Viola v. Caruso Management CA2/4 ( 2022 )

Filed 10/28/22 Viola v. Caruso Management CA2/4
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GINA VIOLA et al., B323596
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 22STCV26403)
v.
CARUSO MANAGEMENT
COMPANY LTD. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Reversed.
Altshuler Berzon, Stacey Leyton and Juhyung Harold Lee;
Law Office of Shakeer Rahman and Shakeer Rahman; Law Office
of Matthew Strugar and Matthew Strugar for Plaintiffs and
Respondents.
Nielsen Merksamer Parrinello Gross & Leoni, Sean P.
Welch, David J. Lazarus, and Arthur G. Scotland; Quinn
Emanuel Urquhart & Sullivan, Kathleen M. Sullivan and Derek
L. Shaffer for Defendants and Appellants.
THE COURT:
In this expedited appeal, in the midst of Los Angeles’s
mayoral election, we reverse a preliminary injunction that would
have required The Grove shopping mall—owned by mayoral
candidate Rick Caruso—to allow some of Caruso’s detractors to
protest his candidacy there. The facts, law, and procedural
posture of the case compel this result.
In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d
899, 910, (Pruneyard) our California Supreme Court concluded
“that sections 2 and 3 of article I of the California Constitution
protect speech and petitioning, reasonably exercised, in shopping
centers even when the centers are privately owned.” The court
noted those who seek to exercise free speech rights on private
property do not have “free rein,” but are subject to reasonable
time place and manner restrictions. (Ibid.) Similarly, when the
United States Supreme Court affirmed Pruneyard, it reiterated
that shopping mall operators could implement reasonable time,
place, and manner restrictions on those seeking to exercise free
speech rights on mall premises. (PruneYard Shopping Center v.
Robins (1980) 447 U.S. 74, 83.)
In keeping with its right to do so, The Grove adopted a set
of rules governing speech on its premises. Among other things,
the rules required those seeking to exercise speech rights at The
Grove to file applications in advance, specifying the nature of the
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proposed activity, and selecting one of two free speech areas
designated by The Grove in which to exercise their free speech
rights. Because plaintiffs applied to march throughout the
outdoor portions of the mall’s common areas, something the rules
plainly prohibit, The Grove denied their applications.
The plaintiffs then filed suit and moved for preliminary
injunctive relief on an as-applied challenge to The Grove’s rules.
Importantly, for purposes of the trial court’s consideration of
their preliminary injunction motion, the plaintiffs stated they
were not contesting the facial validity of The Grove’s rules. It is
undisputed plaintiffs had no right under those rules to march
through the mall. Thus, The Grove’s denial of plaintiffs’ requests
to do so could not have been an unconstitutional or
discriminatory application of The Grove’s rules to plaintiffs. Nor
is there evidence that the Caruso mayoral campaign has been
allowed to engage in any similar activity. Because there is no
reasonable probability that plaintiffs could prevail on the merits,
it was an abuse of discretion for the trial court to grant injunctive
relief.
FACTUAL AND PROCEDURAL BACKGROUND
Caruso owns and operates The Grove through two
companies: defendants and appellants GFM, LLC and Caruso
Management Company, Ltd. The Grove followed its established
practice of licensing parts of its common area to rent space to the
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Rick Caruso for Mayor 2022 campaign committee. In particular,
in May 2022, the Caruso campaign paid to license space in the
common area in the center of the mall for a press conference
where City Councilmember Joe Buscaino endorsed Caruso in the
presence of dozens of individuals holding Caruso campaign
signs.1
The campaign has also paid to use a portion of the
concierge stand in the lobby of the parking structure to display a
“Caruso for Mayor” sign and distribute Caruso campaign lawn
signs upon request. In May, a journalist spotted a woman
wearing a Caruso campaign sign around her neck at the mall. On
two days in June and August, two individuals associated with
plaintiffs tested the response of The Grove’s security. On each
day, one of them carried a Caruso campaign lawn sign around the
mall for about 15 minutes without being stopped; one security
officer gave a thumbs up.
