Opinion
2d Civil No. B226719 2d Civil No. B227108 2d Civil No. B227205 2d Civil No. B227207
11-28-2011
COUNTY OF SANTA BARBARA, Plaintiff and Respondent, v. KATE SMITH, Defendant and Appellant.
Kate Smith, in pro per, Appellant Dennis Marshall, County Counsel, County of Santa Barbara and Victoria Parks Tuttle, Deputy, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Super. Ct. No. 1342713, No. 1342711, No. 1342712, No. 1342715) (Santa Barbara County)
Kate Smith appeals from a Workplace Violence Safety Act injunction to cease harassing and threatening four Santa Barbara County employees. (Code of Civ. Proc., § 527.8.) The trial court ordered appellant to stay 15 yards away from the employees and not enter the county administration building where they work. We affirm.
The trial court issued protective orders for each employee which are the subject of four appeals. On September 28, 2010, we ordered the appeals consolidated.
Facts and Procedural History
Appellant purports to be a whistleblower activist who exposes government corruption in a " 'hard-hitting,' 'pull no punches' way." Appellant claims that she is entitled to special accommodations under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) because she is mentally ill and "a sacred activist."
On March 29, 2010, County of Santa Barbara filed petitions under the Workplace Violence Safety Act (Code Civ. Proc., § 527.8) to enjoin appellant from threatening Ethan Duffy, Eric Friedman, Araceli Velasco, and Lael Wageneck who work in a county administration building in downtown Santa Barbara. The trial court granted the petitions based on three days of testimony that appellant was harassing the employees and engaging in threatening conduct.
All statutory references are to the Code of Civil Procedure.
Ethan Duffy, a receptionist at the Santa Barbara County Counsel office, testified that appellant made an unannounced visit on March 16, 2010, to see Chief Assistant County Counsel Steve Underwood. Upon learning that Underwood was not available, appellant demanded that Duffy disclose confidential county and court phone numbers. Appellant persisted for 10 minutes and was angry and confrontational. Duffy feared for his safety and believed that appellant was capable of physical violence. After appellant left, Duffy locked the office door and required that visitors announce themselves and be buzzed in.
Eric Friedman, an administrative assistant for County Board of Supervisor Salud Carbajal, had a similar encounter with appellant on February 16, 2010. Appellant demanded a meeting with Supervisor Carbajal and refused to disclose the purpose of the meeting. Appellant was angry, confrontational, and verbally combative. Friedman tried to walk away but could not open the security door. She came right up behind Friedman, blocked the exit, and yelled at him. Friedman knew that appellant was trained in martial arts and thought she had a weapon. Trapped, Friedman pretended to open the security door to divert appellant. Appellant turned and stormed off. Appellant's prior visits were volatile but this time was different. Appellant was angry, invaded Friedman's personal space, and "was literally within a foot of me, and yelling." Friedman was so fearful of appellant, that he avoided public entrances to his work station.
Araceli Velasco, a receptionist for the County Board of Supervisors, testified that appellant visited early in the morning on March 2, 2010. Velasco was alone and had just set up a coffee pot in the reception area. Appellant was mad that the coffee was not ready, grabbed the coffee pot with both hands, and gave Velasco an angry look. Velasco thought about using the desk as a safety barrier but there was no escape. Appellant left the reception area and she was very upset.
Velasco was scared because appellant invaded her personal space and had bullied her in the past. When Velasco told appellant that the coffee was not ready, appellant acted like it was a conspiracy, "as if I had done it on purpose. . . ." On a prior occasion, appellant accused the board of supervisors of doing to the public "what had been done to her, which was butt-fucked in the ass."
Lael Wageneck worked in the same building and in charge of televising the board of supervisor meetings. On March 4, 2010, appellant barged into Wageneck's office and said: "I brought my handgun to the last [board of supervisors] meeting, and I'm going to bring my handgun to the next meeting." Appellant blocked the door, mentioned the handgun four times, and gestured with her hand as if it was handgun. Wageneck feared for his safety and signaled a co-worker for help.
Appellant told Wageneck, "[I]f you don't know the difference between a handgun and a handgun, you're pretty stupid." Appellant was combative and condescending, and accused Wageneck of having something to do with appellant's court case against Santa Barbara County CEO Mike Brown.
Wageneck installed a peep hole in his office door and feared that appellant would carry out her threat and bring a weapon to the next board of supervisors meeting. On prior occasions, appellant brought a large ceramic hammer and three foot sword to board meetings. Appellant said the weapons were "little prop[s]. It's not a big deal."
The trial court found, by clear and convincing evidence, that appellant was annoying and threatening Duffy, Friedman, Velasco, and Wageneck. "We've had four witnesses that have given very compelling testimony about how you have upset them; there's a pattern of activity here. . . . [W]e're not talking about your problems with the board of supervisors and these various other people. We're talking about these four people. Their testimony constitutes a pattern of harassment."
