Application — Wendy Gish, et al., Applicants v. Gavin Newsom, Governor of California, et al.
Supreme Court briefJan 7, 2021
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No. __-____
In the
Supreme Court of the United States
WENDY GISH, PATRICK SCALES, JAMES DEAN MOFFATT, AND BRENDA WOOD,
Applicants,
v.
GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER
BECERRA, in his official capacity as the Attorney General of California,
Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States Supreme
Court and Circuit Justice for the Ninth Circuit
Appendix to Emergency Application
for a Writ of Injunction
RONALD D. COLEMAN
Counsel of Record
DHILLON LAW GROUP, INC.
8 Hillside Avenue – Suite 103
Montclair, NJ 07042
(973-298-1723
rcoleman@dhillonlaw.com
HARMEET DHILLON
MARK P. MEUSER
DHILLON LAW GROUP, INC.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
harmeet@dhillonlaw.com
mmeuser@dhillonlaw.com
Counsel for Applicants Wendy Gish, Patrick Scales, James Dean Moffatt, and
Brenda Wood
TABLE OF CONTENTS
Appendix 1: Ninth Circuit Order, Dated December 23, 2020
App.1
Appendix 2: District Court Civil Minutes Order, Dated April 23, 2020
App. 6
Appendix 3: District Court Civil Minutes Order, Dated July 8, 2020
App. 14
Appendix 4: District Court Civil Minutes Order, Dated October 9, 2020
App. 21
Appendix 5: Executive Order N-33-20, Dated March 19, 2020
App. 27
Appendix 6: Executive Order N-60-20, Dated May 4, 2020
App. 30
Appendix 7: Order of the State Public Health Officer,
Dated March 19, 2020
App. 34
Appendix 8: Essential Critical Infrastructure Workers,
Dated March 22, 2020
App. 36
Appendix 9: Order of the State Public Health, Dated May 7, 2020
App. 51
Appendix 10: COVID-19 Industry Guidance for Places of Worship,
Dated May 25, 2020
App. 55
Appendix 11: Guidance of Closure of Sectors, Dated July 13, 2020
App. 69
Appendix 12: County Variance Info, Updated August 17, 2020
App. 81
Appendix 13: Statewide Public Health Officer Order,
Dated August 28, 2020
App. 91
Appendix 14: Blueprint for a Safer Economy, Updated December 8, 2020
App. 95
Appendix 15: CDPH Guidance for Gatherings, Dated November 13, 2020
App.106
Appendix 16: Blueprint for a Safer Economy,
Updated November 13, 2020
App. 112
1
Appendix 17: Regional Stay At Home Order, Dated December 3, 2020
App. 119
Appendix 18: Industry Guidance to Reduce Risk, Updated December 8, 2020 App. 124
Appendix 19: Blueprint for Safer Economy, Updated December 11, 2020
App. 157
Appendix 20: Order Denying Application for Emergency Injunction
Pending Appeal
App. 168
2
APPENDIX 1
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APPENDIX 2
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
EDCV 20-755 JGB (KKx)
Date April 23, 2020
Title Wendy Gish, et al. v. Gavin Newsom, et al.
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order DENYING Plaintiffs’ Emergency Request for Temporary
Restraining Order (Dkt. No. 8) (IN CHAMBERS)
Before the Court is an Emergency Request for Temporary Restraining Order filed by
Plaintiffs Patrick Scales, Wendy Gish, James Dean Moffatt, and Brenda Wood. (“Request,”
Dkt. No. 8.) The Court held a hearing on the Request on April 22, 2020. After considering the
papers filed in support of and in opposition to the Request and argument presented at the
hearing, the Court DENIES the Request.
I. BACKGROUND
On April 13, 2020, Plaintiffs filed their complaint against Defendants Xavier Becerra and
Gavin Newsom (collectively, “State Defendants”); Chad Bianco, Jeff Hewitt, Kevin Jeffries,
George Johnson, Cameron Kaiser, V. Manuel Perez, Karen Spiegel, and Chuck Washington
(collectively, “Riverside Defendants”); Erin Gustafson, John McMahon, Robert A. Lovingood,
Janice Rutherford, Dawn Rowe, Curt Hagman, and Josie Gonzales (collectively, “San
Bernardino Defendants”). (“Complaint,” Dkt. No. 1.) The Complaint alleges eleven causes of
action: (1) Violation of Free Exercise Clause of First Amendment to U.S. Constitution; (2)
Violation of Establishment Clause of First Amendment to U.S. Constitution; (3) Violation of
Free Speech Clause of First Amendment to U.S. Constitution; (4) Violation of First Amendment
Freedom of Assembly Clause; (5) Violation of Due Process Clause of Fourteenth Amendment to
U.S. Constitution; (6) Violation of Due Process Clause of Fourteenth Amendment to U.S.
Constitution; (7) Violation of Equal Protection Clause of Fourteenth Amendment to U.S.
Constitution; (8) Right to Liberty (Cal. Const. Art. 1, § 1); (9) Freedom of Speech (Cal. Const.
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Art. 1, § 2); (10) Freedom of Assembly (Cal. Const. Art. 1, § 3); and (11) Free Exercise and
Enjoyment of Religion (Cal. Const. Art. 1, § 4).
Plaintiffs filed the Request on April 13, 2020, the same day they filed the Complaint.
(Request.) In support of the Request, Plaintiffs filed:
Declaration of Mark Meuser (“Meuser Declaration,” Dkt. No. 8-2);
Declaration of Wendy Gish (“Gish Declaration,” Dkt. No. 8-3);
Declaration of James Moffatt (“Moffatt Declaration,” Dkt. No. 8-4);
Declaration of Patrick Scales (“Scales Declaration,” Dkt. No. 8-5);
Declaration of Brenda Wood (“Wood Declaration,” Dkt. No. 8-6);
Defendants opposed the Request on April 17, 2020. (“State Opposition,” Dkt. No. 13;
“Riverside Opposition,” Dkt. No. 15; “San Bernardino Opposition,” Dkt. No. 18.) In support
of the State Opposition, State Defendants filed the Declaration of Todd Grabarsky. (Grabarsky
Declaration,” Dkt. No. 13-1.) In support of the Riverside Opposition, Riverside Defendants
filed:
Request for Judicial Notice (“Riverside RJN,” Dkt. No. 15-1);
Jason Anderson (“Anderson Declaration,” Dkt. No. 15-2);
Declaration of Kelly A. Moran, (“Moran Declaration,” Dkt. No. 15-3);
Declaration of Dr. Cameron Kaiser (“Kaiser Declaration,” Dkt. No. 15-4.)
In support of the San Bernardino Opposition, San Bernardino Defendants filed a request for
judicial notice. (“San Bernardino RJN,” Dkt. No. 18-1.) The Court held a telephonic hearing on
April 22, 2020.
II.
REQUESTS FOR JUDICIAL NOTICE
Riverside Defendants and San Bernardino Defendants separately submit unopposed
requests for judicial notice. (See Riverside RJN; San Bernardino RJN.) A court may take judicial
notice of an adjudicative fact not subject to “reasonable dispute,” either because it is “generally
known within the territorial jurisdiction of the trial court,” or it is capable of accurate and ready
determination by resort to sources whose “accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201. Under Federal Rule of Evidence 201, “[a] court must take judicial notice if a party
requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).
Judicial notice is appropriate here. The documents at issue are publicly available and not
subject to reasonable dispute. Moreover, Defendants request only that the Court take judicial
notice of the contents of the documents, not of the truth of those contents. Accordingly, the
Court GRANTS the Riverside RJN and the San Bernardino RJN.
III. FACTS
On December 31, 2019, China reported incidents of a pneumonia of unknown cause
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to the World Health Organization. Since then, that infectious disease, which came to be known
as coronavirus disease 2019 (COVID-19), has swept the globe, infecting millions and killing
nearly two hundred thousand people.1
Defendant Newsom, the Governor of California, declared a State of Emergency in
California on March 4, 2020. (Complaint ¶ 30; Grabarsky Declaration, Exhibit 1.) On March 19,
2020, the Defendant Newsom issued Executive Order N-33-20, which directed all California
residents to heed the State’s public health directives relating to COVID-19, including the March
19, 2020 Order of the State Public Health Officer (“State Order”). (Complaint ¶ 31; Grabarsky
Declaration, Exhibit 3.) The State Order requires “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.” (Grabarsky Declaration, Exhibit 3.) On March 22,
2020, the Public Health Officer designated a list of “Essential Critical Infrastructure Workers,”
including “[f]aith based services that are provided through streaming or other technology.”
(Grabarsky Declaration, Exhibit 4.)
Defendant Kaiser, Riverside County’s Public Health Officer, issued a Declaration of
Local Health Emergency in Riverside County on March 8, 2020. (Kaiser Declaration ¶ 10.) On
April 6, 2020, Defendants Kaiser and Johnson issued an Amended Order of the Health Officer
for the County of Riverside and of the County Executive Officer as Director of Emergency
Services (“Riverside Order”). (Complaint ¶ 62; Kaiser Declaration ¶ 10, Exhibit I.) The
Riverside Order prohibits “[a]ll public or private gatherings . . . including, but not limited to an
auditorium, . . . church, . . . or any other indoor or outdoor space used for any non-essential
purpose including, but not limited to . . . church . . . .” (Complaint ¶ 63; Kaiser Declaration,
Exhibit I.) Consistent with the State Order, the Riverside Order exempts essential business,
including “courts of law, medical providers . . . daycare and child care . . . [and] necessary
shopping at fuel stations, stores or malls,” provided that a “state and federal guidelines for
infection control” are observed. (Complaint ¶ 64; Kaiser Declaration Exhibit I.)
The County of San Bernardino Board of Supervisors declared a Local Health Emergency
in San Bernardino County on March 10, 2020. (San Bernardino RJN, Exhibits F and G.) On
April 7, 2020, Defendant Gustafson, the San Bernardino Health Officer, signed the Order of the
Health Officer of the County of San Bernardino for the Control of COVID-19 (“San Bernardino
Order”). (Complaint ¶ 36; San Bernardino RJN, Exhibit I.) The San Bernardino Order
“allow[s] faith based services that are provided through streaming or other technology, while
individuals remain in their homes, but does not allow individuals to leave their home for driving
parades or drive-up services, or for picking up non-essential items.” (Complaint ¶ 37; San
Bernardino RJN, Exhibit I.)
World Health Organization, Coronavirus Disease 2019 Situation Report, April 23, 2020
https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200423-sitrep-94covid-19.pdf?sfvrsn=b8304bf0_4
1
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IV. LEGAL STANDARD
The purpose of a temporary restraining order is to preserve the status quo and prevent
irreparable harm until a hearing may be held on the propriety of a preliminary injunction. See
Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). The standard for
issuing a temporary restraining order is identical to the standard for issuing a preliminary
injunction. Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323
(N.D. Cal. 1995); see Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d
832, 839 n.7 (9th Cir. 2011).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit employs the “serious
questions” test, which states “‘serious questions going to the merits’ and a balance of hardships
that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as
the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in
the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
“A preliminary injunction is an ‘extraordinary and drastic remedy.’ It should never be awarded
as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citation omitted). When seeking a
temporary restraining order through an ex parte application, a plaintiff must further show that he
is without fault in creating the crisis necessitating the bypass of regular motion procedures. See
Mission Power Eng’g Co. v. Cont’l Gas Co., 883 F. Supp. 488, 492–93 (C.D. Cal. 1995). The
propriety of a temporary restraining order, in particular, hinges on a significant threat of
irreparable injury, Simula, Inc. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999), that must be
imminent in nature, Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
V.
DISCUSSION
Plaintiffs request that the Court enjoin enforcement of the State Order, Riverside Order,
and San Bernardino Order (collectively, “Orders”) to “Plaintiffs’ engagement in religious
services, practices, or activities at which the Center for Disease Control’s social distancing
guidelines are followed.” (Request at 24.) To succeed, Plaintiffs must demonstrate that they
are likely to succeed on their claims that the Orders violate their constitutional rights and
demonstrate that the other factors weigh in favor of granting the temporary restraining order.
A. Success on the Merits or Serious Questions
Plaintiffs assert that the Orders violate their constitutionally protected rights, including
their right to the free exercise of religion. (Request at 9–21.) In response, Defendants argue that
Plaintiffs will not succeed on their constitutional claims for two reasons: First, as acts of the
executive in response to a national emergency, the Orders are subject to only minimal scrutiny,
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which they easily survive.2 (State Opposition at 7–14.) Second, even absent consideration of
greater leeway afforded to executive acts during a state of emergency, the Orders do not violate
Plaintiffs’ rights under traditional constitutional analysis. (State Opposition at 14–19; Riverside
Opposition at 16–34; San Bernardino Opposition at 11–17.)
1. Exercise of Executive Powers During State of Emergency
State Defendants argue that because the Orders are temporary executive actions taken in
response to a national emergency, they are entitled to substantial judicial deference and not
subject to traditional constitutional scrutiny. (State Opposition at 7–14.) The Court agrees:
Defendants have a right to protect California residents from the spread of COVID-19—even if
those protections temporarily burden constitutional rights to a greater degree than normally
permissible.
The Supreme Court held over a century ago that “a community has the right to protect
itself against an epidemic of disease which threatens the safety of its members.” Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). The COVID-19 pandemic threatens
the lives of all Californians: indeed, nearly 1,500 have already died.3 The virus has proven to be
extremely contagious—it is airborne and can linger on surfaces for days.4 Because asymptomatic
and pre-symptomatic carriers of the virus can infect others, a belief that one “has never had or
contracted the coronavirus . . . been at any time exposed to the danger of contracting it . . . and
has never been in close proximity to any locality where said coronavirus has or have existed” is
largely meaningless. (See Complaint ¶¶ 58, 79.) Anyone could be an unknowing, undetectable
vector for the virus at any time. For these reasons, government and health officials have
struggled to contain the virus. Without a vaccine, measures limiting physical contact between
citizens, such as the Orders, are widely recognized as the only way to effectively slow the spread
of the virus.
