RALPHS GROCERY v. UNITED FOOD & COMMERCIAL WORKERS UNIONRespondent’s Reply to Answer to Petition for ReviewCal.September 24, 2010 Case No. S185544 RALPHS GROCERY COMPANY, Plaintiffand Appellant Vv. 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) PETITION FOR REVIEW REPLY BRIEF 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 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 pgs CALIFORNIA RULES OF COURT, RULE 8.29(C)(1) oe ,oe s Case No. $185544 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) PETITION FOR REVIEW REPLY BRIEF 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 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 0...ee cceseeseeeteseeeteueesesaeeeesanesssecseessaseseeeesseeessseeenaees l ARGUMENT. on... ceccceececeeeneceseceecsaeesseeesaeessaeseseessseeeseneenssesesaeseenseesseneeaeenaa 4 A. Labor Code § 1138.1 and the Moscone Act Are Constitutional 20.0.0. ececeesecsessecssesseseeeenscteerseeneenecnes 4 B. The Decision Below Threatens Many Uncontroversial State and Federal Statutes ............eee 7 C. The Sidewalks in a Pruneyard-type Shopping Center Are Public Fora .......cceecsscceseceeeeeseceeeseeesseeeseeetenaeens 11 D. The Court Should Not Wait For the Fifth Appellate District . 0.0.eeseeeeee reese eeeseeeeceeesneeseensenes 14 CONCLUSION 0. eee eececeeeseceseeeneerneeeeeeseeenseeesssesseeeaeeasaseneaeeeneneenseeseees 18 TABLE OF AUTHORITIES FEDERAL CASES Beth Israel Hosp. v. NLRB (1978) 437 U.S. 483 o..eccecccccceceeeeeeseeeeeteeeseeenseeseseteseeeeeeaseneeeesetsieas 8 Carey v. Brown (1980) 447 U.S. 455 woo.cee eeeeeneeeeeeeeeseeeeeseeeetseseeeeneeens 5,6, 11, 13 Hudgens v. NERB (1976) 424 U.S. 507 ooeeeccecceccesecteceeeereeneeeneeeneteeeteeetneeneeeeeenaee 2,6 Kohler Co. v. Sheet Metal Workers Int’l Ass’n (E.D. Tenn. 1979) 468 F.Supp. 1016 oeeee eeeeeeeerereneens 11 Lechmere, Inc. v. NLRB (1992) 502 U.S. 527 o.eeeeeccecceeseeescesetenecneeeeeeeneeceeeseaetesseaeenseeteeeeneete 8 Lloyd Corp. v. Tanner (1972) 407 U.S. SSL ee eececeeseeteeceeeeeeeneeeeeessesetesesseessesaeseseeesseeneeenes 6 Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999) 528 U.S. 32 iceceeccceceteeeeesteeeneesteeeeeteeeeteeeeneeeneeneteeeeees 5, 16 La. Chemical Equipment Co., Inc. v. Laborers Int'l Union ofNorth America, Local 41 (N.D. Ind. 1987) 1987 WL 47729 oesee etree eeeetsensereeneees 11 Nat’! Endowmentfor the Arts v. Finley (1998) 524 U.S. 569 oecceccesceseeesceceeeeeeeesetseetseeaeseseesesessasesseneseanes 5 Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983) 460 U.S. 37 woeeeceeecececeeeseeeteeeeeeeeessereesntesssseeeseeneessesesecaeengs 6 Police Dept. v. Mosley (1972) 408 U.S. 92 woe ececceeeeteeeereetereeeeeeceteresenenereneeenens 5,6, 11, 13 PruneYard Shopping Ctr. v. Robins (1980) 447 US. 74 oieceeeceeeeenceeeeesenaeeeseessaeeeeeeteeneterenenaas passim il Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 ...ecccccccecessesseeseseesesscesensssecsecsesseesesneeresneeneeneeeaees 8 Rumsfeld v. Forumfor Academic & Institutional Rights (2006) 547 U.S. 47 cocecececceseseeseessescrscseceseneeeeseseeeeesseeensenaeenreneey 2,7 Simon & Schuster, Inc. v. Members ofthe N.Y. State Crime Victims Bd. (1991) 502 U.S. 105 oe eeeeecesesceseeceeeeeeseeseessneseecsssesneseeeseeseeeneey 5 Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870 oo..ccccceccceeseseeteeseeteeneteesereeeceereeeeees 5 STATE CASES Agricultural Labor Relations Bd. v. Super. Ct. (1976) 16 Cal.3d 392 wee eceseccesseseeseeeeeseesseecneeseneessetecettesenetaey 8 City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43 occ cceccscescseseeesessscneenecneesesseesnecneees 16 Fashion Valley v. NERB (2007) 42 Cal.4th 850 oo.cee eeeeereseeesecsrseseseeesseesnseenees 2, 13,14 Golden Gateway Ctr. v. Golden Gateway Tenants’ Ass'n (2001) 26 Cal.4th 1013 occeee eecceeeserseeneeneenteenesseeseeneeens 2, 6,9 In re Lane (1969) 71 Cal.2d 872 woeseesceeeeeserseesesteeneetsseseenes 1, 2, 13, 14 Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342 oo.eeeeceneesereecerecreecseeeeeeseensesneeenes 16 People v. Garcia (1999) 21 Cal.4th Looeeecseeseeeeeecesseesesseceeesessssenesteesaeenee 4,15 Ralphs Grocery Co. v. UFCWLocal 8 (2010) 186 CalApp.4th 1078 oo...ceeeseeteeereeteeneee passim Rubio v. Super. Ct. (1979) 24 Cal.3d 93 oeeeceecseeessessesesssceseesessesteseseeeseereseneeees 4,15 11 Schwartz-Torrance Investment Corp. v. Bakery & Confectionary Workers’ Union (1964) 61 Cal.2d 766 oo.eeeeeeeccecceceesceceeeeeeeeeeneeeseesentenens 1,2, 13, 14 Sears, Roebuck & Co. v. San Diego County Council of Carpenters (1979) 25 Cal.3d 317 .oceeecceseseeeeseseeseeceeeeeeeeeeeeseseeesssesseessensesserneaes 1 Van v. Target Corp. (2007) 155 CalApp.4th 1375 oereee ee ee eeeeeeeeees 12, 13 Wernerv. S. Cal. Assoc. Newspapers (1950) 35 Cal.2d 121 oeeccceeccccccececenecerecneeseeeeetseeeeeseseeesnestseeentaes 8 FEDERAL STATUTES Norris-LaGuardia Act, 29 U.S.C. § 107 oooceecccecceeesseetereeeeennenereras 2,10 CALIFORNIA STATE STATUTES & REGULATIONS Cal. Code Regs., tit. 8, § 20900 oo.eeeee