Givens et al v. Newsom et al

Filing 86

ORDER signed by District Judge John A. Mendez on 10/4/2021 DENYING 77 Motion to Dismiss and GRANTING IN PART AND DENYING IN PART 79 Motion to Amend the Complaint. Plaintiffs shall file their first amended complaint on the docket within 20 days of this order. Defendants' responsive pleadings are due 20 days thereafter.(Tupolo, A)

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Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 1 of 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 8 9 10 RON GIVENS, an individual; CHRISTINE BISH, an individual, 11 12 Plaintiffs, 13 v. 14 GAVIN NEWSOM, in his capacity as Governor of California; et al., 15 16 No. 2:20-cv-00852-JAM-CKD ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO AMEND Defendants. 17 Ron Givens and Christine Bish (“Plaintiffs”) bring this 18 19 action challenging California’s response to the Coronavirus 20 Disease 2019 (“COVID-19”) on First Amendment grounds. 21 Compl., ECF No. 1. 22 Gavin Newsom, Rob Bonta, Amanda Ray, and Tomás Aragón 23 (“Defendants”) filed a motion to dismiss.2 24 1 25 26 27 28 Before the Court are two motions.1 See First, See Defs.’ Mot., ECF 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). 1 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 2 of 10 1 No. 77. Plaintiffs opposed this motion. 2 No. 81. Defendants replied. 3 Second, Plaintiffs filed a motion to amend. 4 No.79. 5 ECF No. 80. 6 See Pls.’ Opp’n., ECF See Defs.’ Reply, ECF No. 83. See Pls.’ Mot., ECF Defendants opposed Plaintiffs’ motion. Plaintiffs replied. See Defs.’ Opp’n, See Pls.’ Reply, ECF No. 82. After consideration of the parties’ briefing on the motions 7 and relevant legal authority, the Court DENIES Defendants’ motion 8 to dismiss and GRANTS in part and DENIES in part Plaintiffs’ 9 motion to amend. 10 11 I. 12 BACKGROUND The parties are familiar with the factual background of this 13 case—it is set forth in the complaint, the parties’ briefings, 14 and the Court’s prior order. 15 No. 18. 16 here. 17 See Order Denying TRO at 2-4, ECF The Court therefore does not restate the background Defendants previously moved to dismiss the complaint in June 18 2020, arguing inter alia that Plaintiffs’ claims were rendered 19 moot by changes to the State’s public health directives. 20 Defs.’ Prior Mot. at 5-7, ECF No. 33. 21 motion, finding Defendants had not met their burden to show the 22 ban on events at the Capitol was not reasonably likely to recur. 23 See Transcript from July 14, 2020 Hearing at 15-18, ECF No. 45. See The Court denied the 24 According to Defendants, “the landscape surrounding the 25 COVID-19 pandemic in California . . . has shifted sharply” in the 26 year since this Court denied their prior motion. 27 1. 28 grounds. Defs.’ Mot. at Thus, they now renew their motion to dismiss on mootness See generally Defs. Mot. 2 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 3 of 10 1 II. OPINION 2 A. Judicial Notice 3 Defendants request the Court take judicial notice of nine 4 exhibits: (1) the Governor’s Executive Order N-07-21; (2) the 5 Governor’s Executive Order N-08-21; (3) the “California Vaccine 6 Progress Data” from July 7, 2021; (4) the California Highway 7 Patrol’s (“CHP”) website “State Capitol Events-Home” page; 8 (5) the Governor’s March 4, 20220 Proclamation of a State 9 Emergency; (6) the Governor’s Executive Order N-33-20; (7) the 10 California Department of Public Health’s (“CDPH”) website 11 “Counties Statewide Can Reopen Places of Worship for Religious 12 Services and Retail Stores” page; (8) the CDPH’s website 13 “California Public Health Officials Provide COVID-19 Update” 14 page; and (9) the “Tracking COVID-19 in California” webpage from 15 July 7, 2021. 16 77. 17 See Defs.’ Req. for Jud. Notice (“RFJN”), ECF No. All of the above exhibits are matters of public record and 18 therefore proper subjects of judicial notice. See Lee v. City 19 of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 20 the Court GRANTS Defendants’ request for judicial notice. 