1 STEPHEN C. GREBING, State Bar No. 178046 [email protected] 2 IAN R. FRIEDMAN, State Bar No. 292390 3 [email protected] WINGERT GREBING BRUBAKER & JUSKIE LLP 4 One America Plaza, Suite 1200 600 West Broadway 5 San Diego, CA 92101 (619) 232-8151; Fax (619) 232-4665 6 7 Attorneys for Plaintiffs NICHOLAS GARDINERA and CAMERON WOOLSEY 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO – NORTH COUNTY DIVISION 10 NICHOLAS GARDINERA, by and through his Case No.: 11 Guardian Ad Litem MARLON GARDINERA, and CAMERON WOOLSEY, by and through his IMAGED FILE 12 Guardian Ad Litem RICHARD WOOLSEY, COMPLAINT FOR: 13 Plaintiffs/Petitioners, (1) VIOLATION OF THE EQUAL 14 vs. PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE 15 COUNTY OF SAN DIEGO, a governmental UNITED STATES CONSTITUTION agency; WILMA J. WOOTEN, in her official AND VIOLATION OF ARTICLE 1, 16 capacity as Public Health Officer, County of San SECTION 7 OF THE CALIFORNIA Diego; GOVERNOR GAVIN NEWSOM, in his CONSTITUTION; AND 17 official capacity as the Governor of the State of California; the CALIFORNIA DEPARTMENT (2) WRIT OF MANDAMUS (CCP §1085) 18 OF PUBLIC HEALTH, a department of the State of California; and DOES 1 through 100, Dept: 19 inclusive, Judge: WINGERT GREBING BRUBAKER & JUSKIE LLP 20 Defendants/Respondents. Action Filed: Trial Date: 21 22 COMES NOW Plaintiffs/Petitioners NICHOLAS GARDINERA and CAMERON WOOLSEY 23 and allege as follows: 24 INTRODUCTION 25 In March 2020, California Governor Newsom issued a series of disaster declarations, executive 26 orders, rules, and regulations responding to an outbreak of a novel coronavirus (COVID-19) which the 27 World Health Organization (“WHO”) and the Center for Disease Control (“CDC”) declared a 28 pandemic. Because COVID-19 was novel, very little was known about it in the medical community, {00748960.DOCX} 1 COMPLAINT – Case No. 1 and therefore the responses of different governments around the world, and different states, counties, 2 and cities within the United States, have varied and evolved over time. Some of the changes in the 3 responses were driven by the increasing knowledge about COVID-19 and other changes were driven 4 by politics and the political concerns of elected officials. Even as late as January 25, 2021, 5 California’s response to the pandemic dramatically changed when the previously instituted and 6 enforced state-wide stay at home order was immediately rescinded with little rationale given. 7 Plaintiffs seek relief on a narrow issue. They do not challenge the Governor’s authority to 8 issue COVID-19 disaster declarations or executive orders. Neither are they asking the Court to decide 9 any of the myriad of legitimate questions raised by the unprecedented and extremely broad executive 10 authority being exercised by the Governor and the executive branch of State of California. The 11 declarations, orders, rules and regulations issued by the Governor addressed in this case concern the 12 cancelation and/or indefinite delay of the fall/winter/spring 2020-2021 high school sports season for all 13 sports, including football, basketball, baseball, softball, volleyball. soccer, lacrosse, hockey and other 14 sports. 15 The State of California and County of San Diego declarations, orders, rules and/or 16 regulations arbitrarily prohibit playing high school fall/winter/spring sports while at the same time 17 allowing some of these sports (or sports with increased contact) to be played by professional and 18 college sports teams in this County and throughout the state. This County and the State allow college 19 and/or professional sports organizations to play competitive games in the County if they follow the WINGERT GREBING BRUBAKER & JUSKIE LLP 20 State’s COVID-19 protocols designed for team sports. The COVID-19 protocols the State and County 21 deemed sufficient to allow colleges and professionals to play competitive sports include socially 22 distancing, mask wearing for non-participants, temperature and symptoms screening, contact tracing, 23 regular cleaning of surfaces, limited/no crowd attendance and the like. The State and County never 24 permitted high school team sports to use the same protocols to engage in competition. 25 With this as our premise, we argue there is no rational or reasonable basis to prohibit playing 26 high school sports if the high school athletes/teams follow the same protocols under which the State 27 and County have permitted professional and college sports to compete – largely without incident as it 28 {00748960.DOCX} 2 COMPLAINT – Case No. 1 relates to COVID-19. If a sport is safe for college students to play when following certain protocols, it 2 is no less safe were high school student athletes to follow those same protocols. 