Case 4:20-cv-03186 Document 1 Filed 05/09/20 Page 1 of 18
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`Alex Spiro (pro hac vice to be filed)
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7364
`Fax: (212) 849-7100
`Email: alexspiro@quinnemanuel.com
`
`Derek L. Shaffer (CA Bar No. 212746)
`1300 I Street NW, Suite 900
`Washington, DC 20005
`Telephone: (202) 538-8123
`Fax: (202) 538-8100
`Email: derekshaffer@quinnemanuel.com
`
`Kyle K. Batter (CA Bar No. 301803)
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`Email: kylebatter@quinnemanuel.com
`
`Attorneys for Plaintiff Tesla, Inc.
`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case Number: 4:20-cv-03186
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`
`COMPLAINT FOR INJUNCTIVE AND
`DECLARATORY RELIEF
`
`Plaintiff,
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`TESLA, INC.,
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`ALAMEDA COUNTY, CALIFORNIA;
`
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`Defendant.
`
`vs.
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`Case 4:20-cv-03186 Document 1 Filed 05/09/20 Page 2 of 18
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`NATURE OF THE ACTION
`1.
`As COVID-19 loomed, local officials scrambled to implement myriad measures
`protecting the Californians in their jurisdictions. The State stepped in to ensure California’s
`response was clear, uniform, and coordinated using state-wide regulations. On some issues, that
`meant establishing baseline policies, and on others, it meant choosing the policy across the state.
`2.
`The Governor’s March 20, 2020 stay-at-home order sought to balance the need to
`protect Californians from infection against the need to maintain Californians’ access to vital
`supplies and services. In so doing, the Governor chose the policy on one issue: businesses
`classified by the federal government as “critical infrastructure” are essential to Californians and
`are allowed to continue operating as part of California’s coordinated response to COVID-19.
`3.
`The Order was clear on this point: “I order that Californians working in these 16
`critical infrastructure sectors may continue their work because of the importance of these sectors
`to Californians’ health and well-being.” This purpose was to “establish consistency” and that
`“the supply chain must continue, and Californians must have access to such necessities as food,
`prescriptions, and health care.” This was not a state-level baseline inviting county innovation
`above and beyond a minimum; this is an order that certain essential businesses shall be permitted
`to remain open statewide to provide essential goods and services to all Californians.
`4.
`Nevertheless, Alameda County decided that—notwithstanding the clear language
`and statewide logic of the Governor’s order on this point—it would insist that its prior (and
`subsequent) conflicting pronouncements controlled over the state-wide order. Alameda County
`thus arrogated to itself the power to force closure of businesses that the state government had
`ordered could remain open because they are federally-defined “critical infrastructure” serving
`vital security, safety, or economic needs of Californians.
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`5.
`Inexplicably, Alameda County proceeded to direct its shutdown at Tesla, even as
`Alameda County has simultaneously maintained and publicized a FAQ that expressly describes
`essential businesses in terms that encompass Tesla’s Fremont Facility:1
`My business installs distributed solar, storage, and/or electric vehicle charging
`systems – can it continue to operate?
`
`Yes, this is permissible construction activity and must comply with the Construction
`Project Safety Protocols in Appendix B of the Order. Businesses may also operate to
`manufacture distributed energy resource components, like solar panels.
`
`6.
`What is more, the County has asserted that violations of its orders carry criminal
`penalties, even though it lacks statutory or other legal authority to do so. Thus, Alameda County
`has not only created a legal quagmire by wrongly declaring that its own orders trump the state-
`level orders, it has threatened jail time and significant fines for businesses and individuals that do
`not comply, even where they are clearly authorized by the State Order to continue critical
`infrastructure activities.
`7.
`To be clear, Alameda County is not using the “existing authority of local health
`officers” to supplement a baseline set by the State, issuing policies “more restrictive than” or “in
`addition to” that baseline, as referenced in a May 4, 2020 Order. The County is making rules
`that directly contradict and undermine the policy announced by the Governor in his Orders.
`8.
