RALPHS GROCERY v. UNITED FOOD & COMMERCIAL WORKERS UNIONAppellant’s Answer to Petition for ReviewCal.September 15, 2010NO. 8185544 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RALPHS GROCERY COMPANY, Plaintiff and Appellant, SUPREME COURT ifand App SHED v. . SEP LL 2010 UNITED FOOD AND COMMERCIABhegerick «. Orica Clerk WORKERS UNION LOCAL8, Defendant and Respondent. Deputy After a Decision by the Court of Appeal, Third Appellate District, Case No. C060413 ANSWERTO PETITION FOR REVIEW MIRIAM A. VOGEL(SBN 67822) TIMOTHY F. RYAN (SBN 51488) TRITIA M. MURATA(SBN 234344) MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213.892.5200 Facsimile: 213.892.5454 Attorneysfor Plaintiffand Appellant, RALPHS GROCERY COMPANY SERVICE ON ATTORNEY GENERAL REQUIRED CALIFORNIA RULES OF COURT, RULE 8.29(c)(1) NO. 8185544 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RALPHS GROCERY COMPANY, Plaintiffand Appellant, Vv. UNITED FOOD AND COMMERCIAL, WORKERS UNION LOCAL8, Defendant and Respondent. After a Decision by the Court of Appeal, Third Appellate District, Case No. C060413 ANSWERTO PETITION FOR REVIEW MIRIAM A. VOGEL (SBN 67822) TIMOTHYF. RYAN (SBN 51488) TRITIA M. MURATA(SBN234344) MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213.892.5200 Facsimile: 213.892.5454 Attorneysfor Plaintiffand Appellant, RALPHS GROCERY COMPANY SERVICE ON ATTORNEY GENERAL REQUIRED CALIFORNIA RULES OF COURT,RULE 8.29(c)(1) TABLE OF CONTENTS Page TABLE OF AUTHORITIES0000... ce ccccccceccessessseesseenseseesesseessecesseeesseeseneens ili INTRODUCTION|... ceccesceseeeseeseeeseceseesneeeecesesseseeesnesasecsesaeeeseesseeseeeaees 1 STATEMENT OF THE CASE...cccccccscessseccscessecsseeasecsseccseesessessseesseeenees 2 A. Foods Co is the quintessential modestretail establishment, and College Squareis not, by any definition, a Pruneyard shopping mall................ 2 B. The Union’s picketing 0.0.0... cccccccscccsseceseeesseesesseeneees 3 C. — The trial court proceedings «0.0... cceeeeeteseneeseenenes 4 D. The Court of Appeal’s Opinion ..........cccccseeceseeeneeees 5 E, A note about the related case involving Foods Co’s Fresno Storeosese eeeetegeeeeenseseeteaeeraeeas 7 THE REASONS WHY REVIEW SHOULDBEDENIED............cee 7 I. FOODS CO’S SACRAMENTOSTOREIS NOT THE FUNCTIONAL EQUIVALENT OF A PUBLIC FORUM........eececccececeeessceceesseeseceneeesseessaeesaeeesseesstess 7 Il. THE SPECIAL PROTECTION AFFORDED TO LABOR ACTIVITY BY THE MOSCONE ACT AND SECTION 1138.1 IS UNCONSTITUTIONAL CONTENT-BASED DISCRIMINATION 0... ceecceecseereeees 9 A. The Moscone ACct.....c.cessccssseseseeseseeeseeeeeeseseeeeseesseeees 9 1. Mosley and Carey vo.cceeccccccccccccesssccescesseesestnneees 10 2. Sears IT and its progeny...........ccccccesceesseeeeees 1] 3.0 D.C. Waremart..cccccccccccccccttecereettseetseeensensees 12 B. Section L138.) oo. ccceesccccsecsseeeeeseesstecseesssesseesenseeens 13 C. The sky is not falling 00.0... eecccsccesseeessreeesseeessseees 14 TABLE OF CONTENTS (continued) Page Ill. REVIEW SHOULD BE DENIED NOW BECAUSE AN IDENTICAL CASE IS PENDING IN THE FIFTH APPELLATE DISTRICT, AND THIS COURT CAN DECIDE LATER WHETHER REVIEW OF THESE ISSUES IS WARRANTED 0.eeeeeeeseeeeenneetseeeseneeerens 16 CONCLUSION 0.0.0. ecccccccccccecceecesnnneecessneceeessneesessareseeesenenaneesnsesessneeees 17 CERTIFICATE OF COMPLIANCE.........ccecccccscscccseeeecenseeerenaeseeneesesaeeenes 18 i TABLE OF AUTHORITIES Page(s) CASES Alaska Barite Co. (1972) 197 N.L.R.B. 1023 ...cccceccccccscccesesseesneeeesseeceseeesseeessnteesseesessaase 15 Albertson's, Inc. v. Young (2003) 107 Cal.App.4th 106 0.0... ceeeeeceeceeeseeeeeeeeeeecneceseneeeneeeaeeraas 5,8 Bank ofStockton v. Church ofSoldiers (1996) 44 CalApp.4th 1623 0... ceecceeecceeeeeeeeceeneeeseeseaeeeseeesenetneeeesnees 13 BoardofSupervisorsv. Local Agency Formation Com. (1992) 3 Cal.4th 903 oo. ccccecsscccsceessceesseeceeereeaeesceesseesinessaeeeseeeneeeeseees 11 Carey v. Brown (1980) 447 U.S. 455 ooo ccccccsccssseeesseseneesseteseeeaeecsaeeeaeersneereatenes passim Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 11820.cceceeececesseeeseeesseceseceeecseeeeeevesesseeseaeeas 11 Costco Companies v. Gallant (2002) 96 CalApp.4th 740.00... ecceeeeceseseeeteeseeeesseeentetaeessareessessnesenegs 5,8 Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850 oo... cececceeesececeeeceerecseeseeeteeeeseeeeateeaes 3,5, 7, 15 Hudgens v. NLRB (1976) 424 U.S. S07 ...cecccccccccsseesseessneceseseeseecerseeseeeseesteeseneeeretseetens7,14 In re Lane (1969) 71 Cal.2d 872cc cccceccecsssesssessseeeseeeseeeseeeseterneeeneees 6,9, 11, 12 Lechmere, Inc. v. NLRB (1992) 502 U.S. 527 ooo ecccesccesceesseceeeeseneeeseeceseeenseeeseecateesaeesesanes 14,15 