Filed 2/2/21 Winco Foods v. Thayer CA4/2 See Concurring Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
WINCO FOODS, LLC,
Plaintiff and Respondent, E072323
v. (Super.Ct.No. MCC1800860)
MARK S. THAYER et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed.
Mark S. Thayer and Jeremy White, in pro. per., and for Defendants and
Appellants.
Seyfarth Shaw, Nick Geannacopulos, Kiran A. Seldon, and Jinouth Vasquez
Santos for Plaintiff and Respondent.
1 Appellants and defendants Mark Thayer and Jeremy White set up sporadically to
register voters and solicit customers for signatures on ballot initiatives in front of
respondent and plaintiff WinCo Foods, LLC’s grocery store in Temecula. WinCo
employees would ask Thayer and White to leave on the grounds they were trespassing
and disturbing their customers, but Thayer and White always refused. WinCo filed a
lawsuit for civil trespass and intentional interference with business relations and sought
declaratory relief and an injunction against trespass.
Thayer and White countered with motions under the statute prohibiting strategic
lawsuits against public participation (anti-SLAPP statute), Code of Civil Procedure
section 425.16, asserting the lawsuit targeted their exercise of their speech rights under
the United States and California Constitutions. The trial court denied their motions
without explanation other than to cite Ralphs Grocery Co. v. Victory Consultants, Inc.
(2017) 17 Cal.App.5th 245 (Ralphs Grocery), which held the same kind of activity
doesn’t constitute protected speech when it occurs on private property in front of a stand-
alone retail store if the property isn’t set up or used for public gathering.
Thayer and White argue the trial court proceedings were inadequate, their activity
was protected speech, and Ralphs Grocery was wrongly decided. We conclude the trial
court proceedings were adequate, follow California case law establishing solicitors do not
have a constitutional right to solicit at the entrance of stores like WinCo’s, and therefore
affirm.
2 I
FACTS
These background facts come from the allegations in WinCo’s complaint and
declarations offered in connection with Thayer’s and White’s anti-SLAPP motions.
A. The WinCo Store
WinCo operates a grocery store in Temecula, where they sell groceries and small
household items to consumers. The WinCo store is located in a stand-alone building,
which has its own parking lot and an unshared sidewalk. The store has a single entrance
and exit for customers.
WinCo is open to the general public and operates for the purpose of offering its
products for sale to consumers. The store doesn’t contain a restaurant or meeting rooms.
There are no tables or places to congregate and no bulletin boards for public use. The
store has never hosted public meetings, events, or gatherings of any kind.
The premises are designed to offer consumers a quick, in-and-out shopping
experience. The sidewalk in front of the store entrance is not designed to accommodate
gatherings. There are no patios, plazas, parks, or gardens for people to pass the time, nor
are there movie theaters, auditoriums, or other similar facilities in the immediate vicinity.
WinCo discourages loitering in or around its store and maintains a no-solicitation
policy. Its employees enforce the no-solicitation policy and the store has never
voluntarily allowed any sort of solicitation on the premises. WinCo also bars activities on
3 store premises or in its parking lot not directly related to their retail business operations.
They ask anyone who loiters in or around the store to leave.
B. Thayer’s and White’s Solicitation
In 2015, Thayer and White started coming to WinCo’s storefront to gather
signatures supporting various ballot initiatives and to register voters.
In late summer or early fall of that year, Thayer came to the store and began
asking WinCo customers to sign a petition for the legalization of marijuana from a
position near the store’s front doors. A customer complained and the store manager
informed Thayer of WinCo’s non-solicitation policy and asked him to leave.
Thayer refused to leave, so the manager contacted the Temecula police
department. The authorities declined to remove Thayer, who then continued to solicit
signatures from WinCo customers for two weeks. The store manager received customer
complaints during that period, including complaints that Thayer was aggressive and used
foul language.
On December 18, 2015, White came to the store and began asking WinCo
customers to sign a petition to legalize marijuana from a position near the store’s front
doors. Like Thayer, White refused to leave when asked by the store manager to do so.
The manager gave White a letter demanding that he cease and desist from soliciting on
WinCo’s private property. The manager again called the Temecula police department, but
they declined to remove White.
4 Over the next four months, White returned to the property at least 11 times to
gather signatures. WinCo employees asked White to leave each time, and each time he
refused. According to the store manager, he received customer complaints about White
each time, including complaints that White was aggressive, rude, and hostile.
