Petition for Writ of Certiorari — California Restaurant Association, Inc., Petitioner v. Superior Court of California, Los Angeles County, et al.
Supreme Court briefJul 30, 2021
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No. 21In the
Supreme Court of the United States
CALIFORNIA RESTAURANT ASSOCIATION, INC.,
Petitioner,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY,
COUNTY OF LOS ANGELES DEPARTMENT OF
PUBLIC HEALTH, AND DR. BARBARA FERRER,
IN HER OFFICIAL CAPACITY AS DIRECTOR OF
PUBLIC HEALTH, COUNTY OF LOS ANGELES,
Respondents.
On Petition for a Writ of Certiorari to the
Court of A ppeal of the State of California,
Second A ppellate District
PETITION FOR A WRIT OF CERTIORARI
Browne George Ross O’Brien Browne George Ross O’Brien
Annaguey & Ellis LLP
Annaguey & Ellis LLP
Carl A lan Roth
Dennis S. Ellis
Noah S. Helpern
Counsel of Record
Richard A. Schwartz
Eric M. George
801 S. Figueroa Street,
K atherine F. Murray
Suite 2000
Ryan Q. Keech
Los Angeles, CA 90017
Lori Sambol Brody
(213) 725-9800
2121 Avenue of the Stars,
Suite 2800
Los Angeles, CA 90067
(310) 274-7100
dellis@bgrfirm.com
Counsel for Petitioner, California Restaurant
Association, Inc.
306187
i
QUESTION PRESENTED
Is due process satisfied, consistent with the
decision in Jacobson v. Massachusetts, 197 U.S. 11
(1905), where a public health department acts based
on “rational speculation” in issuing a public health
order that effects a taking of a citizen’s right to the
free use and enjoyment of his or her property?
ii
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT
California Restaurant Association, Inc.
(“CRA”) is the petitioner in this Court. CRA was the
plaintiff and petitioner in the Superior Court of the
State of California, County of Los Angeles (“trial
court” or “Los Angeles Superior Court”) proceedings,
real-party-in-interest in the Court of Appeal of the
State of California, Second Appellate District (“Court
of Appeal”) writ proceeding, and petitioner in the
Supreme Court of the State of California (“California
Supreme Court”).
The County of Los Angeles Department of
Public Health and Dr. Barbara Ferrer, in her official
capacity as Director of Public Health, County of Los
Angeles (collectively, the “County”) are respondents
in this Court. The County was the defendant and
respondent in the trial court proceedings, petitioner
in the Court of Appeal writ proceeding, and
respondent in the California Supreme Court.
The Los Angeles Superior Court is also a
respondent in this Court, as well as respondent in the
Court of Appeal writ proceeding and in the California
Supreme Court.
Mark’s Engine Company No. 28 Restaurant,
LLC (“Mark’s Engine Company No. 28”) was also realparty-in-interest in the Court of Appeal writ
proceeding and petitioner in the California Supreme
Court. As of the filing of this Petition, Mark’s Engine
iii
Company No. 28 has not petitioned for certiorari
before this Court.
Pursuant to this Court’s Rule 29.6,
undersigned counsel state that CRA has no parent or
publicly held company owning 10% or more of the
corporation’s stock.
.
iv
RELATED CASES
•
California Restaurant Association, Inc. v.
County of Los Angeles, Department of Public
Health, et al., No. 20STCP03881, Superior
Court of the State of California, County of Los
Angeles.
Granting, in part, preliminary
injunction on December 15, 2020.1
•
County of Los Angeles, Department of Public
Health, et al. v. Superior Court of Los Angeles
County (California Restaurant Association,
Inc.), No. B309416, Court of Appeal of the State
of California, Second Appellate District.
Staying preliminary injunction on December
18, 2020. Issuing peremptory writ directing
the Superior Court to vacate its December 15,
2020 preliminary injunction on March 1, 2021.
Denying petition for rehearing on March 12,
2021.
•
County of Los Angeles, Department of Public
Health, et al. v. Superior Court of Los Angeles
County (California Restaurant Association,
Inc.), No. S268101, Supreme Court of the State
of California. Denying petition for review on
June 9, 2021.
This proceeding was consolidated with Mark’s Engine
Co. No. 28 Restaurant, LLC v. County of Los Angeles,
Department of Public Health, et al. (Los Angeles Super. Ct.) (No.
20STCV45134), solely for purposes of the hearing on the motions
for preliminary injunction.
1
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT .......................................... ii
RELATED CASES .................................................... iv
TABLE OF CONTENTS .............................................v
TABLE OF AUTHORITIES ................................... viii
PETITION FOR A WRIT OF CERTIORARI .............1
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL PROVISIONS ...........................2
CALIFORNIA AND MUNICIPAL STATUTES,
REGULATIONS, AND ORDERS ....................2
INTRODUCTION .......................................................3
STATEMENT OF THE CASE ....................................5
A.
The Ban On Outdoor Dining .................5
B.
The Trial Court Grants CRA’s
Motion
For
Preliminary
Injunction ...............................................6
C.
The Appellate Court Issues A
Writ Of Mandate ..................................10
D.
The Court Of Appeal Denies
CRA’s Petition For Rehearing .............12
vi
E.
The California Supreme Court
Denies CRA’s Petition For Review
..............................................................13
REASONS FOR GRANTING THE PETITION .......13
A.
Review Is Necessary To Settle
Important Questions That Will
Recur During This Pandemic And
Future Public Health Crises ...............13
B.
This Court Should Affirm That
Traditional Rules For Reviewing
Agency Action Are Not Dispensed
With In A Pandemic ............................18
C.
Absent Review, Government
Actors Will Resist Takings Clause
Claims
By
Claiming
That
Shutdown
Orders
Were
Justifiable Regulations ........................28
CONCLUSION ..........................................................32
APPENDICES
Appendix A, Order of the Supreme Court of the
State of California, Filed June 9, 2021 ..........1a
Appendix B, Opinion of the Court of Appeal of
the State of California, Second Appellate
District, Division Four, Filed March 1,
2021 .................................................................2a
Appendix C, Opinion of the Superior Court of
the State of California, County of Los
Angeles,
Central
District,
Filed
December 15, 2020 .......................................29a
vii
Appendix D, Relevant Statutory Provisions ........157a
Appendix E, Order of the Health Officer of the
County of Los Angeles, Department of
Public Health, dated November 25, 2020
.....................................................................159a
viii
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Am. Pelagic Fishing Co. v. United States,
49 Fed. Cl. 36 (2001) ............................................31
Brach v. Newsom,
No. 20-56291, 2021 WL 3124310
(9th Cir. July 23, 2021) ........................................17
Calvary Chapel Dayton Valley v. Sisolak,
140 S. Ct. 2603 (2020) ..........................................11
Cienega Gardens v. United States,
331 F.3d 1319 (Fed. Cir. 2003) ............................31
County of Butler v. Wolf,
486 F. Supp. 3d 883 (W.D. Pa. 2020) ............25, 26
Dep’t of Homeland Sec. v. Regents of the
Univ. of Cal.,
140 S. Ct. 1891 (2020)..........................................22
E. Enters. v. Apfel,
524 U.S. 498 (1998) ..............................................30
First Eng. Evangelical Lutheran Church v.
County of Los Angeles,
482 U.S. 304 (1987) ..............................................29
Greene v. McElroy,
360 U.S. 474 (1950) ..............................................15
ix
Heller v. Doe ex rel. Doe,
509 U.S. 312 (1993) ................................................4
Hodel v. Irving,
481 U.S. 704 (1987) ..............................................31
Hund v. Cuomo,
501 F. Supp. 3d 185 (W.D.N.Y. 2020) .................26
Hurtado v. California,
110 U.S. 516 (1884) ..........................................4, 21
Indus. Union Dep’t v. Am. Petrol. Inst.,
448 U.S. 607 (1980) ..............................................22
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ........................................ passim
Jew Ho v. Williamson,
103 F. 10 (C.C.N.D. Cal. 1900) ......................24, 25
League of Indep. Fitness Facilities &
Trainers, Inc. v. Whitmer,
468 F. Supp. 3d 940 (W.D. Mich. 2020) ..............25
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) ............................................29
MHC Fin. Ltd. P’ship v. City of San Rafael,
714 F.3d 1118 (9th Cir. 2013)..............................31
Michigan v. EPA,
576 U.S. 743 (2015) ..............................................22
x
Motor Vehicle Mfrs. Ass’n of the U.S. v.
State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ........................................ passim
Nordlinger v. Hahn,
505 U.S. 1 (1992) ....................................................4
Pa. Coal Co. v. Mahon,
260 U.S. 393 (1922) ..............................................29
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ..............................................30
Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104 (1978) ...................................... passim
Preterm-Cleveland v. Att’y Gen. of Ohio,
456 F. Supp. 3d 917 (S.D. Ohio 2020) .................26
Ramsek v. Beshear,
468 F. Supp. 3d 904 (E.D. Ky. 2020) ...................26
Robinson v. Att’y Gen.,
957 F.3d 1171 (11th Cir. 2020)............................26
Roman Catholic Diocese of Brooklyn v.
Cuomo,
141 S. Ct. 63 (2020)...................................... passim
S. Bay United Pentecostal Church v.
Newsom,
140 S. Ct. 1613 (2020) .............................. 11, 25, 27
xi
S. Bay United Pentecostal Church v.
Newsom,
141 S. Ct. 714 (2021)............................ 3, 11, 24, 27
S. Wind Women’s Ctr. v. Stitt,
455 F. Supp. 3d 1219 (W.D. Okla. 2020) .............26
Tabernacle Baptist Church, Inc. v. Beshear,
459 F. Supp. 3d 847 (E.D. Ky. 2020) ...................26
Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg’l Planning Agency,
535 U.S. 302 (2002) ..............................................30
Truax v. Raich,
239 U.S. 33 (1915) ................................................15
Wolff v. McDonnell,
418 U.S. 539 (1974) ..............................................21
Wong Wai v. Williamson,
103 F. 1 (C.C.N.D. Cal. 1900) ........................24, 25
Zinermon v. Burch,
494 U.S. 113 (1990) ..........................................4, 21
CALIFORNIA CASES
Cal. Hotel & Motel Ass’n v. Indus. Welfare
Comm’n,
25 Cal. 3d 200 (1979) ...........................................19
W. States Petrol. Ass’n v. Super. Ct. (Cal.
Air Res. Bd.),
9 Cal. 4th 559 (1995)............................................19
xii
OTHER STATE CASES
Gym 24/7 Fitness, L.L.C. v. Michigan,
No. 20-000132-MM, 2020 WL 6050543
(Mich. Ct. Cl. Sep. 24, 2020) ................................25
FEDERAL STATUTES
28 U.S.C. § 1257(a)......................................................1
STATE STATUTES
Cal. Health & Safety Code
§ 101040 .......................................................2, 7, 17
§ 120175 .......................................................2, 7, 17
RULES
Sup. Ct. R. 10(c) ........................................................13
CONSTITUTIONAL PROVISIONS
U.S. Const.
amend. I ............................................... 5, 15, 16, 27
amend. V .............................................. 2, 28, 29, 30
amend. XIV ..................................................2, 9, 21
xiii
OTHER AUTHORITIES
Office of Behavioral Safety Research,
Update to Special Reports on Traffic
Safety During the COVID-19 Public
Health Emergency: Third Quarter Data,
https://www.nhtsa.gov/sites/
nhtsa.dot.gov/files/documents/traffic_
safety_during_covid19_01062021_0.pdf
(Jan. 2021)............................................................23
Sophie Kasakove, Los Angeles County’s
sheriff declines to enforce the mask
mandate about to resume, N.Y. Times,
https://www.nytimes.com/2021/07/17/wo
rld/los-angeles-sheriff-mask.html (July
17, 2021) ................................................... 14, 15, 16
County of Los Angeles Dep’t of Pub. Health,
Order of the Health Officer, Reopening
Safer at Work and in the Community for
Control of COVID-19, Blueprint for a
Safer Economy–Tier 1 Surge Response
(Nov. 25, 2020) ...............................................3, 6, 7
1
PETITION FOR A WRIT OF CERTIORARI
CRA respectfully submits this petition for a
writ of certiorari for review of the opinion of the Court
of Appeal.
OPINIONS BELOW
The December 15, 2020 order of the Los
Angeles Superior Court entering the preliminary
injunction is unpublished.2
Appendix (“App.”)
29a. The December 18, 2020 order of the Court of
Appeal staying the preliminary injunction order is
unpublished. The March 1, 2021 opinion of the Court
of Appeal issuing the peremptory writ directing the
Los Angeles Superior Court to vacate its December
15, 2020 order is available at 61 Cal. App. 5th 478.
App. 2a. The March 12, 2021 order of the Court of
Appeal denying rehearing is unpublished. The June
9, 2021 order of the California Supreme Court
denying CRA’s petition for review is unpublished.
App. 1a.
JURISDICTION
On June 9, 2021, the California Supreme Court
denied CRA’s petition for review. App. 1a. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a).
The December 15, 2020 order is available at 2020 WL
8410014 but omits the referenced Exhibit A, the trial court’s
December 8, 2020 ruling granting the application for
preliminary injunction in part.
2
2
CONSTITUTIONAL PROVISIONS
The Fifth Amendment of the United States
Constitution provides, in relevant part,
No person shall be . . .
deprived of life, liberty, or
property,
without
due
process of law; nor shall
private property be taken
for public use, without just
compensation.
Section 1 of the Fourteenth Amendment of the
United States Constitution provides, in relevant part,
No State shall . . . deprive
any person of life, liberty,
or property, without due
process of law . . . .
CALIFORNIA AND MUNICIPAL STATUTES,
REGULATIONS, AND ORDERS
Pursuant to this Court’s Rule 14.1(f), the
following state statutes and municipal orders are set
out verbatim in the Appendix to this Petition:
California Health & Safety Code section
101040. App. 157a.
California Health & Safety Code section
120175. App. 158a.
3
County of Los Angeles Dep’t of Pub. Health,
Order of the Health Officer, Reopening Safer at Work
and in the Community for Control of COVID-19,
Blueprint for a Safer Economy–Tier 1 Surge Response
(Nov. 25, 2020). App. 159a.
INTRODUCTION
From Jacobson v. Massachusetts, 197 U.S. 11
(1905) (“Jacobson”) through Roman Catholic Diocese
of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam) (“Roman Catholic Diocese”) and South Bay
United Pentecostal Church v. Newsom, 141 S. Ct. 714
(2021) (“South Bay II”), this Court has made clear
that generally applicable rules of judicial review
apply to state health agencies’ exercise of emergency
powers, notwithstanding the exigencies of a
pandemic. Ignoring that clear instruction, however,
the Court of Appeal held that the trial court in this
case overstepped its bounds by requiring the County
to perform the basic task of considering the various
ramifications of a countywide shutdown of all outdoor
dining at restaurants before extending the shutdown
any further. By interdicting that modest order, the
Court of Appeal discarded the principle embodied in
federal and California administrative law that
agencies act arbitrarily and capriciously when they
fail “to consider an important aspect of the problem”
they are trying to solve. See Motor Vehicle Mfrs. Ass’n
of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (“State Farm”). Instead, the Court of
Appeal stated that agencies need not consider any
evidence whatsoever when non-fundamental rights
are implicated, provided that the agency can
4
articulate an after-the-fact justification that would
satisfy “rational basis review,” even if it is based on
rational speculation.
The Court of Appeal improperly applied the
rational basis review test that might apply to an equal
protection challenge, and thus excused the County
from complying with the mandates of the “arbitrary
and capricious” test that applies to administrative
actions in substantive due process challenges. In
doing so, the Court of Appeal provided too much
deference to the County and insulated the County’s
action—which was not based on any evidence
competent to employ in comparing the risks and
benefits of a countywide restaurant shutdown order—
from judicial review.3 This Court should grant
certiorari to clarify that, even in a pandemic,
For equal protection purposes, a decision maker need not
actually articulate at any point the purpose or rationale
supporting the regulation, and may act based on “rational
speculation” and without evidentiary support or empirical data.
Heller v. Doe ex rel. Doe, 509 U.S. 312, 320 (1993); Nordlinger v.
Hahn, 505 U.S. 1, 15 (1992). This rational speculation standard,
however, is completely irrelevant to the arbitrary and capricious
standard that applies in substantive due process challenges.
Unlike equal protection, the core concept of substantive due
process is protection against arbitrary government action,
Hurtado v. California, 110 U.S. 516, 527 (1884), “regardless of
the fairness of the procedures used to implement them.”
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels v.
Williams, 474 U.S. 327, 331 (1986)). As a result, the standard
that should have applied to the instant substantive due process
claim is whether the County’s action was “arbitrary and
capricious,” which requires agencies to “examine the relevant
data and articulate a satisfactory explanation for its action.”
State Farm, 463 U.S. at 43.
3
5
government agencies violate substantive due process
rights when they act arbitrarily or capriciously in
exercising their broad emergency powers.
Review is especially appropriate in this case,
given that the Court of Appeal’s approval of the
County’s shutdown order would cast significant doubt
on what should be straightforward Takings Clause
challenges brought by plaintiffs who were arbitrarily
precluded from enjoying the use of their property as a
result of sweeping government edicts. If lower courts
believe that the County’s shutdown order was not
arbitrary or capricious, they may be more inclined to
find that such regulations do not amount to a taking
under this Court’s test enunciated in Penn Central
Transportation Co. v. City of New York, 438 U.S. 104,
123 (1978) (“Penn Central”). While the rights to
pursue one’s chosen employment and to enjoy private
property without government interference may not be
not as “fundamental” as the religious liberties
enshrined in the First Amendment, they are basic
rights protected by the United States Constitution,
and thus this Court should grant certiorari to affirm
that these rights, too, deserve protection from
arbitrary and capricious government regulation.
