Hon. Cathy Ann Bencivengo United States District Judge

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION

[Doc. No. 6]

Plaintiffs are twenty-five gyms and fitness centers located in San Diego County. On December 23, 2020, they filed a complaint in San Diego County Superior Court seeking to enjoin enforcement of various State and County orders restricting indoor operation of their facilities to prevent the spread of the COVID-19 virus. On January 11, 2021, Defendants Governor Gavin Newsom and the California Department of Public Health removed the case to federal court based on federal question jurisdiction. 28 U.S.C. §§ 1331, 1441. On February 3, 2021, Plaintiffs filed an ex parte application for a temporary restraining order ("TRO") pending an order to show cause regarding the issuance of a preliminary injunction. [Doc. No. 6.] After considering the application, the Court found that the extraordinary remedy of a TRO was not justified, so the Court converted the ex parte application into a motion for a preliminary injunction, giving Defendants an opportunity to respond, Plaintiffs a deadline to reply, and setting a hearing date. [Doc. No. 8.] On February 25, 2021, the Court held a hearing on the motion for preliminary injunction with all counsel appearing via video-conference. At the conclusion of the hearing, the Court denied the motion for preliminary injunction.

I. Background

The parties, the Court, and indeed everyone is very familiar with the COVID-19 pandemic and the impact it has had on society. As a result of the pandemic, most or all state and local governments have enacted a variety of restrictions on public gatherings in an effort to prevent or limit the transmission of the virus. There are numerous court opinions detailing the ongoing COVID-19 pandemic and the various governmental orders restricting public gathering in an effort to prevent the transmission of the virus. The Court finds it unnecessary to restate these generally applicable facts here. Accordingly, the Court adopts the relevant portions of the summaries of the ongoing COVID-19 pandemic, and governmental restrictions arising therefrom, detailed in these other opinions, including in particular, South Bay United Pentecostal Church v. Newsom, 985 F.3d 1128, 1132-36 (9th Cir. 2021), and Tandon v. Newsom, ___ F. Supp. 3d ___, 2021 WL 411375, at **1-11 (N.D. Cal. Feb. 5, 2021). See also Watt Dec. [Doc. No. 12-1], and Rutherford Dec. [Doc. No. 12-2].

Here, Plaintiffs challenge the constitutionality of COVID-related restrictions put in place by the State of California and by the County of San Diego on the operation of gyms and fitness centers. With their opposition to the motion, Defendants offer declarations from James Watt, the Chief of the Division of Communicable Disease Control of the Center for Infectious Diseases at the California Department of Public Health, and George Rutherford, a Professor of Epidemiology, Preventive Medicine, Pediatrics, and History at the University of California, San Francisco School of Medicine, explaining risks of COVID transmission in indoor gyms and fitness centers. Watt Dec. ¶¶ 44-50 [Doc. No. 12-1 at 13-15]; Rutherford Dec. ¶¶ 98-108 [Doc. No. 12-2 at 29-33]. Currently, based on the State's "Blueprint for a Safer Economy" framework, San Diego County falls into Tier 1/Purple, where it has been since early November 2020. While the County remains in this tier, gyms and fitness centers like Plaintiffs are permitted to operate outdoors only, with certain precautions. Watt Dec. ¶ 92 [Doc. No. 12-1 at 27]; Rutherford Dec. ¶ 98 [Doc. No. 12-2 at 29]. As the COVID infection rate, along with other metrics set forth in the Blueprint, improves in San Diego, the County will be permitted to progress through less restrictive tiers (Tier 2/red, Tier 3/orange, and Tier 4/yellow). Watt Dec. at ¶¶ 77-81, 92 [Doc. No. 12-1 at 23-24, 27]. While Tier 1/purple allows for outdoor operations only, these less restrictive tiers allow for indoor operation of gyms at 10%, 25%, or 50% of capacity, respectively. Id. at ¶ 81 [Doc. No. 12-1 at 24]. Although it is not particularly clear from Plaintiffs' motion papers, at the hearing Plaintiffs clarified that they are asking for an order allowing them to operate at the same capacity they were operating at in October 2020, when San Diego County was in the Tier 2/red level.

II. Discussion

"A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." S. Bay United Pentecostal Church, 985 F.3d at 1139 (internal quotation marks and citation omitted) (emphasis in original). Generally, a plaintiff seeking a preliminary injunction must establish four things:

1. A likelihood of success on the merits,

2. That Plaintiff is likely to suffer irreparable harm in the absence of preliminary relief,

3. That the balance of equities tips in Plaintiff's favor, and

4. That an injunction is in the public interest.

A. Likelihood of Success on the Merits

The complaint asserts three claims under 42 U.S.C. § 1983: (1) violation of the free speech clause of the First Amendment; (2) violation of the equal protection clause of the Fourteenth Amendment; and (3) violation of Plaintiffs' Fifth and Fourteenth Amendment due process rights. As explained at the hearing, and for the reasons set forth below, Plaintiffs have no likelihood of success on any of these claims.

