Filed 11/6/17 (mod); pub. order 11/15/17 follows unmodified opinion (attached) reposted 4/6/18 to include mod. order.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RALPHS GROCERY COMPANY et al., D070804
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2015-00031668- CU-NP-CTL) VICTORY CONSULTANTS, INC. et al., ORDER MODIFYING OPINION Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed on October 24, 2017 is modified as follows:
On page 17, first paragraph, next to last sentence, the word "Appellants" is
replaced with the word "Respondents." It should read as follows:
"Respondents rely on Pruneyard to claim the Lemon Grove and San Diego stores
are public forums."
There is no change in judgment.
HUFFMAN, Acting P. J. Filed 10/24/17 (unmodified version)
v. (Super. Ct. No. 37-2015-00031668- CU-NP-CTL) VICTORY CONSULTANTS, INC. et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Reversed; remanded with directions.
Davis Wright Tremaine, Jacob M. Harper and Michael T. Baldock for Plaintiffs
and Appellants.
Andrew Rauch, Andrew K. Rauch and Elizabeth MacKinnon for Defendants and
Respondents.
Ralphs Grocery Company (Ralphs), Ralphs Grocery Company dba Food-4-Less
(Food-4-Less), and Ralphs Grocery Company dba Foods Co. (Ralphs, Food-4-Less, and
Foods Co. collectively Appellants) appeal an order striking their complaint against Victory Consultants, Inc. (Victory) and Jerry Mailhot (Victory and Mailhot together
Respondents) under Code of Civil Procedure1 section 425.16 (the anti-SLAPP law).
Appellants contend the superior court erred in determining that their complaint, which
alleges a cause of action for trespass, arose out of activity protected by the anti-SLAPP
law, and by concluding they failed to demonstrate a probability of succeeding on the
merits of that cause of action.
We agree with Appellants. Respondents have not shown Appellants' cause of
action for trespass arises out of protected activity. The acts constituting trespass are not
protected activity. Although Respondents argue that Appellants are suing them based
upon petitioning activity, which would typically be protected, such activity is occurring
on private property. Respondents have provided no persuasive argument that their
activity occurring on such private property is protected. Additionally, even if we were to
reach the second question under an anti-SLAPP analysis, we would conclude Appellants
carried their minimal burden of showing a probability of succeeding on the merits. We
therefore reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background facts in this anti-SLAPP context from the complaint's
allegations and the evidence proffered in connection with the motion.
Ralphs operates hundreds of "Ralphs" and "Food-4-Less" branded grocery stores
throughout California. Two such stores, one located at 7420 Broadway in Lemon Grove
1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2 (Lemon Grove store) and the other located at 312 Euclid Avenue in San Diego (San
Diego store), feature prominently in the instant action. These two stores have the same
general physical structure. The individual stores have entrances providing customer
access to the stores from a parking area. The same access point is used for egress and
ingress. A sidewalk or apron is situated between the store access doors and a private
driving lane, which runs between the store and the parking lot. On each side of a store's
access doors exist two columns that rise from the sidewalk/aprons and leave about three
feet of sidewalk space between the columns and curb. The curb and private driving lane
area in front of the access doors is a designated fire lane.
The subject stores' purpose, like all stores owed by Ralphs, is to sell food products
to customers. To that end, the stores house aisles of food and food-related goods as well
as deli counters, cash registers, and other accoutrements serving customers. They do not
offer amenities like plazas, walkways, central courtyards, or other gathering areas. Nor
do they have attractions like theatres or other entertainment venues. The stores do not
exist to provide a location for friends to meet or congregate.
The Lemon Grove and San Diego stores have two sets of doors, both for entry and
exit, that lead to and are adjoining the parking lot. The sidewalk and apron runs between
the store and a private driving lane abutting the parking lot. The curb and street area in
front of the entrance and exit doors is designated a fire lane. These areas are all designed
around the concept of helping customers enter and exit quickly and safely to buy food
products.
3 The sidewalk and apron area in front of both the Lemon Grove and San Diego
stores is not public. Appellants have exclusive control over those areas as well as the
entrances and exits to the stores and the store premises.
Respondents operate petition signature gathering companies in Southern
California. Respondents pay individuals to obtain signatures for various petitions and
initiatives. Individuals who Appellants allege work for Respondents arrived at the
Lemon Grove and San Diego stores to obtain petition signatures. "On a typical day,
[these individuals set] up a table in the sidewalk/apron area, place belongings on that
table, and rove around the sidewalk/apron area and parking lot to approach grocery store
customers entering and exiting the store. They set up in the area directly between the
store and fire lane." While soliciting at Appellants' stores, these individuals have
disrupted store business by setting up tables directly in front of the store or private
sidewalk areas, impeding fire lanes, obstructing customers' ingress and egress from the
stores, standing in the way of fire lanes, following store customers into the parking lot,
and harassing customers.
