Best Supplement Guide, LLC v. Newsom

• Court: District Court, E.D. California
• Decided: May 22, 2020
• Docket: 2:20-cv-00965
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BEST SUPPLEMENT GUIDE, LLC; No. 2:20-cv-00965-JAM-CKD SEAN COVELL, an individual, 12 Plaintiffs, 13 ORDER DENYING PLAINTIFFS’ EX v. PARTE APPLICATION AND MOTION FOR 14 EMERGENCY TEMPORARY RESTRAINING GAVIN NEWSOM, et al., ORDER AND FOR ORDER TO SHOW 15 CAUSE WHY PRELIMINARY INJUNCTION Defendants. SHOULD NOT ISSUE. 16

17 Best Supplement Guide LLC is a California limited liability 18 corporation that conducts business under the trade name “Fitness 19 System.” Compl. ¶ 17, ECF No. 1. Fitness System operates three 20 membership-based gyms, including one in Lodi, California. Compl. 21 ¶ 50. Sean Covell organized and registered Fitness System within 22 the State of California. Compl. ¶ 20. He is the director, 23 manager, and president of the corporation. Id. In March 2020, 24 Governor Newsom and San Joaquin County enacted “stay at home” 25 orders to help counteract the rapid spread of COVID-19. Compl. 26 ¶¶ 68-74. The State and County Orders required Plaintiffs to 27 close Fitness System’s Lodi facility against their wishes. 28 1 Compl. ¶ 95. The gym remains closed. 2 In response, Plaintiffs brought this civil rights action 3 against various state and local officials, challenging the 4 validity and enforcement of both stay at home orders. Shortly 5 thereafter, Plaintiffs filed an ex parte application to 6 temporarily enjoin enforcement of the State and County Orders.1 7 Mot. for TRO (“TRO”), ECF No. 3. The State and Local Defendants 8 oppose the motion. See State Defs.’ Opp’n to Plfs.’ Ex parte 9 App. (“State Opp’n”), ECF No. 9; County and City Defs.’ Opp’n to 10 Plfs.’ Ex parte App. (“Local Opp’n”), ECF No. 10. For the 11 reasons discussed below, the Court denies Plaintiffs’ request for 12 a temporary restraining order and for an order to show cause why 13 a preliminary injunction should not issue. 14 15 I. BACKGROUND 16 In December 2019, a novel coronavirus known as COVID-19 17 began spreading across the globe. Compl. ¶ 61. The virus 18 quickly traveled from one country to the next, and by late 19 January 2020, the United States Secretary of Health and Human 20 Services declared a public health emergency. Compl. ¶¶ 61-62. 21 COVID-19 eventually reached California and began infecting people 22 within its communities. Compl. ¶¶ 63-65. In an effort to 23 prevent widespread infection, Governor Newsom declared a state of 24 emergency and issued Executive Order N-33-20. Compl. ¶¶ 63, 68. 25 The order directed California residents to “stay home or at their 26

27 1 The Court determined Plaintiffs’ ex parte application was suitable for decision without oral argument. E.D. Cal. L.R. 28 230(g). 1 place of residence except as needed to maintain continuity of 2 operations of the federal critical infrastructure services.” 3 Compl. ¶ 69; see also Ex. G to TRO, ECF No. 3-1. Governor Newsom 4 reserved authority to “designate additional sectors as critical 5 [to] protect the health and well-being of all Californians.” Ex. 6 G to TRO. 7 On March 20, San Joaquin County followed suit. Compl. ¶ 74. 8 It issued a stay at home order directing “all individuals living 9 in the County to stay . . . at their place of residence 10 except . . . to provide or receive certain essential services or 11 engage in certain activities.” Ex. J to TRO, ECF No. 3-1. The 12 County Order’s intent was to help implement the State stay at 13 home order and slow the spread of COVID-19. Id. 14 As COVID-19 continued to spread, Governor Newsom and County 15 officials issued amendments containing increasingly stringent 16 restrictions. Compl. ¶¶ 76-85. Specifically, an April 14 17 amendment to the County’s stay at home order required all gyms to 18 close. Compl. ¶ 85. In the April 14 amendment, the County again 19 maintained it was implementing the State Order. Compl. ¶ 80. 20 In late April, Plaintiffs announced they would reopen 21 Fitness System’s Lodi facility notwithstanding the County Order. 