Thompson CA1/1

Filed 6/25/15 Thompson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
ERIN THOMPSON,
Plaintiff and Respondent,
A134728
v.
W. B. COYLE et al., (San Francisco City & County
Super. Ct. No. CCH11572687)
Defendants and Appellants.
Defendants W.B. Coyle and David Gladstone appeal from restraining orders
issued pursuant to Code of Civil Procedure section 527.6,1 prohibiting them from
harassing and requiring that they stay 100 yards away from, plaintiff Erin Thompson and
her mother, Barbara Thompson. They contend the restraining orders are not supported by
substantial evidence, interfere with their First Amendment free speech rights, and are
overbroad. We affirm.2
Thompson was formerly an employee of Coyle, who was then a real estate broker
and developer. Gladstone worked with Coyle. After Thompson left Coyle’s employment
to start her own real estate business, she sought restraining orders and injunctions against
the two men, claiming they were waging an increasingly aggressive campaign of
harassment and intimidation. Thompson claimed the situation had gotten so bad, she was
1
All further statutory citations are to the Code of Civil Procedure unless
otherwise indicated.
2
We conclude this matter is proper for disposition by memorandum opinion in
accordance with California Rules of Court, standard 8.1.
1
fearful of her personal safety. The court issued temporary restraining orders on
October 12, 2011, and reissued them when Thompson encountered difficulties serving
Coyle.
The court subsequently held a full hearing on Thompson’s petition for injunctive
relief on December 16. At the conclusion of the hearing, the court granted the petition,
finding by clear and convincing evidence that defendants’ conduct constituted unlawful
harassment under section 527.6. The court accordingly issued injunctions on Judicial
Council Form, prohibiting defendants from coming within 100 yards of Thompson, her
mother, or real estate open houses Thompson holds. As to Coyle, the court subsequently
modified the injunction to allow closer contact for “litigation-related activities” in
lawsuits involving Thompson and Coyle.
Defendants filed notices of appeal on February 14, 2012. A lengthy delay in the
appellate process then ensued due to defendants’ egregious delays in securing a settled
statement in lieu of a reporter’s transcript of the December 16, 2011, merits hearing on
Thompson’s petition. The settled statement was finally filed with this court on March 27,
2014. Thompson filed her respondent’s brief in August 2014; defendants filed no closing
brief.
Substantial Evidence
When the court issued the injunctions in December 2011, section 527.6 provided
in relevant part:
“(b) For purposes of this section, ‘harassment’ is unlawful violence, a credible
threat of violence, or 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 such as would cause
a reasonable person to suffer substantial emotional distress, and must actually
cause substantial emotional distress to the plaintiff.
“As used in this subdivision:
“(1) ‘Unlawful violence’ is any assault or battery, or stalking as prohibited in
Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense
or defense of others.
2
“(2) ‘Credible threat of violence’ is a knowing and willful statement or course of
conduct that would place a reasonable person in fear for his or her safety, or the
safety of his or her immediate family, and that serves no legitimate purpose.
“(3) ‘Course of conduct’ is 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,
fax, or computer e-mail. Constitutionally protected activity is not included within
the meaning of ‘course of conduct.’
[¶] . . .
“(d) . . . At the hearing, the judge shall receive any testimony that is relevant, and
may make an independent inquiry. If the judge finds by clear and convincing
evidence that unlawful harassment exists, an injunction shall issue prohibiting the
harassment. An injunction issued pursuant to this section shall have a duration of
not more than three years. . . .” (Former § 527.6.)
“The appropriate test on appeal is whether the findings (express and implied)” that
support the issuance of an injunction “are justified by substantial evidence in the record.”
(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 (R.D.); Bookout v. Nielsen (2007)
155 Cal.App.4th 1131, 1137–1138 [section 527.6 injunctions are reviewed to determine
whether factual findings are supported by substantial evidence; trial court’s determination
of controverted facts will not be disturbed on appeal].) “But whether the facts, when
construed most favorably in [the victim’s] favor, are legally sufficient to constitute civil
harassment under section 527.6, and whether the restraining order passes constitutional
muster, are questions of law subject to de novo review.” (R.D., at p. 188.)
While defendants contend Thompson failed to present any clear and convincing
evidence of harassment, that is not the case. In her declaration in support of her petition,
Thompson testified she became increasingly concerned about Coyle’s business practices,
which she viewed as abusive and dishonest. When she indicated she intended to leave
the company, Coyle would comment he would not “allow” her to leave. In April 2011,
she finally decided to accept an opportunity to go into business with a former client.
3
After four months of attempting to negotiate an amicable parting of the ways, Thompson
left in August in the face of Coyle’s bullying and coercion. During this time, Coyle’s
continuing threats that he would not “allow” her to leave and increasingly erratic
behavior began to frighten her. When Thompson announced she was leaving, Coyle
screamed at her, “ ‘I’m going to inflict a lot of pain on you if you leave without an
agreement . . . .’ ” He told her, “ ‘I interpret your actions as a declaration of war,’” and
threatened, “ ‘I’m going to make you suffer,’ ” “ ‘You will be sorry,’ ” and “You know
how crazy I am.’ ” He also sent abusive text messages, saying for example, “[t]here will
be a lot of pain and scaring in the process” of Thompson’s leaving, and “U have made an
enemy u will regret.”
