People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater

• Decision Date: 07 March 1985
• Docket Number: No. C,C
• Citation: 165 Cal.App.3d 378,211 Cal.Rptr. 501
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California ex rel. Edward COOPER, City Attorney of the City of Santa Ana, California, Plaintiff and Appellant, v. MITCHELL BROTHERS' SANTA ANA THEATER, et al., Defendants and Appellants. E001372 (Formeriv. 30523).

Page 501

211 Cal.Rptr. 501

165 Cal.App.3d 378

PEOPLE of the State of California ex rel. Edward COOPER, City Attorney of the City of Santa Ana, California, Plaintiff and Appellant, v. MITCHELL BROTHERS' SANTA ANA THEATER, et al., Defendants and Appellants.

E001372 (Former No. Civ. 30523).

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

March 7, 1985.

Review Denied May 29, 1985.

James J. Clancy, Sun Valley, for plaintiff and appellant.

Michael Kennedy and Thomas Steel, San Francisco, for defendants and appellants.

OPINION

MORRIS, Presiding Justice.

Plaintiff appeals from those portions of a superior court order that denied the plaintiff's motion for attorney's fees on appeal, and granted that part of defendants' motion to tax costs that objected to (1) attorney's fees as a part of costs on appeal, and (2) costs incurred in the proceedings in the United States Supreme Court.

Defendants appeal from that part of the superior court order that denied portions of their motion to tax costs.

Some discussion of the history of this case is necessary for an understanding of the issues presented in this appeal.

Initially, both the plaintiff and defendants appealed from a judgment in an action brought by plaintiff to enjoin the showing of 17 allegedly obscene films on the ground that they constituted a public nuisance as defined by Civil Code sections 3479 and 3480. The trial was bifurcated and the case was tried in part by jury and in part to the court. The jury first decided the issues of obscenity, public nuisance, and assessed the amount of damages. Following the presentation of evidence to the jury, including the viewing of 17 films at the defendants' theater, the jury was instructed, inter alia, that a film could be found obscene only if the jurors were convinced of such obscenity "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene, and could not reach a verdict on the remaining 2. The jury awarded a total of $76,400 in compensatory damages.

Thereafter, the court issued its judgment and findings of fact and conclusions of law on the equitable issues. The court ruled against plaintiff in its efforts (1) to establish a constructive trust on the theater's box office receipts, (2) to revoke defendants' license, and (3) to close the theater for one year. The court ruled in city's favor by (1) permanently enjoining the exhibition or advertising by the defendants of the 11 films found obscene by the jury, (2) ordering the defendant to allow city's officers "free and total access to all parts of the theater" for a two-year period for monitoring purposes, (3) ordering defendants to deposit $100,000 "in trust for the City ... as a security deposit against future attorney fees, costs, and expenses incurred by the City" in abating future nuisances by defendants within a two-year period, (4) ordering destruction of the 11 film prints of the obscene films, and (5) awarding the city $5,869.31 in costs. (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 114 Cal.App.3d 923, 171 Cal.Rptr. 85.)

Both parties appealed from those portions of the judgment that were adverse to them. Also, the defendants sought reversal of a discovery order that defendants pay $5,000 in sanctions to the city's counsel for noncompliance with earlier discovery orders.

This court upheld the $5,000 discovery sanction and those parts of the judgment enjoining the defendants from advertising or exhibiting the 11 films found to be obscene beyond a reasonable doubt and denying the city's request for a constructive trust, the revocation of defendants' license, and the closure of defendants' theater. This court reversed those parts of the judgment awarding $76,400 damages to the city and ordering access to all parts of the theater for two years, the payment of $100,000 into a trust fund for further attorney's fees, and the destruction of the prints of the films. (Id.)

Inasmuch as the appeal resulted in a partial reversal of the judgment, and this court did not otherwise award costs, the remittitur, issued on May 18, 1981, included an award of costs on appeal to defendants as the prevailing party pursuant to rule 26(b) of the California Rules of Court.

The clerk correctly interpreted rule 26(b) in that the defendants were then the prevailing party in the appeals of both plaintiff and defendants.

Defendants' appeal was on the ground, inter alia, that the relief afforded by the trial court was impermissibly broad. The partial reversal was responsive to this appeal.

Plaintiff's grounds for appeal had been rejected, including the contention that the trial court had improperly required it to prove its obscenity claim beyond a reasonable doubt. (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater, supra, 114 Cal.App.3d 923, 171 Cal.Rptr. 85.)

