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)

Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 1 of 10
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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RON GIVENS, an individual;
CHRISTINE BISH, an
individual,

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Plaintiffs,

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v.

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GAVIN NEWSOM, in his capacity
as Governor of California; et
al.,

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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.

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Ron Givens and Christine Bish (“Plaintiffs”) bring this

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action challenging California’s response to the Coronavirus

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Disease 2019 (“COVID-19”) on First Amendment grounds.

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Compl., ECF No. 1.

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Gavin Newsom, Rob Bonta, Amanda Ray, and Tomás Aragón

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(“Defendants”) filed a motion to dismiss.2

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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).
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Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 2 of 10
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No. 77.

Plaintiffs opposed this motion.

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No. 81.

Defendants replied.

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Second, Plaintiffs filed a motion to amend.

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No.79.

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ECF No. 80.

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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

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and relevant legal authority, the Court DENIES Defendants’ motion

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to dismiss and GRANTS in part and DENIES in part Plaintiffs’

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motion to amend.

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I.

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BACKGROUND

The parties are familiar with the factual background of this

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case—it is set forth in the complaint, the parties’ briefings,

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and the Court’s prior order.

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No. 18.

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here.

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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

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2020, arguing inter alia that Plaintiffs’ claims were rendered

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moot by changes to the State’s public health directives.

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Defs.’ Prior Mot. at 5-7, ECF No. 33.

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motion, finding Defendants had not met their burden to show the

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ban on events at the Capitol was not reasonably likely to recur.

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See Transcript from July 14, 2020 Hearing at 15-18, ECF No. 45.

See

The Court denied the

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According to Defendants, “the landscape surrounding the

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COVID-19 pandemic in California . . . has shifted sharply” in the

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year since this Court denied their prior motion.

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1.

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grounds.

Defs.’ Mot. at

Thus, they now renew their motion to dismiss on mootness
See generally Defs. Mot.
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Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 3 of 10
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II.

OPINION

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A.

Judicial Notice

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Defendants request the Court take judicial notice of nine

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exhibits: (1) the Governor’s Executive Order N-07-21; (2) the

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Governor’s Executive Order N-08-21; (3) the “California Vaccine

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Progress Data” from July 7, 2021; (4) the California Highway

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Patrol’s (“CHP”) website “State Capitol Events-Home” page;

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(5) the Governor’s March 4, 20220 Proclamation of a State

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Emergency; (6) the Governor’s Executive Order N-33-20; (7) the

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California Department of Public Health’s (“CDPH”) website

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“Counties Statewide Can Reopen Places of Worship for Religious

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Services and Retail Stores” page; (8) the CDPH’s website

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“California Public Health Officials Provide COVID-19 Update”

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page; and (9) the “Tracking COVID-19 in California” webpage from

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July 7, 2021.

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77.

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See Defs.’ Req. for Jud. Notice (“RFJN”), ECF No.

All of the above exhibits are matters of public record and

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therefore proper subjects of judicial notice.

See Lee v. City

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of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

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the Court GRANTS Defendants’ request for judicial notice.

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However, the Court takes judicial notice only of the existence

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of these documents and declines to take judicial notice of their

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substance, including any disputed or irrelevant facts within

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them.

Accordingly,

Lee, 250 F.3d at 690.

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B.

Defendants’ 12(b)(1) Motion

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In their motion, Defendants argue the Court lacks subject

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matter jurisdiction because Plaintiffs’ claims are moot.

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Defs.’ Mot. at 5-11.
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See

Case 2:20-cv-00852-JAM-CKD Document 86 Filed 10/05/21 Page 4 of 10
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A defendant may move to dismiss for lack of subject matter

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jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of

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Civil Procedure.

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has moved to dismiss for lack of subject-matter jurisdiction

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under Rule 12(b)(1), the opposing party bears the burden of

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establishing the court’s jurisdiction.

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Life Ins. Co., 511 U.S. 375, 377 (1994).

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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

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presented are no longer ‘live’ or the parties lack a legally

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cognizable interest in the outcome.”

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F.3d 963, 971 (9th Cir. 2014) (internal citations omitted).

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However, voluntary cessation of challenged conduct does not

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necessarily render a case moot.

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for mootness would permit a resumption of the challenged conduct

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as soon as the case is dismissed.”

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government entity is acting in good faith when it changes its

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policy.

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where the new policy could be easily abandoned or altered in the

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future.”

