FYBEL, J.
On three different occasions between July 2006 and January 2008, Orange County Sheriff's deputies entered the Lake Forest BodyCentre (the BodyCentre), a massage establishment in Lake Forest, searched the premises, and prevented employees and customers from leaving. Based on those searches, the former owner of the BodyCentre, as well as several massage therapists employed by the BodyCentre, sued the City of Lake Forest (the City), the County of Orange (the County), and J. Balicki, Sergeant M. Colver, Deputy C. Lang, Deputy Kwaschnefski, Deputy J. Sandoval, Investigator J. Gentile, Sergeant Parrish, Investigator Moodie, Investigator Zurborg, Investigator Catalano, Investigator DeGeorgio, Deputy Borrego, Deputy Navarro, and Investigator Benson—the sheriff's deputies who participated in the searches (the Officers)—for violations of 42 United States Code section 1983 (section 1983) and Civil Code section 52.1.
We affirm. The claims against the City and the County under section 1983 fail because no policy, custom, or practice resulting in a violation of constitutional rights was alleged. The section 1983 claims against the Officers fail because the Officers were protected from suit by qualified immunity. All claims for violation of Civil Code section 52.1 were barred for failure to allege compliance with the Government Claims Act (Gov. Code, § 810 et seq.).
Charlie Abujudeh operated the BodyCentre, a massage establishment located in Lake Forest, from 2000 to 2007. Abujudeh was licensed to operate the BodyCentre by the City.
On July 14, 2006, following a lengthy undercover operation, Orange County Sheriff's deputies entered the BodyCentre without a warrant. The deputies suspended ongoing massages and detained the customers for interviews; compelled the BodyCentre to refund the money paid by the customers whose massages were interrupted; locked the doors of the BodyCentre, preventing anyone from leaving the premises; prevented additional customers from entering the BodyCentre; and held those prospective customers for interviews.
On April 17, 2007, the City commenced an administrative proceeding to revoke Abujudeh's massage establishment license. Following a hearing, the administrative hearing officer revoked Abujudeh's license. Abujudeh filed a petition for a writ of administrative mandate, which the trial court denied. In an unpublished opinion, this court affirmed the trial court's judgment. (Abujudeh v. City of Lake Forest (May 25, 2010, G041604).)
In June 2007, Abujudeh sold the BodyCentre to Julie Ho, who acquired a license from the City to operate the business as a massage establishment.
On August 24, 2007, the City advised the BodyCentre's landlord, El Toro Plaza, L.P. (El Toro), that the City was considering legal action against El Toro and the BodyCentre under the "Red Light Abatement Act," and suggested El Toro investigate whether the evidence uncovered during the investigation of the BodyCentre constituted a violation of the BodyCentre's lease terms.
On October 11, 2007, sheriff's deputies again entered the BodyCentre without a warrant, locked the doors of the premises for several hours, prevented massage technicians and customers from entering or leaving the premises, and prevented the workers from communicating with legal counsel.
In January 2008, the City initiated administrative proceedings to revoke Ho's massage establishment license. Following a hearing, Ho's license was revoked. Ho filed a petition for a writ of administrative mandate, which was denied. Ho appealed from the trial court's judgment, but voluntarily dismissed her appeal.
Sheriff's deputies entered the BodyCentre without a warrant for a third time on January 31, 2008. They interrupted ongoing massages and detained those customers for interviews; compelled the BodyCentre to refund the fees paid by the customers whose massages were interrupted; and locked the BodyCentre's doors, preventing new customers from entering and preventing existing customers and workers from leaving the premises.
On February 22, 2008, El Toro served Ho, Abujudeh, and the BodyCentre with a three-day notice to quit, pursuant to Code of Civil Procedure section 1161, subdivision 4. The notice specified that Ho, Abujudeh, and the BodyCentre had used the premises for an unlawful purpose; had committed or permitted the commission of a nuisance on the premises; and had permitted the violation of the Red Light Abatement Act. El Toro did not provide any opportunity to cure. In March 2008, El Toro filed an unlawful detainer action. After a bench trial, the court entered judgment in favor of Abujudeh and Ho, and against El Toro.
