People v. Mitchell

• Decision Date: 30 November 1976
• Citation: 64 Cal.App.3d 336,134 Cal.Rptr. 358
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James MITCHELL et al., Defendants and Appellants. Civ. 48574.

Page 358

134 Cal.Rptr. 358

64 Cal.App.3d 336

The PEOPLE, Plaintiff and Respondent, v. James MITCHELL et al., Defendants and Appellants.

Civ. 48574.

Court of Appeal, Second District, Division 1, California.

Nov. 30, 1976.

Hearing Denied Feb. 17, 1977.

Joseph Rhine, San Francisco, for defendants and appellants.

Burt Pines, City Atty., George Eskin, Chief Asst. City Atty., Madeleine I. Flier, Asst. City Atty., Richard M. Helgeson, Deputy City Atty., John Van de Kamp, Dist. Atty., Richard P. Kalustian and Otis L. Hubbard, Deputy Dist. Attys., for plaintiff and respondent.

THOMPSON, Associate Justice.

This appeal, while broadly framed, primarily presents the narrow issue of the power of a trial court acting on a petition filed under the Red Light Abatement Law to grant relief by preliminary injunction, effectively closing the property claimed to be a nuisance. Concluding that the relief is appropriate only in a judgment on the merits and not by provisional remedy, we reverse the order granting a preliminary injunction.

Four Star Theatre is a theatre and related property located on Wilshire Boulevard in Los Angeles. The property is leased by its owners to United Artists Theatres of California, Inc., and subleased by United Artists to James and Artie Mitchell and corporations controlled by them. The sublease calls for rent of $48,000 per year, runs to August 30, 1977, is for the purpose of conducting a theatre, covers furniture, fixtures and equipment, and vests the right of possession in the sublessee.

The Mitchell group operates the theatre, catering to devotees of 'X-rated' films. During the calendar year 1974, officers of the Los Angeles Police Department observed over 30 acts of public masturbation by patrons of the theatre. Employees of the Mitchell group were instructed to cause a warning of the presence of officers in the theatre to be flashed on the screen whenever their presence was known. While ushers sometimes patrolled the aisles, the patrol was sporadic at best except when police officers were known to be present.

The City Attorney of Los Angeles and the District Attorney of the county filed an action under the Red Light Abatement Law (Pen. Code, §§ 11225--11235) to abate the operation of the theatre as a statutory nuisance. The action names the lessors, United Artists, and the Mitchell group as defendants. Accepting declarations filed by the plaintiffs establishing the facts we have recited in this opinion and rejecting defendants' declarations to the effect that the Mitchell group had not encouraged or condoned the conduct of the patrons, the trial court issued a preliminary injunction on plaintiffs' motion.

The preliminary injunction enjoins each of the defendants named in the action from: 'a. Allowing or permitting any person to enter the (theatre) premises . . . for any purpose except that (lessors, United Artists) and their agents . . . shall be permitted to enter, but only for such purposes as are required for the safety of the property, and for . . . negotiations for the lawful use of the property . . .; (and) b. Maintaining or operating, or allowing or permitting the maintenance or operation of the (theatre) premises . . . as a place of lewdness or assignation, and from permitting either directly or indirectly any acts of lewdness or assignation on the . . . premises.'

By its terms, the preliminary injunction permits the lessors and United Artists 'or their successors in interest' to move to modify or terminate the injunction on a showing that they have a plan for operation of the property not involving the maintenance of a nuisance.

On this appeal from the order granting the preliminary injunction, the Mitchell group, but not the other defendants, contends: (1) the Red Light Abatement Law is not applicable to a motion picture theatre; (2) the commission of lewd acts by the theatre's patrons does not bring the property within the Red Light Abatement Law; and (3) the statutory scheme does not permit the theatre to be closed by preliminary injunction as opposed to an injunction granted in the form of a judgment. Only the last contention has merit.

Applicability of Red Light Abatement Law. Penal Code section 11225 provides in part: 'Every building or place used for the purpose of . . . lewdness, assignation, or prostitution, and every building or place in or upon which acts of . . . lewdness, assignation, or prostitution, are held or occur, is a...