RALPHS GROCERY v. UNITED FOOD & COMMERCIAL WORKERS UNION

Respondent’s Petition for Review

Cal.August 27, 2010

Case No. 8185544 IN THE SUPREME COURT OF CALIFORNIA sus rePieie LoCOURT FILEDVane doe Be RALPHS GROCERY COMPANY, Plaintiffand Appellant V. UNITED FOOD AND COMMERCIAL . WORKERS UNION LOCAL8, rracercs K. Ohirich Clerk Defendant and Respondent. AUG 2 7 2010 Caputy After a Decision of the Court of Appeal Third Appellate District, Case No. C060413 (Sacramento Superior Court Case No. 34-2008- 00008682-CU-OR-GDS, The Honorable Loren McMaster, Judge) PETITION FOR REVIEW DAVIS, COWELL & BOWE, LLP Steven L. Stemerman (BAR NO. 067690) Elizabeth A. Lawrence (BAR No. 111781) Andrew J. Kahn (BAR No. 129776) Paul L. More (BAR NO. 228589) Sarah Grossman-Swenson (BAR NO. 259792) 595 Market Street, Suite 1400 San Francisco, CA 94105 Telephone: 415-597-7200 Facsimile: 415-597-7201 Attorneysfor Defendant and Respondent United Food & Commercial Workers Union Local 8 SERVICE ON ATTORNEY GENERAL REQUIRED é £- - CALIFORNIA RULES OF COURT, RULE 8.29(C)(1) Poe Case No. 8185544 IN THE SUPREME COURT OF CALIFORNIA RALPHS GROCERY COMPANY, Plaintiffand Appellant Vv. UNITED FOOD AND COMMERCIAL WORKERSUNION LOCAL8, Defendant and Respondent. After a Decision of the Court of Appeal Third Appellate District, Case No. C060413 (Sacramento Superior Court Case No. 34-2008- 00008682-CU-OR-GDS, The Honorable Loren McMaster, Judge) PETITION FOR REVIEW DAVIS, COWELL & BOWE, LLP Steven L. Stemerman (BAR NO. 067690) Elizabeth A. Lawrence (BAR No. 111781) Andrew J. Kahn (BAR No. 129776) Paul L. More (BAR NO. 228589) Sarah Grossman-Swenson (BAR No.259792) 595 Market Street, Suite 1400 San Francisco, CA 94105 Telephone: 415-597-7200 Facsimile: 415-597-7201 Attorneysfor Defendant and Respondent United Food & Commercial Workers Union Local 8 SERVICE ON ATTORNEY GENERAL REQUIRED CALIFORNIA RULES OF COURT, RULE 8.29(C)(1) TABLE OF CONTENTS STATEMENTOF ISSUES PRESENTED... eeeceeeeeceteeeeeseteseeeeneeeneees 1 WHY REVIEW SHOULD BE GRANTED 000...teteernie 2 FACTUAL AND PROCEDURAL BACKGROUNDLee 8 Factual Background .......cccceseceeeeeeeereeeeneeeseeeeeteeentesneeesesseneneeaees 8 Procedural Background and Decision Below ............ceee 11 LEGAL DISCUSSION o...ecceceesceeceeeeserereeeneeeene sees eeeeseeeeeeeeneeeneeeeeeneeees 15 I. The Court Should Grant Review to Correct the Third Appellate District’s Misapplication of First Amendment Content-Discrimination Doctrine ................. 15 A. Labor Code §1138.1 is a procedural statute that does not abridge speech 0...eee 16 B. This Court’s interpretation of the Moscone Act in Sears I does not render that statute unconstitutional woo...ceeeeeccceeeeeeeeeee 23 II. The Court Should Grant Review to Correct the Third Appellate District’s Erroneous Conclusion that Commercial Property Owners Havea First Amendment Right to Exclude Unwanted Speech .............. 27 HI. |The Court Should Grant Review to Clarify the Application of Pruneyard and Its Progeny to Walkways Abutting Retail Stores Located in Larger Shopping Centers and to Speech Related to Such Retail Stores ...... cee eeeesseseeceecessesesseseneeseeesnsasereas 30 A. The Court should grant review to address whether walkwaysandparking lots abutting retail stores in larger shopping centers are PUb]ic FOL «elecetecneeeeeeseeeeeeestaeesetenerenteserenes 31 B. The Court should grant review to clarify the constitutional right to use sidewalksin front of retail businesses for speech related to the DUSINESS. 00... cece eee ees eeee scenes eeeeeeeeeteneaeeeeeees 34 CONCLUSIONoccceecceceeseeeeceeeeneesenaeeceesaeeeesseseeneeeeessaseeessaeeessssneeeesenaes 37 li TABLE OF AUTHORITIES FEDERAL CASES Aluminum Workers v. Consolidated AluminumCorp. (6th Cir. 1982) 696 F.2d 437ceceeeeeeeeseeseecseeseeeseeneeenes 17 Amalg. Transit Union Div. 1384 v. Greyhound Lines (9th Cir. 1977) 550 F.2d 1237 oo... eceeecceeeeeeseeetseeeeceeneesseceeeeaeensaes 17 Burlington No. Santa Fe Ry. Co. v. Int'l Bhd. of Teamsters Local 174 (9th Cir. 2000) 203 F.3d 703 oo. ecseeeceseeeesee recesses eeeeseeeeteeeerseetenee 17 Carey v. Brown (1980) 447 US. 455Leeseecesereeneeeeceeecsseeeeeseneseeeeenaes passim Central Hardware Co. v. NLRB (1972) 407 U.S. 539 oececcccceseesecesecsecenecssecenereresnaeesseesaeeeneeseaeeniees 20 Christian Legal Soc. Chapter ofthe Univ. of Cal., Hastings v. Martinez (2010) — U.S. 5 130 S.Ct. 2971eteereeneeeeee 22 Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. (1985) 473 U.S. 788 .oeccecceceesceceeteeseeeeteeseeeseeseeereessesaeeeaesaeenaetareeaes 22 Cuviello v. City of Oakland (N.D. Cal. 2007) 2007 WL 2349325 ooo eceeseeee ces teseteeetenteeees 33 Cuviello v. City ofStockton (E.D. Cal. 2008) 2008 WL 4283260...eeeeecee teeceteteeereenies 33 Davenport v. Washington Educ. Assn. (2007) S51 U.S. 177 cc ceececceeceeecseeeseaeeeeseeeessneeeeeneaeeeeeseseeteneaeeees 4,21 Farmer v. United Bhd. ofCarpenters, Local 25 (1977) 430 U.S. 290 ec eeeeeseeeenecnsenseseeeeeseseseseeseseensetaeeseesrentenats 20 Greer v. Spock (1976) 424 US. 828eeeccececetertecesesseeensereeeseesaeesseesesetnersnenenees 22 Hudgens v. NLRB (1976) 424 U.S. S07 coeceecccccceeesseensecseeneecseceseceseeseersntessecseeseaeeenness 20 iil Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995) SUS U.S. 557 viceecceesececseecenrseeeeeenseeeneceeeesneesnsennees 12,27, 29 Kuba y. 1-A Agric. Assn. (Oth Cir. 2004) 387 F.3d 850 o....eeecceeesceeeeeeeceeecereeeeseeeceeeeseneeeaees 33 Lochner v. New York (1905) 198 U.S. 45cccccccccsssscessseceenscesseceeessseeecessnseeseeeesesseeeenees 24 Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999) 528 U.S. 32 ooceeeeccceseecescececetececeseeteeeceseeeeeeeeteaeeseneseeneeeteens 20 Marine Cooks & Stewards v. Panama S.S. Co. (1960) 362 U.S. 365 oo.ccecccccccccescceseeesseenscsseeeeceeeetsnseceasessectesteenstees 16 New York Times v. Sullivan (1964) 376 U.S. 254 ooo ceccccccsscesseeessneeesseeceeseseeeecenaeeesseeesseneesaees 20 NLRBv. Calkins (9th Cir. 1999) 187 F.3d 1080 wceccccssecsseccesseeessecesseeesseessees 33 Pacific Gas & Elec. Co: v. Pub. Utils. Commun. (1986) 475 US. Lice ceecccsecnceeenecteeeteeseetserseneeneeesneteneeentes 14, 27, 29 Police Dept. v. Mosley (1972) 408 U.S. 92oieceeccccceececeeeessneeeceeeeceeeeeeeseseetnaaaaaes passim Pruneyard Shopping Ctr. v. Robins (1980) 447 U.S. 74 Loic eeececcsecceesssneeeeeeneneeteeaeneereteessaeeseeenaaeens passim R.ALV. v. City ofSaint Paul (1992) 505 U.S. 377 vicecceccceseeessceseeeseesnersesereesreneccesecsseessetentenseenees 18 Regan v. Taxation Without Representation (1983) 461 U.S. 540cececenecceeceeseeeeerseseecsaeeeneecnsaterseeenees 22 Republic Aviation Corp. v. NLRB (1945) 324 US. 793 vo cececceteeseeeeeeeceececcseeeseeesieesaeenseseeneeeaeeaees 5,25 Rumsfeld v. Forumfor Academic & Institutional Rights (2006) 547 U.S. 47 vicececceeseeteecseeeeereteeteeneeeeesereeeneeeneeeneeeas 7, 28, 29 iv Rust v. Sullivan (1991) 500 U.S. 173 .oeeecececeeceeeeeeceeeeee cee eneeteseeseeseneseseseseessseensaeengs 22 San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters (9th Cir.1997) 125 F.3d 1230 occeeecee ceecse sess ereeteeeneseneeensens 17 Senn v. Tile Layers Union (1937) 301 U.S. 468oeeee eeeere esse ceeeeecneeneenesenessseeseessessseeniegs 17 Simon & Schuster, Inc. v. Members ofthe N.Y. State Crime Victims Bad. (1991) 502 U.S. 105 ooecceeccccceeceteeseesneeeeeeeseeeesseeeeseesessesneneesseeeeraeegs 20 Thunder Basin Coal Co. v. Reich (1994) 510 U.S. 200...cece cece eeesseesacessseeecneeessesenestesssesseeeneeenaess 29 Ward v. Rock Against Racism (1989) 491 U.S. 781 ceceescceeeeeeseeseeeseeesecseesseeseesereenseseneess 22 Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870 woecece seseeeeeeeeseeeetserteessetseeees 26 Ysursa v. Pocatello Educ. Assn. (2009) 555 U.S.129 S.Ct. 1093 ieeecee eseeereeeneereetees 19 STATE CASES Albertson's v. Young (2003) 107 Cal.App.4th 106 weeseeeeere cere eeeeeeneentens 31, 32,35 City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43 ooeeeseseeeereseeseessreneeeesseetseesieecnees 27 Costco Co. v. Gallant (2002) 96 Cal.App.4th 740cece cisceeecseseesereseeeeeeseesessessecseeseeseces 35 Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850 oo.eeeesseeseeeessesseeenseseesanessentes passim Golden Gateway Ctr. v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013 eeeeeccececeseseeseeresesseessecerseeesseesseesreenees 34 In re Catalano (1981) 29 Cal.3d 1 ceceeecceeeceescceeeeeteeeeesesseesssereeseesseeeseesaseeeeseenes 26 In re Lane (1969) 71 Cal.2d 872 oiecee cece cece ccseeeeeeesesseeeeeennseseeeegs passim Los Angeles Alliancefor Survival v. City ofLos Angeles (2000) 22 Cal.4th 352 oeeiceeesseesesseeeteetsettsssesecseseseseseessaees 4,21 MRestaurants Inc. v. San Francisco Local Joint Exec. Bd. (1981) 124 CalApp.3d 666 oo.eecceerseereeenraeensseeeenees passim Robins v. Pruneyard Shopping Ctr. (1979) 23 Cal.3d 899 oie cceseeeeeeesetseesersreneseeeenseenaees 2,7, 31, 34 Schwartz-Torrance Investment Corp. v. Bakery & Confection Workers Union (1964) 61 Cal.3d 766 oo... eeeeeeeeeeseeseseeneeteetesseseeeesesaeeeneeeens passim Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317 vcececcceseneeceseeseeeceseseseneaeeeessteeseesaees passim Slauson Partnership v. Ochoa (2003) 112 Cal-App.4th 1005 oo...eeeee esscceeeeeeceeeeneeeneeenes 35 Trader Joe’s Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425 oieecceceeseceeeeeeteseeeesseseessesessesseeneaes 35 Van v. Target Corp. (2007) 155 Cal.App.4th 1375 oeeeecess eeesseeeseeseseeeneee 13, 32 Waremart Foods v. United Food & Commercial Workers (2001) 87 Cal.App.4th 145 oeec eeeeesseeserereessenseeees 6, 16, 18, 20 Wernerv. S. Cal. Associated Newspapers (1950) 35 Cal.2d 120 icccccsceseeseeeeeeeeceeeecneeeceeceesseeeetrseeterereeeas 22 v1 CONSTITUTIONS U.S. Const., amend. Doo... eeeeeeceeeeeceneeereeeseseseneesenseeeeenseeneeeeanee passim Cal. Const., art. 1, §2(a)... cccccecceceeeceesenneceseeeesneeeesaeeccnseeeesessteeeassesneseeeenas 31 FEDERAL STATUTES Norris-LaGuardia Act, 29 U.S.C. §104 oo.eeeeerneeenee seer eeeeeeeees 5, 24 Norris-LaGuardia Act, 29 U.S.C. $107 wiieeeesceseeneeetteeeenteees passim National Labor Relations Act, 29 U.S.C. S15] occeeeeeeeeeenneeeeenenee 5 CALIFORNIA STATE STATUTES Civ. Code §43.7 ooicccceeccecccececeeeeteeeeeeneeseesaeesanesesneneenreeseeeeeseceseseesseesenaeeees 4,22 Civ. Code §48a oo... eeceesceececeneceneeerseeesseesnresseeeeseeesescesasseseuseneeeenseseaaeegs 4,22 Civ. Code $798.51 ooecceccecccccecceeeeeeeeeeeeeeeeneeseeseeeeseeseseeseesresereesieenseeee 4,22 Civ. Code §1942.5 oieececccesseeereeneeeeeretenseteeetestneeensesseesssseteeesseaseneees 4,22 Civ. Code §1942.6 oo.cceccccccseeseceteeeeteeeeeeteeesesessneeesneeeesereeeecseeneeeens 4,22 Code Civ. Proc. § 425.16 ..iecccccccceecceeseeeteeeeeeeeseerieeesensnaeeeesisennneeeenesaeense 21 Code Civ. Proc § 527.3, Moscone ACt......ceeecsceseeesseeesee sete eenneeeens passim Evid. Code § 990 oo....eceecscecseceneeceneeseeeeseesiseeesaessaeeesseeeessesneseseeeneeee 5,21 Gov. Code § 8547 oo. ..ccceccceceecetneeeeeneeeeeneseeeeertaseseseescesseaeseneeseneeeseeseeneeey 22 Lab. Code §1102.5 o...cceeeceesteseesteeeeereeneseeecenaetsueeseseeeeseesssesenseessneseseney 22 Lab. Code §1138.1 oo. cecceeseeccceeesetecceeeceesetesensesieeeesasessessessentsneeneees passim CALIFORNIA RULES OF COURT Rule 8.500(e)(1) cesssescsssssesssssseesessessssssesssssevessssessessecsasvessirsssssisessssesssseseen 15 vu TO THE HONORABLECHIEF JUSTICE RONALD M. GEORGE AND THE HONORABLEASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Defendant-Respondent United Food and Commercial Workers Union Local 8 petitions this Honorable Court to grant review ofthe published decision of the California Court of Appeal, Third Appellate District, filed on July 19, 2010. A copy ofthe opinion is attached as Exhibit A. STATEMENTOF ISSUES PRESENTED 1. Did the Court of Appealerr in holding that Labor Code $1138.1 violates the First Amendmentto the United States Constitution becauseit sets procedural requirements for issuing injunctions in cases involving or growing outoflabor disputes that do not apply in other cases? 2. Did the Court of Appeal err in holding that the Moscone Act, Code of Civil Procedure §527.3, violates the First Amendment becauseit prohibits injunctions against a labor union’s peaceful picketing on the privately owned sidewalk surroundinga retail store? 3, Did the Court of Appealerr in holding that the Moscone Act and Labor Code §1138.1 violate commercial property owners’ First Amendmentrights by requiring them to accommodate other speakers’ messages ontheir property? 