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Appellant's Opening Brief for Appeal 4
Sept. 4, 2012 appeal--D062738--regarding April 6, 2009 injunction
Sept. 4, 2012 appeal--D062738--regarding April 6, 2009 injunction
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San Diego
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Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF & Court of Appeal No. D057190
HOLTZ, APC.,
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2007-00076218- CU-DF-CTL)
MAURA LARKINS,
Defendant and Appellant.
______________________________
Appeal From an Injunction Order
Of The Superior Court, County of San Diego
Hon. Judith Hayes, Judge
____________________________________
APPELLANT’S OPENING BRIEF
____________________________________
MAURA LARKINS
Appellant
Self-Represented
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF THE CASE 1
STATEMENT OF APPEALABILITY 14
STATEMENT OF FACTS 15
ARGUMENT 13
The April 6, 2009 injunction is unconstitutional on its face
A. The Standard of Review 26
B. Argument 27
CONCLUSION 43
CERTIFICATE OF COMPLIANCE 45
TABLE OF AUTHORITIES
CASES
Balboa Island Village Inn, Inc. v. Lemen (2007)
40 Cal.4th 1141 , 57 Cal.Rptr.3d 320; 156 P.3d 339………………….
Blanche v Superior Court (1939)
35 CA2d 740, 741, 96 P2d ……………………………………………
Chico Feminist Women’s Health Center v. Scully (1989)
208 Cal. App. 3d 230, 251, 256 Cal Rptr. 194
Colt v. Freedom Communications, Inc. (2003)
109 Cal.App.4th 1551, 1 Cal.Rptr.3d 245…………………………..…
Del Junco v. Hufnagel (2007)
Ca. 2nd, 60 Cal.Rptr.3d 22
Evans v. Evans (2008)
162 Cal. App. 4th 1157, 1166, 76 Cal. Rptr. 3d 859
Freedom Communications, Inc. v. Superior Court (Gonzalez) (2008)
167 Cal.App.4th 150, Cal.Rptr.3d ……………………………………
Nebraska Press Ass’n v. Stuart (1976) 427 U.S. p. 559…………..…………..
New York Times Company v. United States,
403 U.S. at p. 714………………………………………….……………
Pro-Family Advocates v. Gomez (1996)
46 Cal. App. 1674, 1678 n.1, 54 Cal. Rptr. 2d 600
Western Electroplating Co. v. Henness (1959)
172 Cal. App. 2d 278, 283, 341 P.2d 718
United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009)
STATUTES
CONSTITUTIONAL PROVISIONS
Cal. Const. Article 1, Section 2
U.S. Const., First Amendment
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF & Court of Appeal No. D057190
HOLTZ, APC.,
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2007-00076218- CU-DF-CTL)
MAURA LARKINS,
Defendant and Appellant.
______________________________
Appeal From an Injunction Order
Of The Superior Court, County of San Diego
Hon. Judith Hayes, Judge
____________________________________
APPELLANT’S OPENING BRIEF
____________________________________
MAURA LARKINS
Appellant
Self-Represented
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF THE CASE 1
STATEMENT OF APPEALABILITY 14
STATEMENT OF FACTS 15
ARGUMENT 13
The April 6, 2009 injunction is unconstitutional on its face
A. The Standard of Review 26
B. Argument 27
CONCLUSION 43
CERTIFICATE OF COMPLIANCE 45
TABLE OF AUTHORITIES
CASES
Balboa Island Village Inn, Inc. v. Lemen (2007)
40 Cal.4th 1141 , 57 Cal.Rptr.3d 320; 156 P.3d 339………………….
Blanche v Superior Court (1939)
35 CA2d 740, 741, 96 P2d ……………………………………………
Chico Feminist Women’s Health Center v. Scully (1989)
208 Cal. App. 3d 230, 251, 256 Cal Rptr. 194
Colt v. Freedom Communications, Inc. (2003)
109 Cal.App.4th 1551, 1 Cal.Rptr.3d 245…………………………..…
Del Junco v. Hufnagel (2007)
Ca. 2nd, 60 Cal.Rptr.3d 22
Evans v. Evans (2008)
162 Cal. App. 4th 1157, 1166, 76 Cal. Rptr. 3d 859
Freedom Communications, Inc. v. Superior Court (Gonzalez) (2008)
167 Cal.App.4th 150, Cal.Rptr.3d ……………………………………
Nebraska Press Ass’n v. Stuart (1976) 427 U.S. p. 559…………..…………..
New York Times Company v. United States,
403 U.S. at p. 714………………………………………….……………
Pro-Family Advocates v. Gomez (1996)
46 Cal. App. 1674, 1678 n.1, 54 Cal. Rptr. 2d 600
Western Electroplating Co. v. Henness (1959)
172 Cal. App. 2d 278, 283, 341 P.2d 718
United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009)
STATUTES
CONSTITUTIONAL PROVISIONS
Cal. Const. Article 1, Section 2
U.S. Const., First Amendment
STATEMENT OF THE CASE
PROCEDURAL HISTORY
STUTZ ARTIANO SHINOFF & HOLTZ, APC (“SASH”) filed a complaint for defamation
on October 5, 2007 against MAURA LARKINS based on statements she published on
her website, mauralarkins.com, regarding Plaintiff’s law firm’s actions on behalf of local
public schools (I AA 1). Defendant filed an answer on November 16, 2007 (I AA 10)
(exhibit 2). Defendant filed a Motion to Compel Depositions of Plaintiff’s official
representative Ray Artiano, and Plaintiff attorney Daniel Shinoff and production of
documents (I AA 26-51) (exhibits 3-4). The motion was denied (I AA 63).
Plaintiff filed a First Amended Complaint on July 29, 2008 (I AA 64) (exhibit 8).
Defendant filed an Answer on September 29, 2008 (I AA 75).
Defendant filed a second Motion to Compel Deposition of Daniel Shinoff and
Production of documents on January 15, 2009 (I AA 93). The hearing was scheduled
for February 6, 2009, but the decision was delayed by the court until February 20,
2009, which was the date of the Summary Judgment hearing. This Second Motion to
Compel Depositions was denied (I AA 154).
A Motion for Summary Adjudication was filed by Plaintiff on October 24, 2008 (I AA
155). Plaintiff’s request (II AA 290) to throw out the Declaration of Defendant (II AA
269), who had sat for a full six-hour deposition (II AA 299) and produced hundreds of
highly pertinent documents, was granted by the court (II AA 401). The court preferred
to rely on the declarations of Plaintiff partners Ray Artiano (II AA 258b-d) and Daniel
Shinoff (II AA 259), who had either walked out of or never shown up for their
depositions and had claimed that their paralegal couldn’t find Bate-stamped
documents collected by Mr. Shinoff. Defendant’s Opposition was thrown out because
she had used the format that had been replaced on Jan. 1, 2008.
Summary Adjudication was granted to Plaintiff on February 20, 2009 (II AA 401).
A jury trial to determine damages was set for April 6, 2009, however, the trial was
delayed in order see if the settlement reached on that day would satisfy both parties.
The settlement, a stipulated injunction, required Defendant not to publish “statements
with regard to Plaintiff and its lawyers accusing illegal conduct or violations of law,
unethical conduct, lack of professional competence or intimidation” (II AA 467) (exhibit
33).
Plaintiff thereafter filed a Motion to Enforce Injunction, claiming that Defendant had not
gone far enough in censoring her website (exhibit 34) (III AA 480).
On August 7, 2009 the court ruled that Defendant had violated the injunction, but did
not indicate whether one, some or all of the five statements at issue were defamatory
(exhibit 37) (III AA 655a-c). Defendant removed some of the statements from her
website, but kept statements that did not express the opinion that Plaintiff had behaved
illegally or unethically or incompetently or practiced intimidation.
Plaintiff then filed a Motion to Strike Answer and Enter Default (exhibit 38) (III AA 656-
666), specifying five statements on Defendant’s website (page 658). Defendant
removed one of the statements from her website, but kept statements that did not
express the opinion that Plaintiff had behaved illegally or unethically or incompetently
or practiced intimidation.
On October 30, 2009 the trial court denied Plaintiff’s Motion to Strike Answer, and did
not specify any statement that it found to be a violation the injunction (exhibit 44) (IV
AA 748). However, the judge implied in her remarks at the hearing on October 30,
2009 that the five statements did violate the injunction (2 RT 109-115). The trial court
then ordered Defendant to remove every mention of Plaintiff or any of its attorneys
from her website. Plaintiff prepared the injunction order signed on December 11, 2009
modifying the April 6, 2009 stipulated injunction (exhibit 46) (IV AA 785). This
modified order was later overturned by the Court of Appeal (V AA 1021) (exhibit 60).
On January 21, 2010 (IV AA 789) Plaintiff filed an ex parte application requesting that
the court find Defendant in contempt of court. In response, the court scheduled a
Motion to Show Cause regarding contempt, and Defendant was found in contempt of
court on March 10, 2010 and sanctioned $3000 (V AA 1017) (exhibit 57). Defendant
paid $3000 to Plaintiff.
Defendant successfully appeals Dec. 11, 2009 injunction
Defendant appealed the December 11, 2009 injunction on March 18, 2010.
Paragraph four of the injunction was overturned by the Court of Appeal on August 5,
2011 (V AA 1021) (exhibit 60).
The Three Motions
1. Motion to Strike Answer
2. Motion to Modify or Dissolve Injunction (at issue in this appeal)
3. Motion for Jury Trial regarding damages OR to set aside Summary Adjudication
and have jury trial on all issues (has never been resolved)
Motion to Strike Answer
Plaintiff filed its 2nd Motion to Strike Defendant’s Answer, scheduled to be heard on
June 27, 2011, but Plaintiff took it off calendar without explanation (X AA 2118).
Plaintiff’s 3rd MOTION TO STRIKE ANSWER (VI AA 1190-1252) (exhibits 70a through
72) was originally scheduled for Feb. 3, 2012; then moved to March 2, 2012, then was
heard on March 9, 2012, when it was taken under submission; was used to justify
$5000 sanctions on May 30, 2012, but not decided; and finally decided on July 27,
2012 in a decision that did not include a single specific statement that violated the April
6, 2009 injunction (IX AA 2033-2052) (exhibits 96, 97). Defendant’s Opposition was
filed Jan. 23, 2012 (VI AA 1253-1283 ) (exhibits 73-75) and Plaintiff replied (VI AA
1284-1390) (exhibits 76-77).
Shockingly, Plaintiff’s Reply contained a false “flow chart” (VI AA 1302) that Plaintiff
attorney James Holtz claimed under penalty of perjury was accurate (VI AA 1294). On
the contrary, the flow chart can readily be seen to contradict Plaintiff’s own exhibit on
page 1299 and was apparently created to give the impression that the statements that
Plaintiff complains about pop right up at the top of Google results, rather than, as they
actually are, buried deep inside the archives of the blog.
Plaintiff’s 3rd Motion to Strike Answer was heard on March 9, 2012, at which time it was
taken under submission (continued below).
MOTION TO MODIFY OR DISSOLVE INJUNCTION
Defendant’s MOTION TO MODIFY OR DISSOLVE INJUNCTION that is the subject of
this appeal was originally scheduled to be heard on March 2, 2012 (V AA 1045)
(Exhibit 62). The Exhibits for this Motion are in Appellant’s Appendix volume X (X AA
2117-2348) (Exhibit 103). Plaintiff opposed the Motion (V AA 1080) and Defendant
filed a Reply (V AA 1131) (Exhibit 65). It was heard on March 9, 2012, and taken
under submission.
Motion for Jury Trial
Defendant’s Motion for Jury Trial, to set aside Summary Adjudication decision and
grant jury trial on all issues, or, alternatively, to grant jury trial regarding damages, was
originally scheduled to be heard on March 2, 2012 (VI AA 1141) (Exhibit 66, 67). The
Exhibits are the same as those for the MOTION TO MODIFY OR DISSOLVE
INJUNCTION, and can be found in Appellant’s Appendix volume X (X AA 2117-2348)
(Exhibit 103). Plaintiff Opposed and Defendant Replied (VI AA 1176-1189) (Exhibits
68, 69). It was heard on March 9, 2012, and taken under submission.
The March 9, 2012 hearing on three motions (vol. 3 RT 135-146)
The March 9, 2012 hearing on three motions (Motion to Dissolve Injunction, Motion for
Jury Trial, Motion to Strike Defendant’s Answer) was remarkable because the court
WITHDREW its tentative ruling that 1) denied Defendant’s Motion to Modify or Dissolve
Injunction; 2) denied Defendant’s Motion to set aside SA and grant jury trial; and 3)
ordered $5000 sanctions.
The judge did a complete turnabout BEFORE the hearing began, passing out a
schedule for a trial to be held on September 7, 2012, even re-opening discovery!
In fact, no new discovery was ever allowed. The day after Defendant contacted the
Sheriff of Santa Barbara to discuss a subpoena for documents that Commander Sam
Gross had prepared for Defendant, the court did a sua sponte stay of discovery on
May 30, 2012.
Inexplicably, the judge failed, even when asked, to clarify whether the trial would
determine damages pursuant to summary adjudication or would be a trial on all
issues. The judge merely said, “Let me take a look at that” when answer Plaintiff
asked (vol. 3 RT 143, line 24 to 144, line 4) what the court planned to do with Plaintiff’
s recently submitted proposed AMENDED order eliminating the finding of malice in the
court’s Feb. 20, 2009 decision on summary adjudication (IX AA 2057-2116) (exhibits
100-102).
Perhaps unsurprisingly, the Sept. 7, 2012 trial never occurred.
Court allowed more pleadings in March 2012 on Motion to Strike
The court did not rule on any motions on March 9, 2012, but did issue a minute order
on March 12, 2012 (VII AA 1412) (exhibit 82) allowing Defendant to file 6-page
Response (VII AA 1414-1459 ) (exhibits 83-85) regarding new allegations in Plaintiff’s
Reply that had not been mentioned in Plaintiff’s Motion to Strike Answer. Defendant
filed this response on March 21, 2012, attaching an exhibit (VII AA 1443-1444) printed
out on March 20, 2012 that proves that the third-party comments Plaintiff complained
about had been deleted.
Plaintiff filed a SURREPLY regarding its 3RD MOTION TO STRIKE (VII AA 1460).
May 30, 2012 decision on ONE of the three motions—the Motion to Modify or Dissolve
Injunction (vol. 3 RT 147-153)
On May 30, 2012 the court issued a minute order, the order underlying this appeal (VII
AA 1466) (exhibit 87), denying Defendant’s Motion to Modify or Dissolve Injunction,
and ordered her to pay $5000 contempt sanction based on allegations in Plaintiff’s
Motion to Strike. The contempt sanction was based on the court’s March 10, 2010
OSC decision justified by the Dec. 11, 2009 order that had been found
unconstitutional, NOT on any notice or pleading made during the 26 months after
March 10, 2010. Furthermore, Plaintiff’s pleadings for March 10, 2010 had ONLY
discussed whether Defendant had MENTIONED Plaintiff on her website, not whether
there was any violation of the April 6, 2009 injunction (II AA 467)..
The court falsely claimed in its May 30, 2012 order that several specific statements
were on Defendant’s website. The court quoted public court records on Defendant’s
website as containing statements that violated the injunction, and third-party comments
on Defendant’s blog that allegedly violated the injunction. The court has consistently
refused to clarify the injunction regarding whether it covers third-party comments and
public records.
