Utzman vs. County of Orange

Like Plaintiff and UA POC, Plaintiff and UA VMV dispute whether UA VMV employed Plaintiff. As the arguments and analysis for this Motion are the same as Motion 1, the court reaches the same conclusion. Plaintiff is entitled to further responses and responsive documents from UA VMV as to RFP Nos. 1-6 (as narrowed by the court above) as they are relevant to the question of the employment relationship between the parties. However, the Motion is denied without prejudice as to RFP Nos. 7-9 as these requests are premature.

The court DENIES Plaintiff’s request for monetary sanctions, and DENIES UA VMV’s request for monetary sanctions, as each party acted with substantial justification in bringing and opposing this Motion, respectively.

MOTION 4: Plaintiff’s Motion to Compel Further Responses to SROG, Set One, from UA VMV

Plaintiff’s Motion to Compel Further Responses to SROG, Set One, from UA VMV is DENIED WITHOUT PREJUDICE.

The court OVERRULES UA POC’s objections to Plaintiffs’ counsel, Hali M. Anderson’s declaration.

As with Motion 2 concerning the same SROGs, the court finds that there is no good cause for further responses from UA VMV to SROG Nos. 1 and 2. The court finds that the request for further responses to these SROGs is premature and denies this Motion.

The court DENIES Plaintiff’s request for monetary sanctions, and DENIES UA POC’s request for monetary sanctions, as each party acted with substantial justification in bringing and opposing this Motion, respectively.

Plaintiff is ordered to give notice of this ruling to Defendants.

13 30-2020-01174005 ILLUMINATION FOUNDATION’S MOTIONS FOR Utzman vs. County SUMMARY JUDGEMENT AND ADJUDICATION of Orange Defendant Illumination Foundation’s (“IF”) Motion for Summary Judgment is DENIED. IF’s alternative Motion for Summary Adjudication is GRANTED as to Issue No. 10 and DENIED as to Issue Nos. 1-9, and 11-12.

The court grants summary adjudication as to the Plaintiffs’ Twelfth Cause of Action for Breach of Implied Warranty of Habitability on the grounds that based upon the undisputed material facts and as a matter of law Plaintiffs cannot establish a right to recover for Breach of Implied Warranty of Habitability in the absence of evidence of a residential lease.

The court OVERRULES Plaintiffs’ objections to IF’s evidence and OVERRULES IF’s objections to Plaintiffs’ evidence. The objections all lack merit and go to the weight, rather than admissibility of the evidence. The subject statements made were by declarants with adequate foundation for their statements, the evidence does not consist of inadmissible hearsay asserted for the truth of the matters stated, and/or the objections concern evidence not relevant to the court’s ruling on this Motion.

At issue in this action are the security and transportation policies implemented at the La Mesa shelter, which purportedly harmed resident Plaintiffs who allege that they suffered sexual harassment, lost jobs, and were retaliated against for reporting sexual harassment.

I.

Factual Background

The City of Anaheim (the “City”) purchased property, constructed the La Mesa shelter, and contracted with IF to operate all aspects of the facility. (UF 1.) IF was the exclusive operator of the La Mesa Shelter from its opening on March 1, 2019, until it closed on April 30, 2022. (UF 2.) The Scope of Work for operation of La Mesa required IF to provide a security plan for the shelter that included: (1) the hiring of a 24/7 licensed security vendor; (2) implementation of a security plan that included residents being searched upon entrance; and (3) confiscation of harmful contraband, e.g., weapons or illegal drugs. (UF 4.)

The Management and Operation Plan also contained a “Security Plan,” which made clear that there would be “two 24/7 on-site security guards stationed at all times.” (UF 5.) Under this plan, residents’ belongings were also to be searched upon entry, and security staff would conduct security rounds of the facility every 30-60 minutes. (UF 6.)

The contract requires IF to provide all services “in a manner consistent with . . . all applicable local, state, and federal laws, rules, and regulations . . . .” (ROA 897, Ex. C [COA R2 RFP.03 PART 2 – 00170].)

Defendant Protection America (“PA”) provided the exclusive security services at La Mesa from January 1, 2019, through October 11, 2019, pursuant to a contract with IF. (UF 13.) The agreement stated that PA was an independent contractor, but the parties dispute this status. (IF’s Evid., Ex. B.)

A. The Policies

i. Security Policy

At some point, La Mesa had a “LA MESA SHELTER SECURITY POST ORDERS” document that outlined its Post Orders and Standard Operating Procedures for security personnel, which stated that male security staff were never to search female clients. (IF’s Evid., Ex. P.) The document instructs staff to: “with gloved hands, pat down the legs and arms of the client.” (Id.) It states: “Never place hands on a client’s private areas.” (Id.) The document also lists other areas of the body to be searched, including instructing staff to “Respectfully ask client to thumb their waistband,” and “Respectfully ask clients to remove hats, beanies, scarves, or anything worn on their head that is not for religious purposes.” (Id.) The document also states: “All searches are to be done in the security check point, in full view of the security cameras.” (Id.)

ii. Transportation Policy

The contract between the City and IF also included a transportation policy, which required shelter residents to use a shuttle or other vehicle to enter and exit the La Mesa premises. (IF’s Evid., Ex. I [S. Lozeau Deposition, Vol. I, 26:23-25, 29:7- 10]; id., Ex. D [COA RS RFP.03 PART 2 – 00184] [“Other program elements that will support security efforts include no walk-ups and no loitering policies.”]; id., Ex. E [COA R2 PL RFP-1 000048] [“Clients may not walk off or on property.”].) The transportation policy stated: IF will provide transportation in vans and shuttles to predetermined drop off/pick up locations throughout the City of Anaheim at scheduled times daily 2 am transports and 2pm transports.

These locations will vary based on need and IF will coordinate with the City of Anaheim Police Department and Homeless Liaison to identify drop off/pick up locations. In the event an individual self-exits or is exited from the Shelter, IF shall provide transportation and return the individual to his or her original location or to a location of his or her choosing within the city of Anaheim. IF recognizes that transportation is necessary to ensure that the area surrounding the Shelter is not adversely impacted. (IF’s Evid., Ex.

D.)

The “Compliance Contract” for the La Mesa shelter stated: “I understand that I can not walk and/or ride my bike to and from the facility. I must leave and return to the facility in a vehicle. I also understand that loitering is not allowed on or around the premises.” (ROA 993, Ex. 11 [IF Shelter Compliance Contract signed by Cyndi Utzman] [IF R2 PL RFP.03 PART 1 –000776- 000777].)

The Shelter Rules at La Mesa similarly prohibited “foot or bicycle traffic to or from the facility” and warned that “failure to follow these rules will result in a write up and or your discharge from the facility.” (ROA 993, Ex. 13 [Plaintiff 0004043].)

The parties dispute whether there were ever exceptions made to this transportation policy.

B. Harassment & Retaliation

Plaintiff Cyndi Utzman claims that while at La Mesa, she was subjected to sexual harassment in the form of invasive body searches. (UF 24.) Ms. Utzman claims that she was harassed by La Mesa staff members. (4AC ¶¶ 130-132.) Ms. Utzman contends she was written up on three occasions in retaliation: after she (1) moved the trash can outside the women’s dorm to prevent the staff member from entering the women’s dorm to look at women changing under the excuse of emptying the trash; (2) after she told the staff member she was going to video him coming into the women’s dorm; and (3) after she complained about another resident harassing her. (ROA 897, Ex.

F [Utzman Responses to IF and City of Anaheim’s Special Interrogatories Set One, 40:19- 41:3; 42:3-7].) IF discharged Ms. Utzman from La Mesa, allegedly for non-compliance with behavioral contract. (ROA 1009, Ex. 3 [Illumination Foundation Discharge Document] [IF R2 PL RFP.03 PART 1 – 001345].) Utzman claims: “In early April 2020, Plaintiff complained about . . . harassment. . . . A month later, La Mesa staff singled out Plaintiff, writing her up for an alleged issue where other similarly situated residents were not written up.

After Plaintiff complained, two days later, Defendant Illumination Foundation kicked her out of the La Mesa Shelter.” (ROA 897, Ex. F [Utzman Resp. to Illumination Foundation and Anaheim’s SROGs, Set. One at 42:3-8].) Ms. Utzman also alleges that the invasive searches she was subject to got worse after she complained. (ROA 1007, Ex. 4 [Utzman Dep. Tr., at 155:6-13, 156:24-157:1].)

Plaintiff Wendy Powitzky claims that she was improperly searched at La Mesa. (4AC ¶¶ 154-156.) She testified to multiple incidents of improper searches. (ROA 1009, Ex. 1 [Powitzky Dep. Tr., at 193:15-194:6] [Powitzky: “. . . every day when I went through, not just me but other people as well, went through that facility and being searched by the security guards. They were touching us in inappropriate ways, some worse than other times. Sometimes it was just the waistband. . . . I’ve been to jail before and I know what is supposed to be a legal search and what they’re not supposed to do, and every day they did things that they were not supposed to be doing.”].) Ms. Powitzky claims that she complained about this treatment and, as a result, she herself was written up by La Mesa staff. (4AC ¶¶ 156-157.)

Plaintiff Catherine Moore claims she was physically searched in a sexually invasive manner. (ROA 1009, Ex. 2 [Moore Dep. Tr., at 116:17-118:14 (“. . . Maria came over and wanted to search me. She took her open hands and put them underneath my armpits and rubbed from underneath my arms all the way to my ankles and back up, over my legs which were bare skin, and touching the sides of my breasts and front of my, I guess, you would say stomach and thighs. Q. When she did that, did she use her -- was it the front of the hand or back of the hand?

A. Front palm. . . .”)].) Ms. Moore also contends that a male staff member entered the female dorm and saw her naked. (4AC ¶ 195.) Ms. Moore contends that she complained to La Mesa management about the searches and, as a result, she was written up. {4AC ¶¶ 192-193.) Ms. Moore claims she was threatened with eviction and experienced invasive searches in March and April of 2019, complained about them, was subsequently written up, and then filed a separate grievance for retaliatory write-ups in June of 2019. (ROA 1009, Ex. 2 [Moore Dep.

Tr., at 110:24-114:10, 138:16-18.)

All three Plaintiffs that lived at La Mesa described security guards groping their breasts, rubbing their waistline and thighs, and forcing them to pull out their bras and expose their breasts before they were permitted to enter the shelter. (ROA 1009, Ex. 2 [2025-09-08 Moore Dep. Tr., at 252:2-6]; id., Ex. 1 [Powitzky Dep. Tr., at 174:10-175:1, 191:1-14]; ROA 1007, Ex. 4 [Utzman Dep. Tr., at 320:23-321:2, 321:7-21]; ROA 897, Ex. F [Utzman Interrogatories Set One, No. 19].) All three Plaintiffs that lived at La Mesa experienced the same male staff at La Mesa purposely entering the women’s dorm to look at them and other women while they were changing. (ROA 1007, Ex. 4 [2025-09-19 Utzman Dep. Tr., at 185:4-10, 188:11-17]; ROA 1009, Ex. 2 [Moore Dep. Tr., at 157:7-9, 158:10-16, 165:24-166:3]; ROA 897, Ex. G at 12:13-15.)

Plaintiffs contend that both the contracted security guards from PA and IF staff were involved in the searches challenged by Plaintiffs. (Pltfs.’ Evid., Ex. 3 [Powitzky Dep. Tr., 182: 10-25; 183: 1-8].)

Plaintiffs Wendy Powitzky, Cyndi Utzman, and Catherine Moore all complained to IF staff about sexually invasive searches at La Mesa. (ROA 1009, Ex. 1 [Powitzky Dep. Tr., at 174:21-175:18, 209:11-16]; ROA 1007, Ex. 4 [Utzman Dep. Tr., at 174:19- 176:15]; ROA 1009, Ex. 2 [Moore Dep. Tr., at 116:17-118:14, 119:13-119:24].) Ms. Utzman and Ms. Moore also complained to IF staff about male staff purposely entering the women’s dorm to look at the women while they were naked and changing. (ROA 1007, Ex. 4 [Utzman Dep. Tr., at 188:23-189:7]; ROA 1009, Ex. 2 [Moore Dep. Tr., at 165:24-168:8].)

Plaintiffs claim that they lived in fear of losing their shelter if they received too many write-ups. (ROA 1009, Ex. 2 [Moore Dep. Tr. at 86: 3-4 (“First there would be a write-up, and after three write-ups, you would be evicted.”), 138:16-18 (“Q: Were you ever evicted or exited from the shelter at La Mesa? A: I was threatened with eviction.”)]; ROA 1009, Ex. 1 [Powitzky Dep. Tr. at 65:11-13 (“if we received a specific amount of write-ups we would be exited.”)]; id. at 245:22-246:2 (“Q: What did you believe Illumination Foundation did in retaliation for what you were doing?

A: Well, all of the write-ups and then eventually they exited me for a situation that I shouldn’t have been exited for.”); ROA 1007, Ex. 4 [Utzman Dep. Tr. at 51:5-9 (“Q: And failure to follow these rules will result in a write-up and/or your discharge from the facility. You understood that to be the case; correct? A: Yes, I did.”)].)

C. Continued Use of Policies

La Mesa closed permanently on April 30, 2022, when its contract expired. (UF 36.) IF asserts that there are presently two shelters operated by IF in Los Angeles County, six in Orange County, and two in the Inland Empire. (IF’s Evid., Ex. R [K. Gates Deposition, 101:2-102:15].) Of all these facilities, IF contends that only two are navigation centers. (Id. at 131:10-12.)

