illllllrlllJlrllllllllllllllllllU
CA4DG031636-02
{79B41888-2478-4155-8132-AD1D03D2885F}
{43299} {32-040106:105102}
{100903}
RESPONDENT'S
BRIEF
Appeal
Number
G031636
IN THE COURT
OF APPEAL
OF THE STATE
OF
CALIFORNIA
FOURTH
BALBOA
APPELLATE
DISTRICT
DIVISION
THREE
ISLAND
Plaintiff
VILLAGE
INN, INC.,
and Respondent,
V,
ANNE
LEMEN
Defendant
Appeal
aka ANNE LEMON,
and Appellant.
from Orange County Superior Court, State of California
Honorable
Gerald G. Johnston
Orange
County
Superior
Court Case No. 01CC13243
RESPONDENTS'
DUBIA,
BRIEF
ERICKSON,
TENERELLI
& RUSSO,
J. SCOTT RUSSO, Bar No. 155631
2 Park Plaza, Suite 300
Irvine, California 92614-8513
(949) 955-1177
Attorneys for Plaintiff and Respondent
BALBOA
ISLAND VILLAGE INN, INC.
LLP
Appeal Number G031636
IN THE COURT
FOURTH
BALBOA
OF APPEAL
OF THE
CALIFORNIA
STATE
OF
APPELLATE
DISTRICT
DIVISION
THREE
ISLAND
Plaintiff
VILLAGE
INN, INC.,
and Respondent,
V.
ANNE
LEMEN
Defendant
Appeal
aka ANNE
LEMON,
and Appellant.
from Orange County Superior Court, State of California
Honorable
Gerald G. Johnston
Orange
County
Superior
Court Case No. 01CC 13243
RESPONDENTS'
DUBIA,
BRIEF
ERICKSON,
TENERELLI
& RUSSO,
J. SCOTT RUSSO, Bar No. 155631
2 Park Plaza, Suite 300
Irvine, California 92614-8513
(949) 955-1177
Attorneys
for Plaintiff and Respondent
BALBOA
ISLAND VILLAGE
INN, INC.
LLP
TABLE
OF CONTENTS
Page No.
TABLE
I.
OF AUTHORITIES
INTRODUCTION
A.
..........................................................
.......................................................................
Contentions
II.
STATEMENT
IlL
STANDARD
IV.
LEGAL
iii, iv
.............................................................
OF FACTS
.........................................................
OF APPELLATE
DISCUSSION
1
REVIEW
................................
3
4
8
...............................................................
9
A.
There Was Substantial
Evidence Upon
Which Judge Johnston Ruled That BIVI
Proved Its Claims .............................................................
9
1.
BIVI's
causes
of action ..................................
9
...............................................
9
9
a.
Nuisance
b.
Defamation
...........................................
c.
Interference
with business
..................
10
B.
The Permanent
Injunction Was Not An
Abuse Of Discretion .......................................................
11
C.
Lemen's First Amendment
Challenge
To The Injunction Lacks Merit ......................................
11
D.
Judge Johnston Narrowly And Properly
Tailored The Injunction
With Respect To Lemen's
Photo Activities And Contacts To Balance Her
Alleged Needs And The Damage To The
Village Inn ......................................................................
16
TABLE
OF CONTENTS
(Continued)
Page No.
V.
BIVI SHOULD
APPEAL
VI.
ITS COSTS
ON
....................................................................................
CONCLUSION
CERTIFICATE
BE AWARDED
.........................................................................
OF WORD
COUNT .................................................
ii
17
18
19
TABLE
OF AUTHORITIES
Page No.
FEDERAL
CASES
Lothshuetz
v. Carpenter (6th Cir. 1990)
898 F.2d 1200 ...........................................................................
14
San Antonio Hospital
(gth Cir. 1997)
14
CALIFORNIA
v. So. Cal. Council of Carpenters
125 F.3d 1230 ..................................................
CASES
Advanced
Training System v. Caswell Equipment
Co.
(Minn. 1984) 352 N.W.2d 1 ..............................
: ......................
Aguilar
v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121 ................................................
i........ 12, 13, 14, 15
Green Trees Enterprises,
Inc. v. Palm Springs Alpine Estates,
Inc. (1967)
66 Cal.2d 782 ..............................................................................
L.A.
Brick Etc. Co. v. City of Los Angeles (1943)
60 Cal.App.2d
478 ....................................................................
O'Brien
v. University
Community
Tenants Union, Inc. (1975)
42 Ohio St.2d 242 .....................................................................
San Diego Gas & Electric Co. v. Superior
13 Cal.4th 893 .......................................
Court (1996)
_.....................................
San Diego Union v. City Council (1983)
146 Cal.App.3d
947 ....................................................................
