Brief

Cal. Super. - 6th Dist.June 10, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4852-6075-6733v1 MCHENG\27470008 Michael J. Cheng, CA State Bar No. 244414 Berliner Cohen, llp Ten Almaden Boulevard Eleventh Floor San Jose, California 95113-2233 Telephone: (408) 286-5800 Facsimile: (408) 998-5388 mike. cheng@berliner. com Attorneys for Petitioner Managed Facilities Solutions, llc. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA CIVIL-UNLIMITED JURISDICTION MANAGED FACILITIES SOLUTIONS, LLC, a California limited liability company, Petitioner v. KORY KANEDA, an individual, Respondent. CASE NO. 21CH010101 PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA Hearing Date: November 9, 2021 Time: 2:00 p.m. Dept: 4 Hon. Commissioner Erik S. Johnson I. INTRODUCTION Petitioner MANAGED FACILITIES SOLUTIONS, LLC (“Petitioner MFS”) hereby submits its brief following the hearing for injunction pursuant to Code of Civil Procedure section 527.8, which is being submitted per this Court’s request with respect to the issue of whether Section 527.8 requires Petitioner MFS to demonstrate that the protected employees are in fact fearful in response to a credible threat of violence allegedly made by Respondent Kory Kaneda (“Respondent Kaneda”). II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioner MFS alleges that on June 4, 2021, Respondent Kaneda made oral statements that he was “going shoot up MFS like the VTA guy” and that he had “a list of 25 employees” of whom he intended to shoot. Petitioner MFS also alleges that on June 7, 2021, Respondent -1- PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/5/2021 12:40 PM Reviewed By: M. Sorum Case #21CH010101 Envelope: 7401841 21CH010101 Santa Clara - Civil M. Sorum 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4852-6075-6733v1 MCHENG\27470008 Kaneda sent text messages to employee Moises Aguirre which read: “Fuck MFS”; and “Gonna shoot that place up”. On June 7, 2021 an Emergency Protective Order was issued based on the aforesaid statements allegedly made by Respondent Kaneda, who was terminated on June 8, 2021. On June 9, 2021, Petitioner MFS submitted its Petition for Workplace Violence Restraining Order (the “Petition”), which was accepted and filed by the Court on June 10, 2021. The Petition identifies four employees to be protected: Charlie Sanchez; Manuel Robles, Moises Aguirre; and Michael Reeve. On June 11, 2021, this Court provisionally granted Petitioner MFS’s petition by issuing a temporary restraining order and setting the hearing on this matter for August 10, 2021. At the August 10, 2021 hearing, Respondent Kaneda (appearing with counsel) requested a continuance, which this Court granted pursuant to Section 527.8(g) and ordered a new hearing date of September 29, 2021. On September 29, 2021 the Court received the parties’ oral and documentary evidence. Petitioner MFS proffered live testimony from its Chief Executive Officer Haynes Dallas and employees Charlie Sanchez and Moises Aguirre. The Court also accepted into evidence MFS’s Exhibits 1-9. Respondent Kaneda himself testified and submitted Exhibits A-C, which were also accepted into evidence by this Court. Mr. Aguirre testified that he himself was not in fear of Respondent Kaneda’s oral and texted threats that he was “Gonna shoot that place up” because of his friendship with Respondent Kaneda. Mr. Aguirre, however, was fearful that Respondent Kaneda would shoot up other employees, which is why after receiving the text messages immediately reported such to Petitioner MFS. After receiving the closing statements of counsel, the Court requested that the parties submit additional briefing by October 15, 2021 on the issue of whether Section 527.8 requires that the employees identified in the Petition be in fear of their own safety as a result of credible threat of violence. The Court also set another hearing for November 9, 2021 at 2:00 p.m. in Department 4. -2- PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4852-6075-6733v1 MCHENG\27470008 HI. LEGAL ARGUMENT A. Section 527.8 Does Not Require a Showing That the Protected Employees Themselves Are Fearful as a Result of a Credible Threat of Violence. Subsections (a) and (j) of Code of Civil Procedure 527.8 set forth the requirements that are to be met in order for an order after hearing to be issued: “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.” (Code Civ. Proc. §527.8(a) (emphasis added).) “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 order, 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 order shall issue prohibiting further unlawful violence or threats of violence.” (Code Civ. Proc. §527.8(j) (emphasis added).) Nothing in subsections (a) or (j), or anywhere else in Section 527.8, require that the protected employee(s) have an actual fear for their safety. This is buttressed by the subsection (b)(2) definition of “Credible threat of violence” that indicates that the standard is that of “a reasonable person” and not the subjective fear of the protected employees. Thus, whether or not Mr. Aguirre or Mr. Sanchez have actual fear for their own safety is