Opinion
D060246
01-03-2013
TARGET CORPORATION, Plaintiff and Respondent, v. CANVASS FOR A CAUSE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2011-00086978-
CU-OR-CTL)
APPEAL from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed.
Plaintiff and respondent Target Corporation (Target) brought a complaint for declaratory and injunctive relief and for trespass damages against defendant and appellant Canvass for a Cause (CFAC), seeking to restrict or prevent CFAC from pursuing its canvassing and soliciting activities outside of various Target store entrances, such as on sidewalks located in large or small shopping centers, or stand-alone Target stores.
The matter is before us on CFAC's appeal of the trial court's order denying CFAC's special motion to strike Target's complaint, under anti-SLAPP provisions. (Code Civ. Proc., § 425.16, subd. (i).) CFAC asserts that the entire action against it should be stricken, because it impermissibly attacks CFAC's protected free speech activities of going to places such as Target stores to engage in "face-to-face conversations with the voting public" about human rights issues, chiefly its views on marriage and equality.
All further statutory references are to the Code of Civil Procedure unless noted. The acronym SLAPP has been widely adopted to describe lawsuits affecting speech or petition rights (Strategic Lawsuit Against Public Participation). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
Another named defendant, Canvass for a Cause Institute, has been dismissed, but the action remains pending against CFAC.
Shortly before CFAC's anti-SLAPP motion was heard, the trial court granted in part and denied in part Target's motion for a preliminary injunction. In a comprehensive ruling, the court issued a preliminary injunction to require CFAC canvassers to stay 30 feet away from the entrances of Target stores and their immediate apron/sidewalk areas, and to canvass customers at only one entrance at any one time. They were also required not to harass, follow, stalk or block movements of Target employees, managers or customers. However, the court denied Target's request for additional injunctive relief that would have extended to a wider area of its owned or leased property, because Target had not demonstrated any blanket entitlement to such relief.
In its ruling on the CFAC motion to strike, the trial court agreed with CFAC that initially the conduct complained of "arose" from actions in furtherance of a right to free speech. (§425.16, subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).)However, the trial court denied the motion to strike on the second prong of the inquiry, concluding Target had produced sufficient admissible evidence to show its substantial probability of prevailing in the action, at least on its claims regarding certain stores that have only one or two doors for access and only limited perimeter areas, thus not meeting the requirements of a public forum. The court declined to construe the Target claims narrowly, as CFAC was requesting. No attorney fees were awarded.
On appeal, CFAC agrees the trial court correctly found the anti-SLAPP statutory scheme was applicable to its alleged conduct, but argues the court erred as a matter of law, in the second part of the analysis, by finding that Target had sufficiently shown a probability of prevailing. According to CFAC, de novo review of the record will only support a conclusion that its alleged conduct was entirely protected within the authority of Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908-910 (affd. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74).
Based on the pleadings and evidentiary submissions in the record, we conclude the trial court correctly denied the motion to strike. (§ 425.16, subd. (b)(1).) CFAC erroneously characterizes the previous ruling on the preliminary injunction as determining that Target's complaint inappropriately seeks only blanket relief that cannot be granted (e.g., claiming none of its stores should ever qualify as a public forum). Alternatively, CFAC argues no such injunctive relief was necessary, based on the past behavior of its canvassers. The trial court appropriately analyzed the respective showings on the special motion to strike, and treated the remaining disputes as requiring individualized analyses of different Target stores on the public forum issue. We affirm the order denying the motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint; Background on Preliminary Injunction Proceedings
In determining whether the anti-SLAPP statutory scheme properly applies to this set of allegations, we look to the pleadings and the respective showings on the motion. (Navellier, supra, 29 Cal.4th 82, 88-89.) In March 2011, Target filed its complaint for declaratory and injunctive relief, and for trespass damages, apparently seeking a statewide injunction for all of its hundreds of California stores. Target asserts that all or most of its stores are stand-alone buildings or are located in retail strip developments, and all have a limited number of entrances to the stores. Target has a general policy prohibiting all groups and individuals from using its store property for expressive activity, and this policy is largely complied with statewide. However, CFAC allegedly continues to violate the policy "outside at least eight different California Target stores, including multiple stores in San Diego County."
Target's complaint asserts a private property right to prohibit expression of views upon its property, since its major purpose is to sell products to its shoppers, rather than providing a gathering place. Target claims the activities of CFAC have caused customer complaints and a loss of customer good will. It immediately sought a temporary restraining order, which was denied, and the matter was set for hearing on its motion for a preliminary injunction. Target provided evidence about the physical features and locations of many of its stores, such as site maps, store layout plans, and declarations about CFAC-customer interactions and problems at the Poway and Encinitas stores.
