Dep't of Transp. v. Wynnycky

• Docket Number: C095834
• Decision Date: 04 December 2024
• Parties: DEPARTMENT OF TRANSPORTATION et al., Plaintiffs and Respondents, v. MARCUS WYNNYCKY, Defendant and Appellant.
• Court: California Court of Appeals

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DEPARTMENT OF TRANSPORTATION et al., Plaintiffs and Respondents, v. MARCUS WYNNYCKY, Defendant and Appellant.

C095834

California Court of Appeals, Third District, Nevada

December 4, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. TCU217868)

RENNER, J.

Marcus Wynnycky appeals in propria persona from the imposition of a five-year workplace violence restraining order pursuant to Code of Civil Procedure section 527.8.^[1]He raises numerous contentions, including: (1) that he was not properly served with the petition, temporary restraining order, and notice of hearing on the petition for the restraining order; (2) that the term of the restraining order exceeds the statutory maximum; (3) that the trial court granted an excessive number of continuances such that the proceedings exceeded the time allowed by statute; (4) that substantial evidence does not support the trial court's finding that he engaged in a course of conduct warranting imposition of the restraining order; and (5) that the restraining order infringes on his right to free speech. We agree with the first of these contentions. Accordingly, we will reverse the order.^[2]

I. BACKGROUND

Wynnycky was hired as a probationary seasonal maintenance worker by the Department of Transportation (Caltrans). He was rejected after the probationary period due, in part, to inappropriate behavior towards other Caltrans employees. That behavior included making racially charged remarks, steering conversations towards disturbing subjects (such as chopping up bodies), and using menacing body language (such as acting as though he was concealing a gun in his jacket). The rejection was communicated to Wynnycky, and he was escorted from the Caltrans maintenance station.

A post appeared on a peer-to-peer content sharing site soon thereafter. The post identified another Caltrans employee by name and described him as armed and violent, with a gang history. The post listed the employee's home address and provided detailed instructions on where to find him at the maintenance station.

Caltrans filed a petition for a workplace violence restraining order on May 18, 2021. (§ 527.8.) The petition was granted, and a temporary restraining order was entered until the required hearing, initially set for June 9, 2021. There followed a months-long effort to serve Wynnycky with the temporary restraining order and notice of hearing. The hearing was continued several times to allow for service.

In the meantime, another post appeared on the previously described website. The post identified additional Caltrans employees by name and date of birth, described them using racially derogatory and/or anti-Semitic language, and falsely accused them of criminal misconduct and other misdeeds. The post also identified the attorney who filed the initial petition for a workplace restraining order by name and date of birth. The post also provided home addresses for the newly identified employees and attorney.

Caltrans filed an amended petition for a workplace violence restraining order on behalf of the additional employees and attorney on August 9, 2021. As before, Caltrans struggled to effectuate service of process. One of the addresses provided by Wynnycky during the hiring process turned out to be a flea market; another, a United States Post Office. Caltrans investigators tried and failed to locate Wynnycky. A private investigator was retained. He was no more successful than his predecessors. The hearing on the restraining order was continued once more.

Caltrans appeared for a status conference on September 21, 2021. Caltrans' attorney described the ongoing effort to serve Wynnycky and asked that the trial court allow an alternative means of service. The trial court ordered that service be made by mail, email, and publication in a newspaper of general circulation in Studio City, California, where Wynnycky was believed to reside. The trial court added: "And what we'll do is as far as publication goes, why don't we do three attempts, just like any normal civil case, once a week for three weeks, and I'll continue this out to give you enough time to complete service by publication." The hearing on the restraining order was continued twice more to permit service by publication.

Caltrans published notice of the hearing on the restraining order in the Los Angeles Daily Journal over three successive weeks, beginning on November 5, 2021. Caltrans also served the temporary restraining order and notice of hearing on Wynnycky by email and regular mail.

The hearing on the restraining order was finally held on December 8, 2021. Caltrans' attorney reported that Wynnycky-who did not appear-had been served by mail, email, and publication. Following a brief discussion, the trial court found Wynnycky had been sufficiently served with notice of the hearing, and Caltrans showed by clear and convincing evidence that unlawful harassment occurred and credible threats of violence were made. The trial court then entered a five-year restraining order protecting nine Caltrans employees, three members of their immediate families, and two attorneys.

The record does not show Wynnycky was ever personally served with the temporary restraining order, notice of hearing, or final order. Nevertheless, Wynnycky filed a timely notice of appeal.^[3]

II. DISCUSSION

We begin with a word on the briefing. Caltrans accurately observes that Wynnycky's opening brief contains numerous violations of the California Rules of Court, including failure to state each point under a separate heading or subheading, failure to support each point with argument and authority, and failure to support references to matters in the record with citations to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); see also United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 ["Appropriate headings require litigants to' "present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass"' "].) Caltrans also observes that the opening brief generally lacks clarity and organization, and frequently devolves into inflammatory and unintelligible rambling. These are not trivial concerns.

"The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) "In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal when it is not supported by accurate citations to the record. [Citations.] Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt." (Id. at pp. 286-287.)" 'Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.'" (Multani v. Witkin &Neal (2013) 215 Cal.App.4th 1428, 1457.)" 'It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.'" (Flores v. Department of Corrections &Rehabilitation (2014) 224 Cal.App.4th 199, 204.)

Caltrans encourages us to treat all of Wynnycky's arguments as forfeited for failure to comply with these well-settled rules of appellate practice. (See, e.g., Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived"]; L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619 [appellant "forfeited his contentions by failing to comply with the applicable rules of appellate procedure"].) These rules apply to attorneys and selfrepresented litigants alike. (Flores v. Department of Corrections &Rehabilitation, supra, 224 Cal.App.4th at p. 205 ["The same rules apply to a party appearing in propria persona as to any other party"]; Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [a party appearing in propria persona" 'is entitled to the same, but no greater, consideration than other litigants and attorneys' "].) Thus, we could consider the entire appeal forfeited. We decline to do so, however. Although Wynnycky's briefs are hardly models of appellate advocacy, they are not so inadequate that we cannot review his primary arguments. Accordingly, we will exercise our discretion to consider his contention that he was not properly served.

A. Applicable Legal Principles and Standard of Review

" '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).'" (Severson &Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938,...