NOT TO BE PUBLISHED IN OFFICIAL REPORTS
The law firm of Stutz Artiano Shinoff & Holtz (the Stutz Firm) filed a complaint against Maura Larkins alleging that Larkins had published several defamatory statements about the firm and its lawyers on several Web sites that Larkins maintained.
Prior to a trial on the issue of damages, the parties reached a settlement. Pursuant to that settlement, the trial court entered a stipulated permanent injunction that prohibited Larkins from publishing statements accusing the Stutz Firm or its lawyers of illegal conduct or violations of law, unethical conduct, lack of professional competence, or intimidation. A few months later, in response to a motion filed by the Stutz Firm, the trial court ordered Larkins to remove from her Web sites several statements that the court found to be in violation of the injunction. A couple of months later, the Stutz Firm filed another motion claiming that Larkins was continuing to publish statements that violated the terms of the stipulated injunction. The trial court found that Larkins had continued to violate the stipulated injunction, and that she was unwilling to modify her Web sites in good faith. The trial court modified the stipulated injunction sua sponte to prevent "[Larkins] from making any mention of [the Stutz Firm] or any of its attorneys, past or present."
On appeal, Larkins contends that the trial court's modified injunction constitutes an unconstitutional prior restraint, in violation of her constitutional right to free speech under both the state and federal Constitutions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Stutz Firm's first amended complaint
In July 2008, the Stutz Firm filed a first amended complaint against Larkins that contained causes of action for defamation per se, declaratory relief, and injunctive relief. The Stutz Firm alleged that Larkins had created a Web site known as the "San Diego Education Report," on which Larkins had made numerous specific defamatory statements concerning the Stutz Firm and its attorneys. The Stutz Firm sought damages, including punitive damages, a declaration that Larkins had published defamatory statements concerning the Stutz Firm, and a "preliminary and/or permanent injunction preventing [Larkins] from continuing to publish or republishing those statements which the court declares to be defamatory."
B. The trial court grants the Stutz Firm's motion for summary adjudication
In October 2008, the Stutz Firm filed a motion for summary adjudication in which it argued that various statements on Larkins's Web sites were defamatory as a matter of law. The Stutz Firm requested that the court "declare that certain statements on [Larkins's] [Web sites] are defamatory and enjoin [Larkins] from publishing these statements."
In March 2009, the trial court entered an order granting the Stutz Firm's motion for summary adjudication. In its order, the court found that the Stutz Firm had established its claim for defamation per se as a matter of law, noting that the Stutz Firm had established that none of the statements on Larkins's Web sites concerning the Stutz Firm were true. The court also ruled that the Stutz Firm was entitled to an injunction precluding Larkins from publishing "the defamatory statements alleged in [the Stutz Firm's] first amended complaint." The court stated that "the case [would] proceed to trial on the amounts of compensatory and punitive damages to be awarded to [the Stutz Firm] according to proof."
C. The stipulated injunction
On April 6, 2009, the day set for the trial on damages, the parties reached a settlement of the case. Pursuant to the parties' stipulation, the court entered a permanent injunction that states in relevant part:
D. The trial court grants the Stutz Firm's motion to enforce the stipulated injunction
In July 2009, the Stutz Firm filed a motion to enforce the permanent injunction. In its brief, the Stutz Firm claimed that Larkins continued to display on her Web sites numerous statements that were in violation of the April 6 injunction. Among the statements on Larkins's Web sites that the Stutz Firm claimed violated the injunction was, "`One of Daniel Shinoff's [an attorney at the Stutz Firm] specialties is destroying the lives of parents who complain that their kids aren't getting the right education.'" The Stutz Firm also claimed that Larkins violated the injunction by posting the following statements on her Web sites: "`Attorneys who have helped cover up events in schools are in charge of training both new board members and new school attorneys,'" and, "`Dan Shinoff trains board members and employees." Larkins filed an opposition in which she argued that the statements at issue did not violate the terms of the injunction.
