People v. Padilla-Martel ( 2022 )

Filed 4/29/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
A162872
v.
CHRISTIAN NOEL PADILLA- (San Francisco County
MARTEL, Super. Ct. No. CGC-20-586763)
Defendant and Respondent.
THE PEOPLE,
Plaintiff and Appellant,
A162873
v.
VICTOR ZELAYA, (San Francisco County
Super. Ct. No. CGC-20-586761)
Defendant and Respondent.
THE PEOPLE,
Plaintiff and Appellant,
A162874
v.
JAROLD SANCHEZ, (San Francisco County
Super. Ct. No. CGC-20-586753)
Defendant and Respondent.
THE PEOPLE,
Plaintiff and Appellant,
A162875
v.
GUADALOUPE AGUILAR– (San Francisco County
BENEGAS, Super. Ct. No. CGC-20-586732)
Defendant and Respondent.
1
In these civil actions, the People, by the San Francisco City Attorney
(City) allege defendants Christian Noel Padilla-Martel, Victor Zelaya, Jarold
Sanchez, and Guadaloupe Aguilar-Benegas are street-level drug dealers
whose drug-dealing activities in the Tenderloin neighborhood create a public
nuisance (Civ. Code, §§ 3479, 3480) and violate the unfair competition law
(Bus. & Prof. Code, § 17200 et seq.) (UCL).
Before a trial on the merits of its claims, the City moved for
preliminary injunctions against defendants that would prohibit them from
entering a 50-block exclusion zone in the heart of San Francisco. There was
no dispute about the conditions in the Tenderloin. Defendants acknowledged
the area is “facing a drug-related health crisis,” and the trial court found the
City established the neighborhood is “rife with illegal drug-dealing” and
related activities. Nor was there any dispute that the City has authority to
seek injunctive relief to address public nuisances and UCL violations;
defendants and the trial court agreed, for example, that the City could enjoin
individuals from engaging in illegal drug selling in the Tenderloin.
But the trial court denied the City’s motions for preliminary injunctions
on two independent grounds, both based on the scope of the proposed
injunctions. First, the trial court determined that a stay-away order—as
opposed to an injunction prohibiting certain conduct—is not an authorized
remedy under either the public nuisance law or the UCL. Second, even
assuming stay-away orders are available statutory remedies, the trial court
concluded the specific injunctive relief the City requested would be
constitutionally impermissible under the facts of these cases. The court
determined that excluding defendants from such a large area in the center of
San Francisco implicates the constitutional right to intrastate travel—that is,
the right to travel locally through public spaces and roads—and the City
2
failed to meet its evidentiary burden of convincing the court that its proposed
remedy was sufficiently tailored to minimally infringe upon the protected
interests at stake.
The City appeals, challenging both grounds for denying its motions.
Unlike the trial court, we are not prepared to hold that a stay-away order
could never be a potential remedy for a public nuisance or unfair business
practice in an appropriate case. However, the City has failed to show error in
the trial court’s finding that the proposed stay-away orders are insufficiently
tailored to pass constitutional muster based on the evidentiary record before
it. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The City’s Complaints
In September 2020, the City filed similar civil complaints against each
defendant, and against 24 other individuals whose cases are not before us,
asserting public nuisance and UCL claims. In each complaint, the City
sought a permanent injunction ordering the defendant “to stay away from the
proposed Tenderloin Drug Abatement Area and any area of the City and
County of San Francisco where DEFENDANT has engaged in the illegal sale
of controlled substances.” The “proposed Tenderloin Drug Abatement Area”
(abatement area) comprises about 50 square blocks and covers over 221
acres. 1 The City sought liability of up to $6,000 for each violation of the
injunction and civil penalties of up to $2,500 for each violation of the UCL,
plus fees and costs.
1 The borders of the abatement area are Ninth Street from Mission
Street to Market Street, north on Larkin Street to Turk Street, west on Turk
to Van Ness Avenue, north to Geary Street, east to Powell Street, south to
Market, southwest to Fifth Street, south on Fifth to Mission, and Mission to
Ninth.
3
Motions for Preliminary Injunctions
In March 2021, the City filed a motion for preliminary injunction
against each of the four defendants. 2 The City asked the court to issue stay-
away orders prohibiting defendants from entering the abatement area with
limited exceptions for (1) riding public transit (but not getting on or off) either
by bus along the western boundary of the abatement area or by train running
underground through the Tenderloin, (2) using one side of the sidewalk on
one street for half a block if necessary to go to scheduled federal court
appearances, and (3) making “a scheduled visit to a particular location” in the
abatement area “to conduct specified lawful business on a designated date
and time,” but “only with the PEOPLE’s advance written and filed
stipulation” and with the requirement that the defendant carry a copy of the
stipulation. 3 A violation of the proposed injunction would subject a defendant
to criminal proceedings under Penal Code section 166.
2 The City states in its opening brief that these four defendants’ cases
are the first to reach the preliminary injunction stage, and this is the reason
the other 24 defendants are not parties to these consolidated appeals.
