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Stutz v. Larkins Appeal #1
Petition for Writ
California Court of Appeal
Petition for Writ
California Court of Appeal
FIRST AMENDMENT WRIT
I. INTRODUCTION
A. STATEMENT OF URGENCY
Petitioner asks for a stay of all proceedings to prevent San Diego Superior
Court from carrying through on its threat of finding petitioner in contempt of
court for violating the
court’s extremely broad and vague permanent injunctions
regarding petitioner’s speech (Exhibits 1 through 5).
In addition to Plaintiff’s requests that petitioner be sanctioned with severe financial
penalties and five days in jail, the court itself has specifically threatened to strike
petitioner’s 2007 Answer to Complaint, thus granting a default to Plaintiff--even though
over a year ago the same judge granted Plaintiff a summary judgment regarding
defamation.
Petitioner’s requests for a jury trial regarding damages have been ignored.
Instead of a jury trial, Judge Judith Hayes has designed a series of ever-expanding
permanent injunctions, each one more unconstitutional than the last. The judge’s
stated purpose is to prevent defendant from having to pay damages. The actual
purpose seems to be to shut down defendant’s website in violation of the First
Amendment.
The latest injunction permanently bans Defendant from mentioning the name of Plaintiff
or any of its attorneys on any of her websites. This shockingly overbroad injunction was
initiated by the judge; Plaintiff did not even ask for it.
Since the Superior Court appears to be doing all it can to prolong this case, delaying a
final judgment and thus preventing a typical appeal, an extraordinary writ is necessary
to prevent irreparable harm to petitioner and the public. A temporary stay followed by a
determination of the constitutionality of the permanent injunction is urgently needed in
this case.
B. WHY STAY AND WRIT RELIEF SHOULD BE GRANTED
In a shocking violation of the First Amendment, Superior Court Judge Judith Hayes used
the five statements following this paragraph to justify a permanent injunction forbidding
petitioner ever to mention the name of Stutz, Artiano, Shinoff & Holtz, or attorneys Dan
Shinoff or Leslie Devaney. The judge did not write a decision declaring the statements
to be defamatory (see minute order October 30, 2009—Exhibit 44). In fact, she denied
Plaintiff’s October 30, 2009 Motion to Strike Answer (Exhibit 38) asking the court to find
petitioner in contempt for these statements. What the judge did was to opine in her
spoken comments at the October 30, 2009 hearing (Exhibit 43) that the statements were
a violation of her April 6, 2009 injunction against accusing Plaintiff of illegal or unethical
conduct, and to institute an injunction that Plaintiff had not asked for, and which had not
been discussed in the pleadings. If the judge feels that these simple factual
statements—and, in the case of statement number 3, an expression of petitioner’s
distaste for behavior she finds exploitative but not illegal or unethical--indicate unethical
or illegal actions, the judge has an obligation to report Plaintiff to the Bar Association,
which would be quite the opposite of silencing petitioner.
The five statements:
1. “Who trains school attorneys? Attorneys who have helped schools avoid
revealing events in schools are in charge of training both new board members
and new school attorneys…Dan Shinoff trains board members and employees as
well as attorneys.”
2. “One of Daniel Shinoff’s specialties is planning legal tactics against parents
who complain that their kids aren’t getting the right education.”
3. “Shinoff should be ashamed of misusing the suffering of his wife’s relatives
to gain an advantage in the courtroom.”
4. “Stutz law firm itself used the courts to try to force a paid expert witness to
testify as the school district wished” [Vista Unified School District v. Dr. B. J.
Freeman, a case that was wisely dropped by the school district in its early stages].
5. “DEVANEY WAS THE NUMBER 2 OFFICIAL IN THE OFFICE OF CITY ATTORNEY
when the city made deals which the SEC and the FBI are now investigating.
Perhaps this one bit of information explains why Devaney is outraged at Aguirre’s
efforts to expose the facts about actions by public officials! The law firm of Stutz,
Artiano, Shinoff & Holtz, to which the SDCOE JPA steers the lion’s share of its
cases, is closely tied to right-wing Republicans such as Lesley Devaney. Devaney
joined the Stutz law firm after losing to Michael Aguirre in the race for San Diego
City Attorney. Devaney has recently admitted that if she had been elected, she
would HAVE HELPED city officials and employees, not the public, regarding the
secret 2002 pension underfunding deal. I think the city attorney should, in the
public interest, demand explanations from officials.”
As seen in the reporter’s transcript (Exhibit 43), the court threatened on October 30,
2009 to find petitioner in contempt of court. An Order to Show Cause why petitioner
should not be found in contempt is scheduled for March 5, 2010.
C. HARM TO PETITIONER AND THE PUBLIC
Damage will occur to petitioner and the public without an immediate stay on the Superior
Court proceedings and a determination of the constitutionality of the three permanent
injunctions created by the Superior Court. Petitioner is harmed by her loss of freedom
of speech. Also, the time lost by petitioner during months of work erasing all mention of
Plaintiff from her websites could never be regained and serves no purpose other than to
harm petitioner and the public. The inability to mention Plaintiff or any of its attorneys
would be extremely damaging to petitioner’s website, which focuses on public entities
and their lawyers. The public’s loss of its access to information during this time would
be a suspension of its constitutional rights and would be harmful to all who need this
information at this time. Even a temporary disappearance of information about Plaintiff
can cause the web address to fall in the ratings on Internet search engines, making it
unavailable to those seeking information about Plaintiff. Finally, threatened financial
damage and loss of freedom would be harmful to petitioner.
II. AUTHENTICITY OF EXHIBITS
The exhibits accompanying this petition are true and correct copies of original
documents filed with respondent court.
III. BENEFICIAL INTEREST OF PETITIONER
Petitioner has a clear, present and beneficial right to the performance of the judge’s
public duty and the execution of the laws in a matter concerning a private and public
right.
(Code Civ. Proc., § 1086; Green v. Obledo
(1981) 29 Cal.3d 126, 144; see also California Homeless & Housing
Coalition v. Anderson (1995) 31 Cal.App.4th 450, 457-458.)
IV. CAPACITIES OF RESPONDENT AND REAL PARTY IN INTEREST.
1. Petitioner Maura Larkins is a party in the Stutz Artiano Shinoff & Holtz APC v.
Maura Larkins defamation case that is now pending before San Diego Superior Court.
She has been ordered by the San Diego County Superior Court to show on March 5,
2010 why she should not be held in contempt of court and sanctioned, including five
days in jail, approximately $10,000 in fines, the striking of her answer and other
sanctions.
2. Respondent is the San Diego County Superior Court, which entered the
injunction orders challenged in this petition.
3. Real party in interest is Plaintiff Stutz, Artiano Shinoff & Holtz, APC, who prepared
the injunction orders for the judge to sign.
V. TIMELINESS OF THE PETITION AND STATEMENT OF APPEALABILITY
An injunction can be challenged at any time as long as it is in force. The injunction in
question is a permanent injunction. On January 20, 2010 I learned of December 11,
2009 signing of proposed order that was dramatically different from the minute order of
October 30, 2009. The December 11, 2009 order was signed about a month after the
proposed order was filed by Plaintiff STUTZ. Plaintiff did not serve it on Defendant until
January 20, 2009 when Defendant asked Plaintiff if the order had been signed.
This Petition presents no questions of fact for the Court to resolve in order to issue the
relief sought.
VI. GROUNDS FOR AN IMMEDIATE STAY
A stay is needed to stop proceedings on March 5, 2010 regarding Order to Show Cause
re contempt. A stay was requested from and denied by the trial court on February 18,
2010. Minute order denying stay February 18, 2010 exhibit 44; Petitioner’s pleading is
Exhibit 43. Plaintiff filed no opposition, although it was specifically asked by the court
on February 18, 2010, before the hearing, if it wished to submit a pleading.
Plaintiff was served with this Request for Stay before the filing of this petition.
Real party in interest will not be prejudiced by a stay.
VII. BASIS FOR RELIEF.
A. ABSENCE OF OTHER REMEDIES.
Petitioner has no adequate, legal remedy other than writ relief.
