra, 137 Cal.App.4th at pp. 482-483.) The claim also fails on the merits, because

plaintiffs’ conduct clearly violated the ordinance. The ordinance prohibits placing or

occupying tents on any private property for more than one consecutive night without a

City permit. (Sac. City Code, supra, at § 12.52.030.) The first amended complaint

alleges that plaintiffs “continued to live” at a privately owned lot where they set up tents

for several days.

II

Plaintiffs argue the trial court erred in sustaining the demurrer to the second cause

of action for an injunction. They say their failure to cite “California Civil Code section

526(a)” should not foreclose their ability to seek injunctive relief. We assume they

intended to reference Code of Civil Procedure section 526, subdivision (a).

In any event, we conclude the trial court did not err. The second cause of action

seeks an order enjoining the enforcement of the ordinance. Injunctive relief is a remedy,

not a cause of action. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th

604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) A cause of action

must exist before a court may grant a request for injunctive relief. (County of Del Norte

v. City of Crescent City (1999) 71 Cal.App.4th 965, 973; City of South Pasadena v.

Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 [“ ‘A permanent

injunction is merely a remedy for a proven cause of action. It may not be issued if the

underlying cause of action is not established.’ ”]; Camp v. Board of Supervisors (1981)

123 Cal.App.3d 334, 356.)

26

Although the order sustaining the demurrer was proper because an injunction is

not a cause of action, plaintiffs may still obtain injunctive relief if they prevail on a cause

of action. (6 Witkin, California Procedure (5th ed. 2008) Provisional Remedies, § 331,

pp. 275-276; see, e.g., Attorney General of N.Y. v. Soto-Lopez, supra, 476 U.S. at p. 901

[90 L.Ed.2d at p. 904].)

III

Plaintiffs also contend the first amended complaint states a cause of action for

violation of Civil Code section 52.1.6 Section 52.1, also known as the Tom Bane Civil

Rights Act, authorizes an action for injunctive and other equitable relief where a person,

whether or not acting under color of law, interferes or attempts to interfere, “by threat,

intimidation, or coercion,” with the exercise or enjoyment by any individual or

individuals of rights secured by state or federal law. (§ 52.1, subd. (a).)

We begin by noting what plaintiffs do not assert. The first amended complaint

does not allege the use of excessive or unreasonable force by the police, and plaintiffs do

not contend on appeal that this is an excessive force case. Plaintiffs also do not claim on

appeal that the first amended complaint alleges any intimidation by the City.

Rather, plaintiffs argue the first amended complaint alleges “threats” within the

meaning of section 52.1. Plaintiffs point to the allegations in paragraphs 4 and 10 of the

first amended complaint that City police officers threatened to arrest homeless persons

who had gathered at two locations other than the lot plaintiffs leased in 2009 and also

threatened to confiscate their property. Even if we assume those allegations apply to

plaintiffs, however, “[s]peech alone is not sufficient to support an action brought pursuant

to [section 52.1] subdivision (a) or (b), except upon a showing that the speech itself

threatens violence against a specific person or group of persons; and the person or group

6 Undesignated statutory references are to the Civil Code.

27

of persons against whom the threat is directed reasonably fears that, because of the

speech, violence will be committed against them or their property and that the person

threatening violence had the apparent ability to carry out the threat.” (§ 52.1, subd. (j).)

While plaintiffs say in their reply brief they had a reasonable belief violence would result

should they disobey the orders of the police officers, the first amended complaint does

not allege a police officer threatened any plaintiff with violence.

In addition, plaintiffs argue the first amended complaint sufficiently alleges

“coercion” because City police officers arrested plaintiffs and an arrest is inherently

coercive. The first amended complaint alleges City police officers “forcibly detained”

persons at the lot where plaintiffs lived, “forcibly detained and cited plaintiffs on the

property . . . for illegal camping,” arrested plaintiffs for violating the ordinance,

“coercively violated plaintiffs’ rights under the 4th and 14th Amendments to the U.S.

Constitution (namely, unreasonable search and seizure, violation of due process, and

violation of equal protection of the laws)” and “coercively interfered with the exercise

and/or enjoyment of rights secured by the Constitution of the state of California, Article

1, §§ 1, 7 and 13 (namely, unreasonable search and seizure, deprivation of life, liberty

and property, without due process of law).” Plaintiffs say the actions of the police are

inherently coercive because of their “unique position of trust” in society.

