San Jose v. Webster  6th District Decision



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified

for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for

publication or ordered published for purposes of rule 977.




Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CV815401)


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


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


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.'”


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


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."


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


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


“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.


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


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.


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.



Mihara, J.



Rushing, P.J.


Premo, J.

City of San Jose v. Webster



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