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Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes,
Judge. Reversed and remanded.
I. INTRODUCTION
The law firm of Stutz Artiano Shinoff & Holtz (the Stutz Firm) filed a complaint against Maura
Larkins alleging that Larkins had published several defamatory statements about the firm
and its lawyers on several Web sites that Larkins maintained. The trial court granted the
Stutz Firm's motion for summary adjudication, finding that the statements at issue were
defamatory as a matter of law.
Prior to a trial on the issue of damages, the parties reached a settlement. Pursuant to that
settlement, the trial court entered a stipulated permanent injunction that
prohibited Larkins from publishing statements accusing the Stutz Firm or its
lawyers of illegal conduct or violations of law, unethical conduct, lack of
professional competence, or intimidation. A few months later, in response to a motion
filed by the Stutz Firm, the trial court ordered Larkins to remove from her Web sites several
statements that the court found to be in violation of the injunction. A couple of months later,
the Stutz Firm filed another motion claiming that Larkins was continuing to publish
statements that violated the terms of the stipulated injunction. The trial court found that
Larkins had continued to violate the stipulated injunction, and that she was unwilling to
modify her Web sites in good faith. The trial court modified the stipulated injunction
sua sponte to prevent "[Larkins] from making any mention of [the Stutz Firm] or
any of its attorneys, past or present."
On appeal, Larkins contends that the trial court's modified injunction constitutes an
unconstitutional prior restraint, in violation of her constitutional right to free speech under
both the state and federal Constitutions. We agree that the modified
injunction is clearly an unconstitutional prior restraint and
that it must be reversed. We remand the matter to the trial court to allow the
court to consider whether to exercise its authority to coerce compliance with the stipulated
injunction and/or to punish Larkins for her failure to comply with the stipulated injunction, in
a manner consistent with the law and the views expressed in this opinion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Stutz Firm's first amended complaint
In July 2008, the Stutz Firm filed a first amended complaint against Larkins that contained
causes of action for defamation per se, declaratory relief, and injunctive relief. The Stutz
Firm alleged that Larkins had created a Web site known as the "San Diego Education
Report," on which Larkins had made numerous specific defamatory statements concerning
the Stutz Firm and its attorneys. The Stutz Firm sought damages, including punitive
damages, a declaration that Larkins had published defamatory statements concerning the
Stutz Firm, and a "preliminary and/or permanent injunction preventing [Larkins] from
continuing to publish or republishing those statements which the court declares to be
defamatory."
B. The trial court grants the Stutz Firm's motion for summary adjudication
In October 2008, the Stutz Firm filed a motion for summary adjudication in which it argued
that various statements on Larkins's Web sites were defamatory as a matter of law. The
Stutz Firm requested that the court "declare that certain statements on [Larkins's] [Web
sites] are defamatory and enjoin [Larkins] from publishing these statements."
In March 2009, the trial court entered an order granting the Stutz Firm's motion for summary
adjudication. In its order, the court found that the Stutz Firm had established its claim for
defamation per se as a matter of law, noting that the Stutz Firm had established that none of
the statements on Larkins's Web sites concerning the Stutz Firm were true. The court also
ruled that the Stutz Firm was entitled to an injunction precluding Larkins from publishing "the
defamatory statements alleged in [the Stutz Firm's] first amended complaint." The court
stated that "the case [would] proceed to trial on the amounts of compensatory and punitive
damages to be awarded to [the Stutz Firm] according to proof."
C. The stipulated injunction
On April 6, 2009, the day set for the trial on damages, the parties reached a settlement of
the case. Pursuant to the parties' stipulation, the court entered a permanent injunction that
states in relevant part:
"1. . . . [The Stutz Firm][ ] is entitled to an injunction enjoining and restraining [Larkins] from
continuing to publish or republishing by any method or media, including but not limited to all
electronic data, Web sites and Web pages, the defamatory statements alleged in [the Stutz
Firm's] first amended complaint pertaining to [the Stutz Firm] and any of its lawyers past or
present, and future publication of statements with regard to [the Stutz Firm] and its lawyers
accusing illegal conduct or violations of law, unethical conduct, lack of professional
competence or intimidation.
"2. [Larkins] shall comply with, complete the removal of, and/or undertake all necessary
steps for the removal of the defamatory statements as specified above no later than ten (10)
days from the date of this order."
D. The trial court grants the Stutz Firm's motion to enforce the stipulated injunction
In July 2009, the Stutz Firm filed a motion to enforce the permanent injunction. In its brief,
the Stutz Firm claimed that Larkins continued to display on her Web sites numerous
statements that were in violation of the April 6 injunction. Among the statements on
Larkins's Web sites that the Stutz Firm claimed violated the injunction was, " 'One of Daniel
Shinoff's [an attorney at the Stutz Firm] specialties is destroying the lives of parents who
complain that their kids aren't getting the right education.' " The Stutz Firm also claimed that
Larkins violated the injunction by posting the following statements on her Web sites:
"'Attorneys who have helped cover up events in schools are in charge of training
both new board members and new school attorneys,' "
and,
" 'Dan Shinoff trains board members and employees."
Larkins filed an opposition in which she argued that the
statements at issue did not violate the terms of the
injunction.
On August 7, the trial court held a hearing on the Stutz Firm's motion.
At the hearing, Larkins stated that the intent of the parties in entering into the
stipulated injunction was that, "I would still be able to report the facts, such as [the
Stutz Firm] did this action. I would simply not be able to opine that that action was
illegal, unethical, incompetent or intimidating."
Larkins stated that she needed "clarification" of the scope
of the injunction as to "where the limit is."
The Stutz Firm's attorney argued, "[T]he stipulated injunction prohibits accusations of
certain types of conduct. It's not just magic words. You can't replace one word with the
other, and the court correctly grasped that."
Near the conclusion of the hearing, the trial court stated:
"Okay. Let me make it clear for you. You can't use language that states or implies
illegal, unethical, incompetent, or intimidating tactics on the part of the law firm.
[¶] Now, I know what you're asking me to do, and that is give to you a shopping list
of what you can say and what you can't say. Listen to me. No, I know you're shaking
your head, but you have to listen because we're at the point where I'm going to rule. [¶] . . .
If you have questions about what you can or cannot say, I
can only suggest that you run them past the filter of
perhaps someone who can give you guidance in this
area . . . ."
On August 7, 2009, the trial court granted the Stutz Firm's motion to enforce the April 6
injunction. The court found that "the disputed statements are in violation of the permanent
injunction entered on April 6, 2009. [Larkins] is ordered to remove all the disputed
statements from her [Web sites] within 48 hours."
E. The trial court's modification of the injunction
In October 2009, the Stutz Firm filed a motion to strike Larkins's answer and enter a default.
In its motion, the Stutz Firm maintained that Larkins was continuing to publish statements
that violated the stipulated injunction and the court's August 7 order. For example, the Stutz
Firm noted that the following statement appeared on Larkins's Web sites: " 'One of Daniel
Shinoff's specialties is planning legal tactics against parents who complain that their kids
aren't getting the right education.' " The Stutz Firm also claimed that Larkins violated the
injunction by posting on her Web sites, " 'Attorneys who have helped schools avoid
revealing events in schools are in charge of training both new board members and new
school attorneys,' " in conjunction with the statement,
" 'Dan Shinoff trains board members and employees.' " Larkins opposed the motion, again
contending that the statements at issue did not violate the stipulated injunction.
The trial court held a hearing on October 30 at which the court explained that it intended to
modify the stipulated injunction to prevent Larkins from making "any mention" of the Stutz
Firm on her Web sites. The court reasoned:
"In formulating this injunction, it was the court's intention to eliminate reference to
accusations of illegal, unethical, incompetent or intimidating conduct on the part of [the Stutz
Firm] from any [Web site] maintained by [Larkins].
"We've been back in court several times on the language that still appears on the [Web
sites]. And unfortunately, I feel like I'm chasing something that I can't get my hands around,
because every time I rule that [Larkins] shouldn't use one phraseology, she simply switches
to another in an . . . apparent attempt to circumvent the Court's order.
