Filed 12/18/19 Covia Communities v. McInerney CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

COVIA COMMUNITIES,

Plaintiff and Respondent,

v.

JOSEPH MCINERNEY,

Defendant and Appellant.

H044941

(Santa Clara County

Super. Ct. No. 17CH007456)

Respondent Covia Communities (Covia) contracts to provide services at Town Park Towers, an apartment complex where appellant Joseph McInerney lived until he was evicted in 2013. In 2014, the owner of Town Park Towers, Northern California Presbyterian Homes and Services (Presbyterian), obtained a three-year workplace violence restraining order against McInerney after he stalked and harassed S.V. S.V. was an employee who worked at Town Park Towers, first for Presbyterian, and then for Covia. Just over a month after the first restraining order expired, Covia sought a second restraining order against McInerney, alleging he had resumed stalking and harassing S.V. After conducting a hearing on the matter, the trial court granted Covia’s petition and issued a second, three year restraining order against McInerney. McInerney, proceeding in propria persona, has appealed. For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
II.
A. First Restraining Order
B.
In February 2014, pursuant to Code of Civil Procedure section 527.8, the trial court issued a three-year workplace violence restraining order (the first restraining order) against McInerney. McInerney appealed the issuance of the first restraining order. In an unpublished opinion, this court recited the background of that order as follows:

“On January 10, 2014, Presbyterian filed a petition for a workplace violence restraining order (§ 527.8) against McInerney. The petition alleged that [S.V.], a security guard at the Town Park Towers apartment complex, was in need of protection from McInerney because he was stalking and harassing her.

“Attached to the petition was a signed declaration from [S.V.] detailing the alleged harassment. [S.V.] started working at Town Park Towers in 2009. Shortly after she began working at the apartment complex, McInerney started engaging in substantial unwelcome conduct towards her. At the time, McInerney was a tenant at the complex. [S.V.] said that McInerney followed her, made suggestive comments to her, and took photos of her with his camera without her permission. McInerney would sometimes wait in the parking lot before she began her shift and would follow her into the offices. Town Park Towers began the process of evicting McInerney from his apartment in 2012, and [S.V.] said that McInerney became less aggressive toward her after the eviction process began. [S.V.], however, recounted one incident where McInerney appeared at Town Park Towers, informed [S.V.] that he was moving out, and then proceeded to take pictures of her even after [S.V.] told him to stop. [S.V.] called the police and an officer took McInerney away. [S.V.] was unaware of any criminal proceedings that may have come from the incident. After he was evicted, McInerney came to the apartment complex twice and stared at [S.V.] through the window for approximately 10 minutes until another employee asked him to leave. Another time, McInerney came by the apartment complex asking for [S.V.].

“After Presbyterian filed its initial petition, the trial court granted its request for a temporary restraining order against McInerney and a hearing was scheduled. McInerney filed several oppositions to Presbyterian’s section 527.8 petition.

“The hearing on the petition was held on February 18, 2014. [S.V.] was present at the hearing and testified that McInerney had been following her, staring at her, and making inappropriate comments to her since she began working at Town Park Towers. [S.V.] stated that McInerney’s behavior had continued for about four years. In response to [S.V.]’s testimony, McInerney made a few arguments to the trial court, asserting that he did not believe that [S.V.]’s declaration was truthful.

“Afterwards, the trial court granted Presbyterian’s petition for a workplace violence restraining order and issued an injunction prohibiting McInerney from going within 50 yards of Town Park Towers and [S.V.] for three years.” (Northern California Presbyterian Homes and Services v. McInerney (May 12, 2016, H041335) [nonpub. opn.] [at p.1].)

The first restraining order expired on its own terms on February 18, 2017.

C. Second Restraining Order
D.
The trial court issued a second, three-year restraining order against McInerney on April 18, 2017 (the second restraining order). Covia (formerly known as Episcopal Senior Communities, or ESC) filed the petition for workplace violence restraining orders against McInerney on March 28, 2017, again listing S.V. as the employee in need of protection. After the first restraining order was issued, Presbyterian contracted with Covia to provide management services at another apartment complex, Shires Memorial; S.V. worked for Covia at Shires Memorial, but frequently attended meetings and trainings at Town Park Towers, the location of her supervisor, K.Y., a Presbyterian employee. Covia submitted declarations from S.V. and K.Y. with the petition, as well as a declaration from J.M., a maintenance mechanic at Town Park Towers.

