Winco Foods v. Thayer CA4/2 (2021) · DecisionDepot
Winco Foods v. Thayer CA4/2
California Court of Appeal Feb 2, 2021 No. E072323Unpublished
Filed 2/2/21 Winco Foods v. Thayer CA4/2 See Concurring Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
“(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
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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
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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.
4
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendants' solicitation activities on the private property of a stand-alone grocery store were not protected speech under the California Constitution, as the store entrance was not a public forum. Consequently, the trial court properly denied the defendants' anti-SLAPP motions.
Issues
Did the trial court abuse its discretion in its management of the anti-SLAPP proceedings?
Is the solicitation of signatures and voter registration at the entrance of a stand-alone grocery store protected speech under the California Constitution?
Did the trial court err in denying the defendants' anti-SLAPP motions?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“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.”