Petition — Camil v. Superior Court
Supreme Court brief1977
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Supreme Court, U.S
FILE D
DEC 27 1976
IN THE
-
MICHAEL RODAK, JR., CLERK
Supreme Court of the United States
OCTOBER TERM, 1976
No. 76 76-887 3
PEOPLE OF THE STATE OF CALIFORNIA ex rel.
WILLIAM CAMIL, City Attorney of the City of Duarte,
California,
Petitioner,
VS.
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
FOR THE COUNTY OF LOS ANGELES,
Respondent,
BUENA VISTA CINEMA, being a building structure contain-
ing approximately 3,440 square feet (80 x 43’), located on
real property commonly known as 1345 East Huntington
Drive, Duarte, California; STEPHEN E. TILLANDER, d.b.a.
Buena Vista Cinema; DIVERSIFIED REALTY FUND “A”
a limited partnership; TITLE INSURANCE AND TRUST
COMPANY, a California Corporation; DUNN PROPERTIES
CORPORATION, a California Corporation; JOHN DOES
1 to 10,
Real Parties in Interest.
PETITION FOR AWRIT OF CERTIORARI TO THE
COURT OF APPEAL,
SECOND APPEALLATE DISTRICT
James J. Clancy
9055 La Tuna Canyon Rd.
Sun Valley, California 91352
Counsel! for Petitioner
-i-
SG a ee ee
- Constitutional Provisions Involved ..
Statutory Provisions Involved.....
Statement of the Case .........
Statement of Facts ..... eee ee
Reasons for Granting the Writ .....
A. Neither the Majority Nor
the Minority Opinions In
Near v. Minnesota Ever
Intended the Result
Reached Herein ......-.
B. The City of Duarte's
Porno Theater Problem
Raises a Substantial
Federal Question ......
CG The Federal Question
Has An Easy Solution ....
Comelumsion. « « « « a a eo oe
APPENDIX A
Statement of Facts (pp. 5-34) of
Petitioner's first petition for
writ of certiorari to the U. S.
Supreme Court filed in this
38
Ga ~¢ « ©«'6 ¢ © # 6 6s 6 «6 * A-5 -
A-34
afin
APPENDIX B
Minute Order of Superior Court
Judge Norman Dowds, filed on
August 2, 1976, denying Peti-
tioner's motion for a prelimi-
nary injunction .....-+s-.-s B-1
APPENDIX C
Court of Appeal, Second Appellate
District, Division Two, Order
dated September 1, 1976, denying
Petition for a Writ of Certiorari
and/or Mandate in People ex rel.
Camil v. Superior Court, 2d CIV
nn «64646 ee at eae 6 C-1
APPENDIX D
Order of the California Supreme
Court denying the petition for
hearing . * >. . 7. > . a . — . >. . D-1
APPENDIX E
Amendments I, V, X of the Consti-
tution of the United States ... E-l
APPENDIX F
California Penal Code Section
3l1l(a) defining “obscene
matter" oe we eee ee ee) a ee F-1 ” F-2
APPENDIX G
California Civil Code, Sections
3479 and 3489, containing the
provisions defining what consti-
tutes a public nuisance ..... G1
APPENDIX H
California Code of Civil Pro-
cedure, Section 73l, authorizing
-iii-
the City Attorney to prosecute
civil public nuisance abate-
ment actions when directed by
Gp Cater Gommeal . 2 ct te cee H-1
APPENDIX I
California Code of Civil Pro-
cedure, Section 527, containing
the provisions relating to the
granting of preliminary injunc-
a ee a a I-1 - I-3
APPENDIX J
A photo-reduced copy of Ordinance
No. 398, passed and adopted July
13, 1976. A true and correct
copy of Ordinance No. 398 appears
at Exhibit "2" to the "Petition
for Writ of Certiorari And/Or,
In The Alternative, Mandate, With
Supporting Memorandum of Points
and Authorities", on file with
this Court as a part of the re-
GumG MOBSUEM « we ec cece eee J-1 - J-6
APPENDIX K
A photo-reduced copy of Resolution
No. 76-28, passed and adopted
July 13, 1976. A true and correct
copy of Resolution No. 76-28 ap-
pears at Exhibit "2" to the "Pe-
tition for Writ of Certiorari And/
Or, In The Alternative, Mandate,
With Supporting Memorandum of
Points and Authorities", on file
with this Court as a part of the
wpeoeme NOWGEM « ew tw ew ee ee K-l - K-14
-iv-
Appendix
PS eee ee ee oe 6
Appendix B .....-. coecene
Ropem@in C «ces veses oees
pe ee ee coveees
Appendix E ...«.««e«ee ee eee
Appendix F ...... oovreeves
Appendix G ...... coeeeeee
PC ES eee a ee ee
Ropem@in T wc cece seveeen eoees
RopemG@in JT «ce cecveeevveeses
pS ee ee ae ee ee ae ee
Art Theater Guild, Inc., et al. v.
Ewing, 421 U.S. 923, 44 L.Ed.
2d 82, 95 S.Ct. 1649 (1975)...
Blount v. Rizzi, 400 U.S. 410, 27
L.Bd.2da 498, 91 S.Ct. 423
+, | rrr ae
Freedman v. Maryland, 380 U.S. 5l,
13 L.Ed.2d 649, 85 S.Ct. 734
(1963S) «ec eeeveveens .
Ginsberg, Sam v. New York, 390 U.S.
629 at 642 fn. 10 (1968) ....
Ginzberg v. United States, 383
U.S. 463, 470, 16 L.Ed.2d 31,
37-38, 86 S.Ct. 942, 947 (1966).
Hicks v. Miranda, U.S. » 4 le
Ed.2d 223, 95 S.Ct. 2281,
, e .. arr ee ae
oa NIN NIN DW W
Pages
50
42
42
43
52
50
Huffman v. Pursue, Ltd., 420 U.S. 492,
__U.S.__, 43 L.Ed.2d 482, 95
S.Ct. (March 18, 1975). ....
Marks, et al. v. leis, etal., U.S.
, 43 L.Ed.2d 482, 95 S.Ct.
1200 (April 28, 1975) ......
Memoirs v. Massachusetts, 383 U.S.
413, 420, 86 S.Ct. 975, 978,
EN a ae ae ee ee
Michigan ex rel. Cahalan v. Diversified
Theatrical Corp., 396 Mich. 244,
240 N.W.2d 460 (April 1, 1976) . .
Miller v. California, 413 U.S. 15, 25,
37 L.Ed.2d 419, 431, 93 S.Ct.
2607 (June 21, 1973) ....e-«-.
Mugler v. Kansas, 123 U.S. 205, 210
DT... « ¢ 6 6 6 «« or
Near v. Minnesota, 283 U.S. 697, 51 S.
Ct. 525, 75 L.Ed. 1357 . . 38, 39,
People ex rel. Busch, et al. v. Pro-
jection Room Theater, et al.,
16 Cal.3d 360, 546 P2d 733, 128
Cal.Rptr. 229. . . .9, 10, 1l, 12,
People ex rel. Busch, et al. v. Pro-
jection Room Theater, et al.,
Cal.3d 42, 550 P.2d 600, 130
Cal.Rptr 328 (June 1, 1976)
aes 6 @'e ote See OB, 0, 4,
People ex rel. Camil v. Buena Vista
Cinema, 57 Cal.App.3d 497, 129
Cal.Rptr. 315 (April 21, 1976) ..
People ex rel. Camil, City Attorney
of Duarte, California v. Super-
ior Court of California, Coun
of Los Angeles, No. 75-820,
U.S. , 47 L.Ed.2d 348,
S.Ct. ~ (Mar. 1, 1976). 2, 8, 15,
12,
40,
15,
50,
26,
51
12
52
10
51
24
27
-vi-
People ex rel. Van de Kamp v. Pro-
jection Room Theater, No. 76-
40, _U.S. , L.Ed.2d
’ S.Ct. «eee ees ll,
Roth-Alberts, 354 U.S. 476, 1 L.
Ed.2d 1498, 77 S.Ct. 1304
? «6 6 «6 6 @ 6 See eee
Southeastern Productions, Ltd. v.
Conrad, 420 U.S. 546, 43 L.Ed.
2d 448, 95 S.Ct. 1239 (March 18,
97S) we ee ee ere ves oe
Sweeton, Eugene, Chief of Police,
City of Huntsville, Alabama v.
General Corporation, No. 75-1011,
__U.S. __, 47 L.Ed.2d 753,
__S.Ct. _—s« (March 29, 1976)...
State of Ohio ex rel. Ewing v.
"Without a Stitch", 37 Ohio St.
2d 95, 307 N.E.2d 911, 914 ....
United States v. Raines, 362 U.S. 17,
80 S.ct. 519, 4 L.Ed.2d 524 ...
United States v. Rebhuhn, 109 F.2d
512 cert. den. 60 S.Ct. 974 ...
United States v. Thirty-seven Photo-
Fraps. 402 U.S. 363, 28 L.Ed.
822, 91 S.Ct. 1400 (1971) ...
U. S. Manufacturing and Distribu-
ting Corp. v. City of Great
Falls, 546 P.2d 522 at p. 526
o£ SS Ba ee
United States Code Sections
a8 U.8C. Geotion 1275703) « «ce ce ees
Federal Rules of Civil Procedure
ree .-*. 6 ace
23,
4l,
9,
50,
50
41
10
42
43
48
Rules of the Supreme Court of the United States
Rule 19(1) (a) - P ay Om hve he . . . . .
United States Constitution
First Amendment ......e.-. oe
Tenth Amendment .....+¢+«e¢s-s. —
Fourteenth Amendment ....+4+e¢«-s.
Ohio Rules of Civil Procedure
Rule 65(B)(2) .. - 2+ ++ eee eee
California Statutes and Codes
Civil Code Sections:
3479 el * * * — .* _ oo * > al * . 7,
meet eeeeeee bees Ve
Code of Civil Procedure Sections:
Sey sce eeee eee eene
my seseeeeanneweees :
, er ee a a
904.1(f£) . Se ££ 2 2 2&2 f= ¢€ . . . . .
Penal Code Sections:
Pe a a . * 6-8
5,
4,
13,
45
49
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No. 76-
PEOPLE OF THE STATE OF CALIFORNIA ex rel.
WILLIAM CAMIL, City Attorney of the City of
Duarte, California,
Petitioner,
vs.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF LOS ANGELES,
Respondent,
BUENA VISTA CINEMA, being a building structure
containing approximately 3,440 square feet (80'
x 43"), located on real property commonly known
as 1345 East Huntington Drive, Duarte, Califor-
nia; STEPHEN E. TILLANDER, d.b.a. Buena Vista
Cinema; DIVERSIFIED REALTY FUND "A", a limited
partnership; TITLE INSURANCE AND TRUST COMPANY,
a California Corporation; DUNN PROPERTIES COR-
PORATION, a California Corporation; JOHN DOES
1 to 10,
Real Parties in Interest.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEAL,
SECOND APPELLATY DISTRICT
The Petitioner, People of the State of
California ex rel. William Camil, City Attorney
of the City of Duarte, California, respectfully
prays that a writ of certiorari issue to review
the judgment by the Court of Appeal, Second
Appellate District, denying a petition for a
writ of certiorari and/or, in the alternative,
mandate in People of the State of California
ex rel. William Camil, City Attormey of the
City of Duarte, California vs. Superior Court
of the Siate of California for the County of
Los Angeles (Buena Vista Cinema et al., real
parties in interest), 2d Civ. 49376.
The petition herein is the second petition
for writ of certiorari to the U.S. Supreme
Court, filed in this cause. On March l, 1976,
this Court denied the first petition for writ
of certiorari in People ex rel. Camil, City
Attorney of Duarte, California v. Superior
Court of California, County of Los Angeles
(Buena Vista Cinema et al., real parties in
interest), No. 75-820, _U.S.__, 47 L.Ed.2d
348, S.Ct. A copy of the statement of
facts which appeared at pp. 5-34 of the first
petition is attached at Appendix "A" to this
second petition for the benefit of this Court
and is encorporated by reference herein.
OPINIONS BELOW
A copy of the minute order of Superior
Court Judge Norman Dowds, filed on August 2,
1976, denying petitioner's motion for a prelim
inary injunction is attached hereto at Appendix
"B". A copy of the reporter's transcript of
such hearing appears at Exhibit "10" to the Pe-
tition for Writ of Certiorari And/Or, in the
Alternative, Mandate, With Supporting Memorandum
Of Points and Authorities.
The Court of Appeal, Second Appellate Dis-
trict, by a 2-1 vote, denied the Petition for
Writ of Certiorari And/Or, In The Alternative,
Mandate on the original papers and without an
Opinion. Associate Justice Lynn Compton was
of the opinion that the petition for an alter-
native writ should have been granted. A copy
of said order is attached hereto at Appendix
"C". The California Supreme Court entered an
order, denying the petition for hearing, without
writing an opinion. A copy of said order is
attached hereto at Appendix "D".
JURISDICTION
The order of the California Supreme Court
denying the petition for hearing was entered
on September 29, 1976. The petition for cert-
iorari herein was filed within 90 days of this
date. This Court's jurisdiction is invoked
under 28 U.S.C. section 1257(3).
QUESTIONS PRESENTED
1. Whether the First and Fourteenth
Amendments to the Federal Constitution were
intended to oust the Respondent Court of its
traditional equity powers to grant interlocu-
tory relief in a public nuisance abatement
action such as was presented in the trial
court below, where the autoptical evidence
is clear and convincing, and uncontroverted,
that the real party in interest, (Buena Vista
Cinema) has shown hard-core pornographic films
continuously and without interruption for the
past two years, and where the Duarte City Council
has taken official action on behalf of the
City to revoke the license of such theater,
but predicated such revocation on confirmation
by the respondent court in an adversary judicial
proceeding.
2. Whether the First and Fourteenth
Amendments to the Federal Constitution preclude
the granting of any interlocutory relief upon
the conclusion of an adversary hearing on a
preliminary injunction, brought as an ancillary
proceeding in a civil public nuisance abatement
action, which seeks the abatement of a theater
which is alleged to have exhibited obscene mo-
tion picture films as a regular course of con-
duct. j
3. Whether the First and Fourteenth
Amendments to the Federal Constitution preclude
the granting of an interlocutory order of "clo-
sure" in all public nuisance abatement actions
involving theaters which exhibit motion picture
films?
4. Whether the judicial system of the
State of California by denying the City of Duarte
a prompt judicial ‘forum in which to contest
the right of the real party in interest to car
mercially exhibit the hard-core films which
appeared in the evidence in support of the m-
tion, has deprived the citizens of the City
of Duarte, California, as citizens of the Uni-
ted States of:
A. Due process of law and equal
protection of the law; and
B. The police power and “hame rule"
authority which is inherent in municipal
authority; and
C. ne of the fundamental rights
essential to the concept of well-ordered
liberty; namely, the right to enjoy "car
mon decency" and to live in a community
whose public morals, mcral values, and
environment are free from the illegal,
degrading, and corrupting influences
of such patently hard-core pornography.
5. Whether the facts specifically pleaded
in the complaint and the time-motion studies~
of 169 motion picture films submitted as proof
on the motion for a preliminary injunction,
indisputably established the right of the peti-
tioner, City of Duarte, to a preliminary injunc-
tion, and confirmation of its license revocation,
and whether it was an excess of jurisdiction
for the respondent court to refuse to assume
jurisdiction and grant such immediate relief
as to each of the 169 described pornographic
films?
CONSTITUTIONAL PROVISIONS INVOLVED
The pertinent provisions of the First
and Tenth Amendments to the Constitution are
set forth in Appendix "E".
STATUTORY PROVISIONS INVOLVED
Chapter 7.5 of the Penal Code of Califor-
nia prohibits the sale, distribution etc.
. Of “obscene .matter." Penal Code section 3ll(a),
defining "obscene matter", is printed at Appen-
dix "F".
Sections 3479 and 3480 of the Civil Code
of California, containing the provisions defin-
ing what constitutes a civil public nuisance,
are set forth at Appendix "G".
Section 731 of the Code of Civil Procedure
of California, authorizing the City Attorney
to prosecute civil public nuisance abatement
actions when directed by the City Council,
is printed at Appendix "Ii".
Section 527 of the Code of Civil Proced-
ure of California, containing the provisions
relating to the granting of preliminary injunc-.
tions, is printed at Appendix "I".
Duarte City Ordinance #398, passed and
adopted July 13, 1976, and Duarte Council Resolu-
tion #76-28, passed and adopted July 13, 1976,
are set forth at Exhibit "2" to the "Petition
for Writ of Certiorari And/or, In The Alterna-
tive, Mandate, With Supporting Memorandum
of Points and Authorities", on fiie with this
Court as a part of the record herein, and a
photo-reduced copy is attached at Appendix "J"
and Appendix "K" to this Petition.
STATEMENT OF THE CASE
For the past two years, the real party
in interest herein has been exhibiting hard-core
pornographic films at the Buena Vista Cinema,
located in a neighborhood shopping center in
Duarte, California. During these two years,
the City of Duarte has sought, unsuccessfully,
to obtain entrance to a judicial forum to contest
the legality of that operation cm the theories
of a public nuisance abatement and declaratory
judgment action. A petition for a writ of cert-
iorari was prosecuted to this Court for relief,
and the same was denied in William Camil, City
Attorney v. Superior Court, et al., No. 75-820,
_U.S._, 47 L.Ed.2d 348, S.Ct. =‘ (March 1,
1976). (See "Statement of Facts" in No. 75-820,
reproduced herein at Appendix "A" to this peti-
tion).
Three days after this Court denied petition-
er's first application for a writ of certiorari,
the California Supreme Court, as if on signal,
handed down its first decision in People ex
rel. Busch, et al. v. Projection Room Theater,
et al., 16 Cal. 3d 360, 546 P2. 733, 128 Cal.
Rptr. 229, upholding the public nuisance abate-
ment concept, but leaving open the question as
to whether "closure" of the premises could be
effected "since the U.S. Supreme Court has not
yet spoken on this difficult question." See
Busch, supra, at page 239.
Approximately three weeks later, this
Court refused to grant a hearing to an Alabama
case which involved the same problem. In Eugene
Sweeton, Chief of Police, City of Huntsville,
Alabama v. General Corporation, No. 75-1011,
_U.S._, 47 L.Ed.2d 753, S.Ct. _—- (March 29,
1976), this Court denied a petition for writ
of certiorari which requested review of an ad-
verse state court decision on the constitution-
ality of a “closure” order in a case involving
a porno theater. This Court's adverse ruling
on the Huntsville petition was given nationwide
coverage in the news. Petitioner submits that
this court's refusal to examine the "closure"
issue in the Sweeton case set off the following
chain reaction which resulted ultimately in
the decision of the trial court below holding
that it had no jurisdiction to grant interlocu-
tory relief to the Petitioner herein.