J.M. declared that on February 24, 2017, a security guard notified J.M. that a man was at the front reception desk of Town Park Towers, asking about a Presbyterian employee. When J.M. approached the man, who he later learned was McInerney, McInerney asked for information about S.V., inquiring whether she still worked at Town Park Towers, and if not, where she was working now. J.M. described McInerney as “really persistent,” “asking for information on [S.V.] and her whereabouts for ten minutes.” J.M. then asked McInerney to leave, indicating he could not provide information about the staff.

K.Y. declared that McInerney returned to Town Park Towers on March 13, 2017; staff notified K.Y. that McInerney was in the building, but he exited before K.Y. could speak to him. K.Y. caught up to McInerney in the parking lot, asking McInerney why he came to the building; McInerney informed K.Y. he wanted to see S.V. At one point during their conversation, McInerney told K.Y. “words to the effect that since [Presbyterian] does not have a restraining order anymore, he can walk into [the] building any time wants, and he suggested that [K.Y.] call the police to kick him out.”

S.V. did not have any direct contact with McInerney between the expiration of the first restraining order and the petition for the second. However, in addition to the events described by J.M. and K.Y., S.V. learned that McInerney “visited a house at an address [she] had only used as a mailing address to try to track [her] down”; McInerney did so on March 13, 2017, the same day K.Y. spoke with him in the Town Park Towers parking lot. S.V. does not know how McInerney found that address, as she had never lived there and only used it as a mailing address. According to S.V., McInerney spoke to one of the “young residents” who lives at the house, asking whether S.V. lived there. When the resident indicated that S.V. did not live at the address, McInerney left a phone number where he could be reached.

In support of the petition for the second restraining order, S.V. indicated that McInerney’s conduct since the expiration of the first restraining order caused a recurrence of the fear and distress caused by the events that led to the issuance of the initial restraining order. S.V. described McInerney’s prior conduct as having caused her great stress; at the initial restraining order hearing she testified that she would often drive home crying, she would call in sick to work due to McInerney’s conduct, and she suffered from nightmares that something would happen if she did go to work. S.V. noted that both during his testimony at the hearing on the first restraining order, and in the pleadings he filed to appeal the first restraining order, McInerney made statements that further suggested he was obsessed with S.V. At the February 18, 2014 hearing, he gave the following testimony as to why he was taking pictures of S.V.: “I did that because she wouldn’t give me a picture of her own. I told her that if I lost contact with her, it would be very detrimental to me, and—because she has this magnetism. She could have been a movie star, and she’s better than anybody I’ve seen in a movie. [¶] I’m not talking about—I’m not suggesting that she become a movie star, but I’m saying that she has that magnetism, which I—I seldom run into people. I told her only about four other persons.” In an appellate brief filed when he challenged the first restraining order, McInerney described S.V. as a “noir femme fatalee [sic]. Unfortunately anyone caught in her web is likely to be strangled by sheer w exascerbation [sic] in trying to reach her. The fact of her magnetism is self-evident and respondent [McInerney] couldn’t break free of her even if he wanted which he doesn’t for obvious reasons.”

S.V. declared that McInerney’s prior behavior, coupled with the three incidents in February and March 2017, left her feeling threatened and afraid, causing her to “suffer serious emotional distress and mental suffering.” She believed that McInerney would continue to engage in the “stalking, hostile and intimidating conduct” towards her if the court did not again restrain him, which would cause S.V. to continue to live in fear and diminish the quality of her life.

The trial court issued a temporary restraining order against McInerney based on the allegations in the petition and supporting declarations. Covia personally served the temporary order, along with the petition and supporting declarations, on McInerney on April 6, 2017, giving him notice that the court would hold a hearing on the petition on April 18, 2017.

McInerney thereafter filed a demurrer to the petition, as well as a motion to strike the petition, each of which was set for hearing in May 2017. In support of the demurrer, respondent argued that: the petition was not verified or properly executed; the petition did not state facts sufficient to support a cause of action; the petition was premature and the court lacked jurisdiction to hear it; the events described in the petition pertained to Town Park Towers, not Covia/ESC; and S.V.’s signatures on two different pleadings did not match. In the motion to strike, McInerney additionally contended the petition was not “filed in conformity or drawn in conformity with the law,” as the events took place at the premises of S.V.’s former employer, Town Park Towers/ Presbyterian, and not her current employer, Covia/ ESC.

