Puthukkeril v. Allen

Filed 10/25/07 Puthukkeril v. Allen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Introduction

Brian Allen, a former employee of Scios Inc., appeals from four orders of the Alameda County Superior Court issued after a hearing, granting one two-year injunction to stop civil harassment of Scios employee Silvy Puthukkeril (Code Civ. Proc.,  527.6)[1] and three two-year injunctions prohibiting violence or threats of violence against Scios employees Lee Mermelstein, Ulrich Ernst, and Brian Williams. ( 527.8.) Allen contends that Scios wholly contrived the allegation of threat of violence; that [t]he injunctions granted under . . . section 527.8 do not meet the burden of proof, related to the primary claim of insanity; and that [t]he injunction granted under . . . section 527.6 does not fit the intent of the statute. We shall construe these claims as asserting that substantial evidence does not support the issuance of the injunctions. Allen further contends that he was denied his due process right to cross-examine plaintiffs and to testify in his own defense. Finally, Allen contends that [a]ll injunctions were issued in violation of [the Norris-LaGuardia Act (29 USC  101 et seq.)]. We disagree with all those contentions and affirm the orders appealed from.

Statement of Facts

Scios, Inc. is a biopharmaceutical company headquartered in Fremont, California. It employed Lee Mermelstein, Ulrich Ernst, Rob Williams, Silvy Puthukkeril and Brian Allen in its Commercial Manufacturing Department. Department Director Ernst and Associate Director Mermelstein supervised Puthukkeril, Williams and Allen.

On the morning of January 5, 2006, Allen approached Mermelstein and Ernst and asked to speak to them. He appeared very agitated. He was sweating profusely, blinking rapidly and making unusual gestures. Allen announced to Ernst and Mermelstein that he was resigning from the company because of statements that God had made to him. Allen stated that God had chosen him to inform the company that three people were going to die from Scioss product in the near future. Despite requests for more specific information, Allen responded only that God had told him about these concerns. He said that he knew that he had a higher mission in life than to be a biotech worker.

At the time, Ernst and Mermelstein were concerned about Allen and invited him to take a leave of absence from work to think it over. Allen refused and instead resigned on January 5.

That evening, Allen called Scioss product hotline and made similar statements to the hotline operator. He stated that God wanted him to inform Scios that three people were going to die. He also stated that God informed him that two of those individuals would die immediately and the third one would die within two months. Allen refused to give any additional information to the hotline operator. The hotline operator informed Ernst, Mermelstein and Scioss director of human resources about the call. The hotline manager stated that, based on the content of Allens call, she was concerned for the safety of Mermelstein and the employees in his department. Because Scios takes all calls to its hotline seriously, a representative from Scioss medical affairs department called Allen to obtain further information. Allen would state only that God had informed him that three individuals were going to die; that two would die immediately and the third within two months. Allen then terminated the call.

Scios was concerned not only because of these events and statements, but because of past disturbing conduct by Allen. In June 2005, six months before he resigned, Allen and his coworker Williams had traveled to Austria to visit one of Scioss contractors manufacturing plants. During a tour of the plant Allen acted in a very aggressive manner toward the contractor. When Allen and Williams returned to their office, Williams suggested to Allen that he calm down. Allen refused to do so, becoming more agitated. According to Williams, Allen reacted in a really strange manner, kind of snapped on me. Allen began yelling at Williams, calling Williams and Williams coworkers names. Williams felt intimidated because of Allens loud, aggressive tone of voice and hostile body language. He believed Allen would have become physically violent had Williams not walked out of the office at that moment. Williams called Scioss headquarters in the United States and reported the incident; he told the company that he wanted to come home immediately. Since that time Williams avoided any contact with Allen. Upon hearing of Allens threats of violence (at the instruction of God), and because of Allens hostile action toward Williams in Austria and threats against coworkers, which Williams believed credible, Williams feared for his personal safety.