B. IRREPARABLE INJURY
Petitioner faces the loss of a successful website on which she has worked for over four
years, and hours of wasted effort, loss of right to speak freely on matters of pubic
interest, a constitutional right, and even faces large financial losses and jail time.
VIII. PUBLIC INTEREST
The issues presented here are of great public importance and should be resolved
promptly. It is in the public interest to resolve the questions presented in this petition.
IX. RELIEF REQUESTED
Petitioner seeks a writ of mandate/prohibition pursuant to CCP section 1085 enjoining
San Diego Superior Court from enforcing, taking any steps to enforce, or directing any
persons or entities to enforce its permanent injunctions issued on April 6, 2009, October
30, 2009 or December 11, 2009 or its order of September 18, 2009.
The following circumstances make it proper and necessary that a writ issue from this
Court. The trial court abused its discretion when it improperly instituted unconstitutional
permanent injunctions, refused to allow petitioner to obtain discovery, allowed Plaintiff to
abuse the discovery process, refused to allow petitioner to make objections, and
refused to clarify its sardonic and cryptic decisions as petitioner requested.
WHEREFORE, Petitioner prays that this Court:
1. Issue a stay of contempt proceedings while the Court of Appeal hears this
petition;
2. Issue a peremptory writ in the first instance directing the Superior
Court:
(1) to vacate its permanent injunctions of April 6, 2009 (Exhibit 1), October 30, 2009
(Exhibit 3) and December 11, 2009 (Exhibit 5);
(2) that any future injunctions of the Superior Court be limited to statements found to be
defamatory;
(3) that the Superior Court proceed with a jury trial to determine damages regarding the
defamation found by the judge in her summary judgment on February 20, 2009 (Exhibit
26 minute order and Exhibit 28, March 26, 2009 entered order);
(4) to reverse its order of September 18, 2009 (Exh. 2) which expanded the
interpretation of the April 6, 2009 injunction in a manner that makes it so vague that any
statement Plaintiff doesn’t like is forbidden by the injunction;
(5) to clarify and explain its decisions and to allow petitioner to make objections so that
decisions can be obeyed and appealed.
3. Grant such other and further relief as the Court may deem just and proper.
_________________________________
Maura Larkins
March 4, 2010
X. MEMORANDUM OF POINTS AND AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
A. FIRST AMENDMENT WRIT
It is false and preposterous to claim that Defendant voluntarily gave up her First
Amendment Rights (beyond the short list of words she agreed not to use) when she
signed an agreement on April 6, 2009 to abide by the limitations expressed in Exhibit 1.
It is also false and preposterous for the court to claim that the April 6, 2009 injunction
forbids petitioner’s statements that were described in Plaintiff’s October 30, 2009 Motion
to Strike Answer and Find Contempt (Exh. 30) to be in violation of injunction. The judge
did not write this finding down, but she explained it verbally (Exh. 43 transcript of
hearing). These are the five offending statements that caused Judge Hayes to order
petitioner never to mention Plaintiff or its attorneys:
“Who trains school attorneys? Attorneys who have helped schools avoid revealing
events in schools are in charge of training both new board members and new school
attorneys…Dan Shinoff trains board members and employees as well as attorneys.”
These are simple facts. This is what schools pay Dan Shinoff to do. Some events are
rightly concealed, but the public has a right to discuss the limits of secrecy in public
schools. Plaintiff and Judge Hayes know that this is not considered illegal or unethical
behavior, and petitioner does not claim that it is.
One of Daniel Shinoff’s specialties is planning legal tactics against parents who
complain that their kids aren’t getting the right education.” This is a simple fact.
This is what schools pay Dan Shinoff to do. Plaintiff and Judge Hayes know that this is
not considered illegal or unethical behavior, and petitioner does not claim it to be.
“Shinoff should be ashamed of misusing the suffering of his wife’s relatives to gain an
advantage in the courtroom.” This is an expression of petitioner’s distaste for
behavior she finds exploitative, but not illegal or unethical. If the judge finds otherwise,
the judge has an obligation to report Plaintiff to the Bar Association.
4. (a) “Attorney Dan Shinoff fools the US Office of Civil Rights
(b) “…In fact, Stutz law firm itself used the courts to try to force a paid expert witness to
testify as the school district wished.” (a) This statement was removed from petitioner’
s website.
(b)This is a factual description of the Vista Unified School District v. Dr. B. J. Freeman
case, in which Vista Unified School District sued a psychologist for refusing to testify that
a student did not need special education services. The school district dropped the
case, but the file is still a public record. Defendant did not accuse Plaintiff of unethical
or illegal behavior, but merely stated the facts of the case. If the judge finds that Plaintiff
attorneys behaved in an illegal or unethical manner in this case, which she apparently
has, she has a duty to report Plaintiff to the proper authorities, not create an injunction
to silence petitioner.
5. “DEVANEY WAS THE NUMBER 2 OFFICIAL IN THE OFFICE OF CITY ATTORNEY
when the city made deals which the SEC and the FBI are now investigating. Perhaps
this one bit of information explains why Devaney is outraged at Aguirre’s efforts to
expose the facts about actions by public officials! The law firm of Stutz, Artiano, Shinoff
& Holtz, to which the SDCOE JPA steers the lion’s share of its cases, is closely tied to
right-wing Republicans such as Lesley Devaney. Devaney joined the Stutz law firm after
losing to Michael Aguirre in the race for San Diego City Attorney. Devaney has recently
admitted that if she had been elected, she would HAVE HELPED city officials and
employees, not the public, regarding the secret 2002 pension underfunding deal. I think
the city attorney should, in the public interest, demand explanations from officials.”
This is protected political speech. Clearly, petitioner did not accuse Leslie Devaney of
unethical actions or legal violations. Petitioner simply disagreed with an article written
by Leslie Devaney, arguing that Devaney’s position was counter to the public interest.
This is a political discussion. Ironically, the California Bar Association agrees with Leslie
Devaney regarding an attorney’s obligation to represent an entity. So how did Judge
Hayes come to the conclusion that Devaney was being accused of unethical or illegal
behavior? Apparently the court that has determined that Devaney’s behavior was
unethical or illegal, and has determined that the injunction forbids petitioner from
discussing Devaney’s behavior when it is unethical or illegal, even if petitioner does not
characterize it as such. The fact is that Judge Judith Hayes’ rulings make no sense at
all.
The trial judge’s stated purpose is to prevent defendant from having to pay damages
(Exhibit 43, transcript of October 30, 2009 hearing on Motion to Strike.) Judge: “I’m
doing this so I won’t have to issue a default (referring to Exh. 38, the Motion to Strike
Answer due to Defendant’s “contempt”, the Motion that was denied. This was also what
the court said on April 6, 2009 when it engineered the first injunction. It is not the court’
s job to protect me from money damages, it’s the court’s job to uphold the law.
Petitioner has repeatedly requested a jury trial to determine the damages; the court has
no right to deny that to her.
II. PRIOR RESTRAINT IS THE MOST SERIOUS AND LEAST TOLERABLE
INFRINGEMENT ON FIRST AMENDMENT RIGHTS
The United States prior restraint is the “most serious and the least tolerable
infringement on First Amendment rights.” (Nebraska Press Ass’n v. Stuart (1976) 427 U.