21 However, the Court takes judicial notice only of the existence 22 of these documents and declines to take judicial notice of their 23 substance, including any disputed or irrelevant facts within 24 them. Accordingly, Lee, 250 F.3d at 690. 25 B. Defendants’ 12(b)(1) Motion 26 In their motion, Defendants argue the Court lacks subject 27 matter jurisdiction because Plaintiffs’ claims are moot. 28 Defs.’ Mot. at 5-11. 3 See Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 4 of 10 1 A defendant may move to dismiss for lack of subject matter 2 jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of 3 Civil Procedure. 4 has moved to dismiss for lack of subject-matter jurisdiction 5 under Rule 12(b)(1), the opposing party bears the burden of 6 establishing the court’s jurisdiction. 7 Life Ins. Co., 511 U.S. 375, 377 (1994). 8 9 See Fed. R. Civ. P. 12(b)(1). Once a party See Kokkonen v. Guardian “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues 10 presented are no longer ‘live’ or the parties lack a legally 11 cognizable interest in the outcome.” 12 F.3d 963, 971 (9th Cir. 2014) (internal citations omitted). 13 However, voluntary cessation of challenged conduct does not 14 necessarily render a case moot. 15 for mootness would permit a resumption of the challenged conduct 16 as soon as the case is dismissed.” 17 government entity is acting in good faith when it changes its 18 policy. 19 where the new policy could be easily abandoned or altered in the 20 future.” 21 party asserting mootness bears a “heavy burden” to show that 22 “the challenged conduct cannot reasonably be expected to 23 reoccur.” 24 Id. Rosebrock v. Mathis, 745 Id. This is because “dismissal Id. Courts presume that a But courts “are less inclined to find mootness Id. at 972 (internal citation omitted). Finally, the Id. Defendants argue Plaintiffs’ claims for injunctive and 25 declaratory relief are moot because the State’s current public 26 health directives do not prohibit outdoor protests or limit the 27 number of participants at protests. 28 Defendants further contend the voluntary cessation exception to 4 Defs.’ Mot. at 5–6. Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 5 of 10 1 mootness does not apply because a ban on protest permits is not 2 reasonably likely to occur. 3 contention, they emphasize that Executive Order N-33-20 has now 4 been rescinded. 5 notwithstanding the rescission of Executive Order N-33-20, they 6 remain under the threat of reinstatement of the prior 7 restrictions and therefore their claims are not moot under the 8 voluntary cessation doctrine. 9 below, the Court agrees with Plaintiffs. 10 Id. at 10. Id. at 6-11. In support of this Plaintiffs counter that Pls.’ Opp’n at 3-7. As explained While Defendants have rescinded the challenged orders, “it 11 remains the case that the only certainty about the future course 12 of this pandemic is uncertainty.” 13 (KPF), 2021 WL 2269551, at *5 (S.D. N.Y. June 2, 2021) (internal 14 quotation marks and citation omitted). 15 before: “While vaccinations are a promising development, the 16 pandemic is not over. 17 plausible that Defendants may determine it necessary to reimpose 18 restrictions.” 19 WL 3418678, at *4 (E.D. Cal. Aug. 5, 2021); see also BK Salons, 20 LLC v. Newsom, No. 2:21-cv-00370-JAM-JDP, 2021 WL 3418724, at *3 21 (E.D. Cal. Aug. 5, 2021) (noting “Defendants’ response to this 22 unprecedented pandemic has necessarily been ever-evolving [b]ut 23 its ever-evolving nature gives the Court pause… it is therefore 24 conceivable that Defendants may need to reimpose restrictions.”) 25 Similarly here, Defendants have not met their burden to show “the 26 challenged conduct cannot reasonably be expected to reoccur.” 27 Rosebrock, 745 F.3d at 972. 28 /// Jones v. Cuomo, 20 Civ. 4898 As this Court has stated New variants and vaccine hesitancy make it Abshire v. Newsom, No 2:21-cv-00198-JAM-KJN, 2021 5 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 6 of 10 1 Defendants’ citations to non-binding, out-of-circuit 2 authority do not persuade the Court otherwise. 