NORTH COAST VILLAGE CONDOMINIUM ASSOCIATION, Plaintiff and Appellant, v. NANCY PHILLIPS, Defendant and Appellant.
D079455
Court of Appeal, Fourth Appellate District, Division One, State of California
August 23, 2023
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 37-2021-00005317-CU-PT-NC)
Berding & Weil, Anne L. Rauch; Epsten, Pejman Kharrazian, for Plaintiff and Appellant.
Cage & Miles and John T. Sylvester for
INTRODUCTION
North Coast Village Condominium Association (the Association) filed a workplace violence restraining order petition pursuant to
Phillips appealed, requesting that we reverse the order granting the civil harassment restraining order and enter judgment dismissing all restraining orders with prejudice. The Association filed a cross-appeal seeking reversal of the order denying the workplace violence restraining order. It also requested that we reverse and remand with instructions to enter a restraining order that includes stay-away orders. In particular, the Association requested the court (1) prohibit Phillips from entering the Association‘s management offices and board meetings, (2) restrict her interactions regarding Association business to written communications, and (3) prohibit her from harassing or assaulting Association employees with racial epithets.
We conclude the trial court abused its discretion by sua sponte amending the cause of action and petitioning party without adequate notice. Regarding the cross-appeal, we further conclude the trial court erred in interpreting and applying
FACTUAL AND PROCEDURAL BACKGROUND
The Association is a California nonprofit corporation with forty-two employees and five board members. The North Coast Village condominium complex includes approximately 550 condominium units, an on-sight management office, and a security office. Phillips and Anderson both own units within the community and Phillips previously served two terms on the Association‘s board of directors. Anderson is the current board president.
Joseph Valenti was the Association‘s general manager for twenty-four years before he retired early—due in part to the fact that dealing with Phillips was “too much“—and took on a consulting role. He first met Phillips in 2005 when she angrily confronted him for supporting a contractor she had reported to the contractor‘s licensing board.
In 2013, Phillips ran for a board position. In her campaign statement, she made allegations against Valenti, saying there were employees that did not exist on the payroll and that Valenti had hired his wife unbeknownst to the board and was paying her huge amounts of money under the table. Phillips was elected to the board. After serving her two-year term, Phillips ran again in 2015 using similar allegations of financial misconduct by Valenti. Although she lost in 2015, she regained her seat in 2016.
Phillips continued to make allegations, but according to Valenti, refused to provide proof and would respond to any requests for evidence by stating that it was an “inappropriate question.” In around 2018, Phillips tried to persuade the board to remove Valenti and replace him with a management company. Together with the “continuous” allegations she made against him, and her “mean as a hornet” tone, this move made him fearful he would lose his job.
During an earlier incident in 2017, Phillips stormed into Valenti‘s office to complain that the ballot box outside his office was unlocked. When he inquired about the problem, she called him an asshole, told him to “shut up,” and then backed out of his office saying, “stop it, Joe; stop it; stop it” to, in his view, “create the illusion that [he] was harming her physically.” Phillips then told the employees outside to call the police and said they would be fired if they did not write letters about what Valenti allegedly did to her.
Valenti estimated that Phillips threatened to fire him over fifty times, including while she was on the board and was his boss. He said he feared for his safety as a result because he was the sole provider for his wife.
B. Parking Garage Incident with Fidel Jiran
Fidel Jiran is the security patrol supervisor of the condominium complex. One morning six to eight years ago, Jiran noticed a car was halfway out of its parking spot and was concerned it might have rolled out. He saw Phillips approaching and asked if it was her car. She responded by asking if he was on a power high. He said no and explained that if it was not her car, he needed to find the owner.
Jiran said Phillips then became “slightly irate,” pointed her finger at him, and said, “What are you on, a fucking high?” She then said “Listen, fucker,” walked quickly towards him, and took a backhanded swipe at his facial area.
Jiran learned from another resident that Phillips was on the board and became concerned that he could lose his job. For several months after the incident, he was anxious but, although he continues to avoid confrontations with Phillips, he reported being “back to normal” now.
