re: petition for administrative rulemaking to amend the...

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October 16, 2017

VIA EMAIL

Mr. J. Keith Gilless, Chairman Matt Dias, Executive Officer State Board of Forestry and Fire Protection P.O. Box 944246 Sacramento, CA 94244-2460 Email: [email protected] Email: [email protected]

Re: Petition for Administrative Rulemaking to Amend the Program for Licensing, Certification, and Discipline of Certified Rangeland Managers

Dear Chairman Gilless and Board of Forestry and Fire Protection:

Rancho Guejito hereby petitions the Board of Forestry and Fire Protection (“Board”) to undertake a comprehensive review and revision to the program for licensing, certification, and discipline for “certified rangeland managers” (“CRMs”), pursuant to California Government Code (“Cal. Gov. Code”) section 11340.6. We appreciate your attention to this matter and respectfully request the Board’s careful consideration and prompt response.

I. INTRODUCTION

A. Rulemaking Authority Under Cal. Gov. Code Section 11340.6

Rancho Guejito makes this request pursuant to Cal. Gov. Code section 11340.6 (i.e., the Administrative Procedure Act), which states, “any interested person may petition a state agency requesting the adoption, amendment, or repeal of a regulation . . . . This petition shall state the following clearly and concisely: (a) the substance or nature of the regulation, amendment, or repeal requested; (b) the reason for the request; and (c) reference to the authority of the state agency to take the action requested.” Further, Cal. Gov. Code section 11340.7, subsection (a), provides:

Upon receipt of a petition requesting the adoption, amendment, or repeal of a regulation pursuant to Article 5 (commencing with Section 11346), a state agency shall notify the petitioner in writing of the receipt and shall within 30 days deny the petition indicating why the agency has reached its decision on the merits of the petition in writing or schedule the matter for public hearing in accordance with the notice and hearing requirements of that article.

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Rancho Guejito requests that this matter be placed on the Board’s agenda for notice and hearing as promptly as possible so that the Board may immediately begin a 45-day notice and comment period, pursuant to Cal. Gov. Code section 11346.4, for the purpose of adopting the proposed amendments as permanent regulations at the Board’s regularly scheduled October 2017 meeting.

Wholly apart from the Administrative Procedure Act’s (“APA”) rulemaking provisions, which apply to all state agencies, California Public Resources Code (“Pub. Res. Code”) section 769, subsection (a) (“Section 769”) requires CRM licensees to “[b]e of good moral character and have a good reputation for honesty and integrity.” The Board is responsible for ensuring the enforcement of Section 769, and accordingly, Pub. Res. Code section 759 provides that the Board “may by regulation adopt such rules and regulations pursuant to Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code, as it determines are reasonably necessary to enable it to carry into effect the provisions of this article.”1 Further, Pub. Res. Code section 763, subsection (a) empowers the Board to establish an examining committee which, per Pub. Res. Code section 763, subsection (b)(6), may “[r]ecommend adoption of the rules and regulations or changes in and regulations which may be needed to affect this article.”

All of these authorities provide the Board more than ample authority to adopt both the proposed new regulations and the proposed amendments to existing regulations.

B. Interests of Petitioner

Per the California Section of the Society for Range Management (“CA-SRM”), the goal of the CRM licensing program is to “[e]stablish minimum standards for professional rangeland managers and provide a process for rangeland managers to demonstrate professional competency.” The Board’s own “Guidance on the Certified Rangeland Manager Program” reflects a similar intent: “[CRM] professional certification is designed to distinguish and maintain a professional level of rangeland management expertise and provide continuing education and accreditation services to the profession.”

While the purpose of the CRM licensing program is to establish standards of professional conduct and ethics, according to Pub. Res. Code section 772, the CRM program, like all certified programs, exists to “fully protect[] the public interest.” However, based on Rancho Guejito’s experience, the CRM licensing program does not have the adequate structure, organization, or procedures to accomplish its overarching purpose—to protect the public interest. The lack of enforcement for standards of professionalism, conduct, and character, which are set forth in the Pub. Res. Code and the relevant regulations, constitutes a public safety risk to those citizens and residents of the State of California who employ the services of CRMs.

1 Additionally, Title 14 California Code of Regulations (“Cal. Code Regs.”), section 1610 delegates power and discretion to the Board to “perform other functions necessary to the dispatch of the business of the Board in the Government Code . . . .”

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Rancho Guejito has had an exceptionally troublesome experience with the Board’s CRM licensing program and in particular with a Board-licensed CRM, against whom a Superior Court issued a three-year Workplace Violence Restraining Order. The Court held that there was clear and convincing evidence that the CRM had engaged in an unlawful act of violence and made credible threats of violence that would place a reasonable person in fear for his or her safety. Specifically, the Court found that the CRM had “demonstrated a history of alarming conduct, including making threats, gaining access to Rancho Guejito’s property by deception, attempting to force his way into Rancho Guejito’s office, disregarding directives to have no contact with Rancho Guejito personnel, changing e-mail addresses to avoid . . . electronic blocking of [his] unwanted emails, and confrontations with Rancho Guejito’s security officers.”2

On appeal, the Court of Appeal agreed with the trial court and affirmed the restraining order against the Board-licensed CRM. The Court of Appeal found that “[t]he escalating nature of [CRM’s] conduct, including his aggressive and combative interactions with Rancho Guejito security personnel after he had made threatening statements and continued to contact other employees, demonstrated a reasonable probability that [he] would continue to engage in this type of conduct, and would engage in additional threatening and violent behavior if not restrained from doing so.3

Rancho Guejito sought the Board’s help—although without any significant or helpful result. These highly negative experiences with the Board’s CRM licensing program form the bases of Rancho Guejito’s proposed changes to the CRM licensing and certification program outlined in this Petition. If CRMs are to be given a privileged position under state law and regulation, they should be held to the same high standards and clear regulation as other state-sanctioned and regulated professions. Rancho Guejito therefore requests that the Board approve the following proposed changes under its rulemaking authority pursuant to Cal. Gov. Code sections 11340.6 and 11340.7.

II. PURPOSE

Rancho Guejito requests that the Board:

1. Adopt proposed new regulatory section Title 14 Cal. Code Regs., section 1650.1, to ensure enforcement of the requirement that licensees have “good moral character” and a “good reputation for honesty and integrity” as set forth in Pub. Res. Code section 769;

2 See Attachment 1: Superior Court of California, San Diego County, Decision After Evidentiary Hearing on Petition for Workplace Violence Restraining Orders, Case No. 37-2012- 51611 (Apr. 16, 2012). 3 See Attachment 2: Rancho Guejito Corp. (D062161, July 11, 2012) [Court of Appeal, Fourth Appellate District].

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2. Adopt the proposed amendments to Title 14 Cal. Code Regs., section 1650, subsection (c)(2), to ensure better enforcement of the professional standards set by the independent society charged with administering the CRM certification program;

3. Adopt the proposed revisions to Professional Foresters Examining Committee (“PFEC”) Policy No. 8, which currently allows the Board’s Executive Officer to forgo investigation of a CRM where that CRM’s failures are well documented, to be consistent with the APA;

4. Adopt the proposed new regulation, Title 14 Cal. Code Regs., section 1650.1, subsection (f), to oversee and maintain impartiality in all CRM disciplinary proceedings;

5. Consider and adopt amendments to the Board’s official California Public Records Act (“CPRA”) policy, to adhere to the intent of the CPRA, specifically, to facilitate transparency among the non-Board-member employees who conduct the Board’s public business;

6. Adopt the proposed changes to [unnamed section], to provide a more transparent administrative structure for the Board’s oversight of the Cal-Pac CRM Certification Panel, and through it, the CRM licensing program;

7. Adopt the proposed amendments to Title 14 Cal. Code Regs., section 1650, subsection (c)(4), to improve enforceability of the Professional Society Reporting Requirements, including the timely submission of annual reports by internal certification panels to the relevant professional societies and/or public agencies.

III. Proposed Regulatory Changes

Rancho Guejito is seeking regulatory changes for disciplinary investigations involving CRMs, including the addition of new regulatory section Title 14 Cal. Code Regs., section 1650.1, and related amendments to Title 14 Cal. Code. Regs., section 1650, subsection (c).

A. Current Rules Fail to Provide Enforcement Requirements for Good Moral Character Requirement, Pursuant to Section 769, and Enforcement Requirements for Professional Standards Set by the Society for Range Management

Under Section 769, applicants for Board licensing under the Professional Foresters Law are required to “[b]e of good moral character and have a good reputation for honesty and integrity.”

Based on Rancho Guejito’s research and experience, the Board does not consider a violation of Section 769 as grounds for any sort of informal or formal disciplinary action. To illustrate, according to the Board, an individual against whom a three-year Workplace Violence Restraining Order has been entered, for, among other offenses, making threats, gaining access to property by deception, and disregarding directives to have no contact with personnel, is an individual worthy of retaining a state-sanctioned license.

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Additionally, under Title 14 Cal. Code. Regs., section 1650, subsection (c)(2),

[f]or independent certification programs submitted by a professional society or public agency pursuant to Section 772 of the Code, the following process shall apply: . . . The PFEC shall be notified by the appropriate society or public agency of any Certified Specialist who is guilty of violations of professional standards and is issued discipline pursuant to the respective certification program. The certified Specialist shall be subject to disciplinary actions by the Board as defined in this chapter for violation of those standards, or for violation of those standards promulgated by the Board pursuant to Section 778 of the Code.

However, in practice, CRM professional standards—promulgated by the Society for Range Management (“SRM”) and adopted by Cal-Pac—are not considered in informal or formal disciplinary proceedings. For example, the Standards of Conduct for SRM Members Providing Public Service (“Standards”) states, “[h]onesty, respect, and courtesy, when associated with interests common to the entire Society membership, constitute the foundation of our ethics.” More specifically, the Standards provide that rangeland professionals “will act with fairness and respect toward their employer[s].” If the guidelines for disciplinary proceedings continue to fail to account for deviations from the CRM professional standards, there is no value to the existence of these standards. The CRM professional standards, as well as Section 769, are only useful insofar as they are consistently and effectively enforceable against offending CRMs.

To enable more effective enforcement of both the CRM professional standards, as well as the “good moral character” and “good reputation” requirements of Section 769, this Petition requests the addition of a new regulatory section, Title 14 Cal. Code Regs., section 1650.1 (“Section 1650.1”).4 Section 1650.1 proposes a more defined process for informal and formal disciplinary proceedings, including: (1) consideration of the respondent’s good moral character; (2) consideration of the respondent’s reputation for honesty and integrity; and (3) consideration of the respondent’s adherence to established professional and ethical standards. Proposed Section 1650.1 will add greater clarity, specificity, and consistency to both informal and formal disciplinary proceedings, and ensure that such proceedings address all relevant, inappropriate conduct by CRMs.

B. Current Rules Promote the Use of Illegal Underground Regulations

Under the current Pub. Res. Code section 775, “the [B]oard may upon its own motion, and shall upon the verified complaint in writing of any person, cause investigation to be made of the actions of any person licensed pursuant to this article.”

