SikhTemple of Riverside v. Goraya

Filed 11/21/08 Sikh Temple of Riverside v. Goraya CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert D. Macomber, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Harry J. Histen for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Dedar Goraya (Goraya) appeals an order enjoining him from coming within 100 yards of the Sikh Temple of Riverside, Inc. (the Temple). (Code Civ. Proc.,  527.8.)^[1], [2]Goraya makes four contentions: (1) that substantial evidence does not support the trial courts finding that Goraya engaged in a course of conduct that required the issuance of an injunction; (2) that Goraya was not properly served with the temporary restraining order and notice of hearing on the petition for the three-year restraining order; (3) that the temporary restraining order should have been terminated because the Temple did not appear at the hearing on August 2, 2007; and (4) that the trial court erred by not granting Goraya a continuance at the hearing on August 7, 2007. We affirm the trial courts order.

FACTS

On July 19, 2007, the Temple filed a petition for an order to stop Goraya from harassing Temple members. Attached to the petition were five declarations; the declarations described an incident occurring on July 8, 2007, at the Temple. Kuldip, secretary of the Temple, was speaking at a podium. Goraya, who was in the audience, became upset and yelled that he wanted to speak. Goraya walked toward the podium and grabbed a sword that was on display in the Temple. Two other people, Shangara and Hardail, followed Goraya and pushed people along the path. One of the people pushed by Hardail was Lakhvir, who was ill and awaiting a kidney transplant.

Kuldip asked Goraya why he had the sword. Goraya responded that he would use [the sword] if he had to and that he should chop off [Kuldips] head. Goraya waved the sword and partly pulled it from its holder. Rur told Goraya to sit down; Shangara pushed Rur. Amarjit, the general secretary of the Temple, called the police when he saw Goraya holding the sword. Goraya told Amarjit that if [Amarjit] called the police he would get [Amarjit] next and that he should cut off [Amarjits] legs.

On July 20, 2007, the trial court granted the Temples request for a temporary restraining order. The temporary restraining order and notice of hearing for a permanent injunction were served on Goraya. At the scheduled hearing on August 2, 2007, the Temple did not appear; however, Goraya was present. The court continued the hearing to August 7, 2007.

At the hearing on August 7, 2007, the Temples trial attorney, Mr. Angus, provided the trial court with a history of the parties. Mr. Angus stated that Goraya, Hardail, and Shangara were members of a radical faction at the Temple. Mr. Angus explained that Goraya, Hardail, and Shangara have been the subject of numerous lawsuits with the temple, numerous problems at the temple. Mr. Angus stated that a few years prior, a restraining order had been filed against Goraya when he organized a group of 20 people who planned to take over the Temple by force. Additionally, Mr. Angus alluded to Goraya being involved in a knife attack on the son of the Temples executive committee president.

Gorayas trial attorney, Mr. Lefebvre, objected to Mr. Angus discussing the prior events because the allegations were unsubstantiated, totally unverified . . . [and] just argu[ment] by counsel. The trial court did not rule on the objection, but said, I will give you an opportunity to respond. Mr. Angus went on to explain that the temporary restraining order had lapsed, due to his late appearance for the scheduled hearing on August 2, 2007. During the lapse in the restraining order, Shangara returned to the Temple, and there were some problems. Mr. Angus stated that a person had been killed at a Sikh Temple in El Sobrante and that a comment had been made that what happened in El Sobrante can happen [in Riverside].

Mr. Lefebvre made several arguments against imposition of an injunction, including (1) that section 527.8 is meant to enjoin workplace violence and the Temple is not a workplace; (2) that the petition was merely a means to silence dissenters at the Temple; and (3) that a police officer had been posted at the Temple during services to maintain peace and, therefore, a restraining order was unnecessary. Finally, Mr. Lefebvre requested a second hearing on the matter, so that he could call witnesses to testify. The court granted the petition for a three-year injunction.

DISCUSSION

A. Course of Conduct

Goraya contends substantial evidence does not support the trial courts finding that he engaged in a course of conduct necessitating an injunction. We find this argument unpersuasive because Goraya made threats against employees at the Temple.

Section 527.8, subdivision (a), provides: 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. The word employee includes volunteers, such as those at the Temple. ( 527.8, subd. (d).) Credible 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), italics added.)

In the instant case, there was no need to present evidence of a course of conduct because Goraya made knowing and willful statements that would place a reasonable person in fear for his or her safety. Kuldip is the secretary of the Temple, i.e,. a volunteer or employee. At the time of the incident, Kuldip was speaking to the congregation about a general matter. Goraya walked toward Kuldip, grabbed a sword, and told Kuldip that he should chop off [Kuldips] head. Threatening to chop off Kuldips head, while holding a sword, constitutes a knowing and willful statement that would place a reasonable person in fear for his safety; the statement serves no legitimate purpose.

Additionally, Goraya threatened Amarjit, who is the general secretary of the Temple, i.e., a volunteer or employee of the Temple. Goraya told Amarjit, while holding a sword, that if Amarjit called the police, he would get [Amarjit] next and that he should cut off [Amarjits] legs. Threatening to cut off Amarjits legs, while holding a sword, constitutes a knowing and willful statement that would place a reasonable person in fear for his safety; the statement serves no legitimate purpose.

