Statement of Genuine Disputes — Brach v. Newsom (C.D. Cal.)

Record facts

U.S. District Court, Central District of California · No. 2:20-cv-06472-SVW-AFM · Doc. 61-1 · 2020-09-15 · Docket on CourtListener

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Statement of Facts  
  
Case No. 2:20-CV-06472 
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HARMEET K. DHILLON (SBN: 207873) 
harmeet@dhillonlaw.com 
MARK P. MEUSER (SBN: 231335) 
mmeuser@dhillonlaw.com  
MICHAEL YODER (pro hac vice) 
myoder@dhillonlaw.com 
DHILLON LAW GROUP INC. 
177 Post Street, Suite 700 
San Francisco, California 94108 
Telephone: (415) 433-1700 
Facsimile: (415) 520-6593 
 
ROBERT DUNN (SBN: 275600) 
rdunn@eimerstahl.com 
EIMER STAHL LLP 
99 South Almaden Blvd., Suite 662 
San Jose, CA 95113 
(669) 231-8755 
 
 
 
 
RYAN J. WALSH (pro hac vice) 
rwalsh@eimerstahl.com 
JOHN K. ADAMS (pro hac vice) 
jadams@eimerstahl.com 
AMY C. MILLER (pro hac vice) 
amiller@eimerstahl.com  
EIMER STAHL LLP 
10 East Doty Street, Suite 800 
Madison, WI 53703 
(608) 441-5798 
Attorneys for Plaintiffs  
 
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA 
 
MATTHEW BRACH, an individual, 
et al., 
 
 
Plaintiffs, 
 
   v. 
GAVIN NEWSOM, in his official ca-
pacity as the Governor of California, et 
al., 
 
      Defendants. 
Case Number: 2:20-CV-06472-SVW-AFM
 
PLAINTIFFS’ STATEMENT OF 
GENUINE DISPUTES IN OPPOSI-
TION TO SUA SPONTE GRANT OF 
SUMMARY JUDGMENT  
Judge:       Hon. Stephen V. Wilson 
Courtroom:   10A 
 
 
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Statement of Facts  
  
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Pursuant to Federal Rule of Civil Procedure 56(c) and Local Rule 56-2, Plain-
tiffs submit the following Statement of Genuine Disputes in opposition to this Court’s 
sua sponte grant of summary judgment. ECF No. 60. 
 