4 See Attachment 3: Proposed Regulatory Changes For Disciplinary Investigations Involving Certified Rangeland Managers, New Regulatory Section, 14 Cal. Code Regs., section 1650.1 (Disciplinary Guidelines for Certified Specialists).

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In January 2007, however, the Board adopted PFEC Policy No. 8, which allows the Executive Officer to skip this mandatory investigation requirement if he/she determines that “failures of the RPF/Certified Specialist (CRM) responsibility are well-documented.” PFEC Policy No. 8, which provides that an investigation occur only if “the issues are not well-documented,” contravenes the Pub. Res. Code and constitutes an illegal underground regulation in violation of the APA.

Pursuant to Cal. Gov. Code section 11342.600,

[r]egulation means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.

According to the California Office of Administrative Law, “[i]f a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA when it is required to, the rule is called an ‘underground regulation,’” and state agencies are prohibited from enforcing underground regulations. A policy that enables the Board to shirk the mandatory investigation requirement of Pub. Res. Code section 775 functions as an illegal underground regulation and diminishes accountability to the public, as well as the appearance of a clear and transparent investigative process for verified complaints.

Consequently, this Petition proposes that the Board take appropriate action to ensure that PFEC Policy No. 8 is consistent with the APA. This Petition further requests the addition of new regulatory section, Title 14 Cal. Code Regs., section 1650.1, subsection (b), which states, in part, “upon receipt of a verified complaint, the Board shall cause investigation to be made of the actions of the person licensed as a Certified Specialist,” and that “such an investigation shall not be limited to a review of submission of the materials submitted as part of the complaint.”5

C. Current Rules Fail to Preserve Independent, Fair, and Unbiased Decision-Makers in Disciplinary Proceedings

Disciplinary proceedings for CRMs have virtually no guidelines or required process. As a result, after any person files with the Board a written verified complaint involving the actions of any person licensed under an independent certification program, the accused licensee is free to curry favor with those intimately involved in the disciplinary process.

For example, after Rancho Guejito filed its complaint with the Board, the accused licensee was in touch with members of the Cal-Pac CRM Certification Panel—the very panel charged with conducting an unbiased consideration of the merits of Rancho Guejito’s administrative complaint. Additionally, with regard to Rancho Guejito’s administrative 5 See Attachment 3: Proposed Regulatory Changes For Disciplinary Investigations Involving Certified Rangeland Managers, New Regulatory Section, 14 Cal. Code Regs., section 1650.1, subsection (b).

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complaint, the Board delegated the duty to conduct an “investigation” to the Cal-Pac Panel, but failed to exercise any meaningful oversight. Panel members knew the accused CRM and served with him as a fellow organizational president and director, yet neither the Board nor the Panel appeared to recognize the significant likelihood of bias influencing the investigation. There was no internal assessment of partiality toward the accused CRM. There was no discussion of recusal.

All complainants deserve a fair and unbiased consideration of the merits of their complaint(s). To safeguard the integrity of the investigative process, the Board, as well as other administrative and disciplinary bodies, must adhere to a well-defined set of rules intended to preclude the emergence of bias and partiality. This Petition requests the addition of new regulatory section, Title 14 Cal. Code Regs., section 1650.1, subsection (f), which sets forth guidelines for managing ex parte communications between the complainant and/or the subject of the complaint and those overseeing the investigation, as well as the recusal process that may result from the ex parte disclosures.6

D. Current Rules Fail to Encourage Transparency for Non-Board Members Who Conduct Public Business on Behalf of the Board

Many individuals conduct public business for the Board and its associated committees; however, the Board does not employ all of these non-member individuals. Such individuals generate public records related to the Board’s “public business,” and thus these records are subject to disclosure under the CPRA. Yet these records are often stored on the servers of other agencies.

The California Supreme Court recently held that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 629 [“Consistent with the Legislature’s purpose in enacting CPRA, and our constitutional mandate to interpret the Act broadly in favor of public access . . . we hold that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”].) City of San Jose confirms two critical points. First, that “an agency’s public records ‘do not lose their agency character just because the official who possesses them takes them out the door.’” (Id. at 623.) Second, that “CPRA requests invariably impose some burden on public agencies” and “[u]nless a records request is overbroad or unduly burdensome, some agencies are obligated to disclose all records they can locate ‘with reasonable effort.’” (Id. at 627.) (See also Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 291 [“We consider it unlikely the Legislature intended to render documents confidential based on their location, rather than their content.”]; Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 373 [“[I]t is indisputable that any emails contained on

6 See Attachment 3: Proposed Regulatory Changes For Disciplinary Investigations Involving Certified Rangeland Managers, New Regulatory Section, 14 Cal. Code Regs., section 1650.1, subsection (f).

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[public] computers, to the extent they contain ‘information relating to the conduct of the public’s business’, constitute ‘public records’ for the purposes of the PRA.”].)

The Board alone retains the burden of producing public records created by non-Board-member employees that may be acquired through “reasonable effort”—even if those records are stored on the servers of other agencies or within personal accounts. While CPRA does not prescribe specific methods for searching for documents, in City of San Jose, the Court suggested that agencies themselves are in the best position to adopt policies that will satisfy their obligations under public records laws. (Id. at 628.) Rancho Guejito requests that the Board take proactive steps to fulfill the intent of the CPRA in facilitating transparency among the various individuals it enlists to conduct the Board’s public business.

The Board should formulate and adopt an official CPRA policy that is faithful to the intent of the CPRA, similar to other state agencies, as well as federal agencies operating under the Freedom of Information Act. As part of that policy, the Board should direct all individuals conducting public business for the Board that when sending or receiving any correspondence that constitutes a public record, to forward or “cc” such correspondence to a defined public records email address under the control of the Board. Such a directive would facilitate the prompt documentation and filing of correspondence that constitute public records by individuals using private and/or other state or federal agency e-mail accounts.

E. Current Administrative Structure for Oversight of the CRM Licensing Program Lacks Transparency

Currently, the role of the Cal-Pac CRM Certification Panel and its relationship to the Board lacks clarity. To illustrate, prior to Rancho Guejito’s lawsuit, the Panel regularly invoked the privileges of the Bagley-Keene Open Meeting Act (“Open Meeting Act”)—specifically, the ability to hold “closed sessions” that exempts records of such sessions from disclosure under the CPRA. In responses to CPRA requests in 2014, the Board invoked the Open Meeting Act as justification for redacting the entirety of the substantive portion of “closed session” meeting minutes of the Panel. While a Superior Court held that the Cal-Pac CRM Certification Panel is not subject to the Open Meeting Act, the Panel has continued to invoke the Act’s privileges as recently as November 2016. Although the Panel can “choose” to adhere to the noticing requirements of the Open Meetings Act, it seems unacceptable for the Panel to “choose” to avail itself of the protections provided by the Act—which the Superior Court held did not apply—to hold closed-door meetings in state offices.

This Petition requests that the Board clarify the applicability of the Open Meeting Act to those bodies that operate under its control or direction to facilitate accountability and transparency of government activities.

F. Current Rules Fail to Provide Enforcement Mechanisms for Professional Society Reporting Requirements

Title 14 Cal. Code Regs., section 1650, subsection (c)(4) (“Section 1650(c)(4)”) states,

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Prior to March 1 of each calendar year, those Professional Societies and public agencies with independent certification programs shall submit to the PFEC a report which describes the previous calendar year accomplishments of the certification program, including but not limited to the number of applicants for certification, the approvals, denials, copies of examinations, and a summary of disciplinary actions, to insure the program fully protects the public interest. Failure to submit the report may result in a full review which may result in the rejection of the Certification program by the Board.

Rancho Guejito’s lawsuit revealed that Cal-Pac had been severely delinquent in filing annual reports on their administration of the CRM certification program, as required by Section 1650(c)(4). Prior to the litigation, Cal-Pac had not properly filed the required annual reports for five years. Rancho Guejito’s research revealed that Cal-Pac has only filed the required annual report on time four times since 1996 (and none have been filed on time starting the year 2000 to the present), and, furthermore, that the Board’s files appear to be entirely devoid of reports for the years 2006 and 2007. Most recently, for 2015, even after receiving reminders about filing requirement, Cal-Pac filed its annual report on or around April 15, 2016—approximately six weeks after the March 1 deadline specified in Section 1650(c)(4). For the 2016 report, the annual report was late again.

This Petition proposes amendments to Section 1650(c)(4) that will help clarify the purpose and content of the annual reports produced by relevant internal certification panels.7 Through revised Section 1650(c)(4), this Petition proposes that the annual report shall describe the scope of the panel’s authority in relation to the duties set forth in Title 14 Cal. Code Regs., section 1650, subsection (c)(1), and provide an assessment of the performance of those duties over the previous calendar year. Further, this Petition proposes that failure to submit the annual report shall result in a review by the PFEC at a public hearing, which may result in the rejection of the certification program by the Board. With well-defined rules concerning the content of the annual reports, as well as enforceable consequences for failure to timely file an annual report, both the internal certification panels and the professional societies and/or public agencies that establish the panels will be motivated to comply with the March 1 deadline.

IV. CONCLUSION

For all the reasons set forth above, Rancho Guejito respectfully requests that the Board adopt the proposed revisions and amendments to the program for licensing, certification, and discipline for CRMs at its October 2017 meeting. The proposed amendments will generate greater clarity, transparency, consistency, and enforceability with regard to the current regulations, and result in the better administration of the CRM program.

7 See Attachment 3: Proposed Regulatory Changes For Disciplinary Investigations Involving Certified Rangeland Managers, Amendment to Existing Regulation, 14 Cal. Code Regs., section 1650, subsection (c)(4).

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Very truly yours,

/s/ Taiga Takahashi

Taiga Takahashi of LATHAM & WATKINS LLP

For Rancho Guejito Corporation

Enclosures

cc (via email): Ali Karaouni Dan Stapleton Hank Rupp

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RANCHO Petitioner,

vs.

APR 16 Z02 By. L. M11ttJR;. Deputy

Superior Court of the State of California County of San Diego, North County Division

GUEJITO CORPORATION, Case No. 37·2012-00051611-ClJ.PT-NC

DECISION AFTER EVIDENTIARY HEARl ON PETmON FOR WORKPLAC VIOLENCE RESTRAINING ORDERS .

Respondent

19 On April 11, 2012, the Court conducted an evidentiary hearing on Rancho Guejlto 20 Corporation'• petition for wcnplace vk:llaiiC81'81trainng order& The evidentiary heartng was 21 conducted in Dept. N·29, Judge Robert P. Dahlqulll presiding. Petitioner Rancho GUBjlto 22 corpcriion w81 repre1ented at the heartng by its counaet, Gregory c. Kane. RNpOI'Ident 23 waa ~ at lhe hearing, and was repraented by hla COU'Isel, Stwen P. 24 McDonald. AJ.Ihe t}eattng, ~~~ COU't heard tnllmony and received dec:III'Btions and exhibits 25 Into evidence. AJ.Ihe conclusiOn of th• hearing, the Co\ri took the matter under tubmllllon. 28

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The Coutt haa carsrutly considered lha evidence presentatt at the hearing, and It now . . prepared to render Its decfslon.

