Calvary Chapel San Jose v. Cody, 20-cv-03794-BLF

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Decision Date18 March 2022
PartiesCALVARY CHAPEL SAN JOSE, et al., Plaintiffs, v. SARA CODY, et al., Defendants.
Docket Number20-cv-03794-BLF

CALVARY CHAPEL SAN JOSE, et al., Plaintiffs,

SARA CODY, et al., Defendants.

No. 20-cv-03794-BLF

United States District Court, N.D. California, San Jose Division

March 18, 2022


[RE: ECF NO. 121, 135]


This case challenges policies and orders issued by the State of California and the County of Santa Clara designed to slow the spread of COVID-19, a highly contagious and deadly disease that has claimed the lives of nearly 1 million Americans and over 6 million people worldwide in just two years. Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations. Those orders have been repeatedly amended in response to changing circumstances and new variants of COVID-19.

Plaintiffs Calvary Chapel San Jose, a Christian church; Mike McClure, its lead pastor; Southridge Church, another Christian church; and Micaiah Irmler, its lead pastor, have sued the


State[1] and County, [2] alleging that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church's bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California's Bane Act.

Before the Court are two motions to dismiss, one filed by the State and the other filed by the County. The State argues that (1) Plaintiffs' claims for injunctive and declaratory relief are moot; (2) the Eleventh Amendment bars Plaintiffs' state law claims and claims for damages; and (3) Plaintiffs' claims against the State fail under Rule 12(b)(6). See ECF No. 121 (“SMTD”); see also ECF No. 132 (“SReply”). In its motion, the County similarly argues that Plaintiffs' claims against it for injunctive and declaratory relief are moot and that Plaintiffs otherwise fail to state plausible claims under Rule 12(b)(6). See ECF No. 135 (“CMTD”); see also ECF No. 145 (“CReply”). Plaintiffs oppose both motions. See ECF Nos. 127 (“SOpp.”), 143 (“COpp.”). The Court held a hearing on March 10, 2022.

For the reasons discussed on the record at the hearing and explained below, the Court GRANTS the State's motion to dismiss and GRANTS IN PART WITH LEAVE TO AMEND IN PART AND DENIES IN PART the County's motion to dismiss.


As alleged in Plaintiff's Third Amended Complaint and assumed true for the purposes of


these motions, in December 2019, the World Health Organization reported the emergence of a novel coronavirus in Wuhan, China. ECF No. 116 (“TAC”) ¶ 26. The virus, dubbed COVID-19, was detected in California in late January 2020 and later spread across the country and the world. Id. ¶ 27.

A. The State's Policies in Response to COVID-19

Although State health officials initially characterized the risk of COVID-19 to the general public as “low, ” on March 3, 2020, the State Department of Public Health issued its first detailed guidelines for fighting COVID-19. Id. ¶¶ 29-30. Governor Newsom declared a state of emergency the next day, and on March 12, 2020, he issued an executive order invoking his emergency powers to “ensure adequate facilities exist to address the impacts of COVID-19, ” but did not require any facilities to close. Id. ¶¶ 31, 33-34; see also Id. Ex. 2.

On March 19, 2020, Governor Newsom issued another executive order directing California residents “to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” TAC ¶ 37; see also Id. Ex. 4 (“State Stay at Home Order”). The State Stay at Home Order, Plaintiffs say, had “no rhyme or reason as to the distinctions . . . made between essential and non-essential activities.” Id. ¶ 41. Pet supply stores, marijuana stores, and liquor stores, for example, were permitted to continue operating, while churches were “deemed non-essential and subjected to some of the strictest rules imaginable.” Id. ¶¶ 40-41. The State Stay at Home Order, as implemented, also contained financial penalties for noncompliance. Id. ¶ 42. On May 4, 2020, Governor Newsom continued the State Stay at Home Order indefinitely and gave discretion to the State Public Health Officer to add to or subtract from the activities prohibited under the Order. Id. ¶ 46; see also Id. Ex. 5. Under this plan, the State still treated churches less favorably than similarly situated secular activities. Id. ¶ 47. This disparate treatment was based on “pure speculation” that churches were more likely to spread COVID-19 “because people gathered close together for extended periods of time and sang together.” Id. ¶ 49. That justification was further undermined, according to Plaintiffs, when State officials actively encouraged Californians to gather in large numbers to protest the death of George Floyd. Id. ¶¶ 50-53, 56. On May 25, 2020, Governor Newsom allowed churches to


