Filed 3/29/13 Tri-City Healthcare Dist. v. Young CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TRI-CITY HEALTHCARE DISTRICT, D059573, D059592, D059594 and D059595 Plaintiff and Respondent,
v. (Super. Ct. Nos. 37-2010-00062910- JOHN YOUNG, CU-HR-NC, 37-2010-00062911-CU- HR-NC, 37-2010-00062912-CU-HR- Defendant and Appellant. NC and 37-2010-00062913-CU-HR- NC)
CONSOLIDATED APPEALS from orders of the Superior Court of San Diego
County, Harry L. Powazek, Judge. Affirmed.
Tri-City Healthcare District (Tri-City) petitioned for protective orders against
Dr. John Young on behalf of four of its employees. (Code Civ. Proc.,1 § 527.8.) After
an evidentiary hearing, the court issued orders enjoining Dr. Young from further contact
with the four employees and prohibiting Dr. Young from entering Tri-City's hospital
(except for emergency purposes). The court additionally provided a procedure whereby
1 All further statutory references are to the Code of Civil Procedure. Dr. Young could participate in hospital board meetings without being physically present
at the hospital.
On appeal, Dr. Young raises numerous contentions, including: (1) insufficient
evidence supported the need for the section 527.8 protective orders; (2) the court failed to
apply proper legal standards and proof burdens; (3) Tri-City sought the orders for an
improper purpose; and (4) the protective orders violated his First Amendment rights to
attend governmental board meetings. The contentions are without merit and we affirm
the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Tri-City is a subdivision of the state and operates a hospital, Tri-City Medical
Center (Hospital), in Oceanside, California. Tri-City is governed by a publicly elected
board of directors (the Board). Dr. Young, a cardiothoracic surgeon, previously practiced
at the Hospital. In 2009, Tri-City revoked Dr. Young's medical privileges based on a
finding that he had engaged in disruptive, unprofessional behavior. Dr. Young's
mandamus petition challenging the revocation is pending in the superior court in a
separate action (mandate action).
On December 13, 2010, Tri-City filed four section 527.8 petitions seeking to
enjoin Dr. Young from having any further contact with four specified employees,
alleging that Dr. Young had a long history of disruptive and intimidating behavior and
recently Dr. Young's "harassing, violent, and erratic behavior" had escalated, particularly
at Tri-City's monthly Board meetings. The four employees were: (1) Matthew Soskins,
2 Tri-City's in-house counsel; (2) Larry Anderson, Tri-City's chief executive officer (CEO)
and Board member; (3) George Coulter, a Board member; and (4) Jami Piearson, Tri-
City's director of regulatory compliance and quality.
Tri-City sought the protective orders because the "employees feel threatened and
frightened by Dr. Young." In support, Tri-City submitted lengthy declarations from each
of the four employees detailing incidents in which Dr. Young engaged in erratic and
threatening behavior. Tri-City also submitted the declarations of two security officers
who witnessed some of the incidents. After reviewing the petitions and supporting
declarations, the court granted temporary restraining orders.
The court thereafter held a two-day evidentiary hearing regarding Tri-City's
request for permanent (three-year) restraining orders. At the hearing, Tri-City presented
testimony of the four employees for whom Tri-City sought protection and Tri-City's
security director (Craig Lawyer), who testified as a percipient and expert witness.
Dr. Young testified on his own behalf, but did not call any other witnesses and did not
present any documentary evidence.
The following summarizes the evidence presented at the section 527.8 hearing.
Under well-settled appellate rules, we summarize the relevant evidence in the light most
favorable to the prevailing party and assume all credibility disputes were resolved in Tri-
City's favor. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444 (USS-
Posco).)
3 Dr. Young's Pre-2010 Actions
In 2004 or 2005, Dr Young frequently harassed hospital staff members by saying
things that were "derogatory," "intimidating," "bully-like," and "threatening." One of the
employees was extremely distraught "to the point where she was in tears."
In 2007, Piearson was the medical staff office director, whose responsibilities
included peer review issues. Shortly before Dr. Young's disciplinary proceedings began
that year, Dr. Young came to Piearson's office to review patient records. Dr. Young was
highly agitated and made loud humming noises. As he was leaving the area, Dr. Young
became "overtly threatening," and said words to the effect that he was going "to take out
or take down the medical staff" and that "he knew things about [Piearson] that he bet
[she] wish[ed] he didn't."
During the peer review hearings, Dr. Young would "very frequently yell at people,
storm out of the room, [and] threaten people." The hearing officer had to instruct
Dr. Young "to stop making racial slurs and swearing." At one point during the hearings,
Dr. Young said he knew where Piearson parked and that she "needed to be careful."
