Pitchess v. Superior Court

• Decision Date: 16 December 1969
• Citation: 2 Cal.App.3d 644,83 Cal.Rptr. 35
• Court: California Court of Appeals Court of Appeals
• Parties: Peter J. PITCHESS, Sheriff of the County of Los Angeles; Los Angeles County Public Welfare Commission; the Department of Alcoholic Beverage Control for the State of California; and the State of California, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, James DOZAL, Robert La Rue, Tommie Robbins, Ralph Holiday, Ron Walton, Robert E. Poff, 13801 Inglewood Corporation, Arnold P. Darin, and Edward Grimes, Real Parties in Interest. Civ. 35274.

Page 35

83 Cal.Rptr. 35

2 Cal.App.3d 644

Peter J. PITCHESS, Sheriff of the County of Los Angeles; Los Angeles County Public Welfare Commission; the Department of Alcoholic Beverage Control for the State of California; and the State of California, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent James DOZAL, Robert La Rue, Tommie Robbins, Ralph Holiday, Ron Walton, Robert E. Poff, 13801 Inglewood Corporation, Arnold P. Darin, and Edward Grimes, Real Parties in Interest.

Civ. 35274.

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

Dec. 16, 1969.

Hearing Denied Feb. 11, 1970.

John D. Maharg, County Counsel, Michael H. Dougherty, Deputy County Counsel, Thomas C. Lynch, Atty. Gen., and Megan A. Wagner, Deputy Atty. Gen., for petitioners.

No appearance for respondent.

Marks, Sherman & London and Robert H. London, Los Angeles for real parties in interest, James Dozal, Robert La Rue, Tommie Robbins, Ralph Holiday and Ron Walton.

Moore & Steelman and Berrien E. Moore, Santa Ana, for real parties in interest, Robert E. Poff, 13801 Inglewood Corporation, Arnold P. Darin and Edward Grimes.

FEINERMAN, Associate Justice pro tem. ^*

The real parties in interest in this matter are divided into two groups. The first group, consisting of five plaintiffs (James Dozal, Robert La Rue, Tommie Robbins, Ralph Holiday, and Ron Walton), filed a joint complaint for declaratory and injunctive relief in the Superior Court of Los Angeles County on July 24, 1969. On the same date on which the complaint was filed the court issued an ex parte temporary restraining order restraining the sheriff of Los Angeles County and the state from making any physical arrests of the plaintiffs or their employees for any alleged violations of law arising out of the presentation of 'nude entertainment' except upon the following conditions: (1) that a valid warrant of arrest be obtained from a magistrate authorized to issue such warrants upon the issuance of a criminal complaint; and that the issuance of the criminal complaint be based upon probable cause; (2) that the magistrate be informed of the respondent court's restraining order, and be provided with a copy of the complaint, the restraining order, and the points and authorities of plaintiffs. The restraining order further provided that the sheriff and the state were not prevented by the order from issuing citations for violations of law provided the citations were not 'accompanied by a physical detention or restraint.'

On August 4, 1969, the trial court held an evidentiary hearing on the motion for issuance of a preliminary injunction and received a stipulation from all parties that the court might view a performance of a mude female dancer in one of the plaintiffs' places of business before ruling on the matter. On August 19, 1969, the court signed a preliminary injunction restraining the sheriff and the state from making any physical arrests of the plaintiffs or their employees at their places of business 'where the basis for said physical arrests is that there is a purported violation of local or state law in that nude entertainment is featured' except upon the condition that a valid warrant of arrest be obtained from a magistrate and that the issuance of the criminal complaint be based on probable cause. The preliminary injunction also required that the magistrate be informed of the preliminary injunction and be given a copy of the preliminary injunction and the memorandum opinion of the court. The preliminary injunction further provided that '* * * Defendants be and hereby are similarly enjoined from issuing citations under Penal Code § 853, (Sic § 853.6) for alleged violations of Penal Code §§ 314.1, 314.2, 647a., or 311.2, or similar sections (or for alleged violations of any other State or local ordinance, the gravamen of the offense being the presentation of nude entertainment) unless the citing officer is able to certify under penalty of perjury that he is familiar with the act presented by Brenda Joyce Caddell on March 14, 1969, as more fully described in Los Angeles Sheriff's Department Complaint Report file number 469--04750--0377--133, and that the nude act for which he is issuing a citation is substantially different in form and content from the 'Caddell' act so that in the opinion of the citing officer there is probable cause to believe that a lewd or obscene show is being presented in violation of the above-named Penal Code sections (or similar type statutes or ordinances); and said officer shall state with particularity the substantial differences which lead the officer to the conclusion that such citation under Penal Code § 853 (Sic § 853.6) should issue.' ¹

