Kuba v. SeaWorld CA4/1

Filed 4/21/15 Kuba v. SeaWorld CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALFREDO KUBA et al., D064457

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2012-00091823-
CU-CR-CTL)
SEAWORLD, LLC et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Steven R.

Denton, Judge. Affirmed.

Evans & Page, Corey A. Evans, Geneva Page and Bryan W. Pease, for Plaintiffs

and Appellants.

Mitchell Silberberg & Knupp, Patricia H. Benson and Emily F. Evitt, for

Defendants and Respondents.

INTRODUCTION

The case involves a dispute over whether activists have a state constitutional right

to engage in expressive activities at the entrance to an amusement park located on
parkland leased from a government entity. Alfredo Kuba and San Diego Animal

Advocates (collectively, Kuba) appeal a summary judgment in favor of SeaWorld, LLC

and certain of its employees (collectively, SeaWorld) on Kuba's claims for violations of

the state Constitution's liberty in speech clause (Cal. Const., art I, § 2, subd. (a)) and Civil

Code section 52.1. Kuba contends we must reverse the judgment as to his constitutional

claim because the sidewalk in front of SeaWorld's ticketing entrance is a traditional

public forum by virtue of its location within public parkland, and expressive activities

may not be banned outright in a traditional public forum. Kuba further contends we must

reverse the judgment as to his statutory claim because SeaWorld's threat to tow

demonstrators' vehicles constituted a prohibited threat of violence. We are unpersuaded

by either contention and further conclude Kuba's claims are time-barred. We, therefore,

affirm the judgment.

BACKGROUND

SeaWorld operates a marine-themed amusement park and charges a fee for

admission. The amusement park is located on 189.4 acres of commercial property

SeaWorld leases from the City of San Diego (City). The lease requires SeaWorld to pay

rent and property taxes, and gives SeaWorld the right to quiet possession of the leasehold

during the lease term.

The leasehold is located within Mission Bay Park. According to the SeaWorld

Master Plan Update, "Mission Bay Park is a seven square mile public aquatic park that

provides a diverse range of recreational activities serving both local and regional needs

including, boating, picnicking, walking, and bicycling. Additionally, Mission Bay Park

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hosts a number of commercial-oriented recreation leases such as SeaWorld, resort hotels

and recreational camping, as well as not-for-profit leases such as youth camping and

sailing facilities."

SeaWorld has a policy prohibiting all trespassing, loitering, demonstrating,

petitioning, and leafleting on the leasehold. No trespassing signs are posted

approximately every 30 feet on SeaWorld's perimeter fence, and similar signs are posted

at prominent locations on the leasehold.

Although Kuba knew of SeaWorld's policy, he and others with the San Diego

Animal Advocates went to SeaWorld on March 31, 2007, to engage in expressive

activities. The group convened in SeaWorld's paid parking lot and then, carrying

banners, signs, and leaflets, walked through the parking lot to SeaWorld's ticketing booth

area. They stopped by the member entrance and stood in front of a sign advising of

SeaWorld's policy prohibiting solicitation and the distribution of literature on the

leasehold.

SeaWorld security officers met the group when they reached the entrance,

informed the group they were on private property, and requested they leave or face arrest.

The security officers also threatened to have the group members' vehicles towed away.

The group quickly returned to the parking lot and left.

Kuba sued SeaWorld in federal district court, claiming SeaWorld's policy violated

his free speech rights under the federal and state Constitutions. The federal district court

granted summary judgment to SeaWorld on Kuba's federal claims and dismissed Kuba's

state law claims, declining to exercise supplemental jurisdiction over them. The Ninth

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Circuit Court of Appeals affirmed the federal district court's judgment. (Kuba v.

SeaWorld, Inc. (2011) 428 Fed.Appx. 728, 730.)

