Ratner v. Municipal Court of Los Angeles Judicial Dist., Los Angeles County

• Decision Date: 14 December 1967
• Citation: 256 Cal.App.2d 925,64 Cal.Rptr. 500
• Court: California Court of Appeals Court of Appeals
• Parties: Samuel RATNER, Petitioner and Appellant, v. The MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent, Civ. 31477.

Page 500

64 Cal.Rptr. 500

256 Cal.App.2d 925

Samuel RATNER, Petitioner and Appellant, v. The MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent,

Civ. 31477.

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

Dec. 14, 1967.

Atkins & Jacobson and Burton Jacobson, Beverly Hills, for appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty. and Michael T. Sauer, Deputy City Atty., for respondent.

FOURT, Associate Justice.

This is an appeal from an order denying a petition for a writ of prohibition.

Appellant herein filed a 'PETITION FOR WRIT OF PROHIBITION AGAINST COURT ACTING WITHOUT JURISDICTION and POINTS AND AUTHORITIES' in the Superior Court of Los Angeles on September 6, 1966. Therein it is stated, among other things, that petitioner was engaged in selling books in the County of Los Angeles, that on April 20, 1966, the City Attorney of the City of Los Angeles filed a complaint in the Municipal Court of Los Angeles Judicial District, in count I of which it was charged that on February 10, 1966, Ratner had violated the provisions of section 311.2 of the Penal Code; in count II of which it was charged that on the same date Ratner had violated the provisions of section 311.5 of the Penal Code. Further, the petition set forth that on May 4, 1966, Ratner had filed a demurrer to the complaint wherein he had asserted, first, that the complaint did not conform to sections 950 and 952 of the Penal Code in that the charge was 'not in any words sufficient' to give him notice of the offense of which he was accused and that the complaint was uncertain, indefinite and ambiguous and second, that the facts stated did not constitute a public offense. (A copy of the demurrer is attached to the petition as is a copy of the complaint.) Further, the petition recites that on June 30, 1966, and prior to a ruling on the demurrer to the complaint, the city attorney filed an amended complaint against Ratner. It is stated that a true copy of the amended complaint is attached to the petition. The supposed true copy of the amended complaint is in six counts and charges, in each count, a violation of section 311.2 of the Penal Code. Each count charges that Ratner did on February 10, 1966, 'wilfully and unlawfully and knowingly send and cause to be sent, bring and cause to be brought into this state for sale or distribution, and in this state prepare, publish, print, exhibit, distribute, offer to distribute, and have in his possession with intent to distribute and to exhibit and offer to distribute, obscene matter, to wit, a book entitled * * * *' and then followed the name of a book and its author, such as, for example, 'Bondage Bride of the Baron--by A. DeGranamour.' Parenthetically, it is to be noted that none of the publications was attached to the amended complaint as part of the pleadings. The petition further recites that 'on or about May 4, 1966, by demurrer timely made,' petitioner moved respondent court '* * * to dismiss and set aside said amended complaint'; that a copy of the demurrer is attached to the petition as an exhibit. Our examination of the clerk's transcript shows that there is one demurrer, namely, the one filed in reply to the original complaint. If we were permitted to engage in guess work, we might speculate that the parties may have stipulated, at the time the matter came on to be heard, that the demurrer to the complaint might be deemed the demurrer to the amended complaint. However, there is nothing to that effect in the record before this court, and there is no document titled demurrer to amended complaint, or anything similar to that in our record. The petition then recites that the judge made an order on July 6, 1966, overruling the demurrer to the amended complaint and set July 11, 1966, as the date for plea; that on the latter date, petitioner pleaded not guilty and the trial was set for September 19, 1966; that the case would go to trial on that date unless a writ of prohibition should otherwise order. The petition for the writ of prohibition was heard in the superior court and denied on September 13, 1966. A timely notice of appeal was filed.

The respondent asserts in its brief that the amended complaint contains seven counts of violation of Penal Code section 311.2 and one count of violating Penal Code section 311.5. The only record we have of the amended complaint is as an exhibit to the petition and it is as we have stated it heretofore and not as referred to by respondent in its brief.

We are aware of the recent case of People v. Noroff, 67 Cal.2d ---, 63 Cal.Rptr. 575, 433 P.2d 479, decided November 21, 1967, which seems to rely in large part upon what was said in Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707. In Zeitlin, however, there was appended to the complaint a copy of the book as a part of the pleadings. Such is not the case at hand.

By the filing of a demurrer (assuming that a demurrer was filed to the amended complaint) the petitioner raised an issue of law upon the facts stated in the pleading demurred to, namely, the amended complaint. As this court stated in Legg v. United Benefit Life Ins. Co., 182 Cal.App.2d 573, 578, 6 Cal.Rptr. 73, citing People ex rel....