Severson & Werson, P.C. v. Sepehry-Fard

• Decision Date: 24 July 2019
• Docket Number: H045161
• Citation: 37 Cal.App.5th 938,249 Cal.Rptr.3d 839
• Court: California Court of Appeals Court of Appeals
• Parties: SEVERSON & WERSON, a Professional Corporation, Plaintiff and Respondent, v. Fareed SEPEHRY-FARD, Defendant and Appellant.

37 Cal.App.5th 938

249 Cal.Rptr.3d 839

SEVERSON & WERSON, a Professional Corporation, Plaintiff and Respondent,

v.Fareed SEPEHRY-FARD, Defendant and Appellant.

H045161

Court of Appeal, Sixth District, California.

Filed July 24, 2019

Attorney for Defendant and Appellant, FAREED SEPEHRY-FARD: Fareed Sepehry-Fard, pro per

Attorneys for Plaintiff and Respondent, SEVERSON & WERSON: SEVERSON & WERSON, Joseph W. Guzzetta, San Francisco

Greenwood, P.J.

The trial court issued a workplace violence restraining order under Code of Civil Procedure section 527.8 against appellant Fareed Sepehry-Fard on four days' notice without an accompanying order shortening time. We conclude the five days' notice requirement of section 527.8 is jurisdictional and renders the court's resulting order void in the absence of the party who did not receive the five days' notice. We will reverse the order accordingly.¹

I. FACTUAL AND PROCEDURAL BACKGROUND ²

Using the mandatory Judicial Council form, on August 15, 2017, respondent Severson & Werson, a law firm, filed a Petition for Workplace Violence Restraining Orders (WV-100), seeking protection for all its employees, including four specifically named: Bernard J. Kornberg, Adam N. Barasch, William A. Aspinwall, and Joseph W. Guzzetta. Severson & Werson identified 14 lawsuits in which its employees had been involved with Sepehry-Fard, stating the employees "are attorneys who, while working for petitioner Severson & Werson, have had their names appear in the captions of pleadings, have physically appeared at hearings, or have had communications with [Sepehry-Fard] in one or more of the many suits listed [in the petition] in which petitioner Severson & Werson has represented its clients against [Sepehry-Fard]."³

The firm cited several incidents involving Sepehry-Fard and its employees in support of the request for a restraining order. Severson & Werson contended that Sepehry-Fard sent correspondence to the employees containing "veiled threats of physical violence against them," in which he alleged the employees had committed treason, which is punishable by "death or imprisonment without the possibility of parole." In 2015, Sepehry-Fard performed a "citizens arrest" of Kornberg and Guzzetta, with the result that a sheriff's deputy detained the two employees for an hour while investigating Sepehry-Fard's claims. Sepehry-Fard attempted to file a police report against the employees in July 2017, but his efforts were thwarted when the officer who took Sepehry-Fard's statement found his claims to be without merit. Shortly thereafter, Sepehry-Fard "drafted papers that purport to be arrest warrants for each of the persons named in [the petition]. The ‘arrest warrants’ list 23 ‘felony counts’ including treason. [Sepehry-Fard] mailed the ‘arrest warrants’ to each of the persons named in [the petition]." Severson & Werson alleged that Sepehry-Fard is a member of the "sovereign citizen movement," a group whose members "believe they don't have to answer to any government authority," and "have been known by the FBI to ‘commit murder and physical assault; threaten judges, law enforcement professionals, and government personnel; and impersonate police officers and diplomats.’ [Citation.]" Finally, Severson & Werson argued that the likelihood of Sepehry-Fard carrying out his threats against the employees was increased because "Severson & Werson is now representing U.S. Bank, which foreclosed on [Sepehry-Fard's] home, in an unlawful detainer action to evict [Sepehry-Fard] from that property. [Sepehry-Fard's] entire course of litigation and his threats against the persons listed in [the petition] arise from his efforts to avoid foreclosure of his home and an adjoining property that he has since sold."

In its petition, Severson & Werson asked the court to issue personal conduct orders precluding Sepehry-Fard from engaging in certain activities, as well as stay-away orders, with exceptions allowing Sepehry-Fard to contact attorneys regarding pending legal actions, "for the purpose of serving notice or documents in that action, arranging for hearings or discovery or negotiating a settlement," and to be within 100 yards of the attorneys during court hearings in order to "enter the building and courtroom and to address the court during the hearing." Severson & Werson requested these orders on a temporary basis pending the hearing, without notice to Sepehry-Fard, which the court granted.