`Alameda County’s power-grab not only defies the Governor’s Order, but offends
`the federal and California constitutions. First, the County’s order violates the Due Process
`Clause of the Fourteenth Amendment because it fails to give reasonable notice to persons of
`ordinary intelligence of what is forbidden under the law. By prohibiting what the Governor’s
`Order expressly permits, the County’s Order puts businesses deemed critical to the nation’s
`wellbeing by the federal and state governments between a rock and a hard place—unable to
`discern what the applicable law permits, under threat of criminal prosecution. This is precisely
`the dilemma the Due Process Clause’s requirement of fair notice seeks to avoid, particularly
`
`
`1 https://covid-19.acgov.org/index.page.
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`where, as here, there is no procedure for Plaintiff even to challenge the County’s determination
`that it is not an essential business that may continue operations under the County’s Order.
`9.
`Second, the County’s Order discriminates against identically situated parties
`without any rational basis and thereby violates the Fourteenth Amendment’s Equal Protection
`Clause. Even as at least one neighboring county is allowing car manufacturing to resume,
`Alameda County continues to insist—in violation of the Governor’s Order and against reason—
`that what is permitted in a neighboring county will endanger the public health if permitted to also
`occur within Alameda County borders. Furthermore, even as Alameda County itself declares
`businesses like Tesla essential, it somehow simultaneously insists, without rational explanation,
`that Tesla is to remain shut down
`10.
`Third, a county may only “make and enforce within its limits . . . ordinances and
`regulations not in conflict with general laws.” Calif. Const., art. XI, § 7. By purporting to
`override an express order of the Governor of California, Alameda County has far exceeded its
`ambit under the California Constitution. In sum, the County’s Orders threaten not only to close
`businesses supplying critical infrastructure, thereby violating multiple federal and state
`constitutional principles, but also to jail people pursuant to criminal statutes that simply do not
`apply here. To that extent, the County’s Orders should be declared void and without legal effect.
`THE PARTIES
`11.
`Plaintiff Tesla, Inc., is a corporation organized under the laws of Delaware, with
`its principal place of business in California.
`12.
`Defendant Alameda County, California, is a local government entity organized
`under the Constitution and laws of the State of California.
`JURISDICTION AND VENUE
`13.
`The Court has subject matter jurisdiction over the claims asserted in this action
`pursuant to 28 U.S.C. § 1331 (federal question) because this action involves interpretation of the
`Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S.
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`Constitution (U.S. Const. amend. XIV) and because the action seeks to prevent Defendants from
`interfering with federal rights.
`14.
`Jurisdiction is also appropriate in this Court pursuant to 28 U.S.C. § 1343(a)(3)–
`(4) to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom
`or usage, of any right, privilege, or immunity secured by the Constitution, and to secure equitable
`or other relief under any Act of Congress providing for the protection of civil rights.
`15.
`This Court has supplemental jurisdiction over Plaintiff’s state law claim pursuant
`to 28 U.S.C. § 1367(a) because Plaintiff’s state claim is so related to its federal claims that they
`form part of the same case or controversy under Article III of the United States Constitution.
`16.
`Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391 because all
`defendants reside in this district and most of the conduct that underlies this action occurred in the
`Northern District of California.
`17.
`There is a present and actual controversy between the parties.
`18.
`The relief requested is authorized pursuant to 28 U.S.C. §§ 2201 and 2202
`(declaratory judgment), 28 U.S.C. § 1651(a) (injunctive relief), and 42 U.S.C. § 1988 (right to
`costs, including attorneys’ fees).
`SUBSTANTIVE ALLEGATIONS
`THE GOVERNOR’S STAY-AT-HOME ORDER
`19.
`On March 4, 2020, California Governor Gavin Newsom declared a state of
`emergency to exist in California in light of the COVID-19 pandemic.
`20.
`Subsequently, on March 19, 2020, Governor Newsom signed Executive Order
`N-33-20 (the “Governor’s Order”). The Governor’s Order directs all residents “to immediately
`heed the current State public health directives,” including an order of the state public health
`officer reprinted in the Governor’s Order.
`21.
`The Governor’s Order “order[ed] all individuals living in the State of California
`to stay home or at their place of residence except as needed to maintain continuity of operations
`of the federal critical infrastructure sector as outlined at https://www.cisa.gov/identifying-
`
`I.
