Waremart Foods v. Union

• Decision Date: 16 February 2001
• Docket Number: No. C032746.,C032746.
• Citation: 104 Cal.Rptr.2d 359,87 Cal.App.4th 145
• Court: California Court of Appeals Court of Appeals
• Parties: WAREMART FOODS, Plaintiff and Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 588, Defendant and Appellant.

104 Cal.Rptr.2d 359

87 Cal.App.4th 145

WAREMART FOODS, Plaintiff and Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 588, Defendant and Appellant.

No. C032746.

Court of Appeal, Third District.

February 16, 2001.

Rehearing Denied March 9, 2001.

Nick C. Geannacopulos, San Francisco, Steven B. Katz, and Samuel McAdam, Sacramento, for Plaintiff and Appellant Waremart Foods.

J. Thomas Bowen, Steven L. Stemerman, Andrew J. Kahn, and Joni S. Jacobs of Davis, Cowell & Bowe, San Francisco, for Defendant and Appellant, United Food and Commercial Workers Union Local 588.

SIMS, Acting P.J.

Defendant United Food and Commercial Workers Local 588 (Union) appeals from an order granting a preliminary injunction restricting the Union's picketing activity at the retail store of plaintiff Waremart Foods doing business as WinCo Foods (Waremart).¹ The Union originally contended the injunction was unwarranted and overbroad under Code of Civil Procedure section 527.3, which limits trial court jurisdiction to enjoin specified acts relating to labor disputes.

Waremart cross-appeals insofar as the trial court denied Waremart's request for an injunction barring all Union activity from Waremart's premises.

At the oral argument in this case, the Union pointed out that new provisions of the Labor Code (§§ 1138-1138.5) had become effective on January 1, 2000, during the pendency of this appeal.² (Stats.1999, ch. 616, § 1, Assem. Bill 1268.) The Union argued that these new provisions applied to the preliminary injunction entered in this case and mandated reversal of the injunction.

We allowed the parties to file supplemental briefs addressing the possible application of the new Labor Code provisions. In its supplemental brief, the Union points particularly to the following portion of section 1138.1, which provides (in language substantially identical to a federal statute, 29 U.S.C. § 107):

"(a) No court of this state shall have authority to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, ... except after findings of fact by the court, of all of the following: [¶] ... [¶]

"(5) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection...."

Also cited by the Union in its supplemental briefing is new section 1138.3, which provides (in language identical in substance to 29 U.S.C. § 109): "No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute,³ except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of the restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of the specific act or acts as may be expressly complained of in the complaint or petition filed in such case and as shall be expressly included in findings of fact made and filed by the court."

The Union contends the instant preliminary injunction cannot stand because, inter alia, the trial court made no finding that public officers charged with the duty to protect Waremart's property are unable or unwilling to furnish adequate protection, as required by section 1138.1, subdivision (a)(5) (hereafter § 1138.1(a)(5)). The Union also contends the record contains no substantial evidence supporting any such finding.

We shall conclude that section 1138.1(a)(5) applies to measure the legality of the preliminary injunction, that the parties did not litigate the question whether public officers charged with the duty to protect Waremart's property are unable or unwilling to furnish adequate protection, that the trial court made no finding on the question, and that the record is inadequate to support an implied finding on the question, so that the order granting the preliminary injunction must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

In April 1999, Waremart filed a "COMPLAINT FOR DAMAGES, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION TO RESTRAIN UNLAWFUL PICKETING, THREATENING CONDUCT AND THE NUMBER OF PICKETS; DECLARATORY RELIEF; INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS AND WITH PROSPECTIVE BUSINESS RELATIONS; TRESPASS." The complaint alleged as follows:

Waremart's store in Antelope is a free-standing store that sells food and small household merchandise in a space of 50,000 square feet. The store sits on approximately 40 acres, owned by Waremart. The store has a "no distribution or solicitation" policy and posts signs restricting access to the premises to customers and suppliers.

