Slevin v. Home Depot ( 2000 )

120 F. Supp. 2d 822 (2000)

John SLEVIN, et al., Plaintiffs,
v.
HOME DEPOT, Defendant.

No. C 00 715 SBA.

United States District Court, N.D. California.

July 12, 2000.

Dickstein & Merin, Mark E. Merin, Sacramento, CA, for plaintiffs.

Thomas J. Leanse, Stacey McKee Knight, Los Angeles, CA, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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.

I. BACKGROUND

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.^[1] (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."^[2] (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.^[3] 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.

II. STANDARD OF REVIEW

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).

III. DISCUSSION

A. Objections to Evidence

Defendant has raised a number of objections to the declaration of John Slevin. The Court rules on these objections in the chart that follows:

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EVIDENCE ELICITING THE                   OBJECTION                    RULING
OBJECTION
------------------------------------------------------------------------------------------------------------------
"I am a plaintiff in this action         1. Lack of Foundation.       1. The objection is OVERRULED
and a petitioner who regularly           FRE 602.                     as to where Plaintiff petitions since
registers voters and obtains signatures  2. Improper opinion          the foundation is plaintiff's personal
on petitions to place                    and conclusion.              experience. The objection is SUS-

matters on local and statewide           FRE 701.                     TAINED as to the term "common
ballots. To accomplish these             3. Irrelevant. FRE           areas" since plaintiff provides no
goals, I frequently petition on          401 and 402.                 basis for knowing whether an area
sidewalks and common areas in                                         is a common area.
front of Home Depot stores                                            2. The objection is SUSTAINED
through the State of California."                                     since plaintiff's apparently legally
(emphasis added).                                                     infused conclusion regarding whether
an area is a "common area" is
not helpful to a clear understanding
of his testimony or for determining
a fact in issue.
3. The objection is OVERRULED.
If admissible, the term "common
area" could bear on the question of
whether a public forum is present.
------------------------------------------------------------------------------------------------------------------
"Staples also has a large store          Vague, misleading,           OVERRULED. As defendant admits
adjacent to Home Depot and               and ambiguous language.      in its objection, the two vacant
there are areas within the shopping      F.R.E.                       tenant spaces in the Plaza building
center where additional                  611(a).                      are areas which may be developed.
stores may be developed."
==================================================================================================================
"There are wide sidewalks and            1. Lack of foundation.       1. OVERRULED. The plaintiff
concrete aprons in front of Home         F.R.E. 602.                  does not make any assertion in this
Depot's store and food carts near        2. Lack of foundation.       language regarding the purpose of
the entrance and exit to the             F.R.E. 602.                  the carts nor who maintains them.
store from which hotdogs, sandwiches,    3. Irrelevant. FRE           2. SUSTAINED. Plaintiff provides
ice cream, drinks and                    401 and 402.                 no foundation for knowing whether
other foods are sold. About a            4. Vague, ambiguous,         people "continuously gather"
dozen chairs are arrayed around          and factually incorrect      around the food carts.
and in the vicinity of the food          language.                    3. OVERRULED. The hot dog
carts where people continuously          F.R.E. 611(a).               vendor is relevant to the scope of
gather without obvious restrictions."                                 the store's invitation to the public.
4. OVERRULED. Defendant essentially
is asking the Court to resolve
a factual issue, which is not
the purpose of summary judgment.
------------------------------------------------------------------------------------------------------------------
"Adjacent to the entrance and            1. Lack of Foundation.       1. OVERRULED. This statement
exit doors are beverage machines         FRE 602.                     does not make any assertion regarding
which dispense cans of                   2. Irrelevant. FRE           the purpose of the beverage
soda to the public."                     401 and 402.                 machines.
3. Vague, ambiguous,         2. OVERRULED. The beverage
and misleading               machine is slightly probative of the
language. F.R.E.             scope of the store's invitation to the
611(a).                      public.
3. OVERRULED.
------------------------------------------------------------------------------------------------------------------
"In front of Home Depot there            1. Lack of Foundation.       1. OVERRULED. This statement
are displays of flowers and other        FRE 602.                     does not make any assertion regarding
merchandise which people may             2. Irrelevant. FRE           the purpose of the flower
inspect without entering the             401 and 402.                 displays.
store."                                  3. Improper opinion          2. OVERRULED. The flower display
and speculation.             is probative of the scope of the
FRE 701.                     store's invitation to the public.
4. Vague, ambiguous,         3. OVERRULED. This statement
and misleading               does not include any conclusion regarding
language. F.R.E.             the purpose of the display.
611(a).                      Plaintiff's statement regarding
whether an individual may inspect
the flowers without entering the
store is not obviously an opinion.
4. OVERRULED. The term "other
merchandise" clearly communicates
that the flower displays are
merchandise for sale.
==================================================================================================================
"Customers need not be Home              1. Lack of Foundation.       1. OVERRULED. The Court reasonably
Depot shoppers to purchase food          FRE 602.                     reads this statement as
and drinks from the stands or            2. Lack of Founda-           plaintiff asserting he has observed

