san francisco chinese christian union, et al. v. city and county of san francisco, et al.; complaint
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Kevin T. Snider,
CA
SBN 170988
1
Michael J Peffer,
CA
SBN 192265
Matthew B. McReynolds
CA
SBN
234
797
PACIFIC JUSTICE INSTITUTE
212 9th Street, Suite 208
Oakland, CA 95827
Tel.: (510) 834-7232
Fax: 9
16)834-8784
E-mail: [email protected]
Conrad Reynoldson,
WA
SBN 48187
2
WASHINGTON CIVIL DISABILITY ADVOCATE
44
21
51
51
A venue N mtheast
Seattle, WA 98105
Te
l
: (206) 855-3134
E-mail: Comad,[email protected]
Attorneys for Plaintiffs
PR 1 4Z 16
CLERK OF
THE
COURT
BY
:
t}OWMAN
LIU
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SAN FRANCISCO CHINESE CHRISTIAN
UNION,
RICHARD LAM, PEGGY LAM,
PATRICK
SULLIVAN,
SYLVIA
TERPSTRA,
Plaintiffs,
vs.
CITY AND
COUNTY
OF SAN FRANCISCO,
PIDLIP ALAN GINSBURG, GENERAL
MANAGER, RECREATION
AND PARKS
DEPARTMENT, in his official capacity,
Defendants.
1
Counsel
of
record and for service.
2
Application for
pr
h c vice pending.
Case No. 16 551486
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
[CCP §526a]
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COMES OW PLAINTIFFS who allege as follows:
2
3 ntroduction
4 The City and County
of
San Francisco has installed a three-inch hole in the center
of
a three-
5 foot diameter concrete base for public urination. This hole
is
called a
pissoir
t is located at the
6
southwest quadrant
of
Mission Dolores Park at a busy street corner, between a sidewalk and a train
7 stop. Persons urinate into the hole in public view. There is no signage, accessibility for persons wit
8 disabilities, and no place to wash hands. This complaint is brought as a taxpayer action for equitable
9 relief to prevent the continued illegal and wasteful expenditure
of
public funds to install and maintai
10 the pissoir The basis for the requested relie f is that the pissoir violates the Jaw and public policy
regarding privacy, sex discrimination, public health, access for persons with disabilities, and the
12 Plumbing Code. Because the City Attorney and Attorney General have failed to bring an action to
13
halt the
pissoir
as a public nuisance, the Plaintiffs bring this Complaint.
4
Parties
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1
Plaintiff, San Francisco Chinese Christian Union is a religious nonprofit corporation
incorporated in the State
of
California and doing business
n
the City and County
of
San Francisco,
California. Its members include fifteen churches within the City and County
of
San Francisco. Thes
represent persons, both male and female, which include residents and citizens of the City and County
San Francisco who have paid a tax to the City and County
of
San Francisco. They use Dolores Park
ride the San Francisco Municipal Transit Authority (SFMTA) in which they board and alight the trai
at the stop at the corner of 20th and Church Street. Further, some of their members are wheelchair
bound
or
take care
of
a child or parent who uses a wheelchair.
The San
Francisco Chinese Christian
Union has served the residents
of
San Francisco since 1916. Additionally, the purpose statement
of
t
San Francisco Chinese Christian Union's bylaws state: The purpose
of
this organization is to prom
Christian fellowship among the churches and to work cooperatively in projects directed toward the
community and in projects related to the spreading of the Christian Gospel. The mission and goal o
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the members includes caring for the sick
and infirm within the community.
To
that end,
the
San
Francisco Chinese Christian Union was one of fifteen organizations which raised funds to build the
Chinese Hospital in 1923
and
which was erected in 1925.
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Since its inceptions, a representative from
the
San
Francisco Chinese Christian Union has sat
on
the board
of
the Chinese Hospital. The
San
Francisco Chinese Christian Union has an interest in the care of the sick, including those with
disabilities . Moreover, the
San
Francisco Chinese Cluistian Union has associational standing to brin
taxpayer suit.
2. Richard Lam is a resident and citizen of the City and County of San Francisco,
California, who owns real prope1iy within that jurisdiction and has, within one year of the filing
of
th
Complaint, has been accessed for and liable to
pay
a tax - including, but not limited to, property taxe
to, and for the benefit
and
support of, the City
and
County of San Francisco. Mr. Lam uses Dolores
Park, at times riding the train there.
3. Peggy Lam is a resident and citizen of the City and
County
of San Francisco, Californ
who owns real prope1iy within that jurisdiction and has, within
one
year of the filing of this Complai
has
been
accessed for and liable to
pay
a tax - including, but
not
limited to, property taxes - to, and
the benefit and support of, the City
and
County of
San
Francisco. Mrs. Lam uses Dolores Park, at
times riding the train there.
4. Patrick Sullivan is a resident and citizen of the City and County of San Francisco,
California who has, within one year of the filing of this Complaint, been accessed for and liable to pa
a tax - including, but not limited to, property taxes - to, and for the benefit and supp01i of, the City a
County of San Francisco. Mr. Sullivan lives across the street from Dolores Park and has a clear vie
of persons using the p sso r from his kitchen window. He is informed
and
believes and thereon alleg
that the presence of the p sso r negatively impacts the value of his home.
3
The
Tung Wah Dispensary (est. 1899) was destroyed in the 1906 earthquake. The Chinese Hospita
was established in 923 to replace the Dispensary.
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5 Sylvia Terpstra is a resident and citizen
of
the City and County
of
San Francisco,
California, who owns real prope1iy within
that juri
sdiction and has, within one year
of
the filing
of
th
Complaint, has been accessed for and liable to pay a tax - including, but
not
limited to, property taxe
4 to, and for the benefit and support of, the City and County
of
San Francisco. She uses Dolores Park
5
at times riding the train there.