After this remark, the hearing officer stopped the proceedings and requested security
guards to come into the hearing. Dr. Young also later told Piearson, "I know where you
live."
Piearson interpreted these comments as threats and became highly concerned for
her safety and her staff was "frightened and very fearful." In response to these concerns,
Tri-City installed locks, panic buttons, and surveillance cameras in the medical staff
office. Tri-City also gave Piearson a more secure parking space.
4 When Dr. Young saw the new security measures, he asked Lawyer about them.
Lawyer told Dr. Young the measures were taken because of him. Dr. Young responded:
"Well, maybe I can just take you outside and kick your ass." Lawyer did not believe this
was "a jovial comment."
In January 2009, Tri-City hired Anderson as CEO. Shortly after, Anderson was
told by the medical chief of staff that "his [the chief of staff's] life had been threatened
directly by Dr. Young."2 Piearson also told Anderson about similar threats from Dr.
Young.
Dr. Young's Conduct at 2010 Board Meetings
Each of the four protected employees regularly attend Tri-City's monthly Board
meetings held at the Hospital. Anderson and Coulter are Board members; Soskins is Tri-
City's in-house counsel; and Piearson is required to attend many Board meetings to
answer questions. The meetings frequently last between three and six hours.
Dr. Young had a long history of engaging in frequent outbursts during Board
meetings, saying things such as "that's bullshit" or "no" and would also grunt, try to speak
out of turn, and intimidate. Additionally, Dr. Young appeared to be drunk at many
meetings. He smelled of alcohol; his speech was "a bit slurred"; and "his balance was a
bit off." Dr. Young could not sit still. He would get up, move around, fidget, and change
2 Although this evidence was hearsay, a court has the discretion to consider hearsay evidence in a section 527.8 proceeding. (Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 558.) 5 seats. Dr. Young would also "rant," claiming conspiracy theories regarding the
revocation of his privileges.
At the August 2010 board meeting, there was a confrontation between Dr. Young
and CEO Anderson and Board member Coulter. Dr. Young acted in a verbally and
physically threatening manner towards Anderson and Coulter, and security director
Lawyer was concerned for the physical safety of Anderson and Coulter. Lawyer and
several other security officers intervened to protect Anderson and Coulter, and then
escorted Dr. Young out of the meeting. As he was being escorted out, Dr. Young said to
Anderson words to the effect of " 'maybe I need to bring a gun or plant a gun here to get
some respect.' "
At the next Board meeting in September 2010, Dr. Young approached in-house
counsel Soskins, tapped him on the shoulder, and said he knew Soskins because he had
worked with the "Coppo" law firm (DiCaro, Coppo & Popcke) that had represented Tri-
City in Dr. Young's mandate action. Although Soskins had previously worked for this
law firm, Soskins did not respond directly because he was afraid for his personal safety
based on Dr. Young's prior behavior at Board meetings. Soskins told Dr. Young he did
not want to interact with him, and asked him to "[c]ease and desist." However, during a
break, Dr. Young followed Soskins into the restroom, and began talking loudly to
Soskins and blocked Soskins's path to the sink and to the exit. Soskins was very
concerned for his safety because of Dr. Young's history of erratic behavior and the fact
that there appeared to be "a crazy, drunk person who is blocking me from leaving and
saying things fairly loudly to me." Later during the Board meeting, Dr. Young told
6 Lawyer that Soskins "looks like a skinhead Nazi." At the end of the meeting, Lawyer
"escorted [Dr. Young] off the property."
At the next Board meeting in early November 2010, Dr. Young again approached
Soskins, touched his arm and began "berating" him. Dr. Young told Soskins that "he was
going to get" him and called Soskins a " 'crypto-Nazi skinhead, bullshit artist, full of shit,
fucking Nazi, fascist.' " Soskins responded by telling Dr. Young not to touch him again
and repeatedly stated "[c]ease and desist." Soskins was very scared and was afraid that
Dr. Young was going to attack him. Dr. Young continued to swear and call him names
until Soskins got Lawyer's attention. When Lawyer approached, Dr. Young walked
away. Thereafter, during a break, Dr. Young moved his chair back a few feet, and glared
at Soskins for the next hour.
Security Director's Testimony
Lawyer testified at the section 527.8 hearing as a percipient witness and a security
expert. Lawyer served as a security officer for the Hospital for about 10 years, and
before that had been a law enforcement officer with the Los Angeles Police Department
for about 20 years. Lawyer regularly attended Board meetings and also knew Dr. Young
when he worked as a physician in the Hospital.
