Mission Fitness Center, LLC v. Gavin Newsom

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Present: The Honorable CHRISTINA A. SNYDER

Catherine Jeang Not Present N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) - DEFENDANT ERIC GARCETTT’S MOTION

TO DISMISS (Dkt. 40, filed on March 28, 2021)

VENTURA COUNTY DEFENDANTS’ MOTION TO DISMISS

(Dkt. 42, filed on March 29, 2021)

ORANGE COUNTY DEFENDANTS’ MOTION TO DISMISS (Dkt.

43, filed on March 29, 2021)

STATE DEFENDANTS’ MOTION TO DISMISS (Dkt. 44, filed on

March 29, 2021)

DEFENDANT MICHAEL BERTELSEN’S MOTION TO DISMISS

(Dkt. 45, filed on March 29, 2021)

SANTA BARBARA COUNTY DEFENDANTS’ MOTION TO

DISMISS (Dkt. 46, filed on March 29, 2021)

LOS ANGELES COUNTY DEFENDANTS’ MOTION TO

DISMISS (Dkt. 47, filed on March 29, 2021)

The Court finds this motion appropriate for decision without oral argument. See

Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the matter is hereby taken under

submission.

I. INTRODUCTION

On October 26, 2020, plaintiffs Mission Fitness Center, LLC; California Crossfit,

LLC; Fitness First, Inc.; Rep Max Performance, LLC; SoCal Powerlifting, LLC;

Movement FX, LLC; Lyons Property Management Company, Inc.; Jayda, Inc.; KOGym,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

LLC; House of Gains Gym, Inc.; Gym & Tone It, Inc.; Grey Group, LLC: and Grassroots

Yoga, LLC (together, “plaintiffs”), brought suit in this Court against a range of state and

local government officials (detailed below). Dkt. 1. Plaintiffs challenge those officials’

various restrictions on business operations in response to the COVID-19 pandemic. Id.

In their operative Second Amended Complaint, plaintiffs allege claims for (1)

violation of the Takings Clause of the Fifth Amendment to the United States Constitution

(“Takings Clause’) (claim one): (2) violation of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution (“Due Process Clause’’) (claim two); (3)

violation of the right to liberty established by Article 1, section 1 of the California

Constitution (claim three); (4) violation of the right to liberty established by Article 1,

section 7 of the California Constitution (claim four); and (5) commandeering of private

property in violation of Cal. Gov’t Code § 8572 (claim five). Dkt. 39 (“SAC”) 4] 220—

273.

On March 28 and 29, 2021, several defendants filed motions to dismiss. Dkts. 40

(“Garcetti MTD”), 42 (“Ventura County MTD”), 43 (“Orange County MTD”), 44 (“State

MTD”), 45 (“Bertelsen MTD”), 46 (“Santa Barbara County MTD”), 47 (“L.A. County

MTD”). On April 5, 2021, plaintiffs opposed. Dkts. 49 (“Opp. to L.A. County MTD”),

50 (“Opp. to Bertelsen MTD”), 51 (Opp. to Garcetti MTD”), 52 (“Opp. to Ventura County

MTD”), 53 (‘Opp. to Orange County MTD”), 54 (“Opp. to State MTD”), 55 (“Opp. to

Santa Barbara County MTD”). And on April 12, 2021, defendants replied. Dkts. □□□□□□

Having carefully considered the parties’ arguments and submissions, the Court finds

and concludes as follows.

II. BACKGROUND

A. The Parties

Plaintiffs are California corporations or limited liability companies that operate

gyms or other fitness establishments located in the Counties of Los Angeles, Orange,

Riverside, San Bernardino, Santa Barbara, or Ventura. SAC {J 8—20.

For the purposes of clarity, defendants can be categorized by jurisdiction. Each has

been sued in his or her official capacity. At the state level, the SAC alleges claims against

defendants California Governor Gavin Newsom, former California Attorney General

Xavier Becerra, and former California Department of Public Health Director and Public

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Health Officer Sonia Angell (together, “State defendants”).'! Id. at 4. State defendants

have moved to dismiss plaintiffs’ SAC.

The SAC further alleges claims against defendant City of Los Angeles Mayor Eric

Garcetti, id., who has also moved to dismiss plaintiffs’ SAC.

The SAC alleges claims against defendants Los Angeles County Director and Public

Health Officer Barbara Ferrer; Los Angeles County Sheriff Alex Villanueva; and Los

Angeles County Supervisors Kathryn Barger, Janice Hahn, Sheila Kuehl, Mark Ridley-

Thomas (former), and Hilda Solis (together, “Los Angeles County defendants”).? Id. Los

Angeles County defendants move to dismiss plaintiffs’ SAC.

