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Court of Appeal, Fourth District, Division 2, California.

Roger Jon DIAMOND et al., Plaintiffs and Appellants, v. Frank BLAND et al., Defendants and Respondents.

Civ. 12497.

Decided: July 10, 1973

Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants. Lederer, Fox & Grove, by Lawrence M. Cohen, Chicago, Ill., and Lonergan, Jordan, Gresham & Varner, by Allen B. Gresham, San Bernardino, for defendants and respondents.


In 1969, plaintiffs filed an action in the Superior Court of San Bernardino County. In it they alleged that the defendants refused to permit them the use of the premises of the Inland Center (a privately owned shopping center) to solicit signatures on their initiative petition and to disseminate information in connection therewith. The trial court denied both preliminary and permanent injunctions.

On appeal, this court affirmed the trial court. (Diamond v. Bland, 8 Cal.App.3d 58, 87 Cal.Rptr. 97.) The Supreme Court granted a hearing and reversed the trial court. (Diamond v. Bland, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733.) Certiorari was denied by the United States Supreme Court, 402 U.S. 988, 91 S.Ct. 1661, 29 L.Ed.2d 153. In 1971, the trial court granted the permanent injunction.

On June 22, 1972, the United States Supreme Court filed its opinion in Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. Lloyd involved an almost identical factual situation,1 and the court reached a conclusion diametrically opposite to that of the Supreme Court of this state in Diamond. The parties then returned to the trial court which, on the authority of Lloyd, dissolved the permanent injunction. The parties again appeal.

The facts and issues are set forth in Diamond v. Bland, supra, and need not be repeated here. Based upon almost identical facts, Lloyd held that there was no basis for injunctive relief inasmuch as plaintiffs' First Amendment activities ‘had no relation to any purpose for which the center was built and being used.’ (Lloyd, supra, 407 U.S. at p. 564, 92 S.Ct. at p. 2226, 33 L.Ed.2d at p. 140.) Lloyd isolated three key factors in determining whether an owner's property rights must yield to permit First Amendment activities: (1) the private property has assumed ‘to some significant degree the functional attributes of public property devoted to public use’ (Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 546, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122, 128–129; (2) no adequate alternative avenues of communication exist (Lloyd, supra, 407 U.S. at p. 567, 92 S.Ct. at p. 2228, 33 L.Ed.2d at p. 141); and (3) a relationship between the purpose of the First Amendment activities and the business of the shopping center. (Lloyd, supra, 407 U.S. at p. 564, 92 S.Ct. at p. 2226, 33 L.Ed.2d at p. 140.) Here, the Inland Center is almost identical to the Lloyd Center and thus has not become the functional equivalent of public property under Lloyd; the invitation to the public is limited in nature. The circulation of the initiative petition was not directly related to the purpose for which the Inland Center properties were being used (Diamond v. Bland, supra, 3 Cal.3d at p. 663, 91 Cal.Rptr. 501, 477 P.2d 733), and plaintiffs have available to them effective alternative sites for their activities. (Ibid., at p. 662, 91 Cal.Rptr. 501, 477 P.2d 733.)

Plaintiffs attempt to avoid the impact of Lloyd on the following grounds:

(1) The trial court failed to explore the alternative means and locations whereby they could have effectively accomplished their petition circulation objectives, rejecting their offer of proof on this issue. However, the record of the trial court reflects substantial support for the court's conclusion that the plaintiffs had alternatives available. Indeed, the Supreme Court in Diamond said, ‘Plaintiffs in the instant case cannot claim that effective alternative sites for their First Amendment activities are unavailable. If plaintiffs are barred from circulating their initiative petitions in the Inland Center, they are free to do so in the public streets and sidewalks in the surrounding community.’ (3 Cal.3d at p. 662, 91 Cal.Rptr. at p. 506, 477 P.2d at p. 738.)

(2) The failure of the United States Supreme Court to grant certiorari in Diamond in some way placed a judicial stamp of approval on that case. He cites no authority for such a startling contention, nor are we aware of any. Denial of certiorari is meaningless, especially where the court granted it in a virtually identical case and chose that case to expose its opinion.

