NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 12 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEST SUPPLEMENT GUIDE, LLC; SEAN No. 20-17362

COVELL,

D.C. No. Plaintiffs-Appellants, 2:20-cv-00965-JAM-CKD

v.

MEMORANDUM*

GAVIN NEWSOM, in his official capacity as the 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; COUNTY OF SAN JOAQUIN; CITY OF LODI; MAGGIE PARK, MD., in her official capacity as the Public Health Officer of San Joaquin County,

Defendants-Appellees,

and

KATHERINE MILLER, in her official capacity as a member of, and the Chair of the San Joaquin County Board of Supervisors; TOM PATTI, in his official capacity as a member of, and as Vice Chair of, the San Joaquin County of Board of Supervisors; MIGUEL VILLAPUDUA, in his official capacity as a member of the San Joaquin

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. County Board of Supervisors; CHUCK WINN, in his official capacity as a member of the San Joaquin County Board of Supervisors; BOB ELLIOTT, in his official capacity as a member of the San Joaquin County Board of Supervisors; SHELLIE LIMA, in her official capacity as the San Joaquin County Director of Emergency Services; PATRICK WITHROW, in his official capacity as the Sheriff of San Joaquin County; DOUG KUEHNE, in his official capacity as a member of the Lodi City Council and Mayor of Lodi; ALAN NAKANISHI, in his official capacity as a member of the Lodi City Council and Mayor Pro Tempore of Lodi; MARK CHANDLER, in his official capacity as a member of the Lodi City Council; JOANNE MOUNCE, in her official capacity as a member of the Lodi City Council; SIERRA VRUCIA, in his official capacity as the Chief of the City of Lodi Police Department; SIERRA BRUCIA;

MARCIA CUNNINGHAM,

Defendants.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted December 10, 2021 Pasadena, California Submission deferred December 13, 2021 Resubmitted June 15, 2022

Before: M. SMITH, LEE, and FORREST, Circuit Judges.

Plaintiffs operate a membership-based gym in San Joaquin County,

2 California. Due to state and local public health orders, the gym was required to shut

down for several months during the COVID-19 pandemic. Plaintiffs brought this

lawsuit against a variety of state, city, and county officials, alleging both federal and

state law claims. Because the parties are familiar with the facts, we do not recount

them here, except as necessary to provide context to our ruling. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm the district court’s order dismissing this

case against the city and county defendants. We dismiss the appeal against the state

defendants as moot.

We stayed this case pending our en banc court’s decision in Brach v. Newsom,

No. 20-56291, 2022 WL 2145391 (9th Cir. June 15, 2022). Because Plaintiffs’

request for declaratory and injunctive relief depends on “the mere possibility that

California might again” shut down businesses, all claims against the state defendants

are now moot. Id. at *2. Because Plaintiffs seek damages against the city and county

defendants, however, those claims are not moot. See Porter v. Jones, 319 F.3d 483,

488–89 (9th Cir. 2003) (finding the plaintiff’s claims for damages, including those

brought under the California Constitution, were not moot because they represented

a “live controversy . . . between the parties.”).

Plaintiffs fail to state a First Amendment freedom of speech claim. The public

health orders restricted conduct that only incidentally burdened speech. See Virginia

v. Hicks, 539 U.S. 113, 123–24 (2003). Plaintiffs also fail to state a freedom of

3 association claim. Similar to the dance hall patrons in City of Dallas v. Stanglin, the

gym members here are not an organized group gathering to “take positions on public

questions.” 490 U.S. 19, 24–25 (1989) (quoting Bd. of Dirs. of Rotary Int’l v. Rotary

Club of Duarte, 481 U.S. 537, 548 (1987)).

Plaintiffs’ Fifth Amendment Takings Clause claim also fails. To determine

whether an act constitutes a regulatory taking, courts consider several factors

including (1) “[t]he economic impact of the regulation on the claimant,” (2) “the

extent to which the regulation has interfered with distinct investment-backed

expectations,” and (3) “the character of the governmental action.” Penn Cent.

Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The second and third

factors cut strongly against finding the public health orders were a regulatory taking.

Plaintiffs’ gym was shut down for about five months with an additional eleven

months of restrictions, and the public health orders “adjust[ed] the benefits and

burdens of economic life to promote the common good.” Id.; see also Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 319–20, 342–43

(2002). Likewise, Plaintiffs cannot state a Takings Clause claim under the California

Constitution. See Bottini v. City of San Diego, 238 Cal. Rptr. 3d 260, 283 (Cal. Ct.

App. 2018) (holding that the Penn Central test applies to regulatory takings claims

under the California Constitution).

Neither the Supreme Court nor the Ninth Circuit recognizes the right to

4 intrastate travel, so the district court did not err in dismissing Plaintiffs’ Fourteenth

Amendment right to travel claim. See, e.g., Nunez by Nunez v. City of San Diego,

114 F.3d 935, 944 n.7 (9th Cir. 1997).

Plaintiffs have not stated a Fourteenth Amendment procedural or substantive

due process claim. Even assuming Plaintiffs had adequately alleged a deprivation

of a protected interest, the public health orders fall under a well-recognized category

of governmental actions that satisfy procedural due process. See Halverson v. Skagit

Cnty., 42 F.3d 1257, 1260–61 (9th Cir. 1994) (“[G]overnmental decisions which

affect large areas and are not directed at one or a few individuals do not give rise to

the constitutional procedural due process requirements of individual notice and

hearing.”). As for their substantive due process claim, Plaintiffs have not adequately

alleged any fundamental interest. See Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir.

2018). Thus, rational basis applies to Plaintiffs’ right to property and occupation

claims, but they have not shown that the public health orders are “clearly arbitrary

and unreasonable, having no substantial relation to the public health, safety, morals

or general welfare.” Slidewaters LLC v. Wash. State Dep’t of Labor and Indus., 4

F.4th 747, 758 (9th Cir. 2021) (quoting Samson v. City of Bainbridge Island, 683

F.3d 1051, 1058 (9th Cir. 2012)).

As for Plaintiffs’ equal protection claim, they have not plausibly alleged they

received discriminatory treatment as compared to a similarly situated group. See

5 Thornton v. City of St. Helens, 425 F.3d 1158, 1167–68 (9th Cir. 2005). Plaintiffs’

equal protection claim under the California Constitution similarly fails. See

Kenneally v. Med. Bd., 32 Cal. Rptr. 2d 504, 507 (Cal. Ct. App. 1994) (holding that

equal protection under the Fourteenth Amendment and the California Constitution

are “substantially equivalent and are analyzed in a similar fashion.”).

Plaintiffs fail to state a Contracts Clause claim. Even assuming that the public

health orders substantially impaired contractual relationships, Plaintiffs have not

carried their burden of proving that the orders were not “an ‘appropriate’ and

‘reasonable’ way to advance ‘a significant and legitimate public purpose.’” Sveen

v. Melin, 138 S. Ct. 1815, 1822 (2018) (quoting Energy Rsrvs. Grp., Inc. v. Kansas

Power & Light Co., 459 U.S. 400, 411–412 (1983)); see also Apartment Ass’n of

Los Angeles Cnty., Inc. v. City of Los Angeles, 10 F.4th 905, 913 (9th Cir. 2021),

cert. denied, 142 S. Ct. 1699 (2022).

Lastly, Plaintiffs cannot state a claim for a violation of their right to liberty

pursuant to article I, section 1 of the California Constitution. See Nat. Org. for

Reform of Marijuana Laws v. Gain, 161 Cal. Rptr. 181, 187 (Cal. Ct. App. 1979)

(“The guarantees of that section are not absolute and do not operate as a curtailment

on the basic power of the Legislature to enact reasonable police regulations.”).

We dismiss this appeal against the state defendants as moot and remand with

instructions for the district court to vacate its judgment and dismiss the state

6 defendants from this lawsuit. We affirm the district court’s order dismissing all

claims against the city and county defendants.

AFFIRMED IN PART, DISMISSED IN PART, AND REMANDED.

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