No. A082319

In the Court of Appeal of the State of California

First Appellate District

Division Three

(San Francisco County Super. Ct. No. 981081, Honorable John Dearman)

COUNSEL

 Robert De Vries, Devries & Gold, for Defendant and Respondent

 Glenn Phillip Zwang, Bartko, Zankel, et al., for Plaintiff and Appellant

Filed July 26, 1999

CERTIFIED FOR PARTIAL PUBLICATION[FOOTNOTE *]

Introduction

 In the published portion of this opinion, we hold that the owner of a private apartment complex who prohibits tenants from distributing unsolicited newsletters to apartments does not violate California' s constitutional guarantees of free speech. In the unpublished sections, we further hold the tenants' association has neither a contractual nor a statutory right to leaflet within the residential complex. We reverse the judgment and remand to the trial court with instructions to enter an order enjoining the association from leafletting in violation of building management rules.

Background

 Golden Gateway Center (Golden Gateway) owns a retail and apartment complex in downtown San Francisco. The complex includes townhouses and four high-rise apartment buildings with 1,254 residential units.

 Golden Gateway emphasizes security and privacy for its residential tenants.[FOOTNOTE 1] To protect the privacy, security and appearance of the center, building management prohibits door-to-door solicitation and leafletting within the apartment buildings. Every residential lease incorporates by reference Building Standards, as well as provisions prohibiting solicitation and leafletting within the apartment buildings. By definition, leafletting includes posting notices anywhere in the building except on designated bulletin boards; placing papers on, under or about tenants' doors; and leaving multiple copies in common areas. A tenant may, however, specifically request delivery of leaflets or other papers.

 In the early 1980' s a group of residents formed the Golden Gateway Tenants Association (the Association).

 The Association periodically distributed its newsletters on or under apartment doors.

 In 1993, in response to an increase in the volume of leafletting, Golden Gateway management first took steps to enforce its no-solicitation policy. Citing the Building Standards, Golden Gateway manager Daniel James instructed the Association to stop leafletting. The Association responded that its activities were protected by the United States and California Constitutions and threatened legal action to enforce its purported constitutional rights.

 James wrote to the Association offering to meet with tenants to re-evaluate Golden Gateway' s policy. After outlining the building management' s security, privacy and litter concerns, he suggested it might be "time to decide if Golden Gateway Center' s ' no solicitation' rule remains the best policy." He noted that various issues would have to be addressed: "The difficulty is deciding what is appropriate activity at Golden Gateway Center and what is not. For example, should residents be allowed to distribute anything they want under apartment doorways? Should residents be allowed to solicit contributions for charity door to door within Golden Gateway Center? Should people representing political, commercial, non-commercial, individual, or group interests be allowed in the residential buildings?"

 When the Association declined James' s invitation to meet, he responded in writing on April 14, 1994: "We are disappointed that the Golden Gateway Tenants' Association is unwilling to engage in a dialogue to reach a mutually agreeable approach to dissemination of Golden Gateway Tenants' Association materials. According to your attorney, you will not respond to my letter. . . . Representatives of your organization also refused to discuss the matter in a meeting with me on Monday. As I indicated in my earlier letter, we do not believe that litigation is necessary, appropriate or even productive in the present context. [¶ ] In the interest of moving ahead and allaying any unfounded concerns, Golden Gateway Center management will not oppose the distribution of newsletters under apartment doorways by members of the Golden Gateway Tenants' Association provided it is done in a reasonable manner. [¶ ] We are willing to discuss this matter further, if you like. Otherwise, we will assume the matter is resolved."

 The Association wrote in response, on April 22, 1994, that it would resume distributing newsletters to all tenants under their doors. The parties did not discuss or define what James had meant by "a reasonable manner."

Although James believed a "reasonable manner" would be to distribute newsletters under doors of Association members only, he did not convey his view to the Association. Association representatives expected James would speak up if he found its leafletting unreasonable.

 Barney Lane replaced James as Golden Gateway' s manager in 1995.  Between February and May 1996 the Association sharply increased its leafletting activity, distributing at least eight newsletters and notices of meetings and hearings or other announcements during that period.

 In a May 14, 1996 letter Lane asked the Association to scale back its leafletting and restrict distributions to the Association' s newsletter, noting in particular that dissemination of public hearing notices was not within James' s agreement to allow reasonable distribution of the Association newsletter. The Association responded that its activity was constitutionally protected: "[O]ur letter to Mr. Dan James of April 22, 1994 was intended to acknowledge Golden Gateway Center' s recognition of [the Association' s] rights under the First Amendment. . . . [¶ ] Nothing else was implied by our letter."

