Appendix — California v. Abogado Lucero

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Text

| NOV 8 1993

No. |

fi} Gr | 1" rj mes

United States Supreme Coun——--

October Term 1993

93-7270) Frere

State of California,

Petitioner

Jose Ronillo Abogado LUCERO,

Jimmie JOHNSON,

WALNUT PROPERTIES, INC.,

a California Corporation,

Respondents.

ee” aw we See wee Ww we Wwe Ge Ww ww

Petition for Writ of Certiorari to the California Court

of Appeal, Second Appellate District, Division Seven

v v v Vv v v v v v v

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

- a - - - * a a a +

LONG BEACH CITY PROSECUTOR

John A. Vander Lans

City Prosecutor

Robert R. Recknagel

Assistant City Prosecutor

Gerry L. Ensley

Deputy City Prosecutor

400 West Broadway, Room 207

Long Beach, California 90802

Telephone: (310) 437-0711

No.

United States Supreme Court

October Term 1993

State of California,

Petitioner.

Jose Ronillo Abogado LUCERO,

Jimmie JOHNSON,

WALNUT PROPERTIES, INC.,

a California Corporation,

Respondents.

Ne ee eee ee ee ee ee

Petition for Writ of Certiorari to the California Court

of Appeal, Second Appellate District, Division Seven

v v Vv v v v v v v v

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

” ” 2 2 a « a ~ 4 a

LONG BEACH CITY PROSECUTOR

John A. Vander Lans

City Prosecutor

Robert R. Recknagel

Assistant City Prosecutor

Gerry L. Ensley

Deputy City Prosecutor

400 West Broadway, Room 207

Long Beach, California 90802

Telephone: (310) 437-0711

INDEX TO APPENDICES

Appendix # Page

APPENDIX # 1

(Lucero 1)

People v. Superior Court (Lucero)

(1989) 49 Cal.3d 14

(259 Cal.Rptr. 740, 774 P.2d 769] ee 4")

APPENDIX # 2

(Lucero Il)

Lucero v. Municipal Court (People)

(1993) 15 Cal.App.4th 784

[19 Cal. Rptr.2d 143]--"depublished"

by order of the California Supreme

Court August 12, 1993 40

APPENDIX # 3

Order of California Supreme

Court, August 12, 1993, denying

hearing and “depublishing"

Lucero Il .. 62

APPENDIX # 4

Respondents’ original

Petition for Writ of Prohibition

and/or Mandate in Lucero | .. . 64

APPENDIX # 5

Judgment for Peremptory

Writ of Mandate 79

APPENDIX # 6

Respondents’ Request for

Attorney's Fees pursuant to

42 U.S.C. § 1988, commencing

Lucero Il 84

TABLE OF AUTHORITIES

Authority Page

Aday v. Superior Court, 55 Cal.2d 789, 13 Cal Rptr. 415

Ci) rer 107

Aday v. United States, 338 U.S. 447, 87 S.Ct. 2095

(AGET) ow oc nk hs eens eee 107

Alberts v. California [Roth v. United States], 345 U.S.

476, 77 S.Ct. 1304 (1957) ......---- +--+ ee: 106

Alegret v. Arnebergh, Civ. No. 70-170-ALS (C.D. Cal.

(GIO) oon ne heen es 6 ene eee 110

Austin v. Kentucky; [Redrup v. New York], 386 U.S. 757,

67 6 Ct 1044 (1G)... 6 ee ree 106

Barrows v. Municipal Court, 1 Cal.3d 821, 83 Cal.Rptr.

SHG... eee ee 108

Barrows v. Reddin, 301 F.Supp. 575 (C.D. Cal. 1971)

I er 109

Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423 (1971) 106

Board of Airport Commissioners v. Jews for Jesus, INC.,

482 U.S. S69 (1087) ... .- cs aes 120

Bonnes v. Long (4th Cir. 1979) 599 F.2d 1316 .. 93

Books. Inc. v. United States, 388 U.S. 449, 87 S.Ct.

2006 (1067) .. ec cn ee 107

Brandon v. Holt (1985) 469 US. 464, 471-472, 105

S.Ct. 873, 877-878, 83 L.Ed.2d 878 54

Burton v. Municipal Court, 68 Cal.2d 684, 68 Cai Rptr

721 (1968) 8, 107

Burton v. Municipal Court, 68 Cal.2d 856, 16 Cal. Rptr

889 (1961) 107

California Ass'n of the Physically Handicapped, Inc_v

FCC, 742 F.2d 667 (9th Cir. 1983) 111

California Ass'n of the Physically Handicapped, Inv_v

FCC, 778 F.2d 823 (D.C. Cir. 1985) 111

California Paralyzed Veterans Ass'n v. FCC, 496

F Supp. 125 (C.D. Cal. 1980) 111

California v. Walnut Properties. Inc, 106 S Ct. 230

(1985) 72

Carlisle v. Landon, 73 S.Ct. 1179 (Douglas, Circuit

Justice, 1953) 106

Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir

1985) 121

Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1980), affd

sub. nom. Widmar v. Vincent, 454 U.S. 263 (1981)123

Christy v. City of Ann Arbor (6th Cir. 1987) 824 F.2d

489 certiorari denied (1988) --- U.S. ---, 108 S.Ct. 1013,

98 L.Ed.2d 978 29-30

Cinema Classics Ltd _v. Busch, 339 F.Supp. 43 (C.D

Cal.) 109

Clayton v. McDonnell-Dougias Corp., 584 F 2d 980 (9th

Cir. 1978) 119

CLR [Corp.] v. Henline [6th Cir. 1983] 702 F.2d [637] at

639 29

Corinth Publications, Inc v. Wesberry, 388 U.S. 448, 87

S Ct. 2096 (1967) 107

Corsican Productions v. Pitchess, 388 F.2d 441 (9th Cir

1964) 108

Crawford v. Board of Educatior 458 US. 527 (1982)

152

Daniels v. McKinney (1983) 146 Cal App.3d 42, 193

Cal.Rptr. 842 60

Davis v. Cinema Classic, Ltd, 409 U S 807, 93 S.Ct

105 (1972) 109

Door v. Pitchess, No. 63-15-PH (C.D. Cal 1963) 109

Edwards v. Maryland State Fair & Agric Soc'y, 628 F.2d

282 (4th Cir. 1980) 121

E| Patio v. Permanent Rent Control Bd., 110 Cal. App

3d 915. 168 Cal. Rptr. 276 (1980) 122

Elysium. Inc. v. Olesen, No §3-385-PH (C.D. Cal

1963) 109

EWAP. Inc. v. City of Ontario, 177 Cal. App. 3d 1108,

1115-18. 223 Cal. Rptr. 422, 427-30 (1986) 96

Felton v. Pensacola, 390 U.S. 340, 88 S.Ct. 1098

ee erence lta arale aia: 107

Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981),

cert. dismissed, 458 U.S. 1124 (1982) ....... 121

Filipino Accountants’ Ass'n v. State Bd. of Accountancy,

155 Cal. App. 3d 1023, 1031, 204 Cal. Rptr. 913, 917

SAR cn Ps Senerer ny Singing em Nw ure ayn paar 92

Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal.Rptr.

RT Par gr ON ure tn Oo men Nats 108

Friends of Westwood v. City of Los Angeles, 191 Cal

App 3d 259, 235 Cal. Rptr. 788 (1987) ....... 122

Grant v. United States, 280 F.2d 748 (9th Cir. 1967)

Greater Los Angeles Council on Deafness v. Zolin, 607

F Supp. 175 (C.D. Cai. 1984), affd in part, rev'd in part,

Bitz F.20 1103 (9m Cw. 1967) ............. 122

Green v. Obledo, 161 Cal. App 3d 678, 683, 207 Cal.

or oe ete oe ee 97

Greer v. Holt (6th Cir.1983) 718 F.2d 206...... 56

Haldeman v. United States, 340 F.2d 59 (10th Cir.

er ote ene sic oe ans Cea eae 108

Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887

PR heh NTS oy es oo CE he Pei 106

Heffron v.__International Soc'y for Krishna

Consciousness, 452 U.S. 640 (1981) ......-- 121

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76

t Ed.2d 40 (1963) ..... Fete eet: 48, 95, 100

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281 (1975)

Dee Re ye ee a eee ee eS 106

Holy Spirit Ass'n for the Unification of World Christianity

v. Alley, 604 F.2d 669 (5th Cir. 1979) ....-.--- 121

Hutto v. Finney (1978) 437 U.S. 678, 98 S.Ct. 2565, 57

ee ie ce ee tee 50-51, 54-55, 57

imbler v. Pachtman (1976) 424 U.S. 409, 95 S.Ct. 984,

ee ee ee RE ig eg es ee ee saa 50

in re Head (1986) 42 Cal.3d 223, 228 Cal.Rptr. 184.

6 i ed ok OE 59-60

in re Lousiana News Co., 187 F.Supp. 241 (E.D. La.

Se. wats oc Ben tei an oany agin reo 109

Unification Church v. INS, 762 F.2d 1077 (D.C. Cir.

SS eee ee ee 121

international Oceanic Enterprises v. Menton, 614 F.2d

502 (Sth Cir. 1960) .....------ secret 121

International Soc'y for Krishna Consciousness _v. Air

Canada, 727 F.2d 253 (2d Cir. ee eee 121

vil

International Soc'y for Krishna Consciousness v. Bowen,

600 F.2d 667 (7th Cir.), cert. denied, 444 U.S. 963

oa, ne nnn ee 122

International Soc'y for Krisnna Consciousness v. Collins,

Gun F260 to) (oe) Ge. 4eee) 646s ok 121

International Soc'y for Krishna Consciousness v. Lee,

100 F.4D. 430 (6.0.8.7: 1964) 2 ws: . ta

International Woodworkers Local 3-98 v. Doncvan, 769

F.2d 1388, 1392 (9th Cir. 1985) ....... eas Wee

James v. Marinship Corp., 25 Cal. 2d 721, 155 P.2d

61044). Se... Peo.

Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680

(1973) .. ay eu 106

Kentucky v. Graham (1985) 473 U.S. 159, 167, 105

Soin. gues, auo, OF LEGze1l4 ........... BB

Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir.

1960) (Kino it)... ... we ee ee 110

Kling v. County of Los Angeles, 769 F.2d 532 (9th Cir.

1985) (Kling Il), rev'd, No. 85-295 (U.S. Nov. 4, 1985)

A RN aa ae ES Deere Ate ene ee

Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d

369, 376, 181 Cal.Rptr.1 ........... 3, 31 35-36

Larson v. Valente, 456 U.S. 228 (1982) ...... 121

vill

LeBaron v. Olesen, 125 F.Supp. 53 (S.D. Cal. 1954)

| Lezama v. Justice Court (1987) 190 Cal.App. 3d 15, 24,

| at A i i a en ene 56

Luros v. United States, 490 F.2d 76 (5th Cir. 1974)109

McMahon v. Lopez, 199 Cal. App. 3d 829, 836, 245

Cael, Wael. 0, Fae CTR) 0 ee wk as 93

Morongo Band of Mission Indians v. California State

Board of Equalization, 858 F.2d 1376 (9th Cir. 1988)

Newman v. Piggie Park Enterprises, Inc..390 U.S. 400,

402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)57, 93

Olney v. Municipal Court (1982) 133 Cal.App.3d 455,

TU I TO gb ew ee ee we es 60

Oreson v. Standard, 227 F.2d 785 (9th Cir. 1955) 108

Ower v. City of Independence (1980) 445 U.S. 622, 100

OGL 1996, GOLEG2Z0G7S .... 1. we cea, 50

Palmigiano v. Garrahy, 707 F.2d 636 (1st Cir. 1983)

Patterson v. Municipal Court (1965) 232 Cal.App.2d

ie, Se COLO. 168... i i ee i a kc bu 52

People v. Rossi, 81 Cal.3d 295, 134 Cal.Rptr. 64 (1976)

People v. Superior Court (Lucero) (1989) 49 Cal.3d 14,

27, 259 Cal.Rptr. 740, 774 P.2d 769 .... 46, 91, 96

People v. Walnut Properties, Inc.. No CRA 16846 (Cal.

Super. Ct. App. Dep't July 1, 1980). .......... 70

People v. Walnut Properties, Inc., No. CRA 21481 (Cal.

Super. Ct. App. Dep't Mar. 18,1985) ........ 71

Perkins v. Cross (8th Cir.1984) 728 F.2d 1099 . 56

Perlman v. Municipai Court (People), 88 Cal. App. 3d

568, 160 Cal. Rptr. 567 (1979)............ 122

Pomerantz v. County of Los Angeles, 674 F.2d 1288

Pons 1008) kc cc ccc 411

Press v. Lucky Stores Inc., 34 Cal. 3d 311, 322, 667

P.2d 704, 710, 193 Cal. Rptr. 900, 906 (1983) .. 98

Pringle v. City of Covina (1981) 115 Cal.App.3d 151,

170 GE. wot... . 3, 10, 24, 35, 43, 66, 69

Quantity of Copies of Books v. Kansas, 378 U.S. 205.

Oe OG. Thao (1964)... ew es 106-107

Quantity of Copies Books v. Kansas, 388 U.S. 452, 87

Mmm OUP UME). ee ke wk 108

Quantity of Copies of Books v. State, 191 Kan. 13, 379

eS aa err . 108

Rabeck v. New York, 391 U.S. 462, 88 S.Ct. 1716

es ees ees 107

Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41,

55, fn. 4, 106 S.Ct. 925, 933, fn. 4, 89 L.Ed.2d 29

EE ge aE de 4, 12-13, 14-16, 18, 25-26, 29, 34

Rescue Army v. Municipal Court (1946) 28 Cal.2d 460,

I 52

Riddle v. National Democratic Party (5th Cir. 1980) 624

I re 93

Riley v. National Fed'n of the Blind, 108 S.Ct. 2267

a ee

Rizzi v. Blount, 305 F.Supp. 634 (C.D. Cal. 1969) 110

Rose v. United States Postal Serv. 725 F.2d Adv. Sh.

| rr 111

Roth v. United States (1957) 354 US. 476, 487, 77

S.Ct. 1304, 1310, 1 L.Ed.2d 1498 fn. omitted. 27, 106

Schad v. Mount Ephraim (1981) 452 U.S. 61, 69-70,

101 S.Ct. 2176, 2183-2184, 68 LEd2d671 .... 29

Secretary of State v. Joseph H. Munson Co., 467 U.S.

ey wk ne ke ee 123

Serrano v. Unruh (Serrano IV)., 32 Cal. 3d 621, 643,

652, P.2d 985, 999, 186 Cal. Rptr. 754, 76@7+982)101

Shea _v. Board of Medical Examiners (1978) 81

Cal.App.3d 564, 574, 146 Cal.Rptr.653.) ...... 18

Smith v. California, 361 U.S. 147, 80 S.Ct. 215 (1959)

sokolow v. County of San Mateo, 213 Cal. App. 3d 231,

242, 261 Cal. Rptr. 520, 529 (1989) ........ 95-96

Spiritual Psychic Science Church of Truth v. City of

Azusa, 39 Cal. 3d 501, 703 P.2d 1119, 217 Cal. Rptr.

Bee Ct ee ee ee ee 122

Stanard v. Olesen, 74 S.Ct. 768 (Douglas, Circuit

ee SE ee ee ee ee eee 107

State v, Jackson, 224 Ore. 337 ............ 108

Steiner v. Hocke, 272 F.2d 384 (9th Cir. 1959) . 108

Strand Property Corp. v. Municipal Court (1983) 148

Cal.App.3d 882, 889, 200 Cal. Rptr.3 731-32, 35-37, 43

Supreme Court of Virginia v. Consumers Union of the

United States, Inc. (1980) 446 US. 719, 100 S.Ct.

me er ae ene ane A ee 51

Texas State Teachers Assn. v. Garland Independent

School Dist. (1989) 489 U.S. 782, 109 S.Ct. 1486, 103

S + 5 RRA RN ont pe rte Ra BT es 47

Tiernan v. Trustees of the Cal. State Univ. & Colleges,

33 Cal. 3d 211, 188 Cal. Rptr. 115 (1982) .... 122

xii

Toberoff v. Summerfield, 245 F.2d 360 (9th Cir. 1957);

256 F.2d (9th Cir. 1958) ........------+-> 108

Tollis. Inc. v. San Bernardino County (9th Cir.1987) 827

fo) eee re eee 6, 15-16, 34

Town of Islip v. Caviglia (1988) 141 A.D.2d 148, 151, fn.

2. 532 N.Y.S.2d 783, 784-785, fn. 2.) ....------ =

United States v. Arno, No. CR 70-224 (D. Ariz. 1971).

United States v. Bloom, No. 7144-WJF

ee Mat WO ee es 109

United States v. Frew, 187 F.Supp. 500 (E.D. Mich.

se es ee ae ee 109

United States v. Frew/Laning, Crim. No. 39414 (ED).

ee | ne er a re i 109

United States v. Linetsky, Crim. No 39798

eo es 109

United States v. Thirty-Seven Photographs, 402 US.

363, 91 S.Ct. 1400 (1971) .......----- eee. 106

Village of Schaumburg v. Citizens for a_ Better

Environment, 44 U.S. 620 (1980) .........-.-. 123

Walker v. Weaner, 624 F.2d 60 (8th Cir. 1980) . 121

xiii

Walnut Properties v. City Council of the City of Long

Beach (1980) 100 Cal.App.3d 1018, 1024, 161 Cal.Rptr.

rh 7, 43

Walnut Properties v. Ussery (Cal.App.) .... 5, 44, 73

Welton v. City of Los Angeles (1976) 18 Cal.3d 497,

506, 134 Cal.Rptr. 668,556 P.2d1119........ 18

Westfall v. Board of Commr's., 477 F. Supp. 862 (N.D.

Ga. 1978)... ... cs ee 122

Westside Community for Independent Living v. Obledo,

33 Cal.3d 348, 188 Cal.Rptr. 873 ........... 111

Williams v. United States, 704 F.2d 1162 (9th Cir. 1983)

Wilson v. Stocker (10th Cir.1987) 819 F.2d 943 . 58

Young v. American Mini Theaters, Inc. (1976) 427 US.

50, 96 S.Ct. 2440, 49 L.Ed.2d 310.

ls ety eee 2, 4, 7-9, 10-12, 15-16, 18-19, 25-28

xiv

APPENDIX # 1

(Lucero 1)

People v. Superior Court (Lucero)

(1989) 49 Cal.3d 14

(259 Cal.Rptr 740. 774 P.2d 769]

259 Cal.Rptr. 740 (Cal. 1989)

774 P.2d 769

49 Cal.3d 14

The PEOPLE, Petitioner

The SUPERIOR COURT of Los Angeles

County, Respondent:

Jose Ronillo Abogado LUCERO et al.,

Real Parties in Interest.

No. $002438.

Supreme Court of California.

June 29, 1989.