eeereest eters renee sense eneeetnesenten 8 Civil Code § 43.7 oicceccccescecseseecseeeeeeeeeeeeesseeeeseeseeensreesenssesaeecessessaressaeeseetens 8 Civil Code § 48a oo... cccccccecccceceneecseneeeeesscesesececesnesecnaneseeeeseseateeseneeeeeseeeee 8 Civil Code § 1942.6 voecccccccccccsesseececeeesceeeneceeeeceeeeeaeeenieeeenneersneseeatessaeeeaeers 9 Code Civ. Proc. § 425.16 cic eeccceccceecesctnecesenneeesesenaeeeeesessseeeeseseneaeeeseaaes 9 Evid. Code §§ 960 .oi...cccccecseeceseeseeseeeeeeeesnaeceeeeesseseseeseeerenaeeseaeesenessaeesaaees 9 Lab. Code § 1102.5 wii. ieeieeceessececeseeeeeeneceseseecesaeeeseasesesauaeecnsaeeseenaeeteneesen 9 Lab. Code § 1138 21oeeeesenteecerseseceeseessesseseeseeseseeeenserenseeersees passim OTHER STATE STATUTES Haw.Rev.Stat. § 380-7 ......cccceeccscccesnnnnnecsssseeeeessneeeetecseeeneeeseesneneteresnanenees 10 Ind. Code § 22-6-1-6 ..cecccccescecsseecceeereeeeeeeteneeeeseeeeetaeeeseaeeseeeeseeeetsatessatesigs 10 lV Mass. Gen. Laws 214 § 6 ooo. ececceecsneeceeeseeusseeeeensceeeeecsssseeeeesnseeeeeness 10 Minn. Stat. § 185.13 cee eeceeeeesseeseseseecseeesseeesnsesssaeessseeseseeessesenneerseeeetgs 10 Or. Rev. Stat. § 662.080 oo... cececeeeceseeseeeseessceseeeeseesseeeseseneeeseeneeenieerseescaeens 10 A3 Pa. Stat. § 2061 ..ccccecececcceeeecceseeceseceeessseesseseeessesecseesssessasseeenenenseenees 10 R.L. Gen. Laws § 28-10-20...cececseseeessee cesses cesneeesesseeesseneeesneaseseneanes 10 Wash.Rev. Code § 49.32.072 .....eececccesceeseeesseeceeeeseeseeeeisesereeetseeessaeeseeeeees 10 CALIFORNIA RULES OF COURT Cal. Rules of Court, rule 8.1105(€)(1) occeeeeeeecetesseesseeeseeeeeeseeeeneaeens 17 Cal. Rules of Court, rule 8.504(e)(1)(B) ..... eee ceceecceeeeeeeeeteeeessteeeeeenees 15 Cal. Rules of Court, rule 8.512(D)(1) oo.ee eceeceecsseeeereeseeeetaeeessseneee 3,15 INTRODUCTION The Third Appellate District struck down two California statutes that the Legislature enacted to limit the power of the State’s courts. It misapplied First Amendmentcontent-discrimination doctrine in a manner that conflicts with precedent and would call into question many California and federal laws. It created a new “negative” First Amendment nghtto exclude speakers from commercial property that the United States Supreme Court has expressly rejected. The court enjoined Respondent UFCW Local 8’s peaceful picketing of a grocery store, notwithstanding this Court’s holdings in Schwartz-Torrance Investment Corporation v. Bakery & Confectionary Workers’ Union (1964) 61 Cal.2d 766, Jn re Lane (1969) 71 Cal.2d 872, and Sears, Roebuck & Co. v. San Diego County Council of Carpenters (1979) 25 Cal.3d 317, and it placed the sidewalks abutting retail stores in Pruneyard-type shopping centers categorically outside of California’s free speech clause, even when those sidewalks are used to criticize a store’s businesspractices. Ralphs does not disagree that the decision below presents important questions of law that this Court should resolve. Instead, it argues that the Court should simply endorse the Third Appellate District’s opinion by “summarily” denying review. (Answer, at p. 6.) But Ralphs’s answering brief does not address the substantive points raised in this petition, and makeslittle attempt to defend the Third Appellate District’s reasoning. 1 Ralphs doesnot explain howstatutes that contain no restrictions on speech can violate the First Amendment, or how a private property owner’s invocation of the courts’ equity jurisdiction to restrict speech can amountto state action. (Cf. Hudgens v. NLRB (1976) 424 U.S. 507, 519-20; Golden Gateway Ctr. v. Golden Gateway Tenants’ Ass’n (2001) 26 Cal.4th 1013, 1034.) Ralphs does not mention the “negative” First Amendment nght to exclude speechthat the court below grantedit, or the United States Supreme Court cases denying that such a right exists. (See PruneYard Shopping Ctr. v. Robins (1980) 447 U.S. 74, 87; Rumsfeld v. Forum for Academic & Institutional Rights (2006) 547 U.S. 47, 65.) Nor does Ralphs defend the Third Appellate District’s conclusion that Schwartz-Torrance and Lane are no longerviable precedent—a conclusion at odds with Fashion Valley v. NLRB (2007) 42 Cal.4th 850, 864 n.6. Ralphs accuses Respondent, the American Civil Liberties Union, the AFL-CIO,and other amici who urge review of being “Chicken Littles”for warning of the decision’s radical reach. (Answer, at p. 14.) But Ralphs does not explain why the Third Appellate District’s constitutional reasoning would not apply equally to provisions of the Norris-LaGuardia Act, other states’ Little Norris-LaGuardia Acts, the National Labor Relations Act, the Agricultural Labor Relations Act, California’s anti-SLAPP law, evidentiary privileges, landlord-tenant laws, whistleblower statutes, and many other state and federal laws that provide targeted, content-based speech protections. Alternatively, Ralphs argues that the Court should not grant review but should let the decision stand and wait to see what happensin a case pendingin the Fifth Appellate