County of Los Angeles Department of Health v. Super. Ct. ( 2021 )

3/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COUNTY OF LOS ANGELES B309416
DEPARTMENT OF PUBLIC HEALTH,
et al., (Los Angeles County
Super. Ct. Nos.
Petitioners, 20STCP03881,
20STCV45134)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent,
CALIFORNIA RESTAURANT
ASSOCIATION, INC., et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate.
James C. Chalfant, Judge. Petition granted.
Rodrigo A. Castro-Silva, Acting County Counsel, Judy
Whitehurst and Edward Morrissey, Assistant County Counsels,
Natasha Mosley, Deputy County Counsel; Miller Barondess,
Amnon Z. Siegel, Jason H. Tokoro, Minh-Van T. Do; Greines
Martin, Stein & Richland, Timothy T. Coates and Marc J. Poster
for Petitioners.
Brown George Ross O’Brien Annaguey & Ellis, Dennis S.
Ellis, Eric M. George, Katherine F. Murray, Ryan Q. Keech, Lori
Sambol Brody, Carl Alan Roth, Noah S. Helpern, Richard A.
Schwartz for Real Party in Interest California Restaurant
Association.
Geragos & Geragos, Mark J. Geragos and Mathew Hoesly
for Real Party in Interest Mark’s Engine Company No. 28
Restaurant, LLC.
Horvitz & Levy, Bradley S. Pauley and Eric S. Boorstin for
The Bicycle Casino, LP, California Commerce Club, Inc., Crystal
Casino, Hawaiian Gardens Casino, and Hollywood Park Casino
Company, Inc., as Amicus Curiae on behalf of Real Parties in
Interest.
Littler Mendelson, Bruce J. Sarchet and Michael J. Lotito
for Restaurant Law Center as Amicus Curiae on behalf of Real
Parties in Interest.
Gordon Rees Scully Mansukhani, Marie Trimble Holvick
for Golden Gate Restaurant Association as Amicus Curiae on
behalf of Real Parties in Interest.
Burke, Williams & Sorensen, Joseph M. Montes and Brian
S. Ginter for City of Santa Clarita as Amicus Curiae on behalf of
Real Parties in Interest.
2
INTRODUCTION
At a time when infection rates were surging, and Southern
California’s intensive care units were about to be overwhelmed by
COVID-19 patients, Los Angeles County’s Department of Public
Health issued an emergency order temporarily prohibiting
outdoor restaurant dining. Indoor restaurant dining had already
been banned. Although the Department and its leadership
(collectively, the County) had no study specifically demonstrating
that outdoor restaurant dining contributes to the spread of the
disease, they had a rational basis to believe it does.
For example, it is undisputed that the disease spreads
through airborne transmission from an infected person (who may
be asymptomatic) to an uninfected member of the community, if
the latter receives a sufficient dose to overcome his or her
defenses. The risk of transmission thus increases when people
from different households gather in close proximity for extended
periods without masks or other face coverings. The risk also
increases with unmasked talking and laughter. These conditions
are often all present when people dine together in restaurants,
whether indoors or out.
According to the County’s Chief Medical Officer and
Director of Disease Control, the wide consensus in the public
health field is that pandemic risk reduction does not require
definitive proof that a particular activity or economic sector is
“the” cause of an increase in cases. Rather, best practices dictate
that public health departments take steps to mitigate identified
risks, particularly as infection rates and hospitalizations surge.
In these consolidated cases, the trial court enjoined the
County’s order temporarily banning outdoor restaurant dining
until the County performed a risk-benefit analysis acceptable to
the court. We issued a stay and an order to show cause why the
lower court’s order should not be set aside. We now hold that
courts should be extremely deferential to public health
authorities, particularly during a pandemic, and particularly
3
where, as here, the public health authorities have demonstrated
a rational basis for their actions. Wisdom and precedent dictate
that elected officials and their expert public health officers,
rather than the judiciary, generally should decide how best to
respond to health emergencies in cases not involving core
constitutional freedoms. Courts should intervene only when the
health officials’ actions are arbitrary, capricious, or otherwise
lack a rational basis, or violate core constitutional rights, which
demonstrably is not the case here.
Thankfully, during the pendency of this petition, infection
rates declined and ICU availability increased, causing the
Governor to rescind a similar prohibition on outdoor dining at
restaurants, and the County to lift its prohibition as well. While
we hope we do not see another surge, we recognize that
conditions may change and the County may re-impose its outdoor
restaurant dining ban. Thus, the cases are not moot. Accordingly,
we issue a peremptory writ of mandate directing the trial court to
set aside its order granting a preliminary injunction, and to
instead deny the motions seeking that relief.
This does not mean we are unsympathetic to the plight of
restaurant owners and their employees, or to those in so many
other sectors who have had their livelihoods taken away and
personal finances decimated by the pandemic. Far from it. Both
the disease itself and its economic consequences have harmed
people and communities unequally, sometimes devastatingly so.
