Opinion
D057681
09-14-2011
KIRK SANFILIPPO, Plaintiff and Respondent, v. GERALD PATYTEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2008-00090486-CU-HR-CTL)
APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Reversed with directions.
In October 2008, plaintiff and respondent Kirk Sanfilippo, an employee of the San Diego Port District (the District), who serves as its Harbor Police /chief (Respondent), petitioned for and obtained an injunctive order after hearing against harassment by appellant Gerald Patyten (Appellant), then a resident of the San Diego Bay port area. (Code Civ. Proc., § 527.6; all further statutory references are to the Code of Civil Procedure unless noted.) The October 9, 2008 order (the original order) prohibited Appellant from leaving telephone messages at Respondent's work phone number, or coming within 100 yards of Respondent, his workplace or job at the District, his home or vehicles, for a period of three years. The order also prohibited Appellant from keeping or obtaining any firearms.
In April 2010, Appellant brought a motion to dissolve or modify the original order, and/or for leave to file a delayed special motion to strike the petition under anti-SLAPP provisions. (§ 425.16, subd. (f) [motion to be filed within 60 days of service of a complaint, unless court discretionarily allows otherwise].) The trial court denied Appellant's motion.
Although Appellant did not appeal the 2008 anti-harassment order, he now appeals the order declining to modify or dissolve it, asserting that the trial court should have recognized that the original order, on its face, is unconstitutionally overbroad because it impinges on his free speech rights to make protected citizen communications to authorities, such as Respondent or others at his workplace, to report suspected wrongdoing or criminal activity. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg); Evans v. Evans (2008) 162 Cal.App.4th 1157, 1171-1173.)Alternatively, he contends the trial court abused its discretion by keeping the original order in force, because (1) it was not supported by the evidence, (2) it was obtained in a procedurally defective manner (inadequate service), and/or (3) the hearing procedures on the motion to modify or dissolve, allowing testimony from Respondent without proper notice or justification, were improper. (Cal. Rules of Court, rule 3.1306.) He also argues he was entitled to an express ruling on his request to file an anti-SLAPP motion.
"Section 47 [of the Civil Code] establishes a privilege that bars liability in tort for the making of certain statements." (Hagberg, supra, 32 Cal.4th 350, 360.) There, the court stated that under Civil Code section 47, subdivision (b), a "pure communication" to a peace officer, requesting an investigation, would be protected by the statutory privilege, which is absolute. (Hagberg, supra, at p. 374, citing Kimmel v. Goland (1990) 51 Cal.3d 202, 211.)
All further rule references are to the California Rules of Court. Rule 3.1306(a) places restrictions on oral testimony in this context. Normally, "[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown." Subdivision (b) specifies the requirements for presenting such oral testimony.
As will be explained, the record on appeal is scant, not including any reporter's transcript, and it does not allow us to conduct any meaningful examination of the trial court's exercise of discretion in denying the request to dissolve or modify the original order. However, enough material in the record has been presented for review, on a de novo basis, of the denial of modification or dissolution regarding the claims of facial validity of the original order, as overbroad and interfering with potentially protected or privileged statements to law enforcement authorities. We reverse the ruling on the current motion and return the matter for further proceedings regarding modification and/or dissolution, consistent with the views in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Order
The documents contained in the clerk's transcript show that in August 2008, Appellant and other live-aboard residents of Anchorage A-8 (the Anchorage), under the jurisdiction of the District, were engaged in severe conflicts with the District about the implementation of its 2006 plan to close the Anchorage to residents. The Anchorage was the only free long-term anchorage in the area, attracting persons of low income to anchor their vessels there. At the relevant times, Respondent was the chief of the Harbor Police and was assisting in implementing the District's program to close the Anchorage.
In August 2008, Appellant was upset about the District's plans to close the Anchorage. At three different times during the afternoon and evening of August 16, Appellant left accusatory and complaining messages on Respondent's District office telephone. He gave his name and residence at the Anchorage, and told Respondent that Respondent was fostering the activity of his police officers to harm residents of the Anchorage, with the intent to cause bodily harm or attempted murder. He told Respondent he wanted him to step down, because Respondent was not worthy of being a police officer, was garbage, and was allowing other police officers to hurt people under his badge. Appellant told Respondent it was not a joke, Respondent had the right to remain silent and anything he said could and would be used against him, Respondent was in serious trouble, and Appellant was going to make sure Respondent was going to jail.