Shapiro
v. San Diego
96 Cal.App.4th
City Council
14
8
16
14
9
8
(2002)
904 .....................................................................
°°,
111
8
TABLE
OF AUTHORITIES
(Continued)
Page No.
CALIFORNIA
.Uptown
CASES
Enterprises
v. Strand (1961)
195 Cal.App.2d
45 .........................................
Walker
v. Kiousis
:..........................
1432 .................................................................
v. Superior Court of Los Angeles (1975)
13 Cal.3d 652 ......................................................................
MISCELLANEOUS
5 Witldn,
Summary
Torts,
B.A.LI.
17
(2001)
93 Cal.App.4th
Wilson
(Cont.)
16
15, 16
AUTHORITIES
of California
Law,
§ 476 (Supp. 2003) .........................................................
10
7.00 - 7.03 ..............................................................................
10
California
Civil Code § 3422 ..........................................................
3, 11
California
Code of Civil Procedure
California
Rules of Court, Rule 26(a) .................................................
§ 731 ..........................................
iv
16
18
Ie
INTRODUCTION
After a five day court trial and the testimony
witnesses,
Plaintiff/Respondent
("BIVI"),
owner
was granted
of The Balboa
judgment
Defendant/Appellant,
specific
and accosting
Island
Island
of action
defamatory
injunction
statements
Inn")
against
BIVI was granted
to prohibit
regarding
Inn's employees
Inn, Inc.
Inn ("The Village
Lemer_ ("Lemen").
a permanent
The Village
Village
Village
on its four causes
Anne
only relief it sought,
making
Balboa
of 25
Lemen
the
from
the The Village
and customers
Inn
verbally
and with her cameras.
Despite
about suppression
Herculean
of petition
BIVI did not contest
gather
support
authorities.
Lemen's
against
rights,
legitimate
The Village
Lemen's
Gerald
denials,
•
by Lemen
to make
free speech
and public
efforts
this a case
debate,
to speak out and
Inn or even her [false] reports
What BIVI challenged,
to and the Honorable
despite
efforts
and which
D. Johnston
17 witnesses
to
testified
found to have been proved
was that Lemen:
Canvassed
Balboa
told the residents,
that The Village
Island
on a petition
The Village
Inn:
o
Sold drugs
o
Sold alcohol
o
Had child pom;
o
Was making
o
Had lesbian
o
Was open until 6:00 a.m.
to minors;
sex videos;
love acts;
drive and
Inn's customer
base,
o Had prostitution;
o Was owned by the Mafia; and
o Served tainted food.
All of which was untrue.
•
Confronted
The Village
employees
Inn's customers
and
as they went in and out of the Village
Inn and:
•
Called
them "whores";
Called
them "Satan";
Called
them "drunks";
Called
them "Mexicans".
Followed,
and even chased,
video camera
•
and
customers
with a
from and to their cars;
Spent days, nights,
weekdays
standing
in front of the entrance
or parked
Village
and weekends
Inn with a video camera
videoing
the customers
in plain
and visibly
to The
site
upsetting
them;
and
•
Took flash photos
windows
night
campaign
in an incalculable
owners
Balboa
further
was greatly
proved
harming
the
and Saturday
the customers.
that Lemen's
defamation
The Village
the 17 witnesses
Island
and lawyers,
residents
Lemen's
who testified
who were retirees,
immediate
2
neighbors,
and
Inn's business
amount.
Despite
including
through
and doors every Thursday
for a year, upsetting
The evidence
harassment
of the customers
for BIVI,
local business
and The Village
Inn's employees and management, Lemen testified that not one of the
above matters occurred. Judge Johnston found BIVI's contentions to
be proven based on the credibility of the witnesses. ["Defendant
denied
most of the activity
the Court is convinced
the many witnesses
the statements
and statements
by a preponderance
called
attributed
previously
described."
Johnston's
factual
to testify,
(Statement
September
rather
overwhelming
12, 200f,
continue
proved
Johnston's
A.
proved
not just by substantial
but
against
for injunctive
carefully
to prohibit
the specific
defamatory
contacts,
and specific
photo
Lemen
The Village
was certainly
plenty
and
of room to
Inn without
violating
not an abuse of Judge
discretion.
Contentions.
Judge Johnston's
claims
evidence;
2.
The Statement
Transcript.
Transcript
of Decision
Judge Johnston
at trial, leaving
The injunction
BIVI's
substantial
3422.
at trial, specific
1.
support
did make
p. 5.) Judge
fit within the parameters
injunction
in her campaign
the injunction.
on
evidence.
a very specific
video harassment
based
in the other conduct
of Decision,
are supported
relief under Civil Code Section
statements
However,
that, in fact, Defendant
set forth in his Statement
The facts squarely
crafted
to her.
of the evidence
to her and engaged
findings,
dated
attributed
has
and injunctive
findings
of fact necessary
relief are supported
to
by
and
The permanent
of Decision
injunction
was somehow
issued by Judge
not included
BIVI has filed a Motion to Augment
to add the Statement of Decision.
in the Clerk's
the Clerk's
Johnston was not an abuse of his discretion.
