Uptown Enterprises v. Strand

• Decision Date: 18 August 1961
• Court: California Court of Appeals Court of Appeals
• Parties: UPTOWN ENTERPRISES, (a corporation), Plaintiff and Appellant, v. Bert STRAND et al., Defendants and Respondents. Civ. 6458.

Page 486

15 Cal.Rptr. 486

195 Cal.App.2d 45

UPTOWN ENTERPRISES, (a corporation), Plaintiff and Appellant, v. Bert STRAND et al., Defendants and Respondents.

Civ. 6458.

District Court of Appeal, Fourth District, California.

Aug. 18, 1961.

Quintin Whelan, San Diego, for appellant.

Henry A. Dietz, County Counsel for San Diego County, and Duane J. Carnes, Deputy County Counsel, San Diego, for respondents.

COUGHLIN, Justice.

This is an appeal from a judgment in favor of the defendants, the respondents herein, after an order sustaining on objection to the introduction of any evidence by the plaintiff, the appellant herein, upon the ground that the complaint upon which the action is based does not state facts sufficient to constitute a cause of action, and from an order denying plaintiff's motion for a new trial.

An order denying a motion for a new trial is not appealable. Armenta v. Churchill, 42 Cal.2d 448, 451, 267 P.2d 303. The appeal therefrom should be dismissed

'The right of a defendant to move for judgment upon the pleadings, when the complaint fails to state a cause of action, is well settled in this state. [Citations.] Upon such motion, however, the court cannot consider any matter outside of the complaint, or any defense thereto in the answer, but the motion is to be determined upon the same principles as would be a demurrer to the complaint upon the same ground. All the facts alleged in the complaint are admitted for the purposes of the motion, and the court is to determine whether these facts constitute a cause of action. If the necessary facts are contained in the complaint, the objection that they are defectively set forth, or are in an ambiguous or uncertain form, will be unavailing. There must be an entire absence of some fact or facts essential to constituting a cause of action.' Hibernia Savings & Loan Soc. v. Thornton, 117 Cal. 481, 482-483, 49 P. 573, 574; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 151, 157 P.2d 1; Miller v. McLaglen, 82 Cal.App.2d 219, 223, 186 P.2d 48; Gallagher v. California Pac. T. & T. Co., 13 Cal.App.2d 482, 486, 57 P.2d 195.

The subject complaint purports to state two caused of action. In the first thereof the following facts are alleged: The plaintiff is the owner and operator of a drive-in theater in the unincorporated area of the County of San Diego. The defendant Strand is the sheriff of the County of San Diego and the remaining defendants are deputy sheriffs of that county. On December 12, 1958, during a performance at the theater, the plaintiff summoned a deputy sheriff to arrest a person who had been creating a disturbance. Two deputy sheriffs responded to the plaintiff's request; entered the theater; in turn summoned six other deputy sheriffs, who also entered the theater; and, thereafter, these deputy sheriffs ordered all patrons to leave the theater and ordered the theater closed. The patrons, who were in automobiles, left the theater as ordered, and as they did so the deputy sheriffs, without the 'benefit of any search warrant, warrant of arrest or other legal process' searched each automobile. On March 20, 1959, the defendants Robbins and Clements entered the theater; without 'any warrant of arrest, search warrant or other legal process' searched all of the automobiles in the theater, those that left the theater, and those that attempted to enter the theater; and forced the patrons to get out of their automobiles in order to enable the officers to search such automobiles. On these two occasions, i. e., December 12, 1958, and March 20, 1959, the defendants arrested certain persons on the theater premises. It is alleged that some of these arrests were made 'without probable cause' and that others were made on the basis of evidence obtained by the 'unlawful search and seizure of the automobiles of the patrons of the plaintiff whose automobiles were searched without any search warrant and without probable cause for searching the same.' Following the December 12th incident the defendants caused the newspaper publication of a story to the effect that they had closed the plaintiff's theater, intending thereby to cause readers of the newspaper to believe that the plaintiff's theater had been closed permanently. Following the March 20th incident, the defendants caused the newspaper publication of a highly colored account of what occurred at the theater on that date with the intention of having the readers thereof believe that the plaintiff's theater 'was a resort of persons of low character and of persons who were habitual violators of the law; and that such persons frequented the premises of plaintiff in large numbers, and that plaintiff encouraged illegal activities upon' its premises. On many occasions subsequent to December 12, 1958, the defendants entered the plaintiff's theater without invitation from the plaintiff and without any search warrant or other legal process, patrolling he area within the theater, showing spotlights upon the automobiles of patrons, and 'trespassing upon the plaintiff's premises.' The foregoing described 'actions of the defendants' were done ofr the purpose of (1) compelling and attempting to compel the plaintiff to change its policy of showing four motion pictures in an evening, of charging only $1 for each automobile and its occupants, and of showing those types of motion pictures known as 'westerns', 'horror pictures,' 'war pictures,' and 'space pictures'; (2) harassing and interfering with the plaintiff in the operation of its theater; (3) causing patrons and prospective patrons of plaintiff's theater to believe that its theater was a place where criminals and persons of bad repute congregated and that the plaintiff encouraged and condoned illegal activities; and (4) generally giving the plaintiff's theater a bad reputation with the public. The defendants have not attempted to enter other drive-in motion picture theaters in the community for the purpose of searching the automobiles therein, patrolling such theaters, or flashing red lights upon the automobiles of the partrons thereof, and their actions with reference to the plaintiff's theater 'constitute a discriminary [sic] treatment of the plaintiff.' The defendants have threatened to again attempt 'mass invasions of plaintiff's theatre'; to interfere with the business relations between plaintiff and its theater patrons; to 'trespass' upon its premises; and to search the automobiles of the patrons without warrants or other legal process. By reason of the acts of the defendants the plaintiff has suffered damage 'the amount and extent of which cannot readily be ascertained.'

The allegations of the complaint adequately set forth the intent of the defendants (Mendelson v. McCabe, 144 Cal. 230, 233, 77 P. 915; Woodroof v. Howes, 88 Cal. 184, 190, 26 P. 1111; Brison v. Brison, 75 Cal. 525, 527, 17 P. 689), their purpose in conducting themselves as alleged, and the threats of similar conduct in the future. Collins v. Vickter Manor, Inc., 47 Cal.2d 875, 883, 306 P.2d 783; Montezuma Improvement Co. v. Simmerly, 181 Cal. 722, 726, 189 P. 100; Mendelson v. McCabe, supra, 144 Cal. 230, 233, 77 P. 915; Huffman v. Coulter, 55 Cal.App. 173, 174, 203 P. 125. However, we have omitted from a recital of the facts contained in the complaint several allegations clearly objectionable as conclusions of law, the truth of which would not be admitted by the subject motion. Vallindras v. Massachusetts Bonding & Ins. Co., 42 Cal.2d 149, 151, 265 P.2d 907; generally see 2 Cal.Plead. [Cont.Ed. Bar] pp. 428-433. On the other hand we have disregarded several ambiguities which appear throughout the complaint because, although such a motion may serve the office of a general demurrer it is not a vehicle for objections which may be urged by special demurrer. Redondo Imp. Co. v. City of Redondo Beach, 3 Cal.App.2d 299, 302, 39 P.2d 438; Bauer v. Neuzil, 66 Cal.App.2d Supp. 1020, 1023, 152 P.2d 47. When an objection to the sufficiency of a complaint is made for the first time at the trial the allegations therein will be construed liberally and every reasonable intendment will be indulged in its favor. Gallagher v. California Pac. T. & T. Co., supra, 13 cal.App.2d 482, 486, 57 P.2d 195.

Interpreted in favor of the complaint, the allegations thereof establish that the defendants have engaged and threatened to continue to engage in a course of conduct upon and about the premises of plaintiff for the purpose of harassing the plaintiff in the operation of its theater, causing its patrons to believe that its theater was a place where criminals and persons of bad repute congreated, and to compel the plaintiff to change its policies with respect to the length of the program, the price charged for admission, and the type of motion pictures shown; and that this course of conduct has and will continue to cause damage to the plaintiff in an unascertainable amount.

The facts alleged clearly state a cause of action for injunction on two grounds, viz., (1) to restrain an unlawful interference with a lawful business and (2) to enjoin threatened repeated trespasses.

'Everyone has the right to establish and conduct a lawful business and is entitled to the protection of organized society, through its courts, whenever that right is unlawfully invaded. Such right existing, the commission of an actionable wrong is established against any one who is shown to have intentionally interfered with it without justifiable cause or excuse.' Buxbom v. Smith, 23 Cal.2d 535, 546, 154 P.2d 305, 310. Compare analagous principles applied to interference with contract relations as considered in Collins v. Vickter Manor, Inc., supra, 47 Cal.2d 875, 883, 306 P.2d 783; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 39, 172 P.2d 867; Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 35, 112 P.2d 631; Freed v. Manchester Service, Inc., 165 Cal.App.2d 186, 188, 331 P.2d 689; Remillard-Dandini Co. v. Dandini, 46 Cal.App.2d 678,...