*1 No. 23223. In Bank. July [S.F. 1975.] AMERICA, AFL-CIO, Petitioner, v.

UNITED FARM WORKERS OF COUNTY, CRUZ THE SUPERIOR COURT OF SANTA Respondent; INC., Interest. COMPANY, Real WILLIAM BUAK FRUIT Party *3 Counsel

Jerome Cohen and N. for Petitioner. Sanford Nathan Jakes, Rosenbaum, Okrand, D. Jill Mark D. Fred John O’Loughin, Curiae on Daniel C. and Remcho as Amici behalf Lavery Joseph Petitioner. for

No Respondent. appearance Interest. William S. for Real Marrs Party Opinion

MOSK, we consider the J. In thislabor constitutionality controversy orders issuance of of ex affecting temporary restraining practice parte interests, that the without substantial free seeking showing party speech reasonable, faith effort to afford made a good injunction As will to be heard. or counsel notice opportunity party opposing the ex issuance we conclude that temporary appear, the freedom of violates circumstances guarantees orders in such speech (1st Amends.) 14th & the United States Constitution of both (art. I, 2). State of California § Constitution 27, 1974, On can be summarized

The relevant facts briefly. September (hereinafter interest, William Buak Fruit real party Company filed a verified the fruit referred to as injunctive complaint company), declarations, in the Cruz relief, Santa three supporting accompanied as the defendants in Named herein). Court (respondent Superior (an America, AFL-CIO Workers of were the United Farm action as a labor association organization, functioning unincorporated *4 and certain of its members. in the instant proceeding), petitioner had that the defendants In its the fruit alleged complaint company with on its “mass at its orchards in and property, picketing” engaged with interfere thereat as to an of “such unduly aggregation pickets to such extent as . . . to and from said premises egress [and] ingress The molestation and violence.” induce fear of fruit reasonably physical had on its also that the defendants “trespassed” alleged company ... “for the company] coercing employees [fruit property purpose fear of . as to induce .. such a manner cease reasonably working [and] with the mass that in molestation.” It further connection alleged physical threatened, or caused to and the defendants had trespassing threatened, harm, or contin- with workers who bodily sought, accepted, ued work its orchards. The harvesting danger irreparable requisite relief was cited to potential injury support request injunctive with to be worth interference of an harvesting alleged apple crop $500,000. the value of the excess of The declarations supporting alleged and the affiants’ observation of mass picketing, apple crop, personal “coercion,” “threats,” and crew leaders and workers of by reports the defendants.1 by “trespass” notice, defendants, either was

None of given including petitioner, order, informal, of the for the or formal restraining request temporary counsel, before the and either in or as a result none person by appeared, 17, 1974, denied each of the 1(cid:127)The verified answer to the filed October complaint, the answer that Three declarations filed with alleged foregoing allegations. supporting line and violence or heard any any the affiant had been on had not witnessed picket of a initiated members threats of violence with the threats and exception violence and, one the fruit as of the affiants alleged, by labor one organization, competing foremen. company’s that had been unable no it fruit made trial The showing judge. company had counsel, did it that it their nor or defendants allege notify 30, 1974, the court On issued to do so. temporary September attempted ranch members at the order apple restraining limiting picketing Workers, and access United Farm camp migrant restricting first The were defendants located on the fruit company’s property. summons, with the when later notified of the served day proceedings order, cause.2 and order show restraining complaint, temporary 3, 1974, moved to dissolve the On October temporary petitioner that it had been ex on the issued restraining grounds unconstitutional, thus without notice to defendants and was any the fruit had not made a factual sufficient showing justify company motion, the order relief. court denied the continued injunctive in effect.

In this a writ of seeks commanding proceeding, petitioner prohibition Santa Cruz to refrain from or continuing Superior enforcing effect the order. temporary

An court initial arises because the mootness question superior with a replaced preliminary injunction temporary restraining *5 17, Proc., (See after an on 1974. Code Civ. October hearing adversary 527; Remedies, 87, 2 Witkin, ed. Provisional 1970) § Cal. Procedure (2d § contends, however, that in recent a number 1522.) Petitioner p. years and ex trial courts have issued enforced similar orders affecting parte not unusual. that the is asserts practice rights, a on Such orders can and do have critical and far-reaching impact duration, of this limited orders in state. Yet because of their this disputes issue of case nature review. Because this thus elude “poses appellate recur,” what has been we exercise broad interest that public likely (In re to resolve that issue.” described our “inherent discretion as 33, 737].) M. 473 P.2d William Cal.3d Cal.Rptr. [89 States this the United We are reinforced in conclusion Supreme in v. Princess Carroll Court’s of mootness contentions similar rejection defendants, 2The their and all at enjoined acting temporary restraining persons them, in from the fruit from direction or concert with entering upon company’s property, or or from vehicles entering leaving property, physically obstructing persons customers, or or contractors with fruit threatening physical injury company employees, also harm. The order limited the number or from such inflicting property damage, at fruit fruit or where the places company allowed at or near company property pickets workers, recruits, number of permissible pickets assembles or loads required certain at minimum intervals. at fruit to be allowed or near company property spaced 325, 89 S.Ct. There the Anne 393 U.S. 175 L.Ed.2d 347], [21 an ex validity parte temporary challenged procedural petitioners the continuation of a rally forbidding speeches held, alia, racial inter advocating supremacy. Supreme under attack the order had since issue of its although long expired, was not moot. from So. Pac. Terminal Co. v. Int. validity clearly Quoting Comm. Comm. 219 U.S. 498 31 S.Ct. 279], L.Ed. Justice [55 “ defeated, . Fortas consideration not to be .. ‘[judicial] explained, ought Id., orders, short term review. . . .’ capable repetition, yet evading (Id. at 515.” at L.Ed.2d at 330].)3 p. p.

