Filed 1/19/22 Entertainment Lane v. City of Salinas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ENTERTAINMENT LANE, INC. et al.,

 Plaintiffs and Appellants,

v.

CITY OF SALINAS,

 Defendant and Respondent.

 G060375

 (Super. Ct. No. M131833)

 O P I N I O N

Appeal from a judgment of the Superior Court of Monterey County, Susan 

J. Matcham, Judge. Affirmed.

Thomas Vogele & Associates, Thomas A. Vogele, Brendan M. Loper; Jeff 

Lewis Law, Jeffrey Lewis and Sean Rotstan for Plaintiffs and Appellants.

Christopher A. Callihan, City Attorney, Michael Mutalipassi, Assistant City 

Attorney; Law Offices of Joel Franklin and Joel Franklin for Defendant and Respondent.

* * *
2

INTRODUCTION

Entertainment Lane, Inc. (ELI) and Anthony Lane own the Fox Theater in 

downtown Salinas and operate the theater as a venue for live entertainment and 

gatherings. In 2012, the City of Salinas (the City) sent Lane a notice that the theater was 

not in compliance with the City building code and endangered public safety because an 

inspection suggested the theater had roof trusses that were supported by an unreinforced 

masonry wall. The City also cited ELI and Lane for allowing religious assemblies to be 

held on the ground floor of the theater in violation of the City zoning code. ELI and Lane 

had expensive seismic retrofitting improvements made to the Fox Theater and ended a 

valuable lease with the church that used the theater for worship services.

ELI and Lane sued the City under 42 United States Code section 1983 

(section 1983) for violation of constitutional rights. They alleged the City’s 

representations and actions in connection with the Fox Theater’s compliance with seismic 

strengthening provisions of the building codes, enforcement of those codes, and 

prohibition of religious assemblies at the theater, constituted a deprivation of their 

substantive due process rights under the Fourteenth Amendment to the United States 

Constitution. The trial court granted the City’s motion for summary judgment.

We affirm. The standard for proving a substantive due process violation is 

high indeed: A substantive due process violation requires proof that the government 

engaged in “outrageous or egregious” conduct—“a true abuse of power.” (Galland v. 

City of Clovis (2001) 24 Cal.4th 1003, 1032 (Galland).) Government error, mistake, or 

negligence does not constitute a substantive due process violation. (Id. at pp. 1033, 

1034.) The evidence presented in connection with the summary judgment motion, 

viewed in a light most favorable to ELI and Lane, is not reasonably susceptible to the 

inference that the City acted outrageously or egregiously or abused its power. The City’s 

actions, viewed individually or in their totality, do not amount to a substantive due 

process violation as a matter of law. The City, though proven to be mistaken in some 
3

ways, engaged in conduct that was rationally related to its power and responsibility to 

protect public safety and prevent loss of life and damage from earthquakes.

FACTS

I. The City’s Seismic Strengthening Ordinance

Following the 1989 Loma Prieta earthquake, the City enacted Ordinance 

No. 2106, entitled the “Seismic Strengthening Provision for Unreinforced Masonry 

(URM) Buildings,” (the Seismic Strengthening Ordinance), which went into effect in 

October 1990. That ordinance’s stated purpose is “to promote public safety and welfare 

by reducing the risk of death or injury that may result from the effects of earthquakes on 

existing unreinforced masonry bearing wall buildings.” (Seismic Strengthening Ord., 

§ 9-5.1.) The Seismic Strengthening Ordinance applies “to all existing buildings having

at least one unreinforced masonry bearing wall.” (Seismic Strengthening Ord., § 9-5.2.) 

Section 9-5.5 of the Seismic Strengthening Ordinance requires that a 

building which lacks a seismic resisting system conforming to building code 

requirements be altered and repaired to meet those requirements and the provisions of the 

Seismic Strengthening Ordinance. (Seismic Strengthening Ord., § 9-5.5(a), (b).) Section 

9-5.11(c) states in relevant part: “The owner of each building within the scope of this 

Article shall, upon service of an order and within the time limits set forth in this Article, 

cause a structural analysis to be made of the building by an engineer or architect licensed 

by the State . . . and, if the building does not comply with earthquake standard specified 

in this Article, the owner shall cause it to be structurally altered to conform to such 

standards or shall cause the building to be demolished.” (Seismic Strengthening Ord., 

§ 9-5.11(c).)

Adjacent buildings are addressed in section 9-5.10(h). If an adjacent 

building has an exterior unreinforced masonry bearing wall that does not have a 

separation of at least five inches, then “supplemental vertical gravity load-carrying 
4

members shall be added to support the loads normally carried by the wall and such 

members shall not be attached to the wall.” (Seismic Strengthening Ord., § 9-5.10(h)(2).) 

II. Lane’s Purchase of the Fox Theater

Lane was one of two members of Gemini Theater LLC (Gemini) which, in 

May 2007, purchased the Fox Theater in downtown Salinas for $950,000. In September 

2006, before purchasing the theater, Lane met with his engineer (Michael Martin) and 

various City officials. The City officials told Lane that the theater had no earthquake, 

earthquake retrofit, or unreinforced masonry issues, the theater was not an unreinforced 

masonry building, and the theater was not on the City’s list of unreinforced masonry 

buildings. City officials also told Lane that, based on reviews and inspections made after 

the 1989 Loma Prieta earthquake, all earthquake issues for buildings in downtown 

Salinas had been reviewed and updated and all necessary earthquake repairs were known 

and identified. 

