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                                           NOT TO BE PUBLISHED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
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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,                                                                           C073496

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                         S-CV-0032376)
         v.

JOHN WILLIAM ZISK,

                   Defendant and Appellant.




         Defendant John William Zisk appeals from 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 there is insufficient evidence
that he made a credible threat of violence, and the injunction impermissibly burdens his
rights to petition government for redress of grievances 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.

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                   FACTUAL AND PROCEDURAL BACKGROUND
       For the past four decades, Zisk and his 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 respond 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 would place a reasonable person in fear for his
safety. The City submitted Kerridge’s declaration in support of its petition. In his
declaration, Kerridge explained that Zisk “has been involved in a longstanding battle
against the City that began with his father – now deceased – regarding the City’s
acquisition of certain real property 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. Kerridge 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 Zisk sent to Assistant
Planning Director Kevin Payne in May 2009, in which Zisk stated: “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. My

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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 before a war occurs.”
       Kerridge also was aware of an encounter between Assistant City Manager John
Sprague and Zisk at Costco in April 2010, which Sprague summarized in an e-mail to
Zisk. Among other things, Zisk told Sprague about an attorney who did not represent
Zisk’s father in a professional manner and stated that if he had been treated in this
manner, he would have probably shot the attorney. While Sprague did not feel threatened
by Zisk, he said that Zisk “is very angry toward the City and very focused on trying to
right what he believes are wrongs committed against his father, mother and family by the
City of Roseville.”
       On January 17, 2013, the trial court issued a temporary restraining order which,
among other things, prohibited Zisk from contacting Kerridge “directly or indirectly, by
any means” and required Zisk stay at least 150 yards away from Kerridge and Kerridge’s
workplace (Roseville City Hall).
       On January 30, 2013, Zisk filed his response to the petition, in which he denied
doing the things described therein. Zisk submitted a declaration in support of his
response. In his declaration, Zisk claimed 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 officials 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 out 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 referring to his father and not himself when

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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 that 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 overseeing the City’s critical incident negotiations
team, which “assess[es] threats in all critical incidents involving people in distress and
crisis situations.” He reviewed various e-mails sent by Zisk “to determine whether the
statements [contained therein] constitute a credible threat of violence to City employees.”
In addition to the e-mails referenced in Kerridge’s declaration, Doane reviewed an e-mail
sent by Zisk to City Bikeway Planner Mike Dour, in which Zisk explained that his father
“submitted truthful information and 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 advantage 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 2009, 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. People 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 and 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 belief that the City is responsible for the death
of his parents “is leading him to make statements that are gradually becoming more
threatening and violent.”

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       On February 11, 2013, the trial court held a hearing on the City’s petition. The
City submitted the matter on the pleadings, including 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 Judgment many years ago.” After taking the
property, the City failed to use 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 violence or intending to cause 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. When 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. And they have never followed 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 the media, to higher authorities per se.” As for his dealings
with Kerridge, he stated that he has only met him twice, both times at Kerridge’s request.
They met eight or nine months before the hearing 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 Kerridge 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 December 2012. He heard about it on the news,
although he did not know where it was. He also 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 force me down this messy path that may consume
more lives.”

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       On redirect, Zisk explained, “When 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 meeting 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 [Kerridge] actually states that as
Item No. One, [c]onsume my life. And [Kerridge] 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 attention. I did not want to tell them the
direction I was going. But I’ve seen my mother 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 care 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 submission 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 attributed to . . . Zisk in the Petition does in
fact constitute by clear and convincing evidence [an] actionable threat of workplace
violence under Code of Civil Procedure Section 527.8.” Accordingly, the court issued an
order granting an injunction against Zisk on behalf of Kerridge. In relevant part, the
order prohibits Zisk from doing the following things to Kerridge: (1) harass, molest,

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assault, or disturb the peace of the person; (2) commit acts of violence or make threats of
violence against the person; (3) follow or stalk the person during work hours or while
going to or from the place of work; (4) contact the person, directly 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, namely Roseville City Hall, located at 311 Vernon Street,
Roseville. “Peaceful written contact through a lawyer 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 expire 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 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 . . . .” (§ 527.8,
subd. (a).) If there is good cause to grant the petition, the court must hold a hearing and
“receive any testimony that is relevant and may 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 unlawful violence or threats of violence.”
(§ 527.8, subd. (j).) A section 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.