The court tacitly admitted that its May 30, 2012 findings were false or improper when it
left out ALL the May 30, 2012 quotes from its July 27, 2012 decision to Strike
Defendant’s Answer, and did not provide a single new quote from Defendant’s
websites. This also seems to be an admission by the Court that the $5000 sanction
was unjustified.
Court allowed even more pleadings re Motion to Strike to be filed in July 2012
In its May 30, 2012 decision the court asked Plaintiff to write an 8-page pleading about
Defendant’s website (VIII AA 1618) (exhibit 95a) and allowed Defendant to file an 8-
page response (VIII AA 1704-2008) (95b and 95c).
Motion for Reconsideration of May 30, 2012 decision denying modification or
dissolution of injunction
Defendant filed a Motion for Reconsideration of the May 30, 2012 decision on June 8,
2012 (VII AA 1470) (exhibit 88). Plaintiff filed a one-paragraph response (VII AA 1570)
(exhibit 94a). The Motion was denied on August 24, 2012.
Defendant repeatedly asked the judge to clarify the meaning of the injunction
During the June 21, 2012 ex parte hearing regarding Defendant’s Request for Stay
and request for clarification of injunction (VII AA 1490) (exhibit 89), the judge refused
to answer Defendant’s requests to clarify the meaning of the injunction, as can be
seen in the REPORTER’S TRANSCRIPT (vol. 3 RT 147-153).
Defendant scheduled an ex-parte hearing on June 27, 2012 (VII AA 1513). Defendant’
s ex parte application requested a stay of sanctions, and included law and case law
references, and requested clarification of court’s interpretation of injunction. When
Defendant got to the court that day, she was told that there would be no hearing—
ever—on her ex-parte application.
Defendant then made a list of specific questions regarding the meaning of the
injunction and scheduled another ex-parte hearing on July 17, 2012 (VII AA 1531).
Defendant asked the court to specify which statements the court found on Aug. 7,
2009, Oct. 30, 2009; and Dec. 11, 2009 to be violations of the April 6, 2009 injunction.
The court continued (VII AA 1529) the hearing until July 27, 2012.
July 27, 2012 decision Striking Defendant’s Answer
Once again, the court did a remarkable turnaround between the time it produced a
tentative ruling on July 26, 2012 (see next paragraph regarding absence of this
document from the Appellant’s Appendix) and the time it produced the actual minute
order for July 27, 2012 (IX AA 2033) (exhibit 96). The tentative ruling claimed that
statements were “currently” on Defendant’s sites, when the court had known for
several months that the statements (actually, public records and third-party comments)
had been erased.
(Appellant apologizes, but she has misplaced the July 26, 2012 tentative ruling, and so
it does not appear in the Appendix. But Appellant hopes to find it before this appeal is
decided. Appellant has filed a new Motion, requesting the trial court to Set Aside
Default and Dissolve Injunction, in which Appellant argues that before the trial court
can strike Appellant’s Answer, the court must set aside its Summary Adjudication
decision as well as the April 6, 2009 settlement/stipulated injunction that was the direct
result of the SA decision. If the trial court grants the new motion, then the instant
appeal will be moot. If the court denies the motion, Appellant will appeal it and request
that it be joined to the instant appeal. By that time, Appellant will most likely have
found the July 26, 2012 tentative ruling.)
During the July 27, 2012 hearing, (vol. 3 RT 154-171) Defendant tried once again to
understand the court’s interpretation of the April 6, 2009 injunction:
Ms. Larkins: Did the court find that Plaintiff behaved unethically or illegally in the Dr. B.
J. Freeman case? Is this the reason that I’m not allowed to publish information about
this case? (vol. 3 RT 163 lines 2-5).
Ms. Larkins: …I believe that is from a document that I never published until Plaintiff
added it to Daniel Shinoff’s declaration. It’s a court document that was put into the
court record by Plaintiff. I need to know if I am not allowed to publish public court
records (vol. 3 RT 164 lines 20-24).
Ms. Larkins: And I would like your honor to tell me if it is okay to say Julie Hatoff sued
for extortion, because that’s what the website says now (3 RT 165, 26-28 to 166 1).
The court found on July 27, 2012 that on April 6, 2009 Defendant understood the
agreement:
The Court: Ms. Larkins, you said on the day you entered into it that you understood
that, and you did. I make that finding (3 RT 168, 7-9).
But on April 6, 2009 and every day thereafter, the court has carefully avoided asking
Defendant or Plaintiff what had been agreed upon, or explaining to Defendant what the
court believed the injunction to mean.
Defendant did not realize that Plaintiff had deceived her, methodically and
intentionally, on April 6, 2009. Plaintiff agreed on April 6, 2009 that Defendant would
be free to publish facts, but not be free to publish any opinion that Plaintiff behaved
illegally, unethically, intimidatingly or incompetently. Defendant described her
discussion with James Holtz in a declaration, and Plaintiff has never denied the fact
that he agreed with her statement of what the injunction meant .
Never in her wildest dreams did Defendant imagine that Plaintiff and the court would
interpret the injunction to mean that Defendant could not report facts if the behavior
being reported actually was unethical, illegal, incompetent or intimidating. And never
did she dream that innocuous statements like “Daniel Shinoff trains school attorneys”
would be found by Plaintiff and the court to be accusations of unethical behavior. Nor
did Defendant imagine that Plaintiff would claim that the factual statement, “Leslie
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.” This is a simple statement
about the history of our city. It offers no opinion. It was written in response to Leslie
Devaney’s published article, “The Collateral Damage of Aguirre’s Furies,” (exhibit 93)
in which Ms. Devaney did indeed express the opinion that her target was unethical.
Leslie Devaney ran for city attorney of San Diego, but the trial court in the instant case
found that she is not a public figure, or even a limited-purpose public figure. The court
has thus transgressed the First Amendment most grievously in using the injunction to
silence political reporting that does not even express an opinion.
The Court [July 27, 2012]: “You have accused the Shinoff Firm of—of so many
unethical actions that I won’t try to list them all here other that the fact that when you
say that the court has never told you what these violations are, in our rulings
previously we have specifically outlined exactly what statements violated the injunction”
(3 RT 168, 17-21).
In fact, the court listed specific statements in ONLY ONE ruling, that of May 30, 2012.
The court included these same statements in its tentative ruling for July 27, 2012.
Minutes after the court made the declaration above, it erased ALL THE SPECIFIC
STATEMENTS from the tentative ruling and filed and extremely brief minute order for
July 27, 2012 (IX AA 2033). The court knew that its tentative ruling contained false
findings and wisely erased the false findings. Since the court has tacitly retracted its
list of specific statements listed in the May 30, 2012, Appellant has no clear indication
of even A SINGLE STATEMENT THAT VIOLATED THE INJUNCTION, despite the
posturing on July 27, 2012. Appellant has never been given proper notice of the
injunction.
In its minute order, the court declared that Defendant’s ex parte questions about the
PERMANENT injunction were moot! Perhaps the court is right about this, since it is
implying that the injunction itself must be thrown out, as well as the summary
adjudication, in order to Strike Defendant’s Answer. The court needs to put its
intention clearly on the record. Either we have a summary adjudication and resultant
settlement/injunction, or we have a stricken answer and default. We can’t have all the
above.
The court made no mention of Defendant’s Motion for Jury Trial it its July 27, 2012
minute order, nor did Plaintiff mention it in the order it prepared (IX AA 2034) (exhibit
97). Appellant objected to the Proposed Order Striking Answer (IX AA 2041).
Plaintiff filed a statement of damages (IX AA 2053) (exhibit 98) and requested default
(IX AA 2056) (exhibit 99). Default was entered. Final judgment has not occurred.
Appellant filed Notice of Appeal on September 4, 2012 (X AA 2367)(exhibit 105).
Appellant’s Notice Designating Record on Appeal was also filed on September 4, 2012
(X AA 2369) (exhibit 106).
STATEMENT OF APPEALABILITY
This appeal is from an order denying Defendant’s Motion to Modify or Dissolve
Injunction of the San Diego County Superior Court and is authorized by the Code of
Civil Procedure section 904.1(a)(6). The intent of CCP section 904.1 (a)(6) is that all
orders granting, changing, or refusing to change injunctions, whether temporary,
permanent or provisional, are appealable [Western Electroplating Co. v. Henness
(1959) 172 Cal. App. 2d 278, 283, 341 P.2d 718]. In particular, orders modifying
injunctions are appealable [Pro-Family Advocates v. Gomez (a996) 46 Cal. App. 1674,
1678 n.1, 54 Cal. Rptr. 2d 600; see also Chico Feminist Women’s Health Center v.
Scully (1989) 208 Cal. App. 3d 230, 251, 256 Cal Rptr. 194].
STATEMENT OF FACTS
The trial court’s abusive actions in obtaining and interpreting and enforcing the
injunction at issue in this appeal is at issue. The court abused its discretion,
exceeding the bounds of reason, on many, many occasions in this case.
I. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant to summary
adjudication. The wording was agreed upon by Plaintiff and Appellant and intended as
a settlement. The April 6, 2009 order states in pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF &
HOLTZ, APC’s Motion for Summary Adjudication came on regularly for hearing before
the Honorable Judith F. Hayes in Department 68 of the above-entitled court. After
having considered the moving papers and evidence therein, and all other records,
pleadings and files contained herein, the court ordered that Plaintiff’s Motion for
Summary Adjudication was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY ORDERED as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is entitled to the relief
demanded. Defendant (sic) is entitled to an injunction enjoining and restraining
Defendant from continuing to publish or republishing by any method or media,
including but not limited to all electronic data, websites and web pages, the defamatory
statements alleged in Plaintiff’s First Amended Complaint pertaining to Plaintiff and any
of its lawyers past or present, and future publication of statements with regard to
Plaintiff and its lawyers accusing illegal conduct or violation of law, unethical conduct,
lack of professional competence or intimidation…” (exhibit 33) (II AA 467)
II. Discovery
Plaintiff’s official representative, Ray Artiano, walked out of his deposition on
November 8, 2007 (I AA 117) after two hours. Plaintiff’s attorney Daniel Shinoff, the
member of Plaintiff’s law firm who was most prominently featured on Defendant’s
website, announced at that time that he would not show up for his noticed deposition
two hours later. He had not filed an objection beforehand, but promised to file a
Motion for Protective Order. He failed to do so. Mr. Artiano also failed to bring to his
Nov. 8, 2008 deposition specific Bate-stamped pages that had been subpoenaed.
The pages were missing from a set of Bate-stamped documents related to statements
on Defendant’s website that had been collected by Mr. Shinoff in 2001 at the school
where Defendant was teaching. Plaintiff claimed that its paralegal could not find the
documents. Defendant filed a Motion to Compel Depositions and Production of
Documents (I AA 26). The motion was denied on April 29, 2008 (I AA 63). This
decision was an abuse of discretion in regard to the deposition of Daniel Shinoff since
no separate statement should have been required to compel a deposition that had
never begun. On January 15, 2009 Defendant filed a second Motion to Compel the
Deposition of Daniel Shinoff. The hearing, scheduled for February 6, 2009, was
delayed by the court until February 20, 2009, which was the date of the Summary
Adjudication hearing, at which time Motion #2 to Compel Deposition was denied (II AA
401), relying on Plaintiff’s false and unsupported claim that Mr. Shinoff’s deposition
had begun.
III. Summary adjudication decision and April 6, 2009
injunction
The court’s decision (II AA 401) to throw out Defendant’s declaration (I AA 269) was an
abuse of discretion. It was also a violation of equal protection of the law since the
judge relied on the declarations of Ray Artiano (I AA 258b-d) and Daniel Shinoff (I AA
259; I AA 230-242) in making her decision. A reasonable person would have doubts
about the reliability of Mr. Shinoff, who had placed documents in a place where a
paralegal couldn’t find them and had refused to be deposed, and Mr. Artiano, who had
walked out of his deposition. A reasonable person would have
placed more reliance on the declaration under oath of
someone who had, as Appellant did, sat for a full six-
hour deposition and produced hundreds of documents.
Inexplicably, the trial court judge in her summary judgment
decision failed to acknowledge her personal familiarity with
the truth of the statement "Daniel Shinoff keeps documents
locked up in his files" (I AA 264) (exhibit 18, "fact" number
10).
The trial court had, in fact, given Mr. Shinoff permission to
keep his documents in files that were so secure that even the
paralegal of the firm couldn’t find them.
[See box at right. > > >]
In an obvious abuse of discretion, the judge found the statement to be defamatory
when she knew it to be true, and knew that Plaintiff had not submitted, and could not
submit, even a scrap of evidence to prove otherwise.
Defendant removed all the statements mentioned in the Motion for
Summary Judgment from her website.
In a demonstration of how desperate Plaintiff is that the truth not be revealed, and how
willing Plaintiff is to use tactics beyond those sanctioned by the law, four days after the
summary judgment decision, Plaintiff filed a request for a restraining order against
Defendant (II AA 454b) on the basis that Defendant had weeks earlier tried to serve a
deposition subpoena on an executive at San Diego County Office of Education.
Plaintiff’s request was summarily denied by a judge other than Judge Judith Hayes (II
AA 454a).
D. Motion to Enforce Injunction August 2007
Plaintiff thereafter filed a Motion to Enforce Injunction, claiming that Defendant had not
gone far enough in censoring her website (exhibit 34) (II AA 480). Plaintiff complained
that Defendant’s description of the firm as “aggressive” was a violation of the April 6,
2009 injunction, even though the injunction concerned only accusations of illegal,
unethical, intimidating or incompetent behavior.
On August 7, 2009 the court ruled that Defendant had violated the injunction, but did
not indicate whether one, some or all of the statements at issue were defamatory
(exhibit 37) (III AA 655a-c). Defendant removed some of the statements from her
website, but kept other statements that did not accuse Plaintiff of illegal, unethical,
intimidating or incompetent behavior.
Then the court interpreted the stipulated injunction to mean that defendant could not
report any facts about Plaintiff, even facts reported by Plaintiff to reporters and
published in local newspapers, if the court found that those facts described actions
which the court found to be illegal or unethical.
Plaintiff then filed a Motion to Strike Answer and Enter Default (exhibit 38) (II AA 656),
specifying five statements on Defendant’s website (exhibit 38) (II AA page 658).
Defendant removed one of the statements from her website, but kept the other
statements on her website. These four statements constitute the entire reason for the
existence of the injunction at issue in this appeal. (See section B above for the four
statements.)
Plaintiff discussed a fifth statement in its motion, but that statement had been removed
from her website by Defendant. The fifth statement was, “Attorney Dan Shinoff fools
the US Office of Civil Rights…In fact, 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].”
Defendant has gone beyond the minimum to obey the stipulated injunction, removing
the statement because it contained the words “fooled the Office of Civil Rights” and
“used the court to try to force a paid expert witness to testify as the school district
wished.” It is a simple fact that Stutz law firm filed a lawsuit against a psychologist
because she refused to testify in support of Vista Unified School District’s
determination that a specific child was ineligible for special education, but Defendant is
willing to go out of her way not to publish her own opinions about the legality and
ethics of Plaintiff’s actions.
