Opinion
F074606
10-10-2018
JOHN WASH, Plaintiff and Appellant, v. MARIA S. BANDA-WASH, Defendant and Respondent.
John Wash, in pro. per., for Plaintiff and Appellant. Daniel L. Harralson Law Office and Daniel L. Harralson for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CECG01668)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Lisa M. Gamoian, Judge. John Wash, in pro. per., for Plaintiff and Appellant. Daniel L. Harralson Law Office and Daniel L. Harralson for Defendant and Respondent.
Before Hill, P.J., Levy, J. and Franson, J.
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Appellant John Wash (John) contends the trial court erred when it denied his petition under Code of Civil Procedure section 527.8 for a workplace violence restraining order against his brother's widow. The trial court concluded the applicable standard of proof required clear and convincing evidence and found John failed to meet this burden of proof.
All unlabeled statutory references are to the Code of Civil Procedure.
The standard of appellate review plays a significant role in the outcome of this matter. That standard of review is tailored specifically to the trial court's determination that an appellant failed to carry his or her burden of proof. A failure-of-proof determination will be upheld by the reviewing court unless the evidence compels a finding in favor of the appellant as a matter of law. A finding is compelled when the appellant's evidence is (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's).) As explained below, John's evidence was not of such a character and weight as to leave no room for a judicial determination that it was insufficient to establish the statutory elements for obtaining a restraining order. Thus, John has not shown a finding in his favor was compelled as a matter of law.
We therefore affirm the order denying the petition.
FACTS AND PROCEEDINGS
The Parties and the Property
John Wash and Thomas Wash are the sons of Robert Wash, who died in September 2005. The sons inherited approximately 100 acres of agricultural land located at 3535 and 3473 South Temperance Avenue, Fresno, which is described as the family farm and the childhood home of John and Thomas.
Respondent Maria Salud Banda Banales (Maria) married Thomas Wash and they had two sons. Thomas died in November 2011, at the age of 59. After Thomas's death, Maria became a co-owner of the 100 acres with John and they both live on the property in different houses. John and Maria have been involved in multiple lawsuits against one another. (See e.g., Maria Wash v. John Wash (Sept. 12, 2017, F071135) [nonpub. opn. affirming judgment entered pursuant to settlement agreement]; Maria Banda v. John Wash (Feb. 3, 2016, F069417) [nonpub. opn. affirming an order entered under § 527.6 enjoining John from harassing Maria and her sons].)
John asserts that he does business as Missouri Hill Farm, which is a fruit operation (citrus and plums) located on the 100 acres and his sole source of income. Maria operates a palm nursery that occupies a few acres of the property. The Current Dispute
In this dispute, the parties describe the 100 acres as co-owned agricultural property and themselves as co-habitants of the property. The property contains a well with an irrigation pump. The use of the well and pump is part of this and other disputes.
John alleged that in May 2016, his employee Guy Hutchins drove a quad to the pump and, when Hutchins got off, Maria ran up behind him, hit him on the back, and yelled for him to "get out of here." John alleged that, after Hutchins explained that he needed to service the pump, Maria, one of her sons, and Lynne Stuart would not allow him to get to the pump and, as a result, Hutchins left. John also alleged that Maria routinely stalks, follows, videotapes and photographs Hutchins, himself and his guests on the property. The declaration of Hutchins corroborates these events.
John's allegations also describe an incident that occurred on November 10, 2015, and involved an independent contractor, Hugh Lingar, and his worker. Lingar and the worker were picking fruit from John's trees. John alleged that Maria went into the orchard and started yelling, screaming and harassing Lingar and his worker. Lingar told John that he was fearful for his safety as Maria might get violent or file false police reports against him. Pleadings
On May 24, 2016, John filed a petition for workplace violence restraining orders against Maria seeking protection for his employees Guy Hutchins and Hugh Lingar. The next day, the trial court filed a notice of court hearing setting a June 20, 2016, hearing date on the petition and denying the request for temporary restraining orders. The hearing was continued to August 22, 2016.
In June 2016, Maria filed a response to the petition using mandatory Judicial Council form WV-120 (rev. Jul. 1, 2014). The response stated Maria did not agree to the orders requested. The box for item 10 in the response (justification or excuse) was checked and an unsigned attached document provided Maria's explanation for why her actions were justified or excused.
The attached document stated Maria "never hit or touched Guy Hutchins at any time on any occasion." It also asserted John "does not have the right to use any of the irrigation pumps on the property unless and until [he] files a $10,000 bond to secure costs and damages there[to]." Hearing
On August 22, 2016, a hearing was held on the petition. John and Hutchins made statements at the hearing, which Maria described in her respondent's brief as testimony even though the reporter's transcript does not show the statements were made under oath. However, an unsigned minute order states John and Hutchins were "sworn and testified." Consequently, for purposes of this appeal, we accept Maria's characterization of those statements at the hearing as testimony. Maria attended the hearing, but did not testify.
