Miller v. State of California

Plaintiffs Marvin Miller and Covina Publishing, Inc., a corporation of which Miller is an officer, director and shareholder, filed a complaint May 22, 1968, in which the corporate plaintiff sought a declaration that a book entitled “Intercourse” is not obscene and both plaintiffs sought an injunction prohibiting defendant through any of its agents from prosecuting plaintiffs for publishing, distributing or selling the book. After a demurrer to each cause of action was sustained, plaintiffs on October 1, 1968, filed a first amended complaint. Defendant again successfully demurred and plaintiffs failed to amend whereupon a judgment of dismissal was entered. This appeal follows.

Plaintiffs rely heavily upon Zeitlin v. Amebergh (1963) 59 Cal.2d 901 [ 31 Cal.Rptr. 800 , 383 P.2d 152 , 10 A.L.R.3d 707 ] in which the court held that the plaintiffs there were entitled to a declaratory judgment that the book “Tropic of Cancer” was not obscene within the meaning of section 311 of the Penal Code and that its sale would not violate section 311.2 of the Penal Code.

The court below, on the other hand, relied upon the decision of this division of this court in Holden v. Arnebergh (1968) 265…