There are two distinct elements for a section 52.1 cause of action. A plaintiff must

show (1) intentional interference or attempted interference with a state or federal

constitutional or legal right, and (2) the interference or attempted interference was by

threats, intimidation or coercion. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334

[section 52.1 requires an attempted or completed act of interference with a legal right,

accompanied by a form of coercion]; Shoyoye v. County of Los Angeles (2012) 203

Cal.App.4th 947, 958 (Shoyoye) [incidental interference brought about by negligent

conduct is not sufficient].) The California Supreme Court has not addressed whether an

unlawful detention or arrest, without more, is sufficient to satisfy both elements of

28

section 52.1. While the California Supreme Court said in Venegas v. County of Los

Angeles (2004) 32 Cal.4th 820 (Venegas) that the plaintiffs in that case stated a section

52.1 cause of action based on an unreasonable search and seizure, the only issue the

Supreme Court considered was whether section 52.1 required a showing that the

defendants acted with discriminatory animus. (Id. at pp. 841, 843 [“All we decide here is

that, in pursuing relief for those constitutional violations under section 52.1, plaintiffs

need not allege that defendants acted with discriminatory animus or intent, so long as

those acts were accompanied by the requisite threats, intimidation, or coercion.”].) A

case is not authority for propositions not considered and decided.7 (In re Chavez (2003)

30 Cal.4th 643, 656.)

Nonetheless, Shoyoye, supra, 203 Cal.App.4th 947, is instructive. In that case, the

plaintiff was lawfully arrested but was held more than two weeks after the order for his

release; a county employee mistakenly attached information about another person to the

defendant’s paperwork. (Id. at pp. 951-953.) The plaintiff claimed interference with his

constitutional right to be secure against unreasonable seizure. (Id. at p. 955.) Relying on

a case which adopted the analysis in Longval v. Commissioner of Correction (1989) 535

N.E.2d 588 [404 Mass. 325] (Longval), the appellate court in Shoyoye held that where

coercion is inherent in the constitutional violation alleged, as it is in an unreasonably

prolonged detention, section 52.1 requires a showing of coercion independent from the

7 For the same reason, Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033

(Gillan), a case plaintiffs cite, is not helpful. There is no discussion in Gillan about what

constitutes “threats, intimidation, or coercion” under section 52.1. Plaintiffs cite Quinn v.

Fresno County Sheriff (E.D.Cal., Dec. 14, 2012, No. 1:10-CV-01617 LJO BAM) 2012

WL 6561562 (Quinn) for the first time in their reply brief. Even if it were proper for us

to consider Quinn, it is not persuasive because it failed to apply the reasoning in Shoyoye,

supra, 203 Cal.App.4th 947, and relied instead on Gillan, a case which, as we have

explained, did not analyze the “threats, intimidation, or coercion” element of section

52.1. (Quinn, supra, 2012 WL 6561562, at p. *5.)

29

coercion inherent in the wrongful detention. (Shoyoye, supra, 203 Cal.App.4th at pp.

959-960 [citing Gant v. County of Los Angeles (C.D.Cal. 2011) 765 F.Supp.2d 1238].)8

The court in Longval, supra, 535 N.E.2d 588, construed the Massachusetts Civil

Rights Act of 1979, upon which California modeled section 52.1.9 Longval involved the

transfer of the plaintiff to an administrative segregation unit in another prison allegedly

without a required hearing and without required approvals. (Longval, supra, 535 N.E.2d

at p. 590.) The Massachusetts Supreme Court ruled the use of force by prison officials in

placing a prisoner in the segregated unit does not constitute coercion under the

Massachusetts Civil Rights Act, even if it turned out the prison officials had no lawful

right to take that action. (Id. at pp. 590, 593.) The Court in Longval said conduct that

“take[s] someone’s rights away directly,” even if unlawful, does not satisfy the

requirement of “threats, intimidation or coercion” under the Massachusetts Civil Rights

Act. (Longval, supra, 535 N.E.2d at p. 593; see also Santiago v. Keyes (D.Mass. 2012)

890 F.Supp.2d 149, 155-156 [the constitutional violation itself cannot also serve as the

8 The district court in Gant adopted the holding in Longval, stating that when use of

force is intrinsic to the alleged constitutional violation, it cannot also satisfy the

additional “coercion” element of section 52.1. (Gant, supra, 765 F.Supp.2d at p. 1253.)

The Ninth Circuit Court of Appeals recently reversed the district court’s judgment in part

because, as to one of the public entity defendants, the appellate court found a genuine

issue of fact regarding whether police officers coerced the plaintiff to make an untrue

statement. (Gant v. County of Los Angeles (9th Cir. 2014) 772 F.3d 608, 623-624.) The

Ninth Circuit did not disagree with the district court’s interpretation of section 52.1, and

affirmed the district court’s judgment as to the plaintiffs’ other section 52.1 claims in a

separately issued memorandum. (Id. at p. 623, fn. 1; Gant v. County of Los Angeles (9th

Cir. Nov. 24, 2014) 2014 U.S. App. Lexis 22192, at pp. *4, 9.)