Coyle and Gladstone then did exactly what Coyle had threatened—embarked on a
campaign to intimidate Thompson. Beginning on September 18, and every Sunday and
Tuesday thereafter until the restraining order issued, Coyle and Gladstone appeared just
outside Thompson’s open houses. The first time, Coyle threatened, “ ‘I’m going to make
you feel pain. I’m going to make you suffer.’ ”
On subsequent dates, Coyle arranged for day laborers to loiter outside the open
houses, engaging in “catcalls,” whistles, and hooting and yelling. They also stared at
Thompson. Gladstone, in turn, started using a bullhorn/megaphone which blared a
recording of Coyle’s voice saying, “Erin Thompson is a thief!” Gladstone played it
anytime anyone walked by the open houses. Then, the day laborers started holding a sign
also accusing Thompson of being a thief, while Gladstone sat in a truck parked across the
street. At one point Thompson’s mother overheard Gladstone talking a cell phone and
saying, “ ‘Yeah, it’s working. She’s really scared!’ ” At a subsequent open house,
Gladstone appeared on the sidewalk along with one of the day laborers and threatened
Thompson, “ ‘I’m gonna get you. You’re gonna be sorry.’ ” At another, he threatened,
“ ‘We’re gonna get you.’ ” Even after he was served with the temporary restraining
4
order, Gladstone continued to follow Thompson to her open houses and to threaten her.
Thompson, who was alone at her open houses, testified she felt intimidated and afraid.
In the face of Thompson’s and her mother’s testimony, which the court credited,
Coyle’s and Gladstone’s substantial evidence challenge and claim this was a mere
“business dispute” is meritless. Even if their campaign against Thompson arose from a
“business dispute,” it does not change the fact that their conduct fell well within the
definition of “harassment” actionable under section 527.6. Indeed, their conduct is a
classic example of the kind of harassing “course of conduct” this statute is designed to
protect against—repeated threats and acts of intimidation directed at an individual, which
seriously annoys or alarms him or her and causes substantial emotional distress, as it
would to any reasonable person. (See Brekke v. Wills (2005) 125 Cal.App.4th 1400,
1413–1415 (Brekke) [three “vile and vitriolic letters” to girlfriend sent with intent that
mother see them].)
Nor do the restraining orders violate Coyle’s and Gladstone’s First Amendment
rights. The orders do not mention or explicitly prohibit them from engaging in any
particular form of speech with respect to Thompson—including the sorts of threats and
intimidation which she complained in her petition. They do not mention or prohibit
Coyle and Gladstone from making statements on any subject or of any content, as long as
they do so at a distance, and the statements’ contents do not constitute illegal harassment
within the meaning of section 527.6. Indeed, Thompson made clear that she was not
asking for any content-based relief, and wanted only that defendants be kept away from
her. The restraining orders thus cannot be accurately characterized as content-based
prohibitions on speech. (R.D., supra, 202 Cal.App.4th at p. 191.)
Coyle and Gladstone were not engaged in “peaceful picketing,” and their reliance
on Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528,3 is misplaced. In
3
Disapproved on other grounds by Kowis v. Howard (1992) 3 Cal.4th 888, 898.
5
that case, the unhappy purchaser of a new home posted signs in her yard complaining
about the developer and on two weekends passed out leaflets in front of the model homes
and spoke to prospective buyers trying to discourage them from buying homes. The
developer sought and was granted a preliminary injunction. The injunction was not
issued under section 527.6, but rather, as preliminary relief in a lawsuit for interference
with business interests. Reviewing the traditional balancing factors, the Court of Appeal
reversed on the ground the content based preliminary injunction unduly interfered with
the defendant’s speech rights, which were not overridden by any other factors. (Paradise
Hills Associates v. Procel, at pp. 1542–1547.) The circumstances in the instant case are
entirely different.
There likewise is no merit to defendants assertion the restraining orders are
unconstitutionally “overbroad” because of the 100-yard stay-away from Thompson and
her mother, including from all of Thompson’s “open houses.” Defendants complain they
would need to “monitor” Thompson’s open houses and determine where they are in order
to comply, and they might unintentionally violate the order. This is a specious argument.
Such stay-away orders are entirely permissible, and given the circumstances of this case,
entirely appropriate. (See R.D., supra, 202 Cal.App.4th at p. 191 [100-yard stay-away
order]; Brekke, supra, 125 Cal.App.4th at p. 1404 [100-yard stay-away order].)
Costs and Attorney Fees
Thompson asks for an award of costs, including attorney fees, on appeal pursuant
to section 527.6, subdivision (r). Given the complete lack of merit to Coyle and
Gladstone’s appeal, we exercise our discretion and award such costs and fees. Assuming
Thompson timely files a memorandum of costs and motion for attorney fees, the trial
court is to determine the amount of recoverable costs and reasonable attorney fees
incurred on appeal and award such costs and fees, as well as any recoverable costs and
attorney fees incurred on remand in seeking such costs and fees.
6
DISPOSITION
The restraining orders issued December 16, 2011, are affirmed. Respondent is
entitled to recover costs, including reasonable attorney fees, on appeal. The amount of
recoverable costs and reasonable fees on appeal, including the costs and fees incurred on
remand in seeking such costs and fees, is left for determination by the trial court.
7
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Dondero, J.
8