Rehearing Denied Aug. 24, 1989.

People sought writ of mandate to compel

Superior Court to vacate judgment which had granted

peremptory writ of mandate directing municipal court to

sustain demurrers to charge of violation of adult theater

zoning ordinance. The Court of Appeal, 244 Cal.Rptr.

502, denied request for writ of mandate. Review was

granted, superseding opinion of court of Appeal. The

Supreme Court, Lucas, C.J., held that: (1) ordinance

would not be constitutional if interpreted to apply to a

single use of a theater for showing adult films, but (2)

ordinance was constitutional if applied to a regular and

substantial course of conduct.

Affirmed.

Mosk, J., filed an opinion concurring in part and

dissenting in part.

Kennard, J., filed an opinion concurring in part

and dissenting in part in which Broussard, J., joined.

LUCAS, Chief Justice.

This case involves the enforcement of a Long

Beach zoning ordinance that prohibits the location of

“adult entertainment businesses" (including adult motion

picture theaters) within 500 feet of residential areas, or

1,000 feet of public schools or churches (Long Beach

Mun. Code, ch. 21.51, hereafter Chapter 21.51). The

ordinance is described as a "non-cluster” or "Anti-skid

Row" ordinance because it is designed to discourage

development of a "skid row" area by limiting the harmful

secondary effects of adult entertainment businesses on

adjacent areas, and by insuring such businesses do not

contribute to the blighting of surrounding neighborhoods.

(See Chapter 21.51.010, "Purpose.") It was patterned

after a Detroit adult entertainment zoning ordinance

upheld in Young v. American Mini Theaters, Inc. (1976) 427

U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.

The question before us concerns the appropriate

constitutional standard by which to define the "use"

necessary to make a movie theater an "adult motion

picture theater" within the meaning of the ordinance.’ In

Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171

Cal.Rptr. 251 the Court of Appeal held that an adult

entertainment zoning ordinance cannot be enforced

against an adult motion picture theater unless a

"preponderance" (meaning "more often than not") of the

"adult" films shown by the establishment have as their

dominant theme the depiction of the ordinance’s

enumerated sexual activities.

In following Pringle, subsequent cases interpreting

adult entertainment ordinances have required "use" to be

defined as "over 50 percent." (Strand Property Corp. v.

Municipal Court (1983) 148 Cal.App.3d 882, 889, 200

Cal. Rptr. 47 [construing "use" defined under the ordinance

as a substantial or significant portion of the total

presentation time to mean a "preponderance" that must be

defined as "over 50 percent"]; Kuhns v. Board of

Supervisors (1982) 128 Cal.App.3d 369, 376, 181 Cal.Rptr.

1 [construing "use" defined as a "substantial or significant

portion of stock in trade" in adult bookstore ordinance to

mean "over half of a bookstore’s stock"].) Moreover, the

present Court of Appeal believed the People were bound

by Pringle’s preponderance standard. (Post, at p. 742-743

of 259 Cal.Rptr., at p. 771-772 of 774 P.2d) We disagree.

As we explain, although municipalities are free to adopt

such a test in defining "use" under an adult entertainment

' The ordinance defines an adult motion

picture theater as "an enclosed building with a

capacity of fifty or more persons used for

7 material distinguished or characterized

y their emphasis on matter depicting, describing

or relating to specified sexual activities or

specified anatomical areas for observation by

patrons therein.” (Chapter 21.51, § 21.51.020,

subd. (A)(2).) Chapter 21.51 is set forth in the

appendix.

ordinance, we conclude Pringle’s preponderance standard

in not constitutionally compelled. In place of such a test,

we adopt a constitutional standard similar to that recently

approved by the United Stated Supreme Court and

several state courts: cities may zone the location of

theaters that show, on a regular basis, films characterized

by an emphasis on the "specified anatomical areas”

identified in the ordinance, where such films constitute a

substantial portion of the films shown or account for a

substantial part of the revenues derived from the

exhibition of films (hereafter "the regular and substantial

course of conduct" standard). (See, e.g., Renton v.

Playtime Theatres, Inc. (1986) 475 US. 41, 55, fn. 4, 106

S.Ct. 925, 933, fn. 4, 89 L.Ed.2d 29; Young, supra, 427

U.S. at p. 59, 96 S.Ct. at p. 2447; see also Jown of Islip v.

Caviglia (1988) 141 A.D.2d 148, 151, fn. 2, 532 N.Y.S.2d

783, 784-785, fn. 2.)

1. Facts

Real parties in interest Jose Ronillo Abogado

Lucero, Walnut Properties, Inc., and Jimmie Johnson

(hereafter real parties were charged in_ separate

misdemeanor complaints with numerous counts of

unlawfully establishing an adult entertainment business in

violation of Chapter 21.51.

Real parties’ establishment, the Lakewood Theater,

has two screens: one screen shows general release films

and one screen shows adult films. Each count of the

misdemeanor complaints specifically alleged real parties

unlawfully established an adult theater in violation of

Chapter 21.51 by exhibiting an X-rated movie on a

particular day within the distances proscribed by the

ordinance.

Real parties filed demurrers to the complaints on

the ground that exhibition of a single adult film, as alleged

in the complaints, did not make the theater an adult

entertainment business under the preponderance standard

established by Pringle, supra, 115 Cal.App.3d 151, 171

Cal.Rptr. 251. After the municipal court overruled the

demurrers, real parties petitioned the superior court for

a peremptory writ of mandate directing the lower court to

sustain the demurrers. The supenor court granted the

writ with leave to amend. The People declined to amend

and instead requested the Court of Appeal to issue a writ

of mandate to compel the superior court to vacate its

judgment.

[1] The Court of Appeal denied the writ and

rejected the People’s contention that a single showing of

an adult film makes the theater an adult motion picture

theater within the meaning of the zoning ordinance. The

court first reyected the People’s argument that the "single

use" standard adopted by the Court of Appeal in Walnut

Properties v. Ussery (Cal.App.)’ should control the

outcome of the present litigation under the law of the

case and collateral estoppel doctrines.’

. We ordered the opinion not published in

the Official Reports by order dated June 24, 1986

(B005781).

5 The Ussery case involved the same

parties, theater and ordinance as in the present

case. The court in Ussery observed that the only

way to prevent the undesirable effects of adult

theaters on the surrounding neighborhoods, and to

implement the zoning ordinance according to the

intent of its drafters, was to prohibit any use of

the theater for showing adult motion pictures.

In rejecting the People’s law-of-the-case and

collateral estoppel arguments, the Court of Appeal

observed, "(t]he cases before us are criminal ones

Next, in rejecting the People’s contention that a

"single use" standard should apply, the Court of Appeal

cited with approval Tollis, Inc. v. San Bernardino County

(9th Cir.1987) 827 F.2d 1329, which held that a "single

use" interpretation of an adult entertainment zoning

ordinance was unconstitutional in the absence of evidence

"that a single showing of an adult movie would have any

harmful secondary effects on the community." (Id. at p.

1333.) The Court of Appeal then denied the People’s

petition for writ of mandate because the complaints "did

not allege, in accordance with the requirements of Pringle,

that the preponderance of films exhibited and observed by

patrons at the Lakewood Theatre were ‘distinguished or

characterized by their emphasis on matter depicting,

describing or relating to specified sexual activities oF

specific anatomical areas’ (Chapter 21.51.020(A) . . .) as

those terms are defined in Chapter 21.51.020(B)(1-7) and

instituted well after Ussery, a civil case, became

final. Because the criminal cases presently before

us and Ussery are not the ‘same case’ the doctrine

of law of the case does not apply." We agree. We

also agree with the Court of Appeal’s decision not

to apply the collateral estoppel doctrine to

defendants. First, it is highly questionable

whether a prior determination against a party in a

civil action may be applied as a collateral

estoppel against that same party in a criminal

action. (See Ashe v. Swenson (1970) 397 U.S. 436, 90

S.Ct. 1189, 25 L.Ed.2d 469.) In addition, as the

Court of Appeal observed: "(I]f Ussery were given

collateral estoppel effect in this case the single

instance standard would apply to Lakewood Theater

and the preponderance standard enunciated in Pringle

(115 Cal.App.3d 151, 171 Cal.Rptr. 251] which is

the only published decision on this issue would

apply to all other theaters. Such a result would

clearly be unjust and would disserve the public

interest. (See Consumers Lobby Against Monopolies v. Public

Utils. Com. (1979) 25 Cal.3d 891, 902 {160 Cal.Rptr.

124, 603 P.2d 41].)"

(C)(1-2) of the Long Beach Municipal Code.) In

reviewing the Court of Appeal opinion, we examine the

People’s argument requesting we affirm as constitutionally

permissible a "single use" standard.

II. Background

A. Constitutionality of adult entertainment

zoning

In August 1977 Walnut Properties, Inc. (hereafter

Walnut) obtained a business license to operate a motion

picture theater on the representation that it intended to

exhibit nonadult films. (Walnut Properties v. City Council

of the City of Long Beach (1980) 100 Cal.App.3d 1018,

1024, 161 Cal.Rptr. 411.) In November of that year,

following the high court’s decision in Young, supra, 427

U.S. 50, 96 S.Ct. 2440, the city enacted Municipal Code

Chapter 9120.41, which was amended in 1979 to become

Chapter 21.51, the ordinance at issue in the present case.

The 1979 ordinance is substantially similar to the 1977

version -- its primary purpose being to regulate the

location of adult motion picture theaters. After the

ordinance was passed Walnut began showing adult films.

In December 1977, shortly after Walnut opened its

theater, the Long Beach City Council instituted

proceedings culminating in the revocation of Walnut’s

operating license. Walnut sued the city, challenging the

constitutionality of the ordinance. (Walnui Properties,

supra, 100 Cal.App.3d at p. 1020, 161 Cal.Rptr. 411.)

After conceding that its theater was an "adult

entertainment business" as defined by the ordinance,

Walnut argued the ordinance violated the First

Amendment's freedom of speech clause as an

unconstitutional regulation of constitutionally protected

conduct. In addition, Walnut claimed that the ordinance

was vague, overbroad and vested public officials with

impermissible discretion to enforce its terms. (Id. at p.

1021. 161 Cal.Rptr. 411; see, e.g., Burton v. Municipal

Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d

281.) The ordinance survived constitutional scrutiny,

however, after the Court of Appeal found Young, supra,

427 U.S. 50, 96 S.Ct. 2440, dispositive of the constitutional

issues. (Walnut Properties, supra, 100 Cal.App.3d at p.

1023, 161 Cal.Rptr. 411.)

[2] | The two Detroit ordinances at issue in

Young were termed "Anti-skid Row’ ordinances because

they prohibited (except where a special waiver was

obtained) locating adult theaters and adult bookstores

with 1,000 feet of any two other "regulated uses" or within

500 feet of any residential zone. The ordinances’

definition of an “adult motion picture theater" was

identical to that of the Long Beach ordinance we discuss

here. (Young, supra, 427 U.S. at pp. 53-54, fn. 5, 96 S.Ct.

at pp. 2444-2445, fn. 5.)

The plurality, led by Justice Stevens, upheld the

ordinances on the basis they were not directed at

restricting speech, but rather were reasonable time, place

and manner regulations necessary to further the city’s

significant interest in preserving the character of its

neighborhoods. The Young court concluded that as long

as such ordinances were enacted to regulate the location -

of adult theaters in order to protect neighborhoods from

deterioration, increased crime and other harmful

secondary effects, they did not offend either the First

Amendment or the Equal Protection Clause of the

Fourteenth Amendment. (Young, supra, 427 U.S. 50, 68-

73, 96 S.Ct. 2440, 2451-2454; see Developments in the Law

-- Zoning (1978) 91 Harv.L.Rev. 1427, 1557-1559.)*

Based on the high court’s reasoning in Young,

supra, 427 U.S. 50, 96 S.Ct. 2440, the Walnut Properties

Court of Appeal rejected Walnut’s First Amendment

; The Young court noted that under the

ordinances “adult films may only be exhibited

commercially in licensed theaters.) (Young, supra,

427 U.S. at p. 62, 96 S.Ct. at p. 2448.) The court

observed, however, that the "city’s general zoning

laws require all motion picture theaters to satisfy

certain locational as well as other requirements;

we have no doubt that the municipality may control

the location of theaters as well as the location of

other commercial establishments, either by

confining them to certain specific commercial zones

or by requiring that they be dispersed throughout

the city. The mere fact that the commercial

exploitation of material protected by the First

Amendment is subject to zoning and other licensing

requirements is not a_ sufficient reason for

invalidating these ordinances.” (Ibid. )

The Young court also rejected the theater

owner's vagueness attack on the ordinances on the

basis that "Neither respondent . . . alleged any

basis for claiming or anticipating any waiver of

the restriction as applied to its theater."

Siem £ supra, 427 U.S. at p. 59, 96 S.Ct. at p.

2447 The court observed that "the only vagueness

in the ordinances related to the amount of sexually

explicit activity that may be portrayed before the

material can be said to be ‘characterized by an

emphasis’ on such matter. For most films the

question will be readily answerable; to the extent

that an area of doubt exists, we see no reason why

the ordinances are not ‘readily subject to a

narrowing construction by the state court’s

[W}e think this is an inappropriate case in which

to adjudicate the hypothetical claims of persons

not before the Court." (Id. at p. 61, 96 S.Ct. at

p. 2448.)

Finally, the court held that the Detroit

ordinance created no “significant deterrent effect"

that would justify invocation of the First

Amendment “overbreadth” doctrine. (Young, supra,

427 U.S. at pp. 59-60, 96 S.Ct. at pp. 2446-2447.)

argument. The court reasoned, "It is clearly within the

power of the City to provide that no motion picture

theatre can be operated in a residential area or near a

public school. The thrust of Justice Stevens’ opinion in

Young was that it was also within the City’s power to

classify theatres according to the content of the films

exhibited, so long as that classification has a reasonable

basis. The ‘adult entertainment’ classification is a

reasonable one. [{|] Walnut has presented no evidence

that the City’s ordinance in any way restricts or eliminates

the access to the ‘adult entertainment’ for those persons

who desire to patronize it. In fact, Walnut operates

another such theater in a different part of the City. From

records which we may judicially notice, it appears that

Long Beach has a number of ‘adult’ forms of

entertainment operating within its boundaries." (Walnut

Properties, supra, 100 Cal.App.3d 1018, 1023, 161

Cal.Rptr. 411.)

B. Pringle's "preponderance" standard

In Pringle, supra, 115 Cal.App.3d 151, 171

Cal.Rptr. 251, the City of Covina had enacted a "non-

cluster" zoning ordinance prohibiting location of adult

entertainment theaters within 500 feet of residential and

other enumerated areas. The ordinance employed a

Substantially similar definition of an adult theater as the

Long Beach ordinance we review herein. (Post, at fn. 1;

see Covina Mun.Code, § 17.04.026.2.) The ordinance

declared its purpose was "to insure that adverse effects

[arising from the "serious objectionable operational

characteristics" of adult theaters] will not contribute to the

blighting or downgrading of the surrounding

neighborhood and will not unreasonably interfere with or

injure nearby properties.” (Id. at p. 154, 171 Cal.Rptr.

251, quoting from Covina Mun.Code, § 17.04.026.2.)

The plaintiffs, a neighborhood theater owner and

a patron, instituted an action for declaratory and

injunctive relief "alleging that the ordinance violated

federal and state guarantees of freedom of speech, due

process and equal protection. They claimed that the

ordinance was unconstitutional on its face and, as

construed to apply ’to the operation of a neighborhood

theater which shows a variety of films including a few

films which, although not obscene, explicitly depict sexual

activity arguable within the scope of the ordinance.’ They

further argued that the terms ‘distinguished or

characterized by an emphasis’ and ‘used’ were too vague

and chilled freedom of expression." (Pringle, supra, 115

Cal.App.3d at p. 155, 171 Cal.Rptr. 251.) The defendant

city argued that the ordinance was valid under Young,

supra, 427 U.S. 50, 96 S.Ct. 2440, and asserted that the

term "use" should be construed as meaning "[o]jne

showing of a film described in the ordinance." (Pringle,

supra, 115 Cal.App.3d at p. 156, 171 Cal.Rptr. 251.)

The Pringle court recognized that it was faced "with

an actual, not hypothetical, claim of uncertainty deterring

the exercise of protected speech" (115 Cal.App. 3d at p.

160, 171 Cal.Rptr. 251), and that it was bound to construe

the legislation "if reasonably possible to preserve its

constitutionality." The court first construed the

ordinance’s applicability regarding the dominant or

essential theme of the movie. (At p. 160, 171 Cal.Rptr.

251.) It concluded that "adult films under the ordinance

include only films whose dominant or predominant

character and theme is the depiction of the enumerated

sexual activities or anatomical areas." (Ibid.)

Next, the court determined that the word "used" in

the “ordinance’s definition of an adult theater as a

building ‘used for presenting’ sexually explicit material"

rendered the ordinance vague -- and_ hence

constitutionally infirm -- because it failed to indicate "what

proportion of a theatre’s programming would constitute

‘use.’" (Pringle court defined "use" under the ordinance to

mean ‘to practice customarily," but qualified the phrase to

mean "more often than not." Based on the foregoing, the

court adopted a "preponderance" standard. (Id. at p. 162,

171 Cal.Rptr. 251.)

... Post- Young federal cases

Two federal decisions decided after Young, supra,

427 U.S. 50, 96 S.Ct. 2440, and Pringle, supra, 115

Cal.App.3d 151, 171 Cal.Rptr. 251, shed further light on

the interpretation of language similar to that at issue here.

Both involved constitutional challenges to adult

entertainment zoning ordinances similar to the one

examined by the court in Young.

In Renton v. Playtime Theatres, Inc., supra, 475 U.S.

41, 106 S.Ct. 925, two theater operators whose theaters

exhibited adult films and were located within an area

proscribed by adult entertainment zoning restrictions

challenged the Renton ordinance under the First and

Fourteenth Amendments. The high court determined that

the ordinance was a valid "time, place and manner"

measure because it did "not ban adult theaters altogether,

but merely provide[d] that such theaters [could] not be

located within 1,000 feet of any residential zone, single- or

multiple-family dwelling, church, park, or school." (Id. at

p. 46, 106 S.Ct. at p. 928.) Next, while recognizing that

the Renton ordinance treated "theaters that specialize in

adult films differently from other kinds of theaters" (id. at

p. 47, 106 S.Ct. at p. 929), the court observed that the

regulation "was unrelated to the suppression of free

expression" because it did not proscribe the content of the

films, but rather was concerned predominately with the

deleterious secondary effects of adult theaters on the

neighboring community. (Ibid.)

In concluding that the ordinance was "designed to

serve a substantial government interest and allow(ed] for

reasonable alternative avenues of communication,” the

Renton court stated that the city’s substantial interest in

preserving “the quality of urban life’ justified the

enactment. (Renton, supra, 475 U.S. at p. 50, 106 S.Ct. at

p. 930.) Moreover, the court observed that it was

appropriate for Renton to have relied on relevant studies

conducted by other cities on the need for zoning controls

of adult theaters in order to establish its "substantial

government interest" in regulating adult theaters. (Id. pp.

