Rancho Guejito v. Perdue
Filed 7/11/13 Rancho Guejito v. Perdue CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
RANCHO GUEJITO CORPORATION,
Respondent,
v.
MITCHELL A. PERDUE,
Appellant.
D062161
(Super. Ct.
No.
37-2012-00051611-CU-PT-NC)
APPEAL from
orders of the Superior Court
of
County, Robert P. Dahlquist, Judge. Affirmed.
The
McDonald Firm, Stephen P. McDonald and Tina J. Arciaga for Appellant.
Sheppard
Mullin Richter & Hampton and Guylyn R. Cummins for Respondent.
I.
INTRODUCTION
Rancho Guejito Corporation (Rancho
Guejito) filed a petition seeking a workplace violence
Perdue after a series of incidents involving Perdue after Rancho Guejito
refused to pay Perdue approximately $326,000 for services that he claimed he
had provided to Rancho Guejito. Prior to
the hearing on Rancho Guejito's petition for a permanent workplace violence
restraining order, Perdue filed a special motion to strike under the anti-SLAPP
(strategic lawsuit against public participation) law. The trial court denied the
a three-year workplace violence restraining order against Perdue.
On appeal,
Perdue contends that the trial court erred in denying his anti-SLAPP motion,
and further contends that the trial court erred in issuing the workplace
violence restraining order. We conclude
that Perdue has not established reversible error, and, therefore, affirm the
orders of the trial court.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
Rancho
Guejito is a 23,000-acre ranch in San Diego
County. In 2005 and 2006, Perdue provided rangeland
management services to Rancho Guejito pursuant to written contracts. The contracts provided that Perdue would be
paid between $4,000 and $12,000 for his services. Although the record is not clear, it appears
that Perdue may have continued to provide services to Rancho Guejito without a
written contract until he was terminated as a consultant sometime in mid-2011.
In October
2011, Perdue asked for a meeting with Rancho Guejito's chief operating officer
and general counsel, Hank Rupp. Rupp and
his assistant, Sheryl Barnett, agreed to meet with Perdue at a restaurant. At that meeting, Perdue presented Rupp and
Barnett with an "invoice" for $326,000 for services and work that he
claimed to have provided to Rancho Guejito.
When Rupp would not agree to pay Perdue what Perdue was demanding,
Perdue became angry. At some point
Perdue said, "It would go a lot better for Rancho Guejito if I was your
friend rather than your enemy."
When Rupp asked Perdue what he meant by that statement, Perdue
responded, "You'll see."
According to Barnett, during the exchange, Perdue "got very red in
the face and his jaw started moving back and forth and his tone of [] voice
accelerated." Rupp could tell that
Perdue was "really angry" and described Perdue's demeanor as
"seething." Rupp interpreted
Perdue's "You'll see" as a threat that went beyond extortion.
After that
meeting, Rancho Guejito hired an outside attorney, Gregory C. Kane, to deal
with Perdue. On November 1, 2011, Rancho
Guejito informed Perdue that he was not to contact Rancho Guejito employees,
but instead, should have contact only with Kane.
Despite
having been told to communicate only with Kane, Perdue continued to contact
Rancho Guejito employees by telephone, e-mail, and in person concerning his
demands. For example, on November 17,
2011, Perdue sent an e-mail to Rupp asking when Rancho Guejito would respond to
his demands for payment. Barnett
responded to this e-mail by telling Perdue that he was to direct his
communications to Kane. Kane sent an
e-mail to Perdue the following day reminding Perdue to communicate only with
Kane and directing him not to try to communicate with Rancho Guejito
employees. Kane informed Perdue that
Perdue's e-mail address was being put on a " 'blocked sender list.' "
On December
2, 2011, Perdue went to the Rancho Guejito property. The property is fenced and secured. Perdue parked his car behind some vegetation,
out of sight of the offices, and approached the gate on foot. Over an intercom Perdue told Jacqueline Soto,
a Rancho Guejito employee, that he had a delivery. Because Soto did not know Perdue, he was able
to get her to open the gate. Perdue
walked onto the property, and Soto met him outside the office building. Perdue asked to see Barnett. Soto started to walk toward the office
building, and Perdue followed her.
Barnett looked out the window and recognized Perdue. Barnett opened the office door just slightly
and told Soto that the man was Perdue.
She also informed Perdue that she would not meet with him.
Soto went
into the office immediately, and Barnett closed and locked the door. Perdue continued to talk to Barnett through
the door. She told him, "I'm not
talking to you or accepting anything from you." Perdue asked for a pen, and Barnett repeated
what she had just said. Barnett knew
that Perdue had been told not to contact Rancho Guejito employees and was
"unnerved" by his appearance at the office. She was determined not to open the door. Perdue stepped up onto the stoop and "shoved
something into the door." Barnett
worried that he was going to try to come into the office. Soto interpreted Perdue's actions as
"tr[ying] to force his way inside the office." The envelope that Perdue left contained his
"final invoices."
Kane
e-mailed Perdue that day to again direct him not to make any efforts to contact
Rancho Guejito employees.
On December
13, 2011, Kane sent Perdue an e-mail asking him questions about whether Perdue
had been hunting on the Rancho Guejito property over the past four years. Perdue responded to Kane two days later.