The SAC further alleges claims against defendants Orange County Director and

Public Health Officer Clayton Chau; Orange County Sheriff Don Barnes; and Orange

County Supervisors Lisa Bartlett, Doug Chaffe, Andrew Do, Michelle Steel (former), and

Donald Wagner (together, “Orange County defendants”).* Id. at 4-5. Orange County

defendants have moved to dismiss plaintiffs’ SAC.

Since the filing of this suit, Becerra and Angell were replaced in their official

capacities by Acting California Attorney General Matthew Rodriquez and Director of the

California Department of Public Health and Public Health Officer Tomas Aragon, as noted

in State defendants’ motion to dismiss. State MTD at 2. Rodriguez has in turn been

replaced by California Attorney General Rob Banta, although Banta has not been formally

substituted into the case. See State of California Department of Justice, Rob Banta

Attorney General, https://oag.ca.gov/ (last visited May 4, 2021).

? Ridley-Thomas has been replaced in his official capacity by Holly Mitchell, who

has not been formally substituted into the case. See Los Angeles County Board of

Supervisors, About Board of Supervisors, http://bos.lacounty.gov/About-Us/Board-of-

Supervisors (last visited May 4, 2021).

3 Steel has been replaced in her official capacity by Katrina Foley, who has not been

formally substituted into the case. See Orange County, Board of Supervisors,

https://board.ocgov.com/about-board (last visited May 4, 2021).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

The SAC alleges claims against defendants Ventura County Director and Public

Health Officer Robert Levin; Ventura County Sheriff William Ayub; and Ventura County

Supervisors Steve Bennett (former), Bob Huber, Kelly Long, Linda Parks, and John

Zaragoza (former) (together, “Ventura County defendants”).* Id. at 5. Ventura County

defendants also move to dismiss plaintiffs’ SAC.

The SAC alleges claims against defendants Santa Barbara County Health Officer

Henning Ansorg; Santa Barbara County Sheriff Bill Brown; and Santa Barbara County

Supervisors Peter Adam (former), Gregg Hart, Joan Hartmann, Steve Lavagnino, and Das

Williams (together, “Santa Barbara County defendants”).* Id. Santa Barbara County

defendants move to dismiss the SAC.

The SAC also alleges claims against City of Azusa Chief of Police Mike Bertelsen,

id. at 4, who has also moved to dismiss the SAC.

Finally, the SAC alleges claims against City of Irvine Chief of Police Mike Hamel,

and City of Port Hueneme Chief of Police Andrew Salinas. Id. at 4, 5. Neither Hamel nor

Salinas has filed a motion to dismiss.°

4 Bennett and Zaragoza have been replaced in their official capacities by Matt

LaVere and Carmen Ramirez, respectively, neither of whom have been formally

substituted into the case. See County of Ventura, Board of Supervisors,

https://www.ventura.org/board-of-supervisors/ (last visited May 4, 2021).

> Adam has been replaced in his official capacity by Bob Nelson, who has not been

formally substituted into the case. See Santa Barbara County, Board of Supervisors,

http://www.countyofsb.org/bos/ (Last visited May 4, 2021).

° The SAC also alleged claims against several officials from San Bernardino County:

Acting Public Health Officer Erin Gustafson; Director and Chief Executive Officer of the

Office of Emergency Services Gary McBride; Sheriff John McMahon; and Supervisors

Josie Gonzales, Curt Hagman, Robert Lovingood, Dawn Rowe, and Janice Rutherford.

SAC at 5. But plaintiffs dismissed these defendants pursuant to Federal Rule of Civil

Procedure 41 on January 7, 2021. Dkt. 28.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

B. State and Local Government Response to COVID-19

This case revolves around the COVID-19 pandemic, government response to the

threats posed by COVID-19, and the significant economic hardships that response imposed

on business owners across the State. In response to the pandemic, Governor Newsom

declared a state of emergency on March 4, 2020, and, on March 19, 2020, he signed

Executive Order N-33-20. Executive Order N-33-20 directed all California residents “to

immediately heed the current State public health directives,’ which were concurrently

issued by the California Department of Public Health (“CDPH”). Exec. Ord. N-33-20.

Those directives, issued by the State Public Health Officer and Director of the CDPH,

“order[ed] all individuals living in the State of California to stay home or at their place of

residence except as needed to maintain continuity of operations of the federal critical

infrastructure sectors[.|!” Id. The federal government had identified 16 critical

infrastructure sectors “whose assets, systems, and networks, whether physical or virtual,

are considered so vital to the United States that their incapacitation or destruction would

have a debilitating effect on security, economic security, public health or safety, or any

combination thereof.”’ Id. Accordingly, the CDPH Director “order[ed] that Californians

working in these 16 critical infrastructure sectors may continue their work[.]” Id. the

governor made violation of Executive Order N-33-20 punishable as a misdemeanor. Id.;

see Cal. Gov’t Code § 8665.

