E.G. v. M.L. ( 2024 )

Filed 9/9/24; Certified for Publication 10/3/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
E.G., H051526
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 23CV01723)
v.
M.L.,
Defendant and Appellant.
Representing herself, 17-year-old M.L.1 challenges a civil harassment restraining
order (restraining order) issued pursuant to Code of Civil Procedure section 527.62
protecting E.G.
E.G., a former romantic partner of M.L.’s mother, sought the restraining order
after M.L. posted E.G.’s personal information on social media and alleged E.G. was
supporting M.L.’s mother in abusive conduct against M.L. and M.L.’s younger brother,
S.L. The restraining order prohibits M.L. from publishing E.G.’s personal or professional
1
We refer to the parties by their initials to protect their privacy interests. (Cal.
Rules of Court, rule 8.90(b)(4).) Although the self-represented parties have not requested
anonymity in this appeal, protective nondisclosure is appropriate on the facts of this case.
Moreover, maintaining the parties’ anonymity is consistent with the confidentiality orders
in the underlying civil case and closely related family law case, discussed post.
2
Unspecified statutory references are to the Code of Civil Procedure.
contact information online and from defaming or harassing her. On appeal, M.L.
contends there was no clear and convincing evidence of harassment under section 527.6.
She also maintains that the trial court failed to consider circumstances that made it
unlikely the alleged harassment would continue or recur.
For the reasons explained below, we conclude that substantial evidence supports
the imposition of the restraining order against M.L. but does not support the order
extending beyond M.L. turning 18 years of age. We will therefore modify the restraining
order to expire on M.L.’s 18th birthday and affirm the order as modified.
I. FACTS AND PROCEDURAL BACKGROUND
The facts as presented in this appeal are contested. Under the applicable rules of
appellate review, we summarize the facts in the light most favorable to the judgment.
(Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405 (Brekke); see Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 787 [“[W]e view the evidence, which was conflicting and
vigorously contested, in a light most favorable to [the prevailing parties], resolving all
conflicts in their favor”].) We describe conflicting evidence only as relevant to M.L.’s
contentions on appeal. While certain facts and occurrences cited by the parties are
intertwined with and related to issues that were—at the time—pending in
contemporaneous family law litigation, we limit our discussion of the facts only to those
directly relevant to this appeal.3
E.G. is the former girlfriend of M.L.’s mother. Their relationship began in July
2018. E.G., who is married in a non-monogamous relationship, lived part time with
M.L.’s mother during their relationship and spent time with M.L. and S.L. E.G. and her
3
While the events relevant to this appeal were unfolding, M.L. and S.L. were the
subjects of a widely publicized custody dispute in Santa Cruz County Superior Court.
The family law case is relevant in limited respects to this appeal, and we refer to it as
necessary to clarify the underlying circumstances and findings of the trial court in the
civil restraining order matter.
2
wife occasionally babysat for M.L. and S.L., spent holidays with them, and went on
outings.
During that time, M.L.’s parents were engaged in contentious family law
proceedings regarding the children’s custody. After an incident in December 2020
between M.L.’s father and E.G., E.G. sought a restraining order preventing M.L.’s father
and stepmother from contacting her or going to her home. The parties in that restraining
order case stipulated to a dismissal after M.L.’s father and stepmother entered into a
personal conduct agreement in the family law litigation in which they agreed not to
harass, threaten, or contact E.G. or her wife. According to M.L., E.G. convinced M.L.’s
mother that M.L.’s father was dangerous and continued to become further enmeshed in
her mother’s legal battle against her father.
The custody dispute between M.L.’s and S.L.’s parents involved allegations of
sexual and other abuse brought by the children against their mother. M.L. asserts that she
and her brother “came forward” in 2022 with their “account of physical, psychological,
and sexual abuse” by their mother, much of which “occurred while [E.G.] was the
primary romantic and domestic partner” of M.L.’s and S.L.’s mother.
The family court found in October 2022 that the allegations by M.L. and her
brother were “ ‘not credible,’ ” that M.L.’s mother did not sexually abuse the children,
and that she was a “safe parent.” The family court awarded custody to M.L.’s and S.L.’s
mother. E.G. helped M.L.’s mother pack up and move with the children from Santa Cruz
to Olympia, Washington.
Before their removal to Washington, M.L. states that her mother arranged for her
and her brother to be “violently taken” to a reunification camp in Los Angeles where they
were “seriously assaulted and injured, both physically and psychologically.” M.L.
maintains that the move to Washington was part of a plot to isolate her and her brother
from their family, friends, community, and support. M.L. states that while in Washington
she and her brother were forced to change their names and were sent back to the
3
reunification camp as punishment for speaking truthfully to their court appointed lawyer.
M.L. asserts that E.G. and her mother were still “openly romantically involved” at that
time. However, E.G. asserts that her relationship with M.L.’s mother ended upon the
move to Washington, and she did not see M.L. again. She avoided contact for “a long
time” in order to disentangle from M.L.’s family situation.
In late May 2023,4 M.L. and S.L. ran away from their mother in Washington and
returned to Santa Cruz, where they hid at their friend’s house and paternal grandmother’s
house to avoid returning to their mother. In July, a neighbor told M.L. that a friend of
E.G.’s was at the neighbor’s house to spy on the children and report their whereabouts to
E.G., who sought “to help [their] mother ‘kidnap [them] back.’ ” M.L. believed that E.G.
was stalking her and her brother and helping M.L.’s mother collect information about
their location.
