SCHWARTZ TORRANCE INVESTMENT CORPORATION v. BAKERY AND CONFECTIONERY WORKERS UNION LOCAL NO 31

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District Court of Appeal, Second District, Division 1, California.

SCHWARTZ-TORRANCE INVESTMENT CORPORATION, a corporation, Plaintiff and Respondent, v. BAKERY AND CONFECTIONERY WORKERS' UNION, LOCAL NO. 31, an unincorporated voluntary association, Defendant and Appellant.

Civ. 27253.

Decided: November 18, 1963

Brundage, Hackler & Roseman, Los Angeles, by Eugene Miller, Beverly Hills, and Julius Reich, Los Angeles, for appellant. Carroll, Davis, Burdick & McDonough, Roland C. Davis, San Francisco, brief for California State Council of Retail Clerks, amicus curiae in behalf of appellant. Lionel Richman, A. L. Wirin, Fred Okrand, Los Angeles, brief of amicus curiae in support of appellant. McLaughlin & McLaughlin, Joseph M. McLaughlin, Jr., Frederick A. Morgan, Los Angeles, for respondent. Angell, Adams, Gochnauer, Elder & Holmes, by Pembroke Gochnauer, San Francisco, brief for California Retailers Ass'n amicus curiae in behalf of respondent.

This action was brought by the owner of a shopping center (not a party to a labor dispute) to enjoin as trespass a Union's peaceful organizational picketing being conducted (on the sidewalk immediately in front of the business or store of a tenant sought to be organized) within the shopping center.

The appeal is by defendant Union from the judgment in favor of plaintiff owner which permanently enjoins and restrains defendant (1) from trespassing or entering upon plaintiff's shopping center for the purpose of conducting any picketing activities thereon directed at plaintiff's tenant, Tom Revels, or interfering or attempting to interfere with the customers or potential customers of plaintiff while any such customers or potential customers are on the said property or any part thereof; (2) while on such property from carrying any placards and from distributing any handbills or other written matter relating or pertaining to any tenant on the said property or from causing or soliciting in any way, either orally or in writing, or by threat or any other device, any customers or prospective customers to refrain from entering upon the said property or doing business with any of the tenants of plaintiff located on the said property; and (3) while on the property from harassing, annoying or intimidating any customers or prospective customers of any tenants on the said property, either by word of mouth, sign or other activity or by the use of any threats or coercive tactics of any kind or nature whatsoever.

A reśume ́of some of the significant events is as follows: On June 11, 1962, plaintiff filed a second amended complaint to enjoin trespassing and picketing activities on plaintiff's property. It was alleged therein in substance that plaintiff is now and has been at all times mentioned the lessee under a valid and subsisting written lease of a parcel of real property located in the City of Torrance; that the terms of the lease began on March 1, 1958, and ends on December 31, 2007 A.D.; that plaintiff's lessor is the City of Torrance; that after the execution of the lease plaintiff constructed a shopping center known as Rolling Hills Plaza consisting of stores, parking lot, driveway and walkway; that among the said stores are the following: a retail food market, a bakery shop, a drugstore, a barber shop and a cleaning establishment; that plaintiff subleases and rents the stores to various tenants. In front of each of the stores is a walkway which is located on plaintiff's premises. ‘That the purpose of said walkway is to provide a means of ingress and egress to the stores located in said shopping center, and was built and is maintained by plaintiff solely for the use of plaintiff's tenants and the customers and suppliers of said tenants. That directly next to the walkway is a vehicle parking lot which is adjacent to Highway 101 and Crenshaw Boulevard. That under the terms of the said written lease, plaintiff is in exclusive possession and control of said walkway and parking lot, and plaintiff operates and maintains the parking lot and walkway for the sole convenience of plaintiff's tenants and the customers and suppliers of said tenants,’ that the bakery shop is subleased and rented to one Tom Revels and is known as Revels' Bakery Shop. Under the terms of the lease Revels is required to pay plaintiff as rental the sum of $450 per month plus an additional percentage rental of 5 per cent of the gross income of the operation of Revels' Bakery Shop. Plaintiff further alleged that on or about February 16, 1962, defendant Union caused pickets to be placed on the walkway directly in front of Revels' Bakery Shop, that the picketing took place each and every day from February 16th until on or about the 7th day of March 1962. Plaintiff asserted that while defendant's pickets were picketing and trespassing on plaintiff's property, the pickets among other things informed customers that the bakery shop was full of cockroaches, they made faces at the customers, performed obscene actions, making obscene gestures to female customers and performed a number of other activities. Further that the defendant resumed trespassing and picketing on April 17, 1962, and since that date defendant has been intimidating the customers of Revels' Bakery Shop by writing down the license numbers of all customers who patronize the shop and using vile and filthy language to customers of the bakery shop.

