Judge Holly J. Fujie, Case Number: 24STCV18951, Date: 2025-05-28 Tentative Ruling

Plaintiff 4600 Sunset Blvd., Inc. (“Plaintiff”) sues Defendants City of Los Angeles, City of Los Angeles Board of Police Commissioners, and Does 1 through 50, inclusive, pursuant to a July 30, 2024 complaint (the “Complaint”) alleging causes of action for: (1) denial of due process; (2) denial of liberty of speech; (3) chilling effect on exercise of liberty of speech; and (4) statutory inapplicability.

Plaintiff is the owner and operator of a business known as “Cheetahs” located at 4600 Hollywood Boulevard, Los Angeles, CA 90027. Plaintiff alleges that, in March 2024, Defendant sent Plaintiff a letter improperly divesting Plaintiff’s “Café Entertainment and Shows” permit without affording Plaintiff necessary due process.

On February 24, 2025, Defendant filed the instant motion for judgment on the pleadings (the “Motion”). On March 20, 2025, Plaintiff filed an opposition (the “Opposition”). On May 20, 2025, Defendant filed a reply (the “Reply”).

"A motion for judgment on the pleadings is analogous to a general demurrer, but is made after the time to file a demurrer has expired." (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196.) If the party moving for judgment on the pleadings is a defendant, there are only two permissible grounds for bringing the motion: the court lacks subject matter jurisdiction or the complaint "does not state facts sufficient to constitute a cause of action against that defendant." (Code of Civil Procedure (“CCP”), § 438, subd. (c)(1)(b)(ii).)

“Because the motion is, in effect, a general demurrer, the same rules apply.” (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Therefore, when determining whether a complaint fails to state facts sufficient to constitute a cause of action, the court must treat the complaint as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.)

If the court grants the motion, it may permit the opposing party to amend the pleading. (CCP, § 438, subd. (h)(1).) If granting leave to amend, the court must allow the party 30 days to file the amended pleading. (CCP § 438, subd. (h)(2).) But “[i]f there is no liability as a matter of law, leave to amend should not be granted.” (Schonfeldt, supra, 61 Cal.App.4th at 1465.)

Defendant moves for judgment on the pleadings on the grounds that the Complaint fails to state a cause of action because Los Angeles Municipal Code (“LAMC”) section 103.08 does not violate the due process provisions of the California Constitution.

Under the California Constitution, “[a] person may not be deprived of life, liberty, or property without due process of law.” (Cal. Const. Art. I, § 7(a).) Procedural due process principles “require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; see also 420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1316, 1342 (“420 Caregivers”).) “[O]nly those governmental decisions which are¿adjudicative¿in nature are subject to procedural due process principles.¿Legislative¿action is not burdened by such requirements.” (Horn, supra, 24 Cal.3d at 612.) At a minimum, an agency must provide private parties with adequate notice and opportunity for a fair hearing, meaning an opportunity to be heard at a meaningful time and in a meaningful manner. (Today's Fresh Start, Inc. v. Los Angeles County Office of Ed., (2013) 57 Cal.4th 197, 212.)

LAMC section 103.08 states: “A permit issued by the Board may not be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall thereafter be null and void. A permit held by a corporation or partnership or other business entity is subject to the same rules of transferability as stated above. A new permit shall be required for a transfer of stock that causes a change in the controlling interest in a corporate permittee, and for a change in the majority ownership of a partnership or other legal entity, whether by sale, exchange or other means.”

The Complaint alleges that Cheetahs has been in operation since 2005 and that in June 2023, Bob Simoni became Cheetah’s sole shareholder and officer. (Compl., ¶¶ 1-2.) On March 25, 2024, Defendant sent Plaintiff a letter which states, “the Los Angeles Police Department was made aware that the business may have been transferred to a new owner. Pursuant to Los Angeles Municipal Code (LAMC) Section 103.08 PERMITS NON-TRANSFERABLE, which states in part, “A permit issued by the Board may not be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall thereafter be null and void…,” therefore, your Police Commission Permit is deemed null and void.” (Compl., Ex. C-1.) The letter further states, “You are hereby notified that you SHALL cease operations immediately and take appropriate corrective action.” (Compl., Ex. C-1.)

Defendant argues that it did not divest or revoke Plaintiff’s permit, but rather that pursuant to the language of LAMC section 103.08, Plaintiff’s voluntary transfer of ownership of the business amounted to a voluntary surrender of the permit. (Mot., p. 8:8-17.) Defendant also argues that LAMC section 103.08 is not unconstitutional because the provision is enforceable only through civil or criminal proceedings, wherein due process is provided. (Mot., pp. 10:20-12:8.)

