H-Chh Associates v. Citizens for Representative Government

• Decision Date: 28 July 1987
• Docket Number: H-CHH
• Citation: 238 Cal.Rptr. 841,193 Cal.App.3d 1193
• Court: California Court of Appeals
• Parties: ASSOCIATES, a California Limited Partnership, dba Plaza Pasadena, and Hahn Property Management Corporation, a California Corporation, Plaintiffs, Respondents and Cross-Appellants, v. CITIZENS FOR REPRESENTATIVE GOVERNMENT, an Unincorporated Association, dba Pasadena Citizens for Representative Government, Dale L. Gronemeier, Christopher A. Sutton, and Ozro Anderson, Defendants, Appellants and Cross- Respondents. Civ. B019051.

Page 841

238 Cal.Rptr. 841

193 Cal.App.3d 1193

H-CHH ASSOCIATES, a California Limited Partnership, dba Plaza Pasadena, and Hahn Property Management Corporation, a California Corporation, Plaintiffs, Respondents and Cross-Appellants, v. CITIZENS FOR REPRESENTATIVE GOVERNMENT, an Unincorporated Association, dba Pasadena Citizens for Representative Government, Dale L. Gronemeier, Christopher A. Sutton, and Ozro Anderson, Defendants, Appellants and Cross- Respondents.

Civ. B019051.

Court of Appeal, Second District, Division 1, California.

July 28, 1987.

Review Denied Oct. 29, 1987.

Gronemeier, Barker & Huerta and Dale L. Gronemeier, Nicholas George Rodriguez, Brenda J. Penny, Christopher A. Sutton and Elbie J. Hickambottom, Pasadena, for defendants, appellants and cross-respondents.

Ball, Hunt, Hart, Brown and Baerwitz and Thomas J. Leanse and Charles M. Gale, Long Beach, for plaintiffs, respondents and cross-appellants.

Allen B. Grodsky, Robert B. Broadbelt, Beverly Hills, Antonette B. Codero, Gary Williams and Paul Hoffman, Los Angeles, for amicus curiae American Civil Liberties Union of Southern California.

SPENCER, Presiding Justice.

INTRODUCTION

Defendants Citizens for Representative Government and individual members thereof appeal from orders granting a temporary restraining order and a preliminary injunction to plaintiffs H-CHH Associates and Hahn Property Management Corporation. Plaintiffs cross-appeal from that portion of the order which invalidates their rules and regulations proscribing the solicitation of funds from or approaching plaintiffs' patrons.

STATEMENT OF FACTS

Plaintiffs own and operate privately an extensive shopping center in downtown Pasadena known as Plaza Pasadena. The two-story building complex contains approximately 600,000 square feet of rental space and caters to 125 commercial tenants. This area surrounds a central courtyard running the length of the mall interior. The area denominated "Garfield Court" is approximately 100 feet wide; the remainder of the courtyard is approximately 40 feet in width. The Plaza occupies several square blocks along the city's major thoroughfare and has replaced, for the most part, one of the city's major shopping districts. It is immediately adjacent to the Pasadena auditorium and convention center and within one block of City Hall. The city's redevelopment agency financed three underground parking garages extensively used by the Plaza and for which the Plaza pays rental fees. There is little access to the Plaza from public streets and the vast majority of Plaza patrons gain entrance through the city-owned parking garages. The land upon which the Plaza stands is city-owned, acquired through the exercise of its powers of condemnation.

On December 19, 1985, defendant Dale L. Gronemeier (Gronemeier), a member and representative of Citizens for Representative Government, approached Patricia K. Maude (Maude), the manager of Plaza Pasadena, expressing a desire to circulate leaflets and gather petition signatures on Plaza property. Maude supplied Gronemeier with a registration form developed by plaintiffs and a set of plaintiffs' written "Rules of Political Petitioning on Shopping Center Property." She also advised him that Plaza Pasadena would not permit the solicitation of signatures during the Christmas season. Gronemeier nevertheless informed Maude that Citizens for Representative Government would appear to solicit signatures on Monday evening, December 23, 1985.

The preamble to plaintiffs' written rules defines "political petitioning" as "any conduct by which an individual obtains signatures for any petition directed to any governmental or political body. These rules shall not be deemed or construed to permit any activity other than political petitioning, and the owners of the center reserve the right to prohibit any activity other than that described in these Rules and sanctioned by law."

