Opinion
D076018
06-17-2020
TRADER JOE'S COMPANY, Plaintiff and Respondent, v. AAP HOLDING COMPANY, INC., et al., Defendants and Appellants.
Atabek & Associates, Jon A. Atabek; Arendsen Cane & Molnar and Christian S. Molnar for Defendants and Appellants. Valle Makoff, Jennifer Laser and Jeffrey B. Valle for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered the opinion filed June 17, 2020, be modified as follows:
1. In the last paragraph beginning on page 12, the sentence beginning "With one exception," is deleted and replaced with the following:
They have not recited the language from many of the relevant leases concerning the parties' rights with respect to the common areas, let alone the areas fronting Trader Joe's stores.
2. Footnote 5 on page 12 is deleted and all subsequent footnotes should be renumbered.
3. At the top of page 18, the last two citations following "see" in the parenthetical, People v. Johnson and People v. Bolin, are deleted and replaced with the following:There is no change in judgment. The petition for rehearing is denied.
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291, fn. 17 [in anti-SLAPP context, parties forfeited evidentiary objections where the trial court declined to rule on their objections and neither side pressed for a ruling]; U.S. Western Falun Dafa Association v. Chinese Chamber of Commerce (2008) 163 Cal.App.4th 590, 603, fn. 5 ["In the anti-SLAPP context, evidentiary objections are waived when counsel does not seek or obtain rulings on its evidentiary objections at the hearing [citation], unless counsel's further requests for a ruling would have been futile."]
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-0043082-CU-OR-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. Atabek & Associates, Jon A. Atabek; Arendsen Cane & Molnar and Christian S. Molnar for Defendants and Appellants. Valle Makoff, Jennifer Laser and Jeffrey B. Valle for Plaintiff and Respondent.
I
INTRODUCTION
Defendants AAP Holdings Company, Inc. (AAP) and PCI Consultants, Inc. (PCI) (together, Defendants) retained signature gatherers to solicit signatures for a ballot initiative from customers as they entered and exited grocery stores operated by Plaintiff Trader Joe's Company (Trader Joe's). The signature gatherers solicited signatures on the stores' front aprons, which Trader Joe's uses to store grocery carts and display merchandise. Trader Joe's filed this action against Defendants for trespass, nuisance, negligent interference with prospective economic advantage, aiding and abetting torts committed by the signature gatherers, and declaratory relief.
Defendants appeal an order denying their special motion to strike the complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP law). Assuming, without deciding, that Trader Joe's causes of action arise from acts in furtherance of Defendants' right of petition or free speech, we conclude Trader Joe's has demonstrated a probability of success on its causes of action. Therefore, we affirm the order denying the anti-SLAPP motion.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
II
BACKGROUND
A
We recite the following facts based on the allegations of the complaint and the evidence filed in connection with the anti-SLAPP motion. (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 606, fn. 2.)
Trader Joe's is a privately owned operator of a chain of specialty grocery stores that sell food, beverages, and other grocery items. Trader Joe's operates stores in the San Diego neighborhoods of Pacific Beach, Hillcrest, Mission Valley, Point Loma, and Carmel Mountain Ranch, among other areas. The stores in these five locations are situated in privately owned shopping centers and privately owned mixed-use developments. The stores do not possess restaurants, areas for shoppers to sit and eat, entertainment facilities, or gathering places for shoppers to congregate.
Trader Joe's has a nonsolicitation policy applicable to all groups, individuals, and organizations, which prohibits solicitation activities of any kind—including oral solicitation, distribution of written materials, handbilling, and petitioning—in its stores, on the aprons of its stores, in loading and trash areas, and in parking lots. Trader Joe's implemented the nonsolicitation policy to minimize disturbances to customers' shopping experiences, congestion at the front of stores, and interference with business operations. It also implemented the nonsolicitation policy because it did not want to be associated with solicitors' political positions, which may erode customers' goodwill.
