Opinion
Review Granted June 22, 1989.
Previously published at 208 Cal.App.3d 1275
John W. Francis, La Habra, Earl W. Kintner, Marc L. Fleischaker, David J. Aronofsky, Gerald E. Oberst, Jr., Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for amici curiae on behalf of appellants.
Gary P. Scholick, Littler, Mendelson, Fastiff & Tichy, B. Elise Gautier, George G. Weickhardt, Feldman, Waldman & Kline, San Francisco, Mark Jon Sugarman, Michael N. Rosen, Robin Roger, Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, for appellants.
Margaret G. Fawcett, Law Offices of William T. Bullard, Jr., Mill Valley, for plaintiffs and respondents.
POCHE, Acting Presiding Justice.
Education Code section 81676 specifies that community college districts may establish bookstores "for the purpose of offering for sale textbooks, supplementary textbooks, school supplies, stationery supplies, confectionary items, and related auxiliary school supplies and services." The questions presented are (1) whether a permanent injunction issued to restrain a community college district from selling books not required for academic purposes comports with section 81676; (2) whether that injunction violates the First Amendment; and (3) whether the trial court correctly determined that irreparable injury was demonstrated by the impending violation of section 81676. We answer the first and third questions in the affirmative, and the second in the negative.
BACKGROUND
The events comprising the history of this dispute are easily recounted.
In June of 1986 officials of the Marin Community College District (District) executed an "Agreement For Management And Operation Of Bookstore" with Barnes & Noble Bookstores, Inc. (B & N). Pursuant to this agreement B & N agreed to "provide inventory and consulting services for the District's bookstores" at two campuses for a three-year term commencing on August 1, 1986. In the provision entitled "Pricing Policies" B & N undertook to "sell the textbooks, general books, soft goods, sundries, stationery and art supplies, magazines and novelty items at the following prices: [p] (a) New textbooks: publisher's suggested list price. [p] (b) Used textbooks: twenty-five percent discount from publisher's suggested list price. [p] (c) New York Times Bestsellers: twenty-five percent discount from publisher's price. [p] (d) Bargain and remainder books: thirty to eighty percent discount from publisher's suggested list price. [p] (e) School supplies and other merchandise: competitive with other bookstores and retail stores in the area." The agreement was adopted by the District's Board of Trustees the following month.
On August 7, 1986, a complaint for injunctive relief against the District was filed by 1st Street Books and Artist's Proof Bookstore & Graphics Workshop, which are privately-owned and and-operated bookstores located in Marin County, each of which "primarily sells general trade books." Plaintiffs alleged that adoption of the agreement by the District's Board of Trustees over plaintiffs' objections was "wrongful and unlawful" in that it was in violation of section 81676. They also alleged The trial court was equally unimpressed with the District's objections to the preliminary injunction proposed by plaintiffs. The District argued (among other things) that implementation of its agreement with B & N was permitted by the language of section 81676 authorizing establishment of a bookstore "for the purpose of offering ... related auxiliary school supplies and services"; that plaintiffs had not shown irreparable injury; and that the proposed injunction would be difficult to enforce as well as entailing "stifling of academic freedom" and "a tremendous chilling affect [sic: effect] on the First Amendment rights of the District and its students." Upon analyzing section 81676 the trial court concluded that "it is beyond the authority of the [District's] governing board to establish or operate a full-scale bookstore business on district property." The court therefore issued a preliminary injunction restraining the District "from selling or allowing to be sold ... any books except text books, supplementary text books required or recommended for college course work, and reference books."
Plaintiffs originally sought declaratory relief as well, but this subject was deleted from their amended complaint.
Plaintiffs also alleged that the agreement was contrary to a declaration of policy adopted by the District's Board of Trustees governing the provision of "auxiliary services" to student and staff. In this declaration the District disclaimed an intention to "compete with or detract from merchants offering such services to the general community." The declaration did not form any part of the basis for the trial court's decision to issue the permanent injunction which is the subject of these appeals. There is consequently no need to consider contentions relating to the policy declaration.
After this court denied the District's petition for an extraordinary writ, the trial court granted B & N leave to file a complaint in intervention.
