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Court of Appeal, First District, Division 2, California.

CITY OF ALAMEDA, Plaintiff and Respondent, v. John W. Van HORN, Defendant and Appellant.


Decided: November 08, 1985

Robert N. Weaver, Oakland, Foreman & Brasso, Ronald D. Foreman, San Francisco, Cal., for defendant and appellant Van Horn. Carter J. Stroud, City Atty., Alameda, for plaintiff and respondent City of Alameda.

Appellant John W. Van Horn has, since 1971, owned and operated the Alouette Studio, a massage parlor located in leased premises at 745 Buena Vista Avenue in the City of Alameda (city).   In 1977, responding to perceived adverse effects on city neighborhoods caused by “adult entertainment activities,” the city council amended the city's municipal code by ordinance (City of Alameda Ordinance Nos. 1849 and 1865, N.S., adding art. 4E to Alameda Municipal Code, tit. XI, ch. 1;  hereinafter the “ordinance”) to regulate concentration of those activities within the city.1  A “massage parlor,” listed as an “adult entertainment activity” under the ordinance, is a use permitted only in commercial (“C–2”) or “less restrictive” zones and may not exist within 500 feet of a residential zone or within 1,000 feet of another adult entertainment activity.   Nonconforming uses (which by a 1981 amending ordinance specifically include nonconforming massage parlors [Ordinance No. 2049, N.S.] ) could continue for one year or, with a conditional use permit, up to two years more in cases of hardship.

The city filed an action against Van Horn in October 1982 to enjoin a violation of the ordinance, alleging that the Alouette Studio was operating within 500 feet of a residential zone.   After a successful demurrer, Van Horn answered the city's first amended complaint and cross-complained for declaratory and injunctive relief.   He alleged, both in the cross-complaint and by way of affirmative defense, that the ordinance was, on various theories, unconstitutional on its face and as applied.

The city thereafter moved for summary judgment, supporting the motion with papers establishing that the massage parlor was operating within 500 feet of a residential zone and that a one-year extension granted to Van Horn had expired.   In opposition, Van Horn argued that the ordinance was invalid as an unreasonable exercise of the city's police power in that, while the ordinance purported merely to regulate the location of adult entertainment activities, it had the practical effect of prohibiting entirely the operation of a massage parlor.   He offered maps and declarations to show that his was the only remaining massage parlor in the city and that all areas in which a massage parlor could be operated in compliance with the ordinance were either unavailable or unsuitable.   The motion was granted on June 3, 1983, after a hearing.   In its order, the court concluded that the ordinance was valid, that the Alouette Studio was operating in violation of it and that Van Horn had not presented “any evidence adequate to raise the issue of total exclusion․”

Upon a motion for new trial, Van Horn offered new evidence on the availability of alternative sites for massage parlors.   On July 28, after the court denied the new trial motion, Van Horn filed a timely notice of appeal, from both the June 3 judgment and the denial of a new trial.   Because denial of a motion for new trial is not an appealable order, we will, as a technical matter of procedure, have to order the purported appeal therefrom dismissed.   Nevertheless, denial of the motion is fully reviewable in conjunction with our review of the summary judgment.  (Code Civ.Proc., §§ 437c, subd. (l ), 904.1;  Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187, fn. 2, 1192, 198 Cal.Rptr. 447.)


The propriety of a summary judgment is tested by these rules:  “[T]he trial court must determine whether the defendant has by affidavit presented any facts that give rise to a triable issue.  [Citations.]  The court does not resolve conflicting factual allegations, for the purpose of the procedure is to discover whether the parties have evidence requiring assessment at a trial.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for trial.  [Citations.]  Accordingly, the affidavits of the moving party are strictly construed and those of his opponent, even if in conclusionary terms, are liberally construed.   Summary judgment is proper only if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue.”  (R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 376–377, 57 Cal.Rptr. 841, 425 P.2d 785;  Code Civ.Proc., § 437c, subd. (c).)