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6.
Defendant, City and County of San Francisco, is an entity established pursuant to A1i
XI
, §6,
of
the California Constitution. The City and County
of
San Francisco has jurisdictional cont
over the Recreation and Parks Department, including Mission Dolores Park, the sidewalks surroundi
Mission Dolores Park, and the
San
Francisco Municipal Transportation Agency which has a stop
at
t
corner of 20th and Church Street. The City and County of San Francisco lays and collects taxes for
support
of
its activities within its jurisdiction. The City and County of San Francisco has authority
over
the
installation and maintenance of the
pissoir.
Moreover, the City and County of San Francisco
has authorized the expenditure of
funds for the installation and maintenance
of
the
pissoir.
7 Defendant, Philip Alan Ginsburg, serves as the General Manager
of
the Recreation an
Parks Depaiiment for the City and County
of
San Francisco. Mr. Ginsburg has operational oversigh
parks within San Francisco, including Mission Dolores Park.
The
Plaintiffs are informed and believe
and thereon allege
that
at all times herein mentioned, Mr. Ginsburg was in office and had control and
oversight over the installation
of
the
pissoir.
The Plaintiffs are further informed and believe and
thereon allege that at all times herein mentioned, Mr. Ginsburg currently has control and oversight ov
the maintenance
of
the
pissoir.
He is named in his official capacity.
enue
8 Venue in the Superior Court in and for the County of San Francisco is proper because
both the real property Mission Dolores Park, the sidewalks
sunounding
the park, and the train stop)
and the res
pissoir),
which is the subject
of
this dispute, are located in the City and County
of
San
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Francisco, California. Moreover, all actions described herein occurred within the City and County
o
San Francisco. Further, the Plaintiffs reside and conduct business within the City and County of Sa
Francisco. The Defendant conducts business within the City and County
of
San Francisco and
Plaintiffs are informed and believe and thereon allege that the Defendant also resides there in the Cit
and County
of
San Francisco,
as
well.
acts
9. Mission Dolores Park is a
16 1
acre city
park
in San Francisco, California, located
the eastern edge of the Castro/Upper Market neighborhood, bounded by 18th Street to the north,
Dolores Street to the east, 20th Street to the south, and Church Street to the west. The majority
of
Mission Dolores Park consists of open space, totaling approximately 11.9 acres, including a
playground, two dog play areas, multi-use field, and other grassy and landscaped areas.
Open
betwe
6 a.m. and 10 p.m., Mission Dolores Park is primarily used for active and passive recreation,
as
well
various public events, including concerts, outdoor movie nights, performances, political rallies, and
other events.
10.
The Mission Dolores Park Rehabilitation Project ( Project )
was
financed by the 200
Clean and Safe Neighborhood Parks $153 million general obligation bond approved by San Francisc
Voters n 2008. Id.
at 1
The project sponsor, the San Francisco Recreation and Park Department use
portion
of
the $13.2 million for the Mission Dolores Park rehabilitation.
11.
Plaintiffs are informed and believe and thereon allege that two new restrooms were
included for a total
of
34 fixtures (toilets). Mission Dolores Park maintenance
staff
is able to increas
or
decrease the number of fixtures available to the public by opening locked interior sliding partition
type doors in the new
restroom buildings. Tempora1y portable toilets are added for large events
(greater than 5,000 people). Seasonal portable toilets are near the entry plaza.
12. The project also included pissoir (also known as a pPod) in the park s southwestern
28 quadrant, by the entry plaza and
next
to the Muni tracks.
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13. The
p sso r
has a semi-circle screen constructed ofwire fencing. Underneath the wir
fencing is a mesh-type material that is transparent in nature. Plaintiffs are informed and believe and
thereon allege that the material is a vinyl mesh coated polyester or perhaps polypropylene. Behind t
there is a white
mat
erial,
the
composition
of
which is unknown to Plaintiffs, with black lettering prin
on it. The lettering reads: How would you design this playground? Call (415) 895-9381 Other th
that, the
p sso r
has no signage at all. This includes no signage that the hole is a place for urination.
Further, there is no signage that the p sso r is for male, female or unisex use. Finally, there is no
signage regarding disability access or pointing persons with disabilities to restroom facilities that
accommodate persons with disabilities. The slopes
of
the ramps leading to and from the
p sso r
are
steep and dangerous to persons with disabilities. The ramp running parallel to Church Street towards
18th
Street has slopes has steep as 1 2 and completely lacks handrails in some parts. The ramp toward
20th
Street has slopes as steep as 6.
14. The
p sso r
has a 46 diameter concrete base - 36 at the entrance
-and
a drain with a
fine mess grate to catch urine but block solids. The drain includes a one way valve. The mouth of th
drain is five inches in circumference and the hole going to the sewer is
tlu ee
inches in circumference
Plaintiffs are informed and believe and thereon allege that the
p sso r
is designed to accommodate on
user at a time. However, on accession, more than one person at a time urinates in it. A user can ent
the
p sso r
from the north-south internal pathway and face the interior
of
the park. Views
of
the
p ss
user from the interior of Mission Dolores Park are not completely blocked by a screen, which faces t
Muni tracks. Views of the p sso r from the perimeter of the Park and public right-of-way near Chur
Street and 20th Street are
not
hidden.
15.
16.
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The p sso r is not compliant with plumbing codes.
The
p sso r
emanates odors which are offensive to the senses.
