Costco v. Powers
Filed 1/22/13
Costco v. Powers CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
COSTCO WHOLESALE COPORATION,
Plaintiff and Respondent,
v.
WILLIAM POWERS,
Defendant and Appellant.
2d
Civil No. B236997
(Super.
Ct. No. CV110123A)
(Santa Barbara County)
William Powers, proceeding in
denying his motion to strike causes of action under the anti-SLAPP statute,
Code of Civil Procedure section 425.16.
complaint filed by Costco Wholesale Corporation, respondent. We affirm.
Factual and Procedural
Background
In February 2011 respondent filed a
complaint alleging that appellant had trespassed upon its property at its
warehouse store in San Luis Obispo. Appellant had engaged in "picketing at
its gas station area while handing out leaflets to [respondent's]
members." In addition, appellant
had "disrupted store operations by intimidating members and employees and
by interfering with vehicular traffic into and out of the gas station
area." When respondent's employees
informed appellant that "its policy prohibits persons . . . from
soliciting on property owned or operated by [respondent]," appellant
"refused to leave."
The complaint consisted of three causes
of action. The first was for
[respondent] may prohibit groups or individuals from using its private property
for expressive activity." The
second cause of action was for trespass.
It sought damages for "lost substantial customer
goodwill." The third cause of
action sought to enjoin appellant from trespassing upon respondent's property.
Respondent applied for a temporary
restraining order (TRO). In support of
the application, respondent submitted the declaration of Jay Doughty, the
general manager of respondent's San Luis Obispo store. Doughty declared: The San Luis Obispo store
"is a stand-alone store surrounded by a parking area. The [store] has a gas station area towards
the rear of the parking area.
[Respondent] has exclusive control over this structure, its
entrance/exit ways, the surrounding sidewalk/apron areas, and the gas station
area." Respondent "has a
policy prohibiting all solicitors from engaging in any expressive activities on
store premises."
Starting in January 2011, appellant had
"hostile" encounters with store employees concerning respondent's gas
prices. After appellant said that
Doughty and the assistant store manager might " 'turn up dead,' "
respondent canceled his membership. In a
letter to appellant, respondent wrote, "We will deem your presence on any
Costco Wholesale property . . . to be trespass . . . ." Since the cancellation, appellant "has
been picketing with a sign nearly every day near the gas station area . . .
. The sign states that [respondent] does
not have the lowest gas prices in town."
Appellant's "standard practice is to stand at the gas station with
his sign and engage in conversation with [respondent's] members regarding
[appellant's] complaints about [respondent's] prices." "I have observed [appellant] standing
directly in the flow of traffic into and out of the gas station area, including
in the only lane that leads into the gas station area."
On February 24, 2011, appellant stipulated to the issuance of
a TRO prohibiting him from protesting on respondent's property, including
"anywhere within the sidewalks, interior, gas station area, and parking
lots" of the store. In April 2011
the court reissued the TRO as a preliminary injunction.
In May 2011 appellant filed an anti-SLAPP
motion to dismiss all of the causes of action.
In opposition to the motion, respondent submitted the declaration of
Ronnie De Brum, an assistant manager of respondent's San Luis Obispo store. De Brum declared: Since the issuance of the
TRO, appellant "has returned to protest near the Costco warehouse's gas
station area nearly every day.
[¶] . . . I have personally seen [appellant] w[a]nder onto
[respondent's] private property while he is protesting." Appellant "has used a loud bullhorn to
communicate with [respondent's] members at the gas station." "Many customers ask store management why
[respondent] allows [appellant] to yell at them through the bullhorn while they
wait for gas. Customers complain every
day that [appellant] is standing in or blocking traffic into the gas station
area. Some have said that they fear they
will run over [him] with their car."
Appellant "brings a sign that says 'Costco gas is a Rip Off' and
passes out flyers to [respondent's] customers while they sit in their cars
waiting for gas." As an exhibit to
his declaration, De Brum attached a photograph "showing [appellant]
interacting with a . . . member in the gas station waiting area and handing him
a flyer."
Respondent
also submitted the declaration of Anthony Sa, the supervisor of the gas station
at the San Luis Obispo store. Sa declared: In July 2011 appellant blocked a
car from entering the gas station. The
female driver motioned to appellant to get out of the way. "At this point, [appellant] approached
her car, stuck his bullhorn in the . . . car and continued to talk through
it. Based on my knowledge of
[respondent's] property line, [appellant] was clearly on [respondent's]
property during this exchange."
"SLAPP"
is an acronym for 'strategic lawsuit against public participation.' [Citation.]" (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 815, fn. 1.) "A SLAPP suit . . . seeks to chill or
punish a party's exercise of constitutional rights to free speech and to
petition the government for redress of grievances. [Citation.]
The Legislature enacted Code of Civil Procedure section 425.16—known as
the anti-SLAPP statute—to provide a procedural remedy to
of lawsuits that are brought to chill the valid exercise of constitutional
rights. [Citation.]" (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
"A
defendant opposing a SLAPP claim may bring a special motion to strike any cause
of action 'arising from any act of that person in furtherance of the person's
right of petition or free speech under the United States Constitution or
California Constitution in connection with a public issue.' (§ 425.16, subd. (b)(1).)" . . .
