Savage v. Trammell Crow Co.

• Decision Date: 24 September 1990
• Docket Number: No. D010668,D010668
• Citation: 273 Cal.Rptr. 302,223 Cal.App.3d 1562
• Court: California Court of Appeals Court of Appeals
• Parties: Herbert C. SAVAGE, Plaintiff and Appellant, v. TRAMMELL CROW COMPANY, INC., et al., Defendants and Respondents.

Page 302

273 Cal.Rptr. 302

223 Cal.App.3d 1562

Herbert C. SAVAGE, Plaintiff and Appellant, v. TRAMMELL CROW COMPANY, INC., et al., Defendants and Respondents.

No. D010668.

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

Sept. 24, 1990.

As Modified on Denial of Rehearing

Oct. 17, 1990.

Review Denied Dec. 13, 1990.

Herbert C. Savage, in pro per

Robert M. Gans, Keith A. Jones and Gans & Blackmar, San Diego, for defendants and respondents.

INTRODUCTION

BENKE, Associate Justice.

In this case a security guard for a shopping center prevented plaintiff Herbert C. Savage from distributing religious tracts in the shopping center parking lot. In response Savage filed a complaint against the management company which is responsible for operation of the shopping center and the security company which employed the guard. Among other relief, Savage sought a preliminary injunction permitting him to distribute his tracts in the parking lot. In opposing Savage's application for an injunction, the shopping center argued litter and traffic problems justified its prohibition on leafletting in the center's parking lot. The trial court denied the injunction as well as Savage's request the trial judge disqualify himself because of the trial judge's religious beliefs.

In addition to opposing Savage's request for injunctive relief, the management company brought a demurrer to the complaint on the grounds Savage had no right to engage in other than political petitioning anywhere at the shopping center. The trial court sustained the demurrer without leave to amend and entered an order dismissing the complaint.

We affirm in part and reverse in part. The owner of a shopping center may impose reasonable limits on the time, place and manner of such activity. We conclude the shopping center presented persuasive evidence its prohibition against leafletting in the parking lot is such a limitation. Thus, we affirm the order denying Savage a preliminary injunction allowing leafletting in the parking lot. We also affirm the trial judge's refusal to disqualify himself. However, the owner or operator of a shopping center may not draw distinctions between "political" and "religious" speech. Thus, the defendants' written prohibition against nonpolitical expression gave rise to a cause of action against them. Accordingly we reverse the judgment dismissing the complaint.

SUMMARY

According to his verified complaint, Savage went to the Del Norte Plaza Shopping Center in Escondido on May 25, 1989, and attempted to place gospel tracts on cars in the parking lot. ¹ Savage was stopped by On the following day, Savage spoke with Brenda Foster, an employee of defendant Trammell Crow Company, Inc. (Trammell Crow). Trammell Crow manages the shopping center. According to Savage, Foster told him she would not permit him to distribute his gospel tracts in the parking area of the shopping center and that the policy was her policy.

a security [223 Cal.App.3d 1569] guard who told him the parking lot was private and that he had no business putting the tracts on cars in the shopping center.

On June 2, 1989, Savage filed a complaint against Trammell Crow and the security service for the shopping center, defendant Heritage Security Services, Inc. (Heritage). The complaint alleged the defendants' conduct violated Savage's constitutional rights.

On the same day Savage filed his complaint, the superior court issued an order to the defendants to show cause why a preliminary injunction permitting Savage to distribute his tracts should not issue. In particular the order stated the defendants would be restrained from the "threatened arrest, arrest, [harassment], and prosecution of plaintiff for distribution of religious tracts in parking areas of Del Norte Plaza Shopping Center."