In 2007, Gemini applied for and received a conditional use permit (the 

CUP) for continued operation of the Fox Theater with the addition of live entertainment 

and on-site alcoholic beverage sales. The CUP excluded use of the theater for “assembly 

and similar uses described in Zoning Code Section 37-40.310(a)(2),” which provides that 

“[c]lubs, lodges, places of religious assembly, and similar assembly uses shall only be 

permitted above the ground floor of the buildings facing Main Street within the 

downtown core area.”

Lane spent between $648,000 and $700,000 making upgrades to the Fox 

Theater. The theater was operated successfully thereafter for a number of years. In July 

2012, ELI, which is owned solely by Lane, acquired the Fox Theater. 

III. The City’s Inspection of the Theater and 

Lane’s Response

In January 2012, City building officials Joseph DeSante and Dennis 

Richardson met with Lane at the Fox Theater. DeSante and Richardson told Lane that he
5

did not have permits for the upgrades made in 2008 and the theater looked to be an 

unreinforced masonry building. On January 31, 2012, Lane sent Richardson an e-mail 

message stating, “upon first inspection with Mike Stone (Salinas Building Dept.) and our 

Engineer Michael Martin it was established at that time back in 2007 that the wall was 

OK and no retrofitting was needed.” (Some capitalization omitted.) 

On the same date, Richardson responded to Lane with an e-mail message 

stating: “You were advised of our need to inspect for this issue during our meeting 

recently with the Mayor. After the inspection I shared with you what we [had] observed 

in the attic which was the main trusses running north and south appear to bear on the 

apparently unreinforced masonry wall to the south. . . . [¶] The [C]ity is required to 

address all unreinforced masonry by state law and we have advised you of this fact. 

There were no apparent roof to wall connections from a retrofit visible so we are looking 

in our files to see how or if this was addressed. We were only able to access a limited 

portion of this area and then only from a distance. Any information you have or 

additional investigation from your engineer will be welcomed. In many instances the 

roof to wall connection is very economical so no need yet to panic but this will need to be 

eventually resolved in some manner.”

Lane consulted with his engineer, Martin, who informed Lane that the Fox 

Theater was structurally sound and not an unreinforced masonry building. On February 

2, 2012, Lane sent Richardson an e-mail message stating: “It is important that you 

further and carefully consider your proposed ‘unsafe building posting’ on The Fox 

Theater before you proceed. Our research shows that you are incorrect on the facts that 

you intend to use to post the building as unsafe for seismic concerns.” In this e-mail, 

Lane informed Richardson that Martin had “traced the load path” and had concluded that 

“the subject ‘masonry wall’ is not considered load bearing nor is it our wall,” there were 

“no lateral or vertical loads being carried by any masonry wall,” and “[t]he [roof] trusses 

are not supported by any masonry wall belonging to The Fox Theater or anyone else.” 
6

Lane stated that the City had already “visited” the issue of seismic retrofitting “after the 

initial quake damage surveys when the City was involved in a purchase or encouraging a 

purchase of the building later in the 1990’s, at which time again the building was cleared 

of retrofit requirements.” 

In the February 2, 2012 e-mail, Lane requested a copy of the City’s 1989 

list of unreinforced masonry buildings. Lane warned the City that if it posted the Fox 

Theater as an unreinforced masonry building, “[t]he economic and business damages 

which would accrue . . . would have a potentially devastating effect on our business and 

could be viewed only as capricious or vindictive.”

In a declaration submitted in opposition to the City’s motion for summary 

judgment, Martin testified that in February or March of 2012 he performed a “rigorous 

on-site inspection” of the Fox Theater “specifically to examine whether the URM wall 

was supporting the existing roof trusses.” After completing the inspection, Martin 

concluded: (1) “The roof trusses were not being supported by the masonry wall, but were 

being supported by a wooden, heavy timber, braced frame bearing wall which ran almost 

parallel to the URM wall in question”; (2) although the tip of the roof truss and a concrete 

grade beam extended into the masonry wall, this was done to prevent rain and other 

elements from entering the space between the Fox Theater and an adjacent building, and 

not as a method of supporting the roof trusses; and (3) the unreinforced masonry wall was 

part of an adjacent building and did not, and was never intended to, carry the roof truss 

loads. 

Martin orally reported his opinion to Lane, DeSante, and Richardson. 

Martin did not prepare a written report and did not conduct a structural analysis of the 

Fox Theater as Lane had not asked him to do so. 

Richardson responded to Lane on February 2, 2012 with an e-mail stating: 

“[T]he facts in your statements below do not appear to be correct from all of the 

information we have regarding the wall. As I stated in the prior e-mail the trusses in your 
7

building, by all evidence we were able to observe with bad lighting and limited and 

incomplete access to the attic, bear on the unreinforced masonry wall. We could find no 

indication of a vertical column where we inspected the wall in the attic however if that is 

the case we would certainly welcome that information.” Richardson asked Lane to 

provide the City with his engineer’s report and a “signed and stamped copy” of his 

engineer’s opinion, along with “pictures, locations and facts regarding his inspection.” 

Richardson informed Lane that the City “will diligently follow up on any clarification 

report provided by your engineer.” 

