Appendix E — Wiener v. City of National City

APPENDIX E

Case No: D0O10801

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE OF THE STATE OF CALIFORNIA:

THE CITy OF NATIONAL CIty, a Municipal Corporation,

Respondents

Vv.

STEVEN D. WIENER, et al.,

Appellants

Superior Court Case No: 578784

FROM THE SUPERIOR COURT

SAN DIEGO COUNTY

HONORABLE VINCENT P. DI FIGLIA, JUDGE

PETITION FOR REHEARING

George H. Eiser, III, City Attorney

Linda Kaye Harter, Assistant City

Attorney

1243 National City Boulevard

National City, California 91950

Telephone: (619) 336-4220

Attorneys for Respondents

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

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REASONS FOR GRANTING THE REHEARING...

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THE COMMON LAW PUBLIC NUISANCE WAS

PROPERLY BEFORE THIS COURT............

THE COURT’S DECISION DID NOT ADDRESS

THE PETITIONER’S FIRST CAUSE OF AC-

TION, A COMMON LAW PUBLIC NUISANCE

THE JUDGMENT OF THE TRIAL- COURT WAS

THAT CHUCK’S CONSTITUTED A PUBLIC

betel oo oertte wih See ETL OODLE EET eee

THE JUDGMENT SHOULD BE AFFIRMED AS TO

THE COMMON LAW PUBLIC NUISANCE ....

CONCLUSION

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TABLE OF AUTHORITIES

Cases

Brewer v. Simpson (1960) 53 C.2d 567, 583, 2 Cal.Rptr.

PTT errr re eer rere er iS eee

Davey v. Southern Pac. Co. (1897) 116 C. 325, 329,

SEF kod bk BOs Gace sd Fann dtcwccdisiasis

International Assn. of Cleaning and Dye House Workers

v. Landowitz (1942) 20 C.2d 418, 423 ............

Kompf v. Morrison (1946) 73 C.A.2d 284............

Marriage of Mix (1975) 14 C.3d 604, 614 122 Cal.Rptr.

EE eck a Sa 4d ORLA NREUCES SOR OR CRESS EGE LAR?

Statutes

California Civil Code

RESIS ae ne ae EAE eae aE eae

AC Re ee BO Ce Ths WS S6NSk 5 sda okeee

National City Municipal Code

DTT ccch oS cece ake ee Soak che axe beknenkea

Treatises

9 Witkin, California Procedure, Appeal § 259 .........

Rules

California Rules of Court

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D010801

IN THE COURT OF APPEAL

OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT,

DIVISION ONE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Vv.

STEVEN D. WIENER, ET AL.,

Defendant and Appellant.

PETITION FOR REHEARING

To the Honorable Daniel J. Kremer, Presiding Justice, and to the

Honorable Associate Justices of the Court of Appeal in and for

the Fourth Appellate District, Division One:

Petitioner respectfully requests a rehearing from this Honorable

Court in the above-entitled case decided March 26, 1991, pursu-

ant to Rule 27 of the California Rules of Court following a

nonpublished opinion reversing a judgment declaring National

City Municipal Code § 18.69.030 constitutional.

REASONS FOR GRANTING THE REHEARING

The rehearing is requested in order to obtain the court’s ruling

on the first cause of action, the common law public nuisance.

Petitioner is not requesting consideration of any new matter nor

reconsideration of the statutory public nuisance. Petitioner re-

quests the court direct its attention to a matter presented and

briefed to this court i.e. that Chuck’s constituted a common law

public nuisance.

Petitioner requests a rehearing and that a decision on the

appeal be pronounced in all respects because it is vital to the

interests of the parties, to the complete record in this case, and

may operate to affect future litigation.

E2

THE COMMON LAW PUBLIC NUISANCE WAS PROP-

ERLY BEFORE THIS COURT

It is clear all parties acknowledge there are two causes of action

(Appellant’s Opening Brief p. 4, Respondent’s Opening Brief p. 1,

line 26-28 and p. 2, lines 1-5, Decision of this Court p. 1 and p. 2

n. 13.) Appellant’s Opening and Reply Briefs addressed in argu-

ment only the second cause of action, the statutory public

nuisance under National City Municipal Code § 18.69.030.

