Trader Joe's Co. v. Progressive Campaigns, Inc.

Opinion

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.

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, 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

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-Eleven, 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. Rosenfield. At the conclusion of that hearing, Judge Rosenfield 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 , 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.

HI. 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

907.) That evidence led the court to conclude that “[t]he largest segment of the county’s population is likely to spend the most significant amount of its time in suburban areas where its needs and wants are satisfied; and shopping centers provide the location, goods, and services to satisfy those needs and wants.” (Ibid.)

Evidence of the role of the shopping center as a forum for public congregation was not limited to the particular shopping center at issue in Prune-yard. (Pruneyard, supra, 23 Cal.3d at p. 910 & fn. 5.) The court also relied on nationwide evidence illustrating that, among other things, there was a growing trend of successful shopping centers throughout the country, many of which were taking on the characteristics of “miniature downtowns” by including not just department stores but hotels, apartment houses, office buildings theaters and churches. (Ibid.)

Balancing the interest of the shopping center owner, in maintaining exclusive control over property he has opened to the public,' against the societal interest, in utilizing the shopping mall as a public forum for expressive activity, the Pruneyard court concluded that the societal interest should prevail: “The California Constitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights.” (Pruneyard, supra, 23 Cal.3d at p. 910.) However, the court emphasized that “those who wish to disseminate ideas” do not “have free rein.” (Ibid.) The Pruneyard court acknowledged that property owners who were required to allow free speech and petitioning activity on their property could adopt reasonable “ ‘time, place, and manner rules.’ ” (Ibid.) Further, the court noted that “we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.” (Ibid.) What was under consideration was a shopping center where 25,000 people per day accepted the property owner’s invitation to congregate and to take advantage of numerous amenities. The court concluded that a “ ‘handful of additional orderly persons’ exercising their speech and petitioning rights pursuant to reasonable regulations adopted by the shopping center owner would not ‘markedly dilute defendant’s property rights.’ ” (Id. at p. 911.)

2. Trader Joe’s

In the present case, appellants argue that they may engage in free speech and petitioning activity at the Santa Rosa Trader Joe’s pursuant to Pruneyard because the Santa Rosa store is not an individual residence or a “modest retail establishment.” Advocating an equally narrow but opposite extreme interpretation of Pruneyard, Trader Joe’s takes the position that Pruneyard does not apply because the Santa Rosa Trader Joe’s is not a “shopping center.” In our view, both parties oversimplify the relevant inquiry.

Pruneyard establishes that there is a state constitutional right to exercise free speech and petitioning activity on private property. However, the Prune-yard court did not purport to articulate the precise scope of that right. It did not hold that the free speech and petitioning activity can be exercised only at large shopping centers. Nor did it hold that such activities can be exercised on any property except for individual residences and modest retail establishments. Rather, in resolving the specific dispute before it, the court developed a balancing test which can be applied to other situations. Pruneyard instructs us to balance the competing interests of the property owner and of the society with respect to the particular property or type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity.

Thus, we begin our analysis by examining the interests of the property owner. Trader Joe’s does have constitutionally protected property interests. However, like the owners of the Pruneyard Shopping Center, Trader Joe’s has voluntarily opened its property to the public. But Trader Joe’s invitation to the public to visit its Santa Rosa store is more limited than the invitation made by a shopping center like Pruneyard. Trader Joe’s invites people to come and shop for food and food-related items. It does not invite them to meet friends, to eat, to rest or to be entertained. Indeed, citizens are not invited to “congregate” at the Santa Rosa Trader Joe’s. Thus, in our view, Trader Joe’s interest in maintaining exclusive control over its private property is stronger than the interest of a shopping mall owner.

Similarly, the public’s interest in using the Santa Rosa Trader Joe’s as a forum for free speech and petitioning activity is not as strong as its interest in engaging in such activities at a large shopping center like Pruneyard. In contrast to Pruneyard, the Santa Rosa Trader Joe’s is a single structure, single-use store. It contains no plazas, walkways or central courtyard where patrons may congregate and spend time together. The store sells food but has no restaurant or any place for patrons to sit and eat. Nor does the Santa Rosa Trader Joe’s have a cinema or any other form of entertainment. There is evidence suggesting Trader Joe’s may attract large numbers of people. But those people come for a single purpose — to buy goods. Further, because the store is a stand-alone structure, there can be no contention that its relationship to other establishments transforms it into a public forum. In short, the Santa Rosa Trader Joe’s is not a public meeting place and society has no special interest in using it as such.

The Pruneyard court’s conclusion that the societal interest in using shopping centers as forums for expressive activity outweighed the property interests of the shopping center owner was supported by tangible evidence

That case involved the officer of a labor union who suffered misdemeanor convictions for distributing handbills on the privately owned sidewalk in front of the Calico Market. (Id. at pp. 873-874.) The handbills urged individuals to not patronize the Calico Market because it advertised in newspapers that were involved in labor union disputes. Our Supreme Court overturned the union officer’s convictions, holding that his activities were protected speech under the federal Constitution. (Id. at pp. 874-878.) The Lane court applied the “established” rule that “peaceful picketing or hand-billing ‘carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment.’ [Citation.]” (Id. at p. 874.) The court found this rule applied to the privately owned sidewalk which was used as the sole means of ingress and egress to and from the Calico store because (1) the sidewalk was opened to the public and (2) holding that the privately owned sidewalk was “ ‘off limits’ ” for the exercise of First Amendment rights would permit the store owner to immunize itself from “on-the-spot public criticism.” (Id. at p. 876.)

