Park Mgmt. Corp. v. in Def. Animals

Decision Date20 June 2019
Docket NumberA148425
Citation36 Cal.App.5th 649,248 Cal.Rptr.3d 730
CourtCalifornia Court of Appeals Court of Appeals
Parties PARK MANAGEMENT CORP., Plaintiff and Respondent, v. IN DEFENSE OF ANIMALS et al., Defendants; Joseph Cuviello, Intervener and Appellant.

Certified for Partial Publication.*

Joseph Cuviello, in pro. per., for Intervener and Appellant.

Amaro Baldwin, Michael L. Amaro, Sanaz Cherazaie, Long Beach, for Plaintiff and Respondent.


Animal rights activist Joseph Cuviello appeals the entry of a permanent injunction in this trespass action prohibiting him from demonstrating outside of Six Flags Discovery Kingdom, a privately owned amusement park located in Vallejo, California. Ruling on cross-motions for summary judgment, the superior court rejected Cuviello's federal and state constitutional claims that he had a right to picket there peacefully, as well as a common law defense based on a claimed prescriptive easement, and it entered judgment accordingly.

Cuviello appeals, raising both constitutional and non-constitutional issues. In the unpublished portion of this opinion, we conclude Cuviello failed to prove as a matter of law that he has acquired a common law prescriptive right to protest there. In the published portion, we hold as a matter of first impression that the exterior, unticketed areas of the amusement park are a public forum for expressive activity under article I, section 2 of the California Constitution, and accordingly we reverse the judgment.


Respondent Park Management Corp. (Park Management) owns and operates Six Flags Discovery Kingdom, an amusement park in Vallejo, California that features rides as well as animal attractions. Its attendance can reach more than 15,000 patrons daily.

Situated on 138 acres, the amusement park consists of a ticketed interior portion where the entertainment activities are located, accessible through a single point of entry and exit, and an exterior portion where there is an admissions area connected by a series of walkways and streets to a paid parking lot that accommodates up to 2,900 cars, with tram service for transporting guests to the admissions area.1 The exterior admissions area contains ticket windows and thirteen turnstiles, and is approximately 200 feet wide and 150 feet deep. Adjacent to the parking lot's gated entrance is a public sidewalk that runs along Fairgrounds Drive, a street bordering the park's eastern boundary.

The exterior areas of the park (i.e., those outside the ticketed area), including the front admissions area, the parking lot and the walkways that connect them, do not have any areas where guests may gather and stay for any period of time other than for the purpose of waiting for, or meeting, friends or family going into the amusement park. Those areas do not offer outdoor performances or other entertainment activities. In addition, it is undisputed that the front entrance area does not include any common areas for guests to congregate for the purpose of entertainment, but merely facilitates the guests' entrance to and exit from the park.

The amusement park is situated on land that, according to local law and land use planning instruments, bears some public attributes. The City of Vallejo's General Plan designates the land as a "Community Park" (or, alternatively, as "Open Space—Community Park"); that designation is defined as including "public and other types of developed recreation areas, state and county parks, and buffer areas. Typical uses include golf courses and neighborhood parks." (Italics omitted.) And under the City of Vallejo's zoning code, the property falls within the city's "public and quasi-public facilities zoning district," an area that is defined as one in which "community facilities of a public nature are the principal use" and that is intended to "implement those policies of the land use element of the Vallejo general plan which relate to governmental, and quasi-governmental services, schools, parks and open space areas."

For many years (since at least the 1990s), the amusement park was municipally owned but privately operated. Operating at the time under the name "Marine World" (or "Six Flags Marine World"), the theme park was located on property owned by the City of Vallejo which, through a series of agreements with other governmental agencies,2 leased a portion of the property to Park Management which operated the theme park pursuant to a separate management agreement. Park Management received a management fee and paid the city only nominal rent ($ 1/year) and 20 percent of net revenues. It also had an exclusive option to purchase the entire property, including the theme park assets.