machines in front of Home Depot          tion. FRE 602.               individuals patronizing the vendors
and I have personally observed           3. Improper opinion          without going into Home Depot's
persons strolling across the             and speculation.             store. The statement need not
parking lot to patronize the vendors     FRE 701.                     mean that plaintiff observed the
without going into Home                  4. Irrelevant. FRE           purpose of the individuals observed.
Depot's store."                          401, 402.                    2. OVERRULED. The plaintiff
5. Vague, ambiguous,         need not identify who he observed.
and misleading language.     The circumstances of the observation
F.R.E.                       are sufficient.
611(a).                      3. OVERRULED. As discussed in
one, this statement need not be
read as drawing any conclusion regarding
the purposes of the individuals
observed.
4. OVERRULED. This statement
bears on the scope of the store's
invitation to the public.
5. OVERRULED.
------------------------------------------------------------------------------------------------------------------
"Home Depot in Pittsburg is an           1. Irrelevant. FRE           1. OVERRULED. Whether Home
excellent site at which to petition.     401 and 402.                 Depot has a steady flow of traffic
There is a steady flow of                2. Lack of Foundation.       such that it therefore is an "excellent
traffic and wide open areas within       FRE 602.                     site" to petition is relevant to
which to discuss the issues on           3. Improper opinion          the public forum inquiry.
the petitions and obtain signatures      and speculation.             2. SUSTAINED. Plaintiff fails to
from passers by."                        FRE 701.                     provide its basis for knowing there
4. Vague, ambiguous,         is a steady flow of traffic.
and misleading               3. SUSTAINED. Because foundation
language. F.R.E.             lacking, it is not clear whether
611(a).                      the conclusions regarding "excellent
site" and "steady flow" are rationally
based on plaintiff's perception.
4. SUSTAINED.
==================================================================================================================
"Home Depot has recognized               1. Best Evidence.            1. OVERRULED. Sign does not
that the area in front of its store      FRE 1006.                    say who designated the area as a
is a public forum and has even           2. Lack of Foundation.       public forum nor who erected it.
designated it as such, erecting          FRE 602.                     2. SUSTAINED. Plaintiff provides
signs specifying that it permits         3. Lack of Foundation.       no foundation for knowing who designated
`soliciting, petitioning, and/or         FRE 602.                     the area as a public forum
distributing literature' on its          4. Improper opinion          nor who erected the sign.
property since the presence of           and speculation.             3. SUSTAINED. Plaintiff provides
petitioners on Home Depot's              FRE 701.                     no foundation for knowing whether
property is `permitted by California     5. Vague, ambiguous,         Home Depot designated the area as
court decisions."'                       and misleading               a public forum.
language. F.R.E.             4. SUSTAINED.
611(a).                      5. OVERRULED.
------------------------------------------------------------------------------------------------------------------
"I have petitioned in front of           1. Lack of Foundation.       1. OVERRULED. Plaintiff has
Home Depot stores in many other          FRE 602.                     personal knowledge of where he petitioned.
California cities, including the         2. Lack of Foundation.       Merely showing that
City of Stockton, and know that          FRE 602.                     plaintiff did not include all relevant
Home Depot has adopted a system-wide     3. Irrelevant FRE            details and circumstances does not
application procedure                    401 and 402.                 mean that plaintiff has not established
used to keep track of persons            4. Vague, ambiguous,         a sufficient foundation for
petitioning on Home Depot's              and misleading               what he does include.
property."                               language. F.R.E.             2. SUSTAINED. Plaintiff does not
611(a).                      have a basis for concluding anything
regarding what Home Depot
does system-wide nor the purpose
of the application procedure merely
because he has petitioned in front
of stores at other cities, which is
the only foundation provided.
3. OVERRULED. The existence
of a system-wide application procedure
is slightly probative of whether
the store invites petitioning activities,
which is probative of

whether the store is a quasi-public
forum.
4. OVERRULED.
==================================================================================================================
"Home Depot arrested us on November      1. Lack of Foundation.       1. SUSTAINED. Plaintiff provides
6, 1998, not because it                  FRE 602.                     no foundation for knowing Home
maintained that the area in front        2. Improper opinion          Depot's reason for arresting him.
of Home Depot was not a public           and speculation.             2. SUSTAINED. Plaintiff has not
forum, but rather because we objected    FRE 701.                     demonstrated that his opinion is rationally
to the specific place to                 3. Irrelevant. FRE           based on his perception.
which we were to be confined             401 and 402.                 3. SUSTAINED. Even if accurately
since it was not located near an                                      described by plaintiff, Home Depot's
entrance or exit door which conflicted                                reason for arresting plaintiff
with the Home Depot                                                   does not bear on the public forum
written policy."                                                      question.
------------------------------------------------------------------------------------------------------------------
"I have gone into the Home Depot         1. Lack of Foundation.       1. OVERRULED. His foundation
store and, from my own observations,     FRE 602.                     is his observations while in the
noted that the merchandise               2. Irrelevant. FRE           Home Depot store.
for sale includes a wide                 401 and 402.                 2. OVERRULED. The type of
range of hardware items, gathering                                    items carried by Home Depot is
items, lightening fixtures,                                           relevant to the scope of the store's
tools, building supplies, spas,                                       invitation.
sheds, plumbing equipment and
supplies, carpeting, waste baskets,
tubs, appliances, chemicals
and a host of miscellaneous
items."
------------------------------------------------------------------------------------------------------------------
"I have personally observed people       1. Lack of Foundation.       1. OVERRULED. His foundation
meeting in the area in front             FRE 602.                     for this statement is his personal
of the stores where we have petitioned,  2. Irrelevant. FRE           observations.
and conversing in small                  401 and 402.                 2. OVERRULED. The fact that
groups."                                 3. Improper opinion          people converse in small groups is
and speculation.             slightly probative of the quasi-public
FRE 701.                     forum question, although the absence
4. Vague, ambiguous,         of any information regarding
and misleading               the frequency of these meetings
language. F.R.E.             limits the probative value.
611(a).                      3. OVERRULED. No opinion is
included in that statement. This
objection borders on the frivolous.
4. OVERRULED.
==================================================================================================================
"While I have not counted them,          1. Lack of Foundation.       1. SUSTAINED. Because plaintiff
it looks like there are over a           FRE 602.                     admits he has not counted the parking
thousand parking places in the           2. Lack of Foundation.       spaces and fails to provide any
shopping center which is also adjacent   FRE 602.                     basis for the court to conclude he
to the Staples office supply             3. Improper opinion          has personal knowledge, his estimate
store which includes a copy              and speculation.             lacks a foundation.
center. The sidewalk between             FRE 701.                     2. SUSTAINED. Although his
the Staples and Home Depot               4. Irrelevant. FRE           personal observation would permit
stores resembles a plaza where           401 and 402.                 him to describe the sidewalk, the
people can meet and converse.            5. Vague, ambiguous,         absence of any basis for knowing
Other areas of the shopping center       and misleading               the elements of a "plaza" combined
are attractively landscaped              language. F.R.E.             with the absence of a particularized
and resemble a public park."             611(a).                      description of this sidewalk undermines
any finding that he has personal
knowledge that this sidewalk
resembles a plaza.
3. SUSTAINED. The opinion regarding
the number of parking
spaces is not rationally based on his
perception if he has not made any
attempt to count the spaces. Likewise,
the "resembles a plaza" conclusion
is not rationally based on
any perception revealed by the
plaintiff.

4. OVERRULED. The presence of
a Staples is probative of the issue of
a quasi public forum, as discussed
with respect to the Trader Joe's
case infra.
5. OVERRULED.
------------------------------------------------------------------------------------------------------------------
"I would estimate that the interior      1. Lack of Foundation.       1. SUSTAINED. Plaintiff fails to
of the store takes up no less            FRE 602.                     provide any basis by which the
than 300,000 square feet."               2. Improper opinion          court could conclude he has personal
and speculation.             knowledge of the size of the
FRE 701.                     store. For example, he does not
3. Vague, ambiguous,         testify to any particular experience
and misleading               in estimating store size.
language. F.R.E.             2. SUSTAINED. Absent some
611(a).                      reason to put faith in plaintiff's estimates,
his estimate of the store's
size is not rationally based on his
perception.
3. OVERRULED.
------------------------------------------------------------------------------------------------------------------

B. Summary Judgment Motion

Defendant moved to dismiss all four of plaintiff's causes of action. The crux of its argument was that the third cause of action must fail since plaintiff had no constitutional right to engage in the petitioning activities described in the complaint. Absent such a right, the first cause of action for injunctive relief, the second cause of action for false arrest and imprisonment, and the fourth cause of action for intentional infliction of emotional distress must fail, respectively, because (1) no unconstitutional restraint exists for which an injunction is necessary, (2) plaintiffs were subject to a lawful arrest based on their unprotected petitioning activity, and (3) a lawful arrest without more does not constitute "outrageous conduct." In its brief responding to the Court's order converting this motion into one for summary judgment, defendant focused on the limited scope of the store's invitation to the public, the physical attributes of the Plaza in general and Home Depot in particular, and the physical isolation of the Plaza property as support for its conclusion that the Pittsburg Home Depot is not a public forum that would implicate petitioning rights. (Supp. Mem. at 2).

