Attorney and owner of Los Angeles’s Downtown Engine Company No. 28 won a victory in court yesterday. As I wrote yesterday, the judge issued a tentative ruling in the California Restaurant Association, Inc. and Mark’s Engine Company No. 28 v. County of Los Angeles Department of Health, et al. A hearing was held at 1:30 p.m. to flesh out and cement the ruling or alter it dependent upon the arguments presented.

On November 24, the Los Angeles County Board of Supervisors, using old health data from the CDC, instituted a ban of all outdoor dining in Los Angeles County due to the increase of COVID-19 cases in the County. Geragos and the California Restaurant Association immediately filed a lawsuit to remove the ban and requested an emergency hearing.

At that hearing on December 2, Judge Chalfant ordered the county attorneys to provide medical evidence of the COVID-19 transmission via Los Angeles County outdoor dining that was being used to justify the ban.

“Los Angeles Superior Court Judge James Chalfant appeared sympathetic to legal challenges brought against the county’s ban by the California Restaurant Association and the owner of the downtown Engine Co. No. 28 restaurant, attorney Mark Geragos. But Chalfant said he was reluctant to issue an order that could have a major impact on public health without first reviewing scientific data about the danger of coronavirus transmission at an outdoor dining establishment.”

Judge Chalfant then set the hearing for December 8 to review the directed evidence and issue a ruling. While the tentative ruling could be an indicator of the direction the Judge’s final ruling might take, the arguments presented by both sides and the current science would come into play on any final judgment.

Bill Melugnin of Fox11 LA reported after yesterday’s hearing that the judge chose to make the earlier tentative injunction permanent.

UPDATE: It’s official, judge rules against L.A. County dining ban & slams the county in process, saying they provided no evidence, made an arbitrary decision, & their orders are ineffective/nobody listens.
But outdoor dining still banned under state order now.
Details 👇🏻 @FOXLA https://t.co/brP78RgBuk

— Bill Melugin (@BillFOXLA) December 8, 2020

Melugnin, and Geragos indicated the County’s arguments were weak and failed to point to any quantifiable science that would justify an outdoor dining ban, even though Judge Chalfant gave the County attorneys ample time after the December 2 ruling to present this evidence.

LAist Food Editor Elina Shatkin tweeted the entire hearing, and offered these revelatory gems:

“ ‘Judge James Chalfant explaining his decision and arguing with LA County attorneys: “I think one of the problems with pandemic is that gov’t agencies including the media are driving the fear. And the evidence shows that healthy Americans need not fear…’ […]

” ‘The health department’s job is to make sure the healthcare system is not overwhelmed… and they have to do something. The question is what do you do? You have seized on a straw. [Outdoor dining] carries a minimal risk according to the CDC…’ “

Judge Chalfant clearly stated that he wanted the L.A. County Department of Health to provide the scientific evidence that showed the correlation between COVID-19 transmission at outdoor dining establishments used to justify the ban, and the department failed at its task.

LA County's attorney is arguing that the judge has set a "borderline impossible" task for the Health Dep't to meet to do full-blown economic, social, psychological research before enacting restrictions.

— Elina Shatkin (@elinashatkin) December 8, 2020

Shatkin did a great job delving into both the county attorneys’ and Geragos’ arguments. The fact that county attorneys said the task was “borderline impossible” is particularly egregious.

Both Governor Newsom and the Los Angeles County Board of Supervisors (who voted to approve this ban), have talked about $80 million and $2 million respectively, being spent for PR purposes to “educate” the County and State on COVID-19. However, the entire nation has been dealing with 9 months of information overload from all sources on this virus. The CDC website and the LA County Health website is readily available with information to answer any questions citizens might have. Not to mention the daily and weekly press briefings given by state and federal health officials and the Governor. So, why does one need “PR” on this? Could not those millions have been spent to do a concentrated study on how outdoor dining might be affecting COVID-19 transmissions, or is that too simple?

Geragos arguing that per a statement by Mark Ghaly, the idea behind the outdoor dining ban was to keep people at home rather than specifically to prevent Covid transmission in that environment.

— Elina Shatkin (@elinashatkin) December 8, 2020

Geragos came with the receipts. The statement by Dr. Mark Ghaly said in part,

“California Health and Human Services Agency Secretary Mark Ghaly on Tuesday acknowledged the state’s regional prohibition on outdoor dining has more to do with preventing gatherings and limiting movement than the activity itself.

“ ‘The decision to include among other sectors outdoor dining and limiting that — turning to restaurants to deliver and provide takeout options instead — really has to do with the goal of trying to keep people at home, not a comment on the relative safety of outdoor dining,’ he said at a press briefing.

“ ‘We have worked hard with that industry to create safer ways for outdoor dining to happen — to keeping tables further apart, to ensuring masking happens as much as possible, to create opportunities for air circulation to continue — all of those factors make sectors like outdoor dining lower risk,’ he said.” [emphasis mine]

This is damning and shows that both the L.A. County outdoor dining ban, and the statewide ban are used as a cudgel to control, not a guide to stop the spread.

But many of us knew this.

Geragos pointed out in an interview with Shannon Bream of Fox that the County had been given three chances to produce risk analysis and new science. According to Geragos, the County attorneys tried to “browbeat the judge” and that the County attorneys’ presentation was, “Complete political theater.” KFI’s Steven Gregory tweeted about that moment in the hearing.

Now, @markgeragos lighting up the county attorneys and said this was nothing more than a power move, nothing to do with spread of #COVID19. Nothing more than political theater.

— stevengregory (@stevengregory) December 8, 2020

Because Governor Newsom chose to institute a statewide Stay-At-Home order which includes banning outdoor dining in the effected counties, outdoor dining cannot return to Los Angeles County until that ban has been lifted. Geragos has stated that suing the State of California and Governor Newsom is the next logical step in the process.