B242499

B242499
IN THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION SIX
DAWN L. KANDEL,
Plaintiff and Respondent,
v.
SCOTT C. KANDEL,
Defendant and Appellant.
From an Order Denying a Special Motion to Strike Petition
(C.C.P. 425.16)
The Honorable Judge William Q. Liebmann
[Ventura County Superior Court, Case No. SD037475]
APPELLANT'S OPENING BRIEF
Scott Kandel
447 S. Ventu Park Rd.
Newbury Park, CA 91320
(213) 268-2659
scottkandel@me.com
Defendant and Appellant
In Propria Persona

TABLE OF CONTENTS

APPELLANTS OPENING BRIEF

I. ISSUES OF FIRST IMPRESSION PRESENTED. 1

II. INTRODUCTION. 1

III. STATEMENT OF APPEALABILITY. 3

IV. STATEMENT OF THE CASE. 3

V. STANDARD OF REVIEW. 6

VI. ARGUMENT. THE TRIAL COURT IMPROPERLY DENIED
SCOTT'S SPECIAL MOTION TO STRIKE. 7

A. CCP Section 425.16 Establishes a Structured Two-Step Process
Which the Court Must Use. 7

B. Dawns Petition is Subject to a CCP 425.16 Special Motion to Strike. 9

1. Dawn's Request for a Renewal of an Existing Injunction is a
Petition or Cause of Action for Purposes of the Anti-SLAPP
Statute. 9

a. The Plain Language of the Anti-SLAPP Statute Covers Petitions
and Claims Arising from Protected Speech or First Amendment
Activities. 9

b. There are NO Exemptions for Family Code Sections, the
Domestic Violence Protection Act, or Family Code Section 6345,
in the Anti-SLAPP Statutes. 10

c. The Trial Court Made a Mistake of Law When It Ruled that a
Family Code Section 6345 Request to Renew Restraining Order
was NOT Subject to the Anti-SLAPP Statute. 14
[i]

C. Scott Met His Burden of Showing That Dawn's Petition Arose from
Scott's Speech and Petitioning Activity as Defined in CCP Section
425.16. 16

Dawn Alleged Scotts Conduct of Exercising His First Amendment
Rights of Speech Related to Issues of Public Interest on the Internet
in Support of Her Injunctive Request; Speech Which is Protected
Under the First Prong of the Anti-SLAPP Analysis. 21

Dawn Also Alleged Scotts Conduct of Exercising His First
Amendment Rights Related to Petitioning for the Redress of
Grievances in Support of Her Injunctive Request; Acts Too Which
are Protected Under the First Prong of Anti-SLAPP Analysis. 22

4.
Dawn's Petition Contains Requests for Prior Restraint Orders, in
Violation of the First Amendment, Which Facially Shows Her
Petition Must Pass the First Prong of the Anti-SLAPP Analysis on
a Prior Restraint Basis Alone. 23

Though She Tried to Amend Her Petition, Both in Her Anti-SLAPP
Responsive Papers and in Open Court, Dawn is Not Allowed to Do
So Under Authoritative Case Law. 28

D. Dawn Did Not Establish a Probability of Prevailing on Her Petition. 30

Dawns Petition Fails On Several Distinct Grounds, Including
Constitutional, Procedural, Substantive, and on Its Merits. 31

a. Petitioning for Renewal Under Family Code 6345. 31

b. Family Code 6345 is, Facially and As-Applied to Scott,
Unconstitutional Under the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Article I,
Section 24 of the California Constitution. 31

1.
3.
2.
1.

[ii]

TABLE OF CONTENTS

c. A Family Code 6345 Injunction is Legally Infirm, on Its Face
and/or As Applied to Scott, Under the Doctrines of Res Judicata
and/or Collateral Estoppel. 38

d. As a Matter of Law, Dawns Petition Must Also Fail Because She
is Attempting to Renew an Injunction that is now EXPIRED. 40

e. As a Matter of Law, Dawns Petition for RENEWAL Must Too
Fail Because She is Attempting to CHANGE Material Terms of
the Prior Order. 41

f. Even Strictly on Its Merits, Dawns Petition Cannot Succeed, as
There is Neither Evidentiary Support Nor Persuasive Arguments
Presented by Her. 42

g. Dawns Requested Injunctive Relief is Overly Broad and
Unconstitutional, Given the Alleged Circumstances of the
Instant Case. 46

E. Contrary to Dawns Assertion, Scotts CCP Section 425.16
Anti-SLAPP Special Motion to Strike is NOT Frivolous. 48

VII. SCOTTS STATUS AS A PRO PER LITIGANT SHOULD BE
GIVEN DUE AND PROPER CONSIDERATION. 49

VIII. CONCLUSIONARY PRAYERS. 51

WORD COUNT CERTIFICATION 53

[iii]

TABLE OF AUTHORITIES

Cases

Alexander v. U.S. (1993)
509 U.S. 544 .......................................................................................................................... 24
Ampex Corp. v. Cargle (2005)
128 Cal.App.4th 1569 ......................................................................................................... 19
Ashe v. Swenson (1970)
397 U.S. 436 .......................................................................................................................... 37
Barrett v. Rosenthal (2006)
40 Cal.4th 33 ........................................................................................................................ 19
Bradbury v. Superior Court (1996)
49 Cal.App.4th 1170 ........................................................................................................... 16
Briggs v. Eden Council for Hope and Opportunity (1999)
19 Ca1.4th 1106 ................................................................................................................... 16
Carroll v. President & Com'rs of Princess Anne (1968)
393 U.S. 175 .......................................................................................................................... 25
Chaker v. Mateo (2012)
D058753, WL4711885, Cal.App.4
th
................................................................................... 17
City of Los Angeles v. Animal Defense League (2006)
37 Cal.Rptr.3d 632 ............................................................................................................. 12
Coffman Specialties, Inc. v. Dept. of Transportation (2009)
176 Cal.App.4th 1135 ......................................................................................................... 32
Crosby v. Bradstreet Company (2d Cir. 1963)
312 F.2d 483 ......................................................................................................................... 24
Curtis Publishing Co. v. Butts (1967)
388 U.S. 130 .......................................................................................................................... 25
Dailey v. Superior Court (1896)
112 Cal. 94 ............................................................................................................................ 24
DVD Copy Control Assn. v. Burner (2003)
31 Ca1.4th 864 ..................................................................................................................... 23
Equilon Enterprises v. Consumer Cause (2002)
29 Ca1.4th 53 ......................................................................................................................... 8
Fair Political Practices Com. v. Superior Court (1979)
25 Cal.3d 33 ......................................................................................................................... 26
Ferlauto v. Hamsher (1999)
74 Cal.App.4th 1394 ........................................................................................................... 20
Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011)
193 Cal.App.4th 435 ............................................................................................................. 6
Gilbert v. National Enquirer, Inc. (1996)
43 Cal.App.4th 1135 ........................................................................................................... 25


Global Telemedia Intern.. Inc. v. John Doe I (C.D. Ca1.2001)
132 F.Supp.2d 1261 ............................................................................................................. 18
Governor Gray Davis Committee v. American Taxpayers' Alliance (2002) 102
Cal. App.4th 449 ................................................................................................................... 6
Hecimovich v. Encinal School Parent Teacher Organization (2012)
203 Cal.App.4th 450 ........................................................................................................... 20
Hoffman Estates v. Flipside, Hoffman Estates (1982)
455 U.S. 489 .......................................................................................................................... 36
Hudson v. United States (1997)
522 U. S. 93 ........................................................................................................................... 34
Hurvitz v. Hoefflin (2000)
84 Cal.App.4th 1232 ........................................................................................................... 24
In re Marriage of Burkle (2006)
135 Cal.App.4th 1045 ......................................................................................................... 26
In re Marriage of Candiotti (1995)
34 Cal.App.4th 718 ............................................................................................................. 24
In re Sheena K. (2007)
40 Cal.4th 875 ...................................................................................................................... 47
James v. San Jose Mercury News, Inc. (1993)
17 Cal.App.4th 1 ................................................................................................................. 20
Jarrow Formulas v. LaMarche (2003)
31 Ca1.4th 728 ...................................................................................................................... 10
Kennedy v. Mendoza-Martinez (1963)
372 U.S. 144 .......................................................................................................................... 35
Krinsky v. Doe 6 (2008)
159 Cal.App.4th 1154 ......................................................................................................... 18
Kristine M. v. David P. (2006)
135 Cal.App.4th 783 ........................................................................................................... 35
Lefebvre v. Lefebvre (2011)
199 Cal.App.4th 696 ............................................................................................................. 7
Lewis v. Superior Court (1978)
77 Cal.App.3d 844 .............................................................................................................. 38
Loeffler v. Medina (2009)
174 Cal.App.4th 1495 ......................................................................................................... 15
Lucido v. Superior Court (1990)
51 Cal.3d 335 ....................................................................................................................... 39
Maggi v. Superior Court (2004)
119 Cal.App.4th 1218 ......................................................................................................... 25
Metropolitan Opera Ass'n, Inc. v. Local 100 (2d.Cir.2001)
239 F.3d 172 ......................................................................................................................... 24


Morningstar, Inc. v. Superior Court (1994)
23 Cal.App.4th 676 ............................................................................................................. 20
Mycogen Corp. v. Monsanto Co. (2002)
28 Cal.4th 888 ...................................................................................................................... 38
Navarro v. IHOP Properties, Inc. (2005)
134 Cal.App.4th 834 .......................................................................................................... 11
Navellier v. Sletten (2002)
29 Ca1.4th 82 ........................................................................................................................ 10
Near v. Minnesota (1931)
283 U.S. 697 .......................................................................................................................... 25
Nebraska Press Assn. v. Stuart (1976)
427 U. S. 539 ......................................................................................................................... 36
New York Times Co. v. United States (1971)
403 U.S. 713 ....................................................................................................................... 25, 26
North Carolina v. Pearce (1969)
395 U. S. 711 ......................................................................................................................... 31
Nygard, Inc. v. Uusi-Kerttula (2008)
159 Cal.App.4th 1027 ......................................................................................................... 21
Organization for a Better Austin v. Keefe (1971)
402 U.S. 415 .......................................................................................................................... 26
People v. Garcia (1993)
19 Cal.App.4th 97 ............................................................................................................... 47
People v. Oates (2004)
32 Cal.4th 1048 ................................................................................................................... 12
Ritchie v. Konrad (2004)
10 Cal.Rptr.3d 387, 115 Cal.App.4th 1275 .......................................................... 15, 36, 42
Robertson v. Rodriguez (1995)
36 Cal.App.4th 347 ............................................................................................................. 30
Rosicrucian Fellow v. Rosicrucian Etc. Ch. (1952)
39 Cal.2d 121 ....................................................................................................................... 25
Ross v. Figueroa (2006)
139 Cal.App.4th 856 ........................................................................................................... 50
Seelig v. Infinity Broadcasting Corp. (2002)
97 Cal.App.4th 798 ............................................................................................................... 7
Sierra Club v. State Bd. of Forestry (1994)
7 Cal.4th 1215 ..................................................................................................................... 12
Silk v. Feldman (2012)
208 Cal.App.4th 547 ............................................................................................................. 7
Smith v. Doe (2003)
538 U.S. 84 ............................................................................................................................ 34


Southeastern Promotions, Ltd. v. Conrad (1975)
420 U.S. 546 .......................................................................................................................... 26
State v. Hoffman (1997)
146 N.J. 564 ............................................................................................................................ 3
Sturgeon v. Bratton (2009)
174 Cal.App.4th 1407 ......................................................................................................... 33
Summit Bank v. Rogers (2012)
206 Cal.App.4th 669 ........................................................................................................... 17
Terry v. Davis Community Church (2005)
131 Cal.App.4th 1534 ......................................................................................................... 20
Thomas v. Quintero (2005)
126 Cal. App 4th 635 ................................................................................................... 12, 14
Traditional Cat Assn., Inc. v. Gilbreath (2004)
118 Cal.App.4th 392 ........................................................................................................... 30
United States v. Dixon (1993)
509 U.S. 688 .......................................................................................................................... 38
United States v. Ward (1980)
448 U.S. 242 .......................................................................................................................... 34
Varian Medical Systems, Inc. v. Delfino (2003)
6 Cal.Rptr.3d 325 ................................................................................................................ 24
Wilbanks v. Wolk (2004)
121 Cal.App.4th 883 ........................................................................................................... 19
Wilcox v. Superior Court (1994)
27 Cal.App.4th 809 ............................................................................................................. 30
Wilson v. Parker, Covert and Chidester (2002)
28 Ca1.4th 811 ....................................................................................................................... 8