Unconstitutional hoax
Defendant does, however, realize now that the stipulated injunction amounted to a
blatant subterfuge by Plaintiff and Judge Hayes, and is unconstitutionally broad, as
proven by the infinite vastness of statements that it prohibits in the interpretation of the
Superior Court, and unconstitutionally vague, as proven by the fact that it has been
interpreted by the Superior Court to mean something completely different from what
Defendant understood when she agreed to it.
IV. On October 30, 2010 the court issued a minute order (exhibit 44) (III AA 748)
stating:
“The Court amends the injunction to reflect that Defendant is ordered to remove from
her website(s) any and all reference to Plaintiff or any of it’s (sic) former or current
employees within 20 days.”
This order was overturned by the Court of Appeal on August 5, 2010, but it helps to
prove the pattern of exceptional abuse of discretion in this case.
The Superior Court’s October 30, 2009 minute order on the Motion to Strike Answer
(exhibit 44) (III AA 748) failed to address whether the court found that one, some or all
of the four statements violated the injunction, but implied in her remarks at the hearing
on October 30, 2009 that at least some of the statements did violate the injunction (RT
98-103). How could these statements violate the injunction? The court’s cryptic
decisions since August 7, 2009 allow only one conclusion: the court interpreted the
stipulated injunction to mean that defendant could not report any facts about Plaintiff,
even facts reported by Plaintiff to reporters and published in local newspapers, if the
court found that those facts described actions which the court found to be illegal or
unethical.
Judge Hayes appears to have agreed with statements in Plaintiff’s motion in which
Plaintiff argued that certain statements by Defendant to be violations of the stipulated
injunction on the basis that the actions described constituted illegal or unethical
behavior. In these statements, Defendant did not accuse Plaintiff of illegal or unethical
behavior, and in fact does not believe that the actions constitute illegal or unethical
behavior. For example, the statement “One of Daniel Shinoff’s specialties is planning
legal tactics against parents who complain that their kids aren’t getting the right
education” is a simple statement of fact. It describes the job that Mr. Shinoff is paid to
do. It is neither illegal nor unethical for Mr. Shinoff to do this job. It is an abuse of
discretion for the court to call such statements a violation of the stipulated injunction.
In order to violate the injunction, Defendant would have to say that Mr. Shinoff’s
actions were illegal or unethical. In this case, it is Plaintiff and the court who are saying
that Plaintiff’s actions were illegal or unethical. The whole lawsuit seems to be thrown
into question when we have Plaintiff now describing its own actions as unethical--and
the judge agreeing with Plaintiff.
Following up on the October 30, 2009 minute order, Plaintiff prepared the injunction
order on which this appeal is based, which was signed on December 11, 2009 (exhibit
46) (IV AA 785). The order includes only a general statement about Defendant's
compliance with the April 6, 2009 stipulated injunction rather than specifying any
statement on Defendant’s website that violated the injunction. The order stated that
“The Court finds that Defendant has not complied with the Injunction or this Court’s
orders and continues to attempt to circumvent the Injunction. The Court further finds
that Defendant has been unwilling to modify her websites in good faith.”
V. Note regarding Reporter’s Transcript of February 20, 2009
The court reporter had no motivation to falsify the transcript of February 20, 2009. It
appears that someone told her to alter the ending of the transcript to conceal the fact
that the judge had silently directed the bailiff to take Defendant out of the courtroom.
Defendant was not allowed to make her objections to the summary adjudication ruling.
Modification of injunction
The court modified the April 5, 2009 injunction on December 11, 2009 (Exhibit 2). The
fourth paragraph of this ruling, which permanently forbade Defendant from writing or
speaking the name of Plaintiff, was overturned by the Court of Appeal on August 5,
2011 (Exhibit 3).
The first three paragraphs of the ruling, however, are still in effect and are very
interesting. The first three paragraphs of the December 11, 2009 injunction do not
enjoin anything. However, the first paragraph of the December 11, 2009 injunction
states that the April 6, 2009 injunction (Exhibit 1) enjoined Defendant from publishing
certain “accusations.”
In fact, the April 6, 2009 agreement was so poorly worded and did not actually
enjoin anything, although it did order Defendant to remove certain statements from her
website. Nevertheless, Defendant is willing to accept the INTENDED meaning of the
April 6, 2009 stipulated injunction. Sadly, both Plaintiff and the court have subverted
the intended meaning, and the injunction has been misused. Plaintiff and the court
have acted as though the April 6, 2009 injunction says and means something that it
does not say and was not intended to mean. Clearly, this injunction needs work if it to
have any use. It seems plausible that neither Plaintiff nor the court bothered to pay
much attention to the wording of the April 6, 2009 stipulated injunction because they
assumed that it did not matter how it was worded; they believed they could use it to
mean whatever they wanted.
The Standard of Review
The standard of review is de novo, independent review. “When an injunction depends
on the construction of a statute, and the matter is purely a question of law, the
standard of review is whether the statute was correctly constructed, and accordingly
the appellate court reviews de novo the court’s order granting an injunction”
Teamsters Local 856 v. Priceless, LLC (2003). Also Yes on Measure A v. City of Lake
Forest (1997) and Evans v. Evans (2008) 162 Cal. App. 4th 1157, 1166, 76 Cal. Rptr.
3d 859.
In this case the statute is the First Amendment of the US Constitution and the
California Constitution.
The court abuses its discretion if it exceeds all bounds of reason. If there is a
likelihood of success by Appellant on appeal after the final judgment of the trial court,
whenever that might occur, or interim harm, the appellate court must reverse the
injunction of the Superior Court.
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.
ARGUMENT
I. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant to summary
adjudication. The wording was agreed upon by Plaintiff and Appellant and intended as
a settlement. The April 6, 2009 order states in pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF &
HOLTZ, APC’s Motion for Summary Adjudication came on regularly for hearing before
the Honorable Judith F. Hayes in Department 68 of the above-entitled court. After
having considered the moving papers and evidence therein, and all other records,
pleadings and files contained herein, the court ordered that Plaintiff’s Motion for
Summary Adjudication was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY
ORDERED as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is
entitled to the relief demanded. Defendant (sic) is entitled to
an injunction enjoining and restraining Defendant from
continuing to publish or republishing by any method or media,
including but not limited to all electronic data, websites and
web pages, the defamatory statements alleged in Plaintiff’s
First Amended Complaint pertaining to Plaintiff and any of its
lawyers past or present, and future publication of statements
with regard to Plaintiff and its lawyers accusing illegal conduct
or violation of law, unethical conduct, lack of professional
competence or intimidation…” (exhibit 33) (II AA 467)
II. The April 6, 2009 permanent injunction as written is
unconstitutional on its face.
The Stutz Firm maintains that there is no difference between enjoining the repetition of
a particular statement already judicially found to be defamatory, on the one hand, and
enjoining different statements to which so such finding has yet been made. The
California Supreme Court, however, clearly disagrees. It made this point repeatedly,
expressly and unambiguously in Balboa Island.
The Court stated in the very first paragraph: “[W]e hold
that the injunction is overly broad, but that defendant’s
right to free speech would not be infringed by a properly
limited injunction prohibiting defendant from repeating
statements about plaintiff that were determined at trial to
be defamatory.”
Balboa Island, 40 Cal. 4th at 1144 (emphasis added). Lest there be any doubt, the
Court reiterated:
[P]reventing a person from speaking or publishing something that, allegedly, would
constitute a libel if spoken or published is far different from issuing a posttrial
injunction after a statement that already has been uttered has been found to constitute
defamation. Prohibiting a person from making a statement or publishing a writing
before that statement is spoken or the writing is published is far different from
prohibiting a defendant from repeating a statement or republishing a writing that has
been determined to be defamatory and, thus, unlawful. This distinction is hardly
novel. [Citing cases]
Id. at 1149-50 (emphases in original).
The Court thereby expressly rejected the precise contention upon which the Firm
relies herein: that a prior finding of defamation as to certain statements allegedly
justifies the restraint of different statements not yet made. The Court yet again
repeated this holding:
The United States Supreme Court has never addressed the precise question before
us – whether an injunction prohibiting the repetition of statements found at trial to be
defamatory violates the First Amendment. But several high court decisions have
addressed related questions, and each is consistent with our holding that a court may
enjoin the repetition of a statement that was determined at trial to be defamatory.
Id.. at 1151. This holding – and express limitation – is consistent with the holding of
other authorities as well, as well as their reading of Balboa Island. See, e.g., Allen v.
The Ghoulish Gallery (S.D. Cal. 2007) 2007 WL 1555739, *3 (“The repetition of
defamatory statements may be enjoined only where a Court has determined, after trial,
that one party has defamed another. See Balboa Island Village Inn, Inc. v. Lemen.”);
Evans, 162 Cal. App. 4th at 1168 (repeatedly noting that the California Supreme Court
in Balboa Island only permitted injunctions against the repetition of specific statements
already judicially determined to be defamatory). As the Nebraska Court of Appeal
recently held in a nearly identical case to the one at issue herein:
[T]he court enjoined Campbell with respect to ‘any’ publications regarding Nolan which
were published before the trial on March 12, 2003. However, there were only three
publications . . . that had been adjudicated as containing libelous statements per se
and, therefore, as not containing protected speech. The prohibition against
republishing ‘any’ publication authored by Campbell against Nolan before trial
obviously sweeps up publications which had not been adjudicated as libelous. . . .
Therefore, the injunction is too broad as written and must be narrowed so that it is not
an unconstitutional prior restraint. . . . In order for the injunction to pass constitutional
muster, the suppression must be limited to the precise statements already found
libelous.
Nolan v. Campbell (2004) 13 Neb. App. 212, 227.
Because the trial court’s modification of the injunction is indisputably broader than its
initial resolution of the Firm’s motion for summary judgment, and prohibits statements
not already adjudicated to be defamatory, it is a constitutionally impermissible prior
restraint, and must be vacated.
Third, as a matter of both policy and doctrine, the issuance of a prior restraint is
impermissible given the ready availability of alternative remedies. Those who defame
others are answerable for damages. Similarly, parties who violate an injunction are
liable for fines, imprisonment, and fees. Cal. Code Civ. P. § 1218. The availability of
these alternative remedies precludes the entry of injunctive prior restraints. Balboa
Island, 40 Cal. 4th at 1149 (“[I]f the defendants persist in their intention of giving this
libelous production to the public, the plaintiff must have his remedy by a civil suit in a
court of law; or by instituting a criminal prosecution, to the end that the libelers, upon
conviction, may receive their appropriate punishment, in the penitentiary or
otherwise.”) (citation omitted); Gilbert, 43 Cal. App. 4th at 1145 & 1148 (“While
Brinkman may be held responsible for abusing his right to speak freely in a
subsequent tort action, he has the initial right to speak freely without censorship. . . .
[Ms.] Gilbert’s remedy, if Brinkman or the Enquirer abuse their right of free speech and
press, is to file a civil action for damages, as she has done here.”); see also Evans,
162 Cal. App. 4th at 1168 (same); Allen, 2007 WL 1555739 at *3 (“Defamatory
statements cannot be restrained; the remedy for defamation is a damages action after
publication.”).
Fourth, as this Court has held, “[t]o establish a valid prior restraint under the federal
Constitution, a proponent has a heavy burden to show the countervailing public
interest is heavy, the prior restraint is necessary and would be effective in promoting
this interest, and less extreme measures are unavailable.” Evans, 162 Cal. App. 4th at
1167. The Firm cannot satisfy the last of these prerequisites. The trial court nowhere
made an express finding that no lesser remedy than a wholesale deprivation of Ms.
Larkins’ First Amendment rights would suffice to ensure her compliance with the
stipulated injunction. See AI789-796 (bereft of any such holding). Moreover, the
undisputed facts would belie any such conclusion, as not only did the trial court
effectively punish Ms. Larkins for contempt (and impose a $3000 fine; Ms. Larkins in
fact paid this sanction), but the court also entered default for further alleged
noncompliance. AI1012. As this Court said in reversing the injunctive relief ordered
by the trial court in Evans, “any permissible order ‘must be couched in the narrowest
terms that will accomplish the pin-pointed objective permitted by constitutional mandate
and the essential needs of the public order.’” Id. The trial court’s order fails that test
here just as it did in Evans. See also Balboa Island, 40 Cal. 4th at 1158 n.10
(expressly refusing to decide “whether, in an individual case, an injunction prohibiting
the defendant from repeating defamatory statements could, or should, be denied
because an award of damages would be an adequate remedy”).
The injunction prohibits even speech that is truthful. It prohibits speech that is not
defamatory. It prohibits speech about events that have not yet transpired. It even
prohibits Ms. Larkins from petitioning for the redress of grievances. The trial court’s
overbroad injunction must be reversed for these additional reasons as well. Balboa
Island, 40 Cal. 4th at 1160-61 (reversing injunction to this extent); Nolan, 13 Neb. App.
at 228 (similarly reversing injunction and noting that “[s]ubsequent events and issues,
which we cannot foresee, could make Campbell’s use of the prohibited words”
permissible).
Briefly put, there is neither precedential nor principled support for the Firm’s novel
theory that an individual surrenders her vital First Amendment right to make
statements about a party – however truthful - merely because she has been found to
have previously made other (unprotected) statements about that entity. Ms. Larkins
may be fined, ordered to pay damages and fees, and even imprisoned were she to be
found to continue impermissibly her alleged defamation of the Stutz Firm. But the trial
court’s modified injunction does more, and constitutes an impermissible prior restraint
in violation of the First Amendment. It must thus be vacated.
This Court’s Holding in Evans v. Evans Is Controlling.
Finally, in all material respects, the present case is on all fours with this Court’s recent
holding in Evans v. Evans (2008) 162 Cal. App. 4th 1157, and the present panel
should follow this sage and prescient authority.
As in the present case, this Court in Evans involved a plaintiff – there, a deputy sheriff
– who filed a defamation action against a defendant who was allegedly disseminating
untrue information about him on the internet. Id. at 1162-63. There, as here, the
defendant unsuccessfully represented herself in pro per, and the plaintiff successfully
obtained an injunction from the San Diego Superior Court that enjoined the defendant
from publishing “’false and defamatory statements’ about [plaintiff] on the Internet.” Id.
at 1161.
This Court, in an opinion by Justice Haller and joined by Justices Huffman and
McIntyre, reversed. This Court noted that “[t]he right to free speech is one of the
cornerstones of our society, and is protected under the First Amendment of the United
States Constitution and under an even broader provision of the California
Constitution.” Id. at 1166 (citations omitted). This Court also noted that a prior
restraint is “the most serious and least tolerable infringement on First Amendment
rights,” and that prior restraints “are highly favored and presumptively violate the First
Amendment.” Id. at 1166-67. “This is true,” this Court noted, “even when the speech
is expected to be of the type that is not constitutionally protected,” noting that the
Supreme Court in Near v. Minnesota (1931) 283 U.S. 697, had rejected as
impermissible a prior restraint on periodicals containing “malicious, scandalous and
defamatory” material. Evans, 162 Cal. App. 4th at 1167.
