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

APPEAL from a judgment of the Superior Court of Fresno County. Donald R. Franson, Jr., Judge.
Morrison & Foerster, Miriam A. Vogel, Timothy F. Ryan, and Tritia M. Murata for Plaintiff and Appellant.
Littler Mendelson, William J. Emanuel, Natalie Rainforth for Employers Group, California Grocers Association, and California Hospital Association as Amici Curiae on behalf of Plaintiff and Appellant.
Davis, Cowell & Bowe, Elizabeth A. Lawrence, Andrew J. Kahn, Sarah Grossman-Swenson and Paul L. More for Defendant and Respondent.
Edmund G. Brown, Jr., Attorney General, Manuel M. Medeiros, Solicitor General, J. Matthew Rodriguez, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Antonette Benita Cordero, Deputy Attorneys General, for Attorney General Edmund G. Brown, Jr., as Amicus Curiae on behalf of Defendant and Respondent.
Altshuler Berzon, Stephen P. Berzon, Scott A. Kronland, and P. Casey Pitts for Service Employees International Union as Amicus Curiae on behalf of Defendant and Respondent.
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This is an appeal from an order denying appellant’s request for a preliminary injunction. An order denying a preliminary injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6); see Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 338, fn. 1.) Appellant, plaintiff Ralphs Grocery Company, contends two California laws protecting labor picketing violate constitutional protections of free speech. We agree. Accordingly, we reverse the order of the trial court and remand the matter for further proceedings on appellant’s motion for preliminary injunction.
FACTS AND PROCEDURAL HISTORY
Appellant operates a large grocery store in Fresno under the name Foods Co. The store is in a commercial shopping center and the store entrance is separated from the center’s parking lot by a narrow sidewalk. The employees of the Fresno Foods Co store are not employed under a union contract.
Beginning in October 2008, non-employee representatives of respondent, defendant United Food and Commercial Workers Union Local 8, began an informational picket line in front of the Foods Co store. Although the record is not fully developed on this point, it appears the picketing involves carrying placards, distributing leaflets, and attempting to engage Foods Co shoppers in conversations to inform them that Foods Co workers do not receive the benefits they would under a union contract. In addition, there are allegations of confrontations between picketers and store employees and of occasional aggressive efforts by picketers to give handbills to customers who are not willing to receive them.^[1]
Alleging that the picketers refused to obey the rules appellant had established for presence on the property, and alleging that the police department was unwilling to remove the picketers from the property, appellant filed a complaint in February 2009 for declaratory and injunctive relief and for damages arising from respondent’s picketers’ continued presence. Appellant sought a preliminary injunction to prevent respondent from “directly or indirectly using Foods Co private property for any expressive activity at a time or place or in a manner prohibited by Foods Co’s Rules.” After submission of declarations and other evidence in support of and in opposition to the motion, and after hearing on the motion, the trial court concluded that two statutes, Code of Civil Procedure section 527.3 and Labor Code section 1138.1, precluded it from issuing a preliminary injunction. Appellant filed a timely notice of appeal.
DISCUSSION
Section 527.3 of the Code of Civil Procedure, enacted in 1975 and known as the Moscone Act, limits the equity jurisdiction of California courts in cases involving a “labor dispute.” (See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 322-323 (Sears).) The prohibition on injunctions applies to, inter alia, picketing and otherwise giving publicity to the existence of a labor dispute. (Code Civ. Proc., § 527.3, subd. (b).) The Moscone Act declares that the described labor activity “shall be legal, and no court … shall have jurisdiction to issue any restraining order or … injunction” prohibiting such activity. (Ibid.)
Labor Code section 1138.1, subdivision (a), enacted 24 years after the Moscone Act, provides, in part: “No court of this state shall have authority to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered ….” The statute also contains other procedural requirements and substantive prerequisites for any such injunction.
Neither statute limits its protection to activity based on where the activity occurs. The protection applies whether the labor activity occurs on public or private property.
In 1979, the California Supreme Court upheld the Moscone Act, rejecting the constitutional arguments that were raised by Sears, Roebuck & Company, which sought to enjoin union picketing on the private sidewalk outside its retail store. (See Sears, supra, 25 Cal.3d at pp. 331-332.) The court rejected a Fifth Amendment challenge to the Moscone Act under the rational basis standard, finding that “the elimination of unnecessary judicial intervention into labor disputes” bore a reasonable relationship to legitimate state objectives. (Sears, supra, at p. 332.) The court declined, however, to express an opinion on whether the California Constitution protected the picketing at issue. (Sears, supra, at p. 327.) It rested its ultimate decision on the terms of the statute. (Ibid.) After Sears, the constitutionality of the Moscone Act went largely unchallenged in California courts until recently.^[2]
The Supreme Court in Sears did not consider the constitutional implications of the Moscone Act’s establishment of a statutory preference for labor picketing over all other free speech. Such a challenge is the focus of the case as presented to us and in light of applicable United States Supreme Court cases and California Supreme Court precedent, we determine that the Moscone Act and Labor Code section 1138.1 are unconstitutional under article I, section 2 of the California Constitution: The two statutes make an impermissible distinction between labor picketing and other peaceful picketing.
(See Police Department of Chicago v. Mosley (1972) 408 U.S. 92 (Mosley); Carey v. Brown (1980) 447 U.S. 455 [applying similar analysis under federal First Amendment].)
In the present case, appellant does not assert a First Amendment right to be free from union picketing in front of its store, nor does such picketing violate its constitutionally protected property rights. (Sears, supra, 25 Cal.3d at p. 331.) Appellant instead contends that the statutes, by allowing labor picketing on private property such as theirs, constitute impermissible content-based discrimination prohibited by the First Amendment.
Respondent does not assert its labor picketing on appellant’s property is protected by the First Amendment. Respondent asserts its activity is a statutory right prescribed by the Moscone Act and Labor Code section 1138.1.
Respondent contends the statutes do not prohibit constitutionally protected speech in any way and are not subject to First Amendment content-discrimination analysis. Respondent further contends appellant is not entitled to assert a deficiency in the Moscone Act; in particular, appellant has no standing to raise the free speech rights of picketers or petition gatherers with non-labor messages whose rights are not protected by that statute.
We believe a different principle is paramount in the present case, however. Our concern here is with the state establishing a priority for particular speech based on its content. The point is not that labor speech is undeserving of legislative protection but, instead, that there is no compelling reason for the state to single it out as the only form of speech that can be exercised despite the objection of the owner of private property upon which the speech activity occurs.
