A federal judge has denied a city of Newport Beach mayor emeritus and current councilman’s request for a temporary restraining order (TRO) against Gov. Gavin Newsom and other state officials.
Kevin Muldoon alleged in his lawsuit that the COVID-19-related closure of the beaches in Orange County infringed upon his federal and state constitutional rights but U.S. District Judge James V. Selna denied his TRO request on May 7, after Newsom agreed to allow the beaches to reopen with active use restrictions.
“Defendants argue that because the beaches in Newport Beach as well as all other municipal beaches in the County have reopened, albeit with restrictions, Muldoon’s application for a TRO is moot, and he cannot demonstrate either a likelihood of success on the merits or irreparable harm,” wrote Judge Selna in his order. “The Court agrees.”
As previously reported on May 5, Muldoon also named as defendants Attorney General Xavier Becerra, Office of Emergency Services Director Mark Ghilarducci and California Natural Resources Agency Secretary Wade Crowfoot.
Muldoon filed the lawsuit as an individual and not in his capacity as a city councilman on May 4, in response to Newsom’s April 30 letter to Orange County supervisors mandating that all Orange County beaches close as of May 1. But by May 6, the Office of Emergency Services and California Natural Resources Agency had reviewed and approved the city’s COVID-19 Beach Access Plan, which allowed the beaches to open.
“The court denied the TRO as moot after the Governor agreed to allow the beaches to reopen with active use restrictions,” said plaintiff’s attorney Bilal Essayli of Newport Beach. “We didn't have an opportunity to respond to the reopening of the beaches.”
Judge Selna also declined to issue an order to show cause regarding a preliminary injunction.
“The issue of beach restrictions has not been fully litigated and we will continue challenging those restrictions because we believe all people should have access to the beach including those with mobility issues or mothers with kids who would like to play in the sand,” plaintiff's attorney Essayli told the Southern California Record. “There's no evidence that people cannot exercise social distancing at the beach safely without active use restrictions.”
The Office of Emergency Services and California Natural Resources Agency also approved COVID-19 Beach Access Plans for the cities of Dana Point, Huntington Beach, Laguna Beach, Seal Beach and San Clemente, according to Judge Selna’s order.
“Muldoon does not declare that he attempted to visit a local beach and was prevented from doing so, or that he even wanted to go to the beach,” Judge Selna ruled. “This deficiency, in combination with the re-opening of Newport Beach’s beaches, casts doubt on Muldoon’s claims regarding irreparable harm. Finally, the balance of hardships tips substantially in favor of state given the public’s strong interest in reducing the spread of COVID-19 with measures designed to limit physical contact.”
As of May 18, there were 80,430 coronavirus positive cases statewide and 3,302 fatalities according to the Department of Health COVID-19 dashboard.
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