Allen v. Pomona

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Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 1 of 8 Page ID #:61

1 BRADLEY S. PHILLIPS (SBN 85263)  [email protected]  [email protected] to.com 2 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor 3 Los Angeles, California 90071-1560 Telephone: (213) 683-9100 4 Facsimile: (213) 687-3702 5 MARK D. ROSENBAUM (SBN 59940) [email protected] 6 GARY BLASI (SBN 70190) [email protected] 7 CHRISTINA GIORGIO (SBN 203061) [email protected]   [email protected] 8 ALISA HARTZ (SBN 285141) [email protected] 9 AZADEH M. HOSSEINIAN (SBN 306141) [email protected] 10 PUBLIC COUNSEL LAW CENTER 610 S. Ardmore Avenue 11 Los Angeles, California 90005 Telephone: (213) 385-2977 12 Facsimile: (213) 385-9089 13 JOHN B. MAJOR (SBN 306416)  [email protected]  [email protected] to.com MUNGER, TOLLES & OLSON LLP 14 560 Mission Street, 27th Floor 15 San Francisco, California 94105-2907 Telephone: (415) 512-4000 16 Facsimile: (415) 512-4077 17 Attorneys for Plaintiffs 18

UNITED STATES DISTRICT COURT

19 20

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

21 KELLY ANN ALLEN et al., Plaintiffs, 22 vs. 23 CITY OF POMONA, 24 Defendant. 25 26 27 28

Case No. 2:16-cv-01859-R-E Stipulation Regarding Seizure of Homeless Persons’ Property and to Extend Time to Respond to Initial Complaint by Not More Than 30 Days (L.R. 8-3) Complaint Served: March 21, 2016 Current response date: April 11, 2016 New response date: May 11, 2016

Judge: Crtrm.:

Hon. Manuel L. Real 8

 

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Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 2 of 8 Page ID #:62

1

Whereas Plaintiffs filed a Complaint against Defendant City of Pomona in the

2 Central District of California on March 18, 2016, Dkt. 1; 3

Whereas the parties have conferred regarding whether a temporary restraining

4 order is necessary to protect Plaintiffs’ interests while the parties attempt to resolve 5 this case; 6

The parties inform the Court and hereby STIPULATE that until May 31,

7 2016: 8

1. 

Defendant City of Pomona will not seize s eize attended personal property

9 unless such property poses a serious and immediate risk to human health and safety, 10 is contraband or is evidence of a crime, as defined below. Attended property shall 11 mean property in the presence of the owner or property left by the owner in the 12 custody of another. 13

2. 

Defendant City of Pomona will not collect unattended personal

14  property from public areas on public property property without without adequate notice unless unless such 15  property poses a serious serious and imm immediate ediate risk to hum human an health and safety or is  Lavan v. City of 16 contraband or refuse, in which case prior notice is not required. See Lavan

17  Los Angeles, 693 F.3d 1022, 1033 (9th Cir. 2012). 18

a.  For purposes of this stipulation, “adequate notice” shall mean

19 20

written notice of the intent by the City of Pomona to remove such  property provided provided at least 48-hour 48-hourss prior to collec collection tion of such

21

 property from from a public area o on n public proper property ty (“prior notice”),

22

except in Lincoln Park and Washington Park where the prior notice

23

shall be at least 29-hours 29-hours prior to co collection. llection. The prior notice shall shall::

24

i.  Be securely attached to the property that will be collected;

25

ii.  State that the property tagged will be collected and stored

26 27 28

unless it is attended after the expiration of the notice period; iii.  Identify the location where such personal property may be retrieved;

 

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Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 3 of 8 Page ID #:63

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iv.  State that the property may be retrieved on Monday through

2

Thursday between 9 am and 4 pm without an appointme appointment, nt, or

3

Friday through Sunday between 9 am and 4 pm with an

4

appointment;

5 6 7 8 9 10 11

v.  State a phone number to call for information on how to retrieve the property; vi.  State that no identification is required to retrieve the property except for prescription medications; vii.  State that an owner may identify the property by location and contents; and viii.  State that no consequences will attach to retrieving the

12

 property, including including tickets, fines, fines, or citations, and that the

13

 property may may be picked up free of charge.

