RALPHS GROCERY v. UNITED FOOD & COMMERCIAL WORKERS UNION

Respondent’s Reply Brief on the Merits

Cal.March 22, 2011

Case No. 8185544 IN THE SUPREME COURT OF CALIFORNIA RALPHS GROCERY COMPANY, Plaintiffand Appellant v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL8, Defendant and Respondent. SUPREME LAAN © a4 i es After a Decision of the Court of Appeal FIa Third Appellate District, Case No. C060413 MAR 99 ons: (Sacramento Superior Court Case No. 34-2008- i 00008682-CU-OR-GDS, Frederick K Onitice vcr, The Honorable Loren McMaster, Judge) Deputy REPLY BRIEF ON THE MERITS DAVIS, COWELL & BOWE, LLP Richard G. McCracken (BAR No.062058) 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) Case No. 8185544 IN THE SUPREME COURT OF CALIFORNIA RALPHS GROCERY COMPANY, Plaintiffand Appellant v. UNITED FOOD AND COMMERCIAL WORKERS UNION 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) REPLY BRIEF ON THE MERITS DAVIS, COWELL & BOWE, LLP Richard G. McCracken (BAR NO. 062058) 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 MarketStreet, 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 INTRODUCTION oo.ceeeesneeceseeeneeeentseseeseresssesesnsseessasessstsseenesenees l ARGUMENT, ooo. ceccceccenneceeneeeeeeeeeeeeseessaeeessueeeesuassesuasaessseecesseeasensaeeees 6 I. Neither Labor Code § 1138.1 Nor the Moscone Act Violates the First and Fourteenth Amendments. .......... 6 A. Labor Code § 1138.1 is a procedural statute that does not regulate speech ............eeeeeeeseeeseneeeees 6 B. Neither Labor Code § 1138.1 nor the Moscone Act abridges speech . secessneeseetssussuevesuecaseess 11 C. The First Amendmentdoesnotprotect Ralphs’s property rights ..........:cescccesseeeeceeesereeeeseeeees 17 D. Ralphs refuses to confrontits constitutional theory’s implications. .........ceceesseecccesteeeeesseeereeeaeeees 21 E, Ralphs’s exegesis on non-employee union organizers’ NLRA accessrights1s irrelevant.......... 24 I. The Walkways And Parking Lot Fronting The Store Are Pruneyard FOrums. 0......cecccceesscceesseceeececeeneeecenseceenaceesaeeereenseteeesnaees 26 A. Foods Co is neither a “stand-alone store” nor a “modestretail establishment.” .............0.0..ccseeeecceeeceseeeeeerers 27 B. The Unionseeksto protest against Ralphs.......0......ee 30 MI. Ralphs’s Time, Place and MannerRestrictions Are Unreasonable and Were Discriminatorily Enforced................... 32 CONCLUSION ou... eeececsesceesscesescnreeseeeesseeesaeeseauscsesceaeecesaesesassesaeseaees 36 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697 ooecceccccseeneeeeseeeeeeesesteeseeseneeseeeeaeeeesseeeseaeeeeuseeteaes 8 AT&TBroadband, LLC v. IBEW (7th Cir. 2003) 317 F.3d 758 w.cceccccscseseeecesseeeeeseeeseeteenetenstseeteseetesaenens 8 Beth Israel Hosp. v. NLRB (1978) 437 U.S. 483 eccecccccesecseecseseesseeeeeeeeneesseeeseeseeceecsateeeeeaeenaeenes 23 Camping Const. Co. v. Dist. Council ofIron Workers (9th Cir. 1990) 915 F.2d 1333 woe. eeeeeecssseeeseseeeceneeeeceeeneeseecseseesseenneens 8 Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064.0... ceeeeesesseeeeeeeseeeneeeneeeeneeens 7 Carey v. Brown (1980) 447 U.S. 455 cieeiecccccceseceeceeceenetneceeeeteeseeeeeeseaeeaeenteenteeseees 2,14 District 29, United Mine Workers v. New Beckley Mining Corp. (4th Cir. 1990) 895 F.2d 942 oo ececcceeceseeteeeeeeeeetseeseeseneesseeessersaneres 8 Drivers, Chauffeurs Local 71 v. Akers MotorLines, Inc. (4th Cir. 1978) 582 F.2d 1336 oe eeececeeseseeesreseesereesaceeaeeeeeenaeesneeneeeeas 7 Glickman v. Wileman Bros. & Elliott, Inc. | (1997) 521 U.S. 457 cccccccccseececcssseeeecsseeeseeaeeeaececenaeesieeeereeeeeeeeeneeees 12 Hill vy. Colorado (2000) 530 U.S. 703 .oeccccsscessesssessssecsecseeseaesececaeeeseeaneeeneeeaeseatenseeeaeereas 14 Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46 woiccccccccccsceseesssessscssesesecececsaecaecueeseeesenseteeeaeesteeeees 22 Kuba v. Marine World Joint Powers Auth. (E.D. Cal. 2006) 2006 WL 1376837 ......ccecccescesscenseenceetsceeterseeeaeeesateees 35 il Lechmere, Inc. v. NLRB (1992) 502 U.S. 527 eecececceccseeeseeseseeseseneesecsessessenesseeneeseneeneeseneeees 23, 24 Linn y. United Plant Guard Workers (1966) 383 U.S. 53 w.ececceceeeececeeeeseeeesceeteeesseeseesaseaeessenecseessaeseeaseaseaees 22 Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999) 528 US, 32 voeeeecceeeeseeeeeeeeseeseseeseeeessscessenesseeesseeeesesssereeseas 12, 18 Mott’s LLP v. United Food & Commercial Workers (N.D. Tex. 2010) No. 3:10-cv-01315, 188 L.R.R.M. 3352 wees 10 National Endowmentfor the Arts v. Finley (1998) 524 U.S. 569 oececeecssseeseneereceeeensessesecsecnesesesseesseneseereneeneens 11 Natl. Advertising Co. v. City ofOrange (9th Cir. 1988) 861 F.2d 246 ceceereeeseeteeeseecneeseeeeesenees 13 New York Times Co. v. Sullivan (1964) 376 U.S. 254 ceceeee essesceseesessesecseseessaesseeneseecnseneeneesseneeneees 22 NLRB v. Babcock & Wilcox Co. 351 US. 105 coccccccccccccccceccccccccctecssseseseseeccecesacsusecscscenescersseeuaseseceseseneees 23 NLRBv. Calkins (9th Cir. 1999) 187 F.3d 1080...cccceececsseeeeeeenesteeneeteeteesees 28, 29 Nordyke v. King (9th Cir. 2003) 319 F.3d 1185ccceeeeeesteeeeeeneeeseeneesssesesseeseeenes 7 Norton v. Ashcroft (2d Cir. 2002) 298 F.3d 547 ooo eecccceececcsssteeesteeteecneesseeeesecseesseenseens 8 Police Department ofChicago v. Mosley (1972) 408 U.S. 92 voecceeeecescceesseeeseseeeeeraeeeeseessessesseaseesreeseseesses 2, 14, 15 Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 cececceseeseseseerseneeeseeseesecreseeceeeseassnesseesseenaseas 2, 12, 20 R.ALV. v. St. Paul (1992) 505 U.S. 377 coeceeceeeeeeeesssescesensesessesssssessscseessaseessesseeaseesssseseenees 10 i Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 ooeccecccecesceeseeesetseceaeeneeeececeeeeateeseeeearenateeateseteeseteats 23 Roulette v. City ofSeattle (Oth Cir. 1996) 97 F.3d 300.0... eeeescesceseeeeesseeseeceneteneeeaeeseneesneeseees 6,7 Rumsfeld v. Forum for Academic & Inst. Rights (2006) 547 U.S. 47 voeccccccccccccsscesecseceeceetensceseeseececeseeeeecseesneeesseesnerenees 12 San Antonio Cmty. Hosp. v. S. Cal. Dist. Council ofCarpenters (9th Cir. 1997) 125 F.3d 1230... cecccneesnsceseeseecsneceeetserecseceneeeeeeeaes 10 Senn v. Tile Layers Protective Union, Local 5 (1937) 301 U.S. 468 ooo eecccccseceseeseceeeceeeseaecenecseeeeaeeeneceatessaeseeeeneeeaees 22 Snyder v. Phelps | (2011) US. __, IST S.Ct. 1207 ooeeeeeeeereeneeeeeeeeenees 21, 22 Sund v. City of Wichita Falls (N.D. Tex. 2000) 121 F.Supp.2d 530 oo... icecceeseeeeeecesecseeeeeeeeeeeeeenees 13 Thornhill v. Alabama (1940) 310 U.S. 88 ooo ccceceseecenseececneeceneceeesaeeedeevseeeeeseeseeeetetears 23 U.S. West, Inc. v. FCC (10th Cir. 1999) 182 F.3d 1224occcccccccsseeseessseeessnesessaeessesessesens 12 United Bhd. ofCarpenters Local 586 v. NLRB (9th Cir. 2008) 540 F.3d 957 ooo.iceecceesececeesencecseeeseceeceereessasessinessensesaes 35 Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870 wo..cccccecceseecceseesssneeeeessneeeeesseeeees 13, 16 Wooley v. Maynard (1977) 430 ULS. 705 wocccceeseeseteteteeerseeeeeeneneeeceeenenenanssscesseasssseneneeseeey 11 Ysursa v. Pocatello Educ. Assn. (2009) 555 U.S.129 S.Ct. 1093 ooo ecceeeeeeeeceeeeeeseeeneeeenteeeens 12 iv STATE CASES Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106 oo... eeececeesecneesneceseeseeeeseaeeeaeeteaeeaes 29, 30 Arcadia Unified School Dist. v. State Dept. ofEduc. (1992) 2 Cal.4th 251 icc cecccsccescesceeeseeseeeseeseesseeeeeeeseeeeesseeeeeneeseeenes 7 ARP Pharmacy Svcs. v. Gallagher Bassett Svcs. (2006) 138 Cal.App.4th 13070...eeceeseceseceesseeeceeeeeceeeeesaeesenaeeeeaess 13 Bailey v. City ofNational City (1991) 226 Cal.App.3d 1319... cecescsesssseesesesesseeseceseeseeseeeseeesesseeeees 8 Best Friends Animal Society v. Macerich Westside Pavilion Property LLC (2011) Cal.App.4th -_, 2011 WL 711584 wo. 15, 16, 31, 34 Diamond v. Bland (1970) 3 Cal.3d 653 ...cccceecccscsssscensesseseseceeecrecseeceaeceeeeseaeecaeeseeeeeseenseeees 31 Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850 00...cc cccceeeseeeeseceeeceeeeeeeseeceseeeseeaeessaneeseaeers passim Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596 ..........eeaeeeaeeeaeecaeenaeeueseasecseeeaeeeseaeseseseaeeneeesatenes 22 In re Lane (1969) 71 Cal.2d 872 ooiceeccccccssecsecescceeeeneecseeeseeeeeesesseeesateeas 16, 30, 31 Los Angeles Alliance For Survival v. City ofLos* Angeles (2000) 22 Cal.4th 