Scott v. Steiner CA2/2 ( 2015 )

Filed 12/22/15 Scott v. Steiner CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DONNA SCOTT, B258400
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SS024341)
v.
REED STEINER et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County.
H. Chester Horn, Jr., Judge. Dismissed in part and affirmed in part.
Dana M. Cole for Defendants and Appellants.
Venable, William J. Briggs, II, Schuyler B. Sorosky, Chana E. Ickowitz for
Plaintiff and Respondent.
___________________________________________________
Donna Scott obtained restraining orders against her neighbors, defendants Reed
Steiner and Dyan Traynor, who engaged in a continuous pattern of harassing conduct
designed to inflict substantial emotional distress on Scott. (Code Civ. Proc., § 527.6
(section 527.6.).) Traynor’s appeal is untimely. The harassing conduct imputed to both
defendants is not privileged (Civ. Code, § 47), nor is it constitutionally protected speech.
We dismiss Traynor’s appeal and affirm the judgment against Steiner.
FACTS
Scott sought civil harassment restraining orders against defendants, a married
couple who live next door to Scott on a cul-de-sac in Beverly Hills. Defendants opposed
Scott’s request, contending that their conduct was privileged. The dispute was the
subject of a three-day bench trial and a lengthy memorandum of decision.1
The genesis of the dispute was a 1994 agreement between Donna Scott’s husband
Tony Scott and the former owners of defendants’ property (the Agreement), which
allowed the Scotts to build a wall that protruded a short distance into the cul-de-sac and
encroached on a joint easement for use of the street. The wall contains a mailbox and a
key pad for the gate to the Scotts’ property. After her husband died in 2012, Scott began
to think about moving, owing to difficult memories she and her two children associated
with the house, an idea she mentioned to defendants.
On August 19, 2013, Scott’s dogs were outside barking. Steiner used Scott’s gate
code, entered her property and put the dogs into Scott’s house through the “doggy door,”
which he barricaded to prevent the dogs from going outdoors. Scott’s housekeeper told
her that she was uncomfortable with people coming onto the property. Scott left
defendants a voicemail message saying that she did not want them to enter her property.
1 The remainder of the facts are taken from the trial court’s decision. Defendants
did not provide this court with a trial transcript, so we must presume that the restraining
orders are fully supported by the evidence. (R.D. v. P.M. (2011) 202 Cal. App. 4th 181,
186, fn. 5.)
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On August 27, 2013, Traynor asked Scott’s gardener to trim five trees on Scott’s
property. Scott called defendants again, and requested that their concerns be addressed
directly to her. This further strained relations between the parties.
In October 2013, Scott’s employee was walking up the street to a dog park owned
by Scott when she was confronted by Traynor, who yelled that the employee had no right
to walk on the street with the dogs. Scott was rebuffed when she called to discuss this
incident. Later that month, Traynor went to the office of Scott’s deceased husband with a
proposal that Scott either remove the wall or pay defendants $250,000. Traynor “made a
scene . . . in an effort to humiliate” Scott.
Scott’s attorneys wrote to Traynor in November 2013, to acknowledge receipt of
the proposal and request time to survey the land to determine the extent of the
encroachment. They instructed Traynor to cease contact with Scott and her employees,
and to not trespass on Scott’s property. Three days later, on Scott’s wedding anniversary,
Steiner left a voice message addressed to “Donna Wilson” (Scott’s maiden name),
indicating his receipt of her attorney’s “‘disgusting and absurd letter,’” telling her she
was “‘ridiculous’” and added, “‘say hi to Tony,’” plaintiff’s deceased husband. The court
found that the only logical explanation of this message was to alarm and cause emotional
distress to Scott.
On December 11, 2013, defendants sent a letter addressed to plaintiff and her
deceased husband, making a formal demand to remove the wall. Defendants claimed that
they acted on the advice of counsel, but the trial court found this “incredible” because it
was unsupported by testimony from counsel. The court found that the letter was another
effort to inflict emotional distress on Scott.
