Demott v. Board of Police Commissioners

• Decision Date: 31 July 1981
• Citation: 175 Cal.Rptr. 879,122 Cal.App.3d 296
• Court: California Court of Appeals Court of Appeals
• Parties: John DeMOTT, et al., Plaintiffs and Respondents. v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES, et al., Defendants and Appellants. Civ. 61142.

Page 879

175 Cal.Rptr. 879

122 Cal.App.3d 296

John DeMOTT, et al., Plaintiffs and Respondents. v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES, et al., Defendants and Appellants.

Civ. 61142.

Court of Appeal, Second District, Division 1, California.

July 31, 1981.

Hearing Denied October 28, 1981.

Burt Pines, City Atty., Frederick N. Merkin, Senior Asst. City Atty., and Leslie E. Brown, Deputy City Atty., for defendants and appellants.

David M. Brown, G. Randall Garrou, and Brown, Weston & Sarno, Beverly Hills, for plaintiffs and respondents.

WADDINGTON, Associate Justice. ^*

Appellant's Board of Police Commissioners, Los Angeles Police Department and Los Angeles City Attorney, appeal from an injunction granted in favor of respondent John DeMott, Stephen Footlik, Le Sex Shoppe Private Film Club, an unincorporated association and EWAP, Inc., a California Corporation. The order prevents enforcement of a city ordinance regulating the use of picture arcades operated by respondent at several locations. The order is appealable; Code of Civil Procedure 904.1; Capitol Records Inc. v. Erickson (1969) 2 Cal.App.3d 526, 82 Cal.Rptr. 798.

Respondent EWAP is a California corporation which owns and operates retail book stores at various locations. A portion of the premises is leased to respondent Footlik, who operates picture arcades. Both respondents are licensed to operate these picture arcades by the Board of Police Commissioners. In January 1980, city police officers informed employees of respondent EWAP they would commence enforcement of Los Angeles Municipal Code section 103.101, subdivision (i) unless the arcade premises were brought into compliance with the requirement that the interior of the booths which comprised the picture arcade were visible and unenclosed. ¹ Shortly, thereafter, respondents formed a voluntary unincorporated association which adopted articles of associations and bylaws. The association bylaws recite that the physical facilities on the premises of respondents, i. e., the "picture arcade" were owned by the new private association; that membership in the association would be required as a condition for viewing films in the picture arcade. To enroll as a member, one must pay a $1.00 fee to the clerk in the book store, identify oneself, furnish proof of age and subscribe to the basic philosophy of the association.

The picture arcades described above are fully enclosed booths. Admittance is gained upon display of club membership, payment of $1.00 fee, deposit of a coin activating the film and signing the statement of philosophy. The trial court concluded that respondents were not required to comply with the ordinance requiring unenclosed booths because their facilities were not offered to the public. Enforcement of the ordinance was enjoined.

Appellants contend the trial court erred by failing to apply the proper legal standard for issuance of injunctions, thereby abusing its discretion.

I

The general rule applicable to complaints seeking injunctive relief is stated in Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889: "The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. (Citations.) Thus, the court examines all of the material before it in order to consider 'whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; ...' (Citations.) In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. (Citations.)" (See also People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 408, 166 Cal.Rptr. 519.) The trial court, therefore, must decide which party will be injured more by an adverse ruling on an application for a preliminary injunction. That decision, however, " 'rests in the sound discretion of the trial court, and ... may not be interfered with on appeal, except for an abuse of discretion.' " (Continental Baking Co. v. Katz, supra 68 Cal.2d at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889.) Such abuse of discretion must be clearly shown. (People v. Columbia Research Corp. (1977) 71 Cal.App.3d 607, 139 Cal.Rptr. 517, cert. den., 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191.) We conclude that appellants have established the required showing.