352... cecccscccccssecscesecsscsccesecssesdecseceeseceecsesesseseseens 11 MRestaurants. v. San Francisco Local Joint Exec. Bd. (1981) 124 CalApp.3d 666 00... cccccccssesseceseeesscenecetecesssersareseesseesseeeses 33 People v. Garcia (1999) 21 Cal.4th Looeccccsssecseccseeceseeeseasecseseaeeseeaeseseesssesneeseeeseas 18 People v. Globe Grain & Mill Co. (1930) 211 Cal. 121ceeeencceseeeeceeeeseesereceaeeeaeeeesneseneeeaeeneeseeteass 18 Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2010) 186 Cal.App.4th 1078, 113 Cal.Rptr.3d 88 we passim Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2011) Cal.App.4th __, 120 Cal.Rptr.3d 878 oo.eeeeeeeees passim Robins v. Pruneyard Shopping Ctr. (1979) 23 Cal.3d 899 occceccseesseeeeseeseseseceeeeeseeseeeeenecteeesneseaneneaes 28 Rubio v. Super. Ct. (1979) 24 Cal.3d 93 occccecccccscccsseeseessecsseesteceeeeseessneseeecersessesseersaeeneeeeeas 18 Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 oo. eceecccceccccceeceeseeeeeceeenaeceaeeeaecnnesineetensnees 16, 31 Sears, Roebuck & Co. v. San Diego County Dist. Council (1979) 25 Cal.3d 317 ..eeeccesscceceeecesreserseeceesseeseseeenecesecesseeeeeesatenes 19, 25 Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469 oo. ccecccceeseeceesneeeeeseeeeeneeeeeeeeeess passim Trader Joe’s Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425 ooo eeeeecesseceneeeesseseseeeesaeessnereneeeeens 19, 29 Van v. Target Corp. (2007) 155 CalApp.4th 1375 woo... ececceeeeceeseseeeeeceneeceneeeeseeseeneenes 29, 30 Vermont Soc. ofAssn. Executives v. Milne (2001) 172 Vt. 375 ve eeeeccesceseenetsseeseeseeeserseseesnecseescessnesteresntesneeenes 13 Waremart Foods v. United Food & Commercial Workers Union, Local 588 (2001) 87 Cal.App.4th 145 ooceccecsecsecssceeesneceeseesenecsecaecnserseesseeeers 8 Werner v. So. Cal. Assoc. Newspapers (1950) 35 Cal.2d 121 eeeee eseeeeseeseceecseeseeseeenereseeesersneseeeessensaetaes 20 vi FEDERAL STATUTES 29 U.S.C. § LOT oc ecccccccccssessncceeseseceeeeaeeceaeeceanecssecenreessaseeaeeacsasseaaeeesaeessaeeregs 7 42 U.S.C. § 1997 iececcccescccsecsceeseceneceeceseceaeeeseceseeseeensesatesesesseeseneerseenneeaas 9 CALIFORNIA STATUTES Civ. Code § 1942.5 ieccccccecscsecsceeeesseeresseneeecssaeeeesneeensaeeseesseaeesssaeeerenaeeeees 9 Code Civ. Proc. § 527.3(€) ...ccccccccsccsessseceesneeceenereceeaeeetsaeeeeesaeesssseeeceesaeeeeey 32 Code Civ. Proc. § 527.3(D)(4) oo. ceeeececeeeseeceeereeeeeseeeeneeereteeaserenseaseeseieeeenys 6 Code Civ. Proc. § 527.6 ...ceeccccccssceceeeesnneecesseseeeeseneneeesseseeenaeeteseesenaaeereenees 9 Code Civ. Proc. § 527.8 cicccceccccsscessseceseeeeesesaeesesseeessneerecssneessacaeesensaeeeensas 9 Code Civ. Proc. § 1159 €f SOG .cccccscsessssesssssssesesesestsesessecseeceeesseeseeeetseeeenees 9 Family Code § 240 et S€Q. wo..ceeeeceesccceesneeeeseeeeeeesecenseeesesesecsesasensesseeeeseeeeees 9 Lab. Code § 1138.1eeeeceeseeceseeeeesenesessasesssenenecsseressessenes passim Lab. Code § 1138.4... ceccceceesseeeeeecssceereceseseeeeeaeeeseeesaeeeesaaessteeeesseesesneeseees 6 CONSTITUTIONS Cal. Const., Article I, § 2a) ...ccccccecsseccccsscececeseeeesseeetesaeeeeeseaeeteseaeeseesaeeeens 11 U.S. Const., amend. Do...eeecescecseeseesesessesseeessesnesesssnnesesneeeeees passim ULS. Const., amend. V.u......ccccecsssccceececeseeseesesneseeeeseeeeteeeeeenaeea 1, 19, 20, 21 CALIFORNIA RULES OF COURT Rule 8.204(c)(1) ccccssesccsecsseecesserssssessssesessuscssevessecesssecessuecesecsssesesavessusseseenses 1 vil INTRODUCTION Ralphsasserts that the First Amendmentbars California’s Legislature from enacting purely speech-protective statutes on anything other than a universal basis. In its challenge to Labor Code § 1138.1, Ralphsgoes even further. It argues that California’s Legislature may not enact laws regulating court procedurein a particular class ofcasesif that procedure might impact a private party’s ability to restrict speech in some instance. No First Amendmentdoctrine supports these propositions. Ralphsasks this Court to strike down two importantstatutes as facially unconstitutional, using reasoning that would invalidate many other state and federal laws, but refuses to explain whose First Amendmentrights are violated or how. With good reason, Ralphs disavows the Third Appellate District’s conclusion that Labor Code § 1138.1 and the Moscone Actinfringe on Ralphs ’s First Amendmentrights by compelling the company to accommodate speech. Nor does Ralphsassert that the statutes somehow burdenother, hypothetical speakers’ First Amendmentrights. That position would also be untenable, since neither statute abridges speech. Instead, Ralphs claims that Labor Code § 1138.1 and the Moscone Act violate the First Amendmentbecause they interfere with its private property rights. At times, Ralphs suggeststhat the statutes constitute a taking under the Fifth Amendment. (Appellant’s Answering Brief 1 (“AAB”),at pp. 1-2, 13-14.) Elsewhere, Ralphs contends that the statutes violate the First Amendmentbecausethey interfere with its common-law property rights-“forcing us to allow labor-related expressive activities on our private property when wehavethe right to excludeall other expressive activities.” (AAB,at 24-25 n. 21.) This is creating new,far-reaching constitutional theories out of whole cloth. Ralphs has not challenged the statutes under the Takings Clause and would be unsuccessfulif it did. (See Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 84; Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 490.) It cannot graft this baseless theory onto First Amendmentclaim. Nor does Ralphs have a First Amendment right to a common-lawtrespass causeofaction. The First Amendmentandits California equivalent apply only to statutes that “abridge speech.” Neither Labor Code § 1138.1 nor the MosconeActrestricts or compels anyone’s speech. Nor doesthe First Amendmentinvalidate a purely procedural statute like Labor Code § 1138.1 merely because the statute might be invokedto limit a private party’s remedy against speech. Ralphs argues that Police Department of Chicago v. Mosley (1972) 408 U.S. 92 and Carey v. Brown (1980) 447 US. 455 support its claim. But those two cases involvedstatutes that prohibited speech based onits content, a fact that was essential to the government’s constitutional violation. Whenconfronted with the manystate and federal lawsthat its constitutional theory would implicate, Ralphs protests that the “sky is not falling” (AAB,at p. 27), yet is unable to explain whyits reasoning would notinvalidate the Norris-LaGuardia Act, key aspects of the National Labor Relations Act (“NLRA”),statutory and judicial protections for journalists, evidentiary privileges, and manyotherstatutes and judicial doctrines. Because Labor Code § 1138.1 and the MosconeAct do not abridge speech in violation of the First Amendment,their classifications are not subject to strict scrutiny. Ralphs’s request that the Court rewrite the statutes to apply only when a defendant has no other means to communicate with the public is therefore irrelevant. (See AAB,at pp. 30-38.) The statutes clearly meet the rational basis standard. This Court also granted review on a second,analytically distinct question-the Union’s right under California’s Liberty of Speech Clause to engagein peaceful picketing on the sidewalk and parkinglot fronting Ralphs’s store. The Court correctly framed this second issue as whetherthe court below erred in concluding that walkways and parking lots fronting retail businesses in larger, Pruneyard-type shopping centers are categorically non-public. ‘In arguing that these spaces are not public forums, Ralphs plays fast and loose with semantics. It claims that it is a “stand-alone” store and “modestretail establishment,” whenin factit is a “large warehouse grocery store” that is physically connected to other retail stores and anchors a shopping center containing courtyards, outdoorseating areas, and an integrated scheme of walkways. (See Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2010) 186 Cal.App.4th 1078, 113 Cal.Rptr.3d 88, 94-95.) Ralphs cites to cases addressing fundamentally different situations-individualretail stores unconnectedto any larger shopping center, medical facilities not open to the public, and speech not presenting a grievance against the targeted business. The walkway and parkinglot fronting Ralphs’s store are the functional equivalent of the public streets and sidewalks that have traditionally