$1 Billion LA Homelessness Injunction Reversed by 9th Circuit: Judge's Independent Factual Investigation Was Improper

Timothy Kowal, Esq.
September 24, 2021

Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial courts are given wide discretion in issuing preliminary injunctions, the Ninth Circuit in LA Alliance for Human Rights v. County of Los Angeles, ___ F.4th ___ (2021) 2021 WL 431791, thought this was coloring rather far outside the lines.

Events Leading Up to the Preliminary Injunction:

Although the plaintiffs got more than they asked for, ironically they filed their lawsuit when the district court denied their motion to intervene in another case to challenge the city's settlement affecting Skid Row. The plaintiffs' complaint included claims, some against the city, some against the county, some against both, for failing to provide medical care and shelter, to clear encampments, and to comply with disability laws. The plaintiffs did not allege any claims based on racial discrimination.

The district court held almost a dozen settlement and status conferences over the next year. As part of these sessions, the court apparently took it upon itself to invite comments (the opinion is not clear, but suggests they were not sworn testimony) from nonparty community members, elected officials, and clergy. The court then "relied almost exclusively on this extra-record evidence, and expressly did not rely on Plaintiffs' preliminary injunction evidence." The court also "relied on legal theories that Plaintiffs did not plead or argue," including state-created danger, equal protection, and substantive due process claims based on "a history of structural racism and discrimination."

But to the court's frustration, no settlement formed. The court issued an order to show cause. Plaintiffs then filed their motion for a preliminary injunction, asking the court to order the city and county to offer shelter to all unhoused people in Skid Row, clear all encampments, and prohibit camping there. The plaintiffs requested relief that was based on the prayer in their complaint.

The Preliminary Injunction:

The district court granted the preliminary injunction. But the injunction went well beyond what the plaintiffs had asked for. The injunction required the city and county to post a staggering $1 billion in escrow to address homelessness. (The plaintiffs had not asked for any dollar amount.) The court also ordered the city and county to offer shelter to everyone on Skid Row within 180 days, and, while we are at it, to create a “plan that ensures the uplifting and enhancement of Skid Row without involuntarily displacing current residents." The court also imposed various auditing, investigation, and reporting requirements.

The city and county appealed, and the Ninth Circuit stayed the preliminary injunction pending the appeal.

Injunction Reversed:

The Ninth Circuit reversed the preliminary injunction. The court observed, early and often, that the district court's ruling was not based on claims the plaintiffs had actually advanced.

The injunction was based on the court's finding that the plaintiffs were likely to prevail on six claims: (1) due process violation based on the state-created danger doctrine; (2) due process violation based on the special-relationship doctrine; (3) equal protection violation on the basis of race; (4) substantive due process violation to black families' right to family integrity; (5) Welfare and Institutions Code section 17000 violations; and (6) ADA violations.

But as the Ninth Circuit pointed out: "Of these six claims, Plaintiffs had not asserted or moved for injunctive relief on the first four and had asserted the fifth against only the County and the sixth against only the City. The district court's explanation for why these claims had a likelihood of success on the merits also relied on legal theories that Plaintiffs did not plead or argue, including the race-based discrimination theories underpinning the state-created danger, equal protection, and substantive due process claims. In addition, the district court relied almost exclusively on extra-record evidence, and expressly did not rely on Plaintiffs’ preliminary injunction evidence."

Here, the court noted that "the district court granted relief based on claims that Plaintiffs did not allege, supported by novel legal theories that Plaintiffs did not argue, or against Defendants against whom the claim was not pled. In doing so, the district court abused its discretion because it only had equitable power to grant relief on “the merits of the case or controversy before it,” and “does not have the authority to issue an injunction” “based on claims not pled in the complaint.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015)."

Injunction Reversed on Claims Plaintiffs Lacked Standing to Assert:

Flowing in part from the fact that the district court had based its relief on claims the plaintiffs had not asserted, the Ninth Circuit was forced to observe that these particular plaintiffs did not have standing to raise most of those claims. For that reason alone, the injunction was reversed.

At the preliminary injunction stage, the plaintiffs “must make a clear showing of each element of standing,” Yazzie v. Hobbs, 977 F.3d 964, 966 (9th Cir. 2020) (per curiam) (quoting Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013)), relying on the allegations in their complaint “and whatever other evidence they submitted in support of their [preliminary-injunction] motion to meet their burden.” City & County of San Francisco v. U.S. Citizenship & Immigr. Servs., 944 F.3d 773, 787 (9th Cir. 2019) (alteration in original) (quoting Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (per curiam)). The plaintiffs “must demonstrate standing separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 185 (2000), and the “remedy must be tailored to redress [their] particular injury,” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018).

Here, the Ninth Circuit noted that not only did the plaintiffs not bring any race-based claims, they also "did not allege or present any evidence that any individual Plaintiff or LA Alliance member is Black—much less Black and unhoused, a parent, or at risk of losing their children." The plaintiffs thus lacked standing to bring the claims on which the district court had relied.

The same result followed for all the other claims except for one, the ADA claim. But that claim fell because of the district court's reliance purely on extra-record evidence.

Error to Rely on Extra-Record Evidence, and Improper for Judge to Conduct Independent Factual Investigation:

The Ninth Circuit noted the "second overarching problem" with the preliminary injunction order was "the district court's almost exclusive reliance on extra-record evidence." While the plaintiffs did adduce evidence of their own, the district court appears not to have relied on any of it. "Instead, the district court relied on its own independent research and cited material not subject to judicial notice." This was improper.

Courts may not “[take] judicial notice of the truth of disputed factual matters." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Accord Fed. R. Evid. 201. But here, the district court "relied on hundreds of facts contained in various publications for their truth, and a significant number of facts directly underlying the injunctive relief are subject to reasonable dispute." The Ninth Circuit referenced in particular the district court's conclusion of the nefarious purpose and effects of the city's 1976 Containment Policy. But the Ninth Circuit notes that "experts extensively debate the history, purpose, and effect of the Containment Policy, which the district court found resulted in the “incarceration and homelessness” of Black Angelenos." \

The court concluded that "To the extent the district court premised the injunctive relief on improperly noticed facts necessary to confer standing, the district court abused its discretion. Cf. Lee, 250 F.3d at 690 (holding that the district court erred in granting a motion to dismiss “by relying on extrinsic evidence and by taking judicial notice of disputed matters of fact to support its ruling”)."

Parting Thought:

In the novel The Man in the Grey Flannel Suit, the protagonist visits a local judge, discussing a dispute he is having with his neighbor: the protagonist wants to subdevelop his neighborhood of several-acre parcels into several homes each, but the neighbor opposes the plan. The judge, sympathetic to the earnest young protagonist's plight, undertakes his own investigation and digs up some dirt on the neighbor, with the upshot being the protagonist gets his way, making the way for progress.

The result in the book, as was the result of the district court here, was broad-minded and public-spirited. But the means were highly irregular.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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