Lawyer testified that Dr. Young engaged in 'highly aggressive" behavior at Board
meetings and that Dr. Young had substantial "impulse-control" problems. Lawyer said
Dr. Young would repeatedly make inappropriate comments concerning safety issues. For
example, Dr. Young would regularly ask Lawyer: "Are you going to search me tonight?"
He would also frequently bring a bag with him and make comments like "I could have a
7 knife in there." At one Board meeting, Dr. Young told Lawyer, "I could have a KA-BAR
knife," which Lawyer said was a "combat" or "fighting" knife used by Marines.
Lawyer did not interpret these comments as jokes. Lawyer indicated that the
comments raised concerns about whether Dr. Young was attempting to understand the
search procedures in the event Dr. Young decided to bring a weapon into the Hospital.
After Dr. Young's privileges were revoked, Lawyer saw a substantial change in
Dr. Young's behavior. Dr. Young previously came to Board meetings professionally
dressed. Now, he looked "disheveled." Based on the "downward trend" in Dr. Young's
personality and appearance and the escalation of his aggressive behavior, Lawyer
considered Dr. Young a potential "security risk." Lawyer explained that Dr. Young's
actions and decline in his personal appearance were indicative of a "cycle of violence" as
it relates to "workplace violence issue[s]." Based on his experience and observations,
Lawyer said that Dr. Young's behavior appeared to be progressive and could potentially
lead to aggression and violence.
Lawyer opined that Dr. Young presents a safety concern for the four Tri-City
employees seeking protection and that a restraining order is "absolutely" necessary to
protect those employees. Lawyer said he was familiar with the recent shooting at a
Florida school board meeting and was concerned the same thing would happen at a Tri-
City Board meeting.
8 Other Tri-City Evidence
At the section 527.8 hearing, each of the employees for whom Tri-City was
seeking a protective order testified they were fearful of Dr. Young and concerned he
would commit violent acts against them.
Anderson said he is "very much" concerned for his own safety and that "in most
every encounter that you have with Dr. Young, he attempts to intimidate you."
Dr. Young would "invade your space," meaning that he would "get closer to you than a
normal person would," and would sometimes raise his voice. Anderson repeatedly told
Dr. Young to back off, but Dr. Young would not comply with these requests.
Coulter similarly testified that he feared for his safety and was concerned that
Dr. Young might act out violently toward him in future meetings. Coulter said it is "not
possible to walk past Dr. Young without him making some derogatory remarks." Coulter
testified that he felt "harassed" and "threatened" by Dr. Young's conduct.
Soskins testified that based on Dr. Young's conduct and statements, he was in
substantial fear for his personal safety, and stated: "I'm concerned any time I'm near him.
I'm concerned about him coming to work and shooting the place up. I'm concerned about
him coming to my office, my home . . . I just don't want to interact with him."
Piearson also testified that she was concerned for her safety when she was
required to attend Board meetings, and was concerned that Dr. Young would follow her
home after the meetings.
The court also reviewed the declaration of Richard Crooks, a security officer
responsible for maintaining a secure environment in the Board meeting room. Crooks
9 has 30 years experience in public and private law enforcement and is a former detective
with the Oceanside Police Department. Crooks stated that during the eight months of Dr.
Young's disciplinary proceedings, Dr. Young engaged in increasingly erratic and
outlandish behavior. Dr. Young would yell and scream during and after the proceedings.
Crooks also said Dr. Young's conduct at the Board meetings was "very disruptive" and
"explosive." He further stated: "I have been profiling security threats in crowds for the
entirety of my 30-year career. As such, I have the expertise to easily assess and identify
individuals who pose security threats. Every time I see Dr. Young, red flags are
immediately raised. In my opinion, he is a security threat who compromises the safety of
the hospital board meetings. As a result of my knowledge of Dr. Young's past harassing
and threatening conduct toward board members and hospital staff, I am very concerned
Dr. Young will act out violently toward a board member, and especially a Tri-City
Medical Center staff member, without warning."
Dr. Young's Conduct at Section 527.8 Hearing
At the section 527.8 hearing, Dr. Young (who appeared in propria persona)
frequently failed to comply with the court's directions. Additionally, an incident occurred
during a recess that impacted the court's evaluation of the issues. Shortly after Anderson
finished his testimony, the court took a break. Coulter was standing outside waiting to
testify, and Coulter saw Dr. Young "look[] at [Anderson] and [Dr. Young] smacked
. . . his fist into his hand." When Coulter began his testimony, Tri-City's counsel asked
Coulter about this incident and asked him to demonstrate how "hard" Dr. Young
slammed his fist into his hand. Coulter complied. Although the record does not show the
10 precise nature of this action, it is clear from the court's remarks that Coulter's
demonstration of Dr. Young's action was accompanied by significant force.