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The Court has detennJned that the legal requirements for issuance of a workplace 2 violence restraining order have been satisfied In this case, and that a wortqllace vtolence 3 restraining order shoukllssue. 4 The relevant portion of Code of Civil Procedln section 5X1.8, IUbl. ffi provldea: •If 5 the judge ~nds by clear and ~ndng evidence that the respondent engaged In unlawful 6 vtotence or made a audible threat of vlolenc:e, an Injunction lhall lsaue prohibiting flriler 7 unlawful violence or threats of violence.• 8 In thll cate, the Cour1 finds that respondent engaged in 9 IJI1Iawful vtolence. One act of I.IUwful Violence OCCUrT8d on December 2, 2011, when

10 went to the fenced-In property or Ranc:ho Gu!'jlto Cofporatlon (•Rancho Guejilo1, obtained 11 entry to property by subterfuge and then 1rted to force his way Inside Rancho GuiJto's offlcea. 12 (Oeclarallon d Jecquellne Soto, attached to Petition for Workplace Violence Restraining 13 Orders, filed March 5, 2012) 14

. The Court U1her finds that made a credible ttnat of vJolence. •Credible ttnat 1, 15 of violence" II defined to Include a •courwe of conduct that would place a I'Hionable person In 16 fear for hi• or her aafety, or the safety of his qr her Immediate family, arx:t that MJVes no 17 legWmate purpose.• Code of Civil Proced1n ~ 527.8, subs. (b)(2) ... COlne of conduct' 18 11 a pattem of conduct compo88d of a sertes of acte over a period or time, however shor1, 19 evidencing a ·c;onUnulty of purpose, Including following ~ stalking an employee to or from the 20 place of work; erQring the wortcplaca; following an employee durlng hOU'8 of employment; 21 making telephone calfs to an employee; or sendtlg conespondanc:a to an employee by eny 22 means, Including, but not limited ~· the ._.. ol the ~or private mallt, lmeraftlce matl, fax, 23 or computartHMM.• Code of Civil Procec:Me sectlon527.8, aubs. (b)(1). 24 waa prevlou&ly an _Independent coniUitant for Rancho Gu-Jito. 25

prov\ded prornatonal rangeland management seMces to Rancho ~ tn 2006. Hewn 26 terminated aa a conaLjtant to Rancho Guejlto Corporation sometime prior to 2011. Mtet he 27 wa• tennlnaled, he arranged a meeting with Rancho Guejlto Chief Operating ()ffiQer Hank 28

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Rupp end Rupp'a assls1alt, Sheryl Bametl The ~eting was held at an off-alte restaurant.

At the meeting, requ~ted payment of m~ than $300,000 for services and work

procfuct. ( prior tervices had been rendered under written Bgreements callng far

payment& In the range of $4,000 to $12,000.) Rupp did not agree to pay

became very angry and made atatementa that were conaidered by Rupp and Barnett to be ( threatening. For example, said wants to the effect that •H would be a lot bett• If I were your friend rather than your enemy.• When Rupp as~d for claiflcaUon, Peniue said

words to the effect of •you'll see: In the overall context of the ci~&tancn, these

statements reasonably C8UHCI Rupp and Barnett to fear far their safety.

After the meeting, was directed by Rancho Guejlto to have no further contact

with Rancho Guejlto personnel but ll'lltead to direct all f\J'ther communications to Rancho

Guejlta'a ablde attorney. cld not follgw this directive. He continued to contact Rancho Guejlto per1onnel by telephone, a-maH and In person. When Rancho Gue~to blocked

emBlls frcm regular .e-mail 8CCOlri, c:hanged his e-mail address and

continued Ia Hnd .mall to RanchO Guejito pei"'IMBI.

It wuln this context that went to the Rancho Guajlto property on December 2, . 2011. The pmperty Is fenti&d and secured. parked hit car cut of sight behind IDm8

vegetation and ap~ed the driveway gate on foal Using subterfuge, he pnuaded a

staff member, Jacqueline Soto, to open the gats. He then walked onto 118 property. He was

met by Sota outside of the otnca bulking. Seta did not know htm. ~ Biked to see

Bametl Solo movacl towa'd the office building, and followed. Bamellsaw some ct these events from her window, and par1lally opened the office door to Identity to Sato

and to tal that she would not meet with him. Soto went Inside the building.

followed her, and acc.ordlng to Soto, 1r1ed to force his way lnalde the office. • (Soto

Oecleratlon at paragraph 4) However, Barnett llliOlged to .clote ald lack the door.

then left the property.

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1 rehmed lo Rancho Guefito's property on two subsequent occasions to retrieve 2 certain Item& of peraonel property that he claimed belonged to him. On both subsequent 3 occaslcinl, confrontations between Pardue n Rancho Guejlto's I8CUrity officers oca.rrad. 4

At the hewing conducted on Aprl 11, 2012, the parties presented signif~C&r~Uy varying 5 versioN d these confft)f1(atJON. The Court does not baileve It 11 neceaaary .to determine lhe 6 exact sequence d eventa In each at these confron&atlona. The Court ls saUafiad 1\at on each 7 occaelon, was neadlully aggi'Bialve and confrontational. In the conteJCt of the totality 8 of the dnunalances (Inducing the meeUng at the restaurant, failure to honor 9 Rancho GueJitO'• requests for Pardue to ccmmunlcate only with Rancho Guejlto'a eot.rlHI,

10 ~nd Ule confrontation at Rancho Gue)lto's offices on Decembe~ 2), coliduct would

11 be alarming to a reasonable person. Hla conduct "wouud place a reasonable peraon 1n fear 12

for his or her nfety.• Code at Civil Proc:edura section 527.8, tubs. (bX2). 13 The Court has not aummarlzed In this written decision all of·lhe evidence presented at 14 the April11,2012 hearing. lnctaad, the Court has briefly Nnmarizedenough of the evfdenc?e 15 to Illustrate tome of the 1'8810118 for the Court'1 findings that engaged In ~i 16 I

violence and made a credible lhreat or viol!tnce, as thou tenns are defined by Code of Civil 11

Pruced&n ACtion 527.8. 18 Under conlroiRng appellate aulhority, "CCP §527.8{1) must ba read to include the 19 requirement thet the petitioner show that great or Irreparable harm Ia Ukely io occu abient the 20 injunction becauae the petitioner Is r&qUrad b make such a ahoWing under CCP §527.8(e) to 21 obtain a TRO: California Judges Benchgulde, Injunctions Prohlbltlng Cfvl Haranment and 22 . Worf<placaiPostaeconclary School VIolence §20.41 citing Scripps Helth v. Marin (1999) 72 23 C&I.App.4" 324, 334 -335. However, "(a) single ttnat ~ violence may be IUftidant to 24

es~llh a llkafthood of future hann.• ld. c:itlng City of San Jose v. Garbett (2010) 190 25 Cai.App.4".526, 642-543. 26 In this case, the COI.It ·finds that graat or Irreparable hann Is lkely to occur In lhe 27 abHnca of a worltplace violence restraining order because. has demonstrated a 28

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history of alarming conduct, Including the making of threats, gaining access to Rancho

GueJto's property by deception, attempting m force his way Into Rancho Guejlto's offices,

disregarding dlrac:tlws to have no contact with Rancho Guejlto peraonnel, changing &-mall

addresses to avoid Rancho Guejlto'a electtonic blocking of W'IW8nted e-maUa, and

confrontations with Rancho Guejlto'a securtty ofticara. Under the totality of the clrcinnstancea

of this case, it Is reasonable to conclude, that there Is a high likelihood of future harm If a

restraining order Is not Issued.

The Co\ri notes that version of events Is aomewl'lat different frOm those of

the Rancho Guapto witnesses. Neither side's version of events Is entirely aedlbte In every

resp~ct but, on balance, ~erdua's version of aventa Ia less Cl'8dlble than the Rancho Guejlto

witne1ses, particularly as to the events of December 2, 2011, when gained acc:eaa to

Rancho . Guejlto's property by subterfuge and then tried to force his way Into the Rancho Guejfto offices.

In opposlng the l88U8nc:e of a restraining Older, argues that Rancho Guejlto has aougtt the IAuance of a restraining order in order to prevent frOm exerclllng his

conatltutfonallyi)rotected right or free speech and right to petition the government far redrese •

of grievances. It Is true that lome of the actlona taken by after the October 2011

restatnrt meeting are Constttutionally protected activities. However, the Court Ia not relying

en eny of those activities as a basis for lasulng the restraining order, and the rwtralnfng order

will have no Impact on oonstitutlonally..protectsd actlvJUea. 11 ~ to lalk to

the press; he Is free to convey lnfonnaUon to. governmental agencies; and hal a free to petition

the govemment for rechN. But he Ia nat free to lrespass onto Rancho Guejlto'a property or

to harass Rancho Guejlto'l pen50r'V'81.

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1 The Col.l't will Issue the Workplace Violence Restraining Order After Hearing on the 2 Judicial Council form. 3

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ATTACHMENT 2

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1 of 1 DOCUMENT

RANCHO GUEJITO CORPORATION, Respondent, v.Appellant.

D062161

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT,DIVISION ONE

2013 Cal. App. Unpub. LEXIS 4845

July 11, 2013, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIALREPORTS. CALIFORNIA RULES OF COURT, RULE8.1115(a), PROHIBITS COURTS AND PARTIESFROM CITING OR RELYING ON OPINIONS NOTCERTIFIED FOR PUBLICATION OR ORDEREDPUBLISHED, EXCEPT AS SPECIFIED BY RULE8.1115(b). THIS OPINION HAS NOT BEENCERTIFIED FOR PUBLICATION OR ORDEREDPUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]APPEAL from orders of the Superior Court of San

Diego County, No. 37-2012-00051611-CU-PT-NC,Robert P. Dahlquist, Judge.

DISPOSITION: Affirmed.

COUNSEL: The McDonald Firm, Stephen P. McDonaldand Tina J. Arciaga for Appellant.

Sheppard Mullin Richter & Hampton and Guylyn R.Cummins for Respondent.

JUDGES: AARON, J.; NARES, Acting P. J., IRION, J.concurred.

OPINION BY: AARON, J.

OPINION

I.

