City of Richmond v. Hernandez

Filed 1/8/09 City of Richmond v. Hernandez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Walter Rogelio Hernandez appeals from an order denying his special motion to strike under Code of Civil Procedure section 425.16.[1] Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as SLAPP suits (strategic lawsuits against public participation). Defendant contends the trial court erred in denying his motion to strike petitions for injunctions filed against him by the City of Richmond (City) under the Workplace Violence Safety Act ( 527.8). We disagree and affirm.

Factual Background And Procedural History

In March 2007, defendant was hired by the City as a temporary carpenter.

On November 7, 2007, defendants attorney sent a letter to the Citys legal office. According to the letter, defendant had been fired on October 22, 2007, after he raised questions about his failure to pass a written test that would have allowed him to qualify for a permanent position. His attorney alleged there was probable cause to suspect foul play in the scoring of the test, and made a prelitigation settlement demand. The City declined the demand.

On December 19, 2007, defendants attorney telephoned an attorney who represented the City. The next day, the Citys attorney sent an e-mail message to City authorities concerning the conversation: As you know, [defendant] was terminated by [the City] in October for threatening behavior and we recently refused his attorneys settlement demand. [] Yesterday the attorney . . . called me to warn that [defendant] was making threats against [City] employees, and that the situation should not be taken lightly. The attorney reported that [defendant] appeared very disturbed, that he had been unable to find work and his home was in foreclosure, all of which he attributed to [City] HR staff . . . . The attorney said he intended to tell [defendant] that afternoon that he would not take [his] case, and did not want to see him go postal at [the City].  The Citys attorney also mentioned that defendant had told his attorney that he thought City employees had recently fired shots at his vehicle.

On December 20, 2007, the City, acting on behalf of six of its employees,[2] filed for temporary restraining orders and petitioned for injunctions against defendant under section 527.8.[3] Orders to show cause and temporary restraining orders issued that same day, with January 8, 2008, set as the date for the hearing on the injunction petitions.

The Citys petitions were supported by declarations from several of defendants coworkers regarding his behavior, as well as by a police report. For example, a building maintenance supervisor stated that an employee told him defendant had threatened to blow away somebody because he had been terminated. The employee stated in his own declaration that other employees had heard defendant say that when he was through with the City there would be three more vacancies in the carpentry shop. Defendant had also reportedly stated that he was going to go out with a bang.

The police report states that on December 17, 2007, a police officer spoke with defendants attorney. According to the report, the attorney said he had not heard defendant make any threats but that he was concerned and did not believe defendant was mentally stable. The report also notes defendant had previously been arrested on charges involving concealed weapons, most recently in 1999. After speaking further with defendants coworkers, the officer gave them bulletproof vests to wear while they were working.

The hearing on the petitions was continued to February 13, 2008.

On January 18, 2008, defendant responded to the petitions by filing a motion to strike under section 425.16, seeking to have the petitions dismissed.[4] The City filed its opposition on January 25, 2008.

On February 13, 2008, the hearing to consider the motion to strike and the Citys petitions was continued to February 20, 2008.

On February 20, 2008, the trial court denied defendants motion to strike the petitions, adopting its tentative ruling. The hearing on the Citys petitions was continued to March 4, 2008.

On March 4 and 5, 2008, the court heard the Citys petitions for injunctive relief. The court granted the petitions, issuing orders restraining defendant from contacting the seven named employees. The orders were set to expire January 2, 2009.

On April 7, 2008, defendant filed a notice of appeal from the denial of his motion to strike.

On June 9, 2008, the trial court entered its order denying defendants motion to strike.[5]

Discussion

I. Alleged Consent Judgment

The City claims that the parties entered into a stipulated judgment granting the restraining orders for a specific period of time, and with other conditions negotiated by the parties and the court. Defendants brief also references this stipulation, which he claims preserved his right to retroactively set aside the restraining orders and clear his name and record by way of this appeal. The City strenuously counters that the stipulation does not include any reservation of a right either to appeal the ruling on the motion to strike, or to challenge the merits of the restraining orders.

Under California law, a stipulated or consent judgment refers to a judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally. . . . (Norgart v. UpjohnCo. (1999) 21 Cal.4th 383, 400 (Norgart).) In a stipulated judgment, or consent decree, litigants voluntarily terminate a lawsuit by assenting to specified terms, which the court agrees to enforce as a judgment. (CaliforniaState Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 663.) The rule that a party may not appeal a consent judgment applies to cases in which the parties intended a full and final settlement of their dispute . . . . (Norgart, supra, at p. 401.)

The rule that consent judgments are not appealable is not one which affects the appellate courts subject matter jurisdiction, as the City suggests. (Norgart, supra, 21 Cal.4th at pp. 399-400.) It is not a jurisdictional rule of nonappealability, but simply the rationale for the court to refuse to entertain an appeal by a party to a consent judgment, because by consenting to the judgment or order the party expressly waives all objection to it, and . . . has abandoned all opposition or exception to it.  (Id. at p. 400.)

The City asserts that the stipulated judgment in the present case was reduced to writing and put on the record in open court. However, the record on appeal does not include a transcript of the hearing, nor has either party elected to augment the record to include a copy of the stipulation. What little record there is contains absolutely no mention of any stipulated judgment. We are thus unable to evaluate the stipulation. Nor, on this record, are we even able to validate its existence. Accordingly, we proceed to consider the merits of the appeal.

