Court: Superior County: Sacramento Judge: Loren E. McMaster Ct.App. 3 C060413 Sacramento County Super. Ct. No. 34-2008- 00008682-CU-OR-GDS
The opinion of the court was delivered by: Kennard, J.
A supermarket owner sought a court injunction to prevent a labor union from picketing on the privately owned walkway in front of the only customer entrance to its store. In response, the union argued that two statutory provisions -- Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1) -- prohibited issuance of an injunction under these circumstances. The trial court denied relief, ruling that the supermarket owner had failed to satisfy section 1138.1's requirements for obtaining an injunction against labor picketing.
The Court of Appeal reversed. It held that the walkway fronting the supermarket's entrance was not a public forum under the California Constitution's provision protecting liberty of speech (Cal. Const., art. I, § 2, subd. (a)), and therefore the store owner could regulate speech in that area. It further held that both the Moscone Act and section 1138.1, because they give speech regarding a labor dispute greater protection than speech on other subjects, violate the free
speech guarantee of the federal Constitution's First Amendment and the equal protection guarantee of the federal Constitution's Fourteenth Amendment. This court granted the union's petition for review.
We agree with the Court of Appeal that the supermarket's privately owned entrance area is not a public forum under the California Constitution's liberty of speech provision. For this reason, a union's picketing activities in such a location do not have state constitutional protection. Those picketing activities do have statutory protection, however, under the Moscone Act and section 1138.1. We do not agree with the Court of Appeal that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations, and which are modeled on federal law, run afoul of the federal constitutional prohibition on content discrimination in speech regulations. On this basis, we reverse the Court of Appeal's judgment and remand the matter for further proceedings.
Plaintiff Ralphs Grocery Company (Ralphs) owns and operates warehouse grocery stores under the name "Foods Co." One such store is located in a retail development in Sacramento called College Square, which also contains restaurants and other stores. The College Square Foods Co store has only one entrance for customers. A paved walkway around 15 feet wide extends outward from the building's south side, where the customer entrance is located, to a driving lane that separates the walkway from the store's parking lot, which also serves customers of other retail establishments within College Square.
When the College Square Foods Co store opened in July 2007, agents of defendant United Food and Commercial Workers Union Local 8 (the Union) began picketing the store, encouraging people not to shop there because the store's employees were not represented by a union and did not have a collective bargaining agreement. The Union's agents, in numbers varying between four and eight, walked back and forth on the entrance walkway carrying picket signs, speaking to customers, and handing out flyers. These activities generally occurred five days a week (Wednesday through Sunday) for eight hours a day. The Union's agents did not impede customer access to the store.
In January 2008, Ralphs notified the Union in writing of its regulations for speech at its Foods Co stores, including the one in College Square. Those store regulations prohibit speech activities within 20 feet of the store's entrance and prohibit all such activities during specified hours and for a week before certain designated holidays. The store regulations also prohibit physical contact with any person, the distribution of literature, and the display of any sign larger than two feet by three feet. The Union's agents did not adhere to Ralphs's speech regulations. In particular, they handed out flyers and stood within five feet of the store's entrance. Ralphs asked the Sacramento Police Department to remove the Union's agents from the College Square Foods Co store, but the police declined to do so without a court order.
In April 2008, Ralphs filed a complaint in Sacramento County Superior Court alleging that the Union's agents, by using the walkway fronting the College Square Foods Co store as a forum for expressive activity without complying with Ralphs's speech regulations, were trespassing on its property. Among other forms of relief, Ralphs sought a temporary restraining order, a preliminary injunction, and a permanent injunction barring the Union's agents from using the College Square Foods Co store property to express their views without complying with Ralphs's regulations prohibiting certain speech activities on its property.
Although the trial court denied Ralphs's request for a temporary restraining order, it issued an order to show cause and set an evidentiary hearing on the application for a preliminary injunction. In response, the Union argued that the Moscone Act, as construed by this court in Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317 (Sears), barred the court from enjoining peaceful picketing on a privately owned walkway in front of a retail store entrance during a labor dispute, and that Ralphs was not able to satisfy section 1138.1's procedural requirements for injunctions against union picketing.
On May 28, 2008, the trial court ruled that the Moscone Act violates the federal Constitution's First and Fourteenth Amendments because it favors labor speech over speech on other subjects. In reaching that conclusion, the trial court found persuasive the reasoning of the federal Court of Appeals for the District of Columbia Circuit in Waremart Foods v. N.L.R.B. (D.C. Cir. 2004) 354 F.3d 870 (Waremart/N.L.R.B.). Regarding section 1138.1, the trial court said it would have found that statute to be unconstitutional as well had it not considered itself bound by a California Court of Appeal's decision, Waremart Foods v. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145 (Waremart/United Food), which held that section 1138.1 does not violate the federal or state constitutional equal protection guarantees. (Waremart/United Food was decided by the Third District Court of Appeal, which also decided this case.) The trial court ordered that an evidentiary hearing be held under section 1138.1 to determine whether Ralphs was entitled to the requested injunctive relief.
