*1 Dist. Oct. No. Third 1982.] [Civ. Petitioners, al., OF et SACRAMENTO
COUNTY COUNTY, OF COURT SACRAMENTO Respondent; THE SUPERIOR BOOKSTORES, INC., Real Party Interest. GOLDIE’S *3 Counsel Counsel, Elam, Garcia, Franklin M. County Deputy County
L. B. Counsel, for Petitioners.
No for Respondent. appearance Wells, Jr., Real in Interest. Party for
Arthur
Opinion
PUGLIA, P. J. Sacramento and its sheriff are defendants County Petitioners In court. writ respondent in an action this pending superior proceeding, to secure a and to vacate protective limiting discovery seek mandate they ordinance. A writ will issue court of enforcement of mandate a trial order. directing granting tenders a
The action in court to the respondent challenge provisions pending Sacramento Code. deals with the County 9.87 of the 9.87 Chapter of chapter defined as arcades are there to which picture “any place operation one or or wherein more still or motion any public place, pic- is admitted public are or maintained still motion operated machines or show or projectors ture Code, (Sacramento 9.87.010.) County fewer persons.” to five or pictures § “No shall be maintained or ordinance also provides The interior of the where the viewed complete place pictures unless operated to such No or booths or fully entrance enclosed place. partially is visible upon (§ 9.89.020.) booths shall be maintained.” concealed fully partially 17,1981, as an to take was enacted December measure urgency 9.87 Chapter business; for arcades not ar- yet open existing as immediately effect 17, 1982) to (until March conform their viewing three months given were cades 9.87.030.) recited (§ The facts constituting urgency booths. were: “The determined that enclosed or concealed booths in Sheriff has arcades for increase misuse greatly potential premises, unlawful including bodily conduct and harm to This law-abiding ordinance will patrons. greatly harm to the potential decrease the public.” Bookstores, (Goldie),
Goldie’s Inc. the real in interest here party and plaintiff action, in the trial court has a so-called adult operated bookstore at Watt Avenue in the since before the enactment of chapter 18, 1982, On Goldie filed suit February 9.87. injunctive declaratory relief, the defendants the naming among county and the sheriff. The complaint (U.S. Const., the ordinance violates First Amendment alleges Amend.) 1st *4 because, face unconstitutional on its and as applied alia, and is inter is not it to further an important drawn narrowly governmental interest and is overbroad to unnecessary in that its terms regulate any legitimate concerns of the coun- filed, day On the was Goldie ty. complaint same sought obtained an ex service allowing deposition notices on the parte defendants. In his order, declaration in of that counsel Goldie support averred that the deposi- tions were needed “disclose evidence the factual concerning basis for the or- ” dinance and need for . . provisions . . The deposition of: county production notice to the requested notes, records, memoranda,
“All officers’ documents, police reports, police microfilms, media, books, machine-readable information storage magazines things and other information containing concerning or or “a.) licenses therefor or applications materials permits submitted thereto, order to obtain or work done or reflecting pursuant whatever kind nature, or any entity issued person regarding premises located at 4978 thereon; Watt Avenue or the located business or
“b.) done to said pursuant any work licenses permits by person or entity; “c.) taken at county concerning action premises Watt Avenue thereon; or the located business
“d.) occurring (as crimes at or around any defined alleged 9.87.010) 1, 1976; Code Section after January “e.) because behavior or conditions occurring arrests at or occurring 1, 1976; since January around said arcades at or
“f.) by anyone activity around said ar- concerning complaints 1, 1976. January cades since or arrests detentions at or
“g.) occurring because of behavior or conditions location books, business occurring regularly sells or displays or films with sexual content since magazines January Ordinances, rules, “h.) statements, regulations, policy directives and plans enforcement of state or county laws regarding involving businesses or persons books, or or films with sexual selling displaying magazines content since or said January operating maintaining arcades’ ‘picture since said date.” was at his same materials re- produce deposition
The sheriff requested those or license pertaining permits applications of the county except quested and in addition: notes, records, memoranda, documents, officers’ police
“All police reports, microfilms, media, books, information machine-readable storage magazines, information . . containing and other . things concerning “f.) the investigation, or enforcement of state and laws patroling local those stores regarding identified as stores’ in his cor ‘porno by [the sheriff] *5 1981.[1] respondence 20, county dated November [the executive] ‘the aberrations of social misfits who as that term frequent porno shops’ “g.) 20, in the said November 1981 by correspondence. is used [the sheriff] “h.) ‘criminal of bizarre sex crimes’ which revealed ‘telltale investigations found in the that were at ‘local artifacts suspect’s lodgings’ purchased porno 20, set forth in November as the said 1981 correspondence. galleries’ booths, show devices within which are “i.) all films [panoramas] peep of kind.” any shown moved for a order. The
Both defendants motion was promptly protective 5, motion, The court denied the but on March 1982. delayed deposi- heard an at least 1 to defendants to seek a review of give opportunity tions until April the status and avoid loss to Goldie To maintain before the merits quo the denial. heard, relief could be the court restrained complaint injunctive enforcement of the ordinance as to until April plaintiff for relief then to this court from the denial of their motion
Defendants applied and from the of enforcement of the ordinance. After stay for apparently interdepartment 1The document referred to here is an memorandum from the county inability deny complaining ap to the executive of the sheriffs business license sheriff “regardless impact upon of the criminal these establishments will have our plications community.”