C. Phillips Shoves Jennifer Duren
Jennifer Duren works as an administrative assistant and client relations specialist in the Association office. In July 2018, Phillips came into the office and asked to speak with Valenti. Duren went to Valenti‘s doorway to announce Phillips. Phillips then came up behind Duren and shoved her with both hands into Valenti‘s office. Duren said she was so dumfounded that she just went back to her desk, but she later reported the incident to Valenti. Duren is now cautious about interacting with Phillips and said she will turn around and go the other way if she sees Phillips on the property.
D. Racial Slurs Directed at Painters
Jorge Mendez supervises the Association‘s painting department. On May 25, 2020, Mendez and a coworker, Amadeo Hernandez, were painting a garage. It was a holiday and Phillips got mad they were painting and asked what they were doing. Mendez explained that they were finishing up the job they had started before the holiday. Phillips responded, “You guys should not be here because maybe you guys are sick. You guys have COVID-19 and you should go home or go back to Mexico.” Mendez did not respond, but reported the incident to Valenti and said Phillips’ comments made him feel sad.
On June 19, 2020, Mendez and Hernandez were painting the first-floor landing of two adjoining buildings. A security officer had posted signs indicating that they would be painting the floor so residents would have to use the stairs instead of the elevator. Phillips tried to use the elevator and they told her it was closed. She got angry and said, “You motherfuckers should go back to Mexico.” Phillips then walked away, and Mendez reported the incident to Valenti. He said he did not take any of Phillips’ comments to be threats.
E. Parking Garage Incident Involving Wendy Delgado and the Subsequent Investigation
On June 5, 2020, condominium owner Wendy Delgado was in her unit. Her family was staying with her, and she had given her sister a fob to enter the
Delgado called the Association patrol and a guard came to the scene. Once Delgado was able to pull into the garage, she felt she could not get out of the car because Phillips was standing there staring at them with a hateful look. Patrol guard David Marco heard “animated voices” in the garage and went in to investigate. He spoke to both parties and then Delgado‘s family went home via the stairs while Phillips took the elevator.
Following the incident, the Association‘s current general manager, Kathleen Wright, consulted with counsel and then sent a letter to Phillips notifying her that her use of the alleged racial slurs would not be tolerated. She also sent a letter to Delgado letting her know that the Association did not condone Phillips’ behavior and would address it at a hearing. Wright then notified the board, and the board created an executive committee to conduct an investigation. She spoke to witnesses during the investigation and, in the process, learned about the prior incidents involving Jiran, Duren, Mendez, and Hernandez. Eventually, she spoke with almost all of the Association‘s employees and uncovered additional instances of verbal abuse and racial slurs by Phillips. She also learned that Phillips had threatened four employees that they could lose their jobs. Phillips did not participate in the investigation.
After completing its investigation, the board called Phillips to a hearing to discuss its findings. Phillips did not attend. The board then fined Phillips $50.00 for being a nuisance in the garage and temporarily suspended her privileges. Wright subsequently said that she is afraid Phillips will retaliate against her based on her involvement in the case.
F. Interactions Between Phillips and Anderson
Anderson served in the military for 26 years before retiring and taking a job as the director of disaster preparedness with a local fire department. He first encountered Phillips at an executive committee meeting after they were both elected to the Association‘s board in 2016.
Nothing happened until November 2018, when the Oceanside Police Department called Anderson‘s office and asked him to come down to the police station. Thinking it was work-related, he went to the station, only to be confronted with a photograph of himself in his underwear. The officer told him a complaint had been filed against him claiming he masturbated in front of the patio door to a little girl in the yard. At that point he realized the photograph must have come from the woman who sat outside his unit for hours. The fire chief then immediately fired Anderson from his job as the director of disaster preparedness.
Thereafter, the district attorney filed a misdemeanor lewd conduct charge against him. Anderson hired a criminal defense attorney and appeared in court. Phillips took the witness stand, but after she made clear that she did not take the photograph and was not there that day, the court eventually dismissed the criminal charges. As a result of the charges, Anderson lost his job, spent $10,000 on legal fees, and suffered significant stress.
