APPEAL from a judgment of the Superior Court of Fresno County.(Super. Ct. No. 09CECG00349) Donald R. Franson, Jr., Judge.
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PUBLICATION
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.*fn1
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.
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.*fn2
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 ...