In November 2007, the City filed a complaint against the BodyCentre, Ho, Abujudeh, and El Toro, alleging the BodyCentre constituted a public nuisance, and seeking a temporary restraining order, and preliminary and permanent injunctions. The resolution of that case is not before us in this appeal.
Ho filed a cross-complaint against the City, alleging violations of the United States and California Constitutions. A second amended cross-complaint was filed. The City filed a motion for judgment on the pleadings. The trial court granted the City's motion, and judgment was entered on February 10, 2009. Ho's notice of appeal was filed June 22, 2009. Ho voluntarily dismissed her appeal.
Abujudeh filed a cross-complaint against the City and the County for violations of section 1983, violation of Civil Code section 52.1, interference with contract, and interference with prospective economic relations. The County demurred to Abujudeh's cross-complaint. The trial court sustained the demurrer with leave to amend the claims for violation of federal and state civil rights, but without leave to amend the interference claims.
The City filed a motion for judgment on the pleadings against Abujudeh's first amended cross-complaint. The trial court granted the motion. Abujudeh filed a notice of appeal before the judgment was entered. During the pendency of the appeal, judgment was entered. Pursuant to California Rules of Court, rule 8.104(d)(2), we exercise our discretion to treat the notice of appeal as having been filed immediately after entry of the judgment.
The Officers' demurrer to Abujudeh's first amended cross-complaint was sustained with leave to amend. Abujudeh then filed a second amended cross-complaint, again asserting claims for violations of section 1983 and Civil Code section 52.1; the second amended cross-complaint named only the Officers as cross-defendants. The Officers demurred to the second amended cross-complaint. The demurrer was sustained without leave to amend. A judgment of dismissal was filed on April 17, 2009. Abujudeh timely appealed.
In October 2008, Christine Vo, Stephanie Mitchell, Huong Thi Begley, Kim Hien Pham, and Lianne Nguyen (collectively, the Workers) filed a complaint against the City and the County for violations of section 1983, violations of Civil Code section 52.1, interference with contract, and interference with prospective economic relations.
We review de novo an order sustaining a demurrer without leave to amend. (Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 515.) "`"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Similarly, we review de novo the trial court's order granting a motion for judgment on the pleadings. "We independently review a judgment on the pleadings, and review the judgment, not the court's rationale. [Citation.] `"A defendant is entitled to judgment on the pleadings if the plaintiff's complaint does not state a cause of action. In considering whether a defendant is entitled to judgment on the pleadings, we look only to the face of the pleading under attack . . . . All facts alleged in the complaint are admitted for purposes of the motion, and the court determines whether those facts constitute a cause of action. The court also may consider matters subject to judicial notice."'" (Harris v. Grimes (2002) 104 Cal.App.4th 180, 185.)
When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer, the same rules apply. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691-692.) Neither the Workers nor Abujudeh argues the trial court should have granted leave to amend the second amended complaint or the second amended cross-complaint, nor do they argue there is a reasonable possibility the defects in their pleadings could have been cured by amendment.
To state a claim under section 1983, a plaintiff must allege (1) a violation of a right secured by the United States Constitution or federal law; and (2) the violation was committed by a person acting under color of state law. (West v. Atkins (1988) 487 U.S. 42, 48; Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062.)
A public entity may be liable for a violation of section 1983 only if the violation of the plaintiff's constitutional rights resulted from the public entity's policy, custom, or practice. "Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 `person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690-691, fn. omitted.)
In relevant part, the Workers' second amended complaint reads as follows:
The substance of Abujudeh's first amended cross-complaint is the same.
