Gym owner can’t challenge closure order for a 5th time, judge says

A federal judge in Sacramento threw out a constitutional challenge to business closure orders filed by a gym owner and refused to give anymore chances to amend it.

U.S. Judge John A. Mendez of the Eastern District of California on Tuesday ended for good the months-long saga between Sean Covell and Gov. Gavin Newsom, the San Joaquin County Board of Supervisors and the city of Lodi, whose police officers visited the gym in April to ensure compliance with the governor's shutdown orders.

Best Supplement Guide LLC et al v. Newsom et al, 2:20CV00965 (E.D. Cal., filed May 12, 2020)

Covell alleged violations of his constitutional rights to freedom of assembly, association and free speech; equal protection of the laws, due process, and protection under the 5th Amendment takings clause.

Mendez had denied Covell's initial request for a temporary restraining order and preliminary injunction in May. The judge applied the deferential Jacobson v. Massachusetts, 197 U.S. 11 (1905) precedent that upholds government mandates during public emergencies. Mendez's decision to toss out the case entirely with prejudice, including all of its constitutional causes of action, was largely based on his initial denial. Even if he were to apply the constitutional standards that traditionally apply during nonemergency situations as Covell suggested, Mendez said it would not change anything in the case. Nor did Covell's attorney, Brian Ricardo Chavez-Ochoa, provide new information to support his position that gym closures bear no substantial relation to protecting public health, despite having ample time to come up with new arguments to state claims that could survive dismissal, the judge said.

"We're up to the third amended complaint, You haven't focused the case at all," the judge told Chavez-Ochoa. "Instead you continue to maintain a kitchen sink approach: 'Let's keep nine claims in there, throw everything at the judge and see if something sticks.'

"If it didn't stick the first time, I'm not sure it'll stick this time around because when I saw this case again, read everything again, the first question that pops up is: What's changed since May of 2020 to make this situation worse for plaintiffs, such that their claims might have some merit at this point?" the judge asked. He pointed out other closure challenges filed on behalf of retailers, places of worship and schools that have since been tossed out citing the same Supreme Court case.

"To me, that is the legal standard," the judge said. "That's what I look to as the standard to be applied in these very unique and unusual cases. I just don't see any way that there has been any change in the circumstances since May for these claims to go forward."

Chavez-Ochoa argued the case was filed in the early stages of the pandemic and since then the public has learned more about the virus. However, the Centers for Disease Control and Prevention has changed its own rules frequently, he said. Chavez-Ochoa also maintained the Jacobson court did say there could be circumstances in which a court must intervene.

"As COVID went on, we saw death rates plummet, saw the recovery of those who had COVID, including the president. I mean, he was diagnosed and four days later he was cleared to return to work," Chavez-Ochoa began, before Mendez interrupted him with a laugh.

"You're not really going to go there, are you?" the judge asked. "I don't think if any of us got COVID, none of us would get the same treatment the president got."

Chavez-Ochoa maintained he was considered at risk, had multiple heart attacks, underwent heart surgery, "and yet I recovered."

"I'm not necessarily saying that it's not something we have to be concerned about, but it's something we have to look at as far as where we are at present day as when we first filed the first complaint," he said. "The facts were changing almost on a daily, if not weekly basis."

Deborah J. Fox, partner at Meyers Nave who represents San Joaquin County and the city of Lodi, argued the plaintiff has no fundamental or constitutional rights to exercise indoors, nor are there any First Amendment free speech protections to communicate with trainers or fellow gym patrons. John W. Killeen who represents the state noted gyms have since been allowed to operate indoors at 10% capacity but can also hold outdoor operations.

"I think the state's response has been well-tailored to respond to the virus," Killeen told the judge.

Mendez ultimately granted Fox and Killeen's dismissal motions, as the plaintiff failed to show any of his claimed rights were violated.

"While the court has expressed its understanding and concern not only for plaintiffs of economic plights but all businesses affected by this pandemic, the court has also recognized these orders play an important role in preventing what is a serious and deathly challenge to our public health," the judge said.