We turn therefore to the merits of the Petitioner controversy. contends that the United States Court’s unanimous in holding Carroll v. Princess Anne (1968) 393 U.S. supra, compels invalidation of the order because it was issued ex temporary restraining reasonable, without a that the fruit made a showing company good faith effort to afford or the other or defendants their counsel petitioner notice and an to be heard. The Carroll condemns opportunity ruling such an ex when the order in affects First parte process question (See (N.D.Ga. Amendment also Anderson v. Dean 1973) 354 rights. 639, 642-643.) F.Supp.

While in factual circumstances the matter acknowledging Carroll, before us differ somewhat those in find from we reasoning that decision instructive on a number of It will be remembered points. 3We' are not oblivious to the distinctions which can be drawn between this case and First, Carroll on the mootness issue. that the Carroll it decision of the appeared Court of Maryland of the ex Appeals upholding validity parte temporary restraining order was a substantial role in the “continuing officials” play response omitted; Second, (Fn. 329].) activities. 393 U.S. at L.Ed.2d at petitioners’ p. treatment of the merits of the was Carroll controversy “particularly appropriate” *6 of the in the United States Court had announced Walker light requirement just 1824], L.Ed.2d 87 S.Ct. City U.S. Birmingham persons of an ex seek to the constitutional must seeking challenge validity parte injunction redress before of the order. But the rule in disobedience judicial contemplating is In a which California exceeds the and otherwise. this state affected order person by injunctive court has the choice of with the order jurisdiction issuing complying a it its or bringing judicial challenge, disobeying subsequently attacking validity (In when he is with re 68 Cal.2d 148-149 charged contempt. Berry 273,436 273].) P.2d Cal.Rptr. not, however, These distinctions do our is not determination this case negate We moot. find sufficient the to first distinction in the fact that in rejoinder requests trial courts California for ex in the orders First Amendment area are parte restraining and in to the second distinction note that our recurring, Berry those response intention in simply alternatives, was to afford affected such orders a choice of not to force persons by into disobedience of persons suspect injunctions attempting prolong so as to circumvent mootness barriers. controversy potential a the ex issuance of

that Carroll involved restraining temporary parte a the continuation of advocating rally speeches prohibiting ex issuance of a this case involves the racial temporary parte supremacy; labor labor and access migrant limiting picketing certain contends that While the fruit correctly camps. company other from the courts have treated differently respects Amendment, difficulties the First activities by arguably protected We focus in an ex are common to both areas. inherent parte proceeding first on these difficulties. procedural ex a

Two basic defects are The first is typical parte proceedings. law of factual and Not are facts and contentions. shortage legal only but the own is from defendant lacking, moving party’s presentation because no from the defendant is often abbreviated challenge anticipat- crucial, ed at this in the The as point proceeding. deficiency frequently factual and contentions from diverse reasonably adequate legal perspec- initial decision on whether or not tives can essential court’s circumstances warrant a order. temporary restraining case, the court had before it

In the present example, whose affidavits verified and three by signed persons complaint one-page the fruit those of interests company requesting paralleled precisely Furthermore, affidavits consisted in relief.4 these large part injunctive which, if and statements offered declarations testimony conclusionary However, trial, because the witness at could be excluded as a hearsay.5 by no was ex defense counsel had present proceeding opportunity counteraffidavits or argument. to make an is in

