JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

Dev Deep Das, Alexandra S. Kazarian, Mark John Geragos, Matthew Michael Hoesly, Geragos and Geragos APC, Los Angeles, CA, Mark P. Meuser, Harmeet K. Dhillon, Dhillon Law Group Inc., San Francisco, CA, for Calm Ventures LLC.

Anthony J. Tartaglio, CAAG - Office of Attorney General California Department of Justice, San Francisco, CA, for Gavin Newsom, Xavier Becerra, Erica S. Pan, Rob Bonta.

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [filed 5/14/21; Docket No. 60]

JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

On May 14, 2021, Defendants Gavin Newsom ("Newsom"), Rob Bonita ("Bonita"), and Erica Pan ("Pan") in their official capacities (collectively, "Defendants"), filed a Motion to Dismiss ("Motion"). On May 24, 2021, Plaintiff Calm Ventures LLC, d/b/a Pineapple Hill Saloon and Grill ("Plaintiff") filed its Opposition. On May 27, 2021, Defendants filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the papers without oral argument. The matter was, therefore, removed from the Court's June 14, 2021 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

I. Factual and Procedural Background

A. Factual Background

The Court and the parties are very familiar with the COVID-19 pandemic and the devastating impact it has had on society. In the United States, it is estimated that approximately 114.6 million people in the United States have been infected with COVID-19 and over 600,000 have died so far. In California, over 3,700,000 people have been infected and over 63,000 people have died so far. As a result of the pandemic, most state and local governments enacted a variety of restrictions on businesses and public gatherings in an effort to prevent or limit the transmission of the virus. See Slidewaters LLC v. Washington State Department of Labor and Industries , 4 F.4th 747 (9th Cir. 2021). Those restrictions have changed and evolved over time as conditions in various parts of the country changed and as the scientific understanding of COVID-19 improved. In addition, the overwhelming majority of those restrictions have now been removed or eliminated following the emergency approval of multiple vaccines that appear to offer recipients a high degree of protection against COVID-19 and a nationwide effort to administer those vaccines to as many individuals as possible.

On August 28, 2020, the California Department of Public Health ("CDPH") issued a Statewide Public Health Officer Order known as the Blueprint for a Safer Economy ("Blueprint"), which is a framework of risk tiers and sector-specific restrictions applied and periodically adjusted on a county-by-county basis by the State of California (the "State"). Counties are assigned one of four tiers based on that county's COVID-19 infection rate and other metrics: "Tier 1/Purple – Widespread"; "Tier 2/Red – Substantial"; "Tier 3/Orange – Moderate"; or "Tier 4/Yellow – Minimal." Which activities or businesses are permitted to open in each tier, and what restrictions are required, is determined based on criteria that reflect the risk of transmission the particular business or activity poses, including the "[a]bility to accommodate face covering wearing at all times (e.g. , eating and drinking would require removal of face coverings)"; the "[a]bility to physically distance between individuals from different households"; the "[a]bility to limit duration of exposure"; the "[a]bility to limit amount of mixing of people from differing households and communities"; and the "[a]bility to limit activities that are known to cause increased spread (e.g. , singing, shouting, heavy breathing; loud environs will cause people to raise voice)."

Plaintiff owns a restaurant, Pineapple Hill Saloon & Grill, that is located in Los Angeles County (the "County"), and challenges the COVID-related restrictions put in place by the State regarding the operation of restaurants during the pandemic. When Plaintiff filed this action, the County was in Tier 1/Purple, which limited restaurants to outdoor dining with modifications and takeout and delivery. However, beginning approximately March 15, 2021, the County moved to Tier 2/Red, which allowed restaurants to offer indoor dining with modifications as well as outdoor dining and takeout and delivery. On approximately April 5, 2021, the County moved to Tier 3/Orange, which allowed the expansion of indoor dining at restaurants to fifty percent capacity or 200 diners (whichever was fewer). On approximately May 4, 2021, the County moved to Tier 4/Yellow. On June 15, 2021, the Governor terminated the executive orders that had put into place the Stay at Home Order and the Blueprint. As a result, the county tier system, capacity limits on businesses (including restaurants), and physical distancing requirements (including in restaurants) ended in the State of California (subject to local requirements) on June 15, 2021.

B. Procedural History

On December 20, 2020, Plaintiff filed a Complaint against Defendants. On January 21, 2021, Plaintiff filed a First Amended Complaint which added several plaintiffs, including hair salons, nail salons, skin care business, and restaurants located in other counties in the State. On February 9, 2021, the Court issued and Order to Show Cause Re: Misjoinder ("OSC"), ordering Plaintiff to show cause in writing why one or more of the newly added plaintiffs should not be severed from the action. After Plaintiff filed its Response to the OSC on February 12, 2021, the Court issued an Order severing all the newly added plaintiffs on February 18, 2021 and ordering Plaintiff to file a Second Amended Complaint. On February 26, 2021, Plaintiff filed a Second Amended Complaint ("SAC"), alleging claims for relief for: (1) violation of First Amendment freedom of assembly clause pursuant to 42 U.S.C. § 1983 ; (2) violation of the Due Process Clause of the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 ; (3) violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 ; (4) violation of the Due Process Clause of the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 ; and (5) excessive fines/cruel and unusual punishment in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983.

