BK Salons, LLC v. Newsom

• Court: District Court, E.D. California
• Decided: August 5, 2021
• Docket: 2:21-cv-00370
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BK SALONS, LLC, a California No. 2:21-cv-00370-JAM-JDP Limited Liability Company dba 12 POMP SALON, 13 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE 14 v. 15 GAVIN NEWSOM, in his official capacity as Governor of 16 California, et al., 17 Defendants. 18 19 BK Salons, LLC (“Plaintiff”) owns and operates a hair salon 20 in Stockton, California impacted by State and Regional Public 21 Health Orders enacted to stop the spread of COVID-19. Compl. 22 ¶ 1, ECF No. 1. Plaintiff filed this Section 1983 action against 23 Gavin Newsom, Rob Bonta1, and Erica S. Pan (“Defendants”) in 24 their official capacities as Governor, Attorney General, and 25 Acting State Public Health Officer. Id. ¶¶ 6, 9-11. Plaintiff 26

27 1 Rob Bonta was appointed Attorney General of California and has been substituted for former Attorney General, Xavier Becerra, 28 pursuant to Fed. R. Civ. P. 25(d). 1 asserts five federal constitutional claims: (1) a substantive due 2 process claim under the Fifth and Fourteenth Amendments, (2) an 3 equal protection claim under the Fourteenth Amendment, (3) a 4 procedural due process claim under the Fifth and Fourteenth 5 Amendments, (4) an excessive fines / cruel and unusual punishment 6 claim under the Eighth Amendment, and (5) a freedom of assembly 7 claim under the First Amendment. Id. ¶¶ 63-119. Plaintiff seeks 8 declaratory and injunctive relief. Id. at 28. 9 Defendants move to dismiss the action.2 Mot. to Dismiss 10 (“Mot.”), ECF No. 9-2. Plaintiff filed an opposition. Opp’n, 11 ECF No. 11. Defendants replied. Reply, ECF No. 13. 12 Additionally, the parties submitted supplemental briefs on the 13 issue of mootness. See Defs.’ Supp. Brief, ECF No. 18; Pl.’s 14 Supp. Brief, ECF No. 19. 15 This Court has previously addressed several constitutional 16 challenges arising out of the COVID-19 pandemic. See Excel 17 Fitness v. Newsom, No. 2:20-cv-02153-JAM-CKD, 2021 WL 795670 18 (E.D. Cal. March 2, 2021); Givens v. Newsom, No. 2:20-cv-00852- 19 JAM-CKD (E.D. Cal. 2020); Cross Culture Christian Ctr. v. Newsom, 20 No. 2:20-cv-00832-JAM-CKD (E.D. Cal. 2020); Best Supplement 21 Guide, LLC, v. Newsom, No. 2:20-cv-00965-JAM-DKC (E.D. Cal. 22 2020). Each time, the Court has emphasized that the pandemic 23 “context matters because the Public Health Orders being 24 challenged in these lawsuits have been enacted to stop the spread 25 of COVID-19 and keep Californians safe. As such, not every harm 26

27 2 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 22, 2021. 1 flowing from these Orders can be legally cognizable, let alone 2 rise to the level of a constitutional violation.” Excel Fitness, 3 2021 WL 795670 at *1. So too here. 4 In granting Defendants’ motion to dismiss, this Court joins 5 a growing list of courts in this state that have dismissed 6 substantially identical claims challenging the same state COVID- 7 19 Orders. See e.g. Mission Fitness Center, LLC v. Newsom, 2:20- 8 cv-09824-CAS-KSx, 2021 WL 1856552 (C.D. Cal. May 10, 2021) 9 (granting motion to dismiss in challenge by gym-owners); 10 MetroFlex Oceanside LLC v. Newsom, No. 20-cv-2110-CAB-AGS, 2021 11 WL 1251225 (S.D. Cal. Apr. 5, 2021) (granting motion to dismiss 12 in challenge by gym-owners); Culinary Studios, Inc. v. Newsom, 13 No. 1:20-cv-1340-AWI, 2021 WL 427115 (E.D. Cal. Feb. 8, 2021) 14 (granting motion to dismiss in challenge by a group of 15 restaurant, gym, and other business owners). 16 I. BACKGROUND 17 In March 2020, Governor Newsom began issuing stay-at-home 18 orders to combat the spread of COVID-19. Compl. ¶¶ 4, 15-19; see 19 also Governor Newsom’s March 12, 2020 Executive Order, Ex. 3 to 20 Compl.; Governor Newsom’s March 19, 2020, Stay-at-Home Order, Ex. 21 4 to Compl; Governor Newsom’s May 4, 2020 Executive Order, Ex. 5 22 to Compl. Under these orders, Plaintiff’s salon, Pomp Salon, was 23 required to close from March to early June 2020. Compl. ¶¶ 1, 24 18, 26. In June 2020, Plaintiff was authorized to reopen and 25 operate indoors at limited capacity; however, Plaintiff incurred 26 significant costs to operate in compliance with Defendants’ 27 Orders. Id. ¶¶ 26-27. On July 13, 2020, the State once again 28 mandated the closure of salon and hair care services. Id. ¶ 27. 