Dr. Young's Defense
Dr. Young did not present any witnesses or documentary evidence, and instead
relied solely on his own testimony. He testified in narrative form for more than one hour.
The following summarizes the relevant portions of his testimony.
Dr. Young testified that the declarations filed by each of the four employees were
"almost completely false." Dr. Young said he had never hit anybody with his fists since
first grade and did not own a gun or a KA-BAR knife, though he said, "I know lots of
people who do," including members of his own family. He said that he is a good father
to four children and has been married for a lengthy time and does not drink alcohol.
With respect to the August 2010 incident involving Anderson and Coulter,
Dr. Young said the incident arose from his attempts to defend another Board member and
claimed that he was legally entitled to engage in the confrontational conduct. He said his
verbal dispute with Coulter lasted "no longer than maybe a minute and a half."
Dr. Young testified that Anderson is a "legal thug" who is unqualified for the CEO
position and that Anderson had made defamatory statements against him. Dr. Young said
he had only "two face-to-face contacts" with Anderson.
Dr. Young did not specifically deny making the various threatening statements to
Piearson, but claimed that Piearson "is involved up to her eyeballs in fraud." With regard
to his interaction with Soskins, Dr. Young denied any threatening behavior in the
restroom. He did, however, acknowledge continuing to confront Soskins after he was
11 asked to "[c]ease and desist" and telling him "the guys that you are working with are
crypto-Nazi skinheads."
Other than these brief explanations, Dr. Young devoted most of his testimony to
discussing the charges against him leading to the termination of his medical staff
privileges, and in challenging the grounds for those charges. Dr. Young acknowledged
that he can be "intimidating" and has engaged in "disruptive" behavior, but suggested his
conduct was appropriate because of the peer review proceedings and the fact that
"hospitals are political places."
Court's Conclusions and Orders
After considering the parties' evidence and argument, the court found a sufficient
basis to issue the three-year restraining orders. The court noted that although many of the
allegations were "dated," the evidence showed a "consistent pattern of over-the-top
behavior," by Dr. Young that created "real safety concern[s]" for the four employees.
The court emphasized the uncontroverted evidence that Dr. Young repeatedly discussed
weapons with the security officers and the "fist-pumping" incident during the hearing.
But the court recognized that Dr. Young had constitutional rights to participate at
public Board meetings and expressed concern that a blanket stay-away order would
violate these rights. The court thus asked the parties to provide supplemental briefing on
the manner in which the court could impose protective orders with reasonable limitations
"so [Dr. Young] could attend these meetings" held at the Hospital.
Tri-City submitted a memorandum recommending that the court provide Dr.
Young the opportunity to participate in the Board meetings "via speaker phone," which
12 would allow him to hear the proceedings and speak during the public comment period
after emailing a request. Tri-City asserted that under these procedures, "Dr. Young can
follow the [Board] proceedings in real time and participate as desired." Tri-City said it
"has this technology already in place and therefore this solution would be simple to
implement." Tri-City claimed the restraining orders could not be effectively enforced if
Dr. Young personally attends Board meetings because of the relatively small size of the
Board meeting room, the length of the meetings, and the various entrance and exit times
of the affected employees and Dr. Young.
Dr. Young's supplemental briefing consisted primarily of his arguments as to why
the court should not grant Tri-City's requested protective orders. He also urged the court
to allow him to personally attend Board meetings after security officers check him for
weapons, and "smell his breath and make him walk a line."
The court's final order stated in relevant part:
"[Dr. Young] has the right to appropriately participate at [Tri-City's] public [Board] meetings . . . and had done so on a regular and consistent basis. [¶] However, [this court has granted a restraining order] . . . based upon [Dr. Young's] conduct toward each of the [four employees]. Said conduct included, but was not limited to, personal touching, stalking around the hearing room, confrontations in the restrooms, and discussions as having/obtaining weapons. This conduct generally resulted in the calling of hospital security and [Dr. Young] being escorted off the hospital premises.
"Additionally, in issuing the orders, the court had taken into consideration [Dr. Young's] conduct during the hearing which was concerning. Said conduct included, but was not limited to, his difficulty in complying with the court's instructions and guidance.
"[Tri-City has] . . . provided credible evidence as to the escalation of [Dr. Young's] conduct during these meetings as well as his 'fist
13 pounding' exhibited to [the employees] while exiting the courtroom during one of the breaks.
