No.

D059810 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION ONE _____________ Tri-City Healthcare District, Petitioner/Appellant/Cross-Respondent v. Kathleen Sterling, Defendant/Respondent/Cross-Appellant

Appeal from the Superior Court for San Diego County Superior Court No. 37-2011-00052101-CU-PT-NC (Consolidated with: 52102; 52103; 52104; 52112; 52114) Hon. Richard E. Mills, Presiding _____________ RESPONDENT/CROSS-APPELLANTS BRIEF

___________________________________________________________ Charles M. Kagay SBN 73377 Spiegel Liao & Kagay, LLP 388 Market Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 956-5959 Scott A. McMillan, SBN 212506 The McMillan Law Firm, APC 4670 Nebo Drive, Suite 200 La Mesa, California 91941-5230 (619) 464-1500 x 14

Attorneys for Defendant/Respondent/Cross-Appellant Kathleen Sterling

Certificate of Interested Entities or Persons (Cal. Rules of Court, rule 8.208) There are no interested entities or persons to list in this certificate. (Cal. Rules of Court, rule 8.208(e)(3).) DATED: April 25, 2012 Spiegel Liao & Kagay, LLP

By______________________ Charles M. Kagay Attorneys for Defendant/ Appellant/Cross-Respondent Kathleen Sterling

Table of Contents

I. II.

INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Nature of Action, Relief Sought, and Judgment Appealed From. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. C.

RESPONDENTS BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. II. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. B. C. Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . 16 TCHD Failed to Request a Statement of Decision.. . . 17 TCHD Improperly Bases Its Challenges on the Trial Courts Statements from the Bench. . . . . . . . . . . . . . . 18 Note on Citations to the Record. . . . . . . . . . . . . . . . . . 22 The Trial Courts Exclusion of Hearsay Evidence Cannot Be a Basis for Reversal. . . . . . . . . . . . . . . . . . 23 1. The Exclusions TCHD Complains Of Are Quite Limited. . . . . . . . . . . . . . . . . . . . . . . . . . . 23 TCHD Waived Its Argument Against the Hearsay Rulings by Failing to Make It to the Trial Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 i

D. E.

2.

3.

TCHD Cannot Show Prejudice from the Hearsay Rulings. . . . . . . . . . . . . . . . . . . . . . . . . 28

F.

The Trial Courts Definition of Battery Cannot Be a Basis for Reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 The Trial Courts Observation that Mr. Crooks Did Not Fear Ms. Sterling Cannot Be a Basis for Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 1. TCHDs Lengthy Argument About a Showing of Fear Is Irrelevant to the Outcome of this Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 TCHDs Argument that Irreparable Injury Need Not Be Shown Runs Counter to Established Law. . . . . . . . . . . . . . . . . . . . . . . . . 45 a. Private Parties Must Show Irreparable Injury to Obtain a Statutory Injunction46. . . . . . . . . . . . . . . . . . . . . . . . . . The Gdowski Decision Does Not Support TCHDs Position. . . . . . . . . . . . 50 The Legislative History Does Not Support TCHDs Position. . . . . . . . . . . . 54

G.

2.

b.

c.

H.

TCHDs Arguments for Reversal of the Trial Courts Decisions on the Other Petitions Have Even Less Merit than Its Arguments on the Crooks Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

III.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

CROSS-APPELLANTS OPENING BRIEF. . . . . . . . . . . . . . . . . . 57 I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ii

II.

SUPPLEMENTAL STATEMENT OF THE CASE CROSS-APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 A. B. C. Appealability of Judgment. . . . . . . . . . . . . . . . . . . . . . 58 Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Additional Statement of Facts Pertinent to CrossAppeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

III.

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 A. B. C. Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . 62 The Four Requirements of Section 1021.5.. . . . . . . . . 62 The Trial Courts Narrow Analysis Did Not Properly Identify the Rights under Attack in these Actions. . . . 63 Ms. Sterlings Victories Enforced an Important Right Affecting the Public Interest.. . . . . . . . . . . . . . . 69 Ms. Sterlings Victories Conferred a Significant Benefit on the General Public.. . . . . . . . . . . . . . . . . . . 75 The Necessity and Financial Burden of Private Enforcement Made a Fee Award Appropriate. . . . . . . 79

D.

E.

F.

IV.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

CERTIFICATE OF WORD COUNT .. . . . . . . . . . . . . . . . . . . . . . . 86 CERTIFICATE OF SERVICE RULE 8.204(d) Attachment (Trial Exhibit 3) . . . . . . . . . . . . . . Tab A

iii

Table of Authorities

Cases

Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672. . . . . 77 Bond v. Floyd (1966) 385 U.S. 116.. . . . . . . . . . . . . . . . . . . . . . . . . 71 California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419. . . . . . . . . . . . . . . . . . . . 47, 48 California Common Cause v. Duffy (1987) 200 Cal.App.3d 730. . 73 Cassim v. Allstate Ins. Co. (2004) 33 Ca1.4th 780. . . . . . . . . . . . . . . 5 City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287.. . . . . . . 81 City of San Jose v. Garbett (2010) 190 Cal.App.4th 526. . . . . . . . . 46 Cohen v. Board of Supervisors (1985) 40 Cal.3d 277. . . . . . . . . . . 49 County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 81 DVD Copy Control Assn. Inc. v. Bunner (2004) 116 Cal.App.4th 241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-49 DVD Copy Control Assn., 116 Cal.App.4th 241. . . . . . . . . . . . . . . 48 Edgar v. W.C.A.B. (1998) 65 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . 54 Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal. App. 4th 1561. . . . . . . . . . . . . . . . . . . . . . . . . 73

iv

Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Gdowski v. Gdowski (2009) 175 Cal.App.4th 128. . 21, 46, 48, 50, 51 Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359. . . . . . . . . . . . . . . . . . . . . . . . . . 56 Hull v. Rossi (1993) 13 Cal.App.4th 1763. . . . . . . . . . . . . . . . . 73, 80 In re Conservatorship of Whitley (2010) 50 Cal.4th 1206. . . 58, 82-84 In re K.A. (2011) 201 Cal.App.4th 905.. . . . . . . . . . . . . . . . . . . . . . . 2 In re Marriage of Davenport (2011) 194 Cal.App.4th 1507. . . . . . . 5 In re Marriage of Ditto (1988) 206 Cal.App.3d 643. . . . . . . . . 19, 20 In re Marriage of Green (1989) 213 Cal.App.3d 14. . . . . . . . . . . . 19 In re Marriage of Van Hook (1983) 147 Cal.App.3d 970. . 46, 48, 49 Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 37 Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Leach v. City of San Marcos (1989) 213 Cal.App.3d 648. . . . . . 47-49 Lindgren v. Baker Engineering Corp. (1988) 197 Cal.App.3d 1351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Lorenzana v. Superior Court (1973) 9 Cal.3d 626. . . . . . . . . . . . . . 27

MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Metropolitan Culinary Services, Inc. v. County of Los Angeles (1998) 61 Cal.App.4th 935. . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Monterey/Santa Cruz County Bldg. and Const. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 150077. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pacific Hills Homeowners Assn v. Prun (2008) 160 Cal.App.4th 1557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Paul v. Wadler (1962) 209 Cal.App.2d 615. . . . . . . . . . . . . . . . . 46-49 Pellegrino v. Robert Half Intern., Inc. (2010) 182 Cal.App.4th 278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Fauber (1992) 2 Cal.4th 792.. . . . . . . . . . . . . . . . . . . . . . 27 People v. Frye (1985) 166 Cal.App.3d 941. . . . . . . . . . . . . . . . . . . 27 People v. Lara (1996) 44 Cal.App.4th 102.. . . . . . . . . . . . . . . . . . . 39 People v. Mansfield (1988) 200 Cal.App.3d 82. . . . . . . . . . . . . 39, 40 Powell v. McCormack (1969) 395 U.S. 486. . . . . . . . . . . . . . . . . . . 71 Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311. . . . . . . . . . . . . . . 73 Rich v. City of Benicia (1979) 98 Cal.App.3d 428. . . . . . . . . . . . . . 76 Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382. . . . . 72 Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143. . . . . . . . . . . . . . . . . . . . . . . . . 77 Russell v. Douvan (2003) 112 Cal.App.4th 399. . . . . . . . . . . . . . . . 46

vi

Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728. . . . . . . 5 Scripps Health v. Marin (1999) 72 Cal.App.4th 324. . . 45, 46, 50, 51, 54, 55 Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229. . . 19, 20, 28 Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Smith v. City of Napa (2004) 120 Cal.App.4th 194. . . . . . . . . . 19, 21 Vacca v. Barletta (D. Mass. 1990) 753 F.Supp. 400. . . . . . . . . . . . 72 Velez v. Levy (2d Cir. 2005) 401 F.3d 75. . . . . . . . . . . . . . . . . . . . . 72 Wal-Mart Real Estate Business Trust v. City Council of City of San Marcos (2005) 132 Cal.App.4th 614.. . . . . . . . . . . . 73, 80 Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443. . . . . . . . 20 Wilson v. San Luis Obispo County Democratic Cent. Com. (2011) 192 Cal.App.4th 918. . . . . . . . . . . . . . . . . . . . . . . 74, 76, 77, 84 Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 83

Statutes

Business and Professions Code 8658. . . . . . . . . . . . . . . . . . . . . . 53 Business and Professions Code 25602.2. . . . . . . . . . . . . . . . . . . . 53 vii

Code of Civil Procedure 525.. . . . . . . . . . . . . . . . . . . . . . . . . 52, 53 Code of Civil Procedure 526.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Code of Civil Procedure 527.. . . . . . . . . . . . . . . . . . . . . . . . . 52, 53 Code of Civil Procedure 527.8. . . 1, 26, 27, 43, 45, 47, 50, 51, 5355, 67 Code of Civil Procedure 631.8. . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Code of Civil Procedure 904.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Code of Civil Procedure 1021.5.. . . . . . . . . . . . . . . . . . 2, 57, 62, 80 Code of Civil Procedure 1281.8.. . . . . . . . . . . . . . . . . . . . . . . . . . 52 Evidence Code 354.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Food and Agriculture Code 19443.. . . . . . . . . . . . . . . . . . . . . . . . 53 Food and Agriculture Code 77863.. . . . . . . . . . . . . . . . . . . . . . . . 53 Food and Agriculture Code 77863.. . . . . . . . . . . . . . . . . . . . . . . . 52 Health and Safety Code 1595.5.. . . . . . . . . . . . . . . . . . . . . . . . . . 53 Health and Safety Code 1641.1.. . . . . . . . . . . . . . . . . . . . . . . . . . 53 Health and Safety Code 11838.3. . . . . . . . . . . . . . . . . . . . . . . . . . 53 Welfare and Institutions Code 15657.03. . . . . . . . . . . . . . . . . 50, 51

viii

Miscellaneous

6 Witkin, Cal. Proc. 5th (2008) Prov Rem, 295.. . . . . . . . . . . . . . 49

ix

I.

INTRODUCTION Appellant Tri-City Healthcare District (TCHD), acting on behalf

of certain of its employees and Boardmembers, brought eight meritless petitions for injunctions against workplace violence against Respondent and Cross-Appellant Kathleen Sterling. The reason for this legal bombardment is that Ms. Sterling is a dissident member of its Board of Directors whom its management and Board majority are trying, in every way they know how, to silence. That is why they have pursued an appeal that, on analysis, cannot identify even colorable error in the court below. And that is why the trial courts order denying Ms. Sterling private attorney general attorneys fees, the subject of the cross-appeal, was an error of law. II. STATEMENT OF THE CASE A. Nature of Action, Relief Sought, and Judgment Appealed From

In the primary appeal, appellant TCHD seeks to overturn the trial courts denial of six of the eight permanent restraining orders it sought against respondent Kathleen Sterling under Code of Civil Procedure section 527.8 (the other two having been voluntarily dismissed at trial).