Defendants respond it is more accurate to say these are the only cases being
litigated; they assert the City has failed to serve most of the other named
defendants and one defendant has died.
3 The exceptions provided in the proposed injunctions were:
“a. DEFENDANT is allowed to travel underground through the
Tenderloin Drug Abatement Area on BART and Muni Metro. DEFENDANT,
however, may not board or leave the trains at Civic Center Station or Powell
Street Station.
“b. DEFENDANT is allowed to travel on public transit buses along Van
Ness Avenue. DEFENDANT may not board or leave the bus within the
Tenderloin Drug Abatement Area.
“c. If DEFENDANT has a scheduled federal court appearance at 450
Golden Gate Avenue and the Golden Gate entrance is not available to
4
The City supported its motions with declarations from San Francisco
police officers and members of the community that described drug dealing,
drug use, and associated crime and disruptive activities in the Tenderloin
neighborhood.
The City submitted a declaration from San Francisco Police Captain
Carl Fabbri, who as of the date of his declaration in March 2021, was the
commanding officer of the Tenderloin police district, which is one of 10 police
districts in San Francisco. 4 According to Fabbri, “the overall crime rates in
the Tenderloin are historically about three times higher than in the City
overall on a per capita basis,” it “is the epicenter of illegal drug sales in the
City,” and “the situation [in the neighborhood] has worsened in recent years
and months.” In 2020, there were 600 arrests for drug dealing in the
Tenderloin, and officers seized over $288,000 in cash and more than 18
kilograms of heroin, cocaine, methamphetamine, and fentanyl. In addition,
drug overdoses have increased in recent years. There were 699 drug overdose
deaths in San Francisco in 2020, 5 up from 441 overdose deaths in 2019 and
259 in 2018.
DEFENDANT, DEFENDANT is allowed to use the sidewalk on the south
side of Turk Street from Polk Street to the Turk Street entrance.
“d. DEFENDANT may, only with the PEOPLE’s advance written and
filed stipulation, make a scheduled visit to a particular location in the
Tenderloin Drug Abatement Area to conduct specified lawful business on a
designated date and time. DEFENDANT must carry a copy of said
stipulation.”
The City’s proposed abatement area encompasses most of the
4
Tenderloin police district plus a few streets in the Northern police district.
5 In a declaration from February 2021, the Chief Forensic Toxicologist
of the City’s Office of the Chief Medical Examiner reported that 154 of the
699 overdose deaths occurred in the Tenderloin.
5
Fabbri reported that approximately 125 full-time police officers were
assigned to Tenderloin Station but the Tenderloin neighborhood remains the
“primary place to buy or sell drugs in San Francisco and throughout the Bay
Area.” According to Fabbri, most drug dealers do not live in the Tenderloin.
He stated that drug users are also a problem, as they commit theft crimes in
the Tenderloin to buy drugs and, when using drugs, they often exhibit erratic
behavior.
Fabbri opined that a civil “injunction preventing drug dealers from
coming to the Tenderloin would be a useful tool to combat street drug dealing
and the negative effects on the Tenderloin, beyond the tools of existing
criminal laws” because “enforcing a stay-away order requires far less police
resources than doing a drug bust.” He believed the size and borders of the
proposed abatement area were “appropriate and necessary” because “sellers
are mobile, and are not confined to a particular street corner.”
Officer declarations described each defendant’s arrests in San
Francisco for drug-related charges and for violating stay-away orders. The
declarations, however, did not show that any of the defendants has been
convicted of selling drugs, possessing drugs for sale, or violating any pre-trial
stay-away orders. Padilla-Martel was arrested three times within three
months in 2020. 6 Zelaya was arrested three times from July 2019 to May
6 On May 2, 2020, Padilla-Martell was found on the 300 block of Golden
Gate Avenue with suspected fentanyl, cocaine salt, heroin, and $446 in cash,
and he admitted to police that he was conducting drug sales. On June 29, he
was observed on Hyde Street between Golden Gate Avenue and McAllister
Street engaging in hand-to-hand drug sales. He was arrested for violating a
court order to stay 150 yards away from 300 Golden Gate Avenue, and he was
found with suspected fentanyl and methamphetamine, as well as $201 in
crumpled bills. On July 20, he was seen on Hyde Street near Golden Gate
Avenue engaging in hand-to-hand drug sales. On that occasion, Padilla-
6
2020. 7 Sanchez was arrested five times between February 2020 and
February 2021. 8 Aguilar-Benegas was arrested on five different occasions
between May 2020 and February 2021. 9
All four defendants were Oakland residents at the time of their arrests.
None of defendants’ arrests involved violence, and to the extent defendants
were arrested in the Tenderloin, each defendant’s arrests occurred within a
small portion of the proposed abatement area. 10
Defendants’ Oppositions
Defendants opposed the motions for preliminary injunctions, arguing
the City did not show a likelihood of success on the merits at trial. (Whether
the City ultimately will prevail on its public nuisance and UCL claims at trial
is not an issue on appeal, but defendants dispute the merits of the City’s
Martel had over $1,000 and suspected fentanyl, cocaine base, and heroin, and
he was again in violation of a stay-away order.