B
Defendants are engaged in the business of gathering signatures for political campaigns and initiatives. In August 2018, signature gatherers retained by Defendants solicited signatures for a ballot initiative from customers outside the Pacific Beach, Hillcrest, Mission Valley, Point Loma, and Carmel Mountain Ranch Trader Joe's stores, without Trader Joe's consent. The signature gatherers stationed themselves outside the stores' entryways and exits and by the merchandise displays and shopping cart corrals on the stores' aprons. All affected stores suffered disruption to their operations and received complaints from customers about the signature gatherers. Some signature gatherers got into verbal altercations with customers who declined to sign the initiatives.
Employees asked the signature gatherers to stop soliciting signatures from their customers. Trader Joe's also sent cease and desist letters to Defendants. Nevertheless, the signature gatherers continued their solicitation activities.
C
Trader Joe's sued Defendants and other parties associated with the ballot initiative, alleging causes of action for trespass, nuisance, negligent interference with prospective economic advantage, aiding and abetting the signature gatherers' tortious conduct, and declaratory relief. Trader Joe's sought nominal and punitive damages, a declaration authorizing it to prohibit signature gatherers from using its premises to gather signatures, and an injunction prohibiting Defendants and others acting in concert with Defendants from gathering signatures in front of Trader Joe's stores in California.
Defendants filed a special motion to strike the complaint under the anti-SLAPP law. They argued Trader Joe's causes of action arise from two categories of protected conduct: statements "made in a place open to the public or a public forum in connection with an issue of public interest" (§ 425.16, subd. (e)(3)), and "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest" (id., subd. (e)(4)). Further, they argued the causes of action lack minimal merit. They asserted the trespass and declaratory relief causes of action do not have minimal merit because Trader Joe's had no right to possess the areas outside its stores, which were owned by the owners of the shopping centers and mixed-use developments in which the stores were located (hereinafter, the landlords). They claimed the nuisance cause of action does not have minimal merit because the signature gatherers were polite and courteous. They argued the remaining causes of action do not have minimal merit because Defendants were unaware they had disrupted Trader Joe's business operations.
Together with the anti-SLAPP motion, Defendants filed declarations from their counsel of record and a former executive of a property management company. The declarants averred leases in shopping centers rarely or never grant lessees a right to exclude persons from the common areas of shopping centers. Defendants also filed a declaration from AAP's president, who admitted AAP retained subcontractors to solicit signatures near Trader Joe's stores in July and August 2018. However, he averred the signature gatherers did not "work" for AAP because they were not its employees.
Trader Joe's opposed the anti-SLAPP motion. It argued its causes of action do not arise from protected activity because the signature gatherers had no constitutional right to solicit signatures on the walkways and aprons outside its stores. According to Trader Joe's, the gathering of customer signatures was not a protected activity because a private walkway or apron in front of a store entrance in a shopping center is not the equivalent of a public forum. Trader Joe's argued the court should deny the motion, in the alternative, because its causes of action have minimal merit. It asserted its trespass cause of action has minimal merit because Trader Joe's maintained or controlled the areas outside its stores. Further, it argued its remaining causes of action have minimal merit because Defendants explicitly instructed the signature gatherers to solicit signatures at Trader Joe's stores and the signature gatherers' conduct disrupted its stores' business operations.
Together with its opposition brief, Trader Joe's filed declarations from agents of the landlords. They averred their retail centers and mixed-use developments were privately owned and the signature gatherers did not have their permission to solicit signatures. They also averred Trader Joe's used and/or controlled the areas outside its stores to store grocery carts and display merchandise. Trader Joe's filed declarations from employees who worked at the affected stores as well. The employees averred signature gatherers solicited signatures outside the stores in August 2018. They averred customers complained to the stores about the signature gatherers and one of the declarants attached complaints received by the declarant's store. One customer stated, "I will not shop at your store until those signature gathers [sic] are gone from in front of your store." Another customer stated, "Very rude and aggressive man gathering signatures .... I live close by and shop at this store several times a week. I don't feel safe coming back to Trader Joe's until I know this man will not be there." Nearly all the employee-declarants averred they asked the signature gatherers to leave, but the signature gatherers refused.
