DeMott v. Board of Police Commissioners

arcade premises were brought into compliance with the requirement that the interior of the booths which comprised the picture arcade were visible and unenclosed.^[2] Shortly thereafter, respondents formed a voluntary unincorporated association which adopted articles of association and bylaws. The association bylaws recite that the physical facilities on the premises of respondents, i.e., the “picture arcade” were owned by the new private association; that membership in the association would be required as a condition for viewing films in the picture arcade. To enroll as a member, one must pay a $1 fee to the clerk in the book store, identify oneself, furnish proof of age and subscribe to the basic philosophy of the association.

The picture arcades described above are fully enclosed booths. Admittance is gained upon display of club membership, payment of $1 fee, deposit of a coin activating the film and signing the statement of philosophy. The trial court concluded that respondents were not required to comply with the ordinance requiring unenclosed booths because their facilities were not offered to the public. Enforcement of the ordinance was enjoined.

Appellants contend the trial court erred by failing to apply the proper legal standard for issuance of injunctions, thereby abusing its discretion.

The general rule applicable to complaints seeking injunctive relief is stated in Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 , 528 [ 67 Cal.Rptr. 761 , 439 P.2d 889 ]: “The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [Citations.] Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; . . .’ [Citations.] In making that determination the court will consider the probability of the plaintiffs ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. [Citations.]” (See also People v. Adult World Bookstore (1980) 108 Cal.App.3d 404 , 408 [ 166 Cal.

Rptr. 519 ].) The trial court, therefore, must decide which party will be injured more by an adverse ruling on an application for a preliminary injunction. That decision, however, “‘rests in the sound discretion of the trial court, and . .. may not be interfered with on appeal, except for an abuse of discretion.’” (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527.) Such abuse of discretion must be clearly shown. (People v. Columbia Research Corp. (1977) 71 Cal.App.3d 607 [ 139 Cal.Rptr. 517 ], cert, den., 434 U.S. 904 [ 54 L.Ed.2d 191 , 98 S.Ct. 302 ].) We conclude that appellants have established the required showing.

The use of injunctions to forestall criminal prosecution has evolved from its initial purpose as an equitable remedy in tort and contract actions. Historically, the injunction served the interests of those who sought immediate judicial intervention against threatened injury. (2 Witkin, Cal. Procedure (2d ed. 1970) Provisional Remedies, § 76.) In more recent times, the injunctive process is invoked to abort threatened prosecution of criminal law, typically a law with First Amendment overtones.^[3] This is true despite the language of Code of Civil Procedure section 526, which forbids issuance of an injunction to prevent the execution of a public statute by an officer of the law for the public benefit. In the City of Santa Monica v. Superior Court (1964) 231 Cal. App.2d 223 , 226 [ 41 Cal.Rptr. 824 ], the court said: “However, we regard it as beyond question that trial courts should be extremely cautious, and even hesitant and reluctant, when asked to enjoin law enforcement officials from enforcing an ordinance obviously approved and adopted by duly elected representatives of the people for the purpose of promoting and protecting public morality prior to a trial on the merits. With all presumptions favoring the validity and constitutionality of the enactments of various legislative bodies, it should be only under extraordinary circumstances that anyone challenging the validity of such a law should immediately be granted the ultimate relief he seeks prior to any trial on the merits.” (See, also 7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42 , 46 [ 115 Cal.Rptr. 746 ].)

Despite this cautionary signal, other courts have more readily invoked the injunctive remedy. (Startrack, Inc. v. County of Los Angeles (1976) 65 Cal.App.3d 453 [ 135 Cal.Rptr. 283 ]; Renba Lil v. Kortz (1976) 65 Cal.App.3d 467 [ 135 Cal.Rptr. 287 ].) Inconsistent results probably occur because the appellate court must review the trial court’s decision to

The court in EWAP upheld the validity of the ordinance in question here stating: “The city has a substantial interest in preventing the kind of dangerous or unlawful conduct, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed. The prohibition of such booths furthers the city’s interest in deterring and detecting the use of the premises for such unlawful activity.”^[4] (EWAP, Inc. v.. City of Los Angeles, supra, 97 Cal.App.3d at p. 190.)

In determining whether to issue the injunction against enforcement of the ordinance, the trial court was bound by the EWAP decision which approved the facial validity of the ordinance. To avoid the express holding of EWAP, respondents argued to the trial court, and to this court, that despite the facial validity of the ordinance, the ordinance threatens First Amendment rights as applied to their picture arcade operation. (Crownover v. Musick (1973) 9 Cal.3d 405 [ 107 Cal.Rptr. 681 , 509 P.2d 497 ].) Indeed, operation of a picture arcade is an activity protected by the First Amendment. (People v. Glaze, supra, 21 Cal. 3d 841 , 846.) When issues of First Amendment import are involved in this context, California courts have also acknowledged the legitimacy of injunctive relief to avoid the potential for censorship from threatened prosecution. (Zeitlin v. Arnebergh (1963) 59 Cal.2d 901 [ 31 Cal.Rptr. 800 , 383 P.2d 152 , 10 A.L.R.3d 707 ].) But the ordinance in question does not attempt to restrict expression of ideas either expressly or by implication. Unlike other questioned forms of free speech, this ordinance is content-neutral. (Young v. American Mini Theatres (1976) 427 U.S. 50 , 63 [ 49 L.Ed.2d 310 , 321-322, 96 S.Ct. 2440 ].) No restriction is imposed upon access to the arcade, nor the content of the film. The ordinance merely requires conformity to its provisions for a visible interior. Since EWAP has already approved this ordinance as a legitimate exercise of police power, the ordinance as applied to respondents’ business is unobjectionable.