7On May 20, 2020, Zelaya was observed at Seventh and Market Streets
engaged in hand-to-hand drug sales and was found with suspected fentanyl,
cocaine base, heroin, and methamphetamine. He was in violation of several
stay-away orders from criminal cases. One court order required Zelaya to
stay away from the area bounded by Mission Street, O’Farrell Street, Van
Ness Avenue, and Powell Street. Another ordered him to stay 150 yards from
the area bounded by Franklin, Geary, and Market Streets.
Three times, Sanchez was arrested around the 300 block of Golden
8
Gate Avenue. The drugs found in his possession included suspected
methamphetamine, cocaine salt, cocaine base, heroin, and fentanyl.
9On each occasion, Aguilar-Benegas was found with large amounts of
cash and multiple illegal drugs, including suspected cocaine base, heroin,
methamphetamine, cocaine salt, and fentanyl. She was arrested twice at 240
Hyde Street and once at 308 Turk Street. Several times, Aguilar-Benegas
was also in violation of stay-away orders issued by the criminal court.
10Zelaya was arrested three times, but only one arrest occurred within
the abatement area.
7
claims.) Defendants also argued the City could not establish the balance of
interim harms tipped in its favor and, in any event, the proposed injunctive
relief was improper and overbroad. They asserted the City was using
defendants as “scapegoat[s] in its ill-conceived effort to make a political
point” and the proposed injunctions would harm defendants “and the
community while doing nothing to increase public safety or reduce substance
abuse.”
Defendants submitted declarations from attorneys, social and health
services providers in the Tenderloin, and professors with expertise in policing
and drug laws, all of whom supported the view that the proposed injunctions
would not address the serious problems facing the Tenderloin, which include
poverty, housing insecurity, mental and physical health issues, drug use
disorder, and food insecurity.
For example, the director of harm reduction services at the Glide
Foundation, located in the Tenderloin neighborhood, stated that in her
experience, “arresting individuals selling drugs on the streets of the
Tenderloin has no impact on the availability of drugs for sale” as “other
people simply fill in any gap.” She opined, “Spending money on these
lawsuits and seeking to ban people from the Tenderloin is a waste of
resources and will do nothing to reduce the availability and use of drugs in
the neighborhood.” Two sociology professors who have published extensively
on policing and punishment, Katherine Beckett and Steve Herbert of the
University of Washington, stated that the use of “spatial exclusion, or
banishment” (including injunctions, curfews, and stay-away orders)
significantly erodes the citizenship status of those subject to exclusion and is
“futile and counterproductive.”
8
The clinical director of Legal Services for Children described “the
various resources, community-based organizations, and governmental
agencies” that are located within the proposed abatement area, which provide
“vital services” including “substance abuse treatment, emergency shelter and
housing, access to public benefits, education restoration, employment
readiness and extracurricular programing for youth.” He believed that crime
and community safety would “remain unchanged by [the proposed]
injunctions.”
Defendants also submitted their own declarations. Zelaya stated he
was 27 years old. He lives with his wife and daughter and runs a food cart
business with his wife and sister-in-law. He has two other daughters from a
previous relationship who live in the Tenderloin with their grandmother.
Zelaya stated he would like to visit his daughters in the Tenderloin and take
them to school, to soccer matches, and to get food in the neighborhood, and he
would like to be able to take them to the doctor, respond whenever they call,
and be able to stay overnight at their apartment. In addition, he is aware of
and would like to be able to access various services available in the
Tenderloin, such as nonprofits and community organizations that assist with
employment, treatment, health, and harm reduction services. Zelaya stated
that barring him from the proposed abatement area “would seriously impact
[his] everyday life” and he would have to find a way to be with his family
without being able to meet his daughters in the Tenderloin when they call
him.
Padilla-Martel stated he works painting houses and he would like to
find work as a mechanic, which he has trained to do. He has a five-year-old
son who lives with his grandparents, and he sends his family money every
month. He has taken public transportation in San Francisco using routes
9
that go through the Tenderloin in the past, and he plans to do so in the
future.
Sanchez stated he was 23 years old. He lives with his wife, their young
son, and his brother-in-law, and his wife was pregnant. He stated he is
looking for work and he takes public transportation regularly, including
public transportation that passes through the Tenderloin. He understands
that there are nonprofits and community organizations in the Tenderloin
that assist with employment, housing, and health services, and he would like
to access those services.
Aguilar-Benegas stated she was 28 years old, she had two young
children, and she was pregnant and expecting her third child in a few weeks.
Her husband had died unexpectedly in 2020. She was contacted about
scheduling an ultrasound appointment at a clinic she believed was in the
Tenderloin. She understands there are nonprofits and community
organizations in the Tenderloin and she would like to access those services,
including help finding work and affordable housing.
Trial Court Ruling
The trial court heard argument on the City’s motions for preliminary
injunctions and subsequently issued a comprehensive 23-page order denying
the motions.
