Excel Fitness Fair Oaks, LLC v. Newsom

• Court: District Court, E.D. California
• Decided: March 2, 2021
• Docket: 2:20-cv-02153
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 EXCEL FITNESS FAIR OAKS, LLC, No. 2:20-cv-02153-JAM-CKD et al., 9 Plaintiffs, 10 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS 11 GAVIN NEWSOM, et al., 12 Defendants. 13 14 I. INTRODUCTION 15 Over the past year, this Court has been presented with 16 unique and novel constitutional issues arising out of the COVID- 17 19 pandemic. See Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD 18 (E.D. Cal. 2020); Cross Culture Christian Ctr. v. Newsom, No. 19 2:20-cv-00832-JAM-CKD (E.D. Cal. 2020); Best Supplement Guide, 20 LLC, v. Newsom, No. 2:20-cv-00965-JAM-DKC (E.D. Cal. 2020). Each 21 time the Court has ruled on one of these pandemic-era 22 constitutional challenges, it has emphasized that context is 23 important and bears repeating: across the United States, over 27 24 million people have been infected with COVID-19 and over500,000 25 have died.1 In California, over 3.4 million have been infected 26

27 1 Ctrs. for Disease Control & Prevention, “Cases in the U.S.,” https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in- 28 us.html (last accessed February 22, 2021). 1 and almost 50,000 have died.2 Those who recover from the virus 2 do not always do so fully, as reflected in growing reports of 3 permanent lung damage and other serious long-term health 4 complications.3 And still, these statistics do not begin to 5 capture the full fallout from the pandemic. For instance, as 6 relevant to the present action, these statistics do not capture 7 the financial hardship so many businesses have faced and continue 8 to face during the pandemic. 9 Yet, with the vaccine rollout underway, there is finally 10 some light at the end of the tunnel. Within the year, the 11 plaintiffs bringing these constitutional challenges to State and 12 Local Public Health Orders may be able to resume normal 13 operations. In the meantime, their continued compliance with the 14 Orders remain essential to helping prevent the spread of COVID-19 15 and saving lives. 16 This context matters because the Public Health Orders being 17 challenged in these lawsuits have been enacted to stop the spread 18 of COVID-19 and keep Californians safe. As such, not every harm 19 flowing from these Orders can be legally cognizable, let alone 20 rise to the level of a constitutional violation. Indeed, this 21 Court recently dismissed a similarly situated gym owner’s 22 challenge to the Orders, finding no constitutional claim had been 23

24 2 Cal. Dep’t of Public Health, “California COVID-19 by the Numbers,” 25 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov 2019.aspx#COVID-19 by the Numbers (last accessed February 22, 26 2021). 27 3 Ctrs. for Disease Control & Prevention, “Long-Term Effects of COVID-19,” https://www.cdc.gov/coronavirus/2019-ncov/long-term- 28 effects.html (last accessed February 19, 2021). 1 stated. Best Supplement Guide, LLC v. Newsom, No. 2-20-cv-00965- 2 JAM-DKC, oral op. (E.D. Cal. Oct. 27, 2020). 3 The present action is brought by three California limited 4 liability corporations operating gyms in the Greater Sacramento 5 Area (“Plaintiffs”) that were impacted by State and Local Public 6 Health Orders. Compl., ECF No. 1. Plaintiffs’ gyms were 7 required to close from March to early June 2020, id. ¶¶ 73, 84, 8 93-94, and since June, Plaintiffs have incurred significant costs 9 to operate their gyms in compliance with Defendants’ Orders, id. 10 ¶¶ 83, 89, 103. In response, Plaintiffs filed this Section 1983 11 action against: (1) Gavin Newsom, Xavier Becerra, and Sandra 12 Shrewy (“State Defendants”); (2) Darrell Steinberg, Susana Alcala 13 Wood, and