People v. Mitchell

California Court of Appeal Nov 30, 1976 No. Civ. 48574Published

Before: Thompson

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Holding. A trial court lacks the authority under the Red Light Abatement Law to order the closure of a property as a preliminary injunction, as such relief is reserved for a final judgment on the merits. Provisional remedies under the statute are limited to measures necessary to prevent the continuation or recurrence of the nuisance.

Issues

Whether the Red Light Abatement Law applies to a motion picture theatre where patrons engage in lewd acts.
Whether a trial court may order the closure of a property via a preliminary injunction under the Red Light Abatement Law.

Disposition. reversed

Quotations verified verbatim against the opinion

“Concluding that the relief is appropriate only in a judgment on the merits and not by provisional remedy, we reverse the order granting a preliminary injunction.”

“Penal Code section 11227 empowers the court to grant provisional relief only “to abate and prevent the continuance or recurrence of such nuisance.””

“the former must be construed as not permitting closure as a provisional remedy unless closure is necessary to prevent the continuing or recurring statutory nuisance.”

Opinion

THOMPSON, J.

This appeal, while broadly framed, primarily presents the narrow issue of the power of a trial court acting on a petition filed under the Red Light Abatement Law to grant relief by preliminary injunction, effectively closing the property claimed to be a nuisance. Concluding that the relief is appropriate only in a judgment on the merits and not by provisional remedy, we reverse the order granting a preliminary injunction.

Four Star Theatre is a theatre and related property located on Wilshire Boulevard

in Los

Angeles. The property is leased by its owners to United Artists Theatres of California, Inc., and subleased by United Artists to James and Artie Mitchell and corporations controlled by them. The sublease calls for rent of $48,000 per year, runs to August 30, 1977, is for the purpose of conducting a theatre, covers furniture, fixtures and equipment, and vests the right of possession in the sublessee.

The Mitchell group operates the theatre, catering to devotees of “X-rated” films. During the calendar year 1974, officers of the Los

Angeles

Police Department observed over 30 acts of public masturbation by patrons of the theatre. Employees of the Mitchell group were instructed to cause a warning of the presence of officers in the theatre to be flashed on the screen whenever their presence was known. While ushers sometimes patrolled the aisles, the patrol was sporadic at best except when police officers were known to be present.

The City Attorney of Los Angeles and the district attorney of the county filed an action under the Red Light Abatement Law (Pen. Code,

[339]

§§ 11225-11235) to abate the operation of the theatre as a statutory nuisance. The action names the lessors, United Artists, and the Mitchell group as defendants. Accepting declarations filed by the plaintiffs establishing the facts we have recited in this opinion and rejecting defendants’ declarations to the effect that the Mitchell group had not encouraged or condoned the conduct of the patrons, the trial court issued a preliminary injunction on plaintiffs’ motion.

People v. Mitchell

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THOMPSON, J.

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