Three days after the Sweeton decision
was announced to the newspapers, the Michigan
Supreme Court acted in a public nuisance abate-
ment case which had been under submission for
a considerable period of time, and reversed
a Michigan Court of Appeals order of "closure"
of several porno theaters in Michigan ex rel.
Cahalan v. Diversified Theatrical Corp., 396
Mich. 244, 240 N.W.2d 460 (April 1, 1976).
Thereafter in the California jurisdiction, on
a petition for a rehearing which cited the above
precedents, the California Supreme Court re-
aligned itself from its 4-3 posture in the first
Busch decision, supra, to a 5-2 posture, vacated
its prior opinions, and reversed itself m@m its
previous estimate as to what this Court would
ultimately hold on the "closure" issue. See
People 2x rel. Busch, et al. v. Projection Roam
Theater, et al., 17 Cal. 3d 42, 550 P.2d 600,
130 Cal.Rptr. 328 (June 1, 1976). The Califor-
nia Supreme Court's indecisive opinion in the
second Busch decision, supra, caused the trial
court below to reluctantly rule that, under
constitutional principles, the Court had no
jurisdiction to grant interlocutory relief in
such cases. See the reporter's transcript
for the August 2, 1976, hearing on the motion
for a preliminary injunction at Exhibit "10" to
the Petition for a Writ of Certioari And/Or, In
The Alternative, Mandate, filed in the state
court below.
A petition for writ of certiorari in the
Busch case was denied by this Court on Nover-
ber 1, 1976 in People ex rel. Van de Kamp v.
Projection Room Theater, No. 76-340, _ U.S.
_» _L.Ed.2d_, S.Ct. _. All of the rea-
sons stated in said petition to this Court apply
equally as well to this petition. Petitioner
submits, however, that this Court's denial of
a writ therein should not control this case.
The California Supreme Court's decision was
a narrow ruling on a demurrer, and the ambiguous
language regarding the type of relief which
might be accorded under federal standards was,
at that stage, only dictum. / the statenent of
facts herein plead a different cause. Here the
City has sought and been denied judicial relief
i/ In its opinion in Busch, supra,the Court
specifically noted that result at p. 339:
“We emphasize that the proceedings now
before us remain at the pleading stage. Hav-
ing determined that plaintiffs' complaint
is sufficient to state a cause of action
based upon a general nuisance theory, we
consider it inappropriate to describe in
detail the precise dimensions of the injunc-
tive and other relief which might be suitable
in this and the related cases.
for two years. Further, the application for
relief is as to a trial court's erroneous appli-
cation of federal law at a preliminary injunc-
tion trial, based upon the ambiguous Busch
language (See p. 19, supra.). In addition,
if this Court denies review, the City will,
in all likelihood, be denied its remedy under
the law for all time.2/
If tliis were not bad enough, the defense
industry has been able to parlay the second
Busch opinion into a broad holding in Califor-
nia trial courts that such summary relief can-
not be granted in massage parlor, red light
abatement cases involving businesses which
are nothing more than simple whorehouses. As
a result “confusion abounds” in this area of
the law. Compare Mugler v. Kansas, 123 U.S.
205, 210 (1887). =
2/ The cause will not get to trial for six months
to a year, and there is little doubt but that
the “artful dodgers", at that point, will either
(1) have abscondeds see, on remand, Huffman v.
Pursue, Ltd., 420 U.S. 492, _U.S.__, 43 L.Ed.2d
482, 95 S.Ct. _ March 18, 1975); or (2) plead
mootness, see, on remand, Marks et al. v. Leis,
et al., U.S. 43 L.Ed.2d 482, 95 S.Ct. 1200
(April 28, 1975). Further, even if the matte.
does get to trial, review of the summary relief
issue, herein raised, will not reach this Court
for several more years, at which time it will
be subject to a “mootness" defense.
STATEMENT OF FACTS
Petitioner William Camil, City Attorney
of the City of Duarte, California, is the Plain-
tiff in an action commenced in respondent court,
entitled: People of the State of California
ex rel. William Camil, City Attorney of the
City of Duarte, California vs. Buena Vista Cin-
ema et al., CA 107347, being a Complaint in
Equity to Abate A Public Nuisance at 1345 East
Huntington Drive, Duarte, California, under
sections 3479 and 3480 of the Civil Code of
California, having been ordered to bring the
same by the City Council of the City of Duarte,
pursuant to the authority of sectio 731 of
the California Code of Civil Procedure. For
the two-year period commencing on or about June
28, 1974 and continuing uninterruptedly up to
and including July 16, 1976, the date of filing
of petitioner's (plaintiff's) (third) motion
for a preliminary injunction in the respondent
court below, real party in interest Buena Vista
Cinema has been exhibiting hard-core porno-
graphic motion picture films at that address.
The above described public nuisance actim
has heretofore been before the California Courts
on three petitions for extraordinary relief:
(1) 2d Civ 4.526, seeking an order requiring
the trial court to vacate its order of December
19, 1976 which had denied a (first) motimm for
a preliminary injunction and sustained the de-
murrers to the causes of action pleaded in People
of the State of California ex rel. William Camil,
City Attorney of the City of Duarte, California
v. Buena Vista Cinema et al., Civil Action 107347
and City of Duarte, a Municipal Corporation,
and James J. Coughlin v. Buena Vista Cinema
et al., Civil Action 107771; (2) 2d Civ 46061,
seeking an order requiring the trial court to
vacate its order of March 3, 1976 which had
denied a (second) motion for a preliminary in-
junction and had, upon a reconsideration of
its original ruling on the demurrers, again
sustained the demurrers to the aforementioned
causes of action and required the plaintiff
to file an amended complaint in CA 107347 pre-
dicated upon Civil Code sections 3479 and 3480;
and (3) 2d Civ 46869, seeking an order requiring
the trial court to vacate its order of April
17, 1975 which placed the defendants’ demurrer
to the First Amended Complaint in Civil Action
107347 off calendar to await the decision of
the California Supreme Court in Busch et al.
v. Projection Roam Theater, et al., L.A. 30432-
30436. All three petitions were summarily
denied.?/
Petitioner's First Amended Complaint, which
is presently before the Respondent Court, was
authorized by Judge Max F. Deutz's ruling on
March 3, 1976 (See Exhibit "1" to the "Petition
for Writ of Certiorari And/Or In The Alternative,
Mandate” filed in the Court of Appeal on August
24, 1976 at page 35, lines 6-22). On April 4,
1975, Real Parties in Interest herein appeared
by Attorney Jonathan Lappen and filed a demurrer
to the First Amended Complaint and on April 17,
1975, Judge August Goebel placed that demurrer
off calendar to await the ruling of the Califor-
nia Supreme Court in People ex rel. Busch et
al. v. Projection Room Theater, supra. The
demurrer of Real Party in Interest (defendant)
3/ See “Statement of Facts” at Appendix "A" to
this petition. See also the statement of the
chronological facts of this action, set forth
at Exhibit "1" to the “Petition for Writ of
Certiorari And/Or In The Alternative, Mandate”
(being paragraphs I through L, at pp. 1-57 of
the above-described third petition for writ of
mandate entitled People ex rel. Camil v. Superior
Court, 2d Civ 46869). A calendar of those events
for the years 1974-1976 is set forth on page
4(a) of the petition for a hearing filed in the
California Supreme Court on September 10, 1976,
a copy of which is filed with this Court as a
part of the record herein.
Diversified Realty Fund "A", to the First Amended
Complaint, dated October 24, 1975, was similarly
placed off calendar by Judge August Goebel
on November 24, 1975. Real Party in Interest
(defendant) Dunn Properties was granted an
open extention of time in which to appear,
on condition that Dunn Properties would waive
the 60-day period of C.C.P. 437(c) as to Dunn
Properties, and would stipulate that a Motion
for Summary Judgment, if filed, might properly
include them as defendants.
On March 4, 1976, the California Supreme
Court handed down its first decision in People
ex rel. Busch v. Projection Room Theater, 16
Cal. 3d 360, 546 P.2d 733, 128 Cal.Rptr. 229.
In the majority opinion (Richardson, Sullivan,
McComb and Clark), filed @m March 1, 1976,
the California Supreme Court stated at page
239, in relation to the power of the trial
court to grant immediate relief by interlocutory
closure and/or injunction:
". . . The relevant principle derived
fram the foregoing cases is that, except
in extremely limited situations (see United
States v. Thirty-seven Photographs, supra,
402 U.S. 363), no injunctive relief, whether
temporary or permanent in nature, may
be afforded until defendant has been given
a full and fair judicial hearing on the
issue of obscenity, and an opportunity
to obtain a prompt judicial review of that
issue by the state appellate courts.
We express no opinion upon the further
question whether the court may, in addition,
either close the premises entirely or en-
_join further 'obscene' exhibitions regarding
materials not yet adjudged obscene. Several
cases suggest that such further forms of
relief would be appropriate and constitu-
tionally permissible. (See People ex rel.
Hicks v. Sarong Gals (1974) 42 Cal.App.
3d 556, 562-563; Bloss v. Paris Township,
supra, 157 N.W. 2d 260; Grove Press, Inc.
v. Flask, supra, 326 F.Supp. 574, 578-580;
Oregon Bookmark Corporation v. Schrunk
(D. Ore. 1970) 321 F.Supp. 639; State ex
rel. Cahalan v. Diversified Theatrical
Corp., supra, 229 N.W. 2d 389, 396-397;
United Theaters of Florida, Inc. v. State
ex rel. Gerstein (Fla. Ct. App. 1972) 259
So. 2d 210, 212-213, vacated and remanded,
419 U.S. 1028.). Other cases have held
that such relief would constitute an invalid
prior restraint of presumptively protected
materials (Gulf States Theaters of Louisiana,
Inc. v. Richardson (La. 1973) 287 So. 2d
480, 489; Mitchem v. State ex rel. Schaub
(Fla. 1971) 250 So. 2d 883, 886-887; New
Rivieria Arts Theater v. State, supra, 412
S.W. 2d 890, 893-895; Sanders v. State,
supra, 203 S.E. 2d 153, 156-157; State
ex rel. Little Beaver Theatre, Inc. v.
Tobin, supra, 258 So. 2d 30, 32; State
ex rel. Ewing v. ‘Without A Stitch’, supra,
307 N.E. 2d 911, 917-918.) Since the Uni-
ted States Supreme Court has not yet spoken
on this difficult question, and since in
this posture of the case the issue is not
before us, we leave the question open for
further consideration." (Our emphasis).
A petition for rehearing was filed by the defen-
dants in that case and the California Supreme
Court extended its jurisdiction to act on the
same for 90 days.
On June 1, 1976, the California Supreme
Court vacated its opinions filed on March 4,
1976, and handed down new opinions in People
ex rel. Busch v. Projection Room Theater, 17
Cal. 3d 42, 550 P.2d 600 130 Cal.Rptr. 328,
in which a new majority (Richardson, Sullivan
and Wright, with McComb and Clark concurring
and dissenting) upheld as against a general de-
murrer, a cause of action under the general pub-
lic nuisance statute against a theater which
exhibited obscene motion picture films as a
regular course of conduct, but omitted that
portion of the March 4, 1976 opinion referred
to above, and inserted in place thereof the
following dictum that the federal constitution
and decisions of this Court would not permit
interlocutory relief or "closure":
"In the cases at bench, in addition
to relief under the Red Light Abatement
Act (Pen. Code, 611225 et seq.), plaintiffs
seek a preliminary injunction enjoining
and restraining defendants 'from conducting
and maintaining said premises hereinabove
described . . . for the purposes of lewd-
ness and from permitting such acts to take
place therein and thereon... (and fur-
ther pray that they) be perpetually enjoined
fram operating and conducting said premises
as a public nuisance.’ Both in their briefs
and at oral argument plaintiffs have made
abundantly clear that, as the prayers of
their complaints state, the relicf they
seek is the abatement and closing down
of movie theaters and bookstores exhibiting
-20- -21-
by plaintiffs are constitutionally imper-
missible. (See General Corporation v. State
ex rel. Sweeton (Ala. 1975) 320 So. 2d 668,
675 (plurality opn.); Gulf States Theaters
of Louisiana, Inc. v. Richardson (La. 1973)
and selling films and magazines determined
to be obscene. Although w have concluded
upon well recognized principles of pleading
that plaintiffs' complaints state actionable
causes for the enjoining of the exhibition
and sale of specific obscene materials,
we are satisfied that to grant the relief
sought by plaintiffs (i.e. closing down
the premises in question) would result
in a full and pervasive prior restraint
upon the freedom of sneech and of the
press in violation of the First and Four-
teenth Amendments to the United States
Constitution. (See Near v. Minnesota
(1931) 283 U.S. 697, 711-715, 720; Bantam
Books, Inc. v. Sullivan (1963) 372 U.S.
58, 70-71; Freedman v. Maryland, supra,
380 U.S. 51, 57; Carroll v. President
and Conmissioners of Princess Anne (1968)
393 U.S. 175, 180-181; see and compare
Kingsley Books, Inc. v. Brown, supra, 354
U.S. 436; see also Perrine v. Municipal
Court (1971) 5 Cal. 3d 656, 664-665; Flack
v. Municipal Court (1967) 66 Cal. 2d 981,
985-990, passim.) The Courts of a number
of our sister states have similarly held
that such prior restraints as here sought
287 So. 2d 480, 489; Mitchem v. State ex
rel. Schaub (Fla. 1971) 250 So. 2d 883,
886-887; New Rivieria Arts Theater v. State,
supra, 412 S.W. 2d 890, 893-895; Sanders
v. State, supra, 203 S.E. 2d 153, 156-157;
State ex rel. Little Beaver Theater, Inc.
v. Tobin, supra, 258 So. 2d 30, 32; State
ex rel. Ewing v. ‘Without A Stitch', supra,
307 N.E. 2d 911, 917-918; but see People
ex rel. Hicks v. Sarong Gals (1974) 42
Cal.App. 3d 556, 562-563 (117 Cal.Rptr.
24); Bloss v. Paris Township, supra, 157
N.W. 2d 260; Grove Press, Inc. v. Flask,
Supra, 326 F.Supp. 574, 578-580; United
Theaters of Fla., Inc. v. State ex rel.
Gerstein (Fla. Ct. App. 1972) 259 So. 2d
210, 212-213, vacated and remanded 419
U.S. 1028 (42 L.Ed. 304, 95 S.Ct. 510).
Thus, in Sanders, the Georgia Supreme
Court pointed out that 'One obscene book
on the premises of a book store does not
make an entire store obscene. The injunc-
tion closing this store and padlocking
it as a public nuisance necessarily halted
the future sale and distribution of other
printed material which may not be obscene,
thereby precluding the apolication of
the above procedural safeguards (prior
notice and prompt judicial hearing) and
creating an unconstitutional restraint
upon appellant. This broad result cannot
be reconciled with free expression under
our Constitution.’ (P. 157.)
We are aware of no reported cases
authorizing the closing of a bookstore
or theater, even after it hasbeen repeat-
edly determined judicially in a full ad-
versary hearing that all or substantially
all of the magazines or films exhibited
or sold therein are obscene. Indeed plain-
tiffs have directed our attention to no
such precedents, have presented nothing
to countermand or distinguish the author-
ities referred to above, and at oral argu-
ment stated they could find no authority
justifying the closing of bookstores in
such circumstances. While we have con-
cluded that a court of equity, having
determined particular magazines or films
to be obscene, after a full adversary hear-
ing, may enjoin the exhibition or sale
thereof by those responsible, we emphasize
that the closing of such bookstores or
theaters, either temporarily or permanently,
or the enjoining of the exhibition or sale
on said premises of magazines or films not
specifically so determined to be obscene,
constitutes an impermissible prior restraint
in violation of the First and fourteenth
Amendments to the United States Constitution.
We therefore hold that abatement in
the present action must: be directed to par-
ticular books or films which have been ad-
judged obscene following a fair and full
adversary hearing, rather than against the
premises in which the material is sold,
exhibited or displayed." (Our emphasis).
A petition for reconsideration and modifi-
cation of opinion, by the People, was denied on
July 15, 1976. A petition for writ of certiorari
was denied by this Court on November 1, 1976 in
People ex rel. Van de Kamp v. Projection Room
Theater, No. 76-340, U.S._, _LeEd.2d_, _
S.Ct. .
On July 13, 1976, the Duarte City Council
enacted Ordinance 398, as an emergency measure,
to conform Ordinance No. 369 to the decision
of the Court of Appeal in People ex rel. Camil
v. Buena Vista Cinema, 57 Cal.App. 3d 497,
129 Cal.Rptr. 315 (Apr. 21, 1976), petition
for hearing denied by the California Supreme
Court on June 17, 1976. At the same meeting,
the City Council considered photographic time-
motion studies of 72 motion picture films which
had been exhibited at the Buena Vista Cinema
during the 8 month period from November 6,
1975 through July 5, 1976 and, pursuant to
Ordinance 398, made findings of fact in Resolu-
tion 76-28, passed and adopted m July 13,
1976. In Resolution 76-28, the City Council
found that each of the 72 films was a lewd
film under Duarte Ordinance 398 and that the
Buena Vista Theater was a public nuisance,
being a place where lewd films were publicly
exhibited as a regular course of business.
Pursuant to Ordinance 398 and Resolution 76-28,
the City Council revoked all licenses and per-
mits which had previously been issued, subject
to confirmation by the Los Angeles Superior
Court in the judicial proceedings which are
required by Ordinance 398 and which were ordered
filed by the City Council in Duarte Resolution
76-28. A copy of Duarte Ordinance 398 and
Duarte Resolution 76-28 is attached as Exhibit
"2" to the "Petition for Writ of Certiorari
And/Or, In The Alternative, Mandate" and at Ap-
pendix "J" and "K" to this petition. |
Pursuant to the July 13, 1976 directive of
the Duarte City Council in Resolution 76-28,
Petitioner (plaintiff) on July 16, 1976, served
on Real Parties in Interest and filed a motion
for a preliminary injunction, as prayed for in
the First Amended Complaint on file in the Res-
pondent Court, and noticed the same for a hearing
on August 2, 1976, asking for the following re-
lief: .
