uplift law, p.c

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-1- Case No. _____________ COMPLAINT

Melissa G. Fulgencio (CBN 277663) E-mail: [email protected] UPLIFT LAW, P.C. 650 North Rose Drive, Suite 620 Placentia, California 92870 Telephone: 714.248.5612 Facsimile: 714.582.3990 ATTORNEY FOR PLAINTIFFS Metroflex Oceanside LLC; etc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

METROFLEX OCEANSIDE LLC, a California limited liability company; BOULEVARD FITNESS LLC, a California limited liability company; DEADWEIGHT STRENGTH INC., a California corporation; CONVOY STRENGTH, LLC, a California limited liability company; MJT LLC, a California limited liability company; BEING FIT OF MIRA MESA INC., a California corporation; BEING FIT, INC., a California corporation; and RAMONA FITNESS CENTER, LLC, a California limited liability,

Plaintiffs,

v.

GAVIN NEWSOM, in his official capacity as Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SANDRA SHREWY, MPH, MSW in her official capacity as the Director and State Public Health Officer; KEVIN FAULCONER, in his official capacity as Mayor of the City of San Diego; PETER WEISS, in his official capacity as Mayor of the City of Oceanside; SERGE DEDINA, in his official capacity as Mayor of the City of Imperial Beach; DONNA FRYE, in her official capacity as Mayor of the City of Clairemont; NICK MACCHIONE, in his

Case No.

COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND DAMAGES

'20CV2110 AGSCAB

Case 3:20-cv-02110-CAB-AGS Document 1 Filed 10/27/20 PageID.1 of 32

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-2- COMPLAINT

official capacity as Director of the County of San Diego Health and Human Services Agency; WILMA WOOTEN, MD, in her official capacity as San Diego County Public Health Officer; MARA W. ELLIOTT, in her official capacity as San Diego City Attorney; WILLIAM D. GORE, in his official capacity as San Diego County Sheriff; DAVID NISLEIT, in his official capacity as San Diego Chief of Police; SUMMER STEPHAN, in her official capacity as San Diego County District Attorney; GREG COX, in his official capacity as a San Diego County Supervisor; DIANNE JACOB, in her official capacity as a San Diego County Supervisor; KRISTIN GASPAR, in her official capacity as an San Diego County Supervisor; NATHAN FLETCHER, in his official capacity as a San Diego County Supervisor; JIM DESMOND, in his official capacity as a San Diego County Supervisor; and DOES 1 through 100,

Defendants.

Plaintiffs Metroflex Oceanside, LLC, a California limited liability company;

Boulevard Fitness LLC, a California limited liability company; Deadweight Strength,

Inc., a California corporation; Convoy Strength, LLC, a California limited liability

company; Imperial Beach Fitness, LLC, a California limited liability company; Being

Fit of Mira Mesa, Inc., a California corporation; Being Fit, Inc., a California

corporation; and Ramona Fitness Center, a California limited liability (hereinafter

collectively referred to as “Plaintiffs”), by and through their attorneys of record, Uplift

Law, P.C., allege claims against the above-named Defendants Gavin Newsom, in his

official capacity as Governor of California; Xavier Becerra, in his official capacity as

Attorney General of California; Sonia Y. Angel, MD, MPH, in her official capacity as

the Director and State Public Health Officer; Kevin Faulconer, in his official capacity

as Mayor of the City of San Diego; Peter Weiss, in his official capacity as Mayor of

the City of Oceanside; Serge Dedina, in his official capacity as Mayor of the City of


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Imperial Beach; Donna Frye, in her official capacity as Mayor of the City of

Clairemont; Nick Macchione, in his official capacity as Director of the County of San

Diego Health and Human Services Agency; Wilma Wooten, in her official capacity as

San Diego County Public Health Officer; Mara W. Elliott, in her official capacity as

San Diego City Attorney; William D. Gore, in his official capacity as San Diego

County Sheriff; David Nisleit, in his official capacity as San Diego Chief of Police;

Summer Stephan, in her official capacity as San Diego County District Attorney; Greg

Cox, in his official capacity as a San Diego County Supervisor; Dianne Jacob, in her

official capacity as a San Diego County Supervisor; Kristin Gaspar, in her official

capacity as an San Diego County Supervisor; Nathan Fletcher, in his official capacity

as a San Diego County Supervisor; Jim Desmond, in his official capacity as a San

Diego County Supervisor; and DOES 1 through 100 (hereinafter collectively referred

to as “Defendants”) as follows:

NATURE OF THE ACTION

1. Following the outbreak and subsequent global pandemic regarding the

novel coronavirus, the State of California began taking purported emergency measures

in an effort to slow the spread of COVID-19 such that the medical infrastructure in place

is not overwhelmed.

2. The sovereign people of the State of California have graciously endured

an unprecedented suspension of their civil liberties.

3. However, all government power in this country, no matter how well-

intentioned, derives only from the state and federal constitutions. Governmental power

cannot be exercised in conflict with the constitution, even in a pandemic. The

Constitution is not suspended when the government declares a state of disaster. See In

Re Salon A La Mode, Et Al., No. 20-0340 (Tex. May 5, 2020) (citing In Re Abbott, No.

20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020).

4. As COVID-19 spread, local officials scrambled to implement a myriad of

measures purporting to protect Californians. California’s Governor issued Executive


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-4- COMPLAINT

Orders to establish state-wide regulations, which were also implemented and enforced

on the county and city level.

5. Plaintiffs have filed this Action in an effort to challenge the

constitutionality of Defendants’ Orders that severely limit Plaintiffs’ civil rights and

liberties by ordering the citizens of the State of California “shelter-in-place” and

effectively close any businesses Defendants have arbitrarily deemed “Non-Essential.”

6. Defendants’ Orders have violated, and continue to violate, Plaintiffs’ rights

under both the California Constitution, as well as the United States Constitution. As a

result of Defendants’ unlawful violations of Plaintiffs’ civil liberties and rights,

Defendants have also caused severe economic damage to Plaintiffs. The economic

damages suffered by Plaintiffs is such that Plaintiffs may never financially recover from

the harm

7. Accordingly, Plaintiffs have filed this Action seeking: 1) equitable and

injunctive relief to enjoin enforcement of Defendants’ Orders; 2) declaratory relief that

Defendants’ Orders violate Plaintiffs’ civil rights under: a) U.S.C. § 1983 of the Federal

Civil Rights Act; b) the Due Process Clause of the Fifth Amendments; c) the Due

Process Clause of the Fourteenth Amendments; and c) Article 1, Sections 1, 7, and 19

of the California Constitution; 3) attorneys’ fees and costs incurred by Plaintiffs’ in an

amount according to proof; 4) monetary damages; and 5) such other and further relief

as this Court deems just and appropriate.

THE PARTIES

Plaintiffs

8. Plaintiff Metroflex Oceanside LLC is a California limited liability

company authorized and doing business in the State of California as Metroflex

Oceanside (“Metro”). Metro’s principal place of business is located in Oceanside, San

Diego County, California.

9. Plaintiff Boulevard Fitness LLC is a California limited liability company

authorized and doing business in the State of California as Boulevard Fitness


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-5- COMPLAINT

(“Boulevard”). Boulevard’s principal place of business is located in San Diego, San


10. Plaintiff Deadweight Strength Inc. is a California corporation authorized

and doing business in the State of California as Deadweight Strength (“Deadweight”).

Deadweight’s principal place of business is located in San Diego, San Diego County,

California.

11. Plaintiff Convoy Strength, LLC is a California limited liability company

authorized and doing business in the State of California as Convoy Strength (“Convoy

Strength”). Convoy Strength’s principal place of business is located in San Diego, San


12. Plaintiff MJT, LLC is a California limited liability company authorized

and doing business in the State of California as IB Fitness (“MJT”). MJT’S principal

place of business is located in Imperial Beach, San Diego County, California.

13. Plaintiff Being Fit of Mira Mesa, Inc. is a California corporation authorized

and doing business in the State of California as Being Fit Fitness Center (“Being Fit”).

Being Fit’s principal place of business is located in Mira Mesa, San Diego County,

California.

14. Plaintiff Being Fit, Inc. is a California corporation authorized and doing

business in the State of California as Being Fit Clairemont (“Being Fit Clairemont”).

Being Fit Clairemont’s principal place of business is located in Clairemont, San Diego

County, California.

15. Plaintiff Ramona Fitness Center, LLC is a California limited liability

company authorized and doing business in the State of California as Ramona Fitness

(“Ramona Fitness”). Ramona Fitness’ principal place of business is located in Ramona,

San Diego County, California.

Defendants

16. Defendant Governor Gavin Newsom (“Newsom” or “Governor”)) is made

a party to this Action in his official capacity as the Governor of the State of California.


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-6- COMPLAINT

The California Constitution vests the “supreme executive power of the State” in the

Governor, who “shall see that the law is faithfully executed.” Cal. Const. Art. V, § 1.

Governor Newsom signed Executive Order N-33-20 (the “Executive Order”) on or

about March 17, 2020.

17. Defendant Xavier Becerra (“Becerra”) is made a party to this Action in his

official capacity as the Attorney General of California. Under California law, Becerra

is the chief law enforcement officer with supervision over all sheriffs in the State of

California. Cal. Const. Art. V, § 13.

