Health Smart v.
Filed 3/26/13 Health Smart v. Lyons CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
HEALTH-SMART DBA PACIFIC
HOSPITAL et al.,
Petitioners and Respondents,
v.
GREGORY ARISTOTLE LYONS,
Respondent and Appellant.
B237428
(Los Angeles
County
Super. Ct.
Nos. NS023726, NS023727,
NS023728, NS023758)
APPEALS
from orders of the Superior Court of the County
of Los
Angeles, Chet L. Taylor, Judge. Affirmed.
Gregory
Aristotle Lyons, in pro. per. and Andrew E. Smyth, for Respondent and
Appellant.
Fink &
Steinberg, Keith A. Fink, S. Keven Steinberg, and Olaf J. Muller for
Petitioners and Respondents.
>
INTRODUCTION
Respondent
and appellant Gregory Lyons (Mr. Lyons), a security guard, was terminated from
his employment at petitioner and respondent Healthsmart Pacific, Inc., doing
business as Pacific Hospital of Long Beach (Pacific). Mr. Lyons filed an action against Pacific
asserting a number of claims concerning his employment and termination. Pacific successfully moved for summary
judgment in Mr. Lyons’s employment action.
Thereafter, based on conduct it viewed as threatening, Pacific sought
restraining orders against Mr. Lyons to protect certain employees. Also based on perceived threatening conduct,
Fink & Steinberg, Pacific’s attorneys, sought restraining orders against
Mr. Lyons to protect its employees.
name="_ftnref1" title="">[1] The trial court issued permanent workplace
violence restraining orders against Mr. Lyons and in favor of Pacific and its
attorneys. Mr. Lyons appeals.
Mr. Lyons contends
that none of the restraining orders is
supported by substantial evidence and each of the restraining orders was issued
in error because his alleged threatening communications were made in the course
of litigation and thus were privileged.
Mr. Lyons also contends that a firearm restriction was not justified and
was issued without due process and the trial court was without jurisdiction to
enjoin his behavior with respect to persons not named in Pacific’s petition for
a restraining order. If there is
sufficient evidence to support the trial court’s findings, without regard to
Mr. Lyons’s evidence or credibility questions, and the trial court does not
abuse its discretion, we must affirm. We
are also required to resolve all factual conflicts and questions of credibility
in favor of the party that prevailed in the trial court and draw all reasonable
inferences in support of the trial court’s findings. If there is sufficient evidence that supports
the trial court’s findings, that there is evidence that might also be
reconciled with contrary findings does not justify a reversal of the orders.
based on the standard of review we are required by law to follow, our power
being limited, we must affirm.
BACKGROUND
On February
28, 2011, Pacific filed petitions for restraining orders against Mr. Lyons to
protect Tia Schiller, Pacific’s Vice President of Human Resources; Jennifer,
Pacific’s Human Resources Director; and Alicia.
On February 28, 2011,
Fink & Steinberg filed a petition for a restraining order against Mr. Lyons
to protect Mr. Fink and Ms. Hernandez.
8, 2011, Fink & Steinberg filed a petition for a restraining
order against Mr. Lyons to protect Mr. Muller.
A. Content of Ms. Schiller’s Declaration
In support
of its request for a restraining order to protect Ms. Schiller, Pacific
submitted Ms. Schiller’s declaration in which she addressed Mr. Lyons’s
employment and termination. Ms. Schiller
stated that Mr. Lyons worked as a security guard for Pacific for seven months
beginning in February 2009 and ending in September 2009. During his employment, Mr. Lyons received
verbal and written warnings concerning his failure to follow various Pacific
procedures. Pacific received complaints
from its security guard Martin Maldonado and from third party vendor Eladio
Chavez that Mr. Lyons made inappropriate comments, disparaged another employee,
and repeatedly called an employee during non-work hours. In August 2009, Jennifer informed Mr. Lyons that
his employment was suspended pending Pacific’s investigation of the various
complaints about him.
In the
course of Pacific’s investigation, one of Mr. Lyons’s supervisors expressed the
view that while Mr. Lyons initially appeared to be a diligent and hard working
employee who was eager to learn and follow security department procedures, but
then had engaged in increasingly odd
behavior on the job during the two months preceding his suspension.
Following
Mr. Lyons’s suspension, he communicated with Pacific’s President and CEO about
his suspension, made accusations against employees, and claimed racial
harassment and discrimination. Four days
after he was suspended, Mr. Lyons e-mailed Ms. Schiller demanding that Pacific
return his security officer badge and uniform immediately and that Ms. Schiller
help him “‘schedule a joint news conference as soon as your investigation is
over with I have all the same documents that I gave to you ready to release to
the report’s [sic].’†During his
suspension, Mr. Lyons continued to call an employee at all hours of the day and
night despite her repeated demands that he stop.
Pacific
terminated Mr. Lyons’s employment at the end of its investigation on the ground
that because he “displayed unacceptable unprofessional behavior toward vendors
and co-workers. This behavior includes
death threats and stalking.†Pacific
extended Mr. Lyons’s medical benefits for one month so that he could seek
counseling and treatment for his “obvious psychological problems.†After his termination, Mr. Lyons made copies
of his termination letter, which he posted around Pacific. In the months following his termination, Mr.