S. p. 559.)
Balboa Island Village Inn, Inc. v. Lemen (2007)40 Cal.4th 1141 , 57 Cal.Rptr.3d 320;
156 P.3d 339 is probably the most applicable case in the instant situation. Clearly,
Judge Hayes is allowed to use prior restraint ONLY in regard to specific statements that
have been found to be defamatory. The court in Balboa Island Village states: “a
properly limited injunction prohibiting defendant from repeating to third persons
statements … that were determined at trial to be defamatory would not violate
defendant's right to free speech. [40 Cal.4th 1147]
“Like all gag orders, particularly permanent ones, the trial court’s order is presumptively
invalid,” states the court in Freedom Communications, Inc. v. Superior Court (Gonzalez)
(2008)167 Cal.App.4th 150, Cal.Rptr.3d. The court also states: “[W]e determine the
trial court’s order …is a prior restraint that plainly violates the press freedoms
guaranteed by the United States and California Constitutions. Because “petitioner[s’]
entitlement to the relief requested is so obvious that no purpose could be served by
plenary consideration of the issue,” we issue a peremptory writ of mandate in the first
instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)… A prior restraint is
the “most serious and the least tolerable infringement on First Amendment rights.” (Id.,
at p. 559.) Such an order is a “most extraordinary remedy” that may be used “only in
‘exceptional cases’ . . . where the evil that would result from the reportage is both great
and certain and cannot be militated by less intrusive measures.” (CBS, Inc. v. Davis
(1994) 510 U.S. 1315, 1317 (Blackmun, J., in chambers).) The United States Supreme
Court has offered two examples of the sort of “exceptional” situations in which a prior
restraint might be justified: to prevent the dissemination of information about troop
movements during wartime (Near v. State of Minnesota (1931) 283 U.S. 697, 716) or to
“suppress[] information that would set in motion a nuclear holocaust.” (New York Times
Company v. United States (1971) 403 U.S. 713, 726 (Brennan, J., concurring).) …The
same result obtains under the California Constitution, which “provides an even broader
guarantee of the right of free speech and the press than does the First Amendment.
[Citation.]” (Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144 -1145;
see Cal. Const., art. I, § 2, subd. (a).) Because we conclude the order preventing The
Register from reporting on trial testimony is unconstitutional under both the United
States and California Constitutions, it must immediately fall. “[E]very moment’s
continuance of [a prior restraint] amounts to a flagrant, indefensible, and continuing
violation of the First Amendment.” (New York Times v. United States, supra, 403 U.S. at
p. 715 (Black, J., concurring).)…Let a peremptory writ of mandate issue directing the
superior court to vacate its order prohibiting The Register from reporting on the trial
testimony of witnesses during the pendency of the trial.” New York Times Company v.
United States, 403 U.S. at p. 714 also forbids prior restraint.
C. STAY
Petitioner requested stay from the Superior Court re March 5, 2010 contempt
proceedings (Exh. 55), but Judge Hayes denied the request (Exh. 56).
In Blanche v Superior Court (1939) 35 CA2d 740, 741, 96 P2d the court issued a
prohibition to arrest proceedings to hold petitioner in contempt.
D. Prohibition can restrain continuing or incomplete judicial action
In City & County of San Francisco v Superior Court (1959) prohibition issued to restrain
the trial court from further proceedings after the court issued a temporary restraining
order that was in excess of its jurisdiction.
Prohibition can restrain continuing or incomplete judicial action.
E. PUBLIC INTEREST
Plaintiff’s actions are very much on the mind of voters, taxpayers and the media at the
present time (see Petition Exhibit 45, and the exhibits 4, 5, 6 attached), and citizens
have a right to the information on Defendant’s website. Petitioner has political
opinion and public documents on her site which are accessed by many visitors trying to
learn about schools, the law and the filing of legal documents.
Defendant’s website is a resource for the public as it attempts to access to the legal
system. The site provides the public with information about San Diego public schools
and public entities such as the San Diego County Office of Education—Joint Powers
Authority (“SDCOE—JPA”). The public not only elects the members of the boards of
these public entities and supplies all their funds, but depends on these institutions to
educate their children. The public therefore has an interest in making sure that these
entities not only obey the law but also use good judgment. There is no democracy when
public entities allow the public to know only what they want it to know.
Plaintiff attorney Daniel Shinoff is the premier attorney for SDCOE—JPA. It is impossible
to discuss the lawsuits and legal affairs of the SDCOE—JPA and its member schools
without referring to Daniel Shinoff and his partners and associates. Public has right to
know about cases on which it spends millions of dollars a year. In addition, Plaintiff does
legal work for many other southern California school districts and public entities and
their insurance brokers.
F. PUBLIC ENTITY
Public entities are not allowed to sue for defamation, but as Defendant has pointed out
again and again in her pleadings to the Superior Court, Plaintiff is working on behalf of
two public entities in this case, Chula Vista Elementary School District and San Diego
County Office of Education. Tax money has been paid to Plaintiff to work to protect
these two entities from discovery in this case, including a shocking request for
restraining order against Defendant in retaliation for trying to serve SDCOE-JPA director
Diane Crosier. Fortunately, a separate courtroom heard that request, and rejected it.
Defendant’s interest is in Plaintiff’s actions on behalf of public entities (and its private
actions on behalf of employees in positions of power in those entities).
IV. ABUSE OF DISCRETION: The April 6, 2009 permanent injunction is an illegal prior
restraint and court’s interpretations and expansions of the injunction are
unconstitutionally broad and vague
A big problem in this case is the court’s continued refusal, despite Defendants
continued requests, to explain its decisions. The court’s orders simply grant the motions
of Plaintiff, apparently in their entirety and without explanation, even though the wording
of the motions is often hopelessly vague and broad.
So far in this case, the court has found that the injunction means whatever Plaintiff
wants it to mean. The court has offered no explanations for its decisions, and placed no
limits on what statements Plaintiff may choose to have censored.
The court has yet to indicate that there is any limit at all to the reach of this injunction.
Defendant believes that the court order is based on an unconstitutionally broad and
vague interpretation of the injunction.
Plaintiff’s allegations assume that the court intended its ruling to exceed not just the
injunction, but the Constitutions of California and the United States. Plaintiff has turned
a defamation case into a free speech case by making demands that cannot be justified
by any reasonable interpretation of the injunction. Plaintiff claims that the court
intended to say that the following five tactics engaged in by Stutz are illegal, unethical,
incompetent or intimidating. Plaintiff further claims that Defendant knew that the
following actions are illegal, unethical, incompetent or intimidating, and asks on that
basis that the court find Defendant in contempt.
United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009) “…Today, after
review of our cases and relevant Supreme Court precedent, we re-state the “abuse of
discretion” standard of review of a trial court’s factual findings as an objective two-part
test. As discussed below, our newly stated “abuse of discretion” test requires us first to
consider whether the district court identified the correct legal standard for decision of
the issue before it. Second, the test then requires us to determine whether the district
court’s findings of fact, and its application of those findings of fact to the correct legal
standard, were illogical, implausible, or without support in inferences that may be drawn
from facts in the record…detailed formulations of the abuse of discretion standard tend
to incorporate multiple standards of review, each of which is applied to a discrete step in
a multiple-step analysis as to whether the trial court abused its discretion.
The original permanent injunction issued in the instant defamation case by San Diego
Superior Court on April 6, 2009 contained an unconstitutional prior restraint: that
petitioner not accuse Plaintiff of illegal or unethical…” actions. The court was legally
entitled only to issue an injunction against specific statements the judge had declared to
be defamatory in her summary judgment. However, petitioner was willing to obey the
injunction, feeling that simply stating the facts about Plaintiff’s actions without giving an
opinion about their ethical or legal characteristics was an acceptable limitation for her
website.
But on August 7, 2009, the judge interpreted the injunction in a manner that made it
unlimited in its applications, interpreting the injunction as infinitely broad and so vague
that it was impossible for petitioner to know if any statement at all could pass its test. As
it turned out, the judge made clear on October 30, 2009 that no statement could ever
pass the test of the April 6, 2009 injunction.
On August 7, 2009 Judge Judith Hayes went considerably farther into unconstitutional
territory when she interpreted her own injunction. It was not enough that defendant
ceased to accuse Plaintiff of having conducted itself improperly. On August 7, 2009
Judge Hayes decided that defendant was permanently barred from discussing any
conduct at all of the public entity law firm plaintiff, if plaintiff argued that the described
conduct would be illegal, etc. if plaintiff had indeed committed it. Defendant did not
characterize the conduct at issue as improper, but she did provide evidence to support
the facts she claimed. In some cases, the evidence included multiple stories in the
mainstream media. It is startling that a law firm would argue that its behavior was
improper, but it is even more startling that the judge would fail to report the admitted
unethical behavior to the California State Bar as she is legally required to do, and
instead order Defendant not to discuss it.