Thayer returned to the store to solicit signatures for a few weeks in the fall of
2016. The store manager again requested that Thayer leave, but he refused. The manager
said he received daily customer complaints about Thayer during this period.
On April 1, Thayer returned to the store and on April 23, 2018, both men returned
to the store, placed tables in front of the entrance, and began soliciting customers for
signatures related to a tax measure. During this time, customers complained to the
manager that they didn’t want to shop at the store because of the solicitation and because
the men responded aggressively when customers expressed differing viewpoints.
The manager again called the police and this time the responding officer asked
White and Thayer to leave because they were soliciting on private property. They refused
to leave unless WinCo performed a citizen’s arrest. According to the store manager,
WinCo did so, though he provides no details about that incident. He reports Thayer and
White nevertheless still seek to solicit on WinCo’s property.
C. WinCo’s Complaint
WinCo filed suit against Thayer and White, alleging they “have entered and
occupied . . . the Store premises without permission to do so, have refused to leave when
asked by Store personnel, and threaten to return whenever it so pleases them.” WinCo
5 alleged their conduct constitutes trespass and sought a court order prohibiting them from
entering due to their “continuing disregard of [WinCo’s] rights.”
WinCo also alleged Thayer and White had harmed the store’s “business and
goodwill by intentionally interfering with WinCo’s business relations with its customers
and its employees as well as damaging WinCo’s reputation.” WinCo alleged they
“knowingly and intentionally interfere[d] with” these relationships.
WinCo asserted claims for civil trespass and intentional interference with business
relations and sought declaratory and injunctive relief to exclude Thayer and White from
its premises for any purpose other than grocery shopping.
D. Thayer’s and White’s Anti-SLAPP Motions
Thayer and White filed motions to strike under the state anti-SLAPP statute, Code
of Civil Procedure section 425.16. Both men submitted declarations to support their
motions. The substance of both declarations agreed in broad outline with the declaration
of WinCo’s store manager. They admitted they had been collecting and gathering
signatures outside the entrance to the WinCo store and said they had told WinCo
employees repeatedly their conduct didn’t constitute trespass and had therefore refused to
leave.
We set out White’s full statement here. “I have been collecting and gathering
signatures for ballot issues and registering voters at WINCO FOODS STORE located at
40435 Winchester Road, Temecula, CA 92591 since 2015 and have registered over 300
voters at that specific location per season. I further have collected many tens of thousands
6 of signatures for ballot issues at that location. The voter registrations and signatures
gathered are independent to what was done at that location by other signature gatherers.
Every time I arrive at WINCO FOODS and begin registering voters and collecting
signatures outside the entrance to the store, WINCO FOODS employees would approach
and begin harassing me in front of their customers, yelling at me that their Company
Corporate Policy prohibited me from registering voters and gathering signatures for
ballot issues in front of their store and to get out. They repeatedly threatened to call the
Police if I did not stop what I was doing and leave from in front of their store. I would
inform them to provide them notice, both orally and in writing, I was engaged in
constitutional activity and not committing any trespasses and would not leave. They in
turn would call the Police, who would arrive and investigate the matter. Upon sharing
with the Police California Penal Code 602.1(d)2, the Officers would explain to the
WINCO FOODS store employees that I was allowed to be there engaging in the
Constitutional activity and conduct I was engaged in. I would continue to register voters
and gather signatures. WINCO FOODS employees however ignored what they were told
by the Officers and would repeatedly call the Police over and over again and cause them
to return to the store only to re-told again that what I was engaging in was constitutional
activity and because I was not subject to the trespass statute they could not remove me.
During the course of registering voters and collecting signatures last April 2018, WINCO
FOODS employees advised me they had wanted to sue me for years and were going to
sue me to get an injunction against me to enforce their Idaho Company Policy and keep
7 me from registering voters and gathering signatures at their store located there at 40435
Winchester Road, Temecula, CA 92591 and other store locations throughout California.”
Thayer’s declaration is substantially the same.
