SPRINGMANN, District Judge.
After obtaining a $124 million judgment against Peter Rogan (Rogan), Dexia Crédit Local (Dexia) instituted supplemental proceedings to locate Rogan's assets and satisfy its judgment. In the course of supplemental proceedings, Dexia requested the turnover of assets held in trusts that Rogan had established, including trusts in the names of each of his three adult children, Robert, Brian, and Sara (the Rogan Children). After the district court froze the trust assets in the course of preliminary proceedings, the Rogan Children intervened in the supplementary proceedings. The case advanced to a bench trial, and the district court concluded that the trust assets actually belonged to and were controlled by Rogan. The court entered a final judgment ordering the turnover to Dexia of nearly all the assets of the Rogan Children's trusts, and terminating the Rogan Children's interests in those trusts. The Rogan Children appealed. Finding that none of the issues raised on appeal requires reversal, we affirm the decision below.
I. BACKGROUND
A. The Underlying Lawsuit and Judgment
This case has its genesis in the Medicare and Medicaid fraud scheme that Rogan perpetrated through Edgewater Medical Center (EMC), a hospital on Chicago's north side, from at least 1993 to 2001. See United States v. Rogan, 459 F.Supp.2d 692 (N.D.Ill. 2006) (Rogan I), aff'd United States v. Rogan, 517 F.3d 449 (7th Cir. 2008). In 1989, an entity that Rogan formed and controlled purchased EMC. The Rogan-controlled entity managed and administered EMC, and Rogan served as EMC's chief executive officer.
In 1994, EMC was sold to Northside Operating Company. To finance the purchase, Rogan caused the Illinois Health Facilities Authority to issue approximately $41 million in bonds. Although he had sold EMC, Rogan retained control of the hospital after the sale through a series of transactions, and he then caused EMC to enter into management contracts with two entities that he also controlled, Braddock Management, L.P. and Bainbridge Management, Inc. In 1997, Rogan arranged to refinance the bond debt, and to this end, in June 1998, he secured a letter of credit from Dexia guaranteeing EMC's repayment of the bonds. Eventually EMC's fraud was discovered, and the government stopped Medicare and Medicaid payments to EMC. This caused financial distress to EMC and, eventually, required Dexia to pay $55 million on EMC's behalf to satisfy obligations to bondholders. Dexia was unable to obtain reimbursement from EMC.
In November 2002, Dexia sued Rogan and his management company partners for fraud, conspiracy, and other torts. Dexia alleged that, during the due diligence process that led to its issuance of the letter of credit and after Dexia issued the letter of credit, Rogan defrauded Dexia by concealing that a significant portion of EMC's revenue was obtained through Medicare and Medicaid fraud. Rogan vigorously defended against the lawsuit for numerous years, but then moved to Canada and abandoned his defense. In May 2007, Dexia obtained a default judgment against Rogan and his partner companies for $124 million.
B. The Government's False Claims Act Suit
In 2002, the federal government instituted litigation against Rogan under the federal False Claims Act (FCA), 31 U.S.C. §§ 3729- 3733, for the submission of false Medicare and Medicaid claims for patients referred to EMC. In that case, the district court found that Rogan conspired with another EMC officer and physicians to pay kickbacks and other improper benefits to the physicians in return for patient referrals. These referrals resulted in substantial profits for Rogan. See Rogan I, 459 F.Supp.2d at 700. Although the government's lawsuit focused on particular false claims submitted from 1995 through 2000, the district court found that "[t]he conspiracy was evident in the early 1990s." Id. The court also concluded that the conspiracy began (albeit on an apparently smaller scale) at least as early as 1993. See id. (findings related to dealings between Roger Ehmen and Dr. Ravi Barnabas); id. at 722 (findings related to Dr. Barnabas). The court concluded that the government proved that, from 1995 through 2000, Rogan caused EMC to submit over $19 million in false claims to Medicare and Medicaid. Id. at 727.
The other six participants in the fraud were charged criminally and pleaded guilty. The theory advanced by the government in the False Claims Act civil action was that Rogan conspired with the six indicted persons to defraud the United States.
C. The Rogan Children Trusts
In 1992, Rogan and his wife, Judith, set up three trusts in Florida for the benefit of their children (the Domestic Trusts). The Rogan Children are the only named beneficiaries of the Domestic Trusts. A 10% stock interest in EMC was the initial corpus for each of the Domestic Trusts. After EMC was sold in August 1994, the Domestic Trusts received money in exchange for the EMC stock they held. The Domestic Trusts also owned entities that, in turn, owned the management companies through which Rogan continued to operate EMC following its sale. During the period when Rogan operated EMC through these entities — from 1994 through 1997 — the Domestic Trusts received millions of dollars in distributions from the entities. Fredrick Cuppy, who also served as Rogan's lawyer, was the trustee. He was later removed as trustee by the district court as part of the supplemental proceedings.