This lack itself opposing presentation opportunity ex Amend- to render First suspect parte proceedings affecting enough 4The affidavits were of the fruit a farm labor signed secretary company, contractor who had workers for the fruit and the fruit agreed supply company, foreman. ranch company’s The bias of verified and affidavits in labor possible parties signing complaints dispute cases and the forma nature of their factual have been long recognized by pro allegations Greene, (See, Frankfurter & commentators as source of difficulty. e.g., procedural 34-35, 65, (“The the facts Labor at Injunction necessity finding quickly pp. from embittered and colored at the start sources vague, partisan, passionate for rare It becomes an intensities of a labor calls at best judicial qualities. controversy, and affidavits of when solely upon complaint impossible assignment interested or judges rely Levin, (id 201)); at Aaron & Labor Injunctions witnesses” professional *7 42, 48-49.) (1951) 39 A Cal.L.Rev. Action: Five- Year Los Survey Angeles County 311, (1940) 16 L. No. 1067 Cal.2d P.2d 5See v. Retail Auto S. Union McKay alia, held, a that a must make clear and detailed 373], in which this court inter plaintiff relief, rule to a suit for facts applied showing specific justifying equitable in a labor injunction controversy. Carroll, out in ment As the United States rights. pointed a demonstration are difficult “The facts case any involving public and even difficult to evaluate. as to whether the ascertain more Judgment facts the use of the drastic turns on necessarily justify power injunction subtle and controversial considerations and delicate assessment upon of the situation in standards which are particular light legal In the absence of evidence and offered inescapably imprecise. argument both sides and of their in the of value formulation by participation there is insufficient assurance of the balanced judgments, analysis careful conclusions which are essential in the area of First Amendment (Fns. omitted; 393 U.S. L.Ed.2d 332].) adjudication.” atp. atp. The second defect which often in the ex issuance inheres major parte of a order First Amendment relates to the restraining affecting rights of such orders. Even if some is form of framing warranted, the fact that to circumscribe First party seeking Amendment is to assist in the of the order activity present drafting result in an which more than injunction sweeps broadly necessary violates First Amendment liberties.7

When activities the sensitive area of First Amendment enjoining freedoms, courts draft must orders “couched in the temporary restraining narrowest terms that will accomplish pin-pointed objective permitted constitutional mandate and the essential needs of the order.” public (Carroll, accord, at 183 of 393 U.S. 332-333 of 21 L.Ed.2d]; pp. [at United Farm Workers Committee v. Court (1971) Organizing Superior 556, 263, Cal.3d 483 P.2d In re 1215]; [94 Cal.Rptr. Berry 68 Cal.2d so if a supra, difficulty doing compounded court is unaided an opposing presentation. the two of an

Having catalogued elementary procedural shortcomings ex we turn now affecting rights, in which the order at issue analysis ways temporary restraining here affected such We conclude that did it so in two distinct rights. respects. 6For convenience we refer Amendment In so literary to “First frequently rights.” Indeed, we

doing no exclusive reliance States Constitution. as imply United upon Constitution, indicated we bottom infra, our conclusion on of the California provisions I, article section particularly thereof. 7See, for re the ex order invalidated in In Berry example, parte temporary restraining overbreadth, 68 Cal.2d and failure to afford due supra, vagueness, process.

910

First, the order affected First Amendment access to rights by limiting the labor on the fruit migrant The order camp company’s property. defendants, restrained and all at their direction or in persons acting them, concert with from the fruit entering upon company’s property, on which the farm labor including was situated. property camp Many courts have a First Amendment of access which recognized right belongs both to labor inhabitants and to union and camp organizers attorneys who seek to visit them. We are of those persuaded by reasoning decisions, and in their (Petersen of the First Amendment. join v. reading (5th Talisman 73; Cir. 478 F.2d 1973) Velez v. Sugar Corporation Amenta (D.Conn. 1250; 370 1974) Union, United Farm Workers AFL- F.Supp. CIO v. (D.Colo. Mel Finerman Co. 326; 1973) Franceschina F.Supp. (S.D.Ind. 833; 1972) 346 Morgan Hassle F.Supp. Folgueras (W.D.Mich. 1971) 615; but cf. re In Asociacion de F.Supp. (D.Del. de Puerto Rico Trabajadores Agricolas 1974) F.Supp. Recent cases noncustomers from centers are not excluding shopping For in Diamond v. Bland apposite. example, majority Cal.3d 521 P.2d made it 460], clear [113 Cal.Rptr. abundantly were not (id. the law labor at they fn. changing involving disputes A not, 3). course, of a housing facility equivalent prison block, Indeed, isolation here, to visitation. the trial impervious judge after reasonable ultimately holding adversary proceedings, permitted access to the farm labor private housing.8

Second, the order affected First Amendment rights by limiting The order all but a restricted number picketing. enjoined pickets, that number to be at certain required intervals. The fruit spaced contends order curtailed unlawful company picketing, therefore did not affect First Amendment freedoms.- The company that in instances in which violence is argues courts can issue ex alleged mass without parte injunctions into First prohibiting entering Amendment adjudication.

This leads to of a series of cases which the United argument analysis States Court and this court have each to define the attempted of First Amendment afforded to scope protection picketing—an activity the elements of which extend of the First beyond guarantees 8The issued preliminary several weeks later injunction modified total prohibition—in apparent response made objections arguments defendants’ counsel—to allow “two ... to enter persons where upon premises plaintiff company] provides [fruit farm labor between the hours housing and 9:30 p.m. to conduct p.m. peaceful discussions.” That such alteration in the restraint was later found desirable suggests have been might framed had both sides been heard differently originally.