On February 7, 2012, Lane sent Richardson an e-mail stating: “Before we 

. . . are forced to expend more dollars on professional engineering fees, it seems 

appropriate to ask you to search the City’s files and records for documents that 

seem to have been misplaced regarding building engineering.” Lane informed 

Richardson that the Fox Theater was not on the City’s 1989 list of unreinforced 

masonry buildings. Lane suggested that the request for an engineer’s report was 

“punitive” and that “[t]here seems to be an anti-business culture from certain City 

offices.”

Richardson responded on February 8, 2012 with an e-mail informing 

Lane that Richardson had left Martin a telephone message asking him to call to 

discuss his findings. “Hopefully speaking with him will shed some light on the 

conditions you have described which seem to run contrary to the photos we have 

provided you.” Richardson acknowledged the fact the Fox Theater was not on the 

City’s 1989 list of unreinforced masonry buildings, but added, “[w]hat is relevant 

is the best available information relative to the condition of your building at this 

point in time.” In the e-mail, Richardson stated: “In addition to requesting any 

engineering reports of opinions formed by your engineer (realizing there may be 

none), I offered to review any information you can send me as well as offered to 

meet him at the site or talk with him over the phone.”
8

IV. The City’s Notice and Order to Correct Fire and 

Building Structural, Accessibility, and Life Safety Issues

On March 16, 2012, Lane sent Richardson an e-mail informing him that 

Martin had agreed to meet with City officials. In that e-mail, Lane also stated that he 

would be out of town as of the following Monday to be with his father, who had been 

diagnosed with terminal cancer. 

Ten days later, on March 26, 2012, the City sent Lane, on behalf of Gemini, 

a “Notice and Order to Correct Fire and Building Structural, Accessibility, and Life 

Safety Issues” (the Notice). The Notice cited Gemini for noncompliance with the City 

building code in that “[t]he roof truss system and lateral force distributing elements are 

partially supported by unreinforced [masonry] (URM) construction along the south wall 

of the building” and “[f]ield inspection shows installation as provided is not braced to 

prevent rotation or translation of newly installed built-up members.” Gemini was ordered 

to “[s]tucturally evaluate to justify and obtain a building permit for work needed to 

retrofit or repair” the theater within three months of service of the Notice and to complete 

all necessary work and obtain “permit final inspection” within six months from the date 

of service of the Notice.

The Notice stated: “Currently the building is not included on the City’s list 

of [unreinforced masonry] buildings; however, it will be added. As a result, you are 

obligated to comply with the requirements imposed upon [unreinforced masonry] 

buildings by state law and to comply with all applicable local ordinances pertaining to 

[unreinforced masonry] buildings.” The Notice informed Gemini of its right to appeal 

the Notice. 

The deadlines imposed by the Notice were inconsistent with the Seismic 

Strengthening Ordinance, which sets forth the following deadlines for seismic retrofitting 

of buildings seating 100 or more persons: (1) One and one-half years to provide a 

structural analysis and plans for structural alteration or demolition; (2) two and one-half 
9

years to obtain necessary permits; (3) three and one-half years to begin construction (with 

possibility of 180-day extension); and (4) five years to complete construction (five and 

one half years if the owner had obtained an extension of time to begin construction). 

Under the Seismic Strengthening Ordinance, ELI and Lane could have 

sought to comply with the Notice by having a licensed engineer conduct a structural 

analysis of the Fox Theater to demonstrate the theater’s compliance with the ordinance. 

(Seismic Strengthening Ord., § 9-5.11(c).) Instead, in response to the Notice, Lane sent 

City officials a letter dated May 4, 2012 requesting an appeal of the unreinforced 

masonry/seismic retrofitting violations of the Notice. Lane expressed dismay that the 

Notice had been served on him only ten days after he had asked Richardson to “put 

everything on hold” because Lane needed to leave to be with his father. Lane believed

this was done “deliberately to hurt me.” Lane requested a “final meeting” with City 

officials, including the City attorney, City manager, and City mayor “to work this 

situation out.” 

The meeting was held on January 24, 2013. Lane and his “design team”

presented information about structural repairs required by the Notice and estimated the 

cost of the repairs required by the City to be between $700,000 and $1 million. Lane said 

he could not afford the repairs. City staff agreed to meet with Lane’s design engineer to 

discuss other repair options. 

On January 30, 2013, City building department staff met with Lane’s 

structural engineer, Wisam Nader. They evaluated several repair options that would 

satisfy the requirements of the Notice. In a letter dated March 6, 2013, DeSante wrote 

that “[s]ince that meeting, we have not received any communication from you or your 

consultants.” The March 6 letter set forth new and extended deadlines to complete the 

structural repairs, but the new deadlines (six months to complete repairs) were still far 

shorter than those imposed by Seismic Strengthening Ordinance. 
10

In a letter dated April 30, 2013, DeSante informed Lane that the 

compliance deadlines had been revised to comport with the Seismic Strengthening 

Ordinance. Under the new deadlines, structural alterations to the theater had to be 

completed by February 6, 2018. On May 1, 2013, the City recorded a certificate of 

unreinforced masonry construction status against the theater.

In June 2013, ELI applied for a building permit for the structural retrofit of 

the south side wall of the theater. The City approved the permit in March 2014; however,

ELI never “pulled” the permit and let it expire without completing the seismic retrofit by 

the February 6, 2018 deadline. 