Undoubtedly, the Orders—and the similar orders in effect around the country—restrict
the rights and freedoms normally enjoyed by citizens. The residents of California are confined to
their homes, unable to gather with friends and family, unable to attend political rallies, unable to
enjoy art and recreation, and largely unable to work or go to school. The Orders also prevent
Plaintiffs (and all other California residents) from gathering for in-person worship or laying hands
upon each other. Because Plaintiffs’ religious beliefs compel them to do these things, the Orders
2
Although only the State Defendants advance this argument, the Court will apply it to all
three orders.
3
Tracking Coronavirus in California, Los Angeles Times
https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/ (last
accessed April 23, 2020.)
4
Neeltje van Doremalen, Ph.D., et al., Aerosol and Surface Stability of SARS-CoV-2 as
Compared with SARS-CoV-1, N. England J. Med. 2020; 382:1564-1567
https://www.nejm.org/doi/full/10.1056/NEJMc2004973 (last accessed April 23, 2020.)
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do burden Plaintiffs’ unrestrained exercise of their religion. But the Constitution does not
guarantee “an absolute right in each person to be, at all times and in all circumstances, wholly
freed from restraint.” Jacobson, 197 U.S. at 26. Indeed, “[t]he right to practice religion freely
does not include liberty to expose the community . . . to communicable disease.” Prince v.
Massachusetts, 321 U.S. 158, 166–67 (1944).
Recognizing that the need to protect the public may trump individual rights during a
crisis, the Supreme Court has held that states and municipalities have greater leeway to burden
constitutionally protected rights during public emergencies:
In every well-ordered society charged with the duty of conserving the safety of its
members the rights of the individual in respect of his liberty may at times, under
the pressure of great dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may demand.
Jacobson, 197 U.S. at 29; see also United States v. Caltex, 344 U.S. 149 (1952) (acknowledging
that “in times of imminent peril—such as when fire threatened a whole community—the
sovereign could, with immunity, destroy the property of a few that the property of many and the
lives of many more could be saved”). When responding to the COVID-19 pandemic, therefore,
Defendants “may implement emergency measures that curtail constitutional rights so long as the
measures have at least some ‘real or substantial relation’ to the public health crisis and are not
‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’” In re
Abbott, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (quoting Jacobson, 197 U.S. at 31). In
other words, during an emergency, traditional constitutional scrutiny does not apply. Instead,
any measures that limit or suspend constitutional rights (1) must have a “real or substantial
relation” to the crisis and (2) must not represent “plain, palpable” invasions of clearly protected
rights. Jacobson, 197 U.S. at 31.
The Orders easily meet that test. First, they have a substantial relation to the COVID-19
crisis: they require the physical distancing that is needed to slow the spread of the virus. Second,
there is no “plain, palpable invasion” of Plaintiffs’ free exercise of religion. While Plaintiffs are
unable to gather together in-person, they are free to gather virtually or over the phone. They are
also free to gather in-person with the members of their household. They remain free to practice
their religion in whatever way they see fit so long as they remain within the confines of their own
homes. Although physical contact with others is curtailed, a wide swath of religious expression
remains untouched by the Orders. The Orders, therefore, do not represent a plain or palpable
invasion of the general right to free exercise of religion. Accordingly, the Orders are likely a
permissible exercise of executive authority during a national emergency.
2. Traditional Constitutional Analysis
Because the Orders survive the minimal scrutiny required where executive action taken in
response to an emergency, the Court need not determine whether the Orders likewise survive
traditional constitutional analysis. But they do: the Request must also be denied because the
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Orders likely do not impermissibly infringe on Plaintiffs’ constitutional rights even when
applying the traditional constitutional scrutiny.
a. Free Exercise of Religion
Plaintiffs argue that the Orders target religion and must therefore be subjected to a strict
scrutiny analysis. (Request at 9–11.) Defendants respond that the Orders are neutral and
generally applicable and therefore only rational basis review applies. (State Opposition 15–16;
Riverside Opposition at 16–19; San Bernardino Opposition at 11–13.) “In assessing neutrality
and general applicability, courts evaluate both ‘the text of the challenged law as well as the effect
. . . in its real operation.” Parents for Privacy v. Barr, 949 F.3d 1210, 1234 (9th Cir. 2020).
The Orders are neutral on their faces: they “make no reference to any religious practice,
conduct, belief, or motivation.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015).
While they do list faith-based gatherings as a type of in-person gathering that is prohibited, faithbased gatherings are referenced as an example—they are not the target of the Orders. (See e.g.,
Kaiser Declaration Exhibit I (prohibiting all gatherings including those for “church”).) Facial
neutrality does not require freedom from any mention of religion, instead “the minimum
requirement of neutrality is that a law not discriminate on its face.” Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). Because the orders
apply to both religious and secular gatherings, they do not discriminate, and are therefore facially
neutral.
The Orders are also neutral in operation: they apply to both religious and secular conduct
and do not “substantially underinclude nonreligiously motivated conduct that might endanger
the same governmental interest that the law is designed to protect.” See Stormans, 794 F.3d at
1079. The Supreme Court has long recognized that “[o]fficial action that targets religious
conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of
facial neutrality.” Church of the Lukumi Babalu Aye, 508 U.S. at 534. Plaintiffs have presented
no evidence that the Orders target religious conduct over secular conduct. And a review of the
Orders demonstrates that both secular and religious conduct are prohibited equally. The
majority of the prohibited conduct is secular: schools are closed, restaurants are shuttered,
concerts and sporting events are canceled; citizens cannot visit public recreation spaces or gather
with friends who live outside of their household; non-essential workers fortunate enough to still
have jobs must work from home. Far from singling out religious conduct for additional
restrictions, the State Order identifies workers preparing religious videoconferences as essential
workers—an exception that facilitates religious conduct. Similar exceptions have not been made
for sports, concerts, or non-essential work events. The Orders, therefore, are not restrictions
against religion in disguise. They are generally applicable restrictions on gatherings of all kinds.
Plaintiffs argue that the Orders are underinclusive of secular activities that may also
contribute to the spread of COVID-19 because they allow grocery stores, fast food restaurants,
and marijuana dispensaries to remain open. (Request at 10.) But these are all essential services:
without access to the food and medicines sold at these locations, more citizens would become ill
or die. And despite social distancing the virus is spreading at these locations—grocery store
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employees are falling ill and dying.5 If the state applies the same rules to in-person religious
gatherings as it does to grocery stores, people will get sick and die from attending religious
gatherings just as they are dying from working in grocery stores.
Moreover, because the risk of transmission increases with every out-of-home contact, it is
necessary to suspend non-essential activities so that essential functions can be less dangerous.
Many older and immunocompromised people must leave their homes to purchase food and
medicine. Grocery store employees, food preparers, delivery drivers, pharmacists, and other
essential workers must go to work to ensure that California residents have what they need to
survive. These individuals risk contracting the virus when performing these essential tasks. If
those that they encounter engage in non-essential contacts, the risk of transmission increases.
But if everyone limits their out-of-home contacts to only essential tasks, the risk decreases.
When we all reduce our contacts to the minimum possible level, the rates of transmission go
down. In sum, Californians need to stay home whenever possible to protect those who cannot.
Finally, as Defendants argued at the hearing, constitutional analysis only requires that the
Court compare the prohibited religious conduct with analogous secular conduct when assessing
underinclusivity. See Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th Cir. 2015) (holding
that a law is only fatally underinclusive if it prohibits religious conduct but not “comparable
secular conduct”). An in-person religious gathering is not analogous to picking up groceries,
food, or medicine, where people enter a building quickly, do not engage directly with others
except at points of sale, and leave once the task is complete. Instead, it is more analogous to
attending school or a concert—activities where people sit together in an enclosed space to share a
communal experience. Those activities are prohibited under the Orders. Because the Orders
treat in-person religious gatherings the same as they treat secular in-person communal activities,
they are generally applicable.
Because the Orders are facially neutral and generally applicable, they are subject to
rational basis review. Stormans, Inc., 794 F.3d at 1075–76. And they easily survive rational basis:
the social distancing measures implemented by the Order are rationally related to slowing the
spread of COVID-19—a state interest that is not only legitimate but compelling. Accordingly,
the Orders likely do not violate the Free Exercise Clause.
b. Establishment of Religion
A government action violates the Establishment Clause if it lacks a “secular legislative
purpose” or endorses religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); see also Trunk
v. City of San Diego, 629 F.3d 1099, 1106 (9th Cir. 2011) (noting that “the Supreme Court
5
Dalvin Brown, COVID-19 Claims Lives of 30 Grocery Store Workers, Thousands More May
Have It, Union Says, USA Today,
https://www.usatoday.com/story/money/2020/04/14/coronavirus-claims-lives-30-grocerystore-workers-union-says/2987754001/ (last accessed April 23, 2020.)
(continued . . . )
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essentially has collapsed the[] last two prongs [of the test articulated in Lemon] to ask whether
the challenged governmental practice has the effect of endorsing religion.”) The Orders do
neither. First, they serve the important secular purpose of slowing the spread of COVID-19.
Second, they do not endorse any religion: the order bans gatherings for all religions along with
secular gatherings.6 Accordingly, the Orders likely do not violate the Establishment Clause.
c. Other Alleged Constitutional Violations
Plaintiffs make several other claims for violations of their rights under the U.S. and
California Constitutions. (Request at 12–20.) Each of these, however, is premised on Plaintiffs’
argument that the Orders impermissibly restrict their religious exercise. (See, e.g., Request at 13
(arguing that the Orders are an unconstitutional prior restraint on speech because religious
worship is protected speech).) Because the Court concludes that the Orders do not
impermissibly restrict Plaintiffs’ free exercise of religion, Plaintiffs’ other claims likely fail as
well.
B. Remaining TRO Factors
Defendants have shown that because the Orders are likely a proper exercise of executive
authority in a state of emergency they are entitled to enhanced deference, even where they
infringe on typically protected rights. Moreover, even applying a traditional constitutional
analysis, Plaintiffs’ claims are unlikely to succeed. Accordingly, Plaintiffs are not likely to
succeed on the merits of their claims, and the Court need not consider the remaining factors.
VI.
CONCLUSION
For the reasons above, the Court DENIES Plaintiffs’ Request.
IT IS SO ORDERED.
6
Plaintiffs argue that special accommodations were made by the Riverside Defendants
and the San Bernardino Defendants for Christians celebrating Easter. (Request at 2.) However,
they do not seek to enjoin enforcement of any Easter exception. And they could not: Easter has
passed. Accordingly, the Court need not determine whether the Easter exceptions violated the
Establishment Clause.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
EDCV 20-755 JGB (KKx)
Date July 8, 2020
Title Wendy Gish, et al. v. Gavin Newsom, et al.
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order (1) GRANTING State Defendants’ Motion to Dismiss (Dkt. No.
67); (2) GRANTING San Bernardino Defendants’ Motion to Dismiss
(Dkt. No. 68); (3) GRANTING Riverside Defendants’ Motion to
Dismiss (Dkt. No. 66); and (4) VACATING the July 13, 2020 Hearing
(IN CHAMBERS)
Before the Court are three Motions to Dismiss under Federal Rule of Civil Procedure
12(b)(6): (1) a motion to dismiss filed by Defendants Xavier Becerra and Gavin Newsom
(collectively, “State Defendants”) (“Sate Motion,” Dkt. No. 67); (2) a motion to dismiss filed
by Defendants Jeff Hewitt, Kevin Jeffries, Karen Spiegel, Chad Bianco, George Johnson,
Cameron Kaiser, V. Manuel Perez, Chuck Washington filed by Defendants Jeff Hewitt, Kevin
Jeffries, Karen Spiegel, Chad Bianco, George Johnson, Cameron Kaiser, V. Manuel Perez, and
Chuck Washington (collectively, “Riverside Defendants”) (“Riverside Motion,” Dkt. No. 66);
and (3) a motion to dismiss filed by Defendants Josie Gonzales, Erin Gustafson, Curt Hagman,
Robert Lovinggood, John McMahon, Dawn Rowe, and Janice Rutherford (collectively, “San
Bernardino Defendants”) (“San Bernardino Motion,” Dkt. No. 68.) The Court determines
these matters are appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15.
After considering all papers filed in support of and in opposition to the Motions, the Court
GRANTS Defendants’ Motions. The July 13, 2020 hearing is VACATED.
I. BACKGROUND
On April 13, 2020, Plaintiffs filed their complaint against Defendants Xavier Becerra and
Gavin Newsom (collectively, “State Defendants”); Chad Bianco, Jeff Hewitt, Kevin Jeffries,
George Johnson, Cameron Kaiser, V. Manuel Perez, Karen Spiegel, and Chuck Washington
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(collectively, “Riverside Defendants”); Erin Gustafson, John McMahon, Robert A. Lovinggood,
Janice Rutherford, Dawn Rowe, Curt Hagman, and Josie Gonzales (collectively, “San
Bernardino Defendants”). (“Complaint,” Dkt. No. 1.) The Complaint alleges eleven causes of
action: (1) Violation of Free Exercise Clause of First Amendment to U.S. Constitution; (2)
Violation of Establishment Clause of First Amendment to U.S. Constitution; (3) Violation of
Free Speech Clause of First Amendment to U.S. Constitution; (4) Violation of First Amendment
Freedom of Assembly Clause; (5) Violation of Due Process Clause of Fourteenth Amendment to
U.S. Constitution; (6) Violation of Due Process Clause of Fourteenth Amendment to U.S.
Constitution; (7) Violation of Equal Protection Clause of Fourteenth Amendment to U.S.
Constitution; (8) Right to Liberty (Cal. Const. Art. 1, § 1); (9) Freedom of Speech (Cal. Const.
Art. 1, § 2); (10) Freedom of Assembly (Cal. Const. Art. 1, § 3); and (11) Free Exercise and
Enjoyment of Religion (Cal. Const. Art. 1, § 4).
On April 23, 2020, the Court denied Plaintiffs’ request for a temporary restraining order
and preliminary injunction. (“TRO Order,” Dkt. No. 51.) On May 27, 2020, Defendants filed
these Motions. (State Motion; Riverside Motion; San Bernardino Motion.) Plaintiffs opposed
the Motions on June 22, 2020. (“Opposition,” Dkt. No. 72.) Defendants replied on June 29,
2020. (“San Bernardino Reply,” Dkt. No. 73; “State Reply,” Dkt. No. 74; “Riverside Reply,”
Dkt. No. 75.)
II.