After the denial of TCHDs petitions, Ms. Sterling moved for an award of attorneys fees pursuant to Code of Civil Procedure section 1021.5, which the court denied. In the cross-appeal, cross-appellant Sterling seeks to overturn the denial of her attorneys fee motion. B. Statement of Facts 1. TCHDs One-Sided Factual Recitation

TCHDs Statement of the Facts is essentially meaningless on this review of the judgment against it. It briefly acknowledges in a footnote that appellate review of the trial courts decision must be performed on the substantial evidence standard. Under this standard, the usual rule of conflicting evidence is that the appellate court will giv[e] full effect to the respondents evidence, however slight, and disregard[] the appellants evidence, however strong. (In re K.A. (2011) 201

Cal.App.4th 905, 909.) TCHD nevertheless represents that it is setting forth the evidence for both sides. (AOB1 at 4 n. 1.) In reality, TCHD seems to have the usual rule backwards; its factual recitation is overwhelmingly slanted to state all evidence in the light most favorable to its position, while giving short shrift to any unfavorable evidence. It is an interesting exercise to skim the citations
1

Appellants Opening Brief is cited as AOB. 2

in the Opening Briefs Statement of Facts at pages 4 to 10, bearing in mind that TCHDs evidence appears in volumes 1 and 2 of the reporters transcript, and Ms. Sterlings in volumes 3 and 4. One almost needs a microscope to discern any evidence that Ms. Sterling presented. (See, AOB at 6 (last paragraph), 9 (last paragraph).) Apparently, evidence for both sides mostly means evidence for appellants side. For example, TCHD provides a feverish description of alleged misconduct by Ms. Sterling in May 2010 through January 2011. (AOB at 4-7.) However, the trial court confidently found that nothing occurred prior to February 24, 2011 that could potentially support a restraining order. (5 RT 3:25-4:1.) TCHD does not contend that substantial evidence fails to support that conclusion. Similarly, TCHD headlines its discussion of the key events addressed at trial as: Sterling barges into the Board meeting room and attacks Crooks and other security guards. (AOB at 7.) This ignores Mr. Crooks own testimony about the incident: Q. Was she trying to attack you? A. No, I didnt I would not interpret it as that. (1 RT 44:5-6.) Having reviewed all the evidence, the trial court not surprisingly concluded: The Court does not believe there was an attack 3

on Petitioner Crooks. (5 RT 7:9-10.) Again, TCHD does not contend that substantial evidence fails to support the trial courts conclusion. TCHD also characterizes a second interaction that same day as, [Ms. Sterling] attacks Crooks again in an effort to get back into the meeting room. (AOB at 9-10.) Again, the trial court found there was no attack. (5 RT 12:14-13:19.) And again, TCHD does not contend that substantial evidence fails to support this conclusion. In denying six petitions for restraining orders, the trial court detailed the evidence and the credibility of the witnesses at trial. (See, 5 RT 1:1-14:27.) The court found that much of TCHDs evidence involved minor interactions, which different witnesses described differently. TCHD ignores the courts credibility determinations, and argues facts based on witness testimony that was contradicted, even by its own witnesses. Overall, the trial court concluded: Most of the things complained about by the Petitioners were trivial and inconsequential. (5 RT 5:5-7.) Although TCHD does not attempt to disagree with this conclusion, one would never discern the basis for it from the Opening Briefs tabloidlike exposition of the facts.

An appellant is required to accurately and fairly state the material facts and law. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.) Where a party presents only facts and inferences

favorable to his or her position, the contention that the findings are not supported by substantial evidence may be deemed waived. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 (quotation marks omitted).) TCHD cites Cassim v. Allstate Ins. Co. (2004) 33 Ca1.4th 780, 801-803, to justify its one-sided evidentiary recitation. (AOB at 4 n. 1.) That case holds that, in evaluating a contention that an attorneys closing argument was prejudicial misconduct, an appellate court will [e]xamin[e] the entire case, including the evidence adduced, the instructions delivered to the jury, and the entirety of [counsels] argument . . . . (Id. at 802.) It does not hold that an appellate court will review a decision, for any purpose, by looking only at the evidence the appellant considers favorable. 2. Full Factual Recitation

Although on this appeal of judgments in Ms. Sterlings favor, the court could ignore evidence supporting TCHDs position so long as

substantial evidence support Ms. Sterlings position, the following will lay out key evidence presented by both sides. TCHD appropriately divides its factual narrative into two parts events before February 24, 2011, and events on that date. With respect to the earlier events, the trial court ultimately concluded: Each Petitioner has issues with Sterling that predate the 2-24-11 Board meeting. Before that meeting, none of the Petitioners . . . could have obtained a restraining order. . . . I am confident that thats true. (5 RT 3:25-4:1) One need look no further than TCHDs own description of these events (AOB at 5-6) to appreciate why the trial court had to come to that conclusion. Even if everything TCHD says about Ms. Sterling were true, its rendition of the facts shows only that the TCHD Board repeatedly censured her for things she said that they found offensive, not for committing or threatening violence. (Ibid.) The only physical action they claimed she took against another person is a physical tug-of-war with Tri-City CEO Larry Anderson, about which the trial court observed: [T]his was such an inconsequential event that it requires no further discussion, is not a basis for any action by Anderson.

(5 RT 7:5-8.) As TCHD notes, Ms. Sterling denied under oath the accusations of the TCHD witnesses. (AOB at 6-7.) Nothing TCHD alleges for the pre-2/14/11 period even approaches violence or a credible threat of violence. The trial court concluded: Ms. Sterling made no verbal threats to any petitioner or to anyone else. Some of the language she used was perhaps undesirable or offensive, but there were no verbal threats either direct or indirect. (5 RT 4:26-5:1.) Thus, although TCHD argues that [o]ver the previous years, Sterling had belittled, insulted, and mistreated Tri-City employees and her fellow Board members (AOB at 2), it does not try to suggest that any of those actions merited an injunction under section 527.8. Rather, it says, [a]t a February 24, 2011 Board meeting, Sterling twice had physical confrontations with Tri-City security personnel, and [e]vidence about the two confrontations was central to the restraining order petitions. (Ibid.) In fact, though, the February 24 incidents were merely a pretext for these petitions. The evidence presented at trial showed that the Board had already drafted a resolution well in advance of the February

24 meeting to seek restraining orders against her. (2 RT 149:1-9, 152:10-14, Trial Exhibit 3', attached as Tab A.) Now that pretext is the entirety of TCHDs case for anti-violence injunctions against Ms. Sterling. Its claim for injunctions stands or falls on convincing this Court that the trial court misinterpreted the import of the two February 24, 2011 incidents. (AOB at 7-10.) However, the trial court made pointed findings of what happened at those incidents, strongly supported by substantial evidence. TCHD presented evidence about the incidents that was inconsistent, contradictory, and often fanciful. With respect to the first incident, the court found: Five minutes before the meeting Sterling entered the room. Security guards, including Crooks, blocked her advance into the room. She tried to walk around them, but they moved and continued to block her advance. At most, Sterling bumped into Crooks. It was not hard enough to move him. There was absolutely no injury. (5 RT 11:2-8.) Her intention was clearly to get around the guards again before the meeting, not to come into contact with them. (5 RT 12:7-13.) Regarding the first incident, Ms. Sterling testified quite directly that she did not try to hit anybody and she did not bump anybody; rather, 8

TCHD security guard Craig Lawyer shoved her. (3 RT 510:22-511:6.) Throughout the incident, Ms. Sterling testified, she did not touch anyone. (3 RT 513:16-24.) Richard Rivero, a private investigator employed by Ms. Sterling who witnessed the incident, testified that two TCHD security officers blocked Ms. Sterlings path, then bumped, grabbed, and shoved her to guide her out of the meeting room, while she protested that she had a right to be in the room because the meeting had not started. (3 RT 344:5-348:5.) TCHDs security officer Richard Crooks told the story differently. He said that he and other officers formed a line to block Ms. Sterling from entering the meeting room, and that she pushed them in an attempt to work her way around the line. (1 RT 20:18-21:14.) He conceded that, in bumping him, Ms. Sterling was not trying to attack him but just trying to get to the other side of him. (1 RT 44:1-8.) TCHD attorney and petitioner Matthew Soskins also said he saw Ms. Sterling push one of the security guards. (2 RT 282:5-9.) Mr. Crooks further said that TCHD security chief Craig Lawyer had blood on his sleeve, but that he did not actually see anyone injured in the incident. (1 RT 22:11-28.) TCHDs CEO Larry Anderson testified that he saw Ms. Sterling put her hands on Mr. Lawyer, but was later overheard to say that he had testified 9

falsely because he actually had been unable to see her hands from where he was standing. (1 RT 85:5-17; 3 RT 362:4-12.) Concerning the second incident, the trial court made equally direct findings: Sterling went to the boardroom door and called out for Reno and Karen as was apparently required by Board rules . . . . At some point, according to petitioner Crooks, who gave the most credible account of the event, Sterling stood behind him, reached over his shoulder and took a photo. She touched him enough that he became aware of her presence and instinctively pushed backwards and turned around. This turning action caused Sterlings weight to be on his back while it was twisted. This resulted in a minor muscle strain. The Court does not believe there is proof by clear and convincing amount that an assault or battery took place. Sterlings goal was not to touch Crooks but to converse with Reno or with Karen about the T.V. and to take a photo. More likely than not, the touching was not even intentional but more likely careless. (5 RT 12:22-13:11.) Again, the courts findings were amply supported by the evidence. Ms. Sterlings testimony is that she went to the boardroom door to report that the television on which she had been monitoring the Board meeting had been removed. (3 RT 520:11-521:6.) She did not attempt to enter the room. (3 RT 521:20-21.) Mr. Crooks stood in front of her, while Mr. Soskins took her picture. (3 RT 522:3-11, 523:16-19.) Ms. Sterling 10

then raised her camera to take a picture, and Mr. Crooks raised his arm. (3 RT 523:19-21.) However, Ms. Sterling testified that she did not touch Mr. Crooks, or anyone else, at all. (3 RT 523:21-24, 524:15-21.) Mr. Rivero likewise testified that he witnessed the incident and did not see any physical contact. (3 RT 358:22-359:08.) TCHDs witnesses, on the other hand, gave absurdly inconsistent accounts: Mr. Anderson testified that Mr. Crooks jumped between him and Ms. Sterling, and that Ms. Sterling pushed him, jumped on his back. (1 RT 79:2-8.) However, he also admitted that he didnt physically see the incident. (1 RT 79:12-14.) Boardmember and Petitioner George Coulter testified that at least seven men tried to hold Ms. Sterling back from entering the room, but she pushed the men through the door and knocked Mr. Crooks to the ground. (2 RT 131:27-132:9, 145:8-146:8.) Board chairperson and Petitioner Rosemarie Reno testified that Ms. Sterling pushed Mr. Crooks to the ground and pinned him

11

there with her knee in his back, while he held himself up with one hand. (2 RT 223:19-224:11.)2 Mr. Soskins testified that Ms. Sterling was either like standing on Rick Crooks or floating over him or something. (2 RT 282:28-283:1.)3 TCHDs third-party witness Erick Starck testified that Mr. Crooks did not fall down, but that Ms. Sterling was hopping on top of him with her camera in the air. (4 RT 606:22-607:16.) But Mr. Crooks, the supposed victim of all this mayhem, said nothing about being knocked to the ground or trampled upon. He testified only that he was trying to lock the meeting room door when he felt a large massive weight on my back and it twinged

The trial court said about this testimony:

It is noted significantly that the Petitioner Renos version of the second incident on February 24th, 2011 is so extremely different from everyone elses version that it could not possibly be accurate. Her subjective claim of fear is based on a set of circumstances that she says she witnessed but which clearly did not actually occur. (5 RT 8:15-21.) Mr. Soskins admitted to taking a photograph of the second incident, which he emailed to Mr. Lawyer, but then deleted from his phone. (2 RT 302:6-13.) No such picture was offered at trial. 12
3

my back in terms of pain the massive weight being nothing more than Ms. Sterlings arm, holding a camera. (1 RT 24:9-21.) The foregoing illustrates that not just substantial evidence, but in fact the overwhelming preponderance of the evidence, demonstrated at trial that TCHDs petitions were singularly lacking in merit. C. Procedural History

On March 4, 2011, TCHD filed eight petitions for civil restraining orders against Ms. Sterling. (1 APP 1-200.) TCHD obtained eight ex parte temporary restraining orders at that time. (Ibid.) As the hearings on the permanent restraining orders were set for March 25, 2011, just three weeks later, Ms. Sterling scrambled to obtain legal assistance. TCHD has public funds at its disposal, and assigned three attorneys to pursue Ms. Sterling. (5 RT 4:17-20.) Ms. Sterling had no resources to afford counsel, but The McMillan Law Firm agreed to defend her as part of its practice of providing representations to employees, consumers, and disadvantaged victims in civil rights disputes. (2 RA 818 8-9].)4 Ms. Sterling obtained representation on March 22, 2011, just three days before trial. (Ibid.)

