Filed 9/10/20 The Folb Partnership v. City of Los Angeles CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE FOLB PARTNERSHIP et al.,

 Plaintiffs and Appellants,

v.

THE CITY OF LOS ANGELES,

 Defendant and Respondent.

 B301786

 (Los Angeles County

 Super. Ct. No. BC587659)

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David Sotelo, Judge. Reversed with 

directions. 

Loeb & Loeb and William M. Brody; Greenberg Glusker

Fields Claman & Machtinger and Douglas E. Mirell for Plaintiff

and Appellant Paramount Contractors & Developers, Inc.

Michael N. Feuer, Los Angeles City Attorney, Terry 

Kaufmann Macias, Assistant City Attorney, and Kenneth T. Fong 

and Yongdan Li, Deputy City Attorneys for Defendant and 

Respondent.
2

INTRODUCTION

Paramount Contractors & Developers, Inc. sued the City of 

Los Angeles over the City’s denial of Paramount’s application for 

permits to display signs on two office buildings in Hollywood. 

Paramount appeals from the judgment entered after the trial 

court sustained the City’s demurrer without leave to amend. 

Paramount contends the court abused its discretion in denying

Paramount leave to amend to allege that the City wrongly denied 

Paramount permits for “wall signs” with “on-site” and political 

messages and that the City wrongly refused to process any of 

Paramount’s sign permit applications. We agree with Paramount 

and reverse the trial court’s denial of leave to amend. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Paramount and the Folb Partnership Sue the City

The Los Angeles Municipal Code defines several kinds of 

signs that are relevant here. A “wall sign” is “[a]ny sign attached 

to, painted on or erected against the wall of a building or 

structure, with the exposed face of the sign in a plane 

approximately parallel to the plane of the wall.” (L.A. Mun. 

Code, § 14.4.2.) A “supergraphic sign” is, generally speaking, a 

large sign that is projected onto or hung from a building (ibid.; 

see World Wide Rush, LLC v. City of Los Angeles (9th Cir. 2010)

606 F.3d 676, 682), “and which does not comply with,” among 

other provisions, those governing wall signs (L.A. Mun. Code, 

§§ 14.4.2, 14.4.10). An “off-site sign” is one that advertises a 

business conducted “elsewhere than on the premises where the 

sign is located.” (L.A. Mun. Code, § 14.4.2.) An “on-site sign” is a 
3

“sign that is other than an off-site sign.” (Ibid.) A “temporary 

sign” is “[a]ny sign that is to be maintained for a limited 

duration, not to exceed 30 days . . . .” (Ibid.) 

In July 2015 Paramount and the Folb Partnership filed a 

complaint in Los Angeles Superior Court “seek[ing] redress for 

the City’s improper denial of [their] attempts to obtain permits 

for various types of signage on their buildings” and “challeng[ing] 

aspects of the City’s signage regulations” based on alleged 

constitutional violations. Paramount and Folb alleged that in 

2015 they “sought new permits to erect various types of signs on” 

the two Hollywood buildings operated by Paramount and a third 

building owned by Folb. Paramount and Folb alleged they 

“sought these permits so that they could display messages for 

themselves, for political campaigns, and for third parties.” More 

specifically, Paramount alleged it applied for permits to erect 

“[t]emporary signs to display ‘off-site’ messages for a 30-day 

period,” “supergraphics signs to display ‘off-site’ messages,” 

“[s]upergraphics signs to display political messages for up to a 

30-day period,” and “[w]all signs to display ‘off-site’ messages.” 

Paramount and Folb alleged that, although their applications 

“complied with all necessary requirements,” the City “refused to 

process or approve any of [their] applications and, in fact, failed 

to even fully review the applications.”

