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

• Decision Date: 16 April 1981
• Citation: 118 Cal.App.3d 863,173 Cal.Rptr. 476
• Parties: PEOPLE of the State of California, ex rel. Keith GOW, City Attorney of the City of Santa Ana, Plaintiff and Respondent, v. MITCHELL BROTHERS' SANTA ANA THEATER et al., Defendants and Appellants. Civ. 23408.
• Court: California Court of Appeals Court of Appeals

Page 476

173 Cal.Rptr. 476

118 Cal.App.3d 863

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

Civ. 23408.

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

April 16, 1981.

William K. Maas, Jr., Martinez, and Meredith Bradford, Pleasant Hill, for defendants and appellants

[118 Cal.App.3d 867] James J. Clancy, Burbank, for plaintiff and respondent.

OPINION

MORRIS, Associate Justice.

This is the third appeal between these parties to be decided by this court within the last 15 months. ¹ In this case, as in the previous two, the Santa Ana City Attorney brought suit, pursuant to Code of Civil Procedure section 731, against the owners and operators of the defendant movie theater to abate a public nuisance. The public nuisance was alleged to be the exhibition of obscene films. ² In the present case, the defendants appeal from an order granting a preliminary injunction. By that order, the defendants are currently prevented from exhibiting or selling 50 named films and film previews and the video tape cassettes of those films and previews. The preliminary injunction was issued when the trial court determined, after an adversary hearing, that the films and previews were obscene by clear and convincing evidence.

The defendants' threshold argument is that the issuance of a preliminary injunction in accordance with the standards of the Code of Civil Procedure is constitutionally invalid in cases involving the exhibition of motion pictures, an activity protected by the First Amendment. The applicable law was stated by the Supreme Court in Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 559-560, 95 S.Ct. 1239, 1246-47, 43 L.Ed.2d 448: "The settled rule is that a system of prior restraint 'avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.' (Citations.) ... (A) system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured." ³

Defendants claim that the California procedure on injunctions is deficient in this case, because it fails to provide the second and third safeguards required by the Southeastern Promotions case. The statute in issue is section 527, subdivision (a), of the Code of Civil Procedure, which states the law regarding pre-judgment injunctions. That statute provides that "(a)n injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.... When the cause is at issue is shall be set for trial at the earliest possible date and shall take precedence of all other cases, except older matters of the same character, and matters to which special precedence may be given by law."

The defendants' claim on this issue has been expressly rejected twice before. (Gow I, supra, 101 Cal.App.3d 296, 301-305, 161 Cal.Rptr. 562; In re Ward (1978) 82 Cal.App.3d 981, 984-989, 147 Cal.Rptr. 476.) The Ward court stated that the issuance of a preliminary injunction, after an adversary hearing, against motion pictures is not an unconstitutional prior restraint, because "there is a statutory imperative (§ 527(a)), enforceable by extraordinary writ proceedings in the appellate courts, requiring that matters wherein a preliminary injunction has been granted be given the highest priority for final determination." (82 Cal.App.3d, at p. 987, 147 Cal.Rptr. 476.) And, as we stated in Gow I, "While under Code of Civil Procedure section 527, subdivision (a), either party would be entitled to bring the case to an early trial, in the context of an injunction to abate the exhibition of obscene materials, that burden is on the People and the failure to take such action would be a ground for the dissolution of the preliminary injunction." (101 Cal.App.3d, at p. 304, 161 Cal.Rptr. 562, fn. omitted.) We thus hold, again, that the procedures governing the issuance of preliminary injunctions in public nuisance abatement actions provide sufficient safeguards so as to operate in a constitutional manner when applied to the regulation of allegedly obscene films. ⁴

Defendants make the related claim that the trial court did not have the power to preliminarily enjoin the sale of video tape cassettes of allegedly obscene films. They argue that issuing such an injunction is an impermissible extension of the Busch case and "is virtually a lawless action completely outside the bounds of statutory and case law, and flatly contrary to the rules forbidding prior restraints. We disagree. The trial court's action was well within the constitutional boundaries established by both the United States and California Supreme Courts.

In Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 68-69, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446, it was held that "(c)ommercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public environment.... The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize in Mr. Chief Justice Warren's words, the States' 'right ... to maintain a decent society.' (Citation.)" (Emphasis added.) Similarly, in People v. Luros (1971) 4 Cal.3d 84, 93, 92 Cal.Rptr. 833, 480 P.2d 633, cert. den., 404 U.S. 824, 92 S.Ct. 51, 30 L.Ed.2d 52, it was said that "States retain broad power to regulate obscenity and regulation of the public distribution of obscenity falls well within the broad scope of the power." (Emphasis added.) These portions of Paris and Luros were quoted with approval in Busch, supra, 17 Cal.3d at pp. 51-53, 130 Cal.Rptr. 328, 550 P.2d 600. (See also Gow II, supra, 114 Cal.App.3d at p. 932, fn. 10, 171 Cal.Rptr. 85.) The sale of video tape cassettes of obscene films is clearly "commerce in" and "public distribution of" obscenity and may be regulated by the same means, including preliminary injunctions when appropriate, as is the exhibition of those films.

The defendants' next contention is that the trial court did not follow the general rules on preliminary injunctions in making its order. Specifically, the defendants assert that the granting of the preliminary injunction was improper because the plaintiffs failed to show irreparable injury, because a greater injury results to the defendant in granting the preliminary injunction than to the plaintiff in refusing it, and because there is no likelihood that the plaintiff will prevail on the merits.

The law regarding preliminary injunctions was best summarized in Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889: "The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. (Citations.) Thus, the court examines all of the material before it in order to consider 'whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; ...' (Citations.) In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. (Citations.)" (See also People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 408, 166 Cal.Rptr. 519.)

The trial court, then, must decide which partly will be injured more by an adverse ruling on an application for a preliminary injunction. That decision, however, " 'rests in the sound discretion of the trial court, and ... may not be interfered with on appeal, except for an abuse of discretion.' " (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889.) Such abuse of discretion must be clearly shown. (People v. Columbia Research Corp. (1977) 71 Cal.App.3d 607, 609, 139 Cal.Rptr. 517, cert. den., 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191.) We conclude that defendants have failed to make the required showing.

Defendants contend that the trial court could not grant a preliminary injunction because the plaintiff did not allege that it would be "irreparably injured" by the denial of the injunction. An "irreparable injury" is sometimes considered a requirement for preliminary injunctive relief. (See 2 Witkin, Cal. Procedure (2d ed. 1970) Provisional Remedies, § 51, pp. 1499-1500.) Defendants, however, apparently misunderstand the meaning of the term, since the harm caused by the unabated exhibition of obscene films clearly constitutes an irreparable injury. As was noted in Wind v. Herbert (1960) 186 Cal.App.2d 276, 285, 8 Cal.Rptr. 817, " 'the word "irreparable" is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages estimable only by conjecture and not by any accurate standard.' " If the motion pictures currently under preliminary injunction are later found to be obscene, their exhibition now would be a wrong "of a repeated and continuing character," and, since a permanent injunction is the only relief to which the plaintiff is entitled in this case (Gow...