IF asserts that since the closure of La Mesa in 2022, IF has changed and/or revised its client documentation and policies, including those related to transportation, curfew, belongings, illegal activity, etc. (IF’s Evid., Ex. R [K. Gates Deposition, 117:2-8].) The transportation policy specifically has changed names and is now referred to as the “Good Neighbor Policy.” (Id. at 130:10-131:12.)

Plaintiffs argue that the transportation policy from La Mesa shelter is still included in compliance contracts at some of IF's current shelters. (Pltfs.’ Evid., Ex. 1 [Hoiberg Dep. Tr. at 83: 8- 16].) Plaintiffs contend that the policy is currently implemented at its Broadway Recuperative Care, Riverside Recuperative Care, and Carnegie Navigation Center. (Id. at 86: 5-18.) Plaintiffs argue that even though the policy has been renamed, the substance of the policy remains the same. (Pltfs.’ Evid., Ex. 4 [Gates Dep. Tr. at 130:18-131:9].)

II. Motion for Summary Judgment/Adjudication

A. First Cause of Action: Discrimination – Hostile Environment Harassment; Second Cause of Action: Discrimination – Quid Pro Quo Harassment; Third Cause of Action: Discrimination – Based on Sex; Fifth Cause of Action: Invasion of Privacy

1, Disparate Treatment/Discriminatory Animus

IF seeks summary adjudication of the First, Second and Third Causes of Action on the grounds that its security policy does not violate the Fair Employment and Housing Act (“FEHA”) and did not result in disparate treatment. However, Plaintiffs state in opposition that their claims are not based on the policy itself, but based upon the implementation of the security policy by the employees of IF and IF’s contractor, PA.

FEHA prohibits the owner of a housing accommodation from engaging in sexual discrimination and harassment. (Cal. Gov’t Code § 12955(a).) Housing accommodations under FEHA include “homeless shelters.” (2 Cal. Code Regs. § 12005(o)(2).)

“Under the McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima facie case of discrimination.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1004.) “To meet this burden, the plaintiff must, at a minimum, show the [defendant] took actions from which, if unexplained, it can be inferred that it is more likely than not that such actions were based on a prohibited discriminatory criterion.” (Id.) “If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the [defendant] to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the [defendant] took its actions for a legitimate, nondiscriminatory reason.” (Id.) “If the [defendant] meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the [defendant’s] proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive.” (Id.)

If “the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the [alleged conduct], the [defendant] satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [alleged conduct].” (Id. at 1005.) “To defeat the motion, the [plaintiff] then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred.” (Id.) “In determining whether these burdens were met, [courts] must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendants.” (Id.)

“[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity.” (Texas Dep't of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc. (2015) 576 U.S. 519, 542.) “A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.” (Id. at 543.) “[I]n a disparate impact case, a plaintiff must ‘allege[] and prove[], usually through statistical disparities, that facially neutral [policies] adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are ‘in operation ... functionally equivalent to intentional discrimination.’” (Mahler v.

Jud. Council of California (2021) 67 Cal. App. 5th 82, 113.) “[S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.” (Id.)

Plaintiffs argue that IF’s sexually invasive searches and voyeurism created a hostile housing environment (2 Cal. Code Regs. § 12120(a)(2)) and constituted quid pro quo harassment (2 Cal. Code Regs. § 12120(a)(1)), as it was a condition of housing and refusal of the searches would expose residents to eviction. Plaintiffs argue that they may prove “discriminatory effect” of Defendant’s actions “regardless of intent.” (Cal. Gov’t. Code § 12955.8(b).)

IF claims that PA searched everyone that entered La Mesa and that nobody was singled out. (IF’s Evid., Ex. Q [E. Clay Deposition, 60:3-25].) The PMK for the City stated that the purpose of this security policy was to protect the safety of the individuals residing at the shelter, including minors and children, as well as those entering the shelter. (IF’s Evid., Ex. J [S. Lozeau Deposition, Vol. II, 411:20-412:11].) However, Plaintiffs argue that the City’s PMK had no knowledge of the document prior to her deposition and she could not know its purpose.

IF claims that there was no discriminatory animus associated with the security policy, but Plaintiffs contend that the restrictions on shelter residents’ travel were developed to appease discriminatory community animus against shelter residents. (See, e.g. ROA 993, Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 222:13-223:2].)

IF argues that there is no statistical evidence that there was disparate impact from the security policy. Plaintiffs’ expert, Wendy Still, provided statistics on the prevalence of women with histories of interpersonal violence in shelter settings, and the disparate harm that invasive searches cause for women with histories of abuse. (ROA 1007, Ex. 5 [Still Decl., at 18:41-19:11, 32:8-33:6].) Wendy Powitzky also claimed that women were disparately harmed by the sexually invasive searches. (ROA 1009, Ex. 1 [Powitzky Dep. Tr. 279:13-19 (searches for men at La Mesa were different because “they didn’t have anything up top for them to pat down or search through”)].)

As there are triable issues of fact as to disparate impact and discriminatory animus, the court denies summary adjudication of the First, Second and Third Causes of Action on this ground.

B. Invasion of Privacy

With respect to the Fifth Cause of Action for invasion of privacy, IF argues that the claim fails because Plaintiffs had no reasonable expectation of privacy with respect to the searches.

“[T]he plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant.” (Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 26.) “If voluntary consent is present, a defendant's conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Id.) “[A] person can be deemed to consent only to intrusions that are reasonable under the circumstances.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal. 4th 992, 1001.)

IF contends that the security policy did not invade Plaintiffs’ privacy rights because Plaintiffs consented to the searches. Plaintiffs were presented with, and acknowledged, the La Mesa rules upon admission. (UF 50.) One rule stated: “Residents must enter through security and submit to security procedures when reentering the facility.” (UF 51.)

However, Plaintiffs argue that they gave “coerced consent” to the searches, “since the alternative was eviction from the shelter onto the streets.” (4AC ¶¶ 125, 153, 188.) Plaintiffs also state that they did not consent to sexually invasive searches. (ROA 1007, Ex. 4 [Utzman Dep. Tr., at 320:17-323:15 (“I agreed to the kind of searches I believed were necessary. The searches that were happening, they were not necessary. They were oppressive, and they were scary . . . to constantly pat me down when I’m just wearing a tank top and making sure everybody sees it, pull my bra, it was aggressive.”)]; (ROA 1009, Ex. 1 [Powitzky Dep. Tr., at 170:3-8 (“we already talked about how one of the conditions of being a resident at La Mesa was to be subject to search procedures going in. Obviously that does not mean that, you know, you consented to being groped or anything like that”)].)

As there are triable issues of fact as to consent, whether the conduct was “highly offensive to a reasonable person,” and whether the intrusion of Plaintiffs’ privacy was reasonable under the circumstances, summary adjudication is not appropriate. Thus, the court denies summary adjudication as to the Fifth Cause of Action based on the ground of alleged consent.

C. Vicarious Liability

IF contends that the First, Second, Third, and Fifth Causes of Action fail because there is no evidence to support the imposition of vicarious liability against IF for the actions of the employees of IF or PA.

However, Plaintiffs have presented evidence and legal authority raising triable issues of fact as to whether vicarious liability may arise based on agency, respondeat superior, FEHA vicarious liability, or under the non-delegable duty rules concerning independent contractors.

1. Agency

“An agent is one who represents another, called the principal, in dealing with third persons.” (Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1184 [citing Civ. Code, § 2295)].) “Agency and independent contractorship are not necessarily mutually exclusive legal categories[.]” (Id.) “[A]n agent may also be an independent contractor.” (Id.) “One who contracts to act on behalf of another and subject to the other's control, except with respect to his physical conduct, is both an agent and an independent contractor.” (Id.)

But “[t]he law indulges in no presumption that an agency exists but instead presumes that a person is acting for himself and not as agent for another.” (Id.) “[W]hether an agency relationship has been created or exists is determined by the relation of the parties as they in fact exist by agreement or acts . . . and the primary right of control is particularly persuasive.” (Id.) “Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the ‘principal’ and ‘agent’ are engaged in distinct occupations; the skill required to perform the ‘agent's’ work; whether the ‘principal’ or ‘agent’ supplies the workplace and tools; the length of time for completion; whether the work is part of the ‘principal's’ regular business; and whether the parties intended to create an agent/principal relationship.” (Id.)

Accordingly, the question of agency is extremely fact-intensive.

2. Respondeat Superior

“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 208.) “[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” (Id.) “Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment.” (Id.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact.” (Id. at 213.)

“[T]he faultless employer may be held vicariously liable for the employee's actions on the theory that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal. App. 4th 377, 393.) “The employer's liability thus extends beyond the employer's actual or possible control of the employee to include risks inherent in or created by the enterprise.” (Id. at 394.) However, “[u]nder the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer,” unless “direct negligence be established.” (Id) “[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him.” (Id. at 395.) “[T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct.” (Id. [emphasis in original].)

3. Independent Contractor

“A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.” (Cal. Gov't Code § 815.4.)

“The primary test of an employment relationship is whether the ‘person to whom service is rendered has the right to control the manner and means of accomplishing the result desired[.]” (Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1178–79.) “Under this rule, the right to exercise complete or authoritative control must be shown, rather than mere suggestion as to detail.” (Id.) “A worker is an independent contractor when he or she follows the employer's desires only in the result of the work, and not the means by which it is achieved.” (Id.) “Whether a person is an employee or an independent contractor is ordinarily a question of fact . . .” (Id.)

“[A] person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Privette v. Superior Ct. (1993) 5 Cal. 4th 689, 693.) “Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘no right of control as to the mode of doing the work contracted for.’” (Id.) “Over time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that ‘the rule is now primarily important as a preamble to the catalog of its exceptions.’” (Id.) “[W]hen a hirer delegated a task to an independent contractor, it in effect delegated responsibility for performing that task safely, and assignment of liability to the contractor followed that delegation.” (SeaBright Ins.

Co. v. US Airways, Inc. (2011) 52 Cal. 4th 590, 600.) “The Privette line of decisions . . . establishes that an independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees.” (Id.) However, “[t]he nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work.” (Id. at 600.) “The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor.” (Id. at 600-601.) “‘A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others.” (J.L. v.

Children's Inst., Inc. (2009) 177 Cal. App. 4th 388, 400.) “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” (Id.)

4. Vicarious Liability under FEHA

FEHA provides for vicarious liability even without knowledge of wrongdoing: Vicarious liability is a form of responsibility that makes a person liable for the discriminatory housing practice of a third party, regardless of whether the person knew or should have known of the conduct by the third party that resulted in the discriminatory housing practice. A person covered by these regulations is vicariously liable for discriminatory practices by their agent or employee, regardless of whether they knew or should have known about the conduct, unless California agency law requires a different outcome and that outcome is not in conflict with the federal Fair Housing Act. (1) Whether there is an agency relationship between a person and a third party that results in liability for a discriminatory housing practice is a question of fact.

However, a discriminatory housing practice can be found to occur even if it violates an agent's or employee's official duties, does not benefit the agent or employer, is willful or malicious, or disregards the agent's or employer's express orders. (2) An agent or employee may be considered to be acting within the course and scope of the agency or employment relationship even if his or her discriminatory housing practice occurs incidental to the agent's or employee's job- related tasks. For example, a person may be liable for harassment committed by their employee on the premises of a dwelling for work-related reasons such as conducting repairs, even though harassment is not part of the employee's job duties. (Cal.

Code Regs. tit. 2, § 12010(b) [emphasis added].)

FEHA also provides for direct liability for “[f]ailing to take prompt action as determined on a case-by-case basis to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it.” (Cal. Code Regs. tit. 2, § 12010(a)(1)(C) [emphasis added].) “The power to take prompt action to correct and end a discriminatory housing practice by a third-party depends upon the extent of any legal responsibility or authority the person may have with respect to the conduct of such third party.” (Id.) “The power, responsibility, or authority can be derived from sources including contracts, leases, common interest development governing documents, or by federal, California, or local laws, regulations, or practices.” (Id.)

5. Triable Issues of Fact as to Vicarious Liability

As established by the case law above, the question of vicarious liability turns on several factual issues, and the court finds that the evidence and authority presented by Plaintiffs are sufficient to raise triable issues of fact as to IF’s vicarious liability for the actions of its employees and PA’s employees.

Plaintiffs argue that IF had a non-delegable duty to provide shelter free of sexual discrimination and harassment. (Cal. Gov. Code §12955(a); see also Cal. Gov. Code § 815.6.) Plaintiffs contend that under FEHA, IF is liable for the wrongful conduct of its agents and employees, regardless of whether IF knew or should have known about the conduct. (Cal. Code Regs. tit. 2, § 12010(b).) Further, Plaintiffs argue that IF would be liable for housing discrimination if it had the power to correct the conduct and the conduct is incidental to the employee’s job, even if the violates the employee’s official duties and/or the IF’s express orders. (Cal. Code Regs. tit. 2, § 12010(a)(1)(C).)

Plaintiffs also contend that PA acted as IF’s agent because it was contracted to act on IF’s behalf and was subject to IF’s control. (ROA 897, Ex. P [La Mesa Shelter Security Post Order]; Mot. at p. 25 [“Illumination set strict rules regarding how [resident] searches were to be performed by the security personnel.”].) Plaintiffs argue that the PA/IF contract required PA to “comply with any and all reasonable building rules and regulations which may be issued or promulgated by [Illumination].” (ROA 897, Ex. B at § VIII.)