22 Compl. ¶ 100. San Joaquin County and the City of Lodi learned of 23 Plaintiffs’ plans to reopen. Compl. ¶¶ 102-103. On April 30, 24 three Lodi Police Officers arrived at the Lodi gym with a letter 25 from County Counsel. Compl. ¶¶ 103-104, 111. The officers 26 informed Covell that reopening the gym would result in civil, 27 administrative, and criminal penalties. Compl. ¶¶ 106-110. 28 /// 1 II. OPINION 2 A. Judicial Notice 3 District courts may take judicial notice of “a fact that is 4 not subject to reasonable dispute because it: (1) is generally 5 known within the trial court’s territorial jurisdiction; or (2) 6 can be accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 8 Consequently, a court may take judicial notice “of court filings 9 and other matters of public record,” Reyn’s Pasta Bella, LLC v. 10 Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006), including 11 “government documents available from reliable sources on the 12 internet,” California River Watch v. City of Vacaville, No. 13 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 (E.D. Cal. 14 Sept. 1, 2017). 15 Plaintiffs and the Local Defendants request the Court take 16 judicial notice of various documents issued by the federal 17 government, the State of California, San Joaquin County, and the 18 City of Lodi. See TRO at 11-13; Local Defs.’ RJN, ECF No. 11. 19 Moreover, the State Defendants request the Court judicially 20 notice “a series of order[s] and directives of the Governor and 21 Public Health Officer” that make up the State’s stay at home 22 order. State Defs.’ RJN, ECF No 9-3. Finding these government 23 documents to be proper subjects of judicial notice, the Court 24 grants the parties’ requests. 25 B. Legal Standard 26 Parties seeking a temporary restraining order must 27 establish (1) they are likely to succeed on the merits; (2) they 28 are likely to suffer irreparable harm absent preliminary relief; 1 (3) the balance of equities tips in their favor, and (4) an 2 injunction is in the public interest. Winter v. Nat. Res. Def. 3 Council, Inc., 555 U.S. 7, 20 (2008); see also Stuhlbarg Intern 4 Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 5 839 n.7 (9th Cir. 2001). In the Ninth Circuit, courts may also 6 issue temporary restraining orders when there are “serious 7 questions going to the merits” and a “balance of hardships that 8 tips sharply towards the plaintiff” so long as the remaining two 9 Winter factors are present. Alliance for Wild Rockies v. 10 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). When applying 11 either test, courts operate with the understanding that a 12 temporary restraining order, much like a preliminary injunction, 13 is an “extraordinary and drastic remedy.” Cf. Munaf v. Geren, 14 553 U.S. 674, 690 (2008). “The propriety of a temporary 15 restraining order, in particular, hinges on a significant threat 16 of irreparable injury [] that must be imminent in nature.” Gish, 17 No. EDCV 20-755-JGB(KKx), 2020 WL 1979970, at *3 (April 23, 18 2020) (citing Simula, Inc. v. Autoliv, Inc., 175 F.3d. 716, 725 19 (9th Cir. 1999); Caribbean Marine Serv. Co. v. Baldridge, 844 20 F.2d 668, 674 (9th Cir. 1988)). 21 C. Analysis 22 Arguing they satisfy each of the four Winter factors, 23 Plaintiffs request the Court temporarily enjoin enforcement of 24 the State and County orders so Fitness System may reopen its 25 Lodi facility. TRO at 13-27. But the Court finds Plaintiffs 26 have not shown they are likely to succeed on the merits of any 27 of the claims discussed in their motion. Nor have they raised 28 serious questions going to the merits of these claims. 1 Emergency relief is therefore improper. 2 1. Likelihood of Success on the Merits / Serious 3 Questions going to the Merits 4 This Court, alongside many others, has adopted the standard 5 set forth in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 6 11, 31 (1905) to assess the constitutionality of a state or 7 local official’s exercise of emergency police powers. See 8 Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD, 2020 WL 2307224, at 9 *3 (E.D. Cal. May 8, 2020); Cross Culture Christian Center. v. 10 Newsom, -- F. Supp. 3d --, No. 2:20-cv-00832-JAM-CKD, 2020 WL 11 2121111, at *4 (E.D. Cal. May 5, 2020); see also Calvary Chapel 12 of Bangor v. Mills, --F. Supp. 3d --, No. 1:20-cv-00156-NT, 2020 13 