The trial court found the City’s “extensive and largely undisputed”
evidence showed the Tenderloin is “rife with illegal drug-dealing and other
associated activities.” The court found that “blatant and open-air drug sales
have been increasingly common in the Tenderloin, with drug dealing
occurring all day and night; that sales of narcotics take place” near children;
“that neighborhood residents and workers have to move to the other side of
the street or into the street to avoid drug dealers; that injection and other
10
open drug use is common on public streets, [and] sidewalks”; that users leave
behind “crack pipes and dirty syringes, as well as human waste; and that
rampant drug dealing in the Tenderloin is directly and indirectly related to
numerous other crimes committed by drug dealers and their customers,
including theft, weapons trafficking, and violent crimes.” 11 The court also
found substantial evidence that each defendant engaged in illegal sales of, or
possessed for sale, controlled substances in the Tenderloin on multiple
occasions and violated stay-away orders issued by the criminal courts. 12
Based on these findings, the court determined the City showed a
likelihood of prevailing on the merits of its claims. As to the public nuisance
claim, the court reasoned, “illegal drug-dealing in the Tenderloin . . .
constitutes a public nuisance that affects the entire Tenderloin neighborhood,
or at the very least a considerable number of persons who reside or work in
that neighborhood,” and defendants’ illegal activity “contributed to the
overall public nuisance.” As to the UCL claim, it found “[t]he UCL extends to
the illegal sale of drugs,” including the individual defendants’ “ongoing
unlawful conduct.”
Nonetheless, the trial court denied the City’s motions after determining
the injunctive relief the City asked for was both statutorily and
constitutionally impermissible. At the outset, the court concluded that
neither the public nuisance law nor the UCL authorizes the “creation of an
11We grant the City’s request that we take judicial notice of the Mayor
of San Francisco’s declaration on December 17, 2021, of a 90-day local
emergency related to drug overdoses in the Tenderloin.
12We note that, from our review of the record, it appears Zelaya was
arrested only once within the abatement area and was arrested just outside
the area on two occasions. This does not change our analysis or disposition,
however.
11
exclusion zone” as a potential remedy. Distinguishing a person’s conduct
(which may create a nuisance or constitute an unlawful business practice)
from a person’s presence in a geographic location, the court inferred that the
public nuisance law does not authorize the City’s proposed injunctions
because “abatement is equivalent to an injunction against injurious activity
or conduct—not removal of a person who has engaged in such conduct.”
Similarly, the court reasoned, “the purpose of injunctive relief under the UCL
is to prohibit unfair competitive practices or conduct—not to exclude the
persons engaged in it.”
The court further found that, even assuming stay-away orders are
authorized by statute, the specific injunctive relief sought by the City in these
cases would violate defendants’ constitutional rights because it was not
sufficiently tailored to minimally infringe upon defendants’ constitutional
rights to intrastate travel. The court reasoned, “By no stretch of the
imagination is [the City’s proposed injunctive relief] narrowly tailored.
Rather than prohibit specified harmful conduct, it prohibits mere presence in
the exclusion zone, at any time of the day or night and for any reason. It
would preclude defendants from entering the area for any purpose, including
accessing vital social and health services.”
DISCUSSION
A. Standard of Review
Generally, “the question whether a preliminary injunction should be
granted involves two interrelated factors: (1) the likelihood that the plaintiff
will prevail on the merits, and (2) the relative balance of harms that is likely
to result from the granting or denial of interim injunctive relief.” (White v.
Davis (2003) 30 Cal.4th 528, 554.)
12
On appeal, we accept the trial court’s factual findings if they are
supported by substantial evidence. We review its decision whether to issue a
preliminary injunction for abuse of discretion. We review questions of law de
novo. (People ex rel. Feuer v. FXS Management, Inc. (2016) 2 Cal.App.5th
1154, 1159.)
B. Statutory Authority and Scope of Injunctive Relief
A “nuisance” is defined by statute to include “[a]nything which is
injurious to health, including, but not limited to, the illegal sale of controlled
substances.” (Civ. Code, § 3479.) A “public nuisance is one which affects at
the same time an entire community or neighborhood, or any considerable
number of persons, although the extent of the annoyance or damage inflicted
upon individuals may be unequal.” (Id., § 3480.) Civil Code section 3491
provides that the “remedies against a public nuisance” include “[a]batement.”
“ ‘ “An abatement of a nuisance is accomplished in a court of equity by means
of an injunction proper and suitable to the facts of each case.” ’ ” (People ex
rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 57 (Projection
Room Theater), italics omitted.)
“[U]nfair competition” includes “any unlawful . . . business act or
practice.” (Bus. & Prof. Code, § 17200.) The UCL covers “ ‘anything that can
properly be called a business practice and that at the same time is forbidden
by law’ ” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 113) and
provides, “[a]ny person who engages . . . in unfair competition may be
enjoined in any court of competent jurisdiction” (Bus. & Prof. Code, § 17203).
Thus, an injunction to abate unlawful activity is an appropriate remedy
under both the public nuisance law and the UCL.
