PEOPLE VAN DE KAMP v. AMERICAN ART ENTERPRISES INC

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

The PEOPLE ex rel. and John K. VAN DE KAMP, District Attorney of Los Angeles County, Plaintiffs and Respondents, v. AMERICAN ART ENTERPRISES, INC., et al., Defendants and Appellants.

Civ. 60499.

Decided: October 27, 1981

David M. Brown, G. Randall Garrou, Robert A. DePiano, Brown, Weston & Sarno, Beverly Hills, for defendants and appellants. John K. Van De Kamp, Dist. Atty., Harry B. Sondheim and Dirk L. Hudson, Deputy Dist. Attys., for plaintiffs and respondents.

This is an appeal by American Art Enterprises, Inc., a corporation, et al., (defendants) from a judgment, rendered against them for maintaining a nuisance, awarding the People damages in the sum of $168,000.

STATEMENT OF THE CASE

The defendants are owners of a building and its fixtures and furniture and movable property located at 21300, 21314 and 21322 Lassen Street, Chatsworth, California (hereinafter referred to as “Lassen Street Building” or “premises”).

On August 22, 1972, the People of the State of California filed an action primarily under the Red Light Abatement Law (Pen.Code, s 11225, et seq.), alleging that the premises were being conducted and maintained for the purpose of lewdness, assignation and prostitution and therefore were a nuisance under the laws of California. The trial court found that the building was a “nerve center of prostitution.” The trial court also found that the premises were “used for prostitution” within the meaning of Penal Code section 11225. However, it also found that the premises were being used for publication and distribution of books and magazines and that such use was protected by the First Amendment of the United States Constitution and therefore not subject to the Red Light Abatement Law.

The People appealed this decision. This court, in 1977, reversed the trial court's judgment. (People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, 142 Cal.Rptr. 338 (hereinafter referred to as “American Art (1977)”). In a published opinion, this court declared that the Lassen Street premises were “used as the headquarters of various entities constituting a corporate empire engaged in the publication and distribution of pornographic materials. The editorial, publication, administration, art, and photographic development activity of the entities are housed in the 20,000 square feet of the 120,000 square foot building with the remainder devoted to storage of books, magazines, and photographs. One-third of the stored material consists of photographs of explicit sex activity, and one-third of simulated sex, and one-third printed material without photographs. At least 100 persons are employed on the premises.” (American Art (1977), at p. 527, 142 Cal.Rptr. 338.)

This court went on to explain that the umbrella entity was American Art Enterprises, which employed staff photographers who worked from the premises and engaged the services of men and women who were photographed in every conceivable sexual act, although the said photographic activity did not occur on the premises; the photographs were published by American Art and its associated companies.

A typical example of the directing of photography of sexual activity from the Lassen Street Building was described in People v. Fixler (1976) 56 Cal.App.3d 321, 128 Cal.Rptr. 363, wherein it was held that procuring models to be photographed during sexual activity was pandering, in violation of Penal Code section 266i. In that case a woman named Patricia engaged in sexual acts while being photographed, and defendants provided the money to pay her and the photographer, and directed and induced her performances. The court held that this was pandering. It reasoned that prostitution in California is performance of lewd acts by a person for hire (Pen.Code, s 647, subd. (b)), and pandering is procuring a person to engage in prostitution (Pen.Code, s 266i). Fixler was, therefore, pandering, and the fact that photographs were taken of the sex acts of Patricia was not a defense.

In American Art (1977), the court held that, subject to constitutional restriction, the Lassen Street Building was subject to the Red Light Abatement Law. The case was sent back to the trial court with directions that “injunctive relief pursuant to the law must be limited in scope so that infringement upon First Amendment protection is no greater than that which government proves essential to prevention of the use of the premises to promote prostitution.” (75 Cal.App.3d 527, 142 Cal.Rptr. 338.)

The trial court then conducted further proceedings and on October 1, 1979, filed findings that on July 3, 1976, the Lassen premises had been leased by defendants to the Fisher Corporation, an unrelated electronics firm, and that the reasonable value of one year's lease of the premises was $168,000. The trial court then issued judgment awarding the People “a damage award equivalent to one year's rent” in the sum of $168,000. It is from that judgment that this defendant appeals.

DISCUSSION

The basic issue now before us is whether the trial court was acting within the provisions of the Red Light Abatement Law (Pen.Code, ss 11225-11235), and the scope of the appellate court's direction in American Art (1977) when it awarded the People $168,000 damages in lieu of evicting the tenant of defendant from the premises.

Penal Code section 11225, as it read in 1972, provided that “Every building or place used for the purpose of lewdness, assignation, or prostitution, and every building or place in which acts of lewdness, assignation, or prostitution, are held to occur, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.” Penal Code section 11230 provided that “If the existence of a nuisance is established in an action as provided in this article, an order of abatement shall be entered as a part of the judgment in the case, directing the removal from the building or place of all fixtures and movable property used in conducting, maintaining, aiding or abetting the nuisance, and directing the sale thereof and the effectual closing of the building or place against its use for any purpose, and that it be kept closed for a period of one year, unless sooner released.” This provision had been interpreted as vesting a trial court with equitable power, and with a broad discretion to fashion an appropriate remedy for abatement. (People v. Barbiere (1917) 33 Cal.App. 770, 775-776, 166 P. 812; Selowsky v. Superior Court of Napa Co. (1919) 180 Cal. 404, 181 P. 652.)