Defendants filed a reply brief in support of the anti-SLAPP motion. They claimed the causes of action arise out of protected speech and petitioning activity, irrespective of whether the solicitation activity occurred on private property. They also argued Trader Joe's failed to establish minimal merit to its trespass cause of action because it purportedly did not have a right to control the areas outside its stores. Further, they filed objections to Trader Joe's declarations on foundation and hearsay grounds. Together with its reply brief, Defendants submitted the leases for the affected Trader Joe's stores.
The trial court entered a stipulated order permitting Defendants to submit the leases for the affected Trader Joe's stores with their reply brief.
On March 22, 2019, the court denied the anti-SLAPP motion. It concluded Defendants failed to meet their burden at the first step of the anti-SLAPP analysis because the causes of action do not arise from protected activity. According to the court, neither the federal Constitution nor the state Constitution afforded the signature gatherers a right to engage in expressive activities on the walkways and aprons in front of Trader Joe's stores because the property was privately owned and did not serve as the functional equivalent of a public forum. The court found the property was not the functional equivalent of a public forum because it was used strictly for "ingress and egress to and from" the stores and the stores were not configured to facilitate gatherings of people. Because Defendants did not meet their burden at step one of the anti-SLAPP analysis, the court did not address whether Trader Joe's causes of action have minimal merit.
On March 25, 2019, the trial court clerk served the minute order denying the anti-SLAPP motion. On March 26, 2019, Trader Joe's filed and served a document entitled "Notice of Entry" of the order denying the anti-SLAPP motion, together with the minute order denying the anti-SLAPP motion. On May 28, 2019, Defendants appealed the order denying the anti-SLAPP motion.
III
DISCUSSION
A
Timeliness
Before we address the merits of the appeal, we consider a predicate jurisdictional issue: whether the appeal is timely. "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' " (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
Typically, "a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of [the appealable order] or a file-endorsed copy of the [appealable order], showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of [the appealable order] or a filed-endorsed copy of the [appealable order], accompanied by proof of service; or [¶] (C) 180 days after entry of [the appealable order]." (Cal. Rules of Court, rule 8.104(a)(1).)
Subsequent unidentified rule references are to the California Rules of Court.
The trial court clerk served the order denying the anti-SLAPP motion on March 25, 2019, and Defendants filed the notice of appeal on May 28, 2019—64 days later. The appeal would be untimely if the clerk's service triggered the 60-day deadline to appeal. However, the document served by the clerk bore no file stamp and was entitled "Minute Order," not "Notice of Entry." Thus, the clerk's service did not trigger the time to appeal. (Bi-Coastal Payroll Services, Inc. v. California Ins. Guarantee Assn. (2009) 174 Cal.App.4th 579, 586 [clerk's mailing of minute order that was not entitled "Notice of Entry" or file stamped did not commence 60-day period for filing notice of appeal].)
Instead, the time to appeal began running on March 26, 2019, when Trader Joe's served the document entitled "Notice of Entry" of the order denying the anti-SLAPP motion, together with a copy of the order. (Rule 8.104(a)(2).) The 60th day after March 26, 2019 was Saturday, May 25, 2019. The deadline to appeal was extended until the next day that was not a court holiday, i.e., Tuesday, May 28, 2019. (Rule 1.10(a), (b).) Defendants filed their notice of appeal on that date. Therefore, the appeal is timely.
We take judicial notice that Monday, May 27, 2019 was Memorial Day.
B
Anti-SLAPP Framework
"Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim 'arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.' " (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).)
"A court evaluates an anti-SLAPP motion in two steps. 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' " (Wilson, supra, 7 Cal.5th at p. 884.) "A defendant satisfies the first step of the analysis by demonstrating that the 'conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16]' [citation], and that the plaintiff's claims in fact arise from that conduct [citation]." (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.)