(1) An interlocutory injunction against
the showing of 169 motion picture film:
named and described in Enclosure "A" to
Duarte City Council Resolution 76-28, as
programs 1-19 (36 films), programs 20-40
- (53 films), and programs 54-88 (78 films);
(2) A finding of fact, based upon the phys-
ical evidence which is before the court
(time-motion studies of 169 films) that a
public nuisance exists at the Buena Vista
Cinema; and
(3) A finding of fact that the City Council,
in applying Ordinance No. 398 to the instant
facts, did not act in an unconstitutional
manner when, pursuant to Resolution 76-28,
they revoked all licenses and permits
theretofore issued to such business,
subject to confirmation by the Court.
On July 22, 1976, Real Parties in Interest
(defendants) Buena Vista Cinema and Stephen
E. Tillander served and filed "Memorandum of
Points and Authorities in Opposition to Motion
for Pre*.minary Injunction."
On July 23, 1976, Petitioner (plaintiff)
lodged with the Clerk of Department 85 of Res-
pondent Court three boxes of proposed exhibits
containing the time-motion studies described
in Enclosures A-4 through A-6 to Duarte City
Council Resolution No. 76-28, being programs
54 through 88 exhibited at the Buena Vista Cin-
ema.
On July 27, 1976, Petitioner (plaintiff)
lodged with the Clerk of Department 85 of Res-
pondent Court two boxes of proposed exhibits
containing the time-motion studies described
in Petitioner's (Third) Petition for Writ of
Mandate in People ex rel. Camil v. Superior
Court, 2d Civ 46869. A copy (4-1 printed reduc-
tion) of one of such time-motim studies, ap-
pearing as Appendix A-2 in 2d Civ 46869 is
attached as Exhibit "12" to the "Petition for
Writ of Certiorari And/Or In The Alternative,
Mandate” on file in this Court as a part of the
record.
Qn July 28, 1976, Petitioner (plaintiff)
filed and served the declarations of Robert Mc
Guire, dated July 23, 1976, and Robert Plassmeyer,
dated July 23, 1976 attesting to surveillance
work done by said declarants of programs 54
through 88, exhibited at the Buena Vista Cinema.
On July 29, 1976, Petitioner (plaintiff)
lodged with the Clerk of the Court the Declaration
of James J. Clancy with an attached exhibit,
being a copy of the Petition for Writ of Mandate
with Memorandum of Points and Authorities in
People ex rel. Camil v. Superior Court, 2d Civ
46869.
On July 29, 1976, Petitioner (plaintiff)
served and filed "Supplemental Points and
Authorities in Support of Motion for Preliminary
Injunction and In Reply To Defendant's Points
and Authorities dated July 21, 1976."
Petitioner's (plaintiff's) motion for a
preliminary injunction came on for a hearing on
August 2, 1976, at 9:15 A.M. in Department 85
of the Respondent Court, with Judge Norman R.
Dowds presiding. A copy of the Reporter's Tran-
script of such proceedings on August 2, 1976,
(hereafter referred to as "R.T.") is attached
as Exhibit "10" to the "Petition for Writ
of Certiorari And/Or Mandate” on file in
injunction which was denied by Superior Court
Judge Deutz on March 3, 1976 (R.T. at p.3, line
3, through p.4, line 20.):
this Court as a part of the record. The Clerk Exh. "A" to "Vv" Time-motion Studies
informed the Court that he had heard from > = ae
Mr. Lappen, the attorney for the defendants, Soa & Saas 52)
who had filed a memorandum of points and author- Exh. "Ww" Lot Split Map
ities in opposition on July 23, 1976, and Exh. "x" Certified Copy of Duarte
that Mr. Lappen had indicated that he would ! Ordinance #369, passed
; and adopted Nov. 12,
not appear for the hearing and would submit 1974
the matter on the points and authorities in Bh. “Y on - P
nas , 4/ “i 2 rtified Copy of Duarte
Opposition (R.T. p.2, lines 18-28) .— Resolution 74-32, passed
The respondent court thereafter received = adopted Nov. 26,
in evidence on Petitioner's (Plaintiff's) i
(third) motion for a preliminary injunction Exh. "AA" to "DD" Sp Studies
the following trial court exhibits which were Gususens 22 ant 32
a part of the Court's file, having previously
, ; aoe : Exh. “EE” Affidavit of Robert
been received in evidence on petitioner's Perry, dated Nov.
(plaintiff's) (first) motion for a preliminary 25, 1974
4/ Defense Counsel Lappen called Petitioner's Exh. “FF" Affidavit of Robert
counsel (the undersigned) on Friday, July McGuire, dated Nov.
23, 1976 and informed him that he had read 23, 1974
the recent decisions and that although the
plaintiff might be able to get an injunction Exh. "GG" Affidavit of James J.
against what had already been shown, the deci-~ Clancy, dated Nov.
sion was meaningless “since they never show 23, 1974
the same film twice." Plaintiff's counsel
stated that he would like to have Mr. Lappen Exh. "HH" Affidavit of City
come into court and say that, to which Mr.
Lappen replied that he was not even going
to come to Court but was going to submit it.
Manager, Robert
Mitchell, dated Nov.
26, 1974
"TI"
= 37"
"KK"
ory =
"MM"
"NN"
"OO"
"pp "
Affidavit of Robert
McGuire, dated Dec.
17, 1975
Articles of Incorporation
for Dunn Properties
and United Professional
Planning, general
partner for Diversified
Realty Fund "A", Owner
of the realty
Grant deed of Mar. 31,
1972, showing Dunn
transferring realty to
Diversified Realty
Fund "A"
Trust deed executed by
Diversified Realty
Fund "A" with Dunn
Properties as bene-
ficiary
Certified copies of
City of Duarte records
Certified copies of
City of Duarte records
Photograph of Shopping
Center containing
Buena Vista Cinema
Photograph of Buena
Vista Cinema taken
Dec. 4, 1974
Exh. "QQ" Affidavit of City Mana-
ger, Robert Mitchell,
concerning the City
Council's consideration
of a guilty plea oa
criminal charge against
the Buena Vista Cinema
Exh. "SS" to "ZZ" Time-motion Studies of
and "AAA" to "DDDD"Programs 14 through 19
exhibited at the Buena
Vista Cinema
Exh. “EEE" Affidavit of Robert
Perry, dated Feb.
28, 1975
Exh. "FFF" Affidavit of Robert
McGuire, dated Feb.
27, 1975
The Court also received in evidence the
following exhibits which had theretofore been
lodged with the Clerk of the Court, as set forth
above. (R.T. p.4, line 21 through p.7, line 28):
"GGG" thru "PPP" (Box 4) Time-motion
Studies of 10 Programs
(Programs 20 through 29)
"900" thru "22Z" (Box 5) Time-motion
and "AAAA" | Studies of 11 Programs
30 through 40)
"BRBB” thru "MMM" (Box 1) Time-motion
Studies of 12 Programs
(Programs 54 through
65)
‘
"NNNN" thru "YYYY"
"ZZZZ" and "AAAAA"
thru “JJJJ"
"KKKKK"
"LLLLL"
"NNNNN"
"00000"
-32-
(Box 2) Time-motion
Studies of 12 Programs
(Programs 66 through 77)
Box 3) Time-motion
Studies of 11 Programs
(Programs 78 through 88)
Declaration of James
J. Clancy, dated
July 29, 1976
Declaration of Robert
McGuire, dated July
23, 1976 re Programs
54 through 88
Declaration of Robert
Plassmeyer, dated
July 23, 1976 re 3
programs
Certified copy of Duarte
Ordinance 398, passed
and adopted July 13,
1976
Certified copy of Duarte
Resolution 76-26, passed
and adopted July 13, 1976
Robert S. Perry was called as a witness
and stated that he was the office manager
for petitioner's (plaintiff's) counsel and also
the project manager for the Buena Vista Cinema
Project and had been since July of 1974. He
stated that he was the person who had executed
Exhibit "EE", dated Nov. 25, 1974, which set
forth the manner in which the time-motion studies
of the films were prepared. (R.T., p.9). He
identified Exhibit "PPPPP" as a time-motion
study of the program which had been exhibited
at the Buena Vista Cinema on July 12, 1976
(Program No. 89), and Exhibit "QQ000" as a time-
motion study of the program which had been ex-
hibited at the Buena Vista Cinema on July 18,
1976 (Program 90), and described the manner
in which those exhibits had been prepared. He
also stated that the time-motion studies in
boxes 1 through 5 had been prepared under his
direction and in the same manner (R.T. pp.9-15).
Exhibits "PPPPP" and "QQ0Q0" were thereafter
received in evidence (R.T. p.15, line 23).
Robert S. Perry testified that, as the
finance officer, he also paid the bills for
the surveillance program and that the approxi-
mate.cost of each program surveilled was $350.00,
and that the total cost of the photographic
work alone (77 programs which had been placed
in evidence) was about $27,000.00.2/
5/ An obvious fact which this Court has not stop-
ped to consider is that government has no way
of marshalling the evidence against the porno
theater except through this time-motion study
or other surveillance process. A subpoena duces
tecum cannot be employed unless there is a "date
(This footnote is continued on the next page.)
Upon the conclusion of the presentation
of Petitioner's (Plaintiff's) evidence, argu-
ment was heard as to (1) whether, under the
decision of the California Supreme Court in
People ex rel. Busch, et al. v. Projectim
Room Theater, et al., 17 Cal.3d 42, 550 P.2d
600, 130 Cal.Rptr. 328 (June 1, 1976), plain-
tiff was entitled to the extraordinary provi-
Sional remedy (preliminary injunction) (R.T.
p.18, line 27, et seq.), and (2) assuming the
extraordinary provisional remedy were available,
and the Court were to find the 77 programs
shown in the two-year period to be obscere,
whether the Court could close down the theater,
or was limited in the relief it might grant
to that of enjoining the exhibition of the
films which were before the Court. (R.T. p.23,
lines 4, et seq.) At the close of argument,
the respondent court denied petitioner's (plain-
tiffs') motion for a preliminary injunction
with the following ruling:
certain" for the production of the motion picture
film, which can only be achieved by setting a
trial date for a motion for a preliminary injunc-
tion. By inferring that such injunctive relief
may not be obtained, the Court is making it
procedurally impossible to bring the courtroom
weapons to bear on the moving target which a
weekly change of program presents!
(R.T. p.24, line 26, through p.25, line 1l):
"THE COURT: Well, as to fashioning
a remedy, I think you do have a remedy, and
that is going down to Department 1 and seek-
ing an early trial.
However, in this particular case, I
hope you don't pursue that right away, be-
cause I am going to deny the motion for pre-
liminary injunction and I hope that e will
seek a writ from the Court of Appeal, so
that the matter will go back to the — at
‘least to the Court uf Appeal and possibly
to the Supreme Court as soon as possible
in order to obtain a clear ruling on this.
matter.
It does seem to me that the Supreme
Court could have clearly stated whether
or not a preliminary injunction is available
in this kind of a case, since they knew
that a preliminary injunction motion was
pending in the Busch case."
And at page 26, lines 1 through page 27, lire
7:
"THE COURT: Well, in fairness to your
position, there is some other language in
the Busch case that throws the question
in doubt, but it seems to me that the langu-
age that I have quoted that says that you
must have a final adjudication of the spec-
ific film to be obscene precludes a deter-
mination on a preliminary injunction, since
that is a provisional remedy and all that
I do on an application for a preliminary
injunction is to determine, among other
things, whether you have established a rea-
sonable probability of succeeding at the
trial.
"The other language that I referred
to is on page 59 of the official decision
where the Court says:
"We emphasize that the closing
of such bookstores or theaters, either
temporarily or permanently, or the
enjoining of the exhibition or sale
« « ce,” amd so forth, '... ti-
tutes an impermissible prior restraint iolati +]
Constitution, —
"Well, if a temporary injunction could-
n't be given in any event, why did they
say ‘either temporarily or permanently'?
"But, taken as a whole, I take it
that the California Supreme Court has
told me, and I am of course bound by their
determination, that a preliminary injunc-
tion cannot be granted even though I may
be of the opinion that the films are ob-
scene. (6)
And furthermore, if you are going
to seek a writ, ‘which I hope you will,
I might also state that I view the Busch
case as precluding any kind of an injunc-
tion closing down the theater. It seems
to me that they are telling us that the
showing of particular films that have
been finally adjudged to be obscene can
be enjoined, but not the operation of
the theater.”
6/ The basis for Judge Dowd's ruling clearly pre-
sents a federal question, See Rule 19(1) (a) of
the Rules of the Supreme Court of the United
States.
MR. CLANCY: Thank you, Your Honor.”
(The proceedings were concluded.) (Qur emphasis).
A copy of the Minute Order of Judge Dowis,
filed on August 2, 1976, denying petitioner's
motion for a preliminary injunction is attached
to the Petition herein at "Apnendix "B".
A petition for Writ of Certiorari And/Or,
Mandate" was filed in the Court of Appeal on
August 24, 1976, requesting that trial judge
Norman Dowds be required to vacate his minute
order of August 2, 1976 determining that he had
no jurisdiction to grant relief, and show cause
why the August 2, 1976 Minute Order should not
be vacated and the conduct complained against
be enjoined and summary interlocutory abatement
effectuated.
On September 1, 1976, the "Petition for
Writ of Certiorari And/Or Mandate" was denied
by a 2-1 vote. Associate Justice Lynn Compton
was of the opinion that the Petition for an
Alternative Writ should have been granted.
On September 10, 1976, a Petition for Hear-
ing on the denial of the petition for an extra-
ordinary writ was filed in the California Supreme
Court, and on September 29, 1976 that Court
entered its order denying the hearing.
REASONS FOR GRANTING THE WRIT
A. Neither The Majority Nor The Minority
Opinions In Near v. Minnesota Ever
Intended The Result Reached Herein.
Petitioner contends that the .respondent
court has misconstrued the real import of Near
v. Minnesota, supra. The majority of the Court
in Near did not say that a trial court is auto-
matically ousted of its equity jurisdiction
every time a pornographer voices a "free speech"
¢laim. More succinctly, a first amendment
issue is not raised every time a piece of soiled
toilet paper is exposed to view in the Courtroom.
The constitutional fears expressed regarding
the application of the "padlock" laws to the-
aters such as the real party in interest, Buena
Vista Cinema, which regularly show nothing
but hard-core pornographic films (200 films
in a 2-year period) are groundless. Petitioner
submits that a close reading of the majority
and dissenting opinions in Near v. Minnesota,
283 U.S. 697, 51 S.Ct. 525, 75 L.Ed. 1357 will
demonstrate that the fact situation presented
to Judge Dowis was specifically excepted from
the confines of that "prior restraint" constric—
tion. The dissenting opinion in Near (Butler,
Van De Vanter, McReynolds and Sutherland)
establishes the fact that all nine justices on
the Near Court would disagree with the myth which
the Near citation is perpetuating.// The Near
dissent said:
"The opinion seems to concede that under
Clause (a) of the Minnesota law the business
Of regularly publishing and circulating
an obscene periodical may be enjoined as
a nuisance... ."
Not only did the Near majority of five justices
(Hughes, Holmes, Brandeis, Roberts, Stone) con-
cede, by their silence the above interpretation
placed on that decision by the four dissenters,
7/ In the Weekly Law Digest of January 31, 1975,
there is a quotation that would appear to be
particularly appropriate when one considers the
relationship between the trial court's ruling
herein and the Near precedent:
“Myths die hard. Constitutional myths are
no exception. Many a doctrine exists today
that can barely be traced to the conscious
intent of the Founding Fathers or the fram-
ers of the Fourteenth Amendment. The pattern
is familiar; a point is argued by imagina-
‘ tive counsel, adopted in decision by a
court, and ultimately, through the classic
process of reiteration and enlargement by
advocates and jurists, the doctrine is
established as an integral part of our
constitutional fabric... ."
-40- -4]-
but it was stated, positively, in the majority elle B. _The City Of Duarte's Porno Theater
Opinion (re prior restraint): | Problem Raises A Substantial Federal
"Qn similar grounds, the primary require- Question.
ments of decency may be enforced against
obscene publications ... ." elle In the 18 terms of Court since Roth-Alberts,
Petitioner submits that the correct rule 354 U.S. 476, 1 L.Ed. 2d 1498, 77 S.ct. 1304
of law to be applied to these facts is that (1957), was decided in June of 1957, the dockets
expressed in U.S. v. Raines, 362 U.S. 17, and decisions of this Court have chronicled a
80 S.Ct. 519, 4 L.Ed.2d 524 and by the dissent ele major governmental struggle over the public
in Near v. Minnesota, supra: morals of this nation (as they relate to human
"The defendant here has no standing | sexuality), between the constitutional powers
to assert that the statute is invalid of the government as a whole embodied in the
because it might be construed so as to ele Tenth Amendment (Police Power), and the counter-
violate the Constitution. His right vailing rights of the individual set forth in
is limited solely to the inquiry whether, the First Amendment. In the pattern which has
having regard to the points properly evolved from those decisions, this Court has
raised in his case, the effect of applying ele fashioned a procedural requirement to maintain
the statute is to deprive him of his the balance. As recently as the 1974 October
liberty without due process of law. Term, Justice Blackmun, writing the majority
This Court should not reverse the judgment Opinion for five justices, in Southeastern Pro-
below upon the ground that in some other ele ductions Ltd. v. Conrad, 420 U.S. 546, 43 L.Ed.
case the statute may be applied in a 2d 448, 95 S.Ct. 1239 (March 18, 1975) ruled
way that is repugnant to the freedom that minimal procedural safeguards had not been
of the press protected by the Fourteenth | provided to the individual, in a case where
Amendment..." ele government (the City of Chattanooga) sought to
deny the use of a municipal auditorium for pre-
sentation of the theatrical production "Hair".
See also: Freedman v. Maryland, 380 U.S. 51,
13 L.Ed.2d 649, 85 S.Ct. 734 (1965); United
States v. Tiiirty-seven Photographs, 402 U.S.
363, 28 L.Bd.2d 822, 91 S.Ct. 1400 (1971);
Blount v. Rizzi, 400 U.S. 410, 27 L.Ed.2d 498,
91 S.Ct. 423 (1971); Teitel Film Corp. v. Cusack,
390 U.S. 139, 19 L.Ed.2d 966, 88 S.Ct. 754
(1968). The central theme in all of these
decisions has been, as stated by Justice Black-
mun in Southeastern Productions Ltd., supra,
at page 460, that:
“a prompt final judicial determination
must be assured".
