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Thomas Ryan v. Daniel Abarientos

December 27, 2010

THOMAS RYAN, PLAINTIFF AND RESPONDENT,
v.
DANIEL ABARIENTOS, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. (Super.Ct.No. TEC101010) Kelly L. Hansen, Judge.

The opinion of the court was delivered by: Hollenhorst J.

Ryan v. Abarientos

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Reversed.

Defendant Daniel Abarientos (Abarientos) appeals from an order granting a civil harassment injunction at the request of plaintiff Thomas Ryan (Ryan). Abarientos contends that his threat, contingent on its face on the occurrence of some other event, fails to justify injunctive relief when the contingent event fails to occur.

I. PROCEDURAL BACKGROUND AND FACTS

On November 20, 2009, Ryan filed a request for orders to stop harassment against Abarientos. Abarientos answered the request. The following evidence was submitted via written declarations and testimony at the hearing on December 11, 2009.

Abarientos and Ryan were employed by Amee Bay (the Company) in San Diego. On November 18, 2009, Abarientos notified the Company of Ryan's potential violation of the Company's ethics policy. Abarientos claimed that Ryan was selling surplus company equipment and directing that he be personally paid. Further, Abarientos claimed Ryan was asking workers to loan him money. Ryan found out about Abarientos's complaint, and on November 19, Ryan called Abarientos, saying "some people are digging into his [Ryan's] personal life."

On November 20, 2009, Abarientos reported for work and discovered that he had been stripped of his position as training record keeper. Shortly after Abarientos told his wife, she began to experience chest pains. Abarientos left work to take his wife to the hospital. He called Ryan and said, "Tom, I am going to take my wife to the hospital because she is having a heart attack due to your harassment."

According to Ryan, Abarientos called to say that his wife was having a stroke because of Ryan's harassment, "and that if anything happened to her, he would be coming after me." Ryan claimed Abarientos "was being relieved of some duties that he had due to non-performance, and he was being coached to be able to take back those duties over a time frame of six months to a year." Ryan claimed the conversation was "very angry and threatening," and stated that while he was "trying to calm [Abarientos] down to actually find out what was going on, he ended up just hanging up on me." Shortly thereafter, Ryan received a call from his wife, Lynda, who stated that Abarientos had threatened her via a telephone call. Lynda claimed she had received a call from the telephone number of Abarientos's wife. When Lynda returned the call, Abarientos answered and informed Lynda that he was taking his wife to the hospital. He claimed it was Lynda's fault, "and nothing had better happen to [his wife]." Lynda testified that she started to ask Abarientos if he was threatening her, but Abarientos cut her off and repeated it was Lynda's fault and then hung up. Abarientos' wife suffered an anxiety attack.

After talking with his wife, Ryan called Don Gurly, vice-president of the Company, because Ryan "wasn't sure what [Abarientos] was capable of." Ryan stated, "I felt it was necessary for me to close both of our buildings and send all of our employees home because I was seriously concerned for their safety at this point." It was agreed they would close the business and send the employees home for the ...


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