"And it comes to a point where we really have to stop this and get to the meat of the
allegations.
"You can't imply or insinuate any of these things. And what I have seen is the continued
attempt to do just that.
"So what I intend to do is modify the injunction to prevent any mention of [the Stutz Firm] on
[Larkins's] [Web sites].
"And I'm doing that not in an attempt to foreclose or eliminate [Larkins's] right to free
speech, but because it is crystal clear to me at this point that she is unable or unwilling to
modify her [Web sites] in any good-faith attempt to remove reference to that law firm.
"So we're cutting it off at this point. No more reference to the law firm.
"What I'm trying to do is not get to the point where I have to enter default and strike an
answer and award damages, assuming they're proved up, in the default process. But right
now, what I'm trying to do is make a bright-line rule that there's no way anybody can
misinterpret.
"Just don't mention them. They're out of it. And if you can't do that, then I'll look at it again,
but this is the last time I'm coming back on this."
On December 11, 2009, the trial court entered the following order, based on the October
30th hearing:
"1. The Court's April 6, 2009 Order on Permanent Injunction ('Injunction'), stipulated to by
the parties . . . enjoined and restrained [Larkins] from publishing accusations of illegal
conduct or violations of law, unethical conduct, lack of professional competence or
intimidation pertaining to [the Stutz Firm] and any of its lawyers, past or present.
"2. On August 7, 2009, at 10:30 a.m., [the Stutz Firm's] Motion to Enforce Permanent
Injunction Against [Larkins] came on regularly for hearing before this Court. The Court
granted [the Stutz Firm's] motion, finding that the disputed statements challenged therein
were in violation of the Injunction and ordering [Larkins] to remove all the disputed
statements from her [Web sites] within 48 hours.
"3. The Court finds that [Larkins] has not complied with the Injunction or this Court's orders
and continues to attempt to circumvent the Injunction. The Court further finds that [Larkins]
has been unwilling to modify her [Web sites] in good faith.
"4. Due to [Larkins's] continued circumvention of this Court's orders, the Court hereby
modifies the Injunction to prevent [Larkins] from making any mention of [the Stutz Firm] or
any of its attorneys, past or present. [Larkins] is enjoined and restrained from continuing to
publish or republishing, by any method or media, including but not limited to all electronic
data, [Web sites] and Web pages, any statements pertaining to [the Stutz Firm] and any of
its lawyers, past or present, and future publication of statements with regard to [the Stutz
Firm] and any of its lawyers. [Larkins] is ordered to remove all mention of [the Stutz Firm]
and any of its lawyers, past or present, from her [Web sites] or [Web sites] under her control
within twenty days."
F. The trial court's order holding Larkins in contempt and requiring her to pay $3,000 in
sanctions
In January 2010, the Stutz Firm filed an ex parte application to enforce the modified
injunction, to hold Larkins in contempt, and to impose sanctions. Larkins filed an
opposition. On January 21, the court entered an order to show cause as to why Larkins
should not be held in contempt, and set a hearing date of March 5, 2010.
In February 2010, the Stutz Firm filed a motion and brief in support of the order to show
cause. In its brief, the Stutz Firm argued that Larkins was in contempt of the court's modified
injunction in that numerous references to the Stutz Firm and its attorneys remained posted
on Larkins's Web sites. The Stutz Firm requested that the court "take some action [against
Larkins], including sanctions, a daily fee, an appropriate contempt punishment (including jail
time), striking her answer, or any combination of these, for willfully violating the Court's
orders." (Fn. omitted.) The Stutz Firm requested that the court award it $6,547.50 in
attorney fees that it incurred in connection with its ex parte application and motion. Larkins
filed an opposition to the motion in which she argued that the court should not enforce the
modified injunction because the injunction was "vastly unconstitutional."
On March 5, the court heard argument on the order to show cause. On March 10, the trial
court found Larkins in contempt and ordered her to pay $3,000 in sanctions. The trial court
reasoned:
"The Court finds defendant Maura Larkins has continued to violate the Court's order
resulting from the parties' stipulation of April 6, 2009. The Court finds [Larkins] is currently
in violation of the Court's further order of December 11, 2009. [Larkins] implicitly concedes
she is in violation of the Court's orders. [Larkins] argues the orders are unconstitutional,
illegal and impossible to comply with. [Larkins's] position is based in part, on her
misunderstanding of constitutional law. Nonetheless, [Larkins][ ] failed to timely challenge
those orders, and despite the fact that the April order resulted from the parties' stipulation,
[Larkins] continues to refuse to comply with the order."
The trial court ordered Larkins to pay $3,000 in sanctions to the Stutz Firm for fees and
costs incurred in "enforcing the injunction." In addition, the court stated:
"If [Larkins] does not bring her Web site[s] into compliance with the Court's previous orders
by April 9, 2010 and/or fails to timely pay the sanctions ordered, the Court will be forced to
strike [Larkins's] answer and take her default. In which case, [the Stutz Firm] will be free to
obtain a judgment against [Larkins] for damages incurred as a result of [Larkins's] violations
of the injunctions."
G. Larkins's appeal from the trial court's order modifying the injunction
On March 18, 2010, Larkins timely appealed from the trial court's December 11, 2009
order.
III.
DISCUSSION
A. The Stutz Firm's motion to dismiss the appeal is denied
The Stutz Firm filed a motion to dismiss Larkins's appeal on the ground that Larkins had
repeatedly willfully disobeyed the trial court's orders in this case, including the order at issue
in this appeal.
In support of its request, the Stutz Firm noted that the Supreme Court stated in MacPherson
v. MacPherson (1939) 13 Cal.2d 271, 277 that "[a] party to an action cannot, with right or
reason, ask the aid and assistance of a court in hearing his demands while he stands in an
attitude of contempt to legal orders and processes of the courts of this state. [Citations.]"
The Stutz Firm also cited TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 378-379, in which
the Court of Appeal dismissed an appeal based on the appellant's unabated willful failure to
comply with a court order to answer postjudgment interrogatories, and Alioto Fish Co. v.
Alioto (1994) 27 Cal.App.4th 1669, 1685, in which the Court of Appeal stayed an appeal for
30 days to allow the appellants to demonstrate that they had complied with a trial court's
postjudgment order. The Alioto court also indicated that the appeal would be dismissed if
the appellants failed to timely demonstrate compliance with the trial court's order. (Id. at p.
1691.)
We deny the Stutz Firm's motion to dismiss, for two reasons. To begin with, all of the cases
that the Stutz Firm cites involve litigants who remained in contempt of orders issued by a trial
court. The Stutz Firm does not argue in its motion that Larkins remains in contempt of the
trial court's order. Thus, even under the cases that the Stutz Firm cites, there is no basis to
dismiss Larkins's appeal.
Second, even assuming that Larkins remains in contempt of the trial court's modified
injunction, we decline to dismiss her appeal since Larkins is challenging the constitutional
validity of that injunction in this appeal from the trial court's order modifying the injunction.
Such a dismissal would be wholly inconsistent with the fact that in California a party may
raise a challenge to the validity of an injunction for the first time in a contempt proceeding to
enforce the injunction. (People v. Gonzalez (1996) 12 Cal.4th 804, 818-819 (Gonzalez).)
California's law concerning challenges to injunctive orders grew "out of a concern to protect
the constitutional rights of those affected by invalid injunctive orders . . . ." (Id. at p. 818.)
Larkins has brought a direct challenge to the validity of the trial court's order on the ground
that it violates her right to free speech under the federal and state Constitutions. Her failure
to comply with that same order cannot serve as a basis for dismissing the very appeal in
which she seeks to vindicate her constitutional rights.
B. We reject the Stutz Firm's contention that this court should not consider the merits of
Larkins's constitutional claim
The Stutz Firm contends that Larkins forfeited her right to object to the December 11
modified injunction by failing to raise an objection at the October 30 hearing at which the
trial court indicated that it intended to order such a modification. We disagree.