 The Association continued distributing its newsletter to all tenants. Golden Gateway sought to enjoin this violation of the Building Standards. The Association cross-complained for injunctive and declaratory relief, asserting it had a constitutional right to leaflet in Golden Gateway' s buildings; that Golden Gateway was impermissibly retaliating against the Association for its lawful activities; and that the parties had entered into a contract permitting the Association to leaflet at will. The trial court issued the preliminary injunction. After trial, however, the court ruled the parties' April 1994 correspondence created a binding lease amendment by which Golden Gateway agreed to permit the Association to distribute its newsletter six times annually. On that sole basis, it granted declaratory judgment in favor of the Association. Golden Gateway timely appealed.

Discussion

I.............................

II. The Association Does Not Have A Constitutional Right to Leaflet in the Complex

 The Association argues it has a constitutional right to distribute its leaflets in the apartment complex. The question, apparently one of first impression, is whether the state constitution guarantees the Association the right to directly distribute unsolicited literature in a large, privately-owned apartment complex. We conclude it does not. The Association does not claim its activities are protected by the First Amendment to the United States Constitution. It acknowledges that, in this context, Federal constitutional protection is not as broad as that provided by the California Constitution. (Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1668, 1669, fn. 5; see generally Comment, Shopping For a Public Forum: Pruneyard Shopping Center v. Robins, Publicly Used Private Property, And Constitutionally Protected Speech (1981) 21 Santa Clara L. Rev. 801, 802-803 (hereinafter Publicly Used Private Property).) Our analysis begins with the seminal opinion of Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), in which the Supreme Court recognized a limited state constitutional right to engage in expressive activity on private property.

A. Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899

 In Pruneyard, supra, the Supreme Court held that sections 2 and 3 of article I of the California Constitution protect the exercise of nondisruptive free speech and petition rights in a large, privately-owned shopping center.[FOOTNOTE 3] (23 Cal.3d at p. 910.) Central to its holding was the Court' s recognition that urban business districts arrayed along public streets have yielded many of their historic functions to the suburban shopping mall situated on private property. The mall, in many communities, has replaced central business districts as the favored forum for public congregation. (Id. at pp. 907, 910, fn. 5.) Under these circumstances, "Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those [free speech] rights." (Id. at p. 910.)

 The Pruneyard court recognized the competing constitutional guarantees attaching to private ownership of property. (Supra, 23 Cal.3d at p. 906.) However, because the owner of the shopping center had "' "fully opened his property to the public," ' "the impairment of his property rights caused by recognition of the petitioners' free speech rights was "' "largely theoretical." ' "(Id. at p. 910.) In that situation, the constitutional protection of free speech and petition rights outweighed the owner' s interest in controlling his property. Even in so concluding, the court made very clear that its holding was confined to the situation before it. "' It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations . . . would not markedly dilute defendant' s property rights.' "(Id. at pp. 910-911, brackets in original.)

B. Pruneyard' s Limited Application to Other Private Property

 In this context we consider whether Pruneyard' s limited guarantee extends to the private apartment buildings at issue here. Appellate decisions applying Pruneyard focus on whether the owner has so opened up his property for public use as to make it the functional equivalent of a public forum. (See, e.g., Allred v. Shawley (1991) 232 Cal.App.3d 1489, 1501-1502; Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390-1391; Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at p. 1671; Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1630; Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 837.) "' [T]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.' "(Schwartz-Torrance Investment Corp. v. Bakery & Confectionary Workers' Union (1964) 61 Cal.2d 766, 771, cited with approval in Pruneyard, supra, 23 Cal.3d at pp. 909, 910.)

 The court in Allred v. Shawley, supra, 232 Cal.App.3d 1489, held Pruneyard did not protect picketing on a medical clinic' s private parking lot. In contrast to a large retail store, "which holds out an invitation to the entire buying public in general," the clinic largely served a prearranged clientele. It was not fully open to the local community. It did not provide retail sales or other services "essential to all community members." (Id. at p. 1501.) Although the Allred court went on to examine other factors, it noted its determination that the property' s owner had preserved its private character was sufficient to conclude the matter. (Id. at pp. 1501-1502.)

 Focusing on the degree to which the property had been dedicated to pubic use, Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at pages 1671-1672, reflects the same conclusion on similar facts. The court there emphasized that, while the public was invited to use the particular services performed by specific tenants of the medical building, the specialized nature of the services offered and the absence of any invitation to the general public to "congregate, relax, visit, seek out entertainment, browse and shop" differentiated the medical center from a large shopping mall or historically recognized public forums such as parks, streets or public sidewalks.

 In Bank of Stockton v. Church of Soldiers, supra, 44 Cal.App.4th 1623, holding church members were not entitled to solicit funds on a private sidewalk between a bank and its parking lot, the court distinguished Pruneyard on similar grounds: "[The bank] does not provide a place for the general public to congregate; indeed, security issues would make it undesirable to have the general public, that is, those who do not need to transact business with the Bank, present. Generally, only those who are transacting business with the Bank are invited to the property. The Bank bears no resemblance to the 21-acre shopping center in Robins, where the owners lured a large number of people daily to congregate and take advantage of the amenities offered. [Citation.]" (Id. at p. 1630.) Summarizing post-Pruneyard holdings, the court observed that "[t]he finding of a ' modest retail establishment' [not subject to Pruneyard speech rights] has been bolstered when the establishment did not provide a place for the general public to congregate and catered to a specific clientele, thus making it less ' public.' [Citation.]" (Id. at pp. 1629-1630.)