But whether, when, and how a risk-benefit calculus should be
performed, and whether existing orders should be altered to
mitigate their costs, is a matter for state and local officials to
decide. The Los Angeles County Board of Supervisors considered
the restaurant industry’s objections to the order prohibiting
outdoor dining at restaurants, but declined (by a majority vote) to
rescind the order. On these facts, we will not disturb that
decision.
4
FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2020, Governor Newsom declared a “State of
Emergency,”1 in response to the global outbreak of COVID-19, “a
new disease, caused by a novel (or new) coronavirus that has not
previously been seen in humans.” (Centers for Disease Control
and Prevention, Coronavirus Disease, COVID-19, Frequently
Asked Questions, What is COVID-19? (Feb. 2, 2021)
(as of
February 2, 2021).). To limit the spread of COVID-19, on March
19, 2020, Governor Newsom issued a Stay-at-Home Order,
requiring California residents to remain in their homes except
when engaging in essential activities.
Since March 2020, the County has also issued a series of
health orders to combat the spread of COVID-19. These orders
have been modified in response to hospitalization and death
rates, and scientists’ evolved understanding of how the virus is
transmitted. The County’s June 1, 2020 order prohibited
restaurants from providing indoor dining, but permitted them to
offer outdoor dining if they followed safety protocols set forth in
the order. On November 19, 2020, the County imposed further
restrictions on outdoor dining, including that dining must be
reduced by 50% or tables must be repositioned so that they are at
least eight feet apart.
On November 22, 2020, the County announced that,
effective November 25, 2020, it would temporarily prohibit both
1 The Emergency Services Act (ESA) empowers state and
local governments to declare emergencies and coordinate efforts
to provide services. (Gov. Code, §§ 8550-8669.7.) A “state of
emergency” means “the existence of conditions of disaster or of
extreme peril to the safety of persons and property within the
state caused by conditions” including an “epidemic” and “which,
by reason of their magnitude, are or are likely to be beyond the
control of” any single county or city and “require the combined
forces of a mutual aid region or regions[.]” (Gov. Code, § 8558.)
5
indoor and outdoor dining at restaurants, breweries, wineries,
and bars to combat the alarming surge in COVID-19
hospitalizations and deaths (the “Order”). Under the Order,
restaurants were permitted to continue take-out, delivery, and
drive-through services.
In response to the Order, the California Restaurant
Association, Inc. (CRA) and Mark’s Engine Company No. 28
Restaurant LLC (Mark’s) (collectively, the “Restaurateurs”), filed
separate suits against the County in respondent Los Angeles
County Superior Court. CRA alleged the County “shut down
outdoor dining without relying on or making available to the
public any competent scientific, medical, or public health
evidence stating that outdoor dining poses a substantial risk of
unacceptably increasing the transmission of COVID-19.” It
brought claims for (1) writ of traditional mandate; (2) writ of
administrative mandate; (3) declaratory and injunctive relief; and
(4) violation of due process and equal protection. Similarly,
Mark’s alleged the Order “is an abuse of Defendants’ purported
‘emergency powers’ and is neither grounded in science, evidence
nor logic, and thus should be deemed and adjudicated . . . to be
unenforceable as a matter of law.” It brought claims for (1)
declaratory judgment; and (2) infringement of its right to liberty
(Cal. Const. art. I, § 1).2
On November 24, 2020, the trial court denied CRA’s ex
parte application to stay the Order for failure to present
sufficient evidence to make a prima facie case. It permitted CRA
2 Neither CRA nor Mark’s, however, argues in this writ
proceeding that the Order violates its right to liberty under the
California Constitution or the equal protection clause of the
Fourteenth Amendment, except for Mark’s cursory statement
that the Order “had a disparate impact on [Mark’s] and has
unfairly targeted the restaurant industry, despite the total lack
of scientific evidence . . . .” We therefore deem these arguments
abandoned. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246
Cal.App.4th 1150, 1171, fn. 12.)
6
to renew its application, however, as one for a temporary
restraining order (TRO) and an order to show cause re:
preliminary injunction (OSC) if it “presented evidence that the
restrictions are unsupported and of irreparable harm.” On
December 1, 2020, the court also denied Mark’s separate ex parte
application, but permitted it to file a new ex parte application for
a TRO and OSC. The trial court later denied CRA’s and Mark’s
ex parte applications for a TRO, but issued an OSC and set the
consolidated actions for hearing.
While this action was pending in the trial court, Governor
Newsom issued a Regional Order, which took effect on December
5, 2020. The Regional Order, among other things, prohibited
indoor and outdoor dining at restaurants in the Southern
California region in the event available ICU beds in the region
fell below 15% of capacity. The Regional Order was to remain in
effect for at least three weeks and, after that period, would be
lifted if the region’s ICU availability projection for four weeks
equaled or exceeded 15% of capacity.