9 Like California, Massachusetts authorizes a personal right of action “[w]henever any

person or persons, whether or not acting under color of law, interfere by threats,

intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with

the exercise or enjoyment by any other person or persons of rights secured by the

constitution or laws of the United States, or of rights secured by the constitution or laws

of the commonwealth.” (Mass. Gen. Laws Ann. ch. 12, §§ 11H, 11I.)

30

prerequisite conduct under the Massachusetts Civil Rights Act; the statute requires

threats, coercion or intimidation in addition to a constitutional violation, and the plaintiff

cannot graft one act onto two distinct burdens].)

Similar to Shoyoye, this case involves an allegedly unlawful arrest but no alleged

coercion beyond the coercion inherent in any arrest. (Cf. Bender v. County of Los

Angeles (2013) 217 Cal.App.4th 968, 978 [although coercion is inherent in any arrest,

where an arrest is unlawful and excessive force is applied, there is coercion independent

of the wrongful detention].) Consistent with Shoyoye, we conclude a wrongful arrest or

detention, without more, does not satisfy both elements of section 52.1. (Shoyoye, supra,

203 Cal.App.4th at p. 960.) The conclusory allegations of “forcible” and “coercive”

interference with plaintiffs’ constitutional rights are inadequate to state a cause of action

for a violation of section 52.1. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp.

966-967 [we do not assume the truth of conclusions of law]; Maystruk v. Infinity Ins. Co.

(2009) 175 Cal.App.4th 881, 888 [conclusions without allegations of facts were fatal to

the complaint].)

Plaintiffs cite Cole v. Doe (N.D.Cal. 2005) 387 F.Supp.2d 1084 (Cole), Butler v.

City of Sacramento (E.D.Cal., Aug. 7, 2007, No. CIV. S-07-755 LKK/DAD) 2007 WL

2275218 (Butler), and Ohlsen v. County of San Joaquin (E.D.Cal., June 4, 2008, No.

2:06-CV-2361-GEB-GGH) 2008 WL 2331996 (Ohlsen). Cole predates Shoyoye. The

district court in Cole held that the use of law enforcement authority to effectuate a stop,

detention and search can constitute interference with the plaintiff’s right to be free from

an unreasonable search or seizure by threat, intimidation or coercion if the officer lacked

probable cause to stop, detain and search the plaintiff. (Cole, supra, 387 F.Supp.2d at p.

1103.) Butler and Ohlsen rely on the holding in Cole. (Butler, supra, 2007 WL

2275218, at pp. *6-7; Ohlsen, supra, 2008 WL 2331996, at p. *4.) But none of the cases

the district court in Cole relied upon -- Venegas, supra, 32 Cal.4th 820, Jones v. Kmart

Corp., supra, 17 Cal.4th 329, or Whitworth v. City of Sonoma (September 22, 2004,

31

A103342) [nonpub. opn.] -- held that a wrongful arrest or detention, without more,

constitutes threats, intimidation or coercion under section 52.1 where the arrest is itself

the alleged constitutional violation. (Cole, supra, 387 F.Supp.2d at p. 1103.) Hence,

Cole is not persuasive. (Shoyoye, supra, 203 Cal.App.4th at p. 960 [also rejecting Cole].)

Plaintiffs also rely on Moreno v. Town of Los Gatos (9th Cir. 2008) 267 Fed.Appx.

665 (Moreno), another case which predates Shoyoye. The court in Moreno said the

plaintiffs stated a section 52.1 cause of action by alleging that police officers threatened

to arrest some of the plaintiffs and actually arrested others. (Moreno, supra, 267

Fed.Appx. at p. 666.) But again, the holding in Moreno was based on Venegas, supra, 32

Cal.4th 820, Jones v. Kmart Corp., supra, 17 Cal.4th 329, and another case, Stamps v.

Superior Court (2006) 136 Cal.App.4th 1441. (Moreno, supra, 267 Fed.Appx. at p. 666.)

Because none of those cases addressed whether an arrest or threat of arrest constitutes

threats, intimidation or coercion, Moreno is also not persuasive.

Plaintiffs further argue in their reply brief that even if they are required to allege

facts showing threats, intimidation or coercion independent of the coercion inherent in a

wrongful arrest or detention, they can do so because the enactment of the ordinance is the

alleged constitutional violation, and the arrest of plaintiffs is an act of coercion

independent of the enactment of the ordinance. But plaintiffs raised this argument for the

first time in their reply brief, they did not assert it in the trial court, and they do not cite

legal authority supporting their theory. “Obvious reasons of fairness militate against our

considering this poorly developed and untimely argument.” (Garcia v. McCutchen,

supra, 16 Cal.4th at p. 482, fn. 10.)

32

DISPOSITION

The judgment is reversed as to the first cause of action for declaratory judgment

asserting an as-applied challenge based on equal protection. The judgment is affirmed in

all other respects. The parties shall bear their own costs on appeal.

MAURO , J.

We concur:

RAYE , P. J.

HULL , J.

33