District. (Answer, at p. 16.) This proposal makes no sense. The Third Appellate District’s decision demands review—it strikes down two important California statutes, contradictsthis Court’s settled precedent, and calls into question significant amounts of other legislation. Absent review or de-publication of the decision below, the State’s trial courts will be faced with a conflict between this Court’s holdings and the Third Appellate District’s view. Oral argumentin the parties’ Fifth Appellate District case is not scheduled until November 2010, and Ralphs’s counsel recently sent a letter requesting that the hearing be pushed back until Decemberor January. It is therefore unlikely that the Fifth Appellate District will issue any decision prior to the time within which the Court must rule onthis petition. (See Cal. Rules of Court, rule 8.512(b)(1).) Whenit doesissue its decision, the Fifth Appellate District may well avoid ruling on the constitutionality of Labor Code § 1138.1 or the Moscone Act. For example, the Fifth Appellate District might hold that Ralphs does not have standing to challenge alleged content-discrimination against hypothetical non-labor speakers, and so avoid ruling on the merits of Ralphs’s First Amendmentclaims. (See Rubio v. Super. Ct. (1979) 24 Cal.3d 93, 103; People v. Garcia (1999) 21 Cal.4th 1, 11-12.) Or the Fifth Appellate District might hold that the sidewalk in front of Ralphs’s grocery store is a Pruneyard forum,and that Ralphs’s time, place and manner restrictions are unreasonable. Or it might find that Ralphs cannot meet the traditional equitable requirements for an injunction, and so not reach the issue of whether Ralphs can meet the heightened standardsset forth in the challengedstatutes. Underany of these scenarios, this Court would have no opportunity to review the constitutionality of Labor Code § 1138.1 and the Moscone Act, and the Third Appellate District’s view would remain the law. The Court should grantthe petition for review and provide guidance to the State’s courts on the important constitutional issues raised in this case. ARGUMENT A. Labor Code § 1138.1 and the MosconeAct Are Constitutional. Ralphs clearly devoted attention to its answerbrief’s rhetorical flourishes—including a context-less photo ofits storefront—butit failed to address the legal substance of this petition. Ralphs provides no real defense of the Third Appellate District’s ruling that Labor Code § 1138.1 and the Moscone Act are unconstitutional; it simply recites the court’s holding. (See Answer, at pp. 9-14.) The Third Appellate District’s reasoning is profoundly wrong. (Pet., at pp. 15-29.) Neither Labor Code § 1138.1 nor the Moscone Act abridges anyone’s speech,even indirectly. The court’s reliance on Police Department v. Mosley (1972) 408 U.S. 92 and Carey v. Brown (1980) 447 U.S. 455 was therefore misplaced. (Pet., at pp. 17-20.) It is “the government’s ability to impose content-based burdens on speechthatraises the specter that the government mighteffectively drive certain ideas or viewpoints from the marketplace.” (Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116 [emphasis added].)' Neither statute burdens any speech. In order to makea facial challenge to the statutes, Ralphs was required to “demonstrate a substantial risk that the application of the provision will lead to the suppression of speech.” (Nat'l Endowmentfor the Arts v. Finley (1998) 524 U.S. 569, 580 [emphasis added]; seealsoid. at p. 595 (Scalia, J. concurring); Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999) 528 U.S.32, 40 [private publishing company maynotbring facial First Amendment challenge tostatute that“is Tellingly, other than the D.C. Circuit’s cursory, advisory discussion of the Moscone Act in Waremart Foods v. NLRB (D.C. Cir. 2004) 354 F.3d 870 (see Pet., at p. 26 fn.13), Ralphs can point to no casestriking down an exclusively speech-protective law as violating the First Amendment. not an abridgementof anyone’s right to engage in speech, be it commercial or otherwise’’].) Ralphs can make no such showing. Nordothe statutes involve any governmental abridgement of speech. They simply makeit more difficult for private parties to get injunctions, including injunctions against trespass. But a private property owner’s invocation of commonlawtrespassis not state action underthe First Amendment. (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 567; Hudgens, supra, 424 U.S.at pp. 519-20; see also Golden Gateway, supra, 26 Cal.4th at p. 1034 [“[JJudicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California’s free speech clause.”].) By contrast, Mosley and Carey involved governmental restrictions on speech in a public forum, which wascritical to both decisions. (Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983) 460 U.S. 37, 54 [“The keyto those decisions, however, was the presence of a public forum. In public forum,by definition,all parties have a constitutional right of access and the state must demonstrate compelling