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Stutz Artiano Shinoff & Holtz Response
to Maura Larkins' March 28, 2013 Appeal
re Strike Answer, Default, and April 6,
2009 injunction
to Maura Larkins' March 28, 2013 Appeal
re Strike Answer, Default, and April 6,
2009 injunction
. "On Appeal, Larkins does not challenge the trial court's
finding that she failed to comply with the April 6th
stipulated injunction or the Court's August 7 order
enforcing the stipulated injunction. On remand, the trial court may
consider whether to
exercise its statutory and inherent authority to coerce
compliance with the April 6 or August 7 orders and/or to punish
Larkin~ f.orher failure to comply with said orders in a manner
c.onsist1ntwith the law and the views expressed in this opinion."
PAGE 7
j
(5 AA 1041.) rhis Court thus remanded the proceedingsto the trial court for
Further c.onsid1rati.ono n enforcement of the Stipulated Injunction. (1 RA 1-2.)
F. Stutz's Motion to Strike Larkins' Answer
On Octpber 25, 2011, Stutz filed a motion to strike Larkins' answer
based on her ~.ontinued failure to comply with the April 6, 2009 Stipulated
Injunction, (6 jAA 1190-1200a, 1201-1252, 1284-1390.) The trial court took
the matter under submission, and on March 12, 2012, issued an extended
briefing schedule allowing a surreply and response, (6 AA 1412-1413.)
G. Larkins' Motion to Modify or Dissolve the Stipulated Permanent
Injunction
While ~tutz' s motion to strike Larkins' answer was pending in the trial
court, Larkins] filed a Motion to Dissolve or Modify the April 6, 2009
Stipulated Injunction, (5 AA 1045-1079.) Stutz opposed on both substantive
and procedura~ grounds under Code of Civil Procedure section 533 as invalid
and without substantive merit. (5 AA 1080-1130.)
On Ma~ 30, 2012, the trial court issued a minute order which included
the denial of'Larkins' Motion to Modify or Dissolve the Stipulated Permanent
Injunction. d AA 1467-1468.) Specifically, the trial court stated, "The
Motion of Defendant Maura Larkins to Modify the Injunction is DENIED.
(Code Civ. Prqc. § 533)". (7 AA 1468.)
H. The Court Defers Striking Larkins' Answer And Allows Further
Briefing Regarding Compliance
Also on May 30,.2012, the trial court found, "defendant continues to
post statements on her websites that violate the parties' original stipulated
injunction." (7 AA 1466-1469.) The trial court identified the offending
statements. (7 AA 1466-1467.) The trial court stated that "[a]lthough the
statements change on defendant's web sites, the results are the same.
Defendant continues to willfully violate the stipulated injunction. Defendant
does not assert, nor has she ever argued that her publications do not violate the
original stipulated injunction. The Court of Appeal noted the same. (Court of
Appeal decision, p. 21 ["On appeal, Larkins does not challenge the trial court's
finding that she failed to comply with the April 6 stipulated injunction, or the
court's August 7 order enforcing the stipulated injunction."])" (7 AA 1467.)
The trial court then indicated that it would sanction Larkins: "On the
Court's OSC Re: Sanctions, and as directed by the Court of Appeal, the Court
exercises its discretion to punish defendant for her failure to comply with the
original April 6, 2009 stipulated injunction and her failure to comply with
subsequent Court Orders. (See August 7, 2009, October 30, 2009 and
December 11, 2009). This ruling applies to the parties original stipulated
injunction, and the Court's ruling herein that [defendant] continues to violate
the original stipulated injunction." (7 AA 1468.)
The trial court's May 30,2012 Minute Orderrequested further briefing
from the parties regarding Larkins' post-order compliance with the original
Stipulated Injunction. (7 AA 1467-1468.) This forty-five (45) day window of
opportunity was presumably given to Larkins by the court to allow time to
bring the website into compliance and avoid further penalty for violation of the
Stipulated Injunction. (7 AA 1467-1468.)
8
PAGE 9
I. Larkins' Motion For Reconsideration Of The Denial Of Her
Motion To Modify Or Dissolve The Injunction
Larkins, instead of bringing her website into compliance, filed an
interim motion for reconsideration of the May 30, 2012 order (7 AA 1470-
1489), and three unsuccessful ex parte applications. ,(7 AA 1490-1503 (first
ex parte motion to stay); 7 AA 1504 (minute order denying first ex parte
motion); 7 AA 1513-1528 (second ex parte motion to stay); 7 AA 1529
(minute order denying to reconsider first ex parte motion and denying second
ex parte motion); 7 AA1531-1569 (third ex parte motion).) Larkins also filed
an extraordinary writ for alternative review or prohibition with this Court,
which was denied without comment. (8 AA 1827-1878.)
On June 6, 2012 Larkins filed a timely, but procedurally improper
motionfor reconsideration. (7 AA 1470-1489.) The motion, made under
Code Civ. Proc. section 1008, failed to include an affidavit as required by
subdivision (a), and lacked information required to be included by statute.
(7 AA 1483-1484.) Again, even considering her motion on the-merits, it failed
to contain reference to any new law or fact upon which the trial court could
reconsider the May 30, 2012 order. (See 7 AA 1470-1489.)
J. The Trial Court Strikes Larkins' Answer, And Larkins Appeals
the Order Denying Dissolution or Modification of the Injunction.
Despite repeated warnings from the trial court, after May 30, 2012,
Larkins failed to take any action to comply with the trial court's order to bring
her web sites into compliance with the April 6, 2009 Stipulated Injunction.
(8 AA 1618-1703.) Accordingly, Stutz filed its brief regarding the status of
Larkins' website. (6 AA 1390.)
After considering the further briefing from both parties regarding
Larkins' compliance with the Stipulated Injunction, the trial court granted
PAGE 10
Stutz's motion, and ordered Larkins' answer struck on August 10, 2012.
(9 AA 2034-2040.) To that end, the trial court found "Defendant [Larkins]
failed to comply with the Court's Orders of August 7, 2009 and March 10,
2010 as it applies to the parties' original Stipulated Injunction." (9 AA 2037.)
The trial court also found "Defendant [Larkins1has continued to publish and
republish statements in violation of'the April 6, 2009 Stipulated Injunction [...]
as late as June 5, 2012 and July 5, 2012." (9 AA2038.) Stutz waived payment
of sanctions. (9 AA 2037-2038.)
On September 4, 2012, Larkins appealed from the Minute Order
denying her motion to modify or dissolve the stipulated injunction, which, was
entered on May 30, 2012 by the trial court.' (10 AA 2367.)
K. Default Prove-Up, and the Instant Appeal the Injunction.
Following the trial court's striking of Larkins , answer, Stutz provided
the court with a prove-up brief on damages and requested an entry of
judgment
on its complaint. (11 AA 2385-2390.) On January 29, 2013, as a result of
striking Larkins' answer, the trial court entered final default judgment against
Larkins. (12 A.A 2562.)
In response, Larkins moved the trial court under Code of Civil
Procedure section 473 to set aside the default (which was a judgment at that
point) and under Civil Code section 3424, subdivision (a) as well as Code of
Civil Procedure section 533, to dissolve the injunction. (12 AA 2672-2673.)
After briefing from both sides, on March 6, 2013, the trial court issued an
order denying Larkins' motion in full. (Id.)
After the notice of this appeal and the Appellant's Opening Brief
were filed, Larkins also filed this appeal from the final judgment in the case.
Stutz's motion to consolidate the two appeals was denied by this Court on
May 2,2013.
page 20
1. A Knowing Waiver Of Constitutional Rights Is Valid
Nothing in the Stipulated Injunction is a waiver of protected First
.Amendment speech, as no person has a privilege to defame another.
However,
"it is possible to waive even First Amendment free speech rights by contract."
(ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319;
accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir. 2002)
304 F.3d 927, 935, fn. 9.)
It is a strained analysis at best to construe the stipulated
injunction, the admonishments to Larkins, and her prior
lawsuits for defamation, as anything but a knowing waiver.
(See Sanchez v. County of San Bernardino (2009)
176 Cal.AppAth 516, 528 (the court could see no' way to construe the
confidentiality provision except as a waiver of whatever rights the County had
to disclose the circumstances of Sanchez's resignation).)
2. The Stipulated Permanent Injunction Was Mutually Agreed
Upon And Discussed On the Record With Judge Hayes
Larkins states that she does not understand the injunction or its
terms,
a statement contradicted by the record. (1 RT 91-94.) During the April 6,
2009 hearing on the stipulated injunction, defendant was admonished by the
Court as rights she was giving up. (l RT 91-94.)
Pursuant to standard settlement procedure the trial court clearly
questioned Larkins regarding the terms of the stipulation, her understanding,
rights, and ability to seek counsel. (l RT 91-94; 5 AA 1083-1084.) Larkins
stated that she understood the stipulated agreements terms and agreed to be
bound thereby. (Id.) Larkins further clearly waived the right to seek counsel
and stated she wished to continue in propria persona on the record, before
the
Court signed the stipulated permanent injunction. (Id.)
Larkins continues to claim extrinsic fraud was committed
against her by Plaintiffs and the Court; this claim is patently
untrue.
The stipulated
injunction was reached as a partial settlement, in order for the defendant to
avoid a jury trial on the only remaining issue of damages that day, as liability
had been determined by summary adjudication. Larkins agreed to the
injunction in order to avoid the risks of proceeding on that issue.
3. This Court's Prior Ruling Indicated The Injunction Was
Valid, And The Trial Court Could Coerce Defendant's
Compliance
The Court of Appeal in its decision on August 5, 2011, did not hold the
April 6, 2009 stipulated injunction unconstitutional, and specifically
noted it was not subject to appeal. (See 5AA 1041.) > > >
Rather, the appellate court struck the language expanding the scope of the
stipulated injunction ordered on December 11, 2009. (Id.) This Court
specifically stated that on remand, the trial court may consider
whether to exercise its statutory and inherent authority
to coerce compliance with the April 6, 2009 order. (Id.) > > >
The April 6, 2009 injunction remains in
effect, and was not touched
upon by the Court of Appeal in its
decision. In fact, contrary to Larkins
assertions, the this Court's prior decision in favor did
not change, rule upon, or effect the constitutionality of
the April 6, 2009 stipulated injunction. (See id.).
> > >
Thus, Larkins made no showing of material change with respect to any
circumstance. > > >
V. CONCLUSION
Respectfully, for the foregoing reasons, this court should affirm the
default judgment and order denying Larkins' motion to set aside
default and dissolve injunction.
DATED: December 9, 2013
[signed]
James F. Holtz
1. A Knowing Waiver Of Constitutional Rights Is Valid
Nothing in the Stipulated Injunction is a waiver of protected First
.Amendment speech, as no person has a privilege to defame another.
However,
"it is possible to waive even First Amendment free speech rights by contract."
(ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319;
accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir. 2002)
304 F.3d 927, 935, fn. 9.)
It is a strained analysis at best to construe the stipulated
injunction, the admonishments to Larkins, and her prior
lawsuits for defamation, as anything but a knowing waiver.
(See Sanchez v. County of San Bernardino (2009)
176 Cal.AppAth 516, 528 (the court could see no' way to construe the
confidentiality provision except as a waiver of whatever rights the County had
to disclose the circumstances of Sanchez's resignation).)
2. The Stipulated Permanent Injunction Was Mutually Agreed
Upon And Discussed On the Record With Judge Hayes
Larkins states that she does not understand the injunction or its
terms,
a statement contradicted by the record. (1 RT 91-94.) During the April 6,
2009 hearing on the stipulated injunction, defendant was admonished by the
Court as rights she was giving up. (l RT 91-94.)
Pursuant to standard settlement procedure the trial court clearly
questioned Larkins regarding the terms of the stipulation, her understanding,
rights, and ability to seek counsel. (l RT 91-94; 5 AA 1083-1084.) Larkins
stated that she understood the stipulated agreements terms and agreed to be
bound thereby. (Id.) Larkins further clearly waived the right to seek counsel
and stated she wished to continue in propria persona on the record, before
the
Court signed the stipulated permanent injunction. (Id.)
Larkins continues to claim extrinsic fraud was committed
against her by Plaintiffs and the Court; this claim is patently
untrue.
The stipulated
injunction was reached as a partial settlement, in order for the defendant to
avoid a jury trial on the only remaining issue of damages that day, as liability
had been determined by summary adjudication. Larkins agreed to the
injunction in order to avoid the risks of proceeding on that issue.
3. This Court's Prior Ruling Indicated The Injunction Was
Valid, And The Trial Court Could Coerce Defendant's
Compliance
The Court of Appeal in its decision on August 5, 2011, did not hold the
April 6, 2009 stipulated injunction unconstitutional, and specifically
noted it was not subject to appeal. (See 5AA 1041.) > > >
Rather, the appellate court struck the language expanding the scope of the
stipulated injunction ordered on December 11, 2009. (Id.) This Court
specifically stated that on remand, the trial court may consider
whether to exercise its statutory and inherent authority
to coerce compliance with the April 6, 2009 order. (Id.) > > >
The April 6, 2009 injunction remains in
effect, and was not touched
upon by the Court of Appeal in its
decision. In fact, contrary to Larkins
assertions, the this Court's prior decision in favor did
not change, rule upon, or effect the constitutionality of
the April 6, 2009 stipulated injunction. (See id.).
> > >
Thus, Larkins made no showing of material change with respect to any
circumstance. > > >
V. CONCLUSION
Respectfully, for the foregoing reasons, this court should affirm the
default judgment and order denying Larkins' motion to set aside
default and dissolve injunction.
DATED: December 9, 2013
[signed]
James F. Holtz
PAGE 11
As to the motion to set aside the default judgment, the trial court
explained that Larkins was required to show that judgment had been entered
as a result of "her mistake, inadvertence, surprise, or excusable neglect."
(12 AA 2672.) Addressing Larkins' failure to meet this burden, the trial court
noted that it was "Defendant's willful and deliberate acts, which resulted in the
Court striking the Defendant's answer as a sanction." (Jd.) In finding that the
default was not "through [Defendant's] mistake, inadvertence, surprise, or
excusable neglect," the trial court referenced Larkins' history of continued
willful and deliberate violations of the April 6, 2009 stipulated injunction.
(Jd.) Specifically, the trial court referenced its efforts through the March 10,
2010 monetary sanction and admonishment to place Larkins on notice that
'" ...the Court will be forced to strike [her] answer and take her default. '" (Jd.)
Lastly, the trial court concluded that "[e]ven if Defendant had demonstrated
mistake, inadvertence, surprise, or excusable neglect, [her] motion was
not
'accompanied by a copy of the answer or other pleading
proposed to be filed. '" > > >
(Jd.)
In denying the motion to dissolve the injunction, the trial court found
that Larkins had "failed to establish changes in material facts or law upon
which the injunctionwas granted." (12 AA 2672.) Moreover, Larkins did not
"establish how the ends of justice would be served by the dissolution of the
injunction." (Jd.)
On March 28, 2013, Larkins noticed the instant appeal of the
January 29,2013 final default judgment and the March 6, 2013 denial of her
motion to set aside default and dissolve injunction. (12 AA 2674.)
III. STANDARD OF REVIEW
A. Limited Review On Appeal of Default Judgment
On appeal, review of a default judgment is limited to
questions of jurisdiction; sufficiency of the pleadings and
excessive damages. > > >
(Corona v.Lundigan (1984) 158 Cal.App.3d764, 766-767.)
The trial court's ruling on
a discretionary motion for relief is not disturbed absent a
clear showing of
abuse. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal.
App. 4th 600,
610.)
B. Limited Review On Appeal From Order Denying Motion
to Dissolve Injunction
On appeal from an order refusing to dissolve an injunction, appellate
review is limited to issues newly arising. from the motion to dissolve the
injunction and does not extend to issues that could have been raised on appeal
from the injunction itself. (Malatka v. Helm (2010) 188 Cal.AppAth 1074,
1081-1084; The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch. 2-B
~2:103.1.)
C. Abuse of Discretion Standard
The abuse of discretion standard applies to whether to grant or deny a
permanent injunction. (Horsford v. Board of Trustees of Calif. State Univ.
(2005) l32 Cal.AppAth 359, 390.) And similarly, to a trial court's decision
regarding whether to dissolve a permanent injunction. (North BeverlyPark
Homeowners Ass'n v. Bisno (2007) 147 Cal.AppAth 762, 776.) Abuse of
discretion standard also applied to a trial court's ruling on a discretionary
motion for relief. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal. App.
4th 600,610.)
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a clear
PAGE 12
case of abuse" and "a miscarriage of justice." (Blank v. Kirwan (1985)
39 Ca1.3d311, 331 ("Blank"); Denham v. Super. Ct. (Marsh & Kidder) (1970)
2 Ca1.3d 557, 566 ("Denham ").) On appeals challenging discretionary trial
court rulings, it is appellant's burden to establish an abuse of discretion.
(Blank v. Kirwan, supra, 39 Ca1.3d at 331; Denham, supra, 2 Ca1.3d at 566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only when,
in its exercise, the trial court "exceeds the bounds of reason, all of the
circumstances before it being considered." (Denham, supra, 2 Ca1.3d at 566
(internal quotes and citation omitted); Walker v. Super. Ct. (Residential
Construction Enterprises) (1991) 53 Ca1.3d 257,272,279.)
D. Constitutional Issues Should Be Considered Only If Absolutely
Necessary And There Are No Other Dispositive Grounds
Constitutional issues ordinarily will be resolved on appeal only if
"absolutely necessary" arid not if the case can be decided on any other
ground. > > >
(Palermo v. Stockton Theatres, Inc. (1948) 32 Ca1.2d 53,65; Kollander Const.,
Inc. v. Super. Ct. (Alvarez) (2002) 98 Cal.App.dth 304,314 (disapproved on
other grounds inLe Francois v. Goel (2005) 35 Ca1.4th 1094, 1107, fn. 5 ("We
are constrained to avoid constitutional questions where other grounds are
available and dispositive").)
IV. ARGUMENTS
A. Larkins Stipulated To An Injunction Against Specific Types Of
Defamation To Avoid A Jury Trial On Damages
The Court record shows that Larkins agreed to refrain from publishing
certain statements about Plaintiff on April 6, 2009, over four years ago, as the
Court was waiting to bring up a jury for trial for damages. (1 RT 85; 6 AA
1287.) A Motion for Summary Adjudication on defamation had already been
PAGE 14
granted. (2 AA.401;6 AA 1287; 1 RT 6-14.) Larkins stated on the record,
under questioning by the Court, that she understood and agreed with the terms
of the injunction. (1 RT 91-92.)
Larkins now claims that the Court's interpretation of the injunction was
unconstitutionally broad in violation of her First Amendment right to free
speech. As stated in the People ex rel Bill Lockyer v. RJ Reynolds Tobacco
Company (2004) 116 Cal.App.4th 1f53, "Reynolds's contention that the
sanction award improperly punished Reynolds's First Amendment
communication with adult smokers is also unpersuasive. Reynolds was
sanctioned not for its constitutionally protected communication with adult
smokers but instead for its violation of MSA [settlement agreement],
subsection IH(a) by targeting youth in its tobacco advertising." (Jd. at 1288.)
Here, Larkins is subject to sanctions not for protected First Amendment
speech, but rather has continued making libelous statements
in violation of a
court order to which she stipulated.
In this case, the stipulated injunction enjoined and restrained Larkins
from "continuing to publish or republishing by any method or media, including
but not limited to all electronic data,' websites and webpages, the defamatory
statements alleged in Plaintiffs 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
violations of law, unethical conduct,lack of professional competence or
intimidation." (2 AA 467-468.)