In rendering its decision, the trial court expressed concern about ruling in favor of John when the subject of access to the pump and other matters were the subject of orders issued by other judges. The court also stated that the statements provided by John and Hutchins were generalizations and conclusions, lacking specific facts. The court then stated: "Therefore, the Court finds that [John] has not met [his] burden of clear and convincing evidence and [his] request for a restraining order is denied." The unsigned minute order filed after the hearing stated: "The Court finds insufficient clear and convincing evidence to warrant issuance of a restraining order. Petition is denied." Appeal
No judgment was filed in this case. On October 20, 2016, John filed a notice of appeal asserting the August 22, 2016, order denying his petition was appealable pursuant to section 904.1, subdivision (a)(6), which provides that an appeal in a civil case may be taken from "an order ... refusing to grant ... an injunction."
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A. Workplace Violence Safety Act
In 1994, the Legislature enacted legislation known as the Workplace Violence Safety Act. (Stats. 1994, ch. 29, § 1.) The legislation added section 527.8 to the Code of Civil Procedure and amended sections 273.6 and 12021 of the Penal Code. (Stats. 1994, ch. 29, §§ 2-4.) Section 527.8 enables an employer to seek an order enjoining a party from harassing, attacking, stalking or threatening its employees. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 536 (Garbett).) Subdivision (a) of section 527.8 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 order after hearing 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."
An order "shall issue" if the "respondent engaged in unlawful violence or made a credible threat of violence." (§ 527.8, subd. (j).) The statute defines a "'[c]redible threat of violence'" 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).) In addition, it defines "'[u]nlawful violence'" as "any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code" and excludes lawful acts of self-defense or defense of others. (§ 527.8, subd. (b)(7).)
B. Burden of Proof
An employer seeking an order under section 527.8 has the burden of proof. Subdivision (j) of section 527.8, provides in relevant part: "If the judge finds by clear and convincing evidence that the [defendant] engaged in unlawful violence or made a credible threat of violence, an order shall issue prohibiting further unlawful violence or threats of violence."
C. Standard of Review on Appeal
Generally, when an appellate court reviews an order granting or denying a petition for "an order after hearing on behalf of [an] employee" (§ 527.8, subd. (a)), the appellate court resolves all factual conflicts and questions of credibility in favor of the prevailing party, and draws all reasonable inferences in support of the trial court's findings. (Garbett, supra, 190 Cal.App.4th at p. 538.) When the petition is granted, the appellate court determines whether the necessary factual findings are supported by substantial evidence. (Ibid.)
In contrast, when the petition is denied and the trial court frames its determination by stating the employer did not carry its burden of proof, the appellate court does not apply the substantial evidence standard to the trial court's failure-of-proof determination. The standard of review applicable to a trial court's failure-of-proof determination has been addressed by the Fifth District in a variety of contexts over the past decade. Three of the cases have been published. (See Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390; Dreyer's, supra, 218 Cal.App.4th at p. 838; Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965.)
"'In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.... [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Dreyer's, supra, 218 Cal.App.4th at p. 838.)
Based on our earlier decisions and the decisions of other districts, we conclude the finding-compelled-as-a-matter-of-law standard applies to the trial court's determination that John failed to carry his burden of proof. (See e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Thus, we reject the parties' contentions that the substantial evidence standard of review applies to the trial court's determination. II. LEGAL ISSUES RAISED
A. Contentions of the Parties
1. John's Statement of Issues
John's opening brief lists four issues under the heading "QUESTIONS ON APPEAL." First, does section 527.8 authorize separate civil actions for the purpose of obtaining injunctions against workplace violence and harassment? Second, does a pending civil action involving the same parties preclude an employer from filing a petition for workplace violence protection where the employee for whom protection is sought is not a party to the civil action and the pending civil action does not include a claim for employee protection from workplace violence? Third, when co-owners are involved in a land dispute, does the workplace violence protection provided by section 527.8 extend to a co-owner's employees who are threatened or attacked by the other co-owner? Fourth, does an injunction granted under section 526 to protect the parties' real property prevent a party from seeking an order under section 527.8?
2. Maria's Contentions
Maria contends the trial court exercised jurisdiction over John's petition and did not make any implied or explicit findings relating to a lack of personal or subject matter jurisdiction. If this contention is true, it logically implies that none of the four legal issues set forth in John's opening brief are a potential source of trial court error. In other words, Maria impliedly contends that none of the four issues was decided against John. In her view, the trial court based its ruling on John's failure to meet his burden of proof and not on any of the legal issues raised by John.
B. Interpreting the Trial Court's Decision
Based on the reporter's transcript from the August 22, 2016, hearing and the related minute order, we interpret the trial court's decision to deny the request for a restraining order as being based on its finding "that [John] has not met [his] burden of clear and convincing evidence." Under this interpretation, the trial court did not decide the legal issues raised by John in this appeal in a manner that was adverse to John.
