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   - HAMBURG v. WAL MART STORES INC

HAMBURG v. WAL MART STORES INC
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Court of Appeal, First District, Division 2, California.
Dan HAMBURG, et al., Plaintiffs and Appellants, v. WAL-MART STORES, INC.,
et al., Defendants and Respondents.
No. A101829.Decided: February 10, 2004 Law Offices of Mark E. Merin, Mark
E. Merin, Sacramento, for Appellants. Phillips, Spallas & Fotouhi, LLP,
Robert K. Phillips, Ryan T. Dunn, San Francisco, for Respondents.
INTRODUCTION
Appellants, who were conducting a protest at respondent Wal-Mart's business
premises in Ukiah, were arrested for trespass after they refused to leave.
They commenced this action for false arrest and violation of constitutional
rights against Wal-Mart and the store manager who made the arrests as a
private person. (Pen.Code, § 837.) Respondents moved for summary judgment
and the motion was granted by the trial court, which thereupon dismissed
the complaint.
Relying upon Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153
Cal.Rptr. 854, 592 P.2d 341, and its progeny, particularly Union of
Needletrades, etc. Employees v. Superior Court (1997) 56 Cal.App.4th 996,
65 Cal.Rptr.2d 838 (Needletrades ), the court determined that respondent's
“time, place and manner” restrictions were as a matter of law reasonable on
their face and constitutional, and that appellants' failure to comply with
those restrictions constituted a complete defense to appellants' claims.
The facial reasonableness of the restrictions is not, in our view, the
dispositive consideration. (Without deciding the issue, we shall for
purposes of this appeal assume Wal-Mart's “time, place and manner”
restrictions are facially constitutional.) Because the trial court failed
to address the issues directly framed by the pleadings, and the evidence
does not establish the absence of triable issues of material fact (Code
Civ. Proc., § 437c), we shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Wal-Mart owns and operates the largest retail store in the City
of Ukiah. The stand-alone structure, which has 104,000 square feet of floor
space, is located within a complex that includes other “big box” outlets,
whose parking areas are each commonly used by customers of other stores.
The parking lot adjacent to the Wal-Mart store is located on the west side
of the structure in front of its main entrance. The parking lot is
separated from the store by a driveway, a median, and a wide sidewalk that
runs along the side of the building. Wal-Mart sells an extraordinarily wide
variety of merchandise and provides internal space for at least three
independent businesses: a restaurant, a stereo store and a tax preparation
service. Kiddie rides, vending machines and a community bulletin board are
located on the sidewalk along the front of the store near the entrance.
According to appellants, this area “has become known as the best place in
Ukiah to gather signatures to place matters on the state or local ballot.”
On February 17, 2000, one Richard Johnson was arrested while on Wal-Mart
property collecting signatures to qualify a voter initiative, known as
Measure G, to decriminalize the personal use of marijuana. Local print and
broadcast media reports stated or suggested that Wal-Mart caused Johnson to
be arrested because it opposed his efforts to qualify Measure G for the
ballot.
Four days later, stimulated by these news reports, appellants and
approximately 25 others appeared at the Wal-Mart store to protest Johnson's
arrest, which they saw as a misuse of “the power of arrest to suppress
grass roots democracy.” Appellants asked customers and others to sign
petitions supporting Measure G and encouraged them to register to vote.
Some appellants carried signs bearing messages such as “Free speech,”
“Wal-Mart or freedom,” and “Time to vote.”
Appellants' expressive activities, which we discuss below in greater
detail, lasted for about an hour. The police appeared on the scene,
observed appellants' activities and discussed the situation with Wal-Mart
store manager Donald Estes, but made no arrests. In the presence of the
police, Estes asked appellants to leave and when they refused made
citizen's arrests of each of them. The police then took appellants into
custody and transported them to the Ukiah Police Department where they were
booked and released. Criminal charges were never filed.
On February 16, 2001, appellants filed a complaint in the Mendocino County
Superior Court against respondents Wal-Mart and Estes, claiming false
arrest and violation of constitutional rights, alleged as an intentional
tort.1
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_1>
Respondents answered the complaint on March 14, 2001. On August 29, 2002,
respondents moved for summary judgment or in the alternative summary
adjudication.
On November 15, 2002, the court granted the motion for summary judgment in
its entirety and dismissed the complaint with prejudice. The court ruled
that Wal-Mart had adopted reasonable rules regulating the exercise of those
rights in an effort to ensure that persons wishing to exercise free speech
rights did not interfere with normal business operations, and that
appellants had presented no evidence that those rules were too broad or
unreasonably restricted the ability of persons exercising the right of free
speech to reach their intended audiences. Nor, the court found, did
appellants show that Wal-Mart could have adequately protected its business
operations through less restrictive regulations. The court concluded that
Wal-Mart's “time, place and manner” restrictions “present a reasonable
balance between the rights of free speech and the rights of private
property ownership,” and that there was no triable issue of material fact
as to whether those restrictions constituted reasonable regulations to
assure that free speech activities did not interfere with Wal-Mart's normal
business operations. The court determined, finally, that appellants'
failure to comply with those regulations “constitutes a complete defense to
plaintiffs' claim that Wal-Mart and Donald Estes violated plaintiffs'
constitutional rights of free speech on February 21, 2000. That same
failure also constitutes a complete defense to the claim for false arrest
for trespass.” The order granting summary judgment and dismissing the
complaint with prejudice was entered on November 15, 2002. This timely
appeal followed.
