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

B242499

IN THE COURT OF APPEAL OF CALIFORNIASECOND 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 Kandel447 S. Ventu Park Rd.Newbury Park, CA 91320(213) [email protected]

Defendant and AppellantIn Propria Persona

TABLE OF CONTENTS

APPELLANT’S 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. Dawn’s 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 Scott’s “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 Scott’s “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

Dawn’s 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.

APPELLANT’S OPENING BRIEF [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, Dawn’s Petition Must Also Fail Because She

is Attempting to Renew an Injunction that is now EXPIRED. 40

e. As a Matter of Law, Dawn’s 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, Dawn’s Petition Cannot Succeed, as

There is Neither Evidentiary Support Nor Persuasive Arguments

Presented by Her. 42

g. Dawn’s Requested Injunctive Relief is Overly Broad and

Unconstitutional, Given the Alleged Circumstances of the

Instant Case. 46

E. Contrary to Dawn’s Assertion, Scott’s CCP Section 425.16

Anti-SLAPP Special Motion to Strike is NOT Frivolous. 48

VII. SCOTT’S 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.4th ................................................................................... 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

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I. ISSUES OF FIRST IMPRESSION PRESENTED.

A. Is the Code of Civil Procedure (CCP) § 425.16 Anti-SLAPP1 statuteapplicable to Family Code (FC) sections?

B. Can the Anti-SLAPP statute be applied to Domestic ViolencePrevention Act [Division 10: §§ 6200 - 6409] petitions?

C. Is a Request to Renew Restraining Order under Family Code § 63457 Jcause of actionK and/AB 7 JpetitionK subject to the Anti-SLAPPstatute?

D. Does a request for an injunction which contains a prior restraintorder, in violation of the First Amendment, standing alone, meetthe 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 theFifth and Fourteenth Amendments to the U.S. Constitution orArticle I, Sections 7 and 15 of the California Constitution?

F. Is a Request to Renew Restraining Order under Family Code § 6345that contains substantive changes to the terms of the original ordera renewal or an entirely new injunctive order request?

G. Is a an extension to a restraining order based on a Request toRenew Restraining Order under Family Code § 6345, when there isno new evidence since the issuance of the original restrainingorder, 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 areto 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 thereader's task.

2

%22)..%05L4 12)0-0+ &3-)*

Respondent and plaintiff Dawn Kandel %hDawni Z] h]P^[ZYOPY_k) 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 %hDP_T_TZYi), 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 fouYO _SL_ 8LbYk^ DP_T_TZY bL^ YZ_ L hNL`^P ZQ LN_TZYi

under the Anti-SLAPP statutes and denied Scott's motion. The Trial Court erred.

8LbYk^ Petition is a meritless SLAPP as it would have the effect of chilling FNZ__k^ First

Amendment rights and the Trial Court's order denying Scott's motion should be

reversed.

As instructive to this case, a sister state, g New Jersey, g once saw its Supreme

Court so eloquently opine' hIP ]PNZRYTeP _SL_ TY _SP Lrea 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 tothe California Code of Civil Procedure and FC to the California Family Code.

3

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rather than as a shield(i %State v. Hoffman (1997) 146 N.J. 564) (emphasis added). In

this context, 8LbYk^ DP_T_TZY T^ MPTYR used as a sword in yet another gratuitous attempt to

cut off and/or limit FNZ__k^ 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 29th, 2008, respondent Dawn filed for divorce from appellant Scott in the

Ventura County Superior Court.

On April 23rd, 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 _Z MP ZYWd hQWippant remarks on the telephonei (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

%22)..%05L4 12)0-0+ &3-)*

On May 16th, 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 ZQ 7LWTQZ]YTLk^ form DV-700 as her Petition. (JA 4 g 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 ZY FNZ__k^ ^peech

and expression. (JA 8:22-23).

On May 17th, 2012, Scott filed his opposition to the ex parte application. (JA 74 g

115). That same day, an ex parte hearing was held in the Ventura County Superior Court

%EP[Z]_P]k^ G]LY^N]T[_ JEGK * g 15), at which the Honorable Judge William Q. Liebmann

made the following important rulings: 1.) all the material hPaTOPYNPi ^`MXT__PO Md 8LbY

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' hGSP

restraining order that is currently in place and expires on May 18, 2012, is not extended

pending the hearing datei. (JA 117) (emphasis added). Also at the ex parte hearing,

Scott requested a contested hearing on Dawnk^ ]P\`P^_ to renew the injunctive order

against him, and Dawn selected July 10th, 2012 as the date for that hearing. (RT 4:7,

14:1-4).

5Q_P] ]PNPTaTYR LYO ]PaTPbTYR 8LbYk^ complete Request to Renew Restraining

Order Petition, and then coming to understand that the gravamen of 8LbYk^ ]P\`P^_ Q`WWd

implicated FNZ__k^ First Amendment rights while also attempting to chill those rights,

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%22)..%05L4 12)0-0+ &3-)*

Scott filed an Anti-SLAPP Special Motion to Strike on June 4th, 2012. (JA 118 g 153).

The hearing date for the Anti-SLAPP motion was set for July 3rd, 2012. (JA 119:Item

2(a)).

In response to FNZ__k^ 5Y_T-SLAPP motion, Dawn filed her opposition on June

20th, 2012. (JA 154 g 193). In her response, among other things, her attorney, Paul F.

Moore II, by declaration and through argument, L^^P]_PO _SL_ FNZ__k^ 5Y_T-SLAPP motion

was frivolous and misguided. (JA 164:18-20, JA 157:7). In addition, Dawn attempted to

amend her May 16th, 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 26th, 2012, Scott filed a reply to Dawnk^ Anti-SLAPP opposition. (JA

194 g 368). In his reply, among other things, Scott detailed why he believed the Anti-

SLAPP motion was not frivolous (JA 198:19 g 199:12, 233:7-14, 236:14-17), why the

gravamen ZQ 8LbYk^ DP_T_TZY OTO TX[WTNL_P ST^ First Amendment rights (JA 130:15 g

135:2, 199:14 g 211:9), why Dawn showed no probability of success on the second prong

of the Anti-SLAPP test (JA 211:11 g 226:18), as well as thoroughly replying to and

rebutting all the substantive points argued by Dawn in her responsive pleadings. (JA

226:20 g 232:18).

