All posts by Steve Tinnelly

Civil Code Section 3479. “Nuisance” Defined.

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Mortgagee (Lender) Approval for CC&R Amendments

One of the requirements applicable to amending an association’s CC&Rs is that approval for the amendment must be obtained by the percentage of members required by the CC&Rs “and any other person whose approval is required” by the CC&Rs. (Civ. Code § 4270(a)(1); See also “Amendments to Declaration (CC&Rs).”) When an association seeks to amend certain provisions of the CC&Rs (often defined as “material modifications” or “material amendments”), the CC&Rs may require approval for the amendment from not only the members, but also from the mortgagees (lenders) holding first mortgages on the lots or units within the association’s development. The language of such requirements is typically modeled in the following form:

“Any material modifications to this Declaration shall not become effective without the prior written consent of at least seventy-five percent (75%) of the Mortgagees holding first Mortgages on the Residential Lots within the Project.”

Material modifications that require mortgagee approval often pertain to provisions in the CC&Rs governing how assessments are allocated, the scheme for enforcement of the governing documents, the use of insurance proceeds, and the allocation of maintenance responsibilities.

“Written Consent” of Mortgagees that Fail to Return Ballots
Obtaining mortgagee approval for CC&R amendments is often difficult for an association because mortgagees and lenders rarely respond to an association’s ballot issues. The California Court of Appeal addressed this problem in the case of Fourth La Costa Condominium Owners Association v. Seith (2008) 159 Cal.App.4th 563. In Seith, the association was pursing a CC&R amendment that required “written consent” of the mortgagees. The association mailed letters and ballots to the mortgagees as required by the association’s CC&Rs. The letters were sent via Certified Mail, Return Receipt Requested (“RRR”), and informed each of the mortgagees that their signature on the RRR would be deemed “consent” of the proposed amendment if the mortgagees did not return their respective ballots within thirty (30) days. (Seith, at 573.) The trial court found the association’s approach to be an acceptable method of obtaining written consent from the mortgagees, and the Court of Appeal ultimately agreed with the trial court’s decision:

“As the court noted, the CC&R’s required an affirmative vote of owners, but only written consent by lenders. The court explained ‘[t]his would tend to indicate that the CC&R’s, as originally drafted, contemplated a distinction between the forms of approval required from each group, with the approval from the latter group being more relaxed in form. The CC[&]R’s did not specify the method by which the consent may be obtained. [The Owners Association’s] method of assuring receipt of the proposed changes by the lenders and thereafter providing them with 30 days within which to reject the changes is as good as any.’ We agree with the court’s assessment.” (Seith, at 573.)

Business & Professions Code Section 5037. Accountant Records & Working Papers; Custody & Production.

(a) All statements, records, schedules, working papers and memoranda made by a licensee or a partner, shareholder, officer, director, or employee of a licensee, incident to, or in the course of, rendering services to a client in the practice of public accountancy, except the reports submitted by the licensee to the client and except for records which are part of the client’s records, shall be and remain the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary. No such statement, record, schedule, working paper, or memoranda shall be sold, transferred, or bequeathed, without the consent of the client or his or her personal representative or assignee, to anyone other than one or more surviving partners or stockholders or new partners or stockholders of the licensee, or any combined or merged firm or successor in interest to the licensee.

(b) A licensee shall furnish to his or her client or former client, upon request and reasonable notice:

(1) A copy of the licensee’s working papers, to the extent that those working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client.

(2) Any accounting or other records belonging to, or obtained from or on behalf of, the client which the licensee removed from the client’s premises or received for the client’s account. The licensee may make and retain copies of documents of the client when they form the basis for work done by him or her.

Pre-Lien Dispute Resolution

Where an owner fails to remit assessment payments within a timely fashion, an association may record an assessment lien against the owner’s property to act as security for the payment of the owner’s delinquent assessment debt. (Civ. Code § 5675(a); See also “Notice of Delinquent Assessment (Assessment Lien).”) The assessment lien effectively prevents the owner from transferring title to the owner’s property and potentially from re-financing the property without first satisfying the owner’s assessment debt and having the assessment lien released.

Pre-Lien Offer of Internal Dispute Resolution (IDR)
Prior to recording an assessment lien, an association is required to offer the delinquent owner the opportunity to participate in internal dispute resolution (“IDR” aka “Meet & Confer”). (Civ. Code § 5670).) The purpose of IDR is to provide a non-judicial forum to resolve disputes between an owner and the association that will not result in a fee or charge to the owner. For information on the IDR procedure and its requirements, see “Internal Dispute Resolution (IDR).” When the association’s pre-lien offer of IDR is accepted by the owner, the association must participate in IDR prior to recording the assessment lien. (Civ. Code §§ 5670, 5910(c).)

Right to Request IDR; Pre-Lien Letter
At least thirty (30) days prior to recording an assessment lien, the association is required to provide the owner with a pre-lien letter that is sent via certified mail. (Civ. Code § 5660; See also “Pre-Lien Letter.”) The pre-lien letter must contain various items of information; one of those items is a statement as to the owner’s right to dispute the assessment debt by submitting a written request for IDR to the association. (Civ. Code § 5660(e).) If the owner requests IDR before the assessment lien is recorded, the association must participate in IDR prior to recording the assessment lien. (Civ. Code § 5670.)

Clotheslines & Drying Racks

New Civil Code Section 4753 was recently added to the Davis-Stirling Act in order to render void and unenforceable any provision of an association’s governing documents that “effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.” (Civ. Code § 4753(c).)

“Clothesline” and “Drying Rack” Defined

  • “Clothesline” – For the purposes of Section 4753, a “clothesline” is defined as a “cord, rope or wire from which laundered items may be hung to dry or air.” However, a “balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline.” (Civ. Code § 4753(a).)
  • “Drying Rack” – For the purposes of Section 4753, a “drying rack” is defined as an “apparatus from which laundered items may be hung to dry or air.” However, a “balcony, railing, awning, or other part of a structure or building shall not qualify as a drying rack.” (Civ. Code § 4753(b).)

Applies to “Backyards Designated for the Exclusive Use of the Owner”
Section 4753 applies “only to backyards that are designated for the exclusive use of the owner.” (Civ. Code § 4753(d)(3).) The language in Section 4753 does not state whether an owner has rights to install a clothesline or drying rack in other areas (i.e., in the front yard of the owner’s property or in common area). The analysis and legislative comments regarding Section 4753 that were generated before the law was ultimately enacted indicate an intent to limit those rights solely to “backyards”:

“Owners of a separate interest in [an association] would be free to use clotheslines and drying racks, subject to reasonable restrictions imposed by the [association], in backyards that are designated for the exclusive use of the owner.  [Section 4753] would not preclude [associations] from restricting the use of clotheslines in other areas of a separate interest, like a front yard, or in common areas.” (See Senate Judiciary Cmte Report on AB 1448 (7/7/15).)

“Reasonable Restrictions” on an Owner’s Backyard
Section 4753 allows for an association to impose “reasonable restrictions on an owner’s backyard for the use of a clothesline or drying rack,” where “reasonable restrictions” are defined as restrictions “that do not significantly increase the cost of using a clothesline or drying rack.” (Civ. Code § 4753(d).) However, unlike in the context of restrictions on solar panels, the Civil Code does not specify what exactly constitutes a “significant” increase in cost for the purposes of Section 4753.

“Reasonable Rules” Governing Clotheslines or Drying Racks
Section 4753 allows for an association to establish and enforce “reasonable rules governing clotheslines or drying racks.” (Civ. Code § 4753(e).) Section 4750.10 does not define what constitutes a “reasonable rule” in this respect.

Tenant’s Rights: Civ. Code § 1940.20
Section 4753 was enacted concurrently with Civil Code Section 1940.20. Section 1940.20 grants a tenant the right to use clotheslines or drying racks in the tenant’s “private area” if approved by the tenant’s landlord and subject to various conditions. Those conditions generally include: not interfering with the maintenance of the property, not creating a health or safety hazard, not blocking doorways, not interfering with walkways, not affixing to a building without the landlord’s consent, not violating reasonable time or location restrictions, and obtaining the landlord’s consent. (See Civ. Code § 1940.20(b).) A tenant’s “private area” is defined as “an outdoor area or an area in the tenant’s premises enclosed by a wall or fence with access from a door of the premises.” (Civ. Code § 1940.20(a)(3). )

Related Links

AB 1448 Signed! HOA Bans on Clotheslines Get ‘Hung out to Dry’Published on HOA Lawyer Blog (10/12/15)

Golden Gateway Center v. Golden Gateway Tenants Association

(2001) 111 Cal.Rptr.2d 336

[Freedom of Speech; Private Property] Actions of a private property owner constitute state action for purposes of California’s free speech clause only if the property is freely and openly accessible to the public.

Bartko, Zankel, Tarrant & Miller, Glenn P. Zwang and Howard L. Pearlman, San Francisco, for Plaintiff, Cross-defendant and Appellant.
James S. Burling, Sacramento, and Harold E. Johnson, for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.
Edward J. Sack; Law Offices of Jo Anne M. Bernhard and Jo Anne M. Bernhard, Sacramento, for California Business Properties Association and International Council of Shopping Centers as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant.
Pahl & Gosselin, Stephen D. Pahl and Karen M. Kubala, San Jose, for California Apartment Association as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.
De Vries & Gold, Law Offices of Robert De Vries, Carolyn Gold and Robert De Vries, San Francisco, for Defendant, Cross-complainant and Respondent.
Jonathan P. Hiatt; Altshuler, Berzon, Nussbaum, Rubin & Demain and Scott A. Kronland, San Francisco, for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.
Alan L. Schlosser, San Francisco; Morris D. Lipson; Chapman, Popik & White and Susan M. Popik, San Francisco, for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.
Michael Somers, Gerald J. Van Gemert and James Arthur Judge, Tustin, for Association of Alternative Postal Systems, Inc., Los Angeles Newspaper Group, Advertising Consultants, Inc., CIPS Marketing Group, Inc., Turtle Ridge Media Group, Inc., and National Directory Company, Inc., as Amici Curiae on behalf of Defendant, Cross-complainant and Respondent.

BROWN, J.

In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), affd. sub nom. PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.) Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California’s free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under article I, section 2, subdivision (a) of the California Constitution.[FN.1] We conclude it does not.

Background

Golden Gateway Center (Golden Gateway), a limited partnership, owns a retail and residential apartment complex (Complex) in downtown San Francisco. The Complex consists of four high-rise buildings and a group of townhouses and contains 1,254 residential units. Although the Complex contains a number of retail establishments at the ground level, these retail establishments are separate from the residential [339] units and do not have access to the residential portions of the Complex.

In the residential portion of the Complex, Golden Gateway emphasizes privacy and security. Consistent with this emphasis, Golden Gateway provides doormen during the daytime and 24 hour roving security patrols, and limits access to residential tenants and their invitees. Golden Gateway also promulgates building standards incorporated by reference in every residential lease agreement. At all relevant times, these standards banned all solicitation in the building. As part of their lease agreements, all residential tenants agree to abide by these standards, and Golden Gateway retains the right to “make amendments to the Building Standards and adopt further Building Standards as in Owner’s opinion are reasonable or desirable for the proper and orderly care, use and operation of the Apartment and Building and its grounds. . . .”

In 1982, a group of residential tenants in the Complex formed a tenants association called the Golden Gateway Tenants Association (Tenants Association). Since its inception, the Tenants Association has periodically distributed a newsletter on or under the apartment doors of all residential tenants. For approximately 11 years, building management did not object to the distribution of these newsletters.

In 1993, however, the manager of the Complex asked the Tenants Association to stop distributing newsletters on or under apartment doors. In support, the manager cited the prohibition against “soliciting within the building” found in the building standards in effect at that time. The Tenants Association responded with several letters from attorneys asserting its constitutional right to free speech and threatening legal action. Hoping to avoid litigation, the manager told the Tenants Association that “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.” Based on this representation, the Tenants Association resumed its “practice of distributing GGTA newsletters to all tenants by sliding them under doors. . . .” Neither building management nor the Tenants Association, however, discussed or defined what “a reasonable manner” meant.

Golden Gateway hired a new building manager in 1995. In early 1996, the Tenants Association sharply increased its leafletting activity and distributed at least eight separate newsletters and notices from February to May. Because of this increased activity, the new manager asked the Tenants Association to scale back its leafletting and to limit its distributions to newsletters. Citing the First Amendment of the United States Constitution, the Tenants Association refused and continued to distribute its newsletter to all residential tenants.

Soon after, Golden Gateway revised its building standards. The revised standards stated in relevant part: “Any solicitation within the building is absolutely forbidden. This includes, for example, solicitation for profit, political purpose or any other reason, whether in writing or in person . . . . [¶] Leafleting within the building is absolutely forbidden. This includes, for example, posting leaflets or notices anywhere in the buildings other than on the bulletin boards located in the laundry rooms, sliding leaflets or other papers underneath tenants’ doors, placing leaflets or other papers on or about tenants’ doors, or leaving multiple copies of leaflets or other papers in any common areas. The only exception to this rule is where a tenant specifically requests that papers be delivered to him or her either under or in front [340] of his or her door. . . .” Golden Gateway mailed a copy of the new standards to each residential tenant and explained that each tenant must comply with these standards pursuant to his or her lease agreement.

Despite the new building standards, the Tenants Association continued to distribute its newsletter door-to-door. Golden Gateway then filed a complaint, seeking to enjoin the Tenants Association from distributing leaflets “in and around their apartment doors.” The Tenants Association responded by filing a cross-complaint for injunctive and declaratory relief. The cross-complaint contended, among other things, that the Tenants Association had a constitutional right to distribute its newsletters.

The trial court initially issued a preliminary injunction enjoining the Tenants Association from leafletting. After trial, however, the court dissolved the injunction and held that the Tenants Association had “a binding contractual right to distribute its newsletter throughout” the Complex “by placing its newsletters under the doors of all tenants, on the door knobs of tenants, and on bulletin boards that are provided.” Upon resolving the case on contractual grounds, the court declined to reach the constitutional free speech issues.

The Court of Appeal reversed. After concluding that Golden Gateway did not enter into “a binding lease agreement modifying its Building Standards” with the Tenants Association based on the first manager’s representation, the court held that the Tenants Association had no right to leaflet in the Complex under the United States or California Constitution.

We granted review to determine: (1) whether the tenants association of a large apartment complex has the right, under the California Constitution, to distribute its newsletter and other leaflets concerning residence in the complex to tenants in the building; and, if so, (2) whether a ban on the distribution of these materials to tenants constitutes an unreasonable time, place and manner restriction on free speech.

Discussion

I

In Hudgens v. National Labor Relations Bd. (1976) 424 U.S. 507, 519-520, 96 S.Ct. 1029, 47 L.Ed.2d 196 (Hudgens), the United States Supreme Court held that a union had no federal constitutional right to picket in a shopping center because the actions of the private owner of the shopping center did not constitute state action. Hudgens, supra, at pages 518-519, 96 S.Ct. 1029, expressly reversed Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (Logan Plaza), by clarifying and extending the court’s ruling in Lloyd Corp., Ltd. v. Tanner (1972) 407 U.S. 551, 570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (Lloyd) (holding that political leafletters had no federal free speech rights in a privately owned shopping mall). As acknowledged by both parties, Hudgens and Lloyd establish that the Tenants Association has no right to distribute its newsletter door-to-door under the United States Constitution. The lack of federal constitutional protection does not, however, “limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” (PruneYard Shopping Center v. Robins, supra, 447 U.S. at p. 81, 100 S.Ct. 2035.) Thus, the Tenants Association may still prevail if the free speech clause of the California Constitution protects its leafetting activities. (Art. I, § 2, subd. (a).) As explained below, we conclude it does not.

[341] Article I, section 2, subdivision (a) states: “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.” Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power (see U.S. Const., 1st Amend.),[FN.2] the California Constitution gives “[e]very person” an affirmative right to free speech (Cal. Const., art. I, § 2, subd. (a)). Accordingly, we have held that our free speech clause is “more definitive and inclusive than the First Amendment. . . .” (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116.)

Consistent with this more expansive interpretation of California’s free speech clause, we have declined to follow the First Amendment jurisprudence of the United States Supreme Court in certain circumstances. Perhaps our most noteworthy departure from this jurisprudence occurred in Robins. In Robins, the majority reversed Diamond v. Bland (1974) 11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460 (Diamond II), and held that “sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.) In doing so, the majority rejected the approach of Hudgens and Lloydand reasserted the independent force of the California Constitution.[FN.3] (See Robins, at pp. 908-909, 153 Cal.Rptr. 854, 592 P.2d 341.)

Despite the clarity of its ultimate disposition, Robins was less than clear “as to the scope of the free speech rights it was recognizing.” (Brownstein & Hankins, Pruning Pruneyard: Limiting Free Speech Rights Under State Constitutions on the Property of Private Medical Clinics Providing Abortion Services (1991) 24 U.C. Davis L.Rev. 1073, 1090 (Pruning Pruneyard)) For example, Robins did not address the threshold issue of whether California’s free speech clause protects against only state action or also against private conduct. (See Laguna Publishing Co. v. Golden Rain Foundation(1982) 131 Cal.App.3d 816, 838, 182 Cal.Rptr. 813 (Laguna Publishing) [finding Robins “intriguing” because it never discussed or impliedly dealt with “the phenomenon of state action“].) Robins also provided little guidance on how to apply it outside the large shopping center context. (Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at p. 1092 [Robins did not provide “useful guidance on how this new constitutional journey was to proceed”].) Not surprisingly, numerous legal commentators have pointed out and questioned these curious omissions in Robins.[FN.4] Moreover, most of [342] our sister courts interpreting state constitutional provisions similar in wording to California’s free speech provision have declined to followRobins.[FN.5] Indeed, some [343] of these courts have been less than kind in their criticism of Robins. (See, e.g., SHAD Alliance, supra, 498 N.Y.S.2d 99, 488 N.E.2d at p. 1214, fn. 5; Jacobs, supra, 407 N.W.2d at p. 841.)

Nonetheless, Robins has been the law in California for over 20 years. Whether or not we would agree with Robins’s recognition of a state constitutional right to free speech in a privately owned shopping center if we were addressing the issue for the first time, we are obliged to follow it under principles of stare decisis. “`[E]ven in constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some “special justification.”‘” (Dickerson v. United States (2000) 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405, quoting United States v. International Business Machines Corp. (1996) 517 U.S. 843, 856, 116 S.Ct. 1793, 135 L.Ed.2d 124.) Because Robins is embedded in our free speech jurisprudence with no apparent ill effects, no such justification exists here.

We are, however, mindful of the ambiguities in Robins. In the hopes of clarifying Robins and providing some guidance as to the scope of the free speech rights guaranteed by the California Constitution, we now answer some of the questions left open by Robins. Based on these answers, we hold that the Tenants Association has no state constitutional right to leaflet in the Complex.

II

“[B]efore state courts can fully resolve . . . substantive free speech . . . issues, a proper constitutional analysis requires that they first address the threshold issue of whether the . . . suits are barred by a state action requirement.” (Note, Post Pruneyard Access to Michigan Shopping Centers: The “Mailing” of Constitutional Rights (1983) 30 Wayne L.Rev. 93, 97, fn. omitted (Post Pruneyard Access); see also Private Property, Public Property, supra, 62 Alb. L.Rev. at p. 1239 [state action question should be “a threshold issue” in any analysis of constitutional free speech rights].) Thus, by neglecting to mention state action, Robins created a noticeable gap in its reasoning and left the existence of a state action limitation on California’s free speech clause in doubt. (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Free Speech Access to Shopping Centers, supra, 68 Cal. L.Rev. at p. 645.) Indeed, our lower courts have commented on this “intriguing” Omission. (Laguna Publishing, supra, 131 Cal.App.3d at p. 838, 182 Cal. Rptr. 813.) Not surprisingly, the uncertainty surrounding the fate of the state action limitation has spawned a debate over the wisdom of extending our free speech clause to private actors.[FN.6] We now [344] fill this gap and conclude that California’s free speech clause contains a state action limitation.

As an initial matter, we note that the first sentence of article I, section 2, subdivision (a) contains no explicit state action limitation. The California Constitution gives every person the right to “freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” (Art. I, § 2, subd. (a).) The breadth of this language combined with the framers’ arguable understanding of its ramifications suggest an intent to protect the right to free speech against private intrusions. (Private Actors, supra, 17 Hastings Const. L.Q. at pp. 119-121.) The express prohibition against a “law” restraining or abridging free speech found in the second sentence of the clause arguably bolsters such an interpretation. (Art. I, § 2, subd. (a).)

Nonetheless, the absence of an explicit state action limitation in article I, section 2, subdivision (a) is not dispositive. In the past, we have found a state action requirement even though the language of the California constitutional provision in question-article I, section 7—did not expressly state such a requirement. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 468, 156 Cal.Rptr. 14, 595 P.2d 592 (Gay Law Students Assn.); see also Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333, 70 Cal.Rptr.2d 844, 949 P.2d 941 [stating that the search and seizure provision of the California Constitution—article I, section 13—contains a state action limitation even though the provision contains no such limiting language].) We declined to apply that provision “without regard to any state action doctrine whatsoever” absent some “suggestion” in the provision’s history for abandoning such a limitation. (Gay Law Students Assn., at p. 468, 156 Cal.Rptr. 14, 595 P.2d 592.) Thus, “[t]he omission [of state action language] . . . does not necessarily evince an intent to apply constitutional guarantees to private parties.” (Margulies, A Terrible Beauty: Functional State Action Analysis and State Constitutions (1988) 9 Whittier L.Rev. 723, 729 (A Terrible Beauty).)

Moreover, the language of article I, section 2, subdivision (a) equally supports a state action limitation. The second sentence of the clause—which prohibits any “law” from restraining or abridging “liberty of speech” (ibid.)—indicates an intent to protect against only state actions. “Adding this prohibition on oppressive laws might mean that, although the delegates wished to declare generally the sanctity of free expression, they feared only government intrusions.” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 121.) Such a reading is consistent with the view courts take of the Fourth Amendment, which is similar in structure to California’s free speech clause. (Ibid.)

Thus, as acknowledged by the primary scholar cited by the dissent, the language of California’s free speech clause is ambiguous and supports either the presence or absence of a state action limitation. (Private Actors, supra, 17 Hastings Const. L.Q. at p. 125 [“The text does not compel a finding that private parties are bound; it only creates an opportunity to do so”]; see [345] id. at p. 121; see also A Terrible Beauty, supra, 9 Whittier L.Rev. at p. 729.) Where, as here, the text is “not conclusive” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 121), we must look to the history behind California’s free speech clause for guidance (see Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill)). This history indicates that the framers intended to impose a state action requirement. (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468, 156 Cal.Rptr. 14, 595 P.2d 592 [finding a state action limitation based on the history behind the due process and equal protection clauses of the California Constitution].)

We initially note that the debates over the California Constitution do not show an intent to extend the reach of its free speech clause to private actors. Although “the designation of article I’s free speech clause has changed appreciably over the years . . . its language has not.” (Gerawan, supra, 2A Cal.4th at p. 489, 101 Cal. Rptr.2d 470, 12 P.3d 720.) Thus, the current incarnation of California’s free speech clause is virtually identical to the free speech clause in the original California Constitution adopted in 1849. (Compare Cal. Const., art. I, § 2, subd. (a), with Cal. Const, of 1849, art. I, § 9.) The original framers adopted this language with no debate. (See Browne, Rep. of Debates in Convention of Cal. on Formation of State Const. (1973 ed.) p. 41 (Browne); see also Private Actors, supra, 17 Hastings Const. L.Q. at p. 119.) In fact, “[t]he debates, which on other provisions are quite detailed, contain no record of any `original intent’ of these delegates in regard to the private/public distinction.” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 119.) Thus, the debates over California’s free speech clause give no indication that the framers wished to guard against private infringements on speech.

Meanwhile, the historical antecedents of our free speech clause strongly suggest that the framers of the California Constitution intended to include a state action limitation. Many of the framers of the 1849 California Constitution came from New York. (See Browne, supra, at pp. 478-479.) Not surprisingly, in drafting the free speech clause, the framers borrowed from the free speech clause of the New York Constitution. (Browne, supra, at p. 31.) Because they adopted New York’s free speech clause virtually unchanged and with no debate (Private Actors, supra, 17 Hastings Const. L.Q. at p. 119), the history behind New York’s clause is relevant to interpreting California’s free speech clause (see Citizens for Parental Rights v. San Mateo County. Bd. of Education (1975) 51 Cal.App.3d 1, 25-26, fn. 26, 124 Cal.Rptr. 68 [finding the history behind the New York Constitution relevant to interpreting a clause of the California Constitution based on a clause in the New York Constitution]).