The scope of injunctive relief available to address a public nuisance or
unlawful business practice is limited, however. “It is a familiar doctrine of
13
equity that the scope of [an] injunction will be limited to the wrongful act
sought to be prevented.” (Magill Bros. v. Building Service etc. Union (1942)
20 Cal.2d 506, 512.) Our high court has cautioned, “Injunctive process ought
never to go beyond the necessities of the case.” (Anderson v. Souza (1952) 38
Cal.2d 825, 840–841 (Anderson).) “In fashioning a remedy, a court should
‘strive for the least disruptive remedy adequate to its legitimate task’ and
tailor it to the harm at issue.” (People v. Uber Technologies, Inc. (2020) 56
Cal.App.5th 266, 313 (Uber).)
When a nuisance or unlawful business practice occurs in the operation
of a legitimate business, any injunction to address the problem must be
narrowly drawn to eliminate the unlawful activity and should not restrict on
lawful business activity unless absolutely necessary. 13
Similarly, when an individual creates a nuisance or engages in an
unlawful business practice, an injunction against the individual must be
limited to addressing the unlawful activity. Perhaps the most closely
analogous cases to the City’s current action are gang injunctions. In People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna), the City of San Jose
brought a public nuisance claim against individual alleged criminal street
13In Anderson, neighbors brought a nuisance claim based on the
operation of an airport. Our Supreme Court explained, “where a legitimate
business is being conducted and in the conduct thereof a nuisance has been
created and is being maintained, the [injunctive] relief granted should be
directed and confined to the elimination of the nuisance, unless under the
peculiar circumstances of the case the business, lawful in itself, cannot be
conducted without creating a nuisance and violating the rights of contiguous
property owners.” (Anderson, supra, 38 Cal.2d at p. 841, italics added.) Uber
involved a UCL claim, and the Court of Appeal stated, “an injunction against
legitimate business activities ‘should go no further than is absolutely
necessary to protect the lawful rights of the parties seeking such injunction.’ ”
(Uber, supra, 56 Cal.App.5th at p. 313, italics added.)
14
gang members. The lower court entered a preliminary injunction prohibiting
the defendants from engaging in certain activities in a four-block
neighborhood, and the defendants challenged some of the restrictions. (Id. at
p. 1100.) The California Supreme Court explained that, in “considering the
limitations on the scope” of the preliminary junction, its first task was to
decide, “whether the activity enjoined . . . reasonably falls within the
statutory definition of a public nuisance . . . .” (Id. at p. 1120, italics added.)
In other words, the scope of an injunction against an individual generally
should be limited to enjoining his or her unlawful activity.
It is possible to enjoin an individual’s lawful activity that is not in itself
a nuisance or unlawful business practice, but this is extraordinary relief. In
another gang injunction case, the defendant was enjoined from engaging in
“particular gang-related activity in the target area,” including “a host of
noncriminal, usually innocuous and wholly ordinary activities, e.g., drinking
alcoholic beverages, possessing a glass bottle or a baseball bat or a marker
pen or a screwdriver or wire cutters.” (People v. Englebrecht (2001) 88
Cal.App.4th 1236, 1256.) The Court of Appeal observed, “While it may be
lawful to restrict such activity, it is also extraordinary. The government, in
any guise, should not undertake such restrictions without good reason and
without firmly establishing the facts making such restrictions necessary.”
(Ibid.)
Any injunctive relief in these cases, therefore, must be tailored to
addressing the public nuisance or unlawful business practice the trial court
finds defendants have engaged in and should not restrict defendants’ lawful
activities unless the City firmly establishes facts showing that the proposed
restrictions are necessary to prevent the unlawful conduct at issue.
15
C. Availability of Stay-Away Orders Under the Statutes
Here, the trial court recognized injunctive relief is available under the
public nuisance law and the UCL and, for example, “[t]here is no question
that a court may enjoin the illegal sale of drugs.” But the court correctly
observed the particular injunctive relief the City requested is unprecedented
under California law. The parties have not cited, and we have not found, any
case in California upholding the use of a neighborhood-wide exclusion zone as
injunctive relief to abate a public nuisance or address an unfair business
practice.
As we have described, the trial court went on to decide that the broad
stay-away orders the City seeks are not simply unprecedented, they are not
permitted under the statutes. The City contends the court erred in
concluding that stay-away orders are not potential equitable remedies under
either the public nuisance or UCL statutes. The City relies on the principle
that courts generally have broad power to abate nuisances and fashion relief
under the UCL, although the examples the City relies on are not particularly
apt.
