Reliable Enterprises, Inc. v. Superior Court

• Decision Date: 24 July 1984
• Citation: 158 Cal.App.3d 604,204 Cal.Rptr. 786
• Court: California Court of Appeals Court of Appeals
• Parties: RELIABLE ENTERPRISES, INC., a California corporation and Max Delgadillo, Petitioners, v. SUPERIOR COURT of the State of California for the County of Sacramento, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 22460.

Page 786

204 Cal.Rptr. 786

158 Cal.App.3d 604

RELIABLE ENTERPRISES, INC., a California corporation and Max Delgadillo, Petitioners, v. SUPERIOR COURT of the State of California for the County of Sacramento, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 22460.

Court of Appeal, Third District, California.

July 24, 1984.

Hecht, Diamond & Greenfield, Roger Jon Diamond, Pacific Palisades, and C. M. Starr, II, Sacramento, for petitioners.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and W. Scott Thorpe, Deputy Attys. Gen., for real party in interest.

SIMS, Associate Justice.

Petitioners Reliable Enterprises, Inc. and Max Delgadillo, an officer of Reliable, were adjudged in contempt of court for eight violations of a preliminary injunction that restrained them from permitting or allowing lewd acts to occur on the premises of the Adult World Bookstore (Adult World). Petitioners were fined $8,000. We issued a writ of certiorari to review the proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This is not the first time petitioners have been enjoined from allowing lewd acts on On April 23, 1982, the Sacramento County District Attorney's Office filed a new complaint (Sacramento County Superior Court No. 303062) praying for, inter alia, a new preliminary injunction under California Penal Code sections 11225 through 11235 and Business and Professions Code sections 17200 through 17208 ¹. The district attorney dismissed the prior complaint (No. 275319) on July 15, 1982, in order to proceed with the instant case.

                their premises.  This action finds its roots in a preliminary injunction issued against petitioner in 1978 based on a complaint filed pursuant to the Red Light Abatement Act (Pen.Code, § 11225 et seq.)  (Sacramento County Superior Court No. 275319).   That injunction enjoined petitioners from "allowing the occurrence, continuance or recurrence of acts of lewdness or assignation upon the premises ... known as the ADULT WORLD BOOKSTORE."   That lawsuit was held in abeyance while one defendant in the case appealed the issuance of the preliminary injunction.  In July 1980, we upheld that injunction in People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 166 Cal.Rptr. 519
                

After reviewing numerous affidavits describing sordid details of sodomy, assignation, solicitation, oral copulation and other lewd acts occurring regularly on the premises of Adult World, Judge Lloyd A. Phillips, Jr. issued the injunction in this case on September 20, 1982, restraining petitioners "from engaging in or in any manner allowing or permitting directly or indirectly the occurrence, continuance or recurrence of acts of lewdness, assignation or prostitution."

On October 26, 1982, the District Attorney by ex parte motion obtained an order to show cause why petitioners should not be held in contempt of court for violation of the preliminary injunction. Submitted in support of issuance of the order to show cause was an affidavit of officer Bob Gully which outlined in detail lewd acts he witnessed on the premises of Adult World on October 7, 1982. Another affidavit by deputy district attorney Terence Brown also alleged violations of the injunction on October 7.

A hearing on the alleged contempt was conducted before Judge Phillips. Testimony demonstrated the previous lewd and illegal activity had continued unabated since issuance of the injunction and nothing but a perfunctory effort had been made to curb the activity. Over objection, and without causing the initiating affidavits to be amended (see Code Civ.Proc., § 1211.5, subd. (b)), the trial court admitted testimony that petitioners had allowed lewd acts to occur at Adult World on November 24, 1982.

At the conclusion of the contempt hearing, Judge Phillips made an oral finding that defendant Reliable had not taken any reasonable steps to comply with the injunction. The court also filed a written order adjudging Reliable Enterprises, Inc., and its corporate officer, Max Delgadillo in contempt and finding, inter alia, "each of the 8 acts of lewd behavior observed on October 7, 1982 and November 24, 1982 by Officer GULLY was the result of Defendants'willful failure to obey the preliminary injunction...." (Emphasis added.) Five lewd acts occurred on October 7; three on November 24.

Petitioners then obtained from this court a writ of certiorari to review the contempt order. They contend the evidence was insufficient to support a finding the violation of the injunction was willful, the injunction was unlawfully ambiguous, the affidavits in support of the order to show cause were inadequate to establish jurisdiction to adjudicate petitioners' contempt, and the trial court had no jurisdiction to fine them for eight acts of contempt.

