Tuck's Restaurant and Bar v. Newsom

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 Tuck’s Restaurant and Bar, et al., No. 2:20-cv-02256-KJM-CKD

12 Plaintiffs, ORDER

13 v.

Nevada County, et al.,

1S Defendants.

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17 Plaintiffs, two Nevada County restaurants, their owners and a Nevada County restaurant

18 | coalition, allege defendants Nevada County and its County Counsel, Katharine Elliott, retaliated

19 | against them for voicing opposition to COVID-era closure orders and related enforcement efforts.

20 | Defendants move for summary judgment. As explained in this order, plaintiffs have expressly

21 | abandoned their original theory of defendants’ liability. Permitting them to advance a new legal

22 | theory and new arguments at this late stage of the case would cause undue delay and prejudice the

23 | defense. For these reasons, the court grants defendants’ motion for summary judgment.

24 | I. BACKGROUND

25 In early 2020, California Governor Gavin Newsom declared a state of emergency due to

26 | the health crisis caused by the spread of SARS-CoV-2, the virus that causes COVID-19. Compl.

27 | § 11, ECF No. 39; St.’s Req. Jud. Not. (“St.’s RJN”) Ex. 1, ECF No. 12. The State of California

28 | and Nevada County issued directives restricting public activities to curb the spread of the virus.

1 Compl. ¶¶ 11–30; see e.g., St.’s RJN Ex. 4; Cnty.’s Req. Jud. Not. (“Cnty.’s RJN”) Ex. B, ECF

2 No. 10-1. As a result of these directives, Nevada County issued warnings, fines and closure

3 orders, including to plaintiff restaurants. Compl. ¶¶ 25–37; see, e.g., Cnty.’s RJN Ex. F; Cnty.’s

4 RJN Ex. G. Plaintiffs allege defendants retaliated against them because plaintiffs spoke out in

5 opposition to the enforcement actions and helped form a coalition of local restaurants to oppose

6 the enforcement actions. Compl. ¶¶ 8, 34–36, 40–41. Specifically, plaintiff Old Town Café

7 “asked patrons, family, and friends to write to the County Defendants to express opposition to the

8 shutdown of local restaurants.” Id. ¶ 33.

9 Plaintiffs allege during an August 2020 meeting, defendant Kathrine Elliott, the county

10 counsel, “refus[ed] to negotiate fines” and “stated that as a condition to reinstituting the operating

11 permits of, and reducing the fines imposed on [plaintiffs], plaintiffs were ‘to behave’ and stop

12 asking people to write letters to county and local officials.” Id. ¶¶ 35–37, 40–41. These

13 statements are the only adverse action plaintiffs allege in their complaint. However, in their

14 opposition to defendants’ motion for summary judgment, plaintiffs argue the statements at the

15 August 2020 meeting were “not an actionable adverse state action” and instead were “evidence of

16 causation.” Opp’n at 4, ECF No. 67. Contrary to their complaint, plaintiffs now argue the

17 retaliatory actions at issue were earlier “initial enforcement actions” and two “suspensions of their

18 Food Permits,” which they received several months after the August 2020 meeting. Id. at 3, 5–6;

19 Tuck’s Jan. Letter, Opp’n Ex. 1, ECF 67-1; Old Town Café Jan. Letter, Opp’n Ex. 2, ECF 67-1.

20 Plaintiffs’ complaint does not mention these later letters and does not identify the “initial

21 enforcement actions” as the adverse action at issue. The chronological statement of facts in the

22 complaint culminates with descriptions of the August 2020 meeting, and expressly identifies the

23 August 2020 meeting as the “retaliation” that “coerce[d]” them “to forego the exercise of their

24 First Amendment rights[.]” Compl. ¶¶ 35–37.

25 The court previously dismissed all but one of plaintiffs’ claims. See Mot. Dismiss Order,

26 ECF No. 37. Plaintiffs’ remaining claim alleges a First Amendment violation under 42 U.S.C.

27 § 1983. See First Am. Compl. ¶¶ 38–45. Defendants’ motion for summary judgment is fully

28 briefed. Mot., ECF No. 66; Opp’n; Reply, ECF No. 68. Plaintiffs did not respond to defendants’

1 statement of undisputed facts. See generally Opp’n; Defs.’ UMF, ECF No. 66-1. The court does

2 not deem those facts undisputed for that reason alone. When determining whether certain facts

3 are disputed, in the interest of resolving this matter on the merits, the court has considered

4 plaintiffs’ opposition arguments. See generally id. The court does, however, remind the parties

5 of the importance of complying with the Local Rules. Failure to comply in the future could lead

6 to sanctions.