1. First Amendment Claim

The complaint alleges that "Plaintiffs operate gyms/fitness centers that provide resources to members of the public to maintain and improve their physical and mental health, as well as personal trainers to provide personal training services, through the expressive use of their persons. Such expression is protected by free speech rights and free expressive association." Complaint ¶ 52 [Doc. No. 1 at 26]. At the hearing, Plaintiffs' counsel argued that the First Amendment rights in question involved expression based on bodily movement and analogized the rights in question to those help applicable to dancers who perform in the nude. Plaintiffs' counsel conceded that no pure speech is implicated by Defendants' COVID-related restrictions on Plaintiffs' indoor operations and specified that Plaintiffs seek to protect their own First Amendment rights, as well as those of Plaintiffs' employees and customers.

In opposition to Plaintiffs' motion, Defendants argue that neither the operation of a gym, nor working out inside a gym, nor personal training that occurs indoors at a gym constitute expressive conduct or speech that implicates the First Amendment. As explained at the hearing, the Court agrees. Plaintiffs have failed to establish that the First Amendment protects their operation of gyms or that working out/exercising/personal training indoors in a gym is speech or expressive activity protected by the First Amendment. The court in Best Supplement Guide, LLC v. Newsom, No. 220CV00965JAMCKD, 2020 WL 2615022, at *4 (E.D. Cal. May 22, 2020), rejected similar arguments that COVID-related gym closures unlawfully infringe on freedom of speech, assembly or expressive association, holding:

The First Amendment's free speech clause only "affords protection to symbolic or expressive conduct [and] actual speech." Virginia v. Black, 538 U.S. 343, 358 (2003). As Defendants argue, the State and County gym closures plainly restrict non-expressive conduct: operating gyms. The Court lacks any authority for the proposition that operating a gym implicates the First Amendment's free speech protections. . . . see also United State v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech whenever the person engaging in the conduct intends thereby to express an idea."). Plaintiffs are therefore unlikely to succeed on the merits of this claim. They also fail to raise serious questions going to the claim's merits.

Nor are Plaintiffs likely to succeed on the merits of the freedom of assembly or freedom of association claims. Today, the freedom of association and freedom of assembly are largely viewed as one. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). Parties may only bring an expressive-association claim under the First Amendment if they demonstrate that they are asserting their 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." Id. Plaintiffs contend that "[w]hen Fitness System and Covell's staff and customers interact, they engage in expressive association and the advancement of shared beliefs." . . . They do not, however, cite any cases to support the idea that the freedom to associate is designed to protect this type of non-expressive, commercial interaction. Just like the freedom of speech, the rights conferred by the freedoms of assembly and association do not guard against the grievances Plaintiffs claim.

"Expressive conduct is characterized by two requirements: (1) 'an intent to convey a particularized message' and (2) a 'great' 'likelihood ... that the message would be understood by those who viewed it.'" Edge v. City of Everett, 929 F.3d 657, 668 (9th Cir. 2019) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). "Because the [Supreme] Court has eschewed a rule that all conduct is presumptively expressive, individuals claiming the protection of the First Amendment must carry the burden of demonstrating that their nonverbal conduct meets the applicable standard." Id.

Plaintiffs offer no evidence that gym patrons utilize Plaintiffs' facilities with the intent to convey any particularized message. Nor have they articulated what that message is or demonstrated any likelihood that those viewing that message would understand it. As Defendants note, unlike nude dancing establishments, which involve performers and audiences, "[g]enerally, people go to a gym to work out, not to watch a performance." [Doc. No. 12 at 17.] Thus, any expression that occurs indoors at Plaintiffs' gyms does not confer First Amendment coverage to defeat an otherwise valid public health order. The orders in question here regulate "neither speech nor an incidental, nonexpressive effect of speech." Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986) (O'Connor, J., concurring). Rather, they regulate indoor operation of gyms and fitness centers. Accordingly, because Defendants' restrictions on Plaintiffs' indoor operations do not impact any First Amendment speech or expressive conduct, Plaintiff has no likelihood of success on any claim for violation of the First Amendment.

2. Equal Protection Claim

At the hearing, Plaintiffs' counsel conceded that if the Court found, as it has, that no protected speech or expression is implicated by Defendants' COVID related restrictions, rational basis review applies to all of Plaintiffs' claims. Along these lines, the complaint argues that Defendants orders violate the equal protection clause of the Fourteenth Amendment because they lack a rational basis, and other courts have applied rational basis review to equal protection challenges to COVID-related restrictions. See generally Tandon v. Newsom, No. 20-CV-07108-LHK, 2021 WL 411375, at *20 (N.D. Cal. Feb. 5, 2021) (applying rational basis review to equal protection challenge of COVID-related restrictions, noting that "other courts considering Equal Protection challenges to COVID-related restrictions brought by business owners have concluded that no suspect class is implicated.").

