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LAGUNA PUBLISHING COMPANY v. GOLDEN WEST PUBLISHING CORP

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

LAGUNA PUBLISHING COMPANY, etc., Plaintiff and Appellant, v. GOLDEN WEST PUBLISHING CORP., a California Corporation, Carlton J. Smith, Richard J. Birchall, and Golden Rain Foundation of Laguna Hills, a California Corporation, Defendants and Respondents.

Civ. 20650.

Decided: September 04, 1980

W. Mike McCray, Newport Beach, for plaintiff and appellant. Richards, Watson, Dreyfuss & Gershon, Glenn R. Watson, Mitchell E. Abbott, Kinkle, Rodiger & Spriggs, Los Angeles, and Larry T. Pleiss, Mission Viejo, for defendants and respondents Golden West Pub. Corp., Carlton J. Smith and Richard J. Birchall. William F. Price, Newport Beach, for defendant and respondent Golden Rain Foundation of Laguna Hills.

The plaintiff Laguna Publishing Company was denied permission by defendant Golden Rain Foundation of Laguna Hills (hereinafter Golden Rain) to distribute by live carrier its unsolicited, give-away newspaper, the Laguna News-Post, to the private residences of Leisure World, a walled and gated, retirement-type, wholly private, residential community. Golden Rain, a non-profit corporation, owns all the streets, sidewalks, and other common property within the boundaries of Leisure World for the benefit of its residents who, by reason of owning homes within Leisure World, are all members of Golden Rain. Plaintiff was aggrieved by the exclusion of its newspaper from Leisure World, for permission had been accorded to defendant Golden West Publishing Corporation (hereinafter Golden West) to distribute its give-away newspaper, the Leisure World News, to the private residences of Leisure World, purportedly because Golden Rain, by means of a single agreement, had “subscribed” to the Leisure World News on behalf of the approximately 20,000 residents of Leisure World.

In the litigation which followed the exclusion of plaintiff's newspaper from Leisure World, many individual and corporate defendants were named, but only Golden Rain and Golden West were around at the end when judgment was rendered. The fourth amended complaint upon which the case went to trial undertook to plead several theories of entitlement to relief. The plaintiff alleged that Golden Rain and Golden West had engaged in a conspiracy in restraint of trade in violation of the Cartwright Act and that Golden West had engaged in certain conduct in violation of the Unfair Trade Practices Act. These theories were tried by a jury which resolved them against the plaintiff.

Otherwise, Golden West cross-complained against plaintiff and its principal Vernon R. Spitaleri (hereinafter cross-defendants), alleging in turn the latters' violations of the Cartwright Act, the Unfair Trade Practices Act, in addition to conduct amounting to unfair competition under the common law. These theories of relief were also tried to the jury which awarded Golden West $5,000 compensatory and $50,000 exemplary damages on its cross-complaint.

Yet otherwise and of central importance here, the plaintiff asserted in its fourth amended complaint that the exclusion of its newspaper from Leisure World constituted a deprivation of its free speech and free press rights secured under both the state and federal Constitutions, with the result that it was entitled both to an injunction to end such exclusion and to money damages either under the federal civil rights statute, 42 United States Code section 1983, or on the basis of a self-executing modility under article I, section 2, of the California Constitution.

Procedurally, the manner in which the constitutional issues were presented and resolved was somewhat complex. Nine months before trial, the court granted a defense motion that certain issues of fact be deemed without substantial controversy. They are as follows:

“1. Leisure World at Laguna Hills . . . is a private residential housing project, consisting of dwelling units, streets, maintenance and other facilities.

“2. All of the real property within Leisure World is privately owned and is used only for private purposes.

“3. Leisure World is not open to the general public.

“4. Entry into Leisure World is restricted to authorized persons who must pass through gates guarded by private security guards.

“5. Since the inception of Leisure World in 1964, only the owners or occupants of real property within Leisure World or their invitees have been authorized to enter Leisure World.

“6. There are no business districts or commercial facilities or areas such as stores, shopping centers, office buildings or the like within Leisure World, nor have there ever been any such districts, areas or facilities therein.

“7. Beginning in late 1967, and continuing to date, plaintiff has been denied permission to enter Leisure World for the purpose of delivering its newspapers by carrier boy on an unrequested basis.”

Item 8 argued as a part of such motion, to the effect that exclusion of the Laguna News-Post from Leisure World did not violate plaintiff's constitutional rights, was excepted from the order granting the motion. However, the court did grant a later defense motion for an order that plaintiff refrain in the presence of the jury from making any reference to its claim of free speech abridgement.

The net legal result of these pretrial orders had the same effect as sustaining a general demurrer to plaintiff's theory of relief based upon a claimed violation of its constitutional rights of free speech and free press; hence the limitation of the jury trial only to those issues arising under the respective allegations characterized as violations of the Cartwright Act and the Unfair Trade Practices Act.