This Court squarely held in Evans that the injunction entered by the trial court
was an invalid prior restraint prohibited by both the First Amendment as well
as Article I, Section 2 of the California Constitution. “We conclude,” this Court
stated, that “the preliminary injunction was overbroad and constituted an invalid prior
restraint before trial.” Id. at 1161. This Court reviewed the California Supreme Court’s
opinion in Balboa Island, which it noted stood for the proposition that while a party may
permissibly be enjoined “from repeating specific statements found at trial to be
defamatory,” Evans, 162 Cal. App. 4th at 1168 (emphasis in original), the trial court’s
injunction did not merely enjoin specific prior statements that had already been
expressly found defamatory, but instead included statements – including but not limited
to those not yet made -- that had not previously been adjudicated to be defamatory.
Id. at 1169. This Court noted, citing Gilbert, that “[w]hile a party may be held
responsible for abusing his right to speak freely in a subsequent tort action, he has the
initial right to speak freely without censorship.” Id. at 1168. This Court held:
Under these principles, the court’s preliminary injunction prohibiting Linda from
publishing any ‘false or defamatory’ statements on the Internet is constitutionally
invalid. Because there has been no trial and no determination on the merits that any
statement made by Linda was defamatory, the court cannot prohibit her from making
statements characterized only as ‘false and defamatory.’ . . . It is well-settled that a
plaintiff may recover damages for speech that is proved to be damaged or libelous.
Additionally, a court may enjoin a defendant after trial from repeating defamatory
statements. . . . [But] a court may not constitutionally prevent a person from uttering a
‘defamatory’ statement before it has been determined at trial that the statement was
defamatory.
Id. at 1169.
What was true in Evans is equally true here. Indeed, the injunction applied to Ms.
Evans was even more limited than the one applied to Ms. Larkins, as the former
restrained only “false and defamatory” statements, whereas the one at issue here
denies Ms. Larkins permission to “say anything.”
Just as the trial court’s injunction was an impermissible prior restraint in Evans, so too
is the trial court’s injunction here equally impermissible. Even if a trial court may enjoin
the repetition of specific statements previously adjudicated to be defamatory, it may
not enjoin other statements not previously so found. This central principle is
dispositive, and compels reversal.
III. The injunction was achieved by abuse of discretion and denial of due process and
equal protection under the law, and has been misinterpreted.
A. As misinterpreted by the court, the injunction is even more unconstitutional that it
appears on its face, since it has been used to prevent Appellant from saying
“anything” about Plaintiff. The trial judge made this perfectly clear on June 21, 2012:
The Court: “SO I'M NOT GIVING YOU PERMISSION TO PUT ANYTHING ON” (3 RT
1511 line 19).
The trial court refused on June 21, 2012 to say whether the statements “Daniel Shinoff
trains school attorneys” and “Daniel Shinoff plans legal tactics against parents” are
violations of the injunction. Yet these statements angered the judge so much on
October 30, 2009, during the hearing regarding Plaintiff’s first Motion to Strike
Defendant’s Answer (Exhibits 38-46 III AA 480-738), that she issued an order that
Defendant could never, by any means or method, mention Plaintiff’s name
(exhibit 44) (III AA pages 748).
MS. LARKINS: SO YOU ARE SAYING THAT TRAINING--DANIEL SHINOFF TRAINS
SCHOOL ATTORNEYS IS A VIOLATION OF THE INJUNCTION?
THE COURT: WHAT I'M SAYING IS THAT I WILL NOT GO WITH YOU WORD BY
WORD THROUGH WHAT YOU WANT TO DO, BECAUSE I BELIEVE IT IS PART OF
YOUR PLAN TO CIRCUMVENT THE COURT ORDER.
YOU DON'T REALLY WANT TO KNOW FROM THE COURT WHAT THE COURT IS
SAYING ABOUT A WORD OR TWO WORDS BECAUSE YOU INTEND TO GO
FORWARD, AS I SEE IT, AND PUT THE SAME DEFAMATORY MATERIAL ON THAT
WEBSITE THAT YOU'VE MAINTAINED ALL ALONG. AND THAT'S NOT GOING TO
HAPPEN.
SO I'M NOT GOING TO ANSWER YOUR SPECIFIC QUESTION ABOUT A WORD.
"TRAINED ATTORNEYS," OF COURSE IS NOT DEFAMATORY ON ITS FACE, AND
IT'S NOT DEFAMATORY WHEN STANDING ALONE, BUT IN CONTEXT -- AND THE
CONTEXT IN WHICH YOU EMPLOY IT, IT MAY WELL BE. SO I'M NOT GIVING YOU
PERMISSION TO PUT ANYTHING ON.
(III RT 153 lines 2-19)
The trial judge said that the statement Daniel Shinoff trains school attorneys “may well
be” defamatory. Apparently the judge is not sure, so she’s not giving Defendant
permission to put anything (anything!) on her website. How can the judge still not be
sure when the statement “Daniel Shinoff trains school attorneys” has been discussed
in this case for about three years and the webpage it appears on is in the court files?
It is her job to judge, and she refuses to do it. If the judge doesn’t know whether it’s a
violation of the April 6, 2009 injunction, how can Appellant know?
The judge explained further on June 21, 2012:
THE COURT: WE'RE GOING TO LOOK AT THIS IN TOTO AND SEE WHAT THE
WEBSITE SAYS, WHETHER OR NOT IT'S DEFAMATORY TO THE LAW FIRM. AND IF
IT IS, OR IF IT VIOLATES THE TERMS OF THE INJUNCTION THAT YOU AGREED TO,
THEN I'LL DO WHAT HAS TO BE DONE TO ENFORCE THE INJUNCTION. (Exhibit 90)
(III PA 1511 lines 20-25)
However, the judge did not include a single specific statement of Defendant’s in her
July 27, 2012 decision striking Defendant’s complaint. The judge has simply refused
to do her job in this case.
B. The court has abused its discretion
1. Indicating the court’s intention to violate the law and abuse its discretion is the Dec.
11, 2009 modified injunction that ordered Appellant to never say anything about
Plaintiff or its attorneys. That injunction was overturned by the Court of Appeal on
August 5, 2010, but the trial court seems to be resisting the decision of the Court of
Appeal. Instead of being chastened, the trial court has simply interpreted the April 6,
2009 injunction to mean that Appellant may never speak or write the name of Plaintiff
or its attorneys.
2. The motivation of the court appears to be to silence public debate.
Prohibiting Appellant from saying anything at all about Plaintiff this was the
judge’s intent before she even signed the order:
April 6, 2009 court transcript (I RT 91, 9-11):
"You have to tone it down in the website, take this law firm
off the website."
3. The court revealed that it was motivated to limit Defendant’s speech far beyond the
scope of the injunction. The court revealed that it wanted to go much farther than
removing statements found to be defamatory and preventing specific accusations.
The court wanted all statements about the law firm, no matter how true they might be,
and no matter how significant to the public good the discussion of those issues might
be, removed from the site.
The court also seemed to make a threat to Defendant, making clear that Defendant
would have to limit her speech far, far beyond the scope of the injunction in order to
“save [herself] some trouble.” The court stated, “Take this law firm off the website.
That is advice. It is not part of the order. But save yourself some trouble.” (I RT
91,10-13)
The court also explained WHY it wanted Defendant to remove the law firm from her
website: “A lawyer does what a lawyer does in every case, and if we had people putting
up websites for every lawyer they didn’t like we’d have so many websites the Internet
would be boggled, if that is something that can happen electronically.” ((I RT 91,13-17)
The judge’s words might not set off so many alarms if it weren’t for the
disparity in the court’s disparity in treatment of plaintiff and defendant in this
case, violating Defendant’s right to equal protection of the law.
C. Constitutional rights can be taken away only by due process.
1. Appellant did not give up any constitutional rights when she signed the
agreement/stipulated injunction on April 6, 2009.
2. Appellant did not have due process before the agreement was obtained, and the
agreement was obtained through pressure and fraud. An agreement obtained through
fraud is null and void.
3. Even if Appellant’s agreement with Plaintiff were valid, the injunction is not valid
because the Bill of Rights constrains government in a way that does not constrain
ordinary citizens.
4. Appellant made this argument on August 24, 2012:
MS. LARKINS: …TWO CITIZENS OF THE UNITED STATES OR RESIDENTS OF THE
UNITED STATES CAN MAKE ANY KIND OF AGREEMENT THEY WANT. BUT THE
COURT CAN'T. THE COURT HAS TO OBEY THE CONSTITUTION. THE COURT
CANNOT MAKE AN INJUNCTION THAT'S UNCONSTITUTIONAL.” (III RT 177,18-22)
D. There is nothing in the April 6, 2009 agreement about “implying”; the court is not
free to take away constitutional rights, especially since there was fraud, lack of due
process, and lack of notice in creating and enforcing this injunction.
THE COURT:
Page 2, line 13 WHEN YOU TALK ABOUT FIRST AMENDMENT
14 RIGHTS AS WITH ANY CONSTITUTIONAL RIGHT, THE FACT IS THAT WE DO ALL
HAVE THE RIGHT TO FREE SPEECH. BUT AS WITH ANY RIGHT IT CAN BE
BARGAINED AWAY. YOU CAN BARGAIN AWAY A CONSTITUTIONAL RIGHT AS PART
OF AN AGREEMENT.
Pge 3 THE COURT: … IF AS PART OF A
BARGAIN YOU AGREE TO GIVE UP THAT CONSTITUTIONAL RIGHT OR TO MODIFY
IT IN SOME WAY WELL, IN THIS CASE IT SEEMS TO ME THAT YOU
HAVE AGREED TO MODIFY YOUR FREE SPEECH RIGHTS AS PART OF A BARGAIN.
AND THAT MEANS THAT, NO, YOU CAN'T GO ON THE WEBSITE AND CONTINUE TO
DO WHAT YOU HAVE BEEN DOING IN TERMS OF IMPLYING THAT THERE'S
ILLEGAL ACTIVITY ON THE PART OF THIS LAW FIRM, AND I THINK THAT'S THE
COMPLAINT THAT THE LAW FIRM HAS.
E. The court is required to interpret the agreement in the narrowest manner, not the
broadest manner, possible.
The court may not claim that Defendant gave up constitutional rights that she
specifically insisted she was not giving up. And even if Defendant intended to give up
rights, which she did not, the court is not automatically free to take away those rights.
For example, if Defendant agreed that she should be executed for violating the
injunction, the court would not therefore have the right to order her execution.
F. Other Abuse of Discretion
1) The court’s decisions exceed the bounds of reason, and cast an ugly shadow
on the justice system. The court in this case has set itself up to stop Appellant from
reporting any behavior of Respondent that is illegal, unethical, intimidating or
incompetent. The trial court has agreed with Stutz that Plaintiff’s actions are, indeed,
illegal, unethical, intimidating or incompetent. Surprising, but true. Plaintiff and the
court have interpreted the injunction to mean that all Stutz has to do to prevent
Defendant from mentioning its name is to claim that every sentence Defendant writes
about Plaintiff is an accusation of illegal, unethical intimidating or incompetent
behavior.
2) Appellant is not allowed to publish court documents in this case, in violation of
the requirement that the justice system be transparent. The court seems to be trying
to conceal its abuse of discretion and violation of the constitution by expanding the
injunction to cover public records.
3) Appellant is not allowed to call the police, or report wrongdoing to the proper
authorities, or seek legal counsel. Apparently she’s not even allowed to discuss her
lawsuit with her husband, although he would be financially liable for any judgment.
4) The judge has illegally included third-party comments in her injunction, in
violation of the Communications Act.
5) There was no jury trial for defamation in this case.
6) The trial court has made constant false and prejudicial assertions, such as
saying Appellant’s longer version of her 8-page brief regarding the Motion to Strike
(exhibits 95b, 95c) was “a violation” (3 RT 170, 17-21). In fact, Appellant only filed the
8-page version; the longer version was attached as an exhibit (VIII AA 1718).
However, the judge’s false claim reveals how upset she was about the mere existence
of the longer version. Interestingly, this exhibit and many others appear to have been
improperly destroyed by the court. Denise Jones, a supervisor of the San Diego
Superior Court, called up Appellant on February 1, 2013 and said the exhibits were
missing and there was nothing the court could do.
7) The court revealed that it was motivated to limit Defendant’s speech far beyond
the statements ruled to be defamatory in summary adjudication, which gives
considerable insight into the motivation of the court’s decisions during the discovery
phase of the case as well as the court’s decision regarding summary adjudication.
8) The court has interpreted the injunction variously as meaning that Appellant
must first determine if a statement accuses Plaintiff of illegal, unethical, intimidating or
incompetent actions before she publishes it. The intended meaning of the injunction
was that Appellant was not to express certain opinions. But the court has interpreted
the injunction as forbidding Appellant from reporting simple facts, even when no
opinion about ethics, legality, etc. is included, if Plaintiff and the court find that
particular action to be unethical, etc. Bizarrely, Plaintiff has claimed that “Daniel
Shinoff trains school attorneys” is a statement about an unethical action! This is NOT
what the injunction says or what was agreed upon by the parties. Also, if the court
doesn’t know if statement such as “Daniel Shinoff trains school attorneys” accuses
Plaintiff of illegal, unethical, intimidating or incompetent behavior, how can Appellant
know?
9) The court showed its intention of misconstruing both the injunction and the First
Amendment beginning with the signing of the injunction. The court made absolutely no
effort to clarify the meaning of the stipulated injunction as agreed on by the parties.
The court had absolutely no knowledge about what had been discussed and agreed-
upon by parties. It became clear as time went by that the court wanted to allow Plaintiff
to interpret the injunction in as free a manner as possible, beyond all bounds of
reason. The court did not want Plaintiff to be bound by its discussion and agreements
during settlement.
Conclusion
The injunction here is an express prior restraint on speech, and as such is
presumptively unconstitutional. Bantam Book, Inc. v. Sullivan (1963) 372 U.S. 58, 70.
Moreover, the prior restraint here constitutes a violation of the First Amendment not by
the executive branch, but by the judiciary itself. It would be both bizarre and
unprincipled were this branch of government to immunize its own presumptively
unconstitutional conduct from review by dismissing appeals that challenged the
constitutional validity of such orders. Such a rule would be akin to dismissing an
appeal by Rosa Parks because she continued to sit in the front of the bus.
The trial court erred by imposing the April 6, 2009 injunction to create an impermissible
prior restraint on speech. Defamatory speech admittedly creates some problems. But
the lessons of history have repeatedly taught us that the dangers engendered by prior
restraints – including those imposed by the judicial branch – constitute a far more
dangerous threat to liberty. It is for this reason that the First Amendment prohibits
such acts, even when perceived to be “necessary” at the time.
This principle is especially applicable here. The danger created by the trial court’s
ruling – or, worse yet, any acceptance of that order by this Court – would be far, far
worse than the private losses (if any) that might be imposed upon the profits of the
Stutz Firm by Ms. Larkins’ blog.
This Court should stridently reaffirm the longstanding principles of Anglo-American
prior restraint jurisprudence and vacate the injunction below.
The reasons set forth above compel reversal of the trial court’s April 6, 2009 injunction
as unconstitutional.
Appellant respectfully requests that the Superior Court be instructed to dissolve its
April 6, 2009 injunction and the first three paragraphs of the December 11, 2009
modified injunction and to limit its injunctions to specific statements made by Defendant
that were found to be defamatory at trial.
Dated: February 5, 2013
Respectfully submitted,
By:___________________________
Maura Larkins, Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief
contains __________ words, including footnotes. In preparing this certificate, I relied
on the word count generated by the computer program used to prepare the brief.
