Cross-Appellant Opening Brief in TriCity v. Sterling

102
No. D059810 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION ONE _____________ Tri-City Healthcare District, Petitioner/Appellant/Cross-Respondent v. Kathleen Sterling, Defendant/Respondent/Cross-Appellant Appeal from the Superior Court for San Diego County Superior Court No. 37-2011-00052101-CU-PT-NC (Consolidated with: 52102; 52103; 52104; 52112; 52114) Hon. Richard E. Mills, Presiding _____________ RESPONDENT/CROSS-APPELLANT’S BRIEF ___________________________________________________________ Charles M. Kagay – SBN 73377 Spiegel Liao & Kagay, LLP 388 Market Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 956-5959 Scott A. McMillan, SBN 212506 The McMillan Law Firm, APC 4670 Nebo Drive, Suite 200 La Mesa, California 91941-5230 (619) 464-1500 x 14 Attorneys for Defendant/Respondent/Cross-Appellant Kathleen Sterling

description

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

Transcript of Cross-Appellant Opening Brief in TriCity v. Sterling

Page 1: Cross-Appellant Opening Brief in TriCity v. Sterling

No. D059810

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION ONE_____________

Tri-City Healthcare District,

Petitioner/Appellant/Cross-Respondent

v.

Kathleen Sterling,

Defendant/Respondent/Cross-Appellant

Appeal from the Superior Court for San Diego CountySuperior Court No. 37-2011-00052101-CU-PT-NC

(Consolidated with: 52102; 52103; 52104; 52112; 52114)Hon. Richard E. Mills, Presiding

_____________

RESPONDENT/CROSS-APPELLANT’S BRIEF

___________________________________________________________

Charles M. Kagay – SBN 73377Spiegel Liao & Kagay, LLP388 Market Street, Suite 900San Francisco, CA 94111Telephone: (415) 956-5959

Scott A. McMillan, SBN 212506The McMillan Law Firm, APC4670 Nebo Drive, Suite 200La Mesa, California 91941-5230(619) 464-1500 x 14

Attorneys for Defendant/Respondent/Cross-Appellant Kathleen Sterling

Page 2: Cross-Appellant Opening Brief in TriCity v. Sterling

Certificate of Interested Entities or Persons(Cal. Rules of Court, rule 8.208)

There are no interested entities or persons to list in this certificate. (Cal. Rules of Court, rule 8.208(e)(3).)

DATED: April 25, 2012Spiegel Liao & Kagay, LLP

By______________________Charles M. KagayAttorneys for Defendant/Appellant/Cross-Respondent Kathleen Sterling

2

Page 3: Cross-Appellant Opening Brief in TriCity v. Sterling

Table of Contents

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Nature of Action, Relief Sought, and JudgmentAppealed From. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RESPONDENT’S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

II. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . 16

B. TCHD Failed to Request a Statement of Decision.. . . 17

C. TCHD Improperly Bases Its Challenges on the TrialCourt’s Statements from the Bench. . . . . . . . . . . . . . . 18

D. Note on Citations to the Record. . . . . . . . . . . . . . . . . . 22

E. The Trial Court’s Exclusion of Hearsay EvidenceCannot Be a Basis for Reversal. . . . . . . . . . . . . . . . . . 23

1. The Exclusions TCHD Complains Of AreQuite Limited. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. TCHD Waived Its Argument Against theHearsay Rulings by Failing to Make It to theTrial Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

i

Page 4: Cross-Appellant Opening Brief in TriCity v. Sterling

3. TCHD Cannot Show Prejudice from theHearsay Rulings. . . . . . . . . . . . . . . . . . . . . . . . . 28

F. The Trial Court’s Definition of Battery Cannot Be aBasis for Reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

G. The Trial Court’s Observation that Mr. Crooks DidNot Fear Ms. Sterling Cannot Be a Basis forReversal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

1. TCHD’s Lengthy Argument About a Showingof “Fear” Is Irrelevant to the Outcome of thisAppeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

2. TCHD’s Argument that Irreparable InjuryNeed Not Be Shown Runs Counter toEstablished Law. . . . . . . . . . . . . . . . . . . . . . . . . 45

a. Private Parties Must Show IrreparableInjury to Obtain a StatutoryInjunction46. . . . . . . . . . . . . . . . . . . . . . . . . .

b. The Gdowski Decision Does NotSupport TCHD’s Position. . . . . . . . . . . . 50

c. The Legislative History Does NotSupport TCHD’s Position. . . . . . . . . . . . 54

H. TCHD’s Arguments for Reversal of the TrialCourt’s Decisions on the Other Petitions Have EvenLess Merit than Its Arguments on the CrooksPetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

CROSS-APPELLANT’S OPENING BRIEF. . . . . . . . . . . . . . . . . . 57

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

ii

Page 5: Cross-Appellant Opening Brief in TriCity v. Sterling

II. SUPPLEMENTAL STATEMENT OF THE CASE –CROSS-APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

A. Appealability of Judgment. . . . . . . . . . . . . . . . . . . . . . 58

B. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . 58

C. Additional Statement of Facts Pertinent to Cross-Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

A. Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . 62

B. The Four Requirements of Section 1021.5.. . . . . . . . . 62

C. The Trial Court’s Narrow Analysis Did Not ProperlyIdentify the Rights under Attack in these Actions. . . . 63

D. Ms. Sterling’s Victories Enforced an ImportantRight Affecting the Public Interest.. . . . . . . . . . . . . . . 69

E. Ms. Sterling’s Victories Conferred a SignificantBenefit on the General Public.. . . . . . . . . . . . . . . . . . . 75

F. The Necessity and Financial Burden of PrivateEnforcement Made a Fee Award Appropriate. . . . . . . 79

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

CERTIFICATE OF WORD COUNT .. . . . . . . . . . . . . . . . . . . . . . . 86

CERTIFICATE OF SERVICE

RULE 8.204(d) Attachment (Trial Exhibit 3) . . . . . . . . . . . . . . Tab A

iii

Page 6: Cross-Appellant Opening Brief in TriCity v. Sterling

Table of Authorities

Cases

Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672. . . . . 77

Bond v. Floyd (1966) 385 U.S. 116.. . . . . . . . . . . . . . . . . . . . . . . . . 71

California Assn. of Dispensing Opticians v. Pearle Vision Center,Inc. (1983) 143 Cal.App.3d 419. . . . . . . . . . . . . . . . . . . . 47, 48

California Common Cause v. Duffy (1987) 200 Cal.App.3d 730. . 73

Cassim v. Allstate Ins. Co. (2004) 33 Ca1.4th 780. . . . . . . . . . . . . . . 5

City of Los Angeles v. Animal Defense League (2006) 135Cal.App.4th 606. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287.. . . . . . . 81

City of San Jose v. Garbett (2010) 190 Cal.App.4th 526. . . . . . . . . 46

Cohen v. Board of Supervisors (1985) 40 Cal.3d 277. . . . . . . . . . . 49

County of San Luis Obispo v. Abalone Alliance (1986) 178Cal.App.3d 848. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 81

DVD Copy Control Assn. Inc. v. Bunner (2004) 116 Cal.App.4th241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-49

DVD Copy Control Assn., 116 Cal.App.4th 241. . . . . . . . . . . . . . . 48

Edgar v. W.C.A.B. (1998) 65 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . 54

Family Planning Specialists Medical Group, Inc. v. Powers(1995) 39 Cal. App. 4th 1561. . . . . . . . . . . . . . . . . . . . . . . . . 73

iv

Page 7: Cross-Appellant Opening Brief in TriCity v. Sterling

Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Gdowski v. Gdowski (2009) 175 Cal.App.4th 128. . 21, 46, 48, 50, 51

Horsford v. Board Of Trustees Of California State University(2005) 132 Cal.App.4th 359. . . . . . . . . . . . . . . . . . . . . . . . . . 56

Hull v. Rossi (1993) 13 Cal.App.4th 1763. . . . . . . . . . . . . . . . . 73, 80

In re Conservatorship of Whitley (2010) 50 Cal.4th 1206. . . 58, 82-84

In re K.A. (2011) 201 Cal.App.4th 905.. . . . . . . . . . . . . . . . . . . . . . . 2

In re Marriage of Davenport (2011) 194 Cal.App.4th 1507. . . . . . . 5

In re Marriage of Ditto (1988) 206 Cal.App.3d 643. . . . . . . . . 19, 20

In re Marriage of Green (1989) 213 Cal.App.3d 14. . . . . . . . . . . . 19

In re Marriage of Van Hook (1983) 147 Cal.App.3d 970. . 46, 48, 49

Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th437. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 37

Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Leach v. City of San Marcos (1989) 213 Cal.App.3d 648. . . . . . 47-49

Lindgren v. Baker Engineering Corp. (1988) 197 Cal.App.3d1351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Lorenzana v. Superior Court (1973) 9 Cal.3d 626. . . . . . . . . . . . . . 27

v

Page 8: Cross-Appellant Opening Brief in TriCity v. Sterling

MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4thSupp. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Metropolitan Culinary Services, Inc. v. County of Los Angeles(1998) 61 Cal.App.4th 935. . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Monterey/Santa Cruz County Bldg. and Const. Trades Council v.Cypress Marina Heights LP (2011) 191 Cal.App.4th150077. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Pacific Hills Homeowners Ass’n v. Prun (2008) 160 Cal.App.4th1557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Paul v. Wadler (1962) 209 Cal.App.2d 615. . . . . . . . . . . . . . . . . 46-49

Pellegrino v. Robert Half Intern., Inc. (2010) 182 Cal.App.4th278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Fauber (1992) 2 Cal.4th 792.. . . . . . . . . . . . . . . . . . . . . . 27

People v. Frye (1985) 166 Cal.App.3d 941. . . . . . . . . . . . . . . . . . . 27

People v. Lara (1996) 44 Cal.App.4th 102.. . . . . . . . . . . . . . . . . . . 39

People v. Mansfield (1988) 200 Cal.App.3d 82. . . . . . . . . . . . . 39, 40

Powell v. McCormack (1969) 395 U.S. 486. . . . . . . . . . . . . . . . . . . 71

Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311. . . . . . . . . . . . . . . 73

Rich v. City of Benicia (1979) 98 Cal.App.3d 428. . . . . . . . . . . . . . 76

Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382. . . . . 72

Roybal v. Governing Bd. of Salinas City Elementary School Dist.(2008) 159 Cal.App.4th 1143. . . . . . . . . . . . . . . . . . . . . . . . . 77

Russell v. Douvan (2003) 112 Cal.App.4th 399. . . . . . . . . . . . . . . . 46

vi

Page 9: Cross-Appellant Opening Brief in TriCity v. Sterling

Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728. . . . . . . 5

Scripps Health v. Marin (1999) 72 Cal.App.4th 324. . . 45, 46, 50, 51,54, 55

Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th1018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229. . . 19, 20,28

Sierra Club v. San Joaquin Local Agency Formation Com. (1999)21 Cal.4th 489. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Smith v. City of Napa (2004) 120 Cal.App.4th 194. . . . . . . . . . 19, 21

Vacca v. Barletta (D. Mass. 1990) 753 F.Supp. 400. . . . . . . . . . . . 72

Velez v. Levy (2d Cir. 2005) 401 F.3d 75. . . . . . . . . . . . . . . . . . . . . 72

Wal-Mart Real Estate Business Trust v. City Council of City ofSan Marcos (2005) 132 Cal.App.4th 614.. . . . . . . . . . . . 73, 80

Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443. . . . . . . . 20

Wilson v. San Luis Obispo County Democratic Cent. Com. (2011)192 Cal.App.4th 918. . . . . . . . . . . . . . . . . . . . . . . 74, 76, 77, 84

Woodland Hills Residents Assn., Inc. v. City Council (1979) 23Cal.3d 917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 83

Statutes

Business and Professions Code § 8658. . . . . . . . . . . . . . . . . . . . . . 53

Business and Professions Code § 25602.2. . . . . . . . . . . . . . . . . . . . 53

vii

Page 10: Cross-Appellant Opening Brief in TriCity v. Sterling

Code of Civil Procedure § 525. . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Code of Civil Procedure § 526. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Code of Civil Procedure § 527. . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Code of Civil Procedure § 527.8. . . 1, 26, 27, 43, 45, 47, 50, 51, 53-55, 67

Code of Civil Procedure § 631.8. . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Code of Civil Procedure § 904.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Code of Civil Procedure § 1021.5.. . . . . . . . . . . . . . . . . . 2, 57, 62, 80

Code of Civil Procedure § 1281.8.. . . . . . . . . . . . . . . . . . . . . . . . . . 52

Evidence Code § 354.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Food and Agriculture Code § 19443.. . . . . . . . . . . . . . . . . . . . . . . . 53

Food and Agriculture Code § 77863.. . . . . . . . . . . . . . . . . . . . . . . . 53

Food and Agriculture Code § 77863.. . . . . . . . . . . . . . . . . . . . . . . . 52

Health and Safety Code § 1595.5.. . . . . . . . . . . . . . . . . . . . . . . . . . 53

Health and Safety Code § 1641.1.. . . . . . . . . . . . . . . . . . . . . . . . . . 53

Health and Safety Code § 11838.3. . . . . . . . . . . . . . . . . . . . . . . . . . 53

Welfare and Institutions Code § 15657.03. . . . . . . . . . . . . . . . . 50, 51

viii

Page 11: Cross-Appellant Opening Brief in TriCity v. Sterling

Miscellaneous

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

ix

Page 12: Cross-Appellant Opening Brief in TriCity v. Sterling

I. INTRODUCTION

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

of certain of its employees and Boardmembers, brought eight meritless

petitions for injunctions against workplace violence against Respondent

and Cross-Appellant Kathleen Sterling. The reason for this legal

bombardment is that Ms. Sterling is a dissident member of its Board of

Directors whom its management and Board majority are trying, in every

way they know how, to silence. That is why they have pursued an

appeal that, on analysis, cannot identify even colorable error in the court

below. And that is why the trial court’s order denying Ms. Sterling

private attorney general attorneys’ fees, the subject of the cross-appeal,

was an error of law.

II. STATEMENT OF THE CASE

A. Nature of Action, Relief Sought, and JudgmentAppealed From

In the primary appeal, appellant TCHD seeks to overturn the trial

court’s denial of six of the eight permanent restraining orders it sought

against respondent Kathleen Sterling under Code of Civil Procedure

section 527.8 (the other two having been voluntarily dismissed at trial).

1

Page 13: Cross-Appellant Opening Brief in TriCity v. Sterling

After the denial of TCHD’s petitions, Ms. Sterling moved for an

award of attorneys’ fees pursuant to Code of Civil Procedure section

1021.5, which the court denied. In the cross-appeal, cross-appellant

Sterling seeks to overturn the denial of her attorneys’ fee motion.

