Pismo’s owner accuses Fresno city councilman of killing project due to COVID lawsuit
.jpeg "Restaurateur David Fansler owns three restaurants on the Top 10 list of Bee readers’ favorite restaurants: Pismo’s Coastal Grill, Westwoods BBQ & Spice Co. and Yosemite Ranch. Fansler is pictured here in this Fresno Bee file photo from July, 2020")
A prominent local restaurateur claims Fresno City Councilmember Miguel Arias killed plans for a new Pismo’s Coastal Grill as leverage to get the restaurant owner to settle another lawsuit against the city.
Attorney Warren Paboojian filed the legal claim last week on behalf of Dave Fansler, owner of the popular Pismo’s, Westwoods BBQ and Yosemite Ranch restaurants. Typically such a claim is a precursor to a lawsuit. Fansler’s seeking unspecified damages exceeding $10,000.
Fansler in 2020 sued the city of Fresno after officials said Pismo’s violated COVID-19 outdoor dining rules. At the time, California only allowed outdoor dining because of the high number of COVID-19 cases. Fansler later received millions from the federal Paycheck Protection Program, or PPP, loans for his three Fresno restaurants. Fansler also took part in a 2020 rally that encouraged businesses to reopen even if they were not given permission.
Arias noted that he alone could not kill such a project, and city records show the city council approved the agenda in question, including Councilmember Mike Karbassi’s motion to table Fansler’s application to be considered in December.
Arias dismissed the claim as Fansler’s attempt to bully him into a decision that would benefit his development project.
Claim for damages
In the new claim, Fansler said for years he laid the groundwork to develop a parcel of property on West Nees Avenue between North Ingram and Blackstone avenues. The land currently is zoned for high-density housing, or as much as 45 apartment units. Fansler wants the city council to rezone the property, clearing his way to building a new Pismo’s.
The Fresno Planning Commission already approved the application.
The claim alleges Arias “engaged in illegal and wrongful conduct by unilaterally and unjustifiably removing David Fansler’s Plan Amendment and Rezoning Application from the City Council’s agenda for the purpose of holding that adoption and approval hostage unless David Fansler settles his pending lawsuit against the city of Fresno and Councilmember Arias.”
Fansler in the claim says that Arias interfered with his business; intentionally inflicted upon him emotional distress; violated his constitutional rights and of painting him as a COVID denier.
“Councilmember Arias’ conduct, as alleged herein, represents extreme and outrageous conduct and conduct which went beyond all bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized society,” the claim says. “This conduct would cause an average member of the community to react with outrage, especially given that city councilmembers such as Councilmember Arias are elected to protect the public.…”
Paboojian also is representing Fansler in the COVID-related lawsuit against the city.
Paboojian is perhaps best known for winning high profile cases against public agencies, particularly police misconduct cases, and then securing lofty settlements or damages for his clients.
In a statement to The Bee, Arias dismissed the claim.
“His claim is premature given the Council hasn’t considered the item,” Arias said. “It seems like an attempt to bully the legislative body into a decision that has the potential to violate state law and undermine our city’s ability to build more housing in the midst of a housing crisis.
“I am confident the council will consider this item on its own merit, irrespective of the bullying tactics and baseless attempt to sue elected officials personally,” Arias said. “Such a retaliatory and bullying tactic has proven ineffective and will not persuade me to give Fansler or anyone else special treatment.”
Private conversation
At first glance, the claim appears to inaccurately describe what occurred at the Nov. 17 city council meeting.
The claim alleges Arias removed the agenda item on purpose so that Fansler could not move forward with his development plan.
“After getting unanimous Planning Commission approval, it’s kind of a slam dunk when you go to City Hall,” Fansler told The Bee in a phone interview. “City Council just has to kind of bless it and vote on it. So I was very stunned at that time that it got pulled from the calendar.”
Fansler told The Bee in the phone conversation that Arias removed the agenda item.
“He wanted to hold it hostage to settle that other suit,” Fansler said. “That’s against the law.”
However, Arias did not remove the application from the Nov. 17 council agenda.
Councilmember Karbassi, who represents the area where Fansler’s land is located, tabled the item until the Dec. 15 meeting. That means the item will reappear on that agenda for council consideration.
Paboojian said that during the meeting, Karbassi approached Fansler and his consultant, Dirk Poeschel. Karbassi told the two that Arias wanted to postpone the Fansler rezone vote to see if Fansler would dismiss his other lawsuit. Those details were not listed in the claim.
Karbassi did not respond to The Bee’s request for comment until Friday, a day after publication of this story.
“The claims made regarding my conversation with the applicant, as reported by The Bee, do not track with reality,” he said about Fansler’s claims.
“Mr. Fansler feels he is being punished by Mr. Arias for exercising his First Amendment right of free speech during this whole process and by the filing of the previous lawsuit,” Paboojian said. “The city attorney should investigate the conduct of Mr. Arias. The only bully here is Councilmember Arias, and that is why we filed a claim against him and the city.”
Fansler’s original lawsuit has seen minimal movement this year. A case management hearing is scheduled for March in Fresno County Superior Court.
This story was originally published December 1, 2022 at 8:57 AM.