Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8

I. FACTS

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

2 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…

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.l’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…

I write separately to address further the rights set forth in the Moscone Act (Code Civ. Proc., § 527.3), to provide guidance to the lower courts and the parties on remand.

As we explained in Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317 [ 158 Cal.Rptr. 370 , 599 P.2d 676 ] (Sears), the Moscone Act was a product of compromise. Although drafted by union attorneys, it was modified at the behest of supporters of management. (Sears, at p. 323.) In particular, the bill was amended to provide that the act *1105 “shall be strictly construed in accordance with existing law governing labor disputes,” and “[i]t is not the intent of this section to permit 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.” (Sen. Bill No. 743 (1975-1976 Reg. Sess.) § 2, as amended Aug. 26, 1975; see now Code Civ. Proc., § 527.3, subds. (a), (e).) Therefore, in determining the scope of the conduct that is lawful under the Moscone Act, it is necessary to consider not only the rights and limitations expressly set forth in the…

I join the court’s opinion and write separately to provide additional context in support of the conclusion that the two statutory provisions at issue in this case—Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1)—do not violate the First or Fourteenth Amendments to the United States Constitution. I also briefly discuss the scope of labor activity protected by the Moscone Act in response to the separate opinions of the Chief Justice and Justice Chin.

I.

In challenging the constitutionality of the Moscone Act and section 1138.1, Ralphs Grocery Company (Ralphs) does not and cannot argue that its own freedom of speech is burdened. Rather, it seeks to assert the First Amendment rights of hypothetical third party speakers who might like to speak on Ralphs’s private property but whose right to do so is not protected by the Moscone Act or section 1138.1. But invalidating those statutes would have no effect on the ability of such hypothetical third parties to speak; Ralphs may eject such speakers from its property under state trespass law whether or not the Moscone Act or section 1138.1 remains on the books. (See maj. opn., ante, at p.…

I agree with the majority that the privately owned walkway in front of the customer entrance to the grocery store is not a public forum under Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850 [ 69 Cal.Rptr.3d 288 , 172 P.3d 742 ] (Fashion Valley) and Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ], (Maj. opn., ante, at pp. 1090-1093.) I also agree that cases such as Van v. Target Corp. (2007) 155 Cal.App.4th 1375 [ 66 Cal.Rptr.3d 497 ] and Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106 [ 131 Cal.Rptr.2d 721 ] correctly allowed the store owners of those cases to bar speech activities on their premises. (Maj. opn., ante, at pp. 1092-1093; see Fashion Valley, supra, at p. 880 (dis. opn. of Chin, J.).) The majority opinion also implicitly reaffirms the correctness of a series of decisions holding that antiabortion protesters have no right to engage in speech activities on the privately owned parking lots and walkways of medical clinics that provide abortion services. (Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641 [ 39 Cal.Rptr.2d 189 ]; Allred v. Harris (1993) 14 Cal.App.4th 1386 […