Golden Gateway v. Golden Gateway Tenants Ass'n

111 Cal.Rptr.2d 336

26 Cal.4th 1013

29 P.3d 797

GOLDEN GATEWAY CENTER, Plaintiff, Cross-defendant and Appellant, v. GOLDEN GATEWAY TENANTS ASSOCIATION, Defendant, Cross-complainant and Respondent.

No. S081900.

Supreme Court of California.

August 30, 2001.

Bartko, Zankel, Tarrant & Miller, Glenn P. Zwang and Howard L. Pearlman, San Francisco, for Plaintiff, Cross-defendant and Appellant.

James S. Burling, Sacramento, and Harold E. Johnson, for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

Edward J. Sack; Law Offices of Jo Anne M. Bernhard and Jo Anne M. Bernhard, Sacramento, for California Business Properties Association and International Council of Shopping Centers as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

Pahl & Gosselin, Stephen D. Pahl and Karen M. Kubala, San Jose, for California Apartment Association as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

De Vries & Gold, Law Offices of Robert De Vries, Carolyn Gold and Robert De Vries, San Francisco, for Defendant, Cross-complainant and Respondent.

Jonathan P. Hiatt; Altshuler, Berzon, Nussbaum, Rubin & Demain and Scott A. Kronland, San Francisco, for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.

Alan L. Schlosser, San Francisco; Morris D. Lipson; Chapman, Popik & White and Susan M. Popik, San Francisco, for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.

Michael Somers, Gerald J. Van Gemert and James Arthur Judge, Tustin, for Association of Alternative Postal Systems, Inc., Los Angeles Newspaper Group, Advertising Consultants, Inc., CIPS Marketing Group, Inc., Turtle Ridge Media Group, Inc., and National Directory Company, Inc., as Amici Curiae on behalf of Defendant, Cross-complainant and Respondent.

BROWN, J.

In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), affd. sub nom. PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.) Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California's free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under article I, section 2, subdivision (a) of the California Constitution.¹ We conclude it does not.

Background

Golden Gateway Center (Golden Gateway), a limited partnership, owns a retail and residential apartment complex (Complex) in downtown San Francisco. The Complex consists of four high-rise buildings and a group of townhouses and contains 1,254 residential units. Although the Complex contains a number of retail establishments at the ground level, these retail establishments are separate from the residential units and do not have access to the residential portions of the Complex.

In the residential portion of the Complex, Golden Gateway emphasizes privacy and security. Consistent with this emphasis, Golden Gateway provides doormen during the daytime and 24 hour roving security patrols, and limits access to residential tenants and their invitees. Golden Gateway also promulgates building standards incorporated by reference in every residential lease agreement. At all relevant times, these standards banned all solicitation in the building. As part of their lease agreements, all residential tenants agree to abide by these standards, and Golden Gateway retains the right to "make amendments to the Building Standards and adopt further Building Standards as in Owner's opinion are reasonable or desirable for the proper and orderly care, use and operation of the Apartment and Building and its grounds. . . ."

In 1982, a group of residential tenants in the Complex formed a tenants association called the Golden Gateway Tenants Association (Tenants Association). Since its inception, the Tenants Association has periodically distributed a newsletter on or under the apartment doors of all residential tenants. For approximately 11 years, building management did not object to the distribution of these newsletters.

In 1993, however, the manager of the Complex asked the Tenants Association to stop distributing newsletters on or under apartment doors. In support, the manager cited the prohibition against "soliciting within the building" found in the building standards in effect at that time. The Tenants Association responded with several letters from attorneys asserting its constitutional right to free speech and threatening legal action. Hoping to avoid litigation, the manager told the Tenants Association that "Golden Gateway Center management will not oppose the distribution of newsletters under apartment doorways by members of the Golden Gateway Tenants' Association provided it is done in a reasonable manner." Based on this representation, the Tenants Association resumed its "practice of distributing GGTA newsletters to all tenants by sliding them under doors. . . ." Neither building management nor the Tenants Association, however, discussed or defined what "a reasonable manner" meant.

Golden Gateway hired a new building manager in 1995. In early 1996, the Tenants Association sharply increased its leafletting activity and distributed at least eight separate newsletters and notices from February to May. Because of this increased activity, the new manager asked the Tenants Association to scale back its leafletting and to limit its distributions to newsletters. Citing the First Amendment of the United States Constitution, the Tenants Association refused and continued to distribute its newsletter to all residential tenants.

Soon after, Golden Gateway revised its building standards. The revised standards stated in relevant part: "Any solicitation within the building is absolutely forbidden. This includes, for example, solicitation for profit, political purpose or any other reason, whether in writing or in person . . . . [¶] Leafleting within the building is absolutely forbidden. This includes, for example, posting leaflets or notices anywhere in the buildings other than on the bulletin boards located in the laundry rooms, sliding leaflets or other papers underneath tenants' doors, placing leaflets or other papers on or about tenants' doors, or leaving multiple copies of leaflets or other papers in any common areas. The only exception to this rule is where a tenant specifically requests that papers be delivered to him or her either under or in front of his or her door. . . ." Golden Gateway mailed a copy of the new standards to each residential tenant and explained that each tenant must comply with these standards pursuant to his or her lease agreement.

Despite the new building standards, the Tenants Association continued to distribute its newsletter door-to-door. Golden Gateway then filed a complaint, seeking to enjoin the Tenants Association from distributing leaflets "in and around their apartment doors." The Tenants Association responded by filing a cross-complaint for injunctive and declaratory relief. The cross-complaint contended, among other things, that the Tenants Association had a constitutional right to distribute its newsletters.

The trial court initially issued a preliminary injunction enjoining the Tenants Association from leafletting. After trial, however, the court dissolved the injunction and held that the Tenants Association had "a binding contractual right to distribute its newsletter throughout" the Complex "by placing its newsletters under the doors of all tenants, on the door knobs of tenants, and on bulletin boards that are provided." Upon resolving the case on contractual grounds, the court declined to reach the constitutional free speech issues.

The Court of Appeal reversed. After concluding that Golden Gateway did not enter into "a binding lease agreement modifying its Building Standards" with the Tenants Association based on the first manager's representation, the court held that the Tenants Association had no right to leaflet in the Complex under the United States or California Constitution.

We granted review to determine: (1) whether the tenants association of a large apartment complex has the right, under the California Constitution, to distribute its newsletter and other leaflets concerning residence in the complex to tenants in the building; and, if so, (2) whether a ban on the distribution of these materials to tenants constitutes an unreasonable time, place and manner restriction on free speech.

Discussion

I

In Hudgens v. National Labor Relations Bd. (1976) 424 U.S. 507, 519-520, 96 S.Ct. 1029, 47 L.Ed.2d 196 (Hudgens), the United States Supreme Court held that a union had no federal constitutional right to picket in a shopping center because the actions of the private owner of the shopping center did not constitute state action. Hudgens, supra, at pages 518-519, 96 S.Ct. 1029, expressly reversed Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (Logan Plaza), by clarifying and extending the court's ruling in Lloyd Corp., Ltd. v. Tanner (1972) 407 U.S. 551, 570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (Lloyd) (holding that political leafletters had no federal free speech rights in a privately owned shopping mall). As acknowledged by both parties, Hudgens and Lloyd establish that the Tenants Association has no right to distribute its newsletter door-to-door under the United States Constitution. The lack of federal constitutional protection does not, however, "...