A review of this history reveals that the framers of the New York Constitution intended its free speech clause “to serve as a check on governmental, not private, conduct.” (SHAD Alliance, supra, 498 N.Y.S.2d 99, 488 N.E.2d at p. 1214.) The free speech clause of the New York Constitution was adopted in 1821 as part of that Constitution’s Bill of Rights and remained essentially unchanged after New York revised its Constitution in 1846.[FN.7] [346] “The explicit reason [behind the adoption of New York’s free speech clause] was to prevent the legislature from restricting these freedoms by statute.” (Galie, The New York State Constitution (1991) p. 51, fn. omitted.) As one of the delegates to New York’s 1821 constitutional convention explained, the free speech clause “was doubtless intended to secure the citizens . . . against the arbitrary acts of the legislature . . . .” (Carter & Stone, Reports of the Proceedings and Debates of the Convention of 1821 (1821) p. 167 (Reports of the Proceedings).) In addition, the delegates to the 1821 New York constitutional convention viewed the free speech clause as protection against the “usurpations by our judiciary” of libel actions from the jury. (Id. at p. 490; see also id. at p. 167.) The framers of New York’s free speech clause, however, were not concerned with private interference with speech. “[W]hile most of the delegates were eager to defend the public’s rights against official or legal interference, they were unwilling to countenance unlimited freedom of expression . . . .” (Casias, The New York State Constitutional Convention of 1821 and its Aftermath (Colum.U.1967) p. 139.)

Indeed, the framers of the 1821 New York Constitution viewed the Constitution’s Bill of Rights, including its free speech clause, as a bulwark against government oppression, not private conduct. (See Reports of the Proceedings, supra, at pp. 59, 163, 171-172.) As one delegate explained, “[a] bill of rights setting forth the fundamental provisions of our government, has always been held sacred, and I have seen, as other gentlemen familiar with legislation must have seen, the utility of this bill of rights . . . one calculated to restrain useless and improvident legislation.” (Id. at p. 163.) Another delegate later reiterated this understanding: “[A] bill [of rights] like this reported, is not a bill enumerating the rights of the people, but restricting the power of the legislature.” (Id. at p. 172.) According to this same delegate, a “bill of rights, setting forth the privileges of the people would be useless, nay, might be injurious; because in purporting to set forth the rights of the people, if any were omitted, they might be considered to be yielded.” (Ibid.)

This elucidation of the intent behind New York’s free speech clause also conforms with the framers’ understanding of the overarching purpose behind the 1821 New York Constitution. “The intent of the constitution that we are framing, and of every constitution, is to distribute to these [government] agents the power thus derived from the people:—to mark the limits of their authority, and provide the means of restraining them in its exercise, within their appropriate sphere.” (Reports of the Proceedings,supra, at p. 110.)

Pre-1849 judicial statements regarding the scope of New York’s free speech clause further confirm that the framers of the New York Constitution intended to protect against only government encroachments. As the Chancery Court of New York observed, “[t]hat great principle of a free government] the liberty of speech and of the press, is very wisely guarded by a constitutional provision against the encroachment of either legislation or judicial power.” (Wetmore v. Scovell (N.Y.Ch. 1842) 3 Edw. Ch. 543, 562, italics added.)

Thus, the framers of the New York Constitution undoubtedly intended that New York’s free speech clause protect against only state action—and not private conduct. Because the framers of the California Constitution adopted New York’s free speech [347] clause almost verbatim, we reasonably conclude they had the same intent as their New York counterparts. (Cf. Stockton Civic Theatre v. Board of Supervisors (1967) 66 Cal.2d 13, 21, 56 Cal.Rptr. 658, 423 P.2d 810 [finding that statutory language taken verbatim from a constitutional provision must be given the same meaning as the language in the constitutional provision “unless a clear legislative intent to the contrary appears”].)

This conclusion follows logically from the mindset of the framers of the 1849 California Constitution during its drafting. General Bennett Riley issued the call for the 1849 convention “for the purpose of providing such a government as California might need.” (Coy & Jones, California’s Constitution (1930) p. 12; see also Browne, supra,at pp. 3-4.) Thus, the framers of the 1849 California Constitution were focused on defining the scope of the government’s power. Consistent with this focus, various delegates observed that the Constitution should protect against governmental action. (See, e.g., Browne, supra, at pp. 92, 130 [“the object of this Convention is to limit the powers of the Legislature”; “We are guarding here against bad Legislatures”].) As a result, the California “Constitution of 1849 was not a grant of power to the Legislature but a limitation upon it.” (Conmy, The Constitutional Beginnings of California (1959) p. 23, fn. 48, italics added.) “It is abundantly clear that the draftsmen of the 1849 and 1879 constitutions regarded the California Constitution as the principal bulwark protecting the liberties of Californians from governmental encroachment.” (Grodin et al., The Cal. State Constitution (1993) p. 21, italics added.)

In any event, our extensive review of the history behind the adoption of California’s free speech clause reveals no evidence suggesting that the framers intended to protect against private encroachments. The lack of such evidence is hardly surprising given the prevailing perception of state constitutions in 1849, as expounded by the United States Supreme Court: “Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated.” (Barron v. City Council of Baltimore (1833) 32 U.S. (7 Pet.) 243, 247, 8 L.Ed. 672,italics added.) Indeed, “common law and civil law” historically “regulate[d] private conduct,” while constitutional law regulated “public or governmental conduct.” (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 409, italics added.) Thus, “[i]t would . . . be natural to expect that a declaration of rights contained in a state constitution pertains primarily to restrictions upon what the state may do to its citizens.” (Id. at p. 407, fn. omitted.) Based on the historical evidence suggesting that the framers of California’s free speech clause intended to protect against governmental—and not private— encroachments, and the absence of any evidence to the contrary, we see no grounds for reaching a different conclusion. (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468, 156 Cal.Rptr. 14, 595 P.2d 592.)

Robins does not alter our conclusion. Contrary to the dissent’s unsupported assertion, Robins did not necessarily reject a state action limitation. It could have “simply broadened the federal definition of `state action’ to embrace the peculiar facts of the case.” (Constructing an Alternative, supra, 21 Rutgers L.J. at p. 832.) Over the past 20 years, numerous commentators have explicitly and implicitly recognized such a possibility and noted that Robins left open the issue of whether [348] California’s free speech clause required state action.[FN.8]

Indeed, our refusal to abandon the state action requirement is fully consonant with Robins. Although Robins did not address the state action issue, it did rely heavily on California cases applying the pre-Lloyd decisions of the United States Supreme Court (Robins, supra, 23 Cal.3d at pp. 908-909, 153 Cal.Rptr. 854, 592 P.2d 341)—which, as Robins itself recognized, imposed a state action requirement (id. at p. 904,153 Cal.Rptr. 854, 592 P.2d 341). Moreover, the reasoning of Robins bears a “close similarity” to the reasoning of the United States Supreme Court in Logan Valley. (Pruneyard Shopping Center, supra, 57 Chi.-Kent L.Rev. at p. 389.) Finally, Diamond v. Bland (1970) 3 Cal.3d 653, 666, fn. 4, 91 Cal.Rptr. 501, 477 P.2d 733 (Diamond I), one of the decisions cited as persuasive authority in Robins, expressly acknowledged the need for state action in order to trigger constitutional free speech protections. Thus, Robins is wholly consistent with a state action requirement. (SeeCalifornia’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Free Speech Access to Shopping Centers, supra, 68 Cal. L.Rev. at p. 665.)

Our recent statement in Gerawan that California’s free speech clause “runs against the world, including private parties as well as governmental actors” does not dictate a contrary result. (Gerawan, supra, 24 Cal.4th at p. 492, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In Gerawan, we considered “whether a marketing order issued by the Secretary of Food and Agriculture of the State of California implicates any right to freedom of speech under either the First Amendment or article I by compelling funding of generic advertising.” (Id. at p. 476, 101 Cal.Rptr.2d 470, 12 P.3d 720.) Because the presence of a state actor was undisputed, we did not carefully consider whether California’s free speech clause requires state action. Therefore, the language in Gerawan suggesting that our free speech clause protects against private action is nonbinding dictum. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 620, 71 Cal.Rptr.2d 830, 951 P.2d 399 [A decision “is not authority for everything said in the . . . opinion but only `for the points actually involved and actually decided'”].) The absence of any analysis renders this dictum unpersuasive. (See People v. Mendoza(2000) 23 Cal.4th 896, 915, 98 Cal.Rptr.2d 431, 4 P.3d 265 [“`we must view with caution seemingly categorical directives not essential to earlier decisions and be guided by this dictum only to the extent it remains analytically persuasive'”].) In any event, the express repudiation of this language by one of the four signatories to Gerawan removes any impediment to reaching a different conclusion based on our careful consideration of the clause’s text and history here.

Nor does our decision in Hill to reject a state action limitation on California’s privacy clause compel a different result. Our decision in Hill was based solely on the official ballot pamphlet—which clearly contemplated that the constitutional right to privacy “may be enforced against private parties. . . .” (Hill, supra, 7 Cal.4th at p. 18, 26 Cal.Rptr.2d 834, 865 P.2d 633; see id at pp. 16-18, 19, 26 Cal.Rptr.2d 834, [349] 865 P.2d 633.) In contrast, the history behind California’s free speech clause contains no such indication and strongly suggests the contrary. (See ante, 111 Cal. Rptr.2d at pp. 344-347, 29 P.3d at pp. 803-806.)

Likewise, the existence of a clause in the 1849 Constitution granting wives a separate property right against their husbands does not support the rejection of a state action limitation. (Cal. Const, of 1849, art. XI, § 14.) Unlike the free speech clause, section 14 of article XI was not part of the Declaration of Rights—which historically set forth general principles of governance and established limitations on governments, not private individuals. (See California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 407.) Because the marital property rights provision is more analogous to particularized legislation, literal adherence to the words of that provision may be sufficient. However, where, as here, the constitutional provision announces a broad principle of government, we necessarily look beyond the text and consider the context and history of that provision. (See, e.g., Gay Law Students Assn., supra, 2ACal.3d at pp. 468-469, 156 Cal.Rptr. 14, 595 P.2d 592; Kruger v. Wells Fargo Bank(1974) 11 Cal.3d 352, 366-367, 113 Cal.Rptr. 449, 521 P.2d 441.) Thus, the existence of the marital property rights provision does not make irrelevant the fact that California’s free speech clause derives almost verbatim from a clause in the New York Constitution with a state action limitation. (See ante, 111 Cal. Rptr.2d at pp. 345-346, 29 P.3d at pp. 805-806.)

Finally, including a state action limitation comports with the decisions of most of our sister courts. (See State Constitutions and Protection of Freedom of Expression, supra, 33 U.Kan. L.Rev. at p. 318 [“The notion that free expression can, and potentially does, mean something slightly different in each state even when provisions read identically is not fully supportable”].) Virtually every state court construing a state constitutional provision with language similar to California’s free speech provision has found a state action requirement.[FN.9] Although their reasoning varies somewhat, they all explicitly or implicitly invoke the venerable principle that “[s]tate constitutions . . . serve as limitations on the otherwise plenary power of state governments.” (Woodland, supra, 378 N.W.2d at p. 347.) Under this principle, “the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.” (Southcenter Joint Venture, supra, 780 P.2d at p. 1286, fn. omitted.)

Like our sister courts, we recognize that this careful differentiation between government and private conduct has been a hallmark of American constitutional theory [350] since the birth of our nation and serves two important purposes. First, this demarcation is necessary to preserve private autonomy. “[B]y exempting private action from the reach of the Constitution’s prohibitions, [the state action limitation] stops the Constitution short of preempting individual liberty—of denying to individuals the freedom to make certain choices. . . . Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution’s demands.” (Tribe, American Constitutional Law (2d ed.1988) p. 1691.)

Second, a state action Umitation safeguards the separation of powers embodied in every American constitution by recognizing the limited ability of courts “to accomplish goals which are essentially legislative and political.” (Woodland, supra, 378 N.W.2d at p. 347.) “Without a state action limitation, the courts will possess the same authority as the legislature to limit individual freedoms, but will lack the degree of accountability which should accompany such power.” (Postr-Pruneyard Access, supra, 30 Wayne L.Rev. at p. 117.) As a result, absent a state action requirement, “the `rule of law* would approach in Sir Ivor Jennings’ caustic but realistic phrase, `rule by the judges alone.'” (Harvey, Private Restraint of Expressive Freedom: A Postr-Pruneyard Assessment (1989) 69 B.U. L.Rev. 929, 967, fn. omitted (Private Restraint).) Indeed, “[i]t is not the role of [courts] to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication.” (Cologne, supra, 469 A.2d at p. 1210.)

Neither the text of California’s free speech clause nor our case law reveals an intent to depart from these bedrock principles of constitutional jurisprudence. At the same time, the history behind the clause supports the inclusion of a state action limitation and contains nothing even suggesting a contrary possibility. Accordingly, we hold that article I, section 2, subdivision (a) only protects against state action.[FN.10] (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468, 156 Cal.Rptr. 14, 595 P.2d 592.)

III

Of course, finding a state action limitation does not end our inquiry. We must still determine the scope of this limitation. Robins established that state action for purposes of California’s free speech clause is not the same as state action for purposes of the First Amendment. (See Robins, supra, 23 Cal.3d at pp. 905-906, 153 Cal.Rptr. 854, 592 P.2d 341 [federal free speech decisions do not preclude a different result under the California Constitution].) In particular, California’s free speech clause, unlike its federal counterpart, runs against certain privately owned shopping centers. (Compare Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341, with Hudgens, supra, 424 U.S. at pp. 519-520, 96 S.Ct. 1029.) Robins did not, however, define the requisite state action or delineate the scope of free speech rights recognized by the California Constitution. Today, we take the first step in rectifying this situation and conclude that no state action exists here because the Complex is not freely open to the public.

[351] Although Robins did not mention state action and did not clearly define the scope of California’s free speech clause, we can still look to its reasoning for guidance. To support its holding that the California Constitution protects free speech in a privately owned shopping center, Robins relied heavily on the functional equivalence of the shopping center to a traditional public forum—the “`”downtown[ ]”‘” or “central business district[ ].” (Robins, supra, 23 Cal.3d at pp. 910, fn. 5, 907, 153 Cal.Rptr. 854, 592 P.2d 341; id. at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341.) In finding this functional equivalence, Robins emphasized, among other things, the shopping center’s open and unrestricted invitation to the public to congregate freely. (See id. at pp. 909-910, 153 Cal.Rptr. 854, 592 P.2d 341.) Indeed, Robins implicitly exempted “`an individual homeowner'” from the purview of California’s free speech clause, presumably because individual homes are not freely and openly accessible to the public. (Id. at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.) In doing so, Robins indicated that the applicability of California’s free speech clause depends in part on the public character of the property.

The importance of the public character of the property in determining the scope of California’s free speech clause derives support from Robins‘s reference to earlier California decisions finding a right to free speech on private property. Although all of these cases relied on the First Amendment and the pre-Lloyd decisions of the United States Supreme Court—Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (Marsh) and Logan Valley, supra, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603[FN.11] Robins found many of the principles enunciated in these cases persuasive in interpreting California’s free speech clause. (See Robins, supra, 23 Cal.3d at pp. 908-909, 153 Cal.Rptr. 854, 592 P.2d 341.) One such principle emphasized byRobins was the public’s unrestricted access to the privately owned property.[FN.12] (SeeRobins, at pp. 909-910, 153 Cal.Rptr. 854, 592 P.2d 341.)

Indeed, the reference in Robins to California cases relying on Marsh and Logan Valley suggests an implicit approval of the reasoning in these federal decisions. (SeePruneyard Shopping Center, supra, 57 Chi.-Kent L.Rev. at p. 384 [noting that Robins“resurrect[ed] the rationale of Logan Valley“].) Because both Marsh and Logan Valleypartially relied on the public’s unrestricted access in extending the reach of the First Amendment to certain Privately owned properties, they bolster the conclusion that private property [352] must be public in character before California’s free speech clause may apply. For example, Marsh held that a sidewalk in the business district of a privately owned town may be treated as publicly owned property for First Amendment purposes based, in part, on the public’s unrestricted access to the town’s business district. Marsh, supra, 326 U.S. at pp. 508-509, 66 S.Ct. 276.) “The 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.” (Id at p. 506, 66 S.Ct. 276.) Similarly, Logan Valley held that a shopping mall should be treated as publicly owned for First Amendment purposes because, among other things, the public had “unrestricted access to the mall property.” (Logan Valley, supra, 391 U.S. at pp. 318, 321, 325, 88 S.Ct. 1601.)

In light of the above, we conclude that the actions of a private property owner constitute state action for purposes of California’s free speech clause only if the property is freely and openly accessible to the public. By establishing this threshold requirement for establishing state action, we largely follow the Court of Appeal decisions construing Robins. For example, our Courts of Appeal have consistently held that privately owned medical centers and their parking lots are not functionally equivalent to a traditional public forum for purposes of California’s free speech clause because, among other things, they are not freely open to the public. (See, e.g.,Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1661, 39 Cal. Rptr.2d 189 (Blythe); Allred v. Harris (1993) 14 Cal.App.4th 1386, 1392-1393, 18 Cal.Rptr.2d 530; Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1672, 286 Cal.Rptr. 427; Allred v. Shawley (1991) 232 Cal.App.3d 1489, 1504-1505, 284 Cal.Rptr. 140.) Our lower courts have also suggested that an apartment complex does not resemble a traditional public forum because it “is a place where the public is generally excluded.” (Cox Cable San Diego, Inc. v. Bookspan (1987) 195 Cal.App.3d 22, 29, 240 Cal.Rptr. 407.)

Here, the Complex is privately owned, and Golden Gateway, the owner, restricts the public’s access to the Complex. In fact, Golden Gateway carefully limits access to residential tenants and their invitees. Thus, the Complex, unlike the shopping center in Robins, is not the functional equivalent of a traditional public forum. Accordingly, Golden Gateway’s actions do not constitute state action for purposes of California’s free speech, and the Tenants Association has no right to distribute its newsletter pursuant to article I, section 2, subdivision (a).[FN.13]

In reaching this conclusion, we note that judicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California’s free speech clause. Although the United States Supreme Court has held that judicial effectuation of a racially restrictive covenant constitutes state action (see Shelley v. Kraemer (1948) 334 U.S. 1, 20, 68 S.Ct. 836, 92 L.Ed. 1161), it has largely limited this holding to the facts of those cases (Cole, Federal and State “State Action”: The Undercritical Embrace of a Hypercriticized Doctrine (1990) 24 Ga. L.Rev. 327, 353). We therefore decline to extend it to this particular case, where the private property owner merely seeks judicial enforcement of a neutral lease provision.[FN.14] [353] Indeed, a contrary holding would effectively eviscerate the state action requirement because private property owners, for the most part, enforce their property rights through court actions. We also see no basis for conditioning a finding of state action on whether a party invokes California’s free speech clause as a sword or a shield. Therefore, we decline to follow the dictum in Blythe, supra, 32 Cal. App.4th at page 1665, 39 Cal.Rptr.2d 189 [“Free speech concerns may be raised as a shield against injunctive relief only because the effectuation of such relief entails government action”].

Martin v. City of Struthers (1943) 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 and Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 97 Cal.Rptr. 777, 489 P.2d 809 are also inapposite. Although Martin and Van Nuys found the prohibition of door-to-door leafletting to private residences unconstitutional, both cases involved municipal ordinances enacted by a governmental entity. (Martin, at p. 142, 63 S.Ct. 862; Van Nuys, at p. 819, 97 Cal.Rptr. 777, 489 P.2d 809.) Here, the owner of the Complex is a private entity, and its actions do not constitute state action. (See ante,111 Cal.Rptr.2d at p. 352, 29 P.3d at p. 810.)

Likewise, defendant’s reliance on Inganamort v. Merker (Ch.Div.1977) 148 N.J.Super. 506, 372 A.2d 1168 is misplaced. Inganamort only held that tenants had the right to distribute noncommercial written material in an apartment building pursuant to their leaseholds under New Jersey law. (Id. at p. 1170.) It did not consider any constitutional right to free speech. Moreover, the New Jersey Supreme Court has declined to impose a state action limitation on the free speech clause of New Jersey’s Constitution. (New Jersey Coalition Against War, supra, 650 A.2d at p. 771.) Therefore, New Jersey decisions are not relevant to our interpretation of the California Constitution.

Finally, Laguna Publishing, supra, 131 Cal.App.3d 816, 182 Cal.Rptr. 813, is distinguishable. In Laguna Publishing, the Court of Appeal found the discriminatory enforcement of a ban on distributing commercial newspapers in a private, gated community unconstitutional. (Id. at p. 844, 182 Cal.Rptr. 813.) In contrast, the instant case does not involve a discriminatory limitation on speech activities. Because this case does not raise the same issue raised in Laguna Publishing, we decline to address it here and leave its resolution for another day.

In closing, we emphasize that our decision today does not give apartment owners carte blanche to stifle tenant speech. Tenants may still have remedies under conventional property law principles. (See Lobsenz & Swanson, The Residential Tenant’s [354] Right to Freedom of Political Expression (1986) 10 U. Puget Sound L.Rev. 1, 45.) Moreover, many statutes and ordinances serve to protect tenants against unreasonable lease provisions and restrictions. (See, e.g., Civ.Code, §§ 1942.5, 1942.6, 1953.) Finally, tenants may always seek a legislative solution tailored to their particular concerns. Indeed, “[t]he common law and statutes are always sufficient if a state court has the desire and will to protect private rights from private infringement.” (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 409.) Our decision today merely seeks to avoid “rigid rectitude in stultifying, imposed uniformity” by dechning to constitutionalize a private dispute. (Private Restraint, supra, 69 B.U. L.Rev. at p. 969.)

Disposition

We affirm the judgment of the Court of Appeal.

BAXTER, J., and CHIN, J., concur.

Concurring Opinion by GEORGE, C.J.

I concur in the determination that article I, section 2, subdivision (a) of the California Constitution (section 2(a) or the free speech clause) does not afford defendant tenants association a right to distribute unsolicited pamphlets in the interior hallways of privately owned apartment buildings from which the general public is excluded.

As I shall explain, the particular category of free speech claim here at issue—the right to distribute unsolicited pamphlets on another’s property—is applicable only with respect to locations that, whether publicly or privately owned, are freely open to the general public. Because a recognition of the appropriate limit of this substantive right of free speech is sufficient in itself to resolve this case, I believe it is unnecessary to reach out to decide the much broader question of whether section 2(a)’s right of “[e]very person [to] freely speak, write and publish his or her sentiments on all subjects” affords individuals, as a general matter and in all circumstances, protection against only “state action” and not against the conduct or actions of private parties.

Neither the parties nor the lower courts focused upon the broad issue of whether the state constitutional free speech clause applies, as a general matter, only to state action, and there is no reason to undertake to resolve that question here. Even if the apartment complex at issue had been publicly owned (and thus the state action doctrine clearly satisfied), the state constitutional right of free speech would not extend to the unsolicited distribution of pamphlets in the interior hallways of an apartment building that is not generally open to the public. Accordingly, although I concur in the judgment, I do not join the lead opinion’s discussion or conclusions with regard to the state action doctrine.

I.

More than a half century ago, the New York Court of Appeals, in Watchtower Bible & Tract Soc, Inc. v. Metropolitan Life Ins. Co. (1948) 297 N.Y. 339, 79 N.E.2d 433 (Watchtower), unanimously declined to recognize either a state or federal constitutional right to solicit or distribute unsolicited pamphlets in the closed areas of a large private apartment complex. The court in Watchtower observed that “[a] narrow inner hallway on an upper floor of an apartment house is hardly an appropriate place at which to demand the free exercise of such rights (id., at p. 436), and that “no case we know of extends the reach of the Bill of Rights so far as to proscribe the reasonable regulation, by an owner, of conduct inside his multiple dwelling.” (Id., at [355] pp. 436-137, italics added.) Likewise, no decision of which I am aware, before or since Watchtower, has recognized a constitutional right to distribute unsolicited pamphlets in the closed interior hallways of privately owned apartment buildings or, for that matter, in any other analogous area that is closed to the general public.

The United States Supreme Court has found a First Amendment free speech right to picket or distribute literature on public streets and sidewalks, and in doing so it has emphasized the open nature of those locations as a basis for its conclusion. (E.g.,Thornhill v. Alabama (1940) 310 U.S. 88, 105-106, 60 S.Ct. 736, 84 L.Ed. 1093 (Thornhill); see also Hague v. C.I.O. (1939) 307 U.S. 496, 515-516, 59 S.Ct. 954, 83 L.Ed. 1423 [public streets and parks have been traditional grounds for exercise of free expression]; Lovell v. Griffin (1938) 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949[finding First Amendment right to distribute religious pamphlets on public sidewalks].) In Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (Marsh), the high court extended this rule to the business district of a private “company town.” The court in Marsh found a free speech right to distribute religious literature, and emphasized that the private town’s business district was “freely accessible and open” to the public. (Id., at p. 508, 66 S.Ct. 276.)[FN.1]

In Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union(1964) 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921 (Schwartz-Torrance), this court, citing Thornhill and Marsh found a right to peacefully picket at a privately owned shopping center. In so concluding, we emphasized the public nature of the shopping center (Schwartz-Torrance, supra, at pp. 772-773, 40 Cal.Rptr. 233, 394 P.2d 921, and cases cited) and distinguished N.L.R.B. v. Babcock & Wilcox Co.(1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, in which the high court upheld an employer’s right to prohibit picketing in a company parking lot. We explained: “Unlike the . . . property in the present case, the Babcock & Wilcox parking lot was not generally open to the public.” (Schwartz-Torrance, supra, 61 Cal.2d at p. 774, 40 Cal.Rptr. 233, 394 P.2d 921.)