After receiving customers' complaints about Respondents' activities, Appellants'
employees asked Respondents to leave the area. Respondents refused and asserted they
were exercising their constitutional rights. Appellants' employees called law enforcement
to assist, but law enforcement declined to remove Respondents from the stores' respective
premises.
4 Ultimately, Appellants filed a lawsuit against Respondents, alleging causes of
action for trespass and injunction.2 Appellants claim to have lost substantial good will
because of Respondents' actions.
Appellants also submitted an ex parte application for a temporary restraining order
and an order to show cause regarding a preliminary injunction. Appellants submitted the
declarations of John Kamisizian, store director of the Lemon Grove store, and Robert
Nightingale, front end manager of the San Diego store, wherein both men declared they
witnessed individuals gathering signatures in front of their respective stores who claimed
to be working for Victory and Mailhot. At the ex parte hearing, Respondents claimed
there was insufficient evidence to show they hired the individuals working at the Lemon
Grove and San Diego stores. In addition, they asserted even if it could be shown that the
individuals were working for Respondents, the individuals were independent contractors,
and Respondents could not control their actions. In response, Appellants submitted
supplemental briefing addressing agency and provided the declaration of Frank Mendez
and supplemental declarations from Kamisizian and Nightingale.
Mendez is a private investigator hired by Appellants to "identify a group sending
petition solicitors" to stores owned by Appellants, including the Lemon Grove store. He
communicated with an individual gathering signatures in front of the Lemon Grove store.
Mendez took pictures of the man (which were attached to Mendez's declaration), who
2 "Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) 5 identified himself as Calvin Pierce. Pierce indicated that he worked for Victory and
Mailhot. He provided Mendez with a business card from Victory as well as a small piece
of paper that included Mailhot's name and contact information. The business card and
paper with Mailhot's contact information were attached as exhibits to Mendez's
declaration.
The supplemental declarations of Kamisizian and Nightingale identified Pierce
from photographs taken by Mendez as depicting the individual they had seen in front of
the Lemon Grove store (Kamisizian) and the San Diego store (Nightingale) collecting
signatures on petitions.
In their supplemental briefing, Appellants addressed the possibility that the court
could believe that additional evidence would be necessary to establish agency:
"If, however, the Court believes additional evidence that is solely within the possession of these groups—such as the contracts themselves or testimony from representatives of Victory Consultants or Mailhot—is necessary, Ralphs respectfully requests that the Court enter the temporary restraining order (given the prima facie evidence supports Ralphs's right to protect its premises), set the OSC re preliminary injunction, and order expedited limited discovery into the relationship between Victory Consultants and Mailhot (on the one hand) and its solicitors (on the other)."
Respondents submitted a memorandum of points and authorities in opposition to
the request for temporary restraining order. Among other arguments, Respondents
argued the evidence allegedly establishing that their agents solicited customers for
signatures at Appellants' stores was inadmissible hearsay. Respondents offered the
declarations of Ron Tomczak, Victory's president, and Mailhot. Tomczak declared that
Victory has no employees, and its primary method of conducting business is to enter into
6 independent contractor agreements with individuals. Tomczak emphasized that he does
not direct Victory's independent contractors where to gather signatures and has no control
over the methods, details, and means by which the independent contractors conduct their
signature gathering.
Mailhot, who is the sole proprietor of California Petitions, declared that his
business and business model is almost identical to Victory's, including entering into
independent contractor agreements with signature gatherers.
The superior court ultimately granted a temporary restraining order, prohibiting
Respondents from using the premises of the Lemon Grove or San Diego stores, including
the sidewalk/apron areas as well as parking lots owned by Appellants, for their
petitioning, soliciting, and expressive activity. The temporary restraining order also set
an order to show cause hearing why an injunction should not issue.
Before that hearing, Respondents filed an anti-SLAPP motion, arguing the
complaint arose from acts protected under the First Amendment of the United States
Constitution as well as the California Constitution, and Appellants were not likely to
prevail on the merits. In support of their motion, Respondents primarily relied on the
same evidence it submitted to support its opposition to Appellants' application for a
temporary restraining order.
Appellants opposed the motion, asserting (1) the anti-SLAPP statute was not
applicable because the individuals' activity on the private sidewalk and apron areas was
not protected speech under the United States and California Constitutions; and, in the
alternative, (2) Appellants demonstrated a prima facie case of trespass. Like
7 Respondents, it appears that Appellants also relied on the evidence they submitted in
support of their application for a temporary restraining order.
After considering the motion and opposition as well as the evidence submitted in
support of both and entertaining oral argument, the court granted Respondents' anti-
SLAPP motion. The court found that Appellants did not establish a probability of
prevailing on the merits of their claim. Specifically, the court determined that Appellants
"offered no admissible evidence that any individual purportedly collecting signatures was
an agent or employee of the" Respondents. In making its determination, the court, among
other evidentiary rulings that are not challenged here, sustained Respondents' objections
to the Mendez declaration.