B. Statement of Facts

1. TCHD’s One-Sided Factual Recitation

TCHD’s Statement of the Facts is essentially meaningless on this

review of the judgment against it. It briefly acknowledges in a footnote

that appellate review of the trial court’s decision must be performed on

the substantial evidence standard. Under this standard, the “usual rule

of conflicting evidence” is that the appellate court will “giv[e] full effect

to the respondent’s evidence, however slight, and disregard[] the

appellant’s evidence, however strong.” (In re K.A. (2011) 201

Cal.App.4th 905, 909.) TCHD nevertheless represents that it is setting

forth “the evidence for both sides.” (AOB at 4 n. 1.) 1

In reality, TCHD seems to have the “usual rule” backwards; its

factual recitation is overwhelmingly slanted to state all evidence in the

light most favorable to its position, while giving short shrift to any

unfavorable evidence. It is an interesting exercise to skim the citations

Appellant’s Opening Brief is cited as AOB.1

2

Page 14: Cross-Appellant Opening Brief in TriCity v. Sterling

in the Opening Brief’s Statement of Facts at pages 4 to 10, bearing in

mind that TCHD’s evidence appears in volumes 1 and 2 of the reporter’s

transcript, and Ms. Sterling’s in volumes 3 and 4. One almost needs a

microscope to discern any evidence that Ms. Sterling presented. (See,

AOB at 6 (last paragraph), 9 (last paragraph).) Apparently, “evidence

for both sides” mostly means “evidence for appellant’s side.”

For example, TCHD provides a feverish description of alleged

misconduct by Ms. Sterling in May 2010 through January 2011. (AOB

at 4-7.) However, the trial court “confidently” found that nothing

occurred prior to February 24, 2011 that could potentially support a

restraining order. (5 RT 3:25-4:1.) TCHD does not contend that

substantial evidence fails to support that conclusion.

Similarly, TCHD headlines its discussion of the key events

addressed at trial as: “Sterling barges into the Board meeting room and

attacks Crooks and other security guards.” (AOB at 7.) This ignores

Mr. Crooks’ own testimony about the incident:

Q. Was she trying to attack you?

A. No, I didn’t – I would not interpret it as that.

(1 RT 44:5-6.) Having reviewed all the evidence, the trial court not

surprisingly concluded: “The Court does not believe there was an attack

3

Page 15: Cross-Appellant Opening Brief in TriCity v. Sterling

on Petitioner Crooks.” (5 RT 7:9-10.) Again, TCHD does not contend

that substantial evidence fails to support the trial court’s conclusion.

TCHD also characterizes a second interaction that same day as,

“[Ms. Sterling] attacks Crooks again in an effort to get back into the

meeting room.” (AOB at 9-10.) Again, the trial court found there was

no attack. (5 RT 12:14-13:19.) And again, TCHD does not contend that

substantial evidence fails to support this conclusion.

In denying six petitions for restraining orders, the trial court

detailed the evidence and the credibility of the witnesses at trial. (See,

5 RT 1:1-14:27.) The court found that much of TCHD’s evidence

involved minor interactions, which different witnesses described

differently. TCHD ignores the court’s credibility determinations, and

argues facts based on witness testimony that was contradicted, even by

its own witnesses.

Overall, the trial court concluded: “Most of the things complained

about by the Petitioners were trivial and inconsequential.” (5 RT 5:5-7.)

Although TCHD does not attempt to disagree with this conclusion, one

would never discern the basis for it from the Opening Brief’s tabloid-

like exposition of the facts.

4

Page 16: Cross-Appellant Opening Brief in TriCity v. Sterling

An appellant is required to accurately and fairly state the material

facts and law. (In re Marriage of Davenport (2011) 194 Cal.App.4th

1507, 1531.) “Where a party presents only facts and inferences

favorable to his or her position, the contention that the findings are not

supported by substantial evidence may be deemed waived.” (Schmidlin

v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 (quotation marks

omitted).)

TCHD cites Cassim v. Allstate Ins. Co. (2004) 33 Ca1.4th 780,

801-803, to justify its one-sided evidentiary recitation. (AOB at 4 n. 1.)

That case holds that, in evaluating a contention that an attorney’s closing

argument was prejudicial misconduct, an appellate court will

“[e]xamin[e] the entire case, including the evidence adduced, the

instructions delivered to the jury, and the entirety of [counsel’s]

argument . . . .” (Id. at 802.) It does not hold that an appellate court will

review a decision, for any purpose, by looking only at the evidence the

appellant considers favorable.

2. Full Factual Recitation

Although on this appeal of judgments in Ms. Sterling’s favor, the

court could ignore evidence supporting TCHD’s position so long as

5

Page 17: Cross-Appellant Opening Brief in TriCity v. Sterling

substantial evidence support Ms. Sterling’s position, the following will

lay out key evidence presented by both sides.

TCHD appropriately divides its factual narrative into two parts –

events before February 24, 2011, and events on that date. With respect

to the earlier events, the trial court ultimately concluded:

Each Petitioner has issues with Sterling that predate the2-24-11 Board meeting. Before that meeting, none of thePetitioners . . . could have obtained a restraining order. . . . I am confident that that’s true.

(5 RT 3:25-4:1)

One need look no further than TCHD’s own description of these

events (AOB at 5-6) to appreciate why the trial court had to come to that

conclusion. Even if everything TCHD says about Ms. Sterling were

true, its rendition of the facts shows only that the TCHD Board

repeatedly censured her for things she said that they found offensive, not

for committing or threatening violence. (Ibid.) The only physical action

they claimed she took against another person is a “physical tug-of-war

with Tri-City CEO Larry Anderson,” about which the trial court

observed: “[T]his was such an inconsequential event that it requires no

further discussion, is not a basis for any action by Anderson.”

6

Page 18: Cross-Appellant Opening Brief in TriCity v. Sterling

(5 RT 7:5-8.) As TCHD notes, Ms. Sterling denied under oath the

accusations of the TCHD witnesses. (AOB at 6-7.)

Nothing TCHD alleges for the pre-2/14/11 period even

approaches violence or a credible threat of violence. The trial court

concluded:

Ms. Sterling made no verbal threats to any petitioner or toanyone else. Some of the language she used was perhapsundesirable or offensive, but there were no verbal threatseither direct or indirect.

(5 RT 4:26-5:1.)

Thus, although TCHD argues that “[o]ver the previous years,

Sterling had belittled, insulted, and mistreated Tri-City employees and

her fellow Board members” (AOB at 2), it does not try to suggest that

any of those actions merited an injunction under section 527.8. Rather,

it says, “[a]t a February 24, 2011 Board meeting, Sterling twice had

physical confrontations with Tri-City security personnel,” and

“[e]vidence about the two confrontations was central to the restraining

order petitions.” (Ibid.)

In fact, though, the February 24 incidents were merely a pretext

for these petitions. The evidence presented at trial showed that the

Board had already drafted a resolution well in advance of the February

7

Page 19: Cross-Appellant Opening Brief in TriCity v. Sterling

24 meeting to seek restraining orders against her. (2 RT 149:1-9,

152:10-14, Trial Exhibit ‘3', attached as Tab ‘A’.)

Now that pretext is the entirety of TCHD’s case for anti-violence

injunctions against Ms. Sterling. Its claim for injunctions stands or falls

on convincing this Court that the trial court misinterpreted the import of

the two February 24, 2011 “incidents.” (AOB at 7-10.)

However, the trial court made pointed findings of what happened

at those incidents, strongly supported by substantial evidence. TCHD

presented evidence about the incidents that was inconsistent,

contradictory, and often fanciful.

With respect to the first incident, the court found:

Five minutes before the meeting Sterling entered the room.Security guards, including Crooks, blocked her advanceinto the room. She tried to walk around them, but theymoved and continued to block her advance. At most,Sterling bumped into Crooks. It was not hard enough tomove him. There was absolutely no injury.

(5 RT 11:2-8.)

Her intention was clearly to get around the guards againbefore the meeting, not to come into contact with them.

(5 RT 12:7-13.)

Regarding the first incident, Ms. Sterling testified quite directly

that she did not try to hit anybody and she did not bump anybody; rather,

8

Page 20: Cross-Appellant Opening Brief in TriCity v. Sterling

TCHD security guard Craig Lawyer shoved her. (3 RT 510:22-511:6.)

Throughout the incident, Ms. Sterling testified, she did not touch

anyone. (3 RT 513:16-24.) Richard Rivero, a private investigator

employed by Ms. Sterling who witnessed the incident, testified that two

TCHD security officers blocked Ms. Sterling’s path, then bumped,

grabbed, and shoved her to guide her out of the meeting room, while she

protested that she had a right to be in the room because the meeting had

not started. (3 RT 344:5-348:5.)

TCHD’s security officer Richard Crooks told the story differently.

He said that he and other officers formed a line to block Ms. Sterling

from entering the meeting room, and that she pushed them in an attempt

to work her way around the line. (1 RT 20:18-21:14.) He conceded

that, in bumping him, Ms. Sterling was not trying to attack him but just

trying to get to the other side of him. (1 RT 44:1-8.) TCHD attorney

and petitioner Matthew Soskins also said he saw Ms. Sterling push one

of the security guards. (2 RT 282:5-9.) Mr. Crooks further said that

TCHD security chief Craig Lawyer had blood on his sleeve, but that he

did not actually see anyone injured in the incident. (1 RT 22:11-28.)

TCHD’s CEO Larry Anderson testified that he saw Ms. Sterling put her

hands on Mr. Lawyer, but was later overheard to say that he had testified

9

Page 21: Cross-Appellant Opening Brief in TriCity v. Sterling

falsely because he actually had been unable to see her hands from where

he was standing. (1 RT 85:5-17; 3 RT 362:4-12.)

Concerning the second incident, the trial court made equally

direct findings:

Sterling went to the boardroom door and called out forReno and Karen as was apparently required by Board rules. . . . At some point, according to petitioner Crooks, whogave the most credible account of the event, Sterling stoodbehind him, reached over his shoulder and took a photo. She touched him enough that he became aware of herpresence and instinctively pushed backwards and turnedaround. This turning action caused Sterling’s weight to beon his back while it was twisted. This resulted in a minormuscle strain.

The Court does not believe there is proof by clear andconvincing amount that an assault or battery took place.Sterling’s goal was not to touch Crooks but to conversewith Reno or with Karen about the T.V. and to take aphoto. More likely than not, the touching was not evenintentional but more likely careless.

(5 RT 12:22-13:11.)

Again, the court’s findings were amply supported by the evidence.

Ms. Sterling’s testimony is that she went to the boardroom door to report

that the television on which she had been monitoring the Board meeting

had been removed. (3 RT 520:11-521:6.) She did not attempt to enter

the room. (3 RT 521:20-21.) Mr. Crooks stood in front of her, while

Mr. Soskins took her picture. (3 RT 522:3-11, 523:16-19.) Ms. Sterling

10

Page 22: Cross-Appellant Opening Brief in TriCity v. Sterling

then raised her camera to take a picture, and Mr. Crooks raised his arm.

(3 RT 523:19-21.) However, Ms. Sterling testified that she did not

touch Mr. Crooks, or anyone else, at all. (3 RT 523:21-24, 524:15-21.)

Mr. Rivero likewise testified that he witnessed the incident and did not

see any physical contact. (3 RT 358:22-359:08.)

TCHD’s witnesses, on the other hand, gave absurdly inconsistent

accounts:

• Mr. Anderson testified that Mr. Crooks “jumped” between him

and Ms. Sterling, and that Ms. Sterling “pushed him, jumped on

his back.” (1 RT 79:2-8.) However, he also admitted that he

“didn’t physically see” the incident. (1 RT 79:12-14.)

• Boardmember and Petitioner George Coulter testified that at least

seven men tried to hold Ms. Sterling back from entering the room,

but she pushed the men through the door and knocked Mr. Crooks

to the ground. (2 RT 131:27-132:9, 145:8-146:8.)

• Board chairperson and Petitioner Rosemarie Reno testified that

Ms. Sterling pushed Mr. Crooks to the ground and pinned him

11

Page 23: Cross-Appellant Opening Brief in TriCity v. Sterling

there with her knee in his back, while he held himself up with one

hand. (2 RT 223:19-224:11.) 2

• Mr. Soskins testified that Ms. Sterling “was either like standing

on Rick Crooks or floating over him or something.”

(2 RT 282:28-283:1.) 3

• TCHD’s third-party witness Erick Starck testified that Mr. Crooks

did not fall down, but that Ms. Sterling was “hopping” on top of

him with her camera in the air. (4 RT 606:22-607:16.)

• But Mr. Crooks, the supposed victim of all this mayhem, said

nothing about being knocked to the ground or trampled upon. He

testified only that he was trying to lock the meeting room door

when he “felt a large massive weight on my back and it twinged

The trial court said about this testimony:2

It is noted significantly that the Petitioner Reno’s versionof the second incident on February 24 , 2011 is soth

extremely different from everyone else’s version that itcould not possibly be accurate. Her subjective claim offear is based on a set of circumstances that she says shewitnessed but which clearly did not actually occur.

(5 RT 8:15-21.)

Mr. Soskins admitted to taking a photograph of the second3

incident, which he emailed to Mr. Lawyer, but then deleted from hisphone. (2 RT 302:6-13.) No such picture was offered at trial.

12

Page 24: Cross-Appellant Opening Brief in TriCity v. Sterling

my back in terms of pain” – the “massive weight” being nothing

more than Ms. Sterling’s arm, holding a camera. (1 RT 24:9-21.)

The foregoing illustrates that not just substantial evidence, but in

fact the overwhelming preponderance of the evidence, demonstrated at

trial that TCHD’s petitions were singularly lacking in merit.

C. Procedural History

On March 4, 2011, TCHD filed eight petitions for civil restraining

orders against Ms. Sterling. (1 APP 1-200.) TCHD obtained eight ex

parte temporary restraining orders at that time. (Ibid.)

As the hearings on the permanent restraining orders were set for

March 25, 2011, just three weeks later, Ms. Sterling scrambled to obtain

legal assistance. TCHD has public funds at its disposal, and assigned

three attorneys to pursue Ms. Sterling. (5 RT 4:17-20.) Ms. Sterling

had no resources to afford counsel, but The McMillan Law Firm agreed

to defend her as part of its practice of providing representations to

employees, consumers, and disadvantaged victims in civil rights

disputes. (2 RA 818 ¶ 8-9].) Ms. Sterling obtained representation on4

March 22, 2011, just three days before trial. (Ibid.)