The trial court heard Covia’s petition for a workplace violence restraining order on April 18, 2017. At the outset, McInerney argued the trial court was required to conduct the hearing on his demurrer and motion to strike before hearing the petition. While the court indicated that neither a demurrer nor a motion to strike pertained to a petition for such a restraining order, it also confirmed it read both pleadings and would allow McInerney to raise any of the issues from his demurrer and motion to strike pleadings during the hearing. McInerney argued that the signatures S.V. provided on various pleadings did not match, that the petition and declarations were not properly verified or executed, that the court did not have jurisdiction to hear the petition because the events did not take place at S.V.’s present place of employment, that S.V.’s testimony was falsified or given under duress, and that the court could not restrain future contact. He again objected to the court conducting a hearing on the merits of the petition prior to the scheduled hearing on the motion to strike.

Covia’s attorney made an offer of proof regarding the information S.V. provided in her declaration; S.V., who was present at the hearing, confirmed that the signature on the declaration was hers, and that the information set forth in the declaration was true and correct, representing the testimony she would give if called to do so.

McInerney testified that he did go to S.V.’s “former employer . . . just after the end of the extension” and had asked K.Y. about S.V. K.Y. also appeared at the hearing, confirming that the statements he made in his declaration were true and correct; he then testified in conformance with his declaration.

McInerney had the opportunity to question both S.V. and K.Y. S.V. denied she was coerced by Covia or its attorney into making the statements in her declaration. McInerney questioned S.V.’s relationship with George Lucas; S.V. confirmed that she did not have a relationship with Lucas or receive any money from Lucas. McInerney asked K.Y. questions to confirm whether McInerney entered the building; K.Y. clarified that staff members told him McInerney was in the building.

The trial court found S.V. and K.Y. to be credible witnesses, accepting both their live testimony and the testimony in their declarations to be true and correct. The court found clear and convincing evidence of a course of conduct that caused S.V. to fear for her safety and the safety of her workplace; it also found McInerney’s actions served no legitimate purpose. The trial court granted the restraining order, protecting S.V. and the two buildings at which she worked, Shires Memorial and Town Park Towers, as well as S.V.’s home. McInerney filed a timely notice of appeal. (Cal. Rules of Court, rule 8.104(a).)

III. DISCUSSION
IV.
A. Defects in McInerney’s Brief
B.
Covia argues McInerney waived most if not all of his arguments by failing to cite appropriate legal authority and/or provide argument. “Where a point is merely asserted . . . without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.” (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved of on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) “An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

We acknowledge that McInerney is representing himself on appeal. However, he is not exempt from court rules. A party representing him or herself on appeal “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Like represented litigants, McInerney must follow the appropriate appellate procedures. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

While many of his arguments are perfunctory, and other claims are not comprehensible, McInerney’s opening brief does contain some legal analysis. We therefore address the merits of those claims. McInerney claims the petition should not have been granted because: (1) the court erred in hearing the petition before it heard his demurrer and motion to strike; (2) the petition for a restraining order was not verified and S.V.’s signature on the attached declaration was invalid; (3) Covia did not submit a memorandum of points and authorities with the petition; (4) the alleged harassment did not occur on Covia’s premises, such that the petition was premature and the trial court was without jurisdiction; (5) the trial court improperly considered evidence relating to the first restraining order, and there was insufficient evidence of events occurring after expiration of that order to support the second restraining order; (6) the scope of the second restraining order violates McInerney’s First Amendment rights as it precludes him from accessing the county law library; and, (7) there was an “obvious” and “deliberate miscarriage of justice” on the part of the judge. We will address these arguments in turn.

C. The Trial Court Did Not Err in Granting the Second Workplace Violence Restraining Order
D.
1. General Legal Principles
2.
“Section 527.8, the Workplace Violence Safety Act, enables an employer to seek an injunction to prevent violence or threatened violence against its employees.” (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 536.) In relevant part, section 527.8, subdivision (a) provides that “[a]ny 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 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.” Section 527.8, subdivision (j) provides that “[i]f the 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.”

Under the statute, “ ‘Unlawful violence’ ” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self defense or defense of others.” (§ 527.8, subd. (b)(7).) Penal Code section 646.9, subdivision (a) defines stalking in pertinent part as “[a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family . . . .”

“ ‘Credible 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 hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.” (§ 527.8, subd. (b)(1).)

