Petition — Harmer v. Motion Picture Film Entitled "Deep Throat,"
Supreme Court brief1977
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1976
No. 76.
JOHN HARMER, RAYMOND P. GAUER,
SALVATORE MAIORINO,
Petitioners,
A MOTION PICTURE FILM ENTITLED “DEEP
THROAT” (35 mm. Color, English Sound Track); VAN
GUARD FILMS, INC GERARD DAMIANO. a.k.a
JERRY GERARD. LOUIS PERAINO a.k.a. LOU PERRY;
GERARD DAMIANO FIL™M PRODUCTIONS, INC.; PHIL
PARISI. AQUARIUS RELEASING CO., INC.; TERRY
LEVINE: PUSSYCAT THEATRES, INC.; VINCENT
MIRANDA: FRANK N. SELTZER, WALTER SELTZER;
GEORGE GLASS: JAY FINEBERG; JACK CHAZAN,
WALNUT PROPERTIES, INC -ERNEST RICORD; BETTE
LOU LEDFORD: ROBERT MATTIAS; JIM JCHNSON;
PUSSYCAT HOLLYWOOD, PUSSYCAT (HOLLYWOOD)
THEATRE, DOES 1 THROUGH 11
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEAL
SECOND APPELLATE DISTRICT (DIV. 1)
James J. Clancy
9055 La Tuna Canyon Road
Sun Valley, California 91352
Counsel for Petitioners
SUBJECT INDEX
Gees sn gc eo ee ee bee OO 2
QUESTIONS PRESENTED . ...+++-e«-+-+ 3-6
CONSTITUTIONAL PROVISIONS INVOLVED. . . 7
STATUTORY PROVISIONS INVOLVED ..... 7
STATEMENT OF THE CASE .....-«-e«.«- S14
STATEMENT OF FACTS. . - « « « «© « « « e15=40
REASONS FOR GRANTING THE WRIT... . .41-79
I The Failure Of The State Of
California To Provide A
Prampt Judicial Forum In
Which To Resolve The "Hard-
Core Pornography vs. Free
Speech" Issue Re The Film
“Deep Throat" Raises A
Substantial Federal
0!) ee
II The Denial Of A Prompt
Judicial Forum In Which To
Contest Respondents’ Right
To Commercially Exhibit
e The Hard-Core Film Which
Is Specially Pleaded In The
Complaint Herein Has Deprived
Petitioners Of Fundamental
Rights Under The Federal
Constitution. . ..... + .64=73
ii
INDEX (cont. ) Page
III The “Special Injury" Concept
Serves No Valid Purpose In
The Present Structure Of The
Law, And Should No Longer Be
A Viable Expedient In The
Disposition Of Public Nui-
sance Abatement Cases Where
There Is Present A Bone
Fide Adversarial Dispute.
Certainly It Has No Appli-
cation Where The Plaintiffs’
Attack Is Based Upon Consti-
tutional Grounds. .... . .74-80
CONCLUSION. . . . ad . . . . ° 7. 7 . * . 80
CERTIFICATE OF SERVICE. * . . . ad o . . 81
APPENDIX A
Informal Memoranda, Orders and un-
reported opinion of the Court of
Appeal, Second Appellate District,
Division 1, in Harmer, et al. v.
"Deep Throat", et al., 2d CIV
Ue cease eeeeense BAR
APPENDIX B
Unreported opinion of the Court
of Appeal, Second Appellate Dis-
trict, Division 3, in Harmer, et
al. v. "The Devil In Miss Jones,
et al., 2d CIV 43778 . . ... . «B1-B22
APPENDIX C
Amendments I and X of the Consti-
tution of the United States. ... cl
INDEX (cont. )
iii
APPENDIX D
31l(a) defining “obscene
Cg
APPENDIX E
California Civil Code, Sections
3479 and 3480, containing the
provisions defining what con-
stitutes a public nuisance ....
APPENDIX F
California Civil Code, Sections
3493 and 3495, authorizing the
abatement of a public nuisance
by a "private person" by a
civil action and by other means
(self-help) tea + S&S ee S&S @ & SS GO
APPENDIX G
California Code of Civil Procedure,
Section 731, authorizing the fil-
ing of a civil public nuisance
abatement action "by any person
whose property is injuriously
affected, or whose personal en-
joyment is lessened by a nui-
APPENDIX H
California Code of Civil Procedure,
Section 527 containing the provi-
sions relating to the granting of
El
Fl
preliminary injunctions. ... . .HI-H3
iv
INDEX (cont. )
APPENDIX I
Rule 977 of the California Rules
of Court, which precludes the
citation of unreported decisions
as precedent ....+-+-+ee-cee-s.
APPENDIX J
1911 Treaty, entitled "Agreement
for the Suppression of the Circu-
lation of Obscene Publications",
37 Stat. 1511-1515 . . . «© ee « «
TABLE OF AUTHORITIES
Art Theater Guild Inc. v. Ewing
421 U.S. 923, 44 L.Ed.2d 82,
95 S.Ct. 1649 (Apr. 21, 1975) ..
Auto Equity Sales, Inc. v. Superior
Court, (1962) 5/7 Cal.2d 450 ...
Besig v. U.S., 208 F.2d 142 (Oct.
Sie SSEBPec oe eee e eee eee
Bloust v. Rizzi, 400 U.S.410, 27 L.Ed.
2d 498, 91 S.Ct. 423 (1971). ...
Joseph Busch et al v. Projection Roan
Theater et al., 44 Cal.App.3d
lil, 118 Cal.Rptr. 428 *-_ee © © @ &
1 v. Hussey, 368 U.S. 297,
7 L.Ed.2d 299, 82 S.Ct. 327
at 301 . . . * . . . . . . . . °
J1-J5
37
TABLE OF AUTHORITIES (Cont.)
Champion v. Ames 188 U.S. 321, 23
S.Ct. 321, 47 L.Ed. 492 (1903) ...
Coleman v. Wilson, 302 A.2d 555,
561 (Mar. 21, 1974). ....24-eee-e
Colorado v. Talron, 544 P.2d 372
~~~. . « «2 ¢ ¢ 66s
Dept. of Administration v. Horne
) . . . . . . . . . . . .
Ex parte Houston v. Hennessey, Jr.,
- 534 S.W.2d 52 (Nov. 10, 1975). ...
Farmer v. Behmer, 100 P.901......-.
Flast v. Cohen, 392 U.S. 83, 20 L.Ed.2d
55
947, 88 S.Ct. 1942 (June 10, 1968) .78,79
Florida v. Aiuppa, 298 So.2d 391
(May 1, 1974) _ a a a a a ae
Freedman v. Maryland, 380 U.S. 5l,
13 L.Ed.2d 649, 85 S.Ct. 734 (1965).
Gibbons v. oqien, 9 Wheat. 1, 6 L.Ed.
3 ( 3 4) . >. . . . - . >. a . >. . .
Harmer et al v. D.M.J., No. 76-111-0. ..
John Harmer, Raymond P. Gauer,
Salvatore Maiorino v. A Motion
Picture Film Fntitled "Deep Throat"
(35 mn. Color, English Sound Track)
42
59
74
et al. No. 63814... ...2.. 4 6 «15,75
2d CIV 43047, 43423, 43612...
Harmer v. lyn Productions,
- 36, 37
Inc., 41.4.6 6 © © © «632,33,34,37
i , 100 U.S. 483,
25 L.Ed. 628 (1879). . . .- «+s -
Herman v. Arkansas, 512 S.W.2d
023 (July Re 1974) a i ae a ae ae
Hoke v. U.S., 27 U.S. 308
(Feb. 24, 1913). se - 2 6.2 2.64 © @
Illinois v. Thomas, 346 N.E.2d
190 (Apr. 7, 1976) ..... e «
J-R Distributors, Inc. et al v.
ees Le Le,
167 (July 25, 1974) .....-.
Landau v. Fording, 245 Cal.App.2d
820, 54 Cal.Rptr. 177
Get. 26, I9GG) ec ccereveces
Landau v. Fording, 388 U.S. 456,
18 L.Ed.2d 1317, 87 S.Ct.
2109 (June 12, 1967) . .~-. «es
Maiorino v. Super tor Court, L.A.
30231, 30 44 . — . a * * _ . * >.
Mangum v. Maryland State Board of
Censors, 325 A.2d 253 (Nov. 25,
- Si
- 46
-52,53
- 46
- 43
- dll
-11,47
- 36
- 4
vii
TABLE OF AUTHORITIES (Cont.) Page
Mangum v. States Attorney for
Baltimore City, 341 A.2d
786 (July 8, 1973) ees 8 2&# 6 8 6 46
Marks v. U.S., _U.S.__, 51 L.Ed.
260, 97 S.Ct _ (Mar. l,
1977) No. 75-708 ..... oe « « 46
McKenzie v. Butler, 398 F.Supp.
. gg gg ) ere 46
Menefee v. City and County of
Denver, Jan. 5, SP ecees 46
Miller v. California et al, 413
U.S. 15; 37 L. Ed. 2d 41 , 431,
93 S.Ct. 2607. . . .- . . . .* .- 58,60
Mugler v. Kansas, 123 U.S. 205. .... 65
Nebraska v. American Theater Corp.,
aoe Game 5, Isle) ec ec ec ee ee 46
Nestle v. City of Santa Monica,
Ao. BY * 5 eee eee
N.Y. v. Mature Fnterprises, Inc.
343 N.Y.S.2d 911 (Mar.1, 1973);
35 N.Y.S.2d 520, 323 N.E.2d 704
OB. By WIG e ceo ececseeceenew &
Ohio ex rel. Keating v. A Motion
Picture Film Entitled "Virgin",
27 Ohio St.2d 278, 272 N.E.2d,
137. > . . . . . . . o . . . . . . 13
Paris Adult Theater I v. Slaton, 413
U.S. 49, 37 L.Ed.2d 446, 93 S.Ct.
2628 (June 21, 1973) . .... . «58,63
viii
TABLE OF AUTHORITIES (Cont.)
People ex rel. Busch et al. v.
Projection Room Theater et al,
7 Cal.3d 42, 130 Cal.Rptr.328
(June l, 1976) . . . . . . . . . . 7
People of the State of California
v. Superior Court, 28 Cal.App.3d
600, 104 Cal.Rptr. 876, 882-885. . .
People of the State of California v.
Superior Court of Orange County,
28 Cal.App.3d, 600, 104 Cal.Rptr.
S76, GA-GMB wc ecco ececaeeves
People of the State of Colorado v.
Stewart, 553 P.2d 74 (May 20, 1976).
People v. Pussycat Theater ....+e-s.
James Phalen v. The Commonvealth of
Virginia, 12 L.Ed. 1030, 1033 (1850)
Ratner v. Municipal Court of Los Angeles
Judicial District, County of Los
Angeles, 256 Cal.App.2d 925, 64
Cal.Rptr. 500, 502, 503 (Dec. 14,
, ae a a a a ee ee a a
Rex v. Curl, 2 Strange 789 (1727) ..
Rice v. Santa Fe Elevator Corp.,
33 U.S. 218, 229-230, 11 L.Ed.
1447, 67 S.Ct. 1146, 1151, 1152,
TSGep ec obec eoeeee ee eee
Roth-Alberts, 354 U.S. 476 1L.Ed.2d
1498, 77 S.Ct. 1304 (1957) 7 . ad . >.
Roth v. U.S., 354 U.S. 476 at 484
(June 2l, 1957). -_2e © © © © @© @© @ ©
Page
- 39,43
; 72
2 14
>. 14
. 34
° 70
° 44
. 70
-59,60
-41,59
ix
TABLE OF AUTHORITIES (Cont.)
S.S.W. Corp. et al v. Slaton, 204
S.E.2d 155 (Feb. 18, 1974). ....
Sir Charles Sedley's Case, 1 SID 168...
Sierra Club v. Morton, 405 U.S. 727,
By ae ee ae ee
Smith v. Texas, 530 S.W. 2d 955
(Jan. 7, 1976). . . «© 2 ee we 2 ©
Southeastern Productions Ltd. v.
Conrad, U.S. 546, 43 L.Ed.2d
448, 95 S.Ct. 1239 (Mar. 18, 1975).
State ex rel. Ewing v. "Without A
Stitch", 37 Ohio St.2d 95,
But Bebeae GUL, BIB. eo ce eeces
State of Michigan ex rel. Cahalan,
229 N.W. 2d 289 (Mar. 4, 1975)...
Stone v. Mississippi, 101 U.S. 816...
Teitel Film Corp. v. Cusack, 390 U.S.
139, 19L.Ed.2d 966, 88 S.Ct.
a
Toucey v. New York Liberty Ins. Co.,
314 U.S. 118 86 L.Ed. 100, 62 S.Ct.
139 (1941). . 7. . . . . . . — . . .
U.S. v. Ome Reel of Film, 360 F.Supp.
1067 (May 15, 1973)... -2 eee
U.S. v. One Reel of Film, Gerard
Damiano Productions, Inc. 481 F.2d
zoe Ghily 16, 1973) 2 2 se ec ee
Page
70
41,42
14,72
46
65, 71
42
14
46
46
x
TABLE OF AUTHORITIES (Cont.)
United States v. Thirty-Seven Photographs,
402 U.S. 363, 28 L.Ed.2d 822,
91 S.Ct. 1400 (1971) ..... ee.
U.S. Steel Corp. v. Save Sand Key, Inc.,
3 (June 12, 1974). . 7. - « . . . .
U.S. v. Two Obscene Books, 99 F.Supp.
760, 763 (Sept. 17, 1951) .....
Ware v. Hylton, 3 Dall.199 (1746) ....
Whiting v. Roxy Ltd.,Inc., 293 N.E.2d
Se e Se! ae eee
United States Code Sections
18 U.S.C. Sections:
1461 ...2e-s
1465 . . - © « ©
Bfap eevee se
a a ae
19 U.S.C. Section 1305 . wccccces
28 U.S.C. Section 1257 (3) ...e«-s«e-e-s
California Rules of Court
Rule 977 . . . . 7 . . . . . . . . i . . .
Califomia Statutes and Code
Civil Code Sections:
, ae
: ee
Pe
ee
Page
~ 42
- 76,77
» 12
- Sl
- 46
- 60
- 60
- 60
- 60
- 60
. 3
- 8,74
732,35
735,38
735,38
INDEX (Cont. )
Penal Code:
Chapter 7.5 ..
Section 3ll ..
Section 11225 .
Section 11226 .
Code of Civil Procedure Sections:
527 . 7 eo . o a o — a o >. * * o e °
731 — — oe oe _ . . — — _ *
Textbooks
Law of Nuisances, H. G. Wood:
Section 23 & 24 a >. . . . o a . o
Section 643 o — a 7 e oo . . > — . o
Law of Nuisance, Joyce, Section 345...
Sutherland Statutory Construction, Volume
Sections 23.22 . . . . , . a . 8 . .
Miscellaneous
Congressional Record for October 13, 1970
Pages 36474, 36478 . . .. +. «2 e«-s
Public Law, 90-100, 81 Stat. 253 ....
Public Law, 90-100, Sectionl......
Senate Resolution No. 477 ...+s+-+«++«e-s.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No. 76-
JOHN HARMER, RAYMOND P. GAUER, SALVATORE
MAIORINO,
Petitioners,
vs.
A MOTION PICTURE FILM ENTITLED "DEEP THROAT"
(35 mm. Color, English Sound Track); VANGUARD
FILMS, INC.; GERARD DAMIANO a.k.a. JERRY GERARD;
LOUIS PERAINO a.k.a. LOU PERRY; GERARD DAMIANO
FILM PRODUCTIONS, INC.; PHIL PARISI; AQUARIUS
RELEASING CO., INC.; TERRY LEVINE; PUSSYCAT
THEATRES, INC.; VINCENT MIRANDA; FRANK N.
SELTZER; WALTER SELTZER; GEORGE GLASS; JAY
FINEBERG; JACK CHAZAN; WALNUT PROPERTIES, INC.;
ERNEST RICORD; BETTE LOU LEDFORD; ROBERT MATTIAS;
JIM JOHNSON; PUSSYCAT HOLLYWOOD; PUSSYCAT (HOLLY-
WOOD) THEATRE, DOES 1 THROUGH ll,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEAL,
SECOND APPELLATE DISTRICT (DIV. 1)
The Petitioners, John Harmer, Raymond P.
Gauer and Salvatore Maiorino respectfully pray
that a writ of certiorari issue to review the
judgment by the Court of Appeal, Second Appel-
late District, Division One; which affirmed Los
Angeles County Superior Court Judge David A.
Thomas' orders, dated Sept. 4, 1973 and Sept.
21, 1973, denying petitioners' motion for a
preliminary injunction and sustaining the general
demurrer to the Complaint in the trial court
below. The California Supreme Court entered an
order on February 3, 1977, denying a petitim
for hearing, without writing an opinion.
OPINIONS BELOW
A copy of Judge Thomas’ informal memorandum
and order, dated Sept. 4, 1973, and his informal
memorandum and order, dated September 21, 1973,
is attached hereto at Appendix A--1 through A-14
A copy of the unreported opinion of the
Court of Appeal, Second Appellate District, Di-
vision One, filed cm December 10, 1976, is
attached hereto at Appendix A-l5through A-32.
A copy of the California Supreme Court
order of Feb. 3, 1977, denying the petition for
hearing, is attached hereto at Appendix A-33.