In opposition, CFAC staff members denied engaging in any harassing conduct or speech activity very close to store entrances, particularly at the Poway and Mission Valley stores. One former volunteer had persisted in an interaction, but did not block the customer from leaving.
This record includes the trial court's lengthy, well-reasoned order denying in part Target's motion for a preliminary injunction, and granting it in part, to prevent CFAC's canvassing conduct or speech activity within 30 feet of store entrances, or at more than one entrance at a time, as well as prohibiting any harassing or stalking conduct. At Target's request, we have augmented the record with material consisting of the moving papers and declarations from those preliminary injunction proceedings, including the store site plans and copies of many injunctive orders that have been granted statewide over the past few years, regarding solicitation by other groups in similar factual circumstances.
B. CFAC's Motion to Strike
After the preliminary injunction ruling, CFAC filed its anti-SLAPP motion to strike the complaint, arguing that all its allegations attacked only protected speech. CFAC relied on the authority of Robins v. Pruneyard Shopping Center, supra, 23 Cal. 3d 899, 908-910. The California Supreme Court held that the California Constitution protects speech and petitioning rights, reasonably exercised, when conducted at the type of shopping center, even if privately owned, that serves as the modern day equivalent of a public forum for free expression. (Id. at p. 910.) In affirming the California Supreme Court's decision, the United States Supreme Court upheld its interpretation of California law, requiring private shopping center owners to permit the reasonable exercise of free speech rights by others, upon their shopping center property that is open to the public. (Pruneyard Shopping Center v. Robins, supra, 447 U.S. 74, 82-88.)
In its motion to strike, CFAC argued that under the above standards, all Target stores amount to places of public forum for the purposes of CFAC activists who seek "to engage in face-to-face conversations with the voting public in order to encourage supporters of gay marriage to become actively involved in the LGBT [Lesbian Gay Bisexual Transgender] movement, and to educate nonsupporters about the rights that are denied to same-sex couples in California."
CFAC provided its executive director's declaration, stating that in conducting their activities, CFAC canvassers did not stand within 30 feet of entrances, nor were they allowed to follow, intimidate, harass or stalk customers or employees, or block the movements of Target employees, management or customers. CFAC contended that Target could not show it would probably prevail in the action, because the existing preliminary injunction did not alter CFAC's normal practices, which already refrain from harassing customers. CFAC argued that at least two local Target stores were part of large retail shopping centers (Mission Valley and Poway), that should be considered to be public forum areas. As to other Target stores that were not part of such large shopping centers, CFAC argued Target could not place a content-related ban on speech, such as addressing strangers on its issues of interest, that were not store related.
C. Opposition and Ruling
In opposition, Target contended it had presented sufficient evidence that it would probably prevail on at least a part of its claims, as indicated by the granting in part of its preliminary injunction motion. It argued CFAC's alleged conduct should not be protected in its store entryway access areas that did not qualify as public forum areas (and that only a very few Target stores located at large shopping malls would so qualify). Instead, Target represented that most of its store locations were "modest and individual commercial and retail establishments," offering primarily shopping activity. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1384 (Van).)
Target provided a copy of its solicitation policy barring all solicitation or petitioning, regardless of the cause being represented. It also supplied a declaration from an asset protection manager at its Poway store, stating that CFAC activities disrupted business at the store and interfered with traffic at the store entrance and exit doors. He stated that during the past two or three months, an average of eight to 10 customers per day had complained to him about rude and aggressive behavior by CFAC solicitors, but when he tried to get CFAC solicitors to leave or to have police remove them, he was unsuccessful.
After hearing, the trial court issued an order denying the motion to strike the complaint. The court ruled that although CFAC met the first prong of the analysis, by showing that the complaint arises from protected speech activity, Target had met its responsive burden of showing that it would probably prevail with regard to the claims about at least some of its stores. The court stated that at least with regard to Target's stores that have only one or two doors for access, with limited perimeter areas, those stores "do not meet the requirements of a public forum. Though [CFAC] claims this equates to a showing that it cannot prevail on its blanket claims, the court is not inclined to review the claims so narrowly."
CFAC appeals the order. (§ 425.16, subd. (i).)
DISCUSSION
I
ANTI-SLAPP STATUTORY PROVISIONS; PRONG 1
Well-accepted authorities establish a two-step process for applying section 425.16, subdivision (b)(1): " 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Taus v. Loftus (2007) 40 Cal.4th 683, 712 (Taus); Navellier, supra, 29 Cal.4th 82, 88.)