In May of 1987 plaintiffs noticed a motion for summary judgment on their request for a permanent injunction. The oppositions filed by the District and B & N made three general points. First, they contended that operating full-service campus bookstores was authorized by section 81676. Second, they argued that there were numerous constitutional impediments to the relief sought by plaintiffs. Third, they claimed that there was a material issue of triable fact concerning whether plaintiffs had established irreparable injury.
The trial court conducted a hearing on the motion and granted it. The court thereafter entered a judgment in the form of a permanent prohibitory injunction, pursuant to whose terms the District and B & N were forever restrained "from selling or allowing to be sold at ... bookstores owned by defendant District any books except: [p] 1) textbooks; [p] 2) supplementary textbooks; [p] 3) reference books; and [p] 4) tradebooks required or recommended for college credit courses and community education classes for the current or next succeeding academic semester or quarter." B & N and the District (who will henceforth collectively be referred to as defendants) filed separate and timely notices of appeal from the judgment. REVIEW
I
Defendants have raised an enfilading crossfire of statutory and constitutional contentions against the judgment. The gravamen of their position is that section 81676, although constitutional on its face, is unconstitutional as applied by the trial court. Although ultimately both of these argument groupings will have to be considered, the rule that constitutional questions be deferred if possible (see In re Michael G. (1988) 44 Cal.3d 283, 295, 243 Cal.Rptr. 224, 747 P.2d 1152; Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 384, 188 Cal.Rptr. 897) obliges us to start with the claims that section 81676 can by itself upset the ban imposed by the trial court.
The Statutory Arguments
The pertinent portion of section 81676 provides: "The governing board of any community college district may establish a bookstore on district property for the purpose of offering for sale textbooks, supplementary textbooks, school supplies, stationery supplies, confectionary items, and related auxiliary school supplies and services." Construing this language, the trial court believed "it is evident that some restriction on the sale of books was intended by the Legislature." The court agreed with the judge who had issued the preliminary injunction "that had the Legislature intended to allow the operation of a full-service, general purpose bookstore to be operated by the District or its agent, then Section 81676 would simply have provided: [p] 'A governing board of any community college district may establish a bookstore on district property.' "
Defendants attack this construction from several angles. They initially argue that the plain words of section 81676 do not admit of limitation. In a related vein, they object to the "required or recommended" language which the trial court grafted on to the statute. Citing numerous other provisions of the Education Code, defendants then contend that the construction adopted by the trial court could not have been intended by the Legislature because it is antithetical to the District's educational mission. If these arguments do not succeed, defendants are then prepared to argue that implementation of their agreement is authorized by the "related auxiliary school supplies and services" language of section 81676. Finally, they tell us that an interpretation of section 81676 which would allow them to sell what they wish must be adopted because the statute is otherwise defenseless against constitutional objections.
As defendants see it, "Section 81676 itself does not support a construction that prohibits the sale of trade books at the District's bookstores.... The statute is not written in language of limitation. It does not say that 'only' certain books may be sold at college bookstores or that 'no' books other than certain books may be sold at college bookstores." On the contrary, as the trial court recognized, crucial terms in section 81676 are unmistakably "language of limitation." The statute speaks not to the sale of books in general, but "textbooks" and "supplementary textbooks."