51-52, 106 S.Ct. at pp. 930-931.)°

: The Renton court specifically stated

that "Renton was entitled to rely on_ the

experiences of Seattle and other cities, and in

particular on the ‘detailed findings’ summarized in

the Washington Supreme Court’s Northend Cinema

[Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153

(1978)] opinion, in enacting its adult theater

zoning ordinance. The First Amendment does not

require a city, before enacting such an ordinance,

to conduct new studies or produce evidence

independent of that already generated by other

cities, so long as whatever evidence the city

relies upon is reasonably believed to be relevant

to the problem that the city addresses." (Id. 475

U.S. at pp. 50-52, 106 S.Ct. at pp. 930-931.)

Finally, the court observed that the method

chosen by a city to further its substantial

interests -- e.g., cluster as opposed to noncluster

zoning -- would not affect its holding. The court

noted that "cities may regulate adult theaters by

dispersing them, as in Detroit, or by effectively

concentrating them, as in Renton, ‘It is not our

The court further noted that the Renton ordinance

left approximately 520 acres open to use as potential adult

theater locations. Accordingly, the court determined the

ordinance would allow "for reasonable alternative avenues

of communication."® (Renton, supra, 475 U.S. at p. 53, 106

S.Ct. at p. 932.) Thus, the court concluded, the ordinance

represented a valid governmental response to the serious

problems created by adult theaters and met the goals of

the city in preserving the quality of life within the

community while "satisfying the dictates of the First

Amendment." (Id. at pp. 54-55, 16 S.Ct. at pp. 932-933.)

Thereafter, in 1987, an operator of an adult motion

picture establishment challenged, in federal court, the

constitutionality of a San Bernardino County ordinance

similar in language and substance to the "Anti-skid Row"

function to appraise the wisdom of [the city’s]

decision to require adult theaters to be separated

rather than concentrated in the same areas cca

[T]he city must be allowed a reasonable opportunity

to experiment with solutions to admittedly serious

problems.’" (Id. at p. 52, 106 S.Ct. at p. 931,

quoting Young, supra, 427 U.S. at B. 7k, 9% S.Ct.

at p. 2453, original brackets. )

. In response to the theater owner’s

(respondents) argument that there were no

“commercially viable" adult theater sites within

the 520 acres left available by the Renton

ordinance, the court observed that "we have never

Suggested that the First Amendment compels the

Government to ensure that adult theaters, or any

other kinds of speech-related businesses for that

matter, will be able to obtain sites at bargain

prices.

ae In our view, the First Amendment required

only that Renton refrain from effectively denying

respondents a reasonable opportunity to open and

operate an adult theater within the city, and the

ordinance before us easily meets this requirement."

(Renton, supra, 475 U.S. at p. 54, 106 S.Ct. at p. 932.)

ordinances discussed above, with the exception that the

ordinance was silent as to its predominate purpose.

(Tollis, Inc. v. San Bernardino County, supra, 827 F.2d

1329, 1332.) The county argued that the ordinance should

be construed so as to prohibit even a "single showing" of

an adult motion picture. The theater owner responded

that such construction would be unconstitutionally

overbroad on its face under Young, supra, 427 U.S. 50, 96

S.Ct. 2440, and Renton, supra, 475 U.S. 41, 106 S.Ct. 925.

(Tollis, supra, 827 F.2d at p. 1331.)

[3] | The Ninth Circuit agreed with the theater

owner and found that a "single use" standard could not

pass "constitutional muster as a content-neutral time,

place, and manner regulation" because it could not be

justified as serving a substantial governmental interest in

preserving the quality of urban life. (7ollis, supra, 827

F.2d at pp. 1332-1333.) As we explain below, we believe,

like the 7ollis court, that so construed the Long Beach

ordinance would be unconstitutional.

III. A constitutional zoning

standard

Although 7ollis, supra, 827 F.2d 1329, is not

dispositive, we believe it applied the correct constitutional

principal first articulated in Young, supra, 427 U.S. 50, 96

S.Ct. 2440, and developed by Renton, supra, 475 US. 41,

106 S.Ct. 925. As Tollis recognized, Renton required the

court to determine whether the ordinance, as

implemented, is designed to serve a_ substantial

governmental interest and allows for reasonable

alternative avenues of communication. (T7ollis, supra, 827

F.2d at pp. 1332-1333.) Like the Ninth Circuit, we find a

"single use" standard is insufficiently tailored to serve

Long Beach’s stated purpose of preventing the clustering

or concentration of adult motion picture theaters in any

one area. Nothing in the Long Beach ordinance’s

statement of purpose discloses the presence of significant

deleterious effects on the community arising out of a

single showing of an adult film. We also agree with the

Tollis court that a single showing of an adult movie does

not necessarily create the "logical relationship between the

evil feared and the method selected to combat it." (Id. at

pp. 1332-1333.)’

Nor do we believe, however, that Pringle’s

preponderance standard is constitutionally compelled. As

stated above, Pringle would allow the zoning of adult

theaters only if a preponderance (construed to mean

"more often than not" or "most often") of the films shown

have as their dominant theme the depiction of the

ordinance’s enumerated sexual activities. (Pringle, supra,

115 Cal.App.3d at p. 162, 171 Cal.Rptr. 251.) We find

nothing in the high court’s cases suggesting such a

standard is required. Indeed, a preponderance standard

violates the spirit of the high court’s cases. Those

decisions expressly recognize a state’s legitimate interest

in regulating adult entertainment establishments, and

accord local governments substantial discretion in defining

the scope and nature of such regulation. (Young, supra,

427 US. at p. 61, 96 S.Ct. at p. 2448; Renton, supra, 475

U.S. at pp. 51-52, 106 S.Ct. at pp. 930-931.)

7 Real parties argue that if we were to

impose a single use standard in this case, the

procedures for obtaining a waiver would operate as

an invalid prior restraint on theater owners.

Because we reject the "single use" standard as

unconstitutional on other grounds, we need not

consider the merits of this claim.

Accordingly, we conclude that Pringle, in striving to

construe the term "“used" within the confines of

constitutional principles, established a standard that is too

high.*

. The exact basis of the Pringle decision

is not entirely clear. To the extent Pringle may

be interpreted as a constitutional "floor" in the

traditional sense (i.e., that the municipalities

are constitutionally precluded from regulating

theaters showing less than a preponderance of adult

films), we believe it to be inconsistent with the

basic principles of Young and Renton and unduly

restrictive of the municipalities’ legitimate

interest in regulating adult entertainment

establishments. Faen post, fn. 10.) It defies

common sense to hold that a theater exhibiting

(adult" films during less than 51 percent of its

total operating time must be treated as something

other than an adult establishment as that term can

be reasonably understood in this context.

Nonetheless, so long as the theater does not

“preponderantly" or "more often than not” exhibit

adult movies, Pringle’s test allows adult

entertainment theaters to be established in

contravention of the purpose of the ordinance.

Moreover, to the extent Pringle may be

interpreted as an exercise of simple statutory

construction, we find it equally flawed. The

Pringle court correctly noted that vague or

ambiguous terms in a legislation are to be

construed, where possible, so as to preserve their

constitutionality. (Pringle, supra, 115 Cal.App.3d

at p. 160, 171 Cal.Rptr. 251.) In so doing,

however, the court must give the ordinance a

construction which conforms both to the dictates of

the Constitution and to the purposes of the

enactment. Indeed, we believe the “regular and

substantial course of conduct" is a reasonable

interpretation of “use” under the Long Beach

ordinance because it more closely conforms to the

purpose of the ordinance than did Pringle’s

preponderance (over 50%) test. Accordingly, we

must reject Pringle on statutory construction

grounds as well.

The question then becomes whether we can

articulate a constitutional standard that will both

implement the purpose of the ordinance and abide by the

requirements of Young, supra, 427 U.S. 50, 96 S.Ct. 2440,

and Renton, supra, 475 U.S. 41, 106 S.Ct. 925 (i.e., that an

ordinance be content-neutral and narrowly tailored to

minimize only the adverse secondary effects related to

adult entertainment establishments). The Long Beach

ordinance was passed specifically because "[T]he city

council [found] that adult entertainment businesses,

because of their very nature, are recognized as having

objectionable operational characteristics, particularly when

several of them are concentrated under certain

circumstances, thereby having a deleterious effect upon

the adjacent areas. Special locational regulation of these

businesses is necessary to insure that these adverse effects

will not contribute to the blighting or downgrading of the

surrounding neighborhoods. The primary purpose of the

regulation is to prevent the concentration or clustering of

these businesses in any one area." (Long Beach Mun.

Ord. C-5487 § 1 (1979).)

[4] | Because adult entertainment ordinances are

aimed at regulating the clustered establishment of adult

entertainment businesses and not at prohibiting theater

owners from occasionally exhibiting an "adult" film, we

conclude a "regular and substantial course of conduct"

Standard must appropriately defines the constitutional

level of "use" for purposes of such ordinances. In so

doing, we allow cities a greater flexibility in the zoning of

adult entertainment theaters, thereby construing the

ordinance in a constitutional manner while allowing a

reasonable and practical construction in conformity with

the purpose of the enactment. (Welton v. City of Los

Angeles (1976) 18 Cal.3d 497, 506, 134 Cal.Rptr. 668, 556

P.2d 1119; Shea v. Board of Medical Examiners (1978) 81

Cal.App.3d 564, 574, 146 Cal.Rptr. 653.)

By interpreting the term "used" in this case to

mean a “regular and substantial course of conduct," we

give the ordinance a construction that is rationally tailored

to support its asserted purpose of preventing

neighborhood blight without allowing Long Beach to use

"the power to zone as a pretext for suppressing

expression.” (Young, supra, 427 U.S. at p. 84, 96 S.Ct. at

p. 2459.) Under this standard, zoning restrictions such as

contained in the ordinance at issue here would apply to

all adult entertainment theaters offering adult fare as a

substantial part of their regular business, but would not

apply to theaters showing only occasional or incidental

adult movies.” To the extent Pringle, supra, 115

Cal.App.3d 151, 171 Cal.Rptr. 251, conflicts with the

foregoing standard, the case is disapproved."

. We recognize that although our

definition is not exact, it is "reasonably specific

and precise, bearing in mind that unavoidable

imprecision is not fatal and celestial precision is

not necessary." (Hart Book Stores, Inc. v. Edmisten

(4th Cir. 1979) 612 F.2d 821, 833, cert. den.

(1980) 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d

1124.) We emphasize Long Beach is free to further

define the standard -- for example, by making

reference to a percentage of films shown, or the

percentage of revenue received by the adult

entertainment business. It may also amend its

ordinance to impose less restrictive standards.

” As stated above Pringle's

"preponderance" standard has been interpreted in

Court of Appeal cases as requiring the showing of

over 50 percent adult movies before a theater can

be labeled an adult theater: Kuhns v. Board of

Supervisors, supra, 128 Cal.App.3d 369, 376, 181

Cal.Rptr. 1; Strand operty Cor Vv unicipal

Court, supra, 148 Cal.App.3d 882, 889-890, 200

Cal.Rptr. 47. These cases predate Renton, supra,

IV. Disposition

The People, having alleged multiple violations of

Chapter 21.51, section 21.51.030 of the Long Beach

Municipal Code, each based on the unconstitutional

"single use" standard, are not entitled to proceed with the

action as pleaded. Accordingly, the judgment of the

Court of Appeal is affirmed."

PANELLI, EAGLESON and

KAUFMAN, JJ., concur.

APPENDIX

LONG BEACH MUNICIPAL CODE

CHAPTER 21.51

SECTION 21.51.010 PURPOSE.

The city council finds that adult entertainment

businesses because of their very nature, are recognized as

having objectionable operational characteristics,

particularly when several of them are concentrated under

certain circumstances, thereby having a deleterious effect

upon the adjacent areas. Special locational regulation of

475 U.S. 41, 106 S.Ct. 925, and merely rely on

Pringle. To the extent they interpret Pringle as

imposing a constitutional floor, we find they are

no more persuasive than Pringle, supra, and are

likewise disapproved.

" Of course, our disposition does not

preclude the People from prosecuting future

violations of Chapter 21.51 under the "regular and

substantial course of conduct" standard discussed

above.

these businesses is necessary to insure that these adverse

effects will not contribute to the blighting or downgrading

of the surrounding neighborhoods. The primary purpose

of the regulation is to prevent the concentration or

clustering of these businesses in any one area. This

chapter shall be deemed a reenactment of the preexisting

ordinance on this subject matter. (Ord. C-5487 § 1 (part),

1979: prior code § 9120.17(a)).

SECTION 21.51.020 DEFINITIONS.

A. For purposes of this chapter, the adult

entertainment businesses are defined as follows:

ee "Adult motion picture theater" means an

enclosed building with a capacity of fifty or more persons

used for presenting material distinguished or characterized

by their emphasis on matter depicting, describing or

relating to specified sexuai activities or specified

anatomical areas for observation by patrons therein.

B. For purposes of this chapter, "specified

sexual activities" shall include the following:

1. Actual or simulated sexual intercourse, oral

copulation, anal intercourse, oral anal copulation,

bestiality, direct physical stimulation of unclothed genitals,

flagellation or torture in the context of sexual relationship,

or the use of excretory functions in the context of a sexual

relationship, and any of the following depicted sexually

oriented acts or conduct: analingus, buggery, coprophagy,

coprophilia, cunnilingus, fellatio, necrophilia, pederasty,

pedophilia, piquerism, sapphism, zooerasty; or

r Clearly depicted human genitals in a state of

sexual stimulation, arousal or tumescence; or

3. Use of human or animal masturbation,

sodomy, oral copulation, coitus, ejaculation; or

4. Fondling or touching of nude human

genitals, pubic region, buttocks or female breast; or

5. Masochism, erotic or sexually oriented

torture, beating or the infliction of pain; or

6. Erotic or lewd touching, fondling or other

contact with an animal by a human being; or

y 3 Human excretion, urination, menstruation,

vaginal or anal irrigation.

cS For purposes of this chapter, "specified

anatomical areas" shall include the following:

2 Less than completely and opaquely covered

human genitals, pubic region, buttock, and female breast

below a point immediately above the top of the areola;

and

ea Human male genitals in a discernibly turgid

State, even if completely and opaquely covered. (Ord. C-

5487 § 1 (part), 1979: prior code § 9120.17(b)).

SECTION 21.51.030 LOCATION RESTRICTED.

A. In those land use districts where the adult

entertainment businesses regulated by this chapter would

otherwise be permitted uses, it shall be unlawful to

establish any such adult entertainment business if the

location is:

1. Within five hundred feet of any area zoned

for residential use;

a Within one thousand feet of any other adult

entertainment business; or

a Within one thousand feet of any public or

private school, park, playground, public building, church,

any noncommercial establishment operated by a bona fide

religious organization, or any establishment likeiy to be

used by minors.

B. The establishment of any = adult

entertainment business shall include the opening of such

a business as a new business, the relocation of the

business, or the conversion of an existing business location

to any adult entertainment business use. (Ord. C-5487 §

1 (part), 1979: prior code § 9120.17(c)).

SECTION 21.51.040 VARIANCE

A. Any property owner or his authorized agent

may apply for relief from the locational provisions of this

chapter by applying for a standards vanance as provided

in this title. To grant such a request the following

additional findings must be made:

1. That the proposed use will not be contrary

to the public interest or injurious to nearby properties and

that the spirit and intent of this chapter will be observed;

2. That the proposed use will not enlarge or

encourage the development of a skid row area;

3 That the establishment of an additional

regulated use in the area will not be contrary to any

program of neighborhood conservation nor will it interfere

with any program of urban renewal; and

4. That all applicable regulations of the

municipal code will be observed.

B. The procedure for this hearing shall be the

same as that provided for a standards variance in this title.

(Ord. C-5487 § 1 (part), 1979: prior code § 9120.17(d)).

MOSK, Associate Justice, concurring and

dissenting.

I] concur in the judgment.

The majority correctly strike down the "single use"

Standard as unconstitutional. They err, however by

jettisoning the "preponderance" standard in use for the

past eight years and creating an entirely new and vague

"regular and substantial course of conduct" standard. I

therefore dissent from that portion of the opinion.

The majority read the decision of Pringle v. City of

Covina (1981) 115 Cal.App.3d 151, 171 Cal.Rptr. 251, too

broadly; it does not establish the preponderance standard

as the limit of regulatory power for every locality in the

State. Moreover, it is inappropriate to weave a new

standard -- one which apparently is meant to set a

Statewide regulatory floor -- out of whole cloth. To do so

the majority must reach out to decide this issue without

the benefit of a developed record, without the benefit of

briefing, and, most importantly, in contravention of the

spirit of United States Supreme Court decisions that

emphasize the importance of allowing cities to experiment

with various solutions to the serious problems created by

urban blight. (See, e.g., Renton v. Playtime Theatres, Inc.

(1986) 475 U.S. 41, 52, 106 S.Ct. 925, 931, 89 L.Ed.2d 29

(hereafter Renton); Young v. American Mini Theatres (1976)

427 U.S. 50, 71, 96 S.Ct. 2440, 2452-2453, 49 L.Ed.2d 310

(hereafter Young).)

The result is judicial legislating. Creation of the

"regular and substantial course of conduct" standard is

unjustified because we have been presented with no

evidence that the new untested standard would ameliorate

the secondary effects of adult-oriented businesses while

accommodating individuals’ access to communications

protected by the free speech provisions of the federal and

state Constitutions.

Two interests collide when a city undertakes to

pass zoning laws regulating so-called "adult entertainment

businesses": (1) individuals’ night to receive, and owners’

right to convey, nonobscene communication protected by

the state and federal Constitutions, and (2) the city’s

interest in eradicating urban blight. Among the more

serious perceived negative secondary effects of such

entertainment businesses are increased crime, particularly

prostitution, deteriorating neighborhoods, and economic

injury to nearby businesses. (See generally, Developments

in the Law — Zoning (1978) 91 Harv.L.Rev. 1427, 1551

(hereafter Zoning).) No one can doubt that these serious

problems are a legitimate subject of local government

concern. Many cities across the nation are expending

considerable resources to rejuvenate long-neglected

downtown areas. These efforts take a variety of forms:

some cities pass zoning laws that disperse regulated uses

throughout the locality; other zoning laws are aimed at

clustering the uses in limited areas; some cities regulate

the operating hours and storefront advertising of so-called

adult-oriented businesses; still others rely on public

nuisance laws. The Supreme Court has repeatedly

emphasized that courts must allow cities "a reasonable

opportunity to experiment with solutions to [these]

admittedly serious problems.” (Renton, supra, 475 U.S. at

p. 52, 106 S.Ct. at p. 931, quoting Young, supra, 427 US.

at p. 71, 96 S.Ct. at p. 2452 (plur. opn.).)