Puthukkeril testified that during his employment at Scios, Allen had repeatedly asked her on dates even though she consistently had told him she was interested in only a professional relationship with him. After his resignation, during the week of January 15, 2006, Allen left approximately 18 messages on Puthukkerils personal cell phone. Several of these messages were left late at night (11:15 p.m.) or early in the morning (6:15 a.m.) On January 16, Allen called her personal cell phone 14 times and each time left a bizarre message. (Allen did not dispute that he called Puthukkeril this many times during this period and often very late or early.) Puthukkeril did not return any of the calls. Knowing that Allen was trying to contact her, Puthukkeril, who did not have caller I.D. on her home telephone, refused to answer her home telephone during that entire week and then simply unplugged it to avoid any calls from him. In the initial voicemail messages, Allen asked for her to call him back so he could explain himself and the reasons for his departure. His messages became increasingly bizarre. There were romantic overtones in several of the calls, for example, he stated:  not a day has gone by since he began working at Scios that he hasnt thought of [me].  He sounded despondent in some of the voicemail messages. The messages were particularly alarming to Puthukkeril because she had never had a romantic relationship with Allen, she had repeatedly told him she wanted only a professional relationship with him, and there was no legitimate reason for him to be calling her. The phone calls were causing Puthukkeril substantial emotional distress.

Puthukkeril reported the voicemail messages to Scios. She played the tapes for Scios HR Director Carr, the security department and Puthukkerils supervisors Ernst and Mermelstein. Carr and Mermelstein, who listened to the tape, agreed the messages sounded obsessive and irrational. Because Allen knows where Puthukkeril lives, Scios paid for a security system to be installed in her home. Scios also hired a security company to protect Puthukkeril and her home. Puthukkeril reported Allens conduct to the Fremont Police Department. Based upon the bizarre nature of Allens voicemail messages to her and the threats of violence, allegedly at the instruction of God, against her coworkers, which she believed to be credible, Puthukkeril feared for her personal safety.

On January 19, 2006, Allen called Mermelstein at work. Allen sounded very anxious and told Mermelstein that he wanted to meet with Mermelstein and Ernst to discuss his concerns about Scioss product further. Allen stated that God informed him that Mermelstein knew about problems with the companys product. This was totally false as Mermelstein had no such knowledge. Mermelstein agreed to call him back later. Based on concerns about safety and upon the advice of the human resources department, Mermelstein called Allen back and said that Ernst and he would not meet with Allen. Allen became very agitated at that point. He told Mermelstein that it was imperative that he meet with Mermelstein and Ernst. He then began referring to himself in the third person. He stated that if there is something else you (Mr. Allen) are required to do you (Mr. Allen) will do it. A person needs to do whats required of him.  Mermelstein responded that his comments sounded like a threat. Allen then said,  Well, Lee, youve got to understand, this is bigger than me. His (Gods) will shall be done. It may not be by me. It may be done by some other [version of] me. 

Mermelstein understood from this conversation that Allen was threatening to carry out a potentially violent act against Mermelstein and against other persons in the commercial manufacturing department, because God is telling him to do so. Mermelstein believed the threats to be credible and was in fear for his personal safety and for that of his coworkers. Mermelstein informed the company of these threats. Believing that Allens statements and conduct were credible threats of violence, Scios hired additional security guards to patrol the Fremont campus and also notified all security personnel that Allen was prohibited from entering the campus. In addition Scios installed security systems in Mermelsteins, Ernsts and Williams homes and contacted the San Mateo and Fremont Police Departments to report Allens threatening conduct.

Procedural Background

Puthukkeril (for herself) and Scios (on behalf of Mermelstein, Ernst and Williams), filed for temporary restraining orders (TROs) against Allen pursuant to sections 527.6 and 527.8, respectively. The commissioner granted temporary restraining orders. Allen was provided proper notice of the TROs and of the hearing regarding the petitions for the injunctions. Allen did not respond to the TROs.

On February 10, 2006, the commissioner held a full hearing pursuant to sections 527.6 and 527.8 to determine whether to grant respondents petitions for injunctions against Allen. The court reviewed the declarations submitted in support of the TROs and heard testimony from Allen, Puthukkeril, Ernst, Mermelstein, Williams, and Scioss Security Systems Supervisor Gary Backus.