Thereafter, the United States Supreme Court granted certiorari on the issue of the appropriate standard of proof. The Supreme Court concluded that the United States Constitution does not require proof beyond a reasonable doubt in a civil obscenity case. Consequently, the decision of this court was reversed and the case remanded to us to determine whether under the California Constitution there is a more stringent burden of proof than the clear and convincing evidence standard found to be the strictest standard potentially applicable under the United States Constitution. (California ex rel. Cooper v. Mitchell Bros. (1981) 454 U.S. 90, 102 S.Ct. 172, 70 L.Ed.2d 262.)

On remand this court held, "In our opinion the problem of balancing the state's interest in controlling obscenity and the individual's constitutional right of free speech is sufficiently complex. We do not think the adoption of a different procedural rule with respect to the proof of obscenity under state law would either advance the cause of free speech or help control obscenity. Therefore, since the Supreme Court has announced that the United States Constitution does not require proof beyond a reasonable doubt, we conclude that the proper standard of proof under both the state and federal Constitutions is the 'clear and convincing evidence' standard.

"...

"The trial court in the present case thus erred in requiring the fact of obscenity to be proved beyond a reasonable doubt. Since the court issued injunctions against only 11 of the 17 films complained of, the city attorney may again seek to enjoin the remaining 6 films. The case is remanded for further proceedings consistent with this opinion. Except for the section concerning standard of proof, we reiterate our earlier opinion (114 Cal.App.3d 923) in its entirety." (People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1982) 128 Cal.App.3d 937, 940-941, 180 Cal.Rptr. 728.)

Costs on Appeal

The remittitur, filed by the clerk of this court on June 7, 1982, awarded costs to "Respondents" as the prevailing party pursuant to rule 26(b) of the Rules of Court. Unfortunately, this order was ambiguous. Inasmuch as plaintiff had now prevailed on one issue raised in its appeal, there were now two prevailing parties. Each party had succeeded in obtaining a partial reversal of the judgment. Because this court did not specify who was entitled to costs, the clerk attempted to enter costs as mandated by rule 26(b). The clerk designated "Respondents" in an apparent effort to recognize the fact that there was now a second prevailing party.

We now recognize that due to the complexity of the issues and the nature of the appeals, this court's opinion should have specified the prevailing parties as to each appeal. Nevertheless, because the remittitur involves two appeals and does not specify on which appeal the costs are awarded, it must be interpreted to apply to both appeals.

In any event, in the absence of an award by the court, the clerk has no discretion but must award costs pursuant to rule 26(b). Thus with respect to the appeal of plaintiff, appellant, cross-respondent People of the State of California ex rel. City Attorney of Santa Ana, the plaintiff is the prevailing party because it has obtained a partial reversal of the judgment; and with respect to the appeal of defendants, appellants, cross-respondents Mitchell Brothers Santa Ana Theater, et al., the defendants are still the prevailing party because they have obtained a partial reversal of the judgment. ¹ "The interpretation of a remittitur requires that the court's opinion be consulted, especially in case of ambiguity [citations], and that meaning given to it which harmonizes with the court's ruling. (Combs v. Haddock (1962) 209 Cal.App.2d 627, 631, 26 Cal.Rptr. 252.)"

The trial court's order awarding costs to plaintiff as the prevailing party in both appeals is reversed and the matter remanded to the trial court for further proceedings. Plaintiff is to receive the costs of its appeal and defendants are to recover costs of their appeal. The costs are to be apportioned on the basis of the portions of the transcripts and briefs devoted to each appeal. (See Baldie v. Bank of America (1950) 97 Cal.App.2d 614, 614, 217 P.2d 1011.)

Attorney's Fees

The second remittitur issued from this court on June 7, 1982.

On July 6, 1982, plaintiff filed its "Memorandum of Costs on Appeal" in which it claimed attorney's fees as a part of the costs under the "private attorney general" theory. On September 8, 1982, plaintiff filed its Notice of Motion for an Award of Attorney's Fees on appeal, relying on Serrano v. Priest (1977) 20 Cal.3d 25, 50, 141 Cal.Rptr. 315, 569 P.2d 1303, and California Code of Civil Procedure section 1021.5.

Subsequently, plaintiff asserted the additional right to an award of reasonable attorney's fees in reliance on newly enacted Civil Code section 3496.

Plaintiff's request for attorney's fees was denied on the grounds that Code of Civil Procedure section 1021.5 is not applicable to claims in favor of public entities, and that Civil Code section 3496 does not authorize trial...