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Law & Motion Calendar

PLEASE NOTE: If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6725  and all other opposing parties of your intent to appear by 4:00 p.m. the court day immediately before the day of the hearing.

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The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6725 and all other opposing parties of your intent to appear by 4:00 p.m. the court day immediately before the day of the hearing. Parties in motions for claims of exemption are exempt from this requirement.

PLEASE NOTE: The Court’s Official Court Reporters are “not available” within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.

Tentative Rulings

Wednesday, August 20, 2025
3:00 p.m.

Law & Motion Tentative Rulings 8-20-2025

1.         24CV01412, Chase v. City of Santa Rosa

            This matter is on calendar for the motion of Defendant City of Santa Rosa (“City”) for an order pursuant to CCP sections 2023.010, 2023.030, 2030.290(c), and 2031.300(c) imposing further sanctions, including monetary, issue, evidence, and/or terminating sanctions against Plaintiff Justin Chase (“Plaintiff”) for his ongoing and continued failure and refusal to comply with this Court’s January 16, 2025, order granting the City’s motion to compel discovery responses. The motion is GRANTED.  

            This action was filed on February 23, 2024, and a first amended complaint was filed on June 28, 2024. The FAC alleges one cause of action for premises liability due to an injury from an unmarked pothole in a poorly lit street.

            On May 30, 2024, the City propounded its first set of written discovery on Plaintiff by email, via Plaintiff’s counsel, consisting of Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One. (Putney decl., ¶¶5-8, Exhibits B-D.) Several extensions to respond were granted; however, when discovery was not forthcoming, the City filed its motion to compel production of discovery. (Id., ¶¶10-14.) On January 16, 2025, this court granted the City’s motion and ordered Plaintiff to serve verified responses within 30 days of the service of the order. (Id., ¶15, Exhibit I.) The City served the order on Plaintiff’s counsel on January 17, 2025. (Ibid.) As of the date of the motion, no responses have been forthcoming. (Id., ¶16.) The City did not receive a return call or an email from Plaintiff’s counsel in response to its meet and confer attempts. (Id., ¶¶17-21.) According to the City, Plaintiff’s living situation is tenuous and he may be unhoused. (Id., ¶22.)

            The City’s motion was filed on March 11, 2025. As noted in Plaintiff’s counsel’s motion to be relieved as counsel heard on July 30, 2025, Plaintiff’s counsel has still not been able to get in touch with his client.

            It appears that Plaintiff has abandoned this action. This court has already issued sanctions against Plaintiff for his failure to respond to discovery requests. Plaintiff’s continued failure to respond to the City’s discovery requests makes it impossible for this action to proceed. Accordingly, terminating sanctions are now appropriate.

            The motion is GRANTED. Pursuant to CCP section 2023.030(d)(3), this action is hereby dismissed.

            The City’s counsel is directed to submit a written order to the court consistent with this ruling.

 

2.         24CV01984, 458 Seb Ave LLC v. Anderson

            This matter is on calendar for the application of attorney Andrew Hayes to appear as counsel for Defendant Eric Gustav Anderson (“Defendant”) pro hac vice.

            Mr. Hayes’s application is dependent upon his association with an active licensee of the State Bar of California who is Defendant’s attorney of record. (Cal Rules of Court, Rule 9.40(a).) On August 11, 2025, Counsel for Defendant, Scott Emblidge of Moscone Emblidge & Rubens LLP, filed a motion to be relieved as counsel. Mr. Hayes’s application indicates he is associated with Mr. Emblidge, (Hayes decl., ¶8.) As Mr. Emblidge and his firm are moving to be relieved as counsel, if that motion is granted, Mr. Hayes will no longer have associated California counsel. Defendant’s counsel’s motion to withdraw is currently set for October 29, 2025. Therefore, as this matter should be heard after a determination is made on that motion, the motion is CONTINUED to October 29, 2025, at 3:00 p.m., in Department 16.

 

3.         24CV02197, Ravaglioli v. Ravaglioli

            Attorney Michael Wanser moves to be relieved as counsel for Plaintiff Edmondo Ravaglioli (“Plaintiff”). The motion being in proper form with proof of service showing service on Plaintiff and no opposition having been filed, the motion is GRANTED. The court will sign the proposed order.

 

4.         24CV03739, Lopez v. Rhonert Park Hospitality, LLC

            APPEARANCES REQUIRED.

 

5.         24CV04975, Looney v. Amerigo, LLC.