The
p sso r
has no soap, running water, or other amenities for washing hands. Person
28 urinating in the hole leave the
p sso r
with unwashed hands and either continue on their way on the
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public sidewalks into the community
or
they board the Muni train which stops five to ten yards from
the hole. These unsanitary conditions result in the spread of germs and disease.
18. Allowing public urination
at
the pissoir is injurious to health. The safety and health
o
the public at large is endangered by the improper disposal
of
human waste in a public place.
19. Allowing public urination at the pissoir is indecent,
and
offensive to the senses.
Facilitating public urination is indecent because it is grossly unseemly or offensive to manners and
morals.
20. Allowing public urination at the pissoir is offensive to the senses. Urine is nauseatin
and offensive
when
excreted in public places. Public urination is offensive to the sense
of
sight and
smell.
21. The
pissoir
is not compliant with laws requiring access to persons with disabilities -
pmticularly those whose mobility depends
on
a wheelchair.
22.
The
individually named Plaintiffs include those who will not use the pissoir because
such would violate their privacy by exposing them to public shame and embarrassment. These inclu
both males and females. The organizational Plaintiff - San Francisco Chinese Christian Union -
represents both males and females who will not use the pissoir for
the
same reason. Fmther,
unexpectedly being exposed to someone s private parts also violates Plaintiffs privacy.
23.
In
the alternative, if he pissoir has been installed exclusively for males, then the fema
Plaintiffs, including those represented by the San Francisco Chinese Christian Union, have been den
equal access to toilet facilities. (Note that there is no signage indicated whether the hole is for male,
female,
or
unisex).
24.
The San Francisco Chinese Christian Union represents persons whom are disabled
or
take care
of
a disabled parent
of
child. Because
of
its construction, persons with disabilities are una
to use the pissoir Further, there is no signage directing persons with disabilities to facilities for
whic
they would have access.
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25. Plaintiffs are informed and believe and thereon allege that the City and County of San
Francisco intends to expend tax dollars on the installation and maintenance
of
additional pissoirs wi
its jurisd iction.
26.
FIRST C USE OF CTION
Violation f Privacy
The
open-air urination hole violates the privacy of those who need to use the restroom
but would be required to expose their bodies and suffer the shame and degradation
of
urinating in
public view. Seclusion in bodily evacuation is a societal norm and constitutes one
of
the
most
basic
expectations for privacy. Privacy is a fundamental right enumerated in the Ca lifornia Constitution.
C
Const., Art. I, §1 as well as the penumbra
of
rights in the U.S. Constitution.
27.
The
hole provided for open-air urination is particularly egregious for women and girl
Because
of
the unique way in which females urinate, when there is no standard toilet for which they
sit, they must lift their skirts or pull down their pants and undergarments and squat over the hole. Th
exposes the entire lower part of their bodies to public view. Women and girls would be subject to
extreme emba1rnssment in a measure not experienced by men or boys who merely unzip their trouse
and aim at the whole when urinating. Indeed, whether a female faces the fence towards the train sto
turns her back to the fence, or squats sideways, she will be exposing much of her body to the public.
28.
Not
only are the privacy rights
of
those having to publically relieve themselves in the
sewer hole abridged, but the privacy rights of individuals who happen to come upon the one urinatin
also violated. San Francisco
s
Board
of
Supervisors has recognized and further articulated the self-
evident proposition that privacy is invaded when a member
of
the public is unwillingly or
unexpectedly exposed to a person's private paiis . S.F. Police
Code§
154(a). The euphemism
private pmis is laid bare in subsection b which reads
in
full , as follows: A person may not expose
his
or
her genitals perineum r anal region on any public street, sidewalk, street median, parklet,
plaza, or public right-of-way as defined in Section 2.4.4(t)
of
the Public Works Code, or
in
any trans
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vehicle, station, platform, or stop of any government operated transit system in the City and County
San Francisco. (Emphasis added).
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. Urinating
in the
pissuir
at the present location is
an act
facially
in
contravention to
th
4 text
of
the
above-quoted law.
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30. S.F. Police Code §154(a) is entirely
consistent
with section 4.01
of the
San Francisco
Park Code which
likewise prohibits exposure
of
the intimate
patts of the body
, i.e., genitals,
pubic
hair, perineum, anal region or pubic hair
region
. Section 4.0l(h) .
31.
Because the act
of
public urination
causes
innocent members
of
the
community
to
unwillingly and unexpectedly be exposed to intimate parts of a stranger s body,
the
open-airpissair
necessarily intrudes upon privacy.
32.
Tax
dollars
have
been, and are being spent,
by
the City and County of
San
Francisco,
and
at the
direction
of
the Recreation and Parks General
Manager on the
above-described activities
which
violate
the privacy
rights of Plaintiffs, their members, and the residents of San Francisco.
33.
Defendants
have utilized employees of
the
City
and
County of
San
Francisco, includi
the
Recreation
and Parks
Department,
in
canying out
the
installation
and
continued maintenance
of
t
pissoir Such
is against public policy and in violation of Plaintiffs' rights.
34.
The expenditure of taxpayer funds for
the
acts described above is an illegal expenditu
of, waste of, or injmy to the estate, funds, or
other
property of the City and County of San Francisco
Thus,
Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
illegal
expenditme
of, waste of, or
injmy
to, the estate, funds, or
other
property of the City and Coun
of
San
Francisco.
35.
Absent relief
from
this Court, Defendants will continue to engage in
conduct
in
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contravention
to the
rights
of
privacy,
and
by extension, public policy, as found
in
the U.S. and
27 California Constitutions
as
well as local codes.
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36
Plaintiffs make this request for injunctive relief based upon their standing as taxpayer
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pursuant to CCP §526a.