Lyons repeatedly was seen around Pacific.
B. Content of Jennifer’s Declaration
In a
declaration submitted in support of Pacific’s request for a restraining order
to protect Jennifer and Alicia, Jennifer stated that during Mr. Lyons’s
suspension, Mr. Lyons sent her several e-mails accusing her of violating
various laws. Two days after Pacific
terminated Mr. Lyons’s employment, Jennifer saw Mr. Lyons at Pacific. Around the same time, Mr. Lyons called
Jennifer and accused her of violating the law by suspending and terminating his
employment. Mr. Lyons claimed she would
be liable to Pacific for $5 million for terminating his employment. Mr. Lyons called Alicia and demanded
Jennifer’s personal cell phone number.
Shortly thereafter, Pacific and Jennifer were granted a temporary
restraining order against Mr. Lyons, but were denied a permanent restraining
order.
In January
2011, Mr. Lyons contacted Jennifer through her Facebook account and claimed
that Mr. Fink was demanding that he respond to a motion Mr. Fink filed in Mr.
Lyons’s employment action against Pacific that concerned Alicia’s “drinking
problem†and the number of times he reported her for being intoxicated at
work. Mr. Lyons stated that Alicia
should be left out of the “court battle.â€
Mr. Lyons said, “Fair is fair, but you[r] own attorney for the hospital
should not be bringing up your daughter, and making allegations against your
daughter, and now demanding that a Los [A]ngeles Superior Court Judge order me
to answer questions about your own daughter.
She seemed like a nice girl, I never knew her, and we really didn’t work
that much together. The press is getting
these exact same documents. If you guys
want to sling allegations against me ok.
But let[’]s leave Alicia out of the Wrongful termination case.†The same day, Mr. Lyons contacted Alicia
through her Facebook account and left a message addressing the same
subject.
Jennifer
stated that she was aware that Mr. Lyons was trained in the use of firearms,
owned several firearms, and was a United States Navy veteran. She further stated that Mr. Lyons had been
seen in recent months driving around Pacific wearing his former Pacific
security guard uniform even though he no longer worked there. Jennifer believed that Mr. Lyons had focused
his anger over his termination on her in particular and had made clear that he
would not leave her alone. She felt
“constant anxiety†that Mr. Lyons would appear at Pacific or at her home when
Alicia and her other children were present and feared for her and her family’s
safety.
C. Content of Mr. Muller’s Declaration
In Mr.
Muller’s February 28, 2011, declaration in support of Pacific’s request for a
restraining order to protect Jennifer and Alicia, Mr. Muller stated that Mr.
Lyons sent him a declaration on February 26, 2011, in connection with an ex
parte application in which Mr. Lyons stated that he had informed “law
enforcement of the criminal actions of all parties involved.â€
gave notice of the ex parte application by e-mail because he feared that
violence would break out once the trial court turned the matter over to the
District Attorney’s Office. According to
Mr. Lyons, he received death threats after reporting the parties’ criminal
actions to law enforcement and he would be forced to wear a bullet-proof vest
for the rest of his life.
Mr. Muller
believed that Mr. Lyons would attempt to attack or shoot him, other attorneys
or staff at his law firm, and Ms. Schiller, Jennifer, or other Pacific
employees for suspending and terminating his employment and for having his
employment action against Pacific dismissed.
Mr. Muller viewed Mr. Lyons’s declaration as an attempt to portray
himself as a victim and to justify any violent action by him as
self-defense. According to Mr. Muller,
Mr. Lyons’s e-mail messages to him in the prior two weeks had grown
increasingly angry and frantic.
Mr. Muller
attached to his declaration an excerpt from Mr. Lyons’s 2007 deposition in a
civil case in which Mr. Lyons testified that he had been charged with
conspiracy to commit murder in 1978. Mr.
Lyons testified that he hired someone to kill a defendant who was in jail
custody whom Mr. Lyons wanted killed because he had molested Mr. Lyons when Mr.
Lyons was a child. The perpetrator whom
Mr. Lyons hired stabbed the defendant in the eye while the defendant was being
transported to court on a bus. Mr. Lyons
believed that murder was justified in that case. The perpetrator received a life sentence at
Patton State Hospital, and the charge against Mr. Lyons was reduced to
assault.
D. Content of Mr. Fink’s Testimony
In November
2011, the trial court held a joint hearing on Pacific’s and Fink &
Steinberg’s petitions for restraining orders.
At the hearing, Mr. Fink testified that he had received numerous e-mails
and faxes from Mr. Lyons since April 2010.
At times, the faxes were so long—approximately 600 pages—that the fax
machine would run out of paper and turn off.
Some of the communications asserted that Mr. Fink and Mr. Muller wanted
to sexually attack him.
Mr. Fink
received an e-mailed declaration from Mr. Lyons in which Mr. Lyons declared
that he had purchased a bulletproof vest because he believed that Mr. Fink and
Mr. Muller had made death threats to him.
Because Mr. Fink had not threatened Mr. Lyons, he interpreted Mr.
Lyons’s declaration as a threat to shoot him.
A week prior to the hearing, Mr. Fink received a communication from Mr.
Lyons asserting that Mr. Fink would lose at the hearing and Mr. Lyons’s 9
millimeter gun would be returned to him.
