RALPHS GROCERY COMPANY v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL













Filed 1/27/11






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

RALPHS GROCERY COMPANY, Plaintiff and Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent.

F058716 (Super. Ct. No. 09CECG00349) OPINION

STORY CONTINUE FROM PART I….


This case requires judicial resolution of the conflicts that arise when free speech rights clash with private property rights. Neither set of rights is absolute. Each must be weighed and considered in relation to the other’s rights. (Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766, 771 [union’s right to picket not outweighed by shopping center’s right to possession and enjoyment of private property]; Hudgens v. NLRB (1976) 424 U.S. 507, 517 [“‘To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country’” (italics added)]; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 911 [compelling shopping center to permit solicitation of signatures and distribution of handbills “‘would not markedly dilute defendant’s property rights’”]; Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 869 [shopping mall’s purpose to maximize profits not compelling compared to right to free expression].) Just as the union’s interests are at stake when the property owner seeks to enjoin the picketers from picketing on its property, the property owner’s interests are at stake when the picketers insist on using private property for their own purposes.
Respondent’s belated contention that appellant lacks legal standing to challenge the validity of the Moscone Act (Code Civ. Proc., § 527.3) and Labor Code section 1138.1 because appellant’s free speech is not being restricted misses the point entirely. Appellant’s standing emanates from its own private property rights, not from its own free speech rights.
Respondent argues that unconstitutional discrimination can only be raised by the person who is a member of the class of persons discriminated against. While that statement reflects the general rule, it has no application here. Buchanan v. Warley (1917) 245 U.S. 60 is instructive on this point. In an action for specific performance of a real estate contract, the plaintiff, a white man, alleged that the defendant, a “colored person,” breached a written contract to buy real property. The defense relied upon a city ordinance that precluded a colored man from owning the property. The plaintiff countered by arguing that the ordinance violated the Fourteenth Amendment of the California Constitution. The lower courts upheld the ordinance and ruled for the defendant. In a unanimous opinion the Supreme Court reversed, holding that the ordinance was unconstitutional. Pertinent to the issue of standing, the court stated:
“The objection is made that this writ of error should be dismissed because the alleged denial of constitutional rights involves only the rights of colored persons, and the plaintiff in error is a white person. This court has frequently held that while an unconstitutional act is no law, attacks upon the validity of laws can only be entertained when made by those whose rights are directly affected by the law or ordinance in question. Only such persons, it has been settled, can be heard to attack the constitutionality of the law or ordinance. But this case does not run counter to that principle.
“The property here involved was sold by the plaintiff in error, a white man, on the terms stated, to a colored man; the action for specific performance was entertained in the court below, and in both courts the plaintiff’s right to have the contract enforced was denied solely because of the effect of the ordinance making it illegal for a colored person to occupy the lot sold.… This case does not come within the class wherein this court has held that where one seeks to avoid the enforcement of a law or ordinance he must present a grievance of his own, and not rest the attack upon the alleged violation of another’s rights. In this case the property rights of the plaintiff in error are directly and necessarily involved. See Truax v. Raich [(1915)] 239 U. S. 33, 38.” (Buchanan v. Warley, supra, 245 U.S. at pp. 72-73, italics added.)
Thus, it is not true, as respondent contends, that in all cases only a member of the class of persons discriminated against has standing to assert that the law is discriminatory, or in the First Amendment context, only a member of the class of persons whose free speech is affected has standing to assert that the law violates the First Amendment.
It is ludicrous for respondent to argue that appellant is precluded from challenging the validity of the very statutes that respondent brandished (and the lower court relied upon) in opposing its request for injunctive relief. Appellant’s objection to these statutes is defensive, not offensive, in nature. It is being asserted as a shield, not as a sword. If due process means anything it means having the opportunity to fully defend against the assertions of fact and law made by one’s opponent (and relied upon by the lower court). Here, respondent convinced the lower court to deny the request for injunctive relief on the authority of these statutes. Just as in Buchanan v. Warley, supra, 245 U.S. 60, the lower court order directly and necessarily impacts appellant’s property rights. This gives appellant standing to challenge the legal and/or factual basis of that denial order, including, when applicable, arguing that the statutes relied upon by the lower court are void as being contrary to the federal or state Constitutions.