Daniel Hahn (“Sacramento City Defendants”); (3) Olivia 14 Kasirye, Scott Jones, Anne Schubert, Phil Serna, Patrick Kennedy, 15 Susan Peters, Sue Frost, and Don Nottoli (“Sacramento County 16 Defendants”); (4) Bela Matyas, Thomas Ferrara, Krishna Abrams, 17 Erin Hannigan, Monica Brown, Jim Spering, John Vasquez, and Skip 18 Thompson (“Solano County Defendants”); and (5) Thom Bogue, Robert 19 Thompson, and Douglas White (“Dixon Defendants”). Id. 20 Plaintiffs allege Defendants’ Orders violate their constitutional 21 rights under both the U.S. Constitution and the California 22 Constitution. Id. at ¶ 6. Specifically, Plaintiffs assert five 23 claims against Defendants: (1) violation of the Takings Clause of 24 the Fifth Amendment, (2) violation of the Due Process Clause of 25 the Fourteenth Amendment, (3) violation of the Liberty Clause of 26 the California Constitution, (4) violation of the Equal 27 Protection Clause of the California Constitution, and 28 (5) violation of Cal. Gov. Code § 8572 (Anti-Commandeering). Id. 1 ¶¶ 104-154. They seek monetary, declaratory, and injunctive 2 relief for these alleged violations. Id. at 26-27. 3 Before the Court are five motions to dismiss.4 Mot. to 4 Dismiss by Dixon Defendants (“Dixon Mot.”), ECF No. 13; Mot. to 5 Dismiss by Sacramento County Defendants (“Sacramento County 6 Mot.”), ECF No. 19; Mot. to Dismiss by Solano County Defendants 7 (“Solano Mot.”), ECF No. 20; Mot. to Dismiss by State Defendants 8 (“State Mot.”), ECF No. 23; Mot. to Dismiss by Sacramento City 9 Defendants (“Sacramento City Mot.”), ECF No. 24. Plaintiffs 10 opposed these motions. Opp’n by Excel Fitness et al. to Dixon 11 Mot. (“Opp’n to Dixon”), ECF No. 25; Opp’n by Excel Fitness et 12 al. to Sacramento City Mot. (“Opp’n to Sacramento City”), ECF No. 13 26; Opp’n by Excel Fitness et al. to State Mot. (“Opp’n to 14 State”), ECF No. 27; Opp’n by Excel Fitness et al. to Solano Mot. 15 (“Opp’n to Solano”), ECF No. 28; Opp’n by Excel Fitness et al. to 16 Sacramento County Mot. (“Opp’n to Sacramento County”), ECF 17 No. 30. Each Defendant then filed a reply. Reply by State 18 Defendants (“State Reply”), ECF No. 33; Reply by Dixon Defendants 19 (“Dixon Reply”), ECF No. 34; Reply by Sacramento County 20 Defendants (“Sacramento County Reply”), ECF No. 35; Reply by 21 Sacramento City Defendants (“Sacramento City Reply”), ECF No. 36; 22 Reply by Solano County Defendants (“Solano Reply”), ECF No. 37. 23 For the reasons set forth below, the Court grants 24 Defendants’ motions to dismiss. 25 /// 26

27 4 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for January 26, 2021. 1 II. FACTUAL BACKGROUND 2 Plaintiffs, three California LLCs, each respectively operate 3 a membership-based gym that has been impacted by State and Local 4 Public Health Orders enacted to combat the spread of COVID-19. 5 See Compl. First, Excel Fitness Fair Oaks, LLC, (“Excel Fair 6 Oaks”) operates a gym in Fair Oaks, California. Id. ¶¶ 8, 72-83. 7 Second, Jaguar Muay Thai (“Jaguar”) operates a gym in Sacramento, 8 California. Id. ¶¶ 9, 84-89. Third, Excel Fitness, LLC, (“Excel 9 Dixon”) operates a gym in Dixon, California. Id. ¶¶ 10, 90-103. 10 In March 2020, Governor Newsom, Sacramento County, and 11 Solano County began issuing stay-at-home orders to combat the 12 rapid spread of COVID-19. Id. ¶¶ 46-68; see also Governor 13 Newsom’s March 19, 2020, Stay-at-Home Order, Ex. 2 to Compl.; 14 Sacramento and Solano Counties’ March 2020 Stay-at-Home Orders, 15 Ex. 3 to Compl. These stay-at-home orders required Plaintiffs’ 16 gyms to close. Id. ¶¶ 53, 73, 84. During their closures, each 17 of the gyms lost members. Id. ¶¶ 74-75, 85-86, 93. 