Abiding Place Ministries v. Newsom

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ABIDING PLACE MINISTRIES, a Case No.: 3:21-cv-00518-RBM-DDL

Church,

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ORDER GRANTING IN PART AND

Plaintiff,

13 DENYING IN PART COUNTY

v. DEFENDANTS’ MOTION TO

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DISMISS

GAVIN NEWSOM, in his individual

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capacity; et al.,

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Defendants.

17 [Doc. 22]

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On May 28, 2021, Plaintiff Abiding Place Ministries (“Plaintiff”) filed their First

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Amended Complaint (Doc. 13) (“FAC”), naming Gavin Newsom, Xavier Becerra, Sonia

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Y. Angell, Wilma J. Wooten, County of San Diego (“County”), and Does 1 through 100

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as defendants. Aside from the County, all Defendants1 have been named in their individual

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1 The Court notes that the header of each cause of action within the FAC contains a

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parenthetical that each claim is directed “Against All Defendants In Their Individual

26 Capacity Only.” (FAC at 14-20.) Although the header omits reference to the County, the

Court will construe this omission as an error in light of the parties’ briefing on the motion

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to dismiss.

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1 capacities. On August 30, 2021, Defendants Wilma J. Wooten (“Wooten”) and the

2 County of San Diego (collectively “County Defendants”) filed a Motion to Dismiss

3 Plaintiff’s FAC for failure to state a claim upon which relief can be granted pursuant to

4 Federal Rule of Civil Procedure 12(b)(6) (“Motion”). (Doc. 22.). The County Defendants

5 filed a Request for Judicial Notice accompanying their motion to dismiss, which the Court

6 will address herein. (Doc 22-2.) On August 30, 2021, Defendants Gavin Newsom, Xavier

7 Becerra, and Sonia Y. Angell (“State Defendants”), in their individual capacities, filed a

8 Motion to Dismiss Plaintiff’s FAC. (Doc. 21.) On October 18, 2021, Plaintiff filed a

9 combined response in opposition to the State Defendants’ Motion and the County

10 Defendants’ Motion. (Doc. 25.) The County Defendants filed a reply on November 15,

11 2021. (Doc. 27.) For the reasons outlined below, the County Defendants’ Motion to

12 Dismiss is GRANTED IN PART and DENIED IN PART.

13 I. BACKGROUND

14 A. Factual Background

15 On March 4, 2020, Governor of California Gavin Newsom declared a State of

16 Emergency in response to the threat of COVID-19. (FAC ¶ 18.) On March 19, 2020,

17 Governor Newsom issued Executive Order N-33-20, also known as the “Stay at Home

18 Order” (herein “State Order”). (Id. at ¶ 19.) This State Order required that all Californians

19 stay home or at their place of residence except as needed to “maintain the continuity of

20 operations of the federal critical infrastructure sectors[.]” (Id. at ¶ 19.) It further provided

21 that all Californians “must have access to such necessities as food, prescriptions, and health

22 care” and therefore “may leave their homes or places of residence to obtain or perform

23 [these] functions . . . or to otherwise facilitate authorized necessary activities[.]” (Id. at ¶

24 20.) On March 22, 2020, the State published a list of “Essential Critical Infrastructure

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2 Plaintiff’s original complaint filed on March 24, 2021, did not name Wooten as a

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defendant.

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1 Workers” naming “faith-based services that are provided through streaming and other

2 technology” as one of the exempted essential categories. (Id. at ¶ 22.)

3 On March 27, 2020, San Diego Public Health Officer Wilma J. Wooten

4 “promulgated an order prohibiting gatherings of more than ten persons . . . subject to all

5 the same exemptions as the State Order” (“County Order”). (Id. at ¶ 32.) On April 8, 2020,

6 Wooten revised the County Order changing the cap on gatherings from ten persons to one

7 person, effective April 9, 2020. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.)

8 Plaintiff is a church based in San Diego County, which hosts its small congregation

9 of typically fewer than 100 persons for Sunday service at their outdoor ranch venue, the

10 Mission Base. (FAC at ¶¶ 23, 25.) “Because of the pandemic and the closure Orders, the

11 Church met outdoors—at the Mission Base—for worship on March 22, 2020. The

12 following week, March 29, the Church met under a large open-air tent at the Mission Base

13 . . .” (Id. at ¶ 30.) Plaintiff claims they interpreted the State Order describing “faith-based

14 services” as essential to “exempt it from the business closures” and they “believed that its

15 members were permitted to leave their home when necessary.” (Id. at ¶ 31.) The FAC

16 alleges it was not until March 29, 2020 when a San Diego Sheriff’s Deputy visited the

17 Church’s service, and early April, when meeting with County Sheriff officials, that the

18 Church became aware they could not congregate outdoors due to the State and County

19 Orders. (Id. at ¶¶ 33-35.)

20 On April 2, 2020, Plaintiff, through their attorney, Jeremiah Graham, and pastor,

21 Mark Spitsbergen, proposed multiple mitigation protocols to the San Diego County

22 Sheriff’s Department “to avoid conflict with the County’s restrictions while maintaining

23 in-person gatherings” including offering drive-in services. (Id. at ¶¶ 36-37; Doc. 13-1, Ex.