Anderson said Phillips showed the photograph of him in his underwear to his fellow homeowners during open board meetings, called him a pedophile, and mailed a copy of the photograph to every homeowner in North Coast Village prior to the November 2018 election in which both Phillips and Anderson were seeking reelection. Anderson won reelection “in a landslide” and Phillips lost.
Phillips persisted in raising the issue. Wright recalled that the first time she met Phillips was when Phillips stood up at the 2019 annual Association meeting attended by many homeowners, displayed Anderson‘s photograph, and yelled about him being a pedophile. As a result of the disruption, the meeting was adjourned. Valenti testified that Phillips would show up at every board meeting after the criminal charges were filed and call Anderson a pedophile in front of all the homeowners. Prior to the 2020 board elections, Phillips distributed a flyer stating, “the person exposing himself was not found to be innocent” and then directing anyone exposed to this individual‘s “lewd conduct” to report it to management, the police, and the district attorney.
After the criminal charges were dropped in 2018, Phillips began walking by Anderson‘s condominium daily, fists jammed in the pockets of her hoodie,
In response to the incident, Anderson said, “I was shocked. I was dumbfounded. I was angry. I was reminded yet again of these ridiculous claims against me that have now been perpetuated over a two-year period of time. [¶] I was somewhat traumatized . . . .” He called the security patrol and then 911.
On the morning of January 16, 2021, Anderson and his fiancée were again drinking coffee on the patio of his condominium when Phillips walked by with her hands shoved in the pockets of her hoodie, “menacingly staring” as she walked by. After she exited the Association property‘s gate about 60 feet away and out of Anderson‘s sight, she started yelling, “He‘s threatening me. He‘s going to hurt me. Please, someone stop him. Stop him immediately.” Anderson‘s fiancée peeked around the bush and saw Phillips “talking to nobody” and then apparently calling law enforcement. In response, Anderson said he “just started giggling” because he was wondering “what in the world is she doing now[?]” When law enforcement officers came to interview him about Phillips’ allegation that he was threatening her with grievous bodily harm, Anderson laughed and said, “You got to be kidding me. This is ridiculous.” Anderson said he did not feel threatened at that time and no arrests were made following this incident.
After that, Phillips continued to walk by his condominium almost every day—at least a hundred times according to Anderson—constantly muttering. This persisted even after the Association obtained a temporary workplace violence restraining order against her on February 4, 2021. On one occasion, he heard Phillips say “you mother fucker, I‘m going to get you if it‘s the last thing I do.” He said she appeared to be filming him as she walked by.
Anderson stated that he fears Phillips “every minute” because she is “unpredictable” and “erratic.” As a result of her conduct, he refuses to have his grandchildren over, and he sold his home of 23 years and moved to an undisclosed location within North Coast Village. He said Phillips’ conduct has impacted his health, resulting in considerably higher blood pressure and stress and three operations he believes to be a direct result of her intimidation. He said all of his health conditions are stress related.
On February 4, 2021, the Association filed a petition for a workplace violence restraining order alleging that Phillips had been “harassing, stalking, and [] caus[ing] emotional injury to [the Association‘s] employees.” The Association checked boxes on the form indicating Phillips had (1) “[a]ssaulted, battered, or stalked the employee” and (2) “[m]ade a credible threat of violence against the employee by making knowing or willful statements or engaging in a 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.” Although Anderson is “the employee” designated, the Association attached declarations from multiple employees listed as additional protected persons. It also alleged that “Phillips has verbally assaulted the protected persons; she hit one employee and shoved another employee; she has been creating a hostile work environment for the employees and Association Board Members since 2018; [s]he has disrupted Board Meetings, and has been sending harassing messages by phone, mail, or [email], over a period of time.”
The Association requested several forms of relief. It asked that Phillips be prohibited from engaging in any of the statutorily prohibited behavior set forth in
On February 4, 2021, the trial court issued a temporary workplace violence restraining order (TRO) prohibiting Phillips from harassing, making threats, or otherwise contacting the protected employees; coming within six feet of
H. Phillips Violates the Temporary Restraining Order
Police arrested Phillips on March 29, 2021, for violating the TRO after she approached and spoke with protected employees at the patrol office.