<_“
JURISDICTION
The order of the California Supreme Court
denying the petition for hearing was entered
on February 3, 1977. The petition for certior-
ari 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 motion picture film "Deep
Throat" is hard-core pornography under federal
standards 1/ and whether a substantial federal
question is raised, when a state judicial sys-
tem denies a state resident access to the state
court to prevent the exhibition of such film in
his local community, where such film is in its
fifth year of exhibitim in that conmunity at
1/ A time and motion study of the film "Deep
Throat" consisting of a chronological series
of still photographs, timed in their relative
order of appearance, depicting the sexual conduct
visually portrayed on the motion picture screen
of the Pussycat Hollywood Theater (being a 4-1
photo-reduction of the time and motion study
of "Deep Throat" which was introduced as Exhibit
"1" on Plaintiffs' Motion for a Preliminary
Injunction) was pleaded specially as Exhibit
"A" to the Complaint, and a "Continuity" contain-
ing photographs and the dialogue of said film
was pleaded specially at Exhibit "B" to said
Complaint.
the time of the final decision of the highest
court in the state denying appellate review of
the trial court ruling. :
2. Whether the facts specifically plead-
ed in the Conplaint indisputably established
petitioners’ right to a preliminary injunction,
and whether in denying a prompt judicial forum
in which to contest the right of the defendants
to publicly exhibit for profit the hard-core
sexual conduct depicted in the motion picture
film described in the complaint, and exhibited
continuously for eight months prior to the filing
of the action, the judicial system of the State
of California has deprived the petitioners as
citizens of the United States of:
(1) due process of law and equal
protection of the law, and
(2) the police power which is inher-
ent in municipal authority, and
(3) one of the fundamental civil
rights essential to the concept of well-
ordered liberty; namely, the right to enjoy
"common decency" and to live in a conmmmnity
whose public morals, moral values, and
environment are free from the illegal, de-
grading, and corrupting influences of such
patently hard-core pornography
where it is common knowledge and the subject
-5-
of judicial notice that, at the time of such
Court's denial of the petition for rehearing
on January 4, 1977, the hard-core film "Deep
Throat", which was "in custodia legis” in the
within "in rem" action, was presently being ex-
hibited in Los Angeles City and County, and had
been exhibited throughout Los Angeles County
continuously for the past five years (1973-1977),
without the District Attorney of Los Angeles
County or the City Attorney of the City of Los
Angeles having made any effort to challenge such
public nuisance in the Courtroom. a/
3. Whether it was a denial of due
process of law for the Court of Appeal below
to rule in the cause herein that (a) a cause
of action has not been stated, and (b) that a
cause of action cannot be stated by amending
the pleadings, where Division 3 of the same
Court has ruled in a companion case entitled
John Harmer, Raymond P. Gauer, Richard Walton
v. A Motion Picture Film Entitled "The Devil
in Miss Jones" et al. (unreported), in an appeal
taken from the sustaining of a demurrer to a
cause of action involving identical pleadings
and similar subject matter, that the cause should
be remanded to the trial court with instructions
2/ See footnote 4 on page 8 infra.
-6-
to grant plaintiffs time within which to file
an amended complaint, in that it appeared to
that Court that plaintiffs might amend the com
plaint to state (1) a controversy and standing
for a cause of action for declaratory relief,
and (2) special injury sufficient to justify
the maintenance of a private suit to abate a
public nuisance, and where the Califormia Supreme
Court has refused to grant a hearing to resolve
the conflict that exists between the two opin-
ions af
3/ A conflict exists between the decision of
the Court of Appeal, Second Appellate District
(Division 3) in John Harmer, Raymond P. Gauer,
Richard Walton v. A Motion Picture Film Entitled
"The Devil in Miss Jones" et al., 2d Civ 43778,
decided Sept. 17, 1976 (unreported), petition
for hearing denied on Nov. 12, 1976, under which
the cause of action was remanded to the trial
court with instructions to grant plaintiffs time
within which to file an amended complaint, and
the decision of the Court of Appeal, Second Ap-
pellate District (Division 1) in John Harmer,
Raymond P. Gauer, Salvatore Maiorino v. A Motion
Picture Film Entitled "Deep Throat" et al., 2d
Civ 43913, decided Dec. 10, 1976 (unreported),
petition for hearing denied on Feb. 3, 1977, which
held to the contrary and affirmed the trial court's
ruling which sustained the general demurrer to
the cause of action below. A copy of the unre-
ported opinion in the “Deep Throat" case herein
is attached to this Petition at Appendix "A" and
a copy of the unreported opinion in "The Devil
in Miss Jones" case is attached to this petition
at Appendix "B".
aFo
CONSTITUTIONAL PROVISIONS INVOLVED
The pertinent provisions of the First and
Tenth Amendments to the Constitution are set
forth in Appendix "Cc".
STATUTORY PROVISIONS INVOLVED
Chapter 7.5 of the Penal Code of California
prohibits the sale, distribution, etc. of "ab-
scene matter". Penal Code section 3ll(a),
defining “obscene matter", is printed at Appen-
dix "D".
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 "E".
Sections 3493 and 3495 of the California
Civil Code, authorizing the abatement of a
public nuisance by a “private person" by a civil
action and by other means (self-help) is printed
at Appendix "F".
Section 731 of the Code of Civil Procedure
of California, authorizing the filing of a civil
public nuisance abatement action "by any person
whose property is injuriously affected, or
whose personal enjoyment is lessened by a
nuisance" is printed at Appendix "G".
Section 527 of the Code of Civil Procedure
of California, containing the provisions relat-
ing to the granting of preliminary injunctions,
is printed at Appendix "H”".
Rule 977 of the California Rules of Court,
which prevents the citation of unreported deci-
sions as precedent, is printed at Appendix "I".
STATEMENT OF THE CASE
For 345 years, petitioners have been denied
access to the California Courts in their efforts,
as plaintiffs in the trial court below, to abate
as a public nuisance, a hard-core pornographic
motion picture film ("Deep Throat") which pres-
ently is, for the past five years has been, and is
about to be,exhibited on the screen of a public
theater in the County of the petitioners’ resi-
dence.4/ During that period of time, and pending
4/ In a Petition for Rehearing filed with the
Court of Appeal on Dec. 20, 1976, petitioners
noted at page 3:
The cause which is now before this Court
does not exist in a vacuum. The Court is
daily made aware of the fact that “Deep
Throat" and “The Devil in Miss Jones" have
been exhibited throughout Los Angeles County
for the past five years and neither the
District Attorney of Los Angeles County nor
-o
the determination of this appeal, petitioners
have, on four separate occasions, attempted and
been denied extraordinary relief by way of writs
of mandate. See Statement of Facts at page 36
infra.
the City Attorney of Los Angeles have made
any effort to challenge those public nui-
sances inthe Courtroom. On this point, see
the copy of page 65 of the Calendar section
of the Los Angeles Times newspaper for Sun-
day, Dec. 19, 1976,...
This advertisement, by the defendants-
appellants herein, broadcasts the facts (1)
that these two films are “Now in its 5th
year" and (2) the defendants - appellees
have expanded their operations “to our
brand new Pussycat Theatre in the San Fer-
nando Valley and Riverside." Appellants
request this Court to take judicial notice
of these facts...
Appellants’ counsel does not wish to
appear disrespectful to this Court, but he
would not be providing Mr. Maiorino with
adequate representation were he not to sug-
gest to this Court on this petition for a
rehearing that, were defendants - appellees
to move these films to a theater within 300
feet of the residences of any one of the
justices on this court, the members of this
Court would be hard put to explain to their
neighbors why the Courts would not afford
them relief under such circumstances...
Success, today, with “Deep Throat" depends
not so much on “good attorneys" as it does
on the willingness of good justices of this
Court to permit this unfortunate phenomenon
to continue without abatement.
-10-
In the Complaint on file below, Petitioners
pleaded factual obscenity (i.e., “indecency")
specially, by attaching an accurate time and mo-
tion study and continuity of the film "Deep
Throat" to the Complaint as exhibits and making
the same a part thereof by reference (see Exhib-
its "A" and "B" to the Complaint and Exhibit "1"
on the Motion for Preliminary Injunction), so
that an issue of law as to the sufficiency of
the accusatory pleading might be placed before
the trial court, which could be tested by the
Defendants’ demurrer. Ratner v. Municipal Court
of Los Angeles Judicial District, County of Los
Angeles, 256 Cal.App. 2d 925, 64 Cal.Rptr. 500,
502, 503 (Dec. 14, 1967). The time and motion
study which is incorporated into the Complaint
by reference and was admitted into evidence as
Exhibit "1" consists of a chronological series
of photographs timed in their relative order of
appearance, depicting fairly and accurately the
sexual conduct visually portrayed on the motion
picture screen by such film. The "Continuity"
which is incorporated into the Complaint is a
reproduction of the sound portion of the subject
film, identifying the actors, their roles and
what they say as the film progresses. Visual
screen depictions are recorded by still camera
alia
photographs reproduced at the exact point in the
dialogue where such images appear, creating a
miniature screen effect. The story line is bro-
ken down into its integral scenes and timed from
beginning to end to identify those segments in
point of time. .
When such specially pleaded matters are com
pared with the subject matter in the 26-minute
silent motion picture film, "Un Chant d' Amour"
adjudged obscene in Landau v. Fording, 245 Cal.
App. 2d 820, 54 Cal.Rptr. 177 (Oct. 24, 1966),
and affirmed on the merits in Landau v. Fording,
388 U.S. 456, 18 L.Ed. 2d 1317, 87 S.Ct. 2109
(June 12, 1967), it is difficult to understand
how such a state of public indecency can come
into existence in a short period of 10 years.
Petitioners submit that one reason for the
proliferation of such hard-core pornography can
be found in the Reply of Commissioner Charles H.
Keating, Jr., dated Aug. 16, 1970 to the First
Draft of the Legal Panel Report of the Commission
on Obscenity and Pornography, Appendix "B" of
which contains a 40-page continuity on the lémm
motion picture film, "A Report On The United
States Supreme Court and Its Recent Decisions in
Obscenity Cases," presented to the Senate rela-
tive to the nomination of Justice Fortas. After
the first showing of the lémm motion picture film
oli2e@
work print to a group of about 20 U-S. Senators
on Sept. 20, 1970, one of the questions asked was
"What was responsible for the great change in the
motion picture area?" To answer that inquiry,
the following historical event 42/ was added to
that documentary.
"Justice Brennan applied what he called
‘national standards' to hold the film 'The
Lovers' not obscene -- a motion picture which
for the first time was allowed to depict
scenes of sexual intercourse -- in this in-
stance, in a bed and bath between the wife
4a/At the core of Justice Brennan's badly con-
ceived judgment in Jacobellis (concurred in by
Justice Goldberg) is his faulty premise that the
motion picture industry would be satisfied with
showing a little bit of sexual intercourse and a
little bit of lewdness. The "runaway" porno film
operation which has developed inthe succeeding
10 years has erecteda monument to that blunder.
Compare the differing philosophical view of Fed-
eral District Court Judge Goodman, expressed in
U.S. v. Two Obscene Books 99 F.Supp 760, 763
(Sept. 17, 1951), affirmed in Besig v. U.S. 208
F.2d 142 (Oct. 23, 1953) (holding "Tropic of Can-
cer" and "Tropic of Capricorn" to be obscene):
"These episodes or passages are stated
to constitute about 13% of the total number
of pages in the book, This, it is asserted,
is an insufficient quantity upon which to
base a finding of obscenity. The Court
must reject any such quantitative test. It
is akin to the excuse of Midshipman Easy's
servant girl that her illegitimate child
was "such a little one”.
-13-
and a casual house guest. A jury and the
State of Ohio, speaking through three of
its courts and 12 of its Ohio Justices,
however, had held otherwise".
The complaint below also seeks forfeiture
of said motion picture film as contraband,
together with an accounting and surrender of
all of the mmetary consideration received as
admission price to such unlawful exhibitions,
The Defendants in said action are the motion
picture film, entitled "Deep Throat", being a
35mm color film with pornographic content, and
the Pussycat Hollywood Theatre, 7734 Santa
Monica Blvd., where that film is playing in Los
Angeles County, and all persons having an in-
terest in said film and said theater.
The rationale for the accounting and sur-
render of unlawful profit relief requested, is
that the filing and service of process of the
It took the State of Ohio 10 years to repair the
damage brought about by Justice Brennan's sub
jective judgment in Jacobellis. See Ohio ex rel
Keating v. A Motion Picture Film entitled "Vixen"
27 Ohio St2d, 278, 272 NE2d, 137 as adhered to by
the Ohio Supreme Court in 35 Ohio St2d, 215, 301
N.E.2d 880, (Sept. 26, 1973). By then Justice
Brennan had again changed his mind. See, in par-
ticular, the rebuke to Brennan's obscenity judg-
ments, expressed by Justice White in his separate
opinion in J=-R Distributors, Inc. et al v. Wash-
ington 41 L.Ed2d 1166 and 1167 (July 25, 1974).
-14-
within "in rem" public nuisance abatement action
placed both the film and the theater (real estate)
itself "in custodia legis", see Toucey v. New
York Liberty Ins. Co., 314 U.S. 118, 86 L.Ed. 100,
62 S.Ct. 139 (1941) and that the inherent power
and duty of a court "to control and prevent the
abuse of its process", see People of the State
of California v. Superior Court of Orange County,
28 Cal. App. 3d, 600, 104 Cal.Rptr. 876, 882-885;
People of the State of Colorado v. Stewart, 553
P.2d 74 (May 20, 1976) requires a surrender of
the unlawful receipts so as to prevent an injus-
tice. The trial court should have stopped the
unlawful exhibitions in 1973 and the appellees
should not be permitted to gain an unlawful ad-
vantage thereby. See State ex rel. Ewing v.
"Without A Stitch", 37 Ohio St. 2d 95, 307 N.E.
2d 911, 918, appeal dismissed for want of a sub-
stantial federal question 421 U.S. 923, 95 S.Ct.
1649, 44 L.Ed. 2d 82. If this Court allows the
judgment of the Court of Appeal to stand, it will
thereby, sub silentio, condone an illegal and
outrageous business, and prevent the application
of fundamental equitable principles which are
sorely needed as remedies in the suppression of
unlawful obscenity nuisances.
STATEMENT OF FACTS
On August 3, 1973, Petitiomers commenced a
civil action in the Superior Court of Los Angeles
County with the filing of the following papers:
1. A Camplaint in Equity to Abate Public
Nuisances, for Declaratory Judgments and For-
feitures, being John Harmer, Raymond P. Gauer,
Salvatore Maiorino vs. A Motion Picture Film En-
titled "Deep Throat" (35 nm. Color, English Sound
Track) et al., No. 63814 (See Clerk's Transcript,
hereinafter designated C.T., at pp. 1-78).
2. Points and Authorities in Support of
Complaint in Equity to Abate Public Nuisances,
Declare Forfeitures, and For Declaratory Judg-
ments (C.T. 79210).
3. Motion For A Preliminary Injunction
(Temporary Writ of Injunction) to Abate a Public
and Private Nuisance, and For a Declaration of
Forfeiture (C.T. 211-213); am
4. Notice of Motion For a Preliminary In-
junction with a trial date of August 28, 1973 at
09:00 A.M., in Department 85 of said Court (C.T.
214-215).
In said civil action petitioners, as residents
and real property owners in Los Angeles County
sought to abate as a public nuisance the Pussy-
a16-
cat Hollywood Theatre, 7734 Santa Monica Blvd.,
in Los Angeles County wherein the hard-core por-
nographic film "Deep Throat" had been exhibited
continuously since on or about Nov. 30, 1972 and
the positive motion picture print used by the de-
fendant operators of said theatre as the means
of exhibiting said motion picture film at that
theatre. A time and motion study of the film
"Deep Throat" consisting of a chronological
series of still photographs, timed in their rela-
tive order of appearance, depicting the sexual
conduct visually portrayed on the motion picture
screen of the Pussycat Hollywood Theatre was
pleaded specially at Exhibit "A" to said Complaint,
and a "Continuity" containing photographs and the
dialogue of said film was pleaded specially at
Exhibit "B" to said Complaint. A summons was
issued and service of process was commenced as to
all defendants named in said action,
On August 15, 1973, a copy of the Summons,
Complaint, Points and Authorities, Motion for
Preliminary Injunction and Notice of Motion For
Preliminary Injunction were served personally q@m
the following Defendants: Vincent Miranda, Wal-
nut Properties, Inc., Pussycat Hollywood, Pussy-
cat Theatres, Inc. On August 17, 1973, a copy
of the Summons, Complaint, Points and Authorities,
——«
o] Jo
Motion For Preliminary Injunction and Notice of
Motion For A Preliminary Injunction were served
personally on Defendant Jack Chazan, alleged to
be the owner of the real property upon which the
Pussycat Hollywood Theatre is located. On Au-
gust 24, 1973, Defendant Pussycat Theatres, Inc.,
appeared by attorney David M. Brown and filed a
Memorandum of Points and Authorities in Opposi-
tion to Motion For Preliminary Injunction (C.T.
216-257). '
Qn August 28, 1973 and August 29, 1973, pe-
titioners' Motion for a Preliminary Injunction
came on for a hearing in Department 85 of the
Los Angeles Superior Court before the Honorable
David A. Thomas, at which David M. Brown appeared
as counsel for Defendant Pussycat Theatres, Inc.
At said hearing petitioners moved that the Con-
plaint on file with the Court be admitted into
evidence and the same was received into evidence
less Exhibit "A" (Time and Motion Study) and
Exhibit "B" (Continuity). (See Reporter's Trans-
cript, referred to herein "R.T." at pages 10-12).
On August 28, 1973, Kenneth Miles was called
as a witness for petitioners (R.T. 52-55) and
stated that he had seen the motion picture film
“Deep Throat" at the Pussycat Theatre in Holly-
wood on two occasions, August 3, 1973, and Au-
gust 16, 1973; that on August 3rd he participated
-18-
in the service of process and on that occasion
entered the theatre and served a subpoena on the
projectionist, Alex Collantes, and a summons m
another person who identified himself as the
manager; that on that occasion he viewed the
program, being the motion picture film "Deep
Throat", a short cartoon, coming attractions and
a short subject entitled "Good Morning", which
lasted about one and one-half to two hours; that
previous to August 16, 1973, he had made arrange-
ments for a County Marshal to serve a subpoena
duces tecum on the manager and on the projection-
ist on August 16; that around noon on August 16,
when the theatre opened, he observed the Marshal
knock on the door, being allowed to enter by a
person who said he was the manager, and observed
the Marshal to serve a subpoena on the same indi-
vidual he had previously served, who claimed to
be the projectionist, and on the person who had
admitted the Marshal to the theatre; that there-
after he remained in the main part of the theatre
for one and one-half to two hours and again
watched "Deep Throat" and the others. A stipu-
lation was thereafter reached between counsel as
to what the balance of Miles' testimony would be
(R.T. 56), namely: That the photographs on pages
1-16 of Plaintiffs’ "1" constituted a fair and
accurate representation of photographs he saw
EO rr Herter eres
-19-
screened at the Pussycat (Hollywood) on August
3 and 16, 1973, and that the sound track trans-
cription in Exhibit "B" to the Complaint was a
fair and accurate representation of the language
and sound appearing on the sound track of the
program insofar as that was reproducible from a
cassette recording of the sam.