24 A at 1-10.) On April 4, 2020, Wooten wrote a letter informing Plaintiff that its members

25 “must stay at home and not congregate.” (FAC at ¶ 38; Doc. 13-2, Ex. B at 2-3.) Plaintiff

26 then proposed additional mitigation protocols, which were rejected by an April 8, 2020

27 letter from Wooten. (Id. at ¶¶ 39-41; Doc. 13-3, Ex. C at 2-26.) Wooten’s letter to Plaintiff

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1 stated, “[m]embers of your congregation are not allowed to travel to your site. This would

2 be an unlawful gathering, even if they remain in their vehicles as they did last Sunday.”

3 (Id. at ¶ 42; Doc. 13-3, Ex. C at 16-17.) It further advised “[i]f the members of your

4 congregation do not abide by my Order, the Sheriff will take actions necessary to enforce

5 the Order.” (Id. at ¶ 42; Doc. 13-3, Ex. C at 16-17.) Consequentially, Plaintiff did not

6 congregate in person on April 12 and April 19, 2020. (Id. at ¶¶ 45-47.) On April 18, 2020,

7 Plaintiff became aware of a statement made by State officials clarifying that “drive-in

8 services were now permissible” under the State Order. (Id. at ¶ 46.) On April 20, 2020,

9 the County entered its “Supplemental Status Update” authorizing drive-in worship services

10 which adopted the Governor’s interpretation of the State Order by allowing drive-in

11 services. (Id. at ¶¶ 48-49.)

12 B. Procedural Background

13 On May 28, 2021, Plaintiff’s FAC named Wooten in her individual capacity only.

14 The FAC is a revival of an earlier filed case filed in this District, Abiding Place Ministries

15 v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG, which was voluntarily dismissed

16 without prejudice “after the Defendants modified their COVID-19 policies prohibiting

17 houses of worship from holding in-person gatherings,” thus rendering the lawsuit moot.3

18 (FAC at ¶ 2); see also Case No. 3:20-cv-00683-BAS-AHG, Docs. 58, 66-67.4 The FAC

19 here asserts six claims for relief, including violations of the Free Exercise Clause of the

20 First Amendment, Establishment Clause of the First Amendment, Free Speech Clause of

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3 U.S. District Judge Cynthia Bashant denied Plaintiff’s application for a temporary

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restraining order and denied Plaintiff’s motion for preliminary injunction seeking to enjoin

24 enforcement of orders restricting Plaintiff’s engagement in religious services. See Case

No. 3:20-cv-00683-BAS-AHG, Docs. 2, 7-8, 10, 24, 58.

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4 The prior case originally named Wooten in her official capacity as Public Health Officer

26 for San Diego County, but Abiding Place subsequently amended the complaint and did not

name Wooten as a defendant. See Abiding Place Ministries, Case No. 3:20-cv-00683-

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BAS-AHG, Docs. 1, 22, 60.

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1 the First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process

2 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth

3 Amendment. (FAC at 14-21.) Plaintiff seeks relief only in the form of nominal damages

4 plus attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988. (FAC at ¶¶ 2-4.)

5 The County Defendants argue three separate grounds for dismissal: (1) Wooten is

6 entitled to qualified immunity; (2) the County Defendants cannot be held liable under 42

7 U.S.C. § 1983 (“Section 1983”) for enforcing a State Order; (3) the County is entitled to

8 Eleventh Amendment immunity; and (4) Plaintiff’s second, third, fourth, and fifth causes

9 of action fail to state a claim for relief under Rule 12(b)(6). (Doc. 22-1.) Plaintiff contends

10 qualified immunity should not extend to Wooten, the County is not entitled to Eleventh

11 Amendment immunity, and Plaintiff has pled sufficient facts to support all six causes of

12 action asserted in the FAC. (Doc. 25 at 5-16.)

13 II. REQUEST FOR JUDICIAL NOTICE

14 The Court first addresses the County Defendants’ request for judicial notice which

15 accompanied its motion to dismiss. (Doc 22-2 at 1.)

16 A court generally cannot consider materials outside the pleadings on a motion to

17 dismiss for failure to state a claim. FED. R. CIV. P. 12(d). A court may, however, consider

18 materials subject to judicial notice without converting the motion to dismiss into one for

19 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Under Federal

20 Rule of Evidence 201(b), a court may take judicial notice, either on its own accord or by a

21 party’s request, of facts that are not subject to reasonable dispute because they are (1)

22 “generally known within the trial court’s territorial jurisdiction; or (2) can be accurately

23 and readily determined from sources whose accuracy cannot reasonably be questioned.”

