Busch v. Projection Room Theatre

• Decision Date: 27 December 1974
• Citation: 44 Cal.App.3d 111,118 Cal.Rptr. 428
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. PROJECTION ROOM THEATRE et al., Defendants-Respondents. Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. STAN'S BOOKS et al., Defendants-Respondents. Joseph P. BUSCH, etc., et al., Plalntiffs-Appellants, v. BOOK BIN et al., Defendants-Respondents. Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. GALAXY BOOK STORE et al., Defendants-Respondents. Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. JASON'S BOOKS et al., Defendants-Respondents. Civ. 44184 to 44187, Civ. 43610.

Page 428

118 Cal.Rptr. 428

44 Cal.App.3d 111

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. PROJECTION ROOM THEATRE et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. STAN'S BOOKS et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plalntiffs-Appellants, v. BOOK BIN et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. GALAXY BOOK STORE et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. JASON'S BOOKS et al., Defendants-Respondents.

Civ. 44184 to 44187, Civ. 43610.

Court of Appeal, Second District, Division 3, California.

Dec. 27, 1974.

For Opinion on Hearing, see 128 Cal.Rptr. 229, 546 P.2d 733..

Joseph P. Busch, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head of Appellate Div., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., and Burt Pines, City Atty. of City of Los Angeles, and Edward A. Schlotman, Deputy City Atty., for plaintiffs and appellants.

Fleishman, McDaniel, Brown & Weston, David M. Brown, Harrison W. Hertzberg, and Joshua Kaplan, Los Angeles, for defendants and respondents.

POTTER, Associate Justice.

In these consolidated appeals plaintiffs, the District Attorney of Los Angeles County and the City Attorney of the City of Los Angeles, attack judgments of dismissal in five separate civil actions brought by them seeking injunctive and other relief designed to stop the continued operation of five so-called 'adult' book stores and 'adult' theatre establishments. Since the judgments of dismissal were in each case based upon orders sustaining, without leave to amend, general demurrers on the ground that the complaints failed to state facts sufficient to constitute a cause of action, the allegations in each of the complaints must be accepted as true.

According to the complaints, the five places of business described therein were being operated by the defendants 'for the purpose of lewdness.' ¹ All the complaints followed a single form, and alleged that '[h]eretofore and prior to the filing of this complaint acts of lewdness have taken place in and upon said premises and are now taking place therein and thereon.' In each case, however, the complaint specified '[t]hat said lewdness consists of past and continuing exhibition of motion picture films and magazines' ² at the business establishment in question. The complaints in each case continued by alleging that all of such motion pictures and magazines 'are lewd and obscene under the laws of this State.' In this respect it was specified that (a) the dominant theme of the films and magazines, 'taken as a whole, appeals to the prurient interest in sex,' (b) that such 'films and magazines are patently offensive because they affront contemporary community standards relating to the description or representation of sexual matters,' and (c) that said 'pictures and magazines are utterly without social value.'

Each of the complaints attached and incorporated by reference exhibits which included police crime reports detailing the physical layout of each of the premises, copies of examples of magazines exhibited, and so-called time and motion studies of films. ³

Each of the complaints further alleged (1) that the premises were being operated for profit (a matter explained in more detail in the exhibits which related the charges made for 'browsing' among the magazines, for the purchase thereof, and for viewing the various motion picture films), and (2) that 'unless restrained and enjoined therefrom, defendants, and each of them, will continue to maintain and conduct said premises for the purposes of lewdness and will continue to permit such acts to take place therein and thereon.' The remaining allegations of the complaints were essentially conclusory in nature; they consisted of statements concerning the law of California in respect of public nuisances in general and in particular the abatement of premises used for the purpose of lewdness.

The prayer in each of the complaints sought preliminary and permanent injunctive relief restraining defendants from conducting the premises as a public nuisance and from continuing the acts of 'lewdness' (the exhibition of the obscene material) on the premises. The prayer further asked that the premises be abated in accordance with the provisions of sections 11230 and 11231 of the Penal Code by closure for one year, the sale of all fixtures, and application of the proceeds in accordance with such sections. Each prayer included, as well, the prayer '[t]hat plaintiff be granted such other and further relief, as to this court may seem fit and just.'

