People Ex Re. Gow v. Mitchell Brothers' Santa Ana Theater

• Decision Date: 20 January 1981
• Citation: 114 Cal.App.3d 923,171 Cal.Rptr. 85
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California ex rel. Keith GOW, City Attorney of the City of Santa Ana, California, Plaintiffs and Appellants, v. MITCHELL BROTHERS SANTA ANA THEATER et al., Defendants and Appellants. Civ. 19940.

Page 85

171 Cal.Rptr. 85

114 Cal.App.3d 923

PEOPLE of the State of California ex rel. Keith GOW, City Attorney of the City of Santa Ana, California, Plaintiffs and Appellants, v. MITCHELL BROTHERS SANTA ANA THEATER et al., Defendants and Appellants.

Civ. 19940.

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

Jan. 20, 1981.

Hearing Denied May 13, 1981.

Joseph Rhine, Hollywood, William K. Maas, Jr., Martinez, and Robert Thorp, San Francisco, for defendants and appellants.

James J. Clancy, Sun Valley, for plaintiffs and appellants.

MORRIS, Associate Justice.

The plaintiff and the defendants appeal following a trial to determine whether the showing of allegedly obscene films by the defendant constituted a public nuisance. The case was tried in part by a jury and in part to the court. Judgments were entered finding certain of defendants' films obscene and granting part of the relief requested by plaintiff.

Facts

Pursuant to Code of Civil Procedure section 731, ¹ the Santa Ana City Attorney ("City") brought an action against the owners and operators of the Mitchell Brothers' Santa Ana Theater ("defendants") to abate a public nuisance. The City's complaint listed numerous films shown by the defendants between November 28, 1975 and March 30, 1977, all of which were alleged to be obscene. It was alleged that the showing of these films constituted a public nuisance as defined by Civil Code sections 3479 and 3480. ² The City sought the following relief: that the court approve a resolution passed by the Santa Ana City Council revoking all of the defendants' operating licenses and permits; that the defendants be permanently enjoined from showing the named films; that the named films be destroyed by the State; that the box office receipts from the showing of the films be forfeited; that the defendants' theater be closed for one year; that the theater's fixtures and movable property be removed by the police and sold; that the plaintiff receive compensatory and punitive damages, and that the plaintiff recover costs and attorney's fees.

The court ruled that the issues of obscenity, public nuisance, and damages would be decided by a jury prior to the court's resolution of the equitable remedies issues. The court reasoned that since all relief sought by the City was dependent on a prior finding of obscenity and nuisance, a "prior resolution of the equitable issues would require a judicial determination of the issues of 'obscenity' and 'public nuisance' and would thus deprive defendants of a full and meaningful jury trial on the issue of damages." The jury trial itself was bifurcated. The jury first decided the issues of obscenity and public nuisance and then determined the amount of damages recoverable.

During the obscenity and public nuisance phase of the trial, the jury viewed 17 films at the defendants' theater. ³ The jury also heard extensive testimony from both lay and expert witnesses. After all the evidence had been presented, the jury was read over 50 separate instructions. Included in the instructions was the requirement that a film could be found obscene only if the jurors were convinced of such "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene and could not reach a verdict on the remaining two.

After further presentation of evidence during the damages phase of the trial, the jury was instructed on the issues of nominal, compensatory and punitive damages. The jury awarded a total of $76,400 in compensatory damages and awarded no punitive damages.

Thereafter, the court issued its judgment and findings of fact and conclusions of law on the equitable issues. The court ruled in favor of the defendants on the issues of a constructive trust on the theater's box office receipts, the revocation of defendants' license, and the closing of the theater for one year. In the City's favor, the court permanently enjoined the exhibition or advertising by the defendants of the same 11 films which had been found obscene by the jury; ordered the defendants to allow the City's officers "free and total access to all parts of the theatre" for a two-year period for monitoring purposes; ordered the defendants to deposit $100,000 "in trust for the City ... as a security deposit against future attorney fees, costs, and expenses incurred by the City" in abating future nuisances by the defendants within a two-year period; ordered the destruction of the 11 "motion picture film prints" that were found obscene; and awarded the City the recovery of $5869.31 in costs.

