Judge Christian R. Gullon, Case Number: 24PSCV02047, Date: 2024-12-05 Tentative Ruling

Judge: Christian R. Gullon, Case: 24PSCV02047, Date: 2024-12-05 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) DEFENDANTS’ MOTION TO SEAL DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION is GRANTED.

(2) PLAINTIFF ALEX SALZAR’S SECOND MOTION FOR PRELIMINARY INJUNCTION AGAINST ALL DEFENDANTS is DENIED because there is not a likelihood that Plaintiff will prevail on the merits as California’s constitutional rights apply to common areas in a large shopping center and not with an individual retail establishment within the shopping center (See Van v. Target, infra).

This is a freedom of speech case.[1] Plaintiff Alex Salazar alleges the following against Defendants MAJESTIC REALTY CO.; REDLANDS JOINT VENTURE, LLC; and MOUNTAIN GROVE PARTNERS, LLC: Plaintiff seeks to distribute flyers/leaflet about reproductive rights and responsibilities from the male perspective at the Citrus Plaza (the “Plaza”) or Mountain Grove (collectively, the “Centers”), which are shopping centers/mall.[2] Plaintiff seeks to explain that men have a legal right to decide whether to pay child support for a child born outside of marriage, a movement which he has coined men’s eMANcipation.[3] The Plaza, however, has declined to let Plaintiff leaflet.

On September 16, 2024, Plaintiff filed his verified first amended complaint (“FAC”) for:

On October 3, 2024 (after withdrawing the first motion), Plaintiff filed the instant motion for a preliminary injunction.

On October 24, 2024, Defendants filed a motion to seal their opposition to the motion, in addition to the opposition itself.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) The burden of proof is on the plaintiff as moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.) “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)

The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.)

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. § 529(a); Cal. Rules of Court, rule 3.1150(f); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920.)[4]

Plaintiff seeks an injunction enjoining Defendants from enforcing a total ban on free speech in the common areas of Citrus Plaza and Mountain Grove Plaza. (Motion p. 19:16-18; see also Motion p.3:18-22.).[5]

Article I, section 2, subdivision (a), of the California Constitution states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article I, section 3 states: “The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.”

In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), the California Supreme Court ruled that even though the First Amendment of the Constitution does not apply to privately owned spaces, the California Constitution does.[6]

Accordingly, “[a] shopping mall is a public forum in which persons may reasonably exercise their right of free speech guaranteed by ... the California Constitution.” (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 869-870 (Fashion Valley).)[7] With that, “[a] mall may not impose blanket bans on the time or place of free speech unless there is proof that blanket bans are the only way to prevent substantial disruption of normal business operations.” (Best Friends Animal Society v. Macerich Westside Pavilion Property (2011) 193 Cal.App.4th 168, 181 (Best Friends).) Instead, “[s]hopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech based upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall.” (Fashion Valley, supra, 42 Cal.4th at p. 870.)

Notwithstanding, Van v. Target Corp.[8] (2007) 155 Cal.App.4th 1375, the principal case relied upon by Defendants, clarified that not all private property, by its mere general invitation to the public for designated purposes, loses its private character. (Id. at p. 1377 [“The Pruneyard holding does not apply to the area immediately surrounding the entrance of an individual retail store that does not itself possess the characteristics of a public forum, even when that store is part of a larger shopping center.”].) In Van, the plaintiffs filed identical complaints against Target, Wal-Mart and Home Depot alleging, amongst other claims, violation of the right to free speech. (Id. at p. 1379.) The defendants filed a joint motion for summary judgment asserting that the stores “were not public for a within the meaning of Pruneyard.” (Ibid.) In granting the summary judgment, the trial court “evaluated the CHARACTER of the property IMMEDIATELY IN FRONT OF THE STORES to determine whether ‘the holding in Pruneyard appl[ies] to the ENTRANCES, APRONS and SIDE ENTRANCE PERIMTERS of retail establishments that may be part of larger shopping centers.’ On the basis of undisputed evidence that the apron areas did not contain common areas such as plazas or courtyards, coupled with evidence that many stores used that area to display items for sale, the trial court concluded ‘that the aprons and perimeters of these establishments have become, in many instances, an extension of the store itself.” (Van, supra, 155 Cal.App.4th at p. 1387, emphasis and capitalization added.) (The ‘apron’ is defined as “the area immediately in front of the store.” Id. at p. 1379.) The trial court also determined that “while respondents had opened their property to the shopping public, appellants ‘offered no evidence that the [respondents'] stores themselves are inviting the public to congregate, meet friends or be entertained.’ It reasoned that the restaurants or video arcades contained in some stores DID NOT IMBUE those stores with the attributes of a public forum. Finally, it noted that ‘Since the [respondents'] stores usually only have one or two entrances there is a greater risk than in Pruneyard that defendants will be identified with [appellants'] message or that shoppers will be unable to avoid [appellants] when entering or exiting the stores.’” (Id. at p. 1388, emphasis and capitalization added.) The appellate court affirmed the trial court’s ruling noting that the “stores' invitation to the public is to purchase merchandise and, respondents' interest in maintaining control over the area immediately in front of their stores outweighs society's interest in using those areas as public fora.” (Id. at p. 1390.) The court noted it was “[un]persuaded by appellants' central argument that the presence of respondents' stores in larger, Pruneyard-type shopping centers alters this balance no particular societal interest is promoted by using the stores for expressive activity.” (Ibid.)