On March 25, 2021, the Court denied Plaintiff's Motion for Preliminary Injunction. In the March 25, 2021 Order, the Court dismissed Plaintiff's claims to the extent they relied on alleged violations of California state law, including the California Administrative Procedure Act, the California Emergency Services Act, and the California Health and Safety Act on the basis of Eleventh Amendment sovereign immunity.

II. Legal Standard

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. "A Rule 12(b)(6) dismissal is proper only where there is either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ " Summit Technology, Inc. v. High-Line Medical Instruments Co., Inc. , 922 F. Supp. 299, 304 (C.D. Cal. 1996) (quoting Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1988) ). However, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and alterations omitted). "[F]actual allegations must be enough to raise a right to relief above the speculative level." Id.

In deciding a motion to dismiss, a court must accept as true the allegations of the complaint and must construe those allegations in the light most favorable to the nonmoving party. See, e.g., Wyler Summit Partnership v. Turner Broadcasting System, Inc. , 135 F.3d 658, 661 (9th Cir. 1998). "However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations." Summit Technology , 922 F. Supp. at 304 (citing Western Mining Council v. Watt , 643 F.2d 618, 624 (9th Cir. 1981) cert. denied , 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981) ).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) (citations omitted). However, a court may consider material which is properly submitted as part of the complaint and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201 without converting the motion to dismiss into a motion for summary judgment. See, e.g., id. ; Branch v. Tunnell , 14 F.3d 449, 454 (9th Cir. 1994).

Where a motion to dismiss is granted, a district court must decide whether to grant leave to amend. Generally, the Ninth Circuit has a liberal policy favoring amendments and, thus, leave to amend should be freely granted. See, e.g., DeSoto v. Yellow Freight Systems, Inc. , 957 F.2d 655, 658 (9th Cir. 1992). However, a Court does not need to grant leave to amend in cases where the Court determines that permitting a plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v. E. & J. Gallo Winery , 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to amend is not an abuse of discretion where the pleadings before the court demonstrate that further amendment would be futile.").

III. Discussion

In their Motion, Defendants move to dismiss Plaintiff's federal claims alleged in the SAC on the grounds that Plaintiff has failed to state a claim upon which relief can be granted. With respect to Plaintiff's first claim for freedom of assembly, second claim for violation of substantive due process, and third claim for violation of equal protection, Defendants argue that rational basis review applies and that the restrictions on restaurants have a rational basis. With respect to Plaintiff's fourth claim for violation of procedural due process, Defendants argue that because the restrictions on restaurants applied throughout California, Plaintiff is not entitled to an individualized hearing. With respect to Plaintiff's fifth claim for excessive fines and cruel and unusual punishment, Defendants argue that Defendants have not been fined or punished and, thus, cannot maintain that claim. In its Opposition, Plaintiff argues that it has stated claims for relief and Defendants are attempting to improperly disguise a motion for summary judgment as a motion to dismiss.

A. Defendants’ Request for Judicial Notice

Defendants ask the Court to take judicial notice of various documents, primarily consisting of information about the COVID-19 virus and California's Blueprint. Specifically, Defendants ask the Court to take judicial notice of: (1) the Centers for Disease Control's ("CDC") COVID Data Tracker and its publicly reported data; (2) California's "Tracking COVID-19 in California" dashboard and its publicly reported data; (3) the CDC's Science Brief: SARS-CoV-2 and Potential Airborne Transmission (Oct. 5, 2020); (4) California's Beyond the Blueprint for a Safer Economy memorandum; (5) California's Blueprint for a Safer Economy Framework; (6) California's for a Safer Economy and Business Tiers; and (7) California's Blueprint Data Chart. In its Opposition, Plaintiff opposes these requests on the basis that Defendants are attempting to convert a motion to dismiss into a motion for summary judgment.

Having considered the request for judicial notice, the opposition, and the documents themselves, the Court finds that these documents are in the public record and subject to judicial notice under Federal Rule of Evidence 201. See Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001) ("[U]nder Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’ ") (quoting Mack v. South Bay Beer Distrib. , 798 F.2d 1279, 1282 (9th Cir. 1986) ). Accordingly, the Court GRANTS Defendants’ request for judicial notice.

B. Plaintiff's First Claim for Relief for Violation of the First Amendment Freedom of Assembly Clause Pursuant to 42 U.S.C. § 1983 Must Be Dismissed.

1. Rational Basis Review Applies to Plaintiff's Freedom of Assembly Claim.

In the first claim for relief of the SAC, Plaintiff alleges that the Blueprint, the Regional Order, the Stay-at-Home Order, and all the various "shut down orders" issued by the Governor and CDPH (collectively, "Executive Orders") violate Plaintiff's First Amendment freedom of assembly rights. The First Amendment prohibits States "from enacting laws ‘abridging the freedom of speech, ... or the right of the people peaceably to assemble.’ " Long Beach Area Peace Network v. City of Long Beach , 574 F.3d 1011, 1020–21 (9th Cir. 2009) (quoting U.S. Const. Amend. I ). The Supreme Court has interpreted freedom of association to encompass two types of associational rights: (1) intimate association, i.e. , the right to maintain private relationships free of state intrusion; and (2) expressive association, e.g. , "the right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion." U.S. Jaycees , 468 U.S. at 618, 104 S.Ct. 3244.