At the outset of the hearing, Scioss counsel raised a concern that Allen might want to discuss the safety of a product made by Scios and that he might want to talk about confidential, proprietary information about the product that had no bearing on the case or his harassing of respondents. The court asked Allen to respond, and Allen stated youre right as far as looking at the papers, it has nothing to do with it. . . . He advised the court that he chose to take an ethical and moral stand in support of individuals who had taken the product and died as a result. The court stated that it wanted to focus on relevant information and the allegations in terms of what actions took place that were of a violent or threatening nature.

During the hearing, Allen requested on two occasions that witnesses be removed from the courtroom during the testimony of other witnesses. The court granted his motion as to witnesses. At one point, Allen also requested that counsel be admonished not to lead or coach witnesses. At no time did Allen assert that he believed his due process rights were being violated.

After hearing evidence, the court determined that respondents had met their burden of proof. It granted all four injunctions sought by respondents against Allen.

I. Substantial Evidence Supports Issuance of Anti-Harassing Injunction

The court issued the injunction sought by Puthukkeril pursuant to section 527.6. In relevant part, that anti-harassment injunction statute provides:

For the purposes of this section, harassment is 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 substantial emotional distress to the plaintiff. ( 527.6, subd. (b).) Course of conduct is defined in the statute as 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 individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means . . . . Constitutionally protected activity is not included within the meaning of course of conduct.  ( 527.6, subd. (b)(3).)

Allen admitted making the calls to Puthukkeril, but maintained they were friends who would call each other late and early. He further maintained that because his harassing phone calls stopped when he was served with the TRO, there was no evidence that he would continue to annoy Puthukkeril. Credibility determinations were for the trial court, which believed Puthukkeril.

In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in . . . section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)[2]

Allen asserts that Puthukkeril failed to establish that he made a credible threat of violence toward her. Such showing is not required. Under the statute, harassment is defined not only as a credible threat of violence, but also as 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 substantial emotional distress to the plaintiff. ( 527.6, subd. (b).) Allens behavior satisfies this definition. Puthukkeril testified that his numerous, repeated phone calls and the nature of his messages caused her to suffer substantial emotional distress and to fear for her safety. She further testified that there was no legitimate reason for him to call her after his resignation, as their relationship was purely professional. The court could conclude that Allens course of conduct would cause a reasonable person to suffer substantial emotional distress and that Puthukkeril had suffered such distress.

Nor does Allens assertion that there was no evidence that he would continue to harass Puthukkeril prevent the court from concluding otherwise. [A]n injunction [under section 527.6] serves to prevent future injury and is not applicable to wrongs that have been completed. An injunction is authorized only when it appears that wrongful acts are likely to recur. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 402, citing Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333, [injunction under section 527.8] (Scripps).) Puthukkeril testified that while they worked together, Allen persisted in asking her out, despite her repeatedly telling him that she was not interested in anything other than a professional relationship with him. The court could determine based upon this testimony, and upon the nature, frequency and timing of Allens phone calls to her, as well as the fact that they ceased only after Allen had been served with the TRO, that the injunction was necessary to prevent Allen from continuing to harass Puthukkeril.

II. Substantial Evidence Supports the Issuance of the Section 527.8 Workplace Violence Injunctions

Section 527.8 was enacted in 1994 to establish parallel provisions to section 527.6. It authorized any employer to pursue a TRO and an injunction on behalf of its employees to prevent threats or acts of violence by either another employee or [a] third person. Given that section 527.6 only allowed injunctive relief for natural persons (see Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 618-619 . . .), section 527.8 was enacted to allow a corporate employer to bring such an action on behalf of an employee. Section 527.8 was thus intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons. The express intent of the author of the legislation was to address the growing phenomenon in California of workplace violence by providing employers with injunctive relief so as to prevent such acts of workplace violence. (Sen. Rules Com., 3d reading analysis of Assem. Bill No. 68 (1993-1994 First Ex.Sess.) Aug. 31, 1994; Assem. Bill No. 68, Concurrence in Sen. Amends. (1993-1994 First Ex.Sess.) Aug. 31, 1994; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 68 (1993-1994 First Ex.Sess.) as amended June 30, 1994.) (Scripps, supra, 72 Cal.App.4th at pp. 333-334, italics omitted, fn. omitted; accord, USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 443.) Under the statute, the employer need not show that the threat of violence was directed toward a particular employee. Given the legislative intent to prevent workplace violence, it would indeed be absurd to read the statute in [such a manner]. (USS-Posco Industries, at p. 443.)