been held open for peaceful speech and debate. Moreover, the Union used the walkway to protest Ralphs’s business practices, and “a privately owned shopping center must permit peaceful picketing of businesses in shopping centers, even though such picketing may harm the shopping center’s businessinterests.” (Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850, 864.) Ralphs provides no basis for upendingthis settled precedent. In the closing section of its brief, Ralphs states that it was just trying to hold the Union to reasonable time, place and mannerrestrictions that other organizations followed. This is both disingenuousandbeside the point. Neither the Moscone Act nor Labor Code § 1138.1 prevents a storeowner from promulgating reasonable time, place and manner restrictions. But the trial court found that Ralphs did not proveits restrictions were reasonable or evenhandedly enforced. Ralphsfailed to introduce any evidenceto justify prohibiting all expressive activity on at least 49 days of the year (including, for example, the entire week before Martin Luther King Jr. Day), for barring all expressive activity during intermittent times of the day, or for limiting organizations to two representatives. As the trial court found, none of the other individuals and organizations that used the store’s walkways to communicate with the public followed Ralphs’s unreasonablerestrictions. Yet Ralphs soughtto enforce its rules against the Union alone. Like the decision below andthe Fifth Appellate District’s recent divided opinion,' Ralphs’s brief fails to identify any First Amendment violation that could justify strikingdown Labor Code § 1138.1 or the Moscone Act. Ralphs believes that these laws are unfair and trench onits property interests, but this Court is not the proper audience for such claims. The Legislature-like Congress and many other states-has properly concludedthat limiting the judicial role in labor disputes is a worthygoal. If Ralphsis dissatisfied, it must bring its complaint to the representative branch of government. * Ralphs Grocery Company v. United Food & Commercial Workers Union Local 8 (2011) _ Cal.App.4th _, 120 Cal.Rptr.3d 878 [“Fresno Ralphs’’]. Respondents havefiled a petition for review ofthat case, in Supreme Court case No. 8191251. ARGUMENT I. Neither Labor Code § 1138.1 Nor the Moscone Act Violates the First and Fourteenth Amendments. A. Labor Code § 1138.1 is a proceduralstatute that does not regulate speech. Ralphs’s challenge to Labor Code § 1138.1 is particularly ill- conceived. That statute does not regulate speech or make any content- baseddistinction between types of speech. It regulates court equity procedurein any case “arising or growing out of a labor dispute”-an extremely large category of cases. (Lab. Code § 1138.1(a).) Ralphsbringsa facial challenge to Labor Code § 1138.1. (AAB,at p. 1.) But the Supreme Court has madeclear “that a facial freedom of speech attack mustfail unless, at a minimum,the challengedstatute ‘is directed narrowly andspecifically at expression or conduct commonly associated with expression.’ ” (Roulette v. City ofSeattle (9th Cir. 1996) 97 F.3d 300, 305 [quoting City ofLakewood v. Plain Dealer Pub. Co. (1988) 486 U.S. 750, 760].) Thus, “the Supreme Court has entertained facial freedom-of-expression challenges only againststatutes that, “by their terms,’ sought to regulate ‘spoken words,’ or patently ‘expressive or communicative conduct’ such as picketing or handbilling.” (Roulette, * The term “labor dispute” is defined broadly. (Lab. Code § 1138.4; Code Civ. Proc. § 527.3(b)(4).) supra, 97 F.3d at p. 303 [citing Broadrick v. Oklahoma(1973) 413 U.S. 601, 612-13]; see also Arcadia Unified School Dist. v. State Dept. ofEduc. (1992) 2 Cal.4th 251, 267.) For example, a statute prohibiting sitting on sidewalksis not subject to a facial First Amendment challenge merely becausesitting is sometimes expressive. (Roulette, supra, 97 F.3d at p. 303.) Although gun possession can be expressive and some gunssold at gun showsare decorated with political messages, a facial challenge to a statute regulating gun sales will fail. (Nordyke v. King (9th Cir. 2003) 319 F.3d 1185, 1190.) For the same reason,a plaintiff may not bring a facial challenge to California statutes barring attorneys from disobeying court orders. (Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064, 1072 [While acts that would fall within the reach of these statutes might comein the form of speech or other expressive conduct, that is not enough to support a facial challenge.’’].) Labor Code § 1138.1 is not directed “narrowly and specifically”at speech or expressive conduct-t sets forth rules of equity procedure that govern in any case arising from a labor dispute. Labor Code § 1138.1 contains identical languageto that in the Norris-LaGuardia Act, 29 U.S.C. § 107. So like the federal law, it applies in situations that do not involve speech, such as when a union seeks an injunction to stop an employer from encumberingits capital assets (Drivers, Chauffeurs Local 71 v. Akers MotorLines, Inc. (4th Cir. 1978) 582 F.2d 1336, 1341), when a party to a collective bargaining agreement seeks to enjoin a pending arbitration (Camping Const. Co. v. Dist. Council ofIron Workers (9th Cir. 1990) 915 F.2d 1333, 1342-43; AT&TBroadband, LLC v. IBEW (7th Cir. 2003) 317 F.3d 758, 759-760), or when a union seeks an injunction requiring the employer to hire workers by seniority. (District 29, United Mine Workers v. New Beckley Mining Corp. (4th Cir. 1990) 895 F.2d 942, 945-47. See also Waremart Foods v. United Food & Commercial Workers Union, Local 588 (2001) 87 Cal.App.4th 145, 158 [Labor Code § 1138.1 “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[.]”].) Labor Code § 1138.1 is a restriction on court jurisdiction, not a regulation of private conduct. Nordoesthe fact that Labor Code § 1138.1 might have someeffect - on expressive activity in particular cases make out a First Amendment challenge. The courts “have not traditionally subjected every criminal and civil sanction imposed through legal processto ‘least restrictive means’ scrutiny simply because each particular remedy will have someeffect on the First Amendmentactivities of those subject to sanction.” (Arcarav. Cloud Books, Inc. (1986) 478 U.S. 697, 706; Bailey v. City ofNational City (1991) 226 Cal.App.3d 1319, 1332; see also Norton v. Ashcroft (2d Cir. 2002) 298 F.3d 547, 553 [“[T]here is no disparate impact theory ofthe First Amendment.”’].) Permitting Ralphs’s facial challenge to Labor Code § 1138.1 would dramatically expand the scope of First Amendmentreview. Legislatures regularly prescribe court procedures and remedies in particular classes of cases andfor particularlitigants. (See, e.g., Code Civ. Proc. § 527.6 [proceduresfor restraining orders in cases involving harassment]; Code Civ. Proc. § 527.8 [procedures for injunctions in cases involving workplace violence]; Civ. Code § 1942.5, Code Civ. Proc. § 1159 et seq. [procedures for landlord-tenant disputes]; Family Code § 240 et seq. [procedures for restraining orders in divorce, child support, and domestic violence cases]; 42 US.C. § 1997e [procedures for prisoners seeking redress for prison circumstances].) Under Ralphs’s view, such statutes are content discriminatory merely because they might makeit easier or more difficult for a litigant to proceed in a case involving expressive activity. Ralphs contends that Labor Code § 1138.1 substantively regulates speech becauseit “gives the Uniona right to trespass onto private property to speak when no oneelse has a similar nght.” (AAB,at p. 30.) But Labor Code § 1138.1 confers no such night. It requires that the applicant demonstrate that “unlawful acts have been threatened and will be committed unless restrained,” but does not substantively define whatacts are considered “unlawful.” (Lab. Code § 1138.1(a)(1).) Ifa defendant’s entry onto private property is trespass underthe law, then the applicant can meet this requirementandis entitled to an injunction if 1t meets the statute’s other requirements. The Third Appellate District’s unsupported assertion that Labor Code § 1138.1 makes it “virtually impossible for a property ownerto obtain injunctive relief” is baseless. (See, e.g., San Antonio Cmty. Hosp. v. S. Cal. Dist. Council ofCarpenters (9th Cir. 1997) 125 F.3d 1230, 1236-39 [Norris-LaGuardia did not prevent injunction against union displaying bannernear hospital entrance]; Mott’s LLP v. United Food & Commercial Workers (N.D. Tex. August 5, 2010) No. 3:10-cv-01315, 188 L.R.R.M.3352 [Norris-LaGuardia did not prevent injunction against union placing strike-related labels on products in grocery stores].) Ralphs’s theory is also inconsistent with the purpose of content- discrimination analysis. “The rationale of the general prohibition .. . is that content discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’ ” (R.A.V. v. St. Paul (1992) 505 U.S. 377, 387 [internal citation omitted].) A statute regulating court procedure in a large class of cases that includes many wholly unrelated to speech does notthreaten to “drive ideas from the marketplace.” Labor Code § 1138.1-like the Norris-LaGuardia Act-was enactedto limit the judicial role in regulating labor disputes, not to censor particular ideas or viewpoints. (Respondent’s Opening Brief (“ROB”),at pp. 21-33.) 