To establish the existence of a policy, a plaintiff must identify a rule or regulation promulgated by a public entity's lawmaking body, or a decision made by an official of the entity who has final authority to establish the entity's policy regarding the challenged action. (Thompson v. City of Los Angeles (9th Cir. 1989) 885 F.2d 1439, 1443.) To establish the existence of a custom, a plaintiff must show a widespread practice within the public entity that is so permanent and well settled that it has developed the force of law. (Id. at pp. 1443-1444.) Where a plaintiff alleges inadequate training to meet the policy, custom, or practice requirement, he or she must allege the inadequacy of the overall training program, not merely the inadequacy of the training provided to the specific officers involved. (Canton v. Harris (1989) 489 U.S. 378, 392.) The allegations of the Workers and Abujudeh, as set forth ante, fall short of what is required. The trial court did not err in sustaining the demurrers of the City and the County to the claims for violation of section 1983, because the Workers and Abujudeh failed to allege a policy, custom, or practice by the City or the County that caused a violation of their constitutional rights.
The Workers and Abujudeh argue the trial court erred by determining at the demurrer stage that the Officers were protected from suit by qualified immunity, citing Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1562-1563, in which the court held, "[a]s a practical matter, such qualified immunity will seldom provide grounds for demurrer; a complaint alleging violation of § 1983 is not likely to reveal on its face the presence of good faith on the part of the offending officials."
The United States Supreme Court has stated, however, that the issue of qualified immunity should be determined as early as possible in a case. (Pearson v. Callahan (2009) 555 U.S. 223, ___ [129 S.Ct. 808, 815].)
As sheriff's deputies, the Officers have qualified immunity from liability under section 1983 "unless the officer[s] ha[ve] violated a `clearly established' constitutional right." (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840 (Venegas), citing Saucier v. Katz (2001) 533 U.S. 194, 201 (Saucier).) In Venegas, the California Supreme Court explained that under Saucier, "`[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" (Venegas, supra, 32 Cal.4th at p. 840.) "Saucier set forth the following framework for ruling on a claim of qualified immunity: First, accepting the plaintiff's allegations as true, was a constitutional right violated? If so, was the right so well established that it would be clear to a reasonable officer that his conduct was unlawful in the circumstances?" (Ibid.)
Abujudeh and the Workers allege the Officers violated their right under the Fourth and Fourteenth Amendments to the United States Constitution to be free from unreasonable searches and seizures.
An exception to the normal warrant requirement exists when the business is in a closely regulated industry. "Because the owner or operator of commercial premises in a `closely regulated' industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, [citation], have lessened application in this context. Rather, we conclude that, as in other situations of `special need,' [citation], where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. [¶] This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a `substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made. [Citations.] [¶] Second, the warrantless inspections must be `necessary to further [the] regulatory scheme.' [Citation.] . . . [¶] Finally, `the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.' [Citation.] In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. [Citations.] To perform this first function, the statute must be `sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.' [Citation.] In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be `carefully limited in time, place, and scope.' [Citation.]" (New York v. Burger (1987) 482 U.S. 691, 702-703.)
All three prongs of the New York v. Burger exception apply here. First, the City has a strong interest in monitoring massage establishments within its city limits through, among other regulations, the conduct of warrantless searches. (Kim v. Dolch (1985) 173 Cal.App.3d 736, 744 [government has strong interest in regulating massage parlors to control prostitution, minimize dangers posed by inadequately trained masseuses, and regulate health and safety concerns].)
Second, warrantless inspections of massage establishments are necessary to further the regulatory scheme, as evidence of prostitution or other regulatory violations occurring during a massage could easily be lost if an inspection were announced. (Kim v. Dolch, supra, 173 Cal.App.3d at p. 745 ["effective enforcement of the massage parlor ordinance in the instant case is contingent upon `unannounced, even frequent, inspections' and, correspondingly, a warrant requirement would frustrate the purposes of the ordinance. This is because important requirements of the ordinance could easily be concealed or corrected in a short time"].)
