Shoemaker v. Gianopoulos
Filed 1/29/14 Shoemaker v. Gianopoulos CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
BECKY
SHOEMAKER,
Plaintiff and Respondent,
v.
JOHN
GIANOPOULOS,
Defendant and Appellant.
H038576
(Santa Cruz County
Super. Ct. No. CV173740)
Defendant
John Gianopoulos, in propria persona,
section 527.6 civil harassment
order
prohibits him from harassing Ms. Shoemaker for a period of three years. Much of Mr. Gianopoulos's opening brief is
devoid of any record
references.
title="">[1] The most we can derive from the brief is that
he attacks the credibility of Ms. Shoemaker and others, as it pertains to a
the underlying lawsuit) that he filed against Radiology Medical Group (RMG) at
some point in time; in addition he attacks the factual assertions that Ms.
Shoemaker made in her request for a restraining order and her
for a restraining order. We point out
that it is for the trial court to determine credibility. (ASP Properties Group, L.P. v. Fard, Inc.
(2005) 133 Cal.App.4th 1257, 1266.) Credibility
is an issue for the fact finder, and as such, we do not reweigh evidence or
reassess the credibility of witnesses. (Cowan
v. Krayzman (2011) 196 Cal.App.4th 907, 915.) "Conflicts in the evidence, conflicting
interpretations thereof and conflicting inferences which reasonably may be
drawn therefrom, present issues of fact for determination by the trier of fact
who 'is the sole judge of the credibility of the witnesses'. . . ." (Church of Merciful Saviour v. Volunteers
of America, Inc. (1960) 184 Cal.App.2d 851, 856–857.) Our task is merely to determine whether the
judgment in this case is supported by substantial evidence (Bookout v.
Nielsen (2007) 155 Cal.App.4th 1131, 1137–1138), whether the facts are legally
sufficient to constitute civil harassment under section 527.6,
and whether the restraining order passes constitutional
muster. (DVD Copy Control Ass'n
v. Bunner (2003) 31 Cal.4th 864, 890.)
Background
Restraining
Order Petition and Allegations
Ms.
Shoemaker sought a civil harassment restraining order for herself, members of
her family and several of her coworkers.
Ms. Shoemaker alleged that the harassment she had suffered was "a
result of a combination" of her familial relationship with Mr. Gianopoulos
and well as her employment at RMG.
name="_ftnref3" title="">[3] Ms. Shoemaker explained that on June 22, 2006,
Mr. Gianopoulos had filed a complaint in Santa Cruz County Superior Court, case
number CV 169200 against RMG; that in the complaint, Mr. Gianopoulos had
alleged that in December 2005, the radiologist and technician on duty at RMG
had injected him with a contrast dye solution during an MRI procedure; that as
a result of the contrast, Mr. Gianopoulos alleged he had suffered an allergic
reaction; that a two week jury trial commenced in February 2008; that Jennafer
Gianopoulos
title="">[4]
testified on behalf of Mr. Gianopoulos; that at trial Jennafer Gianopoulos had
disclosed private and personal information surrounding her employment and
termination from RMG; that after a two week jury trial in February 2008, the
jury awarded a defense verdict in favor of RMG and after RMG filed a memorandum
of costs was awarded $28,929.94 as the prevailing party; that her father was
disgusted by Mr. Gianopoulos at trial and by the personal information that
Jennafer Gianopoulos had disclosed on the witness stand and as a consequence
had written the entire Gianopoulos family out of his will and trust; that the
harassment she had endured was a result of Mr. Gianopoulos's anger toward his
family being written out of her father's will and trust and was an attempt by Mr.
Gianopoulos to have her fired from her employment with RMG and an attempt to hurt
RMG financially.
Ms.
Shoemaker described the harassment as Mr. Gianopoulos creating various websites
on which he had stated that she was "Guilty of perjury, conspiracy and
intentionally violating laws made to protect patients"; that online he had
posted photographs of her house and posted her personal telephone number,
address and her personal email account; that on his website
www.liarliarliar.com he had accused her of being involved in many illegal and
unethical activities and inferred that she had engaged in sexual acts and
"other 'acts of perversion' " with RMG employees and RMG attorneys;
that Mr. Gianopoulos had put a sign on a residence approximately one mile away
from RMG on the lawn of a home occupied by an RMG employee that stated:
"Press
Release: Dominican MRI Center/Radiology
Medical
Group
Acts of Perversion
Acts
of Perversion
Felony
Conspiracy
Criminal
Extortion"
Ms. Shoemaker alleged that the sign had a
link to Mr. Gianopoulos's website www.radiologyofsantacruz.com.
