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Best Friends Animal Society v. Macerich Westside Pavilion Property LLC

March 2, 2011


(Los Angeles County Super. Ct. No. SC104061) APPEAL from an order of the Superior Court of Los Angeles County. Linda K. Lefkowitz, Judge. Reversed.

The opinion of the court was delivered by: J. Ashmann-gerst


The question presented is whether article I, section 2 of the California Constitution permits a privately owned shopping mall to enforce rules that give preferential treatment to labor speech and thereby discriminate against other types of speech. The answer is no. We therefore reverse the trial court's order denying the motion for preliminary injunction filed by Best Friends Animal Society (Best Friends) against Macerich Westside Pavilion Property LLC (Macerich), the owner of the Westside Pavilion Shopping Center (Westside Pavilion).


Westside Pavilion is a large shopping mall comprised of an original building and a new building. Macerich regulates the use of the common areas of Westside Pavilion with rules (WP Rules).

In particular, the WP Rules apply to noncommercial expressive activity such as political and religious speech, the request for signatures on petitions, the registration of voters and the dissemination of noncommercial leaflets or flyers. In addition, they apply to qualified labor activity, which is defined to mean "activity authorized by the National Labor Relations Act [(NLRA)] or applicable state labor laws that is conducted by: 1) an employee of a person or business engaged in work at [Westside Pavilion] who has a labor dispute with his or her employers; 2) a labor organization representing an employee of a person or business engaged in work at [Westside Pavilion] who has a labor dispute with his/her employer; 3) an individual attempting to organize employees of persons or businesses engaged in work at [Westside Pavilion]; and/or 4) a labor organization or a representative of a labor organization attempting to engage in picketing and/or informational leafleting (area standards and/or consumer activity) at [Westside Pavilion]."

The two types of expressive activity are regulated differently. Noncommercial expressive activity is limited to areas designated by the WP Rules; subject to Macerich's discretion, noncommercial expressive activity is not permitted on blackout days;*fn1 and noncommercial expressive activity must cease when the store nearest to the designated area is closed to the public. In contrast, qualified labor activity is permitted in either a designated area or an area selected by Macerich that is proximately located to the targeted employer or business; the blackout days do not apply to qualified labor activity of people employed at Westside Pavilion; and qualified labor activity related to the fixing of the terms or conditions of employment is permitted during the hours the targeted person or business is engaged in work at Westside Pavilion.

In October 2008, a division of Best Friends known as Puppies Aren't Products: Los Angeles (PAPLA)*fn2 wrote to Macerich requesting permission to protest in front of Barkworks Pup & Stuff (Barkworks) every Saturday and Sunday. Barkworks is located near the entrance to Nordstrom on the third floor of the original building. According to Best Friends, Barkworks is guilty of selling puppies bred in inhumane "puppy mills."

Citing to the WP Rules, Macerich said that PAPLA would have to limit its activity to one of two designated areas, i.e., an area on the first floor of the original building or an area on a third level pedestrian bridge that connects the original building and the new building. Macerich further advised that PAPLA would not be permitted to protest on blackout days.

PAPLA began protesting in the designated area on the pedestrian bridge even though the location was not within aural or visual range of Barkworks. In the meantime, counsel for PAPLA objected to the WP Rules on the grounds that they discriminated between labor and nonlabor activity and were therefore unconstitutional under California law. Macerich defended the WP Rules, stating that the "discrimination between labor-related and non-labor-related petitioning activity is constitutional" and that a mall is otherwise permitted to limit petitioning activity to designated areas and days.

Macerich eventually offered PAPLA some additional locations. Best Friends did not consider them suitable. It sued Macerich for declaratory and injunctive relief based on the theory that the restrictions on free speech in the WP Rules violate article I, section 2 of the California Constitution. After initiating suit, Best Friends filed a motion for preliminary injunction to enjoin Macerich from enforcing the WP Rules to restrict PAPLA from protesting within aural and visual range of Barkworks or from protesting on blackout days. The motion was denied on the grounds that Union of Needletrades Etc. Employees v. Superior Court (1997) 56 Cal.App.4th 996 (UNITE) permits a shopping mall to limit expressive activity to designated areas and days, and also that the NLRA and state law compel Macerich to provide qualified labor activity with preferential treatment.

This timely appeal followed.


I. Preliminary injunction law; standard of review.

When ruling on a motion for preliminary injunction, "trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]" (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70; accord White v. Davis (2003) 30 Cal.4th 528, 554.) The trial court's evaluation and weighing of the two interrelated factors is reviewed for an abuse of discretion. However, the resolution of factual disputes is reviewed under the substantial evidence rule and the resolution of legal issues is reviewed de novo. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408-409.)

II. In general, the right of free speech in California entitles a person or group to protest a business in a shopping mall within aural and visual range of that business with no blackout days.

This appeals pivots upon the right of free speech within California. As a preliminary matter, we examine that right.

Article I, section 2 of the state Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects. . . . A law may not restrain or abridge liberty of speech or press." This clause, known as the liberty of speech clause, "is broader and more protective than the free speech clause of the First Amendment. [Citations.]" (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366-367 (Alliance); Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908 (Pruneyard).) Even though the First Amendment does not protect the right to free speech in a privately owned shopping mall, the California Constitution does. (Id. at p. 910; Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 862 (Fashion Valley). Thus, "[a] shopping mall is a public forum in which persons may reasonably exercise their right of free speech guaranteed by . . . the California Constitution." (Fashion Valley, supra, at pp. 869-870.) "Shopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech ...

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