Best Supp - Appellants' Opening Brief - Best Supplement

Case: 20-17362, 03/12/2021, ID: 12039383, DktEntry: 6, Page 1 of 67
No. 20-17362
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
BEST SUPPLEMENT GUIDE LLC and SEAN COVELL
Plaintiffs-Appellants,
v.
GAVIN NEWSOM, XAVIER BECERRA, SONIA Y. ANGELL,

COUNTY OF SAN JOAQUIN, CITY OF LODI, MAGGIE PARK
Defendants-Appellees.
On Appeal from the United States District Court

for the Eastern District of California
No. 2:20-cv-00965-JAM-CKD
Hon. John A. Mendez
APPELLANTS’ OPENING BRIEF

__________________________________________________________________
James M. Henderson, Sr. Brian Ricardo Chavez-Ochoa

James Henderson Law Office Katherine Domenico
3125 Burgaw Hwy Lot 3 Chavez-Ochoa Law Offices, Inc.
Jacksonville, NC 28540 4 Jean Street, Suite 4
910-381-0317 Valley Springs, CA 95252
Email: [email protected] 209-772-3013
Fax: 209- 772-3090
Email: [email protected]
Email: [email protected]
Counsel of Record
Attorneys for Appellants Best Supplement Guide LLC and Sean Covell
1
Rule 26.1 Statement
The Appellants are Best Supplement Guide LLC, a California corporation,
and Sean Covell. Best Supplement Guide LLC has no parent corporation and no
publicly held corporation owns 10% or more of its stocks.
2
TABLE OF CONTENTS
Page
Rule 26.1 Statement ................................................................................................. 2
TABLE OF AUTHORITIES ................................................................................... 6
INTRODUCTION ................................................................................................... 9
JURISDICTIONAL STATEMENT ..................................................................... 10
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ......................... 11
CONCISE STATEMENT OF THE CASE ........................................................... 12
Fact Relevant to the Issues Submitted for Review ...................................... 12
The Parties to the Appeal .................................................................. 12
Fitness Systems and the Role of Personal Trainers in

Health and Recovery ......................................................................... 13
Gyms and Fitness: Building Stronger and Healthier Communities .. 14
A Cascade of Declarations and orders Responding to COVID-19 ... 15
The Taking: Fitness System Compelled to Close ............................. 19
Counsel Correspond: Enforcement Threats Confirmed .................... 19
Homicide in Minneapolis Provokes Outrage Across Nation

and in California ................................................................................ 23
Defendants-Appellees Destroy Plaintiffs’-Appellants’

Business and Visit Wreck and Ruin on their Federal
Constitutional and Civil Rights ......................................................... 26
Uncertain Trumpets: Newsom to Allow Gyms to Open Park to Allow

Card Rooms and Gaming but not Gyms, Then Park Allows Gyms . 28
3
Page
Procedural History ....................................................................................... 30
Ruling Presented for Review ....................................................................... 32
SUMMARY OF ARGUMENT ............................................................................. 32
ARGUMENT ......................................................................................................... 34
Concise Statement of the Applicable Standard of Review.......................... 34
I. THE DISTRICT COURT APPLIED A HEIGHTENED PLEADING

STANDARD TO PLAINTIFFS’-APPELLANTS’ CIVIL RIGHTS
CLAIMS DIRECTLY DISOBEYING THE TEACHINGS OF THE
SUPREME COURT AND OF THIS COURT ................................. 35
II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED

THAT THE CLAIMS OF THE THIRD AMENDED
COMPLAINT FAILED TO STATE CLAIMS ON WHICH
RELIEF COULD BE GRANTED .................................................... 43
A. Count I: freedom of speech, freedom of assembly, and

freedom of expressive association ............................................... 43
B. Count II and IX: violations of the federal Takings Clause .......... 46
C. Count III: violations of the right to intrastate travel .................... 49
D. Count IV: violations of procedural and substantive due

process rights ................................................................................ 50
E. Count V and VIII: violations of the Equal Protection Clause

of the Fourteenth Amendment and the Equal Protection Clause
of the California Constitution ...................................................... 52
F. Count VI: violations of the Contract Clause of the

United States Constitution ........................................................... 56
4
Page
G. Count VII: violations of the Liberty Clause of the

California Constitution ................................................................. 58
CONCLUSION ...................................................................................................... 59
ADDENDUM OF CONSTITUTIONS, STATUTES, RULES............................. 61
PROOF OF SERVICE ........................................................................................... 66
5
TABLE OF AUTHORITIES
Page
Cases
Bell Atlantic Corporation v. Twombly (2007)
550 U.S. 544 ......................................................................................................35
Boddie v. Connecticut (1971)
401 U.S. 371 ......................................................................................................51
Crawford-El v. Britton (1998)
523 U.S. 574 ............................................................................................... 35, 41
Empress LLC v. City and County of San Francisco (9th Cir. 08/18/2005)
419 F.3d 1052 ....................................................................................................41
Energy Reserves Group, Inc. v. Kansas Power and Light Co. (1983)
459 U.S. 400 ......................................................................................................58
Ex parte Arta (1921)
52 Cal. App. 380 ................................................................................................59
First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles (1987)
482 U.S. 304 ......................................................................................................48
Galbraith v. County of Santa Clara (9th Cir. 2002)
307 F.3d 1119 ....................................................................................... 34, 41, 42
Grosjean v. American Press Co. (1936)
297 U.S. 233 ......................................................................................................55
Halverson v. Skagit Cnty. (9th Cir. 1994)
42 F.3d 1257 ......................................................................................................51
Hill v. McDonough (2006)
547 U. S. 573 .....................................................................................................40
In re White (1979)
97 Cal.App.3d 141 .............................................................................................59
Jacobson v. Massachusetts, (1905)
197 U.S. 11 ..................................................................................... 32, 33, 37, 42
Johnson v. City of Shelby, Mississippi (2014)
135 S.Ct. 346 ........................................................................................ 35, 36, 42
Jones v. Bock (2007)
549 U.S. 199 ............................................................................................... 35, 39
6
Page
Keyishian v. Board of Regents (1967)

385 U.S. 589 ......................................................................................................43
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
(1993)
507 U. S. 163 ........................................................................................ 39, 40, 41
Lee v. City of Los Angeles (9th Cir. 2001)
250 F.3d 668 ......................................................................................................42
Loos v. Immersion Corp. (9th Cir. 2014)
762 F.3d 880 ............................................................................................... 32, 34
Maduka v. Sunrise Hospital (9th Cir. 2004)
375 F.3d 909 ......................................................................................................41
Mathews v. Eldridge (1976)
424 U.S. 319 ............................................................................................... 50, 51
Memorial Hosp. v. Maricopa County (1974)
415 U.S. 250 ......................................................................................................49
Mendiondo v. Centinela Hospital Medical Center (9th Cir. 2008)
521 F.3d 1097 ....................................................................................................40
Miranda v. Clark County (9th Cir. 2003)
319 F.3d 465 ......................................................................................................42
Morgan v. United States
323 F.3d 776 ......................................................................................................41
Plessy v. Ferguson (1896)
163 U.S. 537 ......................................................................................................53
Porter v. Jones (9th Cir. 2003)
319 F.3d 483 ......................................................................................................41
Romer v. Evans (1996)
517 U.S. 620 ......................................................................................................53
Scheuer v. Rhodes (1974)
416 U. S. 232 .....................................................................................................36
South Bay United Pentecostal Church v. Newsom
Supreme Court Docket No. 20A136 .................................................................54
Southern California Gas Co. v. City of Santa Ana (9th Cir. 2003)
336 F.3d 885 ......................................................................................................57
Swierkiewicz v. Sorema N.A. (2002)
534 U.S. 506 ................................................................................... 35, 36, 39, 41
7
Page
Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency (2002)