M.L. first posted information online about E.G. in early July. She posted the same
video to TikTok and Instagram. In the video, which E.G. played for the trial court at the
hearing, M.L. stated that E.G., her “ ‘mother’s girlfriend,’ ” “ ‘protected [M.L.’s] mother
and supported her sexual abuse of both [her] and [her] brother, as well as [their] mother’s
neglect, yet she is still an involved member of the community of therapists in Santa
Cruz.’ ” M.L. stated that E.G. was a consultant with the same victim’s advocate agency
that interviewed M.L. and her brother about the sexual abuse claims, after which she
asserted the police changed their investigation into M.L.’s mother’s actions from felony
sexual abuse to misdemeanor sexual abuse. M.L. also described an incident in which she
alleged that her mother and E.G. took the children to San Luis Obispo without informing
their father, left them alone in a hotel room “all night” and went to a separate room to
have sex with E.G.’s other partners, and told M.L.’s younger brother to go to the Denny’s
4
M.L.’s declaration states that she ran away from Washington in May 2022;
however, the evidence establishes that this event occurred in May 2023. Unless
otherwise indicated, all dates were in 2023.
4
restaurant across the street by himself for breakfast since their mother would not be back
until later that morning. M.L. stated that E.G. “ ‘continued to support’ ” her mother and
“ ‘helped her move [M.L. and her brother] to a different town to keep [them] hidden’ ”
even after E.G. saw the video in which M.L.’s mother had the children “ ‘violently
kidnapped.’ ” M.L. accused E.G. of “ ‘using her resources in Santa Cruz to spy on’ ”
M.L. and her brother and “ ‘report’ ” “ ‘directly back to’ ” their mother, causing them to
“ ‘still live in total fear of being taken back and put in a reunification camp or worse.’ ”
The video displayed several pictures of E.G. along with her office address, phone
number, and e-mail.
E.G. asserts that at the time M.L. posted this video, she had not been in contact
with M.L. for more than two years. However, M.L. believed that E.G.’s alleged actions
supporting M.L.’s mother put M.L. and her brother “in mortal danger of being harmed,
kidnapped, abused, and threatened”—fears she asserts were “rational and reasonable”
given her prior experience of being forcibly removed and made to live against her will
with her mother.
In another video posted later in July to TikTok and Instagram, M.L. again referred
to E.G. as M.L.’s mother’s girlfriend. In it, M.L. accused E.G. of “dating and
supporting” M.L.’s mother, “a pedophile and child abuser.” M.L. noted that E.G. is a
therapist in Santa Cruz, works with children, and “still supports” her mother even after
seeing the video footage of M.L. and her brother “being taken.” M.L. reiterated her claim
regarding E.G.’s alleged influence over the police investigation into M.L.’s mother’s
alleged abuse. In the video, M.L. disclosed photographs of E.G. and E.G.’s professional
contact information (including her work e-mail, office address, and phone number) and
screen shots of her professional website, and named the professional organization in
Santa Cruz with which E.G. is affiliated. M.L. asked her social media followers to
“please pressure” E.G. and “make her stop” because E.G.’s support of their mother puts
M.L. and her brother “in danger.”
5
M.L. asserts she took the TikTok and Instagram videos down after “less than a
week” upon learning of the restraining order sought by E.G. M.L. acknowledged that
other people may have reposted the videos before she took them down. M.L. “was not
aware of anything violent or hateful” against E.G. until E.G. filed for the restraining order
against her.
E.G. testified and submitted evidence showing that viewership of her professional
website increased significantly after the second video was posted. E.G. received threats
and harassment from unknown third parties, which she reported to law enforcement, and
numerous false “Google reviews” to her professional online listing. Anonymous
messages to her professional website’s contact page expressed outrage that E.G. is
“complicit with sexual assault of children” and “help[s] predators and apparently [has]
sex with them.” The messages told E.G. that she was being reported to the state licensing
board, that they hoped her life “is destroyed like the lives of the children you have
destroyed,” and warned her “ ‘They’re coming for you, [E.G.], better bat [sic] down the
hatches. A storm is heading your way.’ ” E.G. also received explicit threats via
voicemail. One message threatened to “ ‘see if we can’t find somebody to tie you to a
hotel bed, you fucking bitch, raping children.’ ” Another message called E.G. expletives,
told her they were “ ‘digging up secrets’ ” and that she “ ‘better look left[,] . . . better look
right’ ” and “ ‘be fucking paranoid’ ” because they were “ ‘watching [her].’ ”
On July 20, E.G. applied for a temporary restraining order against M.L., alleging
online harassment and defamation by M.L. based on her widely viewed TikTok and
Instagram videos, and attached documents in support of her request. E.G. noted that she
had received threats from third parties. On July 21, the trial court issued a temporary
restraining order. E.G. filed an additional declaration and documents in support of her
request, and M.L. filed an amended response to the restraining order application together
with supporting documents and declarations.
6
On July 28, the family court issued additional findings and order in the custody
case to address the developments in that case. As a result, M.L. and S.L. were permitted
to return to their father’s residence.
During the restraining order hearing, M.L. and E.G. each testified and presented
argument. E.G. argued that she needed the court to restrain M.L.’s harassment of her
“online and otherwise.” She noted it was undisputed that M.L. “made the posts” and had
been harassing her online, and that E.G. was “receiving credible threats of bodily harm
from random people online and reasonably fear[ed] for [her] safety.”
