Abiding Place Ministries v. Newsom

Opinion

1 2 3 4 5 6 7 10 11 ABIDING PLACE MINISTRIES, a Case No.: 3:21-cv-00518-RBM-DDL Church, 12 ORDER GRANTING IN PART AND Plaintiff, 13 DENYING IN PART COUNTY v. DEFENDANTS’ MOTION TO 14 DISMISS GAVIN NEWSOM, in his individual 15 capacity; et al.,

16 Defendants. 17 [Doc. 22]

18 On May 28, 2021, Plaintiff Abiding Place Ministries (“Plaintiff”) filed their First 19 Amended Complaint (Doc. 13) (“FAC”), naming Gavin Newsom, Xavier Becerra, Sonia 20 Y. Angell, Wilma J. Wooten, County of San Diego (“County”), and Does 1 through 100 21 as defendants. Aside from the County, all Defendants1 have been named in their individual 22 23

24 1 The Court notes that the header of each cause of action within the FAC contains a 25 parenthetical that each claim is directed “Against All Defendants In Their Individual 26 Capacity Only.” (FAC at 14-20.) Although the header omits reference to the County, the Court will construe this omission as an error in light of the parties’ briefing on the motion 27 to dismiss. 28 1 1 capacities. On August 30, 2021, Defendants Wilma J. Wooten (“Wooten”) and the 2 County of San Diego (collectively “County Defendants”) filed a Motion to Dismiss 3 Plaintiff’s FAC for failure to state a claim upon which relief can be granted pursuant to 4 Federal Rule of Civil Procedure 12(b)(6) (“Motion”). (Doc. 22.). The County Defendants 5 filed a Request for Judicial Notice accompanying their motion to dismiss, which the Court 6 will address herein. (Doc 22-2.) On August 30, 2021, Defendants Gavin Newsom, Xavier 7 Becerra, and Sonia Y. Angell (“State Defendants”), in their individual capacities, filed a 8 Motion to Dismiss Plaintiff’s FAC. (Doc. 21.) On October 18, 2021, Plaintiff filed a 9 combined response in opposition to the State Defendants’ Motion and the County 10 Defendants’ Motion. (Doc. 25.) The County Defendants filed a reply on November 15, 11 2021. (Doc. 27.) For the reasons outlined below, the County Defendants’ Motion to 12 Dismiss is GRANTED IN PART and DENIED IN PART. 14 A. Factual Background 15 On March 4, 2020, Governor of California Gavin Newsom declared a State of 16 Emergency in response to the threat of COVID-19. (FAC ¶ 18.) On March 19, 2020, 17 Governor Newsom issued Executive Order N-33-20, also known as the “Stay at Home 18 Order” (herein “State Order”). (Id. at ¶ 19.) This State Order required that all Californians 19 stay home or at their place of residence except as needed to “maintain the continuity of 20 operations of the federal critical infrastructure sectors[.]” (Id. at ¶ 19.) It further provided 21 that all Californians “must have access to such necessities as food, prescriptions, and health 22 care” and therefore “may leave their homes or places of residence to obtain or perform 23 [these] functions . . . or to otherwise facilitate authorized necessary activities[.]” (Id. at ¶ 24 20.) On March 22, 2020, the State published a list of “Essential Critical Infrastructure 25

26 2 Plaintiff’s original complaint filed on March 24, 2021, did not name Wooten as a 27 defendant. 28 2 1 Workers” naming “faith-based services that are provided through streaming and other 2 technology” as one of the exempted essential categories. (Id. at ¶ 22.) 3 On March 27, 2020, San Diego Public Health Officer Wilma J. Wooten 4 “promulgated an order prohibiting gatherings of more than ten persons . . . subject to all 5 the same exemptions as the State Order” (“County Order”). (Id. at ¶ 32.) On April 8, 2020, 6 Wooten revised the County Order changing the cap on gatherings from ten persons to one 7 person, effective April 9, 2020. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.) 8 Plaintiff is a church based in San Diego County, which hosts its small congregation 9 of typically fewer than 100 persons for Sunday service at their outdoor ranch venue, the 10 Mission Base. (FAC at ¶¶ 23, 25.) “Because of the pandemic and the closure Orders, the 11 Church met outdoors—at the Mission Base—for worship on March 22, 2020. The 12 following week, March 29, the Church met under a large open-air tent at the Mission Base 13 . . .” (Id. at ¶ 30.) Plaintiff claims they interpreted the State Order describing “faith-based 14 services” as essential to “exempt it from the business closures” and they “believed that its 15 members were permitted to leave their home when necessary.” (Id. at ¶ 31.) The FAC 16 alleges it was not until March 29, 2020 when a San Diego Sheriff’s Deputy visited the 17 Church’s service, and early April, when meeting with County Sheriff officials, that the 18 Church became aware they could not congregate outdoors due to the State and County 19 Orders. (Id. at ¶¶ 33-35.) 20 On April 2, 2020, Plaintiff, through their attorney, Jeremiah Graham, and pastor, 21 Mark Spitsbergen, proposed multiple mitigation protocols to the San Diego County 22 Sheriff’s Department “to avoid conflict with the County’s restrictions while maintaining 23 in-person gatherings” including offering drive-in services. (Id. at ¶¶ 36-37; Doc. 13-1, Ex. 24 A at 1-10.) On April 4, 2020, Wooten wrote a letter informing Plaintiff that its members 25 “must stay at home and not congregate.” (FAC at ¶ 38; Doc. 13-2, Ex. B at 2-3.) Plaintiff 26 then proposed additional mitigation protocols, which were rejected by an April 8, 2020 27 letter from Wooten. (Id. at ¶¶ 39-41; Doc. 13-3, Ex. C at 2-26.) Wooten’s letter to Plaintiff 28 3 1 stated, “[m]embers of your congregation are not allowed to travel to your site. This would 2 be an unlawful gathering, even if they remain in their vehicles as they did last Sunday.” 