21 P.2d 606 | Cal. Ct. App. | 1933
Respondent brought this action on April 1, 1932, against the appellant and certain other persons, to secure an injunction prohibiting them using or conducting certain premises in the city of Modesto as a dance hall, or giving dances therein or permitting them to be so used.
The court below issued a temporary restraining order upon the verified complaint, without notice. An order to show cause why a preliminary injunction should not be granted was issued, returnable April 9, 1932. On April 8, 1932, the defendant, Teddy McMahon, appellant herein, served and filed a general demurrer to the complaint and an affidavit in opposition to the granting of a preliminary injunction. The other defendants did not appear. Counsel for the parties so appearing stipulated in open court that a hearing might be had on the eighth day of April, 1932, on the demurrer and order to show cause. It appears from the bill of exceptions that on said day the plaintiff had witnesses in court and was prepared to present oral testimony in support of his application but that counsel for the defendant McMahon stated in open court that it would not be necessary to take the testimony of any witnesses and that said defendant's demurrer was his answer to the order to show cause, and that the court thereupon excused the witnesses and proceeded with the hearing of the application for a preliminary injunction upon the complaint and said demurrer. Both matters were then argued and submitted for decision and the court took them under advisement. Thereafter, on April 18, 1932, and before the court had passed upon the demurrer and application for preliminary *420 injunction, upon moving papers duly served and filed, the defendant McMahon moved to dissolve the temporary restraining order.
The ground of the motion which we deem most important is that the complaint did not state facts sufficient to constitute a cause of action. The motion was made and presented upon the notice of motion, the pleadings on file and the affidavit of the defendant McMahon. The court thereupon denied the motion to dissolve the temporary restraining order and sustained the demurrer and gave the plaintiff ten days' time to amend his complaint. It further ordered that upon plaintiff filing a bond in the sum of $1,000 within forty-eight hours of the making of said order, he should be granted a preliminary injunction as prayed for. All of said rulings and orders were made on April 18, 1932, and entered as parts of one minute order. On April 20, 1932, the court issued its preliminary injunction. An amended complaint was served and filed on April 22, 1932, and on April 25, 1932, the defendant McMahon served and filed two notices of appeal, one appeal being from the order denying the motion to dissolve the temporary restraining order and another from the order granting the preliminary injunction.
The ruling of the trial court in sustaining the demurrer is not before us for review, but its correctness is involved in the question of whether the court erred in denying appellant's motion to dissolve the restraining order and in issuing the preliminary injunction, for to justify the issuance of a restraining order in the first instance, or the continuance of it in force, it must appear from the verified complaint, or from affidavit, that sufficient grounds exist therefor. (Code Civ. Proc., sec. 527.)
The original complaint is defective in several particulars. We shall not notice in detail the defects which rendered it demurrable, in view of the conclusions herein reached as to its insufficiency to support the injunctive orders. The substance of the complaint is as follows: That plaintiff owns and conducts a hospital within 180 feet from the dance hall premises; that for some time prior to 1931 a dance hall was operated on said premises by the owners, managers or lessees thereof, at which public dances were held; that some of the patrons or visitors of such dances, while patrons *421 or visitors at said dance hall, disturbed the peace and quiet of the people in the neighborhood, and particularly disturbed the peace and quiet of plaintiff and of his patrons and employees in said hospital, by loud and tumultuous laughter and obscene and profane language, and by unnecessary racing of the engines of their automobiles, and unnecessary honking of the horns thereof; that in 1931 the dance hall was destroyed by fire; that plaintiff is informed and believes and therefore states as a fact that the dance hall is being reconstructed upon said premises and upon completion will again be occupied and used as a dance hall and for public dances and other gatherings of people, and that the said condition of said disturbances and annoyances will be repeated at frequent intervals and whenever a dance is given in said dance hall, and will continue indefinitely unless restrained; that the continued repetition of said disturbances and annoyances will cause a considerable number of people and residents of the neighborhood of said dance hall and particularly the plaintiff and the patrons and employees of plaintiff's hospital great discomfort and annoyance, which has been and will continue to be injurious to the health and offensive to the senses of a considerable number of people residing in said neighborhood, and particularly to the plaintiff and his said patrons and employees, and will greatly depreciate the value and use of the property of the said residents in said neighborhood, and particularly the value and use of the said property of plaintiff; that plaintiff is informed and believes, and therefore alleges, that a dance will be given at said dance hall by the defendants or their agents or lessees on or about Saturday evening, April 2, 1932, unless restrained by an order of the court, and that, if given, the same disturbances and annoyances will result, as before alleged, to the same persons and with the same effects; that the defendant McMahon is the agent and manager for the owner, or the lessee of the dance hall premises, and in possession and control thereof; that plaintiff has no plain, speedy or adequate remedy at law, and that plaintiff and the other people alleged to be affected by said disturbances and annoyances will suffer great and irreparable damages before the matter can be heard on notice. The prayer is that the said dance hall be declared a nuisance and that it be abated; and that the defendants, and each of them, and *422 their agents, attorneys and employees be restrained and enjoined from operating or maintaining said premises as a dance hall and from giving or permitting dances to be held therein.
