Harmer v. Tonylyn Productions, Inc.

23 Cal. App. 3d 941, 100 Cal. Rptr. 576, 50 A.L.R. 3d 959, 1972 Cal. App. LEXIS 1269

• Court: California Court of Appeal
• Decided: March 2, 1972
• Docket: Civ. 38114
• Status: Published

Opinions

Opinion

ROTH, P. J.

This appeal is from a judgment based upon a ruling sustaining a demurrer to the first amended complaint without leave to amend. Plaintiffs, six individuals, seek an injunction to prevent the exhibition in a closed theater of a motion picture “Without a Stitch” (film) and to abate it as a public nuisance.¹

The complaint is directed against defendants (Tonylyn Productions, Loew’s California Theatres, Harris, Sher and four Does.) The film involved is a singularly inartful cinematic effort, which, if the factual allegations of the complaint are to- be taken as true, as they must be, depicts sexual activity including, but not limited to, sexual intercourse, lesbianism and sodomy.

The complaint is premised on the theories of public nuisance and the provisions of the Red Light Abatement Law (Pen. Code, § 11225 et seq.).

We conclude that the judgment must be affirmed.

Plaintiffs do not allege the damages special to themselves required to show that the nuisance, assuming it is such, is a public nuisance to enable them as private citizens to' enjoin or abate it within the meaning of Civil Code section 3480. Further, we find that the provisions of the Red Light Abatement Law do not extend to motion pictures.

Section 3480 of the Civil Code defines a public nuisance as follows: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”²

The film involved was shown only in a closed theatre. Only those persons could view it who had paid the admission price and who had entered the theatre. Thus, only those members of the community were exposed to the film who voluntarily chose to see it. This is not a case where the community as a whole is forced to submit involuntarily to vile odors (Fisher v. Zumwalt, 128 Cal. 493 [61 P. 82]) or air pollution (Wade v. Campbell, 200 Cal.App.2d 54 [19 Cal.Rptr. 173, 92 A.L.R.2d 966]) or to the unwelcome presence of animals (Hayden v. Tucker, 37 Mo. 214). In the statute’s terms, the alleged nuisance at bench did not “ . . . affect[s] at the same time an entire community or neighborhood, . . .” (Civ. Code, § 3480) (italics added).

At bench, only that portion of the public could see the film which voluntarily chose to enter the theatre. The nuisance was not one which is inflicted or imposed on the public.

The Red Light Abatement Law, originally enacted to make houses of prostitution a private as well as public nuisance, was amended in 1969 to include premises used for illegal gambling.³ The Red Light Abatement Law has been held by judicial construction to apply to lewd live stage shows and exhibitions. It has not been similarly extended to- apply to depictions in closed theatres of those same acts by still or motion picture, or drawings or any type of exhibits which are limited to closed theatres. If the Legislature had desired-or intended by section 11225 of the Penal Code to regulate the showing of pornographic films, pictures or drawings, such subject matter could have been included in section 11225 when it was recently amended in 1969, as it did when it chose to enumerate “illegal gambling as defined by state law or local ordinance” in that section of the Penal Code.

Th'e judgment is affirmed.

Fleming, J., concurred.

1 The complaint also purported to state a class action. In view of our disposition of the substantive issue, it is unnecessary to decide whether a class action was properly alleged.

2 Section 3479 in pertinent part defines nuisance as: “Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ... is a nuisance.”

3 “Every building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, and every building or place in or upon which acts of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.”