1 The public health orders changed again in August 2020 with 2 the enactment of the Blueprint for a Safer Economy and its color- 3 coded tier system. Id. ¶ 28. Under this tier system, salons, 4 including Plaintiff’s, were required to: (1) cease all indoor 5 salon services in the purple tier; (2) limit indoor salon 6 services capacity to 25% in the red tier; or (3) limit indoor 7 salon services to 50% in the orange and yellow tiers. Id. 8 On December 3, 2020, due to rising COVID-19 cases and 9 hospitalizations, Governor Newsom announced regional stay-at-home 10 orders. Id. ¶¶ 35-393; see also State’s December 3, 2020 11 Regional Stay at Home Order, Ex. 1 to Compl; State’s December 6, 12 2020 Supplemental Regional Order, Ex. 2 to Compl. Under these 13 orders, Plaintiff was required to close again. Compl. ¶ 40. 14 Plaintiff, however, continued to offer its salon services to the 15 public in violation of these orders. Id. ¶¶ 1, 8. As a result, 16 Plaintiff was subject to an enforcement action that made national 17 news. Id. ¶ 1 n.2. 18 On January 12, 2021, the Regional Order for the Sacramento 19 Region was lifted, and Plaintiff resumed operations. Id. ¶ 40 20 n.13. 21 II. OPINION 22 A. Request for Judicial Notice 23 Defendants request the Court take judicial notice of seven 24 exhibits: (1) the Centers for Disease Control and Prevention’s 25 (“CDC”) COVID Data Tracker and its publicly reported data as of 26

27 3 The allegations in these paragraphs address the Regional Order for the “Southern California Region,” although Pomp Salon is not 28 located in that region. See Compl. ¶¶ 35-38. 1 April 22, 2021; (2) the State’s “Tracking COVID-19 in 2 California” Dashboard and its publicly reported data as of April 3 22, 2021; (3) the CDC’s October 5, 2021, Science Brief; (4) the 4 State’s Beyond the Blueprint for a Safer Economy Memorandum; 5 (5) the State’s Blueprint for a Safer Economy Framework as of 6 April 27, 2021; (6) the State’s Blueprint for a Safer Economy 7 Activity and Business Tiers as of April 19, 2021; and (7) the 8 State Blueprint Data Chart as of April 27, 2021. See Defs.’ 9 Req. for Jud. Notice (“RJN”), ECF No. 9-1. Plaintiff challenges 10 this request. See Opp’n at 3-9. 11 After reviewing each exhibit and considering Plaintiff’s 12 arguments in opposition, the Court finds all exhibits to be 13 matters of public record and therefore proper subjects of 14 judicial notice. Accordingly, the Court GRANTS Defendants’ 15 Request for Judicial Notice. However, the Court takes judicial 16 notice only of the existence of these documents and declines to 17 take judicial notice of their substance, including any disputed 18 or irrelevant facts within them. Lee, 250 F.3d at 690; see also 19 Gish v. Newsom, No. EDCV 20-755-JGB(KKx), 2020 WL 1979970 at *2 20 (C.D. Cal. April 23, 2020) (recognizing courts judicially notice 21 only “the contents of the documents, not [the] truth of those 22 contents”). 23 B. Mootness 24 On June 15, 2021, California fully reopened its economy and 25 moved beyond the Blueprint for a Safer Economy. See Beyond the 26 Blueprint for Industry and Business Sectors Effective June 15, 27 available at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/ 28 COVID-19/Beyond-Blueprint-Framework.aspx. In light of this 1 directive, the Court ordered supplemental briefing as to whether 2 the case or some of the issues raised by the litigation were 3 moot. See Supp. Briefing Order, ECF No. 17. 4 Defendants contend the case should be dismissed as moot 5 since the “entire legal framework [] has now been dismantled 6 because COVID-19 conditions in the State have improved so 7 significantly.” Defs.’ Supp. Brief at 3. Defendants further 8 argue that neither the voluntary cessation exception to mootness 9 nor the capable of repetition yet evading review exception apply 10 here. Id. at 5-9. Plaintiff counters that the capable of 11 repetition yet evading review exception does apply and that the 12 case is not moot under the Supreme Court’s recent decision in 13 Uzuegbunam v. Preczewski, 141 S.Ct. 792 (2021). Pl.’s Supp Brief 14 at 3-8. As an initial matter, Plaintiff’s Uzuegbunam argument 15 fails because as Plaintiff concedes, it has “not asked for 16 damages in [the] Complaint.” Id. at 6. Uzuegbunam, a decision 17 concerning nominal damages, is inapposite because nominal damages 18 have not been pled here in the operative complaint. See 19 generally Compl. That Plaintiff intends to file a motion to 20 amend the complaint in light of Uzuegbunam, see Pl.’s Supp. Brief 21 at 6, does not change this analysis. 22 “A case becomes moot—and therefore no longer a ‘Case’ or 23 ‘Controversy’ for purposes of Article III—when the issues 24 presented are no longer ‘live’ or the parties lack a legally 25 cognizable interest in the outcome.” Rosebrock v. Mathis, 745 26 F.3d 963, 971 (9th Cir. 2014) (internal citations omitted). 27 However, voluntary cessation of challenged conduct does not 28 necessarily render a case moot. Id. This is because “dismissal 1 for mootness would permit a resumption of the challenged conduct 2 as soon as the case is dismissed.” Id. Courts presume that a 3 government entity is acting in good faith when it changes its 4 policy. Id. But courts “are less inclined to find mootness 5 where the new policy could be easily abandoned or altered in the 6 future.” Id. at 972 (internal citation omitted). Finally, the 7 party asserting mootness bears a “heavy burden” to show that “the 8 challenged conduct cannot reasonably be expected to reoccur.” 9 Id. at 972. 10 Here, Defendants have not met their burden to show the case 11 is moot. Defendants’ response to this unprecedented pandemic has 12 necessarily been ever-evolving. But its ever-evolving nature 13 gives the Court pause. The Delta variant is rising in California 14 in spite of the increasing number of vaccinated Californians. 15 See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID- 16 19/COVID-Variants.aspx (last accessed July 12, 2021); see also 17 Pl.’s Supp Brief at 4. It is therefore conceivable that 18 Defendants may need to reimpose restrictions. Indeed, as 19 Plaintiff emphasizes, Governor Newsom’s recent public comments 20 confirm as much. Pl.’s Supp. Brief at 4-5. For these reasons, 21 Defendants have not shown that “the challenged conduct cannot 22 reasonably be expected to reoccur.” Rosebrock, 745 F.3d at 972. 23 Because the voluntary cessation exception to mootness 24 applies4, the case is not moot. 25 /// 26

27 4 As the Court finds the voluntary cessation exception applies, it does not reach the issue of whether the capable of repetition 28 yet evading review exception also applies. 1 C. 12(b)(6) Standard 2 A Rule 12(b)(6) motion challenges the complaint as not 3 alleging sufficient facts to state a claim for relief. See Fed. 4 R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under 5 12(b)(6)], a complaint must contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on 7 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal 8 quotation marks and citation omitted). In considering a motion 9 to dismiss for failure to state a claim, the court accepts as 10 true the allegations in the complaint and construes the pleading 11 in the light most favorable to the party opposing the motion. 12 Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). 13 D. 12(b)(6) Analysis 14 As an initial matter, Plaintiff dedicates much of its 15 opposition to arguing that Defendants’ motion is a “procedurally 16 improper attempt to cast a summary judgment motion as a motion to 17 dismiss” which misuses judicially noticed material. Opp’n at 1- 18 9. This characterization of the motion is inaccurate. See 19 generally Mot.; see also Reply 1-2. Further, the Court need not 20 wait until a later stage of the case to resolve Plaintiff’s 21 claims. Constitutional claims — both facial and as-applied 22 challenges — are subject to dismissal under Rule 12(b)(6) if the 23 alleged facts fail to state a claim. See O’Brien v. Welty, 818 24 F.3d 920, 929–32 (9th Cir. 2016). 