M.L. responded that there was no basis for imposing a restraining order because
the content had been removed, no further content about E.G. had been posted, and she
had neither threatened E.G. nor asked anyone to threaten her. M.L. maintained that she
acted with a legitimate purpose prompted by reasonable fear, since she was “on the run
and hiding from [her] mother” at the time of the posts and believed that E.G. was
continuing to support her mother in trying to “ ‘recapture’ ” her and send her back to
“reunification camp.” M.L. argued that her right to freedom of speech enabled her “to
speak out” when under threat. M.L. urged the trial court to consider that this “is a serious
legal action by an adult against a minor” that should not be addressed through a civil
harassment restraining order but should be treated instead as a “domestic issue,” given
E.G.’s intimate relationship with M.L.’s mother and E.G.’s attacks on M.L.’s father.
On August 31, the trial court made a detailed ruling on the record granting E.G.
pursuant to section 527.6 a three-year civil harassment restraining order against M.L.5
The court noted that several issues discussed by the parties were the subject of prior
litigation in which M.L. was represented by counsel and which decisions would likely
5
M.L. requested a statement of decision of the trial court’s ruling. Pursuant to
section 632, the trial court made an oral record of the basis for its decision. (§ 632
[allowing a requested statement of decision to “be made orally on the record in the
presence of the parties” when the court trial is concluded within one calendar day]; Cal.
Rules of Court, rule 3.1590(n).)
7
have preclusive effect in this action. The court took judicial notice of those findings and
decisions in the family court action, including that the children’s sexual abuse allegations
against their mother were “ ‘not credible’ ” and that their mother was a “safe parent” with
respect to the children’s and father’s allegations against her.
As to M.L.’s alleged civil harassment of E.G., the court found that by referring to
E.G., as a therapist and a gay individual, as someone who is supporting the sexual abuse
and terrorization of children by their mother, and by sharing E.G.’s contact information
along with pleas to pressure her and make her stop, M.L. had engaged in “doxxing” and
in a course of conduct causing E.G. to be threatened and harassed, which conduct was
likely to continue absent a restraining order.6 The court concluded that E.G. had met her
burden by clear and convincing evidence.
II. DISCUSSION
M.L. contends that E.G.’s evidence was insufficient to support issuance of the
restraining order and asks this court to vacate it. She argues that there is “no clear and
convincing evidence of harassment” (capitalization omitted) and challenges the trial
court’s findings on the course of challenged conduct, the legitimate purpose behind the
posts, E.G.’s emotional distress, and the probability the unlawful act will be repeated in
the future. E.G. counters that substantial evidence supports the trial court’s order.
A. Section 527.6
“Section 527.6 was enacted ‘to protect the individual’s right to pursue safety,
happiness and privacy as guaranteed by the California Constitution.’ [Citations.] It does
6
The trial court defined doxxing as the dissemination of information to the
purpose of causing others to harass somebody. According to the Merriam-Webster
Dictionary, to “dox” is “to publicly identify or publish private information about
(someone) especially as a form of punishment or revenge.” (Merriam-Webster Dict.
Online (2024) <https://www.merriam-webster.com/dictionary/dox> [as of Sept. 6, 2024],
archived at: <https://perma.cc/D8XH-CT23>.)
8
so by providing expedited injunctive relief to victims of harassment.” (Brekke, supra,125 Cal.App.4th at p. 1412.)
Under section 527.6, subdivision (a)(1), “[a] person who has suffered harassment
as defined in subdivision (b) may seek a temporary restraining order and an order after
hearing prohibiting harassment as provided in” section 527.6. Section 527.6, subdivision
(b)(3) defines “ ‘[h]arassment’ ” in relevant part as “a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose. The course of conduct must be that which would
cause a reasonable person to suffer substantial emotional distress, and must actually
cause substantial emotional distress to the petitioner.”
Section 527.6, subdivision (b)(1) defines “ ‘[c]ourse of conduct’ ” as “a pattern of
conduct composed of a series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual, making harassing
telephone calls to an individual, or sending harassing correspondence to an individual by
any means, including, but not limited to, the use of public or private mails, interoffice
mail, facsimile, or email. Constitutionally protected activity is not included within the
meaning of ‘course of conduct.’ ”
“If the [trial court] finds by clear and convincing evidence that unlawful
harassment exists, an order shall issue prohibiting the harassment.” (§ 527.6, subd. (i).)
The “ ‘ “[c]lear and convincing” ’ ” standard “ ‘requires a finding of high probability’ ”
of unlawful harassment. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 401 (Russell).)
B. Analysis
We review the trial court’s decision to grant the restraining order for “ ‘whether
the findings (express and implied) that support the trial court’s entry of the restraining
order are justified by substantial evidence in the record.’ ” (Harris v. Stampolis (2016)
248 Cal.App.4th 484, 497 (Harris).) When conducting our review, we must “not reweigh
the evidence itself” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008 (O.B.)), but
9
must instead “view the record in the light most favorable to the prevailing party below
and give appropriate deference to how the trier of fact may have evaluated the credibility
of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from
the evidence.” (Id. at pp. 1011–1012.) Whether the facts, supported by substantial
evidence and construed most favorably in the petitioner’s favor, are legally sufficient to
constitute civil harassment under section 527.6 is a “ ‘question[] of law subject to de
novo review.’ ” (Harris, at p. 497; R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188
(R.D.).)