Because section 81676 does not define any of these terms, they are to be construed according to their usual and ordinary meaning. (Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106, 1116, fn. 3, 238 Cal.Rptr. 24; see Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155.) The usual and ordinary meaning of "textbooks" and "supplementary textbooks" is books directly and secondarily used in the study of a given subject. (See Webster's Ninth New Collegiate Dict. (1984) p. 1220; Beck v. Board of Education (1976) 63 Ill.2d 10, 13-14, 344 N.E.2d 440, 441; The People v. Board of Education (1898) 175 Ill. 9, 18, 51 N.E. 633, 636.) It is a matter of the plainest common sense that a book cannot be a textbook if it does not relate to a course or class being taught. The "required or recommended" language adopted by the trial court in framing the permanent "[I]t is a duty of the courts to construe statutes so as to avoid ... an absurd result, if possible." (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 153, 23 Cal.Rptr. 592, 373 P.2d 640; accord In re Atiles (1983) 33 Cal.3d 805, 810, fn. 4, 191 Cal.Rptr. 452, 662 P.2d 910; Landrum v. Superior Court (1981) 30 Cal.3d 1, 9, 177 Cal.Rptr. 325, 634 P.2d 352.) Defendants invoke this principle in arguing that a more absurd result could not be imagined if section 81676 receives a construction which would prevent institutions devoted to learning from selling books that would facilitate that goal. Such a conclusion might seem to be anomalous. But although constructions which produce absurd results are to be avoided "if possible," they cannot be used as erasers of plain statutory language. " 'In construing a statute the function of the judge is simply to ascertain what in terms or substance is already there and not to insert what has been omitted or to omit what has been inserted. (Code Civ.Proc., § 1858.) Under the guise of construction the court will not rewrite a law ...; it will not supply an omission ...; and it will not give the words an effect different from the plain and direct import of the terms used....' " (Langsam v. City of Sausalito (1987) 190 Cal.App.3d 871, 877, 235 Cal.Rptr. 672 [citing and quoting Estate of Tkachuk (1977) 73 Cal.App.3d 14, 18, 139 Cal.Rptr. 55]; see People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475, 224 P.2d 677; Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 487, 231 Cal.Rptr. 702.) Acceptance of these limitations precludes acceding to defendants' argument that their agreement finds statutory validation in the "related auxiliary school supplies and services" language of section 81676.
"Auxiliary" imparts a subordinate relationship of one thing to another. In the case of section 81676, the operative words in the phrase "related auxiliary school supplies and services" are "related" and "school." Viewed in the context of the totality of the portion of section 81676 at issue here, that pair of words clearly establishes that "auxiliary supplies and services" must be "related" to the "school" on which the bookstore is located. The subsidiary nexus between "auxiliary supplies and services" and the school's educational functions is equally obvious. This relationship, even if only implicit in section 81676, becomes explicit when that statute is considered together with the command of Education Code section 72291 that "[t]he district's governing board shall provide such auxiliary services as deemed necessary to achieve the purposes of the community college." In one sense, just about any good or service could be defended as assisting students in the ultimate goal of education. Nevertheless, selling blankets or furniture hardly seems "related" to that goal.
The District contends that section 72291 "evidences a legislative intent that once a governing board decides to offer a particular auxiliary service, it shall be 'deemed necessary', i.e., it shall be second guessed" and also "expresses a clear legislative intent that the decision as to what type of auxiliary service to offer 'to achieve the purposes of the community college' is within the educational discretion of the District." These arguments are incorrect insofar as they suggest that no decision taken by a community college district with respect to auxiliary services can be in excess of the district's authority. (See e.g., Cal. Const., art. IX, § 14; Ed.Code, § 72233.)
Section 81676 is in essence a grant of power to community college districts. It is inappropriate to apply the principle of ejusdem generis. "This rule of statutory construction, '... provides that where general words follow specific words in an enumeration, the general words are construed to embrace things similar in nature to those things enumerated by the preceding specific words.' " (Sullivan v. Fox (1987) 189 Cal.App.3d 673, 680, 235 Cal.Rptr. 5.) Were the phrase "related auxiliary school supplies and services" given the construction defendants urge, the Legislature's express choice of the specific words "textbooks" and "supplementary textbooks" would become largely meaningless, because district bookstores would then be able to sell virtually any volume containing the printed word. If any book qualifies as "related auxiliary school supplies and services," the specific terms used become surplusage. The judicial duty is to avoid such a construction. (Brown v. Superior Court (1984) 37 Cal.3d 477, 484, 208 Cal.Rptr. 724, 691 P.2d 272; Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24, 157 Cal.Rptr. 706, 598 P.2d 866.) "It is to be remembered that 'the doctrine of ejusdem generis is but a rule of construction to aid in ascertaining the meaning of the legislature, and may be used to carry out, but not to defeat the legislative intent.' [Citation.] A rule of construction which appears to be more consonant with the legislative intent in this case is that 'a statute will be given its full effect, as far as possible, and will be so construed that the whole may stand, and that each part thereof may have the meaning and effect which, from the act as a whole, appears to have been intended.' " (People v. Silver (1940) 16 Cal.2d 714, 721, 108 P.2d 4.)
