Fresno restaurants try again to overturn Newsom’s ban

A coalition of restaurants seeking to overturn Gov. Gavin Newsom's coronavirus restrictions filed an amended complaint on Friday, one month after a judge dismissed their original case.

The complaint signed by Nathan S. Miller with Miller & Ayala LLP in Fresno calls Newsom's restrictions on in-person dining "well-intentioned" but "draconian." Culinary Studios, Inc. v. Newsom, 1:20-cv-01340-AWI-EPG (E.D. Cal., filed Sept. 21, 2020).

The complaint asks for $200 million in damages. Miller called this "just compensation required by the Fifth Amendment." He said the ban on indoor dining has cost each restaurant plaintiff at least 80% of their business.

"The governor's initial executive order was premised on the perceived need to 'flatten the curve' so as to avoid overwhelming the state's hospitals and health care centers, not to eradicate the virus," Miller wrote. "Although the curve has been flattened for several months now, the governor has nonetheless issued stricter and confusing executive orders that unreasonably and unnecessarily interfere with plaintiffs', and those similarly situated, constitutional rights."

He is seeking to enjoin the state limits on indoor dining and ordinances passed by the city and county of Fresno. The complaint also named Fresno Mayor Lee Brand and other government agencies.

Miller made due process and equal protection claims under the 14th Amendment and the takings clause of the Fifth Amendment. Senior U.S. District Judge Anthony W. Ishii dismissed these claims last month with leave to amend.

But Ishii's Feb. 6 order appeared to be skeptical of the plaintiffs' overall case. His rationale included a citation to one of the few cases to overturn portions of Newsom's orders.

"As Chief Justice [John] Roberts noted in his concurrence in South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020), where officials act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad and should not be subject to second guessing by an unelected federal judiciary," Ishii wrote.

While South Bay allows courts to overturn orders that "have no real or substantial relation to legitimate public health ends," Ishii wrote that this did not appear to apply to restrictions on restaurants. Under the current state and local rules, he noted, in-person dining could begin again in areas where case rates have dropped below a particular level.

"The challenged orders do not ban plaintiffs' businesses or require their complete closure, rather, they only require that businesses temporarily conduct any activities outdoors while Fresno County remains in the purple tier," Ishii wrote.