24 FED. R. EVID. 201(b). A court may take judicial notice of court filings, other matters of

25 public record, and documents that are readily verifiable, including public records and

26 government documents available from reliable sources on the internet, such as websites

27 run by governmental agencies. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d

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1 741, 746 n.6 (9th Cir. 2006); see U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d

2 1362, 1381 (C.D. Cal. 2014), aff’d sub nom. United States v. DJO Glob., Inc., 678 F. App’x

3 594 (9th Cir. 2017) (“the court can take judicial notice of [p]ublic records and government

4 documents available from reliable sources on the Internet, such as websites run by

5 governmental agencies”) (internal quotations omitted); see also Hansen Beverage Co. v.

6 Innovation Ventures, LLC, No. 08-CV-1166-IEG POR, 2009 WL 6597891, at *2 (S.D. Cal.

7 Dec. 23, 2009) (“[i]nformation on government agency websites has often been treated as

8 properly subject to judicial notice”). A court may also take judicial notice of publications

9 introduced “to indicate what was in the public realm at the time, not whether the contents

10 of those articles were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena,

11 592 F.3d 954, 960 (9th Cir. 2010).

12 The County Defendants request the Court take judicial notice of nineteen exhibits,

13 including the hearing transcript denying Abiding Place’s application for temporary

14 restraining order (“TRO”) and other filings in the predecessor case5 (Exhibits 1, 2, 12), a

15 TRO hearing transcript and TRO briefing in similar COVID-19 cases6 (Exhibits 11, 18),

16 government websites tracking COVID-19 metrics (Exhibits 3-4), Governor Newsom’s

17 Proclamation of a State of Emergency and Executive Order N-33-20 (Exhibits 5, 7),

18 President Trump’s Proclamation on Declaring a National Emergency Concerning COVID-

19 19 (Exhibit 6), California State Public Health Officer’s March 22, 2020 list of designated

20 “Essential Critical Infrastructure Workers” and its April 28, 2020 revised list (Exhibits 8,

21 13), County of San Diego Orders of the Health Officer and Emergency Regulations

22 (Exhibits 9-10, 15, 17), State of California’s COVID-19 Industry Guidance dated May 25,

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5 See Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG.

26 6 Gish v. Newsom, No. EDCV 20-755-JGB-KKx, Doc. 13 (C.D. Cal. Apr. 17, 2020); South

Bay United Pentecostal Church v. Newsom, No. 3:20-cv-00865-BAS-AHG (S.D. Cal. May

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15, 2020).

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1 2020 and June 12, 2020 (Exhibits 14, 16), and a May 7, 2020 letter from the Director of

2 the Governor’s Office of Emergency Services to the Chief Administrative Officer of Sutter

3 County (Exhibit 19). Plaintiff does not object to the request nor does it call into question

4 the credibility of the source of any material subject to the request for judicial notice. (Doc.

5 25.)

6 The government documents, information on government websites, and court filings

7 referenced above are all proper subjects of judicial notice. The Court therefore GRANTS

8 the County Defendants’ request for judicial notice.

9 III. MOTION TO DISMISS

10 A. Legal Standard

11 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be

12 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its

13 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

14 plausibility when the plaintiff pleads factual content that allows the court to draw the

15 reasonable inference that the defendant is liable for the misconduct alleged. The

16 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

17 sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678

18 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the

19 court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings

20 in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine

21 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

22 However, the Court is “not bound to accept as true a legal conclusion couched as a

23 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the

24 Court “required to accept as true allegations that contradict exhibits attached to the

25 Complaint or matters properly subject to judicial notice, or allegations that are merely

26 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v.

27 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive

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1 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from

2 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss

3 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted).

4 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend

5 even if no request to amend the pleading was made, unless it determines that the pleading

6 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N.

7 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

8 B. Analysis

9 i. Qualified Immunity

10 The County Defendants argue Plaintiff has not pleaded a violation of any clearly

11 established right, therefore, the FAC should be dismissed under the doctrine of qualified

12 immunity as to Wooten. (Doc. 22-1 at 15.)

13 Qualified immunity shields government officials from civil damages liability under

14 Section 1983 unless a plaintiff pleads facts showing “(1) that the official violated a statutory

15 or constitutional right, and (2) that the right was ‘clearly established’ at the time of the

16 challenged conduct.” See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal citation

17 omitted); Reichle v. Howards, 566 U.S. 658, 664 (2012); District of Columbia v. Wesby,

18 138 S. Ct. 577, 589 (2018). A right is “clearly established” when “at the time of the

19 challenged conduct, the contours of [the] right are sufficiently clear that every reasonable

20 official would have understood that what he is doing violates that right.” See Ashcroft, 563

21 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Morales v. Fry,

22 873 F. 3d 817, 821 (9th Cir. 2017). To show a right is clearly established, a case does not

23 need to be directly on point, but Plaintiff must show existing precedent that places the

24 statutory or constitutional question beyond debate, and the precedent must be clear enough

25 that every reasonable official would interpret it to establish the particular rule plaintiff is

26 seeking to apply. Wesby, 138 S. Ct. at 590; Ashcroft, 563 U.S. at 741.