The trial court indicated its intent to modify the injunction for the first time, sua sponte, at the
October 30 hearing. Larkins thus could not have anticipated prior to the hearing that the
trial court would modify the injunction. Further, before the trial court entered the December
11 order modifying the injunction, Larkins filed a written objection in which she claimed that
the proposed modification would violate her constitutional right to free speech. Accordingly,
we reject the Stutz Firm's contention that Larkins has forfeited her right to object to the
December 11 modified injunction.
Further, in light of the circumstances of the trial court's sua sponte modification of the
injunction and the important constitutional right at stake, even assuming that Larkins
forfeited her claim, we would exercise our discretion to consider it on the merits. (See
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate court has discretion to
consider claims that are not properly preserved for review].) In addition to the
circumstances described above that support our exercise of discretion under Williams to
consider Larkins's claim, we note that Larkins also challenged the constitutionality of the
modified injunction in opposing the Stutz Firm's motion to hold her in contempt of court for
violating that injunction. (See Gonzalez, supra, 12 Cal.4th at p. 818 ["out of a concern to
protect the constitutional rights of those affected by invalid injunctive orders, and to avoid
forcing citizens to obey void injunctive orders on pain of punishment for contempt, this court
has firmly established that a person subject to a court's injunction may elect whether to
challenge the constitutional validity of the injunction when it is issued, or to reserve that
claim until a violation of the injunction is charged as a contempt of court"].)
Accordingly, we reject the Stutz Firm's argument that this court should not consider the
merits of Larkins's constitutional claim.
C. The December 11 modified injunction is an unconstitutional prior restraint
Larkins claims that the December 11 modified injunction is unconstitutional in that it violates
her right to free speech under both the federal and state Constitutions. We conclude that
the injunction is unconstitutional as an invalid prior restraint.
1. Standard of review
Larkins's claim "depends on a determination of the constitutionality of the injunction, [and
therefore] we independently review the question whether the trial court correctly interpreted
and applied the applicable constitutional principles. [Citation.]" (Evans v. Evans (2008) 162
Cal.App.4th 1157, 1166 (Evans).)
2. Governing law
In Evans, supra, 162 Cal.App.4th at pages 1166-1167, this court outlined the relevant
constitutional law:
"'The right to free speech is . . . one of the cornerstones of our society,' and is protected
under the First Amendment of the United States Constitution and under an 'even broader'
provision of the California Constitution. [Citation.] An injunction that forbids a citizen from
speaking in advance of the time the communication is to occur is known as a 'prior
restraint.' [Citation.] A prior restraint is
' "the most serious and the least tolerable infringement on First Amendment rights.' "
[Citations.] Prior restraints are highly disfavored and presumptively violate the First
Amendment. [Citations.] This is true even when the speech is expected to be of the type
that is not constitutionally protected. [Citation.]
"To establish a valid prior restraint under the federal Constitution, a proponent has a heavy
burden to show the countervailing interest is compelling, the prior restraint is necessary and
would be effective in promoting this interest, and less extreme measures are unavailable.
[Citations.] Further, any permissible order 'must be couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by constitutional mandate and the essential
needs of the public order. . . .' [Citation.]"
"An order prohibiting a party from making or publishing false statements is a classic type of
an unconstitutional prior restraint." (Evans, supra, 162 Cal.App.4th at p. 1167.) The Evans
court held that the rule of law that prevents the issuance of orders forbidding a party from
making false statements "does not apply to an order issued after a trial prohibiting the
defendant from repeating specific statements found at trial to be defamatory." (Id. at p.
1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156.)
Applying these principles, the Evans court concluded that a preliminary injunction that
prohibits the defendant "from publishing any 'false and defamatory' statements on the
Internet [about the plaintiff] is constitutionally invalid." (Evans, supra, 162 Cal.App.4th at p.
1169.) In reaching this conclusion, the Evans court reasoned, "Because there has been no
trial and no determination on the merits that any statement made by [defendant] was
defamatory, the court cannot prohibit her from making statements characterized only as
'false and defamatory.' " (Ibid.) The Evans court also held that the injunction in that case,
which the court characterized as a "sweeping prohibition," was constitutionally overbroad in
that it "broadly prohibited [defendant] from publishing any defamatory comments about
[plaintiff]." (Ibid.)
3. Application
"An injunction that forbids a citizen from speaking in advance of the time the
communication is to occur is known as a 'prior restraint.' " (Evans, supra, 162 Cal.
App.4th at p. 1166.) The trial court's modified injunction prohibits Larkins from
"making any mention of [the Stutz Firm] or any of its attorneys, past, or present."
As such, the injunction plainly constitutes a prior restraint. As a prior restraint,
this portion of the court's order is "presumptively unconstitutional." We must
therefore determine whether the Stutz Firm has carried the "heavy burden," of showing that
this "highly disfavored" form of injunction is constitutionally valid. (Ibid.) We conclude that
the Stutz Firm clearly has not demonstrated the constitutionality of the injunction.
To begin with, the reason for the trial court's modification of the injunction—to
ensure Larkins's full compliance with the provision of the injunction prohibiting
her from publishing certain negative statements about the Stutz Firm—is a far less
compelling interest than those that have been found insufficient to justify a prior
restraint. (See, e.g., Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144
["even the publication of the purloined Pentagon Papers concerning matters of national
security could not be restrained," citing New York Times Co. v. United States (1971) 403 U.
S. 713].) Nor is there anything in the record that demonstrates that "less extreme measures
are unavailable" to ensure Larkins's compliance with the stipulated injunction. (Evans,
supra, 162 Cal.App.4th at p. 1167.) On the contrary, the record indicates that the trial court
had not imposed any monetary sanctions on Larkins prior to entering the modified
injunction. In addition, the exceedingly broad injunction—barring all speech by Larkins
concerning the Stutz Firm—is clearly not " 'couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by constitutional mandate and the essential
needs of the public order. . . .' [Citation.]" (Id. at p. 1167; see also p. 1169 [concluding
injunction prohibiting all defamatory speech is overbroad].) Application of the analysis for
judging the constitutionality of such injunctions delineated by this court in Evans
demonstrates that the trial court's modified injunction is plainly unconstitutional.
The Stutz Firm does not attempt to defend the injunction's constitutionality by
making the required showing under Evans. Rather, it contends that the injunction
is constitutional as a sanction for Larkins's past contemptuous behavior. In
support of this contention, the Stutz Firm relies primarily on three cases that are wholly
distinguishable—Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712
(Marin); Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1135 (Krontz); and
Admiral Theatre v. City of Chicago (D. Ill. 1993) 832 F. Supp. 1195 (Admiral Theatre)—and
none of which supports the conclusion that the modified injunction entered in this case is
constitutional.
In Marin, the Court of Appeal held that the trial court had not violated the first amendment by
seizing photographic negatives of a criminal defendant that were taken during a criminal
trial, in violation of a rule of court. (Marin, supra, 12 Cal.App.4th at p. 1715.) The court
reasoned:
"The seizure of the film simply enforced [California Rules of Court,] rule 980 by precluding
publication of photographs that should never have been taken and which were obtained
without permission. Qualitatively, the seizure is little different than a refusal of permission to
photograph in the first instance. Since courtroom photography can be completely banned
by a trial court, we seriously question whether confiscation of photographs which should
never have been taken and which could have been, as they were in this case, totally
disallowed, is a prior restraint of protected speech." (Id. at pp. 1718-1719.)
The Marin court also stated, "Assuming, however, that the seizure is a prior restraint, we
conclude it is justified because the photographs were obtained unlawfully in a deliberate
violation of a rule of court." (Marin, supra, 12 Cal.App.4th at p. 1719.) Unlike Marin, in
which the court prohibited the publication of speech that had previously been judicially
determined to have been unlawfully obtained, in this case, the trial court's order broadly
precludes Larkins from ever uttering any speech—even legal and truthful speech—about
the Stutz Firm. Thus, while Marin may be viewed as an instance in which a court upheld a
narrow prior restraint in order to preserve the fairness of a criminal trial, it clearly does not
stand for the proposition that a trial court may issue an injunction barring a defendant from
making "any mention" of the plaintiff, even if the defendant has previously defamed the
plaintiff.