MRestaurants, Inc. v. San Francisco Local Joint Executive Board (1981) 124 Cal.App.3d 666 0.0... ccecceeccesecetsecseeereeeneeenaneeenees 6, 10, 11 ill TABLE OF AUTHORITIES (continued) Page(s) Marsh v. Alabama (1946) 326 U.S. SO] oeeeccceeseecseeneecsecseeenecetseeseaeerseeaeeseaseatesees 8, 15 NERB vy. Babcock & Wilcox Co. (1956) 351 U.S. LOS occecceeeceeeetseeeseesesseesseeseeesneesseeneeerseeneceas 14, 15 NLRB y. Lake Superior Lumber Corp. (6th Cir. 1948) 167 F.2d 147 oo ccccesscessessecseesecesneeseeseestseseesnaeentens 15 NLRB v. S & H Grossinger’s, Inc. (2d Cir. 1967) 372 F.2d 26 woo. cecceccececcececececeeeeeceeeeeseeeeeetsaeeeeententenees 15 Police Department v. Mosley (1972) 408 U.S. 92 ooo cecccscecssessseessseseececseeseeeeseeeseecsesseneessatenseens passim Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 oo. .eeeecccececsseeseeeeceseesecsaeceseeseaeesseesaeeesanenes passim Schwartz-Torrance Investment Corp.v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766...eee ceecesceseeeceseeereteseseneeeteeeeenenens 6,9, 11, 12 Sears, Roebuck & Co. v. San Diego County District Council ofCarpenters (1979) 25 Cal.3d 317 oo. ceeccecceeecececeeeneececseeseeteaeeeeeeesnesseeenens 6, 9, 11, 14 Sears, Roebuck & Co.v. San Diego County Dist. Council ofCarpenters (1978) 436 U.S. 180 oeee ceecsseeseeeeeeeeeeeesesesneesenaseneeensaneeas 12, 14, 15 Senn v. Tile Layers Protective Union (1937) 301 U.S. 468 oo. eeccececeececeseeeeceeceseeeasetaeseesaeereedeneeeeersees 11, 12 Slevin v. Home Depot (N.D. Cal. 2000) 120 F.Supp.2d 822.0... eeeecececeseneeenecneeneeneeeneeeees 5,8 Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469 ooo...eeeesecesceeeeeeeeeesneeseneeeeaesneessaeeveesenes2 1V TABLE OF AUTHORITIES (continued) Page(s) Thornhill v. Alabama (1940) 310 U.S. 88 occcecccsscscccsseccsssecssseersseecseeeeceseseesseeenrseeeesaeees 15 Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425 oocccccccccccceesseceteereceessseenaeesessseesesees 5,8 UFCW, Local 919 vy. Crystal Mall Assocs., L.P. (Conn. 2004) 852 A.2d 659 voc cccccccccesecssesseccsssesseecesseeesstensteesecesseeesee 7 Van v. Target Corp. (2007) 155 CalApp.4th 1375 .....ccccccesesseseessssssseeeseseeesessnsesseeenaes 5,8 Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870... cccccccscccseessceesecesecessseetsneeesseesatens 10, 12 Waremart Foodsy. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145occccessceeesscceseceseeeesseeseeessressees passim Ysursa v. Pocatello Education Association (2009) U.S. [172 L.Ed.2d 770]... cceeeceteceteeteceeeeseeeteeeees 16 CONSTITUTIONAL PROVISIONS United States Constitution, Fourteenth Amendment................cceseecceeeeees4 STATUTES Code Civil Procedure, Section 527.3 .......ccccecsssccseesnseceeeeeesseseesanees4,9, 15 Labor Code, Section 1138.1... ecceceeeeeeeeeeenereeneeeneeereneesseeneatenanens passim INTRODUCTION Foods Co, a privately-owned grocery store, is not by any reasonable definition a Pruneyard-type shopping center. It is the quintessential modest retail establishment expressly excluded from Pruneyard’s purview. Cm = The choice in this case was between (i) allowing Foods Co to obtain injunctive relief compelling a union to follow Foods Co’s reasonable time, place and manner rules for expressive activity, and (ii) compelling Foods Co to give the union free rein on Foods Co’s private property to picket and distribute leaflets wherever and wheneverthe picketers wanted to be. Ina well reasoned and carefully crafted opinion based on established legal principles and the actual facts of this case (not those conjured for the petition for review), the Third Appellate District resolved this dispute in Foods Co’s favor. This Court should do likewise by denying the Union’s petition. STATEMENT OF THE CASE A. Foods Cois the quintessential modestretail establishment, and College Squareis not, by any definition, a Pruneyard shopping mall. Foods Co’s Sacramentostore is located in College Square, a modest commercial development that also houses a few small stores and some empty storefronts. (JA 258-260, 368-369) People go to Foods Co to shop, not to linger, socialize, congregate or be entertained. There are no movie theaters or other forms of entertainment in College Square, nothing to entice anyone (not even teenagers) to use this private property as a gathering place. (JA 41, 368-369.) The Union’s fanciful suggestion that this modest retail establishment somehow resembles an old-fashioned town square is entirely imagined, not real. The “three common courtyards” (Pet. 9) are “courtyards” in name only and, most importantly, there is no evidence that the Union ever used or intended to use these areas for its expressive