4. Do the walkways and parkinglots abutting a retail store in a larger shopping center qualify as public fora under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 when they connect the retail store to the shopping center’s commonareas and whentheyare used to communicate a messagerelatedto the retail store’s business? WHYREVIEW SHOULD BE GRANTED The Third Appellate District’s opinion declares unconstitutional two California statues—Labor Code §1138.1 and the Moscone Act—thatare drawn verbatim from the federal Norris-LaGuardia Act. In so holding, the opinion warps the First Amendmentdoctrine of content-discrimination to prohibit California from passing viewpoint- neutral, speech-promoting legislation that provides targeted procedural protectionsor selectively abrogates the common law. Labor Code §1138.1 sets heightened procedural standardsfor issuing injunctions against peacefulactivity in labor disputes, including expressive activity, whether the injunction is soughtby (or against) an employer, a union, an individual employee, or anyone else. As interpreted by this Court in Sears, Roebuck & Co. v. San Diego County Dist. Council ofCarpenters (1979) 25 Cal.3d 317 (Sears IN), the Moscone Actprohibits injunctions against peaceful - picketing by labor unionson the sidewalksoutside of retail stores. Both statutes reflect the Legislature’s reasoned conclusion—based on decadesof federal and state experience—thatlabor disputes should be open to vigorous, public debate and shouldbe regulated primarily by administrative tribunals rather than the State’s courts. Neitherstatute abridges anyone’s speech, even indirectly. (See U.S. Const., amend.I [Congress shall make no law . . . abridging the freedom of speech.”].) Ralphs Grocery Companyinvokes private property rights to limit labor union speechthat it does not want customers to hear. Labor Code §1138.1 simply makesit moredifficult for Ralphsto get an injunction furthering this fundamentally private goal. The Moscone Act restricts Ralphs’s ability to invoke trespass law to limit speech about a labor dispute. The Third Appellate District nevertheless concluded that both statutes are content-discriminatory and unconstitutional. It found Labor Code §1138.1 violates the First Amendment because it “adds requirements for obtaining an injunction against laborprotesters that do not exist when the protest, or other form of speech,is not labor related.” (Opn.atp. 28.) It held that the Moscone Act is unconstitutional becauseit “favors speech related to labor disputes over speechrelated to other matters.” (Opn.at p. 17.) The court based these erroneous conclusions on Police Department v, Mosley (1972) 408 U.S. 92 and Carey v. Brown (1980) 447 U.S. 455, ' Citation herein is to the Opinion issued July 19, 2010 (attached as Exhibit A). The published decision is also available at (2010) 186 Cal-App.4th 1078. two Supreme Court decisions involving entirely different constitutional concerns. In both cases, the law in question expressly prohibited speech in a public forum basedonits content and exemptedlabor-related picketing from this prohibition. It was the government’s content-basedrestriction on speech that madethe laws unconstitutional. (Mosley, supra, 408 U.S. at p. 99; Carey, supra, 447 U.S.at p. 462.) But Mosley and Brown do not permit a court to invalidate legislation that is exclusively speech-protective simply because the legislation does not extend the sameprotectionto all forms of speech. The U.S. Supreme Court has neverheld that a state’s selective abrogation of potentially speech- limiting commonlawrights violates the First Amendment. The Third Appellate District’s premise—that any differential treatment of speech based on its content is invalid—has never been the law. (Davenportv. Washington Educ. Assn. (2007) 551 U.S. 177, 188; Los Angeles Alliance for Survivalv. City ofLos Angeles (2000) 22 Cal.4th 352, 368.) If left unreviewed, the Third Appellate District’s expansive view of content-discrimination would threaten a significant amount of uncontroversial state and federal legislation. California has many proceduralprotections that recognize particular dangers to specific types of speech. Tenants are protected from landlords’ right of unlawful detainer whenthat right is invoked in retaliation for speech involving tenant- landlord disputes. (Civ. Code §§798.51, 1942.5 & 1942.6.) Journalists and doctors enjoy content-based statutory protection from common-law defamation that is not extended to others. (Civ. Code §§48a & 43.7.) Doctors, lawyers, and psychiatrists have content-based speech privileges underthe Evidence Code. (See, e.g., Evid. Code §990 et seq.) Under the Third Appellate District’s theory, these laws are unconstitutional because their protections do not apply to everyone. Federal statutes, too, would be unconstitutional underthis view. The Norris-LaGuardia Act, which Congress passed in 1932, contains the same limitations on equity jurisdiction and heightened standards for issuing injunctions in labor disputes as do Labor Code §1138.1 and the Moscone Act. (See 29 U.S.C. §§104, 107.) The National Labor Relations Act, 29 U.S.C. §151 et seg. (NLRA), gives employeesa statutory right to speak about unions on their employer’s private property, but does not protect these same employeesif they wish to talk to their co-workers aboutreligion or politics. (See Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793.) Bothofthese statutes would be constitutionally suspect under the Third Appellate District’s reasoning. There would be no principled basis for sparing laws that are part of ourbasic statutory fabric from the court’s constitutional axe. This demonstrates that something is very wrong with the court’s approach. Indeed,to reachits result, the Third Appellate District had to override this Court’s settled precedent, contrary authority from other courts of appeal, and its ownprior opinion. In Sears /I, this Court affirmed the constitutionality of the Moscone Act. (25 Cal.3d at pp. 331-32.) But the Court of Appeal dismissed this holding as a non-binding “plurality” view, ignoring the fact that a fourth Justice concurred in the lead opinion’s constitutional holding. (/d. at p. 333 [Newman,J., concurring].) The Third Appellate District created a conflict with the First Appellate District, which upheld the constitutionality of the Moscone Act in M Restaurants Inc. v. San Francisco Local Joint Executive Board (1981) 124 Cal.App.3d 666. M Restaurants held that “section 527.3 does not deny equal protection” and thatits classification “bears a rational relationship with its purpose.” (/d. at p. 677.) Yet the Third Appellate District wrongly dismissed this constitutional holding as “dicta.” (Opn.at p. 26-27.) The Third Appellate District also overruled its own prior decision upholding Labor Code §1138.1 over content-discrimination and equal protection claims. (Waremart Foods v. United Food & Commercial Workers (2001) 87 Cal.App.4th 145 [Waremart IJ.) Finally, and mostradically, the court avoided the central problem with its constitutional theory—the lack of any governmental abridgement of speech—bycreating a new First Amendmentrightto exclude speech from commercial property. Without any briefing on the subject, the court held sua sponte that the Moscone Act and Labor Code §1138.1 infringe on Ralphs’s First Amendmentrightnotto be forced to “host or accommodate another speaker’s message.” (Opn.at p. 3.) But the Supreme Court has repeatedly rejected the notion that commercial property ownerslike Ralphs have any First Amendmentrightto exclude speakers from their property. (Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 88; Rumsfeldv. Forumfor Academic & Institutional Rights (2006) 547 U.S. 47, 63-65 [FAIR].) Even if Labor Code §1138.1 and the Moscone Actdid not bar Ralphs’s request for an injunction, the shopping center walkway and parking lot on which United Food & Commercial Workers 8 (the “Union”) was demonstrating is a public forum under Pruneyard I, supra, 23 Cal.3d 899. The Union—like the missionaries, signature solicitors, and vendors whouse these areas—hasa right to picket and handbill in this public forum even if the Moscone Act and Labor Code §1138.1 did not apply. In fact, the Union’s constitutional right to publicize its boycott 1s greater, since this speech relates to Ralphs’s business: ““‘citizens have a strengthened, not a diminished,interest in speech that presents a grievance againsta particular business in a privately owned shopping center, including speech that advocates a boycott.’” (Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850, 864 [internal citation omitted].) The Third Appellate District ignored Fashion Valley’s holding andeffectively overruled In re Lane (1969) 71 Cal.2d 872 and Schwartz-Torrance Investment Corp. v. Bakery & Confection Workers Union (1964) 61 Cal.3d 766, both of which Fashion Valley expressly endorsed. (Opn. at pp. 15-16; see Fashion Valley, supra, 42 Cal.4th at pp. 864, fn.6.) Instead, the Court held that the walkways and parking lots abutting retail stores located in larger shopping centers are categorically non-public, even whenthe center is a Pruneyard-type forum, the walkway connects the retail store to the shopping center’s common-use courtyards, and the speech in question presents a grievance against the store. (Opn.at pp. 14-15.) In short, the Third Appellate District struck down California statutes using reasoning that would invalidate many other state and federal statutes; misapplied First Amendmentcontent-discrimination doctrine to statutes that do not abridge anyone’s speech; endorsed a new First Amendment right to exclude speech that has been rejected by the Supreme Court; and disregarded this Court’s opinions. Respondentrespectfully requests that this Court grant review of the Third Appellate District’s decision in order to reverse and return the law to its previous equilibrium. FACTUAL AND PROCEDURAL BACKGROUND Factual Background Ralphs’ operates a Foods Co grocery store in a mixed-use, outdoor mall in South Sacramento called College Square. College Square also ; The grocery store operates under the name Foods Coandis associated with Ralphs, a subsidiary of the Kroger Company. (1JA 003.) includes restaurants, other retail establishments, a bank,nail and hair salons, and several storefronts yet to be leased. (RT 20, 21, 35-36, 70-71.)° There are three commoncourtyards in College Square, one of which is directly adjacent to Foods Co and connectedto the store by a walkway that passes the store’s entrance. (3JA 0486, 508-512.) College Square’s courtyards offer benches, eating tables, a mechanical hobbyhorse for children, vending machines, and shade trees. (RT 34-35; 3JA 0486, 508- 512.) The mall’s name derives from its proximity to a nearby community college, and the mall invites visitors, including visitors from the college and a nearby high school, to congregate in the public space. The public gains access to the courtyards and the mall’s stores by following a shared drivewayto a shared parking lot containing several hundred parking spaces. (RT 26, 37.) Sidewalks and walkways wind through the mall, allowingvisitors to stroll freely from shop to restaurant and to anyofthe three courtyards. (3JA 511-512.) There are no segregated areas designated for Foods Co customersonly. The Unionestablished a picket line at Foods Coin July 2007, and maintainedit until July 2010. (See RT 10.) The picketers held signs announcing the Union’s dispute with Foods Coandoffered leaflets to customers, asking them to boycott the store. (RT 12, 28, 58.) The Union’s ; The Record of Transcript from the trial court is referred to herein as “RT.” The Joint Appendix is referred to by volume and page number,i.e., “3JA 000.” dispute with Foods Co concernedthe store’s non-unionstatusandfailure to provide adequate family health benefits, which undermined the viability of benefits provided at Foods Co’s unionized competitors. (See 3JA 0489.) It is undisputedthatthe picket line was entirely peaceful. (RT 57.) - The picketers did not enter the store or block ingress or egress. (3JA 494- 495.) They did not approach shoppersbefore they exited their cars. (3JA 494.) There was no vandalism. (RT 26-27.) No delivery trucks were blocked. No customers were prevented from shopping. Thetrial court specifically foundthat there was no evidence of any violence, threats, fraud, or property damage. (3JA 642-643.) During this time, several other groups and individuals used College Squareandthe sidewalk in front of Foods Co to convey their messages. Missionaries distributed materials and solicited money, often on the walkway in front of Foods Co. (RT 59, 66; 3JA 498-504.) Solicitors for the Sacramento Bee stoodinside the doors of Foods Co, approaching shoppersto sell subscriptions. (RT 33, 58, 63-64; 3JA 502-503.) Signature-gatherers seeking support forpolitical petitions approached College Squarevisitors, including on the walkwayin front of Foods Co. (RT 31, 64, 66-67; 3JA 504-507.) A group was permitted to use the parking lot to sell fireworks, and this group put leaflets on the cars in the parking lot. (RT 34.) Otherindividuals sold items by approaching College 10 Square visitors in the parking lot and on the sidewalk in front of Foods Co. (RT 58.) After six months of peaceful Union picketing, Ralphs created onerous newrules to limit the Union’s criticism. (RT 24; 3JA 487-88.) The new policy prohibited any demonstrating from Sunday through Friday between 11:00 a.m. and 1:30 p.m. and between 4:00 p.m. and 7:00 p.m. (3JA 487-88.) It bannedall demonstrating in the weeks preceding Martin Luther King Day, Presidents Day, and several other holidays, resulting in a total ban for at least seven weeks. (/bid.) Therulesalso limited the number of demonstrators on the walkwayin front of Foods Co to two people, amongotherrestrictions. (/bid.) The Union peacefully continued its actions, maintaining the same behavior and hours it had established, as did the missionaries, signature- gatherers, subscription agents, and other solicitors who used the walkway and parking lot. (RT 62-67.) After several more months, Ralphs sought court intervention to force the Union, and only the Union, to comply with its restrictive rules. Procedural Backgroundand Decision Below On May28, 2008,the trial court held that the Moscone Act was unconstitutional and set an evidentiary hearing pursuant to Labor Code §1138.1. (2JA 440-42.) After the evidentiary hearing, the trial court denied Ralphs’s motion for a preliminary injunction, finding that Ralphs 11 had not met the requirements for injunctiverelief set forth in Labor Code §1138.1. Thetrial court also found that Ralphs hadfailedto carry its burden that its rules were reasonable time, place, and mannerrestrictions under the guidelines of Fashion Valley, supra, 42 Cal.4th 850. The court — issued an Order Denying Motion for Preliminary Injunction on October3, 2008. (3JA 639-643.) Ralphs appealed. Recognizing the importanceofthe case, the Attorney Generalfiled an amicuscuriae brief supporting the Union, and industry groupsfiled an amicuscuriae brief supporting Ralphs. The Third Appellate District reversed. It held that the Moscone Act and Labor Code §1138.1 violate the First and Fourteenth Amendments to the U.S. Constitution because they allow “the state, based on the content of the speech, [to] force the owneror possessorof real property that is not a public forum to give an uninvited group access to the private property to engage in speech.” (Opn.at p. 2.) Doing so, the court held, violated Ralphs’s First Amendmentrights because “[florcing a speakerto host or accommodate another speaker’s messageviolates the host’s free speech rights.” (Opn. at p. 3 [citing Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995) 515 U.S. 557, 566].) 