27 The Supreme Court has repeatedly stressed that the clearly established right must be

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1 defined with specificity, and courts must not define clearly established law “at a high level

2 of generality, since doing so avoids the crucial question whether the official acted

3 reasonably in the particular circumstances that he or she faced.” Wesby, 138 S. Ct. at 590.

4 Courts must look at the specific context of the case when examining whether the violative

5 nature of defendant’s particular conduct is clearly established, and so long as no precedent

6 “squarely governs the facts” the state official is entitled to qualified immunity. Hamby v.

7 Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016). To overcome qualified immunity, the

8 plaintiff must identify clearly established law that is particularized to the facts of the case,

9 or in other words, case precedent where a defendant acting under similar circumstances

10 was held to have violated a constitutional right. White v. Pauly, 137 S. Ct. 548, 552 (2017);

11 Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (the prior case law must be

12 “controlling,” meaning from the Ninth Circuit or Supreme Court, or otherwise “be

13 embraced by a ‘consensus’ of courts outside the relevant jurisdiction.”).

14 District courts have discretion to decide which of the two prongs of the qualified

15 immunity analysis to approach first and they are encouraged to address the prongs in the

16 order that would expedite resolution of the case. Morales, 873 F. 3d at 822; Ashcroft, 563

17 U.S. at 735. The Supreme Court has stressed the importance of deciding qualified

18 immunity “at the earliest possible stage in litigation” to preserve the doctrine’s status as “a

19 true immunity from suit rather than a mere defense to liability.” Morales, 873 F. 3d at 822.

20 Here, the Court finds it appropriate to consider qualified immunity at the motion to

21 dismiss stage and it will first address the second prong of the qualified immunity analysis.

22 Morales, 873 F. 3d at 822; Ashcroft, 563 U.S. at 735.

23 As to Wooten’s alleged violations of the Free Exercise Clause of the First

24 Amendment, Establishment Clause of the First Amendment, Free Speech Clause of the

25 First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process

26 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth

27 Amendment, there was no clear precedent in March or April 2020 that would have put

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1 every reasonable official on notice that promulgating orders restricting in person religious

2 gatherings to slow the spread of the COVID-19 virus was clearly and definitively

3 unconstitutional. Plaintiff fails to cite any factually-similar precedent to suggest that its

4 prima facie case rests upon clearly established law. White, 137 S. Ct. at 552; Sharp, 871

5 F.3d at 911; Gordon v. Cty. of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (it is plaintiff’s

6 burden to show the rights allegedly violated were clearly established). Instead, Plaintiff

7 contends qualified immunity does not apply “because the right to assemble for Church is a

8 clearly established right” and “it has been clearly established that no government in this

9 nation can interfere with the free exercise of religion, show hostility to religion, or make

10 assembly a crime.” (Doc. 25 at 5, 8.) However, this ignores Supreme Court guidance to

11 avoid defining clearly established law at a “high level of generality.” See al-Kidd, 563

12 U.S. at 742; see also Gordon, 6 F.4th at 969 (stating, “[q]ualified immunity is not meant to

13 be analyzed in terms of a ‘general constitutional guarantee,’ but rather the application of

14 general constitutional principles in a particular context.”) (internal citation omitted).

15 In the spring of 2020, the contours of the Free Exercise Clause of the First

16 Amendment, Establishment Clause of the First Amendment, Free Speech Clause of the

17 First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process

18 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth

19 Amendment were not sufficiently clear as to whether the State and/or County could impose

20 restrictions on religious worship services in an effort to curtail transmission of the COVID-

21 19 virus. At a minimum, courts were guided by Jacobson v. Commonwealth of

22 Massachusetts, which held “a community has the right to protect itself against an epidemic

23 of disease which threatens the safety of its members” as the Constitution does not guarantee

24 “an absolute right in each person to be, at all times and in all circumstances, wholly freed

25 from restraint.” Jacobson, 197 U.S. 11, 27 (1905). Courts were also guided by Prince v.