Subsequently, in In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353,we found a right to peacefully and unobtrusively distribute leaflets protesting the Vietnam War, in the privately owned Union Station of Los Angeles. In reaching our conclusion we emphasized that the railway station was a “spacious area open to the community as a center for rail transportation” (id., at p. 847, 64 Cal.Rptr. 97, 434 P.2d 353) and that in this respect it was analogous to a “public street or park” (id., at p. 851, 64 Cal.Rptr. 97, 434 P.2d 353).

Consistently with Schwartz-Torrance, in Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (Logan Plaza), the high court found a free speech right to peacefully picket and distribute handbills in a privately owned shopping mall, and in so concluding emphasized the public’s “virtually unrestricted access” to the mall property. (Id., at p. 321, 88 S.Ct. 1601; see also id., at pp. 313, [356] 325, 88 S.Ct. 1601.) The court in Logan Valley observed that in circumstances in which “property is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether.” (Id., at p. 320, 88 S.Ct. 1601, italics added.)[FN.2]

In In re Lane (1969) 71 Cal.2d 872, 79 Cal.Rptr. 729, 457 P.2d 561, we found a right to peacefully distribute labor union handbills on a private sidewalk abutting a large “stand alone” supermarket. In so concluding we cited and followed the above cases and emphasized that the private sidewalk was “open to the public” and that “[t]he public is openly invited to use it.” (Id., at p. 878, 79 Cal.Rptr. 729, 457 P.2d 561.)

Robins v. Pruneyard (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), affirmed sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, followed this same approach, finding a right under section 2(a) to seek petition signatures and to speak with patrons on a matter of public interest in a privately owned shopping center. Our decision in Robinsemphasized that the center was freely open to the public (Robins, supra, 23 Cal.3d at pp. 902, 909-911, 153 Cal.Rptr. 854, 592 P.2d 341), and indeed we implicitly exempted “`an individual homeowner'” from our holding (id, at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341), presumably, as the lead opinion notes, “because individual homes are not freely and openly accessible to the public.” (Lead opn., ante, 111 Cal.Rptr.2d at p. 351, 29 P.3d at p. 809.)

California decisions filed since Robins, finding a state constitutional free speech right to distribute pamphlets or to picket, have continued to emphasize the open nature of the location where the rights were to be exercised. (E.g., Sears, Roebuck & Co. v. San Diego District Council of Carpenters (1979) 25 Cal.3d 317, 328, 332, 158 Cal.Rptr. 370, 599 P.2d 676 [upholding union’s free speech right to picket on employer’s privately owned sidewalks surrounding its store; court emphasized that the sidewalk was open to the general public and was a “traditional and accepted place where unions may, by peaceful picketing, present to the public their views respecting a labor dispute with that store”]; Prisoners Union v. Department of Corrections (1982) 135 Cal.App.3d 930, 932, 185 Cal. Rptr. 634 [recognizing the right to distribute pamphlets in a prison parking lot “open to members of the general public”]; Westside Sane/Freeze v. Hahn (1990) 224 Cal.App.3d 546, 552-556, 274 Cal.Rptr. 51 [upholding political group’s free speech right to distribute leaflets at a privately owned shopping center; court asserted that the shopping center, to which the public was invited, was a public forum for exercising free speech rights]; see also Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 363, 364, 93 Cal.Rptr.2d 1, 993 P.2d 334 [ordinance that regulated and banned solicitation of funds in “public places,” including sidewalks, bus stops, and restaurants, “plainly implicate[d]” section 2(a)’s free speech right].)

Sister state decisions that have found a state constitutional free speech right to distribute pamphlets in private shopping centers likewise have stressed the open and public nature of the forum. (See Bock v. Westminster Mall Co. (Colo.1991) 819 P.2d 55, 61-63; New Jersey Coalition Against War v. J.M.B. Realty Corp. (1994) 138 N.J. 326, 650 A.2d 757, 771-774.) Similarly, state court decisions that have recognized other state constitutional rights [357] (distinct from a free speech right) to solicit signatures at private shopping centers also have emphasized the open and public nature of the forum. (See Batchelder v. Allied Stores Intern., Inc. (1983) 388 Mass. 83, 445 N.E.2d 590, 595 (Batchelder) [finding right to solicit signatures under state constitution’s “freedom and equality of elections” provision];[FN.3] Alderwood Associates v. Washington Environmental Council (1981) 96 Wash.2d 230, 635 P.2d 108, 116-117 (Alderwood) [finding right to solicit signatures under state constitution’s initiative provision].)[FN.4]

As these decisions suggest, the acts of distributing unsolicited pamphlets, picketing, and soliciting signatures or funds traditionally are performed in places open to the general public—that is, in places sometimes referred to as public forums.[FN.5] In light of this tradition, when one speaks of a “constitutional right” to engage in such conduct, one cannot reasonably have in mind an asserted right to invade the interior hallways of a private business structure, home, or apartment complex, in order to proffer an unsolicited flier, placard or petition. Under the foregoing decisions, there is no state or federal constitutional right to distribute unsolicited pamphlets in a location (whether publicly or privately owned) not open to the general public, such as the closed interior hallways of the apartment buildings here at issue. (Watchtower, supra, 297 N.Y. 339, 79 N.E.2d 433, 436-37, quoted ante, 111 Cal.Rptr.2d at p. 354, 29 P.3d at p. 812;Hall v. Virginia (1948) 188 Va. 72, 49 S.E.2d 369, 375-378 [there is no constitutional right to distribute unsolicited pamphlets [358] in the interior hallways of an apartment complex]; Annot., Right of Owner of Housing Development or Apartment Houses to Restrict Canvassing, Peddling, Solicitation of Contributions, etc. (1949) 3 A.L.R.2d 1431, 1432-1433[“[R]egulations of . . . apartment house owners, which have the effect of restricting . . . solicitation, etc., will not be held . . . unconstitutional as violating constitutional guaranties of others to freedom of religion, speech, or press, where the activities are curtailed in places . . . not public or quasi-public in nature, and where the rights of persons to privacy in their dwelling places are protected from infringement by such regulations”]; see also Batchelder, supra, 388 Mass. 83, 445 N.E.2d 590, 595, quoted ante, at fn. 3.)

In the case now before us, the landlord has limited hallway access to residential tenants and their invitees, and has excluded the general public. Accordingly, this case is quite different from Robins, supra, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, and the other free speech cases discussed above. A free speech right to distribute unsolicited pamphlets in places open to the general public simply is not triggered on the facts presented.

It is thus apparent that the state action doctrine is irrelevant to this case. Had the apartment complex been owned by the state and had the apartment been operated in the same manner as here—that is, by restricting access to interior hallways to tenants and their invitees—the tenants still would have no section 2(a) free speech right to distribute unsolicited pamphlets in the buildings’ interior hallways, because, as noted above, the constitutional right conferred by section 2(a) to distribute unsolicited pamphlets is inapplicable to the interior hallways of apartment buildings that are closed to the general public.

II.

It is important to emphasize what we do not consider or decide in this case. We do not face any effort by a landlord to ban all discourse by tenants in the closed hallways. Tenants remain free to speak with each other in the hallways or elsewhere about anything they wish. Tenants may knock on the doors of other tenants and speak with them. They may telephone or fax each other, or correspond by letter or e-mail. Pursuant to the landlord’s rules, they may post fliers on the bulletin boards of the laundry rooms, and they may even, upon request, deliver, and leave at the door of another tenant, the very same pamphlets whose intended distribution triggered this case. As relevant here, the landlord’s rule simply prohibits the tenants association from leaving unsolicited pamphlets on or under the hallway doors of fellow tenants, or in a pile for the taking in the hallway.

Furthermore, although I conclude for the reasons discussed above that the tenants association possesses no constitutional right to leave the unsolicited pamphlets here at issue in the hallways or on or under the hallway doors of fellow tenants, it does not necessarily follow that tenants have no right of any sort to do so. Tenants in fact may have such rights, depending upon the terms of the applicable lease or a statute, or based upon general principles of landlord-tenant law. (See, e.g., Civ.Code, §§ 1942.5, 1942.6, 1953; Lobsenz & Swanson, The Residential Tenant’s Right to Freedom of Political Expression (1986) 10 U. Puget Sound L.Rev. 1, 39-41, 45-49.) Because the only issue upon which we granted review is whether the state constitutional right of free speech extends to the distribution of pamphlets in the interior hallways of an apartment building that is not open to the public, we have no occasion to decide whether tenants [359] or a tenants association may derive such a right from some other source.

III.

There is much to be said for taking an incrementalist approach to appellate decisionmaking, and such jurisprudential considerations apply especially when, as here, we face the significant task of defining the contours of an aspect of the state constitutional right of free speech that we have not addressed for more than two decades. The analysis set forth above affords a fully adequate basis upon which to resolve this matter, and I believe the court can, and should, leave to another day and another case the difficult task of further defining and clarifying the scope of section 2(a)’s free speech right. I note that one such case, Waremart, Inc. v. Progressive Campaigns (2000) 85 Cal.App.4th 679, 102 Cal.Rptr.2d 392, review granted March 14, 2001, S094236, already is pending before our court.

Instead of resolving this case narrowly on the basis of the issue discussed above, the lead opinion proposes to hold that state action or its equivalent must be established in order to raise any claim under section 2(a) (lead opn., ante, 111 Cal. Rptr.2d at p. 350, 29 P.3d at p. 809), and further suggests that “private property must be public in character before California’s free speech clause may apply.” (Id., at pp. 351-352, 29 P.3d at pp. 809-810, italics added.) But even if one were to accept the lead opinion’s assertion that a finding of state action or its equivalent is required with regard to the specific subcategory of free speech here at issue—the right to distribute unsolicited pamphlets— such a determination would not, in my view, necessarily control other types of free speech claims that might be asserted under section 2(a). By proposing to reach the state action issue, and by speaking broadly and asserting that as a general matter, section 2(a) can afford no type of free speech right with regard to a forum that is both privately owned and closed to the general public, the lead opinion says more than it needs to, and more than is supported by our prior decisions.

When, in a future case, this court does address and decide whether, and in what circumstances, section 2(a) should be construed as requiring a showing of state action, it will be helpful to consider the diverse circumstances in which the free speech clause might be implicated. I have in mind circumstances in which a private person or entity may attempt to utilize its power or authority in one sphere to censor or undermine what might be viewed as another individual’s “core” free speech rights. Consider a private landlord who, under penalty of eviction, precludes his or her tenants from displaying in the windows of their apartments the campaign poster of a particular political candidate supported by the tenant.—or requires the tenants to display in the windows of their homes a poster of the candidate supported by the landlord. Or consider a union or employer that attempts to utilize its power over an individual by precluding certain bumper stickers on vehicles parked in the employer’s or union’s parking lot, or by requiring that the employee place a certain bumper sticker on his or her vehicle or attend a rally and make a political contribution, unconnected to employment-related issues, in support of a candidate favored by the union or employer but not supported by the employee.

If we were to hold, as the lead opinion broadly would, that all types of section 2(a) free speech claims require state action (or its equivalent, shown by establishing that the location where the speech is exercised is the “functional equivalent of a traditional public forum”) (lead opn., ante, [360] 111 Cal.Rptr.2d at p. 352, 29 P.3d at p. 810), we effectively would remove any state constitutional obstacle to any such action by a landlord, union, or employer. I see no reason to prejudge the resolution of such questions.

Given the variety of circumstances in which free speech concerns may come into play, and the difficulty of predicting how the presence or absence of a “state action” requirement might affect the practical protection conferred by the free speech right embodied in the California Constitution’s free speech clause, I believe we should proceed cautiously and limit our decision to the context presented by the facts before us.

IV.

I join in the judgment of the court, because I believe that section 2(a) of the California Constitution has no application in the context presented here. I would decide no more.

Dissenting Opinion by WERDEGAR, J.

A majority of this court, while divided in their reasons for so doing, today join in immunizing from state constitutional scrutiny a commercial residential landlord’s suppression of speech among its tenants. Guided by our precedents and the clear language of our state Constitution, I respectfully dissent.

Background

Plaintiff Golden Gateway Center (Golden Gateway) is landlord of a multi-building commercial and residential apartment complex containing 1,254 residential units; defendant Golden Gateway Tenants Association (Tenants Association), formed in 1982, is a group of residential tenants in the complex. Golden Gateway incorporates by reference in each of its residential lease agreements certain “Building Standards.” Among these, at relevant times through June 1996, was a provision entitled “Soliciting,” which read, in its entirety: “Any soliciting within the building is absolutely forbidden. Should a solicitor appear, please notify the Owner so that appropriate action may be taken.”

From the time of its formation in 1982 until 1993, the Tenants Association periodically distributed a newsletter on or under the apartment doors of Golden Gateway’s residents. For these approximately 11 years, Golden Gateway did not object to the Tenants Association’s leafleting. Golden Gateway, for its part, also distributed papers under residents’ doors (and posted them in common areas, such as the elevators), when such modes of communication served its management’s needs and interests.

In 1993, citing the Building Standards, Golden Gateway asked the Tenants Association to stop distributing newsletters at tenants’ doors. The Tenants Association refused, inter alia, on constitutional free speech grounds, and continued to distribute its newsletters.

In 1996, shortly after the Tenants Association filed a lawsuit against Golden Gateway opposing “hotelization” of the complex and distributed some leaflets critical of Golden Gateway’s management, Golden Gateway demanded that the Tenants Association cease “dissemination of politically based material.” When the Tenants Association refused, Golden Gateway revised its Building Standards expressly to forbid all “leafleting,” stating that any such within the building “is absolutely forbidden” other than “on the bulletin boards located in the laundry rooms” or at the specific request of a tenant. The Tenants Association continued its distribution practices, and Golden Gateway ultimately sought the injunction that is the subject of this litigation. [361] The Tenants Association cross-complained, seeking a declaration that it could continue leafleting at tenants’ doors.

The trial court preliminarily enjoined the Tenants Association from leafleting. After trial, however, the court dissolved the injunction, ruling that the Tenants Association had a contractual right to distribute its newsletter at tenants’ doors and on laundry room bulletin boards. The Court of Appeal reversed, and we granted review on petition of the Tenants Association.

Discussion

Our state Constitution provides that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” (Cal. Const., art. I, § 2, subd. (a); hereafter section 2(a) or the state free speech clause.)[FN.1] This unambiguous language should afford California apartment complex dwellers the freedom, subject to reasonable regulation, to communicate in writing with each other on their residential premises, including, as relevant in this case, at each others’ front doors, about matters in their common interest as tenants.

At the outset, it is important to emphasize the narrowness of the question we are called upon to decide. No question is raised as to whether the Tenants Association or its members have waived their leafleting or other communicative rights. Nor do we have before us a landlord’s attempt to curb purely commercial or nontenant activity. Finally, Golden Gateway’s property rights are not those “`of an individual homeowner or the proprietor of a modest retail establishment'” (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), affd.sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741). We need not decide today, therefore, what result an appropriate constitutional analysis would generate in such cases. The sole question we face is whether the residents of a large multibuilding apartment community have the right, as against the landlord’s wishes, to communicate with each other through the distribution at their front doors of leaflets, subject to reasonable time, place, and manner regulations and the right of any resident who so wishes to opt out of receiving such communications. I would hold that they do.

I.

In providing that all Californians “may freely speak, write and publish” their sentiments, the framers of the state free speech clause drew no distinction, among those who might seek to obstruct such activities, between state and private actors. They specified instead, in plain language, a right of free speech that runs against both—and protects against interference by either. Thus, as we observed only last year, section 2(a)’s “right to freedom of speech, unlike the First Amendment’s, is unbounded in range. It runs against the world, including private parties as well as governmental actors.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 492, 101 Cal.Rptr.2d 470, 12 P.3d 720 (Gerawan), citing Robins, supra, 23 Cal.3d at pp. 908-911, 153 Cal.Rptr. 854, 592 P.2d 341; Fritz, More Than “Shreds and Patches”: California’s First Bill of Rights (1989) 17 Hastings Const. L.Q. 13, 31; Friesen,Should California’s Constitutional [362] Guarantees of Individual Rights Apply Against Private Actors? (1989) 17 Hastings Const. L.Q. 111, 118, 119-122 (Private Actors).)

Section 2(a) also, as the lead opinion emphasizes, provides that “[a] law may not restrain or abridge liberty of speech or press,” thus explicitly prohibiting state legislative, and implicitly prohibiting state executive and judicial, suppression of protected speech. But the latter proviso neither grammatically nor legally qualifies the simple and sweeping free speech guarantee with which section 2(a) begins. Nor, contrary to the lead opinion, does that proviso indicate an intent that the clause as a whole protect against only state actions (lead opn., ante, 111 Cal.Rptr.2d at p. 344, 29 P.3d at p. 804). Rather, as the lead opinion concedes and as commentators have observed, that the “express prohibition against a `law’ restraining or abridging free speech” (ibid.) resides in (and on its face purports to govern) the second sentence, alone, “arguably bolsters such an interpretation” (ibid.) of the clause as a whole as would infer “an intent to protect the right to free speech against private intrusions” (id.at p. 344, 29 P.3d at p. 804, citing Private Actors, supra, 17 Hastings Const. L.Q. at pp. 119-121).

In consequence of section 2(a)’s plain language, we consistently have rejected any suggestion that California’s free speech clause carries a state action limitation. We first held more than 20 years ago that it carries no such limitation. (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.)

In Robins, we stated “that sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341, italics added.) Although our rejection in Robins of a state action requirement was only implicit, the lead opinion is mistaken in asserting we there did not address whether California’s free speech clause protects against only state action or against private conduct as well. (Lead opn., ante, 111 Cal.Rptr.2d at p. 341, 29 P.3d at p. 801.) We had no choice but to address that issue, as the conduct complained of in Robins—a commercial landlord’s policy “not to permit any tenant or visitor to engage in publicly expressive activity” (Robins, supra, 23 Cal.3d at p. 902, 153 Cal.Rptr. 854, 592 P.2d 341)—was “that [of] a private individual” (Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal. App.3d 816, 838, 182 Cal.Rptr. 813). We properly treat courts’ implicit holdings as equivalent, legally and logically, to their explicit ones (see, e.g., Chapman v. Pitcher (1929) 207 Cal. 63, 68, 276 P. 1008; People v. McCoy (2001) 25 Cal.4th 1111, 1121, 108 Cal.Rptr.2d 188, 24 P.3d 1210), and no reason appears why we should treat Robins differently.

Some commentators apparently, at least for a time, found Robins‘s applicability outside its context of a large shopping center uncertain because we there discussed “the role of the centers in our society” and emphasized the case did not implicate “`the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment'” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341). But any questions left open by Robins on the state action question were laid to rest in Gerawan, where we stated unambiguously that the right of free speech granted by the state free speech clause “runs against the world, including private parties as well as governmental actors” (Gerawan, supra, 24 Cal.4th at p. 492, 101 Cal.Rptr.2d 470, 12 P.3d 720). Indeed, we cited Robins (23 [363] Cal.3d at pp. 908-911, 153 Cal.Rptr. 854, 592 P.2d 341) for that very proposition.

The lead opinion dismisses Gerawan‘s discussion of state action as “nonbinding dictum.” (Lead opn., ante, 111 Cal.Rptr.2d at p. 348, 29 P.3d at p. 807.) Nevertheless, for many of the same reasons, presumably, as led the author of the lead opinion only eight months ago to sign the majority opinion in Gerawan, I disagree that Gerawan‘s dictum is unpersuasive. Gerawan based its rejection of a state action requirement on section 2(a)’s plain language (Gerawan, supra, 24 Cal.4th at pp. 489-92, 101 Cal.Rptr.2d 470, 12 P.3d 720), buttressed by “the peculiar character of constitutions [like California’s] dating to the 19th century, which are not so narrow” as to restrain only governmental actors (id. at p. 492, 101 Cal. Rptr.2d 470, 12 P.3d 720). The Gerawan majority cited textual proof that the California Constitution must be counted among those that were drafted to protect against private, as well as governmental, intrusion on constitutional rights. (See Gerawan, supra, 24 Cal.4th at p. 493, 101 Cal.Rptr.2d 470, 12 P.3d 720 [citing constitutional grant to wives of a separate property right as against their husbands and to husbands and wives a similar right as against one another].) I continue to find Gerawan’s analysis persuasive—its plain-language rationale for the reasons earlier stated, and its constitutional-character rationale on the basis of the scholarly authorities and textual examples that Geraivan provided.[FN.2]

Gerawan‘s progenitor, Robins, as the lead opinion recognizes, “has been the law in California for over 20 years” and is “embedded in our free speech jurisprudence with no apparent ill effects” (lead opn., ante, 111 Cal.Rptr.2d at p. 343, 29 P.3d at p. 803). Principles of stare decisis, therefore, oblige us to follow its holding. As explained above, that holding logically implies that section 2(a) carries no state action limitation.

Concededly, the result in Robins might be reconcilable with a rule—similar, perhaps, to that the lead opinion proffers— that would make free and open accessibility to the public a “threshold requirement” for applying the state free speech clause to the actions of a private property owner. (Lead opn., ante, 111 Cal.Rptr.2d at p. 352, 29 P.3d at p. 810.) But our analysis in Robins would not be so reconcilable.

Thus, when we referred in Robins to Court of Appeal cases citing the United States Supreme Court’s decisions in Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 and Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, we did so not with implicit approval of any state action reasoning in those underlying federal decisions (see lead opn., ante, 111 Cal. Rptr.2d at p. 351, 29 P.3d at p. 809); rather, we believed the Court of Appeal opinions to be useful in illustrating “the strength of `liberty of speech’ in this state.” (Robins, supra,23 Cal.3d at p. 908, 153 Cal.Rptr. 854, 592 P.2d 341.) Irrespective of federal principles, we noted, “[t]he duty of this court is to help determine what `liberty of speech’ means in [364] California.” (Id at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341, italics added.)

Ultimately, we explained our holding in Robins as “providing greater protection than the First Amendment now seems to provide” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341), affirming the long-standing principle that a “`protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee'” (id. at p. 908, 153 Cal.Rptr. 854, 592 P.2d 341).

Our decision in Robins rested expressly on our understanding “that sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised,” even on private property (Robins, supra, 23 Cal.3d at p. 910, 153 Cal. Rptr. 854, 592 P.2d 341) and not on any “functional equivalence of the shopping center to a traditional public forum” (lead opn., ante, 111 Cal.Rptr.2d at p. 351, 29 P.3d at p. 809). In Robins, far from finding this functional equivalence, we found, much more modestly, that “`[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 [citation] would not markedly dilute defendant’s property rights.'” (Robins, supra, 23 Cal.3d at p. 911, 153 Cal.Rptr. 854, 592 P.2d 341.) In considering the competing constitutional rights at stake, we nowhere referred, categorically, to “the public character of the property” (lead opn., ante, at p. 351, 29 P.3d at p. 809).[FN.3] Rather, we considered the interest in “speech and petitioning, reasonably exercised,” and “the role of [shopping] centers in our society” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341) in facilitating the exercise of such rights as against the “`defendant’s property rights'” (id. at p. 911,153 Cal.Rptr. 854, 592 P.2d 341), emphasizing that our result, in favoring free speech, might be different if “`we . . . ha[d] under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment'” (id. at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341). We also expressly preserved property owners’ right, despite constitutional constraints, to impose “`reasonable regulations'” (id. at p. 911, 153 Cal. Rptr. 854, 592 P.2d 341), avoiding any implication “that those who wish to disseminate ideas have free rein” (id at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341).