The legal and practical effect of Executive Order N-33-20 was, among other things,

to permit businesses related to critical infrastructure sectors to continue operations, while

those unrelated to critical infrastructure sectors were required to cease operations

immediately. Businesses were thus effectively categorized as “essential” or “non-

7 As of December 16, 2020, the 16 critical infrastructure sectors are: chemical:

commercial facilities; communications; critical manufacturing; dams; defense industrial

base; emergency services; energy; financial services; food and agriculture; government

facilities; healthcare and public health; information technology; nuclear reactors, materials,

and waste; transportation systems; and water and wastewater systems. Cybersecurity &

Infrastructure Security Agency, Identifying Critical Infrastructure During COVID-19,

https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19 (last visited April

23, 2021).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

essential.” See SAC 4] 80-82. In mid-March and early April 2020, the counties and cities

at issue in this lawsuit issued orders in accordance with the Governor’s state of emergency

and related executive orders. See dkt. 39-1, SAC, Exh. 3. These local orders required

various “non-essential” businesses to close, including plaintiffs’. SAC § 87.

In all, numerous state and local orders were issued to mitigate the threat posed by

COVID-19. Although plaintiffs do not specify which orders they challenge, for the

purposes of the Court’s Order, the Court refers to all orders issued by defendants to regulate

business operations in response to COVID-19 (“Orders”). The Orders’ impact on plaintiffs

can be summarized as follows.

C. Impact on Plaintiffs

There is no dispute that the closures mandated in response to COVID-19 took a

significant financial toll on plaintiffs. Plaintiffs’ businesses were classified as non-

essential, ceased operation and often stopped billing their members monthly dues.

110, 119, 130, 136, 160, 165, 173, 186, 199, 207, 214. Plaintiffs report losing hundreds of

members. Id. 9] 111, 138, 144, 156, 170, 204. While closed, plaintiffs apparently invested

significant amounts of money into complying with defendants’ Orders, such as by

purchasing personal protective equipment, cleaning supplies, thermometers, and re-

arranging the placement of equipment inside their facilities. Id. 112, 120, 131, 138, 145,

153, 161, 168, 174, 193, 201, 208, 215.

On June 12, 2020, plaintiffs were permitted to re-open so long as they implemented

mandated sanitation guidelines and social distancing protocols, which they did. Id. 113—

114, 122, 131, 139, 145, 152, 161, 168, 209, 216. However, a month later, on July 13,

2020, plaintiffs were forced to cease any indoor operations. Id. ff] 115, 124, 132, 140, 155,

169, 177, 203, 217. Although the Orders permitted plaintiffs to operate outdoors, plaintiffs

struggled to take advantage of this allowance because, in part, gym equipment was often

fixed to the floors and walls for safety, and could not be moved outdoors. Id. J 116, 126,

141, 162, 170, 180, 211, 218.

Plaintiffs brought suit to challenge the various Orders that required their temporary

closure or outdoor operation. Defendants now move, pursuant to Federal Rule of Civil

Procedure 12(b)(6) (“Rule 12(b)(6)”), to dismiss plaintiffs’ claims for failure to state a

claim.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Il. LEGAL STANDARD

A motion pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted

in a complaint. Under this Rule, a district court properly dismisses a claim if “there is a

‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.”” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.

2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his “entitlement to

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). “[F]actual allegations must be enough to raise a right to relief above the speculative

level.” Id.

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all

material allegations in the complaint, as well as all reasonable inferences to be drawn from

them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in

the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to dismiss can

choose to begin by identifying pleadings that, because they are no more than conclusions,

are not entitled to the assumption of truth. While legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service, 572 F.3d 962,

969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory

“factual content,’ and reasonable inferences from that content, must be plausibly suggestive

of a claim entitling the plaintiff to relief.”). Ultimately, “[d]etermining whether a

complaint states a plausible claim for relief will ... be a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S.

at 679.

Unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment,

a court cannot consider material outside of the complaint (e.g., facts presented in briefs,

affidavits, or discovery materials). In re American Cont’! Corp./Lincoln Sav. & Loan Sec.

Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom Lexecon, Inc.

v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court may, however,

consider exhibits submitted with or alleged in the complaint and matters that may be

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc.

Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999): see Lee v. City of Los Angeles, 250 F.3d

668, 689 (9th Cir. 2001).