Statutes

Code of Civil Procedure (CCP) 425.16 ................................................................... passim
CCP 425.16, subd. (a) ............................................................................................................ 9
CCP 425.16, subd. (c) .......................................................................................................... 51
CCP 425.16, subd. (d) .................................................................................................. 10, 12
CCP 425.16, subd. (e) ............................................................................................................ 8
CCP 425.16, subd. (e)(1) ..................................................................................................... 22
CCP 425.16, subd. (h) ........................................................................................................... 9
CCP 425.16, subd. (j) ............................................................................................................. 3
CCP 425.17 ................................................................................................................... passim
CCP 425.17, subd. (a) ........................................................................................................ 11


CCP 425.17, subd. (b) and (c) .......................................................................................... 11
CCP 527.6 ............................................................................................................................ 12
CCP 527.8 ............................................................................................................................ 12
CCP 904.1, sub. (a)(13) ......................................................................................................... 3
Domestic Violence Prevention Act (DVPA) [Division 10: 6200 - 6409] ......... passim
Family Code (FC) 6345 .............................................................................................. passim
Family FC 6345 (a) .............................................................................................................. 31
Stats. 1997, ch. 271, 1, amending subd. (a) ...................................................................... 16

Other Authorities

California Judicial Council, California Protective Orders
VIII. [7.8] Duration of Order ........................................................................................... 15
Cohen, Stanley, Visions of Social Control: Crime, Punishment and Classification
(1985) Blackwell Publishers Ltd. ...................................................................................... 37
Comment, Cybersmear or Cyber-SLAPP: Analyzing Defamation Suits Against
Online John Does as Strategic Lawsuits Against Public Participation (2001)
25 Seattle U. L.Rev. 213 ...................................................................................................... 18
Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace
49 Duke L.J. 855 .................................................................................................................. 18
Weber, Defining Cyberlibel: A First Amendment Limit for Libel Suits Against
Individuals Arising from Computer Bulletin Board Speech (1995)
46 Case W. Res. L.Rev. 235 ................................................................................................ 18

Constitutional Provisions

California Constitution, Article I, Section 15 ................................................................ 1, 40
California Constitution, Article I, Section 24 ................................................................ 1, 40
California Constitution, Article I, Section 7 ........................................................................ 1
California Constitution, Article I, Section 2, subd. (a) ..................................................... 24
U.S. Constitution, Fifth Amendment .......................................................................... passim
U.S. Constitution, First Amendment .......................................................................... passim
U.S. Constitution, Fourteenth Amendment .................................................................. 1, 40
U.S. Constitution, Second Amendment ............................................................................. 36