Judge Judith Hayes’ actions became even more unconstitutional on October 30, 2009
when she ordered defendant to remove all mention of Plaintiff from her website(s).
On December 11, 2009 Judge Hayes signed her most recent order, permanently
banning Defendant from mentioning the name of Plaintiff or any of its attorneys past,
present or future. The breadth of this prior restraint is mind-boggling in its
unconstitutionality, and calls out for reversal by the Court of Appeal.
In Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551 , 1 Cal.Rptr.3d
245 the Court held that newspaper was allowed to draw conclusions about plaintiffs.
“STIPULATED INJUNCTION” WAS BOTH UNCONSTITUTIONAL, AND OBTAINED
THROUGH FRAUD
The idea that on April 6, 2009 I signed away my right ever to mention the name of
Plaintiff on any website is preposterous. I can’t sign away my first amendment rights. I
signed an agreement not to say Plaintiff violated ethics or laws; it turns out that neither
the judge nor the Plaintiff intended that the agreement would be interpreted as
discussed on April 6, 2009.
Plaintiff and judge were apparently planning to interpret the April 6, 2009 agreement in
a way that petitioner could not have imagined
The April 6, 2009 injunction document was obtained through a bait-and-switch
operation, consisting of three parts:
1) get the defendant to sign an agreement that she will not accuse Plaintiff of
violations of laws or ethics;
2) (illegally) turn the agreement into an injunction;
3) Plaintiff and court preposterously interpret the “stipulated injunction” to mean
that defendant can not report on her website ANY action by Plaintiff if Plaintiff and the
court find that the action is a violation of law or ethics, even though defendant has made
no such accusation.
4) The judge tries to convince Defendant that she has signed away her First
Amendment rights; Defendant does not have the authority to give the judge permission
to violate the constitution.
5) The judge does not report the violations of law or ethics that she has found
Stutz, Artiano Shinoff & Holtz to be guilty of;
6) The judge threatens to strike Defendant’s answer and find her in Default if she
mentions the name of Plaintiff on any website.
This lawsuit has been hijacked and is being used as a vehicle to drive illegal censorship.
The court’s interpretation of the injunction is counter to the wording and original intent
of the injunction when it was prepared on April 6, 2009
Defendant and Plaintiff clearly understood on April 6, 2009, when they co-wrote the
Injunction, that the injunction forbade Defendant from stating that Plaintiff had engaged
in illegal, unethical, intimidating or incompetent behavior. The injunction did NOT say
that Defendant was forbidden to report Plaintiff’s actions, just that she could not
characterize those actions as illegal, unethical, intimidating or incompetent. In its
motions since that date, Plaintiff has created a new and unconstitutionally broad and
vague interpretation of the injunction.
The court granted Plaintiff’s August 7, 2009 motion without explanation. Defendant has
not been given an opportunity to argue against the decision since the court limited her
time to speak and refused to clarify its decision, and also failed to enter the order so as
to allow Defendant to file a Motion for Reconsideration.
The injunction clearly specifies and forbids a short list of statements that would be
defamatory if they were false. It refers to specific words (illegal, unethical, incompetent)
that would be defamatory per se if they were false, plus the word “intimidation”.
Synonyms of those words are also forbidden by the injunction (i.e. “criminal”), but
Defendant is free to report on Plaintiff’s actions as long as she does not claim that those
actions are illegal, unethical, intimidating or incompetent. Defendant agreed not to
make these statements even if they are true.
Defendant did not agree to censor, and the injunction does not require her to censor,
any speech outside this list of specific statements. On April 6, 2009 Defendant
discussed with Plaintiff’s lawyers James F. Holtz and Jeffrey Wade, Jr. this precise issue:
that Defendant would be free to report on Plaintiff’s actions, but would not be free to
describe them as illegal, unethical, incompetent or intimidating. Plaintiff agreed. The
idea that Defendant voluntarily gave up her First Amendment Rights beyond these
limited parameters is preposterous.
If at the time the agreement on the injunction was signed, April 6, 2009, Plaintiff
intended to interpret the agreement as it has done in its Reply to Defendant’s
Opposition to the instant motion, then Plaintiff obtained Defendant’s agreement through
deceit and fraud. This issue was thoroughly discussed by Plaintiff and Defendant. We
conferred for hours, We discussed in detail exactly what the agreement meant.
The Reply regarding the August 7, 2009 motion seems to have been written by
someone who had not been involved in this case previously; it claims an entirely new
interpretation of the injunction. Interestingly, the August 7, 2009 motion marks Stutz
attorney Leslie Devaney’s debut as an issue in this case. Defendant suspects that Ms.
Devaney wasn’t mentioned in previous pleadings by Plaintiff in order to make it possible
for the court to find that the Stutz lawyers at issue were private figures. This is bait and
switch, a classic fraudulent practice.
Defendant’s behavior has been consistent with the clear meaning of the injunction.
Defendant has continued to report on Stutz law firm, but have avoided any of the
defamatory-when-false statements clearly specified in the injunction.
The Reply states, “[The injunction]… applies to all statements that even accuse SASH
or its attorneys of certain conduct” (page 2, lines 19-20). This is incorrect and absurd.
The injunction refers to words Defendant may not use to describe Plaintiff’s conduct, not
her freedom to discuss Plaintiff’s conduct itself. Plaintiff is free to report Stutz law firm’s
conduct as long as she doesn’t characterize it as illegal, unethical, incompetent, or
intimidating.
Plaintiff’s Reply claims that the injunction sets up a system in which the court will
determine whether any reported action by plaintiff is unethical or illegal or incompetent
or an act of intimidation. It does not. In fact, the injunction prevents defendant from
using specific words (unethical, incompetent, intimidating, illegal, etc.) to describe
plaintiff. The injunction does not deny freedom of speech to defendant.
This wording of the injunction was not created by the court, but by the parties. Its intent
was clear. It should not be reinterpreted now. The injunction is about WORDS ONLY,
NOT ACTIONS. The court does not have the authority to restrict legal free speech, and
Defendant did not agree to do so.
Defendant has not been given an opportunity to argue against the decision since the
court limited her time to speak and refused to clarify its decision, and also failed to enter
the order so as to allow Defendant to file a Motion for Reconsideration.
CONCLUSION
This case cries out for interference from a higher court to preserve the integrity of the
Superior Court.
Dated: March 4, 2010
Respectfully submitted,
By:___________________
Maura Larkins, petitioner
XI. VERIFICATION
State of California County of San Diego
I, the undersigned, under penalty of perjury under the laws of the State of California,
say:
I am the petitioner in this action. All facts alleged in the above document are true of my
own personal knowledge. I have read the above Petition for Writ of Mandate/Prohibition
and know its contents. All facts alleged in the petition are true of my own personal
knowledge. All documents contained in the Appendix filed in conjunction with and in
support of this writ petition are true and correct copies of said documents filed in the trial
court. I declare under penalty of perjury that the foregoing is true and correct and that
this affidavit was executed on March 4, 2010 at El Cajon, California.
_________________________________________
Maura Larkins, petitioner
XII. CERTIFICATE OF WORD COUNT
The foregoing Petition contains 5,778 words (excluding tables and this Certificate). In
preparing this certificate, I relied on the word count generated by MS Word 2003.
Executed on March 4, 2010 at El Cajon, California.
____________________________
Maura Larkins, petitioner
I. INTRODUCTION
A. STATEMENT OF URGENCY
Petitioner asks for a stay of all proceedings to prevent San Diego Superior
Court from carrying through on its threat of finding petitioner in contempt of
court for violating the
court’s extremely broad and vague permanent injunctions
regarding petitioner’s speech (Exhibits 1 through 5).
In addition to Plaintiff’s requests that petitioner be sanctioned with severe financial
penalties and five days in jail, the court itself has specifically threatened to strike
petitioner’s 2007 Answer to Complaint, thus granting a default to Plaintiff--even though
over a year ago the same judge granted Plaintiff a summary judgment regarding
defamation.