12 ’ The Third Appellate District first concluded that the “entrance area and apron’””of the Foods Costoreis private under California law. (Opn.at pp. 11-16.) The court foundit necessary to addressthis issue because“if the front entrance and apron ofthe Foods Costore is a public forum, we need not considerthe constitutionality of the Moscone Act and Labor Code section 1138.1 because Ralph’s time, place, and mannerrestrictions were unreasonable for a public forum andthat conclusion byitself supports the trial court’s decision to deny injunctive relief.” (Opn.at p. 12.) Accordingto the court, “[t]he Foods Co store in College Square is indistinguishable from the stand-alone stores in shopping centers in [Van v. Target Corp. (2007) 155 Cal.App.4th 1375], a case in which the Court of Appealheldthat the entrance areas and apronsof suchstores are not public forums.” (Opn.at pp. 12-13.) The court rejected the Union’s reliance on Lane, supra, 71 Cal.2d 872 and Schwartz-Torrance, supra, 61 Cal.2d 766, which hold “that a privately owned shopping center must permit peaceful picketing of businesses and shopping centers, even though such picketing may harm the shopping center’s businessinterests.” (Fashion Valley, 42 Cal.4th atp. 864.) Although this Court endorsed Lane and Schwartz-Torrance in Fashion Valley, the Third Appellate District held that these cases “are no ‘ Elsewhere, the court referred to the walkway in front of Foods Co as a “sidewalk or apron.” (Opn. at p. 7.) The court did not define the term “apron.” longer independently viable” and “cannotbe read to expandthe rights of individuals engaging in speech on private property beyond the analysis of Pruneyard and Fashion Valley.” (Opn. at pp. 15-16.) The Third Appellate District next held that the Moscone Actis unconstitutional, findingit “denies the property owner involvedin protest over a labor dispute access to the equity jurisdiction of the courts even thoughit does not deny such accessif the protest does not involve a labor dispute.” (Opn.at p. 22.) Relying on Mosley, supra, 408 U.S. 92, and Carey, supra, 447 U.S. 455, the Third Appellate District held that the MosconeActis therefore unconstitutionally content-based underthe First Amendment. The court recognized an “obvious difference” between the Moscone Act and the lawsat issue in Mosley and Carey. The Moscone Act “selectively allows speech in a private forum”by “withdrawing a remedy of the property owner,” while the laws at issue in Mosley and Carey “selectively excluded speech from a public forum based on content.” (Opn. at p. 21 [emphasis added].) But the court found this distinction legally irrelevant because the Moscone Act“forces Ralphs to provide a forum for speech based onits content.” (Opn.at pp. 21-22 [citing Pacific Gas & Elec. Co. v. Pub. Utils. Commn. (1986) 475 U.S. 1].) The Third Appellate District then held that Labor Code §1138.1 “suffers from the same constitutional defect as the Moscone Act” becauseit 14 “adds requirements for obtaining an injunction against labor protesters that do not exist when the protest, or other form of speech,is not labor related.” (Opn.at p. 28.) According to the court, Labor Code §1138.1 therefore “abridges Ralphs’s free speech rights by forcing it to host or accommodate speech with whichit disagrees.” (Opn.at p. 33.) The Third Appellate District concluded that the Moscone Act and Labor Code §1138.1 violate Ralphs’s First Amendmentrights sua sponte. Neither party argued that Ralphs’s free speech rights were implicated in the case. Havingruled the statutes unconstitutional, the court held that Ralphs met the general requirements for a preliminary injunction. (Opn.at p. 36.) It accordingly reversed and remanded with instructions to grant the preliminary injunction. (Opn.at p. 37.) This Petition for Review is timely filed, pursuant to California Rules of Court, Rule 8.500(e)(1), after the Court of Appeal’s July 19, 2010 decision, for which Respondentdid not seek a petition for rehearing. LEGAL DISCUSSION I. The Court Should Grant Review to Correct the Third Appellate District’s Misapplication of First Amendment Content-Discrimination Doctrine. The Third Appellate District struck down two California statutes using constitutional reasoning that would apply equally to many 15 uncontroversial laws. To reach its conclusion, the Court of Appeal overrode this Court’s precedent and created a conflict with the First Appellate District. This Court’s intervention is necessary to return the law to its previouslysettled state. A. Labor Code §1138.1 is a proceduralstatute that does not abridge speech. Labor Code §1138.1 establishes the procedural prerequisites a party must meet before an injunction mayissue in a labor dispute. It is modeled after the Norris-LaGuardia Act, 29 U.S.C. §107 (see WaremartI, supra, 87 Cal.App.4th at p. 159), and requires, amongotherthings, that the party seeking the injunction demonstrate that unlawful acts have been threatened and will be committed absent an injunction; that substantial and irreparable injury to the complainant’s property will follow; and that the police are unable or unwilling to furnish adequate protection. (Lab. Code §1138.1(a); cf. 29 U.S.C. §107(a)-(e).) Like Norris-LaGuardia, Labor Code §1138.1 was designed to remedyjudicial abuseof injunctions in labor disputes and tolimitstate- court involvementin matters better resolved by administrative tribunals. (WaremartI, 87 Cal.App.4th at p. 159; see also Marine Cooks & Stewards v. Panama S.S. Co. (1960) 362 U.S. 365, 369, fn.7 [enactment of Norris- LaGuardia “was promptedbya desire . . . to withdraw federal courts from a 16 type of controversy for which many believed they were ill-suited”].)? The Legislature, like Congress, recognized that the peculiar natureof labor disputes meansthat injunctive relief frequently dictates the outcomeofthe dispute. (See Burlington No. Santa Fe Ry. Co. v. Int'l Bhd. of Teamsters Local 174 (9th Cir. 2000) 203 F.3d 703, 707.) Byits terms, Labor Code §1138.1 applies wheneveran injunctionis sought in a case “involving or growing outof a labor dispute,” regardless of the injunction’s subject. (Lab. Code §1138.1(a).) It does not apply exclusively, or even primarily, to speech. Even whenapplied to injunctions against expressive activity, Labor Code §1138.1 is viewpoint neutral—its restrictions apply equally whenthe injunction is sought by(or against) a union, an employer, or an individual employee.” And while the Third Appellate District characterized Labor Code §1138.1’s procedural requirementsas “virtually impossible” to meet (Opn.at p. 2), federal courts issue injunctions against unions under similar requirements. 5 Labor Code §1138.1 is also similar to the “Little Norris-LaGuardia” statutes passed in many other states. (See M Restaurants, supra, 124 Cal.App.3d at p. 674.) In Senn v. Tile Layers Union (1937) 301 U.S. 468, the Supreme Court found Wisconsin’s Little Norris-LaGuardia statute— and by implication those of other states—to be constitutional under the Fourteenth Amendment. ° See, e.g., Amalg. Transit Union Div. 1384 v. Greyhound Lines (9th Cir. 1977) 550 F.2d 1237; Aluminum Workers v. Consolidated Aluminum Corp. (6th Cir. 1982) 696 F.2d 437, 441. 7 See, e.g., San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters (9th Cir.1997) 125 F.3d 1230. 17 Prior to the decision below, no other court had questioned the constitutionality of Labor Code §1138.1 or of the Norris-LaGuardia Act on whichit is based. Andto reach its conclusion, the Third Appellate District had to overrule its own precedent. In Waremart I, supra, 87 Cal.App.4that pp. 157-159, the Third Appellate District upheld Labor Code §1138.1 over an identical challenge, holdingthat the statute “places no limitations on the location or content of speech. It is, rather, a rule of procedure applicable to the obtaining of injunctive relief in state court and does not address speech[.]” (/d. at p. 158.) The court specifically rejected the appellant’s reliance on the Supreme Court’s Mosley and Carey opinions—the same cases the court now cites to strike downthe statute. (See id. at pp. 157-58.) The court below characterized Mosley and Carey as holding that “treating speech concerning a labor dispute differently from other types of speech constitute[s] unconstitutional content-based discrimination under the First and Fourteenth Amendments.” (Opn.at p. 17.) But Mosley and Carey do notstandfor this broad principle. (See R.A.V. v. City ofSaint Paul (1992) 505 U.S. 377, 420 (Stevens, J., concurring) [“Contrary to the broad dicta in Mosley, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding ofthe First Amendment.”]; cf. id. at pp. 387-88 [Scalia, J.].) 18 Both cases involved lawsthat restricted speech on public sidewalks based on content. In Mosley, the ordinance barred picketing and demonstrating on a “public way” within 150 feet of a school, except for peaceful picketing of a schoolinvolved in a labor dispute. (Mosley, supra, 408 U.S.at pp. 92-93.) Carey struck down statute that prohibited picketing of residences on public streets and sidewalks, but exempted picketing places of employmentsubject to labor disputes. (Carey, supra, 447 US.at pp. 457, 460.) In eachcase, it was the law’s content-based restriction on speech that madethe law constitutionally suspect. (Mosley, supra, 408 U.S.at p. 99 [In this case, the ordinanceitself describes impermissible picketing not in terms oftime, place, and manner,butin terms of subject matter.”]; Carey, supra, 447 U.S.at p. 462 [“[I]t is the content of the speech that determines whetherit is within or withoutthe statute’s blunt prohibition.’’].) As the Third Appellate District implicitly recognized (see Opn.at p. 21), Labor Code §1138.1 is fundamentally different from the laws in Mosley and Carey,in at least three respects. First, section 1138.1 does not restrict anyone’s speech, even indirectly. It selectively, and without regard to viewpoint, protects speech by making it more difficult for private parties to get speech-restraining injunctions. Only abridgements of speech, whether content-basedor not, violate the First Amendment. (U.S. Const., amend.I; Ysursa v. Pocatello Educ. Assn. (2009) 555 U.S. [129 S.Ct. 19 1093, 1098]; Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999) 528 U.S.32, 40.) It is “the government’s ability to impose content- based burdens on speech[that] raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” (Simon | & Schuster, Inc. v. Membersofthe N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116 [emphasis added].) No similar concern exists here. Second, Labor Code §1138.1 does not involve governmental abridgementof speech. It simply makes it moredifficult for private parties to get injunctions to enforce their right against trespass. A private property owner’s invocation of commonlaw trespassis not state action under the First Amendment. (Hudgens v. NLRB (1976) 424 U.S. 507, 513; Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 547.) Finally, as WaremartI correctly ruled, Labor Code §1138.1 is essentially a procedural statute—itrestricts state court equity jurisdiction, it does not directly regulate speech. (Waremart I, 87 Cal.App.4th at p. 158.) The Third Appellate District’s novel conclusion that identical judicial procedures mustbe available regardless of the character of speech involved is contrary to the Supreme Court’s approach to defamationsuits in the media and labor contexts. (See New York Times v. Sullivan (1964) 376 U.S. 254; Farmer v. United Bhd. ofCarpenters, Local 25 (1977) 430 U.S. 290, 299 [requiring heightened actual malice standard in defamationsuits arising out of labor disputes].) Presumably, it would also invalidate 20 content-based procedures such as California’s anti-SLAPP statute, which protects only speech about an “issue of public interest,” and California’s many content-based evidentiary privileges. (See Code Civ. Proc. §425.16, Evid. Code §990 et seq.) The Third Appellate District’s absolutist position—that any differentiation between speech onthebasis of its contentis subjectto strict scrutiny—has neverbeen the law. [Davenport v. Washington Educ. Assn., supra, 551 U.S.at p. 188 [It is true enough that content-based regulations of speech are presumptively invalid. We have recognized, however,that ‘[t]he rationale of the general prohibition. . . is that content discrimination “raises the specter that the Government mayeffectively drive certain ideas or viewpoints from the marketplace.” ’ And we haveidentified numerous situations in whichthat risk is inconsequential, so that strict scrutiny is unwarranted.”] [internal citations omitted]; Los Angeles Alliancefor Survival, supra, 22 Cal.4th at p. 368 [“Contrary to plaintiffs’ view,[the Supreme Court’s] decisions do not require literal or absolute content neutrality, but instead require only that the regulation be ‘justified’ by legitimate concernsthat are unrelated to any “disagreementwith the message’ conveyedby the speech.”].) Even in the realm of speech restrictions, the governmentis permitted to impose content-based prohibitions in many circumstances, includingin limited public fora such as 21 military bases, student organizations, and state-sponsored charity events;® to promoteparticular categories of speech through the tax code and other subsidies:? and to address detrimental secondary effects of the speech.” The Third Appellate District’s invalidation of Labor Code §1138.1 threatens a substantial amountoflegislation. In addition to the state procedural statutes discussed above, the Court of Appeal’s reasoning would invalidate speech-protective legislation that limits landlords’ contractual and property rights when invokedagainst certain tenant speech(see Civ. Code §§798.51, 1942.5 & 1942.6), and statutes protecting journalists and doctors, but not other speakers, from common-law defamation (see Civ. Code §§48a & 43.7; cf. Werner v. S. Cal. Associated Newspapers (1950) 35 Cal.2d 121, 130-31 [rejecting equal protection challenge to Civil Code §48a’s extension ofprivileges to newspapers andradio stations that are denied to others]). Whistleblower statutes such as Labor Code §1102.5 and Government Code §8547 would be subject to strict scrutiny, since they protect only speech on specified subjects. The Third Appellate District’s reasoning would invalidate the federal Norris-LaGuardia Act, as well as the 8 See, e.g., Greer v. Spock (1976) 424 U.S. 828; Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. (1985) 473 U.S. 788; Christian Legal Soc. Chapter ofthe Univ. of Cal., Hastings v. Martinez (2010)__ U.S. [130 S.Ct. 2971]. ? See, e.g., Rust v. Sullivan (1991) 500 U.S. 173; Regan v. Taxation Without Representation (1983) 461 U.S. 540. ‘0 See, e.g., Ward v. Rock Against Racism (1989) 491 U.S. 781, 791. —?) 