STATEMENT OF FACTS 
I. 
Whether Plaintiffs Will Receive A Basic Minimum Education Through 
“Distance Learning” Is a Disputed Fact.  
1. 
Defendants claim that Plaintiffs will receive a basic minimum education 
in the 2020–21 school year notwithstanding the July 17th Order and subsequent up-
dates. See, e.g., Maves Decl. (ECF No. 54-4). There is substantial evidence in the rec-
ord rebutting this contention. 
2. 
The COVID-19 pandemic has “exacerbated” “disparities in school fund-
ing, qualities of school facilities, educational staffing, and resources for enriching cur-
riculum.” Wessel Supp. Decl. (ECF No. 54-3) Ex. WW at 1. 
3. 
“[V]irtual learning models” “widen” “educational disparities” that dis-
proportionately impact “children who are English language learners, children with dis-
abilities, children living in poverty, and children of African American/Black, 
Latinx/Hispanic, and Native American/Alaska Native origin.” Wessel Supp. Decl. 
(ECF No. 54-3) Ex. WW at 1; Keech Decl. (ECF No. 28-17) ¶ 16; Jeff Barke Decl. 
(ECF No. 28-10) Ex. 10 at 2. 
4. 
“The importance of in-person learning is well-documented, and there is 
already evidence of the negative impacts on children because of school closures in the 
spring of 2020.” Wessel Supp. Decl. (ECF No. 54-3) Ex. WW 3. 
5. 
In the spring, rates of student participation in virtual learning were low, a 
number of schools did not expect teachers to engage with students or actively provide 
instruction, and many students with disabilities did not receive statutorily mandated 
services. Hamilton Decl. (ECF No. 28-9) ¶ 6; Jeff Barke Decl. (ECF No. 28-10) Ex. 
10 at 2; see, e.g., Hawkins Decl. (ECF No. 28-36) ¶¶ 10–11; Mitrowke Decl. (ECF 
No. 28-34) ¶¶ 3–4; Ramirez Decl. ¶¶ 8–9; Ruiz Decl. (ECF No. 28-31) ¶¶ 4–6, 13, 
15–17. 
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6. 
As of July 29, 2020, approximately one million students were incapable 
of participating in virtual learning at all because they lack access to the required tech-
nology. Defendants’ Request for Judicial Notice (ECF No. 36) Ex. KK at 1. 
II. 
Whether the Orders are Appropriately Tailored to Defendants’ As-
serted Interest in Combatting the Spread of COVID-19 Is A Disputed 
Fact. 
7. 
Defendants assert that the Orders are narrowly tailored because “opening 
schools for in-person instruction poses a substantial risk to the spread of the [SARS-
CoV-2] virus and increased infections among students, teachers, and staff.” Watt 
Supp. Decl. (ECF No. 54-1) ¶ 3. There is substantial evidence in the record rebutting 
this contention. 
8. 
Defendants do not cite any medical or scientific evidence that can be in-
terpreted as supporting the conclusion that children are likely to transmit SARS-CoV-
2 to adults or that every school located in Tier I counties is incapable of safely provid-
ing some form of in-person education. The studies and news articles Defendants cite 
either do not evaluate the transmission of SARS-CoV-2 from children to adults, or 
they state that children are unlikely to experience significant illness or transmit SARS-
CoV-2 to adults. Watt Decl. (ECF No. 35-1) ¶¶ 26, 37; Watt Supp. Decl. (ECF No. 
54-1) ¶¶ 4, 7, Ex. QQ; Wessel Supp. Decl. (ECF No. 54-3) Ex. WW at 3; Defendants’ 
Request for Judicial Notice (ECF No. 36) Ex. L at 4, Ex. M at 1, Ex. W at 1, Ex. Z at 
2–4, Ex. AA, Ex. BB, Ex. DD at 3; Bhattacharya Decl. (ECF No. 28-3) ¶¶ 23–30; 
Bhattacharya Supp. Decl. in support of Mot. for Temp. Restraining Order (ECF No. 
52) ¶¶ 3–6. 
9. 
Children are extremely unlikely to experience severe symptoms or die 
from COVID-19. Watt Decl. (ECF No. 35-1) ¶ 18; Watt Supp. Decl. (ECF No. 54-1) 
¶ 4; Wessel Supp. Decl. (ECF No. 54-3) Ex. WW at 3; Defendants’ Request for Judi-
cial Notice (ECF No. 36) Ex. L at 4, Ex. M at 1, Ex. V at 1, DD at 3; Atlas Decl. (ECF 
No. 28-4) ¶¶ 10–13, 26; Lyons-Weiler Decl. (ECF No. 28-5) ¶ 7. The fatality rate for 
individuals under age 70 is less than one-tenth of one percent. Atlas Decl. (ECF No. 
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28-4) ¶ 9. There has been only one juvenile fatality in California related to COVID-
19, a teenager with underlying health conditions. Defendants’ Request for Judicial 
Notice (ECF No. 36) Ex. V at 1. 
10. 
The risk of transmission of SARS-CoV-2 from children to adults is low. 
Watt Supp. Decl. (ECF No. 54-1) ¶ 4; Wessel Supp. Decl. (ECF No. 54-3) Ex. WW at 
3; Defendants’ Request for Judicial Notice (ECF No. 36) Ex. L at 4, Ex. M at 1; 
Bhattacharya Decl. (ECF No. 28-3) ¶¶ 22–27; Atlas Decl. (ECF No. 28-4) ¶ 16; Vic-
tory Decl. (ECF No. 28-11) ¶ 5; Jeff Barke Decl. (ECF No. 28-10) Ex. 9; 
Bhattacharya Supp. Decl. in Support of Mot. for Temp. Restraining Order (ECF No. 
52) ¶¶ 3–6. 
11. 
Schools can implement measures proven to reduce the risk of transmis-
sion of SARS-CoV-2. These measures include physical distancing, use of cloth face 
coverings, handwashing, and cohorting. Watt Decl. (ECF No. 35-1) ¶¶ 16, 30, 43; 
Wessel Supp. Decl. (ECF No. 54-3) Ex. WW at 5, Ex. YY at 1–2; Jeff Barke Decl. 
(ECF No. 28-10) Ex. 9; Kaufman Decl. (ECF No. 28-06) ¶ 16. 
12. 
Around the world, countries have successfully reopened or partially reo-
pened schools for in-person learning without adverse effect. Jeff Barke Decl. (ECF 
No. 28-10) Ex. 9. Where outbreaks have been tied to schools or childcare programs, 
those schools failed to implement basic public safety measures such as wearing cloth-
masks and ensuring classroom as well-ventilated. Defendants’ Request for Judicial 
Notice (ECF No. 36) Ex. W at 1, Ex. Z at 2. 
13. 
Defendants have permitted childcare centers to operate for months ac-
cording to guidelines designed to allow them to operate safely in-person. Watt Decl. 
(ECF No. 35-1) ¶ 20.1 Schools in California are also permitted to run childcare centers 
on campus for a fee. Dhillon Decl. (ECF No. 28-2) ¶ 7. These children are supervised 
in classrooms by childcare workers. Id.; Ziegler Supp. Decl. (ECF No. 55-6) ¶ 5.  
 