In addition to the above, a petitioner “must establish by clear and convincing evidence . . . 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 Health v. Marin (1999) 72 Cal.App.4th 324, 335, fn. omitted (Scripps).)

In considering a petition under section 527.8, the trial court must “receive any testimony that is relevant . . . .” (§ 527.8, subd. (j).) “The plain language of this provision suggests that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an injunction to prevent workplace violence pursuant to section 527.8.” (Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557 (Kaiser).) Proceedings under section 527.8 are intended to parallel those for general civil harassment restraining orders under section 527.6, “which are procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment. [Citations.] Indeed, a proceeding for an injunction under section 527.6 (and, correspondingly, § 527.8), need not proceed as a ‘full-fledged evidentiary hearing with oral testimony from all sides.’ [Citation.] Rather, the hearing may be based on affidavits or declarations, which are themselves a form of hearsay evidence.” (Kaiser, supra, at p. 557.)

“On appeal, we generally review an injunction issued under section 527.8 to determine whether the necessary factual findings are supported by substantial evidence, resolving all factual conflicts in favor of the prevailing party, and drawing all reasonable inferences in support of the trial court’s findings. [Citation.] However, ‘[t]he question whether the order was authorized under the statute, as a matter of statutory interpretation, is reviewed de novo.’ [Citation.]” (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 944 (Severson).)

With these principles in mind, we turn to McInerney’s arguments.

3. McInerney’s Demurrer and Motion to Strike
4.
McInerney contends the trial court erred when it proceeded with the hearing on Covia’s workplace violence restraining order petition, as the scheduled hearing on McInerney’s demurrer to the petition and motion to strike the petition had not yet taken place. On appeal, McInerney does not cite any legal authority supporting his contention.

Neither procedure is applicable to a petition for a workplace violence restraining order under section 527.8. Under section 430.10, a party against whom a “complaint” has been filed can demur on one of several enumerated grounds, including lack of jurisdiction, if the ground for objection appears on the face of the complaint. (§§ 430.10, subd. (a), 430.30, subd. (a).) Under section 435, subdivision (b)(1), “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” Neither statute defines “pleadings.” However, sections 430.10 and 435 are located within Title 6 of the Code of Civil Procedure, entitled, “Of the Pleadings in Civil Actions.” Sections 420 and 422.10 within Title 6 provide the definition of pleadings. “The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.” (§ 420.) “The pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints.” (§ 422.10.) Petitions are not included in section 422.10.

A party seeking a workplace violence restraining order under section 527.8 does not file a complaint seeking judgment from the court; rather, the employer files a petition seeking injunctive relief. Section 527.8 does not explicitly authorize a responding party to file a demurrer to the petition or a motion to strike the petition for a workplace violence restraining order. Nor do the statutes governing demurrers (§ 430.10) or motions to strike (§ 435, subd. (a)(1)) include petitions in any definition of a complaint. In contrast, a special motion to strike under the anti-SLAPP law (§ 425.16), defines a “ ‘complaint’ ” to include a “ ‘cross-complaint’ ” and a “ ‘petition.’ ” (§ 425.16, subd. (h).) Cases have explicitly held that the anti-SLAPP motion to strike is available in a request for a civil harassment or workplace violence restraining order under sections 527.6 and 527.8 only because section 425.16, which describes the anti-SLAPP law, includes petitions in its definition of a complaint. (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 617, disapproved of on other grounds by City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420, fn. 10 [applying anti-SLAPP motion to § 527.8]; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 646 [applying anti-SLAPP motion to § 527.6].) As neither section 430.10 nor section 435 include petitions in their provisions, we conclude that such procedures are not available to challenge a workplace violence restraining order petition under section 527.8. As a result, the trial court did not err when it proceeded with the hearing on the petition for a workplace violence restraining order prior to the date set for the hearings on McInerney’s motion to strike and demurrer.

However, even if such procedures did apply here, the trial court reviewed both the motion to strike and demurrer prior to the hearing on the petition under section 527.8, and allowed McInerney to present argument at the hearing on the issues raised in his demurrer and motion to strike. Although the trial court did not explicitly rule on McInerney’s claims, we draw all reasonable inferences necessary to support the court’s order, and thus infer the trial court rejected McInerney’s claims of defect and objections. (Severson, supra, 37 Cal.App.5th at p. 944.) As discussed in detail below, substantial evidence supports this inference.