911 however, of our these consideration For Amendment. present purposes, resolve, did the court in We nor is limited. are not decisions required determine, here of whether the Carroll injunction thorny problem with the i.e., whether its substance is itself issue comports justified, whether the First Amendment. We determine requirements affects, of Carroll is “in the ex or in the words challenged of,” the First Amendment. area activity protected United States and California Court have Many opinions and reaffirmed constitutional for recognized peaceful picket- protection (See, 1093, v. Thornhill Alabama U.S. 88 L.Ed. 60 (1940)310 e.g, ing. [84 1104, 736]; S.Ct. Carlson v. 310 U.S. 106 L.Ed. 60 (1940) [84 California S.Ct. Food v. 391 U.S. 746]; (1968) Plaza 308 Employees Logan [20 603, L.Ed.2d 88 S.Ct. In re Bell 19 Cal.2d 488 P.2d 1601]; (1942) 22]; [122 v. Workers’ Schwartz-Torrance & Investment Bakery Corp. Confectionery 233, Union 61 Cal.2d 766 394 In re (1964) P.2d 921]; Cal.Rptr. Berry [40 case, 68 Cal.2d as (1968) Thornhill is the but Justice supra, leading later, Frankfurter out 17 the broad of Thornhill pointed years language was reassessed in a series of decisions subsequently “sustaining injunc- . . tions . when was counter such against peaceful picketing picketing (Teamsters valid state in a domain to state policy open regulation.” 1347, 284, 1352, v. Union Inc. 354 U.S. 291 77 (1957) L.Ed.2d Vogt, [1 S.Ct. 1166].)

A reassessments reveals that Thornhill these cursoiy survey instance, a has in which California doctrine circumstances yielded, court which had unlawful enjoined objective peaceful picketing on the basis of race in force discriminate seeking employer 339 460 L.Ed. v. U.S. (1950) [94 hiring practices (Hughes Superior 985, was 70 S.Ct. found violation 718]), boycott secondary picketing v. 315 the Texas laws Union Ritter’s (1942) antitrust (Carpenters Cafe 1143, determined that 807]), U.S. L.Ed. 62 S.Ct. an Illinois court [86 with and extreme incidents violence picketing repeated intermingled (Drivers Meadowmoor necessitated the all Union v. enjoining picketing 552, 132 A.L.R. 1200]), Co. 312 U.S. 287 L.Ed. 61 S.Ct. [85 (Allen Local Wisconsin decided to forbid mass Bradley picketing S.Ct. Board 315 U.S. L.Ed. 820]), Washington [86 (Teamsters Union a sole court prohibited picketing against proprietor 631]), 13 A.L.R.2d 995, 70 S.Ct. L.Ed. 339 U.S. Hanke (1950) it which found and another court enjoined Washington their to choose coercive repre- bargaining against employees’ right U.S. 532 v. Gazzam Union Service sentative (Building *10 1045, 70 S.Ct. 784]). L.Ed. articulated therefore, state has whether this policy

The inquiry, in labor cases restraints on of allows the picketing which imposition prior our A review of of violence. or of violence mere threats allegations upon that we have contention the fruit adopted law case company’s negates Rather, we have denied free rule. picketing such a protection speech trial, has which, the court an after specifically in instances adversary trial, Short of such a intimidation.9 violence or found acts of physical has the defendant after curtailed or prohibited heard, has made a or the to be an had notice and applicant opportunity such notice. faith effort to reasonable and give good considers discussion controversy While the pending preceding United Amendments and Fourteenth the rubric of the First under the ex when we Constitution, the same result we reach subject States in the area of rights of a issuance restraining temporary parte 2, Constitution I, of the California section article defined by charter. Labor California under orgánizing scrutiny independent the free activities, are speech protected equally including picketing, (See, (1946) In re. of our state Constitution. e.g., provisions Porterfield re 706, (1947) In 91, 675]; 167 A.L.R. P.2d Blaney Cal.2d [168 Falk, Constitu- The State 643, 648 P.2d see 892]; Cal.2d generally 61 Cal.L.Rev. Ground (1973) A Than tion: More “Adequate” Nonfederal State Bills 273; an Activist Role Toward Rights Project Report: of for Lib. L.Rev. 271.) 8 Harv. Civ. Rights-Civ. in cases the fruit that involving possibility Finally, company argues Civil Code within the of of or meaning “great irreparable injury” for orders Procedure section restraining temporary applicants heard. to be to furnish notice and not be should required opportunity the essence that time is of agricultural emphasizes company harvested, a few can be lost if not an entire because crop, disputes cure the can that a trial court It further or weeks. adequately urges days an hearing an ex defects of by providing parte proceeding adversary 9See, 681-682 19 Cal.2d Beach Local No. 128 Steiner example, Long all picketing. this court an In 20], injunction prohibiting P.2d in which upheld to findings an trial and pursuant issued after adversary Steiner the injunction shadowing activity combined their picketing defendant union officers and members with wives, trucks of hauling employer’s their and the companies the strike replacements, directed and violence against assault with threats of physical repeated product, with rock-throwing. callers strike replacements, business employer’s order. These the issuance of temporary subsequently fewa as an inasmuch delay are contentions equivalent unpersuasive, can issued ex or weeks erroneously correcting days As court observed this the economic impact picketing. wholly destroy demonstrated “It has been context another labor in the controversy, has in labor usually disputes temporary injunctions granting the entire effect of controversy.” terminating determining 16 Cal.2d No. Auto. S. L. Union Retail supra, (McKay 330.)10 both our state and federal that in the context