3 (Id. at ¶ 42; Doc. 13-3, Ex. C at 16-17.) It further advised “[i]f the members of your 4 congregation do not abide by my Order, the Sheriff will take actions necessary to enforce 5 the Order.” (Id. at ¶ 42; Doc. 13-3, Ex. C at 16-17.) Consequentially, Plaintiff did not 6 congregate in person on April 12 and April 19, 2020. (Id. at ¶¶ 45-47.) On April 18, 2020, 7 Plaintiff became aware of a statement made by State officials clarifying that “drive-in 8 services were now permissible” under the State Order. (Id. at ¶ 46.) On April 20, 2020, 9 the County entered its “Supplemental Status Update” authorizing drive-in worship services 10 which adopted the Governor’s interpretation of the State Order by allowing drive-in 11 services. (Id. at ¶¶ 48-49.) 12 B. Procedural Background 13 On May 28, 2021, Plaintiff’s FAC named Wooten in her individual capacity only. 14 The FAC is a revival of an earlier filed case filed in this District, Abiding Place Ministries 15 v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG, which was voluntarily dismissed 16 without prejudice “after the Defendants modified their COVID-19 policies prohibiting 17 houses of worship from holding in-person gatherings,” thus rendering the lawsuit moot.3 18 (FAC at ¶ 2); see also Case No. 3:20-cv-00683-BAS-AHG, Docs. 58, 66-67.4 The FAC 19 here asserts six claims for relief, including violations of the Free Exercise Clause of the 20 First Amendment, Establishment Clause of the First Amendment, Free Speech Clause of 21

22 3 U.S. District Judge Cynthia Bashant denied Plaintiff’s application for a temporary 23 restraining order and denied Plaintiff’s motion for preliminary injunction seeking to enjoin 24 enforcement of orders restricting Plaintiff’s engagement in religious services. See Case No. 3:20-cv-00683-BAS-AHG, Docs. 2, 7-8, 10, 24, 58. 25 4 The prior case originally named Wooten in her official capacity as Public Health Officer 26 for San Diego County, but Abiding Place subsequently amended the complaint and did not name Wooten as a defendant. See Abiding Place Ministries, Case No. 3:20-cv-00683- 27 BAS-AHG, Docs. 1, 22, 60. 28 4 1 the First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process 2 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth 3 Amendment. (FAC at 14-21.) Plaintiff seeks relief only in the form of nominal damages 4 plus attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988. (FAC at ¶¶ 2-4.) 5 The County Defendants argue three separate grounds for dismissal: (1) Wooten is 6 entitled to qualified immunity; (2) the County Defendants cannot be held liable under 42 7 U.S.C. § 1983 (“Section 1983”) for enforcing a State Order; (3) the County is entitled to 8 Eleventh Amendment immunity; and (4) Plaintiff’s second, third, fourth, and fifth causes 9 of action fail to state a claim for relief under Rule 12(b)(6). (Doc. 22-1.) Plaintiff contends 10 qualified immunity should not extend to Wooten, the County is not entitled to Eleventh 11 Amendment immunity, and Plaintiff has pled sufficient facts to support all six causes of 12 action asserted in the FAC. (Doc. 25 at 5-16.) 14 The Court first addresses the County Defendants’ request for judicial notice which 15 accompanied its motion to dismiss. (Doc 22-2 at 1.) 16 A court generally cannot consider materials outside the pleadings on a motion to 17 dismiss for failure to state a claim. FED. R. CIV. P. 12(d). A court may, however, consider 18 materials subject to judicial notice without converting the motion to dismiss into one for 19 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Under Federal 20 Rule of Evidence 201(b), a court may take judicial notice, either on its own accord or by a 21 party’s request, of facts that are not subject to reasonable dispute because they are (1) 22 “generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 23 and readily determined from sources whose accuracy cannot reasonably be questioned.” 24 FED. R. EVID. 201(b). A court may take judicial notice of court filings, other matters of 25 public record, and documents that are readily verifiable, including public records and 26 government documents available from reliable sources on the internet, such as websites 27 run by governmental agencies. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 28 5 1 741, 746 n.6 (9th Cir. 2006); see U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 2 1362, 1381 (C.D. Cal. 2014), aff’d sub nom. United States v. DJO Glob., Inc., 678 F. App’x 3 594 (9th Cir. 2017) (“the court can take judicial notice of [p]ublic records and government 4 documents available from reliable sources on the Internet, such as websites run by 5 governmental agencies”) (internal quotations omitted); see also Hansen Beverage Co. v. 6 Innovation Ventures, LLC, No. 08-CV-1166-IEG POR, 2009 WL 6597891, at *2 (S.D. Cal. 7 Dec. 23, 2009) (“[i]nformation on government agency websites has often been treated as 8 properly subject to judicial notice”). A court may also take judicial notice of publications 9 introduced “to indicate what was in the public realm at the time, not whether the contents 10 of those articles were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena, 11 592 F.3d 954, 960 (9th Cir. 2010). 