Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. N06-0869
Richman, J.
Appellant Thomas Lutge appeals from a workplace restraining order obtained by respondent Eskanos & Adler barring appellant from contacting respondent’s former employee Ryan White (White), White’s family members, and all of respondent’s current employees. Appellant contends the order was improperly issued for multiple reasons, all of which we reject below. Accordingly, the order is affirmed.
I. Background
Respondent, a law firm specializing in debt collection, was retained by a company to collect a debt purportedly owed to it by appellant. On April 22, 2006, White, one of the employees handling the matter on behalf of respondent, received the first of two voicemail messages left for him by appellant: “Ryan White, it’s Tom Lutge. Hey, haven’t talked to you for a few days. I’m calling to see if you’re around on a Saturday. Love to pay your little faggot ass a visit. So, I love going after lawyers, ‘cause they get paid by the hour. And anytime you can basically toast a lawyer, man, you’re doing good for America. So, Ryan White, Thomas Henry Lutge. You’re on my little scope, baby, and I will be getting you. Thank you, Mr. Ryan White. You take care. I’ll be calling. Bye bye.”
As recognized by the trial court, the facts concerning the underlying debt are irrelevant to the issues presented by respondent’s petition for a restraining order and we omit them from our discussion here.
White received the second message on May 19, 2006: “Ryan, Thomas Lutge. File number 063856-6. Hey, been looking for you, tried to find you at your office, but I just drove by your place of residence, I will find you. Anytime criminal attorneys perform criminal acts, I feel it’s my duty to the American public to make sure that I’m in the face of that criminal attorney performing his criminal acts. So you and the people at GM have decided in regards to the criminal use of my credit card to forego any legal remedies and go straight to the credit people. That means your butt is open, Ryan, so I am always around. Thank you. You will know that. 664-8433, 415. More than happy to meet you any place, anytime, Ryan. You name the place. You name the time. I’ll be there. Ok, Ryan [laughs]. I love pussy little freakin’ attorneys, especially little criminals like you. So best of luck in your life, Ryan. Thomas Lutge. I will be there, I will find you. I do not accept criminal activity real well. Take care Ryan. Bye-bye.”
On May 26, 2006, respondent filed a petition seeking a temporary restraining order and an injunction prohibiting appellant from contacting White or his family members pursuant to Code of Civil Procedure, section 527.8. Transcripts of the voicemail messages were appended to the petition, as was the transcript of a conversation between White and an anonymous caller.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
That same day, the court issued a temporary restraining order and an order to show cause (OSC), scheduling a hearing on the petition for June 9, 2006. Due to issues pertaining to service of the petition and OSC on appellant, the matter was continued multiple times, finally coming on for hearing before Commissioner Ronald Creighton on November 17, 2006.
At the November 17 hearing, Kurtiss Jacobs, counsel for and an employee of respondent, introduced an audio recording of the two voicemail messages left by appellant for White, as well as transcripts of the messages. Jacobs also introduced what can be described as a hostile letter dated April 14, 2006 from appellant to “Sharon, Stacy, Ryan and Connie” at respondent law firm. At the time of the hearing, White was no longer an employee of respondent and did not testify. Appellant, who was represented by counsel Herman Franck, testified on his own behalf.
Appellant admitted leaving the two messages for White and did not object to the introduction of the transcripts. However, appellant objected to the transcript and audio recording of the conversation between White and the anonymous caller, which objection the trial court sustained.
At the conclusion of the hearing, Commissioner Creighton issued a restraining order enjoining appellant from contacting White, his family members, and all employees of respondent for two years. He explained: “[B]ased upon all of the evidence, the testimony, both oral, documentary, I believe this is an appropriate case to interdict pursuant to the . . . Civil Harassment and Prevention Act by clear and convincing evidence. I am going to issue the restraining order.”
This timely appeal followed.
I. Discussion
A. The Statutory Framework
Section 527.8, subdivision (a) provides in pertinent 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 and, at the discretion of the court, any number of other employees at the workplace . . . .” “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).) “[B]efore an injunction shall issue the court must find by clear and convincing evidence that to not issue the injunction would subject the targeted employee to great or irreparable harm, or in other words further unlawful violence or the threat thereof.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332 (Scripps Health).)
An order granting an injunction is reviewed on appeal for the sufficiency of the evidence to support the judgment. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 646, citing 6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, §§ 250, 251, pp. 216–218.) “Generally, in reviewing a permanent injunction, we resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences that support the trial court’s order. [Citation.] However, where the ultimate facts are undisputed, whether a permanent injunction should issue becomes a question of law, in which case the appellate court may determine the issue without regard to the conclusion of the trial court. [Citation.]” (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 688-689.)
