The opinion of the court was delivered by: Armstrong, District Judge.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion to
Dismiss [# 10]. In an order dated May 8, 2000, the Court
converted defendant's motion to a Motion for Summary Judgment.
The parties filed supplemental briefs and accompanying
declarations. Defendant filed a reply brief including Evidentiary
Objections to Declaration of John P. Slevin in Support of
Plaintiffs' Opposition to Defendant's Motion for Summary
Judgment. Defendants also have filed two requests for Judicial
Notice. Having read and considered the papers submitted by the
parties and being fully informed, the Court hereby GRANTS
defendant's Motion for Summary Judgment, SUSTAINS in part and
OVERRULES in part defendant's objections to evidence, and GRANTS
defendant's Request for Judicial Notice.
On November 6, 1998, plaintiffs, Lionel Weisberg and John
Slevin, in an effort to register voters, engaged in petitioning
activities immediately outside the Main Exit to Home Depot's
store.*fn1 (Cmplt. at ¶ 7; Norris Decl. at ¶ 15). Prior to
commencing their activities and pursuant to Home Depot's
requirements, plaintiffs allegedly submitted an application and
received instructions to confine their activities to a "remote
area at least 150 yards from the closest entrance or exit of the
Home Depot."*fn2 (Cmplt. at ¶ 7). They received a warning that
they would be placed under citizen's arrest if they failed to
confine their activities to the appropriate area. (Id.).
Despite the warning, plaintiffs solicited signatures
immediately outside the store's main exit. (Norris Decl. at ¶
15). Pittsburg Home Depot store manager Kyle Norris asked
plaintiffs to confine their activities to an area not immediately
in front of the Entrance or any of the exits.*fn3 When
plaintiffs refused to confine their activities accordingly, Home
Depot placed them under citizen's arrest. Pittsburg police
officers subsequently arrived and handcuffed plaintiffs, ushered
them into the back of a police car, and transported them to the
County Jail, from where they were released after being
fingerprinted, photographed, and cited. (Cmplt. at ¶ 7).
B. The Physical Structure
The Pittsburg Home Depot is housed within a single building
known as the North Park Plaza ("the Plaza"), which contains
approximately 367,000 square feet. The Home Depot occupies
approximately 100,300 of these square feet. The only other tenant
in the plaza at the time of the incident was Staples. The Plaza
does not have any interior common spaces. (Norris Decl. at ¶ 5).
An automobile only may gain access to the parking lot by way of
California Avenue N, a frontage road that encircles the Plaza.
(Id. at ¶ 8).
The Pittsburg Home Depot sells a wide variety of home
improvement and gardening merchandise and construction supplies.
(Norris Decl. at ¶ 3). It averages 2,800 customer transactions
per day. (Id.). Neither the store nor the Plaza contain a
theater or other entertainment-oriented facility. (Id. at ¶ 4
and 7). Despite its name, the Plaza is essentially a building
divided into four parts and surrounded by a parking lot.
C. The Home Depot's Perimeter
The Home Depot includes only one entrance way, which is located
on the South side of the store, along with three exits. A paved
area measuring approximately 24 feet from the front of the
building to the edge of the parking lot's drive isle runs along
the front of the store. This 24 foot wide strip accommodates all
pedestrian traffic entering and leaving the store, merchandise
displays, such as plants, patio supplies, barbecues, and
jacuzzis, a cart return area, and beverage machines. A hot dog
stand is maintained on the portion of the strip between the
Entrance and Main Exit. (Id. at ¶¶ 9-10 and see Slevin Decl.
at ¶ 4). The hot dog vendor sells hotdogs, sandwiches, ice cream,
drinks and other foods. (Slevin Decl. at ¶ 4). Six to twelve lawn
chairs are available for sitting in the vicinity of the food
carts and there does not appear any restriction on who
may gather at these chairs. (Slevin Decl. at ¶ 4, Norris Decl. at
¶ 11, Norris Supp. Decl. at ¶ 2). Mr. Slevin has observed
individuals patronizing the vendors without entering the store.
(Slevin Decl. at ¶ 7).
Dana Butcher Associates, whose Dana Butcher serves as the
property manager of the Plaza, has posted a sign between the Home
Depot garden center and the vacant store immediately next to the
Home Depot recognizing it as a "PUBLIC FORUM AREA" for
"SOLICITING, PETITIONING AND/OR DISTRIBUTING LITERATURE."
(Butcher Decl. at ¶¶ 1-2 and see Slevin Decl. at Ex. 13). The
sign notes that the presence of petitioners "is permitted by
California Court Decisions" and directs prospective petitioners
to contact the Investment Property Management company for an
application to petition on the property. (Id.).
Plaintiffs filed the instant complaint in the Superior Court
for the State of California in and for the County of Contra Costa
on November 4, 1999. Defendant removed the case to federal Court
on March 1, 2000, based on complete diversity of citizenship.
Plaintiffs' complaint includes four causes of action: (1)
injunctive relief against future violations of the California
Constitution; (2) false arrest and imprisonment; (3) denial of
constitutional rights; and (4) intentional infliction of
emotional distress. The last three of these causes of action all
relate to the events on November 6, 1998. The first cause of
action seeks an injunction enjoining Home Depot from enforcing
its application procedure.
Defendant moved to dismiss plaintiffs' claims as a matter of
law because California law does not authorize plaintiffs to
petition on Home Depot's private property. In an order dated May
8, 2000, this Court converted the motion into a motion for
summary judgment and ordered the parties to submit briefs no
later than June 30, 1999. The parties were instructed to include
factual support for their respective positions.
Under Federal Rule of Civil Procedure 56, summary judgment is
warranted against a party who "fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for
summary judgment bears the initial burden of demonstrating the
"absence of a genuine issue of material fact." Id. at 323, 106
S.Ct. 2548. If the movant meets this burden, the nonmoving party
must come forward with specific facts demonstrating a genuine
factual issue for trial. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). "[T]here is no issue for trial unless there
is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. Objections to Evidence
Defendant has raised a number of objections to the declaration
of John Slevin. The Court rules on these ...