City of Los Angeles v. Herman

Filed 8/10/20; Certified for Publication 8/28/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CITY OF LOS ANGELES, B298581
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STRO03037)
v.
ARMANDO HERMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Jennifer H. Cops, Judge. Affirmed.
Armando Herman, in pro. per., for Defendant and
Appellant.
Michael N. Feuer, City Attorney, Vivienne A. Swanigan,
Assistant City Attorney, and Jamie Kim, Deputy City Attorney,
for Plaintiff and Respondent.
_________________________________
Armando Herman appeals from a workplace violence
restraining order imposed on him under Code of Civil Procedure
section 527.8. 1 The trial court ordered restrictions on Herman’s
contact with Deputy City Attorney Strefan Fauble after Herman
made threatening statements toward Fauble at city council
meetings. Herman argues that the restraining order was
unwarranted and violates his First Amendment rights. We
disagree and affirm.
BACKGROUND
1. Herman’s Course of Conduct
Herman regularly attends city council meetings in Los
Angeles and Pasadena. According to Herman, he has been
removed from meetings more than 100 times. Herman and
Fauble have known each other for several years through these
meetings.
On April 17, 2019, Herman attended a public hearing
before the Los Angeles City Council. Fauble was present at the
meeting in his role representing his employer, the City of Los
Angeles (City).
During the meeting, in a threatening manner, Herman
said, “ ‘Fuck Mr. Fauble,’ ” and stated that “ ‘everyone should
know’ ” that Fauble lives at a specific address in Pasadena, which
Herman publicly revealed.
On April 29, 2019, Herman attended a meeting of the
Pasadena City Council. During the public comment period,
Herman in an angry and threatening manner again disclosed
Fauble’s home address, including the floor of his apartment, and
1Subsequent undesignated statutory references are to the
Code of Civil Procedure.
2
described the location of Fauble’s home in relation to where the
Pasadena Council meets.
At that meeting, Herman also submitted public speaker
cards. One such card had a swastika drawn on it. Another card
had a drawing of a Ku Klux Klan hood with figures that were
either an “SS” or lightning bolts above Fauble’s name. Another
card contained Fauble’s home address and the statement “Los
Angeles City Attorney Mr. Strefan Edward Fauble of Mayor Eric
Garcetti & ATT Mike FEUER” with a swastika drawn next to
Herman’s comments. Other cards contained another drawing of
a Ku Klux Klan hood and the statement, “Fuck you Edward
Fauble.”
Finally, on May 1, 2019, Herman attended another meeting
of the Los Angeles City Council. He was disruptive and was
escorted out of the meeting. Before leaving, Herman stated
loudly and in a threatening manner, “ ‘fuck you Fauble. I’m
going back to Pasadena and fuck with you.’ ”
2. The Restraining Order
On May 7, 2019, the City filed a petition for a workplace
violence restraining order against Herman under section 527.8.
The petition was supported by a declaration from Fauble.
The petition sought an order precluding Herman from
harassing, threatening, contacting, or stalking Fauble or
disclosing the address of Fauble’s residence, and requiring
Herman to stay at least 10 yards away from Fauble while
attending city council and committee meetings. The trial court
granted a temporary restraining order containing those terms
and scheduled a hearing on a permanent order.
3
The hearing took place on May 30 and 31, 2019. 2 Fauble
testified. Herman was given the opportunity to ask Fauble
questions and to offer evidence and argument.
Herman explained that he made the challenged statements
at the city council meetings because he was upset about a change
in the city council rules and with his own homelessness. He
denied intending to threaten Fauble. Herman said that the point
of his Nazi symbolism was that he was “living in a holocaust.”
The trial court granted the City’s request for a restraining
order. The court concluded that the evidence showed a “credible
threat of violence.” Among other things, the court cited videos of
the incidents at the city council meetings showing Herman “very
agitated, very angry”; Herman’s disclosure of Fauble’s home
address; Herman’s statement to Fauble that “I’m going to go back
to Pasadena and fuck with you”; and Herman’s drawings of KKK
and Nazi symbols, especially in light of prior statements by
Herman indicating a belief that Fauble is Jewish. The court also
found that Herman’s threats were likely to recur in the absence
of a restraining order, citing the recent change in Herman’s
attitude toward Fauble.
The trial court explained that it was tailoring the
restraining order to “make it as specific as possible in order for
there to be protection for Mr. Fauble but for it not to hamper Mr.
Herman’s First Amendment right to speak at these meetings and
advocate for the causes it’s very clear for this court are very
personal and very close to his heart.” Accordingly, in addition to
standard restraining order provisions precluding Herman from
2 The record on appeal includes a reporter’s transcript only
for the second day of the hearing, May 31, 2019.