WL 2310913, at *7 (D. ME May 9, 2020); SH3 Health Consulting, 14 LLC v. Page, No. 4:20-cv-605-SRC, 2020 WL 2308444, at *6 (E.D. 15 Mo. May 8, 2020); Gish v. Newsom, No. 5:20-cv-00755-JGB(KKx), 16 2020 WL 1979970, at *5 (C.D. Cal. April 23, 2020). Accordingly, 17 this court must uphold the gym closures required by the State 18 and County stay at home orders unless (1) there is no real or 19 substantial relation to public health, or (2) the measure is 20 “beyond all question” a “plain [and] palpable” invasion of 21 rights secured by the fundamental law. Cross Culture Christian 22 Ctr., 2020 WL 2121111, at *5 (quoting Jacobson, 197 U.S. at 30). 23 a. Real and Substantial Relation to Public 24 Health 25 The Court first finds that the State and County gym 26 closures bear a real and substantial relation to public health. 27 In reaching this conclusion, the Court disagrees with 28 Plaintiffs’ contention that the State and County orders are 1 simply too far reaching to bear a substantial relation to public 2 health. See Reply at 10-12, ECF No. 16. COVID-19 is extremely 3 infectious. State Opp’n at 10. It can “easily spread through 4 droplets generated when an infected person coughs or sneezes, or 5 through droplets of saliva or discharge from the nose.” Park 6 Decl. ¶ 6, ECF No. 10-1. “These droplets can [] live on skin 7 as well as objects,” allowing the virus to spread “when there is 8 contact between people” or “when a person touches contaminated 9 objects.” Id. This undisputed information about COVID-19 and 10 its transmission logically explains why State and County 11 officials found that temporary gym closures were, and continue 12 to be, a critical step in slowing the virus’s spread. Workout 13 facilities often contain high density groups, congregating and 14 exercising in closed areas at the same time, breathing heavily, 15 and sharing gym equipment. Park Decl. ¶ 21. “And unlike 16 grocery stores . . . many gym members return to [their gyms] 17 multiple times per week as part of a fitness routine.” Id. 18 Plaintiffs’ reply brief highlights the “miniscule” COVID-19 19 infection, hospitalization, and death rates in California and 20 San Joaquin County. Reply at 2-4. Presumably, these statistics 21 are designed to showcase a disproportionality between the 22 drastic economic impact of the State and County orders and the 23 danger COVID-19 poses. To the extent that this was Plaintiffs’ 24 objective, their data points—stripped of any context—fall short 25 of reaching their goal. Plaintiffs wholly fail to grapple with 26 the possibility that the health of their neighbors is a symptom 27 of the stay at home orders, rather than evidence that the 28 restrictions aren’t needed. 1 Just like the current restrictions on in-person church 2 services and in-person protests, the gym closures required by 3 the State and County orders plainly bear a real and substantial 4 relation to public health. See Givens, 2020 WL 2307224, at *4; 5 Cross Culture Christian Ctr., 2020 WL 2121111, at *4. 6 b. Plain and Palpable Invasion of Fundamental 7 Law 8 The State and County orders are also not “beyond all 9 question” a plain and palpable invasion of Plaintiffs’ 10 fundamental rights. Although courts have not yet defined the 11 precise contours of this standard, it plainly puts a thumb on 12 the scale in favor of upholding state and local officials’ 13 emergency public health responses. Viewing the State and County 14 orders through this lens, the Court finds the State and County 15 gym closures do not exceed the scope of remedial action 16 Jacobson, 197 U.S. at 30 allows. 17 i. Freedom of Speech, Assembly, and 18 Expressive Association2 19 The First Amendment protects individuals from undue 20 interference with their freedom of speech, assembly, and 21 expressive association. U.S. CONST., amend. I; De Jonge v. 22

