*1 Dist., No. 38114. Div. Two. Mar. [Civ. 1972.] Second al., et
JOHN HARMER Plaintiffs Appellants, PRODUCTIONS, INC., al., et TONYLYN Defendants Respondents. *2 Counsel
James J. Plaintiffs Clancy Appellants. John Defendants Fleishman and Weston for Stanley Respondents. H. Opinion
ROTH, J. is from a sus P. based This appeal ruling without leave to a demurrer to the first amended taining complaint Plaintiffs, individuals, exhibi six seek an amend. injunction prevent (film) in a tion closed theater of a motion “Without a Stitch” picture to abate it as a nuisance.1 Productions, is
The directed defendants (Tonylyn complaint against Harris, Thеatres, Does.) film involved Loew’s California Sher and four which, effort, allegations is a cinematic if the factual inartful singularly true, be, to- sexual ac- be taken as must complaint they depicts disposition also In view of our complaint purported 1The to state a class action. issue, unnecessary prop decide whether class action was the substantive erly alleged. intercourse, to, lesbianism and sod- including, but not limited sexual tivity omy. on the theories complaint premised Code, (Pen. et Red Law Abatement
provisions seq.). § Light *3 We conclude that the be affirmed. must judgment
Plaintiffs do not to special themselves allege damages required nuisance, such, public to show that the is a to enable it is nuisance assuming as to' Civil private them citizens or abate it within the enjoin meaning Further, Code section we 3480. find that the of the Red provisions Light Law Abatement do to not extend motion pictures. 3480
Section of the Civil Code “A defines nuisance follows: public nuisance is one which affects at the same time an entire community or or considerable the ex- nеighborhood, number persons, although tent of or inflicted be un- annoyance individuals damage upon may equal.”2 involved film was shown closed those only Only theatre. per-
sons could view it who had had admission who entered paid price Thus, the theatre. those to only members of the were exposed community the film who chose to see it. This not a case where the com- voluntarily aas (Fisher whole is to munity forced submit to vile odors involuntarily Zumwalt, 82]) 128 Cal. P. (Wade Campbell, 493 or air pollution 173, 966]) or to Cal.App.2d 92 A.L.R.2d Cal.Rptr. un- Tucker, (Hayden 214). welcome presence animals In the Mo. “ terms, statute’s . nuisance at bench did not . . at alleged affect[s] the same time (Civ. Code, an entire neighborhood, or . . .” community 3480) (italics added). § bench,
At could see the which volun- only portion film chose to enter theatre. tarily The nuisance was one which is in- not flicted or on imposed the public. Law,
The Red Light Abatement enacted to make houses originally nuisance, as well as was prostitution private amended to include used for illegal Red Abatement premises gambling.3 Light pertinent part injurious 2Section 3479 in “Anything defines nuisance as: health, senses, to or is indecent or offensive to the or an obstruction to the free use so as property, enjoyment property, to interfere with the or comfortable of life ... is a nuisance.” 3“Every building illegal gambling used place purpose by or for the as defined ordinance, lewdness, assignation, every building state or local or prostitution, law place illegal gambling by or in or which аcts as defined state law or local ordinance, lewdness, assignation, occur, prostitution, or is a held or enjoined, shall it prevented, abated whether is a or nuisance.” been to lewd live stage
Law has held construction by judicial apply has been extended to- similarly depic- shows exhibitions. It not apply or tions closed of those same acts still or motion picture, theatres If to closed theatres. which are limited exhibits drawings any type Code had section 11225 of the Penal desirеd-or intended Legislature films, such regulate showing pictures drawings, pornographic was in section when it matter could have been subject included “illegal amended in as it did when chose to enumerate recently defined in that section of state or local ordinance” law gambling Penal Code.
Th'e is affirmed. *4 J., concurred.
Fleming,
HERNDON, J. I dissent. A is very
In the the motion “Without Stitch” majority opinion picture effort, which, the if described as “a inartful cinematic briefly singularly must'be, true, as they are to taken as allegations complaint factual intercoursе, to, les- not sexual sexual but limited including, depicts activity bianism and sodomy.” be, the brief description though may majority’s
Incriminating
film
suf-
does
adjectives
The
not
euphemistic.
