1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 CALVARY CHAPEL SAN JOSE, et al., Case No. 20-cv-03794-BLF

8 Plaintiffs,

ORDER DENYING APPLICATION

9 v. FOR TEMPORARY RESTRAINING

ORDER

10 SARA CODY, et al., [Re: ECF 42] 11 Defendants.

12 13 “‘Our Federalism,’ born in the early struggling days of our Union of States, occupies a 14 highly important place in our Nation’s history and its future.” Younger v. Harris, 401 U.S. 37, 44- 15 45 (1971). Our Federalism, as articulated by Justice Black, represents “a system in which there is 16 sensitivity to the legitimate interests of both State and National Governments, and in which the 17 National Government, anxious though it may be to vindicate and protect federal rights and federal 18 interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Id. at 44. Amidst the struggling days of the COVID-19 pandemic, 19 Plaintiffs Calvary Chapel San Jose, Southridge Baptist Church, Mike McClure, and Micaiah 20 Irmler (collectively, “Plaintiffs”) ask this Court to disregard Our Federalism and seek a temporary 21 restraining order to enjoin 1) enforcement of a preliminary injunction issued by a state court that 22 Plaintiffs have blatantly flouted and 2) the ongoing state court proceedings. See Appl. for TRO, 23 ECF 42. After considering the Parties’ briefing and oral arguments on December 17, 2020, the 24 Court finds it inappropriate to interfere with the Santa Clara County Superior Court proceedings 25 and invokes the Younger abstention doctrine. Accordingly, Plaintiffs’ application for a temporary 26 restraining order is DENIED. 27 1 I. BACKGROUND 2 Every person in the United States is aware of the COVID-19 pandemic, the highly 3 contagious nature of the disease, and the steps public health officers, states, and municipalities 4 across the county have recommended to slow its deadly and destructive path. See Decl. of Sara H. 5 Cody (“Cody Decl.”) ¶ 6, ECF 55-1. Defendants Sara Cody, the Santa Clara County Public Health 6 Officer; Erica Pan, the Acting California Public Health Officer; Gavin Newsom, the Governor of 7 California; Santa Clara County Supervisors Mike Wasserman, Cindy Chavez, Dave Cortese, 8 Susan Ellenberg, and Joe Simitian; and the County of Santa Clara (collectively, “Defendants”) 9 have relied on evolving scientific knowledge and data to implement countywide and statewide 10 measures to curb the spread of COVID-19. Decl. of Marc Lipsitch (“Lipsitch Decl.”) ¶ 24, ECF 11 55-2. Defendants, by their own admission, have decided to ignore the State and County public 12 health orders. See Decl. of Mike McClure (“McClure Decl.”) ¶¶ 2, 3, 9, ECF 43. 13 Plaintiffs resumed holding indoor religious services for 800-1000 people every Sunday 14 starting on May 31, 2020. McClure Decl. ¶¶ 2, 3. Plaintiffs initially filed their complaint in this 15 Court on June 9, 2020, alleging violations of the First Amendment’s Free Exercise and 16 Establishment Clauses, as well as a violation of their right to privacy under the California 17 Constitution. See Compl., ECF 1. Plaintiffs did not serve Defendants until June 25, 2020. See 18 Executed Summonses, ECF 6-11. One day earlier, on June 24, 2020, Santa Clara County (“the 19 County”) received an anonymous report of violations at the church. See Ex. N, Anonymous 20 Written Complaint 274, ECF 56. Concerning Calvary Chapel San Jose, the author wrote, “I have 21 gone there. The place is full, no masks and no social distancing.” Id. On August 11, 2020, the 22 County Board of Supervisors adopted Urgency Ordinance No. NS-9.921, declaring violations of 23 the COVID-19 public health orders a public nuisance and authorizing civil administrative fines for 24 violations. First Am. Compl. (“FAC”) ¶ 63, ECF 38. On August 21, 2020, the County hand 25 delivered a cease-and-desist letter to Calvary Chapel San Jose. Ex. M, Tr. of October 21, 2020 26 County Administrative Appeal Hearing (“Hearing Transcript”) 32:10-23, ECF 56; Decl. of 27 Melissa Gonzalez (“Gonzalez Decl.”) ¶ 8, ECF 55-3. The letter demanded that Calvary Chapel 1 maintain social distance, and refrain from singing; and submit a County-required social distancing 2 protocol. Gonzalez Decl. ¶ 8. Calvary Chapel San Jose ignored the letter and continued to host 3 large indoor gatherings with no mask or social distancing enforcement. Id. ¶¶ 9-74. For instance, 4 on Sunday, August 23, 2020, a County enforcement officer entered Calvary Chapel San Jose and 5 observed singing and “at least 100 people in the church who were not wearing face coverings and 6 not maintaining a distance of at least 6 feet apart.” Id. ¶ 3, 10. In contrast, the enforcement officer 7 noted that a church next to Calvary Chapel San Jose was holding an outdoor worship service and 8 that attendees were wearing face coverings and maintaining a minimum of six feet of social 9 distancing, in compliance with the public health orders. Id. ¶ 9. 