The 1977 American Art opinion specifically approved the determination that the Lassen Street Building was “a place used for the purpose of prostitution.” (75 Cal.App.3d at p. 529, 142 Cal.Rptr. 338.) Once this had been determined, the Red Light Abatement Law became applicable, and the burden shifted to the defendants to show that the nuisance had been abated. (People ex rel. Hicks v. Sarong Gals (1947) 42 Cal.App.3d 556, 562, 117 Cal.Rptr. 24.) Upon remand, defendants attempted to show abatement of the nuisance by the lease of the premises to an innocent third party, the Fisher Corporation, in 1976 while the first appeal was pending. Rather than evict the innocent tenant, the trial court chose to impose monetary damages amounting to one year's rent on the defendants. We hold, pursuant to Barbiere and Selowsky, that the trial court appropriately exercised its broad discretion by the imposition of damages, with the objective of preventing such nuisances as this.

We hold, too, that the award of damages was a proper response to the appellate court's ruling in the 1977 proceedings involving the case at bench. It may be that that appellate court was only contemplating injunctive relief under the fact situation it faced; however, it directed that new findings be made. The circumstances, i. e., the leasing of the premises, changed from the time of the appellate court's ruling and the new trial. The trial court so found. A five-year lease of the premises was made and defendants had moved out and presumptively were operating elsewhere. To evict the new tenant would not have been equitable and would not have accomplished the purpose of the law.

OTHER CONTENTIONS

Defendants contend that, since the complaint in the trial court did not pray for damages, the trial court did not have the power to award damages. We disagree; in California, in both civil and criminal matters, liberality in pleading is the rule with the important limitation that the individuals or entities against which action is contemplated must be given fair warning of the possible consequences against which they must defend. The complaint made it clear that the People were seeking to invoke any appropriate remedy to abate the activities being carried on in the Lassen Street Building. Code of Civil Procedure section 580 states that “ the court may grant relief consistent with the case made by the complaint and embraced within the issue ” (See, also, Singleton v. Perry (1955) 45 Cal.2d 489, 499, 289 P.2d 794.)

Defendants also rely on the traditional distinctions in civil law made between “general” and “special” damages, and contend that the award of damages in the case at bench did not fit in either category but was rather a penalty imposed contrary to law. We hold, however, that the damages awarded bore a reasonable relationship to the objective of prevention encompassed in the Red Light Abatement Law, specifically Penal Code section 11230, and that nothing further was required.

Defendants also rely on other civil statutes which deal with the abatement of nuisances, namely Code of Civil Procedure section 731 and Civil Code sections 3479 and 3480, pointing out that these sections do not authorize an award of damages in an action to abate a public nuisance brought in the name of the People, as contrasted in an action brought by a private citizen. It is true that a recent decision has adopted the interpretation of these statutes urged by the defendants (see People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater (1981) 114 Cal.App.3d 923, 171 Cal.Rptr. 85) but such interpretation of general civil law is not controlling over the broad discretion conferred on the trial courts by Penal Code sections 11225-11235 as they existed in 1972.

We affirm the judgment.

I respectfully dissent.

It is well established that a proceeding under the Red Light Abatement Act is a proceeding in rem, “primarily against the property because it is maintained and used in violation of the law.” (People v. Gifford (1921) 54 Cal.App. 182, 201 P. 469.) That is, the object of the act is to effect a reformation of the property itself, rather than punish the specific acts constituting lewdness. (People ex rel. Sorenson v. Randolph (1979) 99 Cal.App.3d 183, 188-189, 160 Cal.Rptr. 69; People ex rel. Hicks v. Sarong Gals (1974) 42 Cal.App.3d 556, 563, 117 Cal.Rptr. 24; see also People v. Bayside Land Co. (1920) 48 Cal.App. 257, 261, and People v. Casa Co. (1917) 35 Cal.App. 194, 199, 169 P. 454.) For this reason, dismissal of the abatement proceeding is the proper course when it appears affirmatively that the nuisance has been voluntarily abated. (See People v. Goddard (1920) 47 Cal.App. 730, 735, 191 P. 1012; People v. Dillman (1918) 37 Cal.App. 415, 419, 174 P. 951.) It appears affirmatively from the trial court's finding that the Lassen premises had been leased by defendants to the Fisher Corporation, an unrelated electronics firm, that the nuisance had been abated voluntarily.

Moreover, it is clear that the People are not authorized either to claim or to receive damages. Penal Code section 11226 permits the maintenance of an action “to abate and prevent the nuisance and to perpetually enjoin” its future operation. People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater (1981) 114 Cal.App.3d 923, 171 Cal.Rptr. 85 holds that the absence of an authorization to seek damages in Code of Civil Procedure section 731 limits the remedy which the People may seek to abatement. To attempt to distinguish Mitchell Bros.', as the majority does, on the ground that the Red Light Abatement Act confers broader discretion on a court of equity than does section 731 is to ignore the clear language of the Legislature and decisional law. Penal Code section 11230 confers no discretion upon the court, but describes the action to be taken in mandatory terms. In upholding the constitutionality of the act, People v. Barbiere (1917) 33 Cal.App. 770, 166 P. 812 noted that “the power in a court of equity to abate nuisances, whether public or private, has always been among the most conspicuous of the legal attributes of that tribunal, and the power specially conferred upon it by the act in question is new or novel only in the nature of the particular subject to which it is thus authorized to be applied.” (Id., at p. 776, 166 P. 812.) Hence it is clear that the equitable power and discretion conferred upon the court by the act is nothing more than that which the court traditionally enjoyed at common law to abate a nuisance.

I am in sympathy with the goal which the trial court attempted to achieve. The “hit and run” tactics frequently employed by similar defendants in abatement proceedings are deplorable and demand a response. However, as long as the purpose of the act remains the reformation of the property, the remedy of damages is simply not available to the court; the fashioning of a remedy by which to thwart such tactics is a task more properly left to the Legislature. Until the Legislature undertakes that task, I would reverse and direct the trial court to dismiss the proceeding.

FOOTNOTES

FOOTNOTE.  

FLETCHER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, J., concurs.