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& Holtz v. Maura
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Maura Larkins was representing herself when the Opening Brief was filed.
ARGUMENT
Appellant Maura Larkins Opening Brief
re San Diego Superior Court Injunction re website
Filed October 29, 2010 in California Court of Appeal
District Four, Division One

I.  THE INJUNCTION FORBIDDING APPELLANT FROM MENTIONING THE NAME OF
PLAINTIFF IS A VIOLATION OF THE FIRST AMENDMENT BECAUSE IT IS AN OVERLY
BROAD RESTRICTION ON FREE SPEECH.

A. The Standard of Review

The standard of review is de novo, independent review.
 “When an injunction
depends on the construction of a statute, and the matter is purely a question of law, the
standard of review is whether the statute was correctly constructed, and accordingly the
appellate court reviews de novo the court’s order granting an injunction” Teamsters Local
856 v. Priceless, LLC (2003).  Also Yes on Measure A v. City of Lake Forest (1997) and
Evans v. Evans (2008) 162 Cal. App. 4th 1157, 1166, 76 Cal. Rptr. 3d 859.
In this case the statute is the First Amendment of the US Constitution and the California
Constitution.

The court abused its discretion on several occasions in this case, but
Defendant/Appellant doubts that abuse of discretion needs to be considered in
deciding the current case.
 The court abuses its discretion if it exceeds all bounds of
reason.  If there is a likelihood of success by Appellant on appeal after the final judgment
of the trial court, whenever that might occur, or interim harm, the appellate court must
reverse the injunction of the Superior Court.

B.        Argument

1. The order at issue in this appeal states in pertinent part (exhibit 46) (IV AA 785:
“Due to Defendant’s continued circumvention of this Court’s orders, the Court hereby
modifies the Injunction to prevent Defendant from making any mention of Plaintiff law firm
or any of its attorneys, past or present.  Defendant is enjoined and restrained from
continuing to publish or republishing, by any method or media, including but not limited to
all electronic data, websites and web pages, any statements pertaining to Plaintiff and any
of its lawyers, past or present, and future publication of statements with regard to Plaintiff
and its lawyers.  Defendant is ordered to remove all mention of Plaintiff and any of its
lawyers, past or present, from her websites or websites under her control within twenty
days.”

2. The December 11, 2009 injunction is unconstitutional because it is overly
broad, permanently enjoining Defendant from mentioning the names of Plaintiff
or its attorneys.  

The injunction is unconstitutional because it violates Defendant’s right to
engage in political speech, discussing matters of public interest.

3.  The injunction states in pertinent part: “Defendant is enjoined and restrained
from continuing to publish or republishing, by any method or media, including
but not limited to all electronic data, websites and web pages, any statement
pertaining to Plaintiff and any of its lawyers, past or present, and future
publication of statements with regard to Plaintiff and its lawyers.”

4. The injunction is vague.
 If the court intended that Appellant would never again utter
Plaintiff's name orally (“by any method or media”), even to answer the question “By whom
were you sued in Superior Court?” then the injunction is so shockingly illegal that a
reasonable person might question whether this could have been the judge's intention,
and this uncertainty makes the ruling unconstitutionally vague as well as unacceptably
broad.  Even the injunction in Evans v. Evans, unconstitutional though it was found to be,
allowed an exception in case the defendant needed to call emergency services.  

Recent case law in the California Supreme Court, Balboa Island Village Inn v.
Lemen (2007) S127904 offers clear guidance as to what type of injunction may be
promulgated by a judge in a defamation case.
 The injunction against Appellant far
exceeds the bounds of constitutionality by forbidding Appellant to ever mention the name
of Plaintiff.  In a dispute raising defamation claims in which a permanent injunction was
issued prohibiting defendant from repeating defamatory statements about plaintiff, the
California Supreme Court ruled: “For the reasons that follow, we hold that the injunction is
overly broad, but that defendant’s right to free speech would not be infringed by a
properly limited injunction prohibiting defendant from repeating statements about plaintiff
that were determined at trial to be defamatory.”  The court ruled that “the injunction must
be reversed in part because it is overly broad, but a properly limited injunction prohibiting
defendant from repeating statements about plaintiff that were determined at trial to be
defamatory would not violate defendant’s right to free speech.”

In Evans v. Evans D051144 the Court of Appeal in the Fourth Appellate District,
Division One, found “the order must be reversed because it is overbroad,
vague, and an unconstitutional prior restraint…”

The First Amendment to the United States Constitution provides that "Congress shall
make no law ... abridging the freedom of speech...." This fundamental right to free speech
is "among the fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action." (Lovell v. Griffin (1938) 303 U.S.
444, 450, 58 S.Ct. 666, 82 L.Ed. 949; Gitlow v. New York (1925) 268 U.S. 652, 666, 45 S.
Ct. 625, 69 L.Ed. 1138.) Numerous decisions have recognized our "profound national
commitment to the principle that debate on public issues should be uninhibited, robust,
and wide-open." (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710,
11 L.Ed.2d 686.)
PRIOR RESTRAINT IS THE MOST SERIOUS AND LEAST TOLERABLE INFRINGEMENT
ON FIRST AMENDMENT RIGHTS
Defendant’s right to political speech is violated by this injunction.  Her website and her
oral speech would be severely censored, as she would be unable to mention the lawyers
who do the vast majority of the legal work for the San Diego County Office of Education
Joint Powers Authority and who represent school districts in San Diego County and
beyond.  