26 Massachusetts which provides “[t]he right to practice religion freely does not include

27 liberty to expose the community . . . to communicable disease . . .” 321 U.S. 158, 166-167

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1 (1944). Similarly, courts that decided the issue of whether a state’s and county’s COVID-

2 19 restrictions on religious worship services violated the constitution found no likelihood

3 of success on such claims. Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv-

4 00683-BAS-AHG, Doc. 10 at 17-21 (Apr. 13, 2020) (denying temporary restraining order

5 seeking to enjoin enforcement of state and county orders restricting religious services, in

6 part, due to plaintiff’s failure to demonstrate a likelihood of success on their claims that the

7 orders violated the free exercise of religion, freedom of assembly, and Fourteenth

8 Amendment due process); Gish v. Newsom, No. EDCV20-755-JGB-KKx, 2020 WL

9 1979970 (C.D. Cal. Apr. 23, 2020) (denying temporary restraining order seeking to enjoin

10 enforcement of state and county orders restricting religious services, practices, or activities

11 on basis that plaintiff failed to demonstrate a likelihood of success on their claim that the

12 orders violated the free exercise of religion); Cross Culture Christian Ctr. v. Newsom, 445

13 F. Supp. 3d 758, (E.D. Cal. May 5, 2020) (denying temporary restraining order seeking to

14 enjoin enforcement of state and county orders restricting in-person religious services on

15 basis that plaintiff failed to demonstrate a likelihood of success on their claims that the

16 orders violated the free exercise of religion). In considering the foregoing, Wooten is

17 entitled to qualified immunity because in March and April of 2020 (i.e., the time of the

18 challenged conduct), there was no prior, factually comparable controlling precedent that

19 would have informed her that promulgating County orders restricting gatherings to reduce

20 the spread of COVID-19 violated a clearly established constitutional right “beyond

21 debate.” Wesby, 138 S. Ct. at 590; Ashcroft, 563 U.S. at 741.

22 Without any binding case precedent available at the time of the challenged conduct

23 that establishes a defendant’s restriction of religious services as a result of the pandemic

24 violates the Free Exercise Clause of the First Amendment, Establishment Clause of the

25 First Amendment, Free Speech Clause of the First Amendment, Freedom of Assembly

26 Clause of the First Amendment, Due Process Clause of the Fourteenth Amendment, and

27 Equal Protection Clause of the Fourteenth Amendment, Plaintiff cannot overcome

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1 qualified immunity. White, 137 S. Ct. at 552. Accordingly, the County Defendants’

2 motion to dismiss Plaintiff’s first, second, third, fourth, fifth, and sixth causes of action

3 against Wooten on qualified immunity grounds is GRANTED.

4 ii. County’s Enforcement of State Order

5 The County Defendants contend they cannot be held liable under Section 1983 for

6 enforcing Governor Newsom’s State Order and they “had no authority to permit activities

7 the State Order prohibited.” (Doc. 22-1 at 22-23.) Citing to Doby v. DeCrescenzo, the

8 County Defendants contend “when a county is merely enforcing state law, without

9 adopting any particular policy of its own, it cannot be held liable under the Monell line of

10 cases.” (Id. at 22 (citing DeCrescenzo, 171 F.3d 858, 868 (3d Cir. 1999), citing Monell v.

11 Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).) They contend its

12 “Public Health Orders were coextensive with the State Orders, and permitted religious

13 services to the maximum extent allowed by the State Order.” (Id. at 23.) Without citation

14 to any authority, Plaintiff counters that “[a]s to . . . relief from liability, the County is a

15 municipality, and not entitled to State immunity” and it has alleged “each Defendant was

16 an inextricable participant in depriving Plaintiff of its rights.” (Doc. 25 at 5, 10.) The

17 County Defendants argue that Plaintiff’s conclusory opposition constitutes a waiver of any

18 argument on this issue. (Doc. 27 at 3-4.) The Court, however, is inclined to address this

19 issue substantively.

20 “The Supreme Court in Monell held that municipalities may only be held liable

21 under section 1983 for constitutional violations resulting from official county policy or

22 custom.” Benavidez v. Cty. of San Diego, 993 F.3d 1134 (citing Monell, 436 U.S. at 694).

23 “The custom or policy must be a deliberate choice to follow a course of action made from

24 among various alternatives by the official or officials responsible for establishing final

25 policy with respect to the subject matter in question.” Id. (internal citations and quotations

26 omitted). The policies can include written policies, unwritten customs or practices, failure

27 to train municipal employees on avoiding certain obvious constitutional violations, “and,

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1 in rare instances, single constitutional violations are so inconsistent with constitutional

2 rights that even such a single instance indicates at least deliberate indifference of the

3 municipality.” Id. (internal citations omitted).

4 Here, Plaintiff has alleged the County “is responsible for promulgating, interpreting

5 and enforcing the Orders issued by the San Diego County Public Health Officer.” (FAC

6 at ¶ 12.) It has alleged the County’s April 8, 2020 revised Order placed “heightened

7 restrictions on non-exempt private gatherings” including changing the cap on gatherings

8 from ten persons to one person. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.) The County

9 threatened enforcement, penalties, and fines if Plaintiff did not comply with the County

10 Order. (Id. at ¶ 42.) Plaintiff alleges this action by the County “forced the Church’s

11 members to remain away from church against their will, under threat of punishment . . .”

12 (Id. at ¶ 43.) Plaintiff contends the State and County Orders and Defendants’ enforcement

13 thereof violated their rights. (Id. at ¶¶ 56, 63, 65-66, 74, 82, 90, 96.) In light of the

14 foregoing, the allegations of the FAC regarding the County’s alleged unconstitutional

15 policy is sufficient overcome the County Defendants’ argument that it cannot be liable

16 under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this

17 ground.