On July 3rd, 2012, a hearing was held on the Anti-SLAPP motion. (RT 16 g 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 FNZ__k^ 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 OTOYk_ MPWTPaP L EP\`P^_ _Z EPYPb EP^_]LTYTYR C]OP] bL^ L hNL`^P ZQ

LN_TZYi `YOP] _SP 5Y_T-SLAPP statutes (RT 18:3-16, 20:20-27); 2.) if the Trial Court

thought T_ bL^ L hNL`^P ZQ LN_TZY h' T_ 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 10th, 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 FNZ__k^ 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).

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VI. ARGUMENT. THE TRIAL COURT IMPROPERLY DENIED SCOTT'SSPECIAL MOTION TO STRIKE.

A. CCP Section 425.16 Establishes a Structured Two-Step Process Whichthe Court Must Use.

hGSP @PRT^WL_`]P PYLN_PO _SP LY_T-SLAPP statute to address the societal ills caused

by meritless lawsuits that are QTWPO _Z NSTWW _SP PcP]NT^P ZQ ;T]^_ 5XPYOXPY_ ]TRS_^(i

(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).

hGSP ^_L_`_P ]P\`T]P^ _bZ ^_P[^ QZ] ^_]TVTYR L NL`^P ZQ LN_TZY(i (Lefebvre v.

Lefebvre, supra, at p. 702&( >Y _SP QT]^_ []ZYR' h_SP NZ`]_ T^ _L^VPO bT_S OP_P]XTYTYR

whether the defendant has made a threshold showing that the challenged cause of action

T^ ZYP jL]T^TYR Q]ZXk []Z_PN_PO LN_TaT_d(i %Ibid.) If the defendant makes such a showing,

the court p]ZNPPO^ _Z _SP ^PNZYO []ZYR _Z hOP_P]XTYP bSP_SP] _Se plaintiff has

OPXZY^_]L_PO L j[]ZMLMTWT_d ZQ []PaLTWTYRk ZY ST^ Z] SP] NWLTX(i %Ibid.)

hThe goal [of section 425.16] is to eliminate meritless or retaliatory litigation at

an early stage of the proceediYR^(i (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

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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

[WLTY_TQQ hmust 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

submitteO Md _SP [WLTY_TQQ T^ N]POT_PO(i (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.

4F`MOTaT^TZY %M&%*& []ZaTOP^3 h5 NL`^P ZQ LN_TZY LRLTY^_ L [P]^ZY L]T^TYR Q]ZX LYd LN_ ZQ

that person in furtherance of the person's right of petition or free speech under theUnited States or California Constitution in connection with a public issue shall besubject to a special motion to strike, unless the court determines that the plaintiff hasestablished that there is a probability thL_ _SP [WLTY_TQQ bTWW []PaLTW ZY _SP NWLTX(i

5F`MOTaT^TZY %P& ^P_^ QZ]_S NL_PRZ]TP^ ZQ LN_^ NZaP]PO Md ^PN_TZY -+.(*/ L^ QZWWZb^3 h%*&

any written or oral statement or writing made before a legislative, executive, or judicialproceeding, or any other official proceeding authorized by law; (2) any written or oralstatement or writing made in connection with an issue under consideration or review bya legislative, executive, or judicial body, or any other official proceeding authorized bylaw; (3) any written or oral statement or writing made in a place open to the public or apublic forum in connection with an issue of public interest; (4) or any other conduct infurtherance of the exercise of the constitutional right of petition or the constitutionalright ZQ Q]PP ^[PPNS TY NZYYPN_TZY bT_S L [`MWTN T^^`P Z] LY T^^`P ZQ [`MWTN TY_P]P^_(i

9

%22)..%05L4 12)0-0+ &3-)*

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 T^ YZ_ L hNL`^P ZQ LN_TZYi 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.

>Y *22+' TY ]P^[ZY^P _Z _SP hOT^_`]MTYR TYN]PL^Pi TY XP]T_WP^^ WLb^`T_^ M]Z`RS_ hto

chill the valid exercise of the constitutional rights of freedom of speech and petition for

_SP ]PO]P^^ ZQ R]TPaLYNP^'i the Legislature overwhelmingly enacted California's Anti-

SLAPP law, Code of Civil Procedure, section 425.16. The Legislature intended CCP

section 425.16 _Z []Z_PN_ LRLTY^_ hLM`^P ZQ _SP UÒTNTLW []ZNP^^(i %CCP § 425.16, subd.

(a)). GSP ^_L_`_P NZaP]^ h[a] cause of action against a [P]^ZY L]T^TYR Q]ZXi specified

petition or speech activity. (CCP § 425.16, subd. (b)(1)). The statute expressly states

_SL_ _SP OPQTYT_TZY ZQ L hNZX[WLTY_i TYNWÒP^ L hpetitioni4 8LbYk^ QTWTYR bL^ L hpetitioni

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 tSL_ h_SP [WLTY WLYR`LRP ZQ _SP jL]T^TYR Q]ZXk prong encompasses any action

based on protected speech or petitioning activitd L^ OPQTYPO TY _SP ^_L_`_P(i (Jarrow

10

%22)..%05L4 12)0-0+ &3-)*

Formulas v. LaMarche (2003) 31 Ca1.4th 728, 734 (Jarrow Formulas)), citing Navellier

v. Sletten (2002) 29 Ca1.4th 82, 89-95 (Navellier). h[I]n choosing comprehensive

language for the anti-SLAPP ^_L_`_P$^ jL]T^TYR Q]ZXk 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 whZ SL^ PcP]NT^PO NP]_LTY ]TRS_^(i (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)). GS`^' h[t]he Legislature clearly knows how to create an

exemption from the anti-SLAPP statute when it wisSP^ _Z OZ ^Z(i (Jarrow Formulas,

supra, at p. 735).

As our Supreme Court noted when applying CCP § 425.16 to contract and

Q]LÒ NWLTX^' hnothing 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 in_PY_TZY bSTNS T^ YZ_ Pc[]P^^PO(i (Navellier, supra,

at p. 92) (internal citations omitted).