However, Respondent’s Opening Brief submitted to the court

also addressed the first cause of action, the common law public

nuisance, (p. 10, lines 9-18 and p. 12, lines 14 and 15).

As such, a ruling on the injunction based on the common law

nuisance is under the purview of this court.

THE COURT'S DECISION DID NOT ADDRESS THE PE-

TITIONER’S FIRST CAUSE OF ACTION, A COMMON

LAW PUBLIC NUISANCE

The decision focused on a question of law, the troubling issue of

the constitutionality of the ordinance creating the statutory public

nuisance. The court appropriately considered that issue de novo.

However, the existence of a common law public nuisance, a

question of fact, was not addressed by this court.

THE JUDGMENT OF THE TRIAL COURT WAS THAT

CHUCK’S CONSTITUTED A PUBLIC NUISANCE

The judgment below decreed Chuck’s a public nuisance (C.T.

435, lines 1-8). This court must presume that the evidence and

findings support that judgment. (Kompf v. Morrison (1946) 73

C.A.2d 284), and further that the trial court “based its decision

on appropriate findings and disregarded incorrect or insufficient

ones.” (Brewer v. Simpson (1960) 53 C.2d 567, 583, 2 Cal.Rptr.

609, 616.)

While it can be argued that the trial court’s ruling on

§ 18.69.030 obviated the necessity for a specific ruling on the

common law nuisance, it is equally persuasive that the court did

render judgment based in part on that cause of action and did in

eC en A EB tds ne a, tat At ae aR a carinii iat. nom. ts” ra

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E3

fact find Chuck’s to be a common law public nuisance. (R.T.

p. 389 line 14, C.T. p. 391 line 28.)

That being the case, that factual finding should be sustained if

there is any substantial evidence to support it. Marriage of Mix

(1975) 14 C.3d 604, 614 122 Cal.Rptr. 79, 85.

In its decision this court said, inter alia,

“The evidence showed the deleterious effects of Chuck’s

operation on the adjacent neighborhood.” (p. 7)

The above is the gravamen of a public nuisance under Civil

Code §§ 3479 and 3480 and makes it clear the court did find

substantial evidence to support the trial court’s determination.

THE JUDGMENT SHOULD BE AFFIRMED AS TO THE

COMMON LAW PUBLIC NUISANCE

If the decision of the lower court is right, the judgment or order

will be affirmed regardless of the correctness of the grounds upon

which the court reached its conclusion. 9 Witkin, California

Procedure, Appeal § 259.

“The fact that the action of the court may have been based

upon an erroneous theory of the case, or upon an improper or

unsound course of reasoning, cannot determine the question

of its propriety. No rule of decision is better or more firmly

established by authority, nor one resting upon a sounder basis

of reason and propriety, than that a ruling or decision, itself

correct in law, will not be disturbed on appeal merely

because given for a wrong reason. If right upon any theory of

the law applicable to the case, it must be sustained regardless

of the considerations which may have moved the trial court

to its conclusion.” Davey v. Southern Pac. Co. (1897) 116 C.

325, 329, 48 p. 117. International Assn. of Cleaning and Dye

House Workers v. Landowitz (1942) 20 C.2d 418, 423.

E4

If the lower court’s decision was correct on any legal ground, it

will be affirmed even if the reasons cited are wrong. West Pico

Furniture v. Superior Court (1961) 56 C.2d 407 (improper

constitutional standard used to determine grant of summary

judgment deemed irrelevant, when grant was proper under correct

standard. )

The trial court’s judgment granted the injunction because

Chuck’s constituted a public nuisance. This court’s reversal of one

of the bases for that injunction should not result in a reversal of

the entire judgment.

CONCLUSION

Therefore, petitioner respectfully requests that a rehearing be

granted and this Court reconsider and modify its decision in this

case to reflect the following: that the judgment granting the

injunction in this case be affirmed in part, as to the common law

public nuisance, and reversed in part, as to the statutory nuisance.