We conclude present *11 or of of notice the demonstration Constitutions either the giving require a to do to issuance of a effort so restraining reasonable temporary prior involved, the Amendment Given the of First order.11 rights importance an this the for order is the burden which on applicant ruling places in faith He must make a reasonable effort good relatively merely slight. notice, fashion, or to either the to in either formal informal give must or be read defendant his counsel. This constitutional requirement the Civil Procedure section into basic Code of prescribed by procedure 527, which the relief.12 sets forth to obtain necessary injunctive steps

The will call for a to be circumstances ordinarily prompt opportunity heard; indeed, rare the be tense to on occasions situation sufficiently may fact 10Overfóur Felix Frankfurter and Nathan Greene this acknowledged decades ago the in for relief in of difficulties labor proceedings one major practical injunctive as n “The the situation not cannot so-called status the does quo; disputes: remain injunction preserve The of full equilibrium upon knowledge. suspension awaiting judgment strikers; strike, the affects the his efforts to defeat activities and the resumes employer Moreover, resumes from the of them free the interdicted interferences. suspension activities, and strike even defeat the strike for may purposes temporarily, practical not its even later lifted. Choice is between foredoom if the is injunction resumption, other. law’s to one side damage, and irreparable damage compensable is the conundrum which side should bear risk of unavoidable irreparable damage. the denial of the be to may improvi Improvident injunction irreparable complainant; the the defendant. For this situation issue of the be to irreparable injunction may dent ordinary Judicial error is too the are plainly inadequate. mechanics of provisional injunction proceedings of to perfunctory to either side a labor costly' dispute permit n determination instance, issues; even in it must searching.” of the crucial the first Greene, (Frankfurter & The Labor Injunction in cases in 11Wedecide that notice and to be are required here only opportunity heard are at free interests stake.-The protection which substantial speech the federal and state to labor is established by access and.peaceful picketing firmly camps 'decisions discussed above. i.e., instances, course, all of section remains other adequate procedure 12The which is the area of First when a Amendment freedoms 2; a outside seeks party temporary I, article section and defined in does not affect substantially rights California Constitution. an immediate conference with the If is a there justify judge. request by the defendant or his counsel for a reasonable time in which to respond affidavits, and shall exercise his discretion to complaint judge time, whether determine such additional with due for all grant regard involved, the factors of the and including complexities complaint affidavits, of the restrictions severity injunctive sought, exigencies controversy. of, to,

We are neither unaware nor insensitive possibilities If violence relief who is disputes. injunctive applicant counsel, with is threatened violence unable to the defendant or his notify so; his his affidavit attest to reasonable and faith effort to do good a trial that event court could with an ex properly proceed parte hearing Furthermore, a order. the time grant temporary restraining during notice without he is not applicant give attempting legal the criminal laws of our state violence of the protection: prohibit type here, law enforcement are available authorities complained those statutes. There is no reason to believe criminal sanctions apply are less deterrent to criminal than mere restraint. conduct civil any *12 short, out, In as the Carroll court there nois within pointed place or, of basic area freedoms the First Amendment we guaranteed by hold, I, Constitution, article section of the California for ex parte orders made that it not unless is was showing reasonably to or their counsel and afford them an possible notify parties opposing to be heard. opportunity

