Scripps Health v. Marin

• Decision Date: 20 May 1999
• Docket Number: No. D030264,D030264
• Citation: 72 Cal.App.4th 324,85 Cal.Rptr.2d 86
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 3817, 1999 Daily Journal D.A.R. 4833 SCRIPPS HEALTH, Plaintiff and Respondent, v. Mel M. MARIN, Defendant and Appellant.

Page 86

85 Cal.Rptr.2d 86

72 Cal.App.4th 324, 99 Cal. Daily Op. Serv. 3817,

1999 Daily Journal D.A.R. 4833

SCRIPPS HEALTH, Plaintiff and Respondent, v. Mel M. MARIN, Defendant and Appellant.

No. D030264.

Court of Appeal, Fourth District, Division 1, California.

May 20, 1999.

Hinchy, Witte, Wood, Anderson & Hodges and Cheryl Edwards Tannenberg, San Diego, for Defendant and Appellant.

McInnis, Fitzgerald, Rees & Sharkey, William M. Low and Arthur A. Wellman, Jr., San Diego, for Plaintiff and Respondent.

WORK, J.

Mel M. Marin appeals an order enjoining him from contacting any Scripps Health employee or coming within 500 yards of a Scripps facility or institution. (CODE CIV. PROC., § 527.8.)¹ He challenges the issuance of the injunction on various grounds; however, we need only address his meritorious assertion the injunction violated public policy by being imposed under factual circumstances which did not establish a threat of future harm to the employees of Scripps Health. As we shall explain, in enacting section 527.8 the Legislature did not intend to alter the underlying nature and purpose of a prohibitory injunction and when such relief is accorded. Thus, to obtain a permanent injunction under section 527.8, subdivision (f), petitioner must establish not only defendant engaged in unlawful violence or made a credible threat of violence, but also that great or irreparable harm would result to employee without issuance of the prohibitory injunction. Because the record lacks any evidence that Marin posed a threat of future harm to any Scripps Health employee, we accordingly reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Marin's mother, Eva Marinkovic, was a patient at Green Hospital of Scripps Clinic, whose employees are employed by Scripps Health. After her cardiac surgery, her treating physicians informed Scripps she was stable and suitable for discharge. His sister, who was very concerned regarding the impending discharge of their mother from the hospital, contacted Marin. On behalf of his mother, he filed a power of attorney form for health care with the hospital and investigated the status of his mother's discharge. He filed a complaint with the Medical Review Board in Sacramento alleging the hospital was attempting to "dump" his mother from hospital. He noticed Nancy Quesnell, Director of Quality Resource Management/Risk Management, of his complaint. Both he and his father, Milivoy Marinkovic, objected to the discharge of Eva Marinkovic from the hospital.

On May 22, 1997, Marin and his father went to the hospital to drop off a copy of the complaint. Sheila Hale, a Scripps employee, contacted them and attempted to arrange a discussion regarding Eva Marinkovic's discharge plans. However, Marin was unable to do so, because he was on his way to court to be appointed guardian ad litem for his mother. He and his father returned later that afternoon and requested Hale for a meeting, advising her he intended to record the meeting. She advised Quesnell of their availability to meet, who in turn informed Marge Owens, Administrator of Medical/Legal Affairs for Scripps Clinic Medical Group. After a brief initial meeting, Owens, Quesnell, Marin and his father entered an empty patient room to conduct the meeting. The room contained a bed, two chairs and a bathroom, with only one access door at the end of a small entry hallway. Upon entering the room, Marin produced a tape recorder and repeated his intent to record the meeting. Quesnell told Marin she would not permit the meeting to be recorded. Marin put away his tape recorder and declared that they would take care of this in writing. He then started to walk out of the room. At that point, Owens closed the door to the room and stated, "We need to discuss your mother." She positioned herself between Marin and the door, rendering it impossible for him to leave the room. Marin responded that there was nothing to talk about and that he was going to open the door. Owens replied again, "We really need to discuss your mother." He then pulled the door open, striking Owens with the door and pushing her into the wall. Marin, visibly angered, left the hospital premises with his father. Owens and Quesnell notified security. Quesnell immediately announced she intended to get a restraining order against Marin.

