Ye Olde Kings Head v. Gray

Filed 10/29/09 Ye Olde Kings Head v. Gray CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Gerald Rosenberg, Judge. Affirmed.

Fleming Gray, in pro. per., for Defendant and Appellant.

Gordon & Rees, Debra Ellwood Meppen and Yaron M. Tilles for Plaintiff and Respondent.

Defendant and appellant Fleming Gray (defendant) appeals from the trial courts order granting the petition of plaintiff and respondent Ye Olde Kings Head (plaintiff) for an injunction under Code of Civil Procedure section 527.8^[1]prohibiting defendant from contacting, assaulting, stalking, or following plaintiffs general manager and employee, Peter Dolan (Dolan), and ordering defendant to stay at least 100 yards away from the restaurant. Defendant contends the trial court erred because his conduct did not warrant the issuance of an injunction under section 527.8, and because the injunction is overbroad and violates defendants federal and state constitutional rights of free speech. Defendant further contends the doctrines of res judicata and collateral estoppel barred plaintiff from obtaining relief in this action after the denial of plaintiffs petition for a temporary restraining order against defendant in a separate action. We affirm the trial courts order issuing the injunction.

BACKGROUND

Plaintiff is a restaurant located in Santa Monica, California. Donal Tavey (Tavey) is a co-owner of the restaurant. Defendant is a former patron of the restaurant who was asked to leave the restaurant on July 9, 2006, after engaging in erratic and disruptive behavior.

On November 2, 2006, defendant filed a lawsuit against plaintiff, Dolan, and Tavey. The lawsuit was subsequently dismissed with prejudice, and this court affirmed the dismissal. (Gray v. Ye Olde Kings Head (Jan. 24, 2008, B201089) [nonpub. opn.].) Since November 2007, defendant has engaged in the following conduct in front of plaintiffs restaurant: picketing with a sign stating that plaintiffs food is hazardous and contains poison; distributing leaflets containing sexual references to Taveys wife and suggesting that Tavey is encouraging defendant to engage in a pedophile act; distributing leaflets stating that Tavey, Dolan, and others may serve you a sickening dose of poison containing lies, deceit and fraud alongside the food at plaintiffs restaurant; insulting customers as they are leaving plaintiffs restaurant and getting into altercations with them; and photographing a customer and her young children after being asked to stop and being arrested for stalking and child annoyance.

On August 7, 2008, plaintiff filed a petition for an injunction against defendant under section 527.8. Plaintiffs petition was supported by the declaration of Dolan, who attested to being traumatized by defendants conduct, which included taunting Dolan at work. In his declaration, Dolan stated that on July 20, 2008, he heard a customer in the restaurants outside dining area saying Please stop, please stop. When Dolan went to investigate, the customer told him that she was being harassed by defendant, who was photographing her young children. Dolan stated that defendants actions were affecting Dolans health, and that he is anxious and afraid to come to work. Defendant opposed the petition on the grounds that his peaceful picketing and leafleting was constitutionally protected and that his activities did not present a clear and present danger and did not take place on or in plaintiffs workplace.

At the September 2, 2008 hearing on plaintiffs petition, the trial court reviewed the evidence and heard testimony from witnesses, including the testimony of a customer who complained about defendant photographing her children. At the conclusion of the hearing, the trial court found that defendant had made credible threats of violence against Dolan by knowingly and willfully making statements and by engaging in conduct that would place a reasonable person in fear for his or her safety and the safety of his or her family members. The trial court further found that defendants conduct was not constitutionally protected, and granted the petition for an injunction. This appeal followed.

DISCUSSION

I. Applicable Law and Standard of Review

Section 527.8 authorizes an employer to seek an injunction on behalf of its employees to prevent threats or acts of violence by any person. ( 527.8, subd. (a); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333 (Scripps).) It provides, in relevant part: 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 . . . . ( 527.8, subd. (a).) A credible threat of violence is defined as 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).)

Section 527.8 was enacted to establish parallel provisions to section 527.6, which allows a person who has suffered harassment to seek a temporary restraining order and injunction against the harasser.^[2] (Scripps, supra, 72 Cal.App.4th at p. 333.) Early versions of section 527.8 included the precise language, terminology and process in section 527.6, including the definitions of harassment and course of conduct. (Scripps, at p. 333, fn. 8.)

Injunctions issued under section 527.8 are reviewed to determine whether the necessary factual findings are supported by substantial evidence. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.) Under the substantial evidence standard of review, we resolve all factual conflicts and questions of credibility in favor of plaintiff as the prevailing party, and draw all reasonable inferences in support of the trial courts findings. (Ibid.)