In June 1997, Rogan formed three additional trusts for his children under Belizean law (Belizean Trusts and collectively with the Domestic Trusts, the Trusts or Rogan Children Trusts). He funded the Belizean Trusts with interests in several of his companies. A company owned by Cuppy served as the trustee.
D. Supplemental Proceedings
To collect its May 2007 judgment, Dexia served Peter Rogan and Judith Rogan with citations to discover assets. See Fed.R.Civ.P. 69; 735 ILCS § 5/2-1402. On September 26, 2007, Dexia initiated supplementary proceedings against the Rogan Children Trusts by serving a citation on Cuppy, the trustee of those Trusts. In February 2009, Dexia served citations upon the individual children.
As part of the proceedings, the district court granted various temporary restraining orders (TROs) to freeze assets. Before the court converted the TROs into preliminary injunctions, the Rogan Children moved to intervene for the purpose of protecting their claimed beneficial interests in the Trusts. The parties engaged in discovery related to the turnover proceedings, and the Rogan Children lodged various procedural and jurisdictional objections, none of which successfully ended the proceedings or removed the Trust assets from consideration.
During the course of ruling on the various challenges lodged by the Rogan Children, the district court judge discovered that two of the Defendants in Dexia's underlying lawsuit, Bainbridge Management, L.P. (Bainbridge LP) and Braddock Management, L.P. (Braddock LP), were citizens of both Illinois and Belize. This dual citizenship destroyed diversity jurisdiction, which does not exist where the party on one side of a case is foreign — Dexia is a French company — and the party on the other side is both domestic and foreign. See Salton, Inc. v. Philips Domestic Appliances Pers. Care B.V., 391 F.3d 871, 875 (7th Cir. 2004). The district court dismissed Bainbridge LP and Braddock LP pursuant to Federal Rule of Civil Procedure 21 as nondiverse, dispensable parties. The district court also discovered that the May 2007 default judgment, which had been issued as a final judgment, was not actually final because it did not dispose of claims against Bainbridge LP (which was in bankruptcy and subject to an automatic stay), and the district court had not otherwise made any findings pursuant to Federal Rule of Civil Procedure 54(b). The court then ruled that the effect of dismissing the dispensable parties, including the one that had been in bankruptcy, was to make the May 2007 default judgment against the remaining defendants, Rogan and Bainbridge Management, Inc. (distinct from Bainbridge LP), retroactively final as of May 2007.
The district court conducted a bench trial on Dexia's motion for turnover. On July 7, 2009, the court issued a 48-page opinion granting Dexia's motion for turnover of assets, including those in the Rogan Children's Trusts, with the exception of $30,000 ($10,000 from each Trust) that was gifted to the Trusts by an individual named Scott Gross. This relief was predicated upon the court's finding that the Trust assets actually belonged to Rogan. As alternative relief, the court imposed a constructive trust on the property held by the Trusts. Again, the court excluded the $30,000 that Dexia did not establish was the result of Rogan's fraudulent activities. This appeal followed.
II. ANALYSIS
A. Subject Matter Jurisdiction
The Rogan Children argue that the district court lacked and we lack subject matter jurisdiction over this case. They contend that Dexia has formed an "unincorporated association" with LaSalle Bank, an Illinois corporation, and that LaSalle's citizenship must be considered when determining whether the federal court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). They assert that, because some of the defendants are also Illinois citizens, Dexia's unincorporated association with an Illinois citizen destroys complete diversity of citizenship. The Rogan Children's claim that Dexia and LaSalle should be considered an unincorporated association is based on the following relationship: more than one year after Dexia issued EMC the letter of credit, LaSalle entered into a participation agreement with Dexia to assume a portion of Dexia's risk.
We must resolve a recognized issue of subject matter jurisdiction before any other action is taken on a case, United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 956 (7th Cir. 2003), and we review subject matter jurisdiction determinations de novo, Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999).
In the proceedings below, the district court determined that only Dexia, not LaSalle, was the real party in interest under Federal Rule of Civil Procedure 17. The district court reasoned that LaSalle's act of taking on part of the obligations with respect to the letter of credit did not transform it into a real party in interest with regard to Dexia's tort claims against Rogan. The Rogan Children do not challenge this finding on appeal. Instead, they assert that the finding under Rule 17 has no bearing on their jurisdictional argument and that the narrow issue on appeal is whether Dexia and LaSalle, by sharing the profits and losses under the letter of credit, were operating as an unincorporated association. Citing our holding in Indiana Gas Co. v. Home Insurance Co., 141 F.3d 314 (7th Cir. 1998), that all of the members belonging to a Lloyd's of London syndicate had to be considered for purposes of diversity jurisdiction, the Rogan Children criticize the district court for restricting its analysis to whether Dexia and LaSalle formed a joint venture or partnership, as opposed to some form of unincorporated association akin to a Lloyd's syndicate. Thus, the Rogan Children frame the issue as whether Dexia and LaSalle operated as an unincorporated association, and they leave unchallenged the trial court's determination that Dexia sued on its own behalf and is the real party in interest.