In their briefs, Thayer and White defended their actions based on their assertion
that gathering signatures on WinCo’s property is protected speech. They cited Penal
Code section 602.1, subdivision (d) as establishing that collecting signatures for ballot
initiatives is not criminal trespass and pointed to an opinion from the City of Riverside
that collection of signatures on private property cannot be enjoined even when a business
files a complaint with state and local authorities. They argued these sources “indicate that
there is a strong argument that the collection of signatures on private property is
constitutionally protected activity” and the Ralphs Grocery decision was wrongly
decided. They urged the trial court to construe free speech rights and the anti-SLAPP
statute broadly to protect their activities.
WinCo opposed the motions on the grounds the solicitation was not protected
activity because the store is a “stand-alone retail establishment that does not have a place
for customers to congregate” and is “very different from a large shopping center” that
could be considered a quasi-public forum under Robins v. Pruneyard Shopping Center
(1979) 23 Cal.3d 899 (Pruneyard). They relied explicitly on the Ralphs Grocery court’s
reasoning that “because the activity was occurring on private property, and thus, not
protected under the First and Fourteenth Amendments of the United States Constitution
8 or under California law, the petitioners had not met their burden of showing that the
complaint arose from protected activity.”
WinCo also argued they had demonstrated that, even if Thayer and White could
show their actions were protected, WinCo’s uncontested evidence showed they had a
probability of succeeding on the merits of their claims.
E. The Trial Court Order Denying the Anti-SLAPP Motions
On January 30, 2019, the trial court issued a tentative ruling saying it would deny
the motions under the rationale of Ralphs Grocery. The announcement of the tentative
ruling advised the parties they must notify the court if they desired oral argument,
otherwise “the tentative ruling will become the final ruling on the matter effective the
date of the hearing.”
Thayer and White didn’t request oral argument as required. However, the trial
court permitted Thayer to argue the motion at the case management hearing held the next
day. Thayer reiterated the arguments in his brief and argued the Ralphs Grocery decision
was wrongly decided.
Thayer and White also attempted to present new evidence, which consisted of
unsigned copies of ballot initiatives for which they had solicited signatures and a voter
registration form. The trial court allowed them to file the documents but declined to
consider them as not timely. The ballot initiatives are part of the record on appeal,
attached to Thayer’s and White’s motion for judicial notice filed in the trial court, though
the voter registration form is not.
9 After hearing Thayer’s argument, the trial judge announced—without further
explanation—that it would not change its tentative ruling and denied the motions to
strike. The trial judge then proceeded with the case management hearing, determined
Thayer and White declined court-sponsored mediation, ordered a mandatory settlement
conference, and set a trial status conference.
Thayer and White timely appealed the orders denying their motions to strike.
II
ANALYSIS
A. The Trial Court Proceedings
Thayer and White argue the trial court “failed to give [them] any meaningful
opportunity to be heard” at the case management hearing and complain they “were
deprived of their opportunity to present evidence, facts and argument” supporting their
anti-SLAPP motions.
Thayer and White represent the trial judge didn’t allow them to present oral
argument. They say when Thayer attempted to present his arguments, he “was notified by
the court the matter was over. [Thayer] never got to present his case, his evidence, his
argument. No meaningful hearing was conducted. As a result, none of that is available for
review on appeal other than the trial court’s denial of appellant’s Special Motion to Strike
and what limited record the court made.” They argue the trial judge “abused its discretion
by dismissing the case pursuant to Ralphs Supermarkets v. Victory Consultants, 21
10 Cal.App.5th (2017) without giving [them] an opportunity to present their case and
evidence showing why [their] conduct was different than that discussed in [that case].”
We review evidentiary rulings refusing to admit evidence in connection with anti-
SLAPP motions for abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc.
(2007) 152 Cal.App.4th 1043, 1061.) We see no abuse of discretion here. First, we reject
the contention that Thayer and White had no meaningful chance to present their
arguments. They presented their motions to strike in written form to the court and
supported them with declarations setting out the facts. They also submitted memoranda
of law which effectively, if not successfully, argued the relevant legal points, including
by identifying the Ralphs Grocery decision and arguing that it was wrongly decided.
Though they failed to notify the court that they intended to argue the motion at the
January 31 hearing, the trial judge nevertheless allowed Thayer to argue, and Thayer
again made the relevant legal points. The trial judge remained unconvinced and ruled
against the defendants. Nevertheless, Thayer and White had every opportunity to
advocate for their position, and Thayer did an admirable job doing so for a litigant
untrained in the law.