It would seem self-evident that "prior
restraint" and “free speech" are not the exclu-
Sive province of the individual, but are shared
equally with the community as a whole, for it
is only through the judicial system that the
community itself can "speak" collectively, so
as to reject that which is offensive to "public
morality" .8/ while the procedural requirement
8/ The fact that the Buena Vista Cinema has
been permitted to exhibit, since June 28, 1974,
daily and uninterruptedly, over 90 programs,
containing 200 hard-core pornographic films,
creates, for the young and old alike, an auto-
ptical illusion that such conduct is acceptable
to the California community. This is so becaus:;
the existence of such an operation is a matter
of a “prompt judicial determination," referred
to above, has always been discussed in the
framework of "prior restraint" and the "First
Amendment" rights of the individual to free
speech in the marketplace of ideas, there is
no reason to believe such procedural requirement
does not, for the very same reason, also bind
the state system where, as here, the same claim
is being presented by the commmnity itself,
under the name of representative government.
The petition herein asserts that procedural
requirement as a federal right - the right to
an. immediate hearing and determination.2/
which (1) is readily perceived by the senses
and (2) as such, assumes the form of "verbal
conduct". See Program 40 at Exh. "12" to the
"Petition for Writ of Certiorari And/Or In The
Alternative Mandate” and 4 Wigmore §1150 dis-
cussing “autoptic proference", and Justice
Brennan, speaking for the U.S. Supreme Court
in Sam Ginsberg v. N.Y., 390 U.S. 629 at 642
fn. 10 (1968).
9/ The judicial system in California, by its
refusal to provide a prompt forum for the issues
herein presented, has effectively imposed a
“prior restraint" on the Community's right to
"speak out". See the opinion of the Montana
Supreme Court in U.S. Manufacturing and Distrib-
uting Corp. v. City of Great Falls, 546 P.2d
522 at p. 526 (Feb. 25, 1976), which suggests
that a local community has an inherent right
to halt the type of conduct specifically pleaded
in the Complaint below. Is the right to an
immediate hearing a one-way street?
-44-
and all would hold that such evidence showed
the Buena Vista Cinema to be a public nui-
sance as a matter of law. By failing and
refusing to take judicial action on Peti-
tioner's motion for extraordinary provisional
relief from such moral nuisance per se,
the respondent court divested itself of
the fundamental jurisdiction which is in-
herent in its judicial power, the exercise
of which, under the instant facts, is made
mandatory by the federal constitution and
the respondent court's responsibility as
the ultimate arbiter and guardian of public
morals.
Petitioner contends that it has no appeal,
not any plain, speedy and adequate remedy from
the jurisdictional error of the respondent state
which is predicated uvon this federal question.
See Rule 19(1) (a) of the Rules of the Supreme
Court of the United States. While an appeal
would ordinarily lie under Civil Procedure Code
Section 904.1(f) "from an order . . . refusing
to grant . . . an injunction", the respondent
court's action was not an order which refused
to grant an injunction, but rather a refusal
to entertain jurisdiction for the purpose of
determining whether an injunction should issue.
Where such federal procedural safeguards do
not exist by statute, the State Court is re-
quired to fashion the same through judicial
construction and interpretation. See People
ex rel. Busch, etc., et al. v. Projection
Room Theater, et al., 17 Cal. 3d 42, 130 cal.
Rptr. 328 at 338.
Petitioner contends that the action of
the respondent court denying petitioner's
application for extraordinary relief was a
judicial act which is in excess of jurisdiction
in that:
(a) by failing and refusing to consider
plaintiff's request for extraordinary
provisional relief, respondent court
divested itself of the Equity jurisdiction
which is inherent in the decision of the
California Supreme Court in People ex rel.
Busch, et al. v. Projection Room Theater,
et al., supra, amd
(b) the evidence which the petitioner
offered in support of its motion, and which
was uncontroverted, showed: (1) that un-
der Near, supra, properly interpreted,
"free speech" was not a relevant issue,
and (2) the existence of a nuisance per
se. Reasonable minds would not differ
-46-
Further, an appeal would be inadequate, in
that any relief which might be obtainable in
the future in such appellate process would not
provide the City of Duarte with the summary
interlocutory abatement to which it is entitled,
under federal law and the exhibits which were
received in evidence by the respondent court.
Such a delay, in abating a moral nuisance per
se, does irreparable harm to the local community
in Duarte, California, and unreasonably deprives
its residents of the comfortable enjoyment of
life and property guaranteed them by the federal
constitution. Further, if such matter is not
litigated immediately, the Real Parties in
Interest will continue their illegal actions
up to and until the time in the distant future
the matter is called for trial, and then will
disappear. See footnotes 2 and 4 at pp.
12 ard 28.
C. The Federal Question Has An Easy
Solution.
The solution is simple. If the real parties
in interest object to the granting of temporary
relief after a hearing on a preliminary injunc-
tion, they cannot, at the same time, object
af}a
to the mandatory consolidation of that hearing
with the hearing on the final injunction, with
the intention of granting full relief, if such
is warranted, at the consolidated hearing. The
California Courts are obliged to adapt their
procedures so as to arrive at a Constitutional
result. In Busch the California Supreme Court
noted, in this context, at p. 336:
"Furthermore, the United States Supreme
Court recently emphasized within the fore-
going context that courts have an obliga-
tion to construe statutes in such a way
as to avoid serious constitutional doubts.
- « e" (Qur emphasis).
and, at p. 338:
"We are obliged to construe and inter-.
pret legislation in a manner which will
uphold its validity. (Citations). Thus,
. the courts have held that provision for
a prior. adversary hearing may be implied
by law in otherwise silent statutory pro-
visions."
This Court need only inform the states that it
is entirely acceptable to grant full relief
against porno theaters at the preliminary injunc-
ton stage, so long as the State procedures
allow the motion for a preliminary injunction
~48-
to be given an immediate "full blown" hearing,
if such appears to be necessary. The trial
courts in Equity, in accomplishing full and
fair justice, customarily have a wide discretion
to order a consolidation of the hearing q@m
the preliminary injunction with the hearing
on the final injunction. On this point, compare
Rule 65(a) (2) of the Federal Rules of Civil
Procedure, which provides for consolidating
the hearing of an application for a preliminary
injunction with the trial on the merits:
"CONSOLIDATION OF HEARING WITH TRIAL
ON MERITS. Before or after the conmence-
ment of the hearing of an application
for a preliminary injunction, the court
may order the trial of the action on the
merits to be advanced and consolidated
with the hearing of the application. .
The Advisory Committee's Notes make this observa-
tion:
"SUBDIVISION (a) (2). This subdivision
provides express authority for consolidat-
ing the trial on the merits. The authority
can be exercised with particular profit
when it appears that a substantial part
of the evidence offered on the application
-49-
will be relevant to the trial proper.
Repetition of evidence is thereby avoided.
The fact that the proceedings have been
consolidated should cause no delay in the
disposition of the application for the
preliminary injunction, for the evidence
will be directed in the first instance to
that relief, and the preliminary injunction,
if justified by the proof, may be issued
in the course of the consolidated proceed-
ings. Furthermore, to consolidate the pro-
ceedings will tend to expedite the final
disposition of the action. It is believed
that consolidation can be usefully availed
of in many cases. . .. The subdivision
is believed to reflect the substance of the
best current practice and introduces no
novel conception."
Also compare Rule 65(B) (2) of the Ohio Rules of
Civil Procedure, modeled after the Federal Rules,
wherein the Ohio Trial Court may order the trial
of the action on the merits to be advanced and
consolidated with the hearing of the application
for the preliminary injunction, or alternatively,
that the evidence received at the preliminary
injunction hearing should be made a part of the
record of the hearing on the final injunction.
-50-
Note, also, the result reached by this Court
in State of Ohio ex rel. Ewing v. "Without A
Stitch", 37 Ohio St. 2d 95, 307 N.E.2d 911,
914, appeal dismissed for want of a substantial
federal question in 421 U.S. 923, 95 S.Ct.
1649, 44 L.Ed.2d 82, cited with approval in
Busch, supra, at p. 914.2%
10/ As noted in the Petition for a Writ of Cert-
iorari filed in this Court in the Busch case,
the analysis of the California Supreme Court's
majority opinion is clearly in error. See Pe-
tition for Writ of Certiorari in People ex rel.
John K. Van de Kamp v. Projection Room Theater,
No. 76-340 at pp. 17-20 and 23-24:
“The above holding of the California
Supreme Court appears to be in direct con-
flict with this Court's decision in Art
Theater Guild, Inc., et al. v. Ewing, 421
U.S. 923, 44 L.Ed.2d 82, 95 S.Ct. 1649
(1975) wherein this Honorable Court "dis-
missed for want of a substantial federal
question" an appeal from the Ohio Supreme
Court's decision in State ex rel. Ewing v.
“Without A Stitch", (Ohio, 1974) 307 N.E.
2d 911, thereby ruling on the merits (see
Hicks v. Miranda, _U.S.__, 45 L.Ed.2d 223,
95 S.Ct. 2281, 2289 (1975)) that an order
closing a theater which exhibited a single
obscene motion picture film for a period
of one year was constitutionally valid,
at least where the owner could obtain a
release by (a) appearing in court, (b)
filing a bond in the full value of the
property, and (c) demonstrating to the
court that he will prevent the nuisance
from being reestablished (i.e., the
-51-
The Respondent Court herein had a duty,
incident to its Equity Jurisdiction, to hear
and determine on the merits whether the exhibits
and testimony, which were received in evidence,
entitled Petitioners to a preliminary injunction, .
which would include both injunctive relief as
to obscene films which have been shown in the
past two year, and summary interlocutory abate-
ment by closure. Alternately, it had the duty
exhibition of the particular film declared
obscene). (See, "Without A Stitch", supra,
307 N.E. at 917-918 and U.S. Supreme Court's
comment on that case in Huffman v. Pursue,
Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.
Ct. 1200 (1975), at 43 L.Ed.2d 496-497,
n. 23 adn the last two sentences of text
preceding that footnote). Therefore, there
is nothing that would constitutionally
prevent at least this much abatement relief
in the instant case.
“However, we are not dealing here
with the exhibition of a single obscene
" motion picture film (as in "Without A
Stitch") but with the continual exhibition
of obscene films (R.T. in Projection Room
Theater case, p. 2, lines 30-32) on premises
which hold themselves out to the public
as specializing in “Adult Films" (R.T. in
Projection Room Theater case, pp. 188:5,
200 (incorporated into complaint at id.
4:18-26)). (f£ "*(a) quotation from Vol-
taire in the flyleaf of a book will not
constitutionally redeem an otherwise ob-
scene publiction'” (Miller v. California,
413 U.S. 15, 25, 37 L.Ed.2d 419, 431, 93
(This footnote is continued on the next page.)
-§2-
to consolidate the final hearing with the pre-
liminary hearing, if required, and/or send
it out to another Court for an inmediate trial
on the merits. In its minute order entered
on August 2, 1976 (Appendix "B") the respondent
court failed to perform its duty.
The above-described action of respondent
court, in refusing to entertain jurisdiction
and grant the preliminary injunction requested
by Petitioner (Plaintiff), after receiving
in evidence the above-described exhibits and
testimony, was an erroneous, arbitrary and
prejudicial abuse of its discretion and de-
prived petitioners of due process of law under
the federal constitution.
S.Ct. 2607, n. 7 (1973)), it would seem
that premises which specialize in obscene
films would similarly not be redeemed by
an occasional non-obscene films. "Where
(as here) the purveyor's sole emphasis is
on the sexually provocative aspects of his
publication(s) that fact may be decisive
in the determination of obscenity” (Ginz-
burg v. United States, 383 U.S. 463, 470,
16 L.Ed.2d 31, 37-38, 86 S.Ct. 942, 947
(1966); see also Memoirs v. Massachusetts,
383 U.S. 413, 420, 86 S.Ct. 975, 978 (1966)'
United States v. Rebhuhn, 109 F.2d 512
(cert.den. 60 S.Ct. 974; discussed in Ginz-
burg, 383 U.S. at 472-473) and other cases
‘cited in Ginzburg at n. 14 (383 U.S. at
472)."
CONCLUSION
For the reasons noted above and those stated
in the "Petition for a Writ of Certiorari
And/Or In The Alternative, Mandate" on file
as a part of the record herein, a hearing in
the above-entitled cause should be granted
and a writ should issue as prayed for in said
"Petition for Writ of Certiorari And/Or, Man-
date"
DATED: December 24, 1976
Respectfully submitted,
a. leuld
2G
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day
of December 1976, copies of the within Petition
for Writ of Certiorari were mailed, postage
prepaid, to the below listed parties to the pro-
ceedings. I further certify that all parties
required to be served have been served.
Honorable Judge Norman Dowds
L.A. Superior Court, Dept. 85
111 North Hill Street
Los Angeles, CA
Sharon Giannetta
720 West 86h Street
Los Angeles, CA
Lappen, Abelson & Harris
361 North Canon Drive
Beverly Hills, CA
Robert McMahon
1151 Dove Street, Ste. 290
Newport Beach, CA
Court of Appeal
3580 Wilshire Blvd.
Room 301
Los Angeles, CA 90010
APPENDIX A
Statement of Facts (pp. 5-34) of
Petitioner's first petition
for writ of certiorari to the
STATEMENT OF FACTS
A. Introduction
l/ Roth v. United States, 354 U.S. 476, 1 L.Ed.2d
1498, 77 S.Ct.
1304 (1957).
1/
In the 18 terms of Court since Roth-Alberts ~
was decided in June of 1957, the dockets and
decisions of this Court have chronicled a major
governmental struggle involving the public morals
of this nation relating to human sexuality.
In simple terms, that struggle can best be char-
acterized as a confrontation between the consti-
tutional powers of the government as a whole,
embodied in the Tenth Amendment and commonly
referred to as the police power, and the counter-
-6—
vailing rights of the individual, set forth in
the First Amendment. In the pattern which has
evolved from those decisions, this Court, as the
final arbiter in that struggle has fashioned
a procedural requirement to maintain the balance
in that contest. As recently as this past 1974
October Term, Justice Blackmun, writing the majority
opinion for five justices, in Southeastern Productions
Ltd. v. Conrad, U.S. __, 43 L.Ed.2d 448,
95 S.Ct. _—_—s (March 18, 1975) ruled that minimal
procedural safeguards had not been provided where
the City of Chattanooga sought to deny the use
of a mmicipal auditorium for presentation of
the theatrical production "Hair’'. The central
theme in all of these decisions 2/ has been, as
_ stated by Justice Blackmun in Southeastern Pro-
ductions, Ltd., supra, at page 460, that:
"a prompt final judicial determination must
be assured". °
While this procedural requirement of a "prompt
judicial determination" has always been discussed
_— = = m .
2/ Southeastern Promotions, Ltd. v. Conrad,
U.S. __, 43 L.Ed.2d 448, 95 S.Ct. (1975);
Freedman v. v. Maryland, 380 U.S. 51, 13 L.Ed. 24
649, 85 S.Ct. 734 (1965); United States v. Thirty
seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822,
91 S.Ct. 1400 (1971); Blount v. Rizzi, 400 U.S.
410, 27 L.Ed.2d 498, 91 S.Ct. 423 (1971); Teitel
Film Corp. v. Cusack, 390 U.S. 139, 19 L.Ed.2d
966, 88 S.Ct. 754 (1968).
= =
in the framework of "prior restraint" and the
"First Amendment" rights of the individual to
free speech in the marketplace of ideas, there
is no reason to believe such procedural require-
ment does not, for the same reason, also bind the
state system where the same claim is presented
by the community itself, at the instance of
representative government. It would seem self-
evident that "prior restraint" and "free speech''
are not the exclusive province of the individual,
but apply equally as well in the latter case of
representative government, for it is only through
the judicial system that the community itself
can "'speak"' collectively, so as to reject that
which is offensive to "public morality". 3/ This
petition asserts such a right and raises a ques-
tion as to whether or not we have been traveling
upon a one-way street.
3/ The fact that the Buena Vista Cinema, has
been permitted to exhibit since June 28, 1974,
daily and uninterruptedly, over 58 programs,
containing 116 hard core pornographic films,
becomes autoptical proof that such conduct is
acceptable to the community, since the existence
of such an operation is a matter which (1) is
readily perceived by the senses and (2) as such,
assumes the form of "verbal conduct". See 4
Wigmore 8 1150 discussing “autoptic proference",
and Justice Brennan, speaking for this Court
in Sam Ginsberg v. N.Y., 390 U.S. 629 at 642 fn.
10 (1968). The judicial system in California,
by its refusal to provide a prompt forum for the
issues herein presented, has effectively imposed
a “prior restraint" on the Community's right to
“speak out".
~8-
B. The Legislative Inquiry and Its
Determination.
On June 12, 1974, the Real Party in Inter-
est, Stephen E. Tillander of 8016 Radford Avenue,
North Hollywood, California, 91605, filed an
application for a business license for the
"Budna Vista Cinema" at 1345 East Huntington
Drive, Duarte, California, and on June 28,
1974, business license No. 477 was issued by
the City of Duarte to Stephen E. Tillander,
d.b.a. Buena Vista Cinema, 1345 East Huntington
Drive, Duarte, California. On July 3, 1974,
business license No. 728 was reissued to the
same person.
The "Buena Vista Cinema" is a small 80'
x 43' theater (capacity of 130 seats) construct-
ed in March of 1972, as a part of a small shop-
ping center complex, located at the corner of
Buena Vista and Huntington Drive in Duarte,
California. The shopping center contains
such family-centered stores as "Von's", "Thrifty
Drug Store'', and "'Sprouse-Ritz'"'. The theater
itself adjoins the Thrifty Drug Store.
Beginning on or about June 28, 1974, and
repeatedly and continuously thereafter, up to
and including November 27, 1974, the date of
the filing of the Complaint below, Stephen
E. Tillander, doing business as "Buena Vista
~9~—
Cinema", hereinafter referred to as "Buena Vista
Cinema", publicly exhibited, or caused to be
exhibited as a regular course of business, and
possessed for the purpose of such exhibition, a
group of 22 motion picture films, which were ex-
hibited continuous ly in eleven separate programs
of two films each. (A list of these films to-
gether with the dates on which they were exhibited
is attached hereto as Appendix B.)