In
addition to the foregoing, Ms. Shoemaker alleged that Mr. Gianopoulos had
started to park his vehicle in the RMG parking lot. On the vehicle were references to his websites
www.liarliarliar.com and wwwdominicanmricenter.com, as well as a sign that
stated:
"Conspiracy,
Fraud & Liars
Criminals
John
Rider
Dr.
Spellman
Linda
Lantry
Becky
Shoemaker"
Furthermore, multiple times a week Mr.
Gianopolous had posted things on Craigslist that named her, as well as other
employees of RMG; according to Ms. Shoemaker, these postings made disparaging,
dishonest, and harassing comments about her and the RMG employees. Specifically, Ms. Shoemaker alleged that on March 23, 2012, Mr. Gianopoulos posted on the Sacramento Craigslist "RMG
Manager Becky Shoemaker guilty of deviant acts . . . . [¶]
Santa Cruz Comprehensive Imaging/Radiology Medical Group Manager Becky
Shoemaker intentionally violated several laws made to protect patients. [¶] I
did not want my personal medical information being told to whomever Becky
Shoemaker saw fit to tell. She conspired
to cover up an intentional act of battery and lied about her involvement and
the involvement of her coworkers." Ms.
Shoemaker claimed that similar disparaging remarks were made on various other
websites, as well as posted in advertisements in the local newspapers; the
postings accused her of engaging in deviant sexual acts, of committing perjury
in court and of blackmailing other RMG employees into lying in court. According to Ms. Shoemaker, repeatedly, the
posts stated that she had been convicted of numerous criminal acts.
Finally,
Ms. Shoemaker alleged that Mr. Gianopoulos had set up a telephone number and
had notified Yellow Pages as well as 411.com and other listing websites that
RMG was associated with the number. She
alleged the recorded message stated that caller had reached "Radiology of
Santa Cruz"; and that an investigation into RMG and Dominican MRI center had
found, among other things, "criminal acts of perversion against a
patient."
Answer
to Request to Stop Harassment
Mr.
Gianopoulos filed an answer to Ms. Shoemaker's request for a restraining
order. In essence, he stated that the
allegations were untrue and that Ms. Shoemaker had lied. The place where the sign was posted was his
property; and he had not parked his vehicle in the RMG lot for "at least 5
years." Mr. Gianopoulos attached a
21-page document in which he made allegations that Ms. Shoemaker and RMG were
harassing him in order to force him to take down websites and comments about
their criminal activity. Mr. Gianopoulos
detailed his version of the facts underlying his lawsuit against RMG. In sum, he claimed to have posted true
comments about individuals that had directly or indirectly committed criminal
acts against him about which he felt that the public had a right to be
informed.
>
Civil Harassment Petition Hearing and Order
At the hearing on Ms. Shoemaker's
petition, Ms. Shoemaker was extensively cross examined by Mr. Gianopoulos's
attorney concerning her allegations and supporting documentation. At one point in the hearing, defendant's
counsel asked Ms. Shoemaker about an allegation she made that defendant
notified the "yellow pages" as well as "411.com" and other
listing websites that RMG was associated with a particular telephone
number. The court asked for the
telephone number and had it dialed by the courtroom clerk. The court reporter took down the content of
the message as follows: "Hello, you
have reached Radiology of Santa Cruz. Our
ongoing investigation has found Radiology Medical Group of Santa Cruz County, Dominican MRI Center, also known as RMG, guilty of
criminal acts of perversion against a patient.
Some of this deviant behavior was performed at the facility owned by RMG
which includes Dominican MRI Center, Dominican Breast Center, Santa Cruz Comprehensive
Imaging, and South County Imaging. At
least one patient was permanently injured when MRI technician John Rider
illegally injected a patient with contrast dye.
Technician Rider ignored both the patient's direct written order and the
patient's doctor's written referral not to inject this contrast. This injection of contrast immediately caused
the patient to go into anaphylactic shock.
Without regard to the patient or the law, no physician (inaudible) doing
the injection as required by law.
[¶] Doctor Michael Stone, a
radiologist and shareholder of Radiology Medical Group (inaudible) RMG manager,
Becky Shoemaker, and staff members, (inaudible) to alter the patient's medical
records in an attempt to hide their illegal and unethical acts. [¶]
For more details of Dominican MRI Center and Radiology Medical Group's
illegal activity, you may wish to visit the website
www.radiologyofsantacruz.com and www.liarliarliar.com. Thank you."
After listening to the message, the
court ordered that Mr. Gianopoulos disable the telephone number and the
message. The court found it
"entirely inappropriate" as it was "a fraudulent message"
that "purports to state" that it is "a message that is given by
Radiology Medical Group." The court
reasoned that the message was "fraudulent" and ordered Mr.