V. Use of the Fox Theater for Worship Services

In July 2012, ELI had entered into a contract to lease space in the Fox 

Theater to Comunidad Christiana de Fe Church (the Church) at the rate of $5,500 per 

month. The Church leased the space for its worship services of one to three hours each 

week. Lane spent about $20,000 on renovations to accommodate the Church. In early 

2013, the City received complaints from downtown businesses that churchgoers were 

using up a lot of the parking spaces on Main Street. 

On February 5, 2013, the City issued ELI a Notice of Violation for 

violation of the CUP and Zoning Code section 37-40.310(a)(2) on the ground that “[u]se 

of the Theatre for Religious Assembly is not Permitted.” On February 27, the City issued 

ELI an Administrative Citation on the ground “Theatre used for religious assembly.” 

(Some capitalization omitted.) The citation required correction of the violation or other 

arrangement with the City by March 6, 2013 in order to avoid a $100 fine and further 

action, and notified ELI of its right to appeal the citation. ELI did not appeal the citation. 

Lane testified in his deposition that the Church was meeting both “upstairs”

(the mezzanine) and “downstairs” (the ground floor) and that in 2014 he learned the City 

Zoning Code permitted religious assemblies on the second floor of the Theater. In 
11

response to “persistent pressure from the City,” ELI agreed to terminate the lease with the 

Church. 

VI. Lane’s Public Records Request

In October 2014, Lane made a public records request to the City for copies 

of records dating from November 11, 2011 to October 15, 2014 pertaining to the Fox 

Theater. The City’s response included the City’s 1989 list of unreinforced masonry 

buildings and an inspection report for the Fox Theater dated June 24, 1976 prepared by 

the engineering firm of Ruth, Going and Curtis, Inc. (the Ruth Going Report). 

On the front of the Ruth Going Report in unidentified handwriting is a 

notation, “Not URM.”

1

According to the Ruth Going Report, the Fox Theater has no 

masonry walls. The masonry wall that is the subject of the Notice is part of an adjacent 

building called the Central Building.

Also produced by the City were print copies of e-mail communications 

from August 2012 and April 2013 regarding the lease with the Church and whether the 

use of the theater by the Church violated the prohibition on religious assemblies on the 

ground floor. In one e-mail, Alan Stumpf, the assistant director of the City’s Community 

and Economic Development Department, asked, “[i]f [the] Fox [Theater] is used only 

infrequently by a church group on Sunday mornings and the rest of the time is an 

entertainment venue, do we have some flexibility?” City Planning Manager Courtney 

Grossman responded: “A potential option: If the service occurs on the mezzanine level, 

it’s technically compliant.” Stumpf responded: “I would like to have a little more 

information about what’s going on. If the building is not a church, but is used by a 

church group for a service of one or two hours per week, that’s not the predominant use 

1

 At oral argument, counsel for ELI and Lane asserted the City had redacted this notation 

from the copy of Ruth Going report produced to ELI and Lane. ELI and Lane did not 

make that assertion in their appellate briefs, and the notation “Not URM” appears on the 

copy of the Ruth Going Report submitted in opposition to the City’s summary judgment 

motion. 
12

of the building. You could almost call it an extension of the building’s function as a live 

entertainment venue.” This exchange previously had not been made known to Lane. 

VII. Seismic Retrofitting of the Fox Theater and Martin’s 

Structural Analysis

On April 12, 2018, the City issued a Notice and Order to Repair or Abate 

(the Repair or Abate Order), which cited the failure to seismically retrofit the theater, 

unpermitted substandard construction, and lack of an adequate fire suppression system. 

The theater was deemed unsafe for occupancy and was shut down. ELI was given 60 

days in which to comply with the Repair or Abate Order. 

ELI and Lane filed a request for an expedited appeal to the City Council. 

The appeal challenged only the part of the Repair or Abate Order concerning the 

unreinforced masonry wall. ELI and Lane asserted that the unreinforced masonry wall 

was not part of the theater, the wall was not used to support the roof trusses, and the Ruth 

Going Report had determined the theater had no unreinforced masonry. After conducting 

a public hearing, the City Council unanimously denied the appeal. ELI and Lane later 

requested and received a 30-day extension of the compliance deadline.

In April 2018, ELI commenced construction of a steel wall between the 

unreinforced masonry wall and a wooden wall. During the course of construction, Martin 

was able to get a more in-depth look at the roof trusses and the unreinforced masonry 

wall. He discovered that of the five trusses, two were attached to a reinforced concrete 

wall and three were inserted into alcoves in the unreinforced masonry wall and did not 

touch the wall. Martin concluded, “[a]s a result, it was evident that the trusses were not 

supported in any manner by the URM wall.”

Martin wrote a letter to the City dated July 31, 2018 to report his findings. 

The letter states: “During the recent construction activity at The Fox Theater, I made 

numerous field inspections of the truss system’s new structural steel moment frame, 

which will be completed next week. In particular, I have examined the connection of the 
13

existing truss system to the existing wood bearing wall and I stand 100% behind my 

original conclusion that these trusses are not being supported by the masonry wall, which 

is an element of the adjacent building. Three out of the five trusses are not even touching 

the masonry wall. Therefore, I can conclude that the theater is presently safe for 

occupancy, without the aid of the new steel frame.” The letter bears Martin’s registered 

professional engineer’s seal. The City did not respond to the letter. 