Pursuant to its lawful powers under Article
11, Section 7 of the California Constitution,
Government Code Sections 38771, 38773, 38773.5,
Civil Code Sections 3479, 3480, 3491, and 3494,
and Code of Civil Procedure Section 731, the
City Council of the City of Duarte did, on Septem-
ber 10, 1974, pass and adopt Ordinance No. 367
which became effective on the 12th day of October,
1974, and did supersede the same with Ordinance
No. 369, adopted as an emergency ordinance on
the 12th day of November, 1974, which became
effective immediately on its adoption. Duarte
Ordinance No. 369 4/ defines the term "lewd" film
4/ A copy of Duarte City Ordinance 369 appears
at Exhibit A-l to the First Petition for Writ of
Mandate in L.A. 30396, 2d Civ. 45526. Said Exhibit
A-l also appears in this record as a part of
Exhibit 1 to the Petition (Third) for Writ of
Mandate on file herein. See Statement of Facts
herein at page 19 infra.
-10-
in terms of the Miller v. California require-
ments and declares that any and every place in
the City of Duarte where "lewd" films are pub-
licly exhibited as a regular course of business,
or possessed for the purpose of ‘such exhibition
is a public nuisance, and that any and every
"lewd" film which is publicly exhibited or pos-
sessed for such purpose in the City of Duarte is
a public nuisance per se; and establishes pro-
cedures for the abatement of such public nuisances
in the City of Duarte.
At its regular meeting on November 26, 1974,
the City Council of the City of Duarte did
meet and, pursuant to Ordinance No. 369, did
consider evidence in the form of six volumes
of time-motion studies of 22 of the above
described films.
By affidavit, the City Council was informed
that said time-motion studies had been prepared
from films exhibited at the Buena Vista Cinema
and contained a chronological series of photo-
graphs, timed in their relative order of
appearance, which photographs fairly and accu-
rately depict the sexual conduct visually por-
trayed on the motion picture screen of the ''Buena
Vista Cinema"' during the above mentioned dates.
Pursuant to Ordinance No. 369, the City
Council of the City of Duarte did, on November
Ss ming
26, 1974, act by Resolution No. 74-32,2/ and did
in Sections 3 and 4 thereof, find and declare
the "Buena Vista Cinema" to be a public nuisance
and each of the films listed in Appendix "A" to
be a "lewd'' film and a public nuisance per se
under such ordinance.
Pursuant to said Resolution No. 74-32, the
City Council of the City of Duarte did, in Sec-
tion 5 thereof, inform and give notice to all
persons having a legal or equitable interest
in the "Buena Vista Cinema" of the Council's
findings of fact as to the public nuisances in-
volved, and did order such persons to summarily
abate the same upon receiving notice, and in
Section 7 of said Resolution, did provide for
service of notice on such persons.
Pursuant to Sections 6 and 7 of said Reso-
lution No. 74-32, the City Council of the City
of Duarte did order Petitioner William Camil
as the City Attorney of Duarte to file a civil
action, pursuant to Code of Civil Procedure,
Section 731, seeking (A) abatement of such public
nuisances in judicial proceedings, as required
5/ A copy of Resolution No. 74-32 appears at
Exhibit A-2 to the First Petition for Writ of
Mandate in L.A. 30369, 2d Civ. 45526. Said
Exhibit A-2 also appears in this record as a
part of Exhibit 1 to the Petition (Third) for
Writ of Mandate on File herein. See Statement
of Facts herein at page 19 infra.
~12-
by Section 6 of Duarte Ordinance No. 369; (B)
a declaratory judgment (1) that the above described
films were "lewd" films under Ordinance No. 369,
and Resolution No. 74-32, and as such, public
nuisances per se, and (2) that the "Buena Vista
Cinema" was a public nuisance under Duarte Ordi-
nance No. 369 and Resolution No. 74-32; and (C) an
accounting, forfeitures and award of costs as are
authorized by Duarte Ordinance No. 369.
C. The Judicial Relief Sought
On November 27, 1974, Petitioner William
Camil, as City Attorney of the City of Duarte,
alleging the above facts, commenced a civil action
in the Superior Court of Los Angeles County 6/
pursuant to the authority of Code of Civil Pro-
cedure Section 731, with the filing of the
following: ;
1. A Complaint in Equity to Abate a Public
Nuisance under Duarte City Ordinance No. 369,
and for a Declaratory Judgment and Forfeitures,
being People of the State of California ex rel
William Camil, City Attorney of the City of
6/ A copy of the pleadings filed in Civil Action
107347 appears in this record as a part of Exhibit _
1 to the Petition (Third) for Writ of Mandate in
2d Civ. 46869 on file herein. See Statement of
Facts herein at page 19 infra.
—13—
Duarte, California vs. Buena Vista Cinema, et.al.,
No. C-107347.
2. Points and Authorities in Support
of Complaint in Equity to Abate a Public Nuisance
and for a Declaratory Judgment and Forfeitures.
As part of the relief in said civil action,
Petitioner, as the City Attorney of the City
of Duarte, sought to abate as a public nuisance
(1) the Buena Vista Cinema, 1345 East Huntington
Drive, Duarte, California, in Los Angeles County,
wherein lewd and obscene films have been and
are now being exhibited continuously since on
or about June 28, 1974, and (2) the positive
motion picture prints used by the operators of
Said theater as the means of exhibiting said
motion picture films at that theater. The time-
motion studies of each of the abovementioned
22 films which were considered by the City Council
of Duarte, were pleaded specially as exhibits
to said Complaint and incorporated therein by
reference. A summons was issued and service of
process was commenced as to all defendants named
in said action.
The Complaint alleged that each of the said
22 films was a "lewd" film as that term is defined
in Duarte Ordinance No. 369, in that each is a
film which (a) the average person, applying con-
temporary commmity standards would find, when
afte.
considered as a whole, appeals to the prurient
interest, and (b) depicts or describes patently
offensive representations or descriptions of (1)
ultimate sexual acts, normal or perverted, actual
or simulated, and (2) masturbation, and lewd ex-
hibition of the genitals and genital area, and
(c) when considered as a whole, and in the context
in which it is used, possesses no serious literary,
artistic, political, or scientific value. It was
further alleged that under Duarte Ordinance No.
369 and Resolution No. 74-32 each of such lewd
films is a public nuisance per se and the building
structure known as the "Buena Vista Cinema" is a
public nuisance, being a place in the City of
Duarte where "lewd" films are publicly exhibited
and possessed for such exhibition as a regular
course of conduct.
On December 2, 1974, Petitioner filed a
motion for Preliminary Injunction in C.A. 107347
and noticed the same for a hearing on December 16,
1974. Petitioner also filed a notice of lis pendens
in the County Recorders office giving notice of
the pendency of C.A. 107347.
A copy of the abovementioned Summons, Complaint,
Points and Authorities, Motion for Preliminary
Injunction and Notice of Motion for Preliminary
Injunction in People of the State of California
ex rel William Camil, City Attorney of Duarte
v. Buena Vista Cinema, et.al., No. C-107347, was
served on the following parties on the following
dates:
Dunn Properties Corporation
December 4, 1974;
Diversified Realty Fund "A"
December 5, 1974;
Title Insurance and Trust Company
December 4, 1974;
Stephen E. Tillander, dba Buena Vista Cinema
December 6, 1974;
On November 27, 1974, a Subpoena Duces Tecum was
issued and duly served on the projectionist and
person in charge of the Buena Vista Cinema, re-
quiring that the films, "After School Exams" and
"Gina, the Foxy Chick" be brought to Court at
the hearing set for December 16, 1974. On Decem-
ber 4, 1974, a Subpoena Duces Tecum was issued
and duly served on John Doe 2, the person in
charge of the Buena Vista Cinema, requiring that
the films "The Cheaters" and "Busy Bodies" be
brought to Court at the hearing set for December
16, 1974.
On December 11, 1974, Real Parties in Interest
Stephen E. Tillander and Buena Vista Cinema ap-
peared in said actions by attorney Jonathan Bailey
Lappen and filed Points and Authorities in Opposi-
tion to the Motion for Preliminary Injunction
in No. C-107347.
-16=
On December 17, 1974, the Petitioner as
Plaintiff in Civil Action C-107347 served and
filed the following papers on all parties to the
actions:
1. Memorandum of Points and Authorities in
reply to Real Party in Interest Tillander's Points
and Authorities in Opposition to the Motion for
a Preliminary Injunction in No. C-107347.
The Petitioner's Motions for a Preliminary
Injunction in Civil Action 107347 came on for
a hearing in Department 3 of the Los Angeles
Superior Court before the Honorable Max F. Deutz
on Tuesday, December 17, 1974, and Thursday,
December 19, 1974, at which time Jonathan Bailey
Lappen appeared as counsel for Real Parties in
Interest, Stephen E. Tillander and Buena Vista
Cinema. On December 19, 1974, on Petitioner's
Motion, Judge Deutz entered an order consolidat-
ing both actions (Nos. C-107347 and c-107771)2/
for all purposes. An oral stipulation was entered
into between Petitioner and Real Parties in Inter-
est Stephen E. Tillander and Buena Vista Cinema
7/ Civil Action 107771, entitled City of Duarte,
a Municipal Corporation and James J. Coughlin v.
Buena Vista Cinema et al. was based upon the Cali-
fornia Red Light Abatement Statute. A copy of
the pleadings in Civil Action 107771 appears in
this records as a part of Exhibit 1 to the Petit.on
(Third) for Writ of Mandate in 2d Civ. 46869 on
file herein. See Statement of Facts herein at
page 19 infra.
=—47—
in said actions, wherein it was agreed that a gen-
eral demurrer should be deemed to have been
filed by Real Parties in Interest Stephen E.
Tillander and Buena Vista Cinema on all grounds
stated in the Points and Authorities previously
filed by said Real Parties in Interest in oppo-
sition to the Motion for Preliminary Injunction.
At the hearing on Petitioner's Motion for
Preliminary Injunction in Civil Actions 107347
and 107771 on Thursday, December 19, 1974,
Petitioner filed with the Court additional
affidavits and exhibits regarding the nature
of the films being exhibited at the Buena Vista
Theatre subsequent to the action of the City
Council on November 26, 1974. (A list of these
affidavits and exhibits is attached hereto as
Appendix C.)
On the same date, Petitioner also filed
with said Court, a certified copy of the Police
Record before the City Council and considered
by them prior to the adoption of Duarte City
Council Resolution No. 74-32, reciting a crim-
inal charge filed on the films "Sexual Freedom
in the Ozarks" and "How to Bury a Stiff", which
were exhibited at the Buena Vista Cinema on
July 30, 1974, and a guilty plea entered to
the charge on Oct. 29, 1974.
On Thursday, December 19, 1974, further
exhibits were received in evidence by the trial
court during the presentation of the Petitioner's
case in chief on the aforementioned Motion for
Preliminary Injunction. (A list of these exhibits
is attached hereto as Appendix D.) Real Parties
in Interest offered no counter-affidavits.
At the conclusion of oral arguments on Thurs-
day, Dec. 19, 1974, Los Angeles Superior Court
Judge Max F. Deutz ruled orally from the bench.
In his oral rulings, Judge Deutz denied Petition-
er's Motion for a Preliminary Injunction and
sustained the Defendants’ demurrer to the com-
plaints in CA 107347:and 107771 on the grounds
that, under the law stated in Harmer et al. v.
Tonylyn Prod. Inc. et al., 23 Cal.App.3d 941,
100 Cal. Rptr. 576 (Mar. 21, 1972), Petitioners
could not state a cause of action under either
the Red Light Abatement Act or Civil Code sections
3479 and 3480 (common law public nuisance). Judge
Deutz also ruled that, under Lancaster v. Munici-
pal Court, 6 Cal.3d 805, 100 Cal.Rptr. 609 and
Harmer et.al. v. Tonylyn Prod., Inc., et.al.,
supra, Petitioner could not state a cause of
action as to C.A. 107347, under Duarte City Ordi-
nance 369, because of the combination of the law
stated in the Harmer case and the doctrine of
preemption.
On Dec. 27, 1974, Petitioner joined with
-—19—
others to file its original Petition in the Cali-
fornia Supreme Court, entitled People of the
State of California ex rel William Camil, City
Attorney of the City of Duarte, Petitioner, vs.
Superior Court of the State of California for
the County of Los Angeles, Respondent, and Buena
Vista Cinema et al., Real Party in Interest;
and City of Duarte, a Municipal Corporation,
and James J. Coughlin, Petitioners, vs. Superior
Court of the State of California for the County
of Los Angeles, Respondent, and Buena Vista Cin-
ema et al., Real Party in Interest, L.A. 30396
in which copies of the abovementioned pleadings
and papers filed in the two consolidated cases
were incorporated by reference as Exhibits A-1
through A-18 (C.A. 107347) and B-1 through B-9
(C.A. 107771) to the petition. Pursuant to an
order of Superior Court Judge Max F. Deutz, dated
Dec. 26, 1974, the time-motion studies of the
aforementioned 26 hard-core pornographic films
were also filed with the California Supreme Court.
On the same date, the California Supreme
acted on the petition and ordered the same and
the time-motion studies of the 26 hard-core motion
picture films transferred to the Court of Appeal,
Second Appellate District, where such case was
filed as 2d Civ. 45526.
On December 27, 1974, the Court of Appeal,
-~20-—
Second Appellate District, Third Division, filed
its opinion in Busch et al. v. Projection Room
Theater et al., 44 Cal.App.3d 111, 118 Cal.Rptr.
428, which held, contrary to Harmer v. Tonylyn
Productions, Inc., supra, that (1) "the continuous
operation of theaters specializing in pornographic
presentations (obscene motion pictures). . .
"is of a nature which, it could be found, ‘affects
at the same time an entire commnity,' " 118
Cal.Rptr. 428 at 431 and 434, and (2) that the
"exhibition of the obscene material described
in the complaint (time-motion studies of 10 films)
constitutes a nuisance because it is ‘indecent
or offensive to the senses' in the sense in which
those terms are used in the nuisance statutes'",
and (3) that the allegations of the complaints
were sufficient to bring the alleged activity
of defendants within the definition of public
nuisance and that . . ."Civil Code Sections 3479
and 3480 established plaintiffs' standing under
section 731 of the Code of Civil Procedure to
bring a civil actic.. to enjoin the public nuisance
involved".
On January 9, 1975, Petitioner, as the plain-
tiff in Civil Action 107347 filed a Notice of
Motion for a Reconsideration of the Trial Court's
December 19, 1974 Oral Ruling from the Bench on
the Stipulated Demurrer and Plaintiffs’ Motion
afie
for a Preliminary Injunction in the consolidated
cases, People of the State of California ex
rel Wiliiam Camil, City Attorney of the City
of Duarte v. Buena Vista Cinema et al., CA 107347
and City of Duarte, A Municipal Corporation,
and James J. Coughlin v. Buena Vista Cinema et
al., CA 107771 and noticed the same for January
24, 1975.
On January 15, 1975, the Court of Appeal,
Second Appellate District, notified Petitioner's
counsel by a postcard that the Petition for a
Writ of Mandate in People of the State of Cali-
fornia ex rel William Camil, City Attorney of
the City of Duarte, Petitioner vs. Superior Court
of the State of California for the County of
Los Angeles, Respondent and Buena Vista Cinema
et al., Real Party in Interest; and City of
Duarte, A Municipal Corporation and James J.
Coughlin, Petitioner vs. Superior Court of the
State of California for the County of Los Angeies,
Respondent and Buena Vista Cinema et al., Real
Party in Interest, L.A. 30396 (2d Civ. 45526)
was denied.
On January 24, 1975, Los Angeles Superior
Court Judge Max F. Deutz heard oral argument
on the aforementioned Motion for Reconsideration
in Civil Action 107347 and Civil Action 107771.
At the conclusion of arguments, Judge Deutz ruled
-*
that the Court did have jurisdiction of the two
civil actions in the Trial Court below by reason
of the failure to execute the written Order of
Dismissal required by Civil Code of Procedure,
Section 58l1(d) and ordered the Clerk not to file
an Order of Dismissal but refused to act further
on Petitioner's Motion for Preliminary Injunction
and took the matter under submission. During
the oral arguments on January 24, 1975, Judge
Deutz indicated a general unwillingness to reset
the matter for a hearing on the Motion for a
Preliminary Injunction until the California
Supreme Court should rule on the Petition for
Hearing in Busch et al. v. Projection Room Theater,
et al., supra.
On January 27, 1975, Petitioner herein filed
a Petition for Hearing in the California Supreme
Court on the Denial of the Petition for Writ
of Mandate in People of the State of California
ex rel William Camil, City Attorney of the City
of Duarte, Petitioner, vs. Superior Court of
the State of California for the County of Los
Angeles, Respondent, and Buena Vista Cinema et
al., Real Party in Interest; and City of Duarte,
A Minicipal Corporation and James J. . »ghlin,
Petitioners vs. Superior Court of the State of
California for the County of Los Angeles, Respond-
ent, and Buena Vista Cinema et al., Real Party in
—23-
Interest, L.A. 30396 (2d Civ. 45526). In said
petition, Petitioner herein informed the Cali-
fornia Supreme Court that, subsequent to the
denial of the petition for Writ of Mandate by
the Court of Appeal on January 15, 1975, trial
court Judge Max F. Deutz had heard oral argument
on Plaintiffs’ Motion for Reconsideration and
on January 24, 1975 had ordered the Clerk not
to file an Order of Dismissal and had taken the
matter under submission. On February 13, 1975,
the Court denied the Petition for a Hearing.
On or about Feb. 27, 1975, the California
Supreme Court handed down its order extending its
jurisdiction to consider the Petition for Hearing
in Busch et al. v. Projection Room Theater et al.
for 30 days to March 27, 1975.
On February 21, 1975, the plaintiffs in Civil
Action 107347 and Civil Action 107771 filed a
second Notice of Motion for a Preliminary Injunc-
tion in People of the State of California ex rel
William Camil, City Attorney of the City of Duarte
v. Buena Vista Cinema et al., C.A. 107347 and
City of Duarte, A Municipal Corporation and James
J. Coughlin v. Buena Vista Cinema et al., C.A.
107771 and noticed the same for March 3, 1975
at 2:00 P.M.
On March 3, 1975, the Petitioner's Motions
for a Preliminary Injunction in Civil Actions
-34-
107347 and 107771, came on for a rehearing before
Judge Deutz in Department 54, with defense attor-
ney Jonathan Lappen appearing for defendant Buena
Vista Cinema and defendant Stephen E. Tillander.
At such hearing, further exhibits were received
into evidence, being time-motion studies of the
12 films exhibited at the Buena Vista Cinema sub-
sequent to the first hearing on the motion for
a preliminary injunction on December 19, 1974
up to and including March 3, 1975, the date of
such hearing. (A list of said exhibits is attached
hereto as Exhibit E.)