All of the statements set forth above violate the stipulated
injunction
and are libelous. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the eye, which exposes
any person to hatred, contempt, ridicule, or obloquy, or which causes him to
page 15
be shunned or avoided, or which has a tendency to injure him in his
occupation. (Civil Code, § 45 (emphasis added).)
Charges of unethical conduct against attorney may constitute actionable
defamation. (Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1036.) A fair
construction of Civil Code section 46 requires a holding that calling an
attorney a "crook" is equally actionable as slander per se without proof of
special damage. (Albertini v. Schaefer (1979) 97 Ca1.App.3d 822.) Imputing
dishonesty or lack of ethics to an attorney is also actionable under Civil Code
section 46 because of the probability of damage to professional reputation.
(Albertini, supra, 97 Ca1.App.3d at pp. 829-830; citing Katz, supra, 48
CaLApp.3d 1032.) A newspaper publication, involving a cartoon and
imputing hypocrisy and habitual alteration of records by plaintiff, an attorney
at law, was held to be libelous per se. (Newby v. Times-Mirror Co. (1920) 46
Ca1.App. 110, 131.) An attorney must not threaten to present criminal,
administrative, or disciplinary charges to obtain an advantage in a civil
dispute.
(Rules of Professional Conduct, Rule 5-1OO(A).)
The statements made against
Plaintiff allege unprofessional conduct and are therefore libelous.
This Court of Appeal previously stated: "On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with the April 6th
stipulated injunction or the Court's August 7 order enforcing the stipulated
injunction. On remand, the trial court may consider whether to exercise its
statutory and inherent authority to coerce compliance with the April 6 or
August 7 orders and/or to punish Larkins for her failure to comply with said
orders in a manner consistent with the law and the views expressed in this
opinion." (7 AA 1468.)
The trial court did not abuse its discretion when it refused to modify or
dissolve the stipulated injunction. Rather, it evaluated Larkins' lack of
PAGE 16
compliance with the injunction, and the lack of new law or facts which would
warrant modification or dissolution. Based on Larkins history of refusing to
obey court orders,and the status ofthe website at the time, the trial court was
well within its discretion to refuse her request under Code Civ. Proc.
section 533.
B. The Trial Court Correctly Denied Setting The Aside the Default
Judgment Because Larkins' Continuing Violation of the Stipulation
Was Not Mistake, Inadvertence; Surprise or Excusable Neglect.
Courts have affirmed the denial of relief under section 473, subdivision
(b), where intentional misconduct was found to be responsible,at least in part,
for a dismissal or entry of default j udgment. For instance, in Lang v. Hochman
(2000)77 Cal.App.4th 1225 (Lang), the trial court imposed terminating
sanction after numerous violations of discovery orders. (See Id. at 1239-1240.)
Specifically, the trial court found that the attorneys and the client "'willfully,
intentionally, violated the discovery laws, the orders of this Court, [and] the
recommendations ...", of another judge. (Id. at 1241.) On appeal,the appellate
court reasoned that "a party can rely on the mandatory provision of section 473
only if the party is totally innocent of any wrongdoing and the attorney was the
sole cause of the default or dismissal." (Id. at 1248.) Finding substantial
evidence to support the trial court's determination that shared misconduct
caused the default judgment, the court affirmed the denial of mandatory relief
under section 473, subdivision (b). (Id. at 1252.)
In the instant case, Larkins, who has been acting in pro per throughout
these proceedings cannot rely on the mistake, inadvertence surprise, or
excusable neglect of her counsel. All of the occasions of misconduct relied on
by the trial court in imposing terminating sanctions and entering default
judgment were committed by Larkins.
17
As in Lang, the trial court found Larkins' intentional misconduct was
responsible for the resulting striking of her answer and entry of default
judgment. Therefore, section 473 cannot afford her relief.
On more than one occasion Larkins filed lengthy, irrelevant, and
procedurally defective pleadings. > > >
(12 AA 2672-2673.) Larkins failed to remove- and continues to publish- ..
statements that violate the April 6, 2009 stipulated injunction and the trial
court's orders. Accordingly, the trial court appropriately exercised its discretion
to strike Larkins' Answer, and enter default judgment in favor of Stutz.
Moreover, section 473 requires that the moving party's proposed answer
accompany the application for relief. (Code Civ. Proc.,§ 473(b ).) To this date,
Larkins has not filed a proposed answer. > > >
On this basis alone, the trial court's denial of Larkins ' motion to set aside the
default under section 473 was correct.
In short, Larkins has not demonstrated any abuse of discretion by the trial court,
and therefore the judgment should be affirmed.
C. Larkins Motion To Modify Or Dissolve The Original Stipulated
Injunction Presented No New Law Or Facts Under Code Civ. Proc.
§ 533 And The Time To Appeal The Original Order Has Expired
Larkins is correct that an appeal may be taken from an order granting
or dissolving an injunction, or refusing to grant or dissolve an injunction.
(Code Civ. Proc., § 904.1 (a)(6).) That said, however, on appeal from an order
refusing to dissolve an injunction, appellate review is limited to issues newly
arising from the motion to dissolve the injunction and does not extend to issues
that could have been raised on appeal from the injunction itself. (Malatka v.
Helm (2010) 188 Cal.App.4th 1074, 1081-1084 ("Malatka").)
In Malatka, the plaintiff obtained a restraining order against a
neighbor,...(Malatka, supra, 188 Cal.App.4th at 1079-1081.) The neighbor did
not appeal, but later moved to modify the order. (Ibid.) The court modified the
PAGE 18
order, allowing the neighbor to get within 10 rather than 25 feet of the
plaintiff. (Ibid) The neighbor appealed. (Ibid.) "[T]o prevent both
circumvention of time limits for appealing and duplicative appeals from
essentially the same ruling ... on an appeal from an appealable ruling, an
appellate court will not review earlier appealable rulings." (Id. at 1082.)
Thus, courts have allowed an appeal of a modification of an injunction,
but only insofar as it raises issues that could not have been raised in an earlier
appeal. (Id at 1083.) For example, in Chico Feminist Women's Health Center
v. Scully (1989) 208 Cal.App.3d 230 ("Chico"), the appellants sought to
challenge not only the modifications. of the injunction, but the unmodified
parts of the injunction as well. The court concluded, "We perceive no reason
why defendants should be able to use the order of April 25, amending the
injunction, as an artificial springboard from which to launch an appeal that
could have been taken earlier."(Id at 251.)
Similarly, in Malatka, the defendant asserted that an order refusing to
dissolve an injunction is appealable. The court there rejected the obvious
subterfuge, explaining: "Without conflating restrictions on appealability and
reviewability, we conclude that, to the extent the current appeal from an order
implicitly refusing to dissolve a restraining order presents issues that could
have been raised in an appeal from the original restraining order, those issues
are not reviewable in this appeal. On the other hand, to the extent the motion
to dissolve was dependent on new facts and law, such issues are reviewable."
(Malatka, supra, 188 Cal.AppAth at 1084.)
Larkins presented absolutely no new facts or new law in her motion. As
such, she failed to carry her burden showing that there had been amaterial
change in the facts or law upon which the injunction was granted, or that the
ends of justice would be served by the modification or dissolution of the
injunction, as required. (Code Civ. Proc., § 533.)
Here, unlike Malatka, there is no plausible ground for review because the court
did not modify the injunction. It is the very same injunction Larkins could have
appealed almost three years earlier, but did not.
Larkins, in her motion to the trial court under section 533, failed to identify
new facts or law which would support such a modification, nor were any
cited in her subsequent motion under Code Civ. Proc. section l008(a).
> > >
This Court has no discretion to relieve an appellant from the
consequences of delay in filing a notice of appeal. (Chico, supra, 208
Ca1.App.3d at p. 254.) Because appellant did not perfect a timely appeal from
the order granting the original injunction, the court is left without jurisdiction
to review the trial court's original order granting the injunction. (Cal. Rules
of Court, rule 8.104(a), (b); Malatka, supra, 188 Cal.App.4th at 1085-1087.)
D. The Stipulated Injunction Against Defamation Is Constitutional
Because Larkins Knowingly Agreed Not To Defame Stutz And
Agreed To Be So Enjoined
As a preliminary matter, Larkins' citations to cases involving
preliminary and permanent injunctions without agreement by the parties are
unhelpful and inapposite. The California Supreme Court's decision in Balboa
Island Village Inn Inc. (2007) 40 Cal.4th 1141, and this Court's decision in
Evans v. Evans (2008) 162 Cal.App4th 1157, both dealt with injunctions
which were not stipulated to by the parties. Neither case discussed a stipulated
injunction which was agreed upon in front of a judge, in court, with a court
reporter present. In fact, Stutz is not aware of any reported case dealing
squarely with this issue, specifically, in the context of defamation and a
knowing waiver. Generally, however, constitutional rights may be waived.
I. INTRODUCTION
The law firm of Stutz Artiano Shinoff & Holtz, APC ("Stutz") sued
Appellant Maura Larkins for libel based upon statements that Larkins made on
her internet website.
In 2009, the trial court filed a stipulated injunction
prohibiting Larkins from maintaining the defamatory statements on her
website, and barring future publication of statements accusing Stutz and its
lawyers of illegal conduct, violations of law, unethical conduct, lack of
professional competence, or intimidation.
After Larkins failed to comply with the terms of the
stipulated injunction, Stutz moved to sanction Larkins by striking her
answer to Stutz's
complaint. In the meantime, Larkins sought to modify the stipulated
injunction, but the trial court denied Larkins' motion. Larkins has appealed
from that order in a separate concurrent appeal.
Pertinent to this appeal, the trial court granted Stutz's motion to strike
her answer, and then entered a default judgment against Larkins. Now, four
years after Larkins made repeated internet publications violating the stipulated
injunction, Larkins claims that the Superior Court's order entering default
judgment was improper.
The trial court, however, did not err. The trial court's order striking the
answer was a viable sanction against Larkins for her willful and deliberate
refusal to comply with the trial court's orders. Larkins' failure to abide by the
terms of the injunction has wasted the trial court's resources, and caused Stutz
to incur unnecessary expenses. The sanction was absolutely warranted under .
the circumstances, and this Court should affirm the default judgment.
The law firm of Stutz Artiano Shinoff & Holtz, APC ("Stutz") sued
Appellant Maura Larkins for libel based upon statements that Larkins made on
her internet website.
In 2009, the trial court filed a stipulated injunction
prohibiting Larkins from maintaining the defamatory statements on her
website, and barring future publication of statements accusing Stutz and its
lawyers of illegal conduct, violations of law, unethical conduct, lack of
professional competence, or intimidation.
After Larkins failed to comply with the terms of the
stipulated injunction, Stutz moved to sanction Larkins by striking her
answer to Stutz's
complaint. In the meantime, Larkins sought to modify the stipulated
injunction, but the trial court denied Larkins' motion. Larkins has appealed
from that order in a separate concurrent appeal.
Pertinent to this appeal, the trial court granted Stutz's motion to strike
her answer, and then entered a default judgment against Larkins. Now, four
years after Larkins made repeated internet publications violating the stipulated
injunction, Larkins claims that the Superior Court's order entering default
judgment was improper.
The trial court, however, did not err. The trial court's order striking the
answer was a viable sanction against Larkins for her willful and deliberate
refusal to comply with the trial court's orders. Larkins' failure to abide by the
terms of the injunction has wasted the trial court's resources, and caused Stutz
to incur unnecessary expenses. The sanction was absolutely warranted under .
the circumstances, and this Court should affirm the default judgment.
PAGE 3
and all of the individual district employee defendants and costs were awarded.
(6 AA 1386-1388.) She dismissed the remaining claims. (6 AA 1390.)
From the foregoing, it is apparent that because
Larkins could not accept personal responsibility for
her acts which led to her termination, she repeatedly attempted to
sue the school district, her superiors and co-employees, and repeatedly lost. (6
AA 1287.)
By 2005, she had turned her attention to the
Stutz firm because they represented the school district. (6 AA 1287.)
Because
Daniel Shinoff was the. firm member in charge of the school team, she began
directing her ire towards him personally and other firm attorneys with whom
she had contact. (6 AA 1287.)
B. The Complaint And Summary Adjudication
On October 5, 2007, Stutz filed its complaint with the Superior Court
of San Diego County alleging damages fordefamation by Larkins and seeking
punitive damages. (l AA 1-9.) On October 24, 2008, Stutz filed a motion for
summary adjudication. (l AA 155 - 2 AA 268.) On March 26,2009, the trial
court granted Stutz's motion finding that certain statements on Larkins'
website were defamatory. (2 AA 401.)
C. The April 6, 2009 Stipulated Permanent Injunction
Larkins, in order to avoid a jury trial that day on the issue of damages
engaged in negotiations with Stutz. (l RT 89-91.) The parties stipulated to the
Court issuing a permanent injunction with agreed upon terms. (l RT 91-93.)
On April 6, 2009, the trial court issued an Order on a Stipulated Permanent
Injunction (the "Stipulated Injunction") which enjoined and restrained Larkins
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
PAGE 4
lawyers past or present, and future publication of statements
with regard to Plaintiff and its lawyers accusing illegal conduct
or violations of law, unethical conduct, lack of professional
competence or intimidation:
(2 AA 467-468.)
During the April 6, 2009 hearing on the stipulated injunction, Larkins
was admonished by the Court as to rights she was giving up. > > >
I HAVE BEFORE ME A DOCUMENT
ENTITLED, "ORDER ON PERMANENT
INJUNCTION." IT HAS BEEN
SUBMITTED TO THE COURT FOR MY
SIGNATURE. IT IS MY
UNDERSTANDING THAT THE
PARTIES AGREE ON THIS. IS THAT
CORRECT, COUNSEL?
YES, YOUR HONOR. THIS IS A
S TIPULA TED PERMANENT
INJUNCTION.
DID YOU READ IT?
YES I DID.
DID YOU UNDERSTAND IT?
YES, I DID.
DO YOU HAVE ANY QUESTIONS
ABOUT ANYTHING?
NO, I DON'T.
HAVE YOU HAD ENOUGH TIME TO
LOOK AT THIS?
OH, YES.
YOU UNDERSTAND IF YOU
WANTED YOU COULD GO TAKE IT
TO A LAWYER, BUT YOU'VE
CHOSEN TO REPRESENT YOURSELF.
IS THAT WHAT YOU WANT TO
CONTINUE TO DO?
YES.
(l RT91-94.)
The following exchange occurred:
THE COURT: OKAY. IS THIS AGREEABLE TO YOU?
IT MOST CERTAINLY IS.
IS THIS WHAT YOU WANT TO DO?
THIS IS WHA T I WANT TO DO.
(l RT 91-92.) The Court then went on to explain:
THE COURT: I'M GOING TO GO AHEAD AND SIGN
THIS. ANYTHING 13EFORE I SIGN IT? ANYBODY WANT
TO SAY ANYTHING? I DIDN'T ASK THOSE QUESTIONS
BECAUSE I SAW ANYTHING IN HERE THAT IS
QUESTIONABLE. THE REASON I ASK YOU THOSE
QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S
GIVEN TO THE COURT I ASK THE SAME QUESTIONS.
THAT IS TO PREVENT SOMEBODY FROM COMING
BACK LATER AND SAYING, NO, I DIDN'T REALLY
MEAN TO SAY WtIAT I SAID OR DO W1!AT I DID. THAT
REMEDY IS NOT GOING TO BE AVAILABLE, BECAUSE
WE GO THROUGH THIS EXERCISE IN MAKING SURE
THAT EVERYBODY UNDERSTANDS WHAT THEY'RE
DOING, ESPECIALL Y IF YOU DON'T HAVE A LAWYER
HERE. I WANT TO MAKE SURE YOU READ IT,
UNDERSTAND IT,AND DON'T HAVE ANY QUESTIONS.
(1 RT 92-93.)
Pursuant to standard settlement procedure the Court questioned
Larkins regarding the terms of the stipulation. (l RT 91-93.) Larkins stated
that she understood the stipulated injunction's terms and agreed to be bound
thereby. (1 RT 91-92,94.) Then Larkins made a knowing waiver of the right
to seek counsel and stated she wished to continue in pro per on the record,
before the Court signed the stipulated permanent injunction. (l RT 91-92.)
Larkins subsequently failed to remove the statements listed in Stutz's
First Amended Complaint and continued to publish defamatory falsehoods in
violation of the injunction. (3 AA 507-543.) Stutz sent multiple "meet-andconfer"
letters addressing these violations in detail. (3 AA 545-558.) Stutz
then filed a motion to enforce the stipulated injunction with evidence of the
violations and the attempts to meet and confer. (3 AA 480-562.)
On August 7, 2009, the Court confirmed its tentative ruling after
briefing by the parties and argument; and granted Stutz's Motion to Enforce
Permanent Injunction against Larkins, ordering Larkins to remove the subject
statements within 48 hours. (3 AA 655a.) This minute order was followed by
a formal order dated September 18,2009. (3 AA 655b-655c.)
D. The December 11, 2009 "Expanded Injunction"
Larkins, again, did not remove all of the statements held defamatory by
the court, and in some cases she only slightly modified her statements in an
attempt to skirt the trial court's ruling. (3 AA 656-666.) Accordingly, Stutz
filed a motion to strike Larkins' answer. (3 AA 656-666.) On December 11,
2009, the trial court denied the motion, but expanded the original Stipulated
Injunction to a blanket prohibition against mentioning Stutz anywhere on
Larkins' website (the "Expanded Injunction"). (4 AA 785-787.)
On March 18, 2010, Larkins appealed the Expanded Injunction.
(5 AA 1032.) However, Larkins did not appeal the March 10,2010 contempt
and sanctions order. (5 AA 1031.)
E. Larkins' Appeal of the December 11,2009 "Expanded Injunction"
On August 5, 2011, this Court of Appeal issued an opinion on Larkins'
appeal of the Expanded Injunction. (5 AA 1021-1042.) While this Court
reversed and remanded the Expanded Injunction due to constitutional
concerns, it stated that the trial court may consider other methods to compel
Larkins' compliance with the earlier Stipulated Injunction. (5 AA 1041.)
Specifically, this Court stated in its opinion:
and all of the individual district employee defendants and costs were awarded.
(6 AA 1386-1388.) She dismissed the remaining claims. (6 AA 1390.)
From the foregoing, it is apparent that because
Larkins could not accept personal responsibility for
her acts which led to her termination, she repeatedly attempted to
sue the school district, her superiors and co-employees, and repeatedly lost. (6
AA 1287.)
By 2005, she had turned her attention to the
Stutz firm because they represented the school district. (6 AA 1287.)
Because
Daniel Shinoff was the. firm member in charge of the school team, she began
directing her ire towards him personally and other firm attorneys with whom
she had contact. (6 AA 1287.)
B. The Complaint And Summary Adjudication
On October 5, 2007, Stutz filed its complaint with the Superior Court
of San Diego County alleging damages fordefamation by Larkins and seeking
punitive damages. (l AA 1-9.) On October 24, 2008, Stutz filed a motion for
summary adjudication. (l AA 155 - 2 AA 268.) On March 26,2009, the trial
court granted Stutz's motion finding that certain statements on Larkins'
website were defamatory. (2 AA 401.)
C. The April 6, 2009 Stipulated Permanent Injunction
Larkins, in order to avoid a jury trial that day on the issue of damages
engaged in negotiations with Stutz. (l RT 89-91.) The parties stipulated to the
Court issuing a permanent injunction with agreed upon terms. (l RT 91-93.)
On April 6, 2009, the trial court issued an Order on a Stipulated Permanent
Injunction (the "Stipulated Injunction") which enjoined and restrained Larkins
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
PAGE 4
lawyers past or present, and future publication of statements
with regard to Plaintiff and its lawyers accusing illegal conduct
or violations of law, unethical conduct, lack of professional
competence or intimidation:
(2 AA 467-468.)
During the April 6, 2009 hearing on the stipulated injunction, Larkins
was admonished by the Court as to rights she was giving up. > > >
I HAVE BEFORE ME A DOCUMENT
ENTITLED, "ORDER ON PERMANENT
INJUNCTION." IT HAS BEEN
SUBMITTED TO THE COURT FOR MY
SIGNATURE. IT IS MY
UNDERSTANDING THAT THE
PARTIES AGREE ON THIS. IS THAT
CORRECT, COUNSEL?
YES, YOUR HONOR. THIS IS A
S TIPULA TED PERMANENT
INJUNCTION.
DID YOU READ IT?
YES I DID.
DID YOU UNDERSTAND IT?
YES, I DID.
DO YOU HAVE ANY QUESTIONS
ABOUT ANYTHING?
NO, I DON'T.
HAVE YOU HAD ENOUGH TIME TO
LOOK AT THIS?
OH, YES.
YOU UNDERSTAND IF YOU
WANTED YOU COULD GO TAKE IT
TO A LAWYER, BUT YOU'VE
CHOSEN TO REPRESENT YOURSELF.
IS THAT WHAT YOU WANT TO
CONTINUE TO DO?
YES.
(l RT91-94.)
The following exchange occurred:
THE COURT: OKAY. IS THIS AGREEABLE TO YOU?
IT MOST CERTAINLY IS.
IS THIS WHAT YOU WANT TO DO?
THIS IS WHA T I WANT TO DO.
(l RT 91-92.) The Court then went on to explain:
THE COURT: I'M GOING TO GO AHEAD AND SIGN
THIS. ANYTHING 13EFORE I SIGN IT? ANYBODY WANT
TO SAY ANYTHING? I DIDN'T ASK THOSE QUESTIONS
BECAUSE I SAW ANYTHING IN HERE THAT IS
QUESTIONABLE. THE REASON I ASK YOU THOSE
QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S
GIVEN TO THE COURT I ASK THE SAME QUESTIONS.
THAT IS TO PREVENT SOMEBODY FROM COMING
BACK LATER AND SAYING, NO, I DIDN'T REALLY
MEAN TO SAY WtIAT I SAID OR DO W1!AT I DID. THAT
REMEDY IS NOT GOING TO BE AVAILABLE, BECAUSE
WE GO THROUGH THIS EXERCISE IN MAKING SURE
THAT EVERYBODY UNDERSTANDS WHAT THEY'RE
DOING, ESPECIALL Y IF YOU DON'T HAVE A LAWYER
HERE. I WANT TO MAKE SURE YOU READ IT,
UNDERSTAND IT,AND DON'T HAVE ANY QUESTIONS.
(1 RT 92-93.)
Pursuant to standard settlement procedure the Court questioned
Larkins regarding the terms of the stipulation. (l RT 91-93.) Larkins stated
that she understood the stipulated injunction's terms and agreed to be bound
thereby. (1 RT 91-92,94.) Then Larkins made a knowing waiver of the right
to seek counsel and stated she wished to continue in pro per on the record,
before the Court signed the stipulated permanent injunction. (l RT 91-92.)
Larkins subsequently failed to remove the statements listed in Stutz's
First Amended Complaint and continued to publish defamatory falsehoods in
violation of the injunction. (3 AA 507-543.) Stutz sent multiple "meet-andconfer"
letters addressing these violations in detail. (3 AA 545-558.) Stutz
then filed a motion to enforce the stipulated injunction with evidence of the
violations and the attempts to meet and confer. (3 AA 480-562.)
On August 7, 2009, the Court confirmed its tentative ruling after
briefing by the parties and argument; and granted Stutz's Motion to Enforce
Permanent Injunction against Larkins, ordering Larkins to remove the subject
statements within 48 hours. (3 AA 655a.) This minute order was followed by
a formal order dated September 18,2009. (3 AA 655b-655c.)
D. The December 11, 2009 "Expanded Injunction"
Larkins, again, did not remove all of the statements held defamatory by
the court, and in some cases she only slightly modified her statements in an
attempt to skirt the trial court's ruling. (3 AA 656-666.) Accordingly, Stutz
filed a motion to strike Larkins' answer. (3 AA 656-666.) On December 11,
2009, the trial court denied the motion, but expanded the original Stipulated
Injunction to a blanket prohibition against mentioning Stutz anywhere on
Larkins' website (the "Expanded Injunction"). (4 AA 785-787.)
On March 18, 2010, Larkins appealed the Expanded Injunction.
(5 AA 1032.) However, Larkins did not appeal the March 10,2010 contempt
and sanctions order. (5 AA 1031.)
E. Larkins' Appeal of the December 11,2009 "Expanded Injunction"
On August 5, 2011, this Court of Appeal issued an opinion on Larkins'
appeal of the Expanded Injunction. (5 AA 1021-1042.) While this Court
reversed and remanded the Expanded Injunction due to constitutional
concerns, it stated that the trial court may consider other methods to compel
Larkins' compliance with the earlier Stipulated Injunction. (5 AA 1041.)
Specifically, this Court stated in its opinion:
PAGE 2
II. FACTS AND PROCEDURAL HISTORY
A. Prior Proceedings
Maura Larkins has a pattern of willful failure to comply with the law,
resulting in terminating sanctions. (6 AA 1286,1380-1382, 1384,
1386-1388,
1390; 9 AA 2034-2040.) In fact, terminating sanctions have now been issued
four times, and she has voluntarily dismissed one other case. (Id.)
Larkins was a teacher in the Chula Vista Elementary School District.
(6 AA 1336-1337.) She was terminated in 2001. (6 AA 1340; 6 AA 1376)
Larkins sued the school district's assistant principal, and fellow teachers in
Larkins v. Werlin, et al. (Case No. GIC 781970). (6 AA 1336-1378.) She
alleged libel and slander showing she knew what these terms mean.
(6 AA 1336-1378.) On December 3, 2004, Judge Nevitt granted terminating
sanctions for failure to comply with litigation requirements. (6 AA 1380-
1382.)
In January 2004, Larkins sued the lawyer who represented her in the
employment dismissal hearing for alleged malpractice in Larkins v. Schulman,
Case No. GIC 823858. (6 AA 1287,1384.) Larkins subpoenaed many district ,
employees for deposition, and the court granted a motion to quash those
subpoenas and a protective order in August 2004. (6 AA 1287.) Later, the
legal malpractice case was dismissed by the Court as a "terminating sanction".
(6 AA 1384.)
In April 2004, Larkins filed another case in San Diego Superior Court
related to her employment with the District called Larkins v. California
Teachers Association, et al., Case No. GIC 825879. (6 AA 1287.) The Court
consolidated the Larkins v. Werlin and Larkins v. CTA cases. (6 AA 1287.)
In January 2005,judgment was entered against Larkins in favor of the District
II. FACTS AND PROCEDURAL HISTORY
A. Prior Proceedings
Maura Larkins has a pattern of willful failure to comply with the law,
resulting in terminating sanctions. (6 AA 1286,1380-1382, 1384,
1386-1388,
1390; 9 AA 2034-2040.) In fact, terminating sanctions have now been issued
four times, and she has voluntarily dismissed one other case. (Id.)
Larkins was a teacher in the Chula Vista Elementary School District.
(6 AA 1336-1337.) She was terminated in 2001. (6 AA 1340; 6 AA 1376)
Larkins sued the school district's assistant principal, and fellow teachers in
Larkins v. Werlin, et al. (Case No. GIC 781970). (6 AA 1336-1378.) She
alleged libel and slander showing she knew what these terms mean.
(6 AA 1336-1378.) On December 3, 2004, Judge Nevitt granted terminating
sanctions for failure to comply with litigation requirements. (6 AA 1380-
1382.)
In January 2004, Larkins sued the lawyer who represented her in the
employment dismissal hearing for alleged malpractice in Larkins v. Schulman,
Case No. GIC 823858. (6 AA 1287,1384.) Larkins subpoenaed many district ,
employees for deposition, and the court granted a motion to quash those
subpoenas and a protective order in August 2004. (6 AA 1287.) Later, the
legal malpractice case was dismissed by the Court as a "terminating sanction".
(6 AA 1384.)
In April 2004, Larkins filed another case in San Diego Superior Court
related to her employment with the District called Larkins v. California
Teachers Association, et al., Case No. GIC 825879. (6 AA 1287.) The Court
consolidated the Larkins v. Werlin and Larkins v. CTA cases. (6 AA 1287.)
In January 2005,judgment was entered against Larkins in favor of the District
| . |
Stutz Artiano Shinoff & Holtz Response
to Maura Larkins' Sept. 6, 2012 Appeal
re April 6, 2009 injunction
to Maura Larkins' Sept. 6, 2012 Appeal
re April 6, 2009 injunction
Stutz response appeal 4
TABLE OF CONTENTS
I. INTRODUCTION
II. FACTS AND PROCEDURAL HISTORY 1
A Prior Proceedings 1
B The Complaint And Summary Adjudication 3
C The April 6, 2009 Stipulated Permanent Injunction3
D The December 11, 2009 "Expanded Injunction" 0 0 0 0 0 0 0 0 • 0 6
E Larkins' Appeal of the December 11, 2009
"Expan deead mTO, Juncuo0 n " 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0
•••••••••••••
Fo, Stutz's Motion to Strike Larkins' Answer. 0 0 0 0 • 0 0 0 0 •• 0 0 • 7
Go Larkins' Motion to Modify or Dissolve the Stipulated
Permanent Injunction 0 •• 0 •• 0 0 0 ••••• 0 •• 0 0 0 0 0 0 •• 0 ••••• 7
H. The Court Defers Striking Larkins' Answer And Allows
Further Briefing Regarding Compliance .... 0 • 0 0 •• 0 ••••• 7
I. Larkins' Motion For Reconsideration Of The Denial
Of Her Motion To Modify Or Dissolve The Injunction 0000 8
J. The Court Strikes Larkins' Answer, And The Instant
Appeal ... 00000 •• 0 0 0 0 • 0 0 0 0 0 • 0 0 0 • 0 • 000.0000 •• 000. 009
III. STANDARD OF REVIEW 00 •• 000000.0000000 •• 000.0000.000 10
Ao Limited Review On Appeal From Order Denying
Motion to Dissolve Injunction 0 0 0 0 ••• 0 " 0 • 0 0 0 0 • 0 • 0 • 0 0 10
B. Abuse of Discretion Standard .000000.000 0 0 0 0 ••••• 0 0 • 10
Co Appellant's Burden to Prove "a clear case of abuse"
A-d "- ,..". '..c ~- ..L" " -r 1"\ n a rmscarnage 01 Jusllce 0 0 0 • 0 0 0 •• 0
0 0 • 0 • 0 0 • 0 •••• , 1V
,
11
D. Constitutional Issues Should Be Considered Only If
Absolutely Necessary And There Are No Other Dispositive
Grounds 11
IV. ARGUMENTS 11
A. Larkins Stipulated To An Injunction Against Specific
Types Of Defamation To Avoid A Jury Trial On Damages 11
B. Larkins' Notice of Appeal is Untimely Because An
Invalid Motion For Reconsideration Does Not Extend
Time To Appeal 14
1. Larkins' June 6, 2012 Motion For Reconsideration
Was Procedurally Defective And Invalid 14
2. Larkins' Invalid Motion For Reconsideration
Did Not Extend The Time To File A Notice Of
Appeal Under Cal. Rules of Court 8.104
and 8.I08(e) 16
C. Larkins Motion To Modify Or Dissolve The Original
Stipulated Injunction Presented No New Law Or Facts
Under Code Civ. Proc. § 533 And The Time To Appeal
The Original Order Has Expired . . . . . . . . . . . . . . . . . . . . . 18
D. The Stipulated Injunction Against Defamation Is
Constitutional Because Larkins Knowingly Agreed
Not To Defame Stutz And Agreed To Be So Enjoined .... 21
1. A Knowing Waiver Of Constitutional Rights Is
Valid 21
2. The Stipulated Permanent Injunction Was
Mutually Agreed Upon And Discussed' On the
Record With Judge Hayes 22
"
••
III
3. This Court's Prior Ruling Indicated The Injunction
Was Valid, And The Trial Court Could
Coerce Defendant's Compliance 23
V. CONCLUSION 24
STUTZ ARTIANO SHINOFF & HOLTZ, A.P.c.
Ray 1. Artiano, Esq. (State Bar No. 88916)
James F. Holtz, Esq. (State Bar No.95064)
2488 Historic Decatur Road, Suite 200
San Diego, CA 92106
Tel: (619) 232-3122; Fax: (619) 232-3264
Attorneys for
Plaintiff/Respondent
STUTZ ARTIANO
SHINOFF & HOLTZ, APC
4 Civil No. D062738
IN THE COURT OF APPEAL OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF &
HOLTZ, APC.,
Superior Court Case No.
'
I 37-2007-00076218-CU-DFCTL
I
Ct. of App. No. D062738
Plaintiff/Respondent,
v.
Defendant/Appellant
MAURALARKINS,
Appeal from an Order of the Superior Court of California
In and For the County of San Diego
Honorable Judge Judith F. Hayes
RESPONDENT'S BRIEF
,
,
STUTZARTIANOSI-HNOFF & HOLTZ, A.P.C.
Ray J.Artiano, Esq. (State Bar No. 88916)
James F. Holtz, Esq. (State Bar No.95064»
2488 Historic: Decatur Road, Suite 200
San Diego, CA '921 06 .
Tel: (619) 232-3122; Fax: (619) 232-3264
Attorneys for
Plaintiff/Respondent
STUTZARTIANO
SHINOFF & HOLTZ, APC
4 Civil No. D062738
IN THE COURT OF APPEAL OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
SllJTZ ARTIANO SHINOFF &
HOL TZ, APC.,
Ct. of App. No. D062738
Plaintiff/Respondent,
, I Superior Court Case No. 37-Z007-00076Z1 S-CU-DFv.
CTL
l\iAUIV\ LARKINS,
Defendant/Appellant
Appeal from an Order of the Superior Court of California
Inand For the County of San Diego
Honorable Judge Judith F. Hayes
RESPONDENT'S BRIEF
TO BE FILED IN THE COURT OF APPEAL
APP-008
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
Court of Appeal Case Number.
D062738
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar
number. and address): Superior Court Case Number:
James F. Holtz (#95064)
- Stutz Artiano Shinoff &Holtz, APC 37-2007-0007621S-CU-DF-CTL
2488 Historic Decatur, Suite 200 FOR COURT USE ONL Y
San Diego, California 92106
~-6I.HtGTAp~i!1 Fourth lJistriC'( TELEPHONE NO .. 619-232~3122
FAX NO (Optional) 619-232-3264
E-MAIL ADDRESS (Optiona!): F i l E 0 ATTORNEY FOR (Name): Stutz
Artiano Shinoff & Holtz
APPELLANTIPETITIONER: Maura Larkins APR 17 201.1
"St:,Pl1eri M. ~~e"rlYC•,ler~
RESPONDENT/REAL pARTY IN INTEREST: Stutz Artiano Shinoff &
Holtz, APC ..~~-.. - . -DlTI5trr.-r-~-"'"-'-•-" ~~ ~~. '!'
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one). D INITIAL CERTIFICATE [ZJ SUPPLEMENTAL
CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing thls.
forrn, You may use this form for the initial
certificate in an appeai when you me your brief or a prebriefing motion,
application, or opposition to such a
motion or application in the Court of Appeal, and when you file a
petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you iearn of
changed or additional information that must
be disclosed,
1. This form is being submitted on behalf of the following party (name):
Stutz Artiano Shinoff & Holtz
2, a. LJ There are no interested entities or persons thai must be listed
in this certificate under rule 8.208.
b. CZJ Interested entities or persons required to be listed under rule
8.208 are as follows:
Full name of interested
entity or person
Nature of interest
(Explain):
(1) Ray Artiano
(2) James Holtz
(3) Daniel Shinoff
Shareholder
Shareholder
Shareholder
(4)
(5)
DContinued on attachment 2.
The underSigned certifies that the above-listed persons or entities
(corporations, partnerships, firms, or any other
association, but not including government entities or their agencies)
have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in
the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as
defined in rule 8.208(e)(2).
=orm Approved for Optional Use
Judicial Council or ceercrnre
APP-008 (Rev. January 1,20091
CERTIFICATE OF INTERESTED ENTItiES OR PERSONS
Date: 04116/2013
Ijames F. Holtz
(TYPE OR PRINT NAME)
Page 1 of1
CaL Rules of Court, rules 8.208.-8.488
wwW.courlinlo.ca.gov
,
BY HAND-DELIVERY by delivery of a copy of said document(s)
to the following addressee(s) as follows:
STUTZ ARTIANO SHINOFF
& HOLTZ. A.P.C.
Tames F. Holtz, Esq.
2488 Historic Decatur Road, Suite 200
San Diego, CA 92106
Client:
Plaintiff/Respondent
STUTZ ARTIANO
SHINOFF & HOLTZ,
APC
Stutz Artiano ShinoJf& Holtz, APe v. Maura Larkins, et al.
Fourth District Case No. D062738
San Diego Superior Court Case No. 37-2007-00076218":CU-DF-CTL
PROOF OF SERVICE
. I am and was at all times herein mentioned over the age of 18 years
and
not a party to the action in which this service is made. At all times
herein
mentioned I have been employed-in the County of San Diego in the
office of
a member of the bar ofthis court at whose direction the service was
made. My
business address is 2488 Historic Decatur Road, Suite 200, San Diego,
California 92106-6113.
On April 17, 2013, I served the following document(s):
RESPONDENT'S MOTION TO CONSOLIDATE APPEALS
AND SUPPORTING MEMORANDUM; REQUEST FOR
EXTENSION OF TIME TO FILE RESPONDENrS BRIEF
IN THE ALTERNATIVE;
DECLARATION OF COUNSEL IN SUPPORT;
CERTIFICATE OF INTERESTED ENTITIES OR
PERSONSSUPPLEMENTAL
CERTIFICATE
[6). BY MAIL by depositing in the United States Postal Service mail box
at 2488 Historic Decatur Road, Suite 200, San Diego, California 92106,
a true copy thereof in a sealed envelope with postage thereon fully
prepaid and addressed as follows:
Maura Larkins
1935 Autocross Court
El Cajon, CA92019
mauralarkins@gmail.com
San Diego Superior Court
Appeals Division
220 W. Broadway, Rm. 3005
San Diego, CA 92101
Defendant In Pro Per
. I ?eclare under per:.altx of perjury under the laws of the State of
California that the foregomg IS true and correct. /1 0
Executed on April 17, 2013 at San Diego, California, ,J.," OJ '.G-,rr .