Appellants timely appealed.
DISCUSSION
I
ANTI-SLAPP LAW AND STANDARD OF REVIEW
"A SLAPP suit is 'a meritless lawsuit "filed primarily to chill the defendant's
exercise of First Amendment rights." ' [Citations.] California's anti-SLAPP statute
allows a defendant to move to dismiss 'certain unmeritorious claims that are brought to
thwart constitutionally protected speech or petitioning activity.' " (Medical Marijuana,
Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613.) Per the anti-SLAPP statute: "A
cause of action against a person arising from any act of that person in furtherance of the
person's right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a special
8 motion to strike, unless the court determines that the plaintiff has established that there is
a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
A two-step analysis is required when the superior court is requested to rule on a
special motion to strike under the anti-SLAPP statutory framework. (Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Recently, our high court summarized
the showings and findings required by section 425.16, subdivision (b):
"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
We review rulings on anti-SLAPP motions de novo. (Freeman v. Schack (2007)
154 Cal.App.4th 719, 727.) We also consider the pleadings, and supporting and opposing
affidavits, " ' "accept[ing] as true the evidence favorable to the plaintiff [citation] and
evaluat[ing] the defendant's evidence only to determine if it has defeated that submitted
by the plaintiff as a matter of law." ' " (Ibid.)
9 II
EVIDENTIARY ISSUES
To determine the universe of evidence we may properly consider on our review,
we address Appellants' contention that the trial court erred by excluding some of its
evidence offered in opposition to Respondents' anti-SLAPP motion. Specifically, the
court sustained Respondents' objections to the Mendez declaration. Respondents
objected to paragraphs four, eight, and nine of Mendez's declaration because those
paragraphs constituted improper opinion from a lay witness (Evid. Code, § 800); were
irrelevant (Evid. Code, §§ 210, 350); and consisted of inadmissible hearsay (Evid. Code,
§ 1200). Although the court sustained these objections, it did not indicate on what
grounds it did so.
The only Mendez declaration in the record was submitted in support of Appellants'
ex parte application for a temporary restraining order. The three paragraphs of Mendez's
declaration that Respondents objected to were as follows:
"4. After taking photos of the individual from a distance, I approached him to inquire about how to get involved in soliciting petitions. The individual stated that he is a 'petition gatherer' and stated that he was attempting to secure Food-4-Less customer signatures on several different petitions, including reducing the size of classrooms and another issue dealing with blank checks. I asked the individual what company he 'works for,' and the individual stated that he 'works for Victory Consultants, Inc.' I thanked him for the information and asked his name, which he told me was Calvin Pierce."
"8. First, the solicitor said he was working for Victory Consultants, Inc., which hired him to collect signatures for the (1) Reducing Class Sizes and (2) No Blank Check for Government initiatives. I asked how much Victory Consultants paid him to gather signatures at
10 Food-4-Less stores, and he said he gets $1.50 per signature. He also pulled out from his pocket one of the several business cards for Victory Consultants that he had in his pocket, which Victory Consultants gave to solicitors if they encountered individuals like me expressing an interest in collecting signatures. The Victory Consultants business card included a company emblem; the statements 'Initiatives/Signature Gathering' and 'Political Management'; an email address, website address, physical address, and phone numbers; and the names of Victory Consultants' principals, 'Ron & Jane Tomczak.' A true and correct copy of the Victory Consultants business card is included in Exhibit C."
"9. Second, the individual stated he was also working for Jerry Mailhot, who hired him to gather signatures at Food-4-Less for petitions relating to (3) Mandating Condoms for the Adult Film Industry; and (4) Lowering the Cost of Prescription Drugs, noted above. When I asked how much Mr. Mailhot pays to solicit signatures, the solicitor told me $.75 per signature. I also asked if he had a business card for Mr. Mailhot, and the solicitor pulled a small piece of paper stating 'Circulate Petitions' and listing Mr. Mailhot's name and phone number, along with another phone number for 'updates.' A true and correct copy of this piece of paper is included in Exhibit C."
We review the superior court's evidentiary rulings for abuse of discretion. (Public
Employees' Retirement System v. Moody's Investors Service, Inc. (2014) 226 Cal.App.4th
643, 683.) Therefore, we will not overturn such a ruling on appeal "unless 'the trial court
exceeded the bounds of reason, all of the circumstances before it being considered.' "
(Ibid.)
Respondents argue the court properly excluded the evidence on hearsay grounds.
We agree.
In Mendez's declaration, he discusses what Pierce told him. Appellants' are using
Pierce's statements (e.g., he works for Victory and Mailhot) to try to establish he is
Respondents' agent. As such, Pierce's statements are out-of-court statements offered for
11 the truth of the matter asserted. (See Evid. Code, §1200, subd. (a).) Appellants,
however, argue an exception exists to overcome the evidence's exclusion. Specifically,
they assert Pierce's statements are admissible as declarations against interest. (See Evid.
