CSV Hospitality Management v. Lucas ( 2022 )

Filed 9/20/22; Certified for Publication 10/17/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CSV HOSPITALITY
MANAGEMENT LLC,
Plaintiff and Respondent, A163345
v. (San Francisco County
JERMORIO LUCAS, Super. Ct. No. CCH-21-583388)
Defendant and Appellant.
Jermorio Lucas appeals from an order granting the request by
petitioner CSV Hospitality Management LLC (CSV) for a restraining order
under the Workplace Violence Safety Act (Code Civ. Proc., § 527.8).1 Lucas
argues that he was denied his statutory and confrontational rights by being
disallowed to cross-examine CSV’s employee witness during the evidentiary
hearing. We agree, and reverse the order.
I.
All further undesignated statutory references are to the Code of Civil
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Procedure.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Request for a Restraining Order
At the time of the hearing on CSV’s restraining order request, Lucas
was living at the Aranda Residence, a residential hotel that provides
supportive housing to formerly homeless individuals.
In January 2021, CSV filed a petition for a workplace violence
restraining order against Lucas. CSV submitted affidavits from four of its
employees in support of the petition. The employees alleged that Lucas had
been very aggressive and confrontational towards other tenants and Aranda
Residence employees. For example, janitors Nelson Yee and Pedro Caamal
stated that Lucas frequently subjected them to verbal abuse while they were
working. He would also stalk them and take photos and videos of them
without their consent. Caamal stated that during one such incident, Lucas
forcefully pushed him into a window. Yee reported that Lucas had also
confronted him at two local businesses when Yee was off duty. The trial
court granted a temporary restraining order and set the matter for an
evidentiary hearing.
Lucas filed a response to the petition. He denied all of the allegations
against him. He stated that he recalled only one disagreement with Caamal,
which involved a dispute over coronavirus social distancing protocols. He
complained that Yee had addressed him with a racial slur and had harassed
him, frequently watching him when he left the bathroom after showering. He
indicated that he took Yee’s photograph in order to complain about him to the
property manager.
B. The Evidentiary Hearing
The hearing on CSV’s petition was held on February 26, 2021. Both
parties were represented by counsel. At the hearing, only Yee and Lucas
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provided testimony. The trial court questioned Yee regarding the allegations
he had made in his affidavit. Yee affirmed that each of the allegations was
correct. Lucas then testified, answering questions posed by his attorney. He
denied the allegations that Yee had leveled against him, asserting that Yee
was harassing him and that he had repeatedly asked Yee to leave him alone.
After Lucas’ testimony was concluded, the court stated it was ready to rule.
Lucas’ counsel requested an opportunity to cross-examine Yee and any of the
other witnesses.
The trial court refused to allow Lucas’s counsel to cross-examine Yee
concluding that the hearing was not a court trial, and there was no authority
to allow cross-examination at such a hearing. The trial court then granted a
three-year workplace violence restraining order, based on “clear and
convincing evidence” that had “been supported” and was “logical” and
“believable.” In contrast, the court found that Lucas’ testimony was “not
logical” and “not believable.” The order was entered on July 9, 2021, and
protects the four employees named in CSV’s petition. Under the order, Lucas
is required to refrain from harassing, threatening, following, or contacting
the four employees. He also must comply with stay away orders and is
forbidden from possessing a firearm. Violations of the restraining order are
punishable by up to one year in jail, and/or a fine of up to $1,000.
II.
DISCUSSION
A. The Workplace Violence Safety Act
Section 527.6 authorizes a person who has suffered harassment to
obtain an injunction to prevent further harassment. Section 527.8,
subdivision (a) provides the same right to an employer: “Any employer, whose
employee has suffered unlawful violence or a credible threat of violence from
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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.”
“[I]njunctive proceedings under section 527.8 are intended to parallel those
under section 527.6, which are procedurally truncated, expedited, and
intended to provide quick relief to victims of civil harassment.” (Kaiser
Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557; Scripps
Health v. Marin (1999) 72 Cal.App.4th 324, 333 (Scripps); see also USS-Posco
Industries v. Edwards (2003) 111 Cal.App.4th 436, 443 [Section 527.8
“address[es] the growing phenomenon in California of workplace violence by
providing employers with injunctive relief so as to prevent such” acts].)