"Based on the above, it is not appropriate for [Dr. Young] to be personally present at Tri-City Hospital during the Board . . . meetings.
"[Tri-City's] suggestion as to the utilization of an electronic means including, but not limited to, the use of a speaker phone is well founded, appropriate, and would allow respondent to participate in the meetings on a real time basis. If he chooses to utilize this procedure, he must abide by the current procedures and rules and provide notice to the [Board] through email.
"[Dr. Young] shall not personally be present at the . . . Hospital except for an emergency basis . . . . He is to provide written notice to counsel through e-mail at least ten days prior to the [Board] meeting at which time counsel shall provide the dial-in number which respondent may utilize in his participation in the [Board] meeting. Counsel shall provide to [Dr. Young] within ten days of the date of this correspondence the e-mail address which [he] may utilize in providing the notice as set forth above. . . ."
The court then issued three-year restraining orders, which included personal
conduct orders, weapons restrictions, and orders requiring Dr. Young to stay 100 yards
from each of the four employees (and their homes) and from the Hospital (except for
emergency purposes). Each order also details specific procedures identifying the manner
in which Dr. Young may participate in Board meetings through a two-way speaker
phone, which includes his right to speak during the public comment period and listen to
each entire Board meeting.
14 DISCUSSION
I. Generally Applicable Legal Principles
Section 527.8 "authoriz[es] any employer to pursue . . . an injunction on behalf of
its employees to prevent threats or acts of violence by either another employee or third
person." (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333.) Section 527.8 was
"intended to enable employers to seek the same remedy for its employees as section
527.6 provides for natural persons." (Id. at pp. 333-334.) "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." (Id. at p. 334; accord Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1258 (Huntingdon
Life).)
Specifically, section 527.8 states: "Any employer, whose employee 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,
may seek a temporary restraining order and an injunction on behalf of the employee and,
at the discretion of the court, any number of other employees at the workplace . . . ."
(§ 527.8, subd. (a).) If there is good cause to grant the petition, the court must hold a
hearing and "receive any testimony that is relevant and may make an independent
inquiry." (§ 527.8, subd. (j); see 527.8, subd. (h).) "If the judge finds by clear and
convincing evidence that the [defendant] engaged in unlawful violence or made a
credible threat of violence, an injunction shall issue prohibiting further unlawful violence
15 or threats of violence." (§ 527.8, subd. (j).) A section 527.8 protective order must be
limited to a three-year period and cannot be issued if it "prohibit[s] speech or other
activities that are constitutionally protected . . . ." (§ 527.8, subds. (c), (k)(1).)
A trial court's "decision to grant a permanent injunction rests within its sound
discretion and will not be disturbed on appeal absent a showing of a clear abuse of
discretion." (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) When
the trial court resolves disputed factual issues, and draws inferences from the presented
facts, an appellate court reviews the factual findings under a substantial evidence
standard. (Ibid.; USS-Posco, supra, 111 Cal.App.4th at p. 444.)
II. Sufficiency of the Evidence Challenge
Dr. Young contends there was insufficient evidence to support the court's findings
that Tri-City met its burden to show he committed violence or made a credible threat of
violence supporting the issuance of a section 527.8 restraining order.
Before issuing a protective order under section 527.8, a court must find by clear
and convincing evidence the defendant has committed violence or has made a "credible
threat of violence." (§ 527.8, subd. (j).) A "[c]redible 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, and that serves no
legitimate purpose. (§ 527.8, subd. (b)(2).) " 'Course of conduct' is a pattern of conduct
composed of a series of acts over a period of time, however short, evidencing a continuity
of purpose, including following or stalking an employee to or from the place of work;
entering the workplace; following an employee during the hours of employment; making
16 telephone calls to an employee; or sending correspondence to an employee . . . ."
(§ 527.8, subd. (b)(1).)
In determining whether substantial evidence supports a section 527.8 finding, we
must "consider all of the evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference, and resolving conflicts in support of
the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630; see USS-
Posco, supra, 111 Cal.App.4th at p. 444.) "It is not our task to weigh conflicts and
disputes in the evidence; that is the province of the trier of fact. Our authority begins and
ends with a determination as to whether, on the entire record, there is any substantial
evidence, contradicted or uncontradicted, in support of the judgment." (Howard, supra,
72 Cal.App.4th at pp. 630-631.) If substantial evidence is present, "no matter how slight
it may appear in comparison with the contradictory evidence, the judgment must be
upheld. As a general rule, therefore, we will look only at the evidence and reasonable
inferences supporting the successful party, and disregard the contrary showing." (Id. at p.