I" I'LU
JE:NIFER WOLBERdif
TABLE OF CONTENTS
I. INTRODUCTION 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1
II. FACTS AND PROCEDURAL HISTORY 0000000000000000000000 1
Ao Prior Proceedings 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 1
Bo The Complaint And Summary Adjudication 0 0 0 0 0 0 0 0 0 0 0 0 0
3
Co The April 6, 2009 Stipulated Permanent Injunction 0 0 0 0 0 0 0 3
Do The December 11, 2009 "Expanded Injunction" 0 0 0 0 0 0 0 0 • 0 6
Eo Larkins' Appeal of the December 11, 2009
"Expan deead mTO, Juncuo0 n " 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0
•••••••••••••
Fo, Stutz's Motion to Strike Larkins' Answer. 0 0 0 0 • 0 0 0 0 •• 0 0 • 7
Go Larkins' Motion to Modify or Dissolve the Stipulated
Permanent Injunction 0 •• 0 •• 0 0 0 ••••• 0 •• 0 0 0 0 0 0 •• 0 ••••• 7
H. The Court Defers Striking Larkins' Answer And Allows
Further Briefing Regarding Compliance .... 0 • 0 0 •• 0 ••••• 7
I. Larkins' Motion For Reconsideration Of The Denial
Of Her Motion To Modify Or Dissolve The Injunction 0000 8
J. The Court Strikes Larkins' Answer, And The Instant
Appeal ... 00000 •• 0 0 0 0 • 0 0 0 0 0 • 0 0 0 • 0 • 000.0000 •• 000. 009
III. STANDARD OF REVIEW 00 •• 000000.0000000 •• 000.0000.000 10
Ao Limited Review On Appeal From Order Denying
Motion to Dissolve Injunction 0 0 0 0 ••• 0 " 0 • 0 0 0 0 • 0 • 0 • 0 0 10
B. Abuse of Discretion Standard .000000.000 0 0 0 0 ••••• 0 0 • 10
Co Appellant's Burden to Prove "a clear case of abuse"
A-d "- ,..". '..c ~- ..L" " -r 1"\ n a rmscarnage 01 Jusllce 0 0 0 • 0 0 0 •• 0
0 0 • 0 • 0 0 • 0 •••• , 1V
,
11
D. Constitutional Issues Should Be Considered Only If
Absolutely Necessary And There Are No Other Dispositive
Grounds 11
IV. ARGUMENTS 11
A. Larkins Stipulated To An Injunction Against Specific
Types Of Defamation To Avoid A Jury Trial On Damages 11
B. Larkins' Notice of Appeal is Untimely Because An
Invalid Motion For Reconsideration Does Not Extend
Time To Appeal 14
1. Larkins' June 6, 2012 Motion For Reconsideration
Was Procedurally Defective And Invalid 14
2. Larkins' Invalid Motion For Reconsideration
Did Not Extend The Time To File A Notice Of
Appeal Under Cal. Rules of Court 8.104
and 8.I08(e) 16
C. Larkins Motion To Modify Or Dissolve The Original
Stipulated Injunction Presented No New Law Or Facts
Under Code Civ. Proc. § 533 And The Time To Appeal
The Original Order Has Expired . . . . . . . . . . . . . . . . . . . . . 18
D. The Stipulated Injunction Against Defamation Is
Constitutional Because Larkins Knowingly Agreed
Not To Defame Stutz And Agreed To Be So Enjoined .... 21
1. A Knowing Waiver Of Constitutional Rights Is
Valid 21
2. The Stipulated Permanent Injunction Was
Mutually Agreed Upon And Discussed' On the
Record With Judge Hayes 22
"
••
III
3. This Court's Prior Ruling Indicated The Injunction
Was Valid, And The Trial Court Could
Coerce Defendant's Compliance 23
V. CONCLUSION 24
,
,
IV
TABLE OF AUTHORITIES
State Cases
Albertini v. Schaefer (1979)
97 Ca1.App.3d 822 13
Balboa Island Village Inn Inc. (2007)
40 Ca1.4th 1141 ; 21
Blank v. Kirwan (1985)
39 Ca1.3d 311 11
Branner v. Regents of University of California (2009)
. 175 Cal.App.4th 1043 14,15,17,18
Chico Feminist Women's Health Center v. Scully (1989)
208 Cal.App.Jd 230 19,20
Denham v. Super. Ct. (Marsh & Kidder) (1970)
2 Ca1.3d 557 11
Estate a/Hanley (1943)
23 Ca1.2d 120 17
Evans v. Evans (2008)
162 CaLApp4th 1157 21
Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359 10
ITT Telecom Products Corp. v. Dooley(l989)
214 Cal.App.3d 307 21
Katz v. Rosen (1975)
48 Cal.App.3d 1032 13
Kollander Const., Inc. v. Super. Ct. (Alvarez) (2002)
98 Cal.App.4th 304 11
Le Francois v. Goel (2005)
35 Ca1.4th 1094 11
Malatka v. Helm (2010)
188 Cal.App.4th 1074 10, 18-20
Newby v. Times-Mirror Co. (1920)
46 Cal.App. 110 13
North Beverly Park Homeowners Ass 'n v. Bisno (2007)
147Cal.AppAth 762 10
v
Palermo v. Stockton Theatres, Inc. (1948)
32 Ca1.2d 53 11
People ex reI Bill Lockyer v. RJ Reynolds Tobacco Company (2004)
116 Cal.App.4th 1253 12
Sanchez v. County of San Bernardino (2009)
176 Cal.App.4 th 516 . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 22
Silverbrand v. County of Los Angeles (2009)
46 Ca1.4th 106 18
Strathvale Holdings v. E.B.H (2005)
126 Cal.App.4th 1241 16
Walker v. Super. Ct. (Residential Construction Enterprises) (1991)
53 Ca1.3d 257 11
Walton v.Mueller (2009)
180 Cal.App.4thl61 16
Federal Case
Charter Communications, Inc. v. County of Santa Cruz (9th Cir.2002)
304 F.3d 927 21
Civil Code section 45 13
Code of Civil Procedure section 533 14, 20
Code of Civil Procedure section 904.1 18
Code of Civil Procedure section 1008 . . . . . . . . . . .. . . . . . . . . 9, 14-
17, 20
Rules
Rules of Court, Rule 8.104 16,17,20
Rules of Court., Rule 8.108 14,16,17
Rules of Professional Conduct, Rule 5-1OO(A) 13
VI
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs
Ch. 2-B ~ 2:103.l 10
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs
Ch. 3-C ,-r,-r 3:92-94 17
1
I. INTRODUCTION
Appellant Maura Larkins has appealed the trial court's order denying
her motion to modify or dissolve a stipulated injunction. This stipulated
injunction between Larkins and Respondent Stutz Artiano Shinoff &
Holtz,
APC ("Stutz") was entered on the record in open court. Despite that
Larkins
voluntarily agreed to the injunction and partial settlement to avoid a
jury trial
on damages over three years before the instant appeal, Larkins
nevertheless
takes issue with the trial court's ruling.
Larkins has a long history of litigation misconduct and violations of
court orders. The court record shows that Larkins agreed to refrain
from
publishing certain statements about Stutz on Aprii 6, 2009, as the
Court was
waiting to bring up a jury for a trial for damages. A motion for summary
adjudication on defamation had already been granted. Larkins stated
on the
record, under questioning by the Court, that she understood and
agreed with
the terms of the iniunction. -- --.J
She now claims that the Superior Court's interpretation of the
injunction was unconstitutionally broad, in violation ofher right to free
speech.
However, Larkins is subject to a agreement tobe enjoined from specific
types
of defamatory statements, which, she entered into voluntarily. She has
not been
forcibly enjoined from protected speech. Regardless, she continued to
make
libelous statements in violation of a court order to which she stipulated.
II. FACTS AND PROCEDURAL HISTORY
A. Prior Proceedings
Maura Larkins has a pattern of willful failure to comply with the law,
resulting in terminating sanctions. (6 AA 1286, 1380-1382,1384, 1386-
1388,
1390; 9 AA 2034-2040.) In fact, terminating sanctions have now been
issued
four times, and she has voluntarily dismissed one other case. (Jd)
Larkins was a teacher in the Chula Vista Elementary School District.
(6 AA 1336-1337.) She was terminated in 2001. (6 AA 1340; 6 AA
1376)
Larkins sued the school district's assistant principal, and fellow
teachers in
Larkins v. Werlin, et al. (Case No. GIC 781970). (6 Aft,. 1336-1378.)
She
alleged libel and slander showing she knew what these terms mean.
(6 AA 1336-1378.) On December 3,2004, Judge Nevitt granted
terminating
sanctions for failure to comply with litigation requirements. (6 AA 1380-
1382.)
In January 2004, Larkins sued the lawyer who represented her in the
employment dismissal hearing for alleged malpractice in Larkins v.
Schulman,
Case No. GIC 823858. (6 AA 1287, 1384.) Larkins subpoenaed many
district
employees for deposition, and the court granted a motion to quash
those
subpoenas and a protective order in August 2004. (6 AA 1287.) Later,
the legal
malpractice case was dismissed by the Court as a "terminating
sanction".
(6 A_A 1384.)
In April 2004, Larkins filed another case in San Diego Superior Court
related to her employment with .the District called Larkins v. California
Teachers Association, et al., Case No. GIe 825879. (6 AA 1287.) The
Court
consolidated the Larkins v. Werlin and Larkins v. CTA cases. (6 AA
1287.) In
January 2005, judgment was entered against Larkins in favor of the
District
and all of the individual district employee defendants and costs were
awarded.
(6 AA 1386-1388.) She dismissed the remaining claims. (6 AA 1390.)
From the foregoing, it is apparent that because Larkins could not
accept
personal responsibility for her acts which led to her termination, she
first
attempted to sue the school district, her superiors and co-employees
repeatedly,
and repeatedly lost. (6 AA 1287.) By 2005, she had turned her
attention to the
Stutz firm because they represented the school district. (6 AA 1287.)
Because
2
3
Daniel Shinoffwas the firm member in charge of the school team, she
began
directing her ire towards him personally and other firm attorneys with
whom
she had contact. (6 AA 1287.)
B. The Complaint And Summary Adjudication
On October 5, 2007, Stutz filed its complaint with the Superior Court
of San Diego County alleging damages pursuant to defamation by
Larkins and
seeking punitive damages. (1 AA 1-9.) On October 24, 2008, Stutz
filed a
motion for summary adjudication. (1 AA 155 - 2 AA 268.) On March 26,
2009, the trial court granted Stutz's motion for summary adjudication;
which;'
thereby adjudicated and declared that certain statements on Larkins's
website
were defamatory. (2 AA 401.)
C. The April 6, 2009 Stipulated Permanent Injunction
Larkins, in order to avoid a jury trial on the issue of damages engaged
I.n negoti.a.n..ons WIth Stutz. ("1 RT 89 Q1 '\ n h . . 1 d +l r rt =» .•.•J
Both parties stipulate to "he '-'oU...•
issuing a permanent injunction with negotiated and agreed upon terms,
(1 RT 91-93.) On Apri16, 2009, the trial court issued an Order on a
Stipulated
Permanent Injunction (the "Stipulated Injunction") against Larkins and
in
favor of Stutz. (2 AA 467-468.)
The Stipulated Injunction enjoined and restrained Larkins 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 violations of law, unethical conduct, lack of professional
competence or intimidation.
(2 AA 467-468.)
4
During the April 6, 2009 hearing on the stipulated injunction, Larkins
was admonished by the Court as to rights she was giving up. (1 RT 91-
94.)
The following exchange occurred:
I HAVE BEFORE ME A DOCUMENT
ENTITLED, "ORDER ON PERMANENT
INJUNCTION." IT HAS BEEN
SUBMITTED TO THE COURTFORMY
SIGNATURE. IT IS MY
UNDERSTANDING THAT THE
PARTIES AGREE ON THIS. IS THAT
CORRECT, COUNSEL?
YES, YOUR HONOR. THIS .IS A
S TIPULA TED PERMANENT
INJITi\fCTION.
THE COURT: DID YOU READ IT?
MS. LARKINS: YES I DID.
THE COURT:
MR. HOLTZ:
THE COURT: DID YOU lJNDERSTAt-ID IT?
MS. LARKINS: YES, I DID.
THE COURT: DO YOU HAVE ANY QUESTIONS
ABOUT ANYTHING?
MS. LARKINS: NO, I DON'T.
THE COURT: HAVE YOU HAD ENOUGH TIME TO
LOOK AT THIS?
MS. LARKINS: OH, YES.
THE COURT: YOU UNDERSTAND IF YOU
WANTED YOU COULD GO TAKE IT
TO A LAWYER, BUT YOU'VE
CHOSEN TO REPRESENT YOURSELF.
IS THAT WHAT YOU WANT TO
CONTINUE TO DO?
MS. LARKINS: YES.
THE COURT: OKAY. IS THIS AGREEABLE TO
YOU?
MS. LARKINS: IT MOST CERTAINLY IS.
THE COURT: IS THIS WHAT YOU WANT TO DO?
MS. LARKINS: THIS IS WHAT I WANT TO DO.
(1 RT 91-92.) The Court then went on to explain:
5
THE COURT: I'M GOING TO GO AHEAD AND SIGN
THIS. ANYTHING BEFORE I SIGN IT? ANYBODY WANT
TO SAY ANYTHING? I DIDN'T ASK THOSE QUESTIONS
BECAUSE I SAW ANYTHING IN HERE THAT IS
QUESTIONABLE. THE REASON I ASK YOU THOSE
QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S
GIVEN TO THE COURT I ASK THE SAME QUESTIONS.
THAT IS TO PREVENT SOMEBODY FROM COMING
BACK LATER AND SAYING, NO, I DIDN'T REALLY
MEAN TO SAY WHAT I SAID ORDO WHAT I DID. THAT
REMEDY IS NOT GOING TO BE AVAILABLE, BECAUSE
WE GO THROUGH THIS EXERCISEIN MAKING SURE
THAT EVERYBODY UNDERSTANDS WHAT THEY'RE
DOING, ESPECIALLY IF YOU DON'T HAVE A LAWYER
HERE. I WANT TO MAKE SlJRE YOU READ IT,
lTNDERSTAND IT, ANu DON'T HAVb ANY QUESTIONS.
(1 RT 92-93.) Pursuant to standard settlement procedure the Court
questioned
Larkins regarding the terms of the stipulation. (l RT 91-93.) Larkins
stated
that she understood the stipulated injunction's terms and agreed to be
bound
thereby. (1 RT 91-92,94.) Then Larkins l-r:adea knowing waiver of the
right
to seek counsel and stated she wished to continue in pro per on the
record,
before the Court signed the stipulated permanent injunction. (l RT 91-
92.)
Larkins subsequently failed to remove the statements listed in Stutz's
First Amended Complaint and continued to publish defamatory
falsehoods in
violation of the injunction. (3 AA 507-543.) Stutz sent multiple "meet-
andconfer"
letters addressing these violations in detail. (3AA 545-558.) Stutz then
filed a motion to enforce the stipulated injunction with evidence of the
violations and the attempts to meet and confer. (3 AA 480-562.)
On August 7, 2009, the Court confirmed its tentative ruling after
briefing by the parties and argument, and granted Stutz's Motion to
Enforce
Permanent Injunction against Larkins, ordering Larkins to remove the
subject
6
statements within 48 hours. (3 AA 655a.) This minute order was
followed by
a formal order dated September 18,2009. (3AA 655b-655c.)
D. The December 11, 2009 "Expanded Injunction"
T n~lr~~nazain did not remove all ~f'-/-ha statements held defamatory
by Lal~lll~, ao Ill, llU . '--' 11 V.l. LIH•.I ~L L\...tll . 1 \.1.1. 11.l LVI . .
the court, and in some cases she only slightly modified her statements
in an
attempt to skirt the trial court's ruling. (3 AA 656-666.) Accordingly,
Stutz
filed a motion to strike Larkins' answer. (3 AA 656-666.) On December
11, . 2009, the trial court denied the motion, but expanded the original
Stipulated
Injunction to a blanket prohibition against mentioning Stutz anywhere
on
Larkins's website (the "Expanded Injunction"). (4 AA 785-787.)
On March 18, 2010, Larkins appealed the Expanded Injunction.
(5 AA 1032.) However, Larkins did not appeal the March 10,2010
contempt
and sanctions order. (5 AA 1031.)
E. Larkins' Appeal of the December 11, 2009 "Expanded Injunction"
On August 5, 2011, this Court of Appeal issued an opini on on Larkins'
appeal of the Expanded Injunction. (5 AA 1021-1042.) While this Court
reversed and remanded the Expanded Injunction due to constitutional
concerns, it stated that the trial court may consider other methods to
compel
Larkins's compliance with the earlier Stipulated Injunction. (5 AA 1041.)
Specifically, this Court stated in its opinion:
"On Appeal, Larkins does not challenge the trial court's finding
that she failed to comply with the April 6th stipulated injunction
or the Court's August 7 order enforcing the stipulated
injunction. On remand, the trial court may consider whether to
exercise its statutory and inherent authority to coerce
compliance with the April 6 or August 7 orders and/or to punish
Larkins for her failure to comply with said orders in a manner
consistent with the law and the views expressed in this opinion."
(5 AA 1041.) This Court this remanded the proceedings to the trial
court for
7
further consideration on enforcement of the Stipulated Injunction. (1
RA 1-2.)
F. Stutz's Motion to Strike Larkins' Answer
On October 25, 2011, Stutz filed a motion to strike Larkins' answer
based on her continued failure to comply with the April 6, 2009
Stipulated
Injunction. (6 AA 1190-1200a, 1201-1252, 1284-1390.) The trial court
took
the matter under submission, and on March 12, 2012 issued an
extended
briefing schedule allowing a surreply and response. (6 AA 1412-1413.)
G. Larkins' Motion to Modify or Dissolve the Stipulated Permanent
Injunction
While Stutz's motion to strike Larkins' answer was pending in the trial
court, Larkins filed a Motion to Dissolve or Modify the April 6, 2009
Stipulated Injunction. (5 AA 1045-1079.) Stutz opposed on both
substantive
and procedural grounds under Code of Civil Procedure section 533 as
invalid
and without substantive merit. (5 AA 1080-1130.)
the denial of Larkins ' Motion to Modify or Dissolve the Stipulated
Permanent
Injunction.(7AA 1467-1468.) Specifically, the Trial Court stated, "The
Motion of Defendant Maura Larkins to Modify the Injunction is DENIED.
(Code Civ. Proc. § 533)". (7 AA 1468.)
H. The Court Defers Striking Larkins' Answer And Allows Further
Briefing Regarding Compliance
Also on May 30,2012, the Trial Court found, "defendant continues to
post statements on her websites that violate the parties' original
stipulated
injunction." (7 AA 1466-1469.) The trial court identified the offending
statements. (7 AA 1466-1467.) The trial court's minute order
continued:
Although the statements change on defendant's websites, the
results are the same. Defendant continues to willfully violate the
8
stipulated injunction. Defendant does not assert, nor has she
ever argued that her publications do not violate the original
stipulated injunction. The Court of Appeal noted the same.
(Court of Appeal decision, p. 21 ["On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with
, the April 6 stipulated injunction, or the court's August 7 order
enforcing the stipulated injunction."])
(7 AA 1467.)
The trial court's Order also provided:
On the Court's OSC Re: Sanctions, and as directed by the Court
of Appeal, the Court exercises its discretion to punish defendant
for her failure to comply with the original April 6, 2009
stipulated injunction and her failure to comply with subsequent
Court Orders. (See August 7, 2009, October 30, 2009 and
December 11,2009). This ruling applies to the parties original
stipulated injunction, and the Court's ruling herein that
[defendant] continues to violate the original stipulated
injunction.
(7 AA 1468.)
The trial court's May 30, 2012 Minute Order requested further briefing
from the parties regarding Larkins' post-order compliance with the
original
Stipulated Injunction. (7 AA 1467-1468.) This forty-five (45) day
window of
opportunity was presumably given to Larkins by the court to allow time
to
bring the website into compliance and avoid further penalty for
violation of the
Stipulated Injunction. (7 AA 1467-1468.)
I. Larkins' Motion For Reconsideration Of The Denial Of Her
Motion To Modify Or Dissolve The Injunction
Larkins, instead of bringing her website into compliance, filed an
interim motion for reconsideration of the May 30, 2012 order (7 AA
1470-
1489), and three unsuccessful ex parte applications. (7 A~A..1490-
1503 (first
9
ex parte motion to stay); 7 AA 1504a (minute order denyingfirst ex
parte
motion); 7 AA 1513-1528 (second ex parte motion to stay); 7 AA 1529
(minute order denying to reconsider first ex parte motion and denying
second
ex parte motion) 7 AA 1531-1569 (third ex parte motion).) Larkins
alsofiled
an unsuccessful extraordinary writ for alternative review or prohibition
with
thisCourt(8 AA 1827-1878.)