In this case, the Court concludes that Plaintiff has failed to demonstrate that the Executive Orders implicate any of Plaintiff's protected free assembly or associational rights. Plaintiff's interactions with its customers are not comparable to the type of "intimate human relationships" recognized by the Supreme Court. See id. at 620, 104 S.Ct. 3244 (holding that the type of relationships that might be entitled to protection "are those that attend the creation and sustenance of a family – marriage; childbirth; the raising and education of children; and cohabitation with one's relatives" and that "an association lacking these qualities – such as a large business enterprise – seems remote from the concerns giving rise to this constitutional protection"). In addition, Plaintiff and its customers do not "associate for the purpose of engaging in those activities protected by the First Amendment." Id. Moreover, even to the extent that Plaintiff and its customers may engage in some incidental protected speech (such as political speech), such incidental protected speech "is not sufficient to bring the activity within the protection of the First Amendment." See, e.g., City of Dallas v. Stanglin , 490 U.S. 19, 24-25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (holding that although "[i]t is possible to find some kernel of expression in almost every activity a person undertakes – for example, walking down the street or meeting one's friends at a shopping mall – but such a kernel is not sufficient to bring the activity within the protection of the First Amendment").

In freedom of association cases, the general rule is that "[u]nless laws create suspect classifications or impinge upon constitutional protected rights, it need only be shown that they bear some rational relationship to a legitimate state purpose." Id. at 23, 109 S.Ct. 1591 (citation and quotation omitted). In addition, "in the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction." Thalheimer v. City of San Diego , 645 F.3d 1109, 1116 (9th Cir. 2011), overruled on other grounds by Bd. of Tr. Of Glazing Health & Welfare Tr. v. Chambers , 941 F.3d 1195 (9th Cir. 2019) (en banc ). Because Plaintiff has failed to demonstrate that the Executive Orders impinge on Plaintiff's freedom of assembly or association rights, the Court concludes that rational basis review is the governing standard. Jackson Water Works, Inc. v. Pub. Utilities Comm'n of State of Cal. , 793 F.2d 1090, 1094 (9th Cir. 1986).

2. The Restrictions Related to Restaurants in the Executive Orders Have a Rational Basis.

Under rational basis review, the Court evaluates "whether the legislation bears a rational relationship to a legitimate state interest." Id. ; see also United States v. Navarro , 800 F.3d 1104, 1113 (9th Cir. 2015) ("Under rational-basis review, ‘[t]he burden falls on the party seeking to disprove the rationality of the relationship between the classification and the purpose’ "). To satisfy the rational basis review standard, "[t]here need not be a tight fitting relationship between the legislative goal and the result. All that is needed to uphold the state's classification scheme is to find that there are plausible, arguable, or conceivable reasons which may have been the basis for the distinction." Id. (internal citations and quotation marks omitted). Specifically, when, as in this case, a state exercises its police powers to enact emergency health measures, courts will uphold them unless: (1) the measures have no real or substantial relation to public health; or (2) the measures are "beyond all question" a "plain, palpable invasion of rights secured by ... fundamental law." See Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 37, 25 S.Ct. 358, 49 L.Ed. 643 (1905). Indeed, "[w]hen [public] officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ " South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring) (quoting Marshall v. United States , 414 U.S. 417, 427, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) ); see also South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 141 S. Ct. 716, 717, 209 L.Ed.2d 22 (2021) (Roberts, C.J., concurring) ("holding that the Constitution "principally entrusts the safety and the health of the people to the politically accountable officials of the States") (quoting South Bay , ––– U.S. ––––, 140 S. Ct. at 1614 (Roberts, C.J., concurring)). "Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people." Id. (quoting Garcia v. San Antonio Metro. Transit Auth. , 469 U.S. 528, 545, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) ); see also Fowler Packing Co., Inc. v. Lanier , 844 F.3d 809, 815 (9th Cir. 2016) ("This inquiry is not a ‘license for courts to judge the wisdom, fairness, or logic of legislative choices’; if we find ‘plausible reasons for [California's] action, our inquiry is at an end"). "[R]ational speculation unsupported by evidence or empirical data" is sufficient to satisfy rational basis review. FCC v. Beach Commc'ns, Inc. , 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

