Opinion
Aрpellants Vernon Van and Mary Rose Barry brought separate actions against Target Corporation, Wal-Mart Stores, Inc., and Home Depot U.S.A., Inc. (sometimes collectively respondents), alleging that respondents unlawfully prevented them from gathering signatures in front of respondents’ stores that are located in commercial retail complexes. The trial court granted summary judgment in favor of respondents, ruling that individual stores did not possess the attributes of a public fomm.
We affirm.
Robins
v.
Pruneyard Shopping Center
(1979)
*1378 FACTUAL AND PROCEDURAL BACKGROUND
The Parties
Target Corporation (Target) operates hundreds of retail stores in California, many of which are located in large shopping centers. Though the nature of the property and other establishments surrounding each store may vary, the Target stores themselves are quite uniform. Many Target stores contain Food Avenue restaurants. Target stores typically have only one or two doorways through which all customers must necessarily pass. In 2002, company policy provided that “Target does not prohibit individuals or groups from engaging in constitutionally protected speech in front of its California stores,” but that it may reasonably regulate the time, place and manner of such expression. As оf 2005, Target’s policy was to prohibit solicitors from any organization from being on store property. Solicitors would be given a copy of Target’s solicitation policy, told they were trespassing and asked to leave.
Wal-Mart Stores, Inc. (Wal-Mart), operates 152 Wal-Mart stores (149 discount stores and three supercenters) and 33 Sam’s Club stores in California. Though the location of the Wal-Mart stores varies from freestanding to part of large shopping centers, the stores themselves—like Target—are quite uniform. Typically, Wal-Mart stores contain only one or two main doorways, with additional doorways at the garden department and/or the automotive department. Many Wal-Mart stores contain restaurants or cafeterias, and some stores feature bulletin boards with photographs of missing children. Four Wal-Mart stores in California are located in enclosed shopping malls which Wal-Mart neither owns nor operates. There is a separate mall entrance to Wal-Mart at those four locations, though 80 to 90 percent of the customers use the stores’ main entrance. Some of the shopping centers where Wal-Mart stores are located host community events and contain facilities that invite the public to congregate and linger.
According to Wal-Mart’s rules and regulations for petitioning and soliciting from Wal-Mart California property, “petitioning and soliciting shall only take place in the designated areas specified by Wal-Mart.” Signs developed in 1996 and posted in several Wal-Mart stores stated: “Wal-Mart apologizes for аny inconvenience caused by solicitors outside our store. We do not advocate their methods of expressions. Their presence is currently permitted by California court decision. If you object to the presence of these solicitors, contact your state assembly person.”
*1379 Home Depot U.S.A., Inc. (Home Depot), operates 187 stores in California which primarily sell home, garden, construction and home improvement items. Approximately 70 percent of Home Depot stores are stand-alone stores, while the remaining stores are in a variety of locations, including strip retail developments and shopping centers. Home Depot is a tenant at all of its California locations. Though the square footage of the stores varies, the stоres are generally uniform in design and layout. They typically have one or two doorways at the main entrance through which all customers must pass and one additional doorway at the garden department. Unless restricted by city ordinance, Home Depot uses the area immediately in front of the store—the “apron”—as an extension of the store’s sales operations. Some Home Depot stores contain restaurants. Some of the shopping centers where Home Depot stores are located feature plazas, common walkways and/or central courtyards with sitting areas.
Appellants represent a class of individuals who gather voter signatures for initiatives, referenda and recalls and register voters for upcoming elections. On multiple oсcasions, after appellants had set up a table off to the side of the entrance to either Target, Wal-Mart or Home Depot for the purpose of collecting signatures, individuals identifying themselves as management employees would demand that appellants leave.
The Complaints and Summary Judgment Motion
Appellants filed three identical complaints in August 2004 against Target, Wal-Mart and Home Depot. Each complaint alleged causes of action for the violation of right to free speech, violation of Civil Code sections 51 and 52, violation of Business and Professions Code section 17200 and declaratory relief, and sought damages and equitable and injunctive relief. The cases were deemed both related and complex pursuant to California Rules of Court, rules 3.300 and 3.400, respectively, and assigned to one judge.
On April 29, 2005, respondents filed a joint motion for summary judgment. They asserted that appellants had no constitutional right to enter respondents’ property, as the stores were not public fora within the meaning of Pruneyard. In support of their motion, they submitted declarations from store management employees who described the purpose and layout of the stores, emphasizing that the stores are designed to encourage shopping as opposed to congregating and lingering and for that reason do not contain amenities such as gathering areas or entertainment. They also sought judicial notice of injunctive orders and judgments in other California cases prohibiting the direct or indirect use of store property for any expressive activity, inсluding the collection of signatures.