18. Defendant Sandra Shrewy, MPH, MSW (“Shrewy”) is made a party to this

Action in her official capacity as the Director and State Public Health Officer and is

sued in her official capacity pursuant to Ex Parte Young to challenge the

constitutionality of her office’s list of “Essential Critical Infrastructure Workers” which

was issued by Shrewy on March 22, 2020 to complement Newsom’s Executive Order.

19. Defendant Kevin Faulconer (“Faulconer”) is made a party to this Action

in his official capacity as the Mayor of San Diego in the State of California. Faulconer

is sued in his official capacity under the rule of Ex Parte Young to enjoin the

enforcement of any Order, instituted to shut down all “Non-Essential” businesses.

20. Defendant Peter Weiss (“Weiss”) is made a party to this Action in his

official capacity as the Mayor of Oceanside in the State of California. Weiss is sued in

his official capacity under the rule of Ex Parte Young to enjoin the enforcement of any

Order, instituted to shut down all “Non-Essential” businesses.

21. Defendant Serge Dedina (“Dedina”) is made a party to this Action in his

official capacity as the Mayor of Imperial Beach in the State of California. Dedina is

sued in his official capacity under the rule of Ex Parte Young to enjoin the enforcement

of any Order, instituted to shut down all “Non-Essential” businesses.

22. Defendant Donna Frye (“Frye”) is made a party to this Action in her

official capacity as the Mayor of Clairemont in the State of California. Frye is sued in


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-7- COMPLAINT

her official capacity under the rule of Ex Parte Young to enjoin the enforcement of any

Order, instituted to shut down all “Non-Essential” businesses.

23. Defendant Nick Macchione (“Macchione”) is made a party to this Action

in his official capacity as the Director of the County of San Diego Health and Human

Services Agency in the State of California. Macchione is sued in his official capacity

under the rule of Ex Parte Young to enjoin the enforcement of any Order, instituted to

shut down all “Non-Essential” businesses.

24. Defendant Wilma Wooten, MD (“Wooten”) is made a party to this Action

in her official capacity as the San Diego County Public Health Officer. Wooten is sued

in her official capacity under the rule of Ex Parte Young to enjoin the enforcement of

any Order, instituted to shut down all “Non-Essential” businesses.

25. Defendant Mara Elliott (“Elliott”) is made a party to this Action in her

official capacity as the San Diego City Attorney. Elliott is sued in her official capacity

under the rule of Ex Parte Young to enjoin the enforcement of any Order, instituted to

shut down all “Non-Essential” businesses.

26. Defendant William D. Gore (“Gore”) is made a party to this Action in his

official capacity as San Diego County Sheriff. Under California law, Gore has the

responsibility to enforce the San Diego County Order in San Diego County. See Cal.

Gov’t Code § 26601.

27. Defendant David Nisleit (“Nisleit”) is made a party to this Action in his

official capacity as San Diego Chief of Police. Under California law, Nisleit has the

responsibility to enforce the San Diego County Order in San Diego County. See Cal.

Gov’t Code § 26601.

28. Defendant Summer Stephan (“Stephan”) is made a party to this Action in

her official capacity as the San Diego District Attorney. Under California law, Stephan

has the responsibility to enforce the San Diego County Order in San Diego County. See

Cal. Gov’t Code § 26601.


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-8- COMPLAINT

29. Defendant Greg Cox is made a party to this Action in his official capacity

as a member of the San Diego County Board of Supervisors, which exercises broad

legislative, executive, and quasi-judicial authority under California law, including the

supervision of the county sheriff and public health officials. See, e.g., Cal. Gov’t Code

§§ 25000, et seq.; Cal. Health & Safety Code § 101000.

30. Defendant Dianne Jacob is made a party to this Action in her official

capacity as a member of the San Diego County Board of Supervisors, which exercises

broad legislative, executive, and quasi-judicial authority under California law, including

the supervision of the county sheriff and public health officials. See, e.g., Cal. Gov’t

Code §§ 25000, et seq.; Cal. Health & Safety Code § 101000.

31. Defendant Kristin Gaspar is made a party to this Action in her official





32. Defendant Nathan Fletcher is made a party to this Action in his official





33. Defendant Jim Desmond is made a party to this Action in his official





34. The true names and capacities, whether individual, corporate, associate, or

otherwise, of Defendants DOES 1 through 100, are unknown to Plaintiffs, who

therefore sue said Defendants by such fictitious names. Plaintiffs are informed and


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-9- COMPLAINT

believe and thereon allege that each of the Defendants designated herein as a DOE is

responsible in some manner for the events and happenings herein referred to. As such,

Plaintiffs will seek leave of Court to amend this Complaint to insert the true names and

capacities of said Defendant as they become identified.

35. As alleged herein, Defendants are responsible for the implementation of

various Executive Order(s) and other Civil Orders (“Orders”) that are in direct violation

of the United States and California Constitutions, including but not limited to, 42 U.S.C.

§ 1983. Accordingly, each and every Defendant acted under color of state law with

respect to all acts or omissions herein alleged.

JURISDICTION AND VENUE

36. The Court has subject matter jurisdiction over the claims asserted in this

action based upon Federal Question Jurisdiction pursuant to 28 U.S.C. §§ 1331 and

1343 because this action involves rights derived from the United States Constitution

and because the action seeks to prevent Defendants from interfering with federal rights.

This Court has authority to award the requested declaratory relief under 28 U.S.C. §

2201; the requested injunctive relief and damages under 28 U.S.C. § 1343(a); and

attorneys’ fees and costs under 42 U.S.C. § 1988.

37. Furthermore, this is, in part, a civil action under 42 U.S.C. § 1983 seeking

damages and injunctive relief against Defendants for committing acts, under color of

law, with the intent and for the purpose of depriving Plaintiffs of rights secured under

the Constitution and laws of the United States, as well as for refusing or neglecting to

prevent such deprivations and denials to Plaintiffs.

38. Additionally, this action arises under 42 U.S.C. § 1983 in relation to

Defendants’ deprivation of Plaintiffs’ Constitutional rights to Due Process and Equal

Protection under the Fifth and Fourteenth Amendments to the United States

Constitution.

39. Jurisdiction is also appropriate in this Court pursuant to 28 U.S.C. §

1343(a)(3)–(4) to redress the deprivation, under color of any State law, statute,


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ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by

the Constitution, and to secure equitable or other relief under any Act of Congress

providing for the protection of civil rights.

40. This Court has supplemental jurisdiction over Plaintiffs’ state law claims

pursuant to 28 U.S.C. § 1367(a) because Plaintiffs’ state claims are so related to their

federal claims such that they are part of the same case and controversy of those federal

claims described herein under Article III of the United States Constitution.

41. The U.S. District Court for the Southern District of California is the

appropriate venue for this action pursuant to 28 U.S.C. § 1391(b)(1) and (2) because it

is the District in which Defendants either maintain offices or do substantial official

government work; the District in which Defendants exercise authority in their official

capacities; and the District in which Defendants will continue to enforce the Orders and

Emergency Directives that are the basis for Plaintiffs’ claims; and the District in which

substantially all of the events occurred that have given rise to Plaintiffs’ claims.

42. There is a present and actual controversy between and among Plaintiffs

and Defendants.

43. The relief requested is authorized pursuant to 28 U.S.C. §§ 2201 and 2202

(declaratory judgment); 28 U.S.C. § 1651(a) (injunctive relief); 42 U.S.C. § 1988 (right

to costs, including attorneys’ fees); and Cal. Gov’t. Code § 8572 (restitution for state

commandeering of private or personal property during state of emergency).

SUBSTANTIVE ALLEGATIONS

I. THE GOVERNOR’S STAY-AT-HOME ORDER

44. On March 4, 2020, California Governor Gavin Newsom (“Newsom”)

declared a state of emergency to exist in California in light of the COVID-19 pandemic.

A true and correct copy of Defendant Newsom’s Proclamation of a State of Emergency

is attached hereto and incorporated herein as Exhibit 1.

45. On or about March 13, 2020, President Donald J. Trump proclaimed a

National State of Emergency as a result of the threat of the emergence of COVID-19.


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https://www.whitehouse.gov/presidential-actions/proclamation-declaringnational-

emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.

46. Subsequently, on March 19, 2020, Defendant Newsom signed Executive

Order N-33-20 (the “Executive Order”). The Executive Order directed all residents “to

immediately heed the current State public health directives,” including an order of the

state public health officer reprinted in the Executive Order. A true and correct copy of

Defendant Newsom’s Executive Order N-33-20 is attached hereto and incorporated

herein as Exhibit 2.

47. The Executive Order “order[ed] 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 sector as outlined at

https://www.cisa.gov/identifying- critical- infrastructure-during-covid-19.”

48. The Executive Order further explained that “[t]he federal government has

identified sixteen (16) critical infrastructure sectors whose assets, systems, and

networks, whether physical or virtual, are considered so vital to the United States that

their incapacitation or destruction would have a debilitating effect on security,

economic security, public health or safety, or any combination thereof.” Defendant

Newsom therefore “order[ed] that Californians working in these 16 critical

infrastructure sectors may continue their work because of the importance of these

sectors to Californians’ health and well-being.”