5. Covia’s Petition was Appropriately Executed and Did Not Require Verification
6.
McInerney argues that the petition filed under section 527.8 must be verified, and the trial court’s order should be reversed because the petition submitted by Covia was not verified. Construing his claim as an argument that the petition and the accompanying declaration had to be declared true under penalty of perjury (§ 2015.5), we find his argument to be without merit. The record reflects that the petition was signed by the attorney representing Covia. S.V.’s declaration was signed under penalty of perjury by S.V. herself; K.Y. and J.M. also signed their declarations under penalty of perjury.

Section 128.7, subdivision (a) provides, in relevant part, “Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit.” Section 527.8 does not require verification of the petition seeking a workplace violence restraining order. The statute requires a “declaration” showing reasonable proof that an employee has suffered unlawful violence or a credible threat of violence in order to obtain a temporary restraining order. (§ 527.8, subd. (e).) Covia submitted three such declarations with its petition. McInerney has not cited any additional legal authority requiring additional verification of the petition, nor are we aware of any such authority.

McInerney claims that S.V.’s signature, which does not legibly spell out her name, is not sufficient to support her declaration, as it appears to be him to be comprised only of her initials, and not her full name. Moreover, he argues that S.V.’s signature is noticeably different on different pleadings, such that it must be falsified. McInerney raised these same claims in his demurrer, which the trial court considered as part of the hearing on the petition. Since the court granted the petition, we infer that it made a factual finding that the signature was authentic and rejected McInerney’s claim to the contrary.

We review a trial court’s factual findings, express or implied, for substantial evidence. (See In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 94; SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461-462.) Moreover, the trial court is the final arbiter of credibility; we do not disturb its credibility findings on appeal. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 319.) Aside from McInerney’s unsubstantiated claim that S.V.’s signature is not genuine, there is no evidence to show that the signature was not authentic; S.V. testified to the contrary at the hearing, and the trial court found her to be a credible witness. We conclude that substantial evidence supports the trial court’s implied finding that the signature was genuine.

7. Section 527.8 Does Not Require a Memorandum of Points and Authorities
8.
Citing section 527, McInerney argues Covia was required to file a memorandum of points and authorities with its petition for a workplace violence restraining order. The California Rules of Court reveal the error in McInerney’s argument: rules 3.1114(a)(10) and former 3.1152(b) (renumbered to 3.1160(b) eff. Jan. 1, 2019), explicitly exclude petitions for workplace violence restraining orders from other provisions of the statutes or rules requiring a memorandum of points and authorities.

9. The Trial Court Had Jurisdiction to Hear the Petition
10.
McInerney argues the trial court lacked personal jurisdiction to hear the petition, and that the petition was “premature” because the events alleged therein did not take place on Covia’s premises. We disagree on both counts.

a. The Trial Court had Personal Jurisdiction Over McInerney
b.
McInerney argues the trial court lacked “fundamental . . . personal jurisdiction over the parties,” without citation to legal authority or the record. Covia had the petition and supporting documents personally served on McInerney in California, in compliance with the notice requirements of section 527.8, thus establishing personal jurisdiction over him. (Burnham v. Superior Court of Cal. (1990) 495 U.S. 604, 610-611].) McInerney does not provide evidence or legal argument to suggest otherwise.

c. Town Park Towers was S.V.’s “Workplace”
d.
McInerney further argues the case is “premature” because none of his alleged conduct took place on Covia’s property; rather it occurred at Town Park Towers, owned by Presbyterian. McInerney does not cite any legal authority in support of this contention. Section 527.8 provides that an employer can seek a restraining order against unlawful violence or credible acts of violence “that can reasonably be construed to be carried out or to have been carried out at the workplace . . . .” (§ 527.8, subd. (a).) The statute does not define “workplace.” To interpret the statute, we must determine the Legislature’s intent to effectuate its purpose, first by examining the statutory language, giving it a plain and commonsense meaning. (Hassell v. Bird (2018) 5 Cal.5th 522, 540.) If the language is clear, we follow that plain meaning unless doing so would result in absurd, unintended consequences. (Ibid.) Here, the plain meaning of the term “workplace” supports the trial court’s issuance of a workplace violence restraining order against McInerney.

