I concur in the majority opinion insofar as it concludes that petitioners assert that there is an inherent relationship between the regulation of booths in picture arcades where sexually explict films are shown and the protection of the public health, safety, morals and general welfare. So viewed, the ascertainment of the “factual basis . . . and the need for the ordinance,” sought by Goldie in these depositions, is unnecessary. This discovery attempt therefore can only be described as an improper attempt to probe the motivation of the sheriff and the county in proposing and enacting the ordinance.
But petitioners cannot have it both ways. They cannot now claim that the factual basis for this ordinance in Sacramento County is irrelevant (and hence not discoverable) and later seek to justify the enactment at trial by proof of unlawful incidents at picture arcades in Sacramento County. The need for regulation of picture arcades, like that of drugs, alcohol and prostitution, is either self-evident or it is not. Petitioners claim that it is and having staked their claim on that ground, there is where the legal battle must be fought.
Code of Civil Procedure section 1987.1 authorizes the trial court to issue protective orders, either by directing compliance with the subpoenas “upon such terms or conditions as the court shall declare” or by making “any other order as may be appropriate to protect the parties, the witness, or . . . from unreasonable or oppressive demands . ...” I would issue the writ directing petitioners either to comply with the subpoenas or, at their election, to decline upon the condition that they be precluded from introducing any evidence of the nature sought in the subpoenas.
A petition for a rehearing was denied November 16, 1982. Sparks, J., was of the opinion that the petition should be granted. The petition of real party in interest for a hearing by the Supreme Court was denied December 15, 1982.