In this case, the Court concludes that the Executive Orders undoubtably serve an important and legitimate state interest – preventing the spread of COVID-19 during a global pandemic and protecting Californians’ health and safety. See South Bay , ––– U.S. ––––, 140 S.Ct. at 1614 ("Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ ") (quoting Jacobson v. Massachusetts , 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905) ); Slidewaters , 4 F.4th at 758 ("There is a legitimate state interest in preventing the spread of COVID-19, a deadly contagious disease. This has been recognized by the U.S. Supreme Court. See Roman Cath. Diocese of Brooklyn , 141 S. Ct. at 67 (‘Stemming the spread of COVID-19 is unquestionably a compelling interest ... ‘)"). In addition, the Court concludes that the Executive Orders bear a real and substantial relationship to public health. See, e.g., Altman v. County of Santa Clara , 464 F. Supp. 3d 1106, 1124 (N.D. Cal. 2020) (holding that the Court "easily concludes" that a shelter in place order bears a real and substantial relationship to the public health goals of reducing COVID-19 transmission and preserving health care resources); see also Tandon , 517 F. Supp. 3d at 935–36 (holding that California's Blueprint "bears a real and substantial relationship to public health" because California "has sorted activities based on the risk that they result in the spread of COVID-19"). Moreover, the Court concludes that Plaintiff has failed to demonstrate that the Executive Orders are "beyond all question" a "plain, palpable invasion of rights secured by ... fundamental law." Jacobson , 197 U.S. at 37, 25 S.Ct. 358.

The Blueprint fully explains the reasoning behind the restrictions related to restaurants. Under the Blueprint, "[l]ower risk activities or sectors [were] permitted sooner and higher risk activities or sectors [were] not permitted until later phases of re-opening." In addition, "[m]any activities or sectors [were allowed to] increase the level of operations and capacity as a county reduce[d] its level of transmission." Moreover, the Blueprint listed several risk criteria, including the ability to accommodate face covering wearing at all times. Thus, despite Plaintiff's argument to the contrary, the Blueprint (and other Executive Orders) did not "arbitrarily" categorize businesses. Instead, the Blueprint (and other Executive Orders) grouped different types of businesses and treated them by category rather than requiring the state to conduct an assessment of each and every individual business or property. Particularly when dealing with an emergency that calls for prompt action, it was not irrational for Defendants to take this approach. A state is not required to draw a perfect line in determining which individual businesses can safely open and which cannot. See Vance v. Bradley , 440 U.S. 93, 108–09, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (holding that under rational-basis review, classifications that are under- or over-inclusive do not create constitutional violations).

As the Blueprint noted, "eating and drinking requires removing masks," making restaurant dining a relatively risky activity. Furthermore, restaurants tend to host people from many different households, creating the risk that one sick person will spread the disease to multiple households. People also tend to spend an extended period of time at a restaurant while they enjoy their meals (versus the time people spend in retail businesses, where people tend to leave as soon as their purchases are complete). Distinguishing between outdoor and indoor dining (with greater restrictions on the latter) is also logical because ventilation and air flow is far superior outdoors, and capacity restrictions are reasonable in light of the Blueprint's goal to "limit the number of people per square foot." Indeed, courts that have considered COVID-related restrictions on restaurants in California and elsewhere have overwhelmingly concluded that there is a rational basis for those restrictions. See, e.g., County of Los Angeles Department of Public Health , 61 Cal. App. 5th 478, 275 Cal.Rptr.3d 752 ("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"); Midway Venture LLC v. Cty. of San Diego , 60 Cal. App. 5th 58, 274 Cal.Rptr.3d 383 (2021), as modified on denial of reh'g (Feb. 8, 2021) ("The evidence shows that restaurants and bars are high risk environments for COVID-19 transmission because, among other things, eating and drinking requires the removal of face coverings"); Disbar Corp. v. Newsom , 508 F.Supp.3d 747, 754 (E.D. Cal. 2020) ("Defendants provide evidence that restaurants, hair salons, and nail salons are at heightened risk for spreading COVID-19 due to the prolonged exposure to others in close proximity that occurs at those establishments"); Hopkins Hawley LLC v. Cuomo , 518 F.Supp.3d 705, 715–16 (S.D.N.Y. 2021) (concluding that the plaintiffs, including a restaurant owner and restaurant worker, were unlikely to succeed on the merits of their claim that New York's COVID-19 "Dining Policy" violated their First Amendment rights to freedom of assembly); Amato v. Elicker , 460 F. Supp. 3d 202, 223 (D. Conn. 2020) (holding that restaurant owner unlikely to succeed on the merits of First Amendment freedom of assembly claim).

Accordingly, the Court concludes that Plaintiff's first claim for relief for violation of the First Amendment freedom of assembly clause pursuant to 42 U.S.C. § 1983 must be dismissed, and because amendment is futile, that claim is dismissed without leave to amend. C. Plaintiff Second Claim for Relief for Violation of the Substantive Due Process Clause of the Fifth and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983 Must Be Dismissed.

1. Rational Basis Review Applies to Plaintiff's Substantive Due Process Claim.

In the second claim for relief, Plaintiff argues that the COVID-related restrictions placed on its restaurant by the Executive Orders violate Plaintiff's right to earn a living and operate a lawful business as protected by the substantive component of the Due Process Clause of Fifth and Fourteenth Amendment. "The substantive component of the Due Process Clause forbids the government from depriving a person of life, liberty, or property in such a way that ... interferes with rights implicit in the concept of ordered liberty." Engquist v. Oregon Dep't of Agric. , 478 F.3d 985, 996 (9th Cir. 2007) (quotation omitted).

