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

• Decision Date: 22 January 1980
• Citation: 161 Cal.Rptr. 562,101 Cal.App.3d 296
• Parties: PEOPLE of the State of California ex rel. Keith GOW, City Attorney of the City of Santa Ana, California, Plaintiff and Respondent, v. MITCHELL BROTHERS' SANTA ANA THEATER, etc., et al., Defendants and Appellants. Civ. 20836.
• Court: California Court of Appeals Court of Appeals

Page 562

161 Cal.Rptr. 562

101 Cal.App.3d 296

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

Civ. 20836.

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

Jan. 22, 1980.

Hearing Denied May 7, 1980.

Joseph Rhine, Hollywood, for defendants and appellants

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

OPINION

TAMURA, Associate Justice.

The City Attorney of the City of Santa Ana brought an action in the name of the People against the owners and operators of the Mitchell Brothers' Santa Ana Theater to enjoin the exhibition of a number of allegedly obscene motion pictures as a public nuisance. On plaintiff's motion, the court granted a preliminary injunction enjoining the showing of the films pending a final determination of their obscenity vel non. Defendants appeal from the order granting the preliminary injunction.

The complaint alleged that certain named feature length films and their previews being shown at the Mitchell Brothers' Theater in Santa Ana were obscene under the Penal Code section 311 definition of "obscenity" and that the exhibition of such films constituted a public nuisance. ¹ Following the filing of the action, the People made a motion for a preliminary injunction which was heard by Judge Hamilton on October 23, 24, 25, and 26, 1978. During the course of the hearing, the judge viewed 8 of the 26 films sought to be enjoined and the parties stipulated that the rest of the films were substantially the same in nature and content as those which the judge had viewed. Among the films viewed by the judge were "Deep Throat," "Devil in Miss Jones," "Roller Babies," and "Summer of Laura." Defendants requested the court to take judicial notice that "Roller Babies" and "Summer of Laura" had been determined to be nonobscene in a civil public nuisance action brought by the City Attorney of Santa Ana against certain of the same defendants and that "Deep Throat" and "Devil in Miss Jones" had been found to be nonobscene in an earlier misdemeanor prosecution in Orange County against defendants not parties to the instant action.

On November 2, 1978, Judge Hamilton filed a signed order in which he found that all of the films and previews listed in the application for preliminary injunction were obscene under the Penal Code section 311 definition of "obscenity" and granted a preliminary injunction prohibiting defendants from exhibiting or advertising any of the films or their previews during the pendency of the action or until otherwise ordered by the court. In the same order, the judge ordered defendants to appear on December 8, 1978, "for the hearing on the final injunction and at that time, . . . show cause, if they can, why a permanent injunction should not be issued . . . ." ²

Defendants moved to reconsider the granting of the preliminary injunction and that motion was set for hearing concurrently with the order to show cause why a permanent injunction should not issue. Both matters came on for hearing on December 18, 1978, before Judge Wisot. The judge denied the motion to reconsider the issuance of the preliminary injunction and ordered the show cause hearing on the permanent injunction off calendar without prejudice to the right of either party to have the cause set for trial on the merits in the manner prescribed by the Code of Civil Procedure. The judge expressed the view that the case could not be brought to trial by an order to show cause and that furthermore defendants were entitled to a jury trial on the issue of obscenity.

On December 26, 1978, defendants filed their notice of appeal from the November 2 order granting the preliminary injunction. ³

Defendants contend that the case of In re Ward, 82 Cal.App.3d 981, 147 Cal.Rptr. 476, to the contrary notwithstanding, a preliminary injunction may not issue in an action brought by the People under the state's public nuisance statutes to enjoin the exhibition of allegedly obscene films. Defendants also contend that the court abused its discretion in granting the preliminary injunction because it is not reasonably probable that the People will prevail in the action. Defendants argue that inasmuch as the facts of which the court was requested to take judicial notice show that 4 of the 8 films which the judge viewed had been found not to be obscene in prior litigation and since the parties stipulated that the films which the judge did not view were substantially similar in nature and content to those he had viewed, it is unlikely that the People will prevail in the trial on the merits. In a related contention, defendants contend the People are collaterally estopped from relitigating the obscenity of the 4 films and that therefore at a minimum the preliminary injunction should be modified to delete them from the order. In the ensuing analysis, we have concluded that defendants' contentions lack merit and that the order granting the preliminary injunction should be affirmed.