On June 6, 2012 Larkins filed a timely, but procedurally improper
motion for reconsideration. (7 AA 1470-1489.) The motion, made
under Code
Civ. Proc. section 1008, failed to include an affidavit as required by
subdivision (a), and lacked information required to be included by
statute.
(7 AA 1483-1484.) Again, even considering her motion on the merits, it
failed
to contain reference to any new law or fact upon which the trial court
could
reconsider the May 30,2012 order. (See 7 AA 1470-1489.)
J. The Court Strikes Larkins' Answer, And The Instant Appeal
Unfortunately, after May 30; 2012, Larkins failed to take any action to
comply with the trial court's order to bring her websites.into compliance
with
the April 6, 2009 Stipulated Injunction. (8 AA 1618-1703.) Accordingly,
Stutz
filed its brief regarding the status of Larkins' website. (Id.)
After considering the further briefing from both parties regarding
Larkins' compliance with the Stipulated Injunction, the Trial Court
issued an
order granting Stutz's motion and striking Larkins' answer on August
10,
2012. (9 AA 2034-2040.) The Court found "Defendant [Larkins] failed
to
comply with the Court's Orders of August 7, 2009 and March 10,2010
as it
applies to the parties' original Stipulated Injunction." (9 AA 2037.) The
Trial
Court also found "Defendant [Larkins J has continued to publish and
republish
statements in violation of the April 6, 2009 Stipulated Injunction [...J as
late
as June 5, 2012 and July 5, 2012." (9 AA 2038.) Stutz waived payment
of
10
sanctions. (9 AA 2037-2038.)
Larkins noticed the instant appeal on September 4, 2012; appealing
only
the Minute Order denying her motion to modify or dissolve the
stipulated
injunction, which, was entered on May 30, 2012 by the Trial Court. I
(10 AA 2367.)
III. STANDARD OF REVIEW
A. Limited Review On Appeal From Order Denying Motion to
Dissolve Injunction
On appeal from an order refusing to dissolve an injunction, appellate
review is limited to issues newly arising from the motion to dissolve the
injunction and does not extend to issues that could have been raised
on appeal
from the injunction itself. (Malatka v. Helm (2010) 188 Cal.App.4th
1074,
1081-1084; The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch.
2-B ~
2:103.1.)
Abuse of Discretion Standard
The abuse of discretion standard applies to whether to grant or deny a
permanent injunction. (Horsford v. Board of Trustees of Calif. State
Univ.
B.
(2005) 132 Cal.App.4th 359, 390.) And similarly, to a trial court's
decision
regarding whether to dissolve a permanent injunction. (North Beverly
Park
Homeowners Ass 'n v. Bisno (2007) 147 Cal.App.4th 762, 776.)
c. Appellant's Burden to Prove "a clear case of abuse" And "a
miscarriage of justice"
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a
clear
I After the notice of this appeal and the Appellant's Opening Brief
were filed, Larkins also appealed from the final judgment in the case.
This
Court denied Stutz's motion to consolidate the two appeals.
11
case of abuse" and "a miscarriage of justice." (Blank v.Kirwan (1985)
39 CaL3d 311,331; Denham v. Super. Ct. (Marsh & Kidder) (1970) 2
Ca1.3d
557, 566.) On appeals challenging discretionary trial court rulings, it is
appellant's burden to establish an abuse of discretion. (Blankv.
Kirwan, supra,
39 Ca1.3d at 331; Denham, supra, 2 Ca1.3d at 566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only
when,
in its exercise, the trial court "exceeds the bounds of reason, all of the
circumstances before it being considered." (Denham, supra, 2 CaL3d
at 566
(internal quotes and citation omitted); Walker v. Super. Ct. (Residential
Construction Enterprises) (1991) 53 Ca1.3d 257; 272, 279.)
D. Constitutional Issues Should Be Considered Only If Absolutely
Necessary And There Are No Other Dispositive Grounds
Constitutional issues ordinarily will be resolved on appeal only if
"absolutely necessary" and not if the case can be decided on any
other ground.
(Palermo v. Stockton Theatres, Inc. (1948) 32 CaI.2d 53,65; Kollander
Const.,
Inc. v. Super. Ct. (Alvarez) (2002) 98 Cal.AppAth 304, 314
(disapproved on
other grounds inLe Francois v. Gael (2005) 35 Ca1.4th 1094, 1107,
fn. 5 ("We
are constrained to avoid constitutional questions where other grounds
are
available and dispositive").)
IV. ARGUMENTS
A. Larkins Stipulated To An Injunction Against Specific Types Of
Defamation To Avoid A Jury Trial On Damages
The Court record shows that Ms. Larkins agreed to refrain from
publishing certain statements about Plaintiff on April 6, 2009, over four
years
ago, as the Court was waiting to bring up a jury for trial for damages.
(1 RT 85; 6 AA 1287.) A Motion for Summary Adjudication on
defamation
12
had already been granted. (2 AA 401;6 AA 1287; 1 RT 6-14.)
Defendant
Larkins stated on the record, under questioning by the Court, that she
understood and agreed with the terms of the injunction. (1 RT 91-92.)
Larkins now claims that the Court's interpretation ofthe injunction was
unconstitutionally broad in violation of her First Amendment right to
free
speech. As stated in the People ex rel Bill Lockyer v. RJ Reynolds
Tobacco
Company (2004) 116 Cal.AppAth 1253, "Reynolds's contention that the
sanction award improperly punished Reynolds's First Amendment
communication with adult smokers is also unpersuasive. Reynolds was
sanctioned not for its constitutionally protected communication with
adult
smokers but instead for its violation of MSA [settlement agreement],
subsection III(a) by targeting youth in its tobacco advertising." (ld. at
1288.)
Here, Larkins is subject to sanctions not for protected First Amendment
speech, but rather has continued making libelous statements in
violation of a
court order to which she stipulated.
In this case, the stipulated injunction enjoined and restrained Larkins
from "continuing to publish or republishing by any method or media,
including
but not limited to all electronic data, web sites and webpages, 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
violations of law, unethical conduct, lack of professional competence or
intimidation." (2 AA467-468.)
All of the statements set forth above violate the stipulated injunction
and are libelous. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representationto the eye, which
exposes
any person to hatred, contempt, ridicule, or obloquy, or which causes
him to
13
be shunned or avoided, or which has a tendency to injure him in his
occupation. (Civil Code, § 45 (emphasis added).)
Charges of unethical conduct against attorney may constitute actionab
le
defamation. (Katz v. Rosen (1975) 48 CaLA•.pp.3d 1032, 1036.) A fair
construction of Civil Code section 46 requires a holding that calling an
attorney a "crook" is equally actionable as slander per se without proof
of
special damage. tAlbertiniv. Schaefer (1979) 97 Cal.App.3d 822.)
Imputing
dishonesty or lack of ethics to an attorney is also actionable under
Civil Code
section 46 because of the probability of damage to professional
reputation.
(Albertini, supra, 97 Cal.App.3d at pp. 829-830; citing Katz v. Rosen
(1975)
48 Cal.App.3d 1032.) A newspaper publication, involving a cartoon and
imputing hypocrisy and habitual alteration of records by plaintiff, an
attorney
at law, was held to be held libelous per se. (Newby v. Times-Mirror Co.
(1920)
46 Cal.App. 110, 131.) An attorney must not threaten to present
criminal,
administrative, or disciplinary charges to obtain an advantage in a civil
dispute.
(Rules of Professional Conduct, Rule 5-1OO(A).)The statements made
against
Plaintiff allege unprofessional conduct and are therefore libelous.
This Court of Appeal previously stated: "On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with the April
6th
stipulated injunction or the Court's August 7 order enforcing the
stipulated
injunction. On remand, the trial court may consider whether to exercise
its
statutory and inherent authority to coerce compliance with the April 6 or
August 7 orders and/or to punish Larkins for her failure to comply with
said
orders in a manner consistent with the law and the views expressed in
this
opinion." (7 AA 1468.)
The trial court did not abuse its discretion when it refused to modify or
dissolve the stipulated injunction. Rather, it evaluated Larkins' lack of
14
compliance with the injunction, and the lack of new law or facts which
would
warrant modification or dissolution. Based on Larkins history of
refusing to
obey court orders, and the status of the website at the time, the trial
court was
well within its discretion to refuse her request under Code Civ. Proc.
section
533.
B. Larkins' Notice of Appeal is Untimely Because An Invalid Motion
For Reconsideration Does Not Extend Time To Appeal
Larkins motion to dissolve or modify the injunction failed to present
any new law or fact before the trial court as required by Code Civ.
Proc.
section 533 and was properly denied. (7 AA 1468.) Larkins then filed
an
invalid motion for reconsideration, lacking an affidavit and all
information
required by Code Civ. Proc. section 1008(a). (1AA 1470-1489; Code
Civ.
Proc. § 1008(a).) As such, the motion was an invalid and did not
extend the
time to appeal under Cal. Rules of Court, Rule 8.108(e).
L Larkins' June 6, 2012 Motion For Reconsideration Was
Procedurally Defective And Invalid
Larkins' motion for reconsideration failed to comply with the,
procedural requirements of Code of Civ, Proc. section 1008(a).
Specifically,
it was invalid when filed and served because it failed to contain an
affidavit in
support of the motion, it further failed to contain any of the information
required under section 1008, subdivision (a). (See Branner v. Regents
of
University of California (2009) 175 Cal.App.4th 1043, 1048.)
Section 1008, subdivision (a), provides that a party may make an
application to reconsider an order within 10 days after service on the
party of
written notice of entry ofthe order, and that: "The party making the
application
shall state by affidavit what application was made before, when and to
what
judge, what order or decisions were made, and what new or different
facts,
15
circumstances, or law are claimed to be shown." (Code Civ. Proc. §
1008(a);
Branner v. Regents of University of California (2009) 175 Cal.App.4th
1043,
1048.)
Although Larkins served a declaration with her motion, it consisted of
one page, and contained only the following statements:
I, the undersigned, declare:
1. Iam the Defendant in pro per herein.
2. The Exhibits attached are true and accurate copies of the
documents described, and the documents are correctly
and truthfully described.
3. I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
(7 AA 1483-1484.) Even if this Court were to find a declaration
sufficient in
lieuof an affidavit, it still contains numerous defects, and lacks all
information
required to be stated by the moving party in the Code Civ. Proc. §
1008, subd.
what judge, what order or decisions were made, and what new or
different
facts, circumstances, or law are claimed to be shown. (7 AA 1483-
1484.) In
light of these deficiencies, "we must keep in mind that the requirement
that a
motion to reconsider be valid at the time it is served and filed serves
the
purpose of precluding the improper and uncertain extension of the
time to
appeal." (Branner v. Regents of University of California (2009)
175 Cal.App.4th 1043, 1049.)
III
16
2. Larkins' Invalid Motion For Reconsideration Did Not
Extend The Time To File A Notice Of Appeal Under Cal.
Rules of Court 8.104 and 8.108(e).
Notice of appeal from a superior court order must be filed within the
applicable time period set forth in Cal. Rules of Court, Rule 8.104(a). If
the
order is entered in the minutes, and theminute order does not require
a written
order, the order is "entered" on the date of its entry in the permanent
minutes
and is appealable. (Cal. Rules of Court, Rule 8.1 04( c)(2); Strathvale
Holdings
v. E.B.H (2005) 126 Cal.AppAth 1241, 1248; Walton v. Mueller (2009)
180 Cal.AppAth 161, 167.)
For the instant appeal, this deadline was within 60 days of the entry
date
of an appealable order entered in the minutes. (Cal. Rules of Court,
Rule 8.104(a)(1)(A); Cal. Rules of Court, Rule 8.104{c)(2).) The
minute order
in question here was filed on May 30, 20l3, and triggered the sixty day
timer
for filing a notice of appeal, which, expired July 29, 2012. Larkins did
not file
a notice of appeal of the May 30, 2012 minute order until September
4,2012.
(10 AA 2367.)
If any party serves and files a valid motion for reconsideration of an
appealable order under Code Civ. PrDC. section 1008, subd. (a), the
time to
appeal from that order is extended for all parties. (Cal. Rules of Court,
,
17
Rule 8.108(e) (emphasis added).) The motion for reconsideration
extends the
appeal deadline until thirty days after the superior court clerk or a
party serves
an order denying the motion or notice of entry of that order. (Cal.
Rules of
Court, Rule 8.108( e)( 1).) However, the motion must have complied
with all of
the Code Civ. Proc. section 1008 subd. (a) procedural requirements at
the time
it was initially filed. (Branner, supra, 175 Cal.App.dth at pp. 1047-1049;
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch. 3-C ,-r,-r 3:
92-94.)
"[T]he requirement as to the time for taking an appeal is mandatory;
and
the court is without jurisdiction to consider one which has been taken
subsequent to the expiration of the statutory period. [Citations.] [11 In
the
absence of statutory authorization, neither the trial nor appellate
courts may
,extend or shorten the time for appeal [citation], even to relieve against
mistake,
inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be
conferred upon the appellate court by the consent or stipulation of the
parties,
estoppel, or waiver." (Branner, supra, 175 Cal.App.4th at p. 1049,
citing,
Estate a/Hanley (1943) 23 Ca1.2d 120,122-123, (internal citations
omitted);
see also Cal. Rules of Court, Rule 8.104(b) ("no court may extend the
time to
file a notice of appeal").)
"The purpose of this requirement is to promote the finality ofjudgments
by forcing the losing party to take an appeal expeditiously or not at all.
18
[Citation.]" (Branner, supra, 175 Cal.AppAth at p. 1049, citing,
Silverbrand
v. County of Los Angeles (2009) 46 Ca1.4th 106, 113.) The Branner
court
viewed a motion for reconsideration which did not comply with the
affidavit
requirement as invalid and thus did not extend time to appeal. As
Larkins
motion did not contain an affidavit, and the declaration was woefully
insufficient, her appeal is untimely.
C. Larkins Motion To Modify Or Dissolve The Original Stipulated
injunction Presented No New Law Or Facts Under Code Civ. Proc.
§ 533 And The Time To Appeal The Original Order Has Expired
Larkins is correct that an appeal may be taken from an order granting
or dissolving an injunction, or refusing to grant or dissolve an
injunction.
(Code Civ. Proc. § 904.1 (a)(6).) However, on appeal from an order
refusing
to dissolve an injunction, appellate review is limited to issues newly
arising
from the motionto dissolve the injunction and does not extend to
issues that
could have been raised on appeal from the injunction itself. (Malatka v.
Helm
(2010) 188 Cal.AppAth 1074,1081-1084.)
In Malatka, the plaintiff obtained a restraining order against a neighbor.
(Malatka, supra, 188 Cal.AppAth at 1079-1081.) The neighbor did not
appeal,
but later moved to modify the order. (Ibid.) The court modified the
order,
allowing the neighbor to get within 10 rather than 25 feet of the plaintiff.
19
"".
(Ibid.) The neighbor appealed. (Ibid.) "[T]o prevent both circumvention
of
time limits for appealing and duplicative appeals from essentially the
same
ruling ... on an appeal from an appealable ruling, an appellate court
will not
review earlier appealable rulings." (Id. at 1082.)
Thus, courts have allowed an appeal of a modification of an injunction,
but only insofar as it raises issues that could not have been raised in
an earlier
appeal. (Id. at p. 1083.) For example, in Chico Feminist Women's
Health
Center v. Scully (1989) 208 Cal.App.3d 230, the appellants sought to
chalienge
not only the modifications of the injunction, but the unmodified parts of
the
injunction as well. The court concluded, "We perceive no reason why
defendants should be able to use the order of April 25, amending the
injunction, as an artificial springboard from which to launch an appeal
that
could have been taken earlier." (ld. at p. 251.)
Similarly, in Malatka, the defendant asserted that an order refusing to
dissolve an injunction is appealable. The court there rejected the
obvious
subterfuge, explaining: "Without conflating restrictions on appealability
and
reviewability, we conclude that, to the extent the current appeal from
an order
implicitly refusing to dissolve a restraining order presents issues that
could
have been raised in an appeal from the original restraining order,
those issues
are not reviewable in this appeal. On the other hand, to the extent the
motion
to dissolve was dependent on new facts and law, such issues are
reviewable."
(Malatka, supra, 188 Cal.App.4th at 1084.)
Larkins presents absolutely no new facts or new law. As such, she has
failed to carry her burden showing that there has been a material
change in the
facts or law upon which the injunction was granted, or that the ends of
justice
would be served by the modification or dissolution of the injunction, as
required. (Civ. Proc. Code § 533.) Here, unlike Malatka, there is not
even a
plausible ground for review because the court did not modify the
injunction.
Before us is the very same injunction Larkins could have appealed
almost three
years earlier. Larkins, in her motion to the trial court under section
533, failed
to identify new facts or law which would support such a modification,
nor
were any cited in her subsequent motion under Code Civ. Proc. section
1008(a).
This Court 'has no discretion to relieve an appellant from the
consequences of delay in filing a notice of appeal. (Chico Feminist
Women's
Health Center v. Scully (1989) 208 Cal.App.3d 230,254.) Because
appellant
did not perfect a timely appeal from the order granting the original
injunction,
the court is left without jurisdiction to review the trial court's original
order
granting the injunction. (Cal. Rules of Court, rule 8.104(a), (b);
Malatka,
supra, 188 Cal.App.4th at 1085-1087.)
20
21
D. The Stipulated Injunction Against Defamation Is Constitutional
Because Larkins Knowingly Agreed Not To Defame Stutz And
Agreed To Be So Enjoined
As a preliminary matter, Larkins' citations to cases involving
preliminary and permanent injunctions without agreement by the
parties are
unhelpful and inapposite. The California Supreme Court's decision in
Balboa
Island Village Inn Inc. (2007) 40 Ca1.4th 1141, and this Court's
decision in
Evans v. Evans (2008) 162 Cal.App4th 1157, both dealt with
injunctions
which were not stipulated to by the parties. Neither case discussed a
stipulated
injunction which was agreed upon in front of a judge, in court, with a
court
reporter present. In fact, Stutz is not aware of any reported case
dealing
squarely with this issue, specifically, in the context of defamation and a
knowing waiver. Generally, however, constitutional rights may be
waived.
1. A Knowing Waiver Of Constitutional Rights Is Valid
Nothing in the Stipulated Injunction is a waiver of protected First
Amendment speech, as no person has a privilege to defame another.
However,
"it is possible to waive even First Amendment free speech rights by
contract."
(ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d
307,319;
accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir.
2002)
304 F.3d 927, 935, fn. 9.)
,
22
It is a strained analysis at best to construe the stipulated injunction, the
admonishments to Larkins, and her prior lawsuits for defamation, as
anything
but a knowing waiver. (See Sanchez v. County of San Bernardino
(2009)
176 Cal.App.4th 516, 528 (the court could see no way to construe the
confidentiality provision except as a waiver of whatever rights the
County had
.to disclose the circumstances of Sanchez's resignation).)
2. The Stipulated Permanent Injunction Was Mutually Agreed
Upon And Discussed On the Record With Judge Hayes
Larkins states that she does not understand the injunction or its terms,
a statement contradicted by the record. (1 RT 91-94.) During the April
6, 2009
hearing on the stipulated injunction, defendant was admonished by the
Court
as rights she was giving up. (I RT 91-94.)
Pursuant to standard settlement procedure the trial court clearly
questioned Larkins regarding the terms of the stipulation, her
understanding,
rights, and ability to seek counsel. (I RT 91-94; 5 AA 1083-1084.)
Larkins
stated that she understood the stipulated agreements terms and
agreed to be
bound thereby. (Id.) Larkins further clearly waived the right to seek
counsel
and stated she wished to continue in propria persona on the record,
before the
Court signed the stipulated permanent injunction. (Id.)