37. In addition, there
is
a disagreement between the parties as to whether open-air
pissoir
3
violate privacy rights and are against public policy. Defendants believe that use
of
open-airpissoirs
4 which entail urination in public view, does not violate either privacy rights or public policy relative
5 pnvacy. Plaintiffs disagree.
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38.
Plaintiffs are informed and believe and thereon allege that Defendants will fmiher spe
tax dollars on the installment and maintenance of
otherpissoirs
within the jurisdiction of the City an
County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to
maintain the pissoir
39.
40.
restroom.
As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
SECOND CAUSE OF ACTION
Unlawful
Sex Based Discrimination
The
pissoir
is particularly onerous to the privacy rights ofwomen seeking to use the
41. Plaintiffs are informed and believe and thereon allege that the pissoir has been install
for the exclusive use ofmales. Such violates State law and public policy requiring equal facilities fo
both sexes. Health Safety Code §§ 118500 and 118505 requires that every public agency that
conducts an establislunent serving the public or open to the public and that maintains therein restroo
facilities must have them available for each sex. These facilities must be in conformity with the Stat
Plumbing Code. Under the Code, [s]eparate toilet facilities shall be provided for each sex. 4 CC
412.3. The exception under the re
gu
lations is that facilities that are for single use must be permitted
both sexes.
42. In light of these provisions, if the place for open-air urination is only for men, such
unlawfully discriminates against women. Defendants have no narrowly tailored compelling interest,
which uses the least restrictive means, for installing a facility for urination exclusively for males.
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43. Tax dollars have b
ee
n, and are b
ei
ng spent, by the City and County
of
San Francisco,
and at
th
e direction
of
the Recreation and Parks General
Mana
ger
on
the above-described activities
which violate rights to equal protection for Plaintiffs, their members, and the residents of San
Francisco.
44.
Defendants have utilized employees of the City
and
County of
San
Francisco, includi
the Recreation and Parks Department in carrying out the installation and continued maintenance of t
sso ir in violation of Plaintiffs rights and against public pol icy.
45.
Th
e expenditure
of
taxpayer funds for the acts described above is an illega l expenditu
of, waste of, or injury to the estate, funds,
or
other property of the City and County of San Francisco
Thus, Petitioners bring this action under CCP §526a to obtain a
jud
gment to restrain a
nd
preve
nt
the
illega l expenditure of, waste of,
or
injury
to
, the estate, funds,
or
other property of the City
and
Coun
of San Francisco.
46. Absent relief from this Court, Defendants will continue to engage in conduct in
contravention to the rig
ht
s of equal protection, and by extension, public policy, as found in the U.S.
California Constitutions as
we
ll as local codes.
47.
Plaintiffs make this request for injunctive relief based upon their standing as taxpayer
pursuant to CCP §526a.
48. In addition, there is a disagreem
en
t between the parties as to whether
open airpissoir
discriminate against
women
a
nd
girls and are against public policy. Defendants believe that use of
open-air pissoirs which entail urinat ion in public vi
ew
is not discriminatory as to females or against
public policy. Plaintiffs disagree.
49. Plaintiffs are informed and believe and thereon allege that Defendants will further sp
tax dollars on the
in
stallmen t and maintenance of other
pissoirs
within the jurisdiction of the City an
County of San Francisco. Absent declaratory relief from this Comt, Defendants will continue to
maintain the
pissoir.
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50. As such Plaintiffs request declaratory relief based
upon
their standing as taxpayers .
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THIRD CAUSE OF ACTION
Violation f Public Policy Health Hygiene
The open-air place for urination has no sink with running water and soap. Providing
place to wash hands after use of the restroom is a common sanitation standard used in all fifty states
The open-air urinal is at a heavily trafficked train stop of the SFMTA. A person urinating in the hol
can walk a few yards and board a train with unwashed hands. Such subjects the community to germ
and disease.
52. Ce1iain
San
Francisco officials attempt to justify the open-air urination hole
above
th
sewer by pointing to other countries that have different - and indeed lower - expectations for hygie
13 than the United States. The trajectory for American society is to take reasonable steps to increase
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sanitation and cleanliness. Indeed in California instruction on the impottance of hand washing is p
of school curriculum. Health Education Standards
or
California Public Schools: Kindergarten
Through Grade Twelve Standards 1.1.P and
7
2.P. Moreover the concept
of hand
washing -
including after use of the restroom - is routinely taught in preschool in this country. For most home
children
are taught
basic sanitation
by
their parents before they are old
enough
to enter
such
schools
53.
Put simply the open hole place for urination is inconsistent with public health policy
21
relation to hygiene.
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54.
Tax dollars have been and are being spent by the City and County of San Francisco
and at the direction
of
the Recreation
and
Parks General Manager
on
the above-described activities
which are against public policy relative to health and hygiene.
55. Defendants hav
e utilized employees of the City and County
of
San Francisco includi
the Recreation
and
Parks Department in can-ying out the installation and continued maintenance of t
pissoir. Such is against public policy.
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56. The expenditure of taxpayer funds for the acts described above is an illegal expenditu
of, waste of,
or
injury to the estate, funds,
or
other property of the City and County of San Francisco
Thus Petitioners bring this action under
CCP
§526a to obtain a
judgment
to restrain and
prevent
the
illegal expenditure of, waste of,
or
injury to,
the
estate, funds,
or
other property
of
the City
and
Coun
of San Francisco.
57.
Absent rel ief from this Court, Defendants will continue to engage
in
conduct in
contravention to public health policy.
58.
Plaintiffs
make
this request for injunctive relief based upon their standing
as
taxpaye
r
pursuant
to
CCP
§526a.
59.
