protected the petitioner's efforts to distribute handbills to
customers entering a large, stand-alone, "super-market-type"
grocery store. Lane, 71 Cal.2d at 873, 79 Cal.Rptr. 729,
457 P.2d 561. The handbills distributed by the petitioner, who had
positioned himself on the store's sidewalk just outside one of
its doorway entrances, urged customers not to patronize the store
since it advertised in newspapers published by an individual with
whom petitioner's union was immersed in a labor dispute. Id. In
holding that this particular part of the sidewalk was a "public
area in which members of the public may exercise First Amendment
rights," the Court noted that holding otherwise effectively would
permit the store to immunize itself from "on-the-spot public
criticism." Id. at 876, 79 Cal.Rptr. 729, 457 P.2d 561.
The court in Calkins held that a large, supermarket grocery
outlet did not constitute a "modest retail establishment."
Calkins, 187 F.3d at 1092. The factors pushing in favor of
petitioning rights included the store's location on a prominent
state highway, the absence of a requirement that customers make
advance appointments to shop, the fact that the use of the
property was not limited to specific clientele nor specific
purposes, and the store's accommodation of browsers who did not
ultimately purchase any items. Id.
The instant case involves a large store — occupying 100,300
square feet — within a larger building/shopping center. Unlike
the stores in Trader Joe's, Lane, and Calkins, the Home Depot
is not a stand-alone store. On the other hand, unlike in
Pruneyard, the defendant here is an individual store within the
shopping center rather than the shopping center itself*fn7 and
the petitioning activities occurred adjacent to the store and not
in a central courtyard.
As a preliminary point, defendant cannot reasonably argue that
the mere fact that a store is part of a shopping center means
that the store itself cannot be subject to suit for alleged
violations of free speech and petitioning activities in areas
associated with the store. If a stand-alone store is potentially
liable for free speech violations, as both Lane (regardless of
the scope of its continuing viability) and Calkins suggest,
then an individual store within a shopping center retains similar
exposure. Defendant's strongest authority, Trader Joe's,
carefully left open the possibility that a store that is not a
public forum by itself may constitute a public forum due to its
proximity to other stores by observing that "because [Trader
Joe's] is a stand-alone structure, there can be no contention
that its relationship to other establishments transforms it into
a public forum." Trader Joe's, 73 Cal.App.4th at 433,
86 Cal.Rptr.2d 442 (emphasis added).
Plaintiffs rely principally on Lane and Calkins, but the
instant facts are significantly distinct from the facts involved
in those cases. Lane concerned union petitioning activities
whose content was directly aimed at the store being picketed.
Numerous California cases have emphasized both the union nature
of the activities in Lane and the connection between the
of the speech and the store as factors particularly weighing
against the property owner's interest and distinguishing Lane
from other cases. Trader Joe's, 73 Cal.App.4th at 435,
86 Cal.Rptr.2d 442; Allred v. Shawley, 232 Cal.App.3d 1489, 1504,
284 Cal.Rptr. 140 (Cal.Ct.App. 1991); see Busch v. Ralphs
Grocery Co., Super. Ct. No. SC051874, at 2 n. 1 (Cal.Ct.App.
June 15, 2000); Sears, Roebuck, & Co. v. San Diego County
District Council of Carpenters, 25 Cal.3d 317, 328,
158 Cal.Rptr. 370, 599 P.2d 676 (1979). Calkins also involved union
picketing and handbilling.*fn8 Because the instant case does not
involve union activities nor does it entail a message
particularly related to Home Depot, plaintiffs' two primary
authorities are distinguishable.
On the other hand, the instant facts also are distinguishable
from those at issue in Trader Joe's, defendant's strongest
authority. Despite defendant's contentions otherwise, the
Pittsburg Home Depot, which is almost ten times the size of the
store in Trader Joe's, is not a per se single use store. In
addition to selling construction, home improvement items, and
garden supplies, it permits a vendor to sell hot dogs and other
food items in front of the store and provides a sitting area of
approximately 6-12 chairs. (See Slevin Decl. at Exs. 5 and 6).
