3570 East Foothill Blvd., Inc. v. City of Pasadena, CV 95-5592 ABC RMCx.

• Decision Date: 06 October 1997
• Docket Number: No. CV 95-5592 ABC RMCx.,CV 95-5592 ABC RMCx.
• Citation: 980 F.Supp. 329
• Court: U.S. District Court — Central District of California
• Parties: 3570 EAST FOOTHILL BLVD., INC., a California corporation, Plaintiff, v. CITY OF PASADENA, a Municipal corporation, William M. Paparian, Mayor of the City of Pasadena, Alvin James, Director of Planning and Permitting of the City of Pasadena, and Carol Hunt Hernandez, Advance Planner for The City of Pasadena, Defendants.

980 F.Supp. 329

3570 EAST FOOTHILL BLVD., INC., a California corporation, Plaintiff, v. CITY OF PASADENA, a Municipal corporation, William M. Paparian, Mayor of the City of Pasadena, Alvin James, Director of Planning and Permitting of the City of Pasadena, and Carol Hunt Hernandez, Advance Planner for The City of Pasadena, Defendants.

No. CV 95-5592 ABC RMCx.

United States District Court, C.D. California.

October 6, 1997.

Roger J. Diamond, Santa Monica, CA, Edward A. Weiss, Anaheim, CA, for plaintiff.

Tracy Webb, Acting City Atty., for City of Pasadena, Benjamin Kaufman, Dawn R. Andrews, Freilich, Kaufman, Fox & Sohagi, Los Angeles, CA, for defendants.

ORDER RE: DEFENDANT CITY OF PASADENA'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT

COLLINS, District Judge.

Defendant's motion for summary judgment or in the alternative partial summary judgment came on regularly for hearing before this Court on October 6, 1997. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Defendant's motion is GRANTED.

I. Factual and Procedural Background

The facts of this case are well known to the parties and do not need to be recited here. A brief summary of the facts relevant to the instant motion follows.

Plaintiff, 3570 East Foothill Blvd., Inc. ("Plaintiff") is a California corporation that owns 20/Twenty Gentleman's Club, formerly known as the "Red Hot Cafe," a restaurant/lounge/bar in the Defendant City of Pasadena ("City"). Plaintiff's restaurant offers non-adult live entertainment, including, as a result of the Court's prior Order, "bikini dancing." Plaintiff now seeks to expand the restaurant's business to include topless dancing, which would render the "20/Twenty" an "adult business" under Pasadena Municipal Code ("P.M.C.") § 17.16.050.

The City asserts that Plaintiff cannot offer adult entertainment because the "20/Twenty" is not in the appropriate zone for adult businesses. The City claims that the "20/Twenty" is located in an Industrial General ("IG") zone, where adult businesses are not permitted. See P.M.C. §§ 17.28.020 & 17.32.030. Under the P.M.C., adult businesses are permitted only in Commercial General ("CG") zones. Id. Therefore, if the City is correct in stating that the "20/Twenty" is located in an IG zone, Plaintiff is not permitted to offer adult entertainment at the "20/Twenty's" current location.

However, Plaintiff disputes that its business is located in an IG zone. Plaintiff asserts that, as of January 23, 1995, the Pasadena City Council gave effect to an "Interim East Pasadena Specific Plan" ("Specific Plan") which changed the zone in which Plaintiff's business is located to a CG zone. Alternatively, Plaintiff contends that the City has delayed its implementation of the "East Pasadena Specific Plan" for the purpose of "preventing and prohibiting Plaintiff from presenting topless dancing at its place of business." Supp. Comp. at ¶ 14. Furthermore, Plaintiff alleges that even if its business is not located in a CG zone, the City's entire adult business zoning scheme is unconstitutional because it provides too few permissible locations for adult businesses, denying them a reasonable opportunity for expression in violation of the free speech and due process clauses of the First and Fourteenth amendments. Therefore, Plaintiff asserts that it is entitled to offer adult entertainment, regardless of the zone in which its business is located.

