Grocery Co. v. U. Food and Commercial Workers Union
Filed
4/10/13 Ralphs Grocery Co. v. U. Food
and Commercial Workers Union CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
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)
APPEAL from
a judgment of the Superior Court of
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.
-ooOoo-
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.
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
involved carrying placards, distributing leaflets, and attempting to engage Foods
Co shoppers in conversations to inform them that Foods Co workers did not
receive the benefits they would under a union contract. In addition, there were allegations of
confrontations between picketers and store employees and of occasional
aggressive efforts by picketers to give handbills to customers who were not
willing to receive them.
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 (the Moscone Act) and Labor Code section
1138.1 (section 1138.1), precluded it from issuing a preliminary
injunction. Appellant filed a timely
notice of appeal.
In an
earlier majority opinion filed in this appeal, we reversed.
Grocery Company v. United Food & Commercial Workers Union Local 8 (Jan.
27, 2011) F058716 [we will refer to this opinion in the format “Slip opn. at p.
__â€].) Thereafter, the Supreme Court
granted appellant’s petition for review and held the matter pending disposition
in a similar case arising from the Third Appellate District,
Commercial Workers Union Local 8, review granted September 29, 2010,
S185544. On December 27, 2012, our
Supreme Court issued its decision in Ralphs
Grocery Co. v. United Food & Commercial Workers Union Local 8 (2012) 55
Cal.4th 1083 (Ralphs). Subsequently the Supreme Court transferred
the present case to this court with directions to vacate our previous decision
and to reconsider the cause in light of its decision in Ralphs. We now vacate our
earlier opinion and, the cause having been submitted pursuant to California
Rules of Court, rule 8.256(d)(2), we issue this opinion.
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 … injunctionâ€
prohibiting such activity. (
Labor Code
section 1138.1, subdivision (a), enacted in 1999, 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.
Our
previous majority opinion was based on two premises: that the two statutes, which we concluded
were “not an incidental part of a broader scheme of regulation of labor
relations,†(slip opn. at p. 8) discriminated between speech concerning labor
disputes and speech addressing all other content (id. at pp. 8-9); and that, because the statutes discriminated based
on the content of the speech involved, the distinctions made by the statutes
were subject to strict scrutiny (id.
at p. 9).
In Ralphs, the Supreme Court held that the Moscone Act and section
1138.1 were “components of a state statutory system for regulating labor
relations,†and that neither statute restricted or abridged speech. (Ralphs,
supra, 55 Cal.4th at pp. 1088, 1100, 1101, 1102.) The court found the statutes did not
discriminate based on content because invalidating them “would not remove any
restrictions on speech or enhance any opportunities for peaceful picketing or
protest ….†(Id. at p. 1101.) Further,
after reviewing prior California cases interpreting the Moscone Act, and
federal labor law and First Amendment cases (Ralphs, supra, 55 Cal.4th at pp. 1095-1103), the court concluded
“it is well settled that statutory law—state and federal—may single out
labor-related speech for particular protection or regulation, in the context of
a statutory system of economic regulation of labor relations, without violating
the federal Constitution.†(
interest in labor relations and in removing judicial intervention. (Ibid.) The Supreme Court concluded: “These legislative judgments provide a
sufficient justification for the provisions of California’s Moscone Act and
section 1138.1 that single out labor-related speech for special protection from
unwarranted judicial interference.†(
federal Constitution’s general prohibition on content-based speech
regulation.†(Ibid.) Thus, to the extent
the two acts distinguish between labor related speech and all other speech,
that distinction must be analyzed under the rational basis test applicable to
economic regulation, not under the strict scrutiny test applied to
content-based discrimination, and the acts meet the rational basis test. (See id.
at p. 1102.)
As both the majority opinion in
and 1097, and Justice Liu’s concurring opinion (id. at p. 1113) point out, the Moscone Act and section 1138.1
permit and protect peaceful picketing.
As we noted in our previous opinion, the record contains allegations, so
far unproven, that the union pickets were aggressive in some instances, both
with Food Co’s employees and its patrons.
(Slip opn. at p. 3 & fn. 1.)
The present appeal was not from a final judgment after trial in this
case, but from an order denying a preliminary injunction. As a result, the matter is still pending in
the trial court. Our affirmance of the
order denying a preliminary injunction does not preclude further proceedings,
including amendment of the complaint and other efforts by appellant to comply
with section 1138.1, and of the parties to bring the matter to trial in
accordance with the standards established in section 1138.1. To that end, we will remand the matter to the
trial court for further proceedings.
DISPOSTION
The order
denying a preliminary injunction is affirmed.
The matter is remanded to the trial court for further proceedings not
inconsistent with this opinion.
Respondent is awarded costs on appeal.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
KANE, J.
name="_ftn1" title="">[1] Justice
Wiseman filed a dissenting opinion.