Krontz, supra, 136 Cal.App.4th 1126, and Admiral Theatre, supra, 832 F. Supp. 1195, on
which the Stutz Firm relies, both involved efforts on the part of municipalities to revoke the
licenses of adult entertainment businesses that had allegedly violated various municipal
code provisions. Neither case is factually similar to this case, and neither is legally
apposite. In addition, neither supports the proposition that it is constitutional for a court to
enjoin all speech by a defendant concerning a plaintiff, merely because the plaintiff has
previously uttered certain defamatory statements about the defendant.
Accordingly, we conclude that paragraph four of the December 11 order modifying
the permanent injunction is unconstitutional as an invalid prior restraint.
C. Proceedings on remand
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. 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.
IV.
DISPOSITION
Paragraph four of the December 11, 2009 order modifying the permanent
injunction is reversed. The matter is remanded to the trial court for further proceedings
as described in part III.C., ante. Each party is to bear its own costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
McDONALD, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Judge. Reversed and remanded.
I. INTRODUCTION
The law firm of Stutz Artiano Shinoff & Holtz (the Stutz Firm) filed a complaint against Maura
Larkins alleging that Larkins had published several defamatory statements about the firm
and its lawyers on several Web sites that Larkins maintained. The trial court granted the
Stutz Firm's motion for summary adjudication, finding that the statements at issue were
defamatory as a matter of law.
Prior to a trial on the issue of damages, the parties reached a settlement. Pursuant to that
settlement, the trial court entered a stipulated permanent injunction that
prohibited Larkins from publishing statements accusing the Stutz Firm or its
lawyers of illegal conduct or violations of law, unethical conduct, lack of
professional competence, or intimidation. A few months later, in response to a motion
filed by the Stutz Firm, the trial court ordered Larkins to remove from her Web sites several
statements that the court found to be in violation of the injunction. A couple of months later,
the Stutz Firm filed another motion claiming that Larkins was continuing to publish
statements that violated the terms of the stipulated injunction. The trial court found that
Larkins had continued to violate the stipulated injunction, and that she was unwilling to
modify her Web sites in good faith. The trial court modified the stipulated injunction
sua sponte to prevent "[Larkins] from making any mention of [the Stutz Firm] or
any of its attorneys, past or present."
On appeal, Larkins contends that the trial court's modified injunction constitutes an
unconstitutional prior restraint, in violation of her constitutional right to free speech under
both the state and federal Constitutions. We agree that the modified
injunction is clearly an unconstitutional prior restraint and
that it must be reversed. We remand the matter to the trial court to allow the
court to consider whether to exercise its authority to coerce compliance with the stipulated
injunction and/or to punish Larkins for her failure to comply with the stipulated injunction, in
a manner consistent with the law and the views expressed in this opinion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Stutz Firm's first amended complaint
In July 2008, the Stutz Firm filed a first amended complaint against Larkins that contained
causes of action for defamation per se, declaratory relief, and injunctive relief. The Stutz
Firm alleged that Larkins had created a Web site known as the "San Diego Education
Report," on which Larkins had made numerous specific defamatory statements concerning
the Stutz Firm and its attorneys. The Stutz Firm sought damages, including punitive
damages, a declaration that Larkins had published defamatory statements concerning the
Stutz Firm, and a "preliminary and/or permanent injunction preventing [Larkins] from
continuing to publish or republishing those statements which the court declares to be
defamatory."
B. The trial court grants the Stutz Firm's motion for summary adjudication
In October 2008, the Stutz Firm filed a motion for summary adjudication in which it argued
that various statements on Larkins's Web sites were defamatory as a matter of law. The
Stutz Firm requested that the court "declare that certain statements on [Larkins's] [Web
sites] are defamatory and enjoin [Larkins] from publishing these statements."
In March 2009, the trial court entered an order granting the Stutz Firm's motion for summary
adjudication. In its order, the court found that the Stutz Firm had established its claim for
defamation per se as a matter of law, noting that the Stutz Firm had established that none of
the statements on Larkins's Web sites concerning the Stutz Firm were true. The court also
ruled that the Stutz Firm was entitled to an injunction precluding Larkins from publishing "the
defamatory statements alleged in [the Stutz Firm's] first amended complaint." The court
stated that "the case [would] proceed to trial on the amounts of compensatory and punitive
damages to be awarded to [the Stutz Firm] according to proof."
C. The stipulated injunction
On April 6, 2009, the day set for the trial on damages, the parties reached a settlement of
the case. Pursuant to the parties' stipulation, the court entered a permanent injunction that
states in relevant part:
"1. . . . [The Stutz Firm][ ] is entitled to an injunction enjoining and restraining [Larkins] from
continuing to publish or republishing by any method or media, including but not limited to all
electronic data, Web sites and Web pages, the defamatory statements alleged in [the Stutz
Firm's] first amended complaint pertaining to [the Stutz Firm] and any of its lawyers past or
present, and future publication of statements with regard to [the Stutz Firm] and its lawyers
accusing illegal conduct or violations of law, unethical conduct, lack of professional
competence or intimidation.
"2. [Larkins] shall comply with, complete the removal of, and/or undertake all necessary
steps for the removal of the defamatory statements as specified above no later than ten (10)
days from the date of this order."
D. The trial court grants the Stutz Firm's motion to enforce the stipulated injunction
In July 2009, the Stutz Firm filed a motion to enforce the permanent injunction. In its brief,
the Stutz Firm claimed that Larkins continued to display on her Web sites numerous
statements that were in violation of the April 6 injunction. Among the statements on
Larkins's Web sites that the Stutz Firm claimed violated the injunction was, " 'One of Daniel
Shinoff's [an attorney at the Stutz Firm] specialties is destroying the lives of parents who
complain that their kids aren't getting the right education.' " The Stutz Firm also claimed that
Larkins violated the injunction by posting the following statements on her Web sites:
"'Attorneys who have helped cover up events in schools are in charge of training
both new board members and new school attorneys,' "
and,
" 'Dan Shinoff trains board members and employees."
Larkins filed an opposition in which she argued that the
statements at issue did not violate the terms of the
injunction.
On August 7, the trial court held a hearing on the Stutz Firm's motion.
At the hearing, Larkins stated that the intent of the parties in entering into the
stipulated injunction was that, "I would still be able to report the facts, such as [the
Stutz Firm] did this action. I would simply not be able to opine that that action was
illegal, unethical, incompetent or intimidating."
Larkins stated that she needed "clarification" of the scope
of the injunction as to "where the limit is."
The Stutz Firm's attorney argued, "[T]he stipulated injunction prohibits accusations of
certain types of conduct. It's not just magic words. You can't replace one word with the
other, and the court correctly grasped that."
Near the conclusion of the hearing, the trial court stated:
"Okay. Let me make it clear for you. You can't use language that states or implies
illegal, unethical, incompetent, or intimidating tactics on the part of the law firm.
[¶] Now, I know what you're asking me to do, and that is give to you a shopping list
of what you can say and what you can't say. Listen to me. No, I know you're shaking
your head, but you have to listen because we're at the point where I'm going to rule. [¶] . . .
If you have questions about what you can or cannot say, I
can only suggest that you run them past the filter of
perhaps someone who can give you guidance in this
area . . . ."
On August 7, 2009, the trial court granted the Stutz Firm's motion to enforce the April 6
injunction. The court found that "the disputed statements are in violation of the permanent
injunction entered on April 6, 2009. [Larkins] is ordered to remove all the disputed
statements from her [Web sites] within 48 hours."
E. The trial court's modification of the injunction
In October 2009, the Stutz Firm filed a motion to strike Larkins's answer and enter a default.
In its motion, the Stutz Firm maintained that Larkins was continuing to publish statements
that violated the stipulated injunction and the court's August 7 order. For example, the Stutz
Firm noted that the following statement appeared on Larkins's Web sites: " 'One of Daniel
Shinoff's specialties is planning legal tactics against parents who complain that their kids
aren't getting the right education.' " The Stutz Firm also claimed that Larkins violated the
injunction by posting on her Web sites, " 'Attorneys who have helped schools avoid
revealing events in schools are in charge of training both new board members and new
school attorneys,' " in conjunction with the statement,
" 'Dan Shinoff trains board members and employees.' " Larkins opposed the motion, again
contending that the statements at issue did not violate the stipulated injunction.