1. Background Law

Plaintiffs' complaint thrusts the Court into an area of California constitutional law that is still evolving. The threshold issue presented is whether the California constitution affords plaintiffs the right to petition the area in front of the Main Exit to the Pittsburg Home Depot.

a. Pruneyard: The Seminal Case

Article I, section 2 of the California Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." This provision extends broader protection to free speech rights than does the First Amendment. See Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 908, 153 Cal. Rptr. 854, 592 P.2d 341 (Ca.1979). In some situations, the free speech and petitioning protection provided by this provision outweighs a private property owner's right to exclude others. NLRB v. Calkins, 187 F.3d 1080, 1090 (9th Cir.1999).

In Pruneyard, the California Supreme Court held that Article I, sections 2 and 3 protect "reasonably exercised" speech and petitioning in "shopping centers even when the centers are privately owned." Pruneyard, 23 Cal.3d at 910, 153 Cal. Rptr. 854, 592 P.2d 341. The Court noted that shopping centers, which "apparently" had replaced central business districts as the hub of retail activity, can furnish an "essential and invaluable forum" for the exercise of speech and petitioning rights. Id. The private shopping center at issue in that case occupied approximately 21 acres and included 65 shops, 10 restaurants, a cinema, and the central courtyard where the plaintiffs had conducted their petitioning. Id. at 902, 153 Cal. Rptr. 854, 592 P.2d 341.

b. The Pruneyard Balancing Test

The Court in Pruneyard carefully limited its holding by citing favorably to the following passage from a prescient 1994 dissenting opinion by Justice Mosk in Diamond v. Bland:

It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center at issue in Diamond]. A handful of additional elderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations would not markedly dilute defendant's property rights.

Id. at 910-11, 153 Cal. Rptr. 854, 592 P.2d 341 (citing Diamond v. Bland, 11 Cal. 3d 331, 345, 113 Cal. Rptr. 468, 521 P.2d 460 (1974) (Mosk, J., dissenting)) (internal citation omitted) (emphasis added). Pruneyard thus distinguishes between shopping centers, which implicate First Amendment rights, and modest retail establishments, which do not, but it fails to establish a bright line rule regarding retail stores.^[4] The focus of Pruneyard and its progeny is whether "private property ... has taken on the attributes of public property." Feminist Women's Health Center v. Blythe, 32 Cal. App. 4th 1641, 1660, 39 Cal. Rptr. 2d 189 (1995).

In the wake of Pruneyard, a court should balance the interests of the property owner and of society "with respect to the particular property or type of property at issue" when determining whether a state constitutional right to engage in free speech and petitioning activities exists. See Trader Joe's Co. v. Progressive Campaigns, 73 Cal. App. 4th 425, 433, 86 Cal. Rptr. 2d 442 (1999). Relevant factors in this balancing analysis include whether the property owner has opened his property to the public, the scope of the property owner's invitation to the public, whether the property includes places for people to congregate and spend time together, and the purpose(s) which motivates people to come to the property.^[5]Id. at 433-34, 86 Cal. Rptr. 2d 442. The Ninth Circuit recently identified similar factors as shaping the analysis of whether a small business qualifies as a "modest retail establishment." It concluded that a court should consider "the nature and extent of the public invitation to the property, and the nature, purposes, and primary uses of the property." NLRB v. Calkins, 187 F.3d 1080, 1090 (9th Cir.1999).

c. The Spectrum of Pruneyard Cases

The best approach for assessing defendant's motion is to imagine a spectrum of commercial entities. A two-story, single-purpose building that houses a bank is an example of one end of the spectrum. Bank of Stockton v. Church of Soldiers of the Cross of Christ of the State of California, 44 Cal. App. 4th 1623, 52 Cal. Rptr. 2d 429 (1996). In concluding that the Bank was a "modest retail establishment" whose property interests outweigh society's interests in utilizing the building as a public forum, Bank of Stockton emphasized that the building did not provide any place for people to congregate and that the public invitation generally extended only to those people contracting business at the bank. See Id. at 1630-31, 52 Cal. Rptr. 2d 429. A stand-alone, medical center, albeit larger in size, forms another example of this end of the spectrum. See Allred v. Harris, 14 Cal. App. 4th 1386, 1392, 18 Cal. Rptr. 2d 530 (1993) (concluding that the Medical Center, which housed nineteen tenants ranging from a general surgery center to a family planning center, lacked the attributes of a public forum particularly since it did not provide a place for the public to congregate and offered services only to a very specific clientele). See also Planned Parenthood v. Wilson, 234 Cal. App. 3d 1662, 1672, 286 Cal. Rptr. 427 (1991) ("Although members of the public are invited to avail themselves of the particular services performed by specific tenants [in the medical complex], they are not invited to congregate, relax, visit, seek out entertainment, browse and shop for personal, household, or general business merchandise.").