Even if respondents are engaged in activity protected by the First Amendment, they are not “immune to regulations which do not impair his exercise of his constitutionally protected rights [citation].” (People v. Perrine, supra, 47 Cal.App.3d 252 , 257.)

Respondents contend irreparable injury will occur if threatened prosecution of their employees is not enjoined. If the ordinance were facially invalid, or invalid as applied, that argument would be meritorious. Because neither ground is tenable, this contention lacks merit. As was said in Austin v. Municipal Court (1979) 89 Cal.App.3d 269 , 272 [ 152 Cal.Rptr. 400 ]: “A vice of the procedure attempted in this case is that misdemeanor charges, which should be tried in the municipal court subject to a review by the appellate department of the superior court, are removed to the superior court for trial in a civil proceeding with appellate review by the Court of Appeal and by petition to the Supreme Court. Such a dislocation of the case load may be justified under extraordinary circumstances, ... but is not an option routinely available to any alleged misdemeanant who would like to by-pass a trial in the municipal court. (See Vinot Enterprises, Inc. v. City of Pasadena (1972) 23 Cal.App.3d 246 [ 100 Cal.Rptr. 217 ]; Scherr v. Municipal Court (1971) 15 Cal.App.3d 930 , 933 [ 93 Cal.Rptr. 556 ]; Pitchess v. Superior Court (1969) 2 Cal.App.3d 644 , 648 [ 83 Cal.Rptr. 41 ]; Manchel v. County of Los Angeles (1966) 245 Cal.App.2d 501 [ 54 Cal.Rptr. 53 ].)”

Respondents contend the ordinance in question does not apply to the picture arcade portion of the premises because the public is not admitted. Section 103.101, subdivision (a) states: “As used in this article, ‘picture arcades’ shall mean any place to which the public is admitted .... ” In their complaint, respondents allege they have converted the picture arcade into an unincorporated association for private film viewing from which the public is excluded. According to the declarations attached to the complaint, the unincorporated association has adopted articles of association and bylaws; requires prospective applicants to sign membership applications which include acknowledgement of and subscription to the goals of the association;^[5] requires display of proper identification before being admitted to the arcade; imposes a $1 cost on membership. Absent compliance with these provisions, no one is admitted to the picture arcade premises. According to respondents, these indicia of membership evidence the private nature of the picture arcades which excludes it from the provisions of the ordinance.

bookstore, the film booths cannot be used. The complete dependence of the arcade upon the bookstore operation belies any claim to an independent operation. The relationship between the two entities is pervasive. Because the bookstore is obviously open to the public, the arcade is merely its appendage and similarly qualifies as a “public place.”

The ordinance in question, however, does not refer to a “public place,” rather the language applies to picture arcades “to which the public is admitted.” Respondents contend the public is excluded from access to the picture arcade and admittance is conditioned upon membership in a private film club,^[6] i.e., an unincorporated association. Despite the nexus between the bookstore and picture arcade, respondents argue that the picture arcade is private and not a “place to which the public is admitted.” This argument presumes that the members of the club constitute a legitimate “association” within the meaning of the law.

The law of unincorporated association is sparse.^[7] In most recorded cases, the term has been construed in the context of litigation determining property rights of members, (Scott v. Donahue (1928) 93 Cal.App. 126 [ 269 P. 455 ]) resolving tax issues (Kindelan v. United States (S.D.Fla. 1964) 233 F.Supp. 557 ) or determining membership under civil rights laws. (United States v. Richberg (5th Cir. 1968) 398 F.2d 523 ; Mills v. Fox (E.D.N.Y. 1976) 421 F.Supp. 519 .) None of these cases are dispositive in the context of this case. In an early California case, Law v. Crist (1940) 41 Cal.App.2d 862 , 865 [ 107 P.2d 953 ], the court said: “‘The usual meaning of the term “association” is an “unincorporated organization composed of a body of men partaking in general form and mode of procedure of the characteristics of a corporation.”’” Corporate resemblance is relevant but not conclusive; Scott v. Donahue, supra, 93 Cal.App. 126 .

Nevertheless, certain general guidelines outlining the contours of an association can be gleaned from decisional law: (1) Evidence that indi