Synopsis: Ralphs Grocery v. Victory Consultants, 17 Cal. App. 5th 245 (2017), gives some solace to private property store owners. The Silver lining of the Victory Consultants grocery store decision—petitioners and signature gatherers have no free speech rights on private property, including in store entrances, when engaging in signature gathering for election issues.
In 2012, the California Supreme Court handed unions a significant victory when it restricted the availability of injunctions for picketing by labor unions on private property. Ralphs Grocery Co. v. UFCW Local 8, 55 Cal. 4th 1083 (2012). The court reasoned that although the property around the store was private property, the Moscone Act (California Code of Civil Procedure Section 527.3) and California Labor Code Section 1138.1, limited the authority of courts to issue an injunction in a “labor dispute.” The Court found, however, that non-labor conduct was subject to trespass laws, reasoning that a private sidewalk in front of a customer entrance to a retail store in a small shopping center is not a public forum under the doctrine of Robins v. Pruneyard Shopping Center, 23 Cal 3d 899 (1979). But the Ralphs court did not directly address the issue of whether a non-labor petitioner has a constitutional free speech right to engage in petition activity on private property. The court also did not address what activity is allowed at a store entrance. In Victory Consultants, the California Court of Appeal answered both questions in favor of property owners.
In Victory Consultants, a group engaging in petition gathering activities in front of two Ralphs grocery store entrances were informed that their activity constituted unlawful trespass. After asking the petitioner to leave and failing to get law enforcement to remove the petitioner, Ralphs pursued a case for trespass and sought injunctive relief. Ralphs named the individual on the property as well as the petition gathering company he allegedly worked for as Defendants. The petition gathering company claimed the actual petitioner was not their employee but rather, an independent contractor, and therefore the company should not be liable for his alleged trespass. Before the hearing on the injunction, the company filed an anti-Slapp motion arguing that the complaint arose from acts protected by the United States and California Constitutions and the store was not likely to prevail on the merits. The California Constitution provides that “every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article 1, Section 2 Cal Const. The store argued that the free speech protections were not available because the conduct took place on private property. The trial court granted the anti-Slapp motion, finding that none of the actual petitioners were agents or employees of the company.
The Court of Appeal, relying on Lloyd v Tanner, 407 U.S. 551 (1972), held that free speech rights do not apply to private forums such as a retail store if it is not a Pruneyard public forum. The court held, “where the complaint includes allegations that the challenged conduct occurred on private property which would render the conduct unprotected for anti-Slapp purposes we must consider those allegations as part of our first prong analysis.” The court quoting Lloyd noted that private property owners have a right to exclude persons from their property if there are no common areas at the site that allow people to congregate in a leisurely fashion. The court found:
- (1) Areas immediately adjacent to entrances of individual stores typically lack seating and are not designed for relaxation;
- (2) These areas exist solely to let people in the store and to exit the store; and
- (3) Soliciting signatures for petitions poses a significantly greater risk of interfering with normal business operations when those activities are conducted near the entrances and exits of stores.
Therefore, within a shopping mall or center, the individual store entrances, at least as typically configured, are not public forums under Pruneyard and therefore are off limits for petition gathering activities.
Private property rights seemingly trump the right of free speech in California when it comes to non-Pruneyard activities even when those activities involve core political rights. In particular, the free speech right is trumped by private property rights.
Previously the courts concentrated on the size of the retail mall, but the Victory Consultants case concentrated on the exact location of the activity as opposed to the size of the mall, finding that the store entrance is private property and not subject to trespass. That of course leaves open the areas away from the store entrance for another day.
The special rights previously bestowed on labor activities by the California Supreme Court in prior Ralphs cases become more suspect after Victory. In effect, Victory Consultants makes clear that petition gathering activity on store entrances is off limits because store entrances are not open to the public for purposes of congregating.