Respondent - Cross-Appellants Appendix will be cited as RA. 13

Ms. Sterling sought a 120-day trial continuance to conduct discovery, which TCHD opposed. (1 RT 1:25-27; 1 RA 576-580.) The court said that it would allow a continuance, but that the eight temporary restraining orders would remain in place unless the trial went ahead as scheduled. (1 RT 2:11-14, 6:10-15.) As Ms. Sterling could not perform her duties as an elected official under these restrictions, she waived her right to discovery and proceeded directly to trial just three days after securing counsel. (1 RT 12:4-17.) The consolidated trial commenced on March 25, 2011. At the end of the second day of trial, TCHD voluntarily withdrew two of its petitions, those filed on behalf of Alexander Yu and Dan Stein. (2 RT 308:24-309:15.) On March 28, 2011, after TCHD closed its evidence, Ms. Sterling filed a motion for judgment pursuant to Code of Civil Procedure section 631.8(a). (2 AA 260-296.) The next day, but still before Ms. Sterling had offered any evidence, the trial court found that it was a close case but denied the motion. (3 RT 335:15-17.) After Ms. Sterling presented her case, the trial court on April 4, 2011 issued its oral decision to deny the six remaining restraining orders. The court explained, in detail, the facts supported by the evidence presented at trial. The court rejected the majority of TCHDs 14

story, including the claims that Ms. Sterling harmed or threatened anyone in the past, or posed such a threat to anyone in the future. After prevailing on the eight Petitions, Ms. Sterling filed a motion for private attorney general fees and costs under Code of Civil Procedure section 1021.5. (See, 1 RA 643-676.) The trial court denied the attorneys fees motion. (4 RA 1262-1268.) Ms. Sterling timely appealed. (2 AA 355-362; 4 RA 1269.)

15

RESPONDENTS BRIEF I. INTRODUCTION In this appeal, TCHD tries to create mountains out of legal molehills. TCHD complains of the exclusion of evidence that it had every opportunity to present; of legal rulings the trial court did not make; and of statutory interpretations, mandated by precedent, that would not affect the outcome even if overturned. TCHD argues exclusively for reversal in the Crooks case, but cannot identify even a colorable reason why the judgment in that case could be overturned. (AOB at 19-44.) It discusses the other cases only in a perfunctory suggestion that they should be swept along in a Crooks reversal. (AOB at 44-45.) II. ARGUMENT A. Summary of Argument

At trial, TCHD did not come close, by any stretch of the imagination, to establishing any violence or a credible threat of violence on the part of Ms. Sterling. This does not stop it from charging the trial court with significant legal errors. None of these supposed errors can be addressed here, because they are not expressed in a statement of decision or in a court order or judgment. Even if these supposed errors 16

were properly before this Court, they prove on examination to be both ephemeral and inconsequential. B. TCHD Failed to Request a Statement of Decision

Appellants Brief ignores a critical point: following the bench trial leading to the judgments on appeal here, neither side requested a statement of decision pursuant to Code of Civil Procedure section 632, which requires the court to issue such a statement upon the trial of a question of fact by the court. Consequently, the trial court did not issue a statement of decision. The absence of a statement of decision has significant consequences for this appeal. In particular, the doctrine of implied findings necessarily guides this Courts review. If the appellant fails to [obtain a statement of decision], the reviewing court will infer the trial court made every implied factual finding necessary to uphold its decision . . . . (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) This doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. (Id. at 58.) 17

TCHD argues that where the trial court fails to examine certain relevant evidence in deciding whether a restraining order is necessary, the appellate court should reverse so that the trial court can make factual findings based on all relevant evidence. (AOB at 27.) Inasmuch as TCHD cannot say what findings the trial court made, this argument does not advance its position. C. TCHD Improperly Bases Its Challenges on the Trial Courts Statements from the Bench

Without a statement of decision to look to, TCHD tries to find error solely in the trial courts oral statements regarding the reasons for its decision. (See, AOB at 29, 30, 31, 33.) However, an appellant may not point to statements made from the bench to argue that the trial court erred, even on a point of law. This restraint applies in a case in which a statement of decision was available, because the statement of decision is where an appellate court must look for error in the courts reasoning: the judgment here will not be impeached . . . by the courts oral comments . . . as they pertain to legal theories or conclusions. A formal statement of decision enables a reviewing court to determine what law the trial court employed. A failure to request a statement of decision results in a waiver of findings and conclusions necessary to support the judgment and we will accordingly imply such conclusions. 18

(Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.) [A] courts comments . . . may never be used to impeach the order or judgment. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646 (emphasis in original, citations and internal quotation marks omitted); accord, In re Marriage of Green (1989) 213 Cal.App.3d 14, 20 ([Appellant] cannot rely on the trial courts oral comments or announcement of intended decision to impeach its judgment); Smith v. City of Napa (2004) 120 Cal.App.4th 194, 199 (Contrary to the [appellants] apparent belief, we may not impeach the trial courts ultimate judgment with its remarks at the hearing on the petition or in announcing its ruling from the bench).) The necessity for this rule is apparent. A court is not bound by its statement of intended decision and may order a judgment wholly different from the one announced. (Marriage of Ditto, 206 Cal.App.3d at 646.) The statement of decision procedure allows the court to review its intended decision and change it if necessary, and to place the law it actually applied on the record; the statement of decision allows the appellate court to determine what law the trial court ultimately employed. (Id. at 647.) Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, 19

during the period before rendition of judgment, the trial court realized any error and corrected it. (Shaw, 170 Cal.App.4th at 268; accord, Marriage of Ditto, 206 Cal.App.3d at 647.) Consequently, on this appeal of cases in which no statement of decision was requested, this Court must presume that the trial court both found the necessary facts and applied the law correctly: We are mindful that in the instant case the alleged error is one of law and not one of fact. But the result is the same. In both instances, whether the trial court in its intended decision made an alleged error of law or fact, the intended decision remains only an intended decision. It is the statement of decision and judgment which allow the trial court to rectify any errors. Because a statement of decision was not requested, the trial court did not have the opportunity to amend; the judgment therefore governs. (Marriage of Ditto, 206 Cal.App.3d at 648.) The same rule applies even where a statement of decision is not required. For example, on the appeal of the denial of a preliminary injunction, the appellate court noted: [W]here the trial court was not required to prepare a statement of decision or explain its reasons for denying the injunction, it is especially important to refrain from using the courts oral comments as a basis for reversal. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451; accord, Pellegrino v. Robert Half Intern., Inc. (2010) 182 Cal.App.4th 278, 294

20

(we will similarly refrain from using the courts oral comments during the hearing to impeach the final attorney fees award).) TCHD justifies its attempt to secure reversal on the basis of the trial courts oral comments solely by citation to Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139. (AOB at 19.) This reliance is misplaced. In Gdowski, the appellate court reversed the decision of the trial court because it was based on the losing partys method of crossexamination instead of the merits of the case. (Id. at 137.) The appellate court learned that this was the basis of the trial courts decisions from oral remarks made at trial. (Ibid.) However, the Gdowski appellate court was quick to point out that it was not retreating from the general rule that a trial courts oral statements cannot be a basis for reversal. In fact, it quoted the Whyte decision to that effect. (175 Cal.App.4th at 138 n. 3.) But it also found Gdowski different from the cases applying the general rule: [W]e note that the present case is distinguishable. Here, we consider the trial courts oral comments to determine the trial court based its decision on a ground that a court cannot consider the manner of counsels crossexamination and the clients failure to try to stop that examination. (Ibid.)

21

Here, TCHD does not try to suggest that the trial court based its decision on any ground that a court cannot consider. Rather, it contends that the trial courts oral remarks indicate it made an error of legal reasoning. To find such error, it is not allowed to point to the trial courts oral remarks, but instead must identify errors, if any, in the order denying its petitions. D. Note on Citations to the Record

One persistent problem with the Legal Argument section of Appellants Opening Brief is that, when it comes time to criticize a ruling of the trial court, the brief does not actually cite to the record but instead cites other pages of the Opening Brief on which multiple citations to the record can be found. Examples can be seen in

Appellants Opening Brief at pages 21, 22, 24, 25, 31, 32, and 33. The result is that it is often difficult to see exactly what TCHD is complaining about. Even worse, when the citation is tracked down and the trial courts actual ruling is analyzed, it often turns out that TCHDs description of what the trial court said or did is less than complete or accurate. Examples are discussed in this brief below at pages 23 to 25, 29, 42, and 43.

22

E.

The Trial Courts Exclusion of Hearsay Evidence Cannot Be a Basis for Reversal 1. The Exclusions TCHD Complains Of Are Quite Limited

Appellants Opening Brief complains at great length about the exclusion of hearsay from the trial, but it largely obfuscates the extent of the exclusions. Mostly, TCHD complains that the trial court excluded as hearsay an incident report that it tried to introduce into evidence. (AOB at 22, cross-referencing AOB at 12-14.) The incident report is at 2 AA 42532. TCHD also complains that the court refused to consider for its truth testimony that Sterling had caused Lawyers arm to bleed. Appellants Opening Brief does not directly identify this testimony, but instead cross-references its own pages 12 to 14. These pages discuss the occasions on which hearsay testimony was supposedly excluded. But, on examination, only one of these occasions actually involved the exclusion of testimony. It turns out that the sum total of testimony excluded as hearsay is TCHDs first example, witness Larry Andersons statement that: [Craig Lawyer] said Kathleen [Sterling] had scratched him in the incident that 23

I first referenced. (1 RT 80:27-28.) Specifically, TCHD quotes the trial court as saying that it will not consider this testimony for the purpose of whether the scratching actually occurred. (AOB at 14, citing 2 RT 127:15-25.) Page 14 of the Opening Brief mentions two other places in the transcript that supposedly show the trial court excluding testimony on hearsay grounds. But neither of them actually does. In the first instance, TCHD complains about an occasion on which Ms. Sterlings hearsay objection was overruled. (AOB at 14, citing 2 RT 127:15-25.) Specifically, Ms. Sterlings counsel objected to

testimony on hearsay grounds, and the trial court overruled the objection because the testimony was not being offered for the truth of the matter stated. (2 RT 127:23-24.) TCHD apparently wants to argue that the court was incorrect in surmising that the testimony was not offered for the truth of the matter, and should be reversed on that ground alone. At the time, though, TCHDs counsel did not disagree with the court in any way about the purpose for which it introduced the testimony, and did not ask the court to consider the testimony for the truth of the matter. By failing to do so at the time, it waived any complaint it might now have about the courts 24

surmise. It can scarcely now complain of a supposed error simply because the court overruled its opponents objection while its own counsel kept silent about the purpose for which the testimony was offered. In the other instance, TCHD complains that Ms. Sterlings counsel asked the court to disregard certain testimony as to the truth of whether Ms. Sterling caused an injury to Mr. Lawyer, and the court said that it would do so. (AOB at 14, citing 2 RT 185:26-186:3.) The problem with this argument is that Ms. Sterlings counsel was being overcautious the witness did not actually testify that Ms. Sterling was the cause of an injury. The closest the witness came on this point was to say that he saw Ms. Sterling push some security guards, and that I believe I know that Craig Lawyers arm was scratched at that time. (2 RT 185:1-2.) However, when Ms. Sterlings counsel moved to strike that specific testimony for lack of foundation, the court ruled: Im going to let it stay in. We already . . . know that. (2 RT 185:3-6.) TCHD cannot complain of error in the trial courts acceptance of evidence to which Ms. Sterlings counsel objected, or of the trial courts disregarding of testimony that its witness did not give.

25

Hence, TCHDs entire hearsay argument stands or falls on the exclusion of the police report, and of witness testimony that Craig Lawyer said Kathleen had scratched him. 2. TCHD Waived Its Argument Against the Hearsay Rulings by Failing to Make It to the Trial Court

TCHD asserts a single point of law to support its argument that the trial court erred in excluding these few instances of hearsay evidence: Section 527.8 provides that [a]t the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. (Code Civ. Proc., 527.8, subd. (j), emphasis added.) (AOB at 21-22.) However, at no time did TCHD ever make this argument to the trial court. Failure to make the argument to the trial court dooms any effort to rely on it on appeal. The Supreme Court has made this point forcefully: Defendant now contends that the statements were not hearsay, but rather went to [the witnesss] state of mind shortly before he disappeared. We agree. . . . Defendants trial counsel did not, however, specifically raise this ground of admissibility. In these circumstances he is precluded from complaining on appeal.

