Ralphs Grocery v. United Food etc. Union 7/19/10 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C060413

Case Date: 09/30/2010

Preview:Filed 7/19/10 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---RALPHS GROCERY COMPANY, Plaintiff and Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent. C060413 (Super. Ct. No. 34-2008-00008682-CUOR-GDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Reversed with directions. Morrison & Foerster, Miriam A. Vogel, Timothy F. Ryan, and Tritia M. Murata, for Plaintiff and Appellant. Littler Mendelson, William J. Emanuel, and Natalie Rainforth for Employers Group, California Grocers Association, and California Hospital Association, as Amici Curiae on behalf of Plaintiff and Appellant. Davis, Cowell & Bowe, Sarah Grossman-Swenson, Elizabeth A. Lawrence, and Andrew J. Kahn, for Defendant and Respondent. Edmund G. Brown, Jr., Attorney General, J. Matthew Rodriquez, Chief Assistant Attorney General, Manuel M. Medeiros, Solicitor General, Louis Verdugo, Jr., Senior Assistant Attorney General, Angela Sierra and Antonette Benita Cordero, Deputy Attorneys General, as Amici Curiae on behalf of Defendant and Respondent.

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In this case, a union peacefully picketed in front of a grocery store, a private forum, contrary to the grocery stores demands that the union not use the private property for its expressive activities (its "speech," using the term generally). When the grocery store sought injunctive relief against the picketing, the court denied the relief based on Californias statutory scheme making it virtually impossible for an employer to obtain injunctive relief in a peaceful labor dispute. This case presents the question of whether the state, based on the content of the speech, can force the owner or possessor of real property that is not a public forum to give an uninvited group access to the private property to engage in speech. We

conclude that such legislation violates the First and Fourteenth Amendments of the United States Constitution and, therefore, is invalid. Accordingly, we reverse and remand. LEGAL BACKGROUND "The First Amendment to the United States Constitution provides that ,,Congress shall make no law . . . abridging the freedom of speech . . . . This fundamental right to free

speech is ,,among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. [Citations.]" (Balboa Island Village Inn, Inc. "For corporations as

v. Lemen (2007) 40 Cal.4th 1141, 1147.)

for individuals, the choice to speak includes within it the choice of what not to say. [Citation.]" (Pacific Gas &

Electric Co. v. Public Utilities Com. (1986) 475 U.S. 1, 16 [89 2

L.Ed.2d 1, 12].)

Forcing a speaker to host or accommodate

another speakers message violates the hosts free speech rights. (Hurley v. Irish-American Gay Group (1995) 515 U.S.

557, 566 [132 L.Ed.2d 487, 498-499] (Hurley) [state cannot require parade to include group whose message the parades organizer does not wish to send].) The California Constitution protects, among other things, liberty of speech and private ownership of real property. The

liberty of speech clause of 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. or press." A law may not restrain or abridge liberty of speech (Cal. Const., art. I,

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