            Defendants Amerigo LLC, dba Kirway Express (“LLC”) and Joseph Ismael (“Ismael”)(together “Defendants”) move for an order setting aside the default judgment entered on December 10, 2024. Defendants argue that they were not properly served with notice of the legal proceedings and that the declaration of service contains false and inaccurate information. The motion is DENIED.

            The complaint in this action was filed on August 27, 2024. It alleged that Defendants failed to pay $13,695.98 due under the contract.

            Proof of service of summons was filed on November 14, 2024, for both Ismael and LLC. With respect to service on the LLC, the process server hired by Plaintiff Gary E. Looney (“Plaintiff”) states that on September 17, 2024, at 4:28 p.m. he left the complaint, summons, and related documents with cashier Maria Velasquez. Ms. Velasquez was described as being about 45 years old, 5’8”, 200 lbs., Hispanic, and having brown hair. Thereafter, the same documents were mailed to Defendants at 2666 W Lincoln Ave, Anaheim, CA 92801.

            The process server describes service on Ismael via a different cashier. The process server states that on September 19, 2024, at 9:55 a.m., he served cashier “Jane Doe,” who refused to give her name. She is described as being 35 years old, 5’6”, 150 lbs., Hispanic, and having brown hair. Thereafter, the documents were mailed to Ismael at the West Lincoln address. The declaration of reasonable diligence states that the process server attempted to serve Ismael personally at the West Lincoln address on September 17, 2024, at 4:28 p.m., and September 18, 2024, at 10:50 a.m., but Ismael was not there.

            Defendants’ default was entered on November 14, 2024. Judgment was entered on December 10, 2024, in the amount of $16,456.53. This included the $13,695.98 owed under the contract, $2,004.75 in interest, and $755.80 in costs.

            On January 28, 2025, Defendants filed their motion to set aside the default judgment. The motion was originally heard on April 30, 2025. This court noted in its ruling that LLCs cannot file documents in pro se and must be represented by an attorney licensed in the State of California. The ruling also noted that proof of service of the motion showing service on Plaintiff had not been filed. As no opposition had been filed, this court continued the motion to this calendar “to allow Defendants to file proof of service of the motion on the Plaintiff and to allow defendant Amerigo LLC to obtain an attorney.”

            As of the date the court reviewed this matter for the current hearing date, no additional documents have been filed. Accordingly, the motion is DENIED without prejudice for lack of showing of service on the Plaintiff. 

            ­­­­­­­­Due to the lack of opposition, this court’s minute order shall constitute the order of the court.

 

6.         25CV01985, Perdue Foods LLC. v. Direct Action Everywhere

Plaintiffs Perdue Foods, LLC (“Perdue”) and Jason Arnold (“Arnold”, together with Perdue, “Plaintiffs”) filed the currently operative First Amended Complaint (the “Complaint”) in this action against defendants Direct Action Everywhere (“DxE”, or “Defendant”), Almira Tanner (now dismissed), and Does 1-100, for four causes of action: 1) Harassment under CCP § 527.6; Intentional Infliction of Emotional Distress; 3) Violations of the California Constitution Right to Privacy; and 4) Public nuisance.

This matter is on calendar for an Order to Show Cause for Preliminary Injunction requested by Plaintiffs, and Defendant’s Anti-SLAPP motion under CCP § 425.16.

The Anti-SLAPP motion is DENIED.

The Preliminary Injunction is GRANTED as stated below. 

ANTI-SLAPP MOTION

I.                   The Complaint as Related to the Motion

The Complaint alleges that Defendant has undertaken organization of protests outside the home of Arnold “until Mr. Arnold resigns from his position with Petaluma Poultry, and [] DxE’s goal of shutting down Petaluma Poultry and ending animal agriculture”. Complaint ¶ 34. Defendants first protest occurred on January 28, 2025. Complaint ¶ 31. Between that date and April 3, 2025, Defendant organized nine protests in Arnold’s residential neighborhood. Complaint ¶ 31-50. Defendant’s conduct utilized megaphones, chanting, and large signs depicting Arnold with text bubbles, such as “I torture chickens.” See, e.g., Complaint ¶ 46.

II.                Evidentiary and Procedural Issues

Defendant has filed objections on Reply. Objections 5, 7, 8,17,19, and 20 are SUSTAINED. The balance are OVERRULED.