Dated: April , 1991

LINDA KAYE HARTER

Assistant City Attorney

Attorney for Respondents

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APPENDIX F

Case No. D010801

In The

SUPREME COURT OF CALIFORNIA

THE PEOPLE OF THE STATE OF CALIFORNIA;

THE CITy OF NATIONAL City,

a Municipal Corporation,

Plaintiffs and Appellants

VS.

STEVEN D. WIENER; STEVEN D. WIENER

DBA CHUCK’S BOOKSTORE; PATRICIA

SANDERS; DOES 1-30, inclusive

Defendants and Respondents

Appeal from the Superior Court of San Diego County

Honorable Vincent P. DiFiglia, Judge

PETITION FOR REVIEW

GEORGE H. EISER, III,

City Attorney

LINDA KAYE HARTER,

Asst. City Attorney

CITY OF NATIONAL CITY

1243 National City Boulevard

National City, California 91950

(619) 336-4220

Attorneys for Appellants

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TABLE OF CONTENTS

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DISCUSSION

(1)

(2)

(3)

DID THE COURT OF APPEAL RULING CON-

TRADICT EXISTING CASE LAW RELATING

TO THE REGULATION OF CONDUCT PRO-

TECTED BY THE FIRST AMENDMENT?.....

IS NATIONAL CITY’S “DISPERSAL” TYPE

ZONING ORDINANCE UNCONSTITU-

RTNUEEE oS kc Catt Wace cctbchadewweasees aces

DID THE COURT OF APPEAL ERR IN FAIL-

ING TO UPHOLD THE INJUNCTION

GRANTED BY THE TRIAL COURT, BASED

ON THE FIRST CAUSE OF ACTION A COM-

MON LAW PUBLIC NUISANCE?............

A. THE COMMON LAW PUBLIC NUISANCE

WAS PROPERLY BEFORE THE COURT

ST MEY Wb 6064066 0b0564600004002406

B. THE COURT'S DECISION DID NOT AD-

DRESS THE PETITIONER’S' FIRST

CAUSE OF ACTION, A COMMON LAW

PU SUMED sos isecsseedecsceres

C. THE JUDGMENT OF THE TRIAL COURT

WAS THAT CHUCK’S CONSTITUTED A

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D. THE JUDGMENT SHOULD BE AF-

FIRMED AS TO THE COMMON LAW

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(4) PENDING REVIEW SHOULD THE INJUNC-

Be err eee Tee rer TT ree

A. THE FIRST AMENDMENT DOES NOT

PRECLUDE ISSUANCE OF AN INJUNC-

TION AGAINST AN ACTIVITY WHICH

CONSTITUTES A NUISANCE OR A VIO-

LATION OF ZONING LAWS ............

PLAINTIFFS ARE NOT SEEKING TO

COMPEL DEFENDANTS TO PERFORM

AFFIRMATIVE ACTS, BUT TO REFRAIN

FROM COMMITTING UNLAWFUL ACTS.

IN SUCH A CASE, THE COURT HAS

BROAD DISCRETION TO GRANT AN IN-

DEEE Se hvscchaaecassheahs Vanesa seks

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10

Fili

TABLE OF AUTHORITIES

Cases

Page

Brewer v. Simpson (1960) 53 C.2d 567, 583, 2 Cal Rptr.

es ee ea Gun yk Samah aah odes 9

Castner v. City of Oakland (1982) 129 Cal.App.3d 94, 180

a. ttc e ince hs bw sche 60 bes vada Rahs 7, 10

City of Vallejo v. Adult Books (1985) 167 Cal.App.3d

PTT eee Tre rT eeeT 7, 10

Davey v. Southern Pac. Co. (1897) 116 C. 325, 329,

TI ee ha eat en Genin ih 040-84 40'04 050 0605 6 10

International Assn. of Cleaning and Dye House Workers v.

Landowitz (1942) 20 C.2d 418, 423 ............ ‘3 10

Kompf-v. Morrison (1946) 73 C.A.2d 284............. 9

Marriage of Mix (1975) 14 C.3d 604, 614 122 Cal Rptr.

