COVID: Lawsuit By Walnut Creek Bar, Other Businesses On Hold

Bea Karnes

WALNUT CREEK, CA — A lawsuit filed by a Walnut Creek bar and 3 other businesses against Contra Costa County over the early adoption of a health order banning outdoor dining at restaurants is on hold for now as a state health order has since gone into full effect, making the county's earlier restrictions a moot point, an attorney for the plaintiffs said Thursday.

The suit's plaintiffs include Retro Junkie Arcade Bar in Walnut Creek, Bar Cava Wine Whiskey and Eatery in Martinez, Providence Bar and Eatery in Oakley, and Leila in the Bay in Hercules. Other restaurants have shown interest in signing on to the suit, Tully said.

On Thursday, California recorded its 2 millionth coronavirus infection. The first COVID-19 case in California was confirmed Jan. 25. It took 292 days to get to 1 million infections and just 44 days to hit 2 million. Contra Costa County is closing in on 37,000 cases.

>>See more: COVID-19 in California: 2 Million Confirmed Cases and Counting

The civil suit against Contra Costa County, filed Dec. 11 by four restaurants and bars whose owners opposed the county's early adoption of the COVID-19-related dining restrictions, is now scheduled to return to court sometime in April, said Joseph Tully, an attorney representing the restaurants.

The restaurateurs' lawsuit has been rendered moot at this point, Tully said, because the state's stay-at-home order went into effect Dec. 16, triggered by the availability of intensive care unit beds in the Bay Area going below 15 percent. The hope with restrictions, health officials have said, is to relieve crowded hospital emergency rooms to the extent possible.

The state's health order, Tully said, at that point superseded the county's order, which the lawsuit was specifically challenging. Other lawsuits are challenging the statewide order and its restrictions on outdoor dining, and Tully said "the battle goes on."

On Dec. 14, Contra Costa County Superior Court Judge Steve Austin had said he would likely ultimately affirm Contra Costa Health Services' assertion that the restaurant owners haven't made a successful case that the ban is doing irreparable harm to those businesses. A hearing had been set for Thursday for final arguments in the civil suit, but Tully said the hearing has since been rendered moot.

Contra Costa was one of five Bay Area counties that, earlier this month, shut down outdoor dining a few weeks ahead of the expected ICU bed capacity decrease kicking in. Health officials from those five counties had said with a shutdown inevitable, enacting it sooner could help slow mounting COVID-19 infections and hospitalizations sooner, and help slow the virus's spread. All nine Bay Area counties have since come under the state's stay-at-home order, which is set to lapse on Jan. 4 but could be extended.

While many health officials have said dining, indoors or out, involving multiple people is a key source of the spread of COVID-19, opponents of the dining ban have said there isn't enough evidence of that to shut down outdoor dining.

Earlier this month, several restaurants in Danville openly defied the outdoor dining ban, absorbing citations rather than stop serving outdoor diners. There also has been at least one public rally in support of those Danville restaurants.

— Patch editor Bea Karnes and Bay City News contributed to this story

This article originally appeared on the Walnut Creek Patch