1
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I. ISSUES OF FIRST IMPRESSION PRESENTED.
A. Is the Code of Civil Procedure (CCP) 425.16 Anti-SLAPP
1
statute
applicable to Family Code (FC) sections?
B. Can the Anti-SLAPP statute be applied to Domestic Violence
Prevention Act [Division 10: 6200 - 6409] petitions?
C. Is a Request to Renew Restraining Order under Family Code 6345
7 Jcause of actionK and/AB 7 JpetitionK subject to the Anti-SLAPP
statute?
D. Does a request for an injunction which contains a prior restraint
order, in violation of the First Amendment, standing alone, meet
the test of the first prong of the two part Anti-SLAPP analysis?
E. Can an expired restraining order be renewed under Family Code
6345 without violating Due Process protections afforded by the
Fifth and Fourteenth Amendments to the U.S. Constitution or
Article I, Sections 7 and 15 of the California Constitution?
F. Is a Request to Renew Restraining Order under Family Code 6345
that contains substantive changes to the terms of the original order
a renewal or an entirely new injunctive order request?
G. Is a an extension to a restraining order based on a Request to
Renew Restraining Order under Family Code 6345, when there is
no new evidence since the issuance of the original restraining
order, facially and/or as-applied, unconstitutional Double Jeopardy,
under the Fifth Amendment to the U.S. Constitution or Article I,
Section 24 of the California Constitution?
II. INTRODUCTION.
Appellant and defendant Scott Kandel ("Scott"
2
or "appellant") appeals the Trial
Court's order denying his Special Motion to Strike, brought pursuant to the Anti-SLAPP
law, Code of Civil Procedure section 425.16.
3
1
Unless otherwise indicated, all statutory references herein to the Anti-SLAPP statutes are
to Code of Civil Procedure sections 425.16 and 425.17.
2
The parties are referred to by their first names, not from disrespect but to ease the
reader's task.
2
%22)..%05L4 12)0-0+ &3-)*
Respondent and plaintiff Dawn Kandel (Dawn or respondent`) petitioned
the Superior Court for an extension of an injunction against her estranged husband,
Scott. An Anti-SLAPP Special Motion to Strike was filed by Scott, based on his belief
that all the evidence Dawn proffered in support of her petition directly implicated his
First Amendment rights while the petition itself blatantly attempted to chill those
rights. Scott met his burden of showing that Dawn's petition, a Request to Renew
Restraining Order (Petition), arose from Scott's protected speech activity of
allegedly writing and posting on public Internet forums, as well as petitioning for the
redress of grievances from those who allegedly had wronged him. Dawn failed to
satisfy her burden of showing a probability of prevailing on her claims; she failed on
multiple and distinct points of law, constitutional and otherwise, while being unable to
produce any admissible evidence.
However, the Trial Court found that Dawn`s Petition was not a cause oI action
under the Anti-SLAPP statutes and denied Scott's motion. The Trial Court erred.
Dawn`s Petition is a meritless SLAPP as it would have the effect of chilling Scott`s First
Amendment rights and the Trial Court's order denying Scott's motion should be
reversed.
As instructive to this case, a sister state, New Jersey, once saw its Supreme
Court so eloquently opine, We recognize that in the area of domestic violence, as in
some other areas in our law, some people may attempt to use the process as a sword
3
Unless otherwise indicated, all statutory references herein referenced as CCP are to
the California Code of Civil Procedure and FC to the California Family Code.
3
%22)..%05L4 12)0-0+ &3-)*
rather than as a shield. (State v. Hoffman (1997) 146 N.J. 564) (emphasis added). In
this context, Dawn`s Petition is being used as a sword in yet another gratuitous attempt to
cut off and/or limit Scott`s First Amendment and other fundamental rights.
III. STATEMENT OF APPEALABILITY.
Scott appeals from an order denying his special motion to strike, brought pursuant
to CCP 425.16, which is an appealable order pursuant to sections CCP 904.1,
subdivision (a)(13), and CCP 425.16, subdivision (j).
IV. STATEMENT OF THE CASE.
On May 29
th
, 2008, respondent Dawn filed for divorce from appellant Scott in the
Ventura County Superior Court.
On April 23
rd
, 2009, Dawn requested a five-year injunctive order against Scott,
restraining him from the respondent and their minor children; this, among her several
requests to restrict his fundamental constitutional and other rights. (Joint Appendix [JA]
16:Items 6 & 7, 18:Item 28).
At a hearing on May 18th, 2009 on the matter, the court granted Dawn a three-
year injunctive order against Scott for what the 730 Child Custody Evaluator finally
determined to be onIy IIippant remarks on the telephone (JA 230:19-21), while also
explicitly excluding the children from that order. (JA 15:Item 2 [Explicit removal of
children from the order]). Dawn testified that Scott had never hit her or the children and
had not committed acts of physical violence. (JA 92:6-13).
4
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On May 16
th
, 2012, two years and 364 days after the restraining order was issued
and two day before it was to naturally expire, Dawn filed an ex parte application to renew
the injunction against Scott, this time for another five-year period, citing FC 6345, and
using the Judicial Council oI CaIiIornia`s form DV-700 as her Petition. (JA 4 73).
Dawn requested substantive changes to the terms of the prior injunction. (JA 8:22-23,
7:8-10). One of these changes included a request for Prior Restraint on Scott`s speech
and expression. (JA 8:22-23).
On May 17
th
, 2012, Scott filed his opposition to the ex parte application. (JA 74
115). That same day, an ex parte hearing was held in the Ventura County Superior Court
(Reporter`s Transcript |RT] 1 15), at which the Honorable Judge William Q. Liebmann
made the following important rulings: 1.) all the material evidence submitted by Dawn
in her exhibits was determined to be inadmissible hearsay, which lacked authentication
and foundation (RT 5:5-12, 8:18-21); and 2.) issued an order which stated, The
restraining order that is currently in place and expires on May 18, 2012, is not extended
pending the hearing date. (JA 117) (emphasis added). Also at the ex parte hearing,
Scott requested a contested hearing on Dawn`s request to renew the injunctive order
against him, and Dawn selected July 10
th
, 2012 as the date for that hearing. (RT 4:7,
14:1-4).
AIter receiving and reviewing Dawn`s complete Request to Renew Restraining
Order Petition, and then coming to understand that the gravamen of Dawn`s request IuIIy
implicated Scott`s First Amendment rights while also attempting to chill those rights,
5
%22)..%05L4 12)0-0+ &3-)*
Scott filed an Anti-SLAPP Special Motion to Strike on June 4
th
, 2012. (JA 118 153).
The hearing date for the Anti-SLAPP motion was set for July 3
rd
, 2012. (JA 119:Item
2(a)).
In response to Scott`s Anti-SLAPP motion, Dawn filed her opposition on June
20
th
, 2012. (JA 154 193). In her response, among other things, her attorney, Paul F.
Moore II, by declaration and through argument, asserted that Scott`s Anti-SLAPP motion
was frivolous and misguided. (JA 164:18-20, JA 157:7). In addition, Dawn attempted to
amend her May 16
th
, 2012 Petition to no longer include substantive modifications to the
now expired injunction. (JA 158:7-8). Further, she asserted no objections to any
evidence provided by Scott in his Anti-SLAPP moving papers.
On June 26
th
, 2012, Scott filed a reply to Dawn`s Anti-SLAPP opposition. (JA
194 368). In his reply, among other things, Scott detailed why he believed the Anti-
SLAPP motion was not frivolous (JA 198:19 199:12, 233:7-14, 236:14-17), why the
gravamen oI Dawn`s Petition did impIicate his First Amendment rights (JA 130:15
135:2, 199:14 211:9), why Dawn showed no probability of success on the second prong
of the Anti-SLAPP test (JA 211:11 226:18), as well as thoroughly replying to and
rebutting all the substantive points argued by Dawn in her responsive pleadings. (JA
226:20 232:18).
On July 3
rd
, 2012, a hearing was held on the Anti-SLAPP motion. (RT 16 30).
Scott requested a Statement of Decision, which he was not formally granted. (RT 16:18-
19). At that hearing, the Honorable Judge William Q. Liebmann DENIED Scott`s Anti-
6
%22)..%05L4 12)0-0+ &3-)*
SLAPP Special Motion to Strike (JA 370), while making the following material rulings:
1.) the Trial Court didn`t beIieve a Request to Renew Restraining Order was a cause oI
action under the Anti-SLAPP statutes (RT 18:3-16, 20:20-27); 2.) if the Trial Court
thought it was a cause oI action , it would have considered the motion on its merits (RT
19:2-5); 3.) it was NOT a frivolous motion (RT 30:15-25); and 4.) the contested FC
6345 hearing, then scheduled for July 10
th
, 2012, would be automatically stayed if an
appeal was filed by Scott (RT 28:8-13); an appeal which was filed later that same day.
(JA 373).
Furthermore, Dawn attempted to, in open court and on the record, again amend
her Petition so that it was no longer within the perimeter of the Anti-SLAPP statute.
(RT 22:13-14). Further, Dawn made no objections on the record to any declarations,
exhibits, and other evidence submitted by Scott in his opposition pleadings related to
her Request to Renew Restraining Order Petition or Scott`s Anti-SLAPP Special
Motion to Strike Moving and Reply papers.
V. STANDARD OF REVIEW.
The denial of an Anti-SLAPP motion is reviewed de novo. (Gerbosi v. Gaims,
Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444). Whether CCP section
425.16 applies and whether the plaintiff has shown a probability of prevailing are
reviewed independently on appeal. (Governor Gray Davis Committee v. American
Taxpayers' Alliance (2002) 102 Cal. App.4th 449, 455).
7
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VI. ARGUMENT. THE TRIAL COURT IMPROPERLY DENIED SCOTT'S
SPECIAL MOTION TO STRIKE.
A. CCP Section 425.16 Establishes a Structured Two-Step Process Which
the Court Must Use.
The LegisIature enacted the anti-SLAPP statute to address the societal ills caused
by meritless lawsuits that are IiIed to chiII the exercise oI First Amendment rights.
(Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 702). The Anti-SLAPP statute
authorizes a defendant to file a special motion to strike meritless causes of action that
threaten these rights at the earliest stage of the trial court proceedings.
In analyzing a CCP section 425.16 motion, the trial court engages in a two step
process. (Silk v. Feldman (2012) 208 Cal.App.4th 547, 553).
The statute requires two steps Ior striking a cause oI action. (Lefebvre v.
Lefebvre, supra, at p. 702). In the Iirst prong, the court is tasked with determining
whether the defendant has made a threshold showing that the challenged cause of action
is one arising Irom` protected activity. (Ibid.) If the defendant makes such a showing,
the court proceeds to the second prong to determine whether the plaintiff has
demonstrated a probabiIity oI prevaiIing` on his or her cIaim. (Ibid.)
The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at
an early stage of the proceedings. (Seelig v. Infinity Broadcasting Corp. (2002) 97
Cal.App.4th 798, 806 [119 Cal.Rptr.2d 108]).
The defendant must make a threshold showing that the plaintiff's cause of action
arises from any act of the defendant in furtherance of the right of petition and/or the right
8
%22)..%05L4 12)0-0+ &3-)*
of free speech. (CCP 425.16, subd. (b)(1)
4
; Equilon Enterprises v. Consumer Cause
(2002) 29 Ca1.4th 53, 67 (Equilon). Subdivision (e) of the Anti-SLAPP statute sets
forth a nonexclusive list of four categories of acts covered under the statute.
5
Once a defendant shows the statute applies, the burden shifts to the plaintiff to
demonstrate a probability of prevailing on his claims. (CCP 425.16, subd. (b)(1))
(Equilon, supra, 29 Cal.4th at p. 67). In order to establish a probability of prevailing, the
pIaintiII must demonstrate that the complaint is both legally sufficient and supported by
a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the pIaintiII is credited. (Wilson v. Parker, Covert and Chidester (2002) 28
Ca1.4th 811, 821) (citations and internal quotation marks omitted).
As discussed below, Scott met his burden while Dawn did not meet her burden.
Therefore, the trial court erred in denying Scott's Special Motion to Strike.
4
Subdivision (b)(1) provides: A cause oI action against a person arising Irom any act oI
that person in furtherance of the person's right of petition or free speech under the
United States or California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the pIaintiII wiII prevaiI on the cIaim.
5
Subdivision (e) sets Iorth categories oI acts covered by section 425.16 as IoIIows: (1)
any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration or review by
a legislative, executive, or judicial body, or any other official proceeding authorized by
law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional
right oI Iree speech in connection with a pubIic issue or an issue oI pubIic interest.
9
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B. (7G@LC Petition is Subject to a CCP 425.16 Special Motion to Strike.
1. Dawn's Request for a Renewal of an Existing Injunction is a
J2;D>D>A@K AB J'7EC; A< %8D>A@K for Purposes of the Anti-SLAPP
Statute.
The Trial Court based its ruling solely on the erroneous conclusion that a petition
for a renewal of an injunction pursuant to FC 6345 is not a cause oI action under
CCP 425.16 and therefore is not subject to the Anti-SLAPP law. (RT 18:3-16, 20:20-
27). That conclusion is contrary to the express language of CCP 425.16 and 425.17,
the intent of Legislature, controlling case law, and other relevant and reliable sources.
a. The Plain Language of the Anti-SLAPP Statute Covers
Petitions and Claims Arising from Protected Speech or First
Amendment Activities.
In 1992, in response to the disturbing increase in meritIess Iawsuits brought to
chill the valid exercise of the constitutional rights of freedom of speech and petition for
the redress oI grievances, the Legislature overwhelmingly enacted California's Anti-
SLAPP law, Code of Civil Procedure, section 425.16. The Legislature intended CCP
section 425.16 to protect against abuse oI the judiciaI process. (CCP 425.16, subd.
(a)). The statute covers [a] cause of action against a person arising Irom specified
