Calif. Supreme Court to Decide Topless Club’s Jury Award

Rhett Pardon
SAN FRANCISCO — California’s highest court has decided to review the extent of a city’s responsibility when it obtained a preliminary injunction against an adult cabaret but eventually lost its case.

Wednesday’s order focuses on a jury award of $1.4 million for damages incurred by the owner of San Bernardino’s The Flesh Club after the court ordered it to close down because the club violated a zoning ordinance and deemed it a public nuisance.

Manta Management Corp., the owners of the property, were issued a conditional use permit in 1993 for the operation of a nightclub to feature live, non-erotic entertainment and dancing in a commercial area.

A year later, the club was renamed and began featuring topless dancers.

The city attorney promptly brought an action alleging the topless club constituted a public nuisance, seeking to abate it through preliminary and permanent injunctions. San Bernardino Superior Court Judge Carl Davis granted the city’s motion for preliminary injunction and ordered Manta to cease topless performances.

Manta appealed the order granting the preliminary injunction and cross-complained against the city for declaratory relief and damages.

The cross-complaint included several state causes of action and a cause of action alleging that the “ordinances and code provisions and actions” of the city violated its civil rights under the federal and state constitutions.

Davis later ruled that the ordinance was constitutionally invalid because it neither served a substantial governmental interest nor allowed for reasonable alternative avenues of free speech. He dissolved the preliminary injunction.

In the subsequent trial, a jury awarded Manta $1.4 million in damages for lost profits.

A California appeal court later sided with Manta and approved the damages claim against San Bernardino.

“Just as the act of seeking an injunction maliciously and without probable cause is a tort, so too is the act of seeking and obtaining an injunction to enforce an unconstitutional ordinance,” Judge Art W. McKinster said.