12 The County Defendants request the Court take judicial notice of nineteen exhibits, 13 including the hearing transcript denying Abiding Place’s application for temporary 14 restraining order (“TRO”) and other filings in the predecessor case5 (Exhibits 1, 2, 12), a 15 TRO hearing transcript and TRO briefing in similar COVID-19 cases6 (Exhibits 11, 18), 16 government websites tracking COVID-19 metrics (Exhibits 3-4), Governor Newsom’s 17 Proclamation of a State of Emergency and Executive Order N-33-20 (Exhibits 5, 7), 18 President Trump’s Proclamation on Declaring a National Emergency Concerning COVID- 19 19 (Exhibit 6), California State Public Health Officer’s March 22, 2020 list of designated 20 “Essential Critical Infrastructure Workers” and its April 28, 2020 revised list (Exhibits 8, 21 13), County of San Diego Orders of the Health Officer and Emergency Regulations 22 (Exhibits 9-10, 15, 17), State of California’s COVID-19 Industry Guidance dated May 25, 23 24 25 5 See Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG. 26 6 Gish v. Newsom, No. EDCV 20-755-JGB-KKx, Doc. 13 (C.D. Cal. Apr. 17, 2020); South Bay United Pentecostal Church v. Newsom, No. 3:20-cv-00865-BAS-AHG (S.D. Cal. May 27 15, 2020). 28 6 1 2020 and June 12, 2020 (Exhibits 14, 16), and a May 7, 2020 letter from the Director of 2 the Governor’s Office of Emergency Services to the Chief Administrative Officer of Sutter 3 County (Exhibit 19). Plaintiff does not object to the request nor does it call into question 4 the credibility of the source of any material subject to the request for judicial notice. (Doc. 5 25.) 6 The government documents, information on government websites, and court filings 7 referenced above are all proper subjects of judicial notice. The Court therefore GRANTS 8 the County Defendants’ request for judicial notice. 10 A. Legal Standard 11 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be 12 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its 13 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 14 plausibility when the plaintiff pleads factual content that allows the court to draw the 15 reasonable inference that the defendant is liable for the misconduct alleged. The 16 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 17 sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 18 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the 19 court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings 20 in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine 21 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 22 However, the Court is “not bound to accept as true a legal conclusion couched as a 23 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the 24 Court “required to accept as true allegations that contradict exhibits attached to the 25 Complaint or matters properly subject to judicial notice, or allegations that are merely 26 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 27 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 28 7 1 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 2 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 3 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted). 4 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend 5 even if no request to amend the pleading was made, unless it determines that the pleading 6 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. 7 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 8 B. Analysis 9 i. Qualified Immunity 10 The County Defendants argue Plaintiff has not pleaded a violation of any clearly 11 established right, therefore, the FAC should be dismissed under the doctrine of qualified 12 immunity as to Wooten. (Doc. 22-1 at 15.) 13 Qualified immunity shields government officials from civil damages liability under 14 Section 1983 unless a plaintiff pleads facts showing “(1) that the official violated a statutory 15 or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 16 challenged conduct.” See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal citation 17 omitted); Reichle v. Howards, 566 U.S. 658, 664 (2012); District of Columbia v. Wesby, 18 138 S. Ct. 577, 589 (2018). A right is “clearly established” when “at the time of the 19 challenged conduct, the contours of [the] right are sufficiently clear that every reasonable 20 official would have understood that what he is doing violates that right.” See Ashcroft, 563 21 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Morales v. Fry, 22 873 F. 3d 817, 821 (9th Cir. 2017). To show a right is clearly established, a case does not 23 need to be directly on point, but Plaintiff must show existing precedent that places the 24 statutory or constitutional question beyond debate, and the precedent must be clear enough 25 that every reasonable official would interpret it to establish the particular rule plaintiff is 26 seeking to apply. Wesby, 138 S. Ct. at 590; Ashcroft, 563 U.S. at 741. 27 The Supreme Court has repeatedly stressed that the clearly established right must be 28 8 1 defined with specificity, and courts must not define clearly established law “at a high level 2 of generality, since doing so avoids the crucial question whether the official acted 3 reasonably in the particular circumstances that he or she faced.” Wesby, 138 S. Ct. at 590. 