On December 8, 2020, the trial court held a hearing on the
OSC. On December 15, 2020, the trial court entered an order
enjoining the County from enforcing or enacting any County ban
on outdoor dining after December 16, 2020, unless and until its
public health officers “conduct[ ] an appropriate risk-benefit
analysis and articulate it for the public to see.”
The County petitioned this court for a writ of mandate
directing respondent court to immediately stay the preliminary
injunction, and issue a peremptory writ commanding respondent
court to set aside the injunction. We stayed the preliminary
injunction order and issued an order to show cause on December
18, 2020. The Restaurateurs filed a return, and the County filed a
reply.3 We also granted the applications of the City of Santa
3 CRA requests we take judicial notice of nine documents.
Exhibits 1-5 are printouts from the Centers for Disease Control
and the County of Los Angeles Public Health websites purporting
7
Clarita, Golden Gate Restaurant Association, Bicycle Casino, LP,
et al., and Restaurant Law Center to file amicus briefs in support
of the Restaurateurs.
While this writ petition was pending, on January 25, 2021,
the Governor lifted the Regional Order based on the latest
projections of improved regional ICU availability. The County
also announced on January 25, 2021 that it would permit outdoor
dining at restaurants beginning January 29, 2021, but with
significant restrictions (including minimum specified distances
between tables, requiring servers to wear face coverings at all
times and patrons to do so unless eating or drinking, and a new
requirement that diners may only be seated at a table with
members of their own household).
to demonstrate that federal and Los Angeles County health
authorities conduct risk-benefit analyses in connection with
determinations about public health policy. These documents were
not presented to the trial court, and we decline to judicially notice
them. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-
326 [“An appellate court may properly decline to take judicial
notice under Evidence Code sections 452 and 459 of a matter
which should have been presented to the trial court for its
consideration in the first instance. [Citations.]”].) We also deny
CRA’s request to judicially notice Exhibits 8 and 9, minute orders
dated December 16, 2020 and December 17, 2020 in Midway
Ventures, LLC v. County of San Diego, et al., Case No. 37-2020-
00038194-CU-CR-CTL. We do not consider unpublished trial
court orders in other cases as authority and, in any event, the
Court of Appeal reversed the trial court on the ground it “erred
by entering an overbroad injunction that was unsupported by the
law[.]” (Midway Ventures LLC v. County of San Diego(2021) 60
Cal.App.5th 58.) We grant CRA’s request to judicially notice
Exhibits 6 and 7, County orders dated December 11, 2020 and
December 27, 2020. (Evid. Code, § 452, subd. (h).)
8
DISCUSSION
A. Standard of Review
We generally review the grant of a preliminary injunction
for abuse of discretion. (Sahlolbei v. Providence Healthcare, Inc.
(2003) 112 Cal.App.4th 1137, 1145.) In exercising its discretion,
the court must consider “two interrelated factors: the likelihood
the moving party ultimately will prevail on the merits, and the
relative interim harm to the parties from the issuance or
nonissuance of the injunction. [Citation.]” (Hunt v. Superior
Court (1999) 21 Cal.4th 984, 999.) “A trial court may not grant a
preliminary injunction, regardless of the balance of interim harm,
unless there is some possibility that the plaintiff will ultimately
prevail on the merits of the claim. [Citation.] ‘Where there is . . .
no likelihood that the plaintiff will prevail, an injunction favoring
the plaintiff serves no valid purpose and can only cause needless
harm.’ [Citation.]” (Aiuto v. City & County of San Francisco
(2011) 201 Cal.App.4th 1347, 1361.) Where “the determination on
the likelihood of a party’s success rests on an issue of pure law
not presenting factual issues to be resolved at trial, we review the
determination de novo. [Citation.]” (14859 Moorpark
Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396,
1403.) For the reasons discussed below, we conclude the trial
court failed to apply the proper deferential standard for
evaluating state and local agencies’ responses to public health
emergencies. Under the correct standard, there is no likelihood
the Restaurateurs will prevail on the merits of their claims. The
trial court therefore abused its discretion by issuing a
preliminary injunction.
B. This Action is Not Moot
As stated above, while this writ was pending, the County
lifted its prohibition on outdoor dining based on the latest data
9
demonstrating a decline in daily case and hospitalization rates.
This matter is not moot, however. (See Roman Catholic Diocese v.