activities. (Slip Opn., p. 7.) As the Court of Appeal explained, the Union did not use these so-called courtyards — all of its expressive activities took place at Foods Co’s entrance and on the apron around the entrance — areas that “were not designed and presented to the public as public meeting places” but were, instead, areas where Foods Co,“as a private property owner, could limit the speech allowed and could exclude anyone desiring to engage in prohibited speech.” (Slip Opn., p. 14.) Whatever issues there are in this case, they are issues related to modest retail establishments, not to giant shopping centers. (Compare Snatchko vy. Westfield LLC (2010) 187 Cal.App.4th 469 [No. C059985, filed Aug. 11, 2010 by the Third District, Pet. for Rev. to be filed Sept. 20, 2010; Westfield’s Galleria, a true Pruneyard mall, has more than a million square feet of retail space, and more than 130 tenants, including four major department stores]; and see Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard) [21-acre mall with 65 shops, 10 restaurants, and a cinema]; Fashion Valley Mall, LLC v. National Labor Relations Ba. (2007) 42 Cal.4th 850 (Fashion Valley) [six major department stores, an 18-theater movie complex, and nearly 200 shops].) The unremarkable bottom line is that people visit Foods Co to buy groceries. B. The Union’s picketing. Although many of Foods Co’s stores have employees whobelong to labor unions, the employees of the Sacramento Foods Co store chose to remain non-union. (RT 47-50; JA 41, 51.) When the Sacramento store opened in July 2007, Union picketers arrived to encourage people not to shop at Foods Co because it is not a union store. (Slip Opn., p. 8.) Although College Square is bounded onail four sides by public streets and sidewalks (JA 62), the picketers walked back and forth in front of Foods Co’s doors, carrying signs and handing out flyers (Slip Opn., p. 8), and Foods Co’s customers had to walk around them to get in and out of the store (JA 41-43). The picketers returned five days each week and engaged in the sameactivities for about eight hours each day. (Slip Opn., p. 8.) In January 2008, Foods Co implemented new time, place and mannerrules for expressive activity and gave copies of the rules to the Union. (Slip Opn., p. 8.) The picketers ignored the rules. (Slip Opn., p.8.)' Foods Co’s customers complained that the picketers blocked their way and yelled at them (RT 13-14; JA 42-44) but law enforcement refused Foods Co’s request to remove the picketers from the property. (Slip Opn., pp. 8-9.) Although other organizations and individuals are allowed to engage in expressive activity on Foods Co’s private property (Pet. 10-11), they are all required to comply with Foods Co’s rules — and unlike the Union, most do comply. If they don’t, they are asked to leave. (JA 46-47; RT 25.) C. Thetrial court proceedings. In April 2008, Foods Co sued the Union for declaratory and injunctive relief and for trespass. (JA 1-10.) Foods Co’s motion for a preliminary injunction was denied, but only after the trial court explained that in its view (1) the Moscone Act (Code Civ. Proc., § 527.3), by providing special protections for labor activities, constitutes impermissible content-based discrimination in violation of the First and Fourteenth Amendments to the United States Constitution, and (2) that Labor Code Section 1138.1, which imposes Draconian burdens on injunctive relief against labor activity, is similarly flawed but (3) nevertheless enforceable ' The rules prohibit the distribution ofliterature, physical contact with any person, and the display of signs larger than two feet by three feet. The rules also prohibit speech within 20 feet of the entrance to the store, and ban all speech during specified hours and on specified days before designated holidays. (Slip Opn., p.8.) All references to section 527.3 are to that section of the Code of Civil Procedure. 3 All references to section 1138.1 are to that section of the Labor Code. because the Sacramento Superior Court was bound by the Third Appellate District’s decision upholdingthat statute. (Waremart Foods vy. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145 (Cal Waremart),) (Slip Opn., p. 12.) Foods Co appealed. D. The Court of Appeal’s opinion. In a thorough and thoughtful opinion, the Third Appellate District reversed and remanded the causeto the trial court with directions to grant the preliminary injunction requested by Foods Co. First, the Court of Appeal rejected the Union’s contention that the entrance and apron area at the front of Foods Co’s store are public fora, distinguished Foods Co’s modestretail establishment from large shopping centers such as Pruneyard and Fashion Valley (Slip Opn., pp. 11-16) and found Foods Co’s Sacramentostore “indistinguishable from the stand-alone stores” that are the subject of a number of intermediate appellate court decisions. (Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106 (Albertson’s); Costco Companies v. Gallant (2002) 96 Cal.App.4th 740 (Costco); Slevin v. Home Depot (N.D. Cal. 2000) 120 F.Supp.2d 822 (Slevin); Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425 (Trader Joe’s); Van v. Target Corp. (2007) 155 Cal.App.4th 1375 (Van).) As the Court of Appeal put it, because the entrance area “was not a public forum, [Foods Co], as a private property owner, could limit the speech allowed and could exclude anyone desiring to engage in prohibited speech.” (Slip Opn., p. 14.) Second, the Court of Appeal separately considered the constitutionality of the Moscone Act and section 1138.1. Relying on Police Department v. Mosley (1972) 408 U.S. 92 (Mosley) and Carey v. Brown (1980) 447 U.S. 455 (Carey), both of which invalidated laws favoring labor speech overall other speech, the Court of Appeal declared both California statutes unconstitutional (Slip Opn., p. 16-34) — the Moscone Act because it impermissibly “denies [owners of private property] involved in a protest over a labor dispute access to the equity jurisdiction of the courts even though it does not deny such access if the protest does not involve a labor dispute” (Slip Opn., p. 22), and section 1138.1 because it impermissibly “favors speech relating to labor disputes over speech relating to other matters” by adding “requirements for obtaining an injunction against labor protestors that do not exist when the protest, or other form of speech, is not labor related.” (Slip Opn., p. 28.) Because there is no compelling state interest to afford special protection to labor speech, neither statute can withstand strict scrutiny review. Third, the Court of Appeal declined to follow In re Lane (1969) 71 Cal.2d 872 (Lane), Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 (Schwartz-Torrance), Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1979) 25 Cal.3d 317 (Sears I), M Restaurants, Inc. v. San Francisco Local Joint Executive Board (1981) 124 Cal.App.3d 666 (M Restaurants), and its own decision in Cal Waremart, 87 Cal.App.4th 145, primarily because none of those cases considered the First Amendment implications of Carey and Mosley. (Slip Opn., pp. 16, 23-24.) Given the effect of the Court of Appeal’s decision, it is hardly surprising that the Union filed the pending petition for review. But given the soundnessofthat decision, Foods Co submits that the petition should be summarily denied. E. A note aboutthe related case involving Foods Co’s Fresnostore. A virtually identical lawsuit — same Union, same size and type of Foods Co store, same picketing, same rules, same issues —- is pending in the Fifth Appellate District and oral argument is set for next month (October). (Ralphs Grocery Company v. United Food and Commercial Workers Union Local8, 5th Civ. No. F058716.) (See Part II, post.) THE REASONS WHY REVIEW SHOULD BE DENIED As we will now explain, the Court of Appeal’s decision is correct and should not be disturbed. Review should be denied. I. FOODS CO’S SACRAMENTO STORE IS NOT THE FUNCTIONAL EQUIVALENT OF A PUBLIC FORUM. Asthe Court of Appeal correctly held, Foods Co’s Sacramentostore is not the functional equivalent of a traditional public forum within the meaning of Pruneyard, 23 Cal.3d 899 or Fashion Valley, 42 Cal.4th 850. Leaving to one side the fact that California is one of only five states imposing quasi-public obligations on property that is otherwise privately owned and open to the public only for commercial purposes (Fashion Valley, 42 Cal.4th at pp. 870, 874-876, dissenting opn. of Chin,J.; Hudgens v. NLRB (1976) 424 U.S. 507, 517-521 (Hudgens) [federal law does not follow Pruneyard|; UFCW, Local 919 v. Crystal Mall Assocs., L.P. (Conn. 2004) 852 A.2d 659, 666-669), there is no factual reason in this case to extend the public forum doctrine to Foods Co’s modest retail establishment.’ Neither is there any legal reason to make that leap of logic. California’s intermediate reviewing courts have consistently refused to extend Pruneyard to modestretail establishments, allowing them torestrict and even prohibit expressive activities on their private property, and this Court has never questioned those decisions. (Zrader Joe’s Co., 73 Cal.App.4th 425, 428 [preliminary injunction barring signature solicitations at a stand-alonestore]; Costco, 96 Cal.App.4th 740 [stand-alone stores may prohibit all expressive activity]; Albertson’s, 107 Cal.App.4th 106 [preliminary injunction barring expressive activity at store within small commercial center]; Slevin, 120 F.Supp.2d 822 [privately owned apron in front of store not transformed into public property by hot dog stand or modest seating area]; Van, 155 Cal.App.4th 1375, 1377 [no signature gathering in area surrounding individual retail store “even when that store is part of a larger shopping center’’}.) As wesaid, Foods Co’s College Square store is not a Pruneyard- type shopping center. And as the Court of Appeal put it, our Sacramento store is “indistinguishable from the stand-alone stores in shopping centers” described in Van and Albertson’s. (Slip Opn., p. 12.) * Wearenottalking about private property with all the attributes of a municipality, or private property to which there is no reasonable, feasible, alternative access (Marsh v. Alabama (1946) 326 U.S. 501) but only about privately owned property open to the public for a limited purpose (shopping) and otherwise accessible from adjacent publicstreets. II. THE SPECIAL PROTECTION AFFORDED TO LABOR ACTIVITY BY THE MOSCONE ACT AND SECTION1138.1 IS UNCONSTITUTIONAL CONTENT-BASED DISCRIMINATION. The Court of Appeal held that the Moscone Act (which deprives California’s courts of jurisdiction to enjoin labor-related activities) and section 1138.1 (which independently makesit virtually impossible to obtain injunctive relief against labor activities) violate the First and Fourteenth Amendments to the United States Constitution because both statutes impermissibly favor labor speech over all other speech. The Court of Appeal gotit nght. A. The MosconeAct. The Moscone Act provides that “no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from [lawfully picketing, distributing leaflets, or doing any other peaceable act related to collective bargaining disputes].” (§ 527.3, subd. (b).) As the Union concedes, the Moscone Act “immuniz[es] certain kinds of labor-related speech” —- and only labor-related speech — “on private property from trespass law.” (Pet., p. 24.) The Court of Appeal (i) relied on two United States Supreme Court cases prohibiting content-based discrimination that favors labor unions (Mosley, 408 U.S. 92 and Carey, 447 U.S. 455), (ii) rejected a number of inconsistent California cases because they failed to consider the First Amendmentimplications of their decisions (Schwartz-Torrance, 61 Cal.2d 766, Lane, 71 Cal.2d 872, Sears I, 25 Cal.3d 317, Cal Waremart, 87 Cal.App.4th 145, and M Restaurants, 124 Cal.App.3d 666, and (iii) adopted the reasoning of the D.C. Circuit Court of Appeals in Waremart Foodsv. NERB (D.C. Cir. 2004) 354 F.3d 870 (D.C. Waremart) to support its decision that the Moscone Act is constitutionally infirm. (Slip Opn., pp. 17-28.) The Court of Appeal reached the right result for the right reasons. 1. Mosley and Carey Mosley, 408 U.S. 92, condemned a Chicago ordinance prohibiting picketing within 150 feet of a school except for picketing related to a labor dispute, explaining that the ordinance made an “impermissible distinction between labor picketing and other peaceful picketing.” (Jd. at p. 94.) Under the First and Fourteenth Amendments, said the Court, “government may not grant the use of a forum to people whose viewsit finds acceptable, but deny use to those wishing to express less favored or more controversial views.” (Id. at p. 96.) The MosconeActfails for precisely this reason. Carey, 447 U.S. 455, condemned an Illinois statute prohibiting picketing on the public streets and sidewalks adjacent to residences, except for picketing a place of employment in a labor dispute. (/d. at pp. 457, 471.) The United States Supreme Court expressly rejected the argument the Union makes here — that the state’s interest in allowing labor protests justifies differential treatment — holding that the “central difficulty with this argumentis thatit forthrightly presupposes that labor picketing is more deserving of First Amendmentprotection than are public protests over other issues, particularly the important economic, social, and political subjects about which [others] wish to demonstrate.” (/d. at p. 466.) Asthe Court of Appeal pointed out, the only difference between our case and the laws at issue in Mosley and Carey is that the Moscone Act 10 “selectively allows speech in a private forum based on the content of the speech by withdrawing the remedy of the property owner or possessor while the laws scrutinized in Mosley and Carey selectively excluded speech from a public forum based on content. This difference, however, is not legally significant. The effect on speech is the same: the lawfavors speech related to labor disputes over speech related to other matters — it forces [Foods Co] to provide a forum for speech basedonits content.” (Slip Opn., pp. 21-22,italics added.) 