II.
STATEMENT
Since
Avenue
on Balboa
property
called
Transcript
1989, Lemen
has owned
Island
she operates
("C.T."),
The Lemen
the 1930's and located
Property
the Lemen
over noise issues.
8.) Lemen
Village
Property
at 127 Marine
Property
across
the alley from
purchased
who had been
the 1980's over noise.
during
a much
has since been on a personal
in
the
at battle
Lemen
publicized
legal fight
p. 18, ln. 12 -p.
13-year
Lemen 2,
and bar opened
Lemen
a couple
(Clerk's
('R.T."),
restaurant
Avenue.
vacation
Property").
Transcript
(C.T., p. 34; R.T. Lemen,
crusade
19, In.
against
The
Inn.
In November
purchased
The Village
234, Ins. 11-25.)
2000, BIVI,
Inn from Lance
When Mr. Wagner
owned by the Toll family,
Wagner.
owned
Lemen,
and restaurant
to move the bar and entertainment
away from the Lemen
a brief reprieve.
selling
he had the interior
Property.
Mr. Wagner
The Village
reconfigured
Mr. Wagner's
threatened
Inn to BIVI.
(R.T. Aric Toll, p.
The Village
accommodate
before
at 1305 Park
as a 2-unit
is located
Inn, a landmark
Inn throughout
the property
(the "Lemen
Reporter's
from the Packards,
with The Village
purchased
Cottage"
pp. 32-33;
the back of The Village
Lemen
which
the "Island
p. 12, Ins. 6-22.)
OF FACTS
Inn, to
to flip the bar
to the area farthest
efforts
litigation
only resulted
against
(R.T. Lance
Lemen
Wagner,
p. 124,
In. 15 - p. 125, In. 25; p. 132, Ins. 10-26.)
2 For the Court' of Appeal's
is being
convenience,
cited will be identified.
4
the person
whose
in
testimony
Since BIVI acquired The Village Inn, Lemen's crusade
against The Village Inn escaladed to the point where The Village
could not put up with Lemen's
any longer.
of, and which
The specific
conduct
the witnesses
•
conduct
and the damage
which
The Village
at trial testified
Lemen
spent
weekends
entrance
site videoing
upsetting
them.
Inn complained
weekdays
or parked
to The Village
in plain
to the business
to, was the following:
days, nights,
standing
Inn
and
in front
of the
Inn with a video camera
the customers
and visibly
(R.T. Carol O'DonneI,
p. 89, 111.
11-15; p. 90, ln. 5 - p. 91, ln. 4; Ewa Cook, p. 104,
ln. 23 - p. 105, ln. 16; p. 107, ln. 1 - p. 108, In. 10;
Kelly Wildman,
p. 144, ln. 19 - p. 145, In. 18; p.
147, In. 9 - p. 147, ln. 19; p. 147, ln. 23 - p. 149, In.
26; p. 150, ln. 21 - p. 151, ln. 25; Arturo
159, lns. 6-8; Paul Ankenman,
Perez, p.
p. 172, ln. 21 - p.
173, ln. 20; p. 174, lns. 10-25; Daniel
Fagas,
p.
183, ln. 2 - p. 184, In. 21; p. 187, lns. 6-17; Aric
Toll, p. 246, ln. t6 - p. 248, In. 24.)
•
Lemen
took flash
through
photos
the windows
and Saturday
customers
night
of the customers
and doors every
for a year,
upsetting
Thursday
the
(R.T. Ewa Cook, p. 105, 111.12 - p. 106,
ln. 19; Aric Toll, p. 254, ln. 19 -p. 255, In. 17)
and took photos
Felipe
•
Lemen
Anaya,
of employees
changing.
(R.T.
p. 205, ins. 20-25.)
confronted
and even chased
customers
and employees entering
or leaving
Inn (R.T. Paul Ankenman,
The Village
p. 175, Ins. 7-22; Aric
Toll, p. 242, Ins. 15 - p. 243, ln. 3), calling
"whores"
Thresa
(R.T. Carol O'Dormell,
them
p. 89, Ins. 2-23;
Toll, p. 196, In. 17 - p. 197, In. 1),
"drunks"
(R.T. Carol O'Donnell,
Paul Ankenman,
p. 91, Ins. 8-22;
p. 176, in. 9-22),
"satan"
(R.T.
Ewa Cook, p. 117, ln. 22 - p. 118, ln. 1; Kelly
Wildman,
p. 147, In. 23 - p. 149, In. 26; p. 151, In.