EE ae rn 9

Ohaver v. Fenech (1928) 206 Cal. 118, 273 P. 555, 558 1]

People v. Columbia Research Corp. (1977) 71 Cal.App.3d

Sy e 11

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

cea W ig teevavevees 3, 4, 5, 6, 10, 12

Riviello v. Journeymen Barbers, Etc. (1948) 88

Cees Gee, ISP F.Be GOD ow. cc cece cecees 12

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

Cal.App.3d 882, 200 Cal.Rptr. 47 .................. 7, 10

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

Cal.App.3d 1018, 161 Cal.Rptr. 411 ................ 7,10

West Pico Furniture v. Superior Court (1961) 56 C.2d 407 10

Young v. American Mini Theaters, 427 U.S. 50 at 78, 49

ee eee te te vecens 4,5, 6, 12

Zahn v. Bd. of Public Works, 274 U.S. 325 (1927) .....

Fiv

TABLE OF AUTHORITIES

Constitution

Page

Pe ee ean es hhae ee bauenes 12

POUTUIORER AMRORGIIOUE 6 onocs bic cecccccdccccacess 12

Statutes

California Civil Code

SEE LUNG ak UeKA ee oak heer ke dees we teawanede’ 2,9, 11

DLE CUGULL CAME CA Gee hae ine kedeh sk aes eeekees 2,9

National City Municipal Code

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I er ee er ee eee ee ree 5,8

Treatises

9 Witkin, California Procedure, Appeal § 259 .......... 9

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Case No. D010801

In The

SUPREME COURT OF CALIFORNIA

THE PEOPLE OF THE STATE OF CALIFORNIA;

THE City OF NATIONAL ClIrTy,

a Municipal Corporation,

Plaintiffs and Appellants

VS.

STEVEN D. WIENER; STEVEN D. WIENER

dba CHUCK’S BOOKSTORE; PATRICIA SANDERS;

DOES 1-30, inclusive

Defendants and Respondents

Appeal from the Superior Court of San Diego County

Honorable Vincent P. DiFiglia, Judge

PETITION FOR REVIEW

F2

ISSUES PRESENTED

1. Did the Court of Appeal ruling contradict existing case law,

relating to the regulation of conduct protected by the First

Amendment?

2. Is National City’s ‘“‘dispersal’’ type ordinance

unconstitutional?

3. Did the Court of Appeal err in failing to uphold the

injunction granted by the trial court, based on the first cause of

action, a common law public nuisance?

4. Pending review should the injunction remain?

INTRODUCTION

This case involves an adult entertainment establishment known

as Chuck’s Books. It retails adult books, sexual paraphernalia and

houses several peep show devices. In 1986 Chuck’s opened its

doors without benefit of an occupancy permit, sign permit or

business license. The patrons of Chuck’s engaged in sex in the

peep booths, loitered in the alley located behind Chuck’s and

generally annoyed and disturbed residents. The location of

Chuck’s is within 1,000 feet of a residential zone, within 1,500

feet of an existing adult business, the Pussycat Theater, and

within 1,500 feet of a park, all in violation of National City

Municipal Code Section 18.69.030, a zoning ordinance.

Thereafter the City brought an action to enjoin the operation of

Chuck’s, alleging two causes of action. The first cause of action

alleged a common law public nuisance under Civil Code Sections

3479 and 3480 in that Chuck’s unlawfully “interferes with and is

injurious to the orderly and planned use of land resources, is

indecent or offensive to the senses, and obstructs the free use of

property so as to interfere with the comfortable enjoyment of life

or property.”

The second cause of action alleged a statutory public nuisance

in that Chuck’s violated the distance requirements of the City’s

zoning ordinance.

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F3

At the trial Chuck’s challenged the zoning ordinance as being

overly restrictive and unconstitutional. In a 16 page statement of

decision the trial court ruled the ordinance constitutional, de-

clared Chuck’s to be a public nuisance and granted the injunction.

A year and one-half later the Fourth District Court of Appeal,

although citing the same cases relied on by the trial court,

reversed the judgment, and declared the ordinance unconstitu-

tionally restrictive. The Court did not address the first cause of

action.

A request for re-hearing to obtain a ruling on the first cause of

action was denied without comment.

A review by the Supreme Court is necessary in this case to

reconcile the Court of Appeal’s ruling with existing case law, and

to pronounce a decision in all respects for this lawsuit.