Despite arguing in their opening brief that the district court's determination regarding the real party in interest is not relevant to their claim on appeal, the Rogan Children themselves cannot avoid discussing it. In their reply brief, they argue that Dexia did not bring the suit on its own behalf because Dexia's judgment is for both its benefit and LaSalle's because LaSalle bore $20 million of the loss pursuant to the participation agreement. The district court properly addressed this when it reasoned that LaSalle suffered only a "trickle down" harm of Rogan's actions vis-à-vis Dexia, the party that suffered the direct injury. See CCC Info. Servs., Inc. v. Am. Salvage Pool Ass'n, 230 F.3d 342, 347 (7th Cir. 2000) (holding that the real party in interest, whose citizenship is relevant for purposes of determining diversity, is the party injured and not its members who felt the injury only through a trickle down effect).
It is true that when the question is "how the citizenship of [a] single artificial entity is to be determined," the citizenship of that entity is not determined using the real party to the controversy test. Carden v. Arkoma Assocs., 494 U.S. 185, 187 n. 1, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). But this principle does not help the Rogan Children unless Dexia was such an unconventional plaintiff, "that is, someone or something other than either a natural person suing in his own rather than a representative capacity, or a business corporation," Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998), and not a corporate entity. If Dexia is a corporate entity, the inquiry regarding its citizenship remains straightforward. "[A] corporation is a corporation is a corporation," Cote v. Wadel, 796 F.2d 981, 983 (7th Cir. 1986), and determining its citizenship is as simple as looking at the "State where it has been incorporated and of the State where it has its principal place of business," 28 U.S.C. § 1332(c)(1). As we explained in Society of Lloyd's v. Estate of McMurray, 274 F.3d 1133 (7th Cir. 2001), a lawsuit does not raise the subject matter jurisdiction problem that we addressed in Indiana Gas when a corporation is the named party:
[In
Indiana Gas], we held that complete diversity did not exist between the parties because the complaint named as defendants "Certain Underwriters at Lloyd's, London" and "Certain London Market Insurance Companies."
See [ 141 F.3d] at 316. Because these entities were not corporations, we treated them as partnerships for purposes of diversity jurisdiction, and since at least one Lloyd's Name was domiciled in the same state as the plaintiff, complete diversity did not exist.
See id. at 319. Here, the plaintiff is the Society of Lloyd's, a corporation incorporated under the laws of England, and there is no question that diversity jurisdiction exists.
Estate of McMurray, 274 F.3d at 1134 (citing
Indiana Gas, 141 F.3d at 316, 319). Likewise, Dexia, the entity that initiated the lawsuit to recover for fraud, conspiracy, and other related torts, is a corporation incorporated under the laws of France and has its principal place of business in France. And "the status of the named litigant governs — provided that the litigant is an entity rather than a name for an unincorporated association such as a partnership."
Downey v. State Farm Fire Cas. Co. 266 F.3d 675, 680 (7th Cir. 2001) (citing
Carden, 494 U.S. 185, 110 S.Ct. 1015;
Indiana Gas Co., 141 F.3d 314).
The Rogan Children cannot escape the conclusion that this case did not involve an "unconventional party" that should have prompted the district court to take heed of "a jurisdictional warning flag" in relation to that entity. Cosgrove, 150 F.3d at 731. The Rogan Children's claim that the district court should have entertained further notions that "Dexia Crédit Local" actually meant something akin to a Lloyd's of London syndicate or other form of unincorporated association is unfounded. Complete diversity of citizenship exists, and we affirm the district court's determination regarding subject matter jurisdiction.
B. Finality of Judgment
In Illinois, supplemental proceedings under § 2-1402 are not available to creditors "until after judgment capable of enforcement has first been entered in their favor." Marble Emporium, Inc. v. Vuksanovic, 339 Ill.App.3d 84, 273 Ill.Dec. 915, 790 N.E.2d 57, 62 (2003) (citing cases discussing § 2-1402); see also Ill. Sup.Ct. R. 277(a) ("A supplemental proceeding authorized by section 2-1402 of the Code of Civil Procedure may be commenced at any time with respect to a judgment which is subject to enforcement."); 735 ILCS 5/2-1402(a). The Rogan Children argue that, when Dexia issued citations to discover assets in the supplemental proceedings, it held a non-final judgment and that the citations were therefore invalid. They submit that although the district court entered a final judgment nunc pro tunc after dismissing nondiverse parties under Federal Rule of Civil Procedure 21, the remainder of the proceedings was void because no new citations based on the final judgment were issued.