The alternative writ of served its is prohibition, having purpose, and the writ is denied. discharged, peremptory J., J., Tobriner, J., Sullivan, C. concurred. Wright, RICHARDSON, J. in I concur and in the judgment majority’s to the extent conclude that an ex should not be analysis they parte to restrain in with a activities connection employed decline, however, I to endorse the extension dispute. majority’s sweeping of that to all situations free “substantial principle affecting speech since interests” the circumstances in a case well particular might very ex an effect “substantial” justify parte despite proceedings arguably upon determine, “free interests.” The trial are to courts speech fully equipped discretion, issue, in an their sound whether or not ex order should broad, I and would refrain from undefined limitations imposing upon exercise that discretionary injunctive power. state constitu- reliance its I decline to also upon majority join First Amend- identical which are tional substantially provisions view, such reliance In Constitution. the United States ment my as an well be construed and could attempt very unnecessary totally Court. States action United review of our forestall due I concurthat does CLARK, J., and Dissenting. process Concurring under Code of Civil Procedure not notice compel every proceeding 527. Credit v. (See section Chrysler Corp. Waegele Cal.App.3d I concur with the further 914].) Cal.Rptr. majority’s holding [105 ex to issuance of an prior parte temporary restraining applicant notice, effort must demonstrate “reasonable faith to give good fashion, formal or informal to either the defendant or his either cases However, counsel.” notice to (Ante, 913.) limits p. opinion unnoticed substantial affecting rights, declaring are other (Ante, sufficient in all instances. proceedings constitutionally theWhy exclusivity? not limited The notice sound—should majority’s requirement—if This court a small class of First Amendment cases. possesses create inherent rules procedure. practice (People power see, 65 Cal. P. Greene Jordan 683]; e.g., Superior 37 Cal.2d 310-311 P.2d 821].) following dictate considerations that we expand majority holding opinion.

Consistent with traditional notions fair toward play opposing *13 130 v. Bellah 182 P.2d 511]), (1955) party (Whittlesey Cal.App.2d [278 heard, notice secures the to be ensures due v. (Link opportunity process 734, Co. 370 U.S. 82 1386]; Wabash Railroad 626 L.Ed.2d S.Ct. (1962) [8 Shelted, Crescendo v. Inc. 209 (1968) 267 Corp. Cal.App.2d Cal.Rptr. [72 neither nor relief. 776]), yet judicial delays proceeding impedes Indeed, at oral of informal notice was conceded argument, practice to be common.

The notice in First Amendment cases opinion requires attempted based on concerns of factual and contentions (1) shortages legal occur in ex results (2) parte proceedings, difficulty properly relief when side is But these one framing judicial presented. controversies, are concerns not exclusive to First Amendment instead in one or to all ex another applicable proceedings. being degree child or Whether involves repossession, picketing, dispute custody, 916 are function is best fulfilled when views commu- judicial competing

nicated in the early controversy.

No for exists unnoticed when justification allowing proceedings informal notice could be The have courts reasonably given. consistently been critical of unnoticed (See, Lummus v. proceedings. e.g., Company Oil 80, 83; Commonwealth Cir. 297 F.2d (2d 1961) Refining Company Railroad v. Workers Union Cir. Pennsylvania Company (3d Transport 693, 694; F.2d 278 Arvida v. 1960) Cir. (2d 1958) Corporation Sugarman 428, 259 F.2d 429.) California courts have labelled notice the “better Petroleum v. 99 (Macmillan (1950) practice” Corp. Grijfin Cal.App.2d 523, 526 P.2d and have on 69]), occasion mandated notice judicially [222 when notice has not been Hicks v. (See, statutorily e.g., prescribed. 211, Sanders 40 549].) 215 P.2d Cal.App.2d Finally, [104 said, United States Court has and a notice hastily “[I]nformal be are to to no notice at or all.” arranged hearing preferred hearing Foods, 423, 433-434, Goose Inc. 415 U.S. fn. Teamsters (1974) (Granny 435, 447, S.Ct. L.Ed.2d 1113].) [39 In we exercises of our often have procedure-making past power, federal looked to rules of San (See, practice e.g., guidance. City of Jose v. Court Cal.3d 453-454 Superior Cal.Rptr. 525 P.2d 701]; Cal.3d Vasquez Superior 796, 484 P.2d reveals that 964].) Here examination under Cal.Rptr. federal rules a that reasonable effort be made to notice give requirement Proc., is across the board. Fed. Rules Civ. rule (See 65(b).)1 applied this broad is made clear drafters principle underlying requirement “In of the rule: view of the drastic possibly consequences temporary order, heard, feasible, should be if before the opposition that, order is have insisted when time granted. Many judges properly does not formal notice of the the adverse permit application party, some such as for the notice adverse expedient, telephonic attorney notice, be resorted to if this can be [Ijnformal done.... party, reasonably which be communicated to the rather than the adverse attorney is no notice at all.” Committee’s Note to (Adv. party, preferred Amendment to Rule 39 F.R.D. This 65(b), 124-125.) principle *14 to state court and this court should equally applicable proceedings, follow the federal lead. 65(b) 1Rule in “A provides order be pertinent part: temporary restraining granted

without written or oral to the (1) notice adverse or his if it party attorney only clearly from facts or appears shown affidavit the verified specific by by that complaint loss, immediate and will irreparable or result to the before injury, damage the applicant course, not does mean notice this requirement, general Adopting indicated the instance. As notice will by actual every required circumstances of such rule, arise situations involving federal occasionally While notice would be unreasonable. that even attempted exigency to the would be establish rule the under the new required applicant his to effort circumstances and the reasonableness of these existence free notice, would then be to act ex court the parte. give Inapplicability Majority’s Case to Rule Its Own the new notice further inadvisability restricting requirement so, course, rule case. do in the the to this To seen difficulty applying affected the hold that “substantial free interests” were we must speech by This does the constituted a TRO. the opinion by concluding prior on and the restraint free (1) (2) by limiting impeding speech picketing the In to need to access to addition any camp. rejecting picketers’ notice, I find substantial Amendment interests First prior requiring the the order here such interests. suggestion infringed dispute Rather Than Restricted Free A. The Limitations Protected Picketing Interests Speech contained order issued the trial court