But courts must also protect individuals’ rights to

freedom of speech, the cornerstone of a democratic

society. The federal Constitution guarantees that

"Congress shall make no law . . . abridging the freedom of

speech ...." (U.S. Const., lst Amend.) The California

Constitution declares the same right in the affirmative:

"Every person may freely speak, write and publish his or

her sentiments on all subjects... .". (Cal.Const., art. I, §

2, subd. (a).) That the communication involved here

pertains to sex does not mean that it deserves less than

full constitutional protection.’ "[Sex and obscenity are not

Some commentators argue that

constitutional protection should be afforded only

to explicitly political speech, and not to

scientific or literary speech. (see, 6.8., Berk,

Neutral Principles and Some First Amendment

Problems (1970) 47 Ind. L.J. 1.) Justice Stevens,

writing for the plurality in Young, suggested that

"erotic materials" were not entitled to the same

measure of constitutional protection as "political

debate." (427 U.S. at pp. 61, 70, 96 S.Ct. at pp.

2448, 2452.) Fortunately, these views have not

prevailed. (Nimmer on Freedom of Speech (1984) §

3.01.) A majority of justices in Young concluded

that nonobscene erotic materials may not be treated

differently under First Amendment principles from

other forms of protected expression. (427 U.S. at

p. 73, fm. 1, 96 S.Ct. at p. 2453, fn. 1 (Powell,

J., concurring), pp. 85-87, 96 S.Ct. at pp. 2459-

synonymous .... The portrayal of sex, e.g., in art,

literature and scientific works, is not itself sufficient

reason to deny material the constitutional protection of

freedom of speech and press. Sex, a great and mysterious

motive force in human life, has indisputably been a

subject of absorbing interest to mankind through the ages;

it is one of the vital problems of human interest and

public concern." (Roth v. United States (1957) 354 US.

476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 fn. omitted.)

These words, although written over three decades ago,

still have relevance today, although to the examples must

be added stage and screen presentations.

Neither of the conflicting interests, the Supreme

Court has explained, is absolute. A city may, under

certain circumstances, pass zoning regulations that impair

the First Amendment rights of theater owners and their

customers. In the seminal Young case, supra, 427 U.S. 50,

96 S.Ct. 2440, a sharply divided court upheld a Detroit

ordinance that prohibited adult theaters from locating

within 1,000 feet of any 2 other "regular uses," such as

motels, liquor stores and adult bookstores, or within 500

feet of a residential area. Preliminarily, the court refused

to consider a vagueness challenge to the ordinance’s

definition of adult motion picture: the plaintiff theater

owners lacked standing to raise the challenge because they

plainly intended to exhibit the type of motion pictures

clearly covered by the definition, i.e., "distinguished or

2461 (Stewart, J., dissenting, joined by Brennan,

Marshall and Blackmun, JJ.).) This latter position

is consonant with the state constitutional dictate

that persons may speak freely "on all subjects."

(Cal.Const., art. I, § 2, subd. (a).) The Oregon

Supreme Court reached the same conclusion in its

colorful opinion in State v. Henry (1987) 302 Or.

3910, 325, 732 P.2€ 9, Ee-ae.

characterized by an emphasis on" on certain listed sexual

activities or anatomical areas. (Id. at p. 59, fn. 16, 96

S.Ct. at p.. 2447, fn. 16.)

Turning to the merits, the court relied on three

factors in rejecting the plaintiffs’ equal protection

challenge. One, the ordinance did not greatly restrict

access to “lawful speech." (Young, supra, 427 U‘S. at p.

71, fn. 35, 96 S.Ct. at p. 2453, fn. 35 (plur. opn.), pp. 77,

79, 96 S.Ct. at pp. 2455, 2456 (conc. opn. of Powell, J.).)

Two, the intent of the city in passing the ordinance was to

ameliorate the negative secondary effects of adult

entertainment businesses, not to suppress "offensive"

speech. (Id. at p. 71, fn. 34, 96 S.Ct. at p. 2453, fn. 34

)plur. opn.), pp. 80-81, 96 S.Ct. at pp. 2457-2458 (conc.

opn. of Powell, J.).) Three, the record disclosed a factual

basis for the city’s conclusion that the type of restriction

it imposed would have the desired effect. (Id. at p. 71, 96

S.Ct. at p. 2452 (plur. opn.), p. 82, 96 S.Ct. at p. 2458

(conc. opn. of Powell, J.).)

In dictum, a majority of this court now create a

new standard that does violence to both free speech

principles and cities’ interest in tailoring zoning

regulations to local circumstances. If the "regular and

substantial course of conduct" standard were adopted by

a legislative body in the same unstudied manner as it is

suggested by the majority, courts would be required to

strike it down because it fails to meet the Young criteria.

Because the case comes to us on demurrer there is no

evidence in the record that the new standard would allow

substantially unimpeded access to protected speech.

Moreover, there is absolutely no factual basis for the

majority’s surmise that a "regular and substantial course of

conduct" standard will substantially assist Long Beach or

any other city to fight urban blight.

In most cases, courts are not required to examine

the legislative record or to inquire into legislator’s motives

when reviewing a statute or ordinance. When the

legislation impairs the right to freedom of speech,

however, "courts should continue to undertake more than

a cursory, deferential examination of the factual bases of

the municipality’s decision. Courts sensitive to the first

amendment issues at stake should insist upon a fairly

complete record of the evidence available to municipal

legislators at the time they acted and of the facts on which

they relied... ." (Zoning, op. cit. supra, 91 Harv.L.Rev.

at p. 1559; see also Schad v. Mount Ephraim (1981) 452

U.S. 61, 69-70, 101 S.Ct. 2176, 2183-2184, 68 L.Ed.2d

671.) In Christy v. City of Ann Arbor (6th Cir. 1987) 824

F.2d 489, certioran denied (1988) US. __, 108S.Ct.

1013, 98 L.Ed.2d 978, the court examined an ordinance

that defined an adult bookstore as an establishment

having as a "principal activity" the sale of books or films

characterized by an emphasis on certain enumerated

sexual activities. "Principal activity" was in turn defined as

a "use accounting for more than 20 per cent of a

business." The court of appeals vacated the district court’s

order denying the plaintiff bookseller’s motion for

preliminary injunction and remanded the case for further

proceedings.

After carefully examining the record, the court of

appeals held, "Although both the Supreme Court in

Renton, 106 S.Ct. at 931, and the Sixth Circuit in CLR

[Corp.] v. Henline [6th Cir. 1983] 702 F.2d [637] at 639,

have stated that a city need not conduct new independent

studies to justify adult business zoning ordinances, both

courts have required some _ relevant evidence to

demonstrate that the zoning ordinance was intended to

address the secondary effects of aduit businesses. The

burden of proof is on the city to show that more than a

rational relationship exists between the ordinance and this

government interest. [Citation.] In the case at hand, the

district court’s opinion notes only that the city ‘has

asserted that its purpose in passing this ordinance is to

prevent the concentration of adult businesses and

resultant urban blight.’ [Citation.] Upon careful review of

the record in this case, we find no such ’assertion,’ nor do

we find any evidence of a legitimate government objective

for the passage of this zoning ordinance." (Christy v. City

of Ann Arbor, supra, 824 F.2d at p. 493, italics added.)

If a legislative body is constitutionally prohibited

from zoning adult entertainment businesses absent

findings that the ordinance is directed to ameliorating

secondary effects, then a fortiori this court may not

"legislate" a new standard absent a record from which it

can be fairly inferred that such a standard will

substantially serve the government objective.

The majority’s incursion into the legislative realm

is as unnecessary as it is mischievous. The majority

complain that "[t]he exact basis of the Pringle decision is

not entirely clear" while suggesting that it sets a

constitutionally based regulatory floor for all localities in

the state, i.e., that no city may constitutionally define an

adult motion picture theater as a building used to exhibit

anything less than 50 percent adult films, no matter what

evidence is presented to the legislative body. (Maj. opn.,

ante, at p. 747, fn. 8 and p. 748, fn. 10 of 259 Cal.Rptr., at

p. 776, fn 8 and p. 777, fn. 10 of 774 P.2d.) To the

contrary, Pringle, supra, 115 Cal.App.3d 151, 171

Cal.Rptr. 251, did not purport to hold that its

preponderance standard represented any sort of

constitutional floor for adult entertainment zoning

ordinances in general or that a local entity was precluded

from adopting any definition of an adult theater that was

more restrictive than the preponderance standard.

Indeed, two Court of Appeal decisions cited by the

majority make this point very clear. In Kuhns v. Board of

Supervisors (1982) 128 Cal.App.3d 369, 181 Cal.Rptr. 1,

decided just one year after Pringle, the Court of Appeal

applied the predominance standard in defining the

proportion of a bookstore’s stock that would render the

store an "adult bookstore" for purposed of a similar

zoning ordinance, but at the same time explicitly

recognized that a local legislative body retained the

authority to adopt an alternative standard, stating: "If the

board of supervisors intended to allow a lesser portion it

behooves them to quantify the phrase and make findings

showing their figure is consonant with the governmental

interest being protected." (128 Cal.App.3d at p. 376, 181

Cal.Rptr. 1.) And in Strand Property Corp. v. Municipal

Court (1983) 148 Cal.App.3d 882, 200 Cal. Rptr. 47, the

Court of Appeal, while applying the Pringle standard to

the version of a San Diego adult entertainment zoning

ordinance before it, noted that the city council had

amended the ordinance after the suit in that case had

been filed to define an adult motion picture theater as a

theater that presents sexually explicit films or shows "for

viewing on more than 7 days within any 56-consecutive-

day period,” and stated approvingly that while "this

provision is not in issue here, . . . we may observe it

operates in aid of the Code’s certainty." (148 Cal.App.3d

at p. 889, fn. 9, 200 Cal.Rptr. 47.)

Thus, Pringle, supra, 115 Cal.App.3d 151, 171

Cal.Rptr. 251, should not be, nor has it been interpreted

as preventing a city from holding public hearings and

examining studies, based either on its own or other cities’

experiences, and enacting an ordinance that explicitly

defines adult motion picture theaters as those exhibiting

numerically more or less than a preponderance of adult

films. At that point, a city may be in the correct posture

to raise the claims Long Beach attempts to litigate in this

case.

That the majority’s "regular and substantial course

of conduct" standard is vague and untailored to the

governmental interest at stake is hardly surprising. It does

not appear in the parties’ briefs, in decisions of the courts

below, or indeed, in any of the reported cases in this state.

While, we cannot insist on "celestial precision," as the

majority put it, because the ordinance touches on free

speech nghts and because violation of the ordinance can

subject a theater owner to criminal penalties, both the

locality’s interests and constitutional values would be

better served by a more precise definition of “adult

motion picture theater" -- (see, e.g., Strand Property Corp.

v. Municipal Court, supra, 148 Cal.App.3d 882, 889, 200

Cal.Rptr. 47) -- that is, a definition that can be

understood and easily applied by all parties without

engendering endless court controversy and without

deterring constitutionally protected speech that poses no

substantial danger of adverse secondary effects. The

choice among a variety of reasonable, alternative

standards that could be used to define an "adult motion

picture theater" is clearly a legislative policy decision. The

appropriate legislative body, not this court, is in the best

position to assess the circumstances likely to create

adverse secondary effects in its own community.

IT]

I must acknowledge that I share the majority’s

concern that the preponderance test might result in too

high a standard. The solution, however, is not to invent

a "regular and substantial course of conduct" standard, of

dubious context and unsupported by legislative findings.

To do so is to usurp the legislative role. In my view the

proper course is to allow municipalities, which "often

employ planning experts who can prepare studies of the

probable effects of a proposed zoning ordinance" (Zoning,

op. cit. supra. 91 Harv.L.Rev. at p. 1560), to analyze, to

consider and possibly to experiment with various standards

and, most importantly, to create a record for judicial

review. If an ordinance based on such a record is

thereafter challenged, we would have a sound basis for

determining whether the standard violates free speech

principles.

KENNARD, Associate Justice,

concurring and dissenting.

I concur in the majority's conclusion that the Long

Beach adult entertainment zoning ordinance at issue here

cannot properly be interpreted to classify a theater as an

"adult motion picture theater" within the meaning of the

ordinance (Long Beach Mun. Code, § 21.51.020, subd.

It appears that the majority do not

propose that their new standard should be applied

retroactively to these defendants (see maj. opn.,

ante, at p. 748, fn. 11 of 259 Cal.Rptr., at p.

777, f€n. 11 of 774 P.2d). Criminal prosecution

based on the past conduct of defendants -- like the

theater owners in this case -- who may well have

conducted their theater’s operations in reliance

both on the Pringle decision and on subsequent

California cases that followed Pringle, would

undoubtedly raise serious ex post facto ,.oblems.

A.2.)' solely on the basis of the theater’s single showing of

a sexually explicit film. This conclusion would follow even

under ordinary principles of statutory interpretation,

without resort to constitutional considerations.

The ordinance in question is a zoning ordinance,

not an obscenity ordinance. As the United States

Supreme Court said in Renton v. Playtime Theatres, Inc.

(1986) 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29,

such an ordinance "is aimed not at the content of the films

shown at ‘adult motion picture theaters,’ but rather at the

secondary effects of such theaters on the surrounding

community." (Emphasis in onginal.)

"{It] is difficult to imagine that only a single

showing ever, or only one in a year would have any

meaningful secondary effects" on the community

surrounding a motion picture theater. (Tollis, Inc. v. San

Bernardino County (9th Cir. 1987) 827 F.2d 1329, 1333.)

Therefore, it would not be reasonable to ascribe to the

drafters of the Long Beach ordinance an intent to include

a theater within the ordinance’s "adult motion picture

theater" category on the basis of a single showing of a

sexually explicit film, particularly in the absence of any

indication on the face of the ordinance or any legislative

history suggesting such an intent. Thus, I concur in the

majority's rejection of the city’s contention that the

. Section 21.51.020 provides in relevant

part: "A. For purposes of this chapter, the adult

entertainment businesses are defined as follows:

" "

2. ‘Adult motion picture theater’ means an

enclosed building with a capacity of fifty or more

persons used for presenting material distinguished

or characterized by their emphasis on matter

depicting, describing or relating to specified

sexual activities or specified anatomical areas for

observation by patrons therein."

ordinance embodies a "single use" standard.

II.

Like Justice Mosk, however, I cannot join in that

portion of the majority opinion which goes beyond the

city’s "single use" contention and undertakes to fashion an

entirely new standard for defining an "adult motion

picture theater" for purposes of the Long Beach

ordinance. In so doing, the majority discards the Court of

Appeal’s interpreiation of a virtually identical provision in

Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171

Cal.Rptr. 251. This venture by the majonity is, in my view,

unwarranted.

In Pringle, the appellate court construed the

challenged adult entertainment zoning ordinance as

applying only to theaters which showed "a preponderance"

of sexually explicit films. Other appellate courts have

followed Pring/e in interpreting similar zoning ordinances

which did not contain a precise or definite standard for

determining whether a theater or bookstore fell within the

reach of the ordinance. (See, e.g., Kuhns v. Board of

Supervisors (1982) 128 Cal.App.3d 369, 376, 181 Cal.Rptr.

1; Strand Property Corp. v. Municipal Court (1983) 148

Cal.App.3d 882, 889-890, 200 Cal.Rptr. 47.)

During oral argument in this case, counsel for the

city was asked several times whether, in the event the

court disagreed with his "single use" contention, he was

urging the court to interpret the ordinance as embodying

some from of intermediate standard between a "single

use" standard and Pringle’s "preponderance" standard.

Counsel responded he was going "for broke,” and he did

in fact argue only for a "single use" standard. Under these

circumstances, we should not devise a compromise

interpretation of our own design.

Also, in reaching out to overturn Pringle, supra,

115 Cal.App.3d 151, 171 Cal.Rptr. 251, the majority

opinion ignores the fact that, in the span of eight years

since that decision, the City of Long Beach has taken no

action to modify the Pringle test. If, in the city’s view, the

"preponderance" standard is too easily evaded and does

not adequately identify those theaters which produce

detrimental secondary effects on the surrounding

neighborhoods in its community, the city could have

amended the language of its zoning ordinance to adopt an

alternative, more stringent definition of adult theaters.’

Both Kuhns and Strand, which were decided in 1982 and

1983, hold that a locality is free to adopt an alternative to

the preponderance standard. (See Kuhns, supra, 128

Cal.App.3d at p. 376, 181 Cal.Rptr. 1; Strand, supra, 148

Cal.App.3d at p. 889, 200 Cal.Rptr. 47.) Indeed, the

Strand decision specifically noted that the city of San

Diego had opted for this approach in September of 1982,

Contrary to the implication in the

majority opinion (see ante, p. 747 & fn. 8 of 259

Cal. Rptr., p. 776 & fn. 8 of 774 P.2d), there is

nothing in Pringle which suggests that its

"preponderance" standard represented any sort of

constitutional "floor" for adult entertainment

zoning ordinances in general. Although the Pringle

court did hold that the term "used" in the

ordinance at issue in that case could not

constitutionally be interpreted to mean a —-

use" (Pringle, supra, 115 Cal.App.3d at pp. 161-

162, 171 Cal.Rptr. 251), the court did not in any

way intimate that local entities were

constitutionally prohibited from adopting any

definition of an adult theater that was more

restrictive tiian a preponderance standard. And, as

noted hereafter in the body of my concurring and

dissenting opinion, other courts have not

interpreted Pringle as adopting such a restriction.

when it amended its adult entertainment zoning ordinance

to specifically define an adult theater as one which

exhibits the described type of sexually explicit films "’on

more than 7 days within any 56-consecutive-day period.”"

(See Strand, supra, 148 Cal.App.3d at p. 889, fn. 9, 200

Cal.Rptr. 47.)

Here, in discarding Pringle’s "preponderance"

standard, the majority opinion fails to give adequate

deference to the city’s legislative prerogative.

Finally, there is an additional reason why we

should leave to the city’s legislative body the task of

modifying the Pringle test. Under the somewhat

indefinite "regular and substantial course of conduct"

standard proposed by the majority, an ordinary theater

(see, e.g., Pringle, supra, 115 Cal.App.3d at p. 153 & fn.

1, 171 Cal.Rptr. 251), which in good faith wished to

comply with the law, may have difficulty in determining

whether it may show a popular, nonobscene -- but sexually

explicit -- film once a week, once a month, or even once

every two months without facing criminal charges of

having turned its theater into a prohibited "adult motion

picture theater." Even if the majority's proposed standard

is sufficiently definite to survive a constitutional vagueness

challenge -- a question on which I would reserve judgment

-- it still appears unwise to thrust such a standard on a

locality which has not itself opted for such an opaque

definition. As Justice Mosk observes, such a standard will

inevitably engender "endless court controversy" (see ante,

p. 753 of 259 Cal.Rptr., p. 782 of 774 P.2d) as to how

many films must be shown over what period of time to

satisfy the "regular and substantial course of conduct" test.

