SAN DIEGO (Legal Newsline) – A California appeals court has sent back an anti-SLAPP motion based on violation of First Amendment rights brought against a big-brand grocer by the operators of petition-signature-gathering companies.

In a Nov. 15 order, California 4th Appellate District Court agreed the San Diego County Superior Court erred in determining that Ralphs Grocery Co.'s complaint of trespass arose from activity protected by the anti-SLAPP (strategic lawsuit against public participation) that respondents/defendants Victory Consultants Inc. and Jerry Mailhot charged against the grocer.  

According to the opinion, Victory and Mailhot failed to show Ralphs' complaint of trespass arose out of their protected activity to petition in front of the two of the California stores since acts constituting trespass are not in fact protected activity.

“Although respondents argue that appellants are suing them based upon petitioning activity, which would typically be protected, such activity is occurring on private property,” Judge Richard D. Huffman wrote. "Respondents have provided no persuasive argument that their activity occurring on such private property is protected." 

Ralphs' complaint arose from Victory and Mailhot petitioning directly between its Lemon Grove and San Diego grocery stores and fire lanes, which allegedly interrupted commerce by obstructing fire lanes, hindering customers' entrance and exit to the grocer and following and harassing customers in the parking lot. 

However, the respondents did not see it that way, arguing they were simply exercising their constitutional rights, the opinion states. Law enforcement agreed with the respondents when called and did not remove them from the premises.

The incident led to Ralphs filing suit against Victory and Mailhot, alleging trespass and injunction to which the superior court granted a temporary restraining order that then barred respondents from petitioning in front of the Lemon Grove and San Diego stores. 

That temporary restraining order set in motion an order to show cause hearing, but was never heard since Victory and Mailhot filed an anti-SLAPP motion against Ralphs, alleging the store’s complaint came against their First Amendment and California constitutional rights, the opinion states.

Ralphs countered the motion, arguing that Victory and Mailhot’s anti-SLAPP statute was not relevant since their petitioning was on the stores' private sidewalk and apron, which would not be a protected area for free speech under the United States and California Constitutions. After considering Ralphs' opposition, the Superior Court granted the respondents' anti-SLAPP motion, but after much discussion, Huffman saw otherwise.

“In short, respondents have not carried their burden of establishing that the petitioning activity engaged in at the front of the two subject stores was protected for purposes of the first prong of our anti-SLAPP analysis," Huffman wrote. 

"Moreover, appellants provided undisputed evidence that the Lemon Grove store is in a retail shop development with a purpose to sell food products to customers."

Huffman determined in detail that both the Lemon Grove and San Diego stores do not offer “amenities like plazas, walkways or central courtyards and other gathering areas or attractions like theaters or entertainment amenities,” and “the invitation to the public to use the Lemon Grove store does not extend to people to meet friends, be entertained, or congregate for any purpose other than shopping.”

Due to demographics, Huffman dismissed the Superior Court’s motion for anti-SLAPP and reversed the order, noting Ralphs did indeed carry their minimal burden of showing the chance of success on its merits. 

“This case is remanded to the superior court with instructions to enter an order denying respondents' anti-SLAPP motion,” Huffman wrote, adding Ralphs is entitled to costs on appeal.

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