535 U.S. 302 ............................................................................................... 47, 48
Tellabs, Inc. v. Makor Issues & Rights, Ltd. (2007)
551 U.S. 308 ............................................................................................... 35, 36
United States ex rel. Anita Silingo v. WellPoint, Inc. (9th Cir. 2018)
904 F.3d 667 ......................................................................................................34
Washington v. Glucksberg (1997)
521 U.S. 702 ......................................................................................................52
Winn v. Arizona Christian School Tuition Organization (9th Cir. 2009)
586 F.3d 649 ......................................................................................................42
Wong v. United States of American Immigration and Naturalization Service (9th
Cir. 2004)
373 F.3d 952 ......................................................................................................41
Zablocki v. Redhail (1978)
434 U.S. 374 ......................................................................................................56
Statutes
28 U.S.C. § 1331 ......................................................................................................11
28 U.S.C. §1291 .......................................................................................................11
42 U.S.C. § 1983 ......................................................................................... 11, 32, 57
Title 28 U.S.C. § 1343 .............................................................................................11
Title 28 U.S.C. §1367 ..............................................................................................11
Rules
Federal Rules of Civil Procedure, Rule 12(b)(6) ............................................. passim
Federal Rules of Civil Procedure, Rule 9 ................................................................33
Federal Rules of Civil Procedure, Rule 9(b)............................................................36
Federal Rules of Civil Procedure. Rule 8 ............................................... 9, 11, 33, 42
Constitutional Provisions
U.S. Const. 5th Amend. ...........................................................................................46
U.S. Const. Art I, § 10..............................................................................................56
Cal. Const. art. I, § 19 ..............................................................................................46
8
INTRODUCTION
This appeal lies squarely in the impact zone of a collision between the well-
established principle that Rule 8 of the Federal Rules of Civil Procedure (“Rule 8”)
only requires sufficiently stated facts to satisfy the requirement of “notice
pleading,” on one hand, and public policy decisions and actions that, in the absence
of the pandemic, could not survive judicial scrutiny. The pandemic alone prompted
this rogue application of an unauthorized standard of review, nothing more. It
certainly was not authorized by the Federal Rules of Civil Procedure.
Plaintiffs-Appellants own and operate a membership-based fitness center in
Lodi, California. The Defendants-Appellees are state and local government
officials and entities possessing and exercising governmental power, purportedly
for the benefit of public health, safety, and welfare. Plaintiffs-Appellants brought
nine causes of action against the Defendants, including claims arising under the
Constitution and laws of the United States and of the State of California. See
generally Plaintiffs’ Third Amended Complaint (“TAC”); ER-40, et seq.
Plaintiffs'-Appellants' federal causes of action sought redress for violations
of their federal civil and constitutional rights, including the right to freedom of
speech, freedom of assembly, and freedom of expressive association (Count I),
violations of the federal Takings Clause (Count Two), violations of the Due
Process and Privileges and Immunities Clauses of the Fourteenth Amendment
9
(Count Three), violation of the federal right to intrastate travel (Count Four),1
violations of the Equal Protection Clause of the Fourteenth Amendment (Count
Five), and violations of the Contracts Clause of the United States Constitution
(Count Six). Id.
Plaintiffs'-Appellants' California causes of action sought redress for
violations of Plaintiffs'-Appellants' rights under the Liberty Clause of the
California Constitution (Count Seven), violations of the Equal Protection Clause of
the California Constitution (Count Eight), and violations of the Takings Clause of
the California Constitution. Id.
On the Defendants’-Appellees’ motions to dismiss, the District Court,
applying a heretofore unauthorized, heightened pleading standard, granted the
motions to dismiss the TAC. See Minute Order Entry, ER-39; TOR (“TOR”), ER-
3-37.
JURISDICTIONAL STATEMENT
Plaintiffs-Appellants sued to vindicate federal civil rights, including
important and supremely precious First and Fourteenth Amendment rights.
Congress endowed the District Court with subject matter jurisdiction pursuant over
Plaintiffs’-Appellants’ federal civil rights claims pursuant to Title 28 U.S.C. §§
1
As the District Court’s oral ruling confirms, TOR, ER-28, Plaintifffs-Appellants
forthrightly acknowledged that a federal “right to intrastate travel” was one not
presently recognized by the Supreme Court or by this Court.
10
1331 and 1343, and pursuant to Title 42 U.S.C. § 1983. With respect to Plaintiffs’-
Appellants’ California civil rights claims, Congress endowed the District Court
with jurisdiction to decide those claims pursuant to Title 28 U.S.C. §1367.
This Court has jurisdiction under 28 U.S.C. §1291. On October 27, 2020, the
District Court entered an Order granting the Defendants’ motions to dismiss
without leave to amend and dismissing the entire action with prejudice. See Minute
Order Entry, ER-39.
Plaintiffs timely filed a Notice of Appeal on November 25, 2020, ER-113,
thereby invoking this Court’s jurisdiction. This appeal is from a final order that
disposed of all of Plaintiffs’ claims. TOR, ER-113.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Under de novo review, should this Court reverse the dismissal of the Third
Amended Complaint when – contrary to the binding decisions of this Court and the
United States Supreme Court – the District Court applied a heightened pleading
standard, not authorized by the notice pleading standard of F.R.Civ.P Rule 8 in its
decision granting the motions to dismiss below?
2. Under de novo review, should this Court reverse the dismissal of the Third
Amended Complaint, where the District Court plainly erred in its application of the
notice pleading standards of Rule 8 of the Federal Rules of Civil Procedure in
11
ruling on the motions to dismiss made pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure?
CONCISE STATEMENT OF THE CASE
Facts Relevant to the Issues Submitted for Review
The Parties to the Appeal
Plaintiff-Appellant Best Supplement Guide LLC, a California domestic
limited liability corporation, transacts business as Fitness System (“Fitness
System”). Plaintiff-Appellant Sean Covell (“Covell”) is a citizen of the United
States and a resident of Sacramento, California. Covell, who directs and manages
Fitness System as its president, organized and registered Fitness System with the
State of California in 2008. TAC ¶¶ 17-20, ER-44.
The Defendants-Appellees include public officials and municipal or county
governments. Gavin Newsom (“Newsom”) is the Governor of California. Xavier
Becerra (“Becerra”) is the Attorney General of California. Sonia Y. Angell, MD,
MPH (“Dr. Angell”) is the Director and State Public Health Officer (collectively
referred to herein as the “State Officials”). The County of San Joaquin (hereinafter
“County”) is a general law county organized and existing as a municipal
corporation under the laws of the State of California. Maggie Park, MD (“Park”) is
the Public Health Officer of San Joaquin County. The City of Lodi (“City”) is a
municipal corporation created by, and existing under, the laws of the State of
12
California and constitutes a “public entity” under the laws of the State of
California. TAC ¶¶ 21-35, ER-45-46.
Fitness Systems and the Role of Personal Trainers in Health and Recovery
Covell has never been diagnosed with the COVID-19 virus and has never
been subjected to a quarantine investigation by the Defendants-Appellees. Nor
have the Defendants-Appellees ever had probable cause to suspect or reasonable
suspicion to believe that the Plaintiffs-Appellants are infected with, have been
exposed to, or are contaminated with the novel coronavirus, or that they are under
COVID-19 infection, such that they could contaminate others if remedial action is
not taken. Nor have the Defendants-Appellees ever had any probable cause to
suspect or reasonable suspicion to believe that either Covell or Fitness System
present a serious and imminent risk to the health and safety of others if not
detained for isolation. TAC ¶¶ 36-39, ER-46-47.
Fitness System operates a membership-based gym in Lodi, California. To
conduct its business, Fitness System has negotiated contracts with individuals and
other businesses for the provision of their facilities and services. Among the goods
and services provided by Fitness System are personal trainer services, including
include the design of exercise programs, coaching of clients to healthier and more
active lifestyles, and the prevention of injury by ensuring appropriate exercise
technique and safety. TAC ¶¶ 43-44, ER-46-47.
13
Personal trainers also assist clients in following through with the exercise
regimen recommendations of their physical therapists. Fitness System offers
several personal trainer services directly related to physical therapy, including
body composition analysis, cardiovascular output analysis, muscular strength
analysis, rehabilitation, and mobility work. To that end, Fitness System provides
various pieces of equipment and machines also found in the offices of physical
therapists. Fitness System clients rely on the services of the gym and of its personal
trainers to comply with doctors’ orders for training, rehabilitation, and recovery.
TAC ¶¶ 44-47, ER-47-48.)
Fitness System provides a climate controlled environment because many of
its clients that suffer from poorer health find that outdoor environmental conditions
make it more difficult to safely accomplish their necessary exercise and
rehabilitative activities and require the ability to train in a climate-controlled
environment. Fitness System’s clients include individuals who have been working
hard to reduce obesity, to manage or eliminate diabetes, to work muscular systems
stricken by muscular sclerosis, to recover from severe injuries to shoulders and
other muscle systems, and to manage high blood pressure. TAC ¶¶ 48-49, ER-48.
Gyms and Fitness Facilities: Building Stronger and Healthier Communities
Fitness facilities serve an important role in individual lives, but also for the
community as a whole, providing a common place where the goal for everyone is
14
the same—to learn the body through physical exercise and improve one’s health.
There, health-oriented individuals gather and exchange knowledge, ideas, and
stories, and freely engage with other people from a diverse group of economic,
social classes and backgrounds. TAC ¶¶ 52-59, ER-49.
When he was 19, doctors diagnosed Covell with ankylosing spondylitis, a
reactive-arthritis condition in his spine. Facing a future with pain and physical
limitation had a severely negative impact on his identity as a young man. Working
out at a gym helped Covell to realize a much different future, one without the pain
and physical limitations that had seemed inevitable. TAC ¶¶ 60-62, ER-49-50.
A Cascade of Declarations and Orders Responding to COVID-19
In December 2019, a virus known as SARS-CoV-2 (“the virus”) became
evident in Wuhan, China, causing outbreaks of the coronavirus disease COVID-19
to spread globally. On January 31, 2020, Alex Azar, as Secretary of Health and
Human Services, declared a public health emergency in response to COVID-19.
TAC ¶¶ 100-101, ER-56.
Newsom issued a State of Emergency order on March 4, 2020 in response to
the threat of the spread of COVID-19 throughout California’s communities. Then
Park issued a “Declaration of Local Health Emergency” in light of the developing
outbreak of the novel coronavirus disease (“COVID-19”). On March 13, 2020,
15
President Donald J. Trump proclaimed a National State of Emergency in response
to the early emergence of COVID-19. TAC ¶¶ 102-105, ER-56.
Thereafter, in a cascading series of ham-fisted, ultra vires acts, Newsom,
Angell, and Parks stripped Fitness System and Covell of their right to engage in
their lawful trade and occupation, and to operate their lawful business. They
violated the federal civil rights of the Plaintiffs-Appellants, and took Plaintiffs’
business enterprises without providing just compensation, all while destroying the
business good will that Fitness System had established through their relations with
patrons of their business. TAC ¶¶ 106, ER-56-57.
On March 19, 2020, Newsom issued Executive Order N-33-20 (“Executive
Order”), ordering “all individuals living in the State of California” to “stay home
or at their place of residence except as needed to maintain continuity of operations
of the federal critical infrastructure sectors. Newsom ordered Californians working
in “these 16 critical infrastructure sectors [to] continue their work because of the
importance of these sectors to Californians’ health and well-being.” Newsom
declared, “this Order is being issued to protect the public health of Californians”
and that “our goal is simple, we want to bend the curve, and disrupt the spread of
the virus.” Newsom directed the Office of Emergency Services to “take all
necessary steps to ensure compliance with this Order” and that the “Order shall be
16
enforceable pursuant to California law, including, but not limited to, Government
Code section 86654.” TAC ¶¶ 107-112, ER-57-58.
On March 20, 2020, Park and the County issued the first in a series of
Orders captioned, “Order of the San Joaquin County Public Health Office and
Director of Emergency Services of the County of San Joaquin.” The March 20,
2020, Order (“March 20 Order”) was repealed and replaced with a subsequent
Order dated March 21, 2020 (“March 21 Order”). The March 21 Order was
repealed and replaced by an Order dated March 26, 2020 (“March 26 Order”). The
March 26 Order was repealed and replaced by an Order dated April 14, 2020
(“April 14 Order”). The April 14 Order was amended by an Order dated April 24,
2020 (“April 24 Order”). TAC ¶¶ 113-117, ER-58.
In most respects similar or identical to its predecessors, the April 14 Order
states that it became effective “at 11:59 pm on April 14, 2020 and will continue to
be in effect until it is rescinded in writing by the Health Officer.” The April 14
Order claimed to implement Newsom’s Executive Order N-33-20. Paragraph 3
commands “All individuals currently living within the County of San Joaquin … to
stay at home or place of residence” and warns that “[a]ll persons may leave their
residences only for Essential Activities ….” Paragraph 5 commands “All
businesses with a facility or jobsite in the County, except Essential Businesses, …
to cease all activities at facilities located with the County except as needed to
17
perform Minimum Basic Operations….” While allowing “Essential Businesses” to
continue operation in order to provide essential goods and services, the April 14
Order also allows “Essential Businesses” to remain “open to the public and stock
the portions of their retail storefronts dedicated to non-essential products.”
Paragraph 6 commands the closure of, among other establishments, gyms.
Paragraph 7 prohibits all travel “except for Essential Travel” as defined in the
Order, explicitly prohibiting all travel into or out of San Joaquin County except “to
perform Essential Activities.” Paragraph 15 requests that the City “ensure
compliance with and enforce this Order.” TAC ¶¶ 118-127, ER-58-59.
Park and County issued an additional guidance on the subject of the use of
face coverings in public, in light of the CDC’s recommendation that such
coverings or masks be used in public when social distancing measures are difficult
to maintain. In their April 11, 2020, guidance, Park and County warned residents,
“San Joaquin County residents remain under a Stay at Home Order and people
should NOT feel that they can go outside more because they are wearing a face
covering.” TAC ¶¶ 128-129, ER-60.
On May 8, 2020, Park and San Joaquin County issued an additional Order
(“May 8 Order”). The May 8 Order repealed and replaced the April 14 Order,
although in all significant respects the terms of the two orders are identical. Under
the terms of the May 8 Order, Fitness System and Covell continued to be
18
absolutely prohibited from re-opening the Fitness System gym in Lodi, California.
TAC ¶¶ 134-137, ER-61.
The Taking: Fitness System Compelled to Close
Defendants-Appellees compelled Fitness System to close its facilities to its
members. Subsequently, Fitness System and Covell have been repeatedly visited
with “body blows” in the form of continued orders to close. As a direct result,
Fitness System’s and Covell’s financial harms mount with each additional day of
compulsory closure. In summer 2020, Fitness System estimated that its then-
current business losses amounted to approximately a million dollars
($1,000,000.00). TAC ¶¶ 139-140, ER-61.
Counsel Correspond: Enforcement Threats Confirmed
In late April, 2020, Fitness System announced their intention to reopen their
facilities on May 1, 2020. Simultaneously, Fitness System and Covell reaffirmed
their commitment reopen in full compliance with CDC guidance on social
distancing, the use of coverings for the mouth and nose, and frequent sanitation of
the machines, equipment, and facilities of their business. Covell discussed the
planned reopening in media interviews. The County learned of the plan to reopen
and, on April 30, 2020, the City directed City of Lodi Police Department officers
to the Fitness System’s Lodi location. TAC ¶¶ 143-146, ER-62.
19
Evidencing the joint nature of Defendants’ enforcement threats and
activities, the City of Lodi police officers brought with them and delivered to
Fitness System employees a letter from San Joaquin County counsel, J. Mark
Myles. The Lodi police officers told Fitness System employees that they had come
to “educate” them and that, if Fitness System opened the Lodi facility,
consequences would follow, including fines and arrest. In the letter from County’s
counsel, Myles advised that reopening of Lodi facilities would be “a violation of
the County Public Health Officer’s order of April 14, 2020.” Myles further warned,
“Any person who refuses or willfully neglects to comply with this emergency
order is guilty of a misdemeanor, punishable by fine and/or imprisonment.”
Finally, in his letter, Myles warned that “there are civil and administrative
penalties that can be imposed upon you as a result of continued operation” and that
“The County of San Joaquin is prepared to pursue all available civil and criminal
sanctions should you open your facility to the public.” Myles copied his letter to
the City Attorney for the City of Lodi. County Counsel’s letter constituted a final
decision of the County, Parks, and the City on the application of the Orders
complained of herein. TAC ¶¶ 147-155, ER-62-63.
Fitness System and Covell would not have closed their business. In fact,
they currently desire and plan to reopen their business, and, have specifically
planned to reopen their business. In San Joaquin County, and California generally,
20
gyms have been closed for months; parks are marked off with caution tape;
basketball hoops have been removed from public courts. While urgently pursuing
solutions for the coronavirus and its associated diseases, public health officials
have ignored the increase in anger, violence, and destruction in our communities
and that increase’s connection to the very solutions they have imposed on society.
TAC ¶¶ 51, 64, ER-48, -50.
Fitness System has received many messages from clients recounting their
mental stress, some with severe depression, and explaining that the gym is the only
outlet they have for stress-relief and mental health. Exercise is an effective form of
relief from depression and anxiety; the CDC recommends 150 minutes of
“vigorous” exercise weekly as essential for health. TAC ¶¶ 66-69, ER-50-51.
COVID-19 has been particularly damaging and deadly in people with co-
morbidities that are metabolic disorders and that can be managed better and more
effectively with a regular regime of exercise. The Challenged Orders exacerbated
these issues by making regular recourse to fitness facilities, fitness classes, and
fitness advisers virtually impossible to Californians. The damage of this lockdown
to the public and to the fitness industry has been devastating and destructive. TAC
¶¶ 70-72, ER-51.
The panoply of onerous restrictions the Defendants-Appellees have imposed
on fitness facilities has had, and will continue to have, the effect of destroying
21
public demand for this Plaintiffs’-Appellants’ business and services. TAC ¶¶ 74-
75, ER-52.
The harm inflicted by the Defendants-Appellees is considerable. Given that
Fitness System has made minimal income since the issuance of the stay at home
and closure orders and that its current losses (estimated to be over $1 million) due
to the forced shutdown, further restrictions make it increasingly difficult for
Fitness System to survive. TAC ¶¶ 74-79, ER-52-53.
Fitness System has already incurred increased costs for payroll to comply
with the CDC’s social distancing and sanitization requirements. Fitness System is
required to pay rent for its entire facility space; increased social distancing reduces
the number of members that Fitness System can serve and, of course, results in less
revenue, while simultaneously increasing payroll costs in order to comply with
new regulations. Social distancing itself reduces class size when participants move
in a greater area of space (yoga, kickboxing, cross training, etc.). Some members
only joined Fitness System because of the group fitness classes, in which they
enjoy both the variety and the social aspect of the classes. TAC ¶¶ 84-87, ER-53-
54.
Fitness System’s Lodi location had never before imposed an appointment
requirement on its members for access to the gym facilities. Imposing such a
system greatly inconveniences clients who have already been denied access to the
22
gym for so long. Fitness System clients often need unscheduled access to the gym
to work out at a spur of the moment to improve their mood. TAC ¶¶ 90-91, ER-54-
55.
Requiring Fitness System to obtain necessary equipment, supplies, and
personnel to conduct temperature screenings of staff and clients further eats out the
gym’s substance and not necessarily for good reason. For example, the temperature
screening requirement threatens not to be a sound screening approach. TAC ¶¶ 92-
95, ER-54-55.
Homicide in Minneapolis Provokes Outrage Across Nation and in California
In May 2020, an African-American citizen died while in Minneapolis police
custody when one officer compressed his neck and chest with a choke hold
effected by placing a knee on his neck, causing asphyxiation. Horrified, citizens
across America took to the streets, expressing outrage at the complete disregard for
the victim’s life. Shortly thereafter, Angell modified the terms of the State’s Stay at
Home Order in a solicitous accommodation of free speech rights being exercised in
the protests. Angell amended the Stay at Home Order as follows:
On May 25, 2020, in an effort to balance First Amendment interests

