MNLA photo by Jay Martin

A countersuit filed by the former owner of the Tinhorn Flats Saloon & Grill and his children against the city of Burbank over the city’s shutdown of the eatery in 2021 during the coronavirus pandemic can move forward on its one cause of action for alleged violation of the First Amendment, a judge ruled Monday.

Los Angeles Superior Court Judge Douglas W. Stern denied a motion by the city’s lawyers to dismiss the countersuit brought last Oct. 12 by former Tinhorn Flats owner Baret Lepejian, along with his operating company, Barfly Inc., and children, Lucas and Talya Lepejian. The city had started the dueling litigation by filing a public nuisance suit against the restaurant and the Lepejian family members in March 2021.

Lawyers on both sides submitted on Stern’s tentative ruling Monday without offering arguments, so the judge finalized his decision. Trial of the case is set for Sept. 6, 2023.

The restaurant owner and his children allege the city tried to chill their free speech rights by enforcing rules specifically against Tinhorn Flats, but not other restaurants, with the intent of silencing and punishing them for expressing their beliefs.

“The allegation that the city enforced rules against Barfly, but not other similarly situated restaurants, is a sufficient allegation of ultimate fact (for a jury to decide),” Stern wrote. “If true, that allegation can be proven by objective evidence. Whether that allegation of objective fact is true cannot be resolved on the pleadings.”

The judge also noted that the countersuit alleges the eatery owner and his children were vocal about their opposition to the shutdown orders.

“Publicly expressing political views is constitutionally protected activity,” Stern wrote.

In their court papers, lawyers for the city denied any infringement of the Lepejians’ free-speech rights occurred.

“There are insufficient allegations and no judicially noticeable evidence which demonstrate that the city’s disagreement with Barfly’s message was the basis of the city’s legal action,” the city’s lawyers argued in their court papers.

Baret Lepejian, who lived in Thailand while his children operated the restaurant, previously said he supported their criticisms of the city amid the pandemic and vowed not to pay the roughly $50,000 in fines that were levied against the business.

In June 2021, Baret Lepejian’s ex-wife, Isabelle Lepejian, obtained possession of the Burbank restaurant, successfully completing an eviction process she initiated against the eatery as the property owner. She also is the mother of the Lepejian children, including Lucas Lepejian, then 20, who was arrested by Burbank police for being on the property when he was allegedly not permitted to be there and often railed against the COVID-19 health mandates affecting the business.

Isabelle Lepejian later sold the property to Old Fashioned Investment LLC. The eviction was separate from actions taken by Los Angeles Superior Court Judge Mitchell L. Beckloff, who imposed a preliminary injunction and levied $1,150 in sanctions against Barfly Inc. due to the eatery’s lack of proper operating permits.

In early 2021, the Los Angeles County Department of Public Health revoked Tinhorn Flats’ health permit, and its conditional-use permit was subsequently canceled by the Burbank City Council. The preliminary injunction required the business to stay closed until it obtained the legally required permits to reopen.

The city maintained the restaurant was an ongoing public nuisance. The county and city actions took place after numerous complaints were received about the eatery’s continued offering of outdoor dining on its patio in violation of the applicable health officer orders at a time when such activity was banned in Los Angeles County, according to the city’s court papers.

The outdoor dining prohibition was relaxed in late January 2021, but Tinhorn Flats was not allowed to resume business because of its lack of permits.

According to the countersuit, studies have proven that outdoor dining provides key areas of health and wellness that have been sacrificed unnecessarily under the guise of eliminating a threat to health.

But in their court papers, lawyers for the City Attorney’s Office state that many courts have rejected similar civil rights claims filed by other businesses, including restaurants, whose owners alleged that COVID-19 restrictions violated their constitutional rights.

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