Diamond v. Bland

• Citation: 87 Cal.Rptr. 97,8 Cal.App.3d 58
• Court: California Court of Appeals
• Decision Date: 25 May 1970
• Parties: Roger Jon DIAMOND et al., Plaintiffs and Appellants, v. Frank BLAND Sheriff of San Bernardino County, et al., Defendants and Respondents. Civ. 10084.

Page 97

87 Cal.Rptr. 97

8 Cal.App.3d 58

Roger Jon DIAMOND et al., Plaintiffs and Appellants, v. Frank BLAND Sheriff of San Bernardino County, et al., Defendants and Respondents.

Civ. 10084.

Court of Appeal, Fourth District, Division 2, California.

May 25, 1970.

For Opinion on Hearing, see Cal.Rptr. 501, 477 P.2d 733.

Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants.

Lonergan, Jordan & Gresham, and Allen B. Gresham, San Bernardino, for defendants and respondents Homart Development Co., James Lambert and C. H. Barrettt.

Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, for defendants and respondents Frank Bland and Lowell E. Lathrop, Sheriff and District Attorney, respectively, of San Bernardino County.

Ralph Prince, City Atty., for defendants and respondents Mayor Al C. Ballard and Chief of Police Louis J. Fortuna of City of San Bernardino.

Lawrence M. Cohen, by comity, for defendants and respondents.

OPINION

GARDNER, Associate Justice.

This is an appeal from a judgment denying preliminary and permanent injunctions entered in the Superior Court of San Bernardino County.

All parties agree that this is a case of first impression. It presents the following constitutional question: May the owners of a privately owned shopping center deny the use of their premises to those who desire to use those premises for First Amendment purposes and activities unrelated to the business of the Center?

We hold that they may.

Plaintiffs are People's Lobby, Inc., a nonprofit California corporation, which at the time of the incident giving rise to this litigation was engaged in securing signatures on two anti-pollution initiative petitions; Roger Jon Diamond, attorney for People's Lobby, Inc.; and William Duxler, a volunteer petition carrier for People's Lobby, Inc.

Defendants are Homart Development Company which owns and operates a shopping center in the City of San Bernardino known as the Inland Center; C. H. Barrett, its security guard; James Lambert, its manager; the Sheriff and District Attorney of San Bernardino County and the Mayor and Chief of Police of the City of San Bernardino.

The Inland Center is located in a nonresidential area and is bounded by a drainage channel, a six-lane interstate highway and a commercial street. In industry parlance, it is a 'regional fashion center' which connotes a shopping center with only 'top line stores' which services a large geographical area. It contains a large parking lot, a totally covered, air-conditioned shopping complex which consists of three major stores--Sears, The Broadway and The May Company--and seventy-two 'tenant stores' all of which have an unobstructed front on the covered 'mall' or 'common aisleway.' The complex is surrounded by a six to eight foot wide sidewalk. Adjacent to the sidewalk are heavily traveled driveways and the parking lot.

The covered mall area is open during business hours to customers or those others doing business with the Center by means of entry through unlocked doors. Homart encourages customers to visit the mall in anticipation of increased sales for the tenant shops. It furnishes piped-in music, receptacles and benches on the thirty-two foot wide common aisleways. It forbids the tenant stores from engaging in sales or other activities on the mall aisleways and spends, along with the tenant stores, considerable sums of money to make the mall an attractive and convenient place for customers. Customers are also encouraged to come to the Center by means of promotions and generally unmanned displays conducted in the mall area pursuant to contractual arrangements and closely regulated by Homart as to time, date, location and format.

Under Homart's regulations all activity apart from such regulated, mutually beneficial promotions and displays, whether by tenants or strangers, is forbidden on the common aisleways of the mall area. This policy is an integral part of Homart's objective to create a pleasant and attractive area for customers to shop without congestion or interference. This policy is well established and enforced without discrimination. Pursuant to this policy, although the center receives many calls from all varieties of religious, charitable, fraternal and political groups who seek permission to use the Center property, all such forms of solicitation, distribution of material and like activity are and have been prohibited on the Center property.