Ten days later, on August 26, Respondent, represented by counsel for the District, filed a notice of hearing seeking a temporary restraining order (TRO) against harassment by Appellant. He filed a supporting petition with attachments, identifying his occupation and work place at the District. The petition included transcripts of the above three August 16 telephone calls from Appellant, to describe the alleged harassment. The petition also included transcripts of 10 telephone calls of similar content to another District official, Deputy Port Attorney Ellen Gross Miles (Miles), and to the District message center, between August 16 to August 18. In all of those calls, Appellant told Miles to have Respondent keep his mentally ill murdering police officers away from the Anchorage, and that Appellant was going to the FBI to complain about seven alleged murders by police.
Respondent reported that during the same August time period, Appellant left one message for another Harbor police officer, Bishop, telling him he was a good guy but that Respondent was corrupt, and also telling Officer Bishop that "you criminals" (police officers) should "stay the hell away from my boat. Don't come near me. Do not, I repeat, do not come near my vessel. Am I perfectly clear. Do not come near my vessel." Further, Appellant called the U.S. Immigration and Customs Office, requesting that they report Respondent and the District for corruption, which he said was shown by damage inflicted upon Appellant's boat and legs.
The original TRO was reissued twice upon requests for the attorney for Respondent, due to his calendar conflicts and because the proof of service, served with "shout service" and mailing on September 19, 2008, had the wrong first name for Appellant on it (Gary, not Gerald). Interestingly, the record reflects that the requests for hearings and continuances were filed by the attorney for Respondent, but the proofs of service are labeled "in propria persona."
In any case, Respondent's next proof of service was filed September 23, 2008, and stated that Appellant was "personally served" on September 19, 2008, at an address that was apparently a mailbox establishment in National City, with documents including the petition, the reissuance of the TRO, a form answer, and a proof of service by mail. That proof of service was filled out by Sergeant Palmer on behalf of the person who served the papers, P. Masis of the San Diego County Sheriff's civil office.
The continued hearing went forward on October 9, 2008, and the minute order shows that the court heard testimony from Respondent. Appellant was not present. The court issued the restraining order, using a court form checking boxes for stay-away orders and nonharassment orders, and stating that the order would be in effect for three years (to expire Oct. 9, 2011). The court set an order to appear the next month for failure to surrender firearms, based upon the service made September 19, 2008, but that hearing was later taken off calendar for lack of any proof of service.
The order refers to stalking allegations as justifying a waiver of fees for service of the order by law enforcement. However, the petition itself does not contain any significant allegations of stalking-type conduct, but rather, a variety of belligerent telephone calls.
On December 16, 2008, Respondent filed a proof of service of the restraining order, and the order to appear for failure to surrender firearms, showing that service had been made by Deputy Pat Clark of the Los Angeles County Sheriff's Department on October 13, 2008 in Marina Del Rey. Clark stated that he personally gave copies of the documents to Appellant. Appellant had three shotguns or rifles that were confiscated as evidence at the time. No appeal was taken from the original order.
In his moving papers and in the briefs, appellant states that a bench warrant was issued in January 2009, after he allegedly violated the restraining order by leaving two additional messages on Respondent's office telephone (secretary). In November 2009, he was apparently stopped for intoxication, charged with two misdemeanors for those violations, and jailed. The record is unclear about the status of those charges.
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B. Current Motion Proceedings and Ruling
On March 8, 2010, counsel for Appellant filed his motion to dissolve or modify the restraining order, and/or for leave to file a special motion to strike. He obtained a fee waiver and in support, submitted his own declaration, stating he had not received any "personal service" at the address on the proof of service, which was a mailbox business where he formerly rented a box, but he had quit paying on it and given it up months before, so he claimed he was never served there with the original moving papers. He stated he had left San Diego on September 20, 2008 and had not returned at any time, except for stops of less than one day in June and December 2009.
In his points and authorities, Appellant argued that the order was unconstitutional as a prior restraint of protected political speech about a public official, and that the order was overbroad. He sought to challenge the order through a motion to strike under the anti-SLAPP provisions, and to have his property (guns) returned without charge.
