Slauson Partnership v. Ochoa, B162900.

• Decision Date: 23 October 2003
• Docket Number: No. B162900.,B162900.
• Citation: 5 Cal.Rptr.3d 668,112 Cal.App.4th 1005
• Parties: SLAUSON PARTNERSHIP et al., Plaintiffs and Respondents, v. Richard OCHOA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

5 Cal.Rptr.3d 668

112 Cal.App.4th 1005

SLAUSON PARTNERSHIP et al., Plaintiffs and Respondents, v. Richard OCHOA, Defendant and Appellant.

No. B162900.

Court of Appeal, Second District, Division 7.

October 23, 2003.

As Modified Oct. 29 and Nov. 6, 2003.

Rehearing Denied Nov. 7, 2003.

Reich, Adell, Crost & Cvitan, J. David Sackman and Carlos Perez, Los Angeles, for Defendant and Appellant.

Roger Jon Diamond, Santa Monica, for Plaintiffs and Respondents.

MUÑNOZ (AURELIO), J.^*

Richard Ochoa (Ochoa) appeals from an order denying his special motion to strike plaintiffs' complaint under Code of Civil Procedure ¹ section 425.16.² He contends that free speech activities in protest of an adult strip theater at plaintiffs' minimall are protected by the California Constitution's free speech clause, which allows access to privately owned commercial facilities open to the public for purposes of expressive activity (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341). Furthermore, he argues that because the standards for obtaining an injunction and prevailing on an anti-SLAPP motion are distinct, the trial court's entry of an injunction against him confining his activities to a public sidewalk cannot be the basis of the denial of his motion to strike.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

We recite the relevant facts. Plaintiff Slauson Partnership (Slauson) is the owner of a minimall in Pico Rivera (Mall). In January 2002, Slauson leased a portion of the premises to LeRoy Smith, Glenn Smith, and SGRL Investments, Inc. (collectively Smith). Smith opened a club offering nude entertainment known as Imperial Showgirls (the Club).³

The Mall covers approximately 1.26 acres and, there are public driveways and sidewalks on all four sides of the lot. The Mall has 16 different-sized leaseable units. Thirteen of the rental units are in a horizontal single-story building with a private sidewalk approximately 13 feet wide in the front. The other three units are detached and located in the parking lot. The Club occupies four units in the center of the main building.

Ochoa is the pastor of the Lord's Vineyard (Church), a church located in Pico Rivera near the Club. The Church has a membership of about 200, and most members of the Church live within a two-mile radius of the Church. In late February 2002, Ochoa learned that the Club, an adult strip club featuring nude entertainment, had opened in a nearby mall. The Club is located about 1,000 feet from the Church.

Upon learning of the Club's presence, on March 1, 2002, Ochoa organized and held a prayer meeting of Church members. Immediately after the prayer meeting, the Church members walked to the location of the Club to protest its opening. Prior to this protest, the Church had notified the local sheriffs department of their intent to protest at the Mall.

As a result of the Church's ongoing protests at the Club, on April 29, 2002, Slauson filed a complaint for injunctive relief against Ochoa and Does 1 through 5000 to enjoin the protest activities of Ochoa and the Church at the Mall. Slauson alleged that Ochoa and the Church were harassing and intimidating the tenants, employees of tenants, and customers of tenants of the Mall. Slauson alleged that the defendants had obstructed access to parking, shouted at patrons of the Mall, "congregate[d] on the property so as to preclude the businesses from functioning, march[ed], scream[ed], and refuse[d] to leave." The complaint requested injunctive relief enjoining Ochoa from coming onto the Mall property and restricting the protesting to the public sidewalk. The complaint also sought damages and attorneys' fees, but those requests were later withdrawn.

The complaint further alleged that "[i]f Defendants wish to protest any business at the strip mall they should do so in an orderly fashion from the sidewalk leaving appropriate spaces for patrons of the businesses at the strip mall to be able to enter the parking area and patronize the various businesses." Slauson alleged that it was suffering irreparable injury as a result of defendants' conduct and was in danger of losing tenants.

Defendant moved to strike the complaint pursuant to section 425.16. In support of the motion, Ochoa submitted his own declaration, and the declarations of two tenants at the Mall, Yithan Chau (Chau) and Elva Ruiz (Ruiz), and requested the trial court take judicial notice of the federal action.