11

%22)..%05L4 12)0-0+ &3-)*

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 Councilks DV-

700 form. (Ibid.)

CCP § 425.17 was adopted in 2003 to aOO]P^^ ha disturbing abuse of Section

425.16 .((i (CCP § 425.17, subd. (a)). CCP § 425.17 exempts certain lawsuits from

the ambit of CCP § 425.16, the primary Anti-SLAPP statute. 5^ ^`NS' hit raises a

threshold issue, and we address it prior to examining the applicability of section

-+.(*/(i (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' L^ T^ XZ^_ TX[Z]_LY_ _Z FNZ__k^ 5Y_T-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. h "[F]acially the anti-SLAPP statute

applies to "petitions" and no exception is made for one filed under the civil

12

%22)..%05L4 12)0-0+ &3-)*

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]).i (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

Z[TYPO' hFerdin 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.i %City of Los Angeles, Id. at p. 635) (emphasis added).

13

%22)..%05L4 12)0-0+ &3-)*

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 _SP @PRT^WL_`]Pk^ Domestic Violence

scheme as defined in Division 10: FC Sections 6200 I 6409, as well as on the

7LWTQZ]YTL ?ÒTNTLW 7Z`YNTWk^ 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

XPXMP]k^ 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.

hWhereas here, legislative intent is Pc[]P^^PO TY `YLXMTR`Z`^ _P]X^ j_SP NZ`]_k

must treat the stL_`_Z]d WLYR`LRP L^ NZYNW`^TaP(i (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 G]TLW 7Z`]_ ]`WPO _S`^Wd' hBut as far as the application of 425.16, this is

not a cause of action under that section; therefore, I am denying the motion.i (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. hJGKhe anti-SLAPP statute allows for a

special motion to ^_]TVP _Z MP QTWPO LRLTY^_ LYd jcause 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

[`MWTN T^^`P((((k (§ 425.16, subd. (b)(1)). ISL_ NZY^_T_`_P^ L jNL`^P ZQ LN_TZYk 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)).i (Thomas, supra, at p. 625) (emphasis added).

hUntil 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).i %Ibid.) (emphasis added).

15

%22)..%05L4 12)0-0+ &3-)*

Loeffler v. Medina touches directly on this issue as related to injunction renewal

requests: hRitchie 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.)i %Loeffler v. Medina

(2009) 174 Cal.App.4th 1495, 1504) (emphasis added). It is elementary logic, then, to

conclude that a hpetitioning partyi X`^_ SLaP QTWPO L related hpetitioni.

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]' ^_L_P^' hInjunction. 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)i.

(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 _ST^ h[P_T_TZYi T^^`P 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

h[P_T_TZYi.

Given the case law and arguments tendered above, it is apparent that the Trial

Court made an error of WLb Md OPYdTYR FNZ__k^ 5Y_T-SLAPP motion based on the

Anti-SLAPP statue not being applicable to 8LbYk^ 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

]P\`T]TYR _SL_ _SP ^_L_`_P MP hNZY^_]`PO M]ZLOWd(i (Stats. 1997, ch. 271, § 1, amending

subd. (a)).

In 1999, the California SupreXP 7Z`]_ OT]PN_PO _SL_ NZ`]_^' hwhenever possible,

should interpret the First Amendment and section 425.16 in a manner 'favorable to the

exercise of freedom of ^[PPNS' YZ_ _Z T_^ N`]_LTWXPY_(i (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 g if not presciently g the majority opinion ends with the observation

_SL_ hJTKQ bP _ZOLd XT^_LVP _SP @PRT^WL_`]Pk^ TY_PY_TZY' _SP @PRT^WL_`]P XLd PL^TWd LXPYO

17

%22)..%05L4 12)0-0+ &3-)*

the statutP(i %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.

8LbYk^ Detition is primarily OT]PN_PO L_ FNZ__k^ ^[PPNS LN_TaT_TP^ ZY [`MWTN

Internet websites (JA 31 g 73, 7:1-6, 8:9:28 g 10:3) and his petitioning activity. (JA 9:3-

5). =P] L__PX[_ _Z NSTWW FNZ__k^ First Amendment rights is the gravamen of her claims

(JA 130:15 g 135:28, 31 g 73, RT 17:1-10, 21:26 g 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 _SP OPQPYOLY_k^

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.4th,

Opinion filed October 4th, 2012 (Chaker)).

Chaker, in part, relied on another recent Anti-SLAPP published opinion related to

posts on the Internet 7]LTR^WT^_ jELY_^ LYO ELaP^k bPM^T_P, in which the Court ruled that

Internet posts WLNVPO hthe formality and polish typically found in documents in which a

reader would expect to find facts.i (Summit Bank v. Rogers (2012), 206 Cal.App.4th

669, 696I701, 142 Cal.Rptr.3d 40).

h[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

%22)..%05L4 12)0-0+ &3-)*

with facts. . . . Indeed, the very fact that most of the posters remain anonymous, or

pseudonymous, is a cue to discount their statement^ LNNZ]OTYRWd(i (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 JhPosters on Yahoo! message

boarO^ ZQ_PY XLVP Z`_]LRPZ`^ NWLTXî LYO h[m]ost visitors are completely aware of the

uY]PWTLMWP YL_`]P ZQ _SP^P [Z^_îK).

The question of whether FNZ__k^ 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). hAfter

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.i (Id. at p.

239).

19

%22)..%05L4 12)0-0+ &3-)*

Without doubt, Internet message boards are places h jopen to the public or a

public forumk 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& JIPM ^T_P T^ [`MWTN QZ]`XK(i (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 iJ[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 fPL] ZQ TY_TXTOL_TZY Z] ]P[]T^LWi]; Global Telemedia Intern., Inc. v. John

Doe 1 (C.D. Cal. 2001) 132 F.Supp.2d 1261, 1267 (Global Telemedia) [finding Internet

postings hare full of hyperbole, invective, short-hand phrases and language not generally

found in fact-based documents(iK).

hTo put it mildly, these postings . . . lack the formality and polish typically found

in documents in which a reader would expect to find facts.i (Global Telemedia, supra, at

p. 1267; Krinsky, supra, 159 Cal.App.4th at p. 1163 Jhonline discussions may look more

like a vehicle for emotional catharsis than a forum for the rapid exchange of information

LYO TOPLî]).