The Supreme Court has held that the "Due Process Clause includes some generalized due process right to choose one's field of private employment." Conn v. Gabbert , 526 U.S. 286, 291–92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ; see also Ry. Employees’ Dep't v. Hanson , 351 U.S. 225, 234, 76 S.Ct. 714, 100 L.Ed. 1112 (1956) ("[T]he right to work, which the Court has frequently included in the concept of ‘liberty’ within the meaning of the Due Process Clauses may not be denied by the Congress") (citations omitted); Terrace v. Thompson , 263 U.S. 197, 215, 44 S.Ct. 15, 68 L.Ed. 255 (1923) (protecting the "right to earn a livelihood by following the ordinary occupations of life"). However, the Supreme Court has never held that the right to earn a living is a fundamental liberty interest that has been traditionally protected by the substantive component of the Due Process Clause. As the Ninth Circuit has explained, "[s]ubstantive due process has ... been largely confined to protecting fundamental liberty interests such as marriage, procreation, contraception, family relationships, child rearing, education and a person's bodily integrity, which are ‘deeply rooted in this Nation's history and tradition.’ " Franceschi v. Yee , 887 F.3d 927, 937 (9th Cir. 2018) (quoting Moore v. East Cleveland , 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ). Indeed, neither the Supreme Court nor the Ninth Circuit has ever "held that the right to pursue work is a fundamental right." Sagana v. Tenorio , 384 F.3d 731, 743 (9th Cir. 2004). In fact, the Ninth Circuit has specifically held that the right to pursue one's profession is not a fundamental right protected by the Due Process Clause. See Franceschi , 887 F.3d at 937. In addition, as the Ninth Circuit recently held, rational basis review applies to substantive due process claims by businesses challenging California's COVID-19 restrictions. See Tandon v. Newsom , 992 F.3d 916, 930 (9th Cir. 2021), disapproved in later proceedings on other grounds , ––– U.S. ––––, 141 S.Ct. 1294, 209 L.Ed.2d 355 (2021) ("We have ‘never held that the right to pursue work is a fundamental right,’ and, as such, the district court likely did not err in applying rational basis review to their due process claims") (quoting Sagana , 384 F.3d at 743 ).

2. The Restrictions Related to Restaurants in the Executive Orders Have a Rational Basis.

As explained above with respect to Plaintiff's First Amendment freedom of association claim, there is a rational basis for the restrictions placed on restaurants by the Executive Orders. As the Ninth Circuit very recently concluded when considering a plaintiff's objection on substantive due process grounds to COVID-19 restrictions placed on businesses by the State of Washington, the plaintiff's objection "amounts simply to a disagreement with the judgment of Defendants." Slidewaters , 4 F.4th at 759. The Ninth Circuit went on to explain that:

Slidewaters is confident, as it states in its opening brief, that it "could and can operate safely." But government regulation does not constitute a violation of constitutional substantive due process rights simply because the businesses or persons to whom the regulation is applied do not agree with the regulation or its application. Defendants provide a rational basis for the proclamations and related rules. The substantive due process rights of Slidewaters, its owners, and its employees are not violated by Defendants’ actions.

Id. Similarly, in this case, although Defendant disagrees with the Executive Orders, those orders easily survive rational basis review because they were enacted for a legitimate reason – preventing the spread of COVID-19 during a global pandemic and protecting Californians’ health and safety. See, e.g., MetroFlex Oceanside LLC v. Newsom , ––– F.Supp.3d ––––, 2021 WL 1251225 (S.D. Cal. Apr. 5, 2021) ("Further, the Court finds the challenged Orders easily survive rational basis review: the Orders were enacted for a legitimate reason – to curb the spread of COVID-19 - and are rationally related to curbing the spread because the Orders reduce the number of people mixing indoors, where the spread of COVID-19 occurs most readily ... Accordingly, Plaintiffs have not stated a substantive due process claim") (quoting Excel Fitness Fair Oaks, LLC v. Newsom, 2021 WL 795670 (E.D. Cal. Mar. 2, 2021)). This Court joins the overwhelming majority of courts to have consider similar claims and concludes that Plaintiff has failed to state a claim for violation of the Substantive Due Process Clause. See e.g., Culinary Studios, Inc. v. Newsom , 517 F.Supp.3d 1042 (E.D. Cal. 2021) (holding with respect to the plaintiffs’ substantive due process claim that "Plaintiffs have not met the threshold step of asserting a liberty or property interest protected by the U.S. Constitution has been violated"); Mission Fitness Ctr., LLC v. Newsom , 2021 WL 1856552 (C.D. Cal. May 10, 2021) (holding that the plaintiffs had failed to state a substantive due process claim because the "plaintiffs have not met their heavy burden of negating any possible legitimate reason for implementation of the [COVID-19] Orders"); Paradise Concepts, Inc. v. Wolf , 482 F. Supp. 3d 365, 371 (E.D. Pa. 2020) ("[W]e conclude that Plaintiffs’ claims concerning the right to operate a business are not actionable in a Substantive Due Process claim"); Peinhopf v. Guerrero , 2021 WL 2417150 (D. Guam June 14, 2021) ("The court finds that Defendants had a legitimate reason for issuing the Executive Orders and Guidance Memos; and that is, to safeguard public health and contain the virus's spread ... Similar to the court's finding in Herrin v. Reeves , this court finds that ‘the notion that restrictions designed to save human lives [from COVID-19] are "conscious shocking" to be absurd and not worthy of serious discussion’ ") (quoting Herrin v. Reeves , 2020 WL 5748090, at *9 (N.D. Miss. Sept. 25, 2020) ); Tandon , 517 F.Supp. 3d at 950 (collecting cases and concluding that "[e]very court to have addressed the issue of whether COVID-related restrictions violated substantive due process rights has concluded that the plaintiffs were not likely to succeed on the merits of their substantive due process claims"); see also Steel MMA, LLC v. Newsom , 2021 WL 778654, *5 (S.D. Cal. Mar. 1, 2021) (holding that the plaintiffs "have no likelihood of success on a substantive due process claim" because "[i]n light of the COVID-19 pandemic and the evidence of how the virus is transmitted, and notwithstanding Plaintiffs’ arguments about the efficacy or sensibility of requiring gyms to be closed while allowing other businesses to remain open, Defendants could have a legitimate reason for enacting restrictions on any indoor operation of gyms and fitness centers"); Kelley O'Neil’s Inc. v. Ige , 2021 WL 767851, *7-*8 (D. Haw. Feb. 26, 2021) ("In light of the controlling precedent, Plaintiffs’ claim for substantive due process violation fails because there are legitimate reasons the State and the City closed the bars and nightclubs").

