Harmer v. Tonylyn Productions, Inc.

• Decision Date: 02 March 1972
• Citation: 23 Cal.App.3d 941,100 Cal.Rptr. 576
• Court: California Court of Appeals
• Parties: , 50 A.L.R.3d 959 John HARMER et al., Plaintiffs and Appellants, v. TONYLYN PRODUCTIONS, INC., a California corporation, et al., Defendants and Respondents. Civ. 38114.

Page 576

100 Cal.Rptr. 576

23 Cal.App.3d 941, 50 A.L.R.3d 959

John HARMER et al., Plaintiffs and Appellants, v.TONYLYN PRODUCTIONS, INC., a California corporation, et al., Defendants and Respondents.

Civ. 38114.

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

March 2, 1972.

Rehearing Denied March 30, 1972.

Hearing Denied April 26, 1972.

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

Stanley Fleishman, Inc. by John H. Weston, Hollywood, for defendants and respondents.

ROTH, Presiding Justice.

This appeal is from a judgment based upon a ruling sustaining a demurrer to the First Amended Complaint without leave to amend.Plaintiffs, six individuals, seek an injunction to prevent the exhibition in a closed theatre of a motion picture 'Without a Stitch'(film) and to abate it as a public nuisance.¹

The complaint is directed against defendants(Tonylyn Productions, Loew's California Theatres, Harris, Sher and four Does.)The film involved is a singularly inartful cinematic effort, which, if the factual allegations of the complaint are to be taken as true, as they must be, depicts sexual activity including, but not limited to, sexual intercourse, lesbianism and sodomy.

The complaint is premised on the theories of public nuisance and the provisions of the Red Light Abatement Law (Penal Code, section 11225 et seq.).

We conclude that the judgment must be affirmed.

Plaintiffs do not allege the damages special to themselves required to show that the nuisance, assuming it is such, is a Public nuisance to enable them as private citizens to enjoin or abate it within the meaning of Civil Code, section 3480.Further, we find that the provisions of the Red Light Abatement Law do not extend to motion pictures.

Section 3480 of the Civil Code defines a public nuisance as follows: 'A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.'²

The film involved was shown in a closed theatre.Only those persons could view it who had paid the admission price and who had entered the theatre.Thus, only those members of the community were exposed to the film who voluntarily chose to see it.This is not a case where the community as a whole is forced to submit involuntarily to vile odors (Fisher v. Zumwalt, 128 Cal. 493, 61 P. 82) or air pollution (Wade v. Campbell, 200 Cal.App.2d 54, 19 Cal.Rptr. 173) or to the unwelcome presence of animals (Hayden v. Tucker, 37 Mo. 214.)In the statute's terms, the alleged nuisance at bench did not '* * * affect(s) At the same time an entire community or neighborhood * * *'(Civil Code, § 3480)(emphasis added.)

At bench, only that portion of the public could see the film which voluntarily chose to enter the theatre.The nuisance was not one which is inflicted or imposed on the public.

The Red Light Abatement Law, originally enacted to make houses of prostitution a private as well as public nuisance, was amended in 1969 to include premises used for illegal gambling.³The Red Light Abatement Law has been held by judicial construction to apply to lewd live stage shows and exhibitions.It had not been similarly extended to apply to depictions in closed theatres of those same acts, by still or motion picture, or drawings or any type of exhibits which are limited to closed theatres.If the Legislature had desired or intended by section 11225 of the Penal Code to regulate the showing of pornographic films, pictures or drawings, such subject matter could have been included in section 11225 when it was recently amended in 1969, as it did when it chose to enumerate 'illegal gambling as defined by state law or local ordinance' in that section of the Penal Code.

The judgment is affirmed.

FLEMING, J., concurs.

HERNDON, Associate Justice (dissenting).

I dissent.

In the majority opinion the motion picture 'Without A Stitch' is very briefly described as 'a singularly inartful cinematic effort, which, if the factual allegations of the complaint are to be taken as true, as they must be, depicts sexual activity including, but not limited to, sexual intercourse, lesbianism and sodomy.'

