Givens v. Newsom

Opinion

UNITED STATES DISTRICT COURT RON GIVENS, an individual; No. 2:20-cv-00852-JAM-CKD CHRISTINE BISH, an individual, Plaintiffs, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING IN PART v. AND DENYING IN PART PLAINTIFFS’ MOTION TO AMEND GAVIN NEWSOM, in his capacity as Governor of California; et al., Defendants. Ron Givens and Christine Bish (“Plaintiffs”) bring this action challenging California’s response to the Coronavirus Disease 2019 (“COVID-19”) on First Amendment grounds. See Compl., ECF No. 1. Before the Court are two motions.1 First, Gavin Newsom, Rob Bonta, Amanda Ray, and Tomás Aragón (“Defendants”) filed a motion to dismiss.2 See Defs.’ Mot., ECF

1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearings were scheduled for August 24, 2021. 2 Rob Bonta succeeded former Attorney General Xavier Becerra; Amanda Ray succeeded former California Highway Patrol Commissioner, Warren Stanley; and Tomás Aragón succeeded former California Public Health Officer, Erica Pan. These individuals are automatically substituted pursuant to Fed. R. Civ. P. 25(d). No. 77. Plaintiffs opposed this motion. See Pls.’ Opp’n., ECF No. 81. Defendants replied. See Defs.’ Reply, ECF No. 83. Second, Plaintiffs filed a motion to amend. See Pls.’ Mot., ECF No.79. Defendants opposed Plaintiffs’ motion. See Defs.’ Opp’n, ECF No. 80. Plaintiffs replied. See Pls.’ Reply, ECF No. 82. After consideration of the parties’ briefing on the motions and relevant legal authority, the Court DENIES Defendants’ motion to dismiss and GRANTS in part and DENIES in part Plaintiffs’ motion to amend. The parties are familiar with the factual background of this case—it is set forth in the complaint, the parties’ briefings, and the Court’s prior order. See Order Denying TRO at 2-4, ECF No. 18. The Court therefore does not restate the background here. Defendants previously moved to dismiss the complaint in June 2020, arguing inter alia that Plaintiffs’ claims were rendered moot by changes to the State’s public health directives. See Defs.’ Prior Mot. at 5-7, ECF No. 33. The Court denied the motion, finding Defendants had not met their burden to show the ban on events at the Capitol was not reasonably likely to recur. See Transcript from July 14, 2020 Hearing at 15-18, ECF No. 45. According to Defendants, “the landscape surrounding the COVID-19 pandemic in California . . . has shifted sharply” in the year since this Court denied their prior motion. Defs.’ Mot. at 1. Thus, they now renew their motion to dismiss on mootness grounds. See generally Defs. Mot. A. Judicial Notice Defendants request the Court take judicial notice of nine exhibits: (1) the Governor’s Executive Order N-07-21; (2) the Governor’s Executive Order N-08-21; (3) the “California Vaccine Progress Data” from July 7, 2021; (4) the California Highway Patrol’s (“CHP”) website “State Capitol Events-Home” page; (5) the Governor’s March 4, 20220 Proclamation of a State Emergency; (6) the Governor’s Executive Order N-33-20; (7) the California Department of Public Health’s (“CDPH”) website “Counties Statewide Can Reopen Places of Worship for Religious Services and Retail Stores” page; (8) the CDPH’s website “California Public Health Officials Provide COVID-19 Update” page; and (9) the “Tracking COVID-19 in California” webpage from July 7, 2021. See Defs.’ Req. for Jud. Notice (“RFJN”), ECF No. 77. All of the above exhibits are matters of public record and therefore proper subjects of judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the Court GRANTS Defendants’ request for judicial notice. However, the Court takes judicial notice only of the existence of these documents and declines to take judicial notice of their substance, including any disputed or irrelevant facts within them. Lee, 250 F.3d at 690. B. Defendants’ 12(b)(1) Motion In their motion, Defendants argue the Court lacks subject matter jurisdiction because Plaintiffs’ claims are moot. See Defs.’ Mot. at 5-11. A defendant may move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(1). Once a party has moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court’s jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (internal citations omitted). However, voluntary cessation of challenged conduct does not necessarily render a case moot. Id. This is because “dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Id. Courts presume that a government entity is acting in good faith when it changes its policy. Id. But courts “are less inclined to find mootness where the new policy could be easily abandoned or altered in the future.” Id. at 972 (internal citation omitted). Finally, the party asserting mootness bears a “heavy burden” to show that “the challenged conduct cannot reasonably be expected to reoccur.” Id. Defendants argue Plaintiffs’ claims for injunctive and declaratory relief are moot because the State’s current public health directives do not prohibit outdoor protests or limit the number of participants at protests. Defs.’ Mot. at 5–6. Defendants further contend the voluntary cessation exception to mootness does not apply because a ban on protest permits is not reasonably likely to occur. Id. at 6-11. In support of this contention, they emphasize that Executive Order N-33-20 has now been rescinded. Id. at 10. Plaintiffs counter that notwithstanding the rescission of Executive Order N-33-20, they remain under the threat of reinstatement of the prior restrictions and therefore their claims are not moot under the voluntary cessation doctrine. Pls.’ Opp’n at 3-7. As explained below, the Court agrees with Plaintiffs. While Defendants have rescinded the challenged orders, “it remains the case that the only certainty about the future course of this pandemic is uncertainty.” Jones v. Cuomo, 20 Civ. 4898 (KPF), 2021 WL 2269551, at *5 (S.D. N.Y. June 2, 2021) (internal quotation marks and citation omitted). As this Court has stated before: “While vaccinations are a promising development, the pandemic is not over. New variants and vaccine hesitancy make it plausible that Defendants may determine it necessary to reimpose restrictions.” Abshire v. Newsom, No 2:21-cv-00198-JAM-KJN, 2021 WL 3418678, at *4 (E.D. Cal. Aug. 5, 2021); see also BK Salons, LLC v. Newsom, No. 2:21-cv-00370-JAM-JDP, 2021 WL 3418724, at *3 (E.D. Cal. Aug. 5, 2021) (noting “Defendants’ response to this unprecedented pandemic has necessarily been ever-evolving [b]ut its ever-evolving nature gives the Court pause… it is therefore conceivable that Defendants may need to reimpose restrictions.”) Similarly here, Defendants have not met their burden to show “the challenged conduct cannot reasonably be expected to reoccur.” Rosebrock, 745 F.3d at 972. /// Defendants’ citations to non-binding, out-of-circuit authority do not persuade the Court otherwise. Defs.’ Mot. at 10 (citing to Ramsek v. Beshear, 989 F.3d 494, 499-500 (6th Cir. 2021); Herndon v. Little, No. 1:20-cv-00205-DCN, 2021 WL 66657, at *5 (D. Idaho Jan. 7, 2021); and Fontana v. Cantrell, et al., No. CV 21-326, 2021 WL 2514682, at *2 (E.D. La. June 17, 2021)). Indeed, the only binding authority specifically concerning challenges to COVID-19 orders that Defendants bring forward – Tandon v. Newsom, 141 S.Ct. 1294, 1297 (2021) – cuts against a finding of mootness. See Defs.’ Mot. at 7. In Tandon, the Supreme Court counseled that “even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case” where plaintiffs “remain under constant threat that government officials will use their power to reinstate the challenged restrictions.” 141 S.Ct. at 1297 (internal quotation marks and citations omitted). So too here. Plaintiffs remain under threat that Defendants will reinstate the challenged restrictions as the COVID-19 pandemic persists. Defendants raise a final argument that this case is moot under Los Angeles v. Davis, 440 U.S. 625 (1979). Defs.’ Mot. at 8. However, the Court agrees with Plaintiffs that this case is readily distinguishable. Pls.’ Opp’n at 5-6. Plaintiffs in Davis challenged a Los Angeles County Fire Department hiring procedure used to fill a temporary emergency shortage of firefighters. 440 U.S. at 627. The Supreme Court concluded the challenge to this procedure had become moot during the pendency of the litigation. Id. Specifically, the Court explained the conditions which gave rise to the procedure “were unique, are no longer present and unlikely to recur” because the Department had successfully instituted a new hiring procedure. Id. at 632. As Plaintiffs argue, the facts in that case “an interim hiring freeze – caused by a lawsuit against the county’s previous hiring scheme” are a far cry from the facts here. Pls.’ Opp’n at 6. A temporary hiring shortage is simply not analogous to the “unpredictable” pandemic conditions here “where COVID-19- and its variants – continue to develop and new COVID cases and deaths persist.” Id. For all of these reasons, the Court finds the voluntary cessation exception applies and Plaintiffs’ claims are not moot.3 Accordingly, Defendants’ motion to dismiss is DENIED without prejudice to refile if any guidance from the Ninth Circuit becomes available. In the event of such intervening Ninth Circuit authority, the parties are directed to file a notice of supplemental authority. C. Plaintiffs’ Motion to Amend Plaintiffs move to file a first amended complaint. See Pls.’ Mot. at 3-5. Specifically, Plaintiffs seek to: (1) add a request for compensatory and nominal damages, (2) remove the state court claims that the Court dismissed on July 14, 2020, and (3) update three of the State Defendants pursuant to Federal Rule of Civil Procedure 25(d). Id. at 3. ///