Scott’s attorneys wrote to Traynor regarding Scott’s retention of a surveyor and
asked why, after 20 years, the wall had become unacceptable. Steiner responded with an
e-mail referring to Scott as “piggish,” “erratic,” with a “volcanic temper” and “hermit-
like lifestyle.” He stated that Scott’s deceased husband “would be rolling in his grave (or
his ashes)” to know that the Agreement was not being honored. Steiner stated that Scott
“needs to do the right thing before she further drags herself down the rabbit hole publicly
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and personally more than she already has.” The trial court wrote that this insulting
missive was received by Scott as well as her attorneys, and its only purpose was to cause
emotional distress.
Defendants began leaving their trash cans in front of Scott’s mailbox, something
they had never done in 14 years. This conduct continued for 50 days without
interruption, though trash was picked up only once a week. Defendants increased the
number of trash cans and left them uncovered. Defendants testified that they did this
because they no longer wanted to accommodate Scott and wanted to “‘set an example for
Scott’” because she was a “‘horrible, despicable neighbor.’”
On March 24, 2014, a worker hired by Scott was walking from his car to Scott’s
home when Traynor yelled at him for talking loudly on his cell phone. The worker yelled
back, and testified that defendants then spoke of getting a gun and Steiner threatened to
shoot him. Traynor threw a metal object at the worker from defendants’ balcony.
Though the trial court did not credit the gun threat, the incident “does illustrate the
ongoing behavior of Traynor and Steiner to accost employees of Scott for using the road
that both parties share rights to.” In sum, defendants engaged in “a continuous pattern of
harassing conduct toward Scott and her employees that were designed to and did inflict
substantial emotional distress on Scott. The behavior served no legitimate purpose other
than to inflict such distress.”
The court rejected defendants’ claim that their misconduct was connected to their
desire to enforce contractual rights under the Agreement. Defendants’ only motive was
to inflict substantial emotional distress, not to enforce their legal rights. The court later
clarified that it “intend[ed] to impute behavior of Mr. Steiner and Ms. Traynor to each
other because the evidence overwhelmingly showed that they were, at all times, acting
together.” The court enjoined defendants from harassing or threatening Scott and her
children; contacting them in any way; trespassing on Scott’s property; or placing objects
in front of Scott’s mailbox. The court awarded Scott $40,000 in statutory attorney fees as
the prevailing party.
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DISCUSSION
1. Timeliness of the Appeal
The restraining orders are appealable. (Code Civ. Proc., § 904.1, subd. (a)(6);
R.D. v. P.M., supra, 202 Cal.App.4th at p. 187.) Scott asks that the appeal be dismissed
as untimely. “If a notice of appeal is filed late, the reviewing court must dismiss the
appeal.” (Cal. Rules of Court, rule 8.104(b).) “The time for appealing a judgment is
jurisdictional; once the deadline expires, the appellate court has no power to entertain the
appeal.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins.
Agency, Inc. (1997) 15 Cal. 4th 51, 56.)
The trial court signed the restraining orders on June 11, 2014. It also issued an
unsigned memorandum of decision, stating its reasons for granting the restraining orders
and signaling its intent to sign those orders. When a decision is followed by a formal
order, as occurred here, the signed order is the judgment. (Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal. 4th 894, 901; In re Cassandra B. (2004) 125 Cal. App. 4th
199, 208 [a restraining order is directly appealable].)
A notice of appeal must be filed within 60 days after (1) the superior court clerk
serves a file-stamped copy of the judgment, or (2) a party serves a file-stamped copy of
the judgment on the person filing the notice of appeal. Otherwise, the notice must be
filed within 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1).)
The superior court clerk served the court’s memorandum of decision, along with
file-stamped copies of the restraining orders, on June 11, 2014. By serving both the
nonappealable minute order together with the appealable restraining orders in a single
envelope, the clerk did not trigger the 60 day period for filing an appeal. (Alan v.
American Honda Motor Co., Inc., supra, 40 Cal.4th at p. 903.) Litigants need not “glean
the required information from multiple documents or [ ] guess, at their peril, whether
such documents in combination trigger the duty to file a notice of appeal.” (Id. at p. 905.)