The large shopping center constitutes the other end of the spectrum. See Pruneyard, 23 Cal.3d at 910-11, 153 Cal. Rptr. 854, 592 P.2d 341; Union of Needletrades v. Superior Court of Los Angeles County, 56 Cal. App. 4th 996, 1017, 65 Cal. Rptr. 2d 838 (1997). Unlike a medical building or a bank, it invites people to congregate. See Pruneyard, 23 Cal.3d at 910, 153 Cal. Rptr. 854, 592 P.2d 341.

Trader Joe's provides an instructive example for a case falling between these two poles. It involved an 11,000 square-foot, single structure, single use, retail food store that apparently was not part of a shopping center and did not share property with any other retailer. Trader Joe's, 73 Cal.App.4th at 428, 433, 86 Cal. Rptr. 2d 442. In finding that the store was not uniquely situated to constitute a public forum, the court concentrated on the scope of the store's public invitation. As distinguished from the shopping center in Pruneyard, Trader Joe's invited people only to shop for food and food-related items, not to meet friends, eat, rest, or be entertained; moreover, the store provided no space for people to congregate, no restaurants for people to eat, and no theaters or other forms of entertainment. Id. at 433, 86 Cal. Rptr. 2d 442. Accordingly, the public's interest in using the store as a forum for free speech and petitioning activity was less pronounced than in the case of a large shopping center. Id. See Busch v. Ralphs Grocery Co., Super. Ct. No. SC051874 (Cal.Ct.App. June 15, 2000) (holding private property rights outweigh public's interest in using as a forum for speech a 32,428 square foot grocery store that invites people to shop and not to congregate, does not provide a place for people to sit and eat, and does not offer a theater, plazas, walkways, or courtyards).

In re Lane, 71 Cal. 2d 872, 79 Cal. Rptr. 729, 457 P.2d 561 (1969) (en banc) and Calkins, two other prominent cases falling between the aforementioned poles, reach an opposite result than Trader Joe's. Lane, which predated Pruneyard and rested on federal law^[6], held that the First Amendment protected the petitioner's efforts to distribute handbills to customers entering a large, stand-alone, "super-market-type" grocery store. Lane, 71 Cal.2d at 873, 79 Cal. Rptr. 729, 457 P.2d 561. The handbills distributed by the petitioner, who had positioned himself on the store's sidewalk just outside one of its doorway entrances, urged customers not to patronize the store since it advertised in newspapers published by an individual with whom petitioner's union was immersed in a labor dispute. Id. In holding that this particular part of the sidewalk was a "public area in which members of the public may exercise First Amendment rights," the Court noted that holding otherwise effectively would permit the store to immunize itself from "on-the-spot public criticism." Id. at 876, 79 Cal. Rptr. 729, 457 P.2d 561.

The court in Calkins held that a large, supermarket grocery outlet did not constitute a "modest retail establishment." Calkins, 187 F.3d at 1092. The factors pushing in favor of petitioning rights included the store's location on a prominent state highway, the absence of a requirement that customers make advance appointments to shop, the fact that the use of the property was not limited to specific clientele nor specific purposes, and the store's accommodation of browsers who did not ultimately purchase any items. Id.

2. Analysis

The instant case involves a large store — occupying 100,300 square feet — within a larger building/shopping center. Unlike the stores in Trader Joe's, Lane, and Calkins, the Home Depot is not a stand-alone store. On the other hand, unlike in Pruneyard, the defendant here is an individual store within the shopping center rather than the shopping center itself^[7] and the petitioning activities occurred adjacent to the store and not in a central courtyard.

As a preliminary point, defendant cannot reasonably argue that the mere fact that a store is part of a shopping center means that the store itself cannot be subject to suit for alleged violations of free speech and petitioning activities in areas associated with the store. If a stand-alone store is potentially liable for free speech violations, as both Lane (regardless of the scope of its continuing viability) and Calkins suggest, then an individual store within a shopping center retains similar exposure. Defendant's strongest authority, Trader Joe's, carefully left open the possibility that a store that is not a public forum by itself may constitute a public forum due to its proximity to other stores by observing that "because [Trader Joe's] is a stand-alone structure, there can be no contention that its relationship to other establishments transforms it into a public forum." Trader Joe's, 73 Cal.App.4th at 433, 86 Cal. Rptr. 2d 442 (emphasis added).