As a general rule, leave to amend a complaint which has been dismissed should be

freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when □□□□

court determines that the allegation of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co.,

806 F.2d 1393, 1401 (9th Cir. 1986).

IV. DISCUSSION

Defendants advance numerous arguments for why plaintiffs’ claims should be

dismissed, not all of which are necessary to the disposition of the motions before the Court.

The Court addresses those that are dispositive below, and joins a growing list of courts in

this state that have dismissed substantially identical claims challenging many of the same

or effectively the same state and local COVID-19-related orders. See Excel Fitness Fair

Oaks, LLC v. Newsom, No. 2:20-cv-02153-JAM (CKD), 2021 WL 795670 (E.D. Cal. Mar.

2, 2021) (granting motion to dismiss); MetroFlex Oceanside LLC v. Newsom, No. 20-cv-

2110-CAB-AGS, 2021 WL 1251225 (S.D. Cal. Apr. 5, 2021) (same); Culinary Studios.

Inc. v. Newsom, No. 1:20-cv-1340-AWI (EPG), 2021 WL 427115 (E.D. Cal. Feb. 8, 2021)

(same); see also PCG-SP Venture I LLC v. Newsom, No. EDCV 20-1138-JGB (KKx),

2020 WL 4344631 (C.D. Cal. June 23, 2020) (denying application for temporary

restraining order on grounds that plaintiffs’ claims were unlikely to succeed on the merits);

Steel MMA, LLC v. Newsom, No. 21-cv-49-CAB-AGS, 2021 WL 778654 (S.D. Cal. Mar.

1, 2021) (same); Best Supplement Guide, LLC v. Newsom, No. 2:20-cv-00965-JAM

(CKD), 2020 WL 2615022, at *8 (E.D. Cal. May 22, 2020) (same).

A. Requests for Judicial Notice

Federal Rule of Evidence 201 empowers a court to take judicial notice of facts that

are either “(1) generally known within the territorial jurisdiction of the trial court; or (2)

capable of accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b); Mullis v. U.S. Bankr. Court for Dist. of

Nevada, 828 F.2d 1385, 1388 n.9 (9th Cir. 1987).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Here, several defendants have requested the Court take judicial notice of (1) certain

of the Orders at issue, (2) other government publications and guidance relating to COVID-

19, (3) government-issued statistics regarding COVID-19, and (4) court filings in other

cases. Dkts. 41 (“Garcetti RJN”), 43-1 (“Orange County RIN”), 44-2 (“State RIN”), 45-3

(“Bertelsen RJN”), 47-2 (“L.A. County RJN”), 63 (“Garcetti Supp. RJN”).

Plaintiffs oppose the requests for judicial notice on the grounds that, while the

documents themselves “are available on government websites, the information contained

therein is not of common knowledge and is subject to reasonable dispute”; the selection of

documents is a “self-serving” snapshot of information; and the requests do not meet the

standards set forth in California Evidence Code sections 451 and 452. See dkts. 49-1

(“Opp. to L.A. County RJN”), 50-1 (“Opp. to Bertelsen RJN”), 51-1 (“Opp. to Garcetti

RJN”), 53-1 (“Opp. to Orange County RJN”), 54-1 (“Opp. to State RJN’).

The Court finds that judicial notice of the various documents is warranted as they

are in the public record, and each document’s accuracy can be readily determined and is

not reasonably subject to dispute. King v. Cnty. of Los Angeles, 885 F.3d 548, 555 (9th

Cir. 2018) (“| W]e take judicial notice of the undisputed and publicly available information

displayed on government websites.”); Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d

1111, 1116 (C_D. Cal. 2010) (a court “may take judicial notice of matters of public record,

including duly recorded documents, and court records available to the public through the

Pacer system via the internet” (citation omitted)). Furthermore, plaintiffs’ argument that

the selection of documents is “self-serving” is unavailing—they cite to no authority to

support their argument, and, in any event, a party may present evidence which serves its

arguments. Finally, plaintiffs’ reliance on California rules of evidence is misplaced

because federal rules of evidence, not California’s, govern requests for judicial notice in

federal courts. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010) (“The Federal Rules

of Evidence ‘govern proceedings in the courts of the United States.’” (quoting Fed. R.

Evid. 101)).

Accordingly, the Court GRANTS defendants’ requests for judicial notice.

B. Fourteenth Amendment Due Process Claim

Plaintiffs advance several theories of liability within their due process claim: a

substantive due process violation, a procedural due process violation, and a vagueness

claim. SAC 4 234, 236, 237. Defendants move to dismiss each.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

1. Substantive Due Process

“The substantive component of the Due Process Clause forbids the government from

depriving a person of life, liberty, or property in such a way that ... interferes with rights

implicit in the concept of ordered liberty.” Engquist v. Oregon Dep’t of Agric., 478 F.3d

985, 996 (9th Cir. 2007) (quotation omitted, alteration in original).