with public health, the State Public Health Officer created an
exception to the prohibition against mass gatherings for faith-based
services and cultural ceremonies as well as protests. Those types of
gatherings are permitted so long as they do not exceed 100 attendees
or 25% of the capacity of the space in which the gathering is held,
whichever is lower. All other mass gatherings are prohibited until
further notice.
23
TAC ¶¶ 184-188, ER-68-69.
On June 1, 2020, Newsom addressed the Minneapolis killing, the societal
causes of that killing and of the outrage of a Nation at the homicide, and related
topics. Newsom endorsed public demonstrations and protests to decry the killing
and to expose the institutional causes of it. Newsom’s public statements included:
"For those of you out there protesting, I want you to know that you
matter. I care, we care."
"I want you to know that I have a unique responsibility to prove that
to you. You've lost patience and so have I. You are right to feel
wronged. You are right to feel the way that you are feeling. We have a
responsibility to do better and be better."
"We hear you and we have a responsibility now to prove to you, not
just to assert that we are capable of being better and doing more as a
society."
"And those that want to express themselves, and have, Thank you.
God bless you. Keep doing it. Your rage is real, express it, so that we
can hear it. Let's not let others drown that rage, and those that want to
express that rage in a responsible and thoughtful way."
"To those of you who’ve said, I can't stand on the periphery any
longer, I need to be part of this effort, thank you."
Newsom did not couch his terms. He did not warn that demonstrations, protests,
and prayer vigils were unlawful under State or local Stay at Home Orders, nor did
he even intimate that the State would enforce Stay at Home Orders in response to
the demonstrations, protests, or prayer vigils. TAC ¶¶ 192-197, ER-70-72.
24
On June 1, 2020, Park released a video message addressing the then-ongoing
demonstrations, prayer vigils, and protests that arose out of the Minneapolis
killing. Park did not state, warn, or advise that residents of San Joaquin County
were required to remain at home except for permissible purposes identified in
previously issued local or statewide orders. The essence of Park’s message was:
…I want to acknowledge the pain and frustration being felt by our

communities of color. As we find peaceful ways to express ourselves
and speak out, please remember that the COVID-19 pandemic still
poses a threat to our community’s most vulnerable members. I am
especially concerned about the continued disproportionate impacts of
COVID-19 on people of color in our community. We need everyone’s
help to prevent more COVID-19 infections, hospitalizations, and
deaths and urge you to follow public health guidelines and
recommendations during protests.
… If you plan to attend a protest in person, observe the following

safety guidelines: Maintain 6 feet of physical distance at all times
between people from different households; Even with physical
distancing, gathering at protests carries a higher risk of widespread
transmission of COVID-19. In particular, activities like chanting,
shouting, and singing, can easily spread the virus. For this reason,
people engaging in protests should wear face coverings at all times.
Bring hand sanitizer; Wash or sanitize hands after touching surfaces.
Do not shake hands, hug, high-five or otherwise touch people who do
not live in your household. Say hello to friends from a distance and
connect virtually after the event. Do not conduct long, face-to-face
conversations with other protesters. After the event, monitor yourself
for symptoms of COVID-19 illness, get tested if you become ill and
consider getting tested in a couple of weeks, even if you don't develop
symptoms.
… Please help our community stay open by taking these guidelines