In Robins we thus followed “the familiar and well-established constitutional analysis—applicable to other constitutional rights, such as freedom of speech . . . ____ under which a court considers the extent to which a defendant’s actions infringe or intrude upon the plaintiffs constitutionally protected interest and `balances’ or `weighs’ such infringement against the relative importance or `compelling’ nature of the defendant’s justifications for its actions (taking into account whether there are other, less intrusive means by which the defendant could achieve its objectives).” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 62, 26 Cal.Rptr.2d 834, 865 P.2d 633 (cone. & dis. opn. of George, J.).)[FN.4]

We should adhere to our established constitutional jurisprudence in this case. Consequently, unless we conclude Golden [365] Gateway’s leafleting ban is a reasonable regulation of the speech at issue, we must balance the private and societal interest in that speech against any competing constitutional concerns that would be implicated were we to rule that section 2(a) forbids enforcement of that ban. (See, e.g., Robins, supra, 23 Cal.3d at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341[balancing signature gatherers'”wish to disseminate ideas” with concern “`that these activities do not interfere with normal business operations'” and “`property or privacy rights'” of occupants and owners].) We must also take into account the ban’s impact on the right of Californians, generally, to receive unsolicited communications. (See generally Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 825-826, 97 Cal.Rptr. 777, 489 P.2d 809 (Van Nuys); see also Martin v. City of Struthers(1943) 319 U.S. 141, 148-149, 63 S.Ct. 862, 87 L.Ed. 1313.)[FN.5]

A. Is the ban a reasonable regulation of affected speech?

Golden Gateway unquestionably retains the right to impose reasonable time, place, and manner restrictions on expressive activity at its premises. (Robins, supra, 23 Cal.3d at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341; In re Hoffman (1967) 67 Cal.2d 845, 852-853, 64 Cal.Rptr. 97, 434 P.2d 353.) Such restrictions must, however, be “`”justified without reference to the content of the regulated speech, . . . narrowly tailored . . ., and . . . leave open ample alternative channels for communication of the information.”‘” (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1573, 273 Cal.Rptr. 302, quoting Clark v. Community for Creative Nonviolence (1984) 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221.)

1. Does the ban afford ample alternative channels for communication?

Even assuming Golden Gateway’s leafleting ban can be considered content neutral,[FN.6] the record demonstrates that it fails to leave open ample alternative channels of communication, in that its only allowance for distribution of unsolicited printed matter is posting on laundry room bulletin boards.

[366] Neither that the Tenants Association can use the public mails nor that it can distribute its leaflets off Golden Gateway’s premises provides a constitutional alternative to door-to-door leafleting. Mailing a single leaflet to each address, the record suggests, would cost the Tenants Association more than $500, even assuming it could muster the volunteers to assemble, stuff, and address 1,254 envelopes. (See generally City of Watseka v. Illinois Public Action Council (7th Cir.1986) 796 F.2d 1547, 1558 [mail and telephone not sufficient because “more expensive and less effective than in-person solicitation at the citizen’s residence”].) Nor would standing on the sidewalk near the complex afford Tenant Association speakers a reasonable opportunity to “directly communicate their message to their targeted audience” (Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1674, 286 Cal.Rptr. 427), some of whom (e.g., automobile drivers) may not use those sidewalks at all and all of whom, presumably, use them at most intermittently. As the United States Supreme Court has noted, “the most effective way of bringing [informational materials] to the notice of individuals is their distribution at the homes of people.” (Schneider v. New Jersey (1939) 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155; accord, Van Nuys, supra, 5 Cal.3d at pp. 823-825, 97 Cal.Rptr. 777, 489 P.2d 809.)

Although oral communication among tenants may be permitted, as the concurring opinion suggests (cone, opn., ante, 111 Cal.Rptr.2d at p. 358, 29 P.3d at p. 815),[FN.7]the Building Standards forbid all unrequested published discourse by tenants except in the laundry rooms. As the state free speech clause protects the freedom of Californians to “write and publish” equally and identically with their right to “speak” their sentiments on all subjects, the Building Standards banning written and published discourse offend the clause equally and identically as would a rule that entirely forbade tenants to speak with each other on the premises except in the laundry rooms.

  1. Is the ban narrowly tailored to accomplish its legitimate objectives?

The record also establishes that Golden Gateway’s ban on solicitations and leafleting goes much further than is necessary to address its asserted legitimate concerns for tenant safety, tenant privacy, or cleanliness of the premises. As Golden Gateway conceded at trial, no breaches of security have occurred as a result of leaflet distribution. With respect to litter concerns, Golden Gateway acknowledged the Tenants Association already has agreed to retrieve from around tenants’ doors, within 24 hours of distribution, any of its newsletters or leaflets that have not been collected by their intended recipients.

Nor would enforcing Golden Gateway’s ban necessarily significantly enhance tenant privacy. While one of Golden Gateway’s property managers opined at trial that unsolicited leafleting constituted an invasion of tenant privacy, he conceded that the only available alternative under Golden Gateway’s ban, unrequested mail or telephone calls, would equally be so. And Golden Gateway conceded at trial that the Tenants Association already has agreed not to distribute leaflets or newsletters to any tenant who indicates a desire not to receive them. Were Golden Gateway’s [367] regulations more narrowly tailored in that direction, a tenant who prefers not to receive leaflets could simply post a “no leafleting” sign or appropriately advise the Tenants Association.

Golden Gateway’s ban thus operates far more broadly than is necessary to effect its legitimate purposes. It may not, therefore, be enforced as merely a reasonable regulation of the time, place, or manner of the speech it would affect. (Savage v. Trammell Crow Co., supra, 223 Cal. App.3d at p. 1573, 273 Cal.Rptr. 302.)

B. Balancing of affected constitutional interests

Since Golden Gateway’s ban is not a reasonable regulation, we must, in order to resolve this matter, balance the competing constitutional interests implicated in its efforts to prohibit the Tenants Association’s leafleting. (See Robins, supra, 23 Cal.3d at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341.) Such interests include, on the one hand, the Tenants Association’s interest in freely speaking, writing and publishing to tenants at Golden Gateway Center and those tenants’ interest in receiving the Tenants Association’s written communications. They include, on the other hand, the privacy interests of individual tenants and Golden Gateway’s property interests.

  1. Free speech

The Tenants Association understandably desires to communicate regularly with the tenants of Golden Gateway about Tenants Association business and tenants’ issues, generally. As previously noted, moreover, Golden Gateway tenants have a recognized interest in receiving even unsolicited communications. (See generally Martin v. City of Struthers, supra, 319 U.S. at pp. 147-148, 63 S.Ct. 862; Van Nuys, supra, 5 Cal.3d at pp. 825-826, 97 Cal.Rptr. 777, 489 P.2d 809.) We should be mindful of the “paramount and preferred place” that free speech enjoys in the hierarchy of rights in this state (In re Lane (1969) 71 Cal.2d 872, 878, 79 Cal.Rptr. 729, 457 P.2d 561) and also should strive to avoid any balancing of constitutional interests that would relegate California apartment dwellers, as a group, to inferior status among speakers.

  1. Property rights

Plaintiff, as landlord, complains its property rights will be diminished if its leafleting ban is not enforced. Such concerns, legitimate in the abstract, would seem overblown in this case to the extent that the tenants of Golden Gateway already have undisputed rights to be present in the hallways and throughout the common areas of their complex. Pursuant to their lease agreements, the tenants have the contractual right to be present in the hallways and throughout the common areas of the Golden Gateway Center. They also possess property rights entitling them to occupy and utilize the premises. Leaseholds possessed by tenants are as much estates in property as is a landlord’s remaining ownership interest. Therefore, to construe section 2(a) to require of Golden Gateway a more appropriately tailored approach to regulation of tenant leafleting, as a matter of both law and fact, “`would not markedly dilute [the landlord]’s property rights'” (Robins, supra, 23 Cal.3d at p. 911, 153 Cal.Rptr. 854, 592 P.2d 341).

  1. Tenant privacy

Golden Gateway makes much of the insulation from unsolicited appeals (and the high rents assertedly paid for such insulation) that the Building Standards purportedly are designed to preserve. As demonstrated, however, Golden Gateway’s policies go far beyond reasonable regulation directed to such insulation. Even assuming [368] that privacy concerns loom as large, practically speaking, as plaintiff would have us believe,[FN.8] we should remain mindful that “a community may not suppress . . . the dissemination of views because they are unpopular, annoying or distasteful.” (Murdoch v. Pennsylvania (1943) 319 U.S. 105, 116, 63 S.Ct. 870, 87 L.Ed. 1292.)

Enforcement of Golden Gateway’s leafleting ban, which forbids the provision to any tenant of any leaflet not specially requested in advance, significantly would impact “the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributers from the home.” (Martin v. City of Struthers, supra, 319 U.S. at pp. 148-149, 63 S.Ct. 862.) The net effect of enforcing Golden Gateway’s total ban will be to deprive the residents of this sizable community of a traditional and important means of communicating with each other.

Ultimately, the appropriate “balance is tipped in favor of the right to voice ideas as opposed to the property rights or mere naked title of the owners” (Allred v. Shawley(1991) 232 Cal.App.3d 1489, 1496, 284 Cal.Rptr. 140) of Golden Gateway Center.[FN.9]And in my view, “proper accommodation of the competing [free speech] and privacy values at issue requires that the initial burden be placed on the homeowner to express his objection to the distribution of material.” (Van Nuys, supra, 5 Cal.3d at p. 826, 97 Cal.Rptr. 777, 489 P.2d 809.)[FN.10]

II.

The lead opinion never engages in a traditional analysis along the lines of the foregoing, arguing rather that Golden Gateway’s restrictions on tenant speech do not implicate the state free speech clause in the first place. It takes as its fundamental premise that the state free speech clause protects only against state action, defining “the scope of this limitation” (lead opn., ante, 111 Cal.Rptr.2d at p. 350, 29 P.3d at p. 809) as encompassing “the actions of a private property owner . . . only if the property is freely and openly accessible to the public” (id. at p. 352, 29 P.3d at p. 810).[FN.11]

[369] For support, the lead opinion cites Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592, apparently for the proposition that state constitutional provisions carry a state action limitation “absent some `suggestion’ in the provision’s history” to the contrary. (Lead opn., ante, 111 Cal.Rptr.2d at p. 344, 29 P.3d at p. 804.) But this court neither expressly nor impliedly addressed in Gay Law Students the question whether some kind of presumption of that nature might exist. Further, in Gay Law Students we spoke only to “the equal protection clause of the California Constitution” (24 Cal.3d at p. 466, 156 Cal.Rptr. 14, 595 P.2d 592) and its “predecessor provision” (id. at p. 468, 156 Cal. Rptr. 14, 595 P.2d 592). Similarly, in Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333, 70 Cal.Rptr.2d 844, 949 P.2d 941, the other case cited by the lead opinion on this point, we spoke to the state search and seizure provision. As the lead opinion’s own authority notes, the question of “whether to apply constitutional restraints on private actors” is properly approached “only by reference to the text, history and purpose of individual clauses of the California Declaration of Rights. It must be answered separately for each clause, not generally for the entire constitution.” (Private Actors, supra, 17 Hastings Const. L.Q. at pp. 111-112.)

Next, while acknowledging the absence from section 2(a) of an explicit state action limitation, the lead opinion asserts the state free speech clause nevertheless is ambiguous as to the implicit presence or absence of such a limitation. (Lead opn.,ante, 111 Cal.Rptr.2d at p. 344, 29 P.3d at p. 804.) The lead opinion finds such ambiguity in the second sentence of the clause, asserting that its reference to “law” abridging the liberty of speech or press might mean the framers feared only government intrusion, thus indicating an intent to protect only against state actions. (Id. at p. 344, 29 P.3d at p. 804.) Such an inference is neither logically nor grammatically supportable.

First, although a type of state action requirement might be discerned in the clause’s second sentence if it stood alone or purported to qualify the first sentence, as noted it does neither. The second sentence is preceded by and makes no reference to the first sentence; the first sentence, in turn, grants the free speech right without any limitation except that of responsibility for abuse of the right. The presence of the second sentence, with its express reference to state action in the form of “law,” in fact bolsters the case for construing the first sentence in accord with its plain language, i.e., in accord with its lack of any such reference, and for construing the entire clause in accord with its plain language, i.e., in accord with the lack of any qualification on the scope of the free speech right it confers.

Second, scholars have recognized that the phrase “being responsible for the abuse of this right” in the first sentence of section 2(a) offers contextual evidence the framers’ were aware the state free speech clause would limit private conduct. The reasoning is that the phrase likely was intended to preserve common law defamation actions for abusive speech, with the corollary that non abusive speech “should not be suppressed by a private suit for injunctive or damage relief. This, then, is evidence of awareness that the constitution could not only shield conduct (nondefamatory speech) from civil liability but also limit other private conduct (damage suits for nondefamatory speech). . . . At the very least, its inclusion in 1849 supports the argument that the document’s drafters . . . did not have a fixed notion that only the conduct of public actors could be affected by constitutional guarantees.” (Private [370] vote Actors, supra, 17 Hastings Const. L.Q. at p. 122.)

Third, were it accurate that the framers “`feared only government intrusions'” (lead opn., ante, 111 Cal.Rptr.2d at p. 344, 29 P.3d at p. 804), the proffered conclusion—that in drafting the state free speech clause as a whole the framers “intended to impose a state action requirement” (id. at p. 345, 29 P.3d at p. 805)—would not follow, for, as the lead opinion itself notes, the framers, regardless of what type of intrusion they feared most, evidently also “`wished to declare generally the sanctity of free expression'” (id. at p. 344, 29 P.3d at p. 804) as against the world. (See also Gerawan, supra, 24 Cal.4th at pp. 492-193, 101 Cal.Rptr.2d 470, 12 P.3d 720.) The language they employed does just that.

Plain English is not ambiguous unless “there are two meanings which may reasonably be attributed to the term in question.” (Reserve Insurance Co. v. Pisciotta(1982) 30 Cal.3d 800, 815, 180 Cal.Rptr. 628, 640 P.2d 764 [contract provision]; see also Davis v. City of Berkeley (1990) 51 Cal.3d 227, 235, 272 Cal.Rptr. 139, 794 P.2d 897 [constitutional provision].) Applying this fundamental principle of construction, we previously have held that a constitutional liberty conferred without qualification is neither “`ambiguous or doubtful'” in scope but, rather, “`applies to all . . . substantial . . . impair[ments]'” of the right conferred and “`is not aimed solely at'” (Meriwether Invest. Co., Ltd. v. Lampton (1935) 4 Cal.2d 697, 703, 53 P.2d 147) any subset thereof. (See also Welsh v. Cross (1905) 146 Cal. 621, 624, 81 P. 229.)[FN.12]Ultimately, the same principle applies here. In light of its unqualified statement of the free speech right, section 2(a) is not susceptible of being construed as applicable only against state or state-like action.

In short, the lead opinion fails to demonstrate that, despite its plain language and contrary to our pronouncements in Robins and Gerawan, section 2(a) contains ambiguities regarding state action the resolution of which requires recourse to extrinsic sources concerning the framers’ intent. But even were such ambiguities present, I would conclude, based on section 2(a)’s history and context, that—asRobins impliedly held and Gerawan confirmed—our Constitution grants a free speech right running against private parties as well as state actors.

The state free speech clause first appeared as article I, section 9 of the original California Constitution of 1849: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions . . . for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.” (Cal. Const, of 1849, art. I, § 9.)

The clause next appeared as article I, section 9 of the present California Constitution of 1879. It was identical to its [371] predecessor but for the addition of a sentence further relating to criminal libel. (See Cal. Const., art. I, former § 9, as adopted May 7, 1879.)[FN.13] In 1974, the clause was revised by the addition of new section 2 to article I and the deletion of old section 9: “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.” (Cal. Const., art. I, § 2, added Nov. 5, 1974.) [FN.14] Finally, the clause was redesignated in 1980 as article I, section 2, subdivision (a).

Thus, like the present clause, the state free speech clause as originally drafted drew no distinction between state actors and private parties, impliedly therefore granting a free speech right that runs against both. Also like the present clause, the original clause expressly noted speakers’ responsibility for “abuse” of the free speech right, language that—to the extent it may be read as preserving the right of aggrieved private parties to sue for defamation (see Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203, 31 Cal.Rptr.2d 776, 875 P.2d 1279)—the lead opinion’s proffered state action requirement would render superfluous.

Examination of the constitutional context of the original state free speech clause, as originally enacted and as it appears today, buttresses the conclusion that it grants a right of free speech running against private parties as well as state actors. Enacted together with the free speech clause in the Constitution of 1849 was a clause that granted to wives a separate property right as against their husbands, who were obviously private parties. (Cal. Const, of 1849, art. XI, § 14.) This separate-property clause clearly illustrates that the free speech clause was not unique, in 1849, in granting rights against private parties as well as state actors.

Today the state free speech clause appears in the same article as the privacy clause: “All people are by nature free and independent and have inalienable rights. Among these [is] . . . privacy.” (Cal. Const., art. I, § 1.) The right of free speech and the right of privacy complement each other, the former dealing with communication to others (see Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 510-511, 217 Cal. Rptr. 225, 703 P.2d 1119 [implying speech “communicates a message” from speaker to audience]), the latter dealing both with conduct apart from others and information kept from others (see Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 387, 33 Cal. Rptr.2d 63, 878 P.2d 1275;Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 35-36, 26 Cal.Rptr.2d 834, 865 P.2d 633). Just as the right of privacy runs against private parties as well as state actors (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 15-20, 26 Cal.Rptr.2d 834, 865 P.2d 633), so [372] too, as demonstrated, runs the right of free speech.

Given that the history and context of the California free speech provision sufficiently confirm its meaning, any excursion into the history of the New York Constitution from which the clause derived is unnecessary. Nor is the relevance of that history clear. The lead opinion posits no evidence that the framers of California’s Constitution were aware of or indeed intended to adopt those aspects of the New York history that relate to state action. Nor does it persuade that the framers of the New York Constitution “intended its free speech clause `to serve as a check on governmental, not private, conduct.'” (Lead opn., ante, 111 Cal.Rptr.2d at p. 345, 29 P.3d at p. 805.) The authorities underlying SHAD Alliance v. Smith Haven Mall (1985) 66 N.Y.2d 496, 498 N.Y.S.2d 99, 488 N.E.2d 1211, cited by the lead opinion, as well as the lead opinion’s other authorities, tend upon examination to support only the first half of that claim, i.e., that the New York framers wished to guard against government encroachments on speech, not the latter half, i.e., that they wished not to guard against private encroachments. (See, e.g., SHAD Alliance, supra, 66 N.Y.2d at p. 502, 498 N.Y.S.2d 99, 488 N.E.2d 1211 [citing various scholars for the truism that “a Bill of Rights is designed to protect individual rights against the government”].) One commentator, noting that the New York “minutes do not reveal why the delegates chose to declare an open-ended right rather than simply to prohibit oppressive `laws,'” reasons that “perhaps [the broader language] was more attractive precisely because it secured a precious liberty against the entire world.” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 120.)

Finally, whatever the decisions of most of our sister courts (see lead opn., ante, 111 Cal.Rptr.2d at p. 349, 29 P.3d at p. 808, what matters is the meaning of California’sfree speech clause. Any assertion that there exists a uniform and unchanging “American constitutional theory” (lead opn., ante, at p. 349, 29 P.3d at p. 808) is not supportable. (See generally Baum & Fritz, American Constitution-Making: The Neglected State Constitutional Sources (2000) 27 Hastings Const. L.Q. 199, 199-201; Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West (1994) 25 Rutgers L.J. 945, 952-956, 964-971.)

Ultimately, neither the text of the state free speech clause, the history of its adoption, our prior pronouncements, nor considerations of constitutional theory supports judicial imposition of a state action limitation on Californians’ free speech rights. Consequently, I join with the Chief Justice in rejecting the lead opinion’s discussion and conclusions with regard to the state action doctrine (cone, opn., ante, 111 Cal.Rptr.2d at p. 354, 29 P.3d at p. 812) and would adhere to our traditional understanding that, even when a restriction on speech “does not implicate any right to freedom of speech under the First Amendment, [it may nevertheless] implicate such a right under [California’s free speech clause]” (Gerawan, supra, 24 Cal.4th at p. 476, 101 Cal.Rptr.2d 470, 12 P.3d 720).

III.

Regrettably, four justices of this court join today in denying constitutional protection to the tenant speech at issue here. The concurring opinion, like the lead opinion, emphasizes that Golden Gateway’s premises are not open to the public. To that extent, I agree this case is different from Robins factually. I disagree the distinction is dispositive. Rather, that the owner of private property may exclude [373] members of the general public from entry onto the premises without necessarily implicating their free speech rights says little about the rights of those who are lawful members of a community occupying units of the property as their residences.

Both opinions, moreover, overlook a critical respect in which this case is factuallysimilar to Robins: The private property owner seeking to restrict speech already has for its own purposes surrendered to those whose speech it would restrict much of its interest in retaining exclusive control over the premises. Golden Gateway seeks to enjoin tenant speech (as the owners of the shopping center in Robins sought to restrict some patrons’ speech), but it already has surrendered to tenants, for virtually the entire range of activities and uses associated with daily living, the hallways and other common areas of the building. Similarly, as the lead and concurring opinions acknowledge, the owners of the shopping center in Robins had “invited [the public] to visit for the purpose of patronizing the many businesses” (Robins, supra, 23 Cal.3d at p. 902, 153 Cal.Rptr. 854, 592 P.2d 341).

The concurring opinion concludes that the tenant speech Golden Gateway’s leafleting ban would affect lies outside “the appropriate limit of th[e] substantive right of free speech” (cone, opn., ante, 111 Cal. Rptr.2d at p. 354, 29 P.3d at p. 812). But contrary to the concurring opinion, Golden Gateway’s ban is not a “`reasonable regulation, by an owner, of conduct inside [its] multiple dwelling'” (id. at p. 354, 29 P.3d at p. 812, quoting Watchtower Bible & Tract Soc, Inc. v. Metropolitan Life Ins. Co. (1948) 297 N.Y. 339, 79 N.E.2d 433, 436-437, italics in cone. opn. omitted). As explained above, the ban goes much further than is necessary to address any legitimate concerns Golden Gateway may have about tenant safety, tenant privacy, or cleanliness of the premises.

With the concurring opinion, therefore, I reject a view of our state free speech clause that “effectively would remove any state constitutional obstacle to any . . . action by a landlord, union, or employer” implicating an individual’s core free speech rights. (Cone, opn., ante, 111 Cal.Rptr.2d at p. 360, 29 P.3d at p. 816.) But I also reject the concurring opinion’s approach, which would do much the same with respect to published communications, despite their constitutionally equal—and traditionally cherished—status in this state as protected expressive activity.

Conclusion

For the foregoing reasons, I would reverse the judgment of the Court of Appeal.

KENNARD, J., and KLEIN, J.[FN.*], concur.

[FN.1] All further undesignated article references are to the California Constitution unless otherwise indicated.

[FN.2] The First Amendment of the United States Constitution states in relevant part: “Congress shall make no law . . . abridging the freedom of speech

[FN.3] In holding that high school students had a state constitutional right to solicit signatures in a privately owned shopping center, Robins weighed the students’ right to free speech against the property rights of the owner of the shopping center. (Robins, supra, 23 Cal.3d at pp. 910-911, 153 Cal.Rptr. 854, 592 P.2d 341.) Robins did not, however, consider the free speech rights of the owner under the California Constitution. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 513, 101 Cal.Rptr.2d 470, 12 P.3d 720 (Gerawan) [holding that California’s free speech clause grants “a right to refrain from speaking at all as well as a right to speak freely”].) We express no opinion here as to the role of these rights in ascertaining the scope of free speech rights guaranteed by article I, section 2, subdivision (a).

[FN.4] (See, e.g., Friedelbaum, Private Property, Public Property: Shopping Centers and Expressive Freedom in the States (1999) 62 Alb. L.Rev. 1229, 1239 (Private Property, Public Property) [“It is difficult to understand how a threshold issue [state action] of such importance could have been overlooked except for the fervency of both federal and state courts to attain other objectives” (fn.omitted) ]; Kelso, California’s Constitutional Right to Privacy (1992) 19 Pepperdine L.Rev. 327, 413 (California’s Right to Privacy) [“the court in Pruneyard does not resolve whether the free speech clause applies to all private conduct which burdens speech or only to private conduct imbued with public elements sufficient to trigger the protections of the Declaration of Rights”]; Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at pp. 1090, 1092 [expressing surprise at Robins’s failure to address the state action issue and noting other analytical problems]; Devlin, Constructing an Alternative to “State Action” as a Limit on State Constitutional Rights Guarantees: A Survey, Critique and Proposal (1990) 21 Rutgers L.J. 819, 832 (Constructing an Alternative) [“the [Robins ] court was less explicit about its reasons for applying the state constitution . . . [and] did not clarify whether it rejected a state action requirement or simply broadened the federal definition of `state action’ to embrace the peculiar facts of the case” (fn.omitted) ]; Simon, Independent but Inadequate: State Constitutions and Protection of Freedom of Expression (1985) 33 U.Kan. L.Rev. 305, 325-336 (State Constitutions and Protection of Freedom of Expression) [“The Pruneyard court did not explain why this [free speech] burden applied to private parties . . . [and] did not attempt to delineate the scope of California’s affirmative right of freedom of expression”]; Comment, State Constitutional Rights of Free Speech on Private Property: The Liberal Loophole (1982/1983) 18 Gonz. L.Rev. 81, 94 (State Constitutional Rights of Free Speech ) [“The California Supreme Court in Robins, however, never expressly rejected this [state action] prerequisite and in fact simply avoided the issue”]; Comment, Transforming the Privately Owned Shopping Center into a Public Forum: Pruneyard Shopping Center v. Robins (1981) 15 U.Rich. L.Rev. 699, 720 [Robins is “confusingly broad” (fn.omitted) ]; Note, Robins v. Pruneyard Shopping Center: Free Speech Access to Shopping Centers Under the California Constitution (1980) 68 Cal. L.Rev. 641, 645 (Free Speech Access to Shopping Centers) [suggesting that the court was not prepared to address the state action issue in Robins ]; but see, e.g., Ragosta, Free Speech Access to Shopping Malls Under State Constitutions: Analysis and Rejection (1986) 37 Syracuse L.Rev. 1, 21 (Free Speech Access to Shopping Malls) [observing that “only California has completely and clearly rejected a state action limitation upon free speech” (fn.omitted) ]; Utter, The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment (1985) 8 U. Puget Sound L.Rev. 157, 169 [“Although the [Robins ] court did not expressly state that the California Constitution had no state action requirement, the Washington court has interpreted Robins as impliedly abandoning any state action requirement for the California Constitution” (fn.omitted)].)

