Diamond v. Bland
| Decision Date | 10 July 1973 |
| Citation | 33 Cal.App.3d 385,109 Cal.Rptr. 248 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Roger Jon DIAMOND et al., Plaintiffs and Appellants, v. Frank BLAND et al., Defendants and Respondents. Civ. 12497. |
Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants.
Lederer, Fox & Grove, by Lawrence M. Cohen, Chicago, Ill., and Lonergan, Jordan, Gresham & Varner, by Allen B. Gresham, San Bernardino, for defendants and respondents.
In 1969, plaintiffs filed an action in the Superior Court of San Bernardino County. In it they alleged that the defendants refused to permit them the use of the premises of the Inland Center (a privately owned shopping center) to solicit signatures on their initiative petition and to disseminate information in connection therewith. The trial court denied both preliminary and permanent injunctions.
On appeal, this court affirmed the trial court. (Diamond v. Bland, 8 Cal.App.3d 58, 87 Cal.Rptr. 97.) The Supreme Court granted a hearing and reversed the trial court. (Diamond v. Bland, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733.) Certiorari was denied by the United States Supreme Court, 402 U.S. 988, 91 S.Ct. 1661, 29 L.Ed.2d 153. In 1971, the trial court granted the permanent injunction.
On June 22, 1972, the United States Supreme Court filed its opinion in Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. Lloyd involved an almost identical factual situation, 1 and the court reached a conclusion diametrically opposite to that of the Supreme Court of this state in Diamond. The parties then returned to the trial court which, on the authority of Lloyd, dissolved the permanent injunction. The parties again appeal.
The facts and issues are set forth in Diamond v. Bland, supra, and need not be repeated here. Based upon almost identical facts, Lloyd held that there was no basis for injunctive relief inasmuch as plaintiffs' First Amendment activities 'had no relation to any purpose for which the center was built and being used.' (Lloyd, supra, 407 U.S. at p. 564, 92 S.Ct. at p. 2226, 33 L.Ed.2d at p. 140.) Lloyd isolated three key factors in determining whether an owner's property rights must yield to permit First Amendment activities: (1) the private property has assumed 'to some significant degree the functional attributes of public property devoted to public use' (Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 546, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122, 128-129; (2) no adequate alternative avenues of communication exist (Lloyd, supra, 407 U.S. at p. 567, 92 S.Ct. at p. 2228, 33 L.Ed.2d at p. 141); and (3) a relationship between the purpose of the First Amendment activities and the business of the shopping center. (Lloyd, supra, 407 U.S. at p. 564, 92 S.Ct. at p. 2226, 33 L.Ed.2d at p. 140.) Here, the Inland Center is almost identical to the Lloyd Center and thus has not become the functional equivalent of public property under Lloyd; the invitation to the public is limited in nature. The circulation of the initiative petition was not directly related to the purpose for which the Inland Center properties were being used (Diamond v. Bland, supra, 3 Cal.3d at p. 663, 91 Cal.Rptr. 501, 477 P.2d 733), and plaintiffs have available to them effective alternative sites for their activities. (Ibid., at p. 662, 91 Cal.Rptr. 501, 477 P.2d 733.)
Plaintiffs attempt to avoid the impact of Lloyd on the following grounds:
(1) The trial court failed to explore the alternative means and locations whereby they could have effectively accomplished their petition circulation objectives, rejecting their offer of proof on this issue. However, the record of the trial court reflects substantial support for the court's conclusion that the plaintiffs had alternatives available. Indeed, the Supreme Court in Diamond said, (3 Cal.3d at p. 662, 91 Cal.Rptr. at p. 506, 477 P.2d at p. 738.)
(2) The failure of the United States Supreme Court to grant certiorari in Diamond in some way placed a judicial stamp of approval on that case. He cites no authority for such a startling contention, nor are we aware of any. Denial of certiorari is meaningless, especially where the court granted it in a virtually identical case and chose that case to expose its opinion.
(3) Lloyd is limited to covered mall areas and not exterior parking lots. No such distinction is to be found in Lloyd.
(4) Petition circulating is to be distinguished from the distribution of handbills (Lloyd), or solicitation (Central Hardware Co.). However, the Supreme Court said in Food Employees v. Logan Valley Plaza, 391 U.S. 308 at p. 315, 88 S.Ct. 1601 at p. 1607, 20 L.Ed.2d 603, 610, that the distinction between handbilling and picketing 'is immaterial so far as the question is solely one of right of access for the purpose of expression of views.' And in Homart Development Co. v. Fein (R.I.), 293 A.2d 493, fn. 1, the Rhode Island Supreme Court held that Lloyd was dispositive of the appeal in a case which involved nominating petitions. The concurrence of Chief Justice Roberts of that court is based solely on the compulsion of Lloyd; his opinion makes clear that in the absence of Lloyd he would have decided the case differently. We fail to find any meaningful distinction between petition circulating and handbilling.
(5) Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 and Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 'severely weaken' Lloyd. Hardly, Mosley and Grayned involve a totally different issue, i. e., the need to permit free expression of ideas in public places.
Lloyd involves no factual distinction from the instant case and is dispositive and controlling.
Plaintiffs contend that even though the United States Supreme Court may have overruled the Supreme Court of this state, that until the Supreme Court of this state expressly overrules its own holding in Diamond v. Bland, supra, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733, that case is binding on the lower court and on this court, citing Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.
However, in view of the changed legal position, the superior court clearly had authority to dissolve its prior injunction. (Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 94-95, 113 P.2d 689, 690; see also Union Interchange, Inc. v. Savage, 52 Cal.2d 601, 605, 342 P.2d 249.) The trial court properly applied the law as stated in Lloyd v. Tanner in dissolving the injunction.
Judgment affirmed.
In my opinion Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 is not dispositive of the case at bench. I shall try to state briefly why.
From time immemorial the market place, whether it be the country store of a small village or the business district of a metropolis, has been one of the traditional forums for discussion of public issues and communication of ideas. In recent years huge suburban regional shopping centers serving virtually all the family needs of inhabitants of surrounding cities and communities have largely displaced traditional downtown shopping districts. Immunizing these huge commercial centers from First Amendment activities would result in substantial diminution of effective forums of communication. It would leave the mass media, realistically accessible only to the wealthy, as the only effective means of communicating with the millions across the land who by virtue of these centers rarely find it necessary to visit downtown districts. Those individuals and groups without financial resources would be left to deserted and decaying downtown areas; hardly effective forums for communicating to that segment of the public sought to be reached. These, I believe to be irrefutable facts of contemporary American life.
The majority would interpret the 5 to 4 Lloyd decision nevertheless to mean that owners of these huge shopping centers may now declare their premises off limits to all First Amendment activities other than in exceptional situations where the message sought to be communicated is directly related to the business of the shopping center. I disagree with that interpretation.
While Lloyd rejected the broad implication of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, and Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, that private property serving the 'functional equivalent of a business [block]' must for First Amendment purposes be deemed the equivalent of public property, it did not at the same time adopt a doctrinaire position that all First Amendment activities except those directly related to the purpose for which the property is used may be barred. Instead, the court attempted to formulate principles whereby competing claims of property rights and First Amendment rights may be accommodated when privately owned property assumes 'to some significant degree the functional attributes of public property devoted to public use,' 1 mindful of the special solicitude courts have properly accorded First Amendment rights. It is in the...
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