14 15

 b.  Prior notice shall not be required for property which poses a serious

16

and immediate risk to human health and safety, is contraband, is

17

hazardous, or is refuse, and may be discarded to protect the public

18

health. Property which which is hazardous, pose posess a risk to hum human an health or

19 20

safety, or is refuse refuse shall be discarded. discarded. Property w which hich is contraband or evidence of a crime shall be dealt with according to Pomona

21

Police Department procedures and policies regarding disposition of

22

evidence.

23

i.  Property shall not be collected as “evidence of a crime” to

24

 prove a violation of Pomona City City Code section 4 46-601 6-601 et seq.,

25

regarding “Camping, Sleeping or Storage of Property.”

26

ii.  Property collected as “refuse” shall be limited to items which

27

are or contain spoiled food, strewn, unfolded clothing or

28

 bedding, and items items left outside of any container or bag wh which ich

 

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Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 4 of 8 Page ID #:64

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a reasonable person would identify has having no commercial

2

or intrinsic intrinsic va value. lue. “Refuse” shall not include sorted

3

recyclable materials with a California Redemption Value

4

(CRV) stored in a container container or bag. Unless positing a tthreat hreat

5

to human health or safety, items in piles, stored in suitcases,

6

 backpacks, luggage, or other containers containers shall not be ide identified ntified

7

 by the City as “refuse.” 

8 9

iii.  Property which is merely dirty and otherwise does not pose a risk to human health shall not be considered as hazardous or

10

 posing a risk to safety. safety. Items soiled with human human excrement or

11

 bodily fluids, infested infested with insects, vermin vermin or vectors of

12

disease shall be prima facie evidence of a risk to human

13

health and safety.

14

c.  Due to the increased fire risk in the hills surrounding Ganesha Park

15

and Phillips Ranch, and the recent history of fires in these and other

16

hillside locations, Defendant City of Pomona shall remain able to

17

instruct individuals in these areas that they must relocate their

18

 personal property property out of these areas, areas, but Defendant shall give those

19 20

individuals an opportunity opportunity to remove remove their property. property. Defendant shall also remain able to collect unattended property found in fire

21

danger areas without without prior notice. Defendant shall p post ost clearly

22

visible signs in areas reasonably calculated to provide notice

23

indicating that unattended property in those areas may be removed

24

without prior notice and stored for a period not less than 90 days.

25

Post-collection notice of such personal property shall be provided,

26

as described below. below. Fire danger aareas reas shall cconsist onsist of:

27 28

i.  Hillside areas of Ganesha Park between Paige Drive, Val Vista Street, and Hillcrest Drive,

 

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Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 5 of 8 Page ID #:65

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ii.  Open Space and Fuel Control areas of Phillips Ranch;

2

iii.  Open space areas south of Phillips Drive (the Westmont

3 4

Hills); and iv.  Any area determined to be a high fire risk area by the Los

5

Angeles County Department Fire Protection Officer assigned

6

to the City of Pomona. Pomona. For any new fire danger area

7

identified, the signage and outreach protocols listed above

8

shall apply.

9

d.  Property collected together shall be put into containers marked with

10

the date, time and location of its collection, and shall be stored by

11

the City for no less than 90 days. Persons may retrie retrieve ve such

12

 property without without appointment Monday through Thursday ffrom rom 9 am

13

to 4 pm and by appointment Friday through Sunday between 9 am

14

and 4 pm. Persons retrieving ccollected ollected property must be able to

15

sufficiently identify the location and approximate date of where the

16

 property being claimed claimed was collec collected ted and reasonably describe the

17

items collected, or otherwise be able to establish owner ownership. ship. Except

18

for medications, persons shall not be required to show any form of

19 20

identification in order to claim collected property. e.  Where personal property is found obstructing the public right of

21

way preventing a path of travel greater than 36 inches wide, such

22

 personal property property may be moved by the City without pr prior ior notice to

23

allow the 36-inch wide wide path to be ree reestablished. stablished. The City shall

24

make all reasonable efforts to reposition the property to clear the

25

right of way so as to prevent collec collection tion of the prop property. erty. If there is

26

insufficient room to move such property to within 20 feet of its

27

initial location those items may be collected without advance notice

28

 

30200611.1  

Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 6 of 8 Page ID #:66

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 by the City. Post-collection notic noticee of unattended removal removal of

2

 personal property property shall be provided provided as described below.

