A federal judge has thrown out almost all of a closely-followed lawsuit seeking to add homeless shelters in south Orange County, while leaving open the possibility of the case being re-filed as a series of separate lawsuits against cities.

In his ruling this week, Judge Percy Anderson removed four of the five cities being sued, and rejected the existing legal arguments against the fifth city, San Clemente.

“The Court concludes that Federal Rule of Civil Procedure 20 does not allow the [joining] of Plaintiffs’ claims against each of the municipalities into a single [lawsuit],” Anderson ruled in his decision, which is dated Monday and was published Wednesday on the court’s website.

He dismissed Aliso Viejo, San Juan Capistrano, Irvine, and Dana Point from the lawsuit completely.

If the plaintiffs want to continue the case, they’ll have to submit an amended lawsuit against San Clemente by Sept. 16 that addresses the city’s newer anti-camping ordinance the city passed after the lawsuit was filed. And lawyers for homeless people could re-file the case as individual lawsuits against the cities that were dismissed.

“Failure to file [an updated lawsuit against San Clemente] by that date may, without further warning, result in the dismissal of this action with prejudice,” Anderson ruled. The updated lawsuit “shall not include any new or different defendants, claims, causes of action, or legal theories” other than those Anderson allowed in his ruling, he wrote.

[Click here to read the ruling.]

“I’m glad to see that there was a favorable result,” said Mayor Ross Chun of Aliso Viejo told Voice of OC in a phone interview Thursday. “We did follow the advice of our legal counsel very closely. So, I was pleased to see that the advice was solid and that we got a favorable result.”

“That was a procedural error, if you would, that the judge found, that the plaintiffs made,” said Stephen Larson, a former federal judge who represented Irvine in the south county lawsuit. “They could refile.”

“I think it was an important decision, because it underscores that each of these cases are individuals, and you can’t just…treat them all the same,” Larson said in a phone interview.  As for enforcement of Irvine’s anti-camping laws, he said the city has worked “to make sure that our laws are completely in conformity” with the law.

The lead attorneys for homeless people in the case expressed concern that homeless people will continue to die in south county due to a lack of shelter.

“We are, of course, disappointed and hope no one else has to die before steps are taken to address the South County situation,” attorney Carol Sobel said after the ruling.

As of Thursday afternoon, the plaintiffs attorneys were reviewing the ruling before deciding on next steps.

The south county lawsuit asked the court to block five south county cities from enforcing their anti-camping laws against homeless people until adequate shelter is offered as an alternative to sleeping in public.

The case is based largely on the U.S. 9th Circuit Court of Appeals’ ruling last year in Martin v. City of Boise, which found it’s unconstitutional to punish homeless people for camping outside unless adequate shelter is available as an alternative.

The south county lawsuit originally was overseen by Judge David O. Carter in Santa Ana until he was removed in June and the case was reassigned to Anderson, who is based in Los Angeles.

Part of the south county’s suit’s goals were seemingly accomplished on July 23, when a settlement agreement in a separate lawsuit overseen by Carter limited most of south Orange County from anti-camping and loitering enforcement against homeless people until the cities create shelter beds as an alternative.

The settlement requires that a shelter bed within the same zone of the county, such as south county, be offered and available before the county Sheriff’s Department can enforce the camping and loitering laws against a homeless person. The few shelter beds in south county that would be eligible to most homeless people there usually are full each night, according to officials.

The ruling this week doesn’t change the settlement, which requires a shelter bed within the same region of the county be offered to a homeless person before anti-camping and loitering laws can be enforced by the Sheriff’s Department.

Meanwhile, south county mayors have been asking the county to open up beds in north and central county to homeless people from south county.

“There are nearly 500 vacant emergency shelter and transitional housing beds in the North and Central [homeless service regions],” the mayors wrote in a letter this month to county Supervisor Lisa Bartlett, citing county data from January’s point in time count.

“The 2019 Point in Time Final Report also cited a population of 538 unsheltered homeless in the County’s [southern] 5th District. Providing access to these beds to all homeless individuals in the County, irrespective of where they currently reside, would result in the largest positive step taken in addressing homelessness.”

A chart in the point in time report does show 453 vacant beds in January in the north and central regions. But immediately below that is another chart showing that more than half those beds are restricted to adults with children, which are not eligible for the vast majority of homeless people on the streets of south county.

In response, Bartlett stood by the existing approach of having shelters serve homeless within the same region of the county. And she contested the mayors’ characterization of the vacant bed numbers.

“Some of the available beds were from the seasonal armory program which had a restricted transportation referral policy created by the cities where they are located,” Bartlett wrote in her response.

“Many of the other beds that were available were restricted to certain populations, like women and families and those were accessible by homeless people countywide.”

Additionally, she wrote, “the County’s year-round shelters are generally at capacity because there are more homeless individuals in need of shelter than beds available.”

“The Countywide ability to make meaningful progress requires a recognition that homelessness is an issue that requires response from all levels of government,” Bartlett wrote, adding she stands ready to work with south county cities to create “impactful solutions.”

Asked how many of the 500 vacant beds cited in the letter are eligible to homeless people in south county, Chun, who signed the letter, said he and the other mayors were using the best information they had at the time.

“We were going with the most accurate information that was available to the mayors when we provided that letter. So at the time that’s the information that we had.”

He said it “represented a significant number of beds, even if a portion of those are being devoted to families and children.”

Under the July settlement agreement in the case overseen by Carter, “the Sheriff’s Department will not enforce anti-camping” laws in the south county cities it patrols until shelter is made available in south county, county Supervisor Andrew Do said at the time.

The department serves as the police force for about two-thirds of south county residents, covering 10 of the region’s 12 cities, none of which have agreed to build a shelter in their jurisdiction since Carter asked them to in spring 2018.

Irvine and Laguna Beach have their own police departments and are not subject to the settlement, which was agreed to by county officials and lawyers for homeless people.

The new agreement calls on different regions of the county to make certain there’s a “respective responsibility” for homeless people, rather than “dumping off” homeless people from one area to another, Carter said at the July 23 hearing where it was finalized.

“This stops that dumping. This stops that moving over the borders. Each [region of the county] takes care of its own. Each city takes care of its own,” Carter said.

The agreement bars the Sheriff’s Department from transporting homeless people outside of three defined geographic regions of the county, known as “SPAs,” one of which is south county, from Irvine to San Clemente.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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