STATEMENT OF THE CASE
A.
The Ban On Outdoor Dining
On November 25, 2020, the County’s public
health officials issued a sweeping ban on outdoor
dining throughout Los Angeles County (the
“Restaurant Closure Order”), without any scientific
6
evidence to suggest that outdoor dining posed any
particular risk of spreading COVID-19. App. 159a
(County of Los Angeles Dep’t of Pub. Health, Order of
the Health Officer, Reopening Safer at Work and in
the Community for Control of COVID-19, Blueprint
for a Safer Economy–Tier 1 Surge Response (Nov. 25,
2020)).
Indeed, prior to the enactment of the
Restaurant Closure Order, at a meeting of the Los
Angeles County Board of Supervisors to discuss the
proposed order, participants highlighted the lack of
scientific underpinning for banning outdoor dining.
County health officials admitted that they had not
been tracking COVID-19 transmission at Los Angeles
County restaurants and did not have State or County
data to support any outdoor dining closure. Los
Angeles County Health Officer Dr. Muntu Davis
referred to a single study by the Centers for Disease
Control and Prevention—calling it “the best
information that we have” in support of the
Restaurant Closure Order; but that study provided no
insight into the risks specific to outdoor dining
because it failed to distinguish between indoor and
outdoor dining as potential vectors for COVID-19
transmission, even while all available evidence on the
transmission of any airborne illness suggests that
ventilation is the key factor.
B.
The Trial Court Grants CRA’s
Motion For Preliminary Injunction
CRA sued, alleging, inter alia, substantive due
process violations, and moved for a preliminary
injunction against the County’s evidence-free
Restaurant Closure Order. The trial court granted a
7
preliminary injunction. App. 29a. In a circumspect,
53-page decision, the trial court found the Restaurant
Closure Order arbitrary and capricious because the
County, as a matter of fact, had failed to consider the
costs of its policies, and the County had no
information about its relative benefits. See App. 34a.
The trial court noted that agencies violate a
litigant’s due process rights with agency action that is
“arbitrary, capricious, or entirely lacking in
evidentiary support.” See App. 108a (quoting Davies
v. Contractors’ State License Bd., 79 Cal. App. 3d 940,
946 (1978)). The trial court correctly recited that its
duty was to “ensure that the agency has adequately
considered all relevant factors and has demonstrated
a rational connection between those factors and the
choice made.” App. 108a (quoting Carrancho v. Cal.
Air Res. Bd., 111 Cal. App. 4th 1255, 1265 (2003)). In
particular, the trial court evaluated the enabling
statutes for the County’s Restaurant Closure Order—
California Health and Safety Code sections 101040(a)
and 120175, App. 157a and 158a—and determined
that those provisions require health officials to
consider the important aspects of the problem they
are trying to solve, including the likely risks or
benefits of agency action because they authorize
health officials to take “measures as may be necessary
to prevent the spread of disease . . . .” App. 43a and
149a. In the same vein, the trial court noted that
under the State of California’s Blueprint for a Safer
Economy, local health agencies “may continue to
implement or maintain more restrictive public health
measures” than those imposed by the State’s
Blueprint for a Safer Economy, but only “if the local
8
health officer determines that health conditions in
that jurisdiction warrant such measures.” App. 148a.
After all, without any understanding of the likely
risks or benefits of a given course of action, how could
a government agency make a non-arbitrary or
capricious determination about what “may be
necessary”?4
The trial court also expressly acknowledged the
considerable deference owed to executive agencies
pursuant to this Court’s decision in Jacobson, and
emphasized that although “a municipality’s health
officer has broad authority” to enact reasonable
regulations to protect the public health and public
safety, that power is not “unbridled.” App. 43a-44a.
The trial court recited its “duty to evaluate an
exercise of that authority to ensure actions taken
have a ‘real and substantial relationship’ to public
health and safety. The health officer cannot act
arbitrarily or oppress. In addition, the health officer
cannot engage in a ‘plain, palpable invasion of rights’
secured by the Constitution.” Id. (quoting and citing
Jacobson, 197 U.S. at 31, 38).
The trial court also acknowledged and
addressed the County’s argument that it was entitled
to rely on “rational speculation” to support its
Restaurant Closure Order, noting that the rational
basis test “does not allow a party to probe the
Rather than showing that it had actually considered the
probable costs or risks associated with the Restaurant Closure
Order, the County argued that the trial court could not require
the County to consider such costs or risks at all. App. 139a-40a.
4
9
decision-making processes of the government” only
“[f]or purposes of equal protection claims,” as opposed
to the substantive due process claims advanced by
CRA. App. 107a. As the trial court explained, the
substantive component of the Due Process Clause of
the Fourteenth Amendment “bars arbitrary,
wrongful, government action,” and that “[w]hile
courts do not weigh evidence when applying this test,
they must ensure that the agency has adequately
considered all relevant factors and has demonstrated
a rational connection between those factors and the
choice made.” App. 108a (citing Zinermon, 494 U.S.
at 125; Carrancho, 111 Cal. App. 4th at 1265).
Applying that governing law to the public
health context, as informed by independent experts
and the County’s own evidence, the trial court found
that “public health decisions require a risk/benefit
analysis of health restrictions. In making public
health decisions, it is important for health officials to
weigh the overall risk of the given disease to the
overall benefits of the imposed public health policy.”
App. 136a. The trial court then found, as a matter of
fact, that the County had not assessed the costs or
risks of its Restaurant Closure Order before issuing
it, notwithstanding the County’s conclusory
declarations claiming to have done so. App. 138a and
155a.
The trial court also found that the County had
not relied on any quantitative data establishing the
magnitude of any risk posed by outdoor dining; it
found that the only evidence in the record about
transmission specific to outdoor dining concluded that
10
the risk was insubstantial. App. 144a-45a and 155a.
The trial court concluded that understanding the
likely prospective benefits of a policy would be an
important consideration of a non-arbitrary and
capricious health policy. App. 156a.
Notwithstanding its conclusion that the
Restaurant Closure Order was arbitrary and
capricious, the trial court did not put an end to the
Restaurant Closure Order; it merely held that the
County could not extend that ban any further unless
and until the County conducted a risk-benefit
analysis elucidating the County’s calculus. App.
156a. Nor did the trial court dictate that the County
needed to perform any particular form of analysis.
Instead, the trial court merely stated that the County
could not extend the Restaurant Closure Order
beyond a temporary three-week period.
C.
The Appellate Court Issues A Writ
Of Mandate
The County filed a Petition for Writ of Mandate
with the Court of Appeal two days after the trial court
issued the preliminary injunction. The next day, the
Court of Appeal stayed the preliminary injunction
and issued an order to show cause.
On March 1, 2021, the Court of Appeal issued
an opinion granting the County’s writ petition and
vacating the trial court’s preliminary injunction.
App. 2a (61 Cal. App. 5th 478). The Court of Appeal
upheld the County’s Restaurant Closure Order on the
ground that the County purportedly had a rational
11
basis to believe that closing outdoor dining would
mitigate the spread of COVID-19. App. 3a (61 Cal.
App. 5th 478, 482) (“Although the [County] had no
study specifically demonstrating that outdoor
restaurant dining contributes to the spread of the
disease, [it] had a rational basis to believe it does.”).
In order to uphold the Restaurant Closure
Order, the Court of Appeal fashioned a novel test for
how agency action should be analyzed during a
pandemic. The Court of Appeal held “that courts
should be extremely deferential to public health
authorities, particularly during a pandemic, and
particularly where, as here, the public health
authorities have demonstrated a rational basis for
their actions.” App. 4a (61 Cal. App. 5th 478, 483).
Surveying Jacobson, South Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613 (2020) (“South
Bay I”), Calvary Chapel Dayton Valley v. Sisolak, 140
S. Ct. 2603 (2020), Roman Catholic Diocese, and
South Bay II, the Court of Appeal opined that agency
action must pass rational basis scrutiny, and would
fail if the agency action could be deemed “arbitrary,
capricious, or entirely lacking in evidentiary support.”
App. 17a (61 Cal. App. 5th 478, 490) (citing Davies, 79
Cal. App. 3d at 946).
However, the Court of Appeal did not discuss
the decades of case law holding that agency action is
“arbitrary and capricious if the agency has . . . entirely
failed to consider an important aspect of the problem.”
E.g., State Farm, 463 U.S. at 43. Instead, the Court
of Appeal construed the rational basis test and
arbitrary and capricious test as “identical.” App. 17a
12
(61 Cal. App. 5th 478, 490) (citing Ursack, Inc. v.
Sierra Interagency Black Bear Group, 639 F.3d 949,
958 (9th Cir. 2011)). Essentially, the Court of Appeal
ignored the trial court’s careful distinction between
equal protection claims, for which courts do not look
into governmental decision-making, and substantive
due process claims, for which courts are obligated to
ensure that agency action is not arbitrary, capricious,
or entirely lacking in evidentiary support.
Consistent with its view that extreme
deference to health agencies is required and heedless
of the case law requiring agencies to consider the
important aspects of the problem being addressed
through agency action, the Court of Appeal concluded
that
“[m]andating
a
nebulous
risk-benefit
requirement is inconsistent with the court’s
appropriate role,” and that CRA had consequently
“failed to satisfy [its] burden of demonstrating the
Order is arbitrary, capricious, or without rational
basis.” App. 23a and 25a (61 Cal. App. 5th 478, 493,
495).
D.
The Court Of Appeal Denies CRA’s
Petition For Rehearing
On March 11, 2021, CRA filed a Petition for
Rehearing in which CRA noted that the Court of
Appeal had failed to consider or discuss evidence
offered by two expert witnesses (who confirmed that
some assessment of likely risks or costs was necessary
in public health policy contexts). The Court of Appeal
denied the petition for rehearing the following day.
13
E.
The California Supreme Court
Denies CRA’s Petition For Review
On April 8, 2021, CRA filed a Petition for
Review with the Supreme Court of California seeking
review of the Court of Appeal’s March 1, 2021 opinion.
On June 9, 2021, the Supreme Court of California
denied the petition for review. App. 1a.
REASONS FOR GRANTING THE PETITION
A.
Review Is Necessary To Settle
Important Questions That Will
Recur During This Pandemic And
Future Public Health Crises
Review should be granted here because the
Court of Appeal “has decided an important question
of federal law that has not been, but should be, settled
by this Court.” Sup. Ct. R. 10(c). This Court should
issue a writ of certiorari and reverse the decision
below to clarify that generally applicable standards of
administrative law, which prohibit government
action that is “arbitrary and capricious,” apply to
government health agencies during a pandemic, even
where a non-fundamental right is abridged. As
discussed below, the Court of Appeal ignored key
aspects of that inquiry to excuse public health officials
and uphold the County’s Restaurant Closure Order,
although the trial court had ruled that the County
had “entirely failed to consider an important aspect of
the problem,” see State Farm, 463 U.S. at 43, by
ignoring the economic, social, and psychological costs
of its restaurant shutdown. Absent these safeguards
14
against arbitrary government action, the judiciary
will have abdicated its duty—recognized from
Jacobson through the present—to ensure that agency
powers are not exercised “in such an arbitrary,
unreasonable manner, or might go so far beyond what
was reasonably required for the safety of the public.”
Jacobson, 197 U.S. at 28; see also Roman Catholic
Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring)
(“Jacobson didn’t seek to depart from normal legal
rules during a pandemic, and it supplies no precedent
for doing so.”).
This case is neither sui generis nor moot.5
Judicial review of government agencies’ edicts for
arbitrary and capricious action will remain a vital and
The County may attempt to argue that this matter is
moot, notwithstanding its recent warnings about the Delta
variant of COVID-19 and its recent mandate that Los Angeles
residents must wear masks in indoor environments, an order
that its own chief law enforcement officer has said his
department will not enforce, in part because it is not supported
by science. See Sophie Kasakove, Los Angeles County’s sheriff
declines to enforce the mask mandate about to resume, N.Y.
Times, https://www.nytimes.com/2021/07/17/world/los-angelessheriff-mask.html (July 17, 2021).
The Court of Appeal
acknowledged that this matter is not moot, at the very least,
because “conditions may change and the County may re-impose
its outdoor restaurant dining ban.” App. 4a (61 Cal. App. 5th
478, 483). As a result, this matter “fits squarely within an
exception to mootness” for cases where the “(1) challenged action
is in its duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” App. 11a-12a (61 Cal. App. 5th 478, 487) (quoting Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462
(2007)).
5
15
needed check on executive authorities purportedly
exercising emergency powers, especially as the
COVID-19 pandemic hopefully begins to fade and the
necessity of extreme intervention like the Restaurant
Closure Order here at issue dissipates. However, if
the Court of Appeal’s decision is left to stand
unchecked, health officials around the country might
conclude that they have free rein to order any
regulation they desire, heedless of cost or
consequence, so long as they steer clear of the First
Amendment or other clearly defined “fundamental
rights.”6
It can be argued (as Mark’s Engine Company No. 28 did
below) that fundamental rights are in fact implicated here with
respect to the right to pursue a chosen profession and the right
to assemble. See Opp’n to Pet. for Writ of Mandate, Prohibition
or Other Appropriate Relief and Request for Stay at 14-18,
County of Los Angeles, Dep’t of Pub. Health v. Super. Ct.
(California Restaurant Ass’n, Inc.) (Cal. Ct. App. 2021) (No.
B309416) (filed by Mark’s Engine Co. No. 28); Greene v. McElroy,
360 U.S. 474, 492 (1950); Truax v. Raich, 239 U.S. 33, 41 (1915).
But, even setting aside the complicated analysis of where the
line of fundamental rights begins and ends, the Court of Appeal’s
holding contradicts the precedent it claims to follow, including
Jacobson, which expressly instructs courts to invalidate
government regulation “purporting to have been enacted to
protect the public health” but which “has no real or substantial
relation to [that] object.” Jacobson, 197 U.S. at 31. The trial
court followed that precedent and concluded that the ban was
arbitrary and had no real relation to the public health, without
any indication that outdoor dining actually posed any risk of
substantial transmission or consideration of whether the
benefits outweighed the risks. App. 142-145a and 154a-156a.
The County has now done this again with respect to its renewed
mask order (for vaccinated individuals). Sophie Kasakove, Los
Angeles County’s sheriff declines to enforce the mask mandate
6
16
Because this Court has only revisited Jacobson
in the context of fundamental rights cases—
specifically, those involving First Amendment
challenges—an absence of authority from this Court
in non-fundamental rights cases has caused lower
courts to provide extreme and unjustifiable deference
to executive agencies. These courts have concluded
that, where “non-fundamental” rights are implicated,
government regulation of individuals’ liberty cannot
be curtailed in the face of a pandemic, no matter how
slapdash or ill-considered the government action.7
That conclusion is not an exaggeration. The
logic of the Court of Appeal’s decision holds that if
there is any articulable reason to believe that some
disease transmission is possible in a given context, a
public health agency may regulate that conduct out of
existence in the name of public health.8 The Court of
about
to
resume,
N.Y.
Times,
https://www.nytimes.com/2021/07/17/world/los-angeles-sheriffmask.html (July 17, 2021).
Although CRA tends to agree with Mark’s Engine
Company No. 28 that fundamental rights are implicated here,
no discussion of that point is necessary because the trial court
found that the County’s order was arbitrary, capricious, and
entirely lacking in evidentiary support irrespective of whether
or not fundamental rights were implicated for equal protection
purposes. App. 154a-55a. Therefore, in this Petition, CRA
advances the trial court’s conclusion that the Restaurant
Closure Order is improper regardless of whether fundamental
rights are involved. The undisputed fact is that the County did
not consider the devastating consequences of its decision to close
essentially an entire industry.
7
Recently, the United States Court of Appeals for the
Ninth Circuit determined that because citizens have no
8
17
Appeal specifically rejected the notion that a
government health agency might need to consider
whether the likely benefits of a given policy outweigh
its costs, or even to appreciate what costs or risks are
implicated, even though the relevant enabling
statutes required health officials to only promulgate
“measures as may be necessary” to combat the spread
of disease. App. 157a-58a (Cal. Health & Safety Code
§§ 101040, 120175); App. 17a-18a n.5 (61 Cal. App.
5th 478, 483 n.5).
Illustrating the lack of any limiting principle to
the Court of Appeal’s decision, the County’s only basis
for prohibiting outdoor dining was the premise that
prolonged in-person interaction increased the
possibility of transmitting COVID-19. The County
had no evidence quantifying the magnitude of that
fundamental right to any particular form of public education, the
State of California could permissibly prohibit all in-person public
education under rational basis review. Brach v. Newsom, No.
20-56291, 2021 WL 3124310, at *12 (9th Cir. July 23, 2021).
However, the Ninth Circuit determined that the State could not
prohibit in-person private education on the basis of the State’s
thin evidence that “[i]t is possible that in the school setting, as
in other settings, asymptomatic transmission may occur,”
because the State “did not identify any evidence indicating that
children in a school setting would present greater risks of
transmission than some of the other activities that the State had
authorized, such as operating grocery stores, factories, daycare
centers, and shopping malls.” Id. at *18. In other words, the
Ninth Circuit recognized that government actors have some
obligation to consider the relative costs and benefits in
promulgating emergency policies, but has refused to police that
requirement outside the fundamental rights context. A decision
from this Court is needed to provide guidance when the
regulatory line is crossed in the non-fundamental rights context.
18
“risk,” nor did it consider any evidence about the costs
that would be imposed on hundreds of thousands of
Los Angeles residents who were put out of a job while
the County completely shut down restaurants, and on
restaurant workers who depended on in-person
dining to make a living.
Thus, due to the absence of guidance from this
Court in the context of actions impacting nonfundamental rights—and more specifically, where
unelected officials promulgate sweeping policies
without considering any evidence that would lead
them to act non-arbitrarily—the Court of Appeal
erred in failing to properly apply Jacobson to this
case. This Court should grant review in order to
provide this much-needed guidance, lest government
agency officials interpret the Court of Appeal’s
decision as a blank check for unlimited authority in a
pandemic so long as those officials manufacture a
remotely plausible public safety justification after the
fact.
B.
This Court Should Affirm That
Traditional Rules For Reviewing
Agency Action Are Not Dispensed
With In A Pandemic
Both the Court of Appeal and the trial court
agreed that Jacobson and more recent decisions by
this Court require that a reviewing court evaluating
substantive due process claims must review the
challenged agency action under a standard of review
akin to what is applicable to “arbitrary and
capricious” action. App. 14a-17a (61 Cal. App. 5th
19
478, 488-490); App. 43a-44a; App. 105a-106a. The
agreement of these Courts ends there. The Court of
Appeal concluded that rational basis review in a
pandemic cannot impose any requirement that a
government agency consider the important aspects of
the problem it is trying to solve. Nor, concluded the
Court, does that standard of review require an agency
to consider any evidence that might inform on the
magnitude of the likely costs or benefits of the policies
it promulgates.
That modified test absolves
government agencies from having to “examine the
relevant data and articulate a satisfactory
explanation for its action[,] including a ‘rational
connection between the facts found and the choice
made.’”
State Farm, 463 U.S. at 43 (quoting
Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962)).9 Moreover, the Court of Appeal’s
test completely discards the rule that an agency fails
to meet the arbitrary and capricious standard if it has
“failed to consider an important aspect of the problem,
offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a
California law is coterminous with federal law in
requiring that courts reviewing agency action “ensure that an
agency has adequately considered all relevant factors, and has
demonstrated a rational connection between those factors, the
choice made, and the purposes of the enabling statute.” Cal.
Hotel & Motel Ass’n v. Indus. Welfare Comm’n, 25 Cal. 3d 200,
212 (1979) (emphasis added); see also W. States Petrol. Ass’n v.
Super. Ct. (Cal. Air Res. Bd.), 9 Cal. 4th 559, 577-78 (1995)
(reversing Court of Appeal’s grant of a petition for writ of
mandate where the agency had failed to show its consideration
of factors relevant to its regulation).
9
20
difference in view or the product of agency expertise.”
Id.
The Court of Appeal’s approach engages in a
misunderstanding of this Court’s opinion in Jacobson
and its more recent decisions clarifying that Jacobson
did not modify generally applicable standards for
judicial review of administrative actions. Mistakenly
believing that this Court held that Jacobson required
only rational basis review in any context where nonfundamental rights were implicated, regardless of the
governmental actor,10 the Court of Appeal set aside
decades of administrative law requiring agencies to
consider at least some evidence or at least the
important aspects of the problems they are trying to
solve in order to avoid acting arbitrarily and
capriciously and infringing upon substantive due
process rights.
Had the Court of Appeal applied the generally
applicable administrative law analysis, as the trial
court did, it would have concluded that the County did
not consider important aspects of the public health
This Court has held that the standard in reviewing
whether action is arbitrary and capricious—applicable to review
of agencies’ quasi-legislative action—is not the same as rational
basis review. See State Farm, 463 U.S. at 44 n.9 (rejecting the
argument that “the arbitrary and capricious standard requires
no more than the minimum rationality a statute must bear in
order to withstand analysis under the Due Process Clause,”
because “[w]e do not view as equivalent the presumption of
constitutionality afforded legislation drafted by Congress and
the presumption of regularity afforded an agency in fulfilling its
statutory mandate.”).
10
21
problem it was trying to solve—namely, the economic,
psychological, and social costs of completely shutting
down the livelihoods of hundreds of thousands of Los
Angeles residents—and that the County therefore
acted arbitrarily and capriciously, in violation of those
residents’ substantive due process rights under the
Due Process Clause of the Fourteenth Amendment.
See Zinermon, 494 U.S. at 125 (“[T]he Due Process
Clause contains a substantive component that bars
certain arbitrary, wrongful government actions
‘regardless of the fairness of the procedures used to
implement them.’” (quoting Daniels, 474 U.S. at 331)).
The “core of the concept” of substantive due process is
the protection against arbitrary government action.
Hurtado, 110 U.S. at 527; see also Wolff v. McDonnell,
418 U.S. 539, 558 (1974) (“The touchstone of due
process is protection of the individual against
arbitrary action of government.” (citing Dent v. West
Virginia, 129 U.S. 114, 123 (1889))).
Here, the trial court correctly observed that
litigants may not probe government decision-making
only in the context of equal protection; conversely, in
this substantive due process challenge, government
actors are not allowed to “rationally speculate,” and
instead must demonstrate that they have considered
all relevant factors and demonstrate a rational
connection between those factors and the choice
made. See App. 139a-42a.
Because the relevant enabling statutes vest
discretion in the public health officer to determine
what measures “may be necessary” to combat the
spread of disease, the trial court concluded that the
22
County must at least consider the relative magnitude
of risks or costs on the one hand and the magnitude
of prospective benefits that would be gained from the
outdoor dining ban on the other hand. App. 155a-56a.
The trial court found, as a matter of fact, that the
County had failed to consider those factors prior to
issuing the outdoor dining ban. In other words, the
County had “failed to consider . . . important aspect[s]
of the problem” before implementing the outdoor
dining ban. See Dep’t of Homeland Sec. v. Regents of
the Univ. of Cal., 140 S. Ct. 1891, 1910, 1913 (2020)
(omission and alteration in original) (quoting State
Farm, 463 U.S. at 43); see also Michigan v. EPA, 576
U.S. 743, 752 (2015) (enabling statute authorizing
agencies to take actions that are “appropriate and
necessary” “requires at least some attention to cost”);
Indus. Union Dep’t v. Am. Petrol. Inst., 448 U.S. 607,
642-44 (1980) (authorizing statute’s use of
“reasonably necessary or appropriate” qualifier
required “some cost-benefit analysis before [the
Occupational Safety and Health Administration]
promulgates any standard”).
However, by
repudiating any consideration of relative cost and
benefit, the Court of Appeal abdicated its
responsibility to conduct even rational basis review,
much less arbitrary and capricious review. Michigan,
576 U.S. at 752 (“One would not say that it is even
rational, never mind ‘appropriate,’ to impose billions
of dollars in economic costs in return for a few dollars
in health or environmental benefits.”).
Reversing the trial court, the Court of Appeal
held that “[m]andating a nebulous risk-benefit
requirement is inconsistent with the court’s
23
appropriate role.” App. 23a (61 Cal. App. 5th 478,
493). All that is required, opined the Court of Appeal,
is that the County has “rationally speculated” that its
regulation would have some impact—without any
consideration of its size or cost—on public health. See
App. 22a-25a (61 Cal. App. 5th 478, 493-95) (relying
on claims that outdoor dining presents a “higher” risk
of transmission as justifying the County’s
determination that the Restaurant Closure Order
was “necessary”). This logic knows no bounds.
Under the Court of Appeal’s standard of
review, a government health agency could prohibit all
in-person interaction whatsoever without even
considering the costs because any in-person
interaction creates a “higher” risk of transmission.
See App. 24a-25a (61 Cal. App. 5th 478, 493-95).
Health officials could order all citizens to not sleep in
the same bed as a spouse or loved one who has
recently left their residence using the same rationale.
Health officials could claim authorization to ban all
car travel on the grounds that such travel poses an
unmitigatable risk of fatal accidents that would
contribute to overwhelming the hospital system.11 A
government agency could prohibit igniting flames in
Lest the Court view this suggestion as inapposite to the
exigencies imposed by a pandemic, the National Highway Traffic
Safety Administration has also concluded that highway
fatalities have increased as a result of the COVID-19 pandemic.
See Office of Behavioral Safety Research, Update to Special
Reports on Traffic Safety During the COVID-19 Public Health
Emergency: Third Quarter Data, https://www.nhtsa.gov/sites/
nhtsa.dot.gov/files/documents/traffic_safety_during_covid19_01
062021_0.pdf (Jan. 2021).
11
24
private residences when wildfires rage in California
because of the risk that a domestic kitchen fire could
tap scarce firefighting resources. Or, perhaps more
relevant here, the Court of Appeal is holding that
California public health agencies could issue an order
to force COVID-19 vaccinations on all citizens without
even considering the potential risks such a decision
might pose for sensitive populations. Cf. Jacobson,
197 U.S. at 29-30. Is this Court ready to countenance
such an order? Per the Court of Appeal, public health
agencies need not even consider the disproportionate
cost-benefit relationship of any of these measures, as
long as fundamental constitutional rights are not
implicated. App. 14a-15a (61 Cal. App. 5th 478, 488489).
Cases invalidating health agency action during
a pandemic demonstrate that the specific nature of
the right at issue is not, in and of itself, dispositive.
As Justice Gorsuch explained in both Roman Catholic
Diocese and South Bay II, “Jacobson didn’t seek to
depart from normal legal rules during a pandemic,
and it supplies no precedent for doing so.” Roman
Catholic Diocese, 141 S. Ct. at 70 (Gorsuch, J.,
concurring); see also South Bay II, 141 S. Ct. at 718
(Gorsuch, J., concurring) (“It has never been enough
for the State to insist on deference or demand that
individual rights give way to collective interests.”).
Even in cases like Jew Ho v. Williamson, 103 F. 10,
24 (C.C.N.D. Cal. 1900) and Wong Wai v. Williamson,
103 F. 1, 9 (C.C.N.D. Cal. 1900), where the courts
invalidated Chinatown quarantines targeting Asian
Americans, the courts took pains to observe that the
government “may not, under the guise of protecting
25
the public interests, arbitrarily interfere with private
business, or impose unusual and unnecessary
restrictions upon lawful occupations.” Jew Ho, 103 F.
at 20 (quoting Lawton v. Steele, 152 U.S. 133, 137
(1894)); see also Wong Wai, 103 F. at 7. Put simply,
each of these cases affirmed that generally applicable
administrative rules requiring government agencies
to not act arbitrarily, capriciously, or entirely without
evidentiary support apply, even in a pandemic.
In stark contrast to the Court of Appeal’s
failure to restrain enforcement of the County’s
Restaurant Closure Order, the court in County of
Butler v. Wolf performed the necessary review of an
overbroad and unjustified health regulation. See
County of Butler v. Wolf, 486 F. Supp. 3d 883, 922
(W.D. Pa. 2020) (“Wolf”) (“Rational basis review is a
forgiving standard for government acts, but it ‘is not
a toothless one . . . .’” (omission in original) (quoting
Mathews v. Lucas, 427 U.S. 495, 510 (1976)), stay
granted, No. 20-2936, 2020 WL 5868393 (3rd Cir. Oct.
1, 2020).12 In Wolf, the federal district court held that
Recognizing that even emergency powers have limits,
courts across the country have invalidated overbroad,
overreaching or arbitrary directives purportedly justified as
“necessary” to combat COVID-19. See, e.g., League of Indep.
Fitness Facilities & Trainers, Inc. v. Whitmer, 468 F. Supp. 3d
940, 948-99 (W.D. Mich. 2020), appeal dismissed as moot, 843 F.
App’x 707 (6th Cir. 2021) (even under the highly deferential
Jacobson and South Bay I standard, the state failed to introduce
evidence that demonstrated a rational relationship between
closing indoor gyms and public health when other similar
activities were permitted); Gym 24/7 Fitness, L.L.C. v.
Michigan, No. 20-000132-MM, 2020 WL 6050543, at *3 (Mich.
Ct. Cl. Sep. 24, 2020) (state was not entitled to summary
12
26
an order closing all “non-life-sustaining” businesses
with no end date was arbitrary and capricious
precisely because the government offered no objective
criteria for determining whether a business was “lifesustaining” or not, and thereby added “a governmentinduced cloud of uncertainty to the usual
unpredictability of nature and life,” running afoul of
the constitutional “protection against arbitrary
government action.” Wolf, 486 F. Supp. 3d at 921-22
(citing County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998)). There, the court performed its role: it
checked arbitrary government action to protect its
constituents from the uncontested negative
consequences that flowed from that arbitrariness.
Requiring government agencies to consider the
costs of their policies and avoiding arbitrary
government action is all the more necessary now and
disposition on allegedly arbitrary regulations in the absence of
“documentary evidence suggesting whether the state relied on
these materials, or any other evidence, in its decision-making”);
Hund v. Cuomo, 501 F. Supp. 3d 185, 200-201 (W.D.N.Y. 2020)
(substantive due process challenge survived motion to dismiss
where regulation impeded pursuit of common professions); see
also Robinson v. Att’y Gen., 957 F.3d 1171, 1182 (11th Cir. 2020)
(state failed to justify limitations on abortions as necessary to
combat COVID-19); Preterm-Cleveland v. Att’y Gen. of Ohio, 456
F. Supp. 3d 917, 939 (S.D. Ohio 2020) (same); S. Wind Women’s
Ctr. v. Stitt, 455 F. Supp. 3d 1219, 1222 (W.D. Okla.), appeal
dismissed as moot, 823 F. App’x 677 (10th Cir. 2020) (same);
Ramsek v. Beshear, 468 F. Supp. 3d 904, 921 (E.D. Ky. 2020)
(blanket prohibition on gathering in large groups was
unconstitutionally overbroad), appeal dismissed as moot, 989
F.3d 494, 501 (6th Cir. 2021); Tabernacle Baptist Church, Inc. v.
Beshear, 459 F. Supp. 3d 847, 854-55 (E.D. Ky. 2020) (same).
27
going forward, in the remaining days of a dynamic
pandemic, when emergency health policies will have
questionable utility relative to the costs such policies
impose. As this Court’s decisions over the course of
the past year show, we are too far along in the
pandemic and our understanding of how COVID-19 is
transmitted to rely on pure exigency and speculation,
rational as it may be, as a reason to defer to public
health officials. In South Bay I (decided on May 29,
2020), a plurality of this Court held that the
exigencies of the then-new pandemic required
extreme deference to public health officials, even in
the face of a challenge to California’s public health
restrictions on First Amendment grounds. See South
Bay I, 140 S. Ct. at 1613. But in Roman Catholic
Diocese (November 25, 2020) and South Bay II
(February 5, 2021), months later in the course of the
pandemic, this Court held that such extreme
deference was no longer required, especially where
the litigants in those cases had established that the
government contravened constitutional rights by
favoring certain potentially COVID-19 spreading
activities over others. Roman Catholic Diocese, 141
S. Ct. at 66; South Bay II, 141 S. Ct. at 718.
Consistent with that authority, the trial court
correctly held that the County’s complete lack of
evidence quantifying the risk associated with outdoor
dining—and its failure to consider the mounting
evidence of the opposite, as reflected in CRA’s
submission and the record below—could not be
excused nine months into the pandemic. App. 142a45a. Established rules governing administrative
action, including those requiring basic considerations
28
of cost and benefit, must apply at some point. CRA is
not challenging a broad-based shutdown order
designed to handle an unstudied exigency, but rather
a narrowly tailored order that, nine months into the
pandemic, banned only outdoor dining while
contemporaneously permitting other businesses, such
as indoor/outdoor dining in the entertainment
industry, public parks with eating areas, and even
indoor hair and nail salons, to continue to operate,
even though the only scientific evidence available
(and certainly the only evidence in the record specific
to outdoor dining) showed that such measures were
unlikely to have any serious impact in curbing
COVID-19 transmission.
C.
Absent Review, Government Actors
Will Resist Takings Clause Claims
By Claiming That Shutdown Orders
Were Justifiable Regulations
This Court should also grant certiorari because
the decision of the California Supreme Court leaving
intact the flawed opinion of the Court of Appeal has
implications across other areas of constitutional law.
In particular, the Court of Appeal’s decision has
important ramifications for Takings Clause
jurisprudence. If the Court of Appeal’s order stands,
affirming that the County was justified in completely
shutting down outdoor dining in the name of public
health, governmental defendants may rely on that
decision to avoid paying just compensation for their
various takings under the Fifth Amendment. This
Court should grant certiorari to prevent these
governmental defendants from avoiding the Fifth
Amendment.
29
The United States Constitution states that “No
person shall be . . . deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just
compensation.” U.S. Const. amend. V. The Fifth
Amendment “is designed not to limit the
governmental interference with property rights per
se, but rather to secure compensation in the event of
otherwise proper interference amounting to a taking.
Thus, government action that works a taking of
property
rights
necessarily
implicates
the
constitutional obligation to pay just compensation.”
First Eng. Evangelical Lutheran Church v. County of
Los Angeles, 482 U.S. 304, 315 (1987) (citation and
internal quotation marks omitted). This Court has
long recognized that the constitutional prohibition on
takings without compensation extends past physical
intrusions. “[I]f regulation goes too far it will be
recognized as a taking.” Pa. Coal Co. v. Mahon, 260
U.S. 393, 415 (1922).
A property owner can show that a government
action is a taking, without physical intrusion, in two
circumstances: “when the owner of real property has
been called upon to sacrifice all economically
beneficial uses in the name of the common good,”
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019
(1992), and when there is a regulatory taking under
the rule established in Penn Central, 438 U.S. at 123.
Here, the County’s order shutting down all inperson dining in Los Angeles County gives rise to
takings claims. First, plaintiffs will be able to easily
establish clear diminution in value. In the trial court,
30
CRA introduced dozens of declarations highlighting
the ruinous economic impact of the Restaurant
Closure Order on restaurants within Los Angeles
County. App. 53a. As here, when a regulation
imposes a “considerable financial burden” on a party,
it supports a finding that there has been a taking. E.