On April 3, 2021, Anderson filmed Phillips again walking by his unit with her phone facing him and he called the police because he believed filming him violated the TRO. After watching the video, officers arrested Phillips.
I. The Workplace Violence Restraining Order Hearing and Order
On August 9, 2021, the trial court began a three-day hearing on the Association‘s requested workplace violence restraining order. During the direct examination of Anderson, the court inquired as to whether the grass outside Anderson‘s patio was a common area, in what ways the other employees listed as protected parties were threatened, what kind of sanctions were imposed on Phillips by the executive committee, and under what authority the penalties were imposed. Anderson attempted to answer the questions, but Association counsel explained that he intended to offer evidence as to the penalties via Wright‘s subsequent testimony.
Between the direct and cross-examination of Anderson, the court asked for details about the two instances when Phillips violated the TRO. While counsel was cross-examining Anderson, the court asked Anderson if he was an employee and whether Phillips was on public property during the April 3, 2021 incident. During cross-examination regarding the Delgado incident, the court asked Anderson whether Philips was on his property on December 23, 2020. The court acknowledged it was “jumping around” and apologized for “throwing everybody a curve ball.”
While Valenti was testifying, the court responded to an earlier question by the Association‘s counsel and indicated he probably would not allow closing arguments. The court said it had already prepared 10 pages of its order and noted that “any appellate issues are going to . . . stick out with both of you [counsel] like a sore thumb.”
On the final day of the hearing, Valenti concluded his testimony and then the Association‘s counsel began examining Wright. The court asked her by what authority she and the executive committee could investigate Phillips
The court reminded everyone before the lunch break that it was the last day of the hearing. After the lunch break, counsel for Phillips conducted her cross-examination of Wright. She then moved for a directed verdict on the workplace violence restraining order petition, which the court denied. The court then said it wanted to “lay some groundwork” for Phillips’
testimony so they would conclude the matter on time, and it could read portions of the 13-page order it had already drafted. The court made clear that it was not interested in hearing about the incidents with Duren, Jiran, Mendez, or Delgado because they were not important for what it intended to do. Instead, the court asked counsel to focus on the December 23, 2020, and January 16, 2021 incidents involving Anderson, the issues Phillips had with the board
In trying to clarify the parameters the court was setting on her examination of Phillips, her attorney pointed out that they had spent three days hearing the Association‘s witnesses, and her client wanted an opportunity to respond during the final hours of the hearing.
After Phillips testified regarding the impact of the TRO on her life, the court apologized that the TRO was in effect much longer than it should have been due to pandemic-related delays.4 Phillips asserted she was not on Anderson‘s patio on December 23, 2020, and was on a public sidewalk on January 16, 2021. Regarding the criminal charges, Phillips said the homeowner who made allegations against Anderson asked her for help and requested that she take the report to the police station. She viewed the restraining order as retaliation for cooperating with the district attorney in the criminal case against Anderson and for questioning the Association‘s financial practices. Phillips then denied having met most of the witnesses and said she never used racial slurs or shouted at anyone.
After the Association‘s counsel cross-examined Phillips, the court said it would not allow closing arguments from either side. It then immediately read most of its prepared order into the record.