20

%22)..%05L4 12)0-0+ &3-)*

7ZXXPY_^ _SL_ L]P YZ XZ]P _SLY h jrhetorical hyperbolek, jvigorous epithet[s]k,

jlusty and imaginative expression[s] of . . . contemptk, LYO WLYR`LRP `^PO jin a loose,

figurative sensek have all been acco]OPO NZY^_T_`_TZYLW []Z_PN_TZY(i (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

NZY^T^_PO ZQ L hcockroachi' hlosersi, hboobsi, LYO hN]ZZVî QPWW TY_Z _SP R]Z`[TYR ZQ

hcrude satiric hyperbole which, while reflecting the immaturity of the speaker, constitute

[]Z_PN_PO Z[TYTZYi]); Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676,

690-691 [title "Lies, Damn Lies, and Fund Advertisements" nonlibelous as hsimply

jTXLRTYL_TaP Pc[]P^^TZYk Z] jrhetorical hyperbolek' traditionally protected under the First

5XPYOXPY_i]; James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 12

[article de^N]TMTYR WLbdP] L^ PYRLRTYR TY hsleazy, TWWPRLW' LYO `YP_STNLW []LN_TNPi QPWW TY_Z

hprotected zonei ZQ himaginative expressioYi Z] h]SP_Z]TNLW Sd[P]MZWPi]).

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-)*

YZ_PO3 h jLike the SLAPP statute itself, the question whether something is an issue of

public interest must be g NZY^_]`PO M]ZLOWdk J7T_L_TZY^(K 5Y jT^^`P ZQ [`MWTN TY_P]P^_k T^

jany issue in which the public is interested(k J7T_L_TZY(K h[I]t may encompass activity

between private people.i [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.

hIP WZZV QZ] jthe principal thrust or gravamen of the plaintiffs cause of LN_TZY(k

J7T_L_TZY(K IP jdo not evaluate the first prong of the anti-SLAPP test solely through the

lens of a plaintiffk^ NL`^P ZQ LN_TZY(k J7T_L_TZY(K GSP jN]T_TNLW NZY^TOP]L_TZYk is what the

NL`^P ZQ LN_TZY T^ jML^PO ZY(k [CitatTZY(Ki (Hecimovich. supra, 203 Cal.App.4th at pp.

464-465).

The website posts, which Dawn attributes to Scott, provide the bulk of her

inadmissible hPaTOPYNPi (RT 5:5-21, JA 31 g 73). These posts are from two websites that

were/are dedicated to free speech and expression and Scottk^ alleged exercise thereof (JA

133:19 g 135:13, 206:10 g 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

_SP hM]ZLOi TY_P][]P_L_TZY ZQ 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-)*

FNZ__k^, must be considered written and other expressions of his First Amendment rights

on issues of public interest and/or public significance including: divorce, QL_SP]^k ]TRS_^,

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 g 135:26, 151:6 g

152:4, 206:10 g 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 jFraud by Non-disclosure, Concealment, and Deceitk as

well as Marie Fisher, his former Professional Supervised Visitation Monitor and her

company Caring Hearts Agency, for jBreach of Contract, Fraud, Professional

Negligence, Gross Negligence, Negligence, and Outragek (JA 9:4 g 5), as well as

humorous references and/or scathing criticism allegedly posted by Scott about other

individuals involved in their dissolution proceeding (JA 61 g 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. 6`_ FNZ__k^ [P_T_TZYTYR TY _SL_ ]PRL]O

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), [hany

written or oral statement or writing made before a legislative, executive, or judicial

23

%22)..%05L4 12)0-0+ &3-)*

proceeding, or any other official proceeding authorized by law;i]) (emphasis added).

GS`^' 8LbYk^ Lttempt 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 8LbYk^ DV-700 Request to Renew Restraining Order, she

L^V^ QZ] _SP QZWWZbTYR ]PWTPQ3 h> request that he not be allowed to post disparaging

comments about me or post the details of our divorce proceedings(i (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

VYZbY L^ L hprior restraint(i (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).

8LbYk^ 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).

hGSP [WLTY WLYR`LRP ZQ Z`] ^_L_P 7ZY^_T_`_TZY LW^Z []ZSTMT_^ []TZ] ]P^_]LTYts on

^[PPNS3 j9aP]d [P]^ZY XLd Q]PPWd ^[PLV' b]T_P LYO [`MWT^S ST^ Z] SP] ^PY_TXPY_^ ZY LWW

subjects, being responsible for the abuse of this right. A law may not restrain or abridge

WTMP]_d ZQ ^[PPNS Z] []P^^(k i (Cal. Const., art. I, § 2, subd. (a); and see Dailey v.

Superior Court (1896) 112 Cal. 94, 100). GST^ []ZaT^TZY T^ h[a] protective provision more

definitive and inclu^TaP _SLY _SP ;T]^_ 5XPYOXPY_(i (Wilson v. Superior Court (1975) 13

Cal.3d 652, 658).

hGSP ]TRS_ _Z Q]PP ^[PPNS T^ ZYP ZQ _SP NZ]YP]^_ZYP^ ZQ Z`] ^ZNTP_d'i LYO T^

protected under the First Amendment of the United States Constitution and under an

hPaPY M]ZLOP]i []ZaT^TZY ZQ _SP California Constitution. (Hurvitz v. Hoefflin (2000) 84

Cal.App.4th 1232, 1241 [101 Cal.Rptr.2d 558] (Hurvitz)4 w^PP Cal. Const., art. I, § 2,

subd. (a)) (emphasis added).

h[P]ermanent injunctions - i.e., court orders that actually forbid speech activities -

are classiN PcLX[WP^ ZQ []TZ] ]P^_]LTY_^(i (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, Jha 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

[]TaLNdi]; 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]).