In May 2006, a federal district court entered a preliminary injunction, over the opposition of Park Management but unopposed by the City of Vallejo, recognizing the constitutional right of an individual named Alfredo Kuba to protest with up to ten other people at the park's front entrance, located on the public portion of the property. Kuba had twice been arrested there, and wanted to protest there during the upcoming, heavily attended Memorial Day weekend. Deciding the question solely under state law, the district court ruled that the areas around the park's entrance are public fora under California's free speech clause, and that the park's public assembly policy (which barred the activity) was not a reasonable time, place or manner restriction and was therefore unconstitutional.3

The following year, Park Management exercised its purchase option and, in July 2007, acquired the park from the city for approximately $ 53.9 million. It has owned and operated the entire park ever since.

Although the parties do not focus on many details of the 2007 acquisition, the record reflects continuing local governmental involvement in the park notwithstanding the transfer of title.4 As part of the acquisition, the City of Vallejo entered into a 25-year development agreement with Park Management in which the city contractually committed to retain the park's zoning designation as "public and quasi-public facilities." In return, Park Management agreed to pay the city a percentage of annual admissions revenue, an income stream their agreement characterizes as a "park operation fee" and treats as separate from (and therefore in addition to) municipal taxes, assessments and fees.5 The operation fee is intended to guarantee the city at least 45 percent of Park Management's gross revenues.6 In addition, in a separate agreement (entitled, Owner Participation and Cooperation Agreement), the city's redevelopment agency agreed to contribute up to $ 7 million dollars to finance the construction of a new 2,450-spot parking structure on publicly owned, county fairgrounds that would be leased to Park Management. The latter agreement recited that the redevelopment agency wanted the improvements made "for the public benefit," in conjunction with renovations to the park property itself. The public funding was expressly conditioned, though, on Park Management's commitment to operate the amusement park for 10 years, a commitment they agreed would run with the land.7

After the 2007 acquisition, Park Management began limiting free speech at the park in increasingly restrictive ways. Several months after the acquisition, in the fall of 2007, it revised the amusement park's free speech policy to relegate expressive activity to specified locations.8 Then in 2014, approximately seven years after the park had transferred to private ownership, Park Management again revised its free speech policy in response to a recent, unpublished trial court ruling that another theme park, Sea World in San Diego, was not constitutionally required to allow protests or demonstrations in its own parking lot or entrance area. Park Management's new (and final) policy banned all expressive activity at Six Flags Discovery Kingdom, including protests, relegating such activity instead to the nearby public sidewalk.9

On April 13, 2014, about a month after the new speech ban took effect, approximately eight people protested against the park's treatment of animals at the park's front entrance area, and a ninth person handed out leaflets in the parking lot. They wore large signs around their necks carrying messages such as, "Theme Parks are no place for animals"; "RIP" (with a picture of an elephant); "A day of fun for you ... a lifetime of misery for him" (with a photograph of a whale in a tank); "Animals Don't Belong at Six Flags"; and "This pool is a prison" (with another photograph of a whale in a tank). The protesters also held a large yellow banner that stated, "NOT FUN FOR ANIMALS." Security personnel approached them, handed out copies of the park's speech regulations and asked the protesters to move to the public sidewalk, but the protesters declined and remained at the front gate for three hours without the park's consent or authorization. Park Management contacted the local police department and the local district attorney's office, both of which declined to intervene without a court order.10

One of the protesters was Joseph Cuviello, who had been advocating for the humane treatment of animals for decades, including at many public venues in California. Since the early 1990's, Cuviello had participated in many demonstrations at the front entrance area of Six Flags Discovery Kingdom, including numerous times in the seven years the park had been under private ownership. He couldn't recall the exact number, but in some years he had attended more than four demonstrations annually.11 After the park became privately owned, park employees "periodically" would tell Cuviello to move to a different location on the property or offsite, but he never did. He was never accused of interfering with normal business operations, either by park personnel or the police. Although the park received complaints from some patrons who didn't appreciate the protesters' message, it is undisputed...

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