26 - p. 152, ln. 10), "Mexicans"
(R.T. Felipe
Anaya,
them
p. 205, Ins. 1-13), asking
"greeneards"
(R.T. Armro
Perez,
158, In. 15), used profanity
for
p. 157, In. 21 -
(R.T. Jason
Evers,
p.
164, ln. 21 - p. 166, In. 21; Aric Toll, p. 241, In. 25
- p. 242, In. 11; p. 244, In. 24 - p. 245, In. 8; p. 246,
In. 16 - p. 248, ln. 24), and said the food was
tainted
(C.R., P. 93; R.T. Lance
Wagner,
p. 129,
ln. 19- p. 130, In. 11).
Lemen
Island
went door-to-door
with a petition
and told residents
against
that
o
Is a "whorehonse
o
Is "making
o
"Sells
drugs";
o
"Sells
alcohol
o
Has "child
o
Has "lesbian
6
throughout
Balboa
The Village
The Village
Inn:
with prostitution";
sex videos";
to minors";
porn";
love acts";
and
Inn
o Is open until 6:00 a.m.
(R.T. Kirby Gault, p. 210, ln. 1 -p. 214, ln. 26;
Darren
Friend,
(from August
p. 224, ln. 16 - p. 228, ln. 8; R.T.
26, 2002) Patricia
p. 6, ln. 18; Gale Bensussen,
Hitt, p. 5, ln. 15 -
p. 12, ln. 22 - p. 15,
in. 20.)
None
about The Village
of the defamatory
Inn were true.
254, ln. 18.) Lemen's
Inn's business
calculable.
original
Complaint
heating
before
to a change
although
and trial, The Village
Beach
to its entertainment
Inn participated
Department
the Planning
The Village
permit.
are not
Lemen
spearheaded,
to The Village
town hall meeting.
but what were the petition
appeal,
Lemen
with representatives
through
her petition
signers told?
to stop her firom her political
activities.
with respect
Inn
from the
campaign,
the
and the
over 400 petitions
At trial and now on
Inn's motive
for this lawsuit
This is not true and is not
or any of the evidence
7
a public
over alleged
Commission
in getting
of the
trial, The Village
("ABC")
that The Village
by the pleadings
before
Control
succeeded
signed,
argues
Commission
Inn at the Planning
Lemen
the filing
After The Village
Commission,
Beverage
between
Inn went through
Planning
in a town hall meeting
of Alcoholic
disturbances.
supported
caused
the actual damages
this action was pending,
the Newport
before
opposition
and defamation
(R.T. Aric Toll, p. 255, ln. 26 - p. 261, ln. 17.)
While
prevailed
made by Lemen
(R.T. Aric To11, p. 253, 111.17 - p.
harassment
to suffer greatly,
statements
at trial.
is
III.
STANDARD
OF APPELLATE
REVIEW
The trial court's decision
to grant a p.ermanent
injunction
rests within its sound discretion
ani:l will not
be disturbed on appeal absent a showing of a clear abuse
of discretion.
Sdn Diego Union v. Ci_ Council (1983)
146 Cal.App.3d
947, 952 [196 Cal.Rptr.
45].)
Such
continuing
relief by injunction
operates
in the future.
(Ibid.)
P_ reviewing
court will exercise its independent
judgment
when it is required
to interpret
and apply a
statute where the underIying
facts are not in dispute.
(Ibid.)
However, to the extent the trial court had to review
the evidence to resolve disputed factual issues, and draw
inferences
from the presented facts, an appellate court
will review such factual findings under a substantial
evidence standard.
Our power In this regard "begins and
ends" with the determination
as to whettier there is any
substantial
evidence, contradicted
or uncontradicted,
which will' support the finding of fact. [Citations.]
[¶...
_When two or more inferences can reasgnably be ffeduced
trom the facts, a reviewing court is w!tlaout power to
substitute its deductions t0r those of the trial court.
_GstareenTrees Enterprises,
Inc. v. Palm Springs Alpine
tes, Inc. (1967) 66 Cal.2d 782, 784-7851-59
Cal.Rptr.
141, 427 P.2d 805].)t_Shapiro
v. San Diego City Council
(2002) 96 Cal.App.4
904, 912.
As evidenced
Johnston
made
exercised
his sound discretion
the circumstances.
be reviewed
findings
by the Statement
of fact based on disputed
Therefore,
by the "substantial
will be reviewed
of Decision,
by the "abuse
to narrowly
evidence
and then
tailor an injunction
Judge Johnston's
evidence"'
Judge
findings
standard
of discretion"
to fit
of fact will
and the injunction
standard.
IV.
LEGAL
A.
Johnston
There
Ruled
DISCUSSION
Was Substantial
That BM
1.
BIVI's
Proved
causes
a.
Evidence
Upon
of action.