 
                                          
1 “COVID-19 Update Guidance: Child Care Programs and Providers” (July 17, 2020), 
https://files.covid19.ca.gov/pdf/guidance-childcare--en.pdf. 
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III. 
Whether The California Department Of Public Health’s Guidance Re-
lating To Cohorts Is Sufficient To Provide The Services Required By 
The IDEA Is A Disputed Fact 
14. 
Defendants contend that the state’s new cohorting guidance cures any vi-
olation of the IDEA that the Orders might otherwise have caused.  ECF No. 54 at 17; 
Wessel Supp. Decl. (ECF No. 54-3) Exs. XX, YY.  There is substantial evidence in 
the record rebutting this contention. 
15. 
The restrictions in the new cohorting guidance do not permit enough stu-
dents to participate in in-person education to satisfy the IDEA. The cohorting guid-
ance limiting groups to 16 and to a total of 25% of the building’s capacity will not be 
able to support all students with an IEP along with English language learners, home-
less and at-risk youth, and those not participating in distance learning. Wessel Supp. 
Decl. (ECF No. 54-3) Ex. YY; Reardon Decl. (ECF No. 28-15) ¶ 6; Walker Decl. 
(ECF No. 28-16) ¶ 4 (around 12% of all students have an IEP); Keech Decl. (ECF No. 
28-17) ¶¶ 6–7 (in some schools, one quarter to more than one half of the students are 
classified as “English Language Learners”). 
 
16. 
The child find obligation under the IDEA cannot be adequately per-
formed remotely because disabilities are primarily discovered in the classroom and 
many students are not logging into virtual learning. Victory Decl. (ECF No. 28-11) ¶ 6 
(“children’s hearing and visions problems are typically identified at school”); Keech 
Decl. (ECF 28-17) ¶ 15 (less than 10% of children in one school “logged in” for dis-
tance learning). 
17. 
School districts are having difficulty accommodating all of the children 
with IEPs, English language learners, and other needy children given the cap on per-
sons present on each school campus. Bema Supp. Decl. ¶ 16.  
 