Plaintiff then asserted that it ‘has no employees who are members of the defendant union or who are represented by the defendant union in any way, and there is no controversy between defendants and Revels' Bakery Shop concerning any matter whatsoever, except that defendants are seeking by the said picketing and acts hereinabove described to force Tom Revels to recognize the defendant union as the bargaining agent and representative of and for Tom Revels' employees. That plaintiff has nothing to do with the employment of employees of Tom Revels or with the negotiation of any contracts or agreements relating to any employees of Tom Revels.’ Plaintiff then alleged that it had never consented to the presence of defendant's agents or officers on the private walkway nor invited or consented to the said pickets parking their automobiles in plaintiff's parking lot. Plaintiff further asserted that unless defendant is enjoined and restrained from trespassing upon plaintiff's property, from commencing, doing and performing all of the acts and things which have been alleged, defendant will continue trespassing upon said property.

On June 27, 1962, a trial court overruled defendant's demurrer and granted the preliminary injunction sought by plaintiff. In a written opinion the trial judge stated in pertinent part as follows: ‘Having determined that the area in question is, upon the record before this Court, the private property of plaintiff, and that the business defendants transact thereon is without the use for which plaintiff intended its parking areas and walkways, and in view of the foregoing authorities, the Court must, therefore, allow plaintiff the relief it seeks.’

Defendant filed its answer to the second amended complaint on July 12, 1962. Among other things defendant denies that the walkway was built and maintained by plaintiff solely for the use of plaintiff's tenants and customers and suppliers of said tenants; denies that under the terms of the lease plaintiff is in exclusive possession and control of the walkway and parking lot, alleges that plaintiff impliedly invited the defendant upon the premises and asserts for a first affirmative defense that plaintiff is not a proper party plaintiff and is entitled to no relief.

A pre-trial conference order was filed October 23, 1962. It incorporated by reference a joint pre-trial statement of the parties. Therein the following matters of fact were agreed upon: (1) That plaintiff, a corporation, operates a shopping center known as Rolling Hills Plaza, which shopping center is located in the City of Torrance, (2) that plaintiff leases the shopping center from the City of Torrance under a lease which began on March 1, 1958, and will end on December 31, 2007, (3) that located in the shopping center are various stores which plaintiff subleases to tenants and that one such tenant is Tom Revels who operates a bakery under the name of Revels' Bakery Shop, (4) that Tom Revels leases his shop under a lease which calls for rental payments to plaintiff in the amount of $450 per month plus 5 per cent of the monthly gross income from the bakery shop, (5) that also located in the shopping center in front of the various stores is a walkway and parking lot which was constructed by plaintiff, that the purpose of the walkway is to provide a means of ingress and egress to the various stores located in the shopping center, (6) that defendant caused pickets to be placed on the walkway in front of Revels' Bakery Shop, (7) that none of the employees of Revels' Bakery Shop belongs to or is a member of the defendant union, (8) that plaintiff through its attorneys demanded that defendant cause the pickets to be removed from plaintiff's premises on February 3, 1962. In addition to setting forth the matters of fact agreed upon the parties set forth their respective contentions.1

After a trial by the court, findings of fact and conclusions of law were filed on January 2, 1963.2 Judgment was entered January 3, 1963, and the within appeal followed.