Such litigation would ill-serve not only the administrative

and financial interests of the locality but also the

legitimate constitutional interests of theater owners and

theater patrons.

There are numerous methods by which a city could

reasonably define the category of theaters whose presence

is likely to have detrimental secondary effects on the

surrounding community without creating the enforcement

problems which are likely to arise under the majority’s

view. For instance, a city could define such a theater by

reference to (1) the proportion of the theater’s films

which are sexually explicit, (2) the number of sexually

eyplicit films which are shown at the theater each week,

each weekend or each month, (3) the nature of the films

which receive top billing on the theater’s marquee or in its

advertisements, or (4) the percentage of the theater’s

revenues which are attributable to the showing of sexually

explicit films.

A local legislative body is better equipped than this

court to determine, in light of local conditions, how best

to identify those theaters which are likely to become a

"blight" on the local community, and to frame a definition

which local authorities can enforce and which will provide

adequate guidance to those who wish to comply with the

law.’

> Unlike Justice Mosk, I do not read the

governing federal decisions as requiring a local

entity to point to specific empirical evidence to

support its choice of one particular definition of

"adult theater" over another. The lead opinion in

Young v. American Mini Theatres (1976) 427 U.S. 50,

71, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310, makes it

clear that a city "must be allowed a reasonable

opportunity to experiment with solutions to

admittedly serious problems." Of course, any

definition which is chosen must not be "'a pretext

for suppressing expression’" (see Renton, supra,

475 U.S. at p. 54, 106 S.Ct. at p. 932 [quoting

Young, supra, 427 U.S. at p. 84, 96 S.Ct. at p.

Accordingly, although I concur in the majority’s

rejection of the city’s "single use" contention and in the

affrmance of the Court of Appeal judgment, I respectfully

dissent from the majority opinion insofar as it ventures

beyond the city’s "single use" claim.

BROUSSARD, J., concurs.

2459 (Powell, J. conc.)]), but must be selected as

a reasonable means of protecting the community from

adverse secondary effects.

APPENDIX # 2

(Lucero II)

Lucero v. Municipal Court (People)

(1993) 15 Cal.App.4th 784

[19 Cal.Rptr.2d 143]--"depublished"

by order of the California Supreme

Court August 12, 1993

Jose Ronillo Abogado LUCERO, Jimmie Johnson,

Walnut Properties, Inc., a California

Corporation, Petitioners and Respondents

MUNICIPAL COURT OF the LONG BEACH JUDICIAL

DISTRICT, County of Los Angeles, State of

California, Defendants.

PEOPLE of the State of California, Real Party in Interest

and Appellant.

No. B050440.

Court of Appeal, Second District,

Division 7.

May 7, 1993.

The Superior Court, Los Angeles Count, No.

C715969, Jack M. Newman, J., awarded theater owners

attomey’s fees and costs under § 1988 as prevailing parties

in writ proceedings to restrain criminal prosecution

brought by city in violation of their constitutional nights.

City appealed. The Court of Appeal, Johnson, J., held

that: (1) theater owners were prevailing parties in

proceeding to vindicate their civil rights for purposes of

award of fees; (2) immunity did not shield city from

paying fee award; (3) city was real party in interest to be

held responsible for fee award even though city was not

named in pleadings; and (4) award of fees under § 1988

was proper in action to restrain unconstitutional criminal

proceedings.

Affirmed.

John A. Vander Lans, Long Beach City Prosecutor,

Robert R. Recknagel, Asst. City Prosecutor, and Gerry L.

Ensley, Deputy City Prosecutor, for real party in interest

and appellant.

Fleishman, Fisher & Moest, Stanley Fleishman and

David Grosz, Los Angeles, for petitioners and

respondents.

Ira Reiner and Gil Garcetti, Dist. Attys. of Los

Angeles County, Harry B. Sondheim, Head Deputy Dist.

Atty., and Diana L. Summerhayes, Deputy Dist. Atty., for

amicus curiae Appellate Committee of California Dist.

Attys. Ass'n.

JOHNSON, Associate Justice.

The City of Long Beach appeals from an order of

the superior court awarding respondents attorney fees and

costs as prevailing parties in an action to restrain a

criminal prosecution brought by the City in violation of

their constitutional rights. We affirm.

FACTS AND PROCEEDINGS BELOW

Respondents, Jose Ronillo Abogado Lucero,

Jimmie Johnson and Walnut’ Properties, Inc.

(respondents), owned, operated or worked at the

Lakewood Theater in the City of Long Beach. Some of

the films shown at the theater were X-rated adult movies.

In 1977 the City of Long Beach (City) adopted a "non-

cluster" or "anti-skid row" ordinance prohibiting any adult

entertainment business within 500 feet of residential areas

or 1,000 feet of public schools or churches. (Long Beach

Mun.Code, ch. 21.51.)

In December 1977, and shortly after the Lakewood

Theater opened, the City instituted proceedings

culminating in the revocation of Walnut Properties, Inc.'s

(Walnut) operating license. Walnut sued the City to

challenge the constitutionality of the ordinance. (Walnut

Properties v. City Council of Long Beach (1980) 100

Cal.App.3d 1018, 1024, 161 Cal.Rptr. 411.) The Court of

Appeal upheld the constitutionality of the ordinance and

affirmed Walnut’s misdemeanor convictions for operating

an adult entertainment business in violation of the Long

Beach ordinance.

Walnut thereafter reduced the number of adult

movies shown at the theater to something at or under 50

percent. Based on a then recent Court of Appeal decision

interpreting the constitutionality of zoning restrictions on

adult entertainment, a theater could not be regulated as

adult entertainment unless a "preponderance" of the films

exhibited were of the adult variety. (Pringle v. City of

Covina (1981) 115 Cal.App.3d 151, 171 Cai.Rptr. 251)

"Preponderant use" of an adult theater was thereafter

defined as "over 50 percent." (Strand Property Corp. v.

Municipal Court (1983) 148 Cal.App.3d 882, 889, 200

Cal.Rptr. 47.)

Nevertheless, the City attempted to prosecute

Walnut and others for probation violations based on a

single showing of an adult film. Walnut filed suit for

declaratory and injunctive relief against the city council

and the city prosecutor alleging the rights under 42

United Stated Code section 1983 and Pringle. Walnut

successfully sought an injunction to restrain the criminal

proceedings as well as attorney fees under 42 United

Stated Code section 1988. On appeal, the City contended

Pringle was wrongly decided and that a single showing of

an adult film should be sufficient under the first

Pirie.

amendment to violate its ordinance. The Court of Appeal

agreed it was constitutionally permissible to regulate a

theater showing a single adult film and reversed the

judgment and award of fees. (Walnut Properties, Inc. v.

Ussery (1986 178 Cal.App.3d 186, 223 Cal.Rptr. 511

[opinion ordered not published in the Official Reports by

order of the Supreme Court dated June 24, 1986

(B005781)].)

In September 1987, the Long Beach City

Prosecutor charged respondents with 12 counts each of

violation the City ordinance. Each count of the complaint

was predicated upon a single showing of an adult movie

on a specific date. Although aware the decision in Ussery

was deprived of precedential value due to the decision’s

depublication, and that the "predominant use" of the

Lakewood theater was not the exhibition of adult films

and therefore did not violate the ordinance as interpreted

under Pringle, the City filed the complaints to directly

challenge Pringle’s "predominate use" standard.

Respondents demurred to the complaints

contending they could not be prosecuted based on an

unconstitutional interpretation of the Long Beach Zoning

Ordinance, i.e., based on a single showing of an adult

film. The Municipal Court of Long Beach overruled the

demurrers and set the case for trial.

Respondents sought a writ of prohibition or

mandate to compel the municipal court to sustain the

demurrers and dismiss the complaints. Respondents

Stated the petition was brought pursuant to 42 United

States Code section 1983, because the present

prosecution, brought under color of state law, would

deprive them of their rights under the First and

Fourteenth Amendments as guaranteed by the

Constitution of the United States.

The superior court granted a peremptory writ of

mandate commanding the municipal court to grant the

demurrers with 30 days leave for the real party in interest

to file amended complaints. In its order the court

explained that "the proceedings against petitioners under

the allegations of the complaints filed in the respondent

court subject the petitioners to a deprivation of rights

secured by the first and fourteenth amendments to the

United States Constitution. ... . ‘

The City’s prosecutors refused to amend the

complaints and instead petitioned the Court of Appeal for

a writ of mandate to compel the superior court to vacate

its judgment.

The Court of Appeal denied the writ and rejected

the City’s contention a single showing of an adult film was

constitutionally sufficient to make a theater an adult

motion picture theater within the meaning of the City’s

zoning ordinance. The court denied the City’s petition for

writ of mandate because the complaints did not and could

not allege, as required by the decision in Pringle, that the

preponderance of films exhibited were distinguished or

characterized by their emphasis on matter depicting,

describing or relating to specified sexual activities or

specific anatomical areas as those terms are defined in the

Long Beach Municipal Code. The Supreme Court

granted the City’s petition for review of the

constitutionality of the City’s "single use" standard.

The Supreme Court found the "single use" standard

violated the first amendment. The court also found,

however, the Pringle “predominate use" standard was

unnecessarily high and was not constitutionally compelled.

The court rejected both the "single use" and Pringle

standards for defining the conditions under which a

theater may be permissibly regulated as an adult theater

and adopted instead a "regular and substantial course of

conduct" standard. (People v. Superior Court (Lucero)

(1989) 49 Cal.3d 14, 27, 259 Cal.Rptr. 740, 774 P.2d 769.)

The court concluded that "The People, having alleged

multiple violations of Chapter 21.51, section 21.51.030 of

the Long Beach Municipal Code, each based on the

unconstitutional ‘single use’ standard, are not entitled to

proceed with the action as pleaded. Accordingly, the

judgment of the Court of Appeal [denying the City’s

petition for writ of mandate to reinstate the complaint] is

affirmed." (49 Cal.3d at p. 28, 259 Cal.Rptr. 740, 774 P.2d

769.) The court concluded that "The People, having

alleged multiple violations of Chapter 21.51, section

21.51.030 of the Long Beach Municipal Code, each based

on the unconstitutional ‘single use’ standard, are not

entitled to proceed with the action as pleaded.

Accordingly, the judgment of the Court of Appeal

[denying the City’s petition for writ of mandate to

reinstate the complaint] is affirmed." (49 Cal.3d at p. 28,

259 Cal.Rptr. 740, 774 P.2d 769.)

Thereafter respondents filed a motion for an award

of attorney fees pursuant to the Civil Rights Attorney’s

Fees Awards Act of 1976. (42 U.S.C., § 1988.) After

extensive briefing and argument from the parties, the

superior court awarded respondents $35,000 in fees and

$1,773 in costs to be paid by real party in interest, the

City of Long Beach. The City appeals from the order,

asserting the award is inappropriate as a matter of law in

numerous respects.

DISCUSSION

. RESPONDENTS WERE THE

PREVAILING PARTIES IN THE

PROCEEDINGS TO VINDICATE THEIR

CIVIL RIGHTS.

[1] The City contends respondents are not

entitled to attorney’s fees because they received only a

technical victory concerning the pleadings and did not

receive any relief on the merits. The city argues because

respondents could not be prosecuted under the Pringle

"predominate use" theory, and could not be prosecuted on

a "single use" theory, there has been no legal change

between the parties to qualify respondents as the

prevailing parties.

The leading case defining who can be deemed a

"prevailing party" in a civil nights action, and therefore

who is entitled to an award of fees under section 1988, is

Texas State Teachers Assn. v. Garland Independent School

Dist. (1989) 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d

866.' In that case the Court was asked to determine

' 42 United States Code section 1983, the

relevant civil rights statute, provides in

pertinent part:

"Every person who, under color of any

statute, ordinance, regulation, custom or usage, of

any state .. .subjects, or causes to be subjected,

any citizen of the United States . . . to the

deprivation of any rights, privileges or immunities

secured by the Constitution . . . Shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress .

42 United States Code section 1988, the Civil

Rights Attorney's Fees Awards Act, provides in

pertinent part:

"In an sty) or proceeding to enforce a

provision of § (1985). the Court, in its

discretion, may pa the prevailing party ...a

whether the teachers association could be deemed to be

the prevailing party in the action although some of its

claims were dismissed. The Court examined its decisions

defining "prevailing parties" in varying contexts and

determined "[i]f the plaintiff has succeeded on any

significant issue in litigation which achieve[d} some of the

benefit the parties sought in bringing suit the plaintiff has

crossed the threshold to a fee award of some kind . . .

As we noted there, [rjespect for ordinary language

required that a plaintiff receive at least some relief on the

merits of his claim before he can be said to prevail. Thus,

at a minimum, to be considered a prevailing party within

the meaning of § 1988 the plaintiff must be able to point

to a resolution of the dispute which changes the legal

relationship between itself and the defendant... The

touchstone of the prevailing party inquiry must be the

material alteration of the legal relationship of the parties

in a manner which Congress sough to promote in the fee

statute. Where such a change has occurred, the degree of

the plaintiff's overall success goes to the reasonableness of

the award under Hensley v. Eckerhart, 461 U.S. 424, 103

S.Ct. 1933, 76 L.Ed.2d 40 (1983)] not to the availability of

a fee award vel non." (489 U.S. at pp. 791-793, 109 S.Ct.

at pp. 1492-1494, internal citations and quotation marks

omitted.)

In this case the writ proceeding brought by

respondents changed the legal relationship between the

parties. Respondents sought a writ of prohibition or

mandate to prevent any prosecution based on the

unconstitutional charges. At the termination of all the

reascnable attorney's fee... .

All further statutory references are to Title

42 of the United States Code unless otherwise

indicated.

writ proceedings, our Supreme Court issued its decision

restraining the criminal prosecution. Thus, where once

respondents were defendants threatened with a

prosecution for alleged violations of a Long Beach

Municipal Ordinance, at the end they were freed from

having to defend against the unconstitutional charges.

Furthermore, respondents received some relief on

the merits of their claim. Their petition for writ of

prohibition or mandate alleged the criminal prosecutions

would violate their nghts under the First and fourteenth

Amendments of the United States Constitution. The

superior court, Court of Appeal and Supreme court

agreed and the prosecution was restrained.

It is true the City also received some benefit from

the litigation in that the more stringent Pringle standard

has now been replaced by a more lenient "regular and

substantial course of conduct" standard for determining

when an adult theater may be constitutionally regulated.

However, that incidental, alleged benefit for prosecutors

generally is irrelevant to the inquiry whether respondents,

as the parties that pursued the wnt proceedings pursuant

to section 1983, were successful in restraining a

. Based on the Supreme Court's

conclusion, we reject the City’s contention no

court found respondent’s constitutional rights had

been violated.

Also, based on the plain and unambiguous

language used in the petition, we reject the City’s

contention it had inadequate notice the writ was

sought pursuant to section 198 and that it could,

therefore, be liable for fees under section 1988.

(See Leatherman v. Tarrant County Narcotics

aT and Coordination Unit (1993) --- U.S.

---, 113 S.Ct. 1360, 122 L.Ed.2d 517 [there is no

heightened pleading standard in civii rights

actions]. )

prosecution based on the City’s unconstitutional standard

of "single use."

II. NO IMMUNITY SHIELDS THE CITY

FROM PAYING A FEE AWARD

UNDER SECTION 1988 BECAUSE

RESPONDENTS BROUGHT AN

ACTION FOR PROSPECTIVE RELIEF

UNDER SECTION 1983.

Relying on the decision in Imbler v. Pachtman

(1976) 424 U.S. 409, 95 S.Ct. 984, 47 L-Ed.2d 128, the

Long Beach City Prosecutor contends the award of fees

was improper because prosecutors enjoy absolute

immunity for actions taken in the official exercise of their

. discretion. The City contends if the prosecutor’s office is

immune from section 1983 liability there can be no fee

shifting under section 1988.

This argument is inapplicable to the case at bar.

Imbler provides absolute immunity to state prosecutors

from personal liability in damages for malicious

prosecution. Nor was the underlying action brought

against the Long Beach City Prosecutors individually.

[2] | Moreover, the doctrine of prosecutorial

immunity is inapplicable in actions for prospective relief

where the liability of the municipality for violations of civil

rights is at issue and not that of the official personally

(Owen v. City of Independence (1980) 445 U.S. 622, 100

S.Ct. 1398, 63 L.Ed.2d 673) and where the fee award is to

be paid by the governmental entity (Hutto v. Finney (1978)

437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522). (See also

Kentucky v. Graham (1985) 473 U.S. 159, 167, 105 S.Ct.

3099, 3105, 87 L.Ed.2d 114 [in suit against municipal

officers personally, city cannot be held liable on

respondeat superior theory although that defense

unavailable where officials sued in official capacity.})

[3] In Supreme Court of Virginia v. Consumers

Union of the United States, Inc. (1980) 446 U.S. 719, 100

S.Ct. 1967, 64 L.Ed.2d 641, the Court held the Virginia

court could be held liable for an award of fees under

section 1988 in their role as the enforcement agents of the

state bar rules. In so holding the Court noted

"[p]rosecutors enjoy absolute immunity from damages

liability, but they are natural targets for § 1983 injunctive

suits since they are the state officers who are threatening

to enforce and who are enforcing the law." (/d. at pp. 736-

737, 100 S.Ct. at p. 1977, internal citation omitted.) After

reviewing the cases holding the Eleventh Amendment did

not bar an award of attorney fees against a state officer in

his or her official capacity in a suit for injunctive relief in

federal court (Hutto v. Finney, supra, 437 U.S. 678, 693-

700, 98 S.Ct. 2565, 2574-2579), the court stated:

“Accordingly, enforcement authorities against whom §

1983 judgments have been entered would ordinarily be

charged with attorney’s fees." (446 U.S. at p. 738, 100

S.Ct. at p. 1977.)°

- The City suggests other bases for

immunity from an award of attorney's fees. These

contentions, however, have no merit. The Eleventh

Amendment provides no immunity for an action

brought in state court, especially where the

liability of a municipality, and not a state, is at

issue. Secondly, as the City concedes, state

common law and statutory immunities do not pertain

to a civil rights action brought under federal law.

(See, e.g., Gov.Code;—§ 821.6; Kemmerer v. County

of Fresno (1988) 200 Cal.App.3d 1426, 246 Cal.Rptr.

609.)

