36 Cal. App. 5th 649
Cal. Ct. App. 5th2019Background
- Six Flags Discovery Kingdom is a 138-acre amusement park in Vallejo with a ticketed interior and unticketed exterior areas (admissions plaza, parking lots, walkways) used by the public to enter/exit the park; exterior areas do not provide spaces designed for lingering or entertainment.
- The park was municipally owned and privately operated for years; Park Management purchased it from the City in 2007 but entered agreements preserving zoning as "public and quasi-public" and retaining certain public financing and revenue-sharing arrangements.
- Animal-rights protesters, including Joseph Cuviello, had for years demonstrated at the park entrance; after Park Management adopted a policy banning expressive activity on park property, protesters remained at the gate in April 2014 and were directed to move to the public sidewalk.
- Park Management sued protesters for private trespass and obtained a permanent injunction barring protesting on the park’s driving/walking paths, parking lots, and entrance/admission areas; Cuviello intervened and asserted federal and state constitutional free-speech defenses and a prescriptive-easement defense.
- At summary judgment the trial court ruled for Park Management, rejecting Cuviello’s First Amendment and California Constitution public-forum claims and his prescriptive-easement claim; Cuviello appealed.
- The Court of Appeal reversed as to the California Constitution claim, holding the unticketed exterior areas are a public forum under article I, § 2, and therefore Park Management could not enforce a categorical ban on expressive activity there; it affirmed rejection of the prescriptive-easement claim (unpublished portion).
Issues
| Issue | Plaintiff's Argument (Cuviello) | Defendant's Argument (Park Management) | Held |
|---|---|---|---|
| Whether unticketed exterior areas of Six Flags are a public forum under Cal. Const. art. I, § 2 | Exterior areas are functionally public (zoning as "public/quasi-public," public use, long public access), so state free-speech protections attach | Property is privately owned; exterior areas are not designed for congregation or entertainment and thus not a public forum | Held: Exterior unticketed areas are a public forum under article I, § 2; injunction reversed |
| Whether First Amendment (federal) protects protests on private park property | First Amendment should apply where property functions as public forum | First Amendment does not extend to private property here | Not reached (resolved on state constitutional grounds) |
| Whether Park Management waived right to exclude by tolerating past protests | Long history of peaceful protests implied Park Management consent or diminished exclusion rights | Allowing protests previously did not create a permanent right to protest | Court found tolerance relevant to balancing but did not decide waiver per se; outcome favored Cuviello on public-forum analysis |
| Whether Cuviello acquired a prescriptive easement to protest on the property | Long-standing, continuous, open, and notorious demonstrations created a prescriptive right to protest | Requirements for prescriptive easement not met; no entitlement | Trial court rejection of prescriptive-easement claim affirmed (unpublished portion) |
Key Cases Cited
- Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899 (Cal. 1979) (private shopping-center common areas may be public forum under state constitution)
- Fashion Valley Mall, LLC v. NLRB, 42 Cal.4th 850 (Cal. 2007) (private property open to public like streets or parks can be public forum)
- In re Hoffman, 67 Cal.2d 845 (Cal. 1967) (railway terminal held public forum analog for leafleting)
- Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal.4th 1083 (Cal. 2012) (areas designed to induce congregation for entertainment/relaxation required to be public forum within shopping centers)
- Marsh v. Alabama, 326 U.S. 501 (U.S. 1946) (company town held public-forum character despite private ownership)
- Evans v. Newton, 382 U.S. 296 (U.S. 1966) (privately owned park serving public functions retains public character)
- Trader Joe's Co. v. Progressive Campaigns, Inc., 73 Cal.App.4th 425 (Cal. Ct. App. 1999) (balancing test applying Pruneyard to determine whether private property is functional equivalent of public forum)