There are essentially two issues presented in the case at bar. First, whether the owner of a shopping center, not a party to the disharmony attributable to labor and management, is entitled to enjoin as trespass a union's peaceful organizational picketing of commercial premises leased by an employer from the owner. The second, whether the state court has jurisdiction to entertain the action initiated by the shopping center owner.

Turning first to the jurisdictional issue we believe that the approach taken in the concurring opinion in Freeman v. Retail Clerks Union Local No. 1207, 58 Wash.2d 426, 363 P.2d 803, at page 807, is sound. It is there stated in pertinent part as follows:

‘* * * [t]he issue presented was whether the property owners, despite their precautions and efforts to protect their right to control the use of the property, had lost the right to prevent pickets from carrying their signs. * * *

‘* * * [t]he appellants [respondent in the case at bar] are before the court as property owners who do not want certain people to do certain things on their property. They are not here as employers, or as individuals having any present or foreseeable future relationship with the picketing union. Just how or on what theory the appellants [respondents in the case at bar] could get a hearing before the National Labor Relations Board (to determine whether pickets are justifiably on their property) is not clear to me.

‘If instead of being a shopping center, the property in question was merely a forty-acre pasture for contented cows, but a desirable place from which pickets could carry signs imparting information * * * to the customers of that company, there could be no question that the owner would be entitled to an injunction—not to restrain the picketing, but to prevent their trespass on property where they had no right to be.

‘Yet the logic of the pre-emption of jurisdiction, as applied by the majority, is that trespass means nothing. Given peaceful picketing and a concern engaged in interstate commerce, then the state courts are divested of jurisdiction over any controversy which might arise.

‘It should be noted that the question with which we are here concerned was expressly reserved in Amalgamated Meat Cutters & Butchers Workmen of North America, Local No. 427, A. F. L. v. Fairlawn Meat, Inc., 1957, 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613. Unless the court there believed it possible to frame an injunction and enforce an injunction aimed narrowly at a trespass, it did a vain and useless thing in making a remand to the state court.

‘Until the Supreme Court of the United States holds that the law of trespass is no longer applicable to pickets under any circumstances, the state courts not only have the right, but the duty, to determine the extent to which pickets may utilize the property of nonparticipants in a labor dispute.’ (Emphasis added.) (See Moreland Corp. v. Retail Store Employees Union No. 444 (1962), 16 Wis.2d 499, 114 N.W.2d 876; People v. Goduto, 21 Ill.2d 605, 174 N.E.2d 385. Cert. den. 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190; but see 48 Virginia Law Review 133; 73 Harvard Law Review 1216, and 10 Stanford Law Review 694.)

We determine that the state court has jurisdiction to entertain the present action. We now turn to the issue of whether the plaintiff shopping center owner under the circumstances is entitled to enjoin as a trespass defendant's peaceful organizational picketing.

As is set forth in footnote 2 the trial court found that plaintiff owner was in exclusive possession and control of the parking lot and walkway in the shopping center; that plaintiff did not at any time invite defendant on plaintiff's private property or consent to defendant's presence thereon and that defendant trespassed upon plaintiff's private property. These findings find evidentiary support in the record.

However, attaching the label of private property to the area involved is not in and of itself the answer to the question of whether plaintiff is entitled to an injunction. Two competing social interests are brought into sharp conflict, namely, the conflict between property rights and freedom of speech.

The approach taken in he concurring opinion in the Washington case of Freeman v. Retail Clerks Union Local No. 1207, supra, 363 P.2d 803, is valid. In pertinent part it is there stated as follows:

“A review of the authorities reveals that there are certain factual situations where virtually every court would say ‘No’ to persons desiring to come upon privately-owned land for the purpose of exercising free speech. There are also situations where virtually every court would require an owner of private property to suffer an infringement of his right to control the property in favor of free speech. Research reveals there to be five factors which, if present, any court would be justified in weighing the equities of the parties and in considering the right of the union to come upon private property to engage in peaceful picketing.