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`critical-infrastructure-during-covid-19.” The Governor’s Order further explained that “[t]he
`federal government has identified 16 critical infrastructure sectors whose assets, systems, and
`networks, whether physical or virtual, are considered so vital to the United States that their
`incapacitation or destruction would have a debilitating effect on security, economic security,
`public health or safety, or any combination thereof.” Governor Newsom therefore “order[ed]
`that Californians working in these 16 critical infrastructure sectors may continue their work
`because of the importance of these sectors to Californians’ health and well-being.”
`22.
`As noted above, the Governor’s Order linked to a federal website identifying the
`“16 critical infrastructure sectors.”2 Three of those sixteen sectors are relevant to this litigation:
`(i) “Transportation Equipment Manufacturing,” which includes “Vehicles and Commercial Ships
`Manufacturing”; (ii) “Electrical Equipment, Appliance, and Component Manufacturing,” which
`includes “Electric Motor Manufacturing”; and (iii) the “Energy Sector.” Governor Newsom also
`reserved the authority to “designate additional sectors as critical in order to protect the health and
`well-being of all Californians.”
`23.
`The Governor’s Order explained that it sought “to establish consistency across the
`state in order to ensure that we mitigate the impact of COVID-19.”
`24.
`The State of California created a “Frequently asked questions” regarding the
`Governor’s Order. One question asks, “How does this order interact with local orders to shelter
`in place? Does it supersede them?,” to which the State responded, “This is a statewide order.”
`Another asks whether an individual who “run[s]/work[s] at an exempted business” must “get an
`official letter of authorization from the state to operate,” to which the State responded, “No.”
`
`
`2 Identifying Critical Infrastructure During Covid-19, Cybsersecurity & Infrastructure Security
`Agency, https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19 (last revised
`Apr. 28, 2020).
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`The State went on to clarify that a “business or organization . . . in the list of exempt sectors . . .
`may still operate” without “any specific authorization from the state to do so.”3
`II.
`THE ALAMEDA COUNTY ORDERS
`25.
`Shortly before Governor Newsom issued his state-wide order, on March 16, 2020,
`the Interim Health Officer of Alameda County, Dr. Pan, issued a shelter-in-place order (“First
`County Order”). In bold text, beneath the date, the First County Order warned that “[v]iolation
`of or failure to comply with this Order is a misdemeanor punishable by fine, imprisonment, or
`both.” Under the First County Order, “[a]ll businesses with a facility in the County, except
`Essential Businesses . . . are required to cease all activities at facilities located within the County
`except Minimum Basic Operations.” By contrast, “Essential Businesses [we]re strongly
`encouraged to remain open.” The First County Order listed 21 different “Essential Businesses,”
`including “Essential Infrastructure,” but did not reference or incorporate the list of “16 critical
`infrastructure sectors” that the Governor’s Order would incorporate three days later. Finally, the
`First County Order “request[ed] that the Sheriff and all chiefs of police in the County ensure
`compliance with and enforce this Order.”
`26.
`After the Governor’s Order was issued, Dr. Pan issued a second shelter-in-place
`order superseding the First County Order (“Second County Order”). Like the First County
`Order, the Second County Order conspicuously warned that “[v]iolation of or failure to comply
`with this Order is a misdemeanor punishable by fine, imprisonment, or both,” and listed the
`criminal statutes that, as discussed herein, simply do not apply. Although largely similar to the
`list of “Essential Business” in the First County Order, the Second County Order added six
`categories of “Essential Businesses.” Specifically, it added certain types of construction,
`“[b]icycle repair and supply shops,” various real estate professionals, and various types of
`landscaping professionals, among others. Again, the Second County Order did not reference or
`
`
`3 Stay Home Order: Frequently Asked Questions, California Coronavirus (COVID-19)
`Response, https://covid19.ca.gov/stay-home-except-for-essential-needs/ (last visited May 6,
`2020).
`
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`incorporate the list of “16 critical infrastructure sectors,” which the Governor’s Order by then
`had ordered may remain open.
`27.
`The Second County Order referenced the Governor’s Order, characterizing it as
`“set[ting] baseline statewide restrictions on non-residential business activities.” The Second
`County Order purported to “adopt[] in certain respects more stringent restrictions addressing the
`particular facts and circumstances in this County.” According to the Second County Order,
`“Where a conflict exists between this Order and any state public health order related to the
`COVID-19 pandemic, the most restrictive provision controls.” In support of that assertion, the
`Second County Order cited only one statute: “California Health and Safety Code section
`131080.” California Health and Safety Code § 131080, however, does not allow a County
`Health Officer to override a statewide order. Instead, it simply provides: “The [California
`D]epartment [of Public Health] may advise all local health authorities, and, when in its judgment
`the public health is menaced, it shall control and regulate their action.”