22 “Little Norris-LaGuardia” Acts enacted by manyotherstates. (See M Restaurants, supra, 124 Cal.App.3dat p. 676.) The numberofuncontroversial statutes that the opinion below threatens showsthatit is the court’s constitutional reasoning—and not this legislation—thatis invalid. This Court should grant review to correct the Third Appellate District’s destabilizing misapplication of the First Amendmentto Labor Code §1138.1 a B. This Court’s interpretation of the MosconeAct in Sears II does not renderthat statute unconstitutional. The Moscone Actdiffers from Labor Code §1138.1 becauseit includes both procedural and substantive components. Separate analysis 1s therefore warranted. Like Labor Code §1138.1, the Moscone Act limits the equity jurisdiction of state courts. Enacted in 1975, it provides in relevant part 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” from “[g]iving publicity to. . . the facts involvedin, any labordispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving a If Labor Code §1138.1 applies, there is no need to go further, sinceit is undisputed that Ralphsfailed to meetthat statute’s requirements. 23 fraud, violence or breach of the peace.” (Code Civ. Proc. §527.3(b)(1).)"” These portions of the Act were “pattered after the [federal] Norris- LaGuardia Act, adopting its purposes as well as incorporatingits statutory definitions of a labor dispute.” (M Restaurants, supra, 124 Cal.App.3d at p. 674; cf. 29 U.S.C. §104.) To the extent the court below found the Moscone Act’s limitations on equity jurisdiction unconstitutionally content-based,this portion of the opinion suffers from the same defects as the opinion’s discussion of Labor Code §1138.1. As interpreted by plurality of this Court in Sears I, supra, 25 Cal.3d at pp. 324-30, the Moscone Actalso incorporates a substantive right, immunizing certain kinds of labor-related speech on private property from trespass law. The Moscone Act thusdiffers from Labor Code §1138.1 in that it categorically bars injunctions against certain labor-related speech. This distinction, however, does not make the Moscone Act unconstitutional. Like Labor Code §1138.1, the Moscone Act1s exclusively speech-protective. It simply abrogates a commonlawrule that may be wielded by a private party to limit speech. The Supreme Court has neverheld that such selective abrogation is unconstitutional. So holding would freeze the commonlawatits 19th century state of development and “representa return to the era of Lochner v. New York [(1905) 198 U.S. 45]. 2 The Act doesnot rule out declaratory relief or a damagesaction. 24 ... when common-law rights were also found immune from revision by State or Federal Government.” (Pruneyard, supra, 447 U.S.at p. 93 (Marshall, J., concurring].) Indeed, under the Third Appellate District’s approach, the NLRA would be unconstitutional, since that Act requires employers to allow their employees access to the worksite—commonlaw trespass and employment-at-will notwithstanding—in order to communicate about union matters, but not about other subjects. (Republic Aviation, supra, 324 U.S. 793.) In striking down the MosconeAct, the court below attempted to overrule another aspect of Sears IJ. There, the Court rejected a Fourteenth Amendmentchallenge to the Moscone Act, holding that the statute “indisputably bears a reasonablerelationship to legitimate state objectives,” and does not violate the due processclause or a property owner’s right to access the courts. (Sears IJ, supra, 25 Cal.3d at pp. 331-32 & fn.12.) The Third Appellate District decided that Sears IJ was not even “persuasive” authority because it did not discuss the Act’s constitutionality under the First Amendment and becauseit was a non-binding,“plurality” decision. (Opn.at pp. 23-24.) But Sears [J made clear that the primary purpose of the Act—“the elimination of unnecessary judicial intervention into labor disputes”—is a constitutionally legitimate one. The Court’s holding in this regard was endorsed by four Justices; only two dissentedto it. (Sears I, supra, 25 Cal.3d at p. 333 [Newman,J., concurring]; id. at pp. 336-337 25 (Richardson,J., dissenting].) And this Court ratified Sears /’s core holding twoyearslater. (/n re Catalano (1981) 29 Cal.3d 1, 13.) The decision below alsocreates a conflict with the First Appellate District, which rejected an equalprotection challenge to the Moscone Act. (M Restaurants, supra, 124 Cal.App.3d at pp. 677-78 [The “classification created bythestatute bears a rational relationship to its purpose as enunciated in section 527.3, subdivision (a).”].) The Third Appellate District sought to avoid this conflict by characterizing the First Appellate District’s extensive analysis andconstitutional ruling as “dicta.” (Opn.at pp. 26-27.) But the First Appellate District’s holding on the Moscone Act’s constitutionality was integralto its decision,as it applied the Act’s requirements to the employer’s injunction motion. (M Restaurants, supra, 124 Cal.App.3d at pp. 679-83.)° This Court should grant this Petition and review the Third Appellate District’s misapplication of First Amendment content-discrimination doctrine to the Moscone Act. 8 The Third Appellate District relied on Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870, 874-875 (WaremartII), which—ina scant paragraph—predicted that this Court would holdthat the Moscone Act violates the First Amendment. (Opn.at p. 27.) But Waremart I did not address any of the fundamental differences between the Moscone Actand the laws at issue in Mosley and Carey. Nordid it address the broad constitutional implications of such a holding, discussed herein. 26 II. The Court Should Grant Review to Correct the Third Appellate District’s Erroneous Conclusion that Commercial Property Owners Havea First Amendment Right to Exclude Unwanted Speech. As discussed, the court below recognizedthe crucial difference between the content-based laws struck down in Mosley and Carey and the laws at issue here. The former“selectively excluded speech from a public forum”; the Moscone Act and Labor Code §1138.1 “selectively a/low[] speech in a private forum.” (Opn. at p. 21 [emphasis added].) In other words, the Moscone Act and Labor Code §1138.1 do not involve governmental abridgementof anyone’s speech. The Court of Appeal avoided this fundamental problem withits constitutional theory by holding that the statutes infringe on Ralphs’s First Amendment rights.'* Citing Hurley, supra, 515 U.S.at p. 566 and Pacific Gas & Electric, supra, 475 U.S. 1, the court held that the Moscone Act and Labor Code §1138.1 abridge “Ralphs’s free speech rights by forcingit to host or accommodate speech with whichit disagrees.” (Opn.at pp. 31, 33.) This holding is wrong. A commercial property ownerlike Ralphs has no First Amendmentright to exclude speech with whichit disagrees. 8 The court thereby also avoided addressing Ralphs’s lack of third- party standing to complainthatthe statutes discriminate against other, non- labor speakers whom Ralphs may wantto silence. (See City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43, 61 [no third-party standing unless party’s interests are “inextricably bound up with” with absent party’s interests and absent party faces some “genuine obstacle”in asserting his or her owninterests].) 27 The Supreme Court first rejected this argumentin Pruneyard, supra, 447 U.S. 74. There, the appellants “‘contend[ed] that a private property owner has a First Amendmentright not to be forced by the State to use his property as a forum for the speech ofothers.” (/d.at p. 85.) The Supreme Court disagreed. It noted the government was not compelling speech—*‘no specific message is dictated by the State to be displayed on appellants’ property.” (/d. at p. 87.) Furthermore, because a shoppingcenteris “a business establishmentthat is open to the public to come andgo as they please[,] . . . [t]he views expressed by membersofthe public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner.” (/bid.) To the extentthere is any danger of confusion, shopping centers “are free to publicly dissociate themselves from the views of the speakers or handbillers.” (/bid.) In FAIR, supra, 547 U.S. 47, the Supreme Court again rejected the view endorsed by the Third Appellate District. There, an association of law schools challenged the Solomon Amendment, whichspecifies that if any part of a university denies military recruiters access equalto that provided other recruiters, the entire institution loses certain federal funds. The Supreme Court dismissed the argumentthat “by forcing law schools to permit the military on campusto expressits message, the Solomon Amendmentunconstitutionally requires law schoolsto host or accommodatethe military’s speech.” (/d.at p. 60.) 28 The Supreme Court distinguished Hurley and Pacific Gas & Electric—the two casesrelied upon by the Third Appellate District. The compelled-speech violation in each of these cases “resulted from the fact that the complaining speaker’s own message wasaffected by the speechit was forced to accommodate.” (FAR, supra, 547 U.S.at p. 63.) Citing to its decision in Pruneyard, the Supreme Court held that “accommodating the military’s message doesnot affect the law schools’ speech, because the schools are not speaking whenthey host interviews andrecruiting receptions.” (/bid.) As in Pruneyard,there “waslittle likelihood that the views of those engagingin the expressive activities would be identified with the owner, who remainedfree to disassociate himself from those views and who was ‘not... being compelled to affirm [a] belief in any governmentally prescribed position or view.’ ” (/bid.[internalcitation omitted].)"° The Third Appellate District reached its erroneous conclusion sua sponte, without any briefing on the issue. It failed to address or even mention the Supreme Court’s decisions in Pruneyard and FAIR. This Court should grant review to correct the Court of Appeal’s misreading of the First Amendment. ° The Supreme Court has separately madeclearthe “right of employers to exclude union organizers from their private property emanates from state commonlaw.” (Thunder Basin Coal Co. v. Reich (1994) 510 U.S. 200, 217, fn. 21.) 29 III. The Court Should Grant Review to Clarify the Application of PruneyardandIts Progeny to Walkways Abutting Retail Stores Located in Larger Shopping Centers and to Speech Related to Such Retail Stores. The Third Appellate District recognized that if the sidewalk in front of Foods Cois a public forum, there is no need to address the constitutionality of the Moscone Act or Labor Code §1138.1, since Ralphs’s time, place, and mannerrestrictions are unreasonable. (Opn.atp. 12.) The court held, however, that the “entrance area and apron”abutting Foods Cois not a public forum “because they were not designed and presented to the public as public meeting places.” (Opn.at p. 14.) The court so held even though this sidewalk connects Foods Coto College Square’s commonareas, numerousother speakers recognizethe sidewalk to be a public area for speech, and the Union’s speechrelated directly to Foods Co’s business. The Court should grant review to consider two important issues on which the State’s courts need guidance: (1) whetherretail store walkways and parking lots are public fora under California’s free speech clause when they are located in Pruneyard-type shopping centers and connectthe retail store to the center’s commonareas; and (2) whether such walkways and parkinglots are public fora for speech related to a retail store’s business. 30 A. The Court should grant review to address whether walkwaysand parkinglots abutting retail stores in larger shopping centers are public fora. Noting that central business districts—traditional and quintessential fora for free speech—have continued to yield their functions more and more to suburbancenters,” this Court held that the California Constitution, art. I, §2(a), “protect[s] speech andpetitioning, reasonably exercised,in shopping centers even whenthe centersare privately owned.” (Pruneyard, supra, 23 Cal.3d at pp. 907, 910.) The Court recently re-affirmedthis principle , holding that “private property can constitute a forum forfree speechif it is open to the public in a mannersimilar to that of public streets and sidewalks.” (Fashion Valley, supra, 42 Cal.4th at p. 858.) Pruneyard recognizeda limited exception to its holding for whatit termed “modestretail establishments.” (23 Cal.3d at p. 910.) But several recent appellate decisions, culminating in the decision below,havecreated an “exception”to Pruneyardthat threatens to swallow the rule and make the doctrine unworkable. These snowballing exceptions began with Albertson’s v. Young (2003) 107 Cal.App.4th 106, in which the Third Appellate District held that the walkwayin front of a grocery store was not a Pruneyard forum. The court considered whetherthe grocery store’s location in a larger shopping center impressed the walkway“with the character of a public forum.”(Jd. at p. 121.) Relying on the fact that the shopping center contained “no 31 enclosed walkways, plazas, courtyards, picnic areas, gardens,or other areas that might invite the public to congregate” the court ruled that the grocery store’s location in the shopping centerdid “not impress the walkways of Albertson’s store with the characterofa traditional public forum.” (/bid.) Next, in Van v. Target Stores (2007) 155 Cal.App.4th 1375, the court held that the “apron and perimeter area”of the respondents’ big-box retail stores were not public fora, despite the fact that the stores were located “in larger, Pruneyard-type shopping centers.” (/d. at pp. 1389-90.) The court acknowledgedthat, unlike in A/bertson’s, the shopping centers in which the respondents’ stores were located contained “a uniform architectural scheme”and “plazas and courtyards that encourage patronsto congregate.” (Id. at p. 1390.) But the “particular location” involved—the stores’ aprons and perimeter areas—didnot possessthe characteristics of a public forum. The decision below goesfurther and places the walkways and parking lots abutting retail stores located in Pruneyard-type shopping centers categorically outside of California’s free speech clause. The Third Appellate District did not dispute that College Squareis itself a Pruneyard forum—despite Ralphs’s argumentto the contrary. (Cf. Opn.at pp. 13-14.) The walkway and parkinglotin front of Foods Co are connectedto the shopping center’s three courtyards through an integrated system of sidewalks. One courtyard abuts Foods Co andis reached using the 32 sidewalk (or ‘‘apron’”) passing in frontof the store. Religious,political and commercial speakersuse this sidewalk and the parking lot to communicate with the public, further demonstrating that these areas are designed to further College Square’s function as a public meeting place. (RT 33-34, 58-59, 63-67; 3JA 498-504.) The decision below thus takes recent, questionable exceptions to Pruneyard to a radical extreme. Underthe court’s artificial distinction, courtyards, plazas, outdoor restaurants, and other “commonareas”in a Pruneyard—type shopping center are free-speech zones, but not the parking lots and sidewalks that the public uses to traverse the center and reach these common areas. The court thus jettisoned Pruneyard's central analogy— that the “streets and sidewalks of the central business district, which “have immemorially been held in trust for the use of the public,’” are available for free speech evenif they are located within a private shopping center. (See Fashion Valley, supra, 42 Cal.3d at p. 858 [internal citation omitted].)'