453 writ stayed alternative and further discovery proceedings, we issued trial of enforcement of the court extended ordinance our pending resolution of this writ proceedings. trial order was based on the
Defendants’ court motion for a protective claim are and constitute proposed inquiries annoyance oppres irrelevant 2019, Civil sion within Code of Procedure section meaning subdivision In this court defendants (b)(1).2 Goldie seeks to argue the motivation of probe county the sheriff and the proposing enacting the ordinance. Goldie not such an acknowledges inquiry permitted Los v. (County Angeles 721, 13 (1975) 631, Court Cal.3d 727 495]; 532 Superior P.2d Cal.Rptr. [119 616, (1915) Cal. Hadacheck v. Alexander 169 617 259]) P. and eschews [147 in official motivation. interest Goldie’s lawsuit and its related efforts on the that discovery theory regulated predicated activities at its picture the First arcade are Amendment and protected ordinance therefore must drawn and narrowly be further a explicitly necessary legitimate govern (see 841, (1980) mental interest v. People Cal.3d Glaze 846-847 [166 859, 291]). 614 P.2d Goldie therefore seeks to discover Cal.Rptr. evidence to the lack of for the necessity establish that conduct showing “of fensive, to others and even unlawful” has dangerous not and therefore will not enclosed booths in occur in Sacramento County that it notwithstanding determined to be foreseeable in judicially has been enclosed arcade (see People in this state v. (1975) 252, other locations Perrine 47 Cal.App.3d EWAP, 640]; Inc. Los Cal.Rptr. City Angeles (1979) [120 179, 188-190 DeMott Cal.Rptr. v. Board Cal.App.3d Police [158 579] (1981) 122 879]; Comrs. 300-302 Cal.App.3d see Cal.Rptr. also [175 Theatres, Stereo Inc. v. Wenner (9th 1982) Ellwest Cir. 681 F.2d 1246-1247, Phoenix, Arizona, a similar upholding ordinance).
The Sacramento ordinance at in the issue underlying action EWAP, of an which was the before court in Inc. duplicates part v. Ci 179, Angeles, Los 97 Cal. on from a ty supra, App.3d appeal preliminary of It enforcement. is a content-neutral injunction restraining regulation of the time, of a and manner not direct protected speech, abrogation or in place, (EWAP, of rights. supra, First Amendment 97 at fringement Cal.App.3d Glaze, DeMott, 189; 848; v. 27 Cal.3d at People supra, p. 122 p. supra, moving vague court a papers 2Defendants’ trial also contain assertion that “some mat ters,” However, unspecified, are otherwise confidential. defendants made no reference to either (see or of privilege the absolute the conditional Evidence Shepherd Code section 1040 v. 107, 257, (1976) 161]) Court Cal.3d Superior Cal.Rptr. 17 123 550 [130 P.2d failed of identify required documents are considered confidential and privileged. thus Fur ther, issue is point premature. consideration of that at this thus challenge court did not requests permits In the trial defendants for or licenses or or- for dinances, regulations rules adult on ground relevant bookstores such that information (See Greyhound parties. Corp. Superior (1961) available to v. equally is both Court 56 Cal.2d 90, 355, 266].) Cal.Rptr. 364 P.2d We do not 383-384 thus consider such [15 issue. 454 302.) at The test of
Cal.App.3d
p.
appropriate
constitutional fidelity is the one
367,
articulated in United States v. O’Brien (1968) 391 U.S.
377
L.Ed.2d
[20
672, 680, 88 S.Ct.
A governmental regulation is sufficiently
1673].
interests,
its incidental
First
justified, despite
impact upon
Amendment
“if it is
Government;
within the constitutional
power
if it furthers an
or
important
interest;
substantial
if the
governmental
governmental interest is unrelated to
of free
and if the incidental
suppression
expression;
restriction of alleged
First Amendment freedoms is no
than is
greater
essential to the furtherance of
O’Brien,
(United
that interest.”
