01 Appellant's Opening Brief Draft 6

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
S ECOND A PPELLATE D ISTRICT
D IVISION O NE
GLENN F. BECKETT, ) COA No. B224197

)
Appellant, ) (Sup.Ct.No. GC042707)
)
v. )
)
PASADENA UNIFIED SCHOOL )
DISTRICT, )
)
Respondent. )
)
APPEAL FROM THE ORDER OF

THE SUPERIOR COURT OF LOS ANGELES COUNTY
THE HONORABLE JAN A. PLUIM, JUDGE
APPELLANT’S OPENING BRIEF
Glenn F. Beckett, SBN 107662

150 N. Santa Anita Avenue, Suite 540
Arcadia, CA 91006
(626) 446-2023
Attorney In Propria Persona

TABLE OF CONTENTS
Page(s)
APPELLANT’S OPENING BRIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CASE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF CONTENTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Procedural Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF APPEALABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Appellant’s Version of the Facts. . . . . . . . . . . . . . . . . . . . . . . . 8
1. The Altercation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Respondent’s Version of the Facts. . . . . . . . . . . . . . . . . . . . . . 10
1. The Altercation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. The Undisputed Facts of The Case. . . . . . . . . . . . . . . . . . . . . . 13
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

WHEN IT GRANTED PUSD INJUNCTIVE RELIEF WITHOUT
ALLOWING APPELLANT TO CROSS-EXAMINE WITNESSES
AND PRESENT OTHER RELEVANT ORAL TESTIMONY. . . . 17
A. Factual and Procedural Summary.. . . . . . . . . . . . . . . . . . . . 17
B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. The Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
i
D. The Error Requires Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . 26
II. THE TRIAL COURT’S RULING IS ERRONEOUS

BECAUSE THE RECORD LACKS EVIDENCE APPELLANT
COMMITTED AN UNLAWFUL ACT AGAINST ANY PUSD
EMPLOYEE OR IS LIKELY TO COMMIT AN ACT OF
VIOLENCE AGAINST ANY PUSD EMPLOYEE. . . . . . . . . . . . 34
A. Procedural and Factual Summary.. . . . . . . . . . . . . . . . . . . . 34
C. The Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

IN GRANTING PUSD INJUNCTIVE RELIEF BECAUSE THE
COURT’S ORDER VIOLATES PUBLIC POLICY CREATED
BY THE ENACTMENT CODE OF CIVIL PROCEDURE
SECTION 527.8, SUBDIVISION (a).. . . . . . . . . . . . . . . . . . . . . . . . 42
A. Factual and Procedural Summary.. . . . . . . . . . . . . . . . . . . . 42
C. The Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
IV. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE

INJUNCTION BECAUSE EVIDENCE IS LACKING TO
SUPPORT ALL THE REQUISITE ELEMENTS OF THE
WILLFUL HARASSMENT STATUTE (CODE CIV. PROC.,
§ 527.6), WHICH WAS THE APPARENT BASIS FOR THE
TRIAL COURT’S INJUNCTION... . . . . . . . . . . . . . . . . . . . . . . . . . 48
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ii
B. The Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. No Evidence of a Course of Conduct. . . . . . . . . . . . . 51
2. No Evidence of a Threat of Future Harm. . . . . . . . . . 53
3. No Evidence of Substantial Emotional Distress.. . . . 55
C. The Error Requires Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . 58
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
VERIFICATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
iii
TABLE OF AUTHORITIES
STATE CASES
Adler v. Vaicius, 21 Cal. App.4th 1770 (Cal.App.2d Dist. 1993. . . . . 20, 21
Bookout v. Nielsen, 155 Cal.App.4th 1131

(Cal. App. 4th Dist. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574

[46 Cal. Rptr. 2d 233]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Common Cause v. Board of Supervisors, 49 Cal.3d 432

(Cal. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 524. . . . . . . . . . . . 24
Diamond View v. Herz, 180 Cal. App. 3d 612

(Cal.App.3d Dist. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 48
Donovan v. Poway Unified School Dist., 167 Cal. App. 4th 567. . . . . . . . 35
Fletcher v. Western National Life Ins. Co. (1970)

10 Cal.App.3d 376, 397 [89 Cal.Rptr. 78, 47 A.L.R.3d 286].. . . . . . . . . . 58
Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881

[92 Cal.Rptr. 162, 479 P.2d 362].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Franck v. Polaris E-Z Go Div. of Textron, Inc. (1984)

157 Cal.App.3d 1107, 1114 [204 Cal.Rptr. 321]. . . . . . . . . . . . . . . . . . . . 50
Gold v. Los Angeles Democratic League (1975) 49

Cal.App.3d 365, 372 [122 Cal.Rptr. 732]. . . . . . . . . . . . . . . . . . . . . . . . . 40
Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589

[36 Cal. Rptr. 3d 154](Hope). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
Nora v. Kaddo, 116 Cal.App.4th 1026

(Cal. App. 2d Dist. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iv
Leydon v. Alexander, 212 Cal.App.3d 1
(Cal.App.1st Dist. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52
McManus v. KPAL Broadcasting Corp., 182 CA2d 558, 563,

6 CR 441 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
North Pacifica LLC v. California Coastal Com., 166

Cal. App. 4th 1416 (Cal.App.2d Dist. 2008). . . . . . . . . . . . . . . . . . . . . . . 42
Olive Proration etc. Committee v. Agricultural etc. Committee, 17 Cal.2d

204, 210 [109 P.2d 918] (1941).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
People v. Manchetti, 29 Cal.2d 452, 459

[175 P.2d 533] (1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
People v. Redwine, 166 Cal.App.2d 371

(Cal.App.2d Dist. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27
Priestly v. Superior Court of San Francisco, 50 Cal.2d 812

(Cal. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Roby v. McKesson Corp., 146 Cal. App.4th 63

(Cal. App. 3d Dist. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 [51

Cal.Rptr.2d 907]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Russell v. Douvan, 112 Cal. App. 4th 399

(Cal.App.1st Dist. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55
Schild v. Rubin, 232 Cal. App. 3d 755

(Cal. App. 2d Dist. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 57, 58
Schraer v. Berkeley Property Owners’ Ass’n, 207 Cal.App.3d 719

(Cal. App. 1st Dist. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20-24, 25
Scripps Health v. Marin 72 Cal. App. 4th 324

(Cal.App.4th Dist. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 38-39
Smith v. Silvey (1983) 149 Cal.App.3d 400

[197 Cal.Rptr. 15]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
v
Thing v. La Chusa (1989) 48 Cal.3d 644, 648
[257 Cal.Rptr. 865, 771 P.2d 814]). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444

[4 Cal.Rptr. 3d 54]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632

[80 Cal.Rptr.2d 378]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
FEDERAL CASES
Alford v. United States, 282 U.S. 687 (1931).. . . . . . . . . . . . . . . . . . . . . . 25
Brookhart v. Janis, 384 U.S. 1, 3 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rushen v. Spain (1983) 464 U.S. 114, 119 (1983). . . . . . . . . . . . . . . . . . . 33
Smith v. Illinois, 390 U.S. 129 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. Marbella, 73 F.3d 1508, 1513 (9th Cir. 1989). . . . . . . . . 19
STATUTES
Civ. Code, § 3420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Code Civ. Proc., § 128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Code Civ. Proc., § 525. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Code Civ. Proc., § 527.6, subd. (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Code Civ. Proc., § 527.6, subd. (b). . . . . . . . . . . . . . . . . . . 45, 49, 52, 55, 58
Code Civ. Proc. §527.6 (b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Code Civ. Proc., § 527.6, subd. (d). . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 57
Code Civ. Proc., § 527.8, subd. (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Code Civ. Proc. § 527.8, subd. (d). . . . . . . . . . . . . . . . . . . . . . . . . . 22, 46-47
Code Civ. Proc., § 527.8, subd. (f). . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Code Civ. Proc., § 904.2, subd. (g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Evid. Code, § 1200, subd. (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27
vi
Pen. Code, § 240. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Pen. Code, § 242.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
RULES OF COURT
Cal. Rules of Court, Rule § 8.204(a)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . 7

Cal. Rules of Court, Rule § 8.204(c)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . 62
vii
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
S ECOND A PPELLATE D ISTRICT
D IVISION O NE
GLENN F. BECKETT, ) COA No. B224197