631.)
Under these legal principles, we conclude the court's findings were supported.
The record contains evidence showing Dr. Young made numerous statements that can be
reasonably interpreted as a knowing or willful statement of threatened violent conduct,
and that he engaged in a pattern of conduct that can be reasonably interpreted as
reflecting an intent to communicate these threats to the employees.
The evidence showed that Dr. Young was extremely angry and upset about the
revocation of his medical privileges at the Hospital, and that he blamed various Tri-City
17 employees about this incident, including (in various ways) the four employees for whom
Tri-City was seeking protection. Additionally, Dr. Young displayed impulse control
problems, "explosive" behavior, and an increasing inability to contain his anger at recent
Board meetings. In particular he had made various statements about bringing weapons to
the Hospital and claimed to know people who own weapons.
With respect to Soskins, Dr. Young invaded his personal space and stared at
Soskins in the Board meeting room, followed him into the restroom, physically touched
Soskins, berated him, and told him "he was going to get him." Soskins's only prior
contact with Dr. Young was that Soskins was a former attorney for the law firm that
represented Tri-City in Dr. Young's mandate action. Based on Dr. Young's conduct,
Soskins was extremely fearful of Dr. Young and was concerned about Young committing
a violent act against him.
With respect to Piearson, Dr. Young had a long history of harassing conduct and
had made comments suggesting that he knew where Piearson lived, where she parked,
and the color of her car. Piearson was required to attend Board meetings that were also
attended by Dr. Young and expressed substantial concern for her personal safety.
With respect to Anderson and Coulter, at an August 2010 board meeting,
Dr. Young acted in a threatening manner (both verbally and physically) towards both
Board members, and during the confrontation said something to the effect of "Maybe I'll
bring a gun." Both testified they were highly concerned for their physical safety when
Dr. Young was in proximity.
18 Security director Lawyer, who testified as an expert, said that he was substantially
concerned Dr. Young would act out in a violent way toward the four employees. He
opined that Dr. Young's actions fit within the paradigm of a perpetrator of workplace
violence, including Dr. Young's moving into people's safety zones, aggressive posturing,
verbal intimidation, hostility, impulse control issues, decline in personal appearance, and
repeated reference to weapons.
Additionally, the evidence at the hearing showed that Dr. Young was not willing
to follow directions or listen to authority, and that Dr. Young continued to display
uncontrolled anger, including forcefully hitting his fist into his hand when he passed
Anderson during a break.
Based on all of the evidence, the court found Dr. Young's course of conduct and
statements constituted threats of violence towards the four employees and these threats
placed the employees in reasonable fear of their safety. The court specifically noted that
Dr. Young presented "real safety concern issues," because of his repeated references to
knives and other weapons and emphasized the continued manifestations of Dr. Young's
inability to control his anger. Substantial evidence supported the court's findings.
In his appellate briefs, Dr. Young discusses facts supporting a conclusion that his
statements did not constitute threats of physical violence and instead he was merely
intending to communicate his disregard for the actions, ethics, morals, and honesty of the
various Hospital employees. For example, Dr. Young states that his "alleged rant" to
Soskins during a Board meeting was not a threat of physical violence and instead he was
merely telling Soskins "that he was a liar who was going to be caught in his lies."
19 However, the trial court rejected this interpretation of the facts, and concluded that Dr.
Young's statements and actions reflected credible threats of violence. In challenging this
conclusion, Dr. Young is essentially requesting that we reweigh the evidence and make
different inferences than did the trial court. Under well-settled appellate principles, we
have no authority to do so. (See Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660; In
re H. G. (2006) 146 Cal.App.4th 1, 13.) We cannot substitute our deductions for those of
the trial court if they are reasonable and supported by substantial evidence. (Ibid.) The
trial court's conclusions were reasonable and were supported by substantial evidence.
Relying on four decisions in which section 527.8 injunctions were upheld, Dr.
Young argues that his conduct did not arise to the level of violent conduct or threats of
violent conduct. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526; USS-Posco,
supra, 111 Cal.App.4th 436; Huntingdon Life, supra, 129 Cal.App.4th 1228; City of Palo
Alto v. Service Employees International Union (1999) 77 Cal.App.4th 327.) There is
nothing in any of those decisions suggesting the trial court erred in ordering the
injunctions against Dr. Young.