10 This evidence is undisputed—Plaintiff Mike McClure, the lead pastor at Calvary Chapel 11 San Jose, stated that the church has been holding indoor services since May 31, 2020, and plans to 12 continue to do so. McClure Decl. ¶¶ 1, 3, 9. McClure additionally stated that he “advised” people 13 inside the church to social distance and wear face masks and that the Church “provides” masks at 14 the entrance, but there is no mention of enforcing these safety measures. Id. ¶ 11. This stands in 15 stark contrast to the facts of Roman Catholic Diocese of Brooklyn v. Cuomo, where the Court 16 noted that the plaintiffs, who are houses of worship, “have complied with all public health 17 guidance, have implemented additional precautionary measures, and have operated at 25% or 33% 18 capacity for months without a single outbreak.” ---- U.S. ----, 2020 WL 6948354, at *2 (Nov. 25, 19 2020). 20 As a result of Calvary Chapel San Jose’s noncompliance with the cease-and-desist letter, 21 the County enforcement officers began issuing notices of violation to the church each time it held 22 an indoor gathering in violation of the public health orders. Gonzalez Decl. ¶¶ 9-74. Calvary 23 Chapel San Jose appealed the notices of violation and associated fines, and an administrative 24 hearing was held on October 21, 2020. See Hearing Transcript. At the hearing, Calvary Chapel 25 San Jose indicated that it intended to continue its noncompliant indoor gatherings as the County 26 continued to issue fines. Hearing Transcript 117:21-119:14. The hearing officer upheld the fines 27 and stated on the record that “It just seems to me that the church sort of just thumbed its nose at 1 the law is.’ We can’t have that. We have to have compliance with the law.” Id. 120:9-14, 120:20- 2 121:4. 3 Before even receiving the anonymous complaint on June 24, 2020, the County had been in 4 an informal dialogue with counsel for Calvary Chapel San Jose in attempt to secure the church’s 5 voluntary compliance with the State and County public health orders. Declaration of Jeremy A. 6 Avila (“Avila Decl.”) ¶¶ 3-6, ECF 56. The conversations started in May, and by September the 7 County offered Calvary Chapel San Jose a proposal to resolve the violations and bring the church 8 into compliance. Id. ¶¶ 4-5. Calvary Chapel San Jose declined the proposal on September 30, 9 2020. Id. ¶ 5. 10 With efforts at voluntary compliance and amicable resolution proving futile, the County 11 counsel and Santa Clara County District Attorney jointly initiated an enforcement action against 12 Calvary Chapel San Jose and McClure in Santa Clara County Superior Court on October 27, 2020. 13 Ex. O., Compl., ECF 56. The complaint alleged two state causes of action: 1) violation of State 14 and County public health orders and 2) public nuisance. See id. On October 29, 2020, the state 15 court plaintiffs filed an ex parte request for a temporary restraining order, which Calvary Chapel 16 San Jose opposed by asserting federal constitutional defenses. See Ex. L, State Court Docket, ECF 17 56; Ex P., Decl. of Mike McClure in Opp’n to Defs’ Ex Parte Appl. for TRO, ECF 56. After a 18 November 2, 2020 hearing, the state court granted the temporary restraining order and enjoined 19 Calvary Chapel San Jose and McClure from conducting any gathering that did not comply with 20 both the State and County public health orders and operating indoors or outdoors without the prior 21 submission and implementation of a social distancing protocol. Ex. B., November 2, 2020 Order, 22 ECF 42-2. 23 As the County’s investigation and informal efforts to obtain voluntary compliance 24 continued, the County filed a motion to dismiss the federal action on July 17, 2020. See Mot., ECF 25 17. On November 5, 2020, this Court held a hearing on the motion to dismiss and issued a written 26 order on the same day dismissing all claims with leave to amend. Order, ECF 30. This case was 27 without an operative complaint until Plaintiffs filed their amended complaint on November 25, 1 Calvary Chapel San Jose ignored the November 2 state court temporary restraining order 2 and continued to hold indoor gatherings that violated the order every day. Gonzalez Decl. ¶¶ 36- 3 74. On November 24, 2020, the state court issued an Order to Show Cause against Calvary Chapel 4 San Jose and McClure and set a hearing for contempt proceedings. See State Court Docket. On the 5 same day, the state court issued a modified temporary restraining order at the request of the 6 County due to the change in public health orders based on the increased number of COVID-19 7 infections in the County. See Id; Order (“State Court Order”) 2, ECF 42-5. On December 1, 2020, 8 the state court held a hearing on the County’s request for a preliminary injunction, and that was 9 granted in a written order on December 4, 2020. Minute Order, ECF 42-4; State Court Order. 