The use of injunctions to forestall criminal prosecution has evolved from its initial purpose as an equitable remedy in tort and contract actions. Historically, the injunction served the interests of those who sought immediate judicial intervention against threatened injury. (Witkin, Cal. Procedure (2d Ed., 1974) Provisional Remedies, § 76.) In more recent times, the injunctive process is invoked to abort threatened prosecution of criminal law, typically a law with First Amendment overtones. ² This is true despite the language of Code of Civil Procedure 526, which forbids issuance of an injunction to prevent the execution of a public statute by an officer of the law for the public benefit. In the City of Santa Monica v. Superior Court (1964) 231 Cal.App.2d 223, 226, 41 Cal.Rptr. 824, the court said: "However, we regard it as beyond question that trial courts should be extremely cautious, and even hesitant and reluctant, when asked to enjoin law enforcement officials from enforcing an ordinance obviously approved and adopted by duly elected representatives of the people for the purpose of promoting and protecting public morality prior to a trial on the merits. With all presumptions favoring the validity and constitutionality of the enactments of various legislative bodies, it should be only under extraordinary circumstances that anyone challenging the validity of such a law should immediately be granted the ultimate relief he seeks prior to any trial on the merits." (See, also 7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 46, 115 Cal.Rptr. 746.)

Despite this cautionary signal, other courts have more readily invoked the injunctive remedy. (Startrack, Inc. v. County of Los Angeles (1976) 65 Cal.App.3d 451, 453, 135 Cal.Rptr. 283; RenbaLil v. Kortz (1976) 65 Cal.App.3d 467, 135 Cal.Rptr. 287.) Inconsistent results probably occur because the appellate court must review the trial court's decision to determine which side would probably prevail on the merits of the case and which side would suffer injury. When the trial court invokes its discretion in resolving this issue, the appellate court is limited in its determination to whether the court abused its discretion. If the record supports the decision of the trial court, this court should affirm.

In the instant case, however, the trial court was partially limited in exercising its discretionary power by a previous appellate decision directly construing the questioned ordinance. In EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 189, 158 Cal.Rptr. 579, the court said: "It is undisputed that content-neutral reasonable regulations of the time, place and manner of protected speech are permitted by the First Amendment where such regulations are necessary to further significant governmental interests. (See Young v. American Mini Theatres (1976) 427 U.S. 50, 63, fn. 18 and 84 (96 S.Ct. 2440, 2448, fn. 18 and 84, 49 L.Ed.2d 310).) ... '(This) regulation is sufficiently justified 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 (1968) 391 U.S. 367, 377 (88 S.Ct. 1673, 1679, 20 L.Ed.2d 672).) The prohibition of enclosed or concealed booths in picture arcades easily passes this test. The city has the constitutional power to reasonably regulate and license arcades for purposes of health, safety and public welfare." (Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 166, 93 Cal.Rptr. 820; see also Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281.)

As was stated in People v. Perrine (1975) 47 Cal.App.3d 252, 258, 120 Cal.Rptr. 640: "A picture arcade is a business, carried on in a place which the public generally is invited to enter and use. Since it is a place of entertainment, its patrons are not expected to enter with the solemnity of a business visitor at a mercantile establishment. Ordinarily those entering a picture arcade are seeking amusement, relaxation or excitement, possibly sexual stimulation or gratification, depending on the taste or mood of the individual and the kind of pictures exhibited. Among such visitors it is foreseeable that some will be predisposed to conduct which is offensive, dangerous to others and even unlawful. The potential for misuse of the premises, for law violations, and for bodily harm to law-abiding patrons, is obvious, as is the concomitant need for (deterring such conduct)."

The court in EWAP upheld the validity of the ordinance in question here stating: "The city has a substantial interest in preventing the kind of dangerous or unlawful conduct, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed. The prohibition of such booths furthers the city's interest in deterring and detecting the use of the premises for such unlawful activity." ³ (EWAP, Inc v. City of Los Angeles, supra, 497 Cal.App.3d 190, 158 Cal.Rptr. 579.)

In determining whether to issue the injunction against enforcement of the ordinance, the trial court was bound by the EWAP decision which approved the facial validity of the ordinance. To...