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

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. PROJECTION ROOM THEATRE et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. STAN'S BOOKS et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plalntiffs-Appellants, v. BOOK BIN et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. GALAXY BOOK STORE et al., Defendants-Respondents.

Joseph P. BUSCH, etc., et al., Plaintiffs-Appellants, v. JASON'S BOOKS et al., Defendants-Respondents.

Civ. 44184 to 44187, Civ. 43610.

Decided: December 27, 1974

Joseph P. Busch, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head of Appellate Div., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., and Burt Pines, City Atty. of City of Los Angeles, and Edward A. Schlotman, Deputy City Atty., for plaintiffs and appellants. Fleishman, McDaniel, Brown & Weston, David M. Brown, Harrison W. Hertzberg, and Joshua Kaplan, Los Angeles, for defendants and respondents.

In these consolidated appeals plaintiffs, the District Attorney of Los Angeles County and the City Attorney of the City of Los Angeles, attack judgments of dismissal in five separate civil actions brought by them seeking injunctive and other relief designed to stop the continued operation of five so-called ‘adult’ book stores and ‘adult’ theatre establishments. Since the judgments of dismissal were in each case based upon orders sustaining, without leave to amend, general demurrers on the ground that the complaints failed to state facts sufficient to constitute a cause of action, the allegations in each of the complaints must be accepted as true.

According to the complaints, the five places of business described therein were being operated by the defendants ‘for the purpose of lewdness.'1 All the complaints followed a single form, and alleged that ‘[h]eretofore and prior to the filing of this complaint acts of lewdness have taken place in and upon said premises and are now taking place therein and thereon.’ In each case, however, the complaint specified ‘[t]hat said lewdness consists of past and continuing exhibition of motion picture films and magazines'2 at the business establishment in question. The complaints in each case continued by alleging that all of such motion pictures and magazines ‘are lewd and obscene under the laws of this State.’ In this respect it was specified that (a) the dominant theme of the films and magazines, ‘taken as a whole, appeals to the prurient interest in sex,’ (b) that such ‘films and magazines are patently offensive because they affront contemporary community standards relating to the description or representation of sexual matters,’ and (c) that said ‘pictures and magazines are utterly without social value.’

Each of the complaints attached and incorporated by reference exhibits which included police crime reports detailing the physical layout of each of the premises, copies of examples of magazines exhibited, and so-called time and motion studies of films.3

Each of the complaints further alleged (1) that the premises were being operated for profit (a matter explained in more detail in the exhibits which related the charges made for ‘browsing’ among the magazines, for the purchase thereof, and for viewing the various motion picture films), and (2) that ‘unless restrained and enjoined therefrom, defendants, and each of them, will continue to maintain and conduct said premises for the purposes of lewdness and will continue to permit such acts to take place therein and thereon.’ The remaining allegations of the complaints were essentially conclusory in nature; they consisted of statements concerning the law of California in respect of public nuisances in general and in particular the abatement of premises used for the purpose of lewdness.

The prayer in each of the complaints sought preliminary and permanent injunctive relief restraining defendants from conducting the premises as a public nuisance and from continuing the acts of ‘lewdness' (the exhibition of the obscene material) on the premises. The prayer further asked that the premises be abated in accordance with the provisions of sections 11230 and 11231 of the Penal Code by closure for one year, the sale of all fixtures, and application of the proceeds in accordance with such sections. Each prayer included, as well, the prayer ‘[t]hat plaintiff be granted such other and further relief, as to this court may seem fit and just.’

In each instance the court, in sustaining the demurrer, indicated that it was bound to do so by the holding of this court in Harmer v. Tonylyn Productions, Inc., 23 Cal.App.3d 941, 100 Cal.Rptr. 576, that the exhibition of a motion picture, however, obscene, in a closed theatre (a) was not a public nuisance and (b) did not constitute a use of such theatre for the purpose of ‘lewdness, assignation, or prostitution’ under the Red Light Abatement Law (Pen.Code, § 11225 et seq.).

Defendants did not contend in the trial court, nor do they contend on this appeal, that the complaints did not adequately allege that the motion pictures and magazines being exhibited and sold at the five places of business described in the complaints were obscene. We may, therefore, spare the reader of this opinion any detailed description of them. Suffice it to say that if the allegations of the complaints as supplemented by the exhibits are true, the motion pictures and the magazines exhibited at defendants' places of business constitute hard-core pornography and are obscene when judged by the standard set forth in section 311 of the Penal Code, as that section has been interpreted by the appellate courts of this state. Though this standard may, by retaining the ‘utterly without redeeming social importance’ requirement, define obscenity more narrowly than it might have under Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, it is a valid definition of matter excluded from protection under the constitutional guarantees of freedom of speech. (People v. Enskat, 33 Cal.App.3d 900, 912, 109 Cal.Rptr. 433.)

The question posed by this appeal is, therefore, rather narrow in scope: it is simply whether there is any relief which the plaintiffs may be awarded by the court on account of defendants' alleged conduct consisting of the operation of book stores exhibiting obscene magazines and viewing facilities exhibiting obscene motion pictures, which exhibition is continuously engaged in but visible only to those adults who voluntarily choose to see it and who have paid an admission price therefor.

Appellants advance two legal theories in support of their contention that the complaints do state causes of action. They are:

(1) The activities of defendants constitute public nuisances under the provisions of sections 3479 and 3480 of the Civil Code and section 370 of the Penal Code, which make a public nuisance ‘anything which . . . is indecent, or offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property’ and which ‘affects at the same time an entire community or neighborhood, or any considerable number of persons.’

(2) Defendants' places of business constitute nuisances under the provisions of section 11225 of the Penal Code, which in pertinent part provides: ‘Every building or place used for the purpose of . . . lewdness, assignation, or prostitution . . . is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.’

Appellants are obliged to fit the allegations of their complaints into some category of conduct declared by statute to be a public nuisance in view of the decision of our Supreme Court in People v. Lim, 18 Cal.2d 872, 118 P.2d 472. In that case the court rejected the contention that a public nuisance should be defined ‘for the purposes of an injunction as any repeated and continuous violation of the law’ (18 Cal.App.2d at p. 880, 118 P.2d at p. 476) and imposed the requirement that there be a legislative declaration ‘establishing those standards of public morality, the violations of which are to constitute public nuisances within equity's jurisdiction.’ (18 Cal.2d at p. 879, 118 P.2d at p. 476.) The issues are, therefore, as follows:


1. Can the continuous exhibition in a book store, or theatre specializing in pornography, of obscene motion pictures and magazines constitute an activity which is ‘indecent or offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property’ and which ‘affects at the same time an entire community or neighborhood, or any considerable number of persons'?

2. Can the operation of book stores or theatres in such fashion constitute them ‘places used for the purpose of . . . lewdness, assignation, or prostitution?’

The Conduct of Defendants as Described in the Complaints is a Public Nuisance

The argument by both sides with respect to the issue whether the defendants' conduct as described in the complaints comes within the provisions of sections 3479 and 3480 of the Civil Code and section 370 of the Penal Code defining a public nuisance is confined substantially to a discussion of two cases: Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941, 100 Cal.Rptr. 576, and Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446.

In Harmer this court affirmed on appeal a judgment of dismissal based upon a ruling sustaining a demurrer (without leave to amend) to a complaint seeking ‘an injunction to prevent the exhibition in a closed theater of a motion picture . . . and to abate it as a public nuisance.’ One of the bases upon which the appellant sought to support the complaint was the provisions of sections 3479 and 3480 of the Civil Code defining public nuisance. The court found these sections inapplicable. Other than its quotation of section 3480, defining a public nuisance as ‘one which affects at the same time an entire community or neighborhood,’ the entire discussion of the public nuisance question comprised two short paragraphs as follows:

‘The film involved was shown only in a closed theater. Only those persons could view it who had paid the admission price and who had entered the theatre. Thus, only those members of the community were exposed to the film who voluntarily chose to see it. This is not a case where the community as a whole is forced to submit involuntarily to vile odors (Fisher v. Zumwalt, 128 Cal. 493, 61 P. 82) or air pollution (Wade v. Campbell, 200 Cal.App.2d 54, 19 Cal.Rptr. 173, 92 A.L.R.2d 966) or to the unwelcome presence of animals (Hayden v. Tucker, 37 Mo. 214). In the statute's terms, the alleged nuisance at bench did not ‘. . . affect[s] at the same time an entire community or neighborhood, . . .’ (Civ.Code, § 3480) (italics added).

‘At bench, only that portion of the public could see the film which voluntarily chose to enter the theatre. The nuisance was not one which is inflicted or imposed upon the public.’

(Harmer v. Tonylyn Productions, Inc., 23 Cal.App.3d at p. 943, 100 Cal.Rptr. at p. 576.)