Incriminating though it is, the majority's brief description of the film is euphemistic.The english language does not provide adjective sufficient to describe the utter rottenness of this sordid product of subhuman depravity and greed that portrays every known form of sexual perversion.

The motion picture involved in this case was accurately described by the Court of Common Pleas of Lucas County, Ohio, in a case entitled 'State of Ohio, ex rel. Ewing v. A Motion Picture Film entitled 'Without A Stitch'.'As the basis for its conclusion of law that the motion picture was hard-core pornography, and for its judgment permanently enjoining the exhibition of the film in the State of Ohio, the court made findings in which it described the motion picture as follows:

'The movie specifically showed a simulated sexual relation between a seventeen and one-half year old girl and a treating physician; an attempted act of sexual intercourse with a young man which was incomplete.That the physician's sexual intercourse as well as suggested cunnilingus and oral sodomy was purported to be a therapeutic treatment.That through the media of a holiday trip with background travelogue type photographs, the sexual morals of the various countries were attempted to be shown through the means of various normal, abnormal, and unlawful sexual approaches.That these involved an act of anal copulation involving the subject girl and a male companion as well as vaginal copulation between the subject girl and another male; sadistic-masochistic, sexual relationships between this subject girl and an adult male companion; the display of a dildo to this girl; this girl nude with a nude male and another nude female with the subject girl's sexual parts over the male's genitals and the other female's sexual parts over the male's face, and the girls kissing each other; that this subject girl was also induced to make and participate in the making of a pornographic movie.There was also a scene suggesting lesbian activity.

'That in addition to the pornography there were a number of scenes involving total or partial nudity resulting in visual creation of scenes leading to acts of malefemale copulation, cunnilingus, sodomy, fellatio, lesbian relations and other sex play with the inference that these were a benefit, therapeutically, to her alleged sexual frigidity.'

The judgment of the Court of Common Pleas permanently enjoining the exhibition of the film in the State of Ohio was affirmed by the Court of Appeals of Ohio in State ex rel. Ewing v. 'Without A Stitch,'28 Ohio App.2d 107, 276 N.E.2d 655.In that excellent decision the court reviews all of the recent decisions of the United States Supreme Court on the subject of obscenity including Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498;Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793;Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31;Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542;United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813;andUnited States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822.Following that review the Ohio court declares its conclusion with respect to the film 'Without A Stitch' as follows: 'By any test, medium-core, hard-core, as if res ipsa loquitur, obscentity per se, patently obscene or screaming obscenity, the film was obscene.'(276 N.E.2d p. 658)

The Film 'Without A Stitch' Is Hard-Core Pornography As Defined In Section 311, Subdivision (a), Of The Penal Code And Is Beyond Constitutional Protection.

Subdivision (a) of section 311 of the California Penal Code provides as follows: 'As used in this chapter: (a)'Obscene matter' means matter, taken as a whole, the predominant appeal of which to the average person, applying contempoary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.'

In Landau v. Fording, 345 Cal.App. 820, 54 Cal.Rptr. 177, a hearing was denied by the California Supreme Court and the judgment of the Court of Appeal was affirmed by the United States Supreme Court after the granting of certiorari (388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317).The well-considered opinion authored by Justice Wakefield Taylor for the Court of Appeal in that case affirms a judgment of the trial court which held that a film entitled 'Un Chant d'Amour' was hard-core pornography within the meaning of Penal Code section 311, subdivision (a).Since that decision cites and discusses all of the most pertinent decisions of the United States Supreme Court, I adopt its content by reference in the interest of economy.

With respect to the film involved in Landau v. Fording, supra, 345 Cal.App.2d 820, at page 829, 54 Cal.Rptr. 177, at page 183, the court commented: 'In our opinion the production does nothing more than depict a number of disjointed scenes treating sex in a shocking, morbid and shameful manner and is devoid of artistic merit.'A comparison of the film described in Landau with the film 'Without A Stitch' involved in the case at bench immediately leads to the conclusion that we are here dealing with a product even more shocking, morbid and shameful, and one which possesses no semblance of any redeeming attribute.

The Exhibition Of The Pornographic Motion Picture 'Without A Stitch' Involved The Commission of An Infamous Crime And Created A Public Nuisance.

Obscene or indecent exhibitions of such a...