The trial court held a hearing on October 30 at which the court explained that it intended to
modify the stipulated injunction to prevent Larkins from making "any mention" of the Stutz
Firm on her Web sites. The court reasoned:
"In formulating this injunction, it was the court's intention to eliminate reference to
accusations of illegal, unethical, incompetent or intimidating conduct on the part of [the Stutz
Firm] from any [Web site] maintained by [Larkins].
"We've been back in court several times on the language that still appears on the [Web
sites]. And unfortunately, I feel like I'm chasing something that I can't get my hands around,
because every time I rule that [Larkins] shouldn't use one phraseology, she simply switches
to another in an . . . apparent attempt to circumvent the Court's order.
"And it comes to a point where we really have to stop this and get to the meat of the
allegations.
"You can't imply or insinuate any of these things. And what I have seen is the continued
attempt to do just that.
"So what I intend to do is modify the injunction to prevent any mention of [the Stutz Firm] on
[Larkins's] [Web sites].
"And I'm doing that not in an attempt to foreclose or eliminate [Larkins's] right to free
speech, but because it is crystal clear to me at this point that she is unable or unwilling to
modify her [Web sites] in any good-faith attempt to remove reference to that law firm.
"So we're cutting it off at this point. No more reference to the law firm.
"What I'm trying to do is not get to the point where I have to enter default and strike an
answer and award damages, assuming they're proved up, in the default process. But right
now, what I'm trying to do is make a bright-line rule that there's no way anybody can
misinterpret.
"Just don't mention them. They're out of it. And if you can't do that, then I'll look at it again,
but this is the last time I'm coming back on this."
On December 11, 2009, the trial court entered the following order, based on the October
30th hearing:
"1. The Court's April 6, 2009 Order on Permanent Injunction ('Injunction'), stipulated to by
the parties . . . enjoined and restrained [Larkins] from publishing accusations of illegal
conduct or violations of law, unethical conduct, lack of professional competence or
intimidation pertaining to [the Stutz Firm] and any of its lawyers, past or present.
"2. On August 7, 2009, at 10:30 a.m., [the Stutz Firm's] Motion to Enforce Permanent
Injunction Against [Larkins] came on regularly for hearing before this Court. The Court
granted [the Stutz Firm's] motion, finding that the disputed statements challenged therein
were in violation of the Injunction and ordering [Larkins] to remove all the disputed
statements from her [Web sites] within 48 hours.
"3. The Court finds that [Larkins] has not complied with the Injunction or this Court's orders
and continues to attempt to circumvent the Injunction. The Court further finds that [Larkins]
has been unwilling to modify her [Web sites] in good faith.
"4. Due to [Larkins's] continued circumvention of this Court's orders, the Court hereby
modifies the Injunction to prevent [Larkins] from making any mention of [the Stutz Firm] or
any of its attorneys, past or present. [Larkins] is enjoined and restrained from continuing to
publish or republishing, by any method or media, including but not limited to all electronic
data, [Web sites] and Web pages, any statements pertaining to [the Stutz Firm] and any of
its lawyers, past or present, and future publication of statements with regard to [the Stutz
Firm] and any of its lawyers. [Larkins] is ordered to remove all mention of [the Stutz Firm]
and any of its lawyers, past or present, from her [Web sites] or [Web sites] under her control
within twenty days."
F. The trial court's order holding Larkins in contempt and requiring her to pay $3,000 in
sanctions
In January 2010, the Stutz Firm filed an ex parte application to enforce the modified
injunction, to hold Larkins in contempt, and to impose sanctions. Larkins filed an
opposition. On January 21, the court entered an order to show cause as to why Larkins
should not be held in contempt, and set a hearing date of March 5, 2010.
In February 2010, the Stutz Firm filed a motion and brief in support of the order to show
cause. In its brief, the Stutz Firm argued that Larkins was in contempt of the court's modified
injunction in that numerous references to the Stutz Firm and its attorneys remained posted
on Larkins's Web sites. The Stutz Firm requested that the court "take some action [against
Larkins], including sanctions, a daily fee, an appropriate contempt punishment (including jail
time), striking her answer, or any combination of these, for willfully violating the Court's
orders." (Fn. omitted.) The Stutz Firm requested that the court award it $6,547.50 in
attorney fees that it incurred in connection with its ex parte application and motion. Larkins
filed an opposition to the motion in which she argued that the court should not enforce the
modified injunction because the injunction was "vastly unconstitutional."
On March 5, the court heard argument on the order to show cause. On March 10, the trial
court found Larkins in contempt and ordered her to pay $3,000 in sanctions. The trial court
reasoned:
"The Court finds defendant Maura Larkins has continued to violate the Court's order
resulting from the parties' stipulation of April 6, 2009. The Court finds [Larkins] is currently
in violation of the Court's further order of December 11, 2009. [Larkins] implicitly concedes
she is in violation of the Court's orders. [Larkins] argues the orders are unconstitutional,
illegal and impossible to comply with. [Larkins's] position is based in part, on her
misunderstanding of constitutional law. Nonetheless, [Larkins][ ] failed to timely challenge
those orders, and despite the fact that the April order resulted from the parties' stipulation,
[Larkins] continues to refuse to comply with the order."
The trial court ordered Larkins to pay $3,000 in sanctions to the Stutz Firm for fees and
costs incurred in "enforcing the injunction." In addition, the court stated:
"If [Larkins] does not bring her Web site[s] into compliance with the Court's previous orders
by April 9, 2010 and/or fails to timely pay the sanctions ordered, the Court will be forced to
strike [Larkins's] answer and take her default. In which case, [the Stutz Firm] will be free to
obtain a judgment against [Larkins] for damages incurred as a result of [Larkins's] violations
of the injunctions."
G. Larkins's appeal from the trial court's order modifying the injunction
On March 18, 2010, Larkins timely appealed from the trial court's December 11, 2009
order.
III.
DISCUSSION
A. The Stutz Firm's motion to dismiss the appeal is denied
The Stutz Firm filed a motion to dismiss Larkins's appeal on the ground that Larkins had
repeatedly willfully disobeyed the trial court's orders in this case, including the order at issue
in this appeal.
In support of its request, the Stutz Firm noted that the Supreme Court stated in MacPherson
v. MacPherson (1939) 13 Cal.2d 271, 277 that "[a] party to an action cannot, with right or
reason, ask the aid and assistance of a court in hearing his demands while he stands in an
attitude of contempt to legal orders and processes of the courts of this state. [Citations.]"
The Stutz Firm also cited TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 378-379, in which
the Court of Appeal dismissed an appeal based on the appellant's unabated willful failure to
comply with a court order to answer postjudgment interrogatories, and Alioto Fish Co. v.
Alioto (1994) 27 Cal.App.4th 1669, 1685, in which the Court of Appeal stayed an appeal for
30 days to allow the appellants to demonstrate that they had complied with a trial court's
postjudgment order. The Alioto court also indicated that the appeal would be dismissed if
the appellants failed to timely demonstrate compliance with the trial court's order. (Id. at p.
1691.)
We deny the Stutz Firm's motion to dismiss, for two reasons. To begin with, all of the cases
that the Stutz Firm cites involve litigants who remained in contempt of orders issued by a trial
court. The Stutz Firm does not argue in its motion that Larkins remains in contempt of the
trial court's order. Thus, even under the cases that the Stutz Firm cites, there is no basis to
dismiss Larkins's appeal.
Second, even assuming that Larkins remains in contempt of the trial court's modified
injunction, we decline to dismiss her appeal since Larkins is challenging the constitutional
validity of that injunction in this appeal from the trial court's order modifying the injunction.
Such a dismissal would be wholly inconsistent with the fact that in California a party may
raise a challenge to the validity of an injunction for the first time in a contempt proceeding to
enforce the injunction. (People v. Gonzalez (1996) 12 Cal.4th 804, 818-819 (Gonzalez).)