On August 7, the trial court held a hearing on the Stutz Firm's motion. At the hearing, Larkins stated that the intent of the parties in entering into the stipulated injunction was that, "I would still be able to report the facts, such as [the Stutz Firm] did this action. I would simply not be able to opine that that action was illegal, unethical, incompetent or intimidating." Larkins stated that she needed "clarification" of the scope of the injunction as to "where the limit is." The Stutz Firm's attorney argued, "[T]he stipulated injunction prohibits accusations of certain types of conduct. It's not just magic words. You can't replace one word with the other, and the court correctly grasped that."
Near the conclusion of the hearing, the trial court stated:
On August 7, 2009, the trial court granted the Stutz Firm's motion to enforce the April 6 injunction. The court found that "the disputed statements are in violation of the permanent injunction entered on April 6, 2009. [Larkins] is ordered to remove all the disputed statements from her [Web sites] within 48 hours."
E. The trial court's modification of the injunction
In October 2009, the Stutz Firm filed a motion to strike Larkins's answer and enter a default. In its motion, the Stutz Firm maintained that Larkins was continuing to publish statements that violated the stipulated injunction and the court's August 7 order. For example, the Stutz Firm noted that the following statement appeared on Larkins's Web sites: "`One of Daniel Shinoff's specialties is planning legal tactics against parents who complain that their kids aren't getting the right education.'"
The trial court held a hearing on October 30 at which the court explained that it intended to modify the stipulated injunction to prevent Larkins from making "any mention" of the Stutz Firm on her Web sites. The court reasoned:
On December 11, 2009, the trial court entered the following order, based on the October 30th hearing:
F. The trial court's order holding Larkins in contempt and requiring her to pay $3,000 in sanctions
In January 2010, the Stutz Firm filed an ex parte application to enforce the modified injunction, to hold Larkins in contempt, and to impose sanctions. Larkins filed an opposition. On January 21, the court entered an order to show cause as to why Larkins should not be held in contempt, and set a hearing date of March 5, 2010.
In February 2010, the Stutz Firm filed a motion and brief in support of the order to show cause. In its brief, the Stutz Firm argued that Larkins was in contempt of the court's modified injunction in that numerous references to the Stutz Firm and its attorneys remained posted on Larkins's Web sites. The Stutz Firm requested that the court "take some action [against Larkins], including sanctions, a daily fee, an appropriate contempt punishment (including jail time), striking her answer, or any combination of these, for willfully violating the Court's orders." (Fn. omitted.) The Stutz Firm requested that the court award it $6,547.50 in attorney fees that it incurred in connection with its ex parte application and motion. Larkins filed an opposition to the motion in which she argued that the court should not enforce the modified injunction because the injunction was "vastly unconstitutional."
On March 5, the court heard argument on the order to show cause.
The trial court ordered Larkins to pay $3,000 in sanctions to the Stutz Firm for fees and costs incurred in "enforcing the injunction."
G. Larkins's appeal from the trial court's order modifying the injunction
On March 18, 2010, Larkins timely appealed from the trial court's December 11, 2009 order.
A. The Stutz Firm's motion to dismiss the appeal is denied
The Stutz Firm filed a motion to dismiss Larkins's appeal on the ground that Larkins had repeatedly willfully disobeyed the trial court's orders in this case, including the order at issue in this appeal.
In support of its request, the Stutz Firm noted that the Supreme Court stated in MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 that "[a] party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]" The Stutz Firm also cited TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 378-379, in which the Court of Appeal dismissed an appeal based on the appellant's unabated willful failure to comply with a court order to answer postjudgment interrogatories, and Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1685, in which the Court of Appeal stayed an appeal for 30 days to allow the appellants to demonstrate that they had complied with a trial court's postjudgment order. The Alioto court also indicated that the appeal would be dismissed if the appellants failed to timely demonstrate compliance with the trial court's order. (Id. at p. 1691.)