Respondent - Cross-Appellant’s Appendix will be cited as “RA.”4

13

Page 25: Cross-Appellant Opening Brief in TriCity v. Sterling

Ms. Sterling sought a 120-day trial continuance to conduct

discovery, which TCHD opposed. (1 RT 1:25-27; 1 RA 576-580.) The

court said that it would allow a continuance, but that the eight temporary

restraining orders would remain in place unless the trial went ahead as

scheduled. (1 RT 2:11-14, 6:10-15.) As Ms. Sterling could not perform

her duties as an elected official under these restrictions, she waived her

right to discovery and proceeded directly to trial just three days after

securing counsel. (1 RT 12:4-17.)

The consolidated trial commenced on March 25, 2011. At the end

of the second day of trial, TCHD voluntarily withdrew two of its

petitions, those filed on behalf of Alexander Yu and Dan Stein.

(2 RT 308:24-309:15.) On March 28, 2011, after TCHD closed its

evidence, Ms. Sterling filed a motion for judgment pursuant to Code of

Civil Procedure section 631.8(a). (2 AA 260-296.) The next day, but

still before Ms. Sterling had offered any evidence, the trial court found

that it was a “close case” but denied the motion. (3 RT 335:15-17.)

After Ms. Sterling presented her case, the trial court on April 4,

2011 issued its oral decision to deny the six remaining restraining

orders. The court explained, in detail, the facts supported by the

evidence presented at trial. The court rejected the majority of TCHD’s

14

Page 26: Cross-Appellant Opening Brief in TriCity v. Sterling

story, including the claims that Ms. Sterling harmed or threatened

anyone in the past, or posed such a threat to anyone in the future.

After prevailing on the eight Petitions, Ms. Sterling filed a motion

for private attorney general fees and costs under Code of Civil

Procedure section 1021.5. (See, 1 RA 643-676.) The trial court denied

the attorney’s fees motion. (4 RA 1262-1268.) Ms. Sterling timely

appealed. (2 AA 355-362; 4 RA 1269.)

15

Page 27: Cross-Appellant Opening Brief in TriCity v. Sterling

RESPONDENT’S BRIEF

I. INTRODUCTION

In this appeal, TCHD tries to create mountains out of legal

molehills. TCHD complains of the exclusion of evidence that it had

every opportunity to present; of legal rulings the trial court did not

make; and of statutory interpretations, mandated by precedent, that

would not affect the outcome even if overturned.

TCHD argues exclusively for reversal in the Crooks case, but

cannot identify even a colorable reason why the judgment in that case

could be overturned. (AOB at 19-44.) It discusses the other cases only

in a perfunctory suggestion that they should be swept along in a Crooks

reversal. (AOB at 44-45.)

II. ARGUMENT

A. Summary of Argument

At trial, TCHD did not come close, by any stretch of the

imagination, to establishing any violence or a credible threat of violence

on the part of Ms. Sterling. This does not stop it from charging the trial

court with significant legal errors. None of these supposed errors can be

addressed here, because they are not expressed in a statement of

decision or in a court order or judgment. Even if these supposed errors

16

Page 28: Cross-Appellant Opening Brief in TriCity v. Sterling

were properly before this Court, they prove on examination to be both

ephemeral and inconsequential.

B. TCHD Failed to Request a Statement of Decision

Appellant’s Brief ignores a critical point: following the bench trial

leading to the judgments on appeal here, neither side requested a

statement of decision pursuant to Code of Civil Procedure section 632,

which requires the court to issue such a statement “upon the trial of a

question of fact by the court.” Consequently, the trial court did not issue

a statement of decision.

The absence of a statement of decision has significant

consequences for this appeal. In particular, the doctrine of implied

findings necessarily guides this Court’s review. “If the appellant fails

to [obtain a statement of decision], the reviewing court will infer the trial

court made every implied factual finding necessary to uphold its

decision . . . .” (Fladeboe v. American Isuzu Motors Inc. (2007) 150

Cal.App.4th 42, 48.) This doctrine is a natural and logical corollary to

three fundamental principles of appellate review: (1) a judgment is

presumed correct; (2) all intendments and presumptions are indulged in

favor of correctness; and (3) the appellant bears the burden of providing

an adequate record affirmatively proving error. (Id. at 58.)

17

Page 29: Cross-Appellant Opening Brief in TriCity v. Sterling

TCHD argues that “where the trial court fails to examine certain

relevant evidence in deciding whether a restraining order is necessary,

the appellate court should reverse so that the trial court can make factual

findings based on all relevant evidence.” (AOB at 27.) Inasmuch as

TCHD cannot say what findings the trial court made, this argument does

not advance its position.

C. TCHD Improperly Bases Its Challenges on the TrialCourt’s Statements from the Bench

Without a statement of decision to look to, TCHD tries to find

error solely in the trial court’s oral statements regarding the reasons for

its decision. (See, AOB at 29, 30, 31, 33.)

However, an appellant may not point to statements made from the

bench to argue that the trial court erred, even on a point of law. This

restraint applies in a case in which a statement of decision was available,

because the statement of decision is where an appellate court must look

for error in the court’s reasoning:

the judgment here will not be impeached . . . by the court’soral comments . . . as they pertain to legal theories orconclusions. A formal statement of decision enables areviewing court to determine what law the trial courtemployed. A failure to request a statement of decisionresults in a waiver of findings and conclusions necessary tosupport the judgment and we will accordingly imply suchconclusions.

18

Page 30: Cross-Appellant Opening Brief in TriCity v. Sterling

(Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.) “[A]

court’s comments . . . may never be used to impeach the order or

judgment.” (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646

(emphasis in original, citations and internal quotation marks omitted);

accord, In re Marriage of Green (1989) 213 Cal.App.3d 14, 20

(“[Appellant] cannot rely on the trial court’s oral comments or

announcement of intended decision to impeach its judgment”); Smith v.

City of Napa (2004) 120 Cal.App.4th 194, 199 (“Contrary to the

[appellant’s] apparent belief, we may not impeach the trial court’s

ultimate judgment with its remarks at the hearing on the petition or in

announcing its ruling from the bench”).)

The necessity for this rule is apparent. A court is not bound by its

statement of intended decision and may order a judgment wholly

different from the one announced. (Marriage of Ditto, 206 Cal.App.3d

at 646.) The statement of decision procedure allows the court to review

its intended decision and change it if necessary, and to place the law it

actually applied on the record; the statement of decision allows the

appellate court to determine what law the trial court ultimately

employed. (Id. at 647.) “Absent contrary indication in the final

judgment or statement of decision, the appellate court will assume that,

19

Page 31: Cross-Appellant Opening Brief in TriCity v. Sterling

during the period before rendition of judgment, the trial court realized

any error and corrected it.” (Shaw, 170 Cal.App.4th at 268; accord,

Marriage of Ditto, 206 Cal.App.3d at 647.)

Consequently, on this appeal of cases in which no statement of

decision was requested, this Court must presume that the trial court both

found the necessary facts and applied the law correctly:

We are mindful that in the instant case the alleged error isone of law and not one of fact. But the result is the same.In both instances, whether the trial court in its intendeddecision made an alleged error of law or fact, the intendeddecision remains only an intended decision. It is thestatement of decision and judgment which allow the trialcourt to rectify any errors. Because a statement of decisionwas not requested, the trial court did not have theopportunity to amend; the judgment therefore governs.

(Marriage of Ditto, 206 Cal.App.3d at 648.)

The same rule applies even where a statement of decision is not

required. For example, on the appeal of the denial of a preliminary

injunction, the appellate court noted:

[W]here the trial court was not required to prepare astatement of decision or explain its reasons for denying theinjunction, it is especially important to refrain from usingthe court’s oral comments as a basis for reversal.

(Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451; accord,

Pellegrino v. Robert Half Intern., Inc. (2010) 182 Cal.App.4th 278, 294

20

Page 32: Cross-Appellant Opening Brief in TriCity v. Sterling

(“we will similarly refrain from using the court’s oral comments during

the hearing to impeach the final attorney fees award”).)

TCHD justifies its attempt to secure reversal on the basis of the

trial court’s oral comments solely by citation to Gdowski v. Gdowski

(2009) 175 Cal.App.4th 128, 139. (AOB at 19.) This reliance is

misplaced. In Gdowski, the appellate court reversed the decision of the

trial court because it was based on the losing party’s method of cross-

examination instead of the merits of the case. (Id. at 137.) The

appellate court learned that this was the basis of the trial court’s

decisions from oral remarks made at trial. (Ibid.)

However, the Gdowski appellate court was quick to point out that

it was not retreating from the general rule that a trial court’s oral

statements cannot be a basis for reversal. In fact, it quoted the Whyte

decision to that effect. (175 Cal.App.4th at 138 n. 3.) But it also found

Gdowski different from the cases applying the general rule:

[W]e note that the present case is distinguishable. Here, weconsider the trial court’s oral comments to determine thetrial court based its decision on a ground that a courtcannot consider – the manner of counsel’s cross-examination and the client’s failure to try to stop thatexamination.

(Ibid.)

21

Page 33: Cross-Appellant Opening Brief in TriCity v. Sterling

Here, TCHD does not try to suggest that the trial court based its

decision on any ground that a court cannot consider. Rather, it contends

that the trial court’s oral remarks indicate it made an error of legal

reasoning. To find such error, it is not allowed to point to the trial

court’s oral remarks, but instead must identify errors, if any, in the order

denying its petitions.

D. Note on Citations to the Record

One persistent problem with the Legal Argument section of

Appellant’s Opening Brief is that, when it comes time to criticize a

ruling of the trial court, the brief does not actually cite to the record but

instead cites other pages of the Opening Brief on which multiple

citations to the record can be found. Examples can be seen in

Appellant’s Opening Brief at pages 21, 22, 24, 25, 31, 32, and 33.

The result is that it is often difficult to see exactly what TCHD is

complaining about. Even worse, when the citation is tracked down and

the trial court’s actual ruling is analyzed, it often turns out that TCHD’s

description of what the trial court said or did is less than complete or

accurate. Examples are discussed in this brief below at pages 23 to 25,

29, 42, and 43.

22

Page 34: Cross-Appellant Opening Brief in TriCity v. Sterling

E. The Trial Court’s Exclusion of Hearsay EvidenceCannot Be a Basis for Reversal

1. The Exclusions TCHD Complains Of Are QuiteLimited

Appellant’s Opening Brief complains at great length about the

exclusion of hearsay from the trial, but it largely obfuscates the extent

of the exclusions.

Mostly, TCHD complains that the trial court excluded as hearsay

an “incident report” that it tried to introduce into evidence. (AOB at 22,

cross-referencing AOB at 12-14.) The incident report is at 2 AA 425-

32.

TCHD also complains that the court “refused to consider for its

truth testimony that Sterling had caused Lawyer’s arm to bleed.”

Appellant’s Opening Brief does not directly identify this testimony, but

instead cross-references its own pages 12 to 14. These pages discuss the

occasions on which hearsay testimony was supposedly excluded. But,

on examination, only one of these occasions actually involved the

exclusion of testimony.

It turns out that the sum total of testimony excluded as hearsay is

TCHD’s first example, witness Larry Anderson’s statement that: “[Craig

Lawyer] said Kathleen [Sterling] had scratched him in the incident that

23

Page 35: Cross-Appellant Opening Brief in TriCity v. Sterling

I first referenced.” (1 RT 80:27-28.) Specifically, TCHD quotes the

trial court as saying that it will not consider this testimony for the

purpose of whether the scratching actually occurred. (AOB at 14, citing

2 RT 127:15-25.)

Page 14 of the Opening Brief mentions two other places in the

transcript that supposedly show the trial court excluding testimony on

hearsay grounds. But neither of them actually does.

In the first instance, TCHD complains about an occasion on which

Ms. Sterling’s hearsay objection was overruled. (AOB at 14, citing 2

RT 127:15-25.) Specifically, Ms. Sterling’s counsel objected to

testimony on hearsay grounds, and the trial court overruled the objection

because the testimony was “not being offered for the truth of the matter

stated.” (2 RT 127:23-24.)

TCHD apparently wants to argue that the court was incorrect in

surmising that the testimony was not offered for the truth of the matter,

and should be reversed on that ground alone. At the time, though,

TCHD’s counsel did not disagree with the court in any way about the

purpose for which it introduced the testimony, and did not ask the court

to consider the testimony for the truth of the matter. By failing to do so

at the time, it waived any complaint it might now have about the court’s

24

Page 36: Cross-Appellant Opening Brief in TriCity v. Sterling

surmise. It can scarcely now complain of a supposed error simply

because the court overruled its opponent’s objection while its own

counsel kept silent about the purpose for which the testimony was

offered.

In the other instance, TCHD complains that Ms. Sterling’s

counsel asked the court to disregard certain testimony as to the truth of

whether Ms. Sterling caused an injury to Mr. Lawyer, and the court said

that it would do so. (AOB at 14, citing 2 RT 185:26-186:3.) The

problem with this argument is that Ms. Sterling’s counsel was being

overcautious – the witness did not actually testify that Ms. Sterling was

the cause of an injury. The closest the witness came on this point was

to say that he saw Ms. Sterling push some security guards, and that “I

believe I know that Craig Lawyer’s arm was scratched at that time.”

(2 RT 185:1-2.) However, when Ms. Sterling’s counsel moved to strike

that specific testimony for lack of foundation, the court ruled: “I’m

going to let it stay in. We already . . . know that.” (2 RT 185:3-6.)

TCHD cannot complain of error in the trial court’s acceptance of

evidence to which Ms. Sterling’s counsel objected, or of the trial court’s

disregarding of testimony that its witness did not give.

25

Page 37: Cross-Appellant Opening Brief in TriCity v. Sterling

Hence, TCHD’s entire hearsay argument stands or falls on the

exclusion of the police report, and of witness testimony that “Craig

Lawyer said Kathleen had scratched him.”

2. TCHD Waived Its Argument Against theHearsay Rulings by Failing to Make It to theTrial Court

TCHD asserts a single point of law to support its argument that

the trial court erred in excluding these few instances of hearsay

evidence:

Section 527.8 provides that “[a]t the hearing, the judgeshall receive any testimony that is relevant and may makean independent inquiry.” (Code Civ. Proc., § 527.8, subd.(j), emphasis added.)

(AOB at 21-22.) However, at no time did TCHD ever make this

argument to the trial court.

Failure to make the argument to the trial court dooms any effort

to rely on it on appeal. The Supreme Court has made this point

forcefully:

Defendant now contends that the statements were nothearsay, but rather went to [the witness’s] state of mindshortly before he disappeared. We agree. . . . Defendant’strial counsel did not, however, specifically raise thisground of admissibility. In these circumstances he isprecluded from complaining on appeal.