° If left standing,the decision below will greatly erode the constitutional rights this Court affirmed in Fashion Valley. Simply by “designing and presenting” as purely commercialall but a few out-of-the- 'e The court’s conclusion that Pruneyard does not apply to sidewalks and parking lots outside commercial buildings is also inconsistent with federal cases construing Pruneyard. (See NLRB v. Calkins (9th Cir. 1999) 187 F.3d 1080, 1090-1092; Kuba v. 1-A Agric. Assn. (9th Cir. 2004) 387 F.3d 850, 856; Cuviello v. City ofStockton (E.D. Cal. 2008) 2008 WL 4283260; Cuviello v. City ofOakland (N.D. Cal. 2007) 2007 WL 2349325.) 33 way “commonareas,” shopping centers will regain the veto over free speechrights that Pruneyard held unconstitutional. The Court should grant review to square the Third Appellate District’s decision with Pruneyard and FashionValley. B. The Court should grant reviewto clarify the constitutionalright to use sidewalksin front of retail businesses for speech related to the business. The Third Appellate District found it irrelevant that the Union’s speech advocated a boycott of Foods Co. But in Fashion Valley, this Court held that “i]t has been the law since we decided Schwartz-Torrance in 1964, and remains the law,that a privately owned shopping center must permit peaceful picketing of businesses in shopping centers, even though such picketing may harm the shopping center’s business interests.” (Fashion Valley, supra, 42 Cal.4th at p. 864.) This Court madeclearthat Schwartz-Torrance and Lane, although originally based on a federal interpretation of the First Amendmentthat subsequently took a divergent path, remain precedent for interpreting California’s free speech clause. (Fashion Valley, 42 Cal.4th at p. 864, fn.6 [citing Pruneyard, supra, 23 Cal.3d at p. 908; Golden Gateway Ctr. v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1032].) 34 Evenpriorto this Court’s re-affirmation of Schwartz-Torrance and Lane, courts of appeal recognized these cases to mean that state free speech rights can outweigh private property rights even in non-Pruneyard fora, whenthe speechpresents a grievance against a particular business. (See, e.g., Costco Co. v. Gallant (2002) 96 Cal.App.4th 740, 755 [“Admittedly, wherethe property owneritself is the subject of a public dispute or controversy—asfor instance a labor dispute—its property may as a practical matter be the only available forum to effectively express views on the controversy and it may be requiredto give its opponents accessto its property.”|; Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1028-1029 [fact that religious protest wasrelated to strip club in shopping center weighsin favor of allowing protestors on private property].)'” Ignoring this Court’s affirmation ofLane and Schwartz-Torrance under California’s free speech clause, the Third Appellate District held that “those cases were based on the now-discredited notion that the First Amendmentof the United States Constitution may prohibit private property owners from restricting expressive activities on their properties.” (Opn.at 7 Other courts of appeal interpret Lane and Schwartz-Torrance to be part of a general balancing test for determining whethera particularstore 1s a Pruneyard public forum. (See,e.g., Albertson's, supra, 107 Cal.App.4th at p. 123 [questioning Lane’s continued viability but holding that “[t]he fact that the expressive activity was specifically related to the business use of the property in that case tipped the balancein favor of expressive access.”’]; Trader Joe’s Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425, 435-436.) 35 p. 15.) Effectively overruling this Court’s opinions,it held that “Lane and Schwartz-Torrance are no longer independently viable . . . [and] cannot be read to expandrights of individuals engaging in speech on private property beyondthe analysis in Pruneyard and Fashion Valley.” (Opn.at p. 16.) But in Fashion Valley, this Court interpreted its prior cases to mean that “citizens have a strengthenedinterest, not a diminishedinterest, in speech that presents a grievance against a particular business in a privately owned shoppingcenter, including speech that advocates a boycott.” (Fashion Valley, supra, 42 Cal.4th at p. 864.) Lane’s interpretation of the First Amendmentapplies equally to California’s free speech clause: “If we were to hold the particular sidewalk area to be ‘off limits’ for the exercise of First Amendmentrights in effect we would be sayingthat by erecting a ‘cordonsanitaire’ aroundits store, [the store] has succeeded in immunizing itself from on-the-spot public criticism.” (Lane, supra, 71 Cal.3dat p. 871.) The Third Appellate District’s opinion rejects Lane and Schwartz- Torrance, conflicts with Fashion Valley, and parts with the approach taken by other courts of appealin balancing private property rights againstthe constitutional interest in on-the-spot public criticism of commercial businesses. This Court should grant review to clarify the relation of Lane and Schwartz-Torrance to Pruneyard andits progeny. 36 CONCLUSION Forall the foregoing reasons, United Food & Commercial Workers 8 respectfully requests that the Court grant this Petition for Review. Dated: August 27, 2010 Respectfully submitted, DAVIS, COWELL & BOWE LLP By: 37 Paul L. More Steven L. Stemerman Elizabeth A. Lawrence Andrew J. Kahn Sarah Grossman-Swenson Attorneys for Defendant and Respondent United Food & Commercial Workers Local 8 CERTIFICATE OF WORD COUNT Pursuant to Rule 8.204(c)(1) of the California Rules of Court, counsel herebycertifies that the above brief is produced using 13 point Times New Romanfont, with 13-point and 14-point Cambria font for the headers, and contains 8,378 words, including footnotes, and excluding the cover, the signature block and this certificate. Counsel relies on the word count of the computer program usedto preparethis brief. Dated: August 27, 2010 DAVIS, COWELL & BOWE, LLP By: ck.Le. Z ee co Edzabeth A. Lawrence Attorneys for Defendant and Respondent United Food & Commercial Workers Local 8 EXHIBIT A Filed 7/19/10 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) RALPHS GROCERY COMPANY, C060413 Plaintiff and Appellant, (Super. Ct. No. 34-2008-00008682-CU- Vv. OR-GDS) UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 8, Defendant and Respondent. 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. In this case, a union peacefully picketed in front of a grocery store, a private forum, contrary to the grocery store’s 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 California’s 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. v. Lemen (2007) 40 Cal.4th 1141, 1147.) “For corporations as 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 L.Ed.2d 1, 12].) Forcing a speaker to host or accommodate another speaker’s message violates the host’s 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 parade’s 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. A law may not restrain or abridge liberty of speech or press.” (Cal. Const., art. I, § 2, subd. (a).) Concerning private property, the constitution states: “All people are by nature free and independent and have inalienable rights. Among these are . . . acquiring, possessing, and protecting property... .” (Cal. Const., art. I, § 1.) “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 [exercising the court’s equity jurisdiction] is an appropriate remedy for a continuing trespass. [Citation.]” (Alired v. Harris (1993) 14 Cal.App.4th 1386, 1390 (Allred).) However, if the private property is a public forum under the California Constitution, the courts may not enjoin those who enter the private property and engage in speech, conforming with the reasonable time, place, and manner restrictions of the property owner, because, under those circumstances, the owner has no right to exclude, and, therefore, it is not a trespass. (Ibid.) The elements of a common law trespass are (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) the defendant’s conduct as a substantial factor in causing the harm. (See CACI No. 2000.) Whether the areas within shopping centers and around large retail stores are public forums for the purpose of speech under California law has been the subject of litigation for many years. In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), the California Supreme Court held that the liberty of speech clause of the California Constitution protected speech in a privately-owned shopping center, subject to the owner’s reasonable time, place, and manner restrictions, because the owner had created a public forum for speech. (See Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 858 (Fashion Valley) [following Pruneyard].) The shopping center at issue in Pruneyard consisted of 21 acres, with 65 shops, 10 restaurants, and a cinema. (Pruneyard, supra, at p. 902.) Subsequent cases decided by the Courts of Appeal have distinguished the large Pruneyard-type shopping center from large individual retail stores, even though those stores are located within a larger retail development. These cases have held that the entrance areas and aprons of these large retail stores do not present a public forum. (See, e.g., Van v. Target Corp. (2007) 155 Cal.App.4th 1375 (Van); for a detailed analysis of the cases leading to this holding, see Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106, 113-120 (Albertson’s) .) In addition to the constitutional provisions that may restrict a court from granting relief to a private property owner when California’s liberty of speech clause is implicated, two statutes apply to relief that may or may not be granted when the speech relates to a labor dispute. Those statutes are Code of Civil Procedure section 527.3, also known as the Moscone Act, enacted in 1975 (Stats. 1975, ch. 1156, § 1, p. 2845), and Labor Code section 1138.1, enacted in 1999 (Stats. 1999, ch. 616, § 1). The Moscone Act limits the equity jurisdiction of the courts in cases involving labor disputes. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 321 (Sears ITI).) (We refer to this case as Sears II because that is how it is referred to in most cases and literature on the subject, even though there is no reason here to discuss the prior decision arising from that case.) The Moscone Act declares that conduct relating to a “‘labor dispute,’” such as peaceful picketing, “shall be legal, and 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 [engaging in the specified conduct].” (Code Civ. Proc., § 527.3, subd. (b).) The Moscone Act defines “‘labor dispute’” broadly. (Code Civ. Proc., § 527.3, subd. (b) (4).) Without referring to the Moscone Act, Labor Code section 1138.1 restricts the authority of the courts to issue a preliminary or permanent injunction in a case involving a labor dispute. It requires the court in such a case to hold a hearing with live witnesses and to make findings of fact as prerequisites to issuing an injunction. (Lab. Code, § 1138.1, subd. (a).) Before a court may grant injunctive relief ina labor dispute, the court must make all of the following factual findings: “(1) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authorized those acts. “(2) That substantial and irreparable injury to complainant’s property will follow. “(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial -of relief than will be inflicted upon defendants by the granting of relief. “(4) That complainant has no adequate remedy at law. “(5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.” (Lab. Code, § 1138.1, subd. (a).) With this legal background in mind, we turn to a discussion of the facts and procedure unique to this case. FACTS AND PROCEDURE Plaintiff Ralphs Grocery Company (Raiphs) owns Foods Co, a large warehouse grocery store located in Sacramento in a retail development called College Square. The employees of Foods Co are not represented by a union. Defendant United Food and Commercial Workers Union Local 8 (the Union) has negotiated with Ralphs to make Foods Co a union store, but the parties reached an impasse. The store has only one entrance for customers. In front of the entrance of Foods Co is a sidewalk or apron that extends out about 15 feet to the asphalt of a driving lane that separates the apron from the parking lot. The entrance area (including the exit door) is about 31 feet wide. Around the corner on the left side of the Foods Co building, looking at the building from the front, there is a courtyard area with three benches and a large circular planter. The benches are up against the side of the Foods Co building. Beyond the courtyard is a separate building with a hair salon, a nail salon, and a beauty supply store. College Square, not Foods Co, maintains the courtyard area. There was no evidence that the Union was using or intended to use this courtyard area for its speech. On the right side of Foods Co, attached to the Foods Co building, are an empty retail space and two fast-food restaurants. Several more retail establishments are located in College Square, some of them restaurants with outside seating. A large parking lot serves the customers of all the retail establishments in College Square. Foods Co opened on July 25, 2007. On that