Opinion
E058111
10-14-2014
CITY OF MONTCLAIR, Plaintiff and Respondent, v. RICHARD ESPINOZA BELTRAN, Defendant and Appellant.
Anthony J. Kimbirk for Defendant and Appellant. Robbins & Holdaway and Diane E. Robbins for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. CIVRS1208614) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. Anthony J. Kimbirk for Defendant and Appellant. Robbins & Holdaway and Diane E. Robbins for Plaintiff and Respondent.
I
INTRODUCTION
Richard Beltran appeals from an order granting a workplace violence restraining order after hearing, granted pursuant to Code of Civil Procedure section 527.8 (section 527.8). In November 2012, the City of Montclair (Montclair) filed a petition seeking the restraining order, based on Beltran's history of harassment and the future threat to city employees. After a hearing on the merits in December 2012, the trial court granted the restraining order against Beltran, effective for two years until November 7, 2014.
On appeal, Beltran challenges the sufficiency of the evidence to show there was a likelihood of future harm. Montclair counters there was a sufficient showing of future harm and the restraining order was constitutional. We hold the trial court did not abuse its discretion in granting the restraining order because Beltran's "history of threatening conduct toward City employees" showed that "irreparable harm was reasonably likely to occur if the injunction were not issued." (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 542-543.) We affirm the order of the trial court.
II
FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 2012, Montclair filed a "Petition for Injunction Prohibiting Harassment," seeking a workplace violence restraining order. The trial court granted a temporary restraining order on November 8, 2012. The court conducted a hearing on the permanent restraining order in December 2012. Our factual summary is based on supporting declarations submitted by seven city employees, including Edward C. Starr, the Montclair City Manager. All the employees testified at the hearing.
The actual petition is not part of the record on appeal.
A. Beltran's Preretirement Conduct
Beltran retired from his position as an assistant finance director in September 2011. According to Starr, Beltran's work performance had begun to deteriorate in June 2005, affecting the city's economic stability. Beltran's deficient performance caused the city's reserve fund to drop from $10 million to $5 million. In 2008, he failed to transfer $3.2 million of redevelopment money into the general fund, which was not discovered until 2011. Beltran did not meet deadlines for a tax audit, jeopardizing future federal grants. During the same period of time, Beltran "began displaying aberrant behavior." He was moody, "overly animated, loud, and demonstrative," and "extraordinarily depressed."
Between 2009 and March 2011, Beltran became infatuated with Nadia Paz, a city employee in the finance division. He engaged in a pattern of harassment and erratic behavior directed at Paz, including numerous telephone calls, text messages, and unwanted gifts. He spent hours at work trying to talk to Paz, becoming dejected and depressed when she did not reciprocate his interest.
Beltran also behaved jealously and aggressively toward male employees who had previously considered him "pleasant." His behavior toward other employees included erratic mood swings, violent outbursts, slamming his office door, throwing things, crying, cursing, and jabbing an employee in the back. On Valentine's Day 2011, Beltran sent a "bizarre" email message to city employees. Beltran often referred to city employees as metaphorically sticking knives in his back. Beltran exhibited other peculiar behavior when he called himself, "the devil," after a character in a horror film. He pestered an employee, Claudia Ramirez, to watch the movie in spite of her numerous refusals. He announced his plan to cause turmoil and began wearing a red shirt to signal his "devil" persona. Employees testified to experiencing emotional and physical harm from the stress caused by Beltran's workplace behavior.
After Brian Stowe, a Montclair employee, was beaten nearly to death at Dodger Stadium, Beltran laughed and blamed Stowe for being a Giants fan. Starr interpreted Beltran's comments to mean that Beltran could act violently against people who did not agree with him.
In June or August 2011, Beltran brought Paz into Starr's office and emotionally demanded Starr to direct Paz to have a relationship with him. During his tirade, Beltran violently cursed at Paz and denied stalking her but claimed he could not concentrate on anything but her. After the meeting, he complained about her treatment of him and asserted he was going to "do something" about it. Paz filed a formal complaint against Beltran based on his verbal threat.
Using an outside investigator, Starr investigated Paz's formal complaint, which resulted in Beltran being relieved of his supervisory duties and relocated to another department. In light of additional pending disciplinary action, Beltran retired in September 2011.
B. Beltran's Postretirement Conduct
After his retirement, Beltran began coming to city hall to pay his utility bills in person, making Paz and other employees uncomfortable. Paz changed her telephone number to avoid contact with Beltran. In January 2012, Beltran tried unsuccessfully to talk to Paz when she was attending a health conference.
In February 2012, Beltran began attending Montclair city council meetings. In June and July 2012, Beltran announced his candidacy for city council using $70,000 of his own retirement money. During his campaign, he was hostile to city employees at campaign functions, glaring at them during candidate forums and becoming upset with their questions. When he encountered city employees engaged in campaign activities in public, his demeanor toward them was threatening and he drove violently, punching his steering wheel and "peel[ing] out" in their vicinity. The city employees feared he would blame them for his election loss and seek revenge. Paz and others believed Beltran had a gun. They regarded him as a "ticking bomb" or "loose cannon," capable of unpredictable violence, and feared he would lash out at them.
The court issued the temporary restraining order on November 8, 2012. After Beltran lost the election, he reacted furiously to being served with the temporary order on November 14, 2012. Montclair officials were concerned enough to have a police officer stationed at city hall for the employees' protection from Beltran. As another precaution, Starr instructed city employees to park in a secure parking lot and walk to their cars in groups.
C. The Hearing on the Workplace Violence Restraining Order
After hearing testimony and argument, the trial court made the following ruling: "[I]t's quite clear to the Court that the employees that testified here feel like they've been terrorized by [Beltran]. . . . [¶] If there was ever a case where 527.8 should apply, I think it's this case, and for that reason, I think that the City has met [its] burden. [¶] The restraining order will become the—the temporary will become the permanent restraining order for a period of two years from the date of the filing." The order applies to the seven city employees.