Paramount and Folb asserted two causes of action based on 

these allegations. In the first, Paramount and Folb alleged the 

City’s sign regulations violated their free speech rights under the 

United States and California constitutions. In the second, 

Paramount alleged the City violated its sign regulations by 

denying Paramount’s recent permit applications “[w]ithout 

performing a proper review” and by not issuing permits to 
4

Paramount “for two types of signage” in particular: supergraphic 

signs that met the requirements for “an exception to the citywide 

partial ‘ban’ on supergraphics” and “temporary signs to display 

off-site messages.” 

B. The City Removes the Case to Federal Court, Which 

Decides Part of the Case in the City’s Favor and

Remands the Rest 

The City removed the case to federal court and moved to 

dismiss the complaint under rule 12(b)(6) of the Federal Rules of 

Civil Procedure. The district court granted the motion to dismiss 

Paramount’s claims without leave to amend on the ground that, 

under the doctrine of res judicata, prior litigation by Paramount 

against the City over applications for permits to display signs on 

the two Hollywood buildings barred Paramount’s claims in this 

case. The court also granted the City’s motion to dismiss Folb’s 

claim with leave to amend. After Folb filed an amended 

complaint, the City moved to dismiss it, and the court granted 

the motion, dismissing the amended complaint without leave to 

amend. Paramount and Folb appealed, though Folb later 

withdrew its appeal.

1

In the Ninth Circuit Paramount abandoned its 

constitutional challenge to the City’s regulations and focused on 

its “claim that the City wrongfully denied its 2015 permit 

applications.” The Ninth Circuit affirmed the district court’s 

dismissal of “Paramount’s claim concerning supergraphics,” but 

held “the district court erred in determining that res judicata 

barred Paramount’s claim concerning wall signs” because its 

prior litigation with the City “did not involve any dispute over 

1 Thus ending Folb’s participation in this case.
5

wall signs.” The Ninth Circuit therefore reversed “the district 

court’s dismissal of Paramount’s claim concerning wall signs” and 

remanded the case to the district court. The district court,

declining to exercise supplemental jurisdiction over a matter no 

longer involving federal constitutional claims, remanded the 

action to state court. 

C. The Superior Court Sustains the City’s Demurrer 

Without Leave To Amend

Back in state court, the City filed a demurrer to what 

remained of Paramount’s complaint. The City argued “[t]he 

Ninth Circuit remanded only one claim” (emphasis omitted)—

namely, that the City “failed to properly apply its local signage 

regulations when it denied Paramount’s permit applications for 

wall signs displaying off-site messages”—which failed as a matter 

of law because the City’s sign regulations for the Hollywood area, 

the Amended Hollywood Signage Supplemental Use District (the 

Amended Hollywood SUD), prohibited “off-site wall signs.” 

In opposing the demurrer Paramount argued, among other 

things, that the applicable regulations did not categorically ban 

“off-site wall signs” and that, in any event, its “claims [were] not 

limited to off-site wall signs,” but included allegations Paramount 

was entitled to permits for wall signs to display “on-site” and 

“political” messages, which it was unable to obtain because the 

City wrongfully refused to review or process any application by 

Paramount for permits. Paramount asked for leave to amend, in 

the event the court sustained the demurrer, to more clearly allege 

that its second cause of action was not limited to asserting the 

City wrongfully denied permits for “off-site wall signs” and that 

Paramount was also stating a cause of action based on the City’s 
6

wrongful refusal to review or process any application by 

Paramount for sign permits.

The trial court sustained the City’s demurrer without leave 

to amend. The court observed that the “[Amended] Hollywood 

SUD ordinance specifically prohibits off-site wall signs, including 

temporary signs,” and concluded that the exceptions to this 

provision cited by Paramount did not apply. The court further 

ruled: “Paramount’s Claim is Limited to Temporary Off-Site 

Wall Signs: Paramount argues that its claim is not limited to 

temporary off-site wall signs, but also includes other types of 

signs. The Court disagrees. The Ninth Circuit reversed the 

district court’s dismissal only as to off-site message wall signs. 

