Opinion
A130442, A130514
08-30-2011
NEILMED PHARMACEUTICALS, INC., Plaintiff and Appellant, v. ELMER CISNEROS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sonoma County Super. Ct. Nos. SCV247610, SCV247637
I. INTRODUCTION
In the midst of a labor dispute and picketing activity outside its facility, appellant NeilMed Pharmaceuticals, Inc. (NeilMed), on behalf of two non-striking workers, sought two workplace violence restraining orders (Code Civ. Proc., § 527.8) against one of the striking employees, respondent Elmer Cisneros. Cisneros filed a special motion to strike the petitions pursuant to section 425.16, which the trial court granted. On appeal, NeilMed contends the trial court erred in granting the motion because the petitions did not arise from constitutionally-protected activity. We will affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Strike at NeilMed's Facility.
In August 2009, after an election pursuant to the National Labor Relations Act (NLRA), Local 624 of the International Brotherhood of Teamsters (Union) was certified as the exclusive bargaining representative of approximately 120 employees of NeilMed. Cisneros was an employee of NeilMed and a member of the Union. Since at least the Fall of 2009, the Union and NeilMed had been engaged in a labor dispute.
The Union filed unfair labor practice charges against NeilMed with the National Labor Relations Board (NLRB). After investigation, the NLRB issued complaints against NeilMed on February 26, 2010, and on May 25, 2010. The May 25, 2010, complaint included allegations that NeilMed had retaliated against Cisneros for engaging in activity protected under section 7 of the NLRA, 29 United States Code section 157.
In May 2010, the bargaining unit employees began an unfair labor practice strike and daily picketing outside NeilMed's facility in Santa Rosa. Cisneros was integrally involved in union-related activities, including supporting union representation among the employees and obtaining the right to hold an election under the NLRA; he served on the Union's bargaining committee and as a strike captain. There was coverage of the labor dispute and strike in issues of the Santa Rosa Press Democrat between August 2009 and August 2010, in a nonprofit news magazine, and in a legal newsletter published by a national law firm. Cisneros was identified as a member of the Union's bargaining team and quoted in the May 20, 2010, issue of the Press Democrat. The August 2010 issue of the same publication included a photo of Cisneros, noting that he and other workers were "entering their fourth month of being on strike . . . ."
NeilMed's facility is located on Aviation Boulevard in Santa Rosa. Apparently, Aviation Boulevard has no sidewalks and is bounded by private property. The striking workers picketed in a circle on the side of the street, at the corner where Aviation terminates and a left turn onto an access road leads to the entrance of NeilMed's facility.
Jonathan Herdita is a temporary employee hired by NeilMed in approximately April 2010. According to Cisneros, throughout the strike, Herdita frequently sped down Aviation Boulevard on his way to work, including driving towards and close to the picketing employees. Rather than driving to the end of Aviation and making a left turn onto the access road, Herdita often chose to enter the access road by crossing the lane divide onto the left-hand-side of Aviation, against the flow of traffic, and veering diagonally toward or into the crowd of picketers. Cisneros states that Herdita was not the only employee who engaged in this behavior.
The Events of June 16, 2010.
On June 16, 2010, at around 9:00 a.m., the striking employees were congregated along Aviation Boulevard where it meets the access road. Herdita was driving down Aviation in his van. At this point, the parties' factual recitations diverge sharply.
According to NeilMed, to avoid hitting the picketers Herdita had to "carefully navigate his way towards the driveway." Cisneros "walked directly in front of Mr. Herdita's car, deliberately fell across the hood, and began pounding upon the windshield." Cisneros "is a large man, weighing approximately [300] pounds and he pounded the windshield until it broke." In his declaration in support of the petition, Herdita stated that he was driving "through a picket line of individuals who are picketing at NeilMed," including Cisneros, and going "very slowly so as to avoid hitting anyone." When he was "about [15] feet from NeilMed property, Elmer Cisneros jumped on the hood of my van, and began pounding on the windshield." He "continued to hit my windshield until it broke."