The United States prior restraint is the “most serious and the least tolerable infringement
on First Amendment rights.”  (Nebraska Press Ass’n v. Stuart (1976) 427 U.S. p. 559.)
Balboa Island Village Inn, Inc. v. Lemen (2007)40 Cal.4th 1141 , 57 Cal.Rptr.3d 320; 156
P.3d 339 is probably the most applicable case in the instant situation.  Clearly, Judge
Hayes is allowed to use prior restraint ONLY in regard to specific statements that have
been found to be defamatory.  The court in Balboa Island Village states: “a properly
limited injunction prohibiting defendant from repeating to third persons statements … that
were determined at trial to be defamatory would not violate defendant's right to free
speech. [40 Cal.4th 1147]

“Like all gag orders, particularly permanent ones, the trial court’s order is presumptively
invalid,” states the court in Freedom Communications, Inc. v. Superior Court (Gonzalez)
(2008)167 Cal.App.4th 150, Cal.Rptr.3d.  The court also states: “[W]e determine the trial
court’s order …is a prior restraint that plainly violates the press freedoms guaranteed by
the United States and California Constitutions.  Because “petitioner[s’] entitlement to the
relief requested is so obvious that no purpose could be served by plenary consideration
of the issue,” we issue a peremptory writ of mandate in the first instance.  (Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1260.)… A prior restraint is the “most serious and
the least tolerable infringement on First Amendment rights.”  (Id., at p. 559.)  Such an
order is a “most extraordinary remedy” that may be used “only in ‘exceptional cases’ . . .
where the evil that would result from the reportage is both great and certain and cannot
be militated by less intrusive measures.”  (CBS, Inc. v. Davis (1994) 510 U.S. 1315, 1317
(Blackmun, J., in chambers).)  

The United States Supreme Court has offered two examples of the sort of “exceptional”
situations in which a prior restraint might be justified:  to prevent the dissemination of
information about troop movements during wartime (Near v. State of Minnesota (1931)
283 U.S. 697, 716) or to “suppress[] information that would set in motion a nuclear
holocaust.”  (New York Times Company v. United States (1971) 403 U.S. 713, 726
(Brennan, J., concurring).)  …The same result obtains under the California Constitution,
which “provides an even broader guarantee of the right of free speech and the press than
does the First Amendment.  [Citation.]”  (Gilbert v. National Enquirer, Inc. (1996) 43 Cal.
App.4th 1135, 1144 -1145; see Cal. Const., art. I, § 2, subd. (a).)  Because we conclude
the order preventing The Register from reporting on trial testimony is unconstitutional
under both the United States and California Constitutions, it must immediately fall.  “[E]
very moment’s continuance of [a prior restraint] amounts to a flagrant, indefensible, and
continuing violation of the First Amendment.”  (New York Times v. United States, supra,
403 U.S. at p. 715 (Black, J., concurring).)…Let a peremptory writ of mandate issue
directing the superior court to vacate its order prohibiting The Register from reporting on
the trial testimony of witnesses during the pendency of the trial.”  New York Times
Company v. United States, 403 U.S. at p. 714 also forbids prior restraint.
To speak openly and freely, one of our most cherished freedoms, is a right guaranteed by
the First Amendment to the United States Constitution. (U.S. Const., 1st Amend.
["Congress shall make no law abridging the freedom of speech...."].)

This fundamental right operates as a restriction on both state and federal governments
(Near v. Minnesota (1931) 283 U.S. 697, 732, 51 S.Ct. 625, 75 L.Ed. 1357) including the
judicial, legislative, and executive branches of those governments (Madsen v. Women's
Health Center, Inc. (1994) 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593).
Injunctions pose a greater threat to freedom of speech than do statutes, as injunctions
carry a greater risk of censorship and discriminatory application than do general laws.
(Madsen v. Women's Health Center, Inc., supra, 512 U.S. at pp. 764-765, 114 S.Ct. 2516.)

An injunction is issued not by the collective action of a legislature but by an individual
judge—a single man or woman controlling someone's future utterances of speech.
Because the power to enjoin speech resides in an individual judge, injunctions deserve
greater scrutiny than statutes. (See id. at p. 793, 114 S.Ct. 2516 (cone. & dis. opn. of
Scalia, J.).) An injunction restricting future speech is a prior restraint (id. at p. 797, 114 S.
Ct. 2516 (cone. & dis. opn. of Scalia, J.)) and thus, presumptively unconstitutional
(Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.
Ed.2d 448).

