JD Bols v. Newsom

515 F.Supp.3d 1120

JD BOLS, et al., Plaintiffs,

v.Gavin NEWSOM, in his official capacity as Governor of California, et al., Defendants.

Case No.: 20cv873-BEN (BLM)

United States District Court, S.D. California.

Signed January 26, 2021

Steven Douglas Baric, Baric and Associates, Newport Beach, CA, for Plaintiffs.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Anthony P. O'Brien, California Office of Attorney General, Sacramento, CA, for Defendants Gavin Newsom, Xavier Becerra, Erica Pan M.D.

George F. Schaefer, Office of the City Attorney, San Diego, CA, for Defendant Kevin Faulconer.

John P. Cooley, Thomas Dale Bunton, County of San Diego Office of County Counsel, San Diego, CA, for Defendants Wilma J. Wooten, Nathan Fletcher, Kristen Gaspar, Jim Desmond, Greg Cox, Dianne Jacob, William Gore.

ORDER Denying Motions to Dismiss

ROGER T. BENITEZ, United States District Judge The Plaintiffs filed a Second Amended Verified Complaint on November 9, 2020. The Complaint sets out seven claims for relief. Presently before the Court are the motions to dismiss of the State, County, and City defendants.¹ All of the motions are denied.

I. Background

A. The Plaintiffs

Plaintiff JD Bols is a San Diego County resident and small business owner who leases commercial property. Many of Bols’ San Diego County commercial properties are rented to tenants who operate churches and beauty salons. Plaintiff Amy Mullins-Boychak owns a family hair salon specializing in serving clients with special needs and autism. Plaintiff Leia Gadow operates a business in the beauty industry. Plaintiff Mandy Millus operates a beauty salon as a booth rental salon. Each have been subject to one or more of the defendants’ shutdown orders.

B. The Defendants

The Complaint names the following defendants: (1) Gavin Newsom in his official capacity as the Governor of California; (2) Xavier Becerra in his official capacity as the Attorney General of California; (3) Erica Pan, M.D., in her official capacity as the Director of the State Public Health Officer; (4) Kevin Faulconer in his official capacity as Mayor of San Diego (Faulconer has been recently replaced); (5) Wilma J. Wooten, M.D., in her official capacity as Medical Officer for the County of San Diego; (6) Nathan Fletcher in his official capacity as member of the San Diego Board of Supervisors; (7) Kristen Gaspar in her official capacity as a member of the San Diego Board of Supervisors; (8) Jim Desmond in his official capacity as a member of the San Diego Board of Supervisors; (9) Greg Cox in his official capacity as a member of the San Diego Board of Supervisors; (10) Dianne Jacob in her official capacity as a member of the San Diego County Board of Supervisors (Jacob has been recently replaced); and (11) William Gore in his official capacity as San Diego Sheriff.

C. The Stay Home Orders²

On March 4, 2020, Governor Newsom proclaimed a State of Emergency due to a health crisis caused by the spread of SARS-CoV-2, the virus that causes COVID-19. According to the Centers for Disease Control ("CDC"), the virus is primarily spread from person to person such that a person can become infected by coming into close contact with a person who has COVID-19. Governor Newsom issued Executive Order N-33-20 (the first stay home order), directing all California residents to heed the State Public Health Officer's directive ordering all individuals living in the State of California to stay home or at their place of residence except for those working in essential industries. Californians working in essential industries were permitted to continue working. Plaintiffs’ businesses were not deemed essential industries. At the outset, hair and nail salons were ordered closed. Months later they were permitted to re-open. On December 6, 2020, San Diego County non-essential indoor business operations (including hair and nail salons) were once again ordered closed. South Bay United Pentecostal Church , 985 F.3d at 1136 ("The Regional Stay at Home Order shutters many businesses that were previously allowed to operate with restrictions under Tier 1 of the Blueprint, such as outdoor dining, barbershops, and nail salons.").

II. The Motions to Dismiss

A motion to dismiss under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys. , 534 F.3d 1116, 1121 (9th Cir. 2008). When considering a Rule 12(b)(6) motion, the court "accept[s] as true facts alleged and draw[s] inferences from them in the light most favorable to the plaintiff." Stacy v. Rederiet Otto Danielsen , 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege conceivably unlawful conduct but must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Zixiang Li v. Kerry , 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

Mootness

State Defendants argue that the claims are moot because now under the Blueprint for a Safer Economy, hair and nail salons may operate statewide, subject to other health and safety guidelines. Reply Brief in Support (filed Nov. 16, 2020) (Dkt. # 57) at 1 ("Under the Blueprint, hair and nail salons can remain open statewide ... Plaintiffs fail to plausibly allege ongoing injury caused by State Defendants because, contrary to their allegations, the operative state health directives permit hair and nail salons to operate."). In the time since that argument was made, however, hair and nail salons once again received orders to close their businesses.³

And on January 24, 2021, California officials again lifted the regional shutdown orders. See e.g., www.sandiegouniontribune.com/news/california/story/2021-01-24/newsom-cancels-coronavirus-stay-at-home-order (last visited Jan. 26, 2021). In the process, the State Defendants’ argument has lost some persuasive force. The recent events illustrate why there is a mootness exception for cases that are capable of repetition while evading review.

"A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III — when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam)). However, there is an exception to the mootness doctrine for a case that is capable of repetition, yet evading review. "A dispute qualifies for that exception only ‘if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.’ " United States v. Sanchez-Gomez , ––– U.S. ––––, 138 S. Ct. 1532, 1540, 200 L.Ed.2d 792 (2018) (quoting Turner v. Rogers, 564 U.S. 431, 439–440, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) ). On the other hand, "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (emphasis added). That standard is not satisfied here. The Defendants are not constrained from enacting or re-enacting restrictions on plaintiffs and their businesses. Because the current shutdown orders demonstrate that the allegedly wrongful behavior can reasonably be expected to re-occur as health conditions wax and wane, the exception to mootness applies. Accordingly, the Court finds that Plaintiffs’ claims are not moot.

III. DISCUSSION

Plaintiffs set out seven claims for relief. One or more defendants move to dismiss each of the seven claims. Each claim is discussed in order.

A. First Claim for Relief: Due Process

All Plaintiffs assert a due process claim under 42 U.S.C. § 1983 against the State Defendants Newsom, Becerra, and Pan, in their official capacities. The Plaintiffs assert the State Defendants have violated federal constitutional rights arising under both substantive due process and procedural due process theories.

"The Supreme Court has not specified the boundaries of the right to pursue a profession, but has identified it generally." Engquist v. Oregon Dept. of Agr. , 478 F.3d 985, 997 (9th Cir. 2007), aff'd on other grounds sub nom. Engquist v. Oregon Dept. of Agr. , 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Plaintiffs’ theory of substantive due process liability is that the stay-at-home orders unlawfully abridge their right to pursue an occupation. "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure." Truax v. Raich , 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131 (1915) ; see also Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ("Without doubt, [the guarantee of liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.").

The Supreme Court recognizes that the Fourteenth Amendment's...