Here, IF relies heavily on the use of the phrase independent contractor in PA/IF’s contract, but as stated in the Jackson case above, the concepts of agency and independent contractor status are not mutually exclusive. IF also denies having control over PA’s employee’s performance of their duties, but in light of Plaintiffs’ evidence, there are triable issue of fact as to the level of control IF had over PA’s employees, as well as its own.

Plaintiffs have established several areas of triable issues of fact as to IF’s vicarious liability for the conduct of its employees and PA’s employees. Thus, the court denies summary adjudication as to the First, Second, Third and Fifth Causes of Action based on the ground of lack of vicarious liability.

D. Governmental Immunity

IF argues that to the extent that the First, Second, Third, and Fifth Causes of Action are based upon the City’s requirement that IF implement a security policy, IF is immune from liability.

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Gov't Code § 820.2.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Cal. Gov't Code § 815.2(b).) “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Cal. Gov't Code § 818.2.)

“[I]mmunity should attach to those decisions which involve ‘basic policy’ choices which, because they constitute an exercise of governmental administration, should ‘remain beyond the range of judicial inquiry.’” (Ronald S. v. Cnty. of San Diego (1993) 16 Cal. App. 4th 887, 896.) “A governmental decision involving essentially political considerations is regarded as 'discretionary' and thus immune from liability.” (Taylor v. Buff (1985) 172 Cal. App. 3d 384, 390.) “The category of political decisionmaking includes questions of budgetary and fiscal policy, personnel administration standards, allocation of available resources according to variable priorities of need, and choices between competing plans for accomplishing approved objectives.” (Id.)

“The immunity afforded by Government Code sections 818.2 . . . attaches only to discretionary functions.” (Nunn v. State of California (1984) 35 Cal. 3d 616, 622.) “[I]mmunity attaches to quasi-legislative policy decision-making areas which are sufficiently sensitive to justify blanket immunity,” not to implementation of those policies through “operational” or “street level” decisions. (Id.) The immunity does not apply to “‘lowerlevel, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.’” (Greenwood v. City of Los Angeles (2023) 89 Cal. App. 5th 851, 860.)

As stated above, Plaintiffs do not challenge the security policy itself, but the implementation of the policy at the shelter. Governmental immunity does not apply to the implementation of IF’s security policy. Further, the immunities under the Government Tort Claims Act do not affect Plaintiffs’ “right to obtain relief other than money or damages against a public entity or public employee.” (Cal. Gov't Code § 814.) Here, Plaintiffs seek a declaratory ruling and an injunction to prevent sexual harassment at other shelters that IF operates, which would not be subject to governmental immunity. (4th Am. Compl. at p. 83 [Relief Requested includes “[t]hat the Court issue a declaration, a writ of mandate, and an injunction prohibiting Defendants from engaging in the unlawful conduct described above.”].)

Based on the foregoing the court denies summary adjudication of the First, Second, Third and Fifth Causes of Action based on the grounds of governmental immunity.

E. FEHA Exhaustion

IF contends that as to Plaintiff Cyndi Utzman, the first three causes of action fail because she failed to exhaust her administrative remedies. However, there is no exhaustion requirement for housing discrimination cases. “An aggrieved person may commence a civil action [for housing discrimination] whether or not a complaint has been filed under this part and without regard to the status of any complaint.” (Cal. Gov't Code § 12989.1(b).) Thus, the court should denies summary adjudication as to the First, Second and Third Causes of Action based on the grounds of failure to exhaust administrative remedies.

F. (6th) Sexual Battery

As with the causes of action discussed above, IF argues that it cannot be vicariously liable for the Sixth Cause of Action for sexual battery for the conduct of IF’s employees and the employees of PA. However, as discussed in detail above, the court finds that there are triable issues of fact as to whether IF may be vicariously liable for the wrongful conduct alleged in this action. Therefore, the court denies summary adjudication of the Sixth Cause of Action based on the grounds of lack of vicarious liability.

G. (8th) Retaliation; (9th) Retaliation

1. Retaliation

IF also seeks summary adjudication for the retaliation claims under the Eighth and Ninth Causes of Action on the grounds that Plaintiffs did not suffer from any acts of retaliation.

It is unlawful “[f]or any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner's dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part.” (Cal.

Gov't Code § 12955(f).) “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by Section 12955 or 12955.1.” (Cal. Gov't Code § 12955.7.) “‘Adverse action’ means action that harms or has a negative effect on an aggrieved person.” (Cal. Code Regs. tit. 2, § 12005(b).)

As described above, Plaintiffs allege that they faced eviction, retaliatory writeups, and increased sexual harassment after they complained about sexual harassment at the shelter. IF argues that there is no evidence linking the write-ups to Plaintiffs’ complaints. However, Plaintiffs contend that “proximity in time between the protected action and [the] allegedly retaliatory [adverse action]” is sufficient to create an inference of causation between a causal event and the retaliatory adverse action. (Zirpel v.

Alki David Prods., Inc. (2023) 93 Cal. App. 5th 563, 578.) Plaintiffs assert that they received write-ups in close temporal proximity to complaints they made. Catherine Moore received a Rule Violation Warning, the day after she refused an invasive search because she was wearing a tank top and bike shorts. (ROA 1007, Ex. 9 [Plaintiff 002060]; ROA 1007, Ex. 10 [Guest/Client Problem Resolution Form, R2 RFP.02-00015-00017].) Ms. Moore also experienced invasive searches, complained about them, was written up, and submitted a grievance about the retaliatory write-ups all within a four month span. (ROA 1009, Ex. 2 [Moore Dep.

Tr., at 110:24-114:10, 138:16-18].)

Cyndi Utzman submitted a complaint on 11/30/19 about Elliott Recendiz coming into the women’s dorm and on 12/1/19 Elliott Recendiz wrote her up for an incident that happened on 10/22/19. (ROA 1007, Ex. 16 [IF R2 RFP.03 PART 2 – 034943]; id., Ex. 17 [IF R2 RFP.03 PART 2 – 034960].) On April 7, 2020, Ms. Utzman complained in an email to IF staff about another resident who was harassing her and about a search that was “humiliating” and “invasive” and IF discharged her from the shelter a month later. (ROA 1009, Ex. 3 [Illumination Foundation Discharge Document] [IF R2 PL RFP.03 PART 1 – 001345].)

The court finds that there are triable issues of fact as to whether adverse actions were taken against Plaintiffs for complaining about sexual harassment at the shelter. Accordingly, summary adjudication as to the Eighth and Ninth Cause of Action on this ground is denied.

2. Vicarious Liability

IF also raises the argument that there are no grounds for vicarious liability for these causes of action. However, as stated above, Plaintiffs have raised triable issues of fact as to vicarious liability. Summary adjudication of the Eighth and Ninth Causes of Action based on the ground of lack of vicarious liability is also denied.

H. FEHA Exhaustion

IF contends that as to Plaintiff Cyndi Utzman, the Eighth Cause of Action fails due to failure to exhaust administrative remedies. As stated above, FEHA exhaustion is not required for housing discrimination claims. Thus, summary adjudication is denied as to the Eight and Ninth Causes of Action based on the grounds of failure to exhaust administrative remedies.

I. (10th) Due Process; (11th) Equal Protection

1. Mootness

IF argues that the constitutional claims are moot because the La Mesa shelter is no longer operational as it closed on April 30, 2022, and the policy in question is not employed at any other IF shelter.

“A case becomes moot—and therefore no longer a “Case” or “Controversy” for purposes of Article III—“when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (Already, LLC v. Nike, Inc. (2013) 568 U.S. 85, 91.) “[T]he case is moot if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.’” (Id.) “[A]n ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages’ of the litigation.” (Id. at 90-91.)

However, “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” (Id. at 91.) “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” (Id.) “The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated.” (Roger v.

Cnty. of Riverside (2020) 44 Cal. App. 5th 510, 530.) When “respondents have presented no evidence they have or will develop a [legally compliant] policy,” “they have not shown the errors that occurred . . . are not likely to recur.” (Id. at 531.)

A court may exercise its discretion to decide an issue that is moot “(1) when the case presents an issue of broad public interest that is likely to recur []; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [].” (Ghost Golf, Inc., 102 Cal. App. 5th at 101.) “[T]he voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere violation of a party the challenged practices may be resumed.” (United Farm Workers of Am., AFL- CIO v.

Dutra Farms (2000) 83 Cal. App. 4th 1146, 1164 [noting that dissolution of committee that engaged in illegal practices did not render claim moot when defendant could form another unlawful committee absent injunctive relief].) If there is evidence that a defendant “were likely to repeat its allegedly illegal conduct, the case would not be moot.” (Sec. & Exch. Comm'n v. Med. Comm. for Hum. Rts. (1972) 404 U.S. 403, 406.)

As discussed in the factual section above, Plaintiffs have presented evidence of similar transportation policies being used at other IF-run shelters. Accordingly, the claim is not moot as there is evidence the allegedly wrongful policies are likely to recur. Therefore, the court denies summary adjudication of the Tenth and Eleventh Causes of Action based on the grounds of mootness.

2. Constitutionality

IF seeks summary adjudication of the Tenth and Eleventh Causes of Action on the grounds that IF’s transportation policy did not violate any of Plaintiffs’ constitutional rights as it does not improperly restrict Plaintiffs’ right to travel and does not treat Plaintiffs differently from those who are similarly situated, which IF contends are other shelter residents. IF argues that the transportation policy is not unlawful because it only prohibited travel by certain means. Plaintiffs contend that IF’s transportation and anti-loitering policies completely restricted Plaintiffs’ right to travel and are based on discriminatory animus, as the same restrictions do not apply to others who travel in the area.

“The right to freedom of travel is constitutionally protected.” (Allen v. City of Sacramento (2015) 234 Cal. App. 4th 41, 60.) “[S]tate courts have found a violation of the constitutional right of intrastate travel only when there is a direct restriction on the right to travel . . .” (Id.) “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.) For example, “[b]urdens on a single mode of transportation do not implicate the right to interstate travel.” (Gilmore v. Gonzales (9th Cir. 2006) 435 F.3d 1125, 1137.) “[T]he Constitution does not guarantee the right to travel by any particular form of transportation.” (Id. at 1136 [holding that TSA identification policy does not violate right to travel].)

“Absent a compelling state interest, a State may not burden the right to travel[.]” (Dunn v. Blumstein (1972) 405 U.S. 330, 342 [discussing durational residence requirements for right to vote].) “Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.” (Id.) “[T]hey are unconstitutional unless the State can demonstrate that such laws are ‘necessary to promote a compelling governmental interest.’” (Id.) “Statutes affecting constitutional rights must be drawn with ‘precision,’ . . . and must be ‘tailored’ to serve their legitimate objectives.” (Id. at 343.) “[F]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” (Id.)

However, courts do not “apply the strict constitutional test to legislation . . . which does not penalize travel and resettlement but merely makes it more difficult for the outsider to establish his residence in the place of his choosing.” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal. 3d 582, 602–03.) “[E]ven if an enactment affects interstate travel, it still must be sustained against a constitutional attack if the invasion is inconsequential and does not unreasonably burden freedom of movement.” (R. H. Macy & Co. v. Contra Costa Cnty. (1990) 226 Cal. App. 3d 352, 368 [finding law that increased taxation on property when it is newly purchased based on fair market value at the time of purchase does not violate right to travel].)

When an act “does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies.” (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 481.) “[S]tatutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Id. at 482 [emphasis in original].) “Where there are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’” (Id.)

IF contends that there was a rational basis for its transportation policy. The City’s PMK claimed that the La Mesa transportation policy arose from the consideration of several policy factors, and an effort to address concerns and balance interests of shelter residents, staff and neighbors. (IF’s Evid., Ex. 1 [S. Lozeau Deposition, Vol. I, 133:6-136:22].) The City’s PMK claimed that when the City was considering the location of La Mesa, concerns were expressed by surrounding businesses and other stakeholders regarding the potential for increased pedestrian traffic in an industrial area, or potential criminal activity associated with the facility. (Id.)

The City’s PMK stated that the expedited creation timeline for the shelter limited the opportunity for community input that would typically accompany the permitting process, so the defendants determined that the transportation policy - relying on shuttles to limit foot traffic outside La Mesa - was an appropriate way to address community concerns while creating the shelter as quickly as possible. (Id.) The City’s PMK also noted that the geographical location necessitated the transportation policy.

Plaintiffs argue that the policies were not narrowly tailored, and could not pass either the strict scrutiny or rational basis tests. Plaintiffs argue that the shelter was nearby to services that were accessible to residents on foot, including County of Orange Social Services Agency, several fast food outlets, and a gas station food mart. (ROA 953, Ex. 1 [showing map of surrounding areas].) Plaintiffs also point out that Orange County’s study for the Bridges shelter located across the street from La Mesa found there would be no impact to “pedestrian facilities or otherwise decrease the performance or safety of such facilities” as a result of the creation of the shelter, and “no mitigation measures are required.” (ROA 991, Ex. 1 [OC015531, at 015599-015600].)

Plaintiffs also note that the City was not aware of any statistics regarding industrial areas being more dangerous than nonindustrial areas to justify the restrictions. [ROA 993, Ex. 31 [Lozeau Dep. Tr., Vol. 1, at 77:1-22]; ROA 1007, Ex. 7 [Lozeau Dep. Tr., Vol. 1, at 191:17-21].) Plaintiffs assert that IF admits it is not aware of any studies showing a need for the transportation policy at the La Mesa shelter. (Pltfs.’ Evid., Ex. 1 [Hoiberg Dep. Tr. 72:12-15].) Plaintiffs also contend that the City did not consider alternative policies to the transportation policy. (ROA 993, Ex. 31 [PMQ City of Anaheim Lozeau, Vol. 1, 222:7-12].)

