By Glen C. Hansen
In Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, the Court of Appeal for the Fifth Appellate District affirmed a trial court’s order granting a preliminary injunction that enjoined defendants from soliciting charitable donations or engaging in other expressive activities on sidewalks adjacent to store entrances in plaintiff’s shopping center, because such store entrances and aprons are not a public forum.
Plaintiff Donahue Schriber Realty Group, Inc. (“Plaintiff”) controls the Fig Garden Village shopping center, an outdoor shopping center with approximately 60 retailers in Fresno, California. Plaintiff has a policy of prohibiting solicitation of donations on the shopping center property. However, Plaintiff allows other forms of expressive activity, such as gathering petition signatures, in a designated public forum area only.
On July 28, 2013, two solicitors for Defendant Nu Creation Outreach went on the shopping center property and solicited donations on sidewalk areas adjacent to the entrances of stores within the shopping center. The next day, six to eight solicitors for Nu Creation Outreach solicited donations adjacent to multiple retailers in the shopping center. The solicitors refused to leave when asked to do so, and the police would not arrest the solicitors without a court order. Plaintiff then filed a complaint against Nu Creation Outreach and one of its members (collectively, “Defendants”) for declaratory relief and trespass. At Plaintiff’s request, the trial court eventually issued a preliminary injunction that did not prohibit all solicitation at the shopping center, but restricted it to a designated public forum area. Defendants appealed. The Court of Appeal affirmed.
The appellate court held that the trial court did not abuse its discretion in finding that Plaintiff demonstrated a likelihood of prevailing on the merits. Plaintiff submitted evidence sufficient to satisfy its trespass cause of action because the solicitors’ activities on the shopping center property exceeded the scope of consent given for entry, because Plaintiff believed the solicitors’ activities were interfering with the flow of traffic around the entrances to stores in the shopping center, discouraging customers from returning to shop in the shopping center, and eroding the goodwill of both customers and tenants, and because the police declined to remove the solicitors.
Also, and most importantly in the case, the Court of Appeal rejected the Defendants’ argument that the portion of the shopping center where the solicitors were soliciting donations was a public forum. A public forum is where speech could be limited only by reasonable time, place, and manner restrictions, that are content neutral, narrowly tailored, and leave ample alternative means of communication of the information. As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; however, the right to exclude persons exercising First Amendment rights is not absolute. Here, the court relied on Ralphs Grocery Co v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083, 1092, 1104, which held that “within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished, are not public forums,” and “[o]n the private property of a shopping center, the public forum portion is limited to those areas that have been designed and furnished to permit and encourage the public to congregate and socialize at leisure.”
The Court of Appeal found that substantial evidence supported the trial court’s conclusion that the sidewalk areas where Defendants pursued their solicitation of donations are not public forums. Plaintiff submitted a declaration stating that the sidewalk and apron areas in the shopping center are not designed or furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation; they are designed only to facilitate customers’ entrance to and exit from the stores. Also, the shopping center had a policy of permitting expressive activities only in certain areas; no solicitation of donations or gathering of signatures on petitions was permitted on the sidewalk or apron areas directly adjacent to the individual stores.
The Court of Appeal further held that, in this kind of free speech rights versus private property rights cases, a showing that Plaintiff is likely to prevail on the merits “establishes that it will be irreparably harmed if the injunction is not granted.” The evidence presented to the trial court further demonstrated that the disruptive solicitation activity of Defendants’ solicitors harms the shopping center’s relationship with its tenants and customers and erodes customer goodwill.
Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.