Enters. v. Apfel, 524 U.S. 498, 529 (1998). These are
the sorts of burdens that fall squarely within Fifth
Amendment protection. See Penn Central, 438 U.S.
at 123-24 (“[T]he ‘Fifth Amendment’s guarantee . . .
[is] designed to bar Government from forcing some
people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as
a whole.’” (omission and second alteration in original)
(quoting Armstrong v. United States, 364 U.S. 40, 49
(1960))).
Next, there has been an obvious interference
with reasonable investment-backed expectations. See
generally Palazzolo v. Rhode Island, 533 U.S. 606, 627
(2001). Restaurant owners have designed their
businesses to serve food. Suddenly, and with no
meaningful warning, they were prohibited from doing
so. Those same restaurants had, in many cases,
invested significant money and time into
implementing outdoor dining options. App. 53a. The
Restaurant Closure Order did not just interfere with
those expectations, it made them entirely valueless;
nor is the County’s order protected from being
classified as a taking just because it was temporary.
See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg’l Planning Agency, 535 U.S. 302, 335-36 (2002)
(temporary takings are still analyzed within the Penn
Central framework).
31
However, lower courts analyzing the final
factor, the “character of the government action,” may
be inclined to conclude that only a total ban on dining
activity, instead of all on-premises dining, has the
character to constitute a taking, although the latter
undisputedly imposes a devastating financial
condition on restaurant owners, should this Court
allow the Court of Appeal’s decision to stand.
Compare, e.g., MHC Fin. Ltd. P’ship v. City of San
Rafael, 714 F.3d 1118, 1128 (9th Cir. 2013) (a rent
control ordinance was not a taking where “the
Ordinance is much more an ‘adjust[ment of] the
benefits and burdens of economic life to promote the
common good’ than it is a physical invasion of
property”) (quoting Penn Central, 438 U.S. at 124)
with Hodel v. Irving, 481 U.S. 704, 716 (1987) (a
taking exists when “the character of the Government
regulation here [was] extraordinary” because “the
regulation destroyed one of the most essential sticks
in the bundle of rights that are commonly
characterized as property”) (citations and internal
quotation marks omitted). See also Cienega Gardens
v. United States, 331 F.3d 1319, 1338 (Fed. Cir. 2003)
(“The character of the government’s action is that of a
taking of a property interest, albeit temporarily, and
not an example of government regulation under
common law nuisance or other similar doctrines,
which we would treat differently.”); Am. Pelagic
Fishing Co. v. United States, 49 Fed. Cl. 36, 47 (2001),
rev’d and remanded on other grounds, 379 F.3d 1363
(Fed. Cir. 2004) (“The relevant stick in the bundle in
this context is the right to use the Atlantic Star to
fish, subject to regulation.”).
32
Thus, absent guidance ensuring that arbitrary
exercises of government authority in the name of
public health are not “adjusting the benefits and
burdens of economic life to promote the common
good,” Penn Central, 438 U.S. at 124, lower courts
may ultimately hold that arbitrary and overreaching
government regulations do not amount to a taking.
That risk is heightened in the COVID-19 context
because these regulations will be easily “justified”
under Jacobson as interpreted by the Court of Appeal,
because any restriction on an economic use of private
property (at least, any use involving people
interacting in-person) could be justified as a nonarbitrary exercise of public health authorities’ powers
to prevent the spread of COVID-19, no matter how
significant an infringement on property rights.
As a result, allowing the County’s Restaurant
Closure Order to stand undisturbed would cast
significant doubt on what should be straightforward
Takings Clause claims, and raises important
questions of federal law that have not been, but
should be, settled by this Court.
CONCLUSION
For the reasons set forth above, a writ of
certiorari should issue to review the decision of the
California Court of Appeal and, ultimately, to reverse
that decision and render a decision in favor of CRA.
33
Dated: July 30, 2021
Respectfully submitted,
BROWNE GEORGE ROSS BROWNE GEORGE ROSS
O’BRIEN ANNAGUEY & O’BRIEN ANNAGUEY & ELLIS
ELLIS LLP
LLP
Dennis S. Ellis
Carl Alan Roth
Counsel of Record Noah S. Helpern
Eric M. George
Richard A. Schwartz
Katherine F. Murray
801 S. Figueroa Street
Ryan Q. Keech
Suite 2000
Lori Sambol Brody
Los Angeles, CA 90017
2121 Avenue of the
T: (213) 725-9800
Stars, Suite 2800
Los Angeles, CA 90067
T: (310) 274-7100
dellis@bgrfirm.com
Attorneys for Petitioner, California Restaurant
Association, Inc.
APPENDIX
1a
Appendixof
A the Supreme
Appendix A — Order
Court of THE STATE OF California,
Filed June 9, 2021
Court of Appeal
Second Appellate District
Division Four
No. B309416
S268101
IN THE SUPREME COURT OF CALIFORNIA
En Banc
COUNTY OF LOS ANGELES, DEPARTMENT
OF PUBLIC HEALTH, et al.,
Petitioners,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent,
CALIFORNIA RESTAURANT ASSOCIATION, INC.,
et al.,
Real Parties in Interest.
The petitions for review are denied.
CANTIL-SAKAUYE
Chief Justice
Filed: June 9, 2021
2a
Appendix of
B the COURT OF
Appendix B — opinion
APPEAL OF the state of CALIFORNIA,
SECOND APPELLATE DISTRICT, DIVISION
FOUR, FILED March 1, 2021
COURT OF APPEAL OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B309416
COUNTY OF LOS ANGELES DEPARTMENT
OF PUBLIC HEALTH, et al.,
Petitioners,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent,
CALIFORNIA RESTAURANT
ASSOCIATION, INC., et al.,
Real Parties in Interest.
March 1, 2021, Opinion Filed
Opinion by Currey, J., with Manella, P. J., and Willhite,
J., concurring.
3a
Appendix B
INTRODUCTION
At a time when infection rates were surging, and
Southern California’s intensive care units were about to be
overwhelmed by COVID-19 patients, Los Angeles County’s
Department of Public Health issued an emergency order
temporarily prohibiting outdoor restaurant dining. Indoor
restaurant dining had already been banned. Although the
Department and its leadership (collectively, the County)
had no study specifically demonstrating that outdoor
restaurant dining contributes to the spread of the disease,
they had a rational basis to believe it does.
For example, it is undisputed that the disease spreads
through airborne transmission from an infected person
(who may be asymptomatic) to an uninfected member of
the community, if the latter receives a sufficient dose to
overcome his or her defenses. The risk of transmission
thus increases when people from different households
gather in close proximity for extended periods without
masks or other face coverings. The risk also increases
with unmasked talking and laughter. These conditions are
often all present when people dine together in restaurants,
whether indoors or out.
According to the County’s Chief Medical Officer and
Director of Disease Control, the wide consensus in the
public health field is that pandemic risk reduction does
not require definitive proof that a particular activity
or economic sector is “the” cause of an increase in
cases. Rather, best practices dictate that public health
departments take steps to mitigate identified risks,
particularly as infection rates and hospitalizations surge.
4a
Appendix B
In these consolidated cases, the trial court enjoined
the County’s order temporarily banning outdoor
restaurant dining until the County performed a riskbenefit analysis acceptable to the court. We issued a stay
and an order to show cause why the lower court’s order
should not be set aside. We now hold that courts should
be extremely deferential to public health authorities,
particularly during a pandemic, and particularly where,
as here, the public health authorities have demonstrated
a rational basis for their actions. Wisdom and precedent
dictate that elected officials and their expert public health
officers, rather than the judiciary, generally should decide
how best to respond to health emergencies in cases not
involving core constitutional freedoms. Courts should
intervene only when the health officials’ actions are
arbitrary, capricious, or otherwise lack a rational basis,
or violate core constitutional rights, which demonstrably
is not the case here.
Thankfully, during the pendency of this petition,
infection rates declined and ICU availability increased,
causing the Governor to rescind a similar prohibition on
outdoor dining at restaurants, and the County to lift its
prohibition as well. While we hope we do not see another
surge, we recognize that conditions may change and the
County may re-impose its outdoor restaurant dining ban.
Thus, the cases are not moot. Accordingly, we issue a
peremptory writ of mandate directing the trial court to
set aside its order granting a preliminary injunction, and
to instead deny the motions seeking that relief.
This does not mean we are unsympathetic to the plight
of restaurant owners and their employees, or to those in so
5a
Appendix B
many other sectors who have had their livelihoods taken
away and personal finances decimated by the pandemic.
Far from it. Both the disease itself and its economic
consequences have harmed people and communities
unequally, sometimes devastatingly so. But whether, when,
and how a risk-benefit calculus should be performed, and
whether existing orders should be altered to mitigate their
costs, is a matter for state and local officials to decide. The
Los Angeles County Board of Supervisors considered the
restaurant industry’s objections to the order prohibiting
outdoor dining at restaurants, but declined (by a majority
vote) to rescind the order. On these facts, we will not
disturb that decision.
FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2020, Governor Newsom declared a
“State of Emergency,”1 in response to the global outbreak
of COVID-19, “a new disease, caused by a novel (or
new) coronavirus that has not previously been seen in
humans.” (Centers for Disease Control and Prevention,
Coronavirus Disease, COVID-19, Frequently Asked
Questions, What is COVID-19? (Feb. 2, 2021) <https://
1. The California Emergency Services Act empowers state
and local governments to declare emergencies and coordinate
efforts to provide services. (Gov. Code, §§ 8550–8669.7.) A “state
of emergency” means “the existence of conditions of disaster or
of extreme peril to the safety of persons and property within the
state caused by conditions” including an “epidemic” and “which,
by reason of their magnitude, are or are likely to be beyond the
control of” any single county or city and “require the combined
forces of a mutual aid region or regions.” (Gov. Code, § 8558.)
6a
Appendix B
www.cdc.gov/coronavirus/2019-ncov/faq.html> [as of Mar.
1, 2021].) To limit the spread of COVID-19, on March 19,
2020, Governor Newsom issued a Stay-at-Home Order,
requiring California residents to remain in their homes
except when engaging in essential activities.
Since March 2020, the County has also issued a series
of health orders to combat the spread of COVID-19. These
orders have been modified in response to hospitalization
and death rates, and scientists’ evolved understanding
of how the virus is transmitted. The County’s June 1,
2020 order prohibited restaurants from providing indoor
dining, but permitted them to offer outdoor dining if
they followed safety protocols set forth in the order.
On November 19, 2020, the County imposed further
restrictions on outdoor dining, including that dining must
be reduced by 50 percent or tables must be repositioned
so that they are at least eight feet apart.
On November 22, 2020, the County announced that,
effective November 25, 2020, it would temporarily prohibit
both indoor and outdoor dining at restaurants, breweries,
wineries, and bars to combat the alarming surge in
COVID-19 hospitalizations and deaths (“Order”). Under
the Order, restaurants were permitted to continue takeout, delivery, and drive-through services.
In response to the Order, the California Restaurant
Association, Inc. (CRA) and Mark’s Engine Company
No. 28 Restaurant LLC (Mark’s) (collectively, the
“Restaurateurs”), filed separate suits against the County
in respondent Los Angeles County Superior Court.
7a
Appendix B
CRA alleged the County “shut down outdoor dining
without relying on or making available to the public any
competent scientific, medical, or public health evidence
stating that outdoor dining poses a substantial risk of
unacceptably increasing the transmission of COVID-19.”
It brought claims for (1) writ of traditional mandate;
(2) writ of administrative mandate; (3) declaratory and
injunctive relief; and (4) violation of due process and equal
protection. Similarly, Mark’s alleged the Order “is an
abuse of Defendants’ purported ‘emergency powers’ and
is neither grounded in science, evidence nor logic, and thus
should be deemed and adjudicated … to be unenforceable
as a matter of law.” It brought claims for (1) declaratory
judgment; and (2) infringement of its right to liberty (Cal.
Const., art. I, § 1). 2
On November 24, 2020, the trial court denied CRA’s
ex parte application to stay the Order for failure to
present sufficient evidence to make a prima facie case.
It permitted CRA to renew its application, however, as
one for a temporary restraining order (TRO) and an
order to show cause re: preliminary injunction (OSC) if it
“presented evidence that the restrictions are unsupported
2. Neither CRA nor Mark’s, however, argues in this writ
proceeding that the Order violates its right to liberty under
the California Constitution or the equal protection clause of the
Fourteenth Amendment, except for Mark’s cursory statement that
the Order “had a disparate impact on [Mark’s] and has unfairly
targeted the restaurant industry, despite the total lack of scientific
evidence … .” We therefore deem these arguments abandoned.
(Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th
1150, 1171, fn. 12 [201 Cal. Rptr. 3d 390].)
8a
Appendix B
and of irreparable harm.” On December 1, 2020, the court
also denied Mark’s separate ex parte application, but
permitted it to file a new ex parte application for a TRO
and OSC. The trial court later denied CRA’s and Mark’s
ex parte applications for a TRO, but issued an OSC and
set the consolidated actions for hearing.
While this action was pending in the trial court,
Governor Newsom issued a “Regional Order,” which took
effect on December 5, 2020. The Regional Order, among
other things, prohibited indoor and outdoor dining at
restaurants in the Southern California region in the event
available ICU beds in the region fell below 15 percent of
capacity. The Regional Order was to remain in effect for
at least three weeks and, after that period, would be lifted
if the region’s ICU availability projection for four weeks
equaled or exceeded 15 percent of capacity.
On December 8, 2020, the trial court held a hearing on
the OSC. On December 15, 2020, the trial court entered
an order enjoining the County from enforcing or enacting
any County ban on outdoor dining after December 16,
2020, unless and until its public health officers “conduct[]
an appropriate risk-benefit analysis and articulate it for
the public to see.”
The County petitioned this court for a writ of
mandate directing respondent court to immediately
stay the preliminary injunction, and issue a peremptory
writ commanding respondent court to set aside the
injunction. We stayed the preliminary injunction order
and issued an order to show cause on December 18, 2020.
9a
Appendix B
The Restaurateurs filed a return, and the County filed
a reply. 3 We also granted the applications of the City
of Santa Clarita, Golden Gate Restaurant Association,
Bicycle Casino, LP, et al., and Restaurant Law Center to
file amicus briefs in support of the Restaurateurs.
While this writ petition was pending, on January 25,
2021, the Governor lifted the Regional Order based on the
latest projections of improved regional ICU availability.
The County also announced on January 25, 2021 that it
3. CRA requests we take judicial notice of nine documents.
Exhibits 1 through 5 are printouts from the Centers for Disease
Control and Prevention and the County of Los Angeles Public
Health websites purporting to demonstrate that federal and Los
Angeles County health authorities conduct risk-benefit analyses in
connection with determinations about public health policy. These
documents were not presented to the trial court, and we decline
to judicially notice them. (See Brosterhous v. State Bar (1995)
12 Cal.4th 315, 325–326 [48 Cal. Rptr. 2d 87, 906 P.2d 1242] [“An
appellate court may properly decline to take judicial notice under
Evidence Code sections 452 and 459 of a matter which should have
been presented to the trial court for its consideration in the first
instance. [Citations.]”].) We also deny CRA’s request to judicially
notice exhibits 8 and 9, minute orders dated December 16, 2020,
and December 17, 2020, in Midway Ventures, LLC v. County of
San Diego, case No. 37-2020-00038194-CU-CR-CTL. We do not
consider unpublished trial court orders in other cases as authority
and, in any event, the Court of Appeal reversed the trial court
on the ground it “erred by entering an overbroad injunction that
was unsupported by the law.” (Midway Venture LLC v. County of
San Diego (2021) 60 Cal.App.5th 58 [___ Cal. Rptr. 3d ___].) We
grant CRA’s request to judicially notice exhibits 6 and 7, County
orders dated December 11, 2020, and December 27, 2020. (Evid.
Code, § 452, subd. (h).)
10a
Appendix B
would permit outdoor dining at restaurants beginning
January 29, 2021, but with significant restrictions
(including minimum specified distances between tables,
requiring servers to wear face coverings at all times and
patrons to do so unless eating or drinking, and a new
requirement that diners may only be seated at a table
with members of their own household).
DISCUSSION
A. Standard of Review
We generally review the grant of a preliminary
injunction for abuse of discretion. (Sahlolbei v. Providence
Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145 [5
Cal. Rptr. 3d 598].) In exercising its discretion, the court
must consider “two interrelated factors: the likelihood
the moving party ultimately will prevail on the merits,
and the relative interim harm to the parties from the
issuance or nonissuance of the injunction. [Citation.]”
(Hunt v. Superior Court (1999) 21 Cal.4th 984, 999 [90
Cal. Rptr. 2d 236, 987 P.2d 705].) “A trial court may
not grant a preliminary injunction, regardless of the
balance of interim harm, unless there is some possibility
that the plaintiff will ultimately prevail on the merits
of the claim. [Citation.] ‘Where there is … no likelihood
that the plaintiff will prevail, an injunction favoring the
plaintiff serves no valid purpose and can only cause
needless harm.’ [Citation.]” (Aiuto v. City & County of
San Francisco (2011) 201 Cal.App.4th 1347, 1361 [135
Cal. Rptr. 3d 617].) Where “the determination on the
likelihood of a party’s success rests on an issue of pure
11a
Appendix B
law not presenting factual issues to be resolved at trial,
we review the determination de novo. [Citation.]” (14859
Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.
App.4th 1396, 1403 [74 Cal. Rptr. 2d 712].) For the reasons
discussed below, we conclude the trial court failed to apply
the proper deferential standard for evaluating state and
local agencies’ responses to public health emergencies.
Under the correct standard, there is no likelihood the
Restaurateurs will prevail on the merits of their claims.
The trial court therefore abused its discretion by issuing
a preliminary injunction.
B. This Action Is Not Moot
As stated above, while this writ was pending, the
County lifted its prohibition on outdoor dining based on
the latest data demonstrating a decline in daily case and
hospitalization rates. This matter is not moot, however.