In ruling on such a motion, the trial court does not weigh conflicting evidence to determine whether it is more probable than not that the plaintiff will prevail on the claim. (§ 425.16, subd. (b)(1).) Rather, "when a defendant makes the threshold showing that a cause of action that has been filed against him or her arises out of the defendant's speech-related conduct, the provision affords the defendant the opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is unable to demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim." (Taus, supra, 40 Cal.4th 683, 714.)
To assess the trial court's rulings on appeal, we review the record de novo, including the determinations made about the sufficiency of a litigant's showing on liability or defenses in its pleadings and affidavits. Those sufficiency rulings present legal questions and issues of law, decided de novo. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 186; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474.)
Section 425.16, subdivision (a), instructs the courts that in making determinations about the scope of the statute, a broad construction is required. As did the trial court, we accept that the allegations in this complaint "arise" from statements and conduct covered under subdivisions (e)(2), (e)(3) and/or (e)(4) of the anti-SLAPP law. We are required next to address whether Target has shown its probability of prevailing on any part of its claim, thus establishing its causes of action have some merit and are entitled to further adjudication. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis West Realty, LLC); Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.)
II
PLAINTIFF'S PROBABILITY OF PREVAILING; PRONG 2
A. Scope of Issues Presented by Complaint and Motion to Strike To defeat the anti-SLAPP motion, Target as the plaintiff " ' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Navellier, supra, 29 Cal.4th 82, 88-89; Taus, supra, 40 Cal.4th 683, 714.) This boils down to whether Target sufficiently showed that some of its stores do not have all the identified characteristics of a public forum, so that it may be entitled to some of its requested relief, under the California line of authority, Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pages 908 through 910.
We first seek to clarify that CFAC cannot properly rely upon the doctrine of law of the case, such as in its opening brief, where it argues, "the law of the case is that [its] activities are protected." CFAC apparently bases this claim on Target's decision not to appeal the preliminary injunction ruling, which denied some of Target's requested relief. (See San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442 (San Francisco Newspaper)[preliminary injunction should not issue unless it is reasonably probable that the moving party will prevail on the merits].) Impliedly, the trial court determined that Target must be prepared to allow some level of CFAC's canvassing activity at some locations, following trial. Also, Target did not cross-appeal the trial court ruling that the first prong of the anti-SLAPP analysis was met in this case. However, neither of those particular circumstances operates to resolve this appeal. Under the proper definition of law of the case, the binding effect of a previous ruling is created by a prior appeal, which has not occurred here:
"The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (9 Witkin, Cal Procedure (5th ed. 2008) Appeal, § 459, p. 515, italics added; see Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832, 841-842.)
We may properly assume, as did the trial court, that the claims in the complaint are legally sufficient at least in part, and they supported some limited degree of preliminary injunctive relief (which was not directly challenged here). (Navellier, supra, 29 Cal.4th 82, 89; San Francisco Newspaper, supra, 170 Cal.App.3d 438, 442.) However, we are unable to resolve the remaining legal issues presented simply by accepting the representations by CFAC in its briefs that its personnel "have not engaged in nor threatened to engage in any unprotected activity, and therefore there is no controversy under which declaratory or injunctive relief can be awarded." Similarly, they say they "are not guilty of trespass," and "the preliminary injunction issued by the Court does nothing to alter [their] practices." CFAC cannot effectively moot the issues pled in the complaint and addressed on appeal, simply on the basis of its assertions that the evidence will show all its current and future activities, mainly at the Mission Valley and Poway stores, are well within the scope of its interpretation of recognized free speech protections.
Instead, as enunciated in Van, supra, 155 Cal.App.4th 1375, 1383-1384, the proper inquiry about these circumstances, under the Pruneyard balancing test, is "whether private property serves as the functional equivalent of a public forum. [Citations.] Courts consider several factors in making that determination: 'Whether private property is to be considered quasi-public property subject to the exercise of constitutional rights of free speech and assembly depends in part on the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property's occupants.' [Citation.]" (Ibid.)No single factor is determinative. (See Albertson's, Inc. v. Young (2003) 107 Cal.App.4th 106, 120 (Albertson's).) Each case should be considered in light of all the surrounding circumstances. (Ibid.)
Target relies on numerous injunctive orders that it has been able to obtain statewide over the past few years on similar facts, claiming this supports its probability of prevailing. However, each case should be considered on its own circumstances.
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In Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850 (Fashion Valley), a further component of the required constitutional analysis is explained: "The level of scrutiny with which we review a restriction of free speech activity depends upon whether it is a content-neutral regulation of the time, place, or manner of speech or restricts speech based upon its content. A content-neutral regulation of the time, place, or manner of speech is subjected to intermediate scrutiny to determine if it is '(i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication. [Citation.]' [Citation.] A content-based restriction is subjected to strict scrutiny." (Id. at p. 865.)