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KANE, J.

WISEMAN, ACTING P.J., Dissenting.
I agree with the majority’s implicit conclusion that the shopping center in this case is not governed by the California Supreme Court’s opinion in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Robins v. Pruneyard). As several Court of Appeal opinions have concluded (Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425, 434; Costco Companies v. Gallant (2002) 96 Cal.App.4th 740, 755-756; Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106, 110; Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382), stand-alone stores and stores located in small shopping centers do not fall within the constitutional rule announced in Robins v. Pruneyard. The Foods Co store in this case is comparable to the stores at issue in those cases. As a result, I would hold that respondent has no state constitutional right to speak on appellant’s property. It is at this point that I part company with my colleagues.
In my view, the next question is whether the union, lacking Pruneyard rights, still has a statutory right to picket on the property under the Moscone Act (Code Civ. Proc., § 527.7) (Moscone Act) and Labor Code section 1138.1. Appellant’s only argument that it does not is that these statutes violate the free-speech guarantees of the California and federal Constitutions. Therefore, if the statutes are constitutionally valid, the union has a statutory right to picket on the property and does not need a constitutional right to do so.
I would conclude that appellant lacks standing to raise a constitutional free-speech claim because it does not (and cannot) contend that its own freedom of speech is burdened. At oral argument, appellant’s counsel conceded that appellant is not asserting any constitutional free-speech rights of its own. Despite multiple opportunities during briefing and oral argument, appellant has pointedly (and with good reason) not argued that its rights against compelled speech and association are implicated. Its argument by necessity is based on the constitutional rights of hypothetical speakers who might like to speak on private, non-Pruneyard property but cannot because the two statutes do not apply to them. Even the hypothetical speakers whose constitutional rights are affected, if successful, would receive no relief, as their speech would still be enjoined if the statutes are invalidated. The only benefit they would receive is the knowledge that similarly situated labor disputants would also be enjoined. Under California Supreme Court precedent, this means appellant lacks standing: “‘[O]ne will not be heard to attack a statute on grounds that are not shown to be applicable to himself .…’” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095.)
Appellant’s position is very different from that of the parties in Police Department of Chicago v. Mosley (1972) 408 U.S. 92 and Carey v. Brown (1980) 447 U.S. 455, the United States Supreme Court cases upon which appellant primarily relies. In those cases, the court vindicated the free-speech rights of parties to the case who were criminally prosecuted for speech. In the present case, by contrast, no party’s right to speak has been burdened.
Confronted with these difficulties at oral argument, appellant’s counsel suggested that appellant really intended to assert property rights under the Fifth Amendment: perhaps the two challenged statutes effectuate a taking without just compensation. Appellant’s briefs contain no organized presentation of this notion, however, and cite no authority that would support it. Counsel’s reference to the Fifth Amendment appears to be only an effort to mask the fact that appellant’s constitutional rights are not implicated in this case.
Respondent’s counsel appeared to concede at oral argument that the issue of standing was not raised in the trial court. This would not, however, bar us from basing our ruling on standing grounds. “‘[T]he issue of standing is so fundamental that it need not even be raised below—let alone decided—as a prerequisite to our consideration.’” (Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 877.) Even if there is some doubt about whether this is a universal rule (see People v. Dasilva (1989) 207 Cal.App.3d 43, 47), it applies here. The reason for the general principle that appellate courts should not address issues raised for the first time on appeal is that it is usually unfair to the trial court and the adverse party to take advantage of an error on appeal which could have been corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) There is nothing plaintiff could have done in the trial court, however, to correct its lack of standing to assert the constitutional free-speech rights of hypothetical third parties. Further, there is no question but that appellant had the opportunity to brief the issue on appeal. Respondent raised the issue in its supplemental brief filed on September 7, 2010. Appellant had the opportunity to file, and did file, a responsive supplemental brief.