(See Roman Catholic Diocese of Brooklyn v. Cuomo
(2020) 592 U.S ___ [208 L.Ed.2d 206, 210, 141 S.Ct. 63,
68] (per curiam) (Roman Catholic Diocese) [holding the
applications to enjoin an order restricting attendance at
religious services were not moot despite those restrictions
being lifted during the pendency of the action because
“the applicants remain under a constant threat” that those
restrictions may be reinstated as the COVID-19 pandemic
evolves].) The County has made it clear that it may reimpose its prohibition on outdoor dining if the region faces
another surge. This matter therefore fits squarely within
an exception to mootness: “‘(1) the challenged action is in
its duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation
12a
Appendix B
that the same complaining party will be subject to the
same action again.’ [Citation.]” (Federal Election Comm’n
v. Wisconsin Right to Life, Inc. (2007) 551 U.S. 449, 462
[168 L.Ed.2d 329, 127 S.Ct. 2652]; see also Amgen Inc. v.
California Correctional Health Care Services (2020) 47
Cal.App.5th 716, 728 [260 Cal. Rptr. 3d 873] [an appellate
court retains “‘discretion to decide a moot issue if the case
presents an issue of “‘substantial and continuing public
interest’” and is capable of repetition yet evades review.’
[Citation.]”].)
C. The Order Is Not a Plain, Palpable Invasion of
Rights Secured by the Fundamental Law and
Is Rationally Related to Limiting the Spread of
COVID-19
a.
Jacobson and Its Progeny
More than 100 years ago, the United States Supreme
Court established the extremely deferential standard of
review applicable to emergency exercises of governmental
authority during a public health emergency. In 1905,
the Supreme Court upheld a mandatory vaccination law
against a substantive due process challenge. (Jacobson
v. Massachusetts (1905) 197 U.S. 11, 39 [49 L.Ed. 643, 25
S.Ct. 358] (Jacobson).) It stated: “Upon the principle of
self-defense, of paramount necessity, a community has
the right to protect itself against an epidemic of disease
which threatens the safety of its members.” (Id. at p. 27.)
Thus, government action that “purport[s] to … protect
the public health” in such an emergency will be upheld,
unless it “has no real or substantial relation” to the object
13a
Appendix B
of public health or is “beyond all question, a plain, palpable
invasion of rights secured by the fundamental law.” (Id.
at p. 31.)
Jacobson predates the tiers of scrutiny used in modern
constitutional law. Some (including the Restaurateurs)
have questioned its continued vitality and applicability
to state and local responses to the COVID-19 pandemic.
(See Delaney v. Baker (D.Mass., Jan. 6, 2021, No. 2011154-WGY) 2021 U.S.Dist. Lexis 1567 [collecting some
criticism of Jacobson, particularly as applied to 1st
Amend. challenges to pandemic restrictions].)
Jacobson was cited both positively and negatively
in both concurrences and dissents in the recent series
of United States Supreme Court cases adjudicating
challenges to emergency exercises of state authority in
the current pandemic based on the free exercise clause
of the First Amendment. The Supreme Court had ample
opportunity to overrule Jacobson, but did not. (See,
e.g., South Bay United Pentecostal Church v. Newsom
(2020) 592 U.S. ___ [207 L.Ed.2d 154, 140 S.Ct. 1613]
(per curiam) (South Bay I); Calvary Chapel Dayton
Valley v. Sisolak (2020) 591 U.S. ___ [207 L.Ed.2d 1129,
140 S.Ct. 2603] (mem.) (Calvary Chapel Dayton Valley);
Roman Catholic Diocese, supra, 592 U.S. ___ [141 S.Ct.
63] (per curiam); South Bay United Pentecostal Church
v. Newsom (2021) 592 U.S. ___ [141 S.Ct. 716] (mem.)
(South Bay II).)
In the first two cases, South Bay I and Calvary
Chapel Dayton Valley, the Supreme Court declined to
14a
Appendix B
enjoin pandemic restrictions despite Free Exercise Clause
challenges. In Roman Catholic Diocese and South Bay
II, however, it enjoined health orders, concluding the
orders unlawfully discriminated against religious groups.
The different outcomes may be attributed to factual
differences, and/or to the fact that Justice Amy Coney
Barrett joined the court. In any event, the dissenters in
South Bay I and Calvary Chapel Dayton Valley were in
the majority in the later cases.
Under precepts of stare decisis, it is our role to
harmonize Jacobson and these recent cases. We do so
without difficulty. Jacobson admonished that “no rule
prescribed by a State, nor any regulation adopted by a
local governmental agency acting under the sanction of
state legislation” to protect public health may “contravene
the Constitution of the United States, nor infringe any
right granted or secured by that instrument.” (Jacobson,
supra, 197 U.S. at p. 25.) Roman Catholic Diocese and
South Bay II enjoined application of public health orders
that the majorities concluded violated the Free Exercise
Clause because public officials failed to demonstrate that
the distinctions drawn between houses of worship and
secular businesses were based on scientific or medical
expertise. This is fully consistent with Jacobson. As Chief
Justice Roberts wrote in his concurrence in South Bay II,
in a clear reference to his earlier reliance on Jacobson in
South Bay I, “I adhere to the view that the ‘Constitution
principally entrusts the safety and the health of the people
to the politically accountable officials of the States.’ … But
the Constitution also entrusts the protection of the people’s
rights to the Judiciary … . Deference, though broad, has
15a
Appendix B
its limits.” (South Bay II, supra, 592 U.S. at p. ___ [141
S.Ct. at p. 717], citation omitted (conc. opn. of Roberts,
C. J.); see also Thaler, The Next Surges Are Here: What
Can American Governments Lawfully Do In Response
to the Ongoing COVID-19 Pandemic? (2021) 42 Mitchell
Hamline L.J. Pub. Pol’y & Prac. 165.)
In any event, the substantive due process claims
advanced by the Restaurateurs are analyzed in essentially
the same way under Jacobson or employing modern
rational basis review.4 (See Roman Catholic Diocese,
supra, 592 U.S. at p. ___ [141 S.Ct. at pp. 69–71] (conc.
opn. of Gorsuch, J.) [equating Jacobson and rational basis
review].)
We agree with the following summary of the current
state of the law as laid out by Justice Kavanaugh in his
dissenting opinion in Calvary Chapel Dayton Valley,
supra, 591 U.S. at p. ___ [140 S.Ct. at pp. 2614–2615], and
believe a majority of the United States Supreme Court
would, too. It reconciles Jacobson with the Supreme
Court’s most recent cases and indicates the Restaurateurs’
claims in this case should be resolved by extending great
deference to the State and County, per Jacobson:
“[C]ourts should be very deferential to the
States’ line-drawing in opening businesses
4. We note some courts appear to interpret the Jacobson
test as more deferential than the rational basis standard. (See,
e.g., Calvary Chapel v. Mills (D.Me. 2020) 459 F.Supp.3d 273,
284 [“while such an epidemic is ongoing, the ‘traditional tiers of
constitutional scrutiny do not apply.’ [Citations.]”].)
16a
Appendix B
and allowing certain activities during the
pandemic. For example, courts should be
extremely deferential to the States when
considering a substantive due process claim
by a secular business that is being treated
worse than another business. Cf. Jacobson v.
Massachusetts, 197 U.S. 11, 25–28 [49 L.Ed.
643, 25 S.Ct. 358] (1905). Under the Constitution,
state and local governments, not the federal
cour ts, have the pr imar y responsibility
for addressing COVID-19 matters such as
quarantine requirements, testing plans, mask
mandates, phased reopenings, school closures,
sports rules, adjustment of voting and election
procedures, state court and correctional
institution practices, and the like.
“But COVID 19 is not a blank check for a
State to discriminate against religious people,
religious organizations and religious services.
There are certain constitutional red lines that
a State may not cross even in a crisis. Those
red lines include racial discrimination, religious
discrimination, and content-based suppression
of speech.” (Calvary Chapel Dayton Valley,
supra, 591 U.S. at p. ___ [140 S.Ct. at pp.
2614–2615] (dis. opn. of Kavanaugh, J.).)
For purposes of substantive due process claims, the
rational basis test is “the law must not be unreasonable,
arbitrary or capricious but must have a real and substantial
relation to the object sought to be obtained. [Citations.]”
17a
Appendix B
(Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21 [94 Cal.
Rptr. 904].) “[N]o valid objection to the constitutionality of
a statute under the due process clause may be interposed
‘if it is reasonably related to promoting the public health,
safety, comfort, and welfare, and if the means adopted to
accomplish that promotion are reasonably appropriate
to the purpose.’ [Citations.]” (People v. Aguiar (1968) 257
Cal.App.2d 597, 602 [65 Cal. Rptr. 171].)
Similarly, “[w]here judicial review of administrative
action by an agency acting in its legislative capacity is
sought, that review begins and ends with a determination
as to whether the agency’s action has been ‘“‘arbitrary,
capricious, or entirely lacking in evidentiary support
… .’”’ [Citations.]” (Davies v. Contractors’ State License
Bd. (1978) 79 Cal.App.3d 940, 946 [145 Cal. Rptr. 284];
see also Ursack, Inc. v. Sierra Interagency Black Bear
Group (9th Cir. 2011) 639 F.3d 949, 958 [noting “rational
basis” and “arbitrary and capricious” standards of review
are “identical”].) “A court reviewing a quasi-legislative
act cannot reweigh the evidence or substitute its own
judgment for that of the agency. [Citation.]” (Plastic Pipe
& Fittings Assn. v. California Building Standards Com.
(2004) 124 Cal.App.4th 1390, 1406 [22 Cal. Rptr. 3d 393].)
b.
Analysis
Here, the Restaurateurs contend the County exceeded
its “emergency powers” under the Health and Safety
Code5 by implementing the Order without conducting a
5. Health and Safety Code section 101040, subdivision (a)
states, in relevant part: “The local health officer may take any
18a
Appendix B
risk-benefit analysis. They also contend the Order violates
their substantive due process rights under the Fifth and
Fourteenth Amendments. Although the Restaurateurs
did not specifically label their claims as violations of
their “substantive” due process rights, the trial court so
characterized them because the claims target alleged
arbitrary government action.
As discussed above, the Restaurateurs’ excess of
power and constitutional arguments both call for the same
analysis: the core issue is whether the County’s temporary
suspension of outdoor restaurant dining is rationally
related to a legitimate state interest, i.e., limiting the
spread of COVID-19. (See Roman Catholic Diocese,
supra, 592 U.S. at p. ___ [141 S.Ct. at p. 67] [“Stemming
the spread of COVID-19 is unquestionably a compelling
interest … .”].)6
preventive measure that may be necessary to protect and preserve
the public health from any public health hazard during any …
‘state of emergency,’ or ‘local emergency,’ … within his or her
jurisdiction.” (Health & Saf. Code, § 101040, subd. (a).) Health
and Safety Code section 120175 states: “Each health officer
knowing or having reason to believe that any case of the diseases
made reportable by regulation of the department, or any other
contagious, infectious or communicable disease exists, or has
recently existed, within the territory under his or her jurisdiction,
shall take measures as may be necessary to prevent the spread of
the disease or occurrence of additional cases.”
6. The Restaurateurs also argue the Order infringes their
fundamental right to pursue a profession. But “[t]he right to pursue
one’s chosen profession is not a fundamental right for the purpose
of invoking the strict scrutiny test. [Citations.]” (Cunningham v.
Superior Court (1986) 177 Cal.App.3d 336, 348 [222 Cal. Rptr.
854].)
19a
Appendix B
In support of their requests for a preliminary
injunction, the Restaurateurs offered several expert
declarations regarding the purported lack of evidence
to support the Order and the economic harm the Order
would cause restaurant owners and employees. For
example, Jeff Barke, M.D., a primary care physician,
opined the Order does not comport with epidemiological
science and lacks a rational and legitimate medical basis.
Similarly, Hubert A. Allen Jr., a biostatistician, declared
no evidence or scientific studies support the conclusion that
operating outdoor dining in Los Angeles County poses an
unreasonable risk to public health.
The Restaurateurs also offered the declaration of
Jayanta Bhattacharya, M.D., a Professor of Medicine
and infectious disease specialist at Stanford University.
In Dr. Bhattacharya’s opinion, restaurants could safely
permit outdoor dining by following the Centers for
Disease Control and Prevention guidelines (i.e., social
distancing and mask wearing by servers and by patrons
when not eating). He explained the County provided “no
indication that it has estimated or otherwise taken into
account any of the economic, social, and public health
costs of restricting outdoor dining.” He also opined,
without reference to any supporting evidence, that “[b]
asic standards of public health policy design require a
comparison of health costs and benefits of a policy to
justify it from a scientific and ethical point of view.” He
further stated, “[a] scientifically justified policy must
explicitly account for these costs—including an explicitly
articulated economic analysis—in setting, imposing, and
removing criteria for business restrictions such as the
blanket prohibition on outdoor dining.”
20a
Appendix B
In response, the County submitted the declaration of
Muntu Davis, M.D., the County’s Health Officer and medical
expert regarding public health matters. He declared: “The
County recognizes that it has asked businesses in the
County and its more than 10 million residents to make
significant adjustments to fight this pandemic. Yet, in the
considered opinions of myself and that of DPH [the County
Department of Health] and its top communicable disease
experts, these temporary adjustments and modifications
are necessary to combat the ongoing surge in COVID-19
cases and hospitalizations, and the resulting strain on
the County’s health care system.” He further stated:
“Allowing COVID-19 to proliferate unchecked across the
County, without taking affirmative measures to reduce
transmission would be unacceptable, unethical, and bad
public policy. The societal costs of allowing large numbers
of preventable deaths in a quest for ‘herd immunity’
would far outweigh any economic or other benefits. That
is why the overwhelming majority view has rejected and
criticized Dr. Bhattacharya’s suggested approach.” Dr.
Davis concluded: “Based on the data, I determined that
the risks and harms of uncontrolled community spread,
strain on the health care system, and excess preventable
deaths outweighed the social and economic harm of a
temporary suspension on in-person restaurant dining.”
The County also offered the declaration of Jeffrey
Gunzenhauser, M.D., the County’s Chief Medical Officer
and the Director of the Disease Control Bureau. He initially
noted that “[b]ecause the virus that causes COVID-19 is
novel, much remains uncertain.” He explained, however,
there is a consensus among epidemiologists that the
most common mode of transmission of COVID-19 is from
21a
Appendix B
person-to-person respiratory droplets that are expelled
when a person coughs, sneezes, or projects his or her voice.
“There is also evidence that COVID-19 may be spread
through aerosols that are expelled when a person speaks.”
There is no scientifically agreed-upon safe distance, but
it is widely accepted that standing or sitting near an
infectious person is riskier than being farther away.
Moreover, it is “widely accepted that an infected
person is capable of transmitting COVID-19 before they
develop symptoms and if they ever develop symptoms at all.
Asymptomatic and pre-symptomatic transmission make
COVID-19 particularly difficult to contain. Individuals
without symptoms are generally unaware that they are
infected and are thus less likely to isolate or take other
steps to avoid transmitting the virus.”
Dr. Gunzenhauser further stated, “[t]he risk of
transmission further increases when individuals are in
close proximity for an extended period of time” and when
“individuals are not wearing face coverings.” “Being in
close proximity to an unmasked infected person for a
prolonged period of time presents an especially high risk
of receiving a viral dose sufficient to cause COVID-19
infection.”
Marianne Gaushe-Hill, medical director for the
County’s Department of Emergency Medical Services
Agency, detailed the recent surge in COV ID -19
hospitalizations and the then imminent overwhelming
of the County’s health care system. Specifically, the
“County’s ICU bed availability in the month of November
22a
Appendix B
… decreased to less than 5% of total capacity.” The
County notes in its Reply brief, filed January 19, 2021,
that available ICU capacity in the Southern California
region “has been down to 0% since early December 2020.”
After reviewing the evidence, the trial court found the
“County ha[d] shown that the greatly decreased capacity
of hospitals and ICUs [were] burdening the healthcare
system and action w[as] necessary.” It concluded,
however, that what it called “the County’s syllogism”—“(a)
COVID[-19] is spread by expelled droplets that transmit
the virus to others in proximity, (b) people eating outdoors
in restaurant are in proximity to others and they are
not wearing masks, (c) therefore outdoor dining has a
risk of spreading COVID[-19]—only weakly supports
closure of outdoor restaurant dining because it ignores
the outdoor nature of the activity which the CDC says
carries only a moderate risk (and less with mitigations.)”
After conceding it could not “weigh evidence in deciding
whether the restriction ha[d] a rational basis, and [that] the
Department [had] generalized evidence of a COVID[-19]
risk in outdoor dining,” the trial court nevertheless held
the County acted arbitrarily, because it failed “to perform
the required risk-benefit analysis.”
Thus, despite acknowledg ing Supreme Cour t
precedent requiring it to show great deference to the
County in these circumstances, and the “syllogism”
demonstrating a rational basis for the challenged order, the
trial court took it upon itself to adopt Dr. Bhattacharya’s
unsupported opinion and mandate a “risk-benefit analysis”
before the County could enforce its order. The trial court
23a
Appendix B
stated it could not “dictate what the [County] must do as
part of the risk-benefit analysis.”
Mandating a nebulous risk-benefit requirement
is inconsistent with the court’s appropriate role. As
discussed above, our “review begins and ends with a
determination … whether the agency’s action has been
‘“‘arbitrary, capricious, or entirely lacking in evidentiary
support … .’”’ [Citations.]” (Davies v. Contractors’ State
License Bd., supra, 79 Cal.App.3d at p. 946.) The County’s
imposition of the Order is none of those things.