18 In early May, Governor Newsom announced the “Resilience 19 Roadmap,” a four-stage plan for reopening. See State’s May 4, 20 2020, Pandemic Roadmap, Ex. 4 to Compl. Plaintiffs’ gyms, 21 however, were not allowed to reopen until early June. Id. ¶¶ 78, 22 88, 94. To reopen indoor operations in compliance with new 23 COVID-19 safety protocols, each gym incurred significant costs. 24 Id. ¶¶ 83, 89, 103. 25 The public health orders changed again in mid-July 2020, 26 prohibiting indoor gym operations but permitting Plaintiffs’ 27 operations to continue outdoors. Id. ¶ 96. Excel Fair Oaks and 28 Excel Dixon allege their ability to operate outdoors is limited 1 both by space constraints and the extreme heat and poor air 2 quality caused by wildfires. Id. ¶¶ 80, 97-99. Though the State 3 and County public health orders have continued to change5, the 4 complaint contains allegations only about the orders enacted 5 between March and July 2020 (“Orders”). Id. ¶¶ 46-71,96. 6 7 III. LEGAL STANDARDS 8 A. Requests for Judicial Notice 9 Rule 201 of the Federal Rules of Evidence allows a court to 10 take judicial notice of an adjudicative fact that is “not 11 subject to reasonable dispute,” because it (1) “is generally 12 known within the trial court’s territorial jurisdiction”; or 13 (2) “can be accurately and readily determined from sources whose 14 accuracy cannot reasonably be questioned.” Fed. R. Evid. 15 201(a)–(b). A court may take judicial notice of matters of 16 public record. United States ex rel. Lee v. Corinthian 17 Colleges, 655 F.3d 984, 999 (9th Cir. 2011). Matters of public 18 record include “documents on file in federal or state courts.” 19 Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 20 They also include “government documents available from reliable 21 sources on the internet.” Cal. River Watch v. City of 22 Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 23 (E.D. Cal. Sept. 1, 2017). Moreover, courts may take judicial 24 notice of matters of public record and consider them in deciding 25 a Rule 12 motion without converting it into one for summary 26 5 See State’s August 2020, Blueprint for a Safer Economy, 27 available at: https://www.gov.ca.gov/2020/08/28/governor-newsom- unveils-blueprint-for-a-safer-economy-a-statewide-stringent-and- 28 slow-plan-for-living-with-covid-19/ 1 judgment. United States v. 14.02 Acres of Land, 547 F.3d 943, 2 955 (9th Cir. 2008) (quoting Lee v. City of Los Angeles, 250 3 F.3d 668, 688 (9th Cir. 2001)). However, courts may not take 4 judicial notice of “disputed facts stated in public records.” 5 See Lee, 250 F.3d at 690. 6 Solano County Defendants request the Court take judicial 7 notice of Exhibits A through T. See Solano Defs.’ Req. for Jud. 8 Notice (“RJN”), ECF No. 21. Sacramento County Defendants ask 9 the Court to take judicial notice of Exhibits A through M. See 10 Sacramento County Defs’ RJN, ECF No. 22. State Defendants 11 request the Court take judicial notice of seventeen exhibits. 12 See State Defs’ RJN, ECF No. 23-2. Finally, Sacramento City 13 Defendants request the Court take notice of three exhibits. See 14 Sacramento City Defs’ RJN, ECF No. 24-2. Plaintiffs opposed 15 Defendants’ requests. See Opp’n to State Defs’ RJN, ECF No. 29; 16 Opp’n to Solano Defs’ RJN, ECF No. 31; Opp’n to Sacramento 17 County Defs’ RJN, ECF No. 32. 18 Having reviewed each of Defendants’ requests and 19 Plaintiffs’ oppositions, the Court finds all exhibits to be 20 matters of public record and therefore proper subjects of 21 judicial notice. Accordingly, the Court GRANTS all Defendants’ 22 Requests for Judicial Notice. However, the Court takes judicial 23 notice only of the existence of these documents and declines to 24 take judicial notice of their substance, including any disputed 25 or irrelevant facts within them. Lee, 250 F.3d at 690; see also 26 Gish v. Newsom, No. EDCV 20-755-JGB(KKx), at *2 (C.D. Cal. April 27 23, 2020) (explaining courts judicially notice only “the 28 contents of the documents, not the truth of those contents”). 