3 10 (citing to Ramsek v. Beshear, 989 F.3d 494, 499-500 (6th Cir. 4 2021); Herndon v. Little, No. 1:20-cv-00205-DCN, 2021 WL 66657, 5 at *5 (D. Idaho Jan. 7, 2021); and Fontana v. Cantrell, et al., 6 No. CV 21-326, 2021 WL 2514682, at *2 (E.D. La. June 17, 2021)). 7 Indeed, the only binding authority specifically concerning 8 challenges to COVID-19 orders that Defendants bring forward – 9 Tandon v. Newsom, 141 S.Ct. 1294, 1297 (2021) – cuts against a 10 finding of mootness. 11 Supreme Court counseled that “even if the government withdraws 12 or modifies a COVID restriction in the course of litigation, 13 that does not necessarily moot the case” where plaintiffs 14 “remain under constant threat that government officials will use 15 their power to reinstate the challenged restrictions.” 16 S.Ct. at 1297 (internal quotation marks and citations omitted). 17 So too here. 18 will reinstate the challenged restrictions as the COVID-19 19 pandemic persists. 20 See Defs.’ Mot. at 7. Defs.’ Mot. at In Tandon, the 141 Plaintiffs remain under threat that Defendants Defendants raise a final argument that this case is moot 21 under Los Angeles v. Davis, 440 U.S. 625 (1979). Defs.’ Mot. at 22 8. 23 readily distinguishable. 24 Davis challenged a Los Angeles County Fire Department hiring 25 procedure used to fill a temporary emergency shortage of 26 firefighters. 27 challenge to this procedure had become moot during the pendency 28 of the litigation. However, the Court agrees with Plaintiffs that this case is Pls.’ Opp’n at 5-6. 440 U.S. at 627. Id. Plaintiffs in The Supreme Court concluded the Specifically, the Court explained the 6 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 7 of 10 1 conditions which gave rise to the procedure “were unique, are no 2 longer present and unlikely to recur” because the Department had 3 successfully instituted a new hiring procedure. 4 Plaintiffs argue, the facts in that case “an interim hiring 5 freeze – caused by a lawsuit against the county’s previous 6 hiring scheme” are a far cry from the facts here. 7 at 6. 8 the “unpredictable” pandemic conditions here “where COVID-19- 9 and its variants – continue to develop and new COVID cases and 10 Id. at 632. As Pls.’ Opp’n A temporary hiring shortage is simply not analogous to deaths persist.” Id. 11 For all of these reasons, the Court finds the voluntary 12 cessation exception applies and Plaintiffs’ claims are not moot.3 13 Accordingly, Defendants’ motion to dismiss is DENIED without 14 prejudice to refile if any guidance from the Ninth Circuit 15 becomes available. 16 Circuit authority, the parties are directed to file a notice of 17 supplemental authority. In the event of such intervening Ninth 18 C. Plaintiffs’ Motion to Amend 19 Plaintiffs move to file a first amended complaint. See 20 Pls.’ Mot. at 3-5. Specifically, Plaintiffs seek to: (1) add a 21 request for compensatory and nominal damages, (2) remove the 22 state court claims that the Court dismissed on July 14, 2020, 23 and (3) update three of the State Defendants pursuant to Federal 24 Rule of Civil Procedure 25(d). 25 /// Id. at 3. 26 27 28 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. 7 3 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 8 of 10 1 After the Court has filed a pretrial scheduling order, a 2 party’s motion to amend must satisfy Rule 16(b)’s “good cause” 3 requirement. 4 604, 607-08 (9th Cir. 1992); see also Coleman v. Quaker Oats 5 Co., 232 F.3d 1271, 1294–95 (9th Cir. 2000) (explaining that 6 where the Court has entered a scheduling order, a request to 7 amend the pleadings is no longer governed by Rule 15; rather, 8 Rule 16 controls.) 9 diligence of the party seeking the amendment.” See Johnson v. Mammoth Recreations, Inc., 975 F.2d This requirement primarily looks to “the Johnson, 975 10 F.2d at 609. 11 party opposing the modification might supply additional reasons 12 to deny a motion.” 13 focus of the [Rule 16] inquiry is upon the moving party’s 14 reasons for seeking modification.” 