26

Page 38: Cross-Appellant Opening Brief in TriCity v. Sterling

(People v. Fauber (1992) 2 Cal.4th 792, 854, citing Evid. Code, § 354,

subd. (a), Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, and

People v. Frye (1985) 166 Cal.App.3d 941, 951.)

It is true, of course, that the trial was conducted before this Court

decided Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th

550, which affirmed a judgment under section 527.8 after a trial in

which the judge had admitted hearsay. But TCHD does not contend that

that decision changed the law in any way. Rather, TCHD contends that

the law is plainly stated, both now and at the time of trial, in section

527.8, subdivision (a); that Kaiser Foundation Hospitals merely read the

statute correctly; and that the Court should do the same thing here.

Indeed, echoing Kaiser Foundation Hospitals, TCHD urges that

the result they advocate is a consequence of the “plain language” of the

statute. (AOB at 22.) If their position here is simply the plain language

of the statute that was in effect at the time of trial, then they have no

excuse for not quoting this plain language to the trial court, and cannot

rely on it for the first time on appeal. “Where, as here, a proponent of

evidence does not assert a particular ground of admissibility below, he

or she is precluded from arguing on appeal that the evidence was

27

Page 39: Cross-Appellant Opening Brief in TriCity v. Sterling

admissible under a particular theory.” (Shaw v. County of Santa Cruz,

170 Cal.App.4th at 282-83.)

Actually, TCHD had a good reason for not arguing at trial that

section 527.8, subdivision (a) makes all hearsay admissible. It wanted

to invoke the hearsay rule itself whenever doing so suited its purposes,

and it did, repeatedly. (3 RT 404:27-405:2, 450:16, 468:27-28, 517:6-

7.) It cannot go through trial maintaining that the hearsay rule applied,

and now seek reversal on appeal on the ground that it did not.

3. TCHD Cannot Show Prejudice from the HearsayRulings

TCHD’s argument that the exclusion of hearsay evidence was

prejudicial rests on the notion that the trial court found this to be a

“close case,” and therefore would likely have ruled differently if it just

had admitted a little bit more evidence in TCHD’s favor. Without

directly citing to the transcript, TCHD tells this Court that the hearsay

rulings were prejudicial because “[t]he trial court said this was a close

case,” and “[i]t is certainly more than an abstract possibility that this

additional evidence would have pushed the close case in Tri-City’s

favor.” (AOB at 24, 25.)

28

Page 40: Cross-Appellant Opening Brief in TriCity v. Sterling

TCHD’s suggestion that the trial court found this to be a close

case is more than a little disingenuous. By chasing its cross-references

around the Opening Brief, one can ultimately discover that the trial

court’s statement about a “close case” can be found in volume III of the

trial transcript, at page 335, lines 15 to 17. That, however, was the

middle of the trial. TCHD had just rested, and Ms. Sterling had not yet

presented any evidence; rather, she had just moved for judgment

pursuant to Code of Civil Procedure section 631.8. (2 RT 309:16-19,

2 RT 310:13-318:25.) At the start of the next day, having heard

argument and reviewed the briefing, the trial court summed up its ruling

on the motion for judgment as follows:

I don’t think the case should have been dismissedyesterday. I don’t think it should be dismissed now. Butit’s certainly a close case.

(3 RT 335:15-17.) In other words, after hearing all of TCHD’s evidence

and none of Ms. Sterling’s, the trial court found only that the question

of whether to enter judgment in Ms. Sterling’s favor immediately was

a “close case”.

TCHD does not point to any statement of the trial court at the end

of trial suggesting it found this case to be particularly close. Indeed, the

29

Page 41: Cross-Appellant Opening Brief in TriCity v. Sterling

court’s remarks indicate just the opposite. Before closing arguments it

observed:

We didn’t hear any testimony about any threats that Ms.Sterling made to anyone ever.

(4 RT 614:20-21.)

But for the events of February 24th, I don’t think there’s acase here for the petitioners. I’m sort of wondering outloud if this is the wrong kind of restraining order to beseeking.

(4 RT 615:6-9.)

I think the explanation of the first incident on the 24thgiven by . . . Mr. Rivero and by Ms. Sterling causes me tohave a lot less concern about that incident than I did whenI spoke to you before about my tentative thoughts.

(4 RT 615:19-20.)

So the one person who was potentially involved withsomething that could loosely be called violence ortechnically be called it [i.e., Mr. Crooks], maybe . . . hedoesn’t think it’s a big deal in terms of this restrainingorder. He said he’s seeking a restraining order, but he saidhe’s not afraid of Ms. Sterling. And I’m not sure that aperson who states he has no fear is a proper subject of arestraining order.

(4 RT 617:4-11.)

But again, how do you get to all these other people whohave all these other hostilities towards Ms. Sterling to goon and on and on for years being afraid? And what arethey afraid of? Nobody was able to tell me. I asked

30

Page 42: Cross-Appellant Opening Brief in TriCity v. Sterling

several questions and some of the answers I think werepretty far-fetched.

So to give you an idea of what I think. I’m not sure howwe get to that second level. And the only way we can getthere is to say, but for the security guards and somehow shewould have attacked somebody on the board. But I don’tknow how you get there.

(4 RT 617:12-22.)

Following closing argument, the court appeared to be even less

convinced that the case was close:

Most of the things complained about by the petitionerswere trivial and inconsequential.

(5 RT 5:5-6.)

The theme is the allegation of escalating aggressiveconduct. There were allegations that Ms. Sterling is“completely unhinged,” increasingly hostile, unpredictable,and that she lost control in closed sessions. The courtbelieves that virtually no evidence of this theme, or any ofthese claims, was presented in the trial.

(5 RT 5:12-19.)

There is, however, an even more compelling reason why the

exclusion of evidence on hearsay grounds could not possibly have been

prejudicial. That reason is that TCHD could easily have presented

almost all of the excluded evidence, but elected not to do so.

31

Page 43: Cross-Appellant Opening Brief in TriCity v. Sterling

TCHD’s prejudice argument revolves almost entirely around the

exclusion of its internal report of the February 24, 2011 events – i.e., the

“Crime/Incident Report” of Matthew Hernandez. (2 AA 425-32.)

TCHD expounds at great length about all of the evidentiary details that

might be found within that report, and argues that the case might well

have come out differently if the court had been exposed to these details.

(AOB at 12-14, 24-25.)

However, TCHD cannot possibly claim any prejudice from the

exclusion of Officer Hernandez’s report, because it had a ready

alternative avenue to introduce the same evidence. Officer Hernandez

himself was present in the courtroom and fully able to testify. In fact,

TCHD intended to call him as a witness to authenticate the report.

(2 RT 274:17-23.)

When the trial court excluded the report on hearsay grounds,

TCHD could have simply called Officer Hernandez to the stand to

testify to the facts he had put into the report. Ms. Sterling’s counsel did

not object to the facts in the report going into evidence, or to Mr.

Hernandez testifying about them. Rather,

I’m against hearsay statements being in . . . without theopportunity to cross-examine. If they want to go ahead andhave him describe what he saw or experienced, that’s fine.

32

Page 44: Cross-Appellant Opening Brief in TriCity v. Sterling

(2 RT 275:12-15.)

But TCHD’s counsel had absolutely no desire to present this

evidence. Her position was: “If you’re not going to admit the report

then there’s no reason to call him.” (2 RT 277:4-5.) This remained

TCHD’s position even after the court offered: “You can have as much

as time as you want. You can pursue whatever you want.” (2 RT 277:7-

8.)

Thus, if the trial court was not exposed to any facts in Officer

Hernandez’s report, this omission was due entirely to TCHD’s conscious

election not to present those facts. It requires a fair amount of audacity

for TCHD now to argue, after it elected not to present Officer

Hernandez’s testimony, that it was so prejudiced by the exclusion of

anything that might be found in his report that the judgments below

must be reversed.

It is conceivable that, had TCHD permitted Officer Hernandez to

testify to the substance of his report, some of his testimony might have

been objected to as hearsay – i.e., it might be that his report contained

hearsay within hearsay, which would have been objectionable even if he

testified. But, since TCHD decided for tactical reasons to keep him off

the stand, we will never know what he would have testified to, what Ms.

33

Page 45: Cross-Appellant Opening Brief in TriCity v. Sterling

Sterling’s counsel would have objected to, or how the court would have

ruled. As the case comes to this Court, TCHD alone is responsible for

the fact that anything contained in Officer Hernandez’s report was not

considered by the trial court in deciding these cases.

Officer Hernandez’s report does contain one item of hearsay-

within-hearsay on which TCHD puts particular reliance. He reported:

[Craig] Lawyer stated that during the situation, Sterlinggrabbed his (Lawyer’s) arm causing a scab to break. Lawyer explained that the scab was from a previous injury.

(2 AA 427; see AOB at 13.) Since TCHD declined to put him on the

stand, it is unknown whether Officer Hernandez would have so testified

or whether the trial court would have allowed him to do so. TCHD

might, for example, have been able to lay a foundation to have this

admitted as a spontaneous statement under Evidence Code section 1240.

Again, because of TCHD’s tactical decision not to present Officer

Hernandez’s testimony, we will never know.

In reality, the Hernandez report was merely cumulative of the

testimony of other eyewitnesses to the “February 24 incident,” and

would not have added anything to the trial court’s deliberations.

Immediately after the court excluded the report, and TCHD elected not

to put Officer Hernandez on the stand, the court observed:

34

Page 46: Cross-Appellant Opening Brief in TriCity v. Sterling

I have a pretty good idea what happened in incident 1 andincident 2. The record for any appeal that either of youmight have is all there. . . . And so if you want to askwitnesses about it and ask him something new, might beuseful. But if there’s nothing new, you know, I probablyheard it enough. And you’re protected enough. You got itin the record at least 10, 15, 20 times probably.

(2 RT 277:8-16.)5

The other hearsay exclusion of which TCHD complains arises

from the trial court sustaining Ms. Sterling’s objection to Larry

Anderson’s testimony: “[Craig Lawyer] said Kathleen [Sterling] had

scratched him in the incident that I first referenced.” (1 RT 80:27-28.)

Again, TCHD simply failed to take the prudent step of putting the

percipient witness on the stand. Mr. Lawyer is in TCHD’s employ.

(1 RT 30:28-31:1.) TCHD represents on this appeal that he did not

testify because he was out of state with an ill family member. (AOB at

14 n. 6.) In fact, TCHD made no effort to make him available for trial;

it was quite casual about his availability and apparently did not even

know where he was at the time of trial:

The excluded report also had attached to it a witness statement5

of Michael Parent. (2 AA 432.) TCHD does not argue that it sufferedany prejudice from the exclusion of this attachment. If it did, the sameconsiderations would apply. Mr. Parent’s report was cumulative of whatTCHD’s other witnesses said; he was TCHD’s lead security officer(2 AA 426) and could easily have been called to testify.

35

Page 47: Cross-Appellant Opening Brief in TriCity v. Sterling

We’re trying to get ahold of the man who was injured,Craig Lawyer. He was actually in North Carolina. He’sgot ill family. He’s been out of town. We’re trying to getahold of him to see if we can . . . make arrangements forhim.

(3 RT 525:23-27.) TCHD obviously did not consider Mr. Lawyer’s

testimony very important; it opposed Ms. Sterling’s efforts to postpone

the trial, which would have allowed more time to bring him in to testify6

(1 RT 7:1-26), and it made no effort to secure his deposition testimony

before the trial commenced.

But, even if this Court were inclined to find error in TCHD’s

tactical decision not to present evidence concerning the possibility that

Ms. Sterling had somehow dislodged a scab on Mr. Lawyer’s arm, it

scarcely seems reasonably probable that this one item would have turned

the tide in these cases. As TCHD is quick to point out, it was allowed

to present extensive evidence to the effect that Mr. Lawyer had blood on

his shirt after his confrontation with Ms. Sterling. (AOB at 8, 14, citing

1 RT 22:25-28, 79:24-28, 95:23-28, 96:6-12; 2 RT 127:7-16, 128:23-27,

129:4-6, 142:1-3, 143:25-28, 185:1-2, 18-24, 239:1-3 265:23-26,

266:7-23.) (One percipient witness observed, though, that the dried

TCHD’s counsel announced: “I am more than happy to go6

forward with the trial today. We are prepared.” (1 RT 11:18-19.)

36

Page 48: Cross-Appellant Opening Brief in TriCity v. Sterling

blood on Mr. Lawyer’s shirt amounted to “just like a couple droplets.”

(3 RT 355:25),)

Still, the court did not believe that Ms. Sterling caused Mr.

Lawyer’s to bleed, and its principal reason for so concluding was that

“Craig Lawyer did not testify.” (5 RT 12:10.) It strains credulity to

suggest that a couple of hearsay statements to the effect that Mr. Lawyer

had sustained a scratch that dislodged a scab would have flipped the trial

court’s conclusions 180 degrees. As this Court observed in the Kaiser

Foundation Hospitals decision, “Trial judges are particularly aware of

the potential unreliability of hearsay evidence, and are likely to keep this

in mind when weighing all of the evidence presented.” (201

Cal.App.4th at 557.)

F. The Trial Court’s Definition of Battery Cannot Be aBasis for Reversal

TCHD argues at some length that the trial court erred in the

definition of battery that it applied to the “First Incident on February 24,

2011.” (AOB at 28-33.) However, the court’s written order did not

contain a definition of battery, let alone an erroneous definition, and

TCHD takes exception only to some of the court’s oral remarks before

37

Page 49: Cross-Appellant Opening Brief in TriCity v. Sterling

judgment. This route is unavailable to it. It cannot now find error in the

court’s oral remarks, for the reasons explained above at pages 17 to 20.

Even if the argument were available to it, there was no error in the

court’s oral definition of battery. TCHD parses comments the court

made when it discussed battery and tries to argue that each is a ground

for reversal. These piecemeal arguments ignore the real reason the court

decided that battery had not been proved – in light of the conflicting

testimony, TCHD had not demonstrated battery as a factual matter,

under any definition. This becomes clear when one looks beyond the

snippets of the court’s discussion TCHD wants to talk about, and looks

instead at the court’s conclusion:

The first incident. Five minutes before the meeting sterlingentered the room. Security guards, including Crooks,blocked her advance into the room. She tried to walkaround them, but they moved and continued to block heradvance. At most, Sterling bumped into Crooks. It was nothard enough to move him. There was absolutely no injury.

. . .

This court cannot find by a preponderance of the evidencethat Sterling committed either an assault or a battery. Herintention was clearly to get around the guards againbefore the meeting, not to come into contact with them.

