NOT FOR PUBLICATION

FILED

APR 16 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALVARY CHAPEL SAN JOSE, a No. 23-15445 California Non-Profit Corporation; MIKE MCCLURE, D.C. No. 5:20-cv-03794-BLF

Plaintiffs-Appellants,

MEMORANDUM*

v.

COUNTY OF SANTA CLARA; JAMES

R. WILLIAMS,

Defendants-Appellees,

and

SARA H. CODY, in her official capacity as Santa Clara County Public Health Officer; MIKE WASSERMAN, in his official capacity as a Santa Clara County Supervisor; CINDY CHAVEZ, in his official capacity as a Santa Clara County Supervisor; DAVE CORTESE, in his official capacity as a Santa Clara County Supervisor; SUSAN ELLENBERG, in her official capacity as a Santa Clara County Supervisor; JOE SIMITIAN, in his official capacity as a Santa Clara County Supervisor,

Defendants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted April 12, 2024** San Francisco, California

Before: SCHROEDER, GRABER, and SUNG, Circuit Judges.

Plaintiffs Calvary Chapel San Jose and Pastor Mike McClure (“Calvary”),

appeal the district court’s dismissal of their action challenging the constitutionality

of public health orders issued by California and Santa Clara County during the

COVID-19 pandemic. Because of the County’s pending state enforcement

proceedings against Calvary, the district court abstained under the Younger

doctrine, dismissing Calvary’s claims for injunctive and declaratory relief and

staying its claims for monetary relief. See ReadyLink Healthcare, Inc. v. State

Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014) (describing the abstention

doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971)). The district court had

previously dismissed Calvary’s First Amendment retaliation claim as barred by the

Noerr-Pennington doctrine because the County Counsel’s allegedly retaliatory

conduct was incidental to its state enforcement lawsuit and thus protected. See

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1006–07 (9th Cir.

2008) (describing the Noerr-Pennington immunity doctrine). We affirm the

district court’s abstention under Younger, and we dismiss, for lack of jurisdiction,

Calvary’s appeal of the district court’s dismissal of the retaliation claim.

Calvary first maintains that the County waived reliance on Younger

abstention because the County did not raise the issue until after filing other

motions to dismiss and after a hearing on summary judgment had been set.

Calvary relies on Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1106

(9th Cir. 1988), but there Younger abstention was raised only after two prior

appeals, one of which reached the Supreme Court. Here, the Younger claim was

raised before any final judgment had been entered. It was not untimely.

The requirements for Younger abstention were also met here. See

ReadyLink, 754 F.3d at 758 (The State proceeding must be “ongoing”; “implicate

important state interests”; provide “an adequate opportunity . . . to raise

constitutional challenges”; and the federal action must “enjoin—or have the

practical effect of enjoining—[the] state proceedings.” (quoting Middlesex Cnty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). The County

initiated the state proceedings before the district court considered the merits of this

action, so the proceedings were “ongoing.” See Nationwide Biweekly Admin., Inc.

3 v. Owen, 873 F.3d 716, 728 (9th Cir. 2017). The state proceedings implicated

important state interests in public health and safety. See Herrera v. City of

Palmdale, 918 F.3d 1037, 1045 (9th Cir. 2019). Moreover, state procedures

presumptively provide an opportunity to present constitutional claims, and Calvary

did not meet its burden to show that they are procedurally barred from presenting

those claims. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14–15 (1987). Indeed,

Calvary actually presented constitutional defenses in state court. The district court

also correctly held that Calvary’s requested relief would have the practical effect of

enjoining the state proceedings. See Herrera, 918 F.3d at 1047–49. Because the

requirements for Younger abstention were met and no exception applied, the

district court properly abstained. See ReadyLink, 754 F.3d at 759.

The district court ruled that Calvary’s First Amendment retaliation claim

was barred by the Noerr-Pennington doctrine because the County Counsel’s

allegedly retaliatory conduct—informing Calvary’s lender of the County’s state

enforcement lawsuit—was incidental to that lawsuit and thus protected. See Theme

Promotions, Inc., 546 F.3d at 1007 (“Conduct incidental to a lawsuit . . . falls

within the protection of the Noerr-Pennington doctrine.”). As the County correctly

points out, there is not yet a final judgment, so we lack appellate jurisdiction to

review the interlocutory dismissal of the retaliation claim. 28 U.S.C. § 1291.

4 AFFIRMED in part and DISMISSED in part. Each party shall bear its

own costs on appeal.

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