26

(People v. Fauber (1992) 2 Cal.4th 792, 854, citing Evid. Code, 354, subd. (a), Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, and People v. Frye (1985) 166 Cal.App.3d 941, 951.) It is true, of course, that the trial was conducted before this Court decided Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, which affirmed a judgment under section 527.8 after a trial in which the judge had admitted hearsay. But TCHD does not contend that that decision changed the law in any way. Rather, TCHD contends that the law is plainly stated, both now and at the time of trial, in section 527.8, subdivision (a); that Kaiser Foundation Hospitals merely read the statute correctly; and that the Court should do the same thing here. Indeed, echoing Kaiser Foundation Hospitals, TCHD urges that the result they advocate is a consequence of the plain language of the statute. (AOB at 22.) If their position here is simply the plain language of the statute that was in effect at the time of trial, then they have no excuse for not quoting this plain language to the trial court, and cannot rely on it for the first time on appeal. Where, as here, a proponent of evidence does not assert a particular ground of admissibility below, he or she is precluded from arguing on appeal that the evidence was

27

admissible under a particular theory. (Shaw v. County of Santa Cruz, 170 Cal.App.4th at 282-83.) Actually, TCHD had a good reason for not arguing at trial that section 527.8, subdivision (a) makes all hearsay admissible. It wanted to invoke the hearsay rule itself whenever doing so suited its purposes, and it did, repeatedly. (3 RT 404:27-405:2, 450:16, 468:27-28, 517:67.) It cannot go through trial maintaining that the hearsay rule applied, and now seek reversal on appeal on the ground that it did not. 3. TCHD Cannot Show Prejudice from the Hearsay Rulings

TCHDs argument that the exclusion of hearsay evidence was prejudicial rests on the notion that the trial court found this to be a close case, and therefore would likely have ruled differently if it just had admitted a little bit more evidence in TCHDs favor. Without directly citing to the transcript, TCHD tells this Court that the hearsay rulings were prejudicial because [t]he trial court said this was a close case, and [i]t is certainly more than an abstract possibility that this additional evidence would have pushed the close case in Tri-Citys favor. (AOB at 24, 25.)

28

TCHDs suggestion that the trial court found this to be a close case is more than a little disingenuous. By chasing its cross-references around the Opening Brief, one can ultimately discover that the trial courts statement about a close case can be found in volume III of the trial transcript, at page 335, lines 15 to 17. That, however, was the middle of the trial. TCHD had just rested, and Ms. Sterling had not yet presented any evidence; rather, she had just moved for judgment pursuant to Code of Civil Procedure section 631.8. (2 RT 309:16-19, 2 RT 310:13-318:25.) At the start of the next day, having heard argument and reviewed the briefing, the trial court summed up its ruling on the motion for judgment as follows: I dont think the case should have been dismissed yesterday. I dont think it should be dismissed now. But its certainly a close case. (3 RT 335:15-17.) In other words, after hearing all of TCHDs evidence and none of Ms. Sterlings, the trial court found only that the question of whether to enter judgment in Ms. Sterlings favor immediately was a close case. TCHD does not point to any statement of the trial court at the end of trial suggesting it found this case to be particularly close. Indeed, the

29

courts remarks indicate just the opposite. Before closing arguments it observed: We didnt hear any testimony about any threats that Ms. Sterling made to anyone ever. (4 RT 614:20-21.) But for the events of February 24th, I dont think theres a case here for the petitioners. Im sort of wondering out loud if this is the wrong kind of restraining order to be seeking. (4 RT 615:6-9.) I think the explanation of the first incident on the 24th given by . . . Mr. Rivero and by Ms. Sterling causes me to have a lot less concern about that incident than I did when I spoke to you before about my tentative thoughts. (4 RT 615:19-20.) So the one person who was potentially involved with something that could loosely be called violence or technically be called it [i.e., Mr. Crooks], maybe . . . he doesnt think its a big deal in terms of this restraining order. He said hes seeking a restraining order, but he said hes not afraid of Ms. Sterling. And Im not sure that a person who states he has no fear is a proper subject of a restraining order. (4 RT 617:4-11.) But again, how do you get to all these other people who have all these other hostilities towards Ms. Sterling to go on and on and on for years being afraid? And what are they afraid of? Nobody was able to tell me. I asked

30

several questions and some of the answers I think were pretty far-fetched. So to give you an idea of what I think. Im not sure how we get to that second level. And the only way we can get there is to say, but for the security guards and somehow she would have attacked somebody on the board. But I dont know how you get there. (4 RT 617:12-22.) Following closing argument, the court appeared to be even less convinced that the case was close: Most of the things complained about by the petitioners were trivial and inconsequential. (5 RT 5:5-6.) The theme is the allegation of escalating aggressive conduct. There were allegations that Ms. Sterling is completely unhinged, increasingly hostile, unpredictable, and that she lost control in closed sessions. The court believes that virtually no evidence of this theme, or any of these claims, was presented in the trial. (5 RT 5:12-19.) There is, however, an even more compelling reason why the exclusion of evidence on hearsay grounds could not possibly have been prejudicial. That reason is that TCHD could easily have presented almost all of the excluded evidence, but elected not to do so.

31

TCHDs prejudice argument revolves almost entirely around the exclusion of its internal report of the February 24, 2011 events i.e., the Crime/Incident Report of Matthew Hernandez. (2 AA 425-32.) TCHD expounds at great length about all of the evidentiary details that might be found within that report, and argues that the case might well have come out differently if the court had been exposed to these details. (AOB at 12-14, 24-25.) However, TCHD cannot possibly claim any prejudice from the exclusion of Officer Hernandezs report, because it had a ready alternative avenue to introduce the same evidence. Officer Hernandez himself was present in the courtroom and fully able to testify. In fact, TCHD intended to call him as a witness to authenticate the report. (2 RT 274:17-23.) When the trial court excluded the report on hearsay grounds, TCHD could have simply called Officer Hernandez to the stand to testify to the facts he had put into the report. Ms. Sterlings counsel did not object to the facts in the report going into evidence, or to Mr. Hernandez testifying about them. Rather, Im against hearsay statements being in . . . without the opportunity to cross-examine. If they want to go ahead and have him describe what he saw or experienced, thats fine. 32

(2 RT 275:12-15.) But TCHDs counsel had absolutely no desire to present this evidence. Her position was: If youre not going to admit the report then theres no reason to call him. (2 RT 277:4-5.) This remained TCHDs position even after the court offered: You can have as much as time as you want. You can pursue whatever you want. (2 RT 277:78.) Thus, if the trial court was not exposed to any facts in Officer Hernandezs report, this omission was due entirely to TCHDs conscious election not to present those facts. It requires a fair amount of audacity for TCHD now to argue, after it elected not to present Officer Hernandezs testimony, that it was so prejudiced by the exclusion of anything that might be found in his report that the judgments below must be reversed. It is conceivable that, had TCHD permitted Officer Hernandez to testify to the substance of his report, some of his testimony might have been objected to as hearsay i.e., it might be that his report contained hearsay within hearsay, which would have been objectionable even if he testified. But, since TCHD decided for tactical reasons to keep him off the stand, we will never know what he would have testified to, what Ms. 33

Sterlings counsel would have objected to, or how the court would have ruled. As the case comes to this Court, TCHD alone is responsible for the fact that anything contained in Officer Hernandezs report was not considered by the trial court in deciding these cases. Officer Hernandezs report does contain one item of hearsaywithin-hearsay on which TCHD puts particular reliance. He reported: [Craig] Lawyer stated that during the situation, Sterling grabbed his (Lawyers) arm causing a scab to break. Lawyer explained that the scab was from a previous injury. (2 AA 427; see AOB at 13.) Since TCHD declined to put him on the stand, it is unknown whether Officer Hernandez would have so testified or whether the trial court would have allowed him to do so. TCHD might, for example, have been able to lay a foundation to have this admitted as a spontaneous statement under Evidence Code section 1240. Again, because of TCHDs tactical decision not to present Officer Hernandezs testimony, we will never know. In reality, the Hernandez report was merely cumulative of the testimony of other eyewitnesses to the February 24 incident, and would not have added anything to the trial courts deliberations. Immediately after the court excluded the report, and TCHD elected not to put Officer Hernandez on the stand, the court observed: 34

I have a pretty good idea what happened in incident 1 and incident 2. The record for any appeal that either of you might have is all there. . . . And so if you want to ask witnesses about it and ask him something new, might be useful. But if theres nothing new, you know, I probably heard it enough. And youre protected enough. You got it in the record at least 10, 15, 20 times probably. (2 RT 277:8-16.)5 The other hearsay exclusion of which TCHD complains arises from the trial court sustaining Ms. Sterlings objection to Larry Andersons testimony: [Craig Lawyer] said Kathleen [Sterling] had scratched him in the incident that I first referenced. (1 RT 80:27-28.) Again, TCHD simply failed to take the prudent step of putting the percipient witness on the stand. Mr. Lawyer is in TCHDs employ. (1 RT 30:28-31:1.) TCHD represents on this appeal that he did not testify because he was out of state with an ill family member. (AOB at 14 n. 6.) In fact, TCHD made no effort to make him available for trial; it was quite casual about his availability and apparently did not even know where he was at the time of trial:

The excluded report also had attached to it a witness statement of Michael Parent. (2 AA 432.) TCHD does not argue that it suffered any prejudice from the exclusion of this attachment. If it did, the same considerations would apply. Mr. Parents report was cumulative of what TCHDs other witnesses said; he was TCHDs lead security officer (2 AA 426) and could easily have been called to testify. 35

Were trying to get ahold of the man who was injured, Craig Lawyer. He was actually in North Carolina. Hes got ill family. Hes been out of town. Were trying to get ahold of him to see if we can . . . make arrangements for him. (3 RT 525:23-27.) TCHD obviously did not consider Mr. Lawyers testimony very important; it opposed Ms. Sterlings efforts to postpone the trial,6 which would have allowed more time to bring him in to testify (1 RT 7:1-26), and it made no effort to secure his deposition testimony before the trial commenced. But, even if this Court were inclined to find error in TCHDs tactical decision not to present evidence concerning the possibility that Ms. Sterling had somehow dislodged a scab on Mr. Lawyers arm, it scarcely seems reasonably probable that this one item would have turned the tide in these cases. As TCHD is quick to point out, it was allowed to present extensive evidence to the effect that Mr. Lawyer had blood on his shirt after his confrontation with Ms. Sterling. (AOB at 8, 14, citing 1 RT 22:25-28, 79:24-28, 95:23-28, 96:6-12; 2 RT 127:7-16, 128:23-27, 129:4-6, 142:1-3, 143:25-28, 185:1-2, 18-24, 239:1-3 265:23-26, 266:7-23.) (One percipient witness observed, though, that the dried

TCHDs counsel announced: I am more than happy to go forward with the trial today. We are prepared. (1 RT 11:18-19.) 36

blood on Mr. Lawyers shirt amounted to just like a couple droplets. (3 RT 355:25),) Still, the court did not believe that Ms. Sterling caused Mr. Lawyers to bleed, and its principal reason for so concluding was that Craig Lawyer did not testify. (5 RT 12:10.) It strains credulity to suggest that a couple of hearsay statements to the effect that Mr. Lawyer had sustained a scratch that dislodged a scab would have flipped the trial courts conclusions 180 degrees. As this Court observed in the Kaiser Foundation Hospitals decision, Trial judges are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented. Cal.App.4th at 557.) F. The Trial Courts Definition of Battery Cannot Be a Basis for Reversal (201

TCHD argues at some length that the trial court erred in the definition of battery that it applied to the First Incident on February 24, 2011. (AOB at 28-33.) However, the courts written order did not contain a definition of battery, let alone an erroneous definition, and TCHD takes exception only to some of the courts oral remarks before

37

judgment. This route is unavailable to it. It cannot now find error in the courts oral remarks, for the reasons explained above at pages 17 to 20. Even if the argument were available to it, there was no error in the courts oral definition of battery. TCHD parses comments the court made when it discussed battery and tries to argue that each is a ground for reversal. These piecemeal arguments ignore the real reason the court decided that battery had not been proved in light of the conflicting testimony, TCHD had not demonstrated battery as a factual matter, under any definition. This becomes clear when one looks beyond the snippets of the courts discussion TCHD wants to talk about, and looks instead at the courts conclusion: The first incident. Five minutes before the meeting sterling entered the room. Security guards, including Crooks, blocked her advance into the room. She tried to walk around them, but they moved and continued to block her advance. At most, Sterling bumped into Crooks. It was not hard enough to move him. There was absolutely no injury. ... This court cannot find by a preponderance of the evidence that Sterling committed either an assault or a battery. Her intention was clearly to get around the guards again before the meeting, not to come into contact with them. (5 RT 11:2-12:9 (emphasis added).)

