Opinion
A149613
02-28-2018
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. ORZELL LONG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CCH-16-578305) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Rules of Court, Standard 8.1, which provides that a memorandum opinion is appropriate when an appeal "rais[es] factual issues that are determined by the substantial evidence rule."
Orzell Long appeals in propria persona from a workplace violence restraining order. Because we conclude that substantial evidence in the record supports the lower court's decision to issue the restraining order, we shall affirm.
In a separate action from the one giving rise to this appeal, Long sued the City and County of San Francisco (City) for alleged violations of his civil rights. Deputy City Attorney Hunter Sims III represents the City in that lawsuit. The trial court granted summary judgment in the City's favor and Long appealed.
While Long's civil rights case was on appeal, Sims received a document from Long purporting to be a "third supplement to designation on appeal of additional material facts." The pleading filed by Long began with a quote from Romans 10:9: " 'That if thou shalt confess with thy mouth the YHWH Jesus, and shalt believe in thine heart that Elohim hath raised Him from the dead thou shalt be saved.' " As set forth in Long's pleading, Sims had promised to complete a review of Long's file before summary judgment was granted. Long complained that he had still not heard from Sims and that the City opposed his request for a mandatory settlement conference. Long attached to his pleading an unredacted version of Sims's deed of trust, which listed the name of Sims's wife, the couple's home address, the name of their bank, and information about their mortgage. Long also attached to the pleading a newspaper article that described the tragic murder of a young mother and the efforts to locate the mother's missing two-year old daughter. The crime reported in the newspaper article has no relationship to Long's civil rights suit.
After receiving a copy of the pleading, the City sought a workplace violence restraining order on behalf of Sims and his wife. The restraining order was sought under Code of Civil Procedure section 527.8, which permits an employer to seek a restraining order to prevent violence or threatened violence against its employees. The court granted a temporary restraining order and set the matter for hearing.
Further statutory references are to the Code of Civil Procedure.
In a declaration submitted with the application for a restraining order, Sims stated that he interpreted the pleading to be a threat to his safety and the safety of his family based upon the pleading's tone and content. He expressed concern because Long has a criminal history and because the pleading was "erratic and irrational." Sims repeated his concerns in testimony presented at the hearing on the restraining order and explained that he had taken steps to arm himself and keep his family safe.
In written submissions opposing the restraining order, Long stated that he publicized information about Sims "to get his attention," apparently to encourage Sims to engage in settlement discussions. Aside from his claimed purpose of getting Sims's attention, Long offered no explanation why personal information about Sims or an article describing a missing toddler and her murdered mother were relevant to any issues raised in his civil rights lawsuit. Long reiterated that he had still not heard whether Sims completed a review of his case. He also declared there was no evidence that he had committed any "factual act of violence" against Sims. At the hearing on the restraining order, Long did not offer any additional justification for the pleading served on Sims other than claiming that Sims's deed of trust is a public document that is not considered confidential.
After hearing the parties' testimony, the court entered a workplace violence restraining order protecting Sims and his wife. Among other things, the order after hearing requires that any contact between Long and Sims must be "reasonable and peaceable," and the order directs Long to stay at least 50 yards away from Sims's workplace and home. The restraining order is set to expire on July 22, 2018. Long timely appealed after his efforts to set aside the restraining order were unsuccessful.
Section 527.8 authorizes the trial court to issue a restraining order based upon evidence of either "unlawful violence" or "a credible threat of violence." (§ 527.8, subd. (a).) A " '[c]redible threat of violence' is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (§ 527.8, subd. (b)(2).) A "course of conduct" may include "sending correspondence to an employee by any means . . . ." (§ 527.8, subd. (b)(1).)
On appeal, we review a restraining order issued under section 527.8 "to determine whether the necessary factual findings are supported by substantial evidence." (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538.) "[We] resolve all factual conflicts and questions of credibility in favor of the prevailing party, and draw all reasonable inferences in support of the trial court's findings." (Ibid.)
Long contends there is no evidence he committed an act of unlawful violence. It is undisputed the City offered no evidence that Long actually engaged in unlawful violence but it was not required to do so. Its application for a restraining order was based upon a credible threat of violence, which is sufficient to support injunctive relief. (§ 527.8, subds. (a) & (j).) Long also argues there is no evidence he made a credible threat of violence or that he poses a threat of future harm to Sims. We disagree.
There was no legitimate reason for Long to obtain personal information about Sims and include it in a public filing served on Sims, even if that information is publicly available. Coupled with the alarming article about a murdered mother and her missing toddler, together with an inflammatory Bible verse about confession and salvation, the inclusion of Sims's deed of trust in the pleading served on Sims reasonably caused Sims to fear for his safety and for the safety of his family. By his own admission, Long conceded that he prepared the document to get Sims's "attention," apparently out of frustration that Sims and the City had refused to entertain settlement discussions. When Long's conduct is viewed as a whole, it was reasonable for Sims and the trial court to interpret the pleading as an implied threat that harm would come to Sims or his family unless he complied with Long's request to discuss settlement. Long's subjective intent is irrelevant. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 538.) All that is required is "statement made knowingly and willfully [that] would place a reasonable person in fear for his or her safety." (Ibid.) Despite Long's protestations that his intent was not to threaten Sims, he effectively admits that his conduct was knowing and willful. And his conduct would place a reasonable person in fear for his or her safety. Accordingly, we conclude the City presented sufficient evidence of a credible threat of violence.
As support for his claim that there is no evidence he poses a threat of future harm to Sims, Long cites the principle that injunctive relief for threatened workplace violence is not intended to punish past acts and should only be granted if there is a reasonable probability that the threatening conduct will persist. (See Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) Here, there is ample reason to conclude there is an ongoing, credible threat of violence.
Sims and Long continue to be adversaries in the ongoing civil rights litigation initiated by Long against the City. It is likely Sims and Long will come into contentious contact while the civil rights action is pending on appeal. And there is no reason to believe Long has abandoned his grievance about Sims's alleged failure to complete his review of Long's file, which appears to have motivated Long to get Sims's "attention" in the first place with an impliedly threatening pleading that served no legitimate purpose. Indeed, even in his briefing on appeal, Long still complains that the City refuses to discuss settlement of his civil rights case.
The cases relied upon by Long to support his claim that he poses no threat of future harm are inapposite. In Scripps Health v. Marin, supra, 72 Cal.App.4th at page 336, the court found no evidence that a patient's son who engaged in one act of unlawful violence against a health care provider was likely to commit further acts of violence against the provider because the patient had transferred her health care insurance to another company, rendering it unlikely the son would have any further contact with the health care provider that sought protection for its employees. Similarly, in Russell v. Douvan (2003) 112 Cal.App.4th 399, the court concluded there was no threat of future harm because two attorneys who had been involved in one physical altercation were no longer adversaries in the underlying action and did not otherwise regularly do business with or oppose each other. (Id. at pp. 400-401.) In this case, by contrast, Sims and Long remain adversaries who will continue to interact with one another. Under the circumstances, we conclude there is sufficient evidence to conclude that Long continues to pose a credible threat of harm to Sims and his family.
DISPOSITION
The July 22, 2016, workplace violence restraining order after hearing is affirmed. Respondents shall be entitled to recover their costs on appeal.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------