23 2 In Plaintiffs’ TRO, they argue the California Constitution, like the United State Constitution, protects the expressive right 24 to speech, assembly, and association. TRO at 14 n.17 (citing Cal. Const. art. 1, § 3). Plaintiffs’ complaint, does not, 25 however, set forth a cause of action under Article 1, Section 3 of the California Constitution. The Court will not adjudicate 26 Plaintiffs likelihood of success on a claim they have not 27 alleged. This principle applies with the same force to Plaintiffs’ assertion that the California Constitution protects a 28 right to intrastate travel. See TRO at 18 n.19. 1 Oregon, 299 U.S. 353, 364 (1937). Plaintiffs argue the State 2 and County gym closures unlawfully infringe upon each of these 3 freedoms. TRO at 14-15. The Court disagrees. 4 As a preliminary matter, Plaintiffs’ motion fails to 5 explain how the State and County gym closures prohibit protected 6 speech. The First Amendment’s free speech clause only “affords 7 protection to symbolic or expressive conduct [and] actual 8 speech.” Virginia v. Black, 538 U.S. 343, 358 (2003). As 9 Defendants argue, the State and County gym closures plainly 10 restrict non-expressive conduct: operating gyms. The Court 11 lacks any authority for the proposition that operating a gym 12 implicates the First Amendment’s free speech protections. State 13 Opp’n at 12; Local Opp’n at 12; see also United State v. 14 O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view 15 that an apparently limitless variety of conduct can be labeled 16 ‘speech whenever the person engaging in the conduct intends 17 thereby to express an idea.”). Plaintiffs are therefore 18 unlikely to succeed on the merits of this claim. They also fail 19 to raise serious questions going to the claim’s merits. 20 Nor are Plaintiffs likely to succeed on the merits of the 21 freedom of assembly or freedom of association claims. Today, 22 the freedom of association and freedom of assembly are largely 23 viewed as one. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 24 (1984). Parties may only bring an expressive-association claim 25 under the First Amendment if they demonstrate that they are 26 asserting their right to associate “for the purpose of engaging 27 in those activities protected by the First Amendment—speech, 28 assembly, petition for the redress of grievances, and the 1 exercise of religion.” Id. Plaintiffs contend that “[w]hen 2 Fitness System and Covell’s staff and customers interact, they 3 engage in expressive association and the advancement of shared 4 beliefs.” TRO at 14. They do not, however, cite any cases to 5 support the idea that the freedom to associate is designed to 6 protect this type of non-expressive, commercial interaction. 7 Just like the freedom of speech, the rights conferred by the 8 freedoms of assembly and association do not guard against the 9 grievances Plaintiffs claim. 10 ii. Right to Travel 11 It is well-established that the Fourteenth Amendment’s 12 Privileges or Immunities Clause enshrines a “constitutional 13 right to travel from one State to another.” Saenz v. Roe, 526 14 U.S. 489, 498 (1999). This right “embraces at least three 15 different components”: (1) the right of a citizen of one state 16 to enter and leave another state; (2) the right to be treated 17 “as a welcome visitor” when temporarily present in another 18 state; and (3) the right for travelers who elect to become 19 residents to be treated like other residents of that state. Id. 20 at 500. But the Supreme Court has not defined or even 21 recognized a constitutional right to intrastate travel. The 22 Ninth Circuit has been similarly silent on this issue. See 23 Adams v. United States Dep’t of Agric., No. CV 08-283-TUC-RCC, 24 2010 WL 11523866, at *7 (D. Ariz. Mar. 9, 2010) (citing Nunez ex 25 rel. Nunez v. City of San Diego, 114 F.3d 946, 949 n.7 (9th Cir. 26 1994)). 27 Plaintiffs contend that although the Supreme Court has not 28 yet recognized a constitutional right to intrastate travel, it 1 “certainly [is] not dismissive of the possibility” that such a 2 right exists. Reply at 7. Plaintiffs’ argument that their 3 claim at least raises questions about the merits of an alleged 4 right to intrastate travel claim misunderstands the burden 5 Plaintiffs bear at this stage of the proceedings. To obtain the 6 preliminary relief under the Jacobson framework, Plaintiffs must 7 either show (1) they are likely to succeed on the merits of 8 their claim that the State and County gym closures are beyond 9 all question an invasion of their fundamental rights, or (2) 10 there are serious question going to the merits of whether the 11 State and County gym closures are beyond all question an 12 invasion of their fundamental rights. This Court cannot find 13 that the State and County orders violate “beyond all question” a 14 right that is not yet known to exist. Plaintiffs are unlikely to 15 succeed on this claim and have failed to raise serious questions 16 going to its merits. 