Plaintiffs argue that the policies were discriminatory as there are no similar transportation restrictions imposed on IF staff or any other business or person from walking or biking on the sidewalks near La Mesa. (ROA 989, Ex. 45 [Hoiberg Dep. Tr., at 76:23- 77:6]; ROA 993, Ex. 31 [Lozeau Dep. Tr., Vol. 1, 37:13-17, 38:15-17, 207:22-25].) Plaintiffs also contend the policies were intended to hide Plaintiffs from the public in a discriminatory manner, as the City informed the public that "All of the [City’s] shelters operate with clear rules and security for the benefit of those staying there and to ensure shelters are good neighbors...

Most people don't even know our shelters exist, and it’s hard to tell they're shelters if you happen to drive by. That's by design." (ROA 989, Ex. 47 [Anaheim’s Shelter Plan Q&A for Winter 2020-2021, p. 3].) Plaintiffs argue that the policies were to appease community animus toward unhoused persons. “[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases” for discriminatory policies. (City of Cleburne, Tex. v.

Cleburne Living Ctr. (1985) 473 U.S. 432, 448.)

As the court has stated in previous rulings, there are triable issues of fact as to the nature of the transportation policy and how much it restricted Plaintiffs’ right to travel. Further, there are triable issues of fact as to the rational basis or compelling state interest supporting IF’s transportation policy. As there are triable issues of fact preventing the court from determining the policies’ constitutionality as a matter of law, the court denies summary adjudication of the Tenth and Eleventh Causes of Action on this ground.

J. Governmental Immunity

IF also contends it is immune from liability for policy-decisions involving the transportation policy. Like the question of constitutionality, as the parties dispute the exact nature of IF’s transportation policy, the court cannot determine whether the policy is wholly discretionary and subject to governmental immunity or whether it involves street-level decisions implementing a policy. Thus, the court denies summary adjudication of the Tenth and Eleventh Causes of Action on this ground.

K. Standing

IF argues that the only individual plaintiff asserting these constitutional claims against IF, Wendy Powitzky, lacks standing to assert these claims as she purportedly suffered no injury resulting from the transportation policy.

Standing requires a showing of the following: (1) plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (Lujan v. Defs. of Wildlife (1992) 504 U.S. 555, 560–61.)

Ms. Powitzky claims that she left two jobs as a result of the transportation policy because it was too difficult to get to those jobs because of the transportation policy. (ROA 1009, Ex. 1 [Powitzky Dep. Tr., at 109:25-110:5 (“Q: How did the policy restricting walking back onto the facility impact your ability to get home, to get back to the shelter, from the warehouse job at 3:00 in the morning? A: It impacted me on getting out of the shelter in the afternoon when I went to go leave.”); id., 121:2-4 (“Q: Why did you quit? A: Because I couldn’t get to work and I couldn’t get home from work.”).].) Plaintiffs state that Ms. Powitzky remains unhoused and resides in Anaheim. (ROA 1009, Ex. 1 [Powitzky Dep. Tr. at 34:18–35:5].) Ms. Powitzky claims she will not stay in another shelter, in part due to the lock-in/shutout transportation policy. (ROA 993, Ex. 20.)

As there are triable issues of fact as to whether IF’s transportation policy harmed Ms. Powitzky, the court denies summary adjudication of the Tenth and Eleventh Causes of Action based on the grounds of lack of standing.

L. (12th) Breach if Implied Warranty of Habitability

IF seeks summary adjudication of the Twelfth Cause of Action on the grounds that there was no lease between Plaintiffs and IF to establish any implied warranty of habitability. IF argues that the Civil Code makes clear that a residential lease is a contractual “hiring” of real property and, therefore, requires consideration. (Cal. Civ. Code § 1940.) Civil Code section 1940(b)(1) specifically provides: “The term ‘persons who hire’ shall not include a person to whom this paragraph pertains if the person has not made valid payment for all room and other related charges . . . .” As there was no exchange of payment, IF contends there could be no lease.

“[T]here is in California a common law implied warranty of habitability in residential leases, and that under this warranty a landlord ‘covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.’” (Knight v. Hallsthammar (1981) 29 Cal. 3d 46, 52.)

Plaintiffs argue that they had compliance contracts with IF that functioned as leases, setting forth their obligations in exchange for residency. (ROA 1007, Ex. 12 [Shelter Compliance Contract (blank) (IF R2 PL RFP.03 PART 1_001339-001340]; ROA 993, Ex. 11 [IF Shelter Compliance Contract signed by Cyndi Utzman (IF R2 PL RFP.03 PART 1 –000776-000777); ROA 993, Ex. 12 [Wendy Powitzky Compliance Contract (IF R2 PL RFP.03 PART 1_000749-000768)].) However, Plaintiffs provide no authority demonstrating that the compliance contracts could constitute a lease.

As with the City’s motion for summary adjudication concerning this issue, the court grants IF’s motion for summary adjudication as to the Twelfth Cause of Action as there is no evidence of a lease between IF and Plaintiffs to support this cause of action.

M. (13th) Common Law Negligence

1. Negligence Per Se

IF argues that Plaintiffs cannot recover for negligence per se because it is not an independent cause of action but rather an evidentiary rule. “Negligence per se” is an evidentiary doctrine codified at Evidence Code section 669. (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal. App. 4th 1256, 1285.) “The doctrine does not provide a private right of action for violation of a statute.” (Id.) “[I]t operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.” (Id. at 1285-1286.)

However, Plaintiffs’ Thirteenth Cause of Action is not for negligence per se but for common law negligence. Thus, summary adjudication of the Thirteenth Cause of Action is denied as to this ground.

2. Mandatory Duty

IF also seeks summary adjudication of the Thirteenth Cause of Action for negligence on the grounds that the claim is not based on any mandatory duty.

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Cal. Gov't Code § 815.6.)

The court finds that at least the following statutes asserted by Plaintiffs impose a mandatory duty:

Cal. Civ. Code § 1941 states: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”

Orange County Municipal Code § 7-9-148.8(d)(7) (2013): “Emergency shelter and multi-service center for the homeless (multi-service center) site development standards and operational requirements. . . . One (1) toilet and shower shall be provided for each ten (10) beds. Separate facilities shall be provided for men and women.”

Anaheim Municipal Code §§ 18.38.125.0404-0405, 18.38.125.1101-1102 (2012): “An Emergency Shelter shall comply with all of the following provisions: . . . An Emergency Shelter shall comply with all of the following provisions: A minimum of 1 toilet for every 8 beds per gender. . . A minimum of 1 shower for every 8 beds per gender.”

Accordingly, the court denies summary adjudication of the Thirteenth Cause of Action as to the issue of mandatory duty.

3. Governmental Immunity

IF also contends it is immune from liability for the 13th COA for any alleged failure to investigate the harassment/discrimination of Plaintiffs at the shelter.

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Gov't Code § 820.2.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Cal. Gov't Code § 815.2(b).)

Discretionary immunity “is limited to policy and planning decisions, and does not reach ‘lower level decisions that merely implement a basic policy already formulated.’” (K.C. v. Cnty. of Merced (2025) 109 Cal. App. 5th 606, 617.) “Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government.” (Id.) Decisions subject to immunity include those that “involve[] the exercise of analysis and judgment as to what is just and proper under the circumstances,” are “sensitive policy decision[s] that require[] judicial abstention to avoid affecting a coordinate governmental entity's decisionmaking or planning process,” such as “preliminary determinations” that “reports of possible abuse” “did not warrant initiation” of further action. (Id. at 619.)

However, Plaintiffs claim here is that IF failed to adequately supervise their independent contractors, not that they failed to adequately investigate complaints made about those independent contractors. (4AC ¶ 386.)

IF also contends it is immune with respect to any habitability claims. “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property . . . for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Cal. Gov't Code § 818.6 [emphasis added].) However, Plaintiffs do not claim that IF failed to adequately inspect the property, but rather its failure to adequately maintain the property. (4AC ¶ 390.) Further, this immunity does not attach to a defendant’s own property.

Based on the foregoing, the court denies summary adjudication of the Thirteenth Cause of Action based on the grounds of governmental immunity.

Defendant Illumination Foundation is ordered to give notice of this ruling.

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MERCY HOUSE’S MOTIONS FOR SUMMARY JUDGMENT AND ADJUDICATION

Defendant Mercy House Living Centers’ (“Mercy House”) Motion for Summary Judgment is DENIED. Mercy House’s alternative Motion for Summary Adjudication is GRANTED as to Issue No. 4 as to the Twelfth Cause of Action based on Plaintiffs’ failure to provide evidence of a lease between Plaintiffs and Mercy House to support a breach of the warranty of habitability claim. The Court DENIES summary adjudication as to Issue Nos. 1-3, and 5.

The court OVERRULES Plaintiffs’ objections to the Declaration of Patti Long and Austin Drissen, as these objections go to the weight and not admissibility of this evidence.

Mercy House seeks summary judgment, or in the alternative, summary adjudication of the following issues: • Issue No. 1: Plaintiffs cannot establish their ninth cause of action for retaliation against Mercy House. • Issue No. 2: Plaintiffs cannot establish their tenth cause of action for due process against Mercy House. • Issue No. 3: Plaintiffs cannot establish their eleventh cause of action for equal protection against Mercy House. • Issue No. 4: Plaintiffs cannot establish their twelfth cause of action for breach of the implied warranty of habitability against Mercy House. • Issue No. 5: Plaintiffs cannot establish their thirteenth cause of action for negligence against Mercy House.

I. Motion for Summary Judgment, or Adjudication

A. Ninth Cause of Action: Retaliation based on California Constitution Article I, Sections 2 and 3 and California Government Code Sections 810, 815, et seq.

1. Public Entity Status

Mercy House argues that the Ninth Cause of Action fails because Mercy House is not a public entity that could be liable pursuant to Government Code sections 810, and 815, et. seq. It is undisputed that these statutes only concern tort liability for public entities.

However, Plaintiffs argue that non-profits engaged by public entities can also be considered public entities subject to the Government Claims Act.

“[D]etermining public entity status requires case-specific analysis.” (Black v. Los Angeles Cnty. Metro. Transportation Auth. (2025) 116 Cal. App. 5th 677, 690.) Courts look to whether an organization’s “affairs are intertwined with, and dependent upon, [the] County,” whether “the county's board of supervisors was responsible for appointing [the organization’s] governing board and adopting and amending its bylaws,” whether “[t]he county retained control over the [organization's] physical plant and facilities,” whether the organization “was required to provide the county with quarterly reports” and the county “had authority to dissolve [the organization].” (Id. at 691.)

An organization is a public entity if it is “created by a county board of supervisors, pursuant to necessary authorization from the state Legislature, and upon terms requiring the county's ongoing involvement in [the organization’s] board membership, bylaws, licensure, and finances.” (Id.) An organization is also a public entity if it is “formed under the authority of state law, operates solely for the benefit of the municipality, and is defined by the [] municipal code as part of the city.” (Id. at 692.)

An organization is not a public entity if it is “not created by the government,” “not owned or operated by the government,” and “do not possess any of the traditional incidents of sovereign authority,” and “do not serve a governmental purpose, although they may serve altruistic purposes that benefit society.” (Id. at 693.)

Since its opening in 2017, Mercy House has overseen daily operations of the Bridges shelter pursuant to its contract with the County. (Long Dec. ¶ 5.) Mercy House has contracted with the County for the operation of the Bridges shelter since the shelter opened in 2017 and continues to be under contract to the present. (Long Dec. ¶¶ 6-10, Exs. F-I.) Pursuant to all of the Mercy House contracts with the County, the County retains monitoring authority and can terminate contracts immediately for cause or within 30 days notice without cause. (Long Dec. ¶¶ 6-11, Exs. F- I; Angelo Dec. ¶¶ 5-6, Exs. C-D.) Mercy House is required to submit weekly and monthly reports to the County and must comply with performance standards, with substandard performance constituting grounds for immediate contract termination. (Id.)

Mercy House contends that each of the contracts between Mercy House and the County consistently required a strict no walk-up, no walk-out transportation policy from Bridges’ opening in 2017 through at least April 2025. (Long Dec. ¶¶ 6-11, Exs. F-I; Drissen Dec. ¶ 20.) Mercy House states that pursuant to the County’s policy, Bridges clients were prohibited from walking to or from the facility and were required to use designated shuttle transportation to approved drop-off locations. (Id.) The transportation system included scheduled shuttles with specific pickup and drop-off locations, though residents complained about insufficient shuttle runs. (Long Dec. ¶ 14.)

Mercy House’s contracts with the County also contained anti-loitering provisions prohibiting clients from loitering in surrounding neighborhoods, with violations potentially resulting in exit from the facility. (Long Dec. ¶¶ 6-10, 16, Exs. F-I.) Mercy House staff enforced the no-walk-up/no-walk-out policy by speaking with guests who violated the policy, reminding them of the expectations, and documenting the interaction as appropriate. (Drissen Dec. ¶ 23.)

The County’s Good Neighbor Policy was a contractual requirement which designated Mercy House responsible for ongoing communication with the shelter’s neighbors and addressing community concerns. (Long Dec. ¶¶ 6-10, Exs. F-I; Drissen Dec. ¶ 24.) The policy included Staff Neighbor Patrol duties requiring weekly monitoring of the surrounding area (initially one-mile, later reduced to half-mile radius) to control loitering, abandoned property, and blight. (Id.) Mercy House was required to organize neighborhood patrols, maintain communication with local police and fire departments, and establish a Community Advisory Board for addressing neighbor concerns. (Id.)