To the contrary, these decisions support the court's conclusions in this case. For
example, in USS-Posco, the appellant argued that he was well known as a " 'trash talker' "
and should not be taken seriously, especially because he had no history of violent
conduct. (USS-Posco, supra, 11 Cal.App.4th at pp. 441, 444-445.) The court rejected
this argument based on evidence showing the appellant repeatedly threatened to bring a
gun into work and shoot people. (Id. at pp. 444-445.) Although Dr. Young did not
directly threaten to shoot anyone, he did repeatedly discuss bringing weapons into the
20 Hospital and there was evidence that he had previously threatened the lives of various
Hospital officials.
Dr. Young contends the court erred in relying on the pre-2010 events. He asserts
that his prior statements and conduct were insufficient to establish a current threat
because they were "isolated remarks" and "remote in time." However, the court
specifically recognized that some of the events were "dated," but found they showed a
"consistent pattern" of inappropriate threatening behavior that had escalated during the
past year. The court's conclusion was reasonable. The pre-2010 events were relevant to
explain Dr. Young's current conduct and the fact that he had a long-standing resentment
and inability to control his anger against Hospital officials. (See Huntingdon Life, supra,
129 Cal.App.4th at p. 1250 [" 'context is critical in a true threats case and history can give
meaning to the medium' "].)
In a related argument Dr. Young contends the protective order regarding Piearson
was unwarranted because there was no specific evidence that Dr. Young had contact with
Piearson after his privileges were terminated in 2009. However, Piearson testified that in
her current position she was required to attend many Board meetings and she remained
frightened of Dr. Young based on his increasingly aggressive conduct at the meetings and
his prior statements that he knew where she parked and lived. The court—which had the
full opportunity to observe Dr. Young's demeanor and consider Dr. Young's statements
under the totality of the circumstances—found Dr. Young's statements continued to
reflect a current threat to Piearson. An employer subjected to generalized threats of
workplace violence may obtain relief under section 527.8 on behalf of an employee who
21 is a logical target of the threats. (USS-Posco, supra, 111 Cal.App.4th at p. 436.) The
court did not abuse its discretion in concluding Piearson remained a potentially targeted
employee.
Dr. Young also devotes large portions of his brief to discussing the lack of
evidence showing he had actually committed violent acts, i.e., an assault, battery, or
stalking. (§ 527.8, subd. (b)(7).) However, section 527.8 permits a court to issue a
restraining order based on evidence the defendant "engaged in unlawful violence or made
a credible threat of violence." (§ 527.8, subd. (j), italics added.) Because there was
substantial evidence to support the court's finding that Dr. Young made credible threats
of violence, we need not address the issue whether Dr. Young had in fact engaged in
unlawful violence within the meaning of section 527.8, subdivision (b)(7).
Dr. Young also argues there was no evidence that he made a credible threat "with
the intent to place [a] person in reasonable fear for his or her safety, or the safety of his or
her immediate family" or that he had the "apparent ability to carry out the threat."
However, as this court has stated, " '[i]t is not necessary that the defendant intend to, or
be able to carry out his threat; the only intent requirement for a true threat is that the
defendant intentionally or knowingly communicate the threat.' " (Huntingdon Life,
supra, 129 Cal.App.4th at p. 1256 [upholding denial of anti-SLAPP motion because
plaintiff had a probability of prevailing on lawsuit seeking injunction under sections
527.6 and 527.8]; accord City of San Jose v. Garbett, supra, 190 Cal.App.4th at p. 539
["[T]he Legislature unequivocally dispensed with the requirement [in section 527.8] that
the defendant intend to cause the person to believe that he or she had been threatened
22 with death or serious injury. It currently requires only a statement made knowingly and
willfully, which would place a reasonable person in fear for his or her safety."].)
We also reject Dr. Young's argument that the court inappropriately based its
factual conclusions on Dr. Young's failure to comply with the court's procedural rules
and/or the "fist-pumping" incident. This evidence was relevant to the issue of whether
Dr. Young was willing and able to control his emotions in structured situations.
Moreover, the record shows the court did not rely solely on these facts to reach its
conclusions and instead the court considered all of the testimony and documentary
evidence before issuing the protective orders.
Substantial evidence supported the court's factual findings that Dr. Young made
credible threats of violence and thus the four employees were in need of protection.
III. Court Applied Correct Standards
Dr. Young next contends the court erred by applying incorrect legal standards.
Specifically, Dr. Young argues the court erred because it failed to apply the "clear and
convincing" proof standard and issued the injunctions solely to "stop harassment" rather
than to prevent "violence." These arguments are without merit.
With respect to the "clear and convincing" proof standard, the court did not
expressly state these words when explaining its findings, but the record shows the court
was aware Tri-City was seeking a protective order under section 527.8, which expressly
requires "clear and convincing" proof of violence or threats of violence. (§ 527.8, subd.