INTRODUCTION

Rancho Guejito Corporation (Rancho Guejito) filed apetition seeking a workplace violence restraining orderagainst after a series of incidentsinvolving after Rancho Guejito refused to pay

approximately $326,000 for services that heclaimed he had provided to Rancho Guejito. Prior to thehearing on Rancho Guejito's petition for a permanentworkplace violence restraining order, filed aspecial motion to strike under the anti-SLAPP (strategiclawsuit against public participation) law. The trial courtdenied the motion to strike, and proceeded to issue athree-year workplace violence restraining order against

On appeal, contends that the trial court erredin denying his anti-SLAPP motion, and further contendsthat the trial court erred in issuing the workplace violencerestraining order. We [*2] conclude that has notestablished reversible error, and, therefore, affirm theorders of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Page 1

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A. Factual background

Rancho Guejito is a 23,000-acre ranch in San DiegoCounty. In 2005 and 2006, provided rangelandmanagement services to Rancho Guejito pursuant towritten contracts. The contracts provided thatwould be paid between $4,000 and $12,000 for hisservices. Although the record is not clear, it appears that

may have continued to provide services to RanchoGuejito without a written contract until he was terminatedas a consultant sometime in mid-2011.1

1 The parties dispute involvement atRancho Guejito after the completion of theoriginal contracts.

In October 2011, asked for a meeting withRancho Guejito's chief operating officer and generalcounsel, Hank Rupp. Rupp and his assistant, SherylBarnett, agreed to meet with at a restaurant. Atthat meeting, presented Rupp and Barnett with an"invoice" for $326,000 for services and work that heclaimed to have provided to Rancho Guejito. When Ruppwould not agree to pay what wasdemanding, became angry. At some [*3] point

said, "It would go a lot better for Rancho Guejitoif I was your friend rather than your enemy." When Ruppasked what he meant by that statement,responded, "You'll see." According to Barnett, during theexchange, "got very red in the face and his jawstarted moving back and forth and his tone of [] voiceaccelerated." Rupp could tell that was "reallyangry" and described demeanor as "seething."Rupp interpreted "You'll see" as a threat thatwent beyond extortion.

After that meeting, Rancho Guejito hired an outsideattorney, Gregory C. Kane, to deal with OnNovember 1, 2011, Rancho Guejito informed thathe was not to contact Rancho Guejito employees, butinstead, should have contact only with Kane.

Despite having been told to communicate only withKane, continued to contact Rancho Guejitoemployees by telephone, e-mail, and in personconcerning his demands. For example, on November 17,2011, sent an e-mail to Rupp asking when RanchoGuejito would respond to his demands for payment.Barnett responded to this e-mail by telling that hewas to direct his communications to Kane. Kane sent ane-mail [*4] to the following day reminding

to communicate only with Kane and directing himnot to try to communicate with Rancho Guejitoemployees. Kane informed that e-mailaddress was being put on a "'blocked sender list.'"

On December 2, 2011, went to the RanchoGuejito property. The property is fenced and secured.

parked his car behind some vegetation, out ofsight of the offices, and approached the gate on foot.Over an intercom told Jacqueline Soto, a RanchoGuejito employee, that he had a delivery. Because Sotodid not know he was able to get her to open thegate. walked onto the property, and Soto met himoutside the office building. asked to see Barnett.Soto started to walk toward the office building, and

followed her. Barnett looked out the window andrecognized Barnett opened the office door justslightly and told Soto that the man was She alsoinformed that she would not meet with him.

Soto went into the office immediately, and Barnettclosed and locked the door. continued to talk toBarnett through the door. She told him, "I'm not talkingto you or accepting anything from you." [*5]asked for a pen, and Barnett repeated what she had justsaid. Barnett knew that had been told not tocontact Rancho Guejito employees and was "unnerved"by his appearance at the office. She was determined notto open the door. stepped up onto the stoop and"shoved something into the door." Barnett worried that hewas going to try to come into the office. Soto interpreted

actions as "tr[ying] to force his way inside theoffice." The envelope that left contained his "finalinvoices."

Kane e-mailed that day to again direct himnot to make any efforts to contact Rancho Guejitoemployees.

On December 13, 2011, Kane sent an e-mailasking him questions about whether had beenhunting on the Rancho Guejito property over the pastfour years. responded to Kane two days later.

On January 10, 2012, wrote a letter toTheodate Coates, a director of Rancho Guejito whoworks in New York. In the letter, acknowledgedthat he had hired a helicopter to fly him over the ranchproperty. threatened to report Rancho Guejito togovernment authorities concerning some dead cattle thathe had seen on the ranch, as well as with respect [*6] to

013 Cal. App. Unpub. LEXIS 4845, *2

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some grading that he had observed on the property. WhenKane found out about letter, he e-mailedyet again to inform him that his actions wereunacceptable and that he was going to be placed on the"'blocked sender'" list for Rancho Guejito personnel inNew York, as well. Kane also advised that if hecontinued to engage in similar behavior, Rancho Guejitowould seek a restraining order against him. In response,

stated, "It seems to me that the management therehas enough problems already without pissing me off."

On January 20, 2012, sent an e-mail to Kane,Rupp and other Rancho Guejito personnel in which heagain demanded payment and threatened to go to themedia with "all of the activities and actions that I haveobserved on the ranch." sent this e-mail from adifferent e-mail address, apparently in an effort to avoidhaving his e-mail blocked.

On February 14, 2012, Rancho Guejito employeesnoticed a white truck driving up the dirt road that led tothe entrance gate to Rancho Guejito. The employeesrecognized as the driver. He was accompanied bytwo men.2 The employees drove toward the mainentrance to see what was doing. [*7]stopped the truck and one of the passengers began takingphotographs of the property. The employees believed that

was inspecting the mounted security cameras atthe entrance. Before the employees could make contactwith he and the man who had been takingphotographs got back into the truck and left.

2 states that the men who accompaniedhim were a journalist and a photographer.

Later in February, returned to the RanchoGuejito property on prearranged visits, ostensibly toretrieve certain personal items that he had left there.3 OnFebruary 17, 2012, Rancho Guejito personnel placed theitems outside of the Rancho Guejito gate. Upon arriving,

asked the security personnel, "'Who are you?What's your name?'" The security personnel described

demeanor as "confrontational and combative."4

took photographs of the Rancho Guejito securitypersonnel. After hooking up a trailer to his truck, heasked them, "'Do you have permits?'" One employeeinterpreted question as asking whether they hadpermits for their weapons. "[I]n an adversarial tone"

stated, "'You know this is a county road all theway up to the double gates[.]" [*8] asked otherquestions, but the security personnel continued to tell

that he was to direct his questions to RanchoGuejito's attorney, as he had been told numerous times.

became "agitated and confrontational when hewas told to speak to the lawyer." left some of thecages on the side of the road and said that he wouldreturn on another day to retrieve them.

3 The items included "severely rusted" wirecages and an "old boat trailer" that was alsorusted. Rupp stated at the hearing that hisunderstanding was that the items did not belong to

but explained that "rather than escalatethe situation, I agreed to just put the property outthere."4 One security guard testified that he noticed that

had a six- or seven-inch knife in his backpocket on this day.

returned on February 20, 2012, accompaniedby another man, to retrieve the remainder of his personalproperty.5 Security personnel were near the front gate ofthe property when arrived.6 immediatelysaid, "'Hope you guys haven't been waiting too long.'"The security personnel did not respond. then said,"'[T]ell Octavio, Jack and Lige we are not finished withthem.'" [*9] and his companion used cameras tovideotape and take photographs at the main gate,including photographs of the security cameras and thesecurity personnel. At one point, walked up to thegates and "removed a chain that was securing the gates."One of the Rancho Guejito security employees replacedthe chain. then said, "'Don't touch me.'" Thesecurity employee, who had not touchedresponded by saying, "'Don't touch me either.'"came within six inches of the employee's face. "[H]e wasgrinding his teeth and his chin moved forward, andpointing at [the security guard's] chest."demeanor was "'clearly combative.'" proceeded toargue with the employee as to whether the road was acounty road or not. The employee had earlier called Ruppto ask whether he should allow to drive past thedouble gates. After began walking back to histruck, Rupp responded by saying that the employeeshould allow to go down the road "to preventfurther problems."7 The employee told that Rupphad said to let proceed past the gates, but Purdueand his companion drove away.

5 identified his companion on this date asMark Larson. [*10] In a declaration, Larson

Page 32013 Cal. App. Unpub. LEXIS 4845, *6

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states that he is "a freelance writer and farmer."6 Security personnel observed that had aknife in his right rear pocket on this occasion, aswell.7 It appears from testimony during the hearingthat the road in question is a county road.However, Rancho Guejito had been givenpermission to place unlocked gates along the road.

B. Procedural history

Rancho Guejito filed a petition for a workplacerestraining order (the Petition) against on March5, 2012. That day, the trial court issued a temporaryrestraining order and set a hearing on the Petition forMarch 23.

filed a response and opposition to the Petitionon March 22, one day prior to the hearing.

On March 23, the trial court continued the hearing toApril 11, and reissued the temporary restraining orderagainst

On April 9, two days prior to the date of the hearingon the Petition, filed a special motion to strikeunder Code of Civil Procedure8 section 425.16, theanti-SLAPP law. He was not given a hearing date for themotion at that time, and he did not serve the anti-SLAPPmotion on Rancho Guejito prior to the April 11 hearing.

8 Further statutory references are to the Code[*11] of Civil Procedure unless otherwiseindicated.

The parties appeared for the hearing on the Petitionon April 11. The trial court determined thatanti-SLAPP motion would have to be decided prior to thecourt holding a hearing on the Petition. Rancho Guejito'sattorneys had not seen the motion until the date scheduledfor the hearing on the Petition. Counsel for RanchoGuejito reviewed the anti-SLAPP motion during a recess,and, because objected to the court maintaining thetemporary restraining order in effect if there was going tobe a further delay in the hearing on the Petition, electednot to file a formal response to anti-SLAPPmotion, and instead, orally opposed the motion.

The trial court denied anti-SLAPP motion.After denying the motion, the court heard witnesstestimony concerning the Petition and took the matter

under submission. On April 16, 2012, the trial courtissued a statement of decision in which it made findingsof fact with respect to the Petition and issued a three-yearworkplace violence restraining order against

filed a timely appeal from the court's April 16order.

III.

DISCUSSION

A. The anti-SLAPP motion

1. Legal [*12] standards

a. Legal standards regarding anti-SLAPP motions

"Whether section 425.16 applies, and whether theplaintiff has shown a probability of prevailing, are bothquestions we review independently on appeal." (Kashianv. Harriman (2002) 98 Cal.App.4th 892, 906; see alsoHMS Capital, Inc. v. Lawyers Title Co. (2004) 118Cal.App.4th 204, 212 (HMS Capital) [orders grantinganti-SLAPP motions are reviewed de novo].)

Section 425.16, subdivision (b)(1) provides: "A causeof action against a person arising from any act of thatperson in furtherance of the person's right of petition orfree speech under the United States or CaliforniaConstitution in connection with a public issue shall besubject to a special motion to strike, unless the courtdetermines that the plaintiff has established that there is aprobability that the plaintiff will prevail on the claim."

Resolution of a special motion to strike "requires thecourt to engage in a two-step process. First, the courtdecides whether the defendant has made a thresholdshowing that the challenged cause of action is one arisingfrom protected activity. The moving defendant's burdenis to demonstrate that the act or acts of which the plaintiff[*13] complains were taken 'in furtherance of the[defendant]'s right of petition or free speech under theUnited States or California Constitution in connectionwith a public issue,' as defined in the statute. [Citation.] Ifthe court finds such a showing has been made, it thendetermines whether the plaintiff has demonstrated aprobability of prevailing on the claim." (EquilonEnterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th53, 67 (Equilon).)