To obtain a workplace violence restraining order, an employer must
prove its employee has suffered unlawful violence or a credible threat of
violence from an individual in the workplace. (§ 527.8, subds. (a), (e).) The
employer “must establish by clear and convincing evidence not only that [the
individual] 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, supra, 72 Cal.App.4th at
p. 335; City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 537-538
(Garbett).) “[T]he requirement of establishing the reasonable probability
wrongful acts, or simply unlawful violence, will occur in the future
guarantees that injunctive relief will be issued to prevent future harm
instead of punishing past completed acts.” (Scripps, at p. 335, fn. 9.)
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B. Standard of Review
Ordinarily, “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.” (Garbett,
supra, 190 Cal.App.4th at p. 538.)
C. Lucas Was Not Afforded His Statutory Right to Present Relevant
Evidence
Lucas maintains that the trial court limited his ability to present a
defense by depriving him of the opportunity to cross-examine Yee during the
evidentiary hearing. We agree. Although, as CSV correctly observes,
injunctive proceedings under section 527.8 are truncated, respondents are
still afforded the right to present their case.
Section 527.8 provides for an expeditious means to address alleged
“workplace violence” as defined under section 527.8, subdivision (b). Judicial
Council forms are utilized so that this remedy is easily accessible to the
public (§ 527.8, subd. (v)), and while a lawyer is permitted (§ 527.8, subd. (l)),
many of these matters proceed in pro per. Except for temporary restraining
orders, which may be granted ex parte (§ 527.8, subd. (e)), the issuance of a
restraining order under section 527.8 requires notice and a hearing. (§ 527.8,
subds. (h) & (m).) When a party seeks an injunction, the court must hold a
hearing, receive relevant testimony, and issue the injunction if it finds by
clear and convincing evidence that harassment exists. (§ 527.8, subd. (j).)
In the context of civil harassment orders, our courts have observed that
“the procedure for issuance of an injunction prohibiting harassment is self-
contained. There is no full trial on the merits to follow the issuance of the
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injunction after the hearing provided by Code of Civil Procedure section
527.6, subdivision (d). That hearing therefore provides the only forum the
defendant in a harassment proceeding will have to present his or her case.
To limit a defendant’s right to present evidence and cross-examine as
respondents would have us do would run the real risk of denying such a
defendant’s due process rights, and would open the entire harassment
procedure to the possibility of successful constitutional challenge on such
grounds.” (Schraer v. Berkeley Property Owners’ Ass’n. (1989) 207 Cal.App.3d
719, 732-733 (Schraer).) The same reasoning applies to proceedings under
section 527.8.
Cross-examination of the party who has petitioned for the restraining
order constitutes relevant evidence within the scope of the hearing. (See
Evid. Code § 773, subd. (a) [“a witness examined by one party may be cross-
examined upon any matter within the scope of the direct examination by each
other party to the action”].) Although Lucas’s counsel specifically asked to
cross-examine Yee, the trial court denied that request, stating that Lucas
was not entitled to cross examination because the proceeding involved a
hearing, not a trial. However, section 527.8, subdivision (j) specifically states
that the trial court “shall receive any testimony that is relevant” during the
hearing on a petition filed pursuant to that statute. (Italics added.) The
plain language of this provision suggests that the Legislature intended for a
trial court to consider all relevant evidence, including evidence obtained by
cross examination, when deciding whether to issue an injunction to prevent
workplace violence. The court’s failure here to allow Lucas to cross-examine
Yee was contrary to section 527.8, subdivision (j).
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D. Lucas Was Not Afforded His Due Process Rights
The trial court’s ruling denying cross-examination also raises due
process concerns. The right to due process set forth in the federal and state
constitutions requires the government to provide reasonable notice and an
opportunity to be heard before depriving a person of life, liberty, or property.
(U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7, subd. (a); Kentucky
Dept. of Corrections v. Thompson (1989) 490 U.S. 454, 460; Today’s Fresh
Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197,
212.) The due process requirement applies to restraining orders, including
those issued under section 527.8. (See Severson & Werson, P.C. v. Sepehry-
Fard (2019) 37 Cal.App.5th 938, 949 [failure to comply with statutory notice
requirement violates the restrained party’s due process rights under section
527.8.]; Ross v. Figueroa (2006) 139 Cal.App.4th 856, 866 [party opposing
domestic violence restraining order has due process right to testify, and raise
questions to be posed to the moving party]; cf. Schraer, supra, 207 Cal.App.3d
at p. 732 [due process may require oral testimony before issuing civil
harassment restraining order]; In re Jonathan V. (2018) 19 Cal.App.5th 236,
242 [due process must be satisfied before granting restraining order under
Welf. & Inst. Code § 213.5].)