)
Appellant, ) (Sup.Ct.No. GC042707)
)
v. )
)
PASADENA UNIFIED SCHOOL )
DISTRICT, )
)
Respondent. )
)
APPELLANT’S OPENING BRIEF
CASE SUMMARY
This is an appeal by Glenn F. Beckett (“appellant”), challenging an
order granting anti-harassment injunctive relief to Pasadena Unified School
District (“PUSD”) on behalf of its non-employee attorney, Jon Setoguchi
(“Setoguchi”). The case stems from a brief, non-injury altercation on
January 28, 2010 between appellant and Setoguchi and to which the public
entity respondent, PUSD, is a complete stranger.
....
1
STATEMENT OF CONTENTIONS
Foremost, this case concerns a prejudicial denial of due process. By
means of allegations made on belief, PUSD characterized appellant as a
“threat to society,” a “detriment to the legal profession” and an “immediate
danger” not only to all the students and employees of its entire school
district, but to some eighty-five employees of its outside law firm, in
addition to being a danger to the witnesses in a case involving PUSD and
appellant’s pro bono client.
Yet, despite appellant’s request, the trial court refused to allow
cross-examination concerning statements in written declarations which
were the only evidence PUSD presented and therefore the only evidence on
which the trial court could have based its finding of harassment.
Consequently the trial court’s order flies squarely in the face of
Schraer v. Berkeley Property Owners’ Ass’n, 207 Cal.App.3d 719 (Cal.
App.1st Dist.(1989).) There, the First District held that the lower court’s
failure to allow relevant oral testimony was reversible error.
Here, the due process issue is indistinguishable from that in Schraer,
supra, in that the trial court made its finding based on ex parte statements
and hearsay while denying the appellant’s right to confront witnesses. (U.S.
2
Const. 6 th Amend.) (1RT 8:2-12.)1 Inasmuch as the statements given in a
sheriff’s incident report (1CT 98-101) are inconsistent with statements
given by these same individuals in their written declarations, a full-
evidentiary hearing with cross-examination, as this brief will show, would
likely have resulted in a different outcome of the hearing. (For example,
one important issue that could have been addressed by cross-examination
was whether the act complained of was willful.)
Moreover, the trial court’s failure to hold a full evidentiary hearing
contravened Code of Civil Procedure section 527.8, subdivision (f) because
the trial court disallowed relevant oral testimony.
Thus, appellant respectfully requests this Court to reaffirm the First
District’s holding in Schraer, supra, in finding that the trial court denied
appellant important constitutional due process rights, and in so doing,
committed reversible error.
In addition, the trial court erred under the substantial evidence rule
in finding harassment based, as the respondent’s own declarations
established, on an allegation of a single act and no allegation that appellant
made any actual threats of violence or future harm.
1
“RT” refers to the Reporter’s Transcript of the proceedings conducted in
this case, and are cited as “(volume)RT (page:line).”
3
Finally, the trial court erred as a matter of law and public policy
when it allowed respondent, a public entity, to proceed, at taxpayer
expense, with an action from which it is, by statute, prohibited. (Code Civ.
Proc. § 527.8, subd. (a).)
This appeal is from the order entered by the Los Angeles County
Superior Court on March 29, 2010, granting respondent an anti-harassment
injunction, on behalf of a person who is not respondent’s employee.
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4
STATEMENT OF THE CASE
A. Procedural History
On February 1, 2010, respondent PUSD filed an ex parte application
for a temporary restraining order (“TRO”) and an order to show cause
(“OSC”) re preliminary injunction against appellant Glenn F. Beckett. (1CT
55-78.)2 Said application was filed in Los Angeles County Superior Court,
Northeast District, Dept. P, erroneously 3 under case number GC042707 and
is captioned “Pasadena Unified School District, a California public entity,
plaintiff, v. Mark Kingsbury, 4 an individual; et al.” (1CT 55.) PUSD based
its application on Code of Civil Procedure sections 527 and/or 527.6. (1CT
55:24-56:2.) Said application was made on behalf of all PUSD employees,
despite no allegation that appellant had contact with any such employee.
The application was made also on behalf of numerous non-employees, and
again without any allegation that appellant had contact with any such
persons except for Jon Setoguchi, PUSD’s outside counsel, who was the
2
“CT” refers to the Clerk’s Transcript of the proceedings conducted in this
case, and is cited as “(volume)CT (page:line).” For consecutive pages and
lines, the format is (volume)CT (page:line-page:line.
3
The instant injunction case number is erroneous because it is the case
number of an unrelated pending lawsuit to which appellant is not a party.
4
Mark Kingsbury is appellant’s fee-waiver, pro bono client in a pending
lawsuit filed on April 6, 2009 and under the same case number (GC042707)
as the unrelated instant injunction proceeding. (1CT 10.)
5
only other person, besides appellant, involved in the altercation. (1CT
57:25-27.) On February 3, 2010, appellant filed timely opposition. (1CT
80-102.)
On February 4, 2010 at an ex parte hearing in Dept. P, the trial court
granted PUSD’s application for a TRO, ordering appellant to stay at least
five feet away from Setoguchi. (2CT 178-179:9-11.) At that hearing, and
before the return hearing on the OSC re preliminary injunction, the court
stated that it was going to set “a date for issuing a preliminary injunction,”
thus implying that it had already reached a decision before the matter was
heard on February 26, 2010. 5 (1RT 2:15-16.)
On February 22, 2010, appellant filed timely opposition to the OSC
re preliminary injunction (1CT 140), a motion to quash for lack of personal
jurisdiction (2CT 259-265), and written objections to evidentiary
declarations of PUSD. (2CT 181-185.)
The return hearing on the OSC re preliminary injunction was held on
February 26, 2010 and on March 29, 2010, the trial court signed the order
granting PUSD, on behalf of a non-employee, a preliminary injunction.
Said injunction, as did the TRO, ordered appellant to stay at least five feet
away from opposing counsel. (2CT 274-275.) The trial court denied
5
The court, however, did correct itself when the apparent ‘pre-judgment’ was brought to
the court’s attention by appellant. (1RT 2:24-3:2.)
6
appellant’s motion to quash (2CT 273), but did not rule on appellant’s
written objections to evidentiary declarations. (2CT 275.)
On April 26, 2010, appellant filed a timely petition for a writ of
mandate (case no. B223983) which this Court summarily denied, 2-1,
Rothschild, J. dissenting. On June 7, 2010, appellant filed a petition for
review with the California State Supreme Court (case no. S183319) and a
reply on July 8, 2010 to PUSD’s answer. Review was denied on July 28,
2010. On September 1, 2010, appellant filed a petition for a writ of
supersedeas and a reply to the answer thereto on September 21, 2010. This
Court summarily denied that writ, 2-1 on October 13, 2010. On November
2, 2010 , appellant filed a motion for calendar preference which was
granted on December 3, 2010.
On April 26, 2010, appellant filed a timely notice of appeal. (2CT
277.)
STATEMENT OF APPEALABILITY
The order from which appellant appeals is final (Cal. Rules of Court,
rule 8.204(a)(2)(B)), and is appealable pursuant to Code of Civil Procedure
section 904.2, subdivision (g).
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7
STATEMENT OF FACTS
A. Appellant’s Version of the Facts
1. The Altercation
On January 28, 2010, appellant appeared on behalf of defendant
Mark Kingsbury on defendant’s motion to compel further responses to
requests for admissions and for sanctions, 6 and to request the trial judge to
recuse himself. 7 Setoguchi appeared for PUSD. The hearing took place at
Pasadena Superior Court, Dept. P, the Honorable Jan A. Pluim presiding.
At the end of the hearing, appellant exited the courtroom, making a
right turn (north) into the corridor as Setoguchi exited the courtroom,
making a left turn (south) into the hallway. After about four feet, appellant
stopped, turned to his left and seeing Setoguchi, appellant called out to him
in a loud voice and said, “Please do not send me anymore faxes.” Setoguchi
denied sending any faxes. Appellant then approached Setoguchi and said,
“Yes, you did. I have them right here,” holding up the 44-page fax which
Setoguchi had sent on January 24, 2010. Appellant had notified Setoguchi
in writing on January 8, 2010 that he was refusing fax communication
because of Setoguchi’s pattern of sending excessively long and redundant
6
This concerns the underlying but unrelated case, numbered GC 042707.
7
Both motions were denied.
8
faxes. (2CT 157 ¶ 2.)
Appellant then turned and walked northbound toward the stairway.
Setoguchi, instead of continuing toward the south stairway, changed
direction and walked fast enough to catch up to appellant, calling after him
as he approached. As Setoguchi brushed appellant’s right elbow with his
[Setoguchi’s] left arm, appellant turned around to face him and in so doing,
inadvertently bumped Setoguchi with his elbow or forearm. (1CT 92:4-24.)
Appellant then continued to the stairway and headed down the stairs.
As he did so, Setoguchi continued following and trying to engage appellant
in a discussion. When they reached the first floor, Setoguchi said, “How do
you want to handle this?” Appellant answered, “How do you want to handle
this?” Appellant and Setoguchi then returned to the first floor and
interviewed witnesses. (1CT 93:9-14.)
A few minutes later, at about 9:30 a.m., Sheriff Deputy Duran,
employee #293947, arrived and interviewed Setoguchi, appellant and
several witnesses (Joe Coria, Susan Johnson, Gerry Walling and Valerie
Martinez, aka Valerie Guerra), all of whose statements are included in the
sheriff’s incident report. (“incident report”) (1CT 98-101.)
Also in the incident report is appellant’s statement concerning the
altercation as follows:
9
I [Deputy Duran] contacted s/v8 Beckett who told
me the same story as s/v Setoguchi, however, he
added that once outside the courtroom (Dept P) he
told s/v Setoguchi not to send him any more faxes
and began to walk away. As he was walking he said
that s/v Setoguchi followed him, continued to argue
with him, and brushed his (Setoguchi) left elbow
against his (Beckett) right elbow.
S/v Beckett said he wasn’t injured and was not

desirous of prosecution or a report.
(1CT 100.)
On Monday, February 1, 2010, PUSD, on behalf of Setoguchi, filed
its application for a TRO and OSC re preliminary injunction, leading to the
trial court’s order entered on March 29, 2010, ordering appellant to stay at
least five feet away from Setoguchi, and from which order this appeal is
taken.
B. Respondent’s Version of the Facts
1. The Altercation
Respondent’s version of the facts as stated by Setoguchi in Deputy
Duran’s incident report, supra, are as follows:
S/v Setoguchi said when the case was concluded,

they continued to argue with each other as they
walked out of the courtroom. Once in the hallway
he said s/v Beckett walked next to him and pushed
him on his [Setoguchi’s] left arm with his
[Beckett’s ] right elbow.
S/v Setoguchi said he was not injured and didn’t
8
‘S/v’ in this incident report means ‘suspect/victim.’ (2CT 159.)
10
want a police report written. He also said that he
just needed to calm himself down and leave the
building.
(2CT 160.) [Emphasis added.]
In Setoguchi’s declaration dated January 30, 2010, he stated that he
arrived back at his office in Cerritos at about 10:40 a.m. (1CT 62:25-26.)
Setoguchi then immediately went to his supervising partner, Edward Ho,
and told him what happened at the hearing. Mr. Ho suggested that
Setoguchi “prepare a document memorializing the incident.” (1CT 62:26-
28.)
At about 1:33 p.m., Setoguchi telephoned Deputy Duran that he
[Setoguchi] had changed his mind and now wished to press criminal
charges against appellant Beckett. (2CT 162.)9
In that same declaration, he stated:
As I exited the courtroom, Mr. Beckett approached

me and demanded that I stop sending him faxes. As
I began to respond to his statement, Mr. Beckett
shoved me in a violent manner. I lost my balance
and almost fell.
(1CT 61:13-15.) (Emphasis added.]
In its ex parte application seeking a TRO and preliminary injunction
against appellant, PUSD stated:
9
Appellant was never charged with a criminal offense in this matter.
11
This application is made on the ground that Mr.
Beckett, in plain view of numerous jurors and
witnesses, violently assaulted and battered the
District’s 10 [PUSD’s] counsel of record following
the Court hearing on January 28, 2010. In addition,
after none of the jurors or witnesses took Mr.
Beckett's side, he attempted to intimidate them. Mr.
Setoguchi, the District’s [PUSD’s] counsel of
record who was involved in the unprovoked
attack, is pressing criminal charges against Mr.
Beckett. Based upon Mr. Beckett's hostile and
belligerent behavior in this lawsuit, coupled with
the egregious acts he committed on January 28,
2010, Mr. Setoguchi is fearful of Mr. Beckett, and
reasonably and in good faith believes that Mr.
Beckett will retaliate. Mr. Beckett should be
enjoined from committing any further unlawful acts
against Mr. Setoguchi, the attorneys and support
staff at Mr. Setoguchi's law firm, employees of the
District [PUSD], including Superintendent Diaz,
and any of the District's [PUSD’s] witnesses in
connection with this lawsuit.
(1CT 57:25-58:8.) [Emphasis added.]
Setoguchi then secured declarations from some of the witnesses who
had given statements to Deputy Duran. One of these witnesses was Joe L.
Coria, who told Deputy Duran that he saw appellant “push Setoguchi with
his right hand causing Setoguchi to lose his balance and almost fall on top
of a person sitting on a bench.” (2CT 161.) [Emphasis added.]
However, the following day on January 29, 2010, Coria revised his
10
“District,” is respondent’s reference, in its application for injunctive relief,
to Pasadena Unified School District. (1CT 55:27.)
12
version of the facts by stating in his declaration:
I [Coria] observed Mr. Beckett shove Mr.

