The opinion
Filed 7/14/22 P. v. Townsend Street Gang CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE ex rel. TODD SPITZER,
as District Attorney, etc.
Plaintiff and Respondent,
v. G060293
TOWNSEND STREET GANG, (Super. Ct. No. 30-2014-00727728)
Defendant; OPINION
CARLOS GODINEZ-SANCHEZ,
Real Party in Interest and Appellant.
Appeal from an order of the Superior Court of Orange County, Franz
E. Miller and Layne H. Melzer, Judges. Affirmed.
Sean Garcia-Leys for Real Party in Interest and Appellant.
Todd Spitzer, District Attorney, and John R. Maxfield, Deputy District
Attorney, for Plaintiff and Respondent.
Appellant and real party in interest Carlos Godinez-Sanchez challenges an
order denying his motion to dissolve an injunction against the Townsend Street gang
(TSG) that prohibits its members from engaging in certain criminal and nuisance
activities. Appellant contends his motion should have been granted because TSG is not a
proper jural entity over which the courts have jurisdiction. We disagree and affirm the
trial court’s ruling.
PROCEDURAL BACKGROUND
In June 2014, the Orange County District Attorney (OCDA), respondent
herein, filed a complaint against TSG for injunctive relief on the basis the gang
constituted a public nuisance under California law. (See Pen. Code, § 186.22a; Civ.
Code, §§ 3479, 3480.) The complaint sought to enjoin TSG members from engaging in a
wide range of activities within a .39 square mile area of Santa Ana described as the safety
zone. No individual members of the gang were named as defendants in the lawsuit, but
in the body of the complaint 29 individuals (not including appellant) were identified as
suspected members of TSG. The complaint also alleged TSG was an unincorporated
association under Code of Civil Procedure section 369.5, which renders such entities
subject to legal process.
When no one appeared on behalf of TSG to oppose the complaint, the trial
court issued a default judgment, followed by a preliminary injunction in August 2014,
and a permanent injunction five months later. The permanent injunction states it applies
broadly to any member or associate of TSG whose membership is more than nominal or
passive. However, the OCDA has taken a cautious approach toward enforcement of the
injunction. Rather than deciding for himself who is subject to its terms, the OCDA has
left that question to the courts. In the interest of due process, his position has been that
suspected TSG members are entitled to a judicial “predeprivation” hearing, and only
those persons who are found to be active participants in the gang are bound by the
injunction. (See generally Vasquez v. Rackauckas (9th Cir. 2013) 734 F.3d 1025 [due
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process requires some type of predeprivation procedure before a gang injunction can be
legally enforced against nonparties]; People v. Sanchez (2017) 18 Cal.App.5th 727
[same].)
With that in mind, the OCDA filed a motion for a predeprivation hearing
1
with respect to appellant in March 2020. In response to the motion, appellant’s attorney
filed a counter-motion to dissolve the injunction and dismiss the case for lack of
jurisdiction, pursuant to Code of Civil Procedure section 532. Counsel argued, “This
entire action rests on the premise [TSG] is an unincorporated association, and as such, is
amenable to suit in civil court. However, the statutory definition of an unincorporated
association [in] Corporations Code section 18035 . . . unambiguously excludes criminal
organizations by making a ‘common lawful purpose’ an element of the definition.
According to the [OCDA’s] own arguments and allegations, [TSG] is a criminal
organization not formed for a lawful purpose. Because the OCDA did not plead any
basis for personal jurisdiction other than to claim [TSG] is an unincorporated association,
this case must be dismissed for lack of a cognizable defendant.”
The trial court disagreed. It ruled that even if TSG was not formed for a
lawful purpose, and was thus not an unincorporated association within the meaning of
Corporations Code section 18035, the gang was still subject to the court’s jurisdiction as
an unincorporated association under Code of Civil Procedure section 369.5. It denied
appellant’s motion to dissolve the injunction on jurisdictional grounds. Appellant timely
appealed that ruling, and all proceedings in the trial court have been stayed pending
resolution of his appeal.
1
The law enforcement affidavits submitted in support of the motion include a compendium of
information relating to alleged criminal activity by appellant that respondent has included in his brief to this court.