In July, plaintiff and respondent Gina Viola applied to have
a 10-to-15-person march through the mall’s outdoor areas. In a
separate application, plaintiff and respondent Sim Bilal of Youth
Climate Strike Los Angeles sought permission for a 30-to-50-
1 The trial court accepted defendants’ representation that a
primary election night “watch party” held at The Grove in June
2022 was a private event that occurred when the mall was closed
to the public. As the trial court did not factor the June event into
its analysis, we will not consider it further.
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person march. Both marches were to be in opposition to Caruso’s
mayoral candidacy.
The applications were made pursuant to The Grove’s time,
place, and manner policies, titled “RULES FOR NON-
COMMERCIAL USE OF COMMON AREAS IN THE GROVE
SHOPPING CENTER.” The rules regulate “speech or activity
with a primary purpose not intended to operate, promote or
advertise the Center or any tenant or occupant thereof, and/or
the goods and services they provide,” such as obtaining
signatures, registering voters, protesting, or conducting union
activity. The rules do not apply to spontaneous conversations, but
they prohibit “any demonstrations that cause unsafe congestion .
. . or that would otherwise result in obstruction of or undue
interference with normal business operations” of the mall.
Regulated activity is to be conducted as approved by the manager
in two designated areas at the edge of the mall. Normally, up to
seven people are allowed per approved area. The area where the
Caruso campaign held its press conference, and the parking
structure lobby where Caruso campaign signs were made
available, are both outside the two areas designated for free
speech by the rules.
Plaintiffs’ applications were denied because they did not
comply with the rules. Specifically, they exceeded the permitted
number of people and did not select a designated area.
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Furthermore, The Grove concluded the proposed activity, a
march, “would impede, obstruct, and interfere with patrons and
tenants.” Plaintiffs were encouraged to submit new applications
conforming with the rules. Plaintiffs objected to the denial as
viewpoint discrimination. The Grove disagreed with that
characterization, but offered to discuss with plaintiffs options to
engage in expressive activities under its rules.
Plaintiffs did not engage further with The Grove. Instead,
they filed suit to challenge the rules in court, facially and as
applied. They sought a preliminary injunction, however, based
solely on their as-applied challenge. Specifically, they moved to
enjoin The Grove from interfering with their own “and the
general public’s expressive activity in opposition to Rick Caruso’s
mayoral campaign on differential terms or treatment than [those
applied] to expressive activity in support of Rick Caruso’s
mayoral campaign.”
In their motion, plaintiffs argued The Grove “provides its
patrons with Caruso for mayor signs and allows them to parade
through the property displaying those signs.” They contended
they had sought “permission to engage in speech critical of
Caruso’s campaign . . . on the same terms that The Grove allows
private speech supportive of Caruso’s campaign,” and The Grove
had refused to “provide even-handed treatment, instead
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discriminating based on the viewpoint and content of [their]
speech.”
In opposition, defendants argued The Grove had rejected
plaintiffs’ applications to march through the mall because those
applications did not comply with the rules, not because of
plaintiffs’ viewpoint. Further, they argued that allowing the
Caruso campaign to rent space at the mall does not give rise to a
viewpoint discrimination claim. Moreover, they offered evidence
that, upon learning of the allegations in the complaint, security
personnel had been advised to enforce The Grove’s rules
evenhandedly against members of the public who engaged in
expressive activity. Alternatively, defendants argued that
injunctive relief should be tailored to the alleged harm,
suggesting that an individual may be allowed to walk with a
small sign for 15 minutes and that respondents may request
commercial rental space at the mall.
The trial court concluded plaintiffs were likely to succeed
on their as-applied challenge based on what it perceived to be
The Grove’s selective enforcement of its rules. In response to
defendants’ objection that a ruling in plaintiffs’ favor would force
the mall to “host large-scale marches,” the trial court concluded
the proposed injunction was overbroad. At the September 22,
2022 hearing, the trial court confirmed plaintiffs would not be
allowed to march through the mall. Instead, the trial court
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encouraged the parties to agree on injunctive relief that would
allow plaintiffs to engage in expressive activity similar to that of
the Caruso campaign. It then worked closely with both parties on
revising the proposed language line by line.
