Adult Film Association v. Times Mirror Co.

Opinion

KINGSLEY, J.

Plaintiffs appeal from an order dismissing their first amended complaint after an order sustaining with leave to amend, a demurrer to that complaint and an order striking the third cause of action therein for sham. We affirm the order.

Plaintiffs are producers and exhibitors of what their complaint characterizes as “sexually explicit motion picture films” and an association of such producers and exhibitors. The complaint before us alleges three causes of action: (1) for intentional interference with contractual relationships with the customers; (2) for a similar interference with relationships between plaintiffs and other newspapers; and (3) a conspiracy between defendant newspaper and other producers and exhibitors of similar films to interfere with plaintiffs’ relationships with their customers by refusing advertisements by plaintiffs while publishing advertisements by such other producers and exhibitors.

[80]

The litigation grows out of the decision by defendant to refuse future advertisements of plaintiffs’ films. Since plaintiffs elected not to amend further, their complaint must, in this court, stand or fall on the allegations made therein. We so treat it.

I

In addition to a demurrer to the third cause of action, alleging a conspiracy, defendant interposed a motion to strike that cause of action as being sham. That motion was supported by a declaration, never contradicted, by the publisher of defendant, to the effect that the decision to refuse advertisments by plaintiffs was his own editorial decision, made without any agreement between defendant and another newspaper or other prospective advertiser. Standing, thus, uncontradicted, the declaration was adequate to sustain the order striking the conspiracy claim.

In

Pianka

v.

State of California

(1956) 46 Cal.2d 208 [293 P.2d 458], the Supreme Court held that the adoption of section 437c of the Code of Civil Procedure superseded the judicially recognized motion to strike as sham and became the sole procedure by which a pleading could be attacked on that ground. However, in repeating its adherence to that rule, the court in