People v. Calvary Chapel San Jose ( 2022 )

Filed 8/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, et al., H048708
(Santa Clara County
Plaintiffs and Respondents, Super. Ct. No. 20CV372285)
v.
CALVARY CHAPEL SAN JOSE et al.,
Defendants and Appellants.
H048734
CALVARY CHAPEL SAN JOSE, et al., (Santa Clara County
Super. Ct. No. 20CV372285)
Petitioners,
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE, et al.,
Real Parties in Interest.
MIKE MCCLURE, et al., H048947
(Santa Clara County
Petitioners, Super. Ct. No. 20CV372285)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE, et al.,
Real Parties in Interest.
I. INTRODUCTION
In 2020 the State of California and the County of Santa Clara (collectively, the
People) issued a series of public health orders intended to combat the Covid-19 pandemic.
Relevant here, the public health orders included orders restricting indoor gatherings and
requiring face coverings, social distancing, and submission of a social distancing protocol
by businesses, including churches. Calvary Chapel San Jose (Calvary Chapel) and its
pastors, Mike McClure and Carson Atherley (collectively, Calvary Chapel), failed to
comply with any of these public health orders.
Due to Calvary Chapel’s ongoing failure to comply with the public health orders,
the People filed a complaint for injunctive relief. The trial court issued a November 2,
2020 temporary restraining order, followed by a November 24, 2020 modified temporary
restraining order and preliminary injunction that enjoined Calvary Chapel from holding
indoor gatherings that did not comply with the public health orders’ restrictions on indoor
gatherings and requirements that participants wear face coverings and socially distance.
Calvary Chapel was also enjoined from operating without submitting a social distancing
protocol to the County.
It is undisputed that Calvary Chapel violated the November 2, 2020 temporary
restraining order, the November 24, 2020 modified temporary restraining order, and the
2
preliminary injunction by failing to comply with any of the public health orders. The
People then sought an order of contempt, which the trial court issued on December 17,
2020, based on Calvary Chapel’s violation of the November 2, 2020 temporary restraining
order and preliminary injunction. The trial court also issued a February 16, 2021 order of
contempt, based on Calvary Chapel’s violation of the November 24, 2020 modified
temporary restraining order. The trial court additionally ordered Calvary Chapel,
McClure, and Atherley to pay monetary sanctions pursuant to Code of Civil Procedure
section 177.5 1 for violation of the court’s orders, and pursuant to section 1218,
subdivision (a) for contempt of court.
Calvary Chapel now seeks review of the trial court’s contempt orders and orders to
pay monetary sanctions in the three cases before us, including H048708, People v.
Calvary Chapel; H048734, Calvary Chapel v. Superior Court; and H048947, McClure v.
Superior Court. 2 For the reasons stated below, we conclude that the temporary restraining
orders and preliminary injunctions are facially unconstitutional pursuant to the recent
guidance of the United States Supreme Court regarding the First Amendment’s protection
of the free exercise of religion in the context of public health orders that impact religious
practice (see, e.g., Tandon v. Newsom (2021) 593 U.S. __ [141 S. Ct. 1294] (Tandon).)
As the underlying orders which Calvary Chapel violated are void and unenforceable, we
will annul the orders of contempt in their entirety and reverse the orders to pay monetary
sanctions. (See In re Berry (1968) 68 Cal.2d 127, 140, 157 (Berry).)
1
All subsequent undesignated statutory references are to the Code of Civil
Procedure.
2
On the court’s own motion, we ordered case Nos. H048708, H048734, and
H048947 to be considered together for purposes of oral argument and disposition.
3
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Preliminary Injunction
1. The Complaint
In October 2020 plaintiffs the People of the State of California, the County of Santa
Clara (County), and Sara H. Cody, M.D. (Dr. Cody) in her official capacity as Health
Officer for the County of Santa Clara, filed a complaint for injunctive relief against
defendants Calvary Chapel and its senior pastor, Mike McClure (collectively Calvary
Chapel).
Plaintiffs alleged that Calvary Chapel had failed to comply with certain state and
county public health orders that had been issued to protect the public during the COVID-
19 pandemic at a time when no cure or vaccine was available. Plaintiffs asserted that
“[t]he best way to protect the public from COVID-19 is to undertake risk-mitigation
measures to prevent transmission and infection, such as avoiding indoor gatherings,
wearing face coverings, keeping sufficient physical distance, and avoiding singing or
shouting near others while indoors.” Plaintiffs further asserted that the evidence had
shown that indoor gatherings posed a greater risk of COVID-19 transmission, since the
virus spread from person to person through respiratory droplets, and that “[c]hurch
gatherings are a common source of ‘superspreader’ events.”
The specific public health orders that Calvary Chapel had violated included,
according to plaintiffs, the following orders: (1) the County’s July 2, 2020 risk reduction
order requiring all businesses to submit a social distancing protocol, requiring all persons
to maintain a minimum distance of six feet from persons outside their household,
requiring all persons within a business (including a church) to wear face coverings unless
medically exempt, and imposing limitations on gatherings as subsequently directed by
Dr. Cody; (2) Dr. Cody’s gatherings directives, as revised from July 8, 2020, through
September 8, 2020, that prohibited indoor gatherings that brought “together multiple
people from separate households in a single space,” such as religious services, and
4
required face coverings for outdoor gatherings unless medically exempt; (3) the State’s
August 28, 2020 order implementing the “Blueprint for a Safer Economy,” a tiered system
for modifying public health measures based on Covid-19 test and case rates, which placed
the County in the most restrictive Tier 1 (prohibiting indoor gatherings) prior to
September 8, 2020, and then in the less restrictive Tier III (imposing capacity limitations
on gatherings of 25% capacity or 100 persons, whichever was fewer); (4) the County’s
October 5, 2020 revised risk reduction order, which applied to all activities and sectors
and required submission of a social distancing protocol, wearing face coverings at all
times (including inside churches), and maintaining six feet of social distance from persons
outside one’s household; and (5) Dr. Cody’s October 13, 2020 revised gatherings
directive, which allowed indoor gatherings with a capacity limitation of 25% or 100
persons, whichever was fewer, and continued to prohibit indoor singing.
To authorize enforcement of these and other pandemic-related public health orders,
on August 11, 2020, the County’s Board of Supervisors adopted Urgency Ordinance
No. NS-9.921, which created “a comprehensive civil enforcement program to combat the
spread of COVID-19.” The Urgency Ordinance included a schedule of fines for violation
of the public health orders, as confirmed or observed by the County’s code enforcement
officers during their investigation of public complaints.
After receiving a complaint about Calvary Chapel, the County issued an August 21,
2020 cease and desist letter that demanded that Calvary Chapel comply with the public
health orders and cease to hold indoor gatherings. Calvary Chapel allegedly failed to
comply with the cease-and-desist letter. After the County’s code enforcement officers’
investigations revealed that Calvary Chapel had continued to violate the public health
orders, they issued a series of notices of violation of health officer orders from August 23,
2020, to October 25, 2020. According to plaintiffs, Calvary Chapel has accrued more than
$350,000 in fines that were imposed by the County due to Calvary Chapel’s unlawful
5
public gatherings and violations of the requirements for social distancing, face coverings,
and submission of a social distancing protocol. 3
Based on these and other allegations, including defendant McClure’s statement in
the local newspaper, the San Jose Mercury News, that Calvary Chapel would not comply
with the public health orders, plaintiffs sought a temporary restraining order, a preliminary
injunction, and a permanent injunction to enjoin Calvary Chapel “from conducting any
gathering or service that does not fully comply with relevant State and County public
health orders, including the Risk Reduction Order, the Gatherings Directive, the State
August 28 Order, the Revised Risk Reduction Order, and the Revised Gatherings
Directive.”