Kuba then filed the instant action asserting claims for violation of the state

Constitution's Liberty of Speech clause (Cal. Const., art. I, § 2, subd. (a)) and Civil Code

section 52.1. The trial court granted summary judgment for SeaWorld, finding the area

where Kuba attempted to engage in expressive activities was not a public forum, either

by tradition or by function. The court also found a threat by SeaWorld's security officers

to tow demonstrators' vehicles was not the type of threat prohibited by Civil Code section

52.1.1

DISCUSSION

I

Statute of Limitations

A

Before seeking summary judgment, SeaWorld demurred to Kuba's complaint,

asserting Kuba's causes of action were time-barred because Kuba did not file the

complaint within 30 days after the federal court dismissed his state law claims as required

1 As part of its papers below, SeaWorld submitted 39 evidentiary objections, which
the trial court overruled without comment. In footnote 1 of its respondent's brief,
SeaWorld stated it was renewing all of its objections on appeal. We decline to review the
propriety of the trial court's ruling on SeaWorld's objections because SeaWorld did not
file a cross-appeal and has not shown review is otherwise necessary to determine whether
any trial court error prejudiced Kuba. (Code Civ. Proc., § 906; Building Industry Assn. v.
City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9.)
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by 28 U.S.C. section 1367(d) (§ 1367(d)).2 The court overruled the demurrer, noting a

split of authority about the proper interpretation of § 1367(d) and finding more persuasive

the interpretation expressed in Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298

(Bonifield), under which Kuba's state law claims were timely. SeaWorld did not reassert

this point in its summary judgment motion.

During the pendency of this appeal, the California Supreme Court resolved the

split of authority and expressly disapproved of Bonifield's interpretation of § 1367(d).

(City of Los Angeles v. County of Kern (2014) 59 Cal.4th 618, 622.) Based on this new

precedent, SeaWorld contends we should affirm the judgment on the alternative legal

ground Kuba's causes of action are time-barred. (See Sahadi v. Scheaffer (2007) 155

Cal.App.4th 704, 714 [whether a cause of action is time-barred is a question of law];

Ward v. Taggart (1959) 51 Cal.2d 736, 742 [questions of law on undisputed facts may be

raised for the first time on appeal]; D'Amico v. Board of Medical Examiners (1974) 11

Cal.3d 1, 19 [an appellate court will affirm a judgment if the judgment is correct on any

applicable legal theory].) We agree.

B

Although federal court jurisdiction is generally limited to claims presenting a

federal case or controversy or disputes between diverse parties, federal courts may

exercise supplemental jurisdiction over related state claims forming part of the same case

2 This code section provides the statute of limitations for a supplemental state claim
dismissed from a federal action "shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides for a longer tolling
period." (§ 1367(d).)
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or controversy. (28 U.S.C. § 1367(a); City of Los Angeles v. County of Kern, supra, 59

Cal.4th 618, 622.) If the basis for federal court jurisdiction dissolves in a case in which

the federal court has exercised supplemental jurisdiction over state claims, the federal

court may dismiss the state claims, leaving them to be refiled in state court. (28 U.S.C.

§ 1367(c)(3); City of Los Angeles v. County of Kern, supra, at p. 622.) When this occurs,

federal laws provides a grace period allowing any otherwise time-barred state claims to

be refiled in state court no later than 30 days after the federal court dismissed them. (28

U.S.C. § 1367(d); City of Los Angeles v. County of Kern, supra, at p. 622.)

The statute of limitations for Kuba's causes of action is the same as for personal

injury causes of action, which is currently two years. (Code Civ. Proc., § 335.1; Gatto v.

Sonoma (2002) 98 Cal.App.4th 744, 760; West Shield Investigations & Sec. Consultants

v. Superior Court (2000) 82 Cal.App.4th 935, 951-953.) Kuba's causes of action accrued

when they were complete with all their elements or, stated differently, when the wrongful

act was done and consequent liability arose. (Norgart v. Upjohn (1999) 21 Cal.4th 383,

397; Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1531.)

The allegedly wrongful act in this case was SeaWorld's refusal to allow Kuba to engage

in expressive activities on its property. As this act occurred on March 31, 2007, Kuba's

causes of action became time-barred on March 31, 2009, unless Kuba filed his complaint

within 30 days of the federal court's dismissal of the state claims.