JUDICIAL NOTICE
In support of the Motions, Defendants submit requests for judicial notice. (“State
Request,” Dkt. No. 69; “Riverside Request” Dkt. No. 66-1; “San Bernardino Request,” Dkt.
No. 68-1.) Plaintiffs do not object to the Requests.
A court may take judicial notice of an adjudicative fact not subject to “reasonable
dispute,” either because it is “generally known within the territorial jurisdiction of the trial
court,” or it is capable of accurate and ready determination by resort to sources whose “accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201. Under Federal Rule of Evidence 201, “[a]
court must take judicial notice if a party requests it and the court is supplied with the necessary
information.” Fed. R. Evid. 201(c)(2). Judicial notice is appropriate here. The documents at
issue are publicly available and not subject to reasonable dispute. Accordingly, the Court
GRANTS the Requests.
III. FACTUAL ALLEGATONS
Plaintiffs allege the following facts, which are assumed to be true for the purposes of this
motion.
Defendant Newsom, the Governor of California, declared a State of Emergency in
California on March 4, 2020. (Complaint ¶ 30.) On March 19, 2020, Newsom issued Executive
Order N-33-20, which directed all California residents to heed the State’s public health directives
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relating to COVID-19, including the March 19, 2020 Order of the State Public Health Officer
(“State Order”). (Id. ¶ 31.)
On April 6, 2020, Defendants Kaiser and Johnson issued an Amended Order of the
Health Officer for the County of Riverside and of the County Executive Officer as Director of
Emergency Services (“Riverside Order”). (Id. ¶ 62.) The Riverside Order prohibited “[a]ll
public or private gatherings . . . including, but not limited to an auditorium, . . . church, . . . or any
other indoor or outdoor space used for any non-essential purpose including, but not limited to . . .
church . . . .” (Id. ¶ 63.) Consistent with the State Order, the Riverside Order exempted
essential business, including “courts of law, medical providers . . . daycare and child care . . .
[and] necessary shopping at fuel stations, stores or malls,” provided that a “state and federal
guidelines for infection control” are observed. (Id. ¶ 64.)
On April 7, 2020, Defendant Gustafson, the San Bernardino Health Officer, signed the
Order of the Health Officer of the County of San Bernardino for the Control of COVID-19 (“San
Bernardino Order”). (Id. ¶ 36.) The San Bernardino Order “allow[ed] faith based services that
are provided through streaming or other technology, while individuals remain in their homes, but
does not allow individuals to leave their home for driving parades or drive-up services, or for
picking up non-essential items.” (Id. ¶ 37.)
Plaintiffs’ deeply held and sincere religious beliefs require them to worship in person.
(Id. ¶¶ 6–9.) They seek an order from this Court “enjoining and prohibiting Defendants from
enforcing the Orders” and “declaring that the Orders, facially and as-applied to Plaintiffs, violate
the First and Fourteenth Amendments to the U.S. Constitution and Article 1, Sections 1, 2, and 4
of the California Constitution.” (Id. ¶ 184.)
IV. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), a party may bring a
motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6)
must be read in conjunction with Federal Rule of Civil Procedure 8(a), which requires a “short
and plain statement of the claim showing that a pleader is entitled to relief,” in order to give the
defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Horosny v. Burlington Coat Factory, Inc., No.
15–05005, 2015 WL 12532178, at *3 (C.D. Cal. Oct. 26, 2015). When evaluating a Rule 12(b)(6)
motion, a court must accept all material allegations in the complaint — as well as any reasonable
inferences to be drawn from them — as true and construe them in the light most favorable to the
non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology
v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382,
1384 (9th Cir. 1994).
“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
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action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in the
complaint “must be enough to raise a right to relief above the speculative level.” Id.
To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570; Ashcroft v. Iqbal, 556 U.S. 662,
129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops
short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). The Ninth Circuit has clarified that (1) a complaint
must “contain sufficient allegations of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively,” and (2) “the factual allegations that are taken as true
must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing
party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011).
V.
DISCUSSION
A. Jurisdiction to Hear the Motions
Plaintiffs argue that the Court lacks jurisdiction to hear the Motions because they have
appealed the TRO Order. (Opposition at 6–7.) “The filing of a notice of appeal . . . confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects
of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982) (per curiam). However, it is well-settled that “an appeal from an interlocutory order does
not divest the trial court of jurisdiction to continue with other phases of the case.” Plotkin v.
Pacific Tel. and Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). An “appeal of an interlocutory
order does not ordinarily deprive the district court of jurisdiction except with regard to the
matters that are the subject of the appeal.” Britton v. Coop Banking Grp., 916 F.2d 1405, 1412
(9th Cir. 1990).
Plaintiffs have appealed the TRO Order, which found, among other things, that Plaintiffs
were not likely to succeed on the merits of their claims. (See TRO Order.) Accordingly, the
Court lacks jurisdiction to dismiss claims as insufficiently pleaded, as that issue is pending before
the Ninth Circuit.
However, the Court remains free to decide other issues, even if those issues result in the
dismissal of Plaintiffs’ claims. Plotkin illustrates this point. See Plotkin, 688 F.2d at 1292–93. In
that case, the district court denied the plaintiff’s preliminary injunction, finding plaintiff was not
likely to succeed for failure to exhaust administrative remedies. Id. at 1292. Plaintiff appealed.
Id. While the appeal was pending, the district court granted summary judgment, finding that
“even if the plaintiffs were not required to exhaust their administrative remedies, they would not
be entitled to the relief sought.” Id. The Ninth Circuit then rejected plaintiff’s argument that
the district court lacked jurisdiction to enter summary judgment, holding “that an appeal from an
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interlocutory order does not stay the proceedings, as it is firmly established that an appeal from
an interlocutory order does not divest the trial court of jurisdiction to continue with other phases
of the case.” Id. at 1293; see also Britton, 916 F.2d at 1412 (holding that a district court retained
jurisdiction to issue a default judgment while there was a pending interlocutory appeal regarding
denial of motion to compel arbitration).
Mootness was not decided by the Court in the TRO Order. It is therefore not before the
Ninth Circuit now. Accordingly, the Court retains jurisdiction to decide whether the case is now
moot.1 By deciding issues related to mootness, the Court is not altering its previous decision in
the TRO Order, instead, it “simply moving the case along consistent with its view of the case as
reflected in its [that order].” Britton, 916 F.2d at 1412.
B. Mootness
Defendants argue that Plaintiffs’ claims are moot because they are based on a prohibition
of in-person religious services that is no longer in effect. (State Motion at 8–10; San Bernardino
Motion at 7–8.) To survive a mootness challenge, Plaintiffs must show that “‘an actual
controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”
Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001) (quoting Arizonans
for Official English v. Arizona, 520 U.S. 43, 67 (1997)). On May 25, 2020, California issued
guidelines that allow for in-person religious gatherings. (State Request, Exhibit 1.) Accordingly,
the Orders that Plaintiffs seeks to enjoin no longer bind Plaintiffs and an injunction is
unnecessary.
Plaintiffs do not dispute that the absolute prohibition on in-person religious services is no
longer in effect. Instead, they argue that the case is not moot because several exceptions to the
mootness doctrine apply. (Opposition at 8–10.) First, they argue that the case is not moot
because the Court could issue “a declaration . . . that faith-based services should not be treated
more strictly than other activities, gatherings, or retail businesses.” (Id. at 8.) But if there is no
live controversy, such a declaration would be tantamount to an advisory opinion. See Seven
Words LLC, 260 F.3d at 1095 (holding that a claim is moot where plaintiff only “seeks an
advisory opinion”). Plaintiffs desire for the Court to opine on the validity of a law that no longer
restricts them does not revive their controversy—if that were the law, the mootness doctrine
would cease to exist.
Second, Plaintiffs argue that the case is not moot because Defendants voluntarily ceased
the challenged conduct. (Opposition at 8.) “It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the
legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000). However, as Defendants rightly point out, they did not voluntarily cease
their conduct—instead, they changed the relevant laws. (See State Reply at 3–4.) A change in
1
Because the Court resolves the Motions on mootness alone, it need not determine
whether it retains jurisdiction to resolve other issues.
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law “is usually enough to render a case moot, even if the [government] possesses the power to
reenact the [law] after the lawsuit is dismissed.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th
Cir. 2014); see also Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1031–32 (9th Cir. 2006) (holding that amendments to city ordinances had rendered facial
challenges to those ordinances moot).
Third, Plaintiffs argue that the conduct is capable of repetition yet evading review.
(Opposition at 9.) The Supreme Court has long held that those controversies “capable of
repetition, yet evading review” justify “a conclusion of nonmootness.” Roe v. Wade, 410 U.S.
113, 125 (1973). This controversy, however, does not fall within that exception. Unlike the
classic example of pregnancy-related regulations—which create controversies with a maximum
life of nine months—there is no reason to conclude that any hypothetical future restrictions on
in-person religious services will evade review. If Defendants do impose such restrictions,
Plaintiffs will be free to challenge them anew.
It is undisputed that the law Plaintiffs seek to enjoin no longer restricts Plaintiffs from
holding in-person religious services. Accordingly, Plaintiffs claims challenging those laws are
moot and therefore, the Court DISMISSES all claims WITH LEAVE TO AMEND.2
VI.
LEAVE TO AMEND
Generally, a “district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly be cured by
allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(internal quotation marks and citation omitted). Here, the Court identifies specific factual
deficiencies which may be cured by amendment. Thus, the Court GRANTS LEAVE TO
AMEND.
VII. CONCLUSION
For the reasons above, the Court GRANTS Defendants’ Motions. The July 13, 2020
hearing is VACATED. Any amended complaint shall be filed no later than July 31, 2020.
IT IS SO ORDERED.
2
Leave to amend is appropriate to allow Plaintiffs to bring claims based on the orders
(such as the May 25, 2020 order) that remain in effect.
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APPENDIX 4
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
EDCV 20-755 JGB (KKx)
Date October 9, 2020
Title Wendy Gish, et al. v. Gavin Newsom, et al.
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order (1) DENYING Plaintiffs’ Motion for Reconsideration (Dkt. No.
79); and (2) VACATING the October 19, 2020 Hearing (IN
CHAMBERS)
Before the Court is a Motion for Reconsideration of the Court’s Order Granting Motions
to Dismiss filed by Plaintiffs. (“Motion,” Dkt. No. 79.) The Court finds the Motion appropriate
for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers
filed in support of and in opposition to the Motion, the Court DENIES the Motion. The Court
vacates the hearing set for October 19, 2020.
I. FACTUAL BACKGROUND
On March 19, 2020, Governor Newsom issued Executive Order N-33-20, directing all
Californians to “immediately heed the current State public health directives” to address the
spread of Covid-19. (Dkt. No. 1-1.) The same day, the State issued public health directives
which prohibited in-person religious services, including outdoor services. (See Complaint, Dkt.
No. 1 ¶ 34; State Opposition, Dkt. No. 83 p. 2.) On April 6, 2020, Riverside County issued an
order of its own to address the Covid-19 pandemic. (Dkt. No. 1-3.) The next day, San
Bernardino County did the same. (Dkt. No. 1-2.)
On April 13, 2020, Plaintiffs filed their complaint, which challenged all three orders for
the prohibition of in-person religious worship. (“Complaint,” Dkt. No. 1.) The Complaint
alleges eleven causes of action: (1) Violation of Free Exercise Clause of First Amendment to U.S.
Constitution; (2) Violation of Establishment Clause of First Amendment to U.S. Constitution;
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(3) Violation of Free Speech Clause of First Amendment to U.S. Constitution; (4) Violation of
First Amendment Freedom of Assembly Clause; (5) Violation of Due Process Clause of
Fourteenth Amendment to U.S. Constitution; (6) Violation of Due Process Clause of Fourteenth
Amendment to U.S. Constitution; (7) Violation of Equal Protection Clause of Fourteenth
Amendment to U.S. Constitution; (8) Right to Liberty (Cal. Const. Art. 1, § 1); (9) Freedom of
Speech (Cal. Const. Art. 1, § 2); (10) Freedom of Assembly (Cal. Const. Art. 1, § 3); and (11)
Free Exercise and Enjoyment of Religion (Cal. Const. Art. 1, § 4).
On April 23, 2020, the Court denied Plaintiffs’ request for a temporary restraining order
and preliminary injunction. (“TRO Order,” Dkt. No. 51.) On July 8, 2020, the Court dismissed
the case on mootness grounds but granted Plaintiffs leave to amend. (“Order,” Dkt. No. 76.) In
the Order, the Court directed that any amended complaint should be filed by July 31, 2020. (Dkt.
No. 76.) On July 31, 2020, Plaintiffs filed a Notice of Intent to File a Motion for Reconsideration.
(Dkt. No. 78.) On August 17, 2020, they filed this Motion. (Dkt. No. 79.) All groups of
Defendants opposed separately: San Bernardino Defendants1 opposed on September 10, 2020,
(Dkt. No. 81); Riverside Defendants opposed on September 14, 2020, (Dkt. No. 82,); and State
Defendants also opposed on September 14, 2020, (“State Opposition,” Dkt. No. 83.) On
September 21, 2020, Plaintiffs replied. (Dkt. No. 84.) On October 2, 2020, State Defendants
filed a Notice of Supplemental Authority citing the Ninth Circuit opinion in Harvest Rock
Church v. Newsom, 9th Cir. No. 20-55907. (Dkt. No. 85.)
In parallel to the developments in this case, the State of California continued to issue
Covid-19 guidance. On May 25, the Department of Public Health issued guidelines for reopening
places of worship. (State Opposition p. 2.) In addition to providing guidance on distancing, the
guidelines limited attendance at worship services to either 100 attendees or 25% of a building’s
capacity, whichever is fewer. Id. On June 12, 2020, the State updated Department of Health
guidance to remove any numerical attendance limit on outdoor in-person worship services. Id. at
3. On July 13, 2020, the State issued an order directing the closure of indoor places of worship in
some counties. Id. The July 13, 2020 Order did not restrict outdoor in-person worship. Id.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) provides for relief from a final judgment, order, or
proceeding upon a showing of the following:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
1
Defendant groups are defined in the Order, Dkt. No. 76.