Gianopoulos to "disable it."
Mr. Gianopoulos's counsel asked Ms.
Shoemaker about a photograph of Mr. Gianopoulos's vehicle that she alleged Mr.
Gianopoulos had parked in the RMG parking lot; according to Mr. Gianopoulos's
counsel the vehicle has www.liarliarliar.com on the windshield. On redirect, Ms. Shoemaker's counsel asked
her to look at the photograph and read all of what was on the windows of the
vehicle. Ms. Shoemaker stated the
following: "www.liarliarliar.com, www.dominicanmricenter.com, again,
www.liarliarliar.com. It's two more
times; that's on the back. On the side
it says: Unsafe Medical Care, www.dominicanmricenter.com, www.liarliarliar.com,
conspiracy, fraud and liars, criminals, John Rider, Dr. Spillman, Linda
Lantree, Becky Shoemaker. That's on the
right side of the vehicle."
After Ms. Shoemaker finished
testifying, the court allowed Mr. Gianopoulos to testify "for the purpose
of his explaining" to the court "what legitimate purpose he has in
consolidating and publishing Ms. Shoemaker and her family members' personal
information on his website, what legitimate purpose he has in posting
photographs of her house on his website, what constitutional rights he alleges
authorize him to misrepresent his phone number as an RMG phone number and
contain a voicemail message ascribing these bad acts and conduct to employees
of RMG, and what legitimate purpose he has in describing Ms. Shoemaker as a
criminal being guilty of acts of perversion, engaging in . . . deviant
acts."
Mr. Gianopoulos testified that he
had never attempted to contact Ms. Shoemaker and the personal information he
got about Ms. Shoemaker he got from doing a search on the internet and posted
it because the "public should know what they're doing." Mr. Gianopoulos denied posting anything
personal about Ms. Shoemaker, he reiterated that it was information he found on
the internet. When the court asked why
he had put Ms. Shoemaker's telephone number and her address and her email on his
website, Mr. Gianopoulos responded, "There is no specific purpose. I just put it on, just the same thing I did
with the attorneys." Mr.
Gianopoulos could not give an explanation of why he posted a photograph on Ms.
Shoemaker's house on his website.
Defendant stated that everything he
said about RMG and the criminal activity meaning perjury, conspiracy, fraud,
and illegal injection of contrast, was true.
Mr. Gianopoulos said that he had put a description of what perversion
and deviant behavior mean on his website.
He denied that he ever stated that Ms. Shoemaker was involved in any
sexual perversion with any attorneys or employees. Mr. Gianopoulos admitted that he owned a
business called Radiology of Santa Cruz that has a telephone number;
admitted that on the telephone message he talks about the criminal activity of
RMG. However, he denied that he
contacted the yellow pages and 411.com to link his accounts with RMG. Mr. Gianopoulos claimed that he was not
harassing Ms. Shoemaker, rather he was exercising his constitutionally
protected right to free speech.
On cross examination, Mr.
Gianopoulos admitted that he owned the websites www.liarliarliar.com and www.dominicanmricriminalactivity.com
and www.dominicanmricenter.com. He said
he named them appropriately "because of the activity that they perpetrated
against" him. When asked if he
owned the website www.radiologyofsantacruz.com, Mr. Gianopoulos responded
affirmatively; he explained that he named it that so "the people that
wanted to research things on the Internet would come up to my site and see what
Radiology Medical Group's criminal activities are." Counsel for Ms. Shoemaker showed Mr.
Gianopoulos a document printed out from this website; counsel asked Mr.
Gianopoulos to read what was on the posting after he confirmed that he had
written it. The posting read,
"10-26-11 -- It has been brought to my attention some people may believe
the acts of perversion of Radiology Medical Group RMG, employees (Dr. Michael Spillman,
MRI technician John Rider, manager Becky Shoemaker) and attorney Barry Marsh
are involved in is sexual in nature. The
facts I am presenting are not due to any sexually perverse or sexually deviant
acts they may be involved in. I cannot
make any statements as to their sexual preferences, only their proven illegal
activities." Mr. Gianopoulos said
the purpose of putting this on the website was because friends had said that
people may have taken the references to perversion and deviant behavior as
something of a sexual nature and he wanted to make clear that was not what he
meant, he did not want to mislead people.
Mr. Gianopoulos denied that he wanted to associate Ms. Shoemaker's name
with sexual perversion in a Google search.
Counsel for Mr. Gianopoulos argued
to the court that Mr. Gianopoulos's course of conduct was "in the realm of
personal speech, not commercial speech."