We deny the Stutz Firm's motion to dismiss, for two reasons. To begin with, all of the cases that the Stutz Firm cites involve litigants who remained in contempt of orders issued by a trial court. The Stutz Firm does not argue in its motion that Larkins remains in contempt of the trial court's order.
Second, even assuming that Larkins remains in contempt of the trial court's modified injunction, we decline to dismiss her appeal since Larkins is challenging the constitutional validity of that injunction in this appeal from the trial court's order modifying the injunction. Such a dismissal would be wholly inconsistent with the fact that in California a party may raise a challenge to the validity of an injunction for the first time in a contempt proceeding to enforce the injunction. (People v. Gonzalez (1996) 12 Cal.4th 804, 818-819 (Gonzalez).) California's law concerning challenges to injunctive orders grew "out of a concern to protect the constitutional rights of those affected by invalid injunctive orders . . . ." (Id. at p. 818.) Larkins has brought a direct challenge to the validity of the trial court's order on the ground that it violates her right to free speech under the federal and state Constitutions. Her failure to comply with that same order cannot serve as a basis for dismissing the very appeal in which she seeks to vindicate her constitutional rights.
B. We reject the Stutz Firm's contention that this court should not consider the merits of Larkins's constitutional claim
The Stutz Firm contends that Larkins forfeited her right to object to the December 11 modified injunction by failing to raise an objection at the October 30 hearing at which the trial court indicated that it intended to order such a modification. We disagree.
The trial court indicated its intent to modify the injunction for the first time, sua sponte, at the October 30 hearing. Larkins thus could not have anticipated prior to the hearing that the trial court would modify the injunction. Further, before the trial court entered the December 11 order modifying the injunction, Larkins filed a written objection in which she claimed that the proposed modification would violate her constitutional right to free speech. Accordingly, we reject the Stutz Firm's contention that Larkins has forfeited her right to object to the December 11 modified injunction.
Further, in light of the circumstances of the trial court's sua sponte modification of the injunction and the important constitutional right at stake, even assuming that Larkins forfeited her claim, we would exercise our discretion to consider it on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate court has discretion to consider claims that are not properly preserved for review].) In addition to the circumstances described above that support our exercise of discretion under Williams to consider Larkins's claim, we note that Larkins also challenged the constitutionality of the modified injunction in opposing the Stutz Firm's motion to hold her in contempt of court for violating that injunction. (See Gonzalez, supra, 12 Cal.4th at p. 818 ["out of a concern to protect the constitutional rights of those affected by invalid injunctive orders, and to avoid forcing citizens to obey void injunctive orders on pain of punishment for contempt, this court has firmly established that a person subject to a court's injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court"].)
Accordingly, we reject the Stutz Firm's argument that this court should not consider the merits of Larkins's constitutional claim.
C. The December 11 modified injunction is an unconstitutional prior restraint
Larkins claims that the December 11 modified injunction is unconstitutional in that it violates her right to free speech under both the federal and state Constitutions. We conclude that the injunction is unconstitutional as an invalid prior restraint.
1. Standard of review
Larkins's claim "depends on a determination of the constitutionality of the injunction, [and therefore] we independently review the question whether the trial court correctly interpreted and applied the applicable constitutional principles. [Citation.]" (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1166 (Evans).)
2. Governing law
In Evans, supra, 162 Cal.App.4th at pages 1166-1167, this court outlined the relevant constitutional law:
"An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint." (Evans, supra, 162 Cal.App.4th at p. 1167.) The Evans court held that the rule of law that prevents the issuance of orders forbidding a party from making false statements "does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory." (Id. at p. 1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156.)
