1 Filed 6/16/15 City of Roseville v. Zisk CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Placer)

CITY OF ROSEVILLE, Plaintiff and Respondent,

v. JOHN WILLIAM ZISK, Defendant and Appellant. C073496 (Super. Ct. No. S-CV-0032376)

Defendant John William Zisk appeals fro m an order granting a workplace violence restraining order to the City of Roseville (City) on behalf of its city manager, Ray Kerridge. (Code Civ. Proc., § 527.8.) 1 Zisk contends that ther e is insufficient evidence that he made a credible threat of violence, and the injunction impermissibly burdens his rights to petition government for redress of gr ievances and travel under the federal and
state Constitutions. We shall affirm the order.

1 Further undesignated statutory references are to the Code of Civil Procedure.2 FACTUAL AND PROCEDUR AL BACKGROUND For the past four decades, Zisk and hi s parents (now deceased) have been in a dispute with the City over certain real property. On January 3, 2013, Zisk sent a two- page, single-spaced e-mail to Kerridge expressing his extreme frustration over the City’s failure to resp ond to a list of complaints Zisk had provided to Kerridge and a purported offer by Kerridge to mediate that was subsequently revoked. After listing dozens of issues and actions by the City, many of which Zisk claimed were “beyond criminal,” Zisk stated: “ This is very ugly and will lead
to more national attention than recent school shootings. Please do not force me down this messy path that may consume more lives. ” (Italics added.) On January 16, 2013, the City initiated the instant action to obtain a temporary restraining order and injunction on behalf of Kerridge, alleging that Zisk made a credible threat of violence against Kerridge that woul d place a reasonable person in fear for his safety. The City submitted Kerridge’s declar ation in support of its petition. In his declaration, Kerridge explaine d that Zisk “has been invo lved in a longstanding battle against the City that began with his father – now deceased – regarding the City’s acquisition of certain real prope rty interests at or near 205 Thomas Street in Roseville, California . . . .” Zisk told Kerridge that he believes that the City is responsible for the deaths of his parents. Ke rridge understood Zisk’s reference to “ ‘recent school shootings’ ” in the January 3, 2013, e-mail to “refer to the mass shooting at the Sandy Hook Elementary School in Newton, Connecticut on December 14, 2012” and “considered his language to be very threatening.” Kerridge read e-mails Zisk sent to other City officials that contained what he considered to be “threatening language.” He reviewed an e-mail Zi sk sent to Assistant Planning Director Kevin Payne in May 2009, in which Zisk stat ed: “if they [(City officials)] are patronizing me, they are messing with the wrong person,” and “[i]f my life must end, it will not end like my parents. My children will not have this legacy. My3 methods will be different. . . . [¶] . . . [¶] . . . Please do not force me to do what we both will lose at.” Kerridge also reviewed an e-mail Zisk sent to then councilwoman Susan Rohan in August 2011, in which he stated: “Silence and stonewalling will not work anymore. Cannot take much more. Please help me understand be fore a war occurs.” Kerridge also was aware of an encounte r between Assistant City Manager John Sprague and Zisk at Costco in April 2010, which Sprague summari zed in an e-mail to Zisk. Among other things, Zi sk told Sprague about an a ttorney who did not represent Zisk’s father in a professional manner and stat ed that if he had been treated in this manner, he would have probably shot the attorney. While Spra gue did not feel threatened by Zisk, he said that Zisk “is very angry toward the City a nd very focused on trying to right what he believes are wrongs committed ag ainst his father, mother and family by the City of Roseville.” On January 17, 2013, the trial court issu ed a temporary restraining order which, among other things, prohibited Zisk from cont acting Kerridge “directly or indirectly, by any means” and required Zisk stay at leas t 150 yards away from Kerridge and Kerridge’s workplace (Roseville City Hall). On January 30, 2013, Zisk filed his res ponse to the petition, in which he denied doing the things described ther ein. Zisk submitted a decl aration in support of his response. In his declaration, Zisk claime d that Kerridge and City officials had “used statements in my e-mails to manufacture ‘credible evidence of a threat of violence’ ” and “simply want to avoid their duties as public of ficials to listen to and attempt to address the concerns and inquiries of a citizen of the community of Roseville.” He indicated that he is not a violent person and had no intention of carrying ou t any alleged threats. He summarized the long standing issues between himself and his family on the one hand, and the City on the other, and stated that he was on friendly terms with the recipients of
the various e-mails referenced in Kerridge’s declaration. He denied ever stating that he would shoot someone, explaining that he was re ferring to his father and not himself when4 speaking to Sprague at Costco. He said that his reference to “ ‘national attention’ . . . was taken completely out of context” and that his reference to “ ‘school shootings’ was in connection with my assertion th at my plight would lead to national attention, not to any threatened violence by me.” Prior to the hearing on the petition, the City submitted the declaration of Michael Doane, a lieutenant with the Roseville Police Department, in support of its petition. One of Doane’s primary responsibilities is overseei ng the City’s critical incident negotiations team, which “assess[es] threats in all critical incidents involving people in distress and
crisis situations.” He revi ewed various e-mails sent by Zisk “to determine whether the statements [contained ther ein] constitute a credible threat of violence to City employees.”
