By Shawn Raymundo

The city of San Clemente is facing another homeless-related lawsuit filed by the same advocacy groups that previously challenged the city for not doing enough to provide shelters in a federal case that was recently dismissed.

The nonprofit groups Housing is a Human Right Orange County and Emergency Shelter Coalition, along with Duane Nichols, a homeless man from San Clemente, filed the separate state lawsuit against the city, as well as the County of Orange this past September.

The city on Nov. 13 was formally served with the complaint, which was filed with Orange County’s Superior Court.

During the city council’s latest meeting on Nov. 19, acting Mayor Dan Bane announced that the city had been served and is currently working with its attorneys from Jones Day to determine whether they should file an injunction against the plaintiffs.

The injunction, Bane explained, would be based on the grounds of res judicata—a matter that’s already been adjudicated.

“The issues that are litigated in the state lawsuit are substantially similar to the ones in the federal lawsuit, which we won,” Bane said. “So, hopefully, we’ll have good news and an update on that.”

Attorneys representing Nichols and the advocacy groups did not immediately return San Clemente Times’ phone calls requesting comment as of the posting of this story.

The federal suit alleging that the city hasn’t provided adequate access to homeless shelters was dismissed late last month. U.S. District Judge Percy Anderson gave Nichols and fellow plaintiff Darren James until Nov. 18 to file an amendment to the complaint, but they didn’t submit one.

Initially, the cities of Dana Point and San Juan Capistrano, as well as Aliso Viejo and Irvine, were also named in the federal suit. The court ruled in mid-August, however, to dismiss the suit against the neighboring cities, because they were not properly joined, but maintained San Clemente as the primary defendant.

Anderson had dismissed that complaint because the plaintiffs’ argument against the city lacked standing.

In the new, state lawsuit, Nichols and the advocacy groups again allege that San Clemente violated the homeless’ due-process rights by threatening them with arrest and citation for “sleeping in or keeping personal property on public spaces when there is inadequate shelter.”

The plaintiffs also claim that the city, through code enforcement and Orange County Sheriff’s Deputies, “detained, interrogated and ordered individuals in the City, who appear to be homeless, to move along from public places where they have a right to be and, in some instances, to leave the City.”

The suit later alleges that the city violated the California Disabled Persons Act because it “threatened arrest and offered services that do not provide reasonable accommodations to people experiencing homelessness in San Clemente.”

Throughout the advocacy groups’ 43-page complaint, they cite several instances of the city allegedly neglecting its responsibility to offer homeless individuals with adequate shelter and services. Touching on the city’s temporary outdoor shelter on Avenida Pico, specifically, they argue that it doesn’t meet state requirements.

“There is no principled distinction to justify a claim that San Clemente met its obligations under state law by setting up a tent city that does not meet the requirements for a shelter to be within a specified distance of essential services as the need is the same,” the lawsuit states.

“The campsite on Avenida Pico has no potable water, no shade, no adequate sanitation, and no access to food,” it goes on to claim. “It is accessible only by climbing a substantial hill. Both the access barriers and the conditions on site violate the rights of disabled persons forced to the location.”

According to the lawsuit, the groups are seeking a judgement from the court that finds the city’s policies violate California’s constitution, as well as an order restraining the city and county from “citing or arresting and threatening to cite or arrest individuals” for camping or loitering in public spaces “when there is no adequate shelter or other placement available.”

SR_1Shawn Raymundo
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.

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comments (7)

  • What a joke! Follow the money from these supposingly well-intentioned advocacy groups. The attorneys make money; their goal is to have San Clemente be forced to build a gigantic shelter and PSH for these society drop outs (mostly by choice). The contractor/builder makes money, the PSH rent would be guaranteed by the government (more $ in owner’s pocket.). This new industry known as the Poverty Pimps care nothing about long-time mental health & drug rehab—which is what these vagrants need. And don’t get me started about Duane. This guy is NOT from San Clemente. He came from Arizona and then the SA riverbed. He is a veteran, they say, who should get veteran’s benefits. (My understanding he doesn’t have an honorable discharge.) He has since been offered an apartment by this advocacy group—and voluntarily moved out and back to being homeless by choice to San Clemente. They majority of “homeless” we have here have come here from other cities because they’ve been informed we have a free campground near the ocean, free food, a convenient liquor store & 7/11, and of course access to drugs from our local drug dealers. We own them nothing!

    • We need a shelter in San Clemente already. Dragging our heels is only making the problem worse for all parties. The only way to offer a solution is by doing so genuinely. Arresting the homeless or sending them somewhere else and pretending like this is not a growing problem in our society will never bring any hope for change. Actually having a place to offer help is a start to actually have a concrete way of ending the suffering. The goal of a shelter is to regain productive members of society so I have no idea why we would not want that here. Sure, not every homeless person that our shelter will help will end up off the streets but we can’t keep ignoring the problem and ignoring our neighbors. Christianity teaches its followers to love unconditionally and San Clemente being a predominantly Christian town, you would think a shelter would be approved and built the day any homeless started showing up. But alas, it appears many people are not what they claim to be. Life.

      “Whoever is kind to the poor lends to the LORD, and he will reward them for what they have done.”

  • The “advocacy groups” should stop filing law suits and shift their focus on actually helping Duane get off the streets. They’ve been suing the city for over a year and yet this man, is still living on the streets. Or if they have offered him housing, is he service resistant? In that case, would a shelter even be a solution?

    • Aimee is correct, it is a total scam. They have little to lose by filing lawsuit after lawsuit but much to gain by it, both in the filing (pay from the non-profit that gets money from simple minded fools or larger self-interests) and payouts if they win. Payouts in various forms as Aimee lists some.

      The city needs to sue them back for recovery of fees, even if it does not take from the pockets of the officers of the non-profit, which it should. The plaintiffs are hiding behind the non-profit because if the city were to file and win what would they get? Those behind this scam will just do another “non-profit” and repeat and repeat.

      I’m sick of all the corruption and games and truly hope the city can find a way to issue severe pain for those involved with the “non-profits.”

      • Tom – I have a question, as a *normal* person I’m not 100% sure how this works, but my understanding is that non-profits are exempt from paying taxes. Non-profits can receive government funding which comes directly from tax payers. These two non-profits named in the article, Housing is a Human Right Orange County and Emergency Shelter Coalition most likely benefit off the backs of tax-payers, (for sure #1) and now they are suing the city FOR A SECOND TIME which is costing tax payers even more money in fees to fight this. I am starting to wonder if there. is there a way for tax payers whose money is being misused by these non-profits can sue the non-profits, expose them for what they are, and have them pay back the money they are stealing. I for one would rather have my money going to public education for our kids or fixing or roads or to first responders – or basically anywhere else than funding ridiculous lawsuits that have already been decided.

  • They offered that jerk Duane Nichols a FREE apartment just like they did with the other bum that was in the original lawsuit. Guess what? He REFUSED it. Total scumbag attorneys just litigating for literally no reason. And what law states we have to give some random hobo from ARIZONA a free apartment? Yes, he’s literally from Arizona and came here just to squat in our city. This is a total joke and a sham! The attorneys and the civilian advocates need to be sued for wasting our tax dollars on this garbage.

  • Ask … why did we not have this issue in our small community or for that matter any community 30;years ago. What has changed in our society, our laws, our national and local policies and core beliefs and our standards that has allowed these conditions to be present?

    When we answer these questions we will be on the way to a solution.

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