The Ochoa declaration stated that the opening of the Club had been controversial in Pico Rivera, and the Club was located in a primarily residential area. City officials had attempted to close the Club. The protests at the Mall were directed at the Club only. Ochoa had personally attended "most of the protests against the Club." Although he did not know all of the protestors by name, it appeared to him based upon his conversations with many of them that they were "middle-aged residents of the City." Many were not associated with the Church, and Ochoa did not know them personally. He admitted taking a "semi-leadership role" in coordinating daily protest activities, but he contended there were other churches and local organizations participating in the protests. An additional aim of the protests was to publicize the Club's violation of local ordinances prohibiting lap dancing and permitting customers to enter through a rear door.

Prior to initiation of the protests in March 2002, Ochoa, LeRoy Smith, other protestors, and a representative of the local sheriffs department sat down to establish "ground rules" for the protests. Ochoa and the other protestors agreed hot to block any entrances to the property, not to block any parking spaces, and not to interfere in any unlawful manner with any of the businesses in the Mall. Ochoa handed out a flyer urging protestors to be courteous and not to use noisemakers. At no time has Ochoa observed or encouraged any unlawful conduct at the protest site. He has avoided profanity, physical confrontations, and any other conduct which might be considered un-Christian.

According to Ochoa, on the days that Ochoa had been present at the protests at the Mall, protestors had peacefully patrolled the sidewalk in front of the Club in an area away from the entrance. On the first day of protests, about 300 people showed up, but on average, there have been about eight to 15 protestors every day. The sidewalk is about 13 feet wide and therefore has enough room for protestors to walk past patrons without confrontation. Protestors generally carry signs that are three feet by two feet, and do not hand out bills or leaflets. Some protestors chant, but they do not use bullhorns or other noisemakers because the local sheriffs have asked the protestors not to use them. Those protestors who are not "patrolling" stand about 30 feet away from the Club in what is known as the "safety zone," which does not incorporate any parking spaces and does not block any cars. Because the Club is closed during the day, protestors are generally there at night when many of the tenants of the Mall are closed.

At no time has Ochoa or any of the other protestors expressed an intent to harm anyone. The purpose of the protests is to let the owners of the Club know that they are not welcome in the area. That is why the protests are held in front of the Club, and not on the sidewalk outside the Mall. The Club is only a short walking distance from schools and churches in the community. During the protests, the protestors have patronized many of the shops in the Mall, including a donut shop, a haircutting salon, and a 7-Eleven.

The local sheriffs department has sent over sheriffs on a daily basis to supervise the protest activity, and to ensure the safety and peace. If there had been any complaints or incidents, the sheriffs would have intervened and put an end to the protesting. So far, the sheriffs had monitored but not interfered with the protestors' activities.

Prior to the commencement of the instant action, Ochoa had never been contacted by the Mall's owners and asked to leave. Slauson's property manager, Brian Gordon, once asked Ochoa if he had a job or somewhere better to spend his time. Ochoa was aware of no tenant displeased with the protest activity, other than the owners of the Club. Ochoa understood the allegations of the complaint to ask the protestors to stand on a public sidewalk facing the boundaries of the Mall, which was about 100 feet from the Club. Ochoa did not believe this would be safe as the sidewalk was narrow and bordered a busy street. In addition, the public might get the impression the protestors were calling for a general boycott of the Mall, which was not the case.

According to Ochoa, the instant lawsuit had a "chilling effect" in that several protestors had approached him and expressed some concern that they, too, could be the targets of a lawsuit. The number of protestors has dropped steadily since April 30, 2002, the date Ochoa was served with the complaint. The fact the complaint names 5000 "Doe" defendants implies that Slauson will include as many protestors as possible.

The declaration of Yithan Chau stated that he was the owner of Homestyle Donuts, located at the Mall. He had witnessed some of the protest activity. No protestor had interfered with his business, nor had he seen any protestor abuse customers or engage in violence. Most of the protestors had been friendly and peaceful. He has not observed any other tenant of the Mall to ask the protestors to leave.

The declaration of Elva Ruiz stated that she was the owner of a beauty salon at the Mall. She had witnessed some of the protest activity, and no protestor had interfered with her business. She had not seen any protestor abuse any customer or engage in any violence. Most of the protestors had been friendly and peaceful. She was not concerned that the protest would interfere with her business, and has not asked any protestors to...