To trigger the 60-day appeal period, the court clerk had to send only the restraining
orders, with a notice of entry or a certificate of mailing. That did not happen in this case.
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As to the second method for triggering the 60-day appeal period, plaintiff arranged
for the civil harassment restraining order against Traynor to be personally served on
defense counsel on June 12, 2014; proof of personal service was filed with the court on
June 13, 2014. (Code Civ. Proc., § 1011, subd. (a) [authorizing personal service on an
attorney].) Defense counsel does not contest that he was properly served with the
judgment against Traynor. The notice of appeal was filed 62 days later, on Wednesday,
August 13, 2014, which is two days too late.
Traynor offers two reasons why she believes that her appeal is timely.
First, she observes that the trial court issued a nunc pro tunc order on June 20,
2014. This corrects “due to inadvertence and clerical error” the memorandum of decision
describing the facts underlying the restraining orders.2 Traynor reasons that the
correction is a new judgment, rendering her notice of appeal timely.
It is true that a “substantial modification” of the judgment by amendment
supersedes the original, and becomes a new appealable judgment. (Torres v. City of San
Diego (2007) 154 Cal. App. 4th 214, 222.) Thus, if the original judgment names one
defendant, and an amendment changes the judgment to an entirely different defendant,
this substantial modification begins the time for an appeal by the newly named losing
party because it is a material change in the outcome. (CC-California Plaza Associates v.
Paller & Goldstein (1996) 51 Cal. App. 4th 1042, 1048-1049.)
Here, the judgment is the restraining order entered on June 11, 2014. The
judgment contains no errors, clerical or otherwise, correctly naming the protected persons
as Donna Scott and her two children, and the restrained persons as Reed Steiner and
Dyan Traynor. The nunc pro tunc correction of the court’s unsigned, nonappealable
factual synopsis did not result in any change to the judgment. Accordingly, the time to
2 The decision reads, “Traynor and Scott have engaged in a continuous pattern of
harassing conduct toward Scott and her employees that [was] designed to and did inflict
substantial emotional distress on Scott.” (Italics added.) The nunc pro tunc order
corrects the italicized word from “Scott” to “Steiner” because Scott obviously did not
engage in harassing conduct toward herself.
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appeal began the day after the court signed the restraining order, when it was personally
served on defense counsel. The time to appeal was not affected by clerical changes to the
memorandum of decision.
Second, Traynor maintains that the time for an appeal was extended by a motion
for reconsideration filed on June 27, 2014, 16 days after the trial court entered judgment,
and 15 days after plaintiff personally served the order. The trial court denied the motion
because it is procedurally defective and did not raise any new or different facts,
circumstances or law.
A motion for reconsideration cannot be pursued after judgment. A court may
“reconsider or alter its judgment so long as judgment has not yet been entered. Once
judgment has been entered, however, the court may not reconsider it and loses its
unrestricted power to change the judgment. It may correct judicial error only through
certain limited procedures such as motions for new trial and motions to vacate the
judgment.” (Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606.) The filing of
an invalid postjudgment motion for reconsideration does not extend the time in which to
file a notice of appeal from the judgment. (Ramon v. Aerospace Corp. (1996) 50
Cal. App. 4th 1233, 1236-1237; Ten Eyck v. Industrial Forklifts Co. (1989) 216
Cal. App. 3d 540, 545.) Traynor’s postjudgment motion was not valid.
The losing party’s pursuit of “a valid motion to reconsider an appealable order
under Code of Civil Procedure section 1008” extends the time to appeal. (Cal. Rules of
Court, rule 8.108(e), italics added.) A valid motion for reconsideration is one that
“‘complies with all procedural requirements,’” regardless of its substantive merits.
(Branner v. Regents of University of California (2009) 175 Cal. App. 4th 1043, 1047,
italics omitted.) The requirements for a motion for reconsideration are: (1) filing the
motion within 10 days after service of written notice of the order and (2) the applicant
“shall state by affidavit” the order made and what new or different facts, circumstances or
law are shown. (Code Civ. Proc., § 1008, subd. (a).)