*1380 Nine months later, on January 27, 2006, appellants filed their opposition to the motion. Conceding that their action was directed only at Target, Wal-Mart and Home Depot stores located in larger retail developments—as opposed to stand-alone stores—they asserted that such developments were public fora where appellants had the right to exercise free speech by gathering signatures.
In support of their opposition, appellants submitted their own declarations describing their experience of being asked to leave various store locations by individuals who identified themselves as employees of either Target, Wal-Mart or Home Depot.
They also offered the declaration of Professor Anastasia Loukaitou-Sideris, chair of the University of California, Los Angeles’s Department of Urban Planning; she provided general information about the role of shopping centers in contemporary times. She declared that “[t]he economic lifeblood once found downtown has moved to the suburban shopping centers, which have substantially displaced the downtown business districts as the centers of both commercial and social activity.” As a result of her surveying 39 California shopping centers, she concluded that a significant percentage of Target, Wal-Mart and Home Depot stores were part of shopping centers that had “a unified architectural theme and common court yards, walkways, and parking facilities.” She found that those shopping centers exhibited several common characteristics, including that they “(1) feature common areas, courtyards or plazas, inviting people to gather or socialize; (2) have multiple uses, which in addition to shopping may include entertainment, and services; (3) are open and freely accessible to the public.”
She further noted that many of the shopping centers surveyed included restaurants and theaters and hosted community events, and that many Target and Wal-Mart stores contained restaurants and video arcades on the premises. She opined that “areas of the shopping centers outside the stores are functionally equivalent to the town’s public sidewalks” because the centers are surrounded by residential blocks lacking public spaces and those areas often provide one gathering signatures the only means of accessing the public. She concluded that respondents “operate stores in shopping centers and malls which have replaced the traditional public forums and effectively act as community centers and nodal points for their surrounding communities.”
Appellants also submitted numerous photographs of Target, Wal-Mart and Home Depot stores in shopping center settings, as well as information about the configuration of and amenities provided by those centers, including their restaurants, theaters, and community events.
*1381 Respondents replied on February 10, 2006. They emphasized that appellants’ evidence focused on the public nature of shopping centers as a whole as opposed to the particular Target, Wal-Mart and Home Depot stores located at those shopping centers. They also submitted evidentiary objections to Professor Loukaitou-Sideris’s declaration and each of appellants’ declarations.
The Trial Court’s Ruling
The trial court heard the motion on February 14, 2006. On March 6, 2006, it filed an order granting summary judgment. The trial court framed the dispositive issue as whether First Amendment protection should be accorded to expressive activity that does not occur in common areas, but rather, takes place on property controlled by specific retailers. Answering that question in the negative, the trial court ruled: “Although plaintiffs have presented evidence that the SHOPPING CENTERS themselves may contain plazas, courtyards and common areas there is no аdmissible evidence presented that these moving defendants’ store entrances, aprons and perimeters thereto consist of plazas, courtyards, walkways and entertainment or dining venues. In fact, the opposite is true in the sense that the aprons and perimeters of these establishments have become, in many instances, an extension of the store itself.” On the basis of this evidence, the court concluded “that the societal interest in using defendants’ stores as forums for exercising free speech and petitioning activities does not outweigh the defendants’ interests in exercising exclusive control over the use of their private property.” To the extent that respondents’ stores were located in larger complexes containing common areas, the trial court noted that appellants “need to look to mall owners for the right to conduct expressive activity and not to these specific retail establishments.”
Accordingly, the trial court granted summary judgment and thereafter entered three separate judgments in favor of respondents. Appellants appealed each of the judgments and the three matters have been consolidated for appeal.
DISCUSSION
I. Standard of Review.
Appellants contend that the trial court erred in granting summary judgment for two reasons. First, they assert that triable issues of fact existed as to whether they were gathering signatures on respondents’—as opposed to a *1382 particular shopping center’s—private property. Second, they contend the trial court erroneously concluded that the аrea in front of respondents’ stores was not a public forum.
Summary judgment is warranted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Defendants moving for summary judgment meet this burden by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once a defendant makes this showing, the burden shifts to the plaintiff to set forth specific facts showing that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2);
Barton
v.
Elexsys Internal, Inc.
(1998)
We review a trial court’s grant of summary judgment de novo, “considering ‘all of the evidence set forth in the [suрporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’ ”
(Artiglio
v.
Coming Inc.
(1998)
On the basis of our review, we conclude that the trial court correctly granted summary judgment. The undisputed evidence demonstrated the private nature of the property on which appellants sought to gathеr signatures. It further showed that the entrance area of respondents’ stores did not function as a public forum where appellants would be entitled to engage in expressive activities.