The Rogan Children submit, without citation to the record, that the district court entered a final judgment nunc pro tunc. Our review of the record reveals that, on February 9, 2009, the district court dismissed Defendants Bainbridge LP and Braddock LP pursuant to Rule 21 and, in doing so, determined that the Rogan Children no longer had any basis to challenge the finality of the May 2007 judgment "due to the retroactive effect of the Rule 21 dismissals." (R. 100-01.) Perhaps this is what the Rogan Children meant by nunc pro tunc. In any event, it makes no difference to the analysis.
In this appeal, the Rogan Children do not dispute that the district court's dismissal of nondiverse parties was a proper exercise of its authority under Rule 21. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 n. 6, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 380 (7th Cir. 2000). We recently held, in a separate appeal filed by Judith Rogan challenging the district court's issuance of a preliminary injunction in these same supplementary proceedings, that "the district court properly dismissed the nondiverse parties under [Rule] 21 and preserved its jurisdiction." Dexia Credit Local v. Rogan, 602 F.3d 879, 883 (7th Cir. 2010).
On the claim that they do advance — that the dismissal of non-diverse parties was insufficient to retroactively render the May 2007 judgment final — we disagree. The Rogan Children make no attempt to explain what purpose would be served by requiring that the discovery citations be re-issued. Nor do they explain why it would be necessary. Rule 21 dismissals are retroactive, Newman-Green, 490 U.S. at 829, 109 S.Ct. 2218, and the complaint is read as if the dismissed party had never been included, LeBlwant him in the City. He told her that "[t]hey land on my roof every night. And they're trying to kill me." He specifically mentioned a particular officer who wanted to kill him and complained that the mayor was preventing him from attending meetings and voting. During the encounter appellant was combative, "very, very frustrated" and angry, and "kind of explosive at times." He was "like a time bomb." Following procedure, Abougudom marked the tires on appellant's car. Appellant responded by writing "pig" in ink on the driver's door of her City vehicle. Although he did not directly threaten Abougudom or anyone at the city clerk's office or city council, she nonetheless felt threatened and called for a police officer "roll-by."
Three days after Abougudom's warning notice, another parking control officer, Tracy Keifer, followed up on the vehicle. Seeing no chalk marks on the tires, she began marking them when appellant ran up behind her and began shouting angrily at her. Keifer warned him to back off, but appellant continued yelling at her. He said he had had Abougudom arrested after her recent visit, and he told Keifer that she was vandalizing and "graffitiing" his vehicle. He told her that the San Jose police department was already after him, and that police helicopters had crashed into his roof twice. Two different officers had frequently come to his house and had broken his windows, because he knew that they were murderers. He reported that the former mayor had fathered his own grandchildren and had murdered his first wife. Although appellant did not express any direct threats, Keifer felt threatened during the 30-minute encounter, and she still felt threatened by the time of trial.
Officer Timothy Gall conducted a traffic stop of appellant in 1995. Appellant refused to produce his driver's license, and when the officer stepped forward to arrest him, appellant struck the officer in the chest with clenched fingers, like "a martial arts palm strike." In the patrol car after being arrested, appellant was belligerent, using profanity and saying that the mayor and police were out to get him. Officer Gall considered placing appellant on a 72-hour hold, but finally determined that because he was restrained, appellant did not pose a danger to himself or others.
The hearing concluded on May 4, 2009, when 14 identical injunctions were issued. Each included a stay-away order, with specified exceptions to allow appellant to attend public city council meetings. Appellant filed a timely notice of appeal.
Other than for meetings, appellant was to stay 300 yards from the protected individuals and from city hall. Appellant was to enter city hall through specified entrances and be subject to search before entering the city council chambers. During the meetings he was to sit in a specific row and use a particular stairway. He also was not to file any document personally with the city clerk, but was required to mail it or have someone else deliver it for him.
Discussion
1. Section 527.8 and Free Speech
Section 527.8, the Workplace Violence Safety Act, enables an employer to seek an injunction to prevent violence or threatened violence against its employees. The statute provides, in relevant part: "Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer." (§ 527.8, subd. (a).)
Appellant points to subdivision (c) of section 527.8, which cautions that the statute "does not permit a court to issue a temporary restraining order or injunction prohibiting speech or other activities that are constitutionally protected, or otherwise protected by Section 527.3 or any other provision of law." In this case, he argues, the injunction violated his rights to free speech and petition under the First Amendment to the United States Constitution and article 1, sections 2 and 3, of the California Constitution.
For convenience we will adopt appellant's abbreviation of these constitutional citations as " First Amendment" references.
