Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07WL01167, John M. Watson, Judge.
Melissa Jo Rodriguez, in pro. per., for Defendant and Appellant.
Robyn Devereaux, in pro. per., for Plaintiff and Defendant.
OPINION
O’LEARY, ACTING P. J.
Melissa Jo Rodriguez (Rodriguez) appeals from a restraining order obtained by Robyn Devereaux (Devereaux) under Code of Civil Procedure section 527.6. We have reviewed the record provided to us and, on our own motion, took judicial notice of the superior court file. We also took judicial notice of Devereaux’s vexatious litigant status when she filed the underlying petition, a fact the trial court apparently was not aware of when it made its ruling.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On appeal, Rodriguez argues the order must be reversed because the proceedings were extremely unfair, stating, “I arrived with my full response along with my exhibits, my witnesses, and full declarations from both myself and my mother,” but the trial court would not consider any of it. The court granted the restraining order after a brief hearing during which it quickly confirmed neither Rodriguez nor Devereaux desired to have any further contact with each other.
We appreciate the workload faced by our trial court colleagues and the need to expedite matters whenever possible. But the court’s rapid disposition of this case denied the litigants due process. Given the fact the court was unaware of Devereaux’s vexatious litigant status, and the court did not review the submitted exhibits, or hear the parties’ testimony about the alleged incidents of harassment, we have no confidence in the ruling. Accordingly, we reverse the restraining order.
Facts and Procedural Background
We endeavored to summarize the facts, as best we could, given the multiple deficiencies in both party’s briefs. We have largely ignored the many pointless and inflammatory comments contained in the briefs. For our purpose, the salient facts are as follows:
Rodriguez and Devereaux first met in an Internet chat room. Suffice it to say, after several months of friendship, the two women had a disagreement and began waging a war of words over the Internet and telephone lines.
On February 22, 2007, Devereaux petitioned the trial court for a restraining order under section 527.6 to stop Rodriguez’s harassment. She claimed to have stopped all contact with Rodriguez on March 25, 2006, but Rodriguez had continued to “terrorize and torment” her. In her supporting declaration, Devereaux claimed Rodriguez had been on a “campaign of slander [and] libel” in the online support community in which Devereaux was “an active and recognized member.” Devereaux asserted Rodriguez was “a former employee of the California Highway Patrol and she [had] intimated that she [had] the power to subject [Devereaux] to police harassment and injury because of her friendships with other CHP officers.” Devereaux said she felt frightened because Rodriguez had experience with guns and firearms. Devereaux believed Rodriguez had been stalking her and illegally placed her under surveillance. It was alleged Rodriguez posted Devereaux’s confidential driver’s license information on “her MySpace Web site in a deliberate attempt to endanger [Devereaux’s] life.” Finally, Devereaux complained Rodriguez had threatened to publish her “domestic employee’s home address on various Internet Web sites such as MySpace in order to place our lives in danger of stalkers and others intent on doing harm to me and my household caretakers.”
However, the copies of e-mails attached to Devereaux’s petition suggested there was more to the story. In the e-mails both women claimed to be victimized by the other. They blamed each other for negative anonymous postings on the Internet. They both repeatedly stated they feared for their safety.
For example, Devereaux threatened Rodriguez in one e-mail: “I have three people watching the board and you will pay dearly for your continued harassment. [¶] We will have a confrontation about this next week. . . .” She later noted, “Oh, and let me end with some food for thought. Think about the fraud and deceit in your own life before you lodge defamatory and imaginary accusations against me. I have a VERY long memory. Your comment about a ‘tangled web and deceit’ applies to YOU!!! You confessed to me about committing fraud and deceit in the timing and disbursement of your divorce settlement monies owed to your ex-husband because you wanted to pay Dr. Kent for your breast implants before the funds were legally available. Take the log out of your eye before you make false character accusations against me. [¶] HEED MY WARNING – KEEP MY NAME OUT OF YOUR MOUTH, OFF YOUR TONGUE AND AWAY FROM YOUR KEYBOARD.” Rodriguez replied: “I will take this as a threat. And you will be stopped. You don’t scare me with your antics. Do you understand that? You DO NOT scare me. Your behavior is sickening. . . .”