The federal court dismissed Kuba's state claims on April 21, 2011, when the Ninth

Circuit affirmed the federal district court's decision granting summary judgment for

SeaWorld on Kuba's federal claims and declining to exercise supplemental jurisdiction on

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Kuba's state claims. (Kuba v. SeaWorld, Inc., supra, 428 Fed.Appx. at p. 730 & fn. 1;

Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 371.) Kuba did not file his

complaint until almost 10 months later on February 3, 2012. Accordingly, his claims are

time-barred. (28 U.S.C. § 1367(d); City of Los Angeles v. County of Kern, supra, 59

Cal.4th at p. 622.)

The fact Kuba is seeking injunctive and declaratory relief does not alter our

conclusion. "[T]he nature of the right sued upon and not the form of action nor the relief

demanded determines the applicability of the statute of limitations under our code."

(Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 733; Carter v.

Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412.)

We are also unpersuaded the statute of limitations is extended under either the

continuing violation doctrine or the theory of continuous accrual. "The continuing

violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of

limitations, treating the limitations period as accruing for all of them upon commission or

sufferance of the last of them." (Aryeh v. Canon Business Solutions, Inc. (2013) 55

Cal.4th 1185, 1192 (Aryeh).) The doctrine does not apply where, as here, the alleged

wrong was discrete and independently actionable and it was not necessary for a series of

harms to accumulate for the alleged wrong to become apparent. (Id. at p. 1198.)

Similarly, "under the theory of continuous accrual, a series of wrongs or injuries

may be viewed as each triggering its own limitations period, such that a suit for relief

may be partially time-barred as to older events but timely as to those within the

applicable limitations period." (Aryeh, supra, 55 Cal.4th at p. 1192.) The application of

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the theory of continuous accrual is generally limited to circumstances where a recurring

obligation exists and each new breach of the obligation provides all the elements of a

claim, which may be treated as an independently actionable wrong triggering its statute of

limitations. (Id. at p. 1199.) As the record does not show the existence of a recurring

obligation by SeaWorld toward Kuba or that SeaWorld committed an independently

actionable wrong within the preceding two years, the theory does not apply in this case.

II

Summary Judgment

Even if Kuba's causes of action were not time-barred, he has not established the

court erred in granting summary judgment. "Summary judgment is warranted when 'all

the papers submitted show that there is no triable issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.' [Citation.] Defendants

moving for summary judgment meet this burden by showing that one or more elements of

a cause of action cannot be established or that there is a complete defense to the action.

[Citation.] Once a defendant makes this showing, the burden shifts to the plaintiff to set

forth specific facts showing that a triable issue of material fact exists as to that cause of

action or defense. [Citations.]

"We review a trial court's grant of summary judgment de novo, 'considering "all of

the evidence set forth in the [supporting and opposition] papers, except that to which

objections have been made and sustained by the court, and all [uncontradicted] inferences

reasonably deducible from the evidence." ' [Citations.] 'In independently reviewing a

motion for summary judgment, we apply the same three-step analysis used by the

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superior court. We identify the issues framed by the pleadings, determine whether the

moving party has negated the opponent's claims, and determine whether the opposition

has demonstrated the existence of a triable, material factual issue.' " (Van v. Target Corp.

(2007) 155 Cal.App.4th 1375, 1382.)

A

Violation of Liberty of Speech Clause Claim

1

"The free speech guarantee of the California Constitution 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.' (Cal. Const., art. I, § 2, subd. (a).) [¶] In considering a free speech

claim under article I, 'we begin with the unquestioned proposition that the California

Constitution is an independent document and its constitutional protections are separate

from and not dependent upon the federal Constitution . . . .' [Citations.] 'The state

Constitution's free speech provision is "at least as broad" as [citation] and in some ways

is broader than [citations] the comparable provision of the federal Constitution's First

Amendment.' [Citation.] Unlike the First Amendment, California's free speech clause

'specifies a "right" to freedom of speech explicitly and not merely by implication,' 'runs

against . . . private parties as well as governmental actors' and expressly 'embrace[s] all

subjects.' [Citation.] However, '[m]erely because our provision is worded more

expansively and has been interpreted as more protective than the First

Amendment . . . does not mean that it is broader than the First Amendment in all its

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applications.' [Citations.] Our case law interpreting California's free speech clause has

given respectful consideration to First Amendment case law for its persuasive value,

while making clear that 'federal decisions interpreting the First Amendment are not

controlling.' " (Beeman v. Anthem Prescription Management, LLC (2013) 58 Cal.4th

329, 340-341.)