If the defendant satisfies the first step, " 'the burden shifts to the plaintiff to demonstrate the merit of [its] claim[s] by establishing a probability of success.' " (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (Monster).) The plaintiff " 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.' " (Ibid.) " 'The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed." ' " (Ibid.)
We review an order granting or denying an anti-SLAPP motion de novo. (Monster, supra, 7 Cal.5th at p. 788.)
C
Step One: Protected Activity
For purposes of the present appeal, we will assume without deciding Trader Joe's causes of action arise from acts in furtherance of Defendants' right of petition or free speech. Therefore, we will proceed to the second step of the anti-SLAPP analysis. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [assuming first step satisfied and conducting analysis under second step]; see also, e.g., Animal Legal Defense Fund v. LT Napa Partners LLC (2015) 234 Cal.App.4th 1270, 1277 [same].)
D
Step Two: Probability of Success
Under the second step of the analysis, we must determine whether Trader Joe's satisfied its burden of establishing a probability of success for its causes of action. (Monster, supra, 7 Cal.5th at p. 788.) In making this determination, we consider both "the substantive merits of the plaintiff's complaint, as well as all available defenses to it, including, but not limited to constitutional defenses." (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.)
1
Trespass
Defendants' anti-SLAPP motion sought to strike the complaint in its entirety, including the trespass cause of action. " 'Trespass is an unlawful interference with possession of property.' [Citation.] The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm." (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262 (Victory Consultants).) The only element in dispute is the first element—i.e., whether Trader Joe's made a prima facie showing of ownership or control.
Trader Joe's submitted ample evidence establishing a prima facie case of control. Employees and landlords for each of the five affected stores averred that Trader Joe's maintained shopping cart corrals and/or displayed merchandise in the aprons by the stores' entryways and exits. Multiple landlords expressly averred these areas were under Trader Joe's "control." Two landlords—the landlords for the Pacific Beach and Mission Valley stores—averred they leased the aprons to Trader Joe's. This evidence constitutes a prima facie showing of Trader Joe's control over the areas in front of its stores.
Defendants argue Trader Joe's did not establish a prima facia case of control because its leases allegedly grant the landlords exclusive authority to control the common areas of the shopping centers and mixed-use developments, including the areas in front of Trader Joe's stores. They urge us to disregard Trader Joe's evidence because, according to Defendants, it is "contradicted by the plain language in the [l]eases themselves."
Defendants have not supported their argument with reasoned analysis or support in the appellate record. With one exception, they have not recited any of the language from the relevant leases concerning the parties' rights with respect to the common areas, let alone the areas fronting Trader Joe's stores. Nor have they provided adequate citations to the appellate record containing the lease terms on which they purport to rely. Rather, they make broad assertions such as the following illustrative example: "[A]ccording to each of the [l]eases, it is the shopping center, and not the tenant (Trader Joe's), who has the right to control the exterior of the store." In support of this claim and others like it, Defendants cite pages 31 through 568 of the sealed appellate record, as if expecting this court to parse through hundreds of pages of the record to find support for their claims.
Defendants quote language defining the term "Common Area" in Trader Joe's lease for the Carmel Mountain Ranch store.
"[I]t is counsel's duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) By failing to provide reasoned argument or adequate record citations, Defendants have forfeited their arguments regarding Trader Joe's alleged rights under its store leases. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
In any event, the alleged lease provisions would not alone negate Trader Joe's prima facie showing of control. " ' "[T]he cause of action for trespass is designed to protect possessory—not necessarily ownership—interests in land from unlawful interference." ' " (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 401.) " '[P]ossession' is synonymous with 'occupation' and connotes a subjection of property to one's will and control." (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105.) " '[O]ne in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession ....' " (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1042; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1175 ["[T]respass is an unlawful interference with possession, not lawful use."].) As a result, the scope of Trader Joe's contractual rights does not, standing alone, determine whether it can demonstrate that a trespass occurred.