With this statutory framework in mind, we turn to respondent’s petition.
B. The Petition Was Not Rendered Moot By The Fact That Ryan White Was No Longer An Employee Of The Firm At The Time Of The Hearing
As a procedural matter, appellant argues here, as he argued below, that the petition was moot since at the time of the hearing, White was no longer an employee of respondent. Section 527.8, subdivision (a) authorizes an employer to seek a restraining order “on behalf of the employee.” According to appellant, this means that “[w]hen Ryan White left the employment, the case ended. Basically, it’s a full defense that he’s gone. He’s no longer an employee.” The trial court rejected appellant’s argument. So do we.
First, the complaining party was respondent, not White. That is, the petition was brought by the law firm, not the individual employee. As a result, White’s departure from the firm did not deprive the petition of a plaintiff.
Additionally, while White was apparently the sole recipient of appellant’s voicemail messages, appellant sent at least one hostile letter addressed to “Sharon, Stacy, Ryan and Connie” at respondent law firm. Thus, there was reason to believe that appellant’s threats extended past White to other employees, employees that respondent was entitled—if not obligated—to protect.
Appellant argues that if respondent intended to seek protection for employees other than White, it should have amended its petition: “In effect, the employer was making the application on behalf of itself. If they meant to add in other people, they could have sought leave to amend to add other people, but of course they never did.” As respondent notes, however, courts routinely grant leave to amend pleadings to conform to proof. (See 5 Witkin, Cal. Procedure(4th ed. 1997) Pleading, § 1143, pp. 598-599.) We decline to conclude that White’s departure from the firm rendered the entire petition moot simply because respondent did not expressly seek leave to amend the petition to name additional employees. To the contrary, that was clearly the intent of what occurred at the hearing, when counsel for respondent argued that the order should be extended to protect all employees of the firm. Indeed, the language of the statute itself authorizes the court to issue the restraining order on behalf of “any number of other employees at the workplace. . . .” (§ 527.8, subd. (a).) And finally, as the trial court observed, although White was “no longer an employee, . . . that [did] not necessarily mean he no longer . . . need[s] the protection of a restraining order.”
In a related point, identified by appellant as one of four “issues on appeal” but not discussed anywhere in his opening brief, appellant suggests that White’s absence at the hearing constituted a fatal defect for the additional reason that he was the only witness to the voicemail messages, and that without his testimony respondent had no case. As counsel for respondent stated at the hearing, however, we’re “gonna let defendant’s words speak for us.” In other words, all the evidence respondent needed was the voicemail messages, which were introduced without objection by respondent’s counsel. And appellant admitted to leaving the recordings. Consequently, there was no need for White to testify at the hearing.
C. There Was Substantial Evidence Supporting The Issuance Of The Injunction
Turning to the merits of respondent’s petition, appellant contends that there was insufficient evidence to support the issuance of the restraining order because the trial court found the voicemail messages to be merely “cynical,” which is not the basis for a workplace violence restraining order. He submits instead that the messages did not amount to a credible threat of violence as a matter of law. Simply put, appellant is wrong.
First, while the trial court did indeed invoke the word “cynical” in describing the messages left by appellant for White, the court made clear it was merely describing the tone of the messages, not the content: “I listened to the . . . audio. You could use the term colorful. I would be more inclined to use the term cynical. That would be the tone of voice that I would attach to the recordings.” The court was not, as appellant would have us believe, finding that the messages were not threatening and were instead “cynical” at most.
Tone of voice aside, the content of appellant’s messages leaves no doubt that they constituted a credible threat of violence. Some of appellant’s more aggressive statements in the first message included a reference to paying White’s “little faggot ass a visit,” talk of toasting lawyers which is good for America, and telling White that he is on appellant’s “little scope.” And most directly to the point, he stated, “I will be getting you,” which a reasonable person would perceive to be a threat. In the second message, appellant threatened multiple times that “I will find you,” claiming he had looked for White at the office and had driven by his residence. He also threatened, “[Y]our butt is open, Ryan, so I am always around.” At the hearing, counsel for respondent generously categorized these messages as “thinly veiled threats.” There was nothing thinly veiled about them. They were, in fact, blatant threats of violence.