We also find no error in the trial court’s decision not to consider the additional
evidence Thayer and White sought to present at the hearing. Trial courts have particularly
broad discretion in ruling on the admission of evidence. If Thayer and White thought the
evidence was critical to their motion, they should have submitted it with their
11 declarations, not brought it forward after the trial court had considered the parties’
submissions and issued a tentative ruling.
In any event, Thayer and White submitted the new evidence to the court attached
to motions for judicial notice, which are part of the record on appeal. These documents
show the trial judge didn’t abuse its discretion in declining to consider them and also that
any error was harmless. The documents consisted of unsigned ballot initiatives for which
Thayer and White had solicited signatures. Their briefs in the trial court said they also
submitted a voter registration form, though that form is not in the record on appeal. Such
evidence was, at best, duplicative. The parties agreed on the nature of Thayer’s and
White’s conduct, so the forms were unnecessary to decide whether to grant the motion to
strike. The question was whether their conduct was protected under current law.
We therefore decline to reverse the order denying the motions to strike based on
the alleged deficiencies with the process in the trial court.
B. Denial of the Anti-SLAPP Motions
Thayer and White argue the trial judge erred by denying their motions to strike
WinCo’s allegations because soliciting citizens to support ballot initiatives and
registering voters is protected political speech which WinCo targeted to silence them.
A strategic lawsuit against public participation (SLAPP suit) is “a meritless
lawsuit ‘filed primarily to chill the defendant’s exercise of First Amendment rights.’”
(Paul v. Friedman (2002) 95 Cal.App.4th 853, 861, quoting Wilcox v. Superior Court
(1994) 27 Cal.App.4th 809, 815, fn. 2.) The California Legislature passed the anti-
12 SLAPP statute, Code of Civil Procedure section 425.16, to cut SLAPP suits short,
allowing a defendant to move to dismiss “certain unmeritorious claims that are brought to
thwart constitutionally protected speech or petitioning activity.” (Robinzine v. Vicory
(2006) 143 Cal.App.4th 1416, 1420-1421.)
The anti-SLAPP statute provides, “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 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.” (Code Civ. Proc, § 425.16, subd. (b)(1), unlabeled statutory citations refer to this
code.)
Faced with a special motion to strike, a trial court must conduct a two-step
analysis. “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,
13 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.)
“To make a showing under the first prong, the defendant need not show that the
actions it is alleged to have taken were protected as a matter of law, but need only
establish a prima facie case that its alleged actions fell into one of the categories listed in
section 425.16, subdivision (e).” (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6
Cal.App.5th 602, 614-615 (Medical Marijuana).) Section 425.16, subdivision (e) protects
“(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 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.”
“‘[T]he statutory phrase “cause of action . . . arising from” means simply that the
defendant’s act underlying the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.’ [Citations.] A cause of action may be
triggered by a protected act but not arise from that act. [Citation.] Thus, the ‘anti-SLAPP
14 statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the
defendant’s activity that gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.’” (Medical Marijuana, supra, 6
Cal.App.5th at pp. 614-615.)
If the court finds the lawsuit didn’t arise from protected speech or petitioning, the
anti-SLAPP motion fails. If the court finds the defendant has made the required showing,
the burden shifts to the plaintiff to demonstrate “there is a probability that the plaintiff
will prevail on the claim.” (§ 425.16, subd. (b)(1); see Medical Marijuana, supra, 6
Cal.App.5th at p. 615.) “Only a cause of action that satisfies both prongs of the anti-
SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to be stricken under the statute.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89.)
We review de novo the trial court’s order denying a motion to strike under section
425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We consider the pleadings and
supporting and opposing affidavits, and “accept as true the evidence favorable to the
plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
Thayer and White argue WinCo’s complaint is aimed at protected activity, namely
their solicitation of signatures to support ballot initiatives and referendums. WinCo
contends the allegations in the complaint don’t target protected activity because the
15 solicitation occurred on private property which isn’t held open for public gatherings and
therefore isn’t protected under the First and Fourteenth Amendments of the United States
Constitution or under the California Constitution. (See Lloyd Corp. v. Tanner (1972) 407
U.S. 551, 567; Ralphs Grocery Co. v. United Food & Commercial Workers Union Local
8 (2012) 55 Cal.4th 1083, 1104.)