After conducting the evidentiary hearing, the trial court denied Ralphs's motion for a preliminary injunction. The court found that Ralphs had "failed to introduce evidence sufficient to carry its burden on any of the factors enumerated in section 1138.1." In particular, the court found that "[t]he evidence did not establish that the Union had committed any unlawful act, or that it had threatened to do so," or "that anything the [Union picketers were] doing would cause any 'substantial and irreparable injury' to the store property, or that public officers were unable or unwilling to furnish adequate protection to plaintiff's property." The court also found that Ralphs had "failed to carry its burden of proof that its rules are reasonable time, place and manner restrictions within the guidelines of Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850." Ralphs appealed.
The Court of Appeal reversed and remanded the matter to the trial court with instructions to grant the preliminary injunction. The Court of Appeal stated that "the entrance area and apron" of the Foods Co store "were not designed and presented to the public as public meeting places," and therefore did not constitute a public forum under the state Constitution's liberty of speech provision. Because these areas did not constitute a public forum, the court concluded, Ralphs "could limit the speech allowed and could exclude anyone desiring to engage in prohibited speech." The Court of Appeal also concluded that both the Moscone Act and section 1138.1, because they give speech about labor disputes greater protection than speech on other issues, violate the federal Constitution's First and Fourteenth Amendments. The Court of Appeal acknowledged that, as to section 1138.1, it had reached a contrary result in Waremart/United Food, supra, 87 Cal.App.4th 145, but it said it had there "applied the rational relationship test because the plaintiff made no argument and presented no authority to apply the strict scrutiny test."
This court granted the Union's petition for review.
II. Discussion A. Public Forum Under the State Constitution
The California Constitution 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." (Cal. Const., art. I, § 2, subd. (a).) It also guarantees the rights to "petition government for redress of grievances" and to "assemble freely to consult for the common good." (Id., art. I, § 3, subd. (a).) Through these provisions, this court has held, our state Constitution protects speech in privately owned shopping centers. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910 (Pruneyard).) A privately owned shopping center may constitute a public forum under the state Constitution because of "the growing importance of the shopping center" (Pruneyard, at p. 907) " 'as a place for large groups of citizens to congregate' " and "to take advantage of the numerous amenities offered" there, and also because of " ' "the public character of the shopping center," ' " which is a result of the shopping center's owner having " ' "fully opened his property to the public" ' " (id. at p. 910 & fn. 5).
This court in Pruneyard stressed that "those who wish to disseminate ideas" in shopping centers do not "have free rein." (Pruneyard, supra, 23 Cal.3d at p. 910.) Pruneyard approvingly quoted the following remarks made by Justice Mosk in an earlier case: " 'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant [shopping center] to assure that these activities do not interfere with normal business operations [citation] would not markedly dilute defendant's property rights.' " (Pruneyard, at pp. 910-911, quoting Diamond v. Bland (1974) 11 Cal.3d 331, 345 (dis. opn. of Mosk, J.).)
Our reasoning in Pruneyard determines the scope of that decision's application. That reasoning is most apt in regard to shopping centers' common areas, which generally have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger, to leisurely congregate for purposes of relaxation and conversation. By contrast, areas immediately adjacent to the entrances of individual stores typically lack seating and are not designed to promote relaxation and socializing. Instead, those areas serve utilitarian purposes of facilitating customers' entrance to and exit from the stores and also, from the stores' perspective, advertising the goods and services available within. Soliciting signatures on initiative petitions, distributing handbills, and similar expressive activities pose a significantly greater risk of interfering with normal business operations when those activities are conducted in close proximity to the entrances and exits of individual stores rather than in the less heavily trafficked and more congenial common areas. Therefore, within a shopping center or mall, the areas outside individual stores' customer entrances and exits, at least as typically configured and furnished, are not public forums under this court's decision in Pruneyard, supra, 23 Cal.3d 899.
Our conclusion is consistent with decisions by California's intermediate appellate courts. We consider here, as examples, the decisions in Albertson's, Inc. v. Young (2003) 107 Cal.App.4th 106 (Albertson's) and in Van v. Target Corp. (2007) 155 Cal.App.4th 1375 (Van).
Albertson's concerned a supermarket in a Nevada County shopping center called Fowler Center, between Grass Valley and Nevada City. (Albertson's, supra, 107 Cal.App.4th 106, 110.) The supermarket's owner sued six individuals who, for the purpose of gathering signatures on voter initiative petitions, had stationed themselves on the walkway immediately outside the supermarket's entrances. The supermarket owner sought injunctive and declaratory relief to stop this expressive activity. The trial court granted an injunction barring the defendants from coming onto the store's premises to solicit signatures on initiative petitions. (Id. at p. 109.) The Court of Appeal affirmed, concluding that under the state Constitution the walkway in front of the supermarket entrance was not a public forum. (Id. at p. 110.) It remarked that the grocery store "does not invite the public to meet friends, to eat, to rest, to congregate, or to be entertained at its premises" (id. at p. 120), nor was the store or its entrance area "a place where people choose to come and meet and talk and spend time" (id. at p. 121).