(1)

DID THE COURT OF APPEAL RULING CONTRADICT

EXISTING CASE LAW RELATING TO THE REGULA-

TION OF CONDUCT PROTECTED BY THE FIRST

AMENDMENT?

The law is clear that cities may impose valid time, place and

manner limits on adult entertainment businesses, as long as the

limits (1) are designed to serve a substantial governmental

interest and (2) do not “unreasonably limit alternative avenues of

communication.” (Renton v. Playtime Theatres, Inc. (1986) 475

US. 41, 46-47, 89 L.Ed. 29.)

Evidence admitted in the instant case fulfilled the first consid-

eration in Renton. As to the second consideration, Chuck’s

alleged that the high cost of new construction precluded them

from relocating to another available, legally zoned location and

landlords of existing buildings refused to rent to them, thus they

were unreasonably limited.

The Court of Appeal, after a thoughtful discussion, agreed,

saying “[w]Je infer such an endeavor would not be economically

F4

feasible for the typical adult business entrepreneur.” (Opinion

p. 14)

The Court below made this inference, even though there was

no direct evidence that the alternative of relocating was not

economically viable, and in the face of the ruling in Renton that

“(t]he inquiry for First Amendment purposes is not concerned

with economic impact” (emphasis added). Young v. American

Mini Theaters, 427 U.S. 50 at 78, 49 L.Ed. 2d 310.)

Both the Federal and State courts have considered the issue of

“commercial viability” and have concluded:

“That respondents [adult businesses] must fend for them-

selves in the real estate market, on an equal footing with

other prospective purchasers and lessees, does not give rise to

a First Amendment violation.

“.... 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.” (Renton at

p. 53.)

Addressing the very same issue in Young, Ibid at 78, the court

said:

“The constraints of the ordinance with respect to location

may indeed create economic loss for some who are engaged

in this business. But in this respect they are affected no

differently from any other commercial enterprise that suffers

economic detriment as a result of land-use regulation. The

cases are legion that sustained zoning against claims of

serious economic damage.” See e.g. Zahn v. Bd. of Public

Works, 274 U.S. 325 (1927) (Young at 78).

The “impediments to Chuck’s relocation” the Court of Appeal

alluded to (Opinion p.13) are impediments imposed by geogra-

phy and the free marketplace, not by governmental action.

The Court of Appeal decision in this case contradicts existing

case law in this area thus requiring Supreme Court review.

F5

(2)

IS NATIONAL CITY’S “DISPERSAL” TYPE ZONING

ORDINANCE UNCONSTITUTIONAL?

The purpose of the distance requirements contained in Section

18.69.030 is set forth in Section 18.69.010 as follows:

“A. It is the purpose of this chapter to establish reasona-

ble and uniform regulations to prevent the continued concen-

tration of adult entertainment establishments, as defined

herein, within the city of National City.

“B. It is the intent of this chapter that these regulations

be utilized to prevent problems of blight and deterioration

which accompany and are brought about by the concentra-

tion of adult entertainment establishments.”

The use of “dispersal” regulations to prevent the concentration

of adult businesses has been sanctioned by the United States

Supreme Court. (Young; Renton, Ibid.)

In Renton, supra, appellees, the owners of adult theaters,

sought declaratory and injunctive relief on First and Fourteenth

Amendment grounds against a zoning ordinance of the City of

Renton, Washington, which prohibited adult theaters frem locat-

ing within 1,000 feet of any residential zone, dwelling church,

park or school. In a decision rendered on February 25, 1986, the

United States Supreme Court, with two justices dissenting, up-

held the validity of the Renton ordinance.

In analyzing the Renton ordinance, the Supreme Court recog-

nized that the ordinance treated theaters that specialize in adult

films differently from other kinds of theaters. However, the court

found that where the municipality’s “predominate” concerns were

with the secondary effects of adult theaters, and not with the

content of adult films themselves, the ordinance will be upheld as

furthering the city’s valid zoning interests and will not be consid-

ered a suppression of free expression. (Renton, 89 L.Ed. 2d at

pp. 37-38.) Where a zoning ordinance is designed to combat the

undesirable secondary effects of adult businesses, the ordinance is

to be reviewed under the standard applicable to “content-neutral”

time, place, and manner regulations, namely, whether the ordi-

F6

nance is designed to serve a substantial governmental interest and

allows for reasonable alternative avenues of communication.