[FN.5] (See, e.g., Fiesta Mall Venture v. Mecham Recall Committee (App.1988) 159 Ariz. 371, 767 P.2d 719, 724 (Fiesta Mall Venture) [finding no state constitutional right to free speech in a privately owned shopping center]; Cologne v. Westfarms Assocs. (1984) 192 Conn. 48, 469 A.2d 1201, 1210 (Cologne) [same]; Cahill v. Cobb Place Associates (1999) 271 Ga. 322, 519 S.E.2d 449, 450-451 (Cahill) [same]; Eastwood Mall, Inc. v. Slanco (1994) 68 Ohio St.3d 221, 626 N.E.2d 59, 61-62 (Eastwood Mall) [same]; Woodland v. Michigan Citizens Lobby (1985) 423 Mich. 188, 378 N.W.2d 337, 358 (Woodland) [same]; Minnesota v. Wicklund (Minn. 1999) 589 N.W.2d 793, 802 (Wicklund)[same]; S.O.C., Inc. v. Mirage Casino-Hotel (Nev.2001) 23 P.3d 243, 250 (S.O.C.) [declining to adopt the rationale of Robins ]; SHAD Alliance v. Smith Haven Mall (1985) 66 N.Y.2d 496, fn. 5, 498 N.Y.S.2d 99, 102, 488 N.E.2d 1211, 1214 (SHAD Alliance) [finding no state constitutional right to free speech in a privately owned shopping center]; Southcenter loint Venture v. National Democratic Policy Com. (1989) 113 Wash.2d 413, 780 P.2d 1282, 1292 (Southcenter Joint Venture) [same];Jacobs v. Major (1987) 139 Wis.2d 492, 407 N.W.2d 832, 841 (Jacobs) [same]; but see Bock v. Westminster Mall Co. (Colo. 1991) 819 P.2d 55, 61-63 [finding a state constitutional right to leaflet in a privately owned shopping center]; New Jersey Coalition Against War v. J.M.B. Realty Corp. (1994) 138 N.J. 326, 650 A.2d 757, 780 (New Jersey Coalition Against War) [same].) Various state courts have also held that a state constitutional provision concerning the right to petition does not protect the solicitation of signatures in a privately owned shopping center. (See, e.g., Stranahan v. Fred Meyer, Inc. (2000) 331 Or. 38, 11 P.3d 228, 243 [finding no state constitutional right to petition in a privately owned shopping center]; Citizens for Ethical Gov. v. Gwinnett (1990) 260 Ga. 245, 392 S.E.2d 8, 9-10[same]; but see Batchelder v. Allied Stores Intern., Inc. (1983) 388 Mass. 83, 445 N.E.2d 590, 595[finding a state constitutional right to solicit signatures in a privately owned shopping center pursuant to a clause in the Massachusetts Constitution concerning freedom and equality of elections].)

[FN.6] (See, e.g., Eule & Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse (1998) 45 UCLA L.Rev. 1537; Chemerinsky, More Speech is Better(1998) 45 UCLA L.Rev. 1635; Varat, When May Government Prefer One Source of Private Expression Over Another? (1998) 45 UCLA L.Rev. 1645; Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. 1073; Friesen, Should California’s Constitutional Guarantees of Individual Rights Apply Against Private Actors? (1989) 17 Hastings Const. L.Q. 111 (Private Actors ); Sundby, Is Abandoning State Action Asking Too Much of the Constitution? (1989) 17 Hastings Const.L.Q. 139; Free Speech Access to Shopping Centers, supra, 68 Cal. L.Rev. 641; Free Speech Access to Shopping Malls, supra, 37 Syracuse L.Rev. 1; Cohen, Pruneyard Shopping Center v. Robins: Past, Present and Future (1981) 57 Chi.-Kent L.Rev. 373 (Pruneyard Shopping Center).)

[FN.7] (See 5 Thorpe, The Federal and State Constitutions (1909) pp. 2648, 2654; see also Reiner & Size, The Law Through a Looking Glass: Our Supreme Court and the Use and Abuse of the California Declaration of Rights (1992) 23 Pacific L.J. 1183, 1197 [“In order to appreciate the intellectual origins of our California Declaration of Rights, it is necessary to understand, first, that it was the 1846 New York Constitution . . . which our delegates were looking at in Monterey in 1849. Second, the provisions of the 1846 bill of rights for the most part trace their language to the 1821 constitution”].)

[FN.8] (See Private Property, Public Property, supra, 62 Alb. L.Rev. at pp. 1238-1239; California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at p. 1090; Constructing an Alternative, supra, 21 Rutgers L.J. at p. 832; A Terrible Beauty, supra, 9 Whittier L.Rev. at p. 731; State Constitutional Rights of Free Speech, supra, 18 Gonz. L.Rev. at pp. 94-95; Free Speech Access to Shopping Centers, supra, 68 Cal. L.Rev. at p. 645; see also Laguna Publishing, supra, 131 Cal.App.3d at p. 838, 182 Cal.Rptr. 813 [declining to interpret Robins as rejecting a state action limitation].)

[FN.9] (See, e.g., Fiesta Mall Venture, supra, 767 P.2d at p. 723 [holding that the state free speech clause did not restrain private conduct]; Cologne, supra, 469 A.2d at p. 1209 [same]; Cahill, supra, 519 S.E.2d at p. 450 [same]; State v. Lacey (Iowa 1991) 465 N.W.2d 537, 540 [same]; Eastwood Mall, supra, 626 N.E.2d at p. 61 [same]; People v. DiGuida (1992) 152 Ill.2d 104, 178 Ill.Dec. 80, 604 N.E.2d 336, 344 [same]; Woodland, supra, 378 N.W.2d at p. 348 [same]; Wicklund, supra, 589 N.W.2d at p. 801 [same]; S.O.C., supra, 23 P.3d at p. 251 [same]; SHAD Alliance, supra, 498 N.Y.S.2d 99, 488 N.E.2d at p. 1214, fn. 5 [same]; Western Pennsylvania Socialist Workers v. Connecticut General Life Ins. Co. (1986) 512 Pa. 23, 515 A.2d 1331, 1335 [same]; Southcenter Joint Venture, supra, 780 P.2d at p. 1292 [same]; Jacobs, supra, 407 N.W.2d at p. 841 [same]; but see New Jersey Coalition Against War, supra, 650 A.2d at p. 771 [holding that “the State right of free speech is protected . . . from unreasonably restrictive and oppressive conduct by private entities”].)

[FN.10] Contrary to the dissent’s characterization (see dis. opn., post, 111 Cal.Rptr.2d at p. 372, 29 P.3d at p. 827), Chief Justice George expressly declines to reach the state action question and expresses no opinion as to whether California’s free speech clause requires state action (see cone, opn., post,111 Cal.Rptr.2d at p. 359, 29 P.3d at p. 816).

[FN.11] (See Diamond I, supra, 3 Cal.3d at p. 661, 91 Cal.Rptr. 501, 477 P.2d 733 [relying on the First Amendment and Logan Valley ]; In re Lane (1969) 71 Cal.2d 872, 878, 79 Cal.Rptr. 729, 457 P.2d 561 (Lane) [same]; In re Hoffman (1967) 67 Cal.2d 845, 849-850, 64 Cal. Rptr. 97, 434 P.2d 353 (Hoffman) [relying on the First Amendment and Marsh ]; Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766, 771, 40 Cal.Rptr. 233, 394 P.2d 921 (Schwartz-Torrance) [relying on Marsh and other First Amendment precedents].)

[FN.12] (See Diamond II, supra, 11 Cal.3d 331, 342-343, 113 Cal.Rptr. 468, 521 P.2d 460 (dis. opn. of Mosk, J.) [emphasizing the publie’s unrestricted access to the shopping center]; Diamond I, supra, 3 Cal.3d at pp. 659-660, 91 Cal.Rptr. 501, 477 P.2d 733 [same]; Lane, supra, 71 Cal.2d at pp. 877-878, 79 Cal.Rptr. 729, 457 P.2d 561 [emphasizing the public nature of the sidewalk and store]; Hoffman, supra, 67 Cal.2d at pp. 847, 851, 64 Cal.Rptr. 97, 434 P.2d 353 [emphasizing that the railway station was open to the public and contained a “spacious area” with numerous retail establishments where the public could and would congregate]; Schwartz-Torrance, supra, 61 Cal.2d at pp. 768, 772, 40 Cal.Rptr. 233, 394 P.2d 921 [emphasizing the public nature of the shopping center].)

[FN.13] Consequently, we do not reach the issue of whether Golden Gateway’s ban on leafletting is a reasonable time, place and manner restriction on free speech.

[FN.14] (See, e.g., Linn Valley Lakes Property Owners Assn. v. Brockway (1992) 250 Kan. 169, 824 P.2d 948, 951 [judicial enforcement of a constitutionally permissible restrictive covenant is not state action];Midlake on Big Boulder Lake v. Cappuccio (1996) 449 Pa.Super. 124, 673 A.2d 340, 342 [same];Washington v. Noah (2000) 103 Wash.App. 29, 9 P.3d 858, 870 [judicial enforcement of a voluntary settlement agreement is not state action]; cf. CompuServe Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015, 1026 [“the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor”]; Commonwealth v. Hood (1983) 389 Mass. 581, 452 N.E.2d 188, 193 [judicial enforcement of neutral trespass statute is not state action]; but see Franklin v. White Egret Condominium (Fla.Dist.Ct.App. 1977) 358 So.2d 1084, 1087-1088 [finding enforcement of a restrictive covenant barring children under the age of 12 unconstitutional], affd. by White Egret Condominium v. Franklin (Fla. 1979) 379 So.2d 346; West Hill Baptist Church v. Abbate(Common Pleas 1969) 24 Ohio Misc. 66, 261 N.E.2d 196, 200 [judicial enforcement of restrictive covenant excluding houses of worship constitutes state action].)

[FN.1] The court observed: “The 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. [Citation.] Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” (Marsh, supra, 326 U.S. at p. 506, 66 S.Ct. 276.)

[FN.2] The high court reversed Logan Valley in Hudgens v. National Labor Relations Bd. (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196.

[FN.3] The court in Batchelder observed: “We are not discussing signature solicitations in stores but only unobtrusive and reasonable solicitations in the common areas of the mall, areas that have been dedicated to the public as a practical matter.” (Batchelder, supra, 445 N.E.2d at p. 595, italics added.)

[FN.4] In Southcenter v. National Dem. Policy Comm. (1989) 113 Wash.2d 413, 780 P.2d 1282, 1290, the Washington Supreme Court subsequently reaffirmed this aspect of Aiderwood, while at the same time rejecting other facets of that decision.

[FN.5] Decisions upholding a right to distribute pamphlets door-to-door (e.g., Martin v. City of Struthers(1943) 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Van Nuys Pub. Co. v. City of Thousand Oaks(1971) 5 Cal.3d 817, 97 Cal. Rptr. 777, 489 P.2d 809) recognize that unless the occupant of a dwelling announces a desire not to receive unsolicited material, members of the general public are permitted to traverse a private walkway, and leave pamphlets on or near any dwelling door that is located in an area not closed to the general public. Accordingly, in situations contemplated in those decisions, unlike the present case, the area leading to and immediately surrounding the door is notclosed to the general public.

Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813(Laguna Publishing Co.) is distinguishable from the present case. In that case, a newspaper publisher was barred by the homeowners association of a private gated community from entering the community and depositing unsolicited copies of its free newspaper at the doors of the residents of the community. At the same time, the association permitted another newspaper publisher to deliver its competing free and unsolicited newspaper to the doors of the community residents. The excluded publisher sued in order to establish its right to distribute on an equal footing with the preferred publisher. Although the Court of Appeal found that the excluded publisher had a right under article 2(a) to distribute its newspapers to the doors of the community residents on an equal basis with the other publisher, that court’s decision rested upon the discriminatory nature of the challenged policy. (See Laguna Publishing Co., supra, at pp. 840-845, 182 Cal.Rptr. 813.) The Court of Appeal in Laguna Publishing Co. concluded that the dispute presented was “purely and simply a discrimination case with substantial economic consequences,” and “not one truly involving the resolution of rights of free speech in conflict with the vested rights of private property.” (Id., at pp. 847-848, fn. 14, 182 Cal.Rptr. 813.)

[FN.1] In its entirety, section 2(a) provides: “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.”

[FN.2] The lead opinion suggests that the justices in Gerawan‘s majority “did not carefully consider whether California’s free speech clause requires state action” (lead opn., ante, 111 Cal.Rptr.2d at p. 348, 29 P.3d at p. 807) when they stated that it “runs against the world, including private parties” (Gerawan, supra, 24 Cal.4th at p. 492, 101 Cal.Rptr.2d 470, 12 P.3d 720), but that the statement may have been dictum does not mean it was ill considered. As explained above, moreover, and contrary to the lead opinion’s further assertion, the Gerawan majority provided ample analytical support (lead opn., ante, at p. 348, 29 P.3d at p. 807) for its statement.

[FN.3] Actually, the private property involved in Robins, contrary to the lead opinion’s implication, was not open to the public without qualification, but only at certain times and “for the purpose of patronizing the many businesses.” (Robins, supra, 23 Cal.3d at p. 902, 153 Cal.Rptr. 854, 592 P.2d 341.)

[FN.4] See, e.g., Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 166, 87 Cal. Rptr.2d 132, 980 P.2d 846 (cone. opn. of Werdegar, J.) (“[b]alancing . . . First Amendment free speech rights with the equally weighty right of plaintiffs to be let alone at their jobsite, free of racial discrimination”);Sommer v. Metal Trades Council (1953) 40 Cal.2d 392, 401-402, 254 P.2d 559 (noting the “`effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and “the power of the State to set the limits of permissible contest open to industrial combatants”‘”); Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228, 253 P.2d 441(holding the “right `to be let alone’ and to be protected from undesired publicity is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press”).

[FN.5] Martin v. City of Struthers, supra, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 and Van Nuys, supra, 5 Cal.3d 817, 97 Cal.Rptr. 777, 489 P.2d 809 both were cases decided in the First Amendment context, but the free speech interests they involved were similar to those with which this case deals. “As a general rule, [moreover, California’s] free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment’s, they are even `broader’ and `greater.'” (Gerawan, supra, 24 Cal.4th at p. 491, 101 Cal.Rptr.2d 470, 12 P.3d 720, citing numerous authorities.)

[FN.6] The assumption may be faulty. The current version of Golden Gateway’s ban, the first expressly to prohibit “leafleting,” was promulgated shortly after the Tenants Association distributed flyers criticizing Golden Gateway’s management and discussing a Tenants Association lawsuit against Golden Gateway. The record, moreover, suggests that Golden Gateway construes its ban as not restricting itsown communicative prerogatives.

[FN.7] But such communication is not without restriction. Under the Building Standards’ solicitation ban, tenants may not even speak with each other in the common areas of the building if to solicit membership in the Tenants Association, engage in religious proselytizing, distribute campaign literature, seek political or charitable contributions, or, indeed, seek support for causes of any kind.

[FN.8] While Golden Gateway’s property managers testified in general terms to tenant concern about leafleting, the record reveals that Golden Gateway ultimately could document only one resident complaint about door-to-door leafleting in over 15 years.

[FN.9] This is not to say, of course, that free speech rights, when implicated, always must prevail over competing considerations. As we observed in Robins, for example, appropriate constitutional balancing of free speech interests against “`the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment'” (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341) might come out differently.

[FN.10] Golden Gateway’s ban does not distinguish between, and is not tailored separately to address, commercial and noncommercial speech. Moreover, Golden Gateway’s Building Standards by their terms bar, and the injunction Golden Gateway seeks would burden, only tenant speech. We need not decide, therefore, what result an appropriate balancing of constitutional considerations would generate in a case implicating only commercial or only nontenant speech.

[FN.11] For convenience, the discussion that follows occasionally employs the lead opinion’s apparent shorthand expression “state action” for the “state or state-like action” limitation on state free speech rights the lead opinion would impose. As will appear, however, I disagree that Robins stands for the proposition that “private property must be public in character before California’s free speech clause may apply” (lead opn., ante, 111 Cal. Rptr.2d at pp. 351-352, 29 P.3d at pp. 809-810). Still less am I willing to embrace the logically incoherent notion that “the actions of a private property owner constitute state action . . . if the property is freely and openly accessible to the public” (id. at p. 352, 29 P.3d at p. 810).

[FN.12] Specifically, in Meriwether we held that, in forbidding any “`”law impairing the obligation of contract,”‘” former article I, section 16 of the California Constitution plainly was “`not aimed solely at laws which expressly destroy or annul contracts.'” (Meriwether Invest. Co., Ltd. v. Lampton, supra, 4 Cal.2d at p. 703, 53 P.2d 147.) In Welsh, we reasoned that, as that clause by its terms “is not aimed solely at” laws which expressly annul contracts, it “applies to all laws which in any substantial degree” have that effect. (Welsh v. Cross, supra, 146 Cal. at p. 624, 81 P. 229.)

[FN.13] The additional sentence read: “Indictments found, or information laid, for publications in newspapers shall be tried in the county where such newspapers have their publication office, or in the county where the party alleged to be libeled resided at the time of the alleged publication, unless the place of trial shall be changed for good cause.” (Cal. Const., art. I, former § 9, as adopted May 7, 1879.)

[FN.14] This revision retained, without substantial change, the state free speech clause at its core and removed the provisions relating to procedure in prosecutions for criminal libel as more suited to statute than constitution. (See Ballot Pamp., Gen. Elec. (Nov. 5, 1974) analysis of Prop. 7 by Legis. Analyst, p. 26.)

[FN.*] Presiding Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Civil Code Section 1940.20. Clotheslines and Drying Racks; Tenant Protections.

(a) For purposes of this section, the following definitions shall apply:

(1) “Clothesline” includes a cord, rope, or wire from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline.

(2) “Drying rack” means an apparatus from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a drying rack.

(3) “Private area” means an outdoor area or an area in the tenant’s premises enclosed by a wall or fence with access from a door of the premises.

(b) A tenant may utilize a clothesline or drying rack in the tenant’s private area if all of the following conditions are met:

(1) The clothesline or drying rack will not interfere with the maintenance of the rental property.

(2) The clothesline or drying rack will not create a health or safety hazard, block doorways, or interfere with walkways or utility service equipment.

(3) The tenant seeks the landlord’s consent before affixing a clothesline to a building.

(4) Use of the clothesline or drying rack does not violate reasonable time or location restrictions imposed by the landlord.

(5) The tenant has received approval of the clothesline or drying rack, or the type of clothesline or drying rack, from the landlord.

Related Links

AB 1448 Signed! HOA Bans on Clotheslines Get ‘Hung out to Dry’Published on HOA Lawyer Blog (10/12/15)

Davis-stirling Act

Civil Code Section 4753. Clothesline and Drying Rack Restrictions.

(a) For purposes of this section, “clothesline” includes a cord, rope, or wire from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline.

(b) For purposes of this section, “drying rack” means an apparatus from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a drying rack.

(c) Any provision of a governing document, as defined in Section 4150, shall be void and unenforceable if it effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.

(d)

(1) This section does not apply to provisions that impose reasonable restrictions on an owner’s backyard for the use of a clothesline or drying rack.

(2) For purposes of this section, “reasonable restrictions” are restrictions that do not significantly increase the cost of using a clothesline or drying rack.

(3) This section applies only to backyards that are designated for the exclusive use of the owner.

(e) Nothing in this section shall prohibit an association from establishing and enforcing reasonable rules governing clotheslines or drying racks.

(Added by renumbering Section 4750.10 by Stats. 2016, Ch. 714, Sec. 7. Effective January 1, 2017.)

Related Links

AB 1448 Signed! HOA Bans on Clotheslines Get ‘Hung out to Dry’Published on HOA Lawyer Blog (10/12/15)

Bear Creek Master Association v. Edwards

(2005) 31 Cal.Rptr.3d 337

[Duty to pay; Assessment Liens] A recorded assessment lien secures the assessment debt that continues to accrue on the owner’s account; the debt is not limited solely to the amount stated in the lien at the time the lien was initially recorded.

Law Office of Lucia Enriquez and Lucia Enriquez; Quinn Emanuel Urquhart Oliver & Hedges, and John S. Gordon, Los Angeles, attorneys for Defendants and Appellants.
Fiore, Racobs & Powers, Peter E. Racobs and Michelle A. Buchmeier, Palm Desert, attorneys for Plaintiff and Respondent.

Certified for Partial Publication.[FN.*]

OPINION

WARD, J.

Defendants and appellants Parlan L. Edwards and Gloria Renico Edwards, as trustees of the Parlan L. Edwards and Gloria Renico Edwards Family Trust (the Trust), appeal from a judgment in favor of plaintiff and respondent Bear Creek Master Association (Bear Creek), on Bear Creek’s action for breach of contract and foreclosure. Although both Edwardses are named trustees of the trust, the primary actor throughout has been Parlan L. Edwards; for convenience, therefore, we refer to “Edwards” in the singular, as the representative of the Trust and as the person who performed most of the salient acts on defendants’ behalf.

Edwards and the Trust also appeal postjudgment orders for attorney fees and requiring them to post additional security pending appeal.

The key issue in the appeal is whether a homeowners’ association may charge homeowners’ association dues or assessments for unbuilt property within a planned and partially built homeowners’ association development. The Trust’s parcel was planned for eight condominium units, out of a phase of sixteen, but none of the units on the Trust’s portion of the property had actually been constructed. This dispute arose because the Trust failed to pay homeowners’ association assessments; indeed, it refused to do so on the theory that assessments are chargeable only to a “condominium unit,” but that there were no built-out “units” on the Trust’s property.

As we shall explain below, we affirm the judgment and the postjudgment orders.

FACTS AND PROCEDURAL HISTORY

Bear Creek is the master homeowners’ association for the master Bear Creek development. Country Club Villas (CCV) is the homeowners’ association, or subassociation, within the Bear Creek master development. The property at issue is located within the CCV subassociation area within the Bear Creek master development. The property comprises what is described as units 9-16 of Phase IV of the Country Club Villas subassociation. Units 9-16 were eight unbuilt condominium units within CCV Phase IV. Sixteen condominiums were originally designed for CCV Phase IV; eight condominiums were built in “pods” of two units each, but the remaining eight units, comprising units 9-16, were never constructed.

A company called Watt Bear Creek had owned units 9-16 of CCV Phase IV, but lost title to that property through foreclosure. The property was acquired by Bear Creek Limited, which was owned by Bill Johnson. Edwards apparently lent a sum of money to Johnson, which Johnson failed to repay.

At the time that Edwards lent the funds to Johnson, he did not further investigate the status of Johnson’s property; he simply relied on Johnson’s representation that the property was worth twice the amount borrowed. He did no research in the Riverside County Assessor’s Office, he did not research recorder’s office records regarding the property, and he never read the Bear Creek CC & R’s applicable to the property. Edwards testified that he had purchased numerous properties in the past and that he was familiar with title reports, [341] but that he did not review any title report on the property before lending to Johnson.

Johnson defaulted on the Edwards loan, and Edwards foreclosed. Again, before foreclosing and taking title to the property, Edwards did not check the assessor’s records, did not check the recorder’s records, and did not obtain a title report. Edwards foreclosed on the property and took title for the Trust in approximately December 1997. Edwards’s attorney, Lucila Enriquez, telephoned the Bear Creek property manager in January 1998 to explain that Edwards was now the owner of units 9-16 of CCV Phase IV. Attorney Enriquez told the property manager that she was representing Edwards in connection with his ownership of the lots, and advised that she and Edwards had had some difficulty accessing the property. She followed up the telephone conversation with a copy of the title document showing the transfer from Johnson to Edwards.

