Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS122572, David S. Cunningham III, Judge.
Martin Reiner, in pro. per., for Defendant and Appellant.
Livingston Bakhtiar and David M. Livingston for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Martin Reiner, an attorney in propria persona, appeals from the order enjoining him from harassing plaintiff, Susan Kaplan, who has been opposing counsel in the past. (Code Civ. Proc., § 527.6.) Because the evidence supports the order, we affirm.
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Reiner and Kaplan are both attorneys practicing in the area of worker’s compensation law and have been opposing counsel on several matters. Kaplan works with the law firm of Graiwer & Kaplan. Reiner is a sole practitioner.
On September 18, 2009, Kaplan filed a motion for a harassment restraining order (§ 527.6) against Reiner, who was then the opposing counsel on a case. In support of that motion, Kaplan submitted her declaration in which she described the events of September 6, 2009. She declared that: Reiner came into Kaplan’s inner office without authorization or permission. He bypassed the public lobby and entered Kaplan’s offices through a secured back door by grabbing it as a secretary walked through. Reiner pushed past the secretary and entered the secured area. Reiner and a process server barged into the office of Kaplan’s husband, attorney Gary Kaplan, who was on the telephone with a client at the time. After throwing a subpoena onto Gary Kaplan’s desk, Reiner and the process server came into Kaplan’s office, waived papers at her and threw a subpoena on her desk. As neither person was authorized to be in the interior offices, and as Kaplan felt threatened and feared for the safety of her employees, she called her staff to notify security and have Reiner and the process server removed from the premises. Hearing Kaplan call for security, Reiner left. Reiner, and possibly the process server, returned and dropped off additional papers.
Kaplan also declared under penalty of perjury that a worker’s compensation appeals board (WCAB) judge had granted a motion for protective order filed by Kaplan’s firm against Reiner because of “unprofessional behavior during discovery matters.” The former presiding judge ordered a special master, Richard Zaks, to attend discovery to assure that Reiner controlled his behavior. Kaplan declared that she is “seriously afraid of Reiner and am convinced he will not stop this type of conduct unless he is prohibited from doing so. I believe that Reiner is unstable. When I appeared at the Motion for Protective Order that was heard over a year ago... as well as several since then, he is threatening and invades my space by getting right up in my face to assert his position. He uses profanity and makes all kinds of wild accusations and threatens our attorneys by stating that he is going to file complaints against them for assault. He is always agitated, almost as if he is under the influence of something, every time I see him. His conduct with our client, reducing her to tears and assaulting her by putting his finger in her face certainly makes me afraid to be in a room with him.” (Italics added.) Kaplan characterized Reiner’s conduct in her office as “laying in wait” because he knew he could not gain access to the interior offices without being announced and buzzed in, and that the only way to enter the inner offices was to wait for an employee to enter the back secured door. Kaplan concluded by stating, “Clearly, that laying in wait to commit the crime of trespass in a secured area shows he is capable of criminal activity and is willing to engage in criminal activity in order to intimidate me and others.”
In opposition, Reiner denied the factual assertions in Kaplan’s declaration and alleged they were perjurious. In his attached declaration, Reiner suggested that Kaplan was facing “potential penal and ethical discipline exposure from the WCAB case which permits S. Kaplan to undertake the further risk of penal and ethical jeopardy....” He suggested that the motion for protective order was simply a litigation tactic designed to force his client to replace him with a different attorney.
Explaining the events of September 16, 2009, Reiner stated that his process server had claimed that Kaplan was not allowing the server to serve subpoenas on witnesses. The opportunity for legal service arose when Kaplan noticed a deposition at her offices. Reiner stated that this “not only permitted and authorized my presence in the offices... but legally required me to be there. Reiner then explained that an employee of Kaplan’s firm held the door to the offices open for Reiner and the process server to enter. Reiner described himself as greeting Kaplan’s husband and explained that he was present because, although the noticed deposition had been canceled and he had notified the parties he would not appear, he had come to object to the deposition on the record. After the subpoena was served, Reiner “indicated that I would then immediately leave.” Reiner stated that during the less than 60 seconds that he was at Kaplan’s office, “there was no violence, nor threat of violence, nor profanity, nor confrontation by either [the process server] or myself [sic].” Reiner insisted he never interacted with Kaplan.
Reiner denied that there had ever been a protective order issued by the WCAB. Reiner asserted that he has only interacted with Kaplan once in the past eight years, and so the assertions in her declaration that he is “erratic and unprofessional” during discovery is false.
At the hearing on the petition for restraining order, Reiner called Kaplan as a hostile witness. She testified under oath that: “You [Reiner] have followed me around the workers’ compensation appeals board, yelling at me, using profanities at me. You have gotten in my personal space, within inches of my nose, shaking your finger in my face, threatened me verbally. [¶] You have degraded and demeaned me on two separate occasions in March of 2007 at a hearing before Judge Tollman, again, in October of 2007 at a hearing before Judge Ward, which is why Judge Ward issued the order that the motion for protective order was granted and a special master was appointed to monitor your conduct at the proceedings.... [¶]... [¶] Mr. Reiner, I haven’t had any contact with you for two years, since October of 2007 when I stopped appearing on any matters in which you were the opposing counsel. I have not had any communication with you until September 16, [2009] when you broke into my office, you criminally trespassed, and you came into the interior, locked secured offices of Graiwer & Kaplan when I was on a... phone call with a client.... And you were aggressive, you were irritated, you were agitated, you assaulted me, sir. You made me hysterical. I immediately started to cry. I had security take you – escort you out.” Kaplan testified that Reiner’s conduct put her “in fear of my personal safety. That’s the third time it happened.”