5 []TZ] ]P^_]LTY_ T^ hthe most serious and the least tolerable infringement on First

Amendment rights.i (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 ZQ LYd [P]TZOTNLW NZY_LTYTYR hmalicious, scandalous

LYO OPQLXL_Z]di XLtter].

Our Sup]PXP 7Z`]_ SL^ ^_L_PO _SL_ _SP hpublication of information about a person,

jbT_SZ`_ ]PRL]O _Z _]`_S' QLW^T_d' Z] OPQLXL_Z]d NSL]LN_P] ZQ _SL_ TYQZ]XL_TZY'k [is] not

subject to prior restraint.k i (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). hThe 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

NPY^Z]^ST[ L]P QZ]XTOLMWP(i (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S.

546, 558-559) (emphasis added).

hGSP RZaP]YXPY_ MPL]^ L SPLad M`]OPY _Z U`^_TQd L []TZ] ]P^_]LTY_(i %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

LYO hMPTYR Q`YOLXPY_LW'i LYd RZaP]YXPY_LW ]P^_]LTY_ hT^ ^`MUPN_ _Z _SP NWZ^P^_ ^N]`_TYd(i

(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 g 206:8) (See In re Marriage of Burkle

(2006) 135 Cal.App.4th 1045, 1062, [37 Cal.Rptr.3d 805] [hThe contents of the file of a

divorce proceeOTYR L]P jhistorically and presumptivPWdk L XL__P] ZQ [`MWTN ]PNZ]O(i]).

Such a request to the court is again a blatant attempt by Dawn to chill FNZ__k^ First

Amendment right to speak freely about issues of public significance and public interest.

27

%22)..%05L4 12)0-0+ &3-)*

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 g 152:4).

Case law relateO _Z _ST^ T^^`P T^ OPQTYT_TaP( hCourt 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

]P[`_L_TZY L]P YZ_ _SP ^Z]_ ZQ jPc_]LZ]OTYL]d NT]N`X^_LYNP^k 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.i (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

LYd hOT^[L]LRTYRi >Y_P]YP_ [Z^_^ ]PWL_PO Z] LMZ`_ SP]( %?5 8:22-23). She will find no legal

^`[[Z]_ QZ] SP] ]P\`P^_3 hNo 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

%22)..%05L4 12)0-0+ &3-)*

NZ`]_(i (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.

<TaPY _SP QZ]PRZTYR' 8LbYk^ ]P\`P^_ QZ] []TZ] ]P^_]LTY_ Z]OP]^, standing alone,

should allow Scottk^ 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 ]P^[ZY^TaP OPNWL]L_TZY' ^_L_P^ hPetitioner 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.i

(JA 158:23-24), ignoring and/or recanting on the bZ]O^ TY SP] DP_T_TZYk^ OPNWL]L_TZY,

which state' hI request that he not be allowed to post disparaging comments about me or

post the details of our divorce proceedingsi (JA 8:22-23) (emphasis added). Clearly, the

bZ]O hposti, in the context of her LWWPRPO hPaTOPYNPi, refers to posting on various

Internet websites.

6d QL]' _SP XLUZ]T_d ZQ _SP hPaTOPYNPi []ZQQP]PO Md 8LbY TY ^`[[Z]_ ZQ SP]

Petition, g hPaTOPYNPi LW]PLOd ]`WPO TYLOXT^^TMWP by the Trial Court (RT 5:5-12, 8:18-21),

29

%22)..%05L4 12)0-0+ &3-)*

g consists of Internet posts which she attributes to Scott. (JA 30 g 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 g 135:12).

There are 43 pages of ^`NS [Z^_^ _Z_LW TY 8LbYk^ hPaTOPYNPi LRLTY^_ FNZ__( (JA 30 g 73).

Further, at the hearing on the Anti-SLAPP Special Motion to Strike, Dawnk^

counsel ^_L_PO' hThere 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.i

(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 hpierces the pleadings and requires

an evTOPY_TL]d ^SZbTYR(i Permitting _SP LXPYOXPY_ ZQ L F@5DD [P_T_TZY hwould

_Z_LWWd Q]`^_]L_P _SP @PRT^WL_`]Pk^ ZMUPN_TaP ZQ []ZaTOTYR L \`TNV LYO TYPcpensive

method of unmasking and dismissing such ^`T_^(i %Id., at pp. 1073-1074).

hAllowing 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

%22)..%05L4 12)0-0+ &3-)*

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 another

]P\`P^_ QZ] WPLaP _Z LXPYO(i (Id.)

In the case at bar, Dawn attempted to do exactly that g 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

%22)..%05L4 12)0-0+ &3-)*

1. (7G@LC 2;D>D>A@ *7>?C 1@ 4;F;Bal Distinct Grounds, IncludingConstitutional, Procedural, Substantive, and on Its Merits.

a. Petitioning for Renewal Under Family Code § 6345.

Dawn filed her Petition, g a Request to Renew Restraining Order, g under Family

Code section 6345. FC § 6345 (a) s_L_P^' TY Q`WW' hIn 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.i

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

The Double Jeopardy Clause PXMZOTP^ _S]PP []Z_PN_TZY^3 hIt 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 ofQPY^P(i (North Carolina v. Pearce (1969), 395 U. S. 711,

717).

32

%22)..%05L4 12)0-0+ &3-)*

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

h^SZb _SP ^_L_`_P T^ `YNZY^_T_`_TZYLW TY LWW Z] XZ^_ NL^P^(i %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: hThese

Z]OP]^ XLd MP ]PYPbPO f bT_SZ`_ L ^SZbTYR ZQ LYd Q`]_SP] LM`^P ^TYNP _SP T^^`LYNP ZQ

the original order.i (FC § 6345 (a)).

Assuming arguendo that the penalties imposed by a renewal of an injunction

under FC § 6345 abrogates or significantly limits the enjoined [P]^ZYk^ Q`YOLXPY_LW

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 g 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

%22)..%05L4 12)0-0+ &3-)*

As-Applied Challenge: In contrast, an as-applied constitutional challenge

hNZY_PX[WL_P^ LYLWd^T^ ZQ _SP QLN_^ ZQ L [L]_TN`WL] NL^P Z] NL^P^ _Z OP_P]XTYP _SP

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

L[[WTPO ZQ L []Z_PN_TaP ]TRS_(i %Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1419).

