Filed 8/14/18 Windsor Sacramento Estates v. Anderson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

—-

WINDSOR SACRAMENTO ESTATES LLC,

Plaintiff and Appellant,

v.

RONALD ANDERSON,

Defendant and Respondent.

C084338

(Super. Ct. No. 34-2017-70001655)

Appellant Windsor Sacramento Estates LLC (Windsor), a skilled nursing facility, appeals from an order denying its request under Code of Civil Procedure section 527.8 for a workplace violence restraining order against respondent Ronald Anderson, a former patient. Windsor argues that the trial court failed to consider purportedly uncontroverted evidence in support of its petition that showed Anderson engaged in unlawful violence and remained a threat to its employees.

Given that the record on appeal omits a reporter’s transcript, we are bound to presume sufficient evidence supports the trial court’s order. We therefore find no merit to Windsor’s contentions and affirm.

BACKGROUND

Windsor operates a skilled nursing facility in Sacramento that cares for elderly or disabled patients. Between December 2014 and October 2016 Anderson was a patient at Windsor’s facility. At the time, he was 70 years old and suffered from multiple health conditions, including Alzheimer’s disease.

On October 1, 2016, Windsor called the police after Anderson allegedly assaulted Windsor’s administrator. According to the administrator, Anderson chased her down the hall and then spit on her. Anderson was held on an involuntary psychiatric hold under Welfare and Institutions Code section 5150, and was admitted to the psychiatric unit at UC Davis Medical Center that same day. After receiving acute care treatment and medication adjustments at UC Davis Medical Center, Anderson was approved for discharge to the skilled nursing facility level of care and sought readmission to Windsor’s facility.

Windsor informed UC Davis Medical Center on October 26, 2016, and February 8, 2017, that it would not readmit Anderson to its skilled nursing facility. Windsor, however, did not issue a written transfer or discharge notice, nor did it engage in discharge planning as required by law.

On February 22, 2017, Windsor filed a verified petition for a workplace violence restraining order against Anderson. The court granted a temporary restraining order the same day, and set a hearing for a permanent restraining order on March 10, 2017.

According to Windsor’s petition, which was verified by Windsor’s administrator Theresa W., Anderson had battered or physically assaulted employees or other residents 14 times while living in the nursing facility. Two employees had visible scars on their arms from Anderson striking or grabbing them violently, and defendant had chased Theresa W. to her office, spit in her face, and threatened to hit her before he was restrained.

On February 23, 2017, the day after Windsor requested the restraining order, the Department of Health Care Services (Department) held an administrative hearing on the propriety of Windsor’s discharge of and refusal to readmit Anderson. The Department issued a decision on February 27 finding that Windsor failed to follow proper notice and discharge planning procedures prior to evicting Anderson and by failing to readmit him back into the nursing home with the first available bed.

Based on documentation and evidence presented during the administrative hearing, the Department’s final decision included the following: Anderson was transferred to UC Davis Medical Center in October 2016 after exhibiting agitated behavior and engaging in two physical altercations with another resident. Windsor claimed that Anderson’s aggressive behavior was part of a pattern that he exhibited since February 2016 and was “a reflection of the progression of his [Alzheimer’s disease].” Because he liked to walk the halls of its facility, he posed a risk to other residents. Windsor also argued that even though Anderson may not have been exhibiting such negative behaviors while at UC Davis Medical Center, its facility was more chaotic and noisy.

UC Davis Medical Center staff, on the other hand, testified that Anderson had been calm and pleasant during their morning visits. Although he had displayed some combative behavior toward nursing staff during his incontinence care, he could be distracted or redirected during these episodes by giving him various items such as the container of wipes or something to eat. While Anderson had intermittently gotten out of bed during his time at the medical center and walked the halls, he had made no attempts to physically strike out at anyone. According to the medical staff, Anderson had been “easily redirected” and needed to be “dealt with firmly.” At that time, Anderson was in UC Davis Medical Center’s “ ‘mental health’ ” section, which staff described as “busy and loud.” UC Davis Medical Center case management staff also offered to provide mental health monitors to supervise Anderson one-on-one for a designated period of time if he were readmitted to Windsor.

The hearing officer found that Anderson had received acute care treatment at UC Davis Medical Center, including adjustment of medications, and was approved for discharge to the nursing facility. Despite Windsor’s arguments to the contrary, the hearing officer found that Windsor was able to care for Anderson and that the severity of his negative behaviors had been alleviated after being treated at UC Davis Medical Center, whose staff had been able to effectively manage any difficult behaviors before they escalated.

On March 10, 2017, the Sacramento Superior Court held a hearing on Windsor’s request for a permanent workplace violence restraining order. The record does not contain a transcript of the hearing.