2. November 2, 2020 Temporary Restraining Order
After filing their complaint, plaintiffs applied for a temporary restraining order and
an order to show cause why a preliminary injunction should not issue. The trial court
granted the application in the November 2, 2020 order.
The temporary restraining order included in the November 2, 2020 order enjoined
Calvary Chapel from “1. Conducting any gathering that does not fully comply with both
the State and County public health orders, including but not limited to: holding gatherings
indoors in excess of 100 people or 25% of capacity, whichever is less; holding outdoor
gatherings in excess of 200 people; allowing participants to attend gatherings without
wearing face coverings; allowing participants to attend gatherings without maintaining
adequate social distance; and allowing singing at indoor gatherings; [¶] 2. Operating,
whether indoors or outdoors, without the prior submission and implementation of a Social
Distancing Protocol.” The November 2, 2020 order also included an order to show cause
3
The record reflects that the County issued a notice of imposition of fines in the
amount of $357,750 to Calvary Chapel on October 26, 2020, for violation of the public
health orders. These fines are not at issue in the present appeal.
6
why a preliminary injunction should not issue enjoining Calvary Chapel as set forth in the
temporary restraining order.
Additionally, the November 2, 2020 order directed the County to post the
temporary restraining order on the Calvary Chapel property and authorized County
personnel to enter the Calvary Chapel property to monitor compliance with the order.
3. November 24, 2020 Modified Temporary Restraining Order
Plaintiffs subsequently applied for modification of the November 2, 2020
temporary restraining order on the grounds that the County had been moved to the more
restrictive Tier I of the State’s Blueprint for a Safer Economy, which prohibited indoor
gatherings, including worship services, due to increasing Covid case counts. The trial
court granted the application in the November 24, 2020 order.
The November 24, 2020 modified temporary restraining order enjoined Calvary
Chapel from the following: “1. Conducting any gathering that does not fully comply with
both the State and County public health orders, including but not limited to, complying
with prohibitions on: holding gatherings indoors; holding outdoor gatherings in excess of
200 people; allowing participants to attend gatherings without wearing face coverings;
allowing participants to attend gatherings without maintaining adequate social distance of
no less than six feet; allowing singing or chanting at indoor gatherings; and [¶] 2.
Operating, whether indoors or outdoors, without the prior submission and implementation
of a Social Distancing Protocol.”
Additionally, the November 24, 2020 modified temporary restraining order directed
the County to post the order on Calvary Chapel property, ordered Calvary Chapel not to
remove the order once it was posted on Calvary Chapel property, and authorized the
County personnel to enter Calvary Chapel property to monitor compliance with the order.
4. Preliminary Injunction
After investigation by the County’s code enforcement officers showed that Calvary
Chapel was continuing to violate the public health orders by holding large indoor worship
7
services every Sunday without enforcing either the capacity limitations, the social
distancing and face covering requirements, or the prohibition on singing, plaintiffs moved
for a preliminary injunction. Plaintiffs sought to enjoin Calvary Chapel from “(1) holding
or hosting indoor gatherings at their facilities that exceed 100 persons or 25% capacity,
whichever is smaller, (2) allowing non-exempt persons to attend their indoor gatherings
without face coverings, (3) allowing persons to attend their indoor gatherings without
social distancing, (4) permitting singing indoors, and (5) failing to submit a Social
Distancing Protocol.”
The trial court granted the motion for a preliminary injunction in the December 4,
2020 order. In so ruling, the trial court rejected Calvary Chapel’s argument that the public
health orders violated the Free Exercise Clause of the First Amendment. The court
determined that “the restrictions on ‘indoor gatherings’ are not specifically targeted at
non-secular gatherings as they are generally applicable to both secular and non-secular
indoor gatherings such as movie theatres, political gatherings, cultural events, community
meetings, cardrooms, gyms, weddings, funerals, etc. These are gatherings where
individuals have sustained indoor contact with other attendees as opposed to grocery or
retail stores where contact is far more limited in duration. As these public health orders
apply to both secular and non-secular gatherings, the Court finds that they are subject to a
rational basis review and concludes that they are rationally related to a legitimate
governmental interest—protecting public health and safety.” The court also distinguished
the recent United States Supreme Court decision in Roman Catholic Diocese of Brooklyn
v. Cuomo (2020) 592 U.S. __ [141 S. Ct 63] (Roman Catholic Diocese), since the
occupancy limits the Supreme Court found unconstitutional in that case appeared to target
places of worship, and the plaintiff religious institutions had complied with all other
public safety orders.
Nearly one year later, in the October 14, 2021 order, the trial court granted in part
and denied in part Calvary Chapel’s motion to dissolve the preliminary injunction. The
8
motion was denied in part because the trial court deemed the preliminary injunction to
remain in effect as to all currently operative public health orders relating to Covid-19.
The motion was granted as to public health orders “that were at issue at the time that the
preliminary injunction was granted but have been rescinded and were, as of the date of the
hearing on the Motion, no longer in effect (e.g., holding gatherings indoors, holding
outdoor gatherings in excess of 200 people, allowing participants to attend gatherings
without maintaining adequate social distance of no less than six feet, allowing singing or
chanting at indoor gatherings).”
B. December 17, 2020 Order of Contempt
In November 2020 plaintiffs applied for an order to show cause re: contempt
and/or sanctions, in which they alleged that Calvary Chapel had violated the November 2,
2020 temporary restraining order every day since the order issued, and sought an order of
contempt, monetary sanctions, and attorney’s fees and costs. The alleged violations
included indoor gatherings that exceeded the capacity limitations and where the attendees
did not wear face coverings, did not socially distance, and sang indoors. Further, plaintiffs
asserted that Calvary Chapel had failed to submit a social distancing protocol.
In opposition, Calvary Chapel argued that the November 2, 2020 temporary
restraining order, the November 24, 2020 modified restraining order, and the preliminary
injunction were invalid because each order was unconstitutional on its face and could not
be the basis for a contempt order. Calvary Chapel maintained that under Roman Catholic
Diocese, supra, 592 US. __ [141 S. Ct. 63], the orders violated the Free Exercise Clause
of the First Amendment because the public health orders’ restrictions on indoor worship
discriminated against churches since the same restrictions did not apply to secular
businesses, such as grocery stores and shopping centers.
After issuing an order to show cause and holding a hearing, the trial court issued
the December 17, 2020 order of contempt. In the order, the trial court made the following
findings of fact: “[Calvary Chapel] willfully violated the [November 2, 2020 temporary
9
restraining order] in contempt of this Court’s order every day from November 2, 2020, to
November 23, 2020, inclusive, by holding indoor gatherings in excess of applicable
capacity limits, permitting indoor gathering attendees to sing, not enforcing or requiring
indoor gathering attendees to wear face coverings, not enforcing or requiring indoor
gathering attendees to socially distance, and/or not submitting a Social Distancing
Protocol to the County of Santa Clara Public Health Department. The Court further finds
true the facts from the Declaration of Mike McClure cited by Plaintiffs’ counsel regarding
Defendant McClure’s admission that Defendants have violated the Court’s orders and that
they intend to continue to violate the Court’s orders.”
As also stated in the December 17, 2020 order, the trial court found that the
November 2, 2020 temporary restraining order “was a lawful court order which the Court
had authority to issue; that [Calvary Chapel] knew of the [temporary restraining order]
that [Calvary Chapel was] capable of obeying the[temporary restraining order]; and that
despite that ability, [Calvary Chapel] willfully disobeyed the [temporary restraining order]
every day from November 2, 2020, to November 23, 2020, inclusive . . . . The Court
further finds that [Calvary Chapel’s] violations of its lawful court order were done without
good cause or substantial justification.”
