Wednesday, October 10, 2007
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Court of Appeal Says Retail Stores May Bar Signature Solicitors
Individual Business Within Shopping Center Is Not Public Forum, Div. Two Justices Say
By KENNETH OFGANG, Staff Writer
The California Constitution does not guarantee solicitors the right to gather petition signatures in front of a retail store that is part of a larger shopping center, the Court of Appeal for this district has ruled.
Div. Two last week certified publication of its Sept. 11 opinion affirming Los Angeles Superior Court Judge Peter Lichtman’s order granting summary judgment to the Target, Wal-Mart, and Home Depot chains.
The plaintiffs brought class actions alleging that the three chains had violated their constitutional rights by demanding that they not circulate petitions in front of the stores. They cited Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, which held that the “liberty of speech” clause of California’s Constitution is broader than the First Amendment and protects expressive activities on private property if the premises are the equivalent of a traditional public forum.
Summary Judgment
The defendants argued in a joint motion for summary judgment that their stores lack the “public forum” aspects that the Supreme Court found dispositive in Robins. Their stores, they said, are planned and laid out to encourage shopping rather than congregating and lingering, and do not contain gathering spaces or entertainment areas.
The plaintiffs responded with a declaration by Anastasia Loukaitou-Sideris, who chairs the Department of Urban Planning at UCLA. She explained that suburban shopping centers have largely replaced downtown business districts as the “economic lifeblood” of communities, and that many of the defendants’ stores were part of shopping centers with common areas, courtyards, or plazas open to public to gather or socialize.
She also noted that many Target and Wal-Mart stores contain restaurants and video arcades, that many of the centers host community events, and that signature-gatherers often can only reach potential signers by standing in front of the stores because there are no nearby public spaces.
Lichtman ruled that with respect to property controlled by specific retailers, as opposed to the common areas of shopping centers, there is no constitutional protection for expressive activity. While the common areas may be the equivalent of a traditional public gathering place, the judge said, “the aprons and perimeters of [the defendants’] establishments have become, in many instances, an extension of the store itself.”
Free Speech
That characteristic, the judge said, leads to the conclusion “that the societal interest in using defendants’ stores as forums for exercising free speech and petitioning activities does not outweigh the defendants’ interests in exercising exclusive control over the use of their private property.”
Justice Kathryn Doi Todd, writing for the Court of Appeal, said the trial judge was correct.
“The undisputed evidence demonstrated the private nature of the property on which appellants sought to gather signatures,” she wrote. “It further showed that the entrance area of respondents’ stores did not function as a public forum where appellants would be entitled to engage in expressive activities.”
The justice cited a series of cases, including Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425, and Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106.
Trader Joe’s held that the walkway in front of a stand-alone store with about 11,000 square feet of space, which did not have public gathering areas on its premises, was not a public forum. A “modest retail store” of that type differs from the 65-store Pruneyard Shopping Center, which was more of a community gathering place, the court held.
The Albertson’s court affirmed an injunction barring solicitation of petition signatures in front of the Albertson’s store in Fowler Center, a 14-acre property located between Grass Valley and Nevada City in Nevada County. It rejected the defendants’ claim that the store’s size and location made it the equivalent of a public forum under Robins.
As in those cases, Doi Todd wrote, the evidence before Lichtman established that the defendants encouraged the public to shop at, and even in front of, their stores, rather than to gather there for public discussion.
The defendants, she added, were rightly concerned that because their stores “generally have only one or two entrances and exits, appellants’ positioning themselves immediately in front of the stores creates a significant risk that store patrons will associate the stores with appellants’ message,” and that “the stores’ limited access means that patrons will be unable to avoid appellants when entering or exiting the stores.”
Attorneys on appeal were H. Scott Leviant, Mike Arias, Mark A. Ozzello and Arnold C. Wang of Arias, Ozzello & Gignac for the plaintiffs; David F. McDowell and Nancy R. Thomas of Morrison & Foerster for Target Corporation; Matthew P. Kanny, Diana N. Iketani and Joelle A. Gryczman of Manatt, Phelps & Phillips for Wal-Mart Stores, Inc.; and Thomas J. Leanse and Stacey McKee Knight of Katten Muchin Rosenman for Home Depot, U.S.A., Inc.
The case is Van v. Home Depot U.S.A., Inc., 07 S.O.S. 6140.
Copyright 2007, Metropolitan News Company