1. Course of Conduct
M.L. challenges the sufficiency of the evidence to support the restraining order as
to four of the six components of unlawful harassment. (See Parisi v. Mazzaferro (2016)
5 Cal.App.5th 1219, 1227 (Parisi) [enumerating the elements of unlawful harassment, as
defined by section 527.6, as (1) a knowing and willful course of conduct (2) directed at a
specific person; (3) which seriously alarms, annoys, or harasses the person; (4) which
serves no legitimate purpose; (5) which would cause a reasonable person to suffer
substantial emotional distress and actually causes substantial emotional distress to the
plaintiff; and (6) which is not a constitutionally protected activity], disapproved of in part
on another ground by O.B., supra, 9 Cal.5th at pp. 1003, fn. 4, 1005.)
Beginning with “course of conduct,” M.L. contends that the trial court identified
only one of the videos as harassment. M.L. asserts that although she had simultaneously
posted the video to two social media platforms, the posting constituted “a single act at a
single point in time” and was, in any event, removed soon after by M.L. M.L. argues that
such a single incident of harassment does not satisfy the statutory requirement for a
course of conduct warranting injunctive relief.
The statute defines “ ‘[c]ourse of conduct’ ” as “a series of acts over a period of
time, however short, evidencing a continuity of purpose.” (§ 527.6, subd. (b)(1).)
Webster defines “series” as “a number of things or events of the same class coming one
10
after another in spatial or temporal succession.” (Webster’s 10th New Collegiate Dict.
(1999) p. 1069.)
Beyond the requirement that there be more than one act to qualify as a “ ‘[c]ourse
of conduct’ ” (§ 527.6, subd. (b)(1)), the statute does not prescribe the necessary number
or frequency of the acts required for a finding of course of conduct harassment.
Moreover, in deciding whether to issue the order, the trial court views the evidence as a
whole, including incidents that, if viewed in isolation, might seem trivial, but
cumulatively could constitute a harassing course of conduct. (R.D., supra, 202
Cal.App.4th at p. 190.)
We decide the record contains substantial evidence from which the trial court
could conclude that M.L. made a series of social media posts constituting a “course of
conduct” under the statute. These posts include at least two different video messages
posted to Instagram and TikTok on separate dates in July 2023.7
We disagree with M.L. that the trial court found “[o]nly one post” met the
definition of harassment. In determining that there was a course of conduct, the court
cited “the posting that was made on Instagram and the documentation reflecting the
language that it contained.” Although the court referred to the posting on Instagram in
the singular, it did not specify which Instagram posting and moreover described the
posting in a manner inclusive of both videos discussed and reviewed at the hearing, each
of which had been posted to Instagram and TikTok. This is consistent with the court’s
observation that “the issue before the [c]ourt . . . is whether or not the postings by [M.L.]
pertaining to the petitioner here, [E.G.], constitutes a knowing and willful course of
7
Although it is not entirely clear from the record which video the trial court and
parties are referencing, E.G.’s declarations and testimony establish that there were two
separate videos posted by M.L. about E.G. M.L. posted one video in early July and the
second video later in July, on or about July 18. She posted an additional video on August
15, describing the pending restraining order request and referring to E.G. as her mother’s
“ ‘girlfriend.’ ”
11
conduct.” (Italics added.) The evidence at trial showed that both of these postings shared
E.G.’s direct contact information and pictures and accused her as the children’s mother’s
“ ‘girlfriend’ ” of supporting an alleged child abuser. The evidence at trial and submitted
in support of the restraining order also established that M.L. “positively commented” on
comments of support in response to the social media posts about E.G.
The statute does not require express findings by the trial court of the elements of
harassment as defined in section 527.6, subdivision (b). (Ensworth v. Mullvain (1990)
224 Cal.App.3d 1105, 1112 (Ensworth), disapproved in part on another ground in O.B.,
supra, 9 Cal.5th at p. 1010, fn. 7.) Thus, the trial court’s reference to “posting” in the
singular is not determinative. Furthermore, we are not limited by the trial court’s
reasoning and are instead concerned with the correctness of the trial court’s order. (See,
e.g., In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 632.) M.L.’s effort to
narrow our review of the evidence supporting the trial court’s ruling to just one of the
videos she posted is inconsistent with the evidence adduced at trial and with the standard
of review for findings of fact.8
“[W]hen presented with a challenge to the sufficiency of the evidence associated
with a finding requiring clear and convincing evidence, the [reviewing] court must
determine whether the record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of high probability
demanded by this standard of proof.” (O.B., supra, 9 Cal.5th at p. 1005, italics added.)
We conclude that the trial court’s finding of a course of conduct within the meaning of
8
M.L. requested a statement of decision and obtained a detailed oral ruling on the
record (see § 632) setting forth the trial court’s “ultimate findings” (Almanor Lakeside
Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 770) on key elements of the
alleged harassment, including course of conduct. Because M.L. did not bring any
perceived deficiencies in the ruling on course of conduct to the trial court’s attention
when it rendered its decision, we continue to apply the appellate presumption drawing all
inferences in support of the court’s ultimate finding on course of conduct. (Id. at p. 771;
see also Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1026–1027.)
12
the statute was properly informed by all the online content posted by M.L. in which she
shared E.G.’s photos and information and portrayed her as someone who supports
pedophilia, kidnapping, and child abuse, has influenced the investigations into M.L.’s and
S.L.’s sexual abuse allegations, and has spied on the children to report their movements
back to their mother. (Harris, supra, 248 Cal.App.4th at p. 497.) These facts, construed
most favorably for E.G., are substantial evidence that M.L.’s social media posts about
E.G. constituted a “pattern of conduct composed of a series of acts over a period of time,
however short, evidencing a continuity of purpose.” (§ 527.6, subd. (b)(1); see Harris, at
p. 497; O.B., at pp. 1011–1012.)
2. Protected Speech for a Legitimate Purpose
M.L. contends there was insufficient evidence to support a finding of harassment
based on a course of conduct “directed at a specific person that seriously alarms, annoys,
or harasses the person, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(3).)
M.L. asserts that her conduct had a legitimate purpose and was protected free speech
activity because she “felt she was being hunted” by her mother and E.G., “feared for her
life and the life of her brother,” and “did the only thing she thought she could do to
protect herself” by broadcasting “calls for help” on Instagram and TikTok. M.L.
maintains that her “calls for help” on social media were protected by her First
Amendment right to freedom of speech.
Under the circumstances of this case, whether M.L.’s posts were constitutionally
protected free speech is closely tied to whether the posts were for a legitimate purpose.
As a general principle, “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.) More specifically, harassing
speech that is not constitutionally protected and is made with “no legitimate purpose”
may qualify the protected party for an injunction. (§ 527.6, subd. (b)(1), (2); cf. Hansen
13
v. Volkov (2023) 96 Cal.App.5th 94, 105 (Hansen) [reversing restraining order where e-
mails sent by attorney were constitutionally protected and thus “it was error for the court
to conclude they were properly considered part of a course of conduct of harassment”].)
“Whether a restraining order passes constitutional muster is also a question of law we
consider de novo.” (Parisi, supra, 5 Cal.App.5th at p. 1227.)
In her declaration opposing the restraining order, M.L. stated that after fleeing
Washington and taking refuge at her grandmother’s house in Santa Cruz, a friend
informed her that a neighbor had one of E.G.’s friends visiting and that E.G.’s friend was
there to spy on the children and report back to E.G. M.L. asserted in her declaration that
it was “clear that [E.G.] has continued to stalk [her] and [her] 12-year-old brother and
share this information with” their mother, whom E.G. “was helping” to collect
information about the children’s location. M.L. argued at trial that she acted on a
“reasonable belief, based on [E.G.’s] previous persistent involvement” and on “what
other credible sources” had told her, that E.G. was helping her mother locate her and thus
her posts were “prompted by reasonable fears, intense fears based on [sic] being severely
harmed.” However, E.G. testified that she had not been in touch with M.L. for almost
two years when M.L. posted the first video and had not been in contact with M.L.’s
mother until M.L.’s harassment of E.G. began.
We infer from the trial court’s findings that the court did not credit M.L.’s
statements that E.G. was “stalk[ing]” her and S.L. and that “credible sources” had
informed her that E.G. was working with M.L.’s mom to “spy” on the children and
“ ‘recapture’ ” them. The court’s observation that M.L.’s conduct was “doxxing, as far as
this [c]ourt is concerned” further implies that the court found M.L.’s publication of
E.G.’s photos and contact information in connection with the allegations about E.G. to
14
constitute harassment not for a legitimate purpose.9 It is the province of the fact finder
“to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” (O.B., supra, 9 Cal.5th at pp. 1007–1008.)
On appeal, we do not “reweigh the evidence” but “accept the fact finder’s resolution of
conflicting evidence.” (Id. at p. 1008.)
The trial court’s implied finding that M.L.’s posts were not for a legitimate
purpose is supported by substantial evidence in the record. M.L. presented no evidence,
only conjecture, that E.G. was involved in the family’s affairs at the time M.L. and S.L.
returned to Santa Cruz, let alone sent someone to spy on the children and help their
mother try to “ ‘recapture’ ” them. On the other hand, E.G. testified that she “never
spied” on M.L., had “actively avoided any contact” with M.L.’s father (against whom she
had obtained a stipulated protective order), and “hadn’t been in contact” with M.L.’s
mother until “not very long ago” when M.L.’s harassment of her began. The trial court
resolved this conflicting evidence in E.G.’s favor, finding E.G. “has met [her] burden of
proof by clear and convincing evidence to establish the existence of unlawful harassment
within the meaning of [s]ection 527.6 of the Code of Civil Procedure.”
M.L.’s assertions are further weakened by the findings and orders from the family
law case, of which the trial court appropriately took judicial notice. (See Evid. Code,
9
E.G. argues that doxxing is a misdemeanor under this state’s Penal Code. (Pen.
Code, § 653.2.) Under this section, the law criminalizes electronic distribution of a
harassing message with the intent to place that person in reasonable fear for their safety,
where the electronically published material contains “personal identifying information,
including, but not limited to, a digital image of another person, or an electronic message
of a harassing nature about another person” (id., subd. (a)) and where “ ‘[o]f a harassing
nature’ means of a nature that a reasonable person would consider as seriously alarming,
seriously annoying, seriously tormenting, or seriously terrorizing of the person and that
serves no legitimate purpose.” (Id., subd. (c)(2).) However, the trial court’s indication
that it considered M.L.’s conduct to be “doxxing,” appears to use that term in a colloquial
sense rather than as a specific finding under the definition set out in the Penal Code.
15
§ 452, subd. (d)(1).)10 These findings, which have not been further adjudicated or
disturbed on appeal, discredit M.L.’s claim that her social media posts were “prompted
by reasonable fears, intense fears based on [sic] being severely harmed.” These findings
also undermine M.L.’s claim that her posts were constitutionally protected. While speech
“ ‘on “ ‘matters of public concern’ ” [] is “at the heart of the First Amendment’s
protection” ’ ” (Brekke, supra, 125 Cal.App.4th at p. 1409, quoting Dun & Bradstreet v.