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(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).2
In this district, motions for reconsideration are also governed by Central District Local
Rule 7–18. “Courts in this district have interpreted Local Rule 7-18 to be coextensive with Rules
59(e) and 60(b).” Tawfilis v. Allergan, Inc., 2015 WL 9982762, at *1 (C.D. Cal. Dec. 14, 2015).
Local Rule 7-18 provides that a motion for reconsideration of the decision on any motion may be
made only on the grounds of:
(a) a material difference in fact or law from that presented to the Court before
such decision that in the exercise of reasonable diligence could not have been
known to the party moving for reconsideration at the time of such decision, or (b)
the emergence of new material facts or a change of law occurring after the time of
such decision, or (c) a manifest showing of a failure to consider material facts
presented to the Court before such decision. No motion for reconsideration shall
in any manner repeat any oral or written argument made in support of or in
opposition to the original motion.
L. R. 7-18. “Unhappiness with the outcome is not included within the rule; unless the moving
party shows that one of the stated grounds for reconsideration exists, the Court will not grant a
reconsideration.” Roe v. LexisNexis Risk Sols. Inc., 2013 WL 12134002, at *2 (C.D. Cal. May 2,
2013).
III. DISCUSSION
Plaintiffs seize upon a plain statement from the Order: “the law Plaintiffs seek to enjoin
no longer restricts Plaintiffs from holding in-person religious services.” (Motion p. 4 (quoting
Order p. 6.)) In essence, they argue that this is no longer true because in the time since the
Court’s Order, the State has tightened restrictions on indoor religious worship (while continuing
to allow outdoor religious worship). (Motion, p. 4.) Specifically, Plaintiffs contend that
“Defendants renewed their ban on certain religious services on July 13, 2020,” after the Court’s
Order was issued. Id. Further, Plaintiffs argue that because Executive Order N-33-20 is still in
effect, Defendants retain the ability to issue public health guidelines prohibiting religious services
at any time. Id. To Plaintiffs, all of this amounts to a material difference in fact or law that the
Court either should have contemplated at the time of the Order or should consider as the
emergence of new law or material facts now.
2
The parties disagree on the applicable rules. However, Plaintiffs’ Motion is clearly
brought pursuant to Local Rule 7-18 and Federal Rule of Civil Procedure 60(b). (See Motion p.
5.)
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Plaintiffs attempt to thread a very difficult needle. They may not merely challenge the
fact that they cannot gather in crowds to worship—they must challenge the specific laws or
orders that make that so. The San Bernardino County and Riverside County Orders challenged
in the Complaint have since been rescinded and not reinstated. (Motion p. 2.) Any challenges to
those Orders were and remain moot. This leaves State orders and their enforcement.
Specifically, this leaves Executive Order N-33-20, which “has never been lifted and forms the
basis for any underlying, subsequent order and directives.” (Reply p. 7.)
But if the relevant law in assessing Plaintiffs’ claims is Order N-33-20, nothing material
has changed. That Order urging Californians to obey public health guidance was in effect at the
time of the Court’s Order and remains in effect today. And it does not, itself, prohibit worship.
Instead, if what is relevant to Plaintiffs’ claims are the Covid-19 directives issued by the
Department of Health, things have changed, but the operative directives are not challenged in the
Complaint, despite Plaintiffs’ opportunity to amend. The Complaint alleges the State “prohibits
all religious leaders from conducting in-person and out-of-home religious services, regardless of
the measures taken to reduce or eliminate the risk of the virus spreading.” (Complaint ¶ 34.)
This is no longer true. While the operative guidance in effect at the time of the Complaint
completely prohibited outdoor in-person worship, that guidance is no longer in effect; it has been
replaced most recently by the August 28, 2020 “Four-Tier Reopening Plan.” (State Opposition,
Dkt. No. 83 p. 4.) The August 28, 2020 guidance also superseded the July 13 Order Plaintiffs
reference as controlling law in their Motion. Id. The guidance allows in-person worship to occur
outside in all counties and in-person indoor worship in California counties with low Covid-19
rates. Id.
Indeed, in the time since Plaintiffs filed their Motion, Riverside County has dropped to
the Tier 2 of the Four-Tier Plan.3 This means that in Riverside County, places of worship may
open indoors with modifications: a maximum number of people of 25% capacity or 100 people,
whichever is fewer. Id. San Bernardino County is still in Tier 1, which permits outdoor worship
with modifications but prohibits indoor worship. Id. If this is the legal regime Plaintiffs wish to
challenge as violative of their rights, the Court deserves the benefit of a challenge to these
guidelines specifically. It may not offer an advisory opinion on the absolute prohibition of
religious worship in California.
Other relevant law also remains unchanged. As this Court has already observed, though
courts are generally reluctant to declare a case moot based on a defendant’s voluntary cessation
of activity, governmental policy change “presents a special circumstance in the world of
mootness.” Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1179-80 (9th Cir. 2010).
Unlike the assumptions made of private actors, courts “presume the government is acting in
good faith.” Id. Moreover, change in law “is usually enough to render a case moot[.]”
3
California State Government, Blueprint for a Safer Economy,
https://covid19.ca.gov/safer-economy/ (last visited Oct. 1 2020); See also Dkt. No. 85.
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Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014). If the law of mootness or presumption of
governmental good faith changed, reconsideration of the Court’s Order would be warranted, but
these principles remain the same.
IV.
CONCLUSION
For the reasons above, the Court DENIES Plaintiffs’ Motion. The October 19, 2020
hearing is VACATED.
IT IS SO ORDERED.
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APPENDIX 5
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EXECUTIVE DEPA RTMENT
STATE OF CALIFORNIA
EXECUTIVE ORDER N-33-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in
California as a result of the threat of COVID-19; and
WHEREAS in a short period of time, COVID-19 has rapidly spread
throughout California, necessitating updated and more stringent guidance from
federal, state, and local public health officials; and
WHEREAS for the preservation of public health and safety throughout the
entire State of California, I find it necessary for all Californians to heed the State
public health directives from the Department of Public Health.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California,
in accordance with the authority vested in me by the State Constitution and
statutes of the State of California, and in particular, Government Code sections
8567, 8627, and 8665 do hereby issue the following Order to become effective
immediately:
IT IS HEREBY ORDERED THAT:
1) To preserve the public health and safety, and to ensure the healthcare
delivery system is capable of serving all, and prioritizing those at the
highest risk and vulnerability, all residents are directed to immediately
heed the current State public health directives, which I ordered the
Department of Public Health to develop for the current statewide
status of COVID-19. Those directives are consistent with the March 19,
2020, Memorandum on Identification of Essential Critical Infrastructure
Workers During COVID-19 Response, found at: https://covid19.ca.gov/.
Those directives follow:
ORDER OF THE STATE PUBLIC HEALTH OFFICER
March 19, 2020
To protect public health, I as State Public Health Officer and Director
of the California Department of Public Health order 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, as outlined at
https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.
In addition, and in consultation with the Director of the Governor's
Office of Emergency Services, I may designate additional sectors as
critical in order to protect the health and well-being of all Californians.
Pursuant to the authority under the Health and Safety Code 120125,
120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this
order is to go into effect immediately and shall stay in effect until
further notice.
The federal government has 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
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destruction would have a debilitating effect on security, economic
security, public health or safety, or any combination thereof. I order
that Californians working in these 16 critical infrastructure sectors may
continue their work because of the importance of these sectors to
Californians' health and well-being.
This Order is being issued to protect the public health of Californians.
The California Department of Public Health looks to establish
consistency across the state in order to ensure that we mitigate the
impact of COVID-19. Our goal is simple, we want to bend the curve,
and disrupt the spread of the virus.
The supply chain must continue, and Californians must have access to
such necessities as food, prescriptions, and health care. When people
need to leave their homes or places of residence, whether to obtain
or perform the functions above, or to otherwise facilitate authorized
necessary activities, they should at all times practice social distancing.
2) The healthcare delivery system shall prioritize services to serving those
who are the sickest and shall prioritize resources, including personal
protective equipment, for the providers providing direct care to them.
3) The Office of Emergency Services is directed to take necessary steps to
ensure compliance with this Order.
4) This Order shall be enforceable pursuant to California law, including,
but not limited to, Government Code section 8665.
IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be
filed in the Office of the Secretary of State and that widespread publicity and
notice be given of this Order.
This Order is not intended to, and does not, create any rights or benefits,
substantive or procedural, enforceable at law or in equity, against the State of
California, its agencies, departments, entities, officers, employees, or any other
person.
IN WITNESS WHEREOF I have
hereunto set my hand and caused
the Gre t Seal of the tote of
d his 19th day
ATTEST:
ALEX PADILLA
Secretary of State
- App. 29 -
APPENDIX 6
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EXECUTIVE ORDER N-60-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in
California as a result of the threat of COVID-19; and
WHEREAS on March 19, 2020, I issued Executive Order N-33-20, which
directed all California residents to immediately heed current State public health
directives; and
WHEREAS State public health directives, available at
https://covid19.ca.gov/stay-home-except-for-essential-needs/, have ordered all
California residents stay home except for essential needs, as defined in State
public health directives; and
WHEREAS COVID-19 continues to menace public health throughout
California; and
WHEREAS the extent to which COVID-19 menaces public health
throughout California is expected to continue to evolve, and may vary from
place to place within the State; and
WHEREAS California law promotes the preservation of public health by
providing for local health officers—appointed by county boards of supervisors
and other local authorities—in addition to providing for statewide authority by a
State Public Health Officer; and
WHEREAS these local health officers, working in consultation with county
boards of supervisors and other local authorities, are well positioned to
understand the local needs of their communities; and
WHEREAS local governments are encouraged to coordinate with federally
recognized California tribes located within or immediately adjacent to the
external geographical boundaries of such local government jurisdiction; and
WHEREAS the global COVID-19 pandemic threatens the entire State, and
coordination between state and local public health officials is therefore, and will
continue to be, necessary to curb the spread of COVID-19 throughout the State;
and
WHEREAS State public health officials have worked, and will continue to
work, in consultation with their federal, state, and tribal government partners;
and
WHEREAS the State Public Health Officer has articulated a four-stage
framework—which includes provisions for the reopening of lower-risk businesses
and spaces (“Stage Two”), to be followed by the reopening of higher-risk
businesses and spaces (“Stage Three”)—to allow Californians to gradually
resume various activities while continuing to preserve public health in the face
of COVID-19; and
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WHEREAS the threat posed by COVID-19 is dynamic and ever-changing,
and the State’s response to COVID-19 (including implementation of the fourstage framework) should likewise retain the ability to be dynamic and flexible;
and
WHEREAS to preserve this flexibility, and under the provisions of
Government Code section 8571, I find that strict compliance with the
Administrative Procedure Act, Government Code section 11340 et seq., would
prevent, hinder, or delay appropriate actions to prevent and mitigate the
effects of the COVID-19 pandemic.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California,
in accordance with the authority vested in me by the State Constitution and
statutes of the State of California, and in particular, Government Code sections
8567, 8571, 8627, and 8665; and also in accordance with the authority vested in
the State Public Health Officer by the laws of the State of California, including
but not limited to Health and Safety Code sections 120125, 120130, 120135,
120140, 120145, 120150, 120175, and 131080; do hereby issue the following Order
to become effective immediately:
IT IS HEREBY ORDERED THAT:
1) All residents are directed to continue to obey State public health
directives, as made available at https://covid19.ca.gov/stay-homeexcept-for-essential-needs/ and elsewhere as the State Public Health
Officer may provide.
2) As the State moves to allow reopening of lower-risk businesses and
spaces (“Stage Two”), and then to allow reopening of higher-risk
businesses and spaces (“Stage Three”), the State Public Health Officer
is directed to establish criteria and procedures—as set forth in this
Paragraph 2—to determine whether and how particular local
jurisdictions may implement public health measures that depart from
the statewide directives of the State Public Health Officer.
In particular, the State Public Health Officer is directed to establish
criteria to determine whether and how, in light of the extent to which
the public health is menaced by COVID-19 from place to place within
the State, local health officers may (during the relevant stages of
reopening) issue directives to establish and implement public health
measures less restrictive than any public health measures implemented
on a statewide basis pursuant to the statewide directives of the State
Public Health Officer.
The State Public Health Officer is further directed to establish
procedures through which local health officers may (during the
relevant stages of reopening) certify that, if their respective jurisdictions
are subject to proposed public health measures (which they shall
specify to the extent such specification may be required by the State
Public Health Officer) that are less restrictive than public health
measures implemented on a statewide basis pursuant to the statewide
directives of the State Public Health Officer, the public health will not
be menaced. The State Public Health Officer shall additionally establish
procedures to permit, in a manner consistent with public health and
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safety, local health officers who submit such certifications to establish
and implement such less restrictive public health measures within their
respective jurisdictions.
The State Public Health Officer may, from time to time and as she
deems necessary to respond to the dynamic threat posed by COVID19, revise the criteria and procedures set forth in this Paragraph 2.
Nothing related to the establishment or implementation of such criteria
or procedures, or any other aspect of this Order, shall be subject to the
Administrative Procedure Act, Government Code section 11340 et seq.
Nothing in this Paragraph 2 shall limit the authority of the State Public
Health Officer to take any action she deems necessary to protect
public health in the face of the threat posed by COVID-19, including
(but not limited to) any necessary revision to the four-stage framework
previously articulated by the State Public Health Officer.
3) Nothing in this Order shall be construed to limit the existing authority of
local health officers to establish and implement public health measures
within their respective jurisdictions that are more restrictive than, or that
otherwise exist in addition to, the public health measures imposed on a
statewide basis pursuant to the statewide directives of the State Public
Health Officer.
IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be
filed in the Office of the Secretary of State and that widespread publicity and
notice be given of this Order.
This Order is not intended to, and does not, create any rights or benefits,
substantive or procedural, enforceable at law or in equity, against the State of
California, its agencies, departments, entities, officers, employees, or any other
person.
IN WITNESS WHEREOF I have hereunto set
my hand and caused the Great Seal of the
State of California to be affixed this 4th day
of May 2020.
_____________________________
GAVIN NEWSOM
Governor of California
ATTEST:
_____________________________
ALEX PADILLA
Secretary of State
- App. 33 -
APPENDIX 7
- App. 34 -
ORDER OF THE STATE PUBLIC HEALTH OFFICER
March 19, 2020
To protect public health, I as State Public Health Officer and Director of the
California Department of Public Health order 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, as
outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.