The parties first dispute whether the Court should apply traditional constitutional

analysis to plaintiffs’ claims, or whether it should apply the standard articulated in

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (“Jacobson”). Under

Jacobson, a measure aimed at addressing a public health emergency must only (1) bear a

“real or substantial relation” to abating the emergency, and (2) not be, “beyond all question,

a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31. However,

Jacobson pre-dated the tiers of scrutiny courts now use to evaluate the constitutionality of

state action, and certain authorities have concluded that the standard applied in Jacobson is

effectively identical to rational basis review. See Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 70 (2020) (“Roman Cath. Diocese”) (Gorsuch, J. concurring)

(“Although Jacobson pre-dated the modern tiers of scrutiny, this Court essentially applied

rational basis review to Henning Jacobson’s challenge to a state law[.|”); Big Tyme

Investments, LLC v. Edwards, 985 F.3d 456, 467 (Sth Cir. 2021).

Plaintiffs nevertheless argue the Court should not apply the Jacobson standard. Opp.

to L.A. County MTD at 7-8; Opp. to Garcetti MTD at 7-8: Opp. to Ventura County MTD

at 7; Opp. to Orange County MTD at 6—7; Opp. to State MTD at 7-8; Opp. to Santa Barbara

County MTD at 6-7. Plaintiffs’ principal argument to this effect is that the Supreme

Court’s ruling in Roman Catholic Diocese limited Jacobson’s application. But the

controlling opinion in Roman Catholic Diocese did not address Jacobson. And the

concurrence to which plaintiffs cite simply concluded that Jacobson did not warrant

abandoning strict scrutiny when analyzing government action that infringed on religious

free exercise rights protected by the First Amendment to the United States Constitution.

See Roman Cath. Diocese, 141 S. Ct. at 70 (Gorsuch, J. concurring). Here, plaintiffs have

not established that defendants’ Orders infringe on a fundamental right, as discussed below.

See Excel Fitness, 2021 WL 795670, at *4 (distinguishing Roman Cath. Diocese on these

grounds). In any event, the Court need not decide whether Jacobson applies—or whether

it represents a materially different standard from rational basis review—because plaintiffs’

claims fail under traditional constitutional analysis.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Another preliminary dispute between the parties is whether plaintiffs have

established that the Orders at issue infringe on a fundamental right such that they trigger

heightened constitutional protections. “Substantive due process cases typically apply strict

scrutiny in the case of a fundamental right and rational basis review in all other cases.”

Witt v. Dept. of the Air Force, 527 F.3d 806, 817 (9th Cir. 2008). Plaintiffs contend that

the Orders interfered with their fundamental liberty interest to choose one’s line of work.

Opp. to L_-A. County MTD at 10-11; Opp. to Bertelsen MTD at 10; Opp. to Garcetti MTD

at 11-12: Opp. to Ventura County MTD at 11; Opp. to Orange County MTD at 10-11:

Opp. to State MTD at 11-12: Opp. to Santa Barbara County MTD at 10-11. Plaintiffs

principally rely on a case from the Southern District of California, Bols v. Newsom, No.

20-cv-00873-BEN (BLM), 2021 WL 268609 (S.D. Cal. Jan. 26, 2021) (“Bols”). In Bols,

the court found that business owners forced to close their businesses in light of COVID-

19-related restrictions enjoyed a “fundamental constitutional right to use [their] labor in a

common occupation.” Id. at *6.

However, the Ninth Circuit, also addressing due process claims alleged by business

owners aggrieved by the COVID-19 shutdown, observed that “[w]e have ‘never held that

the right to pursue work is a fundamental right,’ and, as such, the district court likely did

not err in applying rational basis review to [the plaintiffs’|] due process claims.” Tandon

v. Newsom, 992 F.3d 916 (9th Cir. 2021) (quoting Sagana v. Tenorio, 384 F.3d 731, 743

(9th Cir. 2004)), disapproved of on other grounds in later proceedings, No. 20A151, 2021

WL 1328507 (U.S. Apr. 9, 2021). Plaintiffs attempt to avoid the holding in Tandon by

arguing that it was “an afterthought,” see, e.g., Opp. to L.A. County MTD at 13, but that is

not the case. That conclusion was dispositive of the business-owner appellants’ argument

on appeal that the district court erred in denying their motion for a preliminary injunction.