In response to the order to show cause, Trammell Crow submitted the declaration of one of its partners, Ron Burns. Burns stated Del Norte Plaza had certain " 'Rules and Regulations Relating to Use of Shopping Center Property for Purposes of Political Expression'." According to Burns's declaration, the rules and regulations provide in part: " 'These rules shall not, by implication or otherwise, be deemed or construed to permit any activity other than Political Expression [as defined], and the owners of the center reserve the right to prohibit any activity other than that specifically described in these rules.' " Burns's declaration further stated that the term "political expression" is defined by the rules and regulations as " 'activities ... in obtaining signatures to any petition directed to any governmental or other political body or in disseminating political information.' "

With respect to leafletting in the parking lot, Burns stated: "We have consistently prohibited the distribution of leaflets, flyers and handbills in the parking lot, and we have uniformly applied that prohibition." A letter Burns sent to one of the center's tenants stated: "I am writing in regard to your [run-in] with Center Security on April 16, 1989 when flyers were being placed on vehicles in the parking lot. [p] ... Section 16, Paragraph 3 (Common Areas) of the Lease gives the Landlord the right to 'establish and enforce reasonable rules and regulations applicable to all tenants concerning the maintenance, management, use, and operation of the common areas'. [p] My policy on flyers is that they are prohibited." The letter was attached to Burns's declaration.

On July 5, 1989, prior to the hearing on the order to show cause, Trammell Crow and Heritage filed a demurrer to Savage's complaint in which they alleged his complaint failed to state facts sufficient to constitute a cause of action. They argued the Supreme Court's opinion in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins ), only provided California citizens with the right to conduct "political" activities at privately owned shopping centers. Because in distributing his gospel tracts Savage was advancing his religious beliefs, the defendants asserted they had the right to completely prohibit his activities at the shopping center. In the alternative they argued the center's prohibition on leafletting in the parking lot was a reasonable limitation on the time, place and manner of political or religious activity.

The trial court heard argument on the order to show cause on July 7, 1989, and refused to issue the preliminary injunction.

On July 17, 1989, Savage submitted to the court a motion for rehearing in which he alleged the judge who heard the order to show cause, Hon. Robert J. O'Neill, was a Roman Catholic and therefore biased against him and his efforts to spread the gospel.

Judge O'Neill heard argument on the demurrer on July 26, 1989, and sustained it without leave to amend. On the same day Judge O'Neill entered an order denying Savage's motion for rehearing.

Immediately following the hearing on the defendants' demurrer, Savage filed a notice of appeal from the order denying the preliminary injunction, the order sustaining the demurrer and the order denying his motion for rehearing.

An order dismissing the complaint was entered on August 16, 1989.

DISCUSSION

I Preliminary Injunction

A. The Parking Lot Prohibition

The order to show cause which Savage filed asked the trial court to grant him the right to distribute religious tracts "in parking areas of Del Norte Plaza Shopping Center." Burns's declaration, submitted in opposition to the preliminary injunction, states: "A primary reason why ... distribution [in the parking lot] has been prohibited is because of the litter which inevitably results when hundreds of flyers are distributed by one or more groups. This prohibition has been uniformly enforced regardless of the nature or contents of the leaflets.... [p]The parking facilities of the Del Norte Plaza are typical of other smaller centers. While trash containers are located in the Plaza's common area walkways adjacent to stores, we do not have trash containers placed in our parking facilities. In that regard, I believe that the placement of leaflets or flyers on unoccupied automobiles (or handing such flyers to individuals in the parking lot) would substantially increase the litter problem, as such handbills can be dislodged from unoccupied cars by wind; further, a patron of the center finding an unwanted leaflet on his automobile may be inclined to simply throw the leaflet on the ground as he is entering his car, as trash containers are not placed next to each parking space. Moreover, I am concerned that the distribution of such handbills within our parking facilities may unduly hamper ingress and egress patterns within the parking facilities, particularly if there are several individuals distributing such leaflets in the parking lot. This would not only inconvenience our patrons but potentially increase the occurrence of traffic accidents." As we have previously noted, attached to Burns's declaration was a letter he recently wrote to a tenant enforcing the parking lot prohibition.

In seeking a preliminary injunction, Savage bore the burden of demonstrating both likely success on the merits and the occurrence of irreparable harm before a final judgment could be entered. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840.) ² In our view Burns's declaration was sufficient to defeat Savage's request for a preliminary injunction because the declaration demonstrated Savage was not likely to succeed in establishing a right to distribute his tracts in the parking lot. As we explain in greater detail below, the ban on parking lot leafletting is a valid regulation of the time, place or manner of activity otherwise protected by the California and federal Constitutions.

B. Regulation of Time, Place or Manner

In Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 567-570, 92 S.Ct. 2219, 2228-2230, 33 L.Ed.2d 131, the United States Supreme Court held the...