In addition, and in consultation with the Director of the Governor's Office of
Emergency Services, I may designate additional sectors as critical in order to
protect the health and well-being of all Californians.
Pursuant to the authority under the Health and Safety Code 120125, 120140,
131080, 120130(c), 120135, 120145, 120175 and 120150, this order is to go into
effect immediately and shall stay in effect until further notice.
The federal government has 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. I order that Californians working in these 16 critical
infrastructure sectors may continue their work because of the importance of these
sectors to Californians' health and well-being.
This Order is being issued to protect the public health of Californians. The
California Department of Public Health looks to establish consistency across the
state in order to ensure that we mitigate the impact of COVID-19. Our goal is
simple, we want to bend the curve, and disrupt the spread of the virus.
The supply chain must continue, and Californians must have access to such
necessities as food, prescriptions, and health care. When people need to leave
their homes or places of residence, whether to obtain or perform the functions
above, or to otherwise facilitate authorized necessary activities, they should at all
times practice social distancing.
SONIA Y. ANGELL, MD, MPH
91 Jq/zo20
DATE
- App. 35 -
APPENDIX 8
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On March 19, 2020, Governor Newsom issued Executive Order N-33-20 directing all residents
immediately to heed current State public health directives to stay home, except as needed to maintain
continuity of operations of essential critical infrastructure sectors and additional sectors as the State
Public Health Officer may designate as critical to protect health and well-being of aall Californians.
In accordance with this order, the State Public Health Officer has designated the following list of
“Essential Critical Infrastructure Workers” to help state, local, tribal, and industry partners as they work
to protect communities, while ensuring continuity of functions critical to public health and safety, as
well as economic and national security.
HEALTHCARE / PUBLIC HEALTH
Sector Profile
The Healthcare and Public Health (HPH) Sector is large, diverse, and open, spanning both the public and
private sectors. It includes publicly accessible healthcare facilities, research centers, suppliers,
manufacturers, and other physical assets and vast, complex public-private information technology
systems required for care delivery and to support the rapid, secure transmission and storage of large
amounts of HPH data.
Essential Workforce
•
•
•
•
•
Workers providing COVID-19 testing; Workers that perform critical clinical research needed for
COVID-19 response.
Health care providers and caregivers (e.g., physicians, dentists, psychologists, mid-level
practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists,
physical and occupational therapists and assistants, social workers, speech pathologists and
diagnostic and therapeutic technicians and technologists).
Hospital and laboratory personnel (including accounting, administrative, admitting and discharge,
engineering, epidemiological, source plasma and blood donation, food service, housekeeping,
medical records, information technology and operational technology, nutritionists, sanitarians,
respiratory therapists, etc.).
Workers in other medical facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics,
Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease,
Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Organ Pharmacies,
Procurement Organizations, Psychiatric, Residential, Rural Health Clinics and Federally Qualified
Health Centers, cannabis retailers).
Manufacturers, technicians, logistics and warehouse operators, and distributors of medical
equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood
products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or
sterilization supplies, personal care/hygiene products, and tissue and paper towel products.
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•
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•
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•
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Public health / community health workers, including those who compile, model, analyze and
communicate public health information.
Behavioral health workers (including mental and substance use disorder) responsible for
coordination, outreach, engagement, and treatment to individuals in need of mental health and/or
substance use disorder services.
Blood and plasma donors and the employees of the organizations that operate and manage related
activities.
Workers that manage health plans, billing, and health information, who cannot practically work
remotely.
Workers who conduct community-based public health functions, conducting epidemiologic
surveillance, compiling, analyzing and communicating public health information, who cannot
practically work remotely.
Workers who provide support to vulnerable populations to ensure their health and well-being
including family care providers
Workers performing cybersecurity functions at healthcare and public health facilities, who cannot
practically work remotely.
Workers conducting research critical to COVID-19 response.
Workers performing security, incident management, and emergency operations functions at or on
behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely.
Workers who support food, shelter, and social services, and other necessities of life for economically
disadvantaged or otherwise needy individuals, such as those residing in shelters.
Pharmacy employees necessary for filling prescriptions.
Workers performing mortuary services, including funeral homes, crematoriums, and cemetery
workers.
Workers who coordinate with other organizations to ensure the proper recovery, handling,
identification, transportation, tracking, storage, and disposal of human remains and personal
effects; certify cause of death; and facilitate access to behavioral health services to the family
members, responders, and survivors of an incident.
Workers supporting veterinary hospitals and clinics
EMERGENCY SERVICES SECTOR
Sector Profile
The Emergency Services Sector (ESS) is a community of highly-skilled, trained personnel, along with the
physical and cyber resources, that provide a wide range of prevention, preparedness, response, and
recovery services during both day-to-day operations and incident response. The ESS includes
geographically distributed facilities and equipment in both paid and volunteer capacities organized
primarily at the federal, state, local, tribal, and territorial levels of government, such as city police
departments and fire stations, county sheriff’s offices, Department of Defense police and fire
departments, and town public works departments. The ESS also includes private sector resources, such
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as industrial fire departments, private security organizations, and private emergency medical services
providers.
Essential Workforce - Law Enforcement, Public Safety and First Responders
•
•
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•
•
•
•
•
•
•
Including front line and management, personnel include emergency management, law enforcement,
Emergency Management Systems, fire, and corrections, search and rescue, tactical teams including
maritime, aviation, and canine units.
Emergency Medical Technicians
Public Safety Answering Points and 911 call center employees
Fusion Center employees
Fire Mitigation Activities
Hazardous material responders and hazardous devices teams, from government and the private
sector.
Workers – including contracted vendors -- who maintain digital systems infrastructure supporting
law enforcement and emergency service operations.
Private security, private fire departments, and private emergency medical services personnel.
County workers responding to abuse and neglect of children, elders and dependent adults.
Animal control officers and humane officers
Essential Workforce - Public Works
•
•
•
•
Workers who support the operation, inspection, and maintenance of essential dams, locks and
levees
Workers who support the operation, inspection, and maintenance of essential public works facilities
and operations, including bridges, water and sewer main breaks, fleet maintenance personnel,
construction of critical or strategic infrastructure, construction material suppliers, traffic signal
maintenance, emergency location services for buried utilities, maintenance of digital systems
infrastructure supporting public works operations, and other emergent issues
Workers such as plumbers, electricians, exterminators, and other service providers who provide
services that are necessary to maintaining the safety, sanitation, and essential operation of
residences.
Support, such as road and line clearing, to ensure the availability of needed facilities, transportation,
energy and communications Support to ensure the effective removal, storage, and disposal of
residential and commercial solid waste and hazardous waste.
FOOD AND AGRICULTURE
Sector Profile
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The Food and Agricultural (FA) Sector is composed of complex production, processing, and delivery
systems and has the capacity to feed people and animals both within and beyond the boundaries of the
United States. Beyond domestic food production, the FA Sector also imports many ingredients and
finished products, leading to a complex web of growers, processors, suppliers, transporters, distributors,
and consumers. This sectors is critical to maintaining and securing our food supply.
Essential Workforce
•
•
•
•
•
•
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•
•
•
•
•
•
Workers supporting groceries, pharmacies, and other retail that sells food and beverage products,
including but not limited to Grocery stores, Corner stores and convenience stores, including liquor
stores that sell food, Farmers’ markets, Food banks, Farm and produce stands, Supermarkets,
Similar food retail establishments, Big box stores that sell groceries and essentials
Restaurant carry-out and quick serve food operations – including food preparation, carry-out and
delivery food employees
Food manufacturer employees and their supplier employees—to include those employed in food
processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock,
poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities
producing by-products for animal food; beverage production facilities; and the production of food
packaging
Farm workers to include those employed in animal food, feed, and ingredient production,
packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck
delivery and transport; farm and fishery labor needed to produce our food supply domestically
Farm workers and support service workers to include those who field crops; commodity inspection;
fuel ethanol facilities; storage facilities; and other agricultural inputs
Employees and firms supporting food, feed, and beverage distribution (including curbside
distribution and deliveries), including warehouse workers, vendor-managed inventory controllers,
blockchain managers, distribution
Workers supporting the sanitation of all food manufacturing processes and operations from
wholesale to retail
Company cafeterias - in-plant cafeterias used to feed employees
Workers in food testing labs in private industries and in institutions of higher education
Workers essential for assistance programs and government payments
Workers supporting cannabis retail and dietary supplement retail
Employees of companies engaged in the production of chemicals, medicines, vaccines, and other
substances used by the food and agriculture industry, including pesticides, herbicides, fertilizers,
minerals, enrichments, and other agricultural production aids
Animal agriculture workers to include those employed in veterinary health; manufacturing and
distribution of animal medical materials, animal vaccines, animal drugs, feed ingredients, feed, and
bedding, etc.; transportation of live animals, animal medical materials; transportation of deceased
animals for disposal; raising of animals for food; animal production operations; slaughter and
packing plants and associated regulatory and government workforce
Workers who support the manufacture and distribution of forest products, including, but not limited
to timber, paper, and other wood products
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•
Employees engaged in the manufacture and maintenance of equipment and other infrastructure
necessary to agricultural production and distribution
ENERGY
Sector Profile
The Energy Sector consists of widely-diverse and geographically-dispersed critical assets and systems
that are often interdependent of one another. This critical infrastructure is divided into three
interrelated segments or subsectors—electricity, oil, and natural gas—to include the production,
refining, storage, and distribution of oil, gas, and electric power, except for hydroelectric and
commercial nuclear power facilities and pipelines. The Energy Sector supplies fuels to the transportation
industry, electricity to households and businesses, and other sources of energy that are integral to
growth and production across the Nation. In turn, it depends on the Nation’s transportation,
information technology, communications, finance, water, and government infrastructures.
Essential Workforce - Electricity industry:
•
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•
•
Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric
power, including call centers, utility workers, reliability engineers and fleet maintenance technicians
Workers needed for safe and secure operations at nuclear generation
Workers at generation, transmission, and electric blackstart facilities
Workers at Reliability Coordinator (RC), Balancing Authorities (BA), and primary and backup Control
Centers (CC), including but not limited to independent system operators, regional transmission
organizations, and balancing authorities
Mutual assistance personnel
IT and OT technology staff – for EMS (Energy Management Systems) and Supervisory Control and
Data
Acquisition (SCADA) systems, and utility data centers; Cybersecurity engineers; cybersecurity risk
management
Vegetation management crews and traffic workers who support
Environmental remediation/monitoring technicians
Instrumentation, protection, and control technicians
Essential Workforce - Petroleum workers:
•
•
•
•
Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport
Crude oil storage facilities, pipeline, and marine transport
Petroleum refinery facilities
Petroleum security operations center employees and workers who support emergency response
services
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•
•
•
•
Petroleum operations control rooms/centers
Petroleum drilling, extraction, production, processing, refining, terminal operations, transporting,
and retail for use as end-use fuels or feedstocks for chemical manufacturing
Onshore and offshore operations for maintenance and emergency response
Retail fuel centers such as gas stations and truck stops, and the distribution systems that support
them.
Essential Workforce - Natural and propane gas workers:
•
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•
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•
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•
•
•
•
Natural gas transmission and distribution pipelines, including compressor stations
Underground storage of natural gas
Natural gas processing plants, and those that deal with natural gas liquids
Liquefied Natural Gas (LNG) facilities
Natural gas security operations center, natural gas operations dispatch and control rooms/centers
natural gas emergency response and customer emergencies, including natural gas leak calls
Drilling, production, processing, refining, and transporting natural gas for use as end-use fuels,
feedstocks for chemical manufacturing, or use in electricity generation
Propane gas dispatch and control rooms and emergency response and customer emergencies,
including propane leak calls
Propane gas service maintenance and restoration, including call centers
Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels
or feedstocks for chemical manufacturing
Propane gas storage, transmission, and distribution centers
WATER AND WASTEWATER
Sector Profile
The Water and Wastewater Sector is a complex sector composed of drinking water and wastewater
infrastructure of varying sizes and ownership types. Multiple governing authorities pertaining to the
Water and Wastewater Sector provide for public health, environmental protection, and security
measures, among others.
Essential Workforce
Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure,
including:
•
•
•
•
Operational staff at water authorities
Operational staff at community water systems
Operational staff at wastewater treatment facilities
Workers repairing water and wastewater conveyances and performing required sampling or
monitoring
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•
•
•
•
•
Operational staff for water distribution and testing
Operational staff at wastewater collection facilities
Operational staff and technical support for SCADA Control systems
Chemical disinfectant suppliers for wastewater and personnel protection
Workers that maintain digital systems infrastructure supporting water and wastewater operations
TRANSPORTATION AND LOGISTICS
Sector Profile
The Transportation Systems Sector consists of seven key subsectors, or modes:
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Aviation includes aircraft, air traffic control systems, and airports, heliports, and landing strips.
Commercial aviation services at civil and joint-use military airports, heliports, and sea plane
bases. In addition, the aviation mode includes commercial and recreational aircraft (manned
and unmanned) and a wide-variety of support services, such as aircraft repair stations, fueling
facilities, navigation aids, and flight schools.
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Highway and Motor Carrier encompasses roadway, bridges, and tunnels. Vehicles include trucks,
including those carrying hazardous materials; other commercial vehicles, including commercial
motorcoaches and school buses; vehicle and driver licensing systems; taxis, transportation
services including Transportation Network Companies, and delivery services including Delivery
Network Companies; traffic management systems; AND cyber systems used for operational
management.
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Maritime Transportation System consists of coastline, ports, waterways, and intermodal
landside connections that allow the various modes of transportation to move people and goods
to, from, and on the water.
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Mass Transit and Passenger Rail includes terminals, operational systems, and supporting
infrastructure for passenger services by transit buses, trolleybuses, monorail, heavy rail—also
known as subways or metros—light rail, passenger rail, and vanpool/rideshare.
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Pipeline Systems consist of pipelines carrying natural gas hazardous liquids, as well as various
chemicals. Above-ground assets, such as compressor stations and pumping stations, are also
included.
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Freight Rail consists of major carriers, smaller railroads, active railroad, freight cars, and
locomotives.
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Postal and Shipping includes large integrated carriers, regional and local courier services, mail
services, mail management firms, and chartered and delivery services.
