Mitchell Brothers Wins Attorney’s Fees : Santa Ana Must Pay After Losing Suit Against Movie House

A judge ordered the City of Santa Ana on Thursday to pay the attorney fees for Mitchell Brothers Theatre in its successful defense of an old lawsuit brought by the city.

Orange County Superior Court Judge Claude M. Owens told lawyers for both sides that he will order the city to pay because he found that Santa Ana had failed to prove that one group of movies shown by the theater was pornographic.

Owens heard that case and two other similar nuisance-abatement cases in 1981 but did not decide them until Thursday. Owens said that neither side had asked for a ruling and he decided to call them into court to complete the old cases.

Predicts a High Bill

Mitchell Brothers attorney Tom Steele said that a bill will have to be prepared and that it will probably amount to “tens of thousands” of dollars. Santa Ana has already spent more than $300,000 trying to close down the 17th street theater.

“Primarily, we hope it will be significant in bringing home the message to the city that they have not prevailed and a just course would be to discontinue the accelerated prosecution we’ve seen recently,” Steele said.

In the other two cases, Owens announced Thursday that he will order the theater not to show 48 contested films. Owens, however, ruled against city lawyers in their attempt to revoke the theater’s business license.

The list of films Owens decided that Mitchell Brothers may not show includes “Deep Throat” and “The Devil in Miss Jones.” Theater representatives said they had no plans to show the old films again.

In 1981, Owens viewed all 48 of the films in a courtroom closed to everyone but himself and the lawyers.

Owens said he will order the city to pay the theater’s legal bills in the first case because the films named were never proven to be pornographic by the city.

Under state law, the winning party in a lawsuit often has the right to collect its fees from the loser. In the other two cases, Owens ordered each side to pay its own costs because each side essentially won half the case.

Owens told Mitchell Brothers attorneys to draw up a list of their claimed legal expenses for his consideration later. His orders will not be effective until they are drawn up and presented to him for his signature.

“With that, we can close the book at least on three cases--I hope,” said Owens, a retired judge who is specially assigned in the Superior Court.

“I hope,’ Owens repeated. “They can always appeal.”

Meanwhile, the city’s contracted attorney, James Clancy, and Mitchell Brothers attorney Stuart Buckley have been making appearances almost weekly in Superior Court as the city continues its strategy of filing a new lawsuit each Wednesday against the theater.

Deposition Hearing

Both lawyers appeared in the courtroom of Commissioner Eleanor Palk Thursday, this time to argue over whether Clancy should be forced to give his deposition to Buckley.

Buckley has claimed that Clancy, while being paid to prosecute Mitchell Brothers by the city, is also collecting a monthly fee from a private group opposed to pornography.