1 B. 12(b)(6) Standard 2 A Rule 12(b)(6) motion attacks the complaint as not alleging 3 sufficient facts to state a claim for relief. Fed. R. Civ. Proc. 4 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], a 5 complaint must contain sufficient factual matter, accepted as 6 true, to state a claim to relief that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation 8 marks and citation omitted). Dismissal is proper where there is 9 no cognizable legal theory or insufficient facts supporting a 10 claim entitling the plaintiff to relief. Hinds Invs., L.P. v. 11 Angiolo, 654 F.3d 846, 850 (9th Cir. 2011). Constitutional 12 claims — both facial and as-applied challenges — are subject to 13 dismissal under Rule 12(b)(6) if the alleged facts fail to state 14 a claim. See O’Brien v. Welty, 818 F.3d 920, 929–32 (9th Cir. 15 2016). 16 17 IV. OPINION 18 In their five Motions, Defendants set forth a plethora of 19 arguments as to why Plaintiffs’ complaint should be dismissed, 20 not all of which the Court finds necessary to reach in order to 21 conclude that dismissal is warranted. See Dixon Mot.; Sacramento 22 County Mot.; Solano Mot.; State Mot.; Sacramento City Mot. 23 Solano County and Sacramento County Defendants, for 24 instance, lead with this Court’s decision in Best Supplement, 25 arguing that Plaintiffs here, like the plaintiff-gym-owners in 26 Best Supplement, fail to demonstrate that any clearly protected 27 constitutional right is at stake. Sacramento County Reply at 1- 28 3; Solano Reply at 1 (both citing to Best Supplement Guide, LLC 1 v. Newsom, No. 2-20-cv-00965-JAM-DKC, oral op. (E.D. Cal. Oct. 2 27, 2020)). The Court agrees. Though the Court takes as true 3 Plaintiffs’ allegations that the Orders have financially harmed 4 their gym businesses, Plaintiffs’ indoor gym operations do not 5 trigger any constitutional protections. 6 Significantly, Plaintiffs have not brought forth any 7 authority, binding or otherwise, in which another court has found 8 indoor gym operations are entitled to constitutional protection. 9 See Opp’n to Dixon; Opp’n to Sacramento City; Opp’n to State; 10 Opp’n to Solano; Opp’n to Sacramento County. Quite the opposite. 11 Federal courts around the country addressing similar challenges 12 by gym-owners have consistently upheld COVID-19 gym closures. 13 See e.g. League of Independent Fitness Facilities & Trainers, 14 Inc. v. Whitmer, 2020 WL 3468281 (6th Cir. June 24, 2020); World 15 Gym, Inc. v. Baker, 2020 WL 4274557 (D. Mass. Jul. 24, 2020); 16 Xponential Fitness v. Arizona, 2020 WL 3971908 (D. Ariz. Jul. 14, 17 2020). 18 Plaintiffs’ failure to identify any constitutionally 19 protected right at issue is alone grounds for dismissal. But, 20 even if the Court were to find some constitutionally protected 21 right at stake, Plaintiffs still have not alleged facts from 22 which this Court could plausibly find that the challenged Orders 23 violated Plaintiffs’ constitutional rights. Hinds, 654 F.3d at 24 850. As explained below, this conclusion holds regardless of 25 whether the Court applies Jacobson or traditional constitutional 26 standards. 