Full Circle of Living and Dying v. Sanchez ( 2024 )

1 INSTITUTE FOR JUSTICE ROB BONTA Jeffrey Rowes (admitted pro hac vice) Attorney General of California 2 816 Congress Ave., Suite 960 DIANN SOKOLOFF, State Bar No. 161082 3 Austin, TX 78701 S JUu Lp Ie Ar Nvi Ns Ein Mg OD Se Sp Lu Et Ry , A St tt ao tern Bey a rG Ne on .e 2ra 4l 9 743 (512) 480-5936 Deputy Attorney General 4 jrowes@ij.org 1515 Clay Street, 20th Floor P.O. Box 70550 5 Benjamin A. Field (admitted pro hac vice) Oakland, CA 94612-0550 901 N. Glebe Rd., Suite 900 Telephone: (510) 879-1349 6 Arlington, VA 22203 Fax: (510) 622-2270 7 (703) 682-9320 E -mail: Julianne.Mossler@doj.ca.gov bfield@ij.org Attorneys for Defendants Gina Sanchez, 8 Kimberly Kirchmeyer, and Lourdes Castro PILLSBURY WINTHROP SHAW PITTMAN LLP Ramirez 9 Thomas V. Loran III (CA Bar No. 95255) Four Embarcadero Center, 22nd Floor 10 San Francisco, CA 94111 11 (415) 983-1865 thomas.loran@pillsburylaw.com 12 Derek M. Mayor (CA Bar No. 307171) 13 500 Capitol Mall, Suite 1800 Sacramento, CA 95814 14 (916) 329-4703 15 derek.mayor@pillsburylaw.com 16 Attorneys for Plaintiffs Full Circle of Living and Dying; Bonnie “Akhila” Murphy; Donna 17 Peizer; Pamela Yazell; Kay Hogan; Janaia Donaldson; and Robin Mallgren 18 UNITED STATES DISTRICT COURT 19 EASTERN DISTRICT OF CALIFORNIA 20 21 Full Circle of Living and No. 2:20-cv-01306-KJM-KJN Dying, et al., 22 Plaintiffs, CONSENT ORDER 23 v. 24 Gina Sanchez in her official capacity as Bureau Chief of the Cemetery and Funeral 25 Bureau, et al., 26 Defendants. 27 28 1 1. The court has subject matter jurisdiction over this action under 28 U.S.C. § 1331, 2 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the U.S. Constitution. 3 2. Venue is proper in the Eastern District of California under 28 U.S.C. § 1391 4 because defendant officials of the State of California may be found within the District in 5 Sacramento. 6 3. Plaintiffs have standing. 7 4. On January 24, 2023, the court entered an order on the parties’ cross-motions for 8 summary judgment, which granted judgment and a permanent injunction. Summ. J. Order, ECF 9 No. 63. 10 5. The court entered a permanent injunction on February 13, 2023, reflecting the 11 conclusions from the summary-judgment order and the parties’ agreed language for the terms of 12 the permanent injunction. Permanent Inj., ECF No. 65. 13 6. The parties agree that the summary-judgment order and permanent injunction shall 14 remain in full effect as to all issues not reserved for trial. The parties do not intend to alter the 15 court’s order or permanent injunction, and they intend for the order and permanent injunction to 16 remain fully enforceable by this court. 17 7. In its summary-judgment order, the court denied summary judgment to both parties 18 and reserved for trial the issue of whether the Cemetery and Funeral Bureau can cite Full Circle’s 19 doulas for acting as unlicensed funeral directors when they provide “hands-on” services. Summ. 20 J. Order at 29, 31–32. As reflected in the court’s final pretrial order, that issue turned on two 21 questions: “(1) whether Full Circle’s doulas are subject to funeral-director licensure when they 22 assist with home funerals, such as when they help wash, dress, reposition, and place a cooling 23 mechanism (e.g., dry ice), around a body, and when they procure cooling mechanisms for families 24 of the deceased; and (2) whether the United States Constitution permits requiring Full Circle’s 25 doulas to be licensed funeral directors to provide those services.” Final Pretrial Order at 7, ECF 26 No. 72. 27 8. The parties have reached a complete agreement as to the first question. None of 28 Full Circle’s hands-on activities described in paragraph 9 fall within the statutory requirements to 1 obtain a funeral-director license under Business and Professions Code § 7615, when performed 2 consistent with the conditions described in paragraphs 9 and 10. Thus, the Bureau (on behalf of 3 all Defendants) has agreed that it will not cite or take other adverse action against Full Circle and 4 its doulas for performing the hands-on activities described in paragraphs 9 and 10 without funeral- 5 director licenses. Nor will the Bureau cite Full Circle and its doulas for advertising the hands-on 6 activities described in paragraphs 9 and 10, or for offering guidance about how to perform such 7 activities. 8 9. Specifically, the parties agree that Full Circle and its doulas perform the following 9 hands-on services, see Summ. J. Order at 21: 10 a. Relocating or positioning the body of the deceased within a home; 11 b. Washing the body; 12 c. Dressing the body; 13 d. Placing a cooling mechanism (e.g., dry ice) around the body; and 14 e. Procuring cooling mechanisms for families of the deceased. 15 10. Defendants agree that these hands-on activities fall outside the scope of Business 16 and Professions Code section 7615 under the following circumstances: 17 a. The activities are performed to prepare for a funeral conducted at a home 18 that is not a funeral establishment. 19 b. The activities are performed at the direction of, or on behalf of, a person 20 with the right to control the disposition of a decedent’s remains pursuant to 21 Health and Safety Code section 7100. 22 c. Full Circle and its doulas do not otherwise prepare, direct, or supervise the 23 burial or disposal of human remains. 24 11. Because the parties agree that the funeral-licensing statutes do not require Full 25 Circle and its doulas to become individually licensed as funeral directors when performing 26 activities consistent with paragraphs 9 and 10, the second question reserved for trial—does such a 27 requirement violate the U.S. Constitution—is now moot. 28 ] 12. The parties agree that defendants will pay plaintiffs $525,000, which resolves any 2 | claim for attorneys’ fees. Defendants shall make such payment upon certification of the funds or 3 || approval by the California Department of Finance, on or before 120 days after entry of this order. 4 || If, however, payment has not been made within that time, defendants shall owe nothing pursuant 5 || to this paragraph and plaintiffs may move this court for an award of fees pursuant to 42 U.S.C. 6 || § 1988. Accordingly, the deadline for any fees motion is extended to 180 days from entry of this 7 || order, pursuant to Federal Rule of Civil Procedure 54(d)(2). 8 13. The parties stipulate, and the court agrees, that entry of this consent order fully 9 || resolves this case. The parties agree not to appeal the summary-judgment order, permanent 10 || injunction, entry of this consent order, or any other aspect of this action. 11 14. The court shall retain jurisdiction to monitor and enforce the terms of the parties’ 12 || agreement. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994); K.C. ex rel. 13 | Erica C. v. Torlakson, 762 F.3d 963, 967 (9th Cir. 2014). 14 15. This consent order constitutes a final judgment for the purposes of Rule 58 and 15 || terminates this case, except insofar as the court retains jurisdiction to enforce its terms. 16 IT IS SO ORDERED. 17 | DATED: January 17, 2024. 19 50 CHIEF ED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 -4- PERMANENT INJUNCTION