APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, Judge. Reversed with directions. (Super. Ct. No. SCV20641).
The opinion of the court was delivered by: Cantil-sakauye, J.
CERTIFIED FOR PUBLICATION
In this case we conclude the rules of a large regional shopping mall that prohibit peaceful, consensual, spontaneous conversations between strangers in common areas of the mall about topics that are not related to the activities of the mall, its tenants or the noncommercial sponsored activities of the mall or its tenants are content-based rules that do not withstand a strict scrutiny analysis. The rules are unconstitutional on their face under article I, section 2 of the California Constitution, the California constitutional provision which guarantees the right to free speech. (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850 (Fashion Valley); Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), affirmed sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [64 L.Ed.2d 741].) As the trial court granted the motion for summary adjudication of defendants Westfield LLC, Westfield America, Inc., Urban Roseville LLC, and Roseville Shoppingtown, LLC (together Westfield) based on an erroneous finding that Westfield's rules were reasonable time, place, and manner restrictions that were content neutral, we shall reverse the judgment in favor of defendants and direct the trial court to vacate its order granting summary adjudication and enter a new order denying Westfield's motion. We also conclude the trial court erred in striking plaintiff's prayer for attorney fees and direct the court to allow plaintiff to seek fees as may be appropriate at the conclusion of the case.
Hoping for opportunities to share his Christian faith, Matthew Snatchko, a youth pastor, often went to a large regional shopping mall--the Galleria in Roseville, owned, operated and managed by Westfield (hereafter the Galleria or the mall).*fn1 While he was in the common area of the mall one evening, Snatchko approached three young women in their late teens, asked them if they were willing to talk with him, and upon receiving their consent, engaged them in conversation, which included with their permission his sharing with them principles of his faith. He did not raise his voice or otherwise create a scene. He did not distribute any literature. He did not solicit money or other contributions of any kind. He did not ask them to join his church. He did not block mall patrons.
Nevertheless, a nearby store employee called the mall's security office and requested they investigate Snatchko's actions. A security officer responded and observed what he believed to be nervous behavior by the young women. Snatchko did not observe any expression or conduct by the women indicating they were nervous or that they did not want to continue the conversation. It appeared to Snatchko that the security officer stopped and listened to his conversation with the women.
The security officer approached and asked Snatchko to stop what he was doing or leave the mall. When Snatchko refused, the security officer called for backup. A senior security officer responded and instructed Snatchko to leave. As Snatchko continued to refuse, the security officers forcibly placed Snatchko under citizen's arrest, handcuffed him and escorted him to the security office where they turned him over to Roseville police.
Snatchko was booked and released by the police. When he appeared at arraignment, however, all charges were dismissed. The Placer County District Attorney later stipulated Snatchko was factually innocent of the charges and the Placer County Superior Court issued an order of factual innocence.
Snatchko filed this action against Westfield, Professional Security Consultants (PSC)--the private security company employed by Westfield, and Richard Flores--the senior security officer who arrested and handcuffed him (together defendants). Snatchko's first amended complaint alleged causes of action for false imprisonment, assault, battery, intentional infliction of emotional distress, negligence, malicious prosecution, violation of civil rights under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), injunctive relief, and declaratory relief.
In relevant part, Snatchko's first amended complaint alleged defendants made the mall "inaccessible to persons who, as part of their religious conduct and expression exercise their rights of free speech and faith by conversationally speaking with other persons within the Galleria on issues of faith." In his cause of action for injunctive relief, Snatchko alleged "no constitutionally sufficient interest justifies defendants' discrimination against plaintiff based on the content or subject matter of his conversational speech. In fact, no defendant expressed to plaintiff any explanation for denying him the right to speak conversationally in the Galleria on a subject matter of his choice. Defendants' decision to refuse plaintiff's request for use of the Galleria was wholly arbitrary and capricious and based solely on objection to the subject matter of plaintiff's conversation." In his cause of action for declaratory relief, Snatchko alleged an actual controversy "in that plaintiff contends that defendants' rules, policies, and practices concerning the use of the Galleria for speech activities, as described herein, violate plaintiff's rights of freedom of speech . . . under the California Constitution[.]" Snatchko sought "a declaration as to the validity of defendants' rules, policies and practices, as described in this Complaint, both on their face and as applied to plaintiff's free speech activities."
Westfield moved for summary adjudication of Snatchko's claims for intentional infliction of emotional distress, negligence, violation of his civil rights, injunctive, and declaratory relief. Westfield contended such claims failed because they were premised on the denial of Snatchko's constitutional rights when in fact Westfield lawfully adopted and enforced reasonable time, place, and manner rules governing noncommercial expressive activity at its privately-owned shopping mall.
The trial court granted Westfield's motion, finding, "as a matter of law, the regulations imposed by [Westfield] do not constitute an impermissible restriction on [Snatchko's] rights under the California Constitution. Rather, the regulations are merely reasonable time, place, and manner restrictions that are content-neutral." Snatchko and defendants subsequently stipulated to entry of judgment against Snatchko on all causes of action to facilitate appeal of the trial court's decision granting summary adjudication. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 401-402.) This appeal followed.*fn2
The standard of review for a trial court's decision to grant summary adjudication is well established. "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).) A moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (o); see Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 160.)
We independently review an order granting summary adjudication. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 87.) In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) "[W]e strictly construe the moving party's evidence and liberally construe the opposing party's evidence." (Sababin v. Superior Court, supra, at p. 88; accord Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
We keep in mind that the pleadings frame the issues to be resolved. "'The purpose of a summary judgment [adjudication] proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] 'The function of the pleadings in a motion for summary judgment [adjudication] is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.]" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; see Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.) A plaintiff may not avoid a summary judgment by producing evidence to support claims outside the issues framed by the pleadings. (City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal.App.4th 633, 639.)