The court finds that the relationship between Mercy House and the County, as described by Mercy House’s own declarants, raise triable issues of fact as to whether Mercy House should be considered a public entity. The County provided Mercy House the facility, exercises control over the policies used at the facility, oversees the facility by requiring monitoring and reporting from Mercy House, and arguably Mercy House operates the shelter for the benefit of the County.

In reply, Mercy House argues that Plaintiffs did not consider Mercy House a public entity because Plaintiffs did not allege they filed a government claim with Mercy House in compliance with the Government Claims Act. However, whether Plaintiffs would have to exhaust their claims under the Government Tort Claims Act is a separate issue, and not one raised in Mercy House’s Notice of Motion.

Thus, there are triable issues of fact as to whether Mercy House can be considered a public entity. Thus, the court DENIES summary adjudication as to the Ninth Cause of Action based on this ground.

2. Private Right of Action for Damages

Mercy House argues that the Ninth Cause of Action fails because there is no private right of action for damages as to violations of California Constitution, article I, section 2, subdivision (a), which guarantees free speech. (Degrassi v. Cook (2002) 29 Cal.4th 333, 338-339.) However, the holding in Degrassi is limited to the facts in that case as recognized by that court: “[W]e decline to recognize a constitutional tort action for damages to remedy the asserted violation of article I, section 2(a), alleged in the present case.” (Id. at 344 [emphasis added].)

The Degrassi court clarified that “[t]his does not mean that the free speech clause, in general, never will support an action for money damages.” (Id.) The court explicitly stated that it did not consider “whether any other state constitutional provision may support a constitutional tort action for such damages.” (Id.) The court’s holding was only that “the loss or damage of which plaintiff here complains—interference with her functioning and effectiveness as a legislator—does not support recognition of a constitutional tort for damages, even assuming that such interference may result from a violation of the free speech clause.” (Id.)

As the facts here are distinguishable from the claim in Degrassi, that court’s holding does not apply to Plaintiffs’ Ninth Cause of Action.

In reply, Mercy House argues for the first time that government immunity applies to this claim. The court declines to consider an issue raised for the first time in reply as Plaintiffs have had no opportunity to address that issue.

Here, Mercy House has not demonstrated that Plaintiffs may not seek damages for the Ninth Cause of Action as a matter of law. Further, Plaintiffs also seek equitable relief for this claim, and thus this argument does not properly dispose of the entire cause of action. The court DENIES summary adjudication as to the Ninth Cause of Action based on this ground.

3. Evidence of Retaliation

Mercy House also seeks summary adjudication of the Ninth Cause of Action on the grounds that there is no evidence that Mercy House retaliated against Plaintiffs for exercising their freedom of speech or right to petition the government for redress of grievances.

However, Plaintiffs provide evidence raising triable issues of fact as to retaliation. Shortly after Joshua Ogle and several other residents of Bridges spoke at an April 2019 Orange County Board of Supervisors meeting about the unsanitary conditions at the shelter, Plaintiffs claim that Bridges staff demanded that each resident who had spoken before the Board meet individually with staff. (Pltfs.’ Evid., Ex. 1 [Plaintiff Joshua Ogle’s Responses to Defendant Mercy House Living Centers’ Special Interrogatories, Set No. 1 [Response to Special Interrogatory No. 24].)

At one of the meetings between Bridges residents and Bridges staff postdating the April 2019 Orange County Board of Supervisors meeting, the chief of operations asked Mr. Ogle whether they could get him to leave the shelter. (Id.) Mr. Ogle agreed to live in his car if he could get the starter motor fixed; Bridges staff initially offered to pay for that repair but later refused to do so. (Id.) Shortly after Bridges staff refused to pay to fix Mr. Ogle’s car, staff demanded that Mr. Ogle remove his car from the shelter parking lot and park along the street. (Id.)

After Mr. Ogle moved his car following the demands of Bridges staff, Bridges staff members called the police and had his car towed. (Id.) At the time Mr. Ogle’s car was towed, he could not afford to pay the fine and towing fees to get his car back, and his car was sold at auction. (Id.) Bridges staff also started enforcing rules against Mr. Ogle that had not previously been enforced. (Id.) Bridges staff attempted to evict Mr. Ogle for returning after the 10:00 PM curfew, despite never having attempted to do so previously for the same conduct. (Id.)

The curfew affected his ability to care for his children. (Id.) Bridges staff also allowed a resident who had stolen Mr. Ogle’s car to stay at the shelter, which he believed was intended to intimidate him into leaving the shelter. (Id.)

“[P]roximity in time between the protected action and [the] allegedly retaliatory [adverse action]” is sufficient to create an inference of causation between a causal event and the retaliatory adverse action. (Zirpel v. Alki David Prods., Inc. (2023) 93 Cal. App. 5th 563, 578.) Here, there are triable issues of fact as to whether Mercy House’s retaliated against Mr. Ogle for speaking out about the conditions at the shelter. Therefore, the court DENIES summary adjudication as to the Ninth Cause of Action based on this ground.

B. Tenth Cause of Action: Due Process based on California Constitution Article I, Section 7 & Eleventh Cause of Action: Equal Protection based on California Constitution Article I, Section 7

1. Constitutionality

Mercy House contends that the transportation policy that Mercy House was required to enforce at Bridges did not violate any of Plaintiffs’ constitutional rights because it only restricted certain means of travel and not all travel. Mercy House also contends that the policy furthers a legitimate government purpose to ensure the safety and wellbeing of community and Bridges residents due to the location of the shelter.

“The right to freedom of travel is constitutionally protected.” (Allen v. City of Sacramento (2015) 234 Cal. App. 4th 41, 60.) “[S]tate courts have found a violation of the constitutional right of intrastate travel only when there is a direct restriction on the right to travel . . .” (Id.) “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.) For example, “[b]urdens on a single mode of transportation do not implicate the right to interstate travel.” (Gilmore v. Gonzales (9th Cir. 2006) 435 F.3d 1125, 1137.) “[T]he Constitution does not guarantee the right to travel by any particular form of transportation.” (Id. at 1136 [holding that TSA identification policy does not violate right to travel].)

“Absent a compelling state interest, a State may not burden the right to travel[.]” (Dunn v. Blumstein (1972) 405 U.S. 330, 342 [discussing durational residence requirements for right to vote].) “Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.” (Id.) “[T]hey are unconstitutional unless the State can demonstrate that such laws are ‘necessary to promote a compelling governmental interest.’” (Id.) “Statutes affecting constitutional rights must be drawn with ‘precision,’ . . . and must be ‘tailored’ to serve their legitimate objectives.” (Id. at 343.) “[F]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” (Id.)

However, courts do not “apply the strict constitutional test to legislation . . . which does not penalize travel and resettlement but merely makes it more difficult for the outsider to establish his residence in the place of his choosing.” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal. 3d 582, 602–03.) “[E]ven if an enactment affects interstate travel, it still must be sustained against a constitutional attack if the invasion is inconsequential and does not unreasonably burden freedom of movement.” (R. H. Macy & Co. v. Contra Costa Cnty. (1990) 226 Cal. App. 3d 352, 368 [finding law that increased taxation on property when it is newly purchased based on fair market value at the time of purchase does not violate right to travel].)

When an act “does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies.” (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 481.) “[S]tatutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Id. at 482 [emphasis in original].) “Where there are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’” (Id.)

As stated above, Mercy House implemented and enforced a policy that included a strict no walk-up, no walk-out transportation policy at the Bridges shelter, its contracts with the County also included anti-loitering provisions. Plaintiffs argue that the restrictions did not simply restrict the mode of transportation, but all travel surrounding the shelter. Plaintiffs state that Mercy House’s policy banning “loitering” within a mile of the shelter does not define the term “loitering.” (ROA 991, Ex. 2 [MERCY HOUSE 00752-00920].) Plaintiffs contend that the written no-walk-up policy and no-loitering policy does not contain exceptions and applies to all shelter residents at all times. (Pltfs.’ Evid., Ex. 16 [Mercy House PMK Drissen Dep. Tr., Vol. 1, 2025-09-08 at 128:1-6 & 161:6-162:14, 186:22-187:1].)

Plaintiffs argue that the lock-in/shut-out policy expressly targets unhoused shelter residents, prohibiting them from walking or biking on sidewalks while imposing no comparable restrictions on shelter staff, neighboring businesses, or any other person. (ROA 991, Ex. 2 [Orange County’s contract with Mercy House for the Provision of Shelter Services at Bridges from December 14, 2016 through June 2018 (MERCY HOUSE 00752-00920 at 00805 (“[c]lients will not be allowed to loiter in the surrounding neighborhood”), -00794 (prohibiting clients from walking into and out of Bridges)].) Plaintiffs note that Orange County received public comment related to the development of the Bridges shelter that expressed an animus to unhoused persons walking in the neighborhood of the shelter. (ROA 989, Ex. 53 [June 26, 2015 Community Comment Cards Received by Orange County [OC016708, OC 016725, OC 016754, OC 016778, OC 017267]].)

The court finds that there are triable issues of fact as to the nature of the transportation policy and how much it restricted Plaintiffs’ right to travel. Further, there are triable issues of fact as to the rational basis or compelling state interest supporting the transportation policy, and whether there was an discriminatory animus underlying the policy. As there are triable issues of fact preventing the court from determining the policy’s constitutionality as a matter of law, the court denies summary adjudication of the Tenth and Eleventh Causes of Action based on this ground.

2. Governmental Immunity/State Actor

Mercy House also argues it cannot be liable for enforcing a County-mandated policy, since governmental entities are immune from liability for policy-making decisions. (Cal. Gov. Code §§ 815.2, 818.2.)

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Gov't Code § 820.2.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Cal. Gov't Code § 815.2(b).) “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Cal. Gov't Code § 818.2.)

“[I]mmunity should attach to those decisions which involve ‘basic policy’ choices which, because they constitute an exercise of governmental administration, should ‘remain beyond the range of judicial inquiry.’” (Ronald S. v. Cnty. of San Diego (1993) 16 Cal. App. 4th 887, 896.) “A governmental decision involving essentially political considerations is regarded as 'discretionary' and thus immune from liability.” (Taylor v. Buff (1985) 172 Cal. App. 3d 384, 390.) “The category of political decisionmaking includes questions of budgetary and fiscal policy, personnel administration standards, allocation of available resources according to variable priorities of need, and choices between competing plans for accomplishing approved objectives.” (Id.)

“The immunity afforded by Government Code sections 818.2 . . . attaches only to discretionary functions.” (Nunn v. State of California (1984) 35 Cal. 3d 616, 622.) “[I]mmunity attaches to quasi-legislative policy decision-making areas which are sufficiently sensitive to justify blanket immunity,” not to implementation of those policies through “operational” or “street level” decisions. (Id.) The immunity does not apply to “‘lowerlevel, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.’” (Greenwood v. City of Los Angeles (2023) 89 Cal. App. 5th 851, 860.)

Here, the enforcement of the subject transportation policy and the scope of the policy involve triable issues of fact. Hence, whether government immunity applies also involves triable issues of fact. To the extent that the policies involved street-level decisions rather than discretionary policymaking decisions, they would not be immune.

Moreover, the immunities under the Government Tort Claims Act do not affect Plaintiffs’ “right to obtain relief other than money or damages against a public entity or public employee.” (Cal. Gov't Code § 814; 4AC at p. 83 [Relief Requested includes “[t]hat the Court issue a declaration, a writ of mandate, and an injunction prohibiting Defendants from engaging in the unlawful conduct described above.”].)

Further, Plaintiffs argue that Mercy House can be liable for constitutional violations even as a private party if it is shown that it is a state actor. A private party may be liable when “he is a willful participant in joint action with the State or its agents.” (Julian v. Mission Cmty. Hosp. (2017) 11 Cal. App. 5th 360, 396.) There are “four tests for determining whether a private person acted under color of law: (1) the public function test, (2) the joint action test, (3) the government nexus test, and (4) the government coercion or compulsion test.” (Id.)

Under the joint action test, “courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” (Id. at 398.) “The test focuses on whether the state has ‘so far insinuated itself into a position of interdependence with [the private actor] that [the private actor] must be recognized as a joint participant in the challenged activity.” (Id.) As stated above, there are triable issues of fact as the level of control the County has over Mercy House based on their contractual agreement, which raises triable issues of fact as to whether Mercy House may be liable as a state actor for constitutional violations.

As there are triable issues of fact as to whether governmental immunity applies and/or whether Mercy House is a state actor, the court DENIES summary adjudication as to the Tenth and Eleventh Causes of Action based on these grounds.

3. Mootness

Mercy House also argues that these claims are moot because Mercy House claims that in or about July 2025, Mercy House amended its transportation policy to encourage but not mandate shuttle use, eliminating behavioral contracts for walking violations. (Long Dec. ¶ 13.) Mercy House states that when it learned that the County amended the transportation policy, Mercy House promptly implemented the new policy which now allows clients to enter and exit the facility on foot. (Id.)

“A case becomes moot—and therefore no longer a “Case” or “Controversy” for purposes of Article III—“when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (Already, LLC v. Nike, Inc. (2013) 568 U.S. 85, 91.) “[T]he case is moot if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.’” (Id.) “[A]n ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages’ of the litigation.” (Id. at 90-91.)

However, “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” (Id. at 91.) “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” (Id.) “The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated.” (Roger v.

Cnty. of Riverside (2020) 44 Cal. App. 5th 510, 530.) When “respondents have presented no evidence they have or will develop a [legally compliant] policy,” “they have not shown the errors that occurred . . . are not likely to recur.” (Id. at 531.)