reasonsforrestricting access to a single class of speakers, a single viewpoint, or a single subject.”].) The Third Appellate District recognized these fundamental differences betweenthestatutes before it and the laws at issue in Mosley and Carey. (Ralphs Grocery Co. v. UFCWLocal 8 (2010) 186 Cal.App.4th 1078, 1095.) But in the absence of any governmentalrestriction on speech, the court simply invented one sua sponte. It held that Labor Code § 1138.1 and the MosconeActinfringe on Ralphs’s First Amendmentright to exclude unwanted speech from its property. (Ralphs, supra, 186 Cal.App.4th at pp. 1083, 1095, 1101 [“Labor Code section 1138.1 abridges Ralphs’s free speech rights by forcing it to host or accommodate speech with which it disagrees.”].) This contradicts United States Supreme Court precedentexpressly rejecting this view. (PruneYard Shopping Ctr., supra, 447 U.S. at p. 87; Forumfor Academic & Institutional Rights, supra, 547 US.at p. 65.) In its brief, Ralphs does not address any of these deficiencies in the Third Appellate District’s constitutional reasoning. This Court should grant review to correct the Third Appellate District’s mistaken view ofthe First Amendment. B. |The Decision Below Threatens Many Uncontroversial State and FederalStatutes. As Respondent’s petition and the manyletters urging review have explained, the Third Appellate District’s constitutional reasoning calls into question a substantial amountoflegislation. (Pet., at pp. 20-25.) Under the Third Appellate District’s erroneous view,statutes that protect categories of speech on a less-than-universal basis are subjectto strict scrutiny. (Ralphs, supra, 186 Cal.App.4th at p. 1098.) But many California and federal statutes provide less-than-universal protection. Civil Code section 48a and 43.7 protect journalists and doctors, but not other speakers, from common-law defamation actions. This Court rejected an equalprotection challenge to section 48a’s targeted classification, but under the Third Appellate District’s approach,that statute unconstitutionally “favors”a particular category of speech. (Compare Ralphs, 186 Cal.App.4th at p. 1095, with Wernerv. S. Cal. Assoc. Newspapers (1950) 35 Cal.2d 121, 130-131.) The National Labor Relations Act requires employers to grant their employees worksite access in order to discuss unionization, but not other topics, and California’s Agricultural Labor Relations Act requires that growers grant access to union representatives engagedin organizingbut not other speech. (Beth Israel Hosp. v. NLRB (1978) 437 U.S. 483, 491; Lab. Code § 1152; Cal. Code Regs., tit. 8, § 20900; Agricultural Labor Relations Bd. v. Super. Ct. (1976) 16 Cal.3d 392, 400-411 .° Whistleblowerstatutes prohibit 2 Ralphs’s claim that “[uJnder federal law,it is only where some unique circumstance prevents nontrespassory methods of communication with employees (a company town, a mine, a logging camp,a remote lodge) that a labor dispute maylegally spill over onto private property” is simply wrong. (See Answer, at p. 15.) The cases Ralphs cites involve access by non-employee unionrepresentatives. But the Supreme Court hasheld since 1945 that employees have a right under the NLRA to access a worksite during business hours to communicate about union matters, regardless of whetherthere are alternative means by which the employees could communicate with their co-workers. (See Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793; see also Lechmere, Inc. v. NLRB (1992) 502 U.S. 527, 537 [explainingthis distinction].) employers from firing employees—commonlaw employment-at-will notwithstanding—based uponthe content of the employees’ speech. (See, e.g., Lab. Code § 1102.5.) Manystatutes that regulate court jurisdiction and procedures maybeinvoked to protect particular categories of speech, such as California’s content-based evidentiary privileges (Evid. Code §§ 960 et seq.) and its anti-SLAPP law (Code Civ. Pro. § 425.16). (See Pet., at pp. 20-21.) These statutes operate no differently from the Moscone Act and Labor Code § 1138.1. The Third Appellate District’s ruling contradicts the advicethat this Court has given to other groups facing speechrestrictions imposed by private entities. In Golden Gateway, supra, 26 Cal.4th at p. 1034, the Court held that tenants do not have a free speech right to distribute information in private apartment complexes. But the Court madeclearthat “tenants may alwaysseeka legislative solution tailored to their particular concerns. Indeed,‘[t]he commonlaw and statutes are always sufficient if a state court has the desire and willto protect private rights from private infringement.”” (/d. at p. 1035 [internal citation omitted].) Civil Code § 1942.6 doesjust that—stating that a person entering onto private property for the “purpose of providing information regarding tenants’ rights”is not liable for trespass. Under the Third Appellate District’s view, however,this law is unconstitutional becauseit does notprotect all other kinds of speech— religious