III ,
'"
23
Larkins now claims extrinsic fraud was committed against her by
Plaintiffs and the Court; this claim is patently untrue. The stipulated
injunction
was reached as a partial settlement, in order for the defendant to
avoid a jury
trial on the issue of damages that day. Larkins agreed to the injunction
in order
to avoid the risks of proceeding on that issue.
3. This Court's Prior Ruling Indicated The Injunction Was
Valid, And The Trial Court Could Coerce Defendant's
Compliance
The Court of Appeal in its decision on August S, 2011, did not hold the
April 6, 2009 stipulated injunction unconstitutional, and specifically
noted it
was not subject to appeal. (See S•AA 1041.) Rather, the appellate
court struck
the language expanding the scope of the stipulated injunction ordered
on
December 11, 2009. (ld.) This Court specifically stated that on
remand, the
trial court may consider whether to exercise its statutory and inherent
authority
to coerce compliance with the April 6, 2009 order. (Id.)
The April 6, 2009 injunction remains in effect, and was not touched
upon by the Court of Appeal in its decision. In fact, contrary to Larkins
assertions, the this Court's prior decision in favor did not change, rule
upon,
or effect the constitutionality of the April 6, 2009 stipulated injunction.
(See
id.) Thus, Larkins made no showing of material change with respect to
any
24
circumstance.
V. CONCLUSION
Respectfully, for the foregoing reasons, this court should affirm the
order denying Larkins' motion to dissolve the stipulated injunction.
DATED: June 3,2013 ASTPUroTfZesAsRioTIANcO~.oSrr'pHOt. nF.
F&HOLTZ
eA
By: /
ay J. Artiano I Ijames F. Holtz
Attorneys' fof Plaintiff STUTZ ARTIANO
SHINOFFh HOLTZ, APC
,
,
DATED: June 3, 2012
CERTIFICATE OF WORD COUNT
The text of this Respondent's Brief consists of 6,201 words within its
text and footnotes as counted by the Corel Word Perfect version 12.0
word
processing program used to generate the brief.
,
25
Maura Larkins
1935 Autocross Court
EI Cajon, CA 92019
Defendant In Pro Per
San Diego Superior Court
Appeals Division
220 W. Broadway, Rm. 3005
San Diego, CA 92101
Stutz Artiano Shinoff & Holtz, APe v. Maura Larkins, et al.
Fourth District Case No. D062738
San Diego Superior Court Case No. 37-2007-00076218-CU-DF-CTL
PROOF OF SERVICE
I am and was at all times herein mentioned over the age of 18 years
and not a party
to the action in which this service is made. At all times herein
mentioned Ihave been
employed in the County of San Diego in the office of a member of the
bar of this court at
whose direction the service was made. My business address is 2488
Historic Decatur
Road, Suite 200, San Diego, California 92106-6113.
a
On June -J-, 2013, Iserved the following document(s):
RESPONDENT'S BRIEF; RESPONDENT'S APPENDIX IN LIEU OF
CLERK'S
TRANSCRIPT (VOL. 1 OF!); WORD COUNT; CERTIFICATE OF
INTERESTED ENTITIES OR PERSONS '- SUPPLEMENTAL
CERTIFICATE
BY MAIL by depositing in the United States Postal Service mail box at
2488
Historic Decatur Road, Suite 200, San Diego, California 92106, atrue
copy thereof
in a sealed envelope with postage thereon fully prepaid and
addressed as follows:
BY ELECTRONIC SERVICE On the date indicated above, Iserved from
my
electronic address of jwolber@stutzartiano.com the foregoing
documents
described above on designated recipients through electronic
transmission of said'
documents.
California Supreme Court
Submitting an electronic copy of the
brief on the Court of Appeal will
.satisfy the requirements for service on
the Supreme Court under rule
8.212(c)(2).
Court of Appeal of California
Fourth Appellate District, Division One
Symphony Towers
750 B Street, Suite 300
San Diego, California 92101
email:
D062738_RB _Stutz (searchable .pdf; max 5MB)
G:IDATAI701114IPLISOI40385.WPD
I declare under penalty of perjury under the laws of the State of
California that the
foregoing is true and correct. ,~
ExecutedonJune3,2013at s+/gO'~ifomia. ../
. /~~1~ JE~ 0 BER ()
G:\DATAI701114IPLISOI40J85.WPD
TABLE OF CONTENTS
I. INTRODUCTION
II. FACTS AND PROCEDURAL HISTORY 1
A Prior Proceedings 1
B The Complaint And Summary Adjudication 3
C The April 6, 2009 Stipulated Permanent Injunction3
D The December 11, 2009 "Expanded Injunction" 0 0 0 0 0 0 0 0 • 0 6
E Larkins' Appeal of the December 11, 2009
"Expan deead mTO, Juncuo0 n " 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0
•••••••••••••
Fo, Stutz's Motion to Strike Larkins' Answer. 0 0 0 0 • 0 0 0 0 •• 0 0 • 7
Go Larkins' Motion to Modify or Dissolve the Stipulated
Permanent Injunction 0 •• 0 •• 0 0 0 ••••• 0 •• 0 0 0 0 0 0 •• 0 ••••• 7
H. The Court Defers Striking Larkins' Answer And Allows
Further Briefing Regarding Compliance .... 0 • 0 0 •• 0 ••••• 7
I. Larkins' Motion For Reconsideration Of The Denial
Of Her Motion To Modify Or Dissolve The Injunction 0000 8
J. The Court Strikes Larkins' Answer, And The Instant
Appeal ... 00000 •• 0 0 0 0 • 0 0 0 0 0 • 0 0 0 • 0 • 000.0000 •• 000. 009
III. STANDARD OF REVIEW 00 •• 000000.0000000 •• 000.0000.000 10
Ao Limited Review On Appeal From Order Denying
Motion to Dissolve Injunction 0 0 0 0 ••• 0 " 0 • 0 0 0 0 • 0 • 0 • 0 0 10
B. Abuse of Discretion Standard .000000.000 0 0 0 0 ••••• 0 0 • 10
Co Appellant's Burden to Prove "a clear case of abuse"
A-d "- ,..". '..c ~- ..L" " -r 1"\ n a rmscarnage 01 Jusllce 0 0 0 • 0 0 0 •• 0
0 0 • 0 • 0 0 • 0 •••• , 1V
,
11
D. Constitutional Issues Should Be Considered Only If
Absolutely Necessary And There Are No Other Dispositive
Grounds 11
IV. ARGUMENTS 11
A. Larkins Stipulated To An Injunction Against Specific
Types Of Defamation To Avoid A Jury Trial On Damages 11
B. Larkins' Notice of Appeal is Untimely Because An
Invalid Motion For Reconsideration Does Not Extend
Time To Appeal 14
1. Larkins' June 6, 2012 Motion For Reconsideration
Was Procedurally Defective And Invalid 14
2. Larkins' Invalid Motion For Reconsideration
Did Not Extend The Time To File A Notice Of
Appeal Under Cal. Rules of Court 8.104
and 8.I08(e) 16
C. Larkins Motion To Modify Or Dissolve The Original
Stipulated Injunction Presented No New Law Or Facts
Under Code Civ. Proc. § 533 And The Time To Appeal
The Original Order Has Expired . . . . . . . . . . . . . . . . . . . . . 18
D. The Stipulated Injunction Against Defamation Is
Constitutional Because Larkins Knowingly Agreed
Not To Defame Stutz And Agreed To Be So Enjoined .... 21
1. A Knowing Waiver Of Constitutional Rights Is
Valid 21
2. The Stipulated Permanent Injunction Was
Mutually Agreed Upon And Discussed' On the
Record With Judge Hayes 22
"
••
III
3. This Court's Prior Ruling Indicated The Injunction
Was Valid, And The Trial Court Could
Coerce Defendant's Compliance 23
V. CONCLUSION 24
STUTZ ARTIANO SHINOFF & HOLTZ, A.P.c.
Ray 1. Artiano, Esq. (State Bar No. 88916)
James F. Holtz, Esq. (State Bar No.95064)
2488 Historic Decatur Road, Suite 200
San Diego, CA 92106
Tel: (619) 232-3122; Fax: (619) 232-3264
Attorneys for
Plaintiff/Respondent
STUTZ ARTIANO
SHINOFF & HOLTZ, APC
4 Civil No. D062738
IN THE COURT OF APPEAL OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF &
HOLTZ, APC.,
Superior Court Case No.
'
I 37-2007-00076218-CU-DFCTL
I
Ct. of App. No. D062738
Plaintiff/Respondent,
v.
Defendant/Appellant
MAURALARKINS,
Appeal from an Order of the Superior Court of California
In and For the County of San Diego
Honorable Judge Judith F. Hayes
RESPONDENT'S BRIEF
,
,
STUTZARTIANOSI-HNOFF & HOLTZ, A.P.C.
Ray J.Artiano, Esq. (State Bar No. 88916)
James F. Holtz, Esq. (State Bar No.95064»
2488 Historic: Decatur Road, Suite 200
San Diego, CA '921 06 .
Tel: (619) 232-3122; Fax: (619) 232-3264
Attorneys for
Plaintiff/Respondent
STUTZARTIANO
SHINOFF & HOLTZ, APC
4 Civil No. D062738
IN THE COURT OF APPEAL OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
SllJTZ ARTIANO SHINOFF &
HOL TZ, APC.,
Ct. of App. No. D062738
Plaintiff/Respondent,
, I Superior Court Case No. 37-Z007-00076Z1 S-CU-DFv.
CTL
l\iAUIV\ LARKINS,
Defendant/Appellant
Appeal from an Order of the Superior Court of California
Inand For the County of San Diego
Honorable Judge Judith F. Hayes
RESPONDENT'S BRIEF
TO BE FILED IN THE COURT OF APPEAL
APP-008
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
Court of Appeal Case Number.
D062738
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar
number. and address): Superior Court Case Number:
James F. Holtz (#95064)
- Stutz Artiano Shinoff &Holtz, APC 37-2007-0007621S-CU-DF-CTL
2488 Historic Decatur, Suite 200 FOR COURT USE ONL Y
San Diego, California 92106
~-6I.HtGTAp~i!1 Fourth lJistriC'( TELEPHONE NO .. 619-232~3122
FAX NO (Optional) 619-232-3264
E-MAIL ADDRESS (Optiona!): F i l E 0 ATTORNEY FOR (Name): Stutz
Artiano Shinoff & Holtz
APPELLANTIPETITIONER: Maura Larkins APR 17 201.1
"St:,Pl1eri M. ~~e"rlYC•,ler~
RESPONDENT/REAL pARTY IN INTEREST: Stutz Artiano Shinoff &
Holtz, APC ..~~-.. - . -DlTI5trr.-r-~-"'"-'-•-" ~~ ~~. '!'
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one). D INITIAL CERTIFICATE [ZJ SUPPLEMENTAL
CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing thls.
forrn, You may use this form for the initial
certificate in an appeai when you me your brief or a prebriefing motion,
application, or opposition to such a
motion or application in the Court of Appeal, and when you file a
petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you iearn of
changed or additional information that must
be disclosed,
1. This form is being submitted on behalf of the following party (name):
Stutz Artiano Shinoff & Holtz
2, a. LJ There are no interested entities or persons thai must be listed
in this certificate under rule 8.208.
b. CZJ Interested entities or persons required to be listed under rule
8.208 are as follows:
Full name of interested
entity or person
Nature of interest
(Explain):
(1) Ray Artiano
(2) James Holtz
(3) Daniel Shinoff
Shareholder
Shareholder
Shareholder
(4)
(5)
DContinued on attachment 2.
The underSigned certifies that the above-listed persons or entities
(corporations, partnerships, firms, or any other
association, but not including government entities or their agencies)
have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in
the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as
defined in rule 8.208(e)(2).
=orm Approved for Optional Use
Judicial Council or ceercrnre
APP-008 (Rev. January 1,20091
CERTIFICATE OF INTERESTED ENTItiES OR PERSONS
Date: 04116/2013
Ijames F. Holtz
(TYPE OR PRINT NAME)
Page 1 of1
CaL Rules of Court, rules 8.208.-8.488
wwW.courlinlo.ca.gov
,
BY HAND-DELIVERY by delivery of a copy of said document(s)
to the following addressee(s) as follows:
STUTZ ARTIANO SHINOFF
& HOLTZ. A.P.C.
Tames F. Holtz, Esq.
2488 Historic Decatur Road, Suite 200
San Diego, CA 92106
Client:
Plaintiff/Respondent
STUTZ ARTIANO
SHINOFF & HOLTZ,
APC
Stutz Artiano ShinoJf& Holtz, APe v. Maura Larkins, et al.
Fourth District Case No. D062738
San Diego Superior Court Case No. 37-2007-00076218":CU-DF-CTL
PROOF OF SERVICE
. I am and was at all times herein mentioned over the age of 18 years
and
not a party to the action in which this service is made. At all times
herein
mentioned I have been employed-in the County of San Diego in the
office of
a member of the bar ofthis court at whose direction the service was
made. My
business address is 2488 Historic Decatur Road, Suite 200, San Diego,
California 92106-6113.
On April 17, 2013, I served the following document(s):
RESPONDENT'S MOTION TO CONSOLIDATE APPEALS
AND SUPPORTING MEMORANDUM; REQUEST FOR
EXTENSION OF TIME TO FILE RESPONDENrS BRIEF
IN THE ALTERNATIVE;
DECLARATION OF COUNSEL IN SUPPORT;
CERTIFICATE OF INTERESTED ENTITIES OR
PERSONSSUPPLEMENTAL
CERTIFICATE
[6). BY MAIL by depositing in the United States Postal Service mail box
at 2488 Historic Decatur Road, Suite 200, San Diego, California 92106,
a true copy thereof in a sealed envelope with postage thereon fully
prepaid and addressed as follows:
Maura Larkins
1935 Autocross Court
El Cajon, CA92019
mauralarkins@gmail.com
San Diego Superior Court
Appeals Division
220 W. Broadway, Rm. 3005
San Diego, CA 92101
Defendant In Pro Per
. I ?eclare under per:.altx of perjury under the laws of the State of
California that the foregomg IS true and correct. /1 0
Executed on April 17, 2013 at San Diego, California, ,J.," OJ '.G-,rr .
I" I'LU
JE:NIFER WOLBERdif
TABLE OF CONTENTS
I. INTRODUCTION 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1
II. FACTS AND PROCEDURAL HISTORY 0000000000000000000000 1
Ao Prior Proceedings 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 1
Bo The Complaint And Summary Adjudication 0 0 0 0 0 0 0 0 0 0 0 0 0
3
Co The April 6, 2009 Stipulated Permanent Injunction 0 0 0 0 0 0 0 3
Do The December 11, 2009 "Expanded Injunction" 0 0 0 0 0 0 0 0 • 0 6
Eo Larkins' Appeal of the December 11, 2009
"Expan deead mTO, Juncuo0 n " 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • 0
•••••••••••••
Fo, Stutz's Motion to Strike Larkins' Answer. 0 0 0 0 • 0 0 0 0 •• 0 0 • 7
Go Larkins' Motion to Modify or Dissolve the Stipulated
Permanent Injunction 0 •• 0 •• 0 0 0 ••••• 0 •• 0 0 0 0 0 0 •• 0 ••••• 7
H. The Court Defers Striking Larkins' Answer And Allows
Further Briefing Regarding Compliance .... 0 • 0 0 •• 0 ••••• 7
I. Larkins' Motion For Reconsideration Of The Denial
Of Her Motion To Modify Or Dissolve The Injunction 0000 8
J. The Court Strikes Larkins' Answer, And The Instant
Appeal ... 00000 •• 0 0 0 0 • 0 0 0 0 0 • 0 0 0 • 0 • 000.0000 •• 000. 009
III. STANDARD OF REVIEW 00 •• 000000.0000000 •• 000.0000.000 10
Ao Limited Review On Appeal From Order Denying
Motion to Dissolve Injunction 0 0 0 0 ••• 0 " 0 • 0 0 0 0 • 0 • 0 • 0 0 10
B. Abuse of Discretion Standard .000000.000 0 0 0 0 ••••• 0 0 • 10
Co Appellant's Burden to Prove "a clear case of abuse"
A-d "- ,..". '..c ~- ..L" " -r 1"\ n a rmscarnage 01 Jusllce 0 0 0 • 0 0 0 •• 0
0 0 • 0 • 0 0 • 0 •••• , 1V
,
11
D. Constitutional Issues Should Be Considered Only If
Absolutely Necessary And There Are No Other Dispositive
Grounds 11
IV. ARGUMENTS 11
A. Larkins Stipulated To An Injunction Against Specific
Types Of Defamation To Avoid A Jury Trial On Damages 11
B. Larkins' Notice of Appeal is Untimely Because An
Invalid Motion For Reconsideration Does Not Extend
Time To Appeal 14
1. Larkins' June 6, 2012 Motion For Reconsideration
Was Procedurally Defective And Invalid 14
2. Larkins' Invalid Motion For Reconsideration
Did Not Extend The Time To File A Notice Of
Appeal Under Cal. Rules of Court 8.104
and 8.I08(e) 16
C. Larkins Motion To Modify Or Dissolve The Original
Stipulated Injunction Presented No New Law Or Facts
Under Code Civ. Proc. § 533 And The Time To Appeal
The Original Order Has Expired . . . . . . . . . . . . . . . . . . . . . 18
D. The Stipulated Injunction Against Defamation Is
Constitutional Because Larkins Knowingly Agreed
Not To Defame Stutz And Agreed To Be So Enjoined .... 21
1. A Knowing Waiver Of Constitutional Rights Is
Valid 21
2. The Stipulated Permanent Injunction Was
Mutually Agreed Upon And Discussed' On the
Record With Judge Hayes 22
"
••
III
3. This Court's Prior Ruling Indicated The Injunction
Was Valid, And The Trial Court Could
Coerce Defendant's Compliance 23
V. CONCLUSION 24
,
,
IV
TABLE OF AUTHORITIES
State Cases
Albertini v. Schaefer (1979)
97 Ca1.App.3d 822 13
Balboa Island Village Inn Inc. (2007)
40 Ca1.4th 1141 ; 21
Blank v. Kirwan (1985)
39 Ca1.3d 311 11
Branner v. Regents of University of California (2009)
. 175 Cal.App.4th 1043 14,15,17,18
Chico Feminist Women's Health Center v. Scully (1989)
208 Cal.App.Jd 230 19,20
Denham v. Super. Ct. (Marsh & Kidder) (1970)
2 Ca1.3d 557 11
Estate a/Hanley (1943)
23 Ca1.2d 120 17
Evans v. Evans (2008)
162 CaLApp4th 1157 21
Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359 10
ITT Telecom Products Corp. v. Dooley(l989)
214 Cal.App.3d 307 21
Katz v. Rosen (1975)
48 Cal.App.3d 1032 13
Kollander Const., Inc. v. Super. Ct. (Alvarez) (2002)
98 Cal.App.4th 304 11
Le Francois v. Goel (2005)
35 Ca1.4th 1094 11
Malatka v. Helm (2010)
188 Cal.App.4th 1074 10, 18-20
Newby v. Times-Mirror Co. (1920)
46 Cal.App. 110 13
North Beverly Park Homeowners Ass 'n v. Bisno (2007)
147Cal.AppAth 762 10
v
Palermo v. Stockton Theatres, Inc. (1948)
32 Ca1.2d 53 11
People ex reI Bill Lockyer v. RJ Reynolds Tobacco Company (2004)
116 Cal.App.4th 1253 12
Sanchez v. County of San Bernardino (2009)
176 Cal.App.4 th 516 . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 22
Silverbrand v. County of Los Angeles (2009)
46 Ca1.4th 106 18
Strathvale Holdings v. E.B.H (2005)
126 Cal.App.4th 1241 16
Walker v. Super. Ct. (Residential Construction Enterprises) (1991)
53 Ca1.3d 257 11
Walton v.Mueller (2009)
180 Cal.App.4thl61 16
Federal Case
Charter Communications, Inc. v. County of Santa Cruz (9th Cir.2002)
304 F.3d 927 21
Civil Code section 45 13
Code of Civil Procedure section 533 14, 20
Code of Civil Procedure section 904.1 18
Code of Civil Procedure section 1008 . . . . . . . . . . .. . . . . . . . . 9, 14-
17, 20
Rules
Rules of Court, Rule 8.104 16,17,20
Rules of Court., Rule 8.108 14,16,17
Rules of Professional Conduct, Rule 5-1OO(A) 13
VI
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs
Ch. 2-B ~ 2:103.l 10
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs
Ch. 3-C ,-r,-r 3:92-94 17
1
I. INTRODUCTION
Appellant Maura Larkins has appealed the trial court's order denying
her motion to modify or dissolve a stipulated injunction. This stipulated
injunction between Larkins and Respondent Stutz Artiano Shinoff &
Holtz,
APC ("Stutz") was entered on the record in open court. Despite that
Larkins
voluntarily agreed to the injunction and partial settlement to avoid a
jury trial
on damages over three years before the instant appeal, Larkins
nevertheless
takes issue with the trial court's ruling.