II. The California Constitution Protects Expressive Activity Conducted in a Public Forum, Which Includes a Privately Owned Shopping Center.
The First Amendment to the United States Constitution does not encompass the right to engage in expressive activity at a privately owned shopping center.
(Hudgens v. NLRB
(1976)
Pruneyard
involved the privately owned, 21-acre Pruneyard Shopping Center, which contained walkways, plazas and buildings that housеd 65 shops, 10 restaurants, and a movie theater.
(Pruneyard, supra,
The
Pruneyard
court examined the growing prevalence and importance of the suburban shopping center, noting that “central business districts apparently have continued to yield their functions more and more to suburban centers.”
(Pruneyard, supra,
Subsequent decisions applying the
Pruneyard
balancing test focus on whether private property serves as the functional equivalent of a public forum.
(Albertson’s, Inc.
v.
Young
(2003)
Applying these factors, courts have consistently concluded that modest and individual commercial and retail establishments lack the characteristics of a public forum. Addressing a commercial establishment, the court in
Allred
v.
Harris
(1993)
Trader Joe’s Co. v. Progressive Campaigns, Inc.
(1999)
In
Costco Companies v. Gallant
(2002)
Courts have reached the same balance when considering the interests of individual retailers within larger shopping centers. In
Albertson’s, supra,
In determining whether the Albertson’s store was the functional equivalent of a traditional public forum, the court first considered the nature of the store itself. It noted that the store contained no plazas, walkways or courtyards for patrons to congregate; had no place for patrons to sit and eat except a courtesy bench; and provided no form of entertainment.
(Albertson’s, supra,
Similarly, the district court in
Slevin v. Home Depot
(N.D.Cal. 2000)
Synthesizing the principles to be gleaned from this authority, the
Albertson’s
court summarized: “To establish a right to solicit signatures at the entrance to a specific store, it must be shown that the particular location is impressed with the character of a traditional public forum for purposes of free speech.”
(Albertson’s, supra,
III. The Trial Court Properly Granted Summary Judgment.
A. There Was No Triable Issue of Material Fact Concerning the Private Ownership of the Property at Issue.
In their complaints, appellants alleged that they were “uniformly, and consistently evicted from premises owned and operated by [respondents].” At the hearing on the summary judgment motion, appellants argued for the first time that summary judgment should be denied because a triable issue of fact existed concerning the ownership of the apron area in front of each store. They read excerpts of certain leases into the record, which showed that the property at issue was owned by the shopping centers and not included in at least some of the stores’ leases. Because the apron areas were shopping center property, appellants contended that those areas should be considered public fora, similar to other common areas of large shopping centers.
*1387 In its ruling, the trial court did not consider the question of ownership, but rather, evaluated the character of the property immediately in front of the stores to determine whether “the holding in Pruneyard applies] to the entrances, aprons and side entrance perimeters of retail establishments that may be part of larger shоpping 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. All sorts of seasonal merchandise are placed on the sides of the entrances for further retailing.”
We reject appellants’ argument that summary judgment was improperly granted because respondents did not meet their burden to show that they owned or leased the property immediately in front of their stores. “[A] summary judgment motion is directed to the issues framed by the pleadings. [Citations.] Thоse are the only issues a motion for summary judgment must address. [Citations.]”
(Hilton K.
v.
Greenbaum
(2006)
*1388 Further, given the undisputed еvidence concerning the character and use of the stores’ apron and perimeter areas, we cannot conclude that any ambiguity as to the areas’ actual ownership constituted a triable issue of material fact. The evidence was undisputed that the areas in question were private property. As the trial court recognized, the undisputed evidence further showed that respondents controlled the areas immediately outside their stores by using those areas to sell merchandise. Under these circumstances, the issue to be resolved by summary judgment was properly confined to the question of whether the areas at issue functioned as public fora so as to preclude respondents from interfering with appellants’ signature gathering.
B. The Undisputed Evidence Established That the Area Immediately Surrounding Respondents’ Stores Lacked the Characteristics of a Public Forum.
The trial court ruled that any societal interest in using the apron and perimeter areas of respondents’ stores as public fora for exercising free speech was outweighed by respondents’ interest in maintaining exclusive control over those areas. Evaluating the relevant factors, the trial court found 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 stоres 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.”