2. Sears IT andits progeny. Just as the Court of Appeal correctly followed the United States Supreme Court’s decisions in Mosley and Carey, so too did it properly find that the California cases reaching a different result were wrongly decided. Sears IT, in which this Court upheld the then newly enacted Moscone Act, was not followed by the Court of Appeal for two valid reasons — Sears IT is a non-binding plurality opinion (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918) and it did not consider the First Amendmentissues presented by Mosley and Carey. (Sears IT, 25 Cal.3d at pp. 327-328, fn. 5; see Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [“An opinion is not authority for propositions not considered”’].) For the latter reason, the Court of Appeal similarly (and correctly) rejected Lane, 71 Cal.2d 872, Schwartz-Torrance, 61 Cal.2d 766, MRestaurants, 124 Cal.App.3d 666, and its own decision in Cal-Waremart, 87 Cal.App.4th 145. (Slip Opn., pp. 17-28.) > The Union’s reliance on Senn v. Tile Layers Protective Union (1937) 301 U.S. 468 (Pet. 17, fn. 5) is misplaced. In Senn — which predates Mosley and Carey by four decades — the United States Supreme (Footnote continues on next page.) 1] 3. D.C. Waremart The D.C. Circuit, forced to fend for itself after this Court declined its request to certifythe issue, had to decide whether California law gave labor organizers a right to leaflet in the privately-owned parking lot of a stand- alone grocery store. (D.C. Waremart, 354 F.3d at p. 871.) Relying on Mosley and Carey, the D.C. Circuit held that Sears I, Lane and Schwartz- Torrance are no longer valid because they provide special protection for labor activities that is not afforded to expressive activities by anyoneelse. (Id. at pp. 874-877.) Here, the Court of Appeal correctly held that the Moscone Actis substantively indistinguishable from the legislation condemned in Mosley and Carey. By allowing Union representatives to enter onto Foods Co’s private property for a purpose other than shopping when entry may be forbidden to all other demonstrators, the Moscone Act grants the use of a forum to people whose viewsit finds acceptable, notwithstanding that this forum is otherwise closed to everyone except the owner’s invitees. It follows ineluctably that the Moscone Act is facially unconstitutional and unenforceable. (Mosley, 408 U.S. at pp. 97-98; Carey, 447 U.S.at p. 470; D.C. Waremart Foods, 354 F.3d 870.) (Footnote continued from previous page.) Court rejected an equal protection challenge to Wisconsin’s Little Norris-LaGuardia statute by an individual claiming his right to earn a living was unconstitutionally impinged by labor picketing targeted against him. Senn dealt with picketing on a public street, and did not in any context consider the First Amendment or content discrimination issues addressed years later in Mosley and Carey. (Slip. Op., p. 26.) 12 B. Section 1138.1. Section 1138.1, subdivision (a), provides that no California court has “authority to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute” except after a hearing is held, testimony heard, and findings made that (among other things) unlawful acts have been threatened, the complainant’s property will suffer substantial and irreparable injury, the complainant has no adequate remedy at law, and the police are unable or unwilling to furnish adequate protection. (Slip Opn., pp. 29-30.) An injunction, of course, is the appropriate and traditional remedy for a continuing trespass (Slip Opn., p. 28), and in a typical, non-union situation, injunctive relief is obtained on a showing that (4) the moving party will probably prevail on the merits of its claim, (ii) irreparable harm to the plaintiff will result from a refusal to grant a preliminary injunction, and (iii) the potential harm to the plaintiff outweighs the harm the defendant will suffer if an injunction is issued. (Bank ofStockton v. Church ofSoldiers (1996) 44 Cal.App.4th 1623, 1625-1626; Slip Opn., pp. 28-29.) The obstacles added by section 1138.1 impose a_ virtually insurmountable burden on the private property owner seeking an injunction to stop labor-related activity by requiring proof of an unlawful act other than the trespass, irreparable harm to the property itself, and the inability to obtain police protection — thus using disparate treatment to accomplish the same impermissible end as the Moscone Act. (Slip Opn., pp. 28-33.) The Court of Appeal acknowledged its contrary decision in Cal Waremart, 87 Cal.App.4th 145, where it summarily rejected a First Amendment challenge