Filed 6/25/20 City & County of S.F. v. Treboux CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CITY AND COUNTY OF SAN FRANCISCO,

Plaintiff and Respondent,

v.

ANN TREBOUX,

Defendant and Appellant.

A156666

(City & County of San Francisco

Super. Ct. No. CCH-18-580858)

Ann Treboux appeals a workplace violence restraining order obtained by the City and County of San Francisco (the City) on behalf of Anne Trickey, an employee of the San Francisco Arts Commission (Arts Commission). We affirm.

I

Trickey oversees the Arts Commission’s Street Artist Program, which licenses street artists to do business in San Francisco. Treboux is a street artist who was once licensed by the Arts Commission, but at the time of the incident in question here did not hold a license.

On August 24, 2018, the City filed a verified petition under Code of Civil Procedure section 527.8 seeking personal conduct and stay-away orders to protect Trickey from Treboux based on allegations of, among other things, battery during a street encounter between these two individuals and a history of harassment by Treboux that led Trickey to be fearful of future violence by Treboux against her.

As detailed in a declaration from Trickey attached to the petition, the allegation of battery was based on an incident that occurred near the Embarcadero Plaza on Market Street between 4th and 5th Streets, which is a location where licensed street artists maintain vendors’ tables. Trickey is responsible for visiting that area from time to time and interacting with street artists.

According to her declaration, Trickey saw Treboux engaged in the unlicensed sale of another artist’s work on June 15, 2018, so she began filming Treboux using a cell phone camera. That led to an altercation in which Treboux shoved Trickey twice. The declaration also details a history of rude and harassing conduct by Treboux directed toward Trickey and other Arts Commission staff members going back several years. According to Trickey, Treboux has a history of applying unsuccessfully for a street artist’s license based on applications in which she uses false identities.

The court held a hearing on the City’s petition over the course of two court days, October 17, 2018, and October 18, 2018. Prior to the hearing, Treboux submitted an extensive written response to the City’s petition, including what appears to be a trial brief and numerous exhibits. Both Trickey and Treboux testified at the hearing, and in support of its case the City presented a declaration from Alyssa Ventre, another Arts Commission staff employee, as well as the video of the alleged altercation between Treboux and Trickey.

Treboux attended the first day of the hearing, but appeared and then left before the proceeding began on the second day, remarking to the court as she was leaving, “I can’t do this. I can’t listen to this testimony. I’m leaving.” At the conclusion of the hearing, the court ruled from the bench, granting the requested relief under section 527.8 and finding as follows:

“The court finds apparently there’s a history between Ms. Anne Trickey as an employee for the San Francisco Art Commission, and Ms. Treboux, in terms of maybe trying to sell artwork at San Francisco, but there’s a history. Ms. Treboux had numerous negative encounters with Ms. Anne Trickey, based on Ms. Anne Trickey’s testimony. [¶] So those negative encounters would actually give credence to Ms. Treboux committing a battery on Ms. Trickey on two occasions that day. [¶] Based on the conduct of Ms. Treboux over a four-year period, that resulted in the latest physical conduct, the court will grant the request to have a permanent Restraining Order against Ms. Treboux, that she is not to come within 50 yards of Ms. Anne Trickey, that she is not to harass, intimidate, molest, attack, strike, threaten, assault, sexually or otherwise, hit and abuse, destroy personal property of, or disturb the peace of Ms. Anne Trickey.”

On October 23, 2018, the court entered an order on Form WV-130 memorializing its earlier bench ruling and setting forth explicit no-contact and stay-away orders for a term of three years, subject to an exception for public hearings during which Treboux may come no closer than five yards to Trickey, with a fifty-yard prohibition at all other times.

Treboux, representing herself in propria persona, as she did in the trial court, appealed.

II

Section 527.8 authorizes the City to request 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.” If the court 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.) In making the determination, the court “shall receive any testimony that is relevant and may make an independent inquiry.” (Ibid.) The court may rely on hearsay, and on testimony given by declaration. (Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557.)