(3) Lloyd is limited to covered mall areas and not exterior parking lots. No such distinction is to be found in Lloyd.

(4) Petition circulating is to be distinguished from the distribution of handbills (Lloyd), or solicitation (Central Hardware Co.). However, the Supreme Court said in Food Employees v. Logan Valley Plaza, 391 U.S. 308 at p. 315, 88 S.Ct. 1601 at p. 1607, 20 L.Ed.2d 603, 610, that the distinction between handbilling and picketing ‘is immaterial so far as the question is solely one of right of access for the purpose of expression of views.’ And in Homart Development Co. v. Fein (R.I.), 293 A.2d 493, fn. 1, the Rhode Island Supreme Court held that Lloyd was dispositive of the appeal in a case which involved nominating petitions. The concurrence of Chief Justice Roberts of that court is based solely on the compulsion of Lloyd; his opinion makes clear that in the absence of Lloyd he would have decided the case differently. We fail to find any meaningful distinction between petition circulating and handbilling.

(5) Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 and Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 ‘severely weaken’ Lloyd. Hardly, Mosley and Grayned involve a totally different issue, i. e., the need to permit free expression of ideas in public places.

Lloyd involves no factual distinction from the instant case and is dispositive and controlling.

Plaintiffs contend that even though the United States Supreme Court may have overruled the Supreme Court of this state, that until the Supreme Court of this state expressly overrules its own holding in Diamond v. Bland, supra, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733, that case is binding on the lower court and on this court, citing Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.

However, in view of the changed legal position, the superior court clearly had authority to dissolve its prior injunction. ‘This is so because the decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon a proper showing, to modification or dissolution by the court which rendered it.’ (Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 94–95, 113 P.2d 689, 690; see also Union Interchange, Inc. v. Savage, 52 Cal.2d 601, 605, 342 P.2d 249.) The trial court properly applied the law as stated in Lloyd v. Tanner in dissolving the injunction.

Judgment affirmed.

In my opinion Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 is not dispositive of the case at bench. I shall try to state briefly why.

From time immemorial the market place, whether it be the country store of a small village or the business district of a metropolis, has been one of the traditional forums for discussion of public issues and communication of ideas. In recent years huge suburban regional shopping centers serving virtually all the family needs of inhabitants of surrounding cities and communities have largely displaced traditional downtown shopping districts. Immunizing these huge commercial centers from First Amendment activities would result in substantial diminution of effective forums of communication. It would leave the mass media, realistically accessible only to the wealthy, as the only effective means of communicating with the millions across the land who by virtue of these centers rarely find it necessary to visit downtown districts. Those individuals and groups without financial resources would be left to deserted and decaying downtown areas; hardly effective forums for communicating to that segment of the public sought to be reached. These, I believe to be irrefutable facts of contemporary American life.

The majority would interpret the 5 to 4 Lloyd decision nevertheless to mean that owners of these huge shopping centers may now declare their premises off limits to all First Amendment activities other than in exceptional situations where the message sought to be communicated is directly related to the business of the shopping center. I disagree with that interpretation.

While Lloyd rejected the broad implication of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, and Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, that private property serving the ‘functional equivalent of a business [block]’ must for First Amendment purposes be deemed the equivalent of public property, it did not at the same time adopt a doctrinaire position that all First Amendment activities except those directly related to the purpose for which the property is used may be barred. Instead, the court attempted to formulate principles whereby competing claims of property rights and First Amendment rights may be accommodated when privately owned property assumes ‘to some significant degree the functional attributes of public property devoted to public use,'1 mindful of the special solicitude courts have properly accorded First Amendment rights. It is in the context of this central theme of Lloyd that we must interpret the court's discussion of the bases upon which it distinguished Logan Valley.

