Filed 6/17/20 Employment Development Dept. v. Riley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

EMPLOYMENT DEVELOPMENT DEPARTMENT,

Plaintiff and Respondent,

v.

SHANE W. RILEY,

Defendant and Appellant.

C087669

(Super. Ct. No. 34-2018-70003663-CU-HR-GDS)

This is an appeal from a workplace violence restraining order issued under Code of Civil Procedure section 527.8. Defendant Shane W. Riley contends the trial court erred in issuing the order because (1) there was insufficient evidence that Riley made a credible threat of violence; (2) the injunction violated his constitutionally protected right to petition for redress of grievances; and (3) the injunction is overbroad. We will affirm.

BACKGROUND LAW

California’s unemployment insurance program is administered by the Employment Development Department (EDD). (Unemp. Ins. Code, §§ 301-301.7.) If a worker becomes unemployed, the worker may file a claim for unemployment insurance benefits with the EDD. (Unemp. Ins. Code, § 1326.) The EDD makes the initial determination as to the claimant’s eligibility for benefits. (Unemp. Ins. Code, § 1328; Cal. Code of Regs., tit. 22, § 1326-1 et seq.) If the worker is dissatisfied with the EDD’s determination, the worker may appeal the eligibility determination to an administrative law judge (ALJ), who will decide the issue after an evidentiary hearing. (Unemp. Ins. Code, §§ 404, 1334; Acosta v. Brown (2013) 213 Cal.App.4th 234, 238; Gilles v. Department of Human Resources Development (1974) 11 Cal.3d 313, 317.) If the claimant remains unsatisfied with the ALJ’s decision, he or she may further appeal to the California Unemployment Insurance Appeals Board (CUIAB). (Unemp. Ins. Code, §§ 409, 1328, 1336; Gilles, supra, at p. 317.)

FACTUAL AND PROCEDURAL BACKGROUND

In August 2017, the EDD notified Riley that his application for unemployment insurance benefits had been denied due to an alleged prior overpayment of benefits. Riley appealed this determination.

After filing his appeal, Riley began sending inappropriate e-mails to EDD employees. From August 27, 2017, through November 10, 2017, Riley sent nine e-mails to EDD employees. The e-mails contain hostile, racist, and abusive language, often typed in all capital letters and laced with profanities. In his e-mails, Riley stated that what was happening to him was “STUPID & RIDICULOUS,” “ABSOLUTE BULLSHIT,” and “UNACCEPTABLE!!” Riley also made repeated references to an “African American stalker” who ostensibly has been following him for years and trying to “bring [him] down.” Riley blamed his current predicament on the stalker’s interference in his life, and suggested that African-Americans working for the EDD were conspiring against him to make his life difficult.

Riley insisted throughout his e-mails that he “WILL NOT be IGNORED,” that the state cannot “DISRESPECT” him, that “THIS BS CANNOT CONTINUE” and it “WILL NOT BE TOLERATED.” Riley demanded that the EDD “THROW THIS BULLSHIT OUT!!!” and “FIRE THE HELL OUT OF THESE SENSELESS IGNORANT AFRICAN AMERICANS.”

On November 18, at the EDD’s request, an officer from the California Highway Patrol sent Riley an e-mail asking him to stop sending e-mails to the EDD. The officer explained to Riley that any information he has about his claim should be submitted to the judge overseeing his appeal, not to the EDD. Undeterred, on the same day, Riley sent another hostile and abusive e-mail to the CHP officer and an EDD employee.

On December 12, 2017, the Director of the EDD sent Riley a letter explaining that, due to Riley’s appeal, the EDD no longer had jurisdiction over his claim. The letter requested Riley to stop sending “inappropriate and threatening” e-mails to EDD staff. The Director’s letter proved ineffective. In January 2018, Riley sent three more inappropriate e-mails to EDD employees. In those e-mails, Riley insisted that he had not done anything harassing or threatening, and that the harassment was being done by the “senseless ignorant African Americans” working for the EDD. In his last e-mail, dated January 29, 2018, Riley wrote, “SHANE RILEY HAS DONE NOTHING WRONG AND WILL DO NOTHING WRONG,” that “[t]his is NOT A DAMN GAME,” “THIS IS NOT THE DAMN JUNGLE,” and that he “WILL NOT BE THE ENTERTAINMENT FOR CAGED ANIMALS.”

In April 2018, the EDD filed a petition for a workplace violence restraining order against Riley under section 527.8. All of Riley’s e-mails were attached to the petition. A hearing on the petition was held on June 1, 2018. EDD employee John Martin appeared at the hearing and his declaration was received into evidence.