Under rational basis review, "courts must uphold the classification as long as it 'find[s] some footing in the realities of the subject addressed by legislation.'" Id. at 20 (quoting Heller v. Doe by Doe, 509 U.S. 312, 321 (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 21. The Court finds no reason to depart from these cases, and Plaintiffs cite none to the contrary. "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. Plaintiffs may disagree with the choices Defendants have made with respect to restricting the operations of gyms as compared with other business, but "rational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.'" Tandon, 2021 WL 411375, at *20 (quoting Heller, 509 U.S. at 319). Accordingly, Plaintiffs have no likelihood of success on their Equal Protection claim.

3. Due Process Claim

The complaint and motion are vague as to what exact due process rights were purportedly violated here. Plaintiffs allege only that they "have a fundamental and Constitutionally protected interest in the use and enjoyment of their facilities." Complaint ¶ 54. Plaintiffs do not cite any authority for this proposition, and the Court is aware of none. Moreover, "[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." Tandon, 2021 WL 411375, at *17. Plaintiffs cite no cases to the contrary. "[C]ourts have [also] held that in the current COVID-19 crisis, temporary closures of a business do not implicate procedur[al] due process rights." Xponential Fitness v. Arizona, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, at *5 (D. Ariz. July 14, 2020) (finding that plaintiff gym did not have a likelihood of success on procedural due process claim based on COVID-related restrictions on operation); Best Supplement Guide, 2020 WL 2615022, at *5 (finding no procedural due process violation related to COVID related gym operation restrictions). The Court agrees with these cases.

The COVID-related restrictions being challenged here "are legislative in nature because they 'affect all citizens of California and at their most particular direct restrictions towards nationwide groups and classes of individuals and businesses.'" Culinary Studios, Inc. v. Newsom, No. 1:20-CV-1340 AWI EPG, 2021 WL 427115, at *16 (E.D. Cal. Feb. 8, 2021) (quoting PCG-SP Venture I LLC v. Newsom, No. EDCV201138JGBKKX, 2020 WL 4344631, at *8 (C.D. Cal. June 23, 2020)). When an "action complained of is legislative in nature, due process is satisfied when the [governmental] body performs its responsibilities in the normal manner prescribed by law.'" Samson v. City of Bainbridge Island, 683 F.3d 1051, 1060 (9th Cir. 2012) (quoting Halverson v. Skagit Cty., 42 F.3d 1257, 1260 (9th Cir. 1994)). Plaintiffs do not contend that Defendants do not have the legal right to enact any restrictions on the operations of businesses as a result of the COVID pandemic; they simply disagree with the substance of Defendants' restrictions as applied to Plaintiffs. Thus, Plaintiffs do not have a likelihood of success on a procedural due process claim.

Further, "[w]hen reviewing the substance of legislation or governmental action that does not impinge on fundamental rights, . . . [courts] do not require that the government's action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did." Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 66 (9th Cir. 1994). In 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. Indeed, Plaintiffs concede as much insofar as the only relief they seek is a restriction on indoor operation to 10% of capacity under Tier 2/red (as opposed to no indoor operations under Tier 1/purple). Accordingly, Plaintiffs have no likelihood of success on a substantive due process claim either.

B. Irreparable Harm and Balance of the Equities/Public Interest

Plaintiffs' failure to demonstrate a likelihood of success on the merits of any of their claims "is fatal to [their] request for [preliminary injunctive relief]," PCG-SP Venture I, 2020 WL 4344631, at *12, and "the court need not consider the other factors" required for a preliminary injunction. Disney Enterprises, 869 F.3d at 856. For completeness, however, the Court also finds that Plaintiffs establish neither irreparable harm nor that the balance of the equities and public interest favor an injunction.

The only irreparable harm Plaintiffs claim to have suffered relates to purported infringement of their First Amendment rights. Having found that Defendants' orders do not implicate any First Amendment rights, Plaintiffs fail to establish irreparable harm as required for a preliminary injunction.

Further, "[g]iven the unique risks of gatherings in spreading COVID-19; the deaths and serious illnesses that result from COVID-19; and the overwhelming strain on the healthcare system, the Court finds that enjoining the State's and County's restrictions on Plaintiffs' gatherings and on Plaintiffs' businesses would not be in the public interest." Tandon, at 2021 WL 411375, at *44. Rather, the public interest here lays with the continued protection of the population as a whole. See S. Bay United Pentecostal Church, 985 F.3d at 1149-50. Accordingly, this factor weighs against Plaintiffs as well.

III. Conclusion

For all of the foregoing reasons, as well as those stated at the hearing, Plaintiffs' motion is denied. Defendants shall respond to the complaint on or before March 11 , 2021 .

It is SO ORDERED. Dated: March 1, 2021

/s/_________

Hon. Cathy Ann Bencivengo

United States District Judge