Accordingly, we need not determine whether there is substantial evidence of a course of conduct because Gorayas threats constitute a credible threat of violence.

To the extent Goraya is arguing that his threats do not provide substantial evidence that he will cause harm in the future, we disagree with such an argument. Before a court may grant a request for an injunction pursuant to section 527.8, the plaintiff must show to the satisfaction of the court it is likely that harm will occur from future unlawful violence in the absence of a restraining order. (Scripps Health v. Marin, supra, 72 Cal.App.4th at p. 334.) Kuldips declaration reflects that [t]he police talked to Goraya and told him that he should not come back to the [T]emple, but [Goraya] said he would be back next Sunday. Gorayas threats to Kuldip and Amarjit, combined with his statement to the police that he would be back next Sunday, provide substantial evidence that Goraya was likely to cause harm in the future by inflicting unlawful violence on the victims in the absence of a restraining order.

B. Service of Process

Goraya contends the trial court erred by granting the injunction because Goraya was not served with the temporary restraining order and notice of the hearing. We agree that the record does not contain a written personal proof of service on Goraya, but we disagree that the court erred.

Section 527.8, subdivision (h), provides: [T]he defendant shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing.

First, we discuss the failure to serve the temporary restraining order. The temporary restraining order expired August 2, 2007. Accordingly, this argument concerning the temporary restraining order has been rendered moot.

Second, we address the alleged failure to serve Goraya with notice of the hearing. Goraya contends for the first time on appeal that the court did not acquire personal jurisdiction over him because he was not served with notice of the hearing. Contrary to Gorayas position, a court acquires personal jurisdiction over a party who makes a general appearance in an action even if no summons is served on that party. ( 410.50, subd. (a); see also Firemans Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1150.) Goraya was present at the hearing on the petition for the three-year injunction. Accordingly, the court acquired personal jurisdiction over Goraya when he appeared at the hearing. Consequently, we find Gorayas argument unpersuasive.

C. ContinuanceAugust 2, 2007

Goraya contends the court erred by not terminating the temporary restraining order when the Temple failed to appear at the hearing on August 2, 2007. As noted ante, the temporary restraining order expired on August 2, 2007. Accordingly, this argument concerning the temporary restraining order has been rendered moot.

To the extent Goraya is arguing that the three-year injunction would not have been issued if the temporary restraining order had been terminated by the court, we find such an argument unpersuasive. The request for a three-year injunction could have been granted without a prior temporary restraining order having been issued. ( 527.8, subd. (e) [plaintiff may obtain a temporary restraining order].) In other words, the temporary restraining order is not a necessary precursor to the issuance of a three-year injunction. Therefore, termination of the temporary restraining order would not have any effect on the issuance of the three-year injunction.

D. ContinuanceAugust 7, 2007

Goraya contends the trial court erred by not granting him a continuance at the hearing on August 7, 2007. We disagree.

Section 527.8, subdivision (f), provides: Within 15 days of the filing of the petition, a hearing shall be held on the petition for the injunction. . . . At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. We review the trial courts refusal to grant a continuance for an abuse of discretion. (Specht v. Keitel (1961) 190 Cal.App.2d 332, 340.)

At the hearing on the petition for the three-year injunction, the court indicated that it would grant the restraining order as requested. In response, Mr. Lefebvre requested a second hearing, i.e., a continuance. Mr. Lefebvre explained to the trial court that he wanted to call a witness to confront the declarations attached to the petition and to subpoena police officers. The court asked Mr. Lefebvre if he had witnesses to present. Mr. Lefebvre replied that the witnesses were not present.

Mr. Lefebvre did not explain why he did not subpoena the witnesses for the scheduled hearing. If Mr. Lefebvre wanted to present testimony to rebut the statements in the declarations attached to the Temples petition, he could have subpoenaed the witnesses to appear at the scheduled hearing. Consequently, we conclude the trial court did not abuse its discretion by denying the request for a continuance because no explanation was offered as to why the witnesses had not been subpoenaed for the hearing that was already taking place. (See In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 407 [record failed to disclose good cause for the requested continuance].)

At oral argument, Goraya emphasized that he was entitled to a continuance pursuant to section 527, subdivision (d)(3) and (d)(4), which address the granting of a temporary restraining order without notice. As noted ante, the temporary restraining order expired August 2, 2007, and, therefore, arguments concerning the temporary restraining order have been rendered moot.

DISPOSITION

The order is affirmed. Defendant and appellant shall bear all costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] Although the statutory authority for the injunction was not made clear in the record, we infer that the injunction was issued pursuant to Code of Civil Procedure section 527.8, which authorizes employers to seek injunctions on behalf of their employees. The Temple stated that it brought the petition for an injunction under Code of Civil Procedure sections 527.6 and 527.8, and Penal Code section 300. We note that the action would not be authorized by Code of Civil Procedure section 527.6 because only natural persons may seek protection under that section, and the Temple is not a natural person. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334.) The Temple also could not seek protection pursuant to Penal Code section 300 (or Pen. Code, 302, which is more on point) because neither section authorizes injunctive actions.