The trial court therefore found Calvary Chapel to be in contempt of court for
violating the November 2, 2020 temporary restraining order. Calvary Chapel was ordered
to pay a fine of $1,000 per day pursuant to section 1218, subdivision (a) as penalty for the
contempt finding, for a total of a $22,000. Additionally, Calvary Chapel was ordered to
pay a fine of $1,500 per day pursuant to section 177.5 as sanctions for violating the
November 2, 2020 temporary restraining order, for a total of $33,000.
C. February 16, 2021 Order of Contempt
In December 2020 plaintiffs filed an application for an order show cause why
Calvary Chapel and the individual defendants, senior pastor Mike McClure and
administrative pastor Carson Atherley, should not be held in contempt of court for
10
violating the November 24, 2020 modified restraining order and the December 4, 2020
preliminary injunction. Plaintiffs sought monetary sanctions and attorneys’ fees and costs.
Plaintiffs asserted in their application that the evidence showed that Calvary
Chapel’s violations included holding numerous indoor gatherings at which attendees did
not wear face coverings or socially distance, and sang indoors. They also held several
concerts and failed to properly submit a social distancing protocol.
Calvary Chapel opposed the application for an order show cause re contempt and
monetary sanctions, arguing that the November 24, 2020 modified restraining order and
the December 4, 2020 preliminary injunction were unconstitutional in light of the rulings
in Roman Catholic Diocese, supra, 592 U.S. ___ [141 S. Ct. 63], and Harvest Rock
Church v. Newsom (2020) 592 U.S. __ [141 S. Ct 889] (Harvest Rock I), that the public
health orders that impose capacity restrictions on worship services, but not on other
businesses and activities, are not neutral and therefore violate the Free Exercise Clause of
the First Amendment. Calvary Chapel also argued that expert witness testimony could not
justify the discriminatory prohibition on indoor worship.
The trial court issued an order to show cause and after a three-day trial, ruled in the
February 16, 2021 order that Calvary Chapel, McClure, and Atherley were in contempt of
court. As stated in the order of contempt, the trial court found that “that the Calvary
Chapel Defendants . . . willfully violated the modified [temporary restraining order] and
[preliminary injunction] order, . . . . from November 24, 2020, to January 3, 2021,
inclusive, by holding indoor gatherings, permitting staff and attendees to sing at such
gatherings, not enforcing or requiring staff and attendees to wear face coverings at such
gatherings, not enforcing or requiring staff and attendees to socially distance at such
gatherings, and/or not submitting a Social Distancing Protocol to the County of Santa
Clara Public Health Department.”
The trial court also determined that the decisions in Roman Catholic Diocese,
supra, 592 U.S. __ [141 S. Ct. 63] and Harvest Rock I, supra, 592 U.S. __ [141 S. Ct
11
889], were “distinguishable because the County’s public health orders are neutral and
restrict all gatherings without reference to purpose.” The trial court reasoned that these
Supreme Court decisions did not preclude a finding of contempt, since “the contempt
findings are based on multiple violations of the County’s public health orders that were
not disturbed by the Supreme Court . . . including allowing singing at indoor gatherings,
not requiring attendees to wear face coverings or practice social distancing, and not
submitting a Social Distancing Protocol.”
Additionally, the trial court found that the modified temporary restraining order and
preliminary injunction order were lawful court orders that the court had authority to issue,
the Calvary Chapel defendants knew of the modified temporary restraining order and
preliminary injunction, and the Calvary Chapel defendants were capable of obeying both
orders and willfully disobeyed the orders every day from November 24, 2020, to January
3, 2021.
The February 16, 2021 order of contempt also included the following orders
regarding fines: (1) McClure was ordered to pay $15,000 pursuant to section 1218,
subdivision (a) as a penalty for the contempt finding and $22,000 pursuant to
section 177.5 for violating the modified temporary restraining order and preliminary
injunction; (2) Atherley was ordered to pay $11,000 pursuant to section 1218,
subdivision (a) as a penalty for the contempt finding and $16,500 pursuant to
section 177.5 for violating the modified temporary restraining order and preliminary
injunction; and (3) Calvary Chapel was ordered to pay $35,000 pursuant to section 1218,
subdivision (a) as penalty for the contempt finding and $52,500 pursuant to section 177.5
for violating the modified temporary restraining order and preliminary injunction;
(4) Calvary Chapel was ordered to pay $13,000, suspended, pursuant to section 1218,
subdivision (a) as a penalty for the contempt finding (failure to properly submit a
completed social distancing protocol); and (5) Calvary Chapel was ordered to pay
12
$19,500, suspended, pursuant to section 177.5 for failure to properly submit a completed
social distancing protocol.
III. DISCUSSION
We begin our analysis with a chronological overview of the United States Supreme
Court’s per curiam opinions and orders that address public health orders arising from the
pandemic, since the First Amendment principles that we derive from these rulings govern
our review in each of the three cases before us.
A. Rulings of the United States Supreme Court
“The Free Exercise Clause of the First Amendment, applicable to the States under
the Fourteenth Amendment, provides that ‘Congress shall make no law . . . prohibiting the
free exercise’ of religion.” (Fulton v. City of Philadelphia (2021) __ U.S. __ [141 S. Ct.
1868, 1876].) “In addressing the constitutional protection for free exercise of religion, our
cases establish the general proposition that a law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious practice. [Citation.]” (Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U.S. 520, 531.) However,
“[a] law burdening religious practice that is not neutral or not of general application must
undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment,
a law restrictive of religious practice must advance ‘ “ ‘interests of the highest order’ ” ’
and must be narrowly tailored in pursuit of those interests. [Citations.]” (Id. at p. 546.)
During the pandemic, the Supreme Court has considered the First Amendment’s
protection of the free exercise of religion in the context of state and local public health
orders impacting religious practice. In South Bay United Pentecostal Church v. Newsom
(2020) __U.S. __ [140 S. Ct. 1613] (South Bay I), the Supreme Court ruled on an
application for injunctive relief that would permit the South Bay United Pentecostal
Church (South Bay Church) to hold in-person religious services without complying with
the state and County of San Diego public health orders placing capacity limitations on
13
religious services. (See South Bay United Pentecostal Church v. Newsom (9th Cir. 2020)
959 F.3d 938, 939.)
The Supreme Court denied South Bay Church’s application for injunctive relief.
(South Bay I, supra, __ U.S. at p. __ [140 S. Ct. 1613].) In his concurring opinion on the
court’s order, Chief Justice Roberts stated: “Although California’s guidelines place
restrictions on places of worship, those restrictions appear consistent with the Free
Exercise Clause of the First Amendment. Similar or more severe restrictions apply to
comparable secular gatherings, including lectures, concerts, movie showings, spectator
sports, and theatrical performances, where large groups of people gather in close
proximity for extended periods of time. And the Order exempts or treats more leniently
only dissimilar activities, such as operating grocery stores, banks, and laundromats, in
which people neither congregate in large groups nor remain in close proximity for
extended periods.” (Ibid.)
A different public health order was at issue in Roman Catholic Diocese, supra, 592
U.S. __ [141 S. Ct. 63]. In that per curiam opinion, the Supreme Court considered the
executive order of the Governor of New York imposing occupancy limits on attendance at
religious services in certain areas classified as “red” or “orange.” (Id. at p. __.) The
Supreme Court granted the plaintiff religious institutions’ application for injunctive relief
from the occupancy limits on the grounds that the executive order was not neutral. (Id. at
p. __.) Specifically, the high court found that “the regulations cannot be viewed as neutral
because they single out houses of worship for especially harsh treatment. In a red zone,
while a synagogue or church may not admit more than 10 persons, businesses categorized
as ‘essential’ may admit as many people as they wish. And the list of ‘essential’
businesses includes things such as acupuncture facilities, camp grounds, garages, as well
as many whose services are not limited to those that can be regarded as essential, . . . .