Further, while Defendants' failure to provide reasoned argument and citation to the appellate record makes it infeasible for us to determine whether and to what extent Trader Joe's evidence conflicts with the leases submitted by Defendants, we note for the record that it is not our role to " ' "weigh credibility [or] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
Thus, to the extent the parties' evidence gives rise to conflicting inferences, our role is to accept as true the evidence favorable to Trader Joe's. As noted above, such evidence supports a prima facie case that Trader Joe's controlled the areas outside its stores and thereby established minimal merit to its trespass cause of action.
2
Nuisance, Negligent Interference with Prospective
Economic Advantage, Aiding and Abetting Tortious Conduct
Defendants' anti-SLAPP motion sought to strike Trader Joe's nuisance and negligent interference with prospective economic advantage causes of action, as well as allegations that Defendants aided and abetted torts committed by signature gatherers.
The complaint does not specify whether the nuisance cause of action is for a private nuisance or a public nuisance. However, it alleges the challenged conduct disrupted Trader Joe's business and does not allege disruption to any other persons or entities. Therefore, we presume the complaint alleges a private nuisance.
"A private nuisance claim is a claim for 'a nontrespassory interference with the private use and enjoyment of land.' [Citation.] As our Supreme Court has explained, it requires proof of three elements. [¶] First, the plaintiff must prove an 'interference with the plaintiff's use and enjoyment of that property.' [Citation.] [¶] Second, the plaintiff must prove 'that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer "substantial actual damage." ' [Citations.] .... [¶] Third, ' "[t]he interference with the protected interest ... must also be unreasonable" [citation], i.e., it must be "of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land." ' " (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802-803.)
"The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) the defendant's knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant's failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant's negligence." (Redfearn v. Trader Joes Co. (2018) 20 Cal.App.5th 989, 1005.)
A defendant may be held liable under aiding and abetting principles for an intentional tort committed by another person if the defendant had actual knowledge that a tort is being or will be committed, provided substantial assistance or encouragement to the actor, and defendant's conduct was a substantial factor in causing plaintiff's harm. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1140-1141.)
Defendants contend Trader Joe's failed to establish a probability of success for its nuisance and negligent interference with prospective economic advantage causes of action, as well as its aiding and abetting theory of liability, for a common reason. According to Defendants, Trader Joe's submitted no admissible evidence showing that signature gatherers in fact solicited signatures from Trader Joe's customers in August 2018 or that Trader Joe's suffered harm as a result of the solicitation.
As best we can discern, Defendants appear to argue Trader Joe's alleged failure to submit admissible evidence of signature gathering precluded it from establishing interference with its use and enjoyment of its property (for the nuisance claim), actual disruption of its relationship with customers and proximate economic harm (for the negligent interference with prospective economic advantage claim), and a predicate tort committed by the signature gatherers (for the aiding and abetting theory of liability).
Defendants' argument is not well-taken. Trader Joe's submitted declarations from employees averring that signature gatherers set up tables outside their stores and solicited signatures on a daily basis for several weeks in August 2018. Some of the employees described specific complaints their stores received from dissatisfied customers, including customers who stopped shopping at the stores. This evidence constituted a prima facie showing of the disruptive nature of the signature gathering activity and the resulting harm suffered by Trader Joe's.
Defendants contend we should not consider the employees' declarations on grounds they suffered from evidentiary defects and were thus inadmissible. They argue the declarations lacked foundation, were based on hearsay, and were conclusory. Defendants filed objections on these and other grounds prior to the hearing on the anti- SLAPP motion. However, the trial court did not rule on the objections and a review of the reporter's transcript indicates Defendants did not press the objections at the hearing.
" ' "[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling ... the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place." ' " (People v. Braxton (2004) 34 Cal.4th 798, 813; see People v. Johnson (2018) 6 Cal.5th 541, 586; People v. Bolin (1998) 18 Cal.4th 297, 312-313.) By failing to press the trial court for a ruling, Defendants are barred from asserting their evidentiary objections here.