On January
10, 2012, Perdue wrote a letter to Theodate Coates, a director of Rancho
Guejito who works in New York. In the
letter, Perdue acknowledged that he had hired a helicopter to fly him over the
ranch property. Perdue threatened to
report Rancho Guejito to government authorities concerning some dead cattle
that he had seen on the ranch, as well as with respect to some grading that he
had observed on the property. When Kane
found out about Perdue's letter, he e-mailed Perdue yet again to inform him
that his actions were unacceptable and that he was going to be placed on the
" 'blocked sender' " list for Rancho Guejito personnel in New York,
as well. Kane also advised Perdue that
if he continued to engage in similar behavior, Rancho Guejito would seek a
restraining order against him. In
response, Perdue stated, "It seems to me that the management there has
enough problems already without pissing me off."
On January
20, 2012, Perdue sent an e-mail to Kane, Rupp and other Rancho Guejito
personnel in which he again demanded payment and threatened to go to the media
with "all of the activities and actions that I have observed on the
ranch." Perdue sent this e-mail
from a different e-mail address, apparently in an effort to avoid having his
e-mail blocked.
On
February 14, 2012, Rancho Guejito employees noticed a white truck driving up
the dirt road that led to the entrance gate to Rancho Guejito. The employees recognized Perdue as the
driver. He was accompanied by two men.
to see what Perdue was doing. Perdue
stopped the truck and one of the passengers began taking photographs of the
property. The employees believed that
Perdue was inspecting the mounted security cameras at the entrance. Before the employees could make contact with
Perdue, he and the man who had been taking photographs got back into the truck
and left.
Later in February, Perdue returned
to the Rancho Guejito property on prearranged visits, ostensibly to retrieve
certain personal items that he had left there.
personnel placed the items outside of the Rancho Guejito gate. Upon arriving, Perdue asked the security
personnel, " 'Who are you? What's
your name?' " The security
personnel described Perdue's demeanor as "confrontational and
combative."
title="">[4] Perdue took photographs of the Rancho Guejito
security personnel. After hooking up a
trailer to his truck, he asked them, " 'Do you have permits?' " One employee interpreted Perdue's question as
asking whether they had permits for their weapons. "[I]n an adversarial tone" Perdue
stated, " 'You know this is a county road all the way up to the double
gates[.]" Perdue asked other
questions, but the security personnel continued to tell Perdue that he was to
direct his questions to Rancho Guejito's attorney, as he had been told numerous
times. Perdue became "agitated and
confrontational when he was told to speak to the lawyer." Perdue left some of the cages on the side of
the road and said that he would return on another day to retrieve them.
Perdue returned on February 20,
2012, accompanied by another man, to retrieve the remainder of his personal
property.
of the property when Perdue arrived.
guys haven't been waiting too long.' "
The security personnel did not respond.
Perdue then said, " '[T]ell Octavio, Jack and Lige we are not
finished with them.' " Perdue and
his companion used cameras to videotape and take photographs at the main gate,
including photographs of the security cameras and the security personnel. At one point, Perdue walked up to the gates
and "removed a chain that was securing the gates." One of the Rancho Guejito security employees
replaced the chain. Perdue then said,
" 'Don't touch me.' " The
security employee, who had not touched Perdue, responded by saying,
" 'Don't touch me either.' "
Perdue came within six inches of the employee's face. "[H]e was grinding his teeth and his
chin moved forward, and pointing at [the security guard's] chest." Perdue's demeanor was " 'clearly
combative.' " Perdue proceeded to
argue with the employee as to whether the road was a county road or not. The employee had earlier called Rupp to ask
whether he should allow Perdue to drive past the double gates. After Perdue began walking back to his truck,
Rupp responded by saying that the employee should allow Perdue to go down the
road "to prevent further problems."
to let Perdue proceed past the gates, but Purdue and his companion drove away.
B.
Rancho
Guejito filed a petition for a workplace restraining order (the Petition)
against Perdue on March 5, 2012. That
day, the trial court issued a temporary restraining order and set a hearing on
the Petition for March 23.
Perdue
filed a response and opposition to the Petition on March 22, one day prior to
the hearing.
On March
23, the trial court continued the hearing to April 11, and reissued the
temporary restraining order against Perdue.
On April 9,
two days prior to the date of the hearing on the Petition, Perdue filed a
special motion to strike under Code of Civil Procedure
motion at that time, and he did not serve the anti-SLAPP motion on Rancho
Guejito prior to the April 11 hearing.
The parties
appeared for the hearing on the Petition on April 11. The trial court determined that Perdue's
anti-SLAPP motion would have to be decided prior to the court holding a hearing
on the Petition. Rancho Guejito's
attorneys had not seen the motion until the date scheduled for the hearing on
the Petition. Counsel for Rancho Guejito
reviewed the anti-SLAPP motion during a recess, and, because Perdue objected to
the court maintaining the temporary restraining order in effect if there was
going to be a further delay in the hearing on the Petition, elected not to file
a formal response to Perdue's anti-SLAPP motion, and instead, orally opposed
the motion.
The trial
court denied Perdue's anti-SLAPP motion.