Essential Workforce
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Employees supporting or enabling transportation functions, including dispatchers, maintenance and
repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain
and inspect infrastructure (including those that require cross-border travel)
Employees of firms providing services that enable logistics operations, including cooling, storing,
packaging, and distributing products for wholesale or retail sale or use.
Mass transit workers
Taxis, transportation services including Transportation Network Companies, and delivery services
including Delivery Network Companies
Workers responsible for operating dispatching passenger, commuter and freight trains and
maintaining rail infrastructure and equipment
Maritime transportation workers - port workers, mariners, equipment operators
Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities,
functions, and services
Automotive repair and maintenance facilities
Manufacturers and distributors (to include service centers and related operations) of packaging
materials, pallets, crates, containers, and other supplies needed to support manufacturing,
packaging staging and distribution operations
Postal and shipping workers, to include private companies
Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the
equipment and infrastructure that enables operations that encompass movement of cargo and
passengers
Air transportation employees, including air traffic controllers, ramp personnel, aviation security, and
aviation management
Workers who support the maintenance and operation of cargo by air transportation, including flight
crews, maintenance, airport operations, and other on- and off- airport facilities workers
COMMUNICATIONS AND INFORMATION TECHNOLOGY
Sector Profile
The Communications Sector provides products and services that support the efficient operation of
today’s global information-based society. Communication networks enable people around the world to
contact one another, access information instantly, and communicate from remote areas. This involves
creating a link between a sender (including voice signals) and one or more recipients using technology
(e.g., a telephone system or the Internet) to transmit information from one location to another.
Technologies are changing at a rapid pace, increasing the number of products, services, service
providers, and communication options. The national communications architecture is a complex
collection of networks that are owned and operated by individual service providers. Many of this
sector’s products and services are foundational or necessary for the operations and services provided by
other critical infrastructure sectors. The nature of communication networks involve both physical
infrastructure (buildings, switches, towers, antennas, etc.) and cyber infrastructure (routing and
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switching software, operational support systems, user applications, etc.), representing a holistic
challenge to address the entire physical-cyber infrastructure.
The IT Sector provides products and services that support the efficient operation of today’s global
information-based society and are integral to the operations and services provided by other critical
infrastructure Sectors. The IT Sector is comprised of small and medium businesses, as well as large
multinational companies. Unlike many critical infrastructure Sectors composed of finite and easily
identifiable physical assets, the IT Sector is a functions-based Sector that comprises not only physical
assets but also virtual systems and networks that enable key capabilities and services in both the public
and private sectors.
Essential Workforce - Communications:
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Maintenance of communications infrastructure- including privately owned and maintained
communication systems- supported by technicians, operators, call-centers, wireline and wireless
providers, cable service providers, satellite operations, undersea cable landing stations, Internet
Exchange Points, and manufacturers and distributors of communications equipment
Workers who support radio, television, and media service, including, but not limited to front line
news reporters, studio, and technicians for newsgathering and reporting
Workers at Independent System Operators and Regional Transmission Organizations, and Network
Operations staff, engineers and/or technicians to manage the network or operate facilities
Engineers, technicians and associated personnel responsible for infrastructure construction and
restoration, including contractors for construction and engineering of fiber optic cables
Installation, maintenance and repair technicians that establish, support or repair service as needed
Central office personnel to maintain and operate central office, data centers, and other network
office facilities
Customer service and support staff, including managed and professional services as well as remote
providers of support to transitioning employees to set up and maintain home offices, who interface
with customers to manage or support service environments and security issues, including payroll,
billing, fraud, and troubleshooting
Dispatchers involved with service repair and restoration
Essential Workforce - Information Technology:
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Workers who support command centers, including, but not limited to Network Operations
Command Center, Broadcast Operations Control Center and Security Operations Command Center
Data center operators, including system administrators, HVAC & electrical engineers, security
personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and
database administrators
Client service centers, field engineers, and other technicians supporting critical infrastructure, as
well as manufacturers and supply chain vendors that provide hardware and software, and
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information technology equipment (to include microelectronics and semiconductors) for critical
infrastructure
Workers responding to cyber incidents involving critical infrastructure, including medical facilities,
SLTT governments and federal facilities, energy and utilities, and banks and financial institutions,
and other critical infrastructure categories and personnel
Workers supporting the provision of essential global, national and local infrastructure for computing
services (incl. cloud computing services), business infrastructure, web-based services, and critical
manufacturing
Workers supporting communications systems and information technology used by law enforcement,
public safety, medical, energy and other critical industries
Support required for continuity of services, including janitorial/cleaning personnel
OTHER COMMUNITY-BASED GOVERNMENT OPERATIONS AND
ESSENTIAL FUNCTIONS
Essential Workforce
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Critical government workers, as defined by the employer and consistent with Continuity of
Operations Plans and Continuity of Government plans.
County workers responsible for determining eligibility for safety net benefits
The Courts, consistent with guidance released by the California Chief Justice
Workers to ensure continuity of building functions
Security staff to maintain building access control and physical security measures
Elections personnel
Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions
and communications networks
Trade Officials (FTA negotiators; international data flow administrators)
Weather forecasters
Workers that maintain digital systems infrastructure supporting other critical government
operations
Workers at operations centers necessary to maintain other essential functions
Workers who support necessary credentialing, vetting and licensing operations for transportation
workers
Workers who are critical to facilitating trade in support of the national, state, and local emergency
response supply chain
Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools,
colleges, and universities for purposes of distance learning, provision of school meals, or care and
supervision of minors to support essential workforce across all sectors
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Workers and instructors supporting academies and training facilities and courses for the purpose of
graduating students and cadets that comprise the essential workforce for all identified critical
sectors
Hotel Workers where hotels are used for COVID-19 mitigation and containment measures, including
measures to protect homeless populations.
Construction Workers who support the construction, operation, inspection, and maintenance of
construction sites and construction projects (including housing construction)
Workers such as plumbers, electricians, exterminators, and other service providers who provide
services that are necessary to maintaining the safety, sanitation, construction material sources, and
essential operation of construction sites and construction projects (including those that support
such projects to ensure the availability of needed facilities, transportation, energy and
communications; and support to ensure the effective removal, storage, and disposal of solid waste
and hazardous waste)
Commercial Retail Stores, that supply essential sectors, including convenience stores, pet supply
stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
Workers supporting the entertainment industries, studios, and other related establishments,
provided they follow covid-19 public health guidance around social distancing.
Workers critical to operating Rental Car companies that facilitate continuity of operations for
essential workforces, and other essential travel
Workers that provide or determine eligibility for food, shelter, in-home supportive services, child
welfare, adult protective services and social services, and other necessities of life for economically
disadvantaged or otherwise needy individuals (including family members)
Professional services, such as legal or accounting services, when necessary to assist in compliance
with legally mandated activities and critical sector services
Faith based services that are provided through streaming or other technology
Laundromats and laundry services
Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other
necessities of life for animals.
CRITICAL MANUFACTURING
Sector Profile
The Critical Manufacturing Sector identifies several industries to serve as the core of the sector: Primary
Metals Manufacturing, Machinery Manufacturing, Electrical Equipment, Appliance, and Component
Manufacturing, Transportation Equipment Manufacturing Products made by these manufacturing
industries are essential to many other critical infrastructure sectors.
Essential Workforce
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• Workers necessary for the manufacturing of materials and products needed for medical supply chains,
transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear
facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense
industrial base.
HAZARDOUS MATERIALS
Essential Workforce
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Workers at nuclear facilities, workers managing medical waste, workers managing waste from
pharmaceuticals and medical material production, and workers at laboratories processing test kits
Workers who support hazardous materials response and cleanup
Workers who maintain digital systems infrastructure supporting hazardous materials management
operations
FINANCIAL SERVICES
Sector Profile
The Financial Services Sector includes thousands of depository institutions, providers of investment
products, insurance companies, other credit and financing organizations, and the providers of the
critical financial utilities and services that support these functions. Financial institutions vary widely in
size and presence, ranging from some of the world’s largest global companies with thousands of
employees and many billions of dollars in assets, to community banks and credit unions with a small
number of employees serving individual communities. Whether an individual savings account, financial
derivatives, credit extended to a large organization, or investments made to a foreign country, these
products allow customers to: Deposit funds and make payments to other parties; Provide credit and
liquidity to customers; Invest funds for both long and short periods; Transfer financial risks between
customers.
Essential Workforce
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Workers who are needed to process and maintain systems for processing financial transactions and
services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital
markets activities)
Workers who are needed to provide consumer access to banking and lending services, including
ATMs, and to move currency and payments (e.g., armored cash carriers)
Workers who support financial operations, such as those staffing data and security operations
centers
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CHEMICAL
Sector Profile
The Chemical Sector—composed of a complex, global supply chain—converts various raw materials into
diverse products that are essential to modern life. Based on the end product produced, the sector can
be divided into five main segments, each of which has distinct characteristics, growth dynamics,
markets, new developments, and issues: Basic chemicals; Specialty chemicals; Agricultural chemicals;
Pharmaceuticals; Consumer products
Essential Workforce
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Workers supporting the chemical and industrial gas supply chains, including workers at chemical
manufacturing plants, workers in laboratories, workers at distribution facilities, workers who
transport basic raw chemical materials to the producers of industrial and consumer goods, including
hand sanitizers, food and food additives, pharmaceuticals, textiles, and paper products.
Workers supporting the safe transportation of chemicals, including those supporting tank truck
cleaning facilities and workers who manufacture packaging items
Workers supporting the production of protective cleaning and medical solutions, personal
protective equipment, and packaging that prevents the contamination of food, water, medicine,
among others essential products
Workers supporting the operation and maintenance of facilities (particularly those with high risk
chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and
requires the presence of highly trained personnel to ensure safe operations, including plant contract
workers who provide inspections
Workers who support the production and transportation of chlorine and alkali manufacturing,
single-use plastics, and packaging that prevents the contamination or supports the continued
manufacture of food, water, medicine, and other essential products, including glass container
manufacturing
DEFENSE INDUSTRIAL BASE
Sector Profile
The Defense Industrial Base Sector is the worldwide industrial complex that enables research and
development, as well as design, production, delivery, and maintenance of military weapons systems,
subsystems, and components or parts, to meet U.S. military requirements. The Defense Industrial Base
partnership consists of Department of Defense components, Defense Industrial Base companies and
their subcontractors who perform under contract to the Department of Defense, companies providing
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incidental materials and services to the Department of Defense, and government-owned/contractoroperated and government-owned/government-operated facilities. Defense Industrial Base companies
include domestic and foreign entities, with production assets located in many countries. The sector
provides products and services that are essential to mobilize, deploy, and sustain military operations.
Essential Workforce
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Workers who support the essential services required to meet national security commitments to the
federal government and U.S. Military. These individuals, include but are not limited to, aerospace;
mechanical and software engineers, manufacturing/production workers; IT support; security staff;
security personnel; intelligence support, aircraft and weapon system mechanics and maintainers
Personnel working for companies, and their subcontractors, who perform under contract to the
Department of Defense providing materials and services to the Department of Defense, and
government-owned/contractor-operated and government-owned/government-operated facilities
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APPENDIX 9
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ORDER OF THE STATE PUBLIC HEALTH
OFFICER
May 7, 2020
On March 19, 2020, I issued an order directing all individuals living in the State of
California to stay at home except as needed to facilitate authorized, necessary
activities or to maintain the continuity of operations of critical infrastructure
sectors. (See https://covid19.ca.gov/stay-home-except-for-essential-needs/.) I
then set out California’s path forward from this “Stay-at-Home” Order in
California’s Pandemic Roadmap https://www.gov.ca.gov/wpcontent/uploads/2020/05/5.4.20-Update-on-Californias-PandemicRoadmap.pdf.That Roadmap identifies four stages of the pandemic: safety and
preparation (Stage 1), reopening of lower-risk workplaces and other spaces
(Stage 2), reopening of higher-risk workplaces and other spaces (Stage 3), and
finally an easing of final restrictions leading to the end of the stay at home order
(Stage 4).
Today, COVID-19 continues to present a significant risk to the health of
individuals throughout California. There are confirmed cases of the virus in 54 of
the 58 counties across the State, and each day over the past two weeks over
one thousand new cases have been confirmed in California and dozens of
people have lost their lives due to the virus. However, owing to Californians’
mitigation efforts, statewide data currently demonstrates stable rates of new
infections and hospitalizations, the maintenance of surge capacity, and an
improved ability to test, contact trace, isolate, and provide support to
individuals exposed to COVID-19. As State Public Health Officer, I have
determined that the statewide data now supports the gradual movement of the
entire state from Stage 1 to Stage 2 of California’s Pandemic Resilience
Roadmap.
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Gradual movement into Stage 2 is intended to reintroduce activities and sectors
in a phased manner and with necessary modifications, in order to protect public
health and result in a lower risk for COVID-19 transmission and outbreak in a
community. Such deliberate phasing is critical to allowing the State to protect
the public, and to mitigate and manage the impact of the re-openings, such
that our health care delivery system has the capacity to respond to potential
increased demands. Differences across the state in the prevalence of COVID19, as well as testing rates, containment capability, and hospital capacity, have
resulted in differences among local health jurisdictions’ ability to safely progress
through the various stages. The low and stable data reported by some local
health officers in their local health jurisdictions, combined with sufficient COVID19 preparedness, justifies allowance for some variation in the speed with which
some local health jurisdictions will be able to move through the phases of Stage
2.
NOW, THEREFORE, I as State Public Health Officer and Director of the
California Department of Public Health, order:
1. All local health jurisdictions in the state may begin gradual
movement into Stage 2, as set forth in this Order, effective on May 8,
2020; however, a local health jurisdiction may implement or
continue more restrictive public health measures if the jurisdiction’s
Local Health Officer believes conditions in that jurisdiction warrant it.
2. I will progressively designate sectors, businesses, establishments, or
activities that may reopen with certain modifications, based on public
health and safety needs, and I will add additional sectors, businesses,
establishments, or activities at a pace designed to protect public health
and safety. Those sectors, businesses, establishments, or activities that are
permitted to open will be designated, along with necessary modifications,
at https://covid19.ca.gov/roadmap/, as I announce them.