49. The Executive Order explained that it aimed “to establish consistency

across the state in order to ensure that we mitigate the impact of COVID-19.”

50. This March 19, 2020 Executive Order sought to balance the need to protect

Californians from infection against the need to maintain Californians’ access to vital

supplies and services. In so doing, Defendant Newsom based the policy on one issue:

the federal government’s characterization of certain businesses as being a part of the

“critical infrastructure” and therefore “essential” to Californians. Thus, those businesses


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deemed “essential” were and are allowed to continue operating as part of California’s

coordinated response to COVID-19.

51. All other businesses, such as Plaintiffs, who did not fall into any of the

sixteen (16) “critical infrastructure” sectors, were automatically defined as “Non-

Essential” and were forced to immediately cease operations.

52. The Executive Order was clear that it was not establishing a state-level

baseline inviting county innovation above and beyond a minimum; rather, this

Executive Order intended that only certain essential businesses shall be permitted to

remain open statewide to provide essential goods and services to all Californians.

53. The Public Health Officers (“PHO”) for each county were, in part, tasked

with implementing these overreaching orders. It became clear very early on that the

PHOs were completely out of their depth. PHOs had been given a vast amount of power

that they were incompetent to wield. Unlike the Governor, PHOs are not elected

positions. In fact, PHOs, some of whom are tasked with the public health of millions,

do not require a degree in science or medicine.

54. Defendants Macchione and Wooten issued similar “shelter-in-place,”

“stay at home,” and “shut down” orders (the “County Orders”) for all “Non-Essential”

businesses on or about March 17, 2020 for the County of San Diego. True and correct

copies of these County Orders are attached hereto as Exhibit 3.

55. Since the passage of the County Orders, Defendants Gore and Nisleit have

sought to vigorously enforce them against Plaintiffs and other “Non-Essential”

businesses.

56. Additionally, on or about March 22, 2020, Defendant Shrewy issued a

comprehensive directive setting forth the types of “Essential Critical Infrastructure

Workers” that were to “help state, local, tribal and industry partners as they work to

protect communities, while ensuring continuity of functions critical to public health and

safety, as well as economic and national security.”


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57. Altogether, Defendants’ Orders have caused widespread and catastrophic

damage to the California economy through the government-mandated closure of

Plaintiffs’ businesses.

58. As a result of Defendants’ Orders mandating closure, Plaintiffs have had

difficulty in satisfying their financial obligations, having been forced to lay off a

significant number of employees.

59. Plaintiffs have further expended large sums of money in an effort to

comply with Defendants’ vague Orders.

60. On numerous occasions, Plaintiffs have sought clarification regarding

Defendants’ Orders and apparently arbitrary or selective enforcement thereof, to no

avail.

61. The county level orders that were promulgated in response to the

Governor’s Order were haphazard, at best, leaving California with a patchwork of

entirely different laws for each county. Counties were unable to agree even upon the

simplest issues, such as indoor and/or outdoor mask wearing, or the use of gloves.

62. Further, upon information and belief, despite repeated requests by media

and the press, the scientific data that Defendants relied upon in promulgating their

orders has never been disclosed. As early as March and April 2020, the press began

requesting information under California’s Public Records Act. To date, no responses

have been provided.

63. Moreover, Defendants have asserted that violations of their orders carry

criminal penalties, threatening jail time and significant fines for businesses and

individuals that do not comply.

64. Defendants’ Orders violate the Due Process Clause of the Fourteenth

Amendment because they fail to give reasonable notice to persons of ordinary

intelligence of what actions are forbidden under the law. Plaintiffs have been forced to

operate between a rock and a hard place, trying to comply with all of the applicable

Orders, but unable to discern what the applicable law permits. This is precisely the


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dilemma the Due Process Clause’s requirement of fair notice seeks to avoid, particularly

where, as here, there is no procedure for Plaintiffs even to challenge the Defendants’

Orders.

65. Defendant Newsom then directed the Office of Emergency Services to

“take all necessary steps to ensure compliance with this Order” and that the “Order shall

be enforceable pursuant to California law, including, but not limited to, Government

Code section 8665.”

66. California Government Code Section 8665 states, “Any person who

violates any of the provisions of this chapter or who refuses or willfully neglects to obey

any lawful order or regulation promulgated or issued as provided in this chapter, shall

be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine

not to exceed one thousand dollars ($1,000) or by imprisonment not to exceed six

months or by both such fine and imprisonment.”

II. THE GOVERNOR’S REOPENING ORDER

67. On May 4, 2020, Governor Newsom issued Executive Order N-60-20

concerning the second and third stages of California’s “four-stage framework . . . to

allow Californians to gradually resume various activities” (“The Governor’s

Reopening Order”). The Governor’s Reopening Order directed the State Public Health

Officer to “establish criteria and procedures. . . to determine whether and how

particular local jurisdictions may implement public health measures that depart from

the statewide directives,” specifically “measures less restrictive than any public health

measures implemented on a statewide basis.” A true and correct copy of Defendant

Newsom’s Executive Order N-60-20 is attached hereto and incorporated by reference

as Exhibit 4.

68. The Governor’s Reopening Order also states that it should not be

“construed to limit the existing authority of local health officers” to adopt “more

restrictive” or “addition[al]” measures” (emphasis added). Under existing law, “[a]

county or city may make and enforce within its limits all local, police, sanitary, and


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other ordinances and regulations not in conflict with general laws.” Cal. Const. art. XI,

§ 7 (emphasis added).

69. And when, as here, the Governor exercises the State’s “police power”

during a state of emergency, the Governor’s “orders and regulations shall have the

force and effect of law.” Cal. Gov’t Code §§ 8567, 8627. Accordingly, the Governor’s

Reopening Order only allows counties to act within their “existing authority”—that is,

to adopt measures that are consistent with the Governor’s orders or that address matters

on which the Governor’s orders are silent. It does not, and cannot be read to, allow a

county to override the Governor’s Order by extending its authority by extending its

authority to include criminal penalties and possible imprisonment.

IV. PLAINTIFFS’ GYM BUSINESSES

Metro

70. Plaintiff Metro operates a gym in Oceanside, California, which is in San

Diego County.

71. Metro specializes in holistic wellness, specifically focusing on nutrition,

diet, physical therapy, retail, and personal training.

72. Metro addresses its patrons’ physical health by offering personalized diet

plans, meal preparation services, sports supplements, personal training, and physical

therapy services.

73. Additionally, Metro, in taking a holistic approach to wellness, also offers

counseling for the general public, emphasizing suicide prevention and catering to

combat-injured veterans struggling with Posttraumatic Stress Disorder and

74. On or about March 19, 2020, Defendant Newsom issued Executive Order

N-33-20, ordering all “non-essential” businesses, including gyms, to close indefinitely

in response to the COVID-19 pandemic.

75. Executive Order N-33-20 stated that this closure was a temporary, two-

week closure to alleviate the stress on hospitals and intensive care units (“ICUs”) from

a major influx of COVID-19 patients.


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76. Metro complied with Executive Order N-33-20 and remained closed as

Defendant Newsom extended the closure through May 1, 2020.

77. On May 1, 2020, Defendant Newsom extended application of Executive

Order N-33-20 and the closure of “non-essential” businesses indefinitely.

78. Metro hired virologists to evaluate its facility and took every necessary

precaution to protect its patrons and the community, investing thousands of dollars in

sanitation equipment, disinfectant protocols, and structural improvements to increase

the air flow in the facility.

79. Despite Metro’s good faith attempts to exceed those precautions imposed

on so-called “essential” businesses, Metro was unable to confirm their ability to operate

due to Executive Order N-33-20.

80. Metro temporarily suspended its membership dues and collected no

revenue during the time it remained close in accordance with Executive Order N-33-20.

81. Metro, in light of its inability to secure additional financing and lack of

revenue, had no choice but to open for business on or about May 8, 2020.

82. In response to Metro’s opening, the Oceanside Police Department arrested

Mr. Uridel, owner of Metro, for opening the business in alleged violation of Executive

Order N-33-20.

83. The Oceanside Police further threatened to arrest everyone who remained

in the Metro building.

84. Metro again closed after Mr. Uridel’s arrest and reopened on May 13,

2020.

85. Throughout this reopening period, Metro is not aware of any patrons

having reported contracting COVID-19 from Metro.

86. On June 12, 2020, the County allowed gyms and fitness centers to reopen

again. Mr. Uridel diligently followed all sanitation and cleaning protocols but was

forced to once again restructure a month later when the state ordered his business to

close with modifications to operate only outdoors.


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87. Metro has invested thousands into creating an outdoor area so its patrons

could exercise. Despite fully complying with the orders to modify operations outdoors,

the Oceanside Police Department continually came by to alert Metro of its alleged

violations.

88. Metro has restructured its facility numerous times to satisfy the continually

changing state and county orders, despite being given little to no guidance on how to

operate in compliance.

89. Metro estimates that it has been damaged in the amount of approximately

$16,000 in mandatory restructuring caused by the coronavirus pandemic, including

training employees on new COVID-19 procedures, legal consultations, citations,

purchases of personal protective equipment, cleaning supplies, and facility upgrades.