On May 23, 1997, Scripps Health petitioned for an injunction to prohibit Marin from harassing its employees under section 527.8, ² alleging Marin had struck Owens with a door. Scripps Health concurrently applied for a temporary restraining order (TRO), ex parte, under that section, alleging Marin "may continue" to assault or batter an employee of Scripps Health. A TRO and an order to show cause re injunction were issued on May 23, with a hearing set for June 5. On May 27, Marin appeared ex parte and obtained an order vacating the TRO pending the order to show cause hearing. In doing so, the court relied on Marin's representation maintenance of the TRO could jeopardize his security clearance; however, the court conditioned the order on Marin's representation he would stay away from Scripps Health facilities pending the factual hearing. For the next two months, no restraining order was in effect and there were no acts or threats of violence by Marin at anytime during this period.

On July 24, the evidentiary hearing was held. Upon completion, counsel for Scripps Health argued the evidence supported a finding Marin had pushed Owens into the wall, slammed the door against her and then thrown his body into the door. He asserted an injunction was needed because Marin's past behavior, his allegations Scripps had failed to adequately care for his mother, and the threat he might cause harm to Scripps' employees if, in the future, anything happens to his mother that he relates to her release from the hospital. Scripps' counsel had earlier acknowledged that because Eva Marinkovic had her health insurance coverage transferred to the Sharp Healthcare, there is no reason for her to be patient at a Scripps Health facility except if she has an emergency. ³ The court stated it found clear and convincing evidence that Marin "was the precipitating cause of an act of unlawful violence within the mean of ... section 527.8" and "responsible for the injury to [Owens]." The court imposed a three-year permanent injunction against Marin precluding him from making contact with any employee of Scripps Health or to telephone or send any messages or communications to Scripps Health employees except through counsel or through an intermediary. The court further ordered Marin to remain 500 yards away from any Scripps facility or institution, unless he has a medical emergency and is taken to a Scripps facility. The court denied his request he be permitted to use the facilities at University of California at San Diego except for the library on the campus. The order was entered on October 30. ⁴ Marin timely appealed.

THE INJUNCTION WAS IMPROPERLY ISSUED

Marin contends the injunction against him violates the codified public policy of imposing injunctive relief only where there is a threat of future harm to the petitioner, not as a remedy for a single past incident. Scripps Health responds by asserting that no showing of future harm is necessary as a finding of any past "unlawful violence" requires the issuance of an injunction under section 527.8, subdivision (f). ⁵ It asserts that once the court finds by clear and convincing evidence a defendant was the precipitating cause of an act of unlawful violence within the meaning of section 527.8, subdivision (f), the petitioner is entitled to an injunction. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 331, p. 264; 38 Cal.Jur.3d (rev.) Injunctions, § 45, p. 621.) However, as we shall explain, the Legislature did not intend in enacting section 527.8 to alter the underlying nature and purpose of a prohibitory injunction and when such relief is accorded. To obtain a permanent injunction under section 527.8, subdivision (e), a plaintiff must also establish great or irreparable harm would result to an employee without issuance of the prohibitory injunction because of the reasonable probability the wrongful acts will be repeated in the future.

More specifically, Scripps Health asserts the language in section 527.8, subdivision (f) is clear that once the court finds by clear and convincing evidence 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." It argues this language removes from the court any discretion to deny the relief requested. It contrasts this language to that of section 527.8, subdivision (e), which provides the plaintiff "may obtain" a TRO if it shows "to the satisfaction of the court" reasonable proof of unlawful violence and a threat of great or irreparable harm. Scripps Health thus argues that the Legislature intended to leave the determination of whether to grant or deny a TRO to the discretion of the trial court, but not so as to the issuance of a permanent injunction. (See § 527.8, subd. (f).) In summary, according to Scripps Health, to obtain temporary injunctive relief before the hearing under section 527.8, subdivision (e), a petitioner must show defendant committed an act of unlawful violence and a threat of great or irreparable harm; but, to obtain a permanent injunction after a full hearing, the plaintiff must show by clear and convincing evidence defendant engaged in unlawful violence or made a credible threat of violence. Consequently, Scripps Health asserts that under the plain language of the statute, no separate showing of a threat of future harm is required in order to obtain a permanent injunction.

Preliminarily, where the statutory language in dispute is clear and unambiguous, there is no need for construction and the judiciary should not indulge in it. (California...