English language
provide
sub-human
of this sordid
ficient to describe the utter rottenness
product
and
of sexual
that
known form
every
perversion.
depravity
greed
portrays
described in this case was
motion
involved
accurately
picture
Ohio,
a case entitled
the Court of Common Pleas of Lucas
in
County,
As a
for
conclusion
Ewing
“State ex rеl.
‘Without A Stitchf.”
basis
its
its judg-
law that the motion
was hard-core
picture
pornography,
Ohio,
the
in
the
film the State
ment
exhibition
enjoining
permanently
as follows:
described the
findings
picture
the court made
in which it
motion
a
between
showed a
sexual relation
movie
simulated
“The
specifically
an attempted
old
and a
seventeen
one-half year
treating physician;
girl
the
That
a
man which was
act of sexual intercourse with young
incomplete.
oral
cunnilingus
well
sexual intercourse as
as suggested
рhysician’s
treatment. That through
was
to be
therapeutic
sodomy
purported
travelogue
holiday
background
type photographs,
media of
trip
through
to be shown
countries were
sexual morals of the various
attempted
abnormal,
normal,
sexual
and unlawful
approaches.
means
various
involving
subject
involved an act of anal
girl
That these
copulation
girl
between the
vaginal
male
well
companion,
copulation
subject
male; sadistic-masochistic,
this
between
another
sexual relationships
to this
and an
dildo
girl
adult male
subject
display
companion;
this
nude with a
and another nude female with
girl;
girl
nude male
other female’s
girl’s sexual
over the male’s
subject
parts
genitals
face,
other;
this
sexual
over male’s
each
parts
girls kissing
was also induced to
of a
subject girl
making
make and participate
movie. There was also a scene
lesbian
pornographic
activity.
suggesting
“That
addition to the
there were a number of.scenes
pornography
tоtal
lead-
of scenes
involving
nudity
visual creation
partial
resulting
fellatio,
to acts of
ing
male-female copulation, cunnilingus, sodomy,
lesbian relations and
sex
other
with the inference that these were
play
benefit,
her
therapeutically, to
sexual frigidity.”
alleged
Court of Common Pleas
enjoining
permanently
the exhibition of the film in the State of
was
Ohio
affirmed
Stitch,”
Ewing
Ohio
State ex rel.
v. “Without a
Ohio
Appeals
Ohio
In
App.2d
N.E.2d
that excellent
Ops.2d
655].
decision
court reviews all of the recent decisions of
United States
Court on the
Roth v. United
Supreme
States,
subject
obscenity including
*5
Ohio,
1498,
1304];
476
354U.S.
L.Ed.2d
77 S.Ct.
Jacobellis v.
[1
States,
793,
378
184
U.S.
L.Ed.2d
1676];
84
v. United
Ginzburg
S.Ct.
[12
383
31,
U.S. 463
942];
L.Ed.2d
Stanley
Georgia,
394
S.Ct.
[16
Reidel,
542,
1243];
U.S. 557
L.Ed.2d
[22
89 S.Ct.
United States
813,
U.S. 351
1410],
Thirty-
L.Ed.2d
91 S.Ct.
and United States v.
[28
Seven
822,
1400],
Photographs,
The Film A Is Pornography “Without Stitch!’ Hard-Core 311, in Section Subdivision the Penal Cоde (a), Defined and of Beyond Is Constitutional Protection. (a)
Subdivision of section 311 of California Penal Code provides matter, as follows: (a) “As used in this ‘Obscene matter’ means chapter: whole, aas taken of to the predominant appeal average person, standards, i.e., interest, a applying contemporary shameful prurient sex, excretion; or morbid interest taken and is matter which nudity, as a whole goes candor beyond, limits of substantially customary descrip- matters; tion or оf such and is matter as a representation which taken whole is without utterly social redeeming importance.” 177], a Fording, Landau
In Cal.Rptr. Cal.App.2d was denied Court judgment California hearing by Supreme Court the Court of the United was affirmed States Appeal Supreme 1317, 87 (388 after the U.S. L.Ed.2d certiorari granting 2109]). S.Ct. Justice Wakefield well-considered authored opinion trial case in that affirms Taylor Appeal held was hard-core court which that a film entited “Un Chant d’Amour” 311, within the Penal Code section subdivision pornography meaning (a). cites Since decision and discusses all of most pertinent Court, decisions United States I its content adopt reference interest economy. Fording, supra, 245