15 was not diligent, the inquiry should end.” 16 “[T]he existence or degree of prejudice to the Id. But, unlike the Rule 15 analysis, “the Id. If the “[moving] party Id. Here, the Court filed its pretrial scheduling order in 17 August 2020, see Scheduling Order, ECF No. 52, long before 18 Plaintiffs filed their motion to amend in July 2021, see Pls.’ 19 Mot. 20 the pleadings is permitted except with leave of court, good 21 cause having been shown.” 22 overlook the Rule 16(b) question, and only analyze the Rule 23 15(a) factors. 24 consideration of undue delay and prejudice, the parties’ 25 arguments lend themselves sufficiently well to a Rule 16(b) 26 analysis. That order clearly states: “no further . . . amendments to Scheduling Order at 1. Both sides However, given the Rule 15(a) factors require 27 First, the Court GRANTS Plaintiffs’ motion with respect to 28 removing the dismissed state court claims and to updating three 8 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 9 of 10 1 of the State Defendants under Rule 25(d). Defendants do not 2 oppose either of these requests; rather, they oppose only the 3 addition of damages claims. See generally Defs.’ Opp’n. 4 With respect to the addition of damages claims, Plaintiffs 5 contend they “were not dilatory in that Executive Order N-33-20 6 was finally revoked on June 11, 2021.” 7 further explain “the initial decision to forego including a 8 claim for damages was due to the urgent need for injunctive 9 relief.” Id. Pls.’ Mot. at 4. They “Now that the emergency has subsided, Plaintiffs 10 wish to pursue damages.” 11 “even if Plaintiffs had good reason to focus exclusively on 12 injunctive relief at the outset, this does not explain why 13 Plaintiffs then delayed more than a year in bringing a motion to 14 add a claim for damages.” 15 Id. at 5. Defendants counter that Defs.’ Opp’n at 7. The Court agrees. Plaintiffs do not contend that their motion to add a money 16 damages claim stems from any newly discovered facts. Id. 17 Indeed, as Defendants point out, the damages claims are based on 18 the same causes of action in the original complaint. 19 Opp’n at 4-5. 20 cite the amount of time between Plaintiffs’ initial complaint and 21 motion to amend in attempting to have the motion denied.” 22 Reply at 5. 23 Court to focus on: diligence of the party seeking amendment. 24 Plaintiffs’ year delay in seeking to add these damages claims is 25 not diligent. See Legaspi v. JHPDE Finance I, LLC, Case No. 2:20- 26 cv-02945-ODW (SKx), 2021 WL 1979033, at *2 (C.D. Cal. May 18, 27 2021) (“the [Rule 16] good cause standard typically will not be 28 met where the party seeking [modification] has been aware of the Defs.’ Plaintiffs complain that “Defendants repeatedly Pls.’ But that is precisely what Rule 16 requires the 9 Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 10 of 10 1 facts and theories supporting amendment since the inception of 2 the action.”) 3 Plaintiffs have not been diligent in seeking to add their 4 damages claims. As a result, they fail to show “good cause” 5 under Rule 16(b). 6 there. 7 was not diligent, the inquiry should end.”) 8 Court need not address whether the amendment to the complaint is 9 proper under Rule 15 and in particular the parties’ arguments Under Johnson, the inquiry properly ends See 975 F.2d at 609 (instructing if the “[moving] party 10 about whether amendment would be futile. 11 Accordingly, the 6; Pls.’ Reply at 3. 12 13 See Defs.’ Opp’n at 5- Plaintiffs’ request to add compensatory and nominal damages is DENIED. 14 15 16 III. ORDER For the reasons set forth above, the Court DENIES 17 Defendants’ Motion to Dismiss and GRANTS in part and DENIES in 18 part Plaintiffs’ motion to amend. 19 first amended complaint on the docket within twenty days of this 20 order. 21 thereafter. Plaintiffs shall file their Defendants’ responsive pleadings are due twenty days 22 IT IS SO ORDERED. 23 Dated: October 4, 2021 24 25 26 27 28 10

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