In addition to the e-mails refe renced in Kerridge’s declarati on, Doane reviewed an e-mail sent by Zisk to City Bikeway Planner Mike D our, in which Zisk explained that his father
“submitted truthful information a nd gave his concerns [regarding a bike trail] for over 35 years until it took his life. . . . For a caring, credible, man like my father whom told nothing but truth, his respect, character, and admiration were taken a dvantage of. I have lived this since I was 9 years of age. My methods will be different.” Doane also
reviewed an e-mail Zisk sent to Placer County Flood Control and Water Conservation District employee Carrie Diller in October 20 09, concerning a flood study, which stated in part: “People do wrong and say they are just doing their job even if it kills someone else. I hear it every day. This is wrong. Pe ople have a choice. Please be part of the truth
so this does not kill me too. And then my children.” Based on his training and experience, Doane opined that the statements contained in the e-mails he reviewed
“constitute a credible threat of violence a nd there is valid reason for concern.” He reasoned that Zisk’s “stress points appear to have progressed and worsened as they relate to his anger towards the City,” and that his be lief that the City is re sponsible for the death of his parents “is leading him to make st atements that are gradually becoming more threatening and violent.”5 On February 11, 2013, the trial court held a hearing on the City’s petition. The City submitted the matter on the pleadings, in cluding the declarations of Kerridge and
Doane. Zisk testified on his own behalf. He explained that a portion of his family’s property was “taken by a Condemnation Ju dgment many years ago.” After taking the property, the City failed to us e it for many years, which upset Zisk. The City eventually constructed a bike trail through the property, but according to Zisk, the trail also “crosses . . . [Zisk’s] property which was not subject to the condemnation suit.” While Zisk was upset, he denied making any threats of violen ce or intending to caus e harm to anyone. More particularly, he denied that he intended to imply in his e-mails that he was going to use violence or cause harm to anyone. Wh en asked what he meant when he said, “My methods will be different,” he explained that “[ t]he questions that [his father] presented to the City [were] . . . never . . . answered. An d they have never follo wed any due process. I am asking those same questions and I’m not getting anywhere. So I planned on bringing it to the people, to th e media, to higher authorities pe r se.” As for his dealings with Kerridge, he stated that he has only me t him twice, both times at Kerridge’s request. They met eight or nine months before the h earing in Kerridge’s office and again a month later at Zisk’s property, where Zisk “showed him the issues.” The meeting at the Zisk’s property was “very . .