Nuisance.
to prove:
property,
namely
interfered
with BIVI's
interest;
San Diego
at 127 Marine
private
was substantial
caused
Co. v. Superior
(2) Lemen
of its property
and unreasonable;
BIVI to suffer injury,
Gas & Electric
BIVI
in real
Avenue;
use and enjoyment
interference
and (4) the interference
harm.
for nuisance,
(1) It is the owner of an interest
real property
(3) Lemen's
Judge
Its Claims.
In order to prove its cause of action
was required
Which
damage,
loss or
Cottrt (1996)
13
Cal.4 th 893,937-939.
Judge
substantial
customers
verbal
Johnston's
and unreasonable
and employees
abuse of customers
use and enjoyment
substantial
supported
evidence.
through
her video
and photo campaign,
supported
with BIVI's
by
loss or harm was also
is an invasion
of the interest
from libel or slander"...
publication
made
charges
[or]...
a party in respect
to injure
in reputation
"Slander
orally either in person...
or by any other means which:
directly
and
evidence.
or legal entity resulting
tends
Inn's
Defamation.
"Defamation
a false and unprivileged
Lemen's
thus interfering
is certainly
damages,
regarding
of The Village
and employees,
BIVI's
by substantial
findings
harassment
of its property,
b.
a person
factual
any person
with a crime....
to that person's
of
is
office, profession, trade or business..,
by imputing something with
reference to the business that has a natural
profits."
Torts,
B.A.J.I.
7.00 - 7.03; 5 Witkin,
§ 476 (Supp.
Judge
statements
prostitution,
profits,
Johnston's
factual
certainly
etc.) which
findings
to whom
imputed
Lemen
has a tendency
regarding
Law,
Lemen's
by substantial
something
and there was substantial
reduced
its
Summary_ of California
were supported
of the persons
The statements
to lessen
2003).
to third persons
the testimony
tendency
made the statements.
(selling
to lessen
evidence
evidence,
drugs, porn,
The Village
that the profits
Inn's
were in fact
as a result of the defamation.
c.
Interference
with
business.
In order to prove its cause of action
business
[Intentional
Advantage],
Interference
BIVI was required
• relationship
existed between
contacted,
containing
Inn; (2) Lemen
Lemen
intentionally
interfere
wrongful
relationship
defamatory
customers,
the elements
The Village
engaged
in wrongful
interfered
caused
damage
Judge
Johnston's
statements
Inn and the persons
factual
to The Village
of the Intentional
benefit
to The
of the relationship;
conduct
to interfere
designed
(3)
to
findings
with or disrupt
regarding
Inn's customers
Interference
and (5) Lemen's
this
Inn.
of and driving
10
Lemen
(4) the economic
to The Village
and her intimidation
Business
with or disrupted;
which was designed
with
(1) an economic
future economic
this relationship;
was actually
conduct
to prove:
knew of the existence
with or disrupt
relationship
with Prospective
a probable
Village
for interference
Lemen's
and probable
off customers,
with Prospective
satisfies
Business
Advantage cause of action and was supported by substantial evidence,
the testimony of many witnesses.
B.
The Permanent
Injunction
Was Not An Abuse
of
Discretion.
Civil Code Section
injunction
may be granted:
1.
Where pecuniary
adequate
2.
Where
adequate
3.
of compensation
Where
could have afforded
the restraint
conduct
is repeated
Section
proceedings;
relief.
to prevent
a
or
arises from a trust.
compensation
However,
possibly
it would have been
the amount
of compensation
which
relief to BIVI under the circumstances.
of Lemen
and ongoing
of judicial
circumstances
to ascertain
would afford
is necessary
case, pecuniary
to ascertain
adequate
Further,
difficult
which
the obligation
adequate
or impossible
multiplicity
the restraint
of judicial
In the present
afford
not afford
relief;
multiplicity
would
would
it would be extremely
Where
4.
compensation
relief;
the amount
difficult
3422 states that a permanent
is absolutely
and, unless
proceedings.
fall squarely
necessary
because
restrained,
Accordingly,
within the parameters
her
will require
the present
of Civil Code
3422.
C.
Injunction
Lemen's
Lacks
Lemen
prohibiting
First Amendment
Challenge
To The
Merit.
challenges
her from publishing
Judge Johnston's
nine specific
11
permanent
statements
injunction
found by
a
Judge Johnston to be defamatory. Lemen argues that the injunction
constitutes an unconstitutional prior restraint on free speech, violating
both the United States Constitution and California Constitution.
However, the injunction is constitutional and well within Judge
Johnston's sound discretion.