Code, § 1230.) We are not persuaded.
Evidence Code section 1230 establishes the declaration against interest exception
and makes a hearsay statement admissible when (1) the declarant is unavailable; (2) the
statement was against the declarant's interest when made; and (3) the statement was
sufficiently reliable to warrant admission despite its hearsay character. (Clark v. Optical
Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 170.) Appellants, however, do not
show Pierce was unavailable to testify (or provide a declaration) in this matter. Thus,
there is no exception to the hearsay in the subject paragraphs of Mendez's declaration.
However, there are portions of paragraphs four, eight, and nine that do not involve
Mendez repeating what Pierce told him. For example, in paragraph eight, Mendez
indicates that Pierce handed him a Victory business card, which was one among many
Victory cards Pierce possessed. Respondents do not argue that the handing of the
business card is a hearsay statement. Further, Mendez attached a copy of the Victory
business card to his declaration. Respondents did not specifically object to this business
card. It does not appear that the superior court excluded this business card.
Similarly, in paragraph nine of his declaration, Mendez indicated that Pierce
handed Mendez a piece of paper stating "Circulate Petitions" and listing Mr. Mailhot's
name and phone number, along with another phone number for "updates." Respondents
do not argue that the handing of this piece of paper from Pierce to Mendez is a hearsay
12 statement. Moreover, a copy of the piece of paper is attached to Mendez's declaration,
and there is no indication in the record that Respondents specifically objected to the
admission of the paper with Mailhot's information. Also, it does not appear the superior
court excluded this evidence.
Against this backdrop, for purposes of our analysis here, we will not consider
paragraphs four, eight, and nine of Mendez's declaration to the extent Mendez is
repeating what Pierce told him. However, the fact that Pierce handed Mendez a business
card from Victory (which were one of many cards Pierce had) as well as the paper with
Mailhot's information is properly before us as is the card and paper themselves.
III
WHETHER THE LAWSUIT FALLS WITHIN THE SCOPE OF THE STATUTE
To make a showing under the first prong, Respondents need only establish a prima
facie case that their alleged actions fell into one of the categories listed in section 425.16,
subdivision (e). (Flately v. Maura (2006) 39 Cal.4th 299, 314.) They may do so by
identifying the allegations of protected activity in the complaint and the claims for relief
supported by them. (See Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) As such, the
analysis of the first prong focuses on the allegations of the complaint.
Section 425.16, subdivision (e), clarifies what speech constitutes an " 'act in
furtherance of a person's right of petition or free speech under the United States or
California Constitution in connection with a public issue.' " Such speech includes: "(1)
any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written or oral
13 statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest." (§ 425.16,
subd. (e).)
Here, the superior court concluded that Appellants' causes of action arose from
acts of the right of petition or free speech under the United States and California
Constitutions in connection with a public issue as defined in section 425.16, subdivision
(e)(3) and (4.) Appellants argue the superior court erred. They maintain their lawsuit
was not aimed to stifle speech or petitioning activity, but instead, to protect their private
property from unauthorized disruption. To this end, Appellants insist the conduct at issue
is trespass not signature gathering.
Appellants' frame their first cause of action as centering on the signature gatherer's
"disruptive activity" not the petitioning activity itself. In the operative complaint,
Appellants allege the activity forming the basis of their trespass claim as follows: setting
up tables directly in front of the stores or private sidewalk areas; impeding fire lanes;
obstructing customers' ingress and egress into the stores; standing in the way of fire
lanes; following or chasing customers and scaring them; and harassing customers.
Clearly, none of this activity would fall under the umbrella of anti-SLAPP protection.
14 Thus, we disregard this unprotected activity for purposes of our anti-SLAPP analysis.
(See Baral v. Schnitt, supra, 1 Cal.5th at p. 396.)
That said, Respondents argue Appellants' complaint is aimed at protected activity,
namely "soliciting." We note that the operative complaint does allege that Respondents
and/or their agents are engaging in solicitation. Here, the solicitation appears to be the
gathering of signatures on various petitions. However, Appellants also allege that the
solicitation is occurring on their private property where Respondents do not have the
right to engage in any such activity. Therefore, according to Appellants, the allegations
in the operative complaint do not target any protected activity because the solicitation
occurred on private property and is not protected under the First and Fourteenth
Amendments of the United States Constitution. (See Lloyd Corp. v. Tanner (1972) 407
U.S. 551, 567 [concluding "the First and Fourteenth Amendments safeguard the rights of
free speech and assembly by limitations on state action, not on action by the owner of
private property"; italics omitted].) Appellants further assert the gathering of signatures
on their premises is not protected under California law because "a private sidewalk in
front of a customer entrance to a retail store in a shopping center is not a public forum for
purposes of expressive activity." (Ralphs Grocery Co. v. United Food & Commercial
Workers Union Local 8 (2012) 55 Cal.4th 1083, 1104 (Ralphs Grocery); see Trader Joe's
Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425, 427, 437 (Trader Joe's)
[applying the balancing test set forth in Robins v. Pruneyard Shopping Center (1979) 23
Cal.3d 899 (Pruneyard)].)