Upon the conclusion of the hearing on March
3, 1975, Judge Deutz sustained the Real Parties
in Interest demurrers to the cause of action based
upon the Red Light Abatement Act in City of Duarte,
A Municipal Corporation and James J. Coughlin
v. Buena Vista Cinema et al., C.A. 107771, without
leave to amend. The Court also sustained the
Real Parties in Interest's demurrer to the cause
of action based upon Duarte City Ordinance No.
369 in People of the State of California ex rel
William Camil, City Attorney of the City of Duarte
v. Buena Vista Cinema et al., C.A. 107347, with
leave to amend as to said cause of action. The
Court held the complaint "sufficient to get vour
foot in the door (under Busch et al. v. Projection
Room Theater et al., supra.)"’ but "(not) an
=26-
adequate complaint in order to go forward to
trial."" Judge Deutz also denied Petitioner's
Motion for a Preliminary Injunction. Judge
Deutz stated that ". . . the Court has expressed
its opinion before from the time and motions
study, I think it is quite clear that there is
no redeeming social significance of any sort to
these films and that they are obscene. I don't
know what will happen on the trial of the case,
but it is quite likely that an injunction will
finally issue, but this is not the time or place
for it. . ." At the previous hearing on the motion
for preliminary injunction on December 19, 1974
Judge Deutz said as to those 26 films". . . from
my preliminary observation it appears to me what
we are dealing with here is definitely hard-core
pornography. I haven't heard the sound tracks,
and I haven't seen the actual motion picture film.
But I have seen the timed sequences, and it is
clear in my mind that this is probably hard-core
pornography, but I am not making a finding on that
because I haven't everything before me. . ."
When Counsel for Petitioner restated his argument
that, were the Red Light Abatement Act applicable,
"the mandate of the State Legislature would require
relief to be granted on the motion for preliminary
injunction", the Court answered "Well, I understand
your point, but the Harmer case and the Busch case
"Ss
both held that the Red Light Abatement Act didn't
apply."
Pursuant to Los Angeles County Superior Court
Judge Max Deutz' ruling of March 3, 1975, that
Petitioner had stated a claim under Civil Code
Sections 3479 and 3480, Petitioner herein, on
March 10, 1975, filed its First Amended Complaint®/
in People of the State of California ex rel William
Camil, City Attorney of the City of Duarte, Cali-
fornia vs. Buena Vista Cinema, being a building
structure containing approximately 3,440 square
feet (80' x 43'), located on real property common-
ly known as 1345 East Huntington Drive, Duarte,
California; Stephen E. Tillander, dba Buena Vista
Cinema; Diversified Realty Fund "A", a Limited
Partnership; Title Insurance and Trust Company,
a California corporation; Dunn Properties Corpor-
ation, a California Corporation; Jess Wilder;
Inland Empire Enterprises, Inc., a California
Corporation; Philip A. Fishman; North American
Theatre Association, Inc., John Does 1 to 10,
No. C-107347.
On April 3, 1975, Petitioner herein (People
of the State of California ex rel William Camil,
8/ A copy of the First Amended Complaint in Civil
Action 107347 is a part of the record herein as
Appendix B-l to the Petition (Third) for Writ of
Mandate in 2d Civ. 46869 on file herein.
=-27—
as City Attorney of the City of Duarte, Cali-
fornia) again joined with others to file a second
verified Petition for Writ of Mandate in the
Court of Appeal in the same causes, entitled
Peopie of the State of California ex rel William
Camil, City Attorney of the City of Duarte, Peti-
tioner vs. superior Court of the State of Cali-
fornia for the County of Los Angeles, Respondent,
and Buena Vista Cinema, et al., Real Party in
Interest; and City of Duarte, A Municipal Corpor-
ation, and James J. Coughlin, Petitioner vs.
Superior Court of the State of California for
the County of Los Angeles, Respondent, and Buena _
Vista Cinema et al., Real Party in Interest, 2d
Civ. No. 46061. Said petition sought an alterna-
tive and preemptory writ requiring the Los Angeles
County Superior Court to show cause why it should
not be required to vacate its order of March 3,
1975, which had denied the plaintiffs’ Second
Motion for a Preliminary Injunction and, upon
a reconsideration of its original ruling on the
defendants’ demurrers, had again sustained the
demurrers to the aforementioned causes of action
pleaded in Civil Action 107347 (Duarte Ordinance
No. 369) and Civil Action 107771 (Red Light Abate-
ment Act). The Second Petition for a Writ of
Mandate in this litigation (2d Civ. 46061) was
denied by the Court of Appeal on April 8, 1975.
-28-
Petition for Hearing After Denial by the Court
of Appeal was denied by the California Supreme
Court on May 8, 1975.2/
On April 4, 1975S, Real Parties in Interest,
Stephen E. Tillander dba Buena Vista Cinema, Jess
Wilder, Inland Empire Enterprises, Inc., Philip
A. Fishman and North American Theatre Association,
Inc., appeared by Attorney Jonathan Lappen and
filed a demurrer to the First Amended Complaint
in People of the State of California ex rel William
Camil, City Attorney of the City of Duarte, Cali-
fornia vs. Buena Vista Cinema, being a building
structure containing approximately 3,440 square
feet (80' x 43'), located on real property commonly
known as 1345 East Huntington Drive, Duarte, Cal-
ifornia; Stephen E. Tillander, dba Buena Vista
Cinema; Diversified Realty Fund ‘’A", a Limited
Partnership; Title Insurance and Trust Company,
a California Corporation; Dunn Properties Corpor-
ation, a California Corporation; Jess Wilder;
Inland Empire Enterprises, Inc., a California
Corporation; Philip A. Fishman; North American
Theatre Association, Inc., John Does 1 to 10,
Civil Action 107347 on the grounds that the Court
has no jurisdiction of the subject of the cause
9/ A copy of the Second Petition for Writ of
Mandate in 2d Civ. 46061 is a part of the record
herein as Exhibit 2 to the Petition (Third) for
Writ of Mandate in 2d Civ. 46869 on file here».
of action pleaded and that the pleading did not
State facts sufficient to constitute a cause of
action, and noticed the same for a hearing in
Department 84 on April 17, 1975.
In their points and authorities the said Real
Parties in Interest argued that, inasmuch as the
California Supreme Court had granted a hearing
in Busch et. al. v. Projection Room Theatre on
March 10, 1975 (which date was seven days subse-
quent to the ruling of Superior Court Judge Max
Deutz upholding Civil Action 107347 on the sole
authority of Busch) under Rule 977 of the Cali-
fornia Rules of Court, Busch was no longer con-
trolliag authority and the general demurrer to
the first amended complaint must now be sustained
on the grounds that Harmer v. Tonylyn Productions,
Inc., 23 Cal. App.3d 941 was again the only ruling
precedent.
At the hearing on the aforementioned demurrers
before Los Angeles County Superior Court Judge
August Goebel in Department 84 on April 17, 1975,
petitioner argued that, at a minimum, the grant
of a hearing in the Busch case also effectively
removed any vestige that Harmer might have had
as a binding precedent and that, in such case,
the trial court must decide the matter anew under
the rationale expressed in Busch or that expressed
in Harmer. Against petitioner's objections, Los
-30-
Angeles County Superior Court Judge August Goebel
placed the demurrer off calendar to await the
Court's decision in Busch et al. v. Projection
Room Theater et al., supra.
On May 2, 1975, Petitioner herein as the
Plaintiff in People of the State of California
ex rel William Camil, City Attorney of the City
of Duarte, California v. Buena Vista Cinema, et
al., C.A. No. 107347, filed a Notice of Appeal
from Judge Deutz’ Order dated March 12, 1975 deny-
ing Plaintiff's Motion for a Preliminary Injunction
and sustaining the defendants’ demurrer without
leave to amend as to the claim based upon Duarte
City Ordinance No. 369. Om May 12, 1975, Peti-
tioner filed a Notice to Prepare the Clerk's
Transcript on such appeal.
Similarly, on May 2, 1975, the City of Duarte,
A Municipal Corporation, and James J. Coughlin,
as Plaintiffs and Appellants in City of Duarte,
A Municipal Corporation and James J. Coughlin v.
Buena Vista Cinema, et. al., C.A. No. 107771,
filed a Notice of Appeal from Judge Deutz’ order
of March 3, 1975 denying Plaintiffs’ Motion for
Preliminary Injunction and from the Order of Dis-
missal pursuant to section 581.3 of the Code of
Civil Procedure entered on March 3, 1975, following
Superior Court Judge Max F. Deutz’ sustaining
defendants’ demurrer, without leave to amend as
=~
to the claim based upon Civil Code Sections
3479 and 3480 and Penal Code Sections 11225
et. seq., and on May 12, 1975 filed a Notice
to Prepare the Clerk's Transcript in such
appeal.
>
=
D. The Bankruptcy Action
On April 3, 1975, Curtis B. Danning, acting
as Controller on behalf of United Professional
Planning, Inc., Debtor and general partner of
the limited partnership, Diversified Realty Fund
"A" (real party in interest herein) filed a com-
plaint in the United States District Court for
the Central District of California entitled
Curtis B. Danning, Controller, Plaintiff, v.
City of Duarte, a Municipal Corporation; James
J. Coughlin; People of the State of California,
ex rel William Camil, City Attorney of the City
of Duarte, California and James J. Clancy,
Defendants, In re United Professional Planning,
Inc. , a California Corporation, Debtor and In
re United Professional Enterprises, Inc., a
California corporation, Debtor, No. 72-8654-R
and No. 72-8653-R to enjoin the state court pro-
ceedings in C-107347 and C-107771. Hearings were
conducted in the Bankruptcy Court in that matter
on April 11, 1975 and May 8, 1975, in connec-
tion with Plaintiffs order to show cause why a
~~ ™
Preliminary Injunction should not be issued and
Defendants’ motion for dissolution of a temporary
restraining order therein granted, on the grounds
of lack of subject matter jurisdiction. On June
25, 1975, Bankruptcy Court Judge William J.
Lasarow filed a Memorandum and Decision and Order
in which he held that the Bankruptcy Court had no
jurisdiction in the matter since the record title
holder of the real estate involved, the limited
partnership, Diversified Realty Fund "A", (and
real party in interest herein), had never been
officially adjudged a bankrupt or a debtor in the
Bankruptcy Court. Judge Lasarow did exercise the
Bankruptcy Court's limited emergency jurisdiction
to restrain the defendants (Petitioner herein) for
a period of 30 days until and including July 25,
1975 from proceeding in the State Court against
the limited partnership, Diversified Realty Fund
"A'' (real party in interest herein) to permit the
filing of a simple bankruptcy or debtor's petition
as to the limited partnership, Diversified Realty
Fund "'A'', by an interested party. Judge Lasarow
held such filing to be a p.:~requisite to the
Court's jurisdiction and a hearing by the Bank-
ruptcy Court on the complaint to enjoin the state
court action. On July 2, 1975, Curtis B. Danning
and United Professional Planning, Inc., Debtor,
filed a notice of appeal to the District Court
—33-—
from the dismissal of Plaintiff's complaint to
enjoin the State Court Prosecution. Said
restraining order lapsed and later was reinstated
and continued in effect by Judge Lasarow until
Sept. 12, 1975, when another order was entered
ordering that the said restraining order be
dissolved as of 12:01 A.M. on Oct. 23, 1975. The
decision of the bankruptcy court on Sept. 12,
1975 required Diversified Realty Fund "'A"” to
appear in response to the State Court process
which had been served on them on December 5,
1974, 19/
E. Third Petition For Writ of Mandate in
2d Civ. 46869.
On August 1, 1975, Petitioner herein filed
its Third Petition for Writ of Mandate in the
California Supreme Court under L.A. file No.
30497. Petitioner also lodged with said peti-
tion the following exhibits, which were pleaded
by incorporation therein:
1. Exhibit 1 -- 8'' x 14" bound volume
(blue) containing papers filed in First Petition
for Writ of Mandate 2d Civ. 45526;
2. Exhibit 2 -- 8'' x 11" bound volume
10/ On Dec. 2, 1975, and against Petitioner's
objections, the demurrer of Diversified Realty
Fund "A" was alsc put off calendar.
. % A
genes
=94—
(green) containing papers filed in Second
Petition for Writ of Mandate 2d Civ. 46061; ad
3. Exhibit 3 -- Time-motion studies of 40 APPENDIX B
programs (85 films) exhibited at the Buena Vista
Cinema during the period July 15, 1974 - July 30, ji Minute Order of Superior Court
1975. e Judge Norman Dowis, filed on
August 2, 1976, denying Pe-
4. Exhibit 4 -- 8\'' x 11" bound volume titioner's motion for a
(green) containing original of deposition of preliminary injunction. ....... Bl
North American Theatre Association, Inc. taken |
April 30, 1975 and adjourned on that date; °
S. Exhibit 5 -- 8'' x 14" bound volume a
(blue) containing papers filed in U.S. District
Court Bankruptcy Action Danning v. City of Duarte fonnna’ owe
et al., No. 72-8654-R and 72-8653-R. e
On August 4, 1975, the petition was trans-
ferred to the Court of Appeal, Second District,
and on Aug. 12, 1975S the petition was denied. On -
Aug. 19, 1975S, petitioner filed a petition for
hearing in the California Supreme Court which, on
September 10, 1975 denied the same.
B-1
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Date: AUG 02 1976 9:00 AM DEPT. LA 85
Honorable: NORMAN R DOWDS, Judge} L SEABURY Deputy
Honorable: Judge Pro Clerk
NONE ay Sheriff] Y YAMADA Reporter
unsel for
CALIF PEOPLE-ET AL Plaintiff W CAMIL
BY: J. J. CLANCY
BUENA VISTA CINEMA- Counsel for
ETC-ET AL Defendant
Nature of Proceedings
MOTION FOR PRELIMINARY INJUNCTION
Petitioner's exhibits GGG through JJJJJ (Each a
time motion study), KKKKK (Declaration of James J.
Clancy), LLLLL (Declaration of Robert McGuire),
MMMMM (Declaration of Robert Plassmeyer), NNNNN
(Certified copy of Ordinance 398 City of Duarte),
00000 (Copy of Resolution No. 76-28), PPPPP (Time
motion study-program 89), and QQQ00 (Time motion
study-program 90) are received in evidence.
Petitioner's exhibits A through QO and SS through
FFF, previously received in evidence, are read and
considered by court’ for purpose of this applica-
tion for preliminary injunction.
Robert S. Perry is sworn and testifies for peti-
tioner.
Petitioner rests. Respondent has submitted.
Cause is argued.
Preliminary injunction is denied.
MINUTES ENTERED
Dept. LA 85
August 2, 1976
County Clerk
APPENDIX C
‘ Court of Appeal, Second Appellate
District, Division Two,
Order dated September 1, 1976,
denying Petition for a Writ
of Certiorari and/or Mandate
in e ex rel. Camil v.
ao ev”
C-1
C-1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION Two
PEOPLE OF THE STATE OF CALIFORNIA )
ex rel. WILLIAM CAMIL, City Attorney)
of the City of Duarte, California, )
vs. )
SUPERIOR COURT OF THE STATE OF )
CALIFORNIA FOR THE COUNTY OF LOS )
ANGELES, )
)
BUENA VISTA CINEMA, being a building)
structure containing approximately )
3,440 square feet (80' x 43'), lo- )
cated on real property commonly )
known as 1345 E. Huntington Drive, )
Duarte, California; STEPHEN E. )
TILLANDER,. dba Buena Vista Cinema; )
DIVERSIFIED REALTY FUND "A", a li- )
mited partnership; TITLE INSURANCE )
AND TRUST COMPANY, a California Cor-)
poration; DUNN PROPERTIES CORPORA- )
TION, a California Corporation; JOHN)
DOES 1 to 10, )
)
Real Parties in Interest.)
THE COURT:
2d CIV 49376
ORDER
Court of
Appeal-
Second Dist.
FILED
SEP 1 1976
Clay Robbins,
Jr., Clerk
The petition for a writ of certiorari
or mandate filed August 24, 1976, has
been read
and considered and is denied. Compton, J. was
of the opinion that the petition for an alter-
native writ should have been granted.
D1
AFTER JUDGMENT BY THE COURT OF APPEay,
2nd District, Division 2, Civil No. 45376
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
IN BANK
PEOPLE ex rel CAMIL, EIC., PETITIONER
Vv.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT
BUENA VISTA CINEMA, ETC., ET AL., REAL PARTIks In
INTEREST
SUPREME COURT
FILED
Petition for hearing DENIED. SEP 29, 1976
G. E. BISHEL, Clerk
Deputy
/s/ WRIGHT
Chief Justice
I, G. ‘E. BISHEL, Clerk of the Supreme
Court of the State of California, do
hereby certify that the preceding is
a true copy of an order of this Court,
as shown by the records of my office.
Witness my hand and the seal of
this Court this 23rd day of December,
A.D. 1976.
Clerk
/s/ R. JOHNSON
Deputy Clerk
By
eee
eS -@ @¢€ 88 © 8 @ E-1l
Pe ee E-1
E-1
AMENDMENT I
: Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the government for a redress of grievances.
AMENDMENT V
No person shall be held to answer for a capi-
tal, or otherwise infamous crime, unless on a pre-
sentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in
the militia, when in actual service in time of war
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without
due process of law; nor shall private property be
taken for public use without just compensation.
AMENDMENT X
The powers not delegated to the United
States by the Constitution, nor prohibited by it
to the States, are reserved to the States re-
spectively, or to the people.
tion 3ll(a) defining
"obscene matter" .......
F-1 - F-2
F-1l
CALIFORNIA PENAL CODE
Chapter 7.5
§311. (Definitions)
As used in this chapter:
(a) “Obscene matter" means matter, taken as a
‘whole, the predominant appeal of which to the
average person, applying contemporary standards,
is to prurient interest, i.e., a shameful or
morbid interest in nudity, sex, or excretion;
and is matter which taken as a whole goes sub-
stantially beyond customary limits of candor in
description or representation of such matters;
and is matter which taken as a whole is utterly:
without redeeming social importance.
(1) The predominant appeal to prurient
interest of the matter is judged with reference
to average adults unless it appears from the
nature of the matter or the circumstances of its
dissemination, distribution or exhibition, that
it is designed for clearly defined deviant sexual
groups, in which case the predominant appeal of
the matter shall be judged with reference to its
intended recipient group.