The record provides substantial evidence that Allen made credible threats of violence against Scios employees Mermelstein, Ernst and Williams.

Allen contends there was no showing that he was insane. Such a showing is not required under the statute. Allens contends he made no threats. However, the court could determine that a reasonable person would take Allens repeated communications to Scios employees, the hotline operator and the medical affairs representative as threatening to carry out potential violence against Mermelstein, Ernst and the employees in the department. These statements included that Allen had been told by God that the Scios product would kill three persons, his accusation that Mermelstein knew the product was responsible for deaths, that if there was something else you [Allen] are required to do you [Allen] will do it, his response to Mermelsteins questioning whether Allen was threatening him, that this is bigger than me and that His [Gods] will shall be done, but maybe by some other me. The court could also consider Allens increasing agitation, references to himself in the third person, and his previous bizarre and threatening conduct toward Williams when determining that Allens statements and conduct constituted a credible threat of violence. Mermelstein, Ernst and Williams testified that they feared for their personal safety and that they reasonably understood Allen to be threatening to carry out a potentially violent act against them and others in the department, because God told him to do so. The court could determine that these statements served no legitimate purpose, particularly as Allen had resigned from Scios and had no further involvement in Scioss product.

Substantial evidence supports the courts issuance of the injunctions under section 527.8.

III. Due Process

Allen contends he was denied due process because he was denied the right to testify. Allen is wrong. Allen was sworn as a witness at the outset of the hearing and was allowed to respond fully to the allegations against him and to the testimony of each witness.[3]

Specifically, Allen contends he requested to testify in regard to the facts related to the allegation of threat of violence. His request was summarily rejected by the commissioner. He cites portions of the proceeding relating to Mermelsteins testimony concerning Allens threats. Mermelstein testified to the events of January 5 and January 19, stating the latter were the most serious. The court then asked Allen for his response. Allen responded, relating that there had been an ongoing issue with the product. The court stated it did not want Allen to talk about the product, but about the conversations Allen had with Mermelstein. Allen continued. In a lengthy response, he testified about the message from God that he received on January 3, his call to the product hotline, his statements on the day he resigned, and his claim that respondents testimony about his statements was inaccurate and willful distortions of the truth. He testified about the specific details of his statements. The court asked him about the allegations relating to January 19 and Allen responded, testifying that he, Ernst and Mermelstein had agreed he would contact them when he returned from New Orleans. The court then asked Mermelstein whether there was such an agreement and Mermelstein responded that it had been contingent upon Allens not resigning on January 5. Mermelstein stated once again that he had become more concerned about Allens stability after the conversation on January 19. Mermelstein did not testify about any additional threats. Allen then asked, Your Honor, do I get a chance to respond to these allegations on the 19th? The court replied, You did. Yes, I allowed to you [sic] do that.

The court had discretion to exclude Allens cumulative testimony. (Evid. Code,  352 (discretion of the court to exclude evidence); 765 (discretion to control mode of interrogation); Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 (discretion to refuse to admit cumulative evidence).)

Allen had ample opportunity throughout the proceeding to respond to the allegations and to present his version of the facts, as well as argument. He took full advantage of that right. The court did not deny Allen his due process right to testify.

Moreover, in light of the full opportunity provided by the court for Allen to respond to the allegations and the testimony presented, it is clear that any error in the courts limiting Allens testimony in response to Mermelsteins testimony about Allens statements on January 19 necessarily would be harmless.

Nor did the court improperly exclude evidence about the efficacy of Scioss product. Allen offers no legal support for his assertion to the contrary. Although Allen continued to try to interject irrelevant information regarding the companys product into the hearing, the court repeatedly redirected him to discuss the issues relevant to the injunctions, including whether his statements regarding Gods messages constituted credible threats of violence and, if so, whether the harassment was likely to continue in the future. At one point, during Allens response to Williams testimony, when he veered off into discussing issues with the contract manufacturer, the court told him: I dont want to hear about the business issues. This is your opportunity for you to respond to the allegations. [] . . . [] This is your opportunity to respond to the allegations. This is your time. I want you to tell me about that. I dont want to hear about all of these background problems with the company and perceptions.