15 In the instant matter, the superior court eschewed any application of the Pruneyard
balancing test, finding the determination of that issue more appropriate for the second
prong of the anti-SLAPP inquiry, namely whether Appellants can establish a probability
of prevailing. We disagree with this approach. Instead, we believe any analysis under
Pruneyard, supra, 23 Cal.3d 899 must occur under the first prong of the anti-SLAPP
analysis because the critical inquiry is whether protected activity is challenged in the
complaint. (See e.g., Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1252
[comments on boxer's social media pages and comments during broadcast were made in a
public forum for purposes of the first prong]; Cabrera v. Alam (2011) 197 Cal.App.4th
1077, 1087 [homeowner's association board meetings constitute a public forum for
purposes of the first prong].) In other words, for purpose of an anti-SLAPP motion, we
must determine if the defendant has established a prima facie case that their alleged
actions fell into one of the categories listed in section 425.16, subdivision (e). (Flately v.
Maura, supra, 39 Cal.4th at p. 314.) 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. If we do not, we cannot determine whether that the cause of action
arises out of protected activity.
Here, Appellants have alleged that any solicitation that occurred in front of the two
subject stores occurred on private property, and thus, is not protected activity. It is
Respondents' burden to show that Appellants are incorrect and that the complaint is
directed at protected activity. They have not carried their burden.
16 Generally, landowners and tenants have a right to exclude persons from
trespassing on private property; the right to exclude persons is a fundamental aspect of
private property ownership. (See Loretto v. Teleprompter Manhattan CATV Corp. (1982)
458 U.S. 419, 435.) "The right to exclude persons exercising First Amendment rights,
however, is not absolute. Our Supreme Court held in [Pruneyard,] supra, 23 Cal.3d 899,
that when private property is generally open to the public and functions as the equivalent
of a traditional public forum, then the California Constitution protected speech,
reasonably exercised, on the property, even though the property was privately owned."
(Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390.) Appellants rely on Pruneyard to
claim the Lemon Grove and San Diego stores are public forums. We disagree.
The Supreme Court's reasoning in Pruneyard "determines the scope of that
decision's application. That reasoning is most apt in regard to shopping centers' common
areas, which generally have seating and other amenities producing a congenial
environment that encourages passing shoppers to stop and linger and to leisurely
congregate for purposes of relaxation and conversation. By contrast, areas immediately
adjacent to the entrances of individual stores typically lack seating and are not designed
to promote relaxation and socializing. Instead, those areas serve utilitarian purposes of
facilitating customers' entrance to and exit from the stores and also, from the stores'
perspective, advertising the goods and services available within. Soliciting signatures on
initiative petitions, distributing handbills, and similar expressive activities pose a
significantly greater risk of interfering with normal business operations when those
activities are conducted in close proximity to the entrances and exits of individual stores
17 rather than in the less heavily trafficked and more congenial common areas. Therefore,
within a shopping center or mall, the areas outside individual stores' customer entrances
and exits, at least as typically configured and furnished, are not public forums under this
court's decision in Pruneyard, supra, 23 Cal.3d 899." (Ralphs Grocery, supra, 55 Cal.4th
at p. 1092.)
"[T]o be a public forum under our state Constitution's liberty of speech provision,
an area within a shopping center must be designed and furnished in a way that induces
shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not
merely to walk to or from a parking area, or to walk from one store to another, or to view
a store's merchandise and advertising displays." (Ralphs Grocery, supra, 55 Cal.4th at
p. 1093.)
As pointed out in Trader Joe's, supra, 73 Cal.App.4th 425, "Pruneyard instructs
us to balance the competing interests of the property owner and of the society with
respect to the particular property or type of property at issue to determine whether there is
a state constitutional right to engage in the challenged activity." (Trader Joe's, supra, at
p. 433.) Pruneyard, supra, 23 Cal.3d 899 did not hold that free speech and petitioning
activity can be exercised only at large shopping centers or that such activities can be
exercised on any property except for individual residences and modest retail
establishments. (Trader Joe's, supra, at p. 433.)