The temporary restraining on elements. It five (1) applicant’s essentially enjoined trespassing and and (3) (2) obstructing property, property, ingress egress Further, the or or inflicting threatening physical injury damage. property and, (5) limited number at pickets property imposed minimum intervals at which could be they spaced. that not of these five reveals one elements constitutes a

Analysis prior Instead, on conduct the First Amendment. restraint protected was effect of TRO preserve promote freedom.

The law is well-settled the First not sanction Amendment does which includes (see, on trespass infra, private property 908-912), No. (Lisse obstruction v. Local Union pp. ingress egress (1935) Cal.2d P.2d Chrisman v. Workers’ 314]; Culinary (Drivers Local P.2d violence 553]), Cal.App.2d or can attorney adverse his be heard attorney applicant’s party opposition, efforts, made to if have been give certifies court which writing any, and the reasons his claim that notice should not be required....” notice supporting *15 918 836, Union v. Meadowmoor Co. 312 U.S. (1941) 287 L.Ed. 61 S.Ct. [85

552, 132 A.L.R. 1200]; Steiner v. Beach No. 128 19 (1942) Local Long 676, Cal.2d 682-683 P.2d 20]), or threat violence v. (Steiner Long [123 of 128, Beach 676, Local No. 682; 19 Cal.2d v. Pezold supra, Amalgamated 120, etc. Instead, Workmen 54 123 (1942) P.2d all 611]). Cal.App.2d [128 will be when such conduct becomes picketing enjoined completely improper intertwined with it. three violence, first elements of the order (prohibiting trespassing, avoid future need to all access) terminate obstructing picketing

because the three the unlawful before otherwise enjoin aspects Therefore, becomes tainted. it be must concluded the protected activity First"Amendment rather effectively protected organizers’ right, than it. restricted

The effect of the last two elements of the order the number (limiting was also not to spacing picketers) abridge First, freedoms. these elements not served to restrain the expression ideas but to their As clear made the United give expression. Court, States manner regulation expression—so long as not constitute restraint. not functionally prohibitory—does prior Promotions, Ltd. v. (Southeastern Conrad 420 546 (1975) U.S. L.Ed.2d [43 448, 95 569, S.Ct. Cox v. 312 574 1239], New U.S. (1941) citing Hampshire 1049, 1052-1053, 762, L.Ed. 61 133 S.Ct. A.L.R. New 1396]; Poulos v. [85 395, 1105, 1115-1116, U.S. L.Ed. 73 S.Ct. Hampshire [97 760, 30 A.L.R.2d 987].) order, like the three first the last two

Second,, components ceases to be constitu essentially preserve picketers’ rights. Picketing where it coerces rather than informs. (Steiner tionally protected Long 128, 676, Beach Hence, Local No. 19 Cal.2d supra, picketing may when it becomes mass demonstration. enjoined (Auto intimidating 1162, Workers v. Wisconsin Board 351 U.S. L.Ed. S.Ct. 794]; Spear People Cal.App.2d P.2d on the total 445].) number By establishing ceiling picketers at one time and their present ability cluster—thereby limiting within shelter of the First Amend maintaining ment—this order the United Farmworkers’ again preserves ability its communicate While have these limitations message. properly reduced the effect of the it cannot be concluded intimidating message, it view of union’s communicate the small ability they impeded size of the grower’s property.

919 Picketers No Access B. Trespassing Right for of there exists conclusion rule the as a well-settled treats opinion the farmer’s onto union go organizers right Such is not the latter’s employees. unionizing attempt