In addition, there is a disagreement between the parties as to whether open-airp;ssoir
are against public policy relative to heal th and hygiene. Defendants believe that use
of
open-air
pissoirs which entail public urination without amenities for washing hands is not against public polic
related to health and hygiene. Plaintiffs disagree.
60. Plaintiffs are informed and believe and thereon allege that Defendants will further spe
tax dollars
on
the installment
and
maintenance
of
other
pissoirs
within the jurisdiction
of
the City
an
County of San Francisco. Absent declaratory relief from this Court, Defendants wi
ll
continue to
maintain the pissoir
61.
As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
FOURTH CAUSE OF ACTION
Violation Of Public Policy - Title II
of
the Americans with Disabilities Act
of
1990
42 U.S.C. § 12101 t seq
62 .
Title II
of
the
ADA
provides in pe11inent pal1: [N]o qualified individual with a
disability shall, by reason
of
such disability, be excluded from participation in or be denied the benef
of the services, programs, or activities of a public entity,
or
be subjected to discrimination by any su
entity. 42 U.S.C.
§
12132.
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63. At all times relevant to this action, the Recreation and Parks Department of the City a
County of San Francisco was and is a public entit
y
within the meaning of Title II
of
the ADA and
provides a pedestrian right of way program, service, or activity to the general public.
64. Defendants are mandated to operate
each
service, program, or act ivity
so
that, when
viewed in its entirety, it is readily accessible to and useable by individuals with disabilities. 28 C.F.R
35.150;
see
also 28 C.F.R. § 35.149. This requirement applies to all programs, services, and activities t
a public entity offers, whether
or
not they are carried out in facilities that have been constructed
or
alter
since January 26, 1992. The p sso r was installed after 199
2
65.
The regulations implementing Title II
of
the ADA provide that a public entity must
11
maintain the features of all facilities required to be accessible by the ADA. 28 C.F.R. § 35.133.
12
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66.
Defendants have constructed, altered, or repaired parts of these facilities within the
meaning of the ADAAG and the UFAS, and that Defendants, through its administrative methods,
policies, and practices, have failed to make the Dolores arkp sso r readily accessible to and usable
persons with disabilities as required under federal accessibility standards and guidelines.
67. Since March 15, 2012, Defendants have constructed, altered,
or
repaired pa1ts
of
thes
facilities within the meaning
of
the ADAAG and the UFAS, and that Defendants, through their
administrative methods, policies, and practices, have failed to make such facilities compliant with the
ADAAG and the UFAS as updated in 2010, as required under 28 C.F.R. § 35.15l(c)(5).
68.
The 2010 ADA Standards for Accessible Design (2010 Standards) specify the
requirements for compliance under the above.
69. Section 605 .2 of the 2010 Standards specifies that, Urinals shall be the stall-type or the
wall-hung type with the rim 17 inches (430 mm) maximum above the finish floor or ground. Urinals sha
be
13
1/2 inches (345 mm) deep minimum measured from the outer face of the urinal rim to the back of
the fixture.
70.
Per section 405.2 of the 2010 Standards, Ramp runs shall have a running slope not stee
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than 1:12. t should be noted that In existing sites, buildings, and facilities, ramps shall be permitted t
have running slopes steeper than
1:
12 complying with Table 405.2 where such slopes are necessary due
space limitations. Id However a slope greater than 1 8 is not permitted even under this potential
exception.
Id
71.
Under section 405.8 of the 2010 Standards, Ramp runs with a rise greater than 6 inche
(150 mm) shall have handrails complying with 505.
72 . Additionally, per section 505.3 of the 2010 Standards, Handrails shall be continuous
within the full length of each stair flight or ramp run. Inside handrails on switchback or dogleg stairs an
ramps shall be continuous between fli ghts or rnns.
73.
Plaintiffs are informed, be
li
eve, and thereon allege th
at
Defendants a
nd
their agents a
employees have violated and continue to violate Title of the ADA by fai ling to construct and
maintain the Mission Dolores Pa
rk
pissoir in an accessible manner.
74.
Defendants and their agent
s and employees have violated and continue to violate Title
the ADA by failing to timely respond to and remedy complaints regarding the lack of accessibility of h
Mission Dolores Park
pissoir
75.
Tax dollars have b
ee
n, and are being spent, by the City and County of San Francisco,
19 and at
th
e direction of the Recreation and Parks General Manager on
th
e above-described activities
20 which violate public policy to access of restroom facilities for the disabled
21
22
23
24
25
76.
Defendants have utilized employees of the City and County of San Francisco, includi
the Recreation and Parks Department, in carrying out the installation and continued maintenance of
pissoir Such is
ag
ainst public policy and in violation of Plaintiffs rights.
77.
The expenditure of taxpayer funds for the acts described above is an ille
ga
l expenditu
26
of, waste of, or injury to the estate, funds,
or
other property of the City and County
of
San Francisco
27 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
28 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and Coun
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of San Francisco.
78.
Absent relief from this Court, Defendants will continue to engage in conduct in
contravention to access for citizens with disabilities to restroom facilities.
79. Plaintiffs make this request for injunctive
relief
based
upon
their standing
as
taxpayer
5 pursuant to CCP §526a.
6
7
8
9
10
12
13
14
5
16
17
8
19
20
2
22
23
24
25
26
27
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80.
In addition, there is a disagreement between the parties as to whether open-air pissoir
violate disability rights and are against public policy to provide access to restroom facilities for pers
with disabilities. Defendants believe that pissoirs are consistent with access to restroom facilities fo
persons with disabilities. Plaintiffs disagree .
