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Cross-Appellant Opening Brief in TriCity v. Sterling

Cross-Appellant Opening Brief in TriCity v. Sterling

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Published by Scott A McMillan
Respondent's brief and Cross appellant's opening brief filed on behalf of Kathleen Sterling in the failed restraining order case of TriCity Healthcare District v. Kathleen Sterling.
Respondent's brief and Cross appellant's opening brief filed on behalf of Kathleen Sterling in the failed restraining order case of TriCity Healthcare District v. Kathleen Sterling.

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Published by: Scott A McMillan on Apr 26, 2012
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04/26/2012

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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 TCHD’s 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. It turns out

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TCHD’s only citation for the court’s supposed error is “Ante, p.

8

(continued...)

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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 he’s not afraid, he’s not in fear, he’s

not entitled to a restraining order because he’s 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 TCHD’s 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, TCHD’s

(...continued)

8

17.” (AOB at 33.) At page 17, the Opening Brief says:

The court found that Crooks was “not entitled to a

restraining order because he’s not afraid of Sterling,” but

instead is simply “concerned” about her. (5 RT 13:20-24.)

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showing was wholly inadequate to justify an injunction regardless of

whether Mr. Crooks feared Ms. Sterling.

In other words, TCHD’s 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.

TCHD’s 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

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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 well-

entrenched 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 sub-

arguments: 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

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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 TCHD’s 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

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