IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 27, 2010
ADMINISTRATIVE OFFICE OF THE COURTS, PLAINTIFF AND RESPONDENT,
NORMAN VALDEZ, JR., DEFENDANT AND APPELLANT.
(Lake County Super. Ct. No. CV 406727)
The opinion of the court was delivered by: Margulies, J.
Administrative Office of the Courts v. Valdez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the day he learned a family law decision adverse to him had been affirmed on appeal, defendant Norman Valdez, Jr., made repeated threats to kill the superior court commissioner who had rendered the decision. Eighteen months later, the trial court issued a workplace violence injunction against Valdez requiring him to stay away from the commissioner and the courthouse where he worked. Valdez appeals from the judgment, contending there is no evidence he engaged in any threatening or violent conduct toward the commissioner after the date of the original incident, or that there is any risk of future harm requiring permanent injunctive relief against him. We affirm the judgment.
On August 12, 2009, the Administrative Office of the Courts (AOC) filed a petition under Code of Civil Procedure*fn1 section 527.8 seeking a permanent injunction prohibiting Valdez from (1) engaging in violence or threats of violence against Lake County Superior Court Commissioner Vincent Lechowick, and (2) coming within 50 yards of Lechowick or his residence or place of employment. A temporary restraining order (TRO) was issued and the matter was set for an order to show cause (OSC) hearing. The case was specially assigned to Judge Mark Tansil of the Sonoma County Superior Court, and was heard on October 6, 2009.
A. Evidence at OSC Hearing
Over a two-year period from 2005 to 2007, Valdez was involved in a marital dissolution/child support matter assigned to Lechowick's courtroom. He appeared before Lechowick approximately 12 times. During that time Valdez filed a number of motions, all of which Valdez believed were decided adversely to him. Valdez unsuccessfully appealed two of these rulings. The second appellate ruling, issued on March 28, 2008, affirmed Lechowick's denial of Valdez's motion to reduce his child support obligations.
1. Threats Made on March 28, 2008
Valdez learned of the appellate decision when he returned home from work on March 28, 2008. Upon reading the decision that night, Valdez became distraught and told his wife, Lisa, he was going to kill Lechowick. Lisa believed Valdez had been angry with Lechowick for some time and he felt Lechowick had ruined his life. She thought at the time it was possible he would carry out his threat because he was more upset and agitated than she had ever seen him before. Lisa believed Valdez, a veteran of the Iraq war, was suffering from an exacerbation of his post traumatic stress disorder (PTSD). She became so concerned about Lechowick she called the National Veterans Suicide Hotline to see if they could help her husband calm down.
According to the hotline operator who answered the call, Valdez came on the line and told her "someone needed to come get him because he was ready to kill a judge."*fn2 Lisa also spoke to the operator, who was located in New York State. The operator informed Lisa the hotline was not associated with the Veteran's Administration (VA), but she would contact either a Lake County mental health agency or the Lake County Sheriff's Department. The hotline operator contacted the sheriff's office and provided the telephone operator at the sheriff's office with Valdez's telephone number and address. A sheriff's department dispatcher called the Valdez home within 15 or 20 minutes.
Valdez picked up the phone. After verifying she was speaking with Valdez, and explaining she had just gotten a call from "[t]he VA" and "they are concerned about you," the dispatcher asked Valdez if "[e]verything [was] ok there." In a very calm, matter-of-fact tone of voice, Valdez responded: "Oh, I'm fine and I'm not suicidal, but I will kill the judge." When asked why he felt that way, Valdez responded as follows, again stressing the word "will": "Because he screwed me over so bad and I'm tired of it and I will kill him." Valdez then asked the dispatcher if she wanted the judge's name. When she responded affirmatively, Valdez said, "Vincent T. Lechowick," pronouncing the judge's last name in a sing-song voice. Later in the conversation, Valdez stated, "Yeah, I got my appeal back and they went with what he said, so I got screwed over again, so I will kill the son-of-a-bitch." When the dispatcher asked Valdez if he had any weapons, Valdez responded: "I'm not gonna--it's going to be slow and painful with him." When the dispatcher followed up by asking him if he was "wanting to do that today," Valdez responded negatively.
Valdez gave the telephone to Lisa, who sounded tearful and very upset. She told the dispatcher she was not sure what her husband would do. She reported he had told her he needed to be locked up "because first chance he gets he's gonna do it." She acknowledged he had a rifle in the house, but no ammunition, and stated he did not know where the firing pin was. Lisa testified she had buried the firing pin two years earlier for fear Valdez would kill himself.