We conclude petitioners were denied their constitutional rights to reasonable notice of the charges related to conduct on November 24 and we annul the three adjudications of contempt attributable to that conduct; we affirm the five adjudications of contempt attributable to conduct occurring on October 7.

DISCUSSION

I

Before addressing petitioners' specific contentions, we set forth some principles generally applicable to this proceeding:

Code of Civil Procedure section 1209, subdivision (a)(5), provides that disobedience of any lawful judgment, order or process of the court constitutes a contempt of the authority of the court.

"Direct" contempt is that committed in the immediate view and presence of the court or of the judge in chambers; all other contempts, such as this one, which occur outside the presence of the court, are "indirect." (See Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616, 130 Cal.Rptr. 847.) A contempt is punishable by a fine not exceeding $1000 or by imprisonment not exceeding five days, or both. (Code Civ.Proc., § 1218.)

"California courts have recognized that corporations are proper criminal defendants. As early as 1907 a California court held that ' "Private corporations in respect to their liability for the acts of their agents or servants stand before the law on the same footing as individuals." [Citation.]' (People v. Palermo Land & Water Co. (1907) 4 Cal.App. 717, 721 (hg. den. Mar. 28, 1907, as reported in 4 Cal.App. at p. 722 ); see generally, 17 Cal.Jur.3d § 39, and cases cited therein.)" (Granite Construction Co. v. Superior Court (1983) 149 Cal.App.3d 465, 467, 197 Cal.Rptr. 3.)

A private corporation may be adjudged in contempt for violation of an injunction. (Golden Gate M. Co. v. Superior Ct. (1884) 65 Cal. 187, 190, 3 P. 628.)

"Because of the penalties imposed, a proceeding to punish an accused for contempt is criminal in nature, and guilt must be established beyond a reasonable doubt. [Citation.] ... The power to weigh evidence, however, rests exclusively with the trial court. [Citations.] Accordingly, it is well settled that our responsibility upon review is merely to ascertain whether there existed any substantial evidence to sustain the jurisdiction of the trial court. [Citations.]" (In re Coleman (1974) 12 Cal.3d 568, 572-573, 116 Cal.Rptr. 381, 526 P.2d 533, followed in Ross v. Superior Court (1977) 19 Cal.3d 899, 913, 141 Cal.Rptr. 133, 569 P.2d 727.)

II

A

Petitioners contend the evidence did not support a finding of "willful disobedience." We disagree.

An adjudication for indirect contempt requires that the record contain substantial evidence that the contemner willfully and contemptuously refused to obey the order of the court. (Oliver v. Superior Court (1961) 197 Cal.App.2d 237, 240, 17 Cal.Rptr. 474.) However, intent to violate an order may be inferred from the circumstances. (City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 518, 241 P.2d 243.)

The evidence adduced at the hearing demonstrates there was no change in the manner of doing business after the injunction was issued. Sergeant Bob Lyon testified he had been in Adult World 10 to 15 times since the injunction was issued and had seen lewd acts on the premises during each visit. All manner of lewd acts, including sodomy, masturbation, exhibitionism, assignation, prostitution, and oral and anal copulation continued on a daily basis in Sergeant Lyon also testified that, on each visit, he found open glory holes; ² and he had never been on the premises where he did not see semen on the floor of almost every booth, and several times, he saw human feces, condoms, and underwear. According to Sergeant Lyon, no agent or employee of Reliable did anything to discourage the lewd conduct.

plain view of anyone walking down the aisles of the bookstore.

Petitioner Delgadillo himself testified he visited the premises of Adult World "every single day." Occasionally, Delgadillo would visit Adult World two or three times a day, and he would always visit the area of the store where the film booths were located. Delgadillo testified he had a printed sign prepared prohibiting loitering and lewd acts on the premises, but he said the signs were torn down and replaced in what he described as a "continuing process." However, Sergeant Lyon never saw the sign described by petitioner. Delgadillo also had three of his employees sign a memo explaining the terms of the injunction, but he apparently did nothing more to see to it that employees of the corporation would do anything to discourage lewd acts on the premises. For example, clerks were not required to visit the areas where lewd acts were occurring regularly.

Further evidence of petitioners' willful disregard of the injunction is found in the testimony of Thomas E. Rutkowski, who worked as a clerk at Adult World between August and October 25, 1982. After issuance of the injunction, Rutkowski noticed semen constantly on the floor and males "cruising" regularly on the premises. Rutkowski also observed condoms, underwear and human feces on the floor...