DISCUSSION
I.
“Appellate review of a summary judgment is limited to the facts shown in
the supporting and opposing affidavits and those admitted and uncontested
in the pleadings. In deference to the strong public policy favoring a trial
on the merits, appellate courts are bound by the same principles governing
the trial court's determination: i.e., the moving party's (respondent's)
papers are strictly construed and the opposing party's (appellant's) papers
are liberally construed. All doubts as to the propriety of granting the
motion (whether there is any issue of material fact [Code of Civil
Procedure] § 437c) are to be resolved in favor of the party opposing the
motion (i.e., a denial of summary judgment).” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2003) ¶ 8:164,
pp. 8-98.7 to 8-98.8, citing Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143; Stratton v. First
Nat'l Life Ins. Co. (1989) 210 Cal.App.3d 1071, 258 Cal.Rptr. 721; Heredia
v. Farmers Ins. Exchange (1991) 228 Cal.App.3d 1345, 1353-1354, 279
Cal.Rptr. 511.)
Summary judgments are reviewed de novo. (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116; Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 67-68, 99 Cal.Rptr.2d 316, 5 P.3d 874.)
“Because trial judges no longer exercise discretion in considering a
summary judgment motion, application of the abuse of discretion standard is
inappropriate. Under current law, summary judgment motions raise only
questions of law regarding the construction and effect of the moving and
opposing papers; and questions of law are subject to the independent
standard of review.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs supra, ¶ 8:166, p. 8-98.9, citing Saldana v. Globe-Weis Systems
Co. (1991) 233 Cal.App.3d 1505, 1511-1515, 285 Cal.Rptr. 385; Donchin v.
Guerrero (1995) 34 Cal.App.4th 1832, 1837, 41 Cal.Rptr.2d 192.)
We apply the same three-step analysis required of the trial court. “ ‘
“First, we identify the issues framed by the pleadings since it is these
allegations to which the motion must respond․ [¶] Secondly, we determine
whether the moving party's showing has established facts which negate the
opponent's claim and justify a judgment in movant's favor․ [¶] When a
summary judgment motion prima facie justifies a judgment, the third and
final step is to determine whether the opposition demonstrates the
existence of a triable, material factual issue.” ’ [Citations.]” (Chevron
U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d
674.)
II.
The issues framed by the pleadings are straightforward. Appellants' cause
of action for false arrest is predicated on the allegations that they and
others “gathered peacefully to picket defendant WAL-MART's store in Ukiah,”
that “[t]he picketing did not obstruct vehicular traffic nor prevent
customers from entering or exiting the premises,” that respondents
threatened to place them under citizen's arrest if they refused to leave
Wal-Mart's premises, that compliance with the demand to leave would have
required them “to surrender their state constitutional rights to picket,”
which they were unwilling to do, and that placing appellants under
citizen's arrest, which resulted in their being taken into custody by the
Ukiah City Police, “constituted false arrests” proximately causing injury.
False arrest is not a different tort but merely one way of committing the
tort of false imprisonment. (Asgari v. City of Los Angeles (1997) 15
Cal.4th 744, 752, fn. 3, 63 Cal.Rptr.2d 842, 937 P.2d 273); (Arpin v. Santa
Clara Valley Transp. Agency (9th Cir.2001) 261 F.3d 912, 919.) The tort of
false imprisonment “is premised upon a violation of the personal liberty of
another accomplished without lawful authority․” (Asgari, at p. 753, 63
Cal.Rptr.2d 842, 937 P.2d 273.) A peace officer who accepts custody of a
person following a citizen's arrest is not required to correctly determine
whether the arrest was justified (see Kinney v. County of Contra Costa
(1970) 8 Cal.App.3d 761, 768, 87 Cal.Rptr. 638 (Kinney )),2
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_2> and
cannot be held liable for the arrest if it was improper. (Pen.Code, § 847)
Therefore, while a person falsely arrested by a citizen ordinarily has no
remedy against the peace officer who took him or her into custody as a
result of the arrest, he or she has a tort remedy against the offending
citizen. (Kinney, at p. 769, 87 Cal.Rptr. 638.)
