Horton Plaza Associates v. Playing For Real Theatre

• Decision Date: 05 August 1986
• Citation: 228 Cal.Rptr. 817,184 Cal.App.3d 10
• Parties: Previously published at 184 Cal.App.3d 10 184 Cal.App.3d 10 HORTON PLAZA ASSOCIATES, Plaintiff and Respondent, v. PLAYING FOR REAL THEATRE et al., Defendants and Appellants. D004421, D004518.
• Court: California Court of Appeals Court of Appeals

Page 817

228 Cal.Rptr. 817

Previously published at 184 Cal.App.3d 10

184 Cal.App.3d 10

HORTON PLAZA ASSOCIATES, Plaintiff and Respondent, v. PLAYING FOR REAL THEATRE et al., Defendants and Appellants.

D004421, D004518.

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

Aug. 5, 1986.

Review Granted October 23, 1986.

Thomas F. Homann, San Diego, for defendants and appellants.

Gregory Marshall, ACLU Foundation of Southern Cal., San Diego Chapter, San Diego, for defendants and appellants.

Peterson, Thelan & Price and Robert M. Gans and George B. Blackmar, San Diego, for plaintiff and respondent.

KREMER, Presiding Justice.

These are consolidated appeals of defendants, Playing for Real Theatre and William Phipps (hereafter Defendants) from a temporary restraining order and preliminary injunction preventing them from performing a play expressing a political viewpoint in the shopping center known as Horton Plaza and owned by respondent Horton Plaza Associates (Horton). The temporary restraining order has been superseded by the preliminary injunction and is no longer in issue, but defendants ask us to consider its validity along with the injunction because important rights of freedom of expression are involved and the nature of a temporary restraining order is to expire Because the injunction operates as a prior restraint of defendants' expressive conduct and speech (see, e.g., Wilson v. Superior Court (1975) 13 Cal.3d 652, 660, 119 Cal.Rptr. 468, 532 P.2d 116), they are entitled to prompt appellate review (National Socialist Party v. Skokie (1977) 432 U.S. 43, 44, 97 S.Ct. 2205, 2206, 53 L.Ed.2d 96). In lieu of issuing a writ of supersedeas we have chosen to accelerate the appeals (cf. KGB, Inc. v. Giannoulas (1980) 104 Cal.App.3d 844, 164 Cal.Rptr. 571 [supersedeas] ).

after a brief period, evading appellate review. (See United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 906-907, 122 Cal.Rptr. 877, 537 P.2d 1237.)

In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, the California Supreme Court held the California Constitution (art. I, § 2) protects the right to gather signatures at a private shopping center. The United States Supreme Court had held the First Amendment does not guarantee any rights of expression on private property such as a shopping center (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131; Hudgens v. NLRB (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196); nevertheless it affirmed the Pruneyard decision, permitting states to balance rights of expression under state constitutions against rights of private property ownership (Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741). Accordingly, California law protects rights of free expression in shopping centers, subject to reasonable time, place and manner regulations to ensure noninterference with business operations (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341).

The issue here is whether the injunction forbidding the performance of defendants' play under the facts presented by this record constitutes a reasonable regulation, or whether, as defendants allege, it is an impermissible restriction of freedom of speech.

THE RECORD

On April 4, 1986, Horton filed its complaint seeking injunctive relief against defendants "arising out of trespass to real property, nuisance, and interference with prospective economic relationship." It alleged ownership of the multistory shopping center known as Horton Plaza, occupied by four major tenants and approximately 120 other tenants. The Center occupies the area of downtown San Diego stretching from Broadway to "G" Street and from First to Fourth Avenues (with certain small non-included areas). It covers an approximate area of nine square blocks. The Center (according to the supporting declaration of its manager, Robert T. Dobson) contains approximately 700,000 square feet of leasable area and encompasses approximately 10.6 acres of the main shopping and business district in San Diego. It has no "center court" area or amphitheater, but only four limited staging areas, none of which exceeds 200 square feet in area. Individuals or groups desiring to exercise constitutionally-protected rights at Horton Plaza are allowed the use of a "community cart" and two chairs at one of these four specified locations in the Center, allegedly the only areas which can accommodate such activity.