The deed giving title to Edwards, on behalf of the trust, listed attorney Enriquez’s address as the address to which the recorded deed was to be mailed. It was to attorney Enriquez’s address, therefore, that Bear Creek sent various notices to Edwards, as owner of units 9-16 of CCV Phase IV.

Among other things, Bear Creek mailed homeowners’ association ballots and notices of association assessments to Edwards, always to attorney Enriquez’s address. As already noted, attorney Enriquez herself had telephoned Bear Creek’s property manager in January of 1998 to inform Bear Creek that the Trust had acquired ownership of the property. The homeowners’ ballots for each of the Trust’s units were voted and returned. The ballots included a space to write in the owner’s address; except in two instances in which the address space was left blank, the voted ballots that Edwards returned all gave attorney Enriquez’s address as the owner’s address.

Bear Creek also sent notices of delinquent homeowners’ association assessments for the units, and notices of intent to file a lien. These notices were sent both by first class mail and by certified mail with return receipt requested, to the Trust at attorney Enriquez’s address. The certified mail envelopes were returned unclaimed, but the first class mail was not returned by the post office.

Before Bear Creek filed the instant suit, no one had ever informed Bear Creek that attorney Enriquez was not authorized to receive communications from Bear Creek at her address. Normally, if a property owner wishes to change its address of record with Bear Creek, the owner notifies the property manager in writing. The property manager never received such a notification with respect to units 9-16 of CCV Phase IV.

Bear Creek adduced evidence that it had charged association assessments to prior owners of units 9-16, even though those eight units were unbuilt. Bear Creek also charged assessments to other unbuilt units within the Bear Creek master development. The triggering event is when one unit in a phase is sold; after that, assessments are charged to each unit in the phase. Bear Creek consistently charged such assessments against every unit in a phase which had sold one property, and had done so regardless of whether the unit consisted of a house, townhouse, condominium, or unbuilt structure.

Edwards testified that he believed the assessments, under the CC & R’s, applied only to “condominiums.” Inasmuch as there were no condominium buildings on his property, he took the view that he had no duty to pay the assessments. He further testified that he also believed that he [342] had no right, as he owned no “units” or “condominiums,” to vote in homeowners’ association elections. He claimed that Bear Creek had erred in sending him any homeowners’ association ballots, but that he had voted the ballots only to “protect” himself. The day following this testimony, however, Edwards executed a proxy with respect to the Bear Creek election for three members of the board of directors, and cast 24 ballots (three for each unit of his property) in that election. Edwards did not deny sending the proxy, but testified that he had immediately sent a revocation of the proxy “[t]o the same man I sent the proxy to.”

In December 1998, Edwards executed a deed of trust on the property in favor of attorney Enriquez; this transaction was to secure payment of Enriquez’s attorney fees in representing Edwards in various matters concerning the property; Edwards had encountered numerous difficulties in getting the property ready to develop. Among other things, he learned after he had acquired the property that tax assessments were delinquent.

Edwards gave evidence that he and attorney Enriquez had had difficulty gaining access to the Bear Creek development, a gated community. Edwards spoke to an onsite employee to apply for vehicle stickers for his and Enriquez’s cars. In the vehicle permit application, Edwards requested that stickers for his and his wife’s cars be mailed to his business address. He testified that he duly received the vehicle permits, and never thought to do anything else about changing his record address with the property manager.

In any event, Bear Creek charged assessments and sent notices for these assessments to Edwards at attorney Enriquez’s address. Edwards disputed the legality of the assessments, inasmuch as there were no built-out structures corresponding to units 9-16 of CCV Phase IV. Bear Creek sent notices of delinquency, filed lis pendens until its lien could be established, and filed the instant action for, among other things, judicial foreclosure, foreclosure of an equitable lien, and breach of contract. Edwards answered on October 13, 2000. (Edwards also filed a cross-action which was later dismissed as to Bear Creek — as a sanction for discovery abuses — and apparently transferred to a different court to be consolidated with a different action involving different parties. The cross-complaint is not in issue on this appeal.)

After considerably protracted and contentious pretrial proceedings, trial began on May 27, 2003. The court exercised its discretion to try the equitable issues and questions of law first, to the court, reserving jury trial for the common law issues, if any remained.

The trial proceeded normally for the first two days. On the third day of trial, attorney Enriquez did not appear. Edwards, who had been traveling with her, reported that Enriquez had suffered chest pains while en route to court that day, and went to the emergency room for evaluation. On the following day, a Friday, Enriquez again did not appear. She sent a letter and a note to the court by fax, after normal business hours. The note stated that Enriquez was placed on a 60-day medical leave for further evaluation, but the note was not signed under oath and gave no details of Enriquez’s medical condition.

The following Monday, June 2, 2003, the court ordered attorney Enriquez to appear by June 5, 2003, or to submit a sworn declaration of a physician explaining why Enriquez had failed to appear in court. Enriquez instead filed a request for a continuance of the trial for 60 days for claimed medical disability. Enriquez [343] averred that she was completely debilitated and could not “function in day to day activities.” She also appended a doctor’s letter which stated only vaguely that Enriquez’s condition was being “worked-up,” and that “[d]epending on the outcome of the work-up, she may return to work prior to or after the estimated sixty-days period.” This letter was unsworn and provided no intelligible information on Enriquez’s medical condition.

On June 5, 2003, the date set to resume trial, neither attorney Enriquez nor Edwards appeared. The court therefore ordered a postponement of the trial until July 30, 2003 (approximately 60 days from the onset of attorney Enriquez’s alleged medical disability). The order advised both Enriquez and Edwards that, if Enriquez was medically unable to resume trial on July 30, 2003, Edwards should be prepared to go forward with new counsel; the 60-day continuance should afford Edwards sufficient time for new counsel to prepare to proceed.

On July 30, 2003, attorney Enriquez again failed to appear. A new attorney, Carter F. Johnston, appeared on Enriquez’s behalf. This time, attorney Enriquez averred that she may have suffered a small stroke four or five days earlier. This claim was supported only by unsworn doctors’ statements, despite the court’s earlier order that Enriquez must present verified evidence of her medical condition, substantiating her incapacity to appear at trial.

Attorney Johnston also claimed that he was unprepared to proceed with the trial on July 30, 2003, despite the court’s express direction to attorney Enriquez to inform her client (Edwards) of the need to proceed without fail on that date, and to obtain new counsel if necessary to do so. The court denied attorney Johnston’s request for a further continuance. The highly unusual circumstances of attorney Enriquez’s absenting herself from court in the midst of trial, without providing verified evidence of any medical disability or incapacity, resulted in an order for sanctions, which has been reviewed in a separate appeal. (Bear Creek Master Association v. Edwards(Sept. 21, 2004, E034591) [nonpub. opn.])

The case then proceeded on July 30 and 31, 2003. The court issued a statement of decision, finding in favor of Bear Creek on both the judicial and equitable foreclosure causes of action. Because no triable issues of fact remained with respect to any alleged breach of contract, the court also granted Bear Creek’s motion for a directed verdict on that cause of action. The court thereupon gave judgment for Bear Creek in the amounts requested. The court further found that Bear Creek was the prevailing party and thus entitled to attorney fees.

Edwards moved for a new trial. This was apparently denied, and Edwards filed a notice of appeal from the judgment.

Bear Creek submitted a motion for attorney fees; Bear Creek then moved to amend the judgment to include both the attorney fees and costs award and an amount previously ordered as sanctions. The court signed the judgment as amended.

Bear Creek then objected to the amount of the undertaking Edwards had posted before taking an appeal; inasmuch as the judgment had been substantially increased by the addition of the attorney fees and costs award, Bear Creek asked the court to order Edwards to provide an increased undertaking on appeal. The court found that the undertaking already deposited was insufficient, in light of the amounts added to the judgment for attorney fees and costs, and ordered Edwards to deposit [344] additional funds for the undertaking on appeal. Edwards filed a second notice of appeal, encompassing the award of attorney fees and costs as well as the requirement of an additional undertaking on appeal.

This court eventually consolidated these two appeals.

ANALYSIS

Edwards raises a plethora of issues, some of which are duplicative, and none of which has merit, with only one possible minor exception.

I. Edwards Was Required to Pay Assessments, Notwithstanding the Absence of an Actual Structure on the Property

Edwards’s primary contention throughout the action was that assessments pertain only to a “condominium,” and that a “condominium” must contemplate an actual, existing structure. In the absence of a building or structure, no duty to pay assessments arose under either statutory law or under the Bear Creek CC & R’s. Edwards thus argues, first of all, that the court erred in denying his motion for a directed verdict on all causes of action. He asserts that Bear Creek could not prove an essential element of all the causes of action: to wit, the existence of a “condominium.”

A. The Davis-Stirling Act Defines a “Condominium” as “Space” Described in a Qualifying Instrument

Edwards insists that “[v]acant land is not a condominium.” This claim is based upon a proposed construction of the relevant statutory authority and, to some extent, of the Bear Creek CC & R’s. The construction of both statutes and contractual documents presents questions of law, which we review de novo. (Regents of the University of California v. Superior Court (1999) 20 Cal.4th 509, 531, 85 Cal.Rptr.2d 257, 976 P.2d 808; Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843, 102 Cal.Rptr.2d 468.)

Civil Code section 783 was enacted in 1963. (Stats.1963, ch. 860, § 1, p. 2090.) It defined a condominium as “an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial or commercial building on such real property, such as an apartment, office or store.” (Italics added.) An amendment in 1969 did not alter this language in the statute. (Stats.1969, ch. 275, § 1, p. 624 [amending the description of a possible condominium interest from an “estate for years” to an “estate for years, such as a leasehold or subleasehold”].)

In 1984, however, the definition of a “condominium” was changed considerably. Civil Code section 783 was amended to read: “A condominium is an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space, the boundaries of which are described on a recorded final map, parcel map, condominium plan or other document in sufficient detail to locate all boundaries thereof. The area within such boundaries may be filled with air, earth, or water or any combination thereof and need not be physically attached to the land except by easements for access and, if necessary, support. The description of such space may refer to (i) boundaries described in the recorded final map, parcel map, condominium plan or other document; (ii) physical boundaries, either in existence, or to be constructed, such as walls, floors and ceilings of a structure or portion thereof; (iii) an entire structure containing one or more separate interests [345] in space; or (iv) any combination thereof. The portion of the parcel of real property held in undivided interest may be all of the real property of an existing parcel or lot (except for the separate interests in space) or may include a particular three-dimensional portion thereof, the boundaries of which are described on a recorded final map, parcel map, condominium plan or other document. The area within the boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. A condominium may include in addition a separate interest in other portions of such real property….” (Italics added.) Civil Code section 1350 was amended to reflect that, “As used in this title unless the context otherwise requires: [¶] 1. `Condominium’ means a condominium as defined in Section 783 of the Civil Code. [¶] 2. `Unit’ means the elements of a condominium which are not owned in common with the owners of other condominiums in the project. [¶] 3. `Project’ means the entire parcel of real property divided, or to be divided into condominiums, including all structures thereon. [¶] 4. `Common areas’ means the entire project excepting all units therein granted or reserved….” (Stats.1984, ch. 291, § 2, p. 1518.)

Thus, we see that “condominium” was radically redefined to mean a separate interest in space, within boundaries described by certain qualifying documents. The “space” may consist of air, earth or water, or any combination of these things, so long as the boundaries of that space are adequately described in the proper recorded document. There was no longer any requirement for an existing building or structure as a defining characteristic of a condominium.

In 1985 (effective in 1986), the Legislature enacted the Davis-Stirling Common Interest Development Act (the Davis-Stirling Act). (Stats.1985, ch. 874, § 14, p. 2774.) To accomplish this, the Legislature repealed Civil Code section 783, and enacted a new Civil Code section 783 (Stats.1985, ch. 874, §§ 8, 9, p. 2772), reading as follows: “A condominium is an estate in real property described in subdivision (f) of Section 1351.” In other words, the definition of “condominium” was transferred from Civil Code section 783, to Civil Code section 1351, subdivision (f).

The Legislature also repealed Title 6 of Part 4 of Division 2 of the Civil Code (beginning with § 1350), and enacted replacement provisions (the Davis-Stirling Common Interest Development Act). New Civil Code section 1351, subdivision (f), defines a condominium as: “an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. The description of the unit may refer to (1) boundaries described in the recorded final map, parcel map, or condominium plan, (2) physical boundaries, either in existence, or to be constructed, such as walls, floors, and ceilings of a structure or any portion thereof, (3) an entire structure containing one or more units, or (4) any combination thereof. The portion or portions of the real property held in undivided interest may be all of the real property, except for the separate interests, or may include a particular three-dimensional portion thereof, the boundaries of which are described on a recorded [346] final map, parcel map, or condominium plan. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support….”

This definition of a “condominium,” derived from former Civil Code section 783, as amended in 1984, carried forward the changed description of a condominium, so that it no longer required the existence of a structure or building.

B. Civil Code Section 1646 Is Inapplicable

Edwards relies on the original definition of condominium, as set forth in the pre-1984 versions of Civil Code section 783. He strenuously argues that that definition requires a “condominium” to consist of a structure or building. Edwards further argues that, pursuant to Civil Code section 1646, contracts — here, the Bear Creek CC & R’s — must be construed according to the law and usage “of the place” where the contract was made.[FN.1] This “place,” Edwards maintains, is pre-1984 California; thus, the term “condominium,” according to the “law and usage” of California before 1984 must be construed to require an actual structure. The Bear Creek CC & R’s were created before 1984, and should therefore be subject to the pre-1984 definition in Civil Code section 783.

Edwards’s reliance on Civil Code section 1646 is misplaced. He is attempting to import a “law of time” rather than a “law of place” into the CC & R’s as a contract or instrument. Whether pre- or post-amendment law is applied, the CC & R’s properly apply the law of place where the contract was created or intended to be performed: i.e., California. Civil Code section 1646 is irrelevant to the question whether the new definition of “condominium” under California law applies to the Bear Creek CC & R’s.

C. The New Definition of a “Condominium,” Not Requiring a Structure, Applies to Edwards’s Property

The Davis-Stirling Act by its own terms applies to all common interest developments, even those that were created before the Act was adopted. (Civ.Code, § 1352; Villa de las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81, fn. 2, 14 Cal.Rptr.3d 67, 90 P.3d 1223.; Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 378, fn. 8, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) Civil Code section 1352 states in relevant part: “This title applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is, or has been, conveyed….” (Italics added.)

Edwards attempts to avoid the application of the Davis-Stirling Act to his property by arguing that he acquired no fee simple estates in the deed by which he took title to units 9-16 of CCV Phase IV. He contends that the Trust owns an “undivided parcel of land [which] has not yet been divided into separate interests.” Thus, Edwards contends, the trust does not own any “condominiums,” defined as consisting both of an “undivided interest in common in a portion of real property,” [347] together with “a separate interest in space….” (Civ.Code, § 783.)

Edwards’s argument is disingenuous. The deed by which the Trust received title recites that the property received does qualify as a “condominium” — eight of them, in fact — consisting of both an “undivided interest” in common areas and a fee simple interest in a condominium unit.

Edwards’s deed conveyed an “undivided 8/16th fractional interest” in the common areas of “lots 1 and 2 of Tract Map 20829, in the County of Riverside, State of California, as per map recorded in Book 161, pages 3 through 4, inclusive, of Maps, in the Office of the County Recorder of said County.” The undivided (common) interest in lots 1 and 2 of Tract Map 20829 specifically excluded, “all living units and garages shown upon Country Club Villas-Phase 4 Condominium Plan recorded in the Office of the County Recorder of Riverside County, California on September 9, 1986 as Instrument No. 219590.” (Italics added.) In other words, the “undivided interest” conveyed in lots 1 and 2 of Tract Map 20829 included common areas and excluded the condominium units themselves, which were to be owned exclusively by their owners/occupiers: i.e., the fee simple portion of the condominium unit.

Edwards purchased eight such condominium units: units 9 through 16, with the exclusive right to use, possess and occupy those units. That Edwards owns more than one unit does not detract from Edwards’s exclusive right, in fee simple, to occupy the living unit and garage areas for units 9 through 16, as described on the CCV Phase IV condominium plan. Indeed, there would be utterly no point in describing Edwards’s title to “Living unit and garage Nos. 9 through 16 as shown upon the condominium plan,” if the deed did not convey a fee simple interest in those condominium units.

Edwards’s argument that the land itself is “undivided,” is an example of the logical fallacy of “equivocation,” in which he has shifted the meaning of the word. The “undivided interest” conveyed in the deed is ownership, held in common with all the other owners in lots 1 and 2 of Tract Map 20829, to the common areas in lots 1 and 2. The condominium areas—the living units and garages as described in the condominium plan — are specifically excluded from the description of Edwards’s “undivided interest.” That Edwards has not sold any individual units — whether constructed or not — is wholly irrelevant to the existence of both an undivided (common) interest and a fee simple (exclusive) interest, which comprise a condominium. The eight units Edwards acquired meet the statutory definition of a “condominium” under the Davis-Stirling Act, inasmuch as they are specifically described in a qualifying condominium plan, the CCV Phase IV plan as described in Edwards’s deed. Edwards has failed to demonstrate that the Davis-Stirling Act does not apply to his condominium units.

D. Edwards Was Not Entitled to a Directed Verdict

Inasmuch as we have concluded that the Davis-Stirling Act, and its definition of a “condominium,” applied to Edwards’s property, we necessarily also conclude, as did the trial court, that Edwards owns eight “condominiums.” In light of this conclusion, we categorically reject Edwards’s initial contention, that the trial court erred in denying a motion for directed verdict, premised on the notion that Bear Creek could not prove the existence of any “condominiums” for which assessments were payable. Bear Creek did prove the existence of eight condominiums; Edwards was not entitled to a directed verdict.

[348] E. Edwards Had a Duty to Pay Assessments

Under both the Davis-Stirling Act and the Bear Creek CC & R’s, assessments become due upon all units in a phase after the first unit in a phase has sold. The evidence at trial was uncontradicted that the first unit in CCV Phase IV sold no later than 1986, long before Edwards acquired his units. This event triggered the duty of each owner of a unit in that phase to pay assessments. The CC & R’s declared, “The Annual Assessments … shall commence as to all lots (including those owned by Declarant) on the first day of the month following the conveyance of the first lot by Declarant to an individual Owner; provided however, that annual assessments shall commence for all Lots located within a phase of the Properties which has been annexed hereto on the first day of the month following the conveyance of the first lot in such phase by Declarant to an individual Owner….” CCV Phase IV had been annexed into the Bear Creek master development in August of 1986.

The evidence was therefore without dispute that the triggering events — annexation and first sale of a lot to an individual owner — had taken place with respect to CCV Phase IV. Thereafter, Bear Creek at all times charged annual assessments against each unit in CCV Phase IV, whether or not the unit had been built out.

Edwards owned eight units in CCV Phase IV. Edwards therefore owed a duty under both the Davis-Stirling Act and the Bear Creek CC & R’s to pay those assessments, regardless of the absence of an actual condominium structure or building. The definition of a “condominium” as a unit of “space,” which “space” may consist of air, water or earth, in no wise requires an actual structure or building; rather, it requires a specific description in a particular kind of qualifying recorded instrument. Such an instrument (condominium plan) exists here. As a matter of law, based upon statutory construction, interpretation of the written CC & R’s, and undisputed facts, the Trust owed a duty to pay assessments to Bear Creek for each of the eight condominium units it owned.

F. Edwards Failed to Pay Any Assessments

The evidence was undisputed that the Trust at all times failed and refused to pay any assessments for any of its condominium units. The evidence was further undisputed as to the amounts of the regular assessments charged and which remained unpaid. As a matter of law, therefore, Bear Creek had demonstrated that Edwards owed a duty to pay assessments and had failed to do so. Bear Creek was therefore entitled to pursue its enforcement remedies under the CC & R’s.

II. Bear Creek Properly Gave Notice of Its Liens

Edwards next complains that Bear Creek failed to comply with the statutory notice requirements for filing its liens against Edwards’s lots.

A. Notice Was Given to the Owner at the Owner’s Designated Address

More specifically, Edwards argues that Bear Creek “never complied with notice requirements to Edwards, the only person entitled to notice.” He contends that the notices sent to him at attorney Enriquez’s address were of no effect, because he never designated her as his agent; he further asserts that Bear Creek should not have been permitted to present evidence on the issue of agency, because that issue was not specifically alleged in Bear Creek’s complaint.

[349] 1. Notice Was Mailed to Edwards (the Owner) at the Address Selected by Both Edwards and His Attorney

The claim that Edwards did not receive proper notice is disingenuous. Attorney Enriquez’s address was the address listed on Edwards’s title deed to the property. Bear Creek consistently sent information, mailings, requests and notices to Edwards at attorney Enriquez’s address. Attorney Enriquez consistently responded, on Edwards’s behalf, to these mailings, requests and notices.

For example, Bear Creek first sent notice of the overdue assessments to Edwards(i.e., to “Edward Trust” [sic] — the record owner — by name), in care of attorney Enriquez, on February 27, 1998. Attorney Enriquez, using her own letterhead, replied on behalf of Edwards, advising Bear Creek that Edwards “dispute[d] [the] `Notice of Past Due Assessments,'” on the bases both that Edwards had never received an initial statement concerning assessments on the property, and that there were no structures on the property. Notably, attorney Enriquez’s correspondence did not advise Bear Creek to use any other address to contact Edwards. Attorney Enriquez also responded on Edwards’s behalf in several other instances, and the Edwardses themselves never made any written request to have Bear Creek’s correspondence sent to them at any other address.

The only exception was Edwards’s request to an unknown person at the gate kiosk for parking decals; the decals were duly sent to his business address. Otherwise, however, Edwards took no steps to prevent Bear Creek from sending its correspondence to him at attorney Enriquez’s address. Indeed, Bear Creek sent ballots to Edwards at attorney Enriquez’s address, which ballots Edwards then personally cast. As to one set of eight ballots, Edwards himself filled in attorney Enriquez’s address as the owner’s address in the space provided on each ballot. On another set of eight ballots, he again wrote in attorney Enriquez’s address as the owner’s address on six of the eight ballots (two ballots left the owner’s address space blank). Edwards himself therefore consistently designated attorney Enriquez’s address as the proper mailing address for the Trust, the property owner.

Edwards testified at trial that he had voted the ballots — giving attorney Enriquez’s address as the “owner’s” mailing address — in error, or that he had done so only to “protect” his rights. A mere two days after giving this testimony, however, he executed a proxy for each of his eight units, to cast three ballots per unit, or 24 total votes, in the election of Bear Creek’s Board of Directors. He faxed this proxy to the designated election inspector, who in turn cast the ballots as directed by Edwards’s proxy instructions. The execution of the proxy was wholly inconsistent both with Edwards’s claim that he owned no assessable “units,” and with the assertion that Bear Creek was not entitled to correspond with him at attorney Enriquez’s address. Under Bear Creek’s CC & R’s, only assessable units are entitled to vote in association elections. The notice of the election presumably was not sent to Edwards at any address other than the one Edwards had designated on all the earlier ballots as the Trust’s correspondence address: attorney Enriquez’s address. The proxy was faxed from the same fax number that attorney Enriquez used for her fax communications to and from the court. Edwards attempted to disclaim the proxy, testifying that he had also sent a fax revoking the proxy; he did not say when he sent the revoking fax, however, and the election inspector testified that no such revocation was received before the close of [350] the election. Notably also, Edwards produced no document to substantiate his claim that he had revoked his proxy. (In addition, Edwards’s testimony failed to explain why he had faxed his election proxy in the first place, had he truly believed he had no assessable lots, and thus was not entitled to vote in any Bear Creek elections.)

Civil Code section 1367, subdivision (a), provides in relevant part that, “[b]efore an association may place a lien upon the separate interest of an owner to collect a debt which is past due under this subdivision, the association shall notify the owner in writing by certified mail of the fee and penalty procedures of the association, provide an itemized statement of the charges owed by the owner, including items on the statement which indicate the assessments owed, any late charges and the method of calculation, any attorney’s fees, and the collection practices used by the association, including the right of the association to the reasonable costs of collection….” (Italics added.)

Manifestly, Bear Creek complied with this requirement. The notice was sent by certified mail to the owner at the address consistently used by the owner and the owner’s attorney. Attorney Enriquez refused to sign the certified mail receipts, and the lien notices were returned to Bear Creek. Bear Creek had also sent the lien notices by first class mail, however, and none of the first class mail envelopes were returned.

2. Notice Cannot Be Defeated by Willful Failure to Accept Certified Mail

Edwards claims that Bear Creek failed to comply strictly with Civil Code section 1367, arguing that “there is no presumption of notice absent a signed certified receipt,” citing Code of Civil Procedure section 1020. This argument is again disingenuous. Code of Civil Procedure section 1020 provides that, “Any notice required by law, other than those required to be given to a party to an action or to his attorney, the service of which is not governed by the other sections of this chapter and which is not otherwise specifically provided for by law, may be given by sending the same by registered mail with proper postage prepaid addressed to the addressee’s last known address with request for return receipt, and the production of a returned receipt purporting to be signed by the addressee shall create a disputable presumption that such notice was received by the person to whom the notice was required to be sent.”