Judicial notice of official acts and court records is statutorily appropriate. See Cal. Evid. Code § 452(c) and (d) (judicial notice of official acts). The court must take judicial notice of any matter requested by a party, so long as it complies with the requirements under CCP § 452. CCP § 453. However, the court may, on its own motion, take judicial notice of any matter under CCP § 452. Yet since judicial notice is a substitute for proof, it “is always confined to those matters which are relevant to the issue at hand.” Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301. Factual findings found within a prior judicial opinion are not an appropriate subject of judicial notice. Kilroy v. State (2004) 119 Cal.App.4th 140, 148. Courts may take notice of public records, but not take notice of the truth of their contents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375. The scope of the judicial notice taken is limited to the action of the executive agency. Id at 1375. Additional information which is included in the documentation or contentions as to the truth of the contents is not appropriate for judicial notice. Id.

Defendant asks for judicial notice of a filing in a criminal case. Given that both the truth of the contents of that filing, and argued repercussions thereon require the Court to exceed the bounds of judicial notice, that request is DENIED. It is not apparent nor properly the subject of judicial notice for the Court to assume whether this is the first time Arnold has been disclosed as a witness, that he will be called as a witness, or the motivations thereon.

III.             Governing Authorities

                   A.    Anti-SLAPP

CCP § 425.16(b)(1) provides that a cause of action against a person “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CCP § 425.16(e)(1) defines the foregoing phrase to include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” CCP § 425.16(b)(2).

A defendant has the initial burden to make a prima facie showing that the complaint “arises from” her exercise of free speech or petition rights. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 at 458-59. “At the first step of the analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. (See § 425.16, subd. (e).) And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887. If they meet that initial burden, the burden shifts to the plaintiff to establish a “probability” that he will prevail on the claims which are based on protected activity. CCP § 425.16(b). To establish a “probability” of prevailing on the merits, the plaintiff must demonstrate that the claim is both legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by the plaintiff is credited. Navelier v. Sletten (2002) 29 Cal.4th 82, 89. The court does not weigh credibility or comparative strength of the evidence in making this summary judgment-like determination. See, e.g. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. But to demonstrate a probability of prevailing on the merits, the plaintiff must produce admissible evidence sufficient to overcome any privilege or defense that the defendant has asserted to the claim. See, e.g. Flatley v. Mauro (2006) 39 Cal.4th 299, 323 (Civil Code section 47(b) litigation privilege is a substantive defense the plaintiff must overcome to demonstrate probability of prevailing). In making its determination, the Court considers the pleadings, as well as supporting and opposing affidavits. CCP § 425.16(b). No finding of intent to chill free speech, or actual chilling of free speech, is required. Equilon, 29 Cal.4th 58-59.

If the motion to strike is directed to the entire complaint, it is sufficient to determine whether any of the alleged acts constitute a cause of action, and if one exists the motion may be denied. Baral v. Schnitt (2016) 1 Cal.5th 376, 391. “(T)he trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim's elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’” Park v. Nazari (2023) 93 Cal.App.5th 1099, 1109.

                   B.     Determination of Protected Activity

Subdivision (e) sets forth the different types of activity which fall within the ambit of section 425.16.  It states, in full,

As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

“If the acts alleged in support of the plaintiff's claim are of the sort protected by the anti-SLAPP statute, then anti-SLAPP protections apply.” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887. The alleged wrongful conduct must itself have been protected activity, and the anti-SLAPP statute does not apply merely because the allegations refer to or in some manner tangentially touch on events that include protected activity.   Old Republic Construction v. The Boccardo Law Firm (2014) 230 Cal.App.4th 859, 867-868. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Baral v. Schnitt (2016) 1 Cal.5th 376, 394. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” CCP, § 425.16 (b)(2). The supporting affidavits, and even the arguments made in opposition may be considered by the court when determining whether the allegations constitute protected activity. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1017, fn. 5.

The court must determine whether the content of the speech relates to an issue of public interest, and whether the conduct furthered the discourse that makes the issue one of public interest. FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145 (“FilmOn”). “FilmOn’s first step calls for an objective inquiry, without deference to the movant's framing or personal motivations. A court evaluating an anti-SLAPP motion should take the position of a reasonable, objective observer.” Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1254 (“Geisler”). “The Weinberg court distilled ‘some attributes of [an] issue which make it one of public, rather than merely private, interest,’ including the fact that the issue is “of concern to a substantial number of people’ or has ‘been the subject of extensive media coverage.’ (Weinberg, at pp. 1132, 1133, 2 Cal.Rptr.3d 385.)” Id. at 1248.

“Second, we look to the ‘functional relationship’ between the challenged activity and the ‘public conversation’ about that issue, and ask whether the activity ‘ “contribute[s]” ’ to public discussion of the issue.” Geiser, supra, 13 Cal.5th at 1249. “(U)ltimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” FilmOn.com , supra, 7 Cal.5th at 151.