Of course, more particularized studies of the spread
of COVID-19 while dining at outdoor restaurants would
be valuable. But undertaking those studies takes time
and resources that may not be available when swift
government action must be taken in response to surging
infection, hospitalization, and death rates during a once
in a century pandemic.7 As of this writing, government
sources indicate more than 500,000 Americans have died
with COVID-19. As has been widely reported, that grim
7. Information about outdoor COVID-19 transmission is not
completely absent, however. Relying on an incident in which a
27-year-old man contracted COVID-19 after having a conversation
with another individual outdoors who had recently returned from
Wuhan, Dr. Davis noted that “[w]hile the risk of transmission is
lower outdoors, it is still present.” Dr. Davis also cited a study on
the effectiveness of physical distancing in controlling the spread
of COVID-19, and stated, “outdoor, well-ventilated spaces, such as
an open patio restaurant, where unmasked persons have prolonged
contact, present a moderate risk of transmission. Being outdoors
reduces risk but does not eliminate it.”
24a
Appendix B
figure exceeds the number of U.S. soldiers killed in combat
in the Vietnam War and both World Wars combined.
Approximately 50,000 of those deaths reportedly occurred
in the State of California, with about 20,000 reported in
Los Angeles County alone. (United States COVID-19
Cases and Deaths by State (<covid.cdc.gov/covid-datatracker/#cases_totaldeaths> [as of Mar. 1, 2021]); LA
County Daily COVID-19 Data (<publichealth.lacounty.
gov/media/coronavirus/data/index.htm> [as of Mar. 1,
2021]).)8
When the Order went into effect, Los Angeles was
experiencing a surge of infections. Against this backdrop,
the County was forced to take immediate action. As
detailed in Dr. Davis’s declaration, the County recognized
the preventative measures required to slow the spread
of COVID-19, including temporarily restricting inperson dining, have an emotional and economic impact
on businesses, families, and individuals, but ultimately
determined the restriction on outdoor dining was necessary
because “dining with others creates a circumstance where
non-household members are gathering in close proximity
to each other without any COVID-19 infection control
protections and typically for more than 15 minutes.” This
scenario presents “significant risks of transmission from
persons who are asymptomatic or pre-symptomatic” and
“from a disease control standpoint” restricting in-person
dining “is necessary to mitigate the risks presented by
persons gathering together without masks.” In making
8. On our own motion, we take judicial notice of the CDC
and the County of Los Angeles Public Health websites tracking
the numbers of COVID-19 deaths. (Evid. Code, § 452, subd. (h).)
25a
Appendix B
this determination, Dr. Davis relied, in part, on “a number
of studies showing the role of masks in limiting the
spread of COVID-19, and that situations where unmasked
individuals from different households spend extended
periods of time in close proximity to one another present
a higher risk of transmission than settings where one or
more of these factors is absent.”
We decline the Restaurateurs’ invitation to secondguess public health officials’ actions in an “‘area[ ] fraught
with medical and scientific uncertainties.’” (South Bay
I, supra, 590 U.S. at p. ___ [140 S.Ct. at p. 1613] (conc.
opn. of Roberts, C. J.).) Because the Restaurateurs
failed to satisfy their burden of demonstrating the Order
is arbitrary, capricious, or without rational basis, we
conclude they cannot ultimately succeed on the merits of
their claims. Thus, they were not entitled to injunctive
relief. (Aiuto v. City & County of San Francisco, supra,
201 Cal.App.4th at p. 1361 [“A trial court may not grant
a preliminary injunction, regardless of the balance of
interim harm, unless there is some possibility that the
plaintiff will ultimately prevail on the merits of the claim.
[Citation.]”].)
D. Mark’s Freedom of Assembly Argument
Mark’s joins in the arguments of CRA, but also
separately contends the Order violates its (or its patrons’)
First Amendment right to freedom of assembly. Mark’s
seemingly forfeited this argument by failing to raise it in
the trial court. (In re Riva M. (1991) 235 Cal.App.3d 403,
411–412 [286 Cal. Rptr. 592] [“As a general rule, a party
26a
Appendix B
is precluded from urging on appeal any point not raised in
the trial court. [Citation.]”].) In its complaint, Mark’s also
failed to allege the Order violated its (or its patrons’) First
Amendment right to freedom to assembly. The closest it
came to raising the issue below is one sentence in its trial
court brief where it contends it is entitled to preliminary
injunctive relief because the Order “is irrational, arbitrary
and capricious,” and “has caused irreparable harm,
economic damages, loss of civil liberties, and massive
unemployment” and “represents a plain and palpable
invasion of clearly protected rights, i.e., Freedom of
Association, Right to Labor, Right to Equal Protection of
the Law.” But perhaps recognizing its complaint is devoid
of any First Amendment claim, Mark’s did not argue the
Order violated its First Amendment right to freedom of
assembly (i.e., a fundamental right) and therefore should
be subject to intermediate or strict scrutiny. Because
Mark’s did not raise a freedom of association claim in its
complaint, did not request leave to amend to add such
a claim, and made no reasoned argument about such a
claim, the trial court did not consider it or address it in
its 52-page decision.
In any event, we reject Mark’s argument on the
merits. Initially, we note Mark’s fails to address whether
a restaurant—as opposed to its patrons—has a right
to freedom of assembly. Even assuming, however, that
Mark’s has such a right, or has standing to bring a First
Amendment challenge on behalf of its patrons or employees,
its contention fails. The First Amendment guarantees that
“Congress shall make no law … abridging … the right
of the people to peaceably assemble.” (U.S. Const., 1st
27a
Appendix B
Amend.) Constitutional rights, however, “may at times,
under the pressure of great dangers” be restricted “as
the safety of the general public may demand.” (Jacobson,
supra, 197 U.S. at p. 29.) Specifically, states may impose
reasonable restrictions on the time, place, and manner of
protected speech and assembly provided the restrictions
“‘are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve
a significant governmental interest, and that they leave
open ample alternative channels for communication of the
information.’ [Citations.]” (Ward v. Rock Against Racism
(1989) 491 U.S. 781, 791 [105 L.Ed. 661, 109 S.Ct. 2746]
(Ward).) The Order meets this standard.
First, the Order does not regulate assembly based on
the expressive content of the assembly. Instead, it prohibits
all outdoor dining at restaurants, breweries, wineries, and
bars irrespective of the purpose of the gathering or type
of speech the patrons may wish to express.
Second, as stated above, it is undisputed limiting
the spread of COVID-19 is a legitimate and substantial
government interest. Banning outdoor dining, where
people from different households gather in close proximity
for extended periods without masks, is narrowly tailored
to limiting the spread of COVID-19. (See Ward, supra,
491 U.S. at p. 800 [“So long as the means chosen are
not substantially broader than necessary to achieve the
government’s interest … the regulation will not be invalid
simply because a court concludes that the government’s
interest could be adequately served by some less-speechrestrictive alternative.”].)
28a
Appendix B
Third, the Order leaves open alternative channels
for assembling, i.e., videoconference or in-person socially
distant gatherings with face coverings. (See, e.g., Amato
v. Elicker (D.Conn. 2020) 460 F.Supp.3d 202, 222 [“[T]he
limitation on the size of in-person social and recreational
gatherings leaves open alternative channels of expression:
… residents are free to communicate and express
themselves in any means other than a large, in-person
gathering. They may assemble in small groups and may
communicate with any number of people over the phone or
over videoconference.”].) We therefore conclude the Order
does not violate Mark’s purported First Amendment right
to freedom of assembly or that of its patrons.
DISPOSITION
Let a peremptory writ of mandate issue directing
respondent court to vacate its December 15, 2020 order
enjoining the County from enforcing its orders to the
extent they prohibit outdoor dining until after conducting
an appropriate risk-benefit analysis, and enter a new order
denying the Restaurateurs’ request for a preliminary
injunction. The County is awarded its costs in this original
proceeding.
Manella, P. J., and Willhite, J., concurred.
29a
Appendixof
C the SUPERIOR
Appendix c — opinion
COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL
DISTRICT, FILED DECEMBER 15, 2020
SUPERIOR COURT OF THE STATE OF
CALIFORNIA COUNTY OF LOS ANGELES,
CENTRAL DISTRICT
Case No. 20STCP03881
CALIFORNIA RESTAURANT ASSOCIATION, INC.,
a California Corporation,
Petitioner and Plaintiff,
vs.
COUNTY OF LOS ANGELES DEPARTMENT
OF PUBLIC HEALTH, a governmental
entity; BARBARA FERRER, in her official
capacity as Director of Public Health,
County of Los Angeles; DOES 1 through
100, inclusive,
Respondents and Defendants.
[PROPOSED] PRELIMINARY INJUNCTION
Date: December 8, 2020
Time: 1:30 p.m.
Dept.: 85
––––––––––––––––––––––––––––––
30a
Appendix C
Case No. 20STCV45134
MARK’S ENGINE CO. NO. 28, et al.,
Plaintiffs,
vs.
COUNTY OF LOS ANGELES, et al.
Defendants.
[PROPOSED] PRELIMINARY INJUNCTION
Counsel appeared in the above-captioned matter on
December 8, 2020, before Department 85, the Honorable
James C. Chalfant presiding, for a hearing on this Court’s
Order to Show Cause (the “Order to Show Cause”) in the
above-captioned matter.
As detailed in this Court’s December 8, 2020 ruling
(a copy of which is attached hereto as Exhibit A), IT IS
HEREBY ORDERED THAT Respondents-Defendants
(“Respondents”) the Los Angeles County Department of
Public Health and Barbara Ferrer, directly or indirectly,
and whether alone or in concert with others, including
any officer, agent, employee, and/or representative of
Los Angeles County, are hereby enjoined from enforcing
the November 25, 2020 Reopening Safer at Work and in
the Community for Control of COVID-19, Blueprint for a
Safer Economy – Tier 1 Surge Response, or the December
6, 2020 Revised Temporary Targeted Safer at Home
31a
Appendix C
Health Officer Order for Control of COVID-19; Tier 1
Substantial Surge Updated Response to the extent either
order seeks to prohibit outdoor dining, and/or any other
order prohibiting outdoor dining beyond the period which
ends on December 16, 2020, and Respondents are further
enjoined from promulgating any further order to prohibit
outdoor dining at restaurants and other food facilities
that prepare and serve food until after conducting an
appropriate risk-benefit analysis and articulating it for
the public to see. Nothing herein enjoins Respondents
from enforcing the State of California’s December 3,
2020 Regional Stay At Home Order, as supplemented
on December 6, 2020, which took effect in Los Angeles
County on December 6, 2020, at 11:59 p.m., including,
but not limited to, the prohibition of outdoor dining at
restaurants and other food facilities that prepare and
serve food, to the extent that order remains in effect.
IT IS FURTHER ORDERED THAT PlaintiffPetitioner California Restaurant Association, Inc. and
Plaintiff Mark’s Engine Co. No. 28, Inc. shall, jointly and
severally, deposit a bond with the Court in the amount of
$10,000 within five court days of this order.
The Court reserves jurisdiction to modify this
injunction as the ends of justice may require.
IT IS SO ORDERED.
DATED: 12/15/2020
/s/
Hon. James C. Chalfant
JUDGE OF THE SUPERIOR COURT
32a
Appendix C
APPROVED AS TO FORM:
DATED: December 10, 2020
MILLER BARONDESS, LLP
/s/
AMNON Z. SIEGEL
Attorneys for Respondents
33a
Appendix C
EXHIBIT A
34a
Appendix C
California Restaurant Association, Inc. v. County
of Los Angeles Department of Public Health, et al.,
20STCP03881
Mark’s Engine Company No. 28 Restaurant LLC, vs
County of Los Angeles-Department of Public Health, et
al., 20STCV45134
Tentative decision on application for preliminary
injunction: granted in part
Petitioners California Restaurant Association, Inc.
(“CRA”) and Mark’s Engine Company No. 28 Restaurant,
LLC (“MEC”), each apply in a consolidated hearing (with
Case No. 20STCP03881 as the lead case) for a preliminary
injunction enjoining Respondents/Defendants County
of Los Angeles Department of Public Health and Dr.
Barbara Ferrer (“Ferrer”), in her official capacity as
Director of Public Health, and Muntu Davis, M.D., M.P.H,
(“Davis”) in his official capacity as Health Officer for
County (collectively, “Department”), from enforcing the
November 25, 2020 Order of the Health Officer entitled
“Reopening Safer at Work and in the Community for
Control of COVID 19, Blueprint for a Safer Economy–Tier
1 Surge Response” (“Restaurant Closure Order”).
The court has read and considered the moving papers,
the County’s oppositions to the ex parte applications
and consolidated opposition to the order to show cause
(“OSC”), and the replies, and renders the following
tentative decision.
35a
Appendix C
A. Statement of the Case
1.
20STCP03881
Petitioner CRA commenced this action on November
24, 2020, alleging causes of action for administrative and
traditional mandamus and declaratory relief. The Petition
alleges in pertinent part as follows.
The Department has issued a series of health orders in
an effort to halt the spread of COVID.1 The Department’s
Health Order dated November 19, 2020 (“November 19
Order”) issued restrictions that outdoor dining and wine
service seating must be reduced by 50%, or tables must
be repositioned so that they are at least eight feet apart.
On November 22, 2020, the Department announced
that it was modifying the November 19 Order to eliminate
outdoor dining and drinking entirely at restaurants,
bars, breweries, and wineries by issuing the Restaurant
Closure Order. The Restaurant Closure Order took effect
on November 25, 2020.
The Department’s own data provide no support for
the planned shutdown of outdoor restaurant operations.
The data tracks all non-residential settings at which three
or more laboratory confirmed COVID cases have been
identified. Of the 204 locations on the list, fewer than 10%
are restaurants. Of the 2,257 cases identified on the list,
fewer than 5% originate from restaurants.
1. For convenience, the court will refer to COVID-19 and
SARS-CoV-2 as “COVID”.
36a
Appendix C
On November 17, 2020, the Department held a hearing
at which COVID and restaurant closures were discussed.
The Department scheduled another hearing for November
24, 2020. On November 23, 2020, CRA sent a notice and
objection letter to the Department asking it to cancel the
proposed modification to the November 19 Order on the
grounds that the spread of COVID is due primarily to
people in close proximity at private gatherings and other
sources, not from restaurants.
CRA contends that the Department prejudicially
abused its discretion by having hearings at which it failed to
take and consider relevant advice. The Department made a
decision to close restaurant dining that is not realistically
designed to halt the spread of COVID. The Department
proceeded without, and in excess of, its discretion, failed
to give CRA a fair hearing, and prejudicially abused its
discretion. The Restaurant Closure Order is not supported
by any findings or the evidence.
2.
20STCV45134
Plaintiff MEC commenced this action on November
24, 2020 against the Department and Davis, in his official
capacity as Health Officer for County, alleging causes of
action for declaratory relief and violations of the California
Constitution and seeking the remedy of injunctive relief.
The Complaint alleges in pertinent part as follows.
The Department’s initial June 2020 Health Order
(“June Order”) allowed many businesses, including MEC,
to operate so long as they followed guidelines established
37a
Appendix C
by the state and County to help curb the spread of COVID.
As of June 1, 2020, restaurants in the County such as MEC
were not permitted to provide dine-in service indoors.
They were able to provide outdoor dining and take-out
dining upon implementing County safety protocols as set
forth in the June 2020 Order.
Since the promulgation of the June Order, MEC has
complied with all local and statewide protocols relating
to the safe operation of its restaurant, including a large
investment of time and resources, to pivot from its
previous indoor-dining concept to a takeout and outdoordining model.
On November 20, 2020, the Department announced
that its June Order, as it relates to the operation of
restaurants across the County, was being revised by the
November 19 Order to limit the number of customers at
outdoor restaurants to 50% of the outdoor establishment’s
outdoor capacity (which is already limited by virtue of
compliance with the June 2020 Order, which requires
physically distanced tables). In addition, the November
19 Order curtailed the hours of operation for restaurants
by banning operations between 10:00 p.m. and 6:00 a.m.
On November 22, 2020, without any evidence to
support it, the Department further modified the November
19 Order by issuing the Restaurant Closure Order, which
prohibits any outdoor dining irrespective of capacity or
curfew. The Restaurant Closure Order took effect on
November 25, 2020 at 10 p.m. and will last for a minimum
of three weeks. Take-out, delivery, and drive-thru services
remain unaffected.
38a
Appendix C
In attempting to justify the Restaurant Closure
Order, Respondent Ferrer said at a November 22, 2020
press conference that there had been a 61% increase in
hospitalization cases involving COVID in the County
between November 7 and 20, 2020, which could potentially
lead to overwhelming the healthcare system. Further,
Ferrer pointed out that while most restaurants have
complied with safety mandates, almost 20% of restaurants
have had issues, mainly regarding social distancing.
Ferrer conceded that she did not have concrete data
on how many people had been infected by outside dining
at a restaurant. In actuality, the Department’s data
indicates that COVID cases traced back to the County’s
restaurants and bars accounted for a mere 3.1 % (70 of
the total 2,257) confirmed cases countywide from over
204 outbreak locations -- the vast majority of which were
chain/fast-food type restaurants and not MEC’s model.
Of those 2,257 confirmed cases, 2,249 of were traced to
staff members at workplaces and just eight cases came
from non-staff members.
The Restaurant Closure Order is an abuse of the
Department’s emergency powers, is not grounded in
science, evidence, or logic, and should be adjudicated to
be unenforceable as a matter of law.
3. Course of Proceedings
On November 24, 2020, the court denied CRA’s ex
parte application to stay the Restaurant Closure Order for
failure to present sufficient evidence to make a prima facie
39a
Appendix C
case. The court permitted CRA to renew its application
as one for a temporary restraining order (“TRO”) and
OSC re: preliminary injunction (“OSC”) if it presented
evidence that the restrictions are unsupported and of
irreparable harm.