17 iii. Due Process 18 The Due Process Clause contained in the Fourteenth 19 Amendment contains both a procedural and substantive component. 20 Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). 21 “Procedural due process imposes constraints on governmental 22 decisions which deprive individuals of ‘liberty’ or ‘property 23 interests within the meaning of the Due Process clause.” 24 Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “A liberty 25 interest may arise from the Constitution itself . . . or it may 26 arise from an expectation or interest created by state laws or 27 policies. Wilkinson v. Austin, 545 U.S. 209, 222 (2005) (citing 28 Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974)). Substantive 1 due process, on the other hand, “forbids the government from 2 depriving a person of life, liberty, or property in such a way 3 that . . . interferes with rights implicit in the concept of 4 ordered liberty”—regardless of what type of process is first 5 given. Engquist v. Oregon Dept. of Agric., 478 F.3d 985, 996 6 (9th Cir 2007). 7 Plaintiffs seem to argue that State and County officials 8 should have afforded them some sort of legal process prior to 9 enacting and threatening to enforce their stay at home orders. 10 TRO at 19. Without citing any supporting authority, Plaintiffs 11 contend the State and Local Defendants were under an obligation 12 to conduct individualized public health investigations before 13 enacting any measures designed to protect the public from COVID- 14 19’s spread. Id. Not so. Indeed, as the State argues, the 15 Ninth Circuit has specifically rejected the notion that the Due 16 Process Clause requires this type of pre-deprivation process 17 before enacting and enforcing laws of general applicability. 18 State Opp’n at 17-18 (citing Halverson v. Skagit County, 42 F.3d 19 1257, 1260 (9th Cir. 1994)). “[G]overnmental decisions which 20 affect law areas and are not directed at one or a few 21 individuals do not give rise to the constitutional procedural 22 due process requirements of individual notice and hearing; 23 general notice as provided by law is sufficient.” Halverson, 42 24 F.3d at 1260. Plaintiffs do not allege the current gym closures 25 are targeted at individual gym owners or particular facilities. 26 Rather, the State and County orders prohibit the operation of 27 all gyms and workout facilities within their respective 28 jurisdictions. State Opp’n at 18 (citing Ex. G to TRO). 1 Plaintiffs’ due process claims do not fare any better under 2 the Due Process Clause’s substantive component. As discussed 3 above, Plaintiffs are unlikely to show that the State and County 4 gym closures arbitrarily deprived them of their fundamental 5 rights to travel, engage in expressive association, speak, or 6 assemble. Plaintiffs’ remaining theory of substantive due 7 process liability is that the State and County orders unlawfully 8 abridge Plaintiffs’ right to pursue the occupation of their 9 choice. TRO at 18-19. To be sure, “[i]t requires no argument to 10 show that the right to work for a living in the common 11 occupations of the community is of the very essence of the 12 personal freedom and opportunity that it was the purpose of the 13 [Fourteenth] Amendment to secure.” Sagana v. Tenorio, 384 F.3d 14 731 (9th Cir. 2004) (quoting Truax v. Raich, 239 U.S. 33, 41 15 (1915)). Even so, neither the Supreme Court nor the Ninth 16 Circuit “has []ever held that the right to pursue work is a 17 fundamental right,” entitled to heightened constitutional 18 scrutiny. Id. at 743. 19 The judicial review that applies to laws infringing on 20 nonfundamental rights is “a very narrow one.” Id. The Court 21 need only ask “whether the government could have had a 22 legitimate reason for acting as it did.” Id. (emphasis in 23 original). The Court finds that the State and County orders, 24 albeit burdensome, were enacted for a legitimate reason. As 25 this Court has previously explained, COVID-19 is a highly 26 infectious, and sometimes deadly, virus that is often spread by 27 people who do not even know they have it. There’s no cure or 28 vaccine, and its long-term effects are still largely unknown. 1 But health experts do know this: limiting physical contact 2 between people is the most effective way to stop COVID-19’s 3 spread. Park Decl. ¶¶ 6-8. Given these uncontroverted facts, 4 elected officials at the state and county level enacted stay at 5 home orders, codifying this best practice into law. The Court 6 finds this to be a legitimate reason for temporarily restricting 7 Plaintiffs’ right to pursue the occupations of their choice. 8 iv. Equal Protection 9 As both parties agree, the Equal Protection Clause 10 prohibits the government from drawing “arbitrary distinctions 11 between individuals based solely on differences that are 12 irrelevant to a legitimate governmental objection.” TRO at 20 13 (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 14 432, 446 (1985)); Local Opp’n at 15 (same). The parties, 15 however, disagree about what degree of constitutional scrutiny 16 applies to the State and Local orders. Equal protection claims 17 only garner strict scrutiny when a law “disadvantages a suspect 18 class or impinges upon a fundamental right.” Maynard v. U.S. 19 Dist. Court for the Cent. Dist. Of Calif., 701 F. Supp. 738, 742 20 (1988). As previously explained, the State and County orders do 21 not impinge upon Plaintiffs fundamental rights. Nor do they 22 discriminate on the basis of any suspect classification. As a 23 result, the orders need only survive rational basis review. 24 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). 25 When a law regulates different classifications of conduct 26 differently, rational basis review requires that there be “a 27 plausible policy reason for the classification” and that “the 28 relationship of the classification to its goal is not so 1 attenuated as to render the distinction arbitrary or 2 irrational.” Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 3 1075, 1085 (9th Cir. 2015) (quoting Nordlinger v. Hahn, 505 U.S. 4 1, 11 (1992)). Plaintiffs argue it is arbitrary to keep gyms 5 closed when they are equally as capable of complying with the 6 CDC’s social distancing guidelines as businesses that have been 7 allowed to reopen. But State and County public health experts 8 disagree with this premise. Dr. Park’s declaration, in 9 particular, identifies several reasons why the challenges posed 10 by reopening gyms differ, both in kind and in scale, from those 11 that arise when reopening other businesses. Park Decl. ¶¶ 20- 12 26. These reasons persuade the Court that State and County’s 13 continued gym closures bear a rational relationship to public 14 health. 15 c. Right to Liberty 16 Finally, Plaintiffs contend that the State and County stay 17 at home orders violate their right to liberty under Article I, 18 Section 1 of the California Constitution. As an initial matter, 19 Plaintiffs’ state constitutional claim against state officials 20 in their official capacity is barred by the Eleventh Amendment. 21 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 22 (1984) (finding the Ex parte Young, 209 U.S. 123 (1908) and 23 Edelman v. Jordan, 415 U.S. 651 (1974) exceptions to Eleventh 24 Amendment immunity inapplicable in a suit against state 25 officials on the basis of state law). Plaintiffs can neither 26 succeed nor proceed on this claim against the State. 27 Plaintiffs argue they are nonetheless likely to succeed on 28 their Article 1, Section 1 claim against the Local Defendants 1 because public health officials may not exercise their 2 quarantine powers absent “reasonable grounds [] to support the 3 belief that the person so held is infected.” TRO at 22 (quoting 4 Ex Parte Martin, 83 Cal. App. 2d 164, 167 (1948)). Plaintiffs 5 also cite Jew Ho v. Williamson, 103 F.10 (C.C.D. Cal. 1900), 6 where the California court found that sealing off an entire 7 section of San Francisco to prevent the spread of the bubonic 8 plague was “unreasonable, unjust, and oppressive.” Id. at 26. 