18 iii. Eleventh Amendment Immunity

19 The County Defendants also contend that their Orders merely incorporated

20 California’s guidelines, and thus, they were simply enforcing state law and are entitled to

21 immunity under the Eleventh Amendment. (Doc. 22-1 at 25-26.) Plaintiff contends the

22 Eleventh Amendment does not extend to counties, and the County Defendants have failed

23 to satisfy the narrow exception which applies when a county is acting as an arm of the state.

24 (Doc. 25 at 10-11.)

25 Normally, neither counties nor municipalities enjoy Eleventh Amendment

26 immunity. Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401

27 (1979) (“[T]he Court has consistently refused to construe the Amendment to afford

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1 protection to political subdivisions such as counties and municipalities, even though such

2 entities exercise a ‘slice of state power.’”). “State sovereign immunity does not extend to

3 county and municipal governments, unless state law treats them as arms of the state.” Sato

4 v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (internal citation omitted).

5 Application of “Eleventh Amendment immunity as an arm of the State . . . is determined

6 by examining five factors (known as the Mitchell factors): (1) whether a money judgment

7 would be satisfied out of state funds; (2) whether the entity performs central governmental

8 functions; (3) whether the entity may sue or be sued; (4) whether the entity has the power

9 to take property in its own name or only the name of the state; and (5) the corporate status

10 of the entity.” See Culinary Studios v. Newsom, 517 F. Supp. 3d 1042,1060 (E.D. Cal. Feb.

11 8, 2021) (citations omitted); see also Mitchell v. L.A. Cty. Cmty. Coll. Dist., 861 F.2d 198,

12 201 (9th Cir. 1988). The first factor is the most important. Culinary Studios, 517 F. Supp.

13 3d at 1060 (citations omitted). “[T]he second factor has two components: (1) whether a

14 matter is of statewide and not local concern, and (2) the extent to which the state exercises

15 centralized government control over the performance of the particular function at issue.”

16 Id. (citation omitted).

17 Consistent with other courts considering COVID-19 issues and weighing the

18 Mitchell factors, the Court declines to find the County Defendants were acting as an arm

19 of the state. See generally Culinary Studios, 517 F. Supp. 3d at 1059-61; Bols v. Newsom,

20 515 F. Supp. 3d 1120, 1133-35 (S.D. Cal. Jan. 26, 2021), reconsideration denied, No. 20-

21 CV-873-BEN-BLM, 2021 WL 1313545 (S.D. Cal. Apr. 8, 2021). As set forth Section

22 III.B.ii. supra, the County Orders were not merely “co-extensive with the State Order.”

23 Supra pp. 12-13. The FAC alleges the County’s April 8, 2020 Order placed “heightened

24 restrictions on non-exempt private gatherings” and the County threatened enforcement,

25 penalties, and fines related to its own Order. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.)

26 As such, this first Mitchell factor weighs against the County because it is disputed whether

27 a money judgment would be satisfied out of state funds. The County does not dispute that

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1 the third and fourth factors weight against it. (Doc. 22-1 at 27.) The second Mitchell factor

2 weighs in favor of the County in that it was following the State’s emergency orders. See

3 Culinary Studios, 517 F. Supp. 3d at 1060-61. As to the fifth Mitchell factor, “the Supreme

4 Court has already held that California counties have independent corporate status and are

5 not agents of the State of California.” Ray v. Cty. of Los Angeles, 935 F.3d 703, 711, n.7

6 (9th Cir. 2019) (citing Moor v. Alamda Cty., 411 U.S. 693, 719 (1973)). Weighing these

7 factors, the Court concludes that the County Defendants are not entitled to immunity under

8 the Eleventh Amendment and the County Defendants’ motion to dismiss is DENIED on

9 this ground.

10 iv. Establishment Clause

11 The County Defendants contend the FAC’s second cause of action fails to allege a

12 viable Establishment Clause claim against it because the State and County Orders had a

13 secular purpose and the orders and enforcement decisions did not endorse any religion

14 because the orders banned gatherings for all religions along with secular gatherings. (Doc.

15 22-1 at 27-28.) Plaintiff contends the State and County Orders and Defendants’ “ad hoc

16 enforcement thereof had the primary effect of inhibiting religious activity.” (Doc. 25 at

17 13.) It contends the Orders “exempted 153 categories of in-person gatherings, giving 152

18 of those favored status (no restrictions), and allowing religious gatherings only through

19 streaming or other technology.” (Doc. 25 at 13; FAC ¶¶ 22, 44.)