27 /// 28 /// 1 The parties dispute which standard – Jacobson or 2 traditional constitutional standards – should govern the Court’s 3 12(b)(6) analysis. Defendants argue for the application of the 4 more deferential standard set forth in Jacobson v. Commonwealth 5 of Massachusetts, 197 U.S. 11, 31 (1905). Dixon Mot. at 2-3; 6 Sacramento County Mot. at 8-9; Solano Mot. at 6-7; State Mot. at 7 8-9; Sacramento City Mot. at 6-7. Seeming to understand their 8 claims would fail under a Jacobson review, Plaintiffs dedicate 9 much of their opposition briefs to arguing that traditional 10 constitutional standards should apply. Opp’n to Dixon at 11-12; 11 Opp’n to Sacramento City at 6-7; Opp’n to State at 6-7; Opp’n to 12 Solano at 6-7; Opp’n to Sacramento County at 6-7. In 13 particular, Plaintiffs insist that Jacobson should not apply in 14 light of the Supreme Court’s opinion in Roman Catholic Diocese 15 of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020). Id. The Court 16 disagrees. Roman Catholic Diocese, a case involving a First 17 Amendment Free Exercise challenge brought by houses of worship, 18 does not bear on this case, which does not involve religious 19 liberties nor the associated First Amendment protections that 20 trigger strict scrutiny. See State Reply at 1-2; Dixon Reply at 21 5; Sacramento City Reply at 5. 22 To decide the present Motions, however, the Court need not 23 resolve the scope of Roman Catholic Diocese and whether Jacobson 24 remains the proper standard after that decision. As discussed 25 below, even applying traditional constitutional standards, the 26 Court finds Plaintiffs have not stated a viable constitutional 27 claim. 28 /// 1 A. Fifth Amendment Takings Claim 2 Plaintiffs’ first claim is that the Orders constitute a 3 regulatory taking by the County and City Defendants in violation 4 of the Fifth Amendment. Compl. ¶¶ 104-112. Defendants respond 5 that “a takings claim cannot operate as a substitute for a 6 challenge to the substantive validity of a law” under Lingle v. 7 Chevron U.S.A. Inc., 544 U.S. 528 (2005). Sacramento County Mot. 8 at 9-10; Solano Mot. at 8. In Lingle, the Supreme Court 9 overturned summary judgment for Chevron because “Chevron plainly 10 [did] not seek compensation for a taking of its property for a 11 legitimate public use, but rather an injunction against the 12 enforcement of a regulation that it alleges to be fundamentally 13 arbitrary and irrational.” Id. at 544. Under Lingle, the 14 question of substantive validity of a regulation is logically 15 prior to and distinct from the question of whether that 16 regulation effects a taking. Id. at 543. Here, Defendants 17 argue, Plaintiffs’ takings claim is actually a challenge to the 18 substantive validity of the Orders and therefore must fail. 19 Sacramento County Mot. at 9-10; Solano Mot. at 8; Sacramento 20 County Reply at 3; Solano Reply at 3. In opposition, Plaintiffs 21 do not address Defendants’ Lingle arguments. See Opp’n to 22 Solano; Opp’n to Sacramento County. Plaintiffs’ failure to 23 address these arguments constitutes waiver. See e.g. Resnick v. 24 Hyundai Motor Am., Inc., 2017 WL 1531192 at *22 (C.D. Cal. Apr. 25 13, 2017) (“Failure to oppose an argument raised in a motion to 26 dismiss constitutes waiver of that argument.”); Richardson-Bass 27 v. State Center Cmty. College District, 2020 WL 5658225 at *15 28 (E.D. Cal. Sept. 23, 2020) (collecting cases). 1 Further, Plaintiffs do not attempt to address Defendants’ 2 arguments based on Tahoe-Sierra Pres. Council v. Tahoe Reg’l 3 Planning Agency, 535 U.S. 302 (2002). Sacramento County Mot. at 4 11; State Mot. at 10-11. In Tahoe-Sierra, the Supreme Court held 5 that a 32-month moratorium on development on Lake Tahoe – a 6 complete but temporary restriction on property use – did not 7 constitute a regulatory taking. Id. Given that the Supreme 8 Court did not find a 32-month moratorium to constitute a 9 regulatory taking, Plaintiffs’ allegations of a few months of gym 10 closures, Compl. ¶¶ 53, 73, 84, followed by reopening with COVID- 11 19-safety-related restrictions, id. ¶¶ 78-83, 88-89, 95-103, are 12 clearly insufficient to establish a regulatory taking. 