Trader Joe's Co. v. Progressive Campaigns

• Decision Date: 08 July 1999
• Docket Number: No. A083723,A083723
• Citation: 73 Cal.App.4th 425,86 Cal.Rptr.2d 442
• Court: California Court of Appeals Court of Appeals
• Parties: , 1999 Daily Journal D.A.R. 6967 TRADER JOE'S COMPANY, Plaintiff and Respondent, v. PROGRESSIVE CAMPAIGNS et al., Defendants and Appellants.

Page 442

86 Cal.Rptr.2d 442

73 Cal.App.4th 425, 1999 Daily Journal D.A.R. 6967

TRADER JOE'S COMPANY, Plaintiff and Respondent, v. PROGRESSIVE CAMPAIGNS et al., Defendants and Appellants.

No. A083723.

Court of Appeal, First District, Division 2, California.

July 8, 1999.

Dale L. Gronemeier Marina A. Llata Gronemeier & Associates, P.C., South Pasadena, Attorneys for Defendants and Appellants.

Gordon E. Krischer, Los Angeles, Douglas E. Dexter, William Franklin Birchfield, III, O'Melveny & Myers LLP, San Francisco, Attorney for Plaintiff and Respondent.

HAERLE, J.

I. INTRODUCTION

Appellants attempted to obtain signatures for initiative petitions from individuals patronizing the Trader Joe's store in Santa Rosa. Trader Joe's objected and halted the petitioning activity being conducted in front of its store entrance. In its subsequent trespass action, Trader Joe's obtained a preliminary injunction banning appellants from soliciting signatures at the Santa Rosa Trader Joe's during the pendency of this action. Appellants appeal that preliminary injunction order. The primary issue on appeal is whether the state constitutional right to engage in expressive activity on private property, which was recognized by our Supreme Court in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (Pruneyard ), protects the challenged activity.

We hold that Trader Joe's is likely to succeed on the merits of its claim that the challenged activity is not constitutionally protected and affirm the preliminary injunction order.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 20, 1998, Trader Joe's filed a complaint seeking injunctive relief and damages for trespass against Matthew Temple (Temple), Progressive Campaigns, Inc., (Progressive) and others. The complaint alleges that Trader Joe's is in possession of and does business at a "free-standing modest retail store and parking lot" located in Santa Rosa (hereafter, the Santa Rosa Trader Joe's or the premises). It further alleges that, commencing on or about March 29, 1998, defendants entered these premises several times to solicit signatures from Trader Joe's patrons. Defendants allegedly engaged in these activities without Trader Joe's consent, blocked the ingress and egress to the store, and harassed, and threatened and intimidated patrons and employees of Trader Joe's. On the same day it filed its complaint, Trader Joe's obtained, ex parte, a temporary restraining order and an order directing defendants to show cause why they should not be enjoined during the pendency of the action from soliciting, petitioning or handbilling on Trader Joe's premises, obstructing or impeding ingress into or egress from Trader Joe's premises, or trespassing in any manner upon Trader Joe's premises.

Trader Joe's application for a preliminary injunction was based on the argument that its Santa Rosa store is a "modest specialty store" which is not subject to the Supreme Court's holding in Pruneyard that state constitutional speech and petitioning rights may be exercised at privately owned shopping centers. Trader Joe's submitted two declarations by its Santa Rosa store manager, Ron Anderson. According to these declarations, the Santa Rosa Trader Joe's is a "specialty retail store." It is an approximately 11,000 square foot, stand-alone structure that is not part of a shopping center and does not share property with any other retailer. The only entrance to the store is a set of sliding glass doors at the front corner of the building. The Santa Rosa store has a parking lot, which is for the exclusive use of Trader Joe's patrons and employees. The lot contains 68 parking spaces. There is another parking lot adjacent to Trader Joe's property that Trader Joe's does not own or rely on to accommodate its customers.

