Manchel v. Los Angeles County

• Decision Date: 10 October 1966
• Citation: 245 Cal.App.2d 501,54 Cal.Rptr. 53
• Court: California Court of Appeals Court of Appeals
• Parties: Julius MANCHEL and Norman Sogolofsky, Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES, and Peter J. Pitchess, in his capacity as Sheriff of the County of Los Angeles, Defendants and Appellants. Civ. 30082. Division 1, California

Page 53

54 Cal.Rptr. 53

245 Cal.App.2d 501

Julius MANCHEL and Norman Sogolofsky, Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES, and Peter J. Pitchess, in his capacity as Sheriff of the County of Los Angeles, Defendants and Appellants.

Civ. 30082.

District Court of Appeal, Second District,

Division 1, California.

Oct. 10, 1966.

Rehearing Denied Oct. 31, 1966.

Hearing Denied Dec. 7, 1966.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Assistant County Counsel, for appellants.

Burton Marks, Green, Simke & Lasher and Stuart A. Simke, Beverly Hills, for respondents.

FOURT, Justice.

Plaintiff filed a complaint for declaratory and injunctive relief seeking a determination as to whether the card game of panguingue is one of skill or chance and, if a game of skill, an injunction against the defendants from arresting plaintiffs for playing panguingue. A trial was had before the court, judgment was entered declaring panguingue (played according to the rules established by the parties) was a game of skill and the injunction was issued against the defendants.

The matter was presented to the court on the basis of a first amended complaint as stipulated to in the joint pre-trial statement of the parties. The essential portions of the complaint alleged that the county had enacted an ordinance dealing with the criminal sanctions imposed upon persons permitting the playing of, or actually playing, certain card games within Los Angeles County; ¹ that the plaintiffs had been, and still were desirous of playing the game of panguingue for money within an unincorporated portion of the county; that a dispute had arisen, and an actual controversy existed between the parties, in that plaintiffs contended that panguingue is a game of skill and defendants contended it is not a game of skill but one of chance and therefore that to play the game is a crime under this ordinance; that the sheriff, through his agents, and so forth, threatened and continued to threaten to arrest plaintiffs if they played, or permitted the playing of, panguingue for money and that because of these threats of arrest, plaintiffs sustained, and would continue to sustain, great and irreparable injury, by being deprived of their right to play panguingue for money for their pleasure, except under threat and opprobrium of arrest and that the injury sustained would make damages inadequate. The plaintiffs prayed for a declaration that panguingue is not a game of chance; that the playing of panguingue for money is not a crime in violation of said ordinance; and for an injunction restraining defendants from threatening to arrest, or arresting these plaintiffs, or from enforcing the ordinance against them. There is not now, nor has there been, any contention that the ordinance involved is invalid.

Defendants answered and, in effect, stated that the game of panguingue, as played by plaintiffs, is not a game of skill but is a game of chance as the same is set forth in said ordinance and that plaintiffs therefore are not entitled to any relief.

The cause came on for trial before the court, a jury was waived and extensive testimony was presented by the plaintiffs to the effect that, according to the rules established for playing panguingue, said game, in the opinion of plaintiffs' witnesses, is a game of skill. Defendants' evidence was to the contrary. Thereafter, the court rendered its findings of fact, which, insofar as here pertinent, set forth that the plaintiffs have been and still are desirous of playing the game of panguingue for money within the unincorporated portion of Los Angeles County and that the sheriff has threatened and continues to threaten to arrest the plaintiffs if they play panguingue for money; that an actual controversy does exist between plaintiffs and defendants as to whether panguingue is a game of skill or a game of chance. The court further found that inherent in the card game of panguingue, as defined by the rules of the game introduced into evidence is '* * * a continually recurring necessity in the play of the hand to make decisions, and a scope for deductive analysis, psychology, alertness and mental ascendancy over one's opponents, which, considered together, will ordinarily be determinative of the outcome of the game * * * (and) * * * the card game of panguingue as defined by the rules of the game * * * requires knowledge, understanding, study of said rules, and experience in the use thereof and play of the game, and possession thereof gives such a predominate benefit over a person who does not possess the same, that the result is predictable and practically inevitable'; that the game therefore is one of skill and not of chance and that plaintiffs were entitled to a judgment as prayed for.

