Professional Documents
Culture Documents
DIVISION ONE
STATE OF CALIFORNIA
This putative class action against California (state) and San Diego
County (county) officials challenges Governor Gavin Newsom’s emergency
orders and related public health directives restricting business operations
during the COVID-19 pandemic. The plaintiffs, owners of affected
restaurants and gyms (Owners), primarily contend the orders are
procedurally invalid because they were adopted without complying with the
2 The facts are taken from the allegations of the Complaint, its exhibits,
and documents subject to judicial notice. (See 3250 Wilshire Boulevard Bldg.
v. Employers Ins. Of Wausau (1995) 39 Cal.App.4th1277, 1279.)
3 Dates are in 2020 unless otherwise specified.
4 Owners’ unopposed request for judicial notice filed on October 19, 2021,
which contains the Governor’s executive orders cited in this opinion, is
granted with the exception of exhibit GG, a published court of appeal opinion
for which judicial notice is unnecessary. (Jaramillo v. County of Orange
(2011) 200 Cal.App.4th 811, 817.) The “Request for Findings” embedded
within this request for judicial notice is procedurally improper and in any
event is also denied on the merits. (Cal. Rules of Court, rule 8.54; see Diaz v.
Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213
[power to make findings on appeal is discretionary and should be invoked
sparingly, and only to affirm].)
Owners’ unopposed supplemental request for judicial notice filed on
November 17, 2021 is denied. As they concede, with the exception of exhibit
II, none of the documents were provided to the trial court , and Owners fail to
3
Restaurants, gyms, and other businesses deemed nonessential
remained closed until May 4, when the Governor issued Executive Order N-
60-20. It allowed reopening in phases as determined by the Department of
Public Health (Health Department). Restaurants and gyms in San Diego
County were allowed to reopen in May and June respectively.
After a July surge of infections, the Health Department issued the
“Guidance on Closure of Sectors in Response to COVID-19” (Guidance). It
prohibited indoor dining in 29 counties, including San Diego.
The Blueprint for a Safer Economy (Blueprint) followed in late August.
Replacing the previous staged reopening plan, it created a color-coded tiered
system, updated weekly, that assigned each county a color (purple, red,
orange, or yellow) based on its assessed risk level for COVID-19 transmission
and imposed corresponding restrictions for different business sectors. For
restaurants, indoor dining in “purple” counties was prohibited. Those in
“red” counties were limited to operating at 25 percent capacity and prohibited
from seating more than 100 people. Restaurants in “orange” counties were
prohibited from operating at more than 50 percent capacity and could not
demonstrate good cause to consider them for the first time on appeal. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
Exhibit II is not subject to judicial notice. It is a Los Angeles Superior Court
order in a different case and therefore has no precedential effect on appeal. It
also does not involve or discuss the Governor’s powers under the Emergency
Act, so it is simply not relevant. (See Hailey v. California Physicians’ Service
(2007) 158 Cal.App.4th 452, 463, fn. 4 [denying request for judicial notice of
court proceeding in another case as being irrelevant].)
Respondents’ unopposed request for judicial notice filed January 19,
2022 is granted with respect to exhibits 5 and 6 (legislative history) and
exhibit 7 (Executive Order N-60-20). In all other respects it is denied because
the Internet statistical documents are not properly subject to judicial notice.
(See Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364, fn. 5 [“Beyond the
mere fact that the report exists, the availability of the report on the Internet
hardly renders the content of the report ‘not reasonably subject to dispute’ ”].)
4
seat more than 200 people. Those in “yellow” counties were limited to 50
percent capacity. The Blueprint was rescinded by Executive Order N-07-21
in June 2021.
B. The Litigation
In April 2021, 640 Tenth, LP, O’Frank, LLC, Fit Athletic Club-San
Diego, LLC, and Crossfit East Village Corporation filed a third amended
complaint (Complaint) against Gavin Newsom in his capacity as Governor of
regulations. 8 For instance, an agency must (1) give the public notice of its
proposed regulatory action (§ 11346.4); (2) issue a complete text of the
proposed regulation with a statement of the reasons for it (§ 11346.2, subds.
(a) & (b)); (3) give interested parties an opportunity to comment on the
proposed regulation (§ 11346.8); (4) respond in writing to public comments
(§ 11346.9, subd. (a)(3)); and (5) forward a file of all materials on which the
agency relied to the Office of Administrative Law (§§ 11342.550, 11347.3,
subd. (c)), which reviews the regulation for, among other things, consistency
with the law, clarity, and necessity (§ 11349.1).
