Ralph’s Grocery Co. v. Victory Consultants, Inc., No. D070804 (D4d1 Nov. 15, 2017)
The trial court in this case granted an anti-SLAPP motion, dismissing a case where a grocery store sued paid petition signature gathering company for trespassing when it gathered signatures right outside the entrances to two grocery stores in San Diego.
There’s a threshold issue about some evidentiary objections. Apparently, the Store submitted a declaration in opposition to the motion, wherein the declarant—some kind of PI dude—testified that some of the petition gatherers told him that they worked for the Signature Company. The Signature Company objected on hearsay grounds. Somewhat inexplicably, the Store claimed that the statements were admissible as statements against interest under Evidence Code § 1230. But it made no showing that the gatherers were unavailable, so the exception didn’t apply.
What doesn’t make sense is why the Store didn’t argue that the statement was a party or authorized admission under Evidence Code §§ 1220 or 1222. Admittedly, the California rule is more circumscribed by the contours of an agent’s actual authority to speak than the equivalent federal rule in Rule of Evidence 801(d)(2). But is it really credible to claim that a paid signature gatherer isn’t authorized to say who he or she works for? Especially when the Signature Company gave the gathers business cards to hand out to other people who might be interested in getting a signature gathering gig?
Anyway, the more interesting aspect of the analysis is on the first element of the anti-SLAPP test. Signature Company claims that its signature gathering—even on the Store’s private property—is conduct in furtherance of the right to petition, protected under Code of Civil Procedure 425.16(e)(4). There is a substantial, albeit not entirely distilled, split in how to interpret this provision.
Some courts just ask, is the conduct in furtherance of the speech or petitioning right, in the sense that it “helps” the defendant express the right. In those courts, the fact that they conduct is not itself protected under the federal or state constrictions is of no moment, because that question gets answered in the second prong on the merits.
Other courts, however, actually look at whether the conduct is, at least to some degree, actually outside of the ambit of constitutional protection.
The first test tends to overprotect unlawful conduct that isn’t really entitled to constitutional protection—stuff like employment discrimination in media industries. The latter test runs afoul of some Supreme Court precedent that strongly suggests that the constitutional protected-ness of conduct goes to the second, merits, prong, not the “arising from” inquiry in the first step of the analysis. To date, no court has articulated a satisfying resolution of the issue, although a dissent by Justice Liu in a 2016 case comes close.
In any event, the Supreme Court is set to answer the question sometime in the next year in CNN v. Wilson.
Without so much as recognizing the split, the court here elects to use the second test, asking whether uninvited signature solicitation on private property is actually a protected form of petitioning. This depends on the application of the Pruneyard standard, which—somewhat unique to California law—holds that privately owned shopping areas can sometimes be public fora for the purposes of a First Amendment analysis. Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979).
Without much analysis, the court rejects the proposition—adopted by the trial court—that the Pruneyard analysis is “more appropriate for the second prong of the anti-SLAPP inquiry[.]” In doing so, it cites a few cases that asked, as part of step one’s arising from inquiry, whether a statement was made in a public forum. But those cases made that determination because a statement being made in a public forum is a textual requirement of “protected activity” under § 425.16(e)(3). See Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252 (2017); Cabrera v. Alam, 197 Cal. App. 4th 1077, 1087 (2011). But this can’t be an (e)(3) case because its not about what someone said. There is no comparable public forum requirement in § 425.16(e)(4). Indeed, one area where § 425.16(e)(4)’s catchall standard is often employed are for non-public forum statements that nonetheless address issues of public concern. So the cited authority doesn’t really support the point.
In any event, the court does its Pruneyard analysis and determines that the spaces right outside the entryways to the grocery stores are not public fora. Pruneyard applied to the common areas of malls where people congregate outside of the stores themselves. Pruneyard was decided in 1979—not exactly the highpoint of urban public space in California—and the court was concerned that much heretofore public space had undergone privatization when they paved paradise and put up a parking lot. But the decision wasn’t so broad as to hold that a commercial businesses has to take every comer who wanted to collect petition signatures in its doorways. So the Store property wasn’t a public forum, and the court holds that means that the case doesn’t arise from protected activity.
And even if it did, the store made out a prima facie case of trespass.
Reversed.
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