Counsel for Windsor and Anderson appeared at the hearing. UC Davis Medical Center, as an interested party, requested that the court take judicial notice of the Department’s final decision after the February administrative hearing finding Windsor failed to properly evict Anderson. Following the hearing, the court denied Windsor a permanent workplace violence restraining order. Windsor timely appealed.

DISCUSSION

Windsor contends the court erred in failing to consider purportedly uncontroverted evidence showing that Anderson engaged in unlawful violence and remained a threat to its employees. According to Windsor, the only evidence before the court was its verified petition requesting the restraining order, which showed that Anderson had been involved in 14 incidents in which he had physically attacked other residents or employees, and that he had chased the facility administrator and spit on her. The allegations in the verified petition, Windsor argues, were sufficient to warrant a restraining order under section 527.8. In the absence of a reporter’s transcript of the hearing on the workplace violence restraining order, we are bound to presume sufficient evidence supports the court’s implicit findings that Windsor failed to show a restraining order was appropriate under the circumstances.

Under section 527.8, California’s Workplace Violence Safety Act, an employer may seek a temporary restraining order and an injunction on behalf of an employee who has “suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.” (§ 527.8, subd. (a).) Section 527.8 was enacted to establish parallel provisions to section 527.6, which authorized injunctive relief where there was a threat of harm due to harassment. (§ 527.6; Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334 (Scripps Health) [“section 527.8 was enacted to allow a corporate employer to bring [an injunctive relief] action on behalf of an employee;” it was “intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons”].)

Upon filing a petition for an injunction under section 527.8, an employer may obtain an interim temporary restraining order if the employer “also files a declaration that, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent, and that great or irreparable harm would result to an employee.” (§ 527.8, subd. (e).) A hearing must be held on the employer’s petition for an injunction within a specified period of time, and the temporary restraining order remains in effect until the hearing. (§ 527.8, subds. (g), (h).)

“At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry.” (§ 527.8, subd. (j).) “If 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.” (§ 527.8, subd. (j).) For purposes of the statute, “ ‘[u]nlawful violence’ ” means “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).) A “ ‘[c]redible threat of violence’ ” means 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).) A “ ‘[c]ourse of conduct,’ ” in turn, 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 an employee during hours of employment . . . .” (§ 527.8, subd. (b)(1).)

To obtain a permanent injunction under section 527.8, subdivision (j), “a plaintiff must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also 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, supra, 72 Cal.App.4th at p. 335.) Thus, a permanent injunction can issue only “if the evidentiary record establishes the reasonable probability” Anderson’s “wrongful acts would be repeated in the future.” (Id. at p. 336.)

In this case, Windsor argues that the uncontroverted evidence showed Anderson engaged in unlawful violence and was a threat to its employees. The problem with Windsor’s argument, however, is that it fails to recognize our limited scope of review in a “judgment roll” appeal such as this. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) The appellate record, as Anderson notes, consists only of a clerk’s transcript and does not include a reporter’s transcript of the hearing on this matter. The absence of a reporter’s transcript on appeal is significant.

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “This presumption has special significance when, as in the present case, the appeal is based upon the clerk’s transcript.” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) In a “judgment roll” appeal, we must conclusively presume evidence was presented that is sufficient to support the court’s findings. (Ibid.) “ ‘[The] question of the sufficiency of the evidence to support the findings is not open.’ ” (Allen v. Toten, supra, 172 Cal.App.3d at p. 1082.) We do not presume the record contains all matters material to a determination of the points on appeal unless the asserted error “appears on the face of the record.” (Cal. Rules of Court, rule 8.163; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” (Riley v. Dunbar (1942) 55 Cal.App.2d 452, 455.)

The record shows that the trial court held a hearing on the restraining order which both counsel for Windsor, Anderson, and apparently UC Davis Medical Center attended. The court, then, considered additional facts and argument in addition to the documents included in the clerk’s transcript. Given the restrictive rules of review that apply in the absence of a reporter’s transcript, we must presume that the evidence presented was sufficient to support the court’s implicit finding that Windsor failed to establish a reasonable probability that Anderson’s wrongful acts would be repeated in the future. (Scripps Health, supra, 72 Cal.App.4th at p. 336.)

Windsor, as the appellant, bears the burden of “provid[ing] an adequate record to assess error.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Without a reporter’s transcript, Windsor has failed to provide an adequate record to assess its contention that insufficient evidence supports the court’s implicit findings that it failed to establish the necessary elements to issue a permanent workplace violence restraining order under section 527.8.

DISPOSITION

The order denying the workplace violence restraining order is affirmed. Respondent shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)

/s/

Blease, Acting P. J.

We concur:

/s/

Mauro, J.

/s/

Hoch, J.