Thursday, November 16, 2017
Court of Appeal:
Ralphs’ Suit Against Signature Gatherers Is Not a SLAPP
Area Outside Entrances to Markets Is Private Property Where Petitioning Activity Can Be Barred, Appeals Panel Says, Distinguishing 1979 State High Court Decision in Pruneyard
By a MetNews Staff Writer
The Fourth District Court of Appeal, in an opinion certified for publication yesterday, reversed an order granting an anti-SLAPP motion by a company sued by Ralphs Grocery Company for trespass based on gathering signatures on petitions at its supermarkets without permission.
San Diego Superior Court Judge Joan M. Lewis granted the motion, holding that Victory Consultants, Inc. and its co-defendants have met the first prong of the anti-SLAPP in that the conduct in question is protecting petitioning activity, as well as the second prong: probability of success on the merits.
Acting Presiding Justice Richard D. Huffman said in the Oct. 24 opinion reversing Lewis that the defendants/respondents have not shown that the trespass action by plaintiffs/appellants—Ralphs and entities under which it does business—”arises out of protected activity.” He explained:
“Although Respondents argue that Appellants are suing them based upon petitioning activity, which would typically be protected, such activity is occurring on private property. Respondents have provided no persuasive argument that their activity occurring on such private property is protected.”
The signature gathering took place between the parking lots and the entrances to two particular stores that were the subject of the litigation, both in San Diego County.
Huffman acknowledged the California Supreme Court’s 1979 decision in Robins v. Pruneyard Shopping Center where the majority declared that “the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.”
Lewis had skirted Pruneyard in deciding whether petitioning activity was involved, considering it only in connection with the second prong.
“We disagree with this approach,” Huffman wrote, saying that the decision must be addressed “under the first prong of the anti-SLAPP analysis because the critical inquiry is whether protected activity is challenged in the complaint.”
He pointed to a case won by Ralphs in the California Supreme Court in 2012, Ralphs Grocery v. UFCW Local 8, which was not decided in connection with an anti-SLAPP motion. There, the high court held that picketers could be barred from demonstrating outside entrances to a Ralphs store, saying:
“Our reasoning in Pruneyard determines the scope of that decision‘s application. That reasoning is most apt in regard to shopping centers’ common areas, which generally have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger, to leisurely congregate for purposes of relaxation and conversation. By contrast, areas immediately adjacent to the entrances of individual stores typically lack seating and are not designed to promote relaxation and socializing.”
Those areas, the court held, were heavily traveled, and soliciting signatures and passing out handbills and like activity could interfere with business operations. It added that “within a shopping center or mall, the areas outside individual stores‘ customer entrances and exits, at least as typically configured and furnished, are not public forums under this court‘s decision in Pruneyard.”
Shopping Centers Distinguished
Huffman said that Ralphs opens its two stores to the public “so the public can buy goods” and for no other purpose, “in contrast to the multipurpose shopping centers like the one discussed in Pruneyard.”
He noted that all stores owned by Ralphs—which includes Food-4-Less stores—“house aisles of food and food-related goods as well as deli counters, cash registers, and other accoutrements serving customers” and unlike shopping centers “do not offer amenities like plazas, walkways, central courtyards, or other gathering areas.”
The jurist also looked at the focus of the complaint, which alleges “disruptive activity” rather than centering on the signature-gathering activity, itself.
The trespass claim, he said, is based on “setting up tables directly in front of the stores or private sidewalk areas; impeding fire lanes; obstructing customers’ ingress and egress into the stores; standing in the way of fire lanes; following or chasing customers and scaring them; and harassing customers.”
“Clearly, none of this activity would fall under the umbrella of anti-SLAPP protection.”
He said that in light of the defendants’ failure to show that the complaint is predicated on petitioning activity, there is no need to address the second prong, but nonetheless recited the evidentiary basis for a trespass claim, and declared that the plaintiffs “have shown a probability of success on the merits.”
The case is Ralphs Grocery Company v. Victory Consultants, Inc., D070804.
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