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Donahue Schriber Realty Group, Inc. v. NU Creation Outreach

California Court of Appeals, Fifth District

December 12, 2014

DONAHUE SCHRIBER REALTY GROUP, INC., Plaintiff and Respondent,
v.
NU CREATION OUTREACH et al., Defendants and Appellants.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of Fresno County No. 13CECG02422. Kristi Culver Kapetan, Judge.

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COUNSEL

Damone Daniel, in pro. per., for Defendant and Appellant.

No appearance for Defendant and Appellant Nu Creation Outreach.

Morrison & Forester, Miriam A. Vogel, David F. McDowell, Dale K. Larson and Jeremiah M. Levine for Plaintiff and Respondent.

OPINION

HILL, P. J.

Plaintiff obtained a preliminary injunction enjoining defendants from soliciting charitable donations or engaging in other expressive activities on sidewalks adjacent to store entrances in plaintiff’s shopping center; the order permits defendants to engage in such activities in the public forum area of the shopping center designated on a diagram attached to the injunction.

Page 1175

Defendants appeal, contending the areas adjacent to store entrances where they solicited donations are public forum areas in which expressive activities cannot be prohibited. We find no error in the trial court’s determination that the store entrances and aprons are not a public forum. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff controls the Fig Garden Village shopping center, an outdoor shopping center with approximately 60 retailers. Plaintiff has a policy of prohibiting solicitation of donations on the shopping center property; it allows other forms of expressive activity, such as gathering petition signatures, in a designated public forum area only. On July 28, 2013, two solicitors for Nu Creation Outreach went on the shopping center property and solicited donations on sidewalk areas adjacent to the entrances of stores within the shopping center. The next day, six to eight solicitors for Nu Creation Outreach solicited donations adjacent to multiple retailers in the shopping center. Plaintiff explained its policy regarding solicitation and asked the solicitors to leave, but they refused. When plaintiff called the police to have the solicitors removed, the officers would not arrest them without a court order.

Plaintiff filed a complaint against Damone Daniel and Nu Creation Outreach for declaratory relief and trespass; it also filed an ex parte application for a temporary restraining order (TRO) and an order to show cause (OSC) why a preliminary injunction should not be issued, enjoining defendants and their agents from soliciting donations on the shopping center property. The trial court granted the ex parte application and issued a TRO and an OSC. After hearing of the OSC, the trial court issued a preliminary injunction, which did not prohibit all solicitation on plaintiff’s property, but restricted it to a designated public forum area marked on a map attached to the preliminary injunction. Defendants appeal.

DISCUSSION

I. Appeal by Nu Creation Outreach [*]

II. Appealability and Standard of Review

An order granting an injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6).) Ordinarily, it is reviewed for abuse of discretion.

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“It is settled that the decision to grant a preliminary injunction is within the discretion of the trial court. [Citations.] A trial court abuses its discretion only if it has ‘“exceeded the bounds of reason or contravened the uncontradicted evidence.”’ [Citations.]” (City of ...


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