Accordingly, the Court concludes that Plaintiff's second claim for relief for violation of the Substantive Due Process Clause of the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 must be dismissed, and because amendment is futile, that claim is dismissed without leave to amend.

D. Plaintiff Third Claim for Relief for Violation of the Equal Protection Clause of the Fourteenth Amendment Pursuant to 42 U.S.C. § 1983 Must Be Dismissed.

1. Plaintiff is Not a Member of a Suspect Class.

In the third claim for relief, Plaintiff alleges that the COVID-related restrictions placed on its restaurant by the Executive Orders violate Plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment because the classification of businesses as either "essential" or "non-essential" is arbitrary and irrational. "The Equal Protection Clause of the Fourteenth Amendment states that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe , 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ).

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe , 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ). The Supreme Court has "repeatedly held that ‘a classification neither involving fundamental rights nor proceeding along suspect lines ... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose.’ " Cent. State Univ. v. Am. Ass'n of Univ. Professors , 526 U.S. 124, 127-28, 119 S.Ct. 1162, 143 L.Ed.2d 227 (1999) (citations omitted). In this case, Plaintiff's claim does not involve a fundamental right, such as the free exercise of religion, speech, or the right to vote. In addition, the United States Supreme Court has held that business owners are not a suspect class. See Williamson v. Lee Optical , 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (concluding that a regulation on opticians would be subject to rational basis review). For this reason, other courts considering Equal Protection challenges to COVID-related restrictions brought by business owners have concluded that no suspect class is implicated and have applied rational basis review to equal protection challenges to those restrictions. See, e.g., Tandon , 517 F.Supp. 3d at 952 ("[O]ther courts considering Equal Protection challenges to COVID-related restrictions brought by business owners have concluded that no suspect class is implicated"); Six v. Newsom , 462 F. Supp. 3d 1060, 1072 (C.D. Cal. 2020) (concluding that "California's essential/non-essential [business] distinction does not disadvantage a suspect class"). The Court agrees with these well-reasoned decisions and will apply rational basis review in this case.

2. The Restrictions Related to Restaurants in the Executive Orders Have a Rational Basis.

Under rational basis review, "regulations must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Tandon , 517 F.Supp. 3d at 953. Thus, "courts must uphold the classification as long as it ‘find[s] some footing in the realities of the subject addressed by legislation.’ " Id. (quoting Heller v. Doe by Doe , 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) ). In light of the deferential nature of rational basis review, "every court considering Equal Protection challenges brought by business owners to COVID-related restrictions has upheld the restrictions." Id. , at 953 ; see also Steel MMA , 2021 WL 778654 (citing Tandon and concluding that the plaintiffs had no likelihood of success on their Equal Protection Clause claim). For the reasons discussed in detail above with respect to Plaintiff's First Amendment and Substantive Due Process claims, the Court again agrees with these well-reasoned decisions. "California has a compelling interest in reducing community spread of COVID-19" ( S. Bay United Pentecostal Church , 985 F.3d at 1142 ), and "it is rational to make distinctions among businesses based on the risks of COVID transmission attendant to each business." Steel MMA , 2021 WL 778654, at * 4 (denying motion for preliminary injunction brought by gym and fitness center owners challenging the COVID-related restrictions put in place by California and San Diego County); see also Roman Catholic Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) (holding that "stemming the spread of COVID-19 is unquestionably a compelling interest"). Although Plaintiff disagrees with the choices Defendants have made in restricting the operations of restaurants as compared with other businesses, "rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’ " Tandon , 517 F.Supp. 3d at 953 (quoting Heller , 509 U.S. at 319, 113 S.Ct. 2637 ); see also Peinhopf v. Guerrero , 2021 WL 2417150 (D. Guam June 14, 2021) (dismissing the plaintiff's equal protection claim because "Plaintiff has not alleged that a similar establishment such as his, a bar/tavern that serves exclusively alcoholic beverages, is considered ‘essential’ by Defendant" where the plaintiff alleged that Guam's classification of some businesses as "essential" and others, such as the plaintiff's bar, as "non-essential" was arbitrary and irrational, resulting in a violation of the Equal Protection Clause of the Fourteenth Amendment).