The above discussion was an alternative ground for the court's decision inasmuch as it also found there were no allegations establishing the plaintiff's standing to bring the action as a private citizen. This does not detract from its value as precedent. However, the opinion does not indicate whether the exhibition was part of a continuous or repeated course of conduct or merely an isolated incident, nor does it specify the basis of the court's conclusion that such exhibition did not ‘affect[s] at the same time an entire community or neighborhood.’ Certainly Harmer does not stand for the proposition that the continuous operation of theatres specializing in pornographic presentations (obscene motion pictures) could have no effect upon anyone except those persons who ‘voluntarily’ chose to enter the theatre. If it did stand for any such proposition, we would be compelled respectfully to disagree with it.

The same subject is exhaustively discussed by the United States Supreme Court in Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. In justifying the exclusion of an obscene motion picture from constitutional protection under the First Amendment, over the objection that it was ‘exhibited for consenting adults only,’ the Court said:

‘We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante, [413 U.S.] at 18–20 [93 S.Ct. 2607, at 2612–2613 (1973)]; Stanley v. Georgia, supra [394 U.S. 557] at 567 [, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969)]; Redrup v. New York, 386 U.S. 767, 769, [87 S.Ct. 1414, 1415, 18 L.Ed.2d 515] (1967), this Court had never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-seven Photographs, supra, [402 U.S. 363,] at 376–377, [91 S.Ct. 1400, 1408–1409, 28 L.Ed.2d 822] (opinion of White, J.); United States v. Reidel, 402 U.S. [351,] at 354–356 [, 91 S.Ct. 1410, 1411–1413, 28 L.Ed.2d 813 (1971)]. Cf. United States v. Thirty-seven Photographs, supra, [402 U.S. 363,] at 378 [, 91 S.Ct. 1400, 1409, 28 L.Ed.2d 822 (1971)] (Stewart, J., concurring). ‘In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that ‘the primary requirements of decency may be enforced against obscene publications.’ [Near v. Minnesota, 283 U.S. 697, 716, [51 S.Ct. 625, 15 L.Ed. 1357] (1931)].' Kingsley Books, Inc., v. Brown, supra, [354 U.S. (436,)] at 440 [, 77 S.Ct. [1325], at 1327, 1 L.Ed.2d 1469].

‘In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby.7

‘[7] It is conceivable that an ‘adult’ theater can—if it really insists—prevent the exposure of its obscene wares to juveniles. An ‘adult’ bookstore, dealing in obscene books, magazines, and pictures, cannot realistically make this claim. The Hill-Link Minority Report of the Commission on Obscenity and Pornography emphasizes evidence (the Abelson National Survey of Youth and Adults) that, although most pornography may be bought by elders, ‘the heavy users and most highly exposed people to pornography are adolescent females (among women) and adolescent and young adult males (among men).’ The Report of the Commission on Obscenity and Pornography 401 (1970). The legitimate interest in preventing exposure of juveniles to obscene material cannot be fully served by simply barring juveniles from the immediate physical premises of ‘adult’ bookstores, when there is a flourishing ‘outside business' in these materials.

Rights and interests ‘other than those of the advocates are involved.’ Breard v. Alexandria, 341 U.S. 622, 642, [71 S.Ct. 920, 932, 95 L.Ed. 1233] (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime.8

‘[8] The Report of the Commission on Obscenity and Pornography 390–412 (1970) (Hill-Link Minority Report). For a discussion of earlier studies indicating ‘a division of thought [among behavioral scientists] on the correlation between obscenity and socially deleterious behavior,’ Memoirs v. Massachusetts, supra [383 U.S. 413,] at 451, [86 S.Ct. 975,] and references to expert opinions that obscene material may induce crime and antisocial conduct, see id., at 451–453, [86 S.Ct. 975] (Clark, J., dissenting). As Mr. Justice Clark emphasized:

“While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.

“Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.' Id., at 452—453, [86 S.Ct. 975] (footnotes omitted).

Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:

“It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there. . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places—discreet, if you will, but accessible to all—with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.' 22 The Public Interest 25–26 (Winter, 1971).9 (Emphasis added.)

‘[9] See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22 The Public Interest 3 (Winter 1971); van den Haag, in Censorship: For & Against 156–157 (H. Hart ed. 1971).