Mr. Fink
testified that Mr. Lyons filed a petition for a restraining order in which Mr.
Lyons claimed to have “received scores of death threats and [to] have been
stalked by Olaf Muller and Keith Fink.â€
According to the petition, Mr. Lyons received no less than 80 death
threats between January 1, 2010, and June 16, 2011. Mr. Lyons stated that he had received over 75
calls from Mr. Muller and Mr. Fink. Mr.
Fink never made a death threat to Mr. Lyons and had not called Mr. Lyons. Mr. Lyons’s petition stated, “‘I have to put
up with Olaf Muller calling me and saying, “I will blow your head off. I will shoot you when you come out of your
house. You better watch your back as we
have you under surveillance and we can kill you at any time.â€â€™â€
Mr. Lyons’s
petition further stated, “‘The conduct of Olaf Muller and Keith Allen Fink has
increased to the point that both Olaf Muller and Keith Allen Fink have
continued to play a tag-team match, calling my home and making such sounds in
the phone as we want you to come out, fat boy, so we can shoot at your big
butt.’†The statement concerned Fink
enough that he paid a significant amount of money to install a security gate in
front of his house. In its ruling on Mr.
Lyons’s petition, the trial court in that case stated, “‘A thorough reading of
all papers submitted by petitioner causes the court to believe Mr. Lyons may
have some issues re mental health, i.e. claims of being sexually abused by
attorney Olaf and Fink.’â€
Mr. Fink
believed that Mr. Lyons was a threat to him because Mr. Lyons’s friend and
attorney Andrew Smyth told Mr. Fink that he had received e-mails from Mr. Lyons
that concerned him, one of which he forwarded to Mr. Fink. That e-mail attached a document that stated,
“You are ruined because of them strike back like a real man. Don’t be a little bitch.†The document said that certain employees at
Pacific, including Ms. Schiller and Jennifer, were laughing at Mr. Lyons. It further had remarks disparaging of Mr.
Lyons. Mr. Fink believed that Mr. Lyons
authored the document and believed that Mr. Lyons intended the document to
camouflage his actions after he harmed Mr. Fink or the other petitioners. Mr. Fink believed that the nature of Mr.
Lyons’s threats was escalating.
On four
occasions, Mr. Smyth e-mailed Mr. Fink advising him that the restraining order
proceedings were a mistake, that Mr. Lyons was mentally ill, and that if Mr.
Fink and the others continued with the restraining order proceedings Mr. Lyons
would “snap†and they would be harmed.
Mr. Smyth told Mr. Fink that in 2007 Mr. Lyons was angry with Mr. Smyth
and threatened to put him and his wife in a coma.
petitioners had escalated since he lost his employment action.
Mr. Lyons
threatened to have Mr. Fink arrested.
Mr. Lyons filed complaints against Mr. Fink with the state bar, the
F.B.I., and the District Attorney’s Office.
Mr. Fink was also concerned because Mr. Lyons appeared to be overly
preoccupied with every aspect of Mr. Fink’s life. Mr. Lyons sent e-mails to others concerning
Mr. Fink.
E. Content of Mr. Taylor’s Testimony
Randolph
Taylor, Pacific’s Risk Manager, testified at the hearing that he was contacted
about Mr. Lyons in September 2009, after Mr. Lyons exhibited “bizarre†behavior
that included harassing some of the female staff, making death threats against
one of Pacific’s employees, and brandishing a firearm. Ms. Schiller and Jennifer told Mr. Taylor
that they were afraid that Mr. Lyons would cause them great bodily injury. Pacific instituted new security protocols to
address Ms. Schiller’s and Jennifer’s fear.
Pacific blacked out the windows in its Human Resources Department
because Mr. Lyons had been seen many times walking within three feet of the
building that housed that department.
Jennifer’s office was moved from the outer perimeter to an interior part
of the building. Ms. Schiller and
Jennifer were permitted to park in the parking lot reserved for doctors, and
security escorted them to their cars.
With respect to the brandishing incident, Pacific employee Elio Chavez
told Mr. Taylor that Mr. Lyons brandished a firearm in an elevator and said
that if Mr. Chavez did not “act correctly,†he would end up in a grave “just
like another Mexican had.â€
F. Content of Dr. Glaser’s Testimony
Dr. Glaser
testified at the hearing concerning the factors that are considered in
assessing whether a person poses a threat for imminent dangerousness. Dr. Glaser testified that he was to examine
Mr. Lyons in February 2011 in connection with Mr. Lyons’s employment case
against Pacific. Dr. Glaser spent 90
minutes with Mr. Lyons. Mr. Lyons
refused to fill out any of the standard forms, to take any psychological tests,
or to answer any of Dr. Glaser’s standard forensic questions. Instead, Mr. Lyons went on a 90-minute “rantâ€
about how documents related to his employment case were forged and how
Pacific’s counsel in that action engaged in misconduct. Mr. Lyons stated that Mr. Muller and Mr. Fink
were attempting to slander him, ruin his career, and “possibly hurt him.†Dr. Glaser said Mr. Lyons’s tone was paranoid
and suspicious. Dr. Glaser was concerned
that Mr. Lyons had a psychotic disorder, but was then unable to make a
diagnosis as Mr. Lyons had not permitted him to perform a forensic examination.
