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May 2021 Cover Story - Options for Protecting Businesses From Aggressive Anti-Masking Trespassing

by MATTHEW K. WEGNER and ALEXANDER W. AVERY

The COVID-19 pandemic has altered the way many retailers and other businesses operate—if they are fortunate enough to remain operational in the first place. Businesses must comply with multiple levels of pandemic-driven health guidelines and government directives intended to prevent the spread of the novel coronavirus. Following the most commonly known health guidance, many stores have implemented policies requiring their customers and employees to wear protective masks when indoors. In many instances, the implementation of these policies is a matter of survival—not only for the people in the businesses, but for the businesses themselves, which may suffer financially and attract the scrutiny of health department authorities if customers do not feel the business has taken adequate health precautions.

These measures are unpopular with some. There is a minority of shoppers who protest mask policies by entering businesses without a mask to intimidate and provoke the employees who are simply charged with enforcing company policy. Purporting to act in the name of civil liberties, the maskless advocates confront employees or other customers, often referencing any number of laws—the First Amendment, miscellaneous criminal statutes, the Americans with Disabilities Act, or the Unruh Act, to name just a few—as justification for violating the mask directive.

Whether these or any other laws protect maskless shopping in the face of a private company’s mask policy is not the subject of this article (though as a general matter, they do not—a private business is entitled to enforce a mask policy just as it is entitled to enforce a “no shirt, no shoes, no service” policy). Nor does this article address the efficacy of facemasks in preventing the spread of the novel coronavirus. If those issues are debatable, it is not the responsibility of employees at the corner grocery (or the corner grocery, itself) to debate them with mask policy challengers.1 The employees are simply there to do their jobs, free of harassment. This article addresses two tools companies should consider using to secure their businesses and employees against aggressive anti-mask activists.

 

Workplace Violence Restraining Order: Basic Procedure

California courts have issued restraining orders requiring individual maskless protesters to stay away from businesses, employees, and employees’ vehicles. In the event the maskless protesters’ conduct does not rise to the level of harassment, their refusal to leave store property (i.e., trespassing) may provide the basis to seek preliminary injunctive relief. By statute:

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 order after hearing 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.

Cal. Code Civ. Proc. § 527.8(a). A workplace violence restraining order, and temporary restraining order, are sought by filing Judicial Council Form WV-100 and its accompanying declarations and companion forms. The employer-petitioner generally identifies a specific employee to be protected (WV-100(3)), but it may also ask the court to include “additional protected persons,” and even persons at other branches of the employer’s businesses. See WV-100(4)(a) (permitting petitioner to request production for “any other employees at the employee’s workplace or at other workplaces of the petitioner”). The restrained party need not be an employee of the petitioner-employer. See WV-100(5)(b). The petitioner-employer may seek a temporary restraining order—usually issued the same day, without notice, assuming the proof is sufficient—that will remain in effect until a full hearing on the restraining order. Whether a temporary restraining order is issued or not, the court will set a hearing on the restraining order, at which the court will entertain evidence from petitioner, and the putative restrained party will have an opportunity to respond with his or her own evidence.

 

Workplace Violence Restraining Order: Showing Required

The range of conduct to support a workplace violence restraining order under the statute is broad: A “credible threat of violence” 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” (Section 527.8(b)(2)), and a “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; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.

Cal. Code Civ. Proc. § 527.8(b)(1).

Applying a preponderance of the evidence standard, the reviewing judge will determine whether the evidence is sufficient to issue a restraining order. As such, the nature and type of evidence sufficient to issue the restraining order will vary. Clearly, a threat of imminent bodily harm would be compelling. But continuous threats to harass and intimidate employees—that is, a “pattern of conduct . . . evidencing a continuity of purpose . . . including entering the workplace . . .” may (and have) also met the standard for issuance of a restraining order. See also WV-100(8)(a)(2). Some anti-mask activists, for example, take to social media to brag about their exploits, or even announce their future intentions to violate policy and enter certain stores without a mask to bother employees or otherwise advance an agenda. Video evidence of those threats is an obvious source of evidence to support a petition for a restraining order—nothing is as compelling as hearing straight from the restrained party’s mouth. Witness declarations outlining the statements and conduct of the restrained party are also helpful, and should be prepared, along with any available in-store video footage of offending incidents.