As Mr. Chief Justice Warren stated, there is a ‘right of the Nation and of the States to maintain a decent society . . .,’ Jacobellis v. Ohio, 378 U.S. 184, 199, [84 S.Ct. 1676, 1684, 12 L.Ed.2d 793] (1964) (dissenting opinion.) 10 See Memoirs v. Massachusetts, 383 U.S. 413, 457, [86 S.Ct. 975, 996, 16 L.Ed.2d 1] (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256–257 [72 S.Ct. 725, 730–731, 96 L.Ed. 919] (1952); Kovacs v. Cooper, 336 U.S. 77, 86–88 [, 69 S.Ct. 448, 453–454, 93 L.Ed. 513] (1949).'

‘[10] ‘In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments.’ Jacobellis v. Ohio, supra, [378 U.S.] at 199, [84 S.Ct. 1676] (Warren, C. J., dissenting).'

(Paris Adult Theatre I v. Slaton, 413 U.S. at pp. 57–60, 93 S.Ct. at p. 2635, 37 L.Ed.2d at pp. 456–458.)

The court then dealt with the argument that there is no scientific data demonstrating the validity of the views it had expressed. After adverting to various types of legislation based upon unprovable assumptions, the court concluded its discussion of the matter by stating:

‘If we accept the unprovable assumption that a complete education requires certain books, see Board of Education v. Allen, 392 U.S. 236, 245, [88 S.Ct. 1923, 20 L.Ed.2d 1060] (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882–883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U.S. 75, [93 S.Ct. 259, 34 L.Ed.2d 290] (1972), id., at 76–77 [, 93 S.Ct. 259] (Marshall, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? ‘Many of these effects may be intangible and indistinct, but they are nonetheless real.’ American Power & Light Co., supra, [329 U.S. 90,] at 103 [, 67 S.Ct. 133, 91 L.Ed. 103]. Mr. Justice Cardozo said that all laws in Western civilization are ‘guided by a robust common sense . . ..’ Steward Machine Co. v. Davis, 301 U.S. 548, 590 [57 S.Ct. 883, 81 L.Ed. 1279] (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical date.'

(Paris Adult Theatre I v. Slaton, 413 U.S. at p. 63, 93 S.Ct. at p. 2638, 37 L.Ed.2d at p. 460.)

What is said by the Supreme Court in Paris Adult Theatre I is persuasive and establishes to the satisfaction of this court that the conduct of defendants described in the complaints with respect to the exhibition of obscene motion pictures is of a nature which, it could be found, ‘affects at the same time an entire community.’ The situation is even more clear with respect to the magazines exhibited and sold by defendants. As noted in footnote 7 of the material quoted from Paris Adult Theatre I, exposure to these magazines was not limited to consenting adults voluntarily entering defendants' book stores. Once sold, there was no limit to the number of juveniles and nonconsenting adults who might be exposed to them.

Once the objection based on Harmer is disposed of, there is little question that the exhibition of the obscene material described in the complaint constitutes a nuisance because it is ‘indecent or offensive to the senses' in the sense in which those terms are used in the nuisance statutes. Each of the complaints alleges that the motion pictures and magazines ‘are patently offensive because they affront contemporary community standards relating to the description or representation of sexual matters.’ Indeed, in order for them to be suppressed as obscene within the standard established by the United States Supreme Court in Miller v. California, supra, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, it will have to be found that such matter ‘depicts or describes, in a patently offensive way, sexual conduct.’ (413 U.S. at p. 24, 93 S.Ct. at p. 2610, 37 L.Ed.2d at p. 431.)

The authorities demonstrating the propriety of treating obscene matter as a nuisance because it is ‘indecent or offensive to the senses‘ are collected in the dissenting opinion in Harmer (supra, 23 Cal.App.3d at pp. 946–948, 100 Cal.Rptr. at p. 480). They include Weis v. Superior Court, 30 Cal.App. 730, 159 P. 464, holding a demurrer was properly overruled to a complaint seeking to restrain a show described therein as an ‘entertainment designated and known as the ‘Sultan's Harem,’ which for an admission is open to the general public,' employing women making ‘a public exhibition and exposure of their naked persons and private parts thereof to those attending . . ..’ (30 Cal.App. at p. 731, 159 P. at p. 464.) The acts complained of were held by the court to constitute a public nuisance; the court said:

‘While the acts here complained of clearly constitute a crime, they also constitute a nuisance within the meaning of section 3479 of the Civil Code, which defines a nuisance as: ‘Anything which is . . . indecent or offensive to the senses, . . . so as to interfere with the comfortable enjoyment of life or property. . . .’ And section 3480 of the same Code defines a public nuisance as: ‘One which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ Mr. Joyce in his work on Nuisances, (section 409) says: ‘A disorderly and disreputable theater may be enjoined, although a common nuisance.’ To the same effect is Wood on Nuisances (section 68), where it is said: ‘A public exhibition of any kind that tends to the corruption of morals, to a disturbance of the peace, or of the general good order and welfare of society, is a public nuisance. Under this head are included . . . obscene pictures, and any and all exhibitions, the natural tendency of which is to pander to vicious . . . and disorderly members of society.’

