Metropolitan News-Enterprise


Thursday, November 3, 2011


Page 3


C.A. Strikes Down Injunction Against Petition Activity at Target Stores


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday overturned a preliminary injunction prohibiting a San Diego-based consulting firm from engaging in petition signature gathering at Target stores across the state.

Div. One, in an unpublished opinion, said Target had failed to show a reasonable probability of prevailing on its cause of action for trespass against Victory Consultants Inc. The court said the retailer had not presented any admissible evidence that Victory’s agents or employees had ever engaged in petition signature gathering activities on Target property. 

Target had sought declaratory and injunctive relief from the alleged signature-gathering activities of Victory employees at its stores, as well as a preliminary injunction to prevent such signature gathering.

To support its contention that the signature gatherers were agents or employees of Victory, Target presented incident reports prepared by Ryan Malette, a protection specialist for Target, in which Malette stated that he regularly prepares such reports, and that they are written near the time of the incident. 

The incident reports show that in 2009, some of the signature gatherers approached by Malette claimed that they “work[ed]” for Victory. In other incident reports during the same general time period, some of the signature gatherers claimed to be “independent” public activists or petitioners who “turn[ed] in”  their petitions to Victory.

Ron Tomczak, Victory’s president, filed a declaration in opposition to the requested injunction in which he stated that Victory has no employees, but retains independent contractors to circulate petitions and gather the signatures of registered voters to qualify a petition for placement on a ballot.

He disclaimed having any supervision or control over the firms and individuals hired to perform these tasks, and denied that Victory has ever circulated petitions or gathered signatures at any Target store anywhere.

Tomczak also insisted that Victory has never directed any of its third-party vendors to obtain signatures at any Target store.

San Diego Superior Court Judge Ronald S. Prager overruled Victory’s foundation and hearsay objections to Malette’s declaration and granted a preliminary injunction barring Victory, its agents, servants, assigns, and persons acting on its behalf or in concert with it, from utilizing any interior space or adjacent apron or sidewalk area owned, operated or controlled by Target anywhere within the State of California for expressive activity, including the soliciting of donations or petition signatures.

Writing for the appellate court, Justice James A. McIntyre said yesterday that the incident reports submitted by Target in support of the requested injunction contained “two layers of hearsay,” the first of which was the signature gatherer’s statement to Malette that he or she “‘work[ed]’ for Victory,” and the second was Malette’s recordation of these statements.

He reasoned that this “second layer of hearsay clearly falls within the business records exception to the hearsay rule,” but the first did not qualify as vicarious party admissions, as Prager had found.

McIntyre explained that “for a statement to qualify as an authorized admission, there must be a foundational showing that the declarant was authorized to speak on behalf of the defendant.”

The justice noted “Target presented no evidence, express or implied, of the signature gatherer’s authority to make a statement on behalf of Victory,” but merely had “improperly used the signature gatherer’s statements that they worked for Victory to prove that the signature gatherers were agents or employees of Victory, and thus qualify the statements as vicarious party admissions made by Victory’s agents and employees.”

  Such a “circular argument is insufficient to show that the signature gatherers were agents or employees of Victory and thus qualify their statements as vicarious admissions made by Victory,” McIntyre said.

Justices Terry B. O’Rourke and Cynthia Aaron joined in the opinion.

The case is Target Corporation v. Victory Consultants, Inc., D057103


Copyright 2011, Metropolitan News Company