According to Cisneros, although the picketers were not blocking the intersection of Aviation Boulevard and the access road, Herdita steered his van to the left side of the street and into the crowd of picketers. He stopped for an instant and then began to move forward, brushing the leg of one of the picketing employees, Guadalupe Rico. Cisneros saw the van hit Rico, and he stepped in front of the vehicle and yelled at Herdita to "watch out because we are walking." Herdita accelerated into Cisneros' legs, causing Cisneros to fall forward onto the hood. Cisneros began grabbing for something to hold onto because, although a number of picketers yelled at Herdita to stop, Herdita kept driving with Cisneros lying on the hood. Cisneros hit the windshield while yelling at Herdita to stop. Herdita finally came to a stop, allowing Cisneros to get off the hood. The vehicle's windshield was cracked. Herdita got out of the car and the two men exchanged words, but no violence occurred and no threats were uttered.
Both men called the CHP, which dispatched an officer. Upon investigating the incident, the officer secured an agreement from Herdita and Cisneros not to press charges against one another, and Cisneros agreed to pay for the windshield. Then and there, overseen by the CHP, they each signed a settlement agreement. NeilMed's Workplace Violence Petitions.
NeilMed filed two petitions, one on behalf of Jonathan Herdita (Herdita petition) and the other on behalf of Maria Chavez (Chavez petition). The petitions were assigned two different case numbers in the trial court, proceeded to judgment, and arrived in this court as two different, albeit related, cases. The facts and legal arguments in the two cases are virtually identical, with the exception of the declarations submitted in support of each petition. We have ordered them consolidated for the purpose of this court's opinion.
On June 21, 2010, NeilMed filed a petition seeking a workplace violence protective order pursuant to section 527.8 and an application for a temporary restraining order on behalf of Jonathan Herdita. The petition indicated that NeilMed was preparing declarations for filing a second workplace restraining order against Cisneros.
NeilMed submitted two declarations in support of the petitions. As described above, Herdita declared that he was driving very slowly past the picketers "so as to avoid hitting anyone," and that when he was about 15 feet from NeilMed property, "Elmer Cisneros jumped on the hood of my van, and began pounding on the windshield." Herdita stated that Cisneros "continued to hit my windshield until it broke." Carolyn Ryzanych, the Human Resources Manager at NeilMed, stated that, since May 21, 2010, employees have been picketing at the entrance to the facility; that Cisneros had been on the picket line and had yelled various things at workers who crossed the picket line; that Cisneros is "a fairly large individual, and weighs about 300 pounds;" that Herdita had been a temporary employee at NeilMed since about April 2010; and that she was "aware of an incident" between Cisneros and Herdita in which Cisneros broke Herdita's windshield "by jumping on his car and punching on the windshield."
NeilMed's petitions stated that Cisneros assaulted Herdita and requested that the court order Cisneros not to "assault, batter, or stalk" Herdita, not to follow him to or from work or during work hours, not to telephone or send correspondence to him, and not to enter Herdita's workplace. NeilMed sought an order that Cisneros stay at least 50 yards away from Herdita's residence, place of work, and vehicle. NeilMed also asked the court to restrict Cisneros' picketing activity by requesting that "if Defendant wishes to picket against Plaintiff, that he be ordered to do while remaining on Brickway Blvd (Approx 50 yards from the NeilMed facility)." NeilMed averred that Cisneros' behavior was "escalating," and that NeilMed "is afraid that Mr. Cisneros will physically injure someone."
On June 24, 2010, NeilMed filed a petition and application for a temporary restraining order (TRO) on behalf of Maria Chavez, another NeilMed employee (Chavez petition). Chavez stated in a declaration that Cisneros yelled at her as she drove past the picket line on her way to work; that he struck her car with his cardboard picket sign; and that he beat on the trunk of her car as she drove past him. She also stated that, since becoming aware of the June 16 incident involving Herdita, she was afraid Cisneros would harm her or her car. The only other declaration submitted in support of the Chavez petition was the Herdita declaration discussed above.
Several witnesses stated in their declarations that Chavez was not present at the June 16, 2010, incident.
The Chavez petition was identical to the Herdita petition in stating that Cisneros assaulted Chavez and requesting that the court order Cisneros not to "assault, batter, or stalk" Chavez, not to follow her to or from work or during work hours, not to telephone or send correspondence to her, and not to enter Chavez's workplace. NeilMed also sought an identical order that Cisneros stay at least 50 yards away from Chavez's residence, place of work, and vehicle. Finally, NeilMed also sought an order restricting Cisneros' picketing activity, but the requested order specified that Cisneros be limited to picketing on a different street: "Plaintiff requests that if Defendant wishes to picket against Plaintiff, that he be ordered to do so while remaining on Skylane Blvd. (approx. 50 yards from the NeilMed facility)." NeilMed again stated that Cisneros' behavior was "escalating," and described the Herdita incident.