Appellants maintain that Estes's arrests of them were false not only
because they did not commit the criminal trespass for which he arrested
them (Pen.Code, § 602.1, subd. (a)), but also, and independently, because
respondents do not allege in their answer to the complaint that the
trespass was committed or attempted in Estes's presence, as required by the
statute authorizing arrest by a private person (Pen.Code, § 837, subd. 1),
and confirmed by the case law (see, e.g., People v. Sjosten (1968) 262
Cal.App.2d 539, 543-544, 68 Cal.Rptr. 832), and the evidence respondents
submitted in support of their motion for summary judgment establishes that
the offense (if there was one) was not committed or attempted in Estes's
presence. Therefore, appellants maintain, Estes lacked legal authority to
personally place them under arrest.
The cause of action for violation of constitutional rights, which
incorporates the allegations of the cause of action for false arrest,
alleges that appellants' activities were protected by article I, sections 2
and 3 of the California Constitution, and appellate opinions interpreting
those provisions, “which hold that public fora exist on the private
property of large retail establishments which have supplanted the
traditional town squares and/or downtown shopping areas which were the
traditional sites for free speech activities,” and that respondents'
arrests of appellants violated rights guaranteed by the aforesaid
constitutional provisions. As to this cause of action, respondents
maintained that Wal-Mart's premises are not a public forum and that
appellants therefore have no constitutional right to protest on their
property, and that appellants could not succeed even if the premises are a
public forum due to their failure to comply with Wal-Mart's reasonable
“time, place and manner” restrictions.
Both causes of action focus upon the impropriety of the arrests and the
reason they were made, which was allegedly to suppress appellants' right of
free speech. The complaint does not claim that Wal-Mart's “time, place and
manner” restrictions are unreasonable or even refer to them.
III.
The evidence submitted by respondents in support of the motion for summary
judgment consisted exclusively of limited portions of the deposition
testimony of each of the eight appellants,3
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_3>
appellant Hamburg's responses to form interrogatories, and the declaration
of respondent Estes. Estes's declaration was accompanied by a copy of the
incident report of the Ukiah Police, copies of three complaints Wal-Mart
received from customers regarding appellants' activities, and a copy of
Wal-Mart's “Rules and Regulations for Petitioning and Soliciting from
Wal-Mart California Property.” The evidence appellants submitted in
opposition to the motion consisted primarily of the declaration of
appellant David Drell, one of the coordinators of the protest. Neither
party objected to the admissibility of any of the evidence submitted by the
other and we find all the evidence admissible.
The proffered portions of appellants' depositions describe appellants' past
political activities, the general nature of their expressive activities at
Wal-Mart on the day in question, and the substance of the information they
communicated and the number of people they spoke with. Appellants
acknowledged that their activities did not take place in the area
designated by Wal-Mart for expressive activities, that they had not
procured insurance coverage for the activity. All appellants except David
Drell, who was a coordinator of the protest, admitted they made no effort
to identify themselves in advance to Wal-Mart management. Drell stated that
after arriving at the scene he entered the store to find the manager in
order to identify himself, describe the nature of the planned expressive
activity and provide a copy of the petition and voter registration form
protestors would be using. The Wal-Mart “greeter” Drell approached refused
to direct him to the manager and “said something disparaging about the
content of the petition,” so Drell left the store and the protest commenced.
Appellants' confined most of their activities to a landscaped median
approximately 25 feet from the front entrance to the store and the sidewalk
along the front of the store. They did not use the four-by-six-foot area
designated by Wal-Mart for expressive activities because that space was
being used by two individuals soliciting donations to a children's program.
Estes's short declaration states that the Ukiah Wal-Mart store does not
have “theatres, plazas, walkways or courtyards, where patrons are invited
or encouraged to congregate and spend time together”; that the store “is in
the business of selling merchandise, not to create a public square or
similar place for people to gather”; that at the time of the incident
Wal-Mart “had a petitioning policy, which individuals must adhere to in
order to be granted access to the Ukiah Wal-Mart store property for
purposes of speech activity”; that at that time “Wal-Mart designated an
area 4 x 6 feet in size for particular expressive speech activity,” though
the store “could adjust this area upon review of the particular activity
engaged in, and the number of participants”; that at the time of the
incident, “it was not good business practice for [the store] to encourage
customers to congregate at the front of the store because there is
merchandise at this location and sales cannot be made”; that the Ukiah
Wal-Mart store “had previous problems with persons who enter property for
the purpose of protesting and petitioning for various political causes”;
and that, at the time of the incident in question, the store “had received
numerous complaints from customers and employees concerning aggressive and
harassing conduct by [appellants] and others in their group.” Estes states
that he “had conversations both with Ukiah police officers, [appellants]
and other participants, in order to resolve the situation prior to any
arrests.” Finally, he states that “[a]fter my discussions with Ukiah police
officers, I believed in good faith that [appellants] plaintiffs were in
violation of the law.” Accordingly, he asked appellants to leave and, when
they refused, placed them under citizen's arrest.
Wal-Mart's rules and regulations impose six requirements. First,
petitioning and soliciting is only permitted “in designated areas specified
by Wal-Mart.” “Wal-Mart reserves the right to change the designated area in
good faith as Wal-Mart deems necessary for the commercial operation of its
store.” It is undisputed that the designated area at the Ukiah store is a
four-by-six foot rectangle located 17 feet south of the main entrance.