38

Thus, the courts bottom line was that at most, Sterling bumped into Crooks, but not hard and without injury, and that Ms. Sterlings intention was clearly to get around the guards again before the meeting, not to come into contact with them. This, in and of itself, dooms any battery claim TCHD might want to resurrect on appeal. [T]he crime of battery requires that the defendant actually intend to commit a willful and unlawful use of force or violence upon the person of another. (People v. Lara (1996) 44 Cal.App.4th 102, 107 (quotation marks and citation omitted).) To state the obvious, a person who does not intend to come into contact with another certainly does not intent to commit a willful and unlawful use of force on that other. TCHD tries to argue that [t]he trial court erroneously concluded that Sterling did not commit a battery because she did not intend to batter Crooks in the first February 24 incident. (AOB at 30-31.) TCHD asserts that the trial court erred because it did not recognize that a person need not have an intent to injure to commit a battery. She only needs to intend to commit the act. (AOB at 30-31, quoting People v. Mansfield (1988) 200 Cal.App.3d 82, 88 (brackets and quotation marks omitted).) TCHD also says that the trial court should have

39

simply looked to whether Sterling intentionally touched Crooks. (AOB at 30.) But the trial courts conclusion was that Ms. Sterlings intention was clearly . . . not to come into contact with the guards at all (5 RT 12:7-9) i.e., not to commit the act. TCHD acknowledges that an intent to commit the act is required to prove battery: [Defendant] only needs to intend to commit the act. (AOB at 28, 31, quoting Mansfield, 200 Cal.App.3d at 87-88.) Therefore, even under TCHDs view of the law, the court was completely correct in finding no battery. TCHDs argument concerns only the First Incident on February 24, 2011. TCHD does not take exception to the trial courts conclusion that no battery occurred in the Second Incident. (5 RT 12:14-13:11.)7 In any event, such an argument would be equally unavailing, for the same reasons. In the second incident as in the first, Ms. Sterling could not be held to have committed battery because the trial court found she did not intend to come into contact with Mr. Crooks: Second incident. ... At some point, according to petitioner Crooks, who gave the most credible account of the event, Sterling stood Nor does TCHD dispute the courts conclusion that Ms. Sterling did not commit battery against Mr. Soskins. (5 RT 5:25-6:13.) 40
7

behind him, reached over his shoulder and took a photo. She touched him enough that he became aware of her presence and instinctively pushed backwards and turned around. This turning action caused Sterlings weight to be on his back while it was twisted. This resulted in a minor muscle strain. The court does not believe there is proof by clear and convincing amount that an assault or battery took place. Sterlings goal was not to touch Crooks but to converse with Reno or with Karen about the T.V. and to take a photo. More likely than not, the touching was not even intentional but more likely careless. (5 RT 12:14-13:11.) TCHDs other arguments are similarly misguided. It takes

exception, at great length, to the courts observation that Ms. Sterling had a right to enter the meeting room and that TCHDs guards had no right to bar her from doing so. (AOB at 28 to 30.) It argues that [t]here is no legal justification for a battery short of self-defense. (AOB at 29 (quotation marks and citation omitted).) The problem though, is that the court never said that Ms. Sterling had a legal defense for a battery that she committed; it said that she did not commit battery because she did not intend to come into contact with the guards. The question of whether she was permitted to enter the room was, at most, a consideration in evaluating her intent; if she was not trying to trespass, then it was not likely that she was trying to use force to enter the room. 41

Finally, TCHD argues that [t]he trial court erroneously focused on whether Sterling would have been criminally prosecuted for her actions. (AOB at 31-32.) Once again, TCHD takes liberties with the courts expressed views. It argues at length that the trial court was wrong in letting the battery issue turn on the discretionary decision of a public prosecutor, who frequently decide not to charge acts that constitute crimes. (AOB at 32.) But that is not at all what the court did. TCHD carefully avoids quoting the courts decision on this point, and again hides what it is talking about by citing the record only indirectly. (AOB at 31, crossreferencing AOB at 16.) Again it is necessary to chase around its brief to discover what it is talking about. In this case, it is referring to the trial courts statement: At the very worst for Sterling she committed a battery on petitioner Crooks. At the very best for Sterling, Crooks committed a battery on her. Neither person would be charged or convicted by any prosecuting agency in a criminal case. This court cannot find by a preponderance of the evidence that Sterling committed either an assault or a battery. (5 RT 12:1-5.) The import of this statement is clear: TCHDs evidence was so weak that no rational prosecutor would pursue a battery charge on these 42

facts, but if he or she did it would not be possible to make the charge stick. This is an observation about the strength of TCHDs evidence, not a substitution of prosecutorial discretion for the clear and convincing standard under which the court was required to judge the case. G. The Trial Courts Observation that Mr. Crooks Did Not Fear Ms. Sterling Cannot Be a Basis for Reversal 1. TCHDs Lengthy Argument About a Showing of Fear Is Irrelevant to the Outcome of this Appeal

Finally, TCHD devotes nearly twenty-five percent of its brief, and over forty percent of its legal argument, to a rumination on whether section 527.8 requires a showing of irreparable injury. (AOB at 33-44.) It argues that irreparable injury is not required, which leads it to assert that [t]he trial court erroneously concluded Tri-City had to prove more than that Crooks was the victim of unlawful violence. (AOB at 33.) The springboard for this discursion is TCHDs assertion: The court found that, even if Sterling engaged in an act of unlawful violence, an injunction was not appropriate because Crooks was not in fear of Sterling. (AOB at 33.) As it does throughout its brief, TCHD obscures what it is really talking about through indirect citations.8 It turns out
8

TCHDs only citation for the courts supposed error is Ante, p. (continued...) 43

that it is complaining solely about the following remarks from the bench: Petitioner Crooks also testified he is not afraid of Sterling. He said he was concerned. Because of his honest testimony, that is, that hes not afraid, hes not in fear, hes not entitled to a restraining order because hes not afraid of Sterling. (5 RT 13:20-24.) The reason TCHD found it necessary to obscure this citation is that the very next sentence the court spoke completely neutralizes its entire argument. It next said: The court also does not believe her conduct in both incidents is sufficient for a restraining order even if he testified that he was afraid of Sterling. (5 RT 13:24-27 (emphasis added).) This point vitiates TCHDs rambling discourse about whether the trial court erred in declining to issue an injunction for Mr. Crooks because he did not fear Ms. Sterling. As the court made clear, TCHDs

(...continued) 17. (AOB at 33.) At page 17, the Opening Brief says: The court found that Crooks was not entitled to a restraining order because hes not afraid of Sterling, but instead is simply concerned about her. (5 RT 13:20-24.) 44

showing was wholly inadequate to justify an injunction regardless of whether Mr. Crooks feared Ms. Sterling. In other words, TCHDs argument that [t]he trial court erroneously concluded Tri-City had to prove more than that Crooks was the victim of unlawful violence (AOB at 33) is meaningless. The trial court concluded that TCHD did not prove Mr. Crooks was a victim of unlawful violence; it did not make any difference whether he was able to prove more. It therefore cannot make the slightest difference on this appeal whether section 527.8 requires a showing of irreparable injury. However, for the sake of completeness, we will address the matter briefly. It turns out that TCHD is also wrong on the law. 2. TCHDs Argument that Irreparable Injury Need Not Be Shown Runs Counter to Established Law

TCHD argues that section 527.8 is an extraordinary statute under which proof of irreparable injury is not required to secure an injunction. (AOB at 33-43.) It acknowledges that a decision of this Division of this Court, Scripps Health v. Marin (1999) 72 Cal.App.4th 324, is completely contrary. It does not mention by name the cases that have considered Scripps and reached the same conclusion. These include

45

Russell v. Douvan (2003) 112 Cal.App.4th 399, 403, City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 542, and City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 615. In other words, TCHD is asking this court to overturn a very wellentrenched body of law it launched more than a dozen years ago. It is, of course, a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 503-04 (citations omitted).) Nevertheless, TCHD supports its position with three subarguments: 1) that irreparable injury need not be shown where the injunction is pursuant to statute; 2) that another authority, Gdowski, 175 Cal.App.4th 128, is contrary to Scripps; and 3) that legislative history supports its position. None of these can withstand scrutiny. a. Private Parties Must Show Irreparable Injury to Obtain a Statutory Injunction

For its first point, that irreparable injury is not required where the injunction is pursuant to statute, TCHD relies on Paul v. Wadler (1962) 209 Cal.App.2d 615, 625; secondarily, it cites also to In re Marriage of

46

Van Hook (1983) 147 Cal.App.3d 970, 984-985, and California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419. 433-434. (AOB at 34.) The first point to note is that this line of cases is inapplicable to section 527.8. They concern statutes that create substantive offenses for which the remedy of injunction is made available. The theory is that when a legislative body has authorized the injunctive remedy for the violation of a statute, it has determined as a matter of law that irreparable injury attends the violation of the statute. (Paul, 209 Cal.App.2d at 625.) Section 527.8 is not a substantive statute; it is a procedural statute, placed in the Code of Civil Procedure, that creates an expedited procedure by which an employer can obtain the procedural remedy of injunction for acts that are common law torts against its employees. However, to the extent that any of these authorities might actually support TCHDs point, they are obsolete. In a footnote, TCHD

mentions but quickly dismisses the contrary authorities DVD Copy Control Assn. Inc. v. Bunner (2004) 116 Cal.App.4th 241, 250, and Leach v. City of San Marcos (1989) 213 Cal.App.3d 648, 661. (AOB at 35 n. 12.) Both squarely hold that [w]hen the plaintiff is not a 47

governmental entity and the statute does not expressly provide otherwise, a finding of interim harm is necessary. (DVD Copy Control Assn., 116 Cal.App.4th 241, 250, and Leach, 213 Cal.App.3d at 66162.) In contrast, both Paul and Pearle Vision involved injunctions sought by governmental entities. TCHD tries to minimize the holding of DVD Copy Control and Leach by asserting that [b]oth Gdowski and Marriage of Van Hook . . . involved non-governmental plaintiffs. (AOB at 35 n. 12.) Gdowski will be analyzed separately below. Marriage of Van Hook did not concern irreparable injury. Rather, relying on Paul, it concluded that inadequacy of a remedy at law need not be shown to obtain injunctive relief authorized by statute . . . where the statutory conditions for issuance are satisfied. (Id. at 985.) However, to the extent that Marriage of Van Hook might be read as support for the proposition that a private plaintiff need not prove irreparable injury, it was overtaken by Leach. Marriage of Van Hook was decided in 1983, Leach in 1989. In Leach, this Division of this Court discussed its earlier decision in Pearle Vision Center, and examined the statement where an injunction is authorized by statute, a violation thereof is good and sufficient cause for its issuance. (Pearle 48

Vision, 143 Cal.App.3d at 433.) It concluded: [T]his assertion is, as a blanket statement of law, incorrect, because the rule applies only where a governmental authority seeks an injunction. (Leach, 213 Cal.App.3d at 661.) The basis for this conclusion was an intervening California Supreme Court decision, Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 decided after Marriage of Van Hook which concluded that a trial court must evaluate future harm before an injunction can issue. (213 Cal.App.3d at 661-62.) Witkin summarizes the present state of the law as follows: (3) Effect[] of Statute Authorizing Injunction. It has been stated that, where injunctive relief is authorized by statute and the statutory conditions for issuance are satisfied, irreparable injury need not be shown to obtain injunctive relief. (Paul v. Wadler (1962) 209 C.A.2d 615, 625, 26 C.R. 341; . . . .) However, it is incorrect to state, as a blanket statement of law, that authorization of an injunction by statute is sufficient to justify its issuance. If the plaintiff is not a governmental entity, and the statute does not expressly provide that a showing of interim harm is not required, a showing must be made. (DVD Copy Control Assn. v. Bunner (2004) 116 C.A.4th 241, 250, 10 C.R.3d 185 . . . .) (6 Witkin, Cal. Proc. 5th (2008) Prov Rem, 295, p. 236 (emphasis added).)