On June 22, 2010, the court (Commissioner Bonilla) issued an order to show cause and a TRO in the Herdita case, and set a hearing for July 6, 2010. On June 25, 2010, the court issued the same orders in the Chavez case. The orders were issued ex parte without notice to Cisneros. Pursuant to the Herdita TRO, Cisneros was permitted to picket only on Brickway Blvd. The Chavez TRO permitted him to picket only on Skylane Blvd.
On July 6, 2010, Cisneros filed a written response to the petitions, including his view of the facts and arguing that the petitions impermissibly interfered with his constitutional rights. In his declaration, he stated that Skylane and Brickway "are approximately a quarter mile apart from one another and run parallel to each other, and thus compliance with both orders is impossible and effectively deprives me of the ability to picket at all." He also disputed the statement by NeilMed in its petitions that Skylane and Brickway are both about 50 yards away from NeilMed's facility. Cisneros stated that "they are at least one-tenth of a mile away . . . with other large commercial buildings between the facility and those streets . . . ."
At the hearing on July 6, 2010, the court (Commissioner Bonilla) indicated that she had read Cisneros' response and stated that, had she heard from both sides initially, she would have set the matter for hearing and not issued the TRO's. NeilMed sought to keep the TRO's in place pending the hearing on permanent injunctions, but the court declined to do so and transferred the matter to the court's short-cause calendar for hearing on August 4, 2010.
At the August 4 hearing, the court (Judge Tansil) observed that the matter presented difficult constitutional issues. In view of the standard for issuing a workplace harassment injunction, i.e., clear and convincing evidence that threatening or harmful behavior in the future was likely, and the fact that there had been no further incidents on the picket line, the court was not inclined to rule in NeilMed's favor. After further discussion on the record, NeilMed agreed to dismiss the petitions.
Cisneros's Special Motion to Strike the Petitions.
On July 22, 2010, prior to the hearing at which the petitions were dismissed, Cisneros filed a special motion to strike the petitions (anti-SLAPP motion). The matter was fully briefed and set for hearing on October 5, 2010.
On October 5, 2010, the court (Judge Rushing) heard Cisneros's anti-SLAPP motion. The court granted Cisneros's requests for judicial notice and overruled all of NeilMed's evidentiary objections. Following argument, the court granted the motion as to both petitions and awarded attorney fees and costs. In ruling on the motion, the court did not explain its reasoning.
NeilMed filed timely notices of appeal on November 24, 2010, in the Herdita case, and on December 2, 2010, in the Chavez case.
III. DISCUSSION
A. Standards Governing Anti-SLAPP Motions to Strike.
" 'A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted . . . section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]' [Citations.]" (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477.) The Legislature directed that the anti-SLAPP statute "shall be construed broadly" to achieve its stated purposes. (§ 425.16, subd. (a).)
Section 425.16, subdivision (b)(1), states: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
Ruling on a section 425.16 motion is a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier))"First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 426.16, subdivision (e).' [Citation.]" (Navellier, supra, 29 Cal.4th at p. 88.) "Defendant need not establish that his action is constitutionally protected; rather, he must make a prima facie showing that plaintiff's claim arises from an act taken to further defendant's rights of petition or free speech in connection with a public issue. [Citations.]" (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 112 (Du Charme))
To determine whether the defendant has made this showing, the court looks first at the essence of the defendant's words or conduct for which the plaintiff is trying to attach liability. "[T]he statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; accord, Navellier, supra, 29 Cal.4th at p. 89.) The labels the plaintiff assigns to causes of action do not control the analysis: "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning." (Navellier, supra, at p. 92; Martinez v. Metabolife Internat, Inc. (2003) 113 Cal.App.4th 181, 187 (Martinez)["a plaintiff cannot avoid operation of the anti-SLAPP statute . . . through artifices of pleading . . . ."].)
