Thursday, January 8, 2015
C.A. Affirms Ban on Charitable Solicitations at Shopping Center
By KENNETH OFGANG, Staff Writer
An injunction barring a charitable group from soliciting donations near stores in a shopping center does not violate the group’s constitutional rights, the Fifth District Court of Appeal has ruled.
The court late Tuesday affirmed an injunction in favor of Donahue Schriber Realty, owner of the 60-store Fig Garden Village Shopping Center in Fresno. The panel agreed with Fresno Superior Court Judge Kristi Culver Kapetan that the plaintiff presented sufficient evidence to establish that the area around the stores is not a public forum and that it would suffer irreparable harm if the solicitations were not enjoined.
The center’s owner sued Damone Daniel and Nu Creation Outreach, a charitable organization that says it maintains soup kitchens and youth centers. The plaintiff attached photos to its papers, showing the areas in which solicitation was occurring, and asserted in the papers that the areas in question were not open to the public for purposes other than accessing the stores, which the defendants disputed.
Kapetan, in granting the injunction, ruled that the defendants could solicit in a public area of the shopping center, mapped in an attachment to the order.
On appeal, Daniel—purporting to represent the defendants—asserted that Nu Creation Outreach was not a proper defendant in the case. He claimed that Nu Creation Outreach was a nonprofit corporation, of which he was the treasurer and which operated outside Fresno County; that it had no involvement in the solicitations; and that the solicitors were associated with another group.
Daniel also argued that the injunction violated his constitutional rights of free speech and petition.
Presiding Justice Brad Hill, writing for the appellate panel, said the court could not entertain any argument on behalf of Nu Creation Outreach because it was not represented by an attorney. While a natural person may represent himself, the jurist noted, only an attorney may represent a corporation, noting that Daniel is not, and did not claim to be, admitted to practice law.
The corporation is free to retain an attorney to represent it in connection with any enforcement proceedings related to the injunction, he noted.
Turning to the merits, Hill said the trial judge did not abuse her discretion in granting the injunction.
He distinguished Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, which held there was a state constitutional right to free expression on the grounds of a large, privately owned shopping mall, so long as business wasn’t disrupted.
The court based its decision on Art. I, §2(a) of the state Constitution, which provides:
“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
Subsequent decisions, however, held that the right does not extend to an area that lacks the attributes of a traditional public square, such as the parking lots and driveway of a standalone retail store.
In granting the injunction, Hill wrote, Kapetan “applied the more refined principles set out in Ralphs [Grocery Co. v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083], which narrowed the Pruneyard rule to apply only to common areas of the shopping center, that ‘have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger and to leisurely congregate for purposes of relaxation and conversation.’ ”
The jurist rejected Daniel’s proffered evidence, in the form of photographs purporting to show other fundraising and social activities taking place near the stores, because it was unsworn.
As for the issue of irreparable harm, Hill said the trial judge properly relied on a declaration by a person knowledgeable about retail shopping, who said that if customers felt disturbed by solicitors, they would shop elsewhere and likely not come back.
Donahue Schriber was represented on appeal by Miriam A. Vogel, David F. McDowell, Dale K. Larson and Jeremiah M. Levine of Morrison & Foerster.
The case is Donahue Schriber Realty Group v. Nu Creation Outreach, 14 S.O.S. 109.
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