People ex rel. Busch v. Projection Room Theater

Citation130 Cal.Rptr. 328,17 Cal.3d 42
CourtCalifornia Supreme Court
Decision Date01 June 1976
Parties, 550 P.2d 600 * The PEOPLE ex rel. Joseph P. BUSCH, as District Attorney, etc., et al., Plaintiffs and Appellants, v. PROJECTION ROOM THEATER et al., Defendants and Respondents. (And 4 other cases.) ** L.A. 30432.

Joseph P. Busch and John K. Van De Kamp, Dist. Attys., Harry B. Sondheim, Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., Burt Pines, City Atty., and Edward A. Schlotman, Deputy City Atty., for plaintiffs and appellants.

Fleishman, McDaniel, Brown & Weston, Fleishman, Brown, Weston & Rohde, Los Angeles, David M. Brown, Hollywood, Stephen F. Rohde, Harrison W. Hertzberg and Joshua Kaplan, Los Angeles, for defendants and respondents.

The opinions filed herein on March 4, 1976 in the above entitled proceedings are ordered vacated. The opinions as set forth in the attachment hereto are ordered filed in lieu thereof.


In these consolidated cases we consider whether or not a civil action brought by law enforcement officers to restrain the exhibition of obscene books and films states a cause of action for relief under the public nuisance laws of this state. Plaintiffs, who are law enforcement officers acting on behalf of both the City and the County of Los Angeles, seek injunctive and other relief against defendants who, according to the five separate complaints filed herein, operate book stores or motion picture theaters in Los Anglees which exhibit magazines or films that are obscene under the laws of this state. While the five complaints are directed at different defendants and vary somewhat in the specifics of their allegations, the causes of action alleged in each are sufficiently similar in the facts alleged and in the charging allegations to permit us to consider them together.

For convenience we examine the pleadings in the case involving Projection Room Theater finding that our conclusions in that action are dispositive of the issues raised in all of the actions. Plaintiffs assert that defendants' operations constitute public nuisances which are subject to regulation and abatement either pursuant to the general public nuisance statutes (Civ.Code, §§ 3479, 3480; Pen.Code, §§ 370, 371), or under the Red Light Abatement Law (Pen.Code, § 11225 et seq.). Defendants dispute the contention. We will conclude that although the Red Light Abatement Law was not intended to apply to the exhibition of obscene magazines or films, nevertheless the complaint herein does state a cause of action under the general public nuisance statutes.

The complaint herein alleges the following facts: Defendants own or operate specified premises in Los Angeles County in which acts of 'lewdness' are taking place, namely, the 'past and continuing exhibition' of magazines and films 'all of which are lewd and obscene under the laws of this State, and therefore did and do constitute a nuisance under the laws of this State . . ..' It is further alleged that the magazines and films so exhibited by defendants have, as their dominant theme, an 'appeal to the prurient interest in sex,' that they are 'patently offensive because they affront contemporary community standards relating to the description or representation of sexual matters,' and that they are 'utterly without social value . . ..'

According to the complaint, the maintenance of these premises constitutes a public nuisance which will continue unless restrained and enjoined. Plaintiffs attached to the complaint numerous exhibits consisting of police reports summarizing the obscene nature of the magazines and films exhibited by defendants. The complaint sought multiple relief including: (1) preliminary injunction restraining defendants from conducting and maintaining the premises for the purposes described above; (2) abatement of the premises as a public nuisance under sections 11230--11231 of the Penal Code (Red Light Abatement Law); (3) permanent injunction against defendants and their agents, officers and employees from operating the premises as a public nuisance; (4) closure of the premises for one year; (5) removal and sale of the fixtures and movable property thereon used in conducting the nuisance; (6) use of the proceeds from the sale to pay fees and costs in connection with the closure; and (7) other appropriate relief.

Defendants filed general demurrers to each complaint, asserting that plaintiffs failed to state a cause of action either under the public nuisance statutes or the Red Light Abatement Law. The trial court, considering itself bound by the decision in Harmer v. Tonylyn Productions, Inc. (1972) 23 Cal.App.3d 941, 100 Cal.Rptr. 576, sustained the demurrers without leave to amend and entered judgments of dismissal. Plaintiffs appeal.

