Pitchess v. Superior Court

• Decision Date: 16 December 1969
• Citation: 2 Cal.App.3d 653,83 Cal.Rptr. 41
• Court: California Court of Appeals Court of Appeals
• Parties: Peter J. PITCHESS, Sheriff of the County of Los Angeles; Evelle J. Younger, District Attorney of the County of Los Angeles; and the City of Azusa, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, Joseph DEL BONO and Joseph L. Matuck, Real Parties in Interest. Civ. 35422.

Page 41

83 Cal.Rptr. 41

2 Cal.App.3d 653

Peter J. PITCHESS, Sheriff of the County of Los Angeles; Evelle J. Younger, District Attorney of the County of Los Angeles; and the City of Azusa, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent Joseph DEL BONO and Joseph L. Matuck, Real Parties in Interest.

Civ. 35422.

Court of Appeal, Second District, Division 3, California.

Dec. 16, 1969.

FEINERMAN, Associate Justice pro tem. ^*

On July 3, 1969, real party in interest, Joseph Del Bono, filed a complaint seeking a temporary restraining order and a preliminary injunction enjoining the County of Los Angeles and its agents, servants and employees from arresting the plaintiff or his employees for the presentation of so-called 'bottomless entertainment' at plaintiff's place of business. The complaint alleged that the plaintiff and his employees were defendants in 80 charges pending in in the Municipal Court of the El Monte Judicial District; that the plaintiff had been required to post $70,000 bail on behalf of his employees at a cost to himself of $7,000 in bail bond premiums; that the defendants in the criminal proceedings who are arrested 'night after night' are the same individuals; that the 'entertainment' presented by his employees was of a type and nature which had been held to be constitutionally protected and not in violation of any law; that the actions of the County were an attempted restriction upon the rights of free speech of the plaintiff and his employees; that plaintiff had suffered irreparable damage by virtue of the fact that the moneys expended for bond premiums were not recoverable and the fact that he had extreme difficulty in obtaining employees because they were faced with arrest and incarceration.

The sheriff and district attorney of the County of Los Angeles were not named in the complaint, were not served with the summons and complaint, and did not appear in the trial court.

On July 17, 1969, the plaintiff filed a First Amended Complaint containing the same charging allegations, and the respondent court issued an ex parte restraining order restraining the County of Los Angeles from arresting the plaintiff or his employees '* * * for any offense predicated upon exposing the buttocks, pubic hair and external lips of the vagina of dancers while engaging in entertainment consisting of dancing at plaintiff's place of business.'

A hearing was held on the motion for preliminary injunction on August 1, 1969. At the conclusion of the hearing, the court issued a preliminary injunction (entitled 'Restraining Order') as follows:

'UPON READING the Affidavits of Dean R. Pic'l and Joseph Del Bono and the verified complaint and upon all of the files and records herein, and it appearing that the multiple arrests, bookings, and bail required in connection with the premises located at 14830--32 Valley Boulevard, Industry, California, known as the Showplace, will cause immediate and irreparable injury and great financial loss and damage to plaintiff, and that the bail already exacted in connection with the multiple arrests under the particular circumstances is excessive for misdemeanor cases: IT IS ORDERED, That: The District Attorneys Office, Sheriff of Los Angeles County for the City of Industry, their agents, attorneys, servants and representatives, are enjoined from threatening, instituting, or causing to institute, any arrest or prosecution against plaintiff, or anyone associated with plaintiff in the presentation of entertainment at the Showplace located at 14830--32 Valley Boulevard, Industry, County of Los Angeles, State of California, and from taking any action, or engaging in any conduct which interferes with the performance of the said entertainment (topless and/or bottomless). However, that this Order shall not, in any manner or form, interfere with the right of the defendants, their agents, attorneys, servants and representatives, to institute additional prosecutions By citation only, as provided for in California Penal Code Section 853.6 and to continue with prosecutions against plaintiff, and anyone associated with plaintiff, based upon the aforesaid entertainment.'

On August 22, 1969, real party in interest, Joseph L. Matuck, filed a complaint seeking injunctive relief. The complaint alleged that he was the owner of a business which had been presenting entertainment 'of the exact type and nature' which had been held constitutionally protected; that the plaintiff and his employees were the defendants in 30 criminal actions; that they had been arrested 'night after night'; that the plaintiff had spent $3,750 in bail bond premiums for himself and his employees; that the frequent presence of police officers had substantially reduced the gross receipts of his business. In a declaration filed with the trial court prior to the hearing on the preliminary injunction, Matuck alleged that his weekly gross had dropped from $3,500 to $1,900 and that the continued presence of law enforcement officers on the premises and their vehicles parked outside caused many patrons to advise him of their...