reopen to 25% building capacity or 100 attendees, whichever was lower, but did not subject similar secular locations to the same limits. Id. ¶ 58. Around July 6, 2020, Plaintiffs became subject to State guidance that prohibited them from engaging in singing or chanting at indoor services, even though those activities were not prohibited in some secular situations such as in day camps or childcare centers. Id. ¶¶ 64, 66.

On August 28, 2020, the State Department of Public Health issued the “Blueprint for a Safer Economy, ” which established a procedure for assigning counties to one of four tiers based on the volume of COVID-19 cases or hospital availability in that locality. TAC ¶ 67. Counties in higher risk tiers had greater restrictions on what activities were allowed. Id.

On November 16, 2020, the State Department of Public Health issued updated face covering guidance, which required “everyone to wear a mask and maintain 6 feet of distance from one another.” TAC ¶ 70. The face covering guidance exempted several categories of individuals, including those younger than two, persons with a medical condition or disability, hearing impaired individuals, and persons for whom wearing a face covering would create a risk related to their work (such as athletes). Id. ¶ 72. Certain businesses and industries also were not required to fully comply, including barbershops; hair salons; facial and esthetic care businesses; and television, film, and recording studios. Id. ¶¶ 73-74, 76. A week later, the State issued guidance for restaurants that incorporated the face covering guidance and permitted “singing, shouting, playing a wind instrument, or engaging in similar activities” in restaurants and wineries. Id. ¶ 78.

On December 3, 2020, the State Department of Public Health issued a new Regional Stay at Home Order that “banned all indoor worship services while allowing only essential businesses to remain open.” TAC ¶ 81. The Supreme Court enjoined the part of that Order prohibiting indoor worship services in areas in the highest tier of the Blueprint for a Safer Economy, but denied relief as to the capacity limitations and the ban on singing and chanting during indoor services. See Id. ¶ 82; see also S. Bay Pentecostal Church v. Newsom, 141 S.Ct. 716 (2021) (mem.).

B. The County's COVID-19 Policies

A few days after Governor Newsom's March 12, 2020 executive order, government


officials in the County-spurred by Defendants Dr. Cody and Williams-issued a Shelter in Place Order requiring residents to shelter in place “indefinitely.” TAC ¶ 36 & Ex. 3. Dr. Cody and Williams allegedly believed that 56 percent of Californians would be infected with COVID-19 by mid-May 2020 and that between 250, 000 and 500, 000 people would die from the virus by June 2020-numbers that formed the basis for a speech given by Governor Newsom in announcing the State's Stay at Home Order, but did not ultimately come true. Id. ¶¶ 38-39, 43. Like the State Stay at Home Order, the distinctions that the County's order made between essential and non-essential activities allegedly had “no rhyme or reason.” Id. ¶ 41. The County extended its Stay at Home Order indefinitely on May 4, 2020. Id. ¶ 46.

In deciding which industries to allow to reopen, the County allegedly discriminated against religious activities without evidence that COVID-19 was spreading at a greater rate inside churches as compared to other indoor settings. TAC ¶ 47. Additionally, County officials acknowledged that the virus was “likely” spreading among individuals gathering at protests around the death of George Floyd, but did not seek to restrict those activities, unlike those occurring in churches. Id. ¶¶ 55-56. Even after the federal government declared houses of worship “essential” and the Justice Department sent the State a letter arguing that the “lockdown” of churches violated the First Amendment, the County continued to impose its restrictions. Id. ¶¶ 57, 59.

On July 2, 2020, the County issued a Risk Reduction Order, which imposed capacity restrictions on indoor and outdoor gatherings, but exempted certain industries like childcare settings, school settings, transportation, hospitals, offices, stores, and restaurants. TAC ¶ 62. The Order was revised on October 5, 2020, allowing more businesses to reopen, but still imposing strict capacity guidelines on certain types of indoor gatherings like indoor religious activities in ways...

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