The second group of real parties in interest (Robert E. Poff, 13801 Inglewood Corporation, Arnold P. Darin, and Edward Grimes) filed separate complaints for declaratory and injunctive relief in respondent court. The allegations in each of these complaints were substantially the same. A temporary restraining order was issued in each case, similar in form to the restraining order issued in the Dozal matter, restraining the sheriff and the state from arresting the plaintiffs or their employees for any purported violations of the law arising from the presentation of 'nude entertainment' except upon the conditions set forth therein.

The petitioners filed demurrers to each of the four complaints. When the motions for preliminary injunctions came on for hearing, they were continued to October 9, 1969, to allow the petitioners time to seek appropriate relief before this court. All parties stipulated in the trial court that the temporary restraining orders previously issued might stay in full force and effect until the hearings on the motions for preliminary injunctions.

Although the granting of a preliminary injunction is an appealable order, this remedy is inadequate where, pending an appeal, the People are restrained from enforcing a statute whose validity is not challenged. Under such circumstances, the public interest requires a prompt determination of the issue whether or not the trial court's action is in excess of its authority. (City of Santa Monica v. Superior Court, 231 Cal.App.2d 223, 225, 41 Cal.Rptr. 824; Crittenden v. Superior Court, 61 Cal.2d 565, 568, 39 Cal.Rptr. 380, 393 P.2d 692.)

As a general rule an injunction will not be granted to protect a person from prosecution for the alleged commission of a criminal offense on a showing that he is not guilty of such offense or that the law does not apply to him. The court having jurisdiction over criminal offenses is the forum in which such questions of fact must be determined. (Fairchild v. Brock, 88 Cal.App.2d 425, 199 P.2d 9; Manchel v. County of Los Angeles, 245 Cal.App.2d 501, 54 Cal.Rptr. 53.)

An exception has been made to this general rule in both federal and state courts where constitutional statutes are being unconstitutionally applied to suppress constitutional rights guaranteed to all citizens by either the federal or state constitutions (Brock v. Superior Court, 12 Cal.2d 605, 86 P.2d 805; Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 65 P.2d 884, 109 A.L.R. 895; Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487; Wright v. Georgia, 373 U.S. 384, 83 S.Ct. 1240, 10 L.Ed.2d 349; Edwards v. South Carolina, 372 U.S. 299, 83 S.Ct. 680, 9 L.Ed.2d 697).

In determining whether these exceptional circumstances exist, a trial court must proceed with great caution. In City of Santa Monica v. Superior Court, Supra, 231 Cal.App.2d 223, 226, 41 Cal.Rptr. 824, 827, this standard of care is set forth as follows: '* * * (W)e regard it as beyond question that trial courts should be extremely cautious, and even hesitant and reluctant, when asked to enjoin law enforcement officials from enforcing an ordinance obviously approved and adopted by duly elected representatives of the people for the purposes of promoting and protecting public morality Prior to a trial on the merits.'

When we are concerned with First Amendment rights of a citizen, however, more protective procedural standards are compelled. Thus, in Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192, it was held that with the exception of a situation involving a legitimate emergency, even if a search is contemporaneous with an arrest, a search warrant must be secured prior to any search for or seizure of materials alleged to be obscene. ²

Inasmuch as the performance of a dance for an audience constitutes a method of expression that, in the absence of proof of obscenity, warrants the protection of the First Amendment (In re Giannini, 69 Cal.2d 563, 567, 72 Cal.Rptr. 655, 446 P.2d 535), we must determine in this case what the proper procedures to be followed by a trial judge are when a party seeking an injunction claims that a valid statute is being unconstitutionally applied to suppress the alleged exercise of First Amendment rights.

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, the United

States Supreme Court held that federal courts should abstain from enjoining state court criminal proceedings unless the defense of the state's criminal prosecution will not assure adequate vindication of First Amendment rights. According to Dombrowski, this condition exists when the state has invoked the criminal law in bad faith and for the purpose of harassing and disrupting the exercise of First Amendment rights. Federal courts are available to enjoin the invocation of state criminal process when that process is abusively invoked without any hope of ultimate success, but only to discourage the assertion of constitutionally protected rights.

Dombrowski was construed by the United States Supreme Court in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (in which the court held the doctrine of abstention applicable). In Cameron the court concluded that the 'special circumstances'...