Later,
based on his review of over four boxes or records that included a “slew†of
e-mails to Mr. Muller and others, Mr. Lyons’s behavior patterns going back to
1998 when Mr. Lyons threatened someone with a bomb, and Mr. Lyons’s attorney’s
telephone call to Mr. Muller warning him that Mr. Lyons was dangerous and
violent, Dr. Glaser opined that Mr. Lyons had a delusional disorder, paranoid
subtype.
Dr. Glaser
testified that the documents he reviewed included Mr. Lyons’s medical records
from Dr. Falcon. Mr. Lyons, representing
himself, objected that Dr. Falcon had not certified the medical records and the
records could have been altered. The
trial court overruled the objection, and Dr. Glaser testified that Mr. Lyons’s
belief that the medical records could have been altered was part of his
delusional disorder, persecutory subtype.
Thus, according to Dr. Glaser, Mr. Lyons had displayed in court one of
the symptoms of his psychotic disorder.
Dr. Glaser
said Mr. Lyons’s medical records showed that he had been prescribed the
anti-psychotic drug Seroquel. Dr. Glaser
testified that he had observed Mr. Lyons in the courtroom and noticed some
buccolingual movements that were consistent with tardive dyskinesia which can
only be caused by the use of an anti-psychotic medication such as
Seroquel. On cross-examination, Dr.
Glaser admitted that he saw no entries for Seroquel on Mr. Lyons’s records from
the CVS pharmacy in Torrance.
Among the
documents that Dr. Glaser reviewed included Mr. Lyons’s 2007 deposition
testimony in which Mr. Lyons related that he had been convicted as a juvenile
of a felony for ordering a “hit†on a man who allegedly sexually abused
him. Later, during his cross-examination
of Dr. Glaser, Mr. Lyons introduced an errata sheet for his deposition that
purported to “correct†his testimony and denied that he conspired to
murder. Dr. Glaser was not aware of the
errata sheet.
Dr. Glaser
reviewed the court transcript from a 1998 proceeding in which Mr. Lyons’s
co-worker sought a restraining order after Mr. Lyons made death threats against
the co-worker and her children.
According to Dr. Glaser, in assessing risk, threats from a person who
has a delusional disorder are “ominous†and a “red flag†for increased risk of
imminent violence. Dr. Glaser testified
that where there is anger driven by delusional thoughts, there is an increased
risk for violence. Later, during his
cross-examination of Dr. Glaser, Mr. Lyons told the trial court that he had
been in a relationship with the co-worker, she became angry when he married
another woman, and he agreed to allow the trial court to issue a temporary
restraining order against him even though his co-worker’s case had fallen
apart.
Dr. Glaser
reviewed some of the federal complaints Mr. Lyons had filed and asserted that
the documents showed a similar pattern of people wronging Mr. Lyons with
behavior that was illegal, improper, and threatening. Dr. Glaser said that Mr. Lyons’s
correspondence in the court files was significant in assessing Mr. Lyons’s
threat risk.
Dr. Glaser testified that Mr. Lyons prided
himself on his security work, and in connection with that work, Mr. Lyons had
certain grandiose ideas. Dr. Glaser
concluded that Mr. Lyons’s alleged psychotic thinking and behavior
“statistically, demographically and clinically†increased Mr. Lyons’s risk of
imminent violence.
Dr. Glaser
reviewed documents that Mr. Lyons submitted in June 2011 in support of a
petition for a restraining order against Mr. Muller and Mr. Fink in which Mr.
Lyons claimed that Messrs. Muller and Fink wanted to attack him. Dr. Glaser also reviewed the document that
Mr. Fink had received from Mr. Smyth. He
opined that the document was “concrete, hard forensic evidence of
dangerousness.â€
Dr. Glaser
testified that there is a strong link between stalking and physical
violence. Researchers had found that a
significant number of stalkers threaten and physically attack their
victims. Dr. Glaser viewed Mr. Lyons’s
conduct in sending e-mails, faxes, clogging up fax machines, sending multiple
copies of various complaints, and his use of the court system to be a form of
stalking. Dr. Glaser opined that Mr.
Lyons was a “bright†man which made him more dangerous. Mr. Lyons’s intelligence made the “web of his
conspiracy that much thicker.â€
G. Content of Mr. Lyons’s Testimony
Mr. Lyons
testified at the hearing that he was a good employee at Pacific. Mr. Lyons denied that he was prescribed the
medication Seroquel.
Mr. Lyons
explained that his dentist’s office was across the street from Pacific. Mr. Lyons had a tooth removed in May
2010. He parked down the street from the
hospital and walked to his dentist’s office.
He visited his dentist four times in connection with his extracted tooth. After each visit, he received an e-mail from
Mr. Fink asking why he was near the hospital.
Mr. Lyons believed that Mr. Fink was harassing and cyber-bullying
him.