 Here, Golden Gateway Center is decidedly private property. It is a security facility with doormen and 24-hour security patrols. The residential buildings do not offer retail, restaurants or entertainment facilities. Access is limited to Golden Gateway' s residential tenants and their invitees. For reasons of security, privacy and cleanliness, building management has consistently denied public access, even to its commercial tenants, to disseminate advertising or other materials. This emphasis on security and privacy is made clear to each potential resident through the Building Standards incorporated into each lease. In contrast to the invitation to the general public extended by a forum like a large shopping mall, Golden Gateway has thus maintained the private nature of its residential buildings. Far from inviting the general public, it takes clear steps to admit only a discrete group of individuals. In this context, Pruneyard' s extension of constitutional free speech rights to the quasi-public forum of a large shopping center is inapplicable.

 Our conclusion finds support in Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d 816 (Laguna Publishing). Laguna Publishing addresses whether a private, gated residential community could constitutionally prohibit a publisher from distributing its free, unsolicited newspaper while permitting another publisher to do so. (Id. at pp. 820, 832.) The community covered 8 square miles with about 20,000 residents. It maintained its own roads and streets, parks, recreation facilities, security force, and self-government to manage internal matters. (Id. at p. 843, fn. 10.) Despite these similarities to a traditional town, the court reasoned the absence of broad public access to the residential community rendered inapplicable Pruneyard' s constitutional free speech right to distribute literature on private property. (Id. at pp. 837, 843.) Importing notions of state action developed in equal protection jurisprudence, however, the court held that those characteristics combined with the property owner' s discriminatory exclusion of one newspaper over another represented an abridgment of constitutional free speech rights. (Id. at pp. 841-843.) Absent such discrimination, the court noted, the property owner could choose to exclude all unsolicited newspapers from the residential community. (Id. at p. 843.) Such is the case here.

 The Association' s contrary assertions are not persuasive. It urges that Pruneyard entitles an individual to exercise free speech rights once rightfully on any particular premises. Pruneyard extends no such constitutional aegis. Key to Pruneyard' s holding is the public nature of the shopping center and its importance as a public forum. Indeed, the Pruneyard court carefully distinguished a shopping center from private residences or smaller retail establishments which, it intimated, do not share those characteristics. (Supra, 23 Cal.3d at pp. 910-911.) If Pruneyard expressly left open whether a patron of a small retail establishment possesses the same free speech rights as the patron of a large mall. It did not decide that any person lawfully on any property is constitutionally entitled to exercise free speech rights. We decline the Association' s invitation to stretch Pruneyard so far beyond its designated dimensions.

 Nor does Inganamort v. Merker (N.J. Super. 1977) 372 A.2d 1168 buttress the Association' s attempt to fit Pruneyard to the facts before us. The Inganamort court concluded after brief analysis that a tenant' s right to distribute noncommercial written material pertaining to the complex under apartment doors "must be deemed an incidental right" of tenancy under New Jersey common law. The opinion does not purport to apply California law, and its conclusory observation that "[t]he common areas and passageways in such a complex take on the attributes of quasi-public streets" (id. at p. 1170) is therefore of little value in applying Pruneyard.

 The Association raises no contention, and there are no grounds for contending, that Golden Gateway' s apartment buildings warrant treatment as a quasi-public forum under the "company town" rule articulated in Marsh v. Alabama (1946) 326 U.S. 501. Nor does this case implicate expressive rights guaranteed by state or federal labor statutes and policy. (See, e.g., Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317.) Neither the nature nor the use of the private property at issue transforms it into the functional equivalent of a public forum. The Association does not enjoy a constitutional free speech right to distribute its literature on its premises.

III...........................

Summary and Disposition

 We conclude the Association has neither a contractual, constitutional nor statutory right to distribute unsolicited newsletters door-to-door to residential tenants in violation of Golden Gateway' s Building Standards. Accordingly, we hold the court erred in granting judgment in favor of the Association.

 The judgment is reversed. The matter is remanded to the trial court with instructions to issue an order enjoining the Association from leafletting in violation of the Golden Gateway Building Standards.

Corrigan, Acting P.J.

We concur: Parrilli, J., and Walker, J.

::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::

FN*. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part I and part III.

FN1. Access to commercial establishments located on the street level is not at issue here.

FN3. California Constitution article I, section 2, states in relevant part: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Article I, section 3, states: "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good."