After the jury brought in its verdict, the court, sitting in equity and not withstanding the pretrial orders noted, took further evidence on plaintiff's application for an injunction and then denied such application. In support of that denial, it made extensive findings of fact and conclusions of law. In this connection, it is appropriate to observe that in terms of extrinsic, observable events there was little if any conflict in the evidence. The differences between the parties lay in their views of the legal consequences of those events which all agree happened, and so the findings add little to aid in our decisional task in terms of the customary office fulfilled by findings of fact as part of a record on appeal.

The plaintiff and the cross-defendants have appealed from the judgment, and, in terms of a brass-tacks look at the appeal, we shall make a further observation intended to disclose the predicate upon which the decisional goal has been pursued. It is this. Although the plaintiff and the two defendants have briefed and argued for and against the appeal largely in lofty constitutional pronouncements having to do with the free speech rights of the plaintiff, on the one hand, and the property rights of the private homeowners represented by Golden Rain, on the other, we are satisfied that this case boils down to a dispute over money, more exactly a struggle between two competing newspaper publishers for the advertising dollars spent by businesses seeking customers in the marketing areas of Southern Orange County where the competing newspapers are circulated.

THE FREE SPEECH ISSUE

I

The complexity of the procedures in the trial court by which the constitutional issue was presented and resolved necessarily has resulted in prolix assignments of error in connection with such issue. The plaintiff contends that the trial court's ruling of December 5, 1977, which precluded it from arguing or in any way adverting in the presence of the jury to its claim of constitutional rights abridgement was improper because Golden Rain's exclusion of plaintiff's newspaper from Leisure World was tantamount to state action which operated to restrict free speech. This contention imports two grounds upon which the exclusion is characterized as impermissible state action: (1) Leisure World is the legal equivalent to a municipality under the “company town” cases; (2) Leisure World's development and construction were accomplished only as a consequence of federally guaranteed financing.

Plaintiff contends that the court compounded the error of its ruling by means of amplifying remarks made at the time it granted the defense motion above noted in which remarks it stated that there was no right to money damages in any event because the state constitutional right abridgement, if there were one, is not “self-executing.” The plaintiff in its opening brief argues further that the error of December 5, 1977, was also compounded because plaintiff was not allowed to introduce evidence or to argue to the jury a theory of relief based upon a “conspiracy to deprive plaintiff of (its) constitutional rights (of free speech) as overt acts” such as to qualify as a violation of the Cartwright Act.

In our view, it more adequately frames the issue to ask if plaintiff's free speech and free press rights, secured under either the federal or state Constitutions, were abridged by the actions of Golden Rain in refusing to allow unsolicited, live carrier distribution of plaintiff's newspaper, the Laguna News-Post, to the residences in Leisure World. Should we conclude that such rights were abridged, then it remains to determine the nature and extent of the relief to which the plaintiff is entitled to redress the deprivation.

II

It is clear from the record that the trial court at the time of the ruling of December 5, 1977,1 was of the view, on the pleadings, and in light of the seven factual items earlier designated as being without substantial controversy, that plaintiff was not entitled to money damages even if the court were to rule that there had been an abridgement of plaintiff's constitutional free speech, free press rights; hence the prohibition of any references thereto in the presence of the jury.

Otherwise, the trial court reserved its ruling on any right to an injunction until after the jury phase of the trial had been concluded. That the trial court eventually denied plaintiff's application for an injunction, which would have forced Golden Rain to cease its exclusion of the Laguna News-Post from unsolicited, live carrier distribution within Leisure World, necessarily indicates that nothing which the trial court received in the way of evidence during the five-month, jury trial or during the additional period thereafter that it took evidence operated in its view to demonstrate any deprivation of plaintiff's constitutional rights.

This observation is confirmed by certain of the trial court's conclusions of law reached after promulgating 22 paragraphs of findings extending to over a dozen pages of the record. Such conclusions are: (a) “Plaintiff has no federal or state constitutional right to enter Leisure World of Laguna Hills to distribute its newspaper by carrier to occupants of dwelling units therein without any request or subscription therefor by such occupants”; (b) “Plaintiff has no federal or state constitutional right to enter Leisure World of Laguna Hills to distribute its newspapers by carrier to the occupants of dwelling units without any request of subscription therefor by such occupants when Golden Rain Foundation of Laguna Hills, acting within the scope of its authority, in behalf of its members, has denied Plaintiff permission to enter to make such distribution.”

In our view, those conclusions are wrong, and plaintiff, strictly on the facts of this case, is entitled to an injunction which will entitle it to distribute its newspaper within Leisure World upon the terms and conditions which will later be set out.

III

What then are the facts which demonstrate that plaintiff's free speech and free press rights were abridged when it was denied permission by Golden Rain to distribute its unsolicited, give-away newspaper to the residences of Leisure World? Our factual recitation of what we see to be significant in these happenings of course starts with the seven items settled nine months before trial as being without substantial controversy. They are footnoted here for convenient reference.2 Supplementing the seven items noted, we shall recap those additional matters of fact which we deem germane to the constitutional issue.