Mr. Lyons
testified that Pacific’s petitions for restraining orders and Fink &
Steinberg’s restraining order with respect to Mr. Muller relied on declarations
that were considered and rejected in prior restraining order proceedings. The record on appeal in case number B237507
contains the October 6, 2009, reporter’s transcript from one of those
proceedings. In that proceeding, Judge
Joseph DiLoreto denied Pacific’s request for restraining orders—which orders
were to protect Ms. Schiller, Jennifer, and a third Pacific employee. In his ruling, Judge DiLoreto stated, “So at
this point in time, just not enough proof to prove, clear and convincing
evidence, that there is a course of conduct, threatening, etc. I’m sure everybody is upset, but he never
made threats to anybody, never threatened indirectly to do any harm to
anybody. He’s denied that. There is just no evidence.â€
Mr. Lyons
testified that when the trial court issued temporary restraining orders to
Pacific and Fink & Steinberg, the orders permitted him to use his firearm
in his employment, but he had to turn in his firearm to his employer at the end
of work each day. Mr. Lyons otherwise
had to turn in his firearm to law enforcement.
Mr. Lyons said that he refused to comply with the firearm restriction
and did not turn in his firearm to law enforcement until the trial court
threatened to hold him in contempt and incarcerate him.
H. Trial Court Restraining Orders
At the
conclusion of the hearing, the trial court issued permanent restraining orders
against Mr. Lyons for a duration of three years. Among other things, the trial court ordered
Mr. Lyons to surrender to a local law enforcement agency or sell to a licensed
firearms dealer within 24 hours any firearms he owned or possessed. It further ordered Mr. Lyons not to contact
the petitioners in any way or to enter their names in any internet search
engine. The trial court based its ruling
on all of the documents and pleadings in the court’s file. The trial court found that Mr. Lyons had
testified falsely, either intentionally or as a symptom of a delusional
syndrome as described by Dr. Glaser. The
trial court found Dr. Glaser to be “extremely†credible.
The trial
court found that Mr. Lyons presented a high risk of violence to any person who
contradicted Mr. Lyons’s version of events.
It ruled that petitioners had presented more than enough evidence to
show that they were reasonably in fear of violence from Mr. Lyons. Among other things, the trial court found
that the document attached to an e-mail, sent by Mr. Lyons, exhorting Mr. Lyons
to “do something†strongly suggested that Mr. Lyons was ready to take action. Mr. Lyons appealed.
DISCUSSION
I. Substantial Evidence Supports The
Trial Court’s Orders
Mr. Lyons
contends that the trial court’s orders issuing permanent workplace violence
restraining orders are not supported by substantial evidence. He argues Dr. Glaser’s opinion that Mr. Lyons
suffers from a delusional disorder and poses a threat of future danger is not
substantial evidence because, in forming his opinion, Dr. Glaser took Mr.
Lyons’s statements out of context and failed to consider that they were made in
the course of litigation.
name="_ftnref6" title="">[6] Further, Mr. Lyons contends, expert opinions
about future dangerousness are unreliable and inadmissible.
of Review
The court
in City of San Jose v. Garbett (2010)
190 Cal.App.4th 526, 537-538 stated the applicable standard of review as follows: “A ‘credible threat of
violence’ under section 527.8 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).)
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.’ (Scripps
Health v. Marin (1999) 72 Cal.App.4th 324, 335 [85 Cal.Rptr.2d 86].)
review an injunction issued under section 527.8 to determine whether the
necessary factual findings are supported by substantial evidence. (USS-Posco Industries v. Edwards [(2003)] 111 Cal.App.4th [436,] 444.) Accordingly, 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.)†The trial court’s decision to grant
injunctive relief rests within its sound discretion “and will not be disturbed
on appeal absent a showing of a clear abuse of discretion. [Citation.]â€
(Shapiro v. San Diego City Council
(2002) 96 Cal.App.4th 904, 912.)
Under the substantial evidence test,
we look only to see if there is such evidence favoring the respondents. “If this ‘substantial evidence is present no
matter how slight it may appear in comparison with the
must be upheld. As a general rule,
therefore we look only at the evidence and reasonable inferences supporting the
successful party and disregard the contrary showing.†(Pouler et al., Civil Procedure Guide,
California Law and Motion Authorities (2012) § 62.17.) One court has noted that the substantial
evidence test, “can require a reviewing court to affirm a factual finding which
the reviewing court does not regard as supported by a preponderance of the
evidence. Inherent in the substantial
evidence test is the proposition that a finding must be affirmed even
though the reviewing court considers it more likely than not that the finding
under review is incorrect, so long as that finding is supported by substantial
evidence.†(Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012,
1015.) Other decisions have reiterated
these principles. The Supreme Court in Shamblin
v. Brattain (1988) 44 Cal.3d 474 stated:
“Even though contrary findings could have been made, an appellate
court should defer to the factual determinations made by the trial court when
the evidence is in conflict.†(Id.
at p. 479, fn. omitted.) “‘[W]e have no
power to judge of the effect or value of the evidence, to weigh the
evidence, to consider the credibility of the witnesses, or to resolve conflicts
in the evidence or in the reasonable inferences that may be drawn
therefrom.’ [Citations.]†(Leff v. Gunter (1983) 33 Cal.3d 508,
518.) An appellate court is “not in a
position to weigh any conflicts or disputes in the evidence.†(Estate of Beard (1999) 71 Cal.App.4th
753, 778.) “Credibility is an issue for
the fact finder . . . we do not reweigh evidence or reassess the credibility of
witnesses. [Citation.]†(Johnson v. Pratt & Whitney Canada,
Inc. (1994) 28 Cal.App.4th 613, 622.)
