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July 12, 2000


The opinion of the court was delivered by: Armstrong, District Judge.


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.


A. The Incident

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 Pittsburg, California 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.).

D. The Instant Action

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 ...

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