A court may exercise its discretion to decide an issue that is moot “(1) when the case presents an issue of broad public interest that is likely to recur []; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [].” (Ghost Golf, Inc., 102 Cal. App. 5th at 101.) “[T]he voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere violation of a party the challenged practices may be resumed.” (United Farm Workers of Am., AFL- CIO v.

Dutra Farms (2000) 83 Cal. App. 4th 1146, 1164 [noting that dissolution of committee that engaged in illegal practices did not render claim moot when defendant could form another unlawful committee absent injunctive relief].) If there is evidence that a defendant “were likely to repeat its allegedly illegal conduct, the case would not be moot.” (Sec. & Exch. Comm'n v. Med. Comm. for Hum. Rts. (1972) 404 U.S. 403, 406.)

Plaintiffs argue that County’s contract with Mercy House for the provision of shelter services at Bridges for 2025-2026 still includes the following “no walk-up” provision: “Transportation plans must accommodate ... a no walk up or walk out model.” (ROA 991, Ex. 5 [County of Orange, OC Procurement, Amendment No. 8 to Contract MA-017-22011902 for Bridges at Kraemer Place Year-Round Emergency Shelter Services 2025- 2026 at 9].) Plaintiffs also claim that Mercy House still enforces the prohibition on walking and biking in and out of Bridges. (ROA 989, Ex. 52 [Mercy House PMK Drissen Dep.

Tr., Vol. 1, 2025-09-08, at 174:2-5, 8-23]; ROA 993, Ex. 29 [Mercy House PMK Drissen Dep. Tr., Vol. 2, 2025-09-16, at 432:7-10; 434:10- 13]; ROA 993, Ex. 21 [Oma’s Angel Foundation Zimmermann Dep. Tr., Vol. 2, 2025-10-10, at 324:17-21 (“I'm still spending time to this day on trying to help people that can't handle the lock-in policy. We are still spending time to this day helping people that can't handle the lock-in policy and the inhumane conditions in the shelters, to this day.”)]; ROA #941 ¶ 9 [“I continue to receive complaints from unhoused persons who cannot handle the lock-in policy, and are unwilling to stay at Bridges.”].)

As Plaintiffs present evidence that the challenged policy may still be in effect, there are triable issues of fact as to whether these claims are moot. The court DENIES summary adjudication as to the Tenth and Eleventh Causes of Action based on mootness.

4. Standing

Mercy House contends that none of the Plaintiffs who stayed at Mercy House have alleged these constitutional claims against Mercy House, and the other Plaintiff Powitzky and Oma’s Angel Foundation, neither of whom stayed at Bridges, lack standing to bring them.

As a threshold matter, the only Plaintiff asserting these two causes of action is Wendy Powitzky. The court already struck Plaintiffs Hogan and Martinez from the 4AC and sustained the County’s demurrer as to the 10th and 11th COAs as to Plaintiff Oma’s Angel Foundation twice, leaving only Plaintiff Powitzky. (ROA 613 at pp. 1-2.)

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (CCP § 367.) Thus, “the Legislature may authorize public interest lawsuits by a plaintiff even if that plaintiff has not been injured by the claimed violation.” (Muha v. Experian Info. Sols., Inc. (2024) 106 Cal. App. 5th 199, 208.) “[A]s a general matter, to have standing to pursue a claim for damages in the courts of California, a plaintiff must be beneficially interested in the claims he is pursuing.” (Id. at 207.)

“California courts are not subject to the restrictions that Article III imposes on federal judicial power, and, unlike the federal Constitution, the California Constitution has no case-orcontroversy requirement.” (Parsonage v. Wal-Mart Assocs., Inc. (2026) 118 Cal. App. 5th 399, 411.) “The California Legislature is therefore free to grant standing to sue in California courts absent concrete harm.” (Id.) “To ensure that relevant facts and issues are adequately presented, California statutes generally require that plaintiffs have suffered some injury.” (Id.) But under California law, “injury” for standing purposes means “some ‘invasion of the plaintiff's legally protected interests.’” (Id.)

To have standing, “a party attacking the constitutionality of the statute must show some actual or threatened injury.” (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 412.) “A person who invokes the judicial process lacks standing if he, or those whom he properly represents, ‘does not have a real interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.’” (Id. at 413.) “To have standing, a party must be beneficially interested in the controversy; that is, he or she must have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’” (Id.) “The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Id.) “This standard ‘is equivalent to the federal ‘injury in fact’ test[.]’” (Id.) “Without standing, there is no actual or justiciable controversy, and courts will not entertain such cases.’” (Id.)

Plaintiffs contend that Ms. Powitzky has direct standing because she remains unhoused in Orange County and faces ongoing injury. (ROA 1009, Ex. 1 [Powitzky Tr. at 34:18–35:5].) Despite remaining unhoused, Ms. Powitzky testified that she would not stay at another shelter in part because of the lock-in/shut-out policy. (ROA 993, Ex. 20 [Powitzky Dep. Tr. 151:23-152:3].) Plaintiffs argue that Mercy House continues to impose the lockin/shut-out policy—or at minimum, can reimpose the policy at any time—a cognizable threat to Ms. Powitzky’s access to shelter.

As there are triable issues of fact as to Ms. Powitzky’s standing, the court DENIES summary adjudication as to the Tenth and Eleventh Causes of Action based on lack of standing.

C. Twelfth Cause of Action: Breach of Implied Warranty of Habitability based on California Government Code Sections 810, 815, et seq.

Mercy House contends that Plaintiffs cannot bring a claim for implied warranty of habitability as there is no lease agreement between the parties. “[T]here is in California a common law implied warranty of habitability in residential leases, and that under this warranty a landlord ‘covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.’” (Knight v. Hallsthammar (1981) 29 Cal. 3d 46, 52.)

Though it is undisputed that the individual Plaintiffs signed client expectations forms when they were onboarding at Bridges, Mercy House contends these forms were not residential leases. Plaintiffs argue that these documents outline the terms of occupancy, and therefore should be considered residential leases in California. However, Plaintiffs cite to no authority suggesting that such documents are sufficient to constitute a lease.

As with the City of Anaheim’s and Illumination Foundation’s motions for summary adjudication concerning this issue, the court grants motion for summary adjudication as to the Twelfth Cause of Action as there is no evidence of a lease between Mercy House and Plaintiffs to support this cause of action.

D. Thirteenth Cause of Action: Common Law Negligence based on California Government Code Sections 810, 815, et seq.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; Mark K. v. Roman Catholic Archbishop of Los Angeles (1998) 67 Cal.App.4th 603, 612; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Relying primarily on the opinion of its expert, John Pagliassotti, Mercy House contends that its maintenance of the facility met the applicable standard of care and therefore there is no evidence supporting Plaintiffs’ claim of common law negligence. Mr. Pagliassotti stated: There is a three‐part standard of care for property managers when addressing maintenance and habitability concerns: First, managers must promptly acknowledge complaints raised by occupants. Second, they must respond within a reasonable period of time, taking into account both the nature and the severity of the reported condition.

The urgency of the response must be proportional to the risk presented: for example, an aesthetic issue such as peeling exterior paint does not warrant the same immediacy as a condition posing an imminent safety hazard, such as a deteriorating load‐bearing wall. Finally, the standard of care requires managers to reasonably pursue occupant complaints with reasonable diligence and continuity until the reported condition is resolved. Conditions that can lead to occupant complaints can sometimes be prevented through proactive scheduled maintenance, regular property inspections, and by implementing a clear policy that defines the criteria and expectations for proper maintenance. (Pagliassotti Dec. ¶ 6.)

Mercy House’s expert explains that the applicable standard is one of reasonableness—not perfection—as perfection is neither attainable nor required within accepted professional practice or under applicable state or local health and safety codes. (Pagliassotti Dec. ¶ 7.) He explains that Mercy House has met the standard of care required: First, no federal, state, or local health and safety code violations have been issued against the Bridges facility, demonstrating compliance with objective regulatory requirements.

Second, Mercy House has implemented a clear and explicit policy governing sanitary conditions at the property. Third, Mercy House maintains active contracts with vendors whose services directly support and contribute to the cleanliness and sanitation of the premises. Fourth, Mercy House has established and follows a formal inspection policy specifically directed at evaluating the facility for cleanliness. In addition, during its inspections, the County of Orange has not identified any significant concerns related to cleanliness or habitability, further confirming that the property is being maintained in accordance with accepted professional standards.

Finally, at least one of the Plaintiffs has acknowledged that her complaints were not ignored and were, in fact, addressed by Mercy House, underscoring Mercy House’s responsiveness and adherence to reasonable management practices. (Pagliassotti Dec. ¶ 9.)

Mercy House asserts that it maintained policies and operational procedures at Bridges intended to promote sanitation, cleanliness, and timely maintenance and repair of facilities used by guests, including restrooms, toilets, showers, and urinals. ((Drissen Dec. ¶¶ 9, 10, 13-19, 25, 26, Exhibits J, K, N, O, P and Q.) Mercy House states that its grievance policy included a process for receiving grievances, documenting them, routing them to appropriate personnel for review, and responding to the guest within a reasonable time. (Drissen Dec. ¶¶ 27, 29.) Mercy House also states that it complies with the Orange County Municipal Code as it has 200 beds, and 21 toilets/urinals, and 26 showers.

Plaintiffs, however, argue that even under the standard set forth by Mercy House’s expert, Mercy House did not meet the applicable standard of care. Plaintiffs argue that Mercy House was negligent with respect to its duty to maintain the facilities in a habitable condition.

Plaintiffs claim they were provided substandard, uninhabitable conditions at Bridges and their complaints often went ignored, indicating failure to consistently maintain various records and documentation related to Bridges facility operations. (Pltfs.’ Evid., Ex. 8 [Brooks Dep. Tr., at 109:7-9 (testifying “[n]o, not that I’m aware of” when asked whether he was “aware of any grievances filed by Bridges residents about the shuttle system”)]; ROA #939 at ¶ 17 [“I wrote a letter to the shelter director, Austin, complaining about this restrictive policy on making phone calls while sitting in my car. . . .

I never received a response.”]; Pltfs.’ Evid., Ex. 10 [Rutter Dep. Tr., 133:6-19 (testifying that Plaintiffs’ complaints often went unaddressed for days and weeks at a time)]; id. [Rutter Dep. Tr., 122:17-123:12 (testifying that none of Plaintiff’s complaints regarding cleanliness at Bridges were addressed to her satisfaction—or even addressed at all)]; id., Ex. 11 [Bui Dep. Tr. at 211:22-212:5 (“[I]t was extremely difficult to get a complaint form because they didn’t have them available, and . . . most people didn’t even know where they were.”)]; id., Ex. 9 [Mercy House PMK Drissen Dep.

Tr., Vol. 2, 2025-09-16, at 344:23-345:19 (admitting that he “[didn’t] know if there was any specific changes” to “the number of bathrooms or cleaning schedules” after Mr. Bui complained that “the showers and bathroom areas are often dirty and are not cleaned with sufficient frequency”)].)

Plaintiffs contend that Bridges did not provide shelter residents with sanitary and/or functional toilet and shower facilities. (Pltfs.’ Evid., Ex. 10 [Rutter Dep. Tr. at 113:16-25, 115:14-22, 123:3-12, 130:9-134:5, 160:18-161:7, 163:25-164:11, 169:8-171:3]; id., Ex. 11 [Bui Dep. Tr., at 204:21-205:6, 235:22-241:6, 242:13-19, 244:12-19, 246:6-25]; Id., Ex. 16 [Mercy House PMK Drissen Dep. Tr., Vol. 1, 2025-09-08 at 219:13-23]; id., Ex. 18 [Long Dep. Tr. at 230:10-233:2].) Plaintiffs claim that shelter residents suffered from repeated insect infestations while residing at Bridges. (Pltfs.’ Evid., Ex. 10 [Rutter Dep.

Tr. at 111:25-112:19]; id., Ex. 11 [Bui Dep. Tr. at 204:21-205:6, 229:14-233:1, 234:25- 235:17, 246:6-25].) Plaintiffs assert that Bridges staff did not enforce no-smoking provisions, resulting in secondhand smoke in communal living spaces. (Pltfs.’ Evid., Ex. 11 [Bui Dep. Tr. at 204:11-205:6, 220:15-23].) Plaintiffs state that shelter residents experienced medical illnesses and ailments while residing at Bridges. (Pltfs.’ Evid., Ex. 10 [Rutter Dep. Tr. at 171:9-176:3]; id., Ex. 11 [Bui Dep. Tr. at 49:12-50:7].)

Plaintiffs claim that Bridges did not have or otherwise maintain a ratio of one sanitary and functional toilet and shower for every ten shelter residents. (Pltfs.’ Evid., Ex. 5 [Clark Dep. Tr., Vol. 2, 2025-08-25 at 354:8- 17]; id., Ex. 9 [Mercy House PMK Drissen Dep. Tr., Vol. 2, 2025-09-16 at 353:14-25]; id., Ex. 6 [Betances Dep. Tr., Vol. 1, 2025-09-11 at 155:14-16, 159:4-162:22, 164:15- 168:4, 184:19-185:23, 193:9-195:14]; id., Ex. 10 [Rutter Dep. Tr. at 131:22–133:19].)