A stipulation was reached as to what the
testimony of Petitioers' attorney (Mr. Clancy)
would be (R.T. 56), namely: That he supervised
the preparation of the Time-Motion Study (Exhib-
it "A" to Complaint) and the Continuity (Exhibit
"B" to the Complaint); that he had previously
seen the film "Deep Throat" in Washington, D.C.,
and had made a Time—Motion Study of that film at
that time; that the making of the Time—Motion
Study was supervised by him; that the Time-Motion
Study was made using a Craig (2605) cassette
tape recorder and a Bell & Howell 200 Series
motion picture camera which also took single
still photographs; that the camera is mounted in
a sound-proof box with two microphones, one of
which records the clicks on the camera when
still pictures are taken, and the other which
records the sound track on the screen; that both
sounds are fed into a cassette tape recorder and
recorded thereon; that the Bell & Howell camera
uses a cartridge of 50 foot, No. 2475, recording
-20- -2l-
film, ASA 1000, which takes 40 still photographs
per foot or a total of 2000 pictures per car-
tridge and that the photographs were taken in
the following manner; that an attempt was made
to take at least one picture of every scene and
to take still photos with no greater intervals
than eight seconds; that on June 21, 1973, he
sent Mr. Morelli, his assistant, to the Pussycat
(Hollywood) Theatre with a loaded camera and two
recorders and two cassettes; that Mr. Morelli
returned and gave him the negatives in the car-
tridge and the sound track; that he had the
negative films developed and printed as enlarged
70 mm. prints which appear on Plaintiffs’ "1" as
positive prints; that the Time-Motion Study which
he had made of "Deep Throat” in Washington, D.C.,
is in substantial agreement with the one made at
the Hollywood Pussycat and that he checked the
recorded in the Pussycat (Hollywood) Theatre on
June 21, 1973, was played back and re-recorded
on a second cassette with the timing operations
superimposed thereon; that when such playback
and re-recording was commenced, a stop watch
was started and when each camera click was heard,
the stop watch timing in seconds was called out
audibly so that the second cassette tape record-
ed the sound track from the film, the click from
the camera, and the exact timing in seconds as
read on the stop watch; that upon completion of
the timing operation, the second cassette tape
was replayed and the numerical sequence and
timing for each of the 1117 clicks wre tabulated
on a form and thereafter transferred onto the
labels which were superimposed as legends on
each of the pictures in Plaintiffs’ "1", which
were mounted on 16 pages, comprising Plaintiffs'
timing for the latter for accuracy; that the "1"; that in an eight second interval between
photographs, numbered 1 thru 1117, appear in st. 11 photographs with a motion picture camera
sequential order on one roll of negative film
speed of 16 frames per second, 16 times 8 single
projections would appear on the theatre screen,
appearing on Plaintiffs' "1" were checked with two of which were photographed; that the film
and are in the same order as the photographs on "Deep Throat" as shown was in color whereas the
the negative film; that the timing was accom time-motion photographs were black and white.
plished as follows: The cassette tape recording, e\e The Time-Motion Study was offered by peti-
containing the sound track of the Pussycat tioners' counsel as primary evidence which was
(Hollywood) program and the 1117 camera clicks not subject to the best evidence rule, being a
and the order of the 1117 positive 70 m. prints e\@
~~
timed depiction of the sexual scenes appearing
on the screen which offered something in addition
to what the film itself would present (R.T. 64).
Thereafter, arguments were had as to the accu-
racy of portrayal of sexual conduct in relation
to the totality of the motion picture film.
(R.T. 60-64) Plaintiffs’ "1" was received in
evidence, subject to reconsideration by the Court
on the “best evidence" objection. (R.T. 66)
Salvatori Maiorino, Plaintiff in the action, was
called as a witness for Plaintiffs (R.T. 66) and
testified as follows: That the Pussycat (Holly-
wood) Theatre was located on the south side of
Santa Monica Blvd., about 50 feet west of the in-
tersection of Santa Monica Blvd., and Spaulding
Avenue; that he presently owns and resides on the
property known as 1039 North Spaulding Avenue,
located 350 feet south of Santa Monica Blvd.;
(R.T. 67) that he has lived at that address since
September of 1955; (R.T. 68) that when he pur-
chased the residence in 1955 for $19,700 he had
selected the neighborhood as one which was ac-
ceptable to a family environment; (R.T. 68) that
at that time the theatre now known as the Holly-
wood Pussycat was a nice neighborhood theatre;
(R.T. 69) that he had not seen the motion picture
film "Deep Throat" but had seen the photographic
representations in Fxhibit "A" to the Complaint
I
-23-
and was personally offended and embarrassed by
the presence and playing of "Deep Throat” at the
Pussycat (Hollywood) Theatre; (R.T. 70) that the
change was subtle; (R.T. 71) that first came the
establishments where people would come in and ©
photograph nude women and rent cameras.or filn,
then came places where one could view porno-
graphic-type films and then the massage parlor;
that the most recent change was the so-called
"Sexual Intercourse Center" adjacent to the Puss
'N Boots on the comer of Santa Monica Blvd.
and Spaulding Avenue, which began advertising
its business in Jume of 1973 with signs reading,
"Sexual Intercourse Center” and "Have Intercourse
With A Live Girl" and "Girls and Waterbeds";
(R.T. 72) that other similar businesses appeared
in the immediate neighborhood subsequent to the
first showing in November of 1972, such as the
one on Santa Monica Blvd. between Ogden and
Genesee, which used to be a bookstore; that ad-
vertisements and news accounts appeared on radio
and TV concerning the exhibition of “Deep Throat"
at the Pussycat (Hollywood) Theatre; that he
heard a broadcast of an incident at the Inter-
course Center regarding an arrest for prostitu-
tion which embarrassed him. Objections to the
questions: "Do you regard the reporting of such
an incident in your neighborhood as a matter of
=36=
public scandal" and "Do you regard the exhibition
of the motion picture film 'Deep Throat’ as a
public nuisance insofar as you are concerned"
were sustained on the ground that they were lead-
ing questions. (R.T. 76) He stated that his
family consisted of his wife and two minor boys,
ages 12 and 16, and that he was on the verge of
selling his property until this action brought
some hope. (R.T. 77).
Qn cross-examination Plaintiff Maiorino
stated he had not seen the film "Deep Throat” at
the Hollywood Pussycat Theatre; (R.T. 78) that
he observed persons outside waiting to get in;
that he observed couples, men and women, enter-
ing the theatre during the exhibition of “Deep
Throat"; (R.T. 78-79) that the only “new” busi-
ness he knew of were the two mentioned above;
that the "Sexual Intercourse Center" was not the
"Sexual Catharsis Center", the latter being on
Santa Monica Blvd.; that the sign “Sexual Inter-
course Center" referred to was painted over the
day after an arrest was made for prostitution;
(R.T. 79-80) that he has never been inside the
“Sexual Intercourse Center" except in 1957 or
1958 when that property was part of a restaurant
called "The Golden Lion"; that the change in the
character of the neighborhood began about six to
seven years ago with the introduction of
=~ =
businesses such as massage parlors, model studios,
places selling sexually oriented books ami films,
theaters exhibiting pornographic films, and busi-
nesses uSing as outside advertising, pictures he
thought were and are pornographic; that in the
last six to nine months, (R.T. 82) the change
has doubled its pace; that other changes took
place since "Deep Throat" started showing, such
as a woman living across the street in an apart-
ment being pursued by a man in a car; (R.T. 83)
that he had discussed the matter of deteriora-
tion of the neighborhood with the O'Sheas and
Mrs. Epstein, who owned the property next to him
and behind the theatre; who had expressed a de-
sire to move; (R.T. 84) that people were cat-
calling down the street during the 15 minute
intermission between successive two hour showings;
(R.T. 90) that during that period his children
hear the comments on the movie being made by the
patrons, male and female, and know what's going
on; that such language could be heard by his
children from inside his house; (R.T. 84) that
he objects to the type of language and the type
of remarks and the use of language which is un-
fit; (R.T. 89) that he reported the use of such
language to the Sheriff's Department, but had
not observed any arrest for disturbing the peace
or use of abusive language because he didn't
~26-
think anyone would come out of their house to
quell any type of language; (R.T. 90) that he
had made inquiries of the possibility of a citi-
zen's arrest; (R.T. 90) that he had tried to
quell the language but that it just resulted in
more cat-calling and shouting. (R.T. 90)
On re-direct Maiorino stated that when he
arrived in the area in 1955 the Puss 'N Boots
was a restaurant called The Golden Lion (R.T.
91) and that the Sexual Intercourse Center was
the kitchen for the restaurant; (R.T. 92) that
in 1955 the place occupied by the Sexual Cathar-
sis Center used to be a pub; that it now attracts
a different type of clientele by their advertis-
ing "Sexual Catharsis." (R.T. 92) The matter
was adjourned at 2:45 P.M,
On Wednesday, August 29, 1973, the re-cross-
examination was resumed. Mr. Maiorino testified
that he had become a Plaintiff after Mr. Gauer
called him and asked if he would want to become
a party to this action (R.T. 99).
Qn re-direct, Mr. Maiorino identified four
photographs comprising Plaintiffs' Exhibit "2".
He identified the first photograph as the "Sex-
ual Intercourse Center", located about 250 feet
fram his hame and about 60 feet from the inter-
section of Spaulding and Santa Monica, (R.T. 100)
and stated that such business began on either
a2]
June 15th or June 22nd, 1973, which was the day
the signs "Sexual Intercourse Center", "Have In-
tercourse With A Live Girl", and "Waterbeds Live
Girls" went up. (R.T. 100). He identified the
SEXUAL “"” ‘WAtE
INTERCOURSE
CENTER __
second photograph "as the southwest corner of
Santa Monica and Spaulding with the Pussycat
Theater on Santa Monica Blvd. and the Puss 'N
Boots next to the theatre and the Sexual Inter-
course Center next to the Puss 'N Boots. (R.T.
101). He identified the marquee on the Pussycat
Theatre as "Hundred Percent Gulp - Deep Throat”
and stated that the sign went up when the show
-_"s
started and is still up there now. (R.T. 101).
He stated that the sign was offensive to him;
that "it implies - I don't know how to describe
it - I guess oral copulation or oral sodomy
- « - SO there is nothing else you can define
what this Hundred Percent Gulp ‘Deep Throat’ -
what they imply. I don't think it leaves any-
thing to anyone's imagination... ." (R.T.
102).
He identified the third photograph as a
view of the intersection of Spaulding and Santa
Monica showing the Pussycat Theatre, the Puss
;
‘
4
-29-
'N Boots and the place which formerly was a pub
serving beer but which no mre than six months
ago became the Sexual Catharsis Center. (R.T.
102).
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bookstore at the intersection of Santa Monica
and Ogden, referred to by him on direct, which
in May of 1973 became known as "Kama Sutra -
Phrontistory." (R.T. 103).
Qn further re-cross he stated he had never
been inside the "Sexual Catharsis Center" or
the Kama Sutra business; (R.T. 104) that his
knowledge of that business was derived from
the sign "Exotic Girls" and the girls standing
outside very scantily dressed in conversations
with passerbys. That he wouldn't be able to
answer truthfully whether "Deep Throat" or
the massage parlor started first because the
timing was so close; (R.T. 105) that before
the film "Deep Throat" appeared, model studios
and bookstores selling sexually oriented books
and/or magazines and film arcades showing sex-
ually oriented films existed in the neighbor-
hood before "Deep Throat" began showing, but
not before the Pussycat Theatre came and
started their advertisement and drew that type
of clientele. (R.T. 106).
At the conclusion of Mr. Maiorino's testimony
shea ine CI an Gib ah @e wtite.
Mn We
eile
Defendants' Motion to Strike his testimony (R.T.
107) was denied (R.T. 112) and Exhibit 2, parts
1, 2, 3 and 4 were admitted into evidence. (R.T.
113). Plaintiffs offered in evidence the film
"Deep Throat", under the subpoena duces tecum
for a viewing by the Court, (R.T. 113) or in
absence thereof, the admission into evidence of
Exhibit "B" to the Complaint - the Continuity
(R.T. 113). An objection to the introduction
of the same on. the grounds of the best evidence
was taken under submission. (R.T. 113). Defense
counsel Brown asked the Court for leave to intro-
duce evidence on nonobscenity if the Court got
to that issue, and the same was granted, the
Court saying: "This does not discount the argu-
ment of the plaintiffs that from the evidence
heretofore submitted, this may be deemed obscene,
per se, for it is possible that will be a ruling
» «+ ." “If it gets down to, Mr. Brown, the
factual issue of obscenity beyond obscenity, per
se, I will permit you to present evidence." (R.
T. 115). Defendants’ objections to hearsay state-
ments in the Complaint and Motion to Strike Hear-
say Statements in the Complaint on the ground
that the Complaint was verified only by an attor-
ney were overruled as untimely. (R.T. 140).
Arguments were had on the matter and both parties
rested. (R.T. 149).
@32=
On August 31, 1973, Defendants Pussycat
Theatres, Inc., Vincent Miranda, Frank N. Seltzer,
Walter Seltzer, George Glass, Jay Fineberg,
Jack Chazan, Walnut Properties, Inc., Bette
Lou Ledford, Robert Mattias, Jim Johnson, Pussy-
cat Hollywood and Pussycat Hollywood Theatre,
filed a demurrer with the Court alleging, inter
alia, that each of the two causes of action
of said Complaint failed to state facts suffi-
cient to constitute a cause of action and noticed
the same for a hearing on September 14, 1973.
(C.T. 290-294).
Qn September 4, 1973, Judge David A. Thomas,
speaking for the Superior Court in a minute
order (C.T. 303) and informal memorandum (C.T.
298-302), denied Plaintiffs’ Petition for a
Preliminary Injunction. In such memorandum,
Judge Thomas ruled that Harmer v. Tonylyn
Productions, Inc., 23 Cal.App. 3d 941, "precludes
pendente lite relief upon grounds entirely
preliminary to the issue of whether the film
"Deep Throat' is obscene under Penal Code Section
311" and made no determination on that issue.
(C.T. 299).
As to the first cause of action brought
under Civil Code Sections 3479, 3480 and 3493
to enforce the right of a private citizen to
abate a public nuisance on a showing of a special
o33<
injury to the plaintiff, Judge Thomas ruled that
"In Tonylyn, the Court held that the showing
of a film in a closed theater, viewed only by
those patrons who paid the admission price and
entered the theater, did not constitute a public
nuisance;" (C.T. 300) that "while it would be_
constitutional for a California court to hold
that an obscene film shown in a closed theater
is a public nuisance, the California courts may,
if they choose, hold otherwise, and the California
Appellate Court, in Tonylyn clearly held, as set
Out above, that said showing in a closed theater
does not constitute a public nuisance under Cali-
fornia law... ;" (C.T. 300-301) that "The
testimony of Mr. Maiorino neither established
evidence in support of the allegations of special
injury pleaded in the Complaint (see Complaint,
Para. 23) nor otherwise established that special
injury which might form the basis of maintaining
this action for public nuisance . .. ;" (C.T.
301) and that "Nestle v. City of Santa Monica
(1972), 6 Cal. 2d 920, had not changed the law
concerning standing to sue for abatement of a
public nuisance." (C.T. 301).
As to the second cause of action brought
under Penal Code Section 11226, et seq., known
as the Red Light Abatement Act a.k.a. Abatement
of Unlawful Activities, Judge David A. Thomas
-34-
ruled that "In Tonylyn, the Court construed
Penal Code Section 11225 to exclude . . ." "“de-
Pictions in closed theaters of (lewi shows and
exhibitions) by still or motion picture. .
-" (C.T. 301) and that "Tonylyn declares that
the Red Light Abatement Act does not include
the exhibition of a motion picture, even if
it is obscene."2/ (C.T. 301) Judge Thomas stated
that "The Court also has read the Memorandum
of Decision of Judge Bruno in People v. Pussycat
Theater, Superior Court of Santa Clara County
#290747, and while it expresses admiratim
for Judge Bruno and much of what he says in
said Memorandum, it cannot agree with his state-
ment that "The statement in Harmer v. Tonylyn
Products (sic) Inc., (cites omitted) that the
law cannot apply to films must be held to be
an inadvertent or inappropriate statement .. .;"
(C.T. 302) that "Although this Court has an
intellectual problem with Tonylyn, it cannot
disregard or refuse to follow Tonylyn, "citing
Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal. 2d 450 (C.T. .302). A copy of Judge
Bruno's Memorandum of Decision in People v.
Pussycat Theater, supra, applying the Red Light
Abatement Act to a theater which was showing
5/ The Petition herein does not challenge
the trial court's ruling on the second cause of
action under Penal Code Section 11226 et seq.
-35-
"Deep Throat" is attached as Appendix F to Appel-
lants' Opening Brief.
On September 14, 1973, the demurrer of Defen-
dants Pussycat Theatres, Inc., Vincent Miranda,
Frank N. Seltzer, Walter Seltzer, George Glass,
Jay Fineberg, Jack Chazan, Walnut Properties, Inc.,
Bette Lou Ledford, Robert Mattias, Jim Johnson,
Pussycat Hollywood and Pussycat Hollywood Theatre
came on for a hearing in Department 85 of the Los
Angeles Superior Court before the Honorable David
A. Thomas. Arguments were had thereon and the
matter as to whether Plaintiffs had stated a
cause of action to abate a public nuisance upon
a showing of "special injury" under Civil Code
Sections 3479, 3480 and 3493 and whether a cause
of action had been stated under Penal Code Section
11225 were taken under submission.
On September 21, 1973, by order (C.T. 306)
and informal memorandum Judge David A. Thomas
sustained the demurrer to the Complaint and ruled
as follows: "The Complaint clearly attempts to
allege a public nuisance under Civil Code Section
3480 and violation of the ‘Red Light Abatement
Act' (P.C. Section 11225), and clearly cannot
state a cause of action on those theories.”
(C.T. 304).
On September 20, 1973, Appellants filed a
notice of appeal from the aforementioned ruling
a36=
and a notice to prepare the Clerk's transcript.
A petition for writ of mandate entitled, John
Harmer, Raymond P. Gauer, Salvatore Maiorino
v. Superior Court of the State of California
for the County of Los Angeles, 2 Civ 43047,
was filed with the Court of Appeal, Second Appel-
late District, on October 12, 1973, and was
denied by that Court (Division Four) without
opinion on October 18, 1973. A petition for
hearing was denied by the California Supreme
Court on November 21, 1973, with Justices Burke
and Clark dissenting. 2/
On December 17, 1973, Petitioner Maiorino
herein filed an original petition for writ
of mandate in the California Supreme Court, en-
titled, Maiorino v. Superior Court, L.A. No.
30231 and, on the same date, that Court trans-
ferred such matter to the Court of Appeal, Second
District. mn January 4, 1974, Division Four
of the Court of Appeal denied said petition in
Maiorino v. Superior Court, 2 Civ 43423.2/
On January 22, 1974, Petitioner Maiorino filed
a second original petition for writ of mandate
in the California Supreme Court, entitled Maio-
rino v. Superior Court, L.A. No. 30244, and
6/ A certified copy of the records in 2d Civ
43047, 43423, and 43612 is being lodged with
the Clerk of this Court, concurrently with this
Petition.
aSPe
on the same date, that Court transferred the
second original petition to the Court of Appeal,
Second District. On January 29, 1974, the Court
of Appeal denied said second petition in Maiorino
v. Superior Court, 2 Civ 43612:/ a petition
for hearing on the denial of said second original
petition, entitled Third Petition for Original
Writ of Mandate and/or, Alternately, Petition
for Hearing on Second Petition by Court of Appeal,
Second District, was filed on February 8, 1974, .
and was denied by the California Supreme Court
on February 27, 1974, with Justices Burke and
Clark dissenting. &/ ;
Petitioners herein filed a Notice of Appeal
and Notice to Prepare the Clerk's Transcript
on September 28, 1973, and the Record on Appeal
was filed on March 21, 1974. Appellants' Qpening
Brief was filed on April 22, 1974, and Respon-
dents’ Brief was filed on or about September
10, 1974.
