Opinion
C084030
05-30-2018
SAN JOAQUIN COUNTY COUNSEL'S OFFICE, Plaintiff and Respondent, v. ROGER TOWERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CV-UWV-2016-0010753)
Roger Towers appeals from a restraining order issued against him pursuant to Code of Civil Procedure section 527.8, which allows an employer to obtain such an order where an employee has suffered unlawful violence or a credible threat of violence. San Joaquin County Counsel's Office (County Counsel) sought the order after Towers appeared angry and agitated at meetings of the San Joaquin County Planning Commission and San Joaquin County Board of Supervisors, and personally blamed San Joaquin County Community Development Department employee K.S. and a consultant, A.S., for zoning restrictions preventing him from developing his land.
Further statutory references to sections of an undesignated code are to the Code of Civil Procedure.
The order prevented Towers from harassing, threatening, stalking, or contacting, K.S. and A.S. It further prevented Towers from entering the employees' workplace, or attending planning commission or board of supervisors' meetings without first contacting the sheriff's department to arrange for a deputy to be present.
We shall reject Towers's argument that San Joaquin County was not the proper venue, because the matter was heard by a disinterested judge from a neutral county pursuant to section 394. We shall conclude that substantial evidence supports the issuance of the order, and that the order did not violate Towers's right of free speech. We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Towers owns property in San Joaquin County (County) that is designated open space/resource conservation (OS/RC) in County's general plan. Beginning in 2003, Towers appeared at numerous public hearings relating to his property. Towers began making claims that the County community development department and its employee, K.S., were conspiring to intentionally misrepresent the general plan designation for his property, and that because of this misrepresentation, he was unable to develop his land. Towers filed four lawsuits against County, two of which named K.S. personally, and two of which included allegations regarding her conduct.
In 2003 or 2004, Towers attended a board of supervisors hearing and lunged at K.S. while making a loud, guttural noise, but was stopped by his wife's intervention from contact with K.S. During that meeting Towers spoke for almost an hour, during which he fixated on K.S. and the actions he felt she had taken to harm him. During his speech his eyes were red and watering and he was clutching the podium. Because of his behavior, a County staff member accompanied K.S. to her car after the meeting to ensure her safety.
Subsequently, Towers appeared at a planning commission meeting, even though there was no agenda item relating to his property or the general plan, set up a video camera, and videotaped K.S. during the meeting. Towers also yelled at the planning commissioners, either at that meeting or a later one.
In January 2010, Towers appeared at the board of supervisors meeting to object to the housing element of the general plan, even though the housing element did not affect his property. During his speech he again verbally attacked K.S. and stated that she had personally and intentionally acted to harm him. K.S. was so fearful for her safety that she had a colleague follow her home from planning commission meetings many times after that.
In November 2015, Towers appeared at a planning commission meeting and gave the commission staff information requesting that the commission place on the agenda a review of the boundary line of the OS/RC designation in the area of his property. When Towers spoke, his hands were shaking, he was red in the face, and he appeared angry and agitated. He accused K.S. of lying. The planning commission refused Towers's request.
On September 29, 2016, the planning commission held a hearing on a comprehensive update to the general plan. The update carried forward the OS/RC designation for Towers's land. Towers spoke two times during the hearing. Both times he spoke he was intense, visibly shaking, red-faced, and appeared to some of those present to be more dangerous and threatening than on previous occasions. Towers accused K.S. and consultant A.S. of being liars and cheaters and making intentional misrepresentations to the commission. Members of the community came up to K.S. and told her they thought Towers was going to attack her during or after the hearing.
On October 11, 2016, Towers filed his fourth lawsuit against County, naming K.S. and A.S. personally. That lawsuit made allegations that the defendants conspired against him, and that the judges conspired with them to destroy his court filings and deprive him of his rights and of a fair hearing. The suit sought $20 to $30 million, and claimed his and his wife's careers have been destroyed.
County Counsel sought the restraining order because the board of supervisors was meeting again on the general plan, K.S. and A.S. would necessarily be attending the meeting, and there was no weapons check prior to the meeting. Towers knew where K.S. lived, and she also felt vulnerable at home.
On October 24, 2016, County Counsel filed a petition for workplace violence restraining order, pursuant to section 527.8. The petition sought protection for K.S. and A.S. County Counsel moved for and received a temporary restraining order (TRO) pursuant to section 527.8.