Second, “Wal-Mart limits an Applicant to three consecutive days for
petitioning and soliciting and requires advance notice of five business
days of such activity.” Petitioning and soliciting is not allowed during
“peak traffic days,” such as “the period from the weekend before
Thanksgiving to and including January 2 of the following year.”
Third, “[n]o sign, poster, placard, display, handbill or written material
shall interfere with the commercial purpose of the Wal-Mart store or
contain [or] depict ‘fighting words,’ obscenities, pornography, grossly or
gruesome displays, highly inflammatory slogans likely to provoke
disturbance or racial, or ethnic slurs.” Written materials “must be
submitted to Wal-Mart management prior to its use and if this prior
submission is not done, then such material will not be allowed to be used
at the store.”
Fourth, the “Applicant must disclose in advance the identities of the
participants in the planned expressive activity,” acknowledge that they
have read Wal-Mart's rules and regulations and agree to abide by them, and
disclose whether any of those who plan to conduct expressive activity ever
injured persons or property while engaged in similar expressive activity
elsewhere during the last 12 months.
Fifth, “[i]f the nature or timing of the activity creates a foreseeable
risk of injury [or] damage to persons or property, and that risk, in the
discretion of management, warrants special insurance protection, Applicant
must purchase and carry the necessary insurance coverage as determined by
Wal-Mart management.” However, failure to carry the necessary coverage will
not be cause for denying the applicant “unless foreseeable risk warrants
the need for special insurance,” though “the Applicant must provide
information about any existing general liability insurance policy covering
the Applicant while engaged in the planned expressive activity.”
Lastly, the Wal-Mart rules prohibit an applicant from “us[ing] any effort
to impede, obstruct or interfere with any customer of the store. Further,
no Applicant shall urge or encourage in any manner, customers not to
purchase the goods or services offered by the store.”
The police incident report states that two Ukiah police officers were
dispatched to the scene. When they arrived, the officers “saw about 15
subjects, some of whom were collecting signatures for a petition to
legalize marijuana and others who were holding signs to protest Wal-Mart's
suppression of their right to free speech.” The officers entered the store,
met with Estes and gave him copies of Penal Code sections 602 and 602.1. An
officer explained that section 602 was not applicable because the store was
open to the general public (see Pen.Code, § 602, subd. (n)), and also
explained “the criteria for a violation of [section] 602.1, [subdivision]
(a),” which applies to business establishments open to the public. Estes
replied “that the petitioners were obstructing and intimidating customers
by blocking their paths and using aggressive behavior to obtain
signatures,” which would violate section 602.1.4
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_4>
In support of this claim, Estes provided the officers three written
customer complaints. One of the officers passed this information on by
phone to the chief of police. The officers then returned outside,
identified appellant Bruce Hering as one of the leaders of the protest, and
were told by Hering that the protestors refused to comply with Wal-Mart's
rules. At that point the chief of police arrived on the scene. After he
tried but failed to reach a “mutually agreeable resolution,” Estes “checked
with his legal department” and was “advised to arrest the petitioners if
they refused to leave the premises.” The police told Estes “he would need
to tell each of the petitioners to leave the property and if they refused,
to make a private person's arrest on each, before the police would accept
custody of them.” Estes then asked the protestors to leave and all but
appellants did so. Estes then “verbally plac[ed] each [appellant] under
private person's arrest.” The police accepted custody of appellants and
transported them to the Ukiah Police Department, where they were booked,
cited for trespass and released. No criminal charges were ever filed by the
district attorney.
The three customer complaints are very brief. The first states that after
seeing the protestors, “I almost did not go in. As I was walking up to the
Walmart door, I was confronted by a protestor asking me to sign to legalize
pot. They were very persistent. It desterbed [sic ] me. I did not
appreciate it at all.” The second complaining customer simply states, “I
was approached, by some people outside Walmart with petitions, and was not
happy [with] the way they approach people.” The third customer said she was
“appalled that these people are demonstrating in front of the store. The
legalization of marijuana has nothing to do with our right to shop. The man
who was arrested here last week was equally inappropriate-I feel their
being positioned in front of the store is a violation of my civil rights.”
This complainant closed with the observation that “I have always found the
store to be very family friendly and I like doing business here.”
IV.
Before determining whether the evidence contained in the moving papers
entitles respondents to judgment as a matter of law, we think it
appropriate to describe the manner in which the trial court addressed this
central question.
The trial court stated that resolution of respondents' motion requires the
following two-step analysis: “If the court determines that the Wal-Mart
owners have ‘fully opened the property to the public,’ it must then
determine whether the Wal-Mart ‘time, place and manner’ regulations are
reasonable under the circumstances. The court will first review the
reasonableness of the regulations. If the court determines that the ‘time,
place and manner’ regulations are reasonable, there is no need to determine
whether the Wal-Mart owners ‘fully opened the property to the public.’ ” 5
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_5> In
other words, in the mind of the trial judge, the crucial legal issue was
the reasonableness on their face of Wal-Mart's “time, place and manner”
restrictions.