"In assessing a free speech violation, the type of forum dictates the permissible

restriction. In a traditional public forum, free speech rights receive the greatest degree of

protection." (Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1335.)

Expressive activities may not be banned outright in a traditional public forum. Rather,

they may be subject to content-neutral time, place, and manner restrictions if the

restrictions are narrowly tailored to serve a significant government interest and leave

open ample alternative means of communication. They may also be subject to content-

based restrictions if the restrictions are necessary to serve a compelling government

interest and are narrowly tailored to that end. (Ibid.)

Kuba's constitutional claim rests on his contention the sidewalk in front of

SeaWorld's ticketing entrance is a traditional public forum, precluding SeaWorld from

banning all expressive activities there. "In considering whether an area constitutes a

traditional public forum, courts have emphasized (1) 'the actual use and purposes of the

property, particularly status as a public thoroughfare and availability of free public access

to the area,' (2) 'the area's physical characteristics, including its location and the existence

of clear boundaries delimiting the area,' and (3) 'traditional or historic use of both the

property in question and other similar properties.' " (Prigmore v. City of Redding, supra,

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211 Cal.App.4th at p. 1339; Boardley v. U.S. Dept. of Interior (D.C. Cir. 2010) 615 F.3d

508, 514 [a traditional public forum is a place which by long tradition or by government

fiat has been devoted to assembly and debate].)

As factual support for his traditional public forum position, Kuba points to

evidence he contends shows: (1) the sidewalk in front of SeaWorld's ticketing entrance is

on land owned by the City and dedicated as a public park; (2) it contains a public bus

stop; and (3) it is a public right of way connecting to other sidewalks in Mission Bay

Park. However, the City's ownership or control of the sidewalk or the land underneath it

is not dispositive. (Cornelius v. NAACP Legal Defense and Educational Fund, Inc.

(1985) 473 U.S. 788, 803 [government ownership or control of property does not

guarantee access to the property for expressive activities].) The sidewalk's presence

within Mission Bay Park is also not dispositive. "The dispositive question is not what the

forum is called, but what purpose it serves, either by tradition or specific designation.

What makes a park a traditional public forum is not its grass and trees, but the fact that it

has 'immemorially been held in trust for the use of the public, and time out of mind, ha[s]

been used for purposes of assembly, communicating thoughts between citizens, and

discussing public questions.' " (Boardley v. U.S. Dept. of Interior, supra, 615 F.3d at

p. 515, quoting Perry Education Assn. v. Perry Local Educators' Assn. (1983) 460 U.S.

37, 45; see also U.S. v. Kokinda (1990) 497 U.S. 720, 728-729 ["the location and purpose

of a publicly owned sidewalk is critical to determining whether such a sidewalk

constitutes a public forum"].) Thus, for the sidewalk in front of SeaWorld's ticketing

entrance to be a traditional public forum, the sidewalk must be held open for public

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discourse purposes. (Boardley v. U.S. Dept. of Interior, supra, at p. 515; see also

International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 679 [a

traditional public forum is property upon which the free exchange of ideas is a principal

purpose]; Reeves v. Rocklin Unified School Dist. (2003) 109 Cal.App.4th 652, 662

[same].)

Here, there is no evidence the sidewalk in front of SeaWorld's ticketing entrance is

or has ever been held open for public discourse purposes. Before SeaWorld's

construction, the leasehold was a tidal marsh, which the City had to dredge to create the

land underneath the leasehold. SeaWorld paid for and constructed its main gate, ticketing

entrance and all of the other structures on its premises. It also paid for and constructed its

parking lot area. Neither SeaWorld's main gate nor its exit include pedestrian walkways.