10 B. Neither Labor Code § 1138.1 nor the MosconeAct abridges speech. Ralphs’s constitutional challenge is perverse. It claims that Labor Code § 1138.1 and the MosconeActviolate the First Amendment because they /imit the ability that Ralphs-a private actor-would otherwise haveto restrict speech through court action. No First Amendmentdoctrine supports this theory.” The First Amendment’s free-speech clause states that “Congress shall make no law . . . abridging the freedom of speech.” (U.S. Const., amend.I.) “To abridge is ‘to contract, to diminish, to deprive of.’ T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796).” National Endowmentfor the Arts v. Finley (1998) 524 U.S. 569, 595 [Scalia, J., concurring].) In certain circumstances, government-compelled speech can abridge the right not to speak. (Wooley v. Maynard (1977) 430 U.S. 705, 714.) But in the absence of government-compelled speech or a governmentrestriction * The Fifth Appellate District, sua sponte, analyzed the statutes under California’s Liberty of Speech Clause. (Fresno Ralphs, supra, 120 Cal.Rptr.3d at p. 885; see Fresno Ralphs, Petition for Review, Case No. S$191251, at pp. 13-14.) That issue is not presented here. In any case, analysis under the First Amendmentand under California’s Liberty of Speech Clause is the same. Like the First Amendment, California’s Constitution only bars acts that restrain or abridge speech. (Cal. Const., Art. I, sec. 2(a).) California’s approach to content discrimination mirrors that under the federal Constitution. (Los Angeles Alliance For Survivalv. City ofLos Angeles (2000) 22 Cal.4th 352, 367-78; Fashion Valley, supra, 42 Cal.4th at pp. 865-69.) ll on speech,a statute cannot violate the First Amendment. (Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999) 528 U.S. 32, 40; Ysursa v. Pocatello Educ. Assn. (2009) 555 U.S. __, 129 S.Ct. 1093, 1098: Glickman v. Wileman Bros. & Elliott, Inc. (1997) 521 U.S. 457, 469 [regulatory schemethat “imposesnorestraint on the freedom .. . to communicate any messageto any audience,” that “do[es] not compel any person to engage in any actual or symbolic speech,” and that does not compelthe plaintiff “to endorse or to finance any political or ideological view” does not violate the First Amendment]; U.S. West, Inc. v. FCC (10th Cir. 1999) 182 F.3d 1224, 1232 [“‘As a threshold requirementfor the application of the First Amendment, the governmentaction must abridge or restrict protected speech.”].) Neither statute abridges speech. Neither restricts speech-the Moscone Act and Labor Code § 1138.1 (to the extentit is invoked in a case involving expressive activity) are speech-protective. Nordothe statutes unconstitutionally compel speech. The Third Appellate District decided that the statutes violate Ralphs’s First Amendmentright to exclude speech from its property, citing compelled- speech cases. (Ralphs, supra, 113 Cal.Rptr.3d at pp. 92-93.) But commercial property ownerslike Ralphs have no such right. (Pruneyard, supra, 447 U.S.at p. 87; Rumsfeld v. Forumfor Academic & Inst. Rights (2006) 547 U.S. 47, 65; Snatchko, supra, 187 Cal.App.4th at p. 490 [merely 12 hosting speech on commercial property “is not being compelled to espouse or respondto any particular message”’}.) Ralphs rightly disavowsthe Third Appellate District’s reasoning. (AAB,at pp. 24-25 fn.21; see Fresno Ralphs, supra, 120 Cal.Rptr.3d atp. 889 [Wiseman,P.J., dissenting] [“Despite multiple opportunities during briefing and oral argument, appellant has pointedly (and with good reason) not arguedthat its rights against compelled speech and association are implicated.”’].) But it is unable to explain how thestatutes violate anyone else’s First Amendmentrights. Other than the federal court’s cursory and misguided discussion in Waremart Foods v. NLRB (D.C.Cir. 2004) 354 F.3d 870 (D.C. Waremart), Ralphs cannotcite any case in which a court hasruled statute to be content-discriminatory-orto otherwise violate the First Amendment- where,as here, that statute did not compelorrestrict speech. The random assortment of cases Ralphscites confirm this-they all involved regulations that either burdened or compelled the plaintiff's speech.” * AAB,at p. 21 fn.17; ARP Pharmacy Svcs. v. Gallagher Bassett Svcs. (2006) 138 Cal.App.4th 1307, 1322 [regulatory requirementthat drug claims processors publishstatistical reports “burden[ed] the rights of drug claims processors not to speak on the subject’’]; Sund v. City of Wichita Falls (N.D. Tex. 2000) 121 F.Supp.2d 530, 547 [regulation restricted First Amendmentright to receive information]; Vermont Soc. ofAssn. Executives v. Milne (2001) 172 Vt. 375, 385 [“distinct, independenttax singling out” lobbyists burdenedtheir political speech]; Natl. Advertising Co. v. City of Orange(9th Cir. 1988) 861 F.2d 246, 249 [“Because the exceptionsto the 13 Ralphs, like the court below,relies on Mosley and Carey, supra. (AAB,at pp. 16-18.) But those cases do not hold that a purely speech- protective statute is unconstitutional merely becauseits protection is not extended universally. Mosley and Carey both involvedlawsthat restricted the plaintiff's speech through broad, content-based prohibitions. (ROB,at pp. 45-46; Mosley, supra, 408 U.S.at p. 99; Carey, supra, 447 U.S.at p. 462.) This fact was essential to the outcomeof each case. In Hill v. Colorado, for example, the Court distinguished Carey, noting that in that case it had: explain{ed] that it was the fact that the statute placed a prohibition on discussion ofparticular topics, while others were allowed, that wasconstitutionally repugnant. ... The Colorado statute’s regulation of the location of protests, education, and counselingis easily distinguishable from Carey. It places no restrictions on-and clearly does not prohibit-eithera particular viewpoint or any subject matter that may be discussed by a speaker. (Hill v. Colorado (2000) 530 U.S. 703, 722-23 [emphasis added].) Ralphs cannot dance aroundthis fundamental problem withits theory byselectively quoting Mos/ey. Ralphs contends that Mosley struck downthe challenged ordinance becauseit “ ‘describe[d] permissible [ordinance’s] restriction on noncommercial speech are based on content, the restriction itself is based on content.”’].) 14 picketing in termsofits subject matter.’ ” (AAB,at p. 17 [quoting Mosley, supra, 408 U.S.at p. 95].) But what the Court in fact said wasthis: The central problem with Chicago’s ordinanceis thatit describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-managementdispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, aboveall else, the First Amendment means that government has no powerto restrict expression because of its message,its ideas, its subject matter, or its content. (Mosley, supra, 408 U.S. at p. 95 [emphasis added].) The recent decision in Best Friends Animal Society v. Macerich Westside Pavilion Property LLC (2011) _ Cal.App.4th _,, 2011 WL 711584, applies Mosley and Carey under California’s Constitution and further illustrates this difference. In Best Friends, an animal-rights organization challenged a mall’s time, place and mannerrestrictions. (/d., 2011 WL 711584 at pp. *1-2.) Under the mall’s rules, noncommercial speech faced onerous restrictions-it could only take place in out-of-the- way areas, was bannedaltogether during blackout dates, and was required to cease whenthestore closest to the designated area was closed. (/bid.) “Qualified” labor speech, by contrast, was not subject to these restrictions. (Id. at p. *1.) As in Mosley and Carey, the challenged rules restricted the plaintiff's speech, and these restrictions applied because of the content of that speech. (See id. at p. *9.) The court accordingly upheld an injunction 15 prohibiting the mall from enforcing its rules against non-commercial, non- labor speakerslike the plaintiff. (/d. at p. *11.) D.C. Waremart, supra, 354 F.3d 870, adds nothing to the analysis. There, the federal court predicted-in a single, conclusory paragraph-that this Court would interpret Mosley and Carey to invalidate the MosconeAct. (Id. at p. 875.) The court did not address any of the fundamental problems with this prediction described herein, such as the absence of any abridgement of speech. The decision has no bearing on Labor Code§ 1138.1, which the court did not discuss. Whatlittle discussion the decision did contain focused on this Court’s holding that the Moscone Act incorporates case law making picketing on private property affirmatively lawful. (Jd. at pp. 875-76 [citing Sears, Roebuck & Co. v. San Diego County Dist. Council (1979) 25 Cal.3d 317].) The federal court concluded that the cases so holding-Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 and Jn re Lane (1969) 71 Cal.2d 872--were no longer good law. But this Court re-affirmed those decisions three years later in Fashion Valley, supra, 42 Cal.4th at p. 864 & fn.6. D.C. Waremart was wrongly decided. Ralphs argues,alternatively, that it does not matter that neither statute restricts speech because the “effect” of the statutes is that speech not involving a labor dispute may be moreeasily restricted on its property than speech involving a labor dispute. (AAB,at p. 18.) But it is Ralphs-not 16 the government-that seeks to exclude speech from its property, and Ralphs would do so by invoking common-law trespassandthe courts’ equity jurisdiction, not by invokingthestatutesit challenges. (Fresno Ralphs, supra, 120 Cal.Rptr.3d. at p. 891 [Wiseman,P.J., dissenting] [“The state and federal Constitutions condemn the suppression of speech,not the protection ofit. The hypothetical trespassing nonlabor speakers whose rights appellant is asserting would be silenced by lawsrelating to trespass and laws allowing the issuance of injunctions, not by the Moscone Actor Labor Codesection 1138.1.”].)° Neither Ralphs’s invocation of common- law trespassnorits request for an injunction is state action underthe First and Fourteenth Amendments. (ROB,at pp. 44-46.) The governmentis not restricting anyone’s speech through Labor Code § 1138.1 or the Moscone Act. C. The First Amendmentdoesnotprotect Ralphs’s property rights. . Ralphs refuses to say whose First Amendment rights the statutes violate. It rightly disavows the Third Appellate District’s conclusion that Labor Code § 1138.1 and the Moscone Act compelit to speak. Ralphs suggests that the statutes mightviolate the rights of hypothetical speakers > Tellingly, when Ralphs discusses whoseeksto restrict speech,it lapses into the passive voice. (AAB,at p. 21 [Moscone Act allows “Union representatives to enter onto Foods Co’s private property . . . when entry may be forbiddento all other demonstrators . . .”], p. 26 [“entry isforbidden to all other demonstrators . . .”].) 17 whowish to demonstrate about non-labor matters. (AAB,at p. 30 fn.23.) Butthis theoryis also baseless, since the statutes do not restrict such speakers from doing so and, in any case, Ralphs lacks standingto raise their constitutional claims. Ultimately, Ralphs settles on the untenable argument that the statutes are unconstitutional under the First Amendment because they interfere with its property rights. The statutes do notrestrict non-labor speakers from demonstrating on Ralphs’s property. Ralphs, not the government, seeks to prohibit speech on its property, and it seeks to use trespass law and the courts’ equity jurisdiction-notthe challenged statutes-to do so. Furthermore, Ralphs does not have standingto raise hypothetical third parties’ constitutional claims. “[A] charge of unconstitutional discrimination can only be raised in a case wherethis issue is involved in the determination of the action, and then only by the person or a memberofthe class of persons discriminated against.” (People v. Globe Grain & Mill Co. (1930) 211 Cal. 121, 127-128; accord People v. Garcia (1999) 21 Cal.4th 1, 11 [“Defendant, in short, lacks standing to assert the equal protection claims of hypothetical felons who maybetreated more harshly becausetheir prior offenses were committed as juveniles.”]; Rubio v. Super. Ct. (1979) 24 Cal.3d 93, 103; see also Los Angeles Police Dept., supra, 528 U.S. at pp. 40-41 [“To the extent that respondent’s ‘facial challenge’ seeksto rely on the effect of the 18 statute on parties not before the Court . . . its claim does not fit within the case law allowing courts to entertain facial challenges.”].)° Unable to formulate a viable First Amendment theory, Ralphs presentsa series of incoherent arguments aboutits property nghts. According to Ralphs, Labor Code § 1138.1 and the MosconeActviolate the First Amendment becausethey interfere with its property rights under the Fifth Amendment and common law. Ralphsclaimsthatthe statutes are unconstitutional because they meanthat“laboractivity as a societal goal outweighs every property owner’s Fifth Amendment rights.” (AAB,at p. 14.) It asserts a “constitutional right” to a trespass cause of action because the statutes allegedly “interfere[] with the property owner’s reasonable investment-backed expectations” and “constitute a taking of property prohibited by the Fifth Amendment.” (/d. at p. 13.) Ralphs claimsthat the statutes are “constitutionally infirm” because they “forc[e] us to allow labor-related expressive activities on our private property when we havethe right to excludeall other expressive activities.” (Id. at 24-25 fn. 21.) These arguments make no sense. Ralphs has not challenged the statutes under the Takings Clause and would be unsuccessful if it did. © On the issue of standing, Ralphs againcites irrelevant cases. (See AAB, at p. 30 n.23.) In Sears, supra, 25 Cal.3d 317, the property owner challenged the MosconeActbyasserting its own due processrights. In the other cited cases, the property owner had standing to assert a common-law trespass cause of action. (E.g., Trader Joe’s Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425.) None of these cases supports Ralphs’s standing to invoke the First Amendmentrights of hypothetical third parties. 19 (Pruneyard, supra, 447 U.S.at p. 84 [“[T]he requirementthat appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amountto an unconstitutional infringement of appellants’ property rights underthe Takings Clause.’”]; Snatchko, supra, 187 Cal.App.4th at p. 490.) It cannot graft this meritless claim onto a First Amendmentchallenge. This Court is not being asked to weigh how “constitutionally mandated”First and Fifth Amendmentrights might best “coexist.” (AAB, at pp. 1-2.) The issue before the Court is whether Labor Code § 1138.1 and the Moscone Actabridge speech in facial violation of the First Amendment. The Fifth Amendmentis irrelevant. Nor does Ralphs have a First Amendmentright to a uniform standard on injunctionsin all cases or to a trespass cause of action against picketing. (ROB,at pp. 33-42.) This argumentis indistinguishable from the First Amendment“right-to-exclude” challenge rejected by the Court in Pruneyard, supra, 447 U.S.at pp. 85-88. There is no constitutional right against targeted, speech-protective modifications to the commonlaw. (Wernerv. So. Cal. Assoc. Newspapers (1950) 35 Cal.2d 121, 130.) No court has ever held that the First Amendmentprotects a private property owner’s “right to exclude” under the common law or Takings Clause. Ralphs has invented this theory to obscure the fact that no First Amendmentright is abridged in this case. (Fresno Ralphs, supra, 120 20 Cal.Rptr.3d at p. 889 [Wiseman,P.J., dissenting] [“Counsel’s reference to the Fifth Amendmentappears to be only an effort to mask the fact that appellant’s constitutional rights are not implicated in this case.”].) D. Ralphs refuses to confrontits constitutional theory’s implications. Ralphs claims that the Legislature is barred from enacting speech- protective statutes on anything other than a universal basis. The Union explained in its opening brief