People ex rel. Camil v. Buena Vista Cinema

• Decision Date: 21 April 1976
• Citation: 129 Cal.Rptr. 315,57 Cal.App.3d 497
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California ex rel. William CAMIL, City Attorney of the City of Duarte, California, Plaintiff and Appellant, v. BUENA VISTA CINEMA and Stephen E. Tillander dba Buena Vista Cinema, Defendants and Respondents. CITY OF DUARTE, a Municipal Corporation and James J. Caughlin, Plaintiffs and Appellants, v. BUENA VISTA CINEMA et al., etc., Defendants and Respondents. Civ. 46918, 46919.

Page 315

129 Cal.Rptr. 315

57 Cal.App.3d 497

PEOPLE of the State of California ex rel. William CAMIL, City Attorney of the City of Duarte, California, Plaintiff and Appellant, v.BUENA VISTA CINEMA and Stephen E. Tillander dba Buena Vista Cinema, Defendants and Respondents.

CITY OF DUARTE, a Municipal Corporation and James J. Caughlin, Plaintiffs and Appellants, v.BUENA VISTA CINEMA et al., etc., Defendants and Respondents.

Civ. 46918, 46919.

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

April 21, 1976.

Hearing denied June 17, 1976.

William Camil, Santa Fe Springs, James J. Clancy, Sun Valley, for plaintiffs and appellants.

Jonathan Bailey Lappen, Lappen, Abelson & Harris, Beverly Hills, for defendants and respondents.

COMPTON, Associate Justice.

The City of Duarte(plaintiff)¹ instituted two separate actions in the Superior Court of Los Angeles County to abate a public nuisance.Both actions were directed against Buena Vista Cinema, ² a motion picture theater situated in the City of Duarte, where, according to the allegations of the complaint, obscene motion pictures were continuously exhibited.

Case No. C107347 was based upon provisions of a Duarte City Ordinance and a resolution of the City Council adopted pursuant thereto.Case No. C107771 was based upon the California Red Light Abatement Act(Pen.Code, §§ 11225 et seq) and the general public nuisance statutes(Civ.Code, §§ 3479,3480).In both actions the plaintiff moved for a temporary injunction pending trial.

The two cases were duly consolidated.The trial court sustained a demurrer without leave to amend and dismissed case No. C107771.In case No. C107347, the court sustained a demurrer With leave to amend and denied the motion for a preliminary injunction.No order of dismissal was entered.

Plaintiff noticed an appeal from the judgment of dismissal in case No. C107771 and from the order sustaining the demurrer and denying the motion for a preliminary injunction in case No. C107347.

The judgment of dismissal entered in case No. C107771 is appealable.The order sustaining the demurrer with leave to amend is not appealable, (Code Civ.Proc., § 904.1) and although an order denying a preliminary injunction is appealable, such an appeal would not be entertained where as here the underlying cause lacked viability.

Where actions are consolidated, however, the allegations of the complaints can be treated as one pleading.(Staub v. Muller, 7 Cal.2d 221, 60 P.2d 283;Simpson v. Bergmann, 125 Cal.App. 1, 13 P.2d 531.)We consider that plaintiff's filing of a notice of appeal in case No. C107347 constituted a refusal to amend.Further, in our opinion, as we shall point out, plaintiff was incapable of amending the complaint to plead a cause of action based on the city ordinance.The appropriate procedure would have been to enter a dismissal as to all counts.In order to avoid unnecessary delay we on our own motion amend the judgment of dismissal in case No C107771 to include a dismissal of case No. C107347.(Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174; Witkin, Calif. Procedure (2d ed.) Appeal, § 49, pp. 4064,4065.)We treat this as an appeal from a dismissal as to both cases.

The disposition of this case insofar as the causes of action based on the public nuisance statutes and the Red Light Abatement Act are concerned is controlled by People ex rel. Busch v. Projection Room Theater et al., 16 Cal.3d 360, 128 Cal.Rptr. 229, 546 P.2d 733, filed March 1, 1976.In that case it was held that the exhibition of obscene material could be restrained as a public nuisance under the general public nuisance statutes but that the Red Light Abatement Act did not apply to obscene books or films.

Thus the trial court here erred in sustaining the demurrer without leave to amend to that cause of action which seeks relief under the public nuisance statutes.(Civ.Code, §§ 3479,3480.)As to the cause of action seeking to apply the Red Light Abatement Act the demurrer was properly sustained.

We now turn to the effect of the Duarte City Ordinance and City Council Resolution which were pleaded as another theory of relief in case No. C107347.