90. Metro further estimates an an additional $16,000 in lost revenue from the

mandatory closures as a “Non-Essential” business.

Boulevard

91. Shawn Gilbert is the owner of Boulevard Fitness, a business operation

specializing in whole body wellness for all members by offering services for physical,

mental, and nutrition guidance.

92. Boulevard takes pride in helping its members with their whole body

needs, such as weight management, strength building, injury, rehabilitation, and

suicide prevention.

93. Boulevard is located in a 15,000 square foot facility that boasts a two-

story open-air plan with large bay doors and roll-up windows open from floor to

ceiling, a roof with built-in fans promoting constant air circulation through the facility,

a physical therapy

room, and additional outdoor workout area.

94. Boulevard shuttered its facility for approximately three months in

compliance with the first shutdown order, and in the meantime prepared for the

potential of reopening, investing thousands of dollars toward cleaning equipment and


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supplies, signage, personal protective equipment, and training staff in new policies for

safety and cleanliness.

95. Additionally, during the time in which Boulevard remained close, it

suspended payment of membership dues and collected no revenue.

96. Finally, on June 12, 2020, the San Diego County of Public Health

announced

gyms could finally reopen.

97. At such time, Boulevard diligently followed all state and county

sanitation protocols. However, one month later, Defendants again placed limitations

on Boulevard’s business operations.

98. In an attempt to comply, Boulevard moved its equipment outdoors, yet

Defendants constantly advised Boulevard that it failed to satisfy Defendants’ COVID-

19 protocols all the while failing to articulate any specific manner in which Boulevard

failed to comply.

99. Boulevard is informed and believes, and based thereon alleges, that

neighboring businesses, such as strip clubs and hookah lounges, remained open

without similar harassment from Defendants.

100. Boulevard Fitness estimates that it has been damaged in the amount of

approximately $50,000 as a result of training employees on new COVID-19

procedures, legal consultations, citations, purchases of personal protective equipment,

cleaning supplies, and facility upgrades.

Deadweight

101. Deadweight occupies a two thousand (2,000) square foot facility located

in a warehouse with rollup doors, situated along a dead-end alley in San Diego’s

Grantville neighborhood.

102. During the shutdown, Defendants made daily visits to Deadweight’s

facilities.


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103. On a handful of occasions, San Diego County Sheriff’s Department

and/or San Diego Police blocked the alley entrance to Deadweight, thereby

preventing the free flow of traffic to and from Deadweight.

104. On numerous occasions, Defendants San Diego County Sheriff’s

Department and/or San Diego Police questioned any persons leaving Deadweight and

threatened citations.

105. The Deadweight facility has three (3) large roll-up doors and four (4)

large commercial fans.

106. Despite the fans and open-air aspect of the Deadweight facility,

Deadweight may not operate under Defendants’ arbitrary Orders because the facility

is technicaly under a roof.

Convoy Strength

107. Convoy Strength, a powerlifting and strength gym located in San Diego,

California opened on or about February 1, 2020, as a relocation and expansion of the

original Convoy Strength.

108. Convoy Strength sanitized its entire facility and updated its floorplan to

allow for social distancing. Additionally, new signs and protocols were placed

throughout the Convoy Strenght facility.

109. To prioritize member safety, Convoy Strength hired a dedicated

sanitizing crew, suspended guest passes, and implemented a scheduling system for

members to stagger their workout times.

110. Convoy Strength also limited member occupancy to ten percent (10%) to

maximize air flow and safety.

111. When gyms were officially allowed to reopen again on June 12, 2020,

Convoy Strength maintained the same strict cleaning protocols to ensure the safety of

his members.

112. Unfortunately, Convoy Strength’s operations came to a halt again on July

13, 2020, as the state ordered that gyms may only operate outdoors.


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113. To date, Convoy Strength has suffered damages in the amount of

approximately $142,000 for its loss of business revenue and mandatory investments to

remain compliant with the state and county orders, including training new employees

on the COVID-19 procedures, legal consultations, dedicated cleaning crews, and

purchases for protective and cleaning equipment.

MJT

114. MJT is a large, 13,000 square foot beachside fitness facility that caters to

all anyone who want to improve their fitness, regardless of age or body type. In addition

to fitness classes, MJT has individualized workout plans, nutritional guides, and

childcare.

115. Following Defendants’ Order mandating the closure of “Non-Essential”

businesses, MJT closed.

116. Unable to provide its members with concrete responses regarding

reopening, IB Fitness’ members began canceling their memberships.

117. While MJT remained closed, MJT suspended membership fees and

collected no dues throughout its closure.

118. When, pursuant to Defendants’ Orders, MJT was allowed to reopen with

limitations, MJT took precautions as required by Defendants’ Orders.

119. Despite MJT’S good faith efforts to comply with Defendants’ Orders,

Defendants, by and through the San Diego County Sheriff’s Department or San Diego

Police Department, harassed MJT and its patrons, claiming that MJT somehow failed

to comply with Defendants’ Orders. At no point did Defendants identify or

communicate to MJT with specificity how MJT was allegedly in non-compliance with

Defendants’ Orders.

120. As a direct and proximate result of Defendants’ Orders, MJT has suffered

damages in the amount of approximately $102,000 as a result of hiring extra staff

members, training employees in new COVID-19 procedures, legal consultations,


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citations, movers, security to patrol outdoor gym equipment, cleaning supplies, and

other upgrades to MJT’S facility.

///

Being Fit

121. Being Fit is a well-respected fitness conglomeration in the Mira Mesa

neighborhood of San Diego, California that has offered the community health and

fitness options for over twenty-five years, including, among other things, group classes,

personal training, outdoor group exercises.

122. Being Fit generated no revenue during said the shut down and collected

no dues from its members, as it was unfair to charge its members for a facility and

services they could not use.

123. During the mandatory closure of allegedly “Non-Essential” businesses,

Being Fit’s revenue dropped from approximately $31,000 per month to $0 per month,

all while continuing to incur expenses.

124. As a result of Defendants’ Orders, Being Fit has been damaged in the

amount of approximately $1,000,000 for hiring and training employees on the new

COVID-19 procedures, legal consultations, outdoor equipment, sanitation equipment,

personal protective equipment, and professional cleaning services.

Being Fit Clairemont.

125. Being Fit Clairemont is a fitness facility located in Clairemont, California

in San Diego County that offers a multitude of programs aimed at improving

cardiovascular health, such as circuit training, Zumba classes, and High Intensity

Interval Training (HIIT) classes.

126. During the approximately shutdown, Being Fit Claremont invested heavily

into developing COVID-19 safety protocol, as well as the procurement of personal

protection equipment for employees.

127. As a result of Defendants’ Orders both closing “Non-Essential” businesses

and limiting the operations of “Non-Essential” businesses, Being Fit Claremont has


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been damaged in the amount of approximately $98,000, consisting of added costs of

employee training on COVID-19 procedures; legal consultations; cleaning supplies, and

lost revenue.

Ramona Fitness

128. Following Defendant Newsom’s Order, Ramona Fitness closed for

approximately eighty-five (85) days, during which time it lost approximately $250,000.

129. Plaintiff Ramona Fitness is informed and believes, and based thereon

alleges, that the San Diego District Attorney’s Office and/or San Diego County Sheriff’s

Department further targeted Ramona Fitness as the first business to be charged with

five (5) misdemeanors for allegedly remaining open as a “non-essential” business. Such

allegations have cost Ramona Fitness not only monetarily in requiring Ramona Fitness

to defend against such claims, but also as negatively affecting Ramona Fitness’

reputation in the community.

130. Ramona Fitness was also considered one of Southern California’s top

senior, silver sneaker facilities, meaning insurance companies previously paid Ramona

Fitness to host daily senior fitness classes.

FIRST CLAIM FOR RELIEF

VIOLATION OF THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT

(By Plaintiffs against All Defendants)

131. Plaintiffs incorporate by reference and re-allege each and every allegation

set forth in all preceding paragraphs as if fully set forth herein.

132. The United States Supreme Court has long held that “the Fifth

Amendment…was designed to bar Government from forcing people alone to bear

public burdens which, in all fairness and justice, should be borne by the public as a

whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

133. Defendants’ Orders and Emergency Directives mandated that because

Plaintiffs were “Non-Essential” businesses, they were required to shutter and cease all

operations as a means to slow the spread of the novel COVID-19. Such a mandate


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completely and unconstitutionally deprived Plaintiffs of all economically beneficial use

of their businesses without just compensation.

134. Although a sovereign government has an inherent “police power” that is

reserved for the States by the Tenth Amendment to the United States Constitution, such

“police power” is not without Constitutional limits. See Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926).

135. The government’s “police power” is restricted by Constitutional

considerations, including but not limited to the Fifth Amendments “Takings Clause.”

136. Defendants’ Orders, combined with Defendants’ enforcement thereof, has

caused a total or partial regulatory taking of Plaintiffs’ property without just

compensation in violation of the Takings Clause of the Fifth Amendment to the United

States Constitution. At a minimum, the effect of Defendants’ Orders constitute a

“partial” taking under the Penn Central three-factor test. See Penn Cent. Transp. Co. v.

City of New York, 438 U.S. 104, 124 (1978). As a result, Defendants’ violation of the

Takings Clause of the Fifth Amendment has proximately and legally harmed Plaintiffs.

