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Joanne Stathoulis et al v. City of Downey et al

February 24, 2011

JOANNE STATHOULIS ET AL
v.
CITY OF DOWNEY ET AL



The opinion of the court was delivered by: Present: The Honorable Jacqueline H. Nguyen

CIVIL MINUTES - GENERAL

Alicia Mamer Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not present Not present

Proceedings: ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND REMANDING STATE LAW CAUSES OF ACTION TO LOS ANGELES COUNTY SUPERIOR COURT (In Chambers) Introduction

On January 26, 2011, Defendants City of Downey ("the City"), Gilbert A. Livas, and David Blumenthal (collectively "Defendants") filed a Motion to Dismiss ("Motion"; docket no. 7) Plaintiffs' Second Amended Complaint ("SAC"). On February 14, 2011, Plaintiffs filed an Opposition.*fn1 (Docket no.9.) On February 14, 2011, Defendants filed a Reply to Non-Opposition (docket no. 10), and on February 16, 2011, Defendants filed a Reply to Untimely Opposition (docket no.11). The Court has read and considered the briefs and deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the hearing set for February 28, 2011, is removed from the Court's calendar.

Among other arguments, Defendants move to dismiss Plaintiffs' federal and civil rights claims brought under section 1983 because (1) Plaintiffs' civil rights claims are unripe, and (2) Plaintiffs have not alleged any factual basis for a violation of their free speech and freedom of assembly rights. (Motion at 6--9.) For the reasons discussed herein, the Court GRANTS Defendants' Motion to Dismiss.

Factual Background

The following facts are taken from Plaintiffs' SAC and are deemed true for purposes of this motion.

Plaintiff Joanne Stathoulis ("Joanne") is the owner of Plaintiff Frisco's Downey Inc. ("Frisco's"), a corporation that owned a 1950's-themed restaurant, Frisco's Carhop Drive In, ("Restaurant") located in the City of Downey, California. In addition to serving food, the restaurant regularly hosted events featuring live music and entertainment ("weekly events"). These events took place in the parking area of the establishment as well as inside. Among the patrons of these events were car and motorcycle clubs. The Restaurant operated in this manner for approximately 25 years, until the fall of 2008. Plaintiffs allege that the weekly events provided a source of revenue that was necessary to keep the Restaurant in business.

Plaintiff Charles Gianfisco ("Gianfisco") is Joanne's son. By a written lease dated April 1, 2008, Joanne and her husband leased the Restaurant and its operation to Gianfisco and his brother George Stathoulis.*fn2 The initial term of the lease was through April 30, 2013.

Defendants Livas and Blumenthal are the assistant city manager and senior city planner, respectively, of Defendant City of Downey. In August 2008, the City contributed nine hundred thousand dollars to remodel property to house a Bob's Big Boy franchise ("Big Boy"). The City acted pursuant to an agreement with Defendant JKBBD, the franchisee of the Big Boy restaurant, and its president Defendant Jim Louder. Plaintiffs allege that the Big Boy restaurant, being a 1950's-themed diner as well, would operate in direct competition with their business.

Soon after the City contributed money to develop the competing restaurant, on August 29, 2008, Plaintiffs received a letter from a City attorney. The letter stated, "we have been advised that your business establishment . . . is hosting weekly events and activities without first procuring the required City approvals, permits and/or licenses . . . . You are requested to attend an informal office conference . . . in an attempt to resolve this matter prior to commencement of legal proceedings." Plaintiffs allege that this was the first challenge the City had made to their events, ...


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