The facts relevant to Double Jeopardy in the case at bar include 8LbYk^ original

injunction against Scott being granted and issued for only three years, even though

Dawnk^ Z]TRTYLW [P_T_TZY asked for a five-year penalty. (JA 4:22-23) . This shows that the

Trial Court in the original case in 2009 QZ`YO _SP hflippant remarksi made by Scott on

the telephone (JA 230:19-25), and the lack of ANY evidence of physical violence by

Scott (JA 83:23 g 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. 8LbYk^ ]PYPbLW ]P\`P^_' TQ R]LY_PO' bZ`WO NZY^_T_`_P MZ_S X`W_T[WP

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

%22)..%05L4 12)0-0+ &3-)*

Family Code § 6345 Penalties Imposed are in Effect Criminal g or g 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, g not criminal, g 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, h[I]f ... the intention was to enact a regulatory scheme that is civil and

nonpunitive, we must further examine whP_SP] _SP ^_L_`_Z]d ^NSPXP T^ jso punitive either

in purpose or effect as to negate [the State's] TY_PY_TZYk _Z OPPX T_ jNTaTW(k i (Smith v. Doe

(2003) 538 U.S. 84, 92 (Smith) (quoting Ward, supra, at p. 249)). Severe penalties have

_SP hPffect as to transfor[m] what was clearly intended as a civil remedy into a criminal

[PYLW_d(i (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

@PRT^WL_`]P TY_PYOPO _Z TX[Z^P [`YT^SXPY_( h>Q _SP TY_PY_TZY ZQ _SP WPRT^WL_`]P bL^ _Z

35

%22)..%05L4 12)0-0+ &3-)*

TX[Z^P [`YT^SXPY_' _SL_ PYO^ _SP TY\`T]d(i %Smith, supra, at p. 92). However, if the

Court determines the Legislature inteYOPO _Z PYLN_ h ja regulatory scheme that is civil and

YZY[`YT_TaP'k then the Court must determine wSP_SP] _SP ^_L_`_Z]d ^NSPXP T^ jso punitive

either in purpose or effect as to YPRL_P J_SP F_L_P$^K TY_PY_TZYk to OPPX T_ jcivilk(i (Ibid.)

(emphasis added). hTo analyze the effects of the statute, the Court should consider

several factors set out in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144.i (Smith,

supra, at p. 97). GSP^P QLN_Z]^' bSTNS L]P hYPT_SP] PcSL`^_TaP YZ] OT^[Z^T_TaP'i TYNWÒP

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, JhPstablishment 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 rightsi LYO h@TVPbT^P' [L]PY_^

have a fundamental liberty interest in the custody, care, management and companionship

ZQ _SPT] NSTWO]PY(i]), and hbhere children are involved, a protective order designed to

prohibit access to an abused spouse may have the collateral effect of limiting the

36

%22)..%05L4 12)0-0+ &3-)*

restrained party's access to his (or her) children even when they are not potential targets

ZQ LM`^P(i (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, [h[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,

WP__P]^' Z] _SP WTVP(iK&4

Right to associate as he chooses (JA 16:Items 6,7,9) (Hoffman Estates v.

Flipside, Hoffman Estates (1982) 455 U.S. 489, 499' Jhperhaps 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

bT_S _SP ]TRS_ ZQ f L^^ZNTL_TZY fi];

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' Jh[P]rior restraints on speech and publication are

the most serious and the least tolerable infringPXPY_ ZY ;T]^_ 5XPYOXPY_ ]TRS_îK).

Without doubt, h[a] protective order imposes costs and penalties on the

restrained partyi %Ritchie, supra, at p. 393). These penalties are harsh when actually

PcLXTYTYR _SP YPRL_TaP PQQPN_ ^`NS LY TYU`YN_TaP Z]OP] bZ`WO NZY_TY`P _Z SLaP ZY FNZ__k^

fundamental constitutional and civil rights.

37

%22)..%05L4 12)0-0+ &3-)*

Taken as a whole, the various restraints Dawn is requesting that the Court again

place on Scott should be viewed as hSTOOPY N`^_ZOdi (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, TQ 8LbYk^ ]PYPbLW 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, [hThe 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.i]

Family Code § 6345 Penalties Inflicted On Scott are Related to Either Multiple

Punishments g or g are Imposed as Part of Multiple Prosecutions: hIn both the multiple

punishment and multiple prosecution contexts, this Court has concluded that where the

two offenses for which the defendant is punishPO Z] _]TPO NLYYZ_ ^`]aTaP _SP j^LXP-

PWPXPY_^k 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).i hThe jsame elementsk test, sometimes ]PQP]]PO _Z L^ _SP jBlockburgerk

38

%22)..%05L4 12)0-0+ &3-)*

test, inquires whether each offense contains an element not contained in the other; if not,

thPd L]P _SP j^LXP ZQQPYNPk and double jeopardy bars additional punishment and

successive prosecution.i %United States v. Dixon (1993), 509 U.S. 688, 696).

c. A Family Code § 6345 Injunction is Legally Infirm, on Its Faceand/or As Applied to Scott, Under the Doctrines of Res Judicataand/or Collateral Estoppel.

hGSP OZN_]TYP JZQ ]P^ UÒTNL_LK SL^ L OZ`MWP L^[PN_' L []TZ] UÒRXPY_ T^ L ML] TY L

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

TY _SP QZ]XP] LN_TZY(i %Lewis v. Superior Court (1978) 77 Cal.App.3d 844, 851).

hAs [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(i (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).

hCollateral 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

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%22)..%05L4 12)0-0+ &3-)*

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.

J7T_L_TZY^(Ki %Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted).