In the present case, Cisneros contends his conduct falls into the following two categories of protected activity set forth in section 425.16, subdivision (e): "(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
If the defendant makes the threshold showing that the cause of action arises out of protected activity, then the court's second step is to determine whether the plaintiff has demonstrated a reasonable probability of prevailing on the claim. (Navellier, supra, 29 Cal.4th at p. 88.) "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) The plaintiff " ' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' [Citations.]" (Navellier, supra, 29 Cal.4th at pp. 88-89.) That showing, however, must "be made by competent admissible evidence within the personal knowledge of the declarant. [Citation.]" (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654 (Wollersheim), overruled on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In other words, the court must consider the plaintiff's complaint (Zamos v. Stroud (2004) 32 Cal.4th 958, 965), but the plaintiff cannot rely on the complaint's allegations to satisfy the burden of producing admissible evidence in opposition to a defendant's special motion to strike the complaint. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245 (Huntingdon); Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.)
In deciding the second part of the inquiry, "though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. 10.) The court must " 'accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)Tthe defendant's evidence prevails as a matter of law if it establishes a defense or negates a necessary element of the plaintiff's claim. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)
"Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at p. 89.) A trial court's rulings on a section 425.16 special motion to strike are subject to de novo review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) B. Section 527.8 Workplace Violence Petitions.
Section 527.8, the Workplace Violence Safety Act, enables an employer to seek an injunction to prevent violence or threatened violence against its employees. The statute provides, in relevant part: "Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer." (§ 527.8, subd. (a).)
"Unlawful violence" is defined as "any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others." The statute defines "[c]redible threat of violence" as "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, . . . and that serves no legitimate purpose." In addition, "[c]ourse of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose . . . ." (§ 527.8, subd. (b).)
"[T]he employer must demonstrate by clear and convincing evidence that it is reasonably likely such unlawful violence may occur in the future absent a restraining order. (§ 527.8, subd. (f); Scripps Health [v. Marin (1999)] 72 Cal.App.4th [324,] 335 [(Scripps Health)]['[T]o obtain a permanent injunction under section 527.8, subdivision (f), a plaintiff must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will occur in the future.']; id. p. 335, fn. 9 ['[T]he requirement of establishing the reasonable probability wrongful acts, or simply unlawful violence, will occur in the future guarantees that injunctive relief will be issued to prevent future harm instead of punishing past completed acts.'].)" (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 615 (Animal Defense League).)
Notably, the Workplace Violence Safety Act "does not permit a court to issue a [TRO] or injunction prohibiting speech or other activities that are constitutionally protected, or otherwise protected by Section 527.3 or any other provision of law." (§ 527.8, subd. (c).) Section 527.3 pertains to the jurisdiction of the courts to restrain or enjoin specified acts relating to labor disputes.
"[W]orkplace violence petitions in general, like civil harassment petitions, are subject to motions to strike under section 425.16." (Animal Defense League, supra, 135 Cal.App.4th at p. 617, citing Thomas v. Quintero (2005) 126 Cal.App.4th 635, 651.) C. First Step: Whether the Petitions Arise From Protected Activity.
NeilMed contends that Cisneros failed to make a prima facie showing that the petitions arose from activity protected by the anti-SLAPP statute, i.e., "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest," or "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(3), (4).)
1. Right of Petition or Free Speech.
Cisneros argues that NeilMed's petitions are based on his Union-related activities, i.e., striking, picketing, and protesting in the course of the labor dispute with NeilMed. He also argues that his statements to NeilMed, the NLRB, the media, and his co-workers about the strike and the organized employees' grievances are protected speech under section 425.16, subdivision (e)(4). We agree with Cisneros that the petitions are based on his activities in connection with the labor dispute, in particular his picketing conduct. The allegations of misconduct against him by Herdita and Chavez pertain solely to incidents on the picket line: hitting Chavez's car with his fists and his picket sign and pounding on Herdita's windshield while suspended on the hood of the moving vehicle. Our Supreme Court has repeatedly recognized that a labor union's legitimate or peaceful picketing " 'involves an exercise of the constitutionally protected right of freedom of speech.' " (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 859, quoting Schwartz-Torrance Investment Corp. v. Bakery & Confectionary Workers Union (1964) 61 Cal.2d 766, 769; see also, e.g., Park & Tilford Import Corp. v. International Brotherhood of Teamsters (1946) 27 Cal.2d 599, 602-603, 608 [union members' lawful striking, picketing, and boycotting activities are an exercise of the constitutional right of freedom of speech].) Thus, we conclude that the petitions arise from acts in furtherance of Cisneros' right of free speech. (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970 (Price).)