3

f.  Where personal property collected is determined to include

4

 prescription medication medication in order to protect the safety and welfar welfaree of

5

 persons who may may find such m medication, edication, such shall be ccollected ollected by

6

the City and turned over to the Pomona Police Department for

7

 processing to be handled handled by the Hom Homeless eless Community Liaison, bu butt

8

within 14 days Defendant shall identify a list of alternate candidates

9

to the Police Department for purposes of storing and processing the

10

return of medications subject to this subparagraph.

11

g.  Post-collection notice shall be given at the time the property is

12

collected and shall be in writing and provided in the following

13

manner:

14

1.  Be securely attached within 10 feet of the location of the where

15

 property was collected; collected;

16

2.  Indicate the time of removal;

17

3.  Indicate the collection case number;

18

4.  Indicate a phone number to call for inf information ormation on how tto o

19 20

retrieve the property; 5.  Indicate the address where the property can be obtained;

21

6.  State that property may be retrieved Monday through Thursday

22

 between 9 am and 4 pm without an appointment appointment and Frid Friday ay

23

through Sunday between 9 am and 4 pm with an appointment;

24 25 26 27 28

7.  State that no identification is required to retrieve property except for prescription medications; 8.  State that an owner may identify the property by location and contents; and

 

30200611.1  

Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 7 of 8 Page ID #:67

9.  State that no consequences will attach to retrieving the

1 2

 property, including including tickets, fin fines, es, or citations, and that the

3

 property may may be picked up free o off charge.

4

h.  Property collected from public areas on public property shall be

5

stored at a single City facility located within 1 mile of the Civic

6

Center.

7

3. 

Defendant City of Pomona will not destroy or otherwise permanently

8 dispose of collected personal property unless such property remains unclaimed for a days. 9  period of 90 days. 10

4. 

Plaintiffs will not move for a temporary restraining order so long as

11 Defendant City of Pomona abides by the terms of this stipulation. 12

5. 

Defendant shall conduct outreach that is reasonably calculated to

13 inform individuals likely to be impacted by the stipulation of its terms, with nd (f). 14  particular focus on provisions 2(c) aand 15

6. 

If Defendant or any of its employees or agents violates the terms of this

16 stipulation, in addition to any sanctions and fees rendered by the Court, Defendant penalty of $250 per iindividual ndividual viola violation. tion. Said penalty shall not 17 agrees to pay a penalty 18 constitute a waiver of any other claims arising from the conduct that violates this shall ll be paid by the the City to the Vol Volunteers unteers of America to 19 stipulation. Such penalty sha providing ding local homeless ser services. vices. 20  be used for provi 21

7. 

The parties further stipulate and agree to extend Defendant’s time to

22 answer the Complaint by 30 days. 23 24

DATED: April 4, 2016

MUNGER, TOLLES & OLSON LLP BRADLEY S. PHILLIPS JOHN B. MAJOR

25 26 27 28

By:

/s/ Bradley S. Phillips Bradley S. Phillips Attorneys for Plaintiffs

 

30200611.1  

Case 2:16-cv-01859-R-E Document 12 Filed 04/06/16 Page 8 of 8 Page ID #:68

1 PUBLIC COUNSEL MARK ROSENBAUM GARY BLASI CHRISTINA GIORGIO

2 3 4

ALISA HARTZ AZADEH M. HOSSEINIAN

5 6 7 By:

8 9

/s/ Christina Giorgio Christina Giorgio Attorneys for Plaintiffs

10 11

CITY OF POMONA

12

ARNOLD ALVAREZ-GLASMAN ALVAREZ-GLASMAN,, City Attorney

13 14 15

By:

16 17 18 4846-2548-8432, 4846-2548-843 2, v. 1

19 20 21 22 23 24 25 26 27 28

/s/ Andrew L. Jared Andrew L. Jared Attorney for Defendant

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