137. Plaintiffs have no adequate remedy at law and will suffer serious and

irreparable harm to their Constitutional rights unless Defendants are enjoined from

implementing and enforcing the Orders and Emergency Directives, namely, the

financial harm Plaintiffs have suffered and continue to suffer as a result of Defendants’

unlawful Orders and Emergency Directives is such that Plaintiffs may be forced to

permanently close.

138. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

declaratory relief, as well as temporary, preliminary, and permanent injunctive relief

invalidating the Orders and Emergency Directives and restraining enforcement thereof.

139. Accordingly, Plaintiffs have found it necessary to engage the services of

private council to vindicate their rights under law and therefore are entitled to an award

of attorneys’ fees pursuant to 42 U.S.C. § 1988.

///


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///

SECOND CLAIM FOR RELIEF

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT




141. The Due Process Clause of the Fourteenth Amendment provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due process of

law.” The fundamental liberties protected by the Due Process Clause include most of

the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145,

147-149 (1968).

142. The liberties afforded by the Due Process Clause of the Fourteenth

Amendment further extend to one’s personal choices central to individual dignity and

autonomy, including intimate choices that relate to personal beliefs. See, e.g., Eisenstadt

v. Baird, 405 U.S. 438, 453 (1972).

143. A State “violates this guarantee by taking away someone’s life, liberty, or

property under a criminal law so vague that it fails to give ordinary people fair notice

of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”

Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).

144. Plaintiffs have a fundamental property interest in conducting lawful

business activities that are protected by the Due Process Clause of the Fourteenth

Amendment.

145. Defendants’ Orders fail to provide sufficient notice of which actions will

potentially subject Plaintiffs to civil or the criminal penalties. It would, at best, be

unclear to any person of ordinary intelligence what Defendants’ Orders collectively

prohibit and/or allow.


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146. In addition, Defendants’ Orders purport to impose criminal liability on

Plaintiffs and their employees should they fail to follow Defendants’ Orders. Moreover,

Defendants have, at times, threatened to impose criminal liability on Plaintiffs’ patrons.

147. The Executive Orders, and Defendants enforcement thereof, violate

Plaintiffs’ substantive due process rights secured by the Fourteenth Amendment to the

United States Constitution.

148. In addition, Defendant Counties have violated the Due Process Clause

insomuch as it fails to provide any meaningful procedure for challenging its

determination that a business is non-essential, either pre or post deprivation of

Plaintiffs’ constitutional right to use of their property. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 432-33 (1982). Instead, Defendants simply announced that Plaintiffs’

Gyms were not essential, without any formal process.

149. Defendants’ Orders expressly deprived, and continue to deprive, Plaintiffs

of their rights and liberties in lawfully operating their businesses by ordering the closure

of “Non-Essential” businesses without affording Plaintiffs with a constitutionally

adequate hearing to present their case in favor of allowing Plaintiffs’ businesses to

remain open.

150. Accordingly, Defendants failed to comply both procedural and substantive

due process requirements as provided for by the Fourteenth Amendment of the United

States Constitution when depriving Plaintiffs of their rights and liberties as they relate

to Plaintiffs’ respective properties / businesses, which would have given Plaintiffs a

meaningful opportunity to respond to the Executive Orders and explain how and why

the Executive Orders were unconstitutional as applied to Plaintiffs.

151. Because Defendants’ Orders are based upon a procedurally deficient and

substantively unlawful process, Defendants directly and proximately damaged

Plaintiffs by depriving Plaintiffs of their ability to lawfully operate their respective

businesses without unconstitutional government intervention.


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152. Defendants’ Orders that require Plaintiffs to abstain from conducting

lawful business in the State of California, violates Plaintiffs’ rights under the United

States Constitution.






permanently close.

154. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

declaratory relief and temporary, preliminary, and permanent injunctive relief

invalidating and restraining enforcement of the Orders.

155. Plaintiffs respectfully seek a declaration that the Defendant Counties’

Orders violates the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution.

THIRD CLAIM FOR RELIEF

VIOLATION OF THE CALIFORNIA CONSTITUTION

Right to Liberty (Cal. Const. Art. 1, § 1)




157. Article 1, § 1 of the California Constitution provides, in relevant part,

“Article 1, Section 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.”

158. Defendants Orders have interfered both with Plaintiffs’ rights and liberties,

as set forth in Article 1, Sections 1, 7, and 19 of the California Constitution, as well as

deprived Plaintiffs of the use, enjoyment, and ability to operate their respective


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businesses on account of a discriminatory and arbitrary classification as “Non-

Essential” businesses.

159. Defendants’ Orders have proximately and legally caused Plaintiffs’

financial harm, which will continue unless and until this Court enjoins Defendants from

enforcing their respective Orders.


lawful business in the State of California, violates Plaintiffs’ rights under the California

Constitution.






permanently close.



of attorneys’ fees pursuant to California Code of Civil Procedure § 1021.5.

FOURTH CLAIM FOR RELIEF

VIOLATION OF THE CALIFORNIA CONSTITUTION

Right to Liberty (Cal. Const. Art. 1, § 7)




164. Article 1, Section 7 of the California Constitution provides, in pertinent

part:

Article 1, Section 7: (a) A person may not be deprived of life, liberty, or property without

due process of law or denied equal protection of the laws; provided,


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that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

165. The guarantee of equal protection under the California Constitution is

substantially equivalent and analyzed similarly to that provided by the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution. See Kenneally

v. Med. Bd., 27 Cal. App. 4th 489 (App. 2 Dist. 1994).

166. Article 1, § 1 of the California Constitution has further been judicial

defined as meaning no person or class of persons shall be denied the same protections

of the laws enjoyed by other persons or other classes in like circumstances in the lives,

liberty, and property, and in their pursuit of happiness. See People v. Romo, 14 Cal.3d

189 (1975); Gray v. Whitmore, 17 Cal. App. 3d 1 (1971).


lawful business in the State of California, violates Plaintiffs’ rights under the California

Constitution.






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permanently close.



of attorneys’ fees pursuant to California Code of Civil Procedure § 1021.5.

FIFTH CLAIM FOR RELIEF

VIOLATION OF CALIFORNIA GOVERNMENT CODE § 8572

Commandeering Private Property or Personnel

(By Plaintiffs against Defendant Newsom)



171. The State of California’s Government Code, Title 2, Chapter 7, Article 3,

Section 8572, states in pertinent part:

In the exercise of the emergency powers hereby vested in him during a state of war emergency or state of emergency, the Governor is authorized to commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities hereby vested in him as Chief Executive of the state and the state shall pay the reasonable value thereof.

172. On March 4, 2020, Defendant Newsom declared a “State of Emergency”

in response to the threat of the spread of COVID-19 throughout California’s

communities.

173. Subsequently, on or about March 19, 2020, Defendant Newsom issued

Executive Order N-33-20. See Exhibit 2.

174. Executive Order N-33-20 states, in relevant part, that “all individuals

living in the State of California” “stay home or at their place of residence except as

needed to maintain continuity of operations of the federal critical infrastructure sectors

outlined at https://www.cisa.gov/identifying-criticalinfrastructure-during-covid-19.”


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175. Defendant Newsom’s Order further “identified 16 critical infrastructure

sectors (discussed herein) whose assets, systems, and networks, whether physical or

virtual, are considered so vital to the United States that their incapacitation or

destruction would have a debilitating effect on security, economic security, public

health or safety, or any combination thereof” such that Defendant Newsom ordered that

“Californians working in these 16 critical infrastructure sectors continue their work

because of the importance of these sectors to Californians’ health and well-being.”

176. Defendant Newsom’s Order continued, “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.”

177. Defendant Newsom then directed the Office of Emergency Services to

“take all necessary steps to ensure compliance with this Order” and that the “Order shall

be enforceable pursuant to California law, including, but not limited to, Government

Code section 8665.”

178. California Government Code Section 8665 states, “Any person who

violates any of the provisions of this chapter or who refuses or willfully neglects to obey

any lawful order or regulation promulgated or issued as provided in this chapter, shall

be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine

not to exceed one thousand dollars ($1,000) or by imprisonment not to exceed six

months or by both such fine and imprisonment.”

179. As a result of the issuance of the Governor’s Order, California businesses,

such as Plaintiffs, were not included in any of the sixteen (16) “critical infrastructure

sectors,” and therefore were “non-essential” and effectively ordered, under penalty of

fine and threat of imprisonment, to cease conducting any of their lawful daily business

activities.

180. By virtue of this Executive Order, Defendant Newsom commandeered and

utilized Plaintiffs’ businesses for the purpose of slowing the spread of COVID-19. To

date, however, the State of California has not paid Plaintiffs the “reasonable value


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thereof” in exchange for Defendant Newsom’s commandeering and utilization of

Plaintiffs’ “non-essential” businesses.