The clerk’s transcript also included an e-mail Rodriguez sent to a representative of http://www.obesityhelp.com (OH) stating she was still being harassed and threatened by Devereaux. She stated, “I had asked my profile from OH pulled months ago. You guys could not keep our community safe from her as she kept signing up under alias names. But please know that if I end up in court because of her constant threats I will be asking to have any and all of mine and her posts subpoenaed. . . . She was the one removed but continues to participate [on OH].” Rodriguez added, “She has tormented my mother, [and] made horrible statements about my son with a disability. . . . I fear for my family’s safety.” Devereaux somehow obtained and forwarded this e-mail to Rodriguez’s former divorce attorney demanding she tell her client, Rodriguez, to cease and desist. Devereaux begins the e-mail with, “I am convinced that your client . . . is mentally ill.”
Although Rodriguez asserted in her appellate briefs that she brought documents to the hearing to rebut Devereaux’s allegations, none of this information was contained in our record. From the reporter’s transcript we find evidence Rodriguez appeared at the hearing, and submitted some documents. The court confirmed it had received the response, and it commented the case file was very thick.
We have taken judicial notice of the superior court file. Rodriguez in fact submitted a large quantity of documents and several declarations. On the top of her stack of papers was a copy of a page from http://www.occourts.org, showing a long list of 21 cases involving Devereaux (five of which she proceeded in propria persona as the plaintiff). Rodriguez included some of the same e-mails submitted by Devereaux, and added some new ones. For example, Rodriguez included a blanket e-mail she circulated in April 2006 to her friends at OH stating she was being harassed by someone, and asking her friends to be cautious. Rodriguez explained, “SHE WILL NOT STOP as long as she has willing ears to listen. And I promise you with all that I am . . . there is sooooo much evil in this you can’t imagine. Fake e-mails, lies . . . things too long to go into here. I was warned long ago however I do not take on others battles. I treat people how I like to be treated . . . . But once someone goes so far as to make up these e-mails and harass me and my family and friends I’M Done. . . .”
In February 2007, Rodriguez wrote Devereux a lengthy e-mail asking her to stop harassing her family. She wrote, “You are searching for reasons to lash out your unhappiness. And personally I’m bored with it. You pulled my public record for my divorce. You lied to others and said that my parents paid for my [plastic surgery] and I lied to them[, w]hich wasn’t true. You have sent my mother ongoing harassing e-mails and threatened them with monetary things. . . . You state you have contacted the police, well trust me when I tell you so have I. I do not participate on OH. Nor do I have contact with hardly any of the OH crew. . . . Again leave me and my family alone. I find it quite PATHETIC that you would use terms like fucktard trying to take a jab at my kid . . . . Everything you have accused me of you yourself are guilty of. . . . Stop harassing my family, enough is enough.”
In another e-mail dated February 2007, Rodriguez wrote, “You have since April of [20]06 been on a campaign to cyber stalk me and harass my family. I have on numerous occasions requested you cease and dissect [sic]. You have gone so far as to look up my public record. And today you e-mail my divorce attorney. This was the final straw. . . . But be prepared that long ago I contacted OH and requested any and all posts I have ever made on that network be saved. . . . [I can] have yours subpoenaed to court. In addition, I believe that [M]y[S]pace can also pull all prior posts. . . . I have copies of your many threats you list on [M]y[S]pace about [‘]Dear God please make everyone die[’] and your references to hurting someone. I believe this can constitute possibly . . . a terrorist threat. I also believe that your last e-mail to my mother in [making] demands of monetary value is extortion. . . . [¶] . . . [¶] For the last time[,] leave me and my family alone. Your issues have me very concerned for our safety.”
