Hoang v. Bonta

• Court: District Court, E.D. California
• Decided: April 2, 2024
• Docket: 2:22-cv-02147
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11

12 TRACY HØEG, M.D., Ph.D.; RAM No. 2:22-cv-01980 WBS AC DURISETI, M.D., Ph.D.; AARON 13 KHERIATY, M.D.; PETE MAZOLEWSKI, M.D.; and AZADEH 14 KHATIBI, M.D., M.S., M.P.H., MEMORANDUM AND ORDER RE: 15 Plaintiffs, MOTIONS TO DISMISS

16 v. 17 GAVIN NEWSOM, Governor of the State of California, in his 18 official capacity; KRISTINA LAWSON, President of the 19 Medical Board of California, in her official capacity; RANDY 20 HAWKINS, M.D., Vice President of the Medical Board of 21 California, in his official capacity; LAURIE ROSE LUBIANO, 22 Secretary of the Medical Board of California, in her official 23 capacity; MICHELLE ANNE BHOLAT, M.D., M.P.H., DAVID E. RYU, 24 RYAN BROOKS, JAMES M. HEALZER, M.D., ASIF MAHMOOD, M.D., 25 NICOLE A. JEONG, RICHARD E. THORP, M.D., VELING TSAI, M.D., 26 and ESERICK WATKINS, members of the Medical Board of 27 California, in their official capacities; and ROB BONTA, 28 Attorney General of California, 1 in his official capacity;

2 Defendants. 3

4 LETRINH HOANG, D.O.; PHYSICIANS No. 2:22-cv-02147 WBS AC FOR INFORMED CONSENT, a not-for 5 profit organization; and CHILDREN’S HEALTH DEFENSE, 6 CALIFORNIA CHAPTER, a California Nonprofit 7 Corporation; 8 Plaintiffs, 9 v. 10 ROB BONTA, in his official capacity as Attorney General of 11 California; and ERIKA CALDERON, in her official capacity as 12 Executive Officer of the Osteopathic Medical Board of 13 California;