Plaintiffs rely principally on Lane and Calkins, but the instant facts are significantly distinct from the facts involved in those cases. Lane concerned union petitioning activities whose content was directly aimed at the store being picketed. Numerous California cases have emphasized both the union nature of the activities in Lane and the connection between the content of the speech and the store as factors particularly weighing against the property owner's interest and distinguishing Lane from other cases. Trader Joe's, 73 Cal. App.4th at 435, 86 Cal. Rptr. 2d 442; Allred v. Shawley, 232 Cal. App. 3d 1489, 1504, 284 Cal. Rptr. 140 (Cal.Ct.App.1991); see Busch v. Ralphs Grocery Co., Super. Ct. No. SC051874, at 2 n. 1 (Cal.Ct.App. June 15, 2000); Sears, Roebuck, & Co. v. San Diego County District Council of Carpenters, 25 Cal. 3d 317, 328, 158 Cal. Rptr. 370, 599 P.2d 676 (1979). Calkins also involved union picketing and handbilling.^[8] Because the instant case does not involve union activities nor does it entail a message particularly related to Home Depot, plaintiffs' two primary authorities are distinguishable.

On the other hand, the instant facts also are distinguishable from those at issue in Trader Joe's, defendant's strongest authority. Despite defendant's contentions otherwise, the Pittsburg Home Depot, which is almost ten times the size of the store in Trader Joe's, is not a per se single use store. In addition to selling construction, home improvement items, and garden supplies, it permits a vendor to sell hot dogs and other food items in front of the store and provides a sitting area of approximately 6-12 chairs. (See Slevin Decl. at Exs. 5 and 6). It thus implicitly invites individuals to purchase food from the vendor and to sit and eat on the premises. In addition, a sign located between the Home Depot Garden Center and the vacant store immediately next to the Home Depot proclaims the area as a "PUBLIC FORUM AREA" where petitioning can occur under certain conditions.

Despite these facts distinguishing the instant case from Trader Joe's, no triable issue exists regarding whether the area in front of the Main Exit to the Pittsburg Home Depot is a public forum. The hot dog stand and modest sitting area hardly transform the Home Depot into the hub of activity envisioned in Pruneyard, which involved a 21 acres shopping center housing some 65 shops, 10 restaurants, and a cinema. In light of the almost 3,000 customers that engage in transactions each day at the Pittsburg Home Depot, the six to twelve person sitting area is, based on the evidence before the Court, a sidelight to Home Depot's operation. Neither the Home Depot nor the shopping center in which it sits contain any entertainment areas, such as a cinema, nor any common plazas or courtyards other than the hot dog area. The size of the shopping center in Pruneyard dwarfs that of the "shopping center" involved here.

The sign designating a portion of the frontage area of Home Depot as a public forum area would not raise a triable issue even if Home Depot had erected it.^[9] Plaintiffs have offered no evidence as to the sign's location other than that the sign(s) is on Home Depot's property.^[10] (Slevin Decl. at ¶ 10). Nevertheless, Slevin concludes that the sign has designated "the area in front of [the] store [a]s a public forum." (Id.). This conclusion regarding the entire front of the store is unwarranted in light of the undisputed evidence that the sign is positioned between the Home Depot Garden Center and the vacant store immediately next to the Home Depot. By its terms, the sign limits the public forum designation to "[t]his area." Plaintiffs have provided no evidence that "[t]his area" encompasses the area where they engaged in their petitioning activities.

Home Depot's implementation of an application procedure for individuals desiring to engage in noncommercial speech activity does not raise a triable issue. The mere fact that a store implements time, place, and manner regulations does not transform the area into a public forum. See Lushbaugh v. Home Depot, EC 026533, at 3 (Super.Ct.Ca. May 15, 2000). The store has not thereby dedicated its private property to public purposes. Id. See generally Busch, Super.Ct.No. SC051874, at 8 ("While the fact that some people are allowed to speak at the Ralphs store is a factor to consider in determining the nature of Ralphs's invitation to the public, it does not by itself create a quasi-public forum."). Home Depot's application explicitly states that its application rules do not result in the dedication of its property to public uses or the waiver of its private property rights.

In sum, even after construing the facts presented in the light most favorable to the plaintiffs, no dispute of material fact exists. The area in front of the Pittsburg Home Depot's Main Exit is not a public forum. The narrow scope of Home Depot's invitation to the public coupled with the absence of any significant area near the store's entrances or exits where people congregate for noncommercial purposes, eat, or are entertained renders any analogy to the shopping center in Pruneyard unavailing. Because no evidence exists that the substance of petitioner's petitioning activities particularly implicated Home Depot or involved union issues, Lane and Calkins do not indicate a different result. The court GRANTS defendant's Motion for Summary Judgment as to the public forum issue and, particularly, the third cause of action.

C. Rule 56(f)

In their supplemental opposition, plaintiffs move the Court for leave to obtain discovery if the Court is inclined to grant defendant's motion. Plaintiffs specifically contend discovery will permit them to gather information on "the square footage of the enterprise, the number of transactions it processes monthly, the complete list of services it provides, the number and nature of the applications submitted for permission to petition in front of its store, and the uses to which the area claimed to be a public forum has traditionally been put."