"If the statute is clear, the Legislature is presumed to have meant what it said and the plain meaning of the language governs." (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1251, 245 Cal.Rptr. 682.) The preceding discussion establishes what the trial court recognized: "it is evident that some restriction on the sale of books was intended by the Legislature" when it enacted section 81676. "Unless defendants can demonstrate that the natural and customary import of the statute's language ... for some ... compelling reason[ ] should be disregarded, this court must give effect to the statute's 'plain meaning.' " (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219, 188 Cal.Rptr. 115, 655 P.2d 317.) The constitutional objections defendants perceive to the injunctive enforcement of section 81676 may qualify as such a "compelling reason." (See Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 665, 224 Cal.Rptr. 688; Kite v. Campbell (1983) 142 Cal.App.3d 793, 801, 191 Cal.Rptr. 363.) We therefore turn to the constitutional merits.
The Constitutional Arguments
Defendants' constitutional arguments proceed in this progression: The offering of printed matter is a classical example of constitutionally-protected activity. Because the District's bookstores have been open to members of the public, the bookstores qualify as public forums. Because they propose to engage in protected activity at these public forums, defendants' right to do so may be restricted only if the state has a compelling state interest and has adopted measures narrowly tailored to promote that interest. California has no such interest. Finally, because only those books
Defendants' initial point may be conceded; there is no dispute that the dissemination of books, if they are not obscene, enjoys full constitutional protection. (See e.g., Bantam Books v. Sullivan (1963) 372 U.S. 58, 65, fn. 6, 83 S.Ct. 631, 637, fn. 6, 9 L.Ed.2d 584; Smith v. California (1959) 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205.) The clash between the parties is over whether the trial correctly concluded that the District's campus bookstores did not constitute public forums.
The concept of the public forum is an accommodation between the common law of property and constitutional guarantees of free expression, petition, and assembly. The essential point is the property owner's right to control access. The first expression of the public forum doctrine came in 1939 when the United States Supreme Court stated: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." (Hague v. C.I.O. (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.) The early development of the public forum concept evidenced a measure of confusion as courts grappled with determining whether other particular sites had become implicitly dedicated for public use or had retained their nonpublic status. (See generally Shiffrin, Government Speech (1980) 27 UCLA L.Rev. 565; Stone, Fora Americana: Speech in Public Places 1974 Sup.Ct.Rev. 233; Comment, The Public School as Public Forum (1975) 54 Tex.L.Rev. 90.) The resulting doctrinal landscape is dotted with judicial U-turns and mid-course corrections. (See e.g., Amalgamated Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 [shopping center is public forum] overruled in Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 and Hudgens v. NLRB (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196; see also Diamond v. Bland (1970) 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733 [following Logan Plaza ] overruled in Diamond v. Bland (1974) 11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460 [following Tanner ]; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 [construing California Constitution to require adoption of Logan Plaza rule] affd. sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.)
By now, however, most of the doctrinal dust has settled and certain analytical groupings are discernible. Where a given location fits within these groupings has important consequences for the ability of government to regulate or control communication on publicly-owned property. As was explained in Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-956, 74 L.Ed.2d 794 [text & fn. 7]:
--"In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.... In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. [Citation.] The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a --"A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. [Citations.] Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.... A public forum may be created for a limited purpose such as use by certain groups ... or for the discussion of certain subjects...."
--"Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the 'First Amendment does not guarantee access to property simply because it is owned or controlled by the government.' [Citation.] In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."
Defendants concede that the District's campus bookstores cannot fit within the definition of traditional public forums. They assert that the bookstores come within the second category, that of "limited" public forums, in light of the District's practice of allowing access to the public. Plaintiffs support the trial court, arguing that the bookstores are not any kind of public forum and retain the status of private property even if owned by a governmental entity. We agree with plaintiffs.
