Albertson's, Inc. v. Young

• Decision Date: 18 March 2003
• Docket Number: No. C037270.,C037270.
• Court: California Court of Appeals Court of Appeals
• Parties: ALBERTSON'S, INC., Plaintiff, Cross-Defendant and Respondent, v. James YOUNG, et al., Defendants, Cross-Complainants and Appellants.

131 Cal.Rptr.2d 721

107 Cal.App.4th 106

ALBERTSON'S, INC., Plaintiff, Cross-Defendant and Respondent, v. James YOUNG, et al., Defendants, Cross-Complainants and Appellants.

No. C037270.

Court of Appeal, Third District.

March 18, 2003.

Review Denied June 18, 2003.^*

Gronemeier & Associates and Dale L. Gronemeier, South Pasadena, for Defendants, Cross-Complainants and Appellants.

Kronick, Moskovitz, Tiedemann & Girard, Dorothy S. Landsberg and Robin Leslie Stewart, Sacramento, for Plaintiff, Cross-Defendant and Respondent.

SCOTLAND, P.J.

Over two decades ago, our state Supreme Court concluded that a privately owned shopping center that attracts large numbers of people to congregate in order to shop and take advantage of other amenities offered by the shopping center is the functional equivalent of the traditional town center, which historically is a public forum where persons can exercise the right to free speech. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910-911 & fn. 5, 153 Cal.Rptr. 854, 592 P.2d 341 (hereafter Pruneyard).) Therefore, the Supreme Court held that the free speech clause of California's Constitution precluded the Pruneyard Shopping Center from preventing a small group of individuals from setting up a table within the center to peacefully distribute handbills and solicit signatures on petitions. (Id. at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341.)

James Young, Eloise Voneckert, John Slevin, Charles Noble, Christopher Noble, and Edward Noonan (defendants) are individuals who solicit and gather signatures on initiative petitions to place measures on election ballots. Armed with initiative petitions and the holding in Pruneyard, defendants attempted to solicit the signatures of shoppers by stationing themselves on the walkway immediately outside of the entrances to a grocery store owned and operated by Albertson's, Inc., in Nevada County.

Albertson's forbade them from doing so, took steps to stop their activity, and then commenced this action for injunctive and declaratory relief. Defendants cross-complained, alleging that Albertson's violated their constitutional rights to free speech and caused them harm.

The trial court ruled that the Albertson's store is not the functional equivalent of a traditional public forum and, therefore, defendants do not have a constitutional right to use it to solicit signatures on initiative petitions. Accordingly, the court entered judgment in favor of Albertson's, permanently enjoining defendants from coming onto the premise of the store for voter registration activity or to solicit and gather signatures on petitions to governmental or political bodies.

On appeal, defendants contend the court failed to consider that Albertson's permitted other noncommercial expressive activity at the store, and erred in viewing it as a stand-alone store rather than as part of the shopping center in which it is located. And, they argue, even if Albertson's store is considered a stand-alone business, the plurality, concurring, and dissenting opinions of the California Supreme Court in Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 111 Cal.Rptr.2d 336, 29 P.3d 797 (hereafter Golden Gateway) have, in the words of defendants' counsel, "delineated the reach of California's constitutional free speech provision in a manner which appears to extend the constitutional rights to standalone grocery stores."

We disagree with each of these contentions and shall affirm the judgment. As we will explain, Golden Gateway does not support defendants' position. The test that courts must apply is whether, considering the nature and circumstances of the private property, it has become the functional equivalent of a traditional public forum. Here, the nature and circumstances of the Albertson's store do not impress it with the character of a traditional public forum, nor do the setting and circumstances of the shopping center where it is located. And the fact that Albertson's has established content-neutral and nondiscriminatory rules and procedures by which expressive activity may be permitted on the store's premises does not impress it with the character of a traditional public forum.

FACTS

The parties' evidence established that the following facts existed at the time this dispute arose.

Albertson's store is located in Fowler Center, a shopping center between Grass Valley and Nevada City. The entire shopping center covers about 14 acres, comprised of seven separate parcels. The center has a total building area of 126,448 square feet and contains approximately 650 parking spaces.