Greenmoss Builders (1985) 472 U.S. 749, 758–759), defamatory speech is not
constitutionally protected. (Brekke, at p. 1409; see Parisi, supra, 5 Cal.App.5th at
p. 1229 [agreeing with the trial court’s implicit conclusion that the restrained party’s
“attacks . . . were false, defamatory, and served no legitimate purpose” and therefore
were not excluded as protected speech from § 527.6]; Balboa Island Village Inn, Inc. v.
Lemen (2007) 40 Cal.4th 1141, 1147 (Lemen) [noting defamation among the “ ‘categories
of communication’ ” to which First Amendment protection does not extend].)
Absent evidence to the contrary, the family court’s prior determination that M.L.’s
accusations against her mother were false and not credible logically extends to M.L.’s
repetition of those accusations in connection with her claims about E.G. In finding
unlawful harassment and evidence of “doxxing,” the trial court implicitly concluded that
M.L. was not credible and was continuing to disseminate a false narrative about her
mother’s abuse and E.G.’s purported support and assistance.
“While First Amendment protection is required for free and uninhibited discussion
of public issues, important social values underlie the law of defamation, and ‘ “[s]ociety
has a pervasive and strong interest in preventing and redressing attacks upon
10
We take judicial notice of the same orders cited by the trial court. (Evid. Code,
§ 459, subd. (a).) These are the December 20, 2022 statement of decision in the family
law case, the December 20, 2022 findings and order after hearing, and the July 28, 2023
findings and order re: minor children’s return to petitioner-father’s residence and related
conduct orders. On our own motion, we order the record augmented with a copy of those
orders. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
16
reputation.” ’ ” (Parisi, supra, 5 Cal.App.5th at p. 1229; Lemen, supra, 40 Cal.4th at
p. 1157 [“[T]he general rule that a defamation may not be enjoined does not apply in a
circumstance . . . in which an injunction is issued to prevent a defendant from repeating
statements that have been judicially determined to be defamatory”].) We conclude that
substantial evidence in the record supports the trial court’s findings (express and implied)
of harassment for no legitimate purpose. We further conclude that M.L.’s social media
posts repeating accusations already adjudicated to be false, and further attempting to link
E.G. to those accusations in a defamatory manner, does not come within the meaning of
“[c]onstitutionally protected activity” under section 527.6, subdivision (b)(1). The trial
court therefore did not err in deeming the social media posts “harassment” within the
meaning of the statute.11
3. Emotional Distress
M.L. also contends that there was “no evidence” that E.G. suffered substantial
emotional distress due to M.L.’s conduct. As explained further below, we decide the
record amply supports the trial court’s finding—implied by its issuance of the order and
express recognition that a finding of substantial emotional distress was required—that
M.L.’s course of conduct “would cause a reasonable person to suffer substantial
emotional distress” and did “actually cause [E.G.] substantial emotional distress.”
(§ 527.6, subd. (b)(3).)
A trial court may infer substantial emotional distress from the nature of the
harassing conduct. (Ensworth, supra, 224 Cal.App.3d at pp. 1110–1111.) Moreover,
“[i]nferences may be drawn not only from the evidence but from the demeanor of
witnesses and their manner of testifying.” (Id. at p. 1110.) When assessing witness
testimony, “ ‘ “ ‘it is the exclusive province of’ ” ’ ” the trial court “ ‘ “ ‘to determine the
11
Because M.L. has not challenged the scope of the restraining order, we need not
address E.G.’s arguments that the restraining order is sufficiently narrowly tailored
consistent with constitutional requirements.
17
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.’ ” ’ ” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) We “may
not insert [our] own views regarding the credibility of witnesses in place of the
assessments conveyed by the judgment.” (O.B., supra, 9 Cal.5th at p. 1008.)
M.L. concedes that E.G. “received disturbing messages” but maintains that these
“do not by themselves demonstrate any emotional distress suffered by” E.G. The record
belies this interpretation of the evidence. The trial court presided over the hearing at
which the parties testified and assessed their demeanor and credibility, as well as the
evidence of the effect of M.L.’s behavior on E.G. and the third party responses it
generated. E.G. testified about the impact of M.L.’s posts to her professional reputation
and on her relationship with clients and former clients, many of whom had viewed the
videos “of [M.L.] slandering [her], talking about fictitious information about [her] sex
life, [and] that [she’s] a child abuser.”
The evidence submitted by E.G. in support of the restraining order showed M.L.’s
posts accusing E.G., as a therapist who works with teens, of “currently dating and
supporting [M.L.’s] mother, a pedophile and child abuser.” E.G. also described at trial
the false reviews posted by third parties to her business listing and the disturbing and
threatening messages she had received as a result of M.L.’s posts. E.G. received
voicemail messages calling her “ ‘a fucking whore ass bitch,’ ” stating they had seen
M.L.’s Instagram “ ‘about [E.G.] and [her] girlfriend raping [M.L.] and putting her in a
hotel at 14, raping a 14-year old,’ ” threatening to “ ‘see if we can’t find somebody to tie
[E.G.] to a hotel bed, [] fucking bitch, raping children,’ ” and warning her she “ ‘better be
fucking paranoid’ ” as they were “ ‘watching her.’ ”
Drawing all reasonable inferences in favor of the trial court’s order, M.L.’s
disturbing accusations against E.G., together with the derogatory and threatening
messages directed at E.G. by those who viewed M.L.’s posts, “would cause a reasonable
person to suffer substantial emotional distress.” (§ 527.6, subd. (b)(3).) Furthermore, as
18
implied by E.G.’s testimony and the trial court’s express finding that E.G. had met her
burden of proof by clear and convincing evidence, we conclude that substantial evidence
in the record supports the implied finding that M.L. did “actually cause [E.G.] substantial
emotional distress.” (Ibid.)