Federal Rule of Civil Procedure 56(f) permits the Court to "refuse" an application for summary judgment or permit a continuance to permit discovery to be had when it appears "from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." This rule requires affidavits setting forth clearly the particular facts sought. State of California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998). The party must make clear how the information sought would preclude summary judgment. Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986). The failure to comply with Rule 56(f) is a proper basis for denying the discovery request and proceeding to summary judgment. Brae Trans., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986).

References in a memorandum to a need for discovery do not constitute a motion under Rule 56(f). Brae, 790 F.2d at 1443. In this case, plaintiffs have failed to bring a proper Rule 56(f) motion. They have not submitted any affidavit even addressing the need for discovery. Instead, they offer in their supplemental memorandum a one paragraph reference to the general type of facts they would seek in discovery without offering any explanation of how any of the facts sought will impact the applicable balancing test. Plaintiffs had approximately two months prior to the hearing date on the summary judgment motion to bring a 56(f) motion. Their failure to do so is incomprehensible.

D. Other Causes of Action

1. First Cause of Action

Plaintiffs' first cause of action seeks injunctive relief enjoining defendant from enforcing Home Depot's application procedure. Even if the sidewalk adjoining the entrance way into the Home Depot store constituted a public forum, Pruneyard recognized that those who wish to disseminate ideas in such a forum do not have "free rein." Pruneyard, 23 Cal.3d at 910, 153 Cal. Rptr. 854, 592 P.2d 341. Time, place, and manner restrictions still are permissible. See id. at 909, 910, 153 Cal. Rptr. 854, 592 P.2d 341. In order to survive California constitutional scrutiny, such restrictions must be (1) narrowly tailored, (2) serve a significant interest, and (3) leave ample alternative avenues of communication. See Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 364, 93 Cal. Rptr. 2d 1, 993 P.2d 334 (2000).

Plaintiffs' first cause of action alleges defendant has imposed an "unconstitutional restraint." Thus, its success hinges on the constitutional assertion in plaintiffs' third cause of action. In other words, plaintiffs' first cause of action will prevail only if (1) plaintiffs possessed petitioning rights on the area near Home Depot's Main Exit (the Pruneyard issue) and (2) Home Depot's time, place, and manner regulations were unconstitutional. Because the area in front of Home Depot's Main Exit was not a public forum, plaintiffs' suggestion of an "unconstitutional restraint" must fail. Plaintiff has not requested leave to amend. Summary adjudication of the first cause of action is proper.

2. Second and Fourth Causes of Action

Despite the Court's explicit order that the parties address whether the second and fourth causes of action must fail if the third cause of action is dismissed, plaintiffs did not address this issue in their supplemental briefing. They implicitly have conceded this point. Defendant persuasively shows that, based on the facts alleged in the complaint, elements in the second (false arrest) and fourth (intentional infliction of emotional distress) causes of action hinge on the arrest of plaintiffs being unlawful.^[11] Because plaintiff has not proposed any amendment that would save these causes of action, summary adjudication is proper as to these claims.

E. Judicial Notice

The Court may take judicial notice of matters of the public record. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir.1986). The Court GRANTS defendant's request that the Court take judicial notice of Busch v. Ralphs, Los Angeles County Superior Court Case No. SC 05817; Waremart v. Discovery Petition Mgmt. Co., Butte County Superior Court Case No. 12243; Young v. Raley's, Yolo County Superior Court Case No. V97-000076; Lushbaugh v. Home Depot, EC 026533, 2 (Super.Ct.Ca. May 15, 2000); Busch v. Ralphs Grocery Co., Super. Ct. No. SC051874 (Cal.Ct.App. June 15, 2000); and Albertson's, Inc. v. James Young, Nevada County Superior Court Case No. 60716.

IV. CONCLUSION

Based on its finding that no dispute of material fact exists, the Court hereby GRANTS defendant's Motion for Summary Judgment as to all causes of action.

IT IS SO ORDERED.

NOTES

[1] Plaintiffs in their petitioning apparently sought the support of Contra Costa County residents to urge the County Board of Supervisors to adopt a Contra Costa Industrial Safety Ordinance. (Norris Decl. at ¶ 15 and Ex. D).

[2] Although plaintiffs did not adduce any physical evidence of their applications, they did submit a blank copy of a Home Depot petitioning application. In the introduction, the application provides: "Neither the enforcement of these rules nor the conduct of any activity pursuant to these rules shall constitute or be deemed to constitute a dedication of the property to public uses, nor shall these rules be construed or interpreted as an acquiescence or a waiver of the private property rights of Home Depot U.S.A. Inc." (Slevin Decl. at Ex. 15).

[3] Store policy restricts speech activity in front of the Entrance or any of the exits because such activity impedes traffic and poses a safety risk by creating congestion. (Norris Decl. at ¶ 16).