Counsel pointed out that "[p]ersonal speech is subject to the
strictest test of speech as distinct from commercial speech. And it is the government intervening on
chilling a person's free speech rights that requires a legitimate government
interest, not the speaker who is expressing himself, I believe in a
legitimately protected area of consumer rights, most particularly in an
environment of monopoly, control of local market radiology services, as well as
the fact that it pertains to medical care of the citizens in our fairly small and
isolated community." Counsel
pointed out that no one had asked Mr. Gianopoulos to stop what he was doing and
there was no evidence that he was out of control. Counsel explained to the court that he had
looked up the words "perversion, "pervert" and "deviant"
and the "number one definition of deviant is departing from the
norm"; and the "[n]umber one definition of perversion is the
alteration of something from its original course, meaning or state to
(inaudible) others corruption from what was first intended. [¶]
And Mr. Ginaopoulos'[s] view is that he believes that the defendants
perverted from the ordinary, distorted from the norm, the legal processes by
Ms. Shoemaker and the other defendants in the malpractice case, modifying
medical records . . . ."
At the end
of the hearing, the court gave a tentative ruling that an injunction would
issue and asked Ms. Shoemaker's counsel to prepare a proposed order. The court set a hearing for the purpose of
crafting the final order. Subsequently,
at the next hearing the court expressed concern as to whether Mr. Gianopoulos's
harassment "occurred within the meaning of [section] 527.6 [subdivision]
(b)(3) by making harassing telephone calls to the individual or sending
harassing correspondence to an individual, by means including, but not limited
to, the use of public or private mails, interoffice mail, fax or computer
e-email. [¶] And so the question I have is if someone
publishes something in the public domain, creating a website or creating a
pre-recorded tape voicemail message then it gets mailed to the Plaintiff, that
isn't done by way of telephone call or communicating directly to the Plaintiff. [¶] My
concern is . . . that all the reported cases that I'm familiar with involve a
direct communication and a repeated course of direct communications to the
Plaintiff as opposed to creating some publication which the Plaintiff has to go
to herself and look up in some other location in order to find the harassing
material."
title="">[6]
After
listening to argument from both Mr. Gianopoulos's counsel and Ms. Shoemaker's
counsel the court set a briefing schedule to address the issue of "whether
the methodology by which [Mr. Gianopoulos] engaged in this conduct is covered
by the statute."
name="_ftnref7" title="">[7] The court did inform Ms. Shoemaker's counsel
that he would give counsel "[p]retty much everything" he had asked
for as long as the court was "persuaded that it's covered by the statute,
given that you are conceding that there is no evidence that he phoned her, he
e-mailed her, he mailed her directly, he delivered any materials to her place
of business, of employment, he delivered any of these materials to her home. And instead, they were in the ether on an
internet site, which she had to access herself in order to see the harassing
material."
Mr.
Gianopoulos's counsel informed the court that Mr. Gianopoulos had voluntarily
taken off the recorded telephone message the court had listened to, including any
reference to Ms. Shoemaker that was in the message.
Ultimately,
in a lengthy written order filed on May 29, 2012, the
court granted the injunction. The court found
that Mr. Gianopoulos had engaged in acts of harassment against Ms. Shoemaker
within the meaning of section 527.6, subdivision (b)(3); and that the
"harassment consisted of a knowing and willful course of conduct directed
at Plaintiff that has seriously alarmed, annoyed and harassed her." The court found that "despite [Mr.
Gianopoulos]'s claims that he was merely exercising his free speech rights, his
conduct served no legitimate purpose."
Accordingly, the court ordered Mr. Gianopoulos to remove his three websites—www.radiologyofsantacruz.com,
www.dominicanMRIcenter.com, and www.santacruzradiology.com—in their entirety;
remove from "any and all websites he created on the Internet" all "references
to and refrain from posting" Becky Shoemaker's, Amy Shoemaker's and Steven
Shoemaker's "address, telephone numbers, email addresses, and any
photographs of their residence" as well as "remove all [existing]
references to and refrain from posting that Becky Shoemaker is a 'deviant,' is
a 'pervert,' has engaged in 'acts of perversion,' or engaged in 'perverted
activity,' " or "has engaged in any criminal activity" or
"sexual misconduct."
The
court permitted Mr. Gianopoulos to maintain www.liarliarliar.com and
www.dominicanmricriminalactivity.com, subject to the aforementioned
limitations. However, Mr. Gianopoulos
was ordered to remove the voicemail message on the number (831) 464-3664 and
refrain from impersonating RMG or any RMG employee or agent in any voicemail
recording. The court ordered Mr.