`Finally, on April 29, 2020, Dr. Pan issued a third shelter-in-place order (“Third
`28.
`County Order”). “[I]n light of the progress achieved in slowing the spread of COVID-19 in the
`County of Alameda,” the Third County Order “allow[ed] a limited number of additional
`Essential Business to resume operating.” The Third County Order largely reiterated the
`assertions in the Second County Order regarding Alameda County’s authority to adopt “more
`stringent restrictions,” but it added for the first time: “[T]o the extent any federal guidelines
`allow activities that are not allowed by this Order, this Order controls and those activities are not
`allowed.” Again, the Third County Order did not reference or incorporate the list of “16 critical
`infrastructure sectors” that the Governor’s Order had already ordered may remain open.
`29.
`Although the County interprets its Third Order to mean otherwise, the County’s
`COVID-19 “Frequently Asked Questions” ostensibly authorizes both battery and electric vehicle
`manufacturing companies to operate. The relevant text provides:
`My business installs distributed solar, storage, and/or electric vehicle charging
`systems – can it continue to operate?
`
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`Yes, this is permissible construction activity and must comply with the Construction
`Project Safety Protocols in Appendix B of the Order. Businesses may also operate to
`manufacture distributed energy resource components, like solar panels.4
`
`
`30.
`Critically, this allowance for the “manufacture [of] distributed energy resource
`components” encompasses substantially all of Tesla’s manufacturing activities in Fremont. As
`defined by the Public Utility Commission (the state agency solely charged with regulating
`distributed energy), “distributed energy resource technology” includes both electric vehicles and
`batteries: “For purposes of this section, ‘distributed resources’ means distributed renewable
`generation resources, energy efficiency, energy storage, electric vehicles, and demand response
`technologies.” PUC § 769(a); see also, e.g., In the Matter of the Application of Pac. Gas & Elec.
`Co. for Approval of Its Elec. Vehicle Infrastructure & Educ. Program (U39e)., No. 15-02-009,
`2017 WL 1743098 (Apr. 27, 2017) (explaining that the definition of “’distributed resources’
`includes EVs).
`31.
`Through its own guidance, Alameda County has expressly recognized and
`publicized that “businesses may . . . operate to manufacture” batteries and electric vehicles.
` Inexplicably, however, the Third Order as well as County officials have simultaneously insisted
`that Tesla must remain shuttered, thereby further compounding the ambiguity, confusion and
`irrationality surrounding Alameda County’s position as to whether Tesla may resume
`manufacturing activities at its Fremont Factory and elsewhere in the County.
`32.
`Further, while the County has issued all three of its Orders under threat of
`criminal punishment, citing Health and Safety Code Section 120295 and Penal Code Sections
`148(a)(1) and 69, none of those statutes have any relevance here. Section 120295 makes it a
`crime to violate “Section 120130 or any section in Chapter 3.” Of the cited provisions, however,
`only a handful impose obligations on individual citizens, as opposed to health officials, and only
`where a health officer orders either “quarantine” or “isolation,” neither of which is applicable
`here. The former applies only to persons known to have been “exposed to a communicable
`
`4 https://covid-19.acgov.org/index.page.
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`disease” and the latter only to “infected persons.” To the contrary, Plaintiff’s workers would be
`those without known exposure or infection. Penal Code Section 148 only applies to a person
`willfully resisting, delaying, or obstructing a public official. If Penal Code Section 148 were to
`make merely going to work a crime, that would re-write those Health and Safety Code sections
`that carefully made some violations criminally enforceable and others not. Further, such an
`interpretation would expand criminality to a myriad of other rules and regulations where the
`legislature chose to impose civil penalties only: noncompliance with any civil law that a public
`official is charged with enforcing would now become criminal in nature. The only other criminal
`statute cited by the County is Penal Code Section 69, but that applies only to deterring or
`resisting a public official from performing his or her duties by means of threats, force, or
`violence.
`III. THE GOVERNOR’S REOPENING ORDER
`33.
