State Market of Avenal, Inc. v. SUPERIOR COURT OF KINGS CTY.

SHEPARD, J.

This is a petition for a writ of mandamus seeking a direction to the Superior Court of the County of Kings to hear and determine an action, in which action plaintiff (petitioner herein) seeks injunctive and other relief against allegedly unlawful picketing activity of defendants (the real parties in interest herein).

The record of the trial court brought to us by the parties herein shows that plaintiff therein filed a complaint alleging

inter alia

that plaintiff is engaged in a retail grocery business at Avenal, California; that it is not engaged in interstate commerce; that it purchases and sells all of its merchandise in intrastate commerce; that defendants are labor unions or officers thereof; that defendants combined to and did picket plaintiff’s place of business; that there is no labor dispute between plaintiff and defendants; that plaintiff’s employees are exclusively represented by a labor organization other than defendants; that defendants’ activities arise out of a controversy between two or more labor organizations as to which organization is entitled to represent, said employees in bargaining, or which organization has the right to have its members perform work of plaintiff; that plaintiff has suffered damage; and that it has no plain, speedy or adequate remedy at law. In a third cause of action plaintiff additionally alleges that defendants by their activity seek to prevent plaintiff

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from dealing with certain other grocery stores not owned or operated by plaintiffs, and with respect to which other stores the defendants do have a labor dispute. Defendants filed their general and special demurrer to said complaint but filed no answer. They moved to dismiss the action and to vacate an injunction on the ground that the court has no jurisdiction of the subject matter of said action in that the exclusive jurisdiction thereof lies with the judicial and administrative agencies of the United States. Nowhere in the pleading or affidavits is there any allegation that plaintiff in the action was engaged in interstate commerce, and the trial court’s finding that plaintiff was engaged in interstate commerce is completely and entirely without any support in the record before us. The demurrer was never ruled on. No motion was made for dismissal under Code of Civil Procedure, sections 437c, 453 or 581. Defendants have not pointed to any authority presently recognizing the procedure here followed. Since the decision in