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Anti-SLAPP Motion Slapped
by Michael Blahy

Ralphs, Food – 4 - Less, and Foods Co. (Appellants) were successful in banning trespassers from harassing customers as they entered and left two of their San Diego California area stores.

The two stores, like all other Ralphs’ stores purpose is to sell food products and related goods to customers. They do not offer amenities or attractions that would entice friends to meet or people to congregate.

The individual stores have entrances that allow customers to enter the store or exit to the parking lot. There is a sidewalk or apron separating the store doors and a private driving lane that runs between the store and the parking lot. The curb and private driving lane in front of the doors is a designated fire lane. This allows customers to enter and quickly and safely exit the stores.

Ralphs has exclusive control over sidewalk/apron, entrances/exits and the store premises.

Victory Consultants and Mailhot, who is the sole proprietor of California Petitions, (the Respondents), are companies that gather signatures on petitions. They contract people to obtain signatures, and pay by the number of signatures obtained.

Ralphs alleges that typically, individuals working for the Respondents set up tables in front of the store, on the sidewalk and apron, obstructing customers as they enter or leave the store. The individuals stand in the fire lanes and follow customers into the parking lot.

After receiving complaints of harassment, the store employees asked the employees of Victory Consultants and Mailhot to leave. They refused saying that they were exercising their constitutional rights. Store employees called police to help, but they declined.

The Appellants hired a private investigator, Frank Mendez, who took photographs and spoke to the petition solicitors, who identified themselves as contractors for the Respondents, and they provided a business card for Victory Consultants and a piece of paper with Mailhot contact information.

Finally, Appellants filed a lawsuit against the Respondents claiming trespass and looking for an injunction.

A temporary restraining order was set, along with a show cause hearing as to why an injunction should not be granted.

Prior to the hearing, an anti-SLAPP motion was filed, by the Respondents, claiming that the original complaint arose from acts protected by the First Amendment to the U. S. Constitution and also the California Constitution. They also successfully opposed the evidence provided by the private investigator as hearsay.

The Appellants opposed the motion arguing that the anti-SLAPP statute does not apply, since the activity occurred on private property, and that the individuals were trespassing.

On the anti-SLAPP motion, the court sided with Victory Consultants and Mailhot.

Ralphs appealed.

The appeals court continued to exclude the discussion evidence provided by the private investigator as hearsay, but found the business card and piece of paper with contact information as admissible. The appeals court found that Ralphs was not trying to stifle free speech or petitioning activity, but protecting private property from unauthorized disruption, stating “setting up tables directly in front of the stores or private sidewalk areas; impeding fire lanes; obstructing customers' ingress and egress into the stores; standing in the way of fire lanes; following or chasing customers and scaring them; and harassing customers. Clearly, none of this activity would fall under the umbrella of anti-SLAPP protection.“

Also, “Appellants also allege that the solicitation is occurring on their private property where Respondents do not have the right to engage in any such activity. Therefore, according to Appellants, the allegations in the operative complaint do not target any protected activity because the solicitation occurred on private property and is not protected under the First and Fourteenth Amendments of the United States Constitution.”

Further “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.”

The disposition, “The order is reversed. This case is remanded to the superior court with instructions to enter an order denying Respondents' anti-SLAPP motion. Appellants are entitled to their costs on appeal.”

(Ralphs Grocery Company et al., v. Victory Consultants, Inc. et al. - (Super. Ct. No. 37-2015-00031668-CU-NP-CTL))

Decision: October 2017
Published: November 2017



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