As far as the third prong of the New York v. Burger analysis, "the massage parlor industry is pervasively regulated," such "`that the owner of such a facility cannot help but be aware that he "will be subject to effective inspection."' [Citation.]" (Kim v. Dolch, supra, 173 Cal.App.3d at pp. 743, 744.) The relevant provision of the Lake Forest Municipal Code provides: "Any and all investigating officials of the City shall have the right to enter massage establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing, or health regulations, and to ascertain whether there is compliance with the provisions of this chapter." (Lake Forest Mun. Code, ch. 5.07, art. II, § 5.07.240.) We conclude this regulation sufficiently limits the scope of inspections, and the discretion of the officers performing them. The Officers were acting as investigating officials of the City. The manner in which the inspections were conducted was reasonable. There was no violation of a constitutional right.
The additional violations of which Abujudeh and the Workers complained are irrelevant. The pleadings allege the Officers failed to give Miranda v. Arizona (1966) 384 U.S. 436 warnings upon entering the BodyCentre. The pleadings do not allege that anyone was placed under arrest, or that the Workers and Abujudeh were interrogated or even interviewed, during the investigations. Abujudeh and the Workers do not argue Miranda warnings are required under these circumstances.
Abujudeh and the Workers did not suffer a constitutional violation when the customers were prohibited from leaving the BodyCentre, had their massages interrupted, or were detained when trying to enter the BodyCentre; we need not consider whether the customers' constitutional rights were violated.
The pleadings allege the Officers forced the BodyCentre and/or the Workers to refund fees paid by customers for massages that were interrupted. Abujudeh and the Workers provide no authority for the proposition that requiring fees not fully earned to be repaid constitutes a constitutional violation.
The Workers alleged the Officers prevented them from leaving the BodyCentre. The Workers did not allege that conduct was not permissible as a means of performing the inspections authorized by Lake Forest Municipal Code, chapter 5.07, article II, section 5.07.240. A temporary detention based on reasonable suspicion is not per se unconstitutional under the Fourth Amendment if it is sufficiently brief and minimally intrusive. (United States v. Washington (9th Cir. 2004) 387 F.3d 1060, 1069.) Although the three inspections involved locking the doors of the BodyCentre for two to four hours, the Workers did not allege that time period was unreasonable under the circumstances.
The Workers' second amended complaint also contains an allegation that the Workers were denied their right to counsel during the October 2007 inspection, when the Officers prevented "legal counsel" from communicating with a plaintiff being detained at the BodyCentre. Only Christine Vo claimed to have been present at the BodyCentre during the October 2007 inspection; therefore, only she could assert that allegation. But Vo did not allege she was in custody, or was questioned or interrogated by the Officers, and therefore could not claim a violation of section 1983 based on the allegations in the second amended complaint. (Rothgery v. Gillespie County (2008) 554 U.S. 191, 198 [Sixth Amendment right to counsel does not attach until criminal prosecution commences]; U.S. v. Hines (9th Cir. 1992) 963 F.2d 255, 256 [Fifth Amendment right to counsel does not vest until a defendant is taken into custody].) We do note that at oral argument counsel for the Workers stated he was called to the BodyCentre by his clients on the date of at least one of the inspections; this statement appears to contradict the allegation that the Workers were prohibited from communicating with counsel.
Even if Abujudeh and the Workers had sufficiently alleged the Officers violated a clearly established constitutional right by conducting warrantless searches of the BodyCentre, we would nevertheless conclude they had failed to allege it was clear to the Officers that their conduct was illegal. Because a massage establishment is in a closely regulated industry for which warrantless inspections may be reasonable, and because the Lake Forest Municipal Code permits inspections of massage establishments, and because undercover investigations had determined that significant violations of the municipal code and the Penal Code were occurring at the BodyCentre, it would not be clear to a reasonable officer that his or her conduct was unlawful under the circumstances.
The Officers' demurrers were properly sustained, because their actions were covered by qualified immunity.
Only Vo was present at the July 2006 and October 2007 inspections of the BodyCentre. The other named plaintiffs have no claim for violation of rights under section 1983 based on any actions by the Officers during those inspections.