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party asserting mootness bears a “heavy burden” to show that

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“the challenged conduct cannot reasonably be expected to

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reoccur.”

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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

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declaratory relief are moot because the State’s current public

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health directives do not prohibit outdoor protests or limit the

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number of participants at protests.

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Defendants further contend the voluntary cessation exception to
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Defs.’ Mot. at 5–6.

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mootness does not apply because a ban on protest permits is not

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reasonably likely to occur.

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contention, they emphasize that Executive Order N-33-20 has now

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been rescinded.

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notwithstanding the rescission of Executive Order N-33-20, they

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remain under the threat of reinstatement of the prior

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restrictions and therefore their claims are not moot under the

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voluntary cessation doctrine.

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below, the Court agrees with Plaintiffs.

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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

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remains the case that the only certainty about the future course

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of this pandemic is uncertainty.”

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(KPF), 2021 WL 2269551, at *5 (S.D. N.Y. June 2, 2021) (internal

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quotation marks and citation omitted).

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before: “While vaccinations are a promising development, the

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pandemic is not over.

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plausible that Defendants may determine it necessary to reimpose

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restrictions.”

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WL 3418678, at *4 (E.D. Cal. Aug. 5, 2021); see also BK Salons,

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LLC v. Newsom, No. 2:21-cv-00370-JAM-JDP, 2021 WL 3418724, at *3

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(E.D. Cal. Aug. 5, 2021) (noting “Defendants’ response to this

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unprecedented pandemic has necessarily been ever-evolving [b]ut

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its ever-evolving nature gives the Court pause… it is therefore

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conceivable that Defendants may need to reimpose restrictions.”)

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Similarly here, Defendants have not met their burden to show “the

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challenged conduct cannot reasonably be expected to reoccur.”

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Rosebrock, 745 F.3d at 972.

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///

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

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Defendants’ citations to non-binding, out-of-circuit

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authority do not persuade the Court otherwise.

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2021); Herndon v. Little, No. 1:20-cv-00205-DCN, 2021 WL 66657,

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at *5 (D. Idaho Jan. 7, 2021); and Fontana v. Cantrell, et al.,

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No. CV 21-326, 2021 WL 2514682, at *2 (E.D. La. June 17, 2021)).

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Indeed, the only binding authority specifically concerning

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challenges to COVID-19 orders that Defendants bring forward –

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Tandon v. Newsom, 141 S.Ct. 1294, 1297 (2021) – cuts against a

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finding of mootness.

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Supreme Court counseled that “even if the government withdraws

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or modifies a COVID restriction in the course of litigation,

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that does not necessarily moot the case” where plaintiffs

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“remain under constant threat that government officials will use

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their power to reinstate the challenged restrictions.”

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S.Ct. at 1297 (internal quotation marks and citations omitted).

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So too here.

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will reinstate the challenged restrictions as the COVID-19

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pandemic persists.

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See Defs.’ Mot. at 7.

Defs.’ Mot. at

In Tandon, the

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Plaintiffs remain under threat that Defendants

Defendants raise a final argument that this case is moot

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under Los Angeles v. Davis, 440 U.S. 625 (1979).

Defs.’ Mot. at

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readily distinguishable.

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Davis challenged a Los Angeles County Fire Department hiring

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procedure used to fill a temporary emergency shortage of

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firefighters.

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challenge to this procedure had become moot during the pendency

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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
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conditions which gave rise to the procedure “were unique, are no

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longer present and unlikely to recur” because the Department had

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successfully instituted a new hiring procedure.

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Plaintiffs argue, the facts in that case “an interim hiring

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freeze – caused by a lawsuit against the county’s previous

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hiring scheme” are a far cry from the facts here.

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at 6.

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the “unpredictable” pandemic conditions here “where COVID-19-

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and its variants – continue to develop and new COVID cases and

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Id. at 632.

As

Pls.’ Opp’n

A temporary hiring shortage is simply not analogous to

deaths persist.”

Id.

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For all of these reasons, the Court finds the voluntary

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cessation exception applies and Plaintiffs’ claims are not moot.3

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Accordingly, Defendants’ motion to dismiss is DENIED without

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prejudice to refile if any guidance from the Ninth Circuit

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becomes available.

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Circuit authority, the parties are directed to file a notice of

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supplemental authority.

In the event of such intervening Ninth

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C.

Plaintiffs’ Motion to Amend

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Plaintiffs move to file a first amended complaint.