Petitioner’s requests for a jury trial regarding damages have been ignored.
Instead of a jury trial, Judge Judith Hayes has designed a series of ever-expanding
permanent injunctions, each one more unconstitutional than the last. The judge’s
stated purpose is to prevent defendant from having to pay damages. The actual
purpose seems to be to shut down defendant’s website in violation of the First
Amendment.
The latest injunction permanently bans Defendant from mentioning the name of Plaintiff
or any of its attorneys on any of her websites. This shockingly overbroad injunction was
initiated by the judge; Plaintiff did not even ask for it.
Since the Superior Court appears to be doing all it can to prolong this case, delaying a
final judgment and thus preventing a typical appeal, an extraordinary writ is necessary
to prevent irreparable harm to petitioner and the public. A temporary stay followed by a
determination of the constitutionality of the permanent injunction is urgently needed in
this case.
B. WHY STAY AND WRIT RELIEF SHOULD BE GRANTED
In a shocking violation of the First Amendment, Superior Court Judge Judith Hayes used
the five statements following this paragraph to justify a permanent injunction forbidding
petitioner ever to mention the name of Stutz, Artiano, Shinoff & Holtz, or attorneys Dan
Shinoff or Leslie Devaney. The judge did not write a decision declaring the statements
to be defamatory (see minute order October 30, 2009—Exhibit 44). In fact, she denied
Plaintiff’s October 30, 2009 Motion to Strike Answer (Exhibit 38) asking the court to find
petitioner in contempt for these statements. What the judge did was to opine in her
spoken comments at the October 30, 2009 hearing (Exhibit 43) that the statements were
a violation of her April 6, 2009 injunction against accusing Plaintiff of illegal or unethical
conduct, and to institute an injunction that Plaintiff had not asked for, and which had not
been discussed in the pleadings. If the judge feels that these simple factual
statements—and, in the case of statement number 3, an expression of petitioner’s
distaste for behavior she finds exploitative but not illegal or unethical--indicate unethical
or illegal actions, the judge has an obligation to report Plaintiff to the Bar Association,
which would be quite the opposite of silencing petitioner.
The five statements:
1. “Who trains school attorneys? Attorneys who have helped schools avoid
revealing events in schools are in charge of training both new board members
and new school attorneys…Dan Shinoff trains board members and employees as
well as attorneys.”
2. “One of Daniel Shinoff’s specialties is planning legal tactics against parents
who complain that their kids aren’t getting the right education.”
3. “Shinoff should be ashamed of misusing the suffering of his wife’s relatives
to gain an advantage in the courtroom.”
4. “Stutz law firm itself used the courts to try to force a paid expert witness to
testify as the school district wished” [Vista Unified School District v. Dr. B. J.
Freeman, a case that was wisely dropped by the school district in its early stages].
5. “DEVANEY WAS THE NUMBER 2 OFFICIAL IN THE OFFICE OF CITY ATTORNEY
when the city made deals which the SEC and the FBI are now investigating.
Perhaps this one bit of information explains why Devaney is outraged at Aguirre’s
efforts to expose the facts about actions by public officials! The law firm of Stutz,
Artiano, Shinoff & Holtz, to which the SDCOE JPA steers the lion’s share of its
cases, is closely tied to right-wing Republicans such as Lesley Devaney. Devaney
joined the Stutz law firm after losing to Michael Aguirre in the race for San Diego
City Attorney. Devaney has recently admitted that if she had been elected, she
would HAVE HELPED city officials and employees, not the public, regarding the
secret 2002 pension underfunding deal. I think the city attorney should, in the
public interest, demand explanations from officials.”
As seen in the reporter’s transcript (Exhibit 43), the court threatened on October 30,
2009 to find petitioner in contempt of court. An Order to Show Cause why petitioner
should not be found in contempt is scheduled for March 5, 2010.
C. HARM TO PETITIONER AND THE PUBLIC
Damage will occur to petitioner and the public without an immediate stay on the Superior
Court proceedings and a determination of the constitutionality of the three permanent
injunctions created by the Superior Court. Petitioner is harmed by her loss of freedom
of speech. Also, the time lost by petitioner during months of work erasing all mention of
Plaintiff from her websites could never be regained and serves no purpose other than to
harm petitioner and the public. The inability to mention Plaintiff or any of its attorneys
would be extremely damaging to petitioner’s website, which focuses on public entities
and their lawyers. The public’s loss of its access to information during this time would
be a suspension of its constitutional rights and would be harmful to all who need this
information at this time. Even a temporary disappearance of information about Plaintiff
can cause the web address to fall in the ratings on Internet search engines, making it
unavailable to those seeking information about Plaintiff. Finally, threatened financial
damage and loss of freedom would be harmful to petitioner.
II. AUTHENTICITY OF EXHIBITS
The exhibits accompanying this petition are true and correct copies of original
documents filed with respondent court.
III. BENEFICIAL INTEREST OF PETITIONER
Petitioner has a clear, present and beneficial right to the performance of the judge’s
public duty and the execution of the laws in a matter concerning a private and public
right.
(Code Civ. Proc., § 1086; Green v. Obledo
(1981) 29 Cal.3d 126, 144; see also California Homeless & Housing
Coalition v. Anderson (1995) 31 Cal.App.4th 450, 457-458.)
IV. CAPACITIES OF RESPONDENT AND REAL PARTY IN INTEREST.
1. Petitioner Maura Larkins is a party in the Stutz Artiano Shinoff & Holtz APC v.
Maura Larkins defamation case that is now pending before San Diego Superior Court.
She has been ordered by the San Diego County Superior Court to show on March 5,
2010 why she should not be held in contempt of court and sanctioned, including five
days in jail, approximately $10,000 in fines, the striking of her answer and other
sanctions.
2. Respondent is the San Diego County Superior Court, which entered the
injunction orders challenged in this petition.
3. Real party in interest is Plaintiff Stutz, Artiano Shinoff & Holtz, APC, who prepared
the injunction orders for the judge to sign.
V. TIMELINESS OF THE PETITION AND STATEMENT OF APPEALABILITY
An injunction can be challenged at any time as long as it is in force. The injunction in
question is a permanent injunction. On January 20, 2010 I learned of December 11,
2009 signing of proposed order that was dramatically different from the minute order of
October 30, 2009. The December 11, 2009 order was signed about a month after the
proposed order was filed by Plaintiff STUTZ. Plaintiff did not serve it on Defendant until
January 20, 2009 when Defendant asked Plaintiff if the order had been signed.
This Petition presents no questions of fact for the Court to resolve in order to issue the
relief sought.
VI. GROUNDS FOR AN IMMEDIATE STAY
A stay is needed to stop proceedings on March 5, 2010 regarding Order to Show Cause
re contempt. A stay was requested from and denied by the trial court on February 18,
2010. Minute order denying stay February 18, 2010 exhibit 44; Petitioner’s pleading is
Exhibit 43. Plaintiff filed no opposition, although it was specifically asked by the court
on February 18, 2010, before the hearing, if it wished to submit a pleading.
Plaintiff was served with this Request for Stay before the filing of this petition.
Real party in interest will not be prejudiced by a stay.
VII. BASIS FOR RELIEF.
A. ABSENCE OF OTHER REMEDIES.
Petitioner has no adequate, legal remedy other than writ relief.
B. IRREPARABLE INJURY
Petitioner faces the loss of a successful website on which she has worked for over four
years, and hours of wasted effort, loss of right to speak freely on matters of pubic
interest, a constitutional right, and even faces large financial losses and jail time.
VIII. PUBLIC INTEREST
The issues presented here are of great public importance and should be resolved
promptly. It is in the public interest to resolve the questions presented in this petition.
IX. RELIEF REQUESTED
Petitioner seeks a writ of mandate/prohibition pursuant to CCP section 1085 enjoining
San Diego Superior Court from enforcing, taking any steps to enforce, or directing any
persons or entities to enforce its permanent injunctions issued on April 6, 2009, October
30, 2009 or December 11, 2009 or its order of September 18, 2009.