“Courts uniformly have considered tolerating what would otherwise be an unlawful trespass when a person or persons come upon private property for the purpose of exercising his or their right of free speech when all or some of the following factors are present:

“1. When the private property owner designs his property for use by the general public in such a manner as to make it difficult to impossible to distinguish its physical characteristics from publicly-owned property similarly so devoted;

“2. The exercise of the right of free speech is for the purpose of making a communication to persons naturally upon the premises as a result of the inherent nature of the primary use to which the property is devoted;

“3. A similar communication clearly would be permitted under identical circumstances had the property been public;

“4. Interference with the owner's fundamental rights of privacy or personal use and occupacy is not involved as distinguished from control, and no direct pecuniary loss will result to the owner;

“5. The trespasser has no place or means available as an alternate, or the only alternate would be unrealistic or impractical to the point where there exists a serious restriction upon the trespasser's ability to communicate as effectively as would naturally and normally be expected were the legal title in public ownership.

“Under such circumstances, the courts weigh the magnitude and character of the invasion of the property rights against the seriousness and nature of the restrictions upon the trespasser's freedom of speech.”

Under the usual and generally accepted circumstances, a property owner can control as to who goes onto such property and can dictate for what purposes an entry may be made onto the property. We know however that a formal dedication to public use is not a prerequisite to or for many considerable limitations and restrictions of the right of control. We have seen where legislatures have imposed limitations upon an owner's right to exclude persons from his property or to refuse service to such persons on account of their race or creed if the property is used as a place of public accommodation. The courts also in many instances have placed restrictions on the control which an owner may exercise over his property such as in the ‘company town’ situations.

The pickets here without their signs were undoubtedly indistinguishable from the other members of the public who were in the shopping center.

The judgment is reversed and the cause is remanded to the trial court with directions to make a redetermination in the light of the principles set forth above, each party to bear its own costs on appeal.

FOOTNOTES

1.  ‘CONTENTIONS OF THE PARTIES‘A. Plaintiff's contentions: ‘1. That plaintiff built, operates and maintains the parking lot and walkway solely for the use of its tenants and the customers and suppliers of said tenants. ‘2. That plaintiff is in exclusive possession and control of the said walkway and parking lot. ‘3. That defendant's picketing of one of plaintiff's tenants on the walkway and parking lot constitutes a trespass on plaintiff's private property. ‘4. That the defendant union, through its officers, agents and members, have done the things and acts described in paragraphs VI and VII of plaintiff's second amended complaint, and are not entitled to engage in and do such acts and things as described in said paragraphs. ‘5. That during the time as described in plaintiff's complaint when defendant union was picketing on plaintiff's property, monetary damage was caused to plaintiff by the loss of rentals under plaintiff's lease with its tenant, Tom Revels. ‘6. That plaintiff has not unlawfully discriminated against defendant union.‘B. Defendant's contentions: ‘1. That the shopping center involved in this case has been open to the public without restriction or limitation. ‘2. That plaintiff is not a proper party to bring this lawsuit. ‘3. That defendant Union's picketing does not constitute a trespass as to plaintiff or any other persons. ‘4. That defendant Union has not done the things or acts described in Paragraphs VI or VII of plaintiff's Second Amended Complaint. ‘5. That plaintiff is not in exclusive possession or control of the walkway or parking lot; or that the walkway and parking lot are maintained for the sole convenience of tenants, customers and suppliers of the shopping center. ‘6. That plaintiff impliedly invited defendant union and its pickets upon the premises. ‘7. That if plaintiff did not impliedly invite defendant union and its pickets upon the premises, plaintiff unlawfully discriminated against defendant union. ‘8. That defendant Union and its pickets have a legal and constitutional right to picket on the premises of the shopping center. ‘9. That the picketing involved has caused no damage to plaintiff. ‘10. That if defendant union has committed any actionable wrong, the remedy at law is adequate.’