On the basis of the undisputed evidence before the trial court, we conclude that the trial court properly balanced the interests of respondents and society to conclude that the apron and perimeter areas of respondents’ stores do not act as the functional equivalent of a traditional public forum. Turning first to the nature, purpose and primary use of the property (see
Albertson’s, supra,
With respect to the nature and extent of the public invitation to use the property, the evidence showed that the stores are uniformly designed to encourage shopping as opposed to meeting friends, congregating or lingering. As the trial court notеd, respondents often used the apron and perimeter areas of the stores to display seasonal merchandise—a use consistent with the stores’ invitation to the public to shop. Appellants point to evidence that many stores contain restaurants and that some contain video arcades or community bulletin boards as evidence of an invitation to the public to congregate. But there was no evidence that these store amenities are designed to encourage patrons to congregate or used by patrons as a gathering place. Instead, appellants’ evidence indicated that the restaurants found within Target stores were intended to facilitate the ease of patrons’ shopping experience. We agree with the characterization in
Slevin v. Home Depot, supra,
Finally, we see no relationship between the ideas sought to be presented and the purpose of the property’s occupants.
3
(See
Albertson’s, supra,
Respondents’ stores—including the store apron and perimeter areas—are not designed as public meeting spaces. The stores’ invitation to the public is to purchase merchandise and no particular societal interest is promoted by using the stores for expressive activity. As such, 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. We are not persuaded by appellants’ central argument that the presence of respondents’ stores in larger, Pruneyard-type shopping centers alters this balance. Appellants contend that a triable issue of material fact exists as to the public nature of the storеs’ apron and perimeter areas because their evidence demonstrated that many stores are physically attached to larger shopping centers which generally contain a uniform architectural theme, plazas and courtyards that encourage patrons to congregate, myriad restaurants and various forms of entertainment, including movie theaters and community events. They assert that evidence showing Target, Wal-Mart and Home Depot stores often serve as shopping center “anchors” highlights the indivisible nature of respondents’ stores and the shopping centers themselves.
The trial court relied heavily on
Albertson’s
in rejecting appellants’ argument. In that case, the court “conclude[d] that Albertson’s location in Fowler Center does not impress the walkways of Albertson’s store with the character of a traditional public forum.”
(Albertson’s, supra,
*1391
Indeed, neither
Pruneyard
nor its progeny has ever characterized an individual retailer as a public forum. The focus of the
Pruneyard
decision was on balancing the constitutional guarantees of speech and petition against private property rights.
(Pruneyard, supra,
23 Cal.3d at pp. 908-911.) In striking the appropriate balance, the court stated: “ ‘As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there], A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations [citation] would not markedly dilute defendant’s property rights.’ [Citation.]”
(Id.
at pp. 910-911.) The court specifically considered the role of the shopping center in modem society; it noted that increasingly “ ‘such centers are becoming “miniature down-towns” ’ ” and cautioned that it was not considering the rights of a different type of property owner, such as the “ ‘proprietor of a modest retail establishment.’ ”
(Id.
at p. 910 & fn. 5.) In affirming the
Pruneyard
decision, the United States Supreme Court similarly highlighted the public nature of the shopping center in balancing the respective rights at issue, describing Pruneyard as “a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large.”
(Pruneyard Shopping Center v. Robins, supra,
We decline to extend the holding in Pruneyard to the entrance and exit area of an individual retail establishment within a larger shopping center. Appellants’ evidence concerning the public nature of certain shopping centers’ common areas failed to raise a triable issue of fact as to whether apron and perimeter areas at the entrances and exits of respondents’ stores served as public fora. In view of the undisputed evidence that those particular areas lacked any public fomm attributes, the trial court properly concluded that any societal interest in using respondents’ stores as fora for exercising expressive activities did not outweigh respondents’ interest in maintaining control over the use of their stores.
*1392 DISPOSITION
The judgment is affirmed. Respondents to recover their costs on appeal.
Boren, P. J., and Ashmann-Gerst, J., concurred.
Notes
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 grievanсes, and assemble freely to consult for the common good.”
In their reply brief, appellants contend they should not be bound by their complaints because they could have sought leave to amend to allege ownership differently. But they never requested leave to amend in the trial court, have not explained why such leave was not requested and have failed to cite any authority for the proposition that it could be requested at this late date. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1139, p. 595 [once judgment is entered complaint can only be amended if judgment vacated by motion under Code Civ. Proc., § 473 or by motion for a new trial].) Moreover, amendments are usually allowed after summary judgments have been filed only to repair complaints that are legally insufficient—in other words, those that would be subject to a motion for judgment on the pleadings.
(College Hospital Inc. v. Superior Court
(1994)
That some Target stores imposed time, place and manner restrictions or that some Wal-Mart stores had posted signs indicating that soliciting and petitioning were permitted in designated areas did not create a triable issue of fact. (See
Slevin
v.
Home Depot, supra,