For purposes of an anti-SLAPP motion, "[t]he court


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considers the pleadings and evidence submitted by bothsides, but does not weigh credibility or compare theweight of the evidence. Rather, the court's responsibilityis to accept as true the evidence favorable to the plaintiff .. . ." (HMS Capital, supra, 118 Cal.App.4th at p. 212.) Aplaintiff "need only establish that his or her claim has'minimal merit' [citation] to avoid being stricken as aSLAPP. [Citation.]" (Soukup v. Law Offices of HerbertHafif (2006) 39 Cal.4th 260, 291.)

b. Legal standards related to a workplace violencerestraining order petition

Section 527.8 authorizes an employer to seekrestraining orders on behalf of its employees to preventthreats or acts of violence in the [*14] workplace byanother employee or a third person. (Scripps Health v.Marin (1999) 72 Cal.App.4th 324, 333-334 (ScrippsHealth).) Subdivision (a) of section 527.8 provides:

"Any employer, whose employee hassuffered unlawful violence or a crediblethreat of violence from any individual, thatcan reasonably be construed to be carriedout or to have been carried out at theworkplace, may seek a temporaryrestraining order and an injunction onbehalf of the employee and, at thediscretion of the court, any number ofother employees at the workplace, and, ifappropriate, other employees at otherworkplaces of the employer."

Pursuant to the statute, "'[u]nlawful violence' is anyassault or battery, or stalking as prohibited in Section646.9 of the Penal Code, but shall not include lawful actsof self-defense or defense of others." (§ 527.8, subd.(b)(7).) The statute defines "'[c]redible threat ofviolence'" as "a knowing and willful statement or courseof conduct that would place a reasonable person in fearfor his or her safety, or the safety of his or her immediatefamily, and that serves no legitimate purpose." (Id., subd.(b)(2).)

A "'[c]ourse of conduct'" is defined as "a pattern ofconduct [*15] composed of a series of acts over a periodof time, however short, evidencing a continuity ofpurpose, including following or stalking an employee toor from the place of work; entering the workplace;following an employee during hours of employment;

making telephone calls to an employee; or sendingcorrespondence to an employee by any means, including,but not limited to, the use of the public or private mails,interoffice mail, facsimile, or computer email." (§ 527.8,subd. (b)(1).)

In order to "obtain a permanent injunction undersection 527.8, subdivision (f), a plaintiff must establishby clear and convincing evidence not only that adefendant engaged in unlawful violence or made crediblethreats of violence, but also that great or irreparable harmwould result to an employee if a prohibitory injunctionwere not issued due to the reasonable probabilityunlawful violence will occur in the future." (ScrippsHealth, supra, 72 Cal.App.4th at p. 335.)

2. Analysis

a. The activity alleged in the Petition does not fall withinthe protection of the statute

The threshold issue in ruling on an anti-SLAPPmotion is whether "the challenged cause of action is onearising from protected activity." [*16] (EquilonEnterprises, supra, 29 Cal.4th at p. 67.) A protectedactivity is "any act" that is completed "in furtherance ofthe person's right of petition or free speech under theUnited States or California Constitution in connectionwith a public issue . . . ." (§ 425.16, subd. (b)(1).)

A defendant can meet the burden of making athreshold showing that a cause of action is one arisingfrom protected activity by demonstrating that the actunderlying the plaintiff's cause of action falls within oneof the four categories identified in section 425.16,subdivision (e). (City of Cotati v. Cashman (2002) 29Cal.4th 69, 78.) Among the protected activities identifiedin subdivision (e) of section 425.16 are: "(1) any writtenor oral statement or writing made before a legislative,executive, or judicial proceeding, or any other officialproceeding authorized by law, (2) any written or oralstatement or writing made in connection with an issueunder consideration or review by a legislative, executive,or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement orwriting made in a place open to the public or a publicforum in connection with an issue [*17] of publicinterest, or (4) any other conduct in furtherance of theexercise of the constitutional right of petition or theconstitutional right of free speech in connection with apublic issue or an issue of public interest."


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"The anti-SLAPP statute's definitional focus is notthe form of the plaintiff's cause of action but, rather, thedefendant's activity that gives rise to his or her assertedliability--and whether that activity constitutes protectedspeech or petitioning." (Navellier v. Sletten (2002) 29Cal.4th 82, 92.)

"'[W]here a cause of action alleges both protectedand unprotected activity, the cause of action will besubject to section 425.16 unless the protected conduct is"merely incidental" to the unprotected conduct [citations]. . . .' [Citation.] '[I]t is the principal thrust or gravamen ofthe plaintiff's cause of action that determines whether theanti-SLAP[P] statute applies.' [Citation.] '"[A] plaintiffcannot frustrate the purposes of the SLAPP statutethrough a pleading tactic of combining allegations ofprotected and nonprotected activity under the label of one'cause of action.'" [Citation.] Conversely, a defendant inan ordinary private dispute cannot take advantage [*18]of the anti-SLAPP statute simply because the complaintcontains some references to speech or petitioning activityby the defendant. [Citation.]' [Citation.]" (Raining DataCorp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1369(Raining Data).) "[I]t is the principal thrust or gravamenof the plaintiff's cause of action that determines whetherthe anti-SLAPP statute applies [citation], and when theallegations referring to arguably protected activity areonly incidental to a cause of action based essentially onnonprotected activity, collateral allusions to protectedactivity should not subject the cause of action to theanti-SLAPP statute.' [Citation.]" (Ibid.)

The trial court did not err by denying the anti-SLAPPmotion because the gravamen of the Petition does notarise from protected activity. The Petition for theworkplace restraining order described various conduct inwhich had engaged. Among the conduct identifiedwas the following:

(1) That the situation began whenclaimed that he was owned money

for services he had provided to RanchoGuejito and he was not paid immediately;

(2) That had told Rupp andBarnett that "'[i]t would be a lot better foryou (RANCHO) [*19] to have me as afriend than an enemy'";

(3) That continued to try tocommunicate with Rancho Guejito

employees about the payments throughe-mails, despite having been informed onNovember 1 and reminded on November17, 2011, that he was to not to attempt tocommunicate with Rancho Guejitoemployees and was to communicate onlywith Rancho Guejito's attorney, GregoryKane;

(4) That did not heed thisadmonition, and on November 18, 2011,Kane informed that his e-mailaddress would be placed on the "'blockedsender' list of all RANCHO employees toprevent him from bothering them";

(5) That on December 2, 2011,used subterfuge by claiming to be adelivery person in order to gain access tothe property, and thereafter followed anemployee to the Rancho Guejito officesand attempted to follow her inside."tried to force himself into the office," butthe employees refused to allow him toenter or to accept anything from him.

was again told that he would haveto contact the attorney, Gregory Kane,concerning any business that hadwith Rancho Guejito;

(6) That on January 10, 2012,sent a letter and e-mail message to RanchoGuejito personnel, [*20] despite havingbeen told not to do so. admittedthat he had hired a helicopter to fly overthe property to investigate the cattle sothat he "could report [Rancho Guejito] tothe authorities." attachedphotographs of dead cows;

(7) That on January 13, 2012,exchanged e-mail messages with Kaneregarding repeated attempts tocontact Rancho Guejito personnel.stated that Rancho Guejito "has enoughproblems without pissing me . . . off";

(8) That on or around January 20,2012, began using a new e-mailaddress in order to continue tocommunicate with Rancho Guejito


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personnel, in an apparent attempt tocircumvent his having been placed on the"'blocked sender' list";

(9) That on January 31, 2012,sent an e-mail to Kane stating that Kanewas not to contact anymore;

(10) That on February 9, 2012, Coatesand Peter Bozzo sent a letter viacertified mail insisting that he stopcontacting Rancho Guejito personnel andinstead communicate only with Kane;

(11) That on February 14, 2012,and two other men were seen by

Rancho Guejito employees driving up thedirt road leading to the main gate ofRancho Guejito. The employees drovetoward [*21] the area, but turnedthe truck around and headed toward theexit. Once near the main entrance to theproperty, stopped the truck and oneof the passengers began takingphotographs of the property, including thesecurity cameras on the property;

(12) That on February 17, 2012,was aggressive and confrontational

with ranch security personnel when hearrived at a prearranged appointment toretrieve some of his personal property,which personnel had placed outside of theRancho Guejito gate. tookphotographs of Rancho Guejito securitypersonnel, and, after hooking a trailer upto his truck, asked them, "'Do you havepermits?'" One employee interpreted

question as asking whether theyhad permits for their holstered weapons.

then stated, "'You know this is acounty road all the way up to the doublegates[.]'" asked other questions,but the security personnel continued to tell

that he was to direct his questionsto Rancho Guejito's attorney, as he hadbeen told numerous times;

(13) That on February 20, 2012,arrived with another man to

retrieve the remainder of his personal

property. said to securitypersonnel, "'[T]ell [*22] Octavio, Jackand Lige, that we are not finished withthem.'" and his companion usedcameras to videotape and takephotographs at the main gate, includingtaking photographs of the security camerasand the security personnel.demeanor was "'clearly combative'"; and

(14) That on February 23, 2012, aRancho Guejito employee observed a redhelicopter flying over the Rancho Guejitoproperty. The red helicopter looked similarto the red helicopter that hadadmitted using when he flew over theproperty before and took photographs ofthe dead cattle.

contends that the Petition alleges a cause ofaction arising from protected activity because all of theacts underlying the Petition fall into one of two of thefour categories identified as protected activities undersection 425.16, subdivision (e)--i.e., "written or oralstatement[s] or writing made in a place open to the publicor a public forum in connection with an issue of publicinterest," or "other conduct in furtherance of the exerciseof the constitutional right of petition or the constitutionright of free speech in connection with a public issue oran issue of public interest." suggests that Rancho[*23] Guejito's Petition sought to restrain him from flying"'over or near the property'" in an attempt to prevent himfrom being able to "report[] Rancho Guejito's activities togovernment authorities." further contends that the"public interest" component of subdivisions (e)(3) and(e)(4) of section 425.16 is met because "[t]here is a strongpublic interest in the Rancho Guejito property," which heasserts is evidenced by "the multitude of media articlesabout Rancho Guejito and community involvementconcerning the preservation of Rancho Guejito's land."According to a number of the events about whichRancho Guejito complained in its Petition involve himtaking photographs or video, bringing reporters to takephotographs, or asking about a public county roadadjacent to the property. claims that all of thesethings constitute activities performed in accordance withhis First Amendment rights, in that he was documentingactivities of public interest, such as the preservation ofenvironmentally sensitive habitats.