Setoguchi in a violent manner. I would
characterize Mr. Beckett’s action towards Mr.
Setoguchi as a ‘body slam.’
(1CT 50:18-20.) [Emphasis added.]
In their written declarations, neither Setoguchi nor any witness
alleged that the above-described altercation resulted in an injury. This fact
is corroborated in Deputy Duran’s incident report as follows.
Based on both s/v’s statements and not seeing any

visible injuries on either s/v’s, both were allowed
to leave the building without further incident.
(2CT 256.) [Emphasis added.]
C. The Undisputed Facts of the Case
The undisputed facts presented to the trial court are these:
1. The trial court denied appellant the opportunity to cross-
examine the party and witnesses, whose disputed declarations
were the only evidence PUSD presented to the trial court. (1RT
8:2-12.)
2. PUSD is a California public entity. (1CT 10:11-12.)
3. Setoguchi is not an employee of PUSD. (1CT 61:2-4; 2CT
232:21-233:6.)
4. PUSD’s instant action was brought under the harassment
13
statutes (Code Civ. Proc., §§ 527 and/or 527.6) to enjoin
appellant from alleged harassment of Setoguchi. (1CT 56:1-9,
(2CT 198, 199:1-3.)
5. The altercation did not take place at PUSD’s workplace or
anywhere which could reasonably be construed as such. (1CT
144:7-10.)
6. PUSD obtained the instant injunctive relief on behalf of a non-
PUSD employee. (2CT 275:13-17.)
7. PUSD did not allege that appellant made any actual verbal
threats of harm to Setoguchi or to any PUSD employee. (1CT
98-101.)
8. Respondent alleged that appellant committed only one unlawful
act (assault and battery) against Setoguchi. (1CT 57:25-26,
121:1-2.)
9. Appellant had no contact with Setoguchi prior to January 28,
2010, and no contact since. (2CT 166:11-15.)
10. PUSD did not allege that appellant committed an unlawful act
against or had contact with any PUSD employee. (1CT 26-27,
2CT 248:7-10.)
11. Deputy Duran, in the incident report stated as follows:
Approximately twenty minutes after both s/v’s left
14
the location, Judge Pluim called the sheriff’s office
for a deputy to respond to his courtroom (Dept. P).
As I arrived he told me that he was told that an
altercation occurred outside his courtroom and
wanted the Sheriff’s Dept. to investigate the
incident.
(1CT 100 ¶ 5.) [Emphasis added.]
12. The trial court took no apparent action sua sponte, either by
means of its inherent powers or via Code of Civil Procedure
section 128 concerning appellant and his role in the above-
described altercation. (2CT 273, 178-179, 274-275.)
13. The altercation in question took place outside the courtroom and
did not disrupt any proceeding. (2CT 202:13-15, 210:7-9,
211:7-12.)
....
....
....
....
....
....
....
....
....
15
ISSUES PRESENTED
1. Was the trial court’s failure to allow appellant to cross-examine

witnesses and present other relevant oral evidence reversible error?
2. Do the facts in this case establish a threat of future harm to any

PUSD employee warranting injunctive relief against appellant?
3. When the trial court granted injunctive relief to a public entity to

protect a non-employee of that public entity in contravention to Code
of Civil Procedure section 527.8 subdivision (a) was it reversible
error?
4. Does the evidence support a finding a credible threat of violence, or

a knowing and willful course of conduct directed at a specific person
that would cause a reasonable person to suffer substantial emotional
distress, and actually caused substantial emotional distress to the
alleged victim?
....
....
....
....
....
....
....
....
....
....
....
16
ARGUMENT
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

WHEN IT GRANTED INJUNCTIVE RELIEF WITHOUT
ALLOWING APPELLANT TO CROSS-EXAMINE
WITNESSES AND PRESENT OTHER RELEVANT ORAL
TESTIMONY.
A. Factual and Procedural Background
On February 4, 2010, at the ex parte hearing, appellant requested the
trial court to provide him with the “addresses and phone numbers of all
persons named in the declarations filed with the court by the plaintiff
[PUSD] with the court for the purpose of subpoenaing these witnesses into
court. In other words --” (1RT 7:21-27.) The court interrupted and refused
to provide the requested information. (1RT 7:28-8:1.)
At that point the following exchange took place between appellant
and the court:
MR. BECKETT: Okay. I have no right to cross-

examination?
THE COURT: I mean, I wouldn’t have it anyhow.
MR. BECKETT: You don’t have it, but you could

order it. 11 The right to cross-examination–see, this
is unsubstantiated allegation that I’m not going to
be able to rebut unless they show up in court, and
11
The witnesses in question were persons serving on jury duty in Dept. P, and
whose contact information, as with any juror, is available to the court.
17
they control whether they show up. All I want them
to do is show up.
THE COURT: I’m not going to order that, I’m
sorry.
(1RT 8:2-12.)
The only evidence respondent submitted to the trial court consisted
of nine highly disputed declarations, three of which are by persons who did
not witness the altercation and whom appellant had never met in person.
They are Michael Rubino (co-counsel representing respondent) (2CT
217:2-5.); Edwin Diaz (respondent employee) (2CT 219:2-3.); and Michael
Ammermon (former consultant for respondent). (2CT 221:2-6.) One written
declaration was given by the aggrieved party, Setoguchi, and five
declarations by witnesses. Three of the witnesses, Susan Johnson, Joe L.
Coria and Valerie Martinez (aka Valerie Guerra), also gave statements to
Sheriff’s Deputy Duran immediately following the altercation. (2CT 172-
175.)
PUSD did not submit into evidence the witness statements set forth
in Deputy Duran’s incident report. All of PUSD’s written declarations used
as evidence in this case contain disputed ex parte statements.
B. Standard of Review
Whether the trial court’s failure to allow cross-examination and
other relevant oral testimony violated appellant’s due process rights under
18
Code of Civil Procedure section 527.8 subdivision (f), is a question of law.
Review is therefore de novo. (United States v. Marbella, 73 F.3d 1508,
1513 (9th Cir.), cert. denied, 116 S.Ct. 2555 (1996).
C. The Error
Civil Procedure section 527.8 subdivision (a)12 is the controlling
statute here because respondent PUSD is a public entity, having sought
injunctive relief on behalf of a person.
Section 527.8 subdivision (f) requires that “[w]ithin 15 days of the
filing of the petition, a hearing shall be held on the petition for the
injunction. The defendant may file a response that explains, excuses,
justifies, or denies the alleged unlawful violence or credible threats of
violence or may file a cross-complaint under this section.”
Further due process requirements under this section are as follows:
At the hearing, the judge shall receive any testimony

that is relevant and may make an independent
inquiry....If the judge finds by clear and convincing
evidence that the defendant engaged in unlawful
violence or made a credible threat of violence, an
12
“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.” (Code Civ. Proc. § 527.8 (a).)
19
injunction shall issue prohibiting further unlawful
violence or threats of violence.
(subdivision (f), supra.)
The Court in Schraer v. Berkeley Property Owners’ Ass’n. 207
CA3d 719, 731, 255 CR 453 (1989), in discussing the due process
requirements of the harassment statutes, explained:
[A]lthough the procedures set forth in the

harassment statute are expedited, they contain
certain important due process standards. Most
notably, a person charged with harassment is given
a full opportunity to present his or her case, with
the judge required to receive relevant testimony and
to find the existence of harassment by ‘clear and
convincing’ proof...
(Id. at p. 730, italics in original.) (See Adler v. Vaicius, 21 Cal. App. 4th
1770 (Cal. App. 2d Dist. 1993.)
Moreover, the Schraer Court held that a party charged with
harassment is entitled to an evidentiary hearing. In Schraer, both parties
sought to present testimony in addition to the declarations and exhibits
attached to the petition. However the “trial court indicated that testimony
was unnecessary, as it was prepared to rule on the papers presented by the
parties. This ruling deprived both parties of important rights that the statute
expressly preserved to them.” (Id. 207 Cal.App.3d at pp. 730-732.)
As in Schraer, appellant here sought to present oral testimony, but
the trial court denied the request thus depriving him of important rights.
20
(1RT 8:2-12.)
The Schraer Court then explained the importance of allowing parties
to present oral testimony at injunction hearings for harassment as follows:
[T]he procedure for issuance of an injunction

prohibiting harassment is self-contained. There is
no full trial on the merits to follow the issuance of
the injunction after the hearing provided by Code of
Civil Procedure section 527.6, subdivision (d). 13
That hearing therefore provides [207 Cal.App.3d
733] the only forum the defendant in a harassment
proceeding will have to present his or her case. To
limit a defendant’s right to present evidence and
cross-examine as respondents would have us do
would run the real risk of denying such a
defendant’s due process rights, and would open the
entire harassment procedure to the possibility of
successful constitutional challenge on such
grounds.
(Id at pp. 732-733, fn. omitted.)
That is exactly what happened here when the trial court not only
limited appellant’s right to present evidence, but eliminated his right to
cross-examine altogether. In light of the fact that the only evidence against
appellant before the court were disputed written declarations, cross-
examination of those witnesses was essential in preserving appellant’s right
to a fair hearing. The trial court’s failure to allow receive relevant witness
13
This subdivision sets forth the due process requirements under the anti-
harassment statute applicable for persons. (Code Civ. Proc. § 527.6) Its counterpart
for non-persons, including public entities, is Code of Civil Procedure section 527.8,
subdivision (f), supra.
21
testimony conflicts with the dictates of Schraer and Adler, supra, and
thereby deprived appellant of his right to confront witnesses. (U.S. Const.
6 th Amend.)
The Schraer Court further explained:
In our opinion, these statutory safeguards were not