On December 1, 2020, the court denied MEC’s ex
parte application for declaratory and injunctive relief and
informed the parties that declaratory relief cannot be
granted on an ex parte basis. The court permitted MEC to
file and serve new ex parte application for a TRO and OSC.
On December 2, 2020, the court denied CRA’s and
MEC’s ex parte applications for a TRO, but it set an OSC
for the instant date.
The independent calendar court assigned to Case No.
20STCV45134 found that it and Case No. 20STCP03881
are not related under CRC 3.300(a) and declined to relate
them. This court consolidated both cases only for hearing
on the OSCs and designated 20STCP03881 as the lead
case for the hearing.
B. Governing Law
1. Emergency Services Act
The Emergency Services Act (“ESA”) empowers
state and local governments to declare emergencies and
coordinate efforts to provide services. Govt. Code §§ 8550668. The purpose of the ESA and the policy of the state is
that all emergency services functions shall be coordinated
40a
Appendix C
as far as possible with the comparable functions of its
political subdivisions, the federal government, and private
agencies, to the end that the most effective use may be
made of all resources for dealing with an emergency. Govt.
Code §8550.
A “state of emergency” means the existence of
conditions of disaster or of extreme peril to the safety
of persons and property within the state caused by
conditions including an epidemic and which by reason of
their magnitude, are or likely to be beyond the control of
any single county or city and require the combined forces
of a mutual aid region or regions. Govt. Code §8558.
During a state of emergency, the Governor shall, to
the extent he deems necessary, have complete authority
over all agencies of the state government and the right to
exercise within the area designated all police power vested
in the state by the California Constitution and laws of the
State of California in order to effectuate the purposes of
this chapter. Govt. Code §8627.
The Governor may make, amend, and rescind orders
and regulations necessary to carry out the provisions of
this chapter. The orders and regulations shall have the
force and effect of law. Due consideration shall be given
to the plans of the federal government in preparing
the orders and regulations. The Governor shall cause
widespread publicity and notice to be given to all such
orders and regulations, or amendments or rescissions
thereof. Govt. Code §8567(a).
41a
Appendix C
“State Emergency Plan” means the State of California
Emergency Plan approved by the Governor. Govt. Code
§8560. The Office of Emergency Services shall update the
State Emergency Plan on or before January 1, 2019 and
every five years thereafter. Govt. Code §8570.4.
“The Governor may, in accordance with the State
Emergency Plan and programs for the mitigation of the
effects of an emergency in this state: ...(c) Use and employ
any of the property, services, and resources of the state
as necessary to carry out the purposes of this chapter;...
(i) Plan for the use of any private facilities, services, and
property and, when necessary, and when in fact used,
provide for payment for that use under the terms and
conditions as may be agreed upon. Govt. Code §8570.
In the exercise of the emergency powers vested
in him during a state of emergency, the Governor is
authorized to commandeer or utilize any private property
or personnel deemed by him necessary in carrying out the
responsibilities hereby vested in him as Chief Executive
of the state and the state shall pay the reasonable value
thereof. Govt. Code §8572.
A political subdivision of the state is obligated to take
all actions necessary to carry out a State Emergency
Plan once the Governor has declared an emergency. Govt.
Code §8568. A political subdivision includes any city, city
and county, county, district, or other local governmental
agency or public agency authorized by law. Govt. Code
§8557(b).
42a
Appendix C
The governing body of a county or city may proclaim
a local emergency. Govt. Code §8630. A local emergency
must be reviewed by the governing body every 30 days
and it shall be terminated at the earliest possible date that
conditions warrant. Govt. Code §8630(c), (d). During a local
emergency, the governing body of a county or city may
promulgate orders and regulations necessary to protect
life and property. Govt. Code §8634.
2. Health and Safety Code
The Restaurant Closure Order specifies the authority
upon which it is based—Health and Safety Code (“H&S
Code”) sections 101040, 101085 and 120175. H&S Code
section 101040 permits a local health officer to take
preventative measures that may be necessary to protect
and preserve the public health during an “state of
emergency” or “local emergency” under the ESA. 2
H&S Code section 120175 provides:
“Each health officer knowing or having reason
to believe that any case of the diseases made
reportable by regulation of the department, or
any other contagious, infectious or communicable
disease exists, or has recently existed, within
2. H&S Code section 101085 confers powers on a local health
officer to take action after a declaration of a health emergency or
local health emergency under H&S Code section 101080. In turn,
H&S Code section 101080 concerns hazardous waste spills and
releases. As such, H&S Code section 101085 has no application
in this case.
43a
Appendix C
the territory under his or her jurisdiction, shall
take measures as may be necessary to prevent
the spread of the disease or occurrence of
additional cases.” H&S Code §120175 (emphasis
added).
While H&S Code section 101040 is dependent on the
ESA, H&S Code section 120175 is not. The statute imposes
a mandatory duty on a health officer to take measures
to prevent the spread of contagious and communicable
diseases. AIDS Healthcare Foundation v. Los Angeles
County Dept. of Public Health, (2011) 197 Cal.App.4th
693, 701. The health officer must take “measures as may
be necessary,” or “reasonably necessary,” to achieve the
Department’s goals and policies, leaving the course of
action to the health officer’s discretion. Ibid. The health
officer is vested with discretion to act in a particular
manner depending upon the circumstances. Ibid.
The notion that a municipality’s health officer has broad
authority is well-established and long-standing. Jacobson
v. Commonwealth of Massachusetts, (“Jacobson”) (1905)
197 U.S. 11, 25. “[A] community has a right to protect itself
against an epidemic of disease which threatens the safety
of its members.” Id. at 27. According to settled principles,
the police power of a state must be held to embrace, at
least, such reasonable regulations established directly by
legislative enactment as will protect the public health and
public safety. Ibid.
The health officer’s authority is not unbridled. Courts
have the duty to evaluate an exercise of that authority
44a
Appendix C
to ensure actions taken have a “real and substantial
relationship” to public health and safety. Id. at 31. The
health officer cannot act arbitrarily or oppress. Id. at 38.
In addition, the health officer cannot engage in a “plain,
palpable invasion of rights” secured by the Constitution.
Id. at 31. See also Jew Ho v. Williamson, (C.D. Cal.
1900) 103 F. 10. (Whether the regulation in question is a
reasonable one, directed to accomplish the purpose that
appears to have been in view, is a question for the court
to determine).
3. Injunctive Relief
An injunction is a writ or order requiring a person
to refrain from a particular act; it may be granted by
the court in which the action is brought, or by a judge
thereof; and when granted by a judge, it may be enforced
as an order of the court. CCP §525. An injunction may be
more completely defined as a writ or order commanding
a person either to perform or to refrain from performing
a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d
736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155,
1160. 3 It is an equitable remedy available generally in
the protection or to prevent the invasion of a legal right.
3. The courts look to the substance of an injunction to
determine whether it is prohibitory or mandatory. Agricultural
Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d
709, 713. A mandatory injunction — one that mandates a party
to affirmatively act, carries a heavy burden: “[t]he granting of
a mandatory injunction pending trial is not permitted except in
extreme cases where the right thereto is clearly established.”
Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th
187, 1493.
45a
Appendix C
Meridian, Ltd. v. City and County of San Francisco, et
al., (1939) 13 Cal.2d 424.
The purpose of a preliminary injunction is to preserve
the status quo pending final resolution upon a trial. See
Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d
1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th
1313, 1316; Major v. Miraverde Homeowners Assn., (1992)
7 Cal.App.4th 618, 623. The status quo has been defined to
mean the last actual peaceable, uncontested status which
preceded the pending controversy. Voorhies v. Greene
(1983) 139 Cal.App.3d 989, 995, quoting United Railroads
v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark
Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th
1396. 1402.
A preliminary injunction is issued after hearing on
a noticed motion. The complaint normally must plead
injunctive relief. CCP §526(a)(1)-(2). 4 Preliminary
injunctive relief requires the use of competent evidence
to create a sufficient factual showing on the grounds for
relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974)
41 Cal.App.3d 146, 150. Injunctive relief may be granted
based on a verified complaint only if it contains sufficient
evidentiary, not ultimate, facts. See CCP §527(a). For this
reason, a pleading alone rarely suffices. Weil & Brown,
California Procedure Before Trial, 9:579, 9(ll)-21 (The
Rutter Group 2007). The burden of proof is on the plaintiff
as moving party. O’Connell v. Superior Court, (2006) 141
Cal.App.4th 1452, 1481.
4. However, a court may issue an injunction to maintain
the status quo without a cause of action in the complaint. CCP
§526(a)(3).
46a
Appendix C
A plaintiff seeking injunctive relief must show the
absence of an adequate damages remedy at law. CCP
§526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors,
(1967) 255 Cal.App.2d 300, 307; Department of Fish &
Game v. Anderson-Cottonwood Irrigation Dist., (1992)
8 Cal.App.4th 1554, 1565. The concept of “inadequacy
of the legal remedy” or “inadequacy of damages” dates
from the time of the early courts of chancery, the idea
being that an injunction is an unusual or extraordinary
equitable remedy which will not be granted if the remedy
at law (usually damages) will adequately compensate
the injured plaintiff. Department of Fish & Game v.
Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.
App.4th 1554, 1565.
In determining whether to issue a preliminary
injunction, the trial court considers two factors: (1) the
reasonable probability that the plaintiff will prevail on
the merits at trial (CCP §526(a)(1)), and (2) a balancing
of the “irreparable harm” that the plaintiff is likely to
sustain if the injunction is denied as compared to the
harm that the defendant is likely to suffer if the court
grants a preliminary injunction. CCP §526(a)(2); 14859
Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63
Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v.
Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport
v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446;
Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628,
636. Thus, a preliminary injunction may not issue without
some showing of potential entitlement to such relief. Doe
v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to
grant a preliminary injunction generally lies within the
47a
Appendix C
sound discretion of the trial court and will not be disturbed
on appeal absent an abuse of discretion. Thornton v.
Carlson, (1992) 4 Cal.App.4th 1249, 1255.
A preliminary injunction ordinarily cannot take effect
unless and until the plaintiff provides an undertaking for
damages which the enjoined defendant may sustain by
reason of the injunction if the court finally decides that
the plaintiff was not entitled to the injunction. See CCP
§529(a); City of South San Francisco v. Cypress Lawn
Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.
D. Statement of Facts
1. CRA and MEC’s Evidence5
a. Background
On March 4, 2020, Governor Newsom declared a
“State of Emergency” 5followed by a March 19, 2020 Stay5. CRA requests judicial notice of the following exhibits
attached to the Ellis declaration: (1) a November 22, 2020
Department press release entitled “Public Health to Modify
Health Officer Order to Restrict Dining at Restaurants,
Breweries, Wineries and Bars Amid Surge in Cases - 5-Day
Average of New Cases is 4,097” (Ex. 1); (2) a transcript of a
November 24, 2020 County Board of Supervisors (sometimes
“Board”) meeting (Ex. 11); (3) the Restaurant Closure Order, a
November 25, 2020 Order of the Health Officer for Los Angeles
County entitled “Reopening Safer at Work and in the Community
for Control of COVID-19, Blueprint for a Safer Economy – Tier
1 Surge Response” (Ex. 17); (4) a September 2020 California
Department of Public Health chart entitled “Blueprint for a Safer
48a
Appendix C
at-Home Order which included an indefinite prohibition
on operating “nonessential businesses,” including
restaurants. Ellis Decl., Ex. 18. Governor Newsom
specified that California’s response to the coronavirus
pandemic “must be done using a gradual, science-based
and data-driven framework.” Id. (emphasis added). He
also stated that the state’s actions should be aligned to
achieve the objectives of (1) ensuring the ability to care
for the sick within the state’s hospitals, (2) preventing
infection in people who are at high risk for severe disease,
(3) building the capacity to protect the health and wellbeing of the public, and (4) reducing social, emotional,
and economic disruptions. Id.
Economy” (“Blueprint”) (Ex. 7); (5) a press release issued by
the Governor entitled “Governor Newsom Outlines Six Critical
Indicators the State will Consider Before Modifying the Stay-atHome Order and Other COVID-19 Interventions” (Ex. 18); (6) the
United States Supreme Court’s opinion in Roman Catholic Diocese
of Brooklyn, New York v. Cuomo, (“Roman Catholic Diocese”)
(Nov. 25, 2020) 2020 WL 6948354, 592 U.S. ___ (Ex. 21); and (7)
the TRO/OSC and accompanying minute order dated November
6, 2020 in Midway Ventures, LLC v. County of San Diego, et al.,
Case No. 37-2020-00038194-CU-CR-CTL (San Diego County
Superior Court) (Ex. 22).
The existence of the Exhibits 21 and 22, but not the truth of
their contents, is judicially noticed. Evid. Code §452(d); Sosinsky v.
Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings
in court documents may not be judicially noticed). The existence of
the press release (Ex. 1), the Restaurant Closure Order (Ex. 17),
the Blueprint (Ex. 7), and the Governor’s press release (Ex. 18) are
judicially noticed. Evid. Code §452(c). The court cannot judicially
notice a reporter’s transcript (Ex. 11), and the request is denied.
49a
Appendix C
On August 28, 2020, Governor Newsom and the
California Department of Public Health announced a
revised regulatory regime entitled the “Blueprint for a
Safer Economy” (the Blueprint), outlining a four-tiered
system of community disease transmission risk with
activity and business tiers for each risk level. Ellis Decl.
Ex. 7. Restaurants are listed as a separate sector in the
Blueprint. Id. A county in Tier 2 may allow indoor dining
at a maximum capacity of 25% or 100 people, whichever
is less, while a county in Tier 1 may permit only outdoor
dining. Id. Even in the most restrictive tier, outdoor dining
is expressly permitted. Id.
b. The Restaurant Closure Order
On November 22, 2020, the Department issued a press
release announcing the issuance of the Restaurant Closure
Order, effective November 25, 2020, which would ban
outdoor dining for at least three weeks. Ellis Decl., Ex. 1.
On November 23, 2020, CRA sent an objection letter
to the Department, asking it to cancel the proposed
Restaurant Closure Order on grounds that the spread
of COVID is due primarily to persons in close proximity
at private gatherings and other sources, and not from
restaurants. Ellis Decl. ¶9, Ex. 8. The letter contended
that the County had no study that would support the
Restaurant Closure Order, it was not supported by the
existing scientific evidence, and it would cause significant
harm to restaurants, their employees, and customers. Ex.
8, p. 1-2.
50a
Appendix C
On November 24, 2020, the Board of Supervisors held
a public meeting at which the potential Restaurant Closure
Order was discussed, and the Department was questioned
about the basis for its contemplated action. Ellis Decl.,
¶13, Ex. 11. At this meeting, the Department admitted
that it has not been tracking COVID transmission at
County restaurants and did not have state or County data
to support the Restaurant Closure Order. Id. Instead,
County Health Officer Davis referred to a study by the
Centers for Disease Control (“CDC”), calling it “the best
information that we have” to support the Restaurant
Closure Order. Id.
Department public health officials Davis, Health
Officer, Ferrer, Director of the Department of Public
Health, and Dr. Christina Ghaly (“Ghaly”), Director of
the Department of Health Services, explained the reasons
for the Restaurant Closure Order during the November
24 Board meeting:
Ghaly: “[H]ospital capacity is available right
now, but we do risk using it up if the case
counts continue to rise at the level they have
to date.” Siegel Decl. Ex. B, p. 131 (emphasis
added).
Davis: “We are solving the problem of people
mixing together, often times from different
households, being in close contact with a face
covering while they are eating and drinking.”
Id., p. 136.
51a
Appendix C
Ferrer: “[B]ecause all of the people and
customers are not wearing their face coverings
while eating drinking, there’s lot of increased
risk in those settings. A s you know, we
have seen picture after picture of activity
at restaurants, people close together and
intermingling and many people going to . . .
restaurants are not with members . . . of their
household, when we proposed in the beginning
of reopening restaurants, we said perhaps
it makes sense to limit people coming into
restaurants and sitting together in households,
and the restaurants notified us that would
be impossible to enforce. They have no way
of knowing whether people are from one
household. We are looking at increased risk,
and a significant increase in increased risk
because people are not wearing their face
covering.” Id, pp. 137-38 (emphasis added).
Ferrer: “[I] agree that it seems a little bit
counterintuitive to talk about cases when really
all we are worried about is overwhelming the
healthcare system. The issue is that cases are
the earlier predictor of what is going to happen
in our hospital care system. And I think Dr.
Ghaly spoke to this as well, you don’t want to
wait until the case numbers in the hospitals
are really high, because those numbers that
you are seeing in the hospital reflect people who
are infected a couple of weeks earlier. As I said,
we have seen this rapid acceleration this past
52a
Appendix C
week and a half with hospitals and the number
of patients that are there with COVID-19 and
it is not attributed to the 4,500 cases we are
seeking today, it is attributed to the 2,300
cases we saw two weeks ago.” Id., pp. 139-40
(emphasis added).
Ferrer: “We are, in fact, trying to make sure
that whenever you’re out and you’re not with
people in your household, you’re always at an
activity where you can wear your face covering
and keep it on the entire time. And then we’re
also trying to reduce crowded situations and
having people not—and having people stay with
just people from their household.” Id., p. 149.
Ghaly: “And now about this most recent surge,
we’ve seen that test positivity rate creep
up again at 6, 7 percent. And that’s what’s
concerning. And that’s one of the things that
may lead in the future to more hospitalization
over the next week or two.” Id., pp. 161-62. Opp.
to CRA Ex Parte at 14-15.