Accordingly, because plaintiffs have not alleged infringement of a fundamental nght,

rational basis review applies to plaintiffs’ due process claim. Engquist, 478 F.3d at 997

(applying rational basis review for right to pursue a profession).

Under rational basis review, “[i]f a statute is not arbitrary, but implements a rational

means of achieving a legitimate governmental end, it satisfies due process.” Kim v. United

States, 12] F.3d 1269, 1273 (9th Cir. 1997) (quotation omitted). Plaintiffs “shoulder a

heavy burden” of showing that the government “could have had no legitimate reason for

its decision.” Halverson v. Skagit Cty., 42 F.3d 1257, 1262 (9th Cir. 1994) (quotation

omitted). Here, there is no dispute that preventing the spread of COVID-19 is a legitimate

government end. Roman Cath. Diocese, 141 S. Ct. at 67. And plaintiffs have not met their

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

heavy burden of negating any possible legitimate reason for implementation of the Orders,

nor, for that matter, for classifying gyms as “non-essential.” To the contrary, numerous

courts have found that orders closing gyms survive rational basis review. See League of

Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125, 129 (6th Cir. 2020)

(“[T]he idea that heavy breathing and sweating in an enclosed space containing many

shared surfaces creates conditions likely to spread the virus is a paradigmatic example of

‘rational speculation’ that fairly supports the [Michigan] Governor’s treatment of indoor

fitness facilities.”); Excel Fitness, 2021 WL 795670, at *5. Plaintiffs therefore fail to state

a substantive due process claim.

2. Procedural Due Process

Plaintiffs further allege that defendants “fail[ed] to provide any meaningful

procedure for challenging [their] determination that a business is non-essential, either pre

or post deprivation of Plaintiffs’ constitutional nght to use of their property.” SAC § 237.

“Procedural due process imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

clause[.|” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “However, ‘[w]hen the action

complained of is legislative in nature, due process is satisfied when the legislative body

performs its responsibilities in the normal manner prescribed by law.’” Halverson, 42 F.3d

at 1260 (quoting Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 957 (9th Cir. 1991))

(alteration in original). To determine whether government action 1s legislative in nature,

courts “focus|] on the ‘character of the action, rather than its labell.|’” Id. (quoting Harris

v. County of Riverside, 904 F.2d 497, 501 (9th Cir. 1990)). Accordingly, and relevant

here, “governmental decisions which affect large areas and are not directed at one or a few

individuals do not give rise to the constitutional procedural due process requirements of

individual notice and hearing[.]” Id. at 1261.

Defendants argue that there is no due process right to individual notice and hearing

because the Orders reflect government decisions that are of general applicability. Garcetti

MTD at 22-23; Ventura County MTD at 11; Orange County MTD at 14-15; State MTD

at 14: Santa Barbara County MTD at 11-12; L.A. County MTD at 14-15.

Plaintiffs, again citing to Bols, respond that the Orders are not legislative but rather

executive in nature, and that, in any event, determining whether an action is legislative or

executive is a question of fact not properly decided on a motion to dismiss. Opp. to L.A.

County MTD at 11—12; Opp. to Bertelsen MTD at 10; Opp. to Garcetti MTD at 12; Opp.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

to Ventura County MTD at 11—12; Opp. to Orange County MTD at 11; Opp. to State MTD

at 12: Opp. to Santa Barbara County MTD at 11.

This Court joins others to have addressed the question and determines that the

challenged Orders are decisions of general applicability that, therefore, are legislative in

nature and do not entitle plaintiffs to individual notice or hearing. See Excel Fitness, 2021

WL 795670, at *5; PCG-SP Venture I, 2020 WL 4344631, at *8: Steel MMA, 2021 WL

778654, at *4. The Orders affect all individuals and businesses operating in their respective

jurisdictions, and are not directed at one or a few individuals. See PCG-SP Venture I, 2020

WL 4344631, at *8. And the provisions that address gyms address all gyms, not just one

or a few. On these grounds, the Court respectfully disagrees with the Bols court’s

conclusion that such orders “appear to be[] pure executive action[.]” Bols, 2021 WL

268609, at *5. Finally, there appears to be no additional fact discovery that would alter the

conclusion that the Orders are generally applicable, so decision on a motion to dismiss 1s

appropriate. Plaintiffs have therefore failed to state a procedural due process claim.