Rodriguez also submitted e-mail correspondence she exchanged with a City of Cypress police detective. In October, the detective reviewed some of Devereaux’s e-mails, and he opined it did not amount to cyber stalking. He suggested Rodriguez seek a restraining order and contact AOL (Devereux’s Web site domain company). The officer advised Rodriguez to keep track of everything in case things got worse. Four months later, in February 2007, Rodriguez contacted the detective again complaining Devereaux had “stepped up her stalking level” and she wanted advice on how to stop it. Rodriguez stated she was a retired dispatcher and, “I truly am fearful for my safety and that of my children. Especially my son with autism. . . . I cannot live in constant fear of this 5150. Any advice would be appreciated[.]” The detective forwarded her a copy of Penal Code section 646.9 (stalking), but added that perhaps her only recourse was to seek a civil penalty or a restraining order.
Rodriguez also submitted angry and threatening e-mails Devereaux had sent to other people, including her divorce attorney. In short, Devereaux made repeated demands the attorney take control of Rodriguez and make her stipulate to the three-year permanent injunction. In addition, Rodriguez submitted a declaration of Toni Towe, another OH member. Towe attested that after trying to intervene in the dispute between Rodriguez and Devereaux, she also became a target for Devereaux: “[F]or over a year, . . . Devereaux has sent more than 100 e-mails including attachments (enough to crash my HR reps computer) to my HR representatives . . . at the corporation I work for. . . . These e-mails contained even more false accusations of harassment. [¶] . . . Devereaux followed me from Web site to Web site ([OH], MySpace, and a friend’s personal blog) copying what I wrote and twisting them around to make [it] sound like I was harassing her. . . .” She attached several e-mails written by Devereaux to Towe’s employer, threatening to sue the company based on the allegation Towe was using a workplace computer to send harassing e-mails. The employer replied by e-mail, informing Devereaux it had investigated the issue and found no misuse of company equipment. This prompted Devereaux to send more e-mails threatening to sue.
Despite the large amount of evidence and numerous disputed issues, the court held only a brief hearing on the matter. The court did not inquire about the allegations asserted in the petition, but rather commented there was a “fairly detailed request” and a “fairly detailed response” and then it asked Rodriguez if there was any reason why she should have anything to do with Devereaux. Rodriguez replied, “Absolutely not.” The court inquired, “Then why don’t we just agree that you won’t?” It then explained Devereaux “has suggested, and I haven’t reviewed it yet – substantial amount of computer printout stuff here – that you’re putting some information that has something to do with her – and I haven’t looked at it to see if it’s personal or not personal or whatever, but if you don’t have any reason to have anything to do with her . . . it is over, it’s in the past, you’re not going to see each other in the normal course of events . . . .”
The court then granted Devereaux permission to speak, but first told her the court did not have the power to change the past, what happened in the past does not matter, and “now I want to talk about the future.” Devereaux attempted to discuss an allegation of harassment raised in her petition, but the court replied, “I think that’s kind of in the past.” Devereaux stated she was afraid that despite Rodriguez’s promises in court, she was not going to be left alone. The court assured Devereaux that if Rodriguez continued to contact her then Rodriguez would be held in contempt of court.
The court allowed Rodriguez an opportunity to respond, but advised, “You can say anything you want then, assuming it’s going to have to do with the future.” Rodriguez stated Devereux still sends her threatening e-mails through “third parties” and “continues to use my son who is autistic.” Rodriguez said she feared for the safety of her children. She believed Devereaux had the ability to tamper with her computer and she wanted the court to order Devereaux to leave her, her family, and divorce lawyer alone. In response, the court asked Rodriguez, “We’re not talking about the past, are we?” It then asked Rodriguez why she had not filed a restraining order.
Rodriguez asserted she had tried to get a restraining order at Harbor Court, but was advised “cyber talking doesn’t constitute a restraining order.” The court told Rodriguez she was confusing terms because “it may constitute behavior that would lead to a restraining order.” The court reminded Rodriguez that because she had not filed a petition for a restraining order, it would violate due process and principles of fairness to restrain Devereaux in any respect without prior notice.