The disparate treatment is even more striking in an orange zone. While attendance at
houses of worship is limited to 25 persons, even non-essential businesses may decide for
14
themselves how many persons to admit.” (Roman Catholic Diocese, supra, 592 U.S. __[141 S. Ct. at p. 66].) The court emphasized that “even in a pandemic, the Constitution
cannot be put away and forgotten. The restrictions at issue here, by effectively barring
many from attending religious services, strike at the very heart of the First Amendment’s
guarantee of religious liberty.” (Id. at p. 68.)
In more recent opinions and orders arising from challenges by religious institutions
to the constitutionality of public health orders restricting indoor worship services in
California, the Supreme Court has indicated that the court does not currently view such
orders as neutral and of general applicability despite the restriction applying, as the Chief
Justice stated in his concurring opinion in South Bay I, “to comparable secular
gatherings.” (South Bay I, supra, __ U.S. at p. __ [140 S. Ct. 1613].)
For example, in Harvest Rock I, supra, 592 U.S. ___, 141 S. Ct 889, the lower
federal courts denied the application of plaintiff Harvest Rock Church for injunctive relief
from enforcement of a public health order’s ban on indoor religious services on the
grounds that Harvest Rock Church’s constitutional claim was unlikely to succeed, since
the ban applied to comparable secular indoor gatherings such as lectures and movie
theaters. (Harvest Rock Church v. Newsom (9th Cir. 2020) 977 F.3d 728, 730.)
Harvest Rock Church sought injunctive relief from the Supreme Court, which in an
order remanded the case “to the United States Court of Appeals for the Ninth Circuit with
instructions to remand to the District Court for further consideration in light of Roman
Catholic Diocese [supra,] 592 U.S. ___, 141 S. Ct. 63, 208.” (Harvest Rock Church I,
supra, 592 U.S. at p. ___ [141 S. Ct 889].)
More specific direction was provided by the Supreme Court in a second case
involving Harvest Rock Church, Harvest Rock Church v. Newsom (2021) 592 U.S._ [141
S. Ct. 1289] (Harvest Rock II), where the Supreme Court granted the church’s application
for injunctive relief in part in an order, as follows: “Respondent is enjoined from
enforcing the Blueprint’s Tier 1 prohibition on indoor worship services against the
15
applicants pending disposition of the appeal in the United States Court of Appeals for the
Ninth Circuit . . . Application denied with respect to the percentage capacity limitations,
and respondent is not enjoined from imposing a 25% capacity limitation on indoor
worship services in Tier 1. Application denied with respect to the prohibition on singing
and chanting during indoor services. This order is without prejudice to the applicants
presenting new evidence to the District Court that the State is not applying the percentage
capacity limitations or the prohibition on singing and chanting in a generally applicable
manner.” (Harvest Rock II, supra, 592 U.S. at p. __ [141 S. Ct. at pp. 1289-1290].)
On the same day the Supreme Court issued an order in Harvest Rock II, supra, 592
U.S. ___ [141 S. Ct. 1289], the court issued a nearly identical order in South Bay United
Pentecostal Church v. Newsom (2021) 592 U.S. __ [141 S. Ct. 716] (South Bay II.) The
order states: “Respondents are enjoined from enforcing the Blueprint’s Tier 1 prohibition
on indoor worship services against the applicants pending disposition of the petition for a
writ of certiorari. The application is denied with respect to the percentage capacity
limitations, and respondents are not enjoined from imposing a 25% capacity limitation on
indoor worship services in Tier 1. The application is denied with respect to the
prohibition on singing and chanting during indoor services. This order is without
prejudice to the applicants presenting new evidence to the District Court that the State is
not applying the percentage capacity limitations or the prohibition on singing and chanting
in a generally applicable manner.” (Id. at p. 716.)
Thereafter, in Gateway City Church v. Newsom (2021) 592 U.S. __ [141 S. Ct.
1460] (Gateway City), the Supreme Court stated unequivocally in an order that the Ninth
Circuit’s failure to grant Gateway City Church injunctive relief from the County’s ban on
indoor gatherings was “erroneous.” The Ninth Circuit had ruled that “[t]he challenged
ban on indoor ‘gatherings’ currently in effect for Santa Clara County applies equally to all
indoor gatherings of any kind or type, whether public or private, religious or secular. The
Directive, which appears to affect far more activities than most other jurisdictions’ health
16
measures, does not ‘single out houses of worship’ for worse treatment than secular
activities. [Citation.]” (Gateway City Church v. Newsom (9th Cir. Feb. 12, 2021, No. 21-
15189) 2021 U.S. App. LEXIS 4221.) The Supreme Court granted Gateway City
Church’s application for injunctive relief, stating in the order that “[t]he Ninth Circuit’s
failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s
decision in [South Bay II, supra,] 592 U.S. ___, 141 S. Ct. 716 (2021).” (Gateway City,
supra, 592 U.S. at p. __ [141 S. Ct. 1460].)
The next Supreme Court order to arise from a California public health order
concerned the orders of the state and the counties of Riverside and San Bernadino that
prohibited all public or private indoor gatherings, including church services, but exempted
businesses considered essential, such as courts, medical providers, and daycare providers,
and also exempted necessary shopping at gas stations and stores. (Gish v. Newsom (2021)
592 U.S. __ [141 S. Ct. 1290] (Gish).) The district court and the Ninth Circuit denied the
plaintiffs’ requests for injunctive relief enjoining enforcement of the orders, and the
district court then dismissed the action with prejudice. (Gish v. Newsom (C.D.Cal. Dec.
11, 2020, No. 5:20-cv-00755-JGB-KK) 2020 U.S.Dist.LEXIS 234733; Gish v. Newsom
(9th Cir. Dec. 23, 2020, Nos. 20-55445, 20-56324) 2020 U.S. App. LEXIS 40327.) The
plaintiffs applied to the Supreme Court for injunctive relief. In the order, the Supreme
Court vacated the district court’s dismissal order and remanded the case to the Ninth
Circuit with instructions to remand the case to the district court for further consideration in
light of South Bay II, supra, 592 U.S. __ [141 S. Ct. 716]. (Gish, supra, 592 U.S. __ [141
S. Ct. 1290].)
The Supreme Court then considered California public health orders restricting
private indoor gatherings in a per curiam opinion, Tandon, supra, 593 U.S. __ [141 S. Ct.
1294]. In the underlying action, the district court denied the plaintiffs’ motion for a
preliminary injunction enjoining the state and Santa Clara County’s public health orders
limiting private gatherings to three households. (Tandon v. Newsom (9th Cir. 2021) 992
17
F.3d 916, 917.) The Ninth Circuit similarly denied relief, ruling that “[t]he gatherings
restrictions at issue here do not impose a total ban on all indoor religious services, but
instead limit private indoor and outdoor gatherings to three households. There is no
indication that the State is applying the restrictions to in-home private religious gatherings
any differently than to in-home private secular gatherings.” (Id. at p. 922.)