In deciding whether an anti-SLAPP motion should be granted, “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). [Citation.] 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.” (Ralphs Grocery, supra,
17 Cal.App.5th at p. 258.) Here, WinCo have alleged Thayer’s and White’s solicitation
occurred in front of their Temecula store, that the store is private property, and the
solicitation is therefore not protected activity. Thayer and White have to show WinCo are 1 incorrect and the complaint is directed at protected activity.
1 Thayer and White suggest WinCo is arguing the law of its home state, Idaho, should control. We don’t understand their argument in that way. In any event, we agree with Thayer and White that the “major question to be answered [is] whether the activity of the Appellants, the registration of voters and collection of signatures for state ballot initiatives, is constitutionally protected activity based on recent interpretations of California state law.”
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. [Citation.] ‘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
protect[s] speech, reasonably exercised, on the property, even though the property was
privately owned.’” (Ralphs Grocery, supra, 17 Cal.App.5th at p. 258.)
However, the California Supreme Court has recognized Pruneyard is limited to
common areas set aside for gatherings, rather than areas reserved simply for entering and
exiting a store. The Court explained such common gathering spots “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 rather than in the less heavily trafficked and
17 more congenial common areas.” (Ralphs Grocery Co. v. United Food & Commercial
Workers Union Local 8, supra, 55 Cal.4th at p. 1092.)
As a result, our Supreme Court concluded, “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.” (Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8,
supra, 55 Cal.4th at p. 1092, first italics added.) “[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.” (Id. at p. 1093.)
Thayer and White point to no allegations that support treating the front of the
WinCo store as a public forum for purposes of our analysis. They therefore failed to carry
their burden of establishing their petitioning activity engaged in at the front of the WinCo
store was protected. WinCo, by contrast, provided undisputed evidence, in the form of
their store manager’s declaration, that the store is a retail shop with the sole purpose of
selling food products to customers. He said the store is located in a stand-alone building
with its own parking lot and an unshared sidewalk and has a single entrance and exit for
customers. He also said they don’t have a restaurant or meeting rooms, there are no tables
or places to congregate, there are no bulletin boards for public use, and they have never
18 hosted public meetings, events, or gatherings of any kind. Nor is the sidewalk in front of
the store entrance designed to accommodate gatherings. It has no patios, plazas, parks, or
gardens, and there aren’t any movie theaters, auditoriums, or other similar facilities in the
immediate vicinity.
In these respects, the store is just like the store in Ralphs Grocery, where the Court
of Appeal found similar petitioning activity was not protected under Pruneyard. (Ralphs
Grocery, supra, 17 Cal.App.5th at p. 261.) We see no basis for departing from that
decision. As in that case, WinCo “open their . . . 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 [store] do[es] not have a public character that would support a finding that
Respondents were engaging in protected activity for purposes of their anti-SLAPP
motion.” (Id. at pp. 260-261.)
Thayer and White argue that we should nevertheless find their activity protected
because it is excluded from the definition of criminal trespass under the Penal Code.
They point to Penal Code section 601.2, which defines misdemeanor criminal trespass
but expressly excludes conduct by a person “who is engaging in activities protected by
the California Constitution or the United States Constitution.” (Pen. Code, § 601.2, subd.
(d).) They also point out that “the City of Riverside has issued an opinion that the
collection of signatures on private property is not criminal activity and cannot be
enjoined even when a business files a complaint with state and local authorities.” The
19 problem with this argument is these sources concern the reach of the Penal Code. Penal
Code section 601.2 defines criminal trespass and imposes punishment for qualifying
conduct. WinCo has brought a suit for civil trespass, which is a broader category of
conduct and allows property owners to protect their private property interests and recover
damages for any injuries suffered but doesn’t impose criminal sanctions. We see no basis
in these sources to depart from the settled California case law holding solicitation that
occurs on private property which is not held open to the public for gathering is not 2 protected activity under the anti-SLAPP statute.
III
DISPOSITION
We affirm the order denying Thayer’s and White’s special motions to strike. The
parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH Acting P. J. We concur:
FIELDS J.
MENETREZ J.
2We decline to address whether solicitation that occurs on private property that is not a public forum is protected activity under the Penal Code.
20 [WinCo Foods, LLC v. Thayer et al., E072323]
Slough, J., Concurring.