81. Plaintiffs
are
informed and believe and thereon allege that Defendants
will fmther
spe
tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City an
County
of
San Francisco. Absent declaratory
relief
from this Court, Defendants will continue to
maintain the pissoir
82. As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers.
FIFTH
CAUSE
OF ACTION
Violation
Of
Public Policy - Section 504 of
the
Rehabilitation
Act
of 1973
29 U.S.C.
§
794
t
seq
83. Section 504 of the Rehabilitation Act of 1973 provides in pe11inent pait: [N]o otherwis
qualified individual with a disability shall, solely by reason of her or his disability, be excluded from
pmticipation in, be denied the benefits of, or be subjected to discrimination under any program
or
activi
receiving federal financial assistance .
29 U.S.C. § 794(a).
84.
Plaintiffs are otherwise qualified to participate in
the
services, programs,
or
activities t
are provided by the Recreation and Parks Department of the city and County of San Francisco at
Dolores Park.
ee
29 U.S.C. § 794(b).
85.
The Recreation and Parks Depaitment of the City and County of San Francisco is a
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direct recipient
of
federal financial assistance sufficient to invoke the coverage
of
Section 504, and has
received such federal financia l assistance at all times relevant to the claims asserted in this Complaint.
86.
Defendants and their agents and employees have violated and continue to violate the
Rehabilitation Act and the regulations promulgated thereunder by excluding the persons with disabilitie
from participation in, denying persons with disabilities the benefits
of
, and subjecting persons with
disabilities, based solely by reason of their disabi lities to, discrimination in the benefits and services
offered by the Recreation and Parks Department
of
the City and County
of
San Francisco at Mission
Dolores Park and for the reasons set forth above.
87.
s
a direct and proximate result
of
the aforementioned acts, disabled citizens
of San
Francisco, including persons that the San Francisco Chinese Christian Union and its members care f
suffered and continue to suffer difficulty, hardship , isolation, and segregation due to Defendants
failure to remediate the accessibility at the
pissoir
in Dolores Park. These failures have denied
Plaintiffs the full , equal, and meaningful access to the
pissoir
that Section 504 requires.
88. Because Defendants discriminatory conduct presents a real and immediate threat
of
cunent
and
con
tinuing violations, declarato1y and injunctive
relief
are appropriate remedies.
89.
Tax dollars have been, and are being spent, by the City and County
of
San Francisco ,
19 and at the direction of the Recreation and Parks General Manager on the above-described activities
20 which violate the rights of residents of San Francisco with disabilities.
21
22
23
24
25
90.
Defendants have utilized employees of the City and County
of
San Francisco, includi
the Recreation and Parks Department, in
canying
out the installation and continued maintenance
of
t
pissoir Such is against public policy.
91.
The expenditure
of
taxpayer funds for the acts described above is an illegal expenditu
26
of, waste of, or injury to the estate, funds, or other property
of
the City and County of San Francisco.
27 Thus, Plaintiffs bring this action under CCP §526a to obtain a judgment to restrain and prevent the
28 illegal expenditure of, waste of,
or
injury to, the estate, funds,
or
other property
of
the City
and
Coun
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of San
Francisco.
92. Plaintiffs
are informed and
believe and
thereon
allege that Defendants will further
spe
3
tax
dollars on the installment and
maintenance
of other p sso rs
within
the jurisdiction of the
City
an
4
County
of
San Francisco.
Absent relief from
this Court, Defendants will continue
to engage
in
cond
5 in contravention to access
for
citizen with disabilities
to
restroom facilities.
6
7
8
9
1
11
12
13
14
15
16
17
18
19
2
93. Plaintiffs
make
this request for injunctive
relief based upon
their standing as taxpayer
pursuant to
CCP
§526a.
94.
In
addition, there is a disagreement between the parties
as
to
whether
open-air
p sso r
violate disability rights and
are against
public policy to provide access
to
restroom facilities for perso
with
disabilities. Defendants believe that
p sso rs
are consistent with access
to
restroom facilities fo
persons with disabilities. Plaintiffs disagree.
95.
As
such, Plaintiffs
request
declaratmy
relief
based
upon
their standing as taxpayers.
SIXTH CAUSE OF ACTION
Violation f Public Policy Unruh Civil Rights Act
96. Defendants operates Mission Dolores Park within the jurisd iction of the State of
California and, as such, is obligated
to comply
with
the
provisions of
the Unruh
Act, Cal. Civ.
Code
,
51,
et
seq. ( the Unruh Act ).
97.
The
conduct alleged herein violates
the Unruh
Act, including Cal. Civ.
Code
, § 51,
et
2 1 seq.
22
23
24
25
6
27
98.
The
Unruh Act guarantees, inter alia,
that
persons
with
disabilities
are
entitled to full
equal accommodations, advantages, facilities, privileges, or services in all business establishments o
every
kind whatsoever within
the jurisdiction
of the State of California. The Unruh Act
also
provides
that a violation
of the ADA
is a violation
of the
Unruh Act.
99.
Defendants have violated
the
Unruh
Act
by , inter alia, denying persons
with
disabiliti
28 full and equal accommodations, advantages, facilities, privileges, or services offered by Defendants.
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Defendants have also violated the Unruh Act by violating the ADA, as set fotth above.
100.
Defendants have violated the Unruh Act by, inter alia, failing to operate its services o
nondiscriminatory basis and failing to ensure that persons with disabilities have nondiscriminatory
access to the Mission Dolores Park
pissoir
101. In doing the acts and/or omissions alleged herein, Defendants wrongfully and unlawfu
denied access to its facility to persons with disabilities and acted with knowledge of the effect its
conduct was having on persons with physical disabilities.
I 02.
ax
dollars have been, and are being spent, by the City and County of San Francisco,
and at the direction of the Recreation and Parks General Manager on the above-described activities
which violate the disability rights of Plaintiffs, their members, and the residents of San Francisco.
