Westside Sane/freeze v. Ernest W. Hahn, Inc.

• Decision Date: 04 October 1990
• Docket Number: No. B,B
• Citation: 274 Cal.Rptr. 51,224 Cal.App.3d 546
• Court: California Court of Appeals Court of Appeals
• Parties: WESTSIDE SANE/FREEZE et al., Plaintiffs and Respondents, v. ERNEST W. HAHN, INC. et al., Defendants and Appellants. 047075.

Page 51

274 Cal.Rptr. 51

224 Cal.App.3d 546

WESTSIDE SANE/FREEZE et al., Plaintiffs and Respondents, v. ERNEST W. HAHN, INC. et al., Defendants and Appellants.

No. B 047075.

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

Oct. 4, 1990.

Pepper, Hamilton & Scheetz, Thomas J. Leanse and Suzanne Ilene Schiller, for defendants and appellants.

Robin S. Toma, Carol A. Sobel, Mark D. Rosenbaum and Paul L. Hoffman, Los Angeles, for plaintiffs and respondents.

FUKUTO, Associate Justice.

This appeal from an order granting a preliminary injunction arises from appellants' tenacious, erroneous view that the California constitutional rights of free speech and petition at shopping centers, recognized in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affd. sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, are limited to activity connected with enrollment of signatures on petitions. We affirm the superior court's decision that Pruneyard is not thus limited, and also reject appellants' claim that the injunction restraining them from barring leafletting and expression unconnected with signature-gathering accomplishes an unconstitutional taking of their property. Resolving further issues as to the scope of the injunction, we find the trial court did not abuse its discretion in applying it to appellants' numerous California shopping centers, or in preliminarily enjoining collection of a cleaning deposit in excess of $50. However, we do direct that the injunction's description of the activity to which it applies be modified, to avoid vagueness and potential overbreadth.

FACTS

This case originated with appellants' refusal to permit plaintiffs to engage in certain "grassroots" political activity at the Fox Hills Mall shopping center ("Mall") in Culver City. Plaintiff Westside Sane/Freeze ("Sane") is an unincorporated association dedicated to "peace and nuclear sanity"; plaintiffs Andrew Tonkovich and Bernie Eisenberg are its director and steering committee member. Appellants Ernest W. Hahn, Inc. ("Hahn Inc."), Hahn Property Management Corporation ("Hahn Management"), and H,B-H Associates are related corporations and a partnership which own and operate the Mall. Appellant Jo Anne Sudjian Brosi is its general manager.

The various declarations submitted on the motion for preliminary injunction established as follows. The Mall is a tri-level shopping center covering 1,300,000 square feet, of which 907,921 are leasable. It houses approximately 136 tenants, including three major department stores. In November 1988, Tonkovich desired to have Eisenberg and himself distribute literature from a table in the Mall's common area and speak to passing patrons. To this end, he inquired of the Mall's business office, which sent him an "Application for Access to Center for Political Petitioning and Related Activities," together with a six-page statement of "Policy and Guidelines" ("the Policy"), a one-page "Policy Regarding Voter Registration," and five pages of "Rules for Political Petitioning and Related Activities," marginally dated "10/88" ("the Rules").

The Policy stated that, with the exception of Mall-sponsored activities or those protected by the National Labor Relations Act, "if proposed activities are not within the scope of the definitions of political petitioning, as set forth in the Rules, ... then they are prohibited in the common area." ¹ The accompanying Rules provided: "The following are intended as reasonable time, place and manner rules for political petitioning and related activities. 'Political petitioning' is the collection of signatures on petitions directed to a governmental entity or official. 'Related activities' are limited to conversations relating to the subject matter of the petitions, distribution of written materials relating to the subject matter of the petitions and the display of signs relating to the subject matter of the petitions."

On November 23, 1988, Tonkovich completed and mailed to the Mall Sane's Application for Access. In a space for "Subject Matter of Petition," which requested inclusion of a copy of the petition and associated materials to be distributed, ² Tonkovich entered, "We will not collect signatures for a petition. We will distribute literature on the issue of peace and disarmament, including brochures and leaflets on events and membership. We will talk with interested mall patrons, making ourselves available for questions and further information." Six days later, Tonkovich received a note from appellant Brosi's predecessor, stating the application had been rejected because "The request does not comply with the rules for Political Petitioning since signatures are not being collected for a petition and voters are not being registered."