Larkins has a long history of litigation misconduct and violations of
court orders. The court record shows that Larkins agreed to refrain
from
publishing certain statements about Stutz on Aprii 6, 2009, as the
Court was
waiting to bring up a jury for a trial for damages. A motion for summary
adjudication on defamation had already been granted. Larkins stated
on the
record, under questioning by the Court, that she understood and
agreed with
the terms of the iniunction. -- --.J
She now claims that the Superior Court's interpretation of the
injunction was unconstitutionally broad, in violation ofher right to free
speech.
However, Larkins is subject to a agreement tobe enjoined from specific
types
of defamatory statements, which, she entered into voluntarily. She has
not been
forcibly enjoined from protected speech. Regardless, she continued to
make
libelous statements in violation of a court order to which she stipulated.
II. FACTS AND PROCEDURAL HISTORY
A. Prior Proceedings
Maura Larkins has a pattern of willful failure to comply with the law,
resulting in terminating sanctions. (6 AA 1286, 1380-1382,1384, 1386-
1388,
1390; 9 AA 2034-2040.) In fact, terminating sanctions have now been
issued
four times, and she has voluntarily dismissed one other case. (Jd)
Larkins was a teacher in the Chula Vista Elementary School District.
(6 AA 1336-1337.) She was terminated in 2001. (6 AA 1340; 6 AA
1376)
Larkins sued the school district's assistant principal, and fellow
teachers in
Larkins v. Werlin, et al. (Case No. GIC 781970). (6 Aft,. 1336-1378.)
She
alleged libel and slander showing she knew what these terms mean.
(6 AA 1336-1378.) On December 3,2004, Judge Nevitt granted
terminating
sanctions for failure to comply with litigation requirements. (6 AA 1380-
1382.)
In January 2004, Larkins sued the lawyer who represented her in the
employment dismissal hearing for alleged malpractice in Larkins v.
Schulman,
Case No. GIC 823858. (6 AA 1287, 1384.) Larkins subpoenaed many
district
employees for deposition, and the court granted a motion to quash
those
subpoenas and a protective order in August 2004. (6 AA 1287.) Later,
the legal
malpractice case was dismissed by the Court as a "terminating
sanction".
(6 A_A 1384.)
In April 2004, Larkins filed another case in San Diego Superior Court
related to her employment with .the District called Larkins v. California
Teachers Association, et al., Case No. GIe 825879. (6 AA 1287.) The
Court
consolidated the Larkins v. Werlin and Larkins v. CTA cases. (6 AA
1287.) In
January 2005, judgment was entered against Larkins in favor of the
District
and all of the individual district employee defendants and costs were
awarded.
(6 AA 1386-1388.) She dismissed the remaining claims. (6 AA 1390.)
From the foregoing, it is apparent that because Larkins could not
accept
personal responsibility for her acts which led to her termination, she
first
attempted to sue the school district, her superiors and co-employees
repeatedly,
and repeatedly lost. (6 AA 1287.) By 2005, she had turned her
attention to the
Stutz firm because they represented the school district. (6 AA 1287.)
Because
2
3
Daniel Shinoffwas the firm member in charge of the school team, she
began
directing her ire towards him personally and other firm attorneys with
whom
she had contact. (6 AA 1287.)
B. The Complaint And Summary Adjudication
On October 5, 2007, Stutz filed its complaint with the Superior Court
of San Diego County alleging damages pursuant to defamation by
Larkins and
seeking punitive damages. (1 AA 1-9.) On October 24, 2008, Stutz
filed a
motion for summary adjudication. (1 AA 155 - 2 AA 268.) On March 26,
2009, the trial court granted Stutz's motion for summary adjudication;
which;'
thereby adjudicated and declared that certain statements on Larkins's
website
were defamatory. (2 AA 401.)
C. The April 6, 2009 Stipulated Permanent Injunction
Larkins, in order to avoid a jury trial on the issue of damages engaged
I.n negoti.a.n..ons WIth Stutz. ("1 RT 89 Q1 '\ n h . . 1 d +l r rt =» .•.•J
Both parties stipulate to "he '-'oU...•
issuing a permanent injunction with negotiated and agreed upon terms,
(1 RT 91-93.) On Apri16, 2009, the trial court issued an Order on a
Stipulated
Permanent Injunction (the "Stipulated Injunction") against Larkins and
in
favor of Stutz. (2 AA 467-468.)
The Stipulated Injunction enjoined and restrained Larkins 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 violations of law, unethical conduct, lack of professional
competence or intimidation.
(2 AA 467-468.)
4
During the April 6, 2009 hearing on the stipulated injunction, Larkins
was admonished by the Court as to rights she was giving up. (1 RT 91-
94.)
The following exchange occurred:
I HAVE BEFORE ME A DOCUMENT
ENTITLED, "ORDER ON PERMANENT
INJUNCTION." IT HAS BEEN
SUBMITTED TO THE COURTFORMY
SIGNATURE. IT IS MY
UNDERSTANDING THAT THE
PARTIES AGREE ON THIS. IS THAT
CORRECT, COUNSEL?
YES, YOUR HONOR. THIS .IS A
S TIPULA TED PERMANENT
INJITi\fCTION.
THE COURT: DID YOU READ IT?
MS. LARKINS: YES I DID.
THE COURT:
MR. HOLTZ:
THE COURT: DID YOU lJNDERSTAt-ID IT?
MS. LARKINS: YES, I DID.
THE COURT: DO YOU HAVE ANY QUESTIONS
ABOUT ANYTHING?
MS. LARKINS: NO, I DON'T.
THE COURT: HAVE YOU HAD ENOUGH TIME TO
LOOK AT THIS?
MS. LARKINS: OH, YES.
THE COURT: YOU UNDERSTAND IF YOU
WANTED YOU COULD GO TAKE IT
TO A LAWYER, BUT YOU'VE
CHOSEN TO REPRESENT YOURSELF.
IS THAT WHAT YOU WANT TO
CONTINUE TO DO?
MS. LARKINS: YES.
THE COURT: OKAY. IS THIS AGREEABLE TO
YOU?
MS. LARKINS: IT MOST CERTAINLY IS.
THE COURT: IS THIS WHAT YOU WANT TO DO?
MS. LARKINS: THIS IS WHAT I WANT TO DO.
(1 RT 91-92.) The Court then went on to explain:
5
THE COURT: I'M GOING TO GO AHEAD AND SIGN
THIS. ANYTHING BEFORE I SIGN IT? ANYBODY WANT
TO SAY ANYTHING? I DIDN'T ASK THOSE QUESTIONS
BECAUSE I SAW ANYTHING IN HERE THAT IS
QUESTIONABLE. THE REASON I ASK YOU THOSE
QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S
GIVEN TO THE COURT I ASK THE SAME QUESTIONS.
THAT IS TO PREVENT SOMEBODY FROM COMING
BACK LATER AND SAYING, NO, I DIDN'T REALLY
MEAN TO SAY WHAT I SAID ORDO WHAT I DID. THAT
REMEDY IS NOT GOING TO BE AVAILABLE, BECAUSE
WE GO THROUGH THIS EXERCISEIN MAKING SURE
THAT EVERYBODY UNDERSTANDS WHAT THEY'RE
DOING, ESPECIALLY IF YOU DON'T HAVE A LAWYER
HERE. I WANT TO MAKE SlJRE YOU READ IT,
lTNDERSTAND IT, ANu DON'T HAVb ANY QUESTIONS.
(1 RT 92-93.) Pursuant to standard settlement procedure the Court
questioned
Larkins regarding the terms of the stipulation. (l RT 91-93.) Larkins
stated
that she understood the stipulated injunction's terms and agreed to be
bound
thereby. (1 RT 91-92,94.) Then Larkins l-r:adea knowing waiver of the
right
to seek counsel and stated she wished to continue in pro per on the
record,
before the Court signed the stipulated permanent injunction. (l RT 91-
92.)
Larkins subsequently failed to remove the statements listed in Stutz's
First Amended Complaint and continued to publish defamatory
falsehoods in
violation of the injunction. (3 AA 507-543.) Stutz sent multiple "meet-
andconfer"
letters addressing these violations in detail. (3AA 545-558.) Stutz then
filed a motion to enforce the stipulated injunction with evidence of the
violations and the attempts to meet and confer. (3 AA 480-562.)
On August 7, 2009, the Court confirmed its tentative ruling after
briefing by the parties and argument, and granted Stutz's Motion to
Enforce
Permanent Injunction against Larkins, ordering Larkins to remove the
subject
6
statements within 48 hours. (3 AA 655a.) This minute order was
followed by
a formal order dated September 18,2009. (3AA 655b-655c.)
D. The December 11, 2009 "Expanded Injunction"
T n~lr~~nazain did not remove all ~f'-/-ha statements held defamatory
by Lal~lll~, ao Ill, llU . '--' 11 V.l. LIH•.I ~L L\...tll . 1 \.1.1. 11.l LVI . .
the court, and in some cases she only slightly modified her statements
in an
attempt to skirt the trial court's ruling. (3 AA 656-666.) Accordingly,
Stutz
filed a motion to strike Larkins' answer. (3 AA 656-666.) On December
11, . 2009, the trial court denied the motion, but expanded the original
Stipulated
Injunction to a blanket prohibition against mentioning Stutz anywhere
on
Larkins's website (the "Expanded Injunction"). (4 AA 785-787.)
On March 18, 2010, Larkins appealed the Expanded Injunction.
(5 AA 1032.) However, Larkins did not appeal the March 10,2010
contempt
and sanctions order. (5 AA 1031.)
E. Larkins' Appeal of the December 11, 2009 "Expanded Injunction"
On August 5, 2011, this Court of Appeal issued an opini on on Larkins'
appeal of the Expanded Injunction. (5 AA 1021-1042.) While this Court
reversed and remanded the Expanded Injunction due to constitutional
concerns, it stated that the trial court may consider other methods to
compel
Larkins's compliance with the earlier Stipulated Injunction. (5 AA 1041.)
Specifically, this Court stated in its opinion:
"On Appeal, Larkins does not challenge the trial court's finding
that she failed to comply with the April 6th stipulated injunction
or the Court's August 7 order enforcing the stipulated
injunction. On remand, the trial court may consider whether to
exercise its statutory and inherent authority to coerce
compliance with the April 6 or August 7 orders and/or to punish
Larkins for her failure to comply with said orders in a manner
consistent with the law and the views expressed in this opinion."
(5 AA 1041.) This Court this remanded the proceedings to the trial
court for
7
further consideration on enforcement of the Stipulated Injunction. (1
RA 1-2.)
F. Stutz's Motion to Strike Larkins' Answer
On October 25, 2011, Stutz filed a motion to strike Larkins' answer
based on her continued failure to comply with the April 6, 2009
Stipulated
Injunction. (6 AA 1190-1200a, 1201-1252, 1284-1390.) The trial court
took
the matter under submission, and on March 12, 2012 issued an
extended
briefing schedule allowing a surreply and response. (6 AA 1412-1413.)
G. Larkins' Motion to Modify or Dissolve the Stipulated Permanent
Injunction
While Stutz's motion to strike Larkins' answer was pending in the trial
court, Larkins filed a Motion to Dissolve or Modify the April 6, 2009
Stipulated Injunction. (5 AA 1045-1079.) Stutz opposed on both
substantive
and procedural grounds under Code of Civil Procedure section 533 as
invalid
and without substantive merit. (5 AA 1080-1130.)
the denial of Larkins ' Motion to Modify or Dissolve the Stipulated
Permanent
Injunction.(7AA 1467-1468.) Specifically, the Trial Court stated, "The
Motion of Defendant Maura Larkins to Modify the Injunction is DENIED.
(Code Civ. Proc. § 533)". (7 AA 1468.)
H. The Court Defers Striking Larkins' Answer And Allows Further
Briefing Regarding Compliance
Also on May 30,2012, the Trial Court found, "defendant continues to
post statements on her websites that violate the parties' original
stipulated
injunction." (7 AA 1466-1469.) The trial court identified the offending
statements. (7 AA 1466-1467.) The trial court's minute order
continued:
Although the statements change on defendant's websites, the
results are the same. Defendant continues to willfully violate the
8
stipulated injunction. Defendant does not assert, nor has she
ever argued that her publications do not violate the original
stipulated injunction. The Court of Appeal noted the same.
(Court of Appeal decision, p. 21 ["On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with
, the April 6 stipulated injunction, or the court's August 7 order
enforcing the stipulated injunction."])
(7 AA 1467.)
The trial court's Order also provided:
On the Court's OSC Re: Sanctions, and as directed by the Court
of Appeal, the Court exercises its discretion to punish defendant
for her failure to comply with the original April 6, 2009
stipulated injunction and her failure to comply with subsequent
Court Orders. (See August 7, 2009, October 30, 2009 and
December 11,2009). This ruling applies to the parties original
stipulated injunction, and the Court's ruling herein that
[defendant] continues to violate the original stipulated
injunction.
(7 AA 1468.)
The trial court's May 30, 2012 Minute Order requested further briefing
from the parties regarding Larkins' post-order compliance with the
original
Stipulated Injunction. (7 AA 1467-1468.) This forty-five (45) day
window of
opportunity was presumably given to Larkins by the court to allow time
to
bring the website into compliance and avoid further penalty for
violation of the
Stipulated Injunction. (7 AA 1467-1468.)
I. Larkins' Motion For Reconsideration Of The Denial Of Her
Motion To Modify Or Dissolve The Injunction
Larkins, instead of bringing her website into compliance, filed an
interim motion for reconsideration of the May 30, 2012 order (7 AA
1470-
1489), and three unsuccessful ex parte applications. (7 A~A..1490-
1503 (first
9
ex parte motion to stay); 7 AA 1504a (minute order denyingfirst ex
parte
motion); 7 AA 1513-1528 (second ex parte motion to stay); 7 AA 1529
(minute order denying to reconsider first ex parte motion and denying
second
ex parte motion) 7 AA 1531-1569 (third ex parte motion).) Larkins
alsofiled
an unsuccessful extraordinary writ for alternative review or prohibition
with
thisCourt(8 AA 1827-1878.)
On June 6, 2012 Larkins filed a timely, but procedurally improper
motion for reconsideration. (7 AA 1470-1489.) The motion, made
under Code
Civ. Proc. section 1008, failed to include an affidavit as required by
subdivision (a), and lacked information required to be included by
statute.
(7 AA 1483-1484.) Again, even considering her motion on the merits, it
failed
to contain reference to any new law or fact upon which the trial court
could
reconsider the May 30,2012 order. (See 7 AA 1470-1489.)
J. The Court Strikes Larkins' Answer, And The Instant Appeal
Unfortunately, after May 30; 2012, Larkins failed to take any action to
comply with the trial court's order to bring her websites.into compliance
with
the April 6, 2009 Stipulated Injunction. (8 AA 1618-1703.) Accordingly,
Stutz
filed its brief regarding the status of Larkins' website. (Id.)
After considering the further briefing from both parties regarding
Larkins' compliance with the Stipulated Injunction, the Trial Court
issued an
order granting Stutz's motion and striking Larkins' answer on August
10,
2012. (9 AA 2034-2040.) The Court found "Defendant [Larkins] failed
to
comply with the Court's Orders of August 7, 2009 and March 10,2010
as it
applies to the parties' original Stipulated Injunction." (9 AA 2037.) The
Trial
Court also found "Defendant [Larkins J has continued to publish and
republish
statements in violation of the April 6, 2009 Stipulated Injunction [...J as
late
as June 5, 2012 and July 5, 2012." (9 AA 2038.) Stutz waived payment
of
10
sanctions. (9 AA 2037-2038.)
Larkins noticed the instant appeal on September 4, 2012; appealing
only
the Minute Order denying her motion to modify or dissolve the
stipulated
injunction, which, was entered on May 30, 2012 by the Trial Court. I
(10 AA 2367.)
III. STANDARD OF REVIEW
A. Limited Review On Appeal From Order Denying Motion to
Dissolve Injunction
On appeal from an order refusing to dissolve an injunction, appellate
review is limited to issues newly arising from the motion to dissolve the
injunction and does not extend to issues that could have been raised
on appeal
from the injunction itself. (Malatka v. Helm (2010) 188 Cal.App.4th
1074,
1081-1084; The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch.
2-B ~
2:103.1.)
Abuse of Discretion Standard
The abuse of discretion standard applies to whether to grant or deny a
permanent injunction. (Horsford v. Board of Trustees of Calif. State
Univ.
B.
(2005) 132 Cal.App.4th 359, 390.) And similarly, to a trial court's
decision
regarding whether to dissolve a permanent injunction. (North Beverly
Park
Homeowners Ass 'n v. Bisno (2007) 147 Cal.App.4th 762, 776.)
c. Appellant's Burden to Prove "a clear case of abuse" And "a
miscarriage of justice"
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a
clear
I After the notice of this appeal and the Appellant's Opening Brief
were filed, Larkins also appealed from the final judgment in the case.
This
Court denied Stutz's motion to consolidate the two appeals.
11
case of abuse" and "a miscarriage of justice." (Blank v.Kirwan (1985)
39 CaL3d 311,331; Denham v. Super. Ct. (Marsh & Kidder) (1970) 2
Ca1.3d
557, 566.) On appeals challenging discretionary trial court rulings, it is
appellant's burden to establish an abuse of discretion. (Blankv.
Kirwan, supra,
39 Ca1.3d at 331; Denham, supra, 2 Ca1.3d at 566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only
when,
in its exercise, the trial court "exceeds the bounds of reason, all of the
circumstances before it being considered." (Denham, supra, 2 CaL3d
at 566
(internal quotes and citation omitted); Walker v. Super. Ct. (Residential
Construction Enterprises) (1991) 53 Ca1.3d 257; 272, 279.)
D. Constitutional Issues Should Be Considered Only If Absolutely
Necessary And There Are No Other Dispositive Grounds
Constitutional issues ordinarily will be resolved on appeal only if
"absolutely necessary" and not if the case can be decided on any
other ground.
(Palermo v. Stockton Theatres, Inc. (1948) 32 CaI.2d 53,65; Kollander
Const.,
Inc. v. Super. Ct. (Alvarez) (2002) 98 Cal.AppAth 304, 314
(disapproved on
other grounds inLe Francois v. Gael (2005) 35 Ca1.4th 1094, 1107,
fn. 5 ("We
are constrained to avoid constitutional questions where other grounds
are
available and dispositive").)