103. Defendants have utilized employees of he City and County of San Francisco, includi
the Recreation and Parks Department, in carrying out the installation and continued maintenance of t
pissoir Such is against public policy and in violation of Plaintiffs rights.
104. The expenditure of taxpayer funds for the acts described above
is
an illegal expenditu
of
, waste of,
or
injury to the estate, funds,
or
other property
of
the City and County
of
San Francisco.
Thus, Petitioners bring this action under CCP §526a
to
obtain a judgment to restrain and prevent the
illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and Coun
of
San Francisco.
I 05. Plaintiffs are informed and believe and thereon allege that Defendants will fmther spe
tax dollars on the installment and maintenance ofother pissoirs within the jurisdiction of the City an
County of San Francisco. Absent relief from this Court, Defendants will continue to engage in condu
in contravention to access for citizens with disabilities to restroom facilities.
106. Plaintiffs make this request for injunctive relief based upon their standing as taxpayer
27 pursuant to CCP §526a.
28
107.
In addition, there is a disagreement between the parties as to whether open-airpissoirs
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violate disability rights and are against public policy to provide access to restroom facilities for perso
with disabilities. Defendants believe that
pissoirs
are consistent with access to restroom facilities fo
persons with disabilities.
Plaintiffs disagree.
SEVENTH CAUSE
OF
ACTION
Violation Of Public Policy - Construction Noncompliant
With Plumbing
Code
108.
A public restroom must meet all California codes and fixture requirements. The
pisso
does not meet such codes and fixture requirements for its intended use. This includes California Hea
and Safety Code Section 17921.4 and sections 402.3 3 and 402.3 .4 of the 2010 California Plumbing
Code.
109. Tax dollars have been and are being spent by the City and Cow1ty
of
San Francisco
and at the direction of the Recreation and Parks General Manager
on
the installation and maintenanc
of the
pissoir
110. Defendants have utilized employees of the City and County of San Franci_co includi
the Recreation and Parks Department in carrying out the installation and continued maintenance of t
pissoir
111 The expenditure of taxpayer funds for the installation and maintenance of restroom
facilities that are noncompliant with California laws related to plumbing is an illegal expenditure of
waste of or injury to the estate funds or other property of the City and
Co
unty of San Francisco.
Thus Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
illegal expenditure of waste of
or
injury to the estate funds or other property of the City and Coun
of San Francisco.
112. Plaintiffs are informed and believe and thereon allege that Defendants will further spe
26
tax dollars on the installment and maintenance
of
other
pissoirs
within the jurisdiction
of
the City and
27 County
of
San Francisco. Absent rel ief from this Court Defendants will continue to engage in condu
28 in contravention to plumbing codes.
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113. Plaintiffs make this request for injunctive relief based upon their standing as taxpayer
pursuant to CCP §526a.
114
In addition, there is a disagreement be tween the pai1ies as to whether open-air
pissoir
are compliant with plumbing codes. Defendants believe that pissoirs
are
consistent
with such
codes,
in the alternative, that the City and County of San Francisco is not required to comply with the law
related to the plumbing codes for a
pissoir
Plaintiffs disagree.
115. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
EIGTH C USE OF CTION
Violation
Of
Public
Policy
Enabling Of Public Nuisance
116.
The installation of the
pissoir
creates the conditions for a public nuisance.
117. Enabl ing public urination at the
pissoir
- pai1icularly without amenities for the washin
of hands - is injurious to health.
118.
Enabling public urination a t the
pissoir
promotes conduct which is indecent.
119. Enabling public urinat ion at the
pissoir
is offensive to the senses.
120. Tax dollars have been, and
are
being spent,
by
the City
and County
of
San
Francisco,
and
at
the direction of the Recreation and Parks General Manager on the above-described activities
which create the conditions for a public nuisance.
121.
Defendants have utilized employees of the City and County of San Francisco, includin
the Recreation and Parks Department, in carrying out the installation and continued maintenance of t
pissoir
Such is against public policy.
122.
The
expenditure of axpayer funds for the acts described above is an illegal expenditu
of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco.
Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
illegal expenditure of, waste of, or injury to, the estate, funds, or other property of he City and Coun
of San Francisco.
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123. Absent relief from this Court, Defendants will continue to engage in conduct which
creates the conditions for a public nuisance and is thus against public polic
y
124. Plaintiffs make this request for injunctive reli
ef
based upon their standing as taxpayers
pursuant to CCP §526a.
125 . Plaintiffs are informed and believe and thereon allege that Defendants will further spe
tax dollars on the installment and maintenance of other
pissoirs
within the jurisdiction of the City and
County of San Francisco. Absent declaratory relief from this Court, Defendants
wi
ll continue to
maintain the
pissoir
126.
In addition, there is a disagreement between the parties
as to
whether open-air
pissoirs
create the conditions, and enable, a public nuisance as against public policy. Defendants believe that
use
of
open-air
pissoirs
neither creates the conditions for, nor enables, a pub
li
c nuisance. Plaintiffs
disagree.
127.