somewhat immaterial (though both were certainly concerned about the safety of other employees). What matters is whether the Court, having received the evidence, finds by clear and convincing evidence that Respondent Kaneda made a credible threat of violence that would place a reasonable person in fear for his or her safety. -3- PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4852-6075-6733V1 MCHENG\27470008 B. Assuming Arguendo That the Court Nonetheless Requires a Showing of Actual Fear, Petitioner MFS Can Certainly Demonstrate Such to the Court’s Satisfaction. In addition to Mr. Sanchez and Mr. Aguirre, the Petition also seeks protection of Manuel Robles and Michael Reeves, neither of whom appeared at the September 29, 2021 hearing. The first reason Mr. Robles and Mr. Reeve did not appear is that neither directly heard Respondent Kaneda make the oral statements about “shooting up [MFS] like the VTA guy” or his list of 25 targeted employees. By contrast, Mr. Sanchez and Mr. Aguirre do have firsthand knowledge1 of whether Respondent Kaneda made those statements, which is why the two were proffered as witnesses. Second, Mr. Robles, and especially Mr. Reeve (as the account manager for Apple - the customer with which Respondent Kaneda has had multiple transgressions) both did have actual fear for their safety and did not wish to interact at all with Respondent Kaneda2. As already discussed above, although Section 527.8 does not require Petitioner MFS to demonstrate actual fear on the part of the protected employees, Petitioner MFS is herewith providing the attached Declarations3 of Mr. Robles, Mr. Reeve, as well as those of additional employees who are fearful of Respondent Kaneda. Petitioner MFS’s own concern (i.e., as a company) about the safety of its employees is substantiated by the additional expenses it has incurred, which included heightened security. If Respondent Kaneda somehow now contends that Mr. Robles, Mr. Reeve, or other employees should not have a reasonable fear because they were not specifically identified, USS- Posco Industries v. Edwards (2003) 111 Cal.App.4th 436 may be dispositive. In Edwards, the former employee was overheard allegedly making certain statements not specifically directed toward any particular individual. In affirming the trial court’s decision to grant the three-year 1 Petitioner MFS is aware of the admissibility of hearsay evidence (see Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557) but decided to proffer testimony from Mr. Sanchez and Mr. Aguirre in order to meet the clear and convincing evidentiary standard set forth in the aforementioned subsection (j). To further substantiate this, Petitioner MFS is prepared to waive the attorney-client privilege by providing the Court with an email from MFS to counsel on June 11, 2021 indicating Mr. Reeve’s reluctance to appear at the hearing. Petitioner MFS is submitting its brief well before the October 15, 2021 deadline to mollify any concern that Respondent Kaneda is somehow prejudiced by the submission of these Declarations by providing ample time to Respondent Kaneda to respond. -4- PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4852-6075-6733v1 MCHENG\27470008 PETITIONER MANAGED FACILITIES SOLUTIONS, LLC’S BRIEF IN SUPPORT OF WORKPLACE VIOLENCE RESTRAINING ORDER AGAINST RESPONDENT KORY KANEDA injunction, the court of appeal recognized that “section 527.8 was enacted to allow a corporate employer to bring such an action on behalf of an employee.. .by providing employers with injunctive relief so as to prevent such acts of workplace violence.” (/d at 443 (emphasis added).) The court went on to state that “the Legislature did not specify that the threat of violence must be directed at a particular employee. Given the legislative intent to prevent work place violence, it would indeed be absurd to read the statute in a way that would provide no protection against a threat to indiscriminately shoot employees on the premises. An employer may seek relief under section 527.8 on behalf of any employee who is credibly threatened with unlawful violence, whether or not that employee is identified by the defendant.” Like Mr. Robles and Mr. Reeve, Petitioner MFS is justifiably concerned about the statements made by Respondent Kaneda that he would “shoot up” MFS. Petitioner MFS has not only accordingly submitted this Petition but also spent no less than $16,915 for increased security. IV. CONCLUSION Section 527.8 does not require that the protected employees have a subjective fear in response to a credible threat of violence. Even if there was such a requirement, the additional Declarations provided herewith demonstrate that two of the protected employees are fearful as a result of the statements made by Respondent Kaneda. Accordingly and for all the aforementioned reasons, Petitioner MFS respectfully requests that the Court grant the Petition and that such remain in place for the three year maximum set forth in subsection (k)(l) of Section 527.8. Dated: October 4,2021 BERLINER COHEN, LLP J. ChengMichael / Attorneys for Petitioner Managed Facilities Solutions, llc -5-