"Some cases have suggested that ambiguous pleading can in some instances make a suit not a SLAPP. (Citation). . . The statute instructs us to take account of [] additional allegations [presented in the evidence] in our analysis. (See § 425.16, subd. (b)(2) [courts ruling on anti-SLAPP motions “shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based”].)” Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1017, fn. 5.

                   C.     Probability of Success on the Merits

“(T)he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, internal quotations omitted. Conclusory allegations will not protect insufficient claims from anti-SLAPP remedies. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1423. Plaintiff is charged with producing “competent and admissible evidence” to meet this burden Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236. The court must “accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.” Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.

                                      1.      First Amendment Protections

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. “(S)treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Hudgens v. N. L. R. B. (1976) 424 U.S. 507, 515

First Amendment protections are broad but not absolute. “The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.” Frisby v. Schultz (1988) 487 U.S. 474, 487 (“Frisby”). The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown (1980) 447 U.S. 455, 471. “Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual to be let alone in the privacy of the home, sometimes the last citadel of the tired, the weary, and the sick.” Ibid. (internal quotations omitted).

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, (Citation), the home is different. “That we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech ... does not mean we must be captives everywhere.” (Citation). Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. (Citations).

Frisby, supra, 487 U.S. at 484–485 (internal citations omitted).

Nonetheless, “a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood.” Id. at 480. Rather, it may be subject to reasonable restrictions balanced against the residents against the well-being, tranquility, and privacy of the home. Madsen, supra, 512 U.S. at 775.

“Despite this greater expansiveness of speech rights, article 1, section 2(a) tolerates content neutral speech restriction commensurate with the First Amendment. See, e.g., Pruneyard Shopping Ctr., 23 Cal.3d at 909, 153 Cal.Rptr. 854, 592 P.2d 341(recognizing such permissible restrictions under California Constitution).” Rosenbaum v. City and County of San Francisco (9th Cir. 2007) 484 F.3d 1142, 1167. “In the context of amplified sound regulation, time-place-manner restrictions also apply under California law. See Wollam v. City of Palm Springs, 59 Cal.2d 276, 278, 29 Cal.Rptr. 1, 379 P.2d 481 (1963)” Ibid.

IV.             The Instant Case is Not Subject to Anti-SLAPP Protections

In the instant case, Defendants argue that the causes of action in the Complaint derive from Constitutionally protected speech, and that Plaintiffs cannot show a probability of success on the merits of these causes of action. Plaintiffs argue that Defendant’s conduct is not protected, and that they can establish a prima facie case to support the Complaint.

                   A.    Defendants Show That the Case Arises from Protected Activity

The issue of protected activity is hotly contested. If there is a case to which the instant facts bear the strongest resemblance, it is Madsen. As was noted by Defendant throughout, there is no ordinance which would restrict the ability to protest in Santa Rosa. The degree of protection provided to Defendant’s conduct appears addressed clearly by this First Amendment jurisprudence. However, the application of California law to the instant facts complicates matters. Defendant strenuously argues the applicability of Geisler to the instant facts, arguing that the consideration of protected activity under the Anti-SLAPP statute is entirely analogous. Plaintiff in turn argues that their case goes not to speech, but to conduct, and accordingly speech protections do not apply.

This raises an issue not directly addressed by any case cited by the parties. Can the method by which a party peaceably gathers in protest be transmuted into something other than protected activity? In attempting to synthesize an answer to the question, the Court applies the FilmOn factors to the instant facts, and the natural consequence thereon.

In assessing the legal boundaries of the Defendant’s position, it appears proper to examine the range of the facts in the instant case, those in Geisler, and the natural extension of what may occur. In Geisler, the homeowner defendants had lost their home to foreclosure to plaintiff. Protestors had gathered outside of the corporate headquarters on three prior occasions. Plaintiff filed his request for restraining order two days after the only residential protest, seeking to enjoin homeowners and the organizer from further protests. The residential protest had lasted until about 10 pm. The protestors held signs, sang songs, and gave short speeches, including some chanting calling out plaintiff by name. The demonstrations at headquarters had garnered substantial media attention. The residential protest gathered further attention. Defendants filed an Anti-SLAPP motion, which the trial court found that the homeowners had failed to implicate a public issue with their conduct. Our Supreme Court reversed, concluding that the test expressed in FilmOn applied, and that defendants’ conduct did pass the two factor FilmOn test. The high court found that while homeowners had a subjectively personal intent, the result of the protest as assessed objectively was to raise important conversations about foreclosure practices. The discussion raised by the protests furthered public discussion even though evidence existed that defendants’ motivation was personal. Id. at 1255.