followed in the instant case. Contrary to the express
requirements of the statute, the trial court expressly
refused to permit the introduction of oral testimony,
and based its decision entirely on written
declarations, newspaper articles, and the arguments
of counsel. The trial court repeatedly stated that it
was not required to make a factual determination of
‘what has occurred in the past,’ but was only
supposed to ‘keep the peace’ by preventing possible
future violations of the law. The court went on to
base its conclusion that future harassment might
occur by relying on concededly hearsay press
accounts of what the appellants had said or were
represented to have said; it then explicitly shifted to
appellants the burden of proving that the statements
were not made or were not authorized. In so doing,
the trial court manifested a fundamental
misunderstanding of its role under the procedural
statute in question.
(207 Cal.App.3d at p. 731.)
Again Schraer is on point. Here, the written declarations of Rubino,
Diaz, and Ammermon are hearsay accounts based on what they read in the
declarations of Setoguchi and Coria. (2CT 217-218, 219-220, 221.) A full
evidentiary hearing as mandated by statute ( Code Civ. Proc., §§ 527.8,
subd.(f) and 527.6, subd. (d)) would likely have caused those declarations
22
to be stricken as inadmissible hearsay. 14 Cross-examination of the
remaining witnesses was warranted to establish, among reasons, why their
affidavits were so similar in syntax. For example in three of the
declarations, each witness stated, verbatim, the exact same statement: “I
believe Mr. Beckett should be held accountable for his actions so that he
does not hurt anyone else.” (2CT 211:24-25, 213:21-22, 216:3-4.) Once
more, cross-examination likely would have rebutted those statements
because no injuries were alleged on which those statements could have
been predicated. (1CT 100 ¶ 1.)
In addition, cross-examination could also have determined why
witness Coria described the physical contact between Setoguchi and
appellant as a “push” in his statement to Deputy Duran.15 Yet the next day
in his written declaration, Coria described this same act as a “body slam.”
(1CT 50:19-20.)
Similar to Schraer, the trial court here based its conclusion that
future harassment might occur by relying on ex parte statements and/or
statements made on information and belief about what appellant had done.
(207 Cal.App.3d at p. 731.) Appellant here, then had the “burden of proving
14
“Except as provided by law, hearsay evidence is inadmissible.” (Evid.
Code, § 1200, subd. (b).)
15
(2CT 161.)
23
that the [acts] were [done.]” (Ibid.) Without the benefit of witness cross-
examination, appellant’s ability to defend was curtailed. Therefore the “trial
court manifested a fundamental misunderstanding of its role under the
procedural statute in question.” (Ibid.)
However, the Schraer Court qualified the necessity of oral
testimony, stating:
Certainly, a full-fledged evidentiary hearing with

oral testimony from all sides may not be necessary
in all cases. (Cf. Continental Baking Co. v. Katz
(1968) 68 Cal.2d 512, 524 [67 Cal.Rptr. 761, 439
P.2d 889] [Citations.] We do hold, under the
express language of the statute and in accordance
with the requirements of due process, that the trial
court in a harassment proceeding may not
arbitrarily limit the evidence presented to written
testimony only, when relevant oral testimony is
offered.
(207 Cal.App.3d at p. 733, italics added.)
The Schraer Court then summed up its reasoning:
“Thus, if it is offered, relevant oral testimony must be taken from
available witnesses, and the trial court cannot issue an injunction unless it
finds, by clear and convincing evidence, that unlawful harassment already
exists in fact. The trial court failed to do that in this case; the injunction was
therefore improperly issued.” (Ibid.) Here there was no oral testimony
24
permitted 16 and only a one-time alleged unlawful act and a belief of future
retaliation 17 Within the meaning of Schraer, supra, the injunction here was
erroneously issued.
A number of courts, including the Second District, have provided
guidance in connection with the right to present oral testimony and to
cross-examine witnesses.
1. In Nora v. Kaddo, 116 Cal. App. 4th 1026 (Cal. App. 2d Dist.
2004), this Court affirmed the holding in Schraer, supra and in view of the
trial court’s disallowing oral testimony, stated that “[t]he procedure adopted
by the trial court deprived both parties of their rights in this matter.
...Kaddo was deprived of his right to defend.” (Ibid.) The same is true here.
2. In Alford v. United States, 282 U.S. 687 (1931), the court
stated, cross-examination is a matter of right. (Id. at p. 691.)
3. In People v. Redwine, 166 Cal. App. 2d 371 (Cal. App. 2d
Dist. 1958), this Court concluded that “[t]he improper denial of the right of
cross-examination is a denial of due process. (See Olive Proration etc.
Committee v. Agricultural etc. Committee, 17 Cal.2d 204, 210 [109 P.2d
918]. [Citations.]”
16
(1RT 8:2-12.)
17
(1CT 57:25-26, 58:3-4)
25
4. In Smith v. Illinois, 390 U.S. 129 (1968), the U.S. Supreme
Court reaffirmed that “a denial of cross-examination without waiver . . .
would be constitutional error of the first magnitude and no amount of
showing of want of prejudice would cure it. (Brookhart v. Janis, 384 U.S.
1, 3 (1966).)”
D. The Error Requires Reversal
In Priestly v. Superior Court of San Francisco, 50 Cal. 2d 812 (Cal.
1958), the court explained:
“Not every instance in which a cross-examiner’s question is
disallowed will defendant’s right to a fair hearing be abridged, since the
matter may be too unimportant [citation], or there may be no prejudice
[citation].... However, where the subject of cross-examination concerns the
matter at issue there can be no doubt that the refusal to permit such question
results in a denial of a fair hearing. [Citations.]” (Id. at pp. 822-823.)
Here the subject of the disallowed cross-examination concerned the
matter at issue because the subject consisted of disputed ex parte statements
in written declarations—the only evidence PUSD provided, and therefore
the only evidence on which the injunction order against appellant could
have been based.
When conducting an analysis for harmless error, a key factor is the
impact of disallowed cross-examination. When it is either redundant,
26
irrelevant, or lacks credibility, such cross-examination may create no
prejudice by its omission. However, where cross-examination could
reasonably lead to testimony affecting the outcome of the proceeding, then
a disallowance thereof is presumed prejudicial. In Redwine, supra, 166 Cal.
App. 2d 371, this Court stated that, “[w]here the subject of cross-
examination concerns the matter at issue, the refusal to permit it
results in a denial of a fair hearing. Prejudice must be presumed. (People v.
Manchetti, 29 Cal.2d 452, 459 [175 P.2d 533]. [Citations.]” (Ibid.) That is
the case here.
For example, PUSD based its injunction application on the ground
that “[appellant]...violently assaulted and battered [Setoguchi].” (1CT
57:25-26.) “An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” (Pen Code §
240.) “A battery is any willful and unlawful use of force or violence
upon the person of another.” (Pen Code § 242.) Notwithstanding there was
no history 18 of interaction between appellant and Setoguchi before or after
the altercation on January 28, 2010, the trial court, albeit erroneously,
nevertheless issued its injunction against appellant based only on this one-
time alleged assault and battery without permitting cross-examination or
18
(2CT 166:11-15.)
27
other oral testimony. (2CT 274-275, 1RT 8:2-12.)
Another example of where the denial of cross-examination was
prejudicial was that in the incident report Setoguchi described the split-
second physical contact during the altercation as only a “push,” and that “he
was not injured” (1CT 99 ¶ 3, 100 ¶ 1), and that he [Setoguchi] said he
“didn’t want a police report written.” (Ibid.) The foregoing coupled with the
fact that appellant apologized for the incident (1CT 62:7), it is reasonable
that cross-examination could have led to a conclusion that there was no
intent by appellant to cause injury to Setoguchi, as was alleged. Therefore,
the disallowance of cross-examination of Setoguchi and the other witnesses
creates reasonable doubt of harmless error.
There are other reasons the disallowance of cross-examination was
prejudicial to appellant. For example, the written declarations of witnesses
Crabb and Johnson are virtual clones of one another; inter alia, they each
contain the prejudicial verbatim statements: “I believe that [appellant]
intentionally tried to injure Mr. Setoguchi.” (2CT 211:13-14, 215:20-21),
and “[Appellant acted totally unprofessional.” (2CT 211:24, 216:2.)
Yet another example of the prejudice to appellant caused by the
disallowance of cross-examination is found in the Johnson declaration.
On February 3, 2010 appellant served PUSD with opposition papers
wherein he declared that the physical contact during the altercation was
28
“unintentional” and “inadvertent.” (1CT 92:24-25.) Sure enough in the
Johnson declaration, dated five days later, she used the identical terms in
the negative, stating that she believed that the alleged push was not
“unintentional or inadvertent.” (2CT 215:21-22.) All of the other written
declarations were written before PUSD received appellant’s February 3 rd
declaration and none of them contains the negation of the terms
“unintentional” or “inadvertent.” 19 (See 2CT 202-216.) Cross-examination
might have determined that if, after seeing those terms in appellant’s
February 3 rd declaration, PUSD secured the declaration of Johnson and then
inserted those same terms in the negative to neutralize appellant’s assertion
that the so-called “push” was indeed unintentional. In any event, the trial
court, in finding intent, apparently made a determination of appellant’s state
of mind without any oral testimony or cross-examination despite appellant’s
request in open court. (1RT 8:2-12.)
Most prejudicial and inflammatory of all was the declaration of Joe
L. Coria dated January 29, 2010. In it he stated he “observed [appellant]
shove Mr. Setoguchi in a violent manner.” (2CT 206:18-19.) Setoguchi, in
his declaration, used the same words to describe the same alleged act. (2CT
202:14-15.)
19
Setoguchi, in his declaration dated January 30, 2010, describes the alleged shove
as “intentional.” (2CT 202:18.) Mr. Coria’s declaration also does the same. 206:27.)
29
However, Mr. Coria then unleashed a barrage of vitriol that had less
to do with PUSD’s claims against appellant than it did with flat out
character assassination. In his ex parte written declaration, Mr. Coria
stated:
1. appellant’s demeanor was “despicable.” (2CT 207:28-208:1.)
2. appellant “has a restless soul.” (2CT 208:7.)
3. appellant is a “violent person.” (2CT 208:18-19.)
4. appellant is “vindictive.” (2CT 208:21.)
5. appellant’s conduct was “reprehensible.” (2CT 208:22-23.)
6. “people like [appellant] should not be allowed to practice law.” (2CT
208:24-25.)
7. “[appellant] has brought dishonor and shame to the legal
profession.” (2CT 208:25-26.)
8. “[appellant] has no business being a representative of the legal
9. appellant cannot “uphold the law.”(2CT 208:27.)
10. “If [appellant] was my attorney, I would fire him immediately.” (2CT
208:27-28.)
11. “[appellant] should be disciplined by the California State Bar.”(2CT
209:2.)
12. “[appellant] should be punished for his actions.” (2CT 209:3-4.)
30
13. “The court system and the police should do everything in their power
to prevent [appellant] from engaging in further acts of violence against
innocent people.” (2CT 209:5-7.)
14. “[appellant] is a detriment to society and brings shame to the legal
15. “[appellant] is a disgrace to the legal system and to society.” (2CT
209:8.)
16. appellant is a “threat to society.” (2CT 208:19.)
Yet the trial court would not allow appellant one word of cross-
examination to rebut these statements, which most likely had a substantial
prejudicial effect on the trier of fact and therefore on the outcome of the
hearing.
Once again, cross-examination would have established that appellant
and Mr. Coria have never met. More importantly, an examination of this
witness might have provided insight as to why, just one day earlier, Mr.
Coria used none of those words in Deputy Duran’s incident report. In fact
Mr. Coria stated to Deputy Duran that he saw appellant do nothing more
than “push” Setoguchi with his right hand. (1CT 100: ¶ 5-6.) Yet, the next
day in his declaration, Mr. Coria described that same “push” as a “body-
slam” and that he saw appellant “shove Mr. Setoguchi in a violent manner.”
(2CT 206:18-20.) It was prejudicial to appellant to disallow any inquiry as
31
to why Mr. Coria gave a brief, unbiased-sounding account in the incident
report, and then some twenty-four hours later crafted a four-page affidavit
loaded with false allegations framed in a scathing ad hominem attack.
Similarly prejudicial was the trial court’s denial of any inquiry as to
why Setoguchi told Deputy Duran that appellant pushed him, yet he “didn’t
want a police report written.” Only after his supervisor, Edward Ho, told
him “to prepare a document memorializing the incident while it was still
fresh in [his] memory” (2CT 203:26-28), Setoguchi wrote a declaration
recasting the “push” as a shove in a “violent manner” and as an
“unprovoked assault.” (2CT 202:14-15, 205:19.)
Finally, witness cross-examination would have established whether
appellant made any actual threats whatsoever concerning Setoguchi’s
safety. (None was specifically alleged in PUSD’s application for OSC and
TRO (1CT 55-58).)
Moreover, cross-examination would have been useful in determining
the exact basis for Setoguchi’s statement that he believed he and some
eight-five other “attorneys and support staff at [the] law firm, Atkinson,
Andelson, [et al]” were “in immediate danger” of appellant. Setoguchi
further believed that all the hundreds of “employees of [PUSD], including
Superintendent Diaz, and the witnesses of [PUSD] in connection with [the]
32
lawsuit” 20 were [also] in “immediate danger due to [appellant’s] violent and
vindictive disposition.” Once again the source of these statements evaded
cross-examination. (1RT 8:2-12.)
In Rushen v. Spain (1983) 464 U.S. 114, 119 [fn. omitted] (per
curiam], the U.S. Supreme Court stated that most constitutional rights
issues are “subject to harmless-error analysis…unless the deprivation, by its
very nature, cannot be harmless.” The same could be said here.
For example, in disallowing all cross-examination, the trial court had
only disputed ex parte statements on which to rely. PUSD used those
disputed and exaggerated statements to falsely portray appellant as a
belligerent attorney prone to rampaging pell-mell through courtroom
hallways, perpetrating random acts of violence on total strangers and even
against other attorneys without provocation. 21 Appellant’s discipline-free
record during twenty-seven years as a member of the California State Bar
and no history of violent behavior, should have triggered leave to
cross-examine not only to test the credibility of the witnesses, but to
establish if their statements were even their own. In short, the denial of
appellant’s right to confront all witnesses under the Sixth Amendment
20
Respondent is referring to the pending lawsuit involving appellant’s client in case
number GC 042707, which as mentioned, has no relation to the instant injunction action
although it has the same case number.
21
(2CT 122:4-5, 204:8.)
33
cannot be harmless error. (Rushen v. Spain, supra.)
In view of the prejudicial nature of the error, the huge impact of
inflammatory ex parte statements on the trier of fact, and the probable
effect on the outcome of the hearing resulting from a disallowance of all
cross-examination of witnesses as to the matter at issue, the error should not
be found harmless and the order should be vacated.
II. THE TRIAL COURT’S RULING IS ERRONEOUS