[1] We are of the opinion that the court below erred in granting the preliminary restraining order upon this complaint and in denying the motion to dissolve it and issuing the preliminary injunction. Waiving all considerations of whether the complaint showed a public nuisance which could be abated at the suit of a private individual only if the injury alleged were shown to be special and peculiar to him and different in kind from that suffered by the public, and of the impropriety of granting injunctive relief upon a verified complaint whose material allegations are stated on information and belief, and certain other matters of pleading which undoubtedly claimed the attention of the trial court in sustaining the demurrer, and considering the complaint solely from the viewpoint of its substantiality as a basis for the orders appealed from, and further, considering the orders themselves, we find that a more serious situation exists than would have been presented by a mere sustaining of a demurrer, with leave to amend, without prejudice to a restraining order or temporary injunction proper in substance and scope. In the case before us the principal allegations of nuisance are to the effect that while the dance hall was conducted by its owners, managers or lessees, prior to the fire which destroyed it in 1931, some of the patrons or visitors of the dances there held disturbed the peace and quiet of the people of the neighborhood and of the patrons and employees of plaintiff's hospital by loud and tumultuous laughter and obscene and profane language, and by unnecessary racing of the engines in their automobiles and unnecessary honking of the horns thereof, and that said condition of the said disturbances and annoyances will be repeated at frequent intervals, and whenever a dance is given in said dance hall, and will continue indefinitely. These are wholly insufficient to justify the restraining order or its continuance, or the preliminary injunction in the form issued. [2] A dance hall is not per se
a nuisance and the conducting of one, or of public dances therein, is a lawful business. (Pavilion Ice Rink v. Bryant,
An injunction should rarely, if ever, be issued in a doubtful case. [4] The power should be exercised only when the right is clear, the injury impending and threatened, so as to be averted only by the protecting preventive process of injunction. (Willis v. Lauridson,
In Thoenebe v. Mosby, 257 Pa. St. 1 [101 A. 98], an injunction against a public dance hall was refused where it appeared that in a neighborhood not strictly residential, but partly business in character, everything had been done by the proprietors to lessen the sound of the music after 11 o'clock on nights when a dancing school was held therein and that on other nights, occurring about once a month, when an entertainment was given lasting until about 2 o'clock in the morning, the noises in the street from the saying of parting words and calling to friends by people leaving the hall could properly be left to the police to regulate.
We have found no California cases directly involving the question of enjoining dance halls or dances as nuisances. We think the principle involved, however, is precisely that which applies to any other lawful business which when so conducted as to constitute a nuisance may be enjoined as to the hurtful manner of its conduct, but should not be restricted further.
Respondent urges that his amended complaint relates back to and speaks as of the time of the filing of the original and hence supports the restraining order and the preliminary injunction. A sufficient answer to this is that the amended pleading, notwithstanding it directly alleges some of the matters originally stated on information and belief and enlarges upon the averments of special injury to plaintiff, is still wholly insufficient to justify the orders made. It is therefore unnecessary for us to burden this opinion with a discussion of whether the appeals speak as of the date of the orders appealed from or must be considered as if the amended pleading filed after the entry of the orders from which the appeals are taken had fallen into the place of the original one. *427
Appellant based a part of his argument for reversal upon the theory that since the general demurrer was sustained there was no basis for the temporary restraining order and preliminary injunction. In upholding his appeals we are not to be understood as placing our opinion on this ground, but upon that heretofore discussed, namely, that the case made by plaintiff was insufficient to justify the particular orders made. [6] It is settled that in a proper case a demurrer may be sustained and an amendment allowed without prejudice to a preliminary restraining order or temporary injunction already granted. (Barber v.Reynolds,
The matters we have already discussed are determinative of the appeals; hence we shall not discuss the other points made.
The orders appealed from are reversed, with direction to the court below to grant the motion to dissolve the restraining order and deny the application for a temporary injunction.
Knight, Acting P.J., and Cashin, J., concurred.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 22, 1933.