8
“[U]nder the provisions of Government Code section 8571,
I find that strict compliance with the Administrative
Procedure Act . . . would prevent, hinder or delay
appropriate actions to prevent and mitigate the effects of
the COVID-19 pandemic.” [¶] . . . [¶]
“Nothing related to the establishment or implementation
of . . . criteria or procedures [established by the Public
Health Officer], or any other aspect of this Order, shall be
subject to the Administrative Procedure Act . . . .”
By its own plain terms, the Governor’s authority under section 8571 to
suspend “any regulatory statute” includes the APA. (See People v. Dunbar
(2012) 209 Cal.App.4th 114, 117 [“ ‘[t]he word “any” means without limit and
no matter what kind”].) Therefore, executive order N-60-20 precludes
Owners’ claims that the Guidance and Blueprint, issued in July and August
respectively, are invalid for lack of APA compliance.
In urging that the APA applies, Owners maintain that Executive Order
N-60-20 “never came close to ‘suspending’ anything” because it “never used
the word ‘suspend’ ” and merely deals with matters of “ ‘internal
management.’ ”
We understand the executive order differently. Executive Order N-60-
20 provides in part:
“IT IS HEREBY ORDERED THAT: [¶]
“1) All residents are directed to continue to obey State
public health directives as made available [on
covid19.ca.gov website] and elsewhere as the State Public
Health Officer may provide.”
The Governor’s order is clearly not about internal management of local
government. Rather, in the face of a deadly pandemic, it directs all
California residents to obey then-existing and future COVID-19 Health
Department directives. Executive Order N-60-20 further authorized the
9
Health Department to take any additional action deemed necessary to protect
public health during the pandemic, stating:
“The State Public Health Officer may, from time to time
and as she deems necessary to respond to the dynamic
threat posed by COVID-19, revise the criteria and
procedures set forth [here]. Nothing related to the
establishment or implementation of such criteria or
procedures, or any other aspect of this Order, shall be
subject to the [APA]. Nothing in this paragraph . . . shall
limit the authority of the State Public Health Officer to
take any action she deems necessary to protect public
health in the face of the threat posed by COVID-19,
including (but not limited to) any necessary revision to the
four-stage framework previously articulated . . . .” (Italics
and boldface added.)
In a related argument, Owners point to certain APA-compliant Cal-
OSHA regulations dealing with business operations during the pandemic
(Cal. Code Regs., tit. 8, § 3205 (regulation 3205)). They contend that the
Governor could not have determined the APA would “ ‘prevent, hinder, or
delay’ ” Health Department directives when his “public words and actions
have shown precisely the opposite.” Although Owners do not come right out
and say it, we understand their argument to be that because other agencies
engaged in APA-compliant rulemaking dealing with the pandemic, the
Governor’s finding in Executive Order N-60-20 that “strict compliance with
the [APA] would prevent, hinder or delay” must be untrue.
Putting aside that as a reviewing court we do not make such veracity
determinations, the argument fails on its merits too. COVID-19 rulemaking
by other agencies (e.g., Cal-OSHA) involves different and distinct concerns
and contexts. For example, regulation 3205 requires employers to establish a
written program for employees to communicate any COVID-19 symptoms
“without fear of reprisal.” In the Emergency Act, the Legislature gave the
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Governor broad authority to stem a potentially deadly virus that spreads
through close human contact. In that effort, days and even hours count.
Promulgating regulations for employees to report COVID-19 symptoms is
qualitatively different. That some administrative agencies found APA
compliance would not hinder the efficacy of their pandemic related
regulations says nothing about whether it was reasonable to conclude that
applying the APA to the Governor’s emergency orders would have effectively
eviscerated them.
In sum, we hold that in May the Governor suspended application of the
APA as provided in Executive Order N-60-20. For this reason alone, Owners’
claim that the Guidance and/or Blueprint—issued in July and August
respectively—are invalid as not being APA-compliant must fail.
The remaining APA issue is whether the stay-at-home directive
promulgated in Executive Order N-33-20, which preceded Executive Order N-
60-20, is APA-exempt for some other reason. As we explain next, it is.
