# Sears, Roebuck & Co. v. San Diego County District Council of Carpenters

> California Supreme Court · September 14, 1979 · 25 Cal. 3d 317

URL: https://www.frixlaw.com/law-library/cases/9629204

## Case

- **Full name:** SEARS, ROEBUCK & COMPANY, Plaintiff and Respondent, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** September 14, 1979
- **Citations:** 25 Cal. 3d 317; 158 Cal. Rptr. 370; 599 P.2d 676; 102 L.R.R.M. (BNA) 2312; 1979 Cal. LEXIS 308
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Tobriner, Newman, Clark, Richardson
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629204

## Opinion text

CLARK, J.
I dissent.
I
As pointed out in our earlier unanimous opinion in this case, picketing occurred only on Sears’ parking lot areas immediately adjacent to walkways abutting the sides of the store building. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1976) 17 Cal.3d 893, 896 [ 132 Cal.Rptr. 443 , 553 P.2d 603 ].) The record reveals that on at least one occasion, a picket stopped a car in the parking lot by stepping in front of it. No evidence exists of picketing on the walkways. Nevertheless, because the majority are determined to treat this case as if it involved picketing on a sidewalk, the dissent must address the issue.
II
The Moscone Act expressly provides in Code of Civil Procedure section 527.3, subdivision (e); “It is not the intent of this section to permit conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a *334 labor dispute exists, or other similar unlawful activity.” Subdivision (a) provides that the provisions of subdivision (b)—dealing in part with picketing—are to be construed in accordance with “existing law.” While this language may not have been part of the legislation as proposed, it is part of the legislation as enacted, and must be given effect by all—including this court. Conversely, the fact that the original proponents of the act sought to exempt certain union activity from criminal statutes, furnishes no justification for refusing to enforce the clear legislative direction ultimately adopted.
The quoted language reinforced by legislative history makes clear that the Legislature in adopting the Moscone Act did not intend to exempt labor union conduct from existing criminal statutes. Indeed, it is difficult to see how the Legislature could have made its intent clearer. The majority’s argument—that the Legislature intended to make exemptions to the trespass statutes by failing to expressly mention trespasses—must be rejected.
When the Legislature has sought to exempt labor union conduct from trespass statutes (e.g., Pen. Code, § 602), it has indicated both the conduct and property to be exempted (Pen. Code, §§ 552-555.5, 602, subd. (n); In re Zerbe (1964) 60 Cal.2d 666 , 668 et seq. [ 36 Cal.Rptr. 286 , 388 P.2d 182 , 10 A.L.R.3d 840 ]), or has authorized an administrative agency to adopt rules specifying the exempt property and conduct (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 426-429 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ]). In contrast to the above statutes, the Moscone Act clearly expresses no intent to make exemptions to existing criminal law. Obviously, absent legislative authorization, this court is not free to adopt exceptions to criminal statutes for favored groups.
Endeavoring to find in the Moscone Act an exemption from trespass statutes, the majority—relying on the act’s reference to “existing law”— claim the reference includes two discredited decisions by this court. Both cases erroneously relied upon by the majority as declaring a right to picket on private walkways (Schwartz-Torrence Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 [ 40 Cal.Rptr. 233 , 394 P.2d 921 ], and In re Lane (1969) 71 Cal.2d 872 [ 79 Cal.Rptr. 729 , 457 P.2d 561 ]) are premised on the ground that picketing on private property involves rights protected by the First Amendment. That doctrine has been repudiated.
*335 In Hudgens v. NLRB (1976) 424 U.S. 507 [ 47 L.Ed.2d 196 , 96 S.Ct. 1029 ], the Supreme Court stated: “ ‘To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.’ ” (Id., at p. 517 [ 47 L.Ed.2d at p. 205 ].) Rejecting the claim that picketing on private property is entitled to constitutional protection, the court stated: “We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.” 1 (Id, at p. 521 [ 47 L.Ed.2d at p. 207 ].)
Because the foundations of Schwartz-Torrence and Lane have been repudiated, those cases either alone or in conjunction with the Moscone Act furnish no basis for establishing a right to picket on private properly. 2
While I agree generally with the majority that the Moscone Act prohibits injunctions against lawful picketing as determined by prior law, the statutory codification of judge-made law does not include decisions based on erroneous constitutional doctrines, subsequently repudiated by the courts.
In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 814 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], this court considered the specific codification of the contributory negligence doctrine—a common law or judicially created rule. The Li majority stated: “it was not the intention of the Legislature in enacting section 1714 of the Civil Code, as well as other sections of that code declarative of the common law, to insulate the matters therein expressed from further judicial development; rather it was the intention of the Legislature to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution.” On the basis of this analysis the majority concluded it was *336 free to repudiate the codified contributory negligence rule in favor of what it deemed to be a correct, more equitable rule. 3
As in Li, it may be assumed the Legislature when referring to “existing law” did not intend to freeze judicially declared law, especially when that law was based on erroneous constitutional doctrine.
Because the language of the act expressly demonstrates legislative intent not “to permit conduct that is unlawful,” and because we have no authority to create exceptions from the criminal trespass statutes, we may not authorize trespasses on private parking lots or private walkways.
The order granting preliminary injunctions should be affirmed.
Manuel, J., concurred.
In Hudgens the court stressed: “ ‘[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” (Hudgens v. NLRB, supra, 424 U.S. 507, 520 [ 47 L.Ed.2d 196, 207 ].) Thus, if the First Amendment requires Sears to open its private property to pickets, it must open its private property to all who wish to exercise First Amendment rights including demonstrators, political candidates, handbill distributors, and business competitors.
Once we recognize that the constitutional bases of Schwartz-Torrence and Lane are repudiated, the cases must be repudiated in toto. Absent constitutional requirement or legislative direction, we simply may not make exceptions to criminal statutes.
The Legislature, of course, is the proper governmental agency authorized to enact the laws of this state. If, however, in codifying judicially declared doctrine the Legislature intends to continue to recognize the judicial evolution of that doctrine then, as in Li, the courts may continue to develop and declare new concepts. They may do so, however, only because the Legislature intends that they do so. Should the Legislature express itself contrary to a judicially developed doctrine, courts are bound to give recognition to such expression of legislative intent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629204. Public record. Not legal advice.