Judge: Curtis A. Kin, Case: 21STCV40709, Date: 2022-08-16 Tentative Ruling
Case Number: 21STCV40709 Hearing Date: August 16, 2022 Dept: 72
DEMURRER TO SECOND AMENDED COMPLAINT
Case: Burlesque Enterprise, Inc. v.
The City of Los Angeles (21STCV40709)
TENTATIVE
RULING:
Defendant City of Los Angeles’ Demurrer to Second Amended
Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
A.
REQUESTS FOR JUDICIAL NOTICE
As a preliminary matter,
plaintiff Burlesque Enterprise, Inc. argues that, based on defendant City of
Los Angeles’ requests for judicial notice, the demurrer is an improper speaking
motion or motion for summary judgment or adjudication. In a demurrer, while the
Court considers only the four corners of the complaint, the Court may also
consider matters that may be judicially noticed. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) Defendant’s requests for judicial notice are well taken
based on the statutes and case law cited below. Plaintiff did not oppose
defendant’s asserted bases for requesting judicial notice. Accordingly, the
Court considers the documents attached to defendant’s requests for judicial
notice on demurrer.
Defendant City of Los Angeles’ requests to take judicial
notice of Exhibits 1-3 are GRANTED, pursuant to Evidence Code § 452(b).
Defendant’s request to take judicial notice of Exhibits 4 is GRANTED. (Venuto
v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 130, fn. 2
[taking judicial notice of zoning maps]; City of Anaheim v. Workers' Comp.
Appeals Bd. (1981) 116 Cal.App.3d 248, 261 [taking judicial notice of
distance between places].)
B.
FIRST CAUSE OF ACTION: CONSTITUTIONAL INFIRMITY
- DENIAL OF EQUAL PROTECTION
Like the prior First Amended Complaint, plaintiff fails to
allege how defendant applied Los Angeles Municipal Code (“LAMC”) § 12.70(C) in
an unequal manner. A claim based on denial of equal protection can be addressed
on demurrer. (Kimco Staffing Services, Inc. v. State of California
(2015) 236 Cal.App.4th 875, 887 [“In sum, plaintiffs did not and cannot allege
a violation of equal protection”].) “‘The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the state has adopted
a classification that affects two or more similarly situated groups in an
unequal manner.’ [Citations]” (Cooley v. Superior Court (2002) 29
Cal.4th 228, 253.) Government enforcement “‘must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification. [Citations.] Where there
are “plausible reasons’ for [the classification] “our inquiry is at an end.”’
[Citations].” (Warden v. State Bar (1999) 21 Cal.4th 628, 644.)
The Second Amended Complaint contains no allegation regarding
how the City applied LAMC § 12.70(C) or any other regulation or ordinance
in an equal manner. Rather, plaintiff alleges it is entitled to the protection
of the Stipulated Order for Permanent Injunction (“Injunction”) in Topanga
Press, Inc. et al. v. City of Los Angeles, Central District of California
Case No. CV-88-7838 as a third-party beneficiary. (SAC ¶¶ 12, 18, 19, 25, 29
& Ex. B.) “‘The test for determining whether a contract was made for the
benefit of a third person is whether an intent to benefit a third person
appears from the terms of the contract.’” (Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022, quoting Johnson
v. Holmes Tuttle Lincoln–Merc. (1958) 160 Cal.App.2d 290, 297.) The
Injunction in the Topanga matter attached to the Second Amended
Complaint as Exhibit B does not reference plaintiff at all. Therefore,
plaintiff cannot invoke the Injunction as a basis to argue that the City is
applying the Injunction unequally to plaintiff.
While plaintiff alleges that it is a third-party
beneficiary, this legal conclusion is disregarded on demurrer based on the
Injunction. (B & P Development Corp. v. City of Saratoga (1986) 185
Cal.App.3d 949, 953 [“In evaluating a demurrer, we assume the truth of all
material facts properly pleaded in the complaint unless they are contradicted
by facts judicially noticed”].)
Plaintiff added allegations to the Second Amended Complaint
concerning a letter dated April 2, 2004 that it received from the Los Angeles
Police Commission (“2004 Letter”). (SAC ¶ 19 & Ex. C.) The letter informed
plaintiff about changes in regulations and then stated: “Our records indicate
your business meets the criteria for adult entertainment.” Plaintiff alleges
that the City agreed that it was a third-party beneficiary of the Topanga
matter. This argument is without merit because the 2004 Letter contains no
reference to Topanga, nor did the letter reference LAMC § 12.70(C).
To the extent that plaintiff argues that it relied on the
2004 Letter or annual approvals of permits, plaintiff is still required to
comply with zoning regulations. (LAMC § 103.30(b) [“The granting of a permit by
the Board does not . . . (b) Relieve an applicant/permittee from compliance
with all applicable local, state, and federal laws, including those related to
building, zoning, fire, and other public safety regulations”].) Here, it is
undisputed that plaintiff violated LAMC § 12.70(C) by operating within 500 feet
of an R Zone. (RJN Ex. 4.) Even if the City allowed Burlesque to operate for
several years, this does not divest the City of the right to enforce zoning
regulations. (Golden Gate Water Ski Club v. County of Contra Costa (2008)
165 Cal.App.4th 249, 267 [finding county had right to enforce land use
requirements despite enjoyment of offending structures for 35 years]; Pettitt
v. City of Fresno (1973) 34 Cal.App.3d 813, 820 [“[T]he public and
community interest in preserving the community patterns established by zoning
laws outweighs the injustice that may be incurred by the individual in relying
upon an Invalid permit to build issued in violation of zoning laws”].)
The demurrer to the first and only cause of action is
SUSTAINED.
Because plaintiff fails to state a cause of action despite
having an opportunity to amend, leave to amend is DENIED.
Defendant City of Los Angeles is ordered to submit a
proposed judgment of dismissal within five (5) court days.