California Court Holds Defendants in Workplace Violence Restraining Order Petitions Have a Due Process Right to Cross-Examine Employer’s Witnesses

On October 17, 2022, in an issue of first impression at the appellate level, California’s Court of Appeals (First District) published an opinion clarifying that a defendant in a petition for restraining order under California’s Workplace Violence Safety Act (WVSA) is entitled to cross-examine witnesses at the evidentiary hearing for the restraining order. CSV Hospitality Management LLC v. Jermorio Lucas, A163345. As many California trial courts had previously not allowed defendants or their representative to cross-examine the petitioner’s witnesses, employers seeking workplace violence restraining orders should now be prepared that the witnesses who present testimony in support of the restraining order petition will be cross-examined at the evidentiary hearing on the petition.


The case involves a petition for a restraining order under the WVSA brought in San Francisco Superior Court by CSV Hospitality Management LLC (CSV) against the defendant, a resident in a CSV facility that provides supportive housing to formerly homeless individuals. The WVSA (specifically, Code of Civil Procedure section 527.8) authorizes employers whose employee(s) have suffered unlawful violence or a credible threat of violence in the workplace to obtain an injunction to prevent further violence or threats of violence. Available relief includes stay away orders and prohibitions from possession of firearms.

CSV’s petition was supported by affidavits from four of its employees, which set forth that the defendant had been very aggressive and confrontational towards the employees (including at least one physical altercation). The defendant filed a response to the petition in which he denied all the allegations against him.

CSV and the defendant were represented by counsel at the evidentiary hearing for the restraining order petition. Two CSV employees provided testimony at the hearing, including answering questions posed to them by the court. The defendant then testified, answering questions posed by his attorney. The defendant denied all the allegations.

After the defendant’s testimony concluded, the court indicated it was ready to rule on the petition. The defendant’s counsel requested the opportunity to cross-examine CSV’s witnesses. The court denied the request, stating that the hearing was not a full trial on the merits and there was no authority to allow cross-examination at a restraining order hearing. The court then granted a three-year restraining order with various terms. The court noted that CSV had met its burden of producing “clear and convincing evidence” that the defendant had engaged in violence or made credible threats of violence, and a reasonable probability of unlawful violence would occur in the future. The court further noted that it had not found the defendant’s testimony to be logical or believable.

Defendant’s Appeal

On appeal, the appellate court reversed and remanded the case back the to the trial court. The court held that denying the defendant’s request to cross-examine witnesses at the evidentiary hearing violated both the WVSA and the defendant’s due process rights. The court noted that although injunctive proceedings under the WVSA are “procedurally truncated, expedited, and intended to provide quick relief” to victims of harassment, the WVSA specifically states that the trial court “shall receive any testimony that is relevant” during the evidentiary hearing. The court found this language expressed the Legislature’s intent that the court consider “all relevant evidence, including evidence obtained by cross-examination.”

The court further noted that “courts have long recognized the importance of cross-examination and its crucial relationship to the ability to defend against accusations, deeming it a due process right [under the federal and California constitutions] that is fundamental to a fair proceeding.” The court specifically held that “[w]here, as here, a petitioner seeking a workplace violence restraining order has offered testimony as to threats of violence, the respondent has a due process right to cross-examine the witness with respect to those allegations.”

The court rejected CSV’s argument that the trial court’s denial of the cross-examination request was harmless error because the trial court had found CSV had presented clear and convincing evidence and that the defendant’s testimony was neither logical nor believable. The court observed it was impossible to find the error harmless when it cannot know what the witnesses would have said on cross-examination, or the effect such testimony could have on the trial court’s decision.

Practical Considerations for Employers

Employers seeking workplace violence restraining orders should plan for the possibility that witnesses who present testimony in support of the petition will be cross-examined by the defendant (or their counsel). Accordingly, the witnesses should be prepared to have their assertions challenged and tested. The witnesses should also be prepared for the discomfort of having to interact with the person who has already engaged in violence or threatened violence.

Notably, this case did not involve any issues of witness intimidation or other inappropriate conduct by the defendant in the course of the proceedings. Judges have broad discretion and control over the conduct of participants in evidentiary proceedings, and this ruling does not appear to disturb a court’s ability to limit or deny a right to cross-examination based on a finding that the defendant engaged in inappropriate conduct (e.g., witness intimidation or harassment) during the proceeding.

Employers should seek the assistance of counsel when addressing workplace violence (including threats of violence) and/or pursuing a petition for a workplace violence restraining order.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.