25 Finally, this Court is well-aware of the “bed-rock 26 principles” governing motions to dismiss that Plaintiff 27 emphasizes in its brief: “that the factual allegations in a 28 complaint are to be taken as true, that such allegations must be 1 construed in a light most favorable to plaintiff . . . and that 2 the Court should not engage in premature fact-finding in 3 considering a motion to dismiss but instead should constrain its 4 review to the legal sufficiency of the pleading.” Opp’n at 1. 5 As explained below, applying these familiar standard to the 6 case at bar, the Court finds Plaintiff has not stated a claim. 7 In reaching this conclusion, the Court focuses on the allegations 8 in the complaint, not on Defendants’ judicially noticed exhibits 9 – which, to repeat, the Court takes notice only of their 10 existence not their substance including any disputed facts within 11 them. See Lee, 250 F.3d at 690; see also Gish, 2020 WL 1979970 12 at *2. 13 1. Substantive Due Process Claim 14 Plaintiff first brings a substantive due process claim. 15 Compl. ¶¶ 63-69. Plaintiff alleges the Blueprint for a Safer 16 Economy and the Regional Orders “have had a disparate impact on 17 Plaintiff and have unfairly targeted Plaintiff’s business, 18 specifically their ability to earn a living by conducting their 19 nail, hair, skincare services, despite the total lack of 20 scientific evidence or data to support the implementation of the 21 Orders as applied to Plaintiff.” Id. ¶ 66. As such, Plaintiff 22 has been deprived of “constitutionally protected liberties and 23 rights.” Id. Further, Plaintiff alleges “the disparity in 24 exemptions . . . is causally related to state officials, such as 25 Newsom, supporting their campaign donors at the expense of small 26 businesses and has nothing to do with science and data.” Id. ¶ 27 52; see also Opp’n at 9 (referring the Court to ¶ 52). 28 “Substantive due process cases typically apply strict 1 scrutiny in the case of a fundamental right and rational basis 2 review in all other cases.” Witt v. Dep’t of Air Force, 527 F.3d 3 806, 817 (9th Cir. 2008). Fundamental rights are those 4 “objectively, deeply rooted in this Nation’s history and 5 tradition, and implicit in the concept of ordered liberty, such 6 that neither liberty nor justice would exist if they were 7 sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 8 (1997) (internal quotation marks and citations omitted). 9 As Defendants argue, “temporary restrictions on how 10 Plaintiff may serve customers at a hair salon do not implicate 11 fundamental rights that would call for heightened scrutiny.” 12 Mot. at 6. Neither the Supreme Court nor the Ninth Circuit has 13 ever held that the right to work or pursue a business enterprise 14 is fundamental right entitled to heightened constitutional 15 scrutiny. Sagana v. Tenorio, 384 F.3d 731, 743 (9th Cir. 2004). 16 Indeed, the Ninth Circuit has recently confirmed that this is not 17 a fundamental right and the proper level of review for this type 18 of claim is rational basis. See Slidewaters LLC v. Washington 19 State Dep’t of Lab. & Indus., No. 20-35634, 2021 WL 2836630 at *7 20 (9th Cir. July 8, 2021) (instructing “the right to pursue a 21 common calling is not considered a fundamental right” and the 22 “proper test for judging the constitutionality of statutes 23 regulating economic activity is whether the legislation bears a 24 rational relationship to a legitimate state interest”); see also 25 Tandon v. Newsom, 992 F.3d 916, 930 (9th Cir. March 30, 2021) 26 (“We have ‘never held that the right to pursue work is a 27 fundamental right,’ and, as such, the district court likely did 28 not err in applying rational basis review to their due process 1 claims.”) As such, the Court finds no fundamental right is at 2 stake and rational basis review applies. 