The entire residential community of Leisure World, consisting of both condominiums and cooperative housing units is comprised of roughly contiguous groups of residents sometimes referred to as “mutuals.” These mutuals are also organized as non-profit corporations and are responsible for the actual maintenance and preservation of the residential property within their respectively defined areas. As already noted, Golden Rain owns all the other areas within Leisure World consisting of the streets and sidewalks, the sewer system, the several clubhouses, two golf courses, together with the gates and gatehouses. In its turn, Golden Rain is responsible for the maintenance and upkeep of these non-residential areas for the benefit of all the residents of Leisure World.

To accomplish their respective maintenance and upkeep objectives, both the mutuals and Golden Rain contracted with yet another legal entity to perform the actual work functions. From 1964 to the end of 1972 the entity with such contracts was the Leisure World Foundation (hereinafter LWF), and, since then, Professional Community Management, Inc.

Although not a prescribed part of its duties under its contract with Golden Rain, LWF from the outset of its management of Leisure World published and delivered, unsolicited, to each residence therein a community-type newspaper under the banner of the Leisure World News. LWF continued to do this until it sold the Leisure World News to defendant Golden West, initially incorporated as Birchall, Smith & Weiner, Inc., by the young men, who, as employees of LWF, had performed the functions necessary to get out the paper, including the sale of advertising.

During the early years of its publication by LWF, the Leisure World News was a losing effort financially. Some of the costs of printing and distributing the paper were defrayed by the sale of advertising, but in the earlier years of its publication the larger share of such cost was borne as a direct expense LWF. As time passed, this direct expense was increasingly offset, but even as late as 1967 the deficit for an operation which brought in $138,390 was still $6,055, reflecting expenses of $144,445.

In 1967, the two young men who had been hired by LWF to perform the direct task of putting out the Leisure World News discussed with Edward Olsen, President of LWF, the possibility, while continuing to work for LWF, of their being accorded permission by their employer to publish for their own account a so-called “shopper” for distribution to persons outside Leisure World. This idea occurred to these young men because of the difficulties they had encountered in selling advertising in the Leisure World News, a paper with a circulation limited only to residences within Leisure World.

Permission to launch the new venture was granted, and Carlton Smith and Richard Birchall commenced publication of the News Advertiser for circulation outside Leisure World. Smith and Birchall were allowed to maintain an office for the News Advertiser in the same space provided them by LWF in connection with their duties in putting out the Leisure World News. Advertising in the News Advertiser was sold to the same businesses as those who bought space in the Leisure World News. This advertising was sold at the same time by the same salesmen who represented the Leisure World News. Sales by the fledgling paper were facilitated because it sold its advertising at lower “pick-up” rates to any business which first advertised in the Leisure World News.

Because of this arrangement, one which at once enabled a much broader circulation to the given advertiser through the medium of two publications, the Leisure World News was able to raise its rates to advertisers and also to win the preference of selected merchants wishing to distribute “pre-prints” or “inserts” in a newspaper. As a consequence of these circumstances, the Leisure World News' gross revenues, aside from the News Advertiser, by calendar 1971 had grown to $318,616, yielding a net of $44,630. During this interval of time, i. e., from 1967 through 1971, the Leisure World News was delivered unsolicited to all residences within Leisure World by LWF with the full knowledge of and without any objection from Golden Rain. In addition, such deliveries were carried out with a tacit understanding with Golden Rain that no competing unsolicited, give-away newspaper could be distributed within Leisure World except by mail.

The impact of the low, pick-up rates offered in the News Advertiser3 for those who had first bought advertising in the Leisure World News was substantial upon competing newspapers of the same kind circulated in Southern Orange County. As a consequence, a meeting was arranged between publishers of three of the area's competing newspapers, including plaintiff, on the one side, and Edward Olsen of LWF on the other. The basic complaint voiced to Mr. Olsen was that Leisure World's management was subsidizing the News Advertiser while at the same time refusing to allow its competitors inside Leisure World except by mail. Olsen responded to such complaint by asserting that this policy of LWF had been adopted and was being followed to allow LWF to recoup the losses it had suffered during the earlier years in publishing the Leisure World News.

Beginning in 1972 there was a series of letters and other communications between Birchall, Smith & Weiner, Inc., on the one hand, and LWF on the other, the latter being represented by Edward Olsen the president, Otto Musch an accountant, and William Price an attorney. No good purpose would be served here to summarize all of the steps and the numerous communications utilized to develop a “record” in the corporate minutes of the two entities. It is enough to state that the end result was that Birchall, Smith & Weiner, Inc., purchased from LWF the Leisure World News for $48,000. This price was agreed to be paid at $1,000 per month for only so long as the buyer elected to continue with publication of the newspaper, or until the 48 monthly payments had been made. Moreover, Olsen and Musch ended up with 51 percent of the stock in Birchall, Smith & Weiner, Inc., for the minimal payment of $3 each. It was understood that Olsen's services to the buyer (now defendant Golden West) would take the form of assuring that the Leisure World News would enjoy exclusive unsolicited carrier delivery within Leisure World.