The following circumstances make it proper and necessary that a writ issue from this
Court. The trial court abused its discretion when it improperly instituted unconstitutional
permanent injunctions, refused to allow petitioner to obtain discovery, allowed Plaintiff to
abuse the discovery process, refused to allow petitioner to make objections, and
refused to clarify its sardonic and cryptic decisions as petitioner requested.
WHEREFORE, Petitioner prays that this Court:
1. Issue a stay of contempt proceedings while the Court of Appeal hears this
petition;
2. Issue a peremptory writ in the first instance directing the Superior
Court:
(1) to vacate its permanent injunctions of April 6, 2009 (Exhibit 1), October 30, 2009
(Exhibit 3) and December 11, 2009 (Exhibit 5);
(2) that any future injunctions of the Superior Court be limited to statements found to be
defamatory;
(3) that the Superior Court proceed with a jury trial to determine damages regarding the
defamation found by the judge in her summary judgment on February 20, 2009 (Exhibit
26 minute order and Exhibit 28, March 26, 2009 entered order);
(4) to reverse its order of September 18, 2009 (Exh. 2) which expanded the
interpretation of the April 6, 2009 injunction in a manner that makes it so vague that any
statement Plaintiff doesn’t like is forbidden by the injunction;
(5) to clarify and explain its decisions and to allow petitioner to make objections so that
decisions can be obeyed and appealed.
3. Grant such other and further relief as the Court may deem just and proper.
_________________________________
Maura Larkins
March 4, 2010
X. MEMORANDUM OF POINTS AND AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
A. FIRST AMENDMENT WRIT
It is false and preposterous to claim that Defendant voluntarily gave up her First
Amendment Rights (beyond the short list of words she agreed not to use) when she
signed an agreement on April 6, 2009 to abide by the limitations expressed in Exhibit 1.
It is also false and preposterous for the court to claim that the April 6, 2009 injunction
forbids petitioner’s statements that were described in Plaintiff’s October 30, 2009 Motion
to Strike Answer and Find Contempt (Exh. 30) to be in violation of injunction. The judge
did not write this finding down, but she explained it verbally (Exh. 43 transcript of
hearing). These are the five offending statements that caused Judge Hayes to order
petitioner never to mention Plaintiff or its attorneys:
“Who trains school attorneys? Attorneys who have helped schools avoid revealing
events in schools are in charge of training both new board members and new school
attorneys…Dan Shinoff trains board members and employees as well as attorneys.”
These are simple facts. This is what schools pay Dan Shinoff to do. Some events are
rightly concealed, but the public has a right to discuss the limits of secrecy in public
schools. Plaintiff and Judge Hayes know that this is not considered illegal or unethical
behavior, and petitioner does not claim that it is.
One of Daniel Shinoff’s specialties is planning legal tactics against parents who
complain that their kids aren’t getting the right education.” This is a simple fact.
This is what schools pay Dan Shinoff to do. Plaintiff and Judge Hayes know that this is
not considered illegal or unethical behavior, and petitioner does not claim it to be.
“Shinoff should be ashamed of misusing the suffering of his wife’s relatives to gain an
advantage in the courtroom.” This is an expression of petitioner’s distaste for
behavior she finds exploitative, but not illegal or unethical. If the judge finds otherwise,
the judge has an obligation to report Plaintiff to the Bar Association.
4. (a) “Attorney Dan Shinoff fools the US Office of Civil Rights
(b) “…In fact, Stutz law firm itself used the courts to try to force a paid expert witness to
testify as the school district wished.” (a) This statement was removed from petitioner’
s website.
(b)This is a factual description of the Vista Unified School District v. Dr. B. J. Freeman
case, in which Vista Unified School District sued a psychologist for refusing to testify that
a student did not need special education services. The school district dropped the
case, but the file is still a public record. Defendant did not accuse Plaintiff of unethical
or illegal behavior, but merely stated the facts of the case. If the judge finds that Plaintiff
attorneys behaved in an illegal or unethical manner in this case, which she apparently
has, she has a duty to report Plaintiff to the proper authorities, not create an injunction
to silence petitioner.
5. “DEVANEY WAS THE NUMBER 2 OFFICIAL IN THE OFFICE OF CITY ATTORNEY
when the city made deals which the SEC and the FBI are now investigating. Perhaps
this one bit of information explains why Devaney is outraged at Aguirre’s efforts to
expose the facts about actions by public officials! The law firm of Stutz, Artiano, Shinoff
& Holtz, to which the SDCOE JPA steers the lion’s share of its cases, is closely tied to
right-wing Republicans such as Lesley Devaney. Devaney joined the Stutz law firm after
losing to Michael Aguirre in the race for San Diego City Attorney. Devaney has recently
admitted that if she had been elected, she would HAVE HELPED city officials and
employees, not the public, regarding the secret 2002 pension underfunding deal. I think
the city attorney should, in the public interest, demand explanations from officials.”
This is protected political speech. Clearly, petitioner did not accuse Leslie Devaney of
unethical actions or legal violations. Petitioner simply disagreed with an article written
by Leslie Devaney, arguing that Devaney’s position was counter to the public interest.
This is a political discussion. Ironically, the California Bar Association agrees with Leslie
Devaney regarding an attorney’s obligation to represent an entity. So how did Judge
Hayes come to the conclusion that Devaney was being accused of unethical or illegal
behavior? Apparently the court that has determined that Devaney’s behavior was
unethical or illegal, and has determined that the injunction forbids petitioner from
discussing Devaney’s behavior when it is unethical or illegal, even if petitioner does not
characterize it as such. The fact is that Judge Judith Hayes’ rulings make no sense at
all.
The trial judge’s stated purpose is to prevent defendant from having to pay damages
(Exhibit 43, transcript of October 30, 2009 hearing on Motion to Strike.) Judge: “I’m
doing this so I won’t have to issue a default (referring to Exh. 38, the Motion to Strike
Answer due to Defendant’s “contempt”, the Motion that was denied. This was also what
the court said on April 6, 2009 when it engineered the first injunction. It is not the court’
s job to protect me from money damages, it’s the court’s job to uphold the law.
Petitioner has repeatedly requested a jury trial to determine the damages; the court has
no right to deny that to her.
II. PRIOR RESTRAINT IS THE MOST SERIOUS AND LEAST TOLERABLE
INFRINGEMENT ON FIRST AMENDMENT RIGHTS
The United States prior restraint is the “most serious and the least tolerable
infringement on First Amendment rights.” (Nebraska Press Ass’n v. Stuart (1976) 427 U.
S. p. 559.)
Balboa Island Village Inn, Inc. v. Lemen (2007)40 Cal.4th 1141 , 57 Cal.Rptr.3d 320;
156 P.3d 339 is probably the most applicable case in the instant situation. Clearly,
Judge Hayes is allowed to use prior restraint ONLY in regard to specific statements that
have been found to be defamatory. The court in Balboa Island Village states: “a
properly limited injunction prohibiting defendant from repeating to third persons
statements … that were determined at trial to be defamatory would not violate
defendant's right to free speech. [40 Cal.4th 1147]
“Like all gag orders, particularly permanent ones, the trial court’s order is presumptively
invalid,” states the court in Freedom Communications, Inc. v. Superior Court (Gonzalez)
(2008)167 Cal.App.4th 150, Cal.Rptr.3d. The court also states: “[W]e determine the
trial court’s order …is a prior restraint that plainly violates the press freedoms
guaranteed by the United States and California Constitutions. Because “petitioner[s’]
entitlement to the relief requested is so obvious that no purpose could be served by
plenary consideration of the issue,” we issue a peremptory writ of mandate in the first
instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)… A prior restraint is
the “most serious and the least tolerable infringement on First Amendment rights.” (Id.,
at p. 559.) Such an order is a “most extraordinary remedy” that may be used “only in
‘exceptional cases’ . . . where the evil that would result from the reportage is both great
and certain and cannot be militated by less intrusive measures.” (CBS, Inc. v. Davis
(1994) 510 U.S. 1315, 1317 (Blackmun, J., in chambers).) The United States Supreme
Court has offered two examples of the sort of “exceptional” situations in which a prior
restraint might be justified: to prevent the dissemination of information about troop
movements during wartime (Near v. State of Minnesota (1931) 283 U.S. 697, 716) or to
“suppress[] information that would set in motion a nuclear holocaust.” (New York Times
Company v. United States (1971) 403 U.S. 713, 726 (Brennan, J., concurring).) …The
same result obtains under the California Constitution, which “provides an even broader
guarantee of the right of free speech and the press than does the First Amendment.