3 The “judicial review which applies to laws infringing on 4 nonfundamental rights [is] a very narrow one” and is satisfied if 5 the Government “could have had a legitimate reason for acting as 6 it did.” Sagana, 384 F.3d at 743. “Under rational-basis review, 7 ‘[t]he burden falls on the party seeking to disprove the 8 rationality of the relationship between the classification and 9 the purpose.’” United States v. Navarro, 800 F.3d 1104, 1113 10 (9th Cir. 2015). 11 Here, Plaintiff insists it has “sufficiently disproved the 12 rationality” of the Orders. Opp’n at 10. The Court does not 13 agree. To the contrary, the challenged Orders easily meet the 14 rational basis standard: the Orders were enacted for the 15 legitimate purpose of curbing the spread of COVID-19 and are 16 rationally related to that purpose because the Orders reduce the 17 number of people from different households mixing indoors where 18 the spread of COVID-19 occurs most readily. Accord Disbar Corp. 19 v. Newsom, No. 2:20-cv—02473-TLN, 2020 WL 7624950 at *4 (E.D. 20 Cal. Dec. 22, 2020) (applying rational basis review and finding 21 salon and other plaintiff businesses were unlikely to succeed on 22 substantive due process challenge in similar COVID-19 23 constitutional challenge); Pro. Beauty Fed’n of California v. 24 Newsom, No. 20-cv-04275-RGK, 2020 WL 3056126 at *6 (C.D. Cal. 25 June 8, 2020). 26 Lastly, the Court agrees with Defendant that Plaintiff’s 27 Addison Rae allegations, see Opp’n at 11 (referring the Court to 28 Addison Rae allegations at ¶ 49 of the complaint), do not affect 1 the rational basis analysis. See Reply at 4. Under rational 2 basis review, it is “entirely irrelevant . . . whether the 3 conceived reason for the challenged distinction actually 4 motivated the legislature.” F.C.C. v. Beach Commc’ns, Inc., 508 5 U.S. 307, 315 (1993). The relevant question is whether the 6 Government “could have had a legitimate reason for acting as it 7 did.” Sagana, 384 F.3d at 743. As explained above, the Court 8 finds the Government could have. The inquiry ends there. 9 Plaintiff’s substantive due process claim thus fails as a 10 matter of law. Because no additional fact discovery would alter 11 this conclusion, Plaintiff’s first claim is dismissed with 12 prejudice. See Deveraturda v. Globe Aviation Sec. Servs., 454 13 F.3d 1043, 1046 (9th Cir. 2006) (explaining a district court need 14 not grant leave to amend where amendment would be futile). 15 2. Equal Protection Claim 16 Plaintiff next asserts an equal protection claim. Compl. 17 ¶¶ 70-77. Plaintiff alleges that “Defendants intentionally and 18 arbitrarily categorized individuals, businesses and conduct as 19 either ‘essential’ or ‘non-essential.’” Id. ¶ 72. According to 20 Plaintiff, these classifications of “essential” and 21 “nonessential” violated the Equal Protection Clause. Opp’n at 9- 22 10. 23 The Equal Protection Clause prohibits the government from 24 drawing arbitrary distinctions between individuals based solely 25 on differences that are irrelevant to a legitimate governmental 26 objective. See City of Cleburne, Tex. v. Cleburne Living Ctr., 27 473 U.S. 432, 446 (1985). The first step in an equal protection 28 analysis is to “identify the state’s classification of groups.” 1 Gallinger v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018) 2 (internal citation omitted). The next step is to “look for a 3 control group composed of individuals who are similarly situated” 4 and “if the two groups are similarly situated, then determine the 5 appropriate level of scrutiny.” Id. Plaintiff bears the burden 6 of pleading that others are similarly situated and how they are 7 similarly situated. Washington v. White, No. 18-cv-00333-WHO, 8 2018 WL 2287676 at *7 (N.D. Cal. May 18, 2018)(internal citation 9 omitted). 10 Defendants first contend that Plaintiff has not plausibly 11 alleged that “essential” and “non-essential” businesses are 12 similarly situated groups. Mot. at 9. Defendants further 13 contend that even if Plaintiff had identified a similarly 14 situated group, its equal protection claim would still fail under 15 rational basis review. Id. at 10-11. 16 As an initial matter, the Court agrees with Defendants that 17 rational basis review is the applicable standard because “no 18 suspect class is involved and no fundamental right is burdened.” 