In Van, two individuals brought class action lawsuits against Target Corporation, Wal-Mart Stores, Inc., and Home Depot, U.S.A., Inc., alleging that the defendant store owners had unlawfully prevented them from gathering signatures in front of their stores, many of which were in shopping centers. (Van, supra, 155 Cal.App.4th 1375, 1378-1379.) The plaintiffs sued as representatives of "a class of individuals who gather voter signatures for initiatives, referenda and recalls and register voters for upcoming elections." (Id. at p. 1379.) They sought damages as well as declaratory, equitable, and injunctive relief. (Ibid.) The trial court denied relief, concluding that the areas in front of the entrances to individual stores located within shopping centers are not public forums for purposes of the state Constitution's liberty of speech provision. (Id. at p. 1381.)
The Court of Appeal in Van affirmed. It concluded that "neither respondents' stores themselves nor the apron and perimeter areas of the stores were comprised of courtyards, plazas or other places designed to encourage patrons to spend time together or be entertained." (Van, supra, 155 Cal.App.4th at pp. 1388-1389.) The court added that "the evidence showed that the stores are uniformly designed to encourage shopping as opposed to meeting friends, congregating or lingering." (Id. at p. 1389.) The court concluded that the entrance and exit areas of the stores in question, which were located within shopping centers, "lacked any public forum attributes." (Id. at p. 1391.)
We agree with these intermediate appellate decisions that to be a public forum under our state Constitution's liberty-of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store's merchandise and advertising displays.
That conclusion does not dispose of this case, however. We consider next the extent to which state labor law, and particularly the Moscone Act and section 1138.1, protect labor speech on private land in front of a business that is the subject of a labor dispute.
B. California's Moscone Act and Section 1138.1
First, we review the language of those statutes. Next, we consider the extent to which they apply to labor picketing on private property in front of doorways used by customers to enter and exit a retail store. Finally, we review the Court of Appeal's conclusion here that, because they give speech regarding labor disputes greater protection than speech on other topics, the Moscone Act and section 1138.1 violate the federal Constitution's First and Fourteenth Amendments. As we explain, we disagree with the Court of Appeal on that point.
The California Legislature enacted the Moscone Act in 1975. (Stats. 1975, ch. 1156, § 2, p. 2845.) It was patterned after section 104 of title 29 of the United States Code, a federal statute that is part of the Norris-LaGuardia Act (29 U.S.C. §§ 101-115), which the United States Congress enacted in 1932. The stated purpose of California's Moscone Act is "to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining, picketing or other mutual aid or protection, and to prevent the evils which frequently occur when courts interfere with the normal process of dispute resolution between employers and recognized employee organizations." (Code Civ. Proc., § 527.3, subd. (a).) It provides that certain activities undertaken during a labor dispute are legal and cannot be enjoined. (Id., § 527.3, subd. (b).) Those activities are:
"(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.
"(2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.
"(3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests." (Code Civ. Proc., § 527.3, subd. (b).)
Expressly excluded from the Moscone Act's protection, however, is "conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity." (Code Civ. Proc., § 527.3, subd. (e).)
Enacted by the California Legislature in 1999 (Stats. 1999, ch. 616, § 1, pp. 4343-4345), section 1138.1 was patterned after section 107 of title 29 of the United States Code; the federal provision is part of the federal Norris-LaGuardia Act. Section 1138.1 prohibits a court from issuing an injunction during a labor dispute unless, based upon witness testimony that is given in open court and is subject to cross-examination, the court finds each of these facts:
"(1) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authoriz[ing] those acts.
"(2) That substantial and irreparable injury to complainant's property will follow.
"(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.
"(4) That complainant has no adequate remedy at law.
"(5) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection." (§ 1138.1, subd. (a).)
3. Application to labor picketing at retail store entrances
As mentioned earlier (see pp. 10-11, ante), the Moscone Act declares that certain specified activities during a labor dispute are legal and cannot be enjoined. (Code Civ. Proc., § 527.3, subd. (b).) Among those activities are "patrolling any public street or any place where any person or persons may lawfully be" (id., subd. (b)(1), italics added) and "[p]eaceful picketing or patrolling" (id., subd. (b)(2)). Our 1979 decision in Sears, supra, 25 Cal.3d 317, considered whether these provisions covered picketing on a privately owned walkway in front of a store's customer entrance, thereby exempting peaceful labor picketing of a targeted business from the laws of trespass. Before discussing our resolution of that issue in Sears, however, it will be useful to review some of this court's earlier decisions.
Since at least 1964, when this court decided Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766 (Schwartz-Torrance), California law has protected the right to engage in labor speech -- including picketing, distributing handbills, and other speech activities -- ...