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Although there are some activities alleged in thePetition that arguably involve conduct that may implicate

First Amendment rights, such as the taking[*24] of video or photographs from public locations,including from public air space, the description of

conduct that Rancho Guejito raises in its Petitionillustrates that the principal thrust or gravamen ofRancho Guejito's Petition seeking a workplace violencerestraining order is nonprotected activity, particularly

harassing behavior toward Rancho Guejitopersonnel about being paid, as well as his threateningcomments and behavior, including an instance in whichhe used subterfuge to gain access to the Rancho Guejitoproperty. repeatedly contacted Rancho Guejitopersonnel despite having been directed numerous times tocommunicate solely with Rancho Guejito's attorney. It isthis conduct that forms the thrust of Rancho Guejito'sPetition to enjoin from further harassment.9

9 does not argue that his conduct inrepeatedly communicating with Rancho Guejitopersonnel despite being asked to communicateonly through its attorney, or his conduct inmaking threatening comments, displayingaggressive behavior to those personnel, and usingsubterfuge to enter the property was "protectedactivity" for purposes of the first prong of theanti-SLAPP analysis, thereby [*25] concedingthat it was not.

We conclude that the potentially protected conductmentioned in the Petition is "'only incidental to [the]cause of action based essentially on nonprotectedactivity.' [Citation.]" (Raining Data, supra, 175Cal.App.4th at p. 1369.) Despite suggestion thatthe "majority of" the acts alleged in support of thePetition "involved taking photographs orvideotaping Rancho Guejito from public property orairspace, taking reporters near Rancho Guejito, or askingabout a public county road that was gated by RanchoGuejito personnel," a review of the allegations about

conduct that are identified in the Petitiondemonstrates that of the 14 different incidents raised,only four even mention such activities (the February 14,February 17, February 20, and February 23, 2012incidents). Further, even with respect to these particularincidents, with the exception of the February 23 incident,it is clear that the conduct about which Rancho Guejito iscomplaining is repeated appearances at theRancho Guejito property and his confrontations with

Rancho Guejito staff. The brief references to the fact thatsomeone, either himself, or someone [*26] hebrought with him, was photographing or video recording,are mentioned only to provide context regarding theinteractions, and do not form the crux of RanchoGuejito's complaints about behavior. There isnothing in the Petition that would suggest that RanchoGuejito was attempting to prevent from talking tothe press, informing governmental agencies of concernsthat he might have regarding the Rancho Guejitoproperty, or engaging in other protected activities.Although the allegations concerning the February 23,2012 incident referred to a possible sighting ofusing a helicopter to fly over the Rancho Guejitoproperty, which arguably constitutes nonexpressiveconduct to facilitate exercise of free speechprotected by the constitution, this conduct clearly did notform the crux of Rancho Guejito's Petition and instead, ismerely incidental to the overall thrust of the Petition.Contrary to portrayal of the dispute between himand Rancho Guejito as one with broader publicimplications, it is, at its core, an "ordinary privatedispute" (Raining Data, supra, 175 Cal.App.4th at p.1369) between these parties. The fact that the Petitioncontains [*27] some references to potentially protectedspeech or petitioning activity by is insufficient toallow to take advantage of the anti-SLAPPstatute.10

10 This determination is bolstered by the factthat, as the trial court noted, the restraining orderissued against does not affect his FirstAmendment rights. We agree with the trial court'sconclusion that the restraining order "will have noimpact on constitutionally-protectedactivities." As the trial court accurately describes," is free to talk to the press; he is free toconvey information to governmental agencies;and he is free to petition the government forredress. But he is not free to trespass onto RanchoGuejito's property or to harass Rancho Guejito'spersonnel."

b. Rancho Guejito demonstrated a probability ofprevailing on the merits

"[I]n order to establish the requisite probability ofprevailing (§ 425.16, subd. (b)(1)), the plaintiff need onlyhave '"stated and substantiated a legally sufficientclaim."' [Citation.]" (Navellier, supra, 29 Cal.4th at p. 88


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.) "'[T]he plaintiff "must demonstrate that the complaintis both legally sufficient and supported by a sufficientprima facie showing [*28] of facts to sustain a favorablejudgment if the evidence submitted by the plaintiff iscredited."' [Citation.]" (Id. at pp. 88-89.)

The showing required for purposes of overcoming ananti-SLAPP motion is only that the claim being made isone of "minimal merit." (Navellier, supra, 29 Cal.4th atp. 93.) Rancho Guejito met that standard by presentingevidence in support of its Petition, in the form ofdeclarations supporting the allegations of the Petition,that conveyed a credible threat of violence toRancho Guejito employees at their workplace, and thatirreparable harm would result to an employee if aprohibitory injunction did not issue because there was aprobability that would engage in unlawfulviolence in the future. (See Scripps Health, supra, 72Cal.App.4th at p. 355.)

In the Petition, Rancho Guejito set forth a number ofallegations demonstrating that conveyed acredible threat of violence to employees at theirworkplace, and supported those allegations withdeclarations from the employees. Again, under thestatute, a "'[c]redible threat of violence'" is "a knowingand willful statement or course of conduct that wouldplace a reasonable person in fear for [*29] his or hersafety, or the safety of his or her immediate family, andthat serves no legitimate purpose." (§ 527.8, subd. (b)(2).)Rancho Guejito presented evidence that after RanchoGuejito refused to pay "invoices," he told one ofRancho Guejito's employees, "'It would be better for you(Rancho Guejito) to have me as a friend than an enemy.'"Rancho Guejito also presented evidence that after makingthis statement, and after being told numerous times not tocontact Rancho Guejito employees directly,repeatedly e-mailed Rancho Guejito staff, asking aboutthe payment that he claimed he was owed. Thedeclarations that Rancho Guejito submitted furtherdemonstrated that continued this harassingconduct when he appeared at a restricted access gate onthe Rancho Guejito property, presenting himself assomeone with a delivery, but not identifying himself. Hegained access to the property using this ruse, andfollowed an employee to the office door. After this event,

wrote in an e-mail to Kane, "It seems to me thatthe management there has enough problems alreadywithout pissing me off."

course of conduct as outlined in RanchoGuejito's Petition and supported [*30] by thedeclarations was sufficient to place a reasonable person infear for his or her safety. made actual threats,including telling employees that it would be better "tohave [him] as a friend than an enemy," and made animplied threat when he said that management had enoughproblems "without pissing [him] off." These statements,particularly when combined with repeatedcontacting of employees and his penchant for appearingon the Rancho Guejito property or just outside of itsboundaries despite knowing that he was not welcome, aresufficient to constitute a credible threat of violence.

cites to the California Judges Benchguide 20:Injunctions Prohibiting Civil Harassment andWorkplace/Postsecondary School Violence (2012),section 20.69, pages 20-41, to posit that his conduct inthis matter did not amount to a "credible threat ofviolence" and instead constituted activities with alegitimate purpose. He quotes the following passage:"The conduct about which the petitioner complains mustserve no legitimate purpose in order to constitute civilharassment. If the petitioner admits to owing money tothe respondent, then it is not civil harassment for therespondent [*31] to call the petitioner on a reasonablyconsistent basis to ask when the petitioner will satisfy thisdebt." fails to acknowledge two importantdistinctions regarding what the Petition alleged happenedhere. First, the conduct about which Rancho Guejitocomplained went beyond mere calling on a "reasonablyconsistent basis" to ask for satisfaction. It includedactually threatening, and repeatedly contacting, variousemployees after having been told to communicate withonly one individual regarding his claim. Second, RanchoGuejito did not admit to owing money, and, infact, disputed the validity of his claim for $326,000.

The escalating nature of conduct, includinghis aggressive and combative interactions with RanchoGuejito security personnel after he had made threateningstatements and continued to contact other employees,demonstrated a reasonable probability that wouldcontinue to engage in this type of conduct, and wouldengage in additional threatening and violent behavior ifnot restrained from doing so.

B. The trial court did not err in issuing the workplaceviolence restraining order

contends that the trial court erred in granting


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Rancho Guejito's [*32] Petition and issuing a restrainingorder against him.

1. Legal standards

As set forth in part III.A.1.b., ante, in order for anemployer to "obtain a permanent injunction under section527.8, subdivision (f), a plaintiff must establish by clearand convincing evidence" both "that a defendant engagedin unlawful violence or made credible threats ofviolence," and "that great or irreparable harm wouldresult to an employee if a prohibitory injunction were notissued due to the reasonable probability unlawfulviolence will occur in the future." (Scripps Health, supra,72 Cal.App.4th at p. 335.)

"On appeal . . . we review an injunction issued undersection 527.8 to determine whether the necessary factualfindings are supported by substantial evidence. [Citation.]Accordingly, we resolve all factual conflicts andquestions of credibility in favor of the prevailing party,and draw all reasonable inferences in support of the trialcourt's findings." (City of San Jose v. Garbett (2010) 190Cal.App.4th 526, 538.) We affirm a judgment if it issupported by substantial evidence, even thoughsubstantial evidence to the contrary exists and wouldhave supported a different result. (Howard v. OwensCorning (1999) 72 Cal.App.4th 621, 631.) [*33] "' Thesufficiency of evidence to establish a given fact, wherethe law requires proof of the fact to be clear andconvincing, is primarily a question for the trial court todetermine, and if there is substantial evidence to supportits conclusion, the determination is not open to review onappeal.' [Citations.]" (Crail v. Blakely (1973) 8 Cal.3d744, 750.)

In addition, the trial court's exercise of its discretionto grant injunctive relief "will not be disturbed on appealabsent a showing of a clear abuse of discretion.[Citation.]" (Shapiro v. San Diego City Council (2002) 96Cal.App.4th 904, 912.)

2. Analysis

a. Rancho Guejito's motion to strike

As an initial matter, we must address RanchoGuejito's motion to strike certain portions ofopening brief on appeal. After filed his openingbrief, Rancho Guejito filed a motion to strike referencesin appellate brief to a security video recording

that captured some of the December 2, 2011 incident inwhich used subterfuge to gain entry to the RanchoGuejito property. Rancho Guejito argues that the trialcourt did not view this particular recording, that thisrecording was not admitted in evidence in the trial [*34]court, and that the recording is therefore not part of theappellate record on review. Rancho Guejito also movedto strike the references in briefing regarding"alleged 'illegal' road grading" because this court denied

request to take judicial notice of certaindocuments purporting to relate to violations and/orwarnings various governmental agencies issued toRancho Guejito

The parties dispute whether the video recording onwhich relies is part of the appellate record. Ourreview of the record and the papers filed by the partieswith respect to Rancho Guejito's motion to strike revealsthe following relevant background: The recording inquestion is apparently one of five videos that existed on asingle "thumb drive," two of which Rancho Guejito'sattorney sought to admit as evidence at the hearing.

attorney apparently had not received the copy ofthe videos that Rancho Guejito had served on him prior tothe hearing, and he objected to the introduction of any ofthe video recordings on the thumb drive. During a break,

attorney was given the video recordings thatRancho Guejito was offering to watch. After the break,

attorney no longer [*35] objected to RanchoGuejito offering, and the court admitting, the two videosat issue. The court reviewed the two videos during theevidentiary hearing. The entire thumb drive was lodgedas "Exhibit C."