Prior to the hearing on the workplace violence restraining order, Towers moved on shortened time to change venue on the grounds he could not receive an impartial trial in San Joaquin County and that he is a resident of Stanislaus County. The trial court heard the change of venue motion, and found either San Joaquin or Stanislaus County would be appropriate venues, and referred the matter to the judicial council, who assigned a neutral judge, Douglas Mewhinney, a retired judge from Calaveras County, to hear the matter pursuant to section 394.
Section 394, subdivision (a) provides in pertinent part: "[A]ny action or proceeding brought by a county . . . against a resident of another county . . . shall be, on motion of either party, transferred for trial to a county . . . other than the plaintiff, if the plaintiff is a county . . . and other than that in which the defendant resides . . . . When the action or proceeding is one in which a jury is not of right, or in case a jury is waived, then in lieu of transferring the cause, the court in the original county may request the chairperson of the Judicial Council to assign a disinterested judge from a neutral county to hear that cause and all proceedings in connection therewith."
Judge Mewhinney heard testimony from members of the public Kevin Huber and Jack Kautz, in addition to the testimony of K.S., A.S., and Towers. Huber testified that at the meeting on September 29, 2016, Towers had been aggressive, agitated, and extremely angry. Towers blamed K.S. personally for acting to his detriment. Huber testified that based on his observations of Towers, he was afraid Towers might take violent actions during the meeting. He thought to himself, "This is a person who could come back in with a weapon." Had Towers displayed the same anger toward him, he would feel very threatened for his safety.
Kautz testified that at the same meeting, he observed Towers and felt the situation was "volatile." Kautz said Towers's anger seemed focused on K.S. and A.S. At one point Towers stepped outside and came back in. Kautz thought Towers was going outside to get some sort of weapon, and developed a plan of attack in his head in case that happened. Based on his observation, he believed Towers posed a credible threat of violence against K.S. and A.S.
Judge Mewhinney granted the restraining order from the bench. The order prohibited Towers from harassing or assaulting the employees, committing acts of violence against or threatening violence against the employees, stalking the employees, or contacting them. The order provided that before Towers could enter the employees' workplace, attend a meeting of the planning commission, or attend a county board of supervisors meeting, he was required to contact the San Joaquin County Sheriff's Office to arrange for a deputy to be present. The order also prohibited Towers from owning, possessing, having, buying or trying to buy, receiving or trying to receive, or in any other way getting guns, firearms, or ammunition. The order required Towers to either sell or turn over to law enforcement any guns or firearms in his control. The order was personally served on Towers on November 30, 2016.
Towers moved to set aside the order on the ground it violated his First Amendment right to free speech. Judge Mewhinney denied the motion. Towers appealed from the restraining order.
DISCUSSION
I
Venue
Towers's claim that the San Joaquin County Superior Court had no jurisdiction is actually an argument about venue. He claims that the proceeding should have been brought in Stanislaus County pursuant to section 395 because he lives in Stanislaus County. County Counsel, also citing section 395, claims San Joaquin County was the correct venue because that is where the "injury to person" occurred. (§ 395.) Section 395 provides in relevant part as follows: "Except as otherwise provided by law . . . the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property . . . the superior court in . . . the county where the injury occurs . . . or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action."
Towers's motion to strike the opposition brief for lack of standing because the County, not the County Counsel, is the real party in interest, raised for the first time on appeal, is denied. The County Counsel is designated by law as the proper entity to "defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned or is a party in his or her official capacity." (Gov. Code, § 26529, subd. (a).) This language is broad enough to authorize the County Counsel to file this proceeding as the real party in interest.
Although the statute does not specify that the "injury to person" for purposes of section 395 must be a physical injury, the cases interpreting the statute have so held. (Plum v. Newhart (1931) 118 Cal.App. 73, 75 ["The injury to person or property above referred to is limited to the infliction of physical or bodily injury and does not include mere injury to reputation, business or personal feelings."]; Carruth v. Superior Court (1978) 80 Cal.App.3d 215, 219.) County Counsel argues that for policy reasons, a petition for a workplace violence restraining order should not be required to be brought in the county of defendant's residence.