[4] As Trader Joe's Co. v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 86 Cal. Rptr. 2d 442 (1999), noted, Pruneyard held neither that petitioning and free speech activities outweigh private property interests only at large shopping centers nor that such activities can be exercised on any property except for individual residences and modest retail establishments. Trader Joe's, 73 Cal.App.4th at 433, 86 Cal. Rptr. 2d 442.

[5] Pruneyard itself drew attention to both the large volume of individuals passing through shopping centers and the range of amenities offered by such centers.

[6] Lane relied on Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), a case subsequently overruled by Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) as recognized by Hudgens v. NLRB, 424 U.S. 507, 517-18, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976). Thus, defendant disputes Lane's precedential value. As suggested by the earlier discussion of the difference between the constitutional requirements of the California constitution and the First Amendment, the mere fact that Lane is no longer viable in the federal First Amendment setting does not render it useless as precedent for purposes of the California constitutional analysis. The Ninth Circuit recently "reject[ed]" the suggestion that Lane is no longer "good law." Calkins, 187 F.3d at 1090 n.5. Pruneyard specifically noted that the change in federal law had not diminished Lane 's usefulness as precedent for state law. Pruneyard, 23 Cal.3d at 908-9, 153 Cal. Rptr. 854, 592 P.2d 341. Pruneyard then recounted, without passing judgment, that Lane "extended the assurance of protected speech to the privately owned sidewalk of a grocery store." Id. at 909, 153 Cal. Rptr. 854, 592 P.2d 341. At least one California case has determined that this reference in Pruneyard did not denote any holding as to whether the state constitution protects free speech and petitioning rights at private, stand-alone grocery stores. Trader Joe's, 73 Cal.App.4th at 436, 86 Cal. Rptr. 2d 442.

[7] As Justice White observed in a concurring opinion in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980), the California Supreme Court, in Pruneyard, "was dealing with the public or common areas in a large shopping center and not with an individual retail establishment within ... the shopping center." Robins, 447 U.S. at 95, 100 S. Ct. 2035 (White, J., concurring) (emphasis added).

[8] As a further point of distinction, Calkins involved an error by the Ninth Circuit. After discussing Pruneyard, the Ninth Circuit referred to Lane as a case arising "[s]ince then." Calkins, 187 F.3d at 1090. As a result, the Court implicitly read Lane as extending Pruneyard from the shopping center setting to the stand-alone grocery store setting. Lane preceded Pruneyard by approximately ten years. This error may not have impacted the Ninth Circuit's analysis since the court, despite the changes in federal law, rejected the suggestion that Lane was no longer good law.

In addition to its chronological error, Calkins made no mention of Trader Joe's. Although Calkins was decided on August 11, 1999, it was argued and submitted on May 3, 1999. The California Court of Appeals decided Trader Joe's after the May 3, 1999, date but before the August 11, 1999, date. As the Ninth Circuit declared in Calkins, when deciding an issue of state law on which the state's highest Court has not ruled, a federal Court "must predict how the highest state Court would decide the issue using intermediate appellate Court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance." Calkins, 187 F.3d at 1089. This Court has no way of knowing whether the Ninth Circuit considered Trader Joe's prior to rendering its written order.

[9] Home Depot did not post the sign nor could one reasonably conclude it did from reading the sign, which refers potential petitioners to Dana Butcher Associates. In fact, the sign in capital letters instructs potential petitioners, "PLEASE DO NOT CONTACT ANY OF THE STORES." Plaintiffs have not explained why Home Depot should be charged with expanding the scope of its invitation to the public as a result of the third party property manager's sign.

[10] Slevin refers to "signs" but provides evidence of only one sign.

[11] "The tort of false imprisonment is the non-consensual, intentional confinement of a person without lawful privilege." Molko v. Holy Spirit Ass'n for the Unification of World Christianity, 46 Cal. 3d 1092, 1123, 252 Cal. Rptr. 122, 762 P.2d 46 (Ca.1988) (internal quotation and citation omitted). Plaintiffs have not articulated any theory according to which Home Depot lacked a lawful privilege in removing plaintiffs from its private property after plaintiffs persisted despite warning in activity prohibited by the store and unprotected by the California constitution.

The tort of intentional infliction of emotional distress requires outrageous conduct by the defendant. Newby v. Alto Riviera Apartments, 60 Cal. App. 3d 288, 131 Cal. Rptr. 547, (Cal.Ct. App.1976). Outrageous conduct is conduct so "extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 499 n. 5, 86 Cal. Rptr. 88, 468 P.2d 216 (Ca.1970) (en banc) (denoting this approach as the Restatement view). Again, plaintiffs have not advanced any theory under which Home Depot removing plaintiffs from its private property after plaintiffs persisted despite warning in activity prohibited by the store and unprotected by the California constitution is outrageous.