Applying these principles, the Evans court concluded that a preliminary injunction that prohibits the defendant "from publishing any `false and defamatory' statements on the Internet [about the plaintiff] is constitutionally invalid." (Evans, supra, 162 Cal.App.4th at p. 1169.) In reaching this conclusion, the Evans court reasoned, "Because there has been no trial and no determination on the merits that any statement made by [defendant] was defamatory, the court cannot prohibit her from making statements characterized only as `false and defamatory.'" (Ibid.) The Evans court also held that the injunction in that case, which the court characterized as a "sweeping prohibition," was constitutionally overbroad in that it "broadly prohibited [defendant] from publishing any defamatory comments about [plaintiff]." (Ibid.)
"An injunction that forbids a citizen from speaking in advance of the time the communication is to occur is known as a `prior restraint.'" (Evans, supra, 162 Cal.App.4th at p. 1166.) The trial court's modified injunction prohibits Larkins from "making any mention of [the Stutz Firm] or any of its attorneys, past, or present." As such, the injunction plainly constitutes a prior restraint.
To begin with, the reason for the trial court's modification of the injunction—to ensure Larkins's full compliance with the provision of the injunction prohibiting her from publishing certain negative statements about the Stutz Firm—is a far less compelling interest than those that have been found insufficient to justify a prior restraint. (See, e.g., Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144 ["even the publication of the purloined Pentagon Papers concerning matters of national security could not be restrained," citing New York Times Co. v. United States (1971) 403 U.S. 713].) Nor is there anything in the record that demonstrates that "less extreme measures are unavailable" to ensure Larkins's compliance with the stipulated injunction. (Evans, supra, 162 Cal.App.4th at p. 1167.) On the contrary, the record indicates that the trial court had not imposed any monetary sanctions on Larkins prior to entering the modified injunction.
The Stutz Firm does not attempt to defend the injunction's constitutionality by making the required showing under Evans. Rather, it contends that the injunction is constitutional as a sanction for Larkins's past contemptuous behavior.
In Marin, the Court of Appeal held that the trial court had not violated the first amendment by seizing photographic negatives of a criminal defendant that were taken during a criminal trial, in violation of a rule of court. (Marin, supra, 12 Cal.App.4th at p. 1715.) The court reasoned:
The Marin court also stated, "Assuming, however, that the seizure is a prior restraint, we conclude it is justified because the photographs were obtained unlawfully in a deliberate violation of a rule of court." (Marin, supra, 12 Cal.App.4th at p. 1719.) Unlike Marin, in which the court prohibited the publication of speech that had previously been judicially determined to have been unlawfully obtained, in this case, the trial court's order broadly precludes Larkins from ever uttering any speech—even legal and truthful speech—about the Stutz Firm. Thus, while Marin may be viewed as an instance in which a court upheld a narrow prior restraint in order to preserve the fairness of a criminal trial, it clearly does not stand for the proposition that a trial court may issue an injunction barring a defendant from making "any mention" of the plaintiff, even if the defendant has previously defamed the plaintiff.
Krontz, supra, 136 Cal.App.4th 1126, and Admiral Theatre, supra, 832 F.Supp. 1195, on which the Stutz Firm relies, both involved efforts on the part of municipalities to revoke the licenses of adult entertainment businesses that had allegedly violated various municipal code provisions. Neither case is factually similar to this case, and neither is legally apposite. In addition, neither supports the proposition that it is constitutional for a court to enjoin all speech by a defendant concerning a plaintiff, merely because the plaintiff has previously uttered certain defamatory statements about the defendant.
Accordingly, we conclude that paragraph four of the December 11 order modifying the permanent injunction is unconstitutional as an invalid prior restraint.
C. Proceedings on remand
On appeal, Larkins does not challenge the trial court's finding that she failed to comply with the April 6 stipulated injunction, or the court's August 7 order enforcing the stipulated injunction.
Paragraph four of the December 11, 2009 order modifying the permanent injunction is reversed. The matter is remanded to the trial court for further proceedings as described in part III.C., ante. Each party is to bear its own costs on appeal.
HALLER, Acting P. J.