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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CITY OF SAN JOSE, H026491
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CV815401)
JOHN WEBSTER,
Defendant and Appellant.
___________________________________/
Appellant John Webster appeals from the imposition of a permanent
injunction prohibiting him from contacting Lieutenant Brenda Herbert, a police
officer employed by respondent City of San Jose. We conclude that there was
substantial evidence to support the issuance of the injunction, the trial court did not
err in issuing a protective order, and Webster waived the issue of the
disqualification of the trial judge. Thus, the order is affirmed.
I. Statement of Facts
In 1990, Herbert was involved in a police sting operation involving the
investigation of possible child exploitation. Herbert spoke with Webster in a series
of taped telephone conversations about his plan involving sexual relations with
children. Webster was later prosecuted and entered a plea of no contest to a felony
charge of child pandering.
In September 1994, Lieutenant Glenn McCourtie, one of Herbert's
colleagues, was working at a shopping mall in San Jose. Webster approached and
spoke at length about Herbert and his criminal case. Webster claimed that he had
been wrongfully arrested and prosecuted based on altered evidence. McCourtie's
impression of Webster was that he was “strange, paranoid and somewhat
disturbing.” Due to his discomfort with Webster and concern for Herbert's safety,
McCourtie told Herbert about the incident.
In September 1995, Webster went to Herbert's workplace and left a
“reward” poster in which he accused her of fabricating evidence. Webster mailed
similar flyers to the public and distributed them at the Saddle Rack Bar in San
Jose.
In January 1996, Webster returned to Herbert's office where he left a
petition for police officers to sign. He also left a copy of his letter to the grand
jury foreperson in which he requested an investigation of alleged police
misconduct.
Since 1996 to the present, Webster has maintained a Web site in which he
complains of police and governmental corruption. The Web site includes a copy
of Herbert's declaration in connection with Webster's criminal case as well as
transcripts of the tape recordings of the conversations between Herbert and
Webster that led to his arrest. Recently, the Web site has included a request for
readers to provide information about Herbert and her family's address so that
Webster can inform them by mail of Herbert's "'evil deeds"' and they can then
pressure her to “'[d]o the right thing.'”
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In July 1999, Webster sent Herbert a postcard at her workplace in which he
challenged her to a “duel to the truth.” The postcard also explained: “With
polygraph tests being the weapon of choice.”
In the fall of 2000, a campaign flyer for Webster, who was running as the
Libertarian candidate for the state senate, was sent to the police department. The
flyer included a sketch of Herbert's likeness and accused her of editing the tapes
used in his criminal case.
In June 2001, Herbert received a copy of the Libertarian newsletter at her
workplace. Webster's article accused Herbert of falsifying evidence.
In January 2002, Webster attempted to subpoena Herbert to testify at his
trial before the United States Tax Court for failure to pay income taxes. Webster
believed that Herbert would establish that he was unlawfully prosecuted for child
pandering, and thus he was not required to pay taxes due to his loss of income while
serving his jail sentence.
In August 2002, Webster began driving a truck near the San Jose Police
Department, the Hall of Justice, and the San Jose City Hall. The truck had a
billboard that accused Herbert of falsifying evidence.
At about 5:30p.m. on September 17., 2002, Detective Julie Marin observed
Webster in his truck in front of the Police Administration Building. The billboard
on the truck stated, “San Jose Bad Cops” and “Lt. Brenda Herbert.” Webster was
using a pair of binoculars to observe employees as they were leaving work. Marin
conducted an investigation and learned that Webster and his truck had recently
been sighted more frequently in the vicinity of the Police Administration Building.
At approximately 5:00 p.m. on February 19 or 20, 2003, Webster and an
unidentified woman went to Herbert's home, rang the doorbell, and knocked on
the front door. When they received no response, they left. Between noon and 2:00
p.m. on February 22, 2003, they returned again to Herbert's home, rang the
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doorbell, and knocked on the front door. The following day, a neighbor advised
Herbert's husband that a man and a woman had asked her 12-year-old daughter
whether the Herberts's home was for sale. They also asked for the Herberts's
telephone number.
On February 24, 2003, Webster delivered a letter to Herbert's workplace.
He accused her of fabricating evidence against him, asked her to confess, and
suggested that they write a book together. He believed that Herbert might have
been his “soul mate,” and blamed her for causing his estrangement from his
children. He informed her that he had “gone to all the trouble with all the flyers,
handouts, billboard truck, and the web-site,” so that she or the City of San Jose
would sue him for defamation. He explained that once the suit was brought, he
could call her as a witness to prove that his accusations were true.