Although this information is part of the appellate record, we agree with appellant it is not germane to the narrow
legal issue presented in this appeal. Therefore, we need not recount it in the opinion.
3
DISCUSSION
Appellant reiterates his jurisdictional argument, claiming TSG is not a
legally cognizable defendant due to the fact it was formed for illegal purposes. Although
appellant does not request an end to the OCDA’s injunction program, he contends gang
injunctions can only be issued when the underlying complaint is brought against
individual gang members, and not the gang itself. We cannot agree. “The ultimate issue
of whether an exercise of jurisdiction is fair and reasonable is a legal determination
subject to de novo review on appeal.” (Aquila v. Superior Court (2007) 148 Cal.App.4th
556, 568.) Exercising our independent judgment on the issue, we find TSG was properly
named as a defendant in this case, and there is no basis to dissolve the injunction against
it for lack of jurisdiction.
Before addressing the merits of appellant’s argument, we first take up
respondent’s procedural objections to the appeal. He asserts appellant forfeited his right
to challenge the injunction on appeal by failing to move to set it aside pursuant to Code
2
of Civil Procedure section 473, subdivision (d). Respondent cites People ex rel. Reisig
v. Broderick Boys (2007) 149 Cal.App.4th 1506 (Broderick Boys) for support, but the
court’s discussion of section 473 in that case was limited to the issue of standing. (Id. at
pp. 1516-1518.) There is nothing in the opinion that suggests a section 473 motion is a
prerequisite for challenging the validity of an injunction on appeal. Rather, the opinion
makes clear a person can utilize a wide variety of remedies to attack an injunction on
jurisdictional grounds. (Id. at p. 1518.) We are satisfied appellant preserved his right to
challenge the injunction against TSG by seeking to dissolve it pursuant to Code of Civil
Procedure section 532.
2
That section provides, “The court may, upon motion of the injured party, or its own motion,
correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and
may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ.
Proc., § 473, subd. (d).)
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Under that section, a person may move to dissolve an injunction if it was
granted without notice to him or her. (Code Civ. Proc., § 532, subd. (a).) Respondent
does not dispute the injunction against TSG was granted without notice to appellant. Yet,
he maintains appellant failed to satisfy any of the criteria for dissolution set forth in Code
of Civil Procedure section 533. Namely, “that there has been a material change in the
facts upon which the injunction . . . was granted, that the law upon which the injunction
. . . was granted has changed, or that the ends of justice would be served by” dissolving
the injunction. (Code Civ. Proc., § 533.)
In response, appellant asserts it would be patently unjust to subject him to
the injunction when he had no connection to the case when the injunction was issued.
Indeed, appellant insists due process and fundamental fairness require the naming of
individual defendants when the government seeks a gang injunction, so those persons
have the opportunity to challenge the injunction before it is issued, which is something
appellant did not have the chance to do in this case. This argument implicates the merits
of the appeal, to which we now turn.
Appellant’s position is premised on the theory that the Corporations Code’s
definition of an unincorporated association is controlling for purposes of determining
whether TSG was properly named as a defendant in the underlying complaint. Even if
that were true, it would not carry the day for appellant, but, for the reasons explained
below, we do not subscribe to appellant’s view that the jurisdictional issue in this case
depends entirely on a single definition set forth in the Corporations Code.
Title 3 of that code pertains to unincorporated associations, which is what
the OCDA alleged TSG was for jurisdictional purposes in this case. As part of that title,
an unincorporated association is defined in section 18035 as “an unincorporated group of
two or more persons joined by mutual consent for a common lawful purpose, whether
organized for profit or not.” (Corp. Code, § 18035, subd. (a), italics added.) Appellant
claims TSG does not fall within this definition because the OCDA alleged it was a
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criminal street gang whose primary activities consist of an assortment of criminal
offenses, and the law enforcement affidavits offered in support of the injunction detailed
an array of unlawful conduct by TSG members.
However, in its complaint, the OCDA alleged TSG members also “join
together for social, recreational, profit and other common purposes,” which is why the
injunction prohibits both unlawful conduct and such commonplace activities as standing,
biking or driving with another TSG member in the designated safety zone. Thus, it is not
altogether clear that TSG is outside the scope of an unincorporated association as defined
by Corporations Code section 18035.
