Filed 6/26/20 Kaiser Foundation Hospitals v. Letherblaire 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

—-

KAISER FOUNDATION HOSPITALS et al.,

Plaintiffs and Respondents,

v.

PAULA LETHERBLAIRE,

Defendant and Appellant.

C085987

(Super. Ct. No. 34-2017-70002583-CU-HR-GDS)

Paula Letherblaire appeals from a workplace violence restraining order issued against her following threats of violence she directed at attorneys representing Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and The Permanente Medical Group, Inc. (collectively Kaiser). Although Letherblaire’s opening brief is difficult to understand, as best we can tell she argues that (1) substantial evidence does not support the workplace violence restraining order, (2) the trial court lacked jurisdiction to issue the restraining order, and (3) her statements were made in the context of constitutionally-protected probate litigation activity and could not be restrained.

We conclude (1) on this limited record, we must presume the trial court’s ruling was supported by sufficient evidence, (2) the jurisdictional challenge is forfeited, and (3) a credible threat of violence is not constitutionally protected. We will affirm the trial court’s order.

STANDARD OF REVIEW

We begin with a description of the standard of review because it explains which alleged facts and asserted arguments we will consider in this appeal.

“ ‘ “[T]he decision to grant [a restraining order] rests in the sound discretion of the trial court.” [Citation.] “A trial court will be found to have abused its discretion only when it has ‘ “exceeded the bounds of reason or contravened the uncontradicted evidence.” ’ ” [Citation.] “ . . . the burden rests with the party challenging the [trial court’s order] to make a clear showing of an abuse of discretion.” ’ ” (Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 834; see Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226.)

Although she represents herself, Letherblaire is like any other party and must follow the rules of appellate procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu); Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 (Tanguilig).) Those rules require an appellate brief to support each point by argument and, if possible, by citation of authority and to provide a citation to the record for a factual assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (a)(1)(C).) “[W]e may disregard factual contentions that are not supported by citations to the record [citation] or are based on information that is outside the record [citation]. We may disregard legal arguments that are not supported by citations to legal authority [citation] or are conclusory [citation].” (Tanguilig, at p. 520, fn. omitted.) Further, we may treat a point that is not supported by cogent legal argument as forfeited. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [the appellate court is not bound to develop the appellant’s argument for her]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; In re S.C. (2006) 138 Cal.App.4th 396, 408-410; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120 [lack of intelligible legal argument may constitute an abandonment of the appeal and justify dismissal].)

Letherblaire’s arguments are difficult to understand. For example, she argues: “The first impression issue, of whether the prohibitory injunction court looking for past patterns of unlawful behavior its plaintiff petitioner attributes to prior litigation every fact, circumstance or causes to be relieved. The issue is whether the later court takes any lingering cause from prior litigation that held the identical parties and controversy moved to judgment.” We will deem claims which Letherblaire fails to support with cogent legal argument or citation to authority as forfeited.

In addition, the Background portion of Letherblaire’s opening brief references facts with no citation to the record and for which we have found no support in the clerk’s transcript. For example, we found nothing in the record about a State-noticed taking of “estate public pension (health) benefits,” the prosecution of a breach of fiduciary duty claim “against the estate public pension the City bid subcontractors were servicing,” a “probate civil complaint injunction,” “estate pension subcontractors” or a probate injunction. We do not consider asserted facts lacking a citation to the record or support in the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.)

BACKGROUND

In 2012, the Family Relations Division of the Sacramento County Superior Court granted letters of conservatorship to Letherblaire pertaining to her mother, who died that year, and her mother’s estate. In 2015, another department of the Sacramento County Superior Court granted a petition to compel arbitration filed by Kaiser and Manpreet Brar, M.D. in a different action. A copy of the complaint for that case is not in the record, but the trial court’s order indicates that Letherblaire asserted claims for elder abuse, battery, fraud and deceit, medical malpractice, and wrongful death in connection with care Letherblaire’s mother allegedly received. After an arbitrator issued a final award against Letherblaire, this court dismissed Letherblaire’s appeal as from a nonappealable order and issued a remittitur in case No. C085260.

Meanwhile, Kaiser sought a workplace violence restraining order pursuant to Code of Civil Procedure section 527.8. Kaiser’s petition, supported by declarations, alleged that Letherblaire made credible threats of violence against Kaiser attorneys that would cause a reasonable person to fear for their safety or the safety of their family. Letherblaire sent the Kaiser attorneys an e-mail stating that the only way to communicate that was left was for “someone to firmly grip something and brace for the unexpected.” Letherblaire said she carried “enough raw anger” to last her until the next appearance and, in another e-mail, told the attorneys there would be hell to pay, adding “Buck up ass_. This ride just started.” When the matter concluded in Kaiser’s favor, Letherblaire sent an e-mail stating her goal was “to line all of you bastards up against a wall and unload . . . so your interest in what happens next will be a ‘cautionary tale’ at the very least, and will hopefully be your demise at best — if there is a god. . . . [¶] As interested parties entitled to service, all of this shit should be coming your way within one week or so.” The attorneys declared that they understood Letherblaire’s e-mail to mean that Letherblaire intended to show up at the attorney offices, and the attorneys were concerned for their safety and the safety of others.

On October 13, 2017, the trial court issued a three-year workplace violence restraining order against Letherblaire. The trial court ordered Letherblaire to stay at least 100 yards away from the Kaiser attorneys and their homes and workplace, except to attend litigation matters. The order also prohibited Letherblaire from owning or possessing any firearms or ammunition. Letherblaire appeals from the order.

Letherblaire’s request for judicial notice of certain exhibits is denied. Judicial notice is not necessary for pages 4-10, 12, 72-73, 96 and 98 of the exhibits because they are already part of the clerk’s transcript for this case, whereas judicial notice is inappropriate for the remaining documents because it appears they were filed with the arbitrator but not the trial court.