49

b.

The Gdowski Decision Does Not Support TCHDs Position

Additionally, TCHD relies on Gdowski, 175 Cal.App.4th 128, to urge this Court to overturn the holding in Scripps Health that future harm must be shown before a section 527.8 injunction can be issued. (AOB at 35-37.) Gdowski held that a protective order may issue under the Elder Abuse Statute, Welfare and Institutions Code section 15657.03, without a showing of a threat of future abuse. Cal.App.4th at 135-37.) TCHDs reliance on Gdowski is somewhat ironic, given that that case viewed Scripps Health as correctly decided but distinguishable because of differences between the statutes. (175 Cal.App.4th at 13637.) TCHD therefore has the somewhat delicate task of convincing this Court to accept Gdowskis interpretation of the Elder Abuse Statute and then extend it to section 527.8, in direct contravention of Gdowskis interpretation of section 527.8. (AOB at 36 n. 14.) It is fairly easy to see why Gdowski concluded that section 527.8 requires a showing of future harm but the Elder Abuse Statute does not. Subsection (e) of section 527.8, which concerns the granting of interim relief, provides: (175

50

[T]he plaintiff may obtain a temporary restraining order . . . if the plaintiff also files an affidavit 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 defendant, and that great or irreparable harm would result to an employee. . . . (Emphasis added.) A central holding of Scripps Health is that the Legislature necessarily intended these provisions to apply also to the issuance of a permanent injunction. (72 Cal.App.4th at 334-35.) The comparable provision of the Elder Abuse Statute is quite different: An order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult. (Welf. & Inst. Code, 15657.03 subd. (c).) Consequently, Gdowski decided not to follow Scripps Health. (175 Cal.App.4th at 136-37.) Additionally, in arguing that the rules of statutory interpretation dictate that section 527.8 does not require a showing of irreparable harm, TCHD takes a very narrow view of the statute to be interpreted. It ignores the observation of Scripps Health that the Legislature put section 527.8 squarely in a series of statutes that declare[] the availability of injunctive relief in particular situations. (72 Cal.App.4th at 333.) Specifically, the Legislature put section 527.8 into Title 7,

51

Chapter 3 of the Code of Civil Procedure, commencing with sections 525, 526 and 527, which define the general circumstances under which injunctions may be issued. These statutes have long been held to require that, absent an affirmative legislative statement to the contrary, irreparable injury must be shown before an injunction may issue. For example: In deciding whether to issue an injunction pursuant to [Code of Civil Procedure] section 1281.8, the trial court must weigh the same factors it considers in proceedings under section 526: (1) likelihood of success on the merits, and (2) whether the moving party will suffer irreparable harm in the interim if the injunction is not issued. (Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 446.) Indeed, the Legislature has repeatedly deemed it necessary to explicitly exempt injunction statutes from the irreparable injury requirement of section 525. For example: Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of [the Code of Civil Procedure], except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 is not required. (Food & Agr. Code, 77863, subd. (b).) A similar exemption from the irreparable injury requirement of section 525 et seq. can be found in

52

dozens of statutes.9 These statutes also refute TCHDs notion that the a statutory injunctive right that is silent on the irreparable injury requirement is automatically exempt from it. In contrast, when it placed section 527.8 in Title 7, Chapter 3, following directly after sections 525 to 527, the Legislature elected not to write a comparable exemption from the irreparable injury requirement into the statute. The clear implication is that the Legislature did not intend for section 527.8 to authorize injunctions without a showing of irreparable injury. TCHD emphasizes the illogic of its position by alluding to subsection k(1) of section 527.8, allowing a renewal of an injunction after three years without a showing of any further violence or threats of violence since the issuance of the original order. It asserts: [T]he renewal provisions failure to require an ongoing threat makes sense when no such specific showing is required to obtain the injunction in the first place. (AOB at 39.) To the contrary, it builds absurdity upon absurdity to insist that an injunction issued in the absence of irreparable harm can be renewed (See, e.g., Food & Agr. Code, 19443, 77863, subd. (b); Bus. & Prof. Code, 8658, 25602.2; Health & Saf. Code, 1595.5, 1641.1, 11838.3(a).) 53
9

without any showing at all.

Given that irreparable injury is a

presumptive requirement for injunctive relief, the obvious and sensible implication of subdivision k(1) is that an anti-violence injunction will be renewed after three years, in the absence of further violence of threats of violence, only if it can be shown that the threat of irreparable injury persists. c. The Legislative History Does Not Support TCHDs Position

TCHDs discussion of legislative history as a basis for overturning Scripps ignores the most persuasive piece of history available. Specifically, the Legislature has amended section 527.8 five times since Scripps was decided in 1999 in 2000, 2002, 2003, 2005, 2006, and 2010 without seeing any need to make clear that it carries no irreparable injury requirement. The Legislatures failure to amend a statute to correct a supposedly erroneous judicial interpretation when it has the opportunity to do so is a strong indication that the interpretation was correct. (Pacific Hills Homeowners Assn v. Prun (2008) 160 Cal.App.4th 1557, 1564; Edgar v. W.C.A.B. (1998) 65 Cal.App.4th 1, 17; Metropolitan Culinary Services, Inc. v. County of Los Angeles

54

(1998) 61 Cal.App.4th 935, 947; Lindgren v. Baker Engineering Corp. (1988) 197 Cal.App.3d 1351, 1354.) Instead, TCHD places enormous reliance on the fact that early drafts of section 527.8 required a showing that the victim suffers harassment or that harassment exists, whereas the statute as enacted requires a showing that the victim suffered unlawful violence, or that defendant engaged in unlawful violence. (AOB at 42-43.) But the question on the table is not whether past or present violence must be shown; it is whether the threat of future irreparable injury must be shown. As this Court said in Scripps, Our review of the underlying legislative history and documents relevant to the enactment of section 527.8 has disclosed no evidence of a legislative intent to alter the traditional nature of prohibitory injunctive relief in this setting. (72 Cal.App.4th at 335.) TCHD has apparently scoured the same history, but has found nothing to contradict this conclusion. H. TCHDs Arguments for Reversal of the Trial Courts Decisions on the Other Petitions Have Even Less Merit than Its Arguments on the Crooks Petition

TCHD devotes essentially all of its briefing to the Crooks petition, and (as is discussed above) cannot identify any reason why the trial courts strong decision to deny that petition should be disturbed on 55

appeal. TCHD admits that it has nothing of substance to say in favor of the other petitions that the trial court likewise denied, and instead simply asserts that it told the trial court that the other petitions were tied to Mr. Crooks. (AOB at 44-45.) Regardless of what becomes of the Crooks petition, TCHD has not even attempted to present a reason why the other five petitions should be revived. III. CONCLUSION The grant or denial of a permanent injunction rests within the trial courts sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359.) Nothing approaching an abuse of discretion has been shown here. The denial of all of the injunctions sought by TCHD must be affirmed.

56

CROSS-APPELLANTS OPENING BRIEF I. INTRODUCTION Having succeeded in fending off TCHDs eight injunction actions, each of which falsely accused her of violence to keep her away from the hospital she was elected to oversee, Ms. Sterling applied for an award of attorneys fees pursuant to Code of Civil Procedure section 1021.510 the private attorney general statute. (See, 1 RA 643-676.) The trial court denied the fee application because it misinterpreted the statutory criteria governing an award under section 1021.5.

10

Section 1021.5 provides:

Upon motion, a court may award attorneys fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. 57

II.

SUPPLEMENTAL STATEMENT OF THE CASE CROSSAPPEAL A. Appealability of Judgment

The trial courts denial of each of TCHDs petitions for a permanent restraining order was an appealable judgment. (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.) The trial courts order denying Ms. Sterlings Motion for Attorneys Fees is appealable as an order made after an appealable judgment pursuant to Code of Civil Procedure section 904.1(a)(2). (Id. at 583 n. 6.) B. Standard of Review

The normal standard of review for an attorneys fee determination is abuse of discretion. (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1025-26; In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213.) However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. (Ibid.) Here, the only question before this Court is whether the trial court correctly interpreted the criteria for award of private attorney general fees, and review is therefore de novo.

58

C.

Additional Statement of Facts Pertinent to CrossAppeal

In addition to the full trial record, the trial court in deciding the fee motion had before it some further facts presented by declaration. Ms. Sterling is serving her third elected term as a member of the Tri-City Healthcare Districts Board of Directors, representing constituents in Vista, Carlsbad, and Oceanside. (3 RA 888 3.) The Board has passed a series of resolutions censuring Ms. Sterling for purported violations of the Boards Code of Conduct and general misconduct, ultimately barring her from entering the main Board meeting room during Board meetings for the rest of her term. (3 RA 888-889 6-9, 3 RA 899-912 Exs. A-D.) Consequently, she is now forced to attend the meetings sequestered in a remote conference room. (3 RA 891-892, 894 20, 31.) For some time leading up to the Boards February 24, 2011, meeting, the Board majority has been planning to initiate restraining order actions against Ms. Sterling. (2 RT 149:1-9, 152:10-14.) This is a strategy that TCHD had previously used against Dr. John Young, a thoracic surgeon at the hospital a proceeding that TCHD CEO Larry

59

Anderson had expected Ms. Sterling to attend.11 (1 RT 96:15-24.) Two incidents that occurred at the February 24 meeting became the pretext for the previously-planned injunction actions. The two incidents arose because of Ms. Sterlings attempts to enter the main Board meeting room. Specifically, the first incident occurred because she attempted to enter the room to talk to her constituents before the meeting started. (3 RA 889 11-12.) The second incident occurred when she attempted to enter the room at a break between meetings, to report that the audiovisual equipment in her remote location had been removed. (3 RA 889-890 13-14.) Citing the February 24, 2011 meeting as the impetus, TCHD ambushed Ms. Sterling with the eight pre-planned injunction actions on March 4, 2011, and obtained ex parte relief against her. (AA 1-255.)12 Trial was set for three weeks later, on March 25. She would have faced TCHDs phalanx of attorneys undefended, except that The McMillan

The injunction actions against Dr. Young are the subject of consolidated appeal No. D059573, now pending before this Court. The day prior, March 3, 2011, TCHD and Mr. Crooks also filed a civil lawsuit against Ms. Sterling seeking damages for the same incidents. (2 AA 284-293.) Ms. Sterling prevailed on an Anti-SLAPP Motion to Strike certain claims in that lawsuit. TCHD appealed that decision and the related fee award, Case Nos. D060431 and D061265. 60
12

11

Law Firm came forward to defend her, with only a minimal retainer from an anonymous donor. (2 RA 818 9.) The result TCHD achieved through its contemplated steamroller strategy against Ms. Sterling was a total defeat, which is the subject of the primary appeal. Still, the TCHD Board majority saw one last opportunity to turn its defeat on the meritless injunction actions into a victory. It planned to kick Ms. Sterling off the Board for missing a Board meeting on March 29 while she was in court to defend herself against the baseless charges brought against her. (3 RA 891 19.) To fend off this ploy, Ms. Sterlings counsel went back to court and obtained an order to the effect that Ms. Sterling was required to be in court on the day of the March 29, 2011 Board meeting. (5 RT 15:7-10; 1 RA 599-600.) Going forward, Ms. Sterlings sequestration during Board meetings greatly inhibits her ability to participate in the meetings and perform her duties. (3 RA 892-895, 897 22-37, 44-45.) At the Board meetings, she continues to confront an extremely hostile environment created by the other Board members. (3 RA 892-893, 896-898 23-25, 43, 47-50.)

61

III.