[Citation.]” (Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144 -1145;
see Cal. Const., art. I, § 2, subd. (a).) Because we conclude the order preventing The
Register from reporting on trial testimony is unconstitutional under both the United
States and California Constitutions, it must immediately fall. “[E]very moment’s
continuance of [a prior restraint] amounts to a flagrant, indefensible, and continuing
violation of the First Amendment.” (New York Times v. United States, supra, 403 U.S. at
p. 715 (Black, J., concurring).)…Let a peremptory writ of mandate issue directing the
superior court to vacate its order prohibiting The Register from reporting on the trial
testimony of witnesses during the pendency of the trial.” New York Times Company v.
United States, 403 U.S. at p. 714 also forbids prior restraint.
C. STAY
Petitioner requested stay from the Superior Court re March 5, 2010 contempt
proceedings (Exh. 55), but Judge Hayes denied the request (Exh. 56).
In Blanche v Superior Court (1939) 35 CA2d 740, 741, 96 P2d the court issued a
prohibition to arrest proceedings to hold petitioner in contempt.
D. Prohibition can restrain continuing or incomplete judicial action
In City & County of San Francisco v Superior Court (1959) prohibition issued to restrain
the trial court from further proceedings after the court issued a temporary restraining
order that was in excess of its jurisdiction.
Prohibition can restrain continuing or incomplete judicial action.
E. PUBLIC INTEREST
Plaintiff’s actions are very much on the mind of voters, taxpayers and the media at the
present time (see Petition Exhibit 45, and the exhibits 4, 5, 6 attached), and citizens
have a right to the information on Defendant’s website. Petitioner has political
opinion and public documents on her site which are accessed by many visitors trying to
learn about schools, the law and the filing of legal documents.
Defendant’s website is a resource for the public as it attempts to access to the legal
system. The site provides the public with information about San Diego public schools
and public entities such as the San Diego County Office of Education—Joint Powers
Authority (“SDCOE—JPA”). The public not only elects the members of the boards of
these public entities and supplies all their funds, but depends on these institutions to
educate their children. The public therefore has an interest in making sure that these
entities not only obey the law but also use good judgment. There is no democracy when
public entities allow the public to know only what they want it to know.
Plaintiff attorney Daniel Shinoff is the premier attorney for SDCOE—JPA. It is impossible
to discuss the lawsuits and legal affairs of the SDCOE—JPA and its member schools
without referring to Daniel Shinoff and his partners and associates. Public has right to
know about cases on which it spends millions of dollars a year. In addition, Plaintiff does
legal work for many other southern California school districts and public entities and
their insurance brokers.
F. PUBLIC ENTITY
Public entities are not allowed to sue for defamation, but as Defendant has pointed out
again and again in her pleadings to the Superior Court, Plaintiff is working on behalf of
two public entities in this case, Chula Vista Elementary School District and San Diego
County Office of Education. Tax money has been paid to Plaintiff to work to protect
these two entities from discovery in this case, including a shocking request for
restraining order against Defendant in retaliation for trying to serve SDCOE-JPA director
Diane Crosier. Fortunately, a separate courtroom heard that request, and rejected it.
Defendant’s interest is in Plaintiff’s actions on behalf of public entities (and its private
actions on behalf of employees in positions of power in those entities).
IV. ABUSE OF DISCRETION: The April 6, 2009 permanent injunction is an illegal prior
restraint and court’s interpretations and expansions of the injunction are
unconstitutionally broad and vague
A big problem in this case is the court’s continued refusal, despite Defendants
continued requests, to explain its decisions. The court’s orders simply grant the motions
of Plaintiff, apparently in their entirety and without explanation, even though the wording
of the motions is often hopelessly vague and broad.
So far in this case, the court has found that the injunction means whatever Plaintiff
wants it to mean. The court has offered no explanations for its decisions, and placed no
limits on what statements Plaintiff may choose to have censored.
The court has yet to indicate that there is any limit at all to the reach of this injunction.
Defendant believes that the court order is based on an unconstitutionally broad and
vague interpretation of the injunction.
Plaintiff’s allegations assume that the court intended its ruling to exceed not just the
injunction, but the Constitutions of California and the United States. Plaintiff has turned
a defamation case into a free speech case by making demands that cannot be justified
by any reasonable interpretation of the injunction. Plaintiff claims that the court
intended to say that the following five tactics engaged in by Stutz are illegal, unethical,
incompetent or intimidating. Plaintiff further claims that Defendant knew that the
following actions are illegal, unethical, incompetent or intimidating, and asks on that
basis that the court find Defendant in contempt.
United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009) “…Today, after
review of our cases and relevant Supreme Court precedent, we re-state the “abuse of
discretion” standard of review of a trial court’s factual findings as an objective two-part
test. As discussed below, our newly stated “abuse of discretion” test requires us first to
consider whether the district court identified the correct legal standard for decision of
the issue before it. Second, the test then requires us to determine whether the district
court’s findings of fact, and its application of those findings of fact to the correct legal
standard, were illogical, implausible, or without support in inferences that may be drawn
from facts in the record…detailed formulations of the abuse of discretion standard tend
to incorporate multiple standards of review, each of which is applied to a discrete step in
a multiple-step analysis as to whether the trial court abused its discretion.
The original permanent injunction issued in the instant defamation case by San Diego
Superior Court on April 6, 2009 contained an unconstitutional prior restraint: that
petitioner not accuse Plaintiff of illegal or unethical…” actions. The court was legally
entitled only to issue an injunction against specific statements the judge had declared to
be defamatory in her summary judgment. However, petitioner was willing to obey the
injunction, feeling that simply stating the facts about Plaintiff’s actions without giving an
opinion about their ethical or legal characteristics was an acceptable limitation for her
website.
But on August 7, 2009, the judge interpreted the injunction in a manner that made it
unlimited in its applications, interpreting the injunction as infinitely broad and so vague
that it was impossible for petitioner to know if any statement at all could pass its test. As
it turned out, the judge made clear on October 30, 2009 that no statement could ever
pass the test of the April 6, 2009 injunction.
On August 7, 2009 Judge Judith Hayes went considerably farther into unconstitutional
territory when she interpreted her own injunction. It was not enough that defendant
ceased to accuse Plaintiff of having conducted itself improperly. On August 7, 2009
Judge Hayes decided that defendant was permanently barred from discussing any
conduct at all of the public entity law firm plaintiff, if plaintiff argued that the described
conduct would be illegal, etc. if plaintiff had indeed committed it. Defendant did not
characterize the conduct at issue as improper, but she did provide evidence to support
the facts she claimed. In some cases, the evidence included multiple stories in the
mainstream media. It is startling that a law firm would argue that its behavior was
improper, but it is even more startling that the judge would fail to report the admitted
unethical behavior to the California State Bar as she is legally required to do, and
instead order Defendant not to discuss it.
Judge Judith Hayes’ actions became even more unconstitutional on October 30, 2009
when she ordered defendant to remove all mention of Plaintiff from her website(s).
On December 11, 2009 Judge Hayes signed her most recent order, permanently
banning Defendant from mentioning the name of Plaintiff or any of its attorneys past,
present or future. The breadth of this prior restraint is mind-boggling in its
unconstitutionality, and calls out for reversal by the Court of Appeal.
In Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551 , 1 Cal.Rptr.3d
245 the Court held that newspaper was allowed to draw conclusions about plaintiffs.