9 Both cases Plaintiffs rely upon are easily distinguishable 10 and of little precedential value to this Court. Ex Parte Martin 11 involved the quarantine of two individuals in jail after passing 12 through a place of prostitution, and Jew Ho involved a racially- 13 motivated and scientifically-unfounded quarantine of San 14 Francisco’s Chinatown. See Ex Parte Martin, 83 Cal. App. 2d at 15 166; Jew Ho, 103 F.10 at 23, 26. These cases are clearly 16 inapposite. Requiring public health officials in the current 17 pandemic to “identify specific individuals who carry the virus 18 and order only them to stay home would not be feasible.” State 19 Opp’n at 22. That would require far more aggressive testing and 20 contact-tracing, neither of which the State, at present, has the 21 capacity to do. Id. It also ignores the fact that many people 22 who are infected with COVID-19, and contributing to its spread, 23 are completely asymptomatic. Id. 24 The Court is under no illusion that compliance with the 25 State and County stay at home orders is easy or not causing 26 economic hardships. The changes to daily life caused by the 27 restrictions these orders impose range from uncomfortable to 28 crippling, depending on each person’s circumstances. But 1 neither the County order, generally, nor its gym closures, 2 specifically, amount to “virtual imprisonment” such that it 3 violates Plaintiffs’ right to liberty under the cases Plaintiffs 4 cite. See TRO at 22 (quoting Ex parte Arta, 52 Cal. App. 380, 5 383 (1921)). Plaintiffs are unlikely to succeed on this claim 6 and do not raise serious questions going to its merits. 7 2. Remaining Factors 8 A district court may not grant a plaintiff’s motion for a 9 temporary restraining order if the request fails to show the 10 plaintiff is likely to succeed on the merits of a claim or, at 11 least, raises serious questions going to the merits of that 12 claim. See Winter, 555 U.S. at 20; Alliance for Wild Rockies, 13 632 F.3d at 1135. Plaintiffs here did not make either showing. 14 The Court need not consider the remaining factors in denying 15 their request. Cross Culture Christian Ctr., 2020 WL 2121111, at 16 *8. 17 D. Conclusion 18 The restrictions imposed by the State and County orders are 19 exacting. But they are also temporary, rooted in science, and 20 proportional to the threat COVID-19 poses. It bears repeating: 21 these restrictions are temporary. Governor Newsom and County 22 officials have made it clear gyms and other similarly-situated 23 venues will reopen as soon as it is safe. Relying upon 24 scientifically-backed opinions of their public health experts, 25 these officials have concluded it is not safe to reopen yet. 26 This conclusion reflects these elected officials’ best efforts 27 to balance the interests in promoting public health with those 28 in ensuring economic stability. MAIS 2 LUV YUE SOV EAINIT NS INEZ RAVI ONO eee TP Yt AU I AO

1 For the third time in less than a month, this Court finds 2 the State and County orders, as is and as currently applied, are 3 a constitutional response to an unprecedented pandemic. 4 Plaintiffs continued compliance with these orders are essential 5 to the well being of the general public. The continued 6 | performance of this critical civic duty (i.e. remaining 7 temporarily closed) will help prevent the spread of COVID-19 and 8 save lives. For this, plaintiffs and all gym owners similarly 9 Situated are to be commended. 10 11 IIl. ORDER 12 For the reasons set forth above, the Court DENIES 13 Plaintiffs’ ex parte application for a temporary restraining 14 order. The Court also DENIES Plaintiffs’ request for an order to 15 show cause why a preliminary injunction should not issue. 16 | Plaintiffs failed to show a likelihood of success on their claims 17 or raise serious questions going to the merits of those claims. 18 | Absent newly-discovered facts or a change in intervening caselaw, 19 Plaintiff’s failure to make this showing would likewise preclude 20 the Court from granting a motion for preliminary injunction. 21 IT IS SO ORDERED. 22 Dated: May 22, 2020 23 he Me 24 teiren staves odermacr 7008 25 26 27 28 18