Judge: Joel L. Lofton, Case: 21GDCV00970, Date: 2022-08-18 Tentative Ruling

Case Number: 21GDCV00970    Hearing Date: August 18, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      August 18, 2022                                  TRIAL DATE:  No date set.

CASE:                         MISSION FITNESS CENTER, LLC, a California limited liability company; CALIFORNIA CROSSFIT, LLC, a California limited liability company; FITNESS FIRST, INC., a California corporation; REP MAX PERFORMANCE, LLC, a California limited liability company; SOCAL POWERLIFTING, LLC, a California limited liability company; MOVEMENT FX, LLC, a California limited liability company; LYONS PROPERTY MANAGEMENT COMPANY, INC., a California corporation; JAYDA, INC., a California Corporation; KOGYM, LLC, a California corporation; HOUSE OF GAINS GYM, INC., a California corporation; GYM & TONE IT, INC., a California limited liability company; GREY GROUP, LLC, a California limited liability; and GRASSROOTS YOGA, LLC,  a California limited liability company, v. GAVIN NEWSOM, in his official capacity as Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA Y. ANGELL, MD, MPH, in her official capacity as the Director and State Public Health Officer; and DOES 1 through 100.

CASE NO.:                 21GDCV00970

DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:              Defendants Gavin Newsom, Governor of California, Rob Bonta, California Attorney General, Tomás Aragón, Director of the California Department of Public Health (“State Defendants”)

RESPONDING PARTY:     Plaintiffs Mission Fitness Center, LLC; California Crossfit, LLC; Fitness First, Inc., Rep Max Performance, LLC, SoCal Powerlifting, LLC, Movement FX, LLC, Lyons Property Management Company, Inc, Jayda, Inc., KO Gym, LLC, House of Gains Gym, Inc., Gym & Tone It, Inc., Grey Group, LLC, and Grassroots Yoga, LLC (“Plaintiffs”)

SERVICE:                             Filed April 28, 2022

OPPOSITION:                      Filed August 5, 2022

REPLY:                                   Filed August 11, 2022         

RELIEF REQUESTED

            State Defendants Demurrer to the entirety of the first amended complaint.

BACKGROUND

            This claim arises out of Plaintiffs Mission Fitness Center, LLC, et al.’s (“Plaintiffs”) claim that their various gym businesses were harmed as a result of the closure and other requirements placed on businesses categorized as “non-essential” in response to the Covid-19 pandemic. Plaintiffs filed a first amended complaint (“FAC”) on April 1, 2022, alleging four causes of action for (1) violation of the California Constitution, right to liberty, (2) violation of the California Constitution, equal protection, (3), impairing contractual obligations, and (4) commandeering private property or personnel.

TENTATIVE RULING

            The State Defendants’ demurrer to Plaintiff’s first, second, third, and fourth causes of action is sustained without leave to amend.

REQUESTS FOR JUDICIAL NOTICE

The State Defendants’ request for judicial notice of exhibits A through T is granted pursuant to Evidence Code section 452, subdivisions (b) and (c).

LEGAL STANDARD

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

DISCUSSION

            Meet and Confer

            Counsel for the State Defendants provide that on April 26, 2022, he met and conferred with Plaintiffs’ counsel by telephone, but the parties were unable to reach an agreement on the issues raised by the demurrer. (Killeen Decl. ¶ 2.) The State Defendants have fulfilled the meet and confer requirements of Code of Civil Procedure section 430.41.

            Plaintiffs’ First Three Causes of Action are Not Justiciable Controversies

            State Defendants demurrer to the FAC’s first three causes of action on the grounds that the issues presented are moot. State Defendants assert that the challenged orders were rescinded by Executive Order N-07-21. (RJN Exhibit L.)

            In opposition, Plaintiffs concede that Executive Order N-07-21 rescinded the orders challenged. Plaintiffs now pivot their argument to assert that Executive Order N-07-21 is unlawful.

            “California courts will decide only justiciable controversies. [citation.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy....’ [citation.] Justiciability thus ‘involves the intertwined criteria of ripeness and standing. A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’ “ (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.)

“The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated.” (Center for Local Government Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1157.)

Here, there is no longer a disagreement between the parties that the two previously challenged orders impacting the operations of Plaintiffs’ business have been rescinded and are now moot. However, Plaintiffs claim that Executive Order N-07-21 is invalid because the State Defendants can continue to issue emergency orders and the State Defendants bypass the procedures of the Administrative Procedure Act (“APA”).

The issue, then, is whether Plaintiffs’ contention that their challenge of Executive Order N-07-21 is a justiciable claim. Plaintiffs’ FAC alleges that “there is a real and present likelihood of recurrence of the infringement and harm on gyms, fitness, and wellness centers that occurred with the previous Orders regarding closure and related restrictions on business activity.” (FAC ¶ 64.)

Plaintiffs’ assertions, however, are based on a hypothetical future event. “The ripeness requirement prevents courts from issuing purely advisory or hypothetical opinions.” (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1221.) Plaintiffs are seeking to prohibit the State Defendants from potentially acting in a certain manner in the future, rather than alleging a materialized harm that requires judicial intervention. Plaintiffs’ abstract claim that the State Defendants will impose restrictions on their businesses in the future does not present a justiciable controversy. Thus, Plaintiffs’ claim that Executive Order N-07-21 imposes unlawful restrictions is unripe because Plaintiffs fail to allege a materialized restriction.

Each of Plaintiffs’ first three cause of action depends on challenges to moot issues, such as alleging the rescinded orders, or unripe issues, such as alleging that Executive Order N-07-21 may be used to restrict Plaintiffs’ businesses in the future. Thus, the State Defendants’ demurrer to Plaintiffs’ first, second, and third causes of action is sustained.

Fourth Cause of Action for Commandeering Private Property

            Plaintiffs’ fourth cause of action alleges that the State Defendants “commandeered and utilized Plaintiffs’ businesses”. (FAC ¶ 257.)

Government Code section 8572 provides, in part, that the “Governor is authorized to commandeer or utilize any private property or personnel deemed by him necessary . . . and the state shall pay the reasonable value thereof.” Government Code section 8652 provides: “Before payment may be made by the state to any person in reimbursement for taking or damaging private property necessarily utilized by the Governor in carrying out his or her responsibilities under this chapter during a state of war emergency or state of emergency, or for services rendered at the instance of the Governor under those conditions, the person shall present a claim to the Department of General Services in accordance with the provisions of the Government Code governing the presentation of claims against the state for the taking or damaging of private property for public use, which provisions shall govern the presentment, allowance, or rejection of the claims and the conditions upon which suit may be brought against the state. Payment for property or services shall be made from any funds appropriated by the state for that purpose.”

Here, Plaintiffs do not allege that the challenged orders were promulgated under Government Code section 8572, that the State Defendants physically commandeered or utilized their private property, or that Plaintiffs presented a claim to the Department of General Services as required by Government Code section 8652. Plaintiffs’ fourth cause of action fails to state a claim.

The State Defendants’ demurrer to Plaintiff’s fourth cause of action is sustained.

CONCLUSION

            The State Defendants’ demurrer to Plaintiff’s first, second, third, and fourth causes of action is sustained without leave to amend.

Dated:   August 18, 2022                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.