Here, the Plaza, which is located within a 1200-acre area known as the doughnut hole. It occupies about 53 acers and offers 544,520 square-feet of retail space. Defendants describes the Plaza as “the premier regional power center in the heart of the Inland Empire” as it “serves a growing population of more than 678,872 residents living in a 10-mile radius. (FAC ¶19.) Plaintiff specifically seeks to leaflet five (5) to ten (10) feet from the entrances of a Target, a Harkins movie theater, and a 24-Hour Fitness gym. (Salazar Deposition, pp. 19-20 of 24 of PDF.)[9] As to their configuration, the Target, movie theatre, and gym are all accessible directly from adjacent parking lots without the need for patrons to walk past other stores. (Bombardier Decl., ¶23.)[10] Additionally, Targets, a movie theatre, and a gym are generally not public places that are used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Generally, in all three of those places (Target, theatre, and gym), individuals go to conduct their activities in silence for an allotted amount of time (i.e., run errands, watch a movie (in silence) with a set time, and exercise for a certain amount of time). The mere fact that one may in conducting those activities happen to converse with others does not transform those areas into a public forum. (See Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106, 121 [“[A] location will be considered a quasi-public forum only when it is the functional equivalent of a traditional public forum as a place where people CHOOSE to come and meet and TALK and spend time.” (emphasis and capitalization added.)[11]

Plaintiff, however, fails to address the Van case despite being raised by Defendants in response to Plaintiff’s first motion.

Additionally, Plaintiff’s FAC and motion focuses on Mountain Grove, which is a mixed-use development immediately adjacent to Citrus Plaza. In late 2019, Majestic added a 17-building, 281-unit apartment complex that includes a resort style pool, gym, clubhouse and dog park. (FAC ¶20.) In Opposition, however, Defendants maintain that the Marriot Hotel and Summit Apartments relied on by Plaintiff are not affiliated with the Centers. (Opp. p. 10, see also Bombardier Decl., ¶24.) The Reply also fails to address this point.

All in all, a synthesis of the cases provides that California’s constitutional rights apply to public or common areas in a large shopping center and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner.

Thus, as Plaintiff seeks to petition in the aprons of certain centers and not a common area, Plaintiff will likely not prevail on the merits.[12]

Assuming there was a likelihood of prevailing on the merits, the balancing of the harm would weigh in Plaintiff’s favor.

On the one hand, “[m]ost courts consider the infringement of a constitutional right enough and require no further showing of irreparable injury.” (Motion p. 16, quoting Free the Nipple-Fort Collins v. City of Fort Collins (10th Cir. 2019) 916 F.3d 792, 805, citing 11A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2948.1 [3d ed. & Nov. 2018 update.].)

On the other hand, Defendants’ harm is largely hypothetical and unsupported by compelling evidence. In fact, if as Defendants argue Plaintiff’s mode of activism—leafletting—is outdated such that it is less receptive to patrons, that but further shows patrons are more likely to ignore or otherwise be unaffected by Plaintiff’s activism. Furthermore, Defendants’ concerns with littering and maintaining a certain “guest experience” been rejected as harms by California and federal courts alike. (See e.g., Motion p. 13 citing to Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 489 [“Nevertheless, accepting the validity of Westfield's concerns, we find providing a “stress-free shopping atmosphere” for patrons is not a compelling interest compared to the free speech rights of other individuals at the mall.”]; see also Motion p. 13, quoting Schneider v. State (1939) 308 U.S. 147, 162 [“We are of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it.”].)[13]

Based on the foregoing—namely following the principles set forth in Van—the motion is DENIED.

[1] The FAC states that this is a PAGA action. (FAC ¶1.) It is unclear how this is a PAGA action, an action which is filed by an employee against an employer on behalf of the state for alleged violations of the California Labor Code.

[2] Based upon Plaintiff’s deposition, it appears he would like to leaflet at the Centers.

[3] The exact leaflet is attached to the declaration of Paul Bresenden, who is a marketing expert. The revised leaflet is replete with altered spelling, which according to Bresenden, is “commonly employed to avoid censorship algorithms used by social media sites to filter out offensive words or ideas.” (Bresenden Decl., ¶10.) For example, ‘financially’ is spelled as ‘finansially,’ ‘out of marriage’ is altered to ‘outside uv marriage,’ and ‘reproductive’ is altered to ‘reeproductive.

[4] Plaintiff asks that bond be waived as he is unemployed. (See Motion p. 18, citing Beaudreu v. Suprior Court (1975) 14 Cal.3d 448, 454, fn. 8 [“In Conover v. Hall, Supra, 11 Cal.3d at pp. 850—853, 114 Cal.Rptr. 642, 523 P.2d 682, we held that a court granting an injunction had the discretion to relieve the plaintiff upon the ground of indigency from the requirement of an injunction bond under section 529 of the Code of Civil Procedure despite the fact that the plaintiff did not proceed formally in forma pauperis and that the court did not conduct a formal inquiry into the plaintiff's assets where it could reasonably conclude from the facts before it that the plaintiff was poor and could not afford to post the bond.”].) The court would waive bond; also, there is no opposition as to this point by Defendants.

[5] Plaintiff characterizes this relief as a prohibitory preliminary injunction (Motion p. 3:21-22) whereas Defendants categorize the relief as a mandatory injunction. “An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.” (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035.) The substance of an injunction, not its form, determines whether it is mandatory or prohibitory. (Opp. citing to Davenport v Blue Cross of Cal. (1997) 52 CA4th 435, 447, 60 CR2d 641.) accordingly, an injunction is mandatory, even if it is framed in prohibitory language, when it requires the enjoined party to perform affirmative acts. (Id. at pp. 447-448.) In Davenport, the preliminary injunction that enjoined health care insurer from refusing coverage for insured's medical treatment pending arbitration was in effect a mandatory injunction because it required insurer to provide coverage. Plaintiff’s attempt at distinguishing the case on the grounds that it does not involve freedom of speech is inapposite namely as the court’s review of the seminal cases on freedom of speech cited by the parties do not state which type of injunction is at issue. Therefore, as Plaintiff is requiring Defendant to alter its rules on content-neutral speech, the court deems this a mandatory injunction.

[6] Pruneyard involved a privately-owned, 21–acre shopping center that contained walkways, plazas and buildings that housed 65 shops, 10 restaurants, and a movie theater. (Pruneyard, supra, 23 Cal.3d at p. 902.) The center attracted about 25,000 daily visitors daily who used the shopping center's numerous amenities. (Id. at pp. 902, 910-911) On a weekend, high school students set up a card table in the shopping center's central courtyard to discuss their concerns and gather signatures for a petition in support of their opposition to a United Nations resolution against Zionism. Defendant argues that Pruneyard involved “a less intrusive type of speech (solicitation of signatures from behind a courtyard table).” (Opp. p. 8:5-6.) The court is unpersuaded by this argument. Solicitation of signatures entails more active participation by the patrons (i.e., engaging with the activist and reading and signing papers) whereas leafletting would not require active participation by a patron. In fact, Plaintiff in his deposition states when he passes leaflets, “[t]he typical reaction is probably maybe a blank face. They take it, and they walk off.” (Basileo Decl., Ex. J [Salazar Deposition], p. 7 of 24 of PDF, emphasis added.) What is more, Defendant’s own characterization of Defendant’s activity is that it happens in an area removed from any central congregating areas and in areas that do not require other patrons to walk past these three stores to reach other stores. Furthermore, the Pruneyard court reached the conclusion it did partly focusing on how the students were soliciting signatures in an orderly manner. (Id. at pp. 910-911.) Here, while Defendants maintain that “tenants have often contacted [the] office to report and complain about the presence and activities of political activists in the Centers, and have repeatedly conveyed their expectation that my office attempt to remove these activists or attempt to have these activists removed by the Redlands Police Department” (Bombardier Decl., P11.) However, this declaration does not state that (i) customers/patrons have complained, (ii) does not state whether they have complained about Plaintiff’s activities specifically, and (iii) when these complaints were made. The latter is of import as Plaintiff testifies that he “only just beg[a]n” his activities and has leafletted about seven times for a total of approximately 12 hours. (Basileo Decl., Ex. J [Salazar Deposition], p. 9 of 24 of PDF, emphasis added.) Additionally, Plaintiff testifies that while some at the fitness have complained about his activities, “[n]o one ever expressed unhappiness.” (p. 7 of 24 of PDF.) Furthermore, while maintaining the confidentiality of the sealed material, Plaintiff is seeking to talk with a class of individuals who do not form the majority of those who visit the Centers. Therefore, as there is insufficient/no evidence that Plaintiff’s activities are causing a substantial disruption, a blanket ban is unconstitutional.

[8] Van was published on 9/11/2007 and Fashion Valley was published on 12/24/2007; Fashion Valley does not cite to Van.

[9] It is unclear why Plaintiff would maintain otherwise in reply. (Reply p. 4:6-8 [“Plaintiff did not request permission to leaflet at any specific area of the Centers. He asked to leaflet at the Centers generally.”].)

[10] Bombardier is the senior project manager at Majestic Management Co., a division of Majestic Realty Co. (Bombardier Decl., ¶1.)

[11] The majority opinion in Fashion Valley did not cite to Albertsons, but the dissent did mention the case.

[12] For this reason, whether Rule 34 is unconstitutional is a moot issue.

[13] The opposition does not address either of these two cases.