The APA does not apply to a regulation “that embodies the only legally
tenable interpretation of a provision of law.” (§ 11340.9, subd. (f).) This
exception applies “ ‘where the law “can reasonably be read only one
way” [citation], such that the agency’s actions in applying the law
are . . . patently compelled by . . . the statute’s plain language.’ ” (Missionary
Guadalupanas of Holy Spirit Inc. v. Rouillard (2019) 38 Cal.App.5th 421,
432 (Missionary Guadalupanas).) This exception codifies the principle that if
certain policies and procedures are “ ‘essentially[ ] a reiteration of the
extensive statutory scheme which the Legislature has established,’ ” then
there is obviously no duty to formally enact regulations to cover such
reiterations. (Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47,
62.)
11
Applying this rule turns on the question of ambiguity. An agency’s
interpretation of a statute is subject to the rulemaking procedures of the APA
if the interpretation “ ‘is required to resolve an ambiguity in the law to be
enforced.’ [Citation.] ‘ “ ‘An ambiguity arises when language is reasonably
susceptible of more than one application to material facts.’ ” ’ ” (Missionary
Guadalupanas, supra, 38 Cal.App.5th at p. 433.) In contrast, “where the
language is reasonably susceptible of only one interpretation as applied to the
facts, it is ‘ “the only legally tenable interpretation of a provision of law” ’ ”
and the APA does not apply. (Id. at p. 433; § 11340.9, subd. (f).)
For example, in Missionary Guadalupanas, the Department of
Managed Health Care directed health service plans to cover abortions. This
was APA-exempt because it was the only legally tenable interpretation of the
governing statute, which required coverage of “basic health care services,”
which are broadly defined by statute to include physician services,
hospital inpatient services, ambulatory care services, preventive health
services, and emergency health services. (Missionary Guadalupanas, supra,
38 Cal.App.5th at pp. 433‒434.)
Here, Owners assert that this type of APA exemption does not apply in
this case because the Health Department did not establish that its
“ ‘interpretation follows directly and inescapably from the pertinent
provisions of law.’ ” We disagree. The only legally tenable interpretation of
section 8567 is that in a duly proclaimed state of emergency, the Governor’s
orders “take effect immediately.” (§ 8567, subd. (b).) There is no ambiguity.
The meaning of “immediately” is not reasonably subject to dispute.
Under the APA a 45-day notice and comment period precedes
regulatory enactment. (See State Water Resources Control Bd. v. Office of
Admin. Law (1993) 12 Cal.App.4th 697, 705 (State Water Resources) [the 45-
12
day period “means that a proposed action cannot be conclusively acted upon
until at least 45 days have passed from the date of notification”]; § 11346.4,
subd. (a).) Obviously, it would be impossible for the Governor’s orders under
section 8567, subdivision (a) to “take effect immediately” (id., subd. (b)), and
at the same time be subject to a 45-day waiting period. The Emergency Act
can be interpreted only one way. If the orders take effect immediately, then
the APA cannot apply.
In urging a different conclusion, Owners cite State Water Resources,
supra, 12 Cal.App.4th 697. That case explains that “implied exemptions” to
the APA are “if recognized at all, disfavored” and unless “expressly exempted,
all administrative regulations must comply with the APA.” (State Water
9 Section 11346 subdivision (a) provides in part: “This chapter shall not
be superseded or modified by any subsequent legislation except to the extent
that the legislation shall do so expressly.”
13
construed to supersede the APA rulemaking provisions.” (Cal. Practice
Guide: Administrative Law, supra, at ¶ 26:15.)
In claiming that the APA emergency rulemaking provisions apply
under the Emergency Act, Owners also rely on Wisconsin Legislature v. Palm
(Wis. 2020) 942 N.W.2d 900, which “invalidated indoor dining restrictions for
their failure to comply with the provisions of Wisconsin’s rulemaking
statute.” But even a cursory reading of that case shows why it is completely
inapt here. In the first page of its opinion, the Wisconsin Supreme Court
noted that the case involved “the assertion of power by one unelected official”
and was “not about Governor Tony Evers’ Emergency Order or the powers of
the Governor.” (Wisconsin Legislature v. Palm, at p. 905.)
Owners’ reliance on a later Wisconsin case, Tavern League of Wisconsin
v. Palm (2021) 957 N.W.2d 261 (Tavern League), suffers the same problem. It
too did not involve a governor’s COVID-19 orders promulgated under
emergency legislation. (Id. at p. 271 (conc. opn. of Hagedorn, J.) [noting that
the case arose because the Wisconsin health services official “issued another
order doing exactly what this court said she may not do [in Wisconsin
Legislature v. Palm]”].)