Cuomo (2020) 592 U.S __, __ [141 S.Ct. 63, 68, 208 L.Ed.2d 206,
210] (per curiam) (Roman Catholic Diocese) [holding the
applications to enjoin an order restricting attendance at religious
services were not moot despite those restrictions being lifted
during the pendency of the action because “the applicants remain
under a constant threat” that those restrictions may be
reinstated as the COVID-19 pandemic evolves].) The County has
made it clear that it may re-impose its prohibition on outdoor
dining if the region faces another surge. This matter therefore
fits squarely within an exception to mootness: “‘(1) the challenged
action is in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there is a reasonable expectation
that the same complaining party will be subject to the same
action again.’ [Citation.]” (FEC v. Wis. Right to Life, Inc. (2007)
551 U.S. 449, 462 [127 S.Ct. 2652, 168 L.Ed.2d 329]; see also
Amgen Inc. v. California Correctional Health Care Services (2020)
47 Cal.App.5th 716, 728 [an appellate court retains “‘discretion to
decide a moot issue if the case presents an issue of “‘substantial
and continuing public interest’” and is capable of repetition yet
evades review.’ [Citation.]”].)
C. The Order is Not a Plain, Palpable Invasion of
Rights Secured by the Fundamental Law and is
Rationally Related to Limiting the Spread of
COVID-19
a. Jacobson and Its Progeny
More than 100 years ago, the United States Supreme Court
established the extremely deferential standard of review
applicable to emergency exercises of governmental authority
during a public health emergency. In 1905, the Supreme Court
10
upheld a mandatory vaccination law against a substantive due
process challenge. (Jacobson v. Massachusetts (1905) 197 U.S. 11,
39 [25 S.Ct. 358, 49 L.Ed. 643] (Jacobson).) It stated: “Upon the
principle of self-defense, of paramount necessity, a community
has the right to protect itself against an epidemic of disease
which threatens the safety of its members.” (Id. at p. 27.) Thus,
government action that “purport[s] to . . . protect the public
health” in such an emergency will be upheld, unless it “has no
real or substantial relation” to the object of public health or is
“beyond all question, a plain, palpable invasion of rights secured
by the fundamental law[.]” (Id. at p. 31.)
Jacobson predates the tiers of scrutiny used in modern
constitutional law. Some (including the Restaurateurs) have
questioned its continued vitality and applicability to state and
local responses to the COVID-19 pandemic. (See Delaney v. Baker
(D.Mass. 2021) __ F.Supp.3d __, 2021 U.S.Dist. LEXIS 1567
[collecting some criticism of Jacobson, particularly as applied to
First Amendment challenges to pandemic restrictions].)
Jacobson was cited both positively and negatively in both
concurrences and dissents in the recent series of United States
Supreme Court cases adjudicating challenges to emergency
exercises of state authority in the current pandemic based on the
Free Exercise Clause of the First Amendment. The Supreme
Court had ample opportunity to overrule Jacobson, but did not.
(See, e.g., S. Bay United Pentecostal Church v. Newsom (2020)
592 U.S. __ [140 S.Ct. 1613, 207 L.Ed.2d 154] (per curiam)
(South Bay I); Calvary Chapel Dayton Valley v. Sisolak (2020)
140 S.Ct. 2603 [207 L.Ed.2d 1129] (mem.) (Calvary Chapel
Dayton Valley); Roman Catholic Diocese, supra, 141 S.Ct. 63 (per
curiam); S. Bay United Pentecostal Church v. Newsom (2021) 592
U.S. __ [141 S.Ct. 716] (mem.) (South Bay II).)
In the first two cases, South Bay I and Calvary Chapel
Dayton Valley, the Supreme Court declined to enjoin pandemic
restrictions despite Free Exercise Clause challenges. In Roman
11
Catholic Diocese and South Bay II, however, it enjoined health
orders, concluding the orders unlawfully discriminated against
religious groups. The different outcomes may be attributed to
factual differences, and/or to the fact that Justice Amy Coney
Barrett joined the court. In any event, the dissenters in South
Bay I and Calvary Chapel Dayton Valley were in the majority in
the later cases.
Under precepts of stare decisis, it is our role to harmonize
Jacobson and these recent cases. We do so without difficulty.
Jacobson admonished that “no rule prescribed by a state, nor any
regulation adopted by a local governmental agency acting under
the sanction of state legislation” to protect public health may
“contravene the Constitution of the United States, nor infringe
any right granted or secured by that instrument.” (Jacobson,
supra, 197 U.S. at p. 25.) Roman Catholic Diocese and South Bay
II enjoined application of public health orders that the majorities
concluded violated the Free Exercise Clause because public
officials failed to demonstrate that the distinctions drawn
between houses of worship and secular businesses were based on
scientific or medical expertise. This is fully consistent with
Jacobson. As Chief Justice Roberts wrote in his concurrence in
South Bay II, in a clear reference to his earlier reliance on
Jacobson in South Bay I, “I adhere to the view that the
‘Constitution principally entrusts the safety and the health of the
people to the politically accountable officials of the States.’ But
the Constitution also entrusts the protection of the people’s rights
to the Judiciary . . . . Deference, though broad, has its limits.”
(South Bay II, supra, 141 S.Ct. at p. 717 (conc. opn. of Roberts,
C.J.); see also Thaler, The Next Surges Are Here: What Can
American Governments Lawfully Do In Response to the Ongoing
COVID-19 Pandemic? (2021) 42 Mitchell Hamline L.J. Pub. Pol’y
& Prac. 165.)