In addition, Plaintiffs Utzman, Rutter, Bui, and Ogle all claim that they experienced issues with the cleanliness of the restrooms while residing at Bridges. (Pltfs.’ Evid.,, Ex. 7 [Plaintiff Cyndi Utzman’s Responses to Defendant Mercy House Living Centers’ Special Interrogatories, Set No. 1 (Responses to Special Interrogatory Nos. 20-23 [describing how “the entire time Plaintiff resided at the SUBJECT PREMISES, from August 2018 to October 2018” “[t]he bathrooms were dirty and not properly cleaned”])]; Id., Ex. 1 [Plaintiff Joshua Ogle’s Responses to Defendant Mercy House Living Centers’ Special Interrogatories, Set No. 1 (Responses to Special Interrogatory Nos. 20-24 [describing how “during the time between August 2018 and November 2019,” “[w]hen Mr.

Ogle lived at Bridges, the bathrooms were unmaintained and unsanitary” and he “saw feces in the showers and people with open wounds that leaked onto the floor”])]; Id., Ex. 10 [Rutter Dep. Tr. at 23:20-24 (describing time period when she lived at Bridges), 113:10-116:2 (describing mold, vomit, and filth in the ladies’ room), 130:22-131:2 (testifying that “all of the shower stalls were” dirty “every day at Bridges”); 132:9-133:19 (testifying that she complained about the broken toilets, which would go out of service “once per week” and stay out for anywhere from a day to “a few days” or even to “a week”)]; id., Ex. 11 [Bui Dep.

Tr. at 245:12-247:17 (describing flies in the showers while he lived at Bridges), 204:11-20 (describing time period when he lived at Bridges)].)

Mercy House’s expert confirmed that “if a shelter operator discovers that they do not have enough working toilets to maintain the [C]ounty mandated per person ratio, the shelter operator needs to increase the number of toilets.” (Id. at 178:24- 179:10 [emphasis added].) Plaintiffs note that Mercy House failed to provide evidence of how many working toilets were maintained at the shelter.

Plaintiffs also argue that Mercy House’s expert is not qualified to testify as to habitability standards for homeless shelters and not sufficiently familiar with the conditions at Bridges to offer a credible, informed opinion as to whether Mercy House has satisfied its duty of care. “Opinions of value and other expert opinions, even though uncontradicted, are worth no more than the reasons and factual data upon which they are based.” (Griffith v. Los Angeles Cnty. (1968) 267 Cal. App. 2d 837, 847.) “An expert's opinion is no better than the reasons given for it. “ (Id.) “If his opinion is not based upon facts otherwise proved . . . it cannot rise to the dignity of substantial evidence.” (Id.)

Plaintiffs argue that Mr. Pagliassotti lacks the requisite educational and professional experience to testify about habitability specifically with respect to homeless shelters. Plaintiffs contend that the only experience listed on his curriculum vitae that deals specifically with issues surrounding homelessness are two online courses that Mr. Pagliassotti took within the ten days leading up to his deposition, which was after the filing of his declaration in support of Mercy House’s instant motion.

Additionally, at the time of his deposition, Mr. Pagliassotti had only toured the Bridges facility two days prior for one hour, also after the filing of his declaration. Plaintiffs contend that Mercy House’s expert, Mr. Pagliassotti, testified that he had not reviewed Mercy House’s “active contracts with vendors” to support “the cleanliness and sanitation of [Bridges’] premises” and lacked familiarity with them, including with respect to details regarding the specific vendors, the length of such contracts, and any interruptions to those contracts. (Pltfs.’ Evid., Ex. 3 [Pagliassotti Dep.

Tr. at 273:13-275:13].)

Mercy House objects to the fact that Plaintiffs provide no expert evidence in rebuttal to its expert’s opinion. “When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party's claims, the opposing party's burden is to produce a competent expert declaration to the contrary.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 761–62.) However, Plaintiffs are not arguing that a different standard of care applies, requiring expert evidence. Rather, Plaintiffs have identified triable issues of fact as to whether Mercy House met its own expert’s stated standard of care.

As there are several triable issues of fact as to whether Mercy House met the applicable standard of care, the court DENIES summary adjudication of the Thirteenth Cause of Action.

Defendant Mercy House is ordered to give notice of this ruling.

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MIDNIGHT MISSION’S MOTIONS FOR SUMMARY JUDGMENT AND ADJUDICATION

Defendant Midnight Mission’s (“Midnight Mission”) Motion for Summary Judgment is DENIED. Midnight Mission’s alternative Motion for Summary Adjudication is GRANTED as to Issue No. 7 as to the Twelfth Cause of Action based on Plaintiffs’ failure to provide evidence of a lease between Plaintiffs and Midnight Mission to support a breach of the warranty of habitability claim. The Court DENIES summary adjudication as to Issue Nos. 1-6, and 8-9.

The court OVERRULES Plaintiffs’ objections to the Prentice Declaration and Lancaster Deposition, as these objections go to the weight and not admissibility of this evidence. The court declines to rule on Plaintiffs’ objections to Midnight Mission’s Separate Statement as those statements are not evidence.

In its Notice, Midnight Mission states that it seeks summary judgment, or summary adjudication of the following issues: • Issue No. 1: Midnight Mission moves for summary adjudication as to Plaintiffs' First Cause of Action for Disparate Treatment Discrimination Based on Sex: Hostile Environment Harassment (California Employment and Fair Housing Act, Cal. Gov’t Code § 12955 et seq.; Cal. Gov’t Code §§ 810, 815 et seq.) because Plaintiffs failed to exhaust mandatory administrative remedies for their FEHA-based claim. • Issue No. 2: Midnight Mission moves for summary adjudication as to Plaintiffs' Second Cause of Action for Disparate Treatment Discrimination Based on Sex: Quid Pro Quo Harassment (California Employment and Fair Housing Act, Cal.

Gov’t Code § 12955 et seq.; Cal. Gov’t Code §§ 810, 815 et seq.) because Plaintiffs failed to exhaust mandatory administrative remedies for their FEHA-based claim. • Issue No. 3: Midnight Mission moves for summary adjudication as to Plaintiffs' Fifth Cause of Action for Invasion of Privacy because any alleged invasion of privacy by Midnight Mission's employees falls outside the scope of employment.

• Issue No. 4: Midnight Mission moves for summary adjudication as to Plaintiffs' Sixth Cause of Action for Sexual Battery because any alleged sexual battery by Midnight Mission's employees falls outside the scope of employment. • Issue No. 5: Midnight Mission moves for summary adjudication as to Plaintiffs' Eight Cause of Action for Retaliation (Cal. Gov’t Code § 12955 et seq., Cal. Gov’t Code §§ 810, 815 et seq.) because Plaintiffs failed to exhaust mandatory administrative remedies for their FEHA-based claim. • Issue No. 6: Midnight Mission moves for summary adjudication as to Plaintiffs' Ninth Cause of Action for Retaliation (Cal.

Constitution, Article I, §§ 2-3) because Plaintiffs fail to allege any retaliatory acts in response to protected speech. • Issue No. 7: Midnight Mission moves for summary adjudication as to Plaintiffs' Twelfth Cause of Action for Breach of the Implied Warranty of Habitability because they were not tenants and had no lease with Midnight Mission. • Issue No. 8: Midnight Mission moves for summary adjudication as to Plaintiffs' Thirteenth Cause of Action for Negligence because Midnight Mission is subject to governmental immunity, and the undisputed material facts negate essential elements and/or establish complete defenses, warranting summary adjudication. • Issue No. 9: Midnight Mission moves for summary adjudication on the issue that Midnight Mission is entitled to quasi-governmental immunity.

While the issues are framed slightly differently in Midnight Mission’s Separate Statement, the court will address the issues as they were defined in the Notice.

It is undisputed that Midnight Mission is a nonprofit that provides emergency shelter and related services pursuant to agreements with public entities and program guidelines. The Courtyard shelter was operated by Midnight Mission under a County of Orange contract to provide shelter services and beds at the former Santa Ana Transit Terminal.

I. Issue Nos. 1, 2, 5: FEHA Exhaustion (1st, 2nd, 8th COA)

Midnight Mission argues that Plaintiffs’ Fair Employment and Housing Act ("FEHA") claims (the First, Second and Eighth Causes of Action) against Midnight Mission fail because Plaintiffs did not file administrative complaints with the California Civil Rights Department or obtain right-to-sue notices against Midnight Mission for the claims they now assert.

“Under the doctrine of exhaustion of administrative remedies, 'where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.'” (Mission Hous. Dev. Co. v. City & Cnty. of San Francisco (1997) 59 Cal. App. 4th 55, 66.) Pursuant to Government Code section 12960, “Any person claiming to be aggrieved by an alleged unlawful practice may file with the department [California Civil Rights Department (“CRD”)] a verified complaint . . .” (Cal.

Gov't Code § 12960(c).) “[I]f a civil action is not brought by the department pursuant to subdivision (a) within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought pursuant to subdivision (a), the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice.” (Cal. Gov't Code § 12965(c)(1)(A).) Exhausting administrative remedies under FEHA is a “jurisdictional prerequisite to resort to the courts.” (Ellis v.

U.S. Sec. Assocs. (2014) 224 Cal. App. 4th 1213, 1229.)

However, there is no exhaustion requirement for housing discrimination cases. “An aggrieved person may commence a civil action [for housing discrimination] whether or not a complaint has been filed under this part and without regard to the status of any complaint.” (Cal. Gov't Code § 12989.1(b).) Thus, the court DENIES summary adjudication as Issue Nos. 1, 2 and 5.

Midnight Mission also argues that Plaintiff Utzman failed to exhaust administrative remedies for her retaliation claim under the Ninth Cause of Action, but this is not an issue for which Midnight Mission sought summary adjudication in the Notice. Therefore, the court declines to reach this issue.

II. Issue Nos. 3 and 4: Scope of Employment/Vicarious Liability (5th and 6th COAs)

Midnight Mission seeks summary adjudication of the Fifth Cause of Action for invasion of privacy and Sixth Cause of Action for sexual battery on the grounds that it is not vicariously liable for the conduct of its employees that are outside the employees’ scope of employment.

“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 208.) “[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” (Id. at 209.) “Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment.” (Id.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact.” (Id. at 213 [emphasis added].)

“The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.” (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 219.) “[T]he proper inquiry is not ‘whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.’” (Id.) “[T]he faultless employer may be held vicariously liable for the employee's actions on the theory that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” (Juarez v.

Boy Scouts of Am., Inc. (2000) 81 Cal. App. 4th 377, 393.) “The employer's liability thus extends beyond the employer's actual or possible control of the employee to include risks inherent in or created by the enterprise.” (Id. at 394.) However, “the imposition of tort liability for a third party's sexual misconduct requires that direct negligence be established.” (Id. at 395.)

“Where an employee pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer.” (Alma W. v. Oakland Unified Sch. Dist. (1981) 123 Cal. App. 3d 133, 140.) “If an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Id.)

Midnight Mission argues that the alleged sexual harassment falls outside the scope of employment, and that Midnight Mission did not create conditions that would allow the misconduct alleged against its employees.

Plaintiffs argue that, like the police officer in Mary M., Midnight Mission staff has coercive authority over Courtyard residents, as staff controlled Plaintiffs’ access to their home. Plaintiffs argue that staff at Midnight Mission had power over Plaintiffs’ access to shelter, and Deborah Kraft and Jordynne Lancaster were too scared to complain about the sexual harassment they suffered because they feared being evicted from the shelter if they complained, and they did not want to lose their home. (Pltfs.’ Evid., Ex. 2 [Lancaster Dep.

Tr., at 114:19-116:13, 162:18-24, 164:7-21, 166:24-167:20, 170:11-15]; id., Ex. 3 [Kraft Dep. Tr., at 73:10-74:4]; MM’s Evid., Ex. H [Kraft’s Resp. to Midnight Mission’s Special Interrogatories, Set One, at 10:11-11:19].) Plaintiffs assert that Midnight Mission created opportunities for male staff to verbally and physically sexually harass women residents. (ROA 1007, Ex. 5 [Still Dec. at p. 20].) Plaintiffs contend that because Midnight Mission’s staff’s positions gave them “considerable power and authority” over the residents’ access to the shelter, the risk of tortious conduct was reasonably foreseeable. (Mary M. v.

City of Los Angeles (1991) 54 Cal. 3d 202, 217 [stating that it was neither “startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct].)

The court finds that based on the evidence provided by the parties, whether Midnight Mission’s employees acted within the scope of employment, whether the employees had coercive power over Plaintiffs, and whether the workplace environment and duties of the employee engendered the misconduct, are all questions of fact that cannot be resolved as a matter of law. Thus, the court DENIES summary adjudication of Issue Nos. 3 and 4.

III. Issue No. 6: Retaliation (9th COA)

Midnight Mission seeks summary adjudication of the Ninth Cause of Action for retaliation on the grounds that there is no evidence of retaliatory conduct, or any conduct connected with protected speech.

It is unlawful “[f]or any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner's dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part.” (Cal.

Gov't Code § 12955(f).) “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by Section 12955 or 12955.1.” (Cal. Gov't Code § 12955.7.)

“‘Adverse action’ means action that harms or has a negative effect on an aggrieved person.” (Cal. Code Regs. tit. 2, § 12005(b).) “[P]roximity in time between the protected action and [the] allegedly retaliatory [adverse action]” is sufficient to create an inference of causation between a causal event and the retaliatory adverse action. (Zirpel v. Alki David Prods., Inc. (2023) 93 Cal. App. 5th 563, 578.)

It is undisputed that a Courtyard male staff member ejected Plaintiff Cyndi Utzman in or around February 2019 after she rebuffed a hug, with the staff member allegedly accusing her of intoxication and “throw[ing] her out of the shelter into the rain. (UF 83.) Plaintiffs claim that Courtyard staff forced Ms. Utzman to leave the Courtyard after she voiced her objections to this conduct. (Pltfs.’ Evid., Ex. 4.) Plaintiffs point out that Ms. Utzman’s ejection was immediately following her rejection of a physical advance. (Pltfs.’ Evid., Ex. 4 [Utzman Dep.

