The opinion
Filed 6/12/23 Provence v. Newsom CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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publication or ordered published for purposes of rule 8.11 15.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
PROVENCE, LLC, et al., C094888
Plaintiffs and Appellants, (Super. Ct. No. S-CV-0046346)
v.
GAVIN NEWSOM, AS GOVERNOR, etc., et al.,
Defendants and Respondents.
In March 2021, various Placer County dining establishments (plaintiffs) together
filed a complaint challenging the enforcement of orders promulgated by Governor
Newsom and other public officials (defendants) restricting business operations during the
COVID-19 pandemic. Plaintiffs sought declaratory and injunctive relief. They did not
seek monetary damages. After Governor Newsom rescinded the challenged orders in
June 2021, the trial court sustained defendants’ demurrer to the complaint, ruling
plaintiffs’ action was moot. The trial court denied leave to amend.
1
On appeal, plaintiffs contend (1) the trial court erred in ruling their action was
moot; (2) even if their action was moot, the trial court abused its discretion by failing to
exercise its discretion to decide the case pursuant to various exceptions to the mootness
doctrine; and (3) the trial court abused its discretion in denying leave to amend. We will
affirm.
BACKGROUND
“In response to the COVID-19 pandemic, Governor Newsom declared a state of
emergency in California on March 4, 2020. About two weeks later he issued Executive
Order N-33-20, colloquially referred to as the ‘stay-at-home order.’ Among other
restrictions, it prohibited restaurants from providing both indoor and outdoor
dining. [¶] Restaurants, gyms, and other businesses deemed nonessential remained
closed until May 4, when the Governor issued Executive Order N-60-20.” It allowed
reopening in phases as determined by the State Department of Public Health (Health
Department). (640 Tenth LP v. Newsom (2022) 78 Cal.App.5th 840, 849-850, fns.
omitted.)
In July 2020, the Health Department ordered the closure of all indoor bar and
restaurant operations in Placer County.
In August 2020, the Health Department issued “The blueprint for a safer
economy,” which “created a color-coded tiered system, updated weekly, that assigned
each county a color (purple, red, orange, or yellow) based on its assessed risk level for
COVID-19 transmission and imposed corresponding restrictions for different business
sectors. For restaurants, indoor dining in ‘purple’ counties was prohibited. Those in
‘red’ counties were limited to operating at 25 percent capacity . . . . Restaurants in
‘orange’ counties were prohibited from operating at more than 50 percent capacity.”
(640 Tenth LP, supra, 78 Cal.App.5th at pp. 850-851.)
From September 2020 to November 2020, Placer County moved from purple to
orange and back to purple. In December 2020, the Health Department issued a regional
2
stay-at-home order for the Sacramento region, prohibiting all sit-down dining in Placer
County. In January 2021, the regional stay-at-home order was lifted, and outdoor dining
was again permitted in Placer County. Indoor dining was still prohibited.
In March 2021, plaintiffs filed a complaint for declaratory and injunctive relief
only, seeking to “invalidat[e] or restrain[ ] enforcement of the . . . [o]rders and
restriction[s] imposed by [d]efendants.” Containing 11 causes of action, including
asserted violations of California’s non-delegation doctrine and improper takings in
violation of the state and federal Constitutions, the complaint argued that beginning with
the stay-at-home-order, plaintiffs were “denied substantially all economic uses of their
businesses.” If not soon “authorized to resume indoor service at full capacity,” plaintiffs
warned, “they w[ould] cease to be viable . . . enterprises.”
In June 2021, with Executive Order N-07-21, Governor Newsom rescinded the
March 2020 statewide stay-at-home-order and the May 2020 order authorizing the Health
Department to issue and administer a risk-based framework for reopening the economy.