At some point after the April 11 hearing, the thumbdrive was lost. Neither the parties nor the court were ableto locate it. In the process of having an identical thumbdrive marked as Exhibit C, it became clear that therewere five separate videos on the thumb drive, thatRancho Guejito had offered only two of the five videos inevidence, that the trial court had reviewed only these twovideos, and that those two videos were the only videos onthe thumb drive that had been admitted in evidence. Therecord thus establishes that there was no ruling regardingthe admissibility of the other three videos because theywere not offered as evidence. The record does notestablish why did not seek to have the video onwhich he relies in his appellate brief introduced asevidence, particularly in view of the fact that hemaintains that it supports his position with respect to the


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evidence underlying the workplace violence restrainingorder.11

11 seems to suggest that RanchoGuejito's [*36] attorney somehow concealed theexistence of the video from him and from thecourt: "[A]nother video . . . , which was on thememory stick but was not identified by RanchoGuejito to the Trial Court or to clearlyshows . . . ." However, there is no allegation thatthere was any discovery violation, nor does

explain why he did not attempt to discoverwhether additional video recordings of the eventin question existed.

argues that because the entire thumb drivewas lodged as Exhibit C, all of the videos on Exhibit Care a part of the record on appeal. Absent certainexceptions not relevant here, "all exhibits admitted inevidence, refused, or lodged are deemed part of therecord." (Cal. Rules of Court, rule 8.122(a)(3).)However, we conclude that the California Rules of Court,rule 8.122 was not intended to encompass itemscollectively placed in a digital "container" but neverindependently offered in evidence, or even mentioned, atthe evidentiary hearing to be considered part of theappellate record. For this reason, we agree with RanchoGuejito that the specific video to which refers isnot part of the record on appeal. We therefore grantRancho Guejito's [*37] motion to strikereferences to this video.12

12 Even if we were to consider the video onappeal, we would conclude that it simply does notassist in the manner he believes it does.The video in question is a silent video that shows

following Soto to the office door, walkingdirectly up to the door, standing on the stoop, andafter a period of time, walking away. In thecontext of all of the evidence presented withrespect to pattern of threatening andharassing behavior, the content of this video doesnot exonerate and establish thatwas in some way prejudiced by the trial court notviewing the video. Rather, the video confirms that

gained access to the property despitehaving been told multiple times not to contactRancho Guejito employees and to communicateonly with Kane. The employees interpreted thisbehavior, itself, as threatening and frightening,

and were worried that might injure them.We are convinced that the trial court would nothave reached a different conclusion if it hadviewed the additional video of the December 2,2011 incident.

With respect to Rancho Guejito's motion to strike thereferences in briefing [*38] regarding "alleged'illegal' road grading," we deny the motion. Thedocuments of which wanted this court to takejudicial notice are government documents relating tonotices of violations and/or warnings purportedly issuedby government agencies to Rancho Guejito related toroad grading on the property, waste discharge violations,and unauthorized discharge of fill material. Our decisionto not take judicial notice of these documents does notmean that there is nothing in the record pertaining to

allegations of improper road grading.testified regarding viewing this grading and his concernthat the grading had been performed without beingproperly permitted.

b. There is substantial evidence to support the trialcourt's determination that made credible threatsof violence

contends that there is insufficient evidencethat he committed "unlawful violence." assertsthat the trial court found that on December 2, 2011, hecommitted an act of "unlawful violence" when he arrivedat the property and gained entrance through the gate byusing subterfuge. makes much of the fact that thetrial court appeared to rely on Soto's declaration inconcluding [*39] that "tried to force his wayinside Rancho Guejito's offices," and complains thatSoto's declaration is contradicted by testimony,as well as by Barnett's testimony.

What fails to acknowledge is that the statuterequires that the respondent have engaged in "unlawfulviolence" or "a credible threat of violence" in order for aworkplace violence restraining order to issue. Byfocusing on only the "unlawful violence" aspect,ignores the significant and substantial evidence that hisconduct amounted to a "credible threat of violence," asthe trial court found. conduct in arriving atRancho Guejito on December 2, 2011, coming to the gateon foot after hiding his car, failing to identify himself,and attempting to see Barnett, all after having been toldmultiple times by that point that he was not to have anycontact with any Rancho Guejito employees, was itself


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threatening and harassing behavior, irrespective ofwhether he ultimately made any physical attempt to forcehis way through the office door.

Again, the statute defines "[c]redible threat ofviolence" as "a knowing and willful statement or courseof conduct that would place a reasonable person [*40] infear for his or her safety, or the safety of his or herimmediate family, and that serves no legitimate purpose."(§ 527.8, subd. (b)(2).) suggests at various pointsin his briefing that he had a "legitimate purpose" forvirtually all of his conduct. For example, he contends thatthe purpose of two of his visits to Rancho Guejito was toretrieve his personal property, and that his flying in ahelicopter over the property was a constitutionallyprotected act, as was his bringing journalists and/orphotographers to the property. also contends thathe was simply attempting to "get payment on hisinvoices," which, he asserts, is a "legitimate purpose." Aswe have already explained, repeated andharassing attempts to get Rancho Guejito personnel topay him the $326,000 that he was demanding (despite theabsence of any contract between the parties, oral orwritten, to support such a claim), cannot be considered tohave been done for a "legitimate purpose."

failed to comply with Rancho Guejito'sreasonable request that he communicate only with Kaneabout the matter, and ignored that request numeroustimes. Further, his "requests" for payment went beyondsimply [*41] asking to be paid. Instead, madevarious threats in his demands for payment. Such conductcannot reasonably be considered "legitimate."presumes that his demand for payment was valid, andconcludes that his demands for payment were thereforelegitimate. However, Rancho Guejito has always disputed

"invoices." In this context, repeatedharassment of Rancho Guejito employees about beingpaid on the disputed invoices cannot be considered tohave been legitimate.

Further, there is ample evidence of vagueand repeated threats to Rancho Guejito employees.Rancho Guejito witnesses Rupp and Barnett stated that atthe October 2011 meeting, said, "'It would go alot better for Rancho Guejito if I was your friend ratherthan your enemy,'" and that when asked what he meantby that, he responded, "'You'll see.'" The trial courtdetermined that these statements "reasonably causedRupp and Barnett to fear for their safety." Given this

evidence, the trial court's conclusion that made acredible threat of violence is wholly reasonable. Further,

later made another indirect and vague threat whenhe told Kane that Rancho Guejito "has enough problems[*42] already without pissing me off." Other RanchoGuejito employees said that asked them to "'[t]ellOctavio, Jack and Lige, that we are not finished withthem.'" These statements, together with repeatedappearances at the Rancho Guejito property, constitutesubstantial evidence that engaged in a course ofconduct that constituted a credible threat of violence. Areasonable person would find this behavior troubling andcause for fear.

There is clearly substantial evidence to support thetrial court's findings that engaged in a pattern ofconduct that amounted to credible threats of violence,justifying the trial court's issuance of the workplaceviolence restraining order.

c. The trial court did not err in considering the threatthat made at a restaurant

suggests that the trial court improperlyconsidered the threat that made to Rupp andBarnett at an off-site restaurant in October 2011. Hecontends that this statement is insufficient to support afinding of a credible threat of violence, and that the trialcourt should not have considered the statement in itsanalysis, because (a) it was not a threat made at theworkplace, (b) it was not [*43] a threat of "violence,"and (c) had a legitimate purpose, in that he was"[s]eeking to get paid for work performed . . . ." Thesearguments are meritless.

First, a threat need not be made at the workplace inorder for it to be considered in determining whether aworkplace violence restraining order should issue. Acourt must conclude that the threat of violence "canreasonably be construed to be carried out or to have beencarried out at the workplace" (§ 527.8, subd. (a), italicsadded). It is therefore not an issue that the threat wasmade at an off-site restaurant. The critical question iswhether there is substantial evidence to support thecourt's conclusion that made a threat that couldreasonably be construed to be carried out at theworkplace. (See City of Los Angeles v. Animal DefenseLeague (2006) 135 Cal.App.4th 606, 625-626 [becauseoffensive internet postings contained protectedemployee's home address but not office address, postingscould not "reasonably be construed as threats to be


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carried out at the workplace"].)

Second, this threat could reasonably be construed asa threat of "violence," particularly given conductduring the relevant time period. [*44] suggeststhat it was not a threat against anyone's safety. However,the victims of the threat, and the court, disagreed. Thestatement, "'You'll see'" when was asked what hemeant when he said, "'It would go a lot better for RanchoGuejito if I was your friend rather than your enemy,'" wasparticularly frightening to Rancho Guejito employees.After making these statements, went on to behavein a harassing manner, repeatedly contacting employees,attempting to enter the property, and engaging inconfrontational behavior. Given his multiple ambiguousthreats and his unusual conduct, employees werejustifiably concerned about how far would takehis harassing behavior. The fact that the originalthreatening statement was vague, like the others, does notmean that the statement could not induce reasonable fearfor one's safety in those to whom it was directed. Ifanything, the fact that the threat left open whatmight do to exact his revenge meant that employeescould reasonably fear the worst.

Finally, suggestion that he had a "legitimatepurpose" in making this threat is unpersuasive. Even ifwe were to assume that made the statement in[*45] an attempt to obtain payment for a legitimate debt,there is simply no legitimate purpose in making this typeof threat to one who refuses to pay the debt.13

13 As should be clear by this point, we do notmean to suggest in any way that Rancho Guejitohas conceded that it owes any of themoney he was demanding.

d. There is substantial evidence to support the trialcourt's determination that great or irrevocable harm islikely to occur in the future

contends that there is insufficient evidence tosupport the trial court's finding that there is a likelihoodof future harm. argues that because there is noevidence that he has committed wrongful acts in the past,there can be no evidence that he is likely to commit suchacts in the future. argument is based on thepremise that he did nothing wrong in any of the actionshe directed at Rancho Guejito employees. However, aswe have concluded, there is abundant evidence to supportthe court's findings that past conduct amounted

to a credible threat of violence.

compares this situation with the situationaddressed in Scripps Health, supra, 72 Cal.App.4th 324.The injunction issued by the trial court [*46] in ScrippsHealth arose from a tension-filled meeting between ahospital administrator and Marin, a patient's son. Whenthe administrator insisted that they needed to discussMarin's mother and stood in front of the door, blockingMarin's exit from the meeting room, Marin pulled thedoor open, causing it to hit the administrator and push herinto the wall. (Id. at p. 328.) After this single violent act,two significant things occurred. First, Marin's mothertransferred her health insurance and thus was unlikely toreturn to the facility where her son's violent act occurred.(Id. at p. 336.) In addition, Marin had agreed to stay awayfrom the hospital, and had fulfilled this promise duringthe two-month time period between when the temporaryrestraining order was vacated and the hearing on apermanent injunction was held. (Ibid.) Based on thesefacts, the appellate court found insufficient evidence thatMarin would repeat any violent conduct againstemployees at Scripps and therefore concluded that aworkplace violence restraining order should not havebeen issued against him. (Ibid.)

by contrast, repeatedly communicated withRancho Guejito employees and appeared on or near the[*47] property on multiple occasions. Further, unlikeMarin, who had engaged in a single incident of violencebut had no history of threatening conduct,engaged in a series of harassing and threatening conductover a period of months. "'[C]ontext is critical in a truethreats case and history can give meaning to the medium.'[Citations.]" (Huntingdon Life Sciences, Inc. v. StopHuntingdon Animal Cruelty USA, Inc. (2005) 129Cal.App.4th 1228, 1250.) pattern of conduct andhis repeated vague threats constitute substantial evidenceto support the trial court's determination that irreparableharm was reasonably likely to occur if the injunctionwere not issued.

