Culinary Studios, Inc. v. Newsom

Citation517 F.Supp.3d 1042
Decision Date05 February 2021
Docket NumberCase No. 1:20-CV-1340 AWI EPG
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Parties CULINARY STUDIOS, INC., et al., Plaintiffs v. Governor Gavin NEWSOM, et al., Defendants

517 F.Supp.3d 1042

CULINARY STUDIOS, INC., et al., Plaintiffs
Governor Gavin NEWSOM, et al., Defendants

Case No. 1:20-CV-1340 AWI EPG

United States District Court, E.D. California.

Signed February 5, 2021
Filed February 8, 2021

517 F.Supp.3d 1048

Nathan S. Miller, Mary Elizabeth Castro, Miller & Ayala, LLP, Fresno, CA, for Plaintiffs.

Kristin A. Liska, Office of the Attorney General, San Francisco, CA, for Defendants Gavin Newsom, The State of California, California Department of Alcoholic Beverage Control, Attorney General of the State of California.

Joseph D. Rubin, Betts & Rubin, Fresno, CA, for Defendants The City of Fresno, Lee Brand.

Daniel Carl Cederborg, Katwyn Tiffany DeLaRosa, County of Fresno, Fresno, CA, for Defendants The County of Fresno, The County of Fresno Department of Public Health.



This case involves challenges to restrictions placed on businesses by Gov. Newsom and various state agencies, the City of Fresno and former Fresno Mayor Lee Brand, and the County of Fresno in response to Covid 19. The case is brought primarily by restaurants but includes other businesses such as fitness centers. Plaintiffs intend for this matter to be a class action. Currently before the Court

517 F.Supp.3d 1049

are three motions to dismiss, one by the entities affiliated with the State of California ("State Entities"), one by the entities affiliated with the County of Fresno ("County Entities"), and one by entities affiliated with the City of Fresno ("City Entities"). The State and City Entities filed independent motions supported by briefing. The County Entities joined the State Entities’ motion. Plaintiffs opposes all of the motions.


A. Plaintiffs’ Complaint

The First Amended Complaint ("FAC") brings suit against Gov. Newsom and California Attorney General Xavier Becerra and former City of Fresno Mayor Lee Brand in their official capacities, the State of California, the California Department of Alcoholic Beverages Control ("CABC"), the County of Fresno, the County of Fresno Department of Public Health, and the City of Fresno. In relevant part, the FAC makes the following allegations:

In March 2020, President Trump proclaimed a state of emergency from Covid 19. On March 4, 2020, Gov. Newsom issued a state of emergency due to Covid 19. On March 19, 2020, Gov. Newsom issued executive order N-33-20 which inter alia mandated that all individuals in California stay home or their residences except as needed to maintain continuity of operations of 16 federal critical infrastructure sectors. Gov. Newsom explained that the goal was to bend the curve and disrupt the spread of the virus. Gov. Newsom directed the Office of Emergency Services to take all necessary steps to ensure compliance with the order and that the order was to be enforceable pursuant to California law. Businesses such as those owned by Plaintiffs who did not fit within the 16 essential sectors were deemed "Non-Essential." Non-essential businesses were effectively ordered under penalty of fines and/or imprisonment to shut down. However, business such as Target, Walmart, and Home Depot were allowed to remain open for premises shopping since they were deemed to be essential. Gov. Newsom's executive orders do not provide for a pre- or post- deprivation remedy to question essential/non-essential status or to determine if Plaintiffs can open with the same health related protocols as essential businesses.

Defendants’ orders have caused widespread and catastrophic damage to California's economy through government mandated closure of non-essential businesses. Plaintiffs have faced numerous difficulties with respect to financial obligations and have been forced to lay off significant numbers of employees. Plaintiffs face a real and existential threat to their survival and business operations. They have laid off at least 5,000 workers and lost no less than $200 million in revenue. Since the initial outbreak in February/March 2020 of Covid 19, the federal government's projections of anticipated deaths have decreased substantially. Despite the decrease, Defendants have increasingly restricted, if not outright banned, Plaintiffs’ engagement of constitutionally protected activities. Defendants’ orders have forced Plaintiffs through threat of criminal penalties to close their indoor operations, depriving them of liberty and property interests without due process. At the same time, Gov. Newsom allowed and is allowing other restaurants and businesses throughout the state to remain open for indoor dining and indoor operations, even though those businesses must adhere to CDC guidelines on social distancing and Plaintiffs are fully capable of adhering to those same guidelines.

Defendants’ orders should be enjoined under 42 U.S.C. § 1983 because the orders: (1) plainly violate the Due Process and Equal Protection Clauses of the Fifth and

517 F.Supp.3d 1050

Fourteenth Amendments since they unconstitutionally and disparately apply one set of rules to businesses deemed essential versus all other businesses that are deemed non-essential, when in fact all businesses are essential to the health, welfare, and wellbeing of its citizens; (2) the orders amount to an impermissible partial or complete taking in violation of the Fifth Amendment's Takings Clause; and (3) the orders violate the substantive and procedural due process clauses of the Fifth and Fourteenth Amendments. The orders also violate Article 1, Sections 1, 7, and 19 of the California Constitution.

Plaintiffs allege that labeling them as non-essential is irrational, arbitrary, and capricious and bears no rational basis to any valid government interest. Plaintiffs also allege that the orders are not narrowly tailored to further a compelling governmental interest. Defendants have granted numerous special exemptions to their bans on public gatherings, including for essential businesses, provided that social distancing is observed. Since such gatherings are permitted, Defendants must permit Plaintiffs to engage in such activities provided that social distancing guideline are also followed.

From these allegations, Plaintiffs allege 6 counts.

Count 1 alleges a claim for Procedural Due Process under the Fourteenth Amendment. Citing Sacramento v. Lewis , 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), Plaintiffs allege that they have a protected liberty interest in the right to live without arbitrary governmental interference with their liberty and property interests. Pursuant to Board of Regents of State Colleges v. Roth , 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), liberty "denotes not merely the freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men." Plaintiffs allege that they also have protected liberty and property interests in the right to intrastate travel and to engage in commerce by operating indoor dining, and those interests are being infringed by the orders. The orders at issue provided no process before issuance and provide for no post-deprivation review. By failing to provide for pre- or post-deprivation review, Plaintiffs have lost significant revenue.

Count 2 alleges violation of the Substantive Due Process under the Fourteenth Amendment. Plaintiffs allege that the orders shock the conscience and interfere with rights implicit in the concept of ordered liberty. Specifically, the orders interfere with the right to work, to contract, and to engage in commerce. Plaintiffs allege that they can conduct business safely and in compliance with otherwise applicable rules. Plaintiffs allege that the orders are not narrowly tailored to serve a compelling state interest. They allege that there is also no rational basis for the orders since the Covid 19 virus is under control and Plaintiffs are capable of following guidelines to safely conduct business.

Count 3 alleges violation of Equal Protection under the Fourteenth Amendment. Plaintiffs allege that restaurants and businesses throughout the state are permitted to operate indoor dining and activities, yet Plaintiffs are not. Defendants placed these restrictions without any evidence demonstrating that indoor dining in Plaintiffs’ businesses somehow increases a person's chances of contracting Covid 19. Under Gov. Newsom's orders, Plaintiffs’ businesses

517 F.Supp.3d 1051

must remain closed for indoor dining while businesses just hours away can open for indoor operations, even though Plaintiffs can implement the same otherwise applicable social distancing guidelines.

Count 4 alleges violation of Equal Protection under Art. 1, Sec. 7(a) of the California Constitution. Plaintiffs allege that classifying businesses as either essential or non-essential, or based on...

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