(Renton, 89 L.Ed. 2d at pp. 38-39.)

In the case of Renton ordinance, the Supreme Court found that

a city’s “interest in attempting to preserve the quality of urban

life” is a sufficient governmental interest to justify the enactment

of the ordinance. (Renton, 89 L.Ed. 2d at p. 39.) The Court

further held that a city, in enacting such an ordinance, is not

required to conduct new studies or produce evidence independent

of that generated by other cities, but may rely on the experience

of other cities with respect to the effects of adult theaters and the

need for adoption of laws to regulate them. (Renton, 89 L.Ed. 2d

at p. 40.)

The Court in Renton also held that a city may regulate adult

theaters by dispersing them, as in Detroit (Young, Ibid.), or by

concentrating them, as in Renton.

“It is not our function to appraise the wisdom of [the

city’s] decision to require adult theaters to be separated

rather than concentrated in the same areas... [T]he city

must be allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.” (Citing Young v.

American Mini Theatres, 49 L.Ed. 2d 41.)

The final issue addressed by the Renton Court was whether the

ordinance allowed for reasonable alternative avenues of commu-

nication. The Court found that over five percent of the land area

of Renton was open to use as adult theater sites. Although the

theater owners agreed that there were virtually no “commercially

viable” sites for adult theaters in Renton, the Court made the

landmark statement

“that respondents must fend for themselves in the real estate

market, on an equal footing with other prospective purchas-

ers and lessees, does not give rise to a First Amendment

violation. ... the First Amendment requires only that Ren-

ton refrain from effectively denying respondents a reasonable

opportunity to open and operate an adult theater within the

city.” (Renton, 89 L.Ed. 2d at p. 42.)

ta ee Se Ee PT ae

F7

The California courts have also upheld municipal ordinances

imposing distance requirements upon adult entertainment estab-

lishments. An adult entertainment ordinance substantially the

same as Chapter 18.69 of the National City Municipal was

validated in Walnut Properties v. Long Beach City Council

(1980) 100 Cal.App.3d 1018, 161 Cal.Rptr. 411.) In that deci-

sion, the Court rejected the theater operator’s contention that the

city could not create zoning regulations applicable to theaters

based on the content of films exhibited therein. The Fourth

District Court of Appeal upheld an adult entertainment ordinance

in Castner v. City of Oakland (1982) 129 Cal.App.3d 94, 180

Cal.Rptr. 682, wherein the ordinance of the City of Oakland was

challenged on constitutional grounds by the operator of an adult

bookstore. In Strand Property Corp. v. Municipal Court (1983)

148 Cal.App.3d 882, 200 Cal.Rptr. 47, the Fourth District upheld

the validity of the dispersal ordinance of the City of San Diego

against the constitutional challenge of the owner of an adult

theater. The San Diego ordinance reviewed in Strand is nearly

identical to Chapter 18.69 of the National City Municipal Code.

In City of Vallejo v. Adult Books (1985) 167 Cal.App.3d 1169,

213 Cal.Rptr. 143, the First District Court of Appeal upheld a

dispersal ordinance which imposed distance requirements upon

adult businesses, and allowed such businesses to be located in

only these zoning districts. Although the practical effect of the

Vallejo ordinance was to impose “considerable economic diffi-

culty” upon locating an adult business in the city, the court

concluded that there was no unconstitutional restriction upon

access to adult material.

The National City dispersal ordinance is one that satisfies both

prongs of Renton, and has passed constitutional muster in other

cities. Its constitutionality needs to be addressed by the Supreme

Court.

F8

(3)

DID THE COURT OF APPEAL ERR IN FAILING TO

UPHOLD THE INJUNCTION GRANTED BY THE

TRIAL COURT, BASED ON THE FIRST CAUSE OF

ACTION A COMMON LAW PUBLIC NUISANCE?