BECAUSE THE RECORD LACKS EVIDENCE APPELLANT
COMMITTED AN UNLAWFUL ACT AGAINST ANY PUSD
EMPLOYEE OR IS LIKELY TO COMMIT AN ACT OF
VIOLENCE AGAINST ANY PUSD EMPLOYEE.
A. Procedural and Factual Summary
On February 26, 2010 the trial court issued an injunction against
appellant in favor of PUSD. (2CT 274-275.) PUSD is a public entity. (1CT
10:11.) PUSD sought and obtained said injunction on behalf of Jon
Setoguchi who is not an employee of PUSD. (1CT 61:2-4.)
In its application for a TRO and OSC re preliminary injunction, and
in PUSD Superintendent, Edwin Diaz’ declaration, PUSD did not allege
that appellant had any contact with any PUSD employee. (1CT 55-58, 106-
107.)
Appellant is the attorney of record for the defendant in Pasadena
34
Unified School District v. Mark Kingsbury, et al., filed April 6, 2009, case
no. GC 042707. (1CT 10.)
In connection with this issue, appellant challenges the trial courts

findings of fact. “When the findings of fact are challenged on appeal, we
are bound by the substantial evidence rule, which requires us to review the
entire record to determine whether substantial evidence supports the
appealed judgment.” (Donovan v. Poway Unified School Dist. 167 Cal.
App. 4th 567 citing Winograd v. American Broadcasting Co. (1998) 68
Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].)” The standard of review is,
therefore, that of substantial evidence.
C. The Error
In Scripps Health v. Marin 72 Cal. App. 4th 324 (Cal. App. 4th Dist.
1999), the Court explained:
Code of Civil Procedure section 527.8 was enacted in
1994 to establish parallel provisions to section 527.6.
It authorized any employer to pursue a TRO and an
injunction on behalf of its employees to prevent
threats or acts of violence by either another employee
or third person. .... Section 527.8 was thus intended to
enable employers to seek the same remedy for its
employees as section 527.6 provides for natural
persons. The express intent of the author of the
legislation was to address the growing phenomenon in
California of workplace violence by providing
employers with injunctive relief so as to prevent such
acts of workplace violence. (Sen. Rules Com., 3d
reading analysis of Assem. Bill No. 68 (1993-1994
First Ex. Sess.)
(Italics in the original.)
Inasmuch as the instant civil harassment action was brought by an
35
entity and not a natural person, the controlling statute, as evidenced by the
foregoing summary of legislative intent, is section 527.8, subdivision (a),
which, in relevant part, states:
“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....” (Emphasis added.)
The only person named in the injunction as allegedly needing
protection from appellant is Setoguchi. (2CT 274-275.) However, as the
record shows, Setoguchi is not a PUSD employee. (1CT 61:2-4.)
In that regard, there is no evidence in the record that appellant has
ever had any contact with any PUSD employee and there is no evidence of
any threats of violence by appellant toward any PUSD employee at any
time and none was alleged in PUSD’s TRO application or in any
declaration. (1CT 55-58, 61-64.)
Nevertheless, as evidence of future harm, PUSD provided the
declarations of Rubino, Diaz and Ammermon. These declarants did not
witness the altercation and have never had contact22 with appellant. (2CT
22
The exception is Rubino, with whom appellant had a uneventful telephone
conversation in August of 2009. (1CT 95:8-11.)
36
217-218, 219-220, 221.) Their statements are based on hearsay and are
therefore inadmissible. (Evid. Code, § 1200, subd. (b).)
Furthermore, Rubino is not a PUSD employee. (2CT 217:2-4.)
Ammermon is a former consultant for PUSD and is currently not a PUSD
employee. (2CT 221:2-6.) Diaz is a PUSD employee, but appellant has
never met or had contact with Diaz. (2CT 219-220.)
Yet in his declaration, Rubino stated: “Based on my personal
experiences with [appellant], I believe that he is capable of violence and I
am apprehensive for my safety, and for the safety of Mr. Setoguchi, the
attorneys and support staff at Atkinson, Andelson, Loya, Ruud & Romo,
and the employees and witnesses of the [PUSD], including Edwin Diaz and
Michael Ammermon.” (2CT 218 2-5.) Diaz stated in his declaration:
“Based upon the foregoing, I believe that [appellant] is an immediate threat
to my safety, and to the safety of the employees and students of [PUSD.]” 23
(Emphasis added.) Ammermon, in his declaration stated: “I believe
[appellant] is a threat to my safety...” (2CT 221:21-22.)
The foregoing statements are not substantial evidence of a threat of
future harm for several reasons. First, there has been no alleged prior
23
Interesting side note: Despite this perceived threat to the students, PUSD,
in its application for a restraining order and injunction against appellant, did
not see fit to include the students as needing protection. (1CT 55-58.)
37
contact with any PUSD employee. (1CT 55-58.) Second, there are no
allegations that appellant made any actual threats to any PUSD employee at
any time. (1CT 55-58, 106-107.) Third, the injunction protects only
Setoguchi and he is not a PUSD employee. (2CT 274-275;1CT 61:2-4.)
Appellant could find no authority supporting the theory that an alleged
unlawful act against a non-employee can be used as evidence of a threat of
future harm to an employee when the injunction has been sought by an
entity that is not a natural person.
Moreover, without evidence of an unlawful act against a PUSD
employee or an actual threat of harm by appellant against any of its
employees, it is not likely that a wrongful act would occur. An injunction is
authorized only when it appears that wrongful acts are likely to recur.
(Scripps Health, supra, 72 Cal.App.4th at pp. 332–333.)
Furthermore, as the trial court could have reasonably inferred from
the record, the foregoing statements flowed from the one-time altercation
on January 28 between Setoguchi and appellant. “[C]odified public policy
[imposes] injunctive relief only where there is a threat of future harm to the
plaintiff, not as a remedy for a single past incident.” (Scripps Health,
supra.) Here, there was no allegation of a ‘past incident’ against a PUSD
employee. In any event, a preliminary injunction will not issue to prohibit
an action that has already been completed. (McManus v. KPAL
38
Broadcasting Corp. 182 CA2d 558, 563, 6 CR 441 (1960).)
Accordingly the injunction violates public policy by being imposed
under facts which did not establish a threat of future harm to any employee
of PUSD. (See Scripps Health, supra.)
In Scripps Health, the employer petitioned for injunctive relief on
behalf of an employee under section 527.8 after an altercation in which the
defendant pulled a door open, striking the staff member with the door and
pushing her to the wall. The trial court imposed a three-year permanent
injunction against [defendant] who appealed, “[contending] that the
injunction against him violates the codified public policy of imposing
injunctive relief only where there is a threat of future harm to the plaintiff,
not as a remedy for a single past incident.” (Scripps Health, supra.) The
Fourth District agreed and reversed the trial court finding that “there is no
evidence establishing [defendant] is likely to commit further acts of
violence against Scripps Health employees.” (Ibid.)
The Court in Scripps Health added: “Consistent with our
interpretation of section 527.8, subdivision (f), the permanent injunction
could only issue here if the evidentiary record establishes the reasonable
probability [defendant's] wrongful acts would be repeated in the future.
There is no such evidence.” (Ibid.) The same is true here with the key
difference that the alleged unlawful act was alleged to have been committed
39
against a person who is not the petitioner’s employee and therefore not
entitled to have relief granted on his behalf in the first place. (Code Civ
Proc., § 527.8, subd. (a).)
In addition, a hearsay account of a one-time, non-injury altercation
involving a non-employee could not be reasonably construed as substantial
evidence of future harm to a PUSD employee because of, among other
reasons, a lack of nexus required by section 527.8, subdivision (a). (“Any
employer whose employee has suffered…a credible threat of violence...”)
(Ibid.) (Emphasis added.)
In that regard, the Court in Scripps Health explained:
...the express codified purpose of a prohibitory