4. Conduct Must Be Likely to Recur
M.L. contends there was insufficient evidence that the course of challenged
conduct was ongoing or likely to recur. She maintains that she had removed the
offending post (or posts, as we have determined ante) in mid-July 2023, more than a
month before the hearing on the restraining order, and that there was “[n]o further
conduct [] alleged beyond the initial post.” She argues that her “voluntary removal of the
post in question” supported the denial of injunctive relief and, furthermore, that the trial
court failed to consider M.L.’s circumstances at the time of the hearing such that there
was no reason to believe she would again post online about E.G. M.L. argues that the
court’s failure to account for these changes is further evidenced by its issuance of
injunctive measures that go beyond M.L. turning 18 years old. M.L. states, “The
conditions that led to [M.L.]’s act of alleged harassment would logically not be possible
to exist after she turned 18 and was no longer in the jurisdiction of the Family Court or
her mother’s custody.”
M.L. correctly points out that a past act of harassment is insufficient to justify a
restraining order. (Harris, supra, 248 Cal.App.4th at p. 499.) “[A]n injunction serves to
prevent future injury and is not applicable to wrongs that have been completed. An
injunction is authorized only when it appears that wrongful acts are likely to recur.”
(Russell, supra, 112 Cal.App.4th at p. 402.) Thus, the statute requires “clear and
convincing evidence that unlawful harassment exists” (§ 527.6, subd. (i), italics added),
“not that it existed in the past.” (Russell, at p. 403, citing § 527.6, former subd. (d).)
“The injunctive relief is not intended to punish the restrained party for past acts of
harassment.” (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 520.)
19
“ ‘[T]he determination of whether it is reasonably probable an unlawful act will be
repeated in the future rests upon the nature of the unlawful violent act evaluated in the
light of the relevant surrounding circumstances of its commission and whether
precipitating circumstances continue to exist so as to establish the likelihood of future
harm.’ ” (Harris, supra, 248 Cal.App.4th at pp. 499–500, quoting Scripps Health v.
Marin (1999) 72 Cal.App.4th 324, 335, fn. 9.) In Scripps, the son of a hospital patient
struck a hospital employee with a door as he attempted to leave a tense meeting with
hospital staff. (Id. at p. 328.) The hospital obtained an order under section 527.8
enjoining the patient’s son from any direct contact with hospital employees. (Id. at
p. 330.) The appellate court reversed the order after concluding there was no evidence
the son was likely to commit further acts of violence against the hospital’s employees.
(Id. at p. 336.) Among other factors, the court noted there was no prior or subsequent
threat of violence by the son against a hospital employee, the temporary restraining order
was vacated when the son stated that he would stay away from the hospital pending the
evidentiary hearing and he abided by this representation, and the mother had since
transferred health insurance making it unlikely she would return as a patient at the
hospital. (Ibid.) The court concluded that “given the circumstances surrounding this
single incident, the evidentiary record does not establish the likelihood [the son] would
repeat any violent acts against [hospital] employees.” (Ibid.)
Similarly in Russell, the appellate court reversed a restraining order based on a
“single incident of battery without finding a threat of future harm” (Russell, supra, 112
Cal.App.4th at p. 401) where the restrained party was an attorney who had followed
opposing counsel into an elevator after an appearance and grabbed his arm. (Id. at
p. 400.) In Hansen, the appellate court reversed a restraining order after concluding that
the restrained party’s harassing letters to opposing counsel were protected speech, and the
only nonprotected conduct consisted of a single “30-minute episode” (Hansen, supra, 96
Cal.App.5th at p. 107) in which the restrained party refused to leave opposing counsel’s
20
office despite knowing that the scheduled deposition had been cancelled. (Ibid.) The
appellate court reasoned that the single incident alone was insufficient to justify a
restraining order. (Ibid.)
The trial court expressly found M.L.’s course of conduct “likely to continue unless
a restraining order prohibits it going forward.” Although the trial court did not identify
the basis for this determination, the evidence at trial necessarily required it to evaluate
conflicting evidence about when the posts were taken down, whether the posted material
was still available online as of a few days before the hearing, and to consider M.L.’s
arguments about what she characterized as E.G.’s continued “emotional[] attach[ment]”
to M.L. and continued support of M.L.’s mother. M.L. asserted at trial that once she was
“safe” (presumably referring to being back in her father’s home), “the online content was
removed.” However, M.L. also testified that she had taken down the TikTok and
Instagram content because of “[t]his restraining order and the belief that it was not
helpful.” According to E.G.’s testimony, at least one of the videos (which was played for
the trial court at the hearing) was still circulating on TikTok only a few days before the
hearing.
Giving “appropriate deference” (O.B., supra, 9 Cal.5th at p. 1011) to the trial
court’s evaluation of credibility and its resolution of conflicts in the evidence, we
conclude substantial evidence in the record supports the court’s determination that a
recurrence of harassment was likely unless it issued an injunction prohibiting future posts
defaming or harassing E.G. Viewed in the light most favorable to the order, M.L. posted
one video to two platforms, followed by another video to two platforms, engaged with
her followers in comments to the posts, removed the post (or posts) only because of the
pending restraining order, and repeated her claims against her mother and E.G. at trial
despite the family court’s prior adjudication rejecting the truthfulness of the underlying
accusations. This conduct supports the court’s finding that M.L.’s course of conduct was
likely to recur absent a restraining order. It also stands in contrast with the type of single
21
or isolated incident courts have found do not justify injunctive relief as described in
Scripps, Russell, and Hansen.