The court found Wal-Mart's “time, place and manner” rules to be reasonable
not on the basis of any evidence marshaled by respondents in support of
their motion (nor did respondents offer any evidence as to that issue,
other than the rules themselves), but solely on the grounds that (1)
Wal-Mart's rules were the same as or similar to those found reasonable in
Needletrades, supra, 56 Cal.App.4th 996, 65 Cal.Rptr.2d 838, and (2)
appellants' failure to offer evidence or persuasive argument that
Wal-Mart's rules were unreasonable.
The reasonableness of Wal-Mart's “time, place and manner” restrictions and
respondents' refusal to be bound by them do not, however, establish that
appellants committed the crime for which they were placed under citizen's
arrest, which is defined in section 602.1, subdivision (a) of the Penal
Code. As noted (ante, at p. 576, fn. 4), that statute makes it a
misdemeanor to intentionally interfere with a lawful business establishment
open to the public, “by obstructing or intimidating those attempting to
carry on business” at the establishment and refusing to leave the premises
after being requested to do so.
A person who refuses to consider her- or himself bound by “time, place and
manner” restrictions, or who violates one or more particular restriction,
does not necessarily commit the criminal offense defined by Penal Code
section 602.1, subdivision (a). As we have seen, Wal-Mart's “time, place
and manner” rules include one restriction (prohibiting efforts to “impede,
obstruct or interfere with any customer of the store”) that is conterminous
with the prohibition of that statute, as well as other restrictions, such
as the requirement of insurance coverage, that are not. A protestor who
refuses to comply with reasonable “time, place and manner” restrictions
can, in appropriate circumstances, be enjoined by the landowner from
carrying out expressive activities, or even ejected from the premises (see
In re Cox (1970) 3 Cal.3d 205, 217, 90 Cal.Rptr. 24, 474 P.2d 992); but the
refusal to comply does not constitute misdemeanor trespass unless it
consists of intentional interference with the landowner's business through
the obstruction or intimidation of its customers.
Thus, respondents' motion for summary judgment requires them to factually
establish that appellants committed the conduct proscribed by the statute
because that might negate appellants' claims of false arrest and violation
of constitutional rights. Moreover, since the arrests that are central to
both claims were made by Estes, a private person, respondents must also
show that the offense was “committed or attempted in his presence.”
(Pen.Code, § 837, subd. 1.)
Needletrades, supra, 56 Cal.App.4th 996, 65 Cal.Rptr.2d 838, which the
trial court relied upon for the proposition that the facial reasonableness
of the time, place and manner restrictions was dispositive, involved a
situation very different from that presented here. In Needletrades, the
plaintiff union did not carry out any expressive activities on the
defendants' premises, but instead sought a preliminary injunction
restraining the defendants from enforcing the challenged rules, which it
claimed were “ ‘unconstitutional conditions on the right to engage in free
speech.’ ” (Id. at p. 1001, 65 Cal.Rptr.2d 838.) The central issue framed
by the pleadings in Needletrades, therefore, was the reasonableness of the
landowner's rules.6
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_6>
Here, however, the allegations of the pleadings to which the motion for
summary judgment must respond is not the constitutionality of Wal-Mart's
rules but the propriety and purpose of the arrests. The constitutionality
of the rules does not govern the lawfulness of the arrests.
With respect to the alleged false arrest, the factual questions are whether
appellants intentionally interfered with Wal-Mart's business “by
obstructing or intimidating those attempting to carry on business” with
Wal-Mart (Pen.Code, § 602.1, subd. (a).) and did so in the presence of the
private person who arrested them. (Pen.Code, § 837, subd. 1.)
The only evidence respondents provided relating to these questions was the
declaration of Estes, the store manager, and the three written customer
complaints he gave the police, earlier described. Estes does not declare
that he observed appellants, or any of them, obstructing or intimidating
any Wal-Mart customer, but merely that, at the time of the incident, the
store had received “numerous” complaints from customers and employees
“concerning aggressive and harassing conduct by [appellants] and others in
their group.” The customers whose complaints have been made a part of the
record indicated only that they were offended by appellants' conduct. One
complainant stated that she was “not happy [with] the way [the protestors]
approach people,” but no customer indicated that he or she had been
obstructed from carrying on business with Wal-Mart or intimidated, or even
that appellants attempted to prevent them from shopping at Wal-Mart.