We affirm a judgment if it is supported by substantial evidence, even
though substantial evidence to the contrary exists and would have supported a
different result. (Howard v. Owens
Corning (1999) 72
Cal.App.4th 621, 631.)
With regard to the abuse of discretion standard of
review for injunctive relief, “‘[d]iscretion is abused whenever, in its
exercise, the court exceeds the bounds of reason, all of the circumstances
before it being considered.’†(
557, 566.) A trial court only “exceeds
the limits of legal discretion by making an arbitrary, capricious or patently
absurd determination.†(
65, 71.) This is the most stringent
standard of review. These are the
principles we are obligated to follow on reviewing the trial court’s decision.
Principles
Pursuant to
section 527.8, subdivision (a),
name="_ftnref7" title="">[7] an employer may seek an
injunction on behalf of its employees to prevent threats or acts of
violence. (Scripps Health v. Marin,
supra, 72 Cal.App.4th at p. 333.)
Section 527.8, subdivision (a) provided, “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.â€
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 “‘[c]ourse of conduct’ is a pattern of
conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose, including following or stalking an employee
to or from the place of work; entering the workplace; following an employee
during hours of employment; making telephone calls to an employee; or sending
correspondence to an employee by any means, including, but not limited to, the
use of the public or private mails, interoffice mail, fax, or computer
e-mail.†(§ 527.8, subd.
(b)(3).) A threat may be conveyed by
conduct or speech. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 539.)
Section
527.8 does not require that an employee show that the threatened violence is
directed at a particular employee. (
111 Cal.App.4th at p. 443.) Instead,
“[a]n employer may seek relief under section 527.8 on behalf of any employee
who is credibly threatened with unlawful violence, whether or not that employee
is identified by the defendant.†(
of Evidence
As noted
above, in assessing the sufficiency of the evidence supporting the trial
court’s findings, under the required standard of review, we do not consider Mr.
Lyons’s evidence. The evidence set forth
above submitted by the petitioners was sufficient to support the trial court’s
conclusion that Mr. Lyons engaged in a course of conduct that constituted a
credible threat of violence against Ms. Schiller, Jennifer, Alicia, Mr. Muller,
Mr. Fink, and Ms. Hernandez within the meaning of section 527.8. That is, based on that evidence alone, Mr.
Lyons’s conduct would have placed a reasonable person in fear for his or her
safety or the safety of his or her family.
(§ 527.8, subds. (b)(2) & (3); Scripps Health v. Marin, supra,
72 Cal.App.4th at p. 333.) Petitioner’s
evidence was that Mr. Lyons owned a firearm and a bullet-proof vest and spoke
about death threats and the eruption of violence; Ms. Schiller and Jennifer, who
worked in the Human Resources Department at Mr. Lyons’s former employer
Pacific, were natural targets for any violence by Mr. Lyons; Mr. Lyons
apparently authored a document stating that he had been “ruined because of
them†and accusing Ms. Schiller and Jennifer of laughing at him and exhorting
him to take action; Mr. Muller and Mr. Fink represented Pacific in Mr. Lyons’s
unsuccessful employment action against Pacific and thus also were natural
targets for any violence by Mr. Lyons; and Mr. Lyons believed that Mr. Muller
and Mr. Fink wanted to sexually assault him and had threatened to kill
him. With respect to Alicia and Ms.
Hernandez who were not the focus of Mr. Lyons’s greatest attention, section
527.8 does not require that an employer show that the threatened violence is
directed at a particular employee. (
111 Cal.App.4th at p. 443.) The employer
only has to show that the employee is credibly threatened with violence. (Ibid.) Petitioner’s evidence was that Alicia is
Jennifer’s daughter and a Pacific employee; Mr. Lyons contacted Alicia and
Jennifer in connection with his employment action; and Ms. Hernandez was a Fink
& Steinberg employee and represented Pacific in Mr. Lyons’s unsuccessful
employment action against Pacific.
With
respect to Dr. Glaser’s testimony, Mr. Lyons quotes People v. Murtishaw (1981) 29 Cal.3d 733, 767 (Murtishaw), superseded by statute on another ground as stated in
772-773, for the proposition that the California Supreme Court has held that
the opinions of expert witnesses about future dangerousness are
unreliable. In that case, the Supreme
Court held that a trial court erred in admitting the testimony of a psychopharmacologist
at the penalty phase of a death penalty case that a murderer would continue to
be violent in prison if incarcerated. (
767.) The court stated that “ (1) expert
predictions that persons will commit future acts of violence are unreliable,
and frequently erroneous; (2) forecasts of future violence have little
relevance to any of the factors which the jury must consider in determining
whether to impose the death penalty; (3) such forecasts, despite their
unreliability and doubtful relevance, may be extremely prejudicial to the
defendant.†(Ibid.)
The
Supreme Court’s decision in Murtishaw,
supra, 29 Cal.3d 733 was based on considerations unique to death penalty
determinations and thus has no application here. (Id.
at pp. 770-771.) Moreover, in
expert witness opinions are admissible to show future dangerousness in other
contexts, stating that “courts have upheld admission of opinion testimony
forecasting future violence . . . [when] required by statute to determine
whether a person is ‘dangerous.’