When sheriff's officer Steven Herdt arrived on the scene, Valdez continued making death threats. Herdt testified when he asked Valdez what was going on, Valdez stared into his eyes and said, in "a very serious monotone voice," he was going to kill Lechowick, and it was going to be a slow and painful death, and it "obviously probably wouldn't be that day but that he would carry it out." Valdez repeated his threats to Officer Herdt "numerous times." Herdt, who had been a police officer for six years, testified he believed Valdez posed a real threat to Lechowick. Even after Herdt advised Valdez he was under arrest for criminal death threats, Valdez repeated he "would carry it out."
2. Commissioner Lechowick's Testimony
Lechowick had been a judicial officer for over 29 years. He had retired out of Mendocino County as a superior court judge and had served as a commissioner in Lake County for seven years. Although he heard thousands of cases each year he served, this was the first time he had sought injunctive relief to protect himself from a litigant. When he received a call from the Lake County Sheriff's Department in March 2008, informing him someone was threatening to kill him, Lechowick immediately guessed it might be either Valdez or a female litigant who had appeared before him in an unrelated matter. Lechowick explained that Valdez's intensity, appearance, statements, and demeanor in the courtroom, as well as the number of times he came back to court on the same issues, made him stand out from other litigants in Lechowick's mind. Lechowick testified Valdez seemed "almost like a chimney that is about to explode."
Lechowick took the threat seriously and definitely believed Valdez might still act on his threat to kill him. He immediately began reassessing his security at the court and at home. Lechowick felt Valdez was still a threat to him, testifying, "In fact, even today in court, he appeared like he was trying to stare me down." Lechowick did not seek a civil injunction immediately because he wanted to see what was going to happen in the criminal case that had been brought against Valdez, which he expected would result in a restraining order related to probation or parole. Ultimately, because the criminal case was moving too slowly, he decided he wanted protection independent of those proceedings over which he would have more control.
On cross-examination, Lechowick acknowledged that (1) Valdez was subject to a stay-away order in the criminal case; (2) to his knowledge, Valdez had never contacted him or any family members outside the courthouse after March 28, 2008; (3) he had only one minor, uneventful contact with Valdez in the courthouse after March 28, when Valdez's case was mistakenly assigned to him and Valdez had to come to court, with permission, to get it reassigned; and (4) Valdez had never spoken threatening words to Lechowick.
3. Other Relevant Evidence
Lisa testified she had been a registered nurse for almost 19 years and had been trained in evaluating mental patients. She testified her husband wanted her to get him admitted to the VA hospital on March 28, 2008 for that purpose. He told her he needed help because he did not want to kill Lechowick. Lisa knew he had previously been diagnosed with PTSD. They called the VA hospital first and were waiting for a call back when they decided to try the hotline. Valdez testified he told the hotline operator, in response to her questions, that he needed mental health services and felt he could kill if he did not get them. Lisa testified she did not believe Valdez was capable of killing as she had observed him being unable to kill livestock they owned.
Under questioning by the court, Lisa testified Valdez was going to group therapy with a veterans support group, seeing a mental health professional associated with the VA, and taking medications. She could not recall any incidents in which he seemed to be out of control or talked about suicide in the six months preceding the hearing.
Before seeking an injunction, Lechowick had written a letter to the deputy district attorney in charge of Valdez's criminal case on September 26, 2008, asking for a lenient disposition of the case, including counseling for Valdez. Lechowick's letter noted the initial threats were communicated in the context of Valdez and his wife seeking help by calling a crisis line, and that Valdez had exhibited many positive attributes, including his employment record, love and support for his children, and honorable service to his country in Iraq.
At the time the injunction was entered, a three-year criminal protective order issued in May 2008 was already in place. That order barred Valdez from contacting Lechowick by any means and ordered him to stay at least 50 yards away from him, with certain exceptions for necessary business requiring him to be at the courthouse.
B. Trial Court Decision
The court granted the AOC's petition, finding by clear and convincing evidence there was a reasonable likelihood of future threats or harm. It entered an order providing Valdez could not contact Lechowick or come within 50 yards of Lechowick or the courthouse unless "he or his wife have a scheduled hearing or official business, but will identify himself and this order to security and will not approach Commissioner Lechowick or enter his courtroom." The order also permitted him to visit the offices of his attorney, his wife's attorney, and the VA office, which were all located near the courthouse.
Valdez timely appealed.
On review of an order entered under section 527.8, "[w]e apply the substantial evidence test, resolving all factual conflicts and questions of credibility in favor of . . . the prevailing party, and drawing all reasonable inferences in support of the trial court's findings." (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.)
Section 527.8 provides in relevant part: "Any employer, whose employee has suffered . . . a credible threat of violence from any individual, that can reasonably be construed to be carried out . . . at the workplace, may seek . . . an injunction on behalf of the employee . . . . [¶] . . . [¶] . . . 'Credible threat of violence' is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family . . . . [¶] . . . [¶] . . . If the judge finds by clear and convincing evidence that the defendant . . . made a credible threat of violence, an injunction shall issue . . . ." (Id., subds. (a), (b)(2), (f).)
Valdez contends no injunction under section 527.8 may issue unless the petitioner shows "not only one alleged 'bad act,' but a series or pattern of ongoing acts at the time the Injunction is sought." Since the evidence in this case shows Valdez directed no threats or improper acts toward Lechowick after March 28, 2008, he argues the trial court erred in granting the injunction. We reject Valdez's interpretation of the statute. In our view, an injunction may issue under section 527.8 based on a credible threat of violence even if the threat is not part of a pattern of conduct that is ongoing at the time the injunction is sought or issued.
Valdez relies on Leydon v. Alexander (1989) 212 Cal.App.3d 1 (Leydon), a case construing an earlier version of a different statutory section--section 527.6. Valdez emphasizes Leydon's holding that a single incident of harassment could not support an injunction under section 527.6. (Leydon, at p. 4.) He overlooks the fact section 527.6 read differently when Leydon was decided than it does today. At that time, section 527.6 authorized issuance of an injunction only in cases of "harassment" defined as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person . . . ." (Stats. 1987, ch. 1493, § 1.) The statute defined "[c]ourse of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (Ibid.) In contrast, today's version of section 527.6 authorizes an injunction if the defendant makes a single, knowing and willful statement that would place a reasonable person in fear for his or her safety, if the court finds there is an actual threat of future harm. (§ 527.6, subds. (a), (b); Russell v. Douvan (2003) 112 Cal.App.4th 399 (Russell).)
Section 527.8 was enacted to establish parallel provisions to section 527.6 in the context of workplace violence: "Given that section 527.6 only allowed injunctive relief for natural persons [citation], section 527.8 was enacted to allow a corporate employer to bring such an action on behalf of an employee. Section 527.8 was thus intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons. The express intent of the author of the legislation was to address the growing phenomenon in California of workplace violence by providing employers with injunctive relief so as to prevent such acts of workplace violence. [Citations.]" (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334 (Scripps), italics omitted.)
We therefore reject Valdez's argument that permanent injunctive relief under section 527.8 requires a series of bad acts that are still ongoing at the time the injunction is sought. Such a construction is unsupported by either the language of the current statute or by relevant case law.
Valdez next contends there is insufficient evidence to establish a reasonable probability his wrongful acts toward Lechowick would be repeated in the future. Valdez likens this case to the facts presented in Scripps. The trial court in Scripps permanently enjoined the defendant from contacting any Scripps Health employee or coming within 500 yards of a Scripps Health facility. (Scripps, supra, 72 Cal.App.4th at p. 330.) The evidence supporting the injunction consisted of a single incident in which the defendant angrily pushed a hospital employee aside and struck her with a door as he tried to leave a meeting convened to discuss the hospital's plan to discharge his mother after her surgery. (Id. at pp. 327-328.) On defendant's appeal from the order granting an injunction, Scripps argued section 527.8 did not require a showing of a threat of future harm as long as there was a finding by clear and convincing evidence the "defendant engaged in unlawful violence" under subdivision (f) of the statute. (Scripps, at pp. 330-331.) Since the defendant had precipitated an act of battery against a Scripps employee, Scripps argued the statutory grounds for the injunction were satisfied. (Ibid.)
The Court of Appeal disagreed, finding section 527.8 contained an implied requirement that there be evidence showing a reasonable probability the defendant's violent acts would be repeated in the future. (Scripps, supra, 72 Cal.App.4th at p. 336.) There was no such evidence in that case. The defendant's single act of battery against a Scripps employee arose from specific circumstances not likely to recur--his mother being discharged from the hospital, a Scripps employee blocking his attempt to leave a room. The defendant's mother was not likely to be a Scripps patient in the future, and there had been no further threats or acts of violence even though no TRO was in effect.
The facts here are distinguishable. First, Valdez's unlawful threats are far more serious than pushing someone to get out of a room. He made repeated death threats against a judicial officer, delivered in a tone of voice and under circumstances--the presence of a police officer--evidencing that he felt a strong compulsion to carry them out. The potential harm that would flow from underestimating defendant's likelihood of acting on his threats in the future is far more drastic and permanent here than in Scripps. Further, the circumstances that precipitated the threats, unlike those in Scripps, are reasonably likely to recur. It is impossible to predict how Valdez will respond if he suffers a conviction in his criminal case, or faces other stresses or setbacks in his life he in some manner attributes to Lechowick's decisions. To the extent Valdez's PTSD condition may explain his conduct on the date of the threats, there is no evidence it could not be triggered again by events in the future.*fn3 Finally, unlike the defendant in Scripps, Valdez was subject to a restraining order since the date of the incident and we have no evidence of how he would have conducted himself in its absence.
Valdez contends section 527.8 is inapplicable because there was no evidence of a credible threat of violence that "can reasonably be construed to be carried out at the workplace." (Id., subd. (a).) We disagree. Valdez's asserted grievances against Lechowick arose out of Lechowick's work as a commissioner performed at the courthouse. There is no evidence Valdez ever had contact with Lechowick except at the courthouse, or that he would have access to Lechowick except by contacting him in or near Lechowick's workplace. City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, cited by Valdez, is inapposite. In that case, the defendants had specifically targeted the employee's home as a site for their animal rights demonstrations, not his workplace, and the TRO entered in the case was directed exclusively at protecting him in his residence. (Id. at pp. 625-626.) Accordingly, no workplace injunction could be justified. Based on the evidence in this case, it is entirely reasonable to believe Lechowick required protection at his workplace.
Valdez further argues (1) it is inequitable to issue an injunction since he has in good faith discontinued the proscribed conduct; (2) multiple changes in circumstances after the threats of March 28, 2008 rendered injunctive relief moot or unnecessary; and (3) there was insufficient evidence to support a finding Valdez's conduct was likely to be repeated. To a large extent, these arguments merely restate similar contentions, discussed earlier, that Valdez advances under different argument headings.
Valdez's arguments boil down to the claim there is no reasonable likelihood he will repeat his wrongful conduct due to the following circumstances arising after the events of March 28, 2008: (1) he never repeated his wrongful acts in the 18 months between his "emotional reaction" on that date and the AOC's decision to seek an injunction, despite visiting the courthouse multiple times on other matters; (2) Lechowick's involvement in family law matters concerning Valdez and his ex-wife ended in May 2008, and there is no little or no likelihood of further conflicts between Valdez and Lechowick in the future; and (3) Valdez received no treatment for his PTSD before March 28, 2008, but he has been receiving care for that condition since that date.
It is true a change in circumstances can reduce the need for an injunction against harassment or violence. The Court of Appeal in Russell overturned an injunction entered under section 527.6 based on a single act of unlawful violence that was unlikely to be repeated--one attorney grabbing an opposing attorney's arm after a court appearance. (Russell, supra, 112 Cal.App.4th at pp. 400-401.) By the time of the hearing on the permanent injunction, the two attorneys were no longer adversaries in the underlying litigation and they did not otherwise regularly do business with or oppose each other. (Id. at p. 400.)
The case before us is distinguishable. A death threat delivered in a chillingly serious tone of voice and repeated to four different individuals, including a police officer, cannot be dismissed as lightly as momentarily grabbing hold of someone's arm. Valdez's wife was concerned enough about his potential to act on his emotions that she had hidden the firing pin to his gun. An experienced police officer hearing Valdez's statements was convinced he posed a real threat to Lechowick. Valdez continued threatening Lechowick even after the officer placed him under arrest. Those threats did not vanish simply because Valdez did not follow up on them in the ensuing months. His good behavior after March 2008 could have been because he was under a stay-away order entered in his criminal case. Valdez's wife testified Valdez had been angry with Lechowick for some time before the March 28 incident and believed Lechowick had "ruined his life." When he made the threats, Valdez made it clear he intended to carry them out in the future, not on the day they were made.
In fact, there is evidence from which it could be inferred Valdez was still angry at Lechowick at the time of the OSC hearing. Lechowick testified Valdez was trying to stare him down at the hearing. When Valdez was asked at the hearing whether he might become even angrier at Lechowick if he was found guilty on the criminal charges, Valdez at first refused to answer the question, citing the Fifth Amendment. When the court ordered him to respond, Valdez said, "I don't plan to. I've tried to move on, and as soon as everything is over I'm leaving this state." When coupled with the fact Valdez never apologized to Lechowick for the harm caused by the threat itself, and never made an unambiguous statement disavowing his threat, the trial court could properly infer that Valdez was still angry at Lechowick and blamed him for the legal jeopardy in which he found himself.*fn4 Although Lechowick was no longer making decisions affecting Valdez or his former wife after May 2008, there remains a very real possibility Valdez will hold Lechowick responsible if he loses his criminal case or suffers other setbacks in his life. Valdez's treatment for PTSD, while positive, does not in itself compel the denial of an injunction. There was no competent evidence before the court that the impulsive rage his wife Lisa attributed to that condition has been substantially alleviated by the treatment he is receiving.
Based on the entire record, we find the trial court's issuance of a permanent injunction is supported by substantial evidence.
The judgment is affirmed.
We concur: Marchiano, P.J. Dondero, J.