3 As the Court finds the voluntary cessation exception applies, it does not reach Defendants’ additional argument regarding declaratory relief. See Defs.’ Mot. at 11-12. After the Court has filed a pretrial scheduling order, a party’s motion to amend must satisfy Rule 16(b)’s “good cause” requirement. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294–95 (9th Cir. 2000) (explaining that where the Court has entered a scheduling order, a request to amend the pleadings is no longer governed by Rule 15; rather, Rule 16 controls.) This requirement primarily looks to “the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. “[T]he existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion.” Id. But, unlike the Rule 15 analysis, “the focus of the [Rule 16] inquiry is upon the moving party’s reasons for seeking modification.” Id. If the “[moving] party was not diligent, the inquiry should end.” Id. Here, the Court filed its pretrial scheduling order in August 2020, see Scheduling Order, ECF No. 52, long before Plaintiffs filed their motion to amend in July 2021, see Pls.’ Mot. That order clearly states: “no further . . . amendments to the pleadings is permitted except with leave of court, good cause having been shown.” Scheduling Order at 1. Both sides overlook the Rule 16(b) question, and only analyze the Rule 15(a) factors. However, given the Rule 15(a) factors require consideration of undue delay and prejudice, the parties’ arguments lend themselves sufficiently well to a Rule 16(b) analysis. First, the Court GRANTS Plaintiffs’ motion with respect to removing the dismissed state court claims and to updating three of the State Defendants under Rule 25(d). Defendants do not oppose either of these requests; rather, they oppose only the addition of damages claims. See generally Defs.’ Opp’n. With respect to the addition of damages claims, Plaintiffs contend they “were not dilatory in that Executive Order N-33-20 was finally revoked on June 11, 2021.” Pls.’ Mot. at 4. They further explain “the initial decision to forego including a claim for damages was due to the urgent need for injunctive relief.” Id. “Now that the emergency has subsided, Plaintiffs wish to pursue damages.” Id. at 5. Defendants counter that “even if Plaintiffs had good reason to focus exclusively on injunctive relief at the outset, this does not explain why Plaintiffs then delayed more than a year in bringing a motion to add a claim for damages.” Defs.’ Opp’n at 7. The Court agrees. Plaintiffs do not contend that their motion to add a money damages claim stems from any newly discovered facts. Id. Indeed, as Defendants point out, the damages claims are based on the same causes of action in the original complaint. Defs.’ Opp’n at 4-5. Plaintiffs complain that “Defendants repeatedly cite the amount of time between Plaintiffs’ initial complaint and motion to amend in attempting to have the motion denied.” Pls.’ Reply at 5. But that is precisely what Rule 16 requires the Court to focus on: diligence of the party seeking amendment. Plaintiffs’ year delay in seeking to add these damages claims is not diligent. See Legaspi v. JHPDE Finance I, LLC, Case No. 2:20- cv-02945-ODW (SKx), 2021 WL 1979033, at *2 (C.D. Cal. May 18, 2021) (“the [Rule 16] good cause standard typically will not be met where the party seeking [modification] has been aware of the eee mE EI EI III I IID RISD EIEIO IE OSE IEE IE, ES eee

facts and theories supporting amendment since the inception of the action.”) Plaintiffs have not been diligent in seeking to add their damages claims. As a result, they fail to show “good cause” under Rule 16(b). Under Johnson, the inquiry properly ends there. See 975 F.2d at 609 (instructing if the “[moving] party was not diligent, the inguiry should end.”) Accordingly, the Court need not address whether the amendment to the complaint is proper under Rule 15 and in particular the parties’ arguments about whether amendment would be futile. See Defs.’ Opp’n at 5- 6; Pls.’ Reply at 3. Plaintiffs’ request to add compensatory and nominal damages is DENIED. For the reasons set forth above, the Court DENIES Defendants’ Motion to Dismiss and GRANTS in part and DENIES in part Plaintiffs’ motion to amend. Plaintiffs shall file their first amended complaint on the docket within twenty days of this order. Defendants’ responsive pleadings are due twenty days thereafter. Dated: October 4, 2021 ke Me teiren staves odermacr 7008 10