seriously. For more information on how to stay safe and information
on free COVID-19 testing sites, please visit: www.sjcphs.org.”
25
San Joaquin County publicized Park’s guidance for public protests. TAC ¶¶ 198-
203, ER-72-73.
Subsequent to the foregoing remarks, California witnessed widespread
demonstrations, protests, and prayer vigils, as well as looting and rioting. These
activities were neither limited in number to 100 persons nor isolated in a few
locations around the State; the TAC adequately demonstrated that the Defendants-
Appellees refrained from imposing overarching, pandemic-oriented restrictions on
public gatherings and protests; the TAC adequately alleges that Newsom, Angell,
and Park actively encouraged such public protests despite the ongoing pandemic.
TAC ¶¶ 204-205, ER-74-76.
Defendants-Appellees Destroy Plaintiffs’-Appellants’ Business and Visit Wreck

and Ruin on their Federal Constitutional and Civil Rights
The Defendants-Appellees have caused catastrophic damage to Fitness
System’s and Covell’s business and interests by the compulsory closure of the
Lodi fitness facility simply because certain government officials have decided that
the business is “Non-Essential.” The forced closure of the facility disastrously
impacted Fitness System’s and Covell’s financial obligations, and deprived them
of all economically feasible uses of their property. Prior to the issuance of the
Orders, Fitness System had approximately 5900 active accounts covering all three
of its gym locations. Although compelled to close the gym, Plaintiffs-Appellants
have retained their employees, putting them to various tasks, including painting,
26
sterilizing equipment, teaching online classes without charge via the Zoom
teleconferencing application. Although compelled to close their gym, necessary
maintenance services have still been required to be performed to maintain the
gym's physical plant and facilities including pest control, HVAC services, and
related physical plant maintenance and repair. Fitness System has not billed or
charged clients since mid-March 2020 and the gym has produced no income. TAC
¶¶ 156-164, ER-64-65.
The government Defendants-Appellees have fulfilled their constitutional
obligation to compensate Fitness System and Covell for the taking of their
property, not to mention “just” compensation, for the regulatory deprivation of
their property. “Essential” businesses continue to operate during the period of the
April 14 Order and its predecessors. Fitness System’s “Non-Essential” business is
being destroyed by government overreach in the form of unconstitutional. Because
others deemed their business “Non-Essential,” Fitness System and Covell were
compelled, under threat of citation, prosecution, fine, imprisonment, and loss of
business licensing, to close their doors. The Orders constituted a regulatory
“partial” or “complete” taking, which, absent just compensation, violates the
Takings Clause. The Orders were not “narrowly tailored” to further any
compelling governmental interest, evidenced by the Swiss cheese of exceptions
throughout the Orders. The Orders and the enforcement actions threatened are the
27
product of a policy or custom of the Defendants-Appellees, which policy or custom
caused the constitutional violation alleged herein, and were taken under color of
state law. TAC ¶¶ 166-171, ER-65-66.
Uncertain Trumpets: Newsom to Allow Gyms to Open, Park to Allow Card Rooms
and Gaming but not Gyms, Then Park Allows Gyms
On May 27, 2020, Newsom participated in a “roundtable discussion” with
representatives of the fitness industry, to discuss about reopening the fitness
industry amid the COVID-19 pandemic. The roundtable was widely reported by
news media. Newsom advised that California was preparing guidance for re-
opening of fitness facilities within the State’s Resilience Roadmap. On June 5,
2020, Newsom announced the re-opening of several business sectors in California
that had been shuttered under the Challenged Orders, including fitness facilities.
Newsom also released guidance for counties to guide them in reopening a broad
range of other businesses including hotels, casinos, museums, zoos and aquariums,
along with guidelines for resuming music, film and television production. TAC ¶¶
206-211, ER-76-77.
On June 5, 2020, the California Department of Public Health published a
press release in which Angell stated,
As we continue to release guidance on how different sections can

reopen with modifications, it is important to remember guidance
doesn’t mean ‘go.’ Your local health officer will make the final
decision about which sectors will open, guided by data specific to
your community.
28
That news release explained the effect of Angell’s announcement, “It is up to the
local jurisdiction to make decisions regarding reopening specific sectors based
upon the epidemiology and readiness of the county.” TAC ¶¶ 214-215, ER-78.
Park submitted just such an attestation. Park’s submission of the attestation
for San Joaquin County was the necessary precondition under which Park and the
County could authorize the reopening of closed economic sectors, including fitness
facilities among others. Park subsequently concluded that it would not be safe and
reasonable to reopen fitness facilities beginning on June 12, 2020. Moreover, Park
and the County have not identified or offered any rational basis for the reopening
of card rooms in San Joaquin County while keeping fitness facilities closed; nor
have they rationalized keeping Fitness System shuttered while card rooms are free
to resume operations. TAC ¶¶ 216-237, ER-79-83.
On June 18, 2020, Newsom announced that public health officials would
now “require” all Californians to wear face coverings in public. Pursuant to the
CDC guidance, “People in California must wear face coverings” in a broad variety
of common circumstances of daily life. TAC ¶¶ 240-245, ER-84-86.
Finally, on July 13, 2020, Angell issued a Statement and a new Order, the
effect of which wass, once again, to force the complete closure of Fitness System’s
and Covell’s Lodi gym. In the July 13, 2020, Order, Angell included an “Order for
Closure of Additional Sectors for Counties on Monitoring List.” The Monitoring

29
List gathers those counties that are experiencing increasing numbers of COVID-19
infections, related hospitalizations, and the like. Angell included San Joaquin
County on the Monitoring List. In the July 13 Order, Angell ordered closure of “all
indoor operations” of “Gyms and Fitness Centers,” “Places of Worship,”
“Protests,” “Offices for Non-Critical Infrastructure Sectors,” “Personal Care
Services (including nail salons, massage parlors, and tattoo parlors),” “Hair salons
and barbershops,” and “Malls.” Thereafter, Park issued an updated Order,
“ORDER OF THE SAN JOAQUIN COUNTY PUBLIC HEALTH OFFICER
IMPLEMENTING THE DIRECTIVES OF THE GOVERNOR OF CALIFORNIA
AND THE CALIFORNIA STATE PUBLIC HEALTH OFFICER. Park’s July 13
Order compels the complete discontinuation of indoor operations for numerous
sectors of the economy, including “Fitness Centers,” “Worship Services,”
“Protests,” “Offices for Non-essential sectors,” “Personal Care Services, like nail
salons, body waxing and tattoo parlors,” “Hair Salons and barbershops,” and
“Indoor malls.” TAC ¶¶ 245-255, ER-86-88.
Procedural History
On May 12, 2020, Fitness System and Covell filed their Complaint against
the Defendants, along with a motion and supporting papers seeking a temporary
restraining order. Docket Entry 1, ER-123. On May 22, 2020, following briefing,
District Judge Mendez denied the TRO application and also a requested order to
30
show cause why a preliminary injunction should not issue. Docket Entry 19, ER-
124.
Fitness System and Covell amended their complaint due to the volatile and
shifting nature of the challenged government actions. They filed their First
Amended Complaint on June 3, 2020. Docket Entry 22, ER-124. Thereafter, by
agreement, responding to further actions by Defendants-Appellees, Fitness System
amended its complaint twice more, filing their Second Amended Complaint on
July 5, 2020, Docket Entry 27, ER-124, and their Third Amended Complaint on
July 29, 2020. Docket Entry 32, ER-125.
Two motions to dismiss were lodged with the District Court. The State
parties – Newsom, Becerra, and Angell – filed one motion; the Local parties – the
County, the City, and Park – filed the other one. After briefing, the District Court
set the matter for hearing, which took place on October 27, 2020. At the hearing’s
conclusion, Judge Mendez ruled orally, granting the motions to dismiss, dismissing
the Third Amended Complaint with prejudice. Subsequently, the oral ruling
resulted in issuance of a final judgment disposing of all the claims in the Third
Amended Complaint. Text of Minute Order, Docket Entry 43, ER-126.
31
Ruling Presented for Review
The District Court rendered its decision orally at the conclusion of the
hearing on the motions to dismiss. TOR, ER-3, et seq. The judgment embodies the
oral ruling. Judgment, ER-38.
Eschewing that he was applying a pleading standard higher than required by
Rule 8, the District Court concluded that, in light of Jacobson v. Massachusetts,
197 U.S. 11 (1905), the Third Amended Complaint failed to state a cause of action.
See generally TOR, ER-3, et seq. Recognizing, the treacherous ground on which
he had been invited to tread by the Defendants’-Appellees’ assertion of a
Jacobson-compelled heightened pleading standard, Judge Mendez offered, as an
alternative basis for the requested relief, that Plaintiffs-Appellants had failed to
state a claim upon which relief could be granted. Id. Finally, the District Court
separately held that Plaintiffs-Appellants had failed sufficiently to plead policy or
custom bases on which to give rise to Monell-style municipal liability under Title
42 U.S.C. § 1983. TOR 12, ER-14.
SUMMARY OF ARGUMENT
This appeal arises on an order dismissing the Third Amended Complaint
granted pursuant to F.R.Civ.P. Rule 12(b)(6). This Court reviews de novo orders
granting motions to dismiss for failure to state a claim. See Loos v. Immersion
Corp., 762 F.3d 880, 886 (9th Cir. 2014)
32
Two principal points demonstrate that the District Court erred in granting the
dismissal below.
First, despite declamations that it was not doing so, the District Court
innovated a heightened standard by which to review the sufficiency of pleadings
under Rule 8 of the Federal Rules of Civil Procedure. The District Court derived
that heightened standard from its extrapolations on the decision in Jacobson v.
Massachusetts, 197 U.S. 11 (1905). Indeed, the District Court went so far as
adumbrating the elements of a Jacobson claim. In doing so, the District Court
badly veered from the path set by the Federal Rules and disregarded the teaching
of the Supreme Court and this Court regarding the imposition of heightened
standards of pleadings in cases not governed by the special pleading rules for fraud
and mistake imposed by Rule 9 of the Federal Rules of Civil Procedure. This error
fundamentally flaws the decision below.
Second, after having applied that heightened scrutiny and determining that
the TAC failed to state a claim on which relief could be granted, the District Court
then reviewed each of the individual claims of the TAC and found that none of
them survived scrutiny, even under the more relaxed standard typical to Rule 8.
The District Court could only reach that conclusion because of another
fundamental error in understanding that the communicative and associative
33
activities of Fitness System and Covell are, in fact, the exercise of fundamental
rights. This error, too, is a fundamental flaw in the decision below.
ARGUMENT
Concise Statement of the Applicable Standard of Review
Plaintiffs-Appellants appeal from the decision and judgment of the District
Court, which granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the motions to dismiss. This Court reviews the grant of a 12(b)(6)
motion to dismiss de novo. United States ex rel. Anita Silingo v. WellPoint, Inc.,
904 F.3d 667, 676 (9th Cir. 2018) (de novo review governs the dismissal of a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6); Loos v. Immersion Corp.,
762 F.3d 880, 886 (9th Cir. 2014) (same).
Further, the District Court arrived at its conclusion to dismiss the Third
Amended Complaint on a basis not authorized by the Federal Rules of Civil
Procedure, applying a heightened pleading standard in dismissing the Third
Amended Complaint. That decision, too, is subject to de novo review in this Court,
and based on the authorities cited in the argument below, warrants this Court’s
close examination for adventuring outside the bounds of Rule 8 of the Federal
Rules of Civil Procedure. Cf. Galbraith v. Cty. of Santa Clara, 307 F.3d 1119,
1125 (9th Cir. 2002) (“In light of Crawford-El, nearly all of the circuits have now
34
disapproved any heightened pleading standard in cases other than those governed
by Rule 9(b)”).
I. THE DISTRICT COURT APPLIED A HEIGHTENED PLEADING