(5 RT 11:2-12:9 (emphasis added).)

38

Page 50: Cross-Appellant Opening Brief in TriCity v. Sterling

Thus, the court’s bottom line was that “at most, Sterling bumped

into Crooks,” but not hard and without injury, and that Ms. Sterling’s

“intention was clearly to get around the guards again before the meeting,

not to come into contact with them.” This, in and of itself, dooms any

battery claim TCHD might want to resurrect on appeal. “[T]he crime of

battery requires that the defendant actually intend to commit a willful

and unlawful use of force or violence upon the person of another.”

(People v. Lara (1996) 44 Cal.App.4th 102, 107 (quotation marks and

citation omitted).) To state the obvious, a person who does not intend

to come into contact with another certainly does not intent to commit a

willful and unlawful use of force on that other.

TCHD tries to argue that “[t]he trial court erroneously concluded

that Sterling did not commit a battery because she did not intend to

batter Crooks in the first February 24 incident.” (AOB at 30-31.)

TCHD asserts that the trial court erred because it did not recognize that

“a person need not have an intent to injure to commit a battery. She

only needs to intend to commit the act.” (AOB at 30-31, quoting People

v. Mansfield (1988) 200 Cal.App.3d 82, 88 (brackets and quotation

marks omitted).) TCHD also says that “the trial court should have

39

Page 51: Cross-Appellant Opening Brief in TriCity v. Sterling

simply looked to whether Sterling intentionally touched Crooks.” (AOB

at 30.)

But the trial court’s conclusion was that Ms. Sterling’s “intention

was clearly . . . not to come into contact with” the guards at all (5 RT

12:7-9) – i.e., not to commit the act. TCHD acknowledges that an intent

to commit the act is required to prove battery: “‘[Defendant] only needs

to intend to commit the act.” (AOB at 28, 31, quoting Mansfield, 200

Cal.App.3d at 87-88.) Therefore, even under TCHD’s view of the law,

the court was completely correct in finding no battery.

TCHD’s argument concerns only the “First Incident” on February

24, 2011. TCHD does not take exception to the trial court’s conclusion

that no battery occurred in the “Second Incident.” (5 RT 12:14-13:11.) 7

In any event, such an argument would be equally unavailing, for the

same reasons. In the second incident as in the first, Ms. Sterling could

not be held to have committed battery because the trial court found she

did not intend to come into contact with Mr. Crooks:

Second incident.. . .At some point, according to petitioner Crooks, who gavethe most credible account of the event, Sterling stood

Nor does TCHD dispute the court’s conclusion that Ms. Sterling7

did not commit battery against Mr. Soskins. (5 RT 5:25-6:13.)

40

Page 52: Cross-Appellant Opening Brief in TriCity v. Sterling

behind him, reached over his shoulder and took a photo.She touched him enough that he became aware of herpresence and instinctively pushed backwards and turnedaround. This turning action caused Sterling’s weight to beon his back while it was twisted. This resulted in a minormuscle strain.

The court does not believe there is proof by clear andconvincing amount that an assault or battery took place.Sterling’s goal was not to touch Crooks but to conversewith Reno or with Karen about the T.V. and to take aphoto. More likely than not, the touching was not evenintentional but more likely careless.

(5 RT 12:14-13:11.)

TCHD’s other arguments are similarly misguided. It takes

exception, at great length, to the court’s observation that Ms. Sterling

had a right to enter the meeting room and that TCHD’s guards had no

right to bar her from doing so. (AOB at 28 to 30.) It argues that “[t]here

is no legal justification for a battery short of self-defense.” (AOB at 29

(quotation marks and citation omitted).) The problem though, is that the

court never said that Ms. Sterling had a legal defense for a battery that

she committed; it said that she did not commit battery because she did

not intend to come into contact with the guards. The question of

whether she was permitted to enter the room was, at most, a

consideration in evaluating her intent; if she was not trying to trespass,

then it was not likely that she was trying to use force to enter the room.

41

Page 53: Cross-Appellant Opening Brief in TriCity v. Sterling

Finally, TCHD argues that “[t]he trial court erroneously focused

on whether Sterling would have been criminally prosecuted for her

actions.” (AOB at 31-32.) Once again, TCHD takes liberties with the

court’s expressed views. It argues at length that the trial court was

wrong in letting the battery issue turn on “the discretionary decision of

a public prosecutor, who frequently decide not to charge acts that

constitute crimes.” (AOB at 32.)

But that is not at all what the court did. TCHD carefully avoids

quoting the court’s decision on this point, and again hides what it is

talking about by citing the record only indirectly. (AOB at 31, cross-

referencing AOB at 16.) Again it is necessary to chase around its brief

to discover what it is talking about. In this case, it is referring to the

trial court’s statement:

At the very worst for Sterling she committed a battery onpetitioner Crooks. At the very best for Sterling, Crookscommitted a battery on her. Neither person would becharged or convicted by any prosecuting agency in acriminal case. This court cannot find by a preponderanceof the evidence that Sterling committed either an assault ora battery.

(5 RT 12:1-5.)

The import of this statement is clear: TCHD’s evidence was so

weak that no rational prosecutor would pursue a battery charge on these

42

Page 54: Cross-Appellant Opening Brief in TriCity v. Sterling

facts, but if he or she did it would not be possible to make the charge

stick. This is an observation about the strength of TCHD’s evidence,

not a substitution of prosecutorial discretion for the clear and convincing

standard under which the court was required to judge the case.

G. The Trial Court’s Observation that Mr. Crooks DidNot Fear Ms. Sterling Cannot Be a Basis for Reversal

1. TCHD’s Lengthy Argument About a Showing of“Fear” Is Irrelevant to the Outcome of thisAppeal

Finally, TCHD devotes nearly twenty-five percent of its brief, and

over forty percent of its legal argument, to a rumination on whether

section 527.8 requires a showing of irreparable injury. (AOB at 33-44.)

It argues that irreparable injury is not required, which leads it to assert

that “[t]he trial court erroneously concluded Tri-City had to prove more

than that Crooks was the victim of unlawful violence.” (AOB at 33.)

The springboard for this discursion is TCHD’s assertion: “The

court found that, even if Sterling engaged in an act of unlawful violence,

an injunction was not appropriate because Crooks was not in fear of

Sterling.” (AOB at 33.) As it does throughout its brief, TCHD obscures

what it is really talking about through indirect citations. It turns out8

TCHD’s only citation for the court’s supposed error is “Ante, p.8

(continued...)

43

Page 55: Cross-Appellant Opening Brief in TriCity v. Sterling

that it is complaining solely about the following remarks from the

bench:

Petitioner Crooks also testified he is not afraid of Sterling.He said he was concerned. Because of his honesttestimony, that is, that he’s not afraid, he’s not in fear, he’snot entitled to a restraining order because he’s not afraid ofSterling.

(5 RT 13:20-24.)

The reason TCHD found it necessary to obscure this citation is

that the very next sentence the court spoke completely neutralizes its

entire argument. It next said:

The court also does not believe her conduct in bothincidents is sufficient for a restraining order even if hetestified that he was afraid of Sterling.

(5 RT 13:24-27 (emphasis added).)

This point vitiates TCHD’s rambling discourse about whether the

trial court erred in declining to issue an injunction for Mr. Crooks

because he did not fear Ms. Sterling. As the court made clear, TCHD’s

(...continued)8

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

The court found that Crooks was “not entitled to arestraining order because he’s not afraid of Sterling,” butinstead is simply “concerned” about her. (5 RT 13:20-24.)

44

Page 56: Cross-Appellant Opening Brief in TriCity v. Sterling

showing was wholly inadequate to justify an injunction regardless of

whether Mr. Crooks feared Ms. Sterling.

In other words, TCHD’s argument – that “[t]he trial court

erroneously concluded Tri-City had to prove more than that Crooks was

the victim of ‘unlawful violence’” (AOB at 33) – is meaningless. The

trial court concluded that TCHD did not prove Mr. Crooks was a victim

of unlawful violence; it did not make any difference whether he was able

to “prove more.”

It therefore cannot make the slightest difference on this appeal

whether section 527.8 requires a showing of irreparable injury.

However, for the sake of completeness, we will address the matter

briefly. It turns out that TCHD is also wrong on the law.

2. TCHD’s Argument that Irreparable Injury NeedNot Be Shown Runs Counter to Established Law

TCHD argues that section 527.8 is an extraordinary statute under

which proof of irreparable injury is not required to secure an injunction.

(AOB at 33-43.) It acknowledges that a decision of this Division of this

Court, Scripps Health v. Marin (1999) 72 Cal.App.4th 324, is

completely contrary. It does not mention by name the cases that have

considered Scripps and reached the same conclusion. These include

45

Page 57: Cross-Appellant Opening Brief in TriCity v. Sterling

Russell v. Douvan (2003) 112 Cal.App.4th 399, 403, City of San Jose

v. Garbett (2010) 190 Cal.App.4th 526, 542, and City of Los Angeles v.

Animal Defense League (2006) 135 Cal.App.4th 606, 615.

In other words, TCHD is asking this court to overturn a very well-

entrenched body of law it launched more than a dozen years ago. “It is,

of course, a fundamental jurisprudential policy that prior applicable

precedent usually must be followed even though the case, if considered

anew, might be decided differently by the current justices.” (Sierra

Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th

489, 503-04 (citations omitted).)

Nevertheless, TCHD supports its position with three sub-

arguments: 1) that irreparable injury need not be shown where the

injunction is pursuant to statute; 2) that another authority, Gdowski, 175

Cal.App.4th 128, is contrary to Scripps; and 3) that legislative history

supports its position. None of these can withstand scrutiny.

a. Private Parties Must Show IrreparableInjury to Obtain a Statutory Injunction

For its first point, that irreparable injury is not required where the

injunction is pursuant to statute, TCHD relies on Paul v. Wadler (1962)

209 Cal.App.2d 615, 625; secondarily, it cites also to In re Marriage of

46

Page 58: Cross-Appellant Opening Brief in TriCity v. Sterling

Van Hook (1983) 147 Cal.App.3d 970, 984-985, and California Assn.

of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143

Cal.App.3d 419. 433-434. (AOB at 34.)

The first point to note is that this line of cases is inapplicable to

section 527.8. They concern statutes that create substantive offenses for

which the remedy of injunction is made available. “The theory is that

when a legislative body has authorized the injunctive remedy for the

violation of a statute, it has determined as a matter of law that

irreparable injury attends the violation of the statute.” (Paul, 209

Cal.App.2d at 625.) Section 527.8 is not a substantive statute; it is a

procedural statute, placed in the Code of Civil Procedure, that creates an

expedited procedure by which an employer can obtain the procedural

remedy of injunction for acts that are common law torts against its

employees.

However, to the extent that any of these authorities might actually

support TCHD’s point, they are obsolete. In a footnote, TCHD

mentions but quickly dismisses the contrary authorities DVD Copy

Control Assn. Inc. v. Bunner (2004) 116 Cal.App.4th 241, 250, and

Leach v. City of San Marcos (1989) 213 Cal.App.3d 648, 661. (AOB at

35 n. 12.) Both squarely hold that “[w]hen the plaintiff is not a

47

Page 59: Cross-Appellant Opening Brief in TriCity v. Sterling

governmental entity and the statute does not expressly provide

otherwise, a finding of interim harm is necessary.” (DVD Copy Control

Assn., 116 Cal.App.4th 241, 250, and Leach, 213 Cal.App.3d at

661–62.) In contrast, both Paul and Pearle Vision involved injunctions

sought by governmental entities.

TCHD tries to minimize the holding of DVD Copy Control and

Leach by asserting that “[b]oth Gdowski and Marriage of Van Hook . . .

involved non-governmental plaintiffs.” (AOB at 35 n. 12.) Gdowski

will be analyzed separately below. Marriage of Van Hook did not

concern irreparable injury. Rather, relying on Paul, it concluded that

“inadequacy of a remedy at law need not be shown to obtain injunctive

relief authorized by statute . . . where the statutory conditions for

issuance are satisfied.” (Id. at 985.)

However, to the extent that Marriage of Van Hook might be read

as support for the proposition that a private plaintiff need not prove

irreparable injury, it was overtaken by Leach. Marriage of Van Hook

was decided in 1983, Leach in 1989. In Leach, this Division of this

Court discussed its earlier decision in Pearle Vision Center, and

examined the statement “where an injunction is authorized by statute, a

violation thereof is good and sufficient cause for its issuance.’” (Pearle

48

Page 60: Cross-Appellant Opening Brief in TriCity v. Sterling

Vision, 143 Cal.App.3d at 433.) It concluded: “[T]his assertion is, as a

blanket statement of law, incorrect,” because the rule applies only where

a governmental authority seeks an injunction. (Leach, 213 Cal.App.3d

at 661.) The basis for this conclusion was an intervening California

Supreme Court decision, Cohen v. Board of Supervisors (1985) 40

Cal.3d 277, 286 – decided after Marriage of Van Hook – which

concluded that a trial court must evaluate future harm before an

injunction can issue. (213 Cal.App.3d at 661-62.)

Witkin summarizes the present state of the law as follows:

(3) Effect[] of Statute Authorizing Injunction. It hasbeen stated that, where injunctive relief is authorized bystatute and the statutory conditions for issuance aresatisfied, irreparable injury need not be shown to obtaininjunctive relief. (Paul v. Wadler (1962) 209 C.A.2d 615,625, 26 C.R. 341; . . . .) However, it is incorrect to state,as a blanket statement of law, that authorization of aninjunction by statute is sufficient to justify its issuance. Ifthe plaintiff is not a governmental entity, and the statutedoes not expressly provide that a showing of interim harmis not required, a showing must be made. (DVD CopyControl Assn. v. Bunner (2004) 116 C.A.4th 241, 250, 10C.R.3d 185 . . . .)

(6 Witkin, Cal. Proc. 5th (2008) Prov Rem, § 295, p. 236 (emphasis

added).)

49

Page 61: Cross-Appellant Opening Brief in TriCity v. Sterling

b. The Gdowski Decision Does Not SupportTCHD’s Position

Additionally, TCHD relies on Gdowski, 175 Cal.App.4th 128, to

urge this Court to overturn the holding in Scripps Health that future

harm must be shown before a section 527.8 injunction can be issued.

(AOB at 35-37.) Gdowski held that a protective order may issue under

the Elder Abuse Statute, Welfare and Institutions Code section

15657.03, without a showing of a threat of future abuse. (175

Cal.App.4th at 135-37.)

TCHD’s reliance on Gdowski is somewhat ironic, given that that

case viewed Scripps Health as correctly decided but distinguishable

because of differences between the statutes. (175 Cal.App.4th at 136-

37.) TCHD therefore has the somewhat delicate task of convincing this

Court to accept Gdowski’s interpretation of the Elder Abuse Statute and

then extend it to section 527.8, in direct contravention of Gdowski’s

interpretation of section 527.8. (AOB at 36 n. 14.)

It is fairly easy to see why Gdowski concluded that section 527.8

requires a showing of future harm but the Elder Abuse Statute does not.

Subsection (e) of section 527.8, which concerns the granting of interim

relief, provides:

50

Page 62: Cross-Appellant Opening Brief in TriCity v. Sterling

[T]he plaintiff may obtain a temporary restraining order . . .if the plaintiff also files an affidavit that, to the satisfactionof the court, shows reasonable proof that an employee hassuffered unlawful violence or a credible threat of violenceby the defendant, and that great or irreparable harm wouldresult to an employee. . . .

(Emphasis added.) A central holding of Scripps Health is that the

Legislature necessarily intended these provisions to apply also to the

issuance of a permanent injunction. (72 Cal.App.4th at 334-35.) The

comparable provision of the Elder Abuse Statute is quite different:

An order may be issued under this section, with or withoutnotice, to restrain any person for the purpose of preventinga recurrence of abuse, if a declaration shows, to thesatisfaction of the court, reasonable proof of a past act oracts of abuse of the petitioning elder or dependent adult.

(Welf. & Inst. Code, § 15657.03 subd. (c).) Consequently, Gdowski

decided not to follow Scripps Health. (175 Cal.App.4th at 136-37.)

Additionally, in arguing that the rules of statutory interpretation

dictate that section 527.8 does not require a showing of irreparable

harm, TCHD takes a very narrow view of the statute to be interpreted.

It ignores the observation of Scripps Health that the Legislature put

section 527.8 squarely in “a series of statutes” that “declare[] the

availability of injunctive relief in particular situations.” (72 Cal.App.4th

at 333.) Specifically, the Legislature put section 527.8 into Title 7,

51

Page 63: Cross-Appellant Opening Brief in TriCity v. Sterling

Chapter 3 of the Code of Civil Procedure, commencing with sections

525, 526 and 527, which define the general circumstances under which

injunctions may be issued.

These statutes have long been held to require that, absent an

affirmative legislative statement to the contrary, irreparable injury must

be shown before an injunction may issue. For example:

In deciding whether to issue an injunction pursuant to[Code of Civil Procedure] section 1281.8, the trial courtmust weigh the same factors it considers in proceedingsunder section 526: (1) likelihood of success on the merits,and (2) whether the moving party will suffer irreparableharm in the interim if the injunction is not issued.

(Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437,

446.)

Indeed, the Legislature has repeatedly deemed it necessary to

explicitly exempt injunction statutes from the irreparable injury

requirement of section 525. For example:

Injunctive relief shall be issued pursuant to Chapter 3(commencing with Section 525) of Title 7 of [the Code ofCivil Procedure], except that the showing of irreparableharm or inadequate remedy at law specified in Sections 526and 527 is not required.

(Food & Agr. Code, § 77863, subd. (b).) A similar exemption from the

irreparable injury requirement of section 525 et seq. can be found in

52

Page 64: Cross-Appellant Opening Brief in TriCity v. Sterling

dozens of statutes. These statutes also refute TCHD’s notion that the9

a statutory injunctive right that is silent on the irreparable injury

requirement is automatically exempt from it.

In contrast, when it placed section 527.8 in Title 7, Chapter 3,

following directly after sections 525 to 527, the Legislature elected not

to write a comparable exemption from the irreparable injury requirement

into the statute. The clear implication is that the Legislature did not

intend for section 527.8 to authorize injunctions without a showing of

irreparable injury.

TCHD emphasizes the illogic of its position by alluding to

subsection k(1) of section 527.8, allowing a renewal of an injunction

after three years “without a showing of any further violence or threats

of violence since the issuance of the original order.” It asserts: “[T]he

renewal provision’s failure to require an ongoing threat makes sense

when no such specific showing is required to obtain the injunction in the

first place.” (AOB at 39.)

To the contrary, it builds absurdity upon absurdity to insist that an

injunction issued in the absence of irreparable harm can be renewed

(See, e.g., Food & Agr. Code, §§ 19443, 77863, subd. (b); Bus.9

& Prof. Code, §§ 8658, 25602.2; Health & Saf. Code, §§ 1595.5,1641.1, 11838.3(a).)

53

Page 65: Cross-Appellant Opening Brief in TriCity v. Sterling

without any showing at all. Given that irreparable injury is a

presumptive requirement for injunctive relief, the obvious and sensible

implication of subdivision k(1) is that an anti-violence injunction will

be renewed after three years, in the absence of further violence of threats

of violence, only if it can be shown that the threat of irreparable injury

persists.

c. The Legislative History Does Not SupportTCHD’s Position

TCHD’s discussion of legislative history as a basis for

overturning Scripps ignores the most persuasive piece of history

available. Specifically, the Legislature has amended section 527.8 five

times since Scripps was decided in 1999 – in 2000, 2002, 2003, 2005,

2006, and 2010 – without seeing any need to make clear that it carries

no irreparable injury requirement. The Legislature’s failure to amend a

statute to correct a supposedly erroneous judicial interpretation when it

has the opportunity to do so is a strong indication that the interpretation

was correct. (Pacific Hills Homeowners Ass’n v. Prun (2008) 160

Cal.App.4th 1557, 1564; Edgar v. W.C.A.B. (1998) 65 Cal.App.4th 1,

17; Metropolitan Culinary Services, Inc. v. County of Los Angeles

54

Page 66: Cross-Appellant Opening Brief in TriCity v. Sterling

(1998) 61 Cal.App.4th 935, 947; Lindgren v. Baker Engineering Corp.

(1988) 197 Cal.App.3d 1351, 1354.)

Instead, TCHD places enormous reliance on the fact that early

drafts of section 527.8 required a showing that the victim “suffers

harassment” or that “harassment exists,” whereas the statute as enacted

requires a showing that the victim “suffered unlawful violence,” or that

defendant “engaged in unlawful violence.” (AOB at 42-43.) But the

question on the table is not whether past or present violence must be

shown; it is whether the threat of future irreparable injury must be

shown. As this Court said in Scripps, “Our review of the underlying

legislative history and documents relevant to the enactment of section

527.8 has disclosed no evidence of a legislative intent to alter the

traditional nature of prohibitory injunctive relief in this setting.” (72

Cal.App.4th at 335.) TCHD has apparently scoured the same history,

but has found nothing to contradict this conclusion.

H. TCHD’s Arguments for Reversal of the Trial Court’sDecisions on the Other Petitions Have Even Less Meritthan Its Arguments on the Crooks Petition

TCHD devotes essentially all of its briefing to the Crooks

petition, and (as is discussed above) cannot identify any reason why the

trial court’s strong decision to deny that petition should be disturbed on

55

Page 67: Cross-Appellant Opening Brief in TriCity v. Sterling

appeal. TCHD admits that it has nothing of substance to say in favor of

the other petitions that the trial court likewise denied, and instead simply

asserts that it told the trial court that the other petitions were tied to Mr.

Crooks’. (AOB at 44-45.) Regardless of what becomes of the Crooks

petition, TCHD has not even attempted to present a reason why the other

five petitions should be revived.

III. CONCLUSION

The grant or denial of a permanent injunction rests within the trial

court’s sound discretion and will not be disturbed on appeal absent a

showing of a clear abuse of discretion. (Horsford v. Board Of Trustees

Of California State University (2005) 132 Cal.App.4th 359.) Nothing

approaching an abuse of discretion has been shown here. The denial of

all of the injunctions sought by TCHD must be affirmed.

56

Page 68: Cross-Appellant Opening Brief in TriCity v. Sterling

CROSS-APPELLANT’S OPENING BRIEF

I. INTRODUCTION

Having succeeded in fending off TCHD’s eight injunction actions,

each of which falsely accused her of violence to keep her away from the

hospital she was elected to oversee, Ms. Sterling applied for an award

of attorneys fees pursuant to Code of Civil Procedure section 1021.5 –10

the private attorney general statute. (See, 1 RA 643-676.)

The trial court denied the fee application because it misinterpreted

the statutory criteria governing an award under section 1021.5.

Section 1021.5 provides:10

Upon motion, a court may award attorneys’ fees to asuccessful party against one or more opposing parties inany action which has resulted in the enforcement of animportant right affecting the public interest if:

(a) a significant benefit, whether pecuniary ornonpecuniary, has been conferred on the generalpublic or a large class of persons,

(b) the necessity and financial burden of privateenforcement, or of enforcement by one public entityagainst another public entity, are such as to make theaward appropriate, and

(c) such fees should not in the interest of justice bepaid out of the recovery, if any.

57

Page 69: Cross-Appellant Opening Brief in TriCity v. Sterling

II. SUPPLEMENTAL STATEMENT OF THE CASE – CROSS-APPEAL

A. Appealability of Judgment

The trial court’s denial of each of TCHD’s petitions for a

permanent restraining order was an appealable judgment. (Laraway v.

Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.) The

trial court’s order denying Ms. Sterling’s Motion for Attorneys’ Fees is

appealable as an order made after an appealable judgment pursuant to

Code of Civil Procedure section 904.1(a)(2). (Id. at 583 n. 6.)

B. Standard of Review

The normal standard of review for an attorneys’ fee determination

is abuse of discretion. (Serrano v. Stefan Merli Plastering Co., Inc.

(2011) 52 Cal.4th 1018, 1025-26; In re Conservatorship of Whitley

(2010) 50 Cal.4th 1206, 1213.) “However, de novo review of such a

trial court order is warranted where the determination of whether the

criteria for an award of attorney fees and costs in this context have been

satisfied amounts to statutory construction and a question of law.”

(Ibid.) Here, the only question before this Court is whether the trial

court correctly interpreted the criteria for award of private attorney

general fees, and review is therefore de novo.

58

Page 70: Cross-Appellant Opening Brief in TriCity v. Sterling

C. Additional Statement of Facts Pertinent to Cross-Appeal

In addition to the full trial record, the trial court in deciding the

fee motion had before it some further facts presented by declaration.

Ms. Sterling is serving her third elected term as a member of the

Tri-City Healthcare District’s Board of Directors, representing

constituents in Vista, Carlsbad, and Oceanside. (3 RA 888 ¶ 3.)

The Board has passed a series of resolutions censuring Ms.

Sterling for purported violations of the Board’s Code of Conduct and

general misconduct, ultimately barring her from entering the main Board

meeting room during Board meetings for the rest of her term. (3 RA

888-889 ¶¶ 6-9, 3 RA 899-912 Exs. A-D.) Consequently, she is now

forced to “attend” the meetings sequestered in a remote conference

room. (3 RA 891-892, 894 ¶ ¶ 20, 31.)

For some time leading up to the Board’s February 24, 2011,

meeting, the Board majority has been planning to initiate restraining

order actions against Ms. Sterling. (2 RT 149:1-9, 152:10-14.) This is

a strategy that TCHD had previously used against Dr. John Young, a

thoracic surgeon at the hospital – a proceeding that TCHD CEO Larry

59

Page 71: Cross-Appellant Opening Brief in TriCity v. Sterling

Anderson had expected Ms. Sterling to attend. (1 RT 96:15-24.) Two11

“incidents” that occurred at the February 24 meeting became the pretext

for the previously-planned injunction actions.

The two incidents arose because of Ms. Sterling’s attempts to

enter the main Board meeting room. Specifically, the first incident

occurred because she attempted to enter the room to talk to her

constituents before the meeting started. (3 RA 889 ¶¶ 11-12.) The

second incident occurred when she attempted to enter the room at a

break between meetings, to report that the audiovisual equipment in her

remote location had been removed. (3 RA 889-890 ¶ 13-14.)

Citing the February 24, 2011 meeting as the impetus, TCHD

ambushed Ms. Sterling with the eight pre-planned injunction actions on

March 4, 2011, and obtained ex parte relief against her. (AA 1-255.) 12

Trial was set for three weeks later, on March 25. She would have faced

TCHD’s phalanx of attorneys undefended, except that The McMillan

The injunction actions against Dr. Young are the subject of11

consolidated appeal No. D059573, now pending before this Court.

The day prior, March 3, 2011, TCHD and Mr. Crooks also filed12

a civil lawsuit against Ms. Sterling seeking damages for the sameincidents. (2 AA 284-293.) Ms. Sterling prevailed on an Anti-SLAPPMotion to Strike certain claims in that lawsuit. TCHD appealed thatdecision and the related fee award, Case Nos. D060431 and D061265.

60

Page 72: Cross-Appellant Opening Brief in TriCity v. Sterling

Law Firm came forward to defend her, with only a minimal retainer

from an anonymous donor. (2 RA 818 ¶ 9.)

The result TCHD achieved through its contemplated steamroller

strategy against Ms. Sterling was a total defeat, which is the subject of

the primary appeal.

Still, the TCHD Board majority saw one last opportunity to turn

its defeat on the meritless injunction actions into a victory. It planned

to kick Ms. Sterling off the Board for missing a Board meeting on

March 29 – while she was in court to defend herself against the baseless

charges brought against her. (3 RA 891 ¶ 19.) To fend off this ploy, Ms.

Sterling’s counsel went back to court and obtained an order to the effect

that Ms. Sterling was required to be in court on the day of the March 29,

2011 Board meeting. (5 RT 15:7-10; 1 RA 599-600.)

Going forward, Ms. Sterling’s sequestration during Board

meetings greatly inhibits her ability to participate in the meetings and

perform her duties. (3 RA 892-895, 897 ¶ 22-37, 44-45.) At the Board

meetings, she continues to confront an extremely hostile environment

created by the other Board members. (3 RA 892-893, 896-898 ¶¶ 23-25,

43, 47-50.)

61

Page 73: Cross-Appellant Opening Brief in TriCity v. Sterling

III. ARGUMENT

A. Summary of Argument

The trial court incorrectly concluded that Ms. Sterling’s victory

over the injunction petitions did not benefit the public or merit private

attorney general fees because it did not free her from sequestration

during Board meetings and was not initiated by her. This is a

misunderstanding of the law. Ms. Sterling substantially benefitted the

public, at her own expense, by deflecting the efforts of the Board

majority to keep her from advocating on behalf of her constituents by

serving as a dissenting voice on the Board.

B. The Four Requirements of Section 1021.5

The trial court distilled section 1021.5 down to four requirements:

Respondent must . . . show:

(1) she was successful;

(2) the action has resulted in the enforcement of animportant right affecting the public interest;

(3) a significant benefit has been conferred on thegeneral public; and

(4) the necessity and financial burden of privateenforcement are such as to make the awardappropriate.