Webster also enclosed a flyer with his letter. Herbert's husband's name and
home address were printed on it. The flyer stated. “Lt. Herbert sells her soul.”
The flyer also stated: "Bad Cops turn good citizens into Terrorists." Webster
explained that when law enforcement agencies and police officers like Herbert
hide or alter evidence, the lives of good citizens are destroyed. He also noted that
our local courts are willing to participate in a cover-up when the police act with
“'good intentions.'” Thus, he continues, the “'good citizen'” is left with “no way
to get a peaceful redress of grievances. When this occurs repeatedly that
'Government Gone Bad' loses its legitimacy and gives moral justification for its
overthrow by force. This is what was happening to cause the Oklahoma bombing
where hundreds of innocent people were killed as 'collateral damage' in an effort to
send a message to the FBI and BATF for violating people's rights. Is a Bad Cop
like Lt. Brenda Herbert putting your freedom in danger? Absolutely!” Webster
also referred to Herbert as "[t]he face of EVIL, hater of men."
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The City of San Jose then sought and obtained a temporary restraining order
against Webster. At the hearing on the permanent injunction, Webster argued that
he did not make a credible threat of violence. Webster also explained his reference
to the Oklahoma City bombing: “MR. WEBSTER: I'm saying -- well, that was
brought about by a frustration against a government gone bad. And that -- in
trying to essentially let her neighbors know that there's -- really isn't something
you can ignore. [¶] THE COURT: So the same type of frustration Mr. McVeigh
felt towards his government? [¶] MR. WEBSTER: That's the type I'm talking
about.” The trial court then issued an injunction prohibiting Webster from
contacting Herbert and ordering him to stay at least 300 yards away from Herbert,
her home, and her workplace.
II. Discussion
A. Disqualification of Judge
Webster contends that Judge Thomas Cain should have disqualified
himself. Webster asserts that Judge Cain “was actively involved in covering up
illegal activity by the police” when he signed the search warrant in 1990 in which
the police were authorized to search Webster's residence
When a judge refuses to disqualify himself, “a party may seek the judge's
disqualification. The party must do so, however, 'at the earliest practicable
opportunity after discovery of the facts constituting the ground for
disqualification.' (Code Civ. Proc., § 170.3, subd. (c)(l).)” (People v. Scott
(1997)15 Cal.4th 1188, 1207.) Where the party does not raise the issue before the
trial court, it may not be raised for the first time on appeal. (Ibid.)
Here Webster's counsel informed Judge Cain that he had signed the search
warrant as well as orders to seal documents in Webster's criminal case in 1990.
Judge Cain stated that he had reviewed the file in the instant case, and he did not
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recall anything about Webster's criminal case. Counsel did not seek to disqualify
Judge Cain. Accordingly, the issue has been waived.
B. Sufficiency of Evidence
Webster next argues that there is insufficient evidence to support the
imposition of a permanent injunction under Code of Civil Procedure section
527.8.1
“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. (f).) When a party must establish proof of a fact by clear and convincing
evidence, the sufficiency of the evidence to establish that fact is primarily a
question for the trial court to determine. (Crail v. Blakely (1973) 8 Cal.3d 744,
750.) If the trial court's determination is supported by substantial evidence, it will
be upheld on appeal. (Edmunds v. Valley Circle Estates (1993)16 Cal.App.4th
1290, 1297.) In conducting a substantial evidence review, we “resolve all factual
conflicts and questions of credibility in favor of the prevailing party and indulge in
all legitimate and reasonable inferences to uphold the finding of the trial court if it
is supported by substantial evidence which is reasonable, credible and of solid
value. [Citations.]" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
Section 527.8 provides in relevant part: “(a) 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 prohibiting further unlawful violence or
threats of violence by that individual. "For purposes of this appeal we need only
1 All further statutory references are to the Code of Civil Procedure.
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focus on the definition of “credible threat of violence,” which is defined as “a
knowing and willful statement or course of conduct that would place a reasonable
person in fear for his or her safety, or the safety of his or her immediate family,
and that serves no legitimate purpose.” (§527.8, subd. (b)(2).) “Course of
conduct” is defined as “a pattern of conduct composed of a series of acts over a
period of time, however short, evidencing a continuity of purpose, including
following or stalking an employee to or from the place of work; entering the
workplace; following an employee during hours of employment;... or sending
correspondence to an employee by any means, including, but not limited to, the use
of the public or private mails, interoffice mail, fax, or computer e-mail.” (§ 527.8,
subd. (b)(3).) Constitutionally protected activity is not included within the
meaning of "course of conduct." (§ 527.8, subd. (c).)