Respondent filed opposition to all the arguments, contending that the original order had been adequately supported by the evidence of Appellant's numerous telephone calls to Respondent, to Deputy Port Attorney Miles, to Officer Bishop, and to the federal immigration and customs department, all within a short period in August 2008. He argued that none of those calls were privileged "reports" to public officials, but instead were merely harassment, over a four-day period of time, which was long enough to be a "course of conduct" under section 527.6. Respondent argued that the messages amounted to "fighting words" that seriously alarmed, annoyed, and harassed him for no legitimate purpose.
To further support his argument that the restraining order should remain in effect, Respondent supplied a declaration from San Diego County Sheriff's Deputy Pat Masis, clarifying the service problems he had encountered in serving the original order. Masis stated that on September 19, 2008, he was on duty serving process and was taken out to Appellant's boat by a Harbor Police boat, where he saw Appellant there, and shouted out to him that he had a service for him. When Appellant refused service, Deputy Masis states he effected verbal service on Appellant "by telling him through a megaphone of each document I had for him," and then having them mailed to the last known address (mailbox establishment). He had consulted field notes made by another deputy to refresh his recollection, and attached the notes and the proof of service to his declaration.
Respondent therefore argued, in opposition to the current motion, that service was properly accomplished in September 2008, because the papers could not legitimately be dropped into the sea between the two boats, and the later mailing was appropriate because Appellant had not updated his mailbox address with the District, which was a term and condition of his permit to anchor at the Anchorage.
Appellant's reply to the opposition argued that his telephone messages were absolutely privileged and his criticisms of Respondent, a public official, served a legitimate purpose. He argued that service of the original order had been defective and could not be explained away now, and the deputy sheriff's new declaration did not show sufficient service on September 19 or otherwise, before Appellant left San Diego in 2008. He argued there is no such thing in the Code of Civil Procedure as "shout service" and the mailing address used (the old mailbox address) was incorrect, such that the efforts at service were not reasonably diligent.
The April 20, 2010 minutes of the trial court's hearing on the motion to dissolve or modify the restraining order states that both Respondent and Appellant were represented by counsel, and both testified as witnesses (although Appellant's brief states that he did not testify). The motion to modify or dissolve the restraining order was denied, and from the minute order, it can be implied that the trial court must also have denied the request for leave to file a special motion to strike the petition. Although counsel for the District was directed to prepare the order, there is no such formal order in the record.
On June 18, 2010, Appellant filed a timely notice of appeal. He originally designated the record to include a reporter's transcript, but amended the designation to delete it. Respondent supplemented the record to include its opposition to the motion.
DISCUSSION
There was no appeal from the original order, but Appellant now challenges its validity on a number of grounds. We consider standards applicable to the ruling on the motion to dissolve or modify the original order, and to the allowable extent, the validity of that underlying order. (§ 904.1, subd. (a)(6).)
Ordinarily, we would consider this appeal to be timely only as to the ruling specified in the notice of appeal, but since this is a matter of the trial court's equitable jurisdiction to dissolve or modify an existing injunctive order, it is appropriate to consider the facial validity of that order, under accepted constitutional and statutory standards. (Evans, supra, 162 Cal.App.4th 1157, 1166-1167; see Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1084 (Malatka) [in light of restrictions on appealability and reviewability, the court reached only new issues of fact or law arising from a ruling on a motion to dissolve a restraining order, and not issues that could have been raised in an appeal from the original order].)
We first address the jurisdictional challenges to the validity of the original order. We then turn to the arguments concerning the denial of the motion to dissolve or modify the original order, and set forth the appropriate standards of review in connection with each portion of this discussion.
I
ORIGINAL ORDER
A. Standards
"To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the merits, and that the harm to the plaintiff from not granting the injunction outweighs the harm to the defendant if the injunction is issued pending trial. [Citation.] 'The trial court's determination must be guided by a "mix" of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.' " (Evans, supra, 162 Cal.App.4th 1157, 1166.) This restraining order, issued after hearing for a three-year period, should be measured by the same standards.
On appeal, an abuse of discretion standard applies for determining whether the trial court properly evaluated the applicable factors. In Evans, this court also was required to consider the constitutionality of the order on appeal, a preliminary injunction preventing a former wife from making numerous complaining and accusatory phone calls to her former husband's employer, the sheriff's office. Here and there, "we independently review the question whether the trial court correctly interpreted and applied the applicable constitutional principles. [Citation.] Facts relevant to the constitutional analysis must be reviewed de novo, independent of the trial court's findings." (Evans, supra, 162 Cal.App.4th 1157, 1166.)