Twenty-five thousand persons per day on the average shop and visit Inland Center. Persons visiting the Center customarily arrive by motor vehicle, drive into the parking lot which has passage ways governed by motor vehicle traffic regulations. At each entrance to the parking lot are 'no trespass' signs indicating that it is private property and admission is subject to revocation.

On October 28 and 29, 1969, representatives of Inland Center were asked by representatives of People's Lobby, Inc., for permission to gather signatures for their initiative petition and disseminate information in connection therewith. Although a request for use of the mall area was made, Homart was also asked if the uncovered six to eight foot sidewalk between the structural and the parking lot areas could be used. Both requests were denied. Appellants advised Homart that their activities would be orderly and that they would not obstruct anything although they would like to use a card table to gather signatures, but Hommart still rejected their request.

On October 30, 1969, at approximately 7:45 p. m., Duxler and another individual representing People's Lobby, together with a newspaper reporter and a photographer whom Duxler had requested to be present, entered the Center, went into the mall area and set up a standard size card table. There they proceeded to solicit signatures on the initiative petition, disseminate information with regard thereto, pass out bumper stickers, collect donations in a contribution container and affix a sign describing their purpose to the Center directory.

Shortly thereafter, Mr. Barrett, the security officer, observed a crowd of people congregating in the mall and proceeded to investigate the reason therefor. After ascertaining that Duxler and the other individuals were acting without permission, he requested that they cease their activity and leave the Center. They took down their card table, discontinued their activities and left the mall area, only to resume their activities on the exterior sidewalk. Again, Barrett requested they leave and this time they did.

The entire transaction lasted about half an hour during which time numerous persons signed the petitions. Other than the existence of the table and the activities of Duxler and the other individuals in securing the signatures on the initiative petitions, there was no 'disturbance' or 'disruption' in the usual sense of the use of those words. Everyone behaved admirably.

While no threat of prosecution was made nor was anyone arrested, the testimony is clear that if plaintiffs had not complied with Barrett's request, he would have reported the matter to Lambert, the Center manager, who, in turn, would have requested police assistance. The Chief of Police, in turn, testified that had his office been called upon, he would have removed persons from the Center at the request of Homart if they were in violation of the City Trespass Ordinance or a State Penal Code section defining trespass.

There were alternative means and locations whereby plaintiffs could have accomplished their desired objectives without utilizing the private property of the Center. The solicitation could have been undertaken on public sidewalks, in public parks, at public buildings, and at entertainment and sporting events. Other communication with the public admittedly could have been had through newspaper media, radio, television, telephone, door-to-door contact, bumper stickers and mailings. However, appellants contend, and we feel that the record substantiates the contention, that these methods are not as desirable or as effective as the use of a shopping center or mall where the public congregates in large numbers on foot.

On November 5, 1969, appellants filed a complaint for injunctive relief (which contained a prayer for declaratory relief) alleging that respondents' refusal to permit them to use the Inland Center premises to solicit signatures on their initiative petitions and disseminate information in connection therewith was in violation of their constitutional rights. A request for a temporary restraining order was denied, and, after a hearing on November 14, 1969, the request for a preliminary injunction was also denied. The parties then stipulated that the order of the trial court denying the preliminary injunction should also apply to the request for a permanent injunction and a judgment was entered accordingly on December 5, 1969. Notice of appeal was filed by appellants in this court on December 8, 1969.

A threshold question of mootness presents itself.

The parties urge and we agree that the case is not moot.

January 26, 1970, was the deadline for the securing of signatures for plaintiffs' initiative petition. The findings and judgment of the trial court were entered on December 5, 1969. Thus, when the case was before that court, the issues were clearly not moot. However, the time has now passed for the securing of additional signatures and at first blush it would appear that the case is now moot.

Generally, an action which originally was based upon a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. The appeal should be dismissed. The reason for this rule is that a reversal in such a case would be without practical effect. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 63 Cal.Rptr. 21, 432 P.2d 717; Consolidated Vultee Aircraft Corp. v. United Auto etc. Workers, 27...