petition or speech activity. (CCP 425.16, subd. (b)(1)). The statute expressly states
that the deIinition oI a compIaint incIudes a petition; Dawn`s IiIing was a petition
under the Anti-SLAPP statute. (CCP 425.16, subd. (h)) (emphasis added).
In holding that an action was subject to CCP 425.16, the California Supreme
Court held that the pIain Ianguage oI the arising Irom` prong encompasses any action
based on protected speech or petitioning activity as deIined in the statute. (Jarrow
10
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Formulas v. LaMarche (2003) 31 Ca1.4th 728, 734 (Jarrow Formulas)), citing Navellier
v. Sletten (2002) 29 Ca1.4th 82, 89-95 (Navellier). [I]n choosing comprehensive
language for the anti-SLAPP statute's arising Irom` prong, the Legislature recognized
that all kinds of claims could achieve the objective of a SLAPP suit. Under the remedial
scheme the Legislature crafted, therefore, the nature or form of the action is not what is
critical but rather that it is against a person who has exercised certain rights. (Jarrow
Formulas, supra, at p. 739, quoting Navellier, supra, at pp. 92-93, and Equilon
Enterprises, supra, at p. 60) (citations and internal quotation marks omitted).
b. There are NO Exemptions for Family Code Sections, the
Domestic Violence Protection Act, or Family Code Section
6345, in the Anti-SLAPP Statutes.
In 1992, the Legislature specifically exempted from section CCP 425.16
enforcement actions brought in the name of the people of the State of California by the
Attorney General, district attorney, or city attorney acting as a public prosecutor.
(CCP 425.16, subd. (d)). Thus, [t]he Legislature clearly knows how to create an
exemption from the anti-SLAPP statute when it wishes to do so. (Jarrow Formulas,
supra, at p. 735).
As our Supreme Court noted when applying CCP 425.16 to contract and
Iraud cIaims, nothing in the statute itself categorically excludes any particular type
of action from its operation, and no court has the power to rewrite the statute so as to
make it conform to a presumed intention which is not expressed. (Navellier, supra,
at p. 92) (internal citations omitted).
11
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Though apparently never directly addressed in published case law and, thus,
creating several issues of first impression, by its clear language, the Legislature did
NOT carve out any general exemptions in the Anti-SLAPP statutes for Family Code
sections. (CCP 425.16 and 425.17). Nor did the Legislature exempt any sections
of the Domestic Violence Protection Act [Division 10: Sections 6200 - 6409].
(Ibid.) Finally, no exemption from the Anti-SLAPP statutes were described for a
petition brought under Family Code 6345, which is named by the Judicial Council
of California as a Request to Renew Restraining Order on the Judicial Council`s DV-
700 form. (Ibid.)
CCP 425.17 was adopted in 2003 to address a disturbing abuse of Section
425.16 ... (CCP 425.17, subd. (a)). CCP 425.17 exempts certain lawsuits from
the ambit of CCP 425.16, the primary Anti-SLAPP statute. As such, it raises a
threshold issue, and we address it prior to examining the applicability of section
425.16. (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 840 [36
Cal.Rptr.3d 385]). Tellingly, no exemptions were enumerated at that time by the
Legislature for the Family Code generally, the Domestic Violence Protection Act
more specifically, or, as is most important to Scott`s Anti-SLAPP motion, a FC
6345 petition. (CCP 425.17 Subdivisions (b) and (c)).
As pertains to the case at bar, complaints as well as petitions for injunctive
relief are subject to Anti-SLAPP motions. "[F]acially the anti-SLAPP statute
applies to "petitions" and no exception is made for one filed under the civil
12
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harassment statute (CCP 527.6). Indeed, the anti-SLAPP statute expressly exempts
some forms of legal proceedings from the scope of the statute (CCP 425.16, subd.
(d)), leading us to that old saw of statutory construction, "expressio unius est exclusio
alterius." "Under the maxim of statutory construction, expressio unius est exclusio
alterius, if exemptions are specified in a statute, we may not imply additional
exemptions unless there is a clear legislative intent to the contrary. [Citation.]"
(Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230, [32 Cal.Rptr.2d
19, 876 P.2d 505], original italics; see also People v. Oates (2004) 32 Cal.4th 1048,
[12 Cal.Rptr.3d 325, 88 P.3d 56]). (Thomas v. Quintero (2005) 126 Cal. App 4th
635, 626 (Thomas)) (emphasis added).
Similar reasoning was expressed in City of Los Angeles v. Animal Defense
League (2006) 37 Cal.Rptr.3d 632, 651 (City of Los Angeles). In that case, the court
opined, Ferdin and ADL-LA appeal from the trial court's orders, contending the
petitions are not enforcement actions within the meaning of section 425.16,
subdivision (d), and therefore are subject to a special motion to strike; the City's
petitions for injunctive relief arise from acts in furtherance of their right of petition or
free speech under the United States and California Constitutions; and the City has
failed to demonstrate a probability it will prevail on its claims under section 527.8.
We agree with Ferdin and ADL-LA on all three points and reverse the trial court's
orders. (City of Los Angeles, Id. at p. 635) (emphasis added).
13
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Though Thomas was a proceeding involving a CCP 527.6 petition related to
Civil Harassment and the City of Los Angeles was a dispute regarding a CCP
527.8 Workplace Violence petition, the statutory scheme and process for petitioning
in both those realms are so analogous to that of the LegisIature`s Domestic Violence
scheme as defined in Division 10: FC Sections 6200 I 6409, as well as on the
CaIiIornia JudiciaI CounciI`s petition/request forms DV-100, DV-700, CH-100, CH-
700, WV-100, and WV-700, that the same legal reasoning must apply equally to all
three injunctive mechanisms.
A judicially-created exemption for claims for injunctive relief under FC
6345 would allow such claims to be used, as in the instant case, to attack a family
member`s peaceful speech and petitioning activities, which would undermine the
Legislature's expressed intent for CCP 425.16 to protect those who exercise their
constitutional rights of petition and speech from such abuse of the judicial process.
Whereas here, legislative intent is expressed in unambiguous terms the court`
must treat the statutory Ianguage as concIusive. (Jarrow Formulas, supra, at p. 736,
quoting Equilon Enterprises, supra, at p. 61) (internal quotation marks omitted).
14
%22)..%05L4 12)0-0+ &3-)*
c. The Trial Court Made a Mistake of Law When It Ruled that
a Family Code Section 6345 Request to Renew Restraining
Order was NOT Subject to the Anti-SLAPP Statute.
The TriaI Court ruIed thusIy, But as far as the application of 425.16, this is
not a cause of action under that section; therefore, I am denying the motion. (RT
20:25-27) (emphasis added).
Case law supports the contention that a Family Code 6345 petition is subject
to an Anti-SLAPP Special Motion to Strike. |T]he anti-SLAPP statute allows for a
special motion to strike to be IiIed against any cause of action against a person
arising from any act of that person in furtherance of the person's right of petition or
free speech under the United States or California Constitution in connection with a
pubIic issue....` ( 425.16, subd. (b)(1)). What constitutes a cause oI action` is not
further defined by statute. However, elsewhere in the anti-SLAPP statute the phrase is
used interchangeably with the nouns "claim" ( 425.16, subd. (b)(3)), "complaint" (
425.16, subd. (f)), "action" ( 425.16, subd. (c)), and the phrase "the facts upon
which the liability or defense is based" ( 425.16, subd. (b)(2)). The statute also
defines "complaint" to include "cross-complaint" and, importantly here, "petition" (
425.16(h)). (Thomas, supra, at p. 625) (emphasis added).
Until today, no court has decided the precise question of whether a petition
filed for injunctive relief under California's civil harassment statute is subject to a
special motion to strike under the anti-SLAPP statute. However, facially the anti-
SLAPP statute applies to "petitions" and no exception is made for one filed under
the civil harassment statute ( 527.6). (Ibid.) (emphasis added).
15
%22)..%05L4 12)0-0+ &3-)*
Loeffler v. Medina touches directly on this issue as related to injunction renewal
requests: Ritchie sets forth the standards that apply when a party is seeking to renew an
expiring domestic violence restraining order. (Ritchie v. Konrad (2004) 115 Cal.App.4th
1275, 1290.) Because the person seeking the renewal of the order is the petitioning party,
that party bears the burden of establishing by a preponderance of the evidence that he or
she still has a reasonable apprehension of future abuse. (Ibid.) (Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504) (emphasis added). It is elementary logic, then, to
conclude that a petitioning party must have IiIed a related petition.
In further support of the argument that a FC 6345 Request to Renew
Restraining Order is a petition for an injunction subject to the Anti-SLAPP statute, the
2010 Judges Guide To Domestic Violence Cases, California Protective Orders, [Revised
2010], states, Injunction. The duration of the injunction is for a maximum of three
years. CCP 527.8(f). Note: The plaintiff may apply for renewal of the injunction at any
time within 3 months of its expiration by filing a new petition. CCP 527.8(f).
(California Judicial Council, California Protective Orders, VIII. [7.8] Duration of
Order, p. 88) (emphasis added). This aforementioned reference directly answers the
question of whether a FC 6345 Request to Renew Retaining Order is, for purposes of
the Anti-SLAPP statute, a petition. It most certainly must be, as the statutory
framework and process for a Request to Renew Civil Harassment Restraining Order
are substantively the same as that under FC 6345.
16
%22)..%05L4 12)0-0+ &3-)*
Though this petition issue related specifically to a FC 6345 is apparently
another issue of first impression, the legal definitions and reasoning that should be
applied to Domestic Violence injunction renewal requests are the same as those
related to Civil Harassment renewals. Thus, CCP 425.16 should apply equally to
both injunctive relief mechanisms since a renewal request for each is, indeed, a
petition.
Given the case law and arguments tendered above, it is apparent that the Trial
Court made an error of Iaw by denying Scott`s Anti-SLAPP motion based on the
Anti-SLAPP statue not being applicable to Dawn`s FC 6345 Petition.
C. Scott Met His Burden of Showing That Dawn's Petition Arose from
Scott's Speech and Petitioning Activity as Defined in CCP Section 425.16.
In 1997, the Legislature unanimously amended the anti-SLAPP statute, expressly
requiring that the statute be construed broadIy. (Stats. 1997, ch. 271, 1, amending
subd. (a)).
In 1999, the California Supreme Court directed that courts, whenever possible,
should interpret the First Amendment and section 425.16 in a manner 'favorable to the
exercise of freedom of speech, not to its curtaiIment. (Briggs v. Eden Council for Hope
and Opportunity (1999) 19 Ca1.4th 1106, 1119, quoting Bradbury v. Superior Court
(1996) 49 Cal.App.4th 1170, 1176).
Interestingly if not presciently the majority opinion ends with the observation
that |i]I we today mistake the LegisIature`s intention, the LegisIature may easiIy amend
17
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the statute. (Id. at p. 1123). The fact remains, to this day and long after Briggs, the
Legislature has never taken the Supreme Court up on its offer to amend the Anti-SLAPP
statute in this context to further narrow its broad scope.
Dawn`s Petition is primarily directed at Scott`s speech activities on pubIic
Internet websites (JA 31 73, 7:1-6, 8:9:28 10:3) and his petitioning activity. (JA 9:3-
5). Her attempt to chiII Scott`s First Amendment rights is the gravamen of her claims
(JA 130:15 135:28, 31 73, RT 17:1-10, 21:26 22:1-8).
The California Court of Appeal recently delivered an Anti-SLAPP published
decision directly on point in the case of Chaker v. Mateo, in which it ruled Internet
postings that contained negative and insulting opinions about a father in a custody dispute
are protected speech and are non-actionable. The Court found that the deIendant`s
statements were protected speech, were of public interest, and, thus, met the first prong of
the Anti-SLAPP test. (Chaker v. Mateo (2012), D058753, WL4711885, Cal.App.4
th
,
Opinion filed October 4
th
, 2012 (Chaker)).
Chaker, in part, relied on another recent Anti-SLAPP published opinion related to
posts on the Internet CraigsIist Rants and Raves` website, in which the Court ruled that
Internet posts Iacked the formality and polish typically found in documents in which a
reader would expect to find facts. (Summit Bank v. Rogers (2012), 206 Cal.App.4th
669, 696I701, 142 Cal.Rptr.3d 40).
[A]ny reader familiar with the culture of . . . most electronic bulletin boards . . .
would know that board culture encourages discussion participants to play fast and loose
18
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with facts. . . . Indeed, the very fact that most of the posters remain anonymous, or
pseudonymous, is a cue to discount their statements accordingIy. (Summit Bank, supra,
206 Cal.App.4th at pp. 696-697).
In determining statements are nonactionable protected speech, a number of recent
and past Anti-SLAPP cases have relied heavily on the fact that statements were made in
Internet forums. (See e.g., Summit Bank; Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154,
1162 (Krinsky); Global Telemedia Intern.. Inc. v. John Doe I (C.D. Ca1.2001) 132
F.Supp.2d 1261, 1267; Lidsky, Silencing John Doe: Defamation & Discourse in
Cyberspace, 49 Duke L.J. 855, 936-937; Comment, Cybersmear or Cyber-SLAPP:
Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against
Public Participation (2001) 25 Seattle U. L.Rev. 213, 217 |Posters on Yahoo! message
boards oIten make outrageous cIaims and [m]ost visitors are completely aware of the
unreIiabIe nature oI these posts]).
The question of whether Scott`s alleged statements were made in a place open to
the public or on a public forum is easily answered. An Internet message board is