2.  ‘FINDING OF FACT ‘I ‘Plaintiff is now and has been at all times herein mentioned a corporation organized and existing under the laws of the State of California, and has its principal office and place of business in the City of Torrance, County of Los Angeles, State of California. ‘II ‘Plaintiff is and has been at all times herein mentioned the proper party to bring this action. ‘III ‘Defendant Bakery & Confectionery Workers Union, Local 31, is now and has been at all times herein mentioned an unincorporated voluntary association functioning as a labor organization and affiliated with the Bakery and Confectionery Workers' International Union of America. ‘IV ‘Plaintiff is now, and has been at all times mentioned herein, the lessee of a parcel of real property located on the corner of Highway 101 and Crenshaw Boulevard in the City of Torrance, County of Los Angeles, State of California. That plaintiff leases said property from the City of Torrance under a lease which began on March 1, 1958 and ends on December 1, 2007, A.D. That plaintiff has built a shopping center on said parcel of property consisting of stores, parking lot, driveways and a walkway. That the purpose of said walkway is to provide a means of ingress and egress for the customers, both actual and potential, of the stores located in said shopping center. That the said parking lot and walkway was constructed and has, at all times, been maintained for the convenience of customers and prospective customers of the stores located in said shopping center. That plaintiff is now, and has been at all times, in exclusive possession and control of the parking lot and walkway in said shopping center. ‘V ‘That one of the stores located in said shopping center is leased and rented to Tom Revels, who owns and operates a bakery known as Revels Bakery Shop. That said Tom Revels pays to plaintiff as rent the sum of $450.00 per month, plus five percent of the gross income from the operation of said bakery shop. ‘VI ‘That beginning on the 16th day of February 1962, until the 9th day of March 1962, and beginning again on April 17, 1962 and continuing until on or about the 2nd day of July 1962, defendant union, through its officers and agents, trespassed upon plaintiff's private property and picketed the said Revels Bakery Shop for the purpose of advertising a labor dispute with plaintiff's tenant, Tom Revels, and for the further purpose of inducing the employees of Tom Revels to join defendant union. That in trespassing upon plaintiff's private property, defendants caused pickets to be placed in front of the said Revels Bakery Shop, on plaintiff's private walkway, and said pickets marched up and down in front of said bakery shop carrying signs which read: ‘Revels Bakery is non-union and is unfair to organized labor. Please do not partronize. Signed, Bakers Union Local 31.’ ‘VII ‘That plaintiff, on or about the 23rd day of February 1962 demanded that the defendant remove its officers and agents from plaintiff's property and to cease defendant's trespassing. That plaintiff did not, at any time, invite defendant on plaintiff's private property or consent to defendant's presence thereon. ‘VIII ‘That defendants failed, neglected and refused to cease the above described picketing and trespassed on plaintiff's property on the walkway and parking area in front of the store leased to Tom Revels. ‘CONCLUSIONS OF LAW ‘1. That plaintiff has the exclusive right, possession and control of the parking lot and walkway located on plaintiff's property, and constructed and maintains said walkway and parking lot sole for the convenience of the customers, both actual and potential, of said shopping center. ‘2. That defendants are not entitled to enter upon plaintiff's property for the purpose of picketing and advertising a labor dispute and that such entry and picketing constitutes a trespass against plaintiff. ‘3. That defendants are entitled to picket and to advertise their labor dispute with said Tom Revels on the public sidewalks outside of plaintiff's property. ‘4. Plaintiff is entitled to a permanent injunction against defendant union, its officers and agents, enjoining said union, its officers and agents from trespassing or entering upon plaintiff's shopping center for the purpose of picketing and advertising its labor dispute with plaintiff's tenant, Tom Revels. ‘5. That this court has jurisdiction over the subject matter of this action. ‘6. That plaintiff is entitled to recover its costs incurred herein. ‘Let judgment be entered accordingly.’

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur.