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Court of Appeal, Second District, Division 2, California.

TAURUS ENTERTAINMENT, LTD., dba the King & I Theatre: Sally Paul; Helen Thompson; and Ana M. Dubois, Plaintiffs and Appellants, v. Daryl GATES, Chief of Police of the City of Los Angeles; the City of Los Angeles, Defendants and Respondents.

Civ. 58131.

Decided: June 18, 1980

Kaplan & Novodor by Joshua Kaplan, Los Angeles, for plaintiffs and appellants. Burt Pines, City Atty., Frederick N. Merkin, Senior Asst. City Atty., Christine C. Patterson, Deputy City Atty., for defendants and respondents.

Taurus Entertainment, Ltd. is a business entity which operates a drinking establishment in Harbor City, California, known as “The King & I Theatre” (The King & I). Harbor City is part of the incorporated area embraced by the City of Los Angeles. From the complaint in this case we learn that plaintiffs Helen Thompson and Ana Dubois are “performers” employed at “The King & I” and Sally Paul is the “manager of theatrical productions.”

In an action filed in the superior court, Taurus, Thompson, Dubois and Paul (hereafter plaintiffs) sought declaratory and injunctive relief to prevent the City of Los Angeles and its Chief of Police from, in any manner, enforcing against plaintiffs certain penal ordinances of the Municipal Code of the City of Los Angeles. We infer from the fact that the business entity, Taurus Entertainment, Ltd., is joined as a plaintiff in the action, that the injunctive relief sought would apply to enforcement of the ordinances on the premises of “The King & I” against any individual who might hereafter be employed even though those individuals are not joined as plaintiffs in this action. The trial court denied a request for a preliminary injunction. Plaintiffs have appealed from that order.

Penal Code sections 318.5 and 318.6 authorize the enactment by a city or county in California of local ordinances regulating or prohibiting nude entertainment on premises where food or beverages are also sold. Pursuant to that enabling legislation, the City of Los Angeles adopted ordinances which are codified in the Municipal Code as sections 42.21 through 42.32.

The City's ordinances prohibit exposure of certain parts of the anatomy, including the female breast, buttocks or private parts, in an establishment which serves food or beverages. Both the State enabling acts and the ordinances enacted pursuant thereto contain an exemption for “a theater, concert hall or similar establishment which is primarily devoted to theatrical performances.”

On January 12 and 13, 1979, plaintiffs Thompson and Dubois, respectively, were arrested along with several other persons for violating Municipal Code sections 42.21 et seq. at “The King & I.” Criminal proceedings were instituted against all of those individuals.

The complaint in the instant action was filed on February 9, 1979. Simultaneously, an order to show cause re the issuance of a preliminary injunction and a temporary restraining order were issued. The temporary restraining order was later dissolved and a preliminary injunction denied, all prior to the conclusion of the criminal proceedings. Subsequently those criminal proceedings resulted in acquittals of the persons so charged.

As a result of citations issued on June 27, 1979, several other persons, including plaintiff Sally Paul, were charged in misdemeanor complaints with violating the same ordinances at “The King & I.” On June 28, 1979, plaintiffs again sought preliminary injunctions to prevent further enforcement of the ordinances against them. The order denying the request for preliminary injunction the order from which this appeal is taken was denied August 24, 1979. Apparently those latest criminal proceedings, along with the complaint in this case, are still pending.

The constitutionality of Penal Code sections 318.5 and 318.6, and Municipal Code sections 42.21 et seq. has been firmly established. (Crownover v. Musick, 9 Cal.3d 405, 107 Cal.Rptr. 681, 509 P.2d 497; Startrack, Inc. v. County of Los Angeles, 65 Cal.App.3d 451, 135 Cal.Rptr. 283; Theresa Enterprises, Inc. v. Davis, 81 Cal.App.3d 940, 146 Cal.Rptr. 802.) Plaintiffs' claim to relief in these proceedings rests solely on their argument that “The King & I” is exempt from the operation of those ordinances because it is a “theatre devoted primarily to theatrical performances.” They contend that the evidence concerning the physical setup and the entertainment presented establishes the fact and further that because of the acquittals in the January 1979 prosecutions, the City is collaterally estopped from asserting otherwise. We disagree.

The evidence concerning the physical setup of the premises and the conduct of the “performers” is not in substantial dispute. “The King & I” is a one-story building, the interior of which is outfitted with a 40 foot bar and a mirrored backbar. An 8 foot X 10 foot stage, approximately 20 inches in height, is situated approximately 10 feet from the bar. The furniture consists of bar stools at the bar and tables and chairs around the stage.

The activity on the premises consists of the serving of alcoholic beverages to the customers seated either at the bar or at the tables. The waitresses alternate between serving drinks to the customers and performing on the stage.

The stage performances consist of dances to recorded music. Routinely the dances involve various degrees of disrobing which includes the exposing of the buttocks, breasts and pubic area. Customers occasionally place money on the stage and the dancers respond with a gesture for the customer or a kiss at the conclusion of the dance.

An off-stage loud speaker is used by one of the employees to encourage further exposure by the dancers or the purchase of drinks by the customers. In summary, the configuration of “The King & I” and the performances conducted therein are markedly similar to those described in Theresa Enterprises, Inc. v. Davis, supra, in which case this court stated 81 Cal.App.3d at page 949, 146 Cal.Rptr. at page 807:

“While we agree with the respondents that an establishment does not have to be the Music Center in order to be considered a theater or similar establishment primarily devoted to theatrical performances, the establishments in question do not as a matter of law qualify for the exemption. Certainly, there are fixed chairs and a stage. But the stage is very near to the patrons, and the waitresses and entertainers periodically exchange roles. It is obvious that the sale of food and beverage, encouraged and promoted by the presentation of nudity for the sake of sexual titillation, rather than the rendition of any First Amendment-protected entertainment, is the primary purpose of these establishments.”

Essentially the plaintiffs here seek to enjoin the otherwise legal enforcement of constitutionally valid ordinances by requesting the superior court to declare, prior to trial on the pending criminal prosecutions and for all times in the future, that they have a defense to such prosecutions a defense which is factual in nature and one for which they would have the burden of proof in such prosecutions.

Except for the novel claim of collateral estoppel, which we will discuss, infra, plaintiffs' contentions have been effectively resolved by the holdings in Austin v. Municipal Court, 89 Cal.App.3d 269, 152 Cal.Rptr. 400; and Theresa Enterprises, Inc. v. Davis, supra.

Inasmuch as plaintiffs can lay no claim to any First Amendment protection because of the Supreme Court's holding in Crownover v. Musick, supra, their only hope lies in establishing that they fall within the “theatre” exemption of the ordinance. The procedural method they have selected for establishing that exemption was condemned in Austin, at page 272, 152 Cal.Rptr. at page 402, as follows:

“A vice of the procedure attempted in this case is that misdemeanor charges, which should be tried in the municipal court subject to a review of the appellate department of the superior court, are removed to the superior court for trial in a civil proceeding with appellate review by the Court of Appeal and by petition of the Supreme Court. Such a dislocation of the case load may be justified under extraordinary circumstances . . . but is not an option routinely available to any alleged misdemeanant who would like to by-pass a trial in the municipal court.”

Turning now to the issue of collateral estoppel, plaintiffs contend that the acquittal of the persons, including two of the plaintiffs in this action, arrested in January of 1979, determined once and for all time that “The King & I” is a theatre and thus in the absence of structural changes, exempt from operation of the City ordinances under consideration. Thus they argue that they, or for that matter any other person who may be arrested in the future for similar violations, can conclusively assert that defense.

The doctrine of collateral estoppel is an adjunct of the traditional concept of res judicata, but focuses more on the similarity of the issues determined in the prior proceeding, although application of the doctrine does require that the party seeking to assert it, must have been in some degree of privity with a party to the prior proceeding. Its applicability to criminal proceedings is of fairly recent origin.

Accusatory pleadings couched simply in the language of the statute and general verdicts of acquittal, both attributes of the usual criminal proceedings, make it difficult to discern the specific basis for the fact finder's determination of innocence in any given prior case.

This problem was in part resolved in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, when the United States Supreme Court held that a court should, in assessing the applicability of the doctrine, examine the pleadings, the evidence, the jury instructions and other relevant matters, to determine whether a rational jury could have based its verdict of acquittal on any issue other than the one which a defendant claims to have been adjudicated. (Also see People v. Beltran, 94 Cal.App.2d 197, 210 P.2d 238; People v. Belcher, 11 Cal.3d 91, 113 Cal.Rptr. 1, 520 P.2d 385.)

Plaintiffs here presented the court in these injunction proceedings with a partial record of the previous trial in the municipal court. The People contend that in the absence of a complete record, plaintiffs may not avail themselves of the doctrine.

This issue need not delay us since we are of the opinion, as we will explain, infra, that even if it were established that the jury in the prior municipal court case based its verdict on the “theatre exemption” that fact would not justify the injunctive relief plaintiffs seek.

Plaintiffs in effect seek to immunize the premises of “The King & I” from enforcement of the ordinances and thus indirectly immunize all persons who may in the future act as waitresses or performers therein. They suggest that because on one occasion a jury found the “theatre exemption” applicable to the persons waiting tables and performing on that occasion, “The King & I” acquired a fixed and immutable status which, absent major structural changes, could continue into eternity.

Their position proceeds from a misinterpretation of the nature of the exemption. The so-called “theatre exemption” apparently was prompted by the Supreme Court holding in Barrows v. Municipal Court, 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483, which involved a stage play performed in a theatre or play house. A reading of Barrows, and Mr. Justice Tobriner's later dissent in Crownover v. Musick, supra, in which he discusses Barrows, makes it clear that the exemption contemplates a consideration of the conduct of the performers as well as the physical arrangement of the facility.

How could it be otherwise? The phrase “establishment primarily devoted to theatrical performances” clearly indicates that in order to qualify as a theatre or concert hall on any given occasion, the establishment must at the time be presenting such performances. If it were not it could not be characterized as an establishment “primarily devoted” to such activity.

This leads inexorably to the conclusion that in order to invoke the exemption, the conduct of the individual which is alleged to violate the ordinance must itself be part of a theatrical performance. The conduct of off-stage employees at the time in question could affect the determination of whether the premises were in fact “primarily devoted to theatrical performances.”

Given the obvious fact that the conduct of persons employed at “The King & I” can change from day-to-day or moment-to-moment (see Pitchess v. Superior Court, 2 Cal.App.3d 644, 83 Cal.Rptr. 35) it seems clear to us that a court which is asked to enjoin future enforcement of the ordinances cannot be sufficiently prescient to determine that in future instances the facts will be identical to those of a previously decided case.

Neither statute nor case law in California specifies the method for raising the issue of collateral estoppel. Our research discloses that, although it has been raised in various ways, the doctrine has always been applied as a defense in the subsequent prosecution of the individual asserting the prior adjudication. (See People v. Beltran, supra; People v. Superior Court (Jackson), 44 Cal.App.3d 494, 118 Cal.Rptr. 702; People v. Taylor, 12 Cal.3d 686, 117 Cal.Rptr. 70, 527 P.2d 622.) We have discovered no case in which the doctrine was invoked by way of injunctive relief against future arrest or prosecution.

The most recent and leading case invoking collateral estoppel in a criminal case is People v. Taylor, supra. There the defendant was convicted of murder on a theory of vicarious liability. Prior to his trial on the charge, however, his accomplice, the alleged slayer, had been acquitted. The Supreme Court on appeal from the judgment of conviction reversed on the grounds of collateral estoppel.

The main concern of the Taylor opinion was the lack of identity of the parties, a fact which the Taylor court found under the circumstances not to be preclusive. The court, however, carefully limited its holding to the particular circumstances of the case. That case is of no comfort to the plaintiffs here.

While we do not reject the possibility that in subsequent prosecutions the doctrine of collateral estoppel may be invoked as a defense by one or more of the individual plaintiffs, the remedy of injunctive relief is not available to them for the purpose of predetermining the validity of that defense by barring all future arrests or filings of criminal complaints. Such a procedure would violate the clear and sound precepts of Austin v. Municipal Court, supra, 89 Cal.App.3d 269, 152 Cal.Rptr. 400.

The order is affirmed.

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.