Despite the net of $44,630 in calendar 1971 as noted, which accrued even though the Leisure World News was carrying certain of the expenses of the newspaper published by Birchall, Smith & Weiner, Inc., the record reflects, out of the mouth of the president of LWF, that LWF realized and was well aware that if the Leisure World News could not be distributed inside Leisure World on an unsolicited basis it would cease to be profitable. More particularly, Edward Olsen testified concerning the agreement to sell the Leisure World News to Birchall, Smith & Weiner, Inc., “that if the Leisure World News could not be distributed inside Leisure World on a permissive basis, that Leisure World News would have no value . . .”

Reflecting the overall prosperity which these arrangements made possible for Birchall, Smith & Weiner, Inc., whereas its gross for calendar 1971 was $140,830, for 1972 it was $559,112.

Otherwise, by the end of 1972 Olsen and Musch had organized another corporation and had entered into contracts with the various mutuals and with Golden Rain to take over all the management functions performed up to that time by LWF for the residents of Leisure World. This new corporation as earlier noted is known as the Professional Community Management Corporation.

During this same time the pressure continued to mount from other publishers, including the plaintiff, to gain access to Leisure World for unsolicited carrier delivery. Under date of March 30, 1973, a written agreement was entered into between Golden Rain and Birchall, Smith & Weiner, Inc. (by then owned 51 percent by the same persons who owned an interest in the management company servicing Leisure World4 ), which provided that Golden Rain would “subscribe” to the Leisure World News on behalf of all the residents of Leisure World. This subscription covered over 10,000 copies per week at an annual rate of $3,600. As a consequence, the unsolicited carrier delivery of the Leisure World News to all residences of Leisure World continued as before. However, a representation was then made to the competition that the Leisure World News was being delivered in compliance with the rules and regulations of Golden Rain which required that newspapers could only be delivered by carrier within Leisure World to subscribers. Nevertheless, the record fails to disclose that any resident of Leisure World ever sought the “subscription” agreement or even knew of its existence.

More particularly, as stated in plaintiff's opening brief, “(t)he Defendants never asked permission of the residents to allow BIRCHALL, SMITH & WEINER, INC. to distribute and the record is completely void of any evidence which showed that (even) one resident of LEISURE WORLD OF LAGUNA HILLS ever requested that the LEISURE WORLD NEWS be delivered to them over the period of 1965 through the time of trial.”

Otherwise, although the board of directors of Golden Rain, elected by the residents of Leisure World, had authority to enter into the agreement to “subscribe” to the Leisure World News for the benefit of the residents of Leisure World and then give the newspapers away to those residents, the record nowhere discloses that there was ever communicated to any resident of Leisure World that there was a formal policy or rule in effect providing that no newspaper could deliver its paper to anyone within Leisure World except a paid subscriber.

In any event, under this arrangement, the gross advertising revenues of Birchall, Smith & Weiner, Inc., which after 1972 published the Leisure World News, grew from $559,112 in 1972 to $1,873,204 in 1977.

In May of 1973, the plaintiff's general manager sent a letter to the presidents of each of the mutuals in Leisure World as follows: “Last November the News-Post submitted a request to the management of Leisure World to be allowed permission to distribute the News-Post by carrier in Leisure World. We were promised that each mutual board would be consulted at their December meetings and we would have an answer within a month. (P ) After a luncheon with Robert Price and several telephone inquiries, we were told late in March that our request was denied. Further inquiries have indicated that directors of the various mutuals have never been made aware of our request.

We feel the management of Leisure World would prefer not to have an independant local newpaper distributed in Leisure World. Therefore they have made it as difficult as possible for us to distribute our newspaper, and we must go to the considerable expense of mailing to our readers. (P) The News-Post has published news stories that the management would prefer not come to the attention of the residents. However, we do not feel the residents of Leisure World want someone else to determine what they might read. It is unfair and discriminatory to deny to one newspaper a privilege that is granted to another, even if the other newspaper can be controlled. (P) We request that your mutual board take our request under consideration. I would be glad to appear before your board to answer any questions your directors might have. We believe their judgments are more representative of your residents and less influenced by the pressures of management. (P ) I will be anxious for your reply by mail or phone. All we want is a fair shake.“

In reply thereto the then president of Golden Rain wrote some four months later, “(u)nder date of May 11, 1973, you sent a letter to the Presidents of all Mutual Corporations within the community of Leisure World, Laguna Hills. Since the subject matter of your letter relates to the community as a whole, all recipients of your letter are replying to this letter. (P ) Please be advised that existing regulations have been, since inception of Leisure World and remain so at the present time, that delivery of newspapers within the community can be made by your company, providing you abide by the community's rules, which presently include the privilege extended to your newspaper to have carriers deliver copies to each and all of your subscribers. (P ) You are therefore permitted to deliver newspapers within Leisure World so long as you abide by the above regulation.”