Duarte City OrdinanceNo. 369, which was adopted November 12, 1974, (see appendix) purports to declare that the public exhibition of obscene films is a nuisance and creates a procedure whereby the City Council can declare the existence of such a nuisance (which perforce includes a determination of the obscene character of the films) and direct the City Attorney to undertake abatement proceedings.ResolutionNo. 74--32 adopted November 26, 1974, specifically found the Buena Vista Theater to be a public nuisance.The City Attorney by that Resolution was directed 'to take all steps necessary to abate such nuisances by the judicial proceedings specified (in the Ordinance).'

As will be discerned from a reading of City OrdinanceNo. 369, it attempts to designate various individuals who shall be deemed liable for the maintenance of the nuisance and it also purports to specify various forms of relief to be obtained in the abatement proceedings.It appears, although in somewhat different terminology, to restate prevailing law in defining obscenity.

Plaintiff relief on Government Code section 38771 as authority for its enactment.That statute provides: 'By ordinance the city ligislative body may declare what constitutes a nuisance.'

Further, Government Code section 38773 provides: 'The legislative body may provide for the summary abatement of any nuisance at the expense of the persons creating, causing, committing, or maintaining it and by ordinance may make the expense of abatement of nuisances a lien against the property on which it is maintained and a personal obligation against the property owner.'

Government Code section 38773.5 provides: 'The legislative body may by ordinance establish a procedure for the abatement of a nuisance and make the cost of abatement of a nuisance upon a parcel of land a special assessment against that parcel.The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes.All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.'

Of course, the exercise of the powers granted by the foregoing statutes is limited by the constitutional requirement of due process of law.(Leppo v. City of Petaluma, 20 Cal.App.3d 711, 97 Cal.Rptr. 840.)The elements of due process in the application of abatement proceedings to restrain the exhibition of films, an activity which presumptively enjoys First Amendment protection, are suggested by language in People ex rel. Busch v. Projection Room Theater et al., supra.

The first and foremost requirement is a judicial determination, prior to abatement, of the obscene character of the films under prevailing law.Patently the City Council could not, by ordinance, adopt its own definition of obscenity and even the most formal administrative proceeding to determine the issue of obscenity, under prevailing law, could not suffice as a substitute for a judicial determination.Further, the Council's Resolution that particular films were obscene would not be binding on the court in any abatement proceedings instituted thereafter.

Neither summary abatement nor temporary injunction is constitutionally permissible as a remedy in this type of abatement proceedings.

(N)o injunctive relief, whether temporary or permanent in nature, may be afforded until defendant has been given a full and fair judicial hearing on the issue of obscenity, and an opportunity to obtain prompt judicial review of that issue by the state appellate courts.'(People ex rel. Busch v. Projection Room Theater et al., supra, 16 Cal.3d at p. 375, 128 Cal.Rptr. at p. 239, 546 P.2d at p. 743.)Here the trial court quite properly denied plaintiff's motion for a temporary injunction.

The Supreme Court in Busch did not undertake to detail the specific form of relief which might be available following a court's determination that the exhibition constituted a nuisance.That decision, however, makes it clear that the Court shall fashion the relief that is 'proper and suitable' for each case.Thus a municipality may not, by ordinance, fashion that relief in advance.

In sum, a municipality under the authority of Government Code sections 38771,38773and38773.5, may not arrogate unto itself any greater power to abate as a nuisance the exhibition of films and books than is afforded by the state nuisance statutes as interpreted and applied in Busch.

It was observed in Busch, at p. 373, 128 Cal.Rptr. at p. 237, 546 P.2d at p. 741, that 'Once a community through its public officials has determined that a particular display of obscene materials amounts to a public nuisance which is injurious to the safety and morals of that community, no valid reason exists why, adequate constitutional procedural safeguards being met, the remedy of civil abatement proceedings must be denied such community.'

The procedure adopted by the City of Duarte in Ordinance 369 thus may operate as, and only as, a local internal mechanism for determining when the City will institute judicial proceedings to abate a public nuisance.The ordinance, however, does not and cannot itself create a cause of action for the City nor establish the liability of any particular individual nor prescribe any particular form of relief.The cause of action is created and the remedy is prescribed by Civil Code sections 3479,3480and3491.

The judgment of dismissal as amended in case No. C107347 is affirmed.The judgment of dismissal in case No. C107771 as to the cause of action based on the Red Light Abatement Act(Pen.Code, §§ 11225 et seq) is also affirmed.The judgment of dismissal in case No....