A judge said Thursday he is leaning toward dismissing the state of California as a defendant in a lawsuit brought by three owners of dine-in restaurants demanding compensation for what they say was the government’s use of their property to mitigate an emergency when indoor dining was prohibited under coronavirus restrictions.
“Here, (petitioners) have not submitted any facts which could show that state defendants commandeered or utilized any personal property,” Los Angeles Superior Court Judge Jon R. Takasugi wrote in a tentative ruling. “In fact, plaintiffs allege that they continued to operate their restaurants as take-out restaurants, albeit with less business.”
The judge also noted that the restaurant owners — James P. Trani, Steve Patrick and John Marvoich — did not file an opposition to the Attorney General’s Office’s motion to dismiss the part of the case against the state. Takasugi is scheduled to hear any arguments Friday before issuing a final ruling.
In their petition filed April 12, the businessmen also named as respondents Los Angeles County and the city of Los Angeles. The parts of the case against both are not impacted by the state’s motion.
The three restaurant owners allege the forced closures amounted to a government taking and violated their rights of free speech and assembly. Their court papers do not name the restaurants they own.
“The government’s order being without any connection to the plaintiffs, and each of them, is an irrational and unnecessary order to stop the spread of the COVID-19 virus by punishing the irrelevant plaintiffs who are virus-free and pose absolutely no risk of spreading the virus,” the petition states. “Plaintiffs allege that the government shutdown order was not rationally related to a or any governmental interest as it was unsupported by any evidence and defined logic, nature, and/or common sense.”
Before the closures, Trani operated his restaurant at a profit for 30 years, while Marvoich’s eatery was in the black for 20 years and Patrick’s for 11 years, the petition states.
The plaintiffs’ businesses have never been the source of the COVID-19 or any other virus, the petition states.
“Plaintiffs have always practiced excellent sanitation practices to wipe out all contamination,” according to the petition. “The guiding principle is that customers do not return to dirty and/or diseased restaurants.”
The ongoing washing of hands as well as the sanitizing of table, counters, chairs, kitchens, utensils and uniforms is “not just customary, but mandated” by the business owners, who have adequate filtered ventilation as required by the various Health and Safety Codes to remove bacteria and virus in the air, the petition states.
“Plaintiffs had their property used by the government entities to stop a virus that was never a problem on their property,” the petition states.
The state’s March 2020 closure order “was intended to and did deprive plaintiff of fundamental right of speech and assembly and of their investment intent to make a profit,” according to the petition.
The plaintiffs daily encouraged and participated in the exchange of ideas and opinions with customers with topics ranging from politics, sports and local school districts, the petition states.
By comparison, grocery stores have seen unprecedented rates of coronavirus infections, making it likelier than ever that a co-worker or customer could become ill and that a single case could multiply into dozens, the petition states.
All of the plaintiffs have suffered emotional distress in addition to lost revenues, the petition states.