The resulting preliminary injunction, issued on September
27, 2022 in favor of plaintiffs “and members of the public,”
consists of two parts. First, it prohibits defendants from
interfering with one stationary protest lasting up to an hour, to
be held on a Thursday at 3:00 p.m. between October 6 and
November 8, in the area between the angel statue and the
fountain at The Grove. The protest is limited to 30 participants;
signs, chanting, and leafletting are allowed, but amplifiers are
not permitted. Defendants may use velvet roping to separate the
protest area from walkways. Second, beginning on October 6,
defendants are prohibited from interfering with any single
individual displaying an anti-Caruso paper sign (24” x 36”) for up
to an hour a day.
Defendants participated in the crafting of injunctive relief
under protest, “reserving all rights and objections”; plaintiffs’
counsel represented that his clients were more interested in the
first part of the injunction than in the second.
This appeal followed. We granted appellants’ petition for
writ of supersedeas, along with the parties’ stipulation to
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expedite briefing. Due to the urgency created by the ongoing
election, we scheduled the hearing on a special calendar.
DISCUSSION
A. Applicable Legal Standards
1. California’s Protection of Free Expression in Malls
California is one of a handful of states that deems the
common areas of a privately owned mall to be a public forum for
free expression, and the law in this area has developed on a case-
by-case basis. (See generally Fashion Valley Mall, LLC v.
National Labor Relations Bd. (2007) 42 Cal.4th 850, 875-876 (dis.
opn. of Chin, J.) (Fashion Valley).) Malls are allowed to “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” or “‘“markedly dilute [a mall
owner’s] property rights.” [Citation.]’” (Id. at pp. 870, 863 (maj.
opn.).) Although stationary protests have been permitted in
common areas of malls in some circumstances (see e.g., Best
Friends Animal Society v. Macerich Westside Pavilion Property
LLC (2011) 193 Cal.App.4th 168, 174-175 (Best Friends) [finding
mall must permit protest in common area in range of a particular
store so long as it did not substantially interfere with normal
business operations]), no private mall has been required to host a
march of protestors in its common areas.
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2. Standards for Preliminary Injunctive Relief
“[T]he general purpose of a preliminary injunction is to
preserve the status quo pending a final adjudication of the claims
on the merits.” (O’Connell v. Superior Court (2006) 141
Cal.App.4th 1452, 1472.) A preliminary injunction that changes
the status quo is permitted only in cases where there is a clear
right to the relief. (Shoemaker v. County of Los Angeles (1995) 37
Cal.App.4th 618, 625 (Shoemaker).)
When ruling on a motion for preliminary injunction, trial
courts weigh two factors: “‘the likelihood that the plaintiff will
prevail on the merits at trial’” and “‘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.]’ [Citations.] The
trial court’s evaluation and weighing of the two interrelated
factors is reviewed for an abuse of discretion.” (Best Friends,
supra, 193 Cal.App.4th at p. 174.) However, “[a] trial court may
not grant a preliminary injunction, regardless of the balance of
interim harm, unless there is some possibility that the plaintiff
would ultimately prevail on the merits of the claim.” (Butt v.
State of California (1992) 4 Cal.4th 668, 678.) “Moreover, a
judicial remedy must be tailored to the harm at issue. [Citations.]
A court should always strive for the least disruptive remedy
adequate to its legitimate task.” (Id. at pp. 695–696.)
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3. Facial and As-Applied Challenges
A facial challenge to a challenged law, regulation, or rule
“‘considers only the text of the [rule or] measure itself, not its
application to the particular circumstances of an individual.’
[Citation.] In contrast, an as-applied challenge ‘contemplates
analysis of the facts of a particular case or cases to determine the
circumstances in which the statute or ordinance [or rule] has
been applied and to consider whether in those particular
circumstances the application deprived the individual to whom it
was applied of a protected right. [Citations].’” (People v. Superior
Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 387.)
