Opinion
Hearing Granted Aug. 12, 1948.
Appeal from Superior Court, Los Angeles County; W. T. Belieu, Judge.
Suit by Dr. Leo Gelfand and others against Mr. Charles H. O’Haver and Mrs. Phyliss O’Haver to enjoin the defendants from creating a nuisance by unreasonable operation of defendant’s music studio From a judgment for plaintiffs, defendants appeal.
Judgment affirmed. COUNSEL
Charles H. O’Haver, in pro per.
Hortense Stahl, of Beverly Hills, for respondents.
OPINION
WHITE, Justice.
This is an appeal from a judgment by which defendants were enjoined and restrained ‘from creating a nuisance by unnecessary, unreasonable and injurious methods of operation of their said music studio in their residence at 611 North Larchmont Boulevard, Los Angeles, California, which methods of operation can be corrected by adapting said premises to such commercial use.’ Appellants contend that the evidence is insufficient to support the judgment; that the judgment is ambiguous and not sufficiently clear to be enforceable; and that ‘the judgment ignores and violates section 731a of the Code of Civil Procedure.’
The plaintiffs are neighbors of defendants, residing immediately to the south, north, east and southwest of defendants’ premises; they charged that the defendants, who maintain a music studio in their residence, have been causing or permitting in such residence ‘persons to sing and to rehearse and practice on musical instruments individually and in groups, such as bands and orchestras consisting of wind instruments, brass instruments and combinations thereof daily including Sundays from the hours of 9:00 a. m. to 10:00 p. m., and on some occasions to 12:00 midnight; that during such singing, rehearsing and practicing the defendants open or permit others to open the doors and windows of defendants’ said residence; that such singing, rehearsing and practicing occurs in such volume and with such repetition in the manner aforesaid that the noise and clamor is transmitted with intensity to the vicinity surrounding said residence of defendants; that such noise and clamor are offensive, disturbing and annoying * * * the defendants have maintained and are maintaining a nuisance * * * injurious to the wellbeing of the plaintiffs * * *.’
Certain of the plaintiffs are physicians maintaining offices across the street from defendants’ premises. They charge that the singing, practicing and rehearsing make it impossible for the physicians to make physical examinations of patients ‘when such examinations are dependent upon auditory perceptions’ and make it impossible to conduct ordinary conversations or telephone conversations and render the medical offices unsuitable for medical practice.
It was further charged that the aforesaid conduct of defendants’ music studio caused great nervous distress to certain plaintiffs making it impossible for them to sleep and interfering with their health and comfort.
The same charges were made in behalf of two other plaintiffs occupying a dressmaking establishment in the vicinity.
After trial, the court found:
‘That * * * defendants have conducted a voice and music studio in their home without soundproofing the same or adapting it for such use, and that in so doing have caused or permitted persons to sing and rehearse and practice on musical instruments, individually and in groups, such as bands and orchestras consisting of wind instruments, brass instruments and combinations thereof, as well as vocal exercises daily and including sounds from early hours of the morning to late hours of the night.
‘That during such practicing and rehearsing, defendants have opened or permitted others to open doors and windows of defendants’ residence.
‘That such singing, rehearsing and practicing as aforesaid, occurs in such volume and with such repetition that the noise and clamor thus caused is heard in the homes and vicinity of the residences and places of business of said plaintiffs.’
The court further found that ‘such din, clamor and discord, and the sounds thus caused and created injuriously disturbs and offend the plaintiffs and the neighborhood thereabouts’; that it hinders the physicians in their practice as charged; that the ‘playing, practicing and rehearsing of bands, orchestras, wind and string instruments, and vocal exercises, are carried on simultaneously in defendants’ home, both in the day and night time, * * * that the same has hindered the sleep of plaintiffs * * * affected the nervous system of said plaintiffs to their detriment.’
The court further found: ‘That the home of the defendants where they conduct such musical studios, is an ordinary dwelling not designed for nor adapted to such purpose, insofar as controlling discordant musical sounds coming therefrom, is concerned.
‘That the methods of operation of defendants’ said studios are unnecessary, unreasonable and injurious.
‘That the defendants are creating the nuisance herein complained of as the direct result to said unnecessary, unreasonable and injurious methods of operation.
‘That the home of the defendants where they carry on their music studio work, is situated in a zone of the City of Los Angeles, which permits the operation of such business therein, but that in so doing, they are not permitted to raise or create a nuisance in the operation of such business by the employment of unreasonable, unnecessary and injurious methods of operation.’
The two questions presented by this appeal are (1) whether the evidence supports the trial court’s finding that defendants’ methods of operation are ‘unnecessary, unreasonable and injurious’ and (2) whether, as appellants contend, the judgment is ‘ambiguous and not sufficiently clear to be enforceable.’
