County of Sacramento v. Superior Court

• Decision Date: 21 October 1982
• Citation: 137 Cal.App.3d 448,187 Cal.Rptr. 154
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF SACRAMENTO et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent. GOLDIE'S BOOKSTORES, INC., Real Party in Interest. Civ. 21618.

Page 154

187 Cal.Rptr. 154

137 Cal.App.3d 448

COUNTY OF SACRAMENTO et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent GOLDIE'S BOOKSTORES, INC., Real Party in Interest.

Civ. 21618.

Court of Appeal, Third District, California.

Oct. 21, 1982.

As Modified on Denial of Rehearing

Nov. 16, 1982.

Hearing Denied Dec. 15, 1982.

L. B. Elam, County Counsel, and Franklin M. Garcia, Deputy County Counsel, Sacramento, for petitioners.

No appearance for respondent.

Arthur Wells, Jr., Oakland, for Real Party in Interest.

PUGLIA, Presiding Justice.

Petitioners Sacramento County and its sheriff are defendants in an action pending in the respondent superior court. In this writ proceeding, they seek mandate to secure a protective order limiting discovery and to vacate a trial court stay of enforcement of an ordinance. A writ of mandate will issue directing the granting of a protective order.

The pending action in respondent court tenders a challenge to the provisions of chapter 9.87 of the Sacramento County Code. Chapter 9.87 deals with the operation of picture arcades which are there defined as "any place to which the public is admitted or any public place, wherein one or more still or motion picture machines or projectors are operated or maintained to show still or motion pictures to five or fewer persons." (Sacramento Co. Code, § 9.87.010.) The ordinance also provides "No picture arcade shall be maintained or operated unless the complete interior of the place where the pictures are viewed is visible upon entrance to such place. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained." (§ 9.89.020.)

Chapter 9.87 was enacted December 17, 1981, as an urgency measure to take effect immediately as to picture arcades not yet open for business; existing arcades were given three months (until March 17, 1982) to conform their viewing booths. (§ 9.87.030.) The recited facts constituting the urgency were: "The Sheriff has determined that enclosed or concealed booths in picture arcades greatly increase the potential for misuse of the premises, including unlawful conduct and bodily harm to law-abiding patrons. This ordinance will greatly decrease the potential harm to the public."

Goldie's Bookstores, Inc. (Goldie), the real party in interest here and plaintiff in the trial court action, has operated a so-called adult bookstore at 4978 Watt Avenue in the County of Sacramento since before the enactment of chapter 9.87. On February 18, 1982, Goldie filed suit for injunctive and declaratory relief, naming among the defendants the county and the sheriff. The complaint alleges the ordinance violates the First Amendment (U.S.Const., 1st Amend.) and is unconstitutional on its face and as applied because, inter alia, it is not narrowly drawn to further an important governmental interest and is overbroad in that its terms are unnecessary to regulate any legitimate concerns of the county. On the same day the complaint was filed, Goldie sought and obtained an ex parte order allowing service of deposition notices on the defendants. In his declaration in support of that order, counsel for Goldie averred that the depositions were needed to "disclose evidence concerning the factual basis for the ordinance and the need for the ordinance provisions ...." The deposition notice to the county requested production of:

"All police reports, police officers' notes, records, memoranda, documents, microfilms, machine-readable information storage media, books, magazines and other things containing information concerning "a.) permits or licenses or applications therefor or materials submitted in order to obtain or reflecting work done pursuant thereto, of whatever kind or nature, issued to any person or entity regarding the premises located at 4978 Watt Avenue or the business located thereon;

"b.) work done pursuant to said permits or licenses by any person or entity;

"c.) action taken by the county concerning the premises at 4978 Watt Avenue or the business located thereon;

"d.) alleged crimes occurring at or around any picture arcade (as defined by Sacramento County Code Section 9.87.010) after January 1, 1976;

"e.) arrests occurring because of behavior or conditions occurring at or around said picture arcades since January 1, 1976;

"f.) complaints by anyone concerning activity at or around said picture arcades since January 1, 1976.

"g.) arrests or detentions occurring at or because of behavior or conditions occurring at any business location which regularly sells or displays books, magazines or films with sexual content since January 1, 1976.

"h.) Ordinances, rules, regulations, policy statements, directives and plans regarding enforcement of state or county laws involving businesses or persons selling or displaying books, magazines or films with sexual content since January 1, 1976 or operating or maintaining said 'picture arcades' since said date."