We review injunctions issued under section 527.8 for abuse of discretion. In doing so we examine the record to determine whether the necessary factual findings are supported by substantial evidence. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.) The pertinent inquiry is whether there is evidence of reasonable, credible, and solid value. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499.) We resolve all factual conflicts and questions of credibility in favor of the prevailing party and draw all reasonable inferences in favor of the trial court’s findings. (Ibid.)

In the trial court, Treboux claimed she does not know Trickey. She reiterates that point on appeal. Without specific and proper citation in her brief to evidence of record, Treboux also makes a variety of arguments about matters unrelated to the alleged June 15, 2018 battery in an apparent effort to call into question Trickey’s credibility and the motives and conduct of counsel for the City. Many of these arguments are supported by nothing more than statements in Treboux’s briefs. We reject all of them as unsupported by the record and in any event irrelevant to whether substantial evidence supports the court’s findings and injunction.

As accurately summarized by the City, Trickey’s testimony, both live and by declaration, and a video recording taken contemporaneously with the altercation in question, show that Treboux attacked Trickey and pushed her twice on June 15, 2018. The City is correct that this conduct by Treboux not only constitutes “battery” (Pen. Cod. § 242) but also “assault” (Pen. Cod. § 240) and that in either case may be considered an act of violence. To protect employees under section 527.8, the City need not wait until the perpetrator of assault or battery inflicts physical injury on a victim.

As further accurately summarized by the City, Trickey’s testimony, live and by declaration, and that of Alyssa Ventre by declaration, show Treboux’s “years-long obsessive, deceptive, manipulative and harassing behavior toward [Arts Commission] staff, including Trickey, suffered in their . . . frequent interactions with” Treboux, whose behavior “did not just annoy staff, it scared them.” (City’s Responding Brief at p. 16.) In her declaration, Trickey also states her belief that the escalation of this pattern of activity to a physical attack placed her in fear that Treboux might attack her again and physically harm her.

Treboux focuses on the requirement in section 527.8 that the complainant prove the victim “ ‘suffered unlawful violence or a credible threight [sic] of violence.’ ” She claims the record is lacking substantial evidence to establish that element and argues that “[n]ot once did the court refer to the credible threight [sic] of violence required by section 527.8.” Express findings are not required. On appeal we presume the correctness of a judgment and imply the necessary findings to support it, reviewing the record for substantial evidence to support these implied findings. Whether they are proceeding pro se or with the assistance of counsel, challengers on appeal bear the burden of demonstrating a judgment is legally or factually unsupported. Treboux has not borne that burden.

This case presents a classic credibility contest between two individuals with a history of ill feelings toward one another who were involved in a physical altercation. The trial court heard the evidence and chose to believe Trickey over Treboux. We decline to second-guess its decision to do so. Having examined the record, we conclude that the court’s findings are supported by substantial evidence.

In addition to arguments directed to the adequacy of the proof, Treboux contends the court had no personal jurisdiction over her because she does not do business here and resides in New York. She also contends her due process rights were violated because she had no opportunity to defend. And she contends the court’s restraining order violates her First Amendment rights. We reject all of these arguments. She not only answered the City’s petition, thereby making a general appearance, but appeared and defended at the hearing, until she absented herself. And the restraining order is directed to Treboux’s conduct, not her speech.

In a final argument, Treboux complains of delay, contending that the alleged battery occurred on June 15, 2018, and yet the City waited many weeks before filing its petition while Trickey was out of the country in Europe. Treboux forfeited this argument by failing to raise any issue of delay below. And even if the issue were cognizable on appeal, it was for the trial court in its sound discretion to determine how, if at all, the passage of time bore on its decision to enter a restraining order. The court was within its discretion to issue such an order here.

DISPOSITION

Affirmed. The parties shall bear their own costs on appeal.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

TUCHER, J.

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