A 1999 decision by the California Supreme Court directs
the outcome here. In Aguilar
v. Avis Rent A Car System,
21 Cal.4 th 121, Avis employees
discrimination,
epithets.
in part based
Id. at 126-127.
in acts of harassment
consider
plaintiffs'
damages,
injunction:
using
request
any derogatory
descriptive
on a supervisor's
John Lawrence
directed
epithets
specifying
by Lawrence'
Supreme
Court,
by the Court of Appeal,
constituted
freedom
Id. at 129.
of expression.
and also required
derogatory
Id. Lawrence
racial
that it
or ethnic
warn Lawrence
sought
an improper
the
used in the
that the injunction,
12
at, or
the trial court to redraft
such as those actually
arguing
to
Id. at 128.
in order to 'more precisely
and Avis what is forbidden'."
In addition
as long as he is employed
to limit its scope to the workplace,
epithets,
was held to
shall cease and desist from
ordered
list of prohibited
had
the following
Inc., in California..."
"add 'an exemplary
California
issued
employees,
The Court of Appeal
workplace
a hearing
Id. at 127.
racial or ethnic epithets
of, Hispanic/Latino
use of racial
that defendant
for an injunction.
by Avis Rent A Car System,
injunction
repeated
or discrimination,
the trial court further
"Defendant
of employment
After the jury found
engaged
awarding
complained
Inc. (1999)
review
by the
even as limited
prior restraint
on the
In a plurality opinion, the Supreme Court dismissed this
challenge: "Under well-established law..,
the injunction at issue is
not an invalid prior restraint, because the order was issued only after
the jury determined that the defendants had engaged in employment
discrimination,
and the order simply precluded defendants from
continuing their unlawful activity."
Id. at 138. The Supreme Court
then discussed several United States Supreme Court decisions
supporting its conclusion. Id. at 138-140. After summarizing the
decisions, the Supreme Court concluded that "once a court has found
that a specific pattern of speech is unlawful,
prohibiting
practice
the repetition,
is not a prohibited
For this reason,
expression;
and an injunction
the injunction
did not violate
on free expression.
could constitute
employment
constitutionally
enjoined.
the California
on
of repetitive
speech
continued
rights.
the Supreme
over whether
violation
of
Id. at 140-141.
Court likewise
held that
Constitution's
protections
Id., passim.
Kennard
acknowledged
that no heightened
ofproscribable
speech--"obscenity,
overall
scrutiny
charged
speech
Kennard's
constitutes
is required
be
would
defamation.
with the plurality,
defamation,
13
the split among
and then additionally
But Justice
involved
disagreed
opinion,
racially
discrimination,
when the speech
Justice
preventing
A__.guilaris a plurality
was principally
• join the majority
Id. at 138-140.
Id. at 144-145.
Although
the Justices
of that
of speech.
course
First Amendment
the same reasoning,
order
was also not a prior restraint
it was based on a continuing
the law did not violate
Applying
or continuation
"prior restraint"
the injunction
- that was unlawful,
Although
perpetuation,
an injunctive
when
she
categories
and 'fighting
words'"--are
involved.
Id. at p. 183-184 (Dis. Opn. ofKermard,
J.)
(emphasis added). Justice Kennard further acknowledged that some
courts might issue a permanent injunction prohibiting
someone from
again publishing "the very same defamatory statement" found to be
defamatory after a full and fair trial. Id. at p. 187 (Dis. Opn. of
Kennard, J.) Justice Kennard only suggests that it would be
impermissible for a court to issue a much broader injunction in such a
case, additionally prohibiting other statements that might be
defamatory. Thus, a majority of the California Supreme Court would
agree that it is permissible to issue a permanent injunction prohibiting
future publications of statements when the same statements were
already found to be defamatory after a full and fair hearing. 3
Lemen
nuisance
had a full adversarial
and interference
After full presentation
Lemen.
only the following
,,
3 The plurality
with business
of the evidence,
Judge Johnston's
injunction
defamatory
Plaintiff
hearing
asserted
Judge Johnston
prohibits
statements
sells alcohol
cites a number
claims
on the defamation,
Lemen
against
found
her.
against
from making
to third persons:
to minors;
of decisions
that are in accord
with this
rule. Id. at p. 141-142 n.8; San Antonio Hosp. v. So. Cal. Council
Carpenters (9 th Cir. 1997) 125 F.3d 1230, 1239 [upholding
preliminary
fraudulent
injunction
statement];
against displaying sign near hospital with
Lothshuetz
v. Carpenter
(6 th Cir. 1990) 898
F.2d 1200, 1208, [directing entry of injunction to prohibit repetition
same defamatory
statements];
O'Brien v. University
Community
Tenants Union, Inc. (1975) 42 Ohio St.2d 242, 245 [after speech if
found to be defamatory,
an injunction prohibiting
that same speech
may be proper]; Advanced
Training Svs. v. Caswell Equip. Co.