14 Defendants. 15 16 ----oo0oo---- 17 Plaintiffs brought these now-related § 1983 actions 18 challenging the constitutionality of California Business & 19 Professions Code § 2270, also referred to as Assembly Bill (“AB”) 20 2098, which made it “unprofessional conduct” for doctors to 21 “disseminate misinformation or disinformation related to COVID- 22 19.” The court preliminarily enjoined enforcement of AB 2098 23 against the plaintiffs on January 25, 2023. (Høeg Docket No. 35; 24 Hoang Docket No. 30.) The California Legislature subsequently 25 repealed AB 2098, effective January 1, 2024. See Cal. Senate 26 Bill 815 (Sept. 30, 2023). 27 Before the court are defendants’ motions to dismiss. 28 (Høeg Docket No. 63; Hoang Docket No. 52.) The Høeg plaintiffs 1 oppose dismissal (Høeg Docket No. 65), while the Hoang plaintiffs 2 do not (Hoang Docket Nos. 54-55). 3 I. Mootness 4 Defendants argue that the repeal of AB 2098 moots the 5 plaintiffs’ claims in both actions insofar as they seek 6 declaratory and injunctive relief. “A private defendant’s 7 voluntary cessation of challenged conduct does not necessarily 8 render a case moot because, if the case were dismissed as moot, 9 the defendant would be free to resume the conduct.” Bd. of Tr. 10 of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1198 11 (9th Cir. 2019). However, in the Ninth Circuit, courts “assume 12 that the repeal, amendment, or expiration of legislation will 13 render an action challenging the legislation moot, unless there 14 is a reasonable expectation that the legislative body will 15 reenact the challenged provision or one similar to it.” Id. at 16 1199. “The party challenging the presumption of mootness need . 17 . . only [show] that there is a reasonable expectation of 18 reenactment. But a determination that such a reasonable 19 expectation exists must be founded in the record . . . rather 20 than on speculation alone.” Id. 21 On February 29, 2024, the Ninth Circuit issued an 22 opinion in McDonald v. Lawson, 94 F.4th 864 (9th Cir. 2024), a 23 consolidated appeal involving two cases challenging AB 2098 from 24 the Central and Southern Districts of California. The Ninth 25 Circuit held that the repeal of AB 2098 mooted the actions and 26 remanded to the district courts with instructions to dismiss the 27 cases. See id. at 870. 28 As the Ninth Circuit held, “[b]ecause there is no 1 indication that California is reasonably likely to reenact AB 2 2098 or anything substantially similar to it, and because the 3 possibility of California enforcing AB 2098 following its repeal 4 is at best remote, there is no longer an ongoing case or 5 controversy.” Id. (internal quotation marks and citation 6 omitted). In coming to this conclusion, the Ninth Circuit relied 7 upon a statement by the Executive Director of the Medical Board 8 that its employees would not enforce AB 2098 and pointed to the 9 lack of evidence of potential reenactment in the record. See id. 10 at 869-70. 11 Despite the Ninth Circuit’s clear holding that the 12 repeal of AB 2098 moots challenges to that law, the Høeg 13 plaintiffs argue that McDonald does not dictate the same outcome 14 here because they raise arguments that were not before the Ninth 15 Circuit. But like the McDonald plaintiffs, the plaintiffs here 16 have failed to overcome the presumption of mootness, as they 17 present no allegations or evidence suggesting that the California 18 Legislature might reenact AB 2098 or similar legislation. See 19 id. at 869-70. 20 The Høeg plaintiffs point to a medical board proceeding 21 allegedly brought against a physician for advising patients not 22 to receive a COVID-19 vaccine as evidence that there is a risk of 23 enforcement or reenactment of AB 2098. (See Hoang Docket No. 39 24 at 21, ¶ 30.) This proceeding apparently commenced in June 2023. 25 (See id.) Yet there is no indication –- and plaintiffs do not 26 argue –- that this disciplinary action was initiated pursuant to 27 AB 2098. Indeed, plaintiffs’ counsel in the Hoang matter has 28 filed a separate action challenging such disciplinary actions as 1 brought under the medical boards’ pre-existing statutory 2 authority. (See Kory v. Bonta, 2:24-cv-1 WBS AC, Docket No. 1.) 3 Further, the actions of administrative agencies like the Medical 4 Board do not provide evidence that the Legislature intends to 5 reenact a similar statute. The possibility that the Board may 6 discipline doctors for “disseminating misinformation” under 7 preexisting statutory authority (as opposed to a statute brought 8 to reenact the provisions of AB 2098) does not support a 9 challenge to AB 2098. Cf. Ne. Fla. Chapter of Associated Gen. 10 Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 11 662 (1993) (action was not moot where challenged ordinance had 12 been repealed, but city subsequently enacted a similar 13 ordinance). 14 Plaintiffs also point to a statement allegedly made by 15 Assemblyman Evan Low, a sponsor of AB 2098, that following the 16 repeal of the law, “the Medical Board of California will continue 17 to maintain the authority to hold medical licensees accountable 18 for deviating from the standard of care and misinforming their 19 patients about COVID-19 treatments.” (Høeg Opp’n (Docket No. 65) 20 at 6; Høeg Suppl. Brief (Høeg Docket No. 53) at 8.) This 21 purported statement does not indicate any legislative intent to 22 reenact AB 2098. On the contrary, it would appear therefrom that 23 Mr. Low has no intention of reintroducing similar legislation, 24 instead referring to the Medical Board’s preexisting statutory 25 authority. See Cal. Bus. & Prof. Code § 2234(c) (“departure from 26 the applicable standard of care” is a basis for discipline by the 27 Medical Boards). Potential disciplinary actions brought under § 28 2234 -- an entirely different statute that predates AB 2098 -- 1 cannot sustain a challenge to AB 2098, particularly because the 2 court’s prior order showed the peculiar language of AB 2098 to be 3 central to its unconstitutionality. See Høeg v. Newsom, 652 F. 4 Supp. 3d 1172, 1185-91 (E.D. Cal. 2023). 5 Finally, plaintiffs rely on West Virginia v. 6 Environmental Protection Agency, 597 U.S. 697 (2022). There, the 7 Supreme Court held that a voluntary decision by the federal 8 Environmental Protection Agency (“EPA”) not to enforce a 9 challenged regulation did not moot the case because the EPA had 10 “vigorously defend[ed]” the legality of the challenged regulation 11 and “nowhere suggest[ed] that . . . it w[ould] not reimpose” a 12 similar measure. See id. at 718–20 (quotation marks omitted). 13 Plaintiffs argue that the instant case is analogous because 14 defendants have never conceded that AB 2098 is unconstitutional. 15 However, West Virginia v. EPA is inapposite (and, contrary to 16 plaintiffs’ argument, fully reconcilable with Glazing Health) 17 because it involved administrative agency action, the rulemaking 18 agency responsible for the voluntary cessation was a party to the 19 litigation, and there was evidence that a new regulation was 20 forthcoming. See id. at 718–20. Further, here, the only 21 evidence in the record of legislative intent -– the statement 22 from Assemblyman Low, discussed above -- indicates that the 23 Legislature does not intend to reintroduce similar legislation. 24 Accordingly, the court concludes that plaintiffs’ 25 claims for declaratory and injunctive relief are moot and must be 26 dismissed. 27 II. Availability of Damages 28 The court next addresses the viability of plaintiffs’ 1 request for nominal damages, which is not mooted by the repeal of 2 AB 2098 to the extent it seeks relief for constitutional 3 violations that occurred while the law was in effect. See 4 Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797, 801–02 (2021) (“a 5 request for nominal damages satisfies the redressability element 6 of standing where a plaintiff’s claim is based on a completed 7 violation of a legal right” and thus presents a live controversy, 8 even where the corresponding claim for injunctive relief is moot 9 due to voluntary cessation); Collins v. Yellen, 141 S. Ct. 1761, 10 1780 (2021) (holding that constitutional claim was not entirely 11 moot following repeal of challenged regulation because plaintiffs 12 sought “retrospective relief”). 13 Defendants assert that they are immune from the Høeg 14 plaintiffs’ request for nominal damages to the extent they are 15 sued in their official capacity.1 The Høeg plaintiffs argue that 16 defendants have waived the sovereign immunity defense by failing 17 to timely raise it. See In re Bliemeister, 296 F.3d 858, 861 18 (9th Cir. 2002) (sovereign immunity is an “affirmative defense” 19 that “may be forfeited where the state fails to assert it,” 20 either through a “clear declaration that it intends to submit 21 itself to [federal] jurisdiction” or “conduct that is 22 incompatible with an intent to preserve that immunity”) 23 (quotation marks omitted). The court disagrees. 24 The only other motion decided by the court thus far was 25 plaintiffs’ motion for preliminary injunction. Defendants had no 26 reason to raise the issue of immunity from money damages at that 27 1 The Hoang plaintiffs do not seek damages. (See Hoang 28 Docket No. 1 at 19.) 1 juncture, as the motion only pertained to injunctive relief, and 2 raising sovereign immunity would not have disposed of the case. 3 And defendants have yet to file an answer to the complaint 4 (pursuant to the parties’ stipulation, see Høeg Docket No. 41). 5 Defendants therefore have timely raised the sovereign immunity 6 defense, as the instant motion is the first pleading filed by 7 defendants in which it would be appropriate to raise the 8 sovereign immunity defense.2 See Aholelei v. Dep’t of Pub. 9 Safety, 488 F.3d 1144, 1148 (9th Cir. 2007) (state did not 10 forfeit sovereign immunity defense where it raised it at first 11 opportunity, in answer to complaint, and did not cause any 12 delay); cf. In re Bliemeister, 296 F.3d at 862 (state forfeited 13 sovereign immunity defense by failing to assert it in motion for 14 summary judgment). 15 As the Høeg plaintiffs appear to concede, damages are 16 not available from state officials sued in their official 17 capacity under § 1983. See Hafer v. Melo, 502 U.S. 21, 22–23 18 (1991) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 19 71 (1989)) (“state officials ‘acting in their official 20 capacities’ are outside the class of ‘persons’ subject to 21 liability under . . . § 1983”); Platt v. Moore, 15 F.4th 895, 910 22 (9th Cir. 2021) (quoting Kentucky v. Graham, 473 U.S. 159, 166–69 23