See

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Pls.’ Mot. at 3-5.

Specifically, Plaintiffs seek to: (1) add a

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request for compensatory and nominal damages, (2) remove the

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state court claims that the Court dismissed on July 14, 2020,

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and (3) update three of the State Defendants pursuant to Federal

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Rule of Civil Procedure 25(d).

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///

Id. at 3.

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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.
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After the Court has filed a pretrial scheduling order, a

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party’s motion to amend must satisfy Rule 16(b)’s “good cause”

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requirement.

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604, 607-08 (9th Cir. 1992); see also Coleman v. Quaker Oats

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Co., 232 F.3d 1271, 1294–95 (9th Cir. 2000) (explaining that

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where the Court has entered a scheduling order, a request to

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amend the pleadings is no longer governed by Rule 15; rather,

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Rule 16 controls.)

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diligence of the party seeking the amendment.”

See Johnson v. Mammoth Recreations, Inc., 975 F.2d

This requirement primarily looks to “the
Johnson, 975

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F.2d at 609.

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party opposing the modification might supply additional reasons

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to deny a motion.”

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focus of the [Rule 16] inquiry is upon the moving party’s

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reasons for seeking modification.”

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was not diligent, the inquiry should end.”

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“[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

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August 2020, see Scheduling Order, ECF No. 52, long before

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Plaintiffs filed their motion to amend in July 2021, see Pls.’

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Mot.

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the pleadings is permitted except with leave of court, good

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cause having been shown.”

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overlook the Rule 16(b) question, and only analyze the Rule

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15(a) factors.

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consideration of undue delay and prejudice, the parties’

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arguments lend themselves sufficiently well to a Rule 16(b)

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analysis.

That order clearly states: “no further . . . amendments to

Scheduling Order at 1.

Both sides

However, given the Rule 15(a) factors require

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First, the Court GRANTS Plaintiffs’ motion with respect to

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removing the dismissed state court claims and to updating three
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of the State Defendants under Rule 25(d).

Defendants do not

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oppose either of these requests; rather, they oppose only the

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addition of damages claims.

See generally Defs.’ Opp’n.

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With respect to the addition of damages claims, Plaintiffs

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contend they “were not dilatory in that Executive Order N-33-20

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was finally revoked on June 11, 2021.”

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further explain “the initial decision to forego including a

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claim for damages was due to the urgent need for injunctive

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relief.”

Id.

Pls.’ Mot. at 4.

They

“Now that the emergency has subsided, Plaintiffs

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wish to pursue damages.”

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“even if Plaintiffs had good reason to focus exclusively on

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injunctive relief at the outset, this does not explain why

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Plaintiffs then delayed more than a year in bringing a motion to

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add a claim for damages.”

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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

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damages claim stems from any newly discovered facts.

Id.

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Indeed, as Defendants point out, the damages claims are based on

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the same causes of action in the original complaint.

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Opp’n at 4-5.

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cite the amount of time between Plaintiffs’ initial complaint and

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motion to amend in attempting to have the motion denied.”

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Reply at 5.

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Court to focus on: diligence of the party seeking amendment.

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Plaintiffs’ year delay in seeking to add these damages claims is

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not diligent. See Legaspi v. JHPDE Finance I, LLC, Case No. 2:20-

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cv-02945-ODW (SKx), 2021 WL 1979033, at *2 (C.D. Cal. May 18,

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2021) (“the [Rule 16] good cause standard typically will not be

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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

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facts and theories supporting amendment since the inception of

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the action.”)

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Plaintiffs have not been diligent in seeking to add their

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damages claims.

As a result, they fail to show “good cause”

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under Rule 16(b).

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there.

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was not diligent, the inquiry should end.”)

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Court need not address whether the amendment to the complaint is

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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

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about whether amendment would be futile.

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Accordingly, the

6; Pls.’ Reply at 3.

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See Defs.’ Opp’n at 5-

Plaintiffs’ request to add compensatory and nominal damages
is DENIED.

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III. ORDER
For the reasons set forth above, the Court DENIES

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Defendants’ Motion to Dismiss and GRANTS in part and DENIES in

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part Plaintiffs’ motion to amend.

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first amended complaint on the docket within twenty days of this

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order.

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thereafter.

Plaintiffs shall file their

Defendants’ responsive pleadings are due twenty days

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IT IS SO ORDERED.

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Dated: October 4, 2021

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