Respondents point to no allegations in the operative complaint that support their
claim that the front of the subject stores should be considered a public forum for purposes
of our analysis under Pruneyard, supra, 23 Cal.3d 899. Further, Respondents provided
18 no evidence regarding the Lemon Grove and San Diego stores that supports their
argument that they were engaging in protected activity. For example, Respondents
emphasize various in store campaigns Appellants undertook. These campaigns that
allegedly occurred within the store have no bearing on the public or private nature of the
sidewalk in front of the subject stores. Respondents also argue that Appellants allow
certain solicitation to occur on their properties. To this end, Respondents rely on a
"statement on the official website of Ralphs" that shows a picture of a child making a
donation at a metal tripod holding a red kettle at the entrance of a Ralphs store. The
website statement indicates that donations are made at the "storefront." However, there is
no evidence in the record that the Salvation Army has solicited donations in front of the
Lemon Grove or San Diego stores. Thus, the statement from Ralphs' website does not
offer any support for Respondents' argument under Pruneyard. In addition, Respondents
discuss the physical characteristics of stores other than the Lemon Grove or San Diego
stores. As the trespass claims here only concern those two stores, how other stores are
constructed or maintained is not of the moment.
In short, Respondents have not carried their burden of establishing that the
petitioning activity engaged in at the front of the two subject stores was protected for
purposes of the first prong of our anti-SLAPP analysis. Moreover, Appellants provided
undisputed evidence that the Lemon Grove store is in a retail shop development with a
purpose to sell food products to customers. The Lemon Grove store is designed to
provide customers easy access in and out of the store. To this end, the Lemon Grove
store has one set of entrance doors and one set of exit doors. On each side of these doors
19 stand two columns that rise from the sidewalk/apron areas. The curb and street area in
front of the doors is designated a fire lane. The store does not offer amenities like plazas,
walkways or central courtyards and other gathering areas or attractions like theaters or
entertainment amenities. The invitation to the public to use the Lemon Grove store does
not extend to people to meet friends, be entertained, or congregate for any purpose other
than shopping. Also, Ralphs has exclusive control over the Lemon Grove store structure,
its entrance and exit ways, and the surrounding sidewalk/apron areas.
Appellants also offered nearly identical evidence about the San Diego store.
Despite Respondents' claim to the contrary, the allegations of the operative
complaint and the evidence shows that Appellants open their Lemon Grove and San
Diego stores to the public so the public can buy goods. They do not offer their property
for any other use. Thus, in contrast to the multipurpose shopping centers like the one
discussed in Pruneyard, supra, 23 Cal.3d 899, the Lemon Grove and San Diego stores do
not have a public character that would support a finding that Respondents were engaging
in protected activity for purposes of their anti-SLAPP motion. (See Trader Joe's, supra,
73 Cal.App.4th at p. 434.)
20 IV
PROBABILITY OF SUCCESS ON THE MERITS
Because we conclude Appellants have not carried their burden as to the first
prong, we need not address the parties' arguments as to the second prong. Nevertheless,
even if we considered the second prong, we would find that Appellants satisfied their
minimal burden of showing a probability of prevailing on their trespass claim.
The second prong of the statute deals with whether the plaintiff has "demonstrated
a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88
(Navellier).) Under section 425.16, subdivision (b)(2), the superior court, in making
these determinations, considers "the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based." (Ibid.) For purposes of an
anti-SLAPP motion, "[t]he court considers the pleadings and evidence submitted by both
sides, but does not weigh credibility or compare the weight of the evidence. Rather, the
court's responsibility is to accept as true the evidence favorable to the plaintiff." (HMS
Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) A plaintiff "need
only establish that his or her claim has 'minimal merit' [citation] to avoid being stricken
as a SLAPP." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) In
this sense, the anti-SLAPP statute operates like a "motion for summary judgment in
'reverse.' " (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719; see
Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062 ["a standard 'similar
to that employed in determining nonsuit, directed verdict or summary judgment
motions' "]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 [same]; Yu v. Signet
21 Bank/Virginia (2002) 103 Cal.App.4th 298, 317 ["plaintiff's burden as to the second
prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary
judgment"].) With these descriptions in mind, we will not strike a cause of action under
the anti-SLAPP statute unless it lacks even minimal merit. (Navellier, supra, at p. 89.)
In the instant action, Appellants have sued Respondents for trespass. "Trespass is
an unlawful interference with possession of property." (Staples v. Hoefke (1987) 189
Cal.App.3d 1397, 1406.) The elements of trespass are: (1) the plaintiff's ownership or
control of the property; (2) the defendant's intentional, reckless, or negligent entry onto
the property; (3) lack of permission for the entry or acts in excess of permission;
(4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.
(See CACI No. 2000.)
Here, there is no dispute that Appellants have provided sufficient evidence to
establish a prima facie case that the individual collecting signatures on the store premises
was trespassing. In their opening brief, Appellants lay out the evidence of the elements
of trespass and Respondents do not refute any of that evidence in the respondents' brief.
Instead, they reiterate that there is no evidence that the individual gathering signatures
was their agent.