“STIPULATED INJUNCTION” WAS BOTH UNCONSTITUTIONAL, AND OBTAINED
THROUGH FRAUD
The idea that on April 6, 2009 I signed away my right ever to mention the name of
Plaintiff on any website is preposterous. I can’t sign away my first amendment rights. I
signed an agreement not to say Plaintiff violated ethics or laws; it turns out that neither
the judge nor the Plaintiff intended that the agreement would be interpreted as
discussed on April 6, 2009.
Plaintiff and judge were apparently planning to interpret the April 6, 2009 agreement in
a way that petitioner could not have imagined
The April 6, 2009 injunction document was obtained through a bait-and-switch
operation, consisting of three parts:
1) get the defendant to sign an agreement that she will not accuse Plaintiff of
violations of laws or ethics;
2) (illegally) turn the agreement into an injunction;
3) Plaintiff and court preposterously interpret the “stipulated injunction” to mean
that defendant can not report on her website ANY action by Plaintiff if Plaintiff and the
court find that the action is a violation of law or ethics, even though defendant has made
no such accusation.
4) The judge tries to convince Defendant that she has signed away her First
Amendment rights; Defendant does not have the authority to give the judge permission
to violate the constitution.
5) The judge does not report the violations of law or ethics that she has found
Stutz, Artiano Shinoff & Holtz to be guilty of;
6) The judge threatens to strike Defendant’s answer and find her in Default if she
mentions the name of Plaintiff on any website.
This lawsuit has been hijacked and is being used as a vehicle to drive illegal censorship.
The court’s interpretation of the injunction is counter to the wording and original intent
of the injunction when it was prepared on April 6, 2009
Defendant and Plaintiff clearly understood on April 6, 2009, when they co-wrote the
Injunction, that the injunction forbade Defendant from stating that Plaintiff had engaged
in illegal, unethical, intimidating or incompetent behavior. The injunction did NOT say
that Defendant was forbidden to report Plaintiff’s actions, just that she could not
characterize those actions as illegal, unethical, intimidating or incompetent. In its
motions since that date, Plaintiff has created a new and unconstitutionally broad and
vague interpretation of the injunction.
The court granted Plaintiff’s August 7, 2009 motion without explanation. Defendant has
not been given an opportunity to argue against the decision since the court limited her
time to speak and refused to clarify its decision, and also failed to enter the order so as
to allow Defendant to file a Motion for Reconsideration.
The injunction clearly specifies and forbids a short list of statements that would be
defamatory if they were false. It refers to specific words (illegal, unethical, incompetent)
that would be defamatory per se if they were false, plus the word “intimidation”.
Synonyms of those words are also forbidden by the injunction (i.e. “criminal”), but
Defendant is free to report on Plaintiff’s actions as long as she does not claim that those
actions are illegal, unethical, intimidating or incompetent. Defendant agreed not to
make these statements even if they are true.
Defendant did not agree to censor, and the injunction does not require her to censor,
any speech outside this list of specific statements. On April 6, 2009 Defendant
discussed with Plaintiff’s lawyers James F. Holtz and Jeffrey Wade, Jr. this precise issue:
that Defendant would be free to report on Plaintiff’s actions, but would not be free to
describe them as illegal, unethical, incompetent or intimidating. Plaintiff agreed. The
idea that Defendant voluntarily gave up her First Amendment Rights beyond these
limited parameters is preposterous.
If at the time the agreement on the injunction was signed, April 6, 2009, Plaintiff
intended to interpret the agreement as it has done in its Reply to Defendant’s
Opposition to the instant motion, then Plaintiff obtained Defendant’s agreement through
deceit and fraud. This issue was thoroughly discussed by Plaintiff and Defendant. We
conferred for hours, We discussed in detail exactly what the agreement meant.
The Reply regarding the August 7, 2009 motion seems to have been written by
someone who had not been involved in this case previously; it claims an entirely new
interpretation of the injunction. Interestingly, the August 7, 2009 motion marks Stutz
attorney Leslie Devaney’s debut as an issue in this case. Defendant suspects that Ms.
Devaney wasn’t mentioned in previous pleadings by Plaintiff in order to make it possible
for the court to find that the Stutz lawyers at issue were private figures. This is bait and
switch, a classic fraudulent practice.
Defendant’s behavior has been consistent with the clear meaning of the injunction.
Defendant has continued to report on Stutz law firm, but have avoided any of the
defamatory-when-false statements clearly specified in the injunction.
The Reply states, “[The injunction]… applies to all statements that even accuse SASH
or its attorneys of certain conduct” (page 2, lines 19-20). This is incorrect and absurd.
The injunction refers to words Defendant may not use to describe Plaintiff’s conduct, not
her freedom to discuss Plaintiff’s conduct itself. Plaintiff is free to report Stutz law firm’s
conduct as long as she doesn’t characterize it as illegal, unethical, incompetent, or
intimidating.
Plaintiff’s Reply claims that the injunction sets up a system in which the court will
determine whether any reported action by plaintiff is unethical or illegal or incompetent
or an act of intimidation. It does not. In fact, the injunction prevents defendant from
using specific words (unethical, incompetent, intimidating, illegal, etc.) to describe
plaintiff. The injunction does not deny freedom of speech to defendant.
This wording of the injunction was not created by the court, but by the parties. Its intent
was clear. It should not be reinterpreted now. The injunction is about WORDS ONLY,
NOT ACTIONS. The court does not have the authority to restrict legal free speech, and
Defendant did not agree to do so.
Defendant has not been given an opportunity to argue against the decision since the
court limited her time to speak and refused to clarify its decision, and also failed to enter
the order so as to allow Defendant to file a Motion for Reconsideration.
CONCLUSION
This case cries out for interference from a higher court to preserve the integrity of the
Superior Court.
Dated: March 4, 2010
Respectfully submitted,
By:___________________
Maura Larkins, petitioner
XI. VERIFICATION
State of California County of San Diego
I, the undersigned, under penalty of perjury under the laws of the State of California,
say:
I am the petitioner in this action. All facts alleged in the above document are true of my
own personal knowledge. I have read the above Petition for Writ of Mandate/Prohibition
and know its contents. All facts alleged in the petition are true of my own personal
knowledge. All documents contained in the Appendix filed in conjunction with and in
support of this writ petition are true and correct copies of said documents filed in the trial
court. I declare under penalty of perjury that the foregoing is true and correct and that
this affidavit was executed on March 4, 2010 at El Cajon, California.
_________________________________________
Maura Larkins, petitioner
XII. CERTIFICATE OF WORD COUNT
The foregoing Petition contains 5,778 words (excluding tables and this Certificate). In
preparing this certificate, I relied on the word count generated by MS Word 2003.
Executed on March 4, 2010 at El Cajon, California.
____________________________
Maura Larkins, petitioner
Note: I discovered after I filed this that I was eligible to file a regular appeal in
this matter since all injunctions are immediately appealable. An appeal
regarding the December 11, 2009 injunction in Stutz Artiano Shinoff & Holtz' v.
Maura Larkins has been filed. The writ below is now interesting only in that it
is the template from which the appeal brief will be created.
--Maura Larkins
this matter since all injunctions are immediately appealable. An appeal
regarding the December 11, 2009 injunction in Stutz Artiano Shinoff & Holtz' v.
Maura Larkins has been filed. The writ below is now interesting only in that it
is the template from which the appeal brief will be created.
--Maura Larkins
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Depositions
Deposition of Ray Artiano
p 1-30
Deposition of Maura
Larkins
Notice of Dan Shinoff
Deposition
Dan Shinoff Public Figure
Deposition of Ray Artiano
p 1-30
Deposition of Maura
Larkins
Notice of Dan Shinoff
Deposition
Dan Shinoff Public Figure
Declarations
Dan Shinoff Declaration
Maura Larkins Declaration
Dan Shinoff Declaration
Maura Larkins Declaration
Subpoenas
Sheriff of Santa Barbara
Diane Crosier
Sheriff of Santa Barbara
Diane Crosier
Appeal 2-- 2010 Appeal
re Dec. 11, 2009
injunction--D057190 (won by
Maura Larkins)
re Dec. 11, 2009
injunction--D057190 (won by
Maura Larkins)
Appeal 3--not yet posted