to section 1138.1, holding now that, had the issue 13 been fully briefed there as it was here, the Court would have reached a different result. (Slip Opn., p. 31.) Section 1138.1 “as more than just a rule of procedure. In effect, it differentiates speech based on its content and imposesprerequisites that makeit virtually impossible for a property owner to obtain injunctiverelief.” (Slip Opn., p. 31.) It is unconstitutional. C. ‘Thesky is notfalling. The Union’s argument for review and against the Court of Appeal’s opinion — a screedto the effect that the Third Appellate District has wiped out the Norris-LaGuardia Act and pushed unions back into the 19th century — lacks merit. The Union’s suggestion that the Court of Appeal’s opinion could somehow “invalidate the federal Norris-LaGuardia Act, as well as the ‘Little Norris-LaGuardia Acts’ enacted by many other states” is a red herring. (Pet. 22-23.) As the Court of Appeal itself noted, “[t]his 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.” (Slip Opn., p. 2; italics added.) This narrow question has no bearing on federal law whereit is settled that there is no automatic exception to criminal trespass laws for labor speech. (Lechmere, Inc. v. NLRB (1992) 502 U.S. 527, 531-535; Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1978) 436 U.S. 180, 198 (Sears); Hudgens, 424 U.S. 507, 517-518; NERB v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 112.) Under federal law, it is only where some unique circumstance prevents nontrespassory methods of communication with employees 14 (a company town, a mine, a logging camp, a remote lodge) that a labor dispute may legally spill over onto private property. (Lechmere, 502 U.S. at p. 535; NLRB v. Babcock & Wilcox Co., 351 U.S. at p. 112; Thornhill v. Alabama (1940) 310 U.S. 88, 104-106; NZRB v. Lake Superior Lumber Corp. (6th Cir. 1948) 167 F.2d 147; Alaska Barite Co. (1972) 197 N.L.R.B. 1023; NLRB v. S & H Grossinger’s, Inc. (2d Cir. 1967) 372 F.2d 26.) Of course, this is true even as to non-labor speech. (Marsh v. Alabama, supra, 326 U.S. 501 [Jehovah’s witness’s right to distribute religious literature in company town].) Unlike federal law, under which trespassory union activity is “far more likely to be unprotected than protected” (Sears, 436 U.S. at p. 205), the Moscone Act mandates that trespassory union activity — and only union activity — “shall be legal.” (§ 527.3, subd. (b).) There is no similar language in the Norris-LaGuardia Act. “Little Norris-LaGuardia statutes” adopted by other states have nothing to do with this case, which is about California’s preferential treatment of labor speech on private property —- where California stands virtually alone in its position that private commercial property must (without the owner’s consent) be treated as a public free speech zone. (Fashion Valley, 42 Cal.4th at pp. 870, 874-876, dissenting opn. of Chin, J.) But even if other states have statutes that do impermissibly discriminate in favor of labor speech by exalting labor over all other types of expressive activities, those statutes must be addressed within the borders of the states they control, not by California’s courts. Forty-nine other wrongs would not make our wrongheaded statutes right. 15 The Union’s sky-is-falling diatribes (and the similar screams in the several letters requesting depublication of the Court of Appeal’s opinion) are distractions designed to divert this Court’s attention from the real issue in this case. (Pet. 4-5, 22-23.) As the Court of Appeal explained, the Union’s concerns are imagined, not real. (Ship. Opn., p. 32 [explaining that Ysursa v. Pocatello Education Association (2009) — US. __ [172 L.Ed.2d 770], one of the Union’s favorite cases, is inapposite becauseit did not involve a content-basedrestriction].) The Court of Appeal’s opinion does not jeopardize uncontroversial statutes (certainly not shield laws that protect a person’s right to refuse to speak) that have nothing to do with the private property issues in our case. There is no parade of horribles and the Union’seffort to inject drama into the narrow, relevant issues of this case should be rebuffed. The Court of Appeal understood the issues before it, thoughtfully analyzed the law, and published a cogent decision. It should stand. Ill. REVIEW SHOULD BE DENIED NOW BECAUSE AN IDENTICAL CASEIS PENDING IN THE FIFTH APPELLATE DISTRICT, AND THIS COURT CAN DECIDE LATER WHETHER REVIEW OF THESE ISSUES IS WARRANTED. As noted at the beginning of this brief, an identical case — same parties, same type of store, same issues, same scenario (the Fresno Superior Court denied Foods Co’s motion for a preliminary injunction) — is pending in