Accordingly, the Court concludes that Plaintiff's third claim for relief for violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 must be dismissed, and because amendment is futile, that claim is dismissed without leave to amend.

E. Plaintiff's Fourth Claim for Relief for Violation of the Procedural Due Process Clause of the Fifth and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983 Must Be Dismissed.

In the fourth claim for relief, Plaintiff alleges that the COVID-related restrictions placed on its restaurant by the Executive Orders violate Plaintiff's right to a hearing as protected by the procedural component of the Due Process Clause of Fifth and Fourteenth Amendment. "To obtain relief on a procedural due process claim, the plaintiff must establish the existence of (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process." Shanks v. Dressel , 540 F.3d 1082, 1090 (9th Cir. 2008) (brackets, citation, and quotation marks omitted).

"Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, the Supreme Court has recognized that "summary administrative action may be justified in emergency situations." Hodel v. Vir. Surface Mining & Reclamation Ass'n , 452 U.S. 264, 300, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (citations omitted). The Supreme Court has also recognized that "[p]rotection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is one of the oldest examples of permissible summary action." Id. (brackets, citations, and internal quotation marks omitted). The COVID-19 pandemic is unquestionably a public health emergency. See, e.g., Altman , 464 F.Supp. 3d 1106 ("Our state, our country, and the entire world are in the middle of an unparalleled public health emergency"). Therefore, the Executive Orders are precisely the types of government action permitted in response to such an emergency. Xponential Fitness v. Arizona , 2020 WL 3971908, at *5 (D. Ariz. July 14, 2020) ("[C]ourts have held that in the current COVID-19 crisis, temporary closures of a business do not implicate procedur[al] due process rights"); see also Excel Fitness , 2021 WL 795670, at *5 (dismissing procedural due process claims because "the challenged Orders are clearly decisions of general applicability that do not target individual" business owners and, therefore, "Plaintiffs were not entitled to individualized notice or the right to be heard"); Best Supplement Guide , 2020 WL 2615022, at *5 (finding no procedural due process violation related to COVID related gym operation restrictions).

In addition, the Due Process Clause does not prohibit every deprivation by a state of an individual's property. Halverson v. Skagit Cnty. , 42 F.3d 1257, 1260 (9th Cir. 1994), as amended on denial of reh'g (Feb. 9, 1995). Indeed, the Ninth Circuit has specifically rejected the notion that the Due Process Clause requires pre-deprivation process before enacting and enforcing laws of general applicability. Specifically, the Ninth Circuit has held that "governmental 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; general notice as provided by law is sufficient." Id. In this case, the Executive Orders affect large areas and are not directed at one or few individuals, and, therefore, do not give rise to the constitutional requirements of individual hearing and notice. See Peinhopf v. Guerrero , 2021 WL 2417150 (D. Guam June 14, 2021) (dismissing without leave to amend the plaintiff's procedural due process claim and holding that "[e]ven assuming Plaintiff has met the first element – asserting a constitutionally protected right, Plaintiff has not met the second element – a denial of adequate procedural protections. Plaintiff does not allege that the Executive Orders and Guidance Memos are directed at him alone or a few others (nor could he allege that)"); Culinary Studios , 517 F.Supp.3d at 1067–68 (dismissing without leave to amend the plaintiff's procedural due process claim and holding that "[b]ecause the Court concludes that Defendants’ challenged [COVID-related] actions are legislative in nature, Plaintiffs have not stated a valid procedural due process claim").

Accordingly, the Court concludes that Plaintiff's fourth claim for relief for violation of the Procedural Due Process Clause of the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 must be dismissed, and because amendment is futile, that claim is dismissed without leave to amend.

F. Plaintiff's Fifth Claim for Relief for Excessive Fines and Cruel and Unusual Punishment in Violation of the Eighth Amendment Pursuant to 42 U.S.C. § 1983 Must Be Dismissed.

In the fifth claim for relief, Plaintiff alleges that the COVID-related restrictions placed on its restaurant by the Executive Orders violate Plaintiff's rights under the Eighth Amendment to be free of excessive fines and cruel and unusual punishment. Plaintiff does not argue that Defendants have levied a monetary fine against it. Instead, Plaintiff argues that COVID-related capacity restrictions and temporary closures of restaurants are an "in-kind" fine.