Rule 1 of plaintiff's written rules provides in pertinent part: "Prior to engaging in political petitioning, a petitioner must notify the center management office and provide it with the name, address, signature of a responsible adult who, by said signature, expressly accepts full liability for damage, costs or expenses resulting from the proposed activity. Said liability shall include, but is not limited to, maintenance costs for cleaning up litter and expenses resulting from damage to persons or property or both." Rule 2 states: "If leaflets or other material are to be handed out ..., the petitioner must post a $50.00 security deposit to cover the cost of cleaning up litter which results from such activity. The deposit, less any expense incurred ..., shall be refunded approximately two weeks after said activity has ended."

Rule 3 requires that "All petitioners engaged in political petitioning shall use only that portion of the center property expressly designated for that purpose by the center management office." Rule 4 leaves the number of petitioners who may engage in political petitioning at a given time solely within the discretion of the management office. "This determination shall be based on the following factors: (1) the area available for such activities; (2) the number of petitioners who wish to engage in such activities at one particular time; (3) the potential for conflict between petitioners or between petitioners and members of the public; and (4) the safety of the public and center property." Similarly, Rule 5 leaves the time during which political petitioning may take place solely within the discretion of the management office and states that determination is to be based on the four factors enumerated in Rule 4.

Rule 6 provides: "Only that furniture ... approved by the center management office shall be used on the center property for political petitioning. Said furniture shall be located as prescribed by the center management office." Rule 7 states: "Posters, plaquards [sic ] and displays as well as their location and method of display shall be subject to the approval of the center management office. In no event shall such materials be affixed to any portion of the center property." Rule 9 prohibits the use of lights, loudspeakers or other electrical or mechanical equipment, while Rule 10 prohibits the use or operation of any musical instrument or sound reproduction device "in such a manner as to cause any sound or noise which, in the reasonable belief of the center management office, may be disturbing or offensive."

Rule 8 prohibits petitioners from making an "express or implied representation to any person within the center or on center property that the owner or the manager of the center sponsors or supports any view, belief, or request contained in any petition, statement or literature being disseminated or exhibited on center property." Rule 11 prohibits the solicitation of "contributions or donations from anyone on center property," as well as "the sale of any items or services on said property." Rule 12 requires that petitioners "not impede or interfere with the business of any center tenants, employees or personnel, nor shall they approach, detain, or in any way impede or interfere with the smooth flow and free passage of center patrons, customers or personnel through the access ways of the center."

Rule 13 provides: "If in the good faith judgment of the center management office the measure of the proposed political petitioning activity creates a risk of injury or damage to person or property, and that such a risk warrants special insurance protection, then the petitioner planning to engage in such activity must purchase and carry the necessary insurance coverage. Said insurance policy shall name as additional insureds Hahn Property Management Corporation, the center owner and the center Merchants' Association and petitioner shall provide the center manager prior to commencement of political petitioning with a valid certificate of insurance evidencing the same." Finally, Rule 14 promulgates standards of general decorum.

In addition to the written rules, plaintiffs have adopted the following unwritten rules which govern political activity on Plaza Pasadena property. A party seeking the use of Plaza property for political activity must fill out the written registration form; thereafter, he or she will receive notification within 72 hours of acceptance or rejection of the application. Apart from verifying that the activity involved is political rather than commercial, the management office is to have no concern with the subject matter of the activity. Generally, political activities are to be assigned to the Garfield Court area. No political activities will be authorized the day after Thanksgiving or during the latter part of December. The availability of the forum for the days requested must be confirmed; each applicant will be limited to two days unless no other request has been made for the third day and day-to-day thereafter. Political activities are to be manned by a maximum of two persons, and the Plaza will provide authorized display furniture only: a card table with table cloth and two chairs. The only articulated standard for denying an application is a determination that it will "adversely affect the shopping center environment, atmosphere, or image."

After consulting with Susan Roberts, director of marketing for Plaza Pasadena, Maude made a decision in the first week of December to prohibit political activity during the Christmas season. At that time, the Plaza accommodated a large Christmas tree, a Santa Claus display, an automobile raffle, a gingerbread house display and auction, booths for gift wrapping, mailing and gift certificates, a toy collection facility and various story book displays. In addition, Plaza traffic increased significantly at that time of the year, as evidenced by the increase in use of the parking structure during December 1984 from 214,051 automobiles to 344,500. Statistically,...