`On May 4, 2020, Governor Newsom issued Executive Order N-60-20 concerning
`the second and third stages of California’s “four-stage framework . . . to allow Californians to
`gradually resume various activities” (“The Governor’s Reopening Order”). The Governor’s
`Reopening Order directed the State Public Health Officer to “establish criteria and procedures
`. . . to determine whether and how particular local jurisdictions may implement public health
`measures that depart from the statewide directives,” specifically “measures less restrictive than
`any public health measures implemented on a statewide basis.”
`34.
`The Governor’s Reopening Order also states that it should not be “construed to
`limit the existing authority of local health officers” to adopt “more restrictive” or “addition[al]”
`measures” (emphasis added). Under existing law, “[a] county or city may make and enforce
`within its limits all local, police, sanitary, and other ordinances and regulations not in conflict
`with general laws.” Cal. Const. art. XI, § 7 (emphasis added). And when, as here, the Governor
`exercises the State’s “police power” during a state of emergency, the Governor’s “orders and
`regulations shall have the force and effect of law.” Cal. Gov’t Code §§ 8567, 8627.
`Accordingly, the Governor’s Reopening Order only allows counties to act within their “existing
`
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`authority”—that is, to adopt measures that are consistent with the Governor’s orders or that
`address matters on which the Governor’s orders are silent. But it does not, and cannot be read to,
`allow a county to override an express permission in the Governor’s Order to continue to the
`operations of federal critical infrastructure businesses.
`IV.
`TESLA’S FREMONT FACILITY
`Plaintiff operates a factory in Fremont, California (the “Tesla Factory”), which is
`35.
`in Alameda County.
`36.
`After the First County Order was issued, Plaintiff continued to operate the Tesla
`Factory in the good-faith belief that it was exempt from the shelter-in-place order since its
`operations clearly fell within multiple federally declared critical infrastructure sectors. At the
`same time, Plaintiff encouraged any employees who felt sick or uncomfortable coming to work
`to stay at home.
`37.
`Subsequently, on March 17, 2020, Defendant Sheriff Ahern announced on Twitter
`that Plaintiff was “not an essential business as defined in the Alameda County Health Order” and
`could therefore only “maintain minimum basic operations.”5
`38.
`Plaintiff nevertheless continued to operate its plant in accordance with the federal
`and state governments’ guidance. The Tesla Factory and other facilities in Alameda County
`manufacture electric cars, electric motors, and energy storage products. Tesla’s Alameda County
`operations thus encompass three of the federal critical infrastructure sectors: (i) “Transportation
`Equipment Manufacturing,” which includes “Vehicles and Commercial Ships Manufacturing”;
`(ii) “Electrical Equipment, Appliance, and Component Manufacturing,” which includes “Electric
`Motor Manufacturing”; and (iii) the “Energy Sector.” Plaintiff therefore continued to operate the
`Tesla Factory to maintain the supply of critical federal infrastructure.
`39.
`Following that announcement, Plaintiff negotiated with Defendants in a good-
`faith effort to reach a mutually agreeable resolution. Although Plaintiff believed it had the right
`
`
`5
`
` Alameda County Sheriff (@ASCOSheriffs), Twitter (Mar. 17, 2020, 7:49 PM),
`https://twitter.com/acsosheriffs/status/1240062681635123201?s=21.
`
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`to continue operating, on March 19, 2020, Plaintiff decided to stop operations at the Tesla
`Factory at the end of the day on March 23, 2020.
`40.
`Although the Governor’s Order expressly permits the operation of the Tesla
`Factory, Plaintiff has attempted in good faith to negotiate a settlement with Alameda County to
`allow its plant to reopen and begin producing critical federal infrastructure. Nevertheless,
`Defendants continue to take the position that the Tesla Factory is not an “Essential Business”
`under the Third County Order and therefore may not reopen, regardless of the express
`permission to do so in the Governor’s Order.
`CLAIMS FOR RELIEF
`COUNT I:
`DEPRIVATION OF LIBERTY AND PROPERTY IN VIOLATION
`OF THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE
`
`41.
`Plaintiffs incorporate by reference and re-allege each and every allegation set
`forth in all preceding paragraphs as if fully set forth herein.
`42.