The First Amendment does not help appellant here. The right to free speech is not absolute or unlimited. ( Near v. Minnesota (1931) 283 U.S. 697, 708 [ 75 L.Ed. 1357, 51 S.Ct. 625]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 486 [ 101 Cal.Rptr.2d 470, 12 P.3d 720].) As our Supreme Court has explained, "`[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, "`communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs. . . .'" [Citations.]' . . . A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. [Citation.]" ( Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134 [ 87 Cal.Rptr.2d 132, 980 P.2d 846] ( Aguilar), quoting In re M.S. (1995) 10 Cal.4th 698, 710 [ 42 Cal.Rptr.2d 355, 896 P.2d 1365].) "As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. [Citation.]" ( In re M.S., supra, 10 Cal.4fh at p. 710.) "[O]nce a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited `prior restraint' of speech." ( Aguilar, supra, 21 Cal.4th at p. 140; see also USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 445-446 [ 4 Cal.Rptr.3d 54].)
Thus, it is clear that if the elements of section 527.8 are met by the expression of a credible threat of violence toward an employee, then that speech is not constitutionally protected and an injunction is appropriate. The relevant question for this court is whether the City proved the elements of the statute. If so, reliance on the First Amendment will be unavailing.
Appellant does not challenge the constitutionality of the statute itself.
2. Substantial Evidence
a. Credible Threat
Appellant contends that there was insufficient evidence that he made a credible threat to Pimentel or any other City employees. A "credible threat of violence" under section 527.8 is "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (§ 527.8, subd. (b)(2).) "[T]o obtain a permanent injunction under section 527.8, subdivision (f), a plaintiff must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will occur in the future." ( Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335 [ 85 Cal.Rptr.2d 86].) On appeal, however, we review an injunction issued under section 527.8 to determine whether the necessary factual findings are supported by substantial evidence. ( USS-Posco Industries v. Edwards, supra, 111 Cal.App.4th at p. 444.) Accordingly, we resolve all factual conflicts and questions of credibility in favor of the prevailing party, and draw all reasonable inferences in support of the trial court's findings. ( Ibid.)
Appellant argues that the findings of the trial court cannot be upheld because it "did not make a factual finding on the element of willfulness. . . . At no time did the court examine, factually, whether the statement was intended to be taken as a threat." Had the court undertaken this analysis, appellant believes, the injunction would not have been issued, because the evidence "proved that appellant specifically did not intend his statement to Pimentel to be a threat." He points to the following circumstances to support his factual challenge: The statement was "a rhetorical question, with no inclusion of specifics"; he did not suggest that consequences would follow if his "desires were not met" or otherwise attempt to coerce Pimentel; he is "known to be bombastic, to speak in grand language, and to use rhetorical flourishes," having used "graphic, loud, attention-grabbing speech" in city hall for 20 years; he answered "No" when Pimentel asked if he was threatening the city hall personnel; and no threatening behavior or language followed this incident.
The trial court looked to the testimony of Nora Pimentel and expressly determined that "she was clearly shaken" by appellant's reference to Charles Thornton in this context, and that "a reasonable person would have felt threatened by [appellant's] statement." Appellant, however, believes that the court went astray in placing weight on Pimentel's reaction. In his view, it makes no difference that Pimentel's fear was honest or reasonable, because he never made any statement "with the intention for it to be taken as a threat." Indeed, appellant spends considerable energy attempting to show that his statement was not a "true threat." He maintains that his rhetorical comparison of himself to Charles Thornton was not a "true threat," but at worst was only an ambiguous expression which must be analyzed by examining whether he had the specific intent that it be taken as a threat. Such an examination, he maintains, must take into account his clear statement that he did not intend to threaten anyone.
We agree with the City, however, that appellant's subjective intent was not required for his conduct to be deemed a credible threat. The present definition of "credible threat" in section 527.8 is the product of a 1998 amendment, which deleted the language of intent. Before the amendment, subdivision (b)(2) of the statute read: "`Credible threat of violence' is a knowing and willful statement or course of conduct which would cause a reasonable person to believe that he or she is under threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under threat of death or serious bodily injury, and which serves no legitimate purpose." (Italics added.) By eliminating the italicized (and awkwardly phrased) language, the Legislature unequivocally dispensed with the requirement that the defendant intend to cause the person to believe that he or she had been threatened with death or serious injury. It currently requires only a statement made knowingly and willfully, which would place a reasonable person in fear for his or her safety. (Cf. Kern County Water Agency v. Belridge Water Storage Dist. (1993) 18 Cal.App.4th 77, 86 [ 22 Cal.Rptr.2d 354] (5) ["When a statute is amended to delete an express provision, the presumption is that the Legislature intended to change the law."]; Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 231 [ 273 P.2d 5] [same].)
Appellant's analysis and the cases he cites do not help him. "A true threat occurs when a reasonable person would foresee that the threat would be interpreted as a serious expression of intention to inflict bodily harm." ( In re Steven S. (1994) 25 Cal.App.4th 598, 607 [ 31 Cal.Rptr.2d 644].) Contrary to appellant's assumption, whether the threat is conveyed by conduct or pure speech is irrelevant. In any event, as discussed above, the statute applicable in this case does not contain the element of specific intent to convey a threat to the affected person. The willfulness requirement addressed in In re M.S., supra, 10 Cal.4th at page 713, on which appellant relies, applied directly to the threat, whereas here only the statement must be made willfully, regardless of the intent behind it. Also distinguishable is People v. Carron (1995) 37 Cal.App.4th 1230 [ 44 Cal.Rptr.2d 328], where the statute under scrutiny, Penal Code section 646.9, expressly contained specific intent elements.
