R.D. v. P.M. 12/21/11 CA2/1

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State: California

Court: California Eastern District Court

Docket No: B229681

Case Date: 12/21/2011

Plaintiff: R.D.

Defendant: P.M. 12/21/11 CA2/1

Preview:Filed 12/21/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

R.D., Plaintiff and Respondent, v. P.M., Defendant and Appellant.

B229681 (Los Angeles County Super. Ct. No. SS019955)

APPEAL from an order of the Superior Court of Los Angeles County. David J. Cowan, Temporary Judge. Affirmed. Arnold & Porter, Jake R. Miller and Matthew T. Heartney for Defendant and Appellant. OMelveny & Myers, Michael G. Yoder, Stephanie L. Noble and Lennis N. Collins for Plaintiff and Respondent.

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Therapist R.D. believed she was being stalked and harassed by P.M., a former patient.1 On June 1, 2009 R.D. obtained a one-year civil harassment restraining order under Code of Civil Procedure section 527.6. The order restrained P.M. from harassing or contacting R.D. or her family, and prohibited P.M. from coming within 100 yards of R.D., her office, her family members, or her childrens schools. After the restraining orders one-year term expired at the end of May 2010, however, P.M.s harassment resumed--or so R.D. believed. She was confronted by P.M. at her local market in a manner she considered threatening; she found dozens of consumer-review websites posted with P.M.s messages attacking her personal and professional conduct; flyers with disparaging messages were posted and reposted by P.M. at the entrance to her office building, on nearby cars, and in front of her sons elementary school; and she learned that P.M. had begun undertaking volunteer activities at her childrens elementary and middle schools. Taking these events to indicate that P.M. had resumed her harassment, R.D. sought a renewal of the civil harassment restraining order. The court granted the second restraining order on October 22, 2010, finding that the first order apparently had not "sent home the message." The second order restrains P.M. from harassing or contacting R.D. or her family, and prohibits P.M. from coming within 100 yards of R.D., her office, her family members, their vehicles, or her childrens schools, this time for a three-year term. P.M. appeals from the second order, contending that as a matter of law the material facts do not support a finding of harassment, and that the injunction unconstitutionally restricts her freedom of speech. We affirm. BACKGROUND R.D. is a licensed clinical social worker with a psychotherapy practice in Culver City, California. P.M. had been R.D.s patient for three or more years, until R.D. terminated the therapy on October 31, 2008. R.D. ended the therapy because P.M. had become increasingly hostile toward her, had screamed obscenities at her, had refused to The parties requested at argument that we identify them in this opinion by their initials. 2
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leave her office, had obtained her home phone number and used it to call her home repeatedly, and had threatened to stalk her and to ",,hang around your car." The first harassment restraining order After the therapy ended, R.D. believed she was being stalked and threatened by P.M. She believed that P.M. followed her to her sons school and to his baseball practice; that P.M. began volunteering at her childrens schools; and that P.M. had made false reports about her to a local police detective. About six weeks after R.D. ended the therapy, P.M. confronted R.D. in a stairwell of her office building, begging her to resume the therapy (which R.D. refused to do). In late-January 2009, P.M. telephoned R.D. a number of times, threatening to file a ",,client abandonment" complaint with R.D.s licensing board unless R.D. took her back as a client.2 In early February 2009, R.D. received repeated calls from P.M. (which she did not answer), and a number of professional colleagues with offices in her building received appointment requests from P.M. (or in one case, from a caller who would not identify herself, but who had P.M.s caller i.d.). P.M. also confronted R.D. with verbal hostility in the parking lot of R.D.s sons school, where P.M. had apparently followed her, again demanding that she take P.M. back as a client. And the next day R.D. received a voicemail message from P.M. stating that P.M. had seen R.D. ",,swearing" at her ",,through a window." At that point R.D. filed a police report for stalking, and spoke with the principals of her childrens schools. The principal of her daughters middle school said that he was first contacted by P.M. on November 6, 2008 (one week after R.D. terminated P.M.s therapy) in connection with the promotion of a Ballona Wetlands event. The principal of her sons elementary school said P.M. had approached her, unsolicited, on January 6, 2010, to promote and assist with a planned soccer event. According to R.D., P.M. did not

P.M. apparently did file a complaint with R.D.s licensing agency. On May 20, 2010, R.D. was informed by the California Board of Behavioral Sciences that its investigation of the complaint against her had been completed, that no evidence substantiated any violation relating to her licensure, and that "our file has been closed." 3