On December 27, 1974, the Court of Appeal,
Second District, Division 3, filed its decision
in Joseph Busch et al. v. Projection Room Theatre
et al., 44 Cal.App. 3d 111, 118 Cal.Rptr. 428,
holding, contrary to the law stated in Harmer
et al. v. Tonylyn Productions, Inc., supra, that
the continuous exhibition in a theater of obscene
motion pictures can constitute a public nuisance
-38-
as an activity which is “indecent or offensive
to the senses . . . so as to interfere with
the comfortable enjoyment of life or property"
and which "affects at the same time an entire
community or neighborhood, or any considerable
number of persons... .".
On February 3, 1975, Division 1 ordered
this appeal on calendar for oral argument and
the same were held on February 25, 1975.
On March 27, 1975, Division 1 filed its
opinion affirming the trial court's orders,
which had sustained the general demurrer to
the second cause of action of Plaintiffs Harmer,
Gauer and Maiorino (based upon the Red Light
Abatement Law) and to the first cause of action
of Plaintiffs Harmer and Gauer (based upon the
right of a private citizen to enjoin and abate
a public nuisance under Civil Code sections 3480
and 3493) and had denied Plaintiffs' motion
for a preliminary injunction under both causes
of action, including Maiorino's motion for a
preliminary injunction under his first cause
of action on the singular ground that Maiorino's
first cause of action failed to state a claim
as to which a preliminary injunction could be
granted.
On May 5, 1975, petitioners herein filed
a Petition for Hearing in the California Supreme
-39-
Court and on May 22, 1975 that Court granted a
hearing in such matter.
On June 1, 1976, the California Supreme Court
filed its opinions in People ex rel. Busch et
al. v. Projection Room Theater et al., 17 Cal.
3d 42, 130 Cal.Rptr. 328 (June 1, 1976) and such
decision became final on or about August 1, 1976.
Qn August 12, 1976, that Court retransferred this
appeal back to the Court of Appeal, Second Dis-
trict, Division One for reconsideration in light
of Busch, supra.
On October 8, 1976, petitioners were inform
ed by telephone by the Clerk of the Court of Ap-
peal (Division One) that a supplementary brief
would be received by the Court, and that such
was to be filed on or before October 25, 1976.
On October 25, 1976, petitioners filed and served
Appellants' Supplementary Brief.
On November 23, 1976, the Court of Appeal |
(Division One) heard reargument, and on December
10 filed its opinion affirming the orders of the
Trial Court. A copy of said opinion is attached
to this Petition at Appendix "B".
Qn December 20, 1976, petitioners filed a
Petition for Rehearing in the Court of Appeal.
In the Petition for Rehearing at Page 3, peti-
tioners asked the Court of Appeals to take judi-
cial notice of (1) Page 65 of the Calendar Section
-40-
of the Los Angeles Times newspaper containing
the adult movie advertisement for Sunday, Decem-
ber 19, 1976, containing the Pussycat Theatre's
advertisement for "Deep Throat" and broadcasting
that it is "Now in its 5th year" and is expand-
ing its operations to the San Fernando Valley
and Riverside; (2) Page 54 of the Los Angeles
Times Calendar section containing a news report
on the "Decline and Stabilization of the Adult
Film", the full swing to hard-core, and state-
ments of the "surefire" formla for what will
work today", attributed to Appellee Miranda
and (3) the fact that neither the District Attor-
ney of Los Angeles County nor the City Attorney
of the City of Los Angeles have made any effort
to challenge those public nuisances in the Court-
room; and to grant a rehearing on the questions
presented in the appeal.
On January 4, 1977 the petition for rehear-
ing was denied.
a6i-
ARGUMENT
POINT I
THE FAILURE OF THE STATE OF CALIFORNIA
TO PROVIDE A PROMPT JUDICIAL FORUM IN
WHICH TO RESOLVE THE "HARD-CORE PORNO-
GRAPHY VS. FREE SPEECH" ISSUE RE THE
FILM "DEEP THROAT" RAISES A SUBSTANTIAL
FEDERAL QUESTION.
In the 18 terms of Court since Roth-Alberts,
354 U.S. 476, 1 L. Ed.2d 1498, 77 S.Ct. 1304 (1957),
was decided in June of 1957, the dockets and de-
cisions of this Court have chronicled a major
governmental struggle over the public morals of
this nation (as they relate to human sexuality),
between the constitutional powers of the govern-
ment as a whole (State) and the people, embodied
in the Tenth Amendment (Police Power), and the
countervailing rights of the individual set forth
in the First Amendment. In the pattern which
has evolved from those decisions, this Court has
fashioned a procedural requirement to maintain
the balance. As recently as the 1974 October
Term, Justice Blackmun, writing the majority
opinion for five justices, in Southeastern
Productions Ltd. v. Conrad, 420 U.S. 546, 43
-42-
L.Ed.2d 448, 95 S.Ct.1239 (March 18, 1975) ruled
that minimal procedural safeguards had not been
provided to the individual, in a case where
government (the City of Chattanooga) sought
to deny the use of a municipal auditorium for
presentation of the theatrical production "Hair".
See also: Freedman v. Maryland, 380 U.S. 5l,
13 L.Ed.2d 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).
The central theme in all of these decisions
has been, as stated by Justice Blackmun in South-
eastern Productions Ltd., supra, at page 460,
that:
"a prompt final judicial determination
must be assured”.
The petition herein asserts that procedural
requirement as a federal right - the right to an
immediate hearing and determination.”/ where
a —
7/ Petitioners claim a civil right as individuals
to live in an environment which is free from the
corrupting influences of hard-core pornography.
The judicial system in California, by its refusal
to provide a prompt forum for the issues herein
presented, has effectively imposed a “prior re-
straint" on the Community's right to “speak out”
in this regard, and the right of individual mem-
v8
=43-
such federal procedural safeguards do not exist
by statute, the State Court is required to fashion
the same through judicial construction and inter-
pretation. See People ex rel. Busch etc., et al.
v. Projection Room Theater, et al., 17 Cal. 3d
42, 130 Cal.Rptr. 328 at 338.
Petitioners contend that the action of the
Trial Court sustaining the demurrer and preclud-
ing immediate relief on petitioners’ application
for extraordinary relief and a prompt judicial
forum to determine the "Hard-core pornography vs.
Free Speech" issue re the film "Deep Throat”
raises a substantial federal question in that the
evidence which the petitioners offered in support
of their motion, and which was uncontroverted,
showed: (1) that under Near, supra, properly
interpreted, "free speech" was not a relevant
issue, and (2) the existence of a nuisance per
bers close enough to the public nuisance to be
affected, to "speak out" when the Community's law
enforcement officials fail and neglect to do so.
See the opinion of the Montana Supreme Court in
U.S. Manufacturing and Distributing Corp. v. City
of Great Falls, 546 P. 2d 522 at p. 526 (February
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?. Is the right of an individual to speak
out against hard-core pornography of a lesser
order than the right to speak out for it (by
exhibiting the same) ?
-44-
se. Reasonable minds would not differ and all
would hold that such evidence showed the film
"Deep Throat" to be "obscene per se" and a public
nuisance as a matter of law.
A. The Film “Deep Throat" Is Obscene As A
Matter Of Law.
In the Complaint on file below, Appellants
have pleaded factual obscenity specially, and by
attaching an accurate time and motion study and
continuity of the film "Deep Throat" to the Cam
plaint as exhibits and making the same a part
thereof by reference. See Exhibits "A" and "B"
to the Complaint and Exhibit "1" on the Motion
for Preliminary Injunction. See also the explicit
sexual conduct alleged in the complaint at pp.
13-17 (C.T. 13-17). Such matters were pleaded
specially so that an issue of law as to the suffi-
ciency of the accusatory pleading might be placed
before the trial court, which could be tested
by the Defendants’ demurrer. Ratner v. Municipal
Court of Los Angeles Judicial District, County
of Los Angeles, 256 Cal.App. 2d 925, 64 Cal.Rptr.
500, 502, 503 (Dec. 14, 1967). The time and
motion study which is incorporated into the Com
plaint by reference and was admitted into evidence
as Exhibit "1" consists of a chronological series
Ps Qos rene
od
afGea
of photographs timed in their relative order of
appearance, depicting fairly and accurately the
sexual conduct visually portrayed on the motion
picture screen by such film. The "Continuity"
which is incorporated into the Complaint is an
accurate reproduction of the sound portion of the
subject film, identifying the actors, their roles
and what they say as the film progresses. Visual
screen depictions are recorded by still camera
photographs reproducted at the exact point in the
dialogue where such images appear, creating a
miniature screen effect. The story line is broken
down into its integral scenes and timed from be-
ginning to end to identify those segments in point
of time.
Plaintiffs’ Exhibits 1 and 2, filed with the
trial court on August 28, 1973, and admitted in
evidence in the hearing on Plaintiffs' Motion for
a Preliminary Injunction (R.T. at pp. 50-66 and
113-145) establish the film "Deep Throat" to be
a film which is obscene per se. Reasonable minds
would not differ and could come to but one con-
clusion, i.e., that the film was hard-ore porno-
graphy. See also: N.Y. v. Mature Enterprises,
Inc., 343 N.Y.S. 2d 911 (Mar. 1, 1973) affd 352
N.Y.S. 2d 346 (Jan. 14, 1974), affd as modified
N.Y. v. Mature Enterprises, Inc., 35 N.Y.S. 2d
520, 323 N.E.2d 704 (Dec. 20, 1974); Whiting v.
-46-
Roxy Ltd., Inc., 293 N.E.2d 889, 891 (Mar. 12,
1973); Coleman v. Wilson, 302 A.2d 555, 561 (Mar.
21, 1974); U.S. v. One Reel of Film, 360 F.Supp.
1067 (May 15, 1973) affd in U.S. v. One Reel of
Film, Gerard Damiano Productions, Inc., 481 F.2d
206 (July 16, 1973); Florida v. Aiuppa, 298 So.2d
391, (May 1, 1974); Herman v. Arkansas, 512 S.W.
2d 923 (July 1, 1974); Mangum v. Md. State Bd. of
Censors, 328 A.2d 283 (Nov. 25, 1974) affd in
Mangum v. States Atty. for Balt. City, 341 A.2d
786 (July 8, 1973); State of Michigan ex rel.
Cahalan, 229 N.W.2d 389 (Mar. 4, 1975); Nebraska
v. American Theater Corp., 230 N.W.2d 209 (June 5,
1975); McKenzie v. Butler, 398 F.Supp. 1319 (July
24, 1975); Ex parte Houston v. Hennessey, Jr.,
534 S.W.2d 52 (Nov. 10, 1975); Smith v. Texas,
530 S.W.2d 955 (Jan. 7, 1976); Smith v. U.S.,
(C.A. 8 unreported) Petition for Writ of Certiorar+
filed on April 10, 1975 and granted by U.S. Supreme
Court on June 21, 1976 in Smith v. U.S., No. 75-
708, _U.S.__, 51 L.Ed.2d 260 97 S.Ct.
(Mar. 11, 1977); Colorado v. Talron, 544 P.2d
372 (Jan. 5, 1976); Menefee v. City and County of
Denver, 544 P,2d 382 (Jan. 5, 1976); and Illinois
v. Thomas, 346 N.E.2d 190 (Apr. 7, 1976).
When such specially pleaded matters are
compared with the time-motion study of the 26-
minute silent motion picture film, "Un Chant
a
@
-47-
d'Amour" prepared by Petitioners' counsel and
adjudged obscene as a matter of law in Landau
v. Fording, 245 Cal.App. 2d 820, 54 Cal.Rptr.
177 (Oct. 24, 1966), hearing denied by the
California Supreme Court and affirmed on the
merits by the United States Supreme Court, after
this Court granted review on a petition for a
writ of certiorari in Landau v. Fording, 388 U.S.
456, 18 L.Ed. 2d 1319, 87 S.Ct. 2109 (June 12,
1967), rehearing denied 389 U.S. 889, 19 L.Ed.
2d 199, 88 S.ct. 16 (Oct. 9, 1967), it is difficult
to understand how such a state of public indecency
can come into existence. A copy of the time-m-
tion study of "Un Chant d'Amour" appearing at
Appendix "A" of the Plaintiffs' Points and Autho-
rities, filed in the trial court was prepared
by counsel for Petitioners, who represents to
this Court that the same is an exact reproduction
of the content appearing in the l6nmm. film, "Un
Chant d‘Amour", which was an exhibit before the
United States Supreme Court in 388 U.S. 456, where
counsel for plaintiffs viewed the same.
B. Under The Facts Pleaded In Their Com
plaint, Petitioners Have Demonstrated A Clear
Right To Extraordinary Relief. The Hearing
The Application For A Preliminary Injunction
Should Have Gone Forward As Noticed And Inme-
diate Relief Should Have Been Granted.
The preliminary injunction issue, involving
the film "Deep Throat" was before the Georgia
Supreme Court in $.S.W. Corp. et al. v. Slaton,
204 S.E.2d 155 (Feb. 18, 1974). ‘There, the
Georgia Supreme Court held at p. 158:
"We acknowledge that interlocutory
judicial restraint with respect to a First
Amendment claim must be reasonable and
should be followed as promptly as is prac
ticable by a final judicial determination
of First Amendment issues. We.tried to
say this as plainly as we knew how in this
court's order of October 1, 1973, denying
the motion for supersedeas in this case
(see appendix. )
"But for this court to hold that a
film, judicially determined to be obscene
at a preliminary hearing, cannot be sup-
pressed during the pendency of the litiga-
tion as to whether it is obscene or not
i
e
4
-49-
would effectively deny the state the right
to suppress the showing of an obscene film.
This is so because without the possibility
of interlocutory prohibition, a film, ul-
timately adjudged to be obscene, could be
shown during the many months and years of
trial and appellate litigation permitted
by our system before a judgment is absolutely
final.
"Obscenity is not protected by the
First Amendment, and after a preliminary
judicial determination that material is ob-
scene, such material is not protected
during the course of the litigation on its
Way to a final judgment. In short, we hold
that interlocutory judicial restraint of ab-
scene material, with adequate provisim
being made that First Amendment claims can
proceed to final judgment at the earliest
practicable date, is not violative of
First Amendment rights.”
Cc. A State May Not Deny Access To The
State Judicial System To Citizens Who Seek ‘To
Prevent The Exhibition Of Hard-Core Pornography
In Their Local Commmnity.
1. The State of California may not deny
access to its Courts or refuse to
entertain civil actions which are
designed to prevent the dissemination
of subject matter which the United
States of America, by treaty, is re-
quired to discourage.
In Roth v. U.S., 354 U.S. 476 at 484 (June
21, 1957) this Court took notice of an existing
international policy agreement:
"But implicit in the history of the First
Amendment is the rejection of obscenity as
utterly without redeeming social importance.
This rejection for that reason is mirrored
in the universal judgment that obscenity
should be restrained, reflected in the in-
ternational agreement of over 50 nations,
8/ "
8/ A copy of the 1911 “Agreement for the Suppres-
sion of the Circulation of Obscene Publications",
37 Stat 1511-1515, referred to by the Roth Court
a7
e
baa Ln Sar,
tM
2
affine
In Hauenstein v. Lynham, 100 U.S. 483, 25
L.Ed. 628 (1879), this Court noted that the
treaties of the United States are as much a part
of the law of every’ State as its own local laws
and Constitution. When the conflict is between
the provision of a treaty and a provision of a
state statute the treaty supercedes prior con-
_ flicting state legislation, and cannot be restric-
ted by later inconsistent state statutes.
Sutherland Statutory Construction, Vol 1A, Sec
tion 23.22. "Conflict between statutes and trea-
ties" at page 262.
A treaty cannot be the Supreme law of the
land, that is of all of the United States, if
an act of a State Legislature can stand in its
way. Ware v. Hylton, 3 Dall. 199 (1746).
2. A state public policy which would
permit the dissemination of hard-core
pornography would be invalid under the
“one people" concept regarding the
federal police power.
at footnote 15 is attached as Exhibit "J" to
this Petition. In that treaty, the United
States of America, as a signatory nation, ex-
pressed the national desire to repress “offenses
connected with obscene publications" and entered
into a mutual compact with other nations to that
end.
-52-
The "one people" concept of federalism,
(see Hoke v. U.S., 27 U.S. 308 (Feb. 24, 1913),
envisions the federal government as having been
granted plenary power and charged with the con-
comitant duty and responsibility of administer-
ing those controls, which have been established
by their representatives at the national level,
in a way which will safeguard the standards of
public decency (morality) which are common to
the individual State members of the compact.
Under the “one people" concept the federal
government has total control over subject matter
as to which reasonable minds would not differ
and all would hold to be pornographic (hard-
core pornography).
Petitioners dispute with the ruling of the
Court of Appeal below 2/ is its refusal to con-
sider the inescapable consequences flowing from
the "one motion" concept which has been devel-
oped in aid of maintaining good public morality.
9/ See Petition for Rehearing at pages 2-4. Cf.
the trial court's ruling that, were Maiorino to
attempt to amend:
“on amendment, the alleged obscenity of
the picture 'Deep Throat' will not form
thebasis for Plaintiff Maiorino's Alle-
gations of private nuisance". (R.T. 305,
also appendix herein at pp. A- ll
Z
-
%
See Part XIV entitled "The ‘One People' Con-
cept," 1°/ appearing in "The Challenge of a
Modern Federal Criminal Code Statement in the
U.S. Senate by Senator John L. McClellan,
March 11, 1971, in Hearings Before the
1C0/ XIV. THE "ONE PEOPLE" CONCEPT. Between
the Code of 1909 and the codification of 1948,
a number of significant new Federal criminal
offenses were enacted. Their significance
can be best understood, however, by prefacing
their consideration by a reference to Madison's
conception of the scope of the powers of the
Federal Government. In the Federalist No. 44,
he observed:
The powers delegated by the proposed Con-
stitution to the Federal government are few
and defined. Those which are to remain in the
state governments are numerous and indefinite.
The former will be exercised principally on
external objects, as war, peace, negotiations,
and foreign commerce; with last the power of
_taxation will, for the most part, be connected.