“ ‘Workplace’ is commonly understood as covering any place where work is performed. This is especially true where worker health and safety is concerned.” (Pulaski v. California Occupational Safety and Health Standards Board (1999) 75 Cal.App.4th 1315, 1339 (Pulaski).) S.V.’s work was performed, in part, at Town Park Towers, as confirmed by K.Y., S.V.’s supervisor. The plain meaning of the term as used in section 527.8 does not limit “workplace” to one location. In fact, section 527.8, subdivision (a), clearly anticipates situations where an employer maintains more than one workplace, as it allows the employer to seek orders protecting “other employees at other workplaces of the employer,” in addition to orders protecting the subject employee. (Italics added.)

Nor does the plain meaning of “workplace” require that the employer own the subject property. Section 527.8, subdivision (b)(3), defines “ ‘[e]mployer’ ” and “ ‘[e]mployee’ ” by reference to Labor Code section 350, which provides that “ ‘[e]mployer’ means every person engaged in any business or enterprise in this state that has one or more persons in service under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, irrespective of whether the person is the owner of the business or is operating on a concessionaire or other basis.” (Lab. Code, § 350, subd. (a).) “ ‘Business’ means any business establishment or enterprise, regardless of where conducted.” (Lab. Code, § 350, subd. (f), italics added.) The Labor Code thus provides an employer and its business are not tied to one particular location, or to a location owned by the employer. Notably, for purposes of the California Occupational Safety and Health Act (Lab. Code, § 6300, et seq.), the term “ ‘[p]lace of employment’ ” is defined as “any place, and the premises appurtenant thereto, where employment is carried on . . . .” (Lab. Code, § 6303, subd. (a).) Substantial evidence supports a finding that Town Park Towers is one of two locations where S.V. performed her work and carried on her employment. The trial court properly determined Covia could seek a restraining order based on McInerney’s conduct carried out at Town Park Towers.

11. The Trial Court Considered Proper, Sufficient Evidence to Issue the Restraining Order
12.
In support of the petition for the second restraining order, S.V. described the events leading to the issuance of the first restraining order. On appeal, McInerney contends the trial court erred in considering this information, as Covia was not the petitioner in the first restraining order petition. Regarding the evidence of events occurring after the expiration of the first restraining order, McInerney contends there was no eyewitness testimony or documentary evidence, such as security camera footage, to support S.V.’s accusations. He thus believes the trial court erred in issuing the second restraining order. We disagree and affirm the order.

McInerney argues the trial court could not consider the events leading to the issuance of the first restraining order because Covia was not the petitioner in that matter. However, the law is clear that the trial court can consider evidence from a since-expired restraining order in evaluating a subsequent request involving the same protected and restrained parties. “While it is true that an injunction restraining future conduct is authorized by section 527.6 only when it appears from the evidence that the harassment is likely to recur in the future [citation], in evaluating the likelihood that the harassment will continue the court was not limited to events that occurred after the first restraining order was entered. The lapse of the first harassment restraining order did not erase the facts on which the order was based, and did not preclude the court from considering the existence of those facts in evaluating the need for a new order. Nor was the court restricted as to the nature of the evidence from which it could draw an inference of a likelihood that the harassment would resume; the court could consider any evidence showing a likelihood of future harassment, including evidence of conduct that might not itself constitute harassment. (§ 527.6, subd. (i) [in determining whether restraining order is needed, court ‘shall receive any testimony that is relevant, and may make an independent inquiry’].) Behavior that may not alone constitute an intentionally harassing course of conduct logically still might show an intention to resume or continue an already-established course of harassing conduct.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 189-190 (R.D.).)

Although R.D. concerns application of section 527.6, which governs requests for civil harassment restraining orders, rather than section 527.8, the principles at issue are the same. As was true in R.D., in the instant matter, Covia had to show that S.V. would suffer harm due to the reasonable probability that unlawful violence or credible threats of unlawful violence would occur in the future. (Scripps, supra, 72 Cal.App.4th at p. 335.) Under both section 527.6, subdivision (i), and 527.8, subdivision (j), the trial court must receive “any testimony that is relevant . . . .” Thus, the court had to consider whether McInerney’s “recent conduct, viewed in the context of [his] record of harassment, was sufficient to indicate that [he] was likely to harass [S.V.] in the future. [Citation.]” (R.D., supra, 202 Cal.App.4th at p. 190.)