Construction of the steel wall was completed in late August 2018. In his 

declaration, Martin testified: “It is my opinion that the URM wall did not support any 

portion of the Fox Theater, including the roof trusses, and that the Fox Theater did not 

and does not have any URM elements and did not and does not constitute a URM 

building.”

The Fox Theater was closed on order of the City from April 12 to August 

30, 2018. Lane contended that he and ELI suffered about $875,000 in damages during 

those five months.

PROCEDURAL HISTORY

ELI and Lane filed the present lawsuit in April 2015, before the compliance 

deadline for completing structural changes to the Fox Theater. The third amended 

complaint, which was the subject of the summary judgment motion, asserted a single 

cause of action under section 1983 for violation of constitutional rights. 

The third amended complaint alleged: (1) In 2006, City officials assured 

Lane that the Fox Theater had no seismic retrofitting issues; (2) beginning in 2011 and 

continuing from 2013 through 2014, the City made unfounded charges that the Fox 

Theater was an unreinforced masonry building and presented “‘life safety issues’”; 

(3) based on those charges, the City forced ELI to close the Fox Theater for periods of 

time and required the theater be posted with an earthquake warning notice; (4) the City 

concealed documents, including the Ruth Going Report, which showed that the Fox 

Theater had no brick masonry walls; (5) the Fox Theater was not on the City’s 1989 list 
14

of unreinforced masonry buildings; (6) the wall claimed by the City to be an unreinforced 

masonry wall is part of the adjacent building; (7) starting in 2011 and continuing through 

2014, the City had “deliberately, systematically through its standard policy, custom and 

design, arbitrarily used state and local law to coerce and pressure Lane to sell the Theater 

and leave the City”; and (8) the City “[b]anned the operation of a Church at the Theater 

causing the plaintiffs to lose money in buying out the Church’s lease and by losing the 

monthly rent of $5500 . . . paid to the Theater by the Church.”

The third amended complaint further alleged: “The defendant’s actions as 

described herein were and are a deliberate misuse of authority under color of law which 

deprived the plaintiffs of their substantive due process rights protected by the 14th 

Amendment [to] the United States Constitution in that it subjected them to arbitrary and 

irrational treatment which infringed upon plaintiffs’ liberty and their property.”

The City moved for summary judgment; ELI and Lane opposed. The trial 

court granted the City’s motion for summary judgment. In a written order, the court 

explained its reasons: “Plaintiffs have advanced two theories of constitutional liability: 

substantive due process and equal protection. While recognizing that these theories are 

distinct, the court will proceed with a unitary analysis, because where no fundamental 

rights or suspect classification are involved, the court must evaluate both claims by 

subjecting the governmental action in controversy to rational basis review. [Citation.] 

[¶] The rational basis standard places the burden of persuasion on the complaining party 

to show that the government acted in an arbitrary or irrational manner. [Citation.] Some 

courts have also stated that in order to show improper government action under this 

standard, the government conduct must be ‘an abuse of government power’ that ‘shocks 

the conscience.’ [Citation.] . . . [E]vidence of government mistake or even negligence—

would not, without more, be sufficient to raise a triable issue. [¶] The court finds that 

Defendant, as the moving party, has met its initial burden to show a prima facie case that 

it did not act arbitrarily or irrationally. Defendant provided copies of the law and 
15

ordinances it relied on for legal authority to take the disputed enforcement action. The 

court finds that this showing shifts the burden to Plaintiffs to raise a triable issue as to the 

arbitrary or irrational nature of the government action. [¶] The court finds that Plaintiffs 

have failed to meet their burden to raise a triable issue of fact as to the irrational or 

arbitrary nature of the government action. The court heard Plaintiffs’ legal 

argumentation and examined the citations to the relevant evidence, including the 1976 

Ruth, Going, and Curtis Report, and the spreadsheet listing buildings believed to contain 

unreinforced masonry. If Plaintiffs’ burden were to raise a triable issue as to a mistake—

or even negligence—such evidence might well suffice. But in order to proceed to trial on 

the claim that Plaintiffs have selected, they must adduce evidence of arbitrary or 

irrational government action. Even drawing all evidentiary inferences in favor of 

Plaintiffs, the cited evidence has no tendency to show that Defendant took the 

enforcement actions in an arbitrary or irrational manner.”

Judgment was entered in favor of the City.2 ELI and Lane timely appealed. 

DISCUSSION

I. Standard of Review

“We review orders granting summary judgment de novo. [Citation.] 

Summary judgment is warranted if the moving papers establish there is no triable issue of 

material fact and the moving party is entitled to judgment as a matter of law. [Citations.] 

[¶] We consider all of the evidence presented by the parties (except for evidence which 

the trial court properly excluded), liberally construe the evidence in support of the party 

opposing summary judgment, and resolve all doubts about the evidence in that party’s 

favor. [Citation.] We must draw from the evidence all reasonable inferences in the light 

most favorable to the party opposing summary judgment.” (Caliber Paving Co., Inc. v. 

2

The trial court awarded the City $10,680 on its cross-complaint to recover on a “micro 

loan” made to Lane to fund a structural repair analysis of the Fox Theater. The judgment 

on the cross-complaint was not appealed.
16

Rexford Industrial Realty & Management, Inc. (2020) 54 Cal.App.5th 175, 179-180.) 