“To prevail on such a contention, the party asserting an as
applied challenge must establish a pattern of impermissible
application of the statute, rule or policy.” (Ribakoff v. City of Long
Beach (2018) 27 Cal.App.5th 150, 167.) “‘[C]lassifying a lawsuit
as facial or as-applied affects the extent to which the invalidity of
the challenged law must be demonstrated and the corresponding
“breadth of the remedy,” but it does not speak at all to the
substantive rule of law necessary to establish a constitutional
violation.’” (People v. Superior Court (J.C. Penney Corp., Inc.,
supra, 34 Cal.App.5th at p. 405 fn. 17.)
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B. Preliminary Injunctive Relief Is Unwarranted
Respondents’ as-applied challenge is based on their claim
that The Grove’s unequal application of its policies discriminated
against them based on their viewpoint as Caruso’s opponents.
“Discretionary determinations by a public [or other] official of
which viewpoints will be heard and which will not be heard
encourage censorship and discrimination, and are
constitutionally suspect.” (In re Juan C. (1994) 28 Cal.App.4th
1093, 1099.) Respondents have not identified any California case,
and we have found none, finding that a preliminary injunction
should issue because a facially valid statute or rule was applied
to restrict speech in a viewpoint-discriminatory way. Looking to
federal law, in order to establish such an as-applied claim for
discriminatory selective enforcement, respondents would have to
show that The Grove responded differently, depending on the
speaker’s viewpoint, to the same or similar types of expressive
activities. (See McGuire v. Reilly (1st Cir. 2004) 386 F.3d 45, 62
[describing an as-applied First Amendment viewpoint
discrimination claim as “a claim that the government enforces
the law against persons of one viewpoint who violate the statute
while not enforcing the law against similarly situated persons of
the opposing viewpoint who also violate the statute” (emphasis
added)]; Mahoney v. District of Columbia (D.D.C. 2009)
662 F.Supp.2d 74, 88 [finding selective enforcement claim
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regarding application of defacement statute failed where plaintiff
asked court to compare “dissimilar incidents” of chalking public
streets]; Frederick Douglass Foundation, Inc. v. District of
Columbia (D.D.C. 2021) 531 F.Supp.3d 316, 333-335 (Frederick
Douglass Foundation) [denying request for preliminary
injunction on claim for selective enforcement of defacement
statute given lack of “materially similar circumstances” between
plaintiffs’ “Defund the Police” street mural and the “Black Lives
Matter” mural that city allowed]; cf. Hoye v. City of Oakland (9th
Cir. 2011) 653 F.3d 835, 850-852 [finding city enforced its facially
valid “Bubble Ordinance” around abortion clinics in an
impermissibly content-based manner by permitting individuals to
approach another to offer help in accessing an abortion but
forbidding approaching to discourage abortion].) Here,
respondents have not shown they were prohibited from engaging
in speech activities similar to those of the Caruso campaign.
Before the trial court, respondents exaggerated and
misrepresented the campaign’s activities, claiming The Grove
allowed Caruso supporters to “march” or “parade” through The
Grove, “displaying their Caruso for Mayor signs.” Yet, there is no
evidence The Grove has allowed pro-Caruso marches or parades
of any size, let alone ones involving anywhere from 10 to 50
participants at a time, as respondents sought to do. The trial
court correctly concluded the denial of the applications to march
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was proper under The Grove's time, place and manner policies,
whose validity respondents did not contest for purposes of their
as-applied challenge. Given that respondents had applied for and
were denied permission to engage in an activity no court has
found they had a right to engage in, and absent evidence the
Caruso campaign had been permitted to engage in the same type
of activity, respondents have not demonstrated The Grove
abridged their free speech rights or treated them differently than
the Caruso campaign based on their viewpoint. As such, the trial
court should have concluded respondents were unlikely to prevail
on their as-applied challenge and denied preliminary injunctive
relief.