(See 640 Tenth LP, supra, 78 Cal.App.5th at p. 851.) Defendants demurred to the
complaint asserting, inter alia, (1) the entire action was moot in light of those rescissions,
and (2) on the merits, all 11 causes of action failed to state valid claims. In opposition,
plaintiffs argued their action was not moot, because there was a “constant threat” the
previously imposed orders (or “essentially similar restrictions”) would be reinstated.
Plaintiffs asked to be allowed to amend the complaint if the trial court sustained the
demurrer.
After hearing oral argument, the trial court sustained the demurrer without leave to
amend, ruling plaintiffs’ claims were moot because the “underlying restrictions”
plaintiffs challenged were “no longer in effect,” and the “abstract proposition of untold
future restrictions [was] insufficient to manifest a sufficient controversy before the
court.”
3
Plaintiffs timely appealed in September 2021. Plaintiffs filed their opening brief
on August 16, 2022. The case became fully briefed in March 2023, and was assigned to
this panel shortly thereafter.
DISCUSSION
I
Mootness
Plaintiffs argue their action “was not and is not moot,” because the trial court
“could provide effective relief” in the form of (1) a declaratory judgment as to three of
plaintiffs’ causes of action, and/or (2) damages. We agree with defendants the case is
moot and plaintiffs have not met their burden of demonstrating they could amend the
complaint to seek money damages.
A. Standard of Review and Judicial Notice
A demurrer—which “admits all material and issuable facts pleaded in the
complaint, amplified by matters of which judicial notice may be taken . . . [citation], and
the concessions of a pleader” (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739,
746)—raises only questions of law by testing the sufficiency of the complaint.
Accordingly, a trial court’s ruling sustaining a demurrer is reviewed de novo.1 (Berg &
Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)
The trial court took judicial notice of Governor Newsom’s state of emergency
declaration and the Executive Orders referenced above. And plaintiffs conceded that
Executive Order N-07-21 rescinded the March 2020 statewide stay-at-home order and the
1 Defendants argue we should review the trial court’s mootness ruling for substantial
evidence, “[t]o the extent plaintiffs’ appeal” does not raise any questions of law. The two
cases defendants cite for support did not present the procedural posture we confront here:
the sustaining of a demurrer on mootness grounds.
4
May 2020 order authorizing the Health Department to issue and administer a risk-based
framework for reopening the economy.2
B. Mootness Principles
Courts in California should decide only justiciable controversies. “ ‘The concept
of justiciability is a tenet of common law jurisprudence and embodies “[t]he principle
that courts will not entertain an action which is not founded on an actual controversy.” ’ ”
(Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th
714, 722.) A case in which an actual controversy once existed becomes moot when the
controversy ceases to exist due to the passage of time or a change in circumstances before
a decision is rendered. “ ‘The pivotal question in determining if a case is moot is
therefore whether the court can grant the plaintiff any effectual relief. . . . When events
render a case moot, the court, whether trial or appellate, should generally dismiss it.’ ”
(Ibid.)
Plaintiffs apparently do not challenge the trial court’s conclusion that injunctive
relief would not have provided them with any form of effective relief. But they assert
their third cause of action (non-delegation doctrine) and fourth and fifth causes of action
(improper takings under the federal and state Constitutions) were not moot when the trial
court dismissed them, because they concerned requests for declaratory relief.
C. Declaratory Relief
Like injunctive relief, declaratory relief is an equitable remedy. (Reid v. City of
San Diego (2018) 24 Cal.App.5th 343, 362; Faunce v. Cate (2013) 222 Cal.App.4th 166,
2 In a December 2022 filing, defendants requested we take judicial notice of Governor
Newsom’s announcement that the COVID-19 state of emergency would be terminated on
February 28, 2023. And in March 2023, defendants informed us that on February 28,
2023, Governor Newsom did terminate that state of emergency. We deny as unnecessary
defendants’ request for judicial notice. Our analysis of the pertinent issues in this appeal
does not depend on the existence of a COVID-19 state of emergency.