Moreover, there is another provision in Title 3 of the Corporations Code
that casts doubt on the applicability of section 18035 in this case, that being section
18000. Section 18000 states, “Unless the provision or context otherwise requires, the
definitions in this chapter govern the construction of this title.” This indicates the
definition of an unincorporated association in section 18035 has limited application and
was primarily intended to control only when construing the provisions of Title 3. (People
ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 40 (Colonia Chiques).)
This limitation is important because in invoking jurisdiction over TSG in
this case, the OCDA relied on Code of Civil Procedure section 369.5, which is outside
the Corporations Code altogether. Pursuant to that section, “A partnership or other
unincorporated association, whether organized for profit or not, may sue and be sued in
the name it has assumed or by which it is known.” (Code Civ. Proc., § 369.5, subd. (a).)
For purposes of this provision, “The criteria applied to determine whether an entity is an
unincorporated association are no more complicated than (1) a group whose members
share a common purpose, and (2) who function under a common name under
circumstances where fairness requires the group be recognized as a legal entity.” (Barr v.
United Methodist Church (1979) 90 Cal.App.3d 259, 266 (Barr).)
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These criteria have been found to apply to groups that are operating as a
criminal enterprise. (See, e.g., Martin v. Mundo (D.C. Cal. 2021) [U.S. Dist. LEXIS
36665] [religious group engaged in systematic sexual trafficking and abuse was properly
sued as an unincorporated association].) In fact, in Colonia Chiques, supra, the court
addressed this very issue and held a criminal street gang qualified as an unincorporated
association capable of being sued under Code of Civil Procedure section 369.5. We find
the analysis in that case compelling authority for upholding the injunction that was issued
against TSG in this case.
Colonia Chiques involved a challenge to an injunction that was issued
against a criminal street gang in Ventura County that was known by that name. The
challengers argued the injunction was jurisdictionally flawed because it was issued
against the Colonia Chiques gang itself and not its individual members. In particular,
they alleged – as appellant does here – that a criminal street gang is not “‘a distinct jural
entity [] capable of [] being sued as an unincorporated association.’” (Colonia Chiques,
supra, 156 Cal.App.4th at p. 38.)
In rejecting that argument, the Colonia Chiques court determined that in
light of the limiting language set forth in Corporations Code section 18000 (discussed
above), the definition of an unincorporated association in Corporations Code section
18035 was not controlling for purposes of deciding whether such an entity could be sued
under Code of Civil Procedure section 369.5. Therefore, it was immaterial whether the
Colonia Chiques gang was formed for a lawful purpose within the meaning of the
Corporations Code. (Colonia Chiques, supra, 156 Cal.App.4th at pp. 39-40.)
Colonia Chiques also pointed out the California Supreme Court has
indicated it is permissible to obtain injunctive relief against a criminal street gang as a
distinct jural entity if its members are responsible for the conditions giving rise to such
relief. Indeed, in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna) the
Supreme Court stated that even though the injunction in that case was issued against
7
individual gang members, “the City could have named the gangs themselves as
defendants and proceeded against them[.]” (Id. at p. 1125.) Although this statement was
technically dicta, since the Acuna case turned largely on First Amendment issues and
issues related to the permissible scope of the injunction, the Colonia Chiques court found
it to be persuasive authority on the issue of whether a criminal street gang can be sued as
a separate entity for the unlawful activities of its members. (Colonia Chiques, 156
Cal.App.4th at p. 39, fn. 6.) So do we.
The Colonia Chiques court also found it significant that under the STEP
Act (Pen. Code, §§ 186.20-186.33), the state is authorized to obtain money damages
against a gang whose members create a nuisance, and the fruits of a gang’s criminal
activity are subject to judicial forfeiture. (Colonia Chiques, supra, 156 Cal.App.4th at
pp. 40-41.) Given those remedies, Colonia Chiques believed it would “border on
absurdity” to conclude the Legislature intended to make gangs immune from being sued
as separate entities under Code of Civil Procedure section 369.5 based on how the
Corporations Code happened to define unincorporated associations. (Id. at p. 41; see
generally City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37
Cal.App.5th 734, 758-759 and cases cited therein [although it is sometimes permissible to
rely on the meaning of a word in one statute to ascertain the meaning of the same word in
a different statute, that is generally not the case when the two statutes appear in entirely
different codes].)