In the Opposition, Plaintiff argues that LAMC section 103.08 and Defendant’s letter declaring Plaintiff’s permit to be ‘null and void’ and ordering Plaintiff to ‘cease operations immediately’ constitute immediate nullification of a permit without prior notice or an opportunity to be heard thus violating Plaintiff’s right to due process. (Opp., pp. 4:24-5:25.)

The Court finds 420 Caregivers, supra, to be instructive here. In 420 Caregivers, the City of Los Angeles sent letters to various businesses informing them that they were not in compliance with the requirements of a city ordinance and that they must cease operations immediately. (420 Caregivers, supra, 219 Cal.App.4th at 1316.) The businesses subsequently sued the City of Los Angeles to enjoin enforcement of the ordinance. (Id.) In ruling on the alleged due process violations, the Court of Appeal found that “[t]he letter, since not part of the statute's enforcement scheme, cannot serve as a basis for a ruling that the Ordinance violates California due process. It is nothing more than an advisory letter, which states the opinion of the City's chief prosecutor that the collective is or will be in violation of the Ordinance. It does not, and cannot, by itself enforce the Ordinance.” (Id. at 1343.) The Court of Appeal concluded that because the ordinance did “not provide for its own summary administrative enforcement,” it did not implicate due process concerns. (Id.) The Court observed that the ordinance was “enforceable by the City only if the City commences formal legal proceedings—misdemeanor criminal prosecutions, nuisance actions, or civil suits—subject to all the procedural protections that full adversarial hearings provide.” (Id.)

The Complaint here alleges that Defendant sent Plaintiff a letter informing Plaintiff that it was not in compliance with the rules pertaining to the issuance of a Café Entertainment and Shows permit. The letter requested that Plaintiff provide certain records to show that the business was in compliance or otherwise take appropriate corrective action to start the permit process. (Compl., Ex. C-1.) Upon review, LAMC section 103.08 does not provide its own administrative enforcement scheme and rather is enforced through LAMC’s civil and criminal enforcement provisions. (see LAMC, § 103.08)

Plaintiff argues that 420 Caregivers is distinguishable to the circumstances alleged here because the letter in 420 Caregivers was merely a “courtesy letter.” (Opp., p. 12:15.) The letter in 420 Caregivers informed the recipient businesses that they “could not comply with the Ordinance, and therefore, that they must cease operation immediately.” (420 Caregivers, supra, 219 Cal.App.4th at 1341.) This is similar to the letter received here, notifying Plaintiff of noncompliance with the code, requiring an immediate cessation of operations and requesting records to demonstrate compliance if the notice was sent in error. The letter also instructs Plaintiff on whom to contact to take corrective action to start the new permit process. Each letter notifies a business that it is in violation of a city ordinance or code and demands that the business cease operations immediately. The letters do not, and cannot, by themselves, enforce the code or deprive the business of a statutory benefit. (See 420 Caregivers, supra, 219 Cal.App.4th at 1345.) To enforce the code, “the City is required to file either a civil or criminal lawsuit which, of course, will trigger the full adversarial protections provided any litigant in any court action.” (Id.) Thus, the Court finds that the letter from Defendant is not part of LAMC section 103.08’s enforcement scheme and thus cannot serve as a basis for a cause of action that the code section violates California due process.

Plaintiff further argues that LAMC section 103.08 is “completely dissimilar from the code discussed in 420 Caregivers, LLC in that it very definitely constitutes its own summary revocation decision and provides for no Due Process whatsoever.” (Opp., p. 12:7-9.) The Court disagrees. LAMC section 103.08 provides that a transfer of the business shall render the permit null and void. (see LAMC, § 103.08) The relevant ordinance in 420 Caregivers also required businesses not in compliance with its provisions “to cease operation immediately.” (420 Caregivers, supra, 219 Cal.App.4th 1316 at 1329.) Both provisions outline requirements for continued operation and specify within the ordinance itself that failure to comply with those conditions will prohibit the business from remaining in lawful operation. The Court sees no meaningful distinction between 420 Caregivers and the allegations in the immediate Complaint. 420 Caregivers is directly applicable and serves as binding authority here.

Thus, based on the foregoing, Plaintiff has failed to allege facts sufficient to state a cause of action.

Defendant’s Motion for Judgment on the Pleadings is GRANTED, with 30 days leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court