Oliver v. County of Los Angeles

• Decision Date: 30 September 1998
• Docket Number: No. B113027,B113027
• Citation: 78 Cal.Rptr.2d 641,66 Cal.App.4th 1397
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 7566, 98 Daily Journal D.A.R. 10,465 Vincent OLIVER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent; Helix Information Services, Inc., et al., Interveners and Appellants.

Page 641

78 Cal.Rptr.2d 641

66 Cal.App.4th 1397, 98 Cal. Daily Op. Serv. 7566,

98 Daily Journal D.A.R. 10,465

Vincent OLIVER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent Helix Information Services, Inc., et al., Interveners and Appellants.

No. B113027.

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

Sept. 30, 1998.

Rehearing Denied Oct. 30, 1998.

Review Denied Dec. 22, 1998. ^*

[66 Cal.App.4th 1400] David E. Kronemyer, Burbank, for Plaintiff and Appellant.

Dressler Rein Evans & Sestanovich, Thomas W. Dressler, and Scott J. Rein, Los Angeles, for Interveners and Appellants.

De Witt W. Clinton, County Counsel, S. Robert Ambrose, Assistant County Counsel, Kevin C. Brazile, Principal Deputy County Counsel; Greines, Martin, Stein & Richland, Martin Stein, and Barry M. Wolf, Beverly Hills, for Defendant and Respondent.

CROSKEY, Associate Justice.

Plaintiff Vincent Oliver ("plaintiff") and plaintiffs in intervention Helix Information Services, Inc. and Michael Hesse ("Helix" and "Hesse," respectively, or "intervenors") appeal from a summary judgment entered in favor of defendant County of Los Angeles ("the County"). In deciding the various motions for summary judgment filed by the parties, the trial court determined that a card game called "Newjack," which was invented by plaintiff, is a form of another card game called "2l." ¹ Penal Code section 330 prohibits the playing of 2l for money. ² Plaintiff and the intervenors had filed complaints seeking declaratory and injunctive relief which would permit them to market, to gambling businesses, the Newjack game. The trial court denied such relief and ruled Newjack cannot be played legally as a wagering game.

"[Newjack] is not one of the games specifically mentioned in section 330. The question of its legality or illegality thus depends upon whether it qualifies as either a banking or a percentage game. This is an issue of law. [Citations.]" (Sullivan v. Fox (1987) 189 Cal.App.3d 673, 678, 235 Cal.Rptr. 5.)

We find the trial court was correct when it concluded Newjack is prohibited by section 330. While the rules of Newjack demonstrate it is not a percentage game, the rules also show the game has the potential of being played as a banking game. We therefore affirm the summary judgment entered in favor of the County. ³

BACKGROUND OF THE CASE

The operative complaints of plaintiff and the intervenors collectively allege the following matters. Plaintiff is the inventor of Newjack. He and Helix own rights to commercially distribute the game. Hesse is the co-owner of Newjack and co-holder of patent rights to it. At least two cities in southern California (Bell and Gardena) have given their permission to have Newjack played at gambling casinos therein because the cities determined the rules of Newjack do not violate section 330. Thus, Newjack began to be played in card clubs. Thereafter, opinion letters were issued by County Counsel's office and the state Attorney General's office which state Newjack violates section 330. The County's sheriff's department obtained a search warrant to search businesses where Newjack was being played and seize objects there. In the face of this activity, playing of Newjack has ceased. This has disrupted plaintiff's and intervenors' rights to market and exploit Newjack and they have suffered negative economic consequences. The respective complaints pray for declaratory relief that playing Newjack does not violate section 330, as well as temporary, preliminary and permanent injunctive relief.

Plaintiff, Helix, and the County each filed a motion for summary judgment. At the hearing on the respective motions, the trial court denied plaintiff's and Helix's motions and granted the County's motion. Although the court determined that Newjack is not a percentage or banking game, it concluded Newjack violates section 330 because the rules of Newjack are "sufficiently similar to the prohibited game of 2l" to make the distinctions between the two games inconsequential. Thereafter, judgment in favor of the County was signed and filed and plaintiff and the intervenors filed timely appeals from such judgment.