As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
PR YER
WHEREFORE, Plaintiffs prays
fo
r reliefs as follows:
a
An order, pursuant to CCP §526a, enjoining the continued unlawful and wasteful
expenditure of tax dollars on maintaining, and holding open for use to the public, the
pissoir;
b.
n
order, pursuant to CCP §526a, enjoining future installations and maintenance of
pissoirs
within the jurisdiction
of
the City and County
of
San Francisco;
c. An order, pursuant to CCP §526a, declaring that the
pissoir
violates
pr
ivacy;
d
An order, pursuant to CCP §52
a
, declaring that the installation and maintenance
of
th
pissoir
constitutes unlawful sex-based discrimination;
e
An
order, pursuant to CCP §526a, declaring that the installation and maintenance of th
pissoir
violates public policy related to public health and hygiene;
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f.
n order, pursuant to CCP §526a, declaring that the installation and maintenance of the
p sso r violates public policy related to compliance with California and Federal
Disability Laws;
g
An order, pursuant to CCP §526a, declaring that the
in
stallation and maintenance
of
the
p sso r violates public policy related to the requirement that construction
of
restroom
facilities comply with the Plumbing Code;
h n
order, pursuant to CCP §526a, declaring that the installation and maintenance of the
p sso r
violates public policy by creating a public nuisance;
1. Attorneys fees pursuant to CCP §1021.5 or any other applicable law;
j . Costs;
k. Such other and fmther relief as the court deems just and proper.
Dated: April 12 , 2016
Kevin T. Snider, Attorney for Plaintiffs
PACIFIC JUSTICE INSTITUTE
P.O. Box 276600
Sacramento, C 95827
Tel.: 916) 857-6900
Fax: 916) 857-6902
E-mail: [email protected]
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CM-010
AT
TO RNEY
OR
PARTY MHIOUT
A IOR NEY
Nome, State Bar numbor,
and
a
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SUMMONS
CITACION JUDICIAL)
NOTICE TO DEFENDANT:
AV/SO L DEMANDADO):
City and County
of
San Francisco Philip Alan Ginsburg General
Manager Recreation and Parks Department in his official capacity
YOU ARE BEING SUED BY PLAINTIFF:
LO ESTA DEMANDANDO EL DEMANDANTE):
San Francisco Chinese Christian Union Richard Lam Peggy Lam
Patrick Sullivan Sylvia Terpstra
SUM-1 00
FOR COURT USE ONLY
(SOLO PARA USO
DE
LA CORTE)
_,.
C
;;Q
-
-
.
f 1 \
O
( )
/l
o
c::
0 0
\
v
NOTICE You have been sued. The court may decide against you without your being heard un less you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo .ca.gov/se/fhelp ), your county law library, or the courthouse nearest you . If you cannot pay the fil ing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other legal requirements. You may want to call
an
attorney right away.
If
you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the Cali fornia Legal Services
Web
site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center
www.courtinfo.ca.
gov
/se/fhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on
any
settlement
or
arbitration award
of
$10,000
or
more in a civil case . The court's li
en
must be paid before the court will dismiss the case.
1AVISOI Lohan demandado. Si no responde dentro de
30
dias, la corte puede decidir en
su
contra sin escuchar su version. Lea la informaci6n a
continuaci6n.
Tiene 30 DIAS
DE
CALENDARIO despues
de
que le entreguen esta citaci6n y pape/es /ega/es para presentar una respues/a por escrito en es/a
corte y /1acer que se entregue una copia al demandante. Una carta o una llamada telef6nica no lo protegen. Su respues/a por escrito tiene que es/ar
en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formu/ario que usted pueda
usar
para
su
respues/a.
Puede encontrar estos formularios de la corte y mas informaci6n en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
biblioteca
de
/eyes de su condado
o
en la corte que le quede mas cerca. Si no puede pagar a cuota de presentaci6n, pida
al
secretario
de
la corte
que le de un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder
el
caso por incumplimiento y la corte le
podra quitarsu sue/do, dinero y bienes sin mas advertencia.
Hay
o/ros requisi/os /ega/es. Es recomendab/e que llame a un abogado inmedia/amente. Si no conoce a un abogado, puede llamar a un servicio de
remisi6n a abogados. Si no puede pagar a un abogado,
es
posible que cumpla con los requisitos para obtener servicios /ega/es gratuit
os
de un
programa de servicios legales sin fines de /ucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services,
(www.lawhelpcal ifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en con/ac/o con la corte o el
co/egio de abogados locales. A VISO: Por fey, la corte tiene derecho a rec/amar las cuo/as y os costos exentos por mponer un gravamen sobre
cualquier recuperaci6n de 10,000 6 mas de valor recibida med/ante un acuerdo o una concesi6n de arbitraje en un c
aso
de derecho civil. Tiene que
pagar
el gravamen de la corte antes de que la corte
pueda
desechar el caso.
The name and address
of
the court i
s:
(El nombre y direcci6n de
la
carte es):
San Francisco County Superior
Comt
400 McAllister St.
San Francisco CA 94102-4515
DATE:jApril 2016 l ~ ~ U T Y C ~ Clerk, by P . t \ \ ~ t \ , 1 A N llf
(Fecha Uc u:n (Secretario)
, Deputy
(Adjunto)
For
proof of service
of
his summons, use Proof of Service of Summons (form POS-010).)
(Para prueba de entrega
de
esta citati6n use el formulario Proof of Service of Summons, (POS-010)).
SEAL]
Form Adopted for Mandatory Use
Judi
ci
al Council of C
al
i
fornia
NOTICE
TO THE
PERSON SERVED:
You are served
1 D
as
an individual defendant.
2.
c J
as the person sued under the fictitious name
of
(specify):
3 D
on behalf of (specify):
under: D CCP 416.10 (corporation)
D
CCP 416.20 (defunct corporation)
D
CCP 416.40 (association or partnership)
D
other (specify}:
4. D by personal delivery on (date):
SUMMONS
D
D
D
CCP
416.60 (minor)
CCP 416. 70 (conservatee)
CCP 416.90 (authorized person)
Pa o o f
Codo of Civil Procedu re§§ 4 2.20 4
65
v.
co
urtinfo.ca.gov