In its order, the trial court concluded that it had the ability to view the matter as a request for a civil harassment restraining order under
The court did not find Phillips credible but said her statements at board meetings critical of Anderson and Valenti, including calling Anderson a pedophile, were made in connection with the management of the homeowner‘s association and, therefore, were protected speech. As a result, it concluded the Association was “not a proper petitioner for purposes of restraint of [Phillips].” The court then addressed whether any of the other testifying witnesses—Duren, Jiran, Mendez, Hernandez, Marco, Delgado, or Valenti—were entitled to an individual restraining order under
The civil harassment restraining order the court issued under
DISCUSSION5
I. The Trial Court Abused its Discretion by Sua Sponte Amending the Cause of Action and Petitioning Party Without Notice
Phillips asserts three grounds supporting her argument that the trial court erred in reforming the pleadings. First, she contends it was improper for the trial court to impose a civil harassment restraining order—a remedy outside of the pleadings—when the Association never moved to amend. Second, Phillips highlights that the mandatory Judicial Council forms specific to
A. Legal Standard
“It is well established that leave to amend a complaint is entrusted to the sound discretion of the trial court, and that the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse of discretion.” (McMillin v. Eare (2021) 70 Cal.App.5th 893, 909 (McMillin).) This discretion extends to requests to amend both the causes of action and the parties. In particular,
Such amendments generally may occur “at any time before or after commencement of trial, in the furtherance of justice” (
The trial court also “may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue.” (
The challenge both the parties and this court face in applying existing legal precedent to this appeal is that the statutes and caselaw address motions by parties to amend the pleadings, but here neither party requested the amendments or relief afforded by the trial court. Because the trial court substituted one form of restraining order for another, a further confounding factor is that the case involves simultaneous amendments of both the cause of action and the remedy. Ultimately, resolution of this appeal requires us to evaluate where the line is properly drawn between judicial discretion to sua sponte amend the pleadings and craft corresponding relief, and the impacted party‘s due process right to notice of the allegations against them and a reasonable opportunity to defend.
The Association asserts that the trial court‘s authority to amend is well established. But the Association relies upon precedent discussing the court‘s authority to allow amendment and to do so earlier in the proceedings. Only in the cases of McMillin v. Eare (2021) 70 Cal.App.5th 893 (McMillin) and Mac v. Minassian (2022) 76 Cal.App.5th 510 (Mac) do we find guidance in addressing a trial court‘s sua sponte, post-trial amendment of the relevant pleadings. In McMillin, a wife, the husband she was in the process of divorcing, and the husband‘s mother disputed ownership of two parcels of real property. (McMillin, at p. 898.) One of the mother‘s claims at trial was for constructive trust. (Id. at p. 907.) Because constructive trust is a remedy, not a cause of action, the trial court sua sponte amended the mother‘s complaint to include a cause of action for breach of fiduciary duty. (Ibid.) However, it did not do so until its post-trial tentative statement of decision. (Id. at p. 908.) The court then found that the wife owed fiduciary duties to the mother and breached those duties on several occasions. (Id. at p. 907.)
On appeal, the wife argued the court had not simply renamed an existing cause of action with the amendment but created a new and different claim. (McMillin, supra, 70 Cal.App.5th at p. 908.) Because the facts asserted in the mother‘s complaint did not reasonably put her on notice of a potential breach of fiduciary duty claim, she argued she was prejudiced by the lack of opportunity “to respond, prepare, and defend, as she would have introduced additional evidence/testimony about whether she even owed a fiduciary duty, as well as a statute of limitations defense.” (Id. at p. 909.)
In addressing the issue, the reviewing court focused on whether the amendment was supported by the alleged facts and legal theories pled in the complaint, such that the wife would reasonably have been put on notice of a claim for breach of fiduciary duty. (McMillin, supra, 70 Cal.App.5th at
p. 910.) Finding neither the complaint nor the mother‘s evidence offered facts
In Mac, the Second District recently reached a similar conclusion when confronted with an analogously unusual situation. There, the plaintiffs filed suit against an individual and his company for breach of contract and failure to repay money due under promissory notes. (Mac, supra, 76 Cal.App.5th at p. 513.) Pursuant to a stipulation the parties belatedly realized had never been signed by the court, one plaintiff filed a fourth amended complaint removing the individual defendant as a party. (Id. at p. 514.) The remaining defendant answered the fourth amended complaint and the parties proceeded with a two-day bench trial. (Id. at pp. 514–515.) The day after trial, the plaintiff filed a motion for leave to file a fifth amended complaint, seeking to add back the individual defendant. (Id. at p. 515.) The trial court denied the motion stating, “[p]ermitting an amendment to add a defendant dismissed before trial when trial has now already been concluded can only be prejudicial to that defendant because there is no opportunity for the defendant to present a defense.” (Ibid.) However, despite its ruling, the court then issued a statement of decision making findings against the individual defendant and entering a substantial judgment against him. (Id. at pp. 515–516.)