In any event, we do not believe the declarations conveyed mere third-party accounts of the signature gatherers' conduct, as Defendants argue. The declarants collectively worked at all five of the affected Trader Joe's stores during the relevant timeframe. They averred they were familiar with the events described in their declarations and would testify based on personal knowledge about the signature gatherers' conduct. Further, most of the declarants averred they personally asked the signature gatherers to stop their conduct and leave their stores.
Defendants' characterization of the declarations as conclusory fares no better. The declarations described with sufficient particularity the alleged conduct in which the signature gatherers engaged, the date range in which the signature gatherers solicited customers' signatures, the declarants' efforts to halt the solicitation activities, and in some cases the complaints their stores received from regular customers. (Mission Beverage Co. v. Pabst Brewing Co. (2017) 15 Cal.App.5th 686, 711-712 [declaration was not "conclusory" merely because it did not " 'show [the] math' " on damages issue].)
Based on the foregoing, we conclude Trader Joe's established a probability of success on its nuisance and negligent interference with prospective economic relations causes of action, as well as its aiding and abetting theory of liability.
Defendants argue, for the first time on appeal, that Trader Joe's failed to establish a prima facie case that the signature gatherers were Defendants' agents. Defendants did not raise this argument in the trial court. Accordingly, we deem the argument forfeited. (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 92-93.) Further, we note that Defendants submitted a declaration from the president of AAP, who averred AAP retained independent subcontractors to solicit signatures for the pertinent ballot initiative at issue in July and August 2018. An independent contractor can be an agent of a principal, depending on the relation of the parties. (Victory Consultants, supra, 17 Cal.App.5th at pp. 262-263.)
3
Declaratory Relief
Defendants present no argument in their opening brief regarding the declaratory relief cause of action. However, in their reply brief, they argue it is derivative of the trespass cause of action and contend neither cause of action has minimal merit.
Defendants waived their argument regarding the declaratory relief cause of action by not raising it in the opening brief. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 684-685.) Even if we were to address the argument, we would conclude—for the reasons discussed in our analysis of the trespass cause of action (ante Part III.D.1)—that the declaratory relief cause of action has minimal merit.
4
Protected Speech Defense
Finally, Defendants claim Trader Joe's failed to establish a probability of success to defeat a legal defense applicable to Trader Joe's causes of action. They assert the signature gatherers had a protected right under the state Constitution to engage in speech and petitioning activity on the walkways and aprons in front of Trader Joe's stores.
Defendants rely on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard). In Pruneyard, students set up a table in the courtyard of a privately owned shopping center and solicited signatures for a petition they planned to send to the White House in opposition to a United Nations resolution. (Id. at p. 902.) Security officers informed the students their activities violated the regulations of the shopping center and instructed them to leave. (Ibid.) The students left the premises and sued to enjoin the shopping center from denying them access. (Id. at p. 903.) The Supreme Court determined the students were entitled to an injunction. (Id. at p. 911.)
The Pruneyard court recognized there were " 'constitutional guarantees attaching to private ownership of property ....' " (Pruneyard, supra, 23 Cal.3d at p. 906.) However, it reasoned that private property ownership rights may be "held in subordination to the rights of society" when the public's interests are sufficiently weighty, as is the case when property interests yield to zoning and environmental laws. (Ibid.) Therefore, the court "developed a balancing test," which requires courts "to balance the competing interests of the property owner and of the society with respect to the particular property or type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity." (Trader Joe's Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425, 433 (Progressive Campaigns).)
Applying the balancing test, the Pruneyard court concluded the state Constitution protects speech and petitioning in privately owned shopping centers if the centers are generally open to the public and function like a public forum. (Pruneyard, supra, 23 Cal.3d at p. 910.) "A privately owned shopping center may constitute a public forum under the state Constitution because of 'the growing importance of the shopping center' [citation] ' "as a place for large groups of citizens to congregate" ' and ' "to take advantage of the numerous amenities offered" ' there, and also because of ' " 'the public character of the shopping center,' " ' which is a result of the shopping center's owner having ' " 'fully opened his property to the public' " ' [citation]." (Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083, 1091 (United Food).)