Traynor’s motion for reconsideration was procedurally defective. Apart from
being improperly filed after judgment was entered, it was filed more than 10 days after
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personal service of the appealable restraining orders, and it has no supporting affidavit.
A motion to reconsider is “invalid when filed and served [if it] fail[s] to contain an
affidavit or declaration in support of the motion.” (Branner v. Regents of University of
California, supra, 175 Cal.App.4th at p. 1048, italics omitted.) As a result, the time to
appeal was not extended. (Id. at pp. 1049-1050.)
2. Defendants’ Harassing Conduct Was Neither Privileged Nor Protected Speech
Defendants do not contest that their course of conduct, as described by the trial
court, amounts to harassment.3 Instead, defendants maintain that the restraining orders
are based on emotional distress “arising from privileged communications between the
parties that related to a legal dispute.” “A privileged publication or broadcast is one
made . . . [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) or in the initiation or course of any other
proceeding authorized by law.” (Civ. Code, § 47, subd. (b).)
The litigation privilege guarantees access to the judicial process by litigants,
witnesses and attorneys, while allowing them to avoid subsequent derivative tort actions.
(Olszewski v. Scripps Health (2003) 30 Cal. 4th 798, 830; Flatley v. Mauro (2006) 39
Cal. 4th 299, 324.) A prelitigation communication is privileged only if it actually relates
to litigation contemplated in good faith, i.e., it must be “‘in furtherance of the objects of
the litigation’” and “‘connected with, or have some logical relation to, the action [and]
not be extraneous to the action.’” (Action Apartment Assn., Inc. v. City of Santa Monica
(2007) 41 Cal. 4th 1232, 1251; Silberg v. Anderson (1990) 50 Cal. 3d 205, 219-220.)
Critically, the privilege “‘“applies only to communicative acts and does not privilege
3 A “course of conduct” is a pattern evidencing a continuity of purpose, including
stalking, making harassing telephone calls, or sending harassing correspondence;
“harassment” is a knowing and willful course of conduct directed at a specific person that
seriously alarms, annoys or harasses the person, serves no legitimate purpose, and would
cause a reasonable person to suffer substantial emotional distress and actually did cause
substantial distress to the petitioner. (§ 527.6, subd. (b).) The trial court imputed
Traynor’s conduct to Steiner, and vice versa.
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tortious courses of conduct.”’” (Olszewski, at p. 830; Action Apartment Assn., at
p. 1249.)
The tortious course of conduct detailed by the trial court was not logically related
to contemplated litigation, or in furtherance of the objects of litigation. Defendants’ acts
were entirely extraneous to any litigation: trespassing in Scott’s yard; barricading Scott’s
dogs inside of her house; accosting and yelling at Scott’s employees; making a scene at
the office of Scott’s deceased husband to humiliate Scott; leaving a voicemail with
greetings to Scott’s deceased husband on Scott’s wedding anniversary; sending a letter to
Scott demanding that she and the decedent remove the wall, even though Scott was
already represented by counsel who had instructed defendants not to contact Scott; and
leaving numerous uncovered trash cans in front of Scott’s mailbox for 50 straight days.
These acts of misconduct did not serve to enforce defendants’ ability under the
Agreement to seek removal of the mailbox wall. Defendants admitted at trial that they
were cruel to Scott because they did not like her.
Apart from lacking any actual or logical connection to a judicial proceeding,
defendants’ statements were admissible to show their intent to harm Scott personally, not
just enforce the Agreement. “‘The privileges of Civil Code section 47 . . . operate as
limitations upon liability’” and the statute “has never been thought to bar the evidentiary
use of every ‘statement or publication’ made in the course of a judicial proceeding . . . .