essentially "a computerized version of a cork and pin board . . . ." (Weber, Defining
Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from
Computer Bulletin Board Speech (1995) 46 Case W. Res. L.Rev. 235, 238). After
logging in to an Internet bulletin board, a person may post messages, respond to messages
already posted, or simply read the discussions without posting any messages. (Id. at p.
239).
19
%22)..%05L4 12)0-0+ &3-)*
Without doubt, Internet message boards are places open to the public or a
public forum` for purposes of CCP section 425.16. (Barrett v. Rosenthal (2006) 40
Cal.4th 33, 41, fn. 4; D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 [Web sites
accessible to the public are public forums]; Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 897 (Wilbanks) |Web site is pubIic Iorum]. (Ampex Corp. v. Cargle (2005) 128
Cal.App.4th 1569, 1576)
The courts have recognized as well that online blogs and message boards are
places where readers expect to see strongly worded opinions, which are protected speech,
rather than objective facts. (Summit Bank, supra, at p.6 97; also see Krinsky, supra, at p.
1154, 1162 |[t]he use of a pseudonymous screen name offers a safe outlet for the user to
experiment with novel ideas, express unorthodox political views, or criticize individual
behavior without fear oI intimidation or reprisaI]; Global Telemedia Intern., Inc. v. John
Doe 1 (C.D. Cal. 2001) 132 F.Supp.2d 1261, 1267 (Global Telemedia) [finding Internet
postings are full of hyperbole, invective, short-hand phrases and language not generally
found in fact-based documents.]).
To put it mildly, these postings . . . lack the formality and polish typically found
in documents in which a reader would expect to find facts. (Global Telemedia, supra, at
p. 1267; Krinsky, supra, 159 Cal.App.4th at p. 1163 |online discussions may look more
like a vehicle for emotional catharsis than a forum for the rapid exchange of information
and ideas]).
20
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Comments that are no more than rhetorical hyperbole`, vigorous epithet[s]`,
lusty and imaginative expression[s] of . . . contempt`, and Ianguage used in a loose,
figurative sense` have all been accorded constitutionaI protection. (Ferlauto v. Hamsher
(1999) 74 Cal.App.4th 1394, 1401; see also Seelig, supra, 97 Cal.App.4th at p. 809).
Consequently, courts have found the type of name calling, exaggeration, and
ridicule found in posts to be nonactionable free speech. (See, e.g., Krinsky, supra, 159
Cal.App.4th at pp. 1159, 1173 [in a chat room setting, anonymous post that others
consisted oI a cockroach, losers, boobs, and crooks IeII into the grouping oI
crude satiric hyperbole which, while reflecting the immaturity of the speaker, constitute
protected opinion]); Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676,
690-691 [title "Lies, Damn Lies, and Fund Advertisements" nonlibelous as simply
imaginative expression` or rhetorical hyperbole`, traditionally protected under the First
Amendment]; James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 12
[article describing Iawyer as engaging in sleazy, iIIegaI, and unethicaI practice IeII into
protected zone oI imaginative expression or rhetoricaI hyperboIe]).
More recently, cases which have considered the public interest requirement of the
Anti-SLAPP Law have emphasized that the public interest may extend to statements
about conduct between private individuals. (See Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal.App.4th 450, 467 (Hecimovich); Terry v. Davis
Community Church (2005) 131 Cal.App.4th 1534, 1538-1539, 1547). In finding a
public interest within the meaning of the Anti-SLAPP statute, the court in Hecimovich
21
%22)..%05L4 12)0-0+ &3-)*
noted: Like the SLAPP statute itself, the question whether something is an issue of
public interest must be construed broadIy` |Citations.] An issue oI pubIic interest` is
any issue in which the public is interested.` |Citation.] [I]t may encompass activity
between private people. [Citation.]; also see Nygard, Inc. v. Uusi-Kerttula (2008) 159
Cal.App.4th 1027, 1042).
1. Dawn Alleged ScottLC J'A@9E8DK Af Exercising His First
Amendment Rights of Speech Related to Issues of Public Interest
on the Internet in Support of Her Injunctive Request; Speech
Which is Protected Under the First Prong of the Anti-SLAPP
Analysis.
We Iook Ior the principal thrust or gravamen of the plaintiffs cause of action.`
|Citation.] We do not evaluate the first prong of the anti-SLAPP test solely through the
lens of a plaintiff`s cause oI action.` |Citation.] The criticaI consideration` is what the
cause oI action is based on.` [Citation.] (Hecimovich. supra, 203 Cal.App.4th at pp.
464-465).
The website posts, which Dawn attributes to Scott, provide the bulk of her
inadmissible evidence (RT 5:5-21, JA 31 73). These posts are from two websites that
were/are dedicated to free speech and expression and Scott`s alleged exercise thereof (JA
133:19 135:13, 206:10 207:28), thus, squarely falling within the ambit of the Anti-
SLAPP statute. These Internet posts, even if they were written by Scott and admissible
as evidence, were published on a public forum and address topics of public interest under
the broad interpretation oI the Anti-SLAPP case law. These alleged postings that
Dawn allegedly harvested from the referenced websites, even if they were actually
22
%22)..%05L4 12)0-0+ &3-)*
Scott`s, must be considered written and other expressions of his First Amendment rights
on issues of public interest and/or public significance including: divorce, Iathers` rights,
mental health, humor, satire, book writing and publishing, public criticism of and redress
of grievances against corrupt members of Divorce, Inc., public criticism of the justice
system, and public stances against censorship and fascism. (JA 134:22 135:26, 151:6
152:4, 206:10 211:9, 238:11-17).
2. Dawn Also Alleged 48ADDLC J'A@9E8DK Af Exercising His First
Amendment Rights Related to Petitioning for the Redress of
Grievances in Support of Her Injunctive Request; Acts Too
Which are Protected Under the First Prong of Anti-SLAPP
Analysis.
Dawn asserts in her declaration the Scott has sued Dr. Gary Richard Rick, Ph.D.,
the 730 Custody Evaluator, for Fraud by Non-disclosure, Concealment, and Deceit` as
well as Marie Fisher, his former Professional Supervised Visitation Monitor and her
company Caring Hearts Agency, for Breach of Contract, Fraud, Professional
Negligence, Gross Negligence, Negligence, and Outrage` (JA 9:4 5), as well as
humorous references and/or scathing criticism allegedly posted by Scott about other
individuals involved in their dissolution proceeding (JA 61 67, 71), to somehow bolster
her position in attempting to renew the injunction against Scott. And Scott does agree
that such petitions for redress were made by him. But Scott`s petitioning in that regard
and communications made in relation to these individuals and those lawsuits are clearly
protected under the Anti-SLAPP statute (CCP Section 425.6 Subdivision (e)(1), [any
written or oral statement or writing made before a legislative, executive, or judicial
23
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proceeding, or any other official proceeding authorized by law;]) (emphasis added).
Thus, Dawn`s attempt to use such petitioning activity against Scott to renew the
injunction in the instant case most certainly subjects her Petition to an Anti-SLAPP
Special Motion to Strike.
3. Dawn's Petition Contains Requests for Prior Restraint Orders, in
Violation of the First Amendment, Which Facially Shows Her
Petition Must Pass the First Prong of the Anti-SLAPP Analysis on
a Prior Restraint Basis Alone.
In Paragraph 10 of Dawn`s DV-700 Request to Renew Restraining Order, she
asks Ior the IoIIowing reIieI: I request that he not be allowed to post disparaging
comments about me or post the details of our divorce proceedings. (JA 8:22-23)
(emphasis added).
What the Dawn was actually asking the Trial Court for is called PRIOR
RESTRAINT and is not allowed under the First Amendment to the U.S. Constitution
or under the Article I, Section 2 of the California Constitution. An injunction that
forbids a citizen from speaking in advance of the time the communication is to occur is
known as a prior restraint. (DVD Copy Control Assn. v. Burner (2003) 31 Ca1.4th
864, 886, [4 Cal.Rptr.3d 69, 75 P.3d 1] (DVD Copy)) (emphasis added).
Dawn`s request for prior restraint orders is most certainly a First Amendment
issue of public significance. Applicable case law specifically contains prohibitions
against restraining orders limiting free speech (In re Marriage of Candiotti (1995) 34
24
%22)..%05L4 12)0-0+ &3-)*
Cal.App.4th 718 [40 Cal.Rptr.2d 299]), as well as any other unconstitutional prior
restraint. (See Varian Medical Systems, Inc. v. Delfino (2003) 6 Cal.Rptr.3d 325).
The pIain Ianguage oI our state Constitution aIso prohibits prior restraints on
speech: Every person may IreeIy speak, write and pubIish his or her sentiments on aII
subjects, being responsible for the abuse of this right. A law may not restrain or abridge
Iiberty oI speech or press.` (Cal. Const., art. I, 2, subd. (a); and see Dailey v.
Superior Court (1896) 112 Cal. 94, 100). This provision is [a] protective provision more
definitive and inclusive than the First Amendment. (Wilson v. Superior Court (1975) 13
Cal.3d 652, 658).
The right to Iree speech is one oI the cornerstones oI our society, and is
protected under the First Amendment of the United States Constitution and under an
even broader provision oI the California Constitution. (Hurvitz v. Hoefflin (2000) 84
Cal.App.4th 1232, 1241 [101 Cal.Rptr.2d 558] (Hurvitz); see Cal. Const., art. I, 2,
subd. (a)) (emphasis added).
[P]ermanent injunctions - i.e., court orders that actually forbid speech activities -
are classic exampIes oI prior restraints. (Alexander v. U.S. (1993) 509 U.S. 544, 550
[113 S.Ct. 2766, 125 L.Ed.2d 441]; see also Metropolitan Opera Ass 'n, Inc. v. Local
100 (2d.Cir.2001) 239 F.3d 172, 176; Crosby v. Bradstreet Company (2d Cir. 1963) 312
F.2d 483, 485).
Prior restraints on speech are highly disfavored and presumptively
unconstitutional. (Hurvitz, supra, at p.p. 1241, 1244, |a prior restraint on speech may
25
%22)..%05L4 12)0-0+ &3-)*
not be constitutionally imposed . . . even if it is libelous and even if it invades a person's
privacy]; see also New York Times Company v. United States (1971) 403 U.S. 713, 714
[91 S.Ct. 2140, 29 L.Ed.2d 822]; Carroll v. President & Com'rs of Princess Anne (1968)
393 U.S. 175, 181, fn.5 [89 S.Ct. 347, 21 L.Ed.2d 325]; Curtis Publishing Co. v. Butts
(1967) 388 U.S. 130, 149 [87 S.Ct. 1975, 18 L.Ed.2d 1094]).
A prior restraint is the most serious and the least tolerable infringement on First
Amendment rights. (DVD Copy, supra, 31 Cal.4th at p. 886 [4 Cal.Rptr.3d 69, 75
P.3d 1]; Near v. Minnesota (1931) 283 U.S. 697, 713 [51 S.Ct. 625, 75 L.Ed. 135]).
Prior restraints are highly disfavored and presumptively violate the First
Amendment. (Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1225 [15
Cal.Rptr.3d 161]; Hurvitz v. Hoefflin, supra, 84 Cal.App.4th at p. 1241 [101
Cal.Rptr.2d 558]). This is true even when the speech is expected to be of the type that is
not constitutionally protected. (See Near v. Minnesota, supra, 283 U.S. at pp. 704-705,
[rejecting restraint on publication oI any periodicaI containing malicious, scandalous
and deIamatory matter].
Our Supreme Court has stated that the publication of information about a person,
without regard to truth, IaIsity, or deIamatory character oI that inIormation,` [is] not
subject to prior restraint.` (Wilson v. Superior Court, supra, 13 Cal. 3d at p. 659); and
see Rosicrucian Fellow v. Rosicrucian Etc. Ch. (1952) 39 Cal.2d 121; Gilbert v. National
Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1148) (emphasis added). The presumption
against prior restraints is heavier-and the degree of protection broader-than that against
26
%22)..%05L4 12)0-0+ &3-)*
limits on expression imposed by criminal penalties. Behind the distinction is a theory
deeply etched in our law: a free society prefers to punish the few who abuse rights of
speech after they break the law than to throttle them and all others beforehand. It is
always difficult to know in advance what an individual will say, and the line between
legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling
censorship are IormidabIe. (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S.
546, 558-559) (emphasis added).
The government bears a heavy burden to justiIy a prior restraint. (New York
Times Co. v. United States (1971) 403 U.S. 713, 714); Organization for a Better Austin v.
Keefe (1971) 402 U.S. 415, 419). The right to free speech and association is fundamental
and being IundamentaI, any governmentaI restraint is subject to the cIosest scrutiny.
(Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 44 [157 Cal.Rptr.
855, 599 P.2d 46]).
Dawn also asked that the Trial Court issue a another new order, constituting prior
restraint, to prevent Scott from posting details of their divorce proceedings; proceedings
which are already publically available (JA 205:2 206:8) (See In re Marriage of Burkle
(2006) 135 Cal.App.4th 1045, 1062, [37 Cal.Rptr.3d 805] [The contents of the file of a
divorce proceeding are historically and presumptiveIy` a matter oI pubIic record.]).
Such a request to the court is again a blatant attempt by Dawn to chill Scott`s First
Amendment right to speak freely about issues of public significance and public interest.
27
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As Scott has declared, he is a prolific writer and blogger who, because of his
horrible personal experiences related to his dissolution proceeding, writes and publishes,
primarily on the Internet, broad-ranging and broad-reaching criticism, and sometimes
praise, of most everyone (JA 150:21 152:4).
Case law related to this issue is deIinitive. Court records are public records,
available to the public in general, including news reporters, unless a specific exception
makes specific records nonpublic. No such specific exception applies in this case
because, as we have seen, there is no overriding public interest to justify restrictions on
the dissemination of confidential information. Moreover, as discussed above, the former
employees' declaration was part of the public record for one day, during which time it
was widely reported in the media, and it makes little sense to seal information after the