In any event, the substantive due process claims advanced
by the Restaurateurs are analyzed in essentially the same way
12
under Jacobson or employing modern rational basis review.4 (See
Roman Catholic Diocese, supra, 141 S.Ct. at pp. 69-71 (conc. opn.
of Gorsuch, J.) [equating Jacobson and rational basis review].)
We agree with the following summary of the current state
of the law as laid out by Justice Kavanaugh in his dissenting
opinion in Calvary Chapel Dayton Valley, supra, 140 S.Ct. at pp.
2614-2615, and believe a majority of the United States Supreme
Court would, too. It reconciles Jacobson with the Supreme
Court’s most recent cases and indicates the Restaurateurs’ claims
in this case should be resolved by extending great deference to
the State and County, per Jacobson:
“[C]ourts should be very deferential to the
States’ line-drawing in opening businesses and
allowing certain activities during the pandemic. For
example, courts should be extremely deferential to
the States when considering a substantive due
process claim by a secular business that is being
treated worse than another business. Cf. Jacobson v.
Massachusetts, 197 U.S. 11, 25-28, 25 S.Ct. 358, 49
L.Ed. 643 (1905). Under the Constitution, state and
local governments, not the federal courts, have the
primary responsibility for addressing COVID-19
matters such as quarantine requirements, testing
plans, mask mandates, phased reopenings, school
closures, sports rules, adjustment of voting and
election procedures, state court and correctional
institution practices, and the like.
“But COVID 19 is not a blank check for a State
to discriminate against religious people, religious
4 We note some courts appear to interpret the Jacobson test
as more deferential than the rational basis standard. (See, e.g.,
Calvary Chapel v. Mills (D.Me. 2020) 459 F.Supp.3d 273, 284
[“while such an epidemic is ongoing, the ‘traditional tiers of
constitutional scrutiny do not apply.’ [Citations.]”].)
13
organizations and religious services. There are
certain constitutional red lines that a State may not
cross even in a crisis. Those red lines include racial
discrimination, religious discrimination and content-
based suppression of speech.”
For purposes of substantive due process claims, the
rational basis test is “the law must not be unreasonable,
arbitrary or capricious but must have a real and substantial
relation to the object sought to be obtained. [Citations.]” (Gray v.
Whitmore (1971) 17 Cal.App.3d 1, 21.) “[N]o valid objection to the
constitutionality of a statute under the due process clause may be
interposed ‘if it is reasonably related to promoting the public
health, safety, comfort, and welfare, and if the means adopted to
accomplish that promotion are reasonably appropriate to the
purpose.’ [Citations.]” (People v. Aguiar (1968) 257 Cal.App.2d
597, 602.)
Similarly, “[w]here judicial review of administrative action
by an agency acting in its legislative capacity is sought, that
review begins and ends with a determination as to whether the
agency’s action has been ‘“‘arbitrary, capricious, or entirely
lacking in evidentiary support . . . .’”’ [Citations.]” (Davies v.
Contractors’ State License Bd. (1978) 79 Cal.App.3d 940, 946; see
also Ursack, Inc. v. Sierra Interagency Black Bear Group (9th Cir.
2011) 639 F.3d 949, 958 [noting “rational basis” and “arbitrary
and capricious” standards of review are “identical”].) “A court
reviewing a quasi-legislative act cannot reweigh the evidence or
substitute its own judgment for that of the agency. [Citation.]”
(Plastic Pipe & Fittings Assn. v. California Building Standards
Com. (2004) 124 Cal.App.4th 1390, 1406.)
14
b. Analysis
Here, the Restaurateurs contend the County exceeded its
“emergency powers” under the Health and Safety Code5 by
implementing the Order without conducting a risk-benefit
analysis. They also contend the Order violates their
substantive due process rights under the Fifth and Fourteenth
Amendments. Although the Restaurateurs did not specifically
label their claims as violations of their “substantive” due process
rights, the trial court so characterized them because the claims
target alleged arbitrary government action.
As discussed above, the Restaurateurs’ excess of power
and constitutional arguments both call for the same analysis: the
core issue is whether the County’s temporary suspension of
outdoor restaurant dining is rationally related to a legitimate
state interest, i.e., limiting the spread of COVID-19.
(See Roman Catholic Diocese, supra, 141 S.Ct. at p. 67
[“Stemming the spread of COVID-19 is unquestionably a
compelling interest . . . .”].)6
5 Health and Safety Code section 101040, subdivision (a)
states, in relevant part: “The local health officer may take any
preventive measure that may be necessary to protect and
preserve the public health from any public health hazard during
any . . . ‘state of emergency,’ or ‘local emergency,’ . . . within his or
her jurisdiction.” Health and Safety Code section 120175 states:
“Each health officer knowing or having reason to believe that any
case of the diseases made reportable by regulation of the
department, or any other contagious, infectious or communicable
disease exists, or has recently existed, within the territory under
his or her jurisdiction, shall take measures as may be necessary
to prevent the spread of the disease or occurrence of additional
cases.”