62

Page 74: Cross-Appellant Opening Brief in TriCity v. Sterling

(4 RA 1264.) These were the correct criteria for the court to consider.

(Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d

917, 935.)13

The trial court correctly recognized that Ms. Sterling was

successful, and therefore satisfied the first requirement. (4 RA 1264.)

However, it erred in concluding that she did not satisfy the other three

requirements. (Ibid.) These errors are examined below.

C. The Trial Court’s Narrow Analysis Did Not ProperlyIdentify the Rights under Attack in these Actions

With respect to the second and third criteria – enforcement of an

important right affecting the public interest, and a significant benefit

conferred on the general public – the trial court considered only one

question: whether defeating TCHD’s multiple injunction petitions

changed the status quo under which Ms. Sterling was forced to

participate in Board meetings from a separate room. Since Ms.

Sterling’s victory obviously did not change that – by definition, a

prevailing defendant maintains rather than alters the status quo – the

The statute actually includes a fifth requirement – that “such fees13

should not in the interest of justice be paid out of the recovery, if any.” Since there was no recovery to be had from defeating TCHD’sinjunction actions, it was appropriate not to include this requirement.(Woodland Hills Residents Assn., 23 Cal.3d at 935.)

63

Page 75: Cross-Appellant Opening Brief in TriCity v. Sterling

court incorrectly concluded that no important right was involved and no

significant benefit conferred.

The court’s analysis represents a misunderstanding of both the

public interest that has been served by the successful defense of Ms.

Sterling and the extent to which Ms. Sterling’s victory enhanced that

public interest. The whole point of these injunction actions was not to

determine whether Ms. Sterling has to sit in a separate room during

Board meetings – that will have to be addressed in other legal

proceedings. The point of these injunction actions was to keep Ms.

Sterling from representing her constituents at all. The frivolous nature

of the “violence”claims made against Ms. Sterling – repeated here in the

primary appeal – speaks eloquently to TCHD’s real purpose in seeking

to have her enjoined.

Ms. Sterling is an elected official who has been chosen by the

electorate three times to serve on the Tri-City Healthcare District Board

of Directors – most recently by 33,860 voters. (3 RA 888 ¶ 3.) In this

role, she represents constituents in Vista, Carlsbad, and Oceanside,

California. (Ibid.)

These proceedings have dramatically demonstrated a serious

political rift on the TCHD Board. The majority is totally at odds with

64

Page 76: Cross-Appellant Opening Brief in TriCity v. Sterling

Ms. Sterling and is trying hard both to silence her and to eliminate her

from the Board. These injunction actions are the latest and most

ambitious, but far from the first or only, such attempt to keep her from

doing what she was elected to do.

Certainly, an important manifestation of these efforts is the action

of a majority of Board members requiring Ms. Sterling to be confined

to a separate room during Board meetings, so that she can view the

proceedings only through video transmission and participate in them

only through conference telephone. (3 RA 888-889 ¶¶ 7-9.) These

arrangements have greatly crippled her ability to do her job. The

electronic transmissions are poor and unreliable, the paperwork she is

sent is incomplete, her comments and protests are frequently ignored,

and she is not even allowed to interact with her constituents. (3 RA

889-890, 894-897 ¶¶ 13, 32-45.)

However, exclusion from the meeting room is just one symptom

of the problem that Ms. Sterling had to fight in these actions, and not the

problem itself. These injunction actions, like the sequestering, were a

means to an end: keeping Ms. Sterling from functioning as a Board

member, and ultimately kicking her off the Board.

65

Page 77: Cross-Appellant Opening Brief in TriCity v. Sterling

In the longer term, the Board majority and hospital administration

have been working conscientiously to drive Ms. Sterling from the

Board. At the April 28, 2011 Board meeting, TCHD CEO Larry

Anderson publicly accused Ms. Sterling of a criminal breach of

confidentiality, but refused to disclose to her any of the purported

evidence in support of the charge. (3 RA 897 ¶ 47.) On May 26, 2011,

the Board voted to eliminate Ms. Sterling from elected office and to file

criminal charges against her on the basis of these allegations. (3 RA 898

¶ 50.)

Even after the trial court denied all of its injunction petitions in

the present case, TCHD tried hard to use these proceedings to rid itself

of Ms. Sterling. After its eight petitions utterly failed, the chairwoman

of the Board publicly accused Ms. Sterling of bribing the trial judge,

telling her in a public meeting: “It’s unfortunate you may have paid

Judge Mills off beforehand.” (3 RA 898, 993 ¶ 49, Ex. N (124:1-2).)

She then told Ms. Sterling: “I agree with [Board member] Charlene

Anderson, you need to resign.” (3 RA 993 Ex. N (124:19-29).)

Even more egregiously, having dragged Ms. Sterling into court to

defend what proved to be frivolous accusations of violence, TCHD then

tried to kick her off the Board on the ground that she missed a Board

66

Page 78: Cross-Appellant Opening Brief in TriCity v. Sterling

meeting while she was in court defending herself. (3 RA 891 ¶ 19; 1 RA

595-597 (E-mail from TCHD CEO Larry Anderson claiming “‘[Ms.

Sterling’s] term has expired’ according to Healthcare District Law. Dan

stein will cite the operative provision to you. Therefore, if the Board

declares a vacancy by Resolution, that vacancy can be filled...”).) This

required Ms. Sterling’s counsel to go back into court to secure an order

from the trial judge to the effect that Ms. Sterling was required to be in

court on the day of the March 29, 2011 Board meeting. (5 RT 15:7-10.)

Predictably, TCHD opposed, on the ground that Ms. Sterling’s counsel

was seeking “some form of paperwork that he can use in the next court

action to use to argue that this was basically an excused absence.”

(5 RT 16:12-15.) The trial court found TCHD’s opposition to be

“absurd.” (5 RT 18:1.)

In the end, though, the obvious purpose of these eight overblown

actions was to torpedo Ms. Sterling’s political career. A victory for

TCHD in even one of its cases would have resulted in a public decree of

the trial court that Ms. Sterling had perpetrated, and apparently

threatened to perpetrate again, “unlawful violence or a credible threat of

violence.” (Code Civ. Proc. § 527.8.) This is about as close as one can

come to being designated a criminal without undergoing criminal

67

Page 79: Cross-Appellant Opening Brief in TriCity v. Sterling

prosecution (and without entitlement to defense by a public attorney).

It is difficult to see how Ms. Sterling could ever meet with her

constituents – let alone get re-elected – once the public had it on the

word of the court that she committed or threatened to commit violence

on others.

Had TCHD succeeded in obtaining even one of the injunctions it

sought here, it would have made major strides in its efforts to eliminate

Ms. Sterling as a dissenting voice. As things stand now, before and after

the trial, TCHD is inhibiting her ability to participate in board meetings.

However, the requested injunctions would have gone much further –

they would have prohibited Ms. Sterling from making contact with any

of the petitioners in any way, and from getting within 100 yards of

TCHD property, other than to seek emergency medical care or to attend

the Board meetings in her isolated sequestration room. (1 AA 5, 26, 46,

67, 104, 125, 147, and 184.) Thus, if TCHD had been successful at trial,

Ms. Sterling would have been absolutely prohibited from speaking to or

getting anywhere near eight directors, executives, and/or employees of

the hospital. In effect, the trial court would have entered a stay-away

order barring her, under penalty of contempt, from getting close to the

hospital whose operations she has been elected to govern.

68

Page 80: Cross-Appellant Opening Brief in TriCity v. Sterling

Ms. Sterling is a public official who serves the interest of her

constituents. Indeed, there is no reason for her to want to get near to the

eight people on whose behalf TCHD brought these actions, or the

facilities in which they are ensconced, except to further the interests of

the public she represents. She is the public’s eyes, ears, and voice when

it comes to overseeing the hospital, which is supposed to be using the

public’s tax dollars to serve the public. (1 RA 606-607 ¶ 4; 611 ¶¶ 4-6.)

The entire goal of TCHD, thwarted by Ms. Sterling’s victory, was to

keep those eyes and ears and that voice away from the hospital’s

personnel and facilities.

D. Ms. Sterling’s Victories Enforced an Important RightAffecting the Public Interest

The sole reason the trial court gave for concluding that Ms.

Sterling’s victories did not enforce an important right affecting the

public interest was:

[S]he is still not permitted to enter the public meeting roomnow that the restraining-order requests have been denied. Thus, even after prevailing in this action, she is in the sameposition she occupied prior to the time this action wasbrought. An important right affecting the public interesthas not been vindicated.

4 RA 1265.) Although the fact that Ms. Sterling is not permitted to

enter the meeting room is important background information, that

69

Page 81: Cross-Appellant Opening Brief in TriCity v. Sterling

restraint was not adjudicated in these injunction cases. Ms. Sterling’s

victories enforced an important public right, not because of any effect

on her sequestration, but because it thwarted an attempt to keep her from

fulfilling responsibilities as an elected official.

A permanent restraining order obtained by any of the Petitioners

would have required Ms. Sterling to remain at least one hundred feet

away from the public meeting room, since all of the Petitioners regularly

attend Board meetings there. (3 RA 890-891 ¶ 16.) This restriction

would have prevented Ms. Sterling from exercising her freedom to

speak and assemble, interacting with her constituents, and deliberating

on issues of public importance with her fellow Board members. (See, 3

RA 889, 891 ¶ 10, 16; 2 RA 818 ¶ 8.) Also, if TCHD’s requests for

permanent restraining orders had been granted, a stigma would have

attached to Ms. Sterling, inhibiting her ability to seek re-election or to

advocate on behalf of her constituents. Her successful defense of this

action resulted in the enforcement of her right to serve the public, and

even more importantly, of her constituents’ right to be served by the

representative they selected in a democratic election. (See, 3 RA 888,

935 ¶ 3, Ex. K; 1 RA 606-607 ¶ 4; 1 RA 611 ¶ 4.)

70

Page 82: Cross-Appellant Opening Brief in TriCity v. Sterling

Ms. Sterling’s continued representation of her constituents, a

sizeable part of the population within the Tri-City Healthcare District,

is unquestionably a significant public benefit. “A fundamental principle

of our representative democracy is, in Hamilton’s words, ‘that the

people should choose whom they please to govern them.’ 2 Elliot’s

Debates 257.” (Powell v. McCormack (1969) 395 U.S. 486, 547.)

Silencing an elected official is tantamount to silencing his or her

constituents:

Legislators have an obligation to take positions oncontroversial political questions so that their constituentscan be fully informed by them, and be better able to assesstheir qualifications for office; also so they may berepresented in governmental debates by the person theyhave elected to represent them.

(Bond v. Floyd (1966) 385 U.S. 116, 136-37.) Consequently, an attempt

to expel an elected official on the basis of the positions she takes is a

violation of the free speech rights not only of the official, but of the

electorate. (Ibid.)

These concerns are particularly acute at the local board level. For

example, a member of a municipal board of education must be allowed

to sue for attempted removal on trumped-up criminal charges because:

the very structure of the community board system at issuein this case supposes a striving toward these democratic

71

Page 83: Cross-Appellant Opening Brief in TriCity v. Sterling

ends. Members are elected to provide additional voices –to oppose, critique, supplement, modify, and suggestpolicies – so that the Chancellor and the City Board canmore effectively deliver education to the students of NewYork City. That being so, . . . allowing the Chancellor toremove board members on political grounds, wouldundermine the very object of the position [plaintiff]occupies.

(Velez v. Levy (2d Cir. 2005) 401 F.3d 75, 97-98.) Thus, for example,

where a school committee member alleged that the chairperson of the

committee asked police officers to remove him from the meeting room

following a disagreement, the allegations if true demonstrated a

violation of “clearly established constitutional rights of free speech, to

represent his constituents, and to be free from unreasonable seizures.”

(Vacca v. Barletta (D. Mass. 1990) 753 F.Supp. 400, 404 aff’d, (1st Cir.

1991) 933 F.2d 31.)

Both constitutional and statutory rights are capable of qualifying

as “important” for purposes of the statute. (Robinson v. City of

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

discussed above, the right secured here was of constitutional dimension.

This in and of itself was enough to satisfy the statute: “The

determination that the public policy vindicated is one of constitutional

stature satisfies [section 1021.5’s] ‘important public right’ requirement.”

72

Page 84: Cross-Appellant Opening Brief in TriCity v. Sterling

(MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp.

1, 9.)

It has often been recognized that the protection of political and

free speech rights is precisely the type of “important right affecting the

public interest” that justifies an award of fees under section 1021.5. For

example, litigation that protected the right of political petitioning

merited a fee award under the statute because it “enforced the people’s

fundamental rights of free expression and petition,” and because “the

public policy vindicated is one of constitutional stature.” (Press v.

Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318; see also Wal-Mart Real

Estate Business Trust v. City Council of City of San Marcos (2005) 132

Cal.App.4th 614, 622 (litigation that allowed referendum to proceed

resulted in enforcement of important right affecting public interest);

Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39

Cal. App. 4th 1561, 1568 (free speech rights are included among those

“recognized as important right[s] affecting the public interest”); Hull v.

Rossi (1993) 13 Cal.App.4th 1763 (fees awarded for defeating attempts

to strike ballot pamphlet arguments); California Common Cause v.

Duffy (1987) 200 Cal.App.3d 730, 748-49 (enforcement of statute

against using public funds for political purposes an important public

73

Page 85: Cross-Appellant Opening Brief in TriCity v. Sterling

right because it is “a fundamental precept of this nation’s democratic

electoral process”).) Similarly, successfully defending against an action

that would have removed elected party committee members from office

“vindicated the important constitutional right of political parties and

their members to choose their leaders” and therefore merited fees.

(Wilson v. San Luis Obispo County Democratic Cent. Com. (2011) 192

Cal.App.4th 918, 926.)

In the end, the trial court concluded that “[a]n important right

affecting the public interest has not been vindicated” because, “even

after prevailing in this action, Ms. Sterling is in the same position she

occupied prior to the time this action was brought.” (4 RA 1265.) But

that is not the proper basis for comparison. By definition, a defendant

who defeats an action brought to place restrictions on her will be in the

same position at the end that she was in at the beginning. This does not

disqualify her from receiving public attorney general fees. (Wilson, 192

Cal.App.4th at 926 (party committee that successfully defended against

suit that would have terminated elected members entitled to fees for

vindicating important public right).)