We need not decide whether an injury that is not a physical injury qualifies as an "injury to person" for purposes of section 395 where the proceeding is one for a workplace violence restraining order, because this case is governed by another venue statute. "The phrase, 'Except as otherwise provided by law' means that section 395 is to be applied only when there is no other applicable venue provision." (Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 564.) There is another venue provision applicable here--section 394, which provides that in an action or proceeding brought by a county against a resident of another county, venue must be transferred on motion of either party to a county that is neither the plaintiff nor the defendant's county of residence. However, if trial by jury is not of right, the court may request that the chairperson of the Judicial Council assign a disinterested judge from a neutral county to hear the cause. That is what happened here.
See footnote 2, ante.
The proceeding was properly held in San Joaquin County by a neutral judge, a retired judge from Calaveras County.
II
Continuance
The petition was filed on October 24, 2016, and a hearing was scheduled for November 18, 2016. On November 1, 2016, Towers filed an ex parte application to shorten time for a motion for change of venue. The court granted the motion to shorten time, and scheduled the hearing on change of venue for November 17, 2016--the day before the hearing on the petition. After the court denied the motion for change of venue and announced that it would assign the case to a neutral judge, Towers made an oral motion to continue the hearing for 60 days to allow him to conduct discovery. Prior to that time, Towers had not made any request for continuance.
The next day, Towers again asked Judge Mewhinney for a continuance. Towers engaged in the following exchange with the court:
"THE COURT: When you were here on November 3, you did not request a continuance. I'm sorry. Were you here on November 3?
"MR. TOWERS: I was here on November 3. The issue before the court was order for shortened time on a motion for change of venue.
"THE COURT: Right. So but you didn't ask for a continuance at that time.
"MR. TOWERS: No. The hearing on the change of venue was held yesterday.
"THE COURT: No, I understand that. But you were here on November 3 and you did not request a continuance to file a response."
After this exchange, Towers told the court that he had expended all of his energy on the change of venue motion, and that it did no good to request a continuance until that motion was decided. The court denied the motion, stating: "The continuance is for a reasonable period of time to prepare a response. The respondent first appeared on November 3. We are now on November 18th. There was no request to continue at that time, and even if the request had been granted, this would be a reasonable period of time. We have -- it is now some 15 days later -- or two weeks, excuse me, later. These matters are to be handled expeditiously. That would clearly be sufficient time."
Section 527.8, subdivision (o) states: "The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition." Towers argues the trial court had no discretion to deny his motion for continuance.
The trial court did not err. The 60-day continuance was not a reasonable amount of time to request, given the urgency of the matter, and Towers requested the continuance not to respond, but to conduct discovery. Thus, the continuance requested by Towers did not fall within the provisions of subdivision (o). Furthermore, we agree with the trial court that Towers was given a reasonable time to respond to the petition. Towers was served with notice of the petition on October 26, and the hearing was held on November 18. This 23-day period was sufficient time to respond. For this reason, we also reject Towers's claim that he was denied procedural due process because he was denied a continuance.
III
Substantial Evidence Supports the Restraining Order
Towers argues the evidence against him was false and there was insufficient evidence to support the petition. We will not entertain Towers's argument that the evidence against him was false. This court reviews the judgment to determine whether the factual findings are supported by substantial evidence. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538.) " '[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' " (Ames v. Ames (1959) 168 Cal.App.2d 39, 40.) "Accordingly, we resolve all factual conflicts and questions of credibility in favor of the prevailing party, and draw all reasonable inferences in support of the trial court's findings." (City of San Jose v. Garbett, at p. 538.)
What County Counsel was required to show was that Towers made a credible threat of violence to K.S. and A.S. (§ 527.8, subd. (j).) "A 'credible threat of violence' under section 527.8 is '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).)" (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 537.)
Here, there was evidence from two members of the public who were unaffiliated with County. They testified that they observed Towers at the September 29th planning commission meeting, and that he was nervous, aggressive, agitated, and extremely angry. He verbally, personally attacked K.S. and A.S. They both testified that they were afraid Towers might become violent during the meeting. They both stated they believed Towers posed a credible threat toward K.S. and A.S.
K.S. testified regarding the time that Towers had lunged at her just before a planning commission meeting, then used most of his time speaking at the meeting to attack her personally. Because of Towers's behavior at the meeting, one of the board members made sure K.S. did not go to her car alone. K.S. believed Towers followed her home after one meeting. K.S. has been escorted home from meetings because of her fear of Towers. She testified that at the September 29th planning commission meeting, Towers seemed to be coming undone. When he spoke he attacked her and A.S. He was very upset, and she was nervous and frightened. In her 30-plus year career, she had never felt that her safety or her staff's safety was compromised, but she did with Towers.