The severity and frequency of the threat is subjective, and results will vary depending on which judge hears the matter. But a compelling case can—and should—be made that, in a time when the authorities continuously warn the public about the consequences of severe viral infection in this pandemic, and health guidelines mandate mask policies in places of business, words or conduct by an activist promising to enter that business without a mask—and in violation of policy—constitutes a “credible threat” that would place a “reasonable person in fear for his or her safety.” In other words, the times have made the intentional transmission of germs a threat to the reasonable person.

 

Workplace Violence Restraining Order: Consequences

The court may fashion a host of provisions in the event a restraining order is issued. At a minimum, a party may be required to stay away from the protected employee—at work and at home. A court might make additional orders prohibiting the restrained party from contacting the employee in any way. Courts may (and in some instances, have) restrained a party from bothering “any” employee of the petitioner-employer. The court issuing a restraining order may also include any number of other protections for the aggrieved, and restrictions on the restrained party (prohibiting the restrained party from owning a firearm, for example). The restraining order is in effect for any amount of time up to three years, at the court’s discretion. In short, the consequences are significant.

 

Civil Lawsuit

A second route to the same objective is to file a verified complaint against the individual or organized maskless shoppers for interference with prospective economic advantage and trespass and to seek injunctive relief. Many commercial landlords have content-neutral time, place, and manner restrictions on speech-related activities on their property. Retailers have sued unions and other organizations that staged protests for injunctive relief premised on the torts of trespass, nuisance, and tortious interference where those protests violated content-neutral restrictions. The same combination can be used against a trespasser or tortious interferer even where such speech-related restrictions are not in place.

To maintain a claim for trespass to land, the plaintiff must plead (1) intentional, mistake, and good faith irrelevant, (2) physical intrusion onto another’s property, even if no harm occurs. To establish the tort of inter­ference with prospective economic advantage, a plaintiff must plead (1) the existence of a relationship that is likely to produce economic benefits (customers in the store with a shopping cart of items they will likely purchase), (2) the defendant’s knowledge of that relationship, (3) the intent to disrupt the relationship, and (4) independently wrongful conduct.

Defendant’s intent to interfere with prospective economic relations need not be specific—it is sufficient that defendant knows his or her acts are substantially certain to cause interference. Maskless shoppers who enter a store with the intent to provoke confrontation from the store manager, obstruct a checkout line by demanding service when they have been asked to leave, or encourage customers to remove their masks, know that their acts are substantially certain to cause other customers to leave the store. If the maskless shoppers refuse to leave after a store has demanded they leave, their conduct becomes independently wrongful because they are trespassing.

Trespass absent actual damages will typically not suffice to obtain injunctive relief. However, trespass combined with a tort such as nuisance or interference with prospective economic relations may be sufficient. Pursuant to Section 527(a) of the California Code of Civil Procedure, courts have discretion to grant preliminary injunctions where the plaintiff shows a reasonable probability it will prevail on the merits and that harm to the plaintiff resulting from a refusal to grant the injunction outweighs the harm to the defendant. The injunctive relief sought must be narrowly tailored to avoid implicating constitutional protections.

 This additional method—while not yet widely tested in the context of dealing with unruly violators of in-store mask policies—sounds in more generalized harassment law and could well be a useful means of barring a group from assaulting a retailer and its employees en masse. Considering that a workplace violence restraining order, by its terms, is typically used to prohibit only individual assailants, a broader civil lawsuit could be a viable means of restricting a larger group from harassing employees and customers of an establishment.

 

Conclusion

Anti-mask advocates in California tend to rely on misinterpretations of state and federal civil liberties laws, discrimination laws, and public accommodation laws designed to address customers with physical disabilities. An advocate representing the retailer should not be distracted. When it comes to harassing employees of a business, these arguments miss the point. Trespassing is illegal. Harassing and intimidating people at their workplaces is illegal. If a private business chooses to implement a policy that requires their patrons to wear masks, that business may similarly refuse service or bar entry to persons who refuse to abide by that policy, while making alternative arrangements for the activists to shop without entering the stores. Anti-mask advocates are welcome to take up their grievances with the likes of Governor Newsom and Dr. Fauci at the government level. If they choose to actualize those grievances by disrupting a private business, however, the store may consider the foregoing options to put a stop to the disruption.

ENDNOTE

(1) Indeed, while most would prefer the modicum of security a mask policy might offer, it is fair to assume some employees, or even businesses, disagree with mask directives.

 

Matthew K. Wegner and Alexander W. Avery are commercial and intellectual property litigators at Brown Wegner LLP in Irvine, California. They can be reached at mwegner@brownwegner.com and aavery@brownwegner.com, respectively.