STANDARD TO PLAINTIFFS’-APPELLANTS’ CIVIL RIGHTS
CLAIMS, DIRECTLY DISOBEYING THE TEACHINGS OF
THE SUPREME COURT AND OF THIS COURT
For nearly half a century, the principles governing disposition of motions to
dismiss made pursuant to F.R.Civ.P. Rule 12(b)(6) have been tested by litigants
and judges seeking to pretermit federal civil rights lawsuits at the earliest possible
moment. See Johnson v. City of Shelby, Mississippi, 135 S.Ct. 346 (2014); Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Bell Atlantic
Corporation v. Twombly, 550 U.S. 544 (2007); Jones v. Bock, 549 U.S. 199
(2007); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Crawford-El v. Britton,
523 U.S. 574 (1998).2 Rule 8 never justifies the application of heightened pleading
requirements to complaints attacked on the ground of failing to state a claim upon
which relief can be granted. See, e.g., Johnson, 135 S.Ct. at 346-47 (“Federal
pleading rules call for a short and plain statement of the claim showing that the
pleader is entitled to relief” ... “they do not countenance dismissal of a complaint
for imperfect statement of the legal theory supporting the claim asserted”)
2
In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court rejected
the use of a Rule 12(b)(6) motion to filter claims that litigants and judges are
convinced “lack merit.“ As the Court explained, 534 U.S. at 514, “claims lacking
merit may be dealt with through summary judgment under Rule 56.”
35
(citations and internal quotation marks omitted); Tellabs, Inc., 551 U.S. at 319 (“In
an ordinary civil action, the Federal Rules of Civil Procedure require only ‘a short
and plain statement of the claim showing that the pleader is entitled to relief’”)
(citation omitted).
As the Court noted in Johnson, 135 S.Ct. at 347, the Federal Rules "are
designed to discourage battles over mere form of statement[.]"3 Even before
heightened standards for pleadings in civil rights cases were rejected, Johnson,
supra; Tellabs, Inc., supra; Twombly, supra; Jones v. Bock, supra; Swierkiewicz,
supra; Crawford-El, supra; Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163 (1993), the Supreme Court had explained
that, “[w]hen a federal court reviews the sufficiency of a complaint … [t]he issue is
not whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims”). Scheuer v. Rhodes, 416 U. S. 232, 236
(1974).
3
Rule 8 makes "notice pleading" the standard for all federal civil litigation.
Exceptions to the generous general standard only exist if they are established by
rule or statute. See, e.g., F.R.Civ.9(b) ("In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake");
F.R.Civ.P. 9(g) ("If an item of special damage is claimed, it must be specifically
stated"). Cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (“Rule 8(a)'s
simplified pleading standard applies to all civil actions, with limited exceptions.
Rule 9(b), for example, provides for greater particularity in all averments of fraud
or mistake. This Court, however, has declined to extend such exceptions to other
contexts”).
36
In fact, the District Court applied a heightened standard of pleading to each
and every civil rights claim in the TAC. See, e.g., TOR 3-5, ER-5-7. After all, the
Defendants-Appellees had urged the District Court to apply a heightened pleading
standard in their supporting legal memoranda. Docket Entry 37, at 7-9, Docket
Entry 35, at 7-9.
True enough, the District Court asserted that it was not applying a
heightened standard of pleading. TOR 17, ER-19. The lower court’s denial is
difficult to square with its immediate announcement of a heretofore unknown
“Jacobson claim”:
But Jacobson is not about pleading standards. Jacobson provides the

substantive elements needed to state a constitutional claim during a
public health emergency.
The elements under Jacobson are, one, whether the Government

action has a real or substantial relation to the crisis, and, two, whether
the Government action is not beyond all question a plain, palpable
invasion of rights secured by the fundamental law.
TOR 17, ER-19 (emphasis added).4
4
To state the District Court’s proposition – that the standards for asserting a
federal civil rights claim arising under a provision of the United States Constitution
were established in the context of the Supreme Court’s review of a criminal
prosecution for disobeying a vaccine mandate issued by local health officials in
Cambridge, Massachusetts – is to dispose of it. Federal courts do not establish the
“elements” of “claims.”
37
Nor does the District Court’s asserted repudiation that its application of
Jacobson constituted the application of a heightened pleading standard square with
the reasoning expressed from the bench:
The elements under Jacobson are, one, whether the Government

action has a real or substantial relation to the crisis, and, two, whether
the Government action is not beyond all question a plain, palpable
invasion of rights secured by the fundamental law.
…
And I did apply Jacobson in deciding the TRO application, and I
applied Jacobson when deciding motions on pleadings and other legal
challenges to State and County health orders, and other orders that I've
issued including Givens v. Newsom from May 8th, 2020, and Cross
Culture Christian Center v. Newsom issued on May 5th, 2020.
And until or unless the Ninth Circuit or the Supreme Court possibly
revisits Jacobson or provides a different standard for evaluating State
action that's taken to protect public health, the Court does find that
Jacobson remains the proper standard to be applied throughout this
litigation.
Under Jacobson the Court must uphold the gym closures required by
the State and County stay-at-home orders, unless, again, there's no
real or substantial relation to public health, or the measures, beyond
all question, a plain, palpable invasion of rights secured by the
fundamental law.
There are new factual sections in the Third Amended Complaint that
have to do with the social value of gyms. The George Floyd protests.
June and July changes to State and County public health orders.
But there have not been any facts added that go to the issue of whether
the orders lack a real or substantial relation to the pandemic.
Because the Third Amended Complaint fails to allege sufficient facts

to support the claim that the orders lack a real or substantial relation to
38
the pandemic, it does fail, as a matter of law, on the first prong on

Jacobson.
The Third Amended Complaint also fails as a matter of the law to

show that the challenged orders are, quote, beyond all question, a
plain and palpable invasion of rights secured by fundamental law.
TOR 17-18, ER-19-20.
Neither this Court nor the Supreme Court require protection from litigants
and judges too zealously “managing” their dockets by the application of
uncountenanced standards. The excesses of docket management embodied in the
application of unauthorized heightened pleading standard – a persistent problem
that this Court and the Supreme Court have been compelled to spend too much
time repairing – has been thoroughly repudiated by the Supreme Court, see Jones
v. Bock, 549 U.S. 199 (2007) (“Thus, in Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U. S. 163 (1993), we unanimously
reversed the court of appeals for imposing a heightened pleading standard in §1983
suits against municipalities. We explained that "[p]erhaps if [the] Rules ... were
rewritten today, claims against municipalities under §1983 might be subjected to
the added specificity requirement ... . But that is a result which must be obtained by
the process of amending the Federal Rules, and not by judicial interpretation”)
(citation omitted); Swierkiewicz v. Sorema N. A., 534 U. S. 506, 515 (2002)
(amendment of the Federal Rules, rather than ad hoc rationales, is the sole proper
means for imposing heightened pleading standards); id. at 511(“This Court has
39
never indicated that the requirements for establishing a prima facie case under
McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy
in order to survive a motion to dismiss”); Hill v. McDonough, 547 U. S. 573 (2006)
(no heightened pleading standard for Section 1983 challenge to method of
execution that would require civil rights claimant to plead the existence of
permissible methods of execution); id. (“Specific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and not, as a general rule,
through case-by-case determinations of the federal courts”); Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)
(“examination of the Fifth Circuit's decision in this case makes it quite evident that
the heightened pleading standard is just what it purports to be: a more demanding
rule for pleading a complaint under § 1983 than for pleading other kinds of claims
for relief”) (internal quotation marks and citation omitted); id. at 168 (“We think
that it is impossible to square the heightened pleading standard applied by the Fifth
Circuit in this case with the liberal system of notice pleading set up by the Federal
Rules”) (internal quotation marks omitted), and by this Court, see Mendiondo v.
Centinela Hospital Medical Center, 521 F.3d 1097 (9th Cir. 2008) (“The Supreme
Court has narrowly construed Rule 9(b) to apply only to the types of actions
enumerated in the rule- those alleging fraud or mistake-and has not extended the
heightened pleading standard to other legal theories”); Empress LLC v. City and
40
County of San Francisco, 419 F.3d 1052 (9th Cir. 08/18/2005) (“[t]he district court
erred in applying a heightened pleading standard to the Patels' claims”) (citing
Leatherman, supra; Empress LLC, 419 F.3d at 1056 (“the logical conclusion of
Leatherman, Crawford-El, and Swierkiewicz dictates that a heightened pleading
standard should only be applied when the Federal Rules of Civil Procedure so
require. Because the Rules do not require a heightened pleading standard for the
claims advanced by the Patels, the district court erred in applying such a standard
in considering the Rule 12(b)(6) motion to dismiss their complaint); Maduka v.
Sunrise Hospital, 375 F.3d 909, 912 (9th Cir. 2004) (“Our review, however, yields
a different conclusion: the district court did not follow the teaching of
Swierkiewicz that ‘the Federal Rules do not contain a heightened pleading standard
for employment discrimination suits’”); Maduka, 375 F.3d at 913 (“[s]imply put,
the district court erred in not applying the ordinary rules for assessing the
sufficiency of a complaint”) (citation and quotation marks omitted); Wong v.
United States of American Immigration and Naturalization Service, 373 F.3d 952
(9th Cir. 2004) (no heightened pleading standard); Morgan v. United States, 323
F.3d 776, 780 (same); Porter v. Jones, 319 F.3d 483 (9th Cir. 2003) (“in Galbraith
v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002), we held that
Branch v. Tunnell's heightened pleading standard did not survive the Supreme
Court's decision in Crawford-El v. Britton, 523 U.S. 574 (1998)”); Miranda v.
41
Clark County, 319 F.3d 465 (9th Cir. 2003) (“We recognize that the result reached
by the district court in dismissing the complaint was in part dictated by heightened
pleading standards that are no longer applicable. … We have now held that no
heightened pleading standard applies unless required by the Federal Rules of Civil
Procedure”) (citation omitted); Galbraith v. County of Santa Clara, 307 F.3d 1119
(9th Cir. 2002) (“In light of Crawford-El, nearly all of the circuits have now
disapproved any heightened pleading standard in cases other than those governed
by Rule 9(b)”); Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) (“the
Supreme Court has specifically declared that ‘a federal court may not apply a
heightened pleading standard to a complaint alleging municipal liability under §
1983’ … Therefore, the bare requirements of notice pleading under Rule 8(a)
govern our review of the legal sufficiency of plaintiffs' claims”) (citation omitted).
Cf. Winn v. Arizona Christian School Tuition Organization, 586 F.3d 649, 864 (9th
Cir. 2009) (disapproving the dissenting opinion as potentially calling “for … a
heightened pleading standard for Establishment Clause claims”).
The District Court’s unlawful derivation of a Jacobson cause of action and
of the standards governing it is wrong and inconsistent with the notice pleading
standard embodied in Rule 8 of the Federal Rules of Civil Procedure. Contrary to
Johnson, 135 S.Ct. at 347 (2014), the District Court concluded that Fitness System
and Covell “were required to do … more to stave off threshold dismissal for want
42
of an adequate statement of their claim.” The Defendants’-Appellees’ impatience
to arrive at a final judgment, and to do so without answering the TAC and without
undergoing discovery, while understandable, cannot make commendable the
District Court’s disregard of Rule 8’s notice pleading standard and of the
controlling decisions of the Supreme Court and this Court.
For the foregoing reasons, the Court should reverse the District Court’s
judgment below.
II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT

THE CLAIMS OF THE THIRD AMENDED COMPLAINT FAILED
TO STATE CLAIMS ON WHICH RELIEF COULD BE GRANTED.
In rendering its oral ruling from the bench, the District Court concluded that
even if no special pleading standard were required under Rule 8 of the Federal
Rules of Civil Procedure, the Third Amended Complaint should be dismissed for
failure to state claims on which relief could be granted. See generally TOR 16-35,
ER-18-37. The District Court, as explained herein, erred in its decision.
A. Count I: freedom of speech, freedom of assembly, and freedom of

expressive association
Whether in a public school classroom, a private school classroom, or in an
adult extension program, or as alleged here, there is a fundamental expressive
component to such instruction that commands the solicitude of the First
Amendment. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
The District Court acknowledged, ‘[t]he First Amendment does protect individuals
43
from undo interference with their freedom of speech assembly and expressive
association.” TOR 21, ER-23. Nonetheless, the District Court concluded,
“Plaintiffs' motion fails to explain how the State and County gym closures prohibit
protected speech.” Id.
The District Court ignored the facts asserted regarding Fitness System’s and
Covell’s Count I, alleging violations of the right to freedom of speech, freedom of
assembly, and expressive association. Plaintiffs-Appellants plainly pled that
Fitness System offers both individual training to its clients and fitness classes.
TAC ¶¶ 40-47, ER-47-48.
True enough, this case is not one in which ecdysiasts or pole dancers have
no difficulty in obtaining the understanding of the Court that the physical motions
in which they engage constitute expressive conduct. Judge Mendez could not
explain away, and therefore he ignored, that a substantial component of Plaintiffs’-
Appellants’ operation of a fitness facility is verbal communication5 (commonly
5
Judge Mendez’s confusion on whether Fitness System and Covell had adequately
pled the exercise of the right to freedom of speech and of expressive association is
evident. The District Court asserted, “While Plaintiffs' attempt to characterize the
interactions between gym staff and customers as expressive association, the
Plaintiffs still have offered no legal authority to support the idea that this type of
non-expressive commercial interaction is, in fact, protected.” TOR 22, ER-24. The
“non-expressive commercial interaction” to which the District Court refers
included individual counseling and instruction in health and fitness and class
instruction in fitness and exercise. These activities are, as Plaintiffs-Appellants
have consistently claimed, the exercise of at least those two fundamental rights,
speech and association.
44
referred to as “speech”) and certainly endowed with protected status under the First
Amendment’s Freedom of Speech Clause. See TAC ¶¶ 43-45; ER-47-48.
Moreover, the Plaintiffs-Appellants adequately alleged that they were engaged in
expressive association. See TAC ¶¶ 259, 261; ER-42, 88-89.
Nor, as the District Court erroneously concluded, is it any salve to those
suffering deprivation of fundamental expressive and associational rights to tell
them that they are free to go somewhere else and to do something else. The
Supreme Court has sharply disapproved the shell game embodied in offers of
alternative means and methods of communication. Yet Judge Mendez discounted
the fundamental rights asserted in Count I by suggesting that, after all, “Plaintiffs
have always been permitted to communication and associate with their clients
through virtual gatherings, and through things such as Zoom.” TOR 23, ER-25.
Fitness System and Covell could abide the proper application of the rules to
their claim even if it meant, ultimately, that they could not obtain equitable relief
Or, for another example, Judge Mendez held, “The new amendments to the
complaint do nothing to further Plaintiffs' First Amendment arguments, because
the Plaintiffs still have not shown that the First Amendment protections are
triggered in the first instance for the non-expressive conduct at issue….” Id. Again,
Judge Mendez ignored the well-pled facts regarding individual and class
instruction and individual counseling, leaving the impression that Fitness System
and Covell pressed the claim that the use of exercise equipment or the repetition of
bicep curls is all and only what Plaintiffs-Appellants claim constitutes their
exercise of First Amendment rights of speech and association. The TAC, to the
contrary, alleges archetypical exercises of speech: teaching and counseling.
45
from the public health orders of State and Local Defendants-Appellees. The
decision below, however, asserts that no right to freedom of speech or to
expressive association was even properly pled. That assertion is simply wrong,
whether through deliberation or indifference.
B. Count II and IX: violations of the federal Takings Clause and the
California Constitution Takings Clause
The Takings Clauses presuppose that, when public purpose so commands,
the private property of individuals can be taken from its owner and applied, for the
community's benefit, to the service of a public good. See U.S. Const. amend. V
(“nor shall private property be taken for public use, without just compensation”);
Calif. Const. art. I, § 19 (“Private property may be taken or damaged for a public
use and only when just compensation, ascertained by a jury unless waived, has first
been paid to, or into court for, the owner. The Legislature may provide for
possession by the condemnor following commencement of eminent domain
proceedings upon deposit in court and prompt release to the owner of money
determined by the court to be the probable amount of just compensation.”). This
point is not insignificant: the requirements of the Takings Clause, that a taking be
for a “public purpose” and that compensation be paid therefore demonstrate that,
even when pressing, urgent, important, or compelling needs are offered to justify
the destruction of the right to private property, still the governmental parties are
not excused from the duty of compensation.

46
While the Takings Clauses allow the taking of private property, they also
command compensation for the taking. While an exceedingly important public
purpose commands that individuals surrender the bundle of sticks known as private
property to the use of the public, NONETHELESS our Constitutions command
compensation. Thus, while an injunction may not prevent the proper exercise of
the Taking Power, the Takings Clauses command compensation.
Dismissing Counts II and IX, the District Court principally relied on Tahoe-
Sierra Pres. Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).
More properly, the District Court principally relied on the time span covered by the
moratorium at issue in Tahoe-Sierra Pres. Council. “[T]he Supreme Court held
that even a complete but temporary restriction on property use, like the 32-month
moratorium on the development at Lake Tahoe, which was at issue, did not in and
of itself, constitute a regulatory taking.” TOR 24; ER-26. To that end, however, the
District Court ignored the Supreme Court’s warning that, “[i]n our view the answer
to the abstract question whether a temporary moratorium effects a taking is neither
‘yes, always’ nor ‘no, never;’ the answer depends upon the particular
circumstances of the case.” 535 U.S. at 321.
As regrettable as is this outcome, the decision below essentially licenses
uncompensated deprivation of property through regulatory takings so long as the
taking does not exceed the 32 months of the Tahoe moratoria. The District Court
47
failed to undertake a fact-based evaluation as directed by the Supreme Court.
“Indeed, if the Supreme Court did not find a 32-month moratorium to constitute a
regulatory taking, Plaintiffs' allegations of a few months of gym closures, and now
capacity restrictions on re-opening, are clearly insufficient to establish a regulatory
taking[.]” [TOR 24-25; ER-26-27.
Judge Mendez’s focus on the length of the term of the governmental taking
also illustrates the error below. The taking in Tahoe-Sierra Pres. Council extended
over 32 months. Judge Mendez, however, missed that fundamental principle of the
Takings Clauses, explained in cases such as First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318-319 (1987), ‘that
“‘temporary’ takings which, as here, deny a landowner all use of his property, are
not different in kind from permanent takings, for which the Constitution clearly
requires compensation.”
“It is axiomatic that the Fifth Amendment's just compensation provision is
‘designed to bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole.’" Id. This Court is in the position to remind the District Court that, “[w]here
this burden results from governmental action that amounted to a taking, the Just
Compensation Clause of the Fifth Amendment requires that the government pay
the landowner for the value of the use of the land during this period”). Id.
48
C. Count III: violations of the right to intrastate travel
While acknowledging that neither the Supreme Court nor this Court has
recognized a right to intrastate travel,6 Plaintiffs-Appellants made a good faith
argument below for the revision and or extension of existing law by recognizing
that there is a federally protected right to travel within a state. The District Court
answered, “because the constitutional right to intrastate travel does not exist, it is
not relevant what facts Plaintiffs have pled.” TOR 26; ER-28.
Here, Plaintiffs-Appellants preserve their prayer that a change or revision be
made to existing law and principles, such change recognizing that the Privileges
and Immunities of citizens of the United States includes the privilege of traveling,
not just between States, but within a single State. In the view of the Plaintiffs-
Appellants, the law is wrong and should be altered. Given the status of the as-yet-
unrecognized right, however, Plaintiffs-Appellants make no other argument
regarding the disposition of this claim.
6
But see Memorial Hosp. v. Maricopa County, 415 U.S. 250, 255-56 (1974)
(“Even were we to draw a constitutional distinction between interstate and
intrastate travel, a question we do not now consider, such a distinction would not
support the judgment of the Arizona court in the case before us”).
49
D. Count IV: violations of procedural and substantive due process rights 7
Fitness System and Covell alleged that the Orders denied to them
constitutionally guaranteed rights to due process, including both procedural due
process and substantive due process. TAC ¶¶ 303-321, ER-95-98. As Fitness
System alleged, TAC ¶¶ 305, 317, ER-95-97, the abridgment of its rights—to free
speech, to freedom of association, to contract, to engage in a livelihood—all
occurred without any proceeding thereon.
Where a question of procedural due process arises in civil litigation such as
the present matter, the Supreme Court has prescribed a balancing test to evaluate
what process may be due in any particular case, depending on the private interest
affected, risks of erroneous deprivation of that interest, and any government
interest at stake. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). Here,
Fitness System has identified several interests in liberty and in property of which it
has been deprived, including rights guaranteed by the First, Fifth, and Fourteenth
Amendments to the U.S. Constitution. See generally TAC; ER-40, et seq. These
deprivations result from the complete closure of Fitness System’s facility, directly
caused by the imposition of the Orders complained of in the TAC. Moreover,
Fitness System has alleged, in well-pled facts, that it was not afforded any process
7
Count IV of the TAC also alleged that the Orders complained of were
unconstitutional for vagueness. Plaintiffs-Appellants do not further contest the
District Court’s disposition of their vagueness argument.
50
at all before the deprivations occurred. See TAC ¶ 317, ER-97. Cf. Halverson v.
Skagit Cnty., 42 F.3d 1257, 1260 (9th Cir. 1994).
The Defendants-Appellees deprived Fitness System of the fundamental right
to freedom of speech and association, stripped Fitness System of any economically
beneficial use of its leasehold, and impaired its numerous contractual agreements
with clients. To inflict such harms, the Defendants-Appellees were obliged to
provide notice to Fitness System and the opportunity to be heard prior to the
deprivations. See Matthews, 424 U.S. at 334-35.
This case is not one in which decisions addressing procedural due process
claims against legislative enactments provides necessary guidance. The TAC
identified the EXECUTIVE ACTIONS of the State and Local Defendants as the
cause of the harms that they have suffered. Those actions – the issuance of a
panoply of public health Orders – did not arise on the well-developed record of a
legislative process. The Defendants-Appellees did not provide to Fitness System
and Covell the opportunity to be heard at a meaningful time and in a meaningful
manner. See Boddie v. Connecticut, 401 U.S. 371, 378 (1971). Consequently, the
District Court erred in dismissing the procedural due process claim.
As with the District Court’s slight of the First Amendment claim, the
District Court also dismissed the substantive due process claim:
The substantive due process claim also fails. In order to state a claim
for substantive due process, the Plaintiff has to show that the state
51
action challenge neither [sic] shocks the conscience, or arbitrarily

