“ ‘Relief by injunction operates in futuro, and the right to it must be determined as of the date of decision by an appellate court.’ ” (quoting American Fruit Growers v. Parker, 22 Cal.2d 513, 515, 140 P.2d 23, 24 (1943
How later courts described this case
- “ ‘Relief by injunction operates in futuro, and the right to it must be determined as of the date of decision by an appellate court.’ ” (quoting American Fruit Growers v. Parker, 22 Cal.2d 513, 515, 140 P.2d 23, 24 (1943
Written by the judges who cited it.
The opinion
RICHARDSON, J.
I respectfully dissent. I agree with Justice Clark’s dissenting position to the effect that the majority has misread and misconstrued the Moscone Act (Code Civ. Proc., § 527.3) in holding that the act divests our courts of their historic and traditional equity jurisdiction to enjoin trespassory labor activities occurring on private property. In addition, however, it should be noted that the majority’s interpretation of the act renders it unconstitutional under controlling United States Supreme Court decisions which hold that a private store owner enjoys a federal constitutional right to reasonable protection from such trespassory invasions.
Thus, during an earlier stage of the very proceedings now before us, the United States Supreme Court expressly stated that “Experience with trespassory organizational solicitation by nonemployees is instructive .... While Babcock [Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105 ( 100 L.Ed. 975 , 76 S.Ct. 679 )] indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden *337 of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer’s access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the [National Labor Relations] Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity. [If] Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances.” (Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 205-206 [ 56 L.Ed.2d 209, 230-231 , 98 S.Ct. 1745 ], italics added and fns. omitted; see also Hudgens v. NLRB (1976) 424 U.S. 507 [ 47 L.Ed.2d 196 , 96 S.Ct. 1029 ]; Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 544-547 [ 33 L.Ed.2d 122, 127-129 , 92 S.Ct. 2238 ].)
Thus, the high court has instructed us in unmistakable terms that trespassory picketing of the nature involved herein is probably unlawful under federal standards. Yet the majority wholly ignores these standards in determining whether California courts have jurisdiction to enjoin such activity. It is uncontradicted that in the present case the union has failed to carry its burden, under Babcock, of showing a lack of reasonable alternative means of communicating its message. Nevertheless, the majority upholds the union’s activities solely in reliance upon a provision of state law which purportedly permits them to flourish unabated.
The majority’s holding assumes that the foregoing federal principle of accommodation freely may be modified, subordinated or even wholly ignored at the whim of state courts or legislators. According to the majority, this federal principle “rest[s] upon a statutory and administrative basis not found in California law.” (Ante, p. 330.) On the contrary, the federal principle discussed in Babcock, Central Hardware and Hudgens clearly is solidly founded upon the private property rights of the store owner, which rights derive not from any capricious or evanescent state statute or administrative ruling, but rather upon the rock-solid footing of the Fifth and Fourteenth Amendments to the United States Constitution. The accommodation principle painstakingly developed by the United States Supreme Court strikes a careful balance between the legitimate interests of organized labor and the constitutionally derived property rights of the owner. The high court in Babcock insisted that “Accommodation between the two [interests] must be obtained with as little destruction of one as is consistent with the maintenance of the other.” *338 ( 351 U.S. at p. 112 [100 L.Ed. at pp. 982-983].) Further, Central Hardware teaches that “the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the yielding’ of property rights it may require is both temporary and minimal.” ( 407 U.S. at p. 545 [ 33 L.Ed.2d at p. 127 ], italics added.)
In contrast with the Supreme Court’s carefully circumscribed formulation, the majority interprets the Moscone Act as stripping from California courts any jurisdiction to apply the balancing test of the federal cases. The “balance” is struck, in advance and uniformly, in favor of trespassory labor activity whether or not reasonable alternative means of communication exist, and whether or not these activities involve only a “temporary and minimal” yielding of the store owner’s property rights. As I have previously argued in a recent case involving similar federally protected rights of the private shopping center owner, the majority’s sole reliance upon state statutory or constitutional provisions or policy is entirely misplaced. Where there are available other reasonable means of transmitting the union message, such trespassory activity must yield to the “paramount federal constitutional imperative” protecting the property interests of the landowner. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 916 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ] (dis. opn.).)
I would affirm the order granting a preliminary injunction.
Clark, J., concurred.