19 Kahawaiolaa v. Norton, 386 F.3d 1271, 1277–78 (9th Cir. 2004) 20 (internal citation omitted). Specifically, as the Ninth Circuit 21 has recently reiterated, the right to pursue a business 22 enterprise is not a fundamental right, and business owners, 23 including salon hair owners, are not a “suspect class.” See 24 Slidewaters LLC, 2021 WL 2836630 at *7; see also Tandon, 992 F.3d 25 at 930 (“[B]usiness owners are not a suspect class, and the 26 district court correctly applied rational basis review to their 27 equal protection claims.”) Rational basis review thus applies. 28 “Courts are compelled under rational-basis review to accept 1 a legislature’s generalizations even when there is an imperfect 2 fit between means and ends.” Heller v. Doe by Doe, 509 U.S. 312, 3 321 (1993). Under rational basis review, the “burden is on the 4 one attacking the legislative arrangement to negative every 5 conceivable basis which might support it.” Armour v. City of 6 Indianapolis, Ind., 566 U.S. 673, 681 (2012) (internal citations 7 omitted). 8 Here, Plaintiff has not met its burden. At least one 9 conceivable basis for the non-essential designation is that 10 limiting activity at non-essential businesses, such as 11 Plaintiff’s, would curb the spread of COVID-19 by limiting the 12 interactions indoors between individuals from different 13 households. See Pro. Beauty Fed’n of California v. Newsom, No. 14 2:20-CV-04275-RGK-AS, 2020 WL 3056126, at *7 (C.D. Cal. June 8, 15 2020) (“The Stay at Home Order has a legitimate purpose—namely, 16 curbing the spread of COVID-19. Additionally, the challenged 17 designations between essential and non-essential businesses 18 promote that purpose.”) Thus, the challenged essential/non- 19 essential classifications survive rational basis review. 20 Plaintiff’s equal protection claim fails as a matter of law. 21 Finding amendment would be futile, the Court dismisses 22 Plaintiff’s second claim with prejudice. See Deveraturda, 454 23 F.3d at 1046. 24 3. Procedural Due Process Claim 25 Plaintiff’s third claim is a procedural due process claim. 26 Compl. ¶¶ 78-101. In particular, Plaintiff complains that the 27 Orders provide “no opportunity for a hearing, no appeal, and no 28 reconsideration” and that its “rights to freely operate its 1 lawful businesses and earn a living were stripped away without so 2 much as a hearing.” Opp’n at 12. 3 The Ninth Circuit, however, has specifically rejected the 4 notion that the Due Process Clause requires this type of process 5 before enacting and enforcing laws of general applicability. 6 Halverson v. Skagit County, 42 F.3d 1257, 1260-61 (9th Cir. 7 1994). “[G]overnmental decisions . . . not directed at one or a 8 few individuals do not give rise to the constitutional procedural 9 due process requirements of individual notice and hearing; 10 general notice as provided by law is sufficient.” Id. at 1261. 11 Plaintiff does not dispute that the challenged Orders 12 applied to large numbers of individuals and businesses across 13 California. See Opp’n. Yet, Plaintiff fails to address 14 Halverson. Id. Instead, Plaintiff cites to several cases 15 involving government action directed toward an individual, not 16 orders of general applicability. Id. at 12-13 (citing to 17 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); 18 Zinermon v. Burch, 494 U.S. 113 (1990); and Bd. of Regents of 19 State Colleges v. Roth, 408 U.S. 564(1972)). As these cases are 20 readily distinguishable, they do not save Plaintiff’s claim. 21 Nor does Plaintiff’s additional argument based on California 22 law save its procedural due process claim. Opp’n at 13; see also 23 Compl. ¶ 84. Specifically, Plaintiff argues that “California 24 courts have found that if a local official declared a quarantine, 25 then certain procedures must be followed” and here they were not 26 followed. Opp’n at 13 (citing to Ex parte Martin, 83 Cal. App. 27 2d 164 (1948) and to Cal. Health and Safety Code § 120130(c)). 