Discussing nuisances, the City cites cases in which structures were
ordered to be demolished and removed because the structures themselves
constituted nuisances (e.g., Golden Gate Water Ski Club v. County of Contra
Costa (2008) 165 Cal.App.4th 249, 253–254, 266; People v. Wheeler (1973) 30
Cal.App.3d 282, 285, 292, 299) and Civil Code section 3495, which provides,
“Any person may abate a public nuisance which is specially injurious to him
by removing, or, if necessary, destroying the thing which constitutes the
same, without committing a breach of the peace, or doing unnecessary
injury.” The City also cites statutes that authorize the closure of buildings or
16
places that constitute particular types of nuisances. 14 (See Pen. Code,
§ 11230, subd. (a); Health and Saf. Code, § 11573.5.) Although the City
concedes that these statutes do not apply in the cases now before us, it
asserts they are “illustrative of the expansive powers granted courts to
address and abate nuisances.” The City suggests, “If courts are authorized to
raze entire buildings to abate a nuisance, surely, they can prohibit
individuals from coming to a location to engage in illegal activity.” We find
this argument less than persuasive. It goes without saying that human
beings do not constitute nuisances in themselves and that things do not have
the same rights as individuals. That a “thing” (Civ. Code, § 3495)
constituting a nuisance can be removed and destroyed or a nuisance building
can be shut down sheds no light on the limits of a court’s power to curtail a
person’s freedom of movement generally when that person has been found to
have created a public nuisance by their unlawful conduct.
Discussing the UCL, the City quotes Hewlett v. Squaw Valley Ski Corp.
(1997) 54 Cal.App.4th 499, 540 (Hewlett), which described the remedial power
of Business and Professions Code section 17203 as “ ‘extraordinarily broad’ ”
and observed, “Injunctive relief ‘may be as wide and diversified as the means
employed in perpetration of the wrongdoing.’ ” But nothing about the facts of
that case suggests that a neighborhood-wide stay-away order against an
14The City cites laws that define as nuisances any building or place
used for illegal gambling, lewdness, or prostitution (Pen. Code, § 11225) and
any building or place used for unlawfully selling storing or manufacturing
any controlled substance is a nuisance (Health and Saf. Code, § 11570).
Under these laws, the building or place may be closed to abate the nuisance.
(Pen. Code, § 11230, subd. (a); Health and Saf. Code, § 11573.5.) These
statutes are not at issue in this case and do not form the basis for the relief
the City seeks.
17
individual would be an available remedy for unfair business practices. 15 The
City describes People ex rel. City of Santa Monica v. Gabriel (2010) 186
Cal.App.4th 882 (Gabriel) as demonstrating that a UCL injunction may
exclude “the violator from the scene of their earlier violations and victims.”
There, the City of Santa Monica filed a UCL action against a landlord
alleging the landlord sexually harassed a tenant, entered tenants’ units
without permission, and rented uninhabitable space as living quarters.” (Id.
at p. 884.) The trial court found the allegations true and ordered the
defendant “ ‘to have no contact with any past, present or future tenants,’ ”
and “ ‘not to enter any rental unit, either occupied or vacant, unless
accompanied by a member of the management company and with good
cause.’ ” (Id. at p. 886.) The defendant did not challenge this order on
appeal, 16 and it is well established that “a case is authority only for a
proposition actually considered and decided therein.” (In re Chavez (2003) 30
Cal.4th 643, 656.) However even considering the injunctive relief in Gabriel
as an example of a UCL remedy, it shows at most that a no-contact order to
15 In Hewlett, the Placer County District Attorney alleged a ski resort
engaged in unlawful business practices by cutting down trees in violation of
the Forest Practice Act. (Hewlett, supra, 54 Cal.App.4th at p. 509.) The trial
court found the resort violated the Forest Practice Act and enjoined the resort
from any tree cutting and prohibited further development. (Id. at pp. 509–
510, 517.) On appeal, the resort challenged the injunctive relief ordered, and
it was in this context that the appellate court made its observations about the
breadth of trial court remedial powers under the UCL. But the injunction at
issue enjoined the resort’s unlawful conduct of cutting trees. It did not
prohibit alleged wrongdoers from entering their own property.
16Instead, the landlord unsuccessfully argued sexual harassment of a
tenant is not a business practice and successfully challenged an award of
attorney’s fees as unauthorized under the UCL. (Gabriel, supra, 186
Cal.App.4th at pp. 887, 889.)
18
protect individual victims may be an available remedy in the appropriate
case, not that an order to stay away from an area is authorized. The Gabriel
defendant was not prohibited altogether from going to the area where the
rental property was located. He was only prohibited from entering a rental
unit without a manager present and without good cause after the court found
that he committed UCL violations by entering tenants’ units without
permission in the past.
Still, the fact that a remedy has not been ordered before does not mean
it is not allowed. While it is true that the City has not definitively
established that stay-away orders are statutorily authorized, defendants
have not convinced us stay-away orders are necessarily prohibited either.
Thus, we cannot affirm the trial court’s order on the ground the public
nuisance and UCL statutes categorically prohibit stay-away orders.
D. Constitutional Considerations
Next, we consider the trial court’s alternative basis for denying the
City’s motions—that the proposed injunctions would violate defendants’
constitutional rights because they are not narrowly tailored to the
circumstances of these cases.
Any injunctive relief must, of course, comply with our state and federal
constitutions. (See Projection Room Theater, supra, 17 Cal.3d at p. 55 [“the
California public nuisance statutes must be enforced in such a way as to
operate in a constitutional fashion”].) Here, the trial court determined that,
even if the remedy were authorized by the public nuisance or UCL statutes,
the City’s proposed injunctive relief would violate defendants’ constitutional
right to intrastate travel.