Section 731a of the Code of Civil Procedure, so far as here material, provides:
‘Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial uses are expressly permitted * * * no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation. * * *’
It is appellants’ contention that to support an injunction or a finding that their use constituted a nuisance, it was necessary for plaintiffs to show that the studio was being operated in a manner different from that usually and customarily employed by other music studios in Los Angeles. It is true that no evidence was presented as to methods of operation in other studios, but we think it can safely be said that music studios cannot legally be conducted in the manner disclosed by the record before us. There was ample evidence to support the findings that defendants used no soundproofing or other means of adapting their dwelling for use as a music studio; that they carried on playing and practicing vocally and with instruments, both individually and in groups; that the doors and windows were open during such activities; and that these activities were continued from early morning until late at night. It cannot be assumed that operation of a music studio in the manner described and with the results complained of and set forth in the findings is either necessary or reasonable, in the particular location and under the conditions with which we are here confronted.
In support of their contention that the judgment is ‘not sufficiently clear to be enforceable’, appellants cite authorities to the effect that ‘an injunction should contain sufficient information on its face to apprise the party upon whom it is served of what he is restrained from doing’ (Wheeler v. Superior Court, 82 Cal.App. 202, 209, 255 P. 275, 278) and that to hold a person guilty of contempt for violating an injunction, the acts constituting the contempt must be clearly and specifically prohibited by the terms of the injunction. Brunton v. Superior Court, 20 Cal.2d 202, 124 P.2d 831; Weber v. Superior Court, 26 Cal.2d 144, 156 P.2d 923. It is argued that the judgment ‘leaves it up to the defendants to decide what they are to do or not to do and does not apprise them of any acts prohibited.’
The judgment reads as follows: ‘That defendants be enjoined and restrained from creating a nuisance by unnecessary, unreasonable and injurious methods of operation of their said music studio in their residence at 611 North Larchmont Boulevard, Los Angeles, California, which methods of operation can be corrected by adapting said premises to such commercial use.’
We have concluded that the judgment herein sufficiently apprises the appellants of what they are to do or refrain from doing. They are enjoined from ‘creating a nuisance by unnecessary, unreasonable and injurious methods of operation.’ Reference to the findings discloses that the ‘nuisance’ consists in the disturbance of their neighbors by the loud and repetitious sounds emanating from their establishment, as is detailed in the findings hereinbefore quoted; that the ‘unnecessary, unreasonable and injurious’ methods of operation consist in the failure to adapt their ordinary dwelling-house for use as a music studio so as to control the emission of such sounds. The result to be achieved is the control of the sound; the method of control is the problem of appellants. The requirement that they ‘adapt’ their premises ‘to such commercial use’ is sufficiently clear. In Williams v. Blue Bird Laundry, 85 Cal.App. 388, 259 P. 484, 486, the court said: ‘It is strenuously contended that because the judgment merely restrains the defendant from so conducting its plants as to cause loud noises, offensive odors, black smoke and soot, it is so indefinite as to render it ineffective, and that it must be reversed; that it is impossible to determine what degree of noise, or degree of odor, etc., would constitute a violation of the injunction; and that the defendant may be subjected to citations for contempt at any time that one of the plaintiffs may deem any noise, odor or smoke objectionable to himself. However, the judgment plainly states that the laundry or laundries shall be so operated as to avoid causing loud noises, offensive odors, black smoke, or soot, or in any other such manner as to be deleterious to the health of the plaintiffs. We think the entire judgment when read together is sufficiently definite in this regard.’
In Ebur v. Alloy Metal Wire Co., 304 Pa. 177, 155 A. 280, 285, the court on appeal rewrote the trial court’s judgment to provide that the defendant be ‘restrained from operating its plant in such a manner as to emit from said plant smoke, odors, gases, smudge, noises, and vibrations which are unnecessary and unreasonable under the circumstances, and which can be eliminated by the efficient operation of its plant and by the installation of the most effective reasonably available devices for the reduction of smoke, odors, gases, smudge, noises, and vibrations in its plant, * * *,’ and in Payne v. Johnson, 20 Wn.2d 24, 145 P.2d 552, a judgment was upheld enjoining the defendant from operating the sound effect of an open-air theatre in such a manner that under ordinary atmospheric conditions the sound would be audible in closed buildings on plaintiffs’ land.
Here, the requirement is that appellants control the sounds emanating from their premises so far as they can by eliminating the ‘unnecessary, unreasonable and injurious’ methods heretofore used by them and which methods are described in the findings of fact.
The judgment is affirmed.
YORK, P. J., and DORAN, J., concur.