Although there are limited exceptional circumstances in which a litigant may assert a constitutional claim on behalf of third parties (see Powers v. Ohio (1991) 499 U.S. 400, 410-411), this is not such a case. For a court to recognize a litigant’s claim asserted on behalf of third parties, three criteria must be satisfied: “The litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute [citation]; the litigant must have a close relation to the third party [citation]; and there must exist some hindrance to the third party’s ability to protect his or her own interests. [Citations.]” (Id. at p. 411.) California courts have applied the United States Supreme Court’s doctrine on this issue to state-court proceedings. (See Selinger v. City Council (1989) 216 Cal.App.3d 259, 270-271.) Here, appellant cannot satisfy the second criterion because it does not claim a close relation to, or even any interest in common with, any third party whose free speech rights are burdened. (Cf. Craig v. Boren (1976) 429 U.S. 190 [beer vendor had standing to invoke rights of 18-to-20-year-old male beer buyers]; Eisenstadt v. Baird (1972) 405 U.S. 438 [distributor of contraceptives had standing to invoke rights of unmarried contraceptives users].) To the contrary, one imagines that hypothetical third-party speakers’ interests would be to enforce their rights to free speech to speak on appellant’s property, but appellant’s interest would be to enjoin them by invoking its property rights. Invalidation of the two statutes here at issue would not advance the third parties’ interests in any way.
In one early case, Buchanan v. Warley (1917) 245 U.S. 60, the Supreme Court held that a White plaintiff suing to enforce against a Black defendant a contract for sale of real property had standing to challenge a local ordinance under which Black people were forbidden to own the property at issue. The court rejected the argument that the White plaintiff lacked standing to assert that the ordinance was invalid because it violated the rights of Black people under the federal Constitution and federal statutes. (Buchanan, supra, at pp. 72-73.) The court did not consider, however, whether the three elements required for third-party standing had been established, since those elements had not yet been formulated by the court in 1917. “It is axiomatic that cases are not authority for propositions not considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) Further, the case does not support appellant’s standing here in any event. In Buchanan, the White plaintiff’s interests were assuredly aligned with the interests of Black people subject to the ordinance (if not the interests of the particular defendant in the case): His interest, like theirs, was to invalidate the racist law. Appellant’s interests in this case are, by contrast, antithetical to those of the hypothetical third-party speakers whose rights it asserts, as I have said.
A holding based on the lack of standing I have described—a lack of standing to assert third parties’ rights—would not deprive appellant of a judicial forum. Ralphs does not lack standing to bring this lawsuit, for it has an interest in asserting the right to exclude people from the area in front of its store, assuming it has that right under its lease. The merits of its nonconstitutional claims should have been, and were, addressed in the trial court. The result of the determination of those claims on their merits was that the Moscone Act and Labor Code section 1138.1 prevent the issuance of an injunction. To hold that Ralphs lacks standing to challenge the validity of those statutes by asserting the constitutional rights of third parties with whom it has no connection would deprive Ralphs only of an argument, and would do so on the basis of well-established legal principles.
Although I believe appellant lacks standing, I will address the merits of appellant’s claim, which overlap substantially with issues relating to standing. Appellant expresses the frustration that many California property owners must feel when required by California law to allow peaceful labor speech—speech they obviously oppose—on their own property. Justice Chin gave voice to this feeling, in a different legal context, in his dissent in Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 871 (Fashion Valley Mall), where he urged the overruling of Robins v. Pruneyard: “It is wrong to compel a private property owner to allow an activity that contravenes the property’s purpose.” (Italics added.) As I will explain, however, we are not in a position to relieve this frustration in this case because appellant has not shown that the Moscone Act and Labor Code section 1138.1 are unconstitutional.