II. Credible Threats of Violence

The trial court found that defendants statements and course of conduct constituted credible threats of violence under section 527.8 that would place a reasonable person in fear for his or her safety and for the safety of his or her immediate family. Substantial evidence supports that finding.

The record shows that defendant harassed plaintiffs customers and employees, including Dolan, on a continuing basis since November 2007 by taunting Dolan while he was at work; by distributing leaflets stating that Dolan and other employees may serve you a sickening dose of poison containing lies, deceit and fraud; by distributing leaflets stating that Tavey had invited defendant for a threesome with his wife; that Tavey may want to find defendant a Jewish girl for a sexual encounter; that Tavey may be encouraging defendant to engage in a pedophile act with a Jewish girl; by photographing a customers young children, over the customers objection, and frightening the customer and her children; and by insulting customers and getting into altercations with them as they were leaving the restaurant. Substantial evidence supports the factual findings that were the basis for the injunction issued by the trial court in this case.

III. Defendants Constitutional Challenge

Defendant contends the injunction is an unlawful prior restraint on his right to free speech under the federal and state constitutions. The right to free speech, however, is not absolute. (Near v. Minnesota (1931) 283 U.S. 697, 708; Gerawan Farming v. Lyons (2000) 24 Cal.4th 468, 486.) The United States Supreme Court has made clear that there are circumstances in which spoken words or other forms of communication are not constitutionally protected: [W]ords can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nations defense secrets), . . . speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citation.] (R. A. V. v. St. Paul (1992) 505 U.S. 377, 389.) Our Supreme Court also has noted: A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. [Citation.] (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134 (Aguilar).) In California, speech that constitutes harassment or a credible threat of violence is not constitutionally protected. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250 (Huntingdon).) [O]nce a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited prior restraint of speech. [Citation.] (Aguilar, supra, at p. 140.)

Defendant claims that because his speech did not contain fighting words or incitement to imminent lawless action, the injunction is based on speculative harm and is therefore invalid. The prospect of imminent lawless action is not an element of a claim for injunctive relief under section 527.8. (See Huntingdon, supra, 129 Cal.App.4th at p. 1257.) The injunction issued in this case was lawfully based on a statute that proscribes conduct that would place a reasonable person in fear for his or her health and safety and for the health and safety of his or her immediate family. Defendants pattern of conduct directed toward plaintiffs employees and customers fell squarely within that statute.

Defendant contends that an injunction restricting speech must be narrowly tailored and that the 100-yard limitation imposed by the trial court in this case is overbroad. The record shows that defendant engaged in a campaign of harassment against Dolan and other employees and customers of plaintiffs restaurant for nearly a year. There was evidence that defendant taunted Dolan, photographed patrons of the restaurant and their young children without their consent and over their objection, insulted patrons as they left the restaurant, and got into altercations with them. Defendants course of conduct has necessitated law enforcement response on multiple occasions and resulted in his arrest at least twice. The record supports the distance restriction imposed by the trial court in this case.

IV. Res Judicata and Collateral Estoppel

Defendant argues for the first time in this appeal that the doctrines of res judicata and collateral estoppel barred plaintiffs petition for injunctive relief under section 527.8 following the denial of plaintiffs request for a temporary restraining order against defendant in a separate action between the parties in the Los Angeles County Superior Court. Defendant failed to make this argument before the trial court and therefore forfeited the right to do so for the first time in this appeal. (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468.)

Although an appellate court in its discretion may allow an appellant to present a new issue of law on appeal, if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at trial[,] the opposing party should not be required to defend against it on appeal. [Citation.] (Sommer v. Gabor, supra, 40 Cal.App.4th at p. 1468.) The record shows a different set of facts between the time plaintiff petitioned for a temporary restraining order in another action against defendant and the instant petition for injunctive relief under section 527.8. At the time of plaintiffs petition for a temporary restraining order, defendants activities were apparently limited to picketing and distributing leaflets outside plaintiffs restaurant. His conduct subsequently became more aggressive. He began taunting plaintiffs employees, photographing customers and their young children over their objection, confronting customers as they exited plaintiffs restaurant, insulting customers and getting into altercations with them. Defendants more aggressive conduct prompted plaintiff to seek injunctive relief under section 527.8. In light of these factual differences, we do not consider the res judicata and collateral estoppel arguments defendant raises for the first time in this appeal.

DISPOSITION

The judgment is affirmed. Plaintiff is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

CHAVEZ

We concur:

_____________________________, Acting P. J.

DOI TODD

_____________________________, J.

ASHMANN-GERST

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

^[2] Section 527.6 provides in part: (a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as defined in this section. Harassment is defined as unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause some substantial emotional distress to the plaintiff. ( 527.6, subd. (b).)