6 The Restaurateurs also argue the Order infringes their
fundamental right to pursue a profession. But “[t]he right to
pursue one’s chosen profession is not a fundamental right for the
15
In support of their requests for a preliminary injunction,
the Restaurateurs offered several expert declarations regarding
the purported lack of evidence to support the Order and the
economic harm the Order would cause restaurant owners and
employees. For example, Jeff Barke, M.D., a primary care
physician, opined the Order does not comport with
epidemiological science and lacks a rational and legitimate
medical basis. Similarly, Hubert A. Allen Jr., a biostatistician,
declared no evidence or scientific studies support the conclusion
that operating outdoor dining in Los Angeles County poses an
unreasonable risk to public health.
The Restaurateurs also offered the declaration of Jayanta
Bhattacharya, M.D., a Professor of Medicine and infectious
disease specialist at Stanford University. In Dr. Bhattacharya’s
opinion, restaurants could safely permit outdoor dining by
following the Centers for Disease Control guidelines (i.e., social
distancing and mask wearing by servers and by patrons when not
eating). He explained the County provided “no indication that it
has estimated or otherwise taken into account any of the
economic, social, and public health costs of restricting outdoor
dining.” He also opined, without reference to any supporting
evidence, that “[b]asic standards of public health policy design
require a comparison of health costs and benefits of a policy to
justify it from a scientific and ethical point of view.” He further
stated, “[a] scientifically justified policy must explicitly account
for these costs – including an explicitly articulated economic
analysis – in setting, imposing, and removing criteria for
business restrictions such as the blanket prohibition on outdoor
dining.”
In response, the County submitted the declaration of
Muntu Davis, M.D., the County’s Health Officer and medical
purpose of invoking the strict scrutiny test. [Citations.]”
(Cunningham v. Superior Court (1986) 177 Cal.App.3d 336, 348.)
16
expert regarding public health matters. He declared: “The County
recognizes that it has asked businesses in the County and its
more than 10 million residents to make significant adjustments
to fight this pandemic. Yet, in the considered opinions of myself
and that of DPH [the County Department of Health] and its top
communicable disease experts, these temporary adjustments and
modifications are necessary to combat the ongoing surge in
COVID-19 cases and hospitalizations, and the resulting strain on
the County’s health care system.” He further stated: “Allowing
COVID-19 to proliferate unchecked across the County, without
taking affirmative measures to reduce transmission would be
unacceptable, unethical, and bad public policy. The societal costs
of allowing large numbers of preventable deaths in a quest for
‘herd immunity’ would far outweigh any economic or other
benefits. That is why the overwhelming majority view has
rejected and criticized Dr. Bhattacharya’s suggested approach.”
Dr. Davis concluded: “Based on the data, I determined that the
risks and harms of uncontrolled community spread, strain on the
health care system, and excess preventable deaths outweighed
the social and economic harm of a temporary suspension on in-
person restaurant dining.”
The County also offered the declaration of Jeffrey
Gunzenhauser, M.D., the County’s Chief Medical Officer and the
Director of the Disease Control Bureau. He initially noted that
“[b]ecause the virus that causes COVID-19 is novel, much
remains uncertain.” He explained, however, there is a consensus
among epidemiologists that the most common mode of
transmission of COVID-19 is from person-to-person respiratory
droplets that are expelled when a person coughs, sneezes, or
projects his or her voice. “There is also evidence that COVID-19
may be spread through aerosols that are expelled when a person
speaks.” There is no scientifically agreed-upon safe distance, but
it is widely accepted that standing or sitting near an infectious
person is riskier than being farther away.
17
Moreover, it is “widely accepted that an infected person is
capable of transmitting COVID-19 before they develop symptoms
and if they ever develop symptoms at all. Asymptomatic and pre-
symptomatic transmission make COVID-19 particularly difficult
to contain. Individuals without symptoms are generally unaware
that they are infected and are thus less likely to isolate or take
other steps to avoid transmitting the virus.”
Dr. Gunzenhauser further stated, “[t]he risk of
transmission further increases when individuals are in close
proximity for an extended period of time” and when “individuals
are not wearing face coverings.” “Being in close proximity to an
unmasked infected person for a prolonged period of time presents
an especially high risk of receiving a viral dose sufficient to cause
COVID-19 infection.”
Marianne Gaushe-Hill, Medical Director for the County’s
Department of Emergency Medical Services Agency, detailed the
recent surge in COVID-19 hospitalizations and the then
imminent overwhelming of the County’s healthcare system.
Specifically, the “County’s ICU bed availability in the month of
November [ ] decreased to less than 5% of total capacity.” The
County notes in its Reply brief, filed January 19, 2021, that
available ICU capacity in the Southern California region “has
been down to 0% since early December 2020.”