On appeal, the reviewing court concluded that adding the individual defendant back into the case after trial was “prejudicial to his due process rights.” (Mac, supra, 76 Cal.App.5th at p. 519.) It noted that nothing during the trial put him on notice that the trial court viewed him as a party. (Ibid.) Further, the reviewing court stated that, had he known he could be held personally liable, the defendant may have conducted discovery, answered, brought motions, or participated in the trial as a defendant. (Id. at p. 520.) It explained that “California courts have denied leave to amend where the proposed amendment to the complaint is during or after trial, and the
Assuming the trial court had discretion to sua sponte amend the pleadings in the present case, we conclude Phillips was similarly denied due process protections when the court did so at the conclusion of the case without prior notice. Similar to Mac, the fact that Anderson was not listed as a party is a significant factual omission that deprived Phillips of notice that the court might amend the pleadings and enter a civil harassment restraining order against her. A petition for a workplace violence restraining order may only be brought by an employer (
This situation also is distinguishable from the cases cited by the Association where the real party in interest was substituted in to replace a plaintiff who lacked standing. In those cases, the substitution allowed maintenance of the same claim of liability, of which the responding party already had notice, on the same facts. (Cf. Klopstock v. Superior Court (1941) 17 Cal.2d 13, 21 [authorizing administratrix of the estate of a deceased stockholder to substitute in “on behalf of the corporation to enforce against the defendants exactly the same liability which is the basis for the relief now sought on behalf of the corporation” where the defendants had been on notice since the filing of the original complaint of the facts relied upon to state a right to relief on behalf of the corporation]; Jensen v. Royal Pools (1975) 48 Cal.App.3d 717, 720 [allowing individual condominium owners to replace condominium owners’ association that lost standing after filing of the case in seeking to recover damages to
The breadth of behavior subject to restriction under section 527.8 also is narrower than that covered by section 527.6, meaning the section 527.8 petition did not put Phillips on notice to engage in discovery of certain facts or prepare appropriate defenses. While “[s]ection 527.8 was enacted in 1994 to establish parallel provisions to section 527.6. . . . [and] was thus intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons”7 (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333–334 (Scripps Health)), the statutes are not identical. As the trial court in this case acknowledged, section 527.8 is much narrower than section 527.6. (Cf. City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627 (City of Los Angeles) [“the circumstances under which an individual may obtain a section 527.6 civil harassment restraining order are, in fact, broader than an employer‘s right to a workplace violence restraining order under section 527.8“].)
Specifically, unlike section 527.8, section 527.6 allows restraint based upon harassment, defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” (
Furthermore, even though the trial court stated before the end of testimony on the last day of the hearing that it was also considering a restraining order under section 527.6, it did not issue a tentative ruling expressly denying the workplace violence restraining order or explaining its thinking such that the parties could effectively prepare. First it said, “we are here on a workplace violence injunction or request thereof, and arguably we are also here on a civil harassment as an individual violation or at least that is how I am viewing it, even though it was not particularly pled in that situation.” (Italics added.) This gave counsel for Phillips some indication she should address a civil harassment restraining order without sufficient notice, but also suggested she should use some of the limited time the court afforded her to defend against the workplace violence restraining order. Then, the trial court further obscured its intended ruling by denying Phillips’ motion for a directed verdict. This suggested the court found some merit to the workplace violence restraining order petition. The court then stated that it did not intend to explain its reasoning until after the hearing, commenting “I do believe that may be an issue for appellate review, but I will explain that all when I get to my ruling.” In other words, although the parties had some indication on the last day of the hearing that the court was considering amending the complaint, as in McMillin, the court did not actually sua sponte amend the complaint until after conclusion of the trial. (McMillin, supra, 70 Cal.App.5th at p. 910.)
Accordingly, we conclude the same due process concerns raised in McMillin and Mac apply here. Even though the proceeding for obtaining a civil harassment restraining order is not intended to be a full trial on the merits, the hearing “provides the only forum the defendant in a harassment proceeding will have to present his or her case.” (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 732–733.) Thus, the defendant‘s due process rights are infringed when the defendant‘s right to present evidence and cross-examine witnesses is unduly limited. (See id. at p. 733.)