After denying the motion, the court heard witness testimony concerning
the Petition and took the matter under submission. On April 16, 2012, the trial court issued a
statement of decision in which it made findings of fact with respect to the
Petition and issued a three-year workplace violence
Perdue
filed a timely appeal from the court's April 16 order.
III.
DISCUSSION
A. The
anti-SLAPP motion
1. Legal
standards
a. Legal
standards regarding anti-SLAPP motions
"Whether section 425.16
applies, and whether the plaintiff has shown a probability of prevailing, are
both questions we review independently on appeal." (Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 906; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212 (HMS Capital) [orders granting
anti-SLAPP motions are reviewed de novo].)
Section 425.16, subdivision (b)(1)
provides: "A cause of action
against a person arising from any act of that person in furtherance of the
person's right of petition or free speech under the United States or California
Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim."
Resolution of a special motion to
strike "requires the court to engage in a two-step process. First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action is one arising
from protected activity. The moving
defendant's burden is to demonstrate that the act or acts of which the
plaintiff complains were taken 'in furtherance of the [defendant]'s right of
petition or free speech under the United States or California Constitution in
connection with a public issue,' as defined in the statute. [Citation.]
If the court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the
claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
67 (Equilon).)
For purposes of an anti-SLAPP
motion, "[t]he court considers the pleadings and evidence submitted by
both sides, but does not weigh credibility or compare the weight of the
evidence. Rather, the court's
responsibility is to accept as true the evidence favorable to the
plaintiff . . . ."
(HMS Capital,
his or her claim has 'minimal merit' [citation] to avoid being stricken as a
SLAPP. [Citation.]" (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
b. Legal
standards related to a workplace violence restraining
Section 527.8 authorizes an
employer to seek restraining orders on behalf of its employees to prevent
threats or acts of violence in the workplace by another employee or a third
person. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334 (
"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."
Pursuant to the statute, "
'[u]nlawful violence' is any assault or battery, or stalking as prohibited in
Section 646.9 of the Penal Code, but shall not include lawful acts of
self-defense or defense of others."
(§ 527.8, subd. (b)(7).) The
statute defines " '[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." (Id.,
subd. (b)(2).)
A " '[c]ourse of conduct'
" is defined as "a pattern of conduct composed of a series of acts
over a period of time, however short, evidencing a continuity of purpose,
including following or stalking an employee to or from the place of work;
entering the workplace; following an employee during hours of employment;
making telephone calls to an employee; or sending correspondence to an employee
by any means, including, but not limited to, the use of the public or private
mails, interoffice mail, facsimile, or computer email." (§ 527.8, subd. (b)(1).)
In order to "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, supra, 72 Cal.App.4th at p. 335.)
2.
a. The activity alleged
in the Petition does not fall within the protection of the statute
The threshold issue in ruling on an anti-SLAPP motion
is whether "the challenged cause of action is one arising from protected
activity." (Equilon Enterprises, supra,
29 Cal.4th at p. 67.) A protected
activity is "any act" that is completed "in furtherance of the
person's right of petition or free speech under the United States or California
Constitution in connection with a public
issue . . . ."
(§ 425.16, subd. (b)(1).)
A defendant can meet the burden of
making a threshold showing that a cause of action is one arising from protected
activity by demonstrating that the act underlying the plaintiff's cause of
action falls within one of the four categories identified in section 425.16,
subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Among the protected activities identified in
subdivision (e) of section 425.16 are:
"(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made
in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law, (3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest."
"The anti-SLAPP statute's
definitional focus is not the form of the plaintiff's cause of action but,
rather, the defendant's activity that
gives rise to his or her asserted liability—and whether that activity
constitutes protected speech or petitioning." (Navellier
v. Sletten (2002) 29 Cal.4th 82, 92.)
" '[W]here a cause of action
alleges both protected and unprotected activity, the cause of action will be
subject to section 425.16 unless the protected conduct is "merely
incidental" to the unprotected conduct [citations] . . . .' [Citation.]
'[I]t is the principal thrust or gravamen of the plaintiff's cause of
action that determines whether the anti-SLAP[P] statute applies.' [Citation.]
' "[A] plaintiff cannot frustrate the purposes of the SLAPP statute
through a pleading tactic of combining allegations of protected and
nonprotected activity under the label of one 'cause of action.' " [Citation.]
Conversely, a defendant in an ordinary private dispute cannot take
advantage of the anti-SLAPP statute simply because the complaint contains some
references to speech or petitioning
activity by the defendant.
[Citation.]'
[Citation.]" (
175 Cal.App.4th 1363, 1369 (Raining Data).) "[I]t is the principal thrust or
gravamen of the plaintiff's cause of action that determines whether the
anti-SLAPP statute applies [citation], and when the allegations referring to
arguably protected activity are only incidental to a cause of action based
essentially on nonprotected activity, collateral allusions to protected activity
should not subject the cause of action to the anti-SLAPP statute.' [Citation.]" (Ibid.)