 
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IV. 
Whether It Is Rational to Use Case Counts and Positivity Rates to De-
termine the Tier Placement for Each County Is a Disputed Fact. 
18.  
Defendants contend that the State has “tailor[ed] and target[ed] its public 
health measures including at a county-by-county level,” and “focus[ed] more restric-
tive measures in areas that are currently experiencing elevated rates of infection and 
hospitalization.” Watt Decl. (ECF No. 35-1) ¶ 40.  There is substantial evidence in the 
record rebutting this contention. 
19. 
There is “no evidence that CDPH has ever calculated the severity of in-
fluenza or other respiratory disease by focusing on the positive test results.” Kaufman 
Supp. Decl. (ECF No. 55-3) ¶ 5. Rather, “[d]eath rates and hospitalization by age 
groups has been the main driver in determining the weekly status of infectious disease 
within the State of California for decades.” Id. ¶ 7. “The most reliable metric for de-
termining whether a county is experiencing community spread is hospitalizations, be-
cause “unlike the case rate or positivity rate, the number of people hospitalized for 
COVID-19 is less likely to be influenced by how much testing is occurring.” Cicchetti 
Supp. Decl. (ECF No. 55-4) ¶ 12.  
20. 
If the state focused on hospitalization rates, almost the entire state would 
have been off the monitoring list as of August 25, 2020. Cicchetti Supp. Decl. (ECF 
No. 55-4) ¶ 16. Yet the state’s revised “tier” system does not rely on hospitalization 
data at all, and instead relies exclusively on case counts and positivity rates.2  
21. 
“The selected case rate of 100 per 100,000 is a subjective number which 
offers little to no scientific validity for identifying overall risk to the health of a spe-
cific population.” Kaufman Supp. Decl. (ECF No. 55-3) ¶ 9.  Moreover, “[b]ecause 
the majority of people who become infected with COVID-19 never show symptoms 
and scientifically pose little-to-no risk to the community, using misleading morbidity 
rates does not assist in accurately ascertaining the true risk of community transmis-
sion.” Id. ¶ 11. 
                                          
2 See Blueprint for a Safer Economy, available at https://covid19.ca.gov/safer-
economy/; https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/COVID19CountyMonitoringOverview.aspx. 
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20. 
Defendants’ use of positive test results is also irrational because the PCR 
tests used to determine a county’s tier placement is “inconclusive, misleading, and in-
accurate.” Kaufman Supp. Decl. (ECF No. 55-3) ¶ 12. Individuals can test positive 
weeks after they have ceased to be infectious. Id. ¶ 13.c; see also Kaufman Second 
Supp. Decl. ¶ 8. Many asymptomatic people who test positive are non-infectious and 
pose no risk to the general public. Kaufman Supp. Decl. (ECF No. 55-3) ¶ 13.d. And 
some individuals who are positive will take the PCR test multiple times, yet each time 
they test positive the state logs it as a positive case. Id. ¶ 13.a. 
21. 
California’s Department of Public Health has recognized that a “negative 
test should not be required prior to returning to the workplace after documented 
COVID infection” because “tests can remain positive long after an individual is no 
longer infectious.”  Kaufman Second Supp. Decl. ¶ 10. CDPH thus recommends that 
“symptom- or protocol-based criteria should be used in determining when an em-
ployee is safe to return to the workplace.” Id. Yet while CDPH does not believe posi-
tive tests should be used to keep individuals from working, it is using positive tests to 
close schools. Id. ¶ 11.  This is irrational.  
 
Respectfully submitted, 
Date: September 15, 2020 
DHILLON LAW GROUP INC. 
 
 
 
 
 
 By: /s/ Harmeet K. Dhillon 
 
 
 
Harmeet K. Dhillon 
Mark P. Meuser 
Michael Yoder 
 
  
 
 
 
 
EIMER STAHL LLP 
  
 
 
 
 
Robert Dunn 
  
 
 
 
 
Ryan J. Walsh 
  
 
 
 
 
John K. Adams 
  
 
 
 
 
Amy C. Miller 
 
 
 
 
 
Attorneys for Plaintiffs 
 
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