13 Plaintiffs admit that since June, their gyms have been able to 14 operate, id. ¶¶ 78, 88, 94, albeit sometimes only outdoors. Id. 15 ¶ 96. Nor do Plaintiffs’ allegations that space constraints and 16 extreme weather conditions make operating outdoors difficult, 17 Compl. ¶¶ 80, 97-100, change the constitutional analysis. Again, 18 in Tahoe-Sierra, the Supreme Court upheld a 32-month complete 19 moratorium; clearly then, Plaintiffs’ allegations of restrictions 20 on their indoor operations fail to state a claim. 21 In sum, these two Supreme Court precedents – Lingle and 22 Tahoe-Sierra – foreclose Plaintiffs’ claim that the Orders 23 constituted an unconstitutional regulatory taking. Plaintiffs’ 24 takings claim under the Fifth Amendment therefore fails as a 25 matter of law and must be dismissed. 26 The Court further finds that dismissal with prejudice is 27 appropriate. The Court need not grant leave to amend where 28 amendment would be futile. Deveraturda v. Globe Aviation Sec. 1 Servs., 454 F.3d 1043, 1049 (9th Cir. 2006). In opposition, 2 Plaintiffs failure to respond to Defendants’ Lingle and Tahoe- 3 Sierra arguments or proffer any additional facts or allegations 4 that might save this claim convinces the Court that amendment 5 would be futile. Accordingly, Plaintiffs’ first claim is 6 DISMISSED WITH PREJUDICE. 7 B. Fourteenth Amendment Claim 8 With respect to their second claim under the Due Process 9 Clause of the Fourteenth Amendment, Plaintiffs appear to advance 10 three separate theories of liability: a procedural due process 11 violation, a substantive due process violation, and a vagueness 12 claim. Compl. ¶¶ 113-128. 13 The Due Process Clause of the Fourteenth Amendment contains 14 both a procedural and substantive component. Washington v. 15 Glucksberg, 521 U.S. 702, 720-21 (1997). “Procedural due process 16 imposes constraints on governmental decisions which deprive 17 individuals of ‘liberty’ or ‘property interests within the 18 meaning of the Due Process clause.” Mathews v. Eldridge, 424 19 U.S. 319, 332 (1976). 20 With respect to their procedural due process claim, 21 Plaintiffs allege they were entitled to notice and a hearing 22 before gyms were determined to be “non-essential” under the 23 Orders and thus required to close, id. ¶ 121, or alternatively 24 that they were entitled to a post-deprivation hearing to “present 25 their case in favor of allowing Plaintiffs’ business to remain 26 open,” id. ¶ 122. But, the Ninth Circuit has specifically 27 rejected the notion that the Due Process Clause requires this 28 type of process before enacting and enforcing laws of general 1 applicability.” Halverson v. Skagit County, 42 F.3d 1257, 1260 2 (9th Cir. 1994). “[G]overnmental decisions . . . not directed at 3 one or a few individuals do not give rise to the constitutional 4 procedural due process requirements of individual notice and 5 hearing; general notice as provided by law is sufficient.” 6 Halverson, 42 F.3d at 1260. 7 Here, the challenged Orders are clearly decisions of general 8 applicability that do not target individual gym owners or 9 facilities. Compl. ¶¶ 48-71. Thus, under Halverson, Plaintiffs 10 were not entitled to individualized notice or the right to be 11 heard. As such, Plaintiffs’ procedural due process claim fails 12 as a matter of law. 13 Turning to Plaintiffs’ substantive due process claim, the 14 substantive component of the Fourteenth Amendment Due Process 15 Clause “forbids the government from depriving a person of life, 16 liberty, or property in such a way that . . . interferes with 17 rights implicit in the concept of ordered liberty” — regardless 18 of what type of process is first given. Engquist v. Oregon Dept. 19 of Agric., 478 F.3d 985, 996 (9th Cir 2007). To state a claim 20 for a substantive due process violation, the plaintiff must show 21 that the state action challenged either “shocks the conscience” 22 or arbitrarily deprived the plaintiff of a fundamental right. 