Courts have long recognized the importance of cross-examination and
its crucial relationship to the ability to defend against accusations, deeming it
a due process right that is fundamental to a fair proceeding. (Chambers v.
Mississippi (1973) 410 U.S. 284, 294-295; Goldberg v. Kelly (1970) 397 U.S.
254, 269-270; In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [“The
importance of cross-examination cannot be doubted: ‘Cross-examination is
the principal means by which the believability of a witness and the truth of
his testimony are tested.’ ”].) “Because it relates to the fundamental fairness
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of the proceedings, cross-examination is said to represent an ‘absolute right’
not merely a privilege.” (Fost v. Marin County Superior Court (2000) 80
Cal.App.4th 724, 733; Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd.
(1984) 153 Cal.App.3d 965, 971 (Fremont) [describing cross-examination as
“fundamental” right].) Where, as here, a petitioner seeking a workplace
violence restraining order has offered testimony as to threats of violence, the
respondent has a due process right to cross-examine the witness with respect
to those allegations. (Cf. Manufactured Home Communities, Inc. v. County of
San Luis Obispo (2008) 167 Cal.App.4th 705, 711 (Manufactured Home
Communities) [“in ‘almost every setting where important decisions turn on
questions of fact, due process requires an opportunity to confront and cross-
examine adverse witnesses;” “ ‘An improper denial of the right of cross-
examination constitutes a denial of due process’ ”]; Columbia-Geneva Steel
Div., etc. v. Ind. Acc. Com. (1953) 115 Cal.App.2d 862, 865 [“It is a
deprivation of constitutional due process to receive evidence without the
opportunity to rebut and cross-examine”].)
CVS argues that any error was not prejudicial because there is no
indication that the result would have been any different if the trial court had
allowed Lucas’ attorney to cross examine Yee. We disagree. Because we
cannot know what Yee would have said on cross-examination, or the effect
such testimony might have had on the trial court’s decision, the error
requires reversal. (See Manufactured Home Communities, supra, 167
Cal.App.4th at pp. 711, 713 [administrative board’s refusal to allow
defendant to cross-examine witnesses constituted reversible error because, in
the absence of “ ‘the cross-examination . . . , [the court was] unable to say how
. . . the [board] would have regarded the facts in evidence in light of further
facts which might have been elicited’ ”]; Fremont, supra, 153 Cal.App.3d at p.
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971 [“The right of cross-examination of witnesses is fundamental, and its
denial or undue restriction is reversible error”].)
Because we have concluded that the restraining order must be reversed
due to denial of Lucas’s right to cross examine Yee, we need not address the
parties’ remaining arguments.
III.
DISPOSITION
The workplace violence restraining order is reversed. The trial court is
directed to issue an order terminating the restraining order, reinstating the
prior temporary restraining order and setting the matter for a new hearing
within the time period proscribed under section 527.8. The parties shall bear
their own costs on appeal.
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WISS, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A163345N

Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Filed 10/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CSV HOSPITALITY
MANAGEMENT LLC, A163345
Plaintiff and Respondent,
(San Francisco County
v. Super. Ct. No. CCH-21-
JERMORIO LUCAS, 583388)
Defendant and Appellant.
ORDER CERTIFYING
OPINION FOR
PUBLICATION
[NO CHANGE IN
JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on September 20, 2022,
was not certified for publication in the Official Reports. After the court’s
review of a request under California Rules of Court, rule 8.1120, and good
cause established under rule 8.1105, it is hereby ordered that the opinion
should be published in the Official Reports.
Dated: _______________________________
Humes, P. J.
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Trial Court: San Francico County Superior Court
Trial Judge: Hon. Murlene J Randle
Eviction Defense Collaborative, Adrienne Mendle and Ryan D. Murphy for
Defendant and Appellant.
Law Office of Michael Heath, Michael Heath and Howard Olsen for Plaintiff
and Respondent.
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