Cnty. of L. A. Dep't of Pub. Health v. Superior Court of L. A. Cnty.

61 Cal.App.5th 478

275 Cal.Rptr.3d 752

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.

B309416

Court of Appeal, Second District, Division 4, California.

March 1, 2021

Rodrigo A. Castro-Silva, Acting County Counsel, Judy Whitehurst and Edward Morrissey, Assistant County Counsels, Natasha Mosley, Deputy County Counsel; Miller Barondess, Amnon Z. Siegel, Jason H. Tokoro, Minh-Van T. Do; Greines Martin, Stein & Richland, Timothy T. Coates and Marc J. Poster, Los Angeles, for Petitioners.

Brown George Ross O'Brien Annaguey & Ellis, Dennis S. Ellis, Eric M. George, Katherine F. Murray, Los Angeles, Ryan Q. Keech, Lori Sambol Brody, Carl Alan Roth, Noah S. Helpern, Richard A. Schwartz, Woodland Hills, for Real Party in Interest California Restaurant Association.

Geragos & Geragos, Mark J. Geragos, Los Angeles, and Mathew Hoeslyfor Real Party in Interest Mark's Engine Company No. 28 Restaurant, LLC.

Horvitz & Levy, Bradley S. Pauley and Eric S. Boorstin, Burbank, for The Bicycle Casino, LP, California Commerce Club, Inc., Crystal Casino, Hawaiian Gardens Casino, and Hollywood Park Casino Company, Inc., as Amicus Curiae on behalf of Real Parties in Interest.

Littler Mendelson, Bruce J. Sarchet, Sacramento, and Michael J. Lotito, San Francisco, for Restaurant Law Center as Amicus Curiae on behalf of Real Parties in Interest.

Gordon Rees Scully Mansukhani, Marie Trimble Holvick, San Francisco, for Golden Gate Restaurant Association as Amicus Curiae on behalf of Real Parties in Interest.

Burke, Williams & Sorensen, Joseph M. Montes and Brian S. Ginter, Los Angeles, for City of Santa Clarita as Amicus Curiae on behalf of Real Parties in Interest.

CURREY, J.

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.

In these consolidated cases, the trial court enjoined the County's order temporarily banning outdoor restaurant dining until the County performed a risk-benefit 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 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://www.cdc.gov/coronavirus/2019-ncov/faq.html> (as of February 2, 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% 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 (the "Order"). Under the Order, restaurants were permitted to continue take-out, 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. 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 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% 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% 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 ...