Geisler presents several factors more mild in nature than those presented in the instant case. Here, before entry of the TRO, Defendant had organized nine protests in front of Arnold’s house, lasting multiple hours. The protestors used megaphones in the course of protests, which to increase the volume of their chanting. Geisler contains only a single residential protest, and nothing within the decision leads the Court to conclude that auditory amplification was used. These are additional aggrevations to the targeted nature of the protests which bear some relevance to determination of this matter in its latter stages.

In turn, Plaintiffs argue that the conduct here exceeds what was capable of restriction under Madsen, and therefore it is not protected speech.  This is unpersuasive for two reasons. First, the boundaries of constitutional protection attributable to the first stage of the Anti-SLAPP analysis do not appear restricted to those expressed in First Amendment cases. While First Amendment jurisprudence appears to inform determinations thereon, it is not the entire tapestry of considerations when determining protected activity. FilmOn provides a discrete test intended to address all relevant factors. Second, the substantive nature of protections under the First Amendment appear with far more gradient than is capable of consideration in the first stage of an Anti-SLAPP motion.

To the first point, the Court notes that FilmOn contains no citation to either the First Amendment, nor the Supreme Court’s jurisprudence thereon. Rather, the determination of “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” appears captured by the two-part test expressed by that court. CCP § (e)., § 425.16; FilmOn, supra, 7 Cal.5th at 154. Rather, the principles of that test appear to utilize particular considerations within freedom of speech jurisprudence. Madsen’s expression of what conduct is capable of restriction leads to the second point.

Plaintiff’s contention that Madsen is illustrative of conduct that is unprotected overreads the ruling of that case. Undoubtedly, the court in Madsen found sufficient cause to place restrictions on the expression of free speech at issue, but that conclusion is not synonymous with Plaintiffs’ contention that the speech was unprotected. The Madsen court found that the trial court had overreached into abridgment of freedom of speech by imposing some of the restrictions in the injunction. Madsen, supra, 512 U.S. at 775 (300-foot zone exceeded the permissible burden on speech).  The high court’s ruling required any injunction to “burden no more speech than necessary”, regardless of the residential picketing, the use of megaphones, or the existence of captive audiences. This indicates a spectrum of protections under the First Amendment, where certain activity otherwise entitled to protection may be outweighed by countervailing interests. This is generally in accord with other First Amendment jurisprudence and constitutional law generally. See, e.g., McCullen v. Coakley (2014) 573 U.S. 464, 478 (Strict scrutiny as applied to restrictions of First Amendment protected activity “must be the least restrictive means of achieving a compelling state interest.”). The conduct alleged in Madsen was capable of restriction, but the review required the high court to “ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Madsen, supra, 512 U.S. at 765. The high court found the test synonymous with struct scrutiny. Id. at 767 (“We fail to see a difference between the two standards.”). Clearly, the conduct in Madsen, given that it had to be subject to the least burdensome restriction, was not unprotected as Plaintiffs claim. Nonetheless, it was subject to restriction under the strict scrutiny analysis.

The determination of protected activity under § 425.16 is not posed in conditional or partial terms. The charge of the Court is to examine each allegation of the Complaint to determine whether the causes of action would otherwise survive if the protected activity were not alleged. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012. Undoubtedly, the conduct alleged against Defendant is related to speech activities, and FilmOn provides the relevant test to determine whether that conduct is protected under the Anti-SLAPP statute. Neither the test in FilmOn nor the further clarifications thereon in Geisler provide any balancing test where the burden imposed on Plaintiffs may be considered. For the purposes of the first stage, activity is either protected, or it is not. The analysis of protected conduct that is nonetheless subject to restriction appears to be properly analyzed at the second stage.

Plaintiff does not contend that anything performed by Defendant is criminal in nature. Plaintiff makes no allegation of trespass, vandalism or physical assault. The allegations are entirely related to the time, place, and manner in which Defendant organized protest. The determination here turns on whether Defendant’s conduct (for the purposes of the allegations in the Complaint), is protected activity under the FilmOn test. This leads to two required determinations at the first stage of the special motion to strike: what public issue or issue of public interest was implicated by Defendant’s alleged activity, and the functional relationship between the challenged activity and the public discourse thereon.