John may have raised the legal issue related to the applicability of section 527.8 because of a concern that one or more of those issues might be decided against him on appeal. Thus, he may have believed he would not establish reversible error, unless he showed those legal issues provided no grounds for affirming the trial court's ultimate decision to deny his petition.
Under the circumstances presented in this appeal, we conclude John, as the employer of Hutchins and Lingar, would have been entitled to the issuance of an order after hearing if he established the statutory elements contained in section 527.8. In other words, the prior litigation between Maria and John and the fact that they co-owned real property that was the location of the alleged workplace violence and threats did not operate in any way to bar the issuance of an order after hearing pursuant to section 527.8. III. FAILURE TO MEET BURDEN OF PROOF
A. Findings Compelled as a Matter of Law
As set forth in part I.C., ante, the question of whether the trial court erred in determining John failed to meet his burden of proof is reviewed by this court under the finding-compelled-as-a-matter-of-law standard. This standard is met only if the appellant's evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Dreyer's, supra, 218 Cal.App.4th at p. 838.) As explained by the Second Appellate District, establishing these two elements is difficult:
"Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof." (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)
We next consider whether John has established the two elements of the finding-compelled-as-a-matter-of-law standard.
B. Uncontradicted and Unimpeached Evidence
Here, Maria did not testify at trial or present the testimony of other witnesses. The attachment to her response to the petition was not signed by her, under penalty of perjury or otherwise. As a result, the factual assertion made in her response to the petition cannot be regarded as the equivalent of an affidavit or declaration that the trial court could regard as evidence. (See Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 732-733 [use of declarations].) Based on the record before us, we conclude that Maria did not contradict or impeach the evidence presented by John as to whether Maria "engaged in unlawful violence or made a credible threat of violence." (§ 527.8, subd. (j).)
C. Character and Weight of John's Evidence
Having established the first element of the finding-compelled-as-a-matter-of-law standard, John will be entitled to a reversal of the trial court's order denying his petition if the record demonstrates his evidence was of "'"such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Dreyer's, supra, 218 Cal.App.4th at p. 838.) We conclude there was room for a judicial determination that John's evidence was insufficient to support a finding that Maria (1) engaged in unlawful violence or (2) made a credible threat of violence.
1. Unlawful Violence
Subdivision (b)(7) of section 527.8 states that "'[u]nlawful violence'" includes assaults, batteries and stalking and excludes lawful acts of self-defense or defense of others. The statutory exclusion does not mention acts in defense of real or personal property.
Penal Code section 240 defines an assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." The meaning of this statutory text was discussed in People v. Williams (2001) 26 Cal.4th 779 at pages 785 through 791. The court concluded that "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) Thus, an assault does not require contact with the victim—that is, the application of physical force to another. The absence of contact distinguishes an assault from a battery.
Penal Code section 242 defines a battery as "any willful and unlawful use of force or violence upon the person of another." California courts have recognized that a slight touching may constitute a battery, if the touching is done in a rude or angry way. (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006.) Stated another way, "[t]he force at issue need not be violent or severe, and it need not cause bodily harm or pain." (Ibid.)
Penal Code section 646.9, subdivision (a) states: "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking." This statutory text has been interpreted to mean the elements of stalking are "(1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury." (People v. Ewing (1999) 76 Cal.App.4th 199, 210.)
John contends Maria engaged in unlawful violence by hitting Hutchins in the back. John did not witness the event. As a result, the evidence that a battery occurred consists of the May 2016 declaration of Hutchins attached to John's petition and Hutchins' testimony at the August 22, 2016, hearing. Under the applicable principles of appellate of review, we must resolve all questions of credibility in favor of the prevailing party. (Garbett, supra, 190 Cal.App.4th at p. 538.) Accordingly, we infer the trial court found Hutchins's testimony was not credible. An express or implied finding that all or part of a witness's testimony is not credible is subject to the following rule: "A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. [Citations.]" (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for disbelieving a witness include the factors listed in Evidence Code section 780, which include the witness's interest in the matter. (Evid. Code, § 780, subd. (f); see Pierce v. Wright (1953) 117 Cal.App.2d 718, 723 [court is not bound to believe interested witness].) Under the circumstances of this case, Hutchins was an interested witness because he would have been protected by the order sought by John. Accordingly, the trial court had a rational ground for discounting his testimony. Therefore, the trial court was not compelled as a matter of law to find that Maria had committed a battery against Hutchins.
2. Credible Threat of Violence
The analysis of John's evidence that Maria made a credible threat of violence follows the same path. The trial court was free to disbelieve the testimony and declarations of John and Hutchins and the declaration of Lingar because they were interested in the matter and, thus, there was a rational ground for discounting their testimony. Consequently, the trial court was not compelled as a matter of law to find that Maria made a credible threat of violence against one or more of John's employees.
DISPOSITION
The order denying the petition is affirmed. Respondent shall recover her costs on appeal.