With the film in Landau v. involved respect the court at “In our commented 829: Cal.App.2d opinion, page scenes does more number of disjointed than production nothing depict in a is devoid sex manner and treating morbid shameful shocking, with artistic merit.” A the film in Landau described comparison A. leads film “Without in the case bench immediately Stitch” involved at to the we are even more conclusion that here dealing product shameful, no semblance morbid and one which shocking, possesses attribute. any redeeming Picture Pornographic Exhibition Motion “Without A Stitch'’ Involved the Commission of Crime and Created Public Nuisance. Infamous shock nature as to indecent exhibitions of such Obscene flagrant were regarded normal sense prevailing decency *6 on nuisances indictable the common law. In Perkins were under 1957) Press, Criminal states (1st Law Pеrkins ed. Foundation Professor at 336: or of nature to shock “Obscene indecent exhibitions page at com- of and indictable sense also nuisances public decency public This label includes not obscene and indecent theatrical per- mon law. only shows,’ but as letting formances other such ‘side disgusting practices .” a stallion . . . to mares in the streets or some other place public Paris v. above in Bloss recently stated were principles applied 260], 380 Township, Mich. 466 N.W.2d wherein Supreme [157 showing of held that the an outdoor drive-in theatre Michigan operation anatomy” the human “dwell on the of sex and motion pictures subject at the opinion constituted nuisance. from public following pages Nuisances, is a Law of 261-262 is “What nuisance? Joyce, apposite: public 15, nuisance, alia, 7, act which offends defines a inter § p. public 13, 6, Tucker, Cited to is the public decency. case of p. Hayden § 214, Mo. in which it was held that the of jacks keeping standing and stallions within the immediate viеw and a of a dwelling public nuisance which highway will as "a ‘disgusting equity enjoin annoyance perpetually blush shame in- bringing modesty nocence.’ case, The factual between difference and the instant Hayden is that there involved was a and here of the display equine pictures frame, human is not a distinction for a different conclusion as to calling the nuisance question.” Murphy,
In Cactus v. State ex rel. Corporation Ariz.App. 375], of Arizona affirmed the of the P.2d the Court judgment Appeals the exhibition of a triаl court which motion enjoined picture permanently film entitled same film other motion “Lysistrata” picture character on constitute a ground that such would activity public nuisance as defined the Arizona statute which is identical substantially section Civil 3479 of California Code. At 378 the appellate page bar, court “In the case at there is necessity stated: no finding se, in that the is a nuisance damage activity question per such that the produces annoyance, inconvenience discоmfort law pre Johnson, 115, sumes Ariz. damage. City Phoenix 75 P.2d Scott, (1938); Engle supra (114 236)]. Ariz. 383 P.2d Such arguendo nuisances are malum in se. Even if is assumed that the activity accidens, per here is the burden of has been damage showing met .... by plaintiff
“The defendant’s third contention is that the trial court’s that rulings was a here nuisance and it should be activity that abated injunction were erroneous. We statutes agree. do not A mere reading nuisances, (1956) 13-601 facts defining public A.R.S. light § us, before indicates the correctness of the trial court’s characteriza- clearly tion judice sub that activity of a nuisance. . . .” , Similar statements law are to be found the recent decisions several others of highest state courts the nation. On March 1971, the Court of in a unanimous decision affirmed a Georgia (Yellow)” “I Curious motion film Am holding picture nuisance; was obscene and a its further exhibition was enjoined *7 and all of the in film the of defendants were ordered copies possession Slaton, (Evans Theatre Corporation seized. v. Ga. S.E.2d 227 377 [180 712].) Vixen,
In State ex rel.
v.