Not only as thus defined by text-writers and supported by decisions, but as declared in section 3479 of the Civil Code, any act which is an offense against public decency, or any public exhibition which is offensive to the senses, whether of sight, sound, or smell, or which tends to corrupt public morals or disturb the good order any welfare of society, is a public nuisance . . ..' (30 Cal.App. at pp. 732–733, 159 P. at p. 465.)

Our determination that the allegations of the complaints suffice to bring the alleged activities of defendants within the definition of public nuisance in Penal Code section 370 and Civil Code sections 3479 and 3480 establishes plaintiffs' standing under section 731 of the Code of Civil Procedure4 to bring a civil action to enjoin the public nuisance involved. “An abatement of a nuisance is accomplished in a court of equity by means of an injunction proper and suitable to the facts of each case. . . .” (Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382, 390, 233 P.2d 914, 919.)

The propriety of injunctive relief preventing the exhibition or dissemination of obscene materials which are outside the constitutional protections of free speech is recognized by the United States Supreme Court in Paris Adult Theatre I v. Slaton, supra. In that case the Georgia Supreme Court had held that the exhibition of the two films found to be obscene ‘should have been enjoined.’ Though the case was remanded for reconsideration in light of the new standards for determination of obscenity set forth in Miller v. California, supra, the United States Supreme Court expressly stated its approval of the Georgia procedure employed. The Court said in this respect:

‘This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation.4 See Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441–444, [77 S.Ct. 1325, 1327–1330, 1 L.Ed.2d 1469] (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.5 Thus the standards of Blount v. Rizzi, 400 U.S. 410, 417, [91 S.Ct. 423, 428, 27 L.Ed.2d 498] (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141–142, [88 S.Ct. 754, 755, 756, 19 L.Ed.2d 966] (1968); Freedman v. Maryland, 380 U.S. 51, 58–59, [85 S.Ct. 734, 738–739, 13 L.Ed.2d 649] (1965), and Kingsley Books, Inc. v. Brown, supra, 354 U.S. at 443–445, [77 S.Ct. 1325, at 1328–1330] were met. Cf. United States v. Thirty-seven Photographs, 402 U.S. 363, 367–369, [91 S.Ct. 1400, 1403–1405, 28 L.Ed.2d 822] (1971) (opinion of White, J.).’

‘[4] This procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty. We are not here presented with the problem of whether a holding that materials were not obscene could be circumvented in a later proceeding by evidence of pandering. See Memoirs v. Massachusetts, 383 U.S. 413, 458 n. 3 [86 S.Ct. 975, 997, 16 L.Ed.2d 1] (1966) (Harlan, J., dissenting); Ginzburg v. United States, 383 U.S. 463, 496 [86 S.Ct. 942, 16 L.Ed.2d 31] (1966) (Harlan, J., dissenting).

‘[5] At the specific request of petitioners' counsel, the copies of the films produced for the trial court were placed in the ‘administrative custody’ of that court pending the outcome of this litigation.' (Paris Adult Theatre I v. Slaton, 413 U.S. at p. 55, 93 S.Ct. at p. 2634, 37 L.Ed.2d at pp. 455–456.)

There appears, therefore, no reason that similar relief might not be granted by the trial court based upon the five complaints in this case. The propriety of civil injunctions restraining the commission of criminal offenses which also constitute public nuisances has been recognized by our Supreme Court in People v. Lim, supra, 18 Cal.2d at p. 880, 118 P.2d 472, and the Supreme Court of the United States has upheld such procedure over the objection that it denies trial by jury. (Alexander v. Virginia (1973) 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993.)

Since the complaints in each case stated facts on the basis of which some relief could be granted, the demurrers were improperly sustained, and the judgments must in each case be reversed.

It is unnecessary to discuss the many objections defendants urged to various forms of relief requested in the complaints on the public nuisance theory. Such questions are not legitimately posed by this appeal, which tests only the sufficiency of the complaints to state a cause of action for any relief, and it would be foolhardy for this court to attempt to write a procedural manual for the future conduct of these litigations.