California's law concerning challenges to injunctive orders grew "out of a concern to protect
the constitutional rights of those affected by invalid injunctive orders . . . ." (Id. at p. 818.)
Larkins has brought a direct challenge to the validity of the trial court's order on the ground
that it violates her right to free speech under the federal and state Constitutions. Her failure
to comply with that same order cannot serve as a basis for dismissing the very appeal in
which she seeks to vindicate her constitutional rights.
B. We reject the Stutz Firm's contention that this court should not consider the merits of
Larkins's constitutional claim
The Stutz Firm contends that Larkins forfeited her right to object to the December 11
modified injunction by failing to raise an objection at the October 30 hearing at which the
trial court indicated that it intended to order such a modification. We disagree.
The trial court indicated its intent to modify the injunction for the first time, sua sponte, at the
October 30 hearing. Larkins thus could not have anticipated prior to the hearing that the
trial court would modify the injunction. Further, before the trial court entered the December
11 order modifying the injunction, Larkins filed a written objection in which she claimed that
the proposed modification would violate her constitutional right to free speech. Accordingly,
we reject the Stutz Firm's contention that Larkins has forfeited her right to object to the
December 11 modified injunction.
Further, in light of the circumstances of the trial court's sua sponte modification of the
injunction and the important constitutional right at stake, even assuming that Larkins
forfeited her claim, we would exercise our discretion to consider it on the merits. (See
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate court has discretion to
consider claims that are not properly preserved for review].) In addition to the
circumstances described above that support our exercise of discretion under Williams to
consider Larkins's claim, we note that Larkins also challenged the constitutionality of the
modified injunction in opposing the Stutz Firm's motion to hold her in contempt of court for
violating that injunction. (See Gonzalez, supra, 12 Cal.4th at p. 818 ["out of a concern to
protect the constitutional rights of those affected by invalid injunctive orders, and to avoid
forcing citizens to obey void injunctive orders on pain of punishment for contempt, this court
has firmly established that a person subject to a court's injunction may elect whether to
challenge the constitutional validity of the injunction when it is issued, or to reserve that
claim until a violation of the injunction is charged as a contempt of court"].)
Accordingly, we reject the Stutz Firm's argument that this court should not consider the
merits of Larkins's constitutional claim.
C. The December 11 modified injunction is an unconstitutional prior restraint
Larkins claims that the December 11 modified injunction is unconstitutional in that it violates
her right to free speech under both the federal and state Constitutions. We conclude that
the injunction is unconstitutional as an invalid prior restraint.
1. Standard of review
Larkins's claim "depends on a determination of the constitutionality of the injunction, [and
therefore] we independently review the question whether the trial court correctly interpreted
and applied the applicable constitutional principles. [Citation.]" (Evans v. Evans (2008) 162
Cal.App.4th 1157, 1166 (Evans).)
2. Governing law
In Evans, supra, 162 Cal.App.4th at pages 1166-1167, this court outlined the relevant
constitutional law:
"'The right to free speech is . . . one of the cornerstones of our society,' and is protected
under the First Amendment of the United States Constitution and under an 'even broader'
provision of the California Constitution. [Citation.] An injunction that forbids a citizen from
speaking in advance of the time the communication is to occur is known as a 'prior
restraint.' [Citation.] A prior restraint is
' "the most serious and the least tolerable infringement on First Amendment rights.' "
[Citations.] Prior restraints are highly disfavored and presumptively violate the First
Amendment. [Citations.] This is true even when the speech is expected to be of the type
that is not constitutionally protected. [Citation.]
"To establish a valid prior restraint under the federal Constitution, a proponent has a heavy
burden to show the countervailing interest is compelling, the prior restraint is necessary and
would be effective in promoting this interest, and less extreme measures are unavailable.
[Citations.] Further, any permissible order 'must be couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by constitutional mandate and the essential
needs of the public order. . . .' [Citation.]"
"An order prohibiting a party from making or publishing false statements is a classic type of
an unconstitutional prior restraint." (Evans, supra, 162 Cal.App.4th at p. 1167.) The Evans
court held that the rule of law that prevents the issuance of orders forbidding a party from
making false statements "does not apply to an order issued after a trial prohibiting the
defendant from repeating specific statements found at trial to be defamatory." (Id. at p.
1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156.)
Applying these principles, the Evans court concluded that a preliminary injunction that
prohibits the defendant "from publishing any 'false and defamatory' statements on the
Internet [about the plaintiff] is constitutionally invalid." (Evans, supra, 162 Cal.App.4th at p.
1169.) In reaching this conclusion, the Evans court reasoned, "Because there has been no
trial and no determination on the merits that any statement made by [defendant] was
defamatory, the court cannot prohibit her from making statements characterized only as
'false and defamatory.' " (Ibid.) The Evans court also held that the injunction in that case,
which the court characterized as a "sweeping prohibition," was constitutionally overbroad in
that it "broadly prohibited [defendant] from publishing any defamatory comments about
[plaintiff]." (Ibid.)
3. Application
"An injunction that forbids a citizen from speaking in advance of the time the
communication is to occur is known as a 'prior restraint.' " (Evans, supra, 162 Cal.
App.4th at p. 1166.) The trial court's modified injunction prohibits Larkins from
"making any mention of [the Stutz Firm] or any of its attorneys, past, or present."
As such, the injunction plainly constitutes a prior restraint. As a prior restraint,
this portion of the court's order is "presumptively unconstitutional." We must
therefore determine whether the Stutz Firm has carried the "heavy burden," of showing that
this "highly disfavored" form of injunction is constitutionally valid. (Ibid.) We conclude that
the Stutz Firm clearly has not demonstrated the constitutionality of the injunction.
To begin with, the reason for the trial court's modification of the injunction—to
ensure Larkins's full compliance with the provision of the injunction prohibiting
her from publishing certain negative statements about the Stutz Firm—is a far less
compelling interest than those that have been found insufficient to justify a prior
restraint. (See, e.g., Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144
["even the publication of the purloined Pentagon Papers concerning matters of national
security could not be restrained," citing New York Times Co. v. United States (1971) 403 U.
S. 713].) Nor is there anything in the record that demonstrates that "less extreme measures
are unavailable" to ensure Larkins's compliance with the stipulated injunction. (Evans,
supra, 162 Cal.App.4th at p. 1167.) On the contrary, the record indicates that the trial court
had not imposed any monetary sanctions on Larkins prior to entering the modified
injunction. In addition, the exceedingly broad injunction—barring all speech by Larkins
concerning the Stutz Firm—is clearly not " 'couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by constitutional mandate and the essential
needs of the public order. . . .' [Citation.]" (Id. at p. 1167; see also p. 1169 [concluding
injunction prohibiting all defamatory speech is overbroad].) Application of the analysis for
judging the constitutionality of such injunctions delineated by this court in Evans
demonstrates that the trial court's modified injunction is plainly unconstitutional.
The Stutz Firm does not attempt to defend the injunction's constitutionality by
making the required showing under Evans. Rather, it contends that the injunction
is constitutional as a sanction for Larkins's past contemptuous behavior. In
support of this contention, the Stutz Firm relies primarily on three cases that are wholly
distinguishable—Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712
(Marin); Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1135 (Krontz); and
Admiral Theatre v. City of Chicago (D. Ill. 1993) 832 F. Supp. 1195 (Admiral Theatre)—and
none of which supports the conclusion that the modified injunction entered in this case is
constitutional.
In Marin, the Court of Appeal held that the trial court had not violated the first amendment by
seizing photographic negatives of a criminal defendant that were taken during a criminal
trial, in violation of a rule of court. (Marin, supra, 12 Cal.App.4th at p. 1715.) The court
reasoned:
"The seizure of the film simply enforced [California Rules of Court,] rule 980 by precluding
publication of photographs that should never have been taken and which were obtained
without permission. Qualitatively, the seizure is little different than a refusal of permission to
photograph in the first instance. Since courtroom photography can be completely banned
by a trial court, we seriously question whether confiscation of photographs which should
never have been taken and which could have been, as they were in this case, totally
disallowed, is a prior restraint of protected speech." (Id. at pp. 1718-1719.)