deprives the Plaintiff of a fundamental right. One, there are no
fundamental rights that have been identified in this case, and,
therefore, that claim fails. This also is the case [sic] that involves a
state action that shocks the conscious.
TOR 27; ER-29. The District Court ignored the fundamental rights identified in the
TAC, having already categorically excluded the existence of fundamental rights in
this case. As to those fundamental rights, Fitness System and Covell alleged, with
well-pled facts, that several fundamental rights have been, and are being, impinged
by the Orders complained of, including freedom of speech, freedom of association,
the right to property, and the right to engage in an occupation. See TAC ¶¶ 309-
310, 312-314; ER-96. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (discussing other rights recognized as fundamental “in addition to the
specific freedoms protected by the Bill of Rights”).
The disposition of the substantive due process claim on the ground that no
“fundamental rights” were at issue should be reversed, as it is clearly erroneous.
E. Count V and VIII: violations of the Equal Protection Clause of the

Fourteenth Amendment and the Equal Protection Clause of the California
Constitution
[Over a] century ago, the first Justice Harlan admonished … that the
Constitution ‘neither knows nor tolerates classes among citizens.’
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion).
Unheeded then, those words now are understood to state a
commitment to the law's neutrality where the rights of persons are at
stake. The Equal Protection Clause enforces this principle . . . .
Romer v. Evans, 517 U.S. 620, 623 (1996)

52
Fitness System and Covell adequately pled that the public health orders at
issue here burden the exercise of their fundamental rights to freedom of speech and
to associational freedom. See TAC ¶¶ 43, 44, 87, 261, 263-265; ER-47-48, 54, 89,
89 (factual premises of injury to Fitness System’s freedom of speech and freedom
of association). The expressive activities of Fitness System and its fitness trainers,
including the one-on-one counseling and training and the class instruction, are
sufficiently pled in the TAC. See TAC 330, 331, 332, 333, 334, 335; ER-99-100.
Strongly contrasting the abrupt, complete shutdown imposed on Fitness
System and the prohibition on leaving his home imposed on Covell, Plaintiffs-
Appellants demonstrated that the very same government actors afflicting them
were countenancing and encouraging, by others, the exercise en masse of the very
same rights of freedom of speech and association. See Concise Statement of the
Case, supra (describing the George Floyd protests in California, and the solicitous
and endorsing remarks toward those protestors and their messages).
The contrast between the latter and the former clearly gave the District Court
pause:
Plaintiffs do raise an argument with respect to the George Floyd

protests. Plaintiff contends that the decisions of the State and County
to accommodate, encourage and endorse those demonstrations,
protests, et cetera, embody a preference for those messages over the
messages of the Plaintiffs, and that a preference for one message
embodies a classic violation of the Equal Protection Clause.
TOR 29; ER-31. Nor was the import of the contrast lost on Judge Mendez:
53
Plaintiffs then insist that strict scrutiny applies because of this

preferential and favorable treatment given to the George Floyd
protestors.
Id. After all, Plaintiffs-Appellants had argued that the Orders violated the Equal
Protection Clause because the difference in treatment between Plaintiffs-
Appellants and the George Floyd protestors was based on the preference of State
and Local Defendants – particularly Newsom and Parks – for the messages of the
George Floyd protestors.8 Docket Entry 40, Plaintiffs’ Omnibus Opposition to the
Motions to Dismiss, at 8-9. Consequently, as the District Court understood, under
this claim, the Orders would have been subject to strict scrutiny. The District Court
disagreed, again resting on its previous conclusion that no fundamental right was at
issue:
The Court disagrees as explained with respect to the First Amendment

claim. Plaintiffs have failed to allege that the First Amendment
8
To the extent that this contrast raised concerning questions for the District Court,
it was prescient. That contrasting of preferred and disfavored speakers and speech
was not lost on Justice Gorsuch. Concurring in the Supreme Court’s recent grant of
partial relief against Newsom’s restrictions on indoor church services, Justice
Gorsuch, joined by Justices Thomas and Alito, made a point virtually identical to
that advanced below and here by Plaintiffs-Appellants:
[W]e appear to have a State playing favorites during a pandemic,

expending considerable effort to protect lucrative industries (casinos
in Nevada; movie studios in California) while denying similar
largesse to its faithful.
See Statement of Gorsuch, J., slip op. at 4-5, South Bay United Pentecostal Church
v. Newsom, Supreme Court Docket No. 20A136.
54
protections attach in the first instance, and because none of their other
claims survived the Court's analysis, there is no fundamental right
upon which the orders have impinged, and, therefore, no fundamental
right upon which strict scrutiny could be triggered.
TOR 30, ER-32. The District Court, however, erred in concluding that no
fundamental right had been pled.
The District Court confused two conceptually distinct questions.
The first question – is there a fundamental right at issue – functions like a
gatekeeper. Strict scrutiny will be applied only in cases in which the burdened right
is fundamental. Plaintiffs-Appellants itemized the burdened rights, including
freedom of speech and freedom of association. Each is, most certainly, a
fundamental right. See Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)
(“That freedom of speech and of the press are rights of the same fundamental
character, safeguarded by the due process of law clause of the Fourteenth
Amendment against abridgement by state legislation, has likewise been settled[.]
The word ‘liberty’ contained in that amendment embraces not only the right of a
person to be free from physical restraint, but the right to be free in the enjoyment
of all his faculties as well”) (citations omitted).
The second question – is the burden on the exercise of the fundamental right
“supported by sufficiently important state interests and … closely tailored to
effectuate only those interests,” Zablocki v. Redhail, 434 U.S. 374, 388 (1978) –
examines whether the government actor has adequately pled and/or proven, in
55
essence and in fact, an affirmative defense. Here, the District Court compounded
its error by concluding that the TAC failed to state a fundamental rights equal
protection claim because the Plaintiffs-Appellants failed to disprove an affirmative
defense. In the process, the District Court shifted to the Plaintiffs-Appellants a
burden properly assigned to the government defendants. The District Court erred in
dismissing the federal and state equal protection claims for failure to state a claim
on which relief could be granted.
F. Count VI: violations of the Contract Clause of the United States