that accepting this theory would invalidate many long-standing state and federal laws. (ROB,at pp. 38-42.) Ralphs responds with emptyrhetoric, claiming that “the sky is not falling” but refusing to confrontits argument’s implications. (AAB,at p. 27.) There is no free-floating First Amendmentprinciple that bars legislatures and courts from protecting particular forms of speech-they do so all the time. Judicially created free-speech protections are inherently content-based. “[S]peech on ‘matters of public concer’.. . is “at the heart of the First Amendment’s protection.’” (Snyder v. Phelps (2011) __ USS. | __, 131 S.Ct. 1207, 1215 [internal citations and quotations omitted].) “Accordingly, ‘speech on public issues occupies the highest rung ofthe hierarchy of First Amendment values, and is entitled to special protection.’” (Ibid. [emphasis added, citing Connick v. Myers (1983) 461 U.S. 138, 145].) Courts dissect the content of speech to determine whether it is entitled to heightened protection from common-law torts such as 21 defamation (New York Times Co. v. Sullivan (1964) 376 U.S. 254) and intentional infliction of emotional distress (Snyder, supra, 131 S.Ct. at p. 1215; Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46). Special protections apply to labor speech as well. (Linn v. United Plant Guard Workers (1966) 383 U.S. 53, 65; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600.) It is absurd to argue that these bedrock First Amendmentcases in fact violate content-discrimination norms because they do notalso extend special protection to speech about private matters or to non-labor speech. But Ralphs is contending that California’s Legislature may not do whatthe judiciary regularly does-provide targeted protection against common-law torts to a class of speech basedon its content. Ralphs admits that state and federal Norris-LaGuardia Acts would be subject to strict scrutiny underits First Amendmenttheory, even though the U.S. Supreme Court has invoked the laws for decades and upheld them over an equal protection challenge nearly identical to Ralphs’s First Amendmentclaim. (AAB,at p. 28; cf. Senn v. Tile Layers Protective Union, Local 5 (1937) 301 U.S. 468, 482-83.) But Ralphs then arguesthat its First Amendment theory has “no bearing on federal law whereit is settled that there is no automatic exception to criminal trespass laws for labor speech.” (AAB,at p. 28.) This argument is confused, for several reasons. First, Ralphs’s theory does 22 not depend on whetherthe labor-related activity takes place on public or private property. According to Ralphs, the Legislature is prohibited from enacting any law that treats one form of speech differently from another. Ralphsbases this theory on Mosley and Carey, which both involved public sidewalks. Second, Ralphs misunderstands federal labor law, which does create an exception to criminal trespass laws for labor speech. Ralphs contends that “{u]nder federal law,it is only where some unique circumstance prevents nontrespassory methods of communication with employees.. . that a labor dispute may legally spill over onto private property.” (AAB,at p. 28.) But this iswrong. Ralphs cites to two cases-Lechmere, Inc. v. NLRB (1992) 502 U.S. 527, 531-535 and NERB v. Babcock & Wilcox Co., 351 U.S. 105, 112-that interpreted the NLRA to limit accessrights of non-employee union organizers.’ But these cases donotapply to employees whenthey access their employer’s property to organize a union. Federal labor law abrogates common-lawtrespass and requires employers to grant employees worksite access to discuss unionization, but not other topics. (Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793; Beth Israel ’ A third cited case, Thornhill v. Alabama (1940) 310 U.S.88, stands for the opposite of Ralphs’s proposition. There, the Supreme Court struck down a state law that effectively criminalized picketing an employer’s “premises or place of business.” (/d. at p. 91.) The Supreme Court held the statute facially unconstitutional in a case in whichthe picketing took place on private property. (/d. at p. 106.) 23 Hosp. v. NLRB (1978) 437 U.S. 483, 491; see also Lechmere, supra, 502 U.S. at p. 537 [distinguishing employee from non-employee organizers].)* Under Ralphs’s novel theory, this central feature of the NLRA-invoked by the Supreme Court and National Labor Relations Board for more than a half-century-is in fact unconstitutional. Ralphs avoids discussing the many other targeted state and federal speech protections that would be caughtup in its constitutional dragnet- evidentiary privileges that protect speech by doctors, journalists, and other professionals; whistleblowerstatutes; the anti-SLAPPstatute; tenant protections; and muchelse. (See ROB, at pp. 38-44.) Its position, apparently, is that these laws shouldalsofacestrict scrutiny. Ralphs’s constitutional theory is unreasonable anddestabilizing. It does not comport with the First Amendment’s plain language or with any existing First Amendmentdoctrine. This Court should rejectit. E. Ralphs’s exegesis on non-employee union organizers’ NLRA accessrightsis irrelevant. Ralphs asks this Court to rewrite the Moscone Act and Labor Code § 1138.1, applying a “least restrictive means”test to limit the statutes’ scope. ® The Union has previously explained that Ralphs’s characterization of federal labor law is mistaken. (Petition for Review, Reply Brief, atp. 8.) Ralphshas neither corrected its presentation-which it repeats verbatim- nor explained howits characterization can be squared with Republic Aviation andits progeny. 24 (AAB,at pp. 30-38.) This discussion is irrelevant becausethe statutes are not subjectto strict scrutiny. Ralphs is confused aboutthe process of constitutional review. It requests that “even if this Court declines Foods Co’s invitation to adopt D.C. Waremart’s conclusions,it should at a minimum find that the survival of the Moscone Act and section 1138.1 depend on a narrow readingthat would apply those statutes only whenthereis no other reasonable,practical or feasible means for a union to express its views to an employer’s customers.” (AAB,at p. 32.) But neither statute is content discriminatory under the First Amendmentandso neither is subjectto strict scrutiny. Both statutes pass rational basis review-the Legislature rationally concluded that limiting judicial involvementin labor disputes is a worthy goal. (Sears, supra, 25 Cal.3d at p. 332; ROB,at pp. 21-33.) Ralphs does not argue otherwise. Ralphs confounds judicial review of popularly enacted statutes under the First Amendmentwith this Court’s interpretation of California’s Liberty of Speech Clause. It asks this Court to adopt federal law interpreting the NLRA andlimit the Moscone Act and Labor Code § 1138.1 to situations in which a union has no other feasible means of communicating. But California’s Legislature-through the Moscone Act-hasestablished a different substantive rule governing speech onprivate property. There is no basis in the Moscone Act’s text for limiting it to situations in which a union 25 lacks alternative means of communication. Ralphs’s request makes even less sense when applied to Labor Code § 1138.1, which governs equity procedure and contains no substantive rules on property access or expression. This Court does notsit as a super-legislator. As Justice Wiseman, dissenting from the Fifth Appellate District’s decision, stated: “Unlike in Robins v. Pruneyard and Fashion Valley Mall, in which the outcome depended only upon the Supreme Court’s interpretation ofthe state Constitution, here there is a legislative judgment which requires deference unless binding authority compels its invalidation. There is simply no binding authority compelling invalidation of the statutes challenged here.” (Fresno Ralphs, supra, 120 Cal.Rptr.3d at p. 892 [Wiseman,P.J., dissenting].) The proper audience for Ralphs’s complaintis the Legislature, not this Court. II. The WalkwaysAnd Parking Lot Fronting The Store Are Pruneyard Forums. The Court should resolve this case solely under the Moscone Act and Labor Code § 1138.1, which thetrial courts in the Third and Fifth Appellate Districts correctly applied to deny Ralphs a preliminary injunction. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [“ ‘[T]his Court will not decide constitutional questions where other groundsare available and dispositive 26 of the issues of the case.’ ”] [quoting Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 66].) If the Court does address Ralphs’s argument under California’s Liberty of Speech Clause, it should confirm that Californians havea right to protest against the businesspractices of large retail stores in shopping centers like College Square. While Ralphs characterizes such a holding as a “leap of logic,” it is not. (See AAB,at p. 11.) It is a position that this Court has consistently maintained for nearly 50 years. (See Fashion Valley, supra, 42 Cal.4th at p. 864.) Ralphs is asking this Court to break with settled precedent, not to extend it. A. Foods Co is neither a “stand-alone store” nora “modestretail establishment.” The court below recognized College Square as a Pruneyard-type shopping center, with “commonareas and restaurants where outdoor seating was available[.]” (Ralphs, supra, 113 Cal.Rptr3d at p. 98.) But it held that even large retail store within such a shopping center can prohibit all speech onthe sidewalks fronting its store because sidewalks are “not designed andpresentedto the public as public meeting places.” (/bid.) Underthe Third Appellate District’s view, large retailers may go beyond limiting speech on their sidewalks through reasonable time, place and mannerrestrictions, and may declare speechto be categorically off-limits. 27 Ralphs takes a different tack. It claims that it is a “modestretail establishment” and a “stand-alonestore,”and so falls within the exception set forth in Robins v. Pruneyard Shopping Ctr. (1979) 23 Cal.3d 899, 910- 11. (AAB,at pp. 6, 13.) It also disputes that College Squareis a Pruneyard-type shoppingcenter, claiming that this Court’s characterization of the issue presentedis “mistaken insofaras it appears to assumethat Foods Co’s College Square store is located in a Pruneyard-type shopping center.” (AAB,at p. 13.) But the Third Appellate District recognized that Ralphsis a “large warehousegrocerystore,” physically connected to otherretail stores and anchoring a shopping center containing courtyards, outdoor seating areas, and an integrated scheme of walkways. (See Ralphs, supra, 113 Cal.Rptr.3d at pp. 94-95.) Foods Cois neither a “modestretail establishment” nor a stand-alone store. (NLRB v. Calkins (9th Cir. 1999) 187 F.3d 1080, 1092 [“ ‘[W]hatever “modest retail establishment” means,it does not include . . . a “large supermarket-type grocery store.” ’ ”] [quoting BankofStockton v. Church ofSoldiers ofthe Cross ofChrist (1996) 44 Cal.App.4th 1623, 1629].) College Square, like the Pruneyard Shopping Center, invites the public not just to shop butto dine in its restaurants and congregate in its commonareas. Outdoor, community shopping centers 28 like College Square-ratherthan indoor regional malls-are increasingly the norm in California’s communities. (ROB,at p. 54.)” In support ofits claim that its store is simply a “modest retail establishment,” Ralphs cites inapposite cases. Manyof these cases involved banks and medical centers, which are not Pruneyard forums because they are not generally open to the public. (AAB,atp. 6. fn.4.) Other cases involved true stand-alone stores that were unconnected to any larger shopping center. (/bid. [citing Trader Joe’s, supra, 73 Cal.App.4th at pp. 438-39; Costco Co. v. Gallant (2002) 96 Cal.App.4th 740, 755].) Twodecisions bear a superficial resemblance to this case- Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106 and Van v. Target Corp. (2007) 155 Cal.App.4th 1375.'° But those cases do notsupport Ralphs’s position. In A/bertson’s, the court held that a supermarket’s location in a larger shopping center did not make it a Pruneyard forum because, unlike College Square, the shopping center had “no enclosed walkways, plazas, courtyards, picnic areas, gardens, or other areasthat might invite the public to congregate[.]” (Albertson’s, supra, 107 * Although College Squareis smaller than the Pruneyard Center,there is no evidencethat it is a marginal shopping center. Ralphs claims that College Square “doesn’t have 25,000 visitors a week, let alone in aday,” but there is no evidencein the record to support this claim. (See AAB,at p. 5.) '° Federal courts interpreting California law have concludedthat grocery stores in shopping centers like College Square are Pruneyard forums. (ROB,at p. 57.) 29 Cal.App.4th at p. 733.) Furthermore, neither A/bertson’s nor Van involved speechthat directed a grievance against the business targeted, as both courts stressed. (/d. at pp. 734-35 [distinguishing /n re Lane (1969) 71 Cal.2d 872 becauseit “involved expressive activity specifically related to the business use of the property. . . a matter of distinctive significance”]; Van, supra, 155 Cal.App.4th at p. 1389 [“[W]e see no relationship between the ideas soughtto be presented and the purpose of the property’s occupants.”|.) There is no reason for speechrights to be treated worse under Pruneyard when exercised in community shopping centers like College Square than whenexercised in indoor malls. There is no basis for categorically excluding a shopping center’s sidewalks and parking lots from California’s Liberty of Speech Clause. The Union-like the vendors, missionaries, and political organizations who also communicated with the public in front of the Foods Co store-rightly saw these spaces as public forums. B. The Union seeks to protest against Ralphs. This might be a more difficult case if the Union were not demonstrating against Ralphs’s business practices. But “citizens have a strengthenedinterest, not a diminishedinterest, in speech that presents a grievance againsta particular business in a privately owned shopping 30 center, including speech that advocates a boycott.” (fashion Valley, supra, 42 Cal.4th at p. 864.) Accordingly, demonstratorscriticizing a large retailer like Ralphs have a right to do so from the sidewalk fronting the store. (Jn re Lane, supra, 71 Cal.2d at p. 878; Schwartz-Torrance, supra, 61 Cal.2d at pp. 769-71; Fashion Valley, supra, 42 Cal.4th at p. 864 [“It has been the law since we decided Schwartz-Torrance in 1964, and remainsthe 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 businessinterests.”].) The reason is simple: ‘‘on-the-spot public criticism” of business practices is a fundamental form of speech that depends largely on physical proximity to the targeted business to be effective. (/d. at p. 860; Diamond v. Bland (1970) 3 Cal.3d 653, 662; see also Best Friends, supra, 2011 WL 711584 at p. *8 (“[I]t is a general proposition that a shopping mall must allow protests within aural and visual range ofa targeted business wheneverthe mall is opento the public.”].)" This does not mean that Ralphs could not promulgate time, place and mannerrules limiting the Union’s and other speakers’ location within College Square. But in order for such rules to be valid, Ralphs would have to present compelling evidence that they were necessary for some purpose t Speech advocating a boycott is also at the heart of our national experience. (ROB,at pp. 59-60; Fashion Valley, supra, 42 Cal.4th atp. 869.) 31 other than preventing the Union’s boycott from interfering with its sales- such as problems with ingress and egress in front of its store. (Fashion Valley, supra, 42 Cal.4th at p. 869.) As explained below, no such evidence exists. The Third Appellate District’s rule that the sidewalks and parking lots fronting large retailers like Foods Co are categorically non-public under California’s Constitution-even when usedto criticize the targeted retailer-is contrary to this Court’s precedent. It would effectively end on- the-spotcriticism of businesses located outside of California’s central businessdistricts. III. Ralphs’s Time, Place and MannerRestrictions Are Unreasonable and WereDiscriminatorily Enforced. In a final gambit, Ralphs claimsthat this is merely a dispute over whetherit may enjoin the Union from violating reasonable time, place and mannerrestrictions. (AAB,at pp. 38-47.) This is disingenuous. Nothing in the Moscone Act or Labor Code § 1138.1 prevents Ralphs from enforcing such rules. But Ralphs’s restrictions are unreasonable and discriminatorily enforced. The Moscone Act does not prevent Ralphs from enforcing reasonable time, place and mannerrestrictions to “preventactivities that obstruct or unreasonably interfere with free ingress and egress, and which will interfere with the normal use of the property by others with an equal 32 right of access.” (Cf. AAB,at p. 41-42 fn.29; Code Civ. Proc. § 527.3(e) [It is not the intent of this section to permit . . . the unlawful blocking of access or egress to premises wherea labor dispute exists, or other similar unlawful activity.”]; M Restaurants v. San Francisco Local Joint Exec. Bd. (1981) 124 Cal.App.3d 666, 681-686 [upholding under MosconeAct an injunction against picketing that blocked ingress and egress to restaurant].) Nor does Labor Code § 1138.1 prevent Ralphs from enforcing such rules- a violation of reasonable time, place and mannerrestrictions would satisfy the “unlawful acts” prongofthat statute. (Lab. Code § 1138.1(a)(1).) Thetrial court held as an evidentiary matter that Ralphs applied its restrictions discriminatorily and had “failed to carry its burden ofproofthat its rules are reasonabletime, place and manner restrictions within the guidelines of Fashion Valley Mall LLC v. NLRB{.]”