I THE PROPRIETY OF THE PRELIMINARY INJUNCTION

In People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600 (U.S. cert. den. in 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289), our Supreme Court sanctioned the use of the public nuisance statutes ⁴ as a means of regulating the exhibition of obscene materials provided that the statutes are used "in such a way as to operate in a constitutional fashion." (Id., at p. 55, 130 Cal.Rptr. at p. 335, 550 P.2d at p. 607. ⁵ ) The court rejected the argument that abatement of the exhibition of obscene materials under the state's public nuisance laws would violate the constitutional principle against prior restraint of presumptively protected materials. The court observed that a prior restraint is constitutional if it occurs under proper safeguards designed to avoid the dangers of censorship and noted that the state's public nuisance statutes do not provide for "specific forms of relief" as does the Red Light Abatement Law but instead permit a court of equity to fashion an injunction "proper and suitable to the facts of each case." (Id., at p. 57, 130 Cal.Rptr. at p. 337, 550 P.2d at p. 609; emphasis deleted.) "Thus," the court went on, "in matters before us if the trial court finds the subject matter obscene under prevailing law an injunctive order may be fashioned that is 'proper and suitable' in each case. It is entirely permissible from a constitutional standpoint to enjoin further exhibition of specific magazines or films which have been finally adjudged to be obscene following a full adversary hearing. (Citations.)" (Id., at pp. 57-58, 130 Cal.Rptr. at p. 337, 550 P.2d at p. 609.)

Defendants point to the quoted language, particularly the phrase "finally adjudged to be obscene following a full adversary hearing," in support of their argument that the Supreme Court was indicating that injunctive relief pendente lite is impermissible in an action to abate the exhibition of presumptively protected materials. The identical contention, however, was squarely presented to, and rejected by, the Court of Appeal in In re Ward, supra, 82 Cal.App.3d 981, 985, 147 Cal.Rptr. 476. The Ward court held that the quoted language from Busch related to a permanent injunction and was not intended to foreclose the granting of a preliminary injunction as long as the procedural safeguards against prior restraints are observed.

The procedural safeguards which are constitutionally required to obviate the danger that a system of prior restraints will run afoul of the First Amendment were first articulated in the seminal case of Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649. They have been summarized by the high court as follows: "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." (Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448.) Those standards have since been applied to a motion picture licensing or censorship case (e. g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966; New Rivieria Arts Theatre v. State, 219 Tenn. 652, 412 S.W.2d 890), to regulation of live musical performances (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448), to seizure of imported materials by federal customs agents (United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822), to restriction of use of the mails by postal officials (Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498), to seizure of obscene materials in criminal obscenity prosecutions (Suki, Inc. v. Superior Court, 60 Cal.App.3d 616, 624, 131 Cal.Rptr. 615; People v. Superior Court (Loar), 28 Cal.App.3d 600, 618, 104 Cal.Rptr. 876), and to the granting of preliminary injunctions in public nuisance obscenity cases (e. g., Grove Press, Inc. v. City of Philadelphia, supra, 418 F.2d 82; Commonwealth v. Guild Theatre, Inc., supra, 248 A.2d 45; State ex rel. Ewing v. "Without A Stitch," 37 Ohio St.2d 95, 307 N.E.2d 911; State v. A Motion Picture Entitled "The Bet," supra, 547 P.2d 760; State v. Gulf States Theatres of Louisiana, Inc., supra, 270 So.2d 547).

In In re Ward, supra, 82 Cal.App.3d 981, 147 Cal.Rptr. 476, defendants argued that a preliminary injunction operated as an unconstitutional prior restraint because there was no guarantee that a final determination on the issue of obscenity would promptly follow the preliminary restraint. The court turned aside the argument holding that the following provisions of Code of Civil Procedure section...