Constitution
The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall …
pass any … Law Impairing the Obligation of Contracts.” The public health orders
complained of in the TAC impair the obligation of contracts entered between
Fitness System and its clients. The District Court erred in concluding that the TAC
failed to state a claim for impairment of contract in violation of the Contract
Clause of the Constitution.9
9
This Court has held that Contract Clause claims are cognizable under Title 42
U.S.C. § 1983. “The right of a party not to have a State, or a political subdivision
thereof, impair its obligations of contract is a right secured by the first article of the
United States Constitution. A deprivation of that right may therefore give rise to a
cause of action under section 1983.” Southern California Gas Co. v. City of Santa
Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam).
56
The TAC alleges the existence of contracts between Fitness System and its
clients. See TAC ¶ 41 (“To conduct their business, the Plaintiffs have formulated
contracts with individuals and other businesses for the provision of their facilities
and services”). See also TAC ¶ 342, ER-101 (“Plaintiffs were … parties to
contracts with its clients for the provision of their services and the use of their
facilities by their clients”); TAC ¶ 343, ER-101 (“The contracts … were lawful,
freely negotiated, willingly entered by the parties to them, and executed with the
expectation of ongoing exchanges of benefits between the parties, an expectation
both reasonable and legitimate at the time of the making of those nearly 6000
contracts”).
The District Court–rather than weighing the allegations of the TAC to
determine whether the existence of a contract was alleged (it was) and rather than
determining whether it was impaired (it was) and rather than determining whether
the impairment was substantial (it was)–concluded that Plaintiffs-Appellants had
failed to plead facts establishing that the impairment served a legitimate public
purpose and is reasonable and necessary. Instead, the District Court “concludes the
obvious, that the orders being challenged do, in fact, have a significant and
legitimate public purpose to curb the spread of COVID-19. Plaintiffs have also not
alleged any fact showing that the contractual impairments resulting from the orders
are not reasonable and necessary to fulfill a public purpose.” TOR 31; ER-33.
57
In leaping to the questions of public purpose, reasonability, and necessity,
the District Court penalized Plaintiffs-Appellants for failing to plead facts that
would disestablish the State and Local Defendants’ affirmative defenses of public
purpose, reasonability, and necessity. Certainly, on the merits, either on a Rule 56
motion for summary judgment or at trial, the Contract Claim would have to
withstand analysis under the three prong test for Impairment of Contract claims.
See Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400,
411-412 (1983). At this early stage of litigation, however, the District Court
committed reversible error by dismissing the Contract Clause claims for failure to
state a claim on which relief might be granted.
G. Count VII: violations of the Liberty Clause of the California Constitution
The District Court, dismissing relevant authorities, concluded that Count VII
failed to state a claim on which relief could be granted:
This Court has already determined that neither the County order,
generally, nor its gym closures, specifically, amount to virtual
imprisonment such that it violates Plaintiffs' right to liberty under the
cases the Plaintiffs cite. … The challenged public health orders simply
do not operate as a quarantine on Plaintiffs, let alone amount to a
virtual imprisonment.
TOR 32; ER-34. The District Court erred.
Plaintiffs-Appellants adequately pled a violation of its rights under the
Liberty Clause of the California Constitution. See TAC ¶¶ 156-171, 359-367, ER-
64-66, 104-105. Cf. Ex parte Arta, 52 Cal. App. 380, 383 (1921) (“a mere
58
suspicion [of a contagious disease], unsupported by facts giving rise to reasonable
or probable cause, will afford no justification at all for depriving persons of their
liberty and subjecting them to virtual imprisonment under a purported order of
quarantine”); In re White, 97 Cal.App.3d 141, 148 (1979) ("right to intrastate travel
(which includes intramunicipal travel) is a basic human right protected by the
United States and California Constitutions as a whole").
CONCLUSION
For the foregoing reasons, this Court should reverse the judgment below and
remand the case for consideration on the merits.
DATED: March 12, 2021.
/s/ James M. Henderson, Sr. /s/ Brian Ricardo Chavez-Ochoa

Chavez-Ochoa Law Offices, Inc.
Attorneys for Plaintiffs/Appellants
59
STATEMENT OF RELATED CASES
Inasmuch as the cases identified below raise the closely related issues,
Plaintiffs-Appellants note that, in their review of this Court’s now-pending
appeals, the following matters may be related:
Samuel Armstrong v. Gavin Newsom, et al, No. 21-55060

Ritesh Tandon, et al v. Gavin Newsom, et al, No. 21-15228
Gateway City Church, et al v. Gavin Newsom, et al, No. 21-15189
Harvest Rock Church, Inc., et al v. Gavin Newsom, No. 20-56357
Matthew Brach, et al v. Gavin Newsom, et al, No. 20-56291
DATED: March 12, 2021.
/s/ James M. Henderson, Sr. /s/ Brian Ricardo Chavez-Ochoa

60
CERTIFICATE OF COMPLIANCE FOR BRIEF
9th Cir. Case Number 20-17362
I am the attorney or self-represented party.
This brief contains 11,993 words, excluding the items exempted by Fed. R.
App. P. 32(f).
The brief’s type size and typeface comply with Fed. R. App. P. 32(a)(5) and
(6).
I certify that this brief complies with the word limit of Cir. R. 32-1.
Date: March 12, 2021 Signature: /s/ Brian Ricardo Chavez-Ochoa

61
CERTIFICATE OF SERVICE
All parties to this appeal are registered electronic filers with this Court.
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on March 12, 2021.
Date: March 12, 2021 Signature: /s/ Brian Ricardo Chavez-Ochoa

62
ADDENDUM OF CONSTITUTIONS, STATUTES, RULES
US Constitution
U.S. Constitution, Art. I, § 10:
No state shall … pass any … law impairing the obligation of contracts

....
U.S. Constitution, Amend. I:
Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
U.S. Constitution, Amend. VI:
[N]or shall private property be taken for public use, without just
compensation.
U.S. Constitution, Amend. XIV:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
Federal Statutes
Title 28 USC 1291:
The courts of appeals (other than the United States Court of Appeals
for the Federal Circuit) shall have jurisdiction of appeals from all final
decisions of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of
Guam, and the District Court of the Virgin Islands, except where a
63
direct review may be had in the Supreme Court. The jurisdiction of

the United States Court of Appeals for the Federal Circuit shall be
limited to the jurisdiction described in sections 1292(c) and (d) and
1295 of this title.
Title 28 USC 1331:
The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.
Title 28 USC 1343(a)(3):
(a)The district courts shall have original jurisdiction of any civil

action authorized by law to be commenced by any person:
…
(3)To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage, of
any right, privilege or immunity secured by the
Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of all
persons within the jurisdiction of the United States;
Title 28 USC 1367(a):
Except as provided in subsections (b) and (c) or as expressly provided

otherwise by Federal statute, in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United
States Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties.
Title 42 USC 1983:
Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
64
deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia.
Federal Rules of Civil Procedure
Rule 8(a):
(a) Claim for Relief. A pleading that states a claim for relief must
contain:
(1) a short and plain statement of the grounds for the

court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that

the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include

relief in the alternative or different types of relief.
Rule 9(a)-(b)
(a) Capacity or Authority to Sue; Legal Existence.
(1) In General. Except when required to show that the

court has jurisdiction, a pleading need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a

representative capacity; or
65
(C) the legal existence of an organized

association of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a

party must do so by a specific denial, which must state
any supporting facts that are peculiarly within the party's
knowledge.
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or

mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.
Rule 12(b)(6)
(b) How to Present Defenses. Every defense to a claim for relief in

any pleading must be asserted in the responsive pleading if one is
required. But a party may assert the following defenses by motion:
(6) failure to state a claim upon which relief can be granted.
A motion asserting any of these defenses must be made before

pleading if a responsive pleading is allowed. If a pleading sets out a
claim for relief that does not require a responsive pleading, an
opposing party may assert at trial any defense to that claim. No
defense or objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.
California Constitution
Liberty Clause
66
Cal. Const. Art. I, § 1:
All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.
A person may not be deprived of life, liberty, or property without due

process of law or denied equal protection of the laws . . . .
Private property may be taken or damaged for a public use and only
when just compensation, ascertained by a jury unless waived, has first
been paid to, or into court for, the owner.
67

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Case: 20-17362, 03/12/2021, ID: 12039383, DktEntry: 6, Page 1 of 67

IN THE UNITED STATES COURT OF APPEALS

BEST SUPPLEMENT GUIDE LLC and SEAN COVELL

GAVIN NEWSOM, XAVIER BECERRA, SONIA Y. ANGELL,

On Appeal from the United States District Court

APPELLANTS’ OPENING BRIEF

James M. Henderson, Sr. Brian Ricardo Chavez-Ochoa

Rule 26.1 Statement

The Appellants are Best Supplement Guide LLC, a California corporation,

publicly held corporation owns 10% or more of its stocks.

Rule 26.1 Statement ................................................................................................. 2

TABLE OF AUTHORITIES ................................................................................... 6

JURISDICTIONAL STATEMENT ..................................................................... 10

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ......................... 11

CONCISE STATEMENT OF THE CASE ........................................................... 12

Fact Relevant to the Issues Submitted for Review ...................................... 12

The Parties to the Appeal .................................................................. 12

Fitness Systems and the Role of Personal Trainers in

Gyms and Fitness: Building Stronger and Healthier Communities .. 14

A Cascade of Declarations and orders Responding to COVID-19 ... 15

The Taking: Fitness System Compelled to Close ............................. 19

Counsel Correspond: Enforcement Threats Confirmed .................... 19

Homicide in Minneapolis Provokes Outrage Across Nation

Defendants-Appellees Destroy Plaintiffs’-Appellants’

Uncertain Trumpets: Newsom to Allow Gyms to Open Park to Allow

Procedural History ....................................................................................... 30

Ruling Presented for Review ....................................................................... 32

SUMMARY OF ARGUMENT ............................................................................. 32

Concise Statement of the Applicable Standard of Review.......................... 34

I. THE DISTRICT COURT APPLIED A HEIGHTENED PLEADING

II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED

A. Count I: freedom of speech, freedom of assembly, and

B. Count II and IX: violations of the federal Takings Clause .......... 46

C. Count III: violations of the right to intrastate travel .................... 49

D. Count IV: violations of procedural and substantive due

E. Count V and VIII: violations of the Equal Protection Clause

F. Count VI: violations of the Contract Clause of the

G. Count VII: violations of the Liberty Clause of the

ADDENDUM OF CONSTITUTIONS, STATUTES, RULES............................. 61

PROOF OF SERVICE ........................................................................................... 66

Keyishian v. Board of Regents (1967)

Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency (2002)

only requires sufficiently stated facts to satisfy the requirement of “notice

this rogue application of an unauthorized standard of review, nothing more. It

certainly was not authorized by the Federal Rules of Civil Procedure.

Plaintiffs-Appellants own and operate a membership-based fitness center in

Lodi, California. The Defendants-Appellees are state and local government

officials and entities possessing and exercising governmental power, purportedly

generally Plaintiffs’ Third Amended Complaint (“TAC”); ER-40, et seq.

Plaintiffs'-Appellants' federal causes of action sought redress for violations

speech, freedom of assembly, and freedom of expressive association (Count I),

Process and Privileges and Immunities Clauses of the Fourteenth Amendment

violations of the Equal Protection Clause of the Fourteenth Amendment (Count

(Count Six). Id.

Plaintiffs'-Appellants' California causes of action sought redress for

violations of Plaintiffs'-Appellants' rights under the Liberty Clause of the

California Constitution (Count Seven), violations of the Equal Protection Clause of

the California Constitution. Id.

On the Defendants’-Appellees’ motions to dismiss, the District Court,

applying a heretofore unauthorized, heightened pleading standard, granted the

Plaintiffs-Appellants sued to vindicate federal civil rights, including

important and supremely precious First and Fourteenth Amendment rights.