3 A bedrock principle which underlies the Constitution and laws of the State of California is that 4 the citizens of California are free to live their lives in any manner they deem fit, and that any 5 governmental law, rule or regulation restricting those freedoms must not restrict the freedoms of one 6 group while not restricting other similarly situated groups unless there is a rational basis connected to a 7 legitimate governmental interest justifying the disparate treatment. This principle is enshrined in the 8 equal protection clause of the California Constitution. In violation of this principle and the equal 9 protection clause, the different treatments of high school sports and college/professional sports in the 10 Governor’s Blueprint for a Safer Economy and associated COVID-19 Industry Guidance for “Sporting 11 Events at Outdoor Stadiums and Racetracks” and guidance for “Outdoor and Indoor Youth and 12 Recreational Adult Sports” are arbitrary, irrational, and bear no relation to reducing the spread of, or 13 remediating the risks posed by, the COVID-19 virus through competition in the identified sports. 14 There is no medical evidence that competing in team sports is safe for college and/or professional 15 athletes but not high school athletes. 16 As of the date of the filing of this action, only 3 states (California, Hawaii and Nevada) prohibit 17 playing high school sports. All 47 other states have allowed high school sports to be played to the 18 benefit of millions of high school students and future college student athletes. Plaintiffs know of no 19 evidence that allowing high school sports has led to an increase in COVID-19 transmission or WINGERT GREBING BRUBAKER & JUSKIE LLP 20 hospitalization in any of those 47 states. 21 For its part, the California Interscholastic Federation (“CIF”) is responsible for the governance 22 and oversight of high school sports. It operates exclusively under the authority of the California 23 Department of Education, controlled by Governor Newsom. The Department of Education and CIF 24 have stated they will follow the Governor’s instruction, the orders of the CDPH and the orders of the 25 County of San Diego with respect to whether sanctioned high school sports will be played. With this 26 in mind, neither the Department of Education nor CIF were named parties to this action because they 27 will abide by any directive on the playing high school sports as may be issued by this Court to the State 28 {00748960.DOCX} 3 COMPLAINT – Case No. 1 and County. If this is incorrect, Plaintiffs will immediately seek to add the Department of Education 2 and CIF as parties to this litigation. 3 This is the only case Plaintiffs are aware of challenging the Governor’s restrictions on playing 4 high school sports under equal protection grounds outlined in the Constitution of the State of 5 California. Other recent decisions of the California appellate and U.S. Southern District of California 6 addressing the Governor’s powers during the COVID-19 pandemic as to restrictions placed on other 7 certain businesses (restaurants) or activities (worship) are based on Constitutionally guaranteed rights 8 and do not concern the restrictions the Governor has placed on high school sports in violation of equal 9 protection under the Constitutions of the United States and the State of California. We believe this is a 10 case of first impression during the COVID-19 pandemic. 11 PARTIES AND VENUE 12 1. At all times mentioned herein, Plaintiff/Petitioner NICHOLAS GARDINERA, by and 13 through his Guardian Ad Litem MARLON GARDINERA, is a person of minor age residing within the 14 City of San Diego, County of San Diego, State of California. 15 2. At all times mentioned herein, Plaintiff/Petitioner CAMERON WOOLSEY, by and 16 through his Guardian Ad Litem RICHARD WOOLSEY, is a person of minor age residing within the 17 City of San Diego, County of San Diego, State of California. 18 3. Defendant/Respondent the County of San Diego (the “County”) is and at all times 19 mentioned herein was a governmental agency operating in the State of California, County of San WINGERT GREBING BRUBAKER & JUSKIE LLP 20 Diego, City of San Diego, and is directly responsible for the orders, actions, and directives at issue in 21 this Complaint. 22 4. Defendant/Respondent Wilma J. Wooten (“Dr. Wooten”) is the County’s Public Health 23 Officer. Dr. Wooten signed the orders at issue in this Complaint and Plaintiff is informed and believes, 24 and based thereon alleges, Dr. Wooten is responsible for devising, enacting, enforcing, and interpreting 25 the orders and directives she issues in her official capacity with the County, and that she is also 26 responsible for interpreting the orders of the State of California concerning the COVID-19 “stay-at-home” 27 and closure orders as applicable to the City of San Diego and the County. 28 {00748960.DOCX} 4 COMPLAINT – Case No.