5
173.) As set forth in Code of Civil Procedure section 1060, an actual controversy relating
to the legal rights and duties of the respective parties is required. Stated differently,
“ ‘declaratory relief is appropriate only where there is an actual controversy, not simply
an abstract or academic dispute.’ ” (Connerly v. Schwarzenegger, supra, 146
Cal.App.4th at p. 746; see Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 530
[a claim for declaratory relief “ ‘ “becomes moot when some event has occurred which
‘deprive[s] the controversy of its life’ ” ’ ”].) Thus, regardless of whether plaintiffs
sought injunctive or declaratory relief (or both) in connection with their third, fourth, and
fifth causes of action, the trial court properly ruled those causes of action seeking only
equitable relief were moot in light of Executive Order N-07-21, which ended the actual
controversy between the parties. (See Brach v. Newsom (9th Cir. 2022) 38 F.4th 6, 11
(en banc) [action by parents seeking declaratory judgment against Governor Newsom’s
suspension of in-person schooling due to COVID-19 was moot, because “Governor
Newsom has rescinded the challenged executive orders” and “there is no longer any state
order for the court to declare unconstitutional or to enjoin”].)
D. Monetary Damages
Equitable relief and monetary damages are distinct types of relief. Plaintiffs must
articulate whether they seek one, the other, or both. A plaintiff who expressly seeks one
type of relief does not necessarily seek the other. (Cf. Mendoza v. Ruesga (2008) 169
Cal.App.4th 270, 284-285 [equitable relief and the assessment of damages are different
types of relief that may be separately authorized by relevant legal authority].) That
plaintiffs broadly, in their words, “argued against the uncompensated public use of their
property” by defendants, was not a clear articulation they sought monetary damages for
such conduct. Because plaintiffs did not seek monetary damages as a form of relief in the
complaint and did not articulate a desire for such relief in opposition to the demurrer, the
trial court properly ruled their action was moot.
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II
Exceptions to Mootness
Plaintiffs next contend the trial court abused its discretion when it did not apply an
exception to the mootness doctrine. Defendants disagree. So do we.
A court has discretion to decide an otherwise moot case if: (1) the case raises an
issue of “broad public interest that is likely to recur, and . . . may otherwise . . . evade
review” (People v. Harrison (2013) 57 Cal.4th 1211, 1218); (2) the controversy between
the parties may recur; or (3) a material question remains for the court’s determination
(Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1033-
1034; Epstein v. Superior Court (2011) 193 Cal.App.4th 1405, 1411). And this
discretion lies against the backdrop of Code of Civil Procedure section 1061, which
provides that a court may refuse to exercise its discretion “in any case where its
declaration or determination is not necessary or proper at the time under all the
circumstances.”
Under abuse of discretion review, we ask whether the relevant decision exceeded
the bounds of reason. An appellate court should not reverse a trial court’s discretionary
decision merely because of a difference of opinion. (See Christian Research Institute v.
Alnor (2008) 165 Cal.App.4th 1315, 1323; People v. Cross (2005) 127 Cal.App.4th 63,
73.)
A. Issue of Broad Public Interest Likely to Recur and Evading Review
Plaintiffs contend restrictions similar to those they challenged in their action are
likely to recur. Defendants disagree, arguing a recurrence is not “ ‘likely’ ” and the
plaintiffs’ claims “no longer” present an issue of broad public interest, “even if they
once” did. We agree with defendants the likelihood of recurrence is too speculative to
conclude the trial court abused its discretion by not invoking this mootness exception.
We also conclude there is little reason to believe any future recurrence of the issue will
evade judicial review.