“[S]ummary judgment cannot be granted when the facts are susceptible of more than one 

reasonable inference.” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

II. Standards for Proving Deprivation of 

Substantive Due Process

In the third amended complaint, ELI and Lane asserted a claim under 

section 1983 for deprivation of substantive due process. “[T]he arbitrary government 

conduct that triggers a substantive due process violation is not ordinary government error 

but conduct that is in some sense outrageous or egregious—a true abuse of power.” 

(Galland, supra, 24 Cal.4th at p. 1032.) Substantive due process does not “encompass 

governmental mistakes and bureaucratic errors that are something less than an abuse of 

power.” (Id. at p. 1034.) “A substantive due process violation requires more than 

‘ordinary government error,’ and the ‘“‘arbitrary and capricious’”’ standard applicable in 

other contexts is a lower threshold than that required to establish a substantive due 

process violation.” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 

Cal.App.4th 837, 855-856.)

“‘Only a substantial infringement of state law prompted by personal or 

group animus, or a deliberate flouting of the law that trammels significant personal or 

property rights, qualifies for relief under [section] 1983. [Citation.] Inadvertent errors, 

honest mistakes, agency confusion, even negligence in the performance of official duties, 

do not warrant redress under this statute.’” (Galland, supra, 24 Cal.4th at p. 1034, 

quoting Silverman v. Barry (D.C. Cir. 1988) 845 F.2d 1072, 1080.) “[A] deliberate 

flouting of the law may be said to have occurred if the city’s demands for information 

and other procedural demands were so excessive and irrelevant to the regulatory task at 

hand as to lead a court to conclude that such demands were imposed not in order to 

obtain more information or increase the reliability of the eventual decision, but rather to 
17

obstruct or discourage landlords from either requesting or obtaining reasonable rent 

increases to which they are constitutionally entitled.” (Galland, supra, at p. 1036.)

III. The Evidence Is Not Reasonably Susceptible to the 

Inference that the City’s Conduct Was 

Outrageous or Egregious

As the standard of review dictates, we resolve doubts about the evidence in 

favor of ELI and Lane. This means we deem to be true the conclusions made by Martin 

in his July 31, 2018 letter to the City and in his declaration that the theater roof trusses 

were not supported by a masonry wall, the theater was safe for occupancy without the 

steel frame retrofit, and the theater did not have any unreinforced masonry elements and 

was not an unreinforced masonry building. 

The City cannot be liable, however, for a substantive due process violation 

solely because it made mistakes or was negligent. Reversal is warranted only if it is 

reasonable to draw from the evidence the inference that the City acted outrageously or 

egregiously or deliberately flouted the law. Our independent review of the evidence 

presented by the parties, viewed in the light most favorable to ELI and Lane, leads us to 

conclude the evidence is not reasonably susceptible to such an inference. That is the case 

whether the City’s actions are viewed individually or in their totality.

A. ELI and Lane’s Contentions

ELI and Lane argue that the City’s actions, when viewed together, raise 

triable issues of material fact. In particular, ELI and Lane identify these facts as 

establishing the City engaged in outrageous conduct and “specifically targeted” him “at a 

level beyond mere negligence”:

1. At the meeting in September 2006, City officials told Lane the theater 

needed no retrofits and represented to him the theater was not on the City’s list of 

unreinforced masonry buildings.
18

2. At the September 2006 meeting, City officials told Lane that all 

earthquake issues for buildings in downtown Salinas had been reviewed and updated and 

all necessary earthquake repairs were known and identified.

3. The City’s initial charge that the theater needed retrofits was based on a 

limited inspection by a City building official.

4. The theater’s prior owner had communications with the City clearing the 

theater of any retrofitting needs.

5. The City sent a legal demand to Lane and accelerated the administrative 

process shortly after learning that his father had terminal cancer.

6. The City required Lane to post a sign outside the theater advising 

visitors they would be unsafe inside.

7. The City imposed deadlines to address the safety issues that were far 

shorter than those provided by applicable ordinances.

8. Internal e-mail communications between City officials “confirmed” that 

Lane could have rented the theater for church services but continued to issue violation 

notices requiring Lane to terminate the lease with the Church.

9. The City recorded a notice that the theater was an unreinforced masonry 

building despite internal City documents stating the theater was not an unreinforced 

masonry building.

10. The City did not inform Lane of the Ruth Going Report, which 

concluded the theater was not an unreinforced masonry building, until 2017, five years 

after accusing him of operating an unsafe building. 

11. Lane consulted with his own engineer to make sure the theater was not 

an unreinforced masonry building and informed the City of the engineer’s conclusions in 

February 2012. The City did not respond in substance to the engineer’s conclusions.
19

12. The City ignored Lane’s requests that the City investigate fully the 

claim that the theater needed a retrofit.3

B. A Review of the Evidence

The facts selected by ELI and Lane do not provide a complete picture or 

provide context. Lane contends that in 2006 the City made representations about the Fox 

Theater to mislead him into purchasing it and to “dupe[] him into expending hundreds of 

thousands of dollars into improving it.” The evidence is not reasonably susceptible to 

that inference. The City’s representations made to Lane were accurate when made: In 

September 2006, when Lane met with City officials, the theater indeed had no reported 

unreinforced masonry issues and was not on the City’s list of unreinforced masonry 

buildings. The City was not forever bound by earlier determinations about the theater 

and had the ability and the responsibility to enforce its unreinforced masonry ordinance 

upon discovery of a potential violation. (Cf. Stubblefield Construction Co. v. City of San 

Bernardino (1995) 32 Cal.App.4th 687, 711 [“A legislative body is generally not bound 

by the actions of its predecessors”].) 

