NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BEST SUPPLEMENT GUIDE, LLC; SEAN No. 20-17362 COVELL, D.C. No. Plaintiffs-Appellants, 2:20-cv-00965-JAM-CKD
v. MEMORANDUM* GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA Y. ANGELL, MD, MPH, in her official capacity as the Director and State Public Health; COUNTY OF SAN JOAQUIN; CITY OF LODI; MAGGIE PARK, MD., in her official capacity as the Public Health Officer of San Joaquin County,
Defendants-Appellees,
and
KATHERINE MILLER, in her official capacity as a member of, and the Chair of the San Joaquin County Board of Supervisors; TOM PATTI, in his official capacity as a member of, and as Vice Chair of, the San Joaquin County of Board of Supervisors; MIGUEL VILLAPUDUA, in his official capacity as a member of the San Joaquin
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. County Board of Supervisors; CHUCK WINN, in his official capacity as a member of the San Joaquin County Board of Supervisors; BOB ELLIOTT, in his official capacity as a member of the San Joaquin County Board of Supervisors; SHELLIE LIMA, in her official capacity as the San Joaquin County Director of Emergency Services; PATRICK WITHROW, in his official capacity as the Sheriff of San Joaquin County; DOUG KUEHNE, in his official capacity as a member of the Lodi City Council and Mayor of Lodi; ALAN NAKANISHI, in his official capacity as a member of the Lodi City Council and Mayor Pro Tempore of Lodi; MARK CHANDLER, in his official capacity as a member of the Lodi City Council; JOANNE MOUNCE, in her official capacity as a member of the Lodi City Council; SIERRA VRUCIA, in his official capacity as the Chief of the City of Lodi Police Department; SIERRA BRUCIA; MARCIA CUNNINGHAM,
Defendants.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted December 10, 2021 Pasadena, California Submission deferred December 13, 2021 Resubmitted June 15, 2022
Before: M. SMITH, LEE, and FORREST, Circuit Judges.
Plaintiffs operate a membership-based gym in San Joaquin County,
2 California. Due to state and local public health orders, the gym was required to shut
down for several months during the COVID-19 pandemic. Plaintiffs brought this
lawsuit against a variety of state, city, and county officials, alleging both federal and
state law claims. Because the parties are familiar with the facts, we do not recount
them here, except as necessary to provide context to our ruling. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm the district court’s order dismissing this
case against the city and county defendants. We dismiss the appeal against the state
defendants as moot.
We stayed this case pending our en banc court’s decision in Brach v. Newsom,
No. 20-56291, 2022 WL 2145391 (9th Cir. June 15, 2022). Because Plaintiffs’
request for declaratory and injunctive relief depends on “the mere possibility that
California might again” shut down businesses, all claims against the state defendants
are now moot. Id. at *2. Because Plaintiffs seek damages against the city and county
defendants, however, those claims are not moot. See Porter v. Jones, 319 F.3d 483,
488–89 (9th Cir. 2003) (finding the plaintiff’s claims for damages, including those
brought under the California Constitution, were not moot because they represented
a “live controversy . . . between the parties.”).
Plaintiffs fail to state a First Amendment freedom of speech claim. The public
health orders restricted conduct that only incidentally burdened speech. See Virginia
v. Hicks, 539 U.S. 113, 123–24 (2003). Plaintiffs also fail to state a freedom of
3 association claim. Similar to the dance hall patrons in City of Dallas v. Stanglin, the
gym members here are not an organized group gathering to “take positions on public
questions.” 490 U.S. 19, 24–25 (1989) (quoting Bd. of Dirs. of Rotary Int’l v. Rotary
Club of Duarte, 481 U.S. 537, 548 (1987)).
Plaintiffs’ Fifth Amendment Takings Clause claim also fails. To determine
whether an act constitutes a regulatory taking, courts consider several factors
including (1) “[t]he economic impact of the regulation on the claimant,” (2) “the
extent to which the regulation has interfered with distinct investment-backed
expectations,” and (3) “the character of the governmental action.” Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The second and third
factors cut strongly against finding the public health orders were a regulatory taking.
Plaintiffs’ gym was shut down for about five months with an additional eleven
months of restrictions, and the public health orders “adjust[ed] the benefits and
burdens of economic life to promote the common good.” Id.; see also Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 319–20, 342–43
(2002). Likewise, Plaintiffs cannot state a Takings Clause claim under the California
Constitution. See Bottini v. City of San Diego, 238 Cal. Rptr. 3d 260, 283 (Cal. Ct.
App. 2018) (holding that the Penn Central test applies to regulatory takings claims
under the California Constitution).
