Court of Appeal:
Opinion Says Beaudet, While Properly Withholding Approval of Parading Through Common Areas of Mall,
Conferred Rights on Bass Supporters to Stage Stationary Protests That Weren’t Sought by Them
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that a Los Angeles Superior Court judge went off track in issuing a preliminary injunction that granted detractors of mayoral candidate Rick Caruso demonstration rights at The Grove, a shopping mall owned by Caruso through his companies, that they had not sought.
Plaintiff Gina Viola and others who favor the election of U.S. Rep. Karen Bass, D-Los Angeles, over Caruso “have cited no case where a court devised a remedy to allow a plaintiff to engage in a speech activity different from the one in which the plaintiff had attempted to engage,” Div. Four said in an unpublished opinion. “Because the trial court’s fashioning of the injunction to order a stationary protest was unprecedented given the circumstances here and would upset the status quo, the preliminary injunction should not have been granted.”
Viola—who came in fourth in the June 7 primary for Los Angeles mayor, with 6.9 percent of the vote—and her compatriots sought an order allowing them to march though the outdoor portions of the mall demonstrating their opposition to Caruso. What Los Angeles Superior Court Judge Teresa A. Beaudet gave them, on Sept. 22, was a preliminary injunction providing:
•The enjoined parties shall not prohibit or interfere with one stationary protest organized by Plaintiffs of no longer than an hour in duration that will take place on a Thursday at 3:00 p.m., no earlier than October 6,2022 and before November 8, 2022; The stationary protest shall not involve more than 30 people;
•The stationary protest shall take place in a designated area immediately east of the Grove’s angel statue where there is no curb and not in the walkway towards the clock on Bow Street; The enjoined parties will not prohibit the protesters from holding signs or chanting but may prohibit the use of amplified sound;
•The enjoined parties will not prohibit the protesters from leafletting within the designated stationary protest area;
•The enjoined parties are prohibited from sectioning off the designated stationary protest area with metal barricades or similar enclosure, but the designated stationary protest area may have “velvet ropes” separating that area from the pedestrian walkways but not the area opening towards the fountain;
•Apart from the stationary protest, the enjoined parties shall not prohibit or interfere with any single individual displaying a paper sign that is not larger than 24” x 36” with messaging that opposes Caruso’s mayoral candidacy, for up to an hour per day, commencing no earlier than October 6, 2022.
Two days later, a notice of appeal was filed in the Superior Court and a petition for a writ of supersedeas was filed in the Court of Appeal. Div. Four on Oct. 3 stayed the enforcement of the preliminary injunction and ordered expedited briefing.
Per Curiam Opinion
A decision came in an opinion signed by Acting Presiding Justice Audrey B. Collins, Justice Brian S. Currey, and Los Angeles Superior Court Judge Natalie Stone, sitting on assignment.
The jurists noted that the California Supreme Court in the 1979 case of Robins v. Pruneyard Shopping Center held that under the state Constitution, there is a right to demonstrate in private shopping malls but that the demonstrators do not have “free rein” and their conduct may be subjected to reasonable time-place-and-manner restrictions. The Grove, they related, has set up an application procedure, which entails stating which of two free-speech areas will be utilized.
Viola and her group applied, specifying neither area, seeking, instead, to march through the common areas of the grounds, which the rules that had been established forbade, and the application was denied, but with an invitation to file a new application that comported with the rules. Instead, a lawsuit was filed.
Abuse of Discretion
The opinion sets forth:
“Importantly, for purposes of the trial court’s consideration of their preliminary injunction motion, the plaintiffs stated they were not contesting the facial validity of The Grove’s rules. It is undisputed plaintiffs had no right under those rules to march through the mall. Thus, The Grove’s denial of plaintiffs’ requests to do so could not have been an unconstitutional or discriminatory application of The Grove’s rules to plaintiffs. Nor is there evidence that the Caruso mayoral campaign has been allowed to engage in any similar activity. Because there is no reasonable probability that plaintiffs could prevail on the merits, it was an abuse of discretion for the trial court to grant injunctive relief.”
The would-be demonstrators argued that they were merely seeking to parade with anti-Caruso placards, just as persons were allowed to do toting pro-Caruso signs. Yesterday’s opinion says that the Caruso campaign paid for space at which it made signs available and in May, one person was spotted walking through the grounds with a Caruso sign hanging from her neck and, to test the policies, two pro-Bass individuals on two occasions strolled through the shopping center for about 15 minutes carrying Caruso lawn signs without being stopped.
“Before the trial court, respondents exaggerated and misrepresented the campaign s activities, claiming The Grove allowed Caruso supporters to ‘march’ or ‘parade’ through The Grove, ‘displaying their Caruso for Mayor signs.’ ” the opinion recites. “Yet, there is no evidence The Grove has allowed pro-Caruso marches or parades of any size, let alone ones involving anywhere from 10 to 50 participants at a time, as respondents sought to do.”
Time, Place, Manner
“The trial court correctly concluded the denial of the applications to march was proper under The Grove’s time, place and manner policies, whose validity respondents did not contest for purposes of their as-applied challenge. Given that respondents had applied for and were denied permission to engage in an activity no court has found they had a right to engage in, and absent evidence the Caruso campaign had been permitted to engage in the same type of activity, respondents have not demonstrated The Grove abridged their free speech rights or treated them differently than the Caruso campaign based on their viewpoint. As such, the trial court should have concluded respondents were unlikely to prevail on their as-applied challenge and denied preliminary injunctive relief.
“Here, the trial court essentially ordered that a large-scale protest take place at the center of The Grove, even though it does not comply with The Grove’s policies and is not sanctioned under any California authority. Apparently, the protest is supposed to be a rough equivalent to the Caruso campaign’s May 2022 press conference.”
On May 12, the Caruso campaign leased space in the Grove for a press conference at which Los Angeles City Council member Joe Buscaino withdrew as a candidate for mayor, endorsing Caruso.
‘Went Far Astray’
The opinion declares:
“The trial court had discretion to tailor relief to redress harm to respondents. It did not, however, have license to order preliminary injunctive relief that went far astray from the expressive activity requested by respondents, the only activity for which The Grove denied permission. Where California courts have granted injunctive relief to protect speech activities in malls, they have limited the relief to barring enforcement of a particular rule or a set of rules against the specific expressive activity plaintiffs had been denied the right to engage in.”
In granting permission for a daily, one-hour display of anti-Caruso signs, the opinion observes, Beaudet “paradoxically…fashioned a remedy to allow unspecified individuals to engage in an activity respondents had neither sought, nor were eager to engage in themselves.”
The case is Viola v. Caruso Management Company, Ltd., B323596.
Representing Viola and others were Stacey Leyton and Juhyung Harold Lee of the San Francisco firm of Altshuler Berzon as well as mid-Wilshire attorney Shakeer Rahman and downtown Los Angeles lawyer Matthew Strugar. Acting for two of Caruso’s companies were attorneys from various offices of Quinn Emanuel Urquhart & Sullivan LLP and Nielsen Merksamer Parrinello Gross & Leoni, LLP.
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