proselytizing, political door-knocking, commercialsolicitation— from an apartment owner’s trespass lawsuit. Ralphs calls Respondent’s warning aboutthe radical scope ofthe decision below a “screed” and accuses the ACLU, the AFL-CIO,andother groups urging review of presenting “sky is falling diatribes.” (Answer, at pp. 14, 16.) But Ralphs presents no legal argumentto support this invective. Ralphsis silent on how the Third Appellate District’s reasoning could be limited to Labor Code § 1138.1 and the Moscone Act, or why this Court should adopt a novel view of the First Amendmentthat would subject a large numberof previously uncontroversial laws tostrict scrutiny. Ralphsdoestry to argue that the Norris-LaGuardia Act and other state Little Norris-LaGuardia Acts would not be invalid under the Third Appellate District’s reasoning, but its argument falls flat. According to Ralphs, these laws are not implicated becausethis case is “about California’s preferential treatment of labor speech on private property.” (Answer,at p. 15.) But Labor Code § 1138.1, in particular, is drawn verbatim from the Norris-LaGuardia Act, and is identical to manystates’ Little Norris-LaGuardia Acts. (Compare Labor Code § 1138.1(a)(1), with 29 U.S.C. § 107.)° Like Labor Code § 1138.1, the Norris-LaGuardia Act ; See also, e.g., Haw. Rev.Stat. § 380-7; Ind. Code § 22-6-1-6; Mass. Gen. Laws 214 § 6; Minn.Stat. § 185.13; Or. Rev. Stat. § 662.080; 43 Pa. Stat. § 2061; R.I. Gen. Laws § 28-10-2; Wash. Rev. Code § 49.32.072. 10 applies to injunctions sought against speech on private property." In any case, nothing in the Third Appellate District’s reasoning would restrictits constitutional holding to statutes that limit injunctions against speech onprivate property. In fact, the cases to which the Third Appellate District analogized—Mosley and Carey—involved speech on public sidewalks. The Third Appellate District held that the First Amendmentprohibits “preferential treatment of speech concerning labor disputes over speech about other issues.” (Ralphs, 186 Cal.App.4thatp. 1095; see also id. at p. 1099.) This holding cannotbe artificially limited to statutes protecting labor speech or involving speech on private property—if Labor Code § 1138.1 and the Moscone Act are unconstitutionally content- discriminatory, then so are the many other lawsthat target particular types of speech for protection. This Court’s intervention is necessary to correct the Third Appellate District’s destabilizing view of the First Amendment. C. The Sidewalks in a Pruneyard-type Shopping Center Are Public Fora. Ralphs doesnot denythat it was unable to meet the requirements of Labor Code § 1138.1. (Ralphs, supra, 186 Cal.App.4th at p. 1089.) If this * See, e.g., La. Chemical Equipment Co., Inc. v. Laborers Int'l Union ofNorth America, Local 41 (N.D.Ind. 1987) 1987 WL 47729; Kohler Co. v. Sheet Metal Workers Int’l Ass’n (E.D. Tenn. 1979) 468 F.Supp. 1016, 1018. 11 Court were to agree that Labor Code § 1138.1 is constitutional, there would be no need to address the Third Appellate District’s holding that the sidewalks abutting retail store in a Pruneyard-type shopping centerare non-public fora under California’s free speech clause. (See Ralphs, supra, 186 Cal.App.4th at pp. 1090-91.) Ralphs’s discussion of the Third Appellate District’s Pruneyard ruling, however, is misleading. Respondent will limitits discussion here to correcting Ralphs’s several misrepresentations. First, the Third Appellate District recognized that College Square itself is a public forum under Pruneyard, with “common areas and restaurants where outdoor seating was available[.}” (Ralphs, supra, 186 Cal.App.4th at p. 1091; see also id. at p. 1090 [characterizing the Foods Co store in College Squareas “indistinguishable” from theretail stores in the Pruneyard-type shopping centers involved in Van v. Target Corp. (2007) 155 Cal.App.4th 1375].) Contrary to Ralphs’s claim, the Third Appellate District did not “distinguish[] Foods Co’s modestretail establishment from large shopping centers such as Pruneyard and Fashion Valley.” (Cf. Answer, at p. 5.) Instead, like the court in Van,it held that even within a Pruneyard-type shopping center, only “common areas”and notprivate sidewalks abutting individualretail stores are “designed and presented to the public as public meeting places,” and so such sidewalks are “not a public forum underthe liberty of speech clause of the California 12 Constitution.” (Ralphs, supra, 186 Cal.App.4th at p. 1091.) This holding—that “commonareas” in Pruneyard-type shopping centers are public fora, but the sidewalksallowingvisitors to access these areas are not public—discards Pruneyard’s central analogy: that shopping centerslike College Square are the functional equivalentof the “streets and sidewalks of the central business district.” (See Fashion Valley, supra, 42 Cal.4th at p. 858.) Ralphs lists a numberof inapposite cases, arguing that its Foods Co store is a “stand-alone”retail establishment. (Answer, at p. 8.) But of the cases