4
harassing, contacting, stalking, threatening, or engaging in acts
of violence against Fauble, the court ordered that Herman “may
attend council and committee meetings at the Los Angeles City
offices, but when in council and committee meetings, [Herman]
must maintain at least 10 yards distance between himself and
Strefan Fauble. [Herman] is also ordered not to further
disseminate Strefan Fauble’s home address online or in any
public forum.” The restraining order (Order) remains in effect
until November 30, 2020.
DISCUSSION
1. The Order Is Supported by Substantial
Evidence
Section 527.8 permits an employer to seek a restraining
order on behalf of an employee who 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.” (§ 527.8, subd. (a).) A “credible
threat of violence” includes a “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).) After a hearing, if a judge “finds
by clear and convincing evidence that the respondent engaged in
unlawful violence or made a credible threat of violence, an order
shall issue prohibiting further unlawful violence or threats of
violence.” (§ 527.8, subd. (j).)
The trial court found that the evidence showed a credible
threat of violence. The court also found that irreparable harm
would occur in the absence of an order because Herman’s
threatening conduct was reasonably likely to recur.
5
We must affirm these findings if they are based on
“substantial evidence.” City of San Jose v. Garbett (2010) 190
Cal. App. 4th 526, 538 (Garbett). In deciding whether there is
substantial evidence supporting the trial court’s findings, we
interpret the evidence in favor of the prevailing party, i.e., the
City. This means that we resolve all factual conflicts and
questions of credibility in favor of the City, and we draw all
reasonable inferences in favor of the trial court’s findings. (Ibid.)
Our task “begins and ends with the determination as to whether,
on the entire record, there is substantial evidence, contradicted or
uncontradicted,” which will support the trial court’s Order.
(Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873–874.)
The Order was supported by the evidence if Herman’s
statements would have placed “a reasonable person in fear for his
or her safety,” regardless of Herman’s subjective intent. (§ 527.8,
subd. (b)(2); Garbett, supra, 190 Cal.App.4th at pp. 538–539.)
The evidence was sufficient under this standard.
Herman’s threats were credible. Herman’s repeated
disclosure of Fauble’s home address served “no legitimate
purpose.” (§ 527.8, subd. (b)(2).) A reasonable person could
conclude that Herman disclosed Fable’s address so that Fauble
would know Herman could find Fauble’s residence. The
threatening context of these disclosures is further shown by
Herman’s direct threat that he would “go back to Pasadena
[where Fauble lives] and fuck with” him. The circumstances of
the threats, including Herman’s angry demeanor, supported the
trial court’s conclusion that the threats could reasonably be
viewed as serious.
A reasonable viewer could also conclude that Herman’s
threats were personal. Herman drew hateful Nazi and KKK
6
symbols on public speaker cards along with insults directed at
Fauble, and Herman had previously indicated a belief that
Fauble is Jewish.
Herman’s repeated threats, and the recent change in his
attitude toward Fauble, also support the trial court’s conclusion
that Herman’s conduct was reasonably likely to recur in the
absence of a restraining order. The trial court therefore properly
issued the Order based upon the evidence offered at the hearing. 3
2. The Order Does Not Violate the First
Amendment
Section 527.8, subdivision (c) precludes a court from issuing
a restraining order that prohibits speech or other activities “that
are constitutionally protected.” Herman argues that the Order
violates his right to freedom of speech under the First
Amendment to the United States Constitution. 4
3 As noted, the appellate record contains a reporter’s
transcript only for the second day of the hearing. Nevertheless,
sufficient evidence appears in the partial record to support the
trial court’s findings. Moreover, we must presume that the
missing portions of the record would support the trial court’s
Order. That is because an appealed judgment is presumed
correct, and it is the appellant’s burden to show error. (Randall
v. Mousseau (2016) 2 Cal. App. 5th 929, 935.)
4 Herman’s brief also refers to article 1, section 2 of the
California Constitution, which protects the right to freedom of
speech. Herman points out that the California Constitution is
more protective of free speech than the United States
Constitution. (See Gonzales v. Superior Court (1986) 180
Cal. App. 3d 1116, 1122–1123.) However, Herman does not
provide any explanation or authority showing how this general
7
Our Supreme Court has explained that, “once a court has
found that a specific pattern of speech is unlawful, an injunctive
order prohibiting the repetition, perpetuation, or continuation of
that practice is not a prohibited ‘prior restraint’ of speech.”
(Aguilar, supra, 21 Cal.4th at p. 140.) The trial court here found
that the threatening statements Herman made toward Fauble
were credible threats of violence that were not constitutionally
protected.