The court set the hearing on the petition for September 5, 2017. On the Judicial Council form Notice of Court Hearing (WV-109), the court indicated Severson & Werson had to have the petition and all associated documents personally served on Sepehry-Fard at least five days before the hearing. While the mandatory form petition included a section wherein Severson & Werson could have asked for less than five days' notice, the firm left that portion of the form blank.

Severson & Werson filed a proof of service indicating a sheriff's deputy personally served the required documents to Sepehry-Fard on September 1, 2017, four days before the date set for hearing. On September 5, 2017, Aspinwall appeared at the hearing for Severson & Werson; Sepehry-Fard did not appear. Aspinwall informed the court he had not seen Sepehry-Fard that morning. The court asked, "And we have service?" to which Aspinwall replied, "I believe so. Deputy Winslow informed me that he was served on Friday." The court then conducted a hearing, at which Aspinwall testified; the court also relied on declarations submitted with the petition, and exhibits introduced at the hearing. Based on the evidence, the court found Severson & Werson met the burden of proof to show a harassing course of conduct. It entered a three-year restraining order with terms nearly identical to those issued in the temporary order. The court filed the written Workplace Violence Restraining Order After Hearing (Judicial Council form WV-130) on September 6, 2017. A sheriff's deputy had the new order personally served on Sepehry-Fard on September 8, 2017. Sepehry-Fard timely filed notice of the instant appeal on September 12, 2017; the order is appealable under section 904.1, subdivision (a)(6).

II. DISCUSSION

Sepehry-Fard raises two main arguments on appeal. First, he contends the trial court violated his constitutional right to due process by holding the hearing without affording him proper notice and an opportunity to be heard. Second, he alleges the trial court appeared biased and colluded with Severson & Werson to violate Sepehry-Fard's due process rights. We conclude Sepehry-Fard did not receive adequate notice or an opportunity to be heard to contest the issuance of the restraining order, as he did not receive the notice required by section 527.8, and reverse the order on that basis. We do not find evidence in the record supporting Sepehry-Fard's contention that the trial court exhibited bias or colluded with Severson & Werson to deprive Sepehry-Fard of his right to due process.

A. Standard of Review

There is no dispute the trial court in this matter held the hearing on the petition four days after Severson & Werson had the petition and other required pleadings personally served on Sepehry-Fard. On appeal, we generally review an injunction issued under section 527.8 to determine whether the necessary factual findings are supported by substantial evidence, resolving all factual conflicts in favor of the prevailing party, and drawing all reasonable inferences in support of the trial court's findings. ( City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 538, 118 Cal.Rptr.3d 420 ( Garbett ).) However, "[t]he question whether the order was authorized under the statute, as a matter of statutory interpretation, is reviewed de novo. [Citation.] We review procedural due process claims de novo because ‘the ultimate determination of procedural fairness amounts to a question of law.’ [Citation.]" ( In re Jonathan V. (2018) 19 Cal.App.5th 236, 241, 228 Cal.Rptr.3d 161.)

We note Sepehry-Fard did not raise the issue of untimely service in the trial court; he did not appear at the hearing, and did not, as far as the record on appeal reflects, seek further relief from the order in the trial court. Although we are generally precluded from considering an issue not raised in the trial court where an objection could have been, but was not, raised, "this rule does not apply when the theory raised for the first time on appeal is a pure question of law applied to undisputed facts. [Citations.]" ( Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699-700, 96 Cal.Rptr.3d 172.) Our interpretation of the notice provision of section 527.8 is a question of law; the relevant facts are not in dispute. Therefore, we will review the issue de novo.

B. The Trial Court's Order is Void as it Issued Without Proper Notice to Sepehry-Fard

1. The Law Applicable to Workplace Violence Restraining Orders

"Section 527.8, the Workplace Violence Safety Act, enables an employer to seek an injunction to prevent violence or threatened violence against its employees. The statute provides, ‘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 and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.’ ( § 527.8, subd. (a).)" ( Garbett , supra , 190 Cal.App.4th at p. 536, 118 Cal.Rptr.3d 420.)

The trial court may issue a temporary restraining order under section 527.8 without notice to the responding party. (See § 527.8, subd. (f).) Within 21 to 25 days, the court must then hold a hearing to "receive any testimony that is relevant" and "make an independent inquiry." ( § 527.8, subd. (j).) "If the judge finds by...