We note, however, that the indecency and offense to the senses alleged in the complaints is limited to the exhibition of the obscene motion pictures and magazines. The nuisance, therefore, is confined to the content of the motion pictures and magazines. We are, accordingly, dealing with the depiction and description of lewd conduct and not with lewd conduct, itself. Such being the case, the power of the court to grant relief, at all stages of the proceedings, will be governed by the limitations applicable to prior restraints upon alleged speech.

In Miller v. California, supra, 413 U.S. 15, 25–26, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431–432, the Court states:

‘Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places.8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.

‘[8] Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U.S. 367, 377, [88 S.Ct. 1673, 1679, 20 L.Ed.2d 672] (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be ‘sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ See California v. LaRue, 409 U.S. 199, 117–118, [93 S.Ct. 390, 396–397, 34 L.Ed.2d 342] (1972).' (Emphasis added.)

The clear import of this statement is that restraint upon dissemination of ‘depictions or descriptions' of lewd conduct must conform to the requirement that the ‘restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance’ of the constitutionally permitted objective. The same limitation is articulated by our Supreme Court in the decision of Weaver v. Jordan, 64 Cal.2d 235, which states at page 245, 49 Cal.Rptr. 537, at page 544, 411 P.2d 289, at page 296 (quoting Shelton v. Tucker (1960) 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231, 237):

“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' [Fn. omitted.]'

The trial court will also be obliged to take cognizance of the restrictions imposed by the principles stated in Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, and the other decisions of the United States Supreme Court circumscribing the trial court's power to issue injunctions pendente lite.5

The Red Light Abatement Law has no Significant Bearing Upon These Litigations

Of the seven sections of the Penal Code (§§ 11225–11231) which comprise the Red Light Abatement Law, only one is a substantive law provision. Section 11225 makes nuisances of buildings or places used for the purpose of illegal gambling, lewdness, assignation or prostitution. The remaining sections deal with the relief appropriate for the abatement of such nuisances.

Insofar as section 11225 might contribute to the determination that the complaints in these actions allege the existence of a nuisance, it would add nothing to the resolution of any issue posed by this appeal. We have already held that the allegations of the complaints are sufficient to invoke the provisions of the general nuisance law as set forth in sections 3479 and 3480 of the Civil Code and section 370 of the Penal Code. We, therefore, find it unnecessary to prolong this opinion by discussing the highly debatable claim on the part of plaintiffs that defendants' places of business are used for ‘lewdness' or ‘prostitution’ within the meaning of section 11225 of the Penal Code. We are also persuaded that even if we were to agree with plaintiffs that defendants' various places of business are nuisances within the provisions of section 11225, the scope of the relief which might be granted would not thereby be enlarged. The complaints do not allege that any ‘lewdness' is occurring at defendants' various places of business other than the exhibition of the obscene motion pictures and magazines. Any nuisance alleged relates solely to the content of ‘depictions or descriptions' of lewd behavior. As we have already noted, prior restraint upon the exhibition of such depictions or descriptions may only be imposed in accordance with standards applicable to the suppression of alleged First Amendment freedoms.


The judgments, and each of them, are reversed and remanded for further proceedings in accordance with this opinion.


1.  Some of each group of defendants were alleged to be directly conducting such businesses; with respect to the others, it was alleged ‘[d]efendants, and each of them, have permitted and are now permitting the continuance and occurrence of said acts.’

2.  In some instances, as appropriate, reference was made only to motion pictures, and in others only to magazines.

3.  These exhibits, erroneously referred to in the complaints as ‘time and studies of motion pictures,’ consist of verbal descriptions of the action depicted in the films keyed to strips of still prints of individual frames of the film corresponding thereto.

4.  Section 731 of the Code of Civil Procedure provides in part as follows:‘A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code, by the district attorney of any county in which such nuisance exists, or by the city attorney of any town or city in which such nuisance exists, and each of said officers shall have concurrent right to bring such action for a public nuisance existing within a town or city, and such district attorney, or city attorney, of any county or city in which such nuisance exists must bring such action whenever directed by the board of supervisors of such county or whenever directed by the legislative authority of such town or city.’

5.  These cases are collected in the opinion of Paris Adult Theatre I v. Slaton, supra, 413 U.S. at p. 55, 93 S.Ct. at p. 2634, 37 L.Ed.2d at pp. 455–456, where it is indicated that these ‘standards' are applicable to injunctive proceedings to restrain the exhibition of films on the basis of their obscenity.

POTTER, Associate Justice.

FORD, P. J., and ALLPORT, J., concur.

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