CONCLUSION
The reasons set forth above compel reversal of the trial court’s December 11, 2009
injunction as unconstitutional.  Appellant respectfully requests that the Superior Court be
instructed to rescind its December 11, 2009 order and to limit its injunctions to specific
statements made by Defendant on her website and found to be defamatory at trial.  
                                Dated: October 27, 2010
                                Respectfully submitted,
                        By:___________________________
                                Maura Larkins, Appellant

CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief
contains 4,757 words, including footnotes.  In preparing this certificate, I relied on the
word count generated by the computer program used to prepare the brief.
        By ____________________________
        Maura Larkins, Appellant
See decision
University of San Diego (USD) law professor Shaun Martin represented Maura Larkins pro bono in
the Court of Appeal.  He is the author of the blog
California Appellate Report.
August 5, 2011 UPDATE:
California Court of Appeal decision: Stutz Artiano Shinoff
& Holtz v. Maura Larkins injunction is overturned
Story in Voice of San Diego
Stutz attorney Daniel Shinoff is the favorite attorney of San Diego County Office of Education.
Blog posts about this case (23)
Injunction Appeal
Procedural History
Statement of Facts
Argument
Reply
Stutz' Respndents Brief
December 11, 2009
Injunction

“Due to Defendant’s continued
circumvention of this Court’s
orders, the Court hereby
modifies the Injunction to
prevent Defendant from making
any mention of Plaintiff law firm
or any of its attorneys, past or
present.  Defendant is enjoined
and restrained from continuing
to publish or republishing, by
any method or media, including
but not limited to all electronic
data, websites and web pages,
any statements pertaining to
Plaintiff and any of its lawyers,
past or present, and future
publication of statements with
regard to Plaintiff and its
lawyers.  Defendant is ordered
to remove all mention of
Plaintiff and any of its lawyers,
past or present, from her
websites or websites under her
control within twenty days.”
The four statements that
triggered the injunction
below:
Since the August 5, 2011 Court of Appeal
ruling, the true identities of the lawyers in
the statements below can be revealed:
Mr. "X" is Daniel Shinoff and Ms. "A" is
Leslie Devaney.

Objectionable statement #1:
Who trains school attorneys?
 

"Who trains school attorneys?
Attorneys who have helped schools
avoid revealing events in schools
are in charge of training both new
board members and new school
attorneys…Mr. X trains board
members and employees as well as
attorneys.”

2.        “One of Mr. X’s
specialties is planning legal
tactics against parents who
complain that their kids aren’t
getting the right education.”

3.        “Mr. X should be
ashamed of misusing the
suffering of his wife’s relatives
to gain an advantage in the
courtroom.”

4.  “MS. A WAS THE NUMBER 2
OFFICIAL IN THE OFFICE OF CITY
ATTORNEY when the city made
deals which the SEC and the FBI
are now investigating.  Perhaps this
one bit of information explains why
Ms. A is outraged at Aguirre’s
efforts to expose the facts about
actions by public officials!  
[Plaintiff's law firm] to which the
SDCOE JPA steers the lion’s share
of its cases, is closely tied to right-
wing Republicans such as Ms. A.  
Ms. A joined the Stutz law firm after
losing to Michael Aguirre in the race
for San Diego City Attorney.  Ms. A
has recently admitted that if she
had been elected, she would HAVE
HELPED city officials and
employees, not the public,
regarding the secret 2002 pension
underfunding deal.  I think the city
attorney should, in the public
interest, demand explanations from
officials.”

Plaintiff discussed a fifth statement
in its motion, but that statement had
been removed from her website by
Defendant since Defendant.  The
fifth statement was, “Attorney Dan
Shinoff fools the US Office of Civil
Rights…In fact, Stutz law firm itself
used the courts to try to force a
paid expert witness to testify as the
school district wished” [Vista Unified
School District v. Dr. B. J. Freeman,
a case that was wisely dropped by
the school district in its early
stages].”   Defendant has made a
sincere effort to obey the stipulated
injunction, and in order to err on the
side of caution, removed the
statement because it contained the
words “fooled the Office of Civil
Rights” and “used the court to try to
force a paid expert witness to testify
as the school district wished.”  It is a
simple fact  that Plaintiff's law firm
filed a lawsuit against a
psychologist because she refused
to testify in support of Vista Unified
School District’s determination that
a specific child was ineligible for
special education, but Defendant is
willing to go out of her way not to
publish  her own opinions about the
legality and ethics of Plaintiff’s
actions.  Defendant does, however,
realize now that the stipulated
injunction amounted to a blatant
subterfuge by Plaintiff and Judge
Hayes, and is unconstitutionally
broad, as proven by the infinite
vastness of statements that it
prohibits in the interpretation of the
Superior Court, and
unconstitutionally vague, as  proven
by the fact that it has been
interpreted by the Superior Court to
mean something completely
different from what Defendant
understood when she agreed to it.  
Lawyers
Blog posts about this case
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