the Fifth Appellate District, and is presently set for argumentin October. If this Court decides to review the Third District’s opinion that is the subject of the pending petition, it will leave not only the Fifth District but also the rest of the state’s trial and appellate courts in a vacuum, without 16 any guidance at all during the two to three years it takes for this case to work its way through the briefing and review process. But if this Court denies review in this case, it can have a second bite at an identical apple after the Fresno appeal is decided. If Foods Co winsagain, the Union will of course seek review (it can recycle the petition it filed in this proceeding). If the Union wins, Foods Co will seek review (and would certainly have grounds since there would then be a direct conflict between districts). Without regard to which side wins in Fresno, this Court will have the benefit of another intermediate appellate court’s views on this subject. There is no downsideto this approach. CONCLUSION For all the reasons discussed above and in the Court of Appeal’s well-reasoned opinion, Foods Co respectfully submits that the Union’s Petition for Review should be denied. Dated: September 13, 2010 Respectfully submitted, MORRISON & FOERSTER LLP Miriam A. Vogel / Attorneysfor Plaintiffand Appellant, RALPHS GROCERY COMPANY 17 CERTIFICATE OF COMPLIANCE Pursuant to rule 8.204(c)(1) of the California Rules of Court and in reliance on the word count of the computer program used to prepare this brief, counsel certifies that this Answer to Petition for Review was produced using 13 point Roman type and contains 4,351 words. Dated: September 13, 2010 MORRISON & FOERSTER LLP Miriam A. Vogel a Attorneysfor Plaintiffand Appellant, RALPHS GROCERY COMPANY 18 PROOF OF SERVICE I declare that I am employed with the law firm of Morrison & Foerster tp, whose address is 555 West Fifth Street, Los Angeles, California 90013-1024. I am nota party to the within cause, and I am over the age of eighteen years. 1 further declare that on September 14, 2010, I served a copyof: la-1090779 ANSWERTO PETITION FOR REVIEW BY FACSIMILE[CodeCiv. Proc sec. 1013(e)] by sending a true copy from Morrison & Foerster tir's facsimile transmission telephone number 213.892.5454 to the fax number(s) set forth below,or as stated on the attached service list. The transmission was reported as complete and without error. The transmission report wasproperly issued by the transmitting facsimile machine. I am readily familiar with Morrison & Foerster tp’s practice for sending facsimile transmissions, and know thatin the ordinary course of Morrison & Foerster tip’s business practice the document(s) described above will be transmitted by facsimile on the same date thatit (they) is (are) placed at Morrison & Foerster tip for transmission. BY U.S. MAIL [CodeCiv. Proc sec. 1013(a)] by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows, for collection and mailing at Morrison & Foerster tip, 555 West Fifth Street, Los Angeles, California 90013-1024 in accordance with Morrison & Foerster tip’s ordinary businesspractices. I am readily familiar with Morrison & Foerster tip’s practice for collection and processing of correspondencefor mailing with the United States Postal Service, and knowthat in the ordinary course of Morrison & Foerster ip’s business practice the document(s) described above will be deposited with the United States Postal Service on the samedatethat it (they) is (are) placed at Morrison & Foerster tp with postage thereon fully prepaid for collection and mailing. Elizabeth A. Lawrence Attorneysfor Defendant and Respondent Davis, Cowell & Bowe United Food and Commercial Workers 595 MarketStreet, Suite 1400 Union Local 8 San Francisco, CA 94105 Tel: 415-597-7200 Fax: 415-597-7201 Antonette Benita Cordero Office ofthe Attorney General, Amicus Office of the Attorney General of Curiaefor Respondent California 300 South Spring Street, Suite 1702 Los Angeles, CA 90013-1233 Tel: 213-897-2039 Fax: 213-897-7605 William J. Emanuel , Attorneysfor Employers Group, Natalie Ann Rainforth California Grocers Association, and Littler Mendelson, PC California Hospital Association, Amicus 2049 Century Park East, Sth Floor Curiaefor Appellant Los Angeles, CA 90067-3107 Tel: 310-553-0308 Fax: 310-553-5583 Clerk, Sacramento Superior Court Attn: The Hon. Loren E. McMaster 800 9th Street Sacramento, CA 95814-2686 Clerk, Court of Appeal, State of California Third Appellate District 621 Capitol Mall, 10th Floor Sacramento, CA 95814 I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed at Los Angeles, California, this 14th day of September, 2010. C. BIBEAU (Lbear (typed) (signature)