People v. Frangadakis

• Decision Date: 13 September 1960
• Docket Number: No. 18828,18828
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Manos FRANGADAKIS and Helen Frangadakis, Defendants and Appellants. Civ.

Page 776

7 Cal.Rptr. 776

184 Cal.App.2d 540

PEOPLE of the State of California, Plaintiff and Respondent, v. Manos FRANGADAKIS and Helen Frangadakis, Defendants and Appellants.

Civ. No. 18828.

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

Sept. 13, 1960.

James C. Purcell, S. Lee Vavuris, San Francisco, for appellants.

Stanley Mosk, Atty, Gen., Albert W. Harris, Jr., Deputy Atty. Gen., for respondent.

STONE, Justice pro tem.

This appeal is from a decree enjoining a public nuisance.

The Facts

The District Attorney of the City and County of San Francisco, on August 16, 1957, filed an amended complaint for the abatement of a public nuisance pursuant to Business and Professions Code section 25604. It charged and defendant Manos Frangadakis had maintained a restaurant known as 'Manuel's Breakfast Club' at 292 Turk Street in San Franciso without proper license, and was then maintaining for a consideration a place for the drinking of alcoholic beverages by members of the public. The complaint alleged that defendant Helen Frangadakis was the owner of the property and defendant Manos Frangadakis, her husband, was lessee thereof. It was also alleged that the district attorney did on March 7, 1957, give notice to the defendants in writing to remove, discontinue and abate said nuisance, and that defendants failed to comply therewith. In their answer defendants admitted that neither possessed the license required by Section 25604, and they admitted receipt of the notice from the district attorney dated March 7, 1957, but each denied that the premises had been maintained as charged by the district attorney. By way of affirmative defense they alleged that Section 25604 violates both the due process and the privileges and immunities provisions of the United States and California Constitutions. The court sitting without a jury found that defendant Manos Frangadakis was operating the premises at 292 Turk Street, San Francisco, in violation of Section 25604 of Business and Professions Code, and that defendant Helen Frangadakis, his wife, the owner of the premises, had knowledge thereof. Business and Professions Code Section 25604 provides:

'25604. It is a public nuisance for any person to maintain any club room in which any alcoholic beverage is received or kept, or to which any alcoholic beverage is brought, for consumption on the premises by members of the public or of any club, corporation, or association, unless the person and premises are licensed under this division. It is a public nuisance for any person to keep, maintain, operate or lease any premises for the purpose of providing therein for a consideration a place for the drinking of alcoholic beverages by members of the public or other persons, unless the person and premises are licensed under this division. As used herein 'consideration' includes cover charge, the sale of food, ice, mixers or other liquids used with alcoholic beverage drinks * * *.

'The Attorney General or any district attorney may bring an action in the name of the people to abate the nuisance, and the Attorney General shall, upon request of the department, bring the action.' (Added Stats.1953, c. 152, p. 1020, § 1, as amended Stats.1953, c. 1331, p. 2893, § 17, and as amended Stats.1955, c. 447, p. 925, § 130.)

Agents of the Department of Alcoholic Beverage Control and police officers of the City of San Francisco visited the premises during the year 1957 on February 24, March 10, March 13, March 23, May 25, August 23, November 17, and during the year 1958 on January 12, January 24, February 15, March 8, April 12, October 4, December 14 and December 20. Upon each occasion the officers entered defendants' premises after 2:20 a. m.; they paid a $1.00 admission charge; a waitress either seated them at a table or approached the table after they were seated, and took an order; they were served a mix, either soda, Seven-up or water with ice; the charge was $.75 upon some occasions and $1 on others. Upon each visit, except those of August 23, 1957 and December 20, 1958, which will be discussed hereinafter, the officers brought whisky onto the premises and poured it into the cups of mix which had been served them, doing so in full view of everyone present. Upon these occasions they observed from 20 to 60 other persons on the premises, many of them pouring liquids from what appeared to be whisky bottles into cups furnished by the waitresses. An agent testified that on the morning of November 17, 1957, at 3:30 o'clock a. m., in addition to using whisky brought on the premises by himself, he purchased a half pint of whisky from the doorman who had previously collected the $1 admission fee. The agent gave a $10 bill to the doorman who placed it in the same cash register in which he had deposited the admission fees. From the register he took $5 change and handed it to the agent. Miguel M. Narro, an agent of the Department of Alcoholic Beverage control, testified that he entered the premises December 20, 1958, (the action was tried December 22, 1958) at approximately 2:30 a. m., paying $1 to the doorman; that there were 50 or 60 people present; that a waitress wearing a small apron, carrying a towel with a service tray, took an order for a cup of coffee and a cup of Seven-up and ice, for which she charged $1 each. One officer poured White Label Scotch into his drink and placed the bottle on the table in plain sight. Narro testified he then called the waitress and asked what was in his drink. She replied that there had been a mistake. Narro then asked if they had 'booze', and said that he would like booze in the next drink. The waitress replied, 'All we have is bourbon and scotch'. The agent then ordered scotch, and the waitress went to the bar, obtained a drink, served it, and the agent paid her $1. The agent testified that the drink tasted and smelled as though it contained scotch or some kind of alcoholic beverage. The agent then arrested the waitress and conducted a search of the bar. On the second shelf below the back bar he found two glasses which 'seemed to have contained scotch and bourbon'.

