August -The New Wave of the Eighties    

 

     The eighties saw many cultural shifts. The rise of the personal computer affected major changes in business and social interactions. The still-evolving changes to new reportage, entertainment and personal communications are too vast to enumerate. There was a sea change in musical tastes. New Wave acts like the talking Heads and Punk bands like the Ramones reflected a new view of the arts and society.

 

     In Long Beach, downtown

continued its revitalization.

Look at this picture from 1980

depicting the Roxy Theatre on

Ocean Blvd. and you get a

sense of why an extensive

over-haul was necessary.

One World Trade Center was

constructed, anchoring a

successful effort to bring

business back to downtown.

 

     Long Beach attorney

George Deukmejian was

elected governor in 1983,

narrowly beating Tom Bradley.  

His former law partner,

Malcolm Lucas, became the

26th Presiding Justice of the California Supreme Court (both former Long Beach Bar Association members). The influence of the Long Beach legal community reached state-wide dimensions.

 

     Cases out of Long Beach in the 1980s set a number of State-wide precedents.

 

     One series of cases concerned enforcement of Long Beach’s “blue law” regulating the exhibition of “adult entertainment.” Walnut Properties, which operated a theatre showing adult films, had its license revoked because its location violated the statutory requirements for distances from schools and parks. Here is one part of definitional portion of the ordinance (there were many more prohibited depictions than these):

 

           “Adult motion picture theater” means an enclosed building with a capacity of fifty or      

           more persons used for presenting material distinguished or characterized by their

           emphasis on matter depicting, describing or relating to specified sexual activities or

           specified anatomical areas for observation by patrons therein.

           

           B. For purposes of this chapter, “specified sexual activities” shall include the following:

           1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal      

           copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or

           torture in the context of sexual relationship, or the use of excretory functions in the

           context of a sexual relationship, and any of the following depicted sexually oriented

           acts or conduct: analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio,

           necrophilia, pederasty, padophilia, piquerism, sapphism, zooerasty . . . .”

 

(For the vocabulary builders in the audience, piquerism is sexual interest in puncturing the skin of another). As you can see, many mainstream films today would render the exhibitors subject to this ordinance  (“50 Shades of Gray” comes to mind).

 

     Plaintiff lost its challenge and the ordinance was upheld. But the owners of the theatre came up with a plan to circumvent the ordinance:

 

           “Real parties' establishment, the Lakewood Theater, has two screens: one screen

           shows general release films and one screen shows adult films. Each count of the

           misdemeanor complaints specifically alleged real parties unlawfully established an

           adult theater in violation of Chapter 21.51 by exhibiting an X-rated movie on a particular

           day within the distances proscribed by the ordinance.” People v. Superior Court

           (Lucero) (1989) 49 Cal.3d 14, 19  

 

     The owners contended they were not operating an adult theatre because they showed more general release films than X-rated films.  The California Supreme Court devised a new standard:

 

           “By interpreting the term ‘used’ in this case to mean a ‘regular and substantial course of

           conduct,’ we give the ordinance a construction that is rationally tailored to support its

           asserted purpose of preventing neighborhood  blight without allowing Long Beach to

           use ‘the power to zone as a pretext for suppressing expression.’ (Young, supra, 427 U.S.

           at p. 84, 96 S.Ct. at p. 2459.) Under this standard, zoning restrictions such as contained

           in the ordinance at issue here would apply to all adult entertainment theaters offering

           adult fare as a substantial part of their regular business, but would not apply to

           theaters showing only occasional or incidental adult movies.”

 

     Long Beach City Attorney Robert Parkin (later The Honorable Robert Parkin who served as Presiding Judge of the County and afterwards sitting in Long Beach Department D) brought a routine civil action which wound up with the California Supreme Court setting a new rule:

 

           “The sole issue is whether a city may maintain a malicious prosecution action against

           an individual who unsuccessfully sued the city for false imprisonment and related torts

           arising out of alleged police misconduct. We believe that existing remedies are

           adequate to protect the interests of municipalities in obtaining compensation for the

           expenses incurred in defending against unwarranted lawsuits and in deterring

           improper suits in the future. Additionally, the maintenance of malicious prosecution

           actions by governmental entities would generate a potentially chilling effect of

           considerable dimension upon the exercise of the right to petition the government

           through the courts for redress of grievances. Therefore, constitutional principles and

           tort principles combine to make the existence of a malicious prosecution action

           inappropriate in this context.” City of Long Beach v. Bozek (1982) 31 Cal.3d 527, ], cert.

           granted, judgment vacated (1983) 459 U.S. 1095

 

     Long Beach argues it should be allowed to pursue the costs of defending meritless and frivolous litigation.  That argument failed in light of the recent passage of CCP §1021.7 which  established that “In any action for damages arising out of the performance of a peace officer's duties, brought against a  peace officer, ... or against a public entity employing a peace officer ..., the court may, in its discretion, award reasonable attorney's fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause.”