fact. The threatened invasion to Gilbert's right of privacy and the threatened harm to her
reputation are not the sort oI extraordinary circumstances` required to justify a prior
restraint order. The issues regarding the preliminary injunction [restraining disclosure of
certain information] and the sealing of the record are intertwined. (Gilbert v. National
Enquirer, Inc. (1996) 43 Cal. App. 4th 1135 [51 Cal. Rptr. 2d 91]).
Dawn also asks for prior restraint orders which would prohibit Scott from making
any disparaging Internet posts reIated or about her. (JA 8:22-23). She will find no legal
support Ior her request: No prior decisions support the claim that the interest of an
individual in being free from public criticism ... warrants use of the injunctive power of a
28
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court. (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 [91 S.Ct.
1575, 29 L.Ed.2d 1]).
In re Marriage of Candiotti, supra, 34 Cal. App. 4th 718, the appellate court
reversed an injunctive order banning the appellant in a family law custody and visitation
proceeding from disseminating independently acquired public information concerning her
ex-husband's new wife.
Given the Ioregoing, Dawn`s request Ior prior restraint orders, standing alone,
should allow Scott`s Anti-SLAPP Special Motion to Strike to succeed on the first prong
of the required analysis.
4. Though She Tried to Amend Her Petition, Both in Her Anti-
SLAPP Responsive Papers and in Open Court, Dawn is Not
Allowed to Do So Under Authoritative Case Law.
Dawn, in her Anti-SLAPP responsive decIaration, states Petitioner does not
seek to expand the scope of the 2008 orders that Respondent agreed to, or the 2009
order. She seeks to renew the 2009 orders which make no reference to the internet.
(JA 158:23-24), ignoring and/or recanting on the words in her Petition`s decIaration,
which state, I request that he not be allowed to post disparaging comments about me or
post the details of our divorce proceedings (JA 8:22-23) (emphasis added). Clearly, the
word post, in the context of her aIIeged evidence, refers to posting on various
Internet websites.
By Iar, the majority oI the evidence proIIered by Dawn in support oI her
Petition, evidence aIready ruIed inadmissibIe by the Trial Court (RT 5:5-12, 8:18-21),
29
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consists of Internet posts which she attributes to Scott. (JA 30 73). In fact, every
single page of her exhibits in support of her Petition, save copies of previous court orders
which she also included, are posts she purportedly found on the Internet under a
pseudonymous shared user name allegedly belonging to Scott. (JA 134:22 135:12).
There are 43 pages of such posts totaI in Dawn`s evidence against Scott. (JA 30 73).
Further, at the hearing on the Anti-SLAPP Special Motion to Strike, Dawn`s
counsel stated, There was some language in a declaration that, you know, could be
construed as asking for an expansion. It is our intention to request only a renewal.
(RT 22:13-14) (emphasis added).
Faced with the likelihood of losing an Anti-SLAPP motion, of course the
opposing party would like an opportunity to amend their Petition to strip away the
portions of the claims, relief, and evidence which subjects it to a Special Motion to
Strike. But in Simmons v Allstate Ins. Co. (2001) 92 CA4th 1068, the court rejected
such a request, recognizing that a SLAPP motion pierces the pleadings and requires
an evidentiary showing. Permitting the amendment oI a SLAPP petition would
totaIIy Irustrate the LegisIature`s objective oI providing a quick and inexpensive
method of unmasking and dismissing such suits. (Id., at pp. 1073-1074).
Allowing a SLAPP plaintiff leave to amend the complaint once the court
finds the prima facie showing has been met would completely undermine the statute
by providing the pleader a ready escape from section 425.16's quick dismissal
remedy. Instead of having to show a probability of success on the merits, the SLAPP
30
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plaintiff would be able to go back to the drawing board with a second opportunity to
disguise the vexatious nature of the suit through more artful pleading. This would
trigger a second round of pleadings, a fresh motion to strike, and inevitably anot her
request Ior Ieave to amend. (Id.)
In the case at bar, Dawn attempted to do exactly that disguise the vexatious
and vindictive nature of her Petition against Scott by striking that which subjected her
Petition to an Anti-SLAPP motion in the first instance.
D. Dawn Did Not Establish a Probability of Prevailing on Her Petition.
When the defendant satisfies the first step, the burden shifts to the plaintiff to
demonstrate there is a reasonably probability of prevailing on the merits at trial. (CCP
425.16, subd. (b)(1)). In this phase, the plaintiff must show both that the claim is legally
sufficient and there is admissible evidence that, if credited, would be sufficient to sustain
a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823,
disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5; Robertson v.
Rodriguez (1995) 36 Cal.App.4th 347, 358). In making this assessment, the court must
consider both the legal sufficiency of, and the evidentiary support for, the pleaded claims,
and must also examine whether there are any constitutional or nonconstitutional defenses
to the pleaded claims and, if so, whether there is evidence to negate those defenses.
(Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399). As
discussed below, Dawn failed to satisfy her burden in every regard.
31
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1. (7G@LC 2;D>D>A@ *7>?C 1@ 4;F;Bal Distinct Grounds, Including
Constitutional, Procedural, Substantive, and on Its Merits.
a. Petitioning for Renewal Under Family Code 6345.
Dawn filed her Petition, a Request to Renew Restraining Order, under Family
Code section 6345. FC 6345 (a) states, in IuII, In the discretion of the court, the
personal conduct, stay-away, and residence exclusion orders contained in a court order
issued after notice and a hearing under this article may have a duration of not more than
five years, subject to termination or modification by further order of the court either on
written stipulation filed with the court or on the motion of a party. These orders may be
renewed, upon the request of a party, either for five years or permanently, without a
showing of any further abuse since the issuance of the original order, subject to
termination or modification by further order of the court either on written stipulation
filed with the court or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the orders.
b. Family Code 6345 is, Facially and As-Applied to Scott,
Unconstitutional Under the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and
Article I, Section 24 of the California Constitution.
The Double Jeopardy Clause embodies three protections: It protects against a
second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same ofIense. (North Carolina v. Pearce (1969), 395 U. S. 711,
717).
32
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To show that FC 6345 is, either facially or as-applied, an unconstitutional
infringement of Double Jeopardy protections, Scott must show the following:
Facial Challenge: To assert a facial constitutional challenge, it is necessary to
show the statute is unconstitutionaI in aII or most cases. (Coffman Specialties, Inc. v.
Dept. of Transportation (2009), 176 Cal.App.4th 1135, 1145).
The clear language of FC 6345 is, on its face, constitutionally infirm: These
orders may be renewed . without a showing oI any Iurther abuse since the issuance oI
the original order. (FC 6345 (a)).
Assuming arguendo that the penalties imposed by a renewal of an injunction
under FC 6345 abrogates or significantly limits the enjoined person`s IundamentaI
rights, then such a renewal based on a showing of no new abuse or evidence since the
original injunction is tantamount to a form of a second prosecution, conviction, and
sentencing based on the same original legal elements. By way of analogy, it is similar
to an individual serving out his entire jail sentence to its end, and then, right before he is
to be released from jail, the victim comes back to ask the court to extend the jail sentence
for a longer period of time, based on no allegations of new crimes committed or any new
evidence tendered to support such claims.
Given of the aforementioned constitutional issues with FC 6345, it is facially
invalid in that it violates the prohibitions against Double Jeopardy by explicitly
authorizing multiple prosecutions and multiple penalties for the exact same elements of
the originally prosecuted acts. FC 6345, as written by the Legislature, cannot be saved.
33
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As-Applied Challenge: In contrast, an as-applied constitutional challenge
contempIates anaIysis oI the Iacts oI a particuIar case or cases to determine the
circumstances in which the statute or ordinance has been applied and to consider whether
in those particular circumstances the application deprived the individual to whom it was
appIied oI a protective right. (Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1419).
The facts relevant to Double Jeopardy in the case at bar include Dawn`s original
injunction against Scott being granted and issued for only three years, even though
Dawn`s originaI petition asked for a five-year penalty. (JA 4:22-23) . This shows that the
Trial Court in the original case in 2009 Iound the flippant remarks made by Scott on
the telephone (JA 230:19-25), and the lack of ANY evidence of physical violence by
Scott (JA 83:23 84:5), did not warrant the maximum penalty and punishment, which
was a possible five-year injunction, as Dawn had originally requested. (JA 15:Item 4).
Now, after Scott completely complied with the injunction for the entire three year
duration and suffered the associated restrictions on his fundamental rights under its
penalties, Dawn petitioned the Trial Court again, this time asking to renew that injunction
for another five years, based on no new admissible evidence or any allegations of new
illegal acts by Scott. Dawn`s renewaI request, iI granted, wouId constitute both muItipIe
prosecutions and multiple punishments for the original acts of which Scott was already
prosecuted and suffered severe penalties. As such, a renewal of the injunction under
these circumstances would subject Scott to unconstitutional Double Jeopardy.
34
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Family Code 6345 Penalties Imposed are in Effect Criminal or Even If the
Penalties are Civil, the Doctrines of Res Judicata and/or Collateral Estoppel Apply: If the
statutory scheme, by severely limiting or abrogating fundamental constitutional rights,
imposes such penalties, these penalties are transformed from what was intended as a civil
remedy into a criminal penalty and, thus, Double Jeopardy claims can be asserted.
(United States v. Ward (1980), 448 U.S. 242 (Ward)).
While it is true that Double Jeopardy normally attaches to what are thought only
as criminal punishments and penalties, the fact that the California Family Code statutes
are generally considered to be civil, not criminal, in nature, is not dispositive as to the
character of the penalties an individual suffers under those statutes.
The U.S. Supreme Court, articulating the approach used in Ward and its progeny,
stated, [I]f ... the intention was to enact a regulatory scheme that is civil and
nonpunitive, we must further examine whether the statutory scheme is so punitive either
in purpose or effect as to negate [the State's] intention` to deem it civiI.` (Smith v. Doe
(2003) 538 U.S. 84, 92 (Smith) (quoting Ward, supra, at p. 249)). Severe penalties have
the effect as to transfor[m] what was clearly intended as a civil remedy into a criminal
penaIty. (Hudson v. United States (1997), 522 U. S. 93, 100).
To determine whether a particular law or statutory scheme embodies attributes
typically associated with criminal penalties for purposes of Double Jeopardy, the two-
part test of Smith is applied. Under Smith, the Court must first determine whether the
LegisIature intended to impose punishment. II the intention oI the IegisIature was to
35
%22)..%05L4 12)0-0+ &3-)*
impose punishment, that ends the inquiry. (Smith, supra, at p. 92). However, if the
Court determines the Legislature intended to enact a regulatory scheme that is civil and
nonpunitive,` then the Court must determine whether the statutory scheme is so punitive
either in purpose or effect as to negate |the State's] intention` to deem it civil`. (Ibid.)
(emphasis added). To analyze the effects of the statute, the Court should consider
several factors set out in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144. (Smith,
supra, at p. 97). These Iactors, which are neither exhaustive nor dispositive, incIude
whether the provision creates an affirmative disability or restraint, imposes what has been
viewed traditionally as punishment, or is excessive with respect to the nonpunitive
purpose.
Injunctive restraining orders of the type originally issued against Scott, and of
which Dawn is still attempting to renew, now requested with even more restrictions, will
have the effect of stripping and/or otherwise limiting his following fundamental
constitutional rights:
Right to be an involved parent with his daughters (JA 16:Items 6,7,9) (Kristine
M. v. David P. (2006) 135 Cal.App.4th 783, 791, |establishment of the parent-child
relationship is the most fundamental right a child possesses to be equated in importance
with personal liberty and the most basic of constitutional rights and Likewise, parents
have a fundamental liberty interest in the custody, care, management and companionship
oI their chiIdren.]), and where children are involved, a protective order designed to
prohibit access to an abused spouse may have the collateral effect of limiting the
36
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restrained party's access to his (or her) children even when they are not potential targets
oI abuse. (Ritchie v. Konrad (2004) 10 Cal.Rptr.3d 387, 398 (Ritchie)) (emphasis
added);
Right to bear arms, as provided for in the Second Amendment, if Scott so
desires. (JA 16:Items 12, 13) (See Ritchie, supra, at p. 404, [[F]irearms restriction
becomes mandatory even when a trial court imposes a protective order based solely on