10 Superior Court Judge Peter H. Kirwan considered the federal constitutional arguments advanced 11 by Calvary Chapel San Jose and McClure and the Supreme Court’s newly issued guidance in 12 Diocese of Brooklyn, and he decided that the issuance of a preliminary injunction requiring 13 Calvary Chapel San Jose and McClure to comply with existing public health orders was 14 appropriate. State Court Order 7-8. 15 At the contempt hearing on December 8, 2020, the state court held Calvary Chapel San 16 Jose and McClure in contempt for violating the November 2 temporary restraining order and 17 ordered them to pay $55,000 in fines. Opp’n 9, ECF 55. Plaintiffs’ counsel confirmed the amount 18 of the fine at this Court’s December 17, 2020 hearing. 19 Against this backdrop, Plaintiffs filed an ex parte application for a temporary restraining 20 order in this Court on December 8, 2020. See Appl. for TRO. Plaintiffs ask this Court to enjoin 21 Defendants from “enforcing the Preliminary Injunction in the matter of the People of the State of 22 California, et al. v. Calvary Chapel San Jose, et al., Case No. 20CV372285, or any such other 23 future orders from the Superior Court limiting, barring, or prohibiting indoor religious assembly 24 and indoor religious singing(worship) against Plaintiffs or otherwise interfering with Plaintiffs’ 25 religious gatherings.” Proposed Order, ECF 42-9. In effect, Plaintiffs ask that they be exempt 26 from all public health restrictions. The Court ordered Defendants to respond to Plaintiffs’ filing by 27 December 14, 2020. See Order, ECF 51. At the Court’s invitation, Plaintiffs submitted a reply 1 on December 17, 2020. 2 3 II. LEGAL STANDARD 4 Preliminary injunctive relief, whether in the form of a temporary restraining order or a 5 preliminary injunction, is an “extraordinary and drastic remedy,” that is never awarded as of right. 6 Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal citations omitted). The standard for 7 issuing a temporary restraining order is identical to the standard for issuing a preliminary 8 injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 9 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 887 F. Supp. 1320, 1323 (N.D. Cal. 10 1995). An injunction is a matter of equitable discretion and “may only be awarded upon a clear 11 showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, 12 Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking preliminary injunctive relief must establish “[1] 13 that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the 14 absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an 15 injunction is in the public interest.” Id. at 20. “[I]f a plaintiff can only show that there are serious 16 questions going to the merits – a lesser showing than likelihood of success on the merits – then a 17 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's 18 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 19 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). 20 21 III. DISCUSSION 22 This Court is mindful that its “obligation to hear and decide a case is ‘virtually 23 unflagging.’” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (citing Colorado River 24 Water Conservation Distr. v. United States, 424 U.S. 800, 871 (1976)). An exception to this 25 general rule is the doctrine of abstention, which involves “a decision by a federal court to decline 26 to exercise jurisdiction over the underlying claims for reasons of comity.” Washington v. Los 27 Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1058 (9th Cir. 2016) (citations omitted). In civil 1 (1) is ongoing; (2) is a quasi-criminal enforcement action or involves a state’s interest in 2 enforcing the orders and judgments of its courts; (3) implicates important state interests; 3 (4) provides an adequate opportunity to raise federal challenges; and (5) would be enjoined by the federal court action or where the federal proceeding would have the practical effect 4 of doing so, and no exception to Younger applies. 5 6 Bristol-Myers Squibb Co. v. Connors, 444 F. Supp. 3d 1231, 1234 (D. Haw. 2020) (citing 7 Rynearson v. Ferguson, 903 F.3d 920, 924 (9th Cir. 2018)), aff’d, 979 F.3d 732 (9th Cir. 2020). 8 “Any doubts as to the propriety of a federal injunction against state court proceedings should be 9 resolved in favor of permitting the state courts to proceed.” Atlantic Coast Line R. Co. v. 10 Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970). The Supreme Court has held 11 that abstention is appropriate with respect to Superior Court contempt proceedings. See Juidice v. 12 Vail, 430 U.S. 327, 336 (1977) (“federal-court interference with the State’s contempt process is an 13 offense to the State’s interest . . . likely to be every bit as great as it would be were this a criminal 14 proceeding.”) (alteration in original) (quotations and citation omitted); Pennzoil Co. v. Texaco, 15 Inc., 481 U.S. 1, 13 (1987) (applying Juidice’s holding that a federal court should have abstained 16 from adjudicating a challenge to a State’s contempt process). 