No evidence was presented to connect the City’s representations made in 

September 2006 with Richardson’s inspection six years later and the City’s issuance of 

the Notice. In 2012, Richardson concluded that the Fox Theater’s roof trusses appeared 

to rest on an unreinforced masonry wall on the south side of the building. His inspection 

was admittedly limited: His observations were made at a distance, in poor light, and with 

incomplete access. Richardson’s photographs did show, and Martin’s later investigation 

confirmed, there was an unreinforced masonry wall that, as it turned out, was part of the 

adjacent building and some of the roof trusses at least appeared to be supported by that 

3

At oral argument, counsel for ELI and Lane asserted that by granting the City’s motion 

for summary judgment, the trial court had deprived them of the opportunity to conduct 

further discovery. This point was not raised in ELI and Lane’s appellate briefs, and we 

have found nothing in the record to indicate that ELI and Lane requested a continuance of 

the City’s motion for summary judgment in order to conduct discovery.
20

wall. Richardson might have acted negligently in conducting his inspection and drawing 

his conclusions regarding the roof trusses, but negligence is not the appropriate standard. 

Although eventually shown to be incorrect, Richardson’s conclusions based on his 

inspection were not outrageous or egregious. 

Richardson asked Lane to provide the City his own engineer’s report and 

opinion bearing a professional engineer’s seal. Martin conducted an inspection of the 

Fox Theater in February or March of 2012 and concluded the masonry wall did not 

support the roof trusses. Martin did not, however, conduct a structural analysis or 

prepare a formal engineer’s report; he orally informed Lane, DeSante, and Richardson of 

his conclusion that the masonry wall was not load bearing. When Lane informed 

Richardson that the Fox Theater was not on the City’s 1989 list of unreinforced masonry 

buildings, Richardson acknowledged that fact but pointed out that the relevant fact was 

the best available information about theater’s condition at the present time.

The City served the Notice just 10 days after Lane had informed the City 

that he would be out of town to care for his terminally ill father. The timing of the Notice 

was indeed callous, and the deadlines imposed were inconsistent with the Seismic 

Strengthening Ordinance. But the deadlines set in the Notice were never enforced and no 

evidence was submitted to show that Lane suffered prejudice from the shortened 

deadlines. The deadlines were ultimately extended to give ELI and Lane the full amount 

of time (five years to complete construction) provided by the Seismic Strengthening 

Ordinance. Even if the initial deadlines imposed by the Notice could be described as a 

“deliberate flouting of the law,” the City corrected the error so that a reasonable inference 

could not be drawn the deadlines were imposed to “obstruct or discourage” ELI and Lane 

from compliance. (Galland, supra, 24 Cal.4th at p. 1036.)

Lane had the option, and the obligation under section 9-5.11(c) of the 

Seismic Strengthening Ordinance, to “cause a structural analysis to be made of the 

building by an engineer or architect licensed by the State.” Richardson had requested an 
21

engineer’s report, but Lane characterized that request as punitive and did not request 

Martin to conduct a structural analysis of the theater. Martin did not conduct such an 

analysis until years later. A structural analysis and formal report bearing Martin’s 

professional seal very well might have resolved the issues raised by the Notice without 

the need for expensive seismic retrofitting. But Lane chose not to have one conducted. 

The City did not act outrageously or egregiously by declining to accept an oral report of 

Martin’s findings and insisting on a formal structural analysis. 

Instead of having a structural analysis conducted, Lane went ahead with 

plans prepared by his design engineers to make the structural repairs required in the 

Notice. ELI applied for and received a building permit for the structural retrofit of the 

unreinforced masonry wall on the south side of the theater. The permit was approved in 

March 2014, but ELI never pulled the permit and let it expire without completing the 

seismic retrofit by the February 2018 deadline. 

The evidence does not support an inference that the City acted outrageously 

or egregiously with respect to use of the theater for worship services. The CUP issued to 

Gemini excluded use of the Fox Theater for “assembly and similar uses described in 

Zoning Code Section 37-40.310(a)(2),” which in turn permitted religious assembly only 

above the ground floor. Those restrictions were no secret: They are found in the CUP, 

which ELI and Lane had, and the municipal code, which is available to the public. The 

Church was impermissibly allowed to hold worship services on the ground floor of the 

Fox Theater. Lane testified to that. The City properly cited ELI, and ELI did not appeal 

the citation. (See Galland, supra, 24 Cal.4th at p. 1036 [“a landlord who believes that a 

rent board’s information request is arbitrary and overly burdensome must register an 

objection to the request and give some explanation for the objection”].)

It might have been possible for worship services to be held on the 

mezzanine and upper levels of the Fox Theater, but ELI and Lane never explored that 

option. ELI and Lane could easily have referred to the City municipal code, which was 
22

public information, and determined whether worship services could be held somewhere 

within the theater. Although there were internal e-mail discussions among City officials 

about holding worship services on the upper levels of the theater, no conclusion was 

made. 