B. Contentions; Service and Scope of Order
Appellant challenges the validity of the manner of service of the original moving papers in September 2008, arguing there was no adequate substituted or mail service or publication, and that the District was not reasonably diligent in trying to find him. Under section 532, subdivision (a), "[i]f an injunction is granted without notice to the person enjoined, the person may apply, upon reasonable notice to the judge who granted the injunction, or to the court in which the action was brought, to dissolve or modify the injunction. . . ." Appellant did not pursue relief under this section, nor appeal the original order, nor challenge it until this motion was brought. (§ 904.1, subd. (a)(6).)
The scope of an appeal under section 904.1, subdivision (a)(6), of a ruling on a motion to modify an injunction, is not unlimited. Generally, the courts will not permit "the manipulation of the time allowed for an appeal" where a reconsideration motion has been brought challenging an earlier, nonappealed order. (Malatka, supra, 188 Cal.App.4th 1074, 1082, citing, e.g., Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242.)
In Malatka, the court analyzed the timeliness of challenges to a ruling modifying a earlier preliminary injunction. (Malatka, supra, 188 Cal.App.4th at pp. 1083-1084, citing Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 252-253 (Scully).) In Scully, the court explained that in an appeal from an order modifying an injunction, relief is allowable in situations in which: "(1) the later orders have modified an injunction 'in important particulars' [citation] and the appeal challenges the modifications [citations]; or (2) the appeal may have been timely even if taken from the original injunction [citation]; or (3) the appellant contested the procedures by which the injunction was modified [citations]." (Scully, supra, at pp. 252-253.)
In Respondent's opposition to the motion to modify, he sought to rebut Appellant's claim in his moving papers that no proper service was accomplished on September 19, 2008, when service on the water took place by megaphone notification (shouting) and then mailing. Respondent argues that Appellant could not reasonably expect that the papers would be dropped into the sea between the two boats, and that the later mailing was appropriate because Appellant had not updated his address with the District, which was a term and condition of his permit to anchor at the Anchorage.
Appellant's declaration does not mention whether he ever provided a different mailing address to the District, after he quit using his mailbox address. He also does not deny receiving the papers in October 2008, when the firearms order was also served. Based on his failure to appeal the earlier order or to invoke the provisions of section 532 to challenge it, we conclude he cannot now challenge the manner of service of the original moving papers, since the current proceedings contained evidence that he was served in a timely manner and has had actual notice of the order, for all the relevant time periods.
Further, it would not be proper to go behind the face of the original order to re-examine the adequacy of the evidence Respondent originally presented, on whether he suffered substantial emotional distress from Appellant's conduct or whether enough incidents of harassing conduct were shown, or if any stalking allegations are supported (since the only stalking reference in the order is in the fee waiver portion, para. 13). Although we will not now look behind the face of the original order, under section 533, if Appellant is now contesting "the procedures by which the injunction was [not] modified," (i.e., by allowing testimony without proper compliance with rule 3.1306), then any such arguments may be renewed in the further proceedings to be directed, regarding his protected speech claims, as we next explain. (Malatka, supra, 188 Cal.App.4th 1074, 1083-1084; Scully, supra, 208 Cal.App.3d at pp. 252-253.)
II
CURRENT ORDER
A. Standards and Contentions
Appellant attacks both the substance of the current order, as it relates to the original order, and the procedure used at the hearing on the motion. We first address the procedural issues. On review of an order denying a motion to dissolve an injunction, an abuse of discretion standard of review applies. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505, citing Salazar v. Eastin (1995) 9 Cal.4th 836, 850.)
In deciding whether to modify or dissolve the restraining order, the trial court was subject to these standards set forth in section 533:
"In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order."
B. Abuse of Discretion Arguments: Problems with Record
Appellant objects to the order denying his motion to dissolve or modify the restraining order, claiming the hearing procedures on the motion, allowing testimony from Respondent without proper notice or justification, were improper. (Rule 3.1306.) He also complains that the court's ruling did not address the request for leave to file a special motion to strike under section 425.16, and we will assume the request was denied.
The "party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard); Evid. Code, §§ 115, 500 [burden on proponent of a position].) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted.)