In each instance the court, in sustaining the demurrer, indicated that it was bound to do so by the holding of this court in Harmer v. Tonylyn Productions, Inc., 23 Cal.App.3d 941, 100 Cal.Rptr. 576, that the exhibition of a motion picture, however, obscene, in a closed theatre (a) was not a public nuisance and (b) did not constitute a use of such theatre for the purpose of 'lewdness, assignation, or prostitution' under the Red Light Abatement Law (Pen.Code, § 11225 et seq.).

Defendants did not contend in the trial court, nor do they contend on this appeal, that the complaints did not adequately allege that the motion pictures and magazines being exhibited and sold at the five places of business described in the complaints were obscene. We may, therefore, spare the reader of this opinion any detailed description of them. Suffice it to say that if the allegations of the complaints as supplemented by the exhibits are true, the motion pictures and the magazines exhibited at defendants' places of business constitute hard-core pornography and are obscene when judged by the standard set forth in section 311 of the Penal Code, as that section has been interpreted by the appellate courts of this state. Though this standard may, by retaining the 'utterly without redeeming social importance' requirement, define obscenity more narrowly than it might have under Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, it is a valid definition of matter excluded from protection under the constitutional guarantees of freedom of speech. (People v. Enskat, 33 Cal.App.3d 900, 912, 109 Cal.Rptr. 433.)

The question posed by this appeal is, therefore, rather narrow in scope: it is simply whether there is any relief which the plaintiffs may be awarded by the court on account of defendants' alleged conduct consisting of the operation of book stores exhibiting obscene magazines and viewing facilities exhibiting obscene motion pictures, which exhibition is continuously engaged in but visible only to those adults who voluntarily choose to see it and who have paid an admission price therefor.

Appellants advance two legal theories in support of their contention that the complaints do state causes of action. They are:

(1) The activities of defendants constitute public nuisances under the provisions of sections 3479 and 3480 of the Civil Code and section 370 of the Penal Code, which make a public nuisance 'anything which . . . is indecent, or offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property' and which 'affects at the same time an entire community or neighborhood, or any considerable number of persons.'

(2) Defendants' places of business constitute nuisances under the provisions of section 11225 of the Penal Code, which in pertinent part provides: 'Every building or place used for the purpose of . . . lewdness, assignation, or prostitution . . . is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.'

Appellants are obliged to fit the allegations of their complaints into some category of conduct declared by statute to be a public nuisance in view of the decision of our Supreme Court in People v. Lim, 18 Cal.2d 872, 118 P.2d 472. In that case the court rejected the contention that a public nuisance should be defined 'for the purposes of an injunction as any repeated and continuous violation of the law' (18 Cal.App.2d at p. 880, 118 P.2d at p. 476) and imposed the requirement that there be a legislative declaration 'establishing those standards of public morality, the violations of which are to constitute public nuisances within equity's jurisdiction.' (18 Cal.2d at p. 879, 118 P.2d at p. 476.) The issues are, therefore, as follows:

Issues

1. Can the continuous exhibition in a book store, or theatre specializing in pornography, of obscene motion pictures and magazines constitute an activity which

is 'indecent or offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property' and which 'affects at the same time an entire community or neighborhood, or any considerable number of persons'?

2. Can the operation of book stores or theatres in such fashion constitute them 'places used for the purpose of . . . lewdness, assignation, or prostitution?'

The Conduct of Defendants as Described in the Complaints is a Public Nuisance

The argument by both sides with respect to the issue whether the defendants' conduct as described in the complaints comes within the provisions of sections 3479 and 3480 of the Civil Code and section 370 of the Penal Code defining a public nuisance is confined substantially to a discussion of two cases: Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941, 100 Cal.Rptr. 576, and Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446.

In Harmer this court affirmed on appeal a judgment of dismissal based upon a ruling sustaining a demurrer (without leave to amend) to a complaint seeking 'an injunction to prevent the exhibition in a closed theater of a motion picture . . . and to abate it as a public nuisance.' One of the bases upon which the appellant sought to support the complaint was the provisions of sections 3479 and 3480 of the Civil Code...