LEE v. DAVIS (1980)

We have consolidated these four cases because they involve the same basic issues. Defendants (law enforcement officers of the City of Los Angeles) appeal from preliminary injunctions restricting them from enforcing, prior to trial on the merits, ordinances of the city regulating establishments which provide nude or semi-nude dancing in establishments serving food and drink. We affirm the injunctions.

Sections 318.5 and 318.6 of the Penal Code provide as follows:

“Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a county or city, if such ordinance directly regulates the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress, or entertainer, whether or not the owner of the establishment in which the activity is performed employs or pays any compensation to such person to perform such activity, in an establishment which serves food, beverages, or food and beverages, including, but not limited to, alcoholic beverages, for consumption on the premises of such establishment.

“The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.

“This section shall be known and may be cited as the ‘Quimby-Walsh Act.’ ”

“Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, if such ordinance relates to any live acts, demonstrations, or exhibitions which occur in public places, places open to the public, or places open to public view and involve the exposure of the private parts or buttocks of any participant or the breasts of any female participant, and if such ordinance prohibits an act or acts which are not expressly authorized or prohibited by this code.

“The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.”

The underlying dispute between the parties is over whether the establishments herein involved are “a theater, concert hall, or similar establishment” within the exception set forth in those sections. Contending that they are not, the law enforcement officers of the city propose to prosecute the owners and employees thereof for violation of sections 42.21 through 42.32 of the Los Angeles Municipal Code.

Finding, as a matter of fact, that there is a “high probability of success” at trial for the plaintiffs on the underlying issue, the trial court entered the preliminary injunctions herein, before us.

I

On this appeal, the issue is not whether plaintiffs will ultimately prevail on a trial on the merits, but whether the trial court had authority to intervene by injunctive relief pending such a trial. On that issue, the parties rely primarily on three earlier cases from this district.

Defendants rely, in part, on the decision of this division in Austin v. Municipal Court (1979) 89 Cal.App.3d 269, 152 Cal.Rptr. 400. That reliance is misplaced. In Austin we considered an injunction in a case involving an establishment admittedly not within the statutory exception (thus not involving any problem of preemption or application of the First Amendment), but only a factual issue of whether the conduct of performers therein involved did violate the provisions of another section of the Penal Code (section 314). It was in that context that we held that resort to the equity powers of the superior court was an improper invasion of the regular process of a criminal trial in municipal court. As we point out below, that case, on its limited facts, has no pertinency to the issue here before us.

In Startrack, Inc. v. County of Los Angeles (1976) 65 Cal.App.3d 451, 135 Cal.Rptr. 283, the issue was whether an establishment could validly be prosecuted under a county ordinance which required that it obtain a county license as a “theater,” even though it fell, factually, within the exception contained in the state statutes. The holding, which modified the injunction, went only to determine that the county could not lawfully require the county license so long as the establishment fell within the statutory exception. Insofar as is here involved, the case is authority for the use of injunctive relief against enforcement of a local ordinance against establishments which are, in fact, “theaters or a similar establishment.”

The third case chiefly relied on here is Theresa Enterprises, Inc. v. Davis (1978) 81 Cal.App.3d 940, 146 Cal.Rptr. 802. In that case, after discussing the general rule against interference by equity with a criminal trial, the court also discussed and recognized the exception to that rule in cases involving an unconstitutional statute. It then proceeded (a) to hold Penal Code sections 318.5 and 318.6 constitutional (an issue not before us in the present case) and (b) then to hold, on the record before it, that the two establishments therein involved were not theaters.

It is now well settled that, where a possible criminal prosecution threatens the exercise of constitutional rights protected by the First Amendment, the general rule against noninterference with criminal prosecutions is not applicable but that equity may intervene to prevent a criminal prosecution which could inhibit the free exercise of that constitutional right. The exception set forth in sections 318.5 and 318.6 is designed to insure that local legislation and local enforcement cannot be used to accomplish what the constitution prohibits. Therefore, we agree with Startrack that, in a case such as the one here before us, the superior court could properly issue an injunction the effect of which is to stay attempts to inhibit a constitutional and statutory exercise of the rights of a plaintiff.

II

We turn to a second issue in this case. In Austin the establishment admittedly was not a “theater” protected by the First Amendment and the cases applying that constitutional provision. In Startrack, the opinion assumed that the establishments therein involved were “theaters” within the statutory and constitutional provisions. We recognize that, in Theresa, the appellate court regarded itself as being entitled to review the factual finding of a trial court on the issue of whether the establishments therein involved were “theaters.” We cannot agree with that assumption of appellate power.

In the case before us, the ultimate fact to be decided after a trial is whether or not each of the plaintiffs is operating “an establishment which is primarily devoted to theatrical performances.” This issue will turn upon a complex of facts, which are only superficially revealed by the declarations submitted for and against the motion for a preliminary injunction.

We have a finding by the trial court that the plaintiffs “have shown a high probability of success” on this issue at trial. Upon this record we cannot say that this preliminary and tentative finding lacks evidentiary support. The plaintiffs are entitled to proceed, if they so desire, without fear of an illegal enforcement of the binding law. Whether that assessment of the facts will be borne out at a full dress trial is a matter properly reserved, as do the injunctions here before us, for such a trial.

The judgments are affirmed.

KINGSLEY, Associate Justice.

FILES, P. J., and WOODS, J., concur.