The trial court did not err by
denying the anti-SLAPP motion because the gravamen of the Petition does not
arise from protected activity. The
Petition for the workplace restraining order described various conduct in which
Perdue had engaged. Among the conduct
identified was the following:
(1)
That the situation began when Perdue claimed that he was owned money for
services he had provided to Rancho Guejito and he was not paid immediately;
(2)
That Perdue had told Rupp and Barnett that " '[i]t would be a lot
better for you (RANCHO) to have me as a friend than an enemy' ";
(3)
That Perdue continued to try to communicate with Rancho Guejito
employees about the payments through e-mails, despite having been informed on
November 1 and reminded on November 17, 2011, that he was to not to attempt to
communicate with Rancho Guejito employees and was to communicate only with
Rancho Guejito's attorney, Gregory Kane;
(4)
That Perdue did not heed this admonition, and on November 18, 2011, Kane
informed Perdue that his e-mail address would be placed on the " 'blocked
sender' list of all RANCHO employees to prevent him from bothering them";
(5)
That on December 2, 2011, Perdue used subterfuge by claiming to be a
delivery person in order to gain access to the property, and thereafter
followed an employee to the Rancho Guejito offices and attempted to follow her
inside. Perdue "tried to force
himself into the office," but the employees refused to allow him to enter
or to accept anything from him. Perdue
was again told that he would have to contact the attorney, Gregory Kane, concerning
any business that Perdue had with Rancho Guejito;
(6)
That on January 10, 2012, Perdue sent a letter and e-mail message to
Rancho Guejito personnel, despite having been told not to do so. Perdue admitted that he had hired a
helicopter to fly over the property to investigate the cattle so that he "could
report [Rancho Guejito] to the authorities." Perdue attached photographs of dead cows;
(7)
That on January 13, 2012, Perdue exchanged e-mail messages with Kane
regarding Perdue's repeated attempts to contact Rancho Guejito personnel. Perdue stated that Rancho Guejito "has
enough problems without pissing me . . . off";
(8)
That on or around January 20, 2012, Perdue began using a new e-mail
address in order to continue to communicate with Rancho Guejito personnel, in
an apparent attempt to circumvent his having been placed on the " 'blocked
sender' list";
(9)
That on January 31, 2012, Perdue sent an e-mail to Kane stating that
(10)
That on February 9, 2012, Coates and Peter Bozzo sent Perdue a letter
via certified mail insisting that he stop contacting Rancho Guejito personnel
and instead communicate only with Kane;
(11)
That on February 14, 2012, Perdue and two other men were seen by Rancho
Guejito employees driving up the dirt road leading to the main gate of Rancho
Guejito. The employees drove toward the
area, but Perdue turned the truck around and headed toward the exit. Once near the main entrance to the property,
Perdue stopped the truck and one of the passengers began taking photographs of
the property, including the security cameras on the property;
(12) That on February 17, 2012, Perdue
was aggressive and confrontational with ranch security personnel when he
arrived at a prearranged appointment to retrieve some of his personal property,
which personnel had placed outside of the Rancho Guejito gate. Perdue took photographs of Rancho Guejito
security personnel, and, after hooking a trailer up to his truck, asked them, " 'Do you have permits?' " One employee interpreted Perdue's question as
asking whether they had permits for their holstered weapons. Perdue then stated, " 'You know this is a
county road all the way up to the double gates[.]' "
Perdue asked other questions, but the security personnel continued to
tell Perdue that he was to direct his questions to Rancho Guejito's attorney,
as he had been told numerous times;
(13)
That on February 20, 2012, Perdue arrived with another man to retrieve
the remainder of his personal property.
Perdue said to security personnel, " '[T]ell Octavio, Jack and
Lige, that we are not finished with them.' " Perdue and his companion used cameras to
videotape and take photographs at the main gate, including taking photographs
of the security cameras and the security personnel. Perdue's demeanor was " 'clearly
combative' "; and
(14)
That on February 23, 2012, a Rancho Guejito employee observed a red
helicopter flying over the Rancho Guejito property. The red helicopter looked similar to the red
helicopter that Perdue had admitted using when he flew over the property before
and took photographs of the dead cattle.
Perdue contends that the Petition
alleges a cause of action arising from protected activity because all of the
acts underlying the Petition fall into one of two of the four categories
identified as protected activities under section 425.16, subdivision (e)—i.e.,
"written or oral statement[s] or writing made in a place open to the
public or a public forum in connection with an issue of public
interest," or "other conduct
in furtherance of the exercise of the constitutional right of petition or the
constitution right of free speech in connection with a public issue or an issue
of public interest." Perdue
suggests that Rancho Guejito's Petition sought to restrain him from flying
" 'over or near the property' " in an attempt to prevent him from
being able to "report[] Rancho Guejito's activities to government
authorities." Perdue further
contends that the "public interest" component of subdivisions (e)(3)
and (e)(4) of section 425.16 is met because "[t]here is a strong public
interest in the Rancho Guejito property," which he asserts is evidenced by
"the multitude of media articles about Rancho Guejito and community
involvement concerning the preservation of Rancho Guejito's land." According to Perdue, a number of the events
about which Rancho Guejito complained in its Petition involve him taking
photographs or video, bringing reporters to take photographs, or asking about a
public county road adjacent to the property.
Perdue claims that all of these things constitute activities performed
in accordance with his First Amendment
rights, in that he was documenting activities of public interest, such as
the preservation of environmentally sensitive habitats.