“The right of intrastate travel has been recognized as a basic human
right protected by article I, sections 7 and 24 of the California Constitution.”
19
(Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100, citing In re White
(1979) 97 Cal.App.3d 141.) And the United States Supreme Court has
observed, “[T]he freedom to loiter for innocent purposes is part of the ‘liberty’
protected by the Due Process Clause of the Fourteenth Amendment. We have
expressly identified this ‘right to remove from one place to another according
to inclination’ as ‘an attribute of personal liberty’ protected by the
Constitution.” (City of Chicago v. Morales (1999) 527 U.S. 41, 53.) The right
to intrastate travel is based on its necessity for daily life. It has been said,
“The right to travel locally through public spaces and roadways—perhaps
more than any other right secured by substantive due process—is an
everyday right, a right we depend on to carry out our daily life activities. It
is, at its core, a right of function.” (Johnson v. City of Cincinnati (6th Cir.
2002) 310 F.3d 484, 498 (Johnson).) 17
As a preliminary matter, the City suggests the trial court applied the
incorrect level of scrutiny in evaluating the constitutionality of the proposed
injunction. The City argues the correct standard for assessing the
17 Although the United States Supreme Court has not explicitly
recognized a federal constitutional right to intrastate travel, the federal right
was recognized by the Sixth Circuit Court of Appeals in Johnson. (310 F.3d
at pp. 487–488, 498, 502–505 [concluding an ordinance banning individuals
arrested for drug offenses from “drug exclusion zones” violated the right to
intrastate travel of plaintiffs subject to the ordinance]; see also Ramos v.
Town of Vernon (2d Cir. 2003) 353 F.3d 171, 176 [“The right to intrastate
travel, or what we sometimes will refer to as the right to free movement, has
been recognized in this Circuit”]; Lutz v. City of York (3d Cir. 1990) 899 F.2d
255, 267 [recognizing the Due Process Clause protects the right to intrastate
travel]; but see McGraw v. City of Oklahoma City (10th Cir. 2020) 973 F.3d
1057, 1081 [while acknowledging that several “circuits have explicitly held
that a fundamental right to the freedom of movement exists” the Tenth
Circuit Court of Appeals has “concluded that the fundamental right to
freedom of movement ‘appl[ies] only to interstate travel’ ”].)
20
constitutionality of the proposed injunctions is the standard used in
probation condition cases such as People v. Smith (2007) 152 Cal.App.4th
1245. In Smith, the court held, “Probation conditions restricting a
probationer’s exercise of his constitutional rights are upheld only if narrowly
drawn to serve the important interests of public safety and rehabilitation,
and if they are ‘specifically tailored to the individual probationer.’ ” (Id. at p.
1250.)
Defendants contend that the correct level of scrutiny is strict scrutiny
(i.e., “narrowly tailored to promote a compelling governmental interest”)
because the proposed injunctions impinge on defendants’ fundamental right
to travel. (Nunez by Nunez v. City of San Diego (9th Cir. 1997) 114 F.3d 935,
944, 946 [applying strict scrutiny review to a curfew ordinance challenged on
the ground it infringed on “fundamental rights” of “the right of free
movement and the right to travel”]; see Thompson v. Mellon (1973) 9 Cal.3d
96, 102 [applying strict scrutiny test to durational residence requirements for
candidacy for public office because “such restrictions on the right to be a
candidate impinge on . . . fundamental rights, [including] . . . the right to
travel”].)
We need not decide this question, however, because the trial court
applied the standard the City advocates and still determined the proposed
injunctions would impermissibly infringe the constitutional right to travel.
The trial court wrote, “ ‘[a] probation condition that imposes limitations on a
person’s constitutional rights must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as unconstitutionally
overbroad.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The broad relief
the People seek here—a preliminary injunction prohibiting defendants from
entering an entire neighborhood of San Francisco—sweeps far more broadly
21
than the stay-away order from a single chain of stores involved in [People v.]
Moran.[18] By no stretch of the imagination is it narrowly tailored.” (Italics
added.) Thus, the court found, even under the more lenient standard used for
probation conditions imposed on individuals who have been convicted of
crimes, the City’s proposed injunctions would violate defendants’
constitutional right to intrastate travel.
The City next asserts that the trial court erred by “fail[ing] to consider
the ‘fit’ between the proposed restriction, [defendants]’ misconduct, and the
nuisance conditions in the Tenderloin community.” We see no basis for this
assertion. The trial court explicitly found the injunctive relief sought by the
City was “[b]y no stretch of the imagination . . . narrowly tailored,” because,
18 The City had cited People v. Moran (2016) 1 Cal.5th 398, for the
proposition that a stay-away order’s “incidental effect of precluding a
defendant from traveling within the stay-away area” would not violate a
constitutional right to travel. In Moran, the defendant stole items from a
Home Depot store and, in a plea deal, agreed to the probation condition that
he not enter any Home Depot store or adjacent parking lot in the state of
California. (Id. at p. 401.) Addressing the defendant’s subsequent challenge
to the probation condition as violating his right to travel, the California
Supreme Court concluded, “The effort fails, as the condition simply does not
implicate his constitutional travel right. Indeed, one struggles to perceive
how the condition curtails his right to free movement in any meaningful way.