The United States Supreme Court disagreed and granted the plaintiffs’ application
for injunctive relief pending appeal, stating that “[t]he Ninth Circuit’s failure to grant an
injunction pending appeal was erroneous.” (Tandon, supra, 593 U.S. at p.__, [141 S. Ct.
at p. 1296].) The court further stated that the plaintiffs were likely to succeed on their
Free Exercise claim because (1) “California treats some comparable secular activities
more favorably than at-home religious exercise, permitting hair salons, retail stores,
personal care services, movie theaters, private suites at sporting events and concerts, and
indoor restaurants to bring together more than three households at a time;” and (2) “[T]he
Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than
applicants’ proposed religious exercise at home.” (Id. at p. 1297.)
The Supreme Court concluded in Tandon that “[t]his is the fifth time the Court has
summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on
religious exercise. See [Harvest Rock II, supra,] 592 U. S. ___, 141 S. Ct. 889 (2020);
[South Bay II], 592 U. S. at __, 141 S. Ct. 716; Gish v. Newsom, 592 U. S.__, [141 S. Ct.
1290] (2021); Gateway City, [supra], 592 U.S.___, [__S. Ct.__]. It is unsurprising that
such litigants are entitled to relief. California’s Blueprint System contains myriad
exceptions and accommodations for comparable activities, thus requiring the application
of strict scrutiny.” (Tandon, supra, 593 U.S. at p. __ [141 S. Ct. at pp. 1297–1298].)
From these decisions, we understand the United States Supreme Court to hold that
where a pandemic-related public health order prohibiting indoor gatherings has the effect
of prohibiting indoor worship services, the order is not neutral and of general applicability
if the public health order permits any other type of indoor secular activity, notwithstanding
18
that secular indoor gatherings are also banned. Such public health orders are therefore
unlikely to satisfy strict scrutiny review under the Free Exercise Clause. (South Bay II,
supra, 592 U.S. ___ [141 S. Ct. at p.__]; Tandon, supra, 593 U.S. at p. __ [141 S. Ct.
1294].)
We also understand the United States Supreme Court to have now ruled that public
health orders placing capacity limitations on indoor public gatherings that have the effect
of restricting indoor worship services also are unlikely to satisfy strict scrutiny review
under the Free Exercise Clause where the same capacity limitations do not apply to all
types of indoor secular activity, notwithstanding that secular indoor gatherings are also
restricted. (Tandon, supra, 593 U.S. at p. __ [141 S. Ct. 1294].) We are mindful that in
Tandon, the Supreme Court stated that “at-home religious exercise” was comparable for
purposes of the Free Exercise Clause to “hair salons, retail stores, personal care services,
movie theaters, private suites at sporting events and concerts, and indoor restaurants.”
(Tandon, supra, 593 U.S. at p. __ [141 S. Ct. at p. 1297].)
Having reviewed the pertinent United States Supreme Court rulings in the context
of pandemic-related public health orders and the Free Exercise Clause of the First
Amendment, we now turn to their application in each of the three cases before us. We
note that the trial court did not have the benefit of the Supreme Court’s most recent
guidance when the trial court ruled on the People’s applications for an order to show cause
re contempt and requests for monetary sanctions.
B. H048708 People v. Calvary Chapel
On appeal, Calvary Chapel seeks reversal of that portion of the December 17, 2020
order of contempt requiring Calvary Chapel to pay fines totaling $33,000 pursuant to
section 177.5 as sanctions for violating the November 2, 2020 temporary restraining
19
order. 4 Calvary Chapel argues that the trial court abused its discretion in ordering
payment of fines pursuant to section 177.5 and also committed evidentiary error. 5 We
will begin our analysis with an overview of section 177.5.
1. Section 177.5
Section 177.5 provides in part: “A judicial officer shall have the power to impose
reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500),
notwithstanding any other provision of law, payable to the court, for any violation of a
lawful court order by a person, done without good cause or substantial justification.”
An order imposing sanctions pursuant to section 177.5 is appealable as a final order
on a collateral matter directing the payment of money. (Caldwell v. Samuels Jeweler
(1990) 222 Cal.App.3d 970, 975–976 (Caldwell).) The standard of review for an order
imposing monetary sanctions pursuant to section 177.5 is abuse of discretion. (Id. at
p. 977.) Where “a trial court’s decision is influenced by an erroneous understanding of
applicable law or reflects an unawareness of the full scope of its discretion, it cannot be
said the court has properly exercised its discretion under the law. [Citations.]” (F.T. v.
L.J. (2011) 194 Cal.App.4th 1, 15-16.)
4
The November 2, 2020 temporary restraining order enjoined Calvary Chapel from
“1. Conducting any gathering that does not fully comply with both the State and County
public health orders, including but not limited to: holding gatherings indoors in excess of
100 people or 25% of capacity, whichever is less; holding outdoor gatherings in excess of
200 people; allowing participants to attend gatherings without wearing face coverings;
allowing participants to attend gatherings without maintaining adequate social distance;
and allowing singing at indoor gatherings; [¶] 2. Operating, whether indoors or outdoors,
without the prior submission and implementation of a Social Distancing Protocol.”
5
In its opening brief, Calvary Chapel also argues that the trial court erred in finding
Calvary Chapel to be in contempt. However, an order of contempt is not directly
appealable. (§ 1222; § 904.1, subd. (a)(2); Bermudez v. Municipal Court (1992) 1 Cal.4th
855, 861, fn. 5.) Calvary Chapel also argues that the trial court committed evidentiary
error in making the contempt ruling on the basis of witness declarations and denying it the
opportunity to call live witnesses. We will address Calvary Chapel’s contentions
regarding the contempt orders in the companion cases, H048734, Calvary Chapel v.
Superior Court, and H048947, McClure v. Superior Court, infra.
20
2. The Parties’ Contentions
Calvary Chapel does not dispute that it violated the November 2, 2020 temporary
restraining order. We understand Calvary Chapel to argue, however, that the trial court
abused its discretion in ordering sanctions under section 177.5 because the November 2,
2020 temporary restraining order was not a lawful court order. According to Calvary
Chapel, the capacity limitations in the November 2, 2020 order that enjoined Calvary
Chapel from “holding gatherings indoors in excess of 100 people or 25% of capacity,
whichever is less” are unconstitutional under Roman Catholic Diocese, supra, 592 U.S. __[141 S. Ct 63], because the capacity limitations were based on the County’s October 13,
2020 revised gatherings directive, which applied to churches but “exempted bus stations,
airports, grocery stores, restaurants, office buildings, and retail stores.” 6 Calvary Chapel
also argues that the public health orders requiring face coverings and social distancing are
unconstitutional because those requirements were not applied to some secular activities,
such as eating in restaurants. Also, Calvary Chapel asserts that requiring it to submit a
social distancing protocol is unconstitutional because it requires Calvary Chapel to adhere
to unconstitutional face covering and social distancing requirements and capacity
limitations.
The People respond that the capacity limitations and restriction on indoor singing
in the November 2, 2020 order were lawful under the relevant legal authority in effect on
6
The County’s October 13, 2020 revised gatherings directives states in part: “A
gathering does not include, and this Directive does not apply to, normal operations held in
childcare settings or preschool, kindergarten, elementary, secondary, or higher education
classrooms; areas where people may be in transit (like train stations and airports); or
settings in which people are in the same general space at the same time but doing separate
activities, like medical offices, hospitals, or business environments like offices, stores, and
restaurants where people may be working, shopping, or eating in the same general area but
are not gathering together in an organized fashion. A gathering also does not include
internal meetings solely among employees of a single business held at that business’s own
facility or worksite.”
21
that date, and point out that Calvary Chapel did not oppose the November 2, 2020
temporary restraining order on the grounds that the face covering, social distancing, and
social distancing protocol requirements were unconstitutional. Further, the People argue
that the total amount of the sanctions order of $33,000 may be upheld on the basis that
Calvary Chapel violated at least one provision of the November 2, 2020 order every day
between November 2, 2020 and November 23, 2020.