24 2 The court also sua sponte requested briefing on the issue of mootness stemming from the repeal of AB 2098, though 25 later decided to defer the issue pending the filing of a dispositive motion raising the issue. (See Høeg Docket Nos. 49, 26 58.) Defendants would have had no reason to raise the issue of 27 immunity from money damages in response to that order, yet did raise the issue when damages were brought up during oral argument 28 on that briefing. 1 (1985)) (“‘absent waiver by the State or valid congressional 2 override,’ state sovereign immunity protects state officer 3 defendants sued in federal court in their official capacities 4 from liability in damages, including nominal damages”). 5 Plaintiffs argue that they can nonetheless maintain a 6 claim for nominal damages against defendants in their individual 7 capacity. A claim for money damages against a state official in 8 his individual capacity must allege “conduct fairly attributable 9 to the officer himself.” See Alden v. Maine, 527 U.S. 706, 757 10 (1999); see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 11 2002) (“[i]n order for a person acting under color of state law 12 to be liable under section 1983 there must be a showing of 13 personal participation in the alleged rights deprivation”). 14 Here, there is no indication that AB 2098 was ever enforced. 15 There is therefore no basis to sue any of the Medical Board 16 defendants or the Attorney General in their individual capacity, 17 as they have not engaged in any conduct that violated the 18 plaintiffs’ rights. 19 As far as the court can see, the only affirmative 20 conduct by any defendant was Governor Gavin Newsom’s enactment of 21 AB 2098. However, a governor cannot be held liable for the 22 passage of a law, which is subject to absolute legislative 23 immunity. See Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998) 24 (“[a]bsolute legislative immunity attaches to all actions taken 25 in the sphere of legitimate legislative activity,” and “a 26 Governor’s signing or vetoing of a bill constitutes part of the 27 legislative process”) (quotation marks omitted). 28 When questioned about their proposal to amend the eee DE III IEE Om IRIE ONE IIE OO EIEIO IE ED eee

1 complaint at oral argument, plaintiffs’ counsel was unable to 2 explain to the court what facts they would allege to support a 3 claim against defendants in their individual capacity. Because 4 there does not appear to be any set of facts that plaintiffs 5 could allege to support a claim against defendants in their 6 individual capacity, the court will deny the Hgeg plaintiffs’ 7 request for leave to amend as futile. See Missouri ex rel. 8 Koster v. Harris, 847 F.3d 646p, 655-56 (9th Cir. 2017). 9 IT IS THEREFORE ORDERED that defendants’ motions to 10 | dismiss both actions (Hgeg Docket No. 63; Hoang Docket No. 52) 11 be, and the same hereby are, GRANTED. The pending motion for 12 summary judgment in the Hgeg matter (Hgeg Docket No. 48) is 13 DENIED AS MOOT. The Clerk of Court is directed to close both 14 cases. : - 15 | Dated: April 2, 2024 a ew A, hh WILLIAM B. SHUBB 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10