ARGUMENT A. Summary of Argument

The trial court incorrectly concluded that Ms. Sterlings victory over the injunction petitions did not benefit the public or merit private attorney general fees because it did not free her from sequestration during Board meetings and was not initiated by her. This is a

misunderstanding of the law. Ms. Sterling substantially benefitted the public, at her own expense, by deflecting the efforts of the Board majority to keep her from advocating on behalf of her constituents by serving as a dissenting voice on the Board. B. The Four Requirements of Section 1021.5

The trial court distilled section 1021.5 down to four requirements: Respondent must . . . show: (1) she was successful; (2) the action has resulted in the enforcement of an important right affecting the public interest; (3) a significant benefit has been conferred on the general public; and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate.

62

(4 RA 1264.) These were the correct criteria for the court to consider. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935.)13 The trial court correctly recognized that Ms. Sterling was successful, and therefore satisfied the first requirement. (4 RA 1264.) However, it erred in concluding that she did not satisfy the other three requirements. (Ibid.) These errors are examined below. C. The Trial Courts Narrow Analysis Did Not Properly Identify the Rights under Attack in these Actions

With respect to the second and third criteria enforcement of an important right affecting the public interest, and a significant benefit conferred on the general public the trial court considered only one question: whether defeating TCHDs multiple injunction petitions changed the status quo under which Ms. Sterling was forced to participate in Board meetings from a separate room. Since Ms.

Sterlings victory obviously did not change that by definition, a prevailing defendant maintains rather than alters the status quo the

The statute actually includes a fifth requirement that such fees should not in the interest of justice be paid out of the recovery, if any. Since there was no recovery to be had from defeating TCHDs injunction actions, it was appropriate not to include this requirement. (Woodland Hills Residents Assn., 23 Cal.3d at 935.) 63

13

court incorrectly concluded that no important right was involved and no significant benefit conferred. The courts analysis represents a misunderstanding of both the public interest that has been served by the successful defense of Ms. Sterling and the extent to which Ms. Sterlings victory enhanced that public interest. The whole point of these injunction actions was not to determine whether Ms. Sterling has to sit in a separate room during Board meetings that will have to be addressed in other legal proceedings. The point of these injunction actions was to keep Ms. Sterling from representing her constituents at all. The frivolous nature of the violenceclaims made against Ms. Sterling repeated here in the primary appeal speaks eloquently to TCHDs real purpose in seeking to have her enjoined. Ms. Sterling is an elected official who has been chosen by the electorate three times to serve on the Tri-City Healthcare District Board of Directors most recently by 33,860 voters. (3 RA 888 3.) In this role, she represents constituents in Vista, Carlsbad, and Oceanside, California. (Ibid.) These proceedings have dramatically demonstrated a serious political rift on the TCHD Board. The majority is totally at odds with 64

Ms. Sterling and is trying hard both to silence her and to eliminate her from the Board. These injunction actions are the latest and most ambitious, but far from the first or only, such attempt to keep her from doing what she was elected to do. Certainly, an important manifestation of these efforts is the action of a majority of Board members requiring Ms. Sterling to be confined to a separate room during Board meetings, so that she can view the proceedings only through video transmission and participate in them only through conference telephone. (3 RA 888-889 7-9.) These arrangements have greatly crippled her ability to do her job. The electronic transmissions are poor and unreliable, the paperwork she is sent is incomplete, her comments and protests are frequently ignored, and she is not even allowed to interact with her constituents. (3 RA 889-890, 894-897 13, 32-45.) However, exclusion from the meeting room is just one symptom of the problem that Ms. Sterling had to fight in these actions, and not the problem itself. These injunction actions, like the sequestering, were a means to an end: keeping Ms. Sterling from functioning as a Board member, and ultimately kicking her off the Board.

65

In the longer term, the Board majority and hospital administration have been working conscientiously to drive Ms. Sterling from the Board. At the April 28, 2011 Board meeting, TCHD CEO Larry Anderson publicly accused Ms. Sterling of a criminal breach of confidentiality, but refused to disclose to her any of the purported evidence in support of the charge. (3 RA 897 47.) On May 26, 2011, the Board voted to eliminate Ms. Sterling from elected office and to file criminal charges against her on the basis of these allegations. (3 RA 898 50.) Even after the trial court denied all of its injunction petitions in the present case, TCHD tried hard to use these proceedings to rid itself of Ms. Sterling. After its eight petitions utterly failed, the chairwoman of the Board publicly accused Ms. Sterling of bribing the trial judge, telling her in a public meeting: Its unfortunate you may have paid Judge Mills off beforehand. (3 RA 898, 993 49, Ex. N (124:1-2).) She then told Ms. Sterling: I agree with [Board member] Charlene Anderson, you need to resign. (3 RA 993 Ex. N (124:19-29).) Even more egregiously, having dragged Ms. Sterling into court to defend what proved to be frivolous accusations of violence, TCHD then tried to kick her off the Board on the ground that she missed a Board 66

meeting while she was in court defending herself. (3 RA 891 19; 1 RA 595-597 (E-mail from TCHD CEO Larry Anderson claiming [Ms. Sterlings] term has expired according to Healthcare District Law. Dan stein will cite the operative provision to you. Therefore, if the Board declares a vacancy by Resolution, that vacancy can be filled...).) This required Ms. Sterlings counsel to go back into court to secure an order from the trial judge to the effect that Ms. Sterling was required to be in court on the day of the March 29, 2011 Board meeting. (5 RT 15:7-10.) Predictably, TCHD opposed, on the ground that Ms. Sterlings counsel was seeking some form of paperwork that he can use in the next court action to use to argue that this was basically an excused absence. (5 RT 16:12-15.) The trial court found TCHDs opposition to be absurd. (5 RT 18:1.) In the end, though, the obvious purpose of these eight overblown actions was to torpedo Ms. Sterlings political career. A victory for TCHD in even one of its cases would have resulted in a public decree of the trial court that Ms. Sterling had perpetrated, and apparently threatened to perpetrate again, unlawful violence or a credible threat of violence. (Code Civ. Proc. 527.8.) This is about as close as one can come to being designated a criminal without undergoing criminal 67

prosecution (and without entitlement to defense by a public attorney). It is difficult to see how Ms. Sterling could ever meet with her constituents let alone get re-elected once the public had it on the word of the court that she committed or threatened to commit violence on others. Had TCHD succeeded in obtaining even one of the injunctions it sought here, it would have made major strides in its efforts to eliminate Ms. Sterling as a dissenting voice. As things stand now, before and after the trial, TCHD is inhibiting her ability to participate in board meetings. However, the requested injunctions would have gone much further they would have prohibited Ms. Sterling from making contact with any of the petitioners in any way, and from getting within 100 yards of TCHD property, other than to seek emergency medical care or to attend the Board meetings in her isolated sequestration room. (1 AA 5, 26, 46, 67, 104, 125, 147, and 184.) Thus, if TCHD had been successful at trial, Ms. Sterling would have been absolutely prohibited from speaking to or getting anywhere near eight directors, executives, and/or employees of the hospital. In effect, the trial court would have entered a stay-away order barring her, under penalty of contempt, from getting close to the hospital whose operations she has been elected to govern. 68

Ms. Sterling is a public official who serves the interest of her constituents. Indeed, there is no reason for her to want to get near to the eight people on whose behalf TCHD brought these actions, or the facilities in which they are ensconced, except to further the interests of the public she represents. She is the publics eyes, ears, and voice when it comes to overseeing the hospital, which is supposed to be using the publics tax dollars to serve the public. (1 RA 606-607 4; 611 4-6.) The entire goal of TCHD, thwarted by Ms. Sterlings victory, was to keep those eyes and ears and that voice away from the hospitals personnel and facilities. D. Ms. Sterlings Victories Enforced an Important Right Affecting the Public Interest

The sole reason the trial court gave for concluding that Ms. Sterlings victories did not enforce an important right affecting the public interest was: [S]he is still not permitted to enter the public meeting room now that the restraining-order requests have been denied. Thus, even after prevailing in this action, she is in the same position she occupied prior to the time this action was brought. An important right affecting the public interest has not been vindicated. 4 RA 1265.) Although the fact that Ms. Sterling is not permitted to enter the meeting room is important background information, that 69

restraint was not adjudicated in these injunction cases. Ms. Sterlings victories enforced an important public right, not because of any effect on her sequestration, but because it thwarted an attempt to keep her from fulfilling responsibilities as an elected official. A permanent restraining order obtained by any of the Petitioners would have required Ms. Sterling to remain at least one hundred feet away from the public meeting room, since all of the Petitioners regularly attend Board meetings there. (3 RA 890-891 16.) This restriction would have prevented Ms. Sterling from exercising her freedom to speak and assemble, interacting with her constituents, and deliberating on issues of public importance with her fellow Board members. (See, 3 RA 889, 891 10, 16; 2 RA 818 8.) Also, if TCHDs requests for permanent restraining orders had been granted, a stigma would have attached to Ms. Sterling, inhibiting her ability to seek re-election or to advocate on behalf of her constituents. Her successful defense of this action resulted in the enforcement of her right to serve the public, and even more importantly, of her constituents right to be served by the representative they selected in a democratic election. (See, 3 RA 888, 935 3, Ex. K; 1 RA 606-607 4; 1 RA 611 4.)

70

Ms. Sterlings continued representation of her constituents, a sizeable part of the population within the Tri-City Healthcare District, is unquestionably a significant public benefit. A fundamental principle of our representative democracy is, in Hamiltons words, that the people should choose whom they please to govern them. 2 Elliots Debates 257. (Powell v. McCormack (1969) 395 U.S. 486, 547.) Silencing an elected official is tantamount to silencing his or her constituents: Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them. (Bond v. Floyd (1966) 385 U.S. 116, 136-37.) Consequently, an attempt to expel an elected official on the basis of the positions she takes is a violation of the free speech rights not only of the official, but of the electorate. (Ibid.) These concerns are particularly acute at the local board level. For example, a member of a municipal board of education must be allowed to sue for attempted removal on trumped-up criminal charges because: the very structure of the community board system at issue in this case supposes a striving toward these democratic 71

ends. Members are elected to provide additional voices to oppose, critique, supplement, modify, and suggest policies so that the Chancellor and the City Board can more effectively deliver education to the students of New York City. That being so, . . . allowing the Chancellor to remove board members on political grounds, would undermine the very object of the position [plaintiff] occupies. (Velez v. Levy (2d Cir. 2005) 401 F.3d 75, 97-98.) Thus, for example, where a school committee member alleged that the chairperson of the committee asked police officers to remove him from the meeting room following a disagreement, the allegations if true demonstrated a violation of clearly established constitutional rights of free speech, to represent his constituents, and to be free from unreasonable seizures. (Vacca v. Barletta (D. Mass. 1990) 753 F.Supp. 400, 404 affd, (1st Cir. 1991) 933 F.2d 31.) Both constitutional and statutory rights are capable of qualifying as important for purposes of the statute. (Robinson v. City of For the reasons

Chowchilla (2011) 202 Cal.App.4th 382, 393.)

discussed above, the right secured here was of constitutional dimension. This in and of itself was enough to satisfy the statute: The determination that the public policy vindicated is one of constitutional stature satisfies [section 1021.5s] important public right requirement.