3. Vagueness

Finally, plaintiffs allege that the Orders “fail to provide sufficient notice of which

actions will potentially subject Plaintiffs to civil or [| criminal penalties,” and that “[i]t

would, at best, be unclear to any person of ordinary intelligence what Defendants’ Orders

collectively prohibit and/or allow.” SAC 4 234. A law or executive order “is

impermissibly vague if it [1] fails to provide a reasonable opportunity to know what

conduct is prohibited, or [2] is so indefinite as to allow arbitrary and discriminatory

enforcement.” Arce v. Douglas, 793 F.3d 968, 988 (9th Cir. 2015): see Edge v. City of

Everett, 929 F.3d 657, 664 (9th Cir. 2019). “[A] party challenging the facial validity of an

ordinance on vagueness grounds outside the domain of the First Amendment must

demonstrate that ‘the enactment is impermissibly vague in all of its applications.’” Hotel

& Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003) (quoting

Vill. of Hoffman Ests. v. Flipside, Hoffman Ests.. Inc., 455 U.S. 489, 495 (1982)).

Defendants argue that plaintiffs fail to state a claim for unconstitutional vagueness

because they point to no supposedly vague language in the orders, and, in any event, the

orders clearly define prohibited activities. Garcetti MTD at 21—22: Ventura County MTD

at 10-11: Orange County MTD at 15-16; State MTD at 18-19: Bertelsen MTD at 30-31;

Santa Barbara County MTD at 13; L.A. County MTD at 19-20. Plaintiffs do not directly

address these arguments in their oppositions.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

Plaintiffs’ claim that the Orders are void for vagueness is conclusory and is not

supported by any factual allegations. On this ground, their claim must be dismissed. See

Iqbal, 556 U.S. at 679 (legal conclusions “must be supported by factual allegations”); Excel

Fitness, 2021 WL 795670, at *6. Furthermore, plaintiffs have not met their burden of

showing that the Orders are impermissibly vague “in all of [their] applications.” To the

contrary, other allegations in plaintiffs’ SAC make it apparent plaintiffs were aware of what

conduct the Orders did or did not prohibit. See MetroFlex, 2021 WL 1251225, at *5.

Plaintiffs therefore fail to state an unconstitutional vagueness claim.

4. Leave to Amend

As noted above, leave to amend may be denied when “the court determines that the

allegation of other facts consistent with the challenged pleading could not possibly cure

the deficiency.” Schreiber Distrib., 806 F.2d at 1401. But leave to amend is the general

tule. Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018). In this case,

although it is unclear what factual allegations could save plaintiffs’ due process claims, it

is nevertheless the case that plaintiffs’ allegations are cast at a high level of generality. The

Court therefore cannot say with confidence that no factual allegations consistent with those

pled in the SAC could support plaintiffs’ claims. As such, leave to amend is the prudent

course of action. See Culinary Studios, 2021 WL 427115, at *19 (granting leave to amend

all but procedural due process claim).

Accordingly, the Court DISMISSES each of plaintiffs’ due process claims without

prejudice.

C. Fifth Amendment Takings Claim

Plaintiffs also allege defendants’ Orders violate the Takings Clause of the Fifth

Amendment because the Orders deprived plaintiffs of “all economically beneficial use of

their businesses without just compensation|.]” SAC § 222. “The Takings Clause of the

Fifth Amendment states that ‘private property [shall not] be taken for public use, without

just compensation.’” Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2167 (2019)

(quoting U.S. Const. amend. V) (alteration in original). Although the parties dispute

whether plaintiffs have alleged a property interest in operating their businesses, the Court

finds that, even if plaintiffs have made such a showing, their takings claim fails.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

1. Total Regulatory Taking

Defendants generally argue that plaintiffs do not state a claim for a total regulatory

taking because they do not allege a complete loss of economic value. Garcetti MTD at 26;

Ventura County MTD at 12; Bertelsen MTD at 22-23: Santa Barbara County MTD at 8;

L.A. County MTD at 10. Plaintiffs respond that they have sufficiently alleged that

defendants’ “implementation of the orders deprives Plaintiffs of all effective economically

beneficial uses of their businesses,” namely because “loss of membership necessarily

means loss of membership dues|.]” Opp. to L.A. County MTD at 10; Opp. to Bertelsen

MTD at 9; Opp. to Garcetti MTD at 10—11; Opp. to Ventura County MTD at 10; Opp. to

Orange County MTD at 9-10; Opp. to State MTD at 10; Opp. to Santa Barbara County

MTD at 9-10.

A total regulatory taking, or a Lucas taking, occurs when a regulation “completely

deprive[s| an owner of ‘a// economically beneficial us[e]’ of her property.” Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (quoting Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1019 (1992)) (emphasis and second alteration in original). Here,

assuming plaintiffs have alleged a protected property interest, they have not alleged a

complete loss of economic value. To the contrary, the Orders permit operating outdoors,

among other things. See Culinary Studios, 2021 WL 427115, at *14. As such, plaintiffs

fail to state a claim for a total regulatory taking.