(2) In prosecutions under this chapter,
where circumstances of production, presentation,
sale, dissemination, distribution, or publicity
indicate that matter is being commercially ex-
ploited by the defendant for the sake of its
F-2
prurient appeal, such evidence is probative
with respect to the nature of the matter and e
can justify the conclusion that the matter is
utterly without redeeming social importance. APPENDIX G
© California Civil Code, Sections
. 3479 and 3480, containing
the provisions defining
what constitutes a public
@ , |
©
e
e ~
@
G1
CALIFORNIA CIVIL CODE
§3479. (Nuisance, what)
Anything which is injurious to health, or is
indecent or offensive to the senses, or an
obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of
life or property, or unlawfully obstructs the
free passage or use, in the customary manner,
of any navigable lake, or river, bay, stream,
canal, or basin, or any public park, square,
street, or highway is a nuisance.
§3480. (Public nuisance)
A public nuisance is one which affects at the
same time an entire community or neighborhood,
or any considerable number of persons, although
the extent of the annoyance or damage inflicted
upon individuals may be unequal.
California Code of Civil Procedure,
Section 731, authorizing the
City Attorney to prosecute
civil public nuisance abatement
actions when directed by the
ee a eee
H-]
CALIFORNIA CODE OF CIVIL PROCEDURE
§731. (Right to bring action to enjoin or
abate nuisance, and to recover damages: Abate-
ment of public nuisance)
An action may be brought by any person whose
. property is injuriously affected, or whose
personal enjoyment is lessened by a nuisance, as
the same is defined in section thirty-four hun-
dred and seventy-nine of the Civil Code, and by
the judgment in such action the nuisance may be
enjoined or abated as well as damages recovered
therefor. A civil action may be brought in the
name of the people of the State of California
to abate a public nuisance, as the same is
defined in section thirty-four hundred and
eighty of the Civil Code, by the district attor-
ney of any county in which such nuisance exists,
or by the city attorney of any town or city in
which such nuisance exists, and each of said
officers shall have concurrent right to bring
such action for a public nuisance existing
within a town or city, and such district attorney,
or city attorney, of any county or city in which
such nuisance exists must bring such action when-
ever directed by the board of supervisors of
such county or whenever directed by the legisla-
tive authority of such town or city.
APPENDIX I
California Code of Civil Procedure,
Section 527, containing the
provisions relating to the
granting of preliminary injunc-
tions . . 7 . . 7 . . . . . >.
Ie] - I-3
I-l
CALIFORNIA CODE OF CIVIL PROCEDURE
§527. (Time of granting injunction: Service:
Preliminary injunction, notice, readiness for
hearing, continuance, counter-affidavits and
precedence)
An injunction may be granted at any time before
judgment upon a verified complaint, or upon
affidavits if the complaint in the one case, or
the affidavits in the other, show satisfactorily
that sufficient grounds exist therefor. A copy
of the complaint or of the affidavits, upon
which the injunction was granted, mst, if not
previously served, be served therewith.
No preliminary injunction shall be granted with-
out notice to the opposite party; nor shall any
temporary restraining order be granted without
notice to the opposite party, unless it shall
appear from facts shown by affidavit or by the
verified complaint that great or irreparable
injury would result to the applicant before the
matter can be heard on notice. In case a tempo-
rary restraining order shall be granted without
notice, in the contingency above specified, the
matter shall be made returnable on an order re-
quiring cause to be shown why the injunction
should not be granted, on the earliest day that
the business of the court will admit of, but not
later than 15 days or, if good cause appears to
the court, 20 days from the date of such order.
When the matter first comes up for hearing the
party who obtained the temporary restraining or-
der must be ready to proceed and must have
served upon the opposite party at least two days
prior to such hearing, a copy of the complaint
and of all afficavits to be used in such applica-
tion and a copy of his points and authorities in
support of such application; if he be not ready,
or if he shall fail to serve a copy of his com
plaint, affidavits and points and authorities,
as herein required, the court shall dissolve the
temporary restraining order. The defendant,
however, shall be entitled, as of course, to one
continuance for a reasonable period, if he de-
sire it, to enable him to meet the application
for the preliminary injunction. The defendant
may, in response to such order to show Cause,
present affidavits relating to the granting of
the preliminary injunction, and if such affida-
vits are served on the applicant at least two
days prior to the hearing, the applicant shall
not be entitled to any continuance on account
thereof. On the day upon which such order is
made returnable, such hearing shall take prece-
dence of all other matters on the calendar of
such day, except older matters of the same char-
acter, and matters to which special precedence
may be given by law. When the cause is at issue,
I-3
it shall be set for trial at the earliest possi-
ble date and shall take precedence of all other
cases, except older matters of the same character,
and matters to which special precedence may be
given by law.
APPENDIX J
-A photo-reduced copy of Ordinance
No. 398, passed and adopted
July 13, 1976. A true and
correct copy of Ordinance
No. 398 appears at Exhibit
"2" to the "Petition for
Writ of Certiorari And/Or,
In The Alternative, Mandate,
With Supporting Memorandum
of Points and Authorities",
on file with this Court as
a part of the record
J-1 - J-6
J-1
ORDINANCE NO. __ 398 :
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF DUARTE DECLARING THE COMMERCIAL EXPLOITATION
OF LEWD MOTION PICTURE FILMS TO BE CONTRARY TO
PUBLIC HEALTH, SAFETY AND GENERAL WELFARE AND A
PUBLIC NUISANCE; AND DECLARING ANY PLACE DISPLAY-
ING OR EXHIBITING SUCH LEWD MOTION PICTURE FILMS
A PUBLIC NUISANCE; MAKING ALL LEWD MATTER POS-
SESSED IN SUCH PLACES A PUBLIC NUISANCE PER SE;
AND PROVIDING FOR NOTICE AND PROCEEDINGS TO
ABATE THE SAME AND FOR OTHER RELIEF.
THE CITY COUNCIL OF THE CITY OF DUARTE DOES ORDAIN AS
FOLLOWS :
Section l. PURPOSE AND EFFECT.
The City Council finds that the crass commercial
exploitation of explicit sexual conduct through the public exhi-
bition of lewd films constitutes a debasement and distortion of
@ sensitive key relationship of human existence, central to
family life, community welfare and the development of human per-
sonality; is indecent and offensive to the senses and interferes
with the comfortable enjoyment of life and property, in that such
interferes with the interest of the public in the quality of life
and total community environment, the tone of commerce in the City,
property values, and the public safety; and that the continued
operation of such activities is detrimental to the best health,
safety, convenience, good morals and general welfare of the City
of Duarte, and of the residents, citizens, inhabitants and busi-
nesses thereof. Pursuant to §§ 38771, 38773, and 38773.5 of the
Government Code, § 731 of the Code of Civil Procedure, and
SS 3479, 3480, 3491 and 3494 of the Civil Code, the City Council
hereby declares such activities to be a public nuisance, and herein
establishes procedures for the abatement thereof. This Ordinance
shall apply to existing establishments which are presently engaged
in the type of activity herein declared to be a public nuisance.
Section 2. DEFINITIONS.
(A) “Lewd Film" means any motion picture film:
(1) which the average person, applying
contemporary community standards, would find, when con-
as a whole, appeals to the orurient interest; and
(2) which depicts or describes patently
offensive representations or descriptions of:
(a) ultimate sexual acts, normal
or perverted, actual or simulated; or
(b) masturbation, excretory func-
tions, or lewd exhibition of the genitals or genital
area. ,
Bothing herein contained is intended to include or proscribe any
film which, when considered as a whole, and in the context in
which it is used, possesses serious literary, artistic, political
er scientific value.
(B) “Place” includes, but is not limited to. any
building, structure, or place, or any separate part or por-
tion thereof, whether permanent or not, or the ground
itself. |. °°
J-2
(C) “Motion picture film" shall include any:
. (1) film or plate negative; —"
(2) fila or plate positives
(3) film designed ‘to be projectéd on a -
screen for exhibition;
~
(4) films, glass slides or transparencies,
either in negative or positive form designed for exhibition
by ae | on a screen; and
(5) videotape or any other medium used to
-@lectronically reproduce images on a screen.
(D) - “Person” means any individual, partnership,
firn, ‘ eauastetion. corporation, or other legal entity.
{(E) “Knowledge” means having knowledge of the
contents and character of the paseetey offensive sexual conduct
which appears in such lewd film
Section 3. LEWD FILMS AND THEATRES EXHIBITING THE SAME
DECLARED A PUBLIC NUISANCE; ABATEMENT THEREOF.
' (A) Any and every place in the City of Duarte
where lewd films are publicly exhibited as a reqular course of
business, or possessed for the purpose of such exhibition; and
any and every place in the City of Duarte where a lewd film is
publicly and repeatedly exhibited, or possessed for the purpose
of such exhibitions, is a public nuisance.
(B) Any and every lewd film which is publicly
exhibited or possessed for such purpose at a place which isa .
public nuisance under Section 3(A) above, is a public nuisance
per se.
Section 4. KNOWLEDGE OF NUISANCE PRESUMED FROM SERVICE
; OF COPY OF RESOLUTION; RESPONSIBILITY OF
PARTIES THEREFOR: ABATEMENT OF SUCH NUISANCE.
(A) Upon receiving notice through service of a
certified copy of this Ordinance and of a certified copy of the
Resolution provided for herein, any and every person who shall
own, legally or equitably, lease, maintain, manage, conduct, or
operate a place in the City of Duarte which is declared to be a
public nuisance as set forth and stated in Subsection (A) of this
Section 3 is deemed to be a person who has knowledge of such nui-
sance for the purpose of this Ordinance and is, thereafter, respon-
sible for its maintenance, and shall be liable therefor.
(B) The places and subject matter declared to be
public nuisances under Section 3, shall be abated pursuant to
Government Code §§ 38773 and 38773.5, Code of Civil Procedure
8 731, and Civil Code §8 3491 and 3494, as provided for herein.
Section 5. ACTION TO BE TAKEN BY CITY COUNCIL.
Upon a specific finding that a public nuisance, as
defined in Section 3 of this Ordinance, exists in the City of Duarte,
the City Council, in applying the provisions of this Ordinance to
such nuisance, shall provide for the following by Resolution:
(A) Declare the fact that such nuisance
exists;
(B) Set forth the description or legal
the —, Council declaration of nuisance is based; |
J-3
description and street address ‘of the real property which
an penne the nuisance;
(C) Set forth a statement of facts upon which
=
(D) order the revocation of all‘ licenses and
oomian which have been issued as a part of the operation of
such business, subject tc-confirmation-by the Court in the
judicial proceedings required herein. Criminal proceedings
for transacting- business without a license at such address
shall not be filed until the order of license revocation by
the City Council has been confirmed by judicial ender;
-
(z) Order all persons named in ‘Section 4(A) -
hereot to lid abate such public nuisances immediately,
by terminating the exhibitions of such lewd film or films, :
er causing the same to be terminated, and voluntarily sur-
rendering possession of the same to the Court having juris-..
aiction of the legal proceedings brought by the City Attorney
pursuant to the provisions of this Ordinance, and notifying
the City Clerk and City Council of cmgeeeas> * chesertee v..
sworn abSidavies ah .
~ (FP) order the City Attorney to proceed as
directed in Queian 6 of this Ordinance and do all things
necessary to abate such public nuisance through judicial pro-
ceedings and to conclude such proceedings as ee as
is een ‘ender the law;
.(G) Inform ana give notice to persons named %
in Section 4(a) that:
»
‘ ie (1) the City Council has determined that
<a ‘public nuisance presently exists at such place and .
address, and has revoked the licenses and permits at
‘that place, subject~-to-Court confirmation, and that, un-
der Section 4(A) of said Ordinance, they are deemed to
‘have knowledge thereof and are responsible therefor;
“(2) the City Council has ordered the
city Attorney, as provided -for under Section 6 hereof,
‘to commence legal proceedings naming such persons as
defendants in a civil action to abate the same judicially
under Civil Code § 3494 and Code of Civil Procedure-§ 731,
and to seek recovery in said action of the costs of abate-
- Bent, including investigative costs, Court costs, at--
torney's Sees, and other expenses;
“. = = (3) ‘-all “lewd motion picture films being
used in conducting and maintaining such public nuisance
° are considered to be contsebens and whe peepee of for-
feiture; and .
(4) from and after service on the place
or its manager or acting manager, or person then in
- a of such place, of a certified copy of this Ordi-
mance and a certified copy of such Resolution, any and .
all moneys paid-as admission price to or for the exhibi-
tion or exhibitions of such lewd motion picture films are
-considered’to_ be a public nuisance, as personal property ~
used-in conducting and maintaining such nuisance and,. . ~
- that a forfeiture of the same will be requested in the
-. Judicial -proceedings soquises herein. . ..-,..- es hee. es
a7 «
1 . jemtine
ne 3 Pew Order that.a certified copy of ‘said “Reso-
‘lution’ ‘and<a certified copy of-this Ordinance be delivered .
| BEST COPY AVAILABLE
J-4
forthwith in any manner normally used to effectuate personal
service of process as directed in Code of Civil Procedure
§§ 415.10 through 416.90, to all persons of record having any
legal or equitable interest in the real property, and to the
regular or acting manager or persons in charge = the oon
therein declared a public nuisance. ’
*
Section 6. | ‘ACTION TO BE TAKEN BY CITY ATTORNEY.
Upon a specific finding by Resolution of the City
Council of the fact that a public nuisance exists at a particular
location, the City Attorney shall:
(A) Forthwith, but not later than four work-
ing days after passage of said Resolution, commence legal
- proceedings under Civil Code 55 3491 and 3494 and Code of
Civil Procedure § 731, by the filing of a civil action seek-
ing the a relief:
(1) An Order that the motion picture
or pictures named by the City Council are lewd, as de-
fined herein;
(2) An Order that the place named by
the City Council where the film or films are being ex-
hibited is a public nuisance and that the action taken
by the City Council to revoke the licenses issued to
that place of business was lawful;
(3) An injunction enjoining and restrain-
ing all persons maintaining said nuisance from exhibit-
ing in public the named lewd films at any time in the
future in the City of Duarte;
(4) -Anm Order that all positive prints
of the named lewd films be forfeited as contraband;
(S) An accounting of all moneys paid as
admission price to or for the exhibition or exhibitions
of such lewd motion picture films, from and after the
time the persons maintaining said nuisance receive a
copy of the Resolution of the City Council that the pub-
lic nuisance exists, and a judgment that such moneys
are a public nuisance;
(6) An Order that all admission price
‘moneys or valuable consideration received and enumerated
'* dim the Court ordered accounting be forfeited to the
general fund of the City of Duarte as contraband, os as
property belonging to the City of Duarte;
(7) Judgment for the City of Duarte for
all costs expended in abating the public nuisance, in-
Cluding investigative costs, Court costs, reasonable
attorney's fees, and such other expenses as are provided
for herein; and
(8) All other relief as the Court may
deem proper.
(B) - Fide a notice of the pendency of the
action in the office of the County Recorder of the County of
Les Angeles, pursuant to Code of Civil Procedure § 409, giving
the names of the parties, the object of the action, and a
description of the property thereby affected.
J-5
Section 7. § SEVERABILITY CLAUSE.
If any Court shall determine that any word,, clause,
phrase, sentence, paragraph, or subsection of this Ordinance is
unconstitutional as worded, the Court shall first attempt to con-
strue or interpret such unconstitutional provision so/as to enable
the same to be constitutional as so narrowed or construed. If the
Court cannot so limit or construe such word or provision narrowly
so as to render same constitutional, it shall strike-or modify only
the minimum number of words, phrases, clauses, sentences, or para-
graphs as will be absolutely necessary to render the remainder con-
stitutional. In no case shall a subordinate clause or phrase or
word render its attached major section or provision unconstitutional,
but instead shall be severed therefrom entirely, unless such sever-
ance renders the remainder wholly meaningless or unconstitutional.
Section 8. SUPERSEDES PRIOR ORDINANCE.
This Ordinance supersedes Ordinance No. 369, adopted
on November 12, 1974. However, the adoption of this Ordinance and
the repeal of said Ordinance No. 369 shall not in any manner affect
the prosecution for violations of Ordinance No. 369, which viola-
tions were committed prior to the effective date of this Ordinance.
Section 9. URGENCY CLAUSE.
Pursuant to the provisions of Subsection (b) of
6 36937 of the Government Code of the State of California, this
Ordinance is for the immediate preservation of the public peace,
health, and safety and shall take effect immediately. The facts
constituting the urgency are as follows:
The purpose of this Ordinance, as is evident from
its content, is to enable the City of Duarte to
abate the type of public nuisance being committed
within the City. The City Council deems the show-
ing of lewd films, as defined herein, as being a
public nuisance contrary to the public peace, health
and safety of the City and its residents. This
Ordinance makes certain changes in previously adopted
and effective Ordinance No. 369 required by the de-
cision of the California Court of Appeal in People
ex rel. Camil v. Buena Vista Cinema, 129 Cal.Rptr.
" e City Council deems it necessary for the
. immediate preservation of the public peace, health
and safety that immediate action be taken to abate
said public nuisance pursuant to the terms of this
Ordinance.
PASSED and ADOPTED this 13th day of July - 1976,
the following called vote:
aves: Councilmen: Coughlin, Anderson, Montgomery, Falkenborg
NOES: Councilmen: Watson
ABSENT: Councilmen: ‘one
/s/ Cartyle W. Falkenborg
MAYOR
J-6
APPENDIX K
I, J. KENNETH CARESIO, City Clark of the City of Ovarte, County of Los Angeles,
State of California, hereby certify that the foregoing Ordinance —_rig,_398 A photo-reduced copy of Resolution
— ae tens to Oy ens ames Gy deems : Sg gg {Sa
_—_ held on the 120" dey of __iuly 1928, cement Gul of Resolution No.
by the following vote 76-28 appears at Exhibit "2"
Ave. Comaimen SOUGhIin, Anderson, Montaomery, Falkenborg ; to the "Petition for Writ of
Certiorari And/Or, In The
— Covnefiomen a5 500_ ad Alternative, Mandate, With
ABSENT, ° § —- Counciimen_ None Supporting Memorandum of
Points and Authorities", on
file with this Court as a
—__ part of the record herein. . . K-l - K-14
EE 6
7 ~
K-1
On . 76- ‘
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF DUARTE DETERMINING THAT THE REAL PROPERTY
AND ACTIVITY KNOWN AS THE “BUENA VISTA CINEMA?