4 Courts must look at the specific context of the case when examining whether the violative 5 nature of defendant’s particular conduct is clearly established, and so long as no precedent 6 “squarely governs the facts” the state official is entitled to qualified immunity. Hamby v. 7 Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016). To overcome qualified immunity, the 8 plaintiff must identify clearly established law that is particularized to the facts of the case, 9 or in other words, case precedent where a defendant acting under similar circumstances 10 was held to have violated a constitutional right. White v. Pauly, 137 S. Ct. 548, 552 (2017); 11 Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (the prior case law must be 12 “controlling,” meaning from the Ninth Circuit or Supreme Court, or otherwise “be 13 embraced by a ‘consensus’ of courts outside the relevant jurisdiction.”). 14 District courts have discretion to decide which of the two prongs of the qualified 15 immunity analysis to approach first and they are encouraged to address the prongs in the 16 order that would expedite resolution of the case. Morales, 873 F. 3d at 822; Ashcroft, 563 17 U.S. at 735. The Supreme Court has stressed the importance of deciding qualified 18 immunity “at the earliest possible stage in litigation” to preserve the doctrine’s status as “a 19 true immunity from suit rather than a mere defense to liability.” Morales, 873 F. 3d at 822. 20 Here, the Court finds it appropriate to consider qualified immunity at the motion to 21 dismiss stage and it will first address the second prong of the qualified immunity analysis. 22 Morales, 873 F. 3d at 822; Ashcroft, 563 U.S. at 735. 23 As to Wooten’s alleged violations of the Free Exercise Clause of the First 24 Amendment, Establishment Clause of the First Amendment, Free Speech Clause of the 25 First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process 26 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth 27 Amendment, there was no clear precedent in March or April 2020 that would have put 28 9 1 every reasonable official on notice that promulgating orders restricting in person religious 2 gatherings to slow the spread of the COVID-19 virus was clearly and definitively 3 unconstitutional. Plaintiff fails to cite any factually-similar precedent to suggest that its 4 prima facie case rests upon clearly established law. White, 137 S. Ct. at 552; Sharp, 871 5 F.3d at 911; Gordon v. Cty. of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (it is plaintiff’s 6 burden to show the rights allegedly violated were clearly established). Instead, Plaintiff 7 contends qualified immunity does not apply “because the right to assemble for Church is a 8 clearly established right” and “it has been clearly established that no government in this 9 nation can interfere with the free exercise of religion, show hostility to religion, or make 10 assembly a crime.” (Doc. 25 at 5, 8.) However, this ignores Supreme Court guidance to 11 avoid defining clearly established law at a “high level of generality.” See al-Kidd, 563 12 U.S. at 742; see also Gordon, 6 F.4th at 969 (stating, “[q]ualified immunity is not meant to 13 be analyzed in terms of a ‘general constitutional guarantee,’ but rather the application of 14 general constitutional principles in a particular context.”) (internal citation omitted). 15 In the spring of 2020, the contours of the Free Exercise Clause of the First 16 Amendment, Establishment Clause of the First Amendment, Free Speech Clause of the 17 First Amendment, Freedom of Assembly Clause of the First Amendment, Due Process 18 Clause of the Fourteenth Amendment, and Equal Protection Clause of the Fourteenth 19 Amendment were not sufficiently clear as to whether the State and/or County could impose 20 restrictions on religious worship services in an effort to curtail transmission of the COVID- 21 19 virus. At a minimum, courts were guided by Jacobson v. Commonwealth of 22 Massachusetts, which held “a community has the right to protect itself against an epidemic 23 of disease which threatens the safety of its members” as the Constitution does not guarantee 24 “an absolute right in each person to be, at all times and in all circumstances, wholly freed 25 from restraint.” Jacobson, 197 U.S. 11, 27 (1905). Courts were also guided by Prince v. 26 Massachusetts which provides “[t]he right to practice religion freely does not include 27 liberty to expose the community . . . to communicable disease . . .” 321 U.S. 158, 166-167 28 10 1 (1944). Similarly, courts that decided the issue of whether a state’s and county’s COVID- 2 19 restrictions on religious worship services violated the constitution found no likelihood 3 of success on such claims. Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv- 4 00683-BAS-AHG, Doc. 10 at 17-21 (Apr. 13, 2020) (denying temporary restraining order 5 seeking to enjoin enforcement of state and county orders restricting religious services, in 6 part, due to plaintiff’s failure to demonstrate a likelihood of success on their claims that the 7 orders violated the free exercise of religion, freedom of assembly, and Fourteenth 8 Amendment due process); Gish v. Newsom, No. EDCV20-755-JGB-KKx, 2020 WL 9 1979970 (C.D. Cal. Apr. 23, 2020) (denying temporary restraining order seeking to enjoin 10 enforcement of state and county orders restricting religious services, practices, or activities 11 on basis that plaintiff failed to demonstrate a likelihood of success on their claim that the 12 orders violated the free exercise of religion); Cross Culture Christian Ctr. v. Newsom, 445 13 F. Supp. 3d 758, (E.D. Cal. May 5, 2020) (denying temporary restraining order seeking to 14 enjoin enforcement of state and county orders restricting in-person religious services on 15 basis that plaintiff failed to demonstrate a likelihood of success on their claims that the 16 orders violated the free exercise of religion). In considering the foregoing, Wooten is 17 entitled to qualified immunity because in March and April of 2020 (i.e., the time of the 18 challenged conduct), there was no prior, factually comparable controlling precedent that 19 would have informed her that promulgating County orders restricting gatherings to reduce 20 the spread of COVID-19 violated a clearly established constitutional right “beyond 21 debate.” Wesby, 138 S. Ct. at 590; Ashcroft, 563 U.S. at 741. 22 Without any binding case precedent available at the time of the challenged conduct 23 that establishes a defendant’s restriction of religious services as a result of the pandemic 24 violates the Free Exercise Clause of the First Amendment, Establishment Clause of the 25 First Amendment, Free Speech Clause of the First Amendment, Freedom of Assembly 26 Clause of the First Amendment, Due Process Clause of the Fourteenth Amendment, and 27 Equal Protection Clause of the Fourteenth Amendment, Plaintiff cannot overcome 28 11 1 qualified immunity. White, 137 S. Ct. at 552. Accordingly, the County Defendants’ 2 motion to dismiss Plaintiff’s first, second, third, fourth, fifth, and sixth causes of action 3 against Wooten on qualified immunity grounds is GRANTED. 4 ii. County’s Enforcement of State Order 5 The County Defendants contend they cannot be held liable under Section 1983 for 6 enforcing Governor Newsom’s State Order and they “had no authority to permit activities 7 the State Order prohibited.” (Doc. 22-1 at 22-23.) Citing to Doby v. DeCrescenzo, the 8 County Defendants contend “when a county is merely enforcing state law, without 9 adopting any particular policy of its own, it cannot be held liable under the Monell line of 10 cases.” (Id. at 22 (citing DeCrescenzo, 171 F.3d 858, 868 (3d Cir. 1999), citing Monell v. 11 Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).) They contend its 12 “Public Health Orders were coextensive with the State Orders, and permitted religious 13 services to the maximum extent allowed by the State Order.” (Id. at 23.) Without citation 14 to any authority, Plaintiff counters that “[a]s to . . . relief from liability, the County is a 15 municipality, and not entitled to State immunity” and it has alleged “each Defendant was 16 an inextricable participant in depriving Plaintiff of its rights.” (Doc. 25 at 5, 10.) The 17 County Defendants argue that Plaintiff’s conclusory opposition constitutes a waiver of any 18 argument on this issue. (Doc. 27 at 3-4.) The Court, however, is inclined to address this 19 issue substantively. 20 “The Supreme Court in Monell held that municipalities may only be held liable 21 under section 1983 for constitutional violations resulting from official county policy or 22 custom.” Benavidez v. Cty. of San Diego, 993 F.3d 1134 (citing Monell, 436 U.S. at 694). 23 “The custom or policy must be a deliberate choice to follow a course of action made from 24 among various alternatives by the official or officials responsible for establishing final 25 policy with respect to the subject matter in question.” Id. (internal citations and quotations 26 omitted). The policies can include written policies, unwritten customs or practices, failure 27 to train municipal employees on avoiding certain obvious constitutional violations, “and, 28 12 1 in rare instances, single constitutional violations are so inconsistent with constitutional 2 rights that even such a single instance indicates at least deliberate indifference of the 3 municipality.” Id. (internal citations omitted). 4 Here, Plaintiff has alleged the County “is responsible for promulgating, interpreting 5 and enforcing the Orders issued by the San Diego County Public Health Officer.” (FAC 6 at ¶ 12.) It has alleged the County’s April 8, 2020 revised Order placed “heightened 7 restrictions on non-exempt private gatherings” including changing the cap on gatherings 8 from ten persons to one person. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.) The County 9 threatened enforcement, penalties, and fines if Plaintiff did not comply with the County 10 Order. (Id. at ¶ 42.) Plaintiff alleges this action by the County “forced the Church’s 11 members to remain away from church against their will, under threat of punishment . . .” 12 (Id. at ¶ 43.) Plaintiff contends the State and County Orders and Defendants’ enforcement 13 thereof violated their rights. (Id. at ¶¶ 56, 63, 65-66, 74, 82, 90, 96.) In light of the 14 foregoing, the allegations of the FAC regarding the County’s alleged unconstitutional 15 policy is sufficient overcome the County Defendants’ argument that it cannot be liable 16 under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this 17 ground. 