Westfield has adopted rules for public use of the common areas of the Galleria (the Rules). In this section we will simply summarize the relevant portions of the Rules while leaving detailed discussion of the meaning of the Rules to a subsequent section.*fn3
The Rules start with an introduction that notes the private ownership status of the mall and expressly disclaim that any enforcement of the Rules or activity pursuant to the Rules "shall constitute or be deemed to constitute a dedication of the [mall] to public uses. The Rules do not constitute an acquiescence or a waiver of the private property rights of the owners of the [mall]."
The introduction to the Rules then states, "[t]hese Rules are not intended to apply to activity sponsored by the [mall] and/or an enterprise(s) engaged in business at the [mall]." "These Rules also are not intended to apply to private conversations between and among persons previously acquainted with one another."
With these exceptions, "[e]very individual, organization or entity desiring to use the [mall] common areas other than to patronize an enterprise(s) engaged in business at the [mall], must apply to the [mall] Security Office for permission to use [the mall] property." (Rules, § III.A.) Specifically, "[a]ll persons seeking to use the [mall] common areas for non-commercial expressive activity; other than activity sponsored by the [mall] and/or an enterprise engaged in business at the [mall], must submit an application, a copy of which is attached hereto." (Rules, Introduction.)*fn4
"Any non-commercial expressive activity not sponsored by the [mall] and/or an enterprise(s) engaged in business at the [mall], nor specifically permitted under these Rules, is expressly prohibited on the [mall] property." (Rules, Introduction, italics added.)
So what activity is permitted under the Rules?
The Rules define "Approved Activity" as follows: "'Approved Activity' is Permissible Activity . . . that is approved pursuant to a properly submitted application . . . . [¶] Activities which will not be approved include: [¶] 1. Performances; [¶] 2. Demonstrations; [¶] 3. Solicitation and/or acceptance of money; [¶] 4. Sales of products or services; [¶] 5. Distribution of samples of products; [¶] 6. Surveys which request more information than the person's name, address and telephone number; and [¶] 7. Invitations, passes or coupons giving the recipient anything that is otherwise available to be purchased." (Rules, § II.C, underscoring in original, italics added.)
"Permissible Activity" is in turn defined as "Non-Commercial Expressive Activity that is anticipated to result in individual or one-on-one communications as opposed to communications intended for a group of people simultaneously." (Rules, § II.B.)
The Rules define "Non-Commercial Expressive Activity" as "expressive activity that has a political, religious or other non-commercial purpose, such as the request for signatures on petitions, the registration of voters and the dissemination of noncommercial leaflets or flyers. Non-Commercial Expressive Activity includes the display of an article of clothing or adornment, which is used to communicate: (1) by a person in the Common Areas of the [mall] for a purpose other than to patronize an enterprise(s) engaged in business at the [mall] or to engage in activities sponsored by the Center; or (2) by a person in the Common Areas of the Center who is approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests of the [mall] and/or an enterprise(s) engaged in business at the [mall.]" (Rules, § II.A.)
The Rules require applications for permission to engage in noncommercial expressive activity to be submitted to the mall's security office four days in advance of the proposed noncommercial expressive activity.*fn5 (Rules, § III.A.) Mall management will review the application to determine if the proposed activity is permissible.*fn6 (Rules, § III.E.) If the activity is permissible, the applicant will be assigned on a "first-come, first-selected" basis an approximately 64 square foot space in one of three specifically identified designated areas within the mall.*fn7 (Rules, §§ II, G; III, E; VI.) "Permissible Activity may be conducted only in the assigned Designated Area . . . . Permissible Activities are not allowed at any other location, including driveways and parking lots." (Rules, § VI.)
III. Westfield's Rules Violate California's Constitutional Right To Free Speech
Article I, section 2, of the California Constitution (hereafter article I, section 2) provides, in pertinent part, that "[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right." (Cal. Const., art. I, § 2, subd. (a).) This provision is "broader and more protective than the free speech clause of the First Amendment." (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366 (Alliance).)
In the landmark case of Pruneyard, supra, 23 Cal.3d 899, the California Supreme Court concluded article I, section 2 protects the right of free speech, reasonably exercised, in a privately-owned shopping mall, even though the First Amendment to the federal Constitution does not guarantee that right.*fn8 (Pruneyard, supra, at p. 910.) The California Supreme Court reaffirmed this holding in Fashion Valley, supra, 42 Cal.4th at pages 869-870.
The California Supreme Court has recognized this right of free speech does not mean "those who wish to disseminate ideas have free rein." (Pruneyard, supra, 23 Cal.3d at p. 910.) Free speech activity may be subject to reasonable regulations that "prohibit conduct 'calculated to disrupt normal business operations' or that would result in 'obstruction of or undue interference with normal business operations.'" (Fashion Valley, supra, 42 Cal.4th at p. 864; quoting Diamond v. Bland (1970) 3 Cal.3d 653, 665-666 (Diamond I); accord, Pruneyard, supra, at pp. 910-911.)
The level of scrutiny that we apply to determine whether regulations adopted by a shopping mall are "reasonable," "depends upon whether [the rule] is a content-neutral regulation of the time, place, or manner of speech or restricts speech based upon its content. A content-neutral regulation of the time, place, or manner of speech is subjected to intermediate scrutiny to determine if it is '(i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication. [Citation.]' [Citation.] A content-based restriction is subjected to strict scrutiny." (Fashion Valley, supra, 42 Cal.4th at p. 865; accord, International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (2010) 48 Cal.4th 446.) To survive strict scrutiny, "a content-based rule ...