We share this belief. Granting gangs such immunity would clearly
undermine the Legislature’s goal of deterring criminal gang activity. Penal Code
section 186.21 explicitly sets out the Legislature’s intent in passing the STEP Act as
eradicating gang crimes “by focusing upon patterns of criminal gang activity and upon
the organized nature of street gangs, which together, are the chief source of terror created
by street gangs.” We therefore decline appellant’s invitation to construe the Corporations
Code as a bar to the injunction that was issued against TSG in this case.
8
Appellant insists such a construction is warranted based on the Third
District’s opinion in Broderick Boys, supra, 149 Cal.App.4th 1506. There, several
alleged members of the Broderick Boys gang moved to set aside an injunction that was
issued against that gang. The central issue presented was whether the gang was an
unincorporated association for purposes of service under Corporations Code section
18220. (Id. at p. 1520.) Because that section is housed in Title 3 of the Corporations
Code, the court logically looked to the definition of an unincorporated association
contained in Corporations Code section 18035 in deciding whether the service provided
in that case was adequate. (Id. at p. 1521.) Ultimately, the court held the service was
defective because the evidence established the Broderick Boys were formed wholly for
unlawful purposes and therefore did not constitute an unincorporated association within
the meaning of that section. (Id. at pp. 1521-1522.)
Appellant attempts to extend that holding to this case. But this case does
not involve any issues relating to the service of process, which was the pivotal issue in
Broderick Boys. Instead, it relates to whether TSG is a jural entity subject to being sued
in its own right. As we have explained, that issue is governed by Code of Civil
Procedure section 369.5, not the Corporations Code. Accordingly, the holding in
Broderick Boys has little utility in this case. In fact, since the time the Broderick Boys
decision was handed down, the Third District has acknowledged its ruling in that case is
limited to the service of process issue presented therein and is contextually distinct from
the jurisdictional question presented here. (People ex. rel. Reisig v. Acuna (2017) 9
Cal.App.5th 1, 39.)
Despite this, appellant would have us hold the legislative history of
Corporations Code section 18035 compels the conclusion that criminal street gangs
cannot be sued in their own right. As appellant rightly notes, that section was derived
from former Corporations Code section 24000, which was enacted in 1967. (See Stats.
1967, ch. 1324, § 6, p. 3153; Barr, supra, 90 Cal.App.3d at p. 265.) At that time, the
9
statute defined unincorporated associations without regard to the legality of their purpose.
(Ibid.; see also Colonia Chiques, supra, 156 Cal.App.4th at p. 39.) But when the
Legislature replaced section 24000 with section 18035 as part of its reorganization of the
Corporations Code in 2004, the lawful purpose requirement was added to the definition.
(Stats. 2004, ch. 178, §§ 10, 17.)
Appellant argues the Legislature did this to align the Corporations Code
with the 1996 Uniform Unincorporated Nonprofit Association Act (UUNAA) as part of
an intentional effort to prevent illegal organizations from being sued as unincorporated
associations. The Legislature did rely on the UUNAA in deciding how to reorganize the
Corporations Code in 2004. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1746,
June 1, 2004 (2003-2004 Reg. Sess.).) More specifically, the Legislature relied on
recommendations from the California Law Revision Commission as to which provisions
of the UUNAA were worthy of adoption in California. (See Recommendations:
Unincorporated Associations (Sept. 2003) 33 Cal. Law Revisions Com. Rep. 729
(Recommendations).) But there is nothing in the UUNAA or the Recommendations that
speaks to whether unincorporated associations must be formed for a legal purpose or
whether illegal organizations are amenable to being sued in civil court.