The City did not inform Lane of the Ruth Going Report, and ELI and Lane 

contend the City suppressed the report as part of a “deliberate cover up.” The 

significance of the Ruth Going Report, according to ELI and Lane, is that it identifies the 

Fox Theater as not an unreinforced masonry building. The fact the Fox Theater was not 

on the City’s 1989 list of unreinforced masonry structures was never hidden or concealed 

from ELI or Lane. In 2012, Richardson acknowledged the theater was not on that list, 

and the Notice states “[c]urrently the building is not included on the City’s list of 

[unreinforced masonry] buildings; however, it will be added.” Although, according to 

the Ruth Going Report, the Fox Theater had no masonry wall, it was no secret that the

masonry wall in question was part of an adjacent building. Under section 9-5.10(h) of 

the Seismic Strengthening Ordinance, it was necessary for ELI and Lane to show that the 

theater’s roof trusses did not rely on the adjacent unreinforced masonry for carrying loads 

during an earthquake.

Further, the Ruth Going Report dates from June 1976 and was based on 

1973 earthquake standards. Those earthquake standards were updated after the 1989 

Loma Prieta earthquake. Finally, the Ruth Going Report states that “it is beyond the 

scope of this investigation to determine the strength, size & spacing of the concrete 

[walls], a meaningful analysis at this time is impossible” and recommends “a thorough 

investigation under gravity & seismic loads should be made.” 

The structural retrofit was not commenced or completed within the 

five-year deadline for complying with the Notice. The City therefore did not act 

outrageously or egregiously by serving the Repair or Abate Order, deeming the Fox 

Theater to be unsafe for occupancy, and temporarily shutting it down. ELI and Lane 
23

received extensions to comply with the Notice requirements. In April 2018, ELI 

commenced construction of a steel wall between the unreinforced masonry wall and a 

wooden wall. 

During the course of this construction, Martin conducted the structural 

analysis that could, and probably should, have been conducted six years earlier. He at 

last prepared a formal report on which he affixed his professional seal. Martin concluded 

the unreinforced masonry wall did not support the roof trusses and the theater was safe 

for occupancy without the steel wall that was then being constructed. 

C. Conclusions

From the evidence, viewed in the light most favorable to ELI and Lane, a 

reasonable inference cannot be drawn that the City acted outrageously or egregiously. 

The City’s actions were not “irrelevant to the regulatory task at hand” (Galland, supra, 

24 Cal.4th at p. 1036) and were “‘sufficiently keyed to . . . legitimate state interests’”

(Stubblefield Construction Co. v. City of San Bernardino, supra, 32 Cal.App.4th at 

p. 710). It cannot be doubted that, in California, seismic safety of buildings is a 

legitimate government concern. (Copp v. Paxton (1996) 45 Cal.App.4th 829, 843 

[“Earthquake safety and procedures in an urban area through which a great fault runs is 

of vital public concern”].) Following the Loma Prieta earthquake in 1989, the City 

enacted the Seismic Strengthening Ordinance with the purpose “to promote public safety 

and welfare by reducing the risk of death or injury that may result from the effects of 

earthquakes on existing unreinforced masonry bearing wall buildings.” (Seismic 

Strengthening Ord., § 9-5.1.) The City may validly exercise its police power to promote 

“public health, safety, morals, and general welfare” by enforcing building codes and 

zoning ordinances. (Miller v. Board of Public Works of Los Angeles (1925) 195 Cal. 477, 

487-488.) 

Richardson’s findings, albeit based on a limited inspection, had a rational 

basis. Given the potential for loss of life and damage from an earthquake, and the City’s 
24

responsibility to protect public safety, it was not irrational, and certainly not outrageous 

or egregious, for the City to issue the Notice, pursue remediation of the Fox Theater, and

require Lane to post a notice that the theater might be unsafe for occupancy. For the 

same reasons, the City was justified in requesting that ELI and Lane submit a formal 

engineer’s report. It is highly significant that ELI and Lane might have avoided the cost 

of seismic retrofitting by exercising their option under the Seismic Strengthening 

Ordinance of having a structural analysis of the theater conducted and a formal 

engineer’s report prepared once they had received the Notice. But they did not have 

Martin conduct this type of analysis until 2018, during construction of the steel wall. 

Although ELI and Lane argue that a jury should be permitted to judge the 

City’s motives, they presented no evidence to support their claim the City acted out of 

personal animus toward them or singled them out. For example, ELI and Lane presented 

no evidence that the City enforced the building code against them while declining to 

enforce it against others in the same or similar situation. None of the communications 

from the City reflect any kind of personal animus. At oral argument, counsel for ELI and 

Lane did not know of any reason why the City might have acted out of personal animus 

toward Lane. Further, the motivation of individual government actors is irrelevant if the 

government’s action substantially advances a legitimate government interest. (Breneric 

Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 184-185; see Landgate, Inc. v. 

California Coastal Com. (1998) 17 Cal.4th 1006, 1022 [“courts do not delve into the 

individual purposes of decisionmakers in a quasi-adjudicative proceeding”].)

When viewed in the light most favorable to ELI and Lane, the evidence 

might be susceptible to an inference that the City was wrong, mistaken, and/or negligent 

in issuing the Notice and the Repair or Abate Order, finding the unreinforced masonry 

wall adjacent to the Fox Theater supported the roof trusses, and requiring ELI and Lane 

to post signs that the theater was unsafe and to make expensive retrofit improvements to 
25

the theater. But government error, mistake, or negligence does not constitute a 

substantive due process violation. (Galland, supra, 24 Cal.4th at pp. 1033, 1034.) 

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.