II. Section 425.16 and the Standard of Review

Section 425.16, known as the anti-SLAPP statute, provides: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.)

Courts engage in a two-step process in determining whether a cause of action is subject to a special motion to strike under section 425.16. First, the court determines if the challenged cause of action arises from protected activity. If the defendant makes such a showing, the burden shifts to the plaintiff to establish, with admissible evidence, a reasonable probability of prevailing on the merits. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Only a cause of action that satisfies both prongs of the anti-SLAAP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Id. at p. 89.)

 [T]he statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. [Citation.] The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning. [Citation.] (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1244.)

A ruling on a section 425.16 motion is reviewed de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) We review the record independently to determine whether the asserted cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at pp. 806-807.)

III. Defendants Conduct Does Not Qualify As Protected Activity

We observe the purpose of section 425.16 is to prevent the chilling of the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances by the abuse of the judicial process. [Citation.] As a necessary corollary to this statement, because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 313 (Flatley).)

The City contends that it sought the restraining orders in response to defendants nonprotected threats of workplace violence. It is, of course, well established that violence and threats of violence . . . [fall] outside the protection of the First Amendment because [they] coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the marketplace of ideas.   (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1122; see also Madsen v. Womens Health Center, Inc. (1994) 512 U.S. 753, 774, citing Milk Wagon Drivers Union v. Meadowmoor Co. (1940) 312 U.S. 287, 293 [utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution].)

Defendant claims that the Citys restraining orders were filed in response to privileged First Amendment activities, and in retaliation for having attempted to pursue a wrongful termination claim. In an effort to prove the restraining orders were motivated by retaliation, rather than by a genuine concern for workplace safety, he attempts to tie them to his attorneys November 7, 2007 settlement letter. His attorney, who is also representing him on appeal, further contends that the Citys attorney misrepresented their December conversation when she reported that he had characterized his client as mentally unstable. Defendant also claims that his alleged threats, even if true, do not establish any basis for the restraining orders.

While it is true that statements made in connection with or in preparation of litigation are subject to section 425.16 (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908), the Supreme Court has noted that this section is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process [citation], by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. [Citation.] By necessary implication, the statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. [Citation.] (Flatley, supra, 39 Cal.4th 299 at p. 324.)

We are not persuaded that defendants wrongful termination claim was a factor in the Citys decision to apply for the restraining orders. As defendant himself notes, his attorneys demand letter was submitted approximately six weeks before the City filed its petitions. The passage of time suggests that the letter itself did not trigger the filing of the petitions. While his attorneys December telephone call to the Citys attorney does appear to have played a part in its decision to seek restraining orders, the attorney revealed in the call that he had decided not to take the case. Thus, the City would have had little incentive to engage in retaliatory conduct.

Moreover, the City presented independent evidence of defendants threatening behavior. For example, the comments that he was going to blow away someone and wanted to go out with a bang, as well as his prediction that there would soon be three vacancies in the carpentry shop, were reported by fellow employees, not his attorney. Manifestly, these statements were not related to any legitimate effort to seek redress within the legal system.[6] Additionally, the comments made by defendants attorney to the Citys attorney concerning defendants mental state were corroborated by statements documented in the police report.

Our examination of the material submitted by the City in support of its petitions fails to reveal a nexus between defendants threatening remarks and any legitimate pursuit of potential litigation. Rather, his conduct appears to have emanated from a desire to intimidate his former coworkers and other personnel whom he deemed responsible for his termination. While defendant claims at no point in time did [he] ever voice any threat to any one of these plaintiffs, given the circumstances, his statements could reasonably have placed an employee in fear for his or her safety. ( 527.8, subd. (b)(2).)

In sum, while defendants litigation efforts and his behavior towards his former coworkers can both be traced to his termination, the activity of which the City complained, namely, threatening the infliction of physical harm, cannot be characterized as a valid activity undertaken in furtherance of his constitutional right to petition for legal redress. As we have determined defendants threats were not made in anticipation of litigation, we conclude that his conduct was not protected under section 425.16.[7] Accordingly, we hold, as a matter of law, that defendant cannot meet his burden on the first step of section 425.16s two-step motion to strike process.

Disposition

The order is affirmed.

_________________________

FLINN, J.*

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

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

[2] A seventh application for a temporary restraining order was filed on December 21, 2007.

[3] Section 527.8, subdivision (a) provides that [a]ny 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.

[4] [W]orkplace violence petitions in general, like civil harassment petitions, are subject to motions to strike under section 425.16. [Citation.] (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 617.)

[5] While arguably defendant filed his notice of appeal prematurely, we have elected to treat the notice as having been filed immediately after the making of the order. (See Cal. Rules of Court, rule 8.104(e)(2).)

[6] We disagree with defendants characterization of his statement regarding the three vacancies as one which essentially communicates that [he] anticipated prevailing with his lawsuit.

[7] Defendants alternative argument that the restraining orders are improper because they were sought out of sheer and unreasonable paranoia merits little consideration. Unreasonable paranoia is not grounds for striking a cause of action under section 425.16.

* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.