Nevertheless, we are mindful of M.L.’s youth at the time these events transpired
and that the three-year order will extend beyond her 18th birthday. M.L. argues that the
conditions that led to her conduct against E.G. cannot logically exist after she turns 18
years old, since at that point she will not be under the jurisdiction of the family court or
her mother’s custody. She contends that in issuing a three-year restraining order, the trial
court failed to consider the “complete set of circumstances that would have caused the
act[s] and would need to be present to likely cause [those acts] again.” E.G. counters that
because M.L.’s harassment of her is “tied not to [M.L.]’s current custody situation, but to
[M.L.]’s ongoing conflict with her mother,” the trial court correctly ascertained that M.L.
“reasonably might at some point in the future decide to doxx [E.G.] online again.”
Considering the relevant circumstances surrounding M.L.’s harassment of E.G.
“ ‘and whether precipitating circumstances [will] continue to exist so as to establish the
likelihood of future harm’ ” (Harris, supra, 248 Cal.App.4th at pp. 499–500) beyond
M.L.’s 18th year, we conclude there is insufficient evidence in the record to support
continuing the restraining order beyond M.L.’s 18th year. In drawing this conclusion, we
recall that “an appellate court must account for the clear and convincing standard of proof
when addressing a claim that the evidence does not support a finding made under this
standard.” (O.B., supra, 9 Cal.5th at p. 1011.) Consistent with this standard, the
evidence—when viewed in the light most favorable to the prevailing party in the trial
court and giving appropriate deference to the fact finder’s evaluation of credibility
(ibid.)—must be sufficient such that the trial court “ ‘could have found it highly
probable’ ” that M.L. would repeat her unlawful harassment of E.G. even after M.L.
reached the age of majority. (Technology Credit Union v. Rafat (2022) 82 Cal.App.5th
314, 323 [applying the clear and convincing standard articulated in O.B. to a workplace
22
violence restraining order under § 527.8]; see Fam. Code, §§ 6500–6502 [defining,
respectively, the terms “minor,” “adult,” and “ ‘age of majority’ ”].)
As M.L. points out, the circumstances that precipitated her social media posts
were closely tied to the family court case and M.L.’s asserted fear of being returned to
her mother’s custody and thereby subjected to further reunification therapy and alleged
abuse. M.L.’s online dissemination of false and damaging accusations against E.G.
began only when M.L. was “in hiding and in fear” of being returned to her mother.
While there is ample evidence that M.L. began posting about E.G. because she believed
E.G. was still supporting her mother and engaged in conduct to help her mother locate
and retrieve the children, our review of the record discloses insufficient evidence to
support E.G.’s assertion that M.L.’s harassment of her is related not only to her alleged
support of M.L.’s mother in the custody dispute but to M.L.’s general “ongoing conflict
with her mother.”
When M.L. turns 18 years of age, she becomes an adult. (Fam. Code, § 6501.)
She “will then have the right and responsibility to make her own decisions” regarding her
residence and the role of her parents in her life. (Brekke, supra, 125 Cal.App.4th at
p. 1415, [modifying restraining order to expire when the 16-year-old protected party turns
18, at which time she would not be subject to her parents’ “direction and control” as to
whether she associates with the restrained party or elects to renew the injunction].)
Insofar as the evidence shows M.L.’s harassment of E.G. was closely tied to her belief
about E.G.’s alleged continuing support of M.L.’s mother in her custody battle with
M.L.’s father, we decide it is “ ‘reasonably probable an unlawful act will be repeated in
the future’ ” (Harris, supra, 248 Cal.App.4th at p. 499) only so long as M.L. remains a
minor subject to the custody dispute between her parents. We will therefore modify the
injunction to expire on M.L.’s 18th birthday.
23
III. DISPOSITION
The September 5, 2023 civil harassment restraining order is modified to expire on
January 27, 2025, and is affirmed as modified. The trial court is directed to transmit a
copy of the modified order for entry into the California Restraining and Protective Order
System (CARPOS) through the California Law Enforcement Telecommunications
System (CLETS). (Fam. Code, § 6380.) In the interest of justice, the parties shall bear
their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
24
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P. J.
____________________________________
Bromberg, J.
H051526
E.G. v. M.L.
Filed 10/3/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
E.G., H051526
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 23CV01723)
v.
M.L.,
Defendant and Appellant.
BY THE COURT:
The opinion in this case filed September 9, 2024, was not certified for publication.
After the court’s review of a request under California Rules of Court, rule 8.1120(a), and
it appearing that the opinion meets the standards for publication under California Rules of
Court, rule 8.1105(c)(2) and (6), it is therefore ordered that the opinion be published in
the Official Reports.
1
______________________________________
Danner, J.
_____________________________________
Bamattre-Manoukian, Acting P. J.
_____________________________________
Bromberg, J.
H051526
E.G. v. M.L.
2
Trial Court: Santa Cruz County Superior Court
Trial Judge: The Honorable Jordan Sheinbaum
M.L., in pro. per., for Defendant and Appellant.
E.G., in pro. per., for Plaintiff and Respondent.
H051526
E.G. v. M.L.
3