The opinion in In re M.S. examined Penal Code section 422.6, subdivision (a), which describes various forms of hate crimes, including "willfully" threatening a person. The court interpreted the statutory language to include a specific intent to interfere with the other person's legally protected rights. ( In re M.S., supra, 10 Cal.4th at p. 713.)
Appellant's assertion that the United States Supreme Court requires an intent that a statement "be received as a threat" is unconvincing in the circumstances presented here. Virginia v. Black (2003) 538 U.S. 343 [ 155 L.Ed.2d 535, 123 S.Ct. 1536], for example, involved a statute prohibiting cross burning "with the intent of intimidating any person or group of persons." (Va. Code, § 18.2-423.)
The high court upheld this statute except for the unconstitutional portion that allowed cross burning alone to be "prima facie evidence of an intent to intimidate a person or group of persons." That provision blurred the line between protected and unprotected speech and thus ran afoul of the First Amendment.
More apposite is Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 [ 29 Cal.Rptr.3d 521] ( Huntingdon). There the Fourth District, Division One, found that publications on a Web site constituted credible threats of violence within the meaning of both sections 527.6, subdivision (b)(2) and 527.8, subdivision (b)(2). Examining section 527.6, the harassment statute, the court stated, "`It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.'" ( 129 Cal.App.4th at p. 1256.) The court further observed that while Huntingdon Life Sciences, Inc., had no standing under section 527.6, it could seek relief for its employees under section 527.8. Because those two statutes were intended to provide the same relief, the same reasoning applied to both. Accordingly, the court held that Huntingdon Life Sciences, Inc., had demonstrated a probability of prevailing under not only section 527.6 but also section 527.8, thereby defeating the defendants' section 425.16 (anti-SLAPP (strategic lawsuit against public participation)) motion. ( 129 Cal.App.4th at pp. 1258-1259.)
In reaching its conclusion the Huntingdon court quoted a portion of an analogous case, Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002) 290 F.3d 1058. There the appellate court distinguished the statute before it in light of a challenge similar to appellant's: The defendants argued that a "subjective intent component of 18 U.S.C. section 248 required `evidence, albeit circumstantial or inferential in many cases, that the speaker actually intended to induce fear, intimidation, or terror; namely, that the speaker intended to threaten. If a person did not intend to threaten or intimidate (i.e., did not intend that his or her statement be understood as a threat), then the speech should not be considered to be a "true threat," unprotected by the First Amendment.'" (See id. at pp. 1075-1076.) The court instead adopted the "reasonable speaker" test: "`Whether a particular statement may properly be considered to be a threat is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.'" ( Id. at p. 1074; see also Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 259-260 [ 59 Cal.Rptr.3d 692] [defining "credible threat" under § 527.8 as "one that an employee reasonably believes will be carried out, so as to cause the employee to fear for his or her safety or that of his or her family"].)
Also noteworthy is USS-Posco Industries v. Edwards, supra, 111 Cal.App.4th 436. The defendant in that case invoked a similar defense: He "claimed he had not meant anything by his comments in the office, had not directed them to anyone in particular, and had only been joking." ( Id. at p. 441.) After an injunction was issued, he sought modification, declaring "that he had no history of violent conduct, and . . . that while he was well known as a `trash talker' he never took action and should not be taken seriously." ( Ibid.) The trial court rejected that defense and the First District affirmed.
Thus, based on the plain language of the statute before us and the reasoning of both analogous cases and those involving intent-based statutes, the trial court properly found that appellant had uttered a credible threat within the meaning of section 527.8. In its order the court clearly articulated the factual and legal basis of its conclusion, repeatedly acknowledging the importance of the factual context in deciding whether the test for a credible threat had been met and the likelihood of irreparable harm. As appellant's statement caused Pimentel and others to have a reasonable fear that appellant would harm City employees, the injunction was properly issued.
b. Pimentel's Fear
Appellant briefly asserts that insufficient evidence supported the finding that Pimentel "was in fear as a result of appellant's question to her." He questions her credibility by suggesting that she "did not act consistently with being in fear," because (a) she "did nothing more" after reporting it to authorities; (b) although "the act of testifying about her encounter with appellant was apparently traumatic," she also admitted that his comment made her angry, which "indicates her true feelings about appellant's rhetoric"; and (c) had she "truly been fearful, she could and would have sought a personal restraining order." Appellant's challenge ignores the standard of appellate review. It was for the trial court as fact finder to determine the credibility of Pimentel's testimony, including her explicit statement that she was afraid when appellant suggested that his only recourse was to take action like Charles Thornton in Missouri. In addition, Pimentel testified that she was afraid for the safety of the mayor and city council members as well as for her own. Substantial evidence clearly supported the trial court's finding that Pimentel experienced fear when appellant made his threat.