Had the Association sought to amend the complaint after the hearing concluded, statutory authority likely would have mandated denying the request because of the lack of pre-hearing notice to Phillips. (See
While we appreciate the trial court‘s effort to promote judicial efficiency, particularly where it was mindful that pandemic delays had resulted in the TRO remaining in effect far longer than the maximum of 25 days authorized by section 527.8 (see
Because Phillips did not have adequate notice of the amendments to the named parties, cause of action, or remedy until the court issued its ruling after the hearing, she was unfairly prejudiced in her ability to defend her interests. (See McMillin, supra, 70 Cal.App.5th at pp. 913–914.) Accordingly, we conclude the court abused its discretion in granting a civil harassment restraining order in favor of Anderson.8
II.
The Trial Court Erred in Interpreting and Applying Section 527.8
On cross-appeal, the Association argues the trial court misinterpreted and misapplied section 527.8. It contends the trial court erred in concluding that section 527.8 did not apply to the December 23, 2020, and January 16, 2021 incidents because (1) Phillips was standing on public versus Association property, and (2) Anderson was not acting in his official capacity as a board member at the time of the incidents.
We independently review claims challenging a trial court‘s construction of a statute. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) Likewise, in reviewing mixed questions of law and fact where we must address whether the lower court properly applied the rule to the facts, if “the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed
We turn first to whether section 527.8 supports the distinction drawn by the court regarding where Phillips was standing on December 23, 2020, and January 16, 2021. “Under settled canons of statutory construction, in construing a statute we ascertain the Legislature‘s intent in order to effectuate the law‘s purpose. [Citation.] We must look to the statute‘s words and give them ‘their usual and ordinary meaning.’ [Citation.] ‘The statute‘s plain meaning controls the court‘s interpretation unless its words are ambiguous.’ [Citations.] ‘If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute‘s purpose, legislative history, and public policy.’ [Citation.]‘” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.) Section 527.8 allows an employer to seek a workplace violence restraining order protecting an employee who “suffered unlawful violence or a credible threat of violence” that can reasonably be construed to “have been carried out at the workplace.” (
In this case, Anderson testified that he considers his home to be his office, and he will respond to Association needs 24 hours a day if he is needed. He also testified residents approach him in the community to ask him questions or talk to him “all the time” and at all different hours. When asked “Do staff or management call you at various times to discuss association business with you?” he replied, “[a]ll the time” and indicated that the calls are “[o]ften after work hours.” Within this context, the plain language of the statute appears to encompass Phillips’ stalking or threatening of Anderson at his home and at all hours because his home was also his workplace, and he did not have a set work schedule.
But some ambiguity remains as to whether the definition of “workplace” includes a home office when the individual is not actively engaged in work at the time. The parties did not provide any authority defining the parameters of the workplace and we have found only one case addressing the issue. In City of Los Angeles, supra, 135 Cal.App.4th at pages 606, 610, 626, animal rights activists protested at a city employee‘s home and displayed red targets and bullet holes next to his name in online postings. The court concluded that
The bill‘s author explained that “[t]he purpose of this bill is to protect employees from violence in the workplace,” (italics added.), it “provides employers another weapon by which they may attempt to combat workplace violence,” and it creates a provision “employers could use to seek injunctive relief on behalf of employees who are exposed to violence or threats in the workplace” (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 68X (1993–1994 First Ex. Sess.) as amended June 30, 1994, italics added.) Accordingly, it appears the legislature intentionally narrowed the scope of the statute to violence or threats of violence occurring in or near the physical workplace, as opposed to those stemming from the individual‘s employment.