In In re Wallace (1970) 3 Cal.3d 289, 90 Cal.Rptr. 176, 475 P.2d 208,
petitioners for habeas corpus had been arrested for allegedly obstructing a
county fair by handing out leaflets protesting the effects on farm workers
of automation of agriculture. After trial, the petitioners were found
guilty of trespass in violation of Penal Code section 602, subdivision (j),
making punishable the entry of lands with the intent of interfering with,
obstructing, or injuring any lawful business of the landowner. The Supreme
Court granted writ relief for the failure of the evidence to establish that
the petitioners' leafletting activity constituted “obstruction” within the
meaning of the statute. The evidence in Wallace showed that the petitioners
stood in a pathway “ ‘stopping patrons and soliciting them,’ ” but that
patrons who wished to inspect the exhibit at which petitioners were
conducting their activity could do so “ ‘by avoiding the area where
[petitioners] were standing.’ ” (Id. at p. 294, 90 Cal.Rptr. 176, 475 P.2d
208.) The court found the evidence insufficient, pointing out that “any
visitor to a fair or other exhibition necessarily occupies a certain area
of ground or floor space wherever he stands, and persons wishing to proceed
past him are manifestly required to ‘avoid’ that area under pain of tort
liability․ [P]etitioners were not in fact arrested because of any physical
‘obstruction’ they may have caused, but simply because they insisted on
their lawful right to distribute leaflets and to display signs.” (Id. at p.
295, 90 Cal.Rptr. 176, 475 P.2d 208.) This appears also to have been the
case here.
Moreover, respondents' meager evidence of obstruction is contradicted by
appellants' evidence that they did not in any way interfere with Wal-Mart's
business by obstructing or intimidating prospective customers. David Drell,
one of the coordinators of appellants' protest, stated in a declaration
that he and other protestors all conducted themselves “peacefully,” and
that none “interfered with customer access to Wal-Mart's premises.” The
police observed the protest immediately upon their arrival at the scene and
again after meeting inside the store with Estes. So far as the record
shows, the police were present during the only time at which Estes
personally observed the protest. The police incident report states that
when officers first arrived at the scene they “saw about 15 subjects, some
of whom were collecting signatures for a petition to legalize marijuana and
others who were holding signs to protest Walmart's suppression of their
right to free speech.” But nowhere in the police report is there any
suggestion that the officers on the scene believed appellants or other
protestors were intentionally interfering with Wal-Mart's business by
obstructing or intimidating its customers or otherwise engaging in any
criminal act, which apparently was the reason the police declined to make
any arrests. The fact that the police took appellants into custody does not
indicate they believed appellants actually committed criminal trespass
because, as earlier noted, peace officers who take custody of a person
arrested by a private person are not required to correctly adjudge whether
the citizen who made the arrest was justified in doing so. (See Kinney,
supra, 8 Cal.App.3d at p. 768, 87 Cal.Rptr. 638.)
Drell's declaration, and the inferences that may be drawn from the incident
report and the refusal of the police to themselves arrest appellants,
conflict with the scant evidence of obstruction and intimidation that
respondents have provided. In short, the facts relative to the material
issue of whether appellants committed the criminal act for which they were
arrested are disputed.
Furthermore, it is not even necessary to determine whether appellants
committed the trespass for which they were arrested if the offenses
(assuming they took place) were not “committed or attempted” in the
presence of the private person who arrested them. “The authority of a
private citizen to make an arrest is more limited than that of a peace
officer. A peace officer may arrest a person without a warrant whenever he
has probable cause to believe that the person has committed a misdemeanor
in his presence. [Citation.] A private citizen, however, may arrest another
for a misdemeanor only when the offense has actually been committed or
attempted in his presence. (Pen.Code, § 837, subd. 1.)” 7
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_7>
(Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 587, 156 Cal.Rptr. 198,
595 P.2d 975, italics added.) The mere fact that the private person has
reasonable cause to believe a misdemeanor offense has been committed or
attempted in his presence is not enough. (People v. Martin (1964) 225
Cal.App.2d 91, 94, 36 Cal.Rptr. 924; Collins v. Owens (1947) 77 Cal.App.2d
713, 718, 176 P.2d 372.) As this division has stated, “presence” is not
mere physical proximity but is determined by whether the offense is
“apparent to the senses” of the person who makes the arrest. (People v.
Sjosten, supra, 262 Cal.App.2d at pp. 543-544, 68 Cal.Rptr. 832.)
Estes's declaration does not assert or even imply that the acts for which
he arrested appellants were committed in his presence. Estes's claim that
he acted in the “good faith [belief] that plaintiffs were in violation of
the law” is based on his discussions with Ukiah police officers and,
inferentially, customer complaints. In effect, Estes claims no more than
that he acted with probable cause. However, as we have seen, a citizen's
arrest for the commission of a misdemeanor cannot be made on that basis.
Furthermore, the refusal of the police to themselves arrest appellants
renders it unreasonable to assume they told Estes that he could properly do
so. Finally, a declarant's self-serving statement that he acted in good
faith carries little weight. (See, e.g., Widener v. Pacific Gas & Electric
Co. (1977) 75 Cal.App.3d 415, 435, 142 Cal.Rptr. 304.)
Insofar as it relates to appellants' cause of action for violations of
constitutional rights, respondents' motion for summary judgment was based
on two theories: first, that Wal-Mart's property was not a public forum and
that appellants therefore had no constitutional right to protest to begin
with; and, second, that even if Wal-Mart's property was a public forum,
appellants' claim failed as a matter of law because Wal-Mart has reasonable
“time, place and manner” restrictions, and appellants' refusal to comply
with those restrictions provides respondents a complete defense.