Lloyd noted that in Logan Valley the message sought to be communicated by the pickets related to the business of a supermarket within the shopping center and that there was no effective alternative means of communicating the message to the intended audience. Those two factors, the court observed were absent in Lloyd. It pointed to the fact that handbills protesting the draft and the Vietnam war had no direct relationship to the business of the shopping center. Moreover, according to the court, the leaflets could have been distributed to entering and departing motorists and pedestrians from public sidewalks and streets adjacent to the center, noting that in moving in and out of the private parking lots ‘automobiles are required by law to come to a complete stop.’ (Lloyd Corp., Ltd. v. Tanner, supra, 407 U.S. 551, 567, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131, 141.) The court then concluded: ‘It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech. . . . (Emphasis supplied.) (Lloyd Corp., Ltd. v. Tanner, supra, 407 U.S. 551, 567, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131, 141–142.)

Nowhere in Lloyd does the court state that absence of a direct relationship between the message and the business of the center provides an independent basis for barring First Amendment activities. Although the opinion is admittedly ambiguous in this respect, such a mechanical rule would be inconsistent with the balancing of interest theory espoused by the court. To make relationship alone dispositive would result not in an accommodation of conflicting rights but a preference of property rights over First Amendment rights. It would excuse private property owners from the commands of the First and Fourteenth Amendments. Until private property assumes ‘to some significant degree the functional attributes of public property devoted to public use,’ it cannot be subjected to the demands of the First and Fourteenth Amendments and the constitutional issue of accommodation does not even arise. (Central Hardware Company v. N.L.R.B., supra, 407 U.S. 539, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122, 128–129.) But, as I read Lloyd and Central Hardware, when private property displaces to a significant degree the normal functions of a business district as it did in Logan Valley, Lloyd, and the case at bench, the property owner is subject to the ‘commands of the First and Fourteenth Amendments' and there must be an accommodation of private property and First Amendment rights.2 As I understand Lloyd, the line which is drawn should protect the interest of the property owner without, however, abridging the First Amendment right to communicate with the people drawn to the property. First Amendment claims come into play when private property displaces the normal functions of a business district because the affirmative maintenance of effective forums for political discussion and exchange of ideas is essential to the preservation of a free society.3 In determining when property interest must yield, the heart of the inquiry should therefore be whether alternative effective means of communication exist; the relationship of expressive activity to the purpose to which the property is devoted should be relevant only to the extent it bears upon the issue of availability of effective alternative means of communicating the message to the intended audience.4 To make the right of access turn solely on message content would result in substantial abridgement of the right of free speech. It would not only withdraw an important forum for communication of ideas, but inherent in such a rule would be the danger that only such expressive activity will be permitted as pleases the owner.

Unlike distribution of handbills, signatures to an initiative petition cannot be effectively solicited or obtained on a public sidewalk adjacent to the entrance of a shopping center while cars momentarily stop as they enter and leave.5 Nor are other suggested means effective alternatives. A massive house-to-house drive is an alternative available only to well-financed groups. It is also evident, as our Supreme Court observed in Diamond v. Bland, 3 Cal.3d 653, 660, footnote 2, 91 Cal.Rptr. 501, 505, 477 P.2d 733, 737, ‘that mass media are particularly inappropriate . . . no one has suggested how signatures can be obtained on initiative petitions by means of newspapers, radio or television.’ The right of initiative reserved to the citizens of this state under our state Constitution6 ‘is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure in spirit as well as letter.’ (McFadden v. Jordan, 32 Cal.2d 330, 332, 196 P.2d 787, 788.) ‘The desirability of having initiative measures . . . reach the ballot without delay or excessive expenditures of time, money, and effort is a factor of which the courts are ever mindful.’ (Gage v. Jordan, 23 Cal.2d 794, 799, 147 P.2d 387, 390.7 ) To permit owners of regional shopping centers to bar solicitation of signatures to an initiative petition on their premises would result in a substantial infringement of the exercise of the initiative power. One can hardly conceive of a more important political right—other than the right of franchise itself—than the right of citizens to participate directly in the legislative process of government.8 Requiring property rights to yield to the exercise of that right subject to reasonable regulation is consistent with the principle of accommodation announced in Lloyd Corp., Ltd. v. Tanner, supra, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131.

I would reverse the order of the court below with directions to reinstate the injunction heretofore issued under the authority of Diamond v. Bland, supra, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733.