Contrary to the arguments of the City, the fee

award against the City was proper because the writ

proceeding in the present case was not an action for

damages but was instead tantamount to a suit for

declaratory or injunctive relief. As noted by one

commentator: "Where the statute or ordinance is

unconstitutional, there is no legally punishable offense,

and the court has ‘no-jurisdiction to try the defendant. In

such a case, a higher court will grant the equivalent of an

injunction, namely a writ of prohibition to prevent the

lower court from trying the defendant." (4 Witkin &

Epstein Cal.Criminal Law (2d ed. 1989) Jurisdiction and

Venue, § 1831, p. 2168, emphasis in Criginal; see also,

Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 171

P.2d 8 [writ of prohibition proper vehicle to restrain

prosecution based on unconstitutional Statute]; Patterson

v. Municipal Court (1965) 232 Cal.App.2d 289, 42

Cal.Rptr. 769 [prohibition to compel trial court to

properly instruct on and give issue to the jury].)

Because the writ proceeding in the present case

Sought to restrain the unconstitutional criminal

prosecutions, the proceeding was sufficiently akin to a suit

for declaratory or injunctive relief to warrant an award of

fees against the City for the unconstitutional actions of its

enforcement officials.‘

" Because the present proceedings

requested only prospective relief from the

unconstitutional prosecution, we reject the City’s

argument respondents are not entitled to fees

because they did not plead and prove damages and

did not request findings of fact or conclusions of

law regarding the City’s history, custom and policy

regarding its decision to construe its ordinance to

be violated upon a Single exhibition of an adult

motion picture. In these proceedings, where the

relief sought was to restrain the illegal criminal

III. RESPONSIBILITY FOR PAYING THE

FEE AWARD MAY PROPERLY BE

PLACED ON THE CITY ALTHOUGH

NOT NAMED IN THE PLEADINGS.

(4! The City next contends the fee award

against it was improper because only the People of the

State of California were named as the real party in

interest in the writ proceedings.°

However, it is sufficient if the course of the

prosecution pursuant to section 1983, it was only

necessary to demonstrate the City’s prosecutor,

under color of state authority, consciously decided

to prosecute respondents based on a single showing

of an adult movie and that the City’s standard was

constitutionally impermissible. (Gomez v. Toledo

(1980) 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64

L.Ed.2d 572.)

Any argument respondents failed to prove

these elements, or that the City had not adopted as

its policy the "single use” standard, would be

disingenuous at best. As Justice Kennard noted in

her concurring and dissenting opinion in People v.

Superior Court (Lucero), supra, 49 Cal.3d at p. 35,

259 Cal.Rptr. 740, 774 P.2d 769, “During oral

argument in this case, counsel for the city was

asked several times whether, in the event the court

disagreed with his ‘single use’ contention, he was

urging the court to interpret the ordinance as

embodying some form of intermediate standard

between a ‘single use’ standard and Pringle’s

‘preponderance’ standard. Counsel responded he was

oing ‘for broke", and he did in fact argue only

or a ‘single use" standard."

’ When the city prosecutor's office

prosecutes misdemeanors committed within its

jurisdictional territory, by statute it must do so

in the name of the People of the State of

California. (Gov.Code, §§ 36900, subd. (a),

41803.5.)

proceedings reveal the real party in interest for purposes

of identifying the individual or entity against whom a fee

award may be made. As the Court stated in Brandon v.

Holt (1985) 469 U.S. 464, 471-472, 105 S.Ct. 873, 877-878,

83 L.Ed.2d 878: "In at least three recent cases arising

under § 1983, we have plainly implied that a judgment

against a public servant "in his official capacity’ imposes

liability on the entity that he represents provided, of

course, the public entity received notice and an

Opportunity to respond. We now make that point

explicit." Thus, in Brandon v. Holt the Court held the city

was responsible for paying the attorney fees awarded to

the prevailing plaintiffs in a section 1983 action against

the city’s director of police sued in his official capacity.

(/d. at p. 471, 105 S.Ct. at p. 877.)

In Hutto v. Finney, supra, 437 U.S. 678, 98 S.Ct.

2565, the Court rejected the state attorney general’s

argument the state could not be responsible for attorney

fees under section 1988 based on an action for injunctive

relief where prison officials were the named defendants.

"[T]he Attorney General argues that, even if attorney’s

fees may be awarded against a State, they should not be

awarded in this case, because neither the State nor the

Department is expressly named as a defendant. Although

the Eleventh Amendment prevented respondents from

suing the State by name, their injunctive suit against

prison officials was, for all practical purposes, brought

against the State. The actions of the Attorney General

himself show that. His office has defended this action

since it began. [Citation] The State apparently paid

- earlier fee awards; and it was the State’s lawyers who

decided to bring this appeal, thereby risking another

award.

"Like the Attorney General, Congress recognized

that suits brought against individual officers for injunctive

relief are for all practical purposes suits against the State

itself. The legislative history makes it clear that in such

suits attorney’s fee awards should generally be obtained

‘either directly from the official, in his official capacity,

from funds of his agency or under his control, or from the

State or local government (whether or not the agency or

government is a named party). S.Rep. No. 94-1011, p.

(1976)." (Hutto v. Finney, supra, 437 U.S. at pp. 699-700,

98 S.Ct. at p. 2578, italics added.)

Thus, whether or not the City was named as a real

party in interest in this action is not determinative in

ascertaining which person or entity should be responsible

for the fees in this case. What is determinative is whether

the course of proceedings reveal the real party in interest

and whether that party had adequate notice of the suit

and an opportunity to defend.

All the criteria for imposing the fee award against

the City of Long Beach area met in this case. The entire

controversy concerned the enforcement of Long Beach's

zoning ordinance. The "singe use" standard was the city

prosecutor’s interpretation of the City ordinances. The

city prosecutor’s office has defended the ordinance and

represented the City’s interests in all proceedings at every

level. The city prosecutor in fact brought this appeal to

challenge the award of fees imposed against the City.

From this record it is clear the City had adequate

notice of the proceedings anc has had its interests

represented throughout. The trial court found, and we

agree, the City of Long Beach was the real party in

interest in these proceedings to defend its ordinance.

Under these circumstances, we find no violation of due

process in requiring the Cit as the real party in interest in

this action to pay the award of attorney fees and costs.

IV. SECTION 1988 ATTORNEY’S FEE

AWARDS MAY BE _ PROPERLY

AWARDED IN ACTIONS TO

RESTRAIN UNCONSTITUTIONAL

CRIMINAL PROCEEDINGS.

[5] Amicus curiae suggests an award of attomey

fees is improper when awarded in a proceeding which is

part of a criminal prosecution. The argument, apparently,

is that criminal defendants should not be allowed to

bootstrap a civil proceeding which carries with it a

potential for an award of fees into a criminal prosecution.

Amicus curiae does not cite any relevant authority for this

proposition. Nor do we see anything inherently improper

in this process.

Apparently amicus curiae would prefer a criminal

defendant to pursue his or her remedies in the criminal

action and then later or simultaneously file a separate civil

action under section 1983 for the civil nights violations

inflicted in the criminal proceeding. We fail to see how

a multiplicity of suits to accomplish the same objective can

possible benefit either defendants, the justice system or

further the congressional purpose of providing an effective

Statutory vehicle to vindicate civil rights secured by the

Constitution. (See, e.g., Lezama v. Justice Court (1987)

190 Cal.App. 3d 15, 24, 235 Cal.Rptr. 238 [to be entitled

to fees under section 1988, criminal defendants should

pursue available remedies in the original proceeding].)

We agree an award of fees under section 1988 may

not be proper for the fees and costs incurred in defending

a criminal prosecution. (Perkins v. Cross (8th Cir.1984) 728

F.2d 1099; Greer v. Holt (6th Cir.1983) 718 F.2d 206.)

However the fees in this case were neither incurred nor

awarded for that purpose. In this case there was no

actual prosecution to try the alleged charges.

Consequently, there were no fees or costs incurred in

defending against the improper charges. The purpose of

these proceedings was not to secure or defend against a

conviction but rather to restrain an unconstitutional

prosecution before it could begin.

[6, 7] In any event, the language of section 1988

does not limit an award of fees to separately filed civil

actions only. As the Supreme Court noted in Hutto v.

Finney, supra, 437 U.S. at p. 694, 98 S.Ct. at p. 2575:

"The Act itself could not be broader. It applies to ‘any’

action brought to enforce certain civil nghts laws." The

legislative history of The Civil Rights Attorney’s Fees

Awards Act of 1976 supports a broad interpretation as

well. The Senate Report on the Act states: "It is

intended that, the standards for awarding fees be generally

the same as under the fee provisions of the 1964 Civil

Rights Act. A party seeking to enforce the rights

protected by the statues covered by S. 2278, if successful,

‘should ordinarily recover an attorney’s fee unless special

circumstances would render such an award unjust.’

Newman v. Piggie Park Enterprises, Inc.,390 U.S. 400, 402,

88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)." (S.Rep. No.

94-1011, p. 4 (1976), U.S. Code Cong. & Admin.News.

(1976) pp. 5908, 5912.) °

° The City does not specifically allege

special circumstances render the award of fees

unjust. However, the nt inferentially suggests

an award would be unjust because its actions were

in good faith and brought about a change in the

law. Neither circumstance qualifies as a "special

circumstance" prohibiting an award of fees.

These same arguments were presented and

rejected in Wilson v. Stocker (10th Cir.1987) 819

incase

In these writ proceedings, respondents sought to

enforce their rights not to have to defend against

unconstitutional charges. It would appear the broad

language of section 1988 should encompass proceedings

prompted by an impending criminal prosecution as well as

actions for declaratory or injunctive relief brought for the

same purpose. (Compare Wilson v. Stocker (10th

Cir.1987) 819 F.2d 943 [arrestee properly awarded

attorney's fees against district attorney and attorney

general in action for declaratory and injunctive relief io

restrain threatened criminal prosecution].)

[8] Instructive on this point is the decision by

F.2d 943. "We there pointed out that '[£]ee awards

against enforcement officials are run-of-the-mill

occurrences, even though, on occasion, had a state

legislature acted or reacted in a different or more

timely manner, there would have been no need for a

lawsuit or for an injunction. ’ [Citations] Here,

the alleged special circumstances amount to

no more than assertions that the Attorney General

has acted in good faith, a ground overwhelmingly

rejected by the courts. [Citations] Allowing the

circumstances offered by the Attorney General here

to justify denial of attorney's fees would conflict

with controlling case law and defeat the purpose of

section 1988, which is not designed to penalize

defendants but to encourage injured individuals to

seek relief. [Citation.] .-° .

"The District Attorney's assertion that fees

are unjust because her participation in the

litigation helped develop the law and the facts is

also unpersuasive. A party to litigation almost

always aids in such development. Accepting this

assertion as a special circumstance would render a

fee award unjust in virtually every case, a result

undeniably contrary to the congressional intent

that fee awards be ‘an integral part of the

remedies necessary’ to obtain compliance with the

civil rights laws. See S.Rep. No. 1011, 1976

U.S.Code Cong. & Admin.News at 4913." (Wilson v.

Stocker, supra, 819 F.2d at pp. 951-952.)

our Supreme Court in Jn re Head (1986) 42 Cal.3d 223,

228 Cal.Rptr. 184, 821 P.2d 65. The issue in that case was

whether prison inmates were properly awarded attorney's

fees for a successful challenge to prison conditions

brought in habeas corpus proceedings. The attorney fee

provision in that case was Code of Civil Procedure section

1021.5, the private attorney general provision, which only

provided for an award of attorney's fees if several

stringent requirements are met. Although not controlling

authority in an action involving an award of fees under

the expansive federal civil rights statute, the principles

that decision announce guide us to a proper resolution of

this issue.

In Jn re Head, supra, 42 Cal.3d 223, 228 Cal.Rptr.

184, 721 P.2d 65, the Department of Corrections

challenged the award contending fees were only

appropriate in civil proceedings. The Supreme Court

disagreed. In rejecting the parties’ attempt to characterize

the proceedings as either criminal or civil the court

concluded: "We shall conclude that the nature of the relief

sought, not the label or procedural device by which the

action is brought, is determinative of the right to seek fees

under section 1021.5. The petitions here presented issues

reiated to the conditions of confinement in a state prison

and involved the rnghts of prison inmates generally.

Vindication of these rights is not analogous to a defense

against a criminal prosecution. Rather, as respondent

conceded, the petitioner's claim is of such a nature that it

might have been presented in a purely civil proceeding ---

by petition for writ of mandate or action for declaratory

relief --- in which case no question would be raised as to

the propriety of the award. That petitioners elected to

utilize the more expeditious, simplified and less expensive

procedure of habeas corpus to vindicate their rights,

should not affect the availability of a fee award." (Jn re

Head, supra, 42 Cal.3d at p. 226, 228 Cal.Rptr. 184, 721

P.2d 65.)

The court noted attorney's fees are often awarded

in mandate proceedings brought by criminal defendants.

(See, e.g., Olney v. Municipal Court (1982) 133 Cal.App.3d

455, 184 Cal.Rptr. 78 [to prevent sentencing of

misdemeanor defendants in absentia]; Daniels v. McKinney

(1983) 146 Cal.App.3d 42, 193 Cal.Rptr. 842 [to vindicate

right of prison inmates to exercise].) In conclusion, the

court stated: "How the party achieves the goal of

enforcing the right is not determinative of the right to an

award of attorney fees under section 1021.5. The impact

of the litigation is." (Jn re Head, supra, 42 Cal.3d at pp.

228-229, 228 Cal.Rptr. 184, 721 P.2d 65.)

In this case respondents could have brought a

separate civil action for declaratory or injunctive relief.

They instead took the less expensive, more expeditious

route of availing themselves of remedies within the

original proceeding. Whether this writ proceeding may be

characterized as civil or criminal is not significant.

Instead it should be recognized for what it is: an original,

extraordinary proceeding brought to assert their

constitutionally guaranteed civil rights.

In sum, we believe permitting an award of fees for

the vindication of constitutional rights in writ proceedings

arising from an attempted criminal prosecution is

consistent with Congress’ intent to authorize such awards

to a prevailing party in "any proceeding" which successfully

enforces those rights.

DISPOSITION

The award of attorney fees and costs is affirmed.

Respondents to recover their costs of appeal.

LILLIE, P.J., and FRED WOODS, J., concur.

APPENDIX # 3

Order of California Supreme

Court, August 12, 1993, denying

hearing and "depublishing" Lucero II

Second Appellate District, Division Seven, No. B050440

S033385

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

JOSE RONILLO ABOGADO LUCERO Et Al.,

Respondents

Vv.

MUNICIPAL COURT OF THE LONG BEACH JUDICIAL

DIST., Respondent

THE PEOPLE, Real Party In Interest

Petition for review DENIED.

The Reporter of Decisions is directed

not to publish in the Official Appellate

Reports the opinion in the above-entitled

appeal filed May 7, 1993, which appears at

15 Cal.App.4th 784. (Cal. Const., Art.

VI, Section 14, rule 976, Cal. Rules of

Court. )

LUCAS

Chief Justice

SUPREME COURT: FILED, Aug 12, 1993,

Robert Wandruff, Clerk.

APPENDIX # 4

Respondents’ original

Petition for Writ of Prohibition

and/or Mandate in Lucero |

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOSE RONILLO ABOGADO LUCERO,

JIMMIE JOHNSON and WALNUT NO.C632880

PROPERTIES, Inc., a

California Corporation, PETITION

Petitioners FOR WRIT OF

PROHIBITION

AND/OR

vs. MANDATE

BEACH JUDICIAL DISTRICT,

COUNTY OF LOS

ANGELES, STATE

OF CALIFORNIA,

Respondent.

)

}

MUNICIPAL COURT OF THE LONG )

)

THE PEOPLE OF THE STATE OF

CALIFORNIA

Real Party in Interest.

INTRODUCTION

1. Petitioners bring this action to restrain

proceedings in, or to compel the dismissal of, three

criminal prosecutions under the Long Beach "adult

entertainment" zoning ordinance that are proceeding in

flagrant violation of controlling law. Pringle v. City of

Covina, 111 Cal. App. 3d 153, 171 Cal. Rptr. 251

(1981), held that an ordinance that prohibits a movie

theater to be "used for presenting" “adult” films in

certain areas of a city can, constitutionally, apply only

when the "Use "is a predominant one. It held that it

would be unconstitutional for a theater to be barred

under such an ordinance for a single showing of an

“adult” film.

2. In the face of this holding, the present

prosecutions have been brought explicitly under the

Single-showing standard. Petitioners here demurred to

the complaints, but the demurrers were overruled, and

the cases may now be set for trial. Moreover, the

petitioners are at risk of multiple prosecutions arising out

of each's day's normal operation of a movie theater. It

is therefore necessary that relief be granted by this

court.

3. This petition is brought pursuant to 42 U.S.C. §

1983 (1982). By the underlying criminal proceedings,

petitioners are being subjected to the deprivation, under

color of state law, of rights, privileges, and immunities

secured by the Constitution of the United States, and

particularly the first and fourteenth amendments.

4. Each exhibit hereto is a true and correct copy of

what it purports to be and is incorporated in this petition

by reference as if fully set forth.

PARTIES

5. Petitioners Jose Ronillo Abogado Lucero, Jimmie

Johnson, and Walnut Properties, Inc., are, and at all

times mentioned in this petition were, the defendants in

three related criminal cases now pending in respondent

court, People v. Johnson, Lucero | and Walnut

Properties, Inc., Nos M230180, M120181 [sic

M230181], M230182. Walnut Properties, Inc. (Walnut),

is a California corporation that owns and operates the

Lakewood Theater, located at 4501 East Carson

Boulevard, City of Long Beach, County of Los Angeles,

State of California. At all times mentioned Jimmie

Johnson was the president of Walnut and Jose Ronillo

Abogado Lucero was an employee of Wainut.

6. Respondent Municipal Court of the Long Beach

Judicial District, County of Los Angeles, State of

California, is now, and at all times mentioned in this

. petition was, executing judicial functions in each of the

criminal cases mentioned above.

7. Real party in interest People of the State of

California is, and at all times mentioned was, the plaintiff

in each of the criminal cases mentioned above.

FACTS

8. The petitioners are each charged with twelve

counts of violation of section 21.51.030 of the Long

Municipal Code. The complaints in the Lucero,

Johnson, and Walnut cases are Exhibits A, B, and C,

respectively, hereto. The relevant text of chapter 21.51

is Exhibit D hereto. Each count consists of an allegation

that a particular “X-rated movie" was shown at the

Lakewood Theater on a particular day, and that the

theater is located within 500 feet of a residential zone,

1,000 feet of a public school, and 1,000 feet of a

“religious organization."

9. In Pringle v. City of Covina, 115 Cal. App. 3d 151,

171 Cal. Rptr. 251 (1981) (Exhibit E) the court of appeal

held that an ordinance, with language substantively

identical to that of section 21.51.030 would, on its face,

be impermissibly vague. Pringle held that the ordinance

must be narrowly construed to meet constitutional

requirements and could apply only to theaters

presenting a “preponderance” of films which are "adult"

films within the meaning of the ordinance.