(Minn.
against
of
1984) 352 N.W.2d
statements
already
1, 11 [permanent
injunction permissible
found to be defamatory
after a full trial].
14
of
•
Plaintiff
stays open until 6:00 a.m.;
•
Plaintiff
makes
•
Plaintiff
is involved
•
Plaintiff
distributes
•
Plaintiff
has mafia connections;
•
Plaintiff
encourages
lesbian
•
Plaintiff
participates
in prostitution
whorehouse;
•
(Statement
Plaintiff
Angeles
(1975)
First, Wilson
stricter
permanent
is subject
preliminary
injunction
statements
"substantially
to Wilson
a preliminary
concerning
was extraordinarily
similar"
statements
be fair, balanced,
facts.
Id. at 658.
The permanent
public
importance.
to
a
found to be
Second,
broad,
is subject
above,
already
and provide
injunction
defamation
of a public
I dd.at 659.
which
Wilson's
prohibiting
and additionally
defamatory
a context
for at least three reasons.
to those the trial court believed
nine specific
office,
decision.
Court of Los
As discussed
analysis.
C.T., p. 116,
by the __guilar
injunction,
statements
to a different
future
with alleged
Judgment,
v. Superior
652 is unavailing
would be found to be defamatory,
prohibiting
and acts of a
food.
as a "prior restraint."
defamatory
activities;
what is permitted
citation
13 Cal.3d
injunction
drugs;
pp. 7-8.; Amended
addressed
scrutiny
illegal
and
This is exactly
Lemen's
in child pornography;
serves tainted
of Decision,
lns. 19-23.)
sex videos;
requiring
full presentation
here is extremely
statements.
figure
during
to which the court attached
The Wilson
15
that
of
narrow,
Third, Wilson
dealt
his candidacy
for
particular
court in fact distinguished
much
of the respondent's cited authority because it did not address criticism
of public officials.
Id.
Lemen's
Cal.App.4
Lemen
citation
th 1432 is likewise
quotes
on speech,
the general
Walker
defamation,
and fighting
illustrates,
among
others,
the "the nature
377, 393, 112 S.Ct. 2538,
As discussed
merits.
by Lemen
defamatory
"official
Judge
statements
suppression
Johnston's
R.A.V.v.
be
if,
is such
suppression
St. Paul (1992)
As
of ideas is
505 U.S.
2549).
above, Judge
enjoined
Johnston
found certain
after a full and fair trial on the
Lemen
in the future.
from making
those
There is no suggestion
of ideas is afoot,"
decision
--
Id. at 1449.
discrimination
that official
to be defamatory
Judge Johnston
of speech
may be regulated
of the content
possibility
proscriptions
-- "can constitutionally
in these categories
Id. at p. 1450 (quoting
statements
words
93
Although
content-based
the First Amendment."
speech
that there is no realistic
(2001)
to her position.
rule regarding
notwithstanding
Walker
unhelpful
v. Kiousis
also notes that three categories
obscenity,
proscribed
afoot."
to Walker
exact
that
and thus Walker. supports
to enter a permanent
injunction
against
Lemen.
D.
Judge
Injunction
Contacts
Village
Johnston
With Respect
To Balance
Narrowly
To Lemen's
Her Alleged
And Properly
Tailored
Photo Activities
Needs
And
And The Damage
To The
Inn.
An injunction
nuisance.
Cal.App.2d
is the traditional
method
of abating
L.A. Brick Etc. Co. v. Citg of Los Angeles
478,486;
see also. Code of Civil Procedure
16
The
(1943)
§ 731
a
60
(authorizing injunction to abate nuisance). Injunctions are also
available to restraint
interference
acts of harassment
Uptown
Enters.
against
a business
v. Strand
(1961)
The injunction
•
initiating
except
•
through
50-51.
prohibits
her from:
Inn's employees,
Inn's management;
by video camera
Inn's property
disturbance
to her property.
Johnston
narrowly
her "documentary
less with The Village
tailored
unless
intimidating
Lemen
(an immediate
Lemen
disturbance
has no reason
she has a problem
certainly
or damage),
to contact
or complaint,
with and the telephone
injunction
Inn's customers,
number
is permissible
and
Inn unless
and
and, in the extreme
the prohibition
The Village
that
can video
This will be far less uncomfortable
to The Village
to permit
in a manner
photo 24 hours a day, but not within 25 feet of The Village
on her own property.
on her
an immediate
the injunction
campaign"
Inn's business.
and
or still photography)
she is documenting
or damage
including
and its patrons.
own property, or unless
to continue
interferes
The Village
25 feet of The Village
Judge
Lemen
Lemen
with The Village
(whether
within
operator
relations,
195 Cal.App.2d.45,
against
contact
filming
with economic
case
does not apply.
Inn's employees,
but if
she has the ability to communicate
of The Village
Inn's management.