III
NO ABUSE OF DISCRETION IN GRANTING THE WORKPLACE VIOLENCE
RESTRAINING ORDER
Substantial evidence established that Beltran's conduct constituted a credible threat of past and future violence to Montclair employees that would cause a reasonable person to fear for his or her safety. Based on clear and convincing evidence, we find the trial court's ruling was not an abuse of discretion.
Section 527.8 provides:
"(a) 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, and, if appropriate, other employees at other workplaces of the employer. [¶] . . . [¶]
"(e) Upon filing a petition for an injunction under this section, the petitioner may obtain a temporary restraining order in accordance with subdivision (a) of Section 527, if the petitioner also files a declaration that, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent, and that great or irreparable harm would result to an employee. [¶] . . . [¶]
"(j) At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. Moreover, if the respondent is a current employee of the entity requesting the injunction, the judge shall receive evidence concerning the employer's decision to retain, terminate, or otherwise discipline the respondent. If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an injunction shall issue prohibiting further unlawful violence or threats of violence."
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).) "'[T]o obtain a permanent injunction under section 527.8, subdivision (f), a plaintiff must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will occur in the future.' (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335.) On appeal, however, we review an injunction issued under section 527.8 to determine whether the necessary factual findings are supported by substantial evidence. [Citation.] 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. [Citation.]" (City of San Jose v. Garbett, supra, (2010) 190 Cal.App.4th at pp. 537-538.) An abuse of discretion will only be found when the trial court's holding exceeds the bounds of reason or contravenes the contradicted evidence. (Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 240.)
A. Credible Threat
Beltran contends that there was insufficient evidence that he made a credible threat to any city employees. A "[c]redible threat" is defined by the statute as "a knowing and wilful statement or course of conduct that would place a reasonable person in fear for his or her safety . . . and that serves no legitimate purpose." (§ 527.8, subd. (b)(2).) In deciding whether the test for a credible threat has been met and the likelihood of irreparable harm, the factual context in which the statement or conduct occurs is critically important. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at pp. 541-543.)
Here Beltran had a history of aggressive outbursts, including slamming doors, throwing things at the wall, cursing, yelling, and poking a fellow employee. He adopted a "devil" persona to intimidate his fellow employees. He was believed to own a gun and he had threatened to shoot at drivers. He expressed the view that the nearly-fatal beating of Brian Stowe was justified. The understandable effect on the city employees was for them to feel in fear of their safety. As the trial court recognized, the city employees were terrorized by two years or more of Beltran's disturbing behavior.
In the Garbett case, which also involved workplace misbehavior, the appellate court held that, under the plain language of section 527.8, the reasoning of analogous cases, and cases involving intent-based statutes, the trial court properly found that the appellant had uttered a credible threat within the meaning of section 527.8. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 541.) In this case, because Beltran's past conduct caused the city employees to have a reasonable fear that Beltran might harm them, the permanent restraining order was properly issued.
B. Future Threat
Beltran's main argument is that—because he retired in September 2011 and was having only minimal or benign contacts with city employees until November 2012—there was insufficient evidence of the likelihood of future harm. Beltran relies primarily on the Scripps case involving a single violent encounter between a hospital administrator and a patient's son. The son "agreed to stay away from the hospital, and his mother transferred her health insurance and thus was unlikely to return to the facility where her son's violent act occurred. Based on these facts, the appellate court found insufficient evidence that Marin would repeat any violent conduct against Scripps staff." (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 542.)
This case, however, like Garbett, involves a history of threatening conduct toward city employees, aggravated by ongoing misconduct after Beltran's retirement in September 2011. Beltran tried to initiate additional contact with Paz in January 2012. He was deliberately provocative in coming to city hall to pay his utility bills in person. During the course of his campaign, he was openly antagonistic toward city employees and frightened them by driving recklessly in their vicinity and endangering them and their family members. When he was served with the temporary restraining order on November 8, 2012, he reacted so violently that a police officer was stationed at city hall for the safety of the employees. Based on these circumstances, the city employees reasonably feared future harm from Beltran. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) Clear and convincing evidence of future harm justified granting the workplace violence restraining order. (City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 543.)
IV
CONSTITUTIONALITY
Beltran does not expressly assert a constitutional argument. Instead, he asserts the restraining order was improperly issued as punishment for "a past wrong instead of a future harm." Nevertheless, Montclair argues the restraining order is constitutional. Although we will not concentrate on an argument that was not raised by appellant, we agree, as discussed in Garbett, that there is no First Amendment protection for Beltran's speech and conduct:
"Section 527.8, the Workplace Violence Safety Act, enables an employer to seek an injunction to prevent violence or threatened violence against its employees. [¶] . . . [¶] The First Amendment does not help appellant here. The right to free speech is not absolute or unlimited. [Citations.] As our Supreme Court has explained, '"[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, '"communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . ."' [Citations.]" . . . 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. [Citation.]' [Citations.] 'As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. [Citation.]' [Citation.] '[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.] [¶] Thus, it is clear that if the elements of section 527.8 are met by the expression of a credible threat of violence toward an employee, then that speech is not constitutionally protected and an injunction is appropriate. The relevant question for this court is whether the City proved the elements of the statute." (City of San Jose v. Garbett, supra, 190 Cal.App.4th at pp. 536-537.)
We conclude that Montclair has demonstrated the statutory elements of a credible threat and future harm. The subject order is constitutional.
V
DISPOSITION
We affirm the trial court's order granting the workplace violence restraining order. As the prevailing party, Montclair shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur: McKINSTER
Acting P. J.
RICHLI
J.