To the extent Appellant is relying on section 533 to claim there was a material change in the facts upon which the injunction was granted, the lack of a reporter's transcript of the hearing prevents us from analyzing the respective showings made at the hearing, which the trial court was entitled to evaluate in making its discretionary determinations. This would include credibility determinations as they affected any ongoing need for the original order. Without an adequate record of all the circumstances of the case, we cannot evaluate the trial court's exercise of discretion in that respect. (See Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Ballard, supra, 41 Cal.3d at p. 574 [in the absence of an adequate record, the court has no way of ascertaining whether it is reasonably probable that alleged errors were prejudicial].) However, Appellant makes further facial challenges to the order.
C. De Novo Review of Challenges to Order
1. Scope of Order; Protected Speech
Under section 533, the trial court would have been justified in modifying or dissolving the injunction if Appellant could show that the law had changed in his favor, or that the ends of justice would be served by the requested order. He makes no significant claim of any change in the law. Regarding the ends of justice, we next address his arguments regarding the facial overbreadth of the order.
In Hagberg, supra, 32 Cal.4th 350, the court explains that "under the contemporary interpretation of [Civil Code] section 47, subdivision (b)," an absolute privilege exists to shield "a citizen's report to the police concerning suspected criminal activity of another person." (Hagberg, supra, at p. 375.) " 'An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.' " (Id. at p. 362.) The reason for shielding such communications is to avoid penalizing statements that urge law enforcement personnel to investigate another person's suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities, even as a preliminary to "any other official proceeding authorized by law." (Id. at p. 364.)
In Evans, supra, 162 Cal.App.4th 1157, a former wife (Linda) appealed a pretrial order that prohibited her from communicating with the law enforcement agency where her ex-husband (Thomas) was employed, about her ex-husband's alleged misdeeds. The order expressly stated that it "should not be construed to prohibit defendant[] from calling 911 to report criminal conduct." (Id. at pp. 1164-1165.) She was additionally enjoined from "publishing false and defamatory statements and/or confidential personal information about [Thomas] on the internet." (Ibid.)
In Evans, supra, 162 Cal.App.4th 1157, this court discussed both aspects of the injunction (defamation and contacts with law enforcement). As most relevant here, the order was deemed overbroad regarding her communications to the law enforcement agency, because: "Reasonably interpreted, the order would prohibit Linda from communicating information to the Sheriff's Department about Thomas which she believes would be relevant to law enforcement concerns. Even if the information does not directly concern criminal conduct or an emergency, the information may be relevant to public safety issues or to Linda's subjective feelings of personal safety. Private citizens have the fundamental right to present concerns to government agencies, particularly an agency that has law enforcement jurisdiction over the area in which the citizen resides. [Citation.] Whether the agency finds these concerns to be valid or substantiated is, of course, a different question." (Id. at pp. 1172-1173.)
To address the issue of whether some level of communication to the law enforcement agency might be protected, not pure harassment, this court took note that "there are less intrusive means to limit Linda's filing false complaints with the Sheriff's Department. Government agencies can establish reasonable requirements before an individual may be permitted to file a complaint. If the Sheriff's Department believes the complaints are unwarranted or burdensome, it has the authority to take administrative action to address these problems." (Evans, supra, 162 Cal.App.4th 1157, 1173.) In Evans this court limited the scope of the discussion by noting that it was only a preliminary injunction on appeal, and it was possible that the trial court, on a more developed factual record, might be justified in issuing a permanent injunction limiting Linda's contacts with Thomas's employer, after trial. (Ibid.)
Appellant argues Evans, supra, 162 Cal.App.4th 1157, supports his position, and that his conduct was not sufficiently annoying or burdensome to be enjoined. He relies on a different statutory analysis in U.S. v. Popa (D.C. Circ. 1999) 187 F.3d 672, 673-674 (Popa), in which the defendant was charged with violating title 47 United States Code section 223(a)(1)(C), which criminalizes conduct of making anonymous harassing telephone calls that amount to noncommunicative uses (e.g., tying up line). That defendant admitted he called the U.S. Attorney's office seven times (two of which were recorded) "to complain about having been assaulted by police officers and about the prosecutor's conduct of a case against him." (Popa, supra, at p. 677.) Thus, the calls had a political content; however, defendant used racially vilifying and annoying language (referring to the subject of the calls, then-U.S. Attorney Eric Holder, as a " 'criminal with cold blood,' " and a " 'whore, born by a negro whore, [who] became chief prosecutor of Washington, D.C.' " (Id. at p. 673.)