day, between eight and 10 agents of the Union picketed the store, encouraging people not to shop at Foods Co because it is not a union store. They walked back and forth in front of the doors, carrying picket signs and handing out flyers. The Union’s agents returned generally five days each week and engaged in the same activities, staying about eight hours. In January 2008, Ralphs gave to the Union a memorandum containing Foods Co’s rules for speech on the premises. The rules prohibited distribution of literature, physical contact with any person, and display of signs larger than two feet by three feet. The rules also prohibited speech within 20 feet of the store entrance and banned all speech during specified hours of the day and for a week before designated holidays. The Union’s agents generally did not adhere to Foods Co’s rules for speech. They handed out flyers and stood within five feet of the doors. Foods Co management called the Sacramento Police Department and asked the officers to remove the Union’s agents. The officers gave the Union’s agents a copy of Foods Co’s rules for speech and told Foods Co management that giving the rules to the Union’s agents was all they would do at that point because the Sacramento Police Department is unwilling to remove peaceful picketers from Ralphs’s property. After the officers left, the Union’s agents continued to violate Foods Co’s rules. Several other groups or individuals have used Foods Co’s entrance area and apron, as well as the parking lot, to engage in speech. Groups or individuals have solicited money for causes, panhandled, gathered signatures on petitions, and sold, at various times, subscriptions to a newspaper, DVDs, and tamales or burritos. On April 15, 2008, Ralphs filed a complaint against the Union in the Sacramento Superior Court. The complaint alleged trespass and sought declaratory and injunctive relief to prevent the Union from using Ralphs’s property as a forum for expression of the Union’s views. Ralphs applied for a temporary restraining order, which the trial court denied. However, the court issued an order to show cause and set an evidentiary hearing on whether to issue a preliminary injunction. Before the evidentiary hearing was held, the parties submitted briefing on the law involved in the dispute. The trial court issued a tentative ruling concerning the law in which the court held that (1) the Moscone Act violates the First and Fourteenth Amendments of the United States Constitution, considering United States Supreme Court precedent, and is therefore unenforceable; (2) the trial court is bound by the decision of this court in Waremart Foods v. United Food & Commercial Workers Union (2001) 87 Cal.App.4th 145 (Waremart I), in which we held that Labor Code section 1138.1 does not violate federal and state constitutional guarantees of equal protection; and (3) the evidentiary hearing would focus on whether, applying Labor Code section 1138.1, “Ralphs is entitled to injunctive relief under California law, considering the issue of whether the location in question is a public forum, and if so, whether the time, place and manner restrictions on expressive speech are reasonable.” Concerning the Moscone Act, the trial court stated that it “constitutes content based discrimination that violates the [First] [A]mendment and Equal Protection Clause. And, the Court is bound by the U.S. Supreme Court cases holding that statutes that favor one type of speech over another violate the [First] [A]mendment. (Citation of two United States Supreme Court cases, discussed below.]” Concerning Labor Code section 1138.1, the trial court stated that it would have similarly found that statute unconstitutional if the court was not bound by Waremart I (also discussed below). The court believed our decision was “based on an erroneous interpretation of the holding of the U.S. Supreme Court cases ... .” However, because the trial court was bound by the case from this court, the trial court set a date for the evidentiary hearing pursuant to Labor Code section 1138.1. After the evidentiary hearing, the trial court concluded that Ralphs had failed to introduce evidence sufficient to carry its burden of proof as to any of the five elements enumerated in Labor Code section 1138.1. The court stated: 10 “The Court finds that {Ralphs] operates a grocery store, Foods Co, at which the defendant Union has picketed five days a week, 8 hours a day, since the store opened in July 2007. The evidence did not establish that the Union had committed any unlawful act, or that it had threatened to do so. There was no evidence that anything the [Union was] doing would cause any ‘substantial and irreparable injury’ to the store property, or that public officers were unable or unwilling to furnish adequate protection to plaintiff’s property. “The evidence established that other persons on the property to solicit money or signatures for their own causes placed themselves in the zone that Ralphs had declared off- limits (e.g.[,] in front of the doors), but apparently did not cause any undue disruption to Ralphs’ business since little effort was made to remove them. No evidence established that anything that the [Union] did was any more disruptive tha[n] the actions of others. Ralphs has failed to carry its burden of proof that its rules are reasonable time, place and manner restrictions within the guidelines of [Fashion Valley].” The trial court therefore denied Ralphs’s motion for a preliminary injunction. DISCUSSION I Public or Private Forum We first turn to the question of whether the entrance area and apron of the Foods Co store is a public or private forum. Rejecting the Union’s argument, discussed below, that we need 11 not consider this question, we conclude that the entrance area and apron of the Foods Co store is a private forum under California law. The Union asserts that we need not consider this issue because the trial court denied the injunction on other grounds -- namely, that Ralphs failed to bear its burden on the elements required by Labor Code section 1138.1 for an injunction. We disagree with the Union for two reasons. First, the trial court found that Ralphs’s time, place, and manner restrictions were unreasonable, citing Fashion Valley. Such an analysis is necessary only if we are dealing with a public forum. Therefore, even though the trial court did not expressly find that the front entrance and apron of the Foods Co store is a public forum, it did so implicitly by applying the public forum analysis. And second, if the front entrance and apron of the Foods Co store is a public forum, we need not consider the constitutionality of the Moscone Act and Labor Code section 1138.1 because Ralphs’s time, place, and manner restrictions were unreasonable for a public forum and that conclusion by itself supports the trial court’s decision to deny injunctive relief. It is against the policy of the courts of this state to “to reach out and unnecessarily pronounce upon the constitutionality of any duly enacted statute.” (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65.) The Foods Co store in College Square is indistinguishable from the stand-alone stores in shopping centers in Van, supra, 155 Cal.App.4th 1375, a case in which the Court of Appeal held 12 that the entrance areas and aprons of such stores are not public forums. In Van, a group sued Target, Wal-Mart, and Home Depot for prohibiting their signature gathering activities at a table off to the side of the entrance to each store. (Id. at pp. 1378- 1379.) Each of these large retail stores was located in “larger retail developments,” with “amenities provided by those centers, including their restaurants, theaters, and community events.” (Id. at p. 1380.) Applying Pruneyard and its progeny, the Van court stated that “the apron and perimeter areas of [the] stores do not act as the functional equivalent of a traditional public forum.” (Id. at p. 1388.) The Van court continued: “(The defendants’] stores -- including the store apron and perimeter areas -- are not designed as public meeting spaces. The stores’ invitation to the public is to purchase merchandise and no particular societal interest is promoted by using the stores for expressive activity. As such, [the defendants’] interest in maintaining control over the area immediately in front of their stores outweighs society’s interest in using those areas as public fora. We are not persuaded by [the plaintiff’s]}] central argument that the presence of [the] stores in larger, Pruneyard- type shopping centers alters this balance.” (Van, supra, at p. 1390.) Distinguishing the front of the large, individual stores from the common areas of the shopping centers, the Van court concluded: “We decline to extend the holding in Pruneyard to 13 the entrance and exit area of an individual retail establishment within a larger shopping center. (The plaintiffs’] evidence concerning the public nature of certain shopping centers’ common areas failed to raise a triable issue of fact as to whether apron and perimeter areas at the entrances and exits of [the defendants’] stores served as public fora.” (Van, supra, at p. 1391; see also Albertson’s, supra, 107 Cal.App.4th at pp. 109- 110 [holding that entrance area of grocery store not a public forum even though store located in shopping center]}.) The same is true here. Although there was evidence that College Square included common areas and restaurants where outdoor seating was available, the entrance area and apron of Foods Co did not include such areas. Thus, because they were not designed and presented to the public as public meeting places, the entrance area and apron of Foods Co is not a public forum under the liberty of speech clause of the California Constitution. And because the area was not a public forum, Ralphs, as a private property owner, could limit the speech allowed and could exclude anyone desiring to engage in prohibited speech. This remains true even though Ralphs granted the right to other groups to use the entrance and apron area of Foods Co for speech. The trial court found that groups unrelated to the Union were allowed to solicit money or signatures in the front entrance area. But this did not transmute the property into a public forum. A private owner may selectively permit speech or prohibit speech in a private forum without affecting the private 14 nature of the forum. (Albertson’s, supra, 107 Cal.App.4th at p. 125.) Despite this authority supporting our conclusion that the area in front of the Foods Co store is a private forum and, therefore, the Union cannot assert free speech rights as a bar to injunctive relief, the Union cites cases of the California Supreme Court which, as the Fashion Valley court stated, held that “a privately owned shopping center must permit peaceful picketing of businesses and shopping centers, even though such picketing may harm the shopping center’s business interests.” (Fashion Valley, supra, 42 Cal.4th at p. 864.) Those cases include In re Lane (1969) 71 Cal.2d 872 (Lane) and Schwartz- Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 (Schwartz-Torrance). We have noted, as did the Fashion Valley court, that those cases were based on the now-discredited notion that the First Amendment of the United States Constitution may prohibit private property owners from restricting expressive activities on their properties. (Fashion Valley, supra, at p. 861; id. at p. 880, diss. opn. of Chin, J.; Albertson’s, supra, 107 Cal.App.4th at p. 123.) Considering the United States Supreme Court and California Supreme Court cases decided since Lane and Schwartz-~Torrance, which relied on the First Amendment, the only continuing vitality of Lane and Schwartz-Torrance lies in the jurisprudence of the analogous liberty of speech clause in the California Constitution. Lane and Schwartz-Torrance are no longer independently viable. Thus, Lane and Schwartz-Torrance cannot 15 be read to expand the rights of individuals engaging in speech on private property beyond the analysis in Pruneyard and Fashion Valley. That analysis requires, as a starting point, a determination of whether the area is a public or private forum. Applying that analysis, we conclude that, because the area in front of the Foods Co store is not a public forum, the Union’s free speech rights, whether under the federal First Amendment or the state liberty of speech clause, are not infringed. Il Constitutionality of Statutes Having determined that the front entrance and apron of the Foods Co store is a private forum where Ralphs can restrict speech without constitutional constraints, we are faced squarely with the constitutionality of the Moscone Act and Labor Code section 1138.1, which withdraw from Ralphs the ability to obtain injunctive relief, the only peaceful means to protect Ralphs’s property and free speech rights. The Union’s agents entered Ralphs’s private property to engage in speech despite Ralphs’s prohibition and regulation of such conduct. Thus, unless state laws can be interpreted to make such conduct lawful, the Union’s agents were trespassing. We must decide whether the Moscone Act and Labor Code section 1138.1 validly prevented the trial court from enjoining the trespass. Applying binding precedents, we conclude that the Moscone Act and Labor Code section 1138.1 are unconstitutional. 