After reviewing the evidence, the trial court found the
“County ha[d] shown that the greatly decreased capacity of
hospitals and ICUs [were] burdening the healthcare system and
action w[as] necessary.” It concluded, however, that what it called
“the County’s syllogism” – “(a) COVID[-19] is spread by expelled
droplets that transmit the virus to others in proximity, (b) people
eating outdoors in restaurant are in proximity to others and they
are not wearing masks, (c) therefore outdoor dining has a risk of
spreading COVID[-19] – only weakly supports closure of outdoor
restaurant dining because it ignores the outdoor nature of the
activity which the CDC says carries only a moderate risk (and
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less with mitigations.)” After conceding it could not “weigh
evidence in deciding whether the restriction ha[d] a rational
basis, and [that] the Department [had] generalized evidence of a
COVID[-19] risk in outdoor dining,” the trial court nevertheless
held the County acted arbitrarily, because it failed “to perform
the required risk-benefit analysis.”
Thus, despite acknowledging Supreme Court precedent
requiring it to show great deference to the County in these
circumstances, and the “syllogism” demonstrating a rational
basis for the challenged order, the trial court took it upon
itself to adopt Dr. Bhattacharya’s unsupported opinion and
mandate a “risk-benefit analysis” before the County could enforce
its order. The trial court stated it could not “dictate what the
[County] must do as part of the risk-benefit analysis.”
Mandating a nebulous risk-benefit requirement
is inconsistent with the court’s appropriate role.
As discussed above, our “review begins and ends with a
determination . . . whether the agency’s action has been
‘“‘arbitrary, capricious, or entirely lacking in evidentiary
support . . . .’”’ [Citations.]” (Davies v. Contractors’ State License
Bd., supra, 79 Cal.App.3d at p. 946.) The County’s imposition of
the Order is none of those things.
Of course, more particularized studies of the spread of
COVID-19 while dining at outdoor restaurants would be
valuable. But undertaking those studies takes time and resources
that may not be available when swift government action must
be taken in response to surging infection, hospitalization,
and death rates during a once in a century pandemic.7 As of
7 Information about outdoor COVID-19 transmission is not
completely absent, however. Relying on an incident in which a 27
year-old man contracted COVID-19 after having a conversation
with another individual outdoors who had recently returned from
Wuhan, Dr. Davis noted that “[w]hile the risk of transmission is
lower outdoors, it is still present.” Dr. Davis also cited a study on
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this writing, government sources indicate more than 500,000
Americans have died with COVID-19. As has been widely
reported, that grim figure exceeds the number of U.S. soldiers
killed in combat in the Vietnam War and both World Wars
combined. Approximately 50,000 of those deaths reportedly
occurred in the State of California, with about
20,000 reported in Los Angeles County alone. (United States
COVID-19 Cases and Deaths by State (Feb. 25, 2021)
(covid.cdc.gov/covid-data-tracker/#cases_totaldeaths); LA County
Daily COVID-19 Data (Feb. 25, 2021)
(publichealth.lacounty.gov/media/coronavirus/data/index.htm).)8
When the Order went into effect, Los Angeles was
experiencing a surge of infections. Against this backdrop, the
County was forced to take immediate action. As detailed in Dr.
Davis’s declaration, the County recognized the preventative
measures required to slow the spread of COVID-19, including
temporarily restricting in-person dining, have an emotional and
economic impact on businesses, families, and individuals, but
ultimately determined the restriction on outdoor dining was
necessary because “dining with others creates a circumstance
where non-household members are gathering in close proximity
to each other without any COVID-19 infection control protections
and typically for more than 15 minutes.” This scenario presents
“significant risks of transmission from persons who are
asymptomatic or pre-symptomatic” and “from a disease control
standpoint” restricting in-person dining “is necessary to mitigate
the effectiveness of physical distancing in controlling the spread
of COVID-19, and stated, “outdoor, well-ventilated spaces, such
as an open patio restaurant, where unmasked persons have
prolonged contact, present a moderate risk of transmission. Being
outdoors reduces risk but does not eliminate it.”
8 On our own motion, we take judicial notice of the CDC and
the County of Los Angeles Public Health websites tracking the
numbers of COVID-19 deaths. (Evid. Code, § 452, subd. (h).)
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the risks presented by persons gathering together without
masks.” In making this determination, Dr. Davis relied, in part,
on “a number of studies showing the role of masks in limiting the
spread of COVID-19, and that situations where unmasked
individuals from different households spend extended periods of
time in close proximity to one another present a higher risk of
transmission than settings where one or more of these factors is
absent.”
We decline the Restaurateurs’ invitation to second-guess
public health officials’ actions in an “‘area[ ] fraught with medical
and scientific uncertainties.’” (South Bay I, supra, 140 S.Ct. at p.