B. Analysis: Motion to Strike
CFAC contends Target cannot meet anti-SLAPP standards by bringing forth sufficient evidence to establish a prima facie case on its claim, or at least on any part of its claims. (Taus, supra, 40 Cal.4th 683, 714; Oasis West Realty, LLC, supra, 51 Cal.4th 811, 820.) CFAC mainly argues Target's policy restricting its canvassing remains impermissibly content related, thus invoking a strict scrutiny rule. (Fashion Valley, supra, 42 Cal.4th 850, 865.) CFAC suggests that if Target's no solicitation policy would allow other private conversations to take place between previously unacquainted individuals on the outside sidewalk, apron or walkway areas (e.g., about store-related concerns like Target bargains), then the policy is content based and should not be applied to restrict CFAC generated conversations about human rights there.
In reply, Target claims that its no solicitation policy is uniform, regardless of content, and it should be enforced at the majority of its hundreds of stores that qualify as "modest and individual commercial and retail establishments," and which lack the essential characteristics of a public forum, thus existing solely for shopping purposes. (Van, supra, 155 Cal.App.4th 1375, 1383-1384.) Target admits that there are some exceptions, such as the Mission Valley store, that may fall within the definition of a public forum or "Pruneyard-style shopping centers."
We think each side has failed to focus adequately on applying existing criteria to the widely varying sets of store circumstances described in Target's complaint. "The less that an owner has opened up the property for use by the general public, the less that the owner's rights are circumscribed by the statutory and constitutional rights of those who use it. [Citations.]" (Albertson's, supra, 107 Cal.App.4th 106, 118-119.) But here, in deciding if Target's "private property serves as the functional equivalent of a public forum" (Van, supra, 155 Cal.App.4th 1375, 1383-1384), we are confronted with Target's very broadly pled complaint that seeks a statewide injunction, while at the same time, making individualized allegations about "multiple stores in San Diego County," out of "at least eight different California stores" at which CFAC has pursued its mission of soliciting donations or signatures, raising the issue of how broad the CFAC activity has been. The complaint also generically claims that "Target owns or leases the area in front of each of its stores in California and has the right to prohibit those who wish to express their views on said property," and to prevent their trespass while doing so, merely because Target's primary purpose is to sell goods.
Clearly, the trial court took the correct approach in the preliminary injunction proceedings by restricting the scope of the injunctive relief to be granted, by preserving a 30-foot opportunity zone for customers to travel across the immediate sidewalk and apron areas to access the stores, without being approached by CFAC personnel, and by restricting harassing or stalking conduct. That injunctive relief remains in place and was not appealed. It is immaterial for CFAC now to claim such relief is unnecessary in light of how it currently conducts its canvassing.
Likewise, in the anti-SLAPP proceedings, the trial court took a fact-specific approach and expressly ruled that Target had provided adequate evidence to show that at least as to its stores with only one or two doors for access, and with limited perimeter areas, those particular stores do not as a matter of law constitute public forum areas, in this context of pretrial motion proceedings. It makes no sense for CFAC to claim, either at the trial level or this appellate level, that only the blanket, statewide claims apparently also pursued by Target actually remain at issue in the anti-SLAPP analysis. Rather, it is significant that Target was able to prevail in part on its motion for injunctive relief, based on its factual showing. In this related anti-SLAPP context, it was enough for Target to make a showing that some portions of its claim have probable merit, by addressing with evidence (1) the nature, purpose and primary use of the property; (2) the extent and nature of the public invitation to use the property; and (3) the relationship between the ideas sought to be presented and the function of the subject property. (Van, supra, 155 Cal.App.4th 1375, 1388-1389.)
Accordingly, despite the overly broad language in the complaint and in the appellate briefs, in this procedural context, we need not now analyze all the factors to be considered in determining whether each and every Target store entrance (or with one or two exceptions?) qualifies under Pruneyard rules as a public forum. (Robins v. Pruneyard Shopping Center, supra, 23 Cal. 3d at pp. 980-910.) Rather, the trial court correctly found that in opposing this particular motion, Target sufficiently showed that some of its stores do not have all the identified characteristics of a public forum, and demonstrated that it is potentially entitled to some of its requested relief, ultimately on a permanent injunction basis. Using the appropriate anti-SLAPP analysis, the trial court correctly analyzed the record and denied the motion.
DISPOSITION
The order is affirmed. Costs are awarded to Respondent.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
McDONALD, J.