Walker v. Meehan

• Decision Date: 24 August 1987
• Citation: 240 Cal.Rptr. 171,194 Cal.App.3d 1290
• Parties: Robert WALKER et al., Plaintiffs and Respondents, v. John J. MEEHAN, District Attorney etc., Defendant and Appellant. City of Emeryville, Defendant and Respondent; Robert R. Olson et al., Interveners and Respondents. A033077.
• Court: California Court of Appeals Court of Appeals

Page 171

240 Cal.Rptr. 171

194 Cal.App.3d 1290

Robert WALKER et al., Plaintiffs and Respondents, v. John J. MEEHAN, District Attorney etc., Defendant and Appellant City of Emeryville, Defendant and Respondent; Robert R. Olson et al., Interveners and Respondents.

A033077.

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

Aug. 24, 1987.

As Modified Sept. 18, 1987.

Colton C. Carmine, Deputy Dist. Atty., Oakland, for defendant and appellant, John J. Meehan.

Mark Doane, Emeryville, for plaintiff and respondent, City of Emeryville.

Andrew Nikitaris, Emeryville, for plaintiff and respondent, The Bank club.

Patrick W. Coyle, Novato, for intervenor-respondent, Estate of J.C. Tibbetts dba The Oaks Club Cardroom.

John A. Burgess, Emeryville, for plaintiff and respondent, Albert R. Olson dba The Sands Club.

David F. Offen-Brown, Alexander, Millner & McGee, Oakland, for plaintiffs and respondents, Key Enterprises, Inc., Santa Fe Club, and Social Club.

Brendon Brady, Santa Monica, for amicus curiae, Huntington Park Club.

Elwayne E. Smith, City Atty., Downey, for amicus curiae, City of Huntington Park.

David Manning Chodos, Los Angeles, for amicus curiae, Bell Gardens Bicycle Club.

Peter Wallin, Santa Monica, for amicus curiae, City of Bell Gardens.

RUSHING, ^* Associate Justice.

This is an appeal by the District Attorney of Alameda County from an order of the superior court granting a preliminary injunction which prevented any interference with the playing of the game of Pai Gow in licensed card rooms. In light of our agreement with the decision in Sullivan v. Fox (1987) 189 Cal.App.3d 673, 235 Cal.Rptr. 5, we reverse the order.

Factual and Procedural Background

Respondents are the owners of licensed card rooms in the City of Emeryville. Penal Code section 330 prohibits "gaming," which is defined as the playing for value of 12 enumerated games and "any banking or percentage game played with cards, dice, or any device...." ¹ Games not prohibited by statute may be regulated by municipalities. (In re Hubbard (1964) 62 Cal.2d 119, 125-127, 41 Cal.Rptr. 393, 396 P.2d 809, overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6, 81 Cal.Rptr. 465, 460 P.2d 137.) The City of Emeryville has not banned the playing of games which are not prohibited by state statute, but regulates card rooms by local ordinance.

When respondents learned of a decision of a superior court in Los Angeles which determined that the Chinese game of Pai Gow, when played in a specific manner, was not a banking or percentage game, they approached the Emeryville Chief of Police to discuss their intention to offer the game of Pai Gow in their card rooms. On January 24, 1985, Chief of Police Joseph Maltby gave "provisional" approval to the request to play Pai Gow, subject to the issuance of legal opinions on the issue by the Attorney General's office and the district attorney.

Respondents engaged new employees and trained them in the rules of Pai Gow and, in some cases, expended funds in refurbishing the clubs to accommodate the playing of Pai Gow. (CT 97-98) Thereafter, respondents offered the game of Pai Gow at their establishments in accordance with the rules of play described in the Los Angeles Superior Court order. ²

In late April of 1985, the Attorney General issued a letter which concluded that Pai Gow was only illegal when played as a banking or percentage game. The letter defined a banking game as "[a] game conducted by one or more persons where there is a fund of money offered and against which everyone has a right to bet. The fund is ready to be staked on all bets others may choose to make against the banker; the banker is responsible for payment of all funds, taking in all that is won and paying out all that is lost; the fund is called the bank and a person who conducts the game is called the banker." The letter also stated that rotation of the bank among the players would not eliminate the banking element of the game. A percentage game was defined as one where the house has an interest in the outcome of the game through the taking of an amount of the winnings or collecting only when there is a winner.

On May 15, 1985, Police Chief Maltby received a consultant's report from Donald Moore of the San Jose Police Department. Mr. Moore had conducted an on-site investigation of the method of playing Pai Gow in Emeryville, and concluded that the Emeryville game was an illegal banking and percentage game. Assistant District Attorney Richard Iglehart also informed Chief Maltby that he had observed the game in Emeryville and had determined that it was both a banking and percentage game.

On May 31, 1985, the owners of the Social Club, the Bank Club, and the Key Club filed an action for declaratory relief against the district attorney and the City of Emeryville in the Alameda County Superior Court seeking a judicial determination that the game of Pai Gow, as played in Emeryville, was not a banking or percentage game. On June 6 at a city council meeting, the district attorney stated that persons playing Pai Gow in Emeryville would be arrested beginning June 11, 1985.

On June 11, 1985, the respondents filed a first amended complaint which added a cause of action requesting an injunction restraining the city and county authorities from closing the card rooms and arresting customers until the validity of the threatened application of Penal Code section 330 was determined. The court refused to issue a temporary restraining order. The evidence conflicts as to whether or not some clubs stopped playing Pai Gow at this time. It is undisputed that the Key Club continued to play. Changes were made in the manner the game was played to eliminate the banking aspect of the game, by having individual players play against each other. Other changes were made to eliminate what was perceived to be the percentage aspect of the game. The declaration of Randall Horton of the Emeryville Police Department states that the Key Club began charging table rent at a rate of $2 for 10 minutes of play, and no longer took a percentage of the "winning pot." The declaration of Bruce Lovick, manager of the Key Club, states that the club, at some point in time, utilized the same schedule discussed in the Los Angeles Superior Court order, with the substitution of a straight 5 percent fee collected from the amounts wagered. The Los Angeles schedule provided for a different charge based upon the amount bet, ranging from $1 for bets of $10 to $25, with a maximum of $80 for bets of $1,501 to $2,000. Lovick offered to use the Los Angeles schedule if the police objected. Police officers observing the games, however, determined that the rules had again been changed and that the house was collecting a percentage from winnings and was acting as the bank. On June 17, the Emeryville police at the Key Club arrested all participants in a Pai Gow game, as well as the club manager and house dealer.

On July 1, 1985, a hearing was held on respondents' request for a preliminary injunction. On July 8, 1985, the superior court filed its order granting a preliminary injunction enjoining the district attorney "from preventing, or otherwise interfering," with the playing of Pai Gow and specifically finding that Pai Gow, when played as described in the court's order, was not a banking or percentage game. The order stated that a rental fee could be collected from a player's winnings, the amount wagered, or for the time that each participant played.

On August 15, 1985, this court denied a petition for writ of mandate filed by the district attorney. On August 16, 1985, the superior court filed its order in intervention allowing the owner of the Sands Club to file a complaint in intervention. On August 16, 1985, the district attorney filed a notice of appeal from the order granting the preliminary injunction.

On January 30, 1987, after briefing was completed in this appeal, Division Four of this district filed its opinion in Sullivan v. Fox, supra, 189 Cal.App.3d 673, 235 Cal.Rptr. 5. Sullivan involved an order of the San Mateo County Superior Court that was identical to the preliminary injunction order in this case. ³ The Sullivan opinion analyzes the language of Penal Code section 330 and concludes that a banking game is a game that is played with the house as a participant in the game, taking on all players, and paying all winnings and losses from the "bank". The court also defined a percentage game as any game in which the house collects money calculated as a portion of the wagers made or sums won in play. ⁴ When fees for use of space or facilities are calculated upon the amount of time a participant plays, it does not convert the game to a percentage game. Apparently, the evil sought to be controlled by section 330 is the house having an interest in the game, whether through acting as banker or taking a percentage of the wagers. (Id., at pp. 678-679, 235 Cal.Rptr. 5; People v. Ambrose (1953) 122 Cal.App.2d Supp. 966, 970, 265 P.2d 191.)

Subsequent to filing of the Sullivan opinion, we granted the requests of respondents in this case to submit supplementary briefs on the issues raised by Sullivan. Among other points raised by the supplementary briefs, respondents argue that Sullivan renders Penal Code section 330 unconstitutionally vague.

Discussion

The only issue initially argued by the parties to this appeal is the trial court's jurisdiction to issue an injunction which interferes with the enforcement of a criminal statute. (Code Civ.Proc., § 526, 2d subd. 4; Civ.Code, § 3423, subd. Fourth.)

"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. [Citations.]" (...