By ____________________________
Maura Larkins, Appellant
PROCEDURAL HISTORY
STUTZ ARTIANO SHINOFF & HOLTZ, APC (“SASH”) filed a complaint for defamation
on October 5, 2007 against MAURA LARKINS based on statements she published on
her website, mauralarkins.com, regarding Plaintiff’s law firm’s actions on behalf of local
public schools (I AA 1). Defendant filed an answer on November 16, 2007 (I AA 10)
(exhibit 2). Defendant filed a Motion to Compel Depositions of Plaintiff’s official
representative Ray Artiano, and Plaintiff attorney Daniel Shinoff and production of
documents (I AA 26-51) (exhibits 3-4). The motion was denied (I AA 63).
Plaintiff filed a First Amended Complaint on July 29, 2008 (I AA 64) (exhibit 8).
Defendant filed an Answer on September 29, 2008 (I AA 75).
Defendant filed a second Motion to Compel Deposition of Daniel Shinoff and
Production of documents on January 15, 2009 (I AA 93). The hearing was scheduled
for February 6, 2009, but the decision was delayed by the court until February 20,
2009, which was the date of the Summary Judgment hearing. This Second Motion to
Compel Depositions was denied (I AA 154).
A Motion for Summary Adjudication was filed by Plaintiff on October 24, 2008 (I AA
155). Plaintiff’s request (II AA 290) to throw out the Declaration of Defendant (II AA
269), who had sat for a full six-hour deposition (II AA 299) and produced hundreds of
highly pertinent documents, was granted by the court (II AA 401). The court preferred
to rely on the declarations of Plaintiff partners Ray Artiano (II AA 258b-d) and Daniel
Shinoff (II AA 259), who had either walked out of or never shown up for their
depositions and had claimed that their paralegal couldn’t find Bate-stamped
documents collected by Mr. Shinoff. Defendant’s Opposition was thrown out because
she had used the format that had been replaced on Jan. 1, 2008.
Summary Adjudication was granted to Plaintiff on February 20, 2009 (II AA 401).
A jury trial to determine damages was set for April 6, 2009, however, the trial was
delayed in order see if the settlement reached on that day would satisfy both parties.
The settlement, a stipulated injunction, required Defendant not to publish “statements
with regard to Plaintiff and its lawyers accusing illegal conduct or violations of law,
unethical conduct, lack of professional competence or intimidation” (II AA 467) (exhibit
33).
Plaintiff thereafter filed a Motion to Enforce Injunction, claiming that Defendant had not
gone far enough in censoring her website (exhibit 34) (III AA 480).
On August 7, 2009 the court ruled that Defendant had violated the injunction, but did
not indicate whether one, some or all of the five statements at issue were defamatory
(exhibit 37) (III AA 655a-c). Defendant removed some of the statements from her
website, but kept statements that did not express the opinion that Plaintiff had behaved
illegally or unethically or incompetently or practiced intimidation.
Plaintiff then filed a Motion to Strike Answer and Enter Default (exhibit 38) (III AA 656-
666), specifying five statements on Defendant’s website (page 658). Defendant
removed one of the statements from her website, but kept statements that did not
express the opinion that Plaintiff had behaved illegally or unethically or incompetently
or practiced intimidation.
On October 30, 2009 the trial court denied Plaintiff’s Motion to Strike Answer, and did
not specify any statement that it found to be a violation the injunction (exhibit 44) (IV
AA 748). However, the judge implied in her remarks at the hearing on October 30,
2009 that the five statements did violate the injunction (2 RT 109-115). The trial court
then ordered Defendant to remove every mention of Plaintiff or any of its attorneys
from her website. Plaintiff prepared the injunction order signed on December 11, 2009
modifying the April 6, 2009 stipulated injunction (exhibit 46) (IV AA 785). This
modified order was later overturned by the Court of Appeal (V AA 1021) (exhibit 60).
On January 21, 2010 (IV AA 789) Plaintiff filed an ex parte application requesting that
the court find Defendant in contempt of court. In response, the court scheduled a
Motion to Show Cause regarding contempt, and Defendant was found in contempt of
court on March 10, 2010 and sanctioned $3000 (V AA 1017) (exhibit 57). Defendant
paid $3000 to Plaintiff.
Defendant successfully appeals Dec. 11, 2009 injunction
Defendant appealed the December 11, 2009 injunction on March 18, 2010.
Paragraph four of the injunction was overturned by the Court of Appeal on August 5,
2011 (V AA 1021) (exhibit 60).
The Three Motions
1. Motion to Strike Answer
2. Motion to Modify or Dissolve Injunction (at issue in this appeal)
3. Motion for Jury Trial regarding damages OR to set aside Summary Adjudication
and have jury trial on all issues (has never been resolved)
Motion to Strike Answer
Plaintiff filed its 2nd Motion to Strike Defendant’s Answer, scheduled to be heard on
June 27, 2011, but Plaintiff took it off calendar without explanation (X AA 2118).
Plaintiff’s 3rd MOTION TO STRIKE ANSWER (VI AA 1190-1252) (exhibits 70a through
72) was originally scheduled for Feb. 3, 2012; then moved to March 2, 2012, then was
heard on March 9, 2012, when it was taken under submission; was used to justify
$5000 sanctions on May 30, 2012, but not decided; and finally decided on July 27,
2012 in a decision that did not include a single specific statement that violated the April
6, 2009 injunction (IX AA 2033-2052) (exhibits 96, 97). Defendant’s Opposition was
filed Jan. 23, 2012 (VI AA 1253-1283 ) (exhibits 73-75) and Plaintiff replied (VI AA
1284-1390) (exhibits 76-77).
Shockingly, Plaintiff’s Reply contained a false “flow chart” (VI AA 1302) that Plaintiff
attorney James Holtz claimed under penalty of perjury was accurate (VI AA 1294). On
the contrary, the flow chart can readily be seen to contradict Plaintiff’s own exhibit on
page 1299 and was apparently created to give the impression that the statements that
Plaintiff complains about pop right up at the top of Google results, rather than, as they
actually are, buried deep inside the archives of the blog.
Plaintiff’s 3rd Motion to Strike Answer was heard on March 9, 2012, at which time it was
taken under submission (continued below).
MOTION TO MODIFY OR DISSOLVE INJUNCTION
Defendant’s MOTION TO MODIFY OR DISSOLVE INJUNCTION that is the subject of
this appeal was originally scheduled to be heard on March 2, 2012 (V AA 1045)
(Exhibit 62). The Exhibits for this Motion are in Appellant’s Appendix volume X (X AA
2117-2348) (Exhibit 103). Plaintiff opposed the Motion (V AA 1080) and Defendant
filed a Reply (V AA 1131) (Exhibit 65). It was heard on March 9, 2012, and taken
under submission.
Motion for Jury Trial
Defendant’s Motion for Jury Trial, to set aside Summary Adjudication decision and
grant jury trial on all issues, or, alternatively, to grant jury trial regarding damages, was
originally scheduled to be heard on March 2, 2012 (VI AA 1141) (Exhibit 66, 67). The
Exhibits are the same as those for the MOTION TO MODIFY OR DISSOLVE
INJUNCTION, and can be found in Appellant’s Appendix volume X (X AA 2117-2348)
(Exhibit 103). Plaintiff Opposed and Defendant Replied (VI AA 1176-1189) (Exhibits
68, 69). It was heard on March 9, 2012, and taken under submission.
The March 9, 2012 hearing on three motions (vol. 3 RT 135-146)
The March 9, 2012 hearing on three motions (Motion to Dissolve Injunction, Motion for
Jury Trial, Motion to Strike Defendant’s Answer) was remarkable because the court
WITHDREW its tentative ruling that 1) denied Defendant’s Motion to Modify or Dissolve
Injunction; 2) denied Defendant’s Motion to set aside SA and grant jury trial; and 3)
ordered $5000 sanctions.
The judge did a complete turnabout BEFORE the hearing began, passing out a
schedule for a trial to be held on September 7, 2012, even re-opening discovery!
In fact, no new discovery was ever allowed. The day after Defendant contacted the
Sheriff of Santa Barbara to discuss a subpoena for documents that Commander Sam
Gross had prepared for Defendant, the court did a sua sponte stay of discovery on
May 30, 2012.
Inexplicably, the judge failed, even when asked, to clarify whether the trial would
determine damages pursuant to summary adjudication or would be a trial on all
issues. The judge merely said, “Let me take a look at that” when answer Plaintiff
asked (vol. 3 RT 143, line 24 to 144, line 4) what the court planned to do with Plaintiff’
s recently submitted proposed AMENDED order eliminating the finding of malice in the
court’s Feb. 20, 2009 decision on summary adjudication (IX AA 2057-2116) (exhibits
100-102).
Perhaps unsurprisingly, the Sept. 7, 2012 trial never occurred.
Court allowed more pleadings in March 2012 on Motion to Strike
The court did not rule on any motions on March 9, 2012, but did issue a minute order
on March 12, 2012 (VII AA 1412) (exhibit 82) allowing Defendant to file 6-page
Response (VII AA 1414-1459 ) (exhibits 83-85) regarding new allegations in Plaintiff’s
Reply that had not been mentioned in Plaintiff’s Motion to Strike Answer. Defendant
filed this response on March 21, 2012, attaching an exhibit (VII AA 1443-1444) printed
out on March 20, 2012 that proves that the third-party comments Plaintiff complained
about had been deleted.
Plaintiff filed a SURREPLY regarding its 3RD MOTION TO STRIKE (VII AA 1460).
May 30, 2012 decision on ONE of the three motions—the Motion to Modify or Dissolve
Injunction (vol. 3 RT 147-153)
On May 30, 2012 the court issued a minute order, the order underlying this appeal (VII
AA 1466) (exhibit 87), denying Defendant’s Motion to Modify or Dissolve Injunction,
and ordered her to pay $5000 contempt sanction based on allegations in Plaintiff’s
Motion to Strike. The contempt sanction was based on the court’s March 10, 2010
OSC decision justified by the Dec. 11, 2009 order that had been found
unconstitutional, NOT on any notice or pleading made during the 26 months after
March 10, 2010. Furthermore, Plaintiff’s pleadings for March 10, 2010 had ONLY
discussed whether Defendant had MENTIONED Plaintiff on her website, not whether
there was any violation of the April 6, 2009 injunction (II AA 467)..
The court falsely claimed in its May 30, 2012 order that several specific statements
were on Defendant’s website. The court quoted public court records on Defendant’s
website as containing statements that violated the injunction, and third-party comments
on Defendant’s blog that allegedly violated the injunction. The court has consistently
refused to clarify the injunction regarding whether it covers third-party comments and
public records.
The court tacitly admitted that its May 30, 2012 findings were false or improper when it
left out ALL the May 30, 2012 quotes from its July 27, 2012 decision to Strike
Defendant’s Answer, and did not provide a single new quote from Defendant’s
websites. This also seems to be an admission by the Court that the $5000 sanction
was unjustified.
Court allowed even more pleadings re Motion to Strike to be filed in July 2012
In its May 30, 2012 decision the court asked Plaintiff to write an 8-page pleading about
Defendant’s website (VIII AA 1618) (exhibit 95a) and allowed Defendant to file an 8-
page response (VIII AA 1704-2008) (95b and 95c).
Motion for Reconsideration of May 30, 2012 decision denying modification or
dissolution of injunction
Defendant filed a Motion for Reconsideration of the May 30, 2012 decision on June 8,
2012 (VII AA 1470) (exhibit 88). Plaintiff filed a one-paragraph response (VII AA 1570)
(exhibit 94a). The Motion was denied on August 24, 2012.
Defendant repeatedly asked the judge to clarify the meaning of the injunction
During the June 21, 2012 ex parte hearing regarding Defendant’s Request for Stay
and request for clarification of injunction (VII AA 1490) (exhibit 89), the judge refused
to answer Defendant’s requests to clarify the meaning of the injunction, as can be
seen in the REPORTER’S TRANSCRIPT (vol. 3 RT 147-153).
Defendant scheduled an ex-parte hearing on June 27, 2012 (VII AA 1513). Defendant’
s ex parte application requested a stay of sanctions, and included law and case law
references, and requested clarification of court’s interpretation of injunction. When
Defendant got to the court that day, she was told that there would be no hearing—
ever—on her ex-parte application.
Defendant then made a list of specific questions regarding the meaning of the
injunction and scheduled another ex-parte hearing on July 17, 2012 (VII AA 1531).
Defendant asked the court to specify which statements the court found on Aug. 7,
2009, Oct. 30, 2009; and Dec. 11, 2009 to be violations of the April 6, 2009 injunction.
The court continued (VII AA 1529) the hearing until July 27, 2012.
July 27, 2012 decision Striking Defendant’s Answer
Once again, the court did a remarkable turnaround between the time it produced a
tentative ruling on July 26, 2012 (see next paragraph regarding absence of this
document from the Appellant’s Appendix) and the time it produced the actual minute
order for July 27, 2012 (IX AA 2033) (exhibit 96). The tentative ruling claimed that
statements were “currently” on Defendant’s sites, when the court had known for
several months that the statements (actually, public records and third-party comments)
had been erased.
(Appellant apologizes, but she has misplaced the July 26, 2012 tentative ruling, and so
it does not appear in the Appendix. But Appellant hopes to find it before this appeal is
decided. Appellant has filed a new Motion, requesting the trial court to Set Aside
Default and Dissolve Injunction, in which Appellant argues that before the trial court
can strike Appellant’s Answer, the court must set aside its Summary Adjudication
decision as well as the April 6, 2009 settlement/stipulated injunction that was the direct
result of the SA decision. If the trial court grants the new motion, then the instant
appeal will be moot. If the court denies the motion, Appellant will appeal it and request
that it be joined to the instant appeal. By that time, Appellant will most likely have
found the July 26, 2012 tentative ruling.)
During the July 27, 2012 hearing, (vol. 3 RT 154-171) Defendant tried once again to
understand the court’s interpretation of the April 6, 2009 injunction:
Ms. Larkins: Did the court find that Plaintiff behaved unethically or illegally in the Dr. B.
J. Freeman case? Is this the reason that I’m not allowed to publish information about
this case? (vol. 3 RT 163 lines 2-5).
Ms. Larkins: …I believe that is from a document that I never published until Plaintiff
added it to Daniel Shinoff’s declaration. It’s a court document that was put into the
court record by Plaintiff. I need to know if I am not allowed to publish public court
records (vol. 3 RT 164 lines 20-24).
Ms. Larkins: And I would like your honor to tell me if it is okay to say Julie Hatoff sued
for extortion, because that’s what the website says now (3 RT 165, 26-28 to 166 1).
The court found on July 27, 2012 that on April 6, 2009 Defendant understood the
agreement:
The Court: Ms. Larkins, you said on the day you entered into it that you understood
that, and you did. I make that finding (3 RT 168, 7-9).
But on April 6, 2009 and every day thereafter, the court has carefully avoided asking
Defendant or Plaintiff what had been agreed upon, or explaining to Defendant what the
court believed the injunction to mean.