After hearing the evidence, the court granted the petition and issued a workplace violence restraining order against Riley using the Judicial Council’s mandatory “check-the-box” form (WV-130). (§ 527.8, subd. (v)(2).) The court checked the boxes ordering Riley not to (1) harass, molest, strike, assault, batter, abuse, destroy personal property of, or disturb the peace of the protected employees; (2) commit acts of violence or make threats of violence against the protected employees; (3) follow or stalk the protected employees during work hours or to or from the place of work; (4) contact the protected employees, either directly or indirectly, in any way, including, but not limited to, in person, by telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text message, by fax, or by other electronic means; or (5) enter the protected employees’ workplace. The court also included a “stay-away” order requiring Riley to stay at least 500 yards away from the protected employees and their workplaces, homes, and vehicles.

Riley filed a timely notice of appeal.

DISCUSSION

I

Sufficiency of the Evidence

Riley contends the trial court erred in granting the petition because there was insufficient evidence of a credible threat of violence. We disagree.

Section 527.8, the Workplace Violence Safety Act, provides a procedure for an employer to obtain an injunction to prevent workplace violence against its employees. (§ 527.8, subd. (a); Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1419, fn. 3.) To issue an injunction, the judge must find clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence. (§ 527.8, subd. (j).) The statute defines a “ ‘credible threat of violence’ ” as “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).)

Here, when the trial court granted the requested injunction, it implicitly found that the EDD employees named in the petition were subjected to a credible threat of violence. The test on appeal is whether the court’s factual findings are supported by substantial evidence. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.)

In applying the substantial evidence test, we are bound to consider the facts in the light most favorable to the decision, giving that decision every reasonable inference and resolving all factual conflicts and questions of credibility in favor of the prevailing party. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.) We do not reweigh the evidence. (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 124 Cal.App.4th 780, 789.) Our review begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial court’s findings. (Estate of Leslie (1984) 37 Cal.3d 186, 201.)

Riley claims that there is no substantial evidence to establish a credible threat of violence because his e-mails, while “harsh and often offensive,” do not contain any threat of violence. We conclude there is substantial evidence to support finding a credible threat of violence regardless of whether Riley expressly threatened EDD employees with physical harm.

Over the course of several months, Riley sent EDD employees numerous e-mails containing hostile, racist, and abusive language, often typed in all capital letters and punctuated with profanities. Riley also made irrelevant and irrational statements about an “African American stalker” or “African American stalkers” who he (apparently) believed were conspiring against him. Taken together, Riley’s statements reasonably suggested both that he is very angry with the EDD and its employees, and that he might be paranoid, delusional, or disconnected from reality.

Although Riley never expressly threatened physical harm, his e-mails contained indirect, implied threats. He forcefully proclaimed that his situation is “UNACCEPTABLE” and “WILL NOT BE TOLERATED,” that this is “NOT A DAMN GAME,” and that he will “NOT be IGNORED.” Whether Riley subjectively intended these statements to be taken as a threat is irrelevant. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538-539 (City of San Jose).) The test is an objective standard, whether a reasonable person would interpret his statements as a serious expression of intent to inflict harm. (Id. at p. 540.) Context is critical. (Id. at p. 541.) When considered in the context of the irrational, racist, and hostile tone of his e-mails, the evidence supports finding that Riley’s statements would cause a reasonable person to be distressed and fearful for his or her safety. A declaration received into evidence from one of the protected employees shows that Riley’s e-mails actually caused EDD employees to have anxiety and be fearful for their safety.

Riley argues that his e-mails were not credible threats of violence because they served a legitimate purpose related to his claim for unemployment insurance benefits. We disagree. At best, a few of Riley’s communications contain cryptic and vague references that conceivably might have some (attenuated) connection to a claim for benefits. The vast majority of his communications consisted of hostile and racist rants against African-Americans, insults, and indirect threats to EDD employees, none of which served any legitimate purpose. (Harris v. Stampolis, supra, 248 Cal.App.4th at p. 499 [distinguishing between parent’s legitimate act of picking son up from school and illegitimate act of threatening violence against principal of school].) While Riley had a right to communicate about his benefits claim, he had no right to pursue that claim in a manner that violated the rights of others.

Moreover, because the EDD lost jurisdiction when Riley appealed his claim to the CUIAB, there was no need for Riley to contact EDD employees. (See Unemp. Ins. Code, §§ 301, 401, 404.) Nonetheless, even after a law enforcement officer got involved, Riley kept sending hostile and abusive e-mails to EDD employees containing implied threats, such as, “MY FAMILY KNOWS ALL ABOUT THIS & WE WILL NOT IGNORE IT OR ALLOW YOU TO IGNORE IT.” These messages served no purpose other than to berate and intimidate EDD employees.