18 iii. Eleventh Amendment Immunity 19 The County Defendants also contend that their Orders merely incorporated 20 California’s guidelines, and thus, they were simply enforcing state law and are entitled to 21 immunity under the Eleventh Amendment. (Doc. 22-1 at 25-26.) Plaintiff contends the 22 Eleventh Amendment does not extend to counties, and the County Defendants have failed 23 to satisfy the narrow exception which applies when a county is acting as an arm of the state. 24 (Doc. 25 at 10-11.) 25 Normally, neither counties nor municipalities enjoy Eleventh Amendment 26 immunity. Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 27 (1979) (“[T]he Court has consistently refused to construe the Amendment to afford 28 13 1 protection to political subdivisions such as counties and municipalities, even though such 2 entities exercise a ‘slice of state power.’”). “State sovereign immunity does not extend to 3 county and municipal governments, unless state law treats them as arms of the state.” Sato 4 v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (internal citation omitted). 5 Application of “Eleventh Amendment immunity as an arm of the State . . . is determined 6 by examining five factors (known as the Mitchell factors): (1) whether a money judgment 7 would be satisfied out of state funds; (2) whether the entity performs central governmental 8 functions; (3) whether the entity may sue or be sued; (4) whether the entity has the power 9 to take property in its own name or only the name of the state; and (5) the corporate status 10 of the entity.” See Culinary Studios v. Newsom, 517 F. Supp. 3d 1042,1060 (E.D. Cal. Feb. 11 8, 2021) (citations omitted); see also Mitchell v. L.A. Cty. Cmty. Coll. Dist., 861 F.2d 198, 12 201 (9th Cir. 1988). The first factor is the most important. Culinary Studios, 517 F. Supp. 13 3d at 1060 (citations omitted). “[T]he second factor has two components: (1) whether a 14 matter is of statewide and not local concern, and (2) the extent to which the state exercises 15 centralized government control over the performance of the particular function at issue.” 16 Id. (citation omitted). 17 Consistent with other courts considering COVID-19 issues and weighing the 18 Mitchell factors, the Court declines to find the County Defendants were acting as an arm 19 of the state. See generally Culinary Studios, 517 F. Supp. 3d at 1059-61; Bols v. Newsom, 20 515 F. Supp. 3d 1120, 1133-35 (S.D. Cal. Jan. 26, 2021), reconsideration denied, No. 20- 21 CV-873-BEN-BLM, 2021 WL 1313545 (S.D. Cal. Apr. 8, 2021). As set forth Section 22 III.B.ii. supra, the County Orders were not merely “co-extensive with the State Order.” 23 Supra pp. 12-13. The FAC alleges the County’s April 8, 2020 Order placed “heightened 24 restrictions on non-exempt private gatherings” and the County threatened enforcement, 25 penalties, and fines related to its own Order. (Id. at ¶¶ 40-41; Doc. 13-3, Ex. D at 19-24.) 26 As such, this first Mitchell factor weighs against the County because it is disputed whether 27 a money judgment would be satisfied out of state funds. The County does not dispute that 28 14 1 the third and fourth factors weight against it. (Doc. 22-1 at 27.) The second Mitchell factor 2 weighs in favor of the County in that it was following the State’s emergency orders. See 3 Culinary Studios, 517 F. Supp. 3d at 1060-61. As to the fifth Mitchell factor, “the Supreme 4 Court has already held that California counties have independent corporate status and are 5 not agents of the State of California.” Ray v. Cty. of Los Angeles, 935 F.3d 703, 711, n.7 6 (9th Cir. 2019) (citing Moor v. Alamda Cty., 411 U.S. 693, 719 (1973)). Weighing these 7 factors, the Court concludes that the County Defendants are not entitled to immunity under 8 the Eleventh Amendment and the County Defendants’ motion to dismiss is DENIED on 9 this ground. 10 iv. Establishment Clause 11 The County Defendants contend the FAC’s second cause of action fails to allege a 12 viable Establishment Clause claim against it because the State and County Orders had a 13 secular purpose and the orders and enforcement decisions did not endorse any religion 14 because the orders banned gatherings for all religions along with secular gatherings. (Doc. 15 22-1 at 27-28.) Plaintiff contends the State and County Orders and Defendants’ “ad hoc 16 enforcement thereof had the primary effect of inhibiting religious activity.” (Doc. 25 at 17 13.) It contends the Orders “exempted 153 categories of in-person gatherings, giving 152 18 of those favored status (no restrictions), and allowing religious gatherings only through 19 streaming or other technology.” (Doc. 25 at 13; FAC ¶¶ 22, 44.) 20 A government action violates the Establishment Clause if it lacks a secular 21 legislative purpose or endorses religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); 22 Trunk v. City of San Diego, 629 F.3d 1099, 1106 (9th Cir. 2011) (“the Supreme Court 23 essentially has collapsed the[ ] last two prongs [of the test articulated in Lemon] to ask 24 whether the challenged governmental practice has the effect of endorsing religion.”)); but 25 see Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424-28 (2022) (criticizing the Ninth 26 Circuit’s use of the Lemon test, specifically as to the endorsement test). 