Gianopoulos to stay 100 yards away from Ms. Shoemaker's residence, and places
of employment on Soquel Drive, however the order did not prevent him from traveling on Soquel Drive,
as long as he did not park within 100 yards of Ms. Shoemaker's place of
employment. Mr. Gianopoulos was ordered
to refrain from contacting Ms. Shoemaker and her family members directly or
indirectly, "including, but not limited to, in person, by telephone, in
writing, by public or private mail, by interoffice mail, by e-mail, by text
message, by fax, or by other electronic means."
Discussion
Section
527.6, subdivision (a)(1), provides, "A person who has suffered harassment
as defined in subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section." Section 527.6, subdivision (b)(3) provides: " 'Harassment' is unlawful violence, a
credible threat of violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys, or harasses the
person, and that serves no legitimate purpose. The course of conduct must be such as would
cause a reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the petitioner." 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 individual, making harassing telephone calls to an
individual, or sending harassing correspondence to an individual by any means,
including, but not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally
protected activity is not included within the meaning of 'course of conduct.'
" (§ 527.6, subd. (b)(1), italics
added.)
Section
527.6, subdivision (b)(6) states: "
'Temporary restraining order' and 'injunction' mean orders that include any of
the following restraining orders, whether issued ex parte or after notice and
hearing: [¶] (A) An order enjoining a party from harassing,
intimidating, molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not limited to,
making annoying telephone calls, as described in Section 653m of the Penal Code,
destroying personal property, contacting, either directly or indirectly, by
mail or otherwise, or coming within a specified distance of, or disturbing the
peace of, the petitioner. [¶] (B) An order enjoining a party from specified
behavior that the court determines is necessary to effectuate orders described
in subparagraph (A)."
On
appeal, as noted, the appropriate test is whether the findings (express and
implied) that support the trial court's entry of the restraining order are
justified by substantial evidence in the record. (Bookout v. Nielsen, supra, 155
Cal.App.4th 1131, 1137–1138, [injunctions under section 527.6 are reviewed to
determine whether factual findings are supported by substantial evidence; trial
court's determination of controverted facts will not be disturbed on appeal].)
evidence standard of review, 'we must consider all of the evidence in the light
most favorable to the prevailing party, giving it the benefit of every
reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.] [¶] It
is not our task to weigh conflicts and disputes in the evidence; that is the
province of the trier of fact. Our
authority begins and ends with a determination as to whether, on the entire
record, there is any substantial evidence, contradicted or
uncontradicted, in support of the judgment.' " (ASP Properties Group, L.P. v. Fard, Inc.,
supra, 133 Cal.App.4th at p. 1266.) However,
whether the facts, when construed most favorably in Ms. Shoemaker's favor, are
legally sufficient to constitute civil harassment under section 527.6, and
whether the restraining order passes constitutional muster, are questions of
law subject to de novo review. (DVD
Copy Control Ass'n v. Bunner, supra, 31
Cal.4th 864, 890, [reviewing court independently examines whether facts come
within First Amendment]; Smith v. Selma Comm. Hosp. (2008) 164
Cal.App.4th 1478, 1515 [existence or nonexistence of substantial evidence is
question of law].)
"Section
527.6 was enacted 'to protect the individual's right to pursue safety,
happiness and privacy as guaranteed by the California Constitution.' [Citations.] It does so by providing expedited injunctive
relief to victims of harassment. [Citation.]" (Brekke
v. Wills (2005) 125 Cal.App.4th 1400, 1412.) The purpose of an injunction under section
527.6 is not to punish for past acts of harassment, but rather to provide quick
relief and prevent future harassment. (Russell
v. Douvan (2003) 112 Cal.App.4th 399, 403.)
An injunction restraining future conduct is authorized under section
527.6 only when it appears from the evidence that the harassment is likely to
recur in the future. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 189.) In evaluating the likelihood that the
harassment will continue, the court may consider the totality of the
circumstances, "including evidence of conduct that might not itself
constitute harassment." (Id.
at pp. 189–190.)
We are satisfied there was
substantial evidence of the conduct that Ms. Shoemaker alleged Mr. Gianopoulos
engaged in; Ms. Gianopoulos admitted that he had posted most of the things that
Ms. Shoemaker alleged constituted the harassment. However, having determined the acts occurred,
there is a separate legal question of whether the facts, as found by the trial
court, are legally sufficient to constitute civil harassment under
section 527.6, and whether the restraining order is constitutional. These determinations are subject to a de novo
standard of review. (R.D. v. P.M., supra, 202
Cal.App.4th at p. 188.) Similar
to the lower court, our concern is whether the course of conduct Mr. Gianopoulos
engaged in is legally sufficient to constitute civil harassment under section
527.6 given that there was no evidence that Mr. Gianopoulos telephoned,
emailed, or mailed anything directly or indirectly to Ms. Shoemaker at her
place of business or her home, or tried to contact Ms. Shoemaker in person;
rather Mr. Gianopoulos posted things about Ms. Shoemaker and the underlying lawsuit
on the internet and on his vehicle and a sign that he displayed in the front
yard of a piece of property.
Ms. Shoemaker argues that a
harassing course of conduct does not require that the harasser communicate
solely toward the individual as long as it comprises a series of acts that
seriously alarm, annoy, or harass the person, and that serves no legitimate
purpose under sections 527.6, subdivisions (b)(1) and (3). In support of this position, Ms. Shoemaker
cites to Brekke v. Wills, supra, 125 Cal.App.4th 1400 (Brekke).
In Brekke, supra, 125 Cal.App.4th 1400, the Third District
Court of Appeal addressed the requirements for an actionable course of conduct
under section 527.6. In that case, the
plaintiff's 16–year–old daughter, Danielle, began dating the defendant and soon
thereafter Danielle's school performance suffered and her relationship with her
parents deteriorated. The plaintiff told
her daughter the relationship with the defendant must end. Thereafter, the defendant called the plaintiff
and she attempted to explain why she was concerned about his relationship with
her daughter. However, the defendant " 'argued
every point' " and would not listen to what she had to say. He also laughed and cussed at her. The plaintiff became frustrated and ended the
conversation. When the plaintiff began
fearing Danielle was using drugs, she searched Danielle's room and found
letters to Danielle from the defendant that she considered disturbing. Some contained instructions on how Danielle
might retaliate against the plaintiff. (
Knowing the plaintiff had been
searching Danielle's room, the defendant gave Danielle three letters to plant
in the room with the expectation that the plaintiff would read them. In one letter, the defendant described a plan
to provoke the plaintiff or her husband into physically attacking him and then
suing them for money. The letter also
directed the plaintiff to turn to page eight, which was a separate letter to
the plaintiff containing highly abusive language and expressing the defendant's
belief in the futility of trying to keep him and Danielle apart. (Brekke,
In the third letter, the defendant set
forth a "fantastical scheme of torture-murder" involving rabid dogs
whereby he and Danielle could kill her parents. (Id. at p. 1407.)
reading the three letters, the plaintiff sought a temporary restraining order
and injunction against the defendant pursuant to section 527.6. (Brekke,
injunction. (Id.
at p. 1408.)
On appeal, the defendant argued,
among other things, that there was insufficient evidence of a course of conduct
sufficient to satisfy the requirement of section 527.6. The Court of Appeal rejected that argument,
finding sufficient evidence of a course of conduct from the three threatening
letters, the earlier letters written to Danielle instructing her on how to
retaliate against her parents, and the taunting telephone conversation between
the plaintiff and the defendant. (
125 Cal.App.4th at p. 1413.) The Court
of Appeal explained: "It is
the tone and
call that defendant
had no intention
of ceasing his
behavior toward plaintiff.
Thus,
all of his
course of conduct,
i.e., 'a series
of acts over
evidencing a continuity
of purpose . . . .' " (Id. at pp.
1413–1414.)
Ms. Shoemaker argues that
or conduct does not have to be addressed to a person to be "directed"
at that person. Ms. Shoemaker is missing
the point. The question is whether Mr.
Gianopolous's course of conduct of posting disparaging remarks about Ms.
Shoemaker falls within section 527.6, subdivision (b).
Ms. Shoemaker argues that although
section 527.6, subdivision (b)(1) provides three examples of harassing courses
of conduct—stalking, telephone calls to an individual, and correspondence to an
individual—the word "including" as used in this section is ordinarily
a term of enlargement rather than a limitation.
We do not disagree. Certainly,
" 'the statutory definition of a thing as "including"
certain things does not necessarily place thereon a meaning limited to the
inclusions.' " (
v. Flanagan (2002) 27
Cal.4th 766, 774.) However, here
we are guided by the doctrine of ejusdem
generis in determining whether the course of conduct that Mr. Gianopoulos
engaged in is "included" within section 527.6, subdivision (b)(1).
"[T]he doctrine of
Tenterden's rule] . . . states that where general words follow the enumeration
of particular classes of persons or things, the general words will be construed
as applicable only to persons or things of the same general nature or class as
those enumerated. The rule is based on
the obvious reason that if the Legislature had intended the general words to be
used in their unrestricted sense, it would not have mentioned the particular
things or classes of things which would in that event become mere surplusage."