We need not examine whether respondent city established the complained-of violation of the ordinance for appellant concedes the violation on appeal and never disputed it in the trial court.   His contentions on appeal are that (1) the total prohibition of massage parlors would be beyond the police power of respondent city and (2) he sufficiently raised, in opposition to summary judgment, a triable issue of fact as to whether the ordinance, while regulatory on its face, in fact constitutes a total prohibition.   The city takes the position that appellant's affidavits did not “demonstrate a total prohibition” and that, even if they did, lack of a First Amendment right implicated in the operation of appellant's business means that even a total ban is not prohibited.


 First, we cannot agree that appellant failed to raise a triable issue of fact on the question of total prohibition.   The issue of total prohibition—most frequently arising in cases where the effect of an adult entertainment ordinance threatens to substantially restrict public access to protected First Amendment activity, such as where the regulated business is an adult bookstore or theater—poses a question of fact.  (Alexander v. City of Minneapolis (D.Minn.1982) 531 F.Supp. 1162, 1172 [economic and practical realities cannot be ignored in evaluating the actual effect of the ordinance], affd. (8th Cir.1983) 698 F.2d 936;  City of Vallejo v. Adult Books (1985) 167 Cal.App.3d 1169, 1179–1180, 213 Cal.Rptr. 143;  City of Whittier v. Walnut Properties, Inc. (1983) 149 Cal.App.3d 633, 641–642, 197 Cal.Rptr. 127 [remand necessary for evidence on the issue of available relocation sites];  Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 887–888 & fn. 7, 200 Cal.Rptr. 47 [review limited to facial validity of ordinance where there was no evidence on availability of suitable sites].)

In opposition to the summary judgment motion, appellant submitted declarations by himself and attorney Robert Weaver.   Weaver declared that he had prepared a zoning map (submitted on the motion) which showed three commercial locations within the city that would satisfy the linear distance requirements of the ordinance.   One location, on Park Street, would “only marginally qualify,” but the one building at that location was occupied.   A second location, at the Southshore Shopping Center, a retail center, was also fully occupied.   Mariner Square, a third location in an area “comprised of restaurants, offices, marinas and related businesses,” was, in his opinion, inappropriate for a massage parlor, as was the shopping center, since appellant's business was service rather than retail oriented.   The only other available areas were less-restrictive-use areas, such as general or intermediate industrial zones, which were “wholly inappropriate for a service business” such as appellant's and were occupied by manufacturing, shipping and other heavy industry.   The city had, according to a 1980 census, a population of 63,852 and was comprised of 22.8 square miles.

Appellant declared that his was the only operating massage studio in the city.   City officials had informed him that the only two permitted sites for his business would be at either Mariner Square or Southshore Shopping Center, but he had contacted individuals at both locations who told him that he would not be allowed to rent there.   Moreover, he knew from personal familiarity with the locations that there was no space currently available in the shopping center.   Mariner Square had space available but at a rental rate ($1.35 a square foot) that he could not afford.   Private investigator Seth Derish declared that the only active use permit on file with the city planning department for the years 1971 to the present was a 1978 permit filed by appellant.

That showing was then bolstered upon the motion for a new trial (Green v. Del-Camp Investments, Inc. (1961) 193 Cal.App.2d 479, 481, 14 Cal.Rptr. 420 [a new trial motion lies following summary judgment] ) by the declaration of John A. Flanders, a licensed real estate broker specializing in the sale and leasing of commercial and industrial property in Alameda.2  Based on a week-long study, Flanders gave a detailed analysis of the various sites, assessing them with regard to the needs of a massage parlor business and the requirements imposed by the city for obtaining a necessary conditional use permit.   His declaration contained opinions as to each available site and concluded:  “It is my opinion that there are no locations presently available within the City of Alameda suitable for an adult massage studio, and that the zoning plan presently in force effectively prevents the location of a massage studio within the City, and will continue to do so.”

We conclude that the evidence, liberally construed, showed “facts sufficient to present a triable issue.”  (R.B. Reeder Lathing Co. v. Allen, supra, 66 Cal.2d 373, 377, 57 Cal.Rptr. 841, 425 P.2d 785.) 3


The remaining question in determining the propriety of the summary judgment is whether the triable issue of fact—i.e., total prohibition—is material to the action.   Respondent city contends that it is not and relies on Town of Los Altos Hills v. Adobe Creek Properties, Inc. (1973) 32 Cal.App.3d 488, 108 Cal.Rptr. 271, for the proposition that “[t]otal bans on a business are not prohibited per se.”   Respondent's argument goes too far.   Although total prohibition of a non-First Amendment business activity may in the run of cases prove constitutional, it does not follow that total prohibition is constitutional in all such cases.   The constitutional issue is not a foregone conclusion, yet it was not reached in this case because the trial court erroneously granted summary judgment on the threshold issue of whether the ordinance had a totally prohibitory effect.