[Citations.]†(
employer show future harm, is a statute that requires the trial court to
determine whether a person is dangerous.
(See Scripps Health v. Marin, supra, 72 Cal.App.4th at p. 327
[“to obtain a permanent injunction under section 527.8,
that defendant engaged in unlawful violence or made a credible threat of
violence, but also that great or irreparable harm would result to an employee
without issuance of the prohibitory injunction.
Because the record lacks any evidence that Marin posed a threat of
future harm to any Scripps Health employee, we accordingly reverse the orderâ€];
City of San Jose v. Garbett, supra,
190 Cal.App.4th at p. 542.) Finally,
even if the trial court should not have considered Dr. Glaser’s testimony, the
remaining evidence was sufficient to support the trial court’s restraining
orders. Again, in determining the
sufficiency of the evidence, we do not consider contrary evidence.
Abuse of Discretion
Based
on the trial court’s findings, we cannot say that the trial court’s ruling
granting the permanent restraining orders was arbitrary, capricious, or
exceeded the bounds of reason.
II. Litigation Privilege
Mr.
Lyons contends that all of the communications he allegedly made were privileged
under Civil Code section 47, subdivision (b) because they were made in the
course of litigation in connection with his underlying employment action
against Pacific or in connection with Pacific’s and Fink & Steinberg’s
petitions for restraining orders.
name="_ftnref8" title="">[8] In support of his argument that his communications were
privileged, Mr. Lyons also cites Code of Civil Procedure section 425.16, the
anti-SLAPP statute. Mr. Lyons did not
bring an anti-SLAPP motion in the trial court.
Accordingly, the provisions of the anti-SLAPP statute are not at issue
on appeal. The litigation
privilege in Civil Code section 47, subdivision (b) did not apply to Mr.
Lyons’s communications.
“The
litigation privilege, codified at Civil Code section 47, subdivision (b),
provides that a ‘publication or broadcast’ made as part of a ‘judicial
proceeding’ is privileged. This
privilege is absolute in nature, applying ‘to all publications,
irrespective of their maliciousness.’ (Silberg
v. Anderson (1990) 50 Cal.3d 205, 216 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg).) ‘The usual formulation is that the privilege
applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that [has] some connection or
logical relation to the action.’ (Id.
at p. 212.) The privilege ‘is not
limited to statements made during a trial or other proceedings, but may extend
to steps taken prior thereto, or afterwards.’
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 [39 Cal.Rptr.3d
516, 128 P.3d 713] (Rusheen).)†(
Santa Monica (2007) 41 Cal.4th 1232, 1241.)
The
litigation privilege in Civil Code section 47, subdivision (b) “applies only to
tort causes of action.†(Mattco
Forge, Inc. v. Arthur Young & Co. (1992) 5 Cal.App.4th 392, 406; Oren
Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986)
42 Cal.3d 1157, 1168; Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578,
586.) That is, the privilege protects
against tort liability for communications made in the course of
litigation. (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120; Washburn
v. City of Berkeley, supra, 195
Cal.App.3d at p. 586.) For example,
criminal threats of violence are not privileged under Civil Code section 47,
subdivision (b). (Brown v. Department of Corrections (2005) 132 Cal.App.4th 520,
529.) Because a proceeding for a
workplace violence restraining order is not a tort action, and threats that may
be criminal are not privileged under Civil Code section 47, subdivision (b),
Mr. Lyons’s communications were not privileged.
III. The Firearm
Restriction
In
his appeal of Fink & Steinberg’s restraining order on behalf of Mr. Fink
and Ms. Hernandez, Mr. Lyons argues that the trial court’s order that he cannot
own or possess a firearm
name="_ftnref9" title="">[9] was not justified and that
he was denied due process because his
ability to earn a living was taken away (i.e., without a firearm, he could not
work as an armed security guard) in a summary proceeding that did not provide
for the confrontation of witnesses or notice of all of the allegations. The trial court did not commit legal error.
Mr.
Lyons’s fourth argument heading states, “Failure To Cease (Nonthreatening
Legal) Communications Has No Connection With Having A Firearm And Did Not
Justify The Trial Court’s Firearm Restriction.â€
No factual or legal discussion follows the argument heading. Mr. Lyons’s failure to provide any
discussion, under binding authority, results in his not meeting his burden to
show prejudicial error and thus results in a forfeiture of the argument on
appeal. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218
[“‘It is an established rule of appellate procedure that an appellant must
present a factual
authority on each point made or the argument may be deemed waived. [Citations.]’
[Citation.]â€]; Bullock v. Philip Morris USA, Inc. (2008) 159
Cal.App.4th 655, 685 [“An appellant must affirmatively demonstrate error
through reasoned argument, citation to the appellate record, and discussion of
legal authorityâ€].) “Pro. per. litigants
are held to the same standards as attorneys.â€
(Kobayashi v. Superior Court
(2009) 175 Cal.App.4th 536, 543; see Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 985.)