7 The court held a hearing on the pending motion on January 26, 2024. Hr’g, ECF No. 71.

8 Robert Williams appeared for plaintiffs and David Mehretu appeared for defendants.

9 II. LEGAL STANDARD

10 Summary judgment is appropriate if “there is no genuine dispute as to any material fact

11 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

12 “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

13 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome

14 of the suit under the governing law.” Id. The parties must cite “particular parts of materials in

15 the record.” Fed. R. Civ. P. 56(c)(1). The court then views the record in the light most favorable

16 to the nonmoving party and draws reasonable inferences in that party’s favor. Matsushita Elec.

17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Adickes v. S.H. Kress & Co., 398

18 U.S. 144, 157 (1970).

19 III. ANALYSIS

20 “The First Amendment forbids government officials from retaliating against individuals

21 for speaking out.” Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citing Hartman

22 v. Moore, 547 U.S. 250, 256 (2006)). To prevail on a claim for retaliation in violation of the First

23 Amendment under § 1983, plaintiffs must ultimately establish: (1) they engaged in

24 constitutionally protected activity; (2) defendants subjected plaintiffs to adverse action that would

25 chill a person of ordinary firmness from continuing to engage in the protected activity; and

26 (3) there was a substantial causal relationship between the constitutionally protected activity and

27 the adverse action. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir.

1 2016) (citation omitted). Defendants argue they are entitled to summary judgment because

2 plaintiffs raise no triable issue of material fact on the third element, causation. See Mot. at 19–23.

3 The court begins with a critical difference between plaintiffs’ complaint and their

4 opposition to defendants’ motion. In their opposition, plaintiffs disavow the adverse action they

5 allege is the basis for their First Amendment retaliation claim in the complaint. See Opp’n at 3–4;

6 see also Reply at 10–11 (highlighting the issues posed by plaintiffs’ differing positions regarding

7 the alleged adverse action). In the complaint, plaintiffs allege at the August 2020 meeting,

8 defendants “retaliated against plaintiffs for the exercise of their rights to free speech, lawful

9 assembly, and to petition the government for a redress of grievances,” when defendants

10 threatened closures and fines and “refus[ed] to negotiate reductions in fines imposed on

11 [plaintiffs] unless plaintiffs cease[d] activities protected by the First Amendment.” Compl.

12 ¶¶ 40–41. As explained above, plaintiffs have changed course in their opposition to summary

13 judgment, arguing the County’s statements at the August 2020 meeting are “not actionable

14 adverse state action” and are instead “evidence of causation” of the new adverse actions they

15 argue in the opposition: the “initial enforcement actions” and the two January 2021 letters of

16 “pending” suspension. Opp’n at 3–4. At hearing, plaintiffs initially wavered between the two

17 stances but ultimately committed to their argument in the opposition. Because plaintiffs have

18 expressly disavowed their intent to prove the County’s statements at the August 2020 meeting

19 were an “adverse action,” plaintiffs cannot succeed on their First Amendment retaliation claim on

20 that basis. See Reynoso v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006) (a party’s concession to

21 a district court is binding).

22 While plaintiffs now rely on the “initial enforcement actions” and the January 2021 letters

23 as the “adverse actions,” Opp’n at 3–6, they did not allege these incidents were adverse actions in

24 the complaint, as noted above, see generally Compl. If “the complaint does not include the

25 necessary factual allegations to state a claim, raising such claim in a summary judgment motion is

26 insufficient to present the claim to the district court.” Navajo Nation v. U.S. Forest Serv., 535

27 F.3d 1058, 1080 (9th Cir. 2008) (en banc) (citation omitted). Moreover, “[t]he necessary factual

28 averments are required with respect to each material element of the underlying legal theory. . . .

1 Simply put, summary judgment is not a procedural second chance to flesh out inadequate

2 pleadings.” Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)

3 (citation omitted).

4 The district and circuit courts’ decisions in Navarro v. Menzies Aviation, Inc. show how

5 this rule works in practice in a case like this one. See generally No. 21-15355, 2022 WL 1537034

6 (9th Cir. 2022), aff’g 517 F. Supp. 3d 919 (N.D. Cal. 2021). The Circuit affirmed the district

7 court in its decision to grant summary judgment for defendants, and also not to consider a new

8 argument plaintiff raised for the first time in opposition to summary judgment and not to reopen

9 discovery for an investigation into that new argument. See id. at *1. The district court found a

10 “sharp pivot so late in the litigation” would be unfair because defendants were “not on notice

11 until after the close of discovery, and thus had no opportunity to explore [the new arguments] in

12 discovery or investigate them internally.” 517 F. Supp. 3d at 920–21. In support of its initial

13 decision, the lower court had observed that two years had passed since the adverse action the

14 plaintiff belatedly attempted to rely on and the “principles of fair notice” on which the adversarial

15 system is built “would be meaningless if [the plaintiff] and his lawyers were permitted to

16 circumvent them.” Id. at 921. Furthermore, plaintiffs had not established good cause to justify

17 reopening discovery. Id.

18 This case is analogous to Navarro. As did the plaintiffs in that case, plaintiffs here made

19 materially different new arguments at summary judgment and discovery is now closed. Even

20 more time—three years here, as compared to two in Navarro—has passed since the adverse

21 actions on which plaintiffs now rely occurred. Cf. Compl. ¶¶ 3, 5–6, with Opp’n. As in Navarro,

22 permitting plaintiffs to change theories so late in the case would permit a circumvention of the

23 “principles of fair notice.” 517 F. Supp. 3d at 921.

24 The court would reach the same conclusion if, in the alternative, it considered plaintiffs’

25 new arguments and theory as an implicit request for leave to amend their complaint, although

26 plaintiffs have not made such a request expressly. See Scheduling Order, ECF No. 49; see also

27 Aguirre v. Ducart, No. 21-15269, 2022 WL 3010169, at *1 (9th Cir. 2022) (affirming district

28 court decision not to construe plaintiff’s new arguments at summary judgment as request for

1 leave to amend where there was no “showing of good cause”). “Five factors are taken into

2 account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice

3 to the opposing party, futility of amendment, and whether the plaintiff has previously amended

4 the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citation

5 and marks omitted). These factors weigh against allowing amendment in this case. The court

6 assigns the greatest weight to undue delay: as noted, the most recent of the newly argued adverse

7 actions was three years ago, and plaintiffs provide no explanation for their delay in presenting

8 their new theory of retaliation. See Opp’n; Tuck’s Jan. Letter; Old Town Café Jan. Letter. Next

9 is prejudice: discovery is closed, and defendants have not had a chance to investigate plaintiffs’

10 new theory of “adverse action.” Defendants relied on the complaint in conducting discovery and

11 bringing their motion for summary judgment, which accepts the August 2020 meeting as the

12 adverse action. See generally Mot.; Compl. ¶¶ 35–37. The limited response defendants were

13 able to provide in their reply to the specific issue of the newly argued adverse actions is not

14 sufficient to mitigate potential prejudice, particularly when defendants have not been able to

15 conduct discovery on the matter. See Reply at 10–11. Previously, plaintiffs had a chance to

16 amend their complaint following the court’s ruling on a motion to dismiss. See generally Mot.

17 Dismiss Order at 25–26. While the court discerns no bad faith in plaintiffs’ actions, neither have

18 they provided a good-faith explanation for their late-stage shift. See generally Opp’n. Other

19 courts have not permitted amendment in similar circumstances. See Yellowstone Women’s First

20 Step House, Inc. v. City of Costa Mesa, No. 19-56410, 2021 WL 4077001, at *1 (9th Cir. Sept. 8,

21 2021) (affirming district court’s grant of summary judgment where plaintiff asserted new

22 arguments in opposition to defendant’s motion for summary judgment and where leave to amend

23 would have been futile under relevant factors analysis); Ray v. State Farm Mut. Auto. Ins. Co.,

24 No. 20-55989, 2021 WL 4902357, at *1–2 (9th Cir. Oct. 21, 2021) (same). Neither have

25 plaintiffs shown good cause for reopening discovery. Cf. Desertrain, 754 F.3d at 1154–55

26 (finding district court erred by not granting leave to amend where plaintiffs only discovered new

27 arguments at end of discovery).

1 In sum, plaintiffs have expressly abandoned their allegation defendants retaliated against

2 them in the August 2020 meeting, and the court declines to accommodate their belated pivot to a

3 new theory of retaliation. Defendants are entitled to summary judgment as a matter of because

4 of this abandonment. The court need not and does not consider whether defendant Elliott is

5 entitled to qualified immunity, see Mot. at 23–25; Reply at 12–13, whether the County had an

6 unconstitutional policy or practice, see Mot. at 25–26; Reply at 14–15, or whether plaintiffs’

7 requests for prospective, equitable relief are moot, see Mot. at 26–27; Reply at 15.

8 IV. CONCLUSION

9 The court grants defendants’ motion for summary judgment. This order resolves ECF

10 No. 66. The Clerk of Court is directed to enter judgment in favor of defendants and close the

11 case.

12 IT IS SO ORDERED.

13 DATED: September 10, 2024.