### . pleasant,” and before Kerridge left , he told Zisk, “John, we’re getting old. Get me that list. ” Thereafter, Zisk supplied Ke rridge with a list of 40 to 50 items, but Kerridge never responded. On cross-examination, Zisk said that he was aware that children had been shot and killed at an elementary school in Decem ber 2012. He heard about it on the news, although he did not know where it was. He al so heard of similar shootings in New York, Virginia, and Los Angeles. He acknowledged sending the January 3, 2013, e-mail to Kerridge, which stated: “This is very ugly and will lead to more national attention than recent school shootings. Please do not for ce me down this messy path that may consume
more lives.”6 On redirect, Zisk explained, “Whe n I said [t]his is ugly, the word this refers to the paragraph prior. There are hundreds of issues within that, and I am trying to simplify it with [Kerridge], which is what I had a meetin g with Mayor Roccucci about . . . just prior to meeting with [Kerridge]. [¶ ] The [c]onsume more lives, as I said, with my father and mother, we’ve lived this for so many years, and I saw it consume their lives. And I was talking about my life. [¶] And the e-mail that I sent to [Ke rridge] actually states that as Item No. One, [c]onsume my life. And [Kerri dge] knew that. And I stated that to him on the property, so he understood that very well.” When Zisk referred to the “recent school shootings,” he did not mean that he was going to do anything like that, explaining, “I was stating that I was going to reach national atte ntion. I did not wa nt to tell them the direction I was going. But I’ve seen my moth er and father and the City battle in the courts. If it needs to go there and if I could afford a million dollars to hire a law firm to do so, I might try that again. [¶] But I ca re about my kids. And I made a decision to help them through school and not take this to the Court. So I’m pushing for an investigation.”
The trial court took the matter under subm ission until later that morning, at which
time it read its decision into the record. The court acknowledged that “[t]he right of people to petition for redress of grievances is a central and vital part of our representative democracy” but found that “statements such as those that [Zisk] has made do not have a legitimate purpose. They have no purpose except to frighten the hearers.” With respect to Zisk’s testimony that he did not intend to threaten Kerridge or anyone else, the court observed that “[a] willful intent to frighten is not one of the elements of the Statute.” The court “determine[d] that the conduct that is a ttributed to . . . Zisk in the Petition does in fact constitute by clear and convincing eviden ce [an] actionable threat of workplace
violence under Code of Civil Pr ocedure Section 527.8.” Accord ingly, the court issued an order granting an injunction against Zisk on be half of Kerridge. In relevant part, the order prohibits Zisk from doing the following things to Kerridge: (1) harass, molest,7 assault, or disturb the peace of the person; (2 ) commit acts of violence or make threats of violence against the person; (3) follow or stal k the person during work hours or while going to or from the place of wo rk; (4) contact the person, di rectly or indirectly, by any means; (5) enter the person’s workplace; and (6) take any action to obtain the person’s addresses or locations. It also requires Zisk stay at least 150 yards away from Kerridge and Kerridge’s workplace, name ly Roseville City Hall, lo cated at 311 Vernon Street, Roseville. “Peaceful written contact through a la wyer or a process server or other person for service of legal papers related to a court case is allowed and does not violate the[e] order.” The restrictions placed on Zisk expi re three years after the date of issuance. 2
DISCUSSION Section 527.8 “authorize[s] any employer to pursue . . . an injunction on behalf of its employees to prevent threats or acts of violence by either another employee or third person.” ( Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333 ( Scripps ).) It provides in relevant part: “Any empl oyer, 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 be en carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee . . . .” (§ 527.8, subd. (a).) If there is good cau se to grant the petition, the court must hold a hearing and “receive any testimony that is relevant and ma y make an independent inquiry.” (§ 527.8, subd. (j); see § 527.8, subd. (h).) “If the judge finds by clear and convincing evidence that the [defendant] engaged in unlawful violence or made a credible threat of violence, an injunction shall issue prohibiting further un lawful violence or threats of violence.” (§ 527.8, subd. (j).) A sec tion 527.8 protective order must be limited to a three-year

2 The City incorrectly states that “[t]he injunction issued applies to Kerridge and other City employees.” The sole “employee (protected person)” identified in the order is Kerridge. No “additional protected persons” are listed.8 period and cannot be issued if it “prohib it[s] speech or othe r activities that are constitutionally protected . . . .” (§ 527.8, subds. (c), (k)(1).) On appeal, the appropriate test is whether the findings (express and implied) that support the trial court’s entry of the restraini ng order are justified by substantial evidence. ( R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) Ho wever, whether the facts, as found by the trial court, are legally sufficient to co nstitute a “credible threat of violence” under section 527.8, and whether the restraining order passes constitutional muster, are subject to independent review. ( In re George T. (2004) 33 Cal.4th 620, 634; DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 890.)