But this does not definitively resolve the issue and we find nothing else in the legislative history or caselaw that provides clear guidance as to whether section 527.8 encompasses protection for those who live at their workplace. In a day and age when a large portion of the workforce works from home, the line between the workplace and home has become increasingly blurred. The boundary also is not clear regarding the trial court‘s other distinction between whether Anderson was acting as an employee at the relevant times or not. Now that many employees have the ability to work from anywhere and even on their phones, employees may alternate between handling personal and work matters throughout the day and night and follow a less defined work schedule than in the past. As a result, the distinction between when someone is and is not functioning as an employee may not always be abundantly clear. To be sure, the trial judge faced the difficult exercise of trying to apply section 527.8 in this context. And this opinion should not be read to unequivocally hold that section 527.8 applies to all actions involving board members or employees who live at their workplace and maintain irregular hours. Ultimately, how this statute is applied in an evolving work environment likely is an issue the legislature will need to revisit. We conclude only that the limitations imposed by the trial court in this case are not supported by the language or history of the statute.
Specifically, Anderson‘s testimony suggests that drawing a line between whether Phillips was standing on the grass or the patio represented a
We also question the legal and factual basis for the court‘s conclusion that “the behavior of [Phillips] was not associated with [Anderson‘s] employment as a member of the Board of Directors.” Anderson only knew Phillips from their service together on the board. No evidence suggested they formed a social relationship prior to or during their time on the board or encountered each other as neighbors. To the contrary, they only crossed paths outside of board meetings because Phillips intentionally walked past his unit on a near daily basis. As the court acknowledged, “she clearly was tracking him down.” The evidence showed she used photographs and criminal reports she obtained to further her goal of having him removed from the board. Thus, substantial evidence does not support a conclusion that she had a reason for targeting him that was not based on his employment as a board member.
The more pertinent legal question is whether, as perhaps the court meant, section 527.8 covered her actions if she targeted Anderson at a time when he did not happen to be engaged in Association work. As we indicated previously, this is a decision better left to the legislature. But if, for example, the employee worked in a more traditional workplace setting such as a corporate office, and an individual routinely followed the employee to and from the office, but happened to make a credible threat of violence while the employee was taking a coffee break in the office kitchen, we find nothing in the statute or history that would prohibit the employer from seeking a workplace violence restraining order to protect the employee. Particularly when the court found that everything Phillips said and did within the context of actual board meetings was protected speech, drawing the line based on what
If we remove the qualifiers regarding where Phillips was standing and in what capacity Anderson was functioning at the time, we unfortunately cannot evaluate whether the trial court‘s finding regarding whether Phillips made a credible threat is supported by substantial evidence because it is not clear if the court made such a finding. The trial court‘s statements regarding whether Phillips made a credible threat of violence appear conflicting. First the court said: “[regarding] the two incidents upon which the court is basing the restraining order i.e., December 23, 2020 and January 16, 2021 the court finds no clear and convincing evidence that respondent engaged in a credible threat of violence or willful course of conduct within the actual physical boundaries of [the Association].” (Italics added.) If we remove the limitations regarding where Phillips was standing at the time of the incidents (“within the actual physical boundaries of [the Association]“), it is not clear if the court found that Phillips made a credible threat or not. The court then stated: “There is no evidence that the activities relating to [Phillips‘] course of conduct and credible threats of violence involve the actual association location or the position of [Anderson] as a member of the board.” (Italics added.) This suggests the court did find that Phillips made a credible threat of violence, even if we disregard the location and status limitations. Finally, the court concluded: “the testimony shows that the behavior of [Phillips] was not associated with [Anderson‘s] employment as a member of the Board of Directors. On the same note, [Phillips‘] behavior did not involve violence and credible threats of violence towards an employee as is required by Code of Civil Procedure [section 527.8].” Since the court found as a matter of law that Anderson was an employee of the Association, this third statement seems to state that even if she made credible threats of violence, they did not fall under the statute because Anderson was not acting in his capacity as an employee at the time. Absent the capacity qualifier, the finding is unclear. In sum, because these ambiguous statements do not provide a sufficient record that would allow us to determine the court‘s holding absent the added limitations regarding location and capacity, remand is appropriate.10
DISPOSITION
The judgment is reversed and remanded. The parties shall each bear their own costs on appeal.
CASTILLO, J.
WE CONCUR:
BUCHANAN, Acting P. J.
KELETY, J.