14 Cal.App.3d 167, Civ. 35846, Van Nuys Publishing Co. v. City of Thousand Oaks

Docket NºCiv. 35846
Citation14 Cal.App.3d 167, 92 Cal.Rptr. 76
Opinion JudgeCOMPTON, Associate Justice.
Party NameVan Nuys Publishing Co. v. City of Thousand Oaks
Attorney[92 Cal.Rptr. 77]Willard R. Pool, Garden Grove, for plaintiff and appellant. Hathaway, Clabaugh & Perrett by E. E. Clabaugh, Jr., Ventura, for defendant and respondent.
Judge PanelHERNDON, Acting P. J., and FLEMING, J., concur.
Case DateJanuary 08, 1971
CourtCalifornia Court of Appeals

Page 167

14 Cal.App.3d 167

92 Cal.Rptr. 76

The VAN NUYS PUBLISHING COMPANY, Incorporated, etc., Plaintiff and Appellant

v.

The CITY OF THOUSAND OAKS, etc., Defendant and Respondent.

Civ. 35846.

California Court of Appeal, Second District, Second Division.

Jan. 8, 1971.

For Opinion on Hearing see 97 Cal.Rptr. 777, 489 P.2d 809

Opinion on pages 167 to 177 omitted

HEARING GRANTED

[92 Cal.Rptr. 77]Willard R. Pool, Garden Grove, for plaintiff and appellant.

Hathaway, Clabaugh & Perrett by E. E. Clabaugh, Jr., Ventura, for defendant and respondent.

COMPTON, Associate Justice.

Plaintiff and appellant, Van Nuys Publishing Co., Inc. (hereinafter referred to as Publisher) sought to enjoin the City of Thousand Oaks (hereinafter referred to as the City) from enforcement of one of its ordinances on the grounds that the ordinance unconstitutionally abridged freedom of speech and press. The trial court found the ordinance to be 'constitutional in general and as applied to plaintiff,' and denied the injunction. Publisher appeals.

Publisher's newspaper 'The Valley News and Green Sheet,' is a newspaper of general circulation which contains local news and advertising as well as general information covering social, economic and religious subject matters. It is distributed in parts of Los Angeles and Ventura County.

Publisher's circulation in 1966 in the City of Thousand Oaks was 3500. Some of Publisher's papers were distributed free and some were distributed by way of subscription contracts. Publisher's circulation in Thousand Oaks was 'controlled' in that Publisher knew where every copy was distributed. Finally, both non-subscription and subscription home deliveries were made by newsboys between the ages of eleven and fifteen.

In July 1966, City enacted Ordinance No. 98, to become effective on or about the 18th of August 1966.

Section 4 of the Ordinance reads as follows: 1

'No person may throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspaper, paper, booklet, poster, other printed matter or advertising literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep or vestibule, in any public hallway, or upon any vacant lot or other private property without having first obtained permission of the owner or of an adult resident or occupant thereof.' Violation of this ordinance is made a misdemeanor.

Section 1 of Ordinance No. 98 serves as the City's preamble for the ordinance and declares that 'The City Council of the City of Thousand Oaks finds and determines that entire communities within the City and a considerable number of citizens are adversely affected by persons, without consent, throwing, casting, distributing, scattering and depositing handbills, dodgers, circulars, newspapers, booklets, posters, printed matter and advertising literature upon public and private property. These acts are declared to constitute a public nuisance.'

[92 Cal.Rptr. 78]On August 12, 1966, the Superior Court for the County of Ventura issued a preliminary injunction enjoining the enforcement of the ordinance against Publisher.

On November 7, 1967, the superior court rendered judgment in favor of Publisher and permanently enjoined City from enforcing Ordinance No. 98 against Publisher. Thereafter, City moved for a new trial. The court reopened the case on May 17, 1968, in lieu of granting a new trial. Finally, on March 14, 1969, the court reversed its previous position and ordered judgment for City, resting its decision on the authority of Di Lorenzo v. City of Pacific Grove, 260 Cal.App.2d 68, 67 Cal.Rptr. 3.

Publisher's attack on the City's ordinance raises two critical issues. First, Publisher argues that the section in question is not within the constitutionally permissible range of legislative regulation and impinges on Publisher's guaranteed rights of free speech and free press.

Second, ostensible distinctions between the language of the Di Lorenzo ordinance and the City's ordinance require consideration of whether City's ordinance is too broadly constructed and includes within its scope, activities which cannot constitutionally be regulated. For reasons hereinafter noted we conclude that the stated purpose of Ordinance No. 98 is both legitimate and substantial and is not 'pursued by means that broadly stifle fundamental personal liberties.' (Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.)

The reported opinions of the appellate courts throughout this country contain a chronicle of numerous and colorful conflicts between municipal authorities and persons who contended that legislative enactments of the municipalities impinged upon their various constitutional freedoms.

We are called upon to examine once again the question of whether the actions of a municipal legislative body in seeking to protect its constituency against conduct which is apparently offensive to a majority has overstepped constitutional boundaries.

We agree with the trial judge in the instant case that the result reached in Di Lorenzo, supra, and the...

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1 practice notes
  • 16 Cal.App.3d 766, 12688, Young v. Municipal Court
    • United States
    • California California Court of Appeals
    • April 19, 1971
    ...[2] On March 26, 1971, the California Supreme Court ordered a hearing in a parallel case. (Van Nuys Pub. Co. v. City of Thousand Oaks, 14 Cal.App.3d 167, 92 Cal.Rptr. 76.) Thus the court has demonstrated a desire to review local ordinances of the kind sustained in Di Lorenzo,...
1 cases
  • 16 Cal.App.3d 766, 12688, Young v. Municipal Court
    • United States
    • California California Court of Appeals
    • April 19, 1971
    ...[2] On March 26, 1971, the California Supreme Court ordered a hearing in a parallel case. (Van Nuys Pub. Co. v. City of Thousand Oaks, 14 Cal.App.3d 167, 92 Cal.Rptr. 76.) Thus the court has demonstrated a desire to review local ordinances of the kind sustained in Di Lorenzo,...