3. Analysis
As we have discussed, we understand the United States Supreme Court in its most
recent rulings to have clarified that public health orders placing capacity limitations on
indoor public gatherings that have the effect of restricting indoor worship services are
unlikely to survive strict scrutiny under the Free Exercise Clause where the same capacity
limitations do not apply to all types of indoor secular activity, notwithstanding that secular
indoor gatherings are also restricted. (South Bay II, supra, 592 U.S. ___ [141 S. Ct. 716];
Tandon, supra, 593 U.S. at p. __ [141 S. Ct. 1294].)
Here, the People do not dispute that the capacity limitations enforced on Calvary
Chapel in the November 2, 2020 temporary restraining order do not apply, as Calvary
Chapel asserts, to secular bus stations, airports, grocery stores, restaurants, office
buildings, and retail stores. Further, the People do not assert that the capacity limitations
can satisfy strict scrutiny review, as articulated by the Supreme Court in Tandon, supra,
593 U.S. at page __ [141 S. Ct. at page 1297]: “Where the government permits other
activities to proceed with precautions, it must show that the religious exercise at issue is
more dangerous than those activities even when the same precautions are applied.
Otherwise, precautions that suffice for other activities suffice for religious exercise too.
[Citations.]”
For these reasons, we determine that under South Bay II, supra, 592 U.S. __ [141
S. Ct. 716] and Tandon, supra, 593 U.S. __ [141 S. Ct. 1294], the November 2, 2020
temporary restraining order that enjoined Calvary Chapel from holding any indoor
22
gathering that did not comply with the capacity limitations of 100 people or 25 percent of
capacity is unconstitutional because it discriminates against a religious institution in
violation of the Free Exercise Clause of the First Amendment and the County has not
satisfied its burden to show that the underlying health order satisfies strict scrutiny.
We need not determine whether the November 2, 2020 temporary restraining order
is unconstitutional with respect to the health order’s requirements for face coverings,
social distancing, and submission of a social distancing protocol. Even assuming, without
deciding, that the health order’s requirements for face coverings, social distancing, and
submission of a social distancing protocol might pass constitutional muster, we cannot on
this record uphold the sanctions imposed by the trial court. The trial court did not impose
discrete fines for violations of the capacity limitations and the violations of the
requirements for social distancing, face coverings, and submission of a social distancing
protocol but instead imposed a single, aggregate punishment. We will therefore reverse
the order of December 17, 2020 requiring Calvary Chapel to pay fines totaling $33,000 in
its entirety.
C. H048734 Calvary Chapel v. Superior Court
Calvary Chapel filed a petition for review challenging the December 17, 2020 order
of contempt, in which the trial court found that Calvary Chapel had violated the
November 2, 2020 temporary restraining order every day from November 2, 2020, to
November 23, 2020, by “holding indoor gatherings in excess of applicable capacity limits,
permitting indoor gathering attendees to sing, not enforcing or requiring indoor gathering
attendees to wear face coverings, not enforcing or requiring indoor gathering attendees to
socially distance, and/or not submitting a Social Distancing Protocol.” Calvary Chapel
was also ordered to pay a fine of $1,000 per day pursuant to section 1218, subdivision (a)
as penalty for the contempt finding, for a total of $22,000.
We granted Calvary Chapel’s petition for review and allowed further briefing.
Calvary Chapel contends that the contempt order must be annulled because the trial court
23
exceeded its jurisdiction in finding Calvary Chapel in contempt for violating an
unconstitutional temporary restraining order. Calvary Chapel also contends that the trial
court committed evidentiary error by making the contempt ruling on the basis of witness
declarations rather than live witness testimony. We will begin our evaluation of these
contentions with the requirements for an order of contempt and the applicable standard of
review.
1. Requirements for Civil Contempt
“As the United States Supreme Court has observed, ‘[i]t is beyond question that
obedience to judicial orders is an important public policy. An injunction issued by a court
acting within its jurisdiction must be obeyed until the injunction is vacated or withdrawn.
[Citations.]’ (W.R. Grace & Co. v. Rubber Workers (1983) 461 U.S. 757, 766, 103 S Ct.
2177.) [¶] Under California’s general contempt law, ‘[d]isobedience of any lawful
judgment, order, or process of the court’ is punishable as a civil contempt. ( . . .§ 1209,
subd. (a)(5).)” (City of Palo Alto v. Service Employees International Union (1999) 77
Cal.App.4th 327, 338–339.)
“ ‘[T]he elements of contempt include (1) a valid order, (2) knowledge of the order,
(3) ability to comply with the order, and (4) willful failure to comply with the order.
[Citations.]’ [Citation.]” (Wanke, Industrial, Commercial, Residential, Inc. v. Keck
(2012) 209 Cal.App.4th 1151, 1168.) However, “a party may not defend against
enforcement of a court order by contending merely that the order is legally erroneous.
[Citation.] . . . [O]nly an erroneous order that is either ‘unconstitutional on its face’ or ‘in
excess of the issuing court’s jurisdiction’ is subject to collateral attack in a later contempt
proceeding for violating the order. [Citation.]” (People v. Sorden (2021) 65 Cal.App.5th
582, 593–594.)
Regarding monetary sanctions, section 1218, subdivision (a) provides in part:
“Upon the answer and evidence taken, the court or judge shall determine whether the
person proceeded against is guilty of the contempt charged, and if it be adjudged that the
24
person is guilty of the contempt, a fine may be imposed on the person not exceeding one
thousand dollars ($1,000), payable to the court . . . .” “Where separate contemptuous acts
are committed, the contemner can be fined for each offense in the amount authorized by
the code. [Citations.]” (Donovan v. Superior Court (1952) 39 Cal.2d 848, 855.) We
review an order imposing monetary sanctions pursuant to section 1218, subdivision (a) for
abuse of discretion. (See Martorana v. Marlin & Salzman (2009) 175 Cal.App.4th 685,
698; Caldwell, supra, 222 Cal.App.3d at p. 977 [orders for monetary sanctions generally
reviewed under abuse of discretion standard].)
2. The Parties’ Contentions
Calvary Chapel does not dispute that it violated the November 2, 2020 temporary
restraining order, instead contending that the November 2, 2020 temporary restraining
order is facially unconstitutional. As Calvary Chapel previously argued on appeal, the
capacity limitations in the November 2, 2020 order that enjoined it from “holding
gatherings indoors in excess of 100 people or 25% of capacity, whichever is less” are
unconstitutional under Roman Catholic Diocese, supra, 592 U.S. __ [141 S. Ct 63],
because the capacity limitations were based on the County’s October 13, 2020 revised
gatherings directive, which applied to churches but exempted “bus stations, airports,
grocery stores, restaurants, office buildings, and retail stores.”
The People disagree, maintaining that the capacity limitations as applied are
constitutional, and asserting that the December 17, 2020 contempt order may be based
upon Calvary Chapel’s violations of the face covering and social distancing requirements,
which Calvary Chapel did not challenge in its writ petition.
3. Analysis
Our analysis is governed by the well-established rule that “an order
unconstitutional on its face is in excess of jurisdiction and cannot sustain a contempt
judgment. [Citation.]” (People v. Gonzalez (1996) 12 Cal.4th 804, 823 (Gonzalez).) The
California Supreme Court applied this rule in the First Amendment context in Berry,
25
supra, 68 Cal.2d 137. The contempt order at issue in Berry held union members in
contempt for violating a temporary restraining order that prohibited the union members
from conducting a strike and picketing. (Id. at p. 143.) Our Supreme Court ruled that the
temporary restraining order violated the union members’ First Amendment right to free
speech, since “[i]t is clear that peaceful picketing is an activity subject to absolute
constitutional protection in the absence of a valid state interest justifying limitation or
restriction. [Citation.]” (Id. at pp. 152, 155.) The court concluded that the temporary
restraining order was void on its face as unconstitutionally overbroad and an unnecessary
restriction of First Amendment rights, and therefore granted the union members’ petition
for a writ of habeas corpus. (Id. at pp. 150, 157.)
