By Craig Clough

Law360 (February 18, 2021, 7:47 PM EST ) California Gov. Gavin Newsom and other state leaders on Wednesday urged a federal judge to toss a suit challenging coronavirus regulations that temporarily closed barber shops and other cosmetology businesses, arguing they are protected under sovereign immunity and the restrictions are legal exertions of power during a health emergency.

The state leaders said the proposed class action must be dismissed because sovereign immunity bars all of the claims brought by Tatoma Inc., including state-law claims, Takings Clause claims and claims for damages, all of which would also fail as a matter of law.

"The challenged public health orders pass constitutional muster as a permissible exercise of the state's emergency authority in a pandemic, and plaintiff has failed to allege any cognizable infringements on its rights," the officials said.

Tatoma operates Atelier Aucoin Salon in La Jolla, California, and filed the suit in January against the governor, Attorney General Xavier Becerra and Executive Officer of the State Board of Barbering and Cosmetology Kristy Underwood, alleging state-issued shutdown orders for barbers, hair salons and other cosmetology-based businesses violate the Fifth and 14th Amendments, as well as various state laws.

Tatoma argued that because the orders closing the businesses rendered state-issued barber and cosmetology licenses obsolete for a public benefit, the state seized their property without compensation in violation of the Takings Clause of the Fifth Amendment.

The lawsuit outlined various pandemic-related orders issued by Newsom since March that shuttered barbers, beauty salons and nail salons while deeming them "non-essential" businesses, including the latest one on Dec. 29. Tatoma argued the orders are "arbitrary and capricious," in violation of the 14th Amendment.

Many other businesses with questionable "essential" value have been allowed to continue operations with limited capacity, while those in the cosmetology industry have not, Tatoma said.

Newsom and the other officials defended the shutdown orders in their motion to dismiss, arguing the actions were a reasonable exertion of their lawful power during a declared public health emergency.

"Indeed, every federal court to consider a challenge to these orders, either on a motion to dismiss or on a motion for a preliminary injunction, has recognized they do," the officials said.

Tatoma also did not plausibly argue that it suffered any constitutional violations or illegal seizure of its property, the officials said, pointing out that the governor lifted the ban on indoor barber shops and cosmetology businesses days after the Jan. 19 lawsuit was filed.

"Rather than being completely prohibited from pursuing its vocation, plaintiff, like all other hair salons in COVID-affected areas of California, was required to temporarily cease indoor salon services at various times over the course of the last year," the officials said. "In fact, plaintiff is currently open and not prohibited from pursuing its chosen vocation. Accordingly, since plaintiff was never completely prohibited from engaging in its calling, plaintiff has 'not been deprived of a protected liberty interest in pursuing the occupation of [its] choice.'"

The officials cited the Ninth Circuit's 2009 ruling ruling in Guzman v. Shewry , which they said held that a liberty charge "must constitute more than a brief interruption of a plaintiff's ability to pursue an occupation or profession."

The officials said that the 11th Amendment confirms a state is immune from a lawsuit brought in federal court by its own citizens or citizens of other states.

The officials added that an exception to state sovereign immunity, established in the U.S. Supreme Court's 1908 Ex Parte Young ruling, would not apply to the plaintiff's first and second causes of action for alleged violations of the Fourteenth Amendment because the Young ruling does not apply to suits seeking monetary damages, which they said is the only relief the plaintiff is seeking.

Counsel for the parties did not immediately respond to requests for comment.

The defendants are represented by Jodi L. Cleesattle of the California Attorney General's office.

Tatoma is represented by Francis A. Bottini Jr., Albert Y. Chang and Anne Beste of Bottini & Bottini, Inc.

The case is Tatoma Inc. v. Gavin Newsom et al., case number 3:21-cv-00098, in the U.S. District Court for the Southern District of California.

--Editing by Regan Estes.

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