Rodriguez then attempted to refute the allegations made against her, but the trial court quickly cut her off, stating, “Why don’t you sit here until 5:00 o’clock today and you can both argue with each other until you really have it all out. So you’re mad at each other. That’s why these things go on so long. [¶] . . . There’s a matter that’s underlying the resentment between the two of you and you want to occupy the court on that, but it can’t change anything.” It then granted Devereaux’s written request and denied Rodriguez’s oral request for a restraining order. In parting, the court added, “That’s all I’ll give. I’m done, overall. I’ve done all I’m going to do whether you stand in front of me for the next two weeks. I’m still going to say ‘Granted, Denied.’ Talk as long as you want. Come back at 5:00. I’ll go all weekend and maybe everybody in the room will come back at 5:00 and listen to you all weekend.”
The court executed a three-year restraining order stating Rodriguez must stay at least 100 yards away from Devereaux and she was restrained from posting or publishing personal information about Devereaux on the Internet or to any third party. Rodriguez appealed.
Our case file is also very thick due to the number of motions filed by the parties, especially Devereaux. Before Rodriguez filed her opening brief, she sought leave to file exhibits. Devereaux filed an opposition and also moved to strike the not yet filed opening brief. She requested sanctions and dismissal of the appeal. All these motions were denied.
After the appellant’s and respondent’s briefs were filed, Rodriguez filed a request for judicial notice and also moved to dismiss the respondent’s brief. These motions were denied. Next, Devereaux filed a letter seeking an oral argument date “as far in advance as possible[]” to allow the court time to consider the two dismissal motions she planned to file. Rodriguez immediately filed an opposition to the request to delay oral argument. The case was set for the next available oral argument date in March 2008.
One month later, Devereaux moved for an involuntary dismissal claiming Rodriguez had obtained a fraudulent fee waiver. The motion was denied. The next week, Devereaux moved to dismiss the appeal on the grounds of abandonment, and she requested sanctions. This motion was also denied, and in the same order, we took judicial notice of Devereux’s status as a vexatious litigant on the Judicial Council’s list. Because it was apparent Devereaux had failed to comply with section 391.7’s requirement that vexatious litigants seek leave of court before filing a petition for a restraining order, we invited the parties to submit supplemental briefs on whether this violation alone compelled reversal. We continued the oral argument to May 2008.
The parties submitted letter briefs in response to our order. Attached to Rodriguez’s letter was a copy of a declaration she filed with the superior court one year earlier stating she had discovered Devereaux was a vexatious litigant, and requesting relief from the restraining order. The court took no action because the request was filed after Rodriguez had filed her notice of appeal. There is a handwritten notation on the right side margin of the declaration stating, “4/17/07 – per Judge Boris this case is under the jurisdiction of the appellate depart[ment].”
A few days after the letter briefs were due, Rodriguez filed an application to submit an exhibit to her prior letter brief. Specifically, Rodriguez desired to attach a copy of the nine-page supplemental letter brief she received from Devereaux, which was substantially different from the 43-page supplemental letter brief Devereaux filed with the court. We ordered the matter to be decided in conjunction with the appeal.
Approximately one week before oral argument in this court, Devereaux filed a request for judicial notice of a court order purportedly removing her name from the vexatious litigant list, and a copy of the new list which no longer contains her name. A few days later, Rodriguez filed a request to file a motion to place Devereaux back on the list. She also filed a response to the last-minute request for judicial notice, noting the order at issue had been made on April 10, 2008, and Devereaux waited until May 19 (one week before argument) to purposely thwart any meaningful opposition. She questioned whether the order was a fake.
On the day of oral argument, May 27, Devereaux submitted three more documents. First, a 34-page discussion of “Rodriguez’s ongoing fraud on the court” that explains why Devereaux believes Rodriguez is a “pathological liar.” Second, a request this court take judicial notice of a single rule, located in the California Rules of Court, and deny as untimely Rodriguez’s motion to place her back on the vexatious litigant list. Third, a letter Devereaux stated she intended to send with her earlier letter brief, which explains how Rodriguez “has been submitting perjurious proofs of service to this court.” All of Devereaux’s documents, including these last three, contain pages and pages of inflammatory, harassing, and ludicrous statements (e.g., “Like I said before the only time . . . Rodriguez had an original idea she flushed it down the toilet bowl. Thank you Stephen King!”).