The scope of our inquiry herein is considerably narrowed by application of the familiar rule, acknowledged by defendants, that 'a general demurrer admits the truth of all material factual allegations in the complaint' (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 89, 468 P.2d 216, 217), and we may accordingly assume that all materials in question, both magazines and films, are obscene within the meaning of Penal Code section 311, as alleged.

1. Public Nuisance Statutes

We first consider whether or not the allegations of the complaint, summarized above, sufficiently describe the existence of a public nuisance and note preliminarily the substantial identity of definitions appearing in Penal Code sections 370 and 371, and Civil Code sections 3479 and 3480, taken in conjunction. Section 370 of the Penal Code defines a public nuisance as '(a) nything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, . . .' (Italics added.) When analyzed, section 370 reveals the following: the Proscribed act may be anything which alternatively is injurious to health or is indecent, or offensive to the senses; the Results of the act must interfere with the comfortable enjoyment of life or property; and Those affected by the act may be an entire neighborhood or a considerable number of persons, and as amplified by Penal Code section 371 the extent of the annoyance or damage on the affected individuals may be unequal.

Is the exhibition of obscene magazines and films a form of activity which may be characterized as 'indecent' or 'offensive to the senses' interfering with the comfortable enjoyment of life of a 'considerable number of persons' within the contemplation of Penal Code section 370? We conclude that such exhibitions may fairly be deemed such conduct, and we find convincing support for such conclusion from applicable cases in this and other jurisdictions.

In Weis v. Superior Court (1916) 30 Cal.App. 730, 159 P. 464, the Court of Appeal ruled that an attraction known as the 'Sultan's Harem,' conducted at the Panama-California International Exposition, constituted a public nuisance subject to abatement. This exhibition assertedly involved the 'indecent and offensive' exposure to members of the public of the 'naked persons and private parts thereof' of various female employees. Although such conduct also constituted the crime of indecent exposure (Pen.Code, § 311), nevertheless the Weis court held that '(w)here, however, the threatened acts, if committed, in addition to being an indictable offense, will constitute a public nuisance, courts of equity are vested with jurisdiction to interpose their injunctive process to prevent injury which will result from the maintenance thereof. (Citations.)' (Weis at p. 732, 159 P. at p. 464.) Furthermore, the court, quoting from Wood on Nuisances (§ 68), stated that "A public exhibition of any kind that tends to the corruption of morals, to a disturbance of the peace, or of the general good order and welfare of society, is a public nuisance. Under this head are included . . . obscene pictures, and any and all exhibitions, the natural tendency of which is to pander to vicious . . . and disorderly members of society." (Ibid., italics added.)

The foregoing Weis reasoning was approved by us more than 30 years ago in People v. Lim (1941) 18 Cal.2d 872, 879, 118 P.2d 472. Lim involved the propriety of an injunction against gambling activities on the ground that they constituted a public nuisance. We upheld in Lim the use of the public nuisance injunctive remedy against gambling activity which, it was alleged, disturbed the public peace and corrupted public morals. In Lim we carefully traced the history of public nuisance actions and noted that 'The courts have . . . refused to grant injunctions on behalf of the state except where the objectionable activity can be brought within the terms of the statutory definition of public nuisance.' (P. 879, 118 P.2d p. 476.) Although, as we noted, such activities as gambling or usury do not fit comfortably within the above quoted statutory definition of public nuisance, in Lim we acknowledged that an 'indecent' exhibition such as was involved in Weis could be enjoined despite the concurrent application of the criminal statutes, since such exhibitions if determined to be indecent are expressly declared by section 370 to be public nuisances.

While carefully noting that Weis involved live dance performances, we discern no satisfactory distinction which would justify differential treatment of the pictorial representations in obscene magazines and films on the one hand, and 'live' performances on the other. The presentation of either may fairly be described as 'indecent' and equally injurious to public morals.

Defendants have insisted that only those activities may constitute public nuisances which are offensive to the five senses of hearing, sight, touch, smell, and taste. It is claimed that...

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