At first glance defendants' argument seems plausible. A college campus operated by public authorities, "at least for its students, possesses many of the characteristics of a public forum." (Widmar v. Vincent (1981) 454 U.S. 263, 267 fn. 5, 102 S.Ct. 269, 273 fn. 5, 70 L.Ed.2d 440.) Even so, because it "differs in significant respects from public forums such as streets and parks," an educational campus is not compelled to "make all of its facilities equally available to students and nonstudents alike, or ... [to] grant free access to all of its grounds or buildings." (Id.) Here, students are not directly involved, and the concern is with the specific use to be made of a specific portion of each of the District's campuses by specific parties. The tableau before us is also unusual because the governmental entity has abdicated a defense of its power to restrict access, and has instead aligned itself with the maximum claims for free expression urged by a commercial concern with no official connection to the governmental entity. Most atypically, the power to restrict access is defended by off-campus private parties.
"The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." (Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567.) The District does not have "an express policy of making its ... facilities available" to the public, thus "evidenc[ing] a clear intent to create a public forum." (Id. [citing Widmar v. Vincent, supra, 454 U.S. 263, 102 S.Ct. 269].) The mere fact that the bookstores are facilities devoted to the communication of ideas and information is not dispositive. (See United States v. Albertini (1985) 472 U.S. 675, 686, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536; City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 814, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772; Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37 at p. 44, 103 S.Ct. 948 at p. 954; U.S. Postal Service v. Greenburgh Civic Assns. (1981) 453 U.S. 114, 130, fn. 6, 101 S.Ct. 2676, 2685, fn. 6, 69 L.Ed.2d 517.) Nor is the matter resolved simply because members of the general public have been permitted to use the bookstores. (See United States v. Grace
Two additional points deserve mention. First, there is evidence that a considerable number of alternative bookselling forums are near the campuses. (See note 7, post.) Second, defendants' claim that restricting the books which the District can sell at its bookstores is a content-based discrimination, with overtones of unbridled discretionary powers of censorship, seems fanciful. Defendants appear to be proceeding on the reasonable assumption that the books designated by faculty for academic coursework, and thus for sale at the bookstores, will be limited to the subject for study. It is only sensible to assume that English teachers will not designate books on French history, business instructors will not recommend books on psychology, and so on. To accept defendants' argument would oblige the District's bookstores to be stocked without limit. Books on cooking, ancient Babylonian basket weaving, classical literature, politics, popular fiction, and virtually every subject imaginable would have to be stocked in perpetuity for defendants to be satisfied that there is no content discrimination. This would impose an intolerable strain on logic and the District's limited resources. (Cf. Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 ["a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles"].) If the District is not teaching a course on Marxism, why must it be required to stock The Communist Manifesto ? A college student may have the constitutional rights to buy and read such a book, but there is no constitutional duty on the college to sell it. (Cf. Harris v. McRae (1980) 448 U.S. 297, 317-318, 100 S.Ct. 2671, 2688-2689, 65 L.Ed.2d 784.) Restricting the power of designating which books should be sold "to those with teaching and operational responsibility in the schools" (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37 at p. 50, fn. 9, 103 S.Ct. 948 at p. 958, fn. "Control over access to a nonpublic forum can be based on subject matter ... so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. 788 at p. 806, 105 S.Ct. 3439 at p. 3451.) "The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation. In contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated.... Nor is there a requirement that the restriction be narrowly tailored or that the Government's interest be compelling." (Id. at pp. 808-809, 105 S.Ct. at p. 3453 [original emphasis].) Section 81676 and the injunction satisfy these standards.
It has also been repeatedly emphasized that " ' " '[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.' " ' " (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37 at p. 46, 103 S.Ct. 948 at p. 955; accord Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. 788 at p. 800, 105 S.Ct. 3439 at p. 3448; U.S. Postal Service v. Greenburgh Civic Assns., supra, 453 U.S. 114 at pp. 129-130, 101 S.Ct. 2676 at p. 2685; Greer v. Spock, supra, 424 U.S. 828 at p. 836, 96 S.Ct. 1211 at p. 1216; Adderley v. Florida (1966) 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149.) "Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. at pp. 799-800, 105 S.Ct. at p. 3448.)