The Marin court also stated, "Assuming, however, that the seizure is a prior restraint, we
conclude it is justified because the photographs were obtained unlawfully in a deliberate
violation of a rule of court." (Marin, supra, 12 Cal.App.4th at p. 1719.) Unlike Marin, in
which the court prohibited the publication of speech that had previously been judicially
determined to have been unlawfully obtained, in this case, the trial court's order broadly
precludes Larkins from ever uttering any speech—even legal and truthful speech—about
the Stutz Firm. Thus, while Marin may be viewed as an instance in which a court upheld a
narrow prior restraint in order to preserve the fairness of a criminal trial, it clearly does not
stand for the proposition that a trial court may issue an injunction barring a defendant from
making "any mention" of the plaintiff, even if the defendant has previously defamed the
plaintiff.
Krontz, supra, 136 Cal.App.4th 1126, and Admiral Theatre, supra, 832 F. Supp. 1195, on
which the Stutz Firm relies, both involved efforts on the part of municipalities to revoke the
licenses of adult entertainment businesses that had allegedly violated various municipal
code provisions. Neither case is factually similar to this case, and neither is legally
apposite. In addition, neither supports the proposition that it is constitutional for a court to
enjoin all speech by a defendant concerning a plaintiff, merely because the plaintiff has
previously uttered certain defamatory statements about the defendant.
Accordingly, we conclude that paragraph four of the December 11 order modifying
the permanent injunction is unconstitutional as an invalid prior restraint.
C. Proceedings on remand
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. 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.
IV.
DISPOSITION
Paragraph four of the December 11, 2009 order modifying the permanent
injunction is reversed. The matter is remanded to the trial court for further proceedings
as described in part III.C., ante. Each party is to bear its own costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
McDONALD, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA |
| .D057190 .(Super. Ct. No. .37-2007-00076218-CU-DF-CTL) |
Filed 8/5/11
STUTZ ARTIANO SHINOFF & HOLTZ,
Plaintiff and Respondent,
v.
MAURA LARKINS,
Defendant and Appellant.
_____
STUTZ ARTIANO SHINOFF & HOLTZ,
Plaintiff and Respondent,
v.
MAURA LARKINS,
Defendant and Appellant.
_____
University of San Diego (USD) law professor Shaun Martin represented Maura Larkins pro
bono in the Court of Appeal. He is the author of the blog California Appellate Report. Stutz
attorney Daniel Shinoff is the favorite attorney of San Diego County Office of Education.
bono in the Court of Appeal. He is the author of the blog California Appellate Report. Stutz
attorney Daniel Shinoff is the favorite attorney of San Diego County Office of Education.
California Court of Appeal decision
Why did the San Diego
ACLU 's head counsel
David Blair-Loy "take no
position" regarding the
constitutionality of the
modified injunction that
was so soundly rejected
by the Court of Appeal in
this case?
Blog posts re David
Blair-Loy
The reason seems to lie in
the interesting relationship
between David Blair-Loy
and Plaintiff partner
Daniel Shinoff.
It seems that Blair-Loy
likes to go very, very easy
on violations on the
constitution in San Diego
schools. He refused to
name San Diego Unified
School District in the
ACLU's lawsuit regarding
student fees, although he
had been informed of
many specific violations by
parent Sally Smith.
Further, the San Diego
ACLU failed to press the
issue of teacher layoffs by
seniority in low-
performing schools even
after the Los Angeles
ACLU won a lawsuit on the
issue. The layoffs
caused many schools in
low income areas to lose
almost every teacher.
But what is motivating
David Blair-Loy to behave
this way? I am wondering
if it might be his desire for
personal approval from
San Diego lawyers. He
wouldn't have received his
award for civility from the
San Diego Bar
Association if he hadn't
been "highly civil" in his
dealings with Dan Shinoff,
who is the favorite lawyer
of local school districts.
ACLU 's head counsel
David Blair-Loy "take no
position" regarding the
constitutionality of the
modified injunction that
was so soundly rejected
by the Court of Appeal in
this case?
Blog posts re David
Blair-Loy
The reason seems to lie in
the interesting relationship
between David Blair-Loy
and Plaintiff partner
Daniel Shinoff.
It seems that Blair-Loy
likes to go very, very easy
on violations on the
constitution in San Diego
schools. He refused to
name San Diego Unified
School District in the
ACLU's lawsuit regarding
student fees, although he
had been informed of
many specific violations by
parent Sally Smith.
Further, the San Diego
ACLU failed to press the
issue of teacher layoffs by
seniority in low-
performing schools even
after the Los Angeles
ACLU won a lawsuit on the
issue. The layoffs
caused many schools in
low income areas to lose
almost every teacher.
But what is motivating
David Blair-Loy to behave
this way? I am wondering
if it might be his desire for
personal approval from
San Diego lawyers. He
wouldn't have received his
award for civility from the
San Diego Bar
Association if he hadn't
been "highly civil" in his
dealings with Dan Shinoff,
who is the favorite lawyer
of local school districts.
Note: Stutz law firm won a summary judgment in Feb. 2009 because the schoolteacher
defendant used an incorrect format; but that decision seems to have been rescinded.
There will be a trial in the case on Sept. 7, 2012.
defendant used an incorrect format; but that decision seems to have been rescinded.
There will be a trial in the case on Sept. 7, 2012.
| > > > It was a bizarre abuse of discretion for the trial judge to find these statements to be defamatory. This is exactly what Dan Shinoff and his associates are paid to do! The schools WANT embarrassing events to be covered up, and they pay large amounts of taxpayers funds to keep them covered-up. But it was even more bizarre for Dan Shinoff to claim that these actions are unethical, and for the judge to find that they are unethical, and on that basis, to demand that Maura Larkins not talk about them! Dan Shinoff has recently claimed, in another case, that it is in the public interest to keep certain information secret in our schools. |
| > > > Who would this "someone" be? How would this "someone" know what the judge was thinking? Why did the judge refuse |
< < <
"States or implies????"
This is NOT what the
stipulated injunction said!
The agreement said that
Maura Larkins would not
accuse Stutz of having
done something illegal,
unethical, intimidating or
professionally
incompetent Larkins'
statements are simple
facts. Larkins did not say
that Stutz behaved
unethically. She simply
reported what Stutz did.
"States or implies????"
This is NOT what the
stipulated injunction said!
The agreement said that
Maura Larkins would not
accuse Stutz of having
done something illegal,
unethical, intimidating or
professionally
incompetent Larkins'
statements are simple
facts. Larkins did not say
that Stutz behaved
unethically. She simply
reported what Stutz did.
< < < In fact, Stutz
did insist on
"magic words" in
the injunction when it
insisted that the word
"intimidating" be added
to the list.
did insist on
"magic words" in
the injunction when it
insisted that the word
"intimidating" be added
to the list.
Judge Judith Hayes' injunction forbidding a teacher from mentioning the names of
school lawyers was overturned.
school lawyers was overturned.
4th Appellate District Division 1
Court data last updated: 09/30/2012 10:05 AM
Docket (Register of Actions)
Stutz Artiano Shinoff & Holtz v. Larkins
Case Number D057190
Date Description Notes
04/20/2010 Notice of appeal lodged/received.
filed on March 18, 2010 by Larkins
04/20/2010 Appellate package sent.
04/20/2010 Notice per rule 8.124 - with reporter's
transcript. filed on 3/26/10
04/27/2010 Civil case information statement filed. Larkins
04/27/2010 Certificate of interested entities and parties filed
by: Defendant and Appellant: Larkins, Maura
07/20/2010 Notice to reporter to prepare transcript. CSR
Marvel Votaw: 4/25/08; 2/20/09; 3/13/09; 4/3/09; 4/6/09; 1/21/10; 2/18/10
& 3/5/10 CSR Cynthia White: 10/30/09 dated 7/20/10
09/20/2010 REPORTER'S TRANSCRIPT FILED*** Clerks
Rule 8.124; Reporters - 3 [314]
10/29/2010 APPELLANT'S APPENDIX AND OPENING BRIEF
FILED. Defendant and Appellant: Larkins, Maura 4 Vols.