Relying on In re George T. (2004) 33 Cal.4th 620 [ 16 Cal.Rptr.3d 61, 93 P.3d 1007], appellant urges this court to reject Pimentel's perception of his ambiguous statements as a threat and instead to interpret them independently as nonthreatening. George T., however, is not determinative of the outcome here. Our Supreme Court in that case was examining the nature of a student's poem, which the juvenile court had regarded as a criminal threat under Penal Code section 422. While emphasizing the importance of independent review in the threats context, the high court examined not only the words of the poem but also circumstances surrounding its submission. The court observed that there was no history of animosity or conflict between the minor and the students receiving the poem, no threatening gestures or mannerisms accompanying the poem, and no conduct unequivocally indicating an immediate prospect that any threat would be carried out. ( 33 Cal.4th at p. 636.)
Here we are not examining an inherently ambiguous medium of artistic expression, and we cannot ignore the history of animosity from appellant toward City officials. In the circumstances presented here, appellant's statements met the prerequisites for an injunction under section 527.8, including the statutory element of a "credible threat of violence."
c. Future harm
Appellant finally challenges the sufficiency of the evidence that there was a likelihood of future harm. He points out that he "did not repeat any alarming conduct or make any threatening statement. . . to anyone" after the statement to Pimentel. As interpreted by the court in Scripps Health v. Marin, supra, 72 Cal.App.4th 324, section 527.8, subdivision (f), requires a finding of clear and convincing evidence "not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability [that] unlawful violence will occur in the future." ( Scripps Health, at p. 335.) Appellant compares his case to that of Marin, the Scripps defendant, because neither repeated his offending conduct. But the facts are not comparable. The injunction in Scripps arose from a tension-filled meeting between a hospital administrator and a patient's son. When the administrator insisted that they needed to discuss Marin's mother and stood in front of the door, blocking his exit from the meeting room, Marin pulled the door open, which hit the administrator and pushed her into the wall. After this single act of violence Marin agreed to stay away from the hospital, and his mother transferred her health insurance and thus was unlikely to return to the facility where her son's violent act occurred. Based on these facts, the appellate court found insufficient evidence that Marin would repeat any violent conduct against Scripps staff. (See also Russell v. Douvan (2003) 112 Cal.App.4th 399, 400-404 [ 5 Cal.Rptr.3d 137] [applying reasoning of Scripps to require probability of future harm for injunctions under § 527.6].)
Appellant, by contrast, continued to appear regularly at City Hall; and unlike Marin, he had a history of threatening conduct toward City employees. "`[C]ontext is critical in a true threats case and history can give meaning to the medium.'" ( Huntingdon, supra, 129 Cal.App.4th at p. 1250, quoting Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, supra, 290 F.3d at p. 1078.) The court did not err in concluding, based on all the facts presented at trial, that irreparable harm was reasonably likely to occur if the injunction were not issued.
3. Expert Evidence
The trial court admitted the expert testimony of Christine Zarate, a police officer trained in threat assessment, and Gregory Sancier, a Ph.D. clinical psychologist and police officer working as a hostage negotiator in the crisis management unit.
Appellant contends that the court erred by admitting Zarate's testimony. He emphasizes that Zarate "was unable to offer an opinion that appellant was likely to commit violence, or was going to continually threaten anyone at City Hall. The most the expert could say is that appellant was on the `pathway to violence,' and that the expert's `threat assessment' training did not enable her to predict whether he would be violent in the future." Zarate's testimony and the character evidence that supported her opinion "did nothing more than establish [that] appellant had a history of flamboyant speech and dramatic behavior in communicating with the city." Appellant asserts that the factors used to predict conduct did not indicate in this case that appellant "presents a likelihood of committing violent acts or credible threats of violence in the future. . . . Thus, the expert evidence and evidence of other behavior by appellant could not form the basis of a finding that appellant was likely to be harmful in the future if the injunction did not issue."
Though portrayed as challenge to the admissibility of Zarate's opinion, appellant's argument reads more like a challenge to the sufficiency of the evidence she supplied in her testimony. We find the evidence sufficient, however. Zarate reviewed police reports and interviewed many individuals who had had encounters with appellant, including Nora Pimentel, Officer Crooker, Alicia Johnson, Yvonne Abougudom, Judith Boes, Tracy Keifer, Timothy Gall, Mark Brogan, and Ted Trujillo. She also spoke with neighbors and family members of appellant. She tried to speak with appellant himself, but he "closed the door in [her] face." Zarate performed research on the events of the Kirkwood, Missouri shooting and events involving Timothy McVeigh, Jeffrey Dahmer, and Theodore Kaczynski, because he had made references to these individuals in his interactions with City employees, and identifying with mass murderers was a "high risk" factor in a threat assessment. Other risk factors included being "fixated" on city officials, "[a]pproaching a public official in an inappropriate manner," refusing to be searched, asserting that the police and other city officials were "out to get him," and being isolated in the community.