 Appellant challenges total prohibition as an invalid exercise of the city's police power.4  “A ․ city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  (Cal. Const., art. XI, § 7;  see also Gov.Code, §§ 51030–51034, authorizing cities to enact licensing ordinances for the business of massage.)  “The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life both in urban and rural communities.   But the zoning power is not infinite and unchallengeable;  it ‘must be exercised within constitutional limits.’  [Citation.]  Accordingly, it is subject to judicial review;  and as is most often the case, the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed.  [Citation.]”  (Schad v. Mount Ephraim (1981) 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671.)  “[W]hen a zoning law impinges upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.”  (Ibid., fn. omitted.)   Thus, a total exclusion of an activity or business that involves First Amendment values would rarely be countenanced.  (See, e.g., id., at pp. 75–76, 101 S.Ct. at 2186 [all entertainment];  City of Whittier v. Walnut Properties, Inc., supra, 149 Cal.App.3d 633, 640 & fn. 3, 197 Cal.Rptr. 127 [all “adult business”].)

 Respondent correctly observes that the operation of a massage parlor, unlike the operation of a bookstore or theater, does not implicate First Amendment rights.   In the context of a due process challenge to municipal regulation of massage establishments and technicians, the court in Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 201 Cal.Rptr. 70, rejected the notion that strict scrutiny was the appropriate standard of review:  “Operation of a massage business is not a fundamental right.   Such business is therefore subject to economic regulation which is reviewed under the rational relationship test.  [Citation.]”  (Id., at pp. 127–128, 201 Cal.Rptr. 70.)   The valid exercise of a city's power to regulate the health, morals and welfare of the community requires that the means used bears a rational relationship to the goals sought to be achieved.  (Brix v. City of San Rafael (1979) 92 Cal.App.3d 47, 54, 154 Cal.Rptr. 647.)

Respondent is again correct to note that dispersal or deconcentration of adult businesses is readily acknowledged as rationally related to a legitimate goal of preventing blight and deterioration of neighborhoods (see fn., 1 ante;  Young v. American Mini Theatres (1976) 427 U.S. 50, 71–72, 96 S.Ct. 2440, 2452–53, 49 L.Ed.2d 310;  Strand Property Corp. v. Municipal Court, supra, 148 Cal.App.3d 882, 886–887, 200 Cal.Rptr. 47);  however, this does not mean that regulation which has reached the point of total prohibition will necessarily survive challenge.

 “[I]t is generally held that a municipality's power to regulate lawful businesses may not be used to prohibit them entirely․”  (City of Escondido v. Desert Outdoor Advertising, Inc. (1973) 8 Cal.3d 785, 790, 106 Cal.Rptr. 172, 505 P.2d 1012, cert. den., 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62, disapproved on other grounds in San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 216, 118 Cal.Rptr. 146, 529 P.2d 570.)  “However laudable its purpose, the exercise of police power may not extend to total prohibition of activity not otherwise unlawful.   [Citations.]”  (People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403, 406, 157 Cal.Rptr. 815.)   The test of whether a restriction bears a rational relationship to a legitimate goal is more difficult to satisfy when the restriction is total.   Prohibition will more readily be seen as arbitrary or unreasonable.  (See, e.g., San Diego T. Assn. v. East San Diego (1921) 186 Cal. 252, 254, 200 P. 393;  see also Parker v. Colburn (1925) 196 Cal. 169, 176–178, 236 P. 921;  Varney & Green v. Williams (1909) 155 Cal. 318, 320–321, 100 P. 867 overruled on other grounds in Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 860–861, 865, fn. 12, 164 Cal.Rptr. 510, 610 P.2d 407.)