Right To Jury Trial

Before the action was set for trial the People made a motion in the department of the presiding judge to have the matter set in a nonjury department upon the ground that defendants were not entitled to a trial by jury. This motion was granted by the presiding judge. When the matter came on for trial, defendants renewed their motion for trial by jury. The trial judge, upon being advised that the presiding judge had, upon motion, removed the cause from the jury trial calendar, ordered the parties to proceed with the trial before him without a jury. Defendants contend they were entitled to a trial by jury as a matter of right under the provisions of California Constitution, Article I, Section VII. The right to trial by jury in any particular proceeding is determined by whether the right existed at common law in 1950 when the Constitution became the law of the State of California. Farrell v. City of Ontario, 39 Cal.App. 351, 356, 178 P. 740; People v One 1941 Chevrolet Coupe, 37 Cal.2d 283, 287, 231 P.2d 832. Appellants place great emphasis upon the Farrell case, but a caremul reading of the opinion reflects that the right to jury trial in an injunction action at common law in 1850 related to the legal remedy of damages for past injuries, not to the equitable remedy of injunction. In Pacific Western Oil Co. v. Bern Oil Co., 13 Cal.2d 60, 87 P.2d 1045, the Supreme Court reviewed the cases on the subject, including the Farrell case, and concluded that in an injunction action where both legal and equitable remedies are sought, the parties are entitled to a jury trial only as to the legal issues. We have found no case which holds that at common law in 1850 a party to an action was entitled to a jury trial of a purely equitable action to abate a nuisance. To the contrary, in People v. One 1941 Chevrolet Coupe, supra, cited by defendants, the Supreme Court said in 37 Cal.2d at page 298, 231 P.2d at page 843,

'The right of trial by jury did not exist at common law in a suit to abate a public nuisance. People v. McCaddon, 48 Cal.App. 790, 792, 192 P. 325. Hence it is not a constitutional right now.'

Since the action before us is one to abate a public nuisance and no legal issue is presented, the defendants have no right to a jury trial. McCarty v. Macy & Co., 153 Cal.App.2d 837, 839, 315 P.2d 383.

In connection with their argument concerning a right to a jury trial, defendants urge that it was error for the presiding judge to hear the motion to remove the cause from the jury trial calendar. A motion for either a jury or nonjury trial is properly presented to the presiding judge. Multi-judge courts designate certain departments for trial of jury cases and others for nonjury trials to facilitate the orderly disposition of business. Motions concerning the right to trial by jury must necessarily be directed to the presiding judge who assigns the cases. We do not see how prejudice could result from such a practice since the several departments function as one court. Davis v. Conant, 10 Cal.App.2d 73, 75, 51 P.2d 151. Further, there was no error here since appellants renewed their motion for trial by jury when the matter was called for hearing in the trial department. The record reflects the following motion,

'Mr. Purcell: Before the first witness is sworn, if the Court please, at this time I desire for the record to state that we stand upon the demand heretofore made for a jury trial, and that we object to proceeding without a jury; and our being here is not to be construed as a waiver of our right to demand a jury heretofore made.'

Following the motion there was some discussion as to whether or not an order had been made and, if so, its import. The discussion ended thusly:

'The Court: An order was made transferring it from the jury calendar to the court calendar for...