Costco Companies, Inc. v. Gallant

117 Cal.Rptr.2d 344

96 Cal.App.4th 740

COSTCO COMPANIES, INC., Plaintiff and Appellant, v. Don GALLANT et al., Defendants and Respondents.

No. D035997.

Court of Appeal, Fourth District, Division 1.

February 27, 2002.

Rehearing Denied March 19, 2002.

Review Denied June 12, 2002.^*

Morrison & Foerster, David F. McDowell, Los Angeles, and Roya P. Cohen, for Plaintiff, Cross-defendant and Appellant.

Law Offices of Peter D. Lepiscopo, Peter D. Lepiscopo, San Diego; Gronemeier & Associates and Dale L. Gronemeier, South Pasadena, for Defendants, Cross-complainants and Appellants.

BENKE, Acting P.J.

At locations where it shares a parking lot with other retail businesses, the owner of a chain of retail warehouse stores permits expressive activity but only subject to regulations as to time, manner and place. In particular the storeowner prohibits all expressive activity on 34 days on which historically it has experienced a high volume of customer traffic. The owner also prevents any individual or organization from using its property for expressive activity on more than 5 days within any 30-day period (5/30 restrictions(s)). The storeowner prohibits all expressive activity at its so-called stand-alone facilities.

The owner's restrictions on use of its premises are valid. Accordingly, we reverse that portion of the trial court's judgment which prevents the owner from enforcing its high volume days and 5/30 restrictions at stores where it shares a parking lot with another retailer, and we affirm that portion of the trial court's judgment which permits the owner to prohibit all expressive activity at its standalone facilities.

SUMMARY

Plaintiff, cross-defendant and appellant Costco Companies, Inc. (Costco), owns and operates a chain of 84 so-called big box warehouse-style retail stores in California and a total of 268 warehouse stores throughout the world. In the San Diego area Costco operates 10 stores. Six of the San Diego area stores are stand-alone facilities where Costco does not share a parking lot with any other commercial establishment.

Defendants, cross-complainants and respondents Don Gallant, Cecilia Gallant and Charity Gallant (collectively the Gallants) are actively engaged in the business of gathering voter signatures for initiatives and referenda and in registering voters for upcoming elections. The Gallants are retained by a broker who pays them between 25 cents and $2 per petition signature or registered voter. The amount they receive varies from issue to issue. According to the expert who testified on behalf of the Gallants, Costco stores are very fertile grounds for collecting petition signatures and registering voters because they have only one entrance and exit which all patrons must use. More traditional regional shopping centers are not nearly as productive for signature gathering because typically they have multiple points of ingress and egress.

Because it believed the activities of signature gatherers such as the Gallants were interfering with the operation of its business, in 1998 Costco substantially modified the circumstances under which it would permit expressive activity at its stores. As noted at the outset, at stores where it shares a parking lot Costco prohibited expressive activities on 34 of its busiest days and imposed the 5/30 limitation. In addition Costco does not permit any individual or group to use its facilities on consecutive weekends and restricts expressive activities to designated areas in front of its stores. Costco only allows three participants to engage in expressive activity at any one time and requires that they identify themselves. Costco requires that individuals or groups who want to use their stores complete an application at least three days in advance of any expressive activity. As we also noted Costco prohibits all expressive activity at its stand-alone stores.

After Costco imposed its new regulations, the Gallants attempted to comply with them. However, at two stores the Gallants and Costco employees were unable to resolve differences as to the meaning and validity of Costco's regulations.

Costco filed a complaint against the Gallants in which it sought declaratory and injunctive relief. The Gallants filed a cross-complaint in which they sought a judgment invalidating Costco's regulations and damages for a battery they believed occurred when Costco employees attempted to enforce the regulations.

After a lengthy trial the court found that with the exception of the 34 days in which no expressive activity was permitted and the %o limitation, Costco's regulations were valid. With respect to Costco's prohibition on expressive activity on Costco's 34 busiest days, the trial court found that on any given day one to three petitioners would have only a minimal impact on Costco's business. The trial court found there was no basis for imposing the 5/30 limitation because "on any given day the typical Costco store will not have any expressive activity being conducted at its location." The trial court also found the 5/30 limitation provided Costco with too much discretion because Costco reserved the right to waive the restriction. Finally, the trial court found that a Costco employee did in fact batter one of the Gallants and awarded her $2,500 in damages.

Costco filed a timely appeal and the Gallants filed a timely cross-appeal.

DISCUSSION

I Robins v. Pruneyard Jurisprudence

At the heart of the parties' dispute is article I, section 2(a) of the California Constitution which provides: "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." In its groundbreaking decision in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 909-910, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), our Supreme Court held that, unlike the First Amendment of the United States Constitution, article I, section 2(a) of the California Constitution may in certain circumstances restrain private property owners as well as governmental agencies. The court found that in the case of a large regional shopping center, "the public interest in peaceful speech outweighs the desire of property owners for control over their property." (Id. at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341.) Quoting an earlier opinion, the court stated: ""`[T]he countervailing interest which [the owner] endeavors to vindicate emanates from the exclusive possession and enjoyment of private property. Because of the public character of the shopping center, however, the impairment of [the owner's] interest must be largely theoretical. [The owner] has fully opened his property to the public'"" (Id. at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.)

In recognizing the right of free expression extends in some instances to privately owned property, the court nonetheless expressly acknowledged private property owners, like governmental agencies, may regulate speech as to "time, place and manner." (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.) The court stated: "By no means do we imply that those who wish to disseminate ideas have free rein." (Ibid.)

Since Robins was decided, Courts of Appeal have had the opportunity to more fully define the limits private property owners may place on the expressive activity of visitors. In Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1572, 273 Cal.Rptr. 302, we found that "[i]n giving private property owners the right to establish `time, place and manner' rules, the court used the same formulation it had employed in describing the power government possesses with respect to public forums and the conduct of activities protected by the First Amendment." Thus although a citizen's "right to engage in expressive activity at shopping centers is found solely in the broader protection provided by California's Constitution, a shopping center's power to impose time, place, and manner restrictions on such activity is nonetheless measured by federal constitutional standards." (Ibid.) We noted that "`even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." [Citations.]'" (Id. at p. 1573, 273 Cal.Rptr. 302.)

With respect to the requirement that a regulation be narrowly tailored, we noted that courts must give some deference to the means chosen by a responsible decision maker. (Savage v. Trammell Crow Co., supra, 223, Cal.App.3d at p. 1574, 273 Cal.Rptr. 302.) Quoting from the United States Supreme Court opinion in Ward v. Rock Against Racism (1989) 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661, we stated: "`Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied "so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." [Citations.].... So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. "The validity of [time, place or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or...