1.  The California Supreme Court in Diamond v. Bland, in citing Lloyd (then at the trial level) (D.C., 308 F.Supp. 128) stated that Lloyd was based upon facts ‘almost identical’ with those here. (3 Cal.3d at p. 660, 91 Cal.Rptr. 501, 477 P.2d 733.)

1.  In Central Hardware Company v. N.L.R.B., 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, the court rejected the asserted First Amendment claim on the ground the parking lot of the retail hardware store was not the equivalent of a ‘public municipal facility’ for First Amendment purposes. The court declared: ‘Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . .’ (407 U.S. 539, 547, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122, 128–129.) It distinguished Logan Valley on the ground the private property there involved consisted of ‘a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal ‘business block.”

2.  Lloyd did not, as the majority in the case at bench suggest, reject the district court's finding that the Lloyd shopping center served the functional equivalent of a public business district. Indeed, under the principle enunciated in Central Hardware. absent that finding the Supreme Court would not have been faced with the constitutional issue raised by the competing claims of First Amendment and property rights.Our high court has held that a shopping center is subject to the Unruh Civil Rights Act (Civ.Code, § 51) and may not arbitrarily exclude a customer from its premises. (In Re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992.) The court's comment concerning the public functions performed by shopping centers is particularly apposite to the case at bench; it stated: ‘In undertaking to provide the necessities and amenities of life, the shopping center performs an important public function. In some areas the public must rely upon the shopping center as its sole source of food, clothing and other commodities. If a shopping center arbitrarily denies individuals the right to purchase essentials, these people may have no practicable alternative source of supply. Our modern society has become so interdependent and interrelated that those who perform a significant public function may not erect barriers of arbitrary discrimination in the marketplace.’ (3 Cal.3d 205, 218, 90 Cal.Rptr. 24, 32, 474 P.2d 992, 1000.)

3.  Our Constitution is premised on the theory that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market . . .’ (Holmes, J., dissenting in Abrams v. United States, 250 U.S. 616, 624, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173, 1180.) ‘[O]pportunity for free political discussion’ is the foundation of constitutional government. (De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278, 284.)

4.  Commentators all express concern over the lack of clarity in Lloyd concerning the independence or interdependence of the two factors on which it distinguished Logan Valley and urge that under the accommodation theory advanced, the central inquiry should be the existence of alternatives. (The Supreme Court, 1971 Term, 86 Harv.L.Rev. 52, 122; Lloyd Corp. v. Tanner: A Shopping Center Open For Business But Not For Dissent, 25 Maine L.Rev. 131; Free Speech In The Marketplace—Accommodating ‘Speech Plus' Activity And Property Rights, 44 U. of Col.L.Rev. 259; Shopping Centers And The ‘Quasi-Public’ Forum, 51 N.Car.L.Rev. 123.)

5.  I recognize that in Homart Development Company v. Fein, 293 A.2d 493, the Supreme Court of Rhode Island held that Lloyd Corp., Ltd. v. Tanner, supra, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, permitted the owner of a large shopping center to bar solicitation of signatures on nomination petitions. The trial judge in that case found there were numerous public business districts, parks, beaches, as well as other unrestricted private shopping centers where signatures could be solicited. The Supreme Court, however, failed to deal with what I believe should have been the crucial inquiry—whether the alternatives were effective and adequate. Such an inquiry may well have revealed the existence of effective alternative means of securing signatures.

6.  California Constitution, article IV, sections 1, 22, 24 and 25.

7.  First petitions with signatures must be filed with the county clerk not later than 90 days from the date the Attorney General delivers or mails to the proponents a summary of the proposed initiative measure. (Elec.Code, § 2507.) No initiative may be placed on a statewide special election ballot which qualifies later than 131 days before the election. (Elec.Code, § 3508.)

8.  The case at bench might well be rested on this independent state ground if our Supreme Court be so inclined. (See dissenting opinion of Chief Justice O'Connell of the Oregon Supreme Court in Lenrich Associates v. Heyda, 504 P.2d 112, 119.)

GARDNER, Presiding Justice.

KERRIGAN, J., concurs.