Neither the Supreme Court nor the Ninth Circuit recognizes the right to
4 intrastate travel, so the district court did not err in dismissing Plaintiffs’ Fourteenth
Amendment right to travel claim. See, e.g., Nunez by Nunez v. City of San Diego,
114 F.3d 935, 944 n.7 (9th Cir. 1997).
Plaintiffs have not stated a Fourteenth Amendment procedural or substantive
due process claim. Even assuming Plaintiffs had adequately alleged a deprivation
of a protected interest, the public health orders fall under a well-recognized category
of governmental actions that satisfy procedural due process. See Halverson v. Skagit
Cnty., 42 F.3d 1257, 1260–61 (9th Cir. 1994) (“[G]overnmental decisions which
affect large areas and are not directed at one or a few individuals do not give rise to
the constitutional procedural due process requirements of individual notice and
hearing.”). As for their substantive due process claim, Plaintiffs have not adequately
alleged any fundamental interest. See Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir.
2018). Thus, rational basis applies to Plaintiffs’ right to property and occupation
claims, but they have not shown that the public health orders are “clearly arbitrary
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BEST SUPPLEMENT GUIDE, LLC; SEAN No. 20-17362 COVELL, D.C. No. Plaintiffs-Appellants, 2:20-cv-00965-JAM-CKD
v. MEMORANDUM* GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA Y. ANGELL, MD, MPH, in her official capacity as the Director and State Public Health; COUNTY OF SAN JOAQUIN; CITY OF LODI; MAGGIE PARK, MD., in her official capacity as the Public Health Officer of San Joaquin County,
Defendants-Appellees,
and
KATHERINE MILLER, in her official capacity as a member of, and the Chair of the San Joaquin County Board of Supervisors; TOM PATTI, in his official capacity as a member of, and as Vice Chair of, the San Joaquin County of Board of Supervisors; MIGUEL VILLAPUDUA, in his official capacity as a member of the San Joaquin
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. County Board of Supervisors; CHUCK WINN, in his official capacity as a member of the San Joaquin County Board of Supervisors; BOB ELLIOTT, in his official capacity as a member of the San Joaquin County Board of Supervisors; SHELLIE LIMA, in her official capacity as the San Joaquin County Director of Emergency Services; PATRICK WITHROW, in his official capacity as the Sheriff of San Joaquin County; DOUG KUEHNE, in his official capacity as a member of the Lodi City Council and Mayor of Lodi; ALAN NAKANISHI, in his official capacity as a member of the Lodi City Council and Mayor Pro Tempore of Lodi; MARK CHANDLER, in his official capacity as a member of the Lodi City Council; JOANNE MOUNCE, in her official capacity as a member of the Lodi City Council; SIERRA VRUCIA, in his official capacity as the Chief of the City of Lodi Police Department; SIERRA BRUCIA; MARCIA CUNNINGHAM,
Defendants.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted December 10, 2021 Pasadena, California Submission deferred December 13, 2021 Resubmitted June 15, 2022
Before: M. SMITH, LEE, and FORREST, Circuit Judges.
Plaintiffs operate a membership-based gym in San Joaquin County,
2 California. Due to state and local public health orders, the gym was required to shut
down for several months during the COVID-19 pandemic. Plaintiffs brought this
lawsuit against a variety of state, city, and county officials, alleging both federal and
state law claims. Because the parties are familiar with the facts, we do not recount
them here, except as necessary to provide context to our ruling. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm the district court’s order dismissing this
case against the city and county defendants. We dismiss the appeal against the state
defendants as moot.
We stayed this case pending our en banc court’s decision in Brach v. Newsom,
No. 20-56291, 2022 WL 2145391 (9th Cir. June 15, 2022). Because Plaintiffs’
request for declaratory and injunctive relief depends on “the mere possibility that
California might again” shut down businesses, all claims against the state defendants
are now moot. Id. at *2. Because Plaintiffs seek damages against the city and county
defendants, however, those claims are not moot. See Porter v. Jones, 319 F.3d 483,
488–89 (9th Cir. 2003) (finding the plaintiff’s claims for damages, including those
brought under the California Constitution, were not moot because they represented
a “live controversy . . . between the parties.”).
Plaintiffs fail to state a First Amendment freedom of speech claim. The public
health orders restricted conduct that only incidentally burdened speech. See Virginia
v. Hicks, 539 U.S. 113, 123–24 (2003). Plaintiffs also fail to state a freedom of
3 association claim. Similar to the dance hall patrons in City of Dallas v. Stanglin, the
gym members here are not an organized group gathering to “take positions on public
questions.” 490 U.S. 19, 24–25 (1989) (quoting Bd. of Dirs. of Rotary Int’l v. Rotary
Club of Duarte, 481 U.S. 537, 548 (1987)).