IV. ARGUMENTS
A. Larkins Stipulated To An Injunction Against Specific Types Of
Defamation To Avoid A Jury Trial On Damages
The Court record shows that Ms. Larkins agreed to refrain from
publishing certain statements about Plaintiff on April 6, 2009, over four
years
ago, as the Court was waiting to bring up a jury for trial for damages.
(1 RT 85; 6 AA 1287.) A Motion for Summary Adjudication on
defamation
12
had already been granted. (2 AA 401;6 AA 1287; 1 RT 6-14.)
Defendant
Larkins stated on the record, under questioning by the Court, that she
understood and agreed with the terms of the injunction. (1 RT 91-92.)
Larkins now claims that the Court's interpretation ofthe injunction was
unconstitutionally broad in violation of her First Amendment right to
free
speech. As stated in the People ex rel Bill Lockyer v. RJ Reynolds
Tobacco
Company (2004) 116 Cal.AppAth 1253, "Reynolds's contention that the
sanction award improperly punished Reynolds's First Amendment
communication with adult smokers is also unpersuasive. Reynolds was
sanctioned not for its constitutionally protected communication with
adult
smokers but instead for its violation of MSA [settlement agreement],
subsection III(a) by targeting youth in its tobacco advertising." (ld. at
1288.)
Here, Larkins is subject to sanctions not for protected First Amendment
speech, but rather has continued making libelous statements in
violation of a
court order to which she stipulated.
In this case, the stipulated injunction enjoined and restrained Larkins
from "continuing to publish or republishing by any method or media,
including
but not limited to all electronic data, web sites and webpages, 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
violations of law, unethical conduct, lack of professional competence or
intimidation." (2 AA467-468.)
All of the statements set forth above violate the stipulated injunction
and are libelous. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representationto the eye, which
exposes
any person to hatred, contempt, ridicule, or obloquy, or which causes
him to
13
be shunned or avoided, or which has a tendency to injure him in his
occupation. (Civil Code, § 45 (emphasis added).)
Charges of unethical conduct against attorney may constitute actionab
le
defamation. (Katz v. Rosen (1975) 48 CaLA•.pp.3d 1032, 1036.) A fair
construction of Civil Code section 46 requires a holding that calling an
attorney a "crook" is equally actionable as slander per se without proof
of
special damage. tAlbertiniv. Schaefer (1979) 97 Cal.App.3d 822.)
Imputing
dishonesty or lack of ethics to an attorney is also actionable under
Civil Code
section 46 because of the probability of damage to professional
reputation.
(Albertini, supra, 97 Cal.App.3d at pp. 829-830; citing Katz v. Rosen
(1975)
48 Cal.App.3d 1032.) A newspaper publication, involving a cartoon and
imputing hypocrisy and habitual alteration of records by plaintiff, an
attorney
at law, was held to be held libelous per se. (Newby v. Times-Mirror Co.
(1920)
46 Cal.App. 110, 131.) An attorney must not threaten to present
criminal,
administrative, or disciplinary charges to obtain an advantage in a civil
dispute.
(Rules of Professional Conduct, Rule 5-1OO(A).)The statements made
against
Plaintiff allege unprofessional conduct and are therefore libelous.
This Court of Appeal previously stated: "On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with the April
6th
stipulated injunction or the Court's August 7 order enforcing the
stipulated
injunction. On remand, the trial court may consider whether to exercise
its
statutory and inherent authority to coerce compliance with the April 6 or
August 7 orders and/or to punish Larkins for her failure to comply with
said
orders in a manner consistent with the law and the views expressed in
this
opinion." (7 AA 1468.)
The trial court did not abuse its discretion when it refused to modify or
dissolve the stipulated injunction. Rather, it evaluated Larkins' lack of
14
compliance with the injunction, and the lack of new law or facts which
would
warrant modification or dissolution. Based on Larkins history of
refusing to
obey court orders, and the status of the website at the time, the trial
court was
well within its discretion to refuse her request under Code Civ. Proc.
section
533.
B. Larkins' Notice of Appeal is Untimely Because An Invalid Motion
For Reconsideration Does Not Extend Time To Appeal
Larkins motion to dissolve or modify the injunction failed to present
any new law or fact before the trial court as required by Code Civ.
Proc.
section 533 and was properly denied. (7 AA 1468.) Larkins then filed
an
invalid motion for reconsideration, lacking an affidavit and all
information
required by Code Civ. Proc. section 1008(a). (1AA 1470-1489; Code
Civ.
Proc. § 1008(a).) As such, the motion was an invalid and did not
extend the
time to appeal under Cal. Rules of Court, Rule 8.108(e).
L Larkins' June 6, 2012 Motion For Reconsideration Was
Procedurally Defective And Invalid
Larkins' motion for reconsideration failed to comply with the,
procedural requirements of Code of Civ, Proc. section 1008(a).
Specifically,
it was invalid when filed and served because it failed to contain an
affidavit in
support of the motion, it further failed to contain any of the information
required under section 1008, subdivision (a). (See Branner v. Regents
of
University of California (2009) 175 Cal.App.4th 1043, 1048.)
Section 1008, subdivision (a), provides that a party may make an
application to reconsider an order within 10 days after service on the
party of
written notice of entry ofthe order, and that: "The party making the
application
shall state by affidavit what application was made before, when and to
what
judge, what order or decisions were made, and what new or different
facts,
15
circumstances, or law are claimed to be shown." (Code Civ. Proc. §
1008(a);
Branner v. Regents of University of California (2009) 175 Cal.App.4th
1043,
1048.)
Although Larkins served a declaration with her motion, it consisted of
one page, and contained only the following statements:
I, the undersigned, declare:
1. Iam the Defendant in pro per herein.
2. The Exhibits attached are true and accurate copies of the
documents described, and the documents are correctly
and truthfully described.
3. I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
(7 AA 1483-1484.) Even if this Court were to find a declaration
sufficient in
lieuof an affidavit, it still contains numerous defects, and lacks all
information
required to be stated by the moving party in the Code Civ. Proc. §
1008, subd.
what judge, what order or decisions were made, and what new or
different
facts, circumstances, or law are claimed to be shown. (7 AA 1483-
1484.) In
light of these deficiencies, "we must keep in mind that the requirement
that a
motion to reconsider be valid at the time it is served and filed serves
the
purpose of precluding the improper and uncertain extension of the
time to
appeal." (Branner v. Regents of University of California (2009)
175 Cal.App.4th 1043, 1049.)
III
16
2. Larkins' Invalid Motion For Reconsideration Did Not
Extend The Time To File A Notice Of Appeal Under Cal.
Rules of Court 8.104 and 8.108(e).
Notice of appeal from a superior court order must be filed within the
applicable time period set forth in Cal. Rules of Court, Rule 8.104(a). If
the
order is entered in the minutes, and theminute order does not require
a written
order, the order is "entered" on the date of its entry in the permanent
minutes
and is appealable. (Cal. Rules of Court, Rule 8.1 04( c)(2); Strathvale
Holdings
v. E.B.H (2005) 126 Cal.AppAth 1241, 1248; Walton v. Mueller (2009)
180 Cal.AppAth 161, 167.)
For the instant appeal, this deadline was within 60 days of the entry
date
of an appealable order entered in the minutes. (Cal. Rules of Court,
Rule 8.104(a)(1)(A); Cal. Rules of Court, Rule 8.104{c)(2).) The
minute order
in question here was filed on May 30, 20l3, and triggered the sixty day
timer
for filing a notice of appeal, which, expired July 29, 2012. Larkins did
not file
a notice of appeal of the May 30, 2012 minute order until September
4,2012.
(10 AA 2367.)
If any party serves and files a valid motion for reconsideration of an
appealable order under Code Civ. PrDC. section 1008, subd. (a), the
time to
appeal from that order is extended for all parties. (Cal. Rules of Court,
,
17
Rule 8.108(e) (emphasis added).) The motion for reconsideration
extends the
appeal deadline until thirty days after the superior court clerk or a
party serves
an order denying the motion or notice of entry of that order. (Cal.
Rules of
Court, Rule 8.108( e)( 1).) However, the motion must have complied
with all of
the Code Civ. Proc. section 1008 subd. (a) procedural requirements at
the time
it was initially filed. (Branner, supra, 175 Cal.App.dth at pp. 1047-1049;
The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch. 3-C ,-r,-r 3:
92-94.)
"[T]he requirement as to the time for taking an appeal is mandatory;
and
the court is without jurisdiction to consider one which has been taken
subsequent to the expiration of the statutory period. [Citations.] [11 In
the
absence of statutory authorization, neither the trial nor appellate
courts may
,extend or shorten the time for appeal [citation], even to relieve against
mistake,
inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be
conferred upon the appellate court by the consent or stipulation of the
parties,
estoppel, or waiver." (Branner, supra, 175 Cal.App.4th at p. 1049,
citing,
Estate a/Hanley (1943) 23 Ca1.2d 120,122-123, (internal citations
omitted);
see also Cal. Rules of Court, Rule 8.104(b) ("no court may extend the
time to
file a notice of appeal").)
"The purpose of this requirement is to promote the finality ofjudgments
by forcing the losing party to take an appeal expeditiously or not at all.
18
[Citation.]" (Branner, supra, 175 Cal.AppAth at p. 1049, citing,
Silverbrand
v. County of Los Angeles (2009) 46 Ca1.4th 106, 113.) The Branner
court
viewed a motion for reconsideration which did not comply with the
affidavit
requirement as invalid and thus did not extend time to appeal. As
Larkins
motion did not contain an affidavit, and the declaration was woefully
insufficient, her appeal is untimely.
C. Larkins Motion To Modify Or Dissolve The Original Stipulated
injunction Presented No New Law Or Facts Under Code Civ. Proc.
§ 533 And The Time To Appeal The Original Order Has Expired
Larkins is correct that an appeal may be taken from an order granting
or dissolving an injunction, or refusing to grant or dissolve an
injunction.
(Code Civ. Proc. § 904.1 (a)(6).) However, on appeal from an order
refusing
to dissolve an injunction, appellate review is limited to issues newly
arising
from the motionto dissolve the injunction and does not extend to
issues that
could have been raised on appeal from the injunction itself. (Malatka v.
Helm
(2010) 188 Cal.AppAth 1074,1081-1084.)
In Malatka, the plaintiff obtained a restraining order against a neighbor.
(Malatka, supra, 188 Cal.AppAth at 1079-1081.) The neighbor did not
appeal,
but later moved to modify the order. (Ibid.) The court modified the
order,
allowing the neighbor to get within 10 rather than 25 feet of the plaintiff.
19
"".
(Ibid.) The neighbor appealed. (Ibid.) "[T]o prevent both circumvention
of
time limits for appealing and duplicative appeals from essentially the
same
ruling ... on an appeal from an appealable ruling, an appellate court
will not
review earlier appealable rulings." (Id. at 1082.)
Thus, courts have allowed an appeal of a modification of an injunction,
but only insofar as it raises issues that could not have been raised in
an earlier
appeal. (Id. at p. 1083.) For example, in Chico Feminist Women's
Health
Center v. Scully (1989) 208 Cal.App.3d 230, the appellants sought to
chalienge
not only the modifications of the injunction, but the unmodified parts of
the
injunction as well. The court concluded, "We perceive no reason why
defendants should be able to use the order of April 25, amending the
injunction, as an artificial springboard from which to launch an appeal
that
could have been taken earlier." (ld. at p. 251.)
Similarly, in Malatka, the defendant asserted that an order refusing to
dissolve an injunction is appealable. The court there rejected the
obvious
subterfuge, explaining: "Without conflating restrictions on appealability
and
reviewability, we conclude that, to the extent the current appeal from
an order
implicitly refusing to dissolve a restraining order presents issues that
could
have been raised in an appeal from the original restraining order,
those issues
are not reviewable in this appeal. On the other hand, to the extent the
motion
to dissolve was dependent on new facts and law, such issues are
reviewable."
(Malatka, supra, 188 Cal.App.4th at 1084.)
Larkins presents absolutely no new facts or new law. As such, she has
failed to carry her burden showing that there has been a material
change in the
facts or law upon which the injunction was granted, or that the ends of
justice
would be served by the modification or dissolution of the injunction, as
required. (Civ. Proc. Code § 533.) Here, unlike Malatka, there is not
even a
plausible ground for review because the court did not modify the
injunction.
Before us is the very same injunction Larkins could have appealed
almost three
years earlier. Larkins, in her motion to the trial court under section
533, failed
to identify new facts or law which would support such a modification,
nor
were any cited in her subsequent motion under Code Civ. Proc. section
1008(a).
This Court 'has no discretion to relieve an appellant from the
consequences of delay in filing a notice of appeal. (Chico Feminist
Women's
Health Center v. Scully (1989) 208 Cal.App.3d 230,254.) Because
appellant
did not perfect a timely appeal from the order granting the original
injunction,
the court is left without jurisdiction to review the trial court's original
order
granting the injunction. (Cal. Rules of Court, rule 8.104(a), (b);
Malatka,
supra, 188 Cal.App.4th at 1085-1087.)
20
21
D. The Stipulated Injunction Against Defamation Is Constitutional
Because Larkins Knowingly Agreed Not To Defame Stutz And
Agreed To Be So Enjoined
As a preliminary matter, Larkins' citations to cases involving
preliminary and permanent injunctions without agreement by the
parties are
unhelpful and inapposite. The California Supreme Court's decision in
Balboa
Island Village Inn Inc. (2007) 40 Ca1.4th 1141, and this Court's
decision in
Evans v. Evans (2008) 162 Cal.App4th 1157, both dealt with
injunctions
which were not stipulated to by the parties. Neither case discussed a
stipulated
injunction which was agreed upon in front of a judge, in court, with a
court
reporter present. In fact, Stutz is not aware of any reported case
dealing
squarely with this issue, specifically, in the context of defamation and a
knowing waiver. Generally, however, constitutional rights may be
waived.
1. A Knowing Waiver Of Constitutional Rights Is Valid
Nothing in the Stipulated Injunction is a waiver of protected First
Amendment speech, as no person has a privilege to defame another.
However,
"it is possible to waive even First Amendment free speech rights by
contract."
(ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d
307,319;
accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir.
2002)
304 F.3d 927, 935, fn. 9.)
,
22
It is a strained analysis at best to construe the stipulated injunction, the
admonishments to Larkins, and her prior lawsuits for defamation, as
anything
but a knowing waiver. (See Sanchez v. County of San Bernardino
(2009)
176 Cal.App.4th 516, 528 (the court could see no way to construe the
confidentiality provision except as a waiver of whatever rights the
County had
.to disclose the circumstances of Sanchez's resignation).)
2. The Stipulated Permanent Injunction Was Mutually Agreed
Upon And Discussed On the Record With Judge Hayes
Larkins states that she does not understand the injunction or its terms,
a statement contradicted by the record. (1 RT 91-94.) During the April
6, 2009
hearing on the stipulated injunction, defendant was admonished by the
Court
as rights she was giving up. (I RT 91-94.)
Pursuant to standard settlement procedure the trial court clearly
questioned Larkins regarding the terms of the stipulation, her
understanding,
rights, and ability to seek counsel. (I RT 91-94; 5 AA 1083-1084.)
Larkins
stated that she understood the stipulated agreements terms and
agreed to be
bound thereby. (Id.) Larkins further clearly waived the right to seek
counsel
and stated she wished to continue in propria persona on the record,
before the
Court signed the stipulated permanent injunction. (Id.)
III ,
'"
23
Larkins now claims extrinsic fraud was committed against her by
Plaintiffs and the Court; this claim is patently untrue. The stipulated
injunction
was reached as a partial settlement, in order for the defendant to
avoid a jury
trial on the issue of damages that day. Larkins agreed to the injunction
in order
to avoid the risks of proceeding on that issue.
3. This Court's Prior Ruling Indicated The Injunction Was
Valid, And The Trial Court Could Coerce Defendant's
Compliance
The Court of Appeal in its decision on August S, 2011, did not hold the
April 6, 2009 stipulated injunction unconstitutional, and specifically
noted it
was not subject to appeal. (See S•AA 1041.) Rather, the appellate
court struck
the language expanding the scope of the stipulated injunction ordered
on
December 11, 2009. (ld.) This Court specifically stated that on
remand, the
trial court may consider whether to exercise its statutory and inherent
authority
to coerce compliance with the April 6, 2009 order. (Id.)
The April 6, 2009 injunction remains in effect, and was not touched
upon by the Court of Appeal in its decision. In fact, contrary to Larkins
assertions, the this Court's prior decision in favor did not change, rule
upon,
or effect the constitutionality of the April 6, 2009 stipulated injunction.
(See
id.) Thus, Larkins made no showing of material change with respect to
any
24
circumstance.
V. CONCLUSION
Respectfully, for the foregoing reasons, this court should affirm the
order denying Larkins' motion to dissolve the stipulated injunction.
DATED: June 3,2013 ASTPUroTfZesAsRioTIANcO~.oSrr'pHOt. nF.
F&HOLTZ
eA
By: /
ay J. Artiano I Ijames F. Holtz
Attorneys' fof Plaintiff STUTZ ARTIANO
SHINOFFh HOLTZ, APC
,
,
DATED: June 3, 2012
CERTIFICATE OF WORD COUNT
The text of this Respondent's Brief consists of 6,201 words within its
text and footnotes as counted by the Corel Word Perfect version 12.0
word
processing program used to generate the brief.
,
25
Maura Larkins
1935 Autocross Court
EI Cajon, CA 92019
Defendant In Pro Per
San Diego Superior Court
Appeals Division
220 W. Broadway, Rm. 3005
San Diego, CA 92101
Stutz Artiano Shinoff & Holtz, APe v. Maura Larkins, et al.
Fourth District Case No. D062738
San Diego Superior Court Case No. 37-2007-00076218-CU-DF-CTL
PROOF OF SERVICE
I am and was at all times herein mentioned over the age of 18 years
and not a party
to the action in which this service is made. At all times herein
mentioned Ihave been
employed in the County of San Diego in the office of a member of the
bar of this court at
whose direction the service was made. My business address is 2488
Historic Decatur
Road, Suite 200, San Diego, California 92106-6113.
a
On June -J-, 2013, Iserved the following document(s):
RESPONDENT'S BRIEF; RESPONDENT'S APPENDIX IN LIEU OF
CLERK'S
TRANSCRIPT (VOL. 1 OF!); WORD COUNT; CERTIFICATE OF
INTERESTED ENTITIES OR PERSONS '- SUPPLEMENTAL
CERTIFICATE
BY MAIL by depositing in the United States Postal Service mail box at
2488
Historic Decatur Road, Suite 200, San Diego, California 92106, atrue
copy thereof
in a sealed envelope with postage thereon fully prepaid and
addressed as follows:
BY ELECTRONIC SERVICE On the date indicated above, Iserved from
my
electronic address of jwolber@stutzartiano.com the foregoing
documents
described above on designated recipients through electronic
transmission of said'
documents.
California Supreme Court
Submitting an electronic copy of the
brief on the Court of Appeal will
.satisfy the requirements for service on
the Supreme Court under rule
8.212(c)(2).
Court of Appeal of California
Fourth Appellate District, Division One
Symphony Towers
750 B Street, Suite 300
San Diego, California 92101
email:
D062738_RB _Stutz (searchable .pdf; max 5MB)
G:IDATAI701114IPLISOI40385.WPD
I declare under penalty of perjury under the laws of the State of
California that the
foregoing is true and correct. ,~
ExecutedonJune3,2013at s+/gO'~ifomia. ../
. /~~1~ JE~ 0 BER ()
G:\DATAI701114IPLISOI40J85.WPD