The only wall signs remaining in Paramount’s complaint are 

temporary off-site wall signs.” The court entered judgment in 

favor of the City, and Paramount timely appealed. 

DISCUSSION

A. Standard of Review

“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. [Citation.] ‘“[I]f 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.”’ . . . Plaintiff has the 

burden to show there is a reasonable possibility the complaint’s 

defects can be cured by amendment.” (Adams v. Bank of 

America, N.A. (2020) 51 Cal.App.5th 666, 670; see Arista v. 

County of Riverside (2018) 29 Cal.App.5th 1051, 1066 [“‘“Where 

the complaint is defective, ‘[i]n the furtherance of justice great 

liberality should be exercised in permitting a plaintiff to amend 
7

his complaint, and it ordinarily constitutes an abuse of discretion 

to sustain a demurrer without leave to amend if there is a 

reasonable possibility that the defect can be cured by 

amendment.’”’”].) 

B. The Trial Court Abused Its Discretion in Denying 

Paramount Leave To Amend

Paramount contends the trial court abused its discretion in 

denying leave to amend to allege that the City wrongfully denied 

applications by Paramount for permits to display wall signs with 

“on-site” and political messages, which Paramount contends the 

City’s regulations allow,2 and that the City wrongfully refused to 

process or review applications by Paramount for any type of sign. 

We agree the trial court should have granted Paramount leave to 

amend its complaint. 

It appears the trial court denied Paramount leave to amend 

because it believed the Ninth Circuit reversed “the district court’s 

dismissal only as to off-site message wall signs.” But that is not 

what the Ninth Circuit held.

3 The Ninth Circuit held that 

2 The City does not dispute that otherwise compliant wall 

signs with on-site or political messages are permissible under its 

regulations. 

3 “The meaning of a court order or judgment is a question of 

law within the ambit of the appellate court. [Citation.] ‘The true 

measure of an order . . . is not an isolated phrase appearing 

therein, but its effect when considered as a whole. [Citations.] In 

construing orders they must always be considered in their 

entirety, and the same rules of interpretation will apply in 

ascertaining the meaning of a court’s order as in ascertaining the 

meaning of any other writing. If the language of the order be in 

any degree uncertain, then reference may be had to the 
8

Paramount’s previous litigation with the City had not involved 

“any dispute over wall signs” and that therefore res judicata did 

not bar Paramount’s current claim “concerning wall signs.” If the 

Ninth Circuit’s ruling reversed the district court’s dismissal “only 

as to off-site message wall signs,” that’s because a claim involving 

“off-site message wall signs” was the only wall-sign claim the 

district court had dismissed. The Ninth Circuit’s decision does 

not preclude Paramount from adding allegations concerning

other kinds of wall signs.

The City argues the sham pleading doctrine precludes 

Paramount from amending its allegations as it proposed to do. 

Under that doctrine, “a plaintiff cannot avoid allegations that are 

determinative to a cause of action simply by filing an amended 

complaint which omits the problematic facts or pleads facts 

inconsistent with those alleged in the original complaint. The 

doctrine precludes a plaintiff from amending a complaint to omit 

harmful allegations, without explanation, from previous 

complaints to avoid attacks raised in demurrers.” (Tindell v. 

Murphy (2018) 22 Cal.App.5th 1239, 1248.)

The doctrine does not apply. Paramount is not attempting 

to overcome a successful attack in the City’s demurrer by 

omitting problematic facts or by pleading facts inconsistent with 

those previously alleged. Paramount proposes to allege 

additional facts to clarify that, in addition to applying for permits 

for wall signs with off-site messages, it applied for permits for 

walls signs with on-site and political messages and that the City 

refused to review its applications for permits for any kind of 

circumstances surrounding, and the court’s intention in the 

making of the same.’” (In re Ins. Installment Fee Cases (2012) 

211 Cal.App.4th 1395, 1429-1430.) 
9

sign—facts that do not contradict any allegations in the original 

complaint. (See JPMorgan Chase Bank, N.A. v. Ward (2019) 

33 Cal.App.5th 678, 690-691 [the sham pleading doctrine “‘is not 

intended to prevent . . . the correction of ambiguous facts’”]; 

Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 404, fn. 6 

[“the rule was not intended to preclude plaintiffs from providing 

additional and non-contradictory allegations”].) 