NeilMed concedes that picketing activities, including shouting and approaching vehicles, are constitutionally protected, but contends that its petitions were not based on Cisneros' picketing activities. Rather, NeilMed argues that it sought protection of its employees from Cisneros' "unlawful violence," specifically, "obstructing egress of vehicles;" "falling" (as characterized in the opposition to the anti-SLAPP motion) or "jumping" (as described by Herdita in his declaration and NeilMed in its briefs to this court) onto the hood of Herdita's vehicle and breaking the windshield; and hitting a vehicle with his picket sign and his fists. This conduct was not constitutionally protected, according to NeilMed; rather, it was illegal and, as a matter of law, not subject to the anti-SLAPP statute.
This argument has no merit. NeilMed's attempt to exclude Cisneros' conduct from the ambit of the anti-SLAPP statute by characterizing it as "illegal" fails because it is not apparent from the record that Cisneros engaged in illegal conduct, nor is there any concession by Cisneros that his conduct was illegal. (See Flatley v. Mauro, supra, 39 Cal.4th at p. 316 ["In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the [anti-SLAPP] motion must be denied."]; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296 ["the evidence conclusively establishes that the activities described at length in the complaint, and about which there is no dispute, are illegal as a matter of law. Indeed, [defendant] has conceded that the attacks on [plaintiffs] were unlawful."].) Moreover, "[t]he term 'illegal' in Flatley means criminal, not merely violative of a statute. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [(Mendoza)].)" (Price, supra, 195 Cal.App.4th at p. 971.) The Mendoza court explained: "[A] reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the constitutional interests which the statute is designed to protect . . . [and a] plaintiff's complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory prohibition . . . ." (Mendoza, supra, 182 Cal.App.4th at p. 1654.)
NeilMed also contends that it never objected to constitutionally protected activities on the picket line, and "only sought protection of employees when the violence by [Cisneros] . . . escalated to a level that simply can not [sic] be a protected activity." Accordingly, NeilMed argues that any references to arguably protected activity are only incidental to its claims, and such collateral allusions should not subject its petitions to the anti-SLAPP statute. (Martinez, supra, 113 Cal.App.4th at p. 188.)
In considering NeilMed's argument that any reference in the petitions to protected activity is merely incidental, we will examine its request that Cisneros effectively be precluded from picketing on Aviation Boulevard, since peaceful picketing is indisputably protected activity. In its opening briefs, NeilMed opines that the petitions were "as narrowly tailored as possible," and that they "[e]xplicitly recogniz[ed] [Cisneros's] right to picket but balance[ed] this right with the employee's right to safety" by seeking an order that he be limited to picketing on a specified street, Brickway Boulevard in the Herdita petition and Skylane Boulevard in the Chavez petition. NeilMed addresses this inconsistency in its opening brief in the Herdita case (again in the statement of the facts): "NeilMed's attorney later found out that though Brickway Boulevard is 50 yards from the facility, there is no direct access to the facility, and her reference to Brickway should have been to Skylane Boulevard. This is irrelevant to the issues in this case, however, [Cisneros] made much of this error in his pleadings."
Inexplicably, NeilMed presented these arguments in both opening briefs in its statement of the facts.
Turning to those "pleadings," in his special motion to strike, Cisneros argued that NeilMed's request in the petitions that he be required to picket at a different location gave rise to an inference that Cisneros' protected picketing activities were the real impetus for the petitions. He also pointed out that, when read together, the petitions would prohibit him from picketing altogether. NeilMed's response in its opposition to the special motion to strike was contained in a footnote: "It was only in error that one TRO stated he must remain on Brickway Blvd.; it meant to state that he remain on Skylane Blvd."
We note that NeilMed apparently made no attempt to correct the alleged error by filing an amended petition or taking some other corrective action. NeilMed also has not provided any information on when the error came to its attention. The Herdita petition contained the error, according to NeilMed, but it was filed several days before the Chavez petition, which specified Skylane. The petitions are virtually identical, with the exception of the street name, which suggests that when the Chavez petition was drafted, the error in the Herdita petition would have been apparent.
In light of the foregoing, the argument by NeilMed that any allegations referring to protected activity are merely "collateral allusions" or incidental' is disingenuous. It is abundantly clear that the principal thrust of the petitions was to prevent Cisneros from picketing on Aviation Boulevard in front of NeilMed's facility, if not to prevent him from picketing altogether.