The trial court is vested with broad discretion in ruling on the admissibility of evidence. (Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 519-520.) Allen has failed to show that the court abused its discretion. The testimony about Scioss product efficacy was irrelevant. As the trial court told Allen: You may have some issues [with the product] in that regard, but what I have to look at here today is the allegations in terms of what actions took place that were of a violent or threatening nature. So thats what I need to focus on today. [] There may be some background context that you have some interest in, but in terms of the issues the court needs to address, even if people have disputes or conflicts, there are certain ways to handle things. I need to listen to whatto the evidence thats relevant in this case.

The trial court did not abuse its discretion in steering Allen toward the relevant issues and limiting his testimony relating to problems with the efficacy of the product.

Allen contends that he was denied his due process right to cross-examine witnesses and to testify in his own behalf. We disagree

Because the right of cross-examination is fundamental, its denial or undue restriction may constitute reversible error. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) 10:6, p. 10-2, quoting McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 508-509.)

As observed in Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal.App.3d 719, 732-733 (Schraer) with respect to section 527.6 and equally applicable to section 527.8: [T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by . . . section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendants right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendants due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds. [4]

In the instant case, the trial court neither denied nor limited Allens right to cross-examine witnesses. Allen never sought to cross-examine any witness. The court did not prohibit him from cross-examining any witness and respondents never refused to be cross-examined. The evidence cited by Allen in footnote 31 of his opening brief fails to establish that Allen ever asked to cross-examine respondents or was denied the right to cross-examine any witness.

All parties were sworn as witnesses at the outset of the proceedings. Respondents introduced testimony from the parties one by one. Allen had the opportunity to respond to the testimony of each witness, including the opportunity to cross-examine the witness. Although he responded to the testimony of each, he never asserted his right to cross-examine any of them.

Moreover, the record indicates that the court would have allowed Allen to cross-examine any witness, had Allen had sought to do so. For example, at one point during the respondents examination of security officer Backus, the testimony indicated that Backus had had no personal contact with Allen. The court directed respondents counsel to wrap up. When Allen interjected, the court stated that it was going to allow respondents counsel to wrap up her examination, then Ill give you an opportunity. When respondents examination of Backus had concluded, the court inquired: Mr. Allen, any response?[5] Allen did not indicate that he wished to cross-examine Mr. Backus. Rather, he expressly stated, There is no issue with Mr. Backus, Your Honor. Allen stated he had spoken directly with Backus and Allen then continued to argue that he had never threatened violence and that God had never ordered him to commit acts of violence against those individuals.

Allen appears to be contending that the court violated his due process right to cross-examination because it did not expressly advise him that he had the right to cross-examine witnesses and did not elicit an express waiver of that right. Again, we disagree.

Allen cites the recent decision Ross v. Figueroa (2006) 139 Cal.App.4th 856, in support of this claim. In that case, Ross obtained an ex parte temporary domestic violence restraining order against her former live-in boyfriend Figueroa. A date was set for hearing on her request for a permanent restraining order. Both parties appeared in propria persona at that hearing. The referee denied Figueroas request for a continuance and ordered issuance of the permanent restraining order. The appellate court held that where the TRO was issued without notice to Figueroa, he was entitled to one continuance of the permanent injunction as a matter of right under the statute. (Fam. Code,  243, subd. (e); Ross, at pp. 864-865.) The appellate court then, in dicta, addressed issues that might arise at the hearing on remand, as the pro tempore referee had proceeded solely on the papers filed by the petitioner seeking the injunction and had refused to allow Figueroa to present his written paper in response, as it had not been timely served on Ross. As explained by the appellate court, The referee did not take any oral testimony from Ross, nor did she ask Figueroa whether he wanted to challenge any of the statements in the written submission. Moreover, when Figueroa asked whether he could submit evidence of his own, the referee answered, no.  (Ross, at p. 860.) The appellate court indicated that the apparent refusal to allow Figueroa to present evidence in his own behalf at the hearing raised serious due process concerns. (Id. at pp. 865-866.) We have discussed the due process problems with such a procedure or practice only because the pro tempore referee in this case appeared to act as if this written statement were the only form of evidence Figueroa could use to challenge Rosss request for restraining order and accompanying documents. After his request for continuance had been denied and it was revealed Figueroa had a written statement but had not served it on Ross, he asked the referee if he nevertheless could present this evidence. The referee merely answered no, and proceeded to rule, granting a permanent injunction for the maximum period of three years. (Id. at p. 866, fn. omitted.) At that point, especially in a proceeding largely used by propria personas and in which Figueroa was in fact participating on a propria persona basis, the referee should have advised Figueroa he could provide oral testimony, even though he would not be permitted to file the written statement he had failed to timely serve on Ross. It is true Figueroa had mentioned his witnesses were not present and thus he was in no position to offer their oral testimony. But he certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so. The role of a judicial officer sitting in such a court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be well counseled by skilled and knowledgeable lawyers. (Id. at p. 866, italics added.)