In early January 1989, Tonkovich telephoned the Mall several times to ascertain if its policy had or could be changed. He was told by an assistant that distribution of flyers would not be permitted. This renewed refusal led to the present litigation. ³

In addition to appellants' denial of access for non-petition-related speech and leafletting, plaintiffs challenged a number of other features of appellants' Rules and Policies, concerning the timing, location, and preconditions for center appearances, including a prohibition against soliciting funds. However, the motion for preliminary injunction sought to restrain pendente lite only the petition limitation and the Rules' requirement that an applicant proposing to distribute literature pay a $75 cleaning deposit, to be refunded about two weeks after the leafletting.

Concerning this deposit, appellant Brosi declared that it takes at least 45 minutes to walk through the entire interior and perimeter of the Mall structure, and that the Mall's average labor expense for maintenance and security personnel was $10 to $13 an hour. In response, plaintiffs presented documents obtained through discovery, indicating that these employees' pay rates (not necessarily including all taxes and benefits) were less than half that.

Plaintiffs also adduced evidence that the Rules and Policies operative at the Mall were in effect at a number of other California shopping centers managed by one or more of the appellant corporations or their related entities. In addition to the incidents mentioned above (fn. 3, ante ), a supervisory employee of appellant Hahn Management testified that the Rules and Policies were in effect at all of its managed centers within her "region," except for the Plaza Pasadena (which is involved in other, similar litigation). Further, a "Hahn Memorandum," addressed to "All California Center Managers," announced (with copy attached) that the Rules and Policies, "dated 10/88 ... have been adopted for use at your center."

The trial court ruled that the constitutional rights of speech and petition recognized in Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, were not limited to situations involving "the act of obtaining someone's signature...." The court rejected appellants' objection to the injunction's extending to other shopping centers they manage and perhaps own, ⁴ observing that it would be "absurd" to allow or require case-by-case litigation concerning the underlying principle. Concerning the cleaning deposit, the court first resolved to restrict it to an amount shown to be reasonably related to the costs expected to be incurred because of leafletting. However, when appellants' counsel suggested that this would be "inconsistent" with a ruling by Division One of this court upholding a $50 deposit in H-CHH Associates v. Citizens for Representative Government (1987) 193 Cal.App.3d 1193, 1212, 238 Cal.Rptr. 841, the court determined to limit the deposit to that sum, based on the "showing that 75 is too high and ... consistent with appellate authority...." ⁵

Following an exchange of proposals and objections, the trial court issued its preliminary injunction, barring appellants from enforcing a deposit of more than $50, and restraining them from "[b]arring plaintiffs ... and any other individuals or groups, from engaging in peaceful and orderly leafletting or speaking of non-commercial ideas, or any other form of protected political expression, within the Fox Hills Mall or any other shopping center in California which is owned and/or managed by any or all of the defendants, and by those entities which are wholly or under majority control of any or all defendants, their subsidiaries or affiliates, except within those shopping centers subject to court orders whose terms conflict with the terms of this order...." (Fn. omitted.) ⁶

DISCUSSION

I. CONSTITUTIONAL ISSUES.

A. The Scope of Pruneyard Rights.

Appellants' primary objection to the preliminary injunction repeats their position that triggered this litigation: that the California constitutional rights our Supreme Court recognized in Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 ("Pruneyard "), affd. sub nom. Pruneyard Shopping Center v. Robins, supra, 447 U.S. 74, 100 S.Ct. 2035 ("Pruneyard II "), embrace only the solicitation of petition signatories at shopping centers, and conversely that the relevant constitutional provisions do not protect and restrain from prohibition there other speech and leafletting. A review of Pruneyard, its antecedents, and its progeny demonstrates that this contention is devoid of merit.

Pruneyard involved a shopping center's refusal to permit high school students to solicit signatures for a petition, protesting a United Nations resolution about "Zionism," which was to be sent to the White House. In resolving the students' claim of constitutional entitlement to access, the California Supreme Court confronted the United States Supreme Court's holding, in Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (...