On December 5, 2011, in 2011 Cal. App. LEXIS 1511 (Dec. 5, 2011), the Court of Appeal for the Fourth District, Division One, ruled that the trial court properly considered "all relevant evidence," including generally inadmissible hearsay evidence, in deciding to issue a workplace violence injunction. As a result, employers likely will have an easier time obtaining injunctions against potential workplace violence situations in the future.
In the underlying matter, when deciding to issue an injunction
banning a former Kaiser employee's husband, Wilson, from a
Kaiser facility for three years, the trial court considered all of
the testimony submitted by Kaiser. Specifically, in support of its
injunction petitions, Kaiser presented declarations and testimony
from two employees to demonstrate that Wilson had made several
credible threats of violence. In particular, the two employees
alleged that they had learned from others (and did not actually
hear from Wilson) that Wilson had variously threatened to "put
[them] down," "flip his lid," "do something
that he would regret," "kill someone," and shoot one
of them. The employees did, however, testify that Wilson had made
one direct threat, when he told one of the employees that, if
anything happened to his wife, "you are going to pay for
this." After the trial court granted the injunction, Wilson
appealed on the ground that the trial court had improperly
considered the second-hand evidence during the hearing.
The Court of Appeal held that California Code of Civil Procedure
section 527.8 required the trial court to consider the second-hand
evidence, known as "hearsay evidence." Section 527.8
permits an employer to petition for an injunction to protect
employees from credible threats of workplace violence. It also
requires the court to conduct a hearing on the petition before
issuing an injunction. California law specifies that, at the
petition 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
injunction shall issue . . . ." Code Civ. Proc. §
527.8(f).
The appellate court explained that the plain language of Section
527.8(f) permits trial courts to "consider all
relevant evidence, including hearsay evidence," when deciding
whether to issue an injunction. Accordingly, the court held that
this section of the California Rules constitutes an exception to
the general rule barring admission of hearsay evidence. The court
reasoned that this exception is consistent with the overall purpose
of Section 527.8 to provide a method for obtaining injunctions that
is "procedurally truncated, expedited, and intended to provide
quick relief to victims of civil harassment." Moreover,
Section 527.8(f) requires trial courts to weigh the evidence
instead of juries, and "judges are particularly aware of the
potential unreliability of hearsay evidence, and are likely to keep
this in mind when weighing all of the evidence
presented."
Kaiser is a significant decision that likely will greatly
aid employers in obtaining workplace violence injunctions. Using
Kaiser as a basis, an employer should attempt to submit
all relevant evidence in favor of granting the desired injunction,
regardless of whether it constitutes hearsay or might otherwise be
excluded under the general rules of evidence. On the other hand,
employers also should be prepared to rebut otherwise excludable
evidence that a defendant might present at the hearing. In any
event, employers should protect its employees against any credible
threats of workplace violence whenever they become aware of such
potentially dangerous situations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.