The majority opinion essentially concludes that, unless state law allows state courts to enjoin either all speech or no speech on private property at the owner’s request, then the constitutional right to free expression of someone is being violated. This contention is not supported by existing constitutional principles. The challenged statutes do not burden anyone’s speech. To the contrary, the effect of the statutes on the speakers at whom they are aimed, i.e., people involved in “labor disputes,” is to prevent the suppression of their speech by injunction. The majority opinion apparently accepts appellant’s view that there is no difference between a statute that selectively suppresses speech and a statute that selectively protects it—that this is the difference between “six in one hand” and “half a dozen in the other,” as appellant’s reply brief puts it. In my view, this position does not work. The state and federal Constitutions condemn the suppression of speech, not the protection of it. The hypothetical trespassing nonlabor speakers whose rights appellant is asserting would be silenced by laws relating to trespass and laws allowing the issuance of injunctions, not by the Moscone Act or Labor Code section 1138.1. The majority’s position is, in effect, that the law as a whole discriminatorily burdens the hypothetical speakers’ speech and that the proper remedy is not to refuse application of the burdensome laws in a case involving a burdened party, but to strike down the protective laws in a case not involving a burdened party.
This approach is an extension of existing constitutional law. Only a single brief paragraph containing little analysis in Waremart Foods v. N.L.R.B. (D.C.Cir. 2004) 354 F.3d 870, 876 (Waremart Foods), supports it, and that opinion is not binding on us. The United States and California Supreme Courts may choose to expand existing constitutional doctrine, but mid-level appellate courts generally uphold statutes unless they conflict with existing authority.^[1]
Under existing constitutional analysis, the two statutes are valid. A statute is unconstitutional as applied if the actual application of it to the challenging party impermissibly burdens a constitutional right of that party. (See Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1089.) There is no as-applied invalidity here because the two statutes do not burden appellant’s free-speech rights at all. A statute is facially invalid if there are no circumstances under which it could be validly applied—that is, no circumstances under which its application would not impermissibly burden someone’s constitutional rights. (United States v. Salerno (1987) 481 U.S. 739, 745.) There is no facial invalidity here because countless applications of the challenged statutes—in fact, their normal applications—protect expression and place no burden on it.
Unlike other kinds of laws, a statute burdening speech is also subject to a facial challenge where the statute is shown to be substantially overbroad, even if some valid applications of it exist. A statute is substantially overbroad if, in addition to regulating some speech properly, it also operates to suppress or chill a substantial amount of other, protected speech. (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 798-801.) There is no overbreadth here because the challenged statutes do not suppress or chill any speech. Since appellant’s free-speech argument does not show that the Moscone Act and Labor Code section 1138.1 are invalid as applied, facially invalid, or invalid due to overbreadth, appellant cannot show the statutes are unconstitutional.
For whatever reason, the California Legislature has decided to allow peaceful labor speech on private property over the owner’s objection. Laws that protect expression by limiting courts’ jurisdiction to enjoin labor activity, such as the federal Norris-LaGuardia Act and state laws patterned after it, came into existence many years ago because courts were excessively zealous in granting injunctions against labor activity. If the pendulum has swung too far the other way and now enables labor unions to intimidate business owners, it is the responsibility of the Legislature to change the law. The fact that the Legislature may not be responsive does not mean the courts should step in and determine that the statutes are invalid absent a convincing argument that they are violating anyone’s constitutional rights. Doing so simply is not our role. Unlike in Robins v. Pruneyard, supra, 23 Cal.3d 899, and Fashion Valley Mall, supra, 42 Cal.4th 850, in which the outcome depended only on the Supreme Court’s interpretation of the state Constitution, here there is a legislative judgment which requires deference unless binding authority compels its invalidation. There simply is no binding authority compelling invalidation of the statutes challenged here.
The majority’s approach attempts to drive the square peg of an invasion of property rights into the round hole of a constitutional free-speech violation. In doing so, the majority adjudicates the rights of nonparties where their interests are not at issue, establishes a new constitutional analysis, and, whether or not it intends to, exceeds its proper authority by circumventing the Legislature and establishing new constitutional law without legal necessity. For these reasons, I respectfully dissent.


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WISEMAN, ACTING P.J.



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