A. THE COMMON LAW PUBLIC NUISANCE WAS

PROPERLY BEFORE THE COURT OF APPEAL

It is clear all parties acknowledge there are two causes of action

(Appellant’s Opening Brief p. 4, Respondent’s Opening Brief p. 1,

lines 26-28 and p. 2, lines 1-5, Opinion of the Court of Appeal p. 1

and p. 2 n. 13.) Chuck’s Opening and Reply Briefs addressed in

argument only the second cause of action, the statutory public

nuisance under National City Municipal Code Section 18.69.030.

However, the City’s Opening Brief submitted to the court also

addressed the first cause of action, the common law public

nuisance, (p. 10, lines 9-18 and p. 12, lines 14 and 15).

As such, a ruling on the injunction based on the common law

nuisance was under the purview of that court.

B. THE COURT’S DECISION DID NOT ADDRESS THE

PETITIONER’S FIRST CAUSE OF ACTION, A COM-

MON LAW PUBLIC NUISANCE

The written decision focused on a question of law, the issue of

the constitutionality of the ordinance creating the statutory public

nuisance. The court appropriately considered that issue de novo.

However, the existence of a common law public nuisance, a

question of fact, was not addressed by the court.

Several witnesses at the trial testified to the offensive goings on,

in and around Chuck’s, and how the activity interfered with their

property rights. Their testimony was recited in the trial court’s

Statement of Decision. For the Court of Appeal to omit an issue

briefed to them, and thereafter to deny a rehearing to include it, is

error. It leaves the parties with an incomplete resolution to a

lawsuit; a lawsuit that each side has pursued for over four years.

F9

C. THE JUDGMENT OF THE TRIAL COURT WAS

THAT CHUCK’S CONSTITUTED A_ PUBLIC

NUISANCE

The judgment of the trial court decreed Chuck’s a public

nuisance (C.T. 435, lines 1-8). This court must presume that the

evidence and findings support that judgment. (Kompf v. Morrison

(1946) 73 C.A.2d 284), and further that the trial court “based its

decision on appropriate findings and disregarded incorrect or

insufficient ones.” (Brewer v. Simpson (1960) 53 C.2d 567, 583,

2 Cal.Rptr. 609, 616.)

While it can be argued that the trial court’s ruling on Section

18.69.030 obviated the necessity for a specific ruling on the

common law nuisance, it is equally persuasive that the court did

render judgment based in part on that cause of action and did in

fact find Chuck’s to be a common law public nuisance. (R.T.

p. 389 line 14, C.T. p. 391 line 28.)

That being the case, the factual finding should be sustained if

there is any substantial evidence to support it. Marriage of Mix

(1975) 14 C.3d 604, 614 122 Cal.Rptr. 79, 85.

In its decision the Court of Appeal said, inter alia, “(t]he

evidence showed the deleterious effects of Chuck’s operation on

the adjacent neighborhood.” (p. 7)

The above is the very essence of a public nuisance under Civil

Code Sections 3479 and 3480 and makes it clear the Court of

Appeal did find substantial evidence to support the trial court’s

determination.

D. THE JUDGMENT SHOULD BE AFFIRMED AS TO

THE COMMON LAW PUBLIC NUISANCE

If the decision of the lower court is right, the judgment or order

will be affirmed regardless of the correctness of the grounds upon

which the court reached its conclusion. 9 Witkin, California

Procedure, Appeal § 259.

“The fact that the action of the court may have been based

upon an erroneous theory of the case, or upon an improper or

unsound course of reasoning, cannot determine the question

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of its propriety. No rule of decision is better or more firmly

established by authority, nor one resting upon a sounder basis

of reason and propriety, than that a ruling or decision, itself

correct in law, will not be disturbed on appeal merely

because given for a wrong reason. If right upon any theory of

the law applicable to the case, it must be sustained regardless

of the considerations which may have moved the trial court

to its conclusion.” Davey v. Southern Pac. Co. (1897) 116 C.

325, 329, 48 p. 117. International Assn. of Cleaning and Dye

House Workers v. Landowitz (1942) 20 C.2d 418, 423.