In the present case, we agree with Calvary Chapel that the November 2, 2020
temporary restraining order is unconstitutional on its face as to that portion of the order
that compelled Calvary Chapel to comply with the public health order’s capacity
limitations on indoor gatherings. As we have discussed, under South Bay II, supra, 592
U.S. __ [141 S Ct. 716] and Tandon, supra, 593 U.S. __ [141 S. Ct. 1294], we determine
the portion of the November 2, 2020 temporary restraining order that enjoined Calvary
Chapel from holding any indoor gathering that did not comply with the capacity
limitations of 100 people or 25 percent of capacity is unconstitutional because it
discriminated against a religious institution in violation of the Free Exercise Clause of the
First Amendment.
Moreover, even assuming, without deciding, that the November 2, 2020 temporary
restraining order is not unconstitutional on its face with respect to the violations of the
health order’s requirements for face coverings, social distancing, and submission of a
social distancing protocol, we cannot on this record uphold the, December 17, 2020
contempt order. (See, e.g., Roman Catholic Diocese, 592 U.S at p. __ [141 S. Ct 63];
South Bay II, supra, 592 U.S at p. __ [141 S. Ct. at p. 719] (conc. opn. of Gorsuch, J.).)
As the trial court imposed a single, aggregate sanction for violation of the temporary
26
restraining order, we must therefore annul the December 17, 2020 order of contempt in its
entirety.
4. Evidentiary Error
Calvary Chapel contends that another basis for annulling the December 17, 2020
contempt order is the violation of procedural safeguards that occurred during the contempt
hearing, consisting of the admission of the County’s evidence solely on the basis of
witness declarations over Calvary Chapel’s objections. According to Calvary Chapel, this
evidentiary error violated its constitutional right to confront and cross-examine witnesses
in a criminal proceeding, including a quasi-criminal contempt proceeding.
The People respond that the trial court advised the parties prior to the contempt
hearing that the court wanted them to submit on the papers as much as possible, that
Calvary Chapel did not request the County to produce its witnesses or subpoena any
witnesses, and therefore Calvary Chapel has waived any objection. The People also assert
that the claimed error was harmless in any event since the facts of Calvary Chapel’s
violations of the November 2, 2020 temporary restraining order were undisputed.
Our review of the record shows that at the outset of the December 8, 2020 hearing
on the order to show cause re contempt for Calvary Chapel’s violation of the November 2,
2020 temporary restraining order, Calvary Chapel objected to the County submitting its
evidence by way of witness declarations and argued that Calvary Chapel had a
constitutional right to confront its accusers. The trial court overruled the objection after
confirming that the court had requested that the matter proceed on the papers and had
encouraged the parties to meet and confer with regard to witnesses. The court also
confirmed with Calvary Chapel’s counsel that Calvary Chapel had never asked the County
to bring witnesses and had never attempted to subpoena any County witnesses.
We determine that even assuming, without deciding, that Calvary Chapel had a
constitutional right under the Sixth Amendment to confront the County’s witnesses at the
contempt hearing, and that the County was obligated to provide live witnesses without any
27
action on Calvary Chapel’s part, Calvary Chapel has forfeited that right. It is axiomatic
that “a right may be lost not only by waiver but also by forfeiture, that is, the failure to
assert the right in timely fashion. [Citations.]” (People v. Barnum (2003) 29 Cal. 4th
1210, 1224.) Our Supreme Court has further stated: “ ‘ “No procedural principle is more
familiar to this Court than that a constitutional right,” or a right of any other sort, “may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.” . . .’ [Citation.]” (Keener v.
Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.)
Here, it is apparent that Calvary Chapel did not timely assert that it had a
constitutional right to confront the County’s witnesses that would be violated by the
contempt hearing proceeding solely on the basis of witness declarations. It is undisputed
that the trial court requested the parties to proceed by way of declarations as much as
possible, encouraged the parties to meet and confer with respect to witnesses, and that
Calvary Chapel took no action to procure the attendance of the County’s witnesses.
Further, Calvary Chapel did not object to the contempt hearing proceeding by way of
declarations, rather than live witnesses, until the day of the hearing. We therefore
conclude that Calvary Chapel has forfeited its claim of an evidentiary error that violated
its constitutional right to confrontation, and therefore the claimed error does not provide a
basis for annulling the December 17, 2020 contempt order.
In the reply brief and during oral argument, Calvary Chapel additionally contended
that its right to due process was violated at the contempt hearing because it was “denied
the right to call their own witnesses,” and that “Mike McClure and other expert witnesses
were prepared for testimony.” We ordinarily do not consider issues raised for the first
time in a reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.) We
will address the issue, however, because our review of the record shows that Calvary
Chapel is incorrect. The reporter’s transcript for the December 8, 2020 contempt hearing
includes the following colloquy:
28
“THE COURT: ·I’ll turn it over to Defendants now.
“MR. TYLER:· Thank you, Your Honor.[¶] I am not calling any witnesses, Your
Honor,”
Accordingly, Calvary Chapel’s due process contention lacks merit since Calvary
Chapel was not denied the right to call its own witnesses at the December 8, 2020
contempt hearing.
D. H048947 McClure v. Superior Court
Calvary Chapel and individual defendants McClure and Atherley petitioned for
review of the February 16, 2021 order of contempt, in which the trial court found that the
Calvary Chapel defendants willfully violated the November 24, 2020 modified temporary
restraining order and the preliminary injunction order from November 24, 2020, to
January 3, 2021 by holding indoor gatherings, permitting singing at the gatherings, not
enforcing or requiring face coverings at the gatherings, not enforcing or requiring socially
distancing at the gatherings, and not submitting a social distancing protocol to the County
of Santa Clara Public Health Department. 7 The February 16, 2021 order also imposed
monetary sanctions on Calvary Chapel, McClure, and Atherley under section 1218,
subdivision (a) and section 177.5.
We granted the petition for review and allowed further briefing. In its petition,
Calvary Chapel argues that the February 16, 2021 order of contempt must be annulled
because the violations of the November 24, 2020 modified temporary restraining order
7
The November 24, 2020 modified temporary restraining order enjoined Calvary
Chapel from the following: “1. Conducting any gathering that does not fully comply with
both the State and County public health orders, including but not limited to, complying
with prohibitions on: holding gatherings indoors; holding outdoor gatherings in excess of
200 people; allowing participants to attend gatherings without wearing face coverings;
allowing participants to attend gatherings without maintaining adequate social distance of
no less than six feet; allowing singing or chanting at indoor gatherings; and [¶] 2.
Operating, whether indoors or outdoors, without the prior submission and implementation
of a Social Distancing Protocol.”
29
and the preliminary injunction by Calvary Chapel, McClure, and Atherley cannot be the
basis for a contempt finding because the orders are unconstitutional. They also argue that
the contempt order must be annulled because the trial court committed evidentiary error
by excluding the testimony of Dr. Cody.
1. February 16, 2021 Order of Contempt
Calvary Chapel contends that holding indoor religious services in violation of the
November 24, 2020 modified temporary restraining order and the preliminary injunction
cannot be the basis for a contempt order because the United States Supreme Court has
ruled in several cases that a ban on indoor religious services violates the Free Exercise
Clause. Calvary Chapel also contends that the ban on indoor singing and the requirements
for face coverings, social distancing, and submission of a social distancing protocol are
unconstitutional because they are not neutral and of general applicability, and therefore
cannot be the basis of a contempt order.