Keating
948 the film there trial court which declared the exhibition of involved further the film in that state. to be a nuisance exhibition of enjoined the action to abate nuisance was a citizen under author- brought The the of a Code. the Ohio Revised ity provision Court, 464], v. Superior Weis 30 the
In 730 P. district Cal.App. [159 had a of Civil commenced civil action under Code Procedure attorney section 731 to abate the theatrical on that it performance ground that under concession public was nuisance. complaint alleged Exhibition, the defendant Panama-California International granted as the was an entertainment conducting upon grounds known exposition “Sultán’s Harem” which certain women in the general presence their It was naked alleged public exposed parts. person was indecent and offensive to the senses constituted performance In nuisance. for a defendant’s writ of public denying application court held that the action was appellatе prohibition, properly brought and at 732 commented follows: the acts here page “While complained crime, they meaning constitute a also constitute a nuisance within clearly Code, 3479 section the Civil a nuisance as defines ‘Anything senses, . . which is . indecent or offensive to the ... so to interfere (Italics added.) the comfortable of life or . . . .’ enjoyment property And section 3480 of the same code defines nuisance as ‘one at the same affects time an entire or or neighborhood, any community number considerable although annoyance the extent persons, inflicted be damage individuals Mr. in his work may Joyce unequal.’ (section 409) on Nuisances ‘A theater says: disorderly disreputable a common same effect may enjoined, nuisance.’ To the is Wood although (section 68), on Nuisances where it is said: exhibition kind any ‘Apublic morals, that tends to-the to a disturbance peace, corruption order and welfare of general good nuisance. society, Under this head are included . . . obscene and all exhibi- pictures, tions, the natural . of which is to vicious . . and tendency pander ” members of disorderly society.’ Court, 730, was Superior supra, Cal.App. decision Weis Lim, People California Supreme with approval by cited it is decision at page In the latter P.2d Cal.2d 872 472]. Court, Pac. Superior Cal.App. in Weis “Similarly, stated: was Diego of San County District 464], was held that the Attorney enjoin Civil Procedure section authorized, Code of under indecent, have been shown to which was of a exhibition performance Code, in Civil definition within the statutory thus on injunctions have thus refused grant .... The courts section *8 can except activity brought behalf of the state where the objectionable (Italics nuisance.” within the terms of the definition of statutory public added.) Establish That the to Complaint Alleges
The Facts Sufficient Film Constituted Pornographic Continued Exhibition of Injurious Nuisance to Specially Appellants. sufficient to satisfy The of the following complaint plead- allegations is to the elemеnt of ing special injury requirements respect which action under essential to establish to maintain the appellants’ capacity 13 of the first amended Civil Code section 3493. In and paragraphs have been is “12. That complaint, alleged follows: special damages and and will be suffered of said film by from showing by plaintiffs offended, in (a) classes that: have been they they significantly represent and caused emotional distress the existence and outraged, showing by in area where obscene movie to the close to the public, proximity work, immoral, (b) reside or been to they have they illegal, subjected influences the exhibition of to obscenity corrupting degrading work, in close to- the area reside where proximity they (c) have been to the direct indirect they subjected consequences and/or to-the area to the in close exhibition obscenity proximity work, where (1) reside or include attraction of criminal they area, (2) elements into the of real due to The decrease value property of undesirable of moral the attraction driving away persons (3) The lead- community erosion of the persons, morality order, (4) to losses in ing and moral peace, happiness, higher proba- bility of an increase in sexual venereal disease illegitimate promiscuity, births the members of the among community.
“13. That there exists a justly apprehended danger plaintiffs (es) class they from the represent exhibition of the aforementioned obscen- ity work, closе to where reside and proximity they increased crime, danger victimization disease and immorality, for the reasons and facts stated in 12 above.”
It is settled well that the special injury authorizes a private person to maintain an action abate a nuisance to section 731 of the pursuant Code of Civil Procedure section 3493 of the Civil Code arise may from source of nuisance to proximity the residence or the place of work of the citizen. The complaining pertinent provision section 731 of the Code Civil Procedure is as “An action follows: may be brought by affected, whose is person property whose injuriously nuisance, personal enjoyment lessened as the same defined *9 Code, the hundred and of the Civil thirty-four section seventy-nine or abated as well in such action the nuisance be enjoined judgment may recovered therefor.” damages Zumwalt, 82],
In
the
Court
Fisher
Zumwalt, defendant, it a nui- “that is contended appealing sance, and that and that it affects all of the neighborhood, people not is damage nuisance is not that injurious especially plaintiff; general different in kind or character from that suffеred by public, maintain that for this reason the in his cannot capacity private plaintiff (P. 495.) the action.”