Although defendant argues he is prohibited ‘from entering large areas of the
state’ and from ‘shopping or working in any store that shares a parking lot
with a Home Depot,’ that surely is an exaggeration. He remains free to drive
on any public freeway, street or road, use public transportation, work (except
in Home Depot stores), shop, visit the doctor's office, attend school, enjoy
parks, libraries, museums, restaurants, bars, clubs, and movie theaters. He
may—without violating the challenged condition—freely move about his
community, the city, and the State of California. In short, the restriction on
[the defendant’s] movement imposed by the probation condition is too de
minimis to implicate the constitutional travel right.” (Id. at p. 407, italics
added.)
22
“[r]ather than prohibit specified harmful conduct, it prohibits mere presence
in the exclusion zone, at any time of the day or night and for any reason . . .,
including accessing vital social and health services.” In this way, the trial
court found, based on the evidence before it, that the proposed 50-block stay-
away orders were not necessary to address the harm caused by defendants.
The record showed that each defendant was arrested in a small area within
the proposed abatement area, and the trial court reasonably could have
determined that the exclusion zone was unnecessarily large or its borders
unnecessarily kept these defendants from accessing public transit and health
and social services. Although the City contends these defendants have no
reason to ever even be in the 50-square-block Tenderloin neighborhood except
to sell drugs there was evidence that many community resources and
government agencies are located in the Tenderloin, and the trial court
certainly was not required to discredit defendants’ statements that they were
interested in taking advantage of the employment, treatment, housing, and
health services available in the 50-square-block neighborhood. 19
We have rejected the City’s legal claims that the trial court applied the
incorrect level of scrutiny and that it failed to consider the “fit” between the
proposed restrictions and harm at issue. What remains is the trial court’s
determination, based on the evidence presented, that the City’s proposed
injunctions are not sufficiently narrowly tailored to address the harm at issue
to pass constitutional muster. Although the City continues to argue that the
proposed injunctions are narrowly drawn, to establish reversible error, the
19 Moreover, the “ ‘right to remove from one place to another according
to inclination’ [i]s ‘an attribute of personal liberty’ protected by the
Constitution” (City of Chicago v. Morales, supra, 527 U.S. at p. 53), and it is
not normally an individual’s burden to show she has a reason or purpose for
traveling from place to place.
23
City must show the trial court’s contrary factual findings are unsupported by
substantial evidence. (People ex rel. Feuer v. FXS Management, Inc., supra, 2
Cal.App.5th at p. 1159.) That it has simply failed to do. We defer to the trial
court’s factual findings even when they are applied to constitutional concerns.
(See Acuna, supra, 14 Cal.4th at pp. 1121–1122 [considering a constitutional
challenge to a gang injunction provision, the California Supreme Court
“defer[red] to the superior knowledge of the trial judge” on the question
whether a lesser restriction would be reasonable.]) Therefore, we will not
disturb the trial court’s ruling on the City’s motions for preliminary
injunctions.
We close by observing that we do not minimize the serious and
pervasive harm caused by the flood of street-level drug sales in the
Tenderloin. We are mindful of, and sympathetic to, the challenges faced by
the City in addressing the issues of illegal drug sales, drug use, and the drug-
related health crisis and its effects on the people who live and work in the
neighborhood. That said, we hold—and it is all we hold—that the City has
not shown the trial court erred in denying the City’s requested interim relief
against these four defendants.
DISPOSITION
The order denying the motions for preliminary injunctions is affirmed.
24
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A162872, People v. Padilla-Martel; A162873, People v. Zelaya; A162874,
People v. Sanchez; A162875, People v. Aguilar-Benegas
25
Court: San Francisco County Superior Court
Trial Judge: Hon. Ethan P. Schulman
Dennis J. Herrera and David Chiu, City Attorneys, Peter J. Keith, Chief
Attorney, Meredith B. Osborn, Chief Trial Attorney, and Holly D. Coulehan,
Deputy City Attorney, for Plaintiff and Appellant.
Swanson & McNamara, Edward Swanson, Carly Bittman; American Civil
Liberties Union Foundation of Northern California, Chessie Thacher; DLA
Piper, David F. Gross, Robert Nolan, Mandy Chan, Karley Buckley and
Katherine Thoreson for Defendants and Respondents.
Tifanei Ressl-Moyer and Lauren Carbajal for Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area, National Harm Reduction Coalition,
Pangea Legal Services, Centro Legal de la Raza and Coalition on
Homelessness as Amici Curiae on behalf of Defendants and Respondents.
A162872, People v. Padilla-Martel; A162873, People v. Zelaya; A162874,
People v. Sanchez; A162875, People v. Aguilar-Benegas
26