`The Due Process Clause of the Fourteenth Amendment provides that “[n]o State
`shall . . . deprive any person of life, liberty, or property, without due process of law.” A State
`“violates this guarantee by taking away someone’s life, liberty, or property under a criminal law
`so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so
`standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551,
`2556 (2015).
`43.
`Because the Third County Order directly contradicts the Governor’s Order, it fails
`to provide sufficient notice of which actions will potentially subject Plaintiff to the criminal
`penalties it incorrectly seeks to apply. Specifically, although the Governor’s Order allows all
`businesses operating in federal critical infrastructure to continue operating, the Third County
`Order purports to restrict the operation of many of these businesses. It would therefore be
`unclear, at best, to any person of ordinary intelligence what the Governor’s Order and the Third
`County Order collectively prohibit and allow.
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`44.
`In addition, the Third County Order would purport to impose criminal liability on
`Plaintiff and its employees should they simply follow the Governor’s directive that they “may
`continue their work because of [its] . . . importance to Californians’ health and well-being.” Yet,
`as alleged above, none of the statutory provisions cited in the County Order actually authorizes
`the imposition of criminal sanctions in these circumstances, leaving critical infrastructure
`businesses and their employees uncertain as to whether they may nonetheless be wrongfully
`prosecuted or, indeed, exactly what conduct is proscribed.
`45.
`Because the Third County Order also contradicts Alameda County’ own
`substantive guidance, in its FAQ, indicating that businesses like Tesla’s in fact qualify as
`essential, no reader of ordinary intelligence could reasonably ascertain that continuation of such
`business might constitute a criminal offense.
`46.
`In addition, Alameda County has violated the Due Process Clause insomuch as it
`fails to provide any meaningful procedure for challenging its determination that a business is
`non-essential, either pre or post deprivation of Tesla’s constitutional right to use of its property.
`Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982). Instead, the County simply
`announced by Tweet that Tesla’s operations were not essential, without any formal process.
`47.
`Plaintiff respectfully seeks a declaration that the Third County Order violates the
`Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
`COUNT II:
`VIOLATION OF THE EQUAL PROTECTION
`CLAUSE OF THE FOURTEENTH AMENDMENT
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`48.
`Plaintiffs incorporate by reference and re-allege each and every allegation set
`forth in all preceding paragraphs as if fully set forth herein.
`49. When those who appear similarly situated are nevertheless treated differently, the
`Equal Protection Clause requires at least a rational reason for the difference, to ensure that all
`persons subject to legislation or regulation are indeed being ‘treated alike, under like
`circumstances and conditions.’” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 602 (2008).
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`50.
`Yet, Tesla is permitted, and continues, to operate its factory and other facilities in
`neighboring San Joaquin County. There is no rational basis for this disparate treatment of two
`neighboring Tesla facilities both operating in federal critical infrastructure sectors, and the Order
`does not attempt to offer one. Indeed, many of Tesla’s employees at its Fremont factory reside
`in San Joaquin County. Nor does any substantial difference in the COVID-19 infection rate
`justify this disparity: San Joaquin County has experienced an infection rate of 79.3 cases per
`100,000 people and a death rate of 3.7 deaths per 100,000 people as of May 7, 2020, which is
`substantially similar to the infection rate of 114.6 per 100,000 people and death rate of 4.2 per
`100,000 people as of the same date in neighboring Alameda County.6 This disparate treatment is
`arbitrary and without a rational basis.
`51. What is more, the County has required Tesla to shutter despite announcing its
`substantive position, spelled out in its own FAQ, that businesses manufacturing the products
`Tesla manufactures should and may remain open. By shuttering Tesla in contradiction of its own
`publicly-stated rationale and definition for reopening specified businesses, Alameda County is
`acting irrationally and trying to shutter Tesla in sui generis fashion irreconcilable with Alameda
`County’s own avowed policy.
`52.
`Plaintiff respectfully seeks a declaration that the Third County Order violates the
`Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
`COUNT III:
`PREEMPTION
`53.
`Plaintiffs incorporate by reference and re-allege each and every allegation set
`forth in all preceding paragraphs as if fully set forth herein.
`54.
`Under article XI, section 7 of the California Constitution, “A county or city may
`make and enforce within its limits all local, police, sanitary, and other ordinances and regulations
`not in conflict with general laws.” Under this provision, a “State