Returning to the question of whether Cisneros' conduct was in furtherance of his constitutional right of free speech, not only is the legitimacy of Cisneros' conduct in question, but the parties also dispute whether Cisneros engaged in some of the (mis)conduct alleged against him. Cisneros denies that the picketers, including himself, blocked the access road, and denies that he ever hit Chavez's car with his picket sign or his fists. In addition, the parties present dramatically different explanations for how Cisneros came to be lying on the hood of Herdita's van and hitting the windshield. According to NeilMed, it was a violent attack against Herdita; according to Cisneros, it was an act of self-preservation to avoid being run over by Herdita. Where "a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Flatley v. Mauro, supra, 39 Cal.4th at p. 316.) Such a factual dispute exists here.
2. Public Forum.
Subdivision (e)(3) of section 425.16 includes the requirement of a public forum. It protects statements and writings "made in a place open to the public or a public forum in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) "A public forum is a place open to the use of the general public ' "for purposes of assembly, communicating thoughts between citizens, and discussing public questions." ' [Citations.]" (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130.) Cisneros' speech and protesting activity, including the incident involving Herdita, took place on Aviation Boulevard, a public street adjacent to NeilMed's facility. "[A] public street is a 'traditional public forum.' " (Huntingdon, supra, 129 Cal.App.4th at p. 1247.) NeilMed raises no argument to the contrary.
3. Public Issue or Issue of Public Interest.
We now consider the question of whether Cisneros' speech and picketing activity occurred in connection with a "public issue" or an "issue of public interest." (§ 425.16, subds. (e)(3), (e)(4). Section 425.16 does not define these terms, and "it is doubtful an all-encompassing definition could be provided." (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132.) In Du Charme, supra, 110 Cal.App.4th at page 115, we observed that " '[t]he definition of "public interest" within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]' (Damon [v. Ocean Hills Journalism Club (2000)] 85 Cal.App.4th [468,] 479 [(Damon)], citing Macias [v. Hartwell (1997)] 55 Cal.App.4th [669,] 674 [(Macias)]; and [Wollersheim, supra,]42 Cal.App.4th [at pp.] 650-651 . . . .) 'Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.' (Wollersheim, supra, 42 Cal.App.4th at p. 650 [citing product liability suits, and real estate or investment scams as examples]; also quoted in Macias, supra, 55 Cal.App.4th at p. 674 and Damon, supra, 85 Cal.App.4th at p. 479.)"
Although section 425.16, subdivision (e)(4), uses the terms " 'public issue' " and " 'public interest' " in the disjunctive, "there appears to be no substantive difference between them." (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) [1] 7:780, p. 7(II)-24.)
In Du Charme, we noted the distinction between "the majority of cases, which involve statements made in connection with a topic, person or entity of widespread public interest," on the one hand, and "a smaller group of cases in which First Amendment activity is connected to an issue of interest to only a limited but definable portion of the public, a narrow segment of society consisting of the members of a private group or organization," on the other. (Du Charme, supra, 110 Cal.App.4th at pp. 117-118, and examples discussed therein.) Damon and Macias both fell into the smaller group of cases. Damon involved allegedly defamatory statements about the manager of a homeowners association that governed 3,000 individuals living in 1,633 homes. The statements were made at a meeting of the association's board of directors and in its newsletter, and concerned whether to remain self-governed or to hire a management company and Damon's competence to manage the association in the context of board elections and recall campaigns, i.e., "a public debate about how the community would be governed in the future." (Du Charme at p. 116, discussing Damon, supra, 85 Cal.App.4th at pp. 471-473, 479.) Macias, also a defamation action, involved campaign statements on a political flyer distributed to union members during a campaign to elect its officers. The statements concerned Macias' qualifications to serve as president and the election affected 10,000 union members. (Du Charme at p. 116, discussing Macias, supra, 55 Cal.App.4th at pp. 671-672, 673-674.)
Importantly for present purposes, in Du Charme, we emphasized the point that "the allegedly defamatory statements in both cases were made not only in connection with an issue of interest to the members of the particular community, but also in the context of an ongoing controversy, debate or discussion within that community—a decision about future association governance in the former, an election of officers in the latter. The statements in Macias were designed to persuade union members to vote against a particular candidate for union office. In Damon, the statements were calculated to persuade members of the homeowners association to change its method of governance. Thus protection of the statements at issue in Damon and Macias serves the anti-SLAPP statute's purpose of encouraging participation in an ongoing controversy, debate or discussion." (Du Charme, supra, 110 Cal.App.4th at p. 118.)