It thus implicitly invites individuals to purchase food from the
vendor and to sit and eat on the premises. In addition, a sign
located between the Home Depot Garden Center and the vacant store
immediately next to the Home Depot proclaims the area as a
"PUBLIC FORUM AREA" where petitioning can occur under certain
Despite these facts distinguishing the instant case from
Trader Joe's, no triable issue exists regarding whether the
area in front of the Main Exit to the Pittsburg Home Depot is a
public forum. The hot dog stand and modest sitting area hardly
transform the Home Depot into the hub of activity envisioned in
Pruneyard, which involved a 21 acres shopping center housing
some 65 shops, 10 restaurants, and a cinema. In light of the
almost 3,000 customers that engage in transactions each day at
the Pittsburg Home Depot, the six to twelve person sitting area
is, based on the evidence before the Court, a sidelight to Home
Depot's operation. Neither the Home Depot nor the shopping center
in which it sits contain any entertainment areas, such as a
cinema, nor any common plazas or courtyards other than the hot
dog area. The size of the shopping center in Pruneyard dwarfs
that of the "shopping center" involved here.
The sign designating a portion of the frontage area of Home
Depot as a public forum area would not raise a triable issue even
if Home Depot had erected it.*fn9
Plaintiffs have offered no evidence as to the sign's location
other than that the sign(s) is on Home Depot's property.*fn10
(Slevin Decl. at ¶ 10). Nevertheless, Slevin concludes that the
sign has designated "the area in front of [the] store [a]s a
public forum." (Id.). This conclusion regarding the entire
front of the store is unwarranted in light of the undisputed
evidence that the sign is positioned between the Home Depot
Garden Center and the vacant store immediately next to the Home
Depot. By its terms, the sign limits the public forum designation
to "[t]his area." Plaintiffs have provided no evidence that
"[t]his area" encompasses the area where they engaged in their
Home Depot's implementation of an application procedure for
individuals desiring to engage in noncommercial speech activity
does not raise a triable issue. The mere fact that a store
implements time, place, and manner regulations does not transform
the area into a public forum. See Lushbaugh v. Home Depot, EC
026533, at 3 (Super.Ct.Ca. May 15, 2000). The store has not
thereby dedicated its private property to public purposes. Id.
See generally Busch, Super.Ct. No. SC051874, at 8 ("While the
fact that some people are allowed to speak at the Ralphs store is
a factor to consider in determining the nature of Ralphs's
invitation to the public, it does not by itself create a
quasi-public forum."). Home Depot's application explicitly states
that its application rules do not result in the dedication of its
property to public uses or the waiver of its private property
In sum, even after construing the facts presented in the light
most favorable to the plaintiffs, no dispute of material fact
exists. The area in front of the Pittsburg Home Depot's Main Exit
is not a public forum. The narrow scope of Home Depot's
invitation to the public coupled with the absence of any
significant area near the store's entrances or exits where people
congregate for noncommercial purposes, eat, or are entertained
renders any analogy to the shopping center in Pruneyard
unavailing. Because no evidence exists that the substance of
petitioner's petitioning activities particularly implicated Home
Depot or involved union issues, Lane and Calkins do not
indicate a different result. The court GRANTS defendant's Motion
for Summary Judgment as to the public forum issue and,
particularly, the third cause of action.
C. Rule 56(f)
In their supplemental opposition, plaintiffs move the Court for
leave to obtain discovery if the Court is inclined to grant
defendant's motion. Plaintiffs specifically contend discovery
will permit them to gather information on "the square footage of
the enterprise, the number of transactions it processes monthly,
the complete list of services it provides, the number and nature
of the applications submitted for permission to petition in front
of its store, and the uses to which the area claimed to be a
public forum has traditionally been put."
Federal Rule of Civil Procedure 56(f) permits the Court to
"refuse" an application for summary judgment or permit a
continuance to permit discovery to be had when it appears "from
the affidavits of a party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential to
justify the party's opposition." This rule requires affidavits
setting forth clearly the particular facts sought. State of
California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The
party must make clear how the information sought would preclude
summary judgment. Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.