"[W]hen government property is not dedicated to open communication the government may--without further justification--restrict use to those who participate in the forum's official business." (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37 at p. 53, 103 S.Ct. 948 at p. 959.) Because the District's bookstores are not public forums, there is no constitutional reason why section 81676 cannot be enforced as written by the Legislature and as construed by this and the trial court.
II
Having construed section 81676 and thus resolved the substantive issues, we now turn to whether the judgment is vulnerable to defects of summary judgment procedure.
A summary judgment cannot be given if there is a triable issue of material fact. (Code Civ.Proc., § 437c, subd. (c); Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) A showing of irreparable injury--an injury not compensable in damages--is ordinarily treated as a prerequisite for injunctive relief. (See Lezama v. Justice Court (1987) 190 Cal.App.3d 15, 21, 235 Cal.Rptr. 238; Gleaves v. Waters (1985) 175 Cal.App.3d 413, 417, 220 Cal.Rptr. 621; City of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal.App.3d 160, 179, 84 Cal.Rptr. 469; 6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 254, p. 221.) B & N and the District contend they presented sufficient evidence that plaintiffs' alleged injury would be compensable in damages to create a triable issue, thus calling for the denial of plaintiffs' motion for summary judgment.
In relevant part Civil Code section 3422 provides that "a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: [p] 1. Where pecuniary compensation would not afford adequate relief; [p] 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; [p] 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings...." The claim that plaintiffs could be compensated by damages is based upon a declaration by certified public accountant Rosenberg. Although the matters of irreparable injury and the adequacy of a remedy in damages do qualify as issues of fact (see People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 564, 234 P. 398; People v. Stafford Packing Co. (1924) 193 Cal. 719, 724-725, 728, 227 P. 485; Hicks v. Clayton (1977) 67 Cal.App.3d 251, 264, 136 Cal.Rptr. 512; Most Worshipful Hiram v. Most Worship. Sons Etc. (1949) 94 Cal.App.2d 25, 32-33, 210 P.2d 34), this declaration does not preclude summary judgment. The accounting process described therein is premised upon three years of "historical sales information," but at the time of the motion plaintiff 1st Street Books had been in existence under the current owner for less than that period. That procedure also requires access to the sales records of numerous other booksellers. Moreover, that access would have to The essential point is the difficulty, if not impossibility, of plaintiffs being able to quantify the number and value of books sold by the District's bookstores to plaintiffs' current customers which those and future customers would otherwise have purchased from plaintiffs. Even if it is assumed that the Rosenberg declaration outlines a process whereby this quantification could be made, using that process would entail "a multiplicity of judicial proceedings." (Civ.Code, § 3422, subd. 3; see Kellogg v. King (1896) 114 Cal. 378, 387-388, 46 P. 166; State of California v. Hansen (1961) 189 Cal.App.2d 604, 611, 11 Cal.Rptr. 335.) The proffered alternative for measuring plaintiffs' damages is cumbersome and complex. The trial court could reject it as part of the determination that injunctive relief was appropriate because " 'it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.' " (Civ.Code, § 3422, subd. 2.) The statutory standard is extreme difficulty, not impossibility. (See Wind v. Herbert, supra, 186 Cal.App.2d 276 at p. 285, 8 Cal.Rptr. 817.)
With minor editorial modifications added by us, the relevant portions of the declaration are as follows:
Evidence submitted by B & N showed at least 16 bookselling establishments within a five-mile radius of plaintiffs' locations, which would presumably be the "relevant geographical area" mentioned by Rosenberg.
Finally, there is the uncontradicted evidence that plaintiff 1st Street Books had an exceptionally small profit margin, having netted only $3,766 for the calendar year 1986, and that plaintiffs could not continue in business were the District's bookstore operations not confined as required by section 81676. "No proceeding at law can afford an adequate remedy for the destruction of one's business" (Dingley v. Buckner (1909) 11 Cal.App. 181, 183, 104 P. 478), which "is manifestly an irreparable injury." (Greenfield v. Bd. of City Plan. Commrs. (1935) 6 Cal.App.2d 515, 519, 45 P.2d 219.)