Although there are some activities
alleged in the Petition that arguably involve conduct that may implicate
Perdue's First Amendment rights, such as the taking of video or photographs
from public locations, including from public air space, the description of
Perdue's conduct that Rancho Guejito raises in its Petition illustrates that
the principal thrust or gravamen of
Rancho Guejito's Petition seeking a workplace violence restraining order is
Perdue's harassing behavior toward Rancho Guejito personnel about being paid,
as well as his threatening comments and behavior, including an instance in
which he used subterfuge to gain access to the Rancho Guejito property. Perdue repeatedly contacted Rancho Guejito
personnel despite having been directed numerous times to communicate solely
with Rancho Guejito's attorney. It is
this conduct that forms the thrust of Rancho Guejito's Petition to enjoin
Perdue from further harassment.
name="_ftnref9" title="">[9]
We conclude that the potentially
protected conduct mentioned in the Petition is " 'only incidental to
[the] cause of action based essentially on nonprotected activity.' [Citation.]" (Raining
Data, supra, 175 Cal.App.4th at
p. 1369.) Despite Perdue's suggestion
that the "majority of" the acts alleged in support of the Petition
"involved Perdue taking photographs or videotaping Rancho Guejito from
public property or airspace, taking reporters near Rancho Guejito, or asking
about a public county road that was gated by Rancho Guejito personnel," a
review of the allegations about Perdue's conduct that are identified in the
Petition demonstrates that of the 14 different incidents raised, only four even
mention such activities (the February 14, February 17, February 20, and
February 23, 2012 incidents). Further, even
with respect to these particular incidents, with the exception of the February
23 incident, it is clear that the conduct about which Rancho Guejito is
complaining is Perdue's repeated appearances at the Rancho Guejito property and
his confrontations with Rancho
Guejito staff. The brief references to
the fact that someone, either Perdue himself, or someone he brought with him,
was photographing or video recording, are mentioned only to provide context
regarding the interactions, and do not form the crux of Rancho Guejito's
complaints about Perdue's behavior.
There is nothing in the Petition that would suggest that Rancho Guejito
was attempting to prevent Perdue from talking to the press, informing
governmental agencies of concerns that he might have regarding the Rancho
Guejito property, or engaging in other protected activities. Although the allegations concerning the
February 23, 2012 incident referred to a possible sighting of Perdue using a
helicopter to fly over the Rancho Guejito property, which arguably constitutes
nonexpressive conduct to facilitate Perdue's exercise of free speech protected
by the constitution, this conduct clearly did not form the crux of Rancho
Guejito's Petition and instead, is merely incidental to the overall thrust of the
Petition. Contrary to Perdue's portrayal
of the dispute between him and Rancho Guejito as one with broader public
implications, it is, at its core, an "ordinary private dispute" (
p. 1369) between these parties. The fact
that the Petition contains some references to potentially protected speech or
petitioning activity by Perdue is insufficient to allow Perdue to take
advantage of the anti-SLAPP statute.
b. Rancho
Guejito demonstrated a probability of prevailing on the merits
"[I]n order to establish the
requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff
need only have ' "stated and substantiated a legally sufficient
claim." ' [Citation.]" (Navellier,
supra, 29 Cal.4th at p. 88.) " '[T]he plaintiff "must
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited." ' [Citation.]" (Id.
at pp. 88-89.)
The showing required for purposes
of overcoming an anti-SLAPP motion is only that the claim being made is one of
"minimal merit." (
Rancho Guejito met that standard by presenting evidence in support of
its Petition, in the form of declarations supporting the allegations of the
Petition, that Perdue conveyed a credible threat of violence to Rancho Guejito
employees at their workplace, and that irreparable harm would result to an
employee if a prohibitory injunction did not issue because there was a
probability that Perdue would engage in unlawful violence in the future. (See Scripps
Health, supra, 72 Cal.App.4th at
p. 355.)
In the Petition, Rancho Guejito set
forth a number of allegations demonstrating that Perdue conveyed a credible
threat of violence to employees at their workplace, and supported those
allegations with declarations from the employees. Again, under the statute, a "
'[c]redible 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, or the safety of his or her immediate family, and that serves no
legitimate purpose." (§ 527.8,
subd. (b)(2).) Rancho Guejito presented
evidence that after Rancho Guejito refused to pay Perdue's
"invoices," he told one of Rancho Guejito's employees, " 'It
would be better for you (Rancho Guejito) to have me as a friend than an enemy.'
" Rancho Guejito also presented
evidence that after making this statement, and after being told numerous times
not to contact Rancho Guejito employees directly, Perdue repeatedly e-mailed
Rancho Guejito staff, asking about the payment that he claimed he was
owed. The declarations that Rancho
Guejito submitted further demonstrated that Perdue continued this harassing
conduct when he appeared at a restricted access gate on the Rancho Guejito
property, presenting himself as someone with a delivery, but not identifying
himself. He gained access to the property
using this ruse, and followed an employee to the office door. After this event, Perdue wrote in an e-mail
to Kane, "It seems to me that the management there has enough problems
already without pissing me off."
Perdue's course of conduct as
outlined in Rancho Guejito's Petition and supported by the declarations was
sufficient to place a reasonable person in fear for his or her safety. Perdue made actual threats, including telling
employees that it would be better "to have [him] as a friend than an
enemy," and made an implied threat when he said that management had enough
problems "without pissing [him] off."
These statements, particularly when combined with Perdue's repeated
contacting of employees and his penchant for appearing on the Rancho Guejito
property or just outside of its boundaries despite knowing that he was not
welcome, are sufficient to constitute a credible threat of violence.
Perdue cites to the California
Judges Benchguide 20: Injunctions Prohibiting Civil Harassment and
Workplace/Postsecondary School Violence (2012), section 20.69, pages 20-41, to
posit that his conduct in this matter did not amount to a "credible threat
of violence" and instead constituted activities with a
conduct about which the petitioner complains must serve no legitimate purpose
in order to constitute civil harassment.
If the petitioner admits to owing money to the respondent, then it is
not civil harassment for the respondent to call the petitioner on a reasonably
consistent basis to ask when the petitioner will satisfy this debt." Perdue fails to acknowledge two important
distinctions regarding what the Petition alleged happened here. First, the conduct about which Rancho Guejito
complained went beyond mere calling on a "reasonably consistent
basis" to ask for satisfaction. It
included actually threatening, and repeatedly contacting, various employees
after having been told to communicate with only one individual regarding his
claim. Second, Rancho Guejito did not
admit to owing Perdue money, and, in fact, disputed the validity of his claim
for $326,000.
The escalating nature of Perdue's
conduct, including his aggressive and combative interactions with Rancho
Guejito security personnel after he had made threatening statements and
continued to contact other employees, demonstrated a reasonable probability
that Perdue would continue to engage in this type of conduct, and would engage
in additional threatening and violent behavior if not restrained from doing
so.
B.
workplace violence restraining order
Perdue contends that the trial
court erred in granting Rancho Guejito's Petition and issuing a restraining
order against him.
1.
As set forth in part III.A.1.b.,
"obtain a permanent injunction under section 527.8, subdivision (f), a
plaintiff must establish by clear and convincing evidence" both "that
a defendant engaged in unlawful violence or made credible threats of
violence," and "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, supra, 72 Cal.App.4th at
p. 335.)
"On
appeal . . . 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." (
Cal.App.4th 526, 538.) We affirm a
judgment if it is supported by substantial evidence, even though substantial
evidence to the contrary exists and would have supported a different
result. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) " ' The sufficiency of evidence to
establish a given fact, where the law requires proof of the fact to be clear and
convincing, is primarily a question for the trial court to determine, and if
there is substantial evidence to support its conclusion, the determination is
not open to review on appeal.'
[Citations.]" (
750.)
In addition, the trial court's
exercise of its discretion to grant injunctive relief "will not be
disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]" (Shapiro
v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)
2. Analysis
a. Rancho
Guejito's motion to strike
As an
initial matter, we must address Rancho Guejito's motion to strike certain
portions of Perdue's opening brief on appeal.
After Perdue filed his opening brief, Rancho Guejito filed a motion to
strike references in Perdue's appellate brief to a security video recording
that captured some of the December 2, 2011 incident in which Perdue used
subterfuge to gain entry to the Rancho Guejito property. Rancho Guejito argues that the trial court
did not view this particular recording, that this recording was not admitted in
evidence in the trial court, and that the recording is therefore not part of
the appellate record on review. Rancho
Guejito also moved to strike the references in Perdue's briefing regarding
"alleged 'illegal' road grading" because this court denied Perdue's
request to take judicial notice of certain documents purporting to relate to
violations and/or warnings various governmental agencies issued to Rancho
Guejito
The parties dispute whether the video recording on which
Perdue relies is part of the appellate record.
Our review of the record and the papers filed by the parties with
respect to Rancho Guejito's motion to strike reveals the following relevant background: The recording in question is apparently one
of five videos that existed on a single "thumb drive," two of which
Rancho Guejito's attorney sought to admit as evidence at the hearing. Perdue's attorney apparently had not received
the copy of the videos that Rancho Guejito had served on him prior to the
hearing, and he objected to the introduction of any of the video recordings on
the thumb drive. During a break,
Perdue's attorney was given the video recordings that Rancho Guejito was
offering to watch. After the break,
Perdue's attorney no longer objected to Rancho Guejito offering, and the court
admitting, the two videos at issue. The
court reviewed the two videos during the evidentiary hearing. The entire thumb drive was lodged as
"Exhibit C."
At some point after the April 11 hearing, the thumb drive
was lost. Neither the parties nor the
court were able to locate it. In the
process of having an identical thumb drive marked as Exhibit C, it became clear
that there were five separate videos on the thumb drive, that Rancho Guejito had
offered only two of the five videos in evidence, that the trial court had
reviewed only these two videos, and that those two videos were the only videos
on the thumb drive that had been admitted in evidence. The record thus establishes that there was no
ruling regarding the admissibility of the other three videos because they were
not offered as evidence. The record does
not establish why Perdue did not seek to have the video on which he relies in
his appellate brief introduced as evidence, particularly in view of the fact
that he maintains that it supports his position with respect to the evidence
underlying the workplace violence restraining order.
Perdue
argues that because the entire thumb drive was lodged as Exhibit C, all of the
videos on Exhibit C are a part of the record on appeal. Absent certain exceptions not relevant here,
"all exhibits admitted in evidence, refused, or lodged are deemed part of
the record." (Cal. Rules of Court,
rule 8.122(a)(3).) However, we conclude
that the California Rules of Court, rule 8.122 was not intended to encompass
items collectively placed in a digital "container" but never
independently offered in evidence, or even mentioned, at the evidentiary
hearing to be considered part of the appellate record. For this reason, we agree with Rancho Guejito
that the specific video to which Perdue refers is not part of the record on
appeal. We therefore grant Rancho
Guejito's motion to strike Perdue's references to this video.
With respect to Rancho Guejito's motion to strike the
references in Perdue's briefing regarding "alleged 'illegal' road
grading," we deny the motion. The
documents of which Perdue wanted this court to take judicial notice are
government documents relating to notices of violations and/or warnings purportedly
issued by government agencies to Rancho Guejito related to road grading on the
property, waste discharge violations, and unauthorized discharge of fill
material. Our decision to not take
judicial notice of these documents does not mean that there is nothing in the
record pertaining to Perdue's allegations of improper road grading. Perdue testified regarding viewing this
grading and his concern that the grading had been performed without being
properly permitted.
b. There
is substantial evidence to support
the trial court's determination that Perdue made credible threats of violence
Perdue
contends that there is insufficient evidence that he committed "unlawful
violence." Perdue asserts that the
trial court found that on December 2, 2011, he committed an act of
"unlawful violence" when he arrived at the property and gained
entrance through the gate by using subterfuge.
Perdue makes much of the fact that the trial court appeared to rely on
Soto's declaration in concluding that Perdue "tried to force his way
inside Rancho Guejito's offices," and complains that Soto's declaration is
contradicted by Perdue's testimony, as well as by Barnett's testimony.
What Perdue
fails to acknowledge is that the statute requires that the respondent have
engaged in "unlawful violence" or
"a credible threat of violence" in order for a workplace violence
restraining order to issue. By focusing
on only the "unlawful violence" aspect, Perdue ignores the
significant and substantial evidence that his conduct amounted to a
"credible threat of violence," as the trial court found. Perdue's conduct in arriving at Rancho
Guejito on December 2, 2011, coming to the gate on foot after hiding his car,
failing to identify himself, and attempting to see Barnett, all after having
been told multiple times by that point that he was not to have any contact with any Rancho Guejito employees, was
itself threatening and harassing behavior, irrespective of whether he
ultimately made any physical attempt to force his way through the office
door.
Again, the
statute defines "[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).) Perdue
suggests at various points in his briefing that he had a "legitimate
purpose" for virtually all of his conduct.
For example, he contends that the purpose of two of his visits to Rancho
Guejito was to retrieve his personal property, and that his flying in a
helicopter over the property was a constitutionally protected act, as was his
bringing journalists and/or photographers to the property. Perdue also contends that he was simply
attempting to "get payment on his invoices," which, he asserts, is a
"legitimate purpose." As we
have already explained, Perdue's repeated and harassing attempts to get Rancho
Guejito personnel to pay him the $326,000 that he was demanding (despite the
absence of any contract between the parties, oral or written, to support such a
claim), cannot be considered to have been done for a "legitimate
purpose."
Perdue failed to comply with Rancho
Guejito's reasonable request that he communicate only with Kane about the
matter, and ignored that request numerous times. Further, his "requests" for payment
went beyond simply asking to be paid.
Instead, Perdue made various threats in his demands for payment. Such conduct cannot reasonably be considered
"legitimate." Perdue
valid, and concludes that his demands for payment were therefore
legitimate. However, Rancho Guejito has
always disputed Perdue's "invoices."
In this context, Perdue's repeated harassment of Rancho Guejito
employees about being paid on the disputed invoices cannot be considered to
have been legitimate.
Further, there is ample evidence of
Perdue's vague and repeated threats to Rancho Guejito employees. Rancho Guejito witnesses Rupp and Barnett
stated that at the October 2011 meeting, Perdue said, " 'It would go a lot
better for Rancho Guejito if I was your friend rather than your enemy,' "
and that when asked what he meant by that, he responded, " 'You'll see.'
" The trial court determined that
these statements "reasonably caused Rupp and Barnett to fear for their
safety." Given this evidence, the
trial court's conclusion that Perdue made a credible threat of violence is
wholly reasonable. Further, Perdue later
made another indirect and vague threat when he told Kane that Rancho Guejito
"has enough problems already without pissing me off." Other Rancho Guejito employees said that
Perdue asked them to " '[t]ell Octavio, Jack and Lige, that we are not
finished with them.' " These
statements, together with Perdue's repeated appearances at the Rancho Guejito
property, constitute substantial evidence that Perdue engaged in a course of
conduct that constituted a credible threat of violence. A reasonable person would find this behavior
troubling and cause for fear.