181. Plaintiffs have found it necessary to engage the service of counsel to

vindicate their rights under California Government Code Section 8572. Plaintiffs are

entitled to an award of attorneys’ fees and costs pursuant to California Code of Civil

Procedure Section 1021.5.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court:

A. Issue a declaratory judgment, pursuant to 28 U.S.C. § 2201 and Rule 57 of the

Federal Rules of Civil Procedure, that Defendants’ Orders listed above violate

the Due Process Clause as applied to Plaintiffs because they fail to provide

fair notice of what the law requires;

B. Set aside Defendants’ Orders; holding Defendants’ Orders to be unlawful;

C. Permanently enjoin Defendants and all persons and entities acting in concert

with Defendants, including but not limited to any law enforcement agencies,

from enforcing Defendants’ Orders;

D. Issue a Temporary Restraining Order and a preliminary injunction preventing

Defendants from enforcing or implementing their Orders until this Court rules

upon the merits of this lawsuit;

E. Permanently enjoin Defendants and all persons or entities acting in concert

with Defendants, including but not limited to any law enforcement agencies,

from enforcing the Orders;

F. Award damages arising out of their § 1983 Claims, and specifically under

the Fifth Amendment of the U.S. Constitution and Article 1, Section 19 of

the California Constitution’s Taking Clause(s);

G. Award Plaintiffs the reasonable value of the loss of the respective businesses

by virtue of Defendants’ Orders pursuant to California Government Code

Section 8572;


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H. Award reasonable attorneys’ fees and costs incurred in this action pursuant

to 42 U.S.C. § 1988 and Cal. Gov’t Code § 8572; and

I. Any other such relief as this Court may deem just and proper.

Dated: October 26, 2020 UPLIFT LAW, P.C.

By: Melissa G. Fulgencio Stephanie Beale Attorneys for Plaintiffs


JS 44 (Rev. 0 ) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

DEFENDANTS(a) PLAINTIFFS

County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation

Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations

153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 485 Telephone Consumer

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) Protection Act190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) 490 Cable/Sat TV195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 850 Securities/Commodities/196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) Exchange

362 Personal Injury - Product Liability 751 Family and Medical 890 Other Statutory Actions Medical Malpractice Leave Act 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS 893 Environmental Matters210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 895 Freedom of Information220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) Act230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party 896 Arbitration240 Torts to Land 443 Housing/ Sentence 26 USC 7609 899 Administrative Procedure245 Tort Product Liability Accommodations 530 General Act/Review or Appeal of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION Agency Decision

Employment Other: 462 Naturalization Application 950 Constitutionality of446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration State Statutes

Other 550 Civil Rights Actions448 Education 555 Prison Condition

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court4 Reinstated or

Reopened 5 Transferred from

Another District(specify)

6 MultidistrictLitigation -Transfer

8 Multidistrict Litigation - Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Governor of California, GAVIN NEWSOM; Attorney General of California, XAVIER BECERRA, et al. (See Attachment A)

San Diego Sacramento

Melissa G. Fulgencio, Uplift Law, PC 650 N. Rose Drive, Ste. 620 Placentia, CA 92870 (714) 248-5612

28 U.S.C. §§ 2201 and 2202; 28 U.S.C. § 1651(a); and 42 U.S.C. § 1988

Relief from executive orders improperly closing gyms and other facilities due to Coronavirus

10/26/2020EY OFOOFOFOFOOFOFOFOFOF RERRRRR CORCORCORCORCORCORCORCCORCORCCCORDDDDDDDDDD

'20CV2110 AGSCAB

Case 3:20-cv-02110-CAB-AGS Document 1-1 Filed 10/27/20 PageID.33 Page 1 of 3

JS 44 Reverse (Rev. 0 )

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, useonly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In landcondemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takesprecedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thecitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit codethat is most applicable. Click here for: Nature of Suit Code Descriptions.

Origin. Place an "X" in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.Section 1407.Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASENOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes instatue.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docketnumbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


Attachment A

GAVIN NEWSOM, in his official capacity as Governor of California;

XAVIER BECERRA, in his official capacity as the Attorney General of California; SANDRA SHREWY, MPH, MSW in her official capacity as the Director and State Public Health Officer; KEVIN FAULCONER, in his official capacity as Mayor of the City of San Diego;

PETER WEISS, in his official capacity as Mayor of the City of Oceanside;

SERGE DEDINA, in his official capacity as Mayor of the City of Imperial Beach; DONNA FRYE, in her official capacity as Mayor of the City of Clairemont;

NICK MACCHIONE, in his official capacity as Director of the County of San Diego Health and Human Services Agency; WILMA WOOTEN, MD, in her official capacity as San Diego County Public Health Officer; MARA W. ELLIOTT, in her official capacity as San Diego City Attorney;

WILLIAM D. GORE, in his official capacity as San Diego County Sheriff;

DAVID NISLEIT, in his official capacity as San Diego Chief of Police;

SUMMER STEPHAN, in her official capacity as San Diego County District Attorney; GREG COX, in his official capacity as a San Diego County Supervisor;

DIANNE JACOB, in her official capacity as a San Diego County Supervisor;

KRISTIN GASPAR, in her official capacity as a San Diego County Supervisor; NATHAN FLETCHER, in his official capacity as a San Diego County Supervisor; JIM DESMOND, in his official capacity as a San Diego County Supervisor; and DOES 1 through 100


EXHIBIT 1


EXHIBIT 2


EXECUTIVE DEPA RTMENT

STATE OF CALIFORNIA

EXECUTIVE ORDER N-33-20

WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in

California as a result of the threat of COVID-19; and

WHEREAS in a short period of time, COVID-19 has rapidly spread

throughout California, necessitating updated and more stringent guidance from

federal, state, and local public health officials; and

WHEREAS for the preservation of public health and safety throughout the

entire State of California, I find it necessary for all Californians to heed the State

public health directives from the Department of Public Health.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California,

in accordance with the authority vested in me by the State Constitution and

statutes of the State of California, and in particular, Government Code sections

8567, 8627, and 8665 do hereby issue the following Order to become effective

immediately:

IT IS HEREBY ORDERED THAT:

1) To preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, and prioritizing those at the highest risk and vulnerability, all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19. Those directives are consistent with the March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, found at: https://covid 19.ca.gov/. Those directives follow:

ORDER OF THE STATE PUBLIC HEALTH OFFICER

March 19, 2020

To protect public health, I as State Public Health Officer and Director

of the California Department of Public Health order 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, as outlined at

https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.

In addition, and in consultation with the Director of the Governor's

Office of Emergency Services, I may designate additional sectors as

critical in order to protect the health and well-being of all Californians.

Pursuant to the authority under the Health and Safety Code 120125,

120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this order is to go into effect immediately and shall stay in effect until

further notice.

The federal government has identified 1 6 critical infrastructure sectors

whose assets, systems, and networks, whether physical or virtual, are

considered so vital to the United States that their incapacitation or


https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19

https://19.ca.gov

https://covid

destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof. I order

that Californians working in these 16 critical infrastructure sectors may

continue their work because of the importance of these sectors to

Californians' health and well-being.

This Order is being issued to protect the public health of Californians.

The California Department of Public Health looks to establish

consistency across the state in order to ensure that we mitigate the

impact of COVID-19. Our goal is simple, we want to bend the curve,

and disrupt the spread of the virus.

The supply chain must continue, and Californians must have access to

such necessities as food, prescriptions, and health care. When people

need to leave their homes or places of residence, whether to obtain

or perform the functions above, or to otherwise facilitate authorized

necessary activities, they should at all times practice social distancing.

2) The healthcare delivery system shall prioritize services to serving those who are the sickest and shall prioritize resources, including personal protective equipment, for the providers providing direct care to them.

3) The Office of Emergency Services is directed to take necessary steps to ensure compliance with this Order.

4) This Order shall be enforceable pursuant to California law, including, but not limited to, Government Code section 8665.

IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be

filed in the Office of the Secretary of State and that widespread publicity and

notice be given of this Order.

This Order is not intended to, and does not, create any rights or benefits,

substantive or procedural, enforceable at law or in equity, against the State of

California, its agencies, departments, entities, officers, employees, or any other

person.

IN WITNESS WHEREOF I have

hereunto set my hand and caused

the Gre t Seal of the tote of

d his 19th day

ATTEST:

ALEX PADILLA

Secretary of State


EXHIBIT 3


SUPERSEDED

NICK MACCHIONE, FACHE AGENCY DIRECTOR

aiountu of ~an ~iego

HEAL TH AND HUMAN SERVICES AGENCY PUBLIC HEAL TH SERVICES

3851 ROSECRANS STREET, MAIL STOP P-578 SAN DIEGO, CA 92110-3134

(619) 531-5800 • FAX (619) 542-4186

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

(Effective March 29, 2020)

WILMA J. WOOTEN, M.D. PUBLIC HEAL TH OFFICER

Pursuant to California Health and Safety Code sections 101040, 120175, and 120175.5 (b) the Health Officer of the County of San Diego (Health Officer) ORDERS AS FOLLOWS:

Effective 12:00 a.m. on Sunday, March 29, 2020, and continuing until further notice, the following will be in effect for San Diego County (county):

1. Executive Order N-33-20 issued by the Governor of the State of California ("Executive Order") (available at: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf ) ordered 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 sectors designated in the document available at: https:/ /covid 19 .ca.gov/img/EssentialCriticallnfrastructure Workers.pd!) as updated by the State Public Health Officer . In conformance with, and where not superseded by the Executive Order, this Order additionally specifies and orders as follows:

a1 All public or private "gatherings," as defined in section 2 below, are prohibited. b. All bars, adult entertainment establishments, and other business establishments that

serve alcohol and do not serve food shall be and remain closed. c. All restaurants and other business establishments that serve food shall close all on-site

dining. All food served shall be by delivery, or through pick-up or drive thru. Social distancing shall be required for persons picking up food on site.