(3 JA 0640.) The Third Appellate District agreed, finding it necessary to address the store’s status as a public forum because“if the front entrance and apron of the Foods Costore are a public forum, we need not consider the constitutionality of the Moscone Act and Labor Codesection 1138.1 because Ralphs’s time, place, and mannerrestrictions were unreasonable for a public forum andthat conclusion byitself supports the trial court’s decision to deny injunctive relief.” (Ralphs, supra, 113 Cal.Rptr.3d at p. 97 [emphasis added].) Ralphs’s claim that neither the trial nor appellate court addressedtherestrictions is bizarre. (Cf. AAB,at p. 42.) 33 If the Court is inclined to addressthis issue, it should affirm the lowercourts’ determinations. Because Ralphs discriminatorily appliedits restrictions to the Union’s speech,therestrictions are subjectto strict scrutiny. (Fashion Valley, supra, 42 Cal.4th at pp. 865-66.) Even if Ralphs had applied the restrictions even-handedly, it was required to demonstrate that they are “narrowly tailored” and “leave[] open ample alternative avenues of communication.” (/d. at p. 865; Snatchko, supra, 187 Cal.App.4th at p. 491.) Ralphs did not submit any competent evidence to the trial court demonstrating that restrictions barring all expressive activity during the entire weeks before Labor Day andsix other holidays; limiting organizations to two representatives; and proscribing speech intermittently for over five hours each day were necessary to “avoid congestion and traffic problems”at the store. (AAB,at p. 45.) Ralphsrelies on a declaration from one ofits corporate officers reciting the general purposeofthe restrictions. (AAB,at p. 46 [citing 2 JA 259].) The Union objected to this declaration, andthetrial court did not admitit. Q JA 0316) In any case, this conclusory statement-which was not specific to the Sacramento store-is not competent evidence to demonstrate that the restrictions are narrowly tailored. (Best Friends, supra, 2011 WL 711584 at p. *8 [defendant may notjustify blackout dates as a “ ‘commonsense’ measure to decrease crowding during peak times” without providing evidencethat “less restrictive alternatives would not 34 promote the sameinterest”]; Kuba v. Marine World Joint Powers Auth. (E.D. Cal. 2006) 2006 WL 1376837,at *5 [although defendants’ “interest in orderly crowd control may besignificant,” court may not uphold time, place and mannerrestrictions where “defendants have not presented any evidence to establish the strength of this interest’’}.) Ralphs’s desire to “ensure that [the Union] do[es] not interfere with the store’s raison d’étre-selling waresto its customers”is not a legitimate interest justifying peak-timerestrictions on a boycott. (AAB,at p. 42; cf. Fashion Valley, supra, 42 Cal.4th at p. 869; Snatchko, supra, 187 Cal.App.4th at p. 489 [“shopping mall’s business interest in ensuringits shopping customer’s convenience and undisturbed comfort in order to preventloss of customers and maximizeprofit” is not a compelling interest]; United Bhd. ofCarpenters Local 586 v. NLRB (9th Cir. 2008) 540 F.3d 957, 973 [“Limiting expressive activity to non-peak times eliminates the opportunity to commentuponorcriticize-directly and in-person- tenants’ actions .. . and forecloses any chanceof effectively reaching a large percentage of the target audience.”]. /// /// /// /// /// 35 CONCLUSION The Legislature enacted the Moscone Act and Labor Code § 1138.1 to limit California courts’ role in regulating labor disputes. The Third Appellate District warped content-discrimination doctrine and arrogated to itself the legislative function. It unnecessarily addressed the application of the Liberty of Speech Clause to College Square’s sidewalks, and then ignored this Court’s consistent holding that California’s citizens have a right to protest a large retailer’s business practices from a shopping center’s sidewalks. This Court should reverse. Dated: March 22, 2011 Respectfully submitted, DAVIS, COWELL & BOWE LLP Richard G. McCracken Steven Stemerman Elizabeth A. Lawrence Andrew J. Kahn Paul L. More Sarah Grossman-Swenson Attorneys for Defendant and Respondent United Food & Commercial Workers Local 8 36 CERTIFICATE OF WORD COUNT Pursuant to Rule 8.204(c)(1) of the California Rules of Court, counsel herebycertifies that the abovebrief is produced using 13 point Times New Romanfont, with 13-point and 14-point Cambria font for the headers, and contains 8,304 words, including footnotes, and excluding the cover, the signature block andthis certificate. Counsel relies on the word count of the computer program usedto prepare this brief. Dated: March 22, 2011 DAVIS, COWELL & BOWE, LLP “Paul L. More - Attorneys for Defendant and Respondent United Food & Commercial Workers Local 8 PROOFOF SERVICE Re: Case Number: 8185544 Third Appellate No. C060413 Case Title: Ralphs Grocery Company v. United Food Commercial Workers Union Local8 . I hereby declare that I am a citizen of the United States, I am over 18 years of age, and I am not party in the above-entitled action. Iam employed in the County of San Francisco and my business address is 595 MarketStreet, Suite 1400, San Francisco, California 94105. On March 22, 2011, I served the attached documentdescribed as REPLY BRIEF ON THE MERITSonthe parties 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 envelopesin a U.S. Postal Service mailbox in San Francisco, California addressed as follows: Miriam A. Vogel Timothy F. Ryan 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 Antonette Cordero Deputy Attorney General Off.e of the Attorney General Suite 1700 300 So. Spring Street Los Angeles, CA 90013 Attorneysfor Amicus Curiae Respondent William J. Emanuel Natalie Rainforth LITTLER MENDELSON,PC 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Attorneysfor Amici Curiae for Appellant Clerk of the Court Attn: The Hon. Loren E. McMaster SACRAMENTO SUPERIOR COURT 800 9"Street Sacramento, CA 95814-2686 CALIFORNIA NURSES ASSOCIATION 2000 Franklin Street Oakland, CA 94612 Attorneysfor Pub/Depublication Requestor Stephen P. Berzon Scott A. Kronland P. Casey Pitts ALTSHULER BERZON LLP Suite 300 177 Post Street San Francisco, CA 94108 Attorneysfor Pub/Depublication Requestor Change to Win and the SEIU International Union J. David Sackman REICH, ADELL & CVITAN Suite 2000 3550 Wilshire Boulevard Los Angeles, CA 90010 Attorneysfor Pub/Depublication Requestor Korean Immigrant Workers Alliance (KIWA) Christina C. Bleuler CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION 2045 Lundy Avenue San Jose, CA 95131 Attorneysfor Pub/Depublication Requestor Robert A. Cantore GILBERT & SACKMAN Suite 1200 3699 Wilshire Boulevard Los Angeles, CA 90010-2732 Attorneysfor Pub/Depublication Requestor UFCWLocal 324, Studio Transportation Drivers and Local Union No. 399 David A. Rosenfeld WEINBERG, ROGER & ROSENFELD Suite 200 1001 Marina Village Parkway Alameda, CA 94501-1091 Attorneysfor Pub/Depublication Requestor Henry M.Willis SCHWARTZ, STEINSAPIR, DOHRMANN & SOMMERS Suite 2000 6300 Wilshire Boulevard Los Angeles, CA 90048-5268 Attorneysfor Pub/Depublication Requestor UFCWLocals 135, 770 and 1428 Jeffrey S. Wohlner WOHLNER KAPLON PHILLIPS YOUNG & CUTLER Suite 304 16501 Ventura Boulevard Encino, CA 91436 Attorneysfor Pub/Depublication Requestor UFCWLocal 1167 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct and was executed onthis 22"4 day of March, 2011 at San Francisco, California. “Miriam I. Tom