Fowler Center is not a mall, and it does not contain any courtyards, plazas, picnic areas, gardens, educational facilities, health clubs, or gyms. All of the businesses are accessed from the large parking lot. The parking area and sidewalks in the center are available for the common use of the property owners, tenants, and customers for movement among the businesses at the center.

A declaration of restrictions and grant of easements mutually executed by owners of the parcels covered by the shopping center limits the uses of the common areas and provides that there will be no open or enclosed mall at the center unless Albertson's gives written consent thereto. The declaration of restrictions also prohibits certain types of businesses, such as theaters, bowling alleys, skating rinks, gyms, health spas, and pool halls, from being located in the center.

Albertson's representative explained that a mall setting is not conducive to the type of customer Albertson's tries to attract, and any type of business that would encourage people to congregate in or to otherwise remain at the center for longer time periods would be contrary to Albertson's marketing plan. This is because Albertson's does business as a convenience store with a goal of getting customers in and out of the store very quickly.

Albertson's, on parcel 2, is one of two "anchor" stores in Fowler Center; the other, on parcel 4, is B & C True Value Hardware, with about 37,000 square feet of interior space and 60,000 square feet of outside storage. The remaining five parcels in the center contain 10 retail stores, five restaurants or food retailers, and five service businesses, including a travel agency, photo store, video library, and mail box rental.

Albertson's privately owned parcel consists of about three and one-half acres, and includes the grocery store, the walkway in front which is the sole means of ingress and egress to the store, and a portion of a large parking lot directly in front. Within a radius of 200 feet of the store, there are about 189 parking spaces. The interior of the store contains 44,237 square feet, of which approximately 35,000 square feet are devoted to sales space and approximately 10,000 square feet are back room areas. Albertson's has exclusive control over its store area.

The store sells predominately food products and is a "typical supermarket." A breakdown of sales reflects that 75 percent of the purchases involve food merchandise and 25 percent are general merchandise. There are the standard food sections, such as frozen foods, service deli, bakery, produce, pet food, meat and seafood, dairy, and liquor; and the store contains a video rental section, a Tri Counties Bank, a plants and flower section, photo processing, health and beauty aids, cigarettes and tobacco, magazines and paperback books, a copy machine, and the rental of steam cleaning machines.

There are no areas in the store for people to congregate or to sit and eat and converse. There are no coffee bars and no public meeting areas. Albertson's considers the interior space to be too valuable to use for things other than sales.

The record establishes that the primary reason customers visit the store is to buy groceries. The general public is invited to shop there. Albertson's uses weekly newspaper advertising to encourage customers to shop at the store, but does not advertise in conjunction with any other retail establishment in Fowler Center.

Albertson's marketing objective is to give people easy access in and out of the store, which is designed for safe and efficient access. Customers can park directly in front of the store, and the store entrances are right next to the parking area. There is an express checkout stand to help customers get in and out quickly.

The walkway in front of Albertson's is just over six feet wide and 138 feet long. At either end of the walkway are entrance and exit doors. Directly in front of each set of doors, there are alcove areas of approximately 490 to 684 square feet in addition to the walkway area. The alcoves contain the grocery cart holding areas, water and soda dispenser machines, trash cans, a postal service mailbox, courtesy benches for customers, pay phones, and a bulletin board to display Albertson's weekly newspaper ads. On the front walkway, small propane tanks are available for sale. A recycling center, required by law, is located in the rear of the parking lot.

Albertson's infrequently offers items for sale on the sidewalk in front of the store, such as plants in the spring. In the past, two or three "truckload" seafood sales were held in the parking lot. At Christmas time, the store conducts a promotional photo shoot with Santa Claus to induce customers to return to the store to pick up photographs. Pursuant to company policy, the store can permit noncommercial expressive activity on the walkway portion of its premises in accordance with corporate time, place, and manner rules.

The Albertson's store experiences an average of 15,000 to 20,000 customers on a weekly basis. General market statistics reflect that some customers make several shopping trips per week. The store has under a 10 percent share of the local grocery store market, behind Safeway and Lucky's.

Nevada County, including the town of Truckee on the eastern side, had a population of 90,474 and...