Those two sources do contemplate, however, that courts will often have to
look to other statutory provisions – outside the UUNAA and the Corporations Code – in
deciding issues pertaining to unincorporated associations. (UUNAA, supra, § 2 and
accompanying comment, p. 9; Recommendations, supra, at pp. 735, 751.) This indicates
the recommendations the Legislature adopted in modifying the Corporations Code in
2004 were intended as default rules to apply in the absence of other governing authority.
They were not intended to replace the well-established rules respecting when an
unincorporated association may be sued under Code of Civil Procedure section 369.5.
(See generally Recommendations, supra, at p. 779 [stating the creation of Corporations
Code section 18035, subdivision (a) was not intended as a substantive change to the
10
previous law contained in section 24000]; UUNAA, supra, § 7 and accompanying
comment, p. 20 [recognizing the UUNAA’s provisions regarding an unincorporated
association’s capacity to be sued may be superfluous in light of existing states laws on
that issue].)
In arguing Corporations Code section 18035 controls whether a particular
group or organization can be sued as an unincorporated association under Code of Civil
Procedure 369.5, appellant also emphasizes the fact that the predecessors to those two
statutes were both enacted as part of a single bill. (See Stats. 1967, ch. 1324, § 6 [adding
former Corp. Code, § 24000] and § 1 [adding former Code of Civ. Proc., § 388].)
Appellant sees this as proof the two statutes were intended to be interpreted in
conjunction with one another. However, there is nothing in the legislative history of
these two provisions that dictates strict adherence to the Corporations Code’s definitions
in determining whether a group constitutes a jural entity for purposes of being subject to
civil suit. To the contrary, it appears the Legislature intended to limit the reach of those
definitions by passing Corporations Code section 18000, which was enacted as part of the
very same bill that added the lawful purpose requirement to Corporations Code section
18035. (See Stats. 2004, ch. 178, § 10.) We therefore conclude that requirement is not
controlling in this case. (See also Recommendation and Study relating to Suit By or
Against an Unincorporated Association (Oct. 1966) 8 Cal. Law Revisions Com. Rep.
901, 940 [“There should be no limitation on the kinds of associations that may sue and be
sued.”].)
That brings us to appellant’s due process argument. He asserts it is
fundamentally unfair to permit the state to sue criminal street gangs for injunctive relief
because no one can appear in court on behalf of a criminal organization to defend its
interests. However, appellant was only 14 years old when this case arose, and there is no
evidence he was active in TSG at that time. So, even if individual members of TSG had
11
been named as defendants in the underlying complaint, it would not have benefited him
personally in terms of being able to challenge the injunction.
With respect to that critical issue, the record is clear appellant has had every
opportunity to defend himself against the injunction due to the procedures adopted by the
OCDA in this case. Before the OCDA’s office attempted to enforce the injunction
against appellant, it served him with notice of its request for a predeprivation hearing to
adjudicate his gang status. This allowed appellant to appear in court through counsel and
challenge the underlying validity of the injunction on legal grounds. Appellant will also
have the opportunity to challenge the injunction from a factual perspective at the
predeprivation hearing, where the onus will be on the OCDA to prove by clear and
convincing evidence he is an active participant in TSG. (See People v. Englebrecht
(2001) 88 Cal.App.4th 1236, 1256.) Therefore, appellant cannot credibly complain about
not being allowed to have his day in court.
As far as due process is concerned, it is also important to keep in mind that
fairness is an important consideration in deciding whether a particular group may be sued
as an unincorporated association under Code of Civil Procedure 369.5. As we have
noted, courts must not only consider whether the group’s members share a common
purpose, but whether “fairness requires the group be recognized as a legal entity.
Fairness includes those situations where persons dealing with the association contend
their legal rights have been violated. [Citation.]” (Barr, supra, 90 Cal.App.3d at pp.
267-268, italics added.)
In this case, the OCDA sought injunctive relief on the grounds that TSG
has violated the right of certain Santa Ana citizens to live safely in their own homes and
go about their daily affairs free of violence, intimidation and harassment. Fairness
dictates that TSG be held accountable for any transgressions of these basic human rights.
Accordingly, we find TSG was properly named as a defendant in this case, and due
process was not offended by the absence of additional defendants.
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DISPOSITION
The trial court’s order denying appellant’s motion to dissolve the injunction
against TSG is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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