                                      1.      The Conduct Relates to an Issue of Public Interest

Defendant contends that the conduct was connected to an issue of public interest, while Plaintiff contends that the conduct at issue cannot be connected in retrospect to the public issue argued. An objective review of the facts here, as required by Geiser, leads to the conclusion that there is “reasonable inference” that it implicates a public issue. Geiser, supra, 13 Cal.5th at 1254.

Plaintiffs are not persuasive. Defendant is alleged to be an organization of “animal rights extremists” seeking to “espouse their radical beliefs” in Arnold’s residential neighborhood. Complaint ¶ 56. The issue of animal rights, and public discourse thereon, is an issue of ongoing moral discussion. See, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247 (animal testing was an issue of public interest). That Defendant’s position is at the extremity of a side of that discussion does not foreclose the conclusion that they raise an issue worthy of discussion. Even “outrageous” speech may be subject to First Amendment protections where it implicates issues of public interest. Snyder v. Phelps (2011) 562 U.S. 443, 458. Plaintiff makes no persuasive argument that continuing discussion of moral issues is not one of public interest. Defendant’s alleged methodology of residential picketing is well worn in terms of jurisprudence, and is clearly a method by which public issues may be raised to the public consciousness. 

                                      2.      The Conduct has a Functional Relationship to Public Conversation

The second step is to assess whether the conduct advanced public discourse.

The factor as described by FilmOn and Geisler provides no relative balancing between the costs associated with Defendant’s speech and the public discourse generated. In the framework of those decisions, the question is whether Defendant’s conduct furthered the discourse thereon, not the degree to which it did so. Defendant points out that the protests have led to press releases from Perdue. The holding of higher courts is clear that while media attention provides evidence of advancing the public discussion, it is not a dispositive factor. Plaintiffs’ Complaint concedes that the intent of the conduct is to draw media attention, including alleged false flag operations to draw additional coverage. See Complaint, ¶ 48.

Between the engagement in exchange in the media, social media posts, and the purported mission of Defendant (in both the terms posed by Plaintiffs and Defendant), Defendant’s conduct seems to have been participation in the discourse that makes an issue one of public interest. Defendant contends that Arnold refused to undertake any dialogue with them, nor was he required to. However, drawing subsequent response from Perdue appears to be a success that results in further exchange within the marketplace of ideas. Given the clear public interest in discussion, the resulting discussion from that context is sufficient to meet “protected activity”.

Plaintiffs Complaint relies on conduct which is protected activity under the anti-SLAPP statute. Therefore, analysis proceeds to the second step, and the burden shifts to Plaintiffs to show a probability of prevailing.

                   B.     Plaintiffs Nonetheless Show a Probability of Prevailing

Defendant has targeted their Anti-SLAPP motion to the entire Complaint. See Defendant’s Notice of Motion to Strike (Defendant “does move this court for an order striking the first amended complaint…”). The Court need only find one cause of action which appears to be sufficiently viable to deny the motion in total.

                                      1.      There is Evidence that Defendant is a Proper Party

Defendant provides evidence that they contend shows they are not a proper defendant, as they disclaim any responsibility for the conduct related to the protests. Defendant asserts that the protests were organized by Direct Action Everywhere – San Francisco. Defendant states that protests are entirely organized by local chapters, and the Defendant does not exert any control over local chapters. Defendant argues that they did not organize the relevant protests, and that they therefore cannot be restrained based on that conduct.

Plaintiff in turn provides evidence of the central and pivotal role that the San Francisco chapter plays, as is advertised by Defendant’s own website. Tanner, the very declarant disclaiming any association between Defendant and their local chapters, is evidenced to be part of the “elected core team in the DxE SF Bay Area Chapter”.  She is by her own admission President of Defendant’s organization. See Tanner Declaration in Support of Motion to Strike, ¶ 2. This is sufficient to provide evidence of agency and control that Plaintiffs may have a probability of prevailing against Defendant as a proper party to the case. To this argument, Plaintiffs have met their burden.

                                      2.      The First Amendment Protection at Issue is not Absolute

Second, Plaintiffs’ claims do hinge on conduct which occurred in the course of a public picketing. It appears necessary to assess whether the First Amendment protects the alleged conduct. Defendant argues strenuously that Geisler is dispositive on Plaintiffs’ possibility of prevailing. This is unpersuasive and overstates the analysis of the court in Geisler. The determination of our supreme court in that case applied entirely to the first stage of the Anti-SLAPP motion, and any contention that the Supreme Court somehow provided blanket immunities relating to residential protest is not supported. As the Court has explained above, First Amendment protections vary in their applicability depending on whether they can be overridden through a compelling state interest.