In his opening brief appellant did not assert any abuse of discretion in the admission of the expert testimony, nor a failure to follow Evidence Code section 803 or section 1101. In his reply brief appellant devotes more attention to the admission of the prior-acts evidence, citing Evidence Code section 1101 and mentioning Sancier's testimony as well as Zarate' s. These arguments are presented too late to be considered on appeal. ( Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [ 43 Cal.Rptr.3d 148].)
Zarate noted that both appellant and Charles Thornton "had very long histories of grievances with the city going back years. They both had claims against the city. They both had interest in running for city council unsuccessfully. They both owed money to the city. They both had [had] outbursts, uncontrollable outbursts in city council chambers. They both had inappropriate comments made to public officials." The salient difference Zarate identified between the two was that in Kirkwood officials considered seeking a restraining order and decided against it, shortly before Thornton committed the crimes.
Zarate testified that "the best predictor of future violence is past violence." She acknowledged that it was not possible to "predict for sure [that] a violent act is going to happen"; one could only determine whether the person is "on the pathway to violence." This concession did not discredit the witness's testimony; it was a tempering factor that only highlighted the obvious fact that human behavior cannot be predicted with absolute certainty. The trial judge could and unquestionably did consider this limitation in evaluating the strength of the evidence before her. She did not permit testimony about the ultimate fact of appellant's future dangerousness; she repeatedly stated that whether a threat of future harm existed was for the court to decide as the trier of fact. The trial judge carefully weighed the expert's testimony together with the facts in evidence and reached her conclusion that appellant posed a risk of future harm if she did not issue the injunction. Substantial evidence supports this finding, and no evidentiary error is shown.
4. Overbreadth
Appellant finally asserts that there was insufficient proof that the protected individuals were employees of the City. In apparent recognition of the futility of this claim in light of the hearing testimony and the rules governing judicial notice, appellant does not support the assertion with any references to the record, including any objection on this ground. Instead, he raises a more specific issue, whether the injunction improperly encompassed two former members of the city council. Appellant called the court's attention to the status of these individuals at the outset of the hearing, noting that Forrest Williams and David Cortese were no longer on the council. The court deferred the question until the end of trial, but the matter does not appear to have been discussed again. No evidence or argument was presented on the City employment status of Williams and Cortese. Having abandoned this claim at trial, appellant is foreclosed from raising it on appeal.
The primary focus of appellant's overbreadth argument is on the extent of the conduct prohibited by the injunctions. Because there was no claim that he inflicted violence on any City official or planned to attack city hall, "the trial court's power was only to enjoin appellant from making comments about other people's newsworthy violent actions against local government while speaking to respondent's employees." Appellant takes issue with the limitations on his access to the city hall building and his movements within the council chambers. These restrictions "were overbroad, for they did more than curtail future conduct of the nature that prompted the injunction under the workplace-safety statute." As a result, at his age of 70 he is burdened by having to use stairs instead of an elevator, by not being allowed to deliver documents personally, and by being barred from other public meetings.
Appellant's view of the scope of the permissible remedy under section 527.8 is too narrow. The content of a threat does not define the scope of the injunction; it offers a ground from which future violence may be anticipated. Consequently, threatening violence does not lead to an injunction against only a similar threat; the aim of the order is to prevent harm of the nature suggested by the threat.
It is true, as appellant points out, that "an injunction should not be granted as punishment for past acts where it is unlikely that they will recur." ( Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422 [ 21 Cal.Rptr.2d 303]; accord, In re Tobacco II Cases (2009) 46 Cal.4th 298, 320 [ 93 Cal.Rptr.3d 559, 207 P.3d 20]; Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1040 [ 34 Cal.Rptr.2d 108].) In appellant's view, the restrictions on him represent the City's attempt merely to "curtail what amounts to annoying behavior." This portrayal of the facts, however, turns upon a view of the evidence not shared by the trial court. The court evidently did not agree that appellant expressed only "colorful language and fanciful ideas" that did not pose a risk. As we have already discussed, substantial evidence supports the court's factual findings on the requisite elements of section 527.8. It carefully reviewed the testimony of the witnesses who described their fearful reactions to appellant's verbal and physical outbursts and explained that in light of appellant's long-standing hostility toward City employees, accentuated by his persistent belief that the police had invaded his home and damaged his roof with their helicopter, appellant's antagonism could escalate into violent conduct. Accordingly, we must uphold its determination, by clear and convincing evidence, that an injunction was necessary to prevent irreparable harm to the identified City employees.
Disposition
The orders are affirmed.
Rushing, P. J., and Premo, J., concurred.