In United Food, the Supreme Court applied the Pruneyard test to determine whether a privately owned walkway by an entrance to a supermarket was a public forum. (United Food, supra, 55 Cal.4th at pp. 1091-1093.) The court differentiated areas outside store entryways from shopping center common areas. (Id. at p. 1092.) In contrast to common areas, "areas immediately adjacent to the entrances of individual stores typically lack seating and are not designed to promote relaxation and socializing." (Ibid.) Instead, they "serve utilitarian purposes of facilitating customers' entrance to and exit from the stores" and providing stores a means to advertise goods and services. (Ibid.) Further, expressive activities by store entryways "pose a significantly greater risk of interfering with normal business operations" because such areas are heavily trafficked. (Ibid.) For these reasons, the United Food court concluded that, "within a shopping center or mall, the areas outside individual stores' customer entrances and exits, at least as typically configured and furnished, are not public forums ...." (Ibid.)
A similar conclusion was reached in Progressive Campaigns. In that case, the Court of Appeal affirmed a preliminary injunction prohibiting signature gatherers from soliciting signatures from customers entering and exiting a Trader Joe's store in Santa Rosa. (Progressive Campaigns, supra, 73 Cal.App.4th at p. 427.) Applying the Pruneyard balancing test, the court concluded Trader Joe's had a comparably strong interest in maintaining control over its private property. (Id. at p. 433.) Trader Joe's invited people solely "to come and shop for food and food-related items," not to meet friends, eat, rest, be entertained, or congregate. (Ibid.) Further, the public's interest in engaging in expressive activity was not especially strong at the Trader Joe's store because people went there "for a single purpose—to buy goods." (Ibid.) After balancing the private and public interests, the court concluded Trader Joe's was "not a public forum uniquely suitable as a place to exercise free speech and petitioning rights." (Id. at p. 434.) Thus, the state Constitution did not protect the signature gatherers' conduct. (Ibid.)
In line with these precedents, we conclude Trader Joe's has a probability of overcoming Defendants' substantive legal defense. In their declarations, Trader Joe's landlords and employees averred the areas by the store entryways and exits are used to facilitate ingress and egress of customers, display merchandise, and store grocery carts. Additionally, the record contains photographic evidence of some of the stores, which depict entryways and exits configured in a manner similar to those described in the United Foods and Progressive Campaigns decisions. The entryways and exits have no nearby benches or communal gathering, eating, or entertainment areas.
Defendants place great emphasis on the fact that a single bench is located 22 yards away from the entryway of one Trader Joe's store (the Carmel Mountain Ranch location). However, the mere presence of a single bench "some distance from the store entrance[] does not change the nature of the doorway and apron areas" of the store. (Center for Bio-Ethical Reform, Inc. v. The Irvine Co., LLC (2019) 37 Cal.App.5th 97, 112.)
Considering the above factors, we conclude Trader Joe's has established a probability of demonstrating that the areas outside its stores are not the functional equivalent of public forums. Rather, like the walkways and aprons at issue in United Foods and Progressive Campaigns, they appear to serve a utilitarian function of providing ingress and egress to the stores. Therefore, Trader Joe's has established a probability of demonstrating that the alleged conduct was not constitutionally protected.
In Victory Consultants, we applied the Pruneyard balancing test at the first step of the anti-SLAPP analysis to determine whether the plaintiff's cause of action arose from protected conduct under section 425.16. (Victory Consultants, supra, 17 Cal.App.5th at p. 258.) Although we assume for purposes of this appeal that Defendants' conduct fell within the scope of the anti-SLAPP statute, we reiterate that it is proper to conduct a Pruneyard balancing analysis at the first step of the anti-SLAPP analysis.
IV
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on appeal.
We deny Trader Joe's request for attorney fees, as we do not find that the appeal was frivolous or solely intended to cause unnecessary delay. (§ 425.16, subd. (c)(1).)
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.