The complaint further alleges on information and belief that beginning April 5, 1986, defendants intend to enter Horton Plaza during business hours and conduct a political play or "skit" in one or more unspecified locations. Eight or more individuals will be involved. Defendants will also distribute literature, engage patrons in political discussions, circulate petitions, and otherwise attempt to attract attention to, and sympathy for, their causes and organizations. Further, defendants intend to create a disturbance at the Center in order to attract media attention and publicize their cause. Such conduct, it is alleged, will directly and significantly disrupt normal business operations at Horton Plaza Horton prayed for an injunction restraining the above-described conduct and from any use of Horton's property unless such use adheres to Horton's regulations.

decreasing the rental value of the property and harming the reputation of the Center. Also, the viewpoint expressed by the play may mistakenly be attributed to the Center; customers may believe the Center management endorses the activity. Finally, these anticipated activities will be without Horton's approval and will violate the Center's rules and regulations.

Accompanying the complaint was a request for a temporary restraining order and declaration by Robert M. Gans, counsel for Horton. Gans alleged a San Diego police detective, Oberlies, said he had learned from an unidentified confidential source that a political street theater group planned a demonstration to occur in the Center about April 5, 1986, protesting warfare in Central America. According to Oberlies, the group would first demonstrate in the area known as Horton Plaza Park, immediately in front of the Center, to draw public attention, and then would come into the Center for further political demonstrations. The objective was to create a disturbance within Horton Plaza to attract attention and publicize the cause. Further, according to the Gans' declaration, Oberlies advised it appeared the group intended to create problems, possibly including physical violence, and then to commence legal action against the owners of the Plaza.

Oberlies would not sign a declaration nor reveal his source of information, according to the Gans' declaration.

The Center manager, Dobson, also filed a declaration describing the Center and incorporating a copy of its Rules and Regulations regarding political expression. He alleged that persons wanting to exercise constitutional rights at the Center must give 72-hours' notice and fill out a registration form. He grants or denies such applications without any reference to the subject matter of the activity other than to verify that the activity is not commercial. He normally responds to these requests within 24 hours. Such activities are only allowed in one of the four staging areas and are restricted to use of the "cart" and two chairs. The Plaza has allowed, in fact encouraged, programs of "street performers" in the Center, but these "typically" number no more than one or two at a time.

Dobson also said defendant William Phipps asked permission to perform a play of political expression at the Center with up to eight actors. Dobson denied the request due to the lack of proper staging areas and related concern over fire regulations and shopping access. He did approve a request to distribute leaflets.

He expressed a concern that performance of a political play at the Center may cause customers to associate Plaza management with the particular viewpoint expressed.

In addition to the declarations of Gans and Dobson, the request for a temporary restraining order included a copy of the Plaza's Rules and Regulations Relating to Use of Shopping Center Property for Purposes of Political Expression. These Rules begin by saying the Center is a privately-owned commercial center which has not been dedicated to public uses and "[n]either the center nor the owners acquiesce in the majority opinion of the California Supreme Court in the case of Robins v. Pruneyard." However, the Center and its owners say they will "follow the directives of the opinion as we understand them" until "there is a definitive resolution of the issues raised in the opinion by the United States Supreme Court," and they then proceed to state rules which govern the time, place and manner of politically-related activity in the Center.

The Rules require obtaining a permit for political expression in the Center on a 72-hours' notice. There must be full disclosure of the identity of the proponents and the topic of the proposed expression. The following policy concerning permit issuance is stated:

"B. Policy Concerning Issuance of Permits "(1) Only one permit to any one person or group or organization will be issued per day.

"(2) A permit shall allow the holder to use only the portion of center property expressly designated and specified in the permit.

"(3) The office of the Center manager shall have the power to deny a request for a permit if the manager in good faith believes the proposed Political Expression to be profane, indecent, disturbing, offensive, in poor taste, or otherwise not conducive to the controlled business environment of the shopping center.

"(4) The number of persons who may engage in Political Expression in the Center at the same time shall be determined by the owner. Such number shall be determined with reference to...