DISCUSSION

l. Standard of Review

We conduct a de novo review of this matter. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474, 261 Cal.Rptr. 735.) In doing so, we apply the same rules the trial court was required to apply in deciding the County's motion for summary judgment. Those rules are as follows. As a defendant moving party, the County had the burden of presenting evidence which shows that plaintiff's and the intervenors' causes of action have no merit. The County could do this with evidence sufficient to show that (l ) one or more elements of each cause of action cannot be established, or (2) there are complete defenses to those causes of action. (Code Civ. Proc. § 437c, subd. (o)(2).) If the County accomplished this, then the burden shifted to plaintiff and the intervenors to show that, contrary to the County's presentation, a triable issue of material fact actually exists as to those causes of action or defenses. (Ibid.) Thus, section 437c, subdivision (c), states that summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Because a summary judgment denies the adverse party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865, 247 Cal.Rptr. 504.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or in inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865-866, 247 Cal.Rptr. 504.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal theory applicable to this case, whether or not that theory was adopted by the trial court, and whether it was raised by the County in the trial court or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481, 35 Cal.Rptr.2d 698.)

The facts of this case are straightforward. They involve the published rules of Newjack. As noted above, the question whether Newjack is prohibited by section 330 depends on whether the game qualifies as either a banking or a percentage game, and this is an issue of law. (Sullivan v. Fox, supra, 189 Cal.App.3d at p. 678, 235 Cal.Rptr. 5 ("Sullivan ").)

2. Types of Games Prohibited by Section 330

"Section 330 embodies several differing approaches to gambling regulation. Those games specifically mentioned are banned outright. Rather than undertaking numerous piecemeal amendments every time a new game is deemed worthy of prohibition, the Legislature adopted the 'banking or percentage game' test as a flexible means of reaching two evils perceived by the Legislature." (Sullivan, supra, 189 Cal.App.3d at p. 679, 235 Cal.Rptr. 5.) "[A] card game played for money not specifically listed under section 330 and not played as a banking or percentage game is not prohibited. [Citations.]" (Tibbetts v. Van de Kamp (1990) 222 Cal.App.3d 389, 393, 271 Cal.Rptr. 792.)

"Banking game has come to have a fixed and accepted meaning: the 'house' or 'bank' is a participant in the game, taking on all comers, paying all winners, and collecting from all losers. [Citations.]" (Sullivan, supra, 189 Cal.App.3d at p. 678, 235 Cal.Rptr. 5.) "[T]he house is actually involved in play, its status as the ultimate source and repository of funds dwarfing that of all other participants in the game." (Id. at p. 679, 235 Cal.Rptr. 5.)

"[A percentage game] finds the house in a more passive role. Where the house is not directly participating in game play, it can still be involved if it collects a percentage from the game. This percentage may be computed from the amount of bets made, winnings collected, or the amount of money changing hands. The percentage may be assessed collectively or individually. Regardless of the precise formula employed, the house benefits. The house has no interest in the outcome of play, but it is far from disinterested in the amount of play. It is in the enviable position of obtaining profit without incurring risk of loss from the actual play. Its actual participation is nil, thereby distinguishing it from the banking game situation, but it nevertheless gains.... [p] We construe the language in section 330 referring to percentage game as encompassing any game of chance from which the house collects money calculated as a portion of wagers made or sums won in play, exclusive of charges or fees for use of space and facilities. [Citation.]" (Sullivan, supra, 189 Cal.App.3d at p. 679, 235 Cal.Rptr. 5.)

Section 330 was enacted in 1872. According to expert testimony in Tibbetts v. Van de Kamp, supra, 222 Cal.App.3d at p. 393, 271 Cal.Rptr. 792, "the common thread among the games specifically listed in section 330 at the time of its enactment was that they were casino games, i.e., banking or percentage games, which were deemed especially 'suspect' because, among other reasons, the house had an advantage and limitless funds." "Apparently, the evil sought to be controlled by section 330 is the house having an interest in the game, whether through acting as banker or taking a percentage of the wagers. [Citations.]" (Walker v. Meehan (1987) 194 Cal.App.3d 1290, 1296, 240 Cal.Rptr. 171.)

3. Newjack's Status as a Banking Game or Percentage Game

a. General Playing Rules for Newjack

According to the published rules for Newjack, in each hand of the game there...