Anderson further stated that he personally observed defendant, Temple, enter store property to solicit signatures from store employees and patrons, that he witnessed Temple's aggressive behavior and that he saw Temple block the store entrance. Temple refused Anderson's requests that he refrain from his petitioning activity and leave the store premises and told Anderson he would continue to solicit signatures at the Santa Rosa Trader Joe's. Anderson also stated that he received four complaints from customers about Temple and another defendant, Paul Toussaint. ¹

Opposing the application for a preliminary injunction, defendants argued that Trader Joe's cannot exempt itself from the holding of Pruneyard by mischaracterizing its stores as "modest retail establishments." Indeed, defendants characterized the Santa Rosa Trader Joe's as a "behemoth" shopping center where individuals must be permitted to reasonably exercise their free speech/petition/initiative rights. To support their position, defendants submitted the declaration of Mark Cartwright an employee of defendant, Progressive Campaigns, Inc. (Progressive). Cartwright stated that Temple was working as an independent contractor for Progressive during the five-day period in April 1998 when Temple collected signatures for statewide initiatives at the Santa Rosa Trader Joe's. Cartwright opined that "[t]he fact that a successful petitioner such as Matthew Temple would go to the Santa Rosa Trader Joe's store for five days indicates to me that it per se is not a modest retail establishment but rather has a pedestrian traffic flow which categorizes it as a large retail store." Cartwright also stated that he tried to resolve the dispute that arose between Temple and Anderson but that Anderson refused to discuss the issue with him.

Defendants also submitted declarations from three individuals who stated they visited the Santa Rosa Trader Joe's during the period Temple was soliciting signatures there. These individuals, one of whom is a friend of Temple's family, did not see Temple behave aggressively or block patrons from entering or exiting the store. In addition, defendants submitted a declaration by Temple's mother who stated she often shops at the Santa Rosa Trader Joe's. According to Mrs. Temple, the store has over 100 shopping carts and over 50 hand baskets. She estimated that the store has 75 parking spaces in its own lot and 90 additional spaces available in the lot next door. In Mrs. Temple's opinion, Trader Joe's carries a wider range of products than convenience stores like 7-11, the store has "continuous foot traffic, and its customers tend to be persons who are interested in public issues and therefore interested in issues posed by initiative petitions." Mrs. Temple also stated that Trader Joe's advertises regularly on the radio and invites the general public to come into its stores.

Finally, defendants submitted a declaration by their counsel, who now represents appellants. Attached thereto is literature that was allegedly downloaded from Trader Joe's Internet web site. The literature indicates, among other things, that Trader Joe's has 113 stores across the country and that it distinguishes itself from other grocery stores as offering a large variety of unique items at low costs and as making shopping "fun."

The hearing on Trader Joe's motion for a preliminary injunction was held on June 4, 1998, before the Honorable Arnold D. Rosenfeld. At the conclusion of that hearing, Judge Rosenfeld adopted his tentative ruling and granted the preliminary injunction. The minute order indicates that the trial court found that Trader Joe's is not subject to the holding of Pruneyard, supra, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, because it is a "modest retail establishment" as opposed to a "large 'supermarket' type 'grocery store.' " Further, the court resolved the balancing of harms analysis in favor of granting the preliminary injunction, finding that Trader Joe's had sufficiently proven damage to its property rights resulting from defendants' conduct.

On August 3, 1998, Progressive and Temple (jointly appellants) appealed the order granting the preliminary injunction.

III. DISCUSSION

"To obtain a preliminary injunction, the plaintiff must establish the defendants should be restrained from the challenged activity pending trial. [Citations.] The plaintiff must show (1) a reasonable probability it will prevail on the merits and (2) that the harm to the plaintiff resulting from a refusal to grant the preliminary injunction outweighs the harm to the defendant from imposing the injunction. [Citation.] On appeal, a preliminary injunction will be overturned only on a showing of abuse of discretion. [Citation.]" (Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1625-1626, 52 Cal.Rptr.2d 429 (Bank of Stockton ).) ²

A. Is Trader Joe's Likely to Succeed on the Merits?

To determine if Trader Joe's is likely to prevail on the merits, we must consider whether Trader Joe's can prohibit appellants from engaging in expressive activity at the Santa Rosa Trader Joe's. There is no contention in this case that appellants have a federal constitutional right to engage in the challenged activity. Indeed, the Federal Constitution does not guarantee the right to engage in expressive activity at a privately owned shopping center when, as here, the speech is unrelated to any activity within the center itself and the citizen has adequate alternative avenues of communication, in the sense that he or she can engage in the activity elsewhere. (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 556, 92 S.Ct. 2219, 33 L.Ed.2d 131.) Thus, resolving the current dispute requires us to determine whether appellants' state constitutional free speech and petitioning rights may be exercised at the Santa Rosa Trader Joe's. The parties have not cited nor have we found California precedent which addresses this precise issue. Our guiding authority is the Supreme Court's decision in Pruneyard, supra, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341.

1. Pruneyard

In Pruneyard, a group of high school students attempted to...