The People disagree, arguing that both the November 24, 2020 modified temporary
restraining order and the preliminary injunction were issued within the trial court’s
authority and as such were not void and may be the basis for a contempt order.
Additionally, the People argue that the orders were not facially unconstitutional because
no court has found that either the singing ban or the requirements for face coverings,
social distancing, and submission of a social distancing protocol are unconstitutional.
According to the People, even if the orders’ ban on indoor religious services is deemed
facially unconstitutional, the February 16, 2021 contempt order may stand on the
violations of the requirements for face coverings, social distancing, and submission of a
social distancing protocol.
We agree with Calvary Chapel that, as we have discussed, under the most recent
Supreme Court rulings the prohibition on indoor gatherings in the November 24, 2020
modified restraining order and the preliminary injunction that effectively prohibited
indoor worship services, while allowing certain secular indoor activities to occur, is
30
unconstitutional on its face as a violation of the Free Exercise Clause. (See South Bay II,
supra, 592 U. S. __ [141 S Ct. at p.__]; Tandon, supra, 593 U.S. at p. __ [141 S. Ct.
1294].) Therefore, the February 16, 2021 order of contempt cannot be sustained on the
basis that Calvary Chapel, McClure and Atherley violated the orders by holding indoor
religious services and other indoor gatherings. (See Gonzalez, supra, 12 Cal.4th at p. 823;
Berry, supra, 68 Cal.2d at pp. 150, 157.)
Further, as we have discussed, although the Supreme Court has not granted
injunctive relief as to a challenge to a singing ban in a pandemic-related public health
order, and has not directly addressed other pandemic-related public health measures such
as face coverings and social distancing in its rulings, we need not determine whether the
contempt order may be sustained on that ground. (See, e.g., Roman Catholic Diocese, 592
U.S at p. __ [141 S. Ct 63]; South Bay II, supra, 592 U.S at p. __ [141 S. Ct. at p. 719]
(conc. opn. of Gorsuch, J.).) On the record before us, it is not possible to separate Calvary
Chapel’s violations of the prohibition on indoor gatherings from the violations of the
requirements for social distancing, face coverings, and submission of a social distancing
protocol. We will therefore reverse the February 16, 2021 order of contempt in its
entirety.
2. Evidentiary Error
During the hearing held on the order to show cause re contempt, the trial court
denied Calvary Chapel’s request to have Dr. Cody, the County’s public health officer,
appear and testify regarding the County’s public health orders, and also excluded
Dr. Cody’s declaration from evidence. The trial court determined that Dr. Cody’s
testimony was not relevant to the issue at bar of whether Calvary Chapel, McClure, and
Atherley had willfully violated the November 24, 2020 modified temporary restraining
order and the preliminary injunction, which the court had previously determined were
valid, constitutional orders. Calvary Chapel contends that the trial court erred in
31
excluding Dr. Cody’s testimony and declaration and the evidentiary error is another basis
for annulling the February 16, 2021 order of contempt.
In Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229 (Shaw), this court
stated the applicable standard of review: “We review a trial court’s evidentiary rulings for
abuse of discretion. [Citation.] This is particularly so with respect to rulings that turn on
the relevance of the proferred evidence. [Citation.] . . . . Discretion is abused only when
in its exercise, the trial court ‘exceeds the bounds of reason, all of the circumstances
before it being considered.’ [Citation.] There must be a showing of a clear case of abuse
and miscarriage of justice in order to warrant a reversal. [Citation.] A trial court will
abuse its discretion by action that is arbitrary or ‘ “that transgresses the confines of the
applicable principles of law.” ’ [Citations.] In appeals challenging discretionary trial
court rulings, it is the appellant’s burden to establish an abuse of discretion.” (Id. at
p. 281.)
According to Calvary Chapel, “[t]he examination of Dr. Cody was necessary to
determine whether the County could have implemented less restrictive orders to avoid the
infringement of religious liberties. Dr. Cody would also have been questioned on the
neutrality and general applicability of the orders. This determination is directly relevant to
whether the public health orders were constitutional.”
The People argue that the trial did not abuse its discretion because Dr. Cody’s
testimony was not relevant to the issue of the validity of the November 24, 2020 modified
temporary restraining order and the preliminary injunction.
We determine that even assuming, without deciding, that the trial court abused its
discretion in excluding the testimony and declaration of Dr. Cody, the error was not
prejudicial since we have concluded, as discussed above, that the February 16, 2021 order
of contempt must be annulled in its entirety. (See Shaw, supra, 170 Cal.App.4th at
p. 281.) Accordingly, we conclude in the absence of prejudicial error that Calvary
Chapel’s claim of evidentiary error lacks merit.
32
IV. DISPOSITION
In H048708, People v. Calvary Chapel San Jose¸ the December 17, 2020 order
requiring payment of monetary sanctions is reversed. The parties shall bear their own
appellate costs.
In H048734, Calvary Chapel San Jose v. Superior Court, the December 17, 2020
order of contempt is annulled in its entirety. The parties shall bear their own appellate
costs.
In H048947, McClure v. Superior Court, the February 16, 2021 order of contempt
is annulled in its entirety. The parties shall bear their own appellate costs.
33
_______________________________
Greenwood, P. J.
WE CONCUR:
_______________________________________________
Bamattre-Manoukian, J.
_________________________________
Danner, J.
People et al. v. Calvary Chapel San Jose et al.
H048708
Calvary Chapel San Jose et al. v. Superior Court
H048734
McClure et al. v. Superior Court
H048947
Trial Court: Santa Clara County Superior Court
Superior Court No: 20CV372285
Trial Judge: The Honorable Peter H. Kirwan
Attorneys for Defendants and Appellants Robert Henry Tyler
CALVARY CHAPEL SAN JOSE et al.: Mariah Rose Gondeiro
Advocates for Faith & Freedom
Attorneys for Plaintiffs and Respondents James Robyzad Williams,
THE PEOPLE, et al.: County Counsel
Melissa Kiniyalocts,
Lead Deputy County Counsel
Meredith A. Johnson,
Deputy County Counsel
Jeremy Anthony Avila,
Deputy County Counsel
Jeffrey F. Rosen
District Attorney
David A. Angel
Assistant District Attorney
People et al. v. Calvary Chapel San Jose et al.
H048708
Attorneys for Petitioners Robert Henry Tyler
CALVARY CHAPEL SAN JOSE, et al.: Mariah Rose Gondeiro
Tyler & Bursch, LLP
Attorneys for Real Party in Interest James Robyzad Williams,
THE PEOPLE et al: County Counsel
Melissa Kiniyalocts,
Lead Deputy County Counsel
Meredith A. Johnson,
Deputy County Counsel
Jeremy Anthony Avila,
Deputy County Counsel
Jeffrey F. Rosen
District Attorney
David A. Angel
Assistant District Attorney
Calvary Chapel San Jose et al. v. Superior Court
H048734
Attorneys for Petitioners Robert Henry Tyler
MIKE MCCLURE, et al.: Mariah Rose Gondeiro
Tyler & Bursch, LLP
Attorneys for Respondent James Robyzad Williams,
THE PEOPLE: County Counsel
Melissa Kiniyalocts,
Lead Deputy County Counsel
Meredith A. Johnson,
Deputy County Counsel
Jeremy Anthony Avila,
Deputy County Counsel
Jeffrey F. Rosen
District Attorney
David A. Angel
Assistant District Attorney
McClure et al. v. Superior Court
H048947