The sheriff was requested to produce at his deposition the same materials requested of the county except those pertaining to permits or license applications and in addition:

"All police reports, police officers' notes, records, memoranda, documents, microfilms, machine-readable information storage media, books, magazines, and other things containing information concerning ...

"f.) the investigation, patroling or enforcement of state and local laws regarding those stores identified as 'porno stores' by [the sheriff] in his correspondence to [the county executive] dated November 20, 1981.[ ¹

"g.) 'the aberrations of social misfits who frequent porno shops' as that term is used by [the sheriff] in the said November 20, 1981 correspondence.

"h.) 'criminal investigations of bizarre sex crimes' which revealed 'telltale artifacts found in the suspect's lodgings' that were purchased at 'local porno galleries' as set forth in the said November 20, 1981 correspondence.

"i.) all booths, [panoramas] or peep show devices within which films are shown of any kind."

Both defendants promptly moved for a protective order. The motion was heard on March 5, 1982. The court denied the motion, but delayed the depositions until at least April 1 to give defendants an opportunity to seek a review of the denial. To maintain the status quo and avoid loss to Goldie before the merits of the complaint for injunctive relief could be heard, the court restrained enforcement of the ordinance as to plaintiff until April 16.

Defendants then applied to this court for relief from the denial of their motion for protective order and from the stay of enforcement of the ordinance. After we issued an alternative writ and stayed further discovery proceedings, the trial court extended the stay of enforcement of the ordinance pending our resolution of this writ proceedings.

Defendant's trial court motion for a protective order was based on the claim the proposed inquiries are irrelevant and constitute annoyance and oppression within the meaning of Code of Civil Procedure section 2019, subdivision (b)(1). ² In this court defendants argue Goldie seeks to probe the motivation of the sheriff and the county in proposing and enacting the ordinance. Goldie acknowledges such an inquiry is not permitted (County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 727, 119 Cal.Rptr. 631, 532 P.2d 495; Hadacheck v. Alexander (1915) 169 Cal. 616, 617, 147 P. 259) and eschews any interest in official motivation. Goldie's lawsuit and its related efforts at discovery are predicated on the theory that the regulated activities at its picture arcade are protected by the First Amendment and the ordinance therefore must be narrowly and explicitly drawn and necessary to further a legitimate governmental interest (see People v. Glaze (1980) 27 Cal.3d 841, 846-847, 166 Cal.Rptr. 859, 614 P.2d 291). Goldie therefore seeks to discover evidence to establish the lack of necessity for the ordinance by showing that conduct "offensive, dangerous to others and even unlawful" has not and therefore will not occur in enclosed arcade booths in Sacramento County notwithstanding that it has been judicially determined to be foreseeable in enclosed arcade booths in other locations in this state (see People v. Perrine (1975) 47 Cal.App.3d 252, 258, 120 Cal.Rptr. 640; EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 188-190, 158 Cal.Rptr. 579; DeMott v. Board of Police Comrs. (1981) 122 Cal.App.3d 296, 300-302, 175 Cal.Rptr. 879; see also Ellwest Stereo Theatres, Inc. v. Wenner (9th Cir.1982) 681 F.2d 1243, 1246-1247, upholding a similar Phoenix, Arizona, ordinance).

The Sacramento County ordinance at issue in the underlying action duplicates part of an ordinance which was before the court in EWAP, Inc. v. City of Los Angeles, supra, on an appeal from a preliminary injunction restraining enforcement. It is a content-neutral regulation of the time, place, and manner of protected speech, not a direct abrogation or infringement of First Amendment rights. (EWAP, supra, 97 Cal.App.3d at p. 189, 120 Cal.Rptr. 640; People v. Glaze, supra, 27 Cal.3d at p. 848, 166 Cal.Rptr. 859, 614 P.2d 291; DeMott, supra, at p. 302, 158 Cal.Rptr. 579.) The appropriate test of constitutional fidelity is the one articulated in United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, 1679 . A governmental regulation is sufficiently justified, despite its incidental impact upon First Amendment interests, "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (United States v. O'Brien, supra, 391 U.S. at p. 377, 88 S.Ct. at p. 1679 ; Young v. American Mini Theatres (1976) 427 U.S. 50, 79-80, 96 S.Ct. 2440,...