3. To the extent that such sectors are re-opened, Californians may leave
their homes to work at, patronize, or otherwise engage with those
businesses, establishments, or activities and must, when they do so,
continue at all times to practice physical distancing, minimize their time
outside of the home, and wash their hands frequently. To prevent further
spread of COVID-19 to and within other jurisdictions within the State,
Californians should not travel significant distances and should stay close to
home. My March 19, 2020, Order otherwise remains in full effect.
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4. The California Department of Public Health has set forth criteria to help
local health officers assess the capacity of their local health jurisdictions to
move through Stage 2. Local health jurisdictions that meet the criteria and
follow the process set forth
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID19/COVID-19-County-Variance-Attestation-Memo.aspx will be permitted
to move through Stage 2 more quickly than the State as a whole and
reopen additional low-risk businesses before the rest of the state, if they
choose to do so. A list of the sectors, businesses, establishments, or
activities, and any necessary modifications, that such a qualifying
jurisdiction may choose to reopen will be available at
https://covid19.ca.gov/roadmap-counties/, and may be expanded if I
deem it to be in the interest of public health and safety.
Pursuant to the authority under EO N-60-20, and Health and Safety
Code sections 120125, 120140, 131080, 120130(c), 120135, 120145,
120175 and 120150, this Order is to go into effect immediately and
shall stay in effect until further notice.
This Order is being issued to protect the public health of Californians
as we move as expeditiously to minimize risk to the extent possible
throughout the Stages of the Pandemic Resilience Roadmap.
Sonia Y Angell, MD, MPH
State Public Health Officer & Director
California Department of Public Health
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APPENDIX 10
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COVID-19
INDUSTRY
GUIDANCE:
Places of Worship
and Providers of
Religious Services
and Cultural
Ceremonies
May 25, 2020
covid19.ca.gov
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OVERVIEW
On March 19, 2020, the State Public Health Officer and Director of the California
Department of Public Health issued an order requiring most Californians to stay at home
to disrupt the spread of COVID-19 among the population.
The impact of COVID-19 on the health of Californians is not yet fully known. Reported
illness ranges from very mild (some people have no symptoms) to severe illness that may
result in death. Certain groups, including people aged 65 or older and those with serious
underlying medical conditions, such as heart or lung disease or diabetes, are at higher
risk of hospitalization and serious complications. Transmission is most likely when people
are in close contact with an infected person, even if that person does not have any
symptoms or has not yet developed symptoms.
Precise information about the number and rates of COVID-19 by industry or
occupational groups, including among critical infrastructure workers, is not available at
this time. There have been multiple outbreaks in a range of workplaces, indicating that
workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these
workplaces include places of worship, long-term care facilities, prisons, food
production, warehouses, meat processing plants, and grocery stores.
As stay-at-home orders are modified, it is essential that all possible steps be taken to
ensure the safety of workers and the public.
Key prevention practices include:
✓ physical distancing to the maximum extent possible,
✓ use of face coverings by employees and volunteers (where respiratory protection
is not required) and congregants/visitors,
✓ frequent handwashing and regular cleaning and disinfection,
✓ training employees and volunteers on these and other elements of the COVID-19
prevention plan.
In addition, it will be critical to have in place appropriate processes to identify new
cases of illness in workplaces and, when they are identified, to intervene quickly and
work with public health authorities to halt the spread of the virus.
PURPOSE
This document provides guidance for places of worship and providers of religious
services and cultural ceremonies (referred to collectively as “places of worship”) to
support a safe, clean environment for employees, interns and trainees, volunteers,
scholars, and all other types of workers (referred to collectively as “staff”) as well as
congregants, worshippers, visitors, etc. (referred to collectively as “visitors” or
“congregants”).
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This guidance does not obligate places of worship to resume in-person activity. Further,
it is strongly recommended that places of worship continue to facilitate remote services
and other related activities for those who are vulnerable to COVID19 including older
adults and those with co-morbidities.
Even with adherence to physical distancing, convening in a congregational setting of
multiple different households to practice a personal faith carries a relatively higher risk
for widespread transmission of the COVID-19 virus, and may result in increased rates of
infection, hospitalization, and death, especially among more vulnerable populations. In
particular, activities such as singing and group recitation negate the risk-reduction
achieved through six feet of physical distancing.
*Places of worship must therefore limit attendance to 25% of building capacity or a
maximum of 100 attendees, whichever is lower. This limitation will be in effect for the first
21-days of a county public health department’s approval of religious services and
cultural ceremonies activities at places of worship within their jurisdictions.
Upon 21-days, the California Department of Public Health, in consultation with county
Departments of Public Health, will review and assess the impact of these imposed limits
on public health and provide further direction as part of a phased-in restoration of
activities in places of worship.
NOTE: This guidance is not intended for food preparation and service, delivery of
items to those in need, childcare and daycare services, school and educational
activities, in-home caregiving, counseling, office work, and other activities that
places and organizations of worship may provide. Organizations that perform
these activities must follow applicable guidance on the COVID-19 Resilience
Roadmap website.
The guidance is not intended to revoke or repeal any employee rights, either statutory,
regulatory or collectively bargained, and is not exhaustive, as it does not include
county health orders, nor is it a substitute for any existing safety and health-related
regulatory requirements such as those of Cal/OSHA.1 Stay current on changes to public
health guidance and state/local orders, as the COVID-19 situation continues. Cal/OSHA
has more safety and health guidance on their Cal/OSHA Guidance on Requirements to
Protect Workers from Coronavirus webpage. The CDC has additional guidance for
community- and faith-based organizations.
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Workplace Specific Plan
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Establish a written, workplace-specific COVID-19 prevention plan at every
location, perform a comprehensive risk assessment of all work areas, and
designate a person at each workplace to implement the plan.
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Identify contact information for the local health department where the
workplace is located for communicating information about COVID-19
outbreaks among staff and congregants/visitors.
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Train and communicate with staff and employee representatives on the
plan.
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Regularly evaluate workplaces for compliance with the plan and
document and correct deficiencies identified.
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Investigate any COVID-19 illness and determine if any work-related
factors could have contributed to risk of infection. Update the plan as
needed to prevent further cases.
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Identify close contacts (within six feet for 15 minutes or more) of an
infected staff member and take steps to isolate COVID-19 positive staff
and close contacts.
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Adhere to the guidelines below. Failure to do so could result in workplace
illnesses that may cause operations to be temporarily closed or limited.
Topics for Employee and Volunteer Training
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Information on COVID-19, how to prevent it from spreading, and which
underlying health conditions may make individuals more susceptible to
contracting the virus.
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Self-screening at home, including temperature and/or symptom checks
using CDC guidelines.
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The importance of not coming to work or participating in activities if staff
have symptoms of COVID-19 as described by the CDC, such as a
frequent cough, fever, difficulty breathing, chills, muscle pain, sore throat,
recent loss of taste or smell, or if they or someone they live with have
been diagnosed with COVID-19.
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To seek medical attention if their symptoms become severe, including
persistent pain or pressure in the chest, confusion, or bluish lips or face.
Updates and further details are available on CDC’s webpage.
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The importance of frequent handwashing with soap and water, including
scrubbing with soap for 20 seconds (or using hand sanitizer with at least
60% ethanol or 70% isopropanol when staff cannot get to a sink or
handwashing station, per CDC guidelines).
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The importance of physical distancing, both at work and off work time
(see Physical Distancing section below).
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Proper use of face coverings, including:
o Face coverings do not protect the wearer and are not personal
protective equipment (PPE).
o Face coverings can help protect people near the wearer, but do not
replace the need for physical distancing and frequent handwashing.
o Face coverings must cover the nose and mouth.
o Employees should wash or sanitize hands before and after using or
adjusting face coverings.
o Avoid touching the eyes, nose, and mouth.
o Face coverings should be washed after each shift.
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Ensure all types of staff including temporary, contract, and volunteer
workers are also properly trained in COVID-19 prevention policies and
have necessary PPE. Discuss these responsibilities ahead of time with
organizations supplying temporary, contract, and/or volunteer staff.
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Information on employer or government-sponsored leave benefits the
employee may be entitled to receive that would make it financially
easier to stay at home. See additional information on government
programs supporting sick leave and worker’s compensation for COVID19, including employee’s sick leave rights under the Families First
Coronavirus Response Act and employee’s rights to workers’
compensation benefits and presumption of the work-relatedness of
COVID-19 pursuant to the Governor’s Executive Order N-62-20.
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Individual Control Measures and Screening
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Provide temperature and/or symptom screenings for all staff at the
beginning of their shift. Make sure the temperature/symptom screener
avoids close contact with staff to the extent possible. Both screeners and
staff should wear face coverings for the screening.
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If requiring self-screening at home, which is an appropriate alternative to
providing it at the establishment, ensure that screening was performed
prior to the worker and/or volunteer leaving the home for their shift and
follows CDC guidelines, as described in the Topics for Employee Training
section above.
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Encourage staff and congregants/visitors who are sick or exhibiting
symptoms of COVID-19, or who have family members who are ill, to stay
home.
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Employers should provide and ensure workers and volunteers use all
required protective equipment, including eye protection and gloves,
where necessary.
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Places of worship should consider where disposable gloves use may be
helpful to supplement frequent handwashing or use of hand sanitizer;
examples are for staff who are screening others for symptoms or handling
commonly touched items. All workers and volunteers should wear gloves
when handling items contaminated by body fluids.
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Face coverings are strongly recommended when staff are in the vicinity
of others. Workers and volunteers should have face coverings available
and wear them when at all facilities, in offices, when making home visits
as part of providing services, or in a vehicle during work-related travel
with others. Face coverings must not be shared. Places of worship are
generally encouraged to provide face coverings but must provide them
when required by employer rules or these guidelines.
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Staff, volunteers, etc. should not enter the home or visit someone who as
tested positive for, exhibited symptoms of, or has been in contact with
someone infected with COVID-19 for an appropriate waiting period as
described by CDC guidelines.
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Places of worship must take reasonable measures, including posting
signage in strategic and highly-visible locations, to remind
congregants/visitors that they should use face coverings and practice
physical distancing whenever possible. Babies and children under age
two should not wear face coverings, in accordance with CDC guidelines.
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Use social media, website, texts, email, newsletters, etc., to communicate
the steps being taken to protect congregants/visitors and staff so that
they are familiar with the policies (including to stay home if experiencing
symptoms or are at increased risk of becoming sick, face coverings,
physical distancing, handwashing and/or sanitizing, and cough
etiquette), before arriving at the facility. Staff and volunteers are strongly
encouraged to remind congregants/visitors of these practices with
announcements during services or on welcoming guests.
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Congregants/visitors should be screened for temperature and/or
symptoms upon arrival to places of worship and asked to use hand
sanitizer and to wear face coverings.
Cleaning and Disinfecting Protocols
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Perform thorough cleaning of high traffic areas such as lobbies, halls,
chapels, meeting rooms, offices, libraries, and study areas and areas of
ingress and egress including stairways, stairwells, handrails, and elevator
controls. Frequently disinfect commonly used surfaces including
doorknobs, toilets, handwashing facilities, pulpits and podiums, donation
boxes or plates, altars, and pews and seating areas.
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Establish frequent cleaning and disinfection of personal work areas such
as desks and cubicles and supply the necessary cleaning products.
Provide time for workers to implement cleaning practices during their
shift. Cleaning assignments should be assigned during working hours as
part of the staff’s job duties.
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Discourage sharing items used in worship and services (such as prayer
books, cushions, prayer rugs, etc.) whenever possible and provide singleuse or digital copies or ask congregants/visitors to bring personal items
instead. Avoid sharing work equipment and supplies, such as phones,
office equipment, computers, etc., wherever possible. Never share PPE.
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Where such items must be shared, disinfect between shifts or uses,
whichever is more frequent, including the following: shared office
equipment (copiers, fax machines, printers, telephones, keyboards,
staplers, etc.) and items in shared worship items, etc., with a cleaner
appropriate for the surface.
•
Ensure that sanitary facilities stay operational and stocked at all times
and provide additional soap, paper towels, and hand sanitizer when
needed. Consider more frequently cleaning and disinfecting
handwashing facilities that are used more often. Use signage to reinforce
handwashing.
- App. 62 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 9 of 147 Page ID
#:1426
•
Disinfect microphones and stands, music stands, instruments and other
items on pulpits and podiums between each use. Consult equipment
manufacturers to determine appropriate disinfection steps, particularly
for soft, porous surfaces such as foam mufflers.
•
Consider using disposable seat covers for congregants/visitors,
particularly on porous surfaces or where a facility has multiple daily
services. Discard and replace seat covers between each use. Provide
disposable or washable covers on pillows used as seating on floors and
change/wash them after each use.
•
Install hand sanitizer dispensers, touchless whenever possible, at
entrances and contact areas such as meeting rooms, lobbies, and
elevator landings.
•
When choosing cleaning chemicals, establishments should use products
approved for use against COVID-19 on the Environmental Protection
Agency (EPA)-approved list and follow product instructions. Use
disinfectants labeled to be effective against emerging viral pathogens,
diluted household bleach solutions (5 tablespoons per gallon of water), or
alcohol solutions with at least 70% alcohol that are appropriate for the
surface. Provide staff training on manufacturer’s directions and Cal/OSHA
requirements for safe use. Workers and volunteers using cleaners or
disinfectants should wear gloves or other protective equipment as
required by the product instructions.
•
Wash religious garments and linens after each service or event, at the
highest water setting possible. Ask congregants/visitors to bring their own
storage bags for personal garments and shoes. Staff, congregants, and
visitors should wear gloves when handling others’ dirty linens, shoes, etc.
•
Discontinue passing offering plates and similar items that move between
people. Use alternative giving options such as secure drop boxes that do
not require opening/closing and can be cleaned and disinfected.
Consider implementing digital systems that allow congregants/visitors to
make touch-free offerings.
•
Mark walking paths between spaces designated for congregants/visitors
to sit/kneel so that people do not walk where someone may touch their
head to the floor.
•
During meetings and services, introduce fresh outside air, for example by
opening doors/windows (weather permitting) and operating ventilation
systems.
•
Consider installing portable high-efficiency air cleaners, upgrading the
building’s air filters to the highest efficiency possible, and making other
- App. 63 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 10 of 147 Page ID
#:1427
modifications to increase the quantity of outside air and ventilation in
worship areas, offices, and other spaces.