On June 10, 2008, we marked as received, not filed, Devereaux’s request for an order striking Rodriguez’s application to place her on the vexatious litigant list, or alternatively an application for an extension of time to respond. The appeal has been submitted, and we will not consider it.
Analysis
“Section 527.6 permits a person who has suffered harassment to seek an injunction. It was enacted ‘“to protect the individual’s right to pursue safety, happiness[,] and privacy as guaranteed by the California Constitution.”’ [Citation.] When a party seeks such an injunction, the court must hold a hearing, receive relevant testimony, and issue the injunction if it finds, by clear and convincing evidence, that harassment exists. (§ 527.6, subd. (d).) Any willful disobedience of such an injunction is punishable as a misdemeanor. (§ 527.6, subds. (d), (h), (i).)” (Nora v. Kaddo (2004) 116 Cal.App.4th 1026, 1028 (Nora).)
“‘[A]lthough the procedures set forth in the harassment statute are expedited, they contain certain important due process standards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by “clear and convincing” proof. . . .’ [Citations.]” (Nora, supra, 116 Cal.App.4th at p. 1028.)
We find Nora, supra, 116 Cal.App.4th 1026 , instructive. In that case, “Both parties sought to present testimony in addition to the declarations and exhibits attached to the petition. The trial court indicated that testimony was unnecessary, as it was prepared to rule on the papers presented by the parties.” (Id. at pp. 1028-1029, fn. omitted.) The appellate court concluded, “This ruling deprived both parties of important rights that the statute expressly preserved to them. [Citations.] [¶] ‘[T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by . . . section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant’s due process rights . . . .’ [Citation.] [¶] The procedure adopted by the trial court deprived both parties of their rights in this matter. [The petitioner] was not given the full opportunity to present his case, and [the respondent] was deprived of his right to defend.” (Ibid.)
We note the trial judge in Nora, supra, is the same trial judge in this case.
Here, the trial court admitted it had not reviewed the evidence, it limited the testimony of the parties (often interrupting them) to issues and questions about their future contacts, and it refused to entertain any discussion or argument about the underlying harassment allegations. In adopting this procedure, Devereux was not given the full opportunity to present her case, and perhaps more importantly, in a case filed by a vexatious litigant, Rodriguez was totally denied any right to defend herself. Her pleas to the court for protection from Devereux were correctly denied due to her failure to file her own petition, but perhaps Rodriguez’s request should have prompted the trial judge to slow down and evaluate whether there was clear and convincing evidence Devereaux was really a blameless victim in this dispute. The restraining order must be reversed and remanded for a full hearing on whether there is clear and convincing evidence of harassment.
Devereaux’s Vexatious Litigant Status
We recognize the trial court was unaware of Devereaux’s status as a vexatious litigant. The court’s clerk did not timely discover this fact, and Rodriguez (proceeding in propria persona) did not discover it until after her appeal was filed. However, Devereaux admits she was aware of her duties under section 391.7 and claims “it has been [her] pattern and practice to seek judicial permission before commending new . . . litigation to avoid subsequent dismissal and/or sanctions.” She offers several excuses in her letter brief as to why she ignored her duties under the rules, but none are persuasive.
Rodriguez submitted a lengthy printout of all the cases involving Devereaux litigating as a propria persona plaintiffs which, in addition to other documents submitted by the parties, could possibly have alerted the court to her status as a vexatious litigant. Had the court taken a little time to review the matter, it is likely Devereaux’s status as a vexatious litigant would have been discovered in a more timely manner.
In Devereaux’s letter brief, she asks this court to take judicial notice of her compliance with the prefiling order in other cases. This request is denied as the evidence is irrelevant to the issues raised in this case.
First, Devereux maintains she was not subject to a prefiling order when seeking an injunction against harassment because the law was designed to provide immediate relief to victims of harassment. Not so. While most victims are provided a speedy remedy, victims who also happen to be vexatious litigants are required to take additional procedural steps due to their history of misusing the judicial process.