27 Here, the FAC fails to allege the County Orders lacked a secular purpose. See Gish, 28 15 1 2020 WL 1979970, at *7 (denying TRO, in part, on basis that state and county orders likely 2 did not violate the Establishment Clause). However, it alleges the County’s Orders and 3 Defendants’ enforcement “had the primary effect of inhibiting religious activity” and 4 caused “excessive government entanglement with religion.” (FAC ¶¶ 67-67.) Plaintiff 5 contends its religious services exempted from gatherings were treated differently than other 6 public gatherings. (FAC ¶¶ 17, 44-45.) At this stage of the pleadings, the County 7 Defendants’ motion to dismiss the second cause of action is DENIED. 8 v. Freedom of Speech & Freedom of Assembly 9 The County Defendants seek to dismiss Plaintiff’s third and fourth causes of action 10 premised on alleged violations of the First Amendment’s freedom of speech and freedom 11 of assembly clauses. They contend the Orders themselves are content-neutral time, place, 12 and manner regulations of speech and satisfy the test set forth in Perry Education 13 Association v. Perry Local Education Association. (Doc. 22-1 at 29 (citing Perry, 460 U.S. 14 37, 45 (1983)).) Plaintiff counters that its FAC alleges the County Defendants engaged in 15 content-based restrictions on speech and assembly, as the enforcement of the County 16 Orders depended on whether the gatherings were for religious purposes or secular 17 purposes. (Doc. 25 at 14-15.) 18 The level of scrutiny applied to restrictions on First Amendment speech and 19 assembly depends on whether the restrictions are content and viewpoint-based restrictions 20 or content-neutral time, place, and manner restrictions. Turner v. Broad. Sys., Inc. v. FCC, 21 512 U.S. 622, 642 (1994); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 22 (1980). Content and viewpoint-based restrictions are subject to strict scrutiny while 23 content-neutral restrictions are subject to intermediate scrutiny. Reed v. Town of Gilbert, 24 576 U.S. 155, 163-64 (2015); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). 25 Courts “consider whether a regulation of speech on its face draws distinctions based on the 26 message a speaker conveys.” Reed, 576 U.S. at 163 (internal quotations and citation 27 omitted). 28 16 1 Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from 2 engaging in protected speech and assembling in person for the purpose of worship while 3 other gatherings promoting non-religious speech were permissible. (FAC ¶¶ 42-45, 73- 4 76.) Taking those allegations as true, Plaintiff has plausibly alleged claims for violations 5 of the First Amendment’s freedom of speech and freedom of assembly clauses. 6 Accordingly, the County Defendants’ motion to dismiss the third and fourth causes of 7 action is DENIED. 8 vi. Fourteenth Amendment Due Process 9 Plaintiff’s fifth cause of action alleges a violation of their substantive due process 10 rights under the Fourteenth Amendment. (FAC ¶¶ 89-94.) The County Defendants 11 contend the State and County’s Orders provided justification for the emergency restrictions 12 in light of the “emerging, once-in-a-lifetime pandemic” such that Plaintiff fails to state a 13 claim for relief. (Doc. 22-1 at 31.) 14 The Fourteenth Amendment forbids the government from depriving a person of life, 15 liberty, or property in such a way that “shocks the conscience or interferes with the rights 16 implicit in the concept of ordered liberty.” Nunez v. City of Los Angeles, 147 F.3d 867, 17 871 (9th Cir. 1998). “Where a particular Amendment ‘provides an explicit textual source 18 of constitutional protection’ against a particular sort of government behavior, ‘that 19 Amendment, not the more generalized notice of ‘substantive due process,’ must be the 20 guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting 21 Graham v. Connor, 490 U.S. 386, 395 (1989)). 22 Here, Plaintiff’s challenge to the County Orders lies within the First Amendment’s 23 Free Exercise Clause, and the County Defendants do not seek to dismiss that claim. 24 Because the Free Exercise Clause “provides an explicit textual source of constitutional 25 protection” against the type of conduct challenged by Plaintiff, that clause preempts 26 Plaintiff’s substantive due process claim. Patel v. Penman, 103 F.3d 868, 874-875 (9th 27 Cir. 1996) (citations, internal quotation marks, and brackets omitted), overruled in part on 28 17 1 other grounds as recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2 2007). Accordingly, the County Defendants’ motion to dismiss the fifth cause of action is 4 vii. Equal Protection 5 Plaintiff’s sixth cause of action is premised upon a violation of the Fourteenth 6 Amendment’s Equal Protection Clause and the County Defendant’s alleged intentional and 7 arbitrary categorization of conduct as either “essential” or “non-essential.” (FAC ¶¶ 95- 8 102.) Plaintiff alleges the targeting of religious services warrants “heightened review” and 9 Plaintiff has alleged facts sufficient to support its claim. (Doc. 25 at 16.) 