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period and cannot be issued if it “prohibit[s] speech or other 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 restraining order are justified by substantial evidence.
(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.) However, whether the facts, as found
by the trial court, are legally sufficient to constitute 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 “Recent School Shootings” and the Possible
   “Consum[ption] [of] More Lives” 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 place 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 the listeners, must be considered.” (People v.
Falck (1997) 52 Cal.App.4th 287, 298.) The defendant’s subjective intent is “not
required for his conduct to be deemed a credible 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 statement made knowingly and
willfully, which would place a reasonable person in fear for his or her safety.



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[Citations.]” (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538-539
(Garbett).)
       Applying these legal principles, we conclude 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 shootings. 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 “ ‘school shootings’ was in connection with [his]
assertion that [his] plight would lead to national attention, not to any threatened violence
by [him],” but his claim begs the question, how did he intend to obtain national attention
other than by committing an act of violence akin to the recent school shootings?
Moreover, Zisk’s subjective intent is irrelevant. (See Garbett, supra, 190 Cal.App.4th at
pp. 338-339.) The salient question is whether Zisk’s statements 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-Columbine High School world,
fantastical threats that once were taken lightly as fancies of immature youth now cause
reasonable persons to pause and even to become fearful.” Considering the timing of the
statements and the entire factual context, including Zisk’s decades-long dispute with the
City and growing frustration as evidenced in his communications with other City
officials, we have no trouble concluding that Zisk’s statements constituted a credible
threat of violence within the meaning of section 527.8.3



3 Zisk complains that “[t]he City included only selected portions of the series of emails
between [himself] and the City Manager’s offices.” 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 provided by the City,” including the e-mails. We,
too, have reviewed the e-mails in their entirety.

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       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] comment 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 Vietnam 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 President, the United States Supreme Court said that the
defendant’s speech, considered in context, was “political hyperbole” 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 settlement of ongoing issues between himself
and the City. For the reasons previously discussed, a reasonable person could understand
Zisk’s statements as a credible threat and not mere political hyperbole.
                                         II
   The Injunction Does Not Impermissibly Infringe Upon Zisk’s Constitutional Rights
       Zisk contends his rights to petition the government 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 regulation 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 than necessary to further those interests.
[Citation.]” (Turner Broadcasting System, Inc. v. FCC (1997) 520 U.S. 180, 189 [137


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L.Ed.2d 369].) Here, the government has an important interest 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 not prevent him from communicating with the
City, nor does it bar him from 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 petitioning activity. To the
contrary, in his declaration, he acknowledged 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 injunction does not impermissibly impinge 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 citizens 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.) Assuming for argument’s sake that the right to
travel is implicated by the injunction’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 would be invalid under
traditional constitutional concepts may be reasonable at least to the extent that such
intrusions are required by legitimate governmental demands.” (In re White (1979) 97

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Cal.App.3d 141, 149-150.) Here, Zisk may travel anywhere he chooses, except he must
stay 150 yards away from Kerridge and Kerridge’s workplace, City Hall. These
restrictions are reasonably related to the legislative goal of providing a safe workplace,
and a zone of safety around Kerridge, as the 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 unable 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 should Zisk wish to propose a less restrictive alternative, he
is free to bring a motion to modify the injunction. (§ 527.8, subd. (k).)
                                       DISPOSITION
       The order is affirmed. The City shall recover its costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)


                                              BLEASE                     , Acting P. J.


We concur:


         NICHOLSON                  , J.


         HOCH                       , J.


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