As the Court previously noted, Madsen provides the relevant standard for First Amendment protections to protests where no ordinance applies. Conduct may be entitled to protections but still may be subject to reasonable restrictions which “burden no more speech than necessary”. Madsen, supra, 512 U.S. 753, 767. Competing rights of Plaintiffs may be sufficient to show that the First Amendment does not preclude the claims in the Complaint, as “(e)ven protected speech is not equally permissible in all places and at all times.” Snyder v. Phelps (2011) 562 U.S. 443, 456; quoting Frisby, supra, 487 U.S. at 479. Speech which invades the sanctity of the home may be properly restrained, as it can be countervailed by competing constitutional interests. Id. at 484. This is capable of consideration even where no ordinance exists, but is subject to the restrictive burden that the court’s orders “burden no more speech than necessary” to protect these interests. Madsen, supra, 512 U.S.at 772.

Arnold displays evidence of repeated, disruptive protests before his home. While the jurisprudence provides no clear, bright line where protests are capable of being burdened, the conduct at issue here draws strong analogy to those allegations in Madsen. It is not contested that the protests are at least in part “to encourage Mr. Arnold to address (Defendant’s) concerns”. Declaration of Paul Darwin Picklesimer, ¶ 6. While petitioning directly to Arnold is not itself conduct capable of being burdened, cases finding imposition of burdens appropriate “often focused on the ‘place’ of that speech, considering the nature of the forum the speaker seeks to employ.” Frisby, supra, 487 U.S. at 479. These same considerations apply under California law, as “targeted picketing is a disfavored activity not entitled to a high level of First Amendment protection.” City of San Jose v. Superior Court (1995) 32 Cal.App.4th 330, 338. “The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt…” Frisby, supra, 487 U.S. at 486.

Here, the conduct alleged, and fully admitted by Defendant, is sufficient to show that Plaintiff has a probability of prevailing. Defendant does not dispute the protests outside of Arnold’s residence. Arnold is entitled to the well-being, tranquility and privacy of his home, and, even absent ordinance, the Court here is empowered to curtail disruption of that right. Madsen, supra, 512 U.S. at 775. Defendant is not entitled to treat Arnold as a captive audience by pursuing him to the bounds of his property. Ibid. The conduct alleged and supported by evidence meets the standards where the Court may curtail it, and accordingly Plaintiff has a probability of prevailing thereon.

Defendant’s contention that Madsen revolves around illegal conduct is not supported by any of the cited text. While the dissent and concurrence may have included improvident reference to illegality, all those references are in response to Justice Scalia’s dissent contending the assumption of illegal behavior. Madsen, supra, 512 U.S. at 800 (Scalia, J., dis. opn.) (“[P]rotest demonstrations against private citizens mingling political speech with (what I will assume for the time being existed here) significant illegal behavior.”). No fact within the opinion bears out the factual veracity of this philosophical exploration. Defendant’s argument that Madsen is not applicable is unprevailing as a result.

Accordingly, Plaintiffs show evidence conduct implicating interests capable of outweighing freedom of speech.

                                      3.      Plaintiffs Present at Least one Viable Cause of Action

Plaintiff has four causes of action in the Complaint. Given the manner in which the motion to strike is posed, the Court need only find some viable cause of action to deny the motion in total. Baral v. Schnitt (2016) 1 Cal.5th 376, 391.

In examining the Complaint, the Court finds particular viability in the cause of action for public nuisance. Plaintiff offers allegations and evidence of the nature of Defendant’s conduct placing a burden on Arnold’s neighborhood by conducting protests in a manner which creates sound pollution and littering. Complaint ¶¶ 31, 33, 35, 37 and 50; Declaration of Stephen Swaney in Opposition to Motion to Strike, Ex. M, ¶ 6. As the Court expounds upon below, nuisance is a malleable cause of action which may be met through a variety of facts. Here, Plaintiffs both allege and provide evidence relating to what appears to be an adequate cause of action.

Therefore, because Plaintiff has shown at least one viable cause of action, the motion to strike the Complaint is DENIED.

V.                Conclusion

While Defendants show that the Complaint turns on protected conduct, Plaintiff meets the shifted burden to show that there is a probability of prevailing. Based on the foregoing, the Anti-SLAPP Motion is DENIED.

 

PRELIMINARY INJUNCTION

                   I.            Facts and Procedural History

Plaintiff Perdue is a food producer that produces a wide variety of products which include meat derived from farming operations. Arnold is director of operations for Perdue at their Petaluma location. Defendant is a non-profit political activist group which promotes their position on animal rights, including the position that many farming practices are inhumane.