In the judgment, the defendant’s contention rejecting affirming section 731 of the first sentence of its Supreme preceded quotation number with statement: “Because the nuisance affects great the following that it is the same it cannot said way, conclusively persons does nuisance and more. The fact a nuisance that nothing where, him, not individual of his in cases action deprive his the free use and property. obstructs enjoyment private Sacramento, County v. (Blanc 160]; at Yolo Klumpke, Cal. p. [156 195].)” 496.) (P. 36 Cal. at p. [193 Co., 1119],
In Johnson v. V. D. Reduction P. 175 Cal. Zumwalt, in a supra, Fisher v. Court followed the precedent fact that case and affirmed the similar again factually proposition and smells is a public rise offensive odors giving to maintain right nature does not an individual deprive plaintiff that it was of such character action for its abatement where the nuisance interfered or obstructed the use and еnjoyment complainant’s amendment The court further held that the 1905 private property. the institution Code of Civil Procedure authorizing section 731 officers civil actions the abatement of nuisances political did not abolish the individual’s of action. right Cal.Rptr. Campbell, in Wade Cal.App.2d
More recently 966], in a well-reasoned opinion the Court of Appeal 92 A.L.R.2d Court and numerous the above cited decisions of the Supreme followed to seek a judgment citizen right cited in affirming other preсedents *10 air in the of causing pollution. nuisance form abating operations hard-core criminal exhibitions of pornog- The nuisance created by far more environment the form of a of the moral assumes pollution raphy odors than the nauseous produced and more in its effects offensive damaging Johnson, in Wade or the animals the swine referred to' in the case by Campbell, supra. and of venereal disease the incidence and other sex crimes
As of rape to incrеase to- and adults continues juveniles epidemic among teenage now universally in Los and its environs—a community Angeles proportions for centers major for its dubious distinction one recognized indig- distribution and exhibition production, pornography—public nation will continue rise. There cause and effect relation- can no reasonable doubt decade, has between the liberalism which past during
ship permissive all to a dramat- countenanced forms sex exploitation encouraged in- increased and the coincident and concurrent dramatic ically degree disease, crimes, in creases sex in the incidence of venereal prevalence females, in unmarried promis- among teenage prevalent pregnancies other moral decadence. in obvious manifestations of cuity, Pictures Building
A Which Motion Pornographic Theatre in Building Purpose are Exhibited Is a Used Lewd Meaning Penal Code Within Performances Sections 11225 and 11226. Penal in their pertinеnt
Sections and 11226 Code provide as follows: parts illegal or used for the gam- 11225. Every building place purpose
“§ lewdness, ordinance, or as defined state or local assignation, law bling which of illegal or in or acts upon every building prostitution, place ordinance, lewdness, assignation, or local as defined state law gambling occur, be enjoined, which shall are held or is a nuisance or prostitution, nuisance.” it or abated whether private prevented, as defined to believe thаt a nuisance 11226. is reason Whenever there “§ county, is in existence any this article maintained or kept, California, the State of in the name attorney, people district own in his must, within said county, or resident citizen the State nuisance to abate and maintain an action may, prevent name equity it, enjoin perpetually or person maintaining conducting owner, lessee or agent or in or which the place, building, exists, from directly it.” indirectly maintaining permitting I have found no Although California court decision appellate extends the of the Red and Abatement Act application Light Injunction an authorize action citizen to abate exhibition of obscene motion I terms picture, submit that both the of the act literal policy dictate its plainly expresses application here.
In the context of the rising tide which has overwhelmed pornography lawof agencies enforcement and in view of the conclusive evidence effects, its devastating areas of sexuаl especially criminality juvenile the courts of have delinquency, California should no difficulty that these concluding remedial are and. statutory applicable provisions available.
As the majority Light concedes: “The Red Abatement opinion properly Law judicial has been held by stage construction to live apply lewd shows and added.) exhibitions.” (Italics I it submit that borders absurd to the law to live and exhibitions are apply stage shows that lewd and to its deny application motion that arе lewd and pictures patently obscene.
Based the assertion solely upon made in brief that to- respondents’ date this film California, has been exhibited in closed theatres in only ma- opinion jority the fallacious that accepts argument its exhibition does not constitute nuisance because those could view “[ojnly persons who had the admission paid and who had entered the theatre.” price
It sense, to the of common and even contrary teachings of superficial obsеrvation, to- that those suggest who choose to only patronize pur- veyors obscenity affected its of the moral adversely pollution environment. did not declare Manifestly, Legislature houses used for lewdness or to be did illegal gambling, nuisances and not prostitution for provide their abatement to who protect those choose to only might visit such houses.
I would reverse of dismissal. 30, 1972, A was denied March rehearing petition appellants’ for a petition hearing Court was denied 1972. April J., Burke, was of should opinion petition granted.