Plaintiffs’ Fifth Amendment Takings Clause claim also fails. To determine
whether an act constitutes a regulatory taking, courts consider several factors
including (1) “[t]he economic impact of the regulation on the claimant,” (2) “the
extent to which the regulation has interfered with distinct investment-backed
expectations,” and (3) “the character of the governmental action.” Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The second and third
factors cut strongly against finding the public health orders were a regulatory taking.
Plaintiffs’ gym was shut down for about five months with an additional eleven
months of restrictions, and the public health orders “adjust[ed] the benefits and
burdens of economic life to promote the common good.” Id.; see also Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 319–20, 342–43
(2002). Likewise, Plaintiffs cannot state a Takings Clause claim under the California
Constitution. See Bottini v. City of San Diego, 238 Cal. Rptr. 3d 260, 283 (Cal. Ct.
App. 2018) (holding that the Penn Central test applies to regulatory takings claims
under the California Constitution).
Neither the Supreme Court nor the Ninth Circuit recognizes the right to
4 intrastate travel, so the district court did not err in dismissing Plaintiffs’ Fourteenth
Amendment right to travel claim. See, e.g., Nunez by Nunez v. City of San Diego,
114 F.3d 935, 944 n.7 (9th Cir. 1997).
Plaintiffs have not stated a Fourteenth Amendment procedural or substantive
due process claim. Even assuming Plaintiffs had adequately alleged a deprivation
of a protected interest, the public health orders fall under a well-recognized category
of governmental actions that satisfy procedural due process. See Halverson v. Skagit
Cnty., 42 F.3d 1257, 1260–61 (9th Cir. 1994) (“[G]overnmental decisions which
affect large areas and are not directed at one or a few individuals do not give rise to
the constitutional procedural due process requirements of individual notice and
hearing.”). As for their substantive due process claim, Plaintiffs have not adequately
alleged any fundamental interest. See Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir.
2018). Thus, rational basis applies to Plaintiffs’ right to property and occupation
claims, but they have not shown that the public health orders are “clearly arbitrary
and unreasonable, having no substantial relation to the public health, safety, morals
or general welfare.” Slidewaters LLC v. Wash. State Dep’t of Labor and Indus., 4
F.4th 747, 758 (9th Cir. 2021) (quoting Samson v. City of Bainbridge Island, 683
F.3d 1051, 1058 (9th Cir. 2012)).
As for Plaintiffs’ equal protection claim, they have not plausibly alleged they
received discriminatory treatment as compared to a similarly situated group. See
5 Thornton v. City of St. Helens, 425 F.3d 1158, 1167–68 (9th Cir. 2005). Plaintiffs’
equal protection claim under the California Constitution similarly fails. See
Kenneally v. Med. Bd., 32 Cal. Rptr. 2d 504, 507 (Cal. Ct. App. 1994) (holding that
equal protection under the Fourteenth Amendment and the California Constitution
are “substantially equivalent and are analyzed in a similar fashion.”).
Plaintiffs fail to state a Contracts Clause claim. Even assuming that the public
health orders substantially impaired contractual relationships, Plaintiffs have not
carried their burden of proving that the orders were not “an ‘appropriate’ and
‘reasonable’ way to advance ‘a significant and legitimate public purpose.’” Sveen
v. Melin, 138 S. Ct. 1815, 1822 (2018) (quoting Energy Rsrvs. Grp., Inc. v. Kansas
Power & Light Co., 459 U.S. 400, 411–412 (1983)); see also Apartment Ass’n of
Los Angeles Cnty., Inc. v. City of Los Angeles, 10 F.4th 905, 913 (9th Cir. 2021),
cert. denied, 142 S. Ct. 1699 (2022).
Lastly, Plaintiffs cannot state a claim for a violation of their right to liberty
pursuant to article I, section 1 of the California Constitution. See Nat. Org. for
Reform of Marijuana Laws v. Gain, 161 Cal. Rptr. 181, 187 (Cal. Ct. App. 1979)
(“The guarantees of that section are not absolute and do not operate as a curtailment
on the basic power of the Legislature to enact reasonable police regulations.”).
We dismiss this appeal against the state defendants as moot and remand with
instructions for the district court to vacate its judgment and dismiss the state
6 defendants from this lawsuit. We affirm the district court’s order dismissing all
claims against the city and county defendants.
AFFIRMED IN PART, DISMISSED IN PART, AND REMANDED.