d. All gyms and fitness centers shall be and remain closed. e. All businesses shall enact social distancing, increased sanitation standards, and shall

make every effort to use telecommuting for its workforce. All businesses shall suspend any policy or procedure requiring doctor verification for sick or other leave approval.

f. Government entities shall enforce social distancing requirements at all beaches and parks; if a government entity is unable to enforce social distancing at a beach or park, it shall be closed to the public.

g. All public or private schools, colleges, and universities shall not hold classes or other school activities where students gather on the school campus. Parents of school-aged minor children shall take steps to ensure said children are not participating in


SUPERSEDEDactivities prohibited by this Order, or the Executive Order, and that social distancing requirements are practiced.

h. Daycare and childcare facilities shall operate under the following conditions: i) childcare must be carried out in stable groups of 10 or fewer ("stable" means that the same 10 or fewer children are in the same group each day); ii) children shall not change from one group to another; iii) if more than one group of children is cared for at one facility, each group shall be in a separate room; iv) groups shall not mix with each other; and v) childcare providers shall remain solely with one group of children.

1. A strong recommendation is made that all persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system selfquarantine themselves at home.

J. "Non-essential personnel," as defined in section 2(c) below, are prohibited from entry into any hospital or long-term care facility. All essential personnel who show any potential signs or symptoms of COVID-19 shall be strictly prohibited from entry into hospitals or long-term care facilities.

k. Hospitals and healthcare providers shall take measures to preserve and prioritize resources including delaying non-emergent or elective surgeries or procedures where feasible. '

I. Hospitals, healthcare providers, and commercial testing laboratories shall report all COVID-19 test results to the Public Health Officer immediately after such results are received.

m. All persons arriving in the county from international locations identified on the Centers for Disease Control and Prevention (CDC) Warning Level 2 or 3 Travel Advisory (available at: https://wwwnc.cdc.gov/travel/notices) shall be subject to 14-day home quarantine, self-monitoring.

n. A strong recommendation is made for persons exhibiting mild to moderate symptoms of COVID-19 to self-isolate themselves in their place of residence unless seeking medical treatment. A guide to symptoms is found here: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html .

2. For purposes of this Order: a. "Gathering" is any event or convening that brings together 10 or more people in a single

room or single space at the same time, such as an auditorium, stadium, arena, theater, church, casino, conference room, meeting hall, cafeteria, or any other indoor or outdoor space. A gathering does not include:

1. Operations at airports, public transportation or other spaces where 10 or more persons may be in transit but able to practice social distancing.

11. Operations at businesses included in the designated sectors referenced in section 1 above, where many people are present but are able to practice social distancing. Nor does it prohibit said businesses from having 10 or more employees in the same room when able to practice social distancing.

b. "Long term care facility" is a facility serving adults that require assistance with activities of daily living, including a skilled nursing facility, and that is licensed by the California Department of Community Care and Licensing, or the California Department of Public Health.

Page 2 of 5 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS


SUPERSEDEDc. "Non-essential personnel" for the purpose of section 10) above, are employees,

contractors, or members of the public who do not perform treatment, maintenance, support, or administrative tasks deemed essential to the healthcare mission of the longterm care facility or hospital. Non-essential personnel do not include first responders, nor State, federal, or local officials, investigators, or medical personnel carrying out lawful duties. Entry of visitors to hospitals and long-term care facilities are allowed upon the approval of the facility's director, or designee, for the purpose of allowing family and friends to visit a resident such as in an end of life situation, to allow parents or guardians to visit a child who is a patient, or any other circumstances deemed appropriate by the facility director, or designee, and where appropriate precautions by the facility that follow federal, State, and local public health guidance regarding COVID-19 are followed.

d. "Social distancing" is maintaining a six-foot separation from all persons except for household members and medical providers with the appropriate personal protection equipment.

3. This Order is issued as a result of the World Health Organization's declaration of a worldwide pandemic ofCOVID-19 disease, also known as "novel coronavirus."

4. This Order is issued based on scientific evidence regarding the most effective approaches to slow the transmission of communicable diseases generally and COVID-19 specifically, as well as best practices as currently known and available to protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19. The age, condition, and health of a significant portion of the population of the county places it at risk for serious health complications, including death, from COVID-19. Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the publicsuch as older adults, and those with underlying health conditions-at significant risk.

5. The actions required by this Order are necessary to reduce the number of individuals who will be exposed to COVID-19, and will thereby slow the spread of COVID-19 in the county. By reducing the spread of COVID-19, this Order will help preserve critical and limited healthcare capacity in the county and will save lives.

6. This Order is issued in accordance with, and incorporates by reference: a) the Declaration of Local Health Emergency issued by the Health Officer on February 14, 2020; b) the Proclamation of Local Emergency issued by the County Director of Emergency Services on February 14, 2020; c) the action of the County Board of Supervisors to ratify and continue both the local health emergency and local emergency on February 19, 2020; d) the Proclamation of a State of Emergency issued by the Governor of the State of California on March 4, 2020; e) Executive Order N-25-20 issued by the Governor of the State of California on March 12, 2020 which orders that "All residents are to heed any orders and guidance of state and local health officials, including but not limited to the imposition of social distancing measures, to control COVID-19"; t) Proclamation 9984 regarding COVID-19 issued by the



SUPERSEDEDPresident of the United States on March 11, 2020; and g) Executive Order N-33-20 issued by the Governor of the State of California on March 19, 2020.

7. This Order is issued to prevent circumstances often present in gatherings that may exacerbate the spread ofCOVID-19, such as: 1) the increased likelihood that gatherings will attract people from a broad geographic area; 2) the prolonged time period in which large numbers of people are in close proximity; 3) the difficulty in tracing exposure when large numbers of people attend a single event or are at a single location; and 4) the inability to ensure that such persons follow adequate hygienic practices.

8. This Order comes after the release of substantial guidance from the Health Officer, the California Department of Public Health, the CDC, and other public health officials throughout the United States and around the world.

9. This Order comes after the CDC issued: "Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes."

10. Pursuant to Health and Safety Code section 120175.5 (b) all governmental entities in the county shall take necessary measures within the governmental entity's control to ensure compliance with this Order and to disseminate this Order to venues or locations within the entity's jurisdiction where gatherings may occur.

11. Violation of this Order is subject to fine, imprisonment, or both. (California Health and Safety Code section 120295.)

12. To the extent necessary, this Order may be enforced by the Sheriff or chiefs of police pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029.

13. Once this Order takes effect it shall supersede the Amended Order of the Health Officer and Emergency Regulations dated March 16, 2020 and subsequent addenda.

IS SO ORDERED:

Date: March 27, 2020 ' . ., . .

Public Health Officer County of San Diego

Page 4 of 5 ORDER OF THE HEAL TH OFFICER AND EMERGENCY REGULATIONS


SUPERSEDED

EMERGENCY REGULATIONS

As Director of Emergency Services for the County of San Diego, I am authorized to promulgate regulations for the protection of life and property pursuant to Government Code Section 8634 and San Diego County Code section 31.103. The following shall be in effect for the duration of the Health Officer Order issued above which is incorporated in its entirety by reference:

The Health Officer Order shall be promulgated as a regulation for the protection of life and property.

Any person who violates or who refuses or willfully neglects to obey this regulation is subject to fine, imprisonment, or both. (Government Code section 8665.)

Date: March 27, 2020 H£~j Chief Administrative Officer Director of Emergency Services County of San Diego



SUPERSEDED


Qinuntu of ~an ~iego HEAL TH AND HUMAN SERVICES AGENCY

PUBLIC HEAL TH SERVICES 3851 ROSECRANS STREET, MAIL STOP P-578

SAN DIEGO, CA 92110-3134 (619) 531-5800 • FAX (619) 542--4186

ADDENDUM 1 TO ORDER OF THE HEALTH OFFICER

AND EMERGENCY REGULATIONS


The Health Officer Order dated March 27, 2020, and effective as of 12:00 a.m. on Sunday, March 29, 2020, is amended through this Addendum 1 effective as of 12:00 a.m. on Friday, April 3, 2020.

Section 1 of the Health Officer Order shall be amended to add subsections o, p, q and r as follows:

"o. California Department of Public Health Face Covering Guidance issued on April 1, 2020 attached hereto as Exhibit A, shall be followed in the county except as noted in section lq, below.

p. All businesses that remain in operation in accordance with the Order and that allow members of the public to enter a facility must prepare and post by no later than 12:00 a.m. on April 7, 2020 a "Social Distancing and Sanitation Protocol" on the form attached to this Order as for each of their facilities open to the public in the county. The Social Distancing and Sanitation Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy of the Social Distancing and Sanitation Protocol must also be provided to each employee performing work at the facility. All businesses shall implement the Social Distancing and Sanitation Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Social Distancing and Sanitation Protocol must ensure all required measures are implemented and must identify and require measures necessary to implement social distancing are implemented at each facility that will ensure social distancing and sanitation at that particular facility. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, additional measures shall be identified and implemented or the facility shall be closed.

q. Effective 12:00a.m. Saturday, April 4, 2020, all employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, gas station, restaurant and other business establishment that serves food shall wear a cloth face covering as described in the California Department of Public Health Face Covering Guidance referenced in section 1 o, above.

r. All public parks and recreation areas including public beaches shall comply with section 1 p, above. Parking lots at such facilities shall be closed and all such facilities


SUPERSEDEDshall be accessible only from members of the public within walking distance of the facility. Said facilities shall be used solely for walking, hiking, equestrian or bicycle riding. The public shall not congregate or participate in active sport activities at said facilities.