The appellate court continued, In a purely adversarial setting it is reasonable for the judge to sit back and expect a partys lawyer to know about and either assert or by silence forfeit even the most fundamental of the partys constitutional and statutory procedural rights. But not so in a judicial forum, such as this domestic violence court, which can expect most of those appearing before the court to be unrepresented. (Ross v. Figueroa, supra, 139 Cal.App.4th at p. 867.)

Appellant seizes upon the preceding dicta to argue that the failure of the trial court to expressly advise him that he had the right to cross-examine the witnesses denied him due process. We are not persuaded. The analysis of the court in Ross v. Figueroa, supra, 139 Cal.App.4th 856 was informed by the facts before it in which the commissioner refused to allow a continuance mandated by the statute, where Figueroa had apparently misunderstood the procedure for serving the opposing party, his own witnesses were not available, and where the referee had denied Figueroas request to present evidence of his own at the hearing. The appellate court was clearly concerned that, on remand, the referee would require that all evidence be in the form of a written statement and would refuse to allow Figueroa to present oral testimony or to cross-examine the witnesses against him. (See Schraer, supra, 207 Cal.App.3d at p. 733 [right to present oral testimony is an important due process safeguard in the expedited procedure].[6])

The present case is far different, as there was no failure of due process notice to Allen, no request for or denial of any continuance, and no indication that Allen was other than a savvy litigant. Importantly, the court not only did not deny appellant the opportunity to present evidence or testimony in his own behalf or to cross-examine witnesses, but carefully elicited Allens oral testimony, providing him ample opportunity to respond to each witness an opportunity that Allen took.

Although the better practice in these proceedings would be to inform all parties at the outset of the hearing that they would have the opportunity to present oral testimony and the opportunity to cross-examine witnesses against them, the court in the circumstances here present did not deny Allen due process by failing to advise him that he had the right to engage in cross-examination.

Nor was Allen denied due process by the commissioners receipt of the Carr declaration at the hearing. Allen did not challenge the declaration provided by Carr, who was not present at the hearing. He has therefore waived any hearsay challenge to that declaration on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 1:44, p. 1-10.)

In any event, there is no indication that the commissioner relied upon her declaration in any manner in granting the injunctions. The testimony provided in that declaration was cumulative to that provided by respondents and Backus. Any error in the commissioners considering such declaration clearly was harmless.

IV. The Norris-LaGuardia Act Does Not Apply to State Courts

In a confusing argument, Allen claims that the federal Norris-LaGuardia Act (29 U.S.C.  101-115) (the Act) prohibits California courts from issuing workplace harassment restraining orders. ( 527.8)[7] He is mistaken.