the restrained party placing annoying telephone calls or sending unwanted e-mails,
Ietters, or the Iike.]);
Right to associate as he chooses (JA 16:Items 6,7,9) (Hoffman Estates v.
Flipside, Hoffman Estates (1982) 455 U.S. 489, 499, |perhaps the most important factor
affecting the clarity that the Constitution demands of a law is whether it threatens to
inhibit the exercise of constitutionally protected rights. If, for example, the law interferes
with the right oI . association .];
Rights of free speech and expression would be substantively limited by the
terms of the requested injunction (JA 16:Item 6, JA 8:22-23) (See Nebraska Press Assn.
v. Stuart, (1976) 427 U. S. 539, 559, |[P]rior restraints on speech and publication are
the most serious and the least tolerable infringement on First Amendment rights]).
Without doubt, [a] protective order imposes costs and penalties on the
restrained party (Ritchie, supra, at p. 393). These penalties are harsh when actually
examining the negative eIIect such an injunctive order wouId continue to have on Scott`s
fundamental constitutional and civil rights.
37
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Taken as a whole, the various restraints Dawn is requesting that the Court again
place on Scott should be viewed as hidden custody (Cohen, Stanley, Visions of Social
Control: Crime, Punishment and Classification (1985), Blackwell Publishers Ltd. at p.
71), which is de facto punishment because of the fundamental nature of the rights Scott
stands to lose, for a second and longer period of time; this, iI Dawn`s renewaI Petition
were to be eventually granted.
Even if the Court finds that the penalties Scott has suffered, and will continue to
suffer under a renewal of the now expired injunction, are civil in nature, the U.S.
Supreme Court recognized that the civil law concept of Collateral Estoppel can be
asserted to prohibit the renewal request under the circumstances. (Ashe v. Swenson (1970)
397 U.S. 436, 448, Black, J., concurring, [The opinion of the Court in the case today
amply demonstrates that the doctrine of collateral estoppel is a basic and essential part of
the Constitution's prohibition against double jeopardy.]
Family Code 6345 Penalties Inflicted On Scott are Related to Either Multiple
Punishments or are Imposed as Part of Multiple Prosecutions: In both the multiple
punishment and multiple prosecution contexts, this Court has concluded that where the
two offenses for which the defendant is punished or tried cannot survive the same-
eIements` test, the double jeopardy bar applies. See, e. g., Brown v. Ohio, 432 U. S. 161,
168-169 (1977); Blockburger v. United States, 284 U. S. 299, 304 (1932) (multiple
punishment); Gavieres v. United States, 220 U. S. 338, 342 (1911) (successive
prosecutions). The same elements` test, sometimes reIerred to as the Blockburger`
38
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test, inquires whether each offense contains an element not contained in the other; if not,
they are the same oIIence` and double jeopardy bars additional punishment and
successive prosecution. (United States v. Dixon (1993), 509 U.S. 688, 696).
c. A Family Code 6345 Injunction is Legally Infirm, on Its Face
and/or As Applied to Scott, Under the Doctrines of Res Judicata
and/or Collateral Estoppel.
The doctrine |oI res judicata] has a doubIe aspect, a prior judgment is a bar in a
new action on the same cause of action, and in a new action on a different cause of action
the former judgment is a collateral estoppel, being conclusive on issues actually litigated
in the Iormer action. (Lewis v. Superior Court (1978) 77 Cal.App.3d 844, 851).
As [the United States Supreme Court] and other courts have often recognized,
res judicata and collateral estoppel relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication. (Allen v. McCurry, supra, 449 U.S. at p. 94)
(emphasis added).
The first aspect of the doctrine is often referred to as claim preclusion or res
judicata while the second aspect of the doctrine is referred to as issue preclusion or
collateral estoppel. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, fn. 7).
Collateral estoppel precludes relitigation of issues argued and decided in prior
proceedings. [Citation.] Traditionally, we have applied the doctrine only if several
threshold requirements are fulfilled. First, the issue sought to be precluded from
relitigation must be identical to that decided in a former proceeding. Second, this issue
39
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must have been actually litigated in the former proceeding. Third, it must have been
necessarily decided in the former proceeding. Fourth, the decision in the former
proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former proceeding.
|Citations.] (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted).
Once the threshold requirements are met, courts consider whether application of
issue precIusion wiII Iurther the pubIic poIicies oI preservation oI the integrity oI the
judicial system, promotion of judicial economy, and protection of litigants from
harassment by vexatious Iitigation. (Id. at p. 343).
For the case at bar and generally contained within a FC 6345 renewal petition,
all the requirements for collateral estoppel are met. First, the issues are the same as they
were when the original injunction was granted. Second, these same issues were actually
litigated in the former proceeding. Third, these issues were necessarily decided in the
former hearing. Fourth, the decision in the former proceeding was final and on its merits.
Finally, Dawn, the party against whom Scott seeks preclusion, is the same party as in the
former proceeding.
And in fact, the statute itself seems to facially promote the violation of res
judicata by allowing injunctions to be renewed based on no new evidence since the
original judgment. (FC 6345 (a), |These orders may be renewed , . upon the request
of a party, either for five years or permanently, without a showing of any further abuse
since the issuance of the original order]).
40
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A primary purpose of these common law preclusion doctrines is to encourage
reliance on adjudication. In the prior adjudication oI Dawn`s originaI injunctive petition,
she requested a five-year term but Scott contested the request; the judge reduced the
duration of the injunctive penalties him only three years. (JA 6:22-27). It is demonstrably
inequitable to now saddle Scott with a renewed injunction for another five years, with
penalties that would then total eight years; this, based on the exact same elements of the
original proceeding, as there has been no new evidence of abuse presented by Dawn.
d. %C 7 /7DD;B A< .7G$ (7G@LC 2;D>D>A@ /ECD %?CA *7>? &;87EC; 4=;
is Attempting to Renew an Injunction that is now EXPIRED.
The Trial Court specifically ruled that the prior restraining order against Scott
expired on May 19
th
, 2012. (JA 117). A renewal of an expired injunction must fail as a
matter of law, based on, if nothing else, Due Process considerations under the Fifth and
Fourteenth Amendments to the U.S. Constitution or Article I, Sections 7 and 15 of the
California Constitution. (JA 136:25 137:18, 211:27 213:6).
Dawn was lackadaisical about pursuing the renewal process in a timely manner
and, thus, risked the prior order expiring, which it did. After the expiration of the prior
restraining order, only a request for a NEW restraining order, based on new evidence,
could legally accomplish Dawn`s injunctive goals against Scott while respecting his due
process rights. (JA 212:22 213:2).
Though no published case has directly addressed this exact issue, basic logic and
that of equitable principles should be applied. Once an injunction expires, it is just that,
41
%22)..%05L4 12)0-0+ &3-)*
EXPIRED. Period. After which point there is NO restraining order in existence to
renew. Thus, any hearing on a request to renew an EXPIRED restraining order is moot.
e. %C 7 /7DD;B A< .7G$ (7G@LC 2;D>D>A@ for RENEWAL Must Too
Fail Because She is Attempting to CHANGE Material Terms of
the Prior Order.
In Paragraph 6 of Dawn`s DV-700 Request to Renew Restraining Order, she asks
the Court Ior the IoIIowing reIieI: I am asking that the May 18, 2009 order be extended
an additional five years in that I continue to be apprehensive for my well being and safety
and for the well being and saIety oI our chiIdren. (JA 7:8-10). Dawn is asking that
Scott`s daughters now be included in the injunction when they were specifically excluded
by the Trial Court judge in the original May 18
th
, 2009 restraining order. (JA 15:Item 2
[Explicit removal of children from the order]).
Further, in Paragraph 10 oI Dawn`s DV-700, she asks Ior the IoIIowing reIieI: I
request that he not be allowed to post disparaging comments about me or post the details
oI our divorce proceedings. (JA 8:22-23).
Appellant highlights these requests from Dawn to show that she was not asking
for just the renewal of the now EXPIRED injunction, as the prior order: 1) specifically
EXCLUDED the minor children and that a renewal should somehow comprehend the
weII being and safety of our children to include them in the injunction; and 2) further
restrict Scott`s First Amendment rights by prohibiting him from posting constitutionally
protected speech and expression on the Internet. (JA 8:22-23).
42
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Any change to the terms of a prior injunction must be considered a request for a
NEW restraining order and would need to be treated as such by the Court. As a matter of
law, the procedures and evidentiary standards required for issuance of a new or initial
restraining order are the only ones that could possibly apply. However, Dawn`s DV-700
and supporting evidence cannot even be considered in the case at bar, since a DV-700
requesting a renewal of a restraining order is not the same as DV-100 request for a new
restraining order, nor can it be legally converted to one.
f. Even 4DB>8D?H A@ -DC /;B>DC$ (7G@LC 2;D>D>A@ Cannot Succeed, as
There is Neither Evidentiary Support Nor Persuasive Arguments
Presented by Her.
On the merits oI Dawn`s Petition aIone, she must again fail on the burden placed
on her by the second prong of the Anti-SLAPP test. Ritchie v. Konrad (2004) 10
Cal.Rptr.3d 387, [115 Cal.App.4th 1275] (Ritchie) is the authoritative case law that
fleshes out FC 6345. Ritchie, supra, at p. 392, opines, |I]f the restrained party does
contest the renewal, as Konrad did here, we conclude the protected party is not entitled to
a renewal merely because she desires one. Section 6345 does not provide that the trial
court shall automatically renew the existing protective order if the protected party
requests. By its terms, 6345 only states the trial court may do so in the proper exercise of
its discretion. In this court`s view, that exercise oI discretion requires an inquiry beyond
whether the protected party requested a renewal and entertains a subjective desire the
protective order continue. (emphasis added).
43
%22)..%05L4 12)0-0+ &3-)*
|T]his does not suggest the trial court need make no finding beyond the
petitioning party`s subjective desire to have the existing protective order extended in
this case for a lifetime. As Konrad points out, a protective order imposes costs and
penalties on the restrained party the stigma (which may have practical consequences
for employment and elsewhere in life) (Id. at p. 393) (emphasis added).
The fact a judge found enough grounds to grant a protective order three years
earlier does not necessarily mean sufficient grounds remain to renew that order for
another three years or as in this instance, permanently merely because the protected
party IiIes a request and expresses her subjective desire the court issue such an
extension. (Ibid.)
The vast majority oI Dawn`s evidence was ruIed inadmissibIe. To wit: MR.
KANDEL: Objection. THE COURT: Just a moment. What's the objection? MR.
KANDEL: My objection is hearsay; foundation; authentication. Those are not attributed -
- THE COURT: Okay. Sir, you've stated your objections. Candidly, Mr. Moore, I think
those are valid objections. (RT 5:5-12) (emphasis added). Further, Scott, at the same
hearing, reiterated his objections and the court reaffirmed its previously ruling regarding
those objections: MR. KANDEL: Objection. Objection. THE COURT: Mr. Moore, he's
already objected from hearsay and lack of foundation grounds. I've said, I think those are
appropriate. (RT 8:18-21) (emphasis added).
In addition, Scott, in his FC 6345 opposition papers (JA 74 115), Anti-SLAPP
moving papers, (JA 118 153), and Anti-SLAPP reply pleadings (JA 194 368),
44
%22)..%05L4 12)0-0+ &3-)*
compIeteIy rebutted aII oI Dawn`s aIIegations, arguments, and overcame aII oI her
evidence.
Dawn has no reIevant evidence to support the requests in her Petition;
furthermore, her Petition cannot succeed on its merits, given the costs and penalties that
such an injunction would impose on Scott. These injunctive penalties include: 1.) not
being able to attend many important occasions and everyday activities in the company
and companionship of his minor daughters including any of their sporting activities (JA
221:23-26); 2.) not being allowed to have involvement in their schooling in any
meaningful manner as Dawn is frequently at school activities with their daughters (JA
221:26:27); 3.) attending important life events such as their bat mitzvahs (JA 222:1); 4.)
not being allowed to visit his children at their home, and enjoying any of their beloved
pets with them (JA 222:2-3); 5.) calling them on the phone, or otherwise initiating any
communications with them (JA 222:3-4); 6.) seeking meaningful employment due to the
stigma imposed by and discrimination against individuals with active Domestic Violence
Restraining Orders (JA 222:21-25); 7.) being subject to additional scrutiny, hassle, and
delay involving travel that requires re-entering the United States or crossing the border
into certain other countries that frown on visitors with active restraining orders (JA
223:3-7); 8.) being precluded by Dawn, under the authority of the restraining order, from
attending funerals of mutual friends (JA 223:9-12); 9.) counting against him as a factor in
almost every other major aspects of the dissolution proceeding, including child custody
and visitation, and spousal support (JA 223:14-17); 10.) restraining orders are now