The letter was also signed by the presidents of 11 of the mutuals. The position of Golden West and Golden Rain, maintained from the time of the agreement between Golden Rain and Birchall, Smith & Weiner, Inc., was that carrier delivery of the Leisure World News to every residence in Leisure World was permitted by Golden Rain because each such residence was regarded as a paid “subscriber” thereto by reason of the March 30, 1973, agreement noted earlier.

However, we are constrained to note that there was a period of at least six years, i. e., from 1967 to 1973, during which there was no “subscription” agreement and during which the Leisure World News enjoyed a live carrier circulation monopoly of give-away type newspapers within Leisure World to the exclusion of the Laguna News-Post and other similar publications. This monopoly was instituted and enforced by LWF, the publisher of the Leisure World News, while LWF had a management contract with Golden Rain which apparently well knew what was going on and suffered it to continue. We find it significant, after the publication of the News Advertiser utilizing pick-up rates began to pinch the competition, that it was Edward Olsen, President of LWF, and not someone from Golden Rain with whom a representative of plaintiff met in an effort to break the monopoly. Moreover, it was Olsen who stated that the exclusive access allowed the Leisure World News was a policy explicitly adopted by LWF to recoup its earlier losses sustained in publishing the Leisure World News. In this connection, while Golden Rain may have owned the streets and sidewalks within Leisure World, it was LWF which employed the security personnel which enforced the exclusion it had instituted and carried on with no exception taken thereto by Golden Rain.

In any event, soon after the letter last quoted above this litigation was begun.

To summarize, then, it emerges clearly from the foregoing synopsis that in the first instance, i. e., from 1964 up to May 1, 1972, when the management company, LWF, sold the Leisure World News to defendant Golden West (then Birchall, Smith & Weiner, Inc.), that LWF, with the tacit concurrence of Golden Rain, distributed the Leisure World News to all residences within Leisure World by live carrier on an unsolicited basis. At the same time, LWF, with the tacit concurrence of Golden Rain, excluded all other give-away type newspapers, including plaintiff's, except those to which the residents of Leisure World had subscribed.

From May 1, 1972, to March 30, 1973, during a time when the president of the management company was also a shareholder in defendant Golden West, the same arrangement continued, and the Leisure World News was accorded exclusive live carrier circulation privileges within Leisure World to the exclusion of plaintiff's newspaper. On the latter date an agreement was entered into which purported to make all the residents of Leisure World “subscribers” to the Leisure World News and thus to place the Leisure World News colorably within the same category as the Los Angeles Times and other newspapers delivered within Leisure World on a subscription basis.

The facts are clear. Plaintiff was excluded from Leisure World and this operated as a prior restraint on its opportunity to communicate with the residents of Leisure World, while a similar publication was accorded that opportunity. Whether or not the curtailment of plaintiff's opportunity to communicate with the residents of Leisure World under precisely these defined circumstances was an abridgement of its constitutional rights of free speech is what we must decide.

IV

The free speech, private property cases fall generally into two groups. There are the company town cases descending from Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, which involved an individual who was arrested for attempting to sell religious publications on the streets of a privately owned company town known as Chickasaw, Alabama. In the litigation which was finally resolved in the Supreme Court of the United States, it was determined that the action of excluding private individuals from exercising their free speech rights on the streets of a company town was unconstitutional.

Without going into an extensive recitation of the rationale of the decision, it is enough for our purposes here to observe that the high court looked upon the company town as tantamount to a municipality and that it was therefore proscribed from limiting the exercise of free press rights just as is a true municipality. It is well settled that a municipality may not limit such rights. In this latter respect, reference is made to Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 97 Cal.Rptr. 777, 489 P.2d 809, which struck down a city ordinance which prohibited unsolicited distribution to private residences of precisely the same kind of newspaper as published here by plaintiff and by defendant Golden West.

Plaintiff relies heavily on certain language in Marsh in arguing that its exclusion from Leisure World amounted to state action giving it a claim arising under 42 United States Code section 1983. However, even though skillful in its arguments by analogy, plaintiff has not persuaded us that Leisure World is a company town for purposes of resolving the free speech issue. There are no commercial facilities in Leisure World. It is a concentration of private residences from which the public is rigidly barred.

The other line of cases here pertinent is that involving shopping centers, which, for our purposes start with Diamond v. Bland (I), 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733, followed by Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, which led to Diamond v. Bland (II), 11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460. In that case, which was an outgrowth of an exclusion from a regional shopping center of solicitors of signatures for an anti-pollution initiative, the court finally held, because the plaintiffs had effective, alternative channels of communication with the public, and because the solicitation activities bore no relationship to the shopping center activities, that it was permissible to exclude the plaintiffs. The court said, “(u)nder these circumstances, we must conclude that defendants' private property interests outweigh plaintiffs' own interests in exercising First Amendment rights in the manner sought herein.” (Diamond v. Bland (II), supra, 11 Cal.3d 331, 335, 113 Cal.Rptr. 471, 521 P.2d 463.)