Here, the trial court essentially ordered that a large-scale
protest take place at the center of The Grove, even though it does
not comply with The Grove’s policies and is not sanctioned under
any California authority. Apparently, the protest is supposed to
be a rough equivalent to the Caruso campaign’s May 2022 press
conference. The trial court had discretion to tailor relief to
redress harm to respondents. It did not, however, have license to
order preliminary injunctive relief that went far astray from the
expressive activity requested by respondents, the only activity for
which The Grove denied permission. Where California courts
have granted injunctive relief to protect speech activities in
malls, they have limited the relief to barring enforcement of a
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particular rule or a set of rules against the specific expressive
activity plaintiffs had been denied the right to engage in. (See,
e.g., Pruneyard, supra, 23 Cal.3d at p. 911 [reversing judgment
denying plaintiffs’ request to enjoin shopping center from
preventing access to solicit signatures for a petition]; Best
Friends, supra, 193 Cal.App.4th at p. 186 [holding it was error to
deny plaintiff's requested preliminary injunction enjoining mall
from preventing plaintiff “from protesting within aural and
visual range” of a pet shop unless the mall proved any such
protest would interfere with its normal business operations];
accord Lela v. Board of Trustees of Community College District
No. 516 (N.D. Ill., Jan. 27, 2015, No. 14 CV 5417) 2015 WL
351243 [enjoining a community college from denying access to the
plaintiffs for purposes of leafletting, the activity for which they
had applied].) Respondents have cited no case where a court
devised a remedy to allow a plaintiff to engage in a speech
activity different from the one in which the plaintiff had
attempted to engage. Because the trial court’s fashioning of the
injunction to order a stationary protest was unprecedented given
the circumstances here and would upset the status quo, the
preliminary injunction should not have been granted.
(Shoemaker, supra, 37 Cal.App.4th at p. 625.)
The injunctive relief permitting individuals to display anti-
Caruso signs for up to one hour a day was similarly unjustified
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based on the record to date. The evidence indicates the Caruso
campaign gives out lawn signs on demand, and that on three
separate occasions over the span of three months, three
individuals have walked around the mall with Caruso signs
without being stopped by security. Because respondents did not
apply to leaflet or to display signs under The Grove’s rules, it is
impossible to say whether they would have been allowed to do so.
Moreover, respondents did not test whether The Grove would
permit people to carry anti-Caruso signs. Even if they had,
“simply ‘[p]ointing to a handful of instances of allegedly
inconsistent enforcement is not enough to justify declaring [a]
statute [or rule] unconstitutional as applied to conduct the
parties do not dispute falls under its purview.’ [Citation.] For in
such circumstances, there is neither a ‘pattern’ of enforcement
activity based on content or viewpoint, nor a showing of
government [or mall owner] ‘intent[ ]’ underlying the disparate
application.’” (Frederick Douglass Foundation, supra, 531
F.Supp.3d at p. 331; see Baluyut v. Superior Court (1996) 12
Cal.4th 826, 832 [“Unequal treatment which results simply from
laxity of enforcement or which reflects nonarbitrary selective
enforcement of a statute does not deny equal protection and is not
constitutionally prohibited discriminatory enforcement”].)
Ironically, respondents’ counsel represented that his clients are
not particularly interested in a remedy for the perceived problem
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of selective enforcement concerning displays of anti-Caruso signs.
Thus, paradoxically, in the second part of the injunction the trial
court fashioned a remedy to allow unspecified individuals to
engage in an activity respondents had neither sought, nor were
eager to engage in themselves.
In short, given that respondents’ applications were properly
denied by The Grove, and respondents therefore are unlikely to
succeed on the merits, the trial court abused its discretion by
granting the preliminary injunction.2
DISPOSITION
The order granting respondents’ motion for a preliminary
injunction is reversed. Appellants are entitled to their costs on
appeal.
COLLINS, Acting P.J. CURREY, J. STONE, J.**
2 It is unnecessary to address the parties’ numerous
additional arguments and we express no opinion on the merits of
plaintiffs’ facial challenge to The Grove’s policies or defendants’
contention that the Caruso campaign’s activities are not subject
to those same policies.
**
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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