Two Board supervisors expressed their opinion at the
November 24 meeting that scientific evidence was lacking
to support the Restaurant Closure Order. Supervisor
Barger stated: “There is no data to support closing
restaurants. This action was arbitrary and only further
encourages private gatherings, which is where the virus is
actually spreading.” Ellis Decl. Ex. 14. Supervisor Janice
Hahn stated: “I don’t think we have the data to prove that
53a
Appendix C
outdoor dining is driving the recent surge in cases, nor do
we have the data to assure us that this action will turn our
case numbers around. I am also very worried that it will
drive more people to indoor gathering.” Ellis Decl. Ex. 13.
On November 25, 2020, the Department issued the
Restaurant Closure Order, shutting down all outdoor
dining by 10:00 p.m. that night. Ellis Decl., Ex. 17. The
Restaurant Closure Order states that restaurants,
breweries, and wineries can only offer food and beverage
via takeout, drive-thru, or delivery -- i.e., no indoor
or outdoor dining at restaurants. Id. Pursuant to the
Restaurant Closure Order, County restaurants are
prohibited from offering outdoor dining of any kind,
regardless of the safety protocols in place. Id. The
Department ordered the closure of all restaurants for
in-person onsite dining for an indefinite period. Id.
CRA presents evidence that the Restaurant Closure
Order imposes great financial hardship on the restaurant
industry. Many restaurants previously had implemented
safety measures to comply with the previous Health
Order at significant financial cost. See Leon, Rosenthal,
Terzian, Shams, Gay, and Thornberg declarations. CRA’s
declarations refer to the abrupt nature of the County’s
Restaurant Closure Order, the harm that restaurant
outdoor dining closure will cause, and the risk of layoffs
and permanent restaurant closure from an outdoor
dining ban. See Shams Decl., ¶¶ 9, 11. Many restaurant
owners feel the Restaurant Closure Order is unreasonable
because the risk of COVID transmission from outdoor
dining is greatly outweighed by the devastating economic
consequences. Id.
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Appendix C
c. Expert Declarations6
(i) Barke
Jeff Barke, M.D. (“Barke”), is a primary care
physician based in Orange County, California who has
treated numerous COVID patients on a near-daily basis
since the start of the outbreak. Barke Decl., ¶4.
Barke opines that there is no rational and legitimate
basis to support the breadth and scope of the Department’s
shutdown of outdoor dining. Barke Decl., ¶7. Since the
beginning of the pandemic, one of the consistent findings
of studies of COVID transmission has been that the
risk of transmission in outdoor settings is low, and the
risk becomes negligible when combined with the use of
commonly-accepted COVID precautionary measures such
as symptom checks, spacing, and the appropriate use of
personal protective equipment by servers according to
CDC guidelines. Barke Decl., ¶7.
An academic study published on April 7, 2020 by
professors and scientists from Southeast University,
the University of Hong Kong, and Tsinghua University
(“China Study”) extracted case reports from the local
municipal health commissions of 320 prefectural (a district
governed by a prefect) cities in China, identified all
outbreaks of COVID (defined as three or more individual
6. CRA and MEC filed similar declarations from two experts,
Jayanta Bhattachara and Sean Kaufman. The court’s citations are
to CRA’s declarations.
55a
Appendix C
cases), reviewed the major characteristics of the enclosed
spaces in which the outbreaks were reported and their
associated indoor environmental issues, and found that
only one of the 318 identified outbreaks – amounting
to only two infected persons – implicated an outdoor
environment. Barke Decl., ¶8, Ex. A.
Another academic study published on April 16, 2020
by professors and scientists from the Japanese Ministry
of Health, Labour and Welfare, Hokkaido University,
the Tohoku University Graduate School of Medicine,
and the Japanese National Institute of Public Health
and National Institute of Infectious Diseases (“Japan
Study”), examined clusters of COVID in Tokyo, Aichi,
Fukuoka, Hokkaido, Shiakawa, Kanagawa and Wakayama
prefectures in Japan, finding that closed – not open –
environments contribute to the secondary transmission
of COVID. Barke Decl., ¶9, Ex. B. The Japan Study also
found that an infected person transmitted COVID in a
closed environment at a rate 18.7 times greater than an
open-air environment. Id. On the basis of these findings,
the Japan Study concluded that a reduction of unnecessary
close contact in closed environments may help prevent
large case clusters and so-called “superspreading” events
relating to COVID. Barke Decl., ¶9, Ex. B.
An article from the Mayo Clinic describes a general
medical consensus regarding safe outdoor activities
during the COVID pandemic. Barke Decl., ¶10, Ex. C.
According to the Mayo Clinic article, COVID is primarily
spread from person-to-person by those within six feet
of each other. Ex. C. In some situations, especially in
56a
Appendix C
enclosed spaces with poor ventilation, COVID can spread
when a person is exposed to small droplets or aerosols that
stay in the air for minutes to hours. Id. When the weather
is appropriate, outside patio dining can be a good outdoor
option. Id. Outdoor patio dining at uncrowded restaurants
where patio tables are spaced appropriately is safer than
indoor dining. Id. The article advises persons to wear a
mask when not eating or drinking, in other areas of the
restaurant, keep a distance of at least six feet (two meters),
avoid self-service food and drink options, and remember
to wash their hands when they enter and leave. Id.
These studies comport with Barke’s observations
in practice. Barke has not treated a single COVID who
contracted it in an outdoor dining setting. Barke Decl.,
¶11. The risk of COVID infection and transmission is much
lower when eating in an outdoor setting, just as it is safe
and permitted to travel for hours across the country in a
crowded and enclosed aircraft. Id.
(ii) Bhattacharya
Jayanta Bhattacharya, M.D. (“Bhattacharya”) is a
Professor of Medicine and infectious disease specialist
at Stanford University with a primary research area in
health economics, including a focus on epidemiology and
infectious disease epidemiology. Bhattacharya Decl., ¶¶
2, 4. Bhattacharya opines that the blanket countywide
prohibition on outdoor dining in the County does not
comport with, and is inconsistent with, good public health
practice applicable to COVID. Bhattacharya Decl., ¶2.
57a
Appendix C
Bhattacharya conducted a study that found that 4.3%
of County adults showed specific antibody evidence of
prior or current COVID infection by April 10-11, 2020.
Bhattacharya Decl., ¶6. This prevalence rate represents
a multiple 43.5 times the number of cases confirmed by
the County’s public health authority by that same date.
Bhattacharya Decl., ¶6. One important implication of
this paper is that, on the date of the survey, the COVID
infection fatality rate (the probability of dying from a
COVID infection) in the County was at least an order
of magnitude lower than the “case fatality rate”, which
consists only of patients who have been infected with
COVID and identified as a “case”. Id. A case most typically
is a patient with severe symptoms who has come to the
attention of medical authorities. Id.
In May 2020, Bhattacharya testified at a virtual
roundtable organized by United States Senator Pat
Toomey on the subject of the potential reopening of
youth baseball leagues while protecting the safety of
participants. Bhattacharya Decl., ¶12. At this roundtable,
he reviewed the evidence regarding the relatively low
mortality and morbidity risk that COVID infection
poses to children and adolescents and discussed social
distancing and other protocols to make youth baseball
safer for coaches, umpires, and other adult participants.
Id.
In October 2020, Bhattacharya, Harvard Professor
Dr. Martin Kulldorff, and Oxford Professor Dr. Sunetra
Gupta, wrote a declaration (the “Great Barrington
Declaration”) which discussed an alternative to the
58a
Appendix C
current COVID strategies in jurisdictions across the
United States. Bhattacharya Decl., ¶15. The Great
Barrington Declaration offers an alternative approach
called focused protection. Bhattacharya Decl., ¶16.
According to focused protection, the most compassionate
approach to the COVID pandemic balances the risks and
benefits of reaching herd immunity by allowing those who
are at minimal risk of death to live their lives normally to
build up immunity to the virus through natural infection,
while better protecting those who are at highest risk.
Id. The Great Barrinton Declaration was published
with approximately 30 co-signers in early October 2020.
Bhattacharya Decl., ¶17. Since then, it has been co-signed
by more than 10,000 medical and public health scientists
and 30,000 medical practitioners. Id.
Pursuant to the CDC’s “Considerations for Restaurant
and Bar Operators,” updated November 18th, 2020, outdoor
dining may occur with relative safety at restaurants if
precautionary measures are observed, including but not
limited to, social distancing and mask wearing by servers
and by patrons (when not eating). Bhattacharya Decl., ¶20.
The CDC includes outdoor dining in the second lowest
tier of risk, and notes that even this risk can be mitigated
by reasonable accommodations such as spacing tables
appropriately, encouraging mask wearing by servers,
frequent sanitizing of surfaces, and other actions that
are well within the capability of County restaurants. Id.
The Restaurant Closure Order is inconsistent with this
guidance. Id.
59a
Appendix C
Bhattacharya’s medical opinion is that restaurants
in the County can safely permit outdoor dining by
following the CDC guidelines. Bhattacharya Decl., ¶20.
Bhattacharya has read many of the contact tracing studies
in the scientific literature that document the most common
sources of spread of COVID infection and he is aware
of no evidence suggesting that outdoor dining is more
likely to spread the COVID virus than the activities –
including private gatherings – that remain permissible.
In fact, spread through permitted activities will be more
likely if the Restaurant Closure Order remains in effect.
Bhattacharya Decl., ¶22.
The County guidelines prohibiting outdoor dining
are substantively stricter than is required by the
state. Bhattacharya Decl., ¶23. The state’s Blueprint
builds considerable lags into the measurement of the
epidemiological metrics (a seven-day lag and a sevenday smoothing requirement) and requires that a county
must stay in the same tier for at least 21 days before it is
permitted to move to a less restrictive tier even if it meets
the criteria of the less restrictive tier. Bhattacharya Decl.,
¶26. By prohibiting outdoor on-premises dining and doing
so throughout the county, the Department is imposing
stricter requirements than those required by the state.
Bhattacharya Decl., ¶28.
The County has done so without a scientific justification
for imposing such stricter requirements on these
activities. Id. The Department’s available data does not
contain any epidemiological or other model that shows
prohibiting outdoor dining on a countywide basis in a
60a
Appendix C
county the size of the County has any relationship to
avoiding circumstances that challenge the healthcare
delivery system’s ability to deal with a surge with space,
supplies, and staff as required by the Blueprint, does
not compare hospitalization forecasts against hospital
capacity in light of prohibitions on outdoor dining, does
not account for the possibility of transfers of patients
across counties, and does not account for the possibility
of building and staffing field hospitals in overstretched
areas. Bhattacharya Decl., ¶28.
The Department also has provided no indication that
it has estimated or otherwise taken into account any of
the economic, social, and public health costs of restricting
outdoor dining. Bhattacharya Decl., ¶29. Basic standards
of public health policy design require a comparison of both
costs and benefits of a policy to justify it from a scientific
and ethical point of view. Id. A scientifically justified
policy must explicitly account for these costs – including
an explicitly articulated economic analysis – in setting,
imposing, and removing criteria for business restrictions
such as the blanket prohibition on outdoor dining. Id.
The County’s positivity rate data is scientifically
unjustified. Bhattacharya Decl., ¶30. Both the number
of new daily cases and the percent positivity criteria
require analysis of results from the reverse transcriptase polymerase chain reaction (“RT-PCR”) test for the COVID
virus utilized by the County. Id. The available scientific
information regarding the accuracy of COVID PCR
tests, as conducted by clinical laboratories in California,
suggests that they are not sufficiently accurate regarding
61a
Appendix C
infectivity risk to warrant the central role they play in the
criteria the County has adopted for restricting activity. Id.
There are two major problems that render these
criteria scientifically unjustified. Id. Both criteria used
by the County -- the new daily cases number and the
positivity number -- are premised on a measurement
that includes many people who are identified as COVID
positive but who pose little or no community transmission
risk. Bhattacharya Decl., ¶35.
First, neither new daily cases number nor the positivity
number represent random samples of the California
population, but rather results from selected populations
who have chosen to obtain testing. Bhattacharya Decl., ¶31.
Without population representative sampling for testing,
the number does not reflect the risk of transmission and
thus is scientifically unjustified as a criterion for imposing
restrictions on normal activities. Id.
Second, the criteria do not account for the fact that
the RT-PCR tests, as used in most laboratories around
the U.S., likely register positive test results even for
non-infectious viral fragments. Bhattacharya Decl., ¶32.
Although a positive test result indicates that a person has
come into contact with the COVID genomic sequence or
some other viral antigen at some point, the mere presence
of the viral genome is not sufficient by itself to indicate
infectivity. Id. A binary “yes or no” approach to the RTPCR test will result in false positives, segregating large
numbers of people who are no longer infectious and not a
threat. Bhattacharya Decl., ¶35.
62a
Appendix C
The mortality rates used by the County as a
justification for the ban on outdoor dining similarly
lack a rational medical and scientific basis. The best
evidence on the COVID infection fatality rate (the
fraction of infected people who die from the infection)
comes from seroprevalence studies. Bhattacharya Decl.,
¶36. Seroprevalence studies provide better evidence of
the total number of people who have been infected than
do case reports or a positive RT-PCR test, which both
miss infected people who either are not identified by the
public health authorities or do not volunteer for RT-PCR
testing. Id. Because the County’s mortality rates ignore
unreported cases in the denominator, its fatality rate
estimates based on case reports and positive test counts
are substantially biased upwards. Id.
According to a meta-analysis by Dr. John Ioannidis of
every seroprevalence study conducted with a supporting
scientific paper (74 estimates from 61 studies and
51 different localities around the world), the median
infection survival rate from a COVID infection is 99.77%.
Bhattacharya Decl., ¶37. For COVID patients under
70, the meta-analysis finds an infection survival rate of
99.95%. Id. A newly released meta-analysis by analysts
independent of Dr. Ioannidis’ group, reaches qualitatively
similar conclusions. Id.
In September 2020, the CDC updated its current
best estimate of the infection fatality ratio—the ratio
of deaths to the total number of people infected—for
various age groups. Bhattacharya Decl., ¶39. The CDC
estimates that the infection fatality rate for people ages
63a
Appendix C
0-19 years is .00003, meaning infected children have a
99.997% infection survivability rate. Id. The CDC’s best
estimate of the infection fatality rate for people ages 20-49
years is .0002, meaning that young adults have a 99.98%
survivability rate. Id. The CDC’s best estimate of the
infection fatality rate for people age 50-69 years is .005,
meaning middle-aged persons have a 99.5% survivability
rate. Id. The CDC’s best estimate of the infection fatality
rate for elderly people aged 70+ years is .054, meaning
seniors have a 94.6% survivability rate. Id.
The CDC’s current best fatality rate estimates for
COVID patients who are symptomatic among patients
less than 50 years old is 0.05% (5 in 10,000), 0.2% for
patients between ages 50 and 64, and 1.3% for patients 65
and above. Bhattacharya Decl., ¶40. The infection fatality
rates are lower than these numbers since only a fraction
of patients is symptomatic. Id.
A study of the seroprevalence of COVID in Geneva,
Switzerland provides a detailed age break down of the
infection survival rate in a preprint companion paper:
99.9984% for patients 5 to 9 years old; 99.99968% for
patients 10 to 19 years old; 99.991% for patients 20 to 49
years old; 99.86% for patients 50 to 64 years old; and 94.6%
for patients above 65. Bhattacharya Decl., ¶41.
In all of California through August 2020, there have
been only two deaths among COVID patients below age
18. Id. 74.2% of all COVID-related deaths occurred in
patients 65 and older. Id.
64a
Appendix C
The scientific evidence shows that, for non-elderly
outdoor diners, the mortality risk from contracting the
disease is very low. Bhattacharya Decl., ¶43. The infection
survival rate is more than 99.8% for this population. Id.
Even this number overestimates the risk of outdoor dining,
since the probability of contracting the disease during an
outdoor meal is much less than one, though difficult to
estimate with available public health information. Id.
For elderly congregants (age 70+), the mortality risk
conditional on contracting the disease is higher, but still
small, with 98.7% of infected elderly people surviving the
infection, according to the infection fatality rate from the
Santa Clara study. Id. These risks are commensurate
with other risks that many people are prepared to take
in their lives. Id. The risks are lower, in fact negligible, if
precautions of wearing masks, social distancing, spacing
and hand washing are followed. Bhattacharya Decl., ¶44.
The risks of COVID transmission should be considered
against the substantial evidence that social eating provides
significant and tangible psychological and physiological
benefits for diners that are lost through the imposition
of such scientifically and epidemiologically unjustified
blanket and untargeted bans. Bhattacharya Decl., ¶45.
A comprehensive survey of 17,612 men and 19,581 women
over the age of 65 found that eating alone has been
linked to a higher incidence of depression among adults,
particularly those who live alone. Id. Eliminating the
possibility of all outdoor dining, no matter the precautions
taken, reduces or eliminates these important benefits. Id.
65a
Appendix C
Public health recommendations regarding behavior
by private actors (such as the decision to protest) should
weigh the benefits of that behavior against the public
health costs. Bhattacharya Decl., ¶50. If the benefits of the
undertaking are important enough relative to the public
health risks and care is taken to minimize those risks by
adhering to the extent possible to safe practice guidelines
promulgated by public health authorities, then the activity
should receive approval by public health experts. Id.
(iii) Lyons-Weiler
Dr. James Lyons-Weiler (“Lyons-Weiler”) is a scientific
researcher with a background in public health policy and
statistical research. Weiler Decl., ¶1. He opines that the
risk of COVID transmission in outdoor dining is minimal
because of the outdoor setting, with breeze, humidity, and
sunlight. Weiler Decl., ¶2.
As of November 27, 2020, 364,261 cases, including
presumed cases as well as laboratory-confirmed cases,
have been detected in the County, with 7,174 deaths
attributed to COVID infection. Weiler Decl., ¶8.
Transmission is understood to occur in enclosed spaces
with poor ventilation. Id.
In the County, the overall infection ca
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