The purpose of the vexatious litigant statutory scheme is to deal with the costs and problems created by the unrelenting litigant who constantly has a number of groundless actions pending. If safeguards are not kept in place with respect to civil harassment restraining orders, the unfortunate defendant who has become the “target of one of these obsessive and persistent litigants” may suffer serious financial consequences in defending themselves, or worse, find themselves unreasonably subjected to restraining orders backed by the threat of criminal penalties. (See First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867-868.) The prefiling requirement is akin to a licensing or permit system, which constitutes a practical means of managing competing uses of public facilities. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60.) A vexatious litigant who is truly the victim of harassment shall have their day in court after satisfying the judge that “it appears that the litigation has merit and has not been filed for the purposes of harassment or delay.” (§ 391.7, subd. (b).)
We reject Devereaux’s attempt to analogize harassment injunction proceedings with small claim actions to support her argument section 391.7 does not apply. The two are not comparable. The entry of a small monetary judgment does not impede or restrict one’s personal rights after entry of a harassment injunction. Moreover, the refusal to pay a monetary judgment does not result in criminal penalties, but violation of the injunction is punishable as a misdemeanor. Because more civil liberties are at stake in injunction proceedings, the safeguards afforded by section 391.7 must be applied.
Alternatively, Devereaux sees this appeal as an opportunity to reargue the merits of the vexatious litigant order. She not only questions its validity, she also complains it is “unjust to brand [her] with a scarlet ‘V’ of a 1991 default [vexatious litigant] order in perpetuity.” We do not appreciate the unnecessary drama or the blatant disregard for our most basic rules of appellate procedure. Apparently, it is necessary to remind Devereaux she is not an appellant. Consequently, her arguments seeking affirmative relief from the 1991 order declaring her a vexatious litigant are improper. (See Luckett v. Panos (2008) 161 Cal.App.4th 77, 81-86 [procedure to seek review of prefiling order].) She fails to appreciate the only relevant fact is that she was on the list when she filed her petition. We note, Devereaux’s offensive conduct in this appeal, in filing three frivolous motions to dismiss, misrepresenting the record, and using unnecessary inflammatory language looks to be that of an obsessive and persistant vexatious litigant.
We deny Devereaux’s request for judicial notice of an order allegedly relating to her revised vexatious litigant status. It is irrelevant. For purposes of this appeal, all that mattered was her status at the time she filed the petition for a restraining order.
Ordinarily, “[d]isobedience of the order by a vexatious litigant may be punished as a contempt of court.” (§ 391.7, subd. (a).) On appeal, Devereaux argues her failure to comply with the rules should not serve as grounds for reversal because, “The restraining order was issued in favor of [her] after a full hearing on the merits with a judicial finding of clear and convincing evidence of . . . Rodriguez’s unlawful harassment.” We find her summary of the record to be deceitful, and the argument disingenuous. As noted above, the reporter’s transcript clearly reflects there was no hearing on the merits. Devereaux herself was not permitted to present evidence of the purported harassment. Obviously, there was not a judicial finding of clear and convincing evidence of harassment. We strongly caution Devereaux against making such false representations in the future because one’s credibility is of great consequence in the courts.
Disposition
The restraining order is reversed and remanded to permit a full hearing on the truth of the harassment allegations. We will leave it to the trial court to decide in its discretion, what sanctions, if any, should be imposed for Devereaux’s flagrant disregard of the court’s vexatious litigant order requiring her to obtain leave before filing her petition for a restraining order. (§ 391.7.)
Rodriguez’s application to submit exhibits is denied because the question of whether Devereaux sent two different versions of her letter brief does not need to be resolved for us to dispose of this appeal. Devereaux’s request for judicial notice of a Los Angeles Superior Court order purporting to change her status is denied as irrelevant. Her request for judicial notice of the documents attached to her letter brief are also denied as irrelevant. Likewise, Rodriguez’s request to file a motion to place Devereaux on the vexatious litigant list is denied. On a final note, we will not resolve the issues raised in documents this court received, but did not file.
Rodriguez shall recover her costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.
Based on this ruling, the five other motions filed and received in response to the above request for judicial notice are denied as moot. The trial court on remand will be in a better position to take new evidence and facts to determine the question of Devereaux’s current vexatious litigant status.