In granting Respondents' anti-SLAPP motion, the superior court agreed with
Respondents. Specifically, the superior court found Appellants did not meet their burden
"because they offered no admissible evidence that any individual purportedly collecting
signatures was an agent or employee of [Respondents]." The court further emphasized,
"as [Respondents] explain in their declarations, they have no agents that solicit signatures
22 on petitions. They also assert that neither they nor any of their employees have ever
solicited signatures for petitions on any property owned by [Appellants]."
In their brief, Respondents again emphasize that the signature gatherer at the
Lemon Grove and San Diego stores was not their agent. To this end, Respondents assert
that the subject signature gatherer was their independent contractor. However, this
assertion does not establish the signature gatherer was not also Respondents' agent as a
matter of law. " 'Agency and independent contractorship are not necessarily mutually
exclusive legal categories as independent contractor and servant or employee are. In
other words, an agent may also be an independent contractor.' " (Jackson v. AEG Live,
LLC (2015) 233 Cal.App.4th 1156, 1184; italics omitted.)
"An agent is one who represents another, called the principal, in dealings with
third persons. Such representation is called agency." (Civ. Code, § 2295.) "An agent for
a particular act or transaction is called a special agent. All others are general agents."
(Civ. Code, § 2297.) "An agency relationship 'may be implied based on conduct and
circumstances.' " (Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th
1179, 1189.)
"[W]hether an agency relationship has been created or exists is determined by the
relation of the parties as they in fact exist by agreement or acts [citation], and the primary
right of control is particularly persuasive. [Citations.] Other factors may be considered
to determine if an independent contractor is acting as an agent, including: whether the
'principal' and 'agent' are engaged in distinct occupations; the skill required to perform the
'agent's' work; whether the 'principal' or 'agent' supplies the workplace and tools; the
23 length of time for completion; whether the work is part of the 'principal's' regular
business; and whether the parties intended to create an agent/principal relationship."
(APSB Bancorp v. Thornton Grant (1994) 26 Cal.App.4th 926, 932-933.)
Appellants contend the superior court erred in finding they had not submitted
evidence establishing a prima facie case of agency. In support of their position,
Appellants point to the following evidence. In his declaration, Tomczak states that
Victory contracts with various organizations to circulate petitions and gather signatures
of registered voters to qualify the petitions for placement of ballots. To carry out its
objectives, Victory in turn enters into independent contractor agreements with individuals
who gather signatures and addresses of registered voters on the various petitions.
Attached to Tomczak's declaration was an authenticated copy of a document
entitled, "Contract for Services." Tomczak admitted that this document is a "standard
form of independent contractor's agreement that is used by Victory." That agreement
states that no employee-employer relationship exists between the individual signing the
agreement and Victory and that neither party is to be considered the agent of the other
party. However, the agreement states that the independent contractor will provide
Victory with "processed signatures . . . of persons registered to vote in counties, cities,
districts or other areas so designated by [Victory]."
Per the agreement, Victory agrees to pay the contractor a sum per signature with
deductions for signatures that "are invalid for reasons other than non-registered voters."
The agreement also provides that Victory will only pay a contractor for signatures with
all information boxes filled in correctly and legibly by the signer of the petition, for
24 petitions with declarations filled in correctly and legibly by the circulator of the petitions,
and for valid signatures submitted before the "shutdown deadline."
The agreement also sets forth the "Method and Hour of Performing Services" as
follows:
"Contractor agrees to perform the above-described services on the Contractor's premises during the hours which the Contractor determines and understands that he/she is an independent contractor, with no special training or regular hours and will furnish all his/her materials, determine the method, details and means of performing the above-described services. It is presumed, however, that the Contractor will conform to the generally accepted business practices of the region or locale where conducting business, including but not limited to the filing of Fictitious Business Statement when applicable, the holding of a business license and the compliance with all federal, state, and local laws, regulations and rules."
In addition, the contractor warrants that "all work done under" the agreement will
comply with California Election Code sections 29720 through 297953 and Government
Code sections 84303 and 84221. Also, the agreement contains an indemnity provision
that requires the contractor to indemnify and hold harmless Victory "from any and all
claims, demands, costs or liabilities arising from or connected with the services provided
in this Agreement due to negligent acts, errors or omissions or for any acts or omissions
which are due to willful misconduct on the part of the Contractor . . . ."