injunction is to prevent future harm to the applicant by
ordering the defendant to refrain from doing a
particular act. (Civ. Code, § 3420; Code Civ. Proc., §
525.) Consequently, injunctive relief lies only to
prevent threatened injury and has no application to
wrongs that have been completed. (Gold v. Los
Angeles Democratic League (1975) 49 Cal. App. 3d
365, 372 [122 Cal. Rptr. 732].) It should neither serve
as punishment for past acts, nor be exercised in the
absence of any evidence establishing the reasonable
probability the acts will be repeated in the future. ...
(Cisneros v. U.D. Registry, Inc. (1995) 39 Cal. App.
4th 548, 574 [46 Cal. Rptr. 2d 233]; [Citation.] ...
“Thus, to authorize the issuance of an injunction, it
must appear with reasonable certainty that the
wrongful acts will be continued or repeated.” (Gold v.
Los Angeles Democratic League, supra, 49 Cal. App.
3d at p. 372.)
( Id. at pp. 332-333.)
40
Accordingly, without evidence of either a past wrongful act against a
PUSD employee, or a threat of a wrongful act, there could be no finding of
a reasonable probability that appellant would commit a wrongful act in the
future. Analogous to the finding in Scripps Health, supra, the injunction
here was improperly issued.
This action has likely cost the taxpayers tens of thousands of dollars
in legal fees because a public entity brought a harassment action on behalf
of a non-employee in violation of public policy which requires the
protected person to be an employee of that entity. (Code Civ. Proc., §
527.8, subd. (a).) Public policy was further violated because the evidentiary
record does not establish the reasonable probability the alleged wrongful act
would be committed against a PUSD employee in the future when there
was no evidence of a wrongful act against a PUSD employee in the past,
and not a single documented threat of violence by appellant. (Code Civ.
Proc., § 527.8, subd. (f).)
In view of the foregoing, the error is prejudicial. Furthermore,
because of above-described violations of public policy, the order should be
vacated.
....
....
41
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN GRANTING PUSD INJUNCTIVE RELIEF BECAUSE
THE COURT’S ORDER VIOLATES PUBLIC POLICY
CREATED BY THE ENACTMENT OF CODE OF CIVIL
PROCEDURE SECTION 527.8, SUBDIVISION (a).
A. Factual and Procedural Summary
As set forth, supra, the instant injunction arose out of one-time
altercation and an inadvertent push on the arm of Setoguchi. (1CT 99 ¶ 3.)
The undisputed facts concerning this issue are these:
1. PUSD is a public entity. (1CT 10:11-12.)
2. PUSD sought and obtained a TRO and preliminary injunction
based on Code of Civil Procedure sections 527 and/or 527.6. (1CT
55:24-56:2) enjoining appellant from harassing Setoguchi. (2CT 274-275.)
PUSD also filed a judicial council form CH-100, Request for Orders to
Stop Harassment referenced in its moving papers. (1CT 56:2, 246:28-
247:1.)
4. Mr. Setoguchi is not an employee of PUSD. (1CT 61:3-6,
2CT 232:21-233:6.)
The issue here as to whether the trial court correctly applied the
anti-harassment statute in granting injunctive relief is a question of law.
Review is therefore de novo. (North Pacifica LLC v. California Coastal
42
Com.) 166 Cal. App. 4th 1416 (Cal. App. 2d Dist. 2008).
C. The Error
PUSD brought its civil harassment action under sections 527 and/or
527.6. (1CT 55:24-56:2.) Notwithstanding that the trial court granted PUSD
injunctive relief, neither statute applied in this case. Code of Civil
Procedure section 527 starting with subdivision. (a) provides: “A
preliminary injunction may be granted at any time before judgment upon a
verified complaint, or upon affidavits if the complaint in the one case, or
the affidavits in the other, show satisfactorily that sufficient grounds exist
therefor. No preliminary injunction shall be granted without notice to the
opposing party.”
The trial court could not properly grant relief under this statute
because there was no complaint upon which a preliminary injunction could
have issued. PUSD used the case number from a pending complaint,
GC042707, however appellant is not a party to that case; he is the attorney
representing a pro bono defendant in that case. Furthermore, the facts in
that case are unrelated to PUSD’s instant harassment action which was filed
in Dept P, instead of under its own case number in Dept. A, where
injunction matters are normally heard. In addition, nothing in section 527
gives the trial court authority to grant civil harassment injunctive relief to a
public entity [PUSD] on behalf of a non-employee [Setoguchi].
43
Section 527.6 is equally unavailing. Beginning with subdivision (a),
it states:
A person who has suffered harassment as defined in

subdivision (b) may seek a temporary restraining order
and an injunction prohibiting harassment as provided in
this section. (b) For the purposes of this section,
“harassment” is unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms,
annoys, or harasses the person, and that serves no
legitimate purpose. The course of conduct must be such
as would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial
emotional distress to the plaintiff.
(Ibid.)
Again, the trial court could not properly grant relief under this statute
because PUSD not a person. (Diamond View v. Herz 180 Cal.App.3d 612
[Cal. App. 3d Dist. 1986].) Government Code section 7260 states:
(a) “Public entity” includes the state, the Regents of

the University of California, a county, city, city and
county, district, public authority, public agency, and
any other political subdivision or public corporation
in the state... (b) “Person” means any individual,
partnership, corporation, limited liability company, or
association.
In discussing the purpose of section 527.6, subd. (a), the Court in
Smith v. Silvey (1983) 149 Cal.App.3d 400 [197 Cal.Rptr. 15], explained a
part of that history: “An analysis prepared for the Senate Committee on
Judiciary (1977-1978 Reg. Sess. -- Assem. Bill No. 3093) saw the purpose
as follows: ... [t]his bill would establish an expedited procedure for
44
enjoining acts of ‘harassment,’ as defined, including the use of temporary
restraining orders. ... [para.] The purpose of the bill is to provide quick
relief to harassed persons.” ( Id., at p. 405.)
Moreover, the statute itself requires that the harassment be directed
against ‘a specific person.’(Code Civ. Proc., § 527.6, subd. (b).) “This
language also strongly suggests that the Legislature intended that the victim
of the harassment be an individual human being rather than an artificial
legal entity.” (Diamond View, supra, 180 Cal.App.3d 612.)
In addition, the harassing course of conduct “must be such as would
cause a reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff.” (Code Civ.
Proc., § 527.6, subd. (b).) “These are emotional states exhibited by natural
persons, not by legal fictions. Consequently, in the context of its usage in
this statute, it appears that the term ‘person’ was meant to refer only to
natural persons, and not to legal entities.”
Therefore, and as previously discussed, the applicable harassment
statute for legal or public entities acting on behalf of a person is found in
Code of Civil Procedure section 527.8 subdivision (a) which states:
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
45
and an injunction on behalf of the employee....
(Emphasis added.)
However, the trial court had no authority to grant relief under section
527.8 because Setoguchi is not an employee of PUSD. (1CT 61:3-6, 2CT
232:21-233:6.) “For purposes of this section only, ‘employee’ also includes
a volunteer or independent contractor who performs services for the
employer at the employer’s worksite.”(Civ. Proc. § 527.8, subd. (d), italics
added.)
Here, Setoguchi is an employee and associate attorney of the law
firm Atkinson, Andelson, et al, a “professional corporation.” (1CT 61:2-6.)
The alleged unlawful act was against attorney Setoguchi, not against the
law firm or against any employee at PUSD. (1CT 55-58.)
Furthermore, Setoguchi cannot be considered an ‘employee’ of
PUSD because he does not provide his services at PUSD’s worksite. (Code
Civ. Proc. § 527.8 (d).)24
Moreover, the alleged assault did not take place at PUSD’s worksite,
but rather in a courthouse, which is not PUSD’s worksite and cannot be
reasonably construed as such. Otherwise, any location would be PUSD’s
24
This section, in relevant part, provides: “For purposes of this section only,
‘employee’ also includes a volunteer or independent contractor who performs
services for the employer at the employer's worksite.” (Code Civ. Proc. § 527.8 (d).)
46
worksite rendering such an interpretation contrary to Code Civ. Proc. §
527.8 (d), which limits where an alleged act of “unlawful violence” must
take place to give standing to PUSD as an employer.
Finally the trial court could not have properly relied on Code of
Civil Procedure section 526 as a basis for granting relief because again,
there is no underlying complaint to which appellant is a party. (Code Civ.
Proc., § 526 subd., (a).) (1CT 10.)
Moreover, the alleged incident involved Setoguchi and appellant and
has nothing to do with PUSD. (1CT 61-64, 100-101.) Therefore PUSD has
no standing in this case because PUSD has no interests here to protect.
Without standing it may not obtain injunctive relief. (Common Cause v.
Board of Supervisors 49 C3d 432, 439, 261 CR 574 (1989).) The fact that
PUSD is the plaintiff in an unrelated case with the same case number does
not give it standing here. It could have standing in this case only if the
victim of the alleged unlawful act were a PUSD employee. Accordingly, the
trial court exceeded its authority in granting relief to a party with no
standing under either of the two civil harassments statues. (Code Civ.
Proc., §§ 527.6, subd., (a).) and 527.8, subd. (a).
No statute or case law exists to support PUSD’s notion that it may
obtain injunction relief on behalf of any member of the world at large. If the
47
trial court’s ruling is left undisturbed, it would set an unsavory precedent
nullifying Code of Civil Procedure section 527.8 subdivision (a), thus
eroding public confidence in the superior court system and further
burdening cash-strapped public entities suddenly finding themselves footing
the bill for anti-harassment injunctions on behalf of non-employees.
Therefore the error is not harmless.
Moreover, the foregoing-described misapplication of the law has
damaged appellant’s otherwise unblemished reputation in the legal
profession and has delayed the case of appellant’s pro bono client in GC
042707.
IV. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE

INJUNCTION BECAUSE EVIDENCE IS LACKING TO
SUPPORT ALL THE REQUISITE ELEMENTS OF THE
WILLFUL HARASSMENT STATUTE (CODE CIV. PROC.,
§ 527.6), WHICH WAS THE APPARENT BASIS FOR THE
TRIAL COURT’S INJUNCTION.
As set forth, supra, PUSD’s injunction application was brought
“pursuant to Code of Civil Procedure [sections] 527 and/or 527.6.” (1CT
55:26-56:1-4.). Notwithstanding that PUSD is precluded from obtaining
relief under either of those statutes as previously discussed, this case lacks
substantial evidence to support a finding of the requisite elements of
harassment under Code of Civil Procedure section 527.6.
The Court in Diamond View, supra, 180 Cal.App.3d 612, 616 stated:
48
“In 1978 the Legislature enacted Code of Civil Procedure section 527.6, a
special statute designed to afford protection against harassment. (Stats.
1978, ch. 1307, § 2, p. 4294.) This statute authorizes a ‘person who has
suffered harassment’ to obtain a temporary restraining order and injunction
against the harassing conduct and provides an expedited procedure to obtain
such an injunction. [Citation.]” (Ibid., fn. omitted.)
Section 527.6 defines the elements of unlawful harassment as
follows: (1) “a knowing and willful course of conduct” entailing a ‘pattern’
of ‘a series of acts over a period of time, however short, evidencing a
continuity of purpose”; (2) “directed at a specific person’; (3) ‘which
seriously alarms, annoys, or harasses the person’; (4) ‘which serves no
legitimate purpose’; (5) which ‘would cause a reasonable person to suffer
substantial emotional distress’ and ‘actually cause[s] substantial emotional
distress to the plaintiff’; and (6) which is not a [c]onstitutionally protected
activity.’” (Code Civ. Proc., § 527.6, subd. (b).)
A. Standard of Review
The question here is whether the evidence supports a factual finding
by the trial court that appellant committed unlawful harassment based upon
his actions during a one-time altercation in a courthouse hallway. Hence,
the standard of review is that of substantial evidence. (Roby v. McKesson
Corp. 146 Cal. App. 4th 63 (Cal. App. 3d Dist. 2006) (See Hope v.
49
California Youth Authority (2005) 134 Cal.App.4th 577, 589 [36 Cal. Rptr.
3d 154](Hope).) The Roby Court explained:
In applying the substantial evidence test, “ ‘ “the

power of an appellate court begins and ends with
the determination as to whether there is any
substantial evidence contradicted or uncontradicted
which will support the finding of fact.” ’ ” (Franck
v. Polaris E-Z Go Div. of Textron, Inc. (1984) 157
Cal. App. 3d 1107, 1114 [204 Cal. Rptr. 321],
quoting Foreman & Clark Corp. v. Fallon (1971) 3
Cal.3d 875, 881 [92 Cal. Rptr. 162, 479 P.2d 362].)
However, “ ‘[s]ubstantial evidence … is not syn-
onymous with “any” evidence.’ ....The focus is on
the quality, rather than the quantity, of the evidence.
‘Very little solid evidence may be “substantial,”
while a lot of extremely weak evidence might be
“insubstantial.” ’ [Citation.] .... Speculation or
conjecture alone is not substantial evidence.”
(Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 651 [51 Cal.Rptr.2d 907].)
(Roby, supra, 146 Cal.App.4th 63.)
In addition the Court in Bookout v. Nielsen 155 Cal.App.4th 1131
(Cal. App.4th Dist. 2007) held that “...injunctions issued under Code of
Civil Procedure sections 527.6 and 527.8, which prohibit civil harassment,
are reviewed to determine whether the necessary factual findings are
supported by substantial evidence. (USS-Posco Industries v. Edwards
(2003) 111 Cal.App.4th 436, 444 [4 Cal.Rptr. 3d 54]; Schild v. Rubin
(1991) 232 Cal.App.3d 755, 762 [283 Cal.Rptr. 533].)” (Ibid.)
50
B. The Error
PUSD, on behalf of its outside attorney, Jon Setoguchi, alleged only
one act of unlawful violence, a one-time “push” (1CT 99, ¶3), which
Setoguchi later in his declaration revised 25 to a “shove in a violent manner.”
(1CT 61:14-15.) A single act is not sufficient, an ongoing course of conduct
is required. (Leydon v. Alexander (1989)212 CA3d 1, 4-5, 260 CR 253,
254-255.)
1. No Evidence of a Course of Conduct
A “course of conduct” is defined as “a series of acts over a period of
time, however short, evidencing a continuity of purpose...” (Code Civ.
Proc. §527.6 (b)(3).)
Here there is no evidence of an ongoing course of conduct, only a
single incident -- that occurring on January 28-- and that is insufficient to
meet the statutory requirement of a course of conduct within the meaning of
Leydon, supra. Deputy Duran’s incident report fails to even hint at a course
of conduct. (1CT 99-101.) In addition there is nothing in the record
indicating that appellant had contact with Setoguchi before or after the date
of the altercation on January 28, 2010.
Nevertheless PUSD alleged that “[appellant] was standing in the
25
The factual revision occurred after Setoguchi’s supervisor, Edward Ho, suggested
Setoguchi prepare a document memorializing the incident....” (1CT 62:26-28.)
51
corner looking at [the] jurors in an intimidating manner...” (1CT 52:4-5.),
but that is not evidence of a course of conduct against Setoguchi because
harassment must consist of, inter alia, a course of conduct directed against
a specific person. (Code Civ. Proc., § 527.6 (b).) (Emphasis added.) Absent
a specific person as the receiver of the alleged multiple unlawful acts, there
is no course of conduct, and therefore no substantial evidence supporting a
finding of harassment. (Leydon, supra, 212 CA3d 1.)
In his declaration, Setoguchi made vague and ambiguous allegations
that appellant “hovered over [him] in a threatening manner,” and that
appellant “responded in a threatening manner, ‘What are you going to
(sic)?)’ ” (1CT 61:26-27, 62:2-3, 62:17.) However respondent failed to
provide any evidence as to what made appellant’s alleged “hovering” and
“manner” a threat.
Another attempt by PUSD to allege a course of conduct is found in
the declaration of Michael Rubino wherein he stated:
“[Appellant] has been extremely difficult to deal with. He has sent
hostile letters.” (1CT 113:12-13.) However, no such hostile letters were
before the trial court as evidence of harassment. In any event, Mr. Rubino’s
allegations are irrelevant because those alleged acts were not directed at
Setoguchi on whose behalf the injunction was issued.
In addition, there is no evidence that appellant has had any contact
52
with any employee of PUSD including Superintendent Diaz, as previously
discussed.
Accordingly, there is no evidence of a ‘course of conduct,’ an
element required for harassment to exist as held in Leydon, supra.
What remains is an allegation of a “shove in a violent manner”
which PUSD’s own evidence 26 coupled with the incident report27 showed
was a one-time, non-injury act absent any allegation that Setoguchi was
harassed by any conduct other than that alleged to have occurred on
January 28, 2010. This is insufficient evidence on which a finding of
harassment could be based. (Leydon, supra, 212 CA3d 1, 4-5, 260.)
Therefore, the trial court erred in granting the injunction.
2. No Evidence of a Threat of Future Harm
In Russell v. Douvan 28 112 CA 4th 399, 5 CR 3d 137, (2003), the
court held that a single previous act of alleged unlawful violence does not
26
(1CT 61-64.)
27
(1CT 99-100.)
28
Russell is highly analogous. Nearly a mirror image of the case in this
petition, it, too, involved mutually uninvited physical, but harmless contact
between two opposing attorneys outside a courtroom. Specifically, Mr.
Douvan followed Mr. Russell into an elevator where he forcefully grabbed
Mr. Russell’s arm. Russell filed a petition for an injunction prohibiting
harassment under Code of Civil Procedure section 527.6. Following an
evidentiary hearing, the court concluded that Douvan committed a battery
and issued an injunction, which was reversed on appeal.
53
justify issuance of an injunction, absent a finding that future harm is highly
probable. (Emphasis added.)
Concerning the issue of a threat future harm, PUSD’s evidence
consists of Setoguchi’s statement made on belief in his declaration wherein
he stated:
“Based upon appellant’s hostile and belligerent behavior in this
lawsuit, 29 coupled with his unprovoked assault on me on January 28, 2010,
I [Setoguchi] believe that appellant is a violent person and that he poses a
serious threat to my safety, and to the safety of the attorneys and support
staff in my office, and to the PUSD, including Superintendent Diaz.” (1CT
63:7-10.)
First, there is no evidence of any previous acts that PUSD
characterized as “hostile and belligerent behavior.” Moreover, there is no
evidence of “hostile and belligerent behavior in this lawsuit” because
appellant had no prior contact with Setoguchi before January 28th, 2010 or
thereafter. In fact, there is no evidence that appellant has had any contact
with any member of Setoguchi’s law firm except one telephone call30 with
29
This apparently refers to the lawsuit involving appellant’s client in PUSD
v. Kingsbury, case number GC042707 referenced here in the Statement of the
Case.
30
That telephone call was in connection with the lawsuit referenced supra.
54
Michael Rubino in August of 2009 which transpired without incident. (1CT
95:6-13.)
Moreover, appellant informed PUSD’s attorneys in a letter dated
January 8, 2010 that, due to their discovery abuses and excessive faxing, all
“face to face” meetings are canceled and that all communication from said
attorneys must be in writing. (2CT 169 ¶ 2, 170 ¶ 3-item 1.) That letter
made it clear: appellant desired to have as little contact as possible with
opposing counsel.
More importantly, PUSD did not allege that appellant made any
actual verbal or physical threats of violence that would cause a reasonable
person to fear that future harm was highly probable as required by the
dictates of Russell, supra.
Accordingly there is no substantial evidence to support a finding of
harassment based on a threat of future harm.
3. No Evidence of Substantial Emotional Distress
Section 527.6 defines the elements of unlawful harassment as
follows: (1)“a knowing and willful course of conduct” ... (5) which ‘would
cause a reasonable person to suffer substantial emotional distress’ and
‘actually cause[s] substantial emotional distress to the plaintiff’...” (Code
Civ. Proc., § 527.6 (b).)
Here, PUSD has provided insufficient evidence that appellant’s
55
conduct would cause a reasonable person to suffer substantial emotional
distress.
In his declaration, Setoguchi stated: “I am pressing criminal charges
against [appellant] for his unprovoked assault against me on January 28,
2010. I am fearful that once [appellant] learns of this, he will attempt to
retaliate against me because of his vindictive and deceitful disposition. This
causes me great concern and distress, and I have been unable to sleep well
since the date of the incident.” (1CT 63:16-19.) However, the record shows
no evidence that Setoguchi received medical treatment for his alleged
distress.
Moreover, Setoguchi’s declaration was the only document before the
trial court where he alleged “great concern and distress” for his own safety.
However, according to Setoguchi’s declaration, the source of the alleged
distress was Setoguchi’s alleged fear of retaliation for pressing criminal
charges against appellant. (1CT 63:17-19.) Yet Setoguchi apparently chose
to subject himself to that fear and the resulting distress when he decided to
press criminal charges which ultimately went nowhere. In any case, the
alleged distress was based on the fear of the vague possibility of a future act
instead of as the result of “a knowing and willful course of conduct” which
PUSD and Setoguchi never alleged, let alone showed by clear and
56
convincing proof as required by section 527.6, subd. (d). 31
Furthermore, the evidence in Setoguchi’s declaration shows that said
distress derived not from anything appellant said or did, but rather from
Setoguchi’s alleged perception that appellant has a “vindictive and deceitful
disposition” that would cause appellant to retaliate. (1CT 63:18.) However
the record lacks any substantial evidence to support this perception ‘would
cause a reasonable person to suffer substantial emotional distress, and ...
actually cause[d] substantial emotional distress to [Setoguchi.]’ (Code Civ.
Proc., § 527.6, subd. (b).)
As noted in Schild v. Rubin 232 Cal. App. 3d 755 (Cal. App. 2d Dist.
1991), sections 527.6 and 527.8 do not define the phrase ‘substantial
emotional distress.’ The Schild Court however, explained: “…in the
analogous context of the tort of intentional infliction of emotional distress,
the similar phrase ‘severe emotional distress’ means highly unpleasant
mental suffering or anguish ‘from socially unacceptable conduct’ (Thing v.
La Chusa (1989) 48 Cal.3d 644, 648 [257 Cal.Rptr. 865, 771 P.2d 814]),
which entails such intense, enduring and nontrivial emotional distress that
‘no reasonable [person] in a civilized society should be expected to endure
31
“If the judge finds by clear and convincing evidence that unlawful harass-
ment exists, an injunction shall issue prohibiting the harassment.” (Code Civ.
Proc., § 527.6 (d).)
57
it.’ ” (Ibid.) ( citing Fletcher v. Western National Life Ins. Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78, 47 A.L.R.3d 286]; see BAJI No.
12.73.) The Schild Court further explained: “A reasonable person must
realize that complete emotional tranquility is seldom attainable, and some
degree of transitory emotional distress is the natural consequence of living
among other people in an urban or suburban environment.” [Citation.]
(Ibid.) (See Fletcher v. Western National Life Ins. Co., supra, 10
Cal.App.3d at p. 397.)
Appellant submits that a jostle in a crowded public corridor is the
“natural consequence of living among other people in an urban or suburban
environment” within the meaning of Schild and Fletcher, supra.
Therefore credibility is strained to the breaking point at the notion
that a person suffering a “push,” which Setoguchi first describes in Deputy
Duran’s incident report (1CT 99-100), coupled with an unsubstantiated fear
of retaliation, ‘would cause a reasonable person to suffer substantial
emotional distress’ and ‘actually caused substantial emotional distress to
[Setoguchi]’ within the meaning of section 527.6, subdivision (b).
C. The Error Requires Reversal
As shown above, the record lacks sufficient evidence to support a
finding of harassment warranting injunctive relief. In addition, the record
lacks substantial evidence that Setoguchi suffered emotional damage
58
resulting from the fear that appellant’s alleged vindictive and deceitful
disposition would lead him to retaliate for Setoguchi’s failed attempt to
press criminal charges.
The erroneous finding of harassment is not harmless because the
injunction could not have properly issued with an error based on
insufficient evidence. Furthermore, misapplication of the harassment statute
is a matter of public interest warranting reversal.
....
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....
....
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59
CONCLUSION
The trial court in this case denied appellant his right to confront
witnesses (U.S. Const. 6 th Amend., and to due process (U.S. Const. 14 th
Amend., and within the meaning of Schraer, supra.)
In addition, appellant respectfully submits to this Court that
respondent Pasadena Unified School District and its outside counsel have
subverted the harassment statutes and misused public funds by prosecuting
an action in which PUSD has no standing and from which it is barred by
statute. Consequently the trial court, in granting injunctive relief to PUSD,
has violated pubic policy as set forth above.
For the foregoing reasons, appellant respectfully requests this Court
to direct the court below to vacate its order granting injunctive relief as
against appellant which order was filed on March 29, 2010.
Dated: December 13, 2010 Respectfully submitted,
Glenn F. Beckett, SBN# 107662