The powers reserved to the several states will
extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties,
and properties of the people, and the internal
order, improvement, and prosperity of the state.
This limited conception of the role of
the Federal Government stands in sharp contrast,
of course, with what as a matter of history
has come to pass. For example, in June, 1910,
less than 6 months after the Code of 1909 went
into effect, Congress passed the Mann Act, a
provision against the "moral misuse” of the facil-
ities of interstate commerce. (Act of June 25,
1910, c. 395, 36 Stat. 825.) In Hoke v. United
States, 277 U.S. 308, 322 (1913), upholding the
act, Mr. Justice McKenna employed expressions
which, when considered, serve as a reminder that,
-54-
Subcommittee on Criminal Law and Procedures of
the Committee on the Judiciary, United States
Senate, Ninety-second Congress, First Session,
Part 1," at p. 30. In Congress, the
since 1872, Congress had been acting, intermit-
tently, upon a principle foreign to Madison's that
did not come into application until after the
Civil War. He said:
"Our dual form of government has its perplex-
ities . . . but it must be kept in mind that we
are one people .. . and the powers (granted to
the Federal government) .. . are adapted to be
exercised, whether independently or concurrently,
to promote the general welfare, material and moral."
The inference is plain. Lotteries, frauds,
circulation of obscene literature, prostitution,
marcotic addiction, all were, at first, well with-
in what Madison had in mind when he commented
that the powers reserved to the States extended
to “all objects which, in the ordinary course
of affairs, concern... the internal order,
improvement, and prosperity of the state." The
trouble was that it proved, as we became not only
one people, but one nation, impossible for the
States, under their own powers, effectually to
preserve “internal order" in these matters when
the facilities of the mails were seen to operate,
in one fashion, and the privileges of interstate
commerce, in another, to negate the efforts of
any state to suppress what the people of the na-
tion saw as national evils. In the judgment of
many, these evils were pervasive throughout the
whole nation. There were, moreover, Federal
constitutional powers under which they could be
attacked by the enactment of federal criminal
legislation. From time to time, therefore, Con-
gress made use of the powers assigned to the
general government, singly or in combination, “to
promote the general welfare, material and moral."
(
several states have assembled and established a
comprehensive set of federal. controls of ob-
scenity over (1) importation from abroad, (2)
use of the mails, (3) transportation in inter-
state conmerce, and (4) international movement.
In view of such federal legislation, obscenity
(hard-core pornography) is not simply a matter
of state interest. It is, under the "one people"
concept, a matter of state and federal interest.
Independent federal interest have been "identi-
fied" by this Court in the well-documented views
of Justice Harlan. See, for example, Roth v.
U.S., 354 U.S. at 497-498. Petitioners submit
that the foundation for Harlan's views are to
be found in the "one people" concept. In
granting such powers to the Federal government,
it was the expectation of the compact States
that the Federal government would administer
those powers to suppress that subject matter
which was considered by the States as a whole
to be injurious to public morals, as declared
by their representatives in federal legislation.
See Coampion v. Ames, 188 U.S. 321, 23 S.Ct.
321, 47 L.Ed. 492 (1903), where the court said
at pp. 356 and 357:
-56-
"If a state, when considering legis-
lation for the suppression of lotteries
within its own limits, mav properly take
into view the evils that inhere in the
raising of money, in that mode, why may
not Congress, invested with the power
to regulate commerce among the several
States, provide that such commerce shall
not be polluted by the carrying of lottery
tickets from one State to another? In
this connection it must not be forgotten
that the power of Congress to regulate
commerce among the States is plenary,
is complete in itself, and is subject
to no limitations except such as may be
found in the Constitution... . But
surely it will not be said to be a part
of anyone's liberty, as recognized by
the supreme law of the land, that he shall
be allowed to introduce into commerce
among the States an element that will
be confessedly injurious to the public
morals ... As a State may, for the
purpose of guarding the morals of its
own people, forbid all sales of lottery
tickets within its limits, so Congress,
for the purpose of guarding the people
-57-
of the United States ayainst the ‘widespread
pestilence of lotteries’ and to protect
the commerce which concerns all the States,
may prohibit the carrying of lottery tickets
from one State to another. In legislating
upon the subject of the traffic in lottery
tickets, as carried on through interstate
cammerce, Congress only supplemented the
action of those States—perhaps all of them —
which, for the protection of the public
morals, prohibit the drawing of lotteries,
as well as the sale or circulation of lot-
tery tickets, within their respective limits.
It said, in effect, that it would not permit
the declared policy of the States, which
sought to protect their people against the
mischiefs of the lottery business, to be
. overthrown or disrecarded by the agency
of interstate commerce. We should hesitate
long before adjudging that an evil of such
appalling character, carried on throuch
interstate commerce, cannot be met and
crushed by the only power competent to that
end... ." (Our enphasis.)
In enumerating his hard-core pornography
rule limitation on federal power, Harlan was
using as a common denominator that "bottom of
the barrel” quality of material as to which it
-53-
might be said that reasonable minds would not
differ, and could come to but one conclusion.*~’
In Miller v. California et al., supra, this
Court's obscenity decisions took a sharp tur
in course from the direction in which they had
been proceeding. Over night, all of the hurdles
which had been constructed against law enforce-
ment were removed and the pornographers awoke
on June 21, 1973, to find themselves stripped
of their defenses. In spite of the braking ac—
tion which this Court has applied, the expected
positive gains have not been achieved. Nor will
they, until the conspicuous contradiction in
those decisions is corrected12’
1l/ Conceptually speaking, obscenity might be
visualized as a polluted liquid of varying den-
sities contained within a barrel, with hard-core
pornography, with the heaviest density, lying
at the bottom of the barrel. Protected free speech
can be visualized as that clear liquid which
overflows and lies outside the barrel. That
subject matter which lies inside the barrel
and on top of the density layer which is “hard-
' eore pornography" is non-protected subject matter,
which states may legalize or proscribe in their
discretion.
12/ This Court said in Paris Adult Theatre I
v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct.
2628, June 21, 1973:
"The States, of course, may follow
such a ‘laissez faire’ policy and drop all
controls on commercialized obscenity, if
that is what they prefer, just as they can
3. On the question of whether hard-
core pornography is to be tolerated,
federal law has occupied the field.
When Congress exercises a granted power,
the federal legislation may displace state law
umder the Supremacy Clause. Gibbons v. Ogden,
9 Wheat. 1, 6 L.Ed. 23 (1824). Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 229-230, 11
ignore consumer protection in the place,
but nothing in the Constitution compels
the States to do so with regard to matters
falling within state jurisdiction. ..."
Surely this Court was not saying that hard-core
pornography, which under federal law may not
be imported; may not be placed in the mail, may
have no property value, may not be copyrighted
and which may not be sent interstate, can never-
theless be given a legal status and value within
a state? What of the expression in Roth-Alberts,
354 U.S. 476, 485, 1 L.Ed.2d 1498, 77 S.Ct. 1304
(June 24, 1957) that it is the universal judgment
of civilized nations as reflected in their inter-
national agreements, that obscenity should be
restrained? Should not this Court explain that
statement by recognizing the Harlan view express-
ed in Roth v. U.S., 354 U.S. 476, at 500, and
admitting that what the court was talking about,
in so far as States are concerned, was something
which was specifically described, but less than
hard-core pornography (reasonable men would not
differ and could come to but one conclusion),
and yet not quite protected speech.
-60-
L.Ed. 1447, 67 S.Ct. 1146, 1151, 1152 (1947).
(a) The disposition of "hard-core
pornography" inherently, is a matter
for federal control:
In Congress assembled, the representatives
of the several states have established a campre-
hensive set of federal controls on obscenity
over (1) importation from abroad, (2) use of the
mails, and (3) transportation in interstate com
merce, See 18 U.S.C. Sections 1461-1465, 1735,
1737; 19 U.S.C. Section 1305. Those controls
have been supplemented by treaty abroad. Ina
Situation such as this, where the evidence clear-
ly points to a total restraint on such hard-core
pornography, the federal compact must prevail
and federal preemption is clearly operative.
While Congress has never established a definition
of obscenity, it has not, as noted above,
been silent about whether or not obscenity
should be proscribed, cf. Justice Harlan's
discussion of the category of obscenity, “hard-
core pornography", and federal power in relation
thereto, cited with approval in Miller v. Califor-
nia, 413 U.S. 15, 37 L.Ed.2d 419, 431, 93 S.Ct.
2607. As regards the category “hard-core porno-
graphy", see Justice Douglas speaking on pre-
-~6]-
emption in Campbell v. Hussey, 368 U.S. 297, 7
L.Bd.2d 299, 82 S.ct. 327 at 301: |
"We do not have here the question
whether Georgia's law conflicts with the
federal law. Rather we have the question
of pre-emption. Under the federal law there
can be but one ‘official’ standard - one
that is ‘uniform’ and that eliminates all
confusion by classifying tobacco not by
geographical origin but by its character-
istics. In other words, our view is that
Congress, in legislating concerning the
types of tobacco sold at auction, pre-empted
the field and left no room for any supple-
mentary state regulation concerning those
same types.”
(b) The Congressional intent has been
clearly stated that obscenity shall
not be given a free reign.
In its Act of Oct. 3, 1967, Public Law
90-100 81 Stat. 253 (creating the Conmission
on Obscenity and Pornography) Congress speci-
fically held that the traffic in obscenity and
pormography is a matter of national concern.
See Section 1 of Public Law 90-100 which pro-
vided:
~62-
"Section 1. Finding of fact and declaration
of policy. - The Congress finds that
the traffic in obscenity and pornography
is a matter of national concern. The problem,
however, is not one which can be solved
at any one level of government. The Federal
Government has a responsibility to investi-_.-
gate the gravity of this situation and
to determine whether such materials are
harmful to the public, and particularly
to minors, and whether more effective
methods should be devised to control the
transmission of such materials. The State
and local governments have an equal respon-
sibility in the exercise of their regulatory
powers and any attempts to control this
transmission should be a coordinated effort
at the various governmental levels. It
is the purpose of this Act (this note)
to establish an advisory commission whose
purpose shall be, after a thorough study
which shall include a study of the causal
relationship of such materials to antisocial
behavior, to recommend advisable, appropriate,
effective, and constitutional means to
deal effectively with such traffic in ob-
scenity and pornography."
See also, Senate Resolution No, 477, rejecting
the findings and recommendations of the Camis-
sion on Obscenity and Pornography, which recom
mended the liberation of obscenity. (Congres-
Sional Record for October 13, 1970 at pages
36474-36478. )
Petitioners submit that this court has
not indicated, with regard to competing inter-
ests, that it has recognized that the regulation
of “obscenity” is predominantly a matter of
state, not federal interest. In Paris Adult
Theatre, this court was addressing itself to
the opposing interests of the Tenth Amendment
to the Federal Constitution (which reserves to
states the power to regulate obscenity) and the
First Amendment (freedom of speech which tradi-
tionally resists such regulation.) Any argument
that this Court in Paris Adult Theater has re-
jected any need for national uniformity does not
place this Court's remarks in their proper con-
text. The solution therein arrived at was in
response to the problem of how to find an acco-
modation between the opposing interests of the
Tenth Amendment (state police power) and the
First Amendment (free speech). That accommoda-
tion does not dispute or deny the national need
to provide controls which aid in the individual
state efforts to suprress obscenity.
-64-
POINT II
THE DENIAL CF A PROMPT JUDICIAL FORUM
IN WHICH TO CONTEST RESPONDENTS' RIGHT
TO COMMERCIALLY EXHIBIT THE HARD—CORE
FILM WHICH IS SPECIALLY PLEADED IN THE
COMPLAINT HEREIN, HAS DEPRIVED PETI-
TIONERS OF FUNDAMENTAL RIGHTS UNDER
THE FEDERAL CONSTITUTION.
Petitioners as citizens of the U.S. have a
federally protected right to live in a community
whose public morals, moral values, and environ-
ment are free from the degrading and corrupting
influences of the patently hard-core pornography
which is specially pleaded in the Complaint.
The refusal, in 1973 to provide a prompt judi-
cial forum and grant the inmediate relief here—-
in requested has deprived petitioners as citi-
zens of the United States of:
(1) due process of law and equal
protection of the law;
(2) the police power which is in-
herent in municipal authority; and
(3) one of the fundamental rights
essential to the concept of well-ordered
liberty; namely, the right to enjoy "cammon"
-65-
decency” and to live in a community whose
public morals, moral values and environment
are free from the illegal, degrading and
corrupting influences of such patently hard-
core pornography. ~s
A. Where Comercial Vice Is Involved, The
Power To Abate The Same Is Inherent, And Plenary,
And May Not Be Interfered With.
"The power to determine the question
of what will injuriously affect the public
is lodged with the legislative branch of the
Government." Mugler v. Kansas, 123 U.S.
205 at 210 (Dec. 5, 1887).
A legislative act or judicial ruling which
would restrict a municipality's police power to
legislate on those matters considered necessary
to safeguard public morality would constitute an
unconstitutional abridgment of fundamental rights
under the federal constitution. Mugler v. Kar
sas, 123 U.S. 205 at 210, 211. See also Stone
v. Mississippi, 101 U.S. 816, where the United
States Supreme Court noted: |
"no legislature can bargain away the
public health, or the public morals. The
people themselves cannot do it, much less
-66-
their servants . . . government is organized
with a view to their preservation, and can-
not divest itself of the power to provide
for them."
The power to abate a Public Nuisance is one
of the most basic powers of local government -
the power possessed by municipal government in
aid of its duty to protect the public morals of
the local community against that type of public
conduct which is regarded as being malum in se.
In addressing himself to the public morals issue
and the pre-eminent power of local government
to control the same, Woods describes the danger
as being in the nature of a "nuisance per se.”
See "The Law of Nuisances" by H.G. Wood, Sections
23 and 24, at pp. 45-46:
"Section 23. Acts affecting public morals,
public nuisances per se, when. - There are
classes or kinds of businesses which are
nuisances per se, amd the very fact that
they are carried on in a public place is
prima facie sufficient to establish the
offense. But in such cases, if the respon
dent questions that the use of his property
in the manner charged in the indictment
produces the effects set forth therein, and
introduces e""idence to sustain his position,
-67-
it then becames necessary to prove that the
effects are such as are charged. But there
are a class of nuisances arising from the
use of real property and from one's personal
conduct that are nuisances per se, irres-
pective of their results and location, and
the existence of which only need to be
proved in any locality, whether near to or
far removed fram cities, towns, or human
habitations, to bring them within the
purview of public nuisances. This latter
class are those intangible injuries which
affect the morality of mankind, and are in
derogation of public morals and public
decency."
"Section 24. Wrongs malum in se. - This
Class of nuisances are of that aggravated
Class of wrongs that, being malum in se,
the courts need no proof of their bad
results and require none. The experience
Of all mankind condemns any occupation
that tampers with the public morals, tends .
to idleness and the promotion of evil manners,
and anything that produces that result
finds no encouragement from the law, but is
universally regarded and condemed by it as
a public nuisance." (Our emphasis.)
-68-
That municipal power is inherent in govern
ment itself and is so basic that its grant of
authority is said to be "implied", and to flow
from the Common Law and basic civil rights in-
herent in individuals, rather than from "express"
provisions in the City's Charter or the General
Laws of the State. See "The Law of Nuisances,"
Woods, Section 743, at p. 972:
"Section 743. No control over nuisances
without special power. - Therefore, a mumi-
cipal corporation has no control over nui-
sances existing within its corporate limits
except such as is conferred upon it by its
charter or by general law. There can be no
question, however, but that where a nuisance
exists within its corporate limits that is
clearly a nuisance at common law or by
statute, which is detrimental to the health
of the inhabitants, it may be abated by the
authorities, but it must be a nuisance at
common law and one which any person injured
thereby might lawfully abate of his own m-
tion, or in the absence of express or implied
authority given, the removal or abatement
of the nuisance would be unlawful. Where
the thing abated is clearly a nuisance, and
one which affects the health of the city,
-69-
the abatement may be made by the authorities
or by any person injured thereby. The com
mon law in such a case comes in aid of the
authorities, and they are justified in the
act, mot because they are officials of the
city, but because they are citizens injured
by the thing abated." (Our emphasis.)
See also, Section 3495 of the California Civil
Code, at Appendix "F" infra. Joyce, in his
treatise "Law of Nuisance", Section 345, notes
that this commn law power entrusts the mmi-
cipal corporation with not only the right but
the obligation to remove the nuisance; at p. 498:
"The rule is declared to be settled, without
dissent, that, without a special grant of
authority, public corporations may, as a
common law power, cause the abatement of
nuisances, and if the nuisance cannot other-
wise be abated, may destroy the thing which
constitutes it. And it is said that a
municipal corporation has not only the
right, but is also under the obligation, to
remove nuisances which may endanger the
health of its citizens; that it has the
power to decide in what manner this shall
be done; and that its decision is conclusive
unless it transcends the power conferred by
-70-
the charter or violates the constitution.”
The importance of this abatement power was
stressed by the United States Supreme Court in
James Phalen v. The Commonwealth of Virginia,
12 L.Ed. 1030, 1033 (1850):
"The suppression of nuisances injurious to
public health or morality is among the most
important duties of government. . .”
"It is a principle of the commn law, that
the king cannot sanction a nuisance. . ."
B. The California Judiciary Have A Moral
Responsibility As The Guardian Of The Peoples'
Morals.
It was long ago decided that the Courts in
our Anglo-Saxon legal system are the guardian of
the public morals. Rex v. Curl, 2 Strange 789
(1727), Sir Charles Sedley's Case, 1 SID 168.
Where the legislature had bargained away that
power, the California Court in Farmer v. Beh-
mer, 100 P. 901 at 904 had the following to
say:
"It is a novel doctrine that the
Legislature may empower a city by its
charter to suspend the operation of general
laws punishing crime. No one would for a
‘
-71-
moment contend that murder, manslaughter,
larceny, burglary, or any other of the
long list of crimes punishable by statute
could be condoned or palliated by an ordi-
nance regulating or licensing such offenses.
The heinousness or degree of the crime can
make no difference. The statute punishing
the keeping of a house of prostitution as
a crime can no more be suspended in its
Operation than any other criminal statute
Since the legislatures are subject to censure
by the California Courts for failing in their
responsibility to safeguard the public norals,
. then the Courts should also be expected to
reciprocate and exercise those powers and perform
those duties which are required of the Court
under the common law in similar circumstances.
See Stone v. Mississippi, supra.
-72-
C. Respondents Should Be Held Responsible
To The Community For An Accounting As To Their
Unjust Enrichment Arising Out Of An Unlawful
Act.