10. Prior to Pringle, on or about June 20, 1978,

Walnut and its then president, Vincent Miranda, were

charged in the respondent court with establishing in a

zone permitting “motion picture theaters," an “adult

motion picture theater," contrary to the provisions of the

Long Beach adult zoning ordinance (Section 9120.41 of

the Long Beach Municipal Zoning Ordinance). Johnson

was not a party to that action. Walnut and Miranda

were found guilty and were placed on summary

probation upon the condition that the Lakewood Theater

not be operated as an “adult theater." Also prior to

Pringle, the Appellate Department of the Superior Court

affirmed the conviction. People v. Walnut Properties.

Inc., No CRA 16846 (Cal. Super. Ct. App. Dep't July 1,

1980).

11. After Pringle was decided, on or about May 22,

1981, the City Prosecutor of Long Beach charged that

Walnut and Miranda had violated the terms of probation

by exhibiting certain adult films on May 1, 2, 7 and 8,

1981, at the Lakewood Theater.

12. On September 22, 1983, the probation violation

hearing was heard before the Honorable Kirk Gustafson.

During the course of the probation violation hearing, it

was stipulated, in substance, that the tota! adult film

exhibition time never exceeded the non-adult film

exhibition time at the Lakewood Theater. Following now

the constitutionally required definition of “adult theater”

set forth in Pringle, Judge Gustafson held that there was

no violation of the provisions of probation. The People

appealed. The Appellate Department affirmed. People

v. Walnut Properties, Inc., No. CRA 21481 (Cal. Super.

Ct. App. Dep't Mar. 18, 1985) (Exhibit F). The

Appellate Department stated:

Notwithstanding the holding of the Court

of Appeal in Pringle, supra, the city

attorney for the City of Long Beach has

argued at considerable length, both in the

trial court, and in this court, that a single

showing of an adult film by respondent

constitutes a violation of the provision of

the probation of respondent prescribing

that the Lakewood Theatre not be

operated “as an adult motion picture

theater." The city attorney argues that

Pringle is “clearly wrong", entitled to no

weight, and that it should be declared

unconstitutional by this court. We note,

however, that a petition for hearing by the

Supreme Court with respect to Pringle

was denied on March 25, 1981.

We further note that

Pringle has been approved

by three subsequent Court

of Appeal decisions.

The City filed a petition for writ of certiorari in the United

States Supreme Court, which was denied on October

15, 1985. California v. Walnut Properties, Inc., 106 S.

Ct. 230 (1985).

13. On June 13, 1981, shortly after Walnut and

Miranda were charged with violating probation, they filed

a complaint, Case No. C 369 631, in the Los Angeles

Superior Court for injunctive and declaratory relief

alleging that the Lakewood Theater was not an adult

theater within the meaning of Pringle. The superior

court concluded that plaintiffs were entitled to injunctive

and declaratory relief, and entered judgment declaring

that the city's ordinance "cannot be enforced except in

the context of Pringle .... Unless a preponderance of

the films exhibited by plaintiffs are adult films as that

term is defined in Pringle, the theater is not an adult

theater within the meaning of the Long Beach municipal

code section.”

14. The court of appeal reversed. Walnut Properties.

Inc. v. Ussery, 178 Cal. App. 3d Adv. Sh. 186, 223 Cal

Rptr. 511 (1986) (Exhibit G). That court concluded that

Pringle was wrongly decided, and that a single

exhibition of an adult film converted a theater into an

adult theater. Walnut (Miranda in the interim having

died) filed a petition for review in the California Supreme

Court. The court denied review but ordered that the

opinion of the court of appeal not be published in the

Official reports

15. Pursuant to rule 977(a) of the California Rules of

Court, the appellate opinion in Ussery was deprived of

precedential value, and, accordingly, the rule enunciated

in the published Pringle opinion remains binding

throughout the state.

16. The Long Beach City Prosecutor nevertheless

initiated and is pursuing the prosecutions now pending

in the respondent court, even though he knew that the

activities of the petitioners did not and could not meet

the preponderance standard of Pringle. The complaints

allege that a single showing of an "X-rated" movie in a

particular location violated the Long Beach ordinance.

17. The petitioners filed demurrers to the complaints

The demurrers are substantively identical. Exhibit H is

the demurrer of Lucero. The real party in interest

opposed the demurrers, Exhibit |, petitioners filed a

reply memorandum , Exhibit J. and the real party in

interest a “supplemental opposition,” Exhibit K.

18. After hearing, the respondent court. on

November 18, 1986, overruled the demurrers. The

transcript of the hearing is Exhibit L.

BASES OF RELIEF

19. When the demurrers were overruled, respondent

court indicated its intention to proceed to trial on the

three cases, which action would be in excess of

respondent's jurisdiction in that trial of this matter is

precluded by the first and fourteenth amendments and

article |, section 2, of the California constitution, and by

the authoritative rule of law enunciated in Pringle. The

above-described action of respondent was also

unreasonable, arbitrary, and prejudicial abuse of

discretion, and violated a plain duty imposed on

respondent by law.

20. The alleged activities on which the criminal cases

are based are protected by the first amendment and by

article I, section 2, of the California Constitution. On its

face and as applied and interpreted by real party in

interest and respondent, the Long Beach ordinance

violates the right guaranteed by those provisions. The

criminal complaints fail to state any public offense, in

particular because they allege that the Long Beach

ordinance was violated by a single showing of a film,

and do not and cannot allege that the Lakewood

Theater shows a preponderance of "adult" films.

ABSENCE OF OTHER REMEDIES

21. Petitioners have no right of appeal from

respondent's decision and order of November 18, 1986.

nor a plain, speedy and adequate remedy at law other

than the relief sought in this petition.

IRREPARABLE INJURY

22. As aresult of the action described above, unless

the further proceedings in the actions in respondent

court are not restrained and prohibited or unless

respondent is compelled to perform its legal duty and

sustain the demurrers filed by petitioners, petitioners will

be irreparably injured in that the exercise of their right

of freedom of speech will be chilled and denied, and

they are threatened with a multiplicity of prosecutions

arising from the normal and lawful operation of a motion

picture theater.

WHEREFORE, petitioners pray that:

1. An alternative writ of prohibition and/or mandate

issue under the seal of this court commanding

respondent court to desist and refrain from taking any

further action or proceedings, including trial, in the

criminal actions above described until further order of

this court, and directing respondent and real party in

interest to show cause before this court, at a time and

place then or thereafter specified by court order, why

respondent should not be absolutely and forever

restrained from any further proceedings in the actions;

and to sustain the demurrers filed by petitioners or to

show cause before this court, why it has not done so

and why a peremptory writ should not issue; and

2. On return of the alternative writ and hearing on the

order to show cause, a peremptory writ of prohibition

issue under the seal of this court restraining respondent

absolutely and forever from taking any further

proceedings in the actions and compelling respondent

to sustain the demurrers filed by petitioners: and

3. Petitioners recover their attorney's fees; and

4. Petitioners recover the costs of this action: and

S. The court grant such other and further relief as may

be just and proper.

Dated: January 20, 1987

Respectfully submitted,

Fleishman, Fisher & Moest

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Attorneys for petitioners

APPENDIX # 5

‘icici

Judgment for Peremptory

Writ of Mandate

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE

FOR THE COUNTY OF LOS

JOSE RONILLO ABOGADO LUCERO,

JIMMIE JOHNSON and WALNUT

PROPERTIES, Inc., a

California

Corporation,

Petitioners

vs.

MUNICIPAL COURT OF THE

LONG BEACH JUDICIAL

DISTRICT, COUNTY OF LOS

ANGELES, STATE OF

CALIFORNIA,

Respondent.

THE PEOPLE OF THE STATE OF

CALIFORNIA

Real Party in Interest.

OF CALIFORNIA

ANGELES

)

) NO.C632880

)

) JUDGMENT FOR

) ISSUANCE OF

) PEREMPTORY

)WRIT OF

) MANDATE

ee ee ee ee ee ee ee ee ee ee ee ee 8 ee ae

The matter came on regularly for hearing

before this court on May 14, 1987, in the courtroom of

the Honorable Jack M. Newman, Judge, pursuant to the

verified petition of Jose Ronillo Abogado Lucero, Jimmie

Johnson, and Walnut Properties, Inc.

David Grosz, of Fleishman, Fisher &

Moest, appeared as attorney for petitioners, and Gerry

L. Ensley, Deputy City Prosecutor, City of Long Beach,

Appeared as attorney for real party in interest.

Real party in interest having filed an

answer to the petition, each side having submitted

memoranda of points and authorities in support of their

respective contentions, exhibits having been received in

evidence and examined by the court, arguments having

been presented and the cause submitted for decision,

the court having determined that, pursuant to controlling

authority, the proceedings against petitions under the

allegations of the complaints filed in the respondent

court subject the petitioners to a deprivation of rights

secured by the first and fourteenth amendments to the

United States Constitution and article |, section 2, of the

California Constitution, and the court having directed

that judgment and a peremptory writ of mandate should

issue in the cause,

NOW, THEREFORE, IT IS ADJUDGED.

ORDERED, AND DECREED | that: respondent

immediately upon receipt thereof to grant the demurrers

filed by the petitioners herein in the actions now pending

before it entitled The People of the State of California v.

Walnut Properties, inc., Jimmie Johnson, and Jose

Ronillo Abogado Lucero, Nos. M 230180, M 230181,

and M 230182, with 30 days leave for the real party in

interest to file amended complaints in said actions.

Dated: August 5, 1987

Judge of the Superior Court

Judgment entered on

1987, Vol. of the Judgment Book, page

Clerk

Deputy Clerk

APPENDIX # 6

Respondents’ Request for

Attorney's Fees pursuant to

42 U.S.C. § 1988, commencing

Lucero II

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOSE RONILLO ABOGADO LUCERO, )

JIMMIE JOHNSON and WALNUT ) NO. C632880

PROPERTIES, Inc.,

a California

Corporation, MOTION OF

PETITIONERS

FOR ORDER

AWARDING

ATTORNEY’S

FEES

(42 U.S.C.

§ 1988)

Petitioners

vs.

MUNICIPAL COURT OF

THE LONG BEACH

JUDICIAL DISTRICT,

COUNTY OF LOS ANGELES,

STATE OF CALIFORNIA,

Defendants.

THE PEOPLE OF THE STATE OF

CALIFORNIA

Real Party in Interest.

me ee ee ee ee ee ee ee ee ee ee ee ee ee”

Petitioners move for an order awarding them

attorney's fees, against the people of the state of

California (City of Long Beach), real party in interest,

pursuant to the Civil Rights Attorney's Fees Awards

Act of 1976, 42 U.S.C. § 1988 (1982).

The motion is based of the ground that petitioners

are the prevailing party in this proceeding brought

pursuant to 42 U.S.C. § 1983 (1982) and that no

special circumstances exist that would render an

award of fees unjust.

The motion is based on this motion, all papers and

records on file herein, the declarations of Stanley

Fleishman, David Grosz, and Stuart L. Kadison, the

memorandum of points and authorities served and

filed herewith, and on such other and further matters

as may be presented at or before the hearing of the

motion. Petitioner specifically reserves the right to

supplement this motion with respect to further time

and costs expended.

The declarations and papers in support of this

motion establish the following fees of Stanley

Fleishman $29,547 and of David Grosz $16,410, so

that petitioner is entitled to fees in the lodestar

amount of $45,957; and out-of-pocket expenses of

$1,773.85. The total amount sought on this motion is,

therefore $47,730.85.

Dated: October 23, 1989

Respectfully submitted,

Fleishman, Fisher, & Moest

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

By:

David Grosz

Attorneys for Petitioner

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

(213) 557-1077

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOSE RONILLO ABOGADO LUCERO, )

JIMMIE JOHNSON and WALNUT NO. C632880

)

PROPERTIES, Inc., )

a California )

Corporation, ) MEMORANDUM

) OF POINTS

) AND

Petitioners ) AUTHORITIES

) IN SUPPORT

) OF MOTION

vs. ) FOR

) ATTORNEY’S

) FEES

)

MUNICIPAL COURT OF THE )

LONG BEACH JUDICIAL > €2 F288.

DISTRICT, COUNTY OF LOS ) § 1988)

ANGELES, STATE OF )

CALIFORNIA, )

)

Defendants. )

THE PEOPLE OF THE STATE OF )

CALIFORNIA )

)

Real Party in Interest. )

)

INTRODUCTION.

On January 20, 1987, the petitioners Jose Ronillo

Abogado Lucero, Jimmie Johnson, and Walnut

Properties, Inc., filed, pursuant to 42 U.S.C. § 1983

(1982), a petition for writ of mandate restraining

criminal actions brought against them by the Long

Beach City Prosecutor. Long Beach had asserted

against each petitioner twelve counts of violation of

Long Beach, Cal., Municipal Code § 21.51.020, the

city's “adult entertainment " zoning ordinance.

Petitioners asserted that the ordinance, as construed

in the criminal complaints, was unconstitutionally

broad inasmuch as the complaints alleged that the

exhibition of a single adult film made the theater an

“adult theater” within the meaning of ordinance.

This court granted the writ. It determined that,

pursuant to controlling authority, the proceedings

against petitioner under the allegations of the

complaint filed in the respondent court subject the

petitioners to a deprivation of rights secured by the

first and fourteenth amendments to the United States

constitution and article |, section 2 of the California

Constitution.

Judgment for Issuance of Peremptory Writ of Mandate

at 2 (Aug. 5, 1987).

The city then sought review by way of a writ of

mandate from the court of appeal to compel this court

to vacate its judgment.’/ The court of appeal denied

the petition on September 9, 1987. On November 18.

1987, the supreme court granted the city's petition for

review, and transferred the case back to the court of

appeal to issue an alternative writ. After argument,

‘] The superior court's grant or denial of

a writ to a municipal court is not appealable, but

is subject to discretionary review by the appellate

court on a petition for a writ. Cal. Civ.

Proc. Code § 904.1(a) (West Supp. 1989).

the court filed its opinion, denying the city's petition.

People v. Superior Court (Lucero), 198 Cal. App. 3d

1038, 244 Cal. Rptr. 502 (1988).

The supreme court again granted review and heard

the case on the merits, with full briefing and

argument. It, too, held the city's "single-use" theory

unconstitutional, and it affirmed the judgement of the

court of appeal. People v. Superior Court (Lucero),

49 Cal. 3d 14, 774 P.2d 769, 259 Cal. Rptr. 740

(1989).

The judgment of this court is now final. Petitioners

accordingly move for attorney's fees against the City

of Long Beach for the case pursuant to the Civil

Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.

§ 1988 (1982).

PETITIONERS, AS PREVAILING PARTIES IN THIS

42 U.S.C. § 1983 PROCEEDING, ARE ENTITLED TO

A FEE AWARD UNDER THE CIVIL RIGHTS

ATTORNEY'S FEES AWARDS ACT, 42 U.S.C. §

1988.

The Civil Rights Attorney's Fees Awards Act of

1976 provides in pertinent part that "[iJn any action or

proceeding to enforce ... section{]... 1983... of

the title . . ., the court, in its discretion, may allow the

prevailing party a reasonable attorney's fee as part of

the costs." 42 U.S.C. § 1988 (1982). The statute

applies in state courts equally as in federal courts.

E.g., Filipino Accountants’ Ass'n v. State Bd. of

Accountancy, 155 Cal. App. 3d 1023, 1031, 204 Cal.

Rptr. 913, 917 (1984).

The legal principles that shape the structure of

section 1988 are well established, and have been

thoroughly considered in California cases.

While section 1988 gives a trial court discretion in

deciding whether to award attorney fees to a

prevailing party, that discretion is narrowly limited.

(Bonnes v. Long (4th Cir. 1979) 599 F.2d 1316,

1318.) The controlling standard is that a prevailing

plaintiff “should ordinarily recover an attorney's fee

unless special circumstances would render such an

award unjust." (Newman __v. Piggie Park Enterprises

(1968) 390 U.S. 400, 402 [19 L. Ed. 2d 1263, 1266,

88 S. Ct 964].) Section 1988 requires a strong

showing of special circumstances to justify denying an

award of attorney fees to the prevailing party in a

section 1983 claim. (Riddle v. National Democratic

Party (5th Cir. 1980) 624 F.2d 539, 543.)

McMahon v. Lopez, 199 Cal. App. 3d 829, 836, 245

Cal. Rptr. 172, 177 (1988). All the statutory requisites

are met here.

First, this proceeding was brought to enforce 42

U.S.C. § 1983 (1982), '/ and therefore is a proper

case for a section 1988 award. The petition

specifically alleged that it was "brought pursuant to 42

U.S.C. § 1983 (1982)," since, "[b]y the underlying

criminal proceedings, petitioners are being subjected

to the deprivation, under color of state law, of rights,

privileges, and immunities secured by the Constitution

of the United States, and particularly the first and

fourteenth amendments." Petition for Writ of

Prohibition and/or Mandate at 2, para. 3. As noted

above, the writ granted by this court specified that the

'/ Section 1983 provides, in pertinent part,

as follows:

"Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State ... subjects, or

causes to. be subjected, any citizen of the

United States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges or immunities secured

by the Constitution and laws, shall be

liable to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress . ."

42 U.S.C. § 1983 (1982), quoted in McMahon v,

Lopez, 199 Cal. App. 3d at 835 n.2, 245 Cal. Rptr.

e¢ i735 2.2.

petitioners were being denied their first and fourteenth

amendment rights, a conclusion upheld by the court of

appeal and the supreme court.

Second, petitioners are clearly the prevailing parties

in this proceeding within the meaning of section 1988.

(Pliaintiffs may be considered "prevailing parties” for

attorney’ fees purposes if they succeed on any

significant issue in litigation which achieves some of

the benefit the parties sought in bringing suit.

sokolow v. County of San Mateo, 213 Cal. App. 3d

231, 242, 261 Cal. Rptr. 520, 529 (1989) (emphasis in

the original) (quoting Hensley v. Eckerhart, 461 U.S.

424, 433, 103 S. Ct. 1933, 1939 (1983)). Here,

petitioners entirely succeeded in achieving the benefit

they sought. The supreme court ultimately held that

each alleged violation in the criminal actions was

“based on the unconstitutional 'single use’ standard,”

and that the city was “not entitled to proceed with the

action as pleaded." People v. Superior Court

(Lucero), 49 Cal. 3d at 28. 774 P. 2d at 777, 259 Cal.

Rptr. at 748.

Finally, there are no "special circumstances" here

that would render a fee award unjust, much jess the

“strong showing" necessary to deny an award to a

prevailing plaintiff. Courts have rejected in carload

lots proffered claims of "special circumstances" in

highly analogous cases. See, e.g., EWAP. Inc. v. City

of Ontario, 177 Cal. App. 3d 1108, 1115-18, 223 Cal.

Rptr. 422, 427-30 (1986) (fee award under section

1988 to "adult" bookstore that succeeded in its

challenge to an “adult uses" zoning ordinance); se

also, e.g., Sokolow v. County of San Mateo, 213 Cal.