Appellate Appendix [1018]
11/23/2010 Granted - extension of time.
RESPONDENT'S BRIEF. Due on 12/29/2010 By 30 Day(s)
1 copy returned to respondent via messenger slip
12/15/2010 Record omission letter received. from appellant
Larkins. filed in superior court on 12/13/10
01/07/2011 Filed augmented record pursuant to rule 8.340.
R-1/13pgs.; 1-declaration
01/10/2011 Respondent notified re failure to file respondent's
brief.
01/10/2011 Errata filed to: Appellant's Appendix notifying
court volume 1 of appendix is missing pages i through v of the
Chronological Index but the index is correct in all other volumes
01/25/2011 RESPONDENT'S BRIEF. Plaintiff and Respondent:
Stutz Artiano Shinoff & Holtz
Attorney: Ray J. Artiano
01/26/2011 Oral argument waiver notice sent. Febuary 7,
2011
01/26/2011 Certificate of interested entities and parties filed
by: Plaintiff and Respondent: Stutz Artiano Shinoff & Holtz
Attorney: Ray J. Artiano
01/25/2011 Motion to dismiss filed (after record). by
respondent oppo. due 2/9/11
02/04/2011 Substitution of attorneys filed for: Appellant in
pro per substitutes in attorney Martin as counsel on appeal
02/07/2011 Request for oral argument filed by: appellant/15
minutes
02/08/2011 Request for oral argument filed by:
respondent/10 min
02/10/2011 Opposition filed. Appellant to motion to dismiss
02/15/2011 Order filed. Respondent's opposed motion to
dismiss the appeal will be considered with the appeal.
02/15/2011 APPELLANT'S REPLY BRIEF. Defendant and
Appellant: Larkins, Maura
02/15/2011 CASE FULLY BRIEFED.
06/02/2011 **CALENDAR NOTICE SENT** Calendar Date:
Monday, JULY 11, 2011 @ 1:30 pm
07/11/2011 Cause argued and submitted.
08/05/2011 Opinion filed. (Signed Unpublished) Paragraph
four of the December 11, 2009 order modifying the permanent injunction
is reversed. The matter is remanded to the trial court for further
proceedings as described in part III.C., ante. Each party is to bear its own
costs on appeal.
09/14/2011 Received letter from: appellant requesting a CD
copy of oral argument
10/05/2011 Remittitur issued.
10/05/2011 Case complete.
07/23/2012 Record sent to storage.
Court data last updated: 09/30/2012 10:05 AM
Docket (Register of Actions)
Stutz Artiano Shinoff & Holtz v. Larkins
Case Number D057190
Date Description Notes
04/20/2010 Notice of appeal lodged/received.
filed on March 18, 2010 by Larkins
04/20/2010 Appellate package sent.
04/20/2010 Notice per rule 8.124 - with reporter's
transcript. filed on 3/26/10
04/27/2010 Civil case information statement filed. Larkins
04/27/2010 Certificate of interested entities and parties filed
by: Defendant and Appellant: Larkins, Maura
07/20/2010 Notice to reporter to prepare transcript. CSR
Marvel Votaw: 4/25/08; 2/20/09; 3/13/09; 4/3/09; 4/6/09; 1/21/10; 2/18/10
& 3/5/10 CSR Cynthia White: 10/30/09 dated 7/20/10
09/20/2010 REPORTER'S TRANSCRIPT FILED*** Clerks
Rule 8.124; Reporters - 3 [314]
10/29/2010 APPELLANT'S APPENDIX AND OPENING BRIEF
FILED. Defendant and Appellant: Larkins, Maura 4 Vols.
Appellate Appendix [1018]
11/23/2010 Granted - extension of time.
RESPONDENT'S BRIEF. Due on 12/29/2010 By 30 Day(s)
1 copy returned to respondent via messenger slip
12/15/2010 Record omission letter received. from appellant
Larkins. filed in superior court on 12/13/10
01/07/2011 Filed augmented record pursuant to rule 8.340.
R-1/13pgs.; 1-declaration
01/10/2011 Respondent notified re failure to file respondent's
brief.
01/10/2011 Errata filed to: Appellant's Appendix notifying
court volume 1 of appendix is missing pages i through v of the
Chronological Index but the index is correct in all other volumes
01/25/2011 RESPONDENT'S BRIEF. Plaintiff and Respondent:
Stutz Artiano Shinoff & Holtz
Attorney: Ray J. Artiano
01/26/2011 Oral argument waiver notice sent. Febuary 7,
2011
01/26/2011 Certificate of interested entities and parties filed
by: Plaintiff and Respondent: Stutz Artiano Shinoff & Holtz
Attorney: Ray J. Artiano
01/25/2011 Motion to dismiss filed (after record). by
respondent oppo. due 2/9/11
02/04/2011 Substitution of attorneys filed for: Appellant in
pro per substitutes in attorney Martin as counsel on appeal
02/07/2011 Request for oral argument filed by: appellant/15
minutes
02/08/2011 Request for oral argument filed by:
respondent/10 min
02/10/2011 Opposition filed. Appellant to motion to dismiss
02/15/2011 Order filed. Respondent's opposed motion to
dismiss the appeal will be considered with the appeal.
02/15/2011 APPELLANT'S REPLY BRIEF. Defendant and
Appellant: Larkins, Maura
02/15/2011 CASE FULLY BRIEFED.
06/02/2011 **CALENDAR NOTICE SENT** Calendar Date:
Monday, JULY 11, 2011 @ 1:30 pm
07/11/2011 Cause argued and submitted.
08/05/2011 Opinion filed. (Signed Unpublished) Paragraph
four of the December 11, 2009 order modifying the permanent injunction
is reversed. The matter is remanded to the trial court for further
proceedings as described in part III.C., ante. Each party is to bear its own
costs on appeal.
09/14/2011 Received letter from: appellant requesting a CD
copy of oral argument
10/05/2011 Remittitur issued.
10/05/2011 Case complete.
07/23/2012 Record sent to storage.
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Appeal regarding Judge Judith Hayes'
unconstitutional injunction of Dec. 11, 2009
unconstitutional injunction of Dec. 11, 2009
Appeal regarding Judge Juidth Hayes'
unconstitutional injunction of April 6, 2009
unconstitutional injunction of April 6, 2009
4th Appellate District Division 1
Court data last updated: 10/03/2012 12:05 PM
Docket (Register of Actions)
Stutz Artiano Shinoff & Holtz, APC v. Larkins
Case Number D062738
Date Description Notes
10/02/2012 Notice of appeal lodged/received.
filed on September 4, 2012 by Larkins
10/02/2012 Appellate package sent.
10/02/2012 Notice per rule 8.124 - with reporter's
transcript. [filed on] 9/4/12
10/02/2012 Filing fee.
Court data last updated: 10/03/2012 12:05 PM
Docket (Register of Actions)
Stutz Artiano Shinoff & Holtz, APC v. Larkins
Case Number D062738
Date Description Notes
10/02/2012 Notice of appeal lodged/received.
filed on September 4, 2012 by Larkins
10/02/2012 Appellate package sent.
10/02/2012 Notice per rule 8.124 - with reporter's
transcript. [filed on] 9/4/12
10/02/2012 Filing fee.
Injunction against this website overturned in California
Court of Appeal on Aug. 5, 2011
Court of Appeal on Aug. 5, 2011
The Dec. 11, 2009 injunction by Judge Judith Hayes was
overturned by the California Court of Appeal Aug. 5, 2011
overturned by the California Court of Appeal Aug. 5, 2011
Appeals Stutz v. Larkins
Court transcripts
STUTZ MOTION TO
CONSOLIDATE APPEALS 4
AND 5, asking Court of Appeal
to ignore Larkins' Appeal 4, and
allow Stutz to ignore it--without
Stutz being found in default
CONSOLIDATE APPEALS 4
AND 5, asking Court of Appeal
to ignore Larkins' Appeal 4, and
allow Stutz to ignore it--without
Stutz being found in default
#3 Sanctions Petition for Writ
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