(j).) Absent any indication to the contrary, we are required to presume that a judicial
officer has " ' "regularly performed" ' " its duties and " 'applied the correct standard of
23 proof.' " (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 929; see
Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781, 1792.)
Dr. Young argues that the court did not apply the correct proof burden because in
its minute order the court said that "credible evidence" established Dr. Young's
"escalation" of improper conduct during Board meetings. This statement does not
reasonably reflect that the court misunderstood or misapplied the proof burden. A
reference to the credibility of evidence concerns whether the court found the evidence
believable or trustworthy, not the particular proof burden that it employed to reach its
determinations.
For similar reasons, we reject Dr. Young's argument that the court erroneously
believed section 527.8 protective orders could be issued based solely on harassing
conduct without evidence of violence or threatened violence. The central focus of the
section 527.8 hearing was on the issue whether Dr. Young presented a threat of physical
violence to the four employees. Each of the four employees testified about implied or
express threats of violence, and each of these employees expressed substantial concern
for their physical safety when around Dr. Young. Consistent with this evidence, at the
outset of his closing argument, Tri-City's counsel stated that "either unlawful violence or
a credible threat of violence" is required for the court to grant the petition and discussed
the meaning of a "credible threat of violence" and "a course of conduct." In reaching its
conclusions, the court stated it had "real safety concern issues" with Dr. Young's conduct,
including his repeated references to weapons and the repeated need for security to escort
him off the premises. In its final order, the court also highlighted the evidence showing
24 that Dr. Young engaged in physically threatening conduct involving "personal touching,
stalking around the hearing room, confrontations in the restrooms, and discussions as
having/obtaining weapons." The court also repeatedly referred to Dr. Young's "fist
pounding" in explaining its decision to issue the protective order.
Reviewing the entire record, we are satisfied the court understood that Tri-City
was required to prove Dr. Young engaged in unlawful violence or made a credible threat
of violence, and that mere harassment without violence or a threat of violence was
insufficient to satisfy this standard.
IV. Dr. Young's Contention that Tri-City Sought Injunctions for Improper Purposes
Dr. Young contends the protective orders must be vacated because Tri-City sought
the injunctions merely to "stifle" his free speech rights. He argues, for example, that
"what [Tri-City] characterized as [his] violent behavior was actually his advocacy in
favor of [another Board member]." However, the court rejected these arguments, and
found Dr. Young's statements and conduct constituted credible threats of violence, and
did not reflect merely Dr. Young's attempts to fairly advocate for his viewpoints. As
discussed above, the record supports the court's conclusion.
Dr. Young alternatively argues the injunction was improper because Tri-City
sought the injunction merely to get "a leg up in Dr. Young's contemporaneous mandate
action against it." In support, he discusses actions taken by Tri-City in the mandate
proceedings. However, the court rejected Dr. Young's arguments that Tri-City brought
the section 527.8 petitions merely to influence the court's decision in the mandate action.
The court had ample evidentiary grounds for reaching this conclusion. The court also
25 cautioned Tri-City not to use its findings in proving its claims in the mandate
proceedings. Even assuming Tri-City failed to comply with this admonition, this action
does not show the court erred in issuing the section 527.8 restraining orders.
V. First Amendment Rights
Dr. Young also contends the court's protective orders violated his First
Amendment rights because he was not permitted to be personally present at public Board
meetings.
Section 527.8 states that a court is not "permit[ted] . . . to issue [an] injunction
prohibiting speech or other activities that are constitutionally protected . . . ." (§ 527.8,
subd. (c).) However, "[t]he right to free speech is not absolute or unlimited." (City of
San Jose v. Garbett, supra, 190 Cal.App.4th at p. 536.) " '[O]nce 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.' " (Id. at p. 537.) The courts have thus held that "if the elements of section 527.8
are met by the expression of a credible threat of violence toward an employee, then that
speech is not constitutionally protected and an injunction is appropriate." (Ibid.)
Under the court's order, Dr. Young retains the full opportunity to speak to the
Board under the established public comment period and to listen to entire Board meetings
through a telephone system. Although Dr. Young's right to communicate through
gestures or body language, assert comments outside the established comment period,
and/or see the facial expressions of the Board members have been limited, these
limitations are fully justified by the need to protect the four employees from Dr. Young's
26 credible threats of violence. In light of his conduct, the fact that Dr. Young cannot attend
those meetings in person does not establish a constitutional violation.
DISPOSITION
Affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCDONALD, J.