Thursday, January 16, 2014
State Supreme Court Denies Publication of Ruling in Workplace Violence Case Brought by AOC
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday denied publication of a First District Court of Appeal ruling that overturned a workplace violence restraining order obtained by the Administrative Office of the Courts on behalf of a commissioner who had ruled against the defendant in a child support case.
The justices, at their weekly conference in San Francisco, unanimously denied Norman Valdez Jr.’s petition for publication of the Oct. 25 ruling by Div. One. The panel had held that now-retired Sonoma Superior Court Judge Mark Tansil, who heard the case on assignment to Lake Superior Court, whose judges all recused themselves, exceeded his authority by conducting the hearing by telephone without Valdez’s consent.
Valdez is an Iraq War veteran who has been diagnosed with post-traumatic stress disorder and had a long-running child support case before Lake Superior Court Commissioner Vincent Lechowick, who is a retired Mendocino Superior Court judge.
The AOC obtained a workplace violence restraining order against Valdez in 2009, based on testimony that he threatened to kill the jurist, who had declined to reduce the payments. The order barred him from coming within 50 yards of Lechowick, and from coming within 50 yards of the courthouse other than for scheduled court proceedings.
The Court of Appeal upheld the order in an unpublished 2010 opinion. It said the AOC’s evidence as to the need for the order was sufficient to overcome Valdez’s claims that he did not make a credible threat and that he posed no harm to the commissioner because he was undergoing treatment for PTSD.
As the three-year protective period was coming to a close, the AOC moved for an extension. Tansil, who issued the original restraining order, was again assigned to the case and conducted the hearing by phone.
Valdez, who did not know the judge and opposing counsel would not be physically present until he arrived at the courthouse, objected to the telephonic hearing. He said he had witnesses he wanted to call and that he did not think an evidentiary hearing could be held by phone.
The judge replied that he had a trial that day in Sonoma, that he could not take the time to drive to Lake County, and that there was no need to take witness testimony. He heard argument, took the case under submission, and subsequently granted the order.
Justice Sandra Margulies, writing for the Court of Appeal, said the judge erred because California law allows parties, but not judges, to appear telephonically in some types of civil proceedings.
Valdez, she went on to say, had the right to present testimony and have the judge assess his credibility at a live proceeding. She noted that the only evidence offered to support the AOC’s position that Valdez remained a threat was “double or triple hearsay” to the effect that he had gone to Mendocino County to look at the file of Lechowick’s divorce case.
Valdez denied having done so, saying his wife had gone there to collect evidence in support of a complaint against Lechowick that she intended to file with the Commission on Judicial Performance.
“While we are not prepared to say that a full-blown evidentiary hearing is always required in contested proceedings under [the workplace violence statute], we believe the right of the parties affected by the protective order to appear before the court, either personally or through counsel, is so fundamental that it cannot be abridged by a court‘s unilateral decision to hear the matter by telephone,” the justice wrote. “We will therefore remand the matter to the trial court for a proceeding in which both parties have the right to personally appear before the court.”
In other conference action, the justices denied review of an admitted schizophrenic’s claim that the television program “Burn Notice” was based on a memoir he had written, and that the makers of the series had misappropriated his likeness.
Michael Terry claimed that he wrote a “memoir” entitled “The Setup: Memoir of an NSA Black Operation,” and that Fox Television Studios and creator Matt Nix used stories from his book in making “Burn Notice.” The series, which ended a seven-year run last September, depicted a former covert operative’s efforts to learn why he had been “burned”—separated from service and left adrift without money, work history, or social support.
Terry, who represented himself, admitted he was uncertain as to whether he had actually experienced the events he wrote about in “The Setup,” but said they seemed real to him.
Nix declared that he had never met Terry, and had never read or been told about “The Setup.” The defense also offered evidence that the pilot was completed in 2006, before Terry claimed to have shopped his memoir to literary agents.
Presiding Justice Tricia Bigelow, writing for the Court of Appeal’s Div. Eight, agreed with Los Angeles Superior Court Judge Holly Kendig that the complaint was subject to a motion to strike under the anti-SLAPP law.
In an unpublished opinion, she cited Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318. The Court of Appeal held that the plaintiff—who was a childhood friend of the writer of the film “The Sandlot,” and who had certain characteristics in common with one of the characters in the film, including a similar name—did not have a triable case of misappropriation of identity, invasion of privacy, negligence, or defamation.
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