As to the first theory, the trial court ruled that “[w]hether obligated to
or not, Wal-Mart has made its private property available to members of the
public for the expression of their constitutional rights of free speech,
including petitioning and protesting.” Respondents have not appealed that
ruling and, as it is supported by the evidence and the law, we shall not
disturb it. (See Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899,
153 Cal.Rptr. 854, 592 P.2d 341; In re Lane (1969) 71 Cal.2d 872, 79
Cal.Rptr. 729, 457 P.2d 561.) The second theory, which was adopted by the
trial court, is also unavailing, as we have already explained. Respondents
did not merely attempt to enjoin appellants from petitioning and protesting
on their property because of their unwillingness to comply with the “time,
place and manner” restrictions, but subjected them to arrest for the
commission of a crime. It is true that the ground upon which the arrests
were apparently made-appellants' intentional interference with Wal-Mart's
business by obstructing and intimidating its customers-is proscribed both
by one of Wal-Mart's “time, place and manner” restrictions and by the Penal
Code, but there is clearly a factual dispute as to whether appellants
actually engaged in the proscribed conduct.
Appellants have alleged their cause of action for violation of
constitutional rights as an intentional tort, which places at issue the
purpose for which Estes placed appellants under citizen's arrest.
Ultimately, appellants will have the burden of establishing that
respondents arrested them falsely and for the purpose of suppressing the
exercise of their constitutional rights of free speech. However, in
connection with the motion for summary judgment it is now respondents'
burden to establish, on the basis of undisputed evidence, that the arrests
were made for the lawful purpose of enforcing Penal Code section 602.1,
subdivision (a), and not for the purpose of suppressing protected speech.8
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_8>
Respondents have not sustained that burden. Appellants' failure to comply
with Wal-Mart's “time, place and manner” restrictions provides respondents
a complete defense to this action only if the failure to comply consists of
the obstructive conduct prohibited by section 602.1, subdivision (a), which
is vigorously disputed.
V.
For the foregoing reasons, the judgment of the superior court is reversed.
Appellants are awarded their costs on appeal.
FOOTNOTES
1
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_1>.
The complaint included a third cause of action for unfair business
practices in violation of Business and Professions Code section 17000 et
seq. Inexplicably, however, the trial court's ruling addresses only the
other two causes of action and is entirely silent on the unfair business
practices claim. Because the orders granting summary judgment and
dismissing the complaint pertain to all causes of action, our reversal of
the judgment restores all claims set forth in the complaint.
2
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_2>.
At the time Kinney, supra, 8 Cal.App.3d 761, 87 Cal.Rptr. 638, was decided,
Penal Code section 142 imposed criminal liability on peace officers who
willfully refused to receive, inter alia, persons placed under citizen's
arrest. The statute was amended in 1983 so as to make it inapplicable to
arrests made by private persons. The amendment of the statute does not,
however, suggest that an officer who receives a person arrested by a
private person must first determine the propriety of the arrest.
(Stats.1983, ch. 1092, § 239, p. 4024.)
3
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_3>.
For example, the transcript of appellant Hamburg's deposition is 63 pages
long, but respondents only submitted 12 mostly nonconsecutive pages in
support of their motion.
4
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_4>.
Subdivision (a) of Penal Code section 602.1 states as follows: “Any person
who intentionally interferes with any lawful business or occupation carried
on by the owner or agent of a business establishment open to the public, by
obstructing or intimidating those attempting to carry on business, or their
customers, and who refuses to leave the premises of the business
establishment after being requested to leave by the owner or the owner's
agent, or by a peace officer acting at the request of the owner or owner's
agent, is guilty of a misdemeanor, punishable by imprisonment in a county
jail for up to 90 days, or by a fine of up to four hundred dollars ($400),
or by both that imprisonment and fine.”
5
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_5>.
Though the court initially asserted that it need not determine whether
Wal-Mart opened its property to the public, the ruling later states that
“[w]hether obligated to or not, Wal-Mart has made its private property
available to members of the public for the expression of their
constitutional rights of free speech, including petitioning and protesting.”
6
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_6>.
Moreover, unlike respondents here, who provided no factual evidence in
support of the reasonableness of their rules, the defendants in
Needletrades, supra, 56 Cal.App.4th 996, 65 Cal.Rptr.2d 838, did provide
such evidence. Needletrades involved six shopping malls. With respect to
the only mall at which the plaintiff had applied for and actually been
denied a permit, the store with which the plaintiff had a labor dispute was
located on the seventh floor, where it wished to conduct its protest, but
the areas designated by the rules for expressive activities were on the
sixth and eighth floors. The defendants offered evidence that the fire
department prohibited the designation of an area directly in front of the
store of interest to the plaintiff union, and that the different locations
the union objected to “were selected to comply with fire regulations.” (Id.
at p. 1003, 65 Cal.Rptr.2d 838.) Similarly, the insurance requirement of
the rules at issue in Needletrades was deemed reasonable, in part, on the
basis of a declaration of the assistant general manager of the mall at
which the plaintiff sought and was denied a permit that not only explained
the justification of the discretionary insurance requirement but stated
that the declarant had “never requested special insurance from any
petitioner ” (id. at p. 1006, 65 Cal.Rptr.2d 838), and he would not request
it from the plaintiff union. (Ibid.)