Here there was substantial evidence of a statement or of a course of conduct
having no legitimate purpose that would have placed a reasonable person in fear
for her safety. For almost ten years, Webster has been accusing Herbert of
fabricating evidence in connection with his criminal case. He has distributed
posters and flyers, and maintained a Web site in which he has documented her
alleged misconduct. In 1999, he began sending items directly to her at her
workplace. In 2002, he repeatedly circled her workplace in a truck with a
billboard, and began observing employees as they left the office. When Herbert
failed to respond to Webster's tactics, he went to her home twice. A couple of
days later, he delivered a letter and a flyer to her workplace in which he referred to
her as "the face of EVIL." warned that "Bad Cops turn good citizens into
Terrorists,” and referred to the Oklahoma City bombing. At the hearing on the
petition for the injunction, Webster explained that he wanted Herbert's neighbors
to know that they could not ignore her misconduct, and that he was experiencing
the same type of frustration in connection with corrupt government that McVeigh
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experienced. Given the passage of time, a reasonable person would be concerned
when Webster intensified his efforts to contact her. A reasonable person would
also fear for her safety when Webster began comparing his circumstances with the
individual who bombed a federal building and killed hundreds of innocent people.
Webster harassed Herbert so that she would sue him for defamation, and thus his
statements and conduct did not serve a legitimate purpose. Accordingly, the
evidence supports the finding that Webster made a credible threat of violence
within the meaning of section 527.8.
Webster claims that his statements and conduct served a legitimate purpose,
that is, exposing police corruption and misconduct. However, the injunction does
not enjoin Webster from exercising his First Amendment rights about his
grievances arising out of the 1990 prosecution. He may continue to petition
government officials, he may continue to write letters, articles and flyers, he may
continue to post information on his Web site, and he may continue to drive his
truck where he chooses with the exception of a 300 yard radius of the police
department and Herbert's house.
C. Motion for Protective Order
Webster also argues that the trial court abused its discretion in granting the
protective order for the deposition of Herbert.
We review a discovery order for an abuse of discretion. (Greyhound Corp.
v. Superior Court (1961) 56 Cal.2d 355,378-381.) Under that standard, we must
uphold the order unless the trial court “exceed[ed] the bounds of reason, all of the
circumstances before it being considered.” (Foothill Properties V. Lyon/Copley
Corona Associates (1996) 46 Cal.App.4th 1542, 1557.)
“Under the discovery statutes, information is discoverable if it is
unprivileged and is either relevant to the subject matter of the action or reasonably
calculated to reveal admissible evidence. [Citations.]” (Valley Bank ofNevada V.
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Superior Court (1975)15 Cal.3d 652, 655-656; § 2017, subd. (a).) Section 2025,
subdivision (i) confers on trial courts broad power to enter a protective order to
prevent deposition discovery from causing “unwarranted annoyance,
embarrassment, or oppression, or undue burden and expense” to any party,
deponent, or other natural person. A moving party must establish that these factors
outweigh the likelihood that the information sought will lead to the discovery of
admissible evidence. (Emerson Electric Co. V. Superior Court (1997)16 Cal.4th
1101, 1110.)
In the instant case, the City of San Jose applied for a temporary restraining
order and injunction based on declarations of individuals with personal knowledge
of Webster's conduct. The declarations submitted by Herbert's husband and
coworkers documented that Webster's actions would place a reasonable person in
fear for her safety and the safety of those near her home and at work. There was
no declaration by Herbert, since section 527.8 does not include an individual's
subjective fear as an element. Consequently, Herbert's deposition testimony was
irrelevant. Moreover, Webster's attempt to depose Herbert was yet another
opportunity for him to harass her. Accordingly, the trial court did not abuse its
discretion in precluding this discovery.
III. Disposition
The order is affirmed.
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______________________
Mihara, J.
WE CONCUR:
______________________________
Rushing, P.J.
_______________________________
Premo, J.
City of San Jose v. Webster
H026491
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