1613 (conc. opn. of Roberts, C.J.).) Because the Restaurateurs
failed to satisfy their burden of demonstrating the Order is
arbitrary, capricious, or without rational basis, we conclude they
cannot ultimately succeed on the merits of their claims. Thus,
they were not entitled to injunctive relief. (Aiuto v. City & County
of San Francisco, supra, 201 Cal.App.4th at p. 1361 [“A trial
court may not grant a preliminary injunction, regardless of the
balance of interim harm, unless there is some possibility that the
plaintiff will ultimately prevail on the merits of the claim.
[Citation.]”].)
D. Mark’s Freedom of Assembly Argument
Mark’s joins in the arguments of CRA, but also separately
contends the Order violates its (or its patrons’) First Amendment
right to freedom of assembly. Mark’s seemingly forfeited this
argument by failing to raise it in the trial court. (In re Riva M.
(1991) 235 Cal.App.3d 403, 411-412 [“As a general rule, a party is
precluded from urging on appeal any point not raised in the trial
court. [Citation.]”].) In its complaint, Mark’s also failed to allege
the Order violated its (or its patrons’) First Amendment right to
freedom to assembly. The closest it came to raising the issue
below is one sentence in its trial court brief where it contends it is
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entitled to preliminary injunctive relief because the Order “is
irrational, arbitrary and capricious,” and “has caused irreparable
harm, economic damages, loss of civil liberties, and massive
unemployment” and “represents a plain and palpable invasion of
clearly protected rights, i.e., Freedom of Association, Right to
Labor, Right to Equal Protection of the Law.” But perhaps
recognizing its complaint is devoid of any First Amendment
claim, Mark’s did not argue the Order violated its First
Amendment right to freedom of assembly (i.e., a fundamental
right) and therefore should be subject to intermediate or strict
scrutiny. Because Mark’s did not raise a freedom of association
claim in its complaint, did not request leave to amend to add such
a claim, and made no reasoned argument about such a claim, the
trial court did not consider it or address it in its 52-page decision.
In any event, we reject Mark’s argument on the merits.
Initially, we note Mark’s fails to address whether a restaurant
– as opposed to its patrons – has a right to freedom of
assembly. Even assuming, however, that Mark’s has such a right,
or has standing to bring a First Amendment challenge on behalf
of its patrons or employees, its contention fails. The First
Amendment guarantees that “Congress shall make no
law . . . abridging . . . the right of the people to peaceably
assemble.” (U.S. Const. 1st Amend.) Constitutional rights,
however, “may at times, under the pressure of great dangers” be
restricted “as the safety of the general public may demand.”
(Jacobson, supra, 197 U.S. at p. 29.) Specifically, states may
impose reasonable restrictions on the time, place, and manner of
protected speech and assembly provided the restrictions “‘are
justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the information.’
[Citations.]” (Ward v. Rock Against Racism (1989) 491 U.S. 781,
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791 [109 S.Ct. 2746, 105 L.Ed. 661] (Ward).) The Order meets
this standard.
First, the Order does not regulate assembly based on the
expressive content of the assembly. Instead, it prohibits all
outdoor dining at restaurants, breweries, wineries, and bars
irrespective of the purpose of the gathering or type of speech the
patrons may wish to express.
Second, as stated above, it is undisputed limiting the
spread of COVID-19 is a legitimate and substantial government
interest. Banning outdoor dining, where people from different
households gather in close proximity for extended periods
without masks, is narrowly tailored to limiting the spread of
COVID-19. (See Ward, supra, 491 U.S. at p. 800 [“So long as the
means chosen are not substantially broader than necessary to
achieve the government's interest . . . the regulation will not be
invalid simply because a court concludes that the government's
interest could be adequately served by some less-speech-
restrictive alternative.”].)
Third, the Order leaves open alternative channels for
assembling, i.e., videoconference or in-person socially distant
gatherings with face coverings. (See, e.g., Amato v. Elicker (D.
Conn. 2020) 460 F.Supp.3d 202, 222 [“[T]he limitation on the size
of in-person social and recreational gatherings leaves open
alternative channels of expression: . . . residents are free to
communicate and express themselves in any means other than a
large, in-person gathering. They may assemble in small groups
and may communicate with any number of people over the phone
or over videoconference.”].) We therefore conclude the Order does
not violate Mark’s purported First Amendment right to freedom
of assembly or that of its patrons.
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DISPOSITION
Let a peremptory writ of mandate issue directing
respondent court to vacate its December 15, 2020 order enjoining
the County from enforcing its orders to the extent they prohibit
outdoor dining until after conducting an appropriate risk-benefit
analysis, and enter a new order denying the Restaurateurs’
request for a preliminary injunction. The County is awarded its
costs in this original proceeding.
CURREY, J.
◦ WE CONCUR:
◦ MANELLA, P. J.
◦ WILLHITE, P. J.
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