23 United States v. Salerno, 481 U.S. 739, 746 (1987). 24 First, the Court finds nothing conscience-shocking about the 25 Orders being challenged. These Orders, enacted to protect the 26 community during an unprecedented public health crisis, plainly 27 do not shock the conscience by the demanding substantive due 28 process legal standards. Second, Plaintiffs have failed to 1 identify any fundamental right that they have been arbitrarily 2 deprived of by Defendants. Though Plaintiffs pled in conclusory 3 terms that they have been deprived of a fundamental right to 4 “conduct lawful business activities,” Compl. ¶¶ 117, 123, 5 Plaintiffs fail to provide any legal authority supporting their 6 position that such a right exists. See Opp’n to Dixon; Opp’n to 7 Sacramento City; Opp’n to State; Opp’n to Solano; Opp’n to 8 Sacramento County. To the contrary, neither the Supreme Court 9 nor the Ninth Circuit has ever held that the right to pursue a 10 business enterprise is a fundamental right entitled to heightened 11 constitutional scrutiny. Sagana v. Tenorio, 384 F.3d 731, 742- 12 743 (9th Cir. 2004). As such, the Court finds no fundamental 13 right is at stake and rational basis review applies. 14 Under rational basis review, the Court need only ask 15 “whether the government could have had a legitimate reason for 16 acting as it did.” Halverson, 42 F.3d at 1262. Further, under 17 rational basis review, the burden is on Plaintiffs to show the 18 government did not act legitimately. Id. (explaining “plaintiffs 19 shoulder a heavy burden”). Plaintiffs here appear to confuse the 20 burden, arguing that the Orders fail even under rational basis 21 review because Defendants did not submit evidence that indoor gym 22 operations directly resulted in COVID-19 outbreaks. Opp’n to 23 Sacramento County at 12. But it is Plaintiffs’ burden to show 24 Defendants did not have a legitimate reason for acting as they 25 did, not Defendants’ burden to prove they did have a legitimate 26 reason. Plaintiffs have not carried their burden. 27 Further, the Court finds the challenged Orders easily 28 survive rational basis review: the Orders were enacted for a 1 legitimate reason – to curb the spread of COVID-19 - and are 2 rationally related to curbing the spread because the Orders 3 reduce the number of people mixing indoors, where the spread of 4 COVID-19 occurs most readily. See also League of Independent 5 Fitness Facilities & Trainers, 2020 WL 3468281, at *3 (“the idea 6 that heavy breathing and sweating in an enclosed space containing 7 many shared surfaces creates conditions likely to spread the 8 virus is a paradigmatic example of ‘rational speculation’ that 9 fairly supports the Governor’s treatment of indoor fitness 10 facilities.”) Accordingly, Plaintiffs have not stated a 11 substantive due process claim. 12 Finally, turning to Plaintiffs’ claim that the Orders 13 violate the Fourteenth Amendment because they are 14 unconstitutionally vague, Plaintiffs allege the Orders “fail to 15 provide sufficient notice of which actions will potentially 16 subject Plaintiffs to civil or criminal penalties.” Compl. 17 ¶¶ 116, 118. As a result, Plaintiffs “have been forced to 18 operate between a rock and a hard place, trying to comply with 19 all of the applicable Orders, but unable to discern what the 20 applicable law permits.” Id. ¶ 66. 21 However, to state such a claim, Plaintiffs must plead more 22 than the conclusory allegations that the Public Health Orders are 23 vague. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“mere 24 conclusory statements do not suffice” to defeat a motion to 25 dismiss). Here, Plaintiffs have failed to explain how the Orders 26 are vague as to what is permitted and what is not. Moreover, 27 Plaintiffs’ allegations in other parts of the Complaint indicate 28 they do in fact understand what the Public Health Orders permit 1 and what they prohibit. Compl. ¶¶ 78-80, 88, 94-96. Excel’s 2 lone allegation that Defendant Thompson cited Excel for alleged 3 violations of the orders without providing “any clear indication 4 as to how Excel violated Defendants’ Orders”, id. ¶ 101, does not 5 save Plaintiffs’ vagueness claim. Even accepting this allegation 6 as true, the Court cannot plausibly infer from the allegation 7 that because Thompson’s citations were vague that the underlying 8 Orders must also be vague. Accordingly, the Court finds 9 Plaintiffs’ vagueness claim also fails. 10 In sum, all three of Plaintiffs’ Fourteenth Amendment claims 11 – the procedural due process claim, the substantive due process 12 claim, and the vagueness claim – fail as a matter of law. 13 Finding once again that further amendment would be futile, 14 Plaintiffs’ second claim is DISMISSED WITH PREJUDICE. 15 Deveraturda, 454 F.3d at 1049 (finding leave to amend need not be 16 granted when amendment would be futile). 17 C. State Law Claims 18 Plaintiffs’ remaining state-law claims are that the 19 challenged Orders violate the Liberty Clause of the California 20 Constitution, Compl. ¶¶ 129-135, the Equal Protection Clause of 21 the California Constitution, id. ¶¶ 136-142, and Cal. Gov. Code § 22 8572, id. ¶¶ 143-154. 23 With Plaintiffs’ two federal claims dismissed, this Court 24 “may decline to exercise supplemental jurisdiction over a related 25 state claim if . . . (3) the district court has dismissed all 26 claims over which it has original jurisdiction.” 28 U.S.C. 27 § 1367(c). Here, the Court so declines. 28 The Court additionally notes that, as Defendants argue in 1 their reply briefs, Plaintiffs have not meaningfully addressed 2 Defendants’ legal arguments as to why the state law claims should 3 be dismissed. State Reply at 5; Solano Reply at 4; Sacramento 4 County Reply at 4-5. Plaintiffs’ failure to address Defendants’ 5 legal arguments constitutes waiver and further warrants dismissal 6 of these claims. 7 Accordingly, Plaintiffs’ state law claims are DISMISSED 8 without prejudice to refile in state court. 9 V. SANCTIONS 10 A violation of the Court’s standing order requires the 11 offending counsel (not the client) to pay $50.00 per page over 12 the page limit to the Clerk of Court. Order re Filing 13 Requirements at 1, ECF No. 9-2. Moreover, the Court does not 14 consider arguments made past the page limit. Id. 15 Dixon Defendants’ reply brief exceeds the Court’s page limit 16 by 1.5 pages. See Dixon Reply. Dixon Defendants’ counsel must 17 therefore send a check payable to the Clerk for the Eastern 18 District of California for $75.00 no later than seven days from 19 the date of this Order. 20 Sacramento City Defendants’ reply brief also exceeds the 21 Court’s page limit by 1.5 pages. See Sacramento City Reply. 22 Sacramento City Defendants’ counsel must therefore send a check 23 payable to the Clerk for the Eastern District of California for 24 $75.00 no later than seven days from the date of this Order. 25 VI. ORDER 26 For the reasons set forth above, the Court GRANTS 27 Defendants’ motions to dismiss. Plaintiffs’ two federal claims 28 are dismissed WITH PREJUDICE. The Court declines to exercise em DIE ONIN IE IRIE DE IRIS) SEEN ORI OO OE ES eee

1 supplemental jurisdiction over the remaining state law claims. 2 Thus, Plaintiffs’ three state law claims are dismissed WITHOUT 3 PREJUDICE to refile in state court. 4 IT IS SO ORDERED. 5 Dated: March 1, 2021 ke A 7 Geren aaa pebrsacr 00k 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19