2. Partial Regulatory Taking

Defendants further argue that plaintiffs fail to state a claim for a partial regulatory

taking on the grounds that, among other things, the character of the government action

cannot constitute a taking, and Supreme Court precedent forecloses the argument that a

temporary closure of this duration is a compensable taking. Garcetti MTD at 26-29;

Ventura County MTD at 9-10; Orange County MTD at 13-14: State MTD at 12-13:

Bertelsen MTD at 24-26; Santa Barbara County MTD at 8-9; L.A. County MTD at 11—

12. Plaintiffs do not directly address these arguments in their oppositions.

Partial regulatory takings are assessed under the three-part test established in Penn

Central Transportation Authority v. City of New York, 438 U.S. 104 (1978) (“Penn

Central”). The Penn Central inquiry analyzes (1) “[t]he economic impact of the regulation

on the claimant,” (2) “the extent to which the regulation has interfered with distinct

investment-backed expectations,” and (3) “the character of the government action.” Id. at

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

124: see Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1225 (9th Cir. 2018). But the

Supreme Court cautioned that regulations that merely “adjust| | the benefits and burdens

of economic life to promote the common good” are less likely to constitute a taking than

those that enact a “physical invasion” of property. Id. at 124.

Here, assuming plaintiffs can show an economic impact on their property interest

and that the Orders interfered with their distinct investment-backed expectations,

defendants’ Orders nevertheless “are quintessential examples of regulations that ‘adjust| |

the benefits and burdens of economic life to promote the common good|.|’” PCG-SP

Venture I, 2020 WL 4344631, at *10 (quoting Penn Central, 438 U-S. at 124) (alterations

in original). Moreover, plaintiffs fail to explain why the Orders here constitute a partial

regulatory taking when the Supreme Court has found that a 32-month, complete

moratorium on development was not a taking under Penn Central. See Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’! Plan. Agency, 535 U.S. 302, 316, 319-20, 321, 343 (2002)

(applying Penn Central and finding no taking where moratorium on development deprived

land of all economic value for 32 months); Excel Fitness, 2021 WL 795670, at *5 (“Given

that the Supreme Court did not find a 32-month moratorium to constitute a regulatory

taking, Plaintiffs’ allegations of a few months of gym closures, [Citations], followed by

reopening with COVID-19-safety-related restrictions, [Citations], are clearly insufficient

to establish a regulatory taking.”). As such, plaintiffs fail to state a claim for a partial

regulatory taking.

3. Leave to Amend

As with plaintiffs’ due process claims, it is unclear what factual allegations could

cure plaintiffs’ takings claim. Nevertheless, for the reasons stated above, the Court finds

granting leave to amend the prudent course of action. See Culinary Studios, 2021 WL

427115, at *15 (granting leave to amend takings claim).

Accordingly, the Court DISMISSES plaintiffs’ takings claim without prejudice.

D. State-Law Claims

Plaintiffs’ state-law claims allege violations of the Liberty Clause of the California

Constitution, Cal. Const. Art. 1, § 1; the Equal Protection Clause of the California

Constitution, Cal. Const. Art. 1, § 7; and Cal. Gov. Code § 8572, which authorizes the

Governor of California to commandeer private property in a state of emergency.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-09824-CAS-KSx Date May 10, 2021

Title MISSION FITNESS CENTER, LLC ET AL v. GAVIN NEWSOM ET AL

A district court may decline to exercise supplemental jurisdiction over state-law

claims when it has dismissed the claims over which it had original jurisdiction. 28 U.S.C.

§ 1367(c)(3). In this case, the Court had original jurisdiction over claims one and two,

which arose under the United States Constitution. Having dismissed those claims, the

Court is disinclined to exercise supplemental jurisdiction over plaintiffs’ state-law claims.

See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (holding that “when the

federal-law claims have dropped out of the lawsuit in its early stages and only state-law

claims remain, the federal court should decline the exercise of jurisdiction by dismissing

the case without prejudice”). However, because plaintiffs have been granted leave to

amend their federal claims, the Court will defer addressing the state-law claims until such

time as plaintiffs file or decline to file an amended complaint.

V. CONCLUSION

In accordance with the foregoing, the Court GRANTS defendants’ motions to

dismiss in part, and DISMISSES plaintiffs’ first and second claims without prejudice.

The Court reserves judgment on plaintiffs’ third, fourth and fifth claims until such time

as plaintiffs file or decline to file an amended complaint. If plaintiffs intend to amend their

claims for relief in order to cure the defects noted in this order, they must do so by May

24, 2021.

IT IS SO ORDERED.

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