A.S. testified she saw Towers for the first time at the September 29th planning commission meeting. He was red-faced and shaking. She had seen people angry at meetings in her 36-year career, but she had never seen the kind of behavior exhibited by Towers. Towers accused her of lying and cheating. She was very much afraid that Towers would take violent or physical action against her at the meeting. She felt that there was true hate in his voice. A.S. was so afraid of Towers that she did not want to appear at a board of supervisors meeting or even testify at the hearing on the restraining order.
The above evidence is sufficient to show a course of conduct that would place a reasonable person in fear for her safety with no legitimate purpose. Members of the public who had no stake in the matter testified they believed Towers posed a credible threat. Both K.S. and A.S. had dealt with the public for many years and were accustomed to contentious planning meetings, yet both felt threatened by Towers's behavior and personal attacks on them. This evidence was sufficient to support the finding of a credible threat of violence.
Towers claims the trial court improperly excluded evidence. The evidence in question was K.S.'s declaration in another matter, which was made four years before the restraining order was sought. Towers has made no attempt to show the purported error was prejudicial, thus we have no cause to reverse the judgment (order) on this ground. (People v. Watson (1956) 46 Cal.2d 818, 837.) In a tit-for-tat claim, Towers argues the trial court should not have admitted "prior acts" evidence that he lunged at K.S. at a meeting in 2003 or 2004--evidence that was part of the petition. Towers misunderstands the nature of the trial court's ruling. The evidence submitted in the petition was relevant to the reasons K.S. believed Towers posed a threat. The trial court declined to admit Towers's evidence regarding a declaration in another matter because it was unrelated to the evidence set forth in the petition, not because it was a "prior act," as he claims.
IV
The Order Did Not Violate the First Amendment
Towers claims the order violated his right to free speech because "[c]riticism of public officials . . . is the core of protected speech." The order did not violate the First Amendment.
A statute that penalizes threats does not violate the First Amendment as long as the threats fall outside the scope of the First Amendment. (City of San Jose v. Garbett, supra, 190 Cal.App.4th 526, 536-537, quoting Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134.) An expression within the scope of the First Amendment is one that seeks to persuade. (Id. at p. 537.) It is one that is " ' " ' "about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . ." ' " ' " (Ibid.) " 'A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity.' " (Ibid.) As speech moves from persuasion to threats, the state has more latitude to regulate it. (Ibid.)
Thus, if there is evidence that the elements of a petition under section 527.8 have been satisfied, the speech is not constitutionally protected. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 537.) We have concluded there was sufficient evidence to support the trial court's findings, thus Towers's First Amendment claim fails.
Towers also claims the order was an unconstitutional prior restraint and was unconstitutionally vague. " '[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.' " (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 537.) The specific pattern of speech prohibited here was harassment and threats of violence. Such speech is not constitutionally protected, thus there can be no prohibited prior restraint. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.)
Towers seems to suggest that the prior restraint lies in the requirement that he contact the Sheriff's office to arrange the presence of a deputy before he attends planning or board of supervisors' meetings. The order did not prevent Towers from attending and speaking at County supervisor or planning meetings. Rather, the order provided that such attendance required Towers to contact the sheriff's office to arrange the presence of a deputy, and if no deputy could be present, to contact County Counsel's office to arrange for the presence of a deputy. This provision does not enjoin speech, was sufficiently narrowly tailored to accomplish the objective of protecting the employees, and was sufficiently precise to provide "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." (United States v. Harriss (1954) 347 U.S. 612, 617 .) Accordingly, the order was not vague, nor was it an impermissible prior restraint.
Towers claims the "San Joaquin County Counsel's Office has engaged in a classic SLAPP." He did not bring a special motion to strike pursuant to section 425.16.
V
TRO
Towers claims the TRO violated his due process. A TRO is a separately appealable order. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357.) The TRO was personally served on October 26, 2016. Towers had 60 days to appeal. (California Rules of Court, rule 8.104, subd. (a).) He did not appeal the TRO, and did not file his notice of appeal from the injunction until February 3, 2017. This court has no discretion to review an appealable judgment or order from which a timely appeal was not taken. (§ 906.)
DISPOSITION
The judgment (order) is affirmed. Costs are awarded to respondent. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.