The judgment decreed that the complaint stated a valid cause of action; that Section 21 of Article II of the ordinance only prohibits games of chance and not those of skill; that the card game of panguingue, as defined by the rules of the game, is a game of skill and not a game of chance within the meaning of Section 21, Article II of the ordinance and that the playing or permitting the playing of panguingue for money is not a crime. The defendants were permanently enjoined and restrained from threatening to arrest or from arresting plaintiffs for playing panguingue for money. Defendants filed a timely notice of appeal from the judgment.

Although appellants have raised several assignments of error respecting evidentiary matters, we shall first deal with their contention that the complaint fails to state a cause of action. It is apparent that this last mentioned contention is being raised for the first time on appeal. However, failure to demur to a complaint for failing to state facts sufficient to constitute a cause of action does not constitute a waiver and may properly be raised for the first time on appeal. (2 Witkin, Calif. Procedure, Pleading, § 487, p. 1474; Wilson v. Sharp, 42 Cal.2d 675, 677, 268 P.2d 1062; Roberts v. Roberts, 241 Cal.App.2d 93, 98, ^*) 50 Cal.Rptr. 408.

As stated in 43 C.J.S. Injunctions, § 156, pages 768--771, '(t)he general rule, sometimes by virtue of statutory provisions, is that an injunction will not be granted to stay criminal or quasi-criminal proceedings, whether the prosecution is for the violation of the common law or the infraction of statutes or municipal ordinances, or to stay the enforcement of orders of a board or commission. This general rule is based, in addition to other considerations, on the principle that equity is concerned only with the protection of civil and property rights, and is intended to supplement, and not usurp, the functions of the courts of law, and on the fact that the party has an adequate remedy at law by establishing as a defense to the prosecution that he did not commit the act charged, or that the statute or ordinance on which the prosecution is based is invalid, and, in case of conviction by taking an appeal.

'* * * The rule applies * * * to prosecutions which are merely threatened or anticipated as well as to those which have already been commenced, * * *

'* * * It is not a ground for injunctive relief that the prosecuting officer has erroneously construed the statute on which the prosecution is based so as to include the act or acts which it is the purpose of the prosecution to punish.' In Fairchild v. Brock, 88 Cal.App.2d 425, 429, 199 P.2d 9, 11, the court quotes the general rule, as stated in California Jurisprudence, to be that "an injunction will not be granted to protect a person from prosecution for the alleged commission of a criminal offense on a showing that he is not guilty of such offense or that the law does not apply to him. The Court having jurisdiction over criminal offenses is the forum in which such questions of fact must be determined. * * *" And in Agnew v. City of Los Angeles, 190 Cal.App.2d 820, 828, 12 Cal.Rptr. 507, 513, the court stated: 'The challenged provisions of the municipal code are presumed to be valid (citation), and enforcement is presumed to be lawful. (Citation.) An injunction will not issue to prevent a legislative act by a municipal corporation unless a showing of invalidity is made. (Citations.)'

The Supreme Court stated in Financial Indem. Co. v. Superior Court, 45 Cal.2d 395, 402, 289 P.2d 233, 238: 'Section 3423, subdivision 4, of the Civil Code and also section 526, subdivision 4, of the Code of Civil Procedure provide that an injunction cannot be granted 'to prevent the execution of a public statute, by officers of the law, for the public benefit.' These sections do not bar judicial action where the invalidity of the statute under which he is acting is shown (citation) or when the officer exceeds his powers. (Citation.)'

'A court acts in excess of its jurisdiction if it attempts to enjoin the enactment or enforcement of a valid public statute or ordinance.' (City of Los Angeles v. Superior Court, 51 Cal.2d 423, 430, 333 P.2d 745, 748.)

Respondents have failed to allege throughout their pleadings any basis upon which the trial court could grant an injunction. They do not contend that the ordinance is unconstitutional, or that the enforcement of this statute would involve the invasion of property rights which would result in irreparable injury. Respondents allege that they have sustained irreparable injury by being deprived of their right to play panguingue for money for their pleasure. Certainly this so-called irreparable injury could not be classified as a property right. Nor is the threat of arrest under the circumstances a proper basis to permit a court to grant injunctive relief. The court made no finding that the ordinance was unconstitutional or that enforcement would constitute an invasion of plaintiffs' property rights resulting in irreparable injury. The respondents failed to allege facts sufficient legally to afford them injunctive relief against these appellants and the court erred...