Defendant did not realize that Plaintiff had deceived her, methodically and
intentionally, on April 6, 2009. Plaintiff agreed on April 6, 2009 that Defendant would
be free to publish facts, but not be free to publish any opinion that Plaintiff behaved
illegally, unethically, intimidatingly or incompetently. Defendant described her
discussion with James Holtz in a declaration, and Plaintiff has never denied the fact
that he agreed with her statement of what the injunction meant .
Never in her wildest dreams did Defendant imagine that Plaintiff and the court would
interpret the injunction to mean that Defendant could not report facts if the behavior
being reported actually was unethical, illegal, incompetent or intimidating. And never
did she dream that innocuous statements like “Daniel Shinoff trains school attorneys”
would be found by Plaintiff and the court to be accusations of unethical behavior. Nor
did Defendant imagine that Plaintiff would claim that the factual statement, “Leslie
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.” This is a simple statement
about the history of our city. It offers no opinion. It was written in response to Leslie
Devaney’s published article, “The Collateral Damage of Aguirre’s Furies,” (exhibit 93)
in which Ms. Devaney did indeed express the opinion that her target was unethical.
Leslie Devaney ran for city attorney of San Diego, but the trial court in the instant case
found that she is not a public figure, or even a limited-purpose public figure. The court
has thus transgressed the First Amendment most grievously in using the injunction to
silence political reporting that does not even express an opinion.
The Court [July 27, 2012]: “You have accused the Shinoff Firm of—of so many
unethical actions that I won’t try to list them all here other that the fact that when you
say that the court has never told you what these violations are, in our rulings
previously we have specifically outlined exactly what statements violated the injunction”
(3 RT 168, 17-21).
In fact, the court listed specific statements in ONLY ONE ruling, that of May 30, 2012.
The court included these same statements in its tentative ruling for July 27, 2012.
Minutes after the court made the declaration above, it erased ALL THE SPECIFIC
STATEMENTS from the tentative ruling and filed and extremely brief minute order for
July 27, 2012 (IX AA 2033). The court knew that its tentative ruling contained false
findings and wisely erased the false findings. Since the court has tacitly retracted its
list of specific statements listed in the May 30, 2012, Appellant has no clear indication
of even A SINGLE STATEMENT THAT VIOLATED THE INJUNCTION, despite the
posturing on July 27, 2012. Appellant has never been given proper notice of the
injunction.
In its minute order, the court declared that Defendant’s ex parte questions about the
PERMANENT injunction were moot! Perhaps the court is right about this, since it is
implying that the injunction itself must be thrown out, as well as the summary
adjudication, in order to Strike Defendant’s Answer. The court needs to put its
intention clearly on the record. Either we have a summary adjudication and resultant
settlement/injunction, or we have a stricken answer and default. We can’t have all the
above.
The court made no mention of Defendant’s Motion for Jury Trial it its July 27, 2012
minute order, nor did Plaintiff mention it in the order it prepared (IX AA 2034) (exhibit
97). Appellant objected to the Proposed Order Striking Answer (IX AA 2041).
Plaintiff filed a statement of damages (IX AA 2053) (exhibit 98) and requested default
(IX AA 2056) (exhibit 99). Default was entered. Final judgment has not occurred.
Appellant filed Notice of Appeal on September 4, 2012 (X AA 2367)(exhibit 105).
Appellant’s Notice Designating Record on Appeal was also filed on September 4, 2012
(X AA 2369) (exhibit 106).
STATEMENT OF APPEALABILITY
This appeal is from an order denying Defendant’s Motion to Modify or Dissolve
Injunction of the San Diego County Superior Court and is authorized by the Code of
Civil Procedure section 904.1(a)(6). The intent of CCP section 904.1 (a)(6) is that all
orders granting, changing, or refusing to change injunctions, whether temporary,
permanent or provisional, are appealable [Western Electroplating Co. v. Henness
(1959) 172 Cal. App. 2d 278, 283, 341 P.2d 718]. In particular, orders modifying
injunctions are appealable [Pro-Family Advocates v. Gomez (a996) 46 Cal. App. 1674,
1678 n.1, 54 Cal. Rptr. 2d 600; see also Chico Feminist Women’s Health Center v.
Scully (1989) 208 Cal. App. 3d 230, 251, 256 Cal Rptr. 194].
STATEMENT OF FACTS
The trial court’s abusive actions in obtaining and interpreting and enforcing the
injunction at issue in this appeal is at issue. The court abused its discretion,
exceeding the bounds of reason, on many, many occasions in this case.
I. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant to summary
adjudication. The wording was agreed upon by Plaintiff and Appellant and intended as
a settlement. The April 6, 2009 order states in pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF &
HOLTZ, APC’s Motion for Summary Adjudication came on regularly for hearing before
the Honorable Judith F. Hayes in Department 68 of the above-entitled court. After
having considered the moving papers and evidence therein, and all other records,
pleadings and files contained herein, the court ordered that Plaintiff’s Motion for
Summary Adjudication was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY ORDERED as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is entitled to the relief
demanded. Defendant (sic) is entitled to an injunction enjoining and restraining
Defendant from continuing to publish or republishing by any method or media,
including but not limited to all electronic data, websites and web pages, the defamatory
statements alleged in Plaintiff’s First Amended Complaint pertaining to Plaintiff and any
of its lawyers past or present, and future publication of statements with regard to
Plaintiff and its lawyers accusing illegal conduct or violation of law, unethical conduct,
lack of professional competence or intimidation…” (exhibit 33) (II AA 467)
II. Discovery
Plaintiff’s official representative, Ray Artiano, walked out of his deposition on
November 8, 2007 (I AA 117) after two hours. Plaintiff’s attorney Daniel Shinoff, the
member of Plaintiff’s law firm who was most prominently featured on Defendant’s
website, announced at that time that he would not show up for his noticed deposition
two hours later. He had not filed an objection beforehand, but promised to file a
Motion for Protective Order. He failed to do so. Mr. Artiano also failed to bring to his
Nov. 8, 2008 deposition specific Bate-stamped pages that had been subpoenaed.
The pages were missing from a set of Bate-stamped documents related to statements
on Defendant’s website that had been collected by Mr. Shinoff in 2001 at the school
where Defendant was teaching. Plaintiff claimed that its paralegal could not find the
documents. Defendant filed a Motion to Compel Depositions and Production of
Documents (I AA 26). The motion was denied on April 29, 2008 (I AA 63). This
decision was an abuse of discretion in regard to the deposition of Daniel Shinoff since
no separate statement should have been required to compel a deposition that had
never begun. On January 15, 2009 Defendant filed a second Motion to Compel the
Deposition of Daniel Shinoff. The hearing, scheduled for February 6, 2009, was
delayed by the court until February 20, 2009, which was the date of the Summary
Adjudication hearing, at which time Motion #2 to Compel Deposition was denied (II AA
401), relying on Plaintiff’s false and unsupported claim that Mr. Shinoff’s deposition
had begun.
III. Summary adjudication decision and April 6, 2009
injunction
The court’s decision (II AA 401) to throw out Defendant’s declaration (I AA 269) was an
abuse of discretion. It was also a violation of equal protection of the law since the
judge relied on the declarations of Ray Artiano (I AA 258b-d) and Daniel Shinoff (I AA
259; I AA 230-242) in making her decision. A reasonable person would have doubts
about the reliability of Mr. Shinoff, who had placed documents in a place where a
paralegal couldn’t find them and had refused to be deposed, and Mr. Artiano, who had
walked out of his deposition. A reasonable person would have
placed more reliance on the declaration under oath of
someone who had, as Appellant did, sat for a full six-
hour deposition and produced hundreds of documents.
Inexplicably, the trial court judge in her summary judgment
decision failed to acknowledge her personal familiarity with
the truth of the statement "Daniel Shinoff keeps documents
locked up in his files" (I AA 264) (exhibit 18, "fact" number
10).
The trial court had, in fact, given Mr. Shinoff permission to
keep his documents in files that were so secure that even the
paralegal of the firm couldn’t find them.
[See box at right. > > >]
In an obvious abuse of discretion, the judge found the statement to be defamatory
when she knew it to be true, and knew that Plaintiff had not submitted, and could not
submit, even a scrap of evidence to prove otherwise.
Defendant removed all the statements mentioned in the Motion for
Summary Judgment from her website.
In a demonstration of how desperate Plaintiff is that the truth not be revealed, and how
willing Plaintiff is to use tactics beyond those sanctioned by the law, four days after the
summary judgment decision, Plaintiff filed a request for a restraining order against
Defendant (II AA 454b) on the basis that Defendant had weeks earlier tried to serve a
deposition subpoena on an executive at San Diego County Office of Education.
Plaintiff’s request was summarily denied by a judge other than Judge Judith Hayes (II
AA 454a).
D. Motion to Enforce Injunction August 2007
Plaintiff thereafter filed a Motion to Enforce Injunction, claiming that Defendant had not
gone far enough in censoring her website (exhibit 34) (II AA 480). Plaintiff complained
that Defendant’s description of the firm as “aggressive” was a violation of the April 6,
2009 injunction, even though the injunction concerned only accusations of illegal,
unethical, intimidating or incompetent behavior.
On August 7, 2009 the court ruled that Defendant had violated the injunction, but did
not indicate whether one, some or all of the statements at issue were defamatory
(exhibit 37) (III AA 655a-c). Defendant removed some of the statements from her
website, but kept other statements that did not accuse Plaintiff of illegal, unethical,
intimidating or incompetent behavior.
Then the court interpreted the stipulated injunction to mean that defendant could not
report any facts about Plaintiff, even facts reported by Plaintiff to reporters and
published in local newspapers, if the court found that those facts described actions
which the court found to be illegal or unethical.
Plaintiff then filed a Motion to Strike Answer and Enter Default (exhibit 38) (II AA 656),
specifying five statements on Defendant’s website (exhibit 38) (II AA page 658).
Defendant removed one of the statements from her website, but kept the other
statements on her website. These four statements constitute the entire reason for the
existence of the injunction at issue in this appeal. (See section B above for the four
statements.)
Plaintiff discussed a fifth statement in its motion, but that statement had been removed
from her website by Defendant. The fifth statement was, “Attorney Dan Shinoff fools
the US Office of Civil Rights…In fact, 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].”
Defendant has gone beyond the minimum to obey the stipulated injunction, removing
the statement because it contained the words “fooled the Office of Civil Rights” and
“used the court to try to force a paid expert witness to testify as the school district
wished.” It is a simple fact that Stutz law firm filed a lawsuit against a psychologist
because she refused to testify in support of Vista Unified School District’s
determination that a specific child was ineligible for special education, but Defendant is
willing to go out of her way not to publish her own opinions about the legality and
ethics of Plaintiff’s actions.
Unconstitutional hoax
Defendant does, however, realize now that the stipulated injunction amounted to a
blatant subterfuge by Plaintiff and Judge Hayes, and is unconstitutionally broad, as
proven by the infinite vastness of statements that it prohibits in the interpretation of the
Superior Court, and unconstitutionally vague, as proven by the fact that it has been
interpreted by the Superior Court to mean something completely different from what
Defendant understood when she agreed to it.
IV. On October 30, 2010 the court issued a minute order (exhibit 44) (III AA 748)
stating:
“The Court amends the injunction to reflect that Defendant is ordered to remove from
her website(s) any and all reference to Plaintiff or any of it’s (sic) former or current
employees within 20 days.”
This order was overturned by the Court of Appeal on August 5, 2010, but it helps to
prove the pattern of exceptional abuse of discretion in this case.
The Superior Court’s October 30, 2009 minute order on the Motion to Strike Answer
(exhibit 44) (III AA 748) failed to address whether the court found that one, some or all
of the four statements violated the injunction, but implied in her remarks at the hearing
on October 30, 2009 that at least some of the statements did violate the injunction (RT
98-103). How could these statements violate the injunction? The court’s cryptic
decisions since August 7, 2009 allow only one conclusion: the court interpreted the
stipulated injunction to mean that defendant could not report any facts about Plaintiff,
even facts reported by Plaintiff to reporters and published in local newspapers, if the
court found that those facts described actions which the court found to be illegal or
unethical.
Judge Hayes appears to have agreed with statements in Plaintiff’s motion in which
Plaintiff argued that certain statements by Defendant to be violations of the stipulated
injunction on the basis that the actions described constituted illegal or unethical
behavior. In these statements, Defendant did not accuse Plaintiff of illegal or unethical
behavior, and in fact does not believe that the actions constitute illegal or unethical
behavior. For example, the statement “One of Daniel Shinoff’s specialties is planning
legal tactics against parents who complain that their kids aren’t getting the right
education” is a simple statement of fact. It describes the job that Mr. Shinoff is paid to
do. It is neither illegal nor unethical for Mr. Shinoff to do this job. It is an abuse of
discretion for the court to call such statements a violation of the stipulated injunction.
In order to violate the injunction, Defendant would have to say that Mr. Shinoff’s
actions were illegal or unethical. In this case, it is Plaintiff and the court who are saying
that Plaintiff’s actions were illegal or unethical. The whole lawsuit seems to be thrown
into question when we have Plaintiff now describing its own actions as unethical--and
the judge agreeing with Plaintiff.
Following up on the October 30, 2009 minute order, Plaintiff prepared the injunction
order on which this appeal is based, which was signed on December 11, 2009 (exhibit
46) (IV AA 785). The order includes only a general statement about Defendant's
compliance with the April 6, 2009 stipulated injunction rather than specifying any
statement on Defendant’s website that violated the injunction. The order stated that
“The Court finds that Defendant has not complied with the Injunction or this Court’s
orders and continues to attempt to circumvent the Injunction. The Court further finds
that Defendant has been unwilling to modify her websites in good faith.”
V. Note regarding Reporter’s Transcript of February 20, 2009
The court reporter had no motivation to falsify the transcript of February 20, 2009. It
appears that someone told her to alter the ending of the transcript to conceal the fact
that the judge had silently directed the bailiff to take Defendant out of the courtroom.
Defendant was not allowed to make her objections to the summary adjudication ruling.
Modification of injunction
The court modified the April 5, 2009 injunction on December 11, 2009 (Exhibit 2). The
fourth paragraph of this ruling, which permanently forbade Defendant from writing or
speaking the name of Plaintiff, was overturned by the Court of Appeal on August 5,
2011 (Exhibit 3).
The first three paragraphs of the ruling, however, are still in effect and are very
interesting. The first three paragraphs of the December 11, 2009 injunction do not
enjoin anything. However, the first paragraph of the December 11, 2009 injunction
states that the April 6, 2009 injunction (Exhibit 1) enjoined Defendant from publishing
certain “accusations.”
In fact, the April 6, 2009 agreement was so poorly worded and did not actually
enjoin anything, although it did order Defendant to remove certain statements from her
website. Nevertheless, Defendant is willing to accept the INTENDED meaning of the
April 6, 2009 stipulated injunction. Sadly, both Plaintiff and the court have subverted
the intended meaning, and the injunction has been misused. Plaintiff and the court
have acted as though the April 6, 2009 injunction says and means something that it
does not say and was not intended to mean. Clearly, this injunction needs work if it to
have any use. It seems plausible that neither Plaintiff nor the court bothered to pay
much attention to the wording of the April 6, 2009 stipulated injunction because they
assumed that it did not matter how it was worded; they believed they could use it to
mean whatever they wanted.