Code of Civil Procedure section 1020 is permissive; where a notice is required to be sent by mail, compliance with the mailing requirement may be satisfied by sending the notice by registered mail with a return receipt requested. Code of Civil Procedure section 1020 does not require mailed notices to be sent by registered mail. Likewise, while a signed return receipt may create a rebuttable presumption that the notice was received, the absence of such a signed return receipt does not negate any other presumptions concerning mailed items. Under Evidence Code section 641, “[a] letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

Of course, a presumption of receipt is rebutted upon testimony denying receipt. (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 832, fn. 12, 113 Cal.Rptr. 790; accord Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421-422, 100 Cal.Rptr.2d 818.) The presumption of Evidence Code section 641 properly applied here, unless rebutted by a denial of receipt. Attorney Enriquez did not testify, and thus never denied under oath that she [351] had received the lien notices mailed to Edwards at her address. Edwards was in no position to deny receipt of the mail at attorney Enriquez’s address.

Even if we accept for the sake of the argument, however, that the tenor of Edwards’s evidence was the intent to deny receipt of the lien notices, “the disappearance of the presumption does not mean there is insufficient evidence to support the trial court’s finding [i.e., of receipt of notice].” (Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th at p. 421, 100 Cal.Rptr.2d 818, italics in original) “`”[I]f the adverse party denies receipt, the presumption is gone from the case. [But] [t]he trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received.“‘” (Id. at p. 422, 100 Cal.Rptr.2d 818, italics in original.)

Here, the evidence was uncontradicted that Bear Creek mailed the lien notices both by certified mail, as required, and by first class mail. Attorney Enriquez refused to sign for the certified letters, and those letters were returned by the post office. The first class letters were not returned, however. The correspondence from attorney Enriquez, on Edwards’s behalf, plainly demonstrated knowledge of the disputed assessments. The inference is inescapable: attorney Enriquez in fact received all the notices, but simply refused to accept the certified mail.

The requirement to send the lien notices by certified mail cannot be defeated by the simple expedient of refusing to sign the return receipt. “Where a statute provides for service by registered or certified mail, the addressee cannot assert failure of service when he wilfully disregards a notice of certified mail delivered to his address under circumstances where it can reasonably be inferred that the addressee was aware of the nature of the correspondence.” (Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, 655, 120 Cal.Rptr. 827.)

3. The Notice Was Properly Served, Whether Regarded as Served on the Owner or on the Owner’s Agent

That “agency” was not specifically pled is a red herring. First, Edwards consistently designated a certain address as the Trust’s (owner’s) address for correspondence with Bear Creek. That the designated address happened also to be attorney Enriquez’s address does not defeat the evidence that notice was given to the owner at the owner’s designated mailing address.

Second, the evidence also supported the view that Enriquez was Edwards’s agent with respect to any correspondence with Bear Creek. Either Enriquez was Edwards’s actual agent, or she was his ostensible agent. “Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ.Code, § 2317.) Here, all of Edwards’s and Enriquez’s actions intentionally or negligently fostered the belief that Enriquez’s address was the owner’s address for purposes of all correspondence from Bear Creek and that Enriquez was empowered to act on Edwards’s behalf with respect to the CCV Phase IV property and the disputed assessments. As the trial court remarked, “it appears to the court . . . that when it’s convenient to use Miss Enriquez and her address, that’s what they do. And when it is not convenient, then there is a disclaimer that Miss Enriquez has no [sic; any?] authority to act on his behalf. Mr. Edwards . . . will be estopped from making that claim.”

The issue of agency, if any, was not an issue “outside” the pleadings. (Cf. 4 Witkin, [352] Cal. Procedure (4th ed., 1997) Pleading, § 488, p. 579, § 873, p. 330 [“In actions by a principal on a contract made by the agent, that pleading [i.e., the fact of agency] is unnecessary; it is sufficient to allege [the ultimate fact] that plaintiff and defendant entered into the contract”].) The issue to be tried was “notice.” The issue of notice necessarily encompasses evidence of the means by which notice was accomplished. Inasmuch as notice may be accomplished either directly or through an agent, the evidence adduced was within the issues raised by the pleadings.

Edwards was properly served with the lien notices in compliance with Civil Code section 1367.

B. The Court Properly Determined the Amount of the Lien Assessments

In connection with the attack on the propriety of the lien notice, Edwards asserts that the amount of the lien must be limited to the amount initially stated in the notice; in other words, Edwards argues that no “recurring liens” are authorized under Civil Code section 1367, and that Bear Creek’s recovery must therefore be limited to the amount stated in the initial lien notice, or $484.54 per lot. (We note, as an aside, that each of the notices actually specified $587.08 as the amount of delinquent assessments; together with costs, $879.58 was the amount sought per lot for unpaid assessments, to the date of notice.)

We are not persuaded. Civil Code section 1367, subdivision (b), provides in relevant part, “The amount of the assessment, plus any costs of collection, late charges, and interest assessed in accordance with Section 1366, shall be a lien on the owner’s interest in the common interest development from and after the time the association causes to be recorded with the county recorder of the county in which the separate interest is located, a notice of delinquent assessment. . . .” [Italics added.]

Civil Code section 1366, in turn, refers to provisions for assessments in an association’s “governing documents,” such as the Bear Creek CC & R’s. Article V, Section 11(b), of the Bear Creek CC & R’s provides that a lien includes: “[t]he total amount claimed to be due and owing for the amount of delinquency, interest thereon, collection costs, and estimated attorneys’ fees.” It further provides that “any demand or claim of lien or lien on account of prior delinquencies shall be deemed to include subsequent delinquencies and amounts due on account thereof.” (Italics added.) The recorded lien notices, also mailed to Edwards, included the statement that, “[a]dditional monies shall accrue under this claim at the rate of the claimants’ regular monthly or special assessments, plus permissible late charges, costs of collection and interest, accruing subsequent to the date of this notice.”

As Bear Creek observes, all of the sums included on the liens and lien notices are authorized by the CC & R’s and statutory law. The amounts here determined by the court to be owing as liens are no more than the amounts authorized by the governing documents and statutes.

Pursuant to Civil Code section 1366, subdivision (a), “[c]ondominium homeowners associations must assess fees on the individual owners in order to maintain the complexes.” (Park Place Estates Homeowners Assn. v. Naber (1994) 29 Cal.App.4th 427, 431-432, 35 Cal.Rptr.2d 51, italics original.) Those fees are statutorily prescribed to be “a debt of the owner . . . at the time the assessment . . . [is] levied.” (Civ.Code, § 1367, subd. (a).) “These statutory provisions reflect the Legislature’s recognition of the importance of assessments to the proper functioning of condominiums in this state. Because homeowners associations would cease to exist without regular payment of assessment [353] fees, the Legislature has created procedures for associations to quickly and efficiently seek relief against a nonpaying owner.” (Park Place Estates Homeowners Assn. v. Naber, supra, 29 Cal.App.4th at p. 432, 35 Cal.Rptr.2d 51, italics added.)

Were the relevant provisions to be construed as Edwards suggests, the described statutory purpose of providing for a quick and efficient means of enforcing the CC & R’s would be seriously undermined; each month, or at such other intervals as the assessments are charged under a given set of CC & R’s, the association would be required to record successive liens. A successive recordation requirement would impose a heavy — and needless — burden upon homeowners’ associations, fraught with risk to the association, and undue windfall to the delinquent homeowner, should any installment be overlooked. We are unwilling to construe Civil Code section 1367 to require such an oppressive burden. Both delinquent homeowners and the public at large are placed on notice, with the recordation of the initial assessment lien, that subsequent regularly and specially levied assessments, if they continue unpaid, will accrue in due course. The purpose of the lien notice and recordation will have been served, and the association’s remedy justly preserved, by the initial recordation of lien.

Inasmuch, also, as Edwards has admitted that the assessments, charges, and other moneys due and owing under the CC & R’s have never been paid, we find no error in the court’s determination of the amounts due.

III.-VI.[FN.**]

DISPOSITION

The trial court is ordered to strike from its statement of decision the findings that Bear Creek was not guilty of unclean hands or fraud. The amendment to the statement of decision in no wise affects the validity of the judgment, however. The judgment is in all respects affirmed. The appeal from the postjudgment order setting the amount of the security deposit on appeal is moot. Costs on appeal are awarded to Bear Creek as the prevailing party on appeal.

McKINSTER Acting P.J., and KING, J., concur.

___________________________________________________________________________

[FN.*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts III, IV, V and VI.

[FN.1] Civil Code section 1646 states: “LAW OF PLACE. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.”

[FN.**] See footnote *, ante.

Alpert v. Villa Romano Homeowners Association

(2000) 96 Cal.Rptr.2d364

[Maintenance; Duty of Care] HOA’s responsibility with respect to maintenance and repair of sidewalks adjacent to HOA’s property.

Law Offices of Steven M. Klugman and Steven M. Klugman, Los Angeles, for Plaintiff and Appellant.
Early, Maslach, Price & Baukol and James Grafton Randall, Los Angeles, for Defendant and Respondent,

GOODMAN, J.[FN.*]

Ann Alpert (Alpert) appeals from the judgment of nonsuit entered in favor of respondent Villa Romano Homeowners Association (VRHA) at the close of Alpert’s case-in-chief. Alpert’s complaint alleged that she suffered severe injuries when she tripped and fell on the upturned and broken sidewalk adjacent to the condominium complex managed by VRHA.[FN.1] In this appeal [368] Alpert asks that we determine if the owner and possessor of property owes a duty to warn or protect pedestrians from allegedly dangerous conditions known to be present. We conclude that there is such a duty and that the trial court erred in granting the defense motion for nonsuit made at the close of Alpert’s case-in-chief.

FACTUAL AND PROCEDURAL HISTORY

In the late morning of July 27, 1992, Alpert, then 69 and in good health, took her four-year-old dog, BJ, a poodle weighing approximately eight pounds, for a walk near her home in Marina del Rey. She had BJ on a leash. Alpert walked her dog several times a day, but had never fallen before while walking him. This day, on the way home, she passed in front of the VRHA condominium property (the property), which is near the condominium complex in which she resided. The weather was dry and clear; the summer sun was overhead. Alpert’s walk ended when one of her feet came in contact with an upturned, jagged piece of sidewalk, causing her to lose her balance and fall, face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk.

The fall knocked the wind out of her. In the fall, Alpert fractured her right wrist, fractured and lacerated her left knee, broke her fourth and fifth ribs, and sustained a large hematoma in the area of her right breast. She sought medical attention for her injuries, eventually having surgery to repair her left knee. During her recovery from the fall, she contracted pneumonia. At the time of trial, she was unable to walk more than a block without pain, and was using a wheelchair to go longer distances.

Luz Enriquez (Enriquez) had been the gardener for VRHA for 20 years. He worked at the property three times each week. In addition to performing gardening services in the area of the property between the condominium buildings and the sidewalk, including the lawn, which he routinely mowed, he did similar work in the area between the sidewalk and the curb. He routinely removed leaves and other debris from the sidewalk, including removing such material that accumulated from time to time in the crack at the location of the upturned sidewalk. He also watered the vegetation on both sides of the sidewalk, utilizing the sprinklers which VRHA had installed in both areas. Enriquez was aware of the break in the sidewalk and recalled that it had been there for a few years prior to the date of Alpert’s fall.

Bernardo Segala had been hired by VRHA to trim trees on its property. During the year 1992 and prior to Alpert’s fall, at the request of VRHA he trimmed trees on the lawn between the sidewalk and the condominium property and on the portion of the lawn between the sidewalk and the street.

John Pettijohn, who had expertise in concrete repairs, measured the difference in elevation caused by the break in the sidewalk at the scene of the fall at between three-fourths of an inch and one inch.

Elihu Crane, a resident of VRHA, was a member of its board of directors from 1990 through April 1992, and president of its board of directors for part of that time. During that two-year period there was no [369] person or committee of the board which had responsibility for inspecting the sidewalk in front of the property. VRHA’s view was that the City of Los Angeles (the city) controlled the sidewalks and all VRHA needed to do was to keep the sidewalk clean.

Judith Crane was in charge of the gardening committee of the VRHA. She inspected the property shortly after becoming chairman of that committee in the summer of 1992. She had been aware for some time of the existence of cracks in the sidewalk in the area in which Alpert fell and of other cracks in the sidewalk which ran along the property.

Dr. Stephen Wexler, a licensed civil engineer and licensed general contractor, testified as an expert witness at Alpert’s request. Dr. Wexler had experience in building concrete structures, including sidewalks, and in landscaping for the projects he built. Dr. Wexler also had expertise in determining the cause of sidewalk damage from root structures and root growth and expertise regarding human factors in relation to premises liability. Dr. Wexler inspected the scene of the fall on several occasions. He observed that there was mature vegetation on the property, including pine trees (some of which were 100 feet tall) between the sidewalk and buildings on the property, and bottlebrush trees in the area between the sidewalk and the street curb. In his opinion, the root of a pine tree had caused the sidewalk to be uplifted and to break. This opinion was confirmed by his observation of 15 to 20 sidewalk cracks in the area, of which seven or eight had caused serious distortions in the sidewalk in the form of uplifted panels of concrete or of cracks in panels which had been uplifted. There was a second such root-caused cracking and tilting within 15 feet of the scene of Alpert’s fall. He had observed that roots of pine trees can grow in length to be as much as four times the height of the tree itself. He explained that tree roots seek out the area under the sidewalk because water tends to collect there. He noted that the sprinklers at the property water the sidewalk as well as the lawn and other vegetation.

In Dr. Wexler’s opinion, the sidewalk defect at the location of Alpert’s fall had existed for years prior to the fall and had been caused by the progressive growth of a subterranean tree root under the sidewalk. He noted that the area of greatest angular uplift in the sidewalk was adjacent to the lawn, indicating in his opinion that the root that caused the uplift had come from a tree growing on the lawn as the root sought moisture. He explained that roots taper down in size the farther from the tree they grow. It was also his opinion that the growth of the trees and their root systems had been enhanced by the fertilizing, watering, and trimming of the trees, which VRHA had done on its property. Further, the roots remained near the surface due to the very hard-packed soil in the area, thus increasing the likelihood of cracking the sidewalk.

On cross-examination, Dr. Wexler testified that it was unlikely that the root that had caused the sidewalk at the point of Alpert’s fall to be upturned and to break had come from a tree in the area between the sidewalk and the street as roots of the bottlebrush trees planted in that area were smaller than those of the pine trees. Rather, it was his opinion that the root which had caused the sidewalk defect had come from a tree growing on the main lawn.

At the conclusion of Alpert’s case-in-chief, VRHA made a written motion for nonsuit. During argument on that motion, [370] Alpert’s motion for leave to reopen was denied. The court granted the motion for nonsuit, after which Alpert filed a timely appeal.[FN.2]

CONTENTIONS ON APPEAL

Alpert contends the trial court erred (1) in concluding that VRHA, as owner of the property, owed Alpert no duty of care, (2) in refusing to permit Alpert to reopen to cure any defect that resulted in the nonsuit, (3) in refusing to permit Alpert to make offers of proof of certain evidentiary matters, and (4) by excluding evidence of knowledge of the condition of the sidewalk prior to the fall on the part of the board of directors of VRHA.[FN.3]

DISCUSSION

  1. Standard of review.

In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiffs case-in-chief (Code Civ. Proc, § 581c),[FN.4] the appellate court reviews the entire record of the trial court (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581, 47 Cal. Rptr.2d 752) and views the evidence in the light most favorable to appellant. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799, 226 Cal.Rptr. 515.) We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. (La-Monte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) “`”The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”‘”[FN.5] (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799, 226 Cal.Rptr. 515.)

This healthy skepticism of removing factual questions from juries is inextricably bound to the California Constitution, which preserves “inviolate” the right to trial by jury.[FN.6]

[371] 2. The trial court’s ruling.

At the conclusion of Alpert’s case-in-chief, VRHA presented a written motion for nonsuit to the court and counsel.[FN.7] Such a motion has the effect of a demurrer to the evidence: It concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiffs case. (See Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 98, 253 Cal.Rptr. 470.) A judgment of nonsuit is an involuntary dismissal (Costa v. Regents of University of Cal. (1951) 103 Cal.App.2d 491, 494, 103 Cal.App.2d 491) on a motion by a defendant who contends the plaintiff is unable to prove its case at trial (Doria v. International Union (1961) 196 Cal. App.2d 22, 32, 16 Cal.Rptr. 429). In reviewing a judgment of nonsuit, we look at the entire record. (Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1581, 47 Cal.Rptr.2d 752.) We consider grounds which were both advanced by the moving party and ruled on by the trial court.[FN.8]

[372] The record in this case clearly shows that the trial court weighed the evidence and erred as to the applicable law. Thus, the trial court stated: “Dr. Wexler testified that he was not sure where the roots came from which caused the elevation…. [A]nd the law seems to indicate that the ambit of liability does not include the abutting land owners but includes the city for — the city owing the duty to the third person….”

This selection from the record by the trial court was inapposite. The record reveals substantial testimony by Alpert’s expert witness different from that relied on by the trial court and quoted above; testimony which, when viewed in accordance with principles applicable to motions for nonsuit, provides factual support for Alpert’s legal contentions substantial enough to withstand such a motion. Thus, Dr. Wexler testified that the cause of the uplifted and cracked sidewalk was the root of a tree growing on VRHA’s property. While he would not rule out the possibility that the particular root came from another location as he had not dug up the lawn all the way to the particular suspected, “mature” pine tree, it was his expert opinion that a tree growing on VRHA’s lawn was the source of the destructive root. He also testified that the trees planted in the area between the sidewalk and the street were of a different type and had characteristically smaller roots. Other witnesses testified to the size of the hazard caused by the uplifted piece of sidewalk which the tree root had created and to VRHA’s prior notice of the hazardous condition of the sidewalk. The trial court did not view the evidence adduced by plaintiff in the manner required when analyzing evidence in ruling on a motion for nonsuit made at the conclusion of a plaintiffs case-in-chief. (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799, 226 Cal.Rptr. 515.)

The other aspect of the trial court’s ruling was its conclusion that VRHA did not owe a duty of care to Alpert. As we next discuss, this ruling was also error.

  1. Whether VRHA owed a duty to pedestrians.

The fundamental legal issue raised by the judgment of nonsuit is whether VRHA as landowner and party in possession and control owed a duty to pedestrians such as Alpert to either warn them of a dangerous condition of the premises or repair it. We will conclude that such a duty was owed under the circumstances present in this case.[FN.9]

a. Authorities prior to Alcaraz v. Vece.

The Legislature and the courts have addressed the responsibilities, if any, of possessors of land abutting sidewalks. We begin our analysis with Civil Code section 1714, subdivision (a), which makes a possessor of land subject to the general negligence standard of that section.

Civil Code section 1714, subdivision (a) provides:

“Every one is responsible, not only for the result of his willful acts, but also for an [373] injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself.”

It is appropriate to depart from this standard only when there are clear public policy reasons for doing so. In making that determination, a court must weigh the following factors: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the proximity of the connection between the defendant’s conduct and the injury sustained, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community from imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian, supra, 69 Cal.2d at pp. 112 — 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others….” (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

In addition to Civil Code section 1714, subdivision (a), the Legislature has enacted Streets and Highways Code section 5610, which provides:

“The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.”

This statute places on the abutting property owner the duty to maintain the sidewalk.[FN.10] This statutory duty has been held not to impose, by itself, a duty of care upon the abutting landowner for the safety of persons using the sidewalk, but rather a duty owed to the city.

Division Seven of this court discussed the relationship of Streets and Highway Code section 5610 to ordinary negligence principles in the course of its opinion in Jones v. Deeter (1984) 152 Cal. App.3d 798, 199 Cal.Rptr. 825 (Jones). There, plaintiff Jones tripped on a break in a sidewalk, allegedly caused by the roots [374] of a tree growing in a parkway maintained by the owner of the adjacent property. The court affirmed the trial court’s grant of summary judgment to the property owner, holding that Streets and Highways Code section 5610 was not the basis of a duty of care to pedestrians unless the sidewalk defect was the result of the owner’s negligence. (Jones, supra, at p. 803, 199 Cal.Rptr. 825.)[FN.11] Under the facts of Jones, any dangerous condition resulting from the trees was attributable to the city as the city had planted and maintained the trees, and the parkway had been formally dedicated to the city by its owner. The court pointed out that the “Sidewalk Accident Decision” doctrine had been developed to distinguish those cases in which the owner of the adjacent property is not to be held liable in tort to users of the sidewalk unless the owner creates the condition that is a cause of the injury. (Ibid.) In Jones, the owner was not held to have a duty to the pedestrian because the city performed the maintenance of the area of the plaintiffs fall.

The Jones court was careful to distinguish the factual situation there presented — in which the offending trees were owned and maintained by the City on a dedicated parkway — from the facts of Moeller v. Fleming (1982) 136 Cal.App.3d 241, 186 Cal.Rptr. 24 (Moeller), in which that court, in reversing a grant of summary judgment, held that an abutting property owner could be held liable if the dangerous condition in a sidewalk had been caused by the roots of a tree owned by that landowner with his knowledge of that condition. (Id. at p. 245, 186 Cal. Rptr. 24.) In Moeller, the offending roots came from a tree on the defendant’s property. In distinguishing Moeller in Jones, Division Seven of this court stated: “This case turns on this distinction.” (Jones, supra, 152 Cal.App.3d at p. 804, 199 Cal. Rptr. 825.)

In Williams v. Foster (1989) 216 Cal. App.3d 510, 265 Cal.Rptr. 15 (Williams), the Court of Appeal reversed a jury verdict in favor of a pedestrian who had been injured when he fell on a public sidewalk which had an uneven surface caused by the roots of a tree planted in a parkway in front of the property owner’s residence. The defendants had moved for nonsuit, which motion the trial court had denied. In reversing the subsequent verdict and ordering that the trial court enter a judgment of nonsuit, the Williams court held that Streets & Highways Code section 5610 was controlling, viz., that the statutory duty placed on adjacent landowners to maintain and repair sidewalks was owed solely to the city and that that statute does not impose liability for injuries incurred by reason of a defect in the sidewalk. (216 Cal.App.3d at p. 521, 265 Cal. Rptr. 15.)

The Williams court did recognize the holding of Sprecher v. Adamson Companies(1981) 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121 (Sprecher), that a landowner may be held liable for negligent [375] failure to correct or control a defect[FN.12] which results in injury to neighboring property. In so holding, our Supreme Court repudiated the common law rule of nonliability for natural conditions of land and held that a possessor’s liability would be determined under ordinary negligence principles. (Williams, supra, 216 Cal. App.3d at p. 519, 265 Cal.Rptr. 15.) In the Williams court’s view, the general negligence liability analysis of Sprecher was not appropriate in the circumstances there presented because the abutting owner in Williams did not own or possess an easement over the area in which the offending roots grew (or other cause arose). (Id. at pp. 520, 521, 265 Cal.Rptr. 15.)

Williams sought to distinguish Jones, criticizing it in the following language: “We fail to see any legal foundation for [the approach that a particular abutting owner could be held liable for failing to maintain the public sidewalk or parkway where abutting owners as a class rather than a city historically had performed sidewalk maintenance] if it is applied to an abutting owner who has not undertaken such maintenance in the absence of a statute or ordinance.” (Williams, supra, 216 Cal.App.3d at p. 521, 265 Cal.Rptr. 15.)

The Williams court did recognize, however, that “[a] possessor or owner of premises is under a duty to others by virtue of that possession or ownership to act reasonably to keep the premises safe and prevent persons from being injured thereby. (See Rowland v. Christian (1968) 69 Cal.2d 108, 111-119, 70 Cal.Rptr. 97, 443 P.2d 561.) Thus, where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it, we see no legal basis for imposing liability for failure to properly maintain the sidewalk or planting strip in the absence of statute or ordinance.” (Williams, supra, 216 Cal.App.3d at p. 521, 265 Cal.Rptr. 15.)[FN.13]

Of particular importance to the Williams court was the absence of any evidence that Foster or his predecessor in interest had planted the trees, or that those trees had caused the sidewalk defect (Williams, supra, 216 Cal.App.3d at pp. 522-523, 265 Cal.Rptr. 15.) Thus, there was no factual basis in Williams to consider or apply the duty analysis and the principles of Rowland v. Christian, supra, 69 Cal.2d. at p. 119, 70 Cal.Rptr. 97, 443 P.2d 56

b. Impact of Alcaraz v. Vece.