[¶] An anti-SLAPP motion involves
a two-step process." (
(2011) 192 Cal.App.4th 1381, 1387.)
First, "[t]he defendant has the burden of making a prima facie
showing that one or more causes of action arise from an act in furtherance of
the constitutional right of petition or free speech in connection with a public
issue. [Citation.] . . . The motion must
be denied if the required prima facie showing is not made by the moving
defendant. [Citation.]" (
If the trial court finds that the
defendant has made the requisite prima facie showing, it then proceeds to the
second step, which is to determine " 'whether the plaintiff has
demonstrated a probability of prevailing on the claim.' [Citation.]
'Only a cause of action that satisfies both prongs of the
anti-SLAPP statute—i.e., that arises from protected speech or petitioning and
lacks even minimal merit—is a SLAPP, subject to being stricken under the
statute.' [Citation.]" (Oasis
West Realty, LLC v. Goldman, supra,
"In the second prong of the anti-SLAPP
analysis the plaintiff's burden of demonstrating a probability of prevailing is
subject to a standard similar to that used in deciding a motion for nonsuit,
directed verdict, or summary judgment.
[Citation.] The court determines
only whether the plaintiff has made a prima facie showing of facts that would
support a judgment if proved at trial.
[Citation.] We grant the motion
if the plaintiff fails to produce evidence to substantiate his claim or if the
defendant has shown that the plaintiff cannot prevail as a matter of law. [Citation.]" (Siam
v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.)
The
trial court issued a written ruling. It
noted that respondent "does not dispute [appellant's] . . . argument that
he is exercising his constitutional right
of free speech in connection with an issue of public interest." Accordingly, the trial court proceeded to the
second step of the anti-SLAPP analysis: whether respondent had demonstrated a probability
of prevailing on the merits. The court
concluded that respondent had satisfied its burden. The court found that respondent had
"present[ed] credible evidence that [appellant] had been picketing on its
private property." In addition,
respondent had "present[ed] credible evidence that [appellant] continues
to picket and approach vehicles that are waiting in line at [respondent's] gas
station."
"[W]e independently determine whether the
. . . plaintiff has demonstrated a probability of prevailing on the merits of
the claim. [Citations.] We consider 'the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense
is based.' (§ 425.16, subd.
(b)(2).) 'However, we neither
"weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant's evidence
only to determine if it has defeated that submitted by the plaintiff as a
matter of law." '
[Citations.]" (
Cal.App.4th 566, 573-574.)
Since
we must accept as true the evidence favorable to respondent, we accept as true
evidence that appellant regularly came onto respondent's property to protest
against its gas prices. Appellant
insists that he "was picketing on public streets not controlled by
[respondent]." But he has not
referred us to any evidence in the record that, as a matter of law, defeats
respondent's evidence to the contrary. (
Respondent has made a prima facie showing of the elements of
a cause of action for trespass. Those
elements are (1) the plaintiff's ownership or control of the property; (2) the
defendant's intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) actual
harm; and (5) the defendant's conduct was a substantial factor in causing the
harm. (See CACI No. 2000.) Although appellant knew that he did not have
permission to enter respondent's property, it is reasonable to infer that he
intentionally entered the property to protest against respondent's gas
prices. Appellant's protest activity
on respondent's property harmed respondent by harassing and intimidating its
customers and by obstructing the flow of traffic into and out of the gas
station. Even if respondent were unable
to establish actual harm, it would still be entitled to nominal damages: "[A]n action for trespass will support an award of
nominal damages where actual damages are not shown. [Citation.]" (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.)
"As a general rule, landowners and tenants have a right
to exclude persons from trespassing on private property; the right to exclude
persons is a fundamental aspect of private property ownership. [Citation.]
An injunction is an appropriate remedy for a continuing trespass. [Citation.]" (Allred
v. Harris (1993)14 Cal.App.4th 1386, 1390.)
Thus, exercising our independent review, we conclude that respondent
has demonstrated a probability of prevailing on the merits on its causes of
action for trespass and injunctive relief.
Respondent has
also demonstrated a probability of prevailing on the merits on its cause of action
for declaratory relief. Respondent has
the right to prohibit all expressive activity, including appellant's protests
against its gas prices, at its stand-alone stores. (Costco Companies, Inc. v.
Gallant (2002) 96 Cal.App.4th 740,
754-755.) Such "stand-alone stores, while popular and open to the public,
are not public forums which require that their owners permit expressive
activity." (Id., at
p. 754.) We reject appellant's
argument that respondent is not entitled to declaratory relief because there is
no "current controversy" concerning this issue. The trial court, therefore, did not err in
denying appellant's anti-SLAPP motion.
The
order denying appellant's anti-SLAPP motion is affirmed. Respondent shall recover its costs on appeal.
NOT TO BE
PUBLISHED.
YEGAN,
Acting P.J.
We concur:
PERREN.
J.
HOFFSTADT,
J.*
*Judge of the Superior Court for the L. A. Judicial District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution
>
Dodie A. Harman, Judge
Superior Court County of San Luis Obispo
______________________________
William
Powers, in pro per, Appellant.
Miriam
A. Vogel, David F. McDowell, Hailly T. Korman; Morrison & Foerster, for
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Code
of Civil Procedure.