The District adopts an argument made by amici National Association of College Stores and California Association of College Stores to the effect that the question of whether the District's campus bookstores had become public forums remains an unresolved triable issue of material fact. Although somewhat unorthodoxly presented (cf. Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814, 187 Cal.Rptr. 310), the merits of this claim cannot be considered here because they were not raised before the trial court. (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281, 241 Cal.Rptr. 466.) Neither of the separate statements submitted by defendants in opposition to plaintiffs' summary judgment motion (see Code Civ.Proc., § 437c, subd. (b)) identified the issue of whether the District's bookstores were public forums as one that was in factual dispute. That issue was submitted as a legal issue, and the trial court's legal resolution has been shown correct.
III
We are not oblivious to the paradoxical nature of our holding--bookstores at public institutions of learning have been forbidden from selling certain books. But our duty is to enforce section 81676 according to its plain language unless overridden by constitutional imperative. There being none, and the requirements for injunctive relief being otherwise satisfied, the trial court properly granted plaintiffs' motion for summary judgment.
The judgment is affirmed.
CHANNELL and PERLEY, JJ., concur.
The District's assertion that it did not abuse its "quasi-legislative or legislative" power is equally flawed. Even if the dubious proposition that the agreement with B & N did implicate whatever legislative power the District might possess is indulged, the exercise of that power would still be in violation of section 81676 and thus void. (See Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103-104, 77 Cal.Rptr. 224, 453 P.2d 728; BMW of North America, Inc. v. New Motor Vehicle Bd. (1984) 162 Cal.App.3d 980, 994, 209 Cal.Rptr. 50.)
"[P]laintiffs claim that their damages will be 'incalculable' should the campus bookstores be permitted to sell general trade books and/or bestsellers is unjustified. Indeed, such damages would be easily calculable within a reasonable degree of certainty by a qualified accountant who had access to the books and records of both the affected private bookstores and the campus bookstores.
"More particularly, if an accountant was furnished with plaintiffs' historical sales information for approximately three years prior to B & N's entry into the relevant market, he or she could determine the volume of sales, the categories thereof, the cost of purchasing the books sold, overhead and plaintiffs' margin of profit.
"Similar records from both the campus bookstores and plaintiffs could then be reviewed for each year during which trade books and bestsellers are sold by both plaintiffs and the campus bookstores. An accountant could then determine from the sales data which categories of unassigned trade books were sold in common by plaintiffs' establishments and the campus bookstores and the respective volumes of those competing sales categories.
"Given the above-described information, computation of plaintiffs' lost profits would be straightforward, i.e., multiplying plaintiffs' historic profit margin by the number of lost sales which in turn could be arrived at by comparing sales volume in the three-year period prior to B & N's entry with the period during which damages are claimed. Indeed, an absolute ceiling on plaintiffs' damages could easily be established since plaintiffs' lost sales could not be any higher than the total volume of the campus bookstores' sales of competing sales categories multiplied by plaintiffs' historic profit margin from these categories.
"Moreover, if similar sales records were obtained for the same time periods from other competing bookstores in the relevant geographical area, a reasonable estimate could be made as to which portion of plaintiffs' lost profits (if such exist) is attributable to competition from the B & N-run campus bookstores and which portion is attributable to competition from the other private booksellers in the area.
"Thus, as set forth above, given access to sales records routinely maintained by retail book vendors, plaintiffs' actual damages, if any, resulting, from the sale by the affected campus bookstores of unassigned trade books and/or bestsellers would be ascertainable pursuant to accepted and conservative accounting methods."
In this connection it may be noted that plaintiff 1st Street Books is located across the street from one of the District's campuses.
It may be mentioned that, if anything, the content of defendants' separate statements seems to undercut the claim which the District and amici now advance. According to defendants, undisputed facts were that "[t]he general public constitutes only a small percentage of the District's bookstore customers;" that "[t]he campus bookstores are not easily accessible to nonstudents" who must pay for "extremely limited" parking space; and that "the college bookstores are difficult to locate on the campus and do not advertise off campus."
Amici also raise a number of points which, because they are not made in the parties' briefs, shall not be addressed. (Younger v. State of California, supra, 137 Cal.App.3d 806 at pp. 813-814, 187 Cal.Rptr. 310.)