(Scally
v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819; see Civ. Code,
§ 3534 [particular expressions qualify those which are general];
Cal. 142.) The doctrine of ejusdem
generis seeks to ascertain common characteristics among things of the same
kind, class, or nature when they are cataloged in legislative enactments. (Lawrence v. Walzer & Gabrielson (1989)
207 Cal.App.3d 1501, 1506; Martin v. Holiday Inns, Inc. (1988) 199
Cal.App.3d 1434, 1437 (Holiday Inns, Inc.)
Ejusdem generis is illustrative
of the more general legal maxim nocitur a sociis—"it is known from
its associates." (
Cal.App.3d at p. 1437.)
Applying the ejusdem generis maxim,
the conduct found here, without more, is simply not similar to the examples
listed in the statute; the examples listed in the statute have one thing in
common—they all consist of directly contacting a particular person. Since the conduct found here is not similar
to the examples listed in the statute, it cannot be included in the definition
of "course of conduct."
The case of R.D. v. P.M., supra, 202
Cal.App.4th 181 (R.D.) is instructive.
In that case, the course of conduct that was found to come within the
statute included the defendant, a former patient of the plaintiff therapist,
confronting the plaintiff at a local market, posting negative consumer reviews
on the internet and distributing flyers at the plaintiff's office on nine
occasions over a period of seven days and at the school plaintiff's son
attended with disparaging messages about the plaintiff, and engaging in volunteer
activities at the school plaintiff's children attended. (Id. at pp. 183, 189.) The Second District Court of Appeal concluded
that the evidence showed that "P.M. had come to the market at which R.D.
regularly shopped in order to confront R.D. in a threatening manner; that she
had come to R.D.'s son's school to distribute flyers in order to continue her
harassment and stalking of R.D. and her family; and that she had on many
occasions come in and around R.D.'s office building in a successful effort to
alarm R.D. and to put her in fear for her safety." (Id. at p. 189.)
The
restraining order in R.D. required P.M. to stay at least 100 yards away
from R.D. and members of her immediate family, their home, workplaces,
vehicles, and schools. It specified acts
of personal conduct that P.M. was to refrain from doing to R.D. or to members
of her immediate family, including harassing, attacking, threatening,
assaulting, or stalking them, destroying their personal property, keeping them
under surveillance, or blocking their movements. (R.D., supra,
at p. 187.) On appeal, P.M contended
that the order impermissibly infringed her constitutional freedom of speech
rights, because her distribution of flyers about R.D. addressed a matter of
public concern, and because the order constituted an overbroad content-based
prior restraint that burdened her speech more than is necessary to prevent the
harassment. (Id. at p. 191.) The Court of Appeal concluded, "To the
extent the order limits P.M.'s speech, it does so without reference to the
content of her speech. The restraining
order does not prevent P.M. from expressing her opinions about R.D. in any one
of many different ways; she is merely prohibited from expressing her message in
close proximity to R.D. and her family.
[¶] The order does not mention or
explicitly prohibit P.M. from engaging in any particular form of speech with
respect to R.D.—including the sorts of speech about which R.D. had complained
in her restraining order requests. It
does not mention or prohibit P.M. from making statements on any subject or of
any content, as long as she does so at a distance, and the statements' contents
do not constitute illegal harassment within the meaning of section 527.6. It does not prohibit P.M. from contacting
R.D.'s licensing agency, from distributing flyers about R.D., or from posting
derogatory criticisms of R.D. on internet sites. It only restrains P.M. from doing those acts
(or any others) within 100 yards of R.D. and members of her immediate family,
their home, workplaces, vehicles, and schools." (Ibid.)
The Court of Appeal recognized that the trial court "was careful to
disclaim any reliance on either the truth or falsity of P.M.'s disparaging
messages, or the contents of her internet postings, which it recognized to be
constitutionally protected." (Ibid.,
fn. 10.) Thus, implicitly, the R.D.
court recognized that posting disparaging comments about people on internet
sites is constitutionally protected activity.