The Excessive Fines Clause of the Eighth Amendment can apply in both criminal and civil cases. However, whether in the civil or criminal context, the fine must be the result of government punishment for a particular action. United States v. Bajakajian , 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) ("The Excessive Fines Clause thus limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense. Forfeitures – payments in kind – are thus ‘fines’ if they constitute punishment for an offense") (quotation and citation omitted); Austin v. United States , 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) ("The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment.... Thus, the question is not, as the United States would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment"). In this case, Plaintiff has not alleged – nor could it – that Defendants have brought any sort of enforcement or forfeiture action against it. As a result, Plaintiff has not suffered any "punishment" that would implicate the Excessive Fines Clause.

In addition, the Supreme Court has held that "[a]n examination of the history of the [Eighth] Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes." Ingraham v. Wright , 430 U.S. 651, 664, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (holding that the cruel and unusual punishment clause of the Eighth Amendment did not apply to disciplinary corporal punishment in a public school). Indeed, the Supreme Court concluded that:

The State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.

Id. at 671, n.40, 97 S.Ct. 1401. In this case, Plaintiff has not alleged – not could it – that Defendants have charged Plaintiff with a crime and that Plaintiff has been convicted of that crime. As a result, Plaintiff has not suffered the type of "punishment" that would implicate the cruel and unusual punishment clause of the Eighth Amendment. Accordingly, the Court concludes that Plaintiff's fifth claim for relief for Excessive Fines and Cruel and Unusual Punishment in Violation of the Eighth Amendment Pursuant to 42 U.S.C. § 1983 must be dismissed, and because amendment is futile, that claim is dismissed without leave to amend.

G. Plaintiff's Federal Claims Alleged in the SAC Are Dismissed Without Leave to Amend.

The Ninth Circuit has instructed that "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." See, e.g., Lopez v. Smith , 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc ) (quoting Doe v. United States , 58 F.3d 494, 497 (9th Cir. 1995) ). However, "[a] district court may dismiss a complaint without leave to amend if amendment would be futile." Airs Aromatics, LLC v. Victoria's Secret Stores Brand Mgmt., Inc. , 744 F.3d 595, 600 (9th Cir. 2014) (citation and quotation marks omitted); Gardner v. Martino , 563 F.3d 981 (9th Cir. 2009) (finding no abuse of discretion in denying leave to amend when amendment would be futile); Rutman Wine Co. v. E. & J. Gallo Winery , 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to amend is not an abuse of discretion where the pleadings before the court demonstrate that further amendment would be futile").

In this case, the face of the challenged Executive Orders, including the Blueprint, articulate a basis that is more than sufficient to satisfy rational basis review. Beach Commc'ns, Inc. , 508 U.S. at 315, 113 S.Ct. 2096 ("Rational speculation unsupported by evidence or empirical data" is sufficient to satisfy rational basis review); see also Angelotti Chiropractic, Inc. v. Baker , 791 F.3d 1075, 1087 (9th Cir. 2015). Because the Court has concluded based on the language of the Executive Orders that Plaintiff cannot state a claim for violation of the First Amendment freedom of assembly clause, the Due Process Clause of the Fifth and Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, or the Excessive Fines Clause and Cruel and Unusual Punishment Clause of the Eighth Amendment, any attempt to allege additional facts would be futile. Indeed, although Plaintiff requests leave to amend in its Opposition, Plaintiff fails to indicate what additional facts it could allege in order to state a viable federal claim against Defendants.

The Court concludes that this is an instance where it is unnecessary to prolong this litigation by providing Plaintiff an opportunity to amend that would only prove futile. See, e.g., Chaset v. Fleer/Skybox Int'l , 300 F.3d 1083, 1087-88 (9th Cir. 2002) ("The basic underlying facts have been alleged by plaintiffs and have been analyzed by the district court and us. We conclude that the plaintiffs cannot cure the basic flaw in their pleading. Because any amendment would be futile, there is no need to prolong the litigation by permitting further amendment"); Lipton v. Pathogenesis Corp. , 284 F.3d 1027, 1039 (9th Cir. 2002) ("Because any amendment would be futile, there was no need to prolong the litigation by permitting further amendment"); Klamath–Lake Pharmaceutical Ass'n v. Klamath Med. Serv. Bureau , 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that "futile amendments should not be permitted"). Accordingly, Plaintiff's federal claims alleged in the SAC are dismissed without leave to amend.

IV. Conclusion

For all the foregoing reasons, Defendants’ Motion is GRANTED . Plaintiff's federal claims alleged in the SAC are DISMISSED without leave to amend , and this action as to the federal claims is DISMISSED with prejudice . Plaintiff and Defendants are ordered to meet and confer and prepare a joint proposed Judgment which is consistent with this Order. The parties shall lodge the joint proposed Judgment with the Court on or before July 16, 2021. In the unlikely event that counsel are unable to agree upon a joint proposed Judgment, the parties shall each submit separate versions of a proposed Judgment, along with a declaration outlining their objections to the opposing party's version, no later than July 16, 2021.

IT IS SO ORDERED.