Attorney in Propria Persona
60
VERIFICATION
I, the undersigned, say:
I am the appellant in propria persona in this action. I am familiar
with the facts alleged in this motion for calendar preference. I have read the
above document and know its contents. All facts alleged are true of my own
personal knowledge.
I declare under penalty of perjury, that the foregoing is true and
correct and that this verification was executed on December 13, 2010 at
Arcadia, California.
Glenn F. Beckett
61
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, Rule 8.204(c)(1))
This opening brief contains 12,010 words per computer-generated word
count.
Dated: December 13, 2010.
Glenn F. Beckett
62
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California and

over the age of eighteen years. I am not a party to the within action. My
business address is 910 N. Santa Anita Avenue, Arcadia, California 91006.
I am readily familiar with the practice of attorney Glenn F. Beckett

for the collection and processing of correspondence for mailing within the
United States Postal Service. In the ordinary course of business, such
correspondence would be deposited with the United States Postal Service,
with postage thereon fully prepaid, the same day I submit it for collection
and processing for mailing. I served the document listed below by placing a
true copy thereof in a sealed envelope with postage thereon fully prepaid,
addressed as follows (except for the Supreme Court, to which the document
was transmitted electronically):
Date Served: December 13, 2010

Documents Served: Appellant’s Opening Brief
Parties served:
Terry T. Tao, Esq. Hon. Jan Pluim
Michael J. Rubino, Esq. Los Angeles Superior Court
Jon M. Setoguchi, Esq. 300 East Walnut Avenue, Dept P
ATKINSON, ANDELSON, Pasadena, CA 91101
LOYA, RUDD & ROMO, (Trial Judge)
12800 Center Court Drive, Suite
300 Supreme Court of California
Cerritos, CA 90703 50 McAllister Street Rm 1295
(Attorneys for Real Party in San Francisco, CA 94102-4797
Interest, Pasadena Unified School (Transmitted electronically)
District)
(BY MAIL) I caused such envelope with postage thereon fully prepaid to
be placed in the United States mail at Arcadia, California.
(OTHER) To Supreme Court, document transmitted electronically.
Executed on December 13, 2010, at Arcadia, California.
(State) I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
__________________________
Rosemarie Witt

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IN THE COURT OF APPEAL OF THE STATE OF

GLENN F. BECKETT, ) COA No. B224197

APPEAL FROM THE ORDER OF

APPELLANT’S OPENING BRIEF

Glenn F. Beckett, SBN 107662

Attorney In Propria Persona

APPELLANT’S OPENING BRIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Appellant’s Version of the Facts. . . . . . . . . . . . . . . . . . . . . . . . 8

B. Respondent’s Version of the Facts. . . . . . . . . . . . . . . . . . . . . . 10

C. The Undisputed Facts of The Case. . . . . . . . . . . . . . . . . . . . . . 13

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

A. Factual and Procedural Summary.. . . . . . . . . . . . . . . . . . . . 17

II. THE TRIAL COURT’S RULING IS ERRONEOUS

A. Procedural and Factual Summary.. . . . . . . . . . . . . . . . . . . . 34

D. The Error Requires Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . 41

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

A. Factual and Procedural Summary.. . . . . . . . . . . . . . . . . . . . 42

D. The Error Requires Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . 47

IV. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE

1. No Evidence of a Course of Conduct. . . . . . . . . . . . . 51

2. No Evidence of a Threat of Future Harm. . . . . . . . . . 53

3. No Evidence of Substantial Emotional Distress.. . . . 55

C. The Error Requires Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Adler v. Vaicius, 21 Cal. App.4th 1770 (Cal.App.2d Dist. 1993. . . . . 20, 21

Bookout v. Nielsen, 155 Cal.App.4th 1131

Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574

Common Cause v. Board of Supervisors, 49 Cal.3d 432

Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 524. . . . . . . . . . . . 24

Diamond View v. Herz, 180 Cal. App. 3d 612

Fletcher v. Western National Life Ins. Co. (1970)

Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881

Franck v. Polaris E-Z Go Div. of Textron, Inc. (1984)

Gold v. Los Angeles Democratic League (1975) 49

Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589

Nora v. Kaddo, 116 Cal.App.4th 1026

McManus v. KPAL Broadcasting Corp., 182 CA2d 558, 563,

North Pacifica LLC v. California Coastal Com., 166

Olive Proration etc. Committee v. Agricultural etc. Committee, 17 Cal.2d

People v. Manchetti, 29 Cal.2d 452, 459

People v. Redwine, 166 Cal.App.2d 371

Priestly v. Superior Court of San Francisco, 50 Cal.2d 812

Roby v. McKesson Corp., 146 Cal. App.4th 63

Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 [51

Russell v. Douvan, 112 Cal. App. 4th 399

Schild v. Rubin, 232 Cal. App. 3d 755

Schraer v. Berkeley Property Owners’ Ass’n, 207 Cal.App.3d 719

Scripps Health v. Marin 72 Cal. App. 4th 324

Smith v. Silvey (1983) 149 Cal.App.3d 400

USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444

Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632

Alford v. United States, 282 U.S. 687 (1931).. . . . . . . . . . . . . . . . . . . . . . 25

Brookhart v. Janis, 384 U.S. 1, 3 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . 26

Rushen v. Spain (1983) 464 U.S. 114, 119 (1983). . . . . . . . . . . . . . . . . . . 33

Smith v. Illinois, 390 U.S. 129 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Marbella, 73 F.3d 1508, 1513 (9th Cir. 1989). . . . . . . . . 19

Civ. Code, § 3420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Cal. Rules of Court, Rule § 8.204(a)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . 7

GLENN F. BECKETT, ) COA No. B224197

APPELLANT’S OPENING BRIEF

This is an appeal by Glenn F. Beckett (“appellant”), challenging an

order granting anti-harassment injunctive relief to Pasadena Unified School

District (“PUSD”) on behalf of its non-employee attorney, Jon Setoguchi

01 Appellant's Opening Brief Draft 6

01 Appellant's Opening Brief Draft 6