The subject matter which was pleaded in the
body and Exhibits "A" and "B" to the Complaint,
demonstrated beyond all shadow of a doubt that
the motion picture film "Deep Throat" is porno-
graphy under federal law and, as such, contraband;
that the exhibition should have been terminated,
and that the injunction should have been granted.
Under rudimentary, equitable principles, respon-
dents are required to account to the community
for the unjust enrichment accruing by virtue of
their unlawful act. People of the State of
Califomia v. Superior Court, 28 Cal.App.3d 600,
104 Cal.Rptr. 876, 882-885. See also, Ghio ex
rel. Ewing v. “Without A Stitch", 37 Ohio St.2d
95, 307 N.E.2d 911 (Feb. 27, 1974). Appeal dis-
missed for want of a substantial federal questi
in Art Theater Guild, Inc. v. Ewing, 421 U.S.
923, 44 L.Ed.2d 82, 95 S.Ct. 1649 (Apr. 21, 1975)
where the Ghio Supreme Court held at p. 918:
"However, the Court of Appeals did not
order a forfeiture; it merely required that
appellants account for and pay to the county
-73- -
treasurer the receipts obtained from showing
"Without A Stitch’ after the date on which
the trial court's permanent injunction would
have become effective had the judge not
stayed it. This accounting was not imposed
as a result of any illegal act on the part
of appellants; it was, instead, a recogni-
tion by the Court of Appeals that the trial
court erred when it stayed the effectiveness
of its injunction order. As noted in our
discussion under issue No. III, a trial
court is required by R.C. 3767.05 to issue
a permanent injunction when it declares a
film to be obscene; it does not have the
power to stay the effectiveness of the in-
junction. The only way the Court of Appeals
could rectify that error was to assure that
appellants did not profit thereby — which
was the object of the accounting order."
(Our emphasis.)
POINT III
THE "SPECIAL INJURY" CONCEPT SERVES NO
VALID PURPOSE INTHE PRESENT STRUCTURE
OF THE LAWV, AND SHOULD NO LONGER BE A
VIABLE EXPEDIENT IN THE DISPOSITION OF
PUBLIC NUISANCE ABATEMENT CASES WHERE
THERE IS PRESENT A BONE FIDE ADVER-
SARIAL DISPUTE. CERTAINLY, IT HAS NO
APPLICATION WHERE THE PLAINTIFFS' ATTACK
IS BASED UPON CONSTITUTIONAL GROUNDS.
The opinion of Division Three in the "Devil
in Miss Jones" case,petition for writ of cer-
tiorari filed in this Court on Harmer et al v.
"Devil in Miss Jones" No. 76-1119 is irrecon-
Cilable with the opinion of Division One in the
"Deep Throat" appeal herein. (See Appendix "A"
and "B" herein). These inconsistent results
present a due process and unequal protection of
the law dilemma in the resolution of this “special
injury" issue. To further complicate matters,
the "Devil in Miss Jones" decision is unreported
and, as such, is subject to the prohibition of
Rule 977 of the California Rules of Court, which
prevents that citation as precedent, a result
which violates time-honored "Stare decisis"
principles.
-75-
Petitioners submit that the opinion of the
Court of Appeal (Division 3) in Harmer et al v.
A Motion Picture Film Entitled "Devil in Miss
Jones" recognizes the fact that strict
application of the “special injury" concept in
such a case as this poSes a problem and may not
be in the best public interest. That Court re-
manded the cause to the trial Gourt for amend-
ment "to show special injury sufficient to jus-
tify the maintenaitce of a private suit to abate
a public nuisance or a controversy with a poten-
tial for substantial injury to them justifying
their maintenance of a declaratory relief action."
(See Appendix "B" at pp. 15-16.) Om the other
hand, Division 1, herein, in Harmer et al v. A
Motion Picture Film Entitled “Deep Throat" et
al., Supra, avoided that approach and, giving
lip service to the problem, suggested that if
the "special injury" requirement were to be
recognized as having been met, that it was a
matter for the California Supreme Court to con-
Sider. (See Appendix "A" at pp. 28-29.) Faced
with this "special injury" standing requirement
and dilemma in public nuisance abatement cases
brought by private citizens, the California
Supreme Court did nothing!
-76-
In Save Sand Key, Inc. v. U. S. Steel Corp.,
281 So.2d 572 at 574, the District Court of
Appeal of Florida, Second District, in addressing
itself to the “special injury" standing require-
ment in public nuisance abatement cases brought
by private citizens stated: |
"(I)t is anathema to any system of
justice to proclaim that a right may be
enjoyed by all yet none may protect it.
Accordingly, except in strictly nuisance
cases to date, the obvious recent trend is
to open the courts to afford relief to many
more parties plaintiff than were heretofore
entitled thereto under the ‘special injury’
rule so broadly applied.”
In striking that requirement from the law of
public nuisance, the Court took note of the end
result which, more often than not, flowed from
an adherence to that rule of law:
"(A)1l1 too often we observe the afore-
said duty to abate nuisances rested overly
lang in the bosom of the appointed officials
amd relief was indeed ultimately never
attained by the public or anyone else."
While the District Court of Appeal decision,
above referred to, was subsequently reversed by
the Florida Supreme Court by a 4-3 vote in U.S.
Steel Corp. v. Save Sand Key Inc., 303 So.2d 9
~~, =
(June 12, 1974), the analysis of those justices
who voted for abandoning that test bears recog-
nition, for it points up the injustices which are
being perpetuated by a rigid interpretation of
the “special injury" requirement.22/
While the majority of the Florida Supreme
Court did not uphold the decision of the lower
Florida appellate court which struck the "special
injury” requirement from the law, that Court did
reaffirm an exception previo sly adopted in De-
Peartment of AGministration v. Horne, 269 So.2d
659 /1972), “limited to constitutional chal-
ienges On taxing and spending as earlier in-
dicated.” In that case, the Florida Swpreme
Court stated:
“Appellees have alleged the unconsti-
tutionality of certain sections of an ap-
propriations act. These sections are said
to be violative of constitutional provisions
which place limitations upon enacting legis-
lation regarding state funds. We hold
that such allegation in this narrow area
i3/ In his dissent at p. 14, Justice Ervin of
the Florida Supreme Court recommends for reading
the case comment in University of Florida Law
Review Vol. XXVI No. 2, Winter 1974, p. 360 which
analyzes the Sand Key, Inc., case, and at p. 365
reports on the final disposition in such cases
where there is no one left to enforce the pub-
lic right.
-78-
satisfied the requirement for ‘standing’ to
attack an appropriations act."
The decision of the Florida Supreme Court in
Horne, supra, was based upon the rationale ex-
pressed by this Court in Flast v. Cohen, 392 U.
S. 83, 20 L.Ed.2d 947, 88 S.Ct. 1942 (June 10,
1968). Flast presented the first evidence of a
reevaluation of the special injury rule and its
effect on the standing question. In that tax
payer suit challenging federal spending, the
Court recognized standing without requiring a
showing of special injury. This Court indicated
that standing was merely a threshhold question.
determining whether the dispute sought to be ad-
judicated would be presented in an adversary cor-
text. With this emphasis on the adversary con-
text, the standing criterion approached "injury-
in-fact", “aesthetic, conservational, and recre-
ational as well as economic." The Court express-
ly dismissed the long espoused spectre of muilti-
plicity of actions, recognizing the ability of
the courts to exercise judicial discretion in
order to avert completely frivolous lawsuits.
The recent federal actions defining and
expanding injury-in-fact were based on judicial
interpretation of statutory authority giving
"persons aggrieved" standing to challenge agency
action. This concept was expanded in Sierra
-79-
Club v. Morton, 405 U.S. 727, 732 (1972), hold
ing that where a party does not rely on statu-
tory authorization the question of standing
depends on whether the party has alleged such
a personal stake in the outcome that the dis-
pute will be presented in an adversary context.
Petitioners submit that the nature of the
case -—- being a conflict between alleged first
and tenth amendment rights — places the instant
controversy in that category of exceptions
governed by Horne which call for an acknowledg-
ment of the "standing" rule applied in Fiast v.
Cohen, Supra, and Sierra Club v. Morton, av
supra, rather than the "special injury” rule
formerly adhered to. The Flast and Sierra Club
criteria are fully satisfied by petitioners
14/ See University of Florida Law Review Vol.
XXVI No. 2, Winter 1974, p. 360 at p. 366: "The
public has demonstrated an ability to present the
essential issues with sufficient clarity to in-
sure the requisite adversary context. The in-
stant decision recognizes the judiciary's ability
to utilize modern rules of procedure and pleading
to insure that the proper parties and issues are
before it. By refusing to apply inflexible and
outdated standards that prevent, rather than
promote, an efficient administration of justice,
the instant court has demonstrated Florida's ex-
panding judicial desire to allow citizen parti-
cipation in the resolution of problems that di-
rectly affect them, whether individually or in
common with the community.”
-80-
herein. In few areas of the law is there a
greater need for citizen participation in the
Courtroom in the resolution of problems than in
the legal attack against the growth of porno-
graphy in the local neighborhoods.
CONCLUSION
Petitioners submit that the facts specifi-
cally pleaded in the Complaint clearly established
the film "Deep Throat" to be hard-core porno-
graphy and the petitioners to be entitled to imme-
diate relief by way of a preliminary injunction
against its exhibition. By denying a prompt judi-
cial forum in which to contest the right of the
respondents to publicly exhibit the same for
profit, the State of California has deprived the
petitioners of their federal civil rights to
enjoy "common decency" and to live in a community
whose public morals are free from the corrupting
influences of patently hard-core pornography.
The Writ of Certiorari should be granted as
prayed for.
DATED: May 1, 1977.
Respectfully submitted,
-" *
.
a oe
po AP 4-0 Wr. &i4”
a / 7 | “
Jgttes 4J. Claricy f
Attorney for Petitioners
,
ae
4s
aQ]=
CERTIFICATE OF SERVICE
I hereby certify that on this lst day of
May, 1977, copies of the within Petition
for Writ of Certiorari were mailed, postage
prepaid, to the below listed parties to the
proceedings. I further certify that all parties
required to be served have been served.
David M. Brown, Esq.
433 North Canden
Post Office Box 4055 ;
Beverly Hills, California 90313
APPENDIX A
Trial court memorandum, dated
Sept. 4, 1973 eee *# @ # @ @® A-1 = A-7
Trial court minute order, dated
Sept. 4, 1973 . 2. ee we ee eo 0 0 0 « © AB
Trial court memorandum, dated
Sept. 21, 1973 . . - «© «© 6 © © © AW9= All
Trial court minute order, dated
Sept. 21, 1973 . . « « «6 © © © « Al2 = AHl3
Trial court order of dismissal, dated
Sept. 21, 1973 . 2. 2. ee eee eee e Ald
Unreported opinion of the Court
of Appeal, Second Appellate
District, Division One, in
Harmer, et al. v. "Deep Throat"
et al., 2d Civ 43913 . . ... . A-15 -— A-32
California Supreme Court notice, dated
Feb. 3, 1977, denying a petition
for hearing. ......-.2++ 4 AH33
A-1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
JOHN HARMER, et al., )
)
Plaintiffs,) NO. C 63814
)
vs. ) INFORMAL
) MEMORANDUM
A MOTION PICTURE FILM ENTITLED )
"DEEP THROAT", etc., et al., )
)
Defendants. )
)
The Court has denied through a minute order
of this date plaintiffs’ petition for a prelim
inary injunction against, inter alia, the con-
tinued exhibition of the film "Deep Throat".
Inasmuch as the issue is important and the ground
for the ruling is narrow, the Court sets out
in this Informal Memorandum the bases for its
ruling.
COMPLAINT
The complaint is sunmarized below in order
that the bases for this Court's order may be
understood.
The complaint contains two causes of action.
The first alleges that the picture "Deep Throat"
is obscene and its showing constitutes a public
nuisance within California CC §3480 (Complaint,
A-2
paragraph 34). ‘The second cause of action al-
leges that the showing of the moving picture
"Deep Throat" constitutes a violation of Penal
Code $11225 ("Red Light Abatement Act") by reason
of its obscene nature. Upon the two causes
of action, or either of them, the plaintiffs
pray inter alia for a preliminary injunction
against the continued exhibition of "Deep Throat"
and for a forfeiture of the film. Although
plaintiffs' complaint is long (37 pages), the
above sunmary fairly states plaintiffs’ theories.
ISSUE OF OBSCENITY
Inasmuch as the Court concludes that Harmer
v. Tonylyn Productions, Inc. (1972), 23 Cal.App.
3d 941 (rehearing denied March 30, 1972; pet.
for hring. by the Sup. Ct. denied April 26,
1972), (hereinafter referred to as "Tonylyn")
presently precludes pendente lite relief upon
grounds entirely preliminary to the issue of
whether the film "Deep Throat" is obscene under
Penal Code $311, this Court makes no determina-
tion of said issue, and admonishes all parties
hereto to not misconstrue the present minute
order as one determinative of the issue of ob-
scenity.
APPLICABLE LAW
The preliminary injunction, if granted
at all, would be effective only until trial
@
e°@
a
Se
ee
A-3
of this matter, and this entire ruling will be
superseded by a final ruling after trial. It is
not the function of this Court to finally determine
the issues. Therefore, the Court measures from
the pleadings and evidence only the "(p) robability
«+. Of ultimate success....". State Board of
Barber Examiners v. Star (1970), 8 Cal.App. 3d
716, 738. Further, the injunction should not lie
if the case is "doubtful"; rather, the injunction
will lie only if plaintiff's case is clear and
injury avertible only by injunctive relief.
Schwartz v. Arata (1920), 45 Cal.App. 596. This
probability of success encompasses consideration
of whether the complaint states a cause of action,
and although here defendant has not yet filed a
pleading responsive to the complaint, the Court
has taken into consideration the maintainability
of the action. The limited scope of the ruling
made this date should be clearly understood.
DISCUSSION OF CAUSES OF ACTION
First Cause of Action (public nuisance):
Plaintiffs candidly assert at the very outset of
their presentation that "This is a case of second
impression in the State of California. See Harmer
v. Tonylyn Productions, Inc. (citations omitted)",
as indeed it is. However, plaintiffs forcefully
contend that the recent U.S. Supreme Court deci-
sions (Miller v. California (June 12, 1973) 13
A-4
CrL 3161 and companion cases of the same date)
"..egive voice to a powerful new policy statement
of the Court that legal efforts should be directed
by the states toward bringing this runaway situ-
ation (of purveyance of hardcore pornography)
under control." (Pts. & Auth., page 6).
Although the Court agrees that said Supreme
Court decisions have enunciated new law concern-
ing obscenity, it concludes that said cases
do not change the basis for Tonylyn (which really
is not an “obscenity case” at all, but is me
of statutory construction) which still is binding
on this Court.
In Tonylyn, the Court held that the showing
of a film in a closed theater, viewed mly by
those patrons who paid the admission price and
entered the theater, did not constitute a public
nuisance (opinion, page 943). The Supreme Court
in its recent decisions, particularly in Paris
Adult Theater No. I v. Slaton (June 21, 1973)
13 CrL 3171, did not change the California law
in this respect. All that the Supreme Court
said in Paris is that.a state statute which
prohibits the showing of an obscene film in
a closed theater is not unconstitutional. The
Court very carefully pointed out that the states
need not determine that the converse is true,
saying:
ee
e°@
e°
ee
ee
ce
A-5
"It should be clear from the outset that
we do not undertake to tell the states
what they must do but rather to define
the area in which they may chart their
own course in dealing with obscene material."
Thus, while it would be constitutional for a Cali-
fornia court to hold that an obscene film shown
in a closed theater is a public nuisance, the
California courts may, if they choose, hold other-
wise. And the California Appellate Court, in
Tonylyn clearly held, as set out above, that said
showing in a closed theater does not constitute
a public nuisance under California law. The
recent Supreme Court rulings do not upset Tonylyn
but inform us only that we and the other states
may define, if we choose, exhibitions of obscene
films to be public nuisances.
The testimony of Mr. Maiorino neither estab-
lished evidence in support of the allegations
of special injury pleaded in the complaint (see
Complaint, paragraph 23) nor otherwise established
that special injury which might form the basis
of maintaining this action for public nuisance.
Although plaintiffs have alleged that Nestle v.
City of Santa Monica (1972), 6 Cal. 3d 920, has
changed the law concerning standing to sue for
abatement of a public nuisance, said assertion
simply is not correct, at least in the Tonylyn
and instant situations.
A-6
Second Cause of Action ("Red Light Abate-
ment"): In Tonylyn, the Court construed Penal
Code §11225 to exclude "...depictions in closed
theaters of (lewi shows and exhibitions) by
still or motion picture...." (page 9444 .—There
is no constitutional problem involved in this
portion of the Tonylyn ruling, which is limited
to a construction of the statute. Thus, watever
new policy may have been expressed by the »ecent
Supreme Court decisions concerning obscenity
simply is irrelevant, for Tonylyn declares
that the Red Light Abatement Act does not include
the exhibition of a motion picture, even if
it is obscene.
BINDING NATURE OF TONYLYN
This Court has examined the rationale
for the Tonylyn ruling again, as it has examined
it on earlier occasions (see its Informal Memo-
randum in Busch v. Sex Appeal, etc., C 56573),
and has carefully reread those several Supreme
Court rulings referred to above. The Court
concludes that it is as bound by Tonylyn presently
as it was before said Supreme Court rulings
were issued. The Court also has reac the MEMO-
RANDUM OF DECISION of Judge Bruno in People v.
Pussy Cat Theater, Superior Court of Santa Clara
County, #290747, and while it expresses admira-
tion for Judge Bruno and much of what he says
_—<
A-7
in said memorandum, it cannot agree with his
statement that "The statement in Harmer v. Tonylyn
Products (sic) Inc., (cites omitted) that the law
cannot apply to films must be held to be an inad-
vertent or inappropriate statement....", and cites
People v. Sarong Gals (1972), 27 Cal.App. 3d 46
as authority therefor. Although this Court has
an intellectual problem with Tonylyn, it cannot
disregard or refuse to follow Tonylyn. Auto
Equity Sales, Inc. v. Superior Court (1962), 57
Cal. 2d 450, at 454-455, says:
"Decisions of every division of the
District Courts of Appeal are binding
upon all...the Superior Courts of this
State, and tiis is so whether or not
the Superior Court...Courts exercising
inferior jurisdiction must accept the
law declared by courts of superior juris-
diction. It is not their function to
attempt to overrule decisions of a higher
court."
While in Auto Equity Sales, Inc., supra, at
page 456, the Court recognizes the right of
a Superior Court to choose between conflicting
Courts of Appeal decisions, this Court does
not consider any appellate decision, including
Sarong Gals, supra, to be in conflict with
Tonylyn.