However, that is not the last word on the subject. More recently, the California Supreme Court reversed its position on the shopping center situation, doing so in Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341. In Pruneyard, on facts strikingly similar to those in Diamond, the court ruled that the exercise of unrelated free speech rights within a privately owned shopping center cannot be prohibited provided that the free speech activity does not interfere with or impinge in any way upon the customary commercial activity for which the shopping center is intended.

While expressly overruling Diamond (II), as we read Pruneyard, it represents essentially a return to recognition of the rationale announced in In re Hoffman, 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353. In Hoffman, the private property was Union Station, the Los Angeles railroad depot owned by three railroad companies. Although the primary purposes of the depot were and remain evident, the petitioner and others entered Union Station to distribute anti-Vietnam War literature. When they refused to leave the station after being ordered to do so, they were arrested and convicted as trespassers. In granting the writ of habeas corpus, the California Supreme Court stated, “the test is not whether petitioners' use of the station was a railway use but whether it interfered with that use.” (Id. at p. 851, 64 Cal.Rptr. 100, 434 P.2d 356.)

In Pruneyard, the court ruled similarly in upholding the right of the plaintiff to solicit signatures within the confines of the shopping center. In so doing, the court observed, “(b)y no means do we imply that those who wish to disseminate ideas have free rein. We noted . . . Chief Justice Traynor's endorsement of time, place, and manner rules. (Citing In re Hoffman, supra, 67 Cal.2d 845, 852-853, 64 Cal.Rptr. 97, 434 P.2d 353.)” (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341.) Then follows the “test” language from Hoffman which we quoted earlier. Pruneyard then states, “(t)he opinion (Hoffman ) thus affirms that the public interest in peaceful speech outweighs the desire of property owners for control over their property. (Citation.)” (Id. at p. 909, 153 Cal.Rptr. at p. 860, 592 P.2d at p. 347.)

The Pruneyard case was appealed to the United States Supreme Court, which, very recently, handed down its opinion. (Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.) The United States Supreme Court decided that our state Constitution could and did provide a greater right of free speech than that provided by the federal Constitution, and that the state Constitution in affording these greater free speech rights did not violate the shopping center owner's property rights under the Fifth or Fourteenth Amendments to the United States Constitution.

Thus, our decision here necessarily must be responsive to the reasoning both express and implied in the Pruneyard opinion of our own Supreme Court. Simply stated, that case holds, under the California Constitution, that a shopping center which invites the public on to its premises for commercial purposes cannot thereupon restrict members of the public from exercising their right of free speech, provided such exercise does not interfere with the intended uses of the shopping center, and provided further that the property owner can reasonably regulate the exercise of the public's free speech rights as to time, place, and manner.

Plaintiff discounts Pruneyard as inapposite, arguing that the shopping center cases are in no way reflective of the circumstances at Leisure World. Plaintiff persists in its reply brief with efforts to equate the conditions here to those prevailing in a company town. On the other hand, defendants urge, because the public is physically denied entry into Leisure World, that Pruneyard inversely supports the propriety of the actions of Golden Rain in excluding the plaintiff's newspaper from Leisure World.

In our view, the facts of the case here present the occasion for a logical extension of the basic proposition relied upon in Pruneyard. There, because the public was accorded unlimited access to private property, restriction of any non-disruptive free speech was ruled to be impermissible. Here, as we see it, a limited access to Leisure World has been permitted over the years. Up to the time of the March 30, 1973, agreement, Mr. Olsen made no bones about the LWF policy of affording the Leisure World News exclusive access to Leisure World. This was done to enable LWF to recoup the losses it had sustained in the earlier years it had underwritten the deficit incurred in the publication of the Leisure World News.

After March 30, 1973, we see only a change in form, but not in substance, in what was happening. The so-called subscription agreement was a cosmetic subterfuge, and the actual relationship between any particular resident of Leisure World and Golden West, the publisher of the Leisure World News, in no way resembled that existing between such resident and, for instance, the Los Angeles Times to which he or she had personally subscribed.

Thus, the corollary to the rule in Pruneyard which the facts here suggest is this. To the extent that the owners of a private, gated community admit a representative of a given category of activity for purposes of exercising the constitutional right of free speech, then others of the same category cannot be excluded from the exercise of that same right. For many years LWF, with the complicity of Golden Rain, admitted the Leisure World News for unsolicited, carrier delivery to each residence of Leisure World. Having done so, Golden Rain must yield to application of the rule recited, and it must admit all others similarly situated who wish to deliver their newspapers unsolicited to each residence in Leisure World.