In total, five notices of appeal were filed. The defendants appealed and the City both appealed and cross-appealed "from the jury verdicts" on the issues of obscenity and damages. ⁴ Additionally, the City and the defendants appealed from those portions of the "Judgment After Trial By Court" that were adverse to them. The errors asserted by the parties are too numerous to summarize at this point. ⁵ They will be dealt with at the appropriate parts of our discussion.

Obscenity as a Public Nuisance

The defendants spend considerable time arguing that the use of equitable remedies in a civil action to abate a public nuisance is not a valid method of regulating obscenity. Although the California Supreme Court has expressly ruled contrary to this position (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, cert. den. sub nom., Van de Kamp v. Projection Room Theater, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289), the defendants criticize the ruling as "imprudent" and ask us nevertheless to uphold their argument. This we cannot do. Few principles of law are more basic than that courts are bound by the decisions of those other courts which exercise superior jurisdiction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Since Busch holds that a state may regulate the exhibition of obscene matter by application of public nuisance statutes (17 Cal.3d at p. 55, 130 Cal.Rptr. 328, 550 P.2d 600), we must conclude that the present action was properly brought. ⁶

Busch, however, dealt only with a trial court's judgment sustaining a demurrer without leave to amend. And, since no reported case in this state has yet reviewed a final judgment following a full trial in a Busch -type lawsuit, many issues regarding trial procedures and remedies in such an action remain to be addressed. ⁷

Remedies

The defendants contend, on a variety of theories, that the trial court erred in granting any of the relief sought by the City. The City, on the other hand, cites numerous alleged errors by the trial court that led to what it contends was a wrongful denial of other requested remedies. We need not deal with each asserted error since we hold that, in this case, injunctive relief against those movies found to be obscene is the only remedy allowable under the public nuisance statutes. Thus, the trial court erred in awarding damages to the City, in allowing the City's officer "free and total access to all parts of the theatre," in ordering the maintenance of a $100,000 "trust fund" for possible future City legal costs, and in ordering the destruction of the 11 films found to be obscene.

This action was brought under the authority of Code of Civil Procedure section 731, which, inter alia, empowers a city attorney to bring a civil action "to abate a public nuisance." Abatement, however, is the sole relief that section 731 authorizes the city attorney to seek. This is evident when the above-quoted language is compared to the first portion of the statute. That portion allows an action to be brought by "any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance ...." Such a person is expressly authorized to seek a judgment where "the nuisance may be enjoined or abated as well as damages recovered therefor." (Emphasis added.) It is clear that the Legislature intended that one type of litigant could seek abatement and damages, while the other type of litigant could obtain abatement only. A city attorney, in an action "brought in the name of the people," fits squarely and exclusively in the latter classification.

The City attempts to fit itself into the class of litigants who can seek damages by relying on Civil Code section 14, which provides that "the word person includes a corporation as well as a natural person." ⁸ The City reasons that since the action was brought by the city attorney at the direction of an incorporated city, this somehow converts the action into one brought by a "person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance." This argument borders on the frivolous. We agree with the defendants that "(w)ord games are being employed by Respondent to circumvent the straight-forward provisions of the code." Since abatement is the only relief that can be granted in this case, the portion of the judgment awarding damages must be reversed.

We also conclude that the other remedies granted by the trial court, except for the injunction, are inconsistent with the language of section 731. The City's arguments to the contrary appear to stem from an erroneous view of what constitutes the public nuisance that may be abated. This misunderstanding can be seen from the City's extensive argument concerning the asserted error of the trial court in refusing to close the defendants' theater for a period of time. The theater should be closed, the City contends, because "(t)he suppression of nuisances injurious to public health or morality is among the most important duties of government." (Phalen v. Commonwealth of Virginia (1850) 49 U.S. (8 How.) 163, 168, 12 L.Ed. 1030, 1033.) It thus appears that the City believes that it is the theater that constitutes the public nuisance. ⁹ This is an incorrect reading of the Busch decision. In Busch, the court states that "the exhibition of...