Lane is inapposite. In contrast to the present case, the expressive activity at issue in Lane was picketing by a labor union. The defendant’s store was involved in that labor dispute. The court’s reasoning was substantially influenced by this fact and the need to prevent the defendant from insulating himself from public comment for his role in the labor dispute. Indeed, after Pruneyard was decided, our Supreme Court subsequently distinguished Lane from other cases involving petitioning activity at shopping centers because the nature of the activity at issue in Lane, picketing by a labor union, justified the impingement on private property rights. (See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317 , 326-327 [ 158 Cal.Rptr. 370 , 599 P.2d 676 ].)

Further, the Lane court based its holding on federal Supreme Court precedent which was subsequently overruled. (See Food Employess v. Logan Plaza (1968) 391 U.S. 308 [ 88 S.Ct. 1601 , 20 L.Ed.2d 603 ], overruled by Lloyd Corp. v. Tanner, supra, 407 U.S. 551 , as recognized in Hudgens v. NLRB (1976) 424 U.S. 507 , 517-518 [ 96 S.Ct. 1029 , 1035-1036, 47 L.Ed.2d 196 ].) Appellants contend that Lane is, nevertheless, good law because that case was expressly approved and thereby revitalized by the Pruneyard court. The Pruneyard court did cite Lane as an example of a case in which speech rights overrode conflicting property interests. (Pruneyard, supra, 23 Cal.3d at pp. 908-909.) The court noted that, even though Lane relied on federal law which subsequently took a divergent course, it was still useful as precedent.

therefore, subject to Pruneyard. But we have already rejected this conclusion. The dicta from Bank of Stockton upon which appellants rely misinterprets Pruneyard’s reference to Lane. As we have already explained, the Pruneyard court’s brief discussion of Lane was not equivalent to a holding that the state constitution guarantees that speech and petitioning activity can be exercised at large grocery stores. Further, and equally important, the Pruneyard court’s acknowledgment that it was not called upon to consider the property or privacy rights of a proprietor of a modest retail establishment does not warrant automatically extending the holding of that case to any property that cannot be characterized as a modest retail establishment. Indeed, the only rights that the Pruneyard court expressly considered were the rights of the parties before it. In doing so, the court developed the balancing test we have articulated and applied to the situation presented by this case.

Appellants repeatedly contend that size is the determinative issue in this case and that the very fact that the Santa Rosa Trader Joe’s is sufficiently large to attract solicitors establishes that it is a public forum under Prune-yard. This argument eviscerates private property rights, something the Pruneyard court was careful not to do. Of course, size is a relevant factor, but only one factor. Here, although appellants can easily identify stores that are smaller, the size factor cuts both ways. The Santa Rosa Trader Joe’s is significantly smaller in size than the Pruneyard Shopping Center. (Pruneyard, supra, 23 Cal.3d at p. 902.) It is also smaller in size than the grocery store in Lane and the bank in Bank of Stockton. (Lane, supra, 71 Cal.2d at p. 873; Bank of Stockton, supra, 44 Cal.App.4th at p. 1630.) In any event, Pruneyard does not make “size” the determinative factor. The size of the Santa Rosa Trader Joe’s, when weighed with the other factors discussed above, supports our conclusions that the Santa Rosa Trader Joe’s is not uniquely suited to be a public forum and that Trader Joe’s private property interests are not outweighed by appellants’ interests in this case.

This record does not establish that appellants have a state constitutional right to engage in the challenged activity. Thus, the trial court did not abuse its discretion by concluding that Trader Joe’s is likely to succeed on the merits of its claims that it has the right to exclude appellants and to obtain injunctive relief as a remedy for continuing trespass.

B. Will Trader Joe’s Suffer Greater Harm Absent Issuance of the Injunction?

As noted at outset of our discussion, the second requirement imposed on a plaintiff seeking a preliminary injunction is to show that the plaintiff will suffer greater harm if the preliminary injunction is denied than the defendant will suffer if the preliminary injunction is granted. (Bank of Stockton, supra,

44 Cal.App.4th at p. 1631.) According to the Bank of Stoctkon court, in this context, this second inquiry merges into the first since both parties assert constitutional rights and the potential harm to those rights depends directly on who succeeds on the merits. (Ibid.)

In any event, Trader Joe’s produced sufficient evidence of injury resulting from appellants’ activities to support the trial court’s discretionary ruling in its favor. Store manager Anderson’s declaration contains evidence that appellants disrupted store business and that customers complained. We are not persuaded by appellants mischaracterization of this evidence as a “heckler’s veto.” That term refers to hostile reaction to a disfavored viewpoint. (See San Diego Unified Port District v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964 , 970 [ 74 Cal.Rptr.2d 364 ].) There is no evidence in this record that Trader Joe’s or any of its customers object to or are even aware of the substantive content of appellants’ activities. Indeed this record does not even disclose what substantive views appellants hold.

The record supports the trial court’s conclusions that Trader Joe’s will likely succeed on the merits of its claims against appellants and that the balance of harms weighs in Trader Joe’s favor. There was no abuse of discretion.

The order granting the preliminary injunction is affirmed.

Kline, P. J., and Lambden, J., concurred.