 

     The Court observed: “From a constitutional standpoint, an award of expenses upon a finding that monetary sanctions are appropriate under the standards set out in the above statutes is a clearly preferable remedy to an independent action for malicious prosecution with its cost in terms of additional attorneys' fees and imposition upon judicial resources.”

 

     Those of you who are actually reading the citations might wonder why I am quoting a case where the US Supreme Court granted certiorari and vacated the decision. The answer is that the decision was re-issued verbatim – very unusual. that the US Supreme Court asked the California Supreme Court to clarify whether its decision was based on the U.S. or the California Constitution.

 

           “We have reexamined our decision in this case (reported at  31 Cal.3d 527), and certify

           that our judgment is based on both the First Amendment to the United States

           Constitution and article 1, section 3, of the California Constitution; accordingly, the latter

           provision furnishes an independent ground to support the decision. Because we deem

           it unnecessary to modify our prior opinion, we reiterate that opinion in its entirety. City            of Long Beach v. Bozek (1983) 33 Cal.3d 727, 727–28

 

     So there.

 

     A controversy of even greater breadth and concern arose out the County’s assignment of potential jurors to the courthouse closest to them. This resulted in racial disparities. Many residents of North Long Beach were assigned to Compton:

 

           “The defense evidence showed that, based upon 1980 census information concerning

           persons 18 years of age and older, the jury eligible Black population in Los Angeles       

           County as a whole was 11.8 percent. The same population within a 20–mile radius of

           the Long Beach Courthouse was 14.8 percent. Three jury panels surveyed at the Long

           Beach Courthouse in May 1985 contained 6.2 percent Blacks. The Harris panel itself

           originally contained 5 percent Blacks, which was raised to 7.5 percent when additional

           jurors were needed and were transferred from the Compton Courthouse.” People v.

           McDonald (1987) 203 Cal.App.3d 925, review granted and opinion superseded (Cal.

           1987) 238 Cal.Rptr. 418

           ¶ .  . . assigning Black jurors to the courthouse nearest their homes consistently

           resulted in an underrepresentation of Blacks at the Long Beach Courthouse. Despite

           the county's evidence that prospective jurors from predominantly minority census

           tracts were less likely to respond to questionnaires and to qualify as jurors, the facts

           that there were sufficient numbers of Black jurors on a countywide basis, and too many

           at the downtown courthouse, strongly support the finding that the problem at the Long

           Beach Courthouse resulted at least in part, if not exclusively, from the allocation

           process. People v. McDonald (1987) 203 Cal.App.3d 925, review granted and opinion

           superseded (Cal. 1987) 238 Cal.Rptr. 418  

 

     But you citation readers can again ask how this decision fared upon review. Not well. The matter was remanded for reconsideration in light of another recent decision:

“The appropriate definition of ‘community’ for cross section analysis was judicial district, and (2) representation of blacks in venire from which juries were selected was not unfair and unreasonable in relation to number of black persons in community. Williams v. Superior Court (1989) 49 Cal.3d 736

 

     On a more local level, commercial tenants on the Queen Mary challenged payment of pro rata property taxes. What property? Their premises were over water.

 

           “Where all the improvements made to the land were designed to accommodate the

           ocean liner as a tourist attraction and the vessel was substantially annexed to the land,

           the respective possessory interests of the lessees in improvements to real property

           were subject to taxation, and term  ‘land’ included particularly land underneath the

           shallow water in which the vessel sat; (2) blending of possessory interests in real

           property under general heading of land without further definition was not fatal to the

           validity of the assessment; (3) failure of city, which was owner of underlying property, to

           obtain permit for permanently mooring vessel at wharf did not cause county to be

           stopped from assessing the interests of the lessees; (4) fact that this was first time a

           floating object had been subject to possessory interests tax did not render such

           imposition discriminatory; and (5) failure of the city to obtain a permit did not result in a

           local obstruction of the flow of interstate commerce, and, therefore, did not violate the

           commerce clause. Specialty Restaurants Corp. v. County of Los Angeles (1980) 111

           Cal.App.3d  

 

     Death and taxes are inevitable as a matter of law.