Prior to trial in the instant case our Supreme Court had occasion to apply the principles of Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, in a situation analogous in many respects to the instant case. In Alcaraz v. Vece (1997) 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239 (Alcaraz), Alcaraz sued his landlord, the owner of the apartment building in which he resided, for injuries sustained when Alcaraz stepped into an open utility meter box located in the city-owned lawn next to the sidewalk in front of that residence. In affirming the Court of Appeal’s reversal of the grant of summary judgment to the property owner, our Supreme Court held that there was a triable [376] issue of fact as to whether the property owner had exercised control over the area in which the utility box was located even though that area was owned by the city. In our Supreme Court’s view, if the property owner did exercise such control, then it had a duty to warn Alcaraz[FN.14] of the danger, or protect him from that danger.

Citing its decision in Rowland v. Christian, the Supreme Court stated: “`The proper test to be applied to the liability of the possessor of land … is whether in the management of his property [the possessor] has acted as a reasonable man in view of the probability of injury to others….’ (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)” (Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

The court further explained: “This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control.” (Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

We distill from our Supreme Court’s holding in Alcaraz supra, that a landowner or possessor of land has a duty to take reasonable measures to protect persons from dangerous conditions on adjoining land when the landowner or possessor exercises possession or control over that adjacent land. The scope of this duty is to be determined under principles enunciated in Rowland v. Christian, supra. “The proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others….” (69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

c. Indicia of control over the land.

The facts of this case reveal that VRHA had planted and maintained all of the trees and vegetation in the area, on both sides of the sidewalk, had installed sprinklers on both sides of that walkway, and watered and trimmed the trees which grew the roots which caused the sidewalk to be uplifted and crack, presenting the danger which befell Alpert.[FN.15] Further, VRHA had known for approximately two years prior to Alpert’s fall of the condition of the sidewalk at the location of the fall and elsewhere along that path.

Because the area of the injury in Alcaraz was owned by the city and not by the defendant, our Supreme Court was required to consider whether a possessor of land could be held liable under tort principles. Concluding in the affirmative, the court relied on principles enunciated in Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561: The relevant question is not “mere ownership,” but whether the possessor has maintained the property in a reasonably safe condition. (Accord, Alcaraz, supra, 14 Cal.4th at p. 1156, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

[377] In the instant case, the party which had done the things just enumerated and which had prior knowledge of the resulting dangerous condition was in possessor and control of the premises, including but not limited to the sidewalk on which Alpert fell.

d. Application of Alcaraz and other cases.

VRHA contends that Jones does not allow for a duty to be placed on an adjacent landowner to repair or warn under the circumstances presented in this case. VRHA’s reliance on Jones is misplaced. As stated in Jones: “In settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians.” (Jones, supra, 152 Cal.App.3d at p. 805, 199 Cal.Rptr. 825.) The facts of the instant case, unlike those of Jones, show the substantial activities — and responsibility — of the abutting landowner.

Similarly, VRHA’s reliance on Contreras v. Anderson (1997) 59 Cal.App.4th 188, 69 Cal.Rptr.2d 69 (Contreras), is misplaced. In Contreras, the plaintiff slipped on an improperly sloped brick path which led from the street curb to the sidewalk in the front of the defendant homeowners’ residence. The area of the fall was owned by the city and separated from the sidewalk by a five-foot high wooden fence. (Id at p. 192,69 Cal.Rptr.2d 69.) In the course of its de novo review of the summary judgment granted to defendants, the court analyzed Alcaraz, noting that while the defendant inAlcaraz exercised control over the parkway in which the fall had occurred, by contrast, the defendants in Contreras did not own, or have legal possession of the area of the fall (Contreras, supra, at p. 197, 69 Cal.Rptr.2d 69). The Contreras court described the difference: “The city-owned strip [in Alcaraz ] … was contiguous with and indistinguishable from the rest of the defendant’s lawn…. [T]he evidence showed the defendants maintained the entire lawn from the defendants’ property line to the sidewalk, including that portion of the lawn located within the city-owned strip of land, and that, subsequent to the plaintiffs alleged injury, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the two-foot-wide strip owned by the city.” In addition, the Alcaraz court found that the defendants had actual notice of the defect. (Contreras, supra, at p. 197, 69 Cal.Rptr.2d 69.)

The Contreras court characterized the holding in Alcaraz as follows: “The Alcarazcourt concluded that such evidence was ‘sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land … and thus owed a duty of care to protect or warn plaintiff….’ [¶] Nevertheless, it is clear from Alcarazthat simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property.” (Contreras, supra, 59 Cal.App.4th at p. 198, 69 Cal.Rptr.2d 69.) The Contreras court focused also on the fact that the defendants in Alcaraz had constructed a fence around the area. This act “went beyond simple neighborly maintenance and, thus, was sufficient to raise a triable issue of fact as to control. [Citation.]” (Id at p. 199, 69 Cal.Rptr.2d 69.)

By contrast, in Contreras, there “is no such `dramatic assertion of a right normally associated with ownership or … possession’ of the land….” (Id at p. 200, 69 Cal.Rptr.2d 69.) Finally, the Contreras [378] court focused on the fact that the fence in that case had been constructed by the city and that there was no evidence the defendants had knowledge of the hazard. (Id. at p. 201, 69 Cal.Rptr.2d 69.)

The facts of the instant case are substantially different from those presented inContreras. In Contreras, the court found that the adjacent owner had neither possession of, nor control over, the land on which the dangerous condition existed. In the instant case, the adjoining land was owned by VRHA which exercised control over the sidewalk and the area between the sidewalk and the curb. VRHA installed sprinklers, and planted and maintained the trees which Alpert’s expert testified caused the dangerous condition in the sidewalk. Further, VRHA had been aware of the condition of the sidewalk for a substantial period of time prior to the fall (and was in the process of discussing repairs when Alpert fell). In short, there was enough evidence to overcome the motion for nonsuit.[FN.16]

  1. Denial of the request to reopen.

When the trial court indicated it was going to grant the nonsuit, counsel for plaintiff sought leave to reopen. The trial court denied that request.

Alpert’s motion to reopen was timely under the circumstances. Although it was not made the instant the motion for nonsuit was served, it was made in the course of the discussion with the court and the argument of counsel that followed the filing of that motion. In addition, Alpert had previously asked for opportunities to make offers of proof on matters which were relevant to the issues presented in the motion for nonsuit and had been told by the court time would be made available later for such offers. Those requests related to evidence of knowledge by VRHA of the existence of the sidewalk defects at least a month prior to Alpert’s fall. That time never came.

The denial of a request to reopen which is accompanied by an offer of proof of the evidence that will cure the deficiency is reversible error. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 382, 11 Cal. Rptr.2d 524; Eatwell v. Beck, supra, 41 Cal.2d at pp. 133-134, 257 P.2d 643[plaintiffs, who had mistakenly relied on former law regarding damages, were improperly denied leave to introduce evidence to satisfy the current rule].)

The right to present further evidence is waived unless the plaintiff both requests leave to reopen and makes an offer of proof, describing the evidence and explaining how it would cure the deficiencies. (Consolidated World Investments, Inc., v. Lido Preferred Ltd., supra, 9 Cal. App.4th at p. 382, 11 Cal.Rptr.2d 524.) In the instant case, Alpert complied with the rule to the extent possible.

It is important to recognize, however, that even if Alpert had been granted [379] leave to reopen and introduce all of the evidence we have discussed, the trial court would likely still have granted the nonsuit as its legal analysis would have remained unchanged. There does not appear to have been anything in the evidence referenced in the offers of proof which would have changed the legal theory upon which the trial court granted the judgment of nonsuit. On retrial, it appears that the previously excluded evidence may be probative and relevant to the issues in the case.

  1. The trivial defect ruling.

One of the bases of VRHA’s written motion for nonsuit was that the defect in the sidewalk was trivial and thus it was not foreseeable that harm would come to anyone. In its reply brief, VRHA asserts that the trial court in fact rejected VRHA’s argument that the defect was trivial. Because VRHA, in effect, has conceded that the trial court rejected this argument, we need not consider it.[FN.17]

  1. Causation

The final ground for the motion for nonsuit was that Alpert had not established that any defect was caused by a root from VRHA’s property. As we have discussed at length, ante, in reviewing a judgment of nonsuit we view the evidence in the light most favorable to the plaintiff and accept as credible the testimony of the plaintiffs witnesses. (Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1581, 47 Cal.Rptr.2d 752; LaMonte v. Sanwa Bank California, supra, 45 Cal.App.4th at p. 517, 52 Cal.Rptr.2d 861.) Alpert’s expert clearly stated his opinion that the break in the sidewalk was the result of the growth under the sidewalk of a root of one of the pine trees planted on VRHA’s lawn and nurtured by VRHA. For purpose of ruling on a judgment of nonsuit, there was substantial evidence of causation. VRHA’s causation argument is without merit.

  1. Exclusion of evidence of prior knowledge of the condition of the sidewalk contained in the minutes of meetings of VRHA’s board of directors.

There is an evidentiary contention of Alpert which is appropriately resolved on this appeal. Alpert contends the trial court erred in refusing to permit questioning of VRHA board of director and committee members about a discussion at VRHA’s November 1997 board of directors’ meeting. The trial court sustained [380] VRHA’s objections to such questions and to Alpert’s attempt to gain admission of the minutes of that meeting of VRHA’s board of directors. The basis for the objection was that admission of such evidence would violate the subsequent act proscription codified in Evidence Code section 1151. We will determine that the evidence should have been admitted.

Alpert sought admission of the November minutes while questioning the former president of VRHA’s board of directors, Ehihu Crane, about that meeting. During that questioning, Alpert sought to inquire concerning a discussion of bids to repair sidewalk “bumps.” Alpert was specifically interested in references in that discussion and in the minutes of that meeting to the fact that there had been a discussion of the condition of the sidewalk and the need to repair it at a board of directors’ meeting in June of the same year, prior to Alpert’s fall.[FN.18] The trial court sustained objections to introduction of this evidence.

Alpert seeks to overturn those rulings, arguing the evidence is probative of the facts that the sidewalk defect was known to VRHA prior to the fall, the defect was not trivial, its repair was feasible, the defect was caused by tree roots, and VRHA was in control of the cause of the defect as well as of its repair. In arguing that the trial court’s ruling was correct, VRHA contended that the evidence would relate to remedial steps taken after the fall, and is not probative on the points argued by Alpert.

In Alcaraz, supra, 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239, the defendants had objected in the trial court to admission of evidence that they had maintained the area of that fall and that they had built a fence around the parkway where the fall had occurred subsequent to that incident. In making this objection, theAlcaraz defendants argued that the evidence must be excluded under the authority of Evidence Code section 1151 which precludes introduction of evidence of subsequent remedial conduct.[FN.19] In its ruling granting summary judgment to the defense, that trial court had sustained defendants’ objections in this regard.

[381] The Supreme Court expressly rejected these evidentiary rulings, stating, “This evidence [relating to maintenance of the lawn on city-owned property and subsequent construction of a fence in that area] was highly relevant regarding whether defendants exercised control over the strip of land owned by the city.” (Alcaraz, supra, 14 Cal.4th at p. 1166, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

“[W]hether defendants exercised control over the strip of land owned by the city on which the meter box was located is a `disputed fact that is of consequence to the determination of the action.’ [Citation.] Indeed, if defendants exercised control over this strip of land, it appears clear they owed a duty to protect or warn plaintiff.” (Alcaraz, supra, 14 Cal.4th at p. 1167, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

In rejecting the argument that admission of evidence that the defendants later constructed a fence around the area of the fall violated Evidence Code section 1151, the court stated: “This statute does not apply, however, because evidence regarding construction of the fence was admitted, not to prove negligence, but to demonstrate that defendants exercised control over the strip of land owned by the city. As we stated in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118, 117 Cal.Rptr. 812, 528 P.2d 1148, `Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary measures only when such evidence is offered to prove negligence or culpable conduct’ (Italics added; see also Fed. Rules Evid., rule 407, 28 U.S.C., which employs language nearly identical to Evidence Code section 1151 and then explains: `This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.’)” (Alcaraz, supra, 14 Cal.4th at p. 1169, 60 Cal.Rptr.2d 448, 929 P.2d 1239.)

The VRHA minutes were admissible for the purposes sought by Alpert. The proper means to address the concern expressed by VRHA would have been a limiting instruction, advising the jury of the purposes for which they could, and could not, consider the minutes. (See Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555, 85 Cal.Rptr. 308 [evidence that the defendant contractor’s carpenters installed handrails at the point where the plaintiff had fallen after his injury was not admissible to prove negligence of the defendant under Evid.Code, § 1151, but was properly limited and received by the court, on the issues of control of the premises, and of whose duty it was under the contract to take such safety measures].) Similarly, in Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 46 Cal. Rptr. 421, the court held that subsequent remedial conduct cannot be considered on the issue of liability, but “is relevant and admissible [on the issues of scope of duty] [citation] and also on the possibility or feasibility of eliminating the cause of the accident. [Citations.]”[FN.20] (Baldwin Contracting, at p. 573, 46 Cal.Rptr. 421.)

In the present case, the minutes of the November board meeting confirm VRHA’s knowledge of the sidewalk defect prior to Alpert’s fall, VRHA’s discussions regarding [382] repair, its control over the area at issue, as well as other facts that were in dispute in the litigation. The trial court erred in refusing to admit the minutes and in sustaining objections to questions of witnesses in the same areas.[FN.21] As our Supreme Court stated in Alcaraz, such evidence “would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff.” (Alcaraz, supra, 14 Cal.4th at p. 1170, 60 Cal. Rptr.2d 448, 929 P.2d 1239.)

DISPOSITION

The judgment of nonsuit is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appellant shall recover her costs on appeal.

BOREN, P.J., and NOTT, J., concur.

[FN.*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[FN.1] Alpert had alleged causes of action against the City of Los Angeles and County of Los Angeles as well as VRHA. The claims against the governmental entity defendants were resolved prior to trial. The County of Los Angeles was dismissed; a good faith settlement was entered with the City of Los Angeles.

[FN.2] We construe the dismissal of the jury upon the granting of the motion for nonsuit as a termination of the action as to all defendants. It is proper, therefore, to treat the appeal as an appeal from the judgment which necessarily followed. (See Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 153, 144 Cal.Rptr. 794; Graski v. Clothier (1969) 273 Cal.App.2d 605, 607, 78 Cal.Rptr. 447.)

[FN.3] Alpert also sought review of the trial court’s refusal to permit a representative of the City of Los Angeles to testify. Resolution of that evidentiary matter is not necessary on this appeal. We make further reference to this matter in footnote 10, post.

[FN.4] At the time of trial in this matter, Code of Civil Procedure section 581c, subdivision (a) provided:

“After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.”

The section was amended in 1998 (Stats. 1998, ch. 200, § 1) in a technical manner not relevant to the instant case.

[FN.5] VRHA correctly points out that the doctrine that a scintilla of evidence creates a sufficient evidentiary basis to reverse a judgment of nonsuit has been rejected. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 420, p. 481.) While that is a correct statement of the law, factually Alpert overcame that threshold for reasons we discuss in the text.

[FN.6] California Constitution, article I, section 16 provides, in part:

“Trial by jury is an inviolate right and shall be secured to all….”

This right extends to factual questions only; issues of law are triable by the court. (Evid. Code, § 310, subd. (a); Code Civ. Proc., §§ 589, 591, 592.) The right to trial by jury guarantees that right in actions triable by jury at common law, including claims for damages for injuries to persons. (See generally 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 89 et seq.)

[FN.7] In its written motion for judgment of nonsuit, VRHA contended that (1) the defect in the sidewalk was trivial as a matter of law, (2) Alpert had failed to establish that the cause of the sidewalk defect was a root growing from VRHA’s property, and (3) VRHA owed no duty to pedestrians such as Alpert, but only to the City of Los Angeles, under Streets and Highways Code section 5610.

[FN.8] There is a split of authority over whether we may consider grounds argued by the defendant, but not relied upon by the trial court, in granting the motion. Some Courts of Appeal, including this division, have held that appellate review is limited to those grounds relied upon by the trial court, the theory being that we only need examine those grounds which a plaintiff may have been able to correct had they been called to its attention (e.g., DeVaughn Peace, M.D., Inc. v. St. Francis Medical Center (1994) 28 Cal.App.4th> 454, 459, 33 Cal.Rptr.2d 459; Walker v. Porter (1974) 44 Cal.App.3d 174, 177, 118 Cal.Rptr. 468). Other courts have taken the view that a judgment of nonsuit can be sustained on any ground specified in the motion, even if not relied upon by the trial court (e.g.,Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542, fn. 2, 50 Cal.Rptr.2d 395, and cases there discussed). See also Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1809, fn. 7, 59 Cal.Rptr.2d 59.

The source of this debate is the following language from Lawless v. Calaway (1944) 24 Cal.2d 81, 147 P.2d 604 (Lawless): “The correct rule is that grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion. This rule is complementary to the requirement that a party specify the grounds upon which his motion for nonsuit is based.” (Id. at p. 94, 147 P.2d 604; accord, Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 868, 86 Cal.Rptr. 359.) The rationale for Lawless is that, on a motion for nonsuit, the plaintiff is to be given the opportunity to cure the defect in its case. To this end, the court is required to hear offers of proof and grant a motion to reopen if timely made. (Eatwell v. Beck (1953) 41 Cal.2d 128, 133, 257 P.2d 643[one of the chief objects of a nonsuit motion is to point out to plaintiff the defects in its case so that they may be remedied and the case decided on its merits].)

The articulation of the Lawless rule has not prevented the split of authorities as discussed above: whether, on review of a judgment of nonsuit, the appellate court looks only at the reason or reasons stated by the trial judge in granting the motion, or at any reason advanced by the moving party in the trial court. In either situation, the appellate court looks also at the problem of legal preclusion — whether, as a matter of law, there is no basis for the plaintiff’s claim. In such a circumstance, affirmance of the judgment of nonsuit is appropriate even if that ground was not advanced below. It is the issue of legal preclusion that was the principal focus of the trial court in reaching its ruling below.

[FN.9] As indicated in this opinion, the existence of a duty of care is a matter of law. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678, 25 Cal.Rptr.2d 137, 863 P.2d 207; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125, 211 Cal.Rptr. 356, 695 P.2d 653.) The foreseeability of a particular plaintiff’s injury is a question of fact. (Isaacs, at p. 126, 211 Cal.Rptr. 356, 695 P.2d 653.) The standard to be applied to determine if the duty has been met is whether the property owner has acted in management of the property as a reasonable person in view of the probability of injury to others. (Rowland v. Christian (1968) 69 Cal.2d 108, 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.) The answer to that question will be determined on retrial.

[FN.10] Streets and Highways Code section 5610 is one of several statutes codifying responsibilities with respect to maintenance and repair of sidewalks. Section 5611 gives to the superintendent of streets the authority to notify the abutting owner of the need to repair the sidewalk. Section 5615 provides that the superintendent of streets may repair the sidewalk if the abutting owner does not and assess that cost to the abutting owner. That amount may result in a lien against the property. (Sts. & Hy.Code, § 5625 et seq.)

In this case, Alpert’s attempt to introduce evidence regarding the absence of notice to the city concerning defects in the sidewalk was rejected. Alpert did give timely notice of intention to call the witness through whose testimony this and other matters were to be established. Whether the witness was competent to testify to all of the subjects which Alpert indicated in her offer of proof is a matter for consideration by the trial court in the course of proceedings on the retrial.

[FN.11] As we discuss in the text, Streets and Highway Code section 5610 establishes the rule that the owner of the property adjoining the sidewalk has a duty to maintain it. This is a statutory exception to the general rule that the owner of the easement (typically, the local municipality) has the duty to maintain the easement.

While section 5610 places the duty to maintain and repair defects in the sidewalk on the abutting landowner, the “Sidewalk Accident Decision” doctrine provides that that duty is not owed to persons who use the sidewalk unless the abutting landowner somehow causes the dangerous condition of the sidewalk. (Schaefer v. Lenahan (1944) 63 Cal. App.2d 324, 326, 146 P.2d 929; Jones, supra, 152 Cal.App.3d at p. 803, 199 Cal.Rptr. 825.) Our holding today is consistent with this long-established doctrine.

[FN.12] In Sprecher, supra, 30 Cal.3d at p. 358, 178 Cal.Rptr. 783, 636 P.2d 1121, the defect was a landslide.

[FN.13] The Williams court ultimately reversed the judgment and directed the trial court to enter a judgment of nonsuit for the reason that the evidence was insufficient as a matter of law to sustain a verdict for the plaintiff. (Williams, supra, 216 Cal.App.3d at pp. 522-523, 265 Cal.Rptr. 15.) We reach a different conclusion based both on the facts of this case, which the Williams court suggested might be the basis for such a result, and due to the development in the law subsequent to the decision in Williams.

[FN.14] This duty is owed to Alcaraz and to others, viz., to persons who foreseeably may be in the area, not to Alcaraz due to his status as a tenant of the landowner. (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561; Alcaraz, supra, 14 Cal.4th at pp. 1162-1163, 60 Cal.Rptr.2d 448, 929 P.2d 1239 [duty is not dependent on commercial benefit to landowner].)

[FN.15] As indicated in the text, ante, Alpert’s expert witness was of the opinion that the offending root came from a pine tree growing between the sidewalk and the buildings.

[FN.16] No evidence was presented below of any applicable local ordinances. Whether that will be a factor on retrial in unknown. We note that in Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 272 Cal.Rptr. 544, the court construed statutes applicable in the jurisdiction in which the property at issue in this appeal is located. The issue was framed differently, however, as that defendant had no role in creating the hazard which befell that plaintiff. (Id. at p. 1592, 272 Cal. Rptr. 544.) Nor was any evidence presented regarding the statutory presumptions of Civil Code sections 831 and 1112. (See Jones, supra, 152 Cal.App.3d at pp. 801-802, 199 Cal.Rptr. 825.)

[FN17] This court has had previous opportunities to consider the trivial defect defense. In Ursino v. Big Boy Restaurants of America (1987) 192 Cal.App.3d 394, 237 Cal.Rptr. 413, we sustained a summary judgment in which the trial court had determined that the trivial defect defense was established as a matter of law based on the facts there presented. (Id. at pp. 397-398, 237 Cal.Rptr. 413). In Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 50 Cal.Rptr.2d 8, we upheld a summary judgment in which the trial court had reasoned that “`”reasonable minds [could] come to but one conclusion,”‘” that the design of a staircase at a city convention center posed a minor or trivial risk at most. (Id. at p. 704, 50 Cal.Rptr.2d 8.)

We note that the trial court in the instant case had rejected VRHA’s argument that the trivial risk doctrine applied on the facts presented and that VRHA has conceded this issue in its brief on appeal. Nevertheless, as that defense is fact-specific and there will be a full trial, our opinion should not be construed as other than an indication that the trial court may consider this issue based on the evidence adduced in the new trial of this case. Nor do we infer that the trivial defect defense need not be closely scrutinized in view of the “marked changes in the law” made by Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. (Ursino v. Big Boy Restaurants of America, supra, 192 Cal. App.3d at p. 398, 237 Cal.Rptr. 413.)

[FN.18] When Alpert sought to have the minutes in question marked as trial exhibit 29, VRHA’s counsel asked to approach. After the reported sidebar conference, the minutes were never marked. They should have been marked for identification. The parties to this appeal each make reference to those minutes, even though they are not a part of the record on appeal. By their briefs on this appeal, we are advised that the minutes of the VRHA board of directors state in part:

“The meeting was called for the purpose of discussing the bids for cement work to repair the … sidewalk `bumps.’

“Before discussing the bids the question was raised as to whether or not this work is considered an `emergency’ and therefore did not need approval of homeowners (over $5,000). The Board voted 2 to 1 (1 abstention) that is as [sic] not an emergency, since the matter has been pending since last June….

“… In several places the cement levels have change [sic] due to tree root, etc.

Alpert sought introduction of these minutes to establish knowledge of the problem by VRHA at least a month prior to her fall. VRHA objected, contending the evidence was of subsequent repair and inadmissible by statute and common law policy.

Two other attempts were made to introduce the minutes, with the same result, the court sustaining the objection that the minutes were inadmissible as evidence of subsequent repair and citing Evidence Code section 352, which gives the trial court the discretion to exclude evidence on the basis that its probative value is outweighed by its prejudicial impact. Each ruling was incorrect.

[FN.19] Evidence Code section 1151 provides:

“When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”

[FN.20] Pursuant to Evidence Code section 355, the opponent of the evidence (or its propoadvising the jury that the evidence is being admitted for a limited purpose, explaining that purpose. This instruction may be given at the time the evidence is admitted, in closing instructions, or both. (See Evid.Code, § 355; Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 791, 182 Cal.Rptr. 855.)

[FN.21] Because of the manner in which the issue arose, we do not know if other evidentiary objections (e.g., relating to authenticity of the minutes) could be surmounted by Alpert. These are issues to be resolved by the trial judge on retrial.