On January 18, 1999, Waremart held the Grand Opening of the Antelope store. Apparently anticipating Union activity, Waremart informed the Union about the nosolicitation policy and, without waiving any rights, provided the Union with a written policy containing time, place and manner restrictions for activities on the premises.

In January 1999, Union agents came onto store property, failed to follow the restrictions, and refused to leave when asked to do so. Waremart believed the Union's objective was to gain recognition as a bargaining unit for Waremart employees. As alleged in the complaint, since January 1999, the Union has used illegal picketing and coercive means against Waremart, its employees, agents, customers, and other invitees, and had used illegal means to keep the public away from the store for the purpose of unlawfully interfering with Waremart's legitimate business activities. Every day except Sundays and an occasional day of bad weather, the Union's agents have engaged in picketing in front of the store entrance and on the sidewalks and driveways. At times, more than nine agents blocked access to the store. The Union's agents shouted threatening slogans in the faces of customers, employees, and other invitees, forced them to walk in the street, followed customers to their cars and recorded their vehicle license plate numbers.⁴

On April 2, 1999, the trial court issued a temporary restraining order (TRO), enjoining the Union's agents from (1) picketing within 15 feet of each other or of the store's doors, (2) intimidating, threatening, initiating physical contact with Waremart's agents and invitees, following them for purposes of intimidation or harassment, recording their license plate numbers, or (3) engaging in loud or boisterous conduct with drums, whistles, horns, etc.

Thereafter, Waremart moved the court for an order granting a preliminary injunction.

Waremart submitted declarations from various customers, attesting that members of the Union had harassed and intimidated them by writing down the license plate numbers of their cars, by aggressively proffering unwanted literature, and by yelling and making threats.

In opposition, the Union submitted declarations by Union members explaining or denying certain of the averments made in Waremart's showing.

The legal memoranda of the parties did not tender the issue whether public officers charged with the duty to protect Waremart's property were unable or unwilling to furnish adequate protection.⁵ Nor was this issue tendered by the oral arguments of either party made during the hearing on the preliminary injunction. The only evidence bearing on the issue and cited by the parties is as follows:

The Union cites evidence concerning only one incident, in the declarations of Union supervisor Darin Ferguson and Union representative Michael Guilford, who attested sheriffs deputies came to the store and cited Guilford for assaulting a customer.

Waremart responds by citing to a different declaration from Ferguson, attesting: "Although [Waremart] has called the police three times to t[ry?] and stop the rover [recording license plate numbers], the police have refused to take a report or intervene to stop the rover's activity."

Neither party cites any evidence in the record as to why the police refused to intervene, or what information they were given about the situation.

On April 21, 1999, the trial court issued its order granting the preliminary injunction. The trial court made extensive findings of fact, based on the documentary evidence.⁶ The trial court made no finding that public officers charged with the duty to protect Waremart's property were unable or unwilling to furnish adequate protection.

The trial court then issued a preliminary injunction enjoining and restraining the Union and its agents from various activities and conduct in the vicinity of Waremart's store. The preliminary injunction did not bar the Union completely from Waremart's premises.

The Union appeals from the preliminary injunction. Waremart cross-appeals insofar as the trial court declined to ban the Union completely from Waremart's premises.

DISCUSSION

The Union contends the preliminary injunction cannot stand because, inter alia, newly-enacted section 1138.1(a)(5) provides that no court of this state shall have authority to issue a temporary or permanent injunction in any case involving a labor dispute unless the court makes a finding of fact that the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection. The Union correctly notes that the trial court made no such finding in this case.

The initial question, then, is whether the newly-enacted statute applies to govern the legality of the injunction in this case.

The statute in question was enacted in 1999 as a part of Assembly Bill No. 1268 (1999-2000 Reg.Sess.) (Assembly Bill No. 1268). In United Food & Commercial Workers Union v. Superior Court (Gigante USA, Inc.) (2000) 83 Cal.App.4th 566, 99 Cal.Rptr.2d 849 [hereafter Gigante] the Second District recently held that Assembly Bill No. 1268 applied to a preliminary injunction issued before the new law took effect. (Id. at pp. 575-576, 99 Cal.Rptr.2d 849.) "[...