That finding was correct. “True threats” are not
constitutionally protected speech. (People v. Lowery (2011) 52
Cal. 4th 419, 424 (Lowery).) A constitutionally unprotected threat
is one that “a reasonable listener would understand, in light of
the context and surrounding circumstances, to constitute a true
threat, namely, ‘a serious expression of an intent to commit an
act of unlawful violence’ [citation] rather than an expression of
jest or frustration.” (Id. at p. 427, quoting Virginia v. Black
(2003) 538 U.S. 343, 359 (Black).)
As discussed above, the trial court concluded that Herman’s
threatening statements would “place a reasonable person in fear
for his safety.” That finding was reasonable, and Herman’s
principle is relevant here. Our Supreme Court has explained
that the analysis of a prior restraint on unlawful speech is the
same under the United States and California Constitutions.
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121,
142–145 (Aguilar).) Courts of appeal have also applied the same
analysis under the California and United States Constitutions to
the scope of unlawful threats under section 527.8. (See USS-
Posco Industries v. Edwards (2003) 111 Cal. App. 4th 436, 445–
446; Garbett, supra, 190 Cal.App.4th at p. 536.) We therefore
draw no distinction between the two constitutional provisions in
our analysis.
8
threats therefore fell outside the scope of First Amendment
protection.
Herman does not clearly explain the basis for his argument
that the Order violates the First Amendment. However, his brief
appears to suggest that the Order is invalid because Herman did
not actually intend to harm Fauble. That claim, even if true,
does not change our analysis. 5
An actual intent to cause harm is not a requirement to
prove a threat that falls outside the protection of the First
Amendment. “The speaker need not actually intend to carry out
the threat. Rather, a prohibition on true threats ‘protects
individuals from the fear of violence’ and ‘from the disruption
that fear engenders,’ in addition to protecting people ‘from the
possibility that the threatened violence will occur.’ ” (Black,
supra, 538 U.S. at pp. 359–360.)
A threat can also fall outside the protection of the First
Amendment even if the speaker does not intend to intimidate a
particular person. As our Supreme Court explained in Lowery,
“the category of threats” falling outside the scope of the First
Amendment “includes but is not limited to threatening
statements made with the specific intent to intimidate.” (Lowery,
supra, 52 Cal.4th at p. 427.) The relevant issue is not what the
speaker intended, but what a reasonable listener would
understand. (Ibid.)
Herman cites the decision of the Ninth Circuit Court of
Appeals in United States v. Bagdasarian (9th Cir. 2011) 652 F.3d
5 We do not decide this factual issue. It is not our role as
an appellate court to do so, and in any event the issue is
irrelevant to the propriety of the trial court’s Order.
9
1113 for the proposition that establishing a true threat requires
proof that meets both an “objective” and a “subjective” standard.
However, our Supreme Court rejected this analysis in Lowery.
The court explained that it was “not persuaded” by the analysis
in Bagdasarian that “every statute criminally punishing threats
must include as an element of proof the defendant’s subjective
intent to make a threat.” (Lowery, supra, 52 Cal.4th at p. 427, fn.
1.) We must follow the law as it has been interpreted by our
Supreme Court. 6
Most of the prohibitions in the trial court’s Order—such as
the orders that Herman refrain from violence, stalking, and
assault of Fauble, and the requirement that Herman remain 10
feet away from Fauble at meetings—concern conduct rather than
speech. The portions of the Order that do apply to speech—i.e.,
the prohibition against threats of violence and the order
precluding Herman from disseminating Fauble’s home address—
are based upon specific prior threatening conduct that was not
protected by the First Amendment. The Order was therefore
constitutionally permissible. (See Aguilar, supra, 21 Cal.4th at
p. 140.)
3. The Order Did Not Violate Due Process
Herman appears to claim that the trial court issued the
Order in violation of due process requirements. However, he does
6 Herman also appears to challenge the constitutionality of
the particular city council rule that caused him to be upset at the
city council meetings. That argument is irrelevant to our
decision. The reason for Herman’s anger does not matter.
Whatever the reason for Herman’s threats, if those threats
justified a restraining order under section 527.8, we must affirm
the trial court’s Order.
10
not support that claim with any specific argument explaining
how his rights were allegedly violated.
The trial court conducted a two day hearing after providing
notice to Herman. At the hearing, Herman had the opportunity
to question witnesses and to provide his own evidence and
argument. We find no violation of Herman’s due process rights.
DISPOSITION
The Order is affirmed. The City of Los Angeles is entitled
to its costs on appeal.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
11
Filed 8/28/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CITY OF LOS ANGELES, B298581
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STRO03037)
v.
ORDER CERTIFYING OPINION
ARMANDO HERMAN, FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on
August 10, 2020, was not certified for publication in the Official
Reports. For good cause it now appears that the opinion should
be published in the Official Reports, and it is so ordered.
___________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.