The proper comparison is: would the public she serves have been

worse off if she had lost the proceeding? Here, unquestionably, the

74

Page 86: Cross-Appellant Opening Brief in TriCity v. Sterling

stay-away orders that TCHD sought, and the stigma they would have

imposed, would have deprived Ms. Sterling’s constituents of the

vigorous contrarian representation she provides them, and ultimately

almost certainly would have deprived them of the opportunity to be

represented by her at all. Ms. Sterling’s successful defense of these

actions thus vindicated an important right affecting the public interest.

E. Ms. Sterling’s Victories Conferred a Significant Benefiton the General Public

The trial court held that Ms. Sterling did not confer a significant

benefit on the general public for the same reason it held she did not

vindicate an important right – because after her victories TCHD

continued to exclude her from Board meetings:

[R]egardless of what happened with the restraining orders,she would continue to represent her constituents at theboard meetings via a remote location established byPetitioner. Thus, her defense of the restraining orderrequests did not confer a benefit – significant orotherwise – on the general public or a large class of`persons.

(4 RA 1265.)

But again, the benefit incurred was not the lifting of the past

restrictions, it was avoidance of the far more draconian future

restrictions that TCHD sought to have the trial court impose, thereby

75

Page 87: Cross-Appellant Opening Brief in TriCity v. Sterling

limiting the political rights of Ms. Sterling and her constituents. A

significant benefit within the meaning of section 1021.5 is conferred

whenever the claimant’s victory advances or preserves “strong public

policies.” (County of San Luis Obispo v. Abalone Alliance (1986) 178

Cal.App.3d 848, 867, quoting Rich v. City of Benicia (1979) 98

Cal.App.3d 428, 433.) By failing to appreciate the nature of the benefit,

the trial court failed to appreciate that it provided significant protection

to a sizable portion of the public.

Preliminarily, it must be recognized that Ms. Sterling had nothing

to gain personally from defeating the injunctions. She has no reason to

be near the hospital or its officials or board members other than to

represent her constituents. Her remuneration for doing so is

inconsequential – she receives a $100 stipend for each Board meeting

she attends, up to $500 a month. (3 RA 888 ¶ 5, 3 RT 449:16-19.) And

the board has already acted to deny her the minimal benefits that come

with the position. (3 RA 888-889 ¶¶ 8-9, 3 RT 450:1-11, 451:11-16.)

In other words, Ms. Sterling’s personal interest in this litigation

was completely out of proportion from her cost of defending it. This in

and of itself is enough to establish substantial benefit. “This element is

met if the cost of the claimant’s legal victory transcends his personal

76

Page 88: Cross-Appellant Opening Brief in TriCity v. Sterling

interest – that is, when the burden of the litigation was disproportionate

to the plaintiff’s individual stake in the matter.” (Monterey/Santa Cruz

County Bldg. and Const. Trades Council v. Cypress Marina Heights LP

(2011) 191 Cal.App.4th 1500, 1523, quoting Roybal v. Governing Bd.

of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143,

1151.)

The benefit conferred by the result of a lawsuit cannot be assessed

simply by looking at the final judgment. “The significance of the benefit

conferred is determined from a realistic assessment of all the relevant

surrounding circumstances.” (Bell v. Vista Unified School Dist. (2000)

82 Cal.App.4th 672, 690.) Here, Ms. Sterling continued her

representation of her constituents in governance of their local publicly-

owned hospital, representation that the requested injunctions would have

severely impacted. (See, 3 RA 888, 935 ¶ 3, Ex. K; 1 RA 606-607 ¶ 4;

1 RA 611 ¶ 4.) This more than satisfies the significant benefit prong.

For example, in Wilson, 192 Cal.App.4th 918, defendant by its

victory vindicated the constitutional right of political parties and their

members to choose their leaders. (Id. at 926.) “This vindication

conferred a significant benefit on a large class of persons belonging to

77

Page 89: Cross-Appellant Opening Brief in TriCity v. Sterling

political parties,” and therefore merited fees under section 1021.5. (Ibid.)

Additionally, the requested injunctions, if granted, would have

both backstopped and expanded the improper restrictions already in

effect.

First, as to backstopping the existing restraints, TCHD’s Board’s

limitations on Ms. Sterling’s participation in board meetings remain the

subject of other proceedings. (2 RA 818 ¶ 8; 5 RT 3:7-12.) This does14

not mean that Ms. Sterling did not secure an important right in the

present case; it means that Ms. Sterling’s victory here has preserved the

viability of her position in the other proceedings. Had TCHD obtained

the restraining orders it was seeking here, Ms. Sterling would have been

forbidden to get anywhere near the Board meetings, and TCHD would

have been trumpeting in the other proceedings that her position had

become moot.

In making its decision on the injunction petitions, the trial court14

observed:

It is important to note that for the purpose of this hearingthe court assumed the validity of the “exclusion orders” orsanctions by the board. Whether or not they are actuallyvalid is not something that . . . I need to decide, and thatissue may be decided in the future at another type ofhearing.

(5 RT 3:7-12.)

78

Page 90: Cross-Appellant Opening Brief in TriCity v. Sterling

Certainly, Ms. Sterling will be in an even better position to serve

the public interest after she has succeeded elsewhere in having the

remaining restraints on her participation lifted. But we can be certain,

when that day arrives, that TCHD will not be volunteering to reimburse

her in some other proceeding for the considerable expense it put her to

here.

The fee hearing in the court below was the time and place for

TCHD to face the consequences of trying, and failing, to keep Ms.

Sterling from doing her job through its meritless demands for eight

restraining orders. By focusing on the non-issue of whether Ms.

Sterling’s sequestration had been terminated, the trial court failed to

address the substantial benefit element of private attorney general fees.

F. The Necessity and Financial Burden of PrivateEnforcement Made a Fee Award Appropriate

Finally, the trial court concluded that Ms. Sterling failed to satisfy

the “necessity and financial burden of private enforcement are such as

to make the award appropriate” criterion, solely because she was a

defendant instead of a plaintiff. The trial court seemed to believe,

incorrectly, that defensive victories cannot satisfy this requirement. It

said:

79

Page 91: Cross-Appellant Opening Brief in TriCity v. Sterling

This factor has no application here. Respondent did notbring this suit to “guard the guardians.” She was sued in anattempt to keep her from making contact with Districtemployees. This is not a case in which “privateenforcement” is at issue.

(4 RA 1265.)

Under the court’s reading of the statute, it would be impossible

for a defendant to receive fees under section 1021.5. Defendants do not

bring suits, and in particular, defendants do not bring suits to “guard the

guardians.”

This is simply a misunderstanding of the law. Defendants can be

and often are awarded fees under section 1021.5, because defense of a

suit, particularly defense of a suit brought by the government, can result

in a substantial public benefit. The circumstances include:

• successfully defending against a mandate action that would have

precluded or delayed a referendum to block commercial

development (Wal-Mart Real Estate Business Trust, 132

Cal.App.4th at 622.)

• successfully defending against a mandate action that would have

struck statements from a ballot pamphlet (Hull, 13 Cal.App.4th at

1768);

80

Page 92: Cross-Appellant Opening Brief in TriCity v. Sterling

• successfully defending against a validation action to determine

whether an assessment scheme and the issuance of bonds were

authorized (City of Sacramento v. Drew (1989) 207 Cal.App.3d

1287, 1302);

• successfully defending against a tort action for acts of civil

disobedience protesting a proposed nuclear power plant (County

of San Luis Obispo v. Abalone Alliance, 178 Cal.App.3d at 869).

Each of these cases represents “private enforcement” in the sense

that plaintiff tried to use the courts to block the public’s exercise of its

political will, and a private party beat back the effort. That is precisely

what happened here. TCHD tried to thwart the choice of thirty-four

thousand voters as to who would stand up to the TCHD administration

and Board majority for them, and nobody but Ms. Sterling was in a

position to fight back.

Indeed, the problem here is that the government itself was

expending considerable public resources to thwart the democratic

process. This left Ms. Sterling, standing alone, to shoulder the burden

of defending the right of her constituents to be heard. At the end of the

trial, the court noted:

81

Page 93: Cross-Appellant Opening Brief in TriCity v. Sterling

The board and the C.E.O. have taken many actionsagainst Ms. Sterling. This includes sanctions, loss ofmedical and insurance benefits, exclusion from Boardmeetings, a lawsuit, referring criminal charges to thedistrict attorney’s office, and these restraining orders. Thetaxpayers have funded the Board in all these actions. AndI note as a side note that there were three lawyers here at alltimes for the Board.

Ms. Sterling is apparently using her own resources,and these proceedings are obviously very expensive to allparties.

(5 RT 4:18-23.) Thus, in a very real sense, Ms. Sterling was called upon

in this case to “guard the guardians,” and should in all justice be

compensated for mounting private enforcement when public

enforcement was unavailable – because in fact the public entity was the

opposing party.

A proper assessment of the necessity and financial burden

requirement “examines two issues: whether private enforcement was

necessary and whether the financial burden of private enforcement

warrants subsidizing the successful party’s attorneys.”

(Conservatorship of Whitley, 50 Cal.4th at 1214.) Ms. Sterling’s fee

application satisfied the necessity and financial burden criterion with

respect to both.

82

Page 94: Cross-Appellant Opening Brief in TriCity v. Sterling

As to the first issue, private action is necessary where the party

claiming fees is pitted against a governmental agency, or where no

governmental agency stands ready to vindicate the public rights the

claimant defends. (Conservatorship of Whitley, 50 Cal.4th at 1214;

Woodland Hills, 23 Cal.3d at 941.) The necessity of private

enforcement “has long been understood to mean simply that public

enforcement is not available, or not sufficiently available.”

(Conservatorship of Whitley, 50 Cal.4th at 1217; Wilson, 192

Cal.App.4th at 926.) Here, Ms. Sterling was sued by a governmental

agency, the Tri-City Healthcare District, and no governmental agency

came forward to defend her; private action was therefore necessary.

As to the second issue, the financial burden of private action

merits a fee award “when the cost of the claimant’s legal victory

transcends his personal interest, that is, when the necessity for pursuing

the lawsuit placed a burden on the plaintiff out of proportion to his

individual stake in the matter.” (Conservatorship of Whitley, 50 Cal.4th

at 1215; Woodland Hills, 23 Cal.3d at 941.) A fee award “will be

appropriate except where the expected value of the litigant’s own

monetary award exceeds by a substantial margin the actual litigation

costs.” (Conservatorship of Whitley, 50 Cal.4th at 1216; Wilson, 192

83

Page 95: Cross-Appellant Opening Brief in TriCity v. Sterling

Cal.App.4th at 926-27.) Here, Ms. Sterling’s monetary award was zero,

and her litigation costs were well over $100,000. (2 RA 824-825 ¶ 33.)

Again, the cost of defending these lawsuits was totally out of proportion

to Ms. Sterling’s personal stake – the financial rewards to her of serving

in her elected position are de minimis, whereas the cost of defending

against eight expedited petitions for permanent injunction was

substantial. The litigation was a significant financial burden.

The fact that Ms. Sterling might also have had a personal desire

to serve out her term in elected office without the impediment of the

injunctions TCHD sought is of no moment in this analysis. “[A]

litigant’s personal nonpecuniary motives may not be used to disqualify

that litigant from obtaining fees under Code of Civil Procedure section

1021.5.” (Conservatorship of Whitley, 50 Cal.4th at 1211; Wilson, 192

Cal.App.4th at 927.) The purpose of the statute is not to compensate

only those litigants who have altruistic or lofty motives, but rather to

compensate all litigants and attorneys who step forward to engage in

public interest litigation when there are insufficient financial incentives

to justify the litigation in economic terms. (Ibid.) That is what Ms.

Sterling did, and that is why she merits a fee award.

84

Page 96: Cross-Appellant Opening Brief in TriCity v. Sterling

IV. CONCLUSION

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

private attorney general fee award, because it failed to appreciate what

is required to satisfy the criteria of the statute. This was an error of law

that this Court must correct.

DATED: April 25, 2012THE MCMILLAN LAW FIRM, APC

Scott A. McMillan, SBN 212506Evan Kalooky

SPIEGEL LIAO & KAGAY, LLP

By______________________Charles M. KagayAttorneys forRespondent/Cross-Appellant

85

Page 97: Cross-Appellant Opening Brief in TriCity v. Sterling

CERTIFICATE OF WORD COUNT

(California Rules of Court, rule 8.204(c)(1))

The text of this brief consists of 17,108 words as counted by the

Corel WordPerfect version X4 word-processing program used to

generate the brief.

DATE: April 25, 2012

_______________________________Charles M. KagayAttorney forRespondent/Cross-Appellant

86

Page 98: Cross-Appellant Opening Brief in TriCity v. Sterling

CERTIFICATE OF SERVICE

I, Scott A. McMillan, declare:I am employed in the State of California and over the age of

eighteen years, and not a party to the within action; my business addressis 4670 Nebo Drive, Suite 200, La Mesa, California 91941. On April25, 2012, I served the following documents:

1. RESPONDENT/CROSS-APPELLANT’S BRIEF

[X] as for those served by mail as identified in the service list, by

placing the document(s) listed above in a sealed envelope with

postage thereon fully prepaid, in the United States mail at San

Diego County, California addressed as set forth below:

SEE SERVICE LIST

I am readily familiar with the firm’s practice of collection andprocessing correspondence for mailing. Under that practice it would bedeposited with the U.S. Postal Service on that same day with postagethereon fully prepaid in the ordinary course of business.

I declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing is true and correct. Executed on April 25,2012, at the City of La Mesa, County of San Diego, California.

__________________________Scott A. McMillan

D059810

Page 99: Cross-Appellant Opening Brief in TriCity v. Sterling

SERVICE LIST

Charles Marriott KagaySpiegel Liao & Kagay LLP388 Market St Ste 900San Francisco, CA 94111-5311

Attorney for Respondent andAppellantKathleen Sterling (By Mail)

Jeremy Brooks RosenHorvitz & Levy LLP15760 Ventura Blvd 18th FloorEncino, CA 91436-3006

Attorneys for Petitioners(By Mail)

Evelyn F HeidelbergProcopio, Cory, Hargreaves &Savitch, LLP525 B Street, Suite 2200San Diego, CA 92101

Attorneys for Petitioners(By Mail)

Hon. Richard E. MillsSan Diego County Superior CourtNorth County Regional Center325 South MelroseVista, CA 92081

Trial JudgeCase No. 37-2011-00052069

Clerk, Supreme Court ofCalifornia350 McAllister Street, Room 1295San Francisco, CA 94102

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

D059810

Page 100: Cross-Appellant Opening Brief in TriCity v. Sterling
Page 101: Cross-Appellant Opening Brief in TriCity v. Sterling
Page 102: Cross-Appellant Opening Brief in TriCity v. Sterling