IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 27, 2010
THOMAS RYAN, PLAINTIFF AND RESPONDENT,
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
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 rest of the day. Ryan also filed a police report. Abarientos's employment was terminated immediately.
In response, Abarientos and his wife testified. They both denied that Abarientos had made any threats to Ryan or Lynda. According to the declarations, prior to November 20, 2009, Abarientos had informed the Company about his concerns that Ryan was engaging in unethical conduct by selling company surplus equipment for his personal gain. On the afternoon of November 20, the Company was hosting a farewell party for Bill Haver. Three of the Company's employees declared they had never seen Abarientos being violent or threatening to anyone at the company. One witness declared that she was present when Abarientos called Ryan and no threatening remarks were made to Ryan.
After listening to the evidence, the trial court granted the request and issued a restraining order against Abarientos for the period of one year. The court stated: "I do find that Mr. Ryan has proven his case by clear and convincing evidence. In light of the fact that the actions he took following the phone call, the numerous phone calls to higher management in his office, and the fact that they closed their office for half a day, indicate to me that there was a credible threat, and that Mr. Abarientos, while justifiably concerned about his wife, said to Mr. Ryan, if anything happened to his wife that he would be coming after him." Abarientos appeals.
II. DOES A THREAT CONTINGENT UPON THE OCCURANCE OF AN EVENT CONSTITUTE A CREDIBLE THREAT OF VIOLENCE?
A. Standard of Review
Code of Civil Procedure*fn1 section 527.6 authorizes a person who has suffered harassment to seek an injunction. Section 527.6 states: "For the purposes of this section, 'harassment' is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." (§ 527.6, subd. (b).) A "[c]redible threat of violence" is defined 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." (§ 527.6, subd. (b)(2).)
Section 527.6 was enacted "'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' [Citations.]" (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 729-730.) When an injunction is sought, the court must hold a hearing, receive relevant testimony, and issue the injunction if it finds, by clear and convincing evidence that harassment exists. (§ 527.6, subd. (d).) "[I]njunctions issued under . . . sections 527.6 and 527.8 . . . are reviewed to determine whether the necessary factual findings are supported by substantial evidence. [Citations.]" (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.)
To begin with, like Abarientos, we note Ryan fails to respond to the main issue raised in the opening brief, namely, whether a threat made contingent on its face on some other event justifies injunctive relief under section 527.6 where the contingent event fails to occur. Given Ryan's lack of response, Abarientos argues that we may assume Ryan has abandoned his attempt to support the judgment. Although the chance of summarily ending this case is tempting, we choose to address the merits of the issue.
The issue is whether or not there existed a "credible threat of violence." (§ 527.6, subd. (b)(2).) The facts are simple. Abarientos and Ryan worked together. Abarientos had concerns over some of Ryan's actions and ultimately decided to convey those concerns to the Company. Ryan was being investigated. Ryan demoted Abarientos. Based on how Abarientos was being treated, his wife suffered an anxiety attack. Abarientos told Ryan that if anything happened to his wife, he would be coming after Ryan. There was no threat made to Lynda. Ryan called one of the Company's officers and a decision was made to close the Company and send the employees home. Such action meant that the farewell party scheduled that day was canceled. Ultimately, nothing happened to Abarientos's wife other than her suffering an anxiety attack. Given these facts, there is no reason to suppose that Abarientos intends, or ever intended, to harm Ryan, Lynda, or any employee of the Company.
"[A]n injunction serves to prevent future injury and is not applicable to wrongs that have been completed. An injunction is authorized only when it appears that wrongful acts are likely to recur. [Citation.]" (Russell v. Douvan (2003) 112 Cal.App.4th 399, 402.) In deciding the likelihood of whether Abarientos would engage in wrongful acts, we consider the context in which the threat was made. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) At the time Abarientos "threatened" Ryan, Abarientos was under pressure because he thought his wife was having a heart attack. Although he threatened Ryan, the threat was contingent on something bad happening to Abarientos's wife. Upon receiving the news that she had merely suffered from an anxiety attack, the threat ended. There was no ongoing risk to Ryan.
Notwithstanding the above, the trial court found that Ryan felt emotional distress as a result of the perceived threat from Abarientos. Given the evidence, this court questions whether Ryan's emotional distress was the result of Abarientos's threat, or the fact that Abarientos had conveyed to the Company his concerns over some of Ryan's actions at the Company.
Based on the above, we conclude the findings of the trial court are not supported by the evidence.
The judgment is reversed. Abarientos is to recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P.J. RICHLIJ.