Metropolitan News-Enterprise


Monday, January 25, 2021


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Order Allowing San Diego Restaurants to Reopen Invalidated

Court of Appeal Says Judge Granted Relief Going Beyond What Adult Businesses Were Seeking


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal on Friday reversed an order allowing restaurants in San Diego County to reopen, saying that a sweeping preliminary injunction barring enforcement of state and county restrictions that were imposed in light of the COVID-19 pandemic was improperly granted because the relief went beyond that sought by the plaintiffs.

Also, the court held, the plaintiffs are not apt to prevail on the merits.

“Despite the focus of the injunction—and the interest it generated from third parties seeking to provide amicus briefs—this lawsuit was never about restaurant restrictions or the ability to dine outdoors in San Diego County,” Justice Patricia Guerrero wrote. “It was brought by two San Diego businesses that offer live nude adult entertainment as well as restaurant service.”

She continued:

“They claimed that State and County restrictions on live entertainment violated their First Amendment right to freedom of expression. They were not seeking to open their restaurants without the live entertainment component of their businesses.”

Judge’s Ruling

 San Diego Superior Court Judge Joel Wohlfeil on Dec. 16 forbade enforcement of restrictions that “prevent 1) Plaintiffs from providing live adult entertainment; and 2) San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, from continuing to operate their respective businesses, subject to protocols that are no greater than is essential to further Defendants’ response to control the spread of COVID.”

The following day, in response to a request for a clarification, Wohlfeil declared that he intended to give the green light to all restaurants in the county to reopen. One day after that, the appeals court granted a temporary stay and, on Dec. 23, declared:

“We conclude the stay should continue in place until this court can address the important legal and constitutional issues raised by the parties regarding the injunction.”

Guerrero’s Opinion

In Friday’s opinion, Guerrero said:

“A reasonable person would not understand that restaurant restrictions would be at issue in these proceedings. Throughout their briefing, the adult entertainment businesses never challenged restaurant restrictions and never articulated any basis for such a challenge. Indeed, the explicit premise of their argument was that restaurants were allowed to operate, and live entertainment did not increase the risk of COVID-19 transmission at restaurants. They said so explicitly: ‘Plaintiffs seek no more than to allow these socially distanced adult performances in their venues that are currently only allowed to operate as restaurants at 25% capacity.’

“Because the State and County parties had no notice that restaurant restrictions were at issue, the court violated due process by considering them for the first time in its order and, without any opportunity for comment, enjoining their enforcement, effective immediately.”

Success Unlikely

Guerrero agreed with the state and county that the preliminary injunction was improperly issued because the adult businesses did not show a likelihood that they will prevail on their constitutional claims, writing:

“The Regional Stay at Home Order is an all-encompassing set of restrictions on public and private gatherings, prompted by the threat of COVID-19 transmission at such gatherings. There has been no showing that conduct with a significant expressive element, let alone live nude adult entertainment, drew the restrictions in the first place. Similarly, the breadth of the Regional Stay at Home Order shows that singling out expressive activity is not an inevitable effect of its application. It does not implicate the First Amendment.”

She also agreed with the county that the wording of the preliminary injunction is impermissibly vague by not defining what is meant by the word “essential.”

The case is Midway Venture LLC v. County of San Diego, D078375.


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