cited, only Van addressed the status of sidewalksabutting retail stores in admittedly Pruneyard-type shopping centers. “[T]his Court has never questioned” Van becauseno petition for review wasfiled in that case. (Cf. Answer,at p. 8.) Second, Ralphs contendsthat the Third Appellate District “declined to follow” Lane and Schwartz-Torrance because neither of those cases “considered the First Amendmentimplications of Carey and Mosley.” | (Answer, at p. 6.) This is inaccurate. The Third Appellate District held that Lane and Schwartz-Torrance are “no longer independently viable” because they wereoriginally based on a “now-discredited” view ofthe First Amendment’s scope. (Ralphs, supra, 186 Cal.App.4th at pp. 1091-92.) Butthis ignores Fashion Valley’s recognition that “[i]t has been the law since we decided Schwartz-Torrance in 1964, and remainsthe law,that a 13 privately owned shopping center must permit peaceful picketing of businesses in shopping centers” andthat“citizens have a strengthened interest, 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.) Ralphs, like the court below,ignoresthis holding. Finally, Ralphs suggests that the Third Appellate District “allow[ed] Foods Co to obtain injunctive relief compelling a union to follow Foods Co’s reasonable time, place and mannerrules for expressiveactivity.” (Answer,at p. 1.) This is also incorrect. The Third Appellate District recognized that Ralphs’s time, place and mannerrestrictions are unreasonable. (Ralphs, supra, 186 Cal.App.4th at p. 1090.) Since College Square’s sidewalks are a public forum, Ralphs doesnot havea rightto insist that Respondentor any other speaker follow these restrictions. The Court should grant review to re-affirm Schwartz-Torrance and Lane, and to addressthe status of privately owned sidewalksthat are located in Pruneyard-type shopping centers. D. The Court Should Not Wait For the Fifth Appellate District. Ralphs urges this Court to deny review and to wait for a decision from the Fifth Appellate District in a case involving the sameparties. (Answer, at pp. 16-17.) The Court should decline this request. The Third 14 Appellate District’s decision demands review,andthere is no assurance that the Fifth Appellate District’s opinion will present the same important issues. It is unlikely that the Fifth Appellate District will issue any decision until after the time forruling on this petition runs. (See Cal. Rules of Court, rule 8.512(b)(1).) Oral argumentin that appeal has beententatively set for November 2010.” Ralphs’s counselrecently sent a letter requesting that the appellate court push the hearing back until DecemberorJanuary.° Whenit doesact, the Fifth Appellate District may well avoid ruling on the constitutionality of Labor Code § 1138.1 or the Moscone Act. For example, the Fifth Appellate might hold that regardless of the merits, Ralphs lacks standing to challenge either statute on content-discrimination grounds because Ralphs maynotassert the rights of hypothetical, non-labor speakers whoit believes are being discriminated against. (See Rubiov. Super. Ct. (1979) 24 Cal.3d 93, 103 [“‘[A] charge of unconstitutional discrimination can only beraised in a case wherethis issue is involved in the determination of the action, and then only by the person or a memberof the class of persons discriminated against.’ [Citations.]”; People v. Garcia (1999) 21 Cal.4th 1, 11-12 [defendant “lacks standing to assert the equal ° See Exhibit A to this Reply Brief; Cal. Rules of Court, rule 8.504(e)(1)(B). 6 See Exhibit B to this Reply Brief. 15 protection claims of hypothetical felons’”]; Los Angeles Police Dept., supra, 528 U.S.at p. 40 [litigant raising First Amendmentchallengethatis not based on overbreadth “maynotrely on the effect of the statute on parties not before the Court”]; see also City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43, 61 [no third-party standing unless there are genuine obstacles to the rights-holder bringing action].) The Fifth Appellate District may alsorule that the sidewalk in front of Ralphs’s Fresnostore is a Pruneyard forum andthat the company’s time, place and mannerrestrictions are unreasonable. If the Fifth Appellate District so holds, then there will be no needforit to address the constitutionality of Labor Code § 1138.1 or the Moscone Act. (Cf. Ralphs, supra, 186 Cal.App.4th at p. 1090.) Or, the Fifth Appellate District might hold that Ralphs hasfailed to present evidenceofirreparable harm necessary to support an injunction undertraditional equitable standards, regardless of whether the heightened standards in Labor Code § 1138.1 and the Moscone Act apply.’ In any of these scenarios, there would be no ruling on the constitutionality of Labor Code § 1138.1 or the Moscone Act for this Court ’ Ralphs failed to present any evidenceto the trial court of irreparable injury. The traditional equitable requirement ofirreparable injury applies in trespass actions, even though damageto the property is not an element of the cause of action. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.) 16 to review, and the Third Appellate District’s view on the issue would remain the law. Ralphs makesthe strange argumentthat if the Court grants this petition, “it will leave not only the Fifth District but also the rest of the state’s trial and appellate courts in a vacuum, without any guidance” while the Third Appellate District’s decision is under review. (Answer, at pp. 16- 17.) But the only effect of granting this petition would be that the decision below could not be cited as precedent and the State’s trial courts would not be boundbyit. (Cal. Rules of Court, rule 8.1105(e)(1).) Trial and appellate courts—including the Fifth Appellate District—would be guided by the law as it existed prior to the Third Appellate District’s decision, pending this Court’s ultimate resolution of the matter. This Court would still have the “benefit of another intermediate appellate court’s views on this subject” (see Answer,at p. 17), as the Fifth Appellate District would almost certainly issue its opinion while the Third Appellate District’s decision was before this Court. Ralphsis really arguing that the Court’s practice of de-publishing cases taken under review—andthereby preventing them from serving as precedent—isitself a basis for denying review, since such de-publication leaves lower courts “without any guidance” while this Court deliberates. This is a circular argument and would undermine the Court’s ability to manageits docket. 17 Ralphs doesnot denythat the Third Appellate District’s decision | raises important constitutional issues that demandthis Court’s involvement. The Court should reject the proposal that it nonetheless deny this petition and wait to see what happensin a separate proceeding. CONCLUSION The Court should grant this petition for review and correct the Third Appellate District’s de-stabilizing and far-reaching misapplication ofthe law. Dated: September 24, 2010 Respectfully submitted, DAVIS, COWELL & BOWE LLP 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 18 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 3,986 words, including footnotes, and excluding the cover, the signature block andthis certificate. Counsel relies on the word count of the computer program usedto preparethisbrief. Dated: September 24, 2010 DAVIS, COWELL & BOWE, LLP Paul L. More Attorneys for Defendant and Respondent United Food & Commercial Workers Local 8 EXHIBIT A IN THE ORIGINAL Court of Appealof the State of California IN AND FOR THE v4ABEOp4 BpAtePeny 2 &B ‘SThipSép ”Fifth Appellate District 4 q ? 2p . se SS 19 RALPHS GROCERY COMPANY, aap F058716 Plaintiff and Appellant, (Super, Ct. No. 09CECG00349) Vv, UNITED FOOD AND COMMERCIAL ORDER CONTINUING ORAL WORKERS UNION LOCAL8, ARGUMENT Defendant and Respondent, BY THE COURT: Oral argumentin this matter is continued from October 2010 to November 201 0, the date to be set by the Clerk of the Court. Aédhiz, P EXHIBIT B 09/20/2010 13:42 FAX 2138925454 MORRISON | FOERSTER # 7 1 002/005 555 WESTFIFTHSTREET MORRISON & FOGRSTUR LLP MORRISON FOERSTER LOS ANGELES NBW YORK, SAN FRANCISCO, LOS ANGELES, PALO ALTO, CALIFORNIA 90013-1024 SAN DIRGO, ASHINGTON. D.C, ; ont GINTA, : TELEPHONE: 213.892.5200 SACRAMENTO.WALNUTCREER PACSIMILE: 213.892 5454 TOKYO, LONDON, BNUSSBLS, WWWMORO.COM BLING, SHANGHAI, MONG KONG September 20, 2010 Whriter’s Direct Contact 213.892.5929 MVogel@mofo.com VIA FACSIMILE: (559) 445-5769 Jill Rivera, Clerk COURT OF APPEAL Fifth Appellate District 2424 Ventura Street Fresno, California 93721 Re: Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, Case No. F058716 Dear Ms. Rivera: We represent Ralphs Grocery Company, Appellant in the above- referenced appeal. My colleague, Tritia Murata, spoke to you on Friday about our scheduling problems for oral argument. I was the primary author of our appellate briefs, I am the attomey at my firm most knowledgeable about this appeal, and I will present Ralphs’ oral argument, When the Court’s on-line docket and a subsequent wmitten notice to counsel reflected a range of October dates for oral argument, both the Union’s lawyer (Elizabeth Lawrence) and I wrote to explain that we had conflicting court appearances andtravel plans on all but two of the dates mentioned in the Court’s notice. Last Friday, the on-line calendar noted a continuance to November (and what appears to be a possible November 10 datefor oral argument). 