Starting on January 28, 2025, at least a dozen protesters, allegedly at the direction of Defendant, gathered in front of Arnold’s home. They chanted through megaphones and held signs insisting that Arnold cut ties with Perdue. This occurred eight more times on similar facts between the first demonstration, and the ninth that occurred on April 3, 2025. The demonstrations typically last hours at a time. Protesters have at various points shouted at Arnold, his wife, or his two minor children if they are observed outside the house at the time of a protest. There is no evidence of physical trespass onto Arnold’ property. The Court issued a TRO on April 11, 2025 placing restrictions on how close protesters could be to Arnold’s property, and banning the use of audio amplification equipment, among other restrictions. Since then, there have been five more demonstrations which at least facially have complied with the TRO. Arnold presents evidence that despite the restrictions imposed, he  can still see and hear the protests.

                II.            Motion/OSC re: Preliminary Injunction

The matter now before the Court is the OSC for preliminary injunction which Plaintiffs seek to enjoin Defendant from undertaking protests before Arnold’s residence.

The ultimate purpose of a preliminary injunction is to preserve the status quo.  Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528. The court may only grant such a preliminary injunction where the Plaintiff has a right to equitable relief if the case goes to trial.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995-998. CCP §526 lists the specific circumstances where an injunction would be appropriate. These grounds include whether Plaintiff appears entitled to the requested relief, whether the requested relief includes a prayer to restrain the actions at issue, whether continued activity would create waste or great or irreparable injury to a party, and whether a party is about to do something regarding the subject matter of the action and tending to render judgment ineffectual, among others.  CCP §526(a).

As is usual with all injunctions, a preliminary injunction will issue only if there is no adequate legal remedy. CCP § 526.  The party seeking the injunction must show an imminent threat of irreparable injury, often equated with an “inadequate legal remedy.”  CCP § 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. 

The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action.  Korean Philadelphia Presbyterian Church, supra.  The court should not grant the injunction if the conduct or injury complained of is not occurring.  Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that later cannot be repaired.  People ex rel. Gow v. Mitchell Bros., Etc. (1981) 118 Cal.App.3d 863, 870-871. Irreparable injury is assumed where the First Amendment rights are threatened or impaired. Elrod v. Burns (1976) 427 U.S. 347, 373-374. However, infringement of other constitutional rights does not necessarily establish irreparable injury. Loder v. City of Glendale (1989) 216 Cal.App.3d 777, 786.

The party seeking a preliminary injunction must also demonstrate a reasonable probability of success. See CCP § 526(a)(1); San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (Miller) (1985) 170 Cal.App.3d 438, 442.   Plaintiff must make a prima facie showing that he is entitled to relief under these standards, but need not rise to the requirements for a final determination.  Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138. Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536, at 1543, provides an example of how to determine whether the plaintiff has satisfied this requirement.  The plaintiff in Scaringe sought to halt construction that would block his view.  The court stated that in order to show a reasonable probability of success, the plaintiff had to demonstrate an enforceable servitude or CCRs.

The court must conduct a two-prong equitable balancing test, weighing the probability of prevailing on the merits against the determination as to who is likely to suffer greater harm.  Robbins v. Sup.Ct. (1985) 38 Cal.3d 199, 206. Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.  This determination involves a mix of the two elements, and the greater the Plaintiff’s showing on one element, the weaker it may be on the other. Butt v. State of Calif. (1992) 4 Cal.4th 668, 678. 

If the court grants a preliminary injunction, it must require an undertaking or a cash deposit.  CCP § 529. The amount must cover any damages to defendant if the court finally determines that plaintiff was not entitled to the injunction.  CCP § 529; see Top Cat Productions, Inc. v. Michael’s Los Feliz (2002) 102 Cal.App.4th 474, 478. The court should thus determine the potential likely harmful effect of the injunction as the basis for the amount. Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14.  The court should include lost profits or other damages as well as costs of defense, but should not consider the strength of plaintiff’s case on this point.  Abba Rubber, supra, 15-16.

             III.            Prohibitory vs. Mandatory Injunctions

“[A]n injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446-448.  (rejecting “preservation of status quo” as test for prohibitory injunction.) In general, an order will be prohibitory if the effect is to leave parties in the same position as they were prior to the order and mandatory if it will change their positions. URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884; Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835; Musicians Club of L. A. v. Superior Court (1958) 165 Cal.App.2d 67, 71.

With respect to preliminary