17 Plaintiffs do not contest that the state court proceeding is an enforcement action, implicates 18 important state interests, provides an opportunity to raise federal challenges, and would be 19 enjoined by the federal court action. Indeed, the Court in Diocese of Brooklyn recently affirmed 20 that “[s]temming the spread of COVID-19 is unquestionably a compelling state interest.” 2020 21 WL 6948354, at *2. In their reply brief, Plaintiffs challenge whether the state court proceedings 22 are “ongoing” as required under Younger. While “[a]rguments raised for the first time in a reply 23 brief are waived,” Autotel v. Nevada Bell Tel. Co., 697 F.3d 846, 852 n.3 (9th Cir. 2012) (citation 24 omitted), the Court nonetheless finds that the state court proceedings are, in fact, ongoing, as a 25 preliminary injunction is just the beginning, not the end, of a case. The County confirmed this at 26 the December 17, 2020 hearing by informing the Court that it has begun serving discovery 27 requests in the state court action. Moreover, the Court finds that the case Plaintiffs cite to support 1 349 (1975), actually supports the opposite conclusion. In Hicks, the Court held, “where state 2 criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but 3 before any proceedings of substance on the merits have taken place in the federal court, the 4 principles of Younger v. Harris should apply in full force.” Id. This federal case has not yet 5 advanced past the pleadings stage, and there was no operative complaint in this case when the 6 state court set the contempt hearing. 7 Plaintiffs argue that there are extraordinary circumstances here that merit an exception to 8 Younger abstention. Appl. For TRO 6-7. Federal courts will decline to abstain under Younger in 9 “extraordinary circumstances where irreparable injury can be shown.” Brown v. Ahern, 676 F.3d 10 899, 903 (9th Cir. 2012). Irreparable injury alone, without a showing of great and immediate need, 11 is not enough. Younger, 401 U.S. at 46. “The very nature of ‘extraordinary circumstances,’ of 12 course, makes it impossible to anticipate and define every situation that might create a sufficient 13 threat of such great, immediate, and irreparable injury.” Moore v. Sims, 442 U.S. 415, 433 (1979) 14 (quoting Kugler v. Helfant, 421 U.S. 117, 124-25 (1975)). “But whatever else is required, such 15 circumstances must be ‘extraordinary’ in the sense of creating an extraordinarily pressing need for 16 immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual 17 situation.” Moore, 442 U.S. at 433 (quoting Kugler, 421 U.S. at 125) (emphasis added). 18 Plaintiffs have not presented any evidence demonstrating an extraordinary circumstance— 19 the Court certainly cannot make that determination based on Plaintiffs’ argument that “[t]his is a 20 know it when you see it situation.” Appl. For TRO 7. Plaintiffs cite Diocese of Brooklyn for the 21 proposition that “[t]he loss of First Amendment Freedoms, for even minimal periods of time, 22 unquestionably constitutes irreparable injury.” 2020 WL 6948354, at *3 (quoting Elrod v. Burns, 23 427 U.S. 347, 373 (1976) (plurality opinion)). Diocese of Brooklyn, though, did not involve 24 abstention and did not evaluate what constitutes an “extraordinary circumstance” under Younger. 25 Plaintiffs have not cited, and this Court is not aware of, any Supreme Court or Ninth Circuit case 26 holding that all First Amendment challenges are extraordinary and immediate under 27 Younger. Absent additional evidence, the Court declines to make such a finding on this record, 1 enjoining the state court proceedings and enforcement action. 2 3 IV. ORDER 4 The Court acknowledges the importance of First Amendment freedoms, as recently 5 reiterated by the Supreme Court in Diocese of Brooklyn and the Ninth Circuit in Dayton Valley v. 6 Sisolak, ---- F.3d ----, 2020 WL 7350247, at *3 (9th Cir. Dec. 15, 2020). The First Amendment, 7 || though, is not the issue before this Court on this narrowly focused temporary restraining order 8 seeking to enjoin the state court proceedings. Our Federalism properly places this dispute in the 9 more-than-capable hands of the Santa Clara County Superior Court. The asserted claims in this 10 || federal action are not affected by this order. 11 Plaintiffs’ application for a temporary restraining order is DENIED. a 12

= 13 || Dated: December 18, 2020 kom Lh yy én) Ss Se

BETH LABSON FREEMAN

15 United States District Judge 16

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