There is substantial evidence to support a finding that McInerney engaged in unlawful violence or credible threats of violence, as defined under the relevant statutes, after the issuance of the first restraining order. Viewed in the context of the events preceding the request for the first restraining order, the evidence was sufficient to indicate that McInerney was likely to stalk or harass S.V. in the future. S.V. recounted the allegations leading to the issuance of the first restraining order in her declaration in support of the second order, stating McInerney followed her, made suggestive comments to her, took pictures of her without her permission and over her objection, refused to leave her desk when asked to do so, waited for her in the parking lot at the start of her shift, and stared at her through the windows of Town Park Towers. Although McInerney did not violate the first restraining order while it was in effect, in July 2015, almost a year-and-a-half after the court issued the first order, McInerney signaled his continuing infatuation with S.V. in his opening brief in the appeal of that order, stating, “The fact of her magnetism is self-evident and respondent [McInerney] couldn’t break free of her even if he wanted which he doesn’t for obvious reasons.” (Italics added.)

McInerney waited less than a week after the first order expired to go to Town Park Towers and ask about S.V., being “very persistent” in doing so. He went back to Town Park Towers approximately three weeks later and again asked about S.V., indicating he wanted to see her. McInerney made clear his belief he could enter the premises any time he wanted, as the restraining order had expired, suggesting that K.Y. would have to call the police to compel him to leave. On the same day McInerney spoke to K.Y., he visited a residence affiliated with S.V., leaving a his phone number with a young resident of the home for S.V. to call him.

The court received evidence of these three incidents that occurred after the expiration of the first restraining order from appropriate sources. K.Y. was an eyewitness, as he spoke to McInerney in Town Park Towers’ parking lot. J.M., also an eyewitness, provided a declaration, which the court was authorized to consider. (Kaiser, supra, 201 Cal.App.4th at p. 557.) While S.V.’s declaration and testimony relating to the three incidents occurring after the expiration of the first restraining order include hearsay statements, the trial court is allowed to consider hearsay evidence in evaluating a request for a workplace violence restraining order. (§ 527.8, subd. (j); Kaiser, supra, 201 Cal.App.4th at p. 557.) This evidence shows McInerney engaged in a course of conduct, including entering S.V.’s workplace and corresponding with her through a “young resident” at her former mailing address, that would place a reasonable person in fear for her safety. (§ 527.8, subd. (b).)

The three incidents occurring after the expiration of the first restraining order, taken in context of McInerney’s previous stalking and harassing of S.V., constituted unlawful violence or a credible threat of violence, which reasonably placed S.V. in fear of her safety, as she attested in her supporting declaration, and which served no legitimate purpose. Moreover, the evidence showed a reasonable probability that unlawful violence or credible threats of unlawful violence would occur in the future. The evidence presented was sufficient for the trial court to find by clear and convincing evidence that an injunction should issue under section 527.8. (§ 527.8, subd. (j).)

13. The Restraining Order Does Not Violate McInerney’s First Amendment Rights
14.
McInerney suggests the terms of the second restraining order prevent him from accessing the county law library; the order requires him to stay at least 300 yards away from S.V., her workplace (with specific addresses listed), home and vehicle. McInerney cites the United States Supreme Court’s ruling in “Faretta v. California” for the proposition that he needs access to the library as a self-represented litigant “in order to legitimize the right to petition the government under the First Amendment to redress grievances.” McInerney does not cite to any portion of the record confirming the restraining order limits his access to the county law library. Nor does he cite additional legal authority aside from the Supreme Court case.

In Faretta v. California (1975) 422 U.S. 806, 834-835, the United States Supreme Court held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. The case at bar is not a criminal matter. Faretta did not involve the issuance of a restraining order. McInerney has not explained how the ruling in Faretta, when applied to the facts of the matter before us, reveals an error in the trial court’s issuance of the restraining order. As we already noted, “[i]t is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.) McInerney has not shown reason to reverse the trial court’s order on the basis that its scope allegedly includes the county law library.

15. There Is No Evidence The Trial Judge Committed an “Obvious” or “Deliberate Miscarriage of Justice”
16.
McInerney generally argues that the trial judge committed an “obvious” or “deliberate miscarriage of justice,” without citation to factual or legal authority. As discussed above, there was substantial evidence supporting the trial court’s issuance of the restraining order under section 527.8. McInerney has not cited to any portion of the record showing bias or other impropriety on the trial judge’s part. “[A]dverse or erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1112; Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796.)

V. DISPOSITION
VI.
The order is affirmed.

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Greenwood, P.J.

WE CONCUR:

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Grover, J.

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Danner, J.

Covia Communities v. McInerney

No. H044941