20 A government action violates the Establishment Clause if it lacks a secular

21 legislative purpose or endorses religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971);

22 Trunk v. City of San Diego, 629 F.3d 1099, 1106 (9th Cir. 2011) (“the Supreme Court

23 essentially has collapsed the[ ] last two prongs [of the test articulated in Lemon] to ask

24 whether the challenged governmental practice has the effect of endorsing religion.”)); but

25 see Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424-28 (2022) (criticizing the Ninth

26 Circuit’s use of the Lemon test, specifically as to the endorsement test).

27 Here, the FAC fails to allege the County Orders lacked a secular purpose. See Gish,

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1 2020 WL 1979970, at *7 (denying TRO, in part, on basis that state and county orders likely

2 did not violate the Establishment Clause). However, it alleges the County’s Orders and

3 Defendants’ enforcement “had the primary effect of inhibiting religious activity” and

4 caused “excessive government entanglement with religion.” (FAC ¶¶ 67-67.) Plaintiff

5 contends its religious services exempted from gatherings were treated differently than other

6 public gatherings. (FAC ¶¶ 17, 44-45.) At this stage of the pleadings, the County

7 Defendants’ motion to dismiss the second cause of action is DENIED.

8 v. Freedom of Speech & Freedom of Assembly

9 The County Defendants seek to dismiss Plaintiff’s third and fourth causes of action

10 premised on alleged violations of the First Amendment’s freedom of speech and freedom

11 of assembly clauses. They contend the Orders themselves are content-neutral time, place,

12 and manner regulations of speech and satisfy the test set forth in Perry Education

13 Association v. Perry Local Education Association. (Doc. 22-1 at 29 (citing Perry, 460 U.S.

14 37, 45 (1983)).) Plaintiff counters that its FAC alleges the County Defendants engaged in

15 content-based restrictions on speech and assembly, as the enforcement of the County

16 Orders depended on whether the gatherings were for religious purposes or secular

17 purposes. (Doc. 25 at 14-15.)

18 The level of scrutiny applied to restrictions on First Amendment speech and

19 assembly depends on whether the restrictions are content and viewpoint-based restrictions

20 or content-neutral time, place, and manner restrictions. Turner v. Broad. Sys., Inc. v. FCC,

21 512 U.S. 622, 642 (1994); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578

22 (1980). Content and viewpoint-based restrictions are subject to strict scrutiny while

23 content-neutral restrictions are subject to intermediate scrutiny. Reed v. Town of Gilbert,

24 576 U.S. 155, 163-64 (2015); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

25 Courts “consider whether a regulation of speech on its face draws distinctions based on the

26 message a speaker conveys.” Reed, 576 U.S. at 163 (internal quotations and citation

27 omitted).

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1 Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from

2 engaging in protected speech and assembling in person for the purpose of worship while

3 other gatherings promoting non-religious speech were permissible. (FAC ¶¶ 42-45, 73-

4 76.) Taking those allegations as true, Plaintiff has plausibly alleged claims for violations

5 of the First Amendment’s freedom of speech and freedom of assembly clauses.

6 Accordingly, the County Defendants’ motion to dismiss the third and fourth causes of

7 action is DENIED.

8 vi. Fourteenth Amendment Due Process

9 Plaintiff’s fifth cause of action alleges a violation of their substantive due process

10 rights under the Fourteenth Amendment. (FAC ¶¶ 89-94.) The County Defendants

11 contend the State and County’s Orders provided justification for the emergency restrictions

12 in light of the “emerging, once-in-a-lifetime pandemic” such that Plaintiff fails to state a

13 claim for relief. (Doc. 22-1 at 31.)

14 The Fourteenth Amendment forbids the government from depriving a person of life,

15 liberty, or property in such a way that “shocks the conscience or interferes with the rights

16 implicit in the concept of ordered liberty.” Nunez v. City of Los Angeles, 147 F.3d 867,

17 871 (9th Cir. 1998). “Where a particular Amendment ‘provides an explicit textual source

18 of constitutional protection’ against a particular sort of government behavior, ‘that

19 Amendment, not the more generalized notice of ‘substantive due process,’ must be the

20 guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting

21 Graham v. Connor, 490 U.S. 386, 395 (1989)).

22 Here, Plaintiff’s challenge to the County Orders lies within the First Amendment’s

23 Free Exercise Clause, and the County Defendants do not seek to dismiss that claim.

24 Because the Free Exercise Clause “provides an explicit textual source of constitutional

25 protection” against the type of conduct challenged by Plaintiff, that clause preempts

26 Plaintiff’s substantive due process claim. Patel v. Penman, 103 F.3d 868, 874-875 (9th

27 Cir. 1996) (citations, internal quotation marks, and brackets omitted), overruled in part on

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1 other grounds as recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir.