App. 3d at 245, 261 Cal. Rptr. at 528 (no special

circumstances where plaintiffs "were successful in

vindicating and enforcing" a "vital constitutional right,"

there, of equal protection).

HI.

"LODESTAR" FEES SHOULD BE AWARDED FOR

ALL TIME EXPENDED BY PETITIONERS'

ATTORNEYS, CALCULATED AT THE ATTORNEYS'

REASONABLE HOURLY RATES.

"The criteria for the calculation of attorney's fees

are the same under both" section 1988 and the state

public interest fee awards act, Cal. Civ. Proc. Code §

1021.5 (West 1987). Green v. Obledo, 161 Cal. App

3d 678, 683, 207 Cal. Rptr. 830, 832 (1984).

"[S]tatutorily authorized fees are computed on the

basis of the reasonable market value of the services

rendered... ." Serrano v. Unruh (Serrano IV)., 32

Cal. 3d 621, 643, 652, P.2d 985, 999, 186 Cal. Rptr.

754, 768 (1982).

The “fundamental” principle in calculating the

amount of the award is to "determine a ‘touchstone’ or

‘lodestar’ figure based on a ‘careful compilation of the

time spent and reasonable hourly compensation for

each attorney . . . involved in the presentation of the

a i ee ee ee

case." Press v. Lucky Stores Inc., 34 Cal. 3d 311,

322, 667 P.2d 704, 710, 193 Cal. Rptr. 900, 906

(1983). (quoting Serrano v. Unruh (Serrano Ill), 20

Cal. 3d 25, 48, 569 P.2d 1303, 1316, 141

Cal. Rptr. 315, 328 (1977)).2/

e/ The court may increase the "lodestar" or

"touchstone" amount "depending on other factors

involved in the lawsuit." Maria P. v. Riles, 43

Cal. 3d 1281, 1294. 743 P.2d 932, 940, 240 Cal.

Rptr. 872, 880 (1987). The facts the trial court

may consider in adjusting the lodestar figure

include

"(1) the novelty and difficulty of

the questions involved, and the skill

displayed in presenting them; (2) the

extent to which the nature of the

litigation precluded other employment

by the attorneys; (3) the contingent

nature of the fee award, both from the

point of view of eventual victory on

the merits and the point of view of

establishing eligibility for an award:

(4) the fact that an award against the

state would ultimately fall upon the

taxpayers; (5) the facts that the

attorneys in question received public

and charitable funding for the purpose

of bringing law suits of the character

here involved; (6) the fact that the

monies awarded inure not te. the

individual benefit of which the

attorneys involved but the

organizations by which they are

employed . >

20 Cal. 3d at 49, 569 P.2d at 1316, 141 Cal. Rptr.

at 328; accord, Serrano III, Maria P., 43 Cal. 3d

at 1294 n.8, 743 P.2d at 940 n.8, 240 Cal. Rptr. at

880 n.8. Petitioners here, however, request only

Thus, “absent special circumstances rendering the

award unjust, fees recoverable under section 1021.5

ordinarily include compensation for all hours

reasonably spent, including those necessary to

establish and defend the fee claim." Serrano IV, 32

Cal. 3d at 639, 652 P.2d at 997, 186 Cal. Retr. at 766

(footnote omitted). These hours should be assessed

at "prevailing hourly rates as the basis for the

reasonable market value of lawyers’ services." Id. at

640, 652 P. 2d at 997, 186 Cal. Rptr. at 766.

In this case, the petitioners have submitted

evidence supporting the hours worked and rates

claimed: Stanley Fleishman, 84.42 hours at $350 per

hour = $29,567 and David Grosz, 82.05 hours at $200

per hour = $16,410. The total lodestar fees are

therefore $45,957. This amount is clearly justified.

the lodestar amount.

The number of hours invested in the proceeding

was reasonable. The case presented important legal

issues, and a need for an expeditious hearing to

preserve the rights of stake. By the time it was over,

it involved hearings and briefs at three levels of the

judicial system. The concentration of effort by

petitioner's counsel was vindicated by the outcome of

the case. "Where a plaintiff has obtained excellent

results, his attorney should recover a fully

compensatory fee. Normaily this will cover all hours

reasonably expended on the litigation, and indeed in

some cases of exceptional success an enhanced

award may be justified." Hensley v. Eckerhart, 461

U.S. 424, 435, 103 S. Ct. 1933, 1940 (1983).

The hourly billing rates of petitioners’ counsel are

also reasonable. These rates are entirely

commensurate with the particularized experience and

expertise of counsel as described in their declarations

100

and in that of Stuart L. Kadison, a former president of

the Los Angeles County Bar Association and

Governor of the California State Bar.

The requested rates of $350 per hour for Mr.

Fleishman and $200 per hour for Mr. Grosz, attorneys

with considerable experience in public law litigation,

are entirely reasonable.

As noted above, under Serrano IV, the time spent

in securing the fee award itself is fully includible in the

calculation on the same basis as time spent of the

merits. Hence petitioners reserve the right to seek

additional compensation for any additional time spent

in meeting opposition to this motion.

Finally, plaintiffs, are also entitled to recover “all

incidental and necessary expenses incurred in

furnishing effective and competent representation.”

122 Cong. Rec. H. 12,160 (daily ed. Oct. 1, 1976)

(remarks of Rep. Drinan). There is “unanimous

101

federal circuit court authority that the attorneys’

reasonable and necessary costs and expenses may

be awarded to a prevailing party pursuant to 42

U.S.C. § 1988." Palmigiano v. Garrahy, 707 F.2d

636, 637 (1st Cir. 1983) (per curiam) (collecting

cases). [A]wards of such costs—costs that are

ordinarily billed to a client—" including, for example,

“telephone calls, postage, air courier and attorney

travel expenses," are “routine under . . fee

Statutes." International Woodworkers Local 3-98 y

Donovan, 769 F.2d 1388, 1392 (9th Cir. 1985).

IV.

CONCLUSION

Attorney's fees should be awarded to petitioners

pursuant to 42 U.S.C. § 1983 (1982) for all time

expended by petitioners’ attorneys at their reasonable

hourly rates and for their out-of-pocket expenses.

102

Dated: October 23, 1989

Respectfully submitted,

Fleishman, Fisher & Moest

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Attorneys for petitioners

103

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

(213) 557-1077

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOSE RONILLO ABOGADO LUCERO, )

JIMMIE JOHNSON and WALNUT

PROPERTIES, snc.,

a California

NO. C632880

Corporation, DECLARATION

OF STANLEY

FLEISHMAN

Petitioners IN SUPPORT

OF MOTION

Vs. FOR

ATTORNEY’S

FEES

LONG BEACH JUDICIAL C)} Bo le

DISTRICT, COUNTY OF LOS § 1988)

ANGELES, STATE OF

CALIFORNIA,

Defendants.

THE PEOPLE OF THE STATE OF

CALIFORNIA

)

MUNICIPAL COURT OF THE )

)

Real Party in Interest. )

)

104

Stanley Fleishman, declares as follows:

1. lam an attorney for petitioners herein and make

this declaration in support of petitioner's motion for

attorney's fees pursuant to 42 U.S.C. § 1988. I have

personal knowledge of the facts stated herein and

could and wouid testify competently thereto if called

upon to do so.

2. | am an attorney at law and am a member of the

bars of the state of California and New York and of

the United States Supreme Court.

3. | am a senior partner in the firm of Fleishman,

Fisher & Moest. | have been the lead attorney in this

matter and have retained the final authority for the

conduct of the case, although David Grosz, a

colleague in my firm, was assigned to handie many

tasks in the case. For most of my practice, | have

specialized in civil rights litigation, with an emphasis

on First Amendment rights and rights of disabled

105

people. While still in New York, | filed an amicus

curiae brief in James v. Marinship Corp., 25 Cal. 2d

721, 155 P.2d 329 (1944), a leading California

Supreme Court civil rights case.

4. | orally argued the following cased in the United

States Supreme Court: Alberts v. California [Roth v.

United States], 345 U.S. 476, 77 S.Ct. 1304 (1957):

Austin v. Kentucky: [Redrup v. New York], 386 U.S.

757, 87 S.Ct. 1414 (1967); Blount v. Rizzi, 400 U.S.

410, 91 S.Ct. 423 (1971): Quantity of Copies of Books

v. Kansas, 378 U.S. 205, 84 $.Ct. 1723 (1964): Smith

v. California, 361 U.S. 147, 80 S.Ct. 215 (1959):

United States v. Thirty-Seven Photographs, 402 U.S.

363, 91 S.Ct. 1400 (1971): Hamling v. United States,

418 U.S. 87, 94 S.Ct. 2887 (1974); Hicks v. Miranda,

422 U.S. 332, 95 S.Ct. 2281 (1975); Kaplan v.

California, 413 U.S. 115, $3 S.Ct. 2680 (1973): See

also, e.g., Carlisle v. Landon, 73 S.Ct. 1179 (Douglas,

106

Circuit Justice, 1953); Stanard v. Olesen, 74 S.Ct. 768

(Douglas, Circuit Justice, 1958).

5. Additionally, | prevailed in the United States

Supreme Court after filing a petition for writ of

certiorari, but before argument, in the following cases:

Aday v. United States, 338 U.S. 447, 87 S.Ct. 2095

(1967): Books, Inc. v. United States, 388 U.S. 449, 87

S.Ct. 2098 (1967); Corinth Publications, Inc v.

Wesberry, 388 U.S. 448, 87 S.Ct. 2096 (1967); Felton

v. Pensacola, 390 U.S. 340, 88 S.Ct. 1098 (1968):

Quantity of Copies Books v. Kansas, 388 U.S. 452, 87

S.Ct. 2104 (1967); Rabeck v. New York, 391 U.S.

462, 88 S.Ct. 1716 (1968): Smith v. California, 375

U.S. 259, 84 S.Ct. 361 (1963).

6. | orally argued the following cases in the California

Supreme Court: Aday v. Superior Court, 55 Cal.2d

789, 13 Cal Rptr. 415 (1961); Burton v. Municipal

Court, 68 Cal.2d 856, 16 Cal.Rptr. 889 (1961); Burton

107

v. Municipal Court, 68 Cal.2d 684, 68 Cal.Rptr. 721

(1968); Flack v. Municipal Court, 66 Cal.2d 981, 59

Cal.Rptr. 872 (1967); Barrows v. Municipal Court, 1

Cal.3d 821, 83 Cal.Rptr. 833 (1971); People v. Rossi,

81 Cal.3d 295, 134 Cal.Rptr. 64 (1976).

7. | argued the case of State v. Jackson, 224 Ore.

337, before the Oregon Supreme Court. | argued the

case of Quantity of Copies of Books v. State, 191

Kan. 13, 379 P.2d 254, before the Kansas Supreme

Court.

8. | argued the following cases, inter alia, in various

United States Courts of Appeals: Toberoff v.

Summerfield, 245 F.2d 360 (9th Cir. 1957): 256 F.2d

(9th Cir. 1958); Oreson v. Standard, 227 F.2d 785

(9th Cir. 1955): Haldeman v. United States, 340 F.2d

99 (10th Cir. 1965); Grant v. United States, 380 F.2d

748 (9th Cir. 1967); Corsican Productions v. Pitchess,

388 F.2d 441 (Sth Cir. 1964); Steiner v. Hocke, 272

108

F.2d 384 (9th Cir. 1959); Luros v. United States, 490

F.2d 76 (5th Cir. 1974); United States v. Outpost Dev.

Co., 552 F.2d 566 (9th Cir. 1977).

9. | appeared as attorney of record in the following

cases, inter alia, in the United States District Courts:

Cinema Classics Ltd. v. Busch, 339 F.Supp. 43 (C.D.

Cal.) (three-judge court), aff'd mem. sub nom. Davis

v. Cinema Classic, Ltd., 409 U.S. 807, 93 S.Ct. 105

(1972): LeBaron v. Olesen, 125 F.Supp. 53 (S.D. Cal.

1954): United States v. Linetsky, Crim. No 39798

(E.D. Mich.); In re Lousiana News Co., 187 F.Supp.

241 (E.D. La. 1960); Barrows v. Reddin, 301 F.Supp.

575 (C.D. Cal. 1971); United States v. Bloom, No.

7144-WJF (C.D. Cal. 1971); Door v. Pitchess, No. 63-

15-PH (C.D. Cal. 1963); Elysium, Inc. v. Olesen, No.

63-385-PH (C.D. Cal. 1963); United States v. Frew,

187 F.Supp. 500 (E.D. Mich. 1960): United States v.

Frew/Laning, Crim. No. 39414 (E.D. Mich. 1963):

109

Alegret v. Arnebergh, Civ. No. 70-170-ALS (C.D. Cal.

1970); United States v. Arno. No. CR 70-224 (D. Ariz.

1971); Rizzi v. Blount, 305 F.Supp. 634 (C.D. Cal.

1969).

10. The cases mentioned in paragraphs 4 and 9

above, are all in the First Amendment field. | also

have extensive experience in litigating matters

involving the rights of disabled people. | am an

adjunct professor of law at Southwestern University

School of Law where | teach a course on

Constitutional Litigation--The Rights of Disabled

People. In connection with that course | co-authored

an unpublished book entitled Manual for Litigation:

Rights of Disabled People. | have actively litigated a

large number of cases involving Section 504 of the

Rehabilitation Act. See, €.g., Kling v. County of Los

Angeles, 633 F.2d 876 (9th Cir. 1980) (Kling 1); Kling

v. County of Los Angeles, 769 F.2d 532 (9th Cir.

110

1985) (Kling Il), rev'd, No. 85-295 (U.S. Nov. 4, 1985);

Pomerantz v. County of Los Angeles, 674 F.2d 1288

(9th Cir. 1982); Rose v. United States Postal Serv.

725 F.2d Adv. Sh. 1250 (9th Cir. 1984); Williams v.

United States, 704 F.2d 1162 (9th Cir. 1983);

California Ass'n of the Physically Handicapped, Inc. v.

FCC, 742 F.2d 667 (9th Cir. 1983); California

Paralyzed Veterans Ass'n v. FCC, 496 F.Supp. 125

(C.D. Cal. 1980); California Ass'n of the Physically

Handicapped, Inv. v. FCC, 778 F.2d 823 (D.C. Cir.

1985): Westside Community for Independent Living v.

QObiedo, 33 Cal.3d 348, 188 Cal.Rptr. 873.

11. | have-kept detailed contemporaneous time

records in this case, true copies of which are attached

to this declaration as Exhibit A and incorporated

herein by this reference. The time reflected on these

records was reasonable and necessary to be

expended in order to represent petitioners in this

111

matter. Among other things, | argued this case in the

Court of Appeal, and briefed and argued it in the

Supreme Court. As set out in the attached time

sheets, my total expenditure of attorney time in this

action, through the date of this declaration, is 84.42

hours. A reasonable rate for my services is $350 per

hour. Accordingly, a reasonable attorney's fee award

in this action for my services would be $29, 547.00.

12. Fleishman, Fisher & Moest has reasonably

expended $1,773.85 in out-of-pocket expenses in this

matter, as set out in the schedule of expenses,

attached hereto as Exhibit B and incorporated herein

by this reference.

13. As set forth above, the firm presently constituted

as Fleishman, Fisher, & Moest emphasizes public

interest law and Particularly specializes in First

Amendment and civil rights issues. The areas of law

which comprise the firm's practice are diverse and

112

include land use and environmental law, immigration,

tax, and freedoms of press, speech and religion. The

firm has litigated in nearly every federal circuit, has

appeared before the United States Supreme Court on

several occasions, and has served as chief counsel

on numerous reported decisions.

14. Accordingly, this court should award reasonable

attorney's fees for my services in the instant case

commensurate with the fees customarily charged for

major Civil litigation services. In my opinion that

amount would be $29,547.00, plus expenses of

$1,773.85.

| declare under penalty of perjury under the laws of

the State of California that the foregoing is true and

correct. Executed this 23rd day of October, 1989, at

Los Angeles, California.

Stanley Fleishman

113

STANLEY FLEISHMAN - ATTORNEY TIMES

020587 044.01F sr .25

Conf. w/DG, RCM re: order for new brief.

070887 044.01F =a 7

Conf. w/SF re possibility of attorney fees.

081187 044.01F SF 17

Conf. w/DG re strategy.

090987 044.01F SF 58

Strategy conference w/BAF on options regarding writ

petition filed by prosecutor.

020988 044. 01F SF 4.25

Conf. w/DG re argument: prep. for argument.

021088 044.01F SF 4.00

Ct. of app. argument.

021888 044.01F SF 33

Conf. w/BAF, DG re request for publication.

033188 044.01F SF .17

Conf. w/DG.

062888 044.01F SF 3.00

Review of record and file.

062988 044.01F SF 3.00

Complete review of record and file.

063088 044.01F SF 7.00

Research - petitioner's cases.

070188 044.01F SF 7.00

Research, federal and state law re: adult zoning.

070588 044 .01F SF 5.00

Research prior restraints and Single showing.

070688 044.01F SF 4.00

Research equal protection and due process.

070788 044.01F SF 3.00

Draft outline of brief.

070888 044.01F SF 5.00

Draft brief.

071188 044.01F SF 6.00

114

Review and edit of brief.

071488 044.01F SF 6.00

Final revision and edit.

071988 044.01F SF 1.00

Final check of brief.

040389 044.01 SF

5.50 Research.

040589 044.01 SF

2.00 Research.

040789 044.01 SF

6.00 Research and preparation for argument.

041089 044.01 SF

6.00 Research and preparation.

041189 044.01 SF

5.00 Preparation and argument.

115

Stanley Fleishman

Barry A. Fisher

Robert C. Moest

David Grosz

Fleishman, Fisher & Moest

2049 Century Park East, Suite 3160

Los Angeles, California 90067

(213) 557-1077

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOSE RONILLO ABOGADO LUCERO

Real Party in Interest.

)

JIMMIE JOHNSON and WALNUT )NO. C632880

PROPERTIES, Inc., )

a California )

Corporation, ) DECLARATION

) OF DAVID

) GROSZ

Petitioners ) IN SUPPORT

) OF MOTION

vs. )

)

MUNICIPAL COURT OF THE )

LONG BEACH JUDICIAL )

DISTRICT, COUNTY OF LOS )

ANGELES, STATE OF )

CALIFORNIA, )

)

Defendants. )

THE PEOPLE OF THE STATE OF )

CALIFORNIA )

)

David Grosz declares as follows:

1. | am an attorney admitted to practice before this

court. | am a member of the firm of Fleishman,

Fisher, & Moest and am one of the attorneys for the

Petitioners in this matter. | researched and drafted

the writ papers filed in the Superior Court, argued the

writ in the Superior Court, prepared the papers

supporting the present motion, and performed

numerous other tasks in connection with the litigation.

2. | have kept detailed contemporaneous time

records in this case, true copies of which are attached

to this declara

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