Perhaps Owners’ best argument on this issue is that the APA itself
contains provisions for an agency to use in adopting emergency regulations
and, therefore, implicit in the Emergency Act is that the Governor must
follow them. But we draw a different conclusion. An “ ‘[e]mergency’ ” for
purposes of expedited APA rulemaking is “a situation that calls for
immediate action to avoid serious harm to the public peace, health, safety, or
general welfare.” (§ 11342.545, italics added.) To qualify, the agency must
prepare a “written statement” containing “a description of the specific facts
demonstrating the existence of an emergency and the need for immediate
14
action, and demonstrating by substantial evidence, the need for the proposed
regulation to effectuate the statute being implemented, interpreted, or made
specific and to address only the demonstrated emergency.” (§ 11346.1, subd.
(b)(2).) The agency must “also identify each technical, theoretical, and
empirical study, report or similar document” upon which it relies. (Ibid.)
Any interested person may challenge an emergency regulation on the ground
that the facts recited do not constitute an emergency. (§ 11350, subd. (a).)
Interested persons have five calendar days to submit comments “unless the
emergency situation clearly poses such an immediate serious harm that
delaying action to allow public comment would be inconsistent with the
public interest.” (§ 11349.6, subd. (b).) An emergency regulation may not
remain in effect for more than 180 days unless the agency has complied with
otherwise applicable APA procedures before or during the 180 days.
(§ 11346.1, subd. (e).)
In contrast, the Governor’s Emergency Act power to issue orders having
the force of immediately effective law is triggered only by a “ ‘[s]tate of war
emergency,’ ” or a “ ‘[s]tate of emergency.’ ” (§§ 8558, subds. (a) & (b), 8567,
subd. (b).) Pertinent here, a “ ‘state of emergency’ ” means “the duly
proclaimed existence of conditions of disaster or extreme peril to the safety of
persons and property . . . which, by reason of their magnitude, are or are
likely to be beyond the control of” local government entities. (§ 8558, subd.
(b), italics added.) The Governor is empowered to declare a state of
emergency when he finds these circumstances exist and he is requested to do
so by local government or he finds that local authority is “inadequate to cope
with the emergency.” (§ 8625.)
Unlike emergency rulemaking under the APA, the Emergency Act does
not require the Governor to support his proclamation with “substantial
15
evidence,” a list of studies or reports, or even a description of facts
demonstrating the existence of the emergency. Instead, “[i]ssuance of the
proclamation implies the Governor has made the [requisite] finding.”
(California Correctional Peace Officers Assn. v. Schwarzenegger (2008) 163
Cal.App.4th 802, 820.) “[I]t is sufficient if the proclamation sets forth
circumstances that support the implied finding.” (Ibid.)
Owners’ argument is that because a streamlined procedure for
emergency APA regulations exist, the Governor was obliged to follow them
when issuing orders under the Emergency Act. But a Band-Aid will not work
when a tourniquet is required, nor will procedures designed to ameliorate
“serious harm” (§ 11342.545) do in the face of a “disaster or extreme peril”
(§ 8558, subd. (b)) such as the COVID-19 pandemic. The Legislature
understood this distinction and provided separate statutory schemes for two
qualitatively different types of emergency. In the face of an extreme peril to
public health, the Legislature has provided that the Governor is not required
to comply with any APA rulemaking procedures, ordinary or emergency.
Our holding that the Governor’s law-making power under the
Emergency Act is not subject to the APA is also supported by considering the
broader statutory context. (See Poole v. Orange County Fire Authority (2015)
61 Cal.4th 1378, 1385 [“critical to an understanding of [the statute] is its
statutory context”].) The Emergency Act not only deals with a present state
of emergency, but also contemplates that the Governor will prepare “orders
and regulations needed to carry out” its provisions “in advance of a . . . state
of emergency.” (§ 8567, subd. (c).) By statute, such advance orders “shall be
“shall be filed” not pursuant to the APA, but rather “in the office of the
Secretary of State and with the county clerk of each county.”
11 Whether the activity of doing business, or the activity of making a
profit is a property interest under the Fifth Amendment is an issue that has
not been raised in this case and, therefore, one on which we offer no opinion.