The
and is not an abuse of discretion
under the circumstances.
V.
BIVI SHOULD
BE AWARDED
As a general
entitled
to recover
ITS COSTS
rule, the party who prevails
its costs on appeal
17
as an incident
ON APPEAL
on appeal
is
to the judgment
on appeal. BIVI is the prevailing party entitled to costs following
affirmance of the appealed judgment.
an
California Rules of Court, Rule
26(a)(1). BIVI therefore requests that the Court of Appeal, in
affirming the trial court's Judgment, provide that BIVI shall be
awarded its costs on appeal.
VI.
CONCLUSION
For the foregoing
should
DATED:
be affirmed
October
reasons,
the trial court's
and BIVI should be awarded
_.,
Judgment
its costs
on appeal.
2003
DUBIA, ERICKSON,
& RUSSO, LLP
By:
(f'_orneys
TENERELLI
for Plaintiff
and
esponaent
BALBOA
_ISeI_AND VILLAGE
INN, INC.
18
CERTIFICATE
I, J. Scott Russo,
contains
Microsoft
4,118
words,
certify
Brief,
I declare
State of California
except
in the Properties
program
section
Brief
of the
used to count the words
of
for this Certificate.
under penalty
that the foregoing
was executed
COUNT
that this Respondents'
as contained
Word 2000 processing
this Respondents'
Certificate
OF WORD
of perjury
under the laws of the
is true and correct
this 9 th day of October,
2003, at Irvine,
California.
(,
J.(/{fF
_yj,_._OTT
19
and that this
RUSSO
PROOF
OF SERVICE
(CCP § I 013A(3)
STATE
OF CALIFORNIA,
COUNTY
Revised)
OF ORANGE
I am employed
in the above County, State of California.
I am over the age of 18 and not a
party to the within action.
My business address is 2 Park Plaza, Suite 300, Irvine, California
92614.
On October
9, 2003, I served the foregoing
BRIEF
on the interested
parties in this action in the manner
the attached service/mailing
list:
[XXX]
by placing
a true copy thereof enclosed
in a sealed envelope
parties as indicated
on the attached service/mailing
list.
] byplacing
following
[XXX]
document
indicated
[ ] the original
interested
parties:
[
] a true copy
thereof
in a sealed
described
as: RESPONDENT'S
below and as fttrther indicated
addressed
envelope
to each
addressed
on
of the interested
to each
of the
BY MAIL
I deposited
such envelope
in the mail at Irvine, California.
The envelope
was
mailed with postage
thereon fully prepaid.
I am aware that on motion of party served, service is
presumed
invalid if postal cancellation
date or postage
meter date is more than one (1) day after
date of deposit for mailing in affidavit.
Executed
on October
9, 2003, at Irvine, California.
]BY PERSONAL
SERVICE
indicated
on the attached
California.
[
] BY TELECOPIER
[
] BY OVERNIGHT
I caused such
serfice/mailing
envelope
to be personally
list.
Executed
on
delivered
I forwarded
the above document
via telecopier
parties to the telecopier
numbers
noted on the attached
service/mailing
was completed,
without
error or interruption.
Executed
on
California.
to the addressee
, at Irvine,
to the above interested
list. Each transmission
., at Irvine,
DELIVERY:
I am readily
familiar
with Dubia,
Erickson,
Tenerelli
&
Russo,
LLP's practice
for collection
and processing
of correspondence
for overnight
delivery
with Overnite
Express.
Pursuant
to such practice,
all correspondence
is deposited
in a regularly
maintained
box or delivered
to any authorized
Ovemite
Express
courier in the ordinary
course of
business
on the date it is generated.
I know that the envelope
was sealed, and with delivery
fees
thereon fully prepaid,
placed for collection
on this date, following
ordinary
business practices
in
the United States, at Irvine, California.
Executed
on
, at Irvine, California.
I declare
is true and correct.
Executed
under
penalty
on October
of perjury
9, 2003,
under
at Irvine,
the laws
California.
of the State
of California
that the above
SERVICE/MAILING
D. Michael
Bush, Esq.
Attorney
at Law
2973 Harbor Boulevard
Suite 480
Costa Mesa, California
92626
[Attorney
for Defendant/Appellant
Anne Lemen
aka Anne Lemon]
D. Michael
Bush, Esq,
Attorney
at Law
1818 State College Boulevard
Suite 212
Anaheim,
California
92806-6044
[Attorney
for Defendant/Appellant
Anne Lemen
aka Anne Lemon]
Clerk
of the Court
[Honorable
Gerald G. Johnston]
Orange County Superior Court
700 Civic Center Drive West
Santa
Aria, California
92701
California
Supreme
Court
300 South Spring Street
2 nd Floor
"
Los Angeles,
[5 Copies]
California
90013
LIST