Kaplan called Tasha Robledo, a secretary who testified, not that she held the locked door open for Reiner as he asserted, but that he “pushed past her” to gain access to the firm’s inner offices, and “walked straight down the hall” in the private and locked portion of the office. Although Reiner denied knowing the difference between the public and private portions of Kaplan’s offices, Robledo testified that he left the firm through the lobby door.
After the hearing, the trial court granted the restraining order prohibiting Reiner from being within 100 yards of Kaplan, her home, and her vehicle. The court did not check off the box that would prohibit Reiner from being within 100 yards of Kaplan’s job or workplace. The order remains in effect until October 8, 2012. After Reiner’ motion to vacate the restraining order was denied, he filed his timely appeal.
CONTENTION
Reiner contends the trial court erred in granting Kaplan’s motion for restraining order and the trial court was prejudiced against him.
DISCUSSION
To obtain a restraining order prohibiting harassment under section 527.6, the plaintiff must show by clear and convincing evidence that he or she has been harassed. (§ 527.6, subd. (d).)
Harassment is defined as “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.” (§ 527.6, subds. (b) & (d).) “ ‘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 email. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” (§ 527.6, subd. (b)(3).)
“ ‘Section 527.6 was passed to supplement the existing common law torts of invasion of privacy and intentional infliction of emotional distress by providing quick relief to harassment victims threatened with great or irreparable injury. [Citation.] It was enacted to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution. [Citation.] [¶] ‘Section 527.6 has been used where the victim has been stalked, threatened or otherwise seriously harassed. [Citations.]’ [Citation.]” (Nebel v. Sulak (1999) 73 Cal.App.4th 1363, 1369.)
“In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in... section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. [Citations.]” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
On appeal, Reiner contends that the instances of harassment, twice during hearings before the Workers’ Compensation Appeals Board, and once when he was serving a subpoena in Kaplan’s office, were constitutionally protected activity. The contention, which effectively attempts to spin the evidence, is specious.
Granted some of Reiner’s acts occurred in a courthouse during pending litigation. But that fact does not constitutionally protect his conduct. “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” (Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1071.) Attorneys owe a duty to “maintain the respect due to the courts of justice and judicial officers.” (Bus. & Prof. Code, § 6068, subd. (b), italics added.) “Showing ‘due respect’ to the court may also require attorneys to be courteous to opposing parties and witnesses and to refrain from undignified conduct ....” (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2009) [¶] 8:274, p. 8-42.) By no stretch of the imagination was Reiner’s conduct courteous or even civil.
Where Reiner’s conduct far exceeded the scope of civility, his reliance on Smith v. Silvey (1983) 149 Cal.App.3d 400 is unavailing. In Smith, we reversed the imposition of a harassment injunction under section 527.6 that enjoined a former mobilehome park tenant. The tenant had complained to various governmental agencies and initiated meetings to force reinspection of the park. (Smith, supra, at p. 403.) We held that initiating complaints with public agencies was protected by the First Amendment right to petition for redress of grievances. (Id. at p. 406.) Equally inapposite are the facts in Nebel v. Sulak, supra, 73 Cal.App.4th 1363. There was no evidence of harassing behavior to support the injunction in Nebel where the defendant’s conduct consisted of “watch[ing] from the back of a courtroom” and “quietly observ[ing] the proceeding.” (Id. at p. 1370.) By contrast, Reiner’s conduct of following opposing counsel around the courthouse, yelling, using profanities, degrading, demeaning, and threatening opposing counsel, is neither quiet nor related in any conceivable fashion to petitioning for redress of grievances.
Next, Reiner contends the trial court was prejudiced. He cites to the court’s statement during the proceedings that it was “about ready to make my ruling” and its refusal to allow Reiner to testify. These statements do not evince any prejudice on the part of the court. As to the first, the court had repeatedly pointed out that the proceedings on injunctions were summary and that the court had other pressing business to attend to. The court had heard testimony, had independently questioned counsel, and had all of the filings before it. With respect to Reiner’s insistence that the court would not let him testify, as the court specifically stated, “that’s a misstatement.” The court asked to hear from Reiner, gave him the opportunity to examine witnesses, admitted Reiner’s evidence, and heard Reiner’s argument.
There being sufficient evidence of at least three instances of harassing behavior, causing Kaplan to seriously fear for her safety, move herself from cases on which Reiner is counsel, and cry, there is no merit to Reiner’s contention that a single act of unlawful violence does not justify the issuance of a restraining order and a restraining order cannot be issued as punishment for a past act.
DISPOSITION
The order is affirmed. Plaintiff to recover costs on appeal.
We concur: KLEIN, P. J.KITCHING, J.