Town of Los Altos Hills v. Adobe Creek Properties, Inc., supra, does not stand for an abandonment of those principles, as respondent's reliance suggests.   There, in upholding an ordinance which excluded commercial development of recreational areas, the effect of which was to eliminate virtually all commercial uses within the city, the court took careful note of the town's rural-residential character, small population (6,800) and size (81/212 sq. mi.), and close proximity to urban areas before concluding that the ordinance was not unreasonable or arbitrary.  (32 Cal.App.3d 488, 499, 493–496, 508–509, 108 Cal.Rptr. 271.)

The Los Altos Hills case illustrates the need in this case to develop a more complete record of the particular circumstances which might bear on the reasonableness of total exclusion, should such be found.   Any determination at this point would be based on incomplete information and so will not be undertaken.  (City of Whittier v. Walnut Properties, Inc., supra, 149 Cal.App.3d 633, 641–642, 197 Cal.Rptr. 127.)

The summary judgment was erroneously granted and the motion for new trial erroneously denied because there existed a triable issue of material fact.   Appellant will have the opportunity to resolve the question of whether the ordinance in practical effect constitutes a total prohibition of massage parlors within the city.   If he can establish total prohibition, the ultimate issue of constitutionality will remain.

For the benefit of the trial court, we caution that nothing in this opinion should be taken to suggest that appellant enjoys a personal right to conduct his particular business.   The issue, rather, is limited in scope to whether the ordinance in practical effect totally prohibits all massage parlors.   Accordingly, factors such as appellant's own business preference for location or personal inability to pay higher rents elsewhere in the city carry weight only to the extent that they tend to show that all massage parlor owners would similarly be prevented by those factors from operating within the city.   Also, appellant's evidence that legally permissible sites are unavailable solely due to marketplace factors such as high rents or reluctance of current landlords to allow use of their premises for a massage parlor, while significant enough to help raise a triable issue against a summary judgment motion, may pale in importance in the total circumstances shown at trial.   For example, the reviewing court in City of Vallejo v. Adult Books, supra, 167 Cal.App.3d 1169, 213 Cal.Rptr. 143, concluded upon review of a judgment after trial:  “We are mindful that appellant produced by expert testimony evidence of the considerable economic difficulty of locating ‘adult’ uses at many legally permissible sites within the City of Vallejo.   Such evidence, however, falls far short of establishing that appellant is foreclosed or unreasonably restricted by the ordinance from effectively operating within the city limits.   The issue is one of degree, and we are satisfied that the limitations based upon prospective relocation are not onerous.”  (Id., at p. 1180, 213 Cal.Rptr. 143, emphasis added.)   Finally, the availability of suitable property for sale, as well as for lease or rent, will be an important consideration in determining prohibitory effect.

The judgment is reversed;  the purported appeal from the order denying a new trial is dismissed.


1.   Section 1 of Ordinance No. 1849, New Series, explained the purpose of the enactment as follows:  “In the development and execution of this Article, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas.   Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood.   These special regulations [sic] are defined in this Article as adult entertainment activities.   The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area.”

2.   Flanders had testified as an expert witness in other such actions.

3.   Counsel for the city orally objected at the hearing on the motion for summary judgment that the opposing declarations of Weaver and appellant were “full of hearsay” and did not reflect personal knowledge.   (See Code Civ.Proc., § 437c, subd. (d) [opposing declarations shall be made on personal knowledge and set forth admissible evidence].)  However, counsel never elaborated on his objection or secured a ruling from the trial court.  (See id., § 473c, subd. (c) [“the court shall consider all of the evidence ․ except that to which objections have been made and sustained by the court”].)  The city has offered no argument on appeal as to the competency of the evidence.Counsel for the city also objected to the hearsay content of the Flanders declaration submitted upon the motion for new trial.   Whether the absence of a ruling on that objection operated again as a waiver of the hearsay issue, as it would have upon the motion for summary judgment (compare Code Civ.Proc., § 437c, subd. (d), with id., §§ 657–659), is not important.   We are satisfied that a triable issue of fact was raised with or without the hearsay portions of Flanders' declaration.

4.   We intimate no conclusion on the merits of the prohibition issue.   It is necessary, however, to indulge in the assumption that a total prohibition might be found in order to provide guidance in the event of such a finding and to explain the need for further trial court proceedings in that event.

SMITH, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.

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