A claim for a violation of section 1983 occurring in California is subject to the two-year limitations period set forth in Code of Civil Procedure section 335.1. (Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, 927.) The Workers' complaint was filed on October 10, 2008. The Workers' claims could not be based on any governmental actions undertaken before October 10, 2006. The inspection occurring in July 2006 cannot be part of Vo's claims.
The Workers argue their section 1983 claims were based on the totality of numerous and continuous actions perpetrated by the governmental agencies and their employees. The Workers cite, in support of their argument, Grassilli v. Barr (2006) 142 Cal.App.4th 1260), in which the plaintiff brought a successful claim under section 1983 based on police actions against him, which occurred during a five and one-half year period. We do not find Grassilli on point for two reasons. First, the issue of the applicable statute of limitations was not addressed in Grassilli. An opinion is not authority for a proposition it does not consider. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Second, in Grassilli, two separate civil rights actions were filed by the plaintiff, covering police actions occurring during different time periods. (Grassilli v. Barr, supra, 142 Cal.App.4th at pp. 1271, 1274.) Therefore, it appears that all claims asserted by the plaintiff in Grassilli were timely.
To summarize, none of the Workers can state a claim for violation of section 1983 based on the July 2006 inspection, and only Vo can state a claim based on the October 2007 inspection.
Abujudeh's second amended cross-complaint alleged, in relevant part, as follows: "[I]n June 2007, [Abujudeh] sold the Establishment to non-party Julie Ho, who in that same month acquired her own massage establishment license from cross-defendants. As a result, Julie Ho lawfully was entitled to carry on the business of the Establishment." Based on the allegations of the second amended cross-complaint, Abujudeh's claim for a violation of section 1983 could not be based on the inspections of the BodyCentre conducted on October 11, 2007 or January 31, 2008, as Abujudeh had no interest in the BodyCentre on those dates, and did not allege he was present at the BodyCentre on those dates.
Abujudeh argues that because the City alleged in its complaint that Abujudeh's transfer of ownership to Ho was fraudulent, he might still own the business and therefore he has a claim under section 1983. The problem with this argument is that we are considering on appeal whether the trial court properly sustained demurrers and granted motions for judgment on the pleadings with respect to Abujudeh's cross-complaint, not the City's complaint. The cross-complaint affirmatively alleges that Abujudeh sold the business to Ho in June 2007, and that Abujudeh denied the City's contentions that he still had an interest in the business. Abujudeh did not ask the trial court or this court to judicially notice the contents of the City's complaint; even if he had, the court could only take judicial notice of indisputably true matters, which would not include a statement of the City's belief regarding the ownership status of the BodyCentre. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) Even if we could properly consider the allegations in the City's complaint now, they would only apply against the City; neither the County nor the Officers made any allegations regarding Abujudeh's continuing ownership or other interest in the BodyCentre.
Abujudeh and the Workers filed claims against the City, the County, and the Officers for violations of Civil Code section 52.1.
All claims against public entities for damages under Civil Code section 52.1 are subject to the Government Claims Act. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 765; see Gov. Code, § 905 [all claims against local public entities must be presented in accordance with the Government Claims Act, with specified exceptions not relevant here].) Failure to present a claim to the appropriate public entity bars a later-filed lawsuit. (Gov. Code, § 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.)
The Workers' second amended complaint and Abujudeh's second amended cross-complaint alleged the Workers and Abujudeh "filed a tort claim with the City and with the County." Neither the Workers nor Abujudeh alleged timely compliance with the Government Claims Act, which is a requirement before a lawsuit against a governmental entity may be initiated. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1237.) At oral argument, Abujudeh's appellate counsel conceded a timely claim had not been presented.
The trial court did not err by sustaining the demurrers to the Workers' second amended complaint and Abujudeh's second amended cross-complaint. (See Milton v. Lawton (E.D.Cal., Sept. 27, 2005, CV F 04 5556 AWI WMW P) 2005 U.S.Dist. Lexis 28938, *8-*9 [cause of action properly dismissed where the plaintiff failed to show timely presentation of claim, and failed to respond to the defendants' argument].)
The judgments are affirmed. Respondents to recover costs on appeal.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