Accordingly, we held that "in order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Du Charme, supra, 110 Cal.App.4th at p. 119.) The allegedly defamatory statement in Du Charme, a posting on the union's website that Du Charme had been terminated from his employment with the union for financial mismanagement, did not meet this standard because it was merely an informational statement, "unconnected to any discussion, debate or controversy." (Id. at p. 118.)
Here, the conduct at issue, Cisneros' picketing activities, was in connection with a labor dispute at NeilMed. In the declaration he submitted in support of the special motion to strike, Cisneros stated that the Union and NeilMed have been involved in an ongoing labor dispute since the Fall of 2009. Cisneros is a member of the Union and he allegedly sits on the Union's bargaining committee in what have been contentious negotiations with NeilMed for a first collective bargaining agreement (CBA) to cover the bargaining unit. On February 26, 2010, the NLRB issued a complaint against NeilMed alleging unfair labor practices in violation of the NLRA, including a charge that NeilMed unlawfully retaliated against Cisneros "for supporting the Teamsters when, on September 22, 2009, it issued a pretextual written disciplinary warning to me." The Union began picketing on or around May 21, 2010. Cisneros declared that he is a strike captain and has been a vocal leader in picketing activities during the strike.
Cisneros also described publicity the union-organizing, strike, and picketing have received, and attached copies of several articles. The August 2010 issue of the same publication included a photo of Cisneros, noting that he and other workers were "entering their fourth month of being on strike . . . ." On May 20, 2010, the Press Democrat published an article entitled, "Union walkout at NeilMed lab in Santa Rosa." The article stated that workers represented by the Union went on strike early that morning "after contract talks stalled amid charges of unfair labor practices." Cisneros was identified as "a NeilMed worker who serves on the union bargaining team," and quoted as saying, "We can't take it anymore." NeilMed has about 300 union and non-union employees, according to the article. About 50 workers picketed on the morning of May 20, 2010, and about 50 more were expected to join the walkout, according to a Union spokesperson. The article also provided information on alleged labor violations and the response of NeilMed's president. The August 2010 issue of the same publication included a photo of Cisneros, noting that he and other workers were "entering their fourth month of being on strike . . . ." Other articles include an August 14, 2009, Press Democrat article regarding the union certification vote won by the Union at NeilMed. The Union stated that "NeilMed workers supported the union because they were subjected to 'deplorable' working conditions at the company." The article also described an incident in February 2009 in which about 175 apparently undocumented workers "resigned voluntarily" according to NeilMed; were forced "to resign or have their cases turned over to federal immigration authorities," according to an attorney for the workers. On May 22, 2010, In These Times magazine published an article on the walkout and picketing. The online version included a link to the May 20, 2010, Press Democrat article described above. Lastly, Winston & Strawn's labor and employment practice newsletter for August 2009 ("Select events and news from the world of organized labor for August 2009") included the vote by NeilMed employees for union representation by the Teamsters.
Cisneros' picketing and protesting activities were in response to perceived unfair labor practices at NeilMed, and had the potential to impact working conditions at the company, an issue of interest, if not vital importance, to all of NeilMed's employees. The backdrop of the ongoing labor dispute clearly establishes the requirement articulated in Du Charme that "protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion . . . ." (Du Charme, supra, 110 Cal.App.4th at p. 119.) Unlike the posting on the union's website in Du Charme that the plaintiff had been fired for financial mismanagement, the statements and conduct here were not merely informational. Cisneros sought to persuade NeilMed's management to change its labor practices and to reach agreement with the Union on the CBA. We have no trouble concluding that this activity "warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Ibid.)
In addition, based on the public attention and media coverage the union vote and strike received, this case may also fit within what we described in Du Charme as "the majority of cases, which involve statements made in connection with a topic, person or entity of widespread public interest." (Du Charme, supra, 110 Cal.App.4th at p. 117.) We need not decide this question; however, the media coverage and other attention the case has received, outside of participants to the dispute, strengthen the conclusion that the First Amendment activity here is firmly connected to a public issue or an issue of public interest. Cisneros has met his threshold burden on the special motion to strike. D. Second Step: Probability of Prevailing on the Claim.