LOCATED AT 1345 EAST HUNTINGTON DRIVE, DUARTE,
CALIFORNIA, 91010, IS IN VIOLATION OF SECTION
3 OF ORDINANCE NO. 398 OF THE CITY OF DUARTE;
DECLARING SUCH ACTIVITY TO BE A PUBLIC NUISANCE,
REVOKING ALL LICENSES AND PERMITS, AND ORDERING
ABATEMENT; AND ORDERING THE CITY ATTORNEY TO
TAKE ALL STIPS NECESSARY TO COMPLY WITH SECTION
6 OF ORDINANCE NO. 398 .
THE CITY COUNCIL OF THE CITY OF DUARTE DOES DECLARE AND
RESOLVE AS FOLLOWS:
Section 1. Pursuant to Section 38771 of the Government Code
which authorizes the City Legislative Body to declare by Ordinance
what constitutes a nuisance, the City Council of Duarte did, on
the 10th day of September, 1974, adopt Ordinance No. 367, which
became effective on the 12th day of October, 1974, and did super-
sede the same with Ordinance No. 369, adopted as an urgency Ordi-
mance on the 12th day of November, 1974, and did supersede Ordi-
nance No. 369 with Ordinance No. 398 , adopted as an urgency Ordi-
mance on the l3th day of July, 1976, to become effective immedi-
ately upon adoption. Said Ordinance declares:
(A) Any and every place in the City of Duarte
where lewd films are publicly exhibited as a regular
course of business, or possessed for the purpose of
such exhibition; and any and every place in the City
of Duarte where a lewd film is publicly and repeatedly
exhibited, or possessed for the purpose of such exhi-
bition, to be a public nuisance.
(B) Any and every lewd film which is publicly
exhibited or possessed for such purpose at a place
which is a public nuisance under (A) above, to be a
public nuisance per se.
(C) From and after service on the place, or its
manager, or acting manager, or person then in charge
K-2 K-3
of such place, of a certified copy of Ordinance the 6S guogeams and the aggueninate playing épte of
each is set forth in Enclosure A to this Resolution.
(B) Photographic time-motion studies of the 72
motion picture films exhibited at the “Buena Vista
Cinema” during the eight-month period from Nov. 6, 1975
through July 5, 1976, being programs 54 through 88 de-
scribed in Enclosure A, have been prepared and have
No. 398 _, and a certified copy of the Resolution
authorized by said Ordinance, all moneys paid there-
after as admission price to such exhibitions are also
a public nuisance, as personal property used in con-
ducting and maintaining a declared public nuisance.
,
(D) Upon receiving notice through service of a
certified copy of Ordinance No. 398 and of a certified SGER CLSSS COED Che City CHURESS, GS the GEtETD oo
the City Council have examined the photographic content
in each of such time-motion studies.
Section 3. Pursuant to the provisions of ovéinence No. 398 _,
and based upon the evidentiary facts referred to in Section 2
“ eopy of the Resolution authorized by said Ordinance,
any and every person who shall own, legally or equit-
ably, lease, maintain, manage, conduct, or operate a
place in the City of Duarte where lewd films are pub-
Licly exhibited, or possessed for the purpose of such above, the City Council of Duarte makes the following findings of
exhibition in the reqular course of business, or where fact concerning the character and nature of the aforementioned
a single lewd film is publicly and repeatedly exhibited, motion picture films which have been, and are being, exhibited at
the “Buena Vista Cinema":
(A) Each of the aforementioned 72 motion picture
films which have been exhibited at the "Buena Vista
or possessed for the purpose of such exhibition, is
deemed to be a person who has knowledge of such nuisance
for purposes of said Ordinance and this Resolution and
is, thereafter, responsible for its maintenance, and . 28 6 past Cf proguans 5¢ thesugh OS, 16 6 iene
ens tn Shade aneten. film as defined in Section 2(A) of Ordinance No. 398 ,
Section 2. Pursuant to the provisions of Ordinance No. 398, ia het (2) the evesege pessen, applying contenpesesy
the City Council of Duarte makes the following findings of fact community standards, would find thet, when considered as
concerning the identity of the motion picture films which have @ whole, said film appeals to the prurient interest, and
, and are being exhibited at the “Buena Vista Ci *, (2) said film depicts and describes patently offensive
(A) Upon the instructions of the Duarte City At- representations and descriptions of ultimate sexual acts,
en , @ continusus surveillance ef the Silas beiae and (3) said film possesses no serious literary, artistic,
hibited at the Buena Vista Ci has 1 eainesines political, or scientific value. -The patently offensive
which dllance si that, during the year representations and descriptions which are referred to
are depicted on the individual photographs of the 72
time-motion studies which have been examined by the City
Council, and such studies are incorporated herein by
period from July 15, 1974 through July 13, 1976, approx-
imately 88 programs have been exhibited at said theater
with each program containing two or more motion picture
films. The titles of the films exhibited at each of reference.
K-4
Section 4. All licenses and permits which have been issued
as a part of the operation of the “Buena Vista Cinema” are hereby
revoked, subject to confirmation by the Court, in judicial pro-
ceedings required herein. Criminal proceedings for transacting
business without a license at the “Buena Vista Cinema” shall not
be filed until the order of license revocation by the City Council
has been confirmed by judicial order.
Section S$. Pursuant to the provisions of Ordinance No, 39% ,
and based upon evidentiary facts contained in the business records
of the City of Duarte and already on file with the City Council in
other matters pertaining to the “Buena Vista Cinema", which are
incorporated herein by reference as though set forth herein in
full, the City Council of Duarte makes the following findings of
fact with respect to the place commonly known as the “Buena Vista
Cinema":
(A) There is presently located in the City of
Duarte a motion picture business commonly known as the
“Buena Vista Cinema” doing business upon real property
known as 1345 East Huntington Drive, Duarte, County of
Los Angeles, California. Such real property is further
described on the preliminary plot plan dated April 8,
1968, of the “Tentative Lot Split Map” for Lot Split
No. 60, covering a portion of the West 1/2 of Lot 12,
Section 30, Township 1, North, Range 10 West, Rancho
Azusa de Duarte, M R 6-80 on file in the Planning Depart-
ment of the City of Duarte and is shown thereon 4s a
building area, approximately 80 feet x 43 feet, con-
taining approximately 3440 square feet, located near
the easterly boundary on said map and approximately 60
feet north of Huntington Drive.
(B) The motion picture business commonly known as
the “Buena Vista Cinema” located at 1345 East Huntington
Drive, Duarte, California, is a public nuisance, being
@ place where lewd films are publicly exhibited, and
possessed for the purpose of such exhibition, as a regu-
lar course of business.
(C) JOHN DOE 1 is the Lessee of the real property
commonly known as the “Buena Vista Cinema.”
(D) Diversified Realty Fund “A", a limited part-
nership of 2009 East Edinger Avenue, Santa Ana, Califor-
nia, is the owner of the real property commonly known as
the “Buena Vista Cinema", 1345 East Huntington Drive,
Duarte, California, as shown on the deed recorded as
Gocument No. 689 om April 5, 1972.
; (EZ) Dunn Properties Corp. of 2009 East Edinger
Avenue, Santa Ana, California, is the owner of a security
interest in such real property, as shown on the trust
Geed recorded as document No. 690 on April 5, 1972.
(?) JOHN DOE 2 is the operator, JOHN DOE 3 is the
manager, and JOHN DOE 4 is the acting manager or person
in charge of the establishment comm > \y known as the
“Buena Vista Cinema", 1345 East Huntington Drive, Duarte,
California.
Section 6. Diversified Realty Fund "A", a limited partner-
ship, Dunn Properties Corp., and JOHN DOES 1 through 4, and all
other persons of record, having legal or equitable title in the
real property known as 1345 East Huntington Drive, Duarte, Cali-
fornia, on which is located the motion picture business commonly
known as the “Buena Vista Cinema“ are:
(A) hereby informed and given notice that (1) the
City Council has determined that a public esisence exists
om the property located at 1345 East Suntington Drive,
Duarte, California; namely, the “Buena Vista Cinema",
and that, under Section 4(A) of said Ordinance, they
are responsible therefor upon receiving notice through
service of a certified copy of the Ordinance and a
certified copy of this Resolution, and (2) any and all
licenses and permits heretofore issued for the premises
known as 1345 East Huntington Drive are hereby revoked
under the provision set forth in Section 5(D) of Ordi-
mance No. 398 ; and
(B) hereby ordered, under Government Code Sec-
tion 38773 and Section S(E) of Ordinance No. 398 , to
summarily abate the abovementioned public nuisances
immediately, by terminating, er causing to be terminated,
the exhibition of the above described lewd films and to
voluntarily surrender possession of the same to the
Court having jurisdiction of the legal proceedings which
the City Attorney has been ordered to institute under
Section 6 of Ordinance No. 398 . Each of the above-
mentioned persons shall notify the City Council of Duarte
by sworn affidavit of his compliance with this Order of
Summary Abatement, as required by Section 5(E) of said
Ordinance.
Section 7. Diversified Pund Realty "A", a limited partner-
ship, Dunn Properties Corp., and JOHN DOES 1 through 4, and all
other persons of record, having legal or equitable title in the
real property known as 1345 East Huntington Drive, Duarte, Cali-
fornia, on which is located the motion picture business commonly
known as the “Buena Vista Cinema", are hereby informed and giver
notice that:
(A) under Sections 5(F) and 6 of said Ordinance,
the City Attorney has been ordered to institute legal
proceedings under Civil Code Sections 3491 and 3494,
and Civil Procedure Code Section 731, naming them as
defendants in an action to abate the same, and to seek
restitution for the costs of abatement, including:
(1) investigative costs;
(2) Court costs;
(3) reasonable attorney's fees arising out
of preparations for and trial of the cause, and
appeals therefrom; and
(4) printing costs of trial and appellate
brief, and all other papers filed in such proceed-
ings.
(B) All positive prints of the above described 70
lewd films are considered to be contraband and the sub-
ject of forfeiture as provided for in Section 5(G)3 of
(C) From and after service on the place or its
manager, or acting manager, or person then in charge of —
such place, of a certified copy of Ordinance No.398_,
and a certified copy of this Resolution, any and all
moneys paid thereafter as admission price to the exhibi-
tion of such iewd films are considered to be a public
nuisance as personal property used in conducting and
maintaining such nuisances, and that a forfeiture of the
same will be requested in the judicial proceedings re-
quired by Ordinance No. 398. ,
Section 8.
(A) The City Attorney is hereby ordered to provide
for delivery of a certified copy of this Resolution and
@ certified copy of Ordinance No: 39 in any manner
normally used to effectuate personal service of process
as directed in Code of Civil Procedure, Sections 415.10
through 416.90 to Diversified Realty Fund “A*, a limited.
partnership, Dunn Properties Corp., and John Does 1
through 4, and to all other persons of record having
K-8
any legal or equitable interest in the real property,
known as 1345 East Huntington Drive, Duarte, California,
on which is located the motion picture business commonly
known as the “Buena Vista Cinema"; and to the manager
or acting manager or persons in charge of said establish-
ment. |
(B) The City Attorney is hereby ordered to proceed
as directed in Section 6 of Ordinance No. 398 _, and to
take all steps and do all things necessary to abate such
nuisances and obtain the relief designated therein, through
the judicial proceedings specified therein, including
but not limited to seeking such recovery in the pending
lawsuit entitled People ex rel. Camil, City Attorney of
Duarte, v. Buena Vista Cinema, et al.
PASSED and ADOPTED this 13th, day of July , 1976.
/s/ Carlyle W. Falkenborg
MAYOR
Carlyle W. Falkenborg
—- -- — —
J. Kenneth Caresio
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF DUARTE )
I, J. KENNETH CARESIO, CITY CLERK OF THE CITY OF OUARTE, County of Los saasteh,
State of California, hereby certify that the foreaoing Resolution No. 76-28 was |
regularly adopted by the City Council! of said City of Ouarte at a regular meeting
of said Council held on the 13th day of July,.1976 by the following called vote:)
AYES: Councilmen: Coughlin, Montaomery, Falkenborg, Anderson,
NOES: Councilman: Watson
ABSENT: Councilmen: Ndne
14
16
K-9
Devil in Miss Jones
Deep Throat
Chambermaids
Souzy's House
The Hardy Girls
Untitled Companion Feature
Blue Balloon
The Medallion
Easy Pickup
Badge 69
Armed Services
Hungry Hypnotist
Touch Me
69 Sunset Strip
Revolving Teens
Tycoon's Daughter
Hungry Girls
Untitled Companion Feature
Easy Money
My Husband the Producer
My Husband the Producer
5S Minutes - coming attractions
After School Exams
Gina, the Foxy Chick
The Cheaters
Busy Bodies
Johnny Wadd
Johnny Wadd in The Bionde in Black
Lace
Plesh of the Lotus
Tropic of Passion
Previews
Love Witch
Certified Mail
Untitled feature
Pistclero
Enclosure A-1l
1631
1633
1759
1387
DATE
7/15/74
8/01/74
8/23/74
9/06/74
9/20/74
10/02/74
10/09/74
10/10/74
10/20/74
10/31/74
11/06/74
11/14/74
12/03/74
12/12/74
1/07/75
1/09/75
1/20/75
21
22
23
24
27
30
31
K-10
- FEATURE
Hawaii Sex 0
Wanda's Education
Wet Lips
Untitled feature
If Mother Could See Me Now
Untitled (Liars)
Untitled
Ontitled
Mr. Peepers & the Vacuum Sweeper
Teaching Uncle Henry
The Search
Untitled
Who Killed Cock Robin
Jeanie's Magic Box
Untitled
DOr. Mark From Denmark
The Oldest Profession
The Girl From AUNTIE (Jane Bond)
Twilight Cowboy
Untitled
Untitled
The Hit
Ontitled
The Medical Plaza
Cows, Horses, Goats & Things
Gratitude
Blackmail for Daddy
Previews of “A Hard Bargain”
Ski Ball
Untitled (Revolution Theme)
"A Hard Bargain”
"Lollypop for Judy”
Untitled
The Groupies
Its All In The Mind
Broadside
Enclosure A-2
1393
1050
1796
1722
1245
1760
1595
1481
1686
1689
1290
DATE
1/23/75
2/06/75
2/20/75
3/16/75
3/17/75
3/21/75
3/27/75
4/04/75
4/10/75
4/17/75
4/24/75
5/01/75
5/08/75
5/15/75
5/22/75
47
K-11
QEATURE
Genies Magic Box
How To Do It
Untitled
The Housewarming
Untitled
Teen Sorority Girls
Nine Loops Three Reels
Untitled
Motel Love
Untitled
Kowloon Connection
Ontitled
Zl Hombre (726) only
Kowloon Connection
Ontitled (The Inheritance)
Episodes of an Oriental Kitten
Untitled
Big Bad Beulah
Natties Pleasure Palace
Untitled
Untitled
Sex Delivery
Traveling
Ontitled
Gloria Comes Home
Untitled “Sex on a Waterbed”
The Cure
Tail of a Bearded Clam
Piece of the Action
Untitled (The Search)
Illegal Entry
"Once in a Lifetime”
"Ski Bunnies”
1533
1514
1657
1685
“The Married Woman” and coming attrac-
tions for “The Most Valuable Pussy”
"Getting It On” and coming attractions
for “The Devils Due.”
Enclosure A-3
DATE
5/29/75
6/05/75
6/12/75
6/19/75
6/28/75
7/03/75
7/10/75
7/17/75
7/26/75
8/01/75
8/20/75
8/22/75
8/30/75
9/07/75
9/13/75
9/20/75
9/28/75
1)
2)
1)
2)
1)
2)
- 1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
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2)
1)
2)
1)
2)
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2)
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2)
1)
2)
1)
2)
1)
2)
K-12
FEATURE
Most Valuable Pussy
Sexual Awareness
The Devils Due
Possessed
My Sister My Love
The Pugitive
Black Neighbors
Little Girl Blue
Birthday Babe (Untitled)
Sex Is My Bag
Untitled (Honeymoon Suite)
All in the Sex Family
Black Girls
The Passion Palace
"For the Love of Money”
Untitled
The Agony of Lace, Lash & Love
My Husband the Producer
The Contest
Hallucinations
AWOL
Double Exposure
5 Hour festival of
Eight Short features
Lacy Bodine
A Star is Born
Untitled (Sheri)
Repeat feature not shot
"Nicole, the Story of ‘O'”
Untitled (Motel Love)
Untitled (Dr. Cocklove)
"Punky World of Adult Cartoons”
Untitled "Switchcraft"
*Winnabango”
Enclosure A-4
1714
1424
1825
1744
1716
1522
2022
1662
677
1679
1810
1778
DATE
10/04/75
10/11/75
10/18/75
10/24/75
10/30/75
11/06/75
11/13/75
11/20/75
11/30/75
12/04/75
12/11/75
12/18/75
12/28/75
1/02/76
1/09/76
1/15/76
1/23/76
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
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1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
1)
1)
2)
1)
2)
K-13
~ FEATURE
Untitled “The Organ Player”
"Teenage Cover Girl”
Untitled “Captive Love"
"Twice is Not Enough”
Proposition 8
Wet Wilderness
Plossie - Previews
The Hippie Hooker
Untitled (Harry Hard)
Untitled (The Magnificent Voyeour)
Devil in Miss Jones
Deep Throat
Titled “Savage Lust”
Untitled (Waltz of the Bats)
Young and Abused
Untitled (Black on White)
Untitled (Twilight Cowboy)
Hawaii Sex 0
Hollywood U. S. A.
Ante Up or Deal
The School Teachers
All in the Sex Family
The Cheaters
Hard Time at the Employment Office
Love Lust Life
Coming West
Getting It On
The Lucky Swingers
Innocent Couple
Twice is Not Enough
Untitled (only feature shot)
All in the Sex Family
Flossie Head
The Surprised Coed
The Hungry Hypnotist
Enclosure A-5
DATE
1/30/76
2/05/76
2/15/76
2/19/76
2/26/76
3/04/76
3/18/76
3/27/76
4/01/76
4/08/76
4/19/76
4/22/76
5/04/76
5/11/76
5/18/76
5/21/76
5/23/76
6/01/76
1)
2)
1)
2)
1)
2)
1)
2)
1)
2)
K-14
PEATURE
~
-
Indianapolis 500
Hell's Kitchen
The Boys in the Band
Little Girl Blue
Bananas
Executive Suite
Film Festival
6 Untitled reels
Keyhole Poker - Untitled
Coming west
Enclosure A-6
DATE
6/04/76
6/10/76
6/20/76
6/26/76
7/08/75
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.