If the lower court’s decision was correct on any legal ground, it

will be affirmed even if the reasons cited are wrong. West Pico

Furniture v. Superior Court (1961) 56 C.2d 407 (improper

constitutional standard used to determine grant of summary

judgment deemed irrelevant, when grant was proper under correct

standard. )

The trial court’s judgment granted the injunction because

Chuck’s constituted a public nuisance. The Court of Appeal’s

reversal of one of the bases for that injunction should not have

resulted in a reversal of the entire judgment.

(4)

PENDING REVIEW SHOULD THE INJUNCTION

REMAIN?

A. THE FIRST AMENDMENT DOES NOT PRECLUDE

ISSUANCE OF AN INJUNCTION AGAINST AN AC-

TIVITY WHICH CONSTITUTES A NUISANCE OR A

VIOLATION OF ZONING LAWS

As already pointed out, the purpose of the National City adult

entertainment ordinance is not to interfere with or suppress

activities protected by the First Amendment, but to further

legitimate zoning interests by eliminating the negative secondary

effects of adult businesses. This type of regulation has been

sanctioned by the courts. (Renton; Walnut Properties; Castner;

Strand; City of Vallejo; Ibid.)

ae tet re ee

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The fact that defendants’ business is a bookstore does not

entitle defendants to operate that business when it constitutes a

common law nuisance. Defendants’ business generates excessive

noise, their customers annoy and harass adjacent residents, and

the business may properly be enjoined. While great protection is

afforded First Amendment rights, the residents who live in

proximity to defendants’ adult bookstore are also entitled to

protection.

To paraphrase the language of Civil Code Section 3479, the

offensive comments directed to residents by the loitering custom-

ers of Chuck’s Bookstore, together with the noise generated by

the bookstore, are “indecent or offensive to the sense,” constitute

an “obstruction to the free use of property”, and interfere “with

the comfortable enjoyment of life or property.”

“There can be no balancing of conveniences when such

balancing involves the preservation of an established right,

though possessed by a peasant only to a cottage as his home,

and which will be extinguished if relief is not granted against

one who would destroy it artificially using his own land.”

(Ohaver v. Fenech (1928) 206 Cal. 118, 273 P. 555, 558).

B. PLAINTIFFS ARE NOT SEEKING TO COMPEL DE-

FENDANTS TO PERFORM AFFIRMATIVE ACTS,

BUT TO REFRAIN FROM COMMITTING UNLAW-

FUL ACTS. IN SUCH A CASE, THE COURT HAS

BROAD DISCRETION TO GRANT AN INJUNCTION.

Where an attempt is made by a plaintiff to compel the

defendant to perform affirmative acts, the court may be reluctant

to grant relief. However, the court’s discretion to grant prohibitory

relief, such as that sought in the instant case, is much broader.

In People v. Columbia Research Corp. (1977) 71 Cal.App.3d

607, 139 Cal.Rptr. 517, the court upheld the trial court’s issuance

of a preliminary injunction restraining defendants from engaging

in certain promotional practices pertaining to their mail order

business. The court expressly rejected defendants’ contention that

the injunction constituted an impermissible restriction upon free

speech.

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In Riviello v. Journeymen Barbers, Etc. (1948) 88 Cal.App.2d

499, 199 P.2d 400, the court of appeal reversed the trial court’s

denial of a preliminary injunction against defendants’ picketing of

plaintiffs’ barber shop.

CONCLUSION

The Court of Appeal’s decision conflicts with Renton and

Young, the benchmark cases in this area of first amendment

protected speech.

Ordinances nearly identical to the National City ordinance

have survived all manner of constitutional attacks, including those

based on the First and Fourteenth Amendments.

The injunction granted by the trial court was based on Chuck’s

being “‘a public nuisance.” The Court of Appeal failed to issue a

ruling on the common law public nuisance, a matter briefed and

submitted to them.

Because of the inchoate quality of the Court of Appeal decision

the Supreme Court should allow the injunction to remain, pend-

ing a review of this important and timely issue: To what extent

can cities set limits on first amendment protected speech, in order

to protect the quality of urban life within their borders?

Dated: May 3, 1991

LINDA KAYE HARTER

Assistant City Attorney

Attorney for Plaintiffs/Appellants