The City argues that any cause of action against it for 

wrongfully refusing permits to Paramount for wall signs with onsite or political messages is “not ripe” because Paramount did not 

actually submit applications for those types of wall signs, but 

only supposedly (quoting from Paramount’s opening brief)

“desired” to do so. The City argues Paramount therefore has not 

received a final denial of the applications it proposes to allege the 

City denied, and for that reason cannot state a cause of action 

based on such applications. Paramount has made clear, however,

that it “can and will allege” that “in 2015, at the same time it 

sought permits to display ‘off-site’ messages on wall signs, [it] 

also attempted to obtain permits for wall signs to display political 

and on-site messages” and that “[t]he City summarily refused to 

accept or process these permit applications.” (See Goonewardene 

v. ADP, LLC (2019) 6 Cal.5th 817, 832-833 [reviewing court must 

assume the properly pleaded facts in a proposed amended 

complaint are true]; Anderson v. City of San Jose (2019) 

42 Cal.App.5th 683, 698, fn. 5 [“our review on appeal from the 

judgment of dismissal after the sustaining of a demurrer 

necessarily encompasses consideration of any possible 

amendment that could cure the purported pleading defect”]; 

Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 

1103, 1118 [reviewing court must accept “the truth of the 
10

allegations in plaintiffs’ proposed amended complaints”].) The 

City’s (un)ripeness argument fails. 

The City also argues Paramount cannot assert a cause of 

action challenging the additional application denials because the 

statute of limitations has run and the proposed new allegations 

do not relate back to the filing of the original complaint.4 But the 

proposed new allegations do relate back. An amended complaint 

relates back to the original complaint, and thus avoids the bar of 

a statute of limitations, “if both complaints rest on the same 

general set of facts, involve the same injury, and refer to the 

same instrumentality.” (Esparza v. Safeway, Inc. (2019) 

36 Cal.App.5th 42, 60.) “In determining whether the amended 

complaint alleges facts that are sufficiently similar to those 

alleged in the original complaint, the critical inquiry is whether 

the defendant had adequate notice of the claim based on the 

original pleading.” (Pointe San Diego Residential Community, 

L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 

Cal.App.4th 265, 277.) Paramount’s proposed amendments 

concern the same kinds of signs (wall signs) for the same two 

buildings applied for and rejected at the same time by the same 

entity in the same manner with the same resulting injury as 

previously alleged. And the City does not suggest amendment 

would deprive it of adequate notice to prepare a defense on the 

merits. (See ibid. [“‘The policy behind statutes of limitations is to 

4 The City argues that under Government Code section 

65009, subdivision (c)(1), “[t]here is a 90-day statute of 

limitations to challenge the denial of a permit application” and 

that, “[e]ven if the 3-year statute of limitations in [Civil Code 

section] 338 applied, it too has long expired.” 
11

put defendants on notice of the need to defend against a claim in 

time to prepare a fair defense on the merits.’”].) 

Finally, in a single sentence, the City argues that allowing 

Paramount to amend would be “highly prejudicial” to the City 

because it “has litigated this case for years based on the current 

complaint.” This statement is too vague to establish prejudice. 

(See Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 

1154, 1163 [“absent a showing of prejudice to the adverse party, 

the rule of great liberality in allowing amendment of pleadings 

will prevail”].) 

DISPOSITION

The judgment is reversed. The trial court is directed to 

vacate its order sustaining the City’s demurrer without leave to 

amend and to enter a new order sustaining the demurrer with 

leave to amend. Paramount is to recover its costs on appeal. 

 

SEGAL, J.

We concur:

PERLUSS, P. J. DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.