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live in Culver City, she had no children of her own, and she had never indicated during the course of her therapy that she had worked with elementary or middle school students or had volunteered at any Culver City schools. In mid-February 2009, a police detective advised R.D. that P.M. had told him she works with Culver City schools, and that R.D. had had a sexual relationship with her at her apartment. Soon afterward, R.D. began to find numerous postings on consumerrelated internet sites, which she attributed to P.M., accusing R.D. of being ",,unstable" and ",,abusive." And in mid-March she was told by the representative of a debtcollection agency that P.M. had given R.D.s name regarding an outstanding hospital bill. In early April 2009, R.D. saw P.M. at R.D.s sons baseball practice at a local park, and immediately afterward she received (but did not answer) two cell-phone calls from P.M. That night she received an email from P.M. that she characterized as harassing, through her listing on a profession-related internet site. Early the next week she learned that P.M. had attended a luncheon at R.D.s daughters middle school the previous week, at which a group of students of which her daughter was a member had been introduced (although it turned out that her daughter had not attended the luncheon). Later that month she learned that P.M. was involved in a media project with her daughters next-door friend. At the beginning of May 2009, R.D. found numerous new derogatory postings about her on various internet sites, which she believed had been posted by P.M.3 And she received another email from P.M., addressed to her through a professional publication, accusing her of being ",,unethical and destructive towards her clients," adding ",,but the sex was fun." R.D. believed that P.M. had a "history of problem drinking, losing her temper, and intense rage." She expressed her fear that these behaviors would escalate into violence. On May 8, 2009, she filed a request for "orders to stop harassment."

According to R.D., P.M. admitted that the postings were hers, though many of them were anonymous or used other names. 4

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After hearing the matter on June 1, 2009, the Superior Court (Gerald Rosenberg, Judge) entered a civil harassment restraining order, under Code of Civil Procedure section 527.6, on the approved Judicial Council form, Los Angeles Superior Court case No. SS018094 (the "first restraining order").4 P.M. apparently did not appeal from the first restraining order. R.D. does not contend that P.M. violated the first restraining order.5 The second harassment restraining order After the restraining orders one-year term expired in June 2010, however, R.D. believes that P.M.s harassment of her resumed. On September 20, 2010 she filed a second civil harassment restraining order request. The second request noted the first restraining order, based on P.M.s "history of following me, appearing at my childrens schools, sending harassing emails, making false accusations and defaming me on the internet." R.D. testified at the hearing that she made her second request for a restraining order due to concerns for her safety based at least in part on "things that [she] learned" while treating P.M. as her therapist. As the most recent example of harassment, she cited an incident that had taken place the previous day: P.M. had approached R.D. in a Trader Joes market where she regularly shopped; P.M. had offered to remove her internet postings about R.D. if R.D. would apologize to her; P.M. had then followed her to the
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All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 5 The facts recited above are taken primarily from R.D.s verified request for the first civil harassment order. The record does not contain P.Ms response (if any) to that request, nor does it contain any record of the hearing or the trial courts findings (if any) with respect to the first harassment order. We therefore presume, as we must, that the alleged facts were found to be true, and that the first order was fully supported by the evidence. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [all intendments and presumptions are indulged in to support validity of order on matters as to which record is silent]; Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112-1113 [order granting injunction necessarily implies that trial court found knowing and willful course of conduct that seriously alarmed, annoyed or harassed plaintiff, and that plaintiff actually suffered substantial emotional distress].) 5

checkstand and stared at her in what seemed to her to be a threatening manner; and R.D. was then too upset to continue, but instead reported to the cashier that P.M. was bothering her and "ran out" without purchasing her groceries. In addition, R.D. testified, after the first restraining order had expired P.M. had distributed flyers at her office building on nine occasions over a period of seven days, and apparently had also distributed flyers at her sons school. Because some of those occasions were at night when she was coming and going from her office, she was "worried that [P.M.] was in the vicinity," and she became scared. In light of P.M.s history of becoming very angry and screaming obscenities at her before the termination of her treatment, her refusal to leave the office when R.D. decided to end the treatment, and her tendency to become very erratic and intoxicated, these circumstances frightened R.D. "And I felt how unstable she is and the fact that shes continued to be focused on me two years after we terminated makes me concerned and the fact that some of the stalking involved getting close to my children." "And all of this put together," including P.M.s approaches to the childrens schools, made R.D. "very concerned and worried that she was obsessively focused on me."6 On October 22, 2010, the court (David J. Cowan, Judge Pro Tem) issued its "restraining order after hearing to stop harassment," on the mandatory Judicial Council form. The order requires P.M. to stay at least 100 yards away from R.D. and members of her immediate family, their home, workplaces, vehicles, and schools. And it specifies acts of personal conduct that P.M. must not do to R.D. or to members of her immediate family, including harassing, attacking, threatening, assaulting, or stalking them, destroying their personal property, keeping them under surveillance, or blocking their movements.7

Consistent with the applicable standard of review, we disregard the contrary evidence presented by P.M. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) 7 The order also prohibits P.M. from owning or possessing firearms. However, P.M.s appeal does not challenge, or even mention, that provision. 6

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On December 21, 2010 P.M. filed her appeal from the trial courts October 22, 2010 entry of the second restraining order. The order is appealable as an appeal from an order granting an injunction. (Code Civ. Proc.,

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