Under California law, a case normally must present an actual controversy between the parties before the courts will entertain it. (Golden Gate Bridge & Highway Dist. v. Felt (1931) 214 Cal. 308, 316; see generally 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, p. 84.) This requirement, though, is to be distinguished from the rigid “case or controversy” requirement of article III of the federal Constitution pursuant to which a litigant must have “standing” to request the adjudication of a particular issue. (3 Witkin, supra, § 22, p. 86.) In California, the “refusal to decide a case lacking in actual controversy is usually regarded as an exercise of discretion. [Citation.] Hence, a court will occasionally depart from its practice in order to decide a matter of public interest.” (Id. at § 29, p. 95.) We choose this latter course for the following reasons: First, the constitutionality of these statutes is a matter of public interest. Second, in this instance, appellant’s assertion of its own interests as a property owner and its assertion of a public interest in nondiscriminatory legislation are sufficiently congruous that appellant has the necessary interest and resources “to assure that all of the relevant facts and issues will be adequately presented” (California Water & Tel. Co. v. Los Angeles (1967) 253 Cal.App.2d 16, 23) in opposition to respondent’s defense of the legislation. Third, respondent’s position would deprive appellant and all other employers of any means of judicial resolution of the dispute between the parties. Accordingly, we reject respondent’s contention that the case is inappropriate for consideration by the court and will address the merits of the appeal.
Three preliminary legal principles should be noted. Respondent and its picketers have no First Amendment right to engage in expressive activities on appellant’s private property. (Hudgens v. NLRB (1976) 424 U.S. 507, 513, 521 (Hudgens).) A state is permitted to establish by statutory or constitutional provision expressive rights that exceed those rights protected by the First Amendment. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910; PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 81.) Finally, the California Supreme Court has expressly held that the same strict-scrutiny analysis applied to content discrimination in the First Amendment context is applicable to rights protected only under the state Constitution’s free speech provisions. (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 865.)
With these three preliminary points firmly established by the United States Supreme Court and the California Supreme Court, the question that confronts us is this: When a statutory right of speech is created by the Legislature, not by the state or federal Constitution, is strict-scrutiny analysis applied to content discrimination inherent in the state legislation‌^[3]
In Hudgens, supra, 424 U.S. at p. 521, striking employees were asked to leave property located near their employer’s store under threat of arrest for trespass. The union filed an unfair labor practice charge against Hudgens. The Supreme Court held that the First Amendment did not provide a right to engage in informational picketing at a privately owned shopping center during a strike: “[T]he constitutional guarantee of free expression has no part to play in a case such as this,” which involves solely labor law, not constitutional law. (Hudgens, supra, 424 U.S. at p. 521.) The court instructed the National Labor Relations Board to “seek a proper accommodation” between the statutory speech rights of the picketers and the property rights of the center’s owner. Hudgens, supra, 424 U.S. 507, arose from proceedings before the National Labor Relations Board, which had jurisdiction to adjudicate the labor dispute before it under a comprehensive set of federal laws regulating labor relations.
Unlike the federal statute in Hudgens, the Moscone Act and Labor Code section 1138.1 are not an incidental part of a broader scheme of regulation of labor relations.^[4] They evince no legislative intent to supplant the courts’ constitutional jurisdiction with administrative-agency jurisdiction. Instead, the Moscone Act and Labor Code section 1138.1 appear to be isolated and singular attempts to expand to private forums the state constitutional free speech rights established for public forums under Robins v. Pruneyard Center, supra, 23 Cal.3d 899 and to do so only for speech involving labor disputes. Because the statutes are related to speech and only speech and clearly discriminate on the content (that is, the subject matter) of the speech, we believe the statutes must be measured according to the standards traditionally applied to free speech discrimination.
The actual impact of the statutes is to discriminate: to provide a forum on both public and private property (“any place where any person or persons may lawfully be” (Code Civ. Proc. § 527.3, subd. (b)(1))) for speech related to labor disputes (including speech on the private property of business owners whose employees have no interest in joining the picketing union) while not providing the same forum (for example) for speech relating to the right not to be discriminated against based on race, sex, ethnicity, or sexual orientation; or for speech relating to the collection of signatures to generate change through the initiative, referendum, and recall process; or for speech relating to the exercise of the freedom of religion, each of which is also of significant importance to the public discourse of a free society. It is that issue that concerns us: The statutes select which views the state is willing to have discussed or debated. As noted above, this discriminatory effect of the statutes in question apparently was not presented to, and clearly was not resolved by, the Supreme Court in Sears, supra, 25 Cal.3d 317.
Laws which prohibit speech based on its content--or, in this case, based on the failure of the speech to address a “labor dispute”--are presumptively invalid. (Simon & Shuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116.) Such laws are permitted only if they serve a compelling state interest and are narrowly drawn to accomplish that interest. (Mosley, supra, 408 U.S. 92, 95.) The desire to provide the broadest forum for expression in labor disputes is not a compelling state interest. (Carey v. Brown, supra, 447 U.S. 455, 466.)
We conclude the state may not act to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest. As a result, we hold that the Moscone Act and Labor Code section 1138.1 contravene the free speech provisions of California Constitution article I, section 2, by discriminatorily conferring speech rights on some, but not all, Californians without a compelling state interest.
Respondent also contends that even if the Moscone Act and Labor Code section 1138.1 are unconstitutional, appellant still has not met the traditional requirements for issuance of a preliminary injunction. In particular, respondent contends appellant has not established that a preliminary injunction is necessary to preserve the status quo, since the current state of affairs has respondent’s agents picketing at the Foods Co property. In addition, respondent contends appellant has failed to offer any evidence to support a claim of irreparability of its potential injury from respondent’s picketing activities.
These issues, as well as the various issues involved in issuing a permanent injunction, were not addressed by the trial court, which only determined that appellant had not established its right to an injunction under Labor Code section 1138.1. It is appropriate to remand this matter for further hearing, at which the trial court will consider the requirements generally applicable to injunctions against allegations of continuing trespass.