IT IS SO ORDERED:

Date: April 2, 2020 ~ Public Health Officer County of San Diego

This Addendum shall be promulgated as a regulation for the protection of life and property.

Date: April 2, 2020

1e mmistrative O r Director of Emergency Services County of San Diego

Page 2 of2 ADDENDUM 2 TO ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS


SUPERSEDED

April 1, 2020

TO: General Public

SUBJECT:

Exhibit A

SONIA V. ANGELL, MD, MPH State Public Health Officer & Director

GAVIN NEWSOM Governor

State of California-Health and Human Services Agency

California Department of Public Health

Face Coverings Guidance

This document provides public health information for the use of cloth face coverings by the general public when outside the home conducting essential activities. It does not substitute for existing guidance about social distancing and handwashing. It does not mandate that face coverings be worn state-wide.

Guidance

• Our best community and individual defense against COVID 19 is washing our hands frequently, avoiding touching our eyes, nose and mouth with unwashed hands, avoiding being around sick people and physical distancing, especially by staying at home. A strong health care delivery


SUPERSEDEDExhibit A

system and emergency response system is also an essential core defense to save lives when people do get ill.

• There may be a benefit to reducing asymptomatic transmission and reinforcing physical distancing from the use of face coverings. However, face coverings may increase risk if users reduce their use of strong defenses, such as physical distancing and frequent hand washing, when using face coverings.

Considerations

• Counties that choose to introduce policies promoting face coverings for their residents should make sure that these policies do not put increased demand on medical grade respirators, such as N95 and surgical masks. Counties should emphasize the use of face coverings in conjunction with evidence-based interventions such as staying at home, physical distancing when completing essential activities and washing hands.

• Individuals outside of counties with recommendations on face coverings, should wear coverings if they feel comfortable doing so, and practice strict hand washing before and after touching and adjusting the mask. They are reminded that face coverings are not a replacement for other evidence-based measures such as physical distancing, frequent hand washing practices, and remaining at home when not doing essential activities.

Background

What is a cloth face covering?

A cloth face covering is a material that covers the nose and mouth. It can be secured to the head with ties or straps or simply wrapped around the lower face. It can be made of a variety of materials, such as cotton, silk, or linen. A cloth face covering may be factory-made or sewn by hand, or can be improvised from household items such as scarfs, T-shirts, sweatshirts, or towels.

How well do cloth face coverings work to prevent spread of COVID-19?

There is limited evidence to suggest that use of cloth face coverings by the public during a pandemic could help reduce disease transmission. Their primary role is to reduce the release of infectious particles into the air when someone speaks, coughs, or sneezes, including someone who has COVID-19 but feels well. Cloth face coverings are not a substitute for physical distancing and washing hands and staying home when ill, but they may be helpful when combined with these primary interventions.

When should I wear a cloth face covering?

You may choose to wear a cloth face covering when you must be in public for essential activities, such as shopping at the grocery store. Wearing a cloth face covering does not eliminate the need to physically distance yourself from others.

How should I care for a cloth face covering?

It's a good idea to wash your cloth face covering frequently, ideally after each use, or at least daily. Have a bag or bin to keep cloth face coverings in until they can be laundered with detergent and hot water and


SUPERSEDEDExhibit A

dried on a hot cycle. If you must re-wear your cloth face covering before washing, wash your hands immediately after putting it back on and avoid touching your face. Discard cloth face coverings that:

• No longer cover the nose and mouth • Have stretched out or damaged ties or straps • Cannot stay on the face • Have holes or tears in the fabric


SUPERSEDEDSOCIAL DISTANCING AND SANITATION PROTOCOL

Business Name:

Facility Address:

Businesses must implement all mandatory measures listed in A, B, and F below. Businesses shall select applicable measures listed in C, D, and E below and be prepared to explain why any measure that is not implemented is inapplicable to the business.

A. Signage (Mandatory):

D Signage at each public entrance of the facility to inform all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; and not shake hands or engage in any unnecessary physical contact.

D Signage posting a copy of the Social Distancing Protocol at each public entrance to the facility.

B. Measures To Protect Employee Health (Mandatory):

D Everyone who can carry out their work duties from home has been directed to do so.

D All employees have been told not to come to work if sick.

D All desks or individual work stations are separated by at least six feet.

D Break rooms, bathrooms, and other common areas are being disinfected frequently, on the following schedule:

D Breakrooms:

D Bathrooms:

D Other:

□Disinfectant and related supplies are available to all employees at the following location(s):

D Hand sanitizer effective against COVID-19 is available to all employees at the following location(s):

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8. Measures To Protect Employee Health (Mandatory) Continued:

D Soap and water are available to all employees at the following location(s):

D Copies of the Protocol have been distributed to all employees.

C. Measures To Prevent Crowds From Gathering (Check all that apply to the facility):

D limit the number of customers in the store at any one time to which allows for customers and employees to easily maintain at least six-foot distance from one another at all practicable times.

D Ensure an employee is at the door to monitor that the maximum number of customers in the facility set forth above is not exceeded.

D Placing per-person limits on goods that are selling out quickly to reduce crowds and lines.

D Optional - Describe other measures:

D. Measures To Keep People At Least Six Feet Apart (Check all that apply to the facility):

D Placing signs outside the store reminding people to be at least six feet apart, including when in line.

D Placing tape or other markings at least six feet apart in customer line areas inside the store and on sidewalks at public entrances with signs directing customers to use the markings to maintain distance.

D Separate order areas from delivery areas to prevent customers from gathering.

D All employees have been instructed to maintain at least six feet distance from customers and from each other, except employees may momentarily come closer when necessary to accept payment, deliver goods or services, or as otherwise necessary.

D Optional - Describe other measures:

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E. Measures To Prevent Unnecessary Contact (Check all that apply to the facility):

D Preventing people from self-serving any items that are food-related.

D Lids for cups and food-bar type items are provided by staff; not to customers to grab.

D Bulk-item food bins are not available for customer self-service use.

D Not permitting customers to bring their own bags, mugs, or other reusable items from home.

D Providing for contactless payment systems or, if not feasible, sanitizing payment systems regularly. Describe below:

D Optional - Describe other measures (e.g., providing senior-only hours):

F. Measures To Increase Sanitization (Mandatory):

D Disinfecting wipes that are effective against COVID-19 are available near shopping carts and shipping baskets.

D Employee(s) assigned to disinfect carts and baskets regularly.

D Hand sanitizer, soap, and water, or effective disinfectant is available to the public at or near the entrance of the facility, at checkout counters, and anywhere else inside the store or immediately outside where people have direct interactions.

D Disinfecting all payment portals, pens, and styluses after each use.

D Disinfecting all high-contact surfaces frequently.

G. Hospitals/Health Care Facility Only:

D Symptoms/temperature checks to ensure any staff or visitors (allowed pursuant to Section 2c of the Order) entering the facility are not ill.

*Any additional measures not included here should be listed on separate pages, which the business should attach to this document.

You may contact the following person with any questions or comments about this protocol:

Name: Phone Number:

Date of Form Completed:

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SUPERSEDED


HEAL TH AND HUMAN SERVICES AGENCY PUBLIC HEAL TH SERVICES

3851 ROSECRANS STREET, MAIL STOP P-578 SAN DIEGO, CA 92110-3134

(619) 531 -5800 • FAX (619) 542-4186

ADDENDUM 2 TO ORDER OF THE HEALTH OFFICER

AND EMERGENCY REGULATIONS


The Health Officer Order dated March 27, 2020, and effective as of 12:00 a.m. on Sunday, March 29, 2020, is amended through this Addendum 2 effective as of 12:00 a.m. on Saturday, April 4, 2020.

Section 1 q of the Health Officer Order is amended as follows:

"q. All employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, gas station, restaurant, and other business establishment that serves food, or when making a delivery to a customer, shall wear a cloth face covering as described in the California Department of Public Health Face Covering Guidance referenced in section 1 o above. Owners of business establishments are responsible for ensuring compliance with this section."

Section 1 of the Health Officer Order is amended to add subsections as follows:

"s. Boating for recreational purposes, watersports, or swimming, are prohibited on or in public waterways and at beaches."

IT IS SO ORDERED:

Date: April 3, 2020

Public Health Officer County of San Diego


SUPERSEDEDThis Addendum shall be promulgated as a regulation for the protection of life and property.

Date: April 3, 2020 Helen Robbins-Meyer Chief Administrative Of cer Director of Emergency Services County of San Diego

Page 2 of2 ADDENDUM 2 TO ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS


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