California court addresses workplace restraining orders

A California appellate court recently clarified that a defendant in a petition for an injunction under the California Workplace Violence Safety Act (WVSA) is entitled to cross-examine witnesses when testifying about the injunction.

Many California trial courts have previously not permitted respondents or their counsel to cross-examine appellant’s witnesses. Employers seeking workplace violence injunctions should now be prepared for witnesses who present testimony in support of the petition to be cross-examined in proof of the petition.


Housing, CSV Hospitality Management vs. Jermorio Lucasinvolves a petition for injunctive relief filed in San Francisco Superior Court by CSV Hospitality Management against the defendant, a resident of a CSV facility that provides supportive housing for the formerly homeless.

The WVSA authorizes employers whose employee has suffered unlawful violence or a credible threat of violence in the workplace to obtain an injunction to prevent further violence or threats of violence. Available reliefs include restraining orders and firearms bans.

The ČSV petition was supported by sworn statements from four of its employees, who stated that the defendant was very aggressive and confrontational towards the employees, including at least one physical fight. The defendant submitted a statement to the motion in which he denies all the allegations against him.

During the evidence, two employees of the ČSV gave testimony, including answers to questions put to them by the court. The defendant then testified and answered questions from his defense attorney. The defendant denied all the allegations.

After the defendant’s testimony, the court indicated that it was ready to rule on the motion. The defendant’s defense attorney requested the opportunity to cross-examine CSV’s witnesses. The court denied the request, holding that the hearing was not a full trial on the merits and there was no authority to permit cross-examination at a hearing on a restraining order.

The court then granted a three-year restraining order with various conditions. The court found that the CSV had met its burden of presenting clear and convincing evidence that the defendant committed violence or made a credible threat of violence and that unlawful violence is reasonably likely to occur in the future. The court further noted that it did not find the defendant’s testimony to be logical or believable.

Defendant’s appeal

The Court of Appeal reversed and remanded the case for further proceedings. The Court of Appeals held that the denial of the defendant’s request to cross-examine the evidentiary witnesses violated both the WVSA and the defendant’s due process rights. The Court of Appeals noted that although injunctions under the WVSA are “procedurally abbreviated, expedited, and intended to provide prompt relief” to victims of harassment, the WVSA specifically states that the trial court “shall receive any testimony that is relevant” during hearsay evidence. The Court of Appeals found that this language expressed the Legislature’s intent that the court consider “all relevant evidence, including evidence obtained on cross-examination.”

The Court of Appeals further noted that “courts have long recognized the importance of cross-examination and its critical relationship to the ability to defend oneself against charges, and have regarded it as a right to due process. [under the federal and California constitutions] that is essential to a fair trial.” Specifically, the court held that “where a petitioner seeking a workplace violence ban has offered testimony regarding threats of violence, as in this case, the respondent has the right to cross-examine the witness with respect to those allegations.”

The Court of Appeals rejected CSV’s argument that the trial court’s denial of the cross-examination request was harmless error because the trial court found that CSV presented clear and convincing evidence and that the defendant’s testimony was neither logical nor believable. The appeals court stated that it was not possible to find the error harmless when it could not know what the witnesses would say on cross-examination, nor what effect such testimony might have on the trial court’s decision.

Practical considerations for employers

Employers seeking workplace violence injunctions should anticipate the possibility that witnesses who present testimony in support of the petition will be cross-examined by the defendant. Accordingly, witnesses should be prepared to have their claims challenged and tested. Witnesses should be prepared for the discomfort of having to communicate with a person who has already committed violence or threatened violence.

Notably, this case did not involve any issues of witness intimidation or other misconduct by the defendant during the proceedings. Judges have broad discretion and control over the conduct of parties to an evidentiary hearing, and this decision does not appear to affect a court’s ability to limit or deny the right to cross-examine based on a finding that a defendant has engaged in improper conduct, such as witness intimidation or harassment during the trial.

Employers should seek help in dealing with workplace violence or petitioning to ban workplace violence.

Adam Fiss is an attorney with Littler in San Jose, California. Douglas Ropel is an attorney with Littler in Sacramento, California. © 2022. All rights reserved. Reprinted with permission.


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