12 The Complaint alleges that restrictions on business operations “has
caused both a regulatory and physical taking . . . .” (Italics added.) However,
“physical taking” is a legal conclusion and, as such, is disregarded on a
17
Regulatory takings are distinct. There are two types of regulatory
action that amount to a categorical taking. The first is where government
requires an owner to suffer a permanent physical invasion of the property,
however minor. (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 538
(Lingle).) Second, “regulations that completely deprive an owner of
‘all economically beneficial us[e]’ of [the] property” are a taking. (Ibid.)
Owners do not allege either type of categorical regulatory taking. (See
Friends of DeVito v. Wolf (2020) 227 A.3d 872, 896 [“the public health
rationale for imposing the restrictions . . . to suppress the spread of the virus
throughout the [state] is a stop-gap measure and, by definition, temporary”].)
“A regulation, however, may effect a taking though, as is true here, it
does not involve a physical invasion and leaves the property owner some
economically beneficial use of his property.” (Kavanau v. Santa Monica Rent
Control Bd. (1997) 16 Cal.4th 761, 774, italics omitted.) In these cases, “if
regulation goes too far it will be recognized as a taking.” (Pennsylvania Coal
Co. v. Mahon (1922) 260 U.S. 393, 415.) Given the wide variety of ways in
which government regulations can affect property interests, the Supreme
Court has eschewed any “ ‘set formula’ for determining” how far is too far.
(Penn Cent. Transp. Co. v. New York City (1978) 438 U.S. 104, 124 (Penn
Central).) Rather, determining whether a partial regulatory taking has
occurred “require[s] an ‘ad hoc’ factual inquiry” considering what have
become known as Penn Central factors: (1) the economic impact of the
regulation; (2) its interference with reasonable investment-backed
demurrer. (See Arizona v. California (1931) 283 U.S. 423, 462, fn. 14
[allegation that the Secretary of the Interior had “seized and had taken
possession” disregarded as a “conclusion of law”].) The Complaint does not
allege facts constituting a physical taking.
18
expectations; and (3) the character of the government action. 13 (Horne v.
Dep't of Agric. (2015) 576 U.S. 351, 360.) These are the “principal guidelines
for resolving regulatory takings claims.” (Lingle, supra, 544 U.S. at p. 539.)
Owners have not alleged a legally sufficient regulatory taking claim.
Their attempt to do so is met first with a virtual torrent of California federal
district court decisions rejecting similar challenges to Governor Newsom’s
emergency COVID-19 orders. (Abshire v. Newsom (E.D.Cal. Aug. 5, 2021,
No. 2:21-cv-00198-JAM-KJN) 2021 U.S.Dist. Lexis 147223, *20‒*24
[restaurants and lodgings]; Mission Fitness Ctr., LLC v. Newsom (C.D.Cal.
May 10, 2021, No. 2:02-CV-09824-CAS-KSx) 2021 U.S.Dist. Lexis 89055,
*22‒*26 [fitness center]; Metroflex Oceanside LLC v. Newsom (S.D.Cal. 2021)
532 F.Supp.3d 976, 982; Excel Fitness Fair Oaks, LLC v. Newsom (E.D.Cal.
Mar. 2, 2021, No. 2:20-cv-02153-JAM-CKD) 2021 U.S. Dist. Lexis 39061,
*14‒*16 [fitness center]; Culinary Studios, Inc. v. Newsom (E.D.Cal 2021) 517
F.Supp.3d 1042, 1063‒1065; Pcg-Sp Venture I LLC v. Newsom (C.D.Cal. June
23, 2020, No. EDCV 20-1138 JGB (KKx)) 2020 U.S.Dist. Lexis 137155,
*28‒*30.) 14
21
Accordingly, this factor favors Owners to some extent. Of course, the
food service industry is highly regulated, and we can reasonably assume
fitness centers are too. Both types of businesses have to be sensitive to
sanitation issues as a public health concern. Still, it is fair to say that almost
everyone was expecting to conduct business as usual when 2019 transitioned
to 2020. Moreover, the public health orders at issue here are different from
the type of health restrictions typically imposed on restaurants. (See TJM
64, Inc., supra, 475 F.Supp.3d at p. 338 [finding that restaurant owners’
reasonable investment-backed expectations supported a finding of regulatory
taking].)