The Standard of Review
The standard of review is de novo, independent review. “When an injunction depends
on the construction of a statute, and the matter is purely a question of law, the
standard of review is whether the statute was correctly constructed, and accordingly
the appellate court reviews de novo the court’s order granting an injunction”
Teamsters Local 856 v. Priceless, LLC (2003). Also Yes on Measure A v. City of Lake
Forest (1997) and Evans v. Evans (2008) 162 Cal. App. 4th 1157, 1166, 76 Cal. Rptr.
3d 859.
In this case the statute is the First Amendment of the US Constitution and the
California Constitution.
The court abuses its discretion if it exceeds all bounds of reason. If there is a
likelihood of success by Appellant on appeal after the final judgment of the trial court,
whenever that might occur, or interim harm, the appellate court must reverse the
injunction of the Superior Court.
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.
ARGUMENT
I. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant to summary
adjudication. The wording was agreed upon by Plaintiff and Appellant and intended as
a settlement. The April 6, 2009 order states in pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF &
HOLTZ, APC’s Motion for Summary Adjudication came on regularly for hearing before
the Honorable Judith F. Hayes in Department 68 of the above-entitled court. After
having considered the moving papers and evidence therein, and all other records,
pleadings and files contained herein, the court ordered that Plaintiff’s Motion for
Summary Adjudication was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY
ORDERED as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is
entitled to the relief demanded. Defendant (sic) is entitled to
an injunction enjoining and restraining Defendant from
continuing to publish or republishing by any method or media,
including but not limited to all electronic data, websites and
web pages, the defamatory statements alleged in Plaintiff’s
First Amended Complaint pertaining to Plaintiff and any of its
lawyers past or present, and future publication of statements
with regard to Plaintiff and its lawyers accusing illegal conduct
or violation of law, unethical conduct, lack of professional
competence or intimidation…” (exhibit 33) (II AA 467)
II. The April 6, 2009 permanent injunction as written is
unconstitutional on its face.
The Stutz Firm maintains that there is no difference between enjoining the repetition of
a particular statement already judicially found to be defamatory, on the one hand, and
enjoining different statements to which so such finding has yet been made. The
California Supreme Court, however, clearly disagrees. It made this point repeatedly,
expressly and unambiguously in Balboa Island.
The Court stated in the very first paragraph: “[W]e hold
that the injunction is overly broad, but that defendant’s
right to free speech would not be infringed by a properly
limited injunction prohibiting defendant from repeating
statements about plaintiff that were determined at trial to
be defamatory.”
Balboa Island, 40 Cal. 4th at 1144 (emphasis added). Lest there be any doubt, the
Court reiterated:
[P]reventing a person from speaking or publishing something that, allegedly, would
constitute a libel if spoken or published is far different from issuing a posttrial
injunction after a statement that already has been uttered has been found to constitute
defamation. Prohibiting a person from making a statement or publishing a writing
before that statement is spoken or the writing is published is far different from
prohibiting a defendant from repeating a statement or republishing a writing that has
been determined to be defamatory and, thus, unlawful. This distinction is hardly
novel. [Citing cases]
Id. at 1149-50 (emphases in original).
The Court thereby expressly rejected the precise contention upon which the Firm
relies herein: that a prior finding of defamation as to certain statements allegedly
justifies the restraint of different statements not yet made. The Court yet again
repeated this holding:
The United States Supreme Court has never addressed the precise question before
us – whether an injunction prohibiting the repetition of statements found at trial to be
defamatory violates the First Amendment. But several high court decisions have
addressed related questions, and each is consistent with our holding that a court may
enjoin the repetition of a statement that was determined at trial to be defamatory.
Id.. at 1151. This holding – and express limitation – is consistent with the holding of
other authorities as well, as well as their reading of Balboa Island. See, e.g., Allen v.
The Ghoulish Gallery (S.D. Cal. 2007) 2007 WL 1555739, *3 (“The repetition of
defamatory statements may be enjoined only where a Court has determined, after trial,
that one party has defamed another. See Balboa Island Village Inn, Inc. v. Lemen.”);
Evans, 162 Cal. App. 4th at 1168 (repeatedly noting that the California Supreme Court
in Balboa Island only permitted injunctions against the repetition of specific statements
already judicially determined to be defamatory). As the Nebraska Court of Appeal
recently held in a nearly identical case to the one at issue herein:
[T]he court enjoined Campbell with respect to ‘any’ publications regarding Nolan which
were published before the trial on March 12, 2003. However, there were only three
publications . . . that had been adjudicated as containing libelous statements per se
and, therefore, as not containing protected speech. The prohibition against
republishing ‘any’ publication authored by Campbell against Nolan before trial
obviously sweeps up publications which had not been adjudicated as libelous. . . .
Therefore, the injunction is too broad as written and must be narrowed so that it is not
an unconstitutional prior restraint. . . . In order for the injunction to pass constitutional
muster, the suppression must be limited to the precise statements already found
libelous.
Nolan v. Campbell (2004) 13 Neb. App. 212, 227.
Because the trial court’s modification of the injunction is indisputably broader than its
initial resolution of the Firm’s motion for summary judgment, and prohibits statements
not already adjudicated to be defamatory, it is a constitutionally impermissible prior
restraint, and must be vacated.
Third, as a matter of both policy and doctrine, the issuance of a prior restraint is
impermissible given the ready availability of alternative remedies. Those who defame
others are answerable for damages. Similarly, parties who violate an injunction are
liable for fines, imprisonment, and fees. Cal. Code Civ. P. § 1218. The availability of
these alternative remedies precludes the entry of injunctive prior restraints. Balboa
Island, 40 Cal. 4th at 1149 (“[I]f the defendants persist in their intention of giving this
libelous production to the public, the plaintiff must have his remedy by a civil suit in a
court of law; or by instituting a criminal prosecution, to the end that the libelers, upon
conviction, may receive their appropriate punishment, in the penitentiary or
otherwise.”) (citation omitted); Gilbert, 43 Cal. App. 4th at 1145 & 1148 (“While
Brinkman may be held responsible for abusing his right to speak freely in a
subsequent tort action, he has the initial right to speak freely without censorship. . . .
[Ms.] Gilbert’s remedy, if Brinkman or the Enquirer abuse their right of free speech and
press, is to file a civil action for damages, as she has done here.”); see also Evans,
162 Cal. App. 4th at 1168 (same); Allen, 2007 WL 1555739 at *3 (“Defamatory
statements cannot be restrained; the remedy for defamation is a damages action after
publication.”).
Fourth, as this Court has held, “[t]o establish a valid prior restraint under the federal
Constitution, a proponent has a heavy burden to show the countervailing public
interest is heavy, the prior restraint is necessary and would be effective in promoting
this interest, and less extreme measures are unavailable.” Evans, 162 Cal. App. 4th at
1167. The Firm cannot satisfy the last of these prerequisites. The trial court nowhere
made an express finding that no lesser remedy than a wholesale deprivation of Ms.
Larkins’ First Amendment rights would suffice to ensure her compliance with the
stipulated injunction. See AI789-796 (bereft of any such holding). Moreover, the
undisputed facts would belie any such conclusion, as not only did the trial court
effectively punish Ms. Larkins for contempt (and impose a $3000 fine; Ms. Larkins in
fact paid this sanction), but the court also entered default for further alleged
noncompliance. AI1012. As this Court said in reversing the injunctive relief ordered
by the trial court in Evans, “any permissible order ‘must be couched in the narrowest
terms that will accomplish the pin-pointed objective permitted by constitutional mandate
and the essential needs of the public order.’” Id. The trial court’s order fails that test
here just as it did in Evans. See also Balboa Island, 40 Cal. 4th at 1158 n.10
(expressly refusing to decide “whether, in an individual case, an injunction prohibiting
the defendant from repeating defamatory statements could, or should, be denied
because an award of damages would be an adequate remedy”).
The injunction prohibits even speech that is truthful. It prohibits speech that is not
defamatory. It prohibits speech about events that have not yet transpired. It even
prohibits Ms. Larkins from petitioning for the redress of grievances. The trial court’s
overbroad injunction must be reversed for these additional reasons as well. Balboa
Island, 40 Cal. 4th at 1160-61 (reversing injunction to this extent); Nolan, 13 Neb. App.
at 228 (similarly reversing injunction and noting that “[s]ubsequent events and issues,
which we cannot foresee, could make Campbell’s use of the prohibited words”
permissible).
Briefly put, there is neither precedential nor principled support for the Firm’s novel
theory that an individual surrenders her vital First Amendment right to make
statements about a party – however truthful - merely because she has been found to
have previously made other (unprotected) statements about that entity. Ms. Larkins
may be fined, ordered to pay damages and fees, and even imprisoned were she to be
found to continue impermissibly her alleged defamation of the Stutz Firm. But the trial
court’s modified injunction does more, and constitutes an impermissible prior restraint
in violation of the First Amendment. It must thus be vacated.
This Court’s Holding in Evans v. Evans Is Controlling.
Finally, in all material respects, the present case is on all fours with this Court’s recent
holding in Evans v. Evans (2008) 162 Cal. App. 4th 1157, and the present panel
should follow this sage and prescient authority.
As in the present case, this Court in Evans involved a plaintiff – there, a deputy sheriff
– who filed a defamation action against a defendant who was allegedly disseminating
untrue information about him on the internet. Id. at 1162-63. There, as here, the
defendant unsuccessfully represented herself in pro per, and the plaintiff successfully
obtained an injunction from the San Diego Superior Court that enjoined the defendant
from publishing “’false and defamatory statements’ about [plaintiff] on the Internet.” Id.
at 1161.
This Court, in an opinion by Justice Haller and joined by Justices Huffman and
McIntyre, reversed. This Court noted that “[t]he right to free speech is one of the
cornerstones of our society, and is protected under the First Amendment of the United
States Constitution and under an even broader provision of the California
Constitution.” Id. at 1166 (citations omitted). This Court also noted that a prior
restraint is “the most serious and least tolerable infringement on First Amendment
rights,” and that prior restraints “are highly favored and presumptively violate the First
Amendment.” Id. at 1166-67. “This is true,” this Court noted, “even when the speech
is expected to be of the type that is not constitutionally protected,” noting that the
Supreme Court in Near v. Minnesota (1931) 283 U.S. 697, had rejected as
impermissible a prior restraint on periodicals containing “malicious, scandalous and
defamatory” material. Evans, 162 Cal. App. 4th at 1167.
This Court squarely held in Evans that the injunction entered by the trial court
was an invalid prior restraint prohibited by both the First Amendment as well
as Article I, Section 2 of the California Constitution. “We conclude,” this Court
stated, that “the preliminary injunction was overbroad and constituted an invalid prior
restraint before trial.” Id. at 1161. This Court reviewed the California Supreme Court’s
opinion in Balboa Island, which it noted stood for the proposition that while a party may
permissibly be enjoined “from repeating specific statements found at trial to be
defamatory,” Evans, 162 Cal. App. 4th at 1168 (emphasis in original), the trial court’s
injunction did not merely enjoin specific prior statements that had already been
expressly found defamatory, but instead included statements – including but not limited
to those not yet made -- that had not previously been adjudicated to be defamatory.
Id. at 1169. This Court noted, citing Gilbert, that “[w]hile a party may be held
responsible for abusing his right to speak freely in a subsequent tort action, he has the
initial right to speak freely without censorship.” Id. at 1168. This Court held:
Under these principles, the court’s preliminary injunction prohibiting Linda from
publishing any ‘false or defamatory’ statements on the Internet is constitutionally
invalid. Because there has been no trial and no determination on the merits that any
statement made by Linda was defamatory, the court cannot prohibit her from making
statements characterized only as ‘false and defamatory.’ . . . It is well-settled that a
plaintiff may recover damages for speech that is proved to be damaged or libelous.
Additionally, a court may enjoin a defendant after trial from repeating defamatory
statements. . . . [But] a court may not constitutionally prevent a person from uttering a
‘defamatory’ statement before it has been determined at trial that the statement was
defamatory.
Id. at 1169.
What was true in Evans is equally true here. Indeed, the injunction applied to Ms.
Evans was even more limited than the one applied to Ms. Larkins, as the former
restrained only “false and defamatory” statements, whereas the one at issue here
denies Ms. Larkins permission to “say anything.”
Just as the trial court’s injunction was an impermissible prior restraint in Evans, so too
is the trial court’s injunction here equally impermissible. Even if a trial court may enjoin
the repetition of specific statements previously adjudicated to be defamatory, it may
not enjoin other statements not previously so found. This central principle is
dispositive, and compels reversal.
III. The injunction was achieved by abuse of discretion and denial of due process and
equal protection under the law, and has been misinterpreted.
A. As misinterpreted by the court, the injunction is even more unconstitutional that it
appears on its face, since it has been used to prevent Appellant from saying
“anything” about Plaintiff. The trial judge made this perfectly clear on June 21, 2012:
The Court: “SO I'M NOT GIVING YOU PERMISSION TO PUT ANYTHING ON” (3 RT
1511 line 19).
The trial court refused on June 21, 2012 to say whether the statements “Daniel Shinoff
trains school attorneys” and “Daniel Shinoff plans legal tactics against parents” are
violations of the injunction. Yet these statements angered the judge so much on
October 30, 2009, during the hearing regarding Plaintiff’s first Motion to Strike
Defendant’s Answer (Exhibits 38-46 III AA 480-738), that she issued an order that
Defendant could never, by any means or method, mention Plaintiff’s name
(exhibit 44) (III AA pages 748).
MS. LARKINS: SO YOU ARE SAYING THAT TRAINING--DANIEL SHINOFF TRAINS
SCHOOL ATTORNEYS IS A VIOLATION OF THE INJUNCTION?
THE COURT: WHAT I'M SAYING IS THAT I WILL NOT GO WITH YOU WORD BY
WORD THROUGH WHAT YOU WANT TO DO, BECAUSE I BELIEVE IT IS PART OF
YOUR PLAN TO CIRCUMVENT THE COURT ORDER.
YOU DON'T REALLY WANT TO KNOW FROM THE COURT WHAT THE COURT IS
SAYING ABOUT A WORD OR TWO WORDS BECAUSE YOU INTEND TO GO
FORWARD, AS I SEE IT, AND PUT THE SAME DEFAMATORY MATERIAL ON THAT
WEBSITE THAT YOU'VE MAINTAINED ALL ALONG. AND THAT'S NOT GOING TO
HAPPEN.
SO I'M NOT GOING TO ANSWER YOUR SPECIFIC QUESTION ABOUT A WORD.
"TRAINED ATTORNEYS," OF COURSE IS NOT DEFAMATORY ON ITS FACE, AND
IT'S NOT DEFAMATORY WHEN STANDING ALONE, BUT IN CONTEXT -- AND THE
CONTEXT IN WHICH YOU EMPLOY IT, IT MAY WELL BE. SO I'M NOT GIVING YOU
PERMISSION TO PUT ANYTHING ON.
(III RT 153 lines 2-19)
The trial judge said that the statement Daniel Shinoff trains school attorneys “may well
be” defamatory. Apparently the judge is not sure, so she’s not giving Defendant
permission to put anything (anything!) on her website. How can the judge still not be
sure when the statement “Daniel Shinoff trains school attorneys” has been discussed
in this case for about three years and the webpage it appears on is in the court files?
It is her job to judge, and she refuses to do it. If the judge doesn’t know whether it’s a
violation of the April 6, 2009 injunction, how can Appellant know?
The judge explained further on June 21, 2012:
THE COURT: WE'RE GOING TO LOOK AT THIS IN TOTO AND SEE WHAT THE
WEBSITE SAYS, WHETHER OR NOT IT'S DEFAMATORY TO THE LAW FIRM. AND IF
IT IS, OR IF IT VIOLATES THE TERMS OF THE INJUNCTION THAT YOU AGREED TO,
THEN I'LL DO WHAT HAS TO BE DONE TO ENFORCE THE INJUNCTION. (Exhibit 90)
(III PA 1511 lines 20-25)
However, the judge did not include a single specific statement of Defendant’s in her
July 27, 2012 decision striking Defendant’s complaint. The judge has simply refused
to do her job in this case.
B. The court has abused its discretion
1. Indicating the court’s intention to violate the law and abuse its discretion is the Dec.
11, 2009 modified injunction that ordered Appellant to never say anything about
Plaintiff or its attorneys. That injunction was overturned by the Court of Appeal on
August 5, 2010, but the trial court seems to be resisting the decision of the Court of
Appeal. Instead of being chastened, the trial court has simply interpreted the April 6,
2009 injunction to mean that Appellant may never speak or write the name of Plaintiff
or its attorneys.
2. The motivation of the court appears to be to silence public debate.
Prohibiting Appellant from saying anything at all about Plaintiff this was the
judge’s intent before she even signed the order:
April 6, 2009 court transcript (I RT 91, 9-11):
"You have to tone it down in the website, take this law firm
off the website."
3. The court revealed that it was motivated to limit Defendant’s speech far beyond the
scope of the injunction. The court revealed that it wanted to go much farther than
removing statements found to be defamatory and preventing specific accusations.
The court wanted all statements about the law firm, no matter how true they might be,
and no matter how significant to the public good the discussion of those issues might
be, removed from the site.
The court also seemed to make a threat to Defendant, making clear that Defendant
would have to limit her speech far, far beyond the scope of the injunction in order to
“save [herself] some trouble.” The court stated, “Take this law firm off the website.
That is advice. It is not part of the order. But save yourself some trouble.” (I RT
91,10-13)
The court also explained WHY it wanted Defendant to remove the law firm from her
website: “A lawyer does what a lawyer does in every case, and if we had people putting
up websites for every lawyer they didn’t like we’d have so many websites the Internet
would be boggled, if that is something that can happen electronically.” ((I RT 91,13-17)
The judge’s words might not set off so many alarms if it weren’t for the
disparity in the court’s disparity in treatment of plaintiff and defendant in this
case, violating Defendant’s right to equal protection of the law.
C. Constitutional rights can be taken away only by due process.
1. Appellant did not give up any constitutional rights when she signed the
agreement/stipulated injunction on April 6, 2009.
2. Appellant did not have due process before the agreement was obtained, and the
agreement was obtained through pressure and fraud. An agreement obtained through
fraud is null and void.
3. Even if Appellant’s agreement with Plaintiff were valid, the injunction is not valid
because the Bill of Rights constrains government in a way that does not constrain
ordinary citizens.
4. Appellant made this argument on August 24, 2012:
MS. LARKINS: …TWO CITIZENS OF THE UNITED STATES OR RESIDENTS OF THE
UNITED STATES CAN MAKE ANY KIND OF AGREEMENT THEY WANT. BUT THE
COURT CAN'T. THE COURT HAS TO OBEY THE CONSTITUTION. THE COURT
CANNOT MAKE AN INJUNCTION THAT'S UNCONSTITUTIONAL.” (III RT 177,18-22)
D. There is nothing in the April 6, 2009 agreement about “implying”; the court is not
free to take away constitutional rights, especially since there was fraud, lack of due
process, and lack of notice in creating and enforcing this injunction.
THE COURT:
Page 2, line 13 WHEN YOU TALK ABOUT FIRST AMENDMENT
14 RIGHTS AS WITH ANY CONSTITUTIONAL RIGHT, THE FACT IS THAT WE DO ALL
HAVE THE RIGHT TO FREE SPEECH. BUT AS WITH ANY RIGHT IT CAN BE
BARGAINED AWAY. YOU CAN BARGAIN AWAY A CONSTITUTIONAL RIGHT AS PART
OF AN AGREEMENT.
Pge 3 THE COURT: … IF AS PART OF A
BARGAIN YOU AGREE TO GIVE UP THAT CONSTITUTIONAL RIGHT OR TO MODIFY
IT IN SOME WAY WELL, IN THIS CASE IT SEEMS TO ME THAT YOU
HAVE AGREED TO MODIFY YOUR FREE SPEECH RIGHTS AS PART OF A BARGAIN.
AND THAT MEANS THAT, NO, YOU CAN'T GO ON THE WEBSITE AND CONTINUE TO
DO WHAT YOU HAVE BEEN DOING IN TERMS OF IMPLYING THAT THERE'S
ILLEGAL ACTIVITY ON THE PART OF THIS LAW FIRM, AND I THINK THAT'S THE
COMPLAINT THAT THE LAW FIRM HAS.
E. The court is required to interpret the agreement in the narrowest manner, not the
broadest manner, possible.
The court may not claim that Defendant gave up constitutional rights that she
specifically insisted she was not giving up. And even if Defendant intended to give up
rights, which she did not, the court is not automatically free to take away those rights.
For example, if Defendant agreed that she should be executed for violating the
injunction, the court would not therefore have the right to order her execution.
F. Other Abuse of Discretion
1) The court’s decisions exceed the bounds of reason, and cast an ugly shadow
on the justice system. The court in this case has set itself up to stop Appellant from
reporting any behavior of Respondent that is illegal, unethical, intimidating or
incompetent. The trial court has agreed with Stutz that Plaintiff’s actions are, indeed,
illegal, unethical, intimidating or incompetent. Surprising, but true. Plaintiff and the
court have interpreted the injunction to mean that all Stutz has to do to prevent
Defendant from mentioning its name is to claim that every sentence Defendant writes
about Plaintiff is an accusation of illegal, unethical intimidating or incompetent
behavior.
2) Appellant is not allowed to publish court documents in this case, in violation of
the requirement that the justice system be transparent. The court seems to be trying
to conceal its abuse of discretion and violation of the constitution by expanding the
injunction to cover public records.
3) Appellant is not allowed to call the police, or report wrongdoing to the proper
authorities, or seek legal counsel. Apparently she’s not even allowed to discuss her
lawsuit with her husband, although he would be financially liable for any judgment.
4) The judge has illegally included third-party comments in her injunction, in
violation of the Communications Act.
5) There was no jury trial for defamation in this case.
6) The trial court has made constant false and prejudicial assertions, such as
saying Appellant’s longer version of her 8-page brief regarding the Motion to Strike
(exhibits 95b, 95c) was “a violation” (3 RT 170, 17-21). In fact, Appellant only filed the
8-page version; the longer version was attached as an exhibit (VIII AA 1718).
However, the judge’s false claim reveals how upset she was about the mere existence
of the longer version. Interestingly, this exhibit and many others appear to have been
improperly destroyed by the court. Denise Jones, a supervisor of the San Diego
Superior Court, called up Appellant on February 1, 2013 and said the exhibits were
missing and there was nothing the court could do.
7) The court revealed that it was motivated to limit Defendant’s speech far beyond
the statements ruled to be defamatory in summary adjudication, which gives
considerable insight into the motivation of the court’s decisions during the discovery
phase of the case as well as the court’s decision regarding summary adjudication.
8) The court has interpreted the injunction variously as meaning that Appellant
must first determine if a statement accuses Plaintiff of illegal, unethical, intimidating or
incompetent actions before she publishes it. The intended meaning of the injunction
was that Appellant was not to express certain opinions. But the court has interpreted
the injunction as forbidding Appellant from reporting simple facts, even when no
opinion about ethics, legality, etc. is included, if Plaintiff and the court find that
particular action to be unethical, etc. Bizarrely, Plaintiff has claimed that “Daniel
Shinoff trains school attorneys” is a statement about an unethical action! This is NOT
what the injunction says or what was agreed upon by the parties. Also, if the court
doesn’t know if statement such as “Daniel Shinoff trains school attorneys” accuses
Plaintiff of illegal, unethical, intimidating or incompetent behavior, how can Appellant
know?
9) The court showed its intention of misconstruing both the injunction and the First
Amendment beginning with the signing of the injunction. The court made absolutely no
effort to clarify the meaning of the stipulated injunction as agreed on by the parties.
The court had absolutely no knowledge about what had been discussed and agreed-
upon by parties. It became clear as time went by that the court wanted to allow Plaintiff
to interpret the injunction in as free a manner as possible, beyond all bounds of
reason. The court did not want Plaintiff to be bound by its discussion and agreements
during settlement.
Conclusion
The injunction here is an express prior restraint on speech, and as such is
presumptively unconstitutional. Bantam Book, Inc. v. Sullivan (1963) 372 U.S. 58, 70.
Moreover, the prior restraint here constitutes a violation of the First Amendment not by
the executive branch, but by the judiciary itself. It would be both bizarre and
unprincipled were this branch of government to immunize its own presumptively
unconstitutional conduct from review by dismissing appeals that challenged the
constitutional validity of such orders. Such a rule would be akin to dismissing an
appeal by Rosa Parks because she continued to sit in the front of the bus.
The trial court erred by imposing the April 6, 2009 injunction to create an impermissible
prior restraint on speech. Defamatory speech admittedly creates some problems. But
the lessons of history have repeatedly taught us that the dangers engendered by prior
restraints – including those imposed by the judicial branch – constitute a far more
dangerous threat to liberty. It is for this reason that the First Amendment prohibits
such acts, even when perceived to be “necessary” at the time.
This principle is especially applicable here. The danger created by the trial court’s
ruling – or, worse yet, any acceptance of that order by this Court – would be far, far
worse than the private losses (if any) that might be imposed upon the profits of the
Stutz Firm by Ms. Larkins’ blog.
This Court should stridently reaffirm the longstanding principles of Anglo-American
prior restraint jurisprudence and vacate the injunction below.
The reasons set forth above compel reversal of the trial court’s April 6, 2009 injunction
as unconstitutional.
Appellant respectfully requests that the Superior Court be instructed to dissolve its
April 6, 2009 injunction and the first three paragraphs of the December 11, 2009
modified injunction and to limit its injunctions to specific statements made by Defendant
that were found to be defamatory at trial.
Dated: February 5, 2013
Respectfully submitted,
By:___________________________
Maura Larkins, Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief
contains __________ words, including footnotes. In preparing this certificate, I relied
on the word count generated by the computer program used to prepare the brief.
By ____________________________
Maura Larkins, Appellant
The trial court had, in fact, given
Mr. Shinoff permission to keep his
documents in files that were so
secure that even the paralegal of
the firm couldn’t find them.
Deposition of Ray Artiano page 14
MR. SHINOFF: ...
So I believe that we did a
reasonable, good faith
search to determine what
documents were
responsive to your
request for production.
MS. LARKINS:
Did you read the last line in
this paragraph that is
numbered one?
MR. SHINOFF:
The paralegal was charged
with the responsibility for
looking for the
documents. So she
looked through multiple
documents, and that's
what she found.
MS. LARKINS: Well,
perhaps it's the paralegal's
fault. Perhaps she didn't
read that sentence.
MR. SHINOFF: She's a
very fine paralegal.
MS. LARKINS: Well, this a
very fine sentence. It is
very clear.
...page 16
... MS. LARKINS:
Thank you. Okay. I want
to -- apparently, you
completely avoided all of
this by blaming it on your
paralegal. And you
avoided Number 1,
producing any of those
documents.
Let's look at Number 2.
Okay. Do you have
documents containing
information regarding the
dollar amounts of
payments from Chula
Vista -- Chula Vista
Elementary School
District?
MR. SHINOFF: No.
MS. LARKINS:
Oh. Didn't you just earlier
say that you produced all
the documents?
MR. SHINOFF: I said we
produced the bate
stamped documents, yes.
MS. LARKINS: But on
Number 2, you didn't
produce any of those?
MR. SHINOFF: That's
correct.
MS. LARKINS: May I ask
why?
page 17
MR. SHINOFF: Well, our
objection is that they are
proprietary in nature.
MS. LARKINS: Okay. Did
you produce documents
supporting your claim that
my website has caused
financial losses to your
firm?
MR. SHINOFF: We don't
have specific documents
other than your website
itself, and we have
documents from your
website.
MS. LARKINS: I have no
information on my
website about financial
losses to you as a result of
my website.
MR. SHINOFF: It is our
belief that your website
has interfered with
prospective economic
advantage.
Mr. Shinoff permission to keep his
documents in files that were so
secure that even the paralegal of
the firm couldn’t find them.
Deposition of Ray Artiano page 14
MR. SHINOFF: ...
So I believe that we did a
reasonable, good faith
search to determine what
documents were
responsive to your
request for production.
MS. LARKINS:
Did you read the last line in
this paragraph that is
numbered one?
MR. SHINOFF:
The paralegal was charged
with the responsibility for
looking for the
documents. So she
looked through multiple
documents, and that's
what she found.
MS. LARKINS: Well,
perhaps it's the paralegal's
fault. Perhaps she didn't
read that sentence.
MR. SHINOFF: She's a
very fine paralegal.
MS. LARKINS: Well, this a
very fine sentence. It is
very clear.
...page 16
... MS. LARKINS:
Thank you. Okay. I want
to -- apparently, you
completely avoided all of
this by blaming it on your
paralegal. And you
avoided Number 1,
producing any of those
documents.
Let's look at Number 2.
Okay. Do you have
documents containing
information regarding the
dollar amounts of
payments from Chula
Vista -- Chula Vista
Elementary School
District?
MR. SHINOFF: No.
MS. LARKINS:
Oh. Didn't you just earlier
say that you produced all
the documents?
MR. SHINOFF: I said we
produced the bate
stamped documents, yes.
MS. LARKINS: But on
Number 2, you didn't
produce any of those?
MR. SHINOFF: That's
correct.
MS. LARKINS: May I ask
why?
page 17
MR. SHINOFF: Well, our
objection is that they are
proprietary in nature.
MS. LARKINS: Okay. Did
you produce documents
supporting your claim that
my website has caused
financial losses to your
firm?
MR. SHINOFF: We don't
have specific documents
other than your website
itself, and we have
documents from your
website.
MS. LARKINS: I have no
information on my
website about financial
losses to you as a result of
my website.
MR. SHINOFF: It is our
belief that your website
has interfered with
prospective economic
advantage.
STUTZ MOTION TO CONSOLIDATE
APPEALS 4 AND 5, requesting that
Court of Appeal ignore the Appeal 4
Opening Brief, and allow Stutz to
ignore it--without Stutz being found
in default
APPEALS 4 AND 5, requesting that
Court of Appeal ignore the Appeal 4
Opening Brief, and allow Stutz to
ignore it--without Stutz being found
in default
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
Court transcripts
No Reply was filed for appeal #4, but Stutz' Response to appeal #5 was
taken largely from its Response in appeal #4, and Stutz' points were
addressed in Appellant's Reply for appeal 5.
taken largely from its Response in appeal #4, and Stutz' points were
addressed in Appellant's Reply for appeal 5.