7
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_7>.
The reason private persons are held to a higher standard than peace
officers is that a citizen “ ‘has no public responsibility; there is less
necessity for such arrests, and more occasion to deter private citizens
from taking the law into their own hands.’ ” (Roth v. Golden Nugget
Casino/Hotel, Inc. (D.N.J.1983) 576 F.Supp. 262, 267, quoting Prosser, Law
of Torts (1971) § 17, p. 100.) The need for a citizen to take the law into
his own hands is most questionable where, as here, law enforcement officers
(including the chief of police) are well represented on the scene.
8
<http://caselaw.findlaw.com/ca-court-of-appeal/1258544.html#footnote_ref_8>.
We do not mean to suggest that in these circumstances appellants may posit
a tort cause of action for damages upon a violation of California
Constitution, article I, sections 2 and 3 (see Degrassi v. Cook (2002) 29
Cal.4th 333, 127 Cal.Rptr.2d 508, 58 P.3d 360; Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 127 Cal.Rptr.2d 482, 58
P.3d 339), a question the parties have not raised and which we have not
addressed.
KLINE, P.J.
We concur: HAERLE and LAMBDEN, JJ.
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HAMBURG v. WAL MART STORES INC
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HAMBURG v. WAL MART STORES INC as heard in CA Court of Appeal
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  On Saturday, June 14, 2014 6:54 PM, Beth Brenneman <
storyteller2069 at gmail.com> wrote:



*Today at Safeway.  *

*Patricia Norris had said no one would be at Safeway Willits between 1 and
3.  Debbie and i decided to drive 1 hr. 20 min. to Willits and get
signatures...and then go shopping at Safeway after 3 PM.  We set up a tiny
tv table with info at a pillar to the  south side of the propane gas
machines.  There was already a table set up at the pillar right in front of
the northern entrance/exit of Safeway.  They were the American Legion and
they were accepting donations from customers going in and out of Safeway.
Within 20 minutes of our being there, the manager and the 2nd asst. manager
came out to tell us to leave.  I asked if they were familiar with the
Pruneyard vs. Robins Supreme Court decision and they said they would bring
me a letter which stated we needed to leave.  The manager did, i read it
and mentioned that the A. L. were taking donations which the letter
forbade.  I said i disagreed with the letter and what was the next step.
The manager said that he would get Safeway's attorney on his cell phone and
the attorney would explain why we had to leave.  This took more than a 1/2
hour to get the attorney; the attorney cited 2 cases that supported
Safeway's position.  The attorney asked me if i was on Safeway's sidewalk
or a public sidewalk.  I said i did not know whose it was; the attorney
offered to google map it with the manager and they would tell me whose
property i was on.  In the mean time, the 2nd asst manager was moving about
taking pictures, etc.  We waited until after 3 pm and no manager came to
show us google earth and their property.  We photographed the A. L. still
there and smoking directly in front of the door.  About 3:15 we decided to
leave since we are both sensitive to cigarette smoke.  I went in and found
the manager and asked what happened to the google map that the lawyer had
promised.  The manager said he didn't need it; it was Safeway's property!
I told him that we were leaving because his American Legion guys were
smoking right next to the door and we could not be around cigarette smoke.
He replied sarcastically, "Have a nice day." *


*It was 2 years ago that we WERE allowed to get signatures for Prop 37
(labeling GMOs) in front of Willits Safeway.  Now look!*
*Now i am partly writing this to share but also to document it.  I am open
to comments about how to precede.  This said, i know very well that our
rights as citizens are being taken away faster than 10 vultures on a deer
carcass.  If i (or we) do nothing, we are giving up more and more.  Just
look at the good Germans in Hitler Germany:
http://en.wikipedia.org/wiki/First_they_came_.
<http://en.wikipedia.org/wiki/First_they_came_.>..*

*I think something must be done.  So, any suggestions...*
Beth B
"The trouble is that once you see it, you can't unsee it. And once you've
seen it, keeping quiet, saying nothing, becomes as political an act as
speaking out. There's no innocence. Either way, you're accountable.” Arundhati
Roy <http://www.goodreads.com/author/show/6134.Arundhati_Roy>





-- 
"The trouble is that once you see it, you can't unsee it. And once you've
seen it, keeping quiet, saying nothing, becomes as political an act as
speaking out. There's no innocence. Either way, you're accountable.” Arundhati
Roy <http://www.goodreads.com/author/show/6134.Arundhati_Roy>
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