Drawing all reasonable inferences in support of the trial court’s findings, as we must, we conclude there is substantial evidence to support the trial court’s finding that Riley’s e-mails constituted a credible threat of violence to the protected EDD employees.

II

Constitutionally Protected Activity

Section 527.8 does not permit a court to issue an order prohibiting constitutionally protected speech or activities. (§ 527.8, subd. (c).) Riley argues that the injunction issued in his case violated his constitutional right to petition the government for redress of grievances.

As a preliminary matter, because Riley fails to demonstrate that he raised this issue below, it appears this argument has been forfeited on appeal. (Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 717-718; see also Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265.) But even if it has not been forfeited, the argument lacks merit.

The First Amendment protects the right to petition the government for redress of grievances. (U.S. Const., 1st Amend.; see also Cal. Const., art. I, § 3.) However, the right is not absolute or unlimited. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 64; City of San Jose, supra, 190 Cal.App.4th at p. 536.) “As our Supreme Court has explained, ‘ “[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.]” ’ ” (City of San Jose, at p. 536-537.) Once a court has found that a specific pattern of speech is unlawful, an injunction prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited prior restraint of speech. (Id. at p. 537.)

In City of San Jose, the court rejected a First Amendment challenge to injunctive relief issued under the statute at issue here. (City of San Jose, supra, 190 Cal.App.4th at pp. 536-537.) The court held, “[I]t is clear 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.” (Id. at p. 537; USS-Posco Industries v. Edwards, supra, 111 Cal.App.4th at pp. 445-446; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1122 [violence and threats of violence are not protected by the First Amendment]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250 [same].)

The reasoning of City of San Jose applies here. The trial court implicitly found that Riley’s harassing and abusive messages constituted credible threats of violence, serving no legitimate purpose. As discussed above, substantial evidence supports the trial court’s finding. Thus, Riley’s reliance on the First Amendment is unavailing. The trial court did not violate the First Amendment by protecting EDD employees from Riley’s credible threats of violence.

III

Overbreadth

We also reject Riley’s contention that the injunction is unconstitutionally overbroad.

The overbreadth doctrine provides that a governmental purpose to control or prevent activities may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) The test requires balancing the governmental interests at stake against the magnitude of the restrictions on First Amendment rights. (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 880 (DVD Copy Control).)

In determining the appropriate level of scrutiny, the critical question is whether the injunction is content neutral or content based. (DVD Copy Control, supra, 31 Cal.4th at p. 877.) Content-based injunctions are subject to a heightened level of scrutiny. (Ibid.)

We conclude the injunction at issue here is content neutral. The trial court issued the injunction using the Judicial Council’s mandatory “check-the-box” form (WV-130). (§ 527.8, subd. (v)(2).) The trial court issued the injunction after finding that Riley’s conduct met the requirements of a statute that seeks to protect employees against credible threats of workplace violence. The aim of the injunction is to prevent harm of the nature suggested by Riley’s prior threats, not to suppress the content of his speech. (DVD Copy Control, supra, 31 Cal.4th at p. 878.)

Because the trial court’s injunction is content neutral, we review it under the lesser level of scrutiny set forth in Madsen v. Women’s Health Center, Inc., supra, 512 U.S. 753. (DVD Copy Control, supra, 31 Cal.4th at p. 877.) We ask whether the challenged provisions of the injunction burden no more speech than necessary to serve a compelling government interest. (Id. at p. 880.)

The trial court’s injunction undoubtedly serves a compelling government interest by protecting employees from violence and fear of violence. The question is whether the scope of injunctive relief is broader than necessary to serve that interest.

Riley argues that the court’s order is unconstitutionally overbroad because it forbids him from “communicating with EDD employees in any way,” and thereby prohibits him from “resolv[ing] his unemployment issue with the only government agency [authorized to] address that issue.” But the premise of Riley’s argument is mistaken. Contrary to what he asserts, the trial court’s order does not forbid Riley from communicating with all EDD employees under all circumstances. The court’s order only prohibits Riley from contacting the specific employees at whom he directed his threats. The court’s order does not prohibit Riley from communicating with other EDD employees provided he does so without entering the workplace of the protected employees named in the order.

While the trial court’s injunction theoretically may impact Riley’s ability to petition for redress of grievances in the future, the impact is minimal and necessary to protect the named EDD employees from the risk and fear of violence caused by Riley’s e-mails. Thus, Riley has failed to show the injunction is unconstitutionally overbroad.

DISPOSITION

The order is affirmed. Plaintiff EDD shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

KRAUSE , J.

We concur:

MURRAY , Acting P. J.

RENNER , J.