1986). The failure to comply with Rule 56(f) is a proper basis
for denying the discovery request and proceeding to summary
judgment. Brae Trans., Inc. v. Coopers & Lybrand,
790 F.2d 1439, 1443 (9th Cir. 1986).
References in a memorandum to a need for discovery do not
constitute a motion under Rule 56(f). Brae, 790 F.2d at 1443.
In this case, plaintiffs have failed to bring a proper Rule 56(f)
motion. They have not submitted any affidavit even addressing the
need for discovery. Instead, they offer in their supplemental
memorandum a one paragraph reference to the general type of facts
they would seek in discovery without offering any explanation of
how any of the facts sought will impact the applicable balancing
test. Plaintiffs had approximately two months prior to the
hearing date on the summary judgment motion to bring a 56(f)
motion. Their failure to do so is incomprehensible.
D. Other Causes of Action
1. First Cause of Action
Plaintiffs' first cause of action seeks injunctive relief
enjoining defendant from enforcing Home Depot's application
procedure. Even if the sidewalk adjoining the entrance way into
the Home Depot store constituted a public forum, Pruneyard
recognized that those who wish to disseminate ideas in such a
forum do not have "free rein." Pruneyard, 23 Cal.3d at 910,
153 Cal.Rptr. 854, 592 P.2d 341. Time, place, and manner
restrictions still are permissible. See id. at 909, 910,
153 Cal.Rptr. 854, 592 P.2d 341. In order to survive California
constitutional scrutiny, such restrictions must be (1) narrowly
tailored, (2) serve a significant interest, and (3) leave ample
alternative avenues of communication. See Los Angeles Alliance
for Survival v. City of Los Angeles, 22 Cal.4th 352, 364,
93 Cal.Rptr.2d 1, 993 P.2d 334 (2000).
Plaintiffs' first cause of action alleges defendant has imposed
an "unconstitutional restraint." Thus, its success hinges on the
constitutional assertion in plaintiffs' third cause of action. In
other words, plaintiffs' first cause of action will prevail only
if (1) plaintiffs possessed petitioning rights on the area near
Home Depot's Main Exit (the Pruneyard issue) and (2) Home
Depot's time, place, and manner regulations were
unconstitutional. Because the area in front of Home Depot's Main
Exit was not a public forum, plaintiffs' suggestion of an
"unconstitutional restraint" must fail. Plaintiff has not
requested leave to amend. Summary adjudication of the first cause
of action is proper.
2. Second and Fourth Causes of Action
Despite the Court's explicit order that the parties address
whether the second and fourth causes of action must fail if the
third cause of action is dismissed, plaintiffs did not address
this issue in their supplemental briefing. They implicitly have
conceded this point. Defendant persuasively shows that, based on
the facts alleged in the complaint, elements in the second (false
arrest) and fourth (intentional infliction of emotional distress)
causes of action hinge on the arrest of plaintiffs being
unlawful.*fn11 Because plaintiff has not
proposed any amendment that would save these causes of action,
summary adjudication is proper as to these claims.
E. Judicial Notice
The Court may take judicial notice of matters of the public
record. See Mack v. South Bay Beer Distributors, Inc.,
798 F.2d 1279 (9th Cir. 1986). The Court GRANTS defendant's request that
the Court take judicial notice of Busch v. Ralphs, Los Angeles
County Superior Court Case No. SC 05817; Waremart v. Discovery
Petition Mgmt. Co., Butte County Superior Court Case No. 12243;
Young v. Raley's, Yolo County Superior Court Case No.
V97-000076; Lushbaugh v. Home Depot, EC 026533, 2 (Super.Ct.Ca.
May 15, 2000); Busch v. Ralphs Grocery Co., Super. Ct. No.
SC051874 (Cal.Ct.App. June 15, 2000); and Albertson's, Inc. v.
James Young, Nevada County Superior Court Case No. 60716.
Based on its finding that no dispute of material fact exists,
the Court hereby GRANTS defendant's Motion for Summary Judgment
as to all causes of action.
IT IS SO ORDERED.