At the hearing, appellant made what can best be described as a feeble attempt to explain away the threatening statements. The gist of his explanation was that he actually meant he was going to turn the case over to his attorney, who would see to it that the law was followed. Specifically, he claimed that when he said, “That means your butt is open, Ryan,” he really meant, “Herman Franck will eventually be on the case, and Herman Franck is gonna drag him through whatever it takes to make sure the law is followed.” Similarly, when asked what he meant when he said “anytime you can basically toast a lawyer, that you’re doing good for America,” he responded that he really meant, “Herman Franck’s gonna rake him over the coals.” He claimed that when he said, “I will be getting you,” he actually meant, “Herman Franck will be on the case. And I will make sure that the laws are followed.” He testified that when he said, “I will be there, I will find you,” he meant “Herman Franck will be there, Herman Franck will find you.” And when he said, “I was calling to see if you’re around on Saturday and love to pay your little faggot ass a visit,” he claimed he actually meant that Franck would see White in court. Appellant also denied that he had driven by White’s residence, despite having stated that he did so in the second message.
Appellant’s ineffectual explanations as to the true meaning behind his messages defy credulity. As counsel for respondent observed during closing argument, “It’s just not plausible.” And as the trial court summed it up, “[F]or Mr. Lutge to say that he was referring to Mr. Franck as the person who would be doing some of the things that would be identified in . . . the messages that he left is far-reaching to me.” We agree, leaving us with the conclusion that the words meant exactly what they said—that appellant was going to find and “get” White. This is most certainly substantial evidence of a credible threat of violence.
Having concluded that there is substantial evidence supporting the trial court’s finding that the voicemail messages constituted a credible threat of violence, we turn to the issue of whether there was substantial evidence that appellant was likely to commit acts of violence in the future. (See Scripps Health, supra, 72 Cal.App.4th at p. 331 [“To obtain a permanent injunction under section 527.8, subdivision (f), a plaintiff must also establish great or irreparable harm would result to an employee without issuance of the prohibitory injunction because of the reasonable probability the wrongful acts will be repeated in the future.”].) And we conclude there was.
The record shows that as a result of appellant’s threatening voice mail messages to White, respondent ceased its efforts to collect the debt until it could get a restraining order in place to protect its employees. And after it ceased its collection efforts, appellant made no effort to contact respondent. However, it is reasonable to believe that once the firm resumes its collection efforts, appellant will likely resume his threatening tactics since he clearly took such strong exception to respondent’s attempts to collect the debt.
In an attempt to refute this conclusion, appellant testified that because his attorney was now on the case, he had no intention of contacting respondent law firm in the future. However, having disbelieved appellant’s testimony that his messages simply meant his attorney would be handling the case, the trial court could likewise have found this testimony lacking in credibility and concluded, to the contrary, that appellant would resume his threatening behavior if respondent resumed its collection efforts. This, we conclude, constitutes substantial evidence that appellant is likely to repeat the threatening conduct in the future, and the injunction was clearly warranted.
D. No Error Resulted From The Testimony Of Respondent’s Counsel
In another argument, appellant takes exception, as he did below, with the trial court permitting Kurtiss Jacobs, counsel for respondent, to testify at the hearing. He submits, “We all know that attorneys are not allowed to be witnesses,” citing California Rules of Professional Conduct, rule 5-210 (rule 5-210). He complains that “[a]ll [Jacobs] knew was hearsay evidence, as he was not a witness in any real sense to any actual fact.”
Rule 5-210 provides in pertinent part, “A member shall not act as an advocate before a jury which will hear testimony from the member unless: (A) The testimony relates to an uncontested matter; or (B) The testimony relates to the nature and value of legal services rendered in the case; or (C) The member has the informed written consent of the client. . . .”
We first observe that rule 5-210 applies to jury trials and is therefore inapplicable to the case at hand. In fact, the comments to the rule specifically state, “This rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying before a judge.” Additionally, this was a unique situation in which Jacobs was not only counsel for the employer seeking a workplace restraining order, but was also an employee of the employer and was therefore one of the individuals to be protected by the order. Thus, it was not per se improper for Jacobs to testify.
And even if the trial court erred in permitting Jacobs to testify, which it did not, appellant has not identified any manner in which he was prejudiced by Jacobs’s testimony. To the contrary, appellant was successful in prohibiting Jacobs from testifying to anything of substance. Jacobs attempted to testify regarding respondent’s collection practices, but counsel for appellant repeatedly objected, which objections the trial court consistently sustained, ultimately forcing Jacobs to settle for requesting that the court take judicial notice of the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1601 et seq.) and the State Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.). In Jacobs’s own words, “Your Honor, I testified to nothing. He objected to everything, you sustained it all. It was all stricken.” It is thus difficult to see how what little of Jacobs’s testimony there was in the record presented any harm to appellant.
III. Disposition
The order for an injunction prohibiting violence or threats of violence by appellant against Ryan White, his family members, and employees of respondent is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.