Once the threshold requirements are met, courts consider whether application of

issue []PNW`^TZY bTWW Q`]_SP] _SP [`MWTN [ZWTNTP^ ZQ h[]P^P]aL_TZY ZQ _SP TY_PR]T_d ZQ _SP

judicial system, promotion of judicial economy, and protection of litigants from

harassment by vexatiZ`^ WT_TRL_TZY(i %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)' JhThese orders may be renewed , f 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

%22)..%05L4 12)0-0+ &3-)*

A primary purpose of these common law preclusion doctrines is to encourage

reliance on adjudication. IY _SP []TZ] LOUÒTNL_TZY ZQ 8LbYk^ Z]TRTYLW TYU`YN_TaP [P_T_TZY'

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 19th, 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 g 137:18, 211:27 g 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 8LbYk^ TYU`YN_TaP goals against Scott while respecting his due

process rights. (JA 212:22 g 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 TooFail Because She is Attempting to CHANGE Material Terms ofthe Prior Order.

In Paragraph 6 of 8LbYk^ DV-700 Request to Renew Restraining Order, she asks

the Court QZ] _SP QZWWZbTYR ]PWTPQ3 h> LX L^VTYR _SL_ _SP ALd *1' +))2 Z]OP] MP Pc_PYOPO

an additional five years in that I continue to be apprehensive for my well being and safety

and for the well beinR LYO ^LQP_d ZQ Z`] NSTWO]PY(i (JA 7:8-10). Dawn is asking that

FNZ__k^ OL`RS_P]^ now be included in the injunction when they were specifically excluded

by the Trial Court judge in the original May 18th, 2009 restraining order. (JA 15:Item 2

[Explicit removal of children from the order]).

Further, in PL]LR]L[S *) ZQ 8LbYk^ DV-700, ^SP L^V^ QZ] _SP QZWWZbTYR ]PWTPQ3 h>

request that he not be allowed to post disparaging comments about me or post the details

ZQ Z`] OTaZ]NP []ZNPPOTYR^(i %?5 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

hbPWW Meing and safety of our childreni to include them in the injunction; and 2) further

]P^_]TN_ FNZ__k^ First Amendment rights by prohibiting him from posting constitutionally

protected speech and expression on the Internet. (JA 8:22-23).

42

%22)..%05L4 12)0-0+ &3-)*

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. HowevP]' 8LbYk^ DV-700

and supporting hevidencei NLYYZ_ PaPY MP NZY^TOP]PO TY 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, asThere is Neither Evidentiary Support Nor Persuasive ArgumentsPresented by Her.

CY _SP XP]T_^ ZQ 8LbYk^ DP_T_TZY LWZYP' ^SP 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, hJ>Kf 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

T_^ OT^N]P_TZY( >Y _ST^ NZ`]_k^ aTPb' _SL_ PcP]NT^P ZQ OT^N]P_TZY ]P\`T]P^ LY TY\`T]d MPdZYO

whether the protected party requested a renewal and entertains a subjective desire the

protective Z]OP] NZY_TY`P(i (emphasis added).

43

%22)..%05L4 12)0-0+ &3-)*

hJGKhis does not suggest the trial court need make no finding beyond the

[P_T_TZYTYR [L]_dk^ ^`MUPN_TaP OP^T]P _Z SLaP _SP PcT^_TYR []Z_PN_TaP Z]OP] Pc_PYOPO g in

this case for a lifetime. As Konrad points out, a protective order imposes costs and

penalties on the restrained party g the stigma (which may have practical consequences

for employment and elsewhere in life)i (Id. at p. 393) (emphasis added).

hThe 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 g or as in this instance, permanently g merely because the protected

[L]_d QTWP^ L h]P\`P^_i LYO Pc[]P^^P^ SP] ^`MUPN_TaP OP^T]P _SP court issue such an

Pc_PY^TZY(i %Ibid.)

GSP aL^_ XLUZ]T_d ZQ 8LbYk^ hPaTOPYNPi bL^ ]`WPO TYLOXT^^TMWP( GZ bT_3 hMR.

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.i %EG .3.-12) (emphasis added). Further, Scott, at the same

hearing, reiterated his objections and the court reaffirmed its previously ruling regarding

those objections3 hMR. 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.i %EG 13*1-21) (emphasis added).

In addition, Scott, in his FC § 6345 opposition papers (JA 74 g 115), Anti-SLAPP

moving papers, (JA 118 g 153), and Anti-SLAPP reply pleadings (JA 194 g 368),

44

%22)..%05L4 12)0-0+ &3-)*

NZX[WP_PWd ]PM`__PO LWW ZQ 8LbYk^ LWWPRL_TZY^' L]R`XPY_^' LYO ZaP]NLXP LWW ZQ SP]

hPaTOPYNPi(

Dawn has no reWPaLY_ hPaTOPYNPi _Z ^`[[Z]_ _SP 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

ScZ__k^ ]P[`_L_TZY %?5 223:22-27); 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).

8LbY SP]^PWQ OPNWL]P^ ZYWd _SL_ ^SP T^ hL[[]PSPY^TaPi LMZ`_ SP] bPWW MPTYR %?5

032&( FSP OZP^ YZ_ PaPY OPNWL]P _SP hQPL] ZQ Q`_`]P LM`^Pi' L^ ]P\`T]PO `YOP] the Ritchie

analysis, much less that any such fear was genuine anO ]PL^ZYLMWP( hInstead 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.i %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 g 89:22, 137:26 g 138:10, 220:16 g 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 andUnconstitutional, Given the Alleged Circumstances of the InstantCase.

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 yL]O^ Q]ZX 8LbYk^ person;

16.) stay-away 100 yards from 8LbYk^ aPSTNWP4 17.) stay-away 100 yards from 8LbYk^

%LYO FNZ__k^ OL`RS_P]^k& 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 8LbYk^ SLO LYd ]PL^ZYs to renew the injunctive order to

begin with (of which there wereYk_&' LYO LW^Z L^^`XTYR arguendo that any such

47

%22)..%05L4 12)0-0+ &3-)*

prohibited speech and/or acts bP]PYk_' ZY 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

^Z _SL_ SP bZ`WO YZ_ aTZWL_P _SP h^_Ld-LbLdi []ZaT^TZY^ ZQ _SP ]P\`P^_PO ]P^_]LTYTYR Z]OP](

A court-Z]OP]PO NZYOT_TZY hX`^_ MP ^`QQTNTPY_Wd []PNT^P QZ] _SP [enjoined party] to

know what is required of him, and for the court to determine whether the condition has

been violatedi, if it is to withstand a constitutional challenge on the ground of vagueness.