Tr. at 331:6- 21].) Plaintiffs contend that Doris Starling did not allow Ms. Utzman to retrieve her belongings from the Courtyard a few weeks after Ms. Utzman was evicted, and accused Ms. Utzman of “spy[ing]” on The Courtyard to help the ACLU with its report that was critical of the Courtyard. (MM’s Evid., Ex. I [Utzman Resp. to Midnight Mission’s Special Interrogatories at 28:10- 16].) It is undisputed that after publication of the ACLU Report in March 2019, Courtyard’s Director/Site Manager, Doris Starling, called Ms.

Utzman a “little bitch,” accused her of “pretending to be homeless,” prevented her from retrieving property, and told her not to return. (UF 84.)

Plaintiffs also assert that Jordynne Lancaster was refused re-entry to The Courtyard because she complained about the conditions there. (Pltfs.’ Evid., Ex. 2 [Lancaster Dep. Tr. at 123:15-2, 130:15-131:2].) Plaintiffs state that Doris Starling admitted that she refused to let Ms. Lancaster back into The Courtyard because she had complained. (Pltfs.’ Evid., Ex. 5 [Starling Dep. Tr., at 144:13-145:4].)

Thus, there is a genuine dispute of material fact regarding whether Midnight Mission retaliated against Plaintiffs because of the complaints they made about the conditions at the shelter. Accordingly, the court DENIES summary adjudication of Issue No.

6.

Midnight Mission also makes the argument that the retaliation claim fails because there is no showing of ongoing or prospective harm after Courtyard’s February 2021 closure. However, this was not an issue for which Midnight Mission sought adjudication in its Notice of Motion, so the court declines to reach this issue.

IV. Issue No. 7: Implied Warranty of Habitability (12th COA)

Midnight Mission argues that the Twelfth Cause of Action for Breach of the Implied Warranty of Habitability fails because Plaintiffs were not tenants and had no lease, written or oral, with Midnight Mission. Midnight Mission argues that Plaintiffs identify rules, curfews, beds, and program conditions—but no lease agreements with Midnight Mission, no rent, and no exclusive possessory interests indicative of a tenancy.

“[T]here is in California a common law implied warranty of habitability in residential leases, and that under this warranty a landlord ‘covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.’” (Knight v. Hallsthammar (1981) 29 Cal. 3d 46, 52.)

Plaintiffs argue that there was a lease because Orange County paid Midnight Mission to provide shelter to Plaintiffs. Plaintiffs also contend they signed documents that outlined the terms of occupancy. However, Plaintiffs cite to no authority showing that these facts would establish a lease between Plaintiffs and Midnight Mission that would create an implied warranty of habitability.

Therefore, the court GRANTS summary adjudication as to Issue No. 7, finding that the Twelfth Cause of Action fails as a matter of law as there is no evidence of a lease to support the claim.

V. Issue No. 9: Governmental Immunity

Midnight Mission argues that as a private entity acting in concert with state agents, it can claim qualified immunity in civil actions. Midnight Mission contends that it was, at all relevant times, performing a government function, and therefore it is immune in this action in the same way as a public entity. Plaintiffs do not dispute that Midnight Mission is a public entity for purposes of immunity, but argue that the conduct at issue is not subject to governmental immunity.

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Gov't Code § 820.2.) “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Cal. Gov't Code § 815.2(b).) “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” (Cal. Gov't Code § 818.2.)

“[I]mmunity should attach to those decisions which involve ‘basic policy’ choices which, because they constitute an exercise of governmental administration, should ‘remain beyond the range of judicial inquiry.’” (Ronald S. v. Cnty. of San Diego (1993) 16 Cal. App. 4th 887, 896.) “A governmental decision involving essentially political considerations is regarded as 'discretionary' and thus immune from liability.” (Taylor v. Buff (1985) 172 Cal. App. 3d 384, 390.) “The category of political decisionmaking includes questions of budgetary and fiscal policy, personnel administration standards, allocation of available resources according to variable priorities of need, and choices between competing plans for accomplishing approved objectives.” (Id.)

“The immunity afforded by Government Code sections 818.2 . . . attaches only to discretionary functions.” (Nunn v. State of California (1984) 35 Cal. 3d 616, 622.) “[I]mmunity attaches to quasi-legislative policy decision-making areas which are sufficiently sensitive to justify blanket immunity,” not to implementation of those policies through “operational” or “street level” decisions. (Id.) The immunity does not apply to “‘lowerlevel, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.’” (Greenwood v. City of Los Angeles (2023) 89 Cal. App. 5th 851, 860.)

Plaintiffs argue that Midnight Mission’s day-to-day operations were not the kind of discretionary decisions entitled to government immunity under California Government Code Section 815.2. Plaintiffs contend that the decisions of Midnight Mission staff to grope and make sexually inappropriate comments to Plaintiffs Lancaster, Kraft and Utzman are exactly the sort of day-to-day “operational” or “street level” decisions to which California courts consistently refuse to extend immunity. Plaintiffs also argue that the decisions of Midnight Mission to provide substandard living conditions were not discretionary policy decisions, but the sort of operational decisions that are not entitled to immunity. The court agrees that the subject alleged misconduct is not the type of conduct that is subject to governmental immunity.

Midnight Mission argues that it is immune to liability for its discretionary determinations as to whether to investigate harassment claims. Discretionary immunity “is limited to policy and planning decisions, and does not reach ‘lower level decisions that merely implement a basic policy already formulated.’” (K.C. v. Cnty. of Merced (2025) 109 Cal. App. 5th 606, 617.) “Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government.” (Id.)

Decisions subject to immunity include those that “involve[] the exercise of analysis and judgment as to what is just and proper under the circumstances,” are “sensitive policy decision[s] that require[] judicial abstention to avoid affecting a coordinate governmental entity's decisionmaking or planning process,” such as “preliminary determinations” that “reports of possible abuse” “did not warrant initiation” of further action. (Id. at 619.) However, Plaintiffs’ claims do not solely concern Midnight Mission’s failure to investigate, but also its failure to prevent sexual misconduct at the shelter and failure to maintain the shelter.

Thus, this claimed immunity does not entirely dispose of any cause of action warranting summary adjudication.

With respect to the habitability claims, Midnight Mission claims it is subject to immunity under Government Code section 818.2 for issues regarding building maintenance. “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property . . . for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Cal. Gov't Code § 818.6 [emphasis added].) However, Plaintiffs do not claim that Midnight Mission failed to adequately inspect the property, but rather that it failed to adequately maintain the property. (4AC ¶ 390.) Further, this immunity does not attach to a defendant’s own property.

As Midnight Mission has not shown that it is entitled to government immunity for the conduct at issue, the court DENIES summary adjudication as to Issue No.

9.

VI. Issue No. 8: Negligence (13th COA)

Midnight Mission contends that Plaintiffs’ Thirteenth Cause of Action for negligence claim fails because Midnight Mission owed no general duty under the circumstances alleged to Plaintiffs, and because Plaintiffs cannot establish breach, causation, or damages.

As a threshold matter, the court notes that neither party identified any specific California authority regarding whether or not an operator of a homeless shelter owes any duties to its residents, and the court could not identify any case law on this specific topic.

“[A]s a general principle, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous[.]’” (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 234–35.) However, generally, “there is no duty to act to protect others from the conduct of third parties,” but “[a] defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person.” (Id. at 235.) “Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Id.)

A proprietor’s “general duty of maintenance, which is owed to tenants and patrons, ... include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Id.) A proprietor “might have a duty to provide guards to protect patrons and invitees . . . from criminal attacks by third parties upon the premises, so long as such an attack was reasonably foreseeable ‘in light of all the circumstances.’” (Id. at 236.) “[R]estaurant proprietors have a special-relationship-based duty to undertake relatively simple measures such as providing ‘assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act.’” (Id. at 241.)

Midnight Mission argues that Plaintiffs have not established any basis for a duty owed by Midnight Mission to Plaintiffs. Midnight Mission also argues that Plaintiffs fail to set forth any standard of care that Midnight Mission purportedly breached. Midnight Mission contends that Plaintiffs do not identify the precise conduct that constituted breach, the applicable standard of care, or the causal chain linking the alleged breach to specific damages. Midnight Mission also contends that Plaintiffs do not identify any specific statutory violation by Midnight Mission that proximately caused their alleged injuries to trigger negligence per se.

In opposition, Plaintiffs cite to a plethora of evidence of the poor conditions at the shelter due to inadequate maintenance of the facility and the fact that complaints that went ignored, as well as evidence of the harm Plaintiffs suffered at the shelter. Plaintiffs assert evidence of the following: • Bedbug, water bugs, scabies, head lice, mice and pigeon infestations and injuries related to these infestations • Extremely cold temperatures in the winter, and extreme heat in the summer, and rain flooding into the shelter causing the beds to get wet, all causing injury and illness • Filthy, overflowing porta-potties and insufficient showers infected with feces, urine, blood and black mold (that were not always functional), and other unsanitary conditions creating risks of infection and illness • Food poisoning and dehydration due to lack of water • Midnight Mission provided a shelter with eight porta- potties for men and six toilets for women to service 425 residents

Thus, the court finds that Plaintiffs have shown there are triable issues of fact as to breach, causation and damages.

As to duty, Plaintiffs argue that the duty owed by Midnight Mission is similar to the duties owed by hotel owners based on a “special relationship” between the parties. “[T]he duty of care owed by both landlords and hotel owners is to maintain their property in a reasonably safe condition . . . because of the temporary nature of most hotel occupancies, hotel owners generally exercise far greater control over hotel rooms than landlords are able to exercise over leased premises. (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal. App. 4th 11, 30.) “Consequently, a hotel owner's duty to maintain reasonably safe rooms is more akin to the duty to maintain safe common areas than is a landlord's duty to maintain reasonably safe premises.” (Id.)

Plaintiffs also contend that Midnight Mission owed Plaintiffs mandatory duties under several laws. “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Cal. Gov't Code § 815.6.)

Plaintiffs also contend that Midnight Mission was under a mandatory duty under FEHA to ensure the shelter was free of sexual discrimination and harassment. The Fair Employment and Housing Act (FEHA) prohibits businesses that provide housing accommodations from engaging in sexual discrimination and harassment. (Cal. Gov’t Code § 12955(d).) Housing accommodations under FEHA include “homeless shelters.” (Cal. Code Regs. tit. 2, § 12005(o)(2).) Plaintiffs argue that Midnight Mission operated the Courtyard as a homeless shelter, and thus had a duty to provide shelter free of sexual discrimination and harassment under FEHA.

The “duty to prevent harassment and discrimination [under FEHA] is affirmative and mandatory.” (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 462.) “Prompt investigation of a discrimination claim is a necessary step by which [a defendant] meets its obligation to ensure a discrimination-free [] environment.” (Id.)

The court also finds that the following statutes cited by Plaintiffs impose a mandatory duty:

Cal. Civ. Code § 1941 states: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”

Orange County Municipal Code § 7-9-148.8(d)(7) (2013): “Emergency shelter and multi-service center for the homeless (multi-service center) site development standards and operational requirements. . . . One (1) toilet and shower shall be provided for each ten (10) beds. Separate facilities shall be provided for men and women.”

Plaintiffs have also demonstrated that there are triable issues of fact as to the foreseeable harm to Plaintiffs based on Midnight Mission’s alleged failure to maintain the shelter in sanitary, safe conditions free from sexual harassment. Plaintiffs argue that it was entirely foreseeable that when Midnight Mission failed to provide heat or protection from the elements, as required by numerous habitability statutes cited above, Plaintiffs would get sick. Plaintiffs contend that it was similarly foreseeable that when Midnight Mission provided an inadequate number of toilets for the number of residents at The Courtyard, and only cleaned them every other day, the toilets would rapidly become filthy and inoperable.

Plaintiffs assert that it was also foreseeable that the failure to train staff in sexual harassment prevention, and to screen them for crimes related to sexual violence, would result in staff who sexually harassed and abused residents.

Plaintiffs’ expert on preventing sexual harassment and abuse in congregate settings opined:

Midnight Mission’s policies and practices created opportunities for sexual harassment and abuse at The Courtyard. By failing to enforce a zero tolerance for sexual harassment, failing to screen employees for histories of sexual abuse or violence, failing to train staff on sexual harassment, and failing to implement an effective complaint process, Midnight Mission facilitated an environment where sexual harassment could occur at The Courtyard.

(ROA 1007, Ex. 5 [Still Dec. ¶ 14.i.].) Plaintiffs claim that Midnight Mission was aware of sexual harassment taking place while Deborah Kraft, Cyndi Utzman and Jordynne Lancaster lived there, and involving some of the people who harassed them. (Pltfs.’ Evid., Ex. 5 [Starling Dep. Tr., at 166:12-18; 193:6-9; 19- 25].) Plaintiffs note that Midnight Misson terminated four employees for sexual harassment or “fraternization” with female residents during a two-year period. (Pltfs.’ Evid., Ex. 14 [Midnight Mission Personnel Records, MM001498-001522].)

Here, there are several triable issues of fact as to whether the conduct at issue was foreseeable, whether there is a special relationship between Plaintiffs and Midnight Mission, and whether Midnight Mission failed to discharge any mandatory duties. Thus, the court DENIES summary adjudication of Issue No.

8.

Defendant Midnight Mission is ordered to give notice of this ruling.