DISCUSSION

I

Letherblaire appears to argue that substantial evidence does not support the workplace violence restraining order.

Section 527.8, the Workplace Violence Safety Act, permits an employer to seek a temporary restraining order and injunction on behalf of its employees to prevent violence or threatened violence against its employees. (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 536 (City of San Jose); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333 (Scripps).) The statute provides, “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 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.” (§ 527.8, subd. (a).)

“ ‘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 . . . sending correspondence to an employee by any means . . . .” (§ 527.8, subd. (b)(1).) A threat “ ‘occurs when a reasonable person would foresee that the threat would be interpreted as a serious expression of intention to inflict bodily harm.’ ” (City of San Jose, supra, 190 Cal.App.4th at p. 539.) A threat to kill is a credible threat of violence under section 527.8. (Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 552-554 (Wilson); In re M.B. (2011) 201 Cal.App.4th 1057, 1066-1067, 1072.)

The trial court shall receive relevant testimony (§ 527.8, subd. (j)) and may consider declarations and hearsay evidence (Wilson, supra, 201 Cal.App.4th at pp. 556-558 [a proceeding under § 527.8 may proceed entirely on declarations]; see Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728-729.) The trial court shall issue an order prohibiting further unlawful violence or threats of violence if it finds, by clear and convincing evidence, that the person to be restrained engaged in unlawful violence or made a credible threat of violence and that great or irreparable harm would result to the employee without issuance of the prohibitory injunction because there is a reasonable probability the wrongful acts will occur in the future. (§ 527.8, subd. (j); Scripps, supra, 72 Cal.App.4th at pp. 327, 331, 335.)

It is a fundamental rule of appellate review that an order of the trial court is presumed correct and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “ ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[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.” ’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).)

A necessary corollary to the presumption of correctness in favor of a trial court’s order is that the trial court’s decision should be affirmed if the appellant fails to provide a record that permits meaningful review. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Foust, supra, 198 Cal.App.4th at pp. 186-188; Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574-576 (Elena S.); Le Font v. Rankin (1959) 167 Cal.App.2d 433, 436-437.) This rule applies to pro per litigants. (Elena S., at pp. 574-576; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125; Le Font, at pp. 434, 436-437.)

Letherblaire elected to proceed without a reporter’s transcript of the restraining order hearing. The omission of a reporter’s transcript or a settled statement precludes meaningful review of her claims. (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657; Elena S., supra, 247 Cal.App.4th at pp. 574-576; Foust, supra, 198 Cal.App.4th at p. 187.) The restraining order indicates that the individuals to be protected by the order attended the hearing. On an appeal based on a clerk’s transcript only, “if 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; see also Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) In the absence of an adequate record, we presume the trial court acted properly. (Elena S., at p. 576.)

II

Letherblaire next appears to argue that the trial court lacked jurisdiction to issue the restraining order. She seems to claim that the trial court was required to yield to the jurisdiction of the probate court.

We do not consider Letherblaire’s claims because she fails to provide adequate citations to the record for her factual contentions and her arguments are not supported by sufficient citations to legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B), (a)(1)(C); Tanguilig, supra, 36 Cal.App.5th at p. 520.)

A conservatorship terminates upon the conservatee’s death. (Prob. Code, § 1860.) Letherblaire does not explain, with citation to authority, how letters of conservatorship over the person and estate of her mother authorized Letherblaire to prosecute the Kaiser attorneys such that the trial court had no authority to issue a section 527.8 restraining order. Section 527.8 authorizes a trial court judge to issue an order prohibiting further unlawful violence or threats of violence. (§ 527.8, subd. (j).) Letherblaire fails to demonstrate that the trial court here lacked jurisdiction to issue the challenged order.

III

It appears that Letherblaire further claims that her e-mails were created in the context of constitutionally-protected probate litigation activity. Section 527.8 does not permit a court to issue an order prohibiting speech or other activities that are constitutionally protected or otherwise protected by any provision of law. (§ 527.8, subd. (c).) But threatening violence is not constitutionally protected and Letherblaire does not cite any authority holding otherwise. (See City of San Jose, supra, 190 Cal.App.4th at p. 537; see Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1403-1404 [speech used to annoy, ridicule and threaten mother of respondent’s girlfriend was not entitled to constitutional protection].)

The case Estate of Baglione (1966) 65 Cal.2d 192, which Letherblaire cites, does not help her. There the California Supreme Court held that the probate court should have considered a contract claim because once the probate court determined that a widow was entitled to her community property share of real property, the probate court should also have determined any other interests she had in the same property. (Id. at pp. 195-197.) But here there is no indication in the record that Kaiser or the Kaiser attorneys were parties in a probate proceeding with Letherblaire or that the Kaiser petition sought to adjudicate an issue that had been considered by a superior court sitting in probate. Conservatorship of Durham (1988) 205 Cal.App.3d 548 and Jacobs v. Superior Court (1959) 53 Cal.2d 187, also cited by Letherblaire, are likewise distinguishable. The record before us does not establish a connection between the Kaiser petition and a probate proceeding.

Letherblaire also cited Central Bank v. Superior Court (1955) 45 Cal.2d 10. The Supreme Court held in that case that a superior court sitting in probate had no jurisdiction over an action to compel a bank to pay money to the guardian of a minor. (Id. at pp. 17-18.) But the quote Letherblaire attributed to the case cannot be found in the Supreme Court’s opinion.

DISPOSITION

The October 13, 2017 workplace violence restraining order after hearing is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/S/

MAURO, Acting P. J.

We concur:

/S/

DUARTE, J.

/S/

RENNER, J.