States v.
supra,
At as to threatened harm in Sacramento County by the of the the magnitude establishing in that locale. The of threat that the degree incidents of previous frequency order, and good well-being to the tranquility, of a business presents operation relevant, however, to the extent that it only at community large the of “ and the of between the regulations protection relationship a ‘patent establishes ’” Glaze, morals, health, welfare. . . . (People safety, general the public case, is established 845.) In this that patent relationship at 27 Cal.3d p. supra, film booths in a arcade. enclosed sex existence of the by time the identical ordinance must be tested anew each it is asserts that Goldie the different actual existence governmental entity by establishing aby enacted which would it. Goldie’s thesis would justify deny conditions of local of the one locale the benefit wisdom and of lawmakers in experience lawmakers circumstances; would, matter how similar the no it as it community, in another were, the reinvention of the wheel countless times over when mere ac require would render the considerable effort knowledge involved un cess to common arcades, in with closed booths dealing In lawmakers need not necessary. be maintained that of seriously obvious. It cannot Sacramento patrons blink the arcades do not to some sufficient to degree adult justify govern County of their in share the Los proclivities counterparts Angeles concern mental of such is itself sufficient to problems Reasonable anticipation justify Phoenix.3 embodied in reaction 9.87 Sacramento Code. chapter County official 190.) at Defendants are thus p. entitled a (EWAP, supra, Cal.App.3d. (Code useless Civ. oppressive depositions. prevent Proc., (b)(1).) subd. § writ also includes an of error in the trial allegation
Defendants’ petition of enforcement of the ordinance as to stay of a plaintiff, court’s imposition However, discovery resolution of the a of en controversy. our pending in the context of relief is a matter within injunctive of an ordinance forcement Comrs., (See court. DeMott v. Board Police supra, of a trial the discretion of case, 300-301.) in this on the delay adjudication at pp. 122 Cal.App.3d review of the defendants’ desire seek denial of their merits was caused People (1980) v. Adult World Bookstore required, reading Cal.App.3d a of 3If more is 519], Attorney’s There the Cal.Rptr. should suffice. Sacramento District com 404 [166 incorporated of two so-called adult bookstores for abatement declarations plaint repeatedly period who had visited the bookstores over a vice unit officers several reported copulation “instances of masturbation and oral observed months. The declarations holes), partitions between certain of the booths. The through openings (glory of them (the patrons suggest to them from male evidence does not reported invitations ficers further patrons), purpose engaging time of female to share booths for the presence activities, performance verbal and nonverbal invitations for the of sexual acts homosexual upon near openings, a bulletin board the entrances to through partition by individuals containing cards written solicitations sexual acts in pinned 3" x 5" were store, performed for sexual services to be outside an instance of cluding one advertisement warning patrons potential presence police within the store of the of defendants employee officer, pertaining instructions on the outer side of a door of one booth posted an instance of (At 407.) activity.” specific p. form of sexual signal for a proper to the *8 merely motion a The protective stay preserved for order. the status quo until be There no that was abuse of could discretion in accomplished. such circumstances. of mandate directing
Let a writ issue the trial court to grant defendants’ mo- for order to extent tion a the views in required expressed this writ, The alternative its having served opinion. purpose, is The discharged. issued heretofore is dissolved. discovery is to bear own Each its costs of these party proceedings. J., concurred.
Regan, SPARKS, I concurin the insofar majority as it concludes opinion that J. peti- that there tioners assert is inherent between the relationship regulation of in arcades where sexually films are and explict shown the protec- health, safety, viewed, tion of the morals and public general welfare. So of the ascertainment “factual basis . . . ordinance,” need for the Goldie in depositions, these is sought by unnecessary. This discovery attempt can be described as an only therefore to improper attempt motivation probe in county of the and the sheriff proposing the ordinance. enacting it both But cannot have ways. They cannot now claim that petitioners the fac- this (and tual basis for Sacramento is irrelevant hence not discoverable) to and later seek the enactment at justify trial unlawful proof incidents at arcades The County. need for regulation of arcades, like of drugs, that alcohol and prostitution, is either self- it is not. Petitioners claim that it evident or their having staked claim on there the legal that is where battle must be ground, fought. Civil
Code of Procedure section 1987.1 authorizes the trial court issue pro- orders, either with the by directing tective compliance such subpoenas “upon as the court shall declare” or by “any terms or conditions other making witness, protect as be or . may appropriate . . from parties, I demands . ...” would unreasonable issue the writ oppressive directing or, election, either with the at their petitioners comply subpoenas decline be that from they precluded the condition evidence upon introducing any of the nature sought subpoenas. J.,
A was Sparks, was 1982. petition denied November rehearing of real The party that the should be opinion petition petition granted. in interest for a December Court was denied hearing by Supreme