In summary, the independent contractor agreement used by Victory states Victory
would pay the individual contractor per valid signature. Victory informs the independent
contractor what type of signature is needed (e.g., voter in San Diego County or City of
3 The Election Code sections referred to in the agreement were repealed in 1994. 25 San Diego) and there is a deadline by which the signatures must be obtained and
provided to Victory. Victory presumes the individual contractor is going to comply with
applicable laws. And, in the event Victory faces any liability for the acts of the
independent contractor, the independent contractor must indemnify Victory. 4
Appellants additionally emphasize that they submitted evidence to show the
individuals at the two stores are agents of Respondents. For example, Nightingale's
declaration dated September 17, 2015 stated that individuals identifying themselves as
working for Victory and/or Mailhot had been soliciting signatures in front of the San
Diego store. In a subsequent declaration, Nightingale authenticated a picture of one of
the individuals (Pierce) gathering signatures in front of the San Diego store.5
In addition, Kamisizian offered a similar declaration regarding the individual
soliciting signatures in front of the Lemon Grove store and provided a supplemental
declaration authenticating a picture of the individual (Pierce) as well.6
Finally, there is evidence that Pierce handed Mendez a Victory business card,
which was one of many Pierce possessed. And Pierce also handed Mendez a piece of
paper with Mailhot's contact information.
4 Mailhot submitted a declaration wherein he stated that he conducts business in a similar manner to Victory.
5 Respondents objected to this portion of Nightingale's supplemental declaration, but the court overruled the objection.
6 Respondents objected to this portion of Kamisizian's supplemental declaration, but the court overruled the objection. 26 Keeping in mind that Appellants need only establish their trespass claim has
"minimal merit" (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291) and
it is our "responsibility . . . to accept as true the evidence favorable to the plaintiff" (HMS
Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212), we determine that
Appellants have done enough to demonstrate a probability of prevailing on the trespass
claim. For that claim here, Appellants have offered sufficient evidence to make a prima
facie case of agency.
Respondents concede they presented evidence that Pierce is their independent
contractor. Victory's independent contractor agreement shows that Victory provides its
independent contractors with petitions, the types of signatures it needs on each petition,
and a deadline by which petitions are due. It requires the independent contractor to
gather valid signatures satisfying the criteria provided by Victory, and Victory will only
pay the independent contractor for signatures that comply with its criteria. Further, the
agreement shows that Victory expects the independent contractor to comply with federal
and California law, including portions of the California Election and Government Codes.
Mailhot indicated he conducted business very similarly to Victory's methods.
In addition, Nightingale stated in his declaration that an individual gathering
signatures in front of the Lemon Grove store told him he worked for Victory and Mailhot.
Respondents did not object to this portion of the declaration, and thus, this evidence is
properly before us. In his declaration, Kamisizian declared that an individual working for
Victory and Mailhot was gathering signatures on petitions in front of the San Diego store.
Respondents did not object to this portion of the declaration, and thus, this evidence is
27 properly before us. Both Nightingale and Kamisizian identified a picture of Pierce as
showing the individual who was gathering signatures in front of their stores. And Pierce
possessed many Victory business cards and handed one to Mendez as well as handing
him a piece of paper with Mailhot's contact information.
With this evidence, Appellants have shown a prima facie case for agency. Put
differently, such evidence would be sufficient to withstand a motion for summary
judgment, nonsuit, or directed verdict.7 (See Tichinin v. City of Morgan Hill, supra, 177
Cal.App.4th at p. 1062.) Accordingly, Appellants have shown a probability of success on
the merits, and the superior court erred in granting the anti-SLAPP motion on these
grounds.8
7 We are aware that Respondents submitted evidence they believe shows Pierce was not their agent, specifically declarations stating that they have no control over how independent contractors gather signatures. No doubt they will present this evidence to the court for purposes of a summary judgment or to the jury at trial, but here, where we are analyzing the second prong of the anti-SLAPP test, we do not weigh credibility or compare the weight of the evidence. (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212.) In other words, Respondents' evidence does not and cannot negate Appellants' evidence unless it shows Appellants cannot prove agency as a matter of law. Respondents' evidence falls far short of that high hurdle.
8 We observe that Respondents' anti-SLAPP motion presents a curious use of the anti-SLAPP statute. "The anti-SLAPP procedures are designed to shield a defendant's constitutionally protected conduct from the undue burden of frivolous litigation." (Baral v. Schnitt, supra, 1 Cal.5th at p. 393; italics omitted.) Here, even if Respondents' anti- SLAPP motion was successful, it does not achieve the statute's purpose. Respondents' primary argument is that they have not and do not engage in the protected activity at issue in the operative complaint. Thus, the anti-SLAPP motion in the instant matter is not guarding Respondents as they engage in constitutionally protected contact. In this sense, it appears their motion is more appropriately brought as a motion for summary judgment. 28 DISPOSITION
The order is reversed. This case is remanded to the superior court with
instructions to enter an order denying Respondents' anti-SLAPP motion. Appellants are
entitled to their costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
29 Filed 11/15/17 CERTIFIED FOR PUBLICATION
v. (Super. Ct. No. 37-2015-00031668- CU-NP-CTL) VICTORY CONSULTANTS, INC. et al., ORDER CERTIFYING OPINION Defendants and Respondents. FOR PUBLICATION
The opinion in this case filed October 24, 2017 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
___________________________ Acting Presiding Justice
cc: All Parties