We
are mindful that the injunction imposed in this case poses a danger that permanent
injunctive relief does not: that is that
potentially protected speech was enjoined prior to an adjudication on the
merits of the Mr. Gianopoulos's First Amendment claims. A judicial injunction, such as the one
imposed here that prohibits speech prior to a determination that the speech is
unprotected constitutes a prior restraint on that speech. (See Near v. Minnesota (1931) 283
U.S. 697.) Any system of prior
restraints of speech comes to this court bearing a heavy presumption against
its constitutional validity. (Southeastern
Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558; Bantam Books, Inc.
v. Sullivan (1963) 372 U.S. 58, 70; New York Times Co. v. United States
(1971) 403 U.S. 713, 714; Organization for a Better Austin v. Keefe (1971)
402 U.S. 415, 419.)
This
case involves an injunction issued prior to "a final adjudication on the
merits that the speech is unprotected." Hence, the danger posed by prior restraint is
present in this case. Certainly, valid
time, place and manner restrictions which do not functionally prohibit
are not prior restraints" (see, e.g., Poulos v. New Hampshire (1953)
345 U.S. 395,
408; Cox v. New Hampshire (1941) 312 U.S. 569, 574-576; cf. Organization
for a Better Austin v. Keefe, supra,
402 U.S. at pp. 418-419), such as the one imposed in R.D., supra, at page 187. The injunction in this case, however, is
subject-matter censorship—entirely prohibiting Mr. Gianopoulos from publishing
a particular type of information related to Ms. Shoemaker and the underlying
medical malpractice case. Therefore, it
poses the precise danger of prior restraint identified in Pittsburgh Press
Co. v. The Pittsburgh Commission on Human Relations (1973) 413 U.S. 376 (Pittsburgh
Press Co.); that is, "the special vice . . . that communication will
be suppressed, either directly or by inducing excessive caution in the speaker,
before an adequate determination that it is unprotected by the First Amendment." (Id. at p. 390.) Further, as the United States Supreme Court
pointed out in Snyder v. Phelps (2011) 562 U.S.
S.Ct. 1207] (Snyder), "speech
cannot be restricted simply because it is upsetting or arouses contempt. 'If there is a bedrock principle underlying
the First Amendment, it is that the government may not prohibit the expression
of an idea simply because society finds the idea itself offensive or
disagreeable.' [Citation.] Indeed, 'the point of all speech protection . .
. is to shield just those choices of content that in someone's eyes are
misguided, or even hurtful.'
[Citation.]" (
Furthermore,
"[i]n most circumstances, 'the Constitution does not permit the government
to decide which types of otherwise protected speech are sufficiently offensive
to require protection for the unwilling listener or viewer. Rather, . . . the burden normally falls upon
the viewer to avoid further bombardment of [his] [or her] sensibilities simply
by averting [his] [or her] eyes.'
[Citation.] As a result, '[t]he
ability of government, consonant with the Constitution, to shut off discourse
solely to protect others from hearing it is . . . dependent upon a showing that
substantial privacy interests are being invaded in an essentially intolerable
manner.' [Citation.]" (Snyder,
supra,
at p. 1220.)
Mr.
Gianopoulos believes that Ms. Shoemaker has something to do with a conspiracy
to cover up medical malpractice. His speech
is certainly hurtful and its contribution to public discourse may be insignificant. However, it is quite apparent that he believes
that he is addressing a matter of public concern—a conspiracy to cover up
medical malpractice in the health care industry. As such, unless or until his First Amendment
claims are fully adjudicated and
determined to not be protected, and he communicates his tirade directly to Ms.
Shoemaker, an injunction such as the order filed on May 29, 2012, in this case
cannot lie.
Disposition
The order filed May
29, 2012,
is reversed. In the interests of
justice, each party shall bear their own costs on appeal.
_________________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
name="_ftn1" title="">[1] We deny Ms.
Shoemaker's request to strike significant portions of Mr. Gianopoulos's opening
brief and reply brief on the basis that Mr. Gianopoulos makes factual
assertions without citation to the record in violation of California Rules of
Court, rule 8.204(a)(1)(C). When an
appellate brief contains references to matters not supported by the record on
appeal, we can simply ignore these references rather than strike them. (Cal. Rules of Court, rule 8.204(e)(2)(C); Connecticut
Indemnity Co. v. Superior Court (2000) 23 Cal.4th
807, 813, fn. 2.) Ignoring these
references we will address Mr. Gianopoulos's issues. Further, we deny Mr. Gianopoulos's motion for
sanctions against Ms. Shoemaker and her attorney Benjamin Ikuta. In essence, Mr. Gianopoulos is claiming that
Mr. Ikuta and Ms. Shoemaker made false claims to obtain the restraining order. An appellate court may impose sanctions where
a party or attorney included in the record any matter not reasonably material
to the appeal's determination; filed
a frivolous motion; or committed any other unreasonable violation of the
California Rules of Court. (Cal. Rules
of Court, rule 8.276(a)(2)-(4), italics added.)
Mr. Gianopoulos's motion for sanctions is directed at what went on in
the lower court, not what is happening on appeal.
name="_ftn2" title="">[2] All unspecified
section references are to the Code of Civil Procedure.