I Zisk’s Statements Which Referenced “R ecent School Shootings” and the Possible “Consum[ption] [of] More Li ves” Constituted a Credible Threat of Violence Under Section 527.8 Zisk claims that “no reasonable person” would believe his references to “recent school shootings” and the “consum[ption] [of] more lives” were anything but “obvious hyperbole,” and that such protected comments could not be used as evidence to support the issuance of a restraining order. We disagree. As previously noted, a “ ‘[c ]redible threat of violence’ is a knowing and willful statement or course of conduct that would plac e a reasonable person in fear for his or her safety . . . and that serves no legitimate purpose.” (§ 527.8, subd. (b)(2).) “[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of th e listeners, must be considered.” ( People v.
Falck (1997) 52 Cal.App.4t h 287, 298.) The defendant’ s subjective intent is “not required for his conduct to be deemed a credib le threat. . . . [There is no] requirement that the defendant intend to cause the person to believe that he or she had been threatened with death or serious injury . It . . . requires only a st atement made knowingly and willfully, which would place a reasonable pe rson in fear for his or her safety.9 [Citations.]” ( City of San Jose v. Garbett (2010) 190 Cal.Ap p.4th 526, 538-539 ( Garbett ).) Applying these legal principles, we conclu de that Zisk’s statements amounted to a
credible threat of violence. Zisk told Kerridge: “This is very ugly and will lead to more
national attention than the recent school sh ootings. Please do not force me down this messy path that may consume more lives.” These statements were made three weeks after the shootings at Sandy Hook Elementary School, which garnered national attention.
Zisk claimed that his reference to “ ‘sc hool shootings’ was in connection with [his] assertion that [his] plight would lead to nati onal attention, not to any threatened violence by [him],” but his claim begs the question, ho w did he intend to obt ain national attention other than by committing an act of violence akin to the recent school shootings? Moreover, Zisk’s subjective in tent is irrelevant. (See Garbett, supra, 190 Cal.App.4th at pp. 338-339.) The salient ques tion is whether Zisk’s statemen ts were sufficient to “place a reasonable person in fear for his or her safety . . . and . . . serve[] no legitimate purpose.” (§ 527.8, subd. (b)(2).) The answer is yes. As we noted in Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1413, “[I]n our post-Col umbine High School world,
fantastical threats that once we re taken lightly as fancies of immature youth now cause reasonable persons to pa use and even to become fearful. ” Considering the timing of the statements and the entire factual context, in cluding Zisk’s decades-lo ng dispute with the City and growing frustration as evidence d in his communications with other City officials, we have no trouble concluding th at Zisk’s statements constituted a credible
threat of violence within th e meaning of section 527.8. 3

3 Zisk complains that “[t]he City included only selected portio ns of the series of emails between [himself] and the City Manager’s offi ces.” We note that copies of all e-mails relied on by the City were part of the record below, and the trial court indicated that it had “read and considered the materials provide d by the City,” including the e-mails. We, too, have reviewed the e- mails in their entirety.10 Relying on the United States Supreme Court’s decision in Watts v. United States (1969) 394 U.S. 705 [22 L.Ed.2d 664] ( Watts ), Zisk argues that “no reasonable person can be expected to believe that [his] co mment in the e-mail [to Kerridge] could be anything but hyperbole.” In Watts , the defendant was at public rally on the Washington Monument grounds, during the time of the Vietna m War, when he stated that he had just received his draft notice to report for induction, declared he would not go, and said that “ ‘If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’ ” His listeners laughed. ( Id. at pp. 706-707.) Reversing the defendant’s conviction for threatening the life of the Pr esident, the United States Su preme Court said that the defendant’s speech, considered in context, was “political hype rbole” rather than a “true
‘threat’ ” and was therefore constitutionally protected. ( Id. at p. 708.)