The Act provides in relevant part: No court of the United States, as herein defined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute . . . . (29 U.S.C.  101, italics added.) The Act defines  court of the United States  as a court whose jurisdiction has been or may be conferred or defined or limited by Act of Congress . . . . (29 U.S.C.  113(d).) Only federal courts meet this definition. (International Longshoremens, etc., Union v. Wirtz (9th Cir. 1948) 170 F.2d 183, 185, 187.) The Acts anti-injunction provisions apply only to federal courts, not to state courts. (McCarroll v. Los Angeles County Dist. Council of Carpenters (1957) 49 Cal.2d 45, 63; Ford v. Boeger (8th Cir. 1966) 362 F.2d 999, 1005 [Petitioners reliance upon the Norris-LaGuardia anti-injunction Act, 29 U.S.C.A. 101 et seq., is misplaced. The Norris-LaGuardia injunction limitations are imposed only upon courts of the United States. The Court of Appeals for the Third Circuit in American Dredging Co. v. Local 25, [Marine Div., Int. U. Op. Eng. (3d Cir. 1964)] 338 F.2d 837, 850-856, clearly and convincingly demonstrates why the prohibition applies only to federal courtsnot to state courts.)[8]

The superior court was permitted to issue the workplace harassment injunctions against Allen.

Disposition

The orders granting injunctions pursuant to sections 526.6 and 527.8 are affirmed. Respondents shall recover their costs in connection with these appeals.

_________________________

Kline, P. J.

We concur:

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Haerle, J.

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Richman, J.

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Analysis and review provided by Chula Vista Property line attorney.

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

[2] Although the trial court was required to find harassment by clear and convincing evidence ( 527.6, subd. (d)), [that] evidence standard was adopted for the edification and guidance of the trial court, not as a standard for appellate review. If there is substantial evidence to support the trial courts finding, it cannot be disturbed. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) (In re Marriage of Saslow (1985) 40 Cal.3d 848, 863.) We need only find that there was substantial evidence to support a determination by that higher standard. (MikeDavidov Co. v. Issod (2000) 78 Cal.App.4th 597, 606.)

[3] With respect to Puthukkerils testimony, the court inquired, Mr. Allen, how do you respond to this? Allen responded, and the court asked him follow-up questions. With respect to Mermelsteins testimony, the court again asked him, Mr. Allen, do you have any response to this? Allen again responded at some length, with additional questions put to him by the court. Following Williams testimony, the court asked? Mr. Allen? Again, Allen responded at some length, giving his version of the Austrian incident. Following security officer Backuss testimony, the court again asked Allen if he had any response and he responded. Following Ernsts testimony, the court again asked Allen to respond. Again, he did so.

[4] The Schraer court noted at this point that it did not hold, nor do we mean to imply, that every proceeding for an injunction under . . . section 527.6, subdivision (d), must in all instances proceed with oral testimony instead of upon affidavits or declarations, regardless of the circumstances. Certainly, a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases. [Citations.] We do hold, under the express language of the statute and in accordance with the requirements of due process, that the trial court in a harassment proceeding may not arbitrarily limit the evidence presented to written testimony only, when relevant oral testimony is offered. Both sides may offer evidence by deposition, affidavit, or oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by . . . section 527.6. (Schraer, supra, 207 Cal.App.3d at p. 733, fn. 6.)

[5]The Court [to respondents counsel]: Why dont you go ahead and wrap this up? I thought we had personal contacts.

Mr. Allen: Hold on. Mr. Backus and I have

The Court: Hold on. Im going to have her wrap up her examination, then Ill give you an opportunity.

Mr. Allen: Okay.

[6] Thus, although the procedures set forth in the harassment statute are expedited, they contain certain important due process safeguards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by clear and convincing proof of a course of conduct that actually and reasonably caused substantial emotional distress, had no legitimate purpose, and was not a constitutionally protected activity.  (Schraer, supra, 207 Cal.App.3d at pp. 730-731.)

[7] Allen contends this defense, if good, could apply to Puthukkeril, as well. It could not. Her injunction was granted pursuant to section 527.6the general harassment injunctionand does not even arguably involve a labor dispute.

[8] Allen has waived any claim that section 527.3 (the California statute prohibiting injunctive relief concerning a nonviolent labor dispute) precluded the issuance of the injunction under section 527.8, by his failure to raise it either below or on this appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra,  1:44, 8.229, pp. 1-10, 8-135.) In any event, we note that section 527.3 does not apply to this case. The instant actions do not involve any union or any other recognized employee organization or any terms or conditions of employment. Allens status as a former employee of Scios does not make this matter a labor dispute.