During the trial, appellant bullied Duffy, Friedman, Velasco, and Wageneck who were visibly shaken. The trial court found: "You performed the exact activity which you were accused of, and you did it right here in the court. I see that you have a hard time controlling your outbursts, even here in the courtroom, where you know that everybody is looking at you and your words are being taken down by the court reporter. I have no doubt that you are not controlling yourself with these folks. [¶] I understand that you are indicating that these folks are actually part of a much bigger picture. I am only looking at these four people. . . . They are coming to court and they are telling me that you're yelling at them, that you are belittling them, that you are invading their personal space, and I believe them.."
Granting the petitions, the trial court ordered appellant to stay 15 yards away from Duffy, Friedman, Velasco, and Wageneck. Appellant was also ordered not to enter the county administration building where they worked.
Workplace Violence Safety Act
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. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333.) The grant of injunctive relief rests in the sound discretion of the trial court and will not be disturbed on appeal absent a showing of clear abuse of discretion. (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 952.) As in any substantial evidence case, we resolve all factual conflicts and questions of credibility in favor of the prevailing party, and draw all reasonable inferences in support of the judgment. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538.)
Section 527.8, subdivision (a) states 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 . . . ."
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Appellant argues that the threats were not clear, explicit, and unequivocal. Section 527.8, subdivision (b)(2) provides that a " 'Credible threat of violence' is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, . . . and that serves no legitimate purpose." Imminent lawless action is not required. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1257.) Section 527.8 is modeled after section 527.6 which provides that a person who has suffered harassment may seek a temporary restraining order and injunction against the harasser. (Scripps Health v. Marin, supra, 72 Cal.App.4th at p. 333.) "[I]t is quite clear the Legislature intended to provide employers with the remedy of injunctive relief to protect their employees by preventing unlawful violence where it is reasonably likely such unlawful violence may occur in the future." (Id., at p. 335.)
Appellant engaged in threatening conduct to frighten Duffy, Friedman, Velasco, and Wageneck. Appellant told them she was trained in martial arts, that she was mentally ill and suffered from post traumatic stress disorder, and that she intended to bring weapons into the building. Appellant engaged in threatening conduct if the coffee was not ready and was verbally combative if a county official was not available or staff did something appellant did not like. Based thereon, the trial court did not abuse its discretion in granting the injunction.
First Amendment
Appellant argues that the injunction violates her First Amendment rights but concedes that she has no constitutional right to harass or threaten a public employee. (See Near v. Minnesota (1931) 283 U.S. 697, 708 [75 L.Ed. 1357, 1360]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 485-486.) Where a credible threat of violence is made, injunctive relief is appropriate. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 537.) It is irrelevant whether the threat is conveyed by conduct or speech. (Id., at p. 539.)
Appellant claims that the injunction violates her speech rights because she has been ordered not to enter the county building where the board of supervisors conducts public meetings. In City of San Jose v. Garbett, supra, 190 Cal.App.4th 526, defendant was ordered to stay away from city hall and protected individuals, but permitted to attend city council meetings if he used specified entrances and agreed to be searched. (Id., at p. 536, fn. 2.) Defendant was further ordered not to file any documents personally with the city clerk. (Ibid.) The Court of Appeal rejected the argument that the injunction was a prior restraint. " '[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.' [Citations.]" (Id., at p. 537.)
The same principle applies here. Appellant has a history of harassing and threatening county employees on random days of the week, irrespective of when the board of supervisors conducts public meetings. Appellant admitted that she "couldn't resist" entering the building and visiting Wageneck, Duffy, Velasco, and Friedman. The trial court properly concluded that appellant's speech activities do not trump the safety of county employees or County's duty to provide a safe workplace. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Cruelty USA, Inc. supra, 129 Cal.App.4th at p. 1250 [construing section 527.6 anti-harassment order].)
Appellant claims that County is preventing her from addressing the board of supervisors on important public issues. We reject the argument. There is no evidence that the section 527.8 petitions were retaliatory or intended to silence appellant's political speech. (See e.g., USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 445.) Appellant is free to write to the board of supervisors and use the county videoconferencing facilities in Santa Maria to address the board.
"[T]he aim of the order is to prevent harm of the nature suggested by the threat." (City of San Jose v. Garrett, supra, 190 Cal.App.4th at p. 545.) The injunction is a reasonable time, place, and manner regulation, serves a significant government interest, and leaves open alternative avenues of communication. (See Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 367-368.) County has a compelling "interest in protecting individuals from the fear of violence, the disruption fear engenders and the possibility the threatened violence will occur.' [Citation.] '[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.' [Citation.]" (People ex rel Gallo v. Acuna (1997) 14 Cal.4th 1090, 1122.)
The argument that appellant is entitled to a special First Amendment accommodations under the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) is also without merit. Even a disabled person has no statutory or constitutional right to threaten and harass public employees.
Appellant's remaining arguments have been considered and merit no discussion.
The judgment is affirmed. County is awarded costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Denise Motter, Judge
Superior Court County of Santa Barbara
Kate Smith, in pro per, Appellant
Dennis Marshall, County Counsel, County of Santa Barbara and Victoria Parks Tuttle, Deputy, for Respondent.