Even
if Mr. Lyons had not forfeited the argument, the argument does not prevail
because a firearm restriction is mandatory under section 527.8 once a trial
court finds sufficient evidence to issue a restraining order. At the time of the hearing, section 527.8,
subdivision (j) (now subdivision (r)) provided:
“(1) A person subject to a protective order issued
under this section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in effect.
protective order issued under this section to relinquish any firearms he or she
owns or possesses pursuant to Section 527.9.
or receives, or attempts to purchase or receive a firearm while the protective
order is in effect is punishable pursuant to subdivision (g) of Section 12021
of the Penal Code.â€
As
explained above, sufficient evidence was presented to the trial court to
support the restraining orders.
Accordingly, the firearm restriction was a mandatory requirement under
section 527.8, subdivision (j).
In
his fifth argument, Mr. Lyons contends that Fink & Steinberg’s primary goal
in the restraining order proceeding was to deprive him of his gun and
livelihood.
title="">[10] According to Mr. Lyons, in such a proceeding,
“a gun restriction is usually given pro forma and without much consideration by
either side or even the Court.†Mr.
Lyons argues that Fink & Steinberg “used evidence previously rejected by
other judges; and evidence of alleged misconduct which was never described in
the Application for Injunctive relief.â€
Mr. Lyons argues that “[t]his was a violation of [his] due process
rights to be protected by res judicata (or to be protected against double
jeopardy in this quasi criminal proceeding (i.e., restraining orders ARE
enforced by criminal penalties).â€
Although
Mr. Lyons claims that the trial court issued a restraining order based on
evidence that two trial courts previously rejected in denying temporary
restraining orders, Mr. Lyons has not shown that the evidence at the hearing on
the restraining order at issue here was the same evidence that was presented to
the two prior trial courts. (Bullock
v. Philip Morris USA, Inc., supra,
159 Cal.App.4th at p. 685.) The
record appears to demonstrate otherwise.
At the hearing on the restraining order at issue here, Fink &
Steinberg presented Dr. Glaser’s testimony.
At least with respect to the hearing on one of the prior petitions for a
restraining order, the trial court did not hear testimony from Dr. Glaser. As to Mr. Lyons’s contention that Fink &
Steinberg presented “evidence of alleged misconduct which was never described
in the Application for Injunctive relief,†Mr. Lyons does not identify any such
evidence and thus cannot prevail on the issue.
(Ibid.) Accordingly, Mr. Lyons has not demonstrated a
due process violation with respect to the firearm restriction.
IV. The Trial Court Did
Not Exceed Its Jurisdiction In Issuing The Permanent
Workplace Violence
Restraining Orders
In
his appeal of Fink & Steinberg’s restraining order on behalf of Mr. Fink
and Ms. Hernandez, Mr. Lyons contends that the trial court exceeded its
jurisdiction by enjoining his behavior with respect to persons not named in the
petition for a restraining order.
Specifically, he contends that he was not given notice and an
opportunity to be heard that he “would be enjoined from communicating with
‘anyone’ connected with his case.†The
restraining order, Mr. Lyons argues, enjoins him from “‘searching the Internet’
concerning such unknown and unnamed person[s].â€
Mr. Lyons misconstrues the restraining order.
The
restraining order the trial court issued applies to Mr. Lyons’s conduct with
respect to the protected “employee†and “other protected persons.†Mr. Fink is identified as the protected
“employee†in the restraining order and Ms. Hernandez is identified as an
“additional protected person[].†The
restraining order further states that Mr. Lyons “cannot search for information
online regarding Petitioners using any internet search engine.†In the context of the restraining order, the
trial court’s use of the term “Petitioners†plainly refers to Mr. Fink and Ms.
Hernandez. The restraining order does
not purport to restrain Mr. Lyons’s conduct with respect to “unknown or
unnamed†persons. Accordingly, the trial
court did not exceed its jurisdiction in issuing the restraining order.
We
look only to the sufficiency of the evidence submitted to determine if it is
sufficient enough to support the trial court’s findings. As discussed above we must conclude that the
evidence is sufficient. Thus, we make no
determination as to the credibility of the parties or witnesses—that is for the
trial court. Then, in determining
whether the trial court erred in granting an injunction, we look only to
whether the injunction was an abuse of discretion. We are not able to make such a
determination. Accordingly, we affirm
the orders.
The orders
are affirmed. No costs are awarded.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
ARMSTRONG,
Acting P. J.
KRIEGLER,
J.
trial court issued Pacific restraining orders in case numbers NS023726 (Tia
Schiller) and NS023728 (Jennifer and Alicia Patterson) which Mr. Lyons appealed
in case numbers B237428 and B237507.
Alicia Patterson is Jennifer Patterson’s daughter. Because they share the same last name, for
clarity, we will refer to Jennifer Patterson and Alicia Patterson individually
by their first names. The trial court
issued Fink & Steinberg restraining orders in case numbers NS023727 (Olaf
Muller) and NS023758 (Keith Fink and Sarah Hernandez) which Mr. Lyons appealed
in case numbers B237503 and B237438. We
granted Pacific and Fink & Steinberg’s motion to consolidate Mr. Lyons’s
appeals.
will refer collectively to Ms. Schiller, the Pattersons, Mr. Muller, Mr. Fink,
and Ms. Hernandez as “petitioners.â€