While there is a pedestrian and bicycle path along SeaWorld's perimeter, pedestrians and

bicyclists are kept away from SeaWorld's parking lot by SeaWorld's fencing and

landscaping.

Although there is currently no master plan requiring or contemplating public

pedestrian or bicycle paths within SeaWorld's leasehold, there is a bus stop located in

SeaWorld's parking lot on the sidewalk on the southwest corner of the park's perimeter.

In addition, there is evidence there may have been at least a conceptual pedestrian or

bicycle path through SeaWorld's parking lot approximately 30 years ago. There is also

evidence more than a decade ago joggers cut through SeaWorld's parking lot without

SeaWorld's permission. However, this evidence falls far short of showing the sidewalk in

front of SeaWorld's ticketing entrance is or has ever been held open for public discourse

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purposes. Consequently, Kuba has not established there is a triable issue of material fact

as to whether the sidewalk is a traditional public forum.

2

As SeaWorld points out, the absence of evidence the sidewalk is a traditional

public forum does not necessarily preclude the possibility of a state constitutional

violation. Generally, landowners and tenants may exclude persons from trespassing on

their property as the right to exclude is a fundamental aspect of private property

ownership. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232

Cal.App.4th 1171, 1178, citing Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390.)

Nonetheless, when a property owner holds private property open for use by the general

public, the property may, in certain circumstances, become the functional equivalent of a

public forum subject to the exercise of state constitutional speech and assembly rights.

(Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (2012) 55

Cal.4th 1083, 1091-1092 (Ralphs Grocery).) To constitute the functional equivalent of a

public forum, an area on private property must be designed and furnished to induce

patrons to congregate for entertainment, relaxation, or conversation and not merely to

walk from a parking area, to walk from one place to another on the property, or to view

the property owner's merchandise and advertising displays. (Id. at pp. 1093, 1104.)

We need not devote extended analysis to whether the sidewalk in front of

SeaWorld's ticketing entrance is the functional equivalent of a public forum because

Kuba expressly disavows any reliance on the Ralphs Grocery case and related authorities,

choosing instead to rely solely on traditional public forum authorities. We nevertheless

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note just as there is no evidence the sidewalk has ever been held open for public

discourse purposes, there is no evidence it is designed and furnished to induce patrons to

congregate for entertainment, relaxation, or conversation. Thus, even if Kuba had relied

on the Ralph Grocery case and related authorities, he has not established there is a triable

issue of material fact as to whether the sidewalk is the functional equivalent of a public

forum.

III

Violation of Civil Code Section 52.1 Claim

Subdivisions (a) and (b) of Civil Code section 52.1 collectively authorize an

individual action at law, a suit in equity, or both, against anyone who interferes, or

attempts to interfere, by threats, intimidation, or coercion, with another's exercise or

enjoyment of his or her constitutional rights. (Jones v. Kmart Corp. (1998) 17 Cal.4th

329, 331; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881-

883.) However, speech alone is not sufficient to support such an action unless: (1) the

speech threatens violence against a specific person or group of persons; (2) the speech

causes the specific person or group of persons to reasonably fear violence will be

committed against them or their property; and (3) the speaker had the apparent ability to

carry out the threat. (Civ. Code, § 52.1, subd. (j).)

Kuba bases his statutory claim on SeaWorld's alleged threat to tow the

demonstrators' vehicles unless they left SeaWorld's leasehold. This threat does not

provide sufficient support for Kuba's claim because it is not a threat of violence against a

specific person or group of persons. It is also not the type of threat that would cause a

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specific person or group of persons to reasonably fear violence will be committed against

them or their property. Accordingly, Kuba has not established there is a triable issue of

material fact as to his cause of action for violating Civil Code section 52.1.

DISPOSITION

The judgment is affirmed. Respondents are awarded their appeal costs.

MCCONNELL, P. J.

WE CONCUR:

MCDONALD, J.

AARON, J.

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