IV.

DISPOSITION

The trial court's order denying anti-SLAPPmotion and its order issuing a three-year workplaceviolence restraining order are affirmed. Rancho Guejito isentitled to costs on appeal.


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AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.


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ATTACHMENT 3

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Proposed Regulatory Changes For Disciplinary Investigations

Involving Certified Rangeland Managers

Includes addition of 14 Cal. Code Regs., § 1650.1 and related amendment to 14 Cal. Code Regs., § 1650(c)

RATIONALE

• Increased accountability to the public; clear and transparent process.

• Consistent with process for Registered Professional Foresters contained in formal regulations.

• Consistent with Department of Forestry and Fire Protection statutes and Administrative Procedure Act.

• Eliminates Underground Regulations.

• Maintains an appropriate role for Cal-Pac Section, Society for Range Management in disciplinary recommendations to State Board of Forestry and Fire Protection.

• Role of Board of Forestry and Fire Protection o Initial complaints filed with Board; transfers to Cal-Pac as appropriate o After Cal-Pac review, Board makes final determination and notices decision as

“Final Action.” Potential actions pursuant to Pub. Res. Code §§ 776, 777: Exoneration Letter documenting complaint Private reprimand Stipulated agreement Charges brought to revoke or suspend license in form of an Accusation.

• Clarifies potential for input and initiation of appeal for both the Certified Rangeland

Manager and the complainant.

• Upon exhaustion of these administrative procedures and notice of Final Action by Board, the complainant or the subject of the complaint may appeal the Board’s decision in the superior court.

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AMENDMENT TO EXISTING REGULATION: 14 Cal. Code Regs., § 1650. Specialties. (a) As an alternative to being registered as a RPF, any person qualified pursuant to this Article is eligible for certification in a specialty. Both RPFs and non-RPFs are eligible for certification in a specialty. Only a person registered as a Certified Specialist may use the title of that specialty. A certificate in each specialty created will be issued by the Board pursuant to the standards contained in Section 772 of the Code. Specialties will be created by regulation as the need arises. (b) To protect the public interest, the following certified specialties shall be implemented and overseen by the Executive Officer, with the assistance of the Examining Committee:(1) Certified Rangeland Management Specialty (c) For independent certification programs submitted by a professional society or public agency pursuant to Section 772 of the Code, the following process shall apply:

(1) When a professional society or public agency establishes an internal certification panel for any or all of the following purposes: reviewing an applicant's qualifications, administering an examination to evaluate an applicant's professional understanding, awarding certifications, and reviewing allegations of misconduct; the panel members shall have first been certified by the Board as meeting the professional qualifications and standards for that Certified Specialty before undertaking their responsibilities pursuant to this Section. The certification of the panel members may be done by a subcommittee of the PFEC appointed by the Board and composed of resource professionals in good standing representing a broad cross section of employment and expertise in that specialty. All subsequent panel members shall also be certified in this manner.

(2) Any disciplinary action against any Certified Specialist shall be conducted pursuant to Title 14 of the California Code of Regulations, Section 1650.1.

(3) The PFEC shall be notified of any proposed actions to be taken by a professional society or public agency which may affect the specialty certification program of the society or public agency, including but not limited to modification of the requirements for certification or professional accountability. Any modifications to a specialty certification program must be approved by the PFEC prior to implementation or the program may be rejected by the Board. The modifications shall not significantly alter the qualifications and accountability within the original certification.

(4) Prior to March 1 of each calendar year, those Professional Societies and public agencies with independent certification programs shall submit to the PFEC a report which describes the previous calendar year accomplishments of the certification program, including but not limited to the number of applicants for certification, the approvals, denials, and copies of examinations, to insure the program fully protects the public interest. Each annual report shall describe the scope of the internal certification panel’s authority in relation to the duties set forth in subsection (c)(1) and provide an assessment of the performance of those duties over the previous calendar year. Failure to submit the

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report shall result in a review by the PFEC at a duly noticed and public hearing by December 31 of the calendar year, which may result in the rejection of the Certification program by the Board.

(d) All Certified Specialists are subject to annual registration and fees for renewal of Specialty Certificates pursuant to 14 CCR, Sections 1605 and 1607.

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NEW REGULATORY SECTION: 14 Cal. Code Regs., section 1650.1 Disciplinary Guidelines for Certified Specialists. (a) A Certified Specialist licensed pursuant to Public Resources Code, section 772, including a Certified Rangeland Manager, shall be subject to disciplinary actions by the Board as defined in this chapter for violation of professional and/or ethical standards established by the professional society or a public agency, or for violation of those standards promulgated by the Board pursuant to Section 778 of the Code. (b) Any person may file with the Board a written verified complaint involving the actions of any person licensed under an independent certification program established by a professional society or public agency, including a Certified Rangeland Manager pursuant to Title 14, California Code of Regulations, Section 1651, subdivision (a). Upon receipt of such complaint, the Board shall cause investigation to be made of the actions of the person licensed as a Certified Specialist. Such investigation shall not be limited to a review of submission of the materials submitted as part of the complaint. An internal certification panel formed pursuant to Title 14, California Code of Regulations, Section 1650, subdivision (c)(1) may, upon its own motion, file such complaint with the Board. The Board may, upon its own motion, cause investigation to be made of the actions of any person licensed as a Certified Specialist. (c) The complaint must be accompanied by an affidavit setting forth the allegation or allegations upon which the complaint is based. A complaint must include:

(1) The identity of the person who is the subject of the complaint, including his or her license number if known; (2) A description of the transaction or circumstances involved; (3) The date and place where the events occurred; (4) The identity and contact information of any other person or persons with knowledge of the events described; (5) A description of the loss, damage or other adverse consequences of the licensee’s conduct; (6) Copies of pertinent portions of any plans, reports, correspondence, business records or other documents that support the complaint.

(d) The Board shall verify within 30 days of receipt of a complaint that the complaint is legally subject to possible disciplinary action pursuant to Public Resources Code section 778. The Board may request additional information from the complainant. Upon verification, the Board shall within 30 days cause all of the following to occur:

(1) Transmit copies of the complaint, affidavit and supporting documentation to the internal certification panel and immediately direct that the members of the panel, PFEC,

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and Board conduct an internal assessment of potential bias and disclose in writing any potential conflicts of interest to the Board within 30 days; failure to conduct this assessment for bias shall result in the recusal of the panel. Upon receipt of the panel’s written assessment for bias, the Board shall recuse any member of the panel, PFEC, or Board that it determines to hold a potential conflict of interest or bias that a reasonable person would consider to substantially interfere with the ability of the member’s impartiality in making a recommendation or determination regarding the complaint; (2) Notify the certified specialist who is the subject of the complaint that a complaint was received and that the certified specialist will be permitted to submit a written response to the internal certification panel within 30 days of receipt of the notification; (3) Provide written acknowledgement of receipt of the complaint to the complainant.

(e) The identity of the complainant shall remain confidential throughout the investigation, except as may be required under law. (f) The internal certification panel shall gather additional information as necessary in the course of the investigation. Either party to the complaint may submit additional information to the panel prior to action being recommended. The internal certification panel shall review all submitted information by the complainant and the certified specialist who is the subject of the complaint. The internal certification panel shall be responsible for gathering evidence and shall complete its investigation within a reasonable time. The purpose of the investigation shall be to gather facts for consideration by the internal certification panel to recommend appropriate action. During the investigation process, any member of the panel, the PFEC, or the Board that receives an ex parte communication from either the complainant or the subject of the complaint shall disclose the date, time, participants, and general nature of the communication (including any documents) to the other party within 10 days after the communication occurs. Failure to comply with this disclosure requirement shall result in the recusal of the member of the panel, PFEC, and Board that received the communication from further participation in the complaint process. Based on these ex parte disclosures, the Board shall recuse any member of the panel, PFEC, or Board that it determines to hold a potential conflict of interest or bias that a reasonable person would consider to substantially interfere with the ability of the member’s impartiality in making a recommendation or determination regarding the complaint. If all members of the internal certification panel have been recused, then the investigation shall be conducted by the Executive Officer or his designee; provided, however, that the Executive Officer or designee adheres to the process for bias assessment, recusal, and regulation of ex parte communications described in this subsection and subsection (d)(1). (g) If the professional society charged with administering the certification program has established or adopted any standards of professional and/or ethical conduct or behavior, , such standards shall be considered in any investigation of a verified complaint and recommendation or determination thereon. In addition, statutory requirements set forth in Public Resources Code

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section 769 for good moral character, honesty, and integrity shall also be considered in any investigation of a verified compliant and recommendation or determination thereon. (h) Pursuant to Public Resources Code, sections 776 and 777, appropriate actions for recommendation to the Board by the internal certification panel may include:

(1) Exoneration, i.e., a determination that the evidence in the record does not warrant informal or formal disciplinary or enforcement action at the time and therefore formal disciplinary or enforcement action is not imminent; (2) Confidential letter to certified specialist stating concerns of Board;

(3) Private reprimand;

(4) Proposed stipulated agreement, imposing license suspension or revocation or probationary conditions for retaining license; (5) Licensing action in the form of an Accusation pursuant to Public Resources Code, section 776.

(i) The internal certification panel shall notify in writing the Board of the action recommended by the panel in response to the complaint, along with a statement of reasons and justifications for its recommendation, which shall include a discussion of facts in support of the recommendation. The internal certification panel shall provide the Board with all documents and information that the panel relied on or used to make the recommendation. The Board shall have discretion to gather further information, and to accept, modify, or reject the recommended action, pursuant to Public Resources Code, section 775, and the disciplinary guidelines contained in Title 14 of the California Code of Regulations, section 1612.1. If the Board determines that the appropriate action is exoneration and if the complainant is not the internal certification panel or the Board, the Board shall notify the complainant of its determination, along with a statement of reasons and justifications for its determination, which shall include a discussion of facts in support of the determination, as well as disclosure of the panel’s written recommendation. The Board’s determination shall be supported by substantial evidence. (j) Upon conclusion of a hearing on a licensing action in the form of an Accusation and receipt of a recommendation for Board action by an administrative law judge, the Board shall render the final decision relative to suspension or revocation of a license in accord with Government Code, section 11517. Pursuant to Government Code, section 11522, a licensee may petition the Board for reinstatement or reduction of penalty after a period of not less than one year has elapsed from the effective date of the decision or from the date of the denial of a similar petition. (k) The Board shall notify the subject of the complaint and the complainant of its determination, which shall constitute Final Action. Upon the Board’s notice of Final Action, the complainant

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and subject of the complaint may pursue any available remedy under the law including appealing the decision to the superior court.

(l) Notification of disciplinary action shall proceed in accord with Title 14 of the CaliforniaCode of Regulations, section 1612.2.

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re: petition for administrative rulemaking to amend the...

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