DISPOSITION
The order denying appellant’s motion for preliminary injunction is reversed. The matter is remanded for further proceedings as stated in the Discussion section above. Appellant is awarded costs on appeal.
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DETJEN, J.
I CONCUR:


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KANE, J.

KANE, J.
I concur in the reasoning and decision of the majority opinion. I write separately to address the matter of standing, which I regard as a nonissue in this case.
It needs to be emphasized at the outset that the question of whether appellant has legal standing to bring this action is entirely separate from the question of who should prevail on the merits.
While the standing of a plaintiff to bring suit can be raised at any time during the proceedings (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438), it is telling that respondent did not challenge appellant’s standing in the trial court and most (if not all) of the appellate opinions that respondent relies upon do not raise, question or analyze the standing of the property owner to challenge picketing-related activities on its private property. An obvious conclusion emerges: a private property owner necessarily has legal standing to contest the claim by others that they have a right to use property they do not own.
As the owner of the private property on which these picketing activities occurred, appellant has clearly met the legal standard for “standing” in this case.
“‘The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a … court, and not on the issues he wishes to have adjudicated.’ (Flast v. Cohen [(1968) 392 U.S. 83,] 99.) A party enjoys standing to bring his complaint into court if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case. (Baker v. Carr (1962) 369 U.S. 186, 204.) As Professor Jaffe has stated, we must determine standing by a measure of the ‘intensity of the plaintiff’s claim to justice.’ (Jaffe, [Standing to Secure Judicial Review: Private Actions (1961) 75 Harv. L.Rev. 255,] 304.)” (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159.)
It cannot be seriously argued that appellant has no stake in the outcome of this case or that it will not vigorously present its case. Indeed, appellant is the only one with legal standing to object to respondent’s alleged violation of its private property rights.
The law has always recognized the importance of private property ownership rights. These rights have constitutional, statutory and common law roots. While private property rights are not absolute, they are included among our state’s inalienable rights. Article I, section 1 of the California Constitution states: “All people … have inalienable rights. Among these are … acquiring, possessing, and protecting property .…” The Legislature has enacted statutes designed to protect private property rights. (E.g., Pen. Code, § 602 [trespass]; Code Civ. Proc., § 1159 et. seq. [summary proceedings for obtaining possession of real property].) State common law also recognizes certain rights of landowners to exclude union organizers from private property. (Thunder Basin Coal Co. v. Reich (1994) 510 U.S. 200, 217, fn. 21.)



TO BE CONTINUED AS PART II….


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