Defendant Golden Rain has argued that to subject the residents of Leisure World to such activity would frustrate their investment expectations of privacy and freedom from the intrusions of solicitors and the like, citing Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332. Without more we would agree with such contention; however, it was the management of Leisure World itself which let down the bars, and Golden Rain suffered it to continue. In this vein, it is pertinent to observe, if the residents of Leisure World do not want unsolicited, give-away newspapers delivered to their mailboxes by live carrier, then they should exclude them all, including the Leisure World News.

Actually, as a practical matter, in response to the turgid rhetoric about the imposition on private property rights which admission of plaintiff's newspaper to Leisure World would supposedly represent, it is fair to say that we fail to perceive any imposition of substance. What we see is plaintiff's delivery personnel being screened in the same way that the carriers of the Los Angeles Times are screened; we see plaintiff's delivery personnel being instructed that they are permitted to move about the streets of Leisure World during certain daylight hours on certain days; we see plaintiff's delivery personnel placing copies of the Laguna News-Post in the mailboxes of each residence of Leisure World in precisely the same manner that a United States Postal employee would do if the paper were mailed in. This hardly represents an intrusion on the privacy of any resident of Leisure World beyond what is already occurring.

Nevertheless, if this activity represents an unacceptable threat to the privacy of the residents of Leisure World, a privacy which it is argued they paid for when they bought homes there, then, acting through the processes of representative action, Golden Rain should exclude all newspapers to which individual residents have not personally subscribed by means of their own initiative.

The rule we announce as the basis for resolution of this case will not result in requiring unrestricted admittance to Leisure World of religious evangelists, political campaigners, cosmetic salespeople, signature solicitors, or any other uninvited persons. It will compel admission only of those who wish to deliver a newspaper like the Leisure World News, i.e., an unsolicited, give-away newspaper carrying predominantly commercial advertising purchased by merchants in Southern Orange County. In short, for purposes of exercising the state constitutional guarantee of free speech, the right of any and all to enter is to be exactly measured and limited by the right accorded to one, both as to the nature of the activity of that one as well as to the conditions of his admission. Under such a rule, the owners of the private property remain in complete control while yet being required only to act fairly and without discrimination toward exercise of the right of free speech.

Based upon the foregoing the trial court's denial of plaintiff's application for an injunction to cease its exclusion from Leisure World is reversed.

DAMAGES FOR THE CONSTITUTIONAL DEPRIVATION

I

Because we do not wish to extend this opinion unduly, it is enough to observe here that we agree with the trial court that plaintiff neither pleaded nor proved a right to damages under 42 United States Code section 1983. Moreover, we agree that the abridgement of plaintiff's state constitutional rights of free speech and free press is not self-executing in terms of providing a direct and immediate predicate for a claim for money damages. In this respect we approve and adopt the arguments of the defendants, observing further that it is the exclusive province of the Legislature to define the nature and extent of a person's entitlement to money damages available to redress his grievance arising from any deprivation of a state constitutional right.

II

Having decided that it was constitutionally impermissible for Golden Rain to exclude plaintiff's newspaper from Leisure World after it had for years allowed and enforced a monopoly for this kind of newspaper in favor of the Leisure World News, it remains to be decided if there is any theory upon which plaintiff was entitled to damages which was not considered by the jury.

It is clear that there is. The court erred in its December 5, 1977, order which prevented the plaintiff from adverting in the presence of the jury to the constitutional deprivation. Otherwise, there can be no question but what the exclusion of the Laguna News-Post from Leisure World presented a set of circumstances which should have gone to the jury under such instructions as would have enabled it to decide if there had been a combination of acts by two or more persons to carry out restrictions on trade or commerce. (Bus. & Prof.Code, s 16720.) If the jury were to find that there was such a restraint, then the consequences thereof would be governed by Business and Professions Code section 16750 under which the jury would be entitled to decide further whether the plaintiff was injured in its business by reason of any restriction found to have occurred as defined by Business and Professions Code section 16720.

By reason of the foregoing, we hold that the plaintiff is entitled a limited new trial on the issues as above defined.

THE REMAINING ISSUES

On the factual issues actually tried to the jury under the Cartwright Act and the Unfair Trade Practices Act, there was substantial evidence abounding to sustain the jury's verdicts on both the complaint and the cross-complaint, and we see no good purpose to be served in pursuing a detailed recitation of such evidence. The judgment in those respects is affirmed.

DISPOSITION

Insofar as the judgment denied plaintiff's application for an injunction to terminate its exclusion from Leisure World, the judgment is reversed with directions. The trial court is directed to grant such application on terms and conditions substantially as follows: For so long as Golden Rain or any other entity, exercising a power of control over the right of entry into Leisure World, authorizes or suffers the unsolicited, live carrier delivery of any give-away type newspaper, including the Leisure World News, to any residence in Leisure World where any occupant thereof has not personally requested or subscribed to such delivery, the plaintiff shall be entitled to enter Leisure World for the purpose of delivering its newspaper, unsolicited, to any residence in Leisure World, provided nevertheless that such a delivery shall be under the same rules and regulations as to time, place, and manner as apply to the delivery of the Los Angeles Times and other newspapers offered for sale to subscribers, and provided further that if any resident of Leisure World shall expressly state in writing to Golden Rain or to the management of Leisure World that he or she does not wish to receive unsolicited delivery of the Laguna News-Post to his or her residence, then plaintiff shall refrain thereafter from any delivery to that resident. In this latter instance, plaintiff shall be entitled to verify independently by telephone call or personal visit that any given resident does not wish to receive unsolicited delivery of the Laguna News-Post.