On August 21, 1995, Plaintiff filed a Complaint against Defendant, the City of Pasadena ("City"), under 42 U.S.C. § 1983, seeking a declaratory judgment that Pasadena's adult business zoning ordinances, conditional use permit and live entertainment permit ordinances are unconstitutional on their face. In addition to a declaratory judgment, Plaintiff seeks injunctive relief, damages, costs, and attorney's fees under 42 U.S.C. § 1988. On October 17, 1995, Plaintiff filed a First Amended Complaint ("FAC") on the same grounds, seeking similar relief, but additionally requesting a declaratory judgment that the "20/Twenty" is located in a CG zone under the "Specific Plan."¹

Also on October 17, 1995, Plaintiff applied for a temporary restraining order ("TRO") to enjoin enforcement of Pasadena's conditional use permit and live entertainment permit ordinances. On October 26, 1995, the Court granted Plaintiff's TRO, thus enjoining the enforcement of the City's permitting ordinances. In the same Order, the court consolidated the trial on the merits of Plaintiff's constitutional challenge to the permitting ordinances with the hearing on Plaintiff's application for a preliminary injunction against enforcement of the City's adult zoning ordinance. The consolidated trial and hearing took place before the Court on November 17, 1995. In its November 27, 1995 Order (amended by Minute Order on December 12, 1995) the Court permanently enjoined the City from enforcing its conditional use permit and live entertainment ordinances as to all expressive activities protected by the First Amendment. In its December 20, 1995 Order, the Court denied Plaintiff's application for preliminary injunction ordering the City to apply terms of the "Specific Plan" changing its business' zone from IG to CG and denied Plaintiff's application for an injunction against the City's enforcement of its adult business zoning restrictions.

On April 28, 1997, Plaintiff filed a Supplemental Complaint alleging that the City has delayed completion of the Environmental Impact Report necessary to amend its General Plan to achieve consistency with the "East Pasadena Specific Plan" for the predominate purpose of preventing Plaintiff from presenting topless dancing.² On July 22, 1997, the City filed the instant motion for summary judgment or in the alternative partial summary judgment on the three remaining issues in this case: (1) whether the City has given effect to the January 23, 1995 Draft East Pasadena Specific Plan such that Plaintiff's business is now in the proper zoning for an adult business; (2) whether the predominate purpose of the City's failure to adopt the East Pasadena Specific Plan is to prevent Plaintiff from exercising its First Amendment rights; and (3) whether there are sufficient alternative sites in the City for adult businesses to locate to provide them with a reasonable opportunity for expression. On July 29, 1997, Plaintiff filed an Opposition to the City's Motion for Summary Judgment. The City filed a Reply on September 29, 1997.

II. Discussion

A. Summary Judgment Standard

It is the burden of the party who moves for summary judgment to establish that there is "no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). If the moving party has the burden of proof at trial (the plaintiff on a claim for relief, or the defendant on an affirmative defense), the moving party must make a showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). This means that, if the moving party has the burden of proof at trial, that party must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in that party's favor. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). Furthermore, the court must view the evidence presented to establish these elements "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

If the opponent has the burden of proof at trial, then the moving party has no burden to negate the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In other words, the moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. at 2553-54. "Instead, ... the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party satisfies this initial burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings ... [T]he adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). A "genuine issue" of material fact exists only when the nonmoving party makes a sufficient showing to establish an essential element to that party's case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a reasonable jury could reasonably find for plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Id. at 248, 106 S.Ct. at 2510; Griffeth v. Utah Power & Light Co., 226 F.2d 661, 669 (9th Cir.1955).

B. Analysis

In the instant case, it is the nonmoving party — Plaintiff — who bears the burden of proof at trial. Thus, to prevail on this motion, the moving defendant, the City, must initially establish that there is an absence of evidence to support Plaintiff's claims. To overcome this motion for summary judgment, Plaintiff must then set forth sufficient evidence on which a reasonable jury could...