3. The Character of the Governmental Action
In Penn Central, the Supreme Court explained that regulations
adjusting “the benefits and burdens of economic life to promote the common
good” rather than causing a “physical invasion” of property rarely constitute
a taking. (Penn Central, supra, 438 U.S. at 124). Accordingly, the “character
of the government action” factor focuses on whether the government action
23
Central Eureka Mining Co. (1958) 357 U.S. 155 involved an order shutting
down a gold mine deemed nonessential during wartime. The Court stated,
“the mere fact that the regulation deprives the property owner of the most
profitable use of his property is not necessarily enough to establish the
owner’s right to compensation.” (Id. at p. 168.) In light of the “temporary
restriction[ ],” wartime demands on resources, and that the shutdown was
“essential to the war effort,” the Court found no regulatory taking. (Id. at
pp. 168‒169.)
A similar result occurred in Nat’l Amusements, Inc. v. Borough of
Palmyra (3d Cir. 2013) 716 F.3d 57. In that case the government closed an
open-air flea market for five months because live munitions left behind when
the site had been used as an army weapons-testing facility threatened public
safety. Rejecting the owner’s regulatory taking claim, the Court of Appeals
held that the “emergency action to temporarily close” the market constituted
an exercise of the state’s “police power that did not require just
compensation.” (Id. at p. 63.)
Applying the Penn Central analysis, we conclude that the Complaint
fails to allege an actionable regulatory taking. It does not allege the requisite
high degree of economic harm. And although the business restrictions
adversely affected Owners’ reasonable investment-backed expectations, the
Governor’s emergency orders “are quintessential examples of regulations that
‘adjust[ ] the benefits and burdens of economic life to promote the common
good.’ ” (Penn Central, supra, 438 U.S. at p. 124.) The character of these
actions is akin to that of other historical examples of governmental actions
undertaken to counter serious threats to the public that were subsequently
found not to be takings.
24
We thus join a large number of other courts that have reached similar
conclusions applying the Penn Central factors to COVID-19 business
restrictions. (See, e.g., Daugherty Speedway, supra, 520 F.Supp.3d at p. 1078
[noting that “ ‘courts across the country agree that the . . . character of the
disputed government action during the COVID-19 pandemic, weighs heavily
in Defendants’ favor,” and dismissing claim that an order closing a racetrack
was a taking]; TJM 64, supra, 526 F.Supp.3d at p. 338 [dismissing
restaurants’ claim that closure order due to COVID-19 was a regulatory
taking, reasoning “it is undeniable that th[e] exercise of police powers was
intended to promote the common good in response to a global pandemic that
impacted public safety and the economy across the country[,] [and] the
Closure Order was an effort to ‘adjust[ ] the benefits and burdens of economic
life to promote the common good’ ”]; Bimber’s Delwood, supra, 496 F.Supp.3d
at p. 784 [“the character of the government action here is a temporary
exercise of the police power to protect the health and safety of the
community, which weighs against a taking”]; Leb. Valley Auto Racing Corp.
v. Cuomo (N.D.N.Y. 2020) 478 F.Supp.3d 389, 402 [racetrack owner’s
challenge to order prohibiting spectators or fans failed to state takings claim
where the government “shifted the ‘benefits and burdens of economic life’ in
an effort to keep its citizens safe during a deadly pandemic”].) The superior
court correctly sustained the demurrers to the fifth cause of action.
contain any cause of action alleging due process violation(s). 16 And although
the three-page “Introduction” to the Complaint asserts the state defendants
committed “due process violations,” that is a legal conclusion and not
contained in the actual charging allegations. On our own, we have scoured
the Complaint to see if it alleges a cognizable due process claim. The first
cause of action for “Declaratory Judgment” includes in various places
authority 17—it also fails on the merits. Like California, Minnesota law
empowers the governor of that state to declare an emergency and make
“orders” to carry out the provisions of the statute. (See Buzzell v. Walz
28
We find this analysis persuasive. To the extent the Complaint purports
to allege a compensable “ ‘commandeering’ ” under the Emergency Services
Act, it fails to state facts constituting a cause of action.
F. No Leave to Amend
Finally, Owners ask for leave to amend the Complaint. However,
although they may seek leave to amend even for the first time on appeal
(Code Civ. Proc., § 472c, subd. (a)), it is their burden to “show in what
manner [they] can amend [their] complaint and how that amendment will
change the legal effect of [their] pleading.” (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) In asking that we grant leave to amend, Owners simply
state that “common sense, due process and fair play unanimously require an
DATO, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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