09/20/2010 13:42 FAX 2138925454 MORRISON | FOERSTER # 7 1g9003/005 MORRISON FOERSTER I am leaving for Japan on a pre-paid vacation on. October 28 and will no t return to the office until November 15, and Ms. Lawrence will be out of the country from December.16 to the end of the year. For this reaso n, Ms. Lawrence and I respectfully ask that the continuance be to early Decem ber 2010 or to any time in January 2011 — unless the Court wishes to hear oral argument on October 12 or 15, 2010, the two October dates that both counsel are available. Wevery much appreciate your consideration. mgs Miriam A. Vogel cc: Per attached proofof service (By fax and mai!) 09/20/2010 13:42 FAX 2138925454 MORRISON | FOERSTER # 7 ig 004/005 O o o O ~ a n — ~ > 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am employed with the law firm of Mormison & Foerster up, whose address is 555 West Fifth Street, Los Angeles, California 90013-1024. I am not a part y to the within cause, and I am over the age of eighteen years. I further declare that on September 20, 2010, I served a copy of: la- 1089259 LETTERDATED SEPTEMBER20, 2010 FROM MIRIAM A. VOGEL TO CLERKJILL RIVERA, COURT OF APPEAL FIFTH APPELLATE DISTRICT REQUESTING CONTINUANCE OF ORAL ARGUMENT DATE BY FACSIMILE [CodeCiv. Proc sec. 1013(e)] by sending a true copy fro m — Morrison & Foerster u's facsimile transmission telephone number 213.892.5454to the fax number(s) set forth below,or as stated on the attached service list. The transmission was reported as complete and withouterror. The transmission re port was properly issued by the transmitting facsimile machine. I am readily familiar with Morrison & Foerster tur’s practice for sending facsimile transmissions, and know thatin the ordinary courseof Morrison & Foerster t ur’s business practice the document(s) described above will be transmitted by facsim ile on the same datethatit (they) is (are) placed at Morrison & Foerster tur for transmission. BY U.S. MAIL [CodeCiv.Proc sec. 1013(a)] by placing a true copy there of enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows, for collection and mailing at Morrison & Foerster up, 555 West Fifth Street, Los Angeles, California 90013-1 024 in accordance with Morri son & Foerster tir’s ordinary business practices. I am readily familiar with Morrison & Foerster up's practice for collection and processing of correspondencefor mailing with the United States Postal Service, and know that in the ordinary course of Morrison & Foerster ur’s business practice the document(s) described abovewill be deposited with the United States Postal Service on the same date thatit (they) is (are) placed at Morrison & Foerster tp with postage thereon fully prepaid for collection and mailing. Elizabeth A. Lawrence Attorneysfor Defendant and Respondent Davis, Cowell & Bowe United Food and Commercial Workers 595 MarketStreet, Suite 1400 Union Local 8 San Francisco, CA 94105 Tel: 415-597-7200 Fax: 415-597-7201 PROOF OF SERVICE 19/20/2010 13:43 FAX 2138925454 MORRISON | FOERSTER # 7 1g 005/005 W w W N o w a N n N n + 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Antonette Benita Cordero Off ice ofthe Attorney General, Amicus Office ofthe Attorney General of Curi aefor Respondent California 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Tel: 213-897-2039 Fax: 213-897-7605 Natalie Ann Rainforth Attorn eysfor Amicus Curiae Employers William J. Emanuel Grou p,et al. Littler Mendelson, PC 2.049 Century Park East, Sth Fl. Los Angeles, CA 90067-3107 Tel: 310-553-0308 Fax: 310-553-5583 [ declare under penalty ofperjury under the la ws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California,this 20th day of September, 2010. 1a-1089259 C. BIBEAU (typed) (signature) 2 PROOF OF SERVICE PROOF OF SERVICE Re: Case Number: 8185544 Third Appellate No. C060413 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 not a party in the above-entitled action. [am employed in the County of San Francisco and my business addressis 595 MarketStreet, Suite 1400, San Francisco, California 94105. On September 24, 2010,I served the attached document described as a PETITION FOR REVIEW REPLYBRIEFonthe parties in the above- namedcase. | 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 West Fifth 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 Benita Cordero Office of the 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 Michael Rubin P. Casey Pitts Stephen P. Berzon Scott A. Kronland Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Donald C. Carroll Law Offices of Carroll & Scully, Inc. 300 MontgomeryStreet, Suite 735 San Francisco, CA 94104-1909 David A. Rosenfeld Weinberg, Roger & Rosenfeld Suite 200 1001 Marina Village Parkway Alameda, CA 94501-1091 Henry M.Willis Schwartz, Steinsapir, Dohrmann & Sommers Suite 2000 6300 Wilshire Boulevard Los Angeles, CA 90048-5268 J. David Sackman Reich, Adell & Cvitan Suite 2000 3550 Wilshire Boulevard Los Angeles, CA 90010 Bonnie Castillo, RN Director of GovernmentRelations California Nurses Association 2000 Franklin Street Oakland, CA 94612 Alan L Schlosser ACLU 39 Drumm Street San Francisco, CA 94111 Robert A. Cantore Gilbert & Sackman Suite 1200 3699 Wilshire Boulevard Los Angeles, CA 90010-2732 Jeffrey S. Wohlner Wohlner Kaplon Phillips Young & Cutler Suite 304 16501 Ventura Boulevard Encino, CA 91436 Michael R. Clancy Christina C. Bleuler California School Employees Association 2045 Lundy Avenue San Jose, CA 95131 I, Miriam I. Tom, declare underpenalty of perjury that the foregoing is true andcorrect. Executed on September 24, 2010, at San Francisco, California. Miriam I. Tom