28 However, this argument is foreclosed by sovereign immunity 1 because Plaintiffs sued Defendants in their official capacities 2 and therefore the lawsuit is de facto against the state which 3 cannot be sued in federal court based on California law. Reply 4 at 4 (citing to Pennhurst State Sch. & Hosp. v. Halderman, 465 5 U.S. 89, 106 (1984)). Though Defendants raised the sovereign 6 immunity issue in their motion, see Mot. at 11, Plaintiff failed 7 to address it in opposition. See Opp’n. 8 In sum, because the challenged Orders are clearly 9 governmental decisions of general applicability that do not 10 target individual salon owners, Plaintiff was not entitled under 11 Halverson to individualized notice or the right to be heard. 12 Further, Plaintiff’s arguments based on state law are foreclosed 13 under Pennhurst. Plaintiff’s procedural due process claim thus 14 fails as a matter of law. This claim is dismissed with prejudice 15 as the Court finds amendment would be futile. See Deveraturda, 16 454 F.3d at 1046. 17 4. Excessive Fines/ Cruel and Unusual Punishment Claim 18 Plaintiff brings two claims under the Eighth Amendment: an 19 excessive fines and a cruel and unusual punishment claim. Compl. 20 ¶¶ 102-110. Plaintiff’s theory seems to be that Defendants’ 21 Orders cause unemployment among its principals, employees, and 22 independent contractors which in turn inflicts cruel and unusual 23 punishment on those who lose their jobs through massive social, 24 economic, and health costs. Id. ¶¶ 103-105. Plaintiff further 25 alleges that as long as the orders remain in place, it remains 26 “subject to criminal cases (i.e. misdemeanor citations and 27 fines), have their business licenses suspended or withdrawn, or 28 have their utilities shut off by the DWP based on the future 1 enforcement of the Regional Orders by their local Sheriff’s 2 Department.” Id. ¶ 62. Defendants contend both Eighth Amendment 3 claims fail because Plaintiff has not identified a particular 4 fine or punishment, let alone one that would violate the 5 Constitution. Mot. at 2, 12-13; Reply at 5. 6 The Eighth Amendment provides: “Excessive bail shall not be 7 required, nor excessive fines imposed, nor cruel and unusual 8 punishments inflicted.” U.S. CONST., amend. VIII. The 9 excessive fines clause “limits the government’s power to extract 10 payments, whether in cash or in kind, as punishment for some 11 offense.” U.S. v. Bajakajian, 524 U.S. 321, 328 (1998) (internal 12 citations omitted). The government violates this clause when it 13 assesses a fine that is “grossly disproportional to the gravity 14 of a defendant’s offense.” Id. at 334. 15 Here, Plaintiff has not plausibly alleged that the 16 government assessed a fine against it or “punished” it in any 17 other way. Significantly, there is no allegation that the State 18 levied a fine specifically against Plaintiff. Reply at 5. 19 Rather, Plaintiff raises a novel theory as to how “selective 20 enforcement and arbitrary punishment” – which Plaintiff alleges 21 have taken place - can constitute a fine. See Opp’n at 15. 22 However, Plaintiff does not bring forward any authority 23 supporting its theory. Plaintiff’s excessive fines claim 24 therefore fails as a matter of law. 25 As to the cruel and unusual punishment clause, the 26 protections of this clause attach only after a person has been 27 convicted of a crime. Ingraham v. Wright, 430 U.S. 651, 664. 28 Here, Plaintiff does not allege it has been convicted of a crime. 1 See Compl. Additionally, Plaintiff has not brought forward any 2 caselaw supporting the idea that as a corporate entity, it may 3 bring a cruel and unusual punishment claim. Thus, Plaintiff 4 fails to state a cruel and unusual punishment claim. 5 Both Eighth Amendment claims are dismissed with prejudice 6 because the Court finds amendment would be futile. See 7 Deveraturda, 454 F.3d at 1046. 8 5. Freedom of Assembly Claim 9 Plaintiff’s final claim is a freedom of assembly claim. 