Because Cisneros has made the required threshold showing that the petitions arise from protected activity, the burden has shifted to NeilMed, and we now consider whether it has demonstrated a probability of prevailing on its claims. "To establish a probability of prevailing, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.] For purposes of this inquiry, 'the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' [Citation.] In making this assessment it is 'the court's responsibility . . . to accept as true the evidence favorable to the plaintiff . . . .' [Citation.] The plaintiff need only establish that his or her claim has 'minimal merit' [citation] to avoid being stricken as a SLAPP. [Citations.]" (Soukup, supra, 39 Cal.4th at p. 291.)
To obtain a permanent injunction under section 527.8, an employer must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will be repeated in the future. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526; Scripps Health, supra, 72 Cal.App.4th 324.)
"[T]he express codified purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act. (Civ. Code, § 3420; Code Civ. Proc., § 525.) Consequently, injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.] It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future. Indeed, a chance of circumstances at the time of the hearing, rendering injunctive relief moot or unnecessary, justifies denial of the request. [Citations.] Moreover, not only can injunctive relief be denied where the defendant has voluntarily discontinued the wrongful conduct [citation], there exists no equitable reason for ordering it where the defendant has in good faith discontinued the proscribed conduct [citation]. 'Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated.' [Citation.]" (Scripps Health, supra, 72 Cal.App.4th at pp. 332-333.)
Here, NeilMed has failed to establish that the petitions have even minimal merit because there was no showing whatsoever of a reasonable probability that Cisneros would engage in wrongful acts in the future. Assuming, without deciding, that the incidents described by Herdita and Chavez in their respective declarations rise to the level of "unlawful violence" within the meaning of section 527.8, there is simply no evidence of any "unlawful violence" or "credible threats of violence," or any misconduct whatsoever on the part of Cisneros after June 16, 2010.
At the hearing on July 6, 2010, the court stated that, had it been in receipt of Cisneros' response to petitions, she would not have issued the TRO's but rather would have set the matter for a hearing. The court vacated the TRO's, rejecting NeilMed's request to keep them in force pending trial, and set the matter for trial on August 4. On August 4, in the absence of any further incidents, the court strongly suggested that it would deny the petitions, at which point NeilMed opted to dismiss them. As we observed in Thomas v. Quintero, supra, 126 Cal.App.4th at page 663, "we are not required to ignore" subsequent proceedings that are relevant to the issue of whether there existed a probability that the plaintiff would prevail on its claim.
In addition, evidence submitted by Cisneros supports the conclusion there was no probability that NeilMed would prevail on its petitions. First, as an exhibit to his declaration in response to the petitions, Cisneros submitted a video recording of the June 16, 2010, incident. The video is several seconds in length and portrays the incident from the time Herdita is driving through the picketers just before he stops and Cisneros walks in front of the van, through the time Cisneros is on the hood and hits the windshield, and ends as Herdita stops the van and gets out, while Cisneros gets off the hood and moves away from the front of the van, and it appears that the two men are exchanging words (although we are informed by Cisneros that no violence or threats were exchanged between them; NeilMed does not dispute this account). Although the recording is not of high quality and has no sound, it is abundantly clear that Cisneros did not "jump" onto the hood of Herdita's van in order to violently attack him. Thus, it is difficult to imagine a court finding that this incident rises to the level necessary to support a workplace violence injunction. Second, also in his declaration in response to the petitions, Cisneros described the aftermath of the June 16, 2010, incident in which a CHP officer investigated and mediated a settlement between Herdita and Cisneros in which they both agreed not to press charges against each other and Cisneros agreed to pay for the damage to Herdita's windshield. This evidence was undisputed and supports an inference that the conflict between Herdita and Cisneros had been resolved.
Cisneros submitted the recording to this court in DVD format in a request to augment the record since the superior court did not produce a copy when transmitting the record. We overruled NeilMed's objections and granted the augmentation in a prior order.
In sum, there is no clear and convincing evidence that Cisneros engaged in unlawful violence or made credible threats of violence, and no evidence that irreparable harm would occur in the absence of an injunction due to the probability that unlawful violence or threats would continue in the future. (§ 527.8; Scripps Health, supra, 72 Cal.App.4th at p. 335.)
IV. DISPOSITION
The order appealed from is affirmed.
Haerle, Acting P.J. We concur:
Lambden, J.
Richman, J.