The circumstances here differ from those in Watts . Unlike Watts , which involved a threat against the President of the United States made during a public political rally opposing the Vietnam War, Zisk’s statements were directed to a City official in a private
communication with the intent to obtain of se ttlement of ongoing i ssues between himself and the City. For the reasons previously discussed, a reas onable person could understand
Zisk’s statements as a credible thr eat and not mere political hyperbole.
II The Injunction Does Not Impe rmissibly Infringe Upon Zisk ’s Constitutional Rights Zisk contends his rights to petition the gove rnment for redress of grievances and to travel are impermissibly abrogated by the trial court’s order. Again, we disagree. As the trial court acknowledged, the right to petition for redress of grievances is a “ ‘fundamental’ ” first amendment right. ( Smith v. Silvey (1983) 149 Cal.App.3d 400, 406). “A content-neutral re gulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech th an necessary to further those interests. [Citation.]” ( Turner Broadcasting System, Inc. v. FCC (1997) 520 U.S. 180, 189 [13711 L.Ed.2d 369].) Here, th e government has an important in terest in preventing workplace violence. ( Scripps, supra, 72 Cal.App.4th at p. 334.) Nor does the injunction burden substantially more speech than necessary. The injunction bars Zisk from communicating with one individual -- Kerridge. It does no t prevent him from communicating with the City, nor does it bar him fro m filing complaints or exercising any other petitioning activity. While the injunction also prohibits him from entering City Hall, there is no evidence that this restriction will have any impact upon his petiti oning activity. To the contrary, in his declaration, he acknowledge d that his meeting with Kerridge was the only time he had been to City Hall in the past two years. On this record, we have no trouble concluding that the injunctio n does not impermissibly impi nge upon Zisk’s right to petition.
Zisk also contends that “the order . . . prohibiting [him] from traveling through the City of Roseville to reach the United States Post Office located across from 311 Vernon Street (Roseville City Hall), violates his right to travel . . . .” “Although no provision of the federal Constitution expressly recognizes a right to travel among and between the states, that right is recognized as a fundamental aspect of the federal union of states. ‘For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizen s of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.’ [Citation.]” ( Tobe v. City of Santa
Ana (1995) 9 Cal.4th 1069, 1096-1097.) Assumi ng for argument’s sake that the right to travel is implicated by the in junction’s stay away provision, we note that “[l]ike all constitutional rights the right of free movement is not absolute and may be reasonably restricted in the public interest. Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which w ould be invalid under traditional constitutional concepts may be reas onable at least to th e extent that such intrusions are required by legitim ate governmental demands.” ( In re White (1979) 9712 Cal.App.3d 141, 149-150.) Here, Zisk may tr avel anywhere he ch ooses, except he must stay 150 yards away from Kerridge and Ke rridge’s workplace, City Hall. These restrictions are reasonably related to the le gislative goal of providing a safe workplace, and a zone of safety around Kerridge, as th e Legislature intended when enacting section 527.8. ( Scripps, supra, 72 Cal.App.4th at pp. 334.) Zisk asserts for the first time in his reply brief that the injunction is “unreasonable” to the extent it prohibits him from visiting the United States Post Office, which is within 150 yards of City Hall, because “the facts of this case do not concern the United States.” Assuming for argument’s sake that this issue is properly before us, Zisk fails to explain how his inability to access this particular post office infringes upon his rights in any way. Absent any such explanation, we are unabl e to determine whether the restriction is
unreasonable as Zisk contends. That the facts of this case do not concern the United States is of no consequence. The point is to keep a zone of safety around Kerridge; that a post office falls within that zone alone does not make the restriction unreasonable.
Should other reasons exist or sh ould Zisk wish to propose a less restrictive alternative, he is free to bring a motion to modify th e injunction. (§ 527.8, subd. (k).)
DISPOSITION The order is affirmed. The City shall re cover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

HOCH , J.