(In re Sheena K. (2007), 40 Cal.4th 875, 882&( h5 NZYOT_TZY _SL_ TX[Z^P^ WTXT_L_TZY^ ZY

L [P]^ZYk^ NZY^_T_`_TZYLW ]TRS_^ X`^_ NWZ^PWd _LTWZ] _hose limitations to the purpose of the

NZYOT_TZY _Z LaZTO MPTYR TYaLWTOL_PO L^ NZY^_T_`_TZYLWWd ZaP]M]ZLO(i %Ibid. at p. 890).

h jJ7KZYOT_TZY^ _SL_ TX[WTNL_P NZY^_T_`_TZYLW ]TRS_^ X`^_ MP YL]]ZbWd O]LbYk LYO

the knowledge requirement in these circumstances j^SZ`WO YZ_ MP WPQ_ _Z TX[WTNL_TZY(k i

(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 8LbYk^ 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.

8LbYk^ 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 L^^P]_PO TY SP] Z[[Z^T_TZY [L[P]^ _SL_ FNZ__k^ 5Y_T-SLAPP motion was

hQ]TaZWZ`î LYO hXT^R`TOPO(i %?5 164:18, 157:7). She also argued the same in open

court. (RT 30:15-18, [hMR. MOORE %8LbYk^ 7Z`Y^PW&3 Your Honor, which reminds me

of the request for attorney fees based on the denial of the gi]. The Trial Court thusly

]`WPO ZY _SP XL__P]' hI cannot make a finding that the motion was frivolous.i %EG ,)3*.-

18) (emphasis added). Dawnk^ NZ`Y^PW bL^ [P]^T^_PY_3 hMR. MOORE: At this time --

would the Court reserve it?i GSP G]TLW 7Z`]_ ]`WPO LRLTY' hI have to make the finding at

this point in time that it was a frivolous motion. I can't make that finding.i (RT 30:19-

23) (emphasis added).

GSZ`RS 8LbYk^ characterization of an Anti-SLAPP motion L^ hQ]TaZWZ`î 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, ZYWd _STYR hXT^R`TOPOi has

MPPY 8LbYk^ abuse of the court system during their dissolution, while the most

hQ]TaZWZ`î L^[PN_ ZQ _ST^ XL__P] T^ 8LbYk^ DP_T_TZY T_^PWQ for the injunction request at bar.

(JA 198:19 g 199:5).

49

%22)..%05L4 12)0-0+ &3-)*

FNZ__ ^_L_PO L^ QZWWZb^3 hMoving 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.

Constitu_TZY NLY MP NZY^TOP]PO YPT_SP] jXT^R`TOPOk YZ] jQ]TaZWZ`^k, 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.i %?5 199:6-12).

Nor is this appeal Q]ZX _SP G]TLW 7Z`]_k^ OPYTLW ZQ FNZ__k^ 5Y_T-SLAPP motion

frivolous or misguided. Given the constitutional issues argued, the legal technicalities

[]ZMPO' LYO _SP Y`XMP] ZQ T^^`P^ ZQ QT]^_ TX[]P^^TZY _LMWPO' FNZ__k^ [`]^`T_ ZQ ]PO]P^^

should be applauded, not vilified. hBCH9@i + i7E95G>H9i + i>BG9@@><9BGi

legal arguments do not equal L hXT^R`TOPOi LYO hQ]TaZWZ`î 5nti-SLAPP Special

Motion to Strike. If nothing else, FNZ__k^ 5Y_T-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.

hIt 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 g as was true here. We also know this fact influences

how these hearings should be conducted g 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 requesteO [P]XLYPY_ []Z_PN_TaP Z]OP](i (Ross v. Figueroa (2006) 139

Cal.App.4th 856 [43 Cal. Rptr. 3d 289, 291] (Ross))

h 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(i %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 7Z`]_k^

indulgence and understanding in such matters to ensure that he is not, once again,

h]LTW]ZLOPOi Md _SP DWLTY_TQQ LYO 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 childrenk^ ]PWL_TZY^ST[ ( ( .

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

[Z^_TYR ZY _SP >Y_P]YP_ LYO [P_T_TZYTYR QZ] ]PO]P^^ ZQ R]TPaLYNP^( 8LbYk^ Petition is a

meritless SLAPP. FNZ__k^ speech and petitioning activities are protected by the Anti-

SLAPP law g and g his First Amendment rights; _SP ]TRS_^ ZQ bSTNS OPQPL_ 8LbYk^ FC

section 6345 NWLTX( FNZ__ ^SZbPO _SL_ 8LbYk^ DP_T_TZY QLTW^ ZY X`W_T[WP [ZTY_^ ZQ WLb

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 FNZ__k^ 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 _SP G]TLWk^ 7Z`]_k^ OPYTLW ZQ ST^ 5Y_T-SLAPP Special Motion to

Strike and now GRANT his request to dismiss 8LbYk^ DP_T_TZY 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).

///

5252

� � � � � � 0� ��

Dated this 2727thth day of February, 2013 Respectfully submitted,

SCOTT C. KANDEL

By: Scott KandelelIn Propria PersonaFor Appellant/Defendant.

5353

� � � � � � 0� ��

WORD COUNT CERTIFICATION

I hereby certify that the text of this brief consists of 13,46469 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 2727thth day of February, 2013 Respectfully submitted,

SCOTT C. KANDEL

By: Scott KandelIn Propria PersonaFor Appellant/Defendant.

.

Mail. I mailed a copy of the document identified above as follows:

PROOF OF SERVICE(Court of Appeal)

Form Approved for Optional UseJudicial 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 ordelivered 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 collectingand processing correspondence for mailing. On the same day that correspondence is placed forcollection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in asealed 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 beenserved in a proceeding in the Court of Appeal. Please read InformationSheet for Proof of Service (Court of Appeal) (form APP-009-INFO) beforecompleting this form.

PROOF OF SERVICE (Court of Appeal)

Mail Personal Service

FOR COURT USE ONLY

Case Name:

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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)

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Address:

Name:(i)

(ii)

Date mailed:(2)

(a)

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Documents

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