72

(MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 9.) It has often been recognized that the protection of political and free speech rights is precisely the type of important right affecting the public interest that justifies an award of fees under section 1021.5. For example, litigation that protected the right of political petitioning merited a fee award under the statute because it enforced the peoples fundamental rights of free expression and petition, and because the public policy vindicated is one of constitutional stature. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318; see also Wal-Mart Real Estate Business Trust v. City Council of City of San Marcos (2005) 132 Cal.App.4th 614, 622 (litigation that allowed referendum to proceed resulted in enforcement of important right affecting public interest); Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal. App. 4th 1561, 1568 (free speech rights are included among those recognized as important right[s] affecting the public interest); Hull v. Rossi (1993) 13 Cal.App.4th 1763 (fees awarded for defeating attempts to strike ballot pamphlet arguments); California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 748-49 (enforcement of statute against using public funds for political purposes an important public 73

right because it is a fundamental precept of this nations democratic electoral process).) Similarly, successfully defending against an action that would have removed elected party committee members from office vindicated the important constitutional right of political parties and their members to choose their leaders and therefore merited fees. (Wilson v. San Luis Obispo County Democratic Cent. Com. (2011) 192 Cal.App.4th 918, 926.) In the end, the trial court concluded that [a]n important right affecting the public interest has not been vindicated because, even after prevailing in this action, Ms. Sterling is in the same position she occupied prior to the time this action was brought. (4 RA 1265.) But that is not the proper basis for comparison. By definition, a defendant who defeats an action brought to place restrictions on her will be in the same position at the end that she was in at the beginning. This does not disqualify her from receiving public attorney general fees. (Wilson, 192 Cal.App.4th at 926 (party committee that successfully defended against suit that would have terminated elected members entitled to fees for vindicating important public right).) The proper comparison is: would the public she serves have been worse off if she had lost the proceeding? Here, unquestionably, the 74

stay-away orders that TCHD sought, and the stigma they would have imposed, would have deprived Ms. Sterlings constituents of the vigorous contrarian representation she provides them, and ultimately almost certainly would have deprived them of the opportunity to be represented by her at all. Ms. Sterlings successful defense of these actions thus vindicated an important right affecting the public interest. E. Ms. Sterlings Victories Conferred a Significant Benefit on the General Public

The trial court held that Ms. Sterling did not confer a significant benefit on the general public for the same reason it held she did not vindicate an important right because after her victories TCHD continued to exclude her from Board meetings: [R]egardless of what happened with the restraining orders, she would continue to represent her constituents at the board meetings via a remote location established by Petitioner. Thus, her defense of the restraining order requests did not confer a benefit significant or otherwise on the general public or a large class of` persons. (4 RA 1265.) But again, the benefit incurred was not the lifting of the past restrictions, it was avoidance of the far more draconian future restrictions that TCHD sought to have the trial court impose, thereby

75

limiting the political rights of Ms. Sterling and her constituents. A significant benefit within the meaning of section 1021.5 is conferred whenever the claimants victory advances or preserves strong public policies. (County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 867, quoting Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 433.) By failing to appreciate the nature of the benefit, the trial court failed to appreciate that it provided significant protection to a sizable portion of the public. Preliminarily, it must be recognized that Ms. Sterling had nothing to gain personally from defeating the injunctions. She has no reason to be near the hospital or its officials or board members other than to represent her constituents. Her remuneration for doing so is

inconsequential she receives a $100 stipend for each Board meeting she attends, up to $500 a month. (3 RA 888 5, 3 RT 449:16-19.) And the board has already acted to deny her the minimal benefits that come with the position. (3 RA 888-889 8-9, 3 RT 450:1-11, 451:11-16.) In other words, Ms. Sterlings personal interest in this litigation was completely out of proportion from her cost of defending it. This in and of itself is enough to establish substantial benefit. This element is met if the cost of the claimants legal victory transcends his personal 76

interest that is, when the burden of the litigation was disproportionate to the plaintiffs individual stake in the matter. (Monterey/Santa Cruz County Bldg. and Const. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1523, quoting Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1151.) The benefit conferred by the result of a lawsuit cannot be assessed simply by looking at the final judgment. The significance of the benefit conferred is determined from a realistic assessment of all the relevant surrounding circumstances. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 690.) Here, Ms. Sterling continued her

representation of her constituents in governance of their local publiclyowned hospital, representation that the requested injunctions would have severely impacted. (See, 3 RA 888, 935 3, Ex. K; 1 RA 606-607 4; 1 RA 611 4.) This more than satisfies the significant benefit prong. For example, in Wilson, 192 Cal.App.4th 918, defendant by its victory vindicated the constitutional right of political parties and their members to choose their leaders. (Id. at 926.) This vindication conferred a significant benefit on a large class of persons belonging to

77

political parties, and therefore merited fees under section 1021.5. (Ibid.) Additionally, the requested injunctions, if granted, would have both backstopped and expanded the improper restrictions already in effect. First, as to backstopping the existing restraints, TCHDs Boards limitations on Ms. Sterlings participation in board meetings remain the subject of other proceedings.14 (2 RA 818 8; 5 RT 3:7-12.) This does not mean that Ms. Sterling did not secure an important right in the present case; it means that Ms. Sterlings victory here has preserved the viability of her position in the other proceedings. Had TCHD obtained the restraining orders it was seeking here, Ms. Sterling would have been forbidden to get anywhere near the Board meetings, and TCHD would have been trumpeting in the other proceedings that her position had become moot. In making its decision on the injunction petitions, the trial court observed: It is important to note that for the purpose of this hearing the court assumed the validity of the exclusion orders or sanctions by the board. Whether or not they are actually valid is not something that . . . I need to decide, and that issue may be decided in the future at another type of hearing. (5 RT 3:7-12.) 78
14

Certainly, Ms. Sterling will be in an even better position to serve the public interest after she has succeeded elsewhere in having the remaining restraints on her participation lifted. But we can be certain, when that day arrives, that TCHD will not be volunteering to reimburse her in some other proceeding for the considerable expense it put her to here. The fee hearing in the court below was the time and place for TCHD to face the consequences of trying, and failing, to keep Ms. Sterling from doing her job through its meritless demands for eight restraining orders. By focusing on the non-issue of whether Ms. Sterlings sequestration had been terminated, the trial court failed to address the substantial benefit element of private attorney general fees. F. The Necessity and Financial Burden of Private Enforcement Made a Fee Award Appropriate

Finally, the trial court concluded that Ms. Sterling failed to satisfy the necessity and financial burden of private enforcement are such as to make the award appropriate criterion, solely because she was a defendant instead of a plaintiff. The trial court seemed to believe, incorrectly, that defensive victories cannot satisfy this requirement. It said:

79

This factor has no application here. Respondent did not bring this suit to guard the guardians. She was sued in an attempt to keep her from making contact with District employees. This is not a case in which private enforcement is at issue. (4 RA 1265.) Under the courts reading of the statute, it would be impossible for a defendant to receive fees under section 1021.5. Defendants do not bring suits, and in particular, defendants do not bring suits to guard the guardians. This is simply a misunderstanding of the law. Defendants can be and often are awarded fees under section 1021.5, because defense of a suit, particularly defense of a suit brought by the government, can result in a substantial public benefit. The circumstances include: successfully defending against a mandate action that would have precluded or delayed a referendum to block commercial development (Wal-Mart Real Estate Business Trust, 132 Cal.App.4th at 622.) successfully defending against a mandate action that would have struck statements from a ballot pamphlet (Hull, 13 Cal.App.4th at 1768);

80

successfully defending against a validation action to determine whether an assessment scheme and the issuance of bonds were authorized (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1302);

successfully defending against a tort action for acts of civil disobedience protesting a proposed nuclear power plant (County of San Luis Obispo v. Abalone Alliance, 178 Cal.App.3d at 869). Each of these cases represents private enforcement in the sense

that plaintiff tried to use the courts to block the publics exercise of its political will, and a private party beat back the effort. That is precisely what happened here. TCHD tried to thwart the choice of thirty-four thousand voters as to who would stand up to the TCHD administration and Board majority for them, and nobody but Ms. Sterling was in a position to fight back. Indeed, the problem here is that the government itself was expending considerable public resources to thwart the democratic process. This left Ms. Sterling, standing alone, to shoulder the burden of defending the right of her constituents to be heard. At the end of the trial, the court noted:

81

The board and the C.E.O. have taken many actions against Ms. Sterling. This includes sanctions, loss of medical and insurance benefits, exclusion from Board meetings, a lawsuit, referring criminal charges to the district attorneys office, and these restraining orders. The taxpayers have funded the Board in all these actions. And I note as a side note that there were three lawyers here at all times for the Board. Ms. Sterling is apparently using her own resources, and these proceedings are obviously very expensive to all parties. (5 RT 4:18-23.) Thus, in a very real sense, Ms. Sterling was called upon in this case to guard the guardians, and should in all justice be compensated for mounting private enforcement when public enforcement was unavailable because in fact the public entity was the opposing party. A proper assessment of the necessity and financial burden requirement examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful partys attorneys.

(Conservatorship of Whitley, 50 Cal.4th at 1214.) Ms. Sterlings fee application satisfied the necessity and financial burden criterion with respect to both.

82

As to the first issue, private action is necessary where the party claiming fees is pitted against a governmental agency, or where no governmental agency stands ready to vindicate the public rights the claimant defends. (Conservatorship of Whitley, 50 Cal.4th at 1214; Woodland Hills, 23 Cal.3d at 941.) The necessity of private

enforcement has long been understood to mean simply that public enforcement is not available, or not sufficiently available. (Conservatorship of Whitley, 50 Cal.4th at 1217; Wilson, 192 Cal.App.4th at 926.) Here, Ms. Sterling was sued by a governmental agency, the Tri-City Healthcare District, and no governmental agency came forward to defend her; private action was therefore necessary. As to the second issue, the financial burden of private action merits a fee award when the cost of the claimants legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter. (Conservatorship of Whitley, 50 Cal.4th at 1215; Woodland Hills, 23 Cal.3d at 941.) A fee award will be appropriate except where the expected value of the litigants own monetary award exceeds by a substantial margin the actual litigation costs. (Conservatorship of Whitley, 50 Cal.4th at 1216; Wilson, 192 83

Cal.App.4th at 926-27.) Here, Ms. Sterlings monetary award was zero, and her litigation costs were well over $100,000. (2 RA 824-825 33.) Again, the cost of defending these lawsuits was totally out of proportion to Ms. Sterlings personal stake the financial rewards to her of serving in her elected position are de minimis, whereas the cost of defending against eight expedited petitions for permanent injunction was substantial. The litigation was a significant financial burden. The fact that Ms. Sterling might also have had a personal desire to serve out her term in elected office without the impediment of the injunctions TCHD sought is of no moment in this analysis. [A] litigants personal nonpecuniary motives may not be used to disqualify that litigant from obtaining fees under Code of Civil Procedure section 1021.5. (Conservatorship of Whitley, 50 Cal.4th at 1211; Wilson, 192 Cal.App.4th at 927.) The purpose of the statute is not to compensate only those litigants who have altruistic or lofty motives, but rather to compensate all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms. (Ibid.) That is what Ms. Sterling did, and that is why she merits a fee award.

84

IV.

CONCLUSION The trial court failed to realize that Ms. Sterling deserved a

private attorney general fee award, because it failed to appreciate what is required to satisfy the criteria of the statute. This was an error of law that this Court must correct.

DATED: April 25, 2012 THE MCMILLAN LAW FIRM, APC Scott A. McMillan, SBN 212506 Evan Kalooky SPIEGEL LIAO & KAGAY, LLP

By______________________ Charles M. Kagay Attorneys for Respondent/Cross-Appellant

85

CERTIFICATE OF WORD COUNT (California Rules of Court, rule 8.204(c)(1)) The text of this brief consists of 17,108 words as counted by the Corel WordPerfect version X4 word-processing program used to generate the brief. DATE: April 25, 2012 _______________________________ Charles M. Kagay Attorney for Respondent/Cross-Appellant

86

CERTIFICATE OF SERVICE I, Scott A. McMillan, declare: I am employed in the State of California and over the age of eighteen years, and not a party to the within action; my business address is 4670 Nebo Drive, Suite 200, La Mesa, California 91941. On April 25, 2012, I served the following documents: 1. [X] RESPONDENT/CROSS-APPELLANTS BRIEF as for those served by mail as identified in the service list, by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Diego County, California addressed as set forth below: SEE SERVICE LIST I am readily familiar with the firms practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 25, 2012, at the City of La Mesa, County of San Diego, California.

__________________________ Scott A. McMillan

D059810

SERVICE LIST

Charles Marriott Kagay Spiegel Liao & Kagay LLP 388 Market St Ste 900 San Francisco, CA 94111-5311 Jeremy Brooks Rosen Horvitz & Levy LLP 15760 Ventura Blvd 18th Floor Encino, CA 91436-3006 Evelyn F Heidelberg Procopio, Cory, Hargreaves & Savitch, LLP 525 B Street, Suite 2200 San Diego, CA 92101 Hon. Richard E. Mills San Diego County Superior Court North County Regional Center 325 South Melrose Vista, CA 92081 Clerk, Supreme Court of California 350 McAllister Street, Room 1295 San Francisco, CA 94102

Attorney for Respondent and Appellant Kathleen Sterling (By Mail) Attorneys for Petitioners (By Mail)

Attorneys for Petitioners (By Mail)

Trial Judge Case No. 37-2011-00052069

Electronic Copy (CRC, Rule 8.212(c)(2)(A)(I) CASCT Website Address: http://www.courts.ca.gov/7423 .htm

D059810