DAVID A. THOMAS
Sept. 4, 1973
‘A-8
SUPERIOR COURT OF CALIFORNIA, COUNTY CF LOS
ANGELES
DEPT. 85
Date: September 4, 1973
HONORABLE David A. Thomas JUDGE
HONORABLE JUDGE PRO TEM
Ed Harrold Deputy Sheriff
C Saunders Deputy Clerk 85
None Reporter
C 63814
John Harmer, et al.
vs.
A Motion Picture Film Entitled
"Deep Throat”
NATURE OF PROCEEDINGS.
c
Mot.on for preliminary In this matter, heretofore
injunction taken under submission
on August 28, 1973, the
and Court now makes the
following ruling:
for a declaration of
forfeiture The motion for prelimin-
ary injunction and for
forfeiture is denied in
accordance with Informal
Memorandum signed and
filed this date.
Counsel for defendant
Pussycat Theatres, Inc.
to serve notice.
Copy of this order and
the Court's Informal
September 4, 1973 (23) Memorandum mailed to
Dept., 85 counsel by U.S. Mail this
date.
ee eee Oe ae ee ee
oan Sencha
| ete
BS.
— ES = . — = aeaenneneinine
A-9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
JOHN HARMER, et al.,
Plaintiffs,) NO. C 63814
Vv.
A MOTION PICTURE FILM ENTITLED
"DEEP THROAT", etc., et al.,
Defendants.
eee ee eee ee ee
The Court writes this Informal Memorandum
to set out the reasoning for its minute order of
this date which sustains the defendants’ demurrer
without leave to amend as to Plaintiffs Harmer
and Gauer, but gives leave to Plaintiff Maiorino
to amend his complaint.
The Complaint clearly attempts to allege a
public nuisance under CCC 83480 and violation of
the "Red Light Abatement Act" (PC §11225), and
clearly cannot state a cause of action on those
theories (see this Court's Informal Memorandum
of September 4, 1973). However, in plaintiffs'
oral argument in response to the defendants’ de-
murrer, plaintiffs asserted that the complaint
seeks to state a cause of action for private nui-
sance, and not public nuisance. Of course, this
argument is completely incorrect, for the entire
A-10
file and earlier proceedings leave no question
but that private nuisance was never pleaded
or advanced by plaintiffs (see the Complaint,
plaintiffs' Memorandum of Points and Authorities,
and plaintiffs' other documents in the file
which indicate that at all times plaintiffs'
theories have been those two first described
above). Nonetheless, the Court has considered
whether plaintiffs can state a cause of action
for private nuisance in order to determine whether
the Court should now give plaintiffs leave to
amend. The Court concludes that there is no
basis for granting Plaintiffs Harmer and Gauer
leave to amend. In reaching this conclusion
the Court adopts that summary of the facts set
out in defendants’ supplemental memorandum of
points and authorities $II B and C(3) concerning
Plaintiffs Harmer and Gaver. There is no doubt
that as to said plaintiffs this is an "obscenity"
case in which plaintiffs seek to enjoin exhibition
of the picture "Deep Throat" for its alleged
obscenity. As earlier determined by the Court,
maintenance of this cause of action by said
plaintiffs runs squarely into Harmer v. Tonylyn
Productions, Inc., (1972) 23 Cal.App. 3d 941.
(Plaintiffs simply are incorrect when they assert
that Tonylyn "conflicts with California precedent
in another District. (see Weiss v. Superior
e@
A-11
Court of San Diego County, 30 Cal.App. 730....)".
The Weiss case is completely distinguishable from
Tonylyn and clearly is not in conflict).
Plaintiff Maiorino is in a different position.
He owns property near the Defendant Pussy Cat
Theater and possibly can state a cause of action
in private nuisance. ( amendment, the alleged
obscenity of the picture "Deep Throat” will not
form the basis for Plaintiff Maiorino's allegations
of private nuisance,
DATED: September 21, 1973
DAVID A. THOMAS
Date: September 21, 1973
HONORABLE David A. Thomas JUDGE
HONORABLE %® JUDGE PRO TEM
Ed Harrold Deputy Sheriff
C Saunders Deputy Clerk 85
None Reporter
C 63814
John Harmer, et al.
vs.
A Motion Picture Film kntitled
"Deep Throat"
NATURE OF PROCEEDINGS.
Demurrer to complaint
by defendants Pussycat
Theatres, Inc; Vincent
Miranda; Frank N. Selt-
zer; Walter Seltzer;
George Glass; Jay Fine-
berg; Jack Chazan;
Walnut Properties,
Inc.; Bette Lou Led-
ford; Robert Mattias;
Jim Johnson; Pussycat
Hollywood and Pussycat
Hollywood Theater
In this matter, hereto-
fore taken under submis-
sion on September 14,
1973, the Court now
makes the following
ruling:
Demurrer is sustained
without leave to amend
concerning plaintiffs
John Harmer and Raymond
P. Gauer on grounds
stated therein.
Order of Dismissal is
prepared as to defendants
concerning plaintiffs
Harmer and Gauer, pursuant
to CCP 581.3.
: : S
September 21, 1973 (1)
A-13
Demurrer is sustained
with 30 days leave to
amend concerning plain-
tiff Salvatore Maiorino,
pursuant to grounds
stated therein. Defen-
dants to serve notice
of ruling.
The amended complaint
shall attempt to allege
private nuisance. The
aforesaid ruling made
in accordance with
Informal Memorandum
signed and filed this
date.
Copy of this order and
Informal Memorandum
mailed to counsel by
U.S. Mail.
Dept., 85
A-15
A-14
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS , NOT FOR PUBLICATION
ANGELES
| ee IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
JOHN HARMER, et ale, = SECOND APPELLATE DISTRICT
a LAINTIFE DIVISION ONE
A MOTION PICTURE FILM ENTITLED ee
"DEFP THROAT", EK., et JOHN HARMER, RAYMOND P. GAUER, )
CASE NUMBER Plaintiffs and Appellants,) 2d Civil
C 63814 | ) No. 43913
es A MOTION PICTURE FILM ENTITLED "DEEP ) (Sup.Ct.
THROAT" (35 mm. Color, English Sound ) No. C
Tract); VANGUARD FILMS, INC.; GERARD ) 63814)
DAMIANO a.k.a. JERRY GERARD; LOUIS )
PERAINO a.k.a. LOU PERRY; GERARD )
ORDER OF DISMISSAL
Good cause appearing therefor, the above
entitled action is hereby dismissed under the ' DAMIANO FILM PRODUCTIONS, INC.; PHIL )
provisions of Section 581.3 of the Code of A PARISI; AQUARIUS RELEASING CO., INC.;)
si TERRY LEVINE; PUSSYCAT THEATRES, )
Civil Procedure as to defendants Pussycat Theatres, INC.; VINCENT MIRANDA; FRANK N. SELT~)
Inc.; Vincent Miranda; Frank N. Seltzer; Walter ZER; WALTER SELTZER; GEORGE GLASS;
; JAY FINEBERG; JACK CHAZAN; WALNUT
Seltzer; George Glass; Jay Fineberg; Jack Chazan;
Walnut Properties, Inc.; Bette Lou Ledford; a
PROPERTIES, INC.; ERNEST RICORD;
BETTE LOU LEDFORD; ROBERT MATTIAS;
JIM JOHNSON; PUSSYCAT HOLLYWOOD;
Robert Mattias; Jim Johnson; Pussycat Hollywood
and Pussycat Hollywood Theater on the Complaint
of John Harmer and Raymond P. Gauer, only.
PUSSYCAT (HOLLYWOOD) THEATRE; DOES 1
through 1l,
Defendants and Respondents.
me eee eee ee ee
It is further ordered that the above-named
defendants have and recover costs against plain- APPEAL from orders of the Superior
tiffs John Harmer and Raymond P. Gauer, only Court of Los Angeles County. David A. Thomas,
in the sum of Judge. Affirmed.
DATED: September 21, 1973 i) James J. Clancy for Plaintiffs and
David A. Thomas
Judge
Appellants.
Fleishman, McDaniel, Brown & Weston
A-16
and David M. Brown for Defendants and Respon-
dents.
Plaintiffs originally brought this
action to enjoin the further showing of the
motion picture "Deep Throat" by defendant Pussy-
cat Hollywood Theatre (Pussycat) on the ground
that the performances constitute a public nui-
sance and are violative of the California Red
Light Abatement Law (Pen. Code, § 11225, et
seq.). The trial court sustained a demurrer
to the complaint against all three plaintiffs —
without leave to amend as to Harmer and Gaver,
and granting 30 days leave to amend as to Maior-
ino and thereafter entered order dismissing
the complaint as to Harmer and Gauer (8 581,
subd. 3, Code Civ. Proc.). Earlier the trial
court had entered order denying preliminary
injunction. Although the notice of appeal
states that all three plaintiffs appeal from
both orders, we do not consider Maiorino to
be a party to the appeal from the order of
dismissal.2/
l/ Although the court file does not con-
tain any amended complaint by Maiorino, neither
does it contain any judgment or order of dismiss-
al in respect to him.
Defendants Vanguard Films, Inc.,
A-17
On March 27, 1975, this cour” affirmed
both orders. Thereafter plaintiffs’ petition for
hearing before the California Supreme Court was
granted. Subsequently, the Supreme Court trans-
ferred the cause to this court for reconsideration
in the light of People ex rel. Busch v. Projection
Roam Theater, 17 Cal. 3d 42. While Busch requires
reformulation of our earlier opinion, careful
consideration of that case reveals it to be sup-
portive of the result reached therein.
ORDER OF DISMISSAL
First cause of action re public nuisance.
The allegations, all non-conclusionary
portions of which we accept as true, aver: Plain-
tiffs (Harmer and Gauer) reside "in near proximity"
to the Pussycat, which is located at 7734 Santa
Monica Boulevard, Hollywood, and Gauer's place
of business, 5670 Wilshire Boulevard, is in "near
proximity” thereto. Defendant Pussycat Theatres,
Inc., is a corporation of which Fineberg is
president and Miranda secretary, and Miranda,
the Seltzers and Glass are shareholders; and
Gerard Damiano a.k.a. Jerry Gerard, Louis Peraino
a.k.a. Lou Perry, Gerard Damiano Film Productions,
Inc., Phil Parisi, Aquarius Releasing Co., Inc.,
Terry Levine and Ernest Ricord did not demur. The
record does not reveal whether any were served
with process or became parties to this action.
A-18
the corporation "is deriving substantial revenues
from the operation of" the Pussycat, and is
Miranda's alter ego. Defendant Chazan is the
record owner of the real property on which the
Pussycat is located; defendant Walnut Properties
is a corporation of which Miranda and Ledford
are directors, and Mattias and Johnson "managers
and overseers," and which corporation "is deri-
ving substantial revenues from the operation
of" the Pussycat, and is also Miranda's alter
ego. Defendant Pussycat Hollywood is a corpora-
tion of which Miranda is president and Frank
Seltzer secretary, which corporation "is deriving
substantial revenues from the operation of"
the Pussycat, and is Miranda's alter ego.
Commencing November 30, 1972, and
continuously thereafter, to and including the
filing date of the complaint (August 3, 1973),
"certain of the defendants" caused daily adver-
tising of the film "Deep Throat" to be placed
in the newspapers in the City of Los Angeles,
and commencing on or about November 30, 1972,
"Defendants have exhibited and are exhibiting
publicly the aforementioned motion picture film
at the Pussycat. ... "; an accurate time and
motion study of "Deep Throat" is provided as
an exhibit, and the subject matter of the film
is “unlawful and contraband being obscene and
A-19
a public nuisance under both state and federal
laws" (italics ours); the film "(1) taken as
a whole appeals to a prurient interest in sex,
(2) portrays in a patently offensive way sexual
conduct . . . demonstrated by the following visual
depictions. . . ." (thereafter follows a list
of various acts, including multiple references
to cunnilingus, sexual intercourse, sodomy,
fellatio and masturbation); "the near proximity
of such public nuisances to Plaintiffs' residences,
places of business, and play areas of their minor
children establishes the same as a private nui-
Sance as to each of the Plaintiffs and their
minor children. Special injury and damages have
been and will be suffered by Plaintiffs from
such exhibitions of 'Deep Throat'"; (thereafter
follow averments of "Shame, embarrassment and
emotional distress" and subjection to "the at-
traction of criminal elements, undesirables,
deviates, dropouts from society and immoral
persons into the areas; the decrease in value
of real property . . . erosion of the public
morality of the local commmity .. . the higher
probability of an increase in sexual promiscuity,
venereal disease, divorce and illegitimate births
among the members of the commmity, the attrac-
tion of similar unsavory and unwholesate busi-
nesses"; a deprivation of plaintiffs’ and their
A-20
minor children's civil rights and special damages
in the form of the expenses in time and money
for bringing this action); "Each and all of
the foregoing acts and conduct in the use of
Defendants’ property, for the purposes and
in the manner aforesaid, interferes with the
tranquility, peace and quiet, generally, of
Plaintiffs and the citizens in nearby commmnity;
constitutes a wilful, malicious, unlawful,
unwarranted and unreasonable use of Defendants’
property to the extreme annoyance, disturbance,
discomfort and harm of Plaintiffs, and is detri-
mental to the public good and to the common
welfare; such acts are offensive to public
decency, morals, peace and health and constitute
nuisances which should forthwith be enjoined
and abated." Plaintiffs pray that such nuisance
be forthwith abated and enjoined; and "an account-
ing be made of all box office receipts at the
Pussycat . . . and the same forfeited to the
County of Los Angeles as contraband."
Second cause of action re Red Light Abatement
Law violation.
The foregoing allegations in the
first cause of action concerning the advertising
of “Deep Throat," a time and motion study of
the film, the various sexual acts observed
and that the movie is obscene, are repeated.
A-21
Additionally it is alleged: "Each and all of
the foregoing acts and conduct in the use of
Defendants’ property, for the purposes and in
the manner aforesaid, interferes with the tran-
quility, peace and quiet, generally of Plaintiffs
and citizens in nearby community; constitutes
a wilful, malicious, unlawful, unwarranted and
unreasonable use of Defendants’ property to the
extreme annoyance, disturbance, discomfort and
harm of Plaintiffs, and it is detrimental to the
public good and to the common welfare; such acts
are offensive to public decency, morals, peace
and health, and constitute nuisances which should
forthwith be enjoined and abated." Plaintiffs
pray “That the Court order a forfeiture of the
leasehold interest for one year as is mandated
by Penal Code Section 11230, or such lesser
period as is authorized by Penal Code Section
11232"; defendants be enjoined from "possessing,
advertising, or exhibiting the motion picture
film "Deep Throat'"; and an accounting be made
of the box office receipts and the same forfeited
to the County of Los Angeles as contraband.
We quickly dispose of the second cause
of action. As they must, plaintiffs agree that
People ex rel. Busch v. Projection Room Theater,
17 Cal. 3d 42, squarely decides the issue. That
case holds that the provisions of the Red Light
A-22 A-23
Abatement Law "were not intended to apply, 3480 provides: "A public nuisance is one which
and do not apply, to the exhibition of obscene ee affects at the same time an entire community or
magazines and films." (17 Cal. 3d at p. 62.) | neighborhood, or any considerable number of per-
As to the first cause of action, sons, although the extent of the annoyance or
which pleads that the showing of “Deep Throat" damage inflicted upon individuals may be unequal."
constitutes a public nuisance (under. section e°@ _ In relation thereto it is settled that a private
3480, Civil Code) which plaintiffs, as private citizen fails to plead a cause of action to en-
citizens seek to enjoin and abate ,*/ section join a public nuisance unless he avers special
Py a ila aa ele injury to himself of a kind different from that
aintiffs in their opening brief state , , ,
they “seek herein to establish the lawful right suffered by the general public. In City Store
of a citizen of this state to maintain in a v. San Jose - Los Gatos etc. Co., 150 Cal. 277
civil action to abate, as a public nuisance: : , : , ‘
(1) a hard-core, pornographic motion picture the Supreme Court said, in construing section
film ("Deep Throat') which is now, has been and 3493 and sustaining a judgment of dismissal fol-
is about to be exhibited on the screen of a i | , ™ , o
public theatre in the County of Appellants’ lowing a demurrer sustained with leave to amend
residence, and (2) the building or place where (plaintiff declined to amend), "In order, there-
said film is being exhibited.” , :
fore, to warrant the maintenance of an action
Although the first cause of action by a private individual to abate or restrain
contains express averments that plaintiffs were ee ; , ; a
also the victims of a private nuisance (in a the construction of a public nuisance, it is
degree sufficient to permit them to bring this not enough to allege that injury has been or
action to enjoin the public nuisance under sec- , . , aa ae
tion 3493, Civil Code) they concede that their will be sustained by him thereby, but it is es-
cause of action is brought "as individuals resid- sential that it appear by proper allegations
ing in Los Angeles County." The trial court, oe in ¢ ;
after an evidentiary hearing and consideration the complaint, to be supported by proof upon
of memoranda of fact and law addressed specifi- the trial, that this injury, is or will be,
cally to this issue expressly requested by it,
found there to be insufficient special injury
special in character to him -- that is, that
to constitute a private nuisance. Because there such injury will not only be greater in degree,
was substantial evidence in support of this ee a
determination, we regard these allegations as but will be different in kind fram that sustained
constituting mere legal conclusions which we by the public generally." (P. 279.) In Venuto
are not compelled to accept as true. , .
v. Qwens-Corning Fiberglass Corp., 22 Cal.App.
A-24
3d 116, in affirming judgment of dismissal
following the sustaining of a demurrer without
leave to amend, the court said at pp. 123-124:
"The remedies against a public nuisance, i.e.,
the redress for the wrong to the community,
are by indictment or information, a civil
action, or abatement. (Civ. Code, 8 3491.)
Adverting specifically to the remedy by way
of a civil action, since this is the remedy
with which we are here concerned, we apprehend
the law of this state to be that such action
is ordinarily properly left to the appointed
representative of the community and may be
maintained by a private person only if the
public nuisance is specially injurious to him.
(Court's italics.) (Civ. Code, § 3493; see
Code Civ. Proc., § 731; amd see Prosser on
Torts (3d ed.) at p. 608.) Section 3493 of
the Civil Code specifically provides that ‘A
private person may maintain an action for a
public nuisance, if it is specially injurious
to himself, but not otherwise." (Italics added.)
The genesis of this rule is found in the conmon
law which recognized that ‘the action would
lie if the plaintiff could show that he had
suffered special damage over and above the
ordinary damage caused to the public at large
by the nuisance.’ (Prosser on Torts (3d ed.)
.
.
,
:
€
ee
A-25
at p. 608.)