Thus, while section 47(2) bars certain tort causes of action which are predicated on a
judicial statement or publication itself, the section does not create an evidentiary privilege
for such statements. Accordingly, when allegations of misconduct properly put an
individual’s intent at issue in a civil action, statements made during the course of a
judicial proceeding may be used for evidentiary purposes in determining whether the
individual acted with the requisite intent.” (Oren Royal Oaks Venture v. Greenberg,
Bernhard, Weiss & Karma, Inc. (1986) 42 Cal. 3d 1157, 1168; Flatley v, Mauro, supra,
39 Cal.4th at p. 325.)
Unsurprisingly, defendants cite no cases in which a party was afforded the
protection of the statutory privilege after engaging in a course of conduct designed to
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harass and inflict emotional distress on another person. Section 527.6 instructs courts to
enjoin unlawful harassment to protect an individual’s constitutional right to safety,
happiness and privacy. (Russell v. Douvan (2003) 112 Cal. App. 4th 399, 403.) Applying
the litigation privilege to concededly harassing conduct would vitiate section 527.6 and
render its constitutional protections meaningless.
The litigation privilege has been limited when it creates an irreconcilable conflict
with other, coequal state laws. The privilege does not apply when a statute “is more
specific than the litigation privilege and would be significantly or wholly inoperable if its
enforcement were barred when in conflict with the privilege.” (Action Apartment Assn.,
Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1246 [privilege does not apply to
perjury, subornation of perjury, false report of a criminal offense, or improper attorney
solicitations].) The litigation privilege does not apply at all to harassing debt collection
practices forbidden by the Rosenthal Fair Debt Collection Practices Act (Civ. Code,
§ 1788 et seq.) because applying the privilege would effectively immunize the abusive
conduct that the Rosenthal Act prohibits. (Komarova v. National Credit Acceptance, Inc.
(2009) 175 Cal. App. 4th 324, 337-340.) In this instance, applying the litigation privilege
to uncontestedly harassing misconduct would immunize defendants from the
antiharassment provisions in section 527.6.
The cases cited by defendants relating to aggressive attorney demand letters are
inapposite here: neither defendants’ communications nor their immature and vicious
conduct had anything to do with exercising a contractual right to demand the removal of
the mailbox wall. Even an attorney’s demand letter is actionable if it contains scurrilous
material directed at an individual that is unrelated to any legal dispute between the
parties. (Nguyen v. Proton Technology Corp. (1999) 69 Cal. App. 4th 140, 150-151.)
Scott’s petition did not violate defendants’ constitutional right to freedom of
speech. (See § 527.6, subd. (b)(1) [excluding constitutionally protected activity].) The
First Amendment does not prohibit courts from incidentally enjoining speech to protect
individuals’ constitutional right to pursue the safety, happiness and privacy assured by
the antiharassment statute where, as here, the restraining orders are content neutral and
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are no broader or more restrictive than is necessary to prevent continued harassment.
(R.D. v. P.M., supra, 202 Cal.App.4th at pp. 191-193.) “In California, speech that
constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally
protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th
1228, 1250.) Antagonistic acts, deliberate infliction of emotional distress, intrusion and
trespass onto someone’s property is not “speech.” (Novartis Vaccines & Diagnostics,
Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal. App. 4th 1284, 1296.
See also Brekke v. Wills (2005) 125 Cal. App. 4th 1400, 1409 [harassing private speech
does not implicate the First Amendment, which protects matters of public concern] and
DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal. 4th 864, 881 [there is no
impediment to restraining speech to protect the constitutional rights of others].)
3. Attorney Fees on Appeal
“The prevailing party in any action brought under [the antiharassment statute] may
be awarded court costs and attorney’s fees, if any.” (§ 527.6, subd. (r).) As the
prevailing party in this appeal, Scott is entitled to recover her attorney fees and costs on
appeal from defendants, in an amount to be determined by the trial court upon application
by Donna Scott. (Byers v. Cathcart (1997) 57 Cal. App. 4th 805, 812-813.)
DISPOSITION
As to defendant Dyan Traynor, the appeal is dismissed for lack of jurisdiction
stemming from an untimely notice of appeal. As to defendant Reed Steiner, the judgment
is affirmed. Donna Scott is entitled to recover her costs on appeal from both defendants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. HOFFSTADT, J.
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