10 Compl. ¶¶ 111-119. Although Defendants urge the Court to analyze 11 Plaintiff’s claim as a Fourteenth Amendment freedom of intimate 12 association claim, see Mot. at 13-14, Plaintiff has clearly pled 13 a First Amendment claim and the Court analyzes it as such. 14 The First Amendment protects individuals from undue 15 interference with their freedom of speech, assembly, and 16 expressive association. U.S. CONST., amend. I; see also De Jonge 17 v. Oregon, 299 U.S. 353, 364 (1937). Today, freedom of 18 association and freedom of assembly claims are largely viewed and 19 analyzed as one. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 20 (1984). Parties may only bring this type of claim if they 21 demonstrate that they are asserting their right to associate “for 22 the purpose of engaging in those activities protected by the 23 First Amendment—speech, assembly, petition for the redress of 24 grievances, and the exercise of religion.” Id. 25 Here, Plaintiff has not made that threshold showing. In 26 fact, there are no allegations that even attempt to identify 27 expressive conduct or speech triggering First Amendment 28 protections. For instance, Plaintiff does not allege that its 1 customers get together to express a particular message. See 2 Compl. Plaintiff alleges only that “by denying Plaintiff Pomp 3 Salon the ability to conduct their nail, hair and skin services” 4 Defendants are “in violation of the Freedom of Assembly Clause.” 5 Compl. ¶ 114. 6 In addition to the lack of factual allegations identifying 7 any protected speech or conduct, Plaintiff has not brought 8 forward caselaw supporting the idea that the interactions at the 9 salon may trigger First Amendment protection. See Opp’n. By 10 contrast, Defendants cite to City of Dallas v. Stanglin, 490 U.S. 11 19 (1989), in support of their argument that Plaintiff’s ordinary 12 commercial activities are not protected. Mot. at 13-14; Reply at 13 5. In City of Dallas, the Supreme Court held that teenagers’ 14 meetings in dance halls were not protected under the First 15 Amendment, explaining that “it is possible to find some kernel of 16 expression in almost every activity a person undertakes – for 17 example, walking down the street or meeting one’s friends at a 18 shopping mall - but such a kernel is not sufficient to bring the 19 activity within the protection of the First Amendment.” 490 U.S. 20 at 25. Likewise, here while it might be possible to find a 21 “kernel of expression” in the gathering of Plaintiff’s clients’ 22 at the salon, that is insufficient to trigger First Amendment 23 protection. 24 Because Plaintiff has not shown that the non-expressive 25 conduct at issue here triggers the protection of the First 26 Amendment protections, rational basis scrutiny applies. See Calm 27 Ventures LLC v. Newsom, No. CV 20-11501-JFW(PVCx), 2021 WL 28 1502657 at *7 (C.D. Cal. March 25, 2021). 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1 discussed above in the analysis of Plaintiff’s substantive due 2 process and equal protection claims, the Court finds the Orders 3 clearly survive rational basis review: the Orders were enacted 4 for the legitimate purpose of curbing the spread of COVID-19 and 5 are rationally related to that purpose because the Orders reduce 6 the number of people from different households mixing indoors 7 where the spread of COVID-19 occurs most readily. 8 Accordingly, Plaintiff’s fifth claim fails as a matter of 9 law. This claim is dismissed with prejudice as the Court finds 10 amendment would be futile. See Deveraturda, 454 F.3d at 1046. 11 E. Sanctions 12 A violation of the Court’s standing order requires the 13 offending counsel (not the client) to pay $50.00 per page over 14 the page limit to the Clerk of Court. Order re Filing 15 Reguirements at 1, ECF No. 4-2. Moreover, the Court does not 16 consider arguments made past the page limit. Id. 17 Plaintiff’s opposition brief exceeds the Court’s page limit 18 | by 1.5 pages. See Opp’n. Plaintiff’s counsel must therefore 19 send a check payable to the Clerk for the Eastern District of 20 California for $75.00 no later than seven days from the date of 21 this Order. 22 Til. ORDER 23 For the reasons set forth above, the Court GRANTS 24 Defendants’ motion to dismiss WITH PREJUDICE. 25 IT IS SO ORDERED. 26 Dated: August 4, 2021 27 kA 28 teiren staves odermacr 7008 20