I would go further than my colleagues and, as the parties request, address whether
WinCo’s claims against Thayer and White have minimal merit. An anti-SLAPP motion
fails if the cause of action doesn’t arise from protected activity, but it also fails if the
plaintiff demonstrates the claim has at least minimal merit. (Code Civ. Proc., § 425.16,
subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) WinCo has demonstrated their
trespass claim has minimal merit but in my view hasn’t done so for their intentional
interference with business relations claim.
Under Code of Civil Procedure section 425.16, subdivision (b)(2), the trial court
makes this determination by looking to “the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.” (Navellier v.
Sletten, supra, 29 Cal.4th at p. 89.) We don’t “weigh credibility or compare the weight of
the evidence . . . [but] accept as true the evidence favorable to the plaintiff.” (HMS
Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) WinCo need only
establish their claims have minimal merit to avoid being stricken as a SLAPP suit.
(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.”’” (Ralphs
Grocery (2017) 17 Cal.App.5th 245, 261.)
1 WinCo’s allegations and the declaration of their store manager satisfy their
minimal burden of establishing a probability of prevailing on their claim that Thayer and
White were trespassing while collecting signatures at the store, which requires proof of
“(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.” (Ralphs Grocery, supra, 17 Cal.App.5th at p. 262.) Their
store manager said WinCo owns the property and Thayer and White intentionally entered
their property without permission. The store manager also said Thayer’s and White’s
conduct while soliciting their customers was aggressive, hostile, and elicited customer
complaints. Thayer and White don’t contest any of these facts, and we are required to
credit them. Thus, WinCo have met their burden of showing their trespass claim has the
minimal merit required to go forward despite defendants’ anti-SLAPP motion.
The same is not true of WinCo’s intentional interference with business
relationships claim, which requires proof of “(1) an economic relationship between the
plaintiff and some third party, with the probability of future economic benefit to the
plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the
part of the defendant designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the
defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)
2 WinCo ask us to uphold their claim for intentional interference against the anti-
SLAPP motions on the ground they have established a minimal likelihood of success.
I don’t think they’ve carried their burden on this claim because they haven’t alleged or
presented evidence that Thayer’s and White’s soliciting activities were “designed to
disrupt” WinCo’s relationship with their customers. To establish a defendant’s actions
were designed to disrupt a business relationship, a plaintiff must establish the defendant
desired the interference or knew it was “certain or substantially certain to occur as a
result of his action.” (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at
p. 1157, quoting Rest.2d Torts, § 766B, com. d, p. 22.) Here, though WinCo’s manager
says there were customers who said they didn’t want to shop at the store when the men
were soliciting in front of it, he didn’t provide evidence any customer followed through
on such a threat, that Thayer and White wanted to drive customers away, or even that he
put them on notice by telling them he was receiving such complaints.
If anything, it may be argued the allegations and evidence show Thayer and White
should have known their aggressive and rude behavior would drive some of WinCo’s
customers to do their shopping elsewhere. I don’t think WinCo’s allegations or their
manager’s declaration support that inference. For Thayer and White to understand their
conduct was certain or substantially certain to keep customers away, it would have to be
foreseeable and reasonable for a customer to carry out a threat to shop elsewhere. But
Thayer and White were present at the store only sporadically. According to WinCo,
Thayer came to their store for about two weeks in 2015, for a few weeks in 2016, not at
3 all in 2017, and for two days in April 2018. White was there for about 11 days between
December 2015 and April 2016 and again for one day on April 23, 2018. That works out
to about 13 days for White and 25 days for Thayer over a period of two and a half years.
While we are required to credit WinCo’s assertion that customers complained about their
conduct when they were present and some said they didn’t want to shop at the store while
Thayer and White were soliciting, I don’t think it’s reasonable to charge them with
knowing anyone would would shop at another store when the chance of any one customer
coming upon them on any given day was so very low. This is not to say that sustained
solicitation in front of the same store could not support an intentional interference with
business relationships claim, especially if the store owner presented evidence that
customers did shop elsewhere to avoid them. However, I don’t believe WinCo’s
allegations and evidence support the claim.
This case hasn’t reached the stage where WinCo’s claims can be dismissed for
lack of evidentiary support, however. Their claim survives the special motion to strike
because soliciting signatures on private property is not protected activity. However, in my
view, to prevail against either defendant, they will have to present stronger evidence that
either Thayer or White were certain or substantially certain WinCo would lose customers
as a result of their conduct.
SLOUGH Acting P. J.