10 “The Equal Protection Clause of the Fourteenth Amendment commands that no state 11 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 12 essentially a direction that all persons similarly situated should be treated alike.” City of 13 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (internal citation omitted). An 14 equal protection claim may be established in two ways. The plaintiff may claim the 15 defendant intentionally discriminated against him or her based upon membership in a 16 protected class, which triggers strict scrutiny review of the subject law, rule, or policy. 17 George v. Grossmont Cuyamaca Cmty. Coll. Dist. Bd. of Governors, No. 22-CV-0424- 18 BAS-DDL, 2022 WL 16722357, at *10 (S.D. Cal. Nov. 4, 2022) (citing Lee v. City of L.A., 19 250 F.3d 668, 686 (9th Cir. 2001); Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th 20 Cir. 2005); Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 307–08, 133 S.Ct. 2411, 186 21 L.Ed.2d 474 (2013)). Second, the plaintiff “may claim membership of a non-suspect 22 group” that the defendant “treated differently than similarly situated individuals, without 23 any rational basis or legitimate government purpose for doing so.” Id. (citing Vill. of 24 Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); San 25 Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 93, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). 26 Plaintiff contends its religious services exempted from gatherings were treated 27 differently than other public gatherings. (FAC ¶¶ 17, 44-45.) The FAC states, “other 28 18 1 public gatherings were not faced with the same threat of criminal penalties nor inhibited 2 by the same arguments justifying the closure of the houses of worship.” (Id. at ¶ 44.) For 3 example, “on April 10, 2020, Defendant San Diego County endorsed and promoted various 4 mass gatherings for the purpose of paying tribute to regional first responders and medical 5 workers.” (Id.) On the other hand, “[t]he Church did not hold communal worship service 6 on April 12, 2020.” (Id. at ¶ 45.) Plaintiff contends Defendants “intentionally and 7 arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’” (Id. 8 at ¶ 99.) At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for 9 violation of the Equal Protection clause. Therefore, the County Defendants’ motion to 10 dismiss the sixth cause of action is DENIED. 11 vii. Leave to Amend 12 Neither the County Defendants nor Plaintiff address whether leave to amend should 13 be granted. 14 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend 15 even if no request to amend the pleading was made, unless it determines that the pleading 16 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. 17 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). When 18 determining whether to grant leave to amend, courts generally consider five factors, known 19 as the Foman factors as stated by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182 20 (1962). These factors include: (1) undue delay; (2) bad faith on the part of the party seeking 21 leave to amend; (3) undue prejudice to the non-moving party; (4) futility of amendment; 22 and (5) whether the plaintiff has previously amended the complaint. Id. The Ninth Circuit 23 has held that “it is the consideration of prejudice to the opposing party that carries the 24 greatest weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 25 2003). “Absent prejudice, or a strong showing of any of the remaining Foman factors, 26 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. 27 (emphasis omitted). In Parents for Privacy v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020), 28 19 1 ||the Ninth Circuit affirmed a district court’s denial of leave to amend on futility grounds 2 || reasoning “[t]he problem with Plaintiffs’ complaint, however, is not the sufficiency of their 3 || factual allegations” but “[rJather .. . Plaintiffs’ legal theories fail.” /d. There, “[a]mending 4 complaint [would] not change, for example, the extent of the rights that are protected.” 5 6 The parties have been litigating this COVID-19-related dispute since April 9, 2020. 7 || See Abiding Place Ministries v. Wooten et al., Case No. 3:20-cv-00683-BAS-AHG, Doc. 8 || 1. As noted above, this case is a revival of an earlier filed case filed in this District, where 9 || Plaintiff had the opportunity to amend its complaint three times and eventually voluntarily 10 || dismissed the case without prejudice. /d. at Docs. 1, 22, 60. In the instant case, Plaintiff 11 also had the opportunity to amend its complaint. (See Docs. 1, 13.) In light of the 12 || Court’s rulings on the County and State Defendants’ motions to dismiss granting dismissal 13 the individual defendants on qualified immunity grounds, it appears any further 14 |}amendment would be futile at this juncture. While there has been no showing of bad faith 15 undue prejudice, weighing the remaining Foman factors, the Court declines to grant 16 || further leave to amend. 18 For the foregoing reasons, County Defendants’ motion to dismiss for failure to state 19 claim upon which relief can be granted is GRANTED IN PART and DENIED IN 20 || PART. Plaintiffs first, second, third, fourth, and sixth causes of action survive as against 21 || the County. 23 || DATE: February 14, 2023 24 _ ee errr, (Altes D_ 5 HON-RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 26 27 28 20 3:21-cv-00518-RBM-DDL