private property and of States of the United Recent decisions case. limited clear that with private this court make right very exception the outsider’s transcends right expression. property to the can be an owner of “Before subjected property private n Amendments the First and Fourteenth commands of privately some, the functional must assume owned degree significant property Hardware 6o use.” (Central devoted attributes property public public 122, 128-129, 539, L.Ed.2d 407 U.S. Co. v. N.L.R.B. (1972) [33 accommodations between the values S.Ct. 2238].)2 “Although protected Fifth are sometimes [First, these three Amendments and Fourteenth] for the have shown a solicitude the courts special necessary, properly Amendment, held that a this court has never of the First guarantees free exercise or an uninvited general rights guest trespasser owned and used on nondiscriminatorily speech property privately 551, 407 U.S. v. Tanner (1972) only.” (Lloyd Corp. private purposes 131, 141-142, 92 S.Ct. 2219].) 567-568 L.Ed.2d [33 v. Alabama (1946) with Marsh The rule in the series of cases beginning v. 66 S.Ct. 276], 326 U.S. 501 L.Ed. extending Lloyd Corp. [90 Tanner, the Fifth is that the right private property, protected supra, Amendments, unwelcome is subordinated to an outsid and Fourteenth in the limited situation where (1) er’s First Amendment right only “to some the functional has assumed significant degree property use,” to be devoted to (2) attributes of thought public public property no reasonable relates communicated directly property, which the can be communicated. alternative means is available by thought (L Tanner, 551; Hardware Co. v. 407 U.S. Central loyd supra, Corp. N.L.R.B., 539; Plaza 407 U.S. Food Logan Employees supra, Alabama, 88 S.Ct. Marsh v. 1601]; U.S. 308 L.Ed.2d supra, of these three record that at least the first U.S. It is clear from the 501.) here; no attribute of the orchard bears is not satisfied requirements sole of ascertaining 2A onto the of another for the purpose may go property person at that location. message whether the latter would welcome the former’s noncommercial However, 862, 882].) S.Ct. (Martin v. 319 U.S. 141 L.Ed. Struthers no to remain. he is unwelcome on the he has right once the outsider is aware property, will of the “A can those who call at a home in defiance previously expressed city punish (Id., at occupant____” *17 N.L.R.B., v. Central Hardware Co. 407 U.S. (See public property. supra, 539; In re de de Puerto Asociacion Rico (D.Del. Trabajadores Agricolas Thus, the is 1974) 357.) right private property protected F.Supp. intrusion one his against asserting right speech.

In conclusion, the the avoids reaching contrary majority’s opinion further, even reference to these court decisions—and high substantially our recent decision v. in Diamond Bland 11 Cal.3d 331 disregards 468, 521 P.2d to Justice Mosk’s [113 Cal,Rptr. Contrary 460]. suggestion in his footnote 3 in v. Diamond Bland labor creates no majority opinion, from the rule discussed above. In the picketing exception distinguishing cases, labor Diamond out test, that one element of the pointed tripartite Diamond, absent in cases, was in those the was present namely, speech directed at the The other two of the test were picketed property. parts cases, met in the labor and there is footnote or the text nothing it that are labor cases from the accompanying indicating exempt test.3 truth of this conclusion best reflected in Justice tripartite Mosk’s own of the cases in his in Diamond v. analysis dissenting opinion Bland: “These decisions that an who emphasized employee sought his the attention of the and bring economic grievance public apply sanctions his could do so at the against employer effectively only place located, where the business was and that incidental any impairment the center owner’s was since theoretical shopping rights largely property he had his and his in the opened premises public right property ” Bland, was ‘worn thin 11 Cal.3d at (Diamond usage.’ public supra, J., is no (Mosk, there in either p. dissenting).) Clearly suggestion Diamond, footnote, or the cases discussed in its picketers encroach no attribute. private assuming property public conclusion,

In of its the relies on several contrary support opinion However, decisions of federal district most are the courts. not in point, either the town situation property company involving private resembling reads, that, “The on the unlike 3The text in basis distinguished Logan Diamond case, the situation in that the had no relation to for which the handbilling any purpose used, center and that had alternative being was shopping respondents adequate [fn. 3] views material on avenues to disseminate their the streets by distributing public (Id, 334.) sidewalks, at The footnote center.” surrounding those shopping including then states: a both Schwartz-Torrance Investment “By parity reasoning, Corp. Union, Lane, & Bakery Workers’ 61 Cal.2d In re Confectionery supra, supra, Cal.2d cases are likewise since in both unions had a labor distinguishable, labor with, and were businesses located within centers. The dispute picketing, shopping had cases a direct relation to businesses activity those affected by a factor led us to strike the balance activity, which between private property rights in favor of the activities latter.” to restrict his in Marsh v. Alabama or addressing employer’s ability At best it can to invite onto property.4 right people tenant-employee’s at the trial reflect a conflict in authorities be said the cases relied on decision, court recent based on court level—with most high above, of access does discussed constitutional decisions right declaring Rico, de de Puerto not exist. In re Asociacion (See Trabajadores Agricolas concern that the While the opinion expresses supra, F.Supp. *18 unwelcome not become prison, by allowing picketers camp self- corral majority’s holding may prove camp’s occupants, defeating.

McComb, J., concurred. 4We are to invite not concerned in this case with the of the resident workers right invitation, onto the have the union There no evidence of such nor any people property. to the TRO of their representatives suggested were ever welcomed during any prior they trips camp by any stay. occupants