7
In National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, due to a
record-breaking crop and record-breaking production, the market for dessert wine did not
match mounting surpluses. (Id. at p. 743.) The director of the Department of Food and
Agriculture (the director) issued a marketing order essentially prohibiting the sale of
dessert wine at less than cost. (Id. at p. 744.) An association of wine bottlers obtained
injunctive relief, and by the time the appellate court considered the director’s challenge to
that relief, the director had terminated the relevant order and supplemental orders. (Id. at
pp. 744-746.) After ruling the matter moot, the appellate court concluded the likelihood
of recurrence of the circumstances giving rise to the alleged issue of public interest was
“highly speculative,” explaining: “In the present case, it is highly speculative whether
the issue will come up again. First, there must be a year where over-production produces
a chaotic market. Second, the director must decide to meet the situation by enacting just
such another order which is extremely doubtful now that the features objectionable to the
parties have been presented and litigated to this point. Third, the required number of
processors must assent to the order.” (Id. at p. 747.)
Likewise here, the question whether the circumstances giving rise to plaintiffs’
action will recur is highly speculative. Assuming that, as plaintiffs posit, “COVID-19 is
not the last pandemic” California will face, it is too far a leap of logic to also assume that
whoever is Governor of California when the next pandemic strikes will decide to prevent
the spread of that disease by eliminating or restricting sit-down dining in commercial
establishments. We simply do not know what a future pandemic will look like, or what
tools policymakers will have when addressing it.
And to the extent plaintiffs argue similar future restrictions are likely due to
COVID-19, we are unpersuaded. (Cf. Brach v. Newsom, supra, 38 F.4th at p. 15 [“The
challenged orders have long since been rescinded . . . and the trajectory of the pandemic
has been altered by the introduction of vaccines . . . and expanded treatment options”].)
8
Further, plaintiffs undermine their argument by omitting in their briefing any
discussion of the evading review element often articulated as part of this exception to
mootness. (See People v. Harrison, supra, 57 Cal.4th at p. 1218; In re Schuster (2019)
42 Cal.App.5th 943, 952 [“Many formulations of the public interest exception to the
mootness doctrine include the phrase ‘may evade review’ [citation] or ‘yet evade
review’ ”; “[t]hat a controversy may be so short lived as to evade normal appellate review
is a strong reason to decide an issue although it is technically moot”]; Ruelas v. Superior
Court (2015) 235 Cal.App.4th 374, 383 [appellant’s burden on appeal to demonstrate
trial court error].) There is insufficient reason to conclude that a future controversy like
the one at bench will be so short lived that it will evade judicial review. (Cf. In re Webb
(2019) 7 Cal.5th 270, 273-274 [exercising discretion to decide moot case regarding bail
release conditions, because it presented a question of statewide general public concern
and because “[q]uestions involving release on bail especially tend to evade review”];
Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [exercising discretion to
decide moot case raising “important issues about the fundamental rights of incompetent
conservatees” and “the corresponding limitations on conservators’ power to withhold
life-sustaining treatment,” which issues “tend to evade review because they typically
concern persons whose health is seriously impaired”].)
B. Recurrence of the Controversy Between the Parties
Because the question whether the circumstances giving rise to plaintiffs’ action
will recur is highly speculative, so is the question whether the instant controversy
between the parties will recur.
C. Remaining Material Questions
Plaintiffs argue “causes [of action] 1 through 11 of the complaint are material
questions,” and suggest the matter of their “tarnished” “reputation[s] as reliable
employers and service providers” also presents a material question. We disagree.
9
“A material question exists when the judgment, if left unreversed, would preclude
a party from litigating its liability on an issue still in controversy.” (Viejo Bancorp, Inc.
v. Wood (1989) 217 Cal.App.3d 200, 205.) Here, plaintiffs’ first argument is a
conclusory assertion and a classic example of the problem of an exception that swallows
the rule. If the mere presence of a cause of action could satisfy the “material questions”
mootness exception, nearly every moot cause of action would qualify for this exception.