"In applying the rule articulated in
section 3493 to a particular case, cognizance
must be taken as to whether the public nuisance
alleged is also a private nuisance, since this
factor is important in determining how the statute
is to be applied. The difference becomes impor-
tant in view of the fundamental principle that
a private nuisance is a civil wrong based on
disturbance of rights in land while a public
nuisance is not dependent upon a disturbance of
rights in land but upon an interference with the
rights of the commmity at large. (Prosser on
Torts (3d ed.) at p. 594.)
"Where the nuisance alleged is not also
a private nuisance as to a private individual
he does not have a cause of action on account
of a public nuisance unless he alleges facts
showing special injury to himself in person or
property of a character different in kind from
that suffered by the general public. (Court's
italics.) (Citations.) Under this rule the
requirement is that the plaintiff's damage be
different in kind, rather than in degree, from
that shared by the general public. (Citations.)"
Plaintiffs’ inability to state the
requisite special injury to themselves is most
apparent when they characterize defendants’
A-26
activities as constituting a "moral nuisance."
On the one hand they argue that where a moral
nuisance per se is established as a matter
of law, injury and harm to the general public
are conclusively presumed. While that may be
true, there is still lacking the special injury
which would enable plaintiffs to seek abatement.
On the other hand plaintiffs ask that we sub-
stitute for the statutory requirement of special
injury only the necessity that there be a "bona
fide adversarial dispute." However, on this
matter the Legislature has already spoken in
Civil Code section 3493.7/
In our previous opinion we stated
3/ Plaintiffs also ask us to adopt the
dissent in Harmer v. Tonylyn Productions, Inc.,
23 Cal.App. 3d 941 which declares that: "The
« « « allegations of the complaint (essentially
the same as those here) are sufficient to satisfy
pleading requirements with respect to the
element of special injury which is essential
to establish appellants' capacity to maintain
the action under Civil Code section 3493."
(P. 949.) We note that the cause at bench has
been before us on three prior occasions on
petitions for writ of mandate, each of which
was denied; and that the Supreme Court denied
petition for hearing following denial on the
third petition. We decline to follow plaintiffs'
suggestion that we adopt their position under
the guise of "judicial activism and judicial
legislation."
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A-27
that nowhere do we find support for the proposi-
tion "that private persons similarly situated
to plaintiffs here may initiate and prosecute
actions to enjoin the showing of obscene motion
pictures as nuisances, at least without direct
Collaboration with public authorities." (Emphasis
added.) We believe this same idea to be implicit
in the Supreme Court's latest ruling on the sub-
ject: "Once a community through its public offi-
Cials has determined that a particular display
Of obscene materials amounts to a public nuisance
which is injurious to the safety and morals of
that community, no valid reason exists why, ade-
quate constitutional procedural safeguards being
met, the remedy of civil abatement proceedings
must be denied such community." (Emphasis added.)
(People ex rel. Busch v. Projection Room Theater,
17 Cal. 3d 42 at p. 55; see Venuto v. Owens-~
Corning Fiberglass Corp., 22 Cal.App. 3d 116,
123.)4/
4/ Plaintiffs’ own citation of authorities
from other jurisdictions is of little assistance
to them. The cases typically name as plaintiff
one or more public officials. To the extent that
these cases might support the proposition that
in the absence of special injury and without
direct collaboration with public authorities an
individual has standing to seek abatement as a
nuisance of the public display of an obscene
film, we are not bound thereby inasmuch as the
(Footnote continued on next page.)
A-28
We are not insensitive to plaintiff's
quandary. They have witnessed the transformation
of a pleasant residential neighborhood into
what fairly can be described as a center of
commercialized sex. There is no doubt that
the inhabitants of the area view this as an
unwelcome change; and it is not difficult to
believe that the effects of this transformation
are felt in neighboring areas and, in sare
sense, throughout the city as a whole. Paradoxi-
cally it is the very scope of the alleged harm
that ultimately prevents plaintiffs from being
able to state a cause of action. Commendably,
plaintiffs have sought the aid of the law in
dealing with what they see as a pervasive problem;
there is no doubt in their minds that the
law has been found wanting; however, the law
is eminently capable of change. In recent
years many legislatures have evidenced a growing
Willingness to confront pornography in its
many forms, but this court cannot legislate
nor can it reinterpret a law already authoritatively
construed. Should the time now have arrived
when the statutory requirement of special injury
involved statutes differ from the California
code sections here at issue. (Grolemund v.
Cafferata, 17 Cal. 2d 679, 688; Estate of Riccomi
185 Cal. 458, 463; Bachman v. Independence
Indemnity Co., 112 Cal.App. 465, 482.)
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A-29
is to be read out of the law because of an alleg-
ation of moral nuisance, that pronouncement, with
its potentially grave constitutional ramifica-
tions, must come from our Supreme Court.
ORDER DENYING PRELIMINARY INJUNCTION
On September 4, 1973, the trial court
entered its minute order stating "The motion for
preliminary injunction and for forfeiture (of
the box office receipts) is denied.” All three
plaintiffs have included this order in their no-
tice of appeal. Because thereafter on September
21, 1973, the trial court entered its order of
dismissal based on its determination that the
complaint and each of its counts does not state
a cause of action, which adjudication we have
affirmed, the propriety of the earlier denial
of injunctive relief is thereby established as
a matter of law. Nevertheless, even without the
subsequent dismissal we would have been required
to affirm the trial court's order of September
4, under the settled rule that "'(T)he granting
or denial of a preliminary injunction on a veri-
fied complaint, together with oral testimony or
affidavits, even though the evidence with respect
to the absolute right therefor may be conflicting,
rests in the sound discretion of the trial court,
and that the order may not be interfered with
On appeal, except for an abuse of discretion.’
A-30
(Citation.)" (Weingand v. Atlantic Sav. &
Loan Assn., 1 Cal. 3d 806, 820; Continental
Banking Co. v. Katz, 68 Cal. 2d 512, 527.)
(And see U.S. Hertz, Inc. v. Niobrara Farms,
41 Cal.App. 3d 68, 79.)
During their first oral argument
before this court plaintiffs urged that the
trial court abused its discretion, at least
in denying Maiorino's motion for preliminary
injunction, predicating their position on
his testimony that the Pussycat Theatre is
located "350 feet from the corner" where the
home which he owns and in which he resides
is situated. They contended that even if
Maiorino had not shown any particular injury
suffered by him different in kind from the
general public, >/ the mere proximity of his
5/ We have carefully reviewed Maiorino's
testimony and the only showing of particular
injury we find therein is that patrons of
the Pussycat had at times deposited litter "with
the Pink Pussycat label on it, cartons of Dixie
Cups, soda and pop that they purchased at the,
Pussycat Theater. .. .", on his property.
However, there was no demonstration that this
would not have occurred had the Pussycat shown
exclusively G-rated films; and pleintiffs have
not urged that the closing of the Pussycat --
rather than the invocation of some procedure
less violative of the First Amendment safeguards
to insure that the theater's patrons control
their litter -- was compelled on this ground.
A-31
real property to the site of the public nuisance
was sufficient in and of itself, to compel the
court to grant the preliminary injunction, citing
Venuto v. Owens-Corning Fiberglass Corp., 22 Cal.
App. 3d 116. We find nothing in Venuto to support
the theory that mere proximity of a plaintiff's
real property to the situs of a public nuisance
is sufficient to compel the trial court to grant
injunctive relief abating the nuisance.
We agree that the necessary special
injury may arise out of close proximity to a
public nuisance; indeed plaintiff Maiorino con-
sistently was granted leave to amend his complaint
because of the fact of his ownership of property
Maiorino also testified that he was “embarrassed
by the presence of that film fare" in his neigh-
borhood; the advertising sign on the theater was
“offensive” to him; and "we don't even invite
friends and associates to our house any more,
because it is -- its just an unsavory neighbor-
hood." But his further testimony, particularly
on cross-examination, disclosed that he personally
had never seen the film, and his overall "“embar-
rassment" also stemmed from the presence in the
area of a substantial number of other sex-oriented
businesses of various types, all but two of which
had commenced operation years before the initial
showing of “Deep Throat". He testified that he
had paid $19,700 for his home; but he also said
that a house next door (we assume similar in
value) had just sold for $25,000.
A-32
near the Pussycat Theatre. However, neither
the cases cited by plaintiffs (Fisher v. Zum
walt, 128 Cal. 493, and Wade v. Campbell,
200 Cal.App. 2d 547), nor similar cases to
the same effect hold that mere proximity to
a public nuisance translates into special
injury. Properly understood, these cases
indicate that proximity to a public nuisance
may be a condition enabling a plaintiff to
demonstrate that an injury to the public is
special as to him, not that proximity necessarily
entails such special injury.
The orders are affirmed.
LILLIE, J.
WOOD, P.J.
THOMPSON, J.
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A-33
CLERK'S OFFICE, SUPREME COURT
4250 STATE BUILDING
SAN FRANcisco, CALIFORNIA 94102
—_—+£p3—1977
I have this day filed Order
HEARING DEED
Respectfully,
G. E. BISHEL
Clerk
48703-6877 9.76 3m OSPF
APPENDIX B
Unreported opinion of the Court
of Appeal, Second Appellate
District, Division 3, in
Harmer, et al. v. "The
Devil in Miss Jones, et al.,
a [UP 6 © 6 © 6 6 ee le B-l1 - B-21
Order of the California Supreme Court
dated November 12, 197€ denying
the petition for hearing. . B-22
|
@ @
@°@
@ ]
'
:
B-1
NOT FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN HARMER, RAYMOND P. GAUER, )
RICHARD WALTON, )
Plaintiffs and Appellants,) 2d Civil No.
Vv. ) 43778
A MOTION PICTURE FILM ENTITLED ) (Sup. Ct.
“THE DEVIL IN MISS JONES,” et ) No. C 63815)
al., )
Defendants and Respondents. )
)
APPEAL from a judgment of the Superior
Court of Los Angeles County. David A. Thomas,
Judge. Reversed.
James J. Clancy, for Plaintiffs and
Appellants.
Miller, Glassman & Browning, Inc., and
Anthony Michael Glassman; and Willard M. Reisz,
for Defendants and Respondents.
Plaintiffs appeal from a judgment of
dismissal after defendants’ general demurrer was
sustained without leave to amend. The conplaint
contains five causes of action and the sole
ground of demurrer to each cause of action was
failure to state sufficient facts to constitute
a cause of action. As its title and prayer in-
dicate, the complaint seeks to maintain a private
Suit in equity to abate public nuisances and a
B-2
declaratory judgment action. It is 73 pages
in length (increased to 123 pages by exhibits)
and it seeks relief against (1) a motion picture
entitled "The Devil In Miss Jones," (2) a
variety of persons who allegedly produced
and released it for exhibition in the County
of Los Angeles, (3) the operators of four
so-called "adult" theatres currently and con-
tinuously exhibiting the film, and (4) persmms
having interests in the real property upon
which the said theatres are located.
The first cause of action is directed
at the motion picture itself and seeks to
abate it as a public nuisance and to obtain
a declaratory judgment that it is obscene
matter. The motion picture is described in
the complaint, in time and motion studies
and in a continuity attached thereto, in a
manner which (assuming such descriptions are
accurate, as the demurrer admits) establishes
that it is hard-core pornography and is obscere.
The second through fifth causes of
action, respectively, are directed against each
of the four theatres allegedly advertising and
publicly exhibiting the subject film. They
ask for the abatement of the theatres being
so conducted as public nuisances under the
general nuisance law (Civ. Code, 88 3479, 3480)
@ @
B-3
and pursuant to the provisions of the Red Light
Abatement Law (Pen. Code, 88 11225-11235), as
well as for declaratory relief as to the status
of the property and the abscenity of the film.
The exhibition of the motion picture
at each of these theatres is alleged to have
been going on continuously for a period of several
weeks during which the operators consistently
advertised the theatres as purveyors of the
"Tops in First Run Adult fntertainment, Always."
To support the standing of the various
plaintiffs to maintain a private suit to abate
the film itself and the four theatres' exhibition
thereof as a public nuisance, the complaint
alleges that plaintiff Harmer is a State Senator
representing a legislative district in Los Angeles
County and that he resides in such county and
"in near proximity" to each of the four theatres
exhibiting the film. The locations of the theatres
are set forth: (1) on La Cienega Boulevard
in Hollywood, (2) on Hollywood Boulevard in
Hollywood, (3) on Wilshire Boulevard in Santa
Monica, and (4) on Ventura Boulevard in Tarzana,
all within the County of Los Angeles. The remair-
ing plaintiffs are similarly alleged to be
"residing in near proximity” to the said four
theatres. In addition, in paragraphs 32 and
33 of the complaint, plaintiffs allege the
B-4
conclusion that "the near proximity of such
public nuisances to (their) residences, places
of business, and play areas of their minor
children establishes the same as a private
nuisance as to each of the Plaintiffs and their
minor children." Further "(s)pecial injury
and damages" are alleged consisting of plain-
tiffs being offended, outraged, shamed and
embarrassed by the daily exhibition and adver-
tisement of pornography in their community
and being “subjected to the direct and indirect
consequences" of such activity including the
attraction of criminal elements, decrease in
value of real property, erosion of public morality,
higher probability of sexual promiscuity and
venereal disease, divorce and illegitimate
births among members of the community, and
the attraction of similar unsavory and unwhole-
some businesses thereto.
In addition, with respect to causes
of action two through five, plaintiffs base
their standing to sue upon the provisions of
Penal Code section 11226, authorizing any citi-
zen residing within the county to sue for the
abatement of a “place used for the purpose
of . . . lewdness."
The trial court sustained the general
demurrer to each of the five causes of action
B-5
on the authority of Harmer v. Tonylyn Productions,
Inc., 23 Cal.App. 3d 941, which it construed
as foreclosing plaintiffs from showing that the
continuous exhibition of a motion picture film,
however obscene, in a closed theatre to which
only consenting adults were admitted either (1)
was a public nuisance under sections 3479 and
3480 of the Civil Code, or (2) made the theatre
in which such exhibition occurred a "place used
for the purpose of .. . lewdness, assignation,
or prostitution,” under Penal Code section 11225.
For this reason the court did not pass upon the
sufficiency of the allegations of paragraphs
32 and 33 of the complaint to show plaintiffs'
Standing to maintain a private suit to abate
a public nuisance as persons specially injurea.+/
Plaintiffs contend in a 127-page brief
that Harmer v. Tonylyn, supra, should be over-
ruled or distinguished and that they have alleged
l/ The Court said in this respect:
as . » This paragraph 33 becomes sig-
nificant only if we first decide that the matter
is -- I first decide that the showing is a public
nuisance, after which we would go to the second
issue of determining whether the particular defen-
dant (sic) can show that special injury which
allows him to abate privately a public nuisance;
but because we never get beyond the first issue,
the pleadings in paragraph 33 are irrelevant.
B-6
facts upon which both the motion picture "The
Devil In Miss Jones" and the theatres exhibiting
it may be found to be public nuisances subject
to abatement by their suit as persons specially
injured. Respondents are content to rely
upon the Harmer case and have filed a single
six-page brief asserting its applicability
and continued vitality. The basic issue presented
by this appeal is, therefore, the effect of
the decision in Harmer upon plaintiffs' claim
that the motion picture and the exhibition
of it in defendants’ theatres constitute a
public nuisance under the provisions of sections
3479 and 3480 of the Civil Code and section
370 of the Penal Code, and upon plaintiffs'
contention that the exhibition of the said
picture in defendants’ theatres makes them
places “used for the purpose of . . . lewiness,
assignation, or prostitution," under section
11225 et seq. of the Penal Code.
The first such question has already
‘been disposed of by our Supreme Court in People
ex rel. Busch v. Projection Room Theater,
17 Cal. 3d 42. In Busch, the court held that
complaints containing allegations that the
defendant adult theatres were exhibiting on
a continuous basis obscene motion pictures,
which allegedly constituted public nuisances,
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PEE OE Ra SLE eo
B-7
brought by the District Attorney and City Attor-
ney, were sufficient to survive general demurrers
for failure to state causes of action. For
reasons more fully stated in the opinion in
that matter, our Supreme Court disapproved Harmer
in this respect, stating "there is no overriding
principle of law which precludes the states
from regulating the exhibition of obscene matter
by application of their public nuisance statutes."
(17 Cal. 3d at p.55.) There is no need in this
unpublished opinion to repeat what was said
in Busch. It is sufficient to state that, as
applied to this case, that decision compels
the conclusion that the allegations of the com
plaint herein are sufficient to describe activity
constituting a public nuisance. Consequently,
the basis upon which the trial court sustained
the demurrers without leave to amend did not
justify that ruling.
The decision in Busch, however, estab-
lishes merely that a public nuisance is sufficiently
alleged. The plaintiffs in that case were the
District Attorney and City Attorney and, as
such, were authorized to bring actions to abate
public nuisances. The plaintiffs in this case,
however, have no such status, and in order to
state a cause of action to abate a public nui-
sance, they are required to show that they are
persons who are specially injured:
"A private person may maintain an
action for a public nuisance, if it is
specially injurious to himself, byt not
otherwise." (Civ. Code, 8 3493.)—
In the instant case, plaintiffs’
allegations of purported special injury, above
described, are also inadequate to meet the
requirements for the maintenance of a private
Suit to enjoin a public nuisance. By claiming
that all of the plaintiffs reside in "near
proximity" to all four theatres, the locations
of which are alleged to be separated by as
much as 15 miles, plaintiffs reveal that the
character of their injury by reason of “proximity”
is no different than that suffered by the
population of Los Angeles County in general.
The other allegations of outrage, embarrassment
and shame, the consequences of the attraction
of undesirables, general decrease in values,
erosion of morality, and the attraction of
other immoral activities also clearly describe
injury no different in character than that
suffered by the general public.
2/ In Busch, Harmer was not disapproved in-
sofar as it held that "plaintiff (private citizens)
had failed to allege the necessary special damages
requisite to bringing a public nuisance action
(see Civ. Code, § 3493) this casting doubt upon
his status as a litigant." (17 Cal. 3d at p. 52.)
,
B-9
Such injury is not special injury just-
ifying departure from the policy of this state
which leaves the enforcement of the nuisance
law in the hands of the public prosecutor in the
local community. A recent statement of this
policy is contained in Venuto v. Owens-Corning
Fiberglass Corp., 22 Cal.App. 3d 116. In that
case a plaintiff claiming special injury from
air pollution, by virtue of his preexisting
allergies and respiratory disorders, was held
not to have standing to sue. The court said (at
pp. 123-124):
"The remedies against a public nuisance,
i.e., the redress for the wrong to the
cammnity, are by indictment or information,
a civil action, or abatement. (Civ. Code,
§ 3491.) Adverting specifically to the
remedy by way of a civil action, since this
is the remedy with which we are here con-
cerned, we apprehend the law of this state
to be that such action is ordinarily properly
left to the appointed represent
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