On appeal in Popa, supra, 187 F.3d 672, 676-677, the court found that the conviction was unsupported, because the statute should be construed narrowly in light of free speech protections, and within the meaning of the statute, the challenged conduct did not materially burden the important governmental interests embodied in it: "There is, however, no evidence that Popa's seven phone calls over the course of a month in any discernable way impeded the efficiency of the U.S. Attorney's office. Indeed, we can safely say the Government's interest in efficiency 'is simply not implicated on the facts before us,' which entail the brief distraction of the clerical staff who answered Popa's calls. [Citation.]" (Id. at p. 677.)
These cases teach us that a pretrial order restraining a citizen from contacting law enforcement, even through repeated telephone calls to an official number, must be narrowly drawn to protect any potentially privileged reports of suspected criminal activity. The absolute privilege analysis should focus on whether the communications to law enforcement were of the protected character, regardless of their truth or falsity. (See Hagberg, supra, 32 Cal.4th 350, 370-372.) "The privilege is not restricted to statements made once a proceeding has been commenced, but may apply to statements made in advance." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.) The trial court should exercise its discretion "upon a consideration of all the particular circumstances of each individual case." (Salazar v. Eastin, supra, 9 Cal.4th 836, 850.)
Some of Appellant's calls criticized Respondent's character and professional abilities. In Balboa Island v. Lemen (2007) 40 Cal.4th 1141, the California Supreme Court required the trial court to modify an injunctive order that forbade the defendant from making "defamatory" comments, and explained that a court determination of defamatory effect was required, and "the injunction must not prevent [the defendant] from presenting her grievances to government officials. The right to petition the government for redress of grievances is 'among the most precious of the liberties safeguarded by the Bill of Rights.' [Citation.]" (Id. at pp. 1160-1161.) The court returned the matter to the trial court, with directions to issue a narrower injunctive order, e.g., prohibiting defendant from " 'from making the [specified] defamatory statements about Plaintiff to third persons other than governmental officials with relevant enforcement responsibilities.' " (Ibid., italics added.)
2. Analysis and Directions on Remand
Read in light of the above authorities and the procedural posture of this case, the original order is overbroad on its face, because its scope is not entirely supported by the petition containing the request for relief (which is part of this record), setting forth Respondent's occupation and work place at the Harbor police and District offices, and seeking to restrain all contact there. Some of Appellant 's alleged communicative conduct may arguably fall within the areas of absolute privilege to petition the government and its officials "with relevant enforcement responsibilities" for redress of grievances, such that the trial court erred in denying outright the motion to modify or dissolve the original order. (Balboa Island v. Lemen, supra, 40 Cal.4th 1141, 1161.) In particular, paragraph 6B of the original order prohibits any contact with Respondent as an individual, including telephone, messages, or e-mail, but it does not specify whether any other contacts with District or Harbor police office personnel may be pursued for any lawful or privileged purposes. Likewise, the stay-away orders in paragraph 7 are overbroad with respect to the jobs or workplaces of Respondent, and possibly also his work vehicle. Moreover, it is not clear from the record if "the procedures by which the injunction was [not] modified" were followed regarding the scope of testimony previously allowed. (Malatka, supra, 188 Cal.App.4th at pp. 1083-1084; § 533; rule 3.1306.)
We are mindful that anti-harassment proceedings are expedited in nature, but where the original request for relief discloses that potentially privileged conduct may be involved on the part of the respondent or defendant, the court must inquire into the appropriate balance between protecting the respondent from the type of conduct that constitutes harassment, and protecting a citizen's protected communications to law enforcement authorities. (§ 527.6.) This record requires reversal of the orders with directions to conduct such further proceedings as will enable the trial court to make an informed decision and exercise of its discretion, under all the relevant circumstances, and to modify the order as necessary to narrow its scope, or to dissolve the order. We note that the original order currently expires October 9, 2011, and no issues are presented here regarding any need for extension of the order. This reversal makes moot the request for leave to file a motion to strike under section 425.16.
DISPOSITION
The orders of the trial court are reversed with directions to conduct further proceedings on the motion to modify or dissolve the restraining order, consistent with the views expressed in this opinion. Each party is to bear his own costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR:
BENKE, J.
HALLER, J.