45
%22)..%05L4 12)0-0+ &3-)*
published on various state and national databases. Government entities and various other
interested parties have access to these databases, and the trend is toward increased access.
Access to this information creates the potential for additional and substantial damage to
Scott`s reputation (JA 223:22-27); 11.) constant fear and anxiety of being subject to
criminal penalties related to a restraining order, penalties which could result in a total loss
of all his constitutional and civil rights, i.e., incarceration, and other freedoms, upon
conviction for any deviation outside of the numerous vague, overbroad, complicated,
confusing, and draconian limits imposed by such injunctive orders (JA 224:4-10); 12.)
restrictions of his constitutional right to Freedom of Speech (JA 224:12); 13.) restrictions
of his constitutional right to Freedom of Association (JA 224:14-15); and 14.) restrictions
of his constitutional right to Freedom of Movement (JA 224:17-18).
Dawn herseII decIares onIy that she is apprehensive about her weII being (JA
7:9). She does not even decIare the Iear oI Iuture abuse, as required under the Ritchie
analysis, much less that any such fear was genuine and reasonabIe. Instead the court
should have considered evidence tendered by both sides and determined whether
Ritchie's expressed fear of future abuse was genuine and also reasonable. (Ritchie,
supra, at p. 391) (emphasis added).
In fact, Scott provides overwhelming evidence and support to the proposition that
even if Dawn has expressed fear of future abuse, that expression is neither genuine nor
reasonable. (JA 79:4 89:22, 137:26 138:10, 220:16 221:3).
46
%22)..%05L4 12)0-0+ &3-)*
For the reasons stated in the paragraphs above, on the merits alone, and forgetting
for the moment all the points of law she also fails on, Dawn should not prevail on her
Petition.
g. (7G@LC Requested Injunctive Relief is Overly Broad and
Unconstitutional, Given the Alleged Circumstances of the Instant
Case.
Dawn is asking the Court to issue an injunction against Scott to prohibiting the
following speech and requiring and/or prohibiting the following acts: 1.) harass; 2.)
intimidate; 3.) molest; 4.) attack; 5.) strike; 6.) stalk; 7.) threaten; 8.) assault (sexually or
otherwise); 9.) hit; 10.) abuse; 11.) destroy personal property of; 12.) disturb the peace of;
13.) contact Dawn, either directly or indirectly, in any way, including, but not limited to,
in person, by telephone, in writing, by public or private mail, by interoffice mail, by e-
mail, by text message, by fax, or by other electronic means; 14.) take any action, directly
or through others, to get the addresses or locations of any protected persons or of their
family members, caretakers, or guardians; 15.) stay-away 100 yards Irom Dawn`s person;
16.) stay-away 100 yards from Dawn`s vehicIe; 17.) stay-away 100 yards from Dawn`s
(and Scott`s daughters`) home; 18.) stay-away 100 yards from the school and the child
care facilities of his daughters; 19.) not write and post any disparaging comments about
Dawn on the Internet; and 20.) not write and post any details of our divorce proceeding
on the Internet. (16:Items 6,7, 8:22-23).
Assuming arguendo that Dawn`s had any reasons to renew the injunctive order to
begin with (of which there weren`t), and aIso assuming arguendo that any such
47
%22)..%05L4 12)0-0+ &3-)*
prohibited speech and/or acts weren`t, on multiple grounds, constitutionally protected
(which they are), the terms of the injunction requested by Dawn are overly broad, vague,
lack adequate knowledge requirements and, thus, are unconstitutional. Furthermore, in
the instant case, the requested injunction is not specific enough to be enforceable, as
Dawn would be required to inform Scott as to her intended physical location at all times
so that he wouId not vioIate the stay-away provisions oI the requested restraining order.
A court-ordered condition must be suIIicientIy precise Ior the [enjoined party] to
know what is required of him, and for the court to determine whether the condition has
been violated, if it is to withstand a constitutional challenge on the ground of vagueness.
(In re Sheena K. (2007), 40 Cal.4th 875, 882). A condition that imposes Iimitations on
a person`s constitutionaI rights must cIoseIy taiIor those limitations to the purpose of the
condition to avoid being invaIidated as constitutionaIIy overbroad. (Ibid. at p. 890).
|C]onditions that impIicate constitutionaI rights must be narrowIy drawn` and
the knowledge requirement in these circumstances shouId not be IeIt to impIication.`
(People v. Garcia (1993), 19 Cal.App.4th 97, 102).
The original DV-130 Domestic Violence Restraining Order, filed by Dawn in
2009, has checked-off and identifies 100 yards as an all-purpose avoidance distance for
Scott as to her person, vehicle, and home. (JA 16:Item 7). This is not only unreasonable
but patently unconstitutional, as applied to circumstances presented in the case at bar.
Scott may need to travel on the street which Dawn is also travelling, or is otherwise
situated; Scott may need to go to Dawn`s house to pick up his daughters; and Scott may
48
%22)..%05L4 12)0-0+ &3-)*
already be situated at a location, such as a play or symphony, with his children or friends,
at which time Dawn decides to come herself, to give just a few examples.
Dawn`s requested orders are overly broad, lack a knowledge requirement, are
unconstitutional, and completely and totally unwarranted.
D. 'A@DB7BH DA (7G@LC %CC;BD>A@$ ScottLC CCP Section 425.16 Anti-SLAPP
Special Motion to Strike is NOT Frivolous.
Dawn asserted in her opposition papers that Scott`s Anti-SLAPP motion was
IrivoIous and misguided. (JA 164:18, 157:7). She also argued the same in open
court. (RT 30:15-18, [MR. MOORE (Dawn`s CounseI): Your Honor, which reminds me
of the request for attorney fees based on the denial of the ]. The Trial Court thusly
ruIed on the matter, I cannot make a finding that the motion was frivolous. (RT 30:15-
18) (emphasis added). Dawn`s counseI was persistent: MR. MOORE: At this time --
would the Court reserve it? The TriaI Court ruIed again, I have to make the finding at
this point in time that it was a frivolous motion. I can't make that finding. (RT 30:19-
23) (emphasis added).
Though Dawn`s characterization of an Anti-SLAPP motion as IrivoIous in
many matters related to California Family Law may be true, in the instant case, it
certainly is not. As Scott argued in his Anti-SLAPP reply, onIy thing misguided has
been Dawn`s abuse of the court system during their dissolution, while the most
IrivoIous aspect oI this matter is Dawn`s Petition itseII for the injunction request at bar.
(JA 198:19 199:5).
49
%22)..%05L4 12)0-0+ &3-)*
Scott stated as IoIIows: Moving the legal ball forward and going in for the big
win in the pursuit of justice and in defense of the First Amendment of the U.S.
Constitution can be considered neither misguided` nor IrivoIous`, especially when
applied to an area of case law as ever-changing and malleable as that which surrounds the
Anti-SLAPP statute, coupled with California Family Law, which effectively (or some
might say ineffectively) govern the adjustments to the most fundamental of human
relationships. (JA 199:6-12).
Nor is this appeal Irom the TriaI Court`s deniaI oI Scott`s Anti-SLAPP motion
frivolous or misguided. Given the constitutional issues argued, the legal technicalities
probed, and the number oI issues oI Iirst impression tabIed, Scott`s pursuit oI redress
should be applauded, not vilified. NOVEL + CREATIVE + INTELLIGENT
legal arguments do not equal a misguided and IrivoIous Anti-SLAPP Special
Motion to Strike. If nothing else, Scott`s Anti-SLAPP motion is a legal and legitimate
attempt to defend the rights conferred to him by the First Amendment in a small but
meaningful way; to bring the U.S. Constitution back into what many, unfortunately,
mistake for a Constitution-Free Zone: Family Law and Divorce Court.
VII. 4'155L4 45%564 %4 % J231 2)3K .-5-+%05 4,16.( &)
GIVEN DUE AND PROPER CONSIDERATION.
It is rare for a Court of Appeal to get a peek into the world of domestic violence
proceedings, because these protective orders are nearly never appealed. We know
something about these proceedings, not so much from the appellate brief and oral
50
%22)..%05L4 12)0-0+ &3-)*
arguments, but because of judicial administration studies and innovations over the past
few years. We know the litigants, both plaintiffs and defendants, are unrepresented by
counsel in the vast majority of cases as was true here. We also know this fact influences
how these hearings should be conducted with the judge necessarily expected to play a
far more active role in developing the facts, before then making the decision whether or
not to issue the requested permanent protective order. (Ross v. Figueroa (2006) 139
Cal.App.4th 856 [43 Cal. Rptr. 3d 289, 291] (Ross))
In such a hearing, the judge cannot rely on the pro per litigants to know each of
the procedural steps, to raise objections, to ask all the relevant questions of witnesses,
and to otherwise protect their due process rights. (Ibid.). (emphasis added)
And yes, although Scott feels he has done the best he can on this appeal as
presented, he is not a member of the bar; but instead only a lowly self-represented
litigant, struggling to keep his daughters in the process of a less than amicable divorce
proceeding. Thus, he is certain he has made some mistakes in the structure, layout,
arguments, and other aspects his pleadings. Therefore, he asks for this Court`s
indulgence and understanding in such matters to ensure that he is not, once again,
raiIroaded by the PIaintiII and her counsel, who have proved very adept in the past at
exploiting weaknesses and the nuances inherent in the Family Code and Family Court
system. And always to the detriment of Scott and his children`s reIationship . . .
51
%22)..%05L4 12)0-0+ &3-)*
VIII. CONCLUSIONARY PRAYERS.
Respondent Dawn Kandel has abused the FC section 6345 injunction procedure
to retaliate against appellant Scott Kandel for exercising his First Amendment rights by
posting on the Internet and petitioning Ior redress oI grievances. Dawn`s Petition is a
meritless SLAPP. Scott`s speech and petitioning activities are protected by the Anti-
SLAPP law and his First Amendment rights; the rights oI which deIeat Dawn`s FC
section 6345 cIaim. Scott showed that Dawn`s Petition IaiIs on muItipIe points oI Iaw
and on the merits, as Dawn did not present any admissible evidence to meet her burden.
Dawn may not deprive Scott of the protection of CCP section 425.16 by masquerading
her attack upon Scott`s First Amendment rights in the guise of a petition against
Domestic Violence.
Based upon the foregoing arguments, authorities, the referenced pleadings and
exhibits, the court file, the oral arguments presented at the referenced hearings, and on
any other matters the Court deems appropriate, the Defendant respectfully requests that
this Court REVERSE the TriaI`s Court`s deniaI oI his Anti-SLAPP Special Motion to
Strike and now GRANT his request to dismiss Dawn`s Petition with prejudice. This
Court should also direct the Trial Court to award Scott his reasonable fees and costs,
including his fees and costs on appeal. (CCP 425.16, subd. (c); Church of Scientology
v. Wollersheim, supra, 42 Cal.App.4th at pp. 659-660).
///
52 52
APPELLANT`S OPENING BRIEF
Dated this 27 27
th th
day of February, 2013 Respectfully submitted,
SCOTT C. KANDEL
By: Scott Kandel el
In Propria Persona
For Appellant/Defendant.
53 53
APPELLANT`S OPENING BRIEF
WORD COUNT CERTIFICATION
I hereby certify that the text of this brief consists of 13,46 469 words as counted by
%82A>B>5COB Word 2007 word processing program used to generate the brief. (Cal. Rules
of Court, Rule 14(c)(1)).
Dated this 27 27
th th
day of February, 2013 Respectfully submitted,
SCOTT C. KANDEL
By: Scott Kandel
In Propria Persona
For Appellant/Defendant.
.
Mail. I mailed a copy of the document identified above as follows:
PROOF OF SERVICE
(Court of Appeal)
Form Approved for Optional Use
Judicial Council of California
APP-009 [New January 1, 2009]
2. My residence business address is (specify):
I mailed or personally delivered a copy of the following document as indicated below (fill in the name of the document you mailed or
delivered and complete either a or b):
I enclosed a copy of the document identified above in an envelope or envelopes and
deposited the sealed envelope(s) with the U.S. Postal Service, with the postage fully prepaid.
1. At the time of service I was at least 18 years of age and not a party to this legal action.
placed the envelope(s) for collection and mailing on the date and at the place shown in items below,
following our ordinary business practices. I am readily familiar with this business's practice of collecting
and processing correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a
sealed envelope(s) with postage fully prepaid.
The envelope was or envelopes were addressed as follows:
Person served:
Address:
APP-009
Notice: This form may be used to provide proof that a document has been
served in a proceeding in the Court of Appeal. Please read Information
Sheet for Proof of Service (Court of Appeal) (form APP-009-INFO) before
completing this form.
PROOF OF SERVICE (Court of Appeal)
Mail Personal Service
FOR COURT USE ONLY
Case Name:
Court of Appeal Case Number:
Superior Court Case Number:
Additional persons served are listed on the attached page (write APP-009, Item 3a at the top of the page).
I am a resident of or employed in the county where the mailing occurred. The document was mailed from
(city and state):
3.
(b)
(4)
a.
(1)
www.courtinfo.ca.gov
Page 1 of 2
(b)
(a)
(3)
Name:
(i)
(ii)
Person served:
Address:
Name:
(i)
(ii)
(c) Person served:
Address:
Name: (i)
(ii)
Date mailed: (2)
(a)
4
KandeI v. KandeI
cSUSUZZ
teQTXUXV
4
447 S. Ventu Park Road, Newbury Park, CA 91320
bqqfmmbouHt pqfojoh csjfg
kpjou bqqfoejy wpm j G jj
4
4
February 27th, 2013
PauI F. Moore II
Law OIIices oI PauI F. Moore II
2029 Century Park East, Suite 900, Los AngeIes, CA 90067
Ventura County Superior Court
800 South Victoria Avenue, Ventura, CA 93009
CaIiIornia Supreme Court/Court oI AppeaI, Second District, Division Six
Court Place 200 East Santa Clara Street, Ventura, CA 93001
*BY ELECTRONIC FILING*
Newbury Park, CA 91320

B242499 - Anti-SLAPP Appellant's Opening Brief (AOB) - Scott C Kandel - Final

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