The trial court is further directed, upon due application of plaintiff, to try, with a jury if requested, those issues of fact arising from the illegality of the exclusion of the Laguna News-Post from Leisure World, the same in light of section 16720 and 16750 of the Business and Professions Code, and to assess such damages, if any, in favor of plaintiff as are expressly proved by the determination of such factual issues, subject nevertheless to the four-year limitation found in Business and Professions Code section 16750.1.

In all other respects the judgment is affirmed, and each party shall bear its own costs on appeal.

FOOTNOTES

1.  The following is a full text of the court's remarks made at the time of the December 5, 1977, ruling:“There remains the one question of the motion to exclude from the jury references to Plaintiff's claim of violation of or infringement of the rights, that is, the alleged constitutional rights of free press. And the motion is to exclude reference to that in voir dire, opening statements, evidence, argument or other proceedings before the jury. . . .“All right, the motion is granted.“Now, let me elaborate on that. The motion to exclude from the jury references to Plaintiff's claim of violation of its constitutional rights is granted. If such a violation occurred, it does not give the right to damages in the Plaintiff. There are insufficient allegations in the Complaint to bring the Plaintiff's claim under the provisions of the Federal Civil Rights Act, the 1983 sections, and that is, the provision under Federal law that would have to be with which we would have to be concerned if the Plaintiff were asserting a right to damages because of a claim of the violation of the right to a free press by virtue of the fact that they were precluded from delivery within the gates of Leisure World Laguna Hills.“The Complaint does not allege facts that would show any conduct under color of State law or statute or ordinance or custom, as is required by that act. It would appear that the initial conduct that is alleged did occur beyond the date that the statute would permit an action for recovery, that is, sometime in 1967 and the Complaint was filed in 1973. The question of whether or not Defendants should be restrained from excluding Plaintiff from the grounds of Leisure World Laguna Hills is before the court to decide, that is, should an injunction issue? And I anticipate that when the matter is submitted to the jury on the Cartwright assertions, that is, the assertions under the Cartwright Act, and the assertions under the Unfair Trade Practices Act, if there is other evidence that any party wants to present to the court on the issue of whether or not the injunction should issue after the jury has the case, you may present additional evidence that has to do with the item of the injunction.“The question under the State Constitution, that is, assuming there is an assertion of a violation of constitutional rights, should there be a right to recover damages in a State court because the allegations are that it violates the State Constitution, when there is an assertion of an inverse condemnation by the State, clearly, there is a right to recover damages because that is compensation for the taking of property. But in those instances where there is an assertion of violation of free press or free speech, there is no State statute on that subject. There is a State statute that gives the right to damages on a violation of the civil rights, and that is the Unruh Act. The legislature saw fit to enact the Unruh Act and give the right to damages for a violation of civil rights, but I don't believe the California Constitution is self-executing in other circumstances.“So we will proceed to trial on the Plaintiff's claim for damages under the Unfair Trade Practices Act and under the allegations of violations of the Cartwright Act and on the Cross-Complaint where the Cross-Complainant is asserting, at least, some acts that they contend are also a violation of the Unfair Trade Practices Act and the Cartwright Act.”

2.  “1. Leisure World at Laguna Hills . . . is a private residential housing project, consisting of dwelling units, streets, maintenance and other facilities.“2. All of the real property within Leisure World is privately owned and is used only for private purposes.“3. Leisure World is not open to the general public.“4. Entry into Leisure World is restricted to authorized persons who must pass through gates guarded by private security guards.“5. Since the inception of Leisure World in 1964, only the owners or occupants of real property within Leisure World or their invitees have been authorized to enter Leisure World.“6. There are no business districts or commercial facilities or areas such as stores, shopping centers, office buildings or the like within Leisure World, nor have there ever been any such districts, areas or facilities therein.“7. Beginning in late 1967, and continuing to date, plaintiff has been denied permission to enter Leisure World for the purpose of delivering its newspapers by carrier boy on an unrequested basis.”

3.  After January 1969, the News Advertiser was known as the Saddleback News and yet later as the Saddleback Valley News.

4.  As a consequence of other litigation, the stock in Birchall, Smith & Weiner, Inc., acquired by Olsen and Musch was later restored to Smith and Birchall.

McDANIEL, Associate Justice.

GARDNER, P. J., and MORRIS, J., concur.

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