Physical Distancing Guidelines
•
Places of worship should continue to provide services through alternative
methods (such as via internet live and/or recorded streaming, telephone,
drive-in, etc.) whenever possible.
•
Consider holding in-person meetings and providing in-person services
outside whenever possible.
•
Implement measures to ensure physical distancing of at least six feet
between workers, staff, congregants/visitors, etc. This can include use of
physical partitions or visual cues (e.g., floor or pew markings or signs to
indicate where people should sit and stand). Reconfigure seating and
standing areas to maintain physical distancing of six feet or more
between congregants/visitors from different households. Consider limiting
seating to alternate rows. Members of the same household may be
seated together but should maintain at least six feet of distance from
other households.
•
Consider dedicating staff to help people maintain distances during
activities.
•
Shorten services to limit the length of time congregants/visitors spend at
facilities whenever possible. This could include limiting speeches, asking
congregants/visitors to put on garments at home before arrival, etc.
•
Close places of worship for visitation outside of scheduled services,
meetings, etc., whenever possible.
•
Consider implementing a reservation system to limit the number of
congregants/visitors attending facilities at a time. This can include the use
of digital platforms or other types of tools.
•
Encourage congregants/visitors to meet with the same group, particularly
when services meet frequently and/or require a certain number of
people to be present. This can reduce the spread of transmission by
minimizing the number of different individuals who come into close
contact with each other.
•
Consider offering additional meeting times (per day or per week) so that
fewer guests attend meetings and services at one time. Clean meeting
areas between each use as described in this guidance.
- App. 64 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 11 of 147 Page ID
#:1428
•
Discontinue large gatherings that encourage congregants/visitors to
travel and break physical distances during activities, such as concerts,
large holiday and life event celebrations and remembrances.
•
Children should remain in the care of those in their household unit and not
interact with children of other parties at any time while visiting facilities.
Close play areas and discontinue activities and services for children
where physical distancing of at least six feet cannot be maintained.
•
Encourage congregants/visitors to physically distance themselves from
others outside their household, avoid touching surfaces, and to leave the
facility if they do not feel well.
•
Consider limiting touching for religious and/or cultural purposes, such as
holding hands, to members of the same household.
•
Dedicate staff to direct guests to meeting rooms upon entry to places of
worship rather than congregating in lobbies or common areas. Consider
using ushers to help people find places to sit and stand that are at least
six feet apart from other guests/household groups. Ask
congregants/visitors to arrive and leave in a single group to minimize
crossflow of people. Welcome and dismiss congregants/visitors from
altars, podiums, meeting rooms, etc. in an orderly way to maintain
physical distancing and minimize crossflow of traffic, to the extent
possible.
•
Prop or hold doors open during peak periods when congregants/visitors
are entering and exiting facilities, if possible and in accordance with
security and safety protocols.
•
Close or restrict common areas, such as break rooms, kitchenettes, foyers,
etc. where people are likely to congregate and interact. Consider
installing barriers or increase physical distance between tables/seating
when there is continued use of these areas.
•
Turn off public drinking water fountains and place signs informing
congregants/visitors they are inoperable.
•
Remove from service or find low-community touch alternatives for
communal/religious water containers such as fonts, sinks, and vessels.
Empty and change water between uses. Where there is a possibility of
contaminant splash, staff, congregants, visitors, etc., are strongly
encouraged to use equipment to protect the eyes, nose, and mouth
using a combination of face coverings, protective glasses, and/or face
shields. Reusable protective equipment such as shields and glasses should
be properly disinfected between uses.
•
When washing is a required activity, modify practices whenever possible
to limit splashing and the need to clean and disinfect washing facilities.
- App. 65 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 12 of 147 Page ID
#:1429
Encourage necessary washing to be performed at home prior to entering
a facility, if possible.
•
Reconfigure podiums and speaker areas, office spaces, meeting rooms,
conference rooms, etc., to allow for at least six feet between people.
Face coverings are strongly recommended at all times for
congregants/visitors and staff, especially when physical distance of at
least six feet is not possible.
•
Establish directional hallways and passageways for foot traffic, if possible,
and designate separate routes for entry and exit into meeting rooms,
offices, etc., to help maintain physical distancing and lessen the instances
of people closely passing each other.
•
Limit the number of individuals riding in an elevator and ensure the use of
face coverings. Post signage regarding these policies.
•
Utilize practices, when feasible and necessary, to limit the number of staff
and congregants/visitors in office, meeting spaces, etc., at one time. This
may include scheduling (e.g. staggering start/end times), establishing
alternating days for onsite reporting, returning to places of worship in
phases, or continued use of telework when feasible.
•
Consider offering workers and volunteers who request modified duties
options that minimize their contact with congregants/visitors and other
staff (e.g., office duties rather than working as an usher or managing
administrative needs through telework).
•
Stagger staff breaks, in compliance with wage and hour regulations, to
maintain physical distancing protocols.
•
Discontinue nonessential travel and encourage distance meetings via
phone and internet.
•
Close self-service item selection such as pamphlet displays and
bookshelves and provide these items to congregants/visitors individually
as necessary. Consider delivering items and information electronically.
•
Consider limiting the number of people that use the restroom at one time
to allow for physical distancing.
•
Discourage staff, congregants, visitors, etc., from engaging in
handshakes, hugs, and similar greetings that break physical distance.
Take reasonable measures to remind people to wave or use other
greetings.
•
Reconfigure parking lots to limit congregation points and ensure proper
separation (e.g., closing every other space). If performing drive-in
- App. 66 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 13 of 147 Page ID
#:1430
services, ensure vehicle windows and doors are closed if six feet of
distance is not possible between vehicles.
•
Continue to support non-in person attendance of services and other
related activities by those who are vulnerable to COVID19 including older
adults and those with co-morbidities.
Considerations for Places of Worship
•
Discontinue offering self-service food and beverages. Do not hold
potlucks or similar family-style eating and drinking events that increase
the risk of cross contamination. If food and beverages must be served,
provide items in single-serve, disposable containers whenever possible.
Employees or volunteers serving food should wash hands frequently and
wear disposable gloves and face coverings.
•
Strongly consider discontinuing singing, group recitation, and other
practices and performances where there is increased likelihood for
transmission from contaminated exhaled droplets. Modify practices such
as limiting the number people reciting or singing, ensuring physical
distancing greater than six feet between people, or opt to celebrate
these practices outside with physical distancing, etc., if these practices
cannot be discontinued.
•
Consider modifying practices that are specific to particular faith traditions
that might encourage the spread of COVID-19. Examples are
discontinuing kissing of ritual objects, allowing rites to be performed by
fewer people, avoiding the use of a common cup, offering communion
in the hand instead of on the tongue, providing pre-packed communion
items on chairs prior to service, etc., in accordance with CDC guidelines.
Considerations for Funerals
•
Consider reduced visitor capacity and stagger visitation times at funerals,
wakes, etc., if possible. Follow all cleaning and disinfection measures as
described in this guidance. Whenever possible, remind visitors to maintain
physical distance from each other, from staff and volunteers, and from
the deceased.
•
Consider modifying religious or cultural practices when washing or
shrouding bodies of those who have died from COVID-19, in accordance
with guidance from CDPH and the CDC. If washing the body or shrouding
are important religious or cultural practices, work with funeral home staff
and families to reduce exposure as much as possible. All people
- App. 67 -
Case 5:20-cv-00755-JGB-KK Document 69-1 Filed 05/27/20 Page 14 of 147 Page ID
#:1431
participating in these activities must wear disposable gloves and if there
will be splashing of fluids, people must use additional protective
equipment including protection for the eyes, nose, and mouth, such as
face shields.
•
Consult and comply with local guidance regarding limits on gathering
sizes, travel, holding funerals for those who died from COVID-19, etc.
•
Consider other recommendations and modifications of services related
to places of worship outlined above, as applicable for funeral services.
1Additional requirements must be considered for vulnerable populations. Places of worship must
comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as
guidance from the Centers for Disease Control and Prevention (CDC) and the California
Department of Public Health (CDPH). Additionally, places of worship must be prepared to alter
their operations as those guidelines change.
- App. 68 -
APPENDIX 11
- App. 69 -
- App. 70 -
- App. 71 -
- App. 72 -
- App. 73 -
- App. 74 -
- App. 75 -
- App. 76 -
- App. 77 -
- App. 78 -
- App. 79 -
- App. 80 -
APPENDIX 12
- App. 81 -
- App. 82 -
- App. 83 -
- App. 84 -
- App. 85 -
- App. 86 -
- App. 87 -
- App. 88 -
- App. 89 -
- App. 90 -
APPENDIX 13
- App. 91 -
Case: 20-56324, 12/22/2020,
ID:81-1
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State of California—Health and Human Services Agency
California Department of Public Health
6$1'5$6+(:5<03+06:
Acting Director
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- App. 92 -
Case: 20-56324, 12/22/2020,
ID:81-1
11937224,
DktEntry: 7-7,
Page 67 of Page
300 66 of 299
Case 3:20-cv-00865-BAS-AHG
Document
Filed 12/14/20
PageID.5928
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- App. 93 -
Case: 20-56324, 12/22/2020,
ID:81-1
11937224,
DktEntry: 7-7,
Page 68 of Page
300 67 of 299
Case 3:20-cv-00865-BAS-AHG
Document
Filed 12/14/20
PageID.5929
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- App. 94 -
APPENDIX 14
- App. 95 -
%OXHSULQWIRUD6DIHU(FRQRP\
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ID:81-1
11937224,
DktEntry: 7-7,
Page 70 of Page
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Case 3:20-cv-00865-BAS-AHG
Document
Filed 12/14/20
PageID.5931
COVID-19
Blueprint for a Safer EconomyĐ
California has a blueprint for reducing COVID-19 in the state with revised criteria for loosening and tightening
restrictions on activities. Every county in California is assigned to a tier based on its test positivity and adjusted case
rate for tier assignment. Additionally, a health equity metric took ewect on October 6, 2020. In order to advance to
the next less restrictive tier, each county will need to meet an equity metric or demonstrate targeted investments to
eliminate disparities in levels of COVID-19 transmission, depending on its size. The California Health Equity Metric is
designed to help guide counties in their continuing eworts to reduce COVID-19 cases in all communities and
requires more intensive eworts to prevent and mitigate the spread of COVID-19 among Californians who have been
disproportionately impacted by this pandemic.
Updates as of 12/08/2020:
CDPH continues to implement and operate the Blueprint For a Safer Economy under the emergency brakes
action announced on November 9, 2020. Counties who are not currently under a regional Stay at Home Order
may be moved to a more restrictive tier based on Blueprint data assessed each week. Once announced, the
county is required to implement tier related restrictions by 11:59pm the next day.Đ
Thereaxer, if a county enters into a regional Stay at Home Order based on ICU capacity, the restrictions
associated with that order would take ewect.Đ
In light of the recent, unprecedented surge in rate of increase of cases, notwithstanding the Blueprint
framework outlined below, the following changesĐhave been ewective since 11/9/2020 and will stay in place
until further notice:
Tier assignments may occur any day of the week and may occur more than once a week when CDPH
determines that the most recent reliable data indicate that immediate action is needed to address
COVID-19 transmission in a county.
Counties may be moved back more than one tier if CDPH determines that the data support the more
intensive intervention. Key considerations will include the rate of increase in new cases and/or test
positivity, more recent data as noted below, public health capacity, and other epidemiological factors.
The most recent reliable data will be used to complete the assessment.
TheĐCalifornia Blueprint Data ChartĐ(Excel) has been updated to show county tier status, date of tier
assignment, adjusted case rate for tier assignment,Đcountywide test positivity, and the Health Equity quartile
test positivity.
County requests for tier adjudication will not hold the county in the current tier during adjudication, and
given the current environment of rapidly escalating cases and widespread disease transmission across
California, tier adjudication requests are unlikely to be approved unless unique, extreme circumstances and
data are submitted justifying how the county is not impacted by the statewide increases.
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Additional information about the Blueprint:
Find the status of activities in your county
Understand which activities and businesses are open in the four tiersĐ(PDF)
Learn more about the California Health Equity Metric and the Targeted Equity Investment Plans from each
county
County Tier Adjudication RequestĐ
Explore the complete data by countyĐ- California Blueprint Data ChartĐ(Excel)
Find archived California Blueprint Data Charts
Proyecto para una economía más segura | For other languages, visit our Multilingual Documents page
Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians
Healthy and Safe
This guidance outlines an updated framework for a safe progression of opening more businesses and activities in
light of the pandemic. The framework for this guidance is informed by increased knowledgeĐof disease transmission
vulnerabilities and risk factors and is driven by the following goals:
1. To progress in phases based on risk levels with appropriate time between each phase in each county so
impacts of any given change can be fully evaluated.
2. To aggressively reduce case transmission to as low a rate as possible across the state so the potential burden
of flu and COVID-19 in the late fall and winter does not challenge our healthcare delivery system's ability to
surge with space, supplies and staw.Đ Also, with winter weather pushing more activities indoors, low levels of
transmission in the community will make large outbreaks in these riskier settings less likely.
3. To simplify the framework and lay out clear disease transmission goals for counties to work towards.
Tier Framework
This framework lays out the measures that each county must meet, based on indicators that capture disease
burden, testing, and health equity. A county may be more restrictive than this framework. This framework also
notes signals of concern, including impacted healthcare capacity that may lead towards a dimming intervention.
This framework replaces the formerĐCounty Data Monitoring metrics. ĐAs the COVID-19 pandemic continues to be an
evolving situation and new evidence and understanding emerges, the California Department of Public Health
(CDPH), in collaboration with other State owicials,Đwill continue to reassess metrics and thresholds.
See chart below for the framework metrics as set according to tiers based on risk of community disease
transmission. Calculation of metrics is described in Appendix 1. Description of the Health Equity Metric can be
found on the Health Equity Metric page.
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Metrics with values greater than or less than tier cut points by 0.05 areĐrounded up or down using conventional
rounding rules.
^Excludes state and federal inmates, ICE facility residents,ĐState Hospital inmatesĐand US Marshal detainees
*Population denominators from the Department of Finance: State Population Projections
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.