16 A. Moscone Act The trial court concluded that the Moscone Act, which limits the court’s equity jurisdiction in labor relations cases, incurably violates the First and Fourteenth Amendments of the United States Constitution. We agree that the Moscone Act favors speech related to labor disputes over speech related to other matters, based on the content of the speech. Consequently, we also agree that the Moscone Act is unconstitutional and that the defect cannot be cured to render constitutional the application of the act to the facts of this case. | We first discuss the enactment of the Moscone Act, along with the California Supreme Court’s 1979 plurality decision in Sears II, interpreting the Moscone Act and finding that the act provides a right to engage in speech related to labor disputes on private property, regardless of whether the private property is a public forum under Pruneyard. We then discuss two decisions of the United States Supreme Court, Police Department v. Mosley (1972) 408 U.S. 92 [33 L.Ed.2d 212] (Mosley) and Carey v. Brown (1980) 447 U.S. 455 [65 L.Ed.2d 263] (Carey), which held that treating speech concerning a labor dispute differently from other types of speech constituted unconstitutional content- based discrimination under the First and Fourteenth Amendments. We finally conclude that the Moscone Act, as interpreted by the Sears II plurality, violates the First and Fourteenth Amendments 17 of the United States Constitution because it favors speech relating to a labor dispute over other types of speech. The Legislature passed the Moscone Act in 1975 “to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining, picketing or other mutual aid or protection, and to prevent the evils which frequently occur when courts interfere with the normal processes of dispute resolution between employers and recognized employee organizations ... .” (Code Civ. Proc., § 527.3, subd. (a).) In Sears II, the California Supreme Court reviewed an order restraining union agents from peacefully picketing ona privately owned sidewalk surrounding the plaintiff’s stand-alone department store. While the case was pending on appeal, the Legislature passed the Moscone Act, which the Supreme Court considered in reviewing the trial court order. (Sears II, 25 Cal.3d at pp. 320-321.) Three justices of the court cited the court’s prior decisions as establishing the legality of picketing on private sidewalks outside the store as a matter of state labor law. (Id. at p. 328.) Thus, the plurality concluded that “the sidewalk outside a retail store has become the traditional and accepted place where unions may, by peaceful picketing, present to the public their views respecting a labor. dispute with that store. Recognized as lawful by the decisions of this court, such picketing likewise finds statutory sanction in the Moscone Act, and enjoys protection from injunction by the terms of that act. In such context the location of the store whether it is on the main street of the downtown section of the 18 metropolitan area, in a suburban shopping center or in a parking lot, does not make any difference. Peaceful picketing outside the store, involving neither fraud, violence, breach of the peace, nor interference with access or egress, is not subject to the injunction jurisdiction of the courts.” (Id. at pp. 332- 333.) The Sears II plurality expressly declined to base its decision on Pruneyard’s interpretation of the California Constitution. Instead, the decision was based entirely on the Moscone Act. (Sears II, supra, 25 Cal.3d at pp. 327-328, fn. 5.) The Moscone Act therefore protects peaceful picketing on an employer’s private property if the picketing relates to a labor dispute. We next turn to the constitutional jurisprudence of the United States Supreme Court and the two cases, Mosley and Carey, that are most relevant to whether the Moscone Act violates the United States Constitution. In Mosley, a 1972 case, the United States Supreme Court considered a Chicago ordinance that generally prohibited picketing within 150 feet of a school, but made a specific exception for picketing in a labor dispute. The plaintiff was a man who frequently picketed, always peacefully, outside a high school, carrying a sign that stated that the high school discriminated racially. He sued for injunctive and declaratory relief because he was told that, if he picketed after the effective date of the ordinance, he would be arrested. (Mosley, supra, 408 U.S. at pp. 92-93.) The court held that the 19 ordinance violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment because of the ordinance’s “impermissible distinction between labor picketing and other peaceful picketing.” (Mosley, supra, at p. 94.) “The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. {[Citations.]” (Mosley, supra, at p. 95.) The Mosley court concluded: “Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference 20 to content alone.” (Mosley, supra, 408 U.S. at p. 96, fn. omitted.) In 1980, eight years after Mosley, the United States Supreme Court again considered selective prohibition of speech based on content. In Carey, the court found unconstitutional an Illinois statute that prohibited picketing on the public streets and sidewalks adjacent to residences but exempted picketing of a place of employment in a labor dispute. (Carey, supra, 447 U.S. at pp. 457, 471.) The court rejected the argument that the state’s interest in allowing labor protests justified the differential treatment. “The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. [Citation.]” (Id. at p. 466.) The obvious difference between the Moscone Act and the laws scrutinized in Mosley and Carey is that the Moscone Act 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 law favors speech related to labor disputes over speech related to other matters -- it forces Ralphs to provide a forum for speech based on its 21 content. (See Pacific Gas & Electric Co. v. Public Utilities Com., supra, 475 U.S. 1.) Governmental discrimination based on the content of speech is subject to strict scrutiny. (Fashion Valley, supra, 42 Cal.4th at p. 865.) It “may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest.” (Consolidated Edison v. Public Serv. Comm'n (1980) 447 U.S. 530, 541 [65 L.Ed.2d 319, 330}.) Here, the Union makes no argument that the Moscone Act passes strict scrutiny, that the Moscone Act is a narrowly- tailored law justified by a compelling state interest. Indeed, Mosley and Carey establish that there is no compelling government interest in forcing a property owner or possessor to allow speech related to a labor dispute when speech relating to other issues can be prohibited. (Carey, supra, 447 U.S. at pp. 464-467.) Accordingly, as applied in this case, the Moscone Act violates the First and Fourteenth Amendments of the United States Constitution. The Act affords preferential treatment to speech concerning labor disputes over speech about other issues. It declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing. And it denies the property owner 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. 22 Citing Sears II and the opinion of the Court of Appeal in M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary Etc. Union (1981) 124 Cal.App.3d 666 (M Restaurants), the Union claims that the constitutionality of the Moscone Act has already been established. To the contrary, Sears II is not binding precedent on the issue, and M Restaurants did not involve private property and is therefore not persuasive. As did the trial court in this case, we agree with the opinion of the United States Court of Appeals for the District of Columbia in Waremart Foods v. N.L.R.B. (D.C. Cir. 2004) 354 F.3d 870 (Waremart II). In that case, the federal court concluded that the Moscone Act violates the First and Fourteenth Amendments. The Sears II plurality decision did not consider the First Amendment issue. The decision stated: “[T]he Moscone Act, interpreted in light of prior decisions of this court, declares such peaceful picketing fon the private property sidewalks surrounding the store] to be legal and thus not subject to injunction. Rejecting Sears’ contention that it enjoys a federally protected right to enjoin peaceful picketing on property it has opened to public use, we conclude that the trial court lacks jurisdiction to enjoin the picketing at issue here.” (Sears II, supra, 25 Cal.3d at p. 321.) Thus, the decision found that the Moscone Act applies to a case such as ours in which union agents are peacefully picketing on private property and that there is no federal right to enjoin such peaceful picketing. However, the Sears II decision did not consider the First and Fourteenth Amendment implications of its decision, 23 whether the statute’s provisions declaring labor picketing on private property to be legal constituted content-based discrimination. Those are the implications of Sears II that we consider today. Since Sears II did not consider the constitutional issue, it does not stand as authority, binding or persuasive, on that issue. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127 [cases not authority for propositions not considered] .) Also clear from the Sears II decision is that the Moscone Act requires the courts to treat speech that can be characterized as “union activity” differently from speech that cannot be so characterized. The court stated: “Although the reach of the Moscone Act may in some respects be unclear, its language leaves no doubt but that the Legislature intended to insulate from the court’s injunctive power all union activity which, under prior California decisions, has been declared to be ‘lawful activity.’” (Sears II, supra, 25 Cal.3d at p. 323, original italics.) But these conclusions do not establish the constitutionality of the Moscone Act. Furthermore, the Sears II opinion was signed by just three justices of the court, a plurality, and therefore did not reflect the views of a majority of the court. “The case thus lacks authority as precedent [citations], and the doctrine of stare decisis does not require us to defer to it [citation]}.” (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918.) 24 Neither Sears II nor any other decision of the California Supreme Court has dealt with the issue we consider here. One commentator noted that in Fashion Valley, the Supreme Court’s most recent case analyzing Pruneyard~-type rights, the court did not discuss Sears II or the Moscone Act: “[A] perplexing aspect of the Fashion Valley decision is the omission from the majority’s detailed historical account of any reference to the earlier decision in Sears II, in which a plurality of the Court had held that the Moscone Act authorized a union to picket on the privately owned sidewalk surrounding a stand-alone department store. This omission seems to be an implied recognition that Sears II and the Moscone Act are unconstitutional as content discrimination under the First Amendment, as the D.C. Circuit held in Waremart [II] by relying on the United States Supreme Court’s decisions in Police Department of Chicago v. Mosley and Carey v. Brown.” (Emanuel, Union Trespassers Roam the Corridors of California Hospitals: Is a Return to the Rule of Law Possible? (2009) 30 Whittier L.Rev. 723, 764, fns. omitted.) The Union’s reliance on M Restaurants as a precedent that the Moscone Act is consistent with the First and Fourteenth Amendments is also misplaced for two reasons. First, M Restaurants did not consider picketing on private property, and, second, any pronouncements in M Restaurants about the constitutionality of denying injunctive relief based on the Moscone Act are dicta because injunctive relief was granted. 25 In M Restaurants, the employer sought an injunction against union picketers who were picketing at the entrances to a restaurant, blocked the doorways, harassed employees and potential customers, and lied to potential customers about the sanitary conditions in the restaurant. (M. Restaurants, supra, 124 Cal.App.4th at pp. 671-672.) While the opinion does not explicitly state whether the property on which the union picketed was public or private, it implies that the property was public by quoting from a case upholding the constitutionality of statutes limiting injunctive relief available when labor protesters picket on a public street. (Id. at pp. 675-676, quoting Senn v. Tile Layers Union (1937) 301 U.S. 468 [81 L.Ed. 12291.) The trial court granted injunctive relief to the restaurant. (M Restaurants, supra, at pp. 671-672.) On appeal, the M Restaurants court considered whether injunctive relief could be sustained under the newly-enacted Moscone Act. On the subject of equal protection, the court stated that “the statute bears a rational relationship to its purpose” (M Restaurants, supra, 124 Cal.App.3d at p. 677), but the court did not discuss whether the statute treats speech related to labor disputes differently from speech relating to other issues. After finding no constitutional problems with the Moscone Act, the court nevertheless concluded that the picketers’ conduct was unlawful and the Moscone Act did not prevent the trial court from exercising its equity jurisdiction to enjoin the unlawful conduct. (Id. at pp. 685-686.) Therefore, the court’s discussion of the constitutionality of 26 the Moscone Act was unnecessary to the decision. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [decisions authority only for points actually involved and decided] .) Accordingly, M Restaurants is unpersuasive. The District of Columbia Circuit of the United States Court of Appeals determined that the Moscone Act, as interpreted by the California Supreme Court in Sears II, violates the First Amendment because it discriminates based on the content of the speech. (Waremart II, supra, 354 F.3d at p. 875.) The D.C. Circuit relied on Mosley and Carey in making this determination. To avoid content discrimination and render the statute constitutionally valid, the D.C. Circuit concluded that “under California law labor organizing activities may be conducted on private property only to the extent that California permits other expressive activity to be conducted on private property.” (Waremart II, supra, at p. 875.) Although decisions of the federal circuit courts are not binding on us, the reasoning and logic of Waremart II are persuasive. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58 [decisions of lower federal courts not binding but may be persuasive] .) Therefore, as did Waremart II, we conclude that the Moscone Act violates the First and Fourteenth Amendments as applied to the circumstances of this case because it favors speech related to a labor dispute over speech related to other issues. To render it constitutional, the Moscone Act must be read to allow speech, in a private forum, related to a labor dispute only to 27 the extent that speech related to other issues is allowed. Because the Union’s agents were trespassing in this case, the Moscone Act cannot be construed to prohibit the courts from exercising their equity jurisdiction as they would in a case not involving a labor dispute. B. Labor Code section 1138.1 Labor Code section 1138.1 suffers from the same constitutional defect as the Moscone Act -- it favors speech relating to labor disputes over speech relating to other matters. It adds requirements for obtaining an injunction against labor protesters that do not exist when the protest, or other form of speech, is not labor related. “An injunction is an appropriate remedy for a continuing trespass. [Citation.]” (Allred, supra, 14 Cal.App.4th at p. 1390, fn. omitted.) “To obtain a preliminary injunction, the plaintiff must establish the defendants should be restrained from the challenged activity pending trial. {Citations.] The plaintiff must show (1) a reasonable probability it will prevail on the merits and (2) that the harm to the plaintiff resulting from a refusal to grant the preliminary injunction outweighs the harm to the defendant from imposing the injunction. [Citation.]” (Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1625-1626.) “[I]n order to obtain injunctive relief the plaintiff must ordinarily show that the defendant’s wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages. [Citation.] Even in an action for trespass to real property, in which damage to 28 the property is not an element of the cause of action, ‘the extraordinary remedy of injunction’ cannot be invoked without showing the likelihood of irreparable harm. [Citation.]” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352, italics omitted.) While some of the requirements of Labor Code section 1138.1 for obtaining injunctive relief in-a labor dispute are the same as the requirements when there is no labor dispute involved, other requirements of Labor Code section 1138.1 are unique to labor disputes. For example, to obtain an injunction against trespass in a labor dispute, the property owner or possessor must show that (1) unlawful acts have been threatened and will be committed (Lab. Code, § 1138.1, subd. (a) (1)), (2) substantial and irreparable injury to the property will follow (Lab. Code, § 1138.1, subd. (a) (2)), and (3) public officers will not or cannot intercede (Lab. Code, § 1138.1, subd. (a) (5)). On the other hand, when no labor dispute is involved, (1) the trespass itself, without a further unlawful act, justifies an injunction (Allred, supra, 14 Cal.App.4th at p. 1390 [injunction available against trespass]; but see Waremart I, supra, 87 Cal.App.4th at p. 158 [peaceful picketing not unlawful act under statute]); (2) any irreparable harm, not necessarily to the property, supports injunctive relief (Uptown Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52 [injury to reputation and business interest suffices]); and (3) the inability or unwillingness of public officers to provide 29 adequate protection is not an element of trespass or a requirement of injunctive relief. Therefore, when a property owner seeks injunctive relief against a trespass by labor protesters, that owner cannot protect its ownership interest (or a tenant, its possessory interest) to prevent a trespass without overcoming difficult obstacles not applicable to injunctive relief against trespassers not engaged in a labor dispute. Those additional obstacles include showing an unlawful act other than the trespass, irreparable harm to the property itself, and inability or unwillingness of public officers to provide protection. Based on the content of the speech of the protester, an injunction against trespass in a labor dispute is much more difficult to obtain than an injunction against trespass under any other circumstances. As we explained with respect to the Moscone Act, the strict scrutiny test applies to differential treatment of speech based on its content. (Fashion Valley, supra, 42 Cal.4th at p. 865; Consolidated Edison v. Public Serv. Comm'n, supra, 447 U.S. at p. 541.) As in the case of the Moscone Act, there is no compelling state interest justifying this differential treatment. (See Carey, supra, 447 U.S. at pp. 464-467.) Therefore, as applied to the circumstances of this case, Labor Code section 1138.1 violates the First and Fourteenth Amendments of the United States Constitution. We recognize that we reached a contrary result in Waremart I, supra, 87 Cal.App.4th 145. In that case, we stated that 30 Labor Code section 1138.1 passes constitutional muster under the rational relationship test. But we applied the rational relationship test because the plaintiff made no argument and presented no authority to apply the strict scrutiny test. (Waremart I, supra, at p. 158.) We also stated that Labor Code section 1138.1 does not limit the content of speech but is, instead, merely “a rule of procedure . . . and does not address speech{.]” (Waremart I, supra, 87 Cal.App.4th at p. 158.) This observation, however, did not consider the effect of the rule of procedure. Just like a poll tax designed to prevent certain groups from voting (see Harper v. Virginia State Bd. of Elections (1966) 383 U.S. 663 [16 L.Ed.2d 169] [state’s poll tax violates equal protection clause]), Labor Code section 1138.1 is not just a procedural prerequisite -- it is an impediment designed to prevent an owner or possessor of real property from obtaining an injunction in a labor dispute, even though injunctive relief would otherwise be available. Labor Code section 1138.1 is more than just a rule of procedure. In effect, it differentiates speech based on its content and imposes prerequisites that make it virtually impossible for a property owner to obtain injunctive relief. The statute thereby forces the private property owner to provide a forum for speech with which the owner disagrees and it bases that compulsion on the content of the speech. (See Hurley, supra, 515 U.S. at pp. 575-576; Pacific Gas & Electric Co. v. Public Utilities Com., supra, 475 U.S. at p. 16.) 31 The Union cites several cases in an attempt to establish that Labor Code section 1138.1 does not violate the First and Fourteenth Amendments because it restricts judicial remedies limiting speech instead of limiting speech itself. This is a distinction without a difference. And the cases cited by the Union do not support its argument. For example, the most recent case cited by the Union, Ysursa v. Pocatello Educ. Ass’n (2009) __ U.S. _— [172 L.Ed.2d 770] (Ysursa), is inapposite. In that case, a state law prohibited use of union dues for political speech if the dues were deducted from a state employee’s wages. The unions sued, asserting that the ban on payroll deductions for political activities was a restriction on speech based on its content, violating the First and Fourteenth Amendments. The United States Supreme Court disagreed. It held that, although content- based restrictions “are ‘presumptively invalid’ and subject to strict scrutiny” (Ysursa, supra, at p. __ [172 L.Ed.2d at p. 7771), this was not a content-based restriction because the state was not obligated to provide payroll deductions at all, and the law did not abridge the union’s freedom of speech ~~ “they are free to engage in such speech as they see fit.” (Id. at p.[172 L.Ed.2d at pp. 777-778].) Here, on the other hand, the government is effectively forcing Ralphs to provide a forum for speech with which it disagrees by withholding the only real peaceful remedy for excluding the Union from using Ralphs’s private property for the Union’s speech. Unlike the situation in Ysursa, Labor Code section 1138.1 abridges Ralphs’s free 32 speech rights by forcing it to host or accommodate speech with which it disagrees. Under the circumstances of this case, Labor Code section 1138.1 violates the First and Fourteenth Amendments of the United States Constitution. The Union asserts that, if we find that Labor Code section 1138.1 violates the United States Constitution by favoring speech related to labor, we should apply the statute to all speech-related cases, regardless of the content. We conclude that the statute may not be extended to apply to all cases because the Legislature did not intend such a drastic invasion of property rights. “When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible. [Citations.]” (In re Marriage Cases (2008) 43 Cal.4th 757, 856.) In the case cited, the California Supreme Court opted to extend marriage to 33 same-sex couples rather than withholding marriage from everyone. (Ibid.) Here, there is nothing to indicate that the Legislature desired to override dozens of cases involving whether a forum is public or private and, in one fell swoop, force property owners and possessors to allow all forms of peaceful speech in a private forum by withholding the remedy of injunction. The Union simplistically suggests that doing so would be “consistent with the goals of {Labor Code section 1138.1}].” While that may be true if one considers only the stated goal of promoting speech relating to labor disputes, it does not mean that the Legislature also had an unstated goal of promoting all forms of speech in a private forum. It is apparent from the very limited nature of the statute, applying only to labor disputes, that the Legislature did not intend to drastically change the law concerning speech in a private forum. Therefore, the proper remedy is simply to invalidate the statute. III Injunctive Relief The Union contends that, even if we conclude that the Moscone Act and Labor Code section 1138.1 cannot be applied to this case, we should still affirm the trial court’s judgment because the court made findings that would result in denial of the preliminary injunction even without applying the Moscone Act and Labor Code section 1138.1. The Union asserts that (1) there was no unlawful act, (2) there was no irreparable harm; and (3) Ralphs failed to carry its burden of showing that 34 its rules on expressive activities were reasonable time, place, and manner restrictions under Fashion Valley. While the trial court made these findings, they do not support the Union’s argument because (1) there is no requirement that an unlawful act beyond the trespass be committed, (2) a continuing trespass under these circumstances constitutes irreparable harm as a matter of law for which damages are not adequate, and (3) time, place, and manner restrictions under Fashion Valley do not apply to a private forum. A continuing trespass is, for purposes of injunctive relief, an unlawful act. Apart from the additional requirement of Labor Code section 1138.1, which we hold cannot be applied here, a party seeking an injunction need not establish an unlawful act beyond the trespass. (See Allred, supra, 14 Cal.App.4th at p. 1390 [injunction appropriate remedy for continuing trespass].) And the continuing trespass itself also causes irreparable harm. “*‘[{T]he extraordinary remedy of injunction’ cannot be invoked without showing the likelihood of irreparable harm. [Citations.]” (Intel Corp. v. Hamidi, supra, 30 Cal.4th at p. 1352.) “Injunction is a proper remedy against threatened repeated acts of trespass [citations], particularly where the probable injury resulting therefrom will be ‘beyond any method of pecuniary estimation,’ and for this reason irreparable. [Citation.]” (Uptown Enterprises v. Strand, supra, 195 Cal.App.2d at p. 52.) When a trespasser engages in activities to discourage the public from patronizing a business, the effect 35 of the activity cannot be quantified because there is no way of knowing who would have patronized the business but for the trespasser’s activities. Therefore, the unquantifiable loss of business caused by the Union’s activities on Ralphs’s property constitutes irreparable harm here, as a matter of law. The trial court’s contrary ruling may be attributed to Labor Code section 1138.1’s requirement of “substantial and irreparable injury to complainant’s property” (Lab. Code, § 1138.1, subd. (a) (2)), which is a different standard from the standard for obtaining an injunction generally. The standard for obtaining an injunction génerally does not require a showing that the likely injury will be to the property itself. Therefore, the trial court’s finding, applying Labor Code section 1138.1, is not binding, and the showing was sufficient to establish a likelihood of irreparable harm. Finally, as noted above, the reasonableness of time, place, and manner restrictions is irrelevant unless the property is a public forum under Pruneyard and its progeny or other state or federal constitutional precedent. The area at issue in this litigation is not a public forum, so the Union’s argument fails. Because Ralphs made an unrebutted showing of a continuing trespass on the part of the Union, Ralphs established a reasonable probability it will prevail on the merits and the harm resulting from a refusal to grant the preliminary injunction outweighs the harm to the Union. (See Bank of Stockton v. Church of Soldiers, supra, 44 Cal.App.4th at p. 1626 36 [requirements for preliminary injunction against trespass] .) Ralphs is therefore entitled to a preliminary injunction. DISPOSITION The order denying a preliminary injunction is reversed and remanded with instructions to grant the preliminary injunction. Raiphs is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).) NICHOLSON , Acting P. J. We concur: RAYE , J. ROBIE , J. 37 PROOF OF SERVICE Re: Case Number: S185544 Case Title: Ralphs Grocery Company v. United Food Commercial Workers Union Local 8 - I hereby declare that I am a citizen of the United States, I am over 18 years of age, and I am nota party in the above-entitled action. [am employed in the County of San Francisco and my business address is 595 MarketStreet, Suite 1400, San Francisco, California 94105. On August 27, 2010, I served the attached document described as a PETITION FOR REVIEW ontheparties in the above-namedcase. I did this by enclosing true copies of the documentin sealed envelopes with postage fully prepaid thereon. I then placed the envelopes in a U.S. Postal Service mailbox in San Francisco, California addressed as follows: Miriam A. Vogel Timothy F. Ryan Tritia M. Murata Morrison & Foerster, LLP 555 WestFifth Street, Suite 3500 Los Angeles, CA 90013-1024 Attorneysfor Plaintiffand Appellant Clerk of the Court California Court of Appeal Third Appellate District 621 Capitol Mall, 10th Floor Sacramento, CA 95814-4719 Attorney General of California P.O. Box 944255 Sacramento, CA 94244-2550 William J. Emanuel Natalie Rainforth Littler Mendelson, PC 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Attorneysfor Amici Curiae Clerk of the Court Attn: The Hon. Loren E. McMaster Sacramento Superior Court 800 9" Street Sacramento, CA 95814-2686 {, Miriam I. Tom, declare under penalty of perjury that the foregoing is true and correct. Executed on August 27, 2010, at San Francisco, California. Miriam I. Tom t o