2 2007). Accordingly, the County Defendants’ motion to dismiss the fifth cause of action is

3 GRANTED.

4 vii. Equal Protection

5 Plaintiff’s sixth cause of action is premised upon a violation of the Fourteenth

6 Amendment’s Equal Protection Clause and the County Defendant’s alleged intentional and

7 arbitrary categorization of conduct as either “essential” or “non-essential.” (FAC ¶¶ 95-

8 102.) Plaintiff alleges the targeting of religious services warrants “heightened review” and

9 Plaintiff has alleged facts sufficient to support its claim. (Doc. 25 at 16.)

10 “The Equal Protection Clause of the Fourteenth Amendment commands that no state

11 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

12 essentially a direction that all persons similarly situated should be treated alike.” City of

13 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (internal citation omitted). An

14 equal protection claim may be established in two ways. The plaintiff may claim the

15 defendant intentionally discriminated against him or her based upon membership in a

16 protected class, which triggers strict scrutiny review of the subject law, rule, or policy.

17 George v. Grossmont Cuyamaca Cmty. Coll. Dist. Bd. of Governors, No. 22-CV-0424-

18 BAS-DDL, 2022 WL 16722357, at *10 (S.D. Cal. Nov. 4, 2022) (citing Lee v. City of L.A.,

19 250 F.3d 668, 686 (9th Cir. 2001); Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th

20 Cir. 2005); Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 307–08, 133 S.Ct. 2411, 186

21 L.Ed.2d 474 (2013)). Second, the plaintiff “may claim membership of a non-suspect

22 group” that the defendant “treated differently than similarly situated individuals, without

23 any rational basis or legitimate government purpose for doing so.” Id. (citing Vill. of

24 Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); San

25 Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 93, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)).

26 Plaintiff contends its religious services exempted from gatherings were treated

27 differently than other public gatherings. (FAC ¶¶ 17, 44-45.) The FAC states, “other

28 18

1 public gatherings were not faced with the same threat of criminal penalties nor inhibited

2 by the same arguments justifying the closure of the houses of worship.” (Id. at ¶ 44.) For

3 example, “on April 10, 2020, Defendant San Diego County endorsed and promoted various

4 mass gatherings for the purpose of paying tribute to regional first responders and medical

5 workers.” (Id.) On the other hand, “[t]he Church did not hold communal worship service

6 on April 12, 2020.” (Id. at ¶ 45.) Plaintiff contends Defendants “intentionally and

7 arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’” (Id.

8 at ¶ 99.) At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for

9 violation of the Equal Protection clause. Therefore, the County Defendants’ motion to

10 dismiss the sixth cause of action is DENIED.

11 vii. Leave to Amend

12 Neither the County Defendants nor Plaintiff address whether leave to amend should

13 be granted.

14 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend

15 even if no request to amend the pleading was made, unless it determines that the pleading

16 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N.

17 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). When

18 determining whether to grant leave to amend, courts generally consider five factors, known

19 as the Foman factors as stated by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182

20 (1962). These factors include: (1) undue delay; (2) bad faith on the part of the party seeking

21 leave to amend; (3) undue prejudice to the non-moving party; (4) futility of amendment;

22 and (5) whether the plaintiff has previously amended the complaint. Id. The Ninth Circuit

23 has held that “it is the consideration of prejudice to the opposing party that carries the

24 greatest weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

25 2003). “Absent prejudice, or a strong showing of any of the remaining Foman factors,

26 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.

27 (emphasis omitted). In Parents for Privacy v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020),

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1 ||the Ninth Circuit affirmed a district court’s denial of leave to amend on futility grounds

2 || reasoning “[t]he problem with Plaintiffs’ complaint, however, is not the sufficiency of their

3 || factual allegations” but “[rJather .. . Plaintiffs’ legal theories fail.” /d. There, “[a]mending

4 complaint [would] not change, for example, the extent of the rights that are protected.”

5

6 The parties have been litigating this COVID-19-related dispute since April 9, 2020.

7 || See Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG, Doc.

8 || 1. As noted above, this case is a revival of an earlier filed case filed in this District, where

9 || Plaintiff had the opportunity to amend its complaint three times and eventually voluntarily

10 || dismissed the case without prejudice. /d. at Docs. 1, 22, 60. In the instant case, Plaintiff

11 also had the opportunity to amend its complaint. (See Docs. 1, 13.) In light of the

12 || Court’s rulings on the County and State Defendants’ motions to dismiss granting dismissal

13 the individual defendants on qualified immunity grounds, it appears any further

14 |}amendment would be futile at this juncture. While there has been no showing of bad faith

15 undue prejudice, weighing the remaining Foman factors, the Court declines to grant

16 || further leave to amend.

17 IV. CONCLUSION

18 For the foregoing reasons, County Defendants’ motion to dismiss for failure to state

19 claim upon which relief can be granted is GRANTED IN PART and DENIED IN

20 || PART. Plaintiffs first, second, third, fourth, and sixth causes of action survive as against

21 || the County.

22 IT IS SO ORDERED.

23 || DATE: February 14, 2023

24 _ ee errr, (Altes D_

5 HON-RUTH BERMUBEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

26

27

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3:21-cv-00518-RBM-DDL