Had plaintiffs sought damages, that might have presented a material question, but they
did not. (See Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325,
330 [“[t]his issue of damages is plainly a ‘material issue for the court’s determination’ ”
even “though the other questions may be moot as a result of the new collective
bargaining agreement”].) And plaintiffs’ suggestion that reputational damage to a
business presents a material question is unsupported by any citation to authority. (Cf. In
re D.P. (2023) 14 Cal.5th 266, 277 [though a court finding that “a parent engaged in
abuse or neglect of a child” in the dependency context “is generally stigmatizing,
complaining of ‘stigma’ alone is insufficient to sustain an appeal” if the stigma is not
“paired with some effect on the [parent’s] legal status that is capable of being redressed
by a favorable court decision”]; People v. Delong (2002) 101 Cal.App.4th 482, 486-489
[in the criminal context, clearing one’s name may serve as an exception permitting
review of a moot appeal].)
Accordingly, the trial court did not abuse its discretion when it did not apply an
exception to the mootness doctrine.
III
Leave to Amend
A. Standard of Review
If a demurrer was sustained without leave to amend, we determine whether there is
a reasonable possibility the relevant defect in the complaint can be cured by amendment,
with plaintiff bearing the burden of proving such reasonable possibility. If a plaintiff
10
does not carry that burden, the trial court has not abused its discretion, and we affirm.
(Munoz v. Patel (2022) 81 Cal.App.5th 761, 771.) The burden is “not pro forma.” To
satisfy it, a plaintiff must present clear and specific factual allegations that show how the
proposed amendment will cure the relevant defect. (Green Valley Landowners Assn. v.
City of Vallejo (2015) 241 Cal.App.4th 425, 432; Goodman v. Kennedy (1976) 18 Cal.3d
335, 349 [plaintiff’s burden to demonstrate that the trial court abused its discretion by
showing “in what manner [plaintiff] can amend [the] complaint and how that amendment
will change the legal effect of [the] pleading”].) And while a plaintiff can try to make
that showing for the first time in the reviewing court (Performance Plastering v.
Richmond American Homes of California (2007) 153 Cal.App.4th 659, 667-668), it
follows that a defendant can challenge the showing in the reviewing court.
B. Analysis
Observing their complaint contained “numerous assertions” they “were damaged
by” defendants’ acts, plaintiffs argue the trial court erred by sustaining the demurrer
without leave to amend. Defendants contend any amended claim for monetary damages
“would be futile,” because plaintiffs cannot demonstrate a reasonable probability they can
clear several procedural and substantive hurdles. For example, defendants contend they
are immune from damages resulting from their policy decisions under Government Code
section 820.2, which provides: “Except as otherwise provided by statute, a public
employee is not liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him, whether or not
such discretion be abused.” (Gov. Code, § 820.2; see Caldwell v. Montoya (1995) 10
Cal.4th 972, 983, fn. 5 [immunity for discretionary acts for “basic policy decisions”
under § 820.2 “extends to fundamental decisions within the executive or administrative
authority of the agency or official”].) Plaintiffs argue defendants forfeited this statutory
immunity argument on appeal by failing to raise it in the trial court. As explained above,
we disagree.
11
On appeal, plaintiffs bear the burden of demonstrating there is a reasonable
probability an amendment could cure the defect in their pleading and defendants are free
to respond to those new theories about possible amendments. Here, defendant’s statutory
immunity argument is in response to plaintiff’s effort to cure the mootness defect in their
action by seeking monetary damages. On the merits, plaintiffs argue “it is reversible
error to sustain a demurrer to the complaint without leave to amend where it could not be
said at the pleading stage what type of functions (ministerial or discretionary) the
defendants performed.” This argument contains no specific factual allegations
demonstrating how a proposed amendment to the complaint would overcome defendants’
statutory immunity argument. Accordingly, we conclude the trial court did not abuse its
discretion in denying leave to amend. (See Green Valley Landowners Assn., supra, 241
Cal.App.4th at p. 443 [concluding the trial court did not abuse its discretion in denying
leave to amend where plaintiff “fail[ed] to set forth in sufficient detail how it would
amend its complaint to correct the multiple defects noted”].)
12
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
McADAM, J.
Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
13