 

     In other local cases, you will be pleased to learn that the Colorado Lagoon was not a dangerous condition of public property. (I took my first swimming lessons there in the 1950s and survived). This particular scenario has been repeated numerous times through the decades:

 

           “Plaintiff, a resident of Long Beach, was familiar with the lagoon and the construction

           project, having used the facilities on more than 75 different occasions over a two-year

           period. On the evening of July 28, 1978, plaintiff and several family friends, including

           one James Collins, were celebrating the birthday of plaintiff's wife, Jeannette, at the

           couple's home. During the course of the celebration, plaintiff consumed approximately

           four to six 12–ounce cans of beer; Collins, between four and five cans.2 At the

           suggestion of plaintiff's  wife, several of the couples decided to leave the party and

           drive to the lagoon. Arriving at that location sometime between 12:30 a.m. and 1:30 a.m.,

           plaintiff and Collins walked out to the end of the pier while their wives remained on the

           beach. Neither plaintiff nor any other member of the group noticed warning signs or

           barricades that would have prohibited or prevented use of the pier and adjacent

           facilities. As the men approached the open-ended portion of the pier, they removed

           their clothes and prepared to dive into the water. Although the area was well-lit, neither

           of the men noticed the depth of the water immediately beneath the structure. Collins,

           diving from the left side of the pier, entered the water first, hit the bottom of the lagoon

           unscathed, and surfaced. Seeing that plaintiff was about to make his dive, Collins

           attempted to alert him to the shallowness of the water. Plaintiff, however, already had

           begun his dive and apparently did not hear the warning. From a crouching position,

           plaintiff executed a flat, right-angled dive in order to avoid hitting bottom or colliding

           with the float, located approximately 22 feet from the end of the pier. The force of the

           dive itself propelled him some 20 feet into the water where he struck either the ocean

           floor or some unknown solid object. The impact was sufficient enough to render

           plaintiff, a former college football player and wrestler, a quadriplegic at the age of 22.”

           Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 128–29   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     In the venerable legal tradition of fitting round pegs into square holes, the Plaintiffs contended Long Beach was liable under the presumption of Negligence Per Se, relying on provisions of the uniform Building Code requiring barriers during construction.  How did that play out?

 

           “We agree with defendant that the provision of the UBC relied upon by plaintiff were

           intended to provide protection to pedestrians using a “public way” adjacent to building

           sites from construction related accidents. Here, the reconstruction of the pier had been

           substantially completed and any activities that were still ongoing simply did not

           contribute to plaintiff's accident. The injuries sustained were not of the type that the

           UBC was enacted to prevent. Nor was plaintiff, in walking onto the pier and

           intentionally diving from the structure, one of the class of persons for whose protection

           the regulations were adopted. Under the circumstances, any violation of the UBC that

           may have occurred imposes no liability under Government Code section 815.6. The

           trial court did not err in refusing to give the proffered jury instructions.”

 

Seems pretty obvious in retrospect. Actually, it was pretty obvious from the outset.

 

     I close out the eighties with a case which is not significant for its legal content, but for content showing how much the cost of litigation has changed in three decades.

Long Beach Public Transportation was defended by local attorneys Ray Kaiser and Rodney DiBiaso (The firm of Kaiser & Swindells still represents this client). A vehicle struck a bus, injuring the plaintiff. The suit against LBPT was not a claim of negligence in operation of the bus, but of negligence in failing to maintain the information about the negligent driver of the other vehicle: “The fundamental question presented by defendant's appeal is whether a common carrier owes a duty to its passengers to investigate an accident caused by a third party for the purpose of facilitating a claim by the passenger against the third party tortfeasor. We hold that it does, and affirm the judgment.” De Vera v. Long Beach Pub. Transportation Co. (1986) 180 Cal.App.3d 782, 788

 

     They may have lost the appeal in substance, but they prevailed on a cross-appeal by the Plaintiff against monetary sanctions imposed. The Plaintiff failed to withdraw a writ of execution (which cannot be used against a public entity) and LBPT moved to quash. Plaintiff did not oppose the motion or appear at the hearing. Hard to succeed on appeal with those facts, but Plaintiff tried to argue the fees were excessive. Note the reasonable hourly rate charged by quality practitioners in the 1980s: “Kaiser also declared that the actual fee charged defendant for legal services in opposing and quashing plaintiff's writ of execution was $1,189.50, calculated at $65.00 per hour.” How times change. Next month we look at the end of the 20th century.