There is clearly substantial
evidence to support the trial court's findings that Perdue engaged in a pattern
of conduct that amounted to credible threats of violence, justifying the trial
court's issuance of the workplace violence restraining order.
c. The
trial court did not err in considering the threat that Perdue made at a
restaurant
Perdue
suggests that the trial court improperly considered the threat that Perdue made
to Rupp and Barnett at an off-site restaurant in October 2011. He contends that this statement is
insufficient to support a finding of a credible threat of violence, and that
the trial court should not have considered the statement in its analysis,
because (a) it was not a threat made at the workplace, (b) it was not a threat
of "violence," and (c) Perdue had a legitimate purpose, in that he
was "[s]eeking to get paid for work
performed . . . ."
These arguments are meritless.
First, a threat need not be made at
the workplace in order for it to be considered in determining whether a
workplace violence restraining order should issue. A court must conclude that the threat of
violence "can reasonably be construed to be carried out
workplace" (§ 527.8, subd. (a), italics added). It is therefore not an issue that the threat
was made at an off-site restaurant. The
critical question is whether there is substantial evidence to support the
court's conclusion that Perdue made a threat that could reasonably be construed
to be carried out at the workplace. (See
City of Los Angeles v. Animal Defense
League (2006) 135 Cal.App.4th 606, 625-626 [because offensive internet
postings contained protected employee's home address but not office address,
postings could not "reasonably be construed as threats to be carried out
at the workplace"].)
Second, this threat could
reasonably be construed as a threat of "violence," particularly given
Perdue's conduct during the relevant time period. Perdue suggests that it was not a threat
against anyone's safety. However, the
victims of the threat, and the court, disagreed. The statement, " 'You'll see' "
when Perdue was asked what he meant when he said, " 'It would go a lot
better for Rancho Guejito if I was your friend rather than your enemy,' "
was particularly frightening to Rancho Guejito employees. After making these statements, Perdue went on
to behave in a harassing manner, repeatedly contacting employees, attempting to
enter the property, and engaging in confrontational behavior. Given his multiple ambiguous threats and his
unusual conduct, employees were justifiably concerned about how far Perdue
would take his harassing behavior. The
fact that the original threatening statement was vague, like the others, does
not mean that the statement could not induce reasonable fear for one's safety
in those to whom it was directed. If
anything, the fact that the threat left open what Perdue might do to exact his
revenge meant that employees could reasonably fear the worst.
Finally,
Perdue's suggestion that he had a "legitimate purpose" in making this
threat is unpersuasive. Even if we were
to assume that Perdue made the statement in an attempt to obtain payment for a
legitimate debt, there is simply no legitimate purpose in making this type of
threat to one who refuses to pay the debt.
d. There
is substantial evidence to support the trial court's determination that great
or irrevocable harm is likely to occur
the future
Perdue
contends that there is insufficient evidence to support the trial court's
finding that there is a likelihood of future harm. Perdue argues that because there is no
evidence that he has committed wrongful acts in the past, there can be no
evidence that he is likely to commit such acts in the future. Perdue's argument is based on the premise
that he did nothing wrong in any of the actions he directed at Rancho Guejito
employees. However, as we have
concluded, there is abundant evidence to support the court's findings that
Perdue's past conduct amounted to a credible threat of violence.
Perdue
compares this situation with the situation addressed in Scripps Health, supra, 72
Cal.App.4th 324. The injunction issued
by the trial court in Scripps Health
arose from a tension-filled meeting between a hospital administrator and Marin,
a patient's son. When the administrator
insisted that they needed to discuss Marin's mother and stood in front of the
door, blocking Marin's exit from the meeting room, Marin pulled the door open,
causing it to hit the administrator and push her into the wall. (Id.
at p. 328.) After this single violent
act, two significant things occurred.
First, Marin's mother transferred her health insurance and thus was
unlikely to return to the facility where her son's violent act occurred. (Id.
at p. 336.) In addition, Marin had
agreed to stay away from the hospital, and had fulfilled this promise during
the two-month time period between when the temporary restraining order was
vacated and the hearing on a permanent injunction was held. (Ibid.) Based on these facts, the appellate court found
insufficient evidence that Marin would repeat any violent conduct against
employees at Scripps and therefore concluded that a workplace violence
restraining order should not have been issued against him. (Ibid.)
Perdue, by
contrast, repeatedly communicated with Rancho Guejito employees and appeared on
or near the property on multiple occasions.
Further, unlike Marin, who had engaged in a single incident of violence
but had no history of threatening conduct, Perdue engaged in a series of
harassing and threatening conduct over a period of months. " '[C]ontext is critical in a true
threats case and history can give meaning to the medium.' [Citations.]" (Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129
Cal.App.4th 1228, 1250.) Perdue's
pattern of conduct and his repeated vague threats constitute substantial
evidence to support the trial court's determination that irreparable harm was
reasonably likely to occur if the injunction were not issued.
IV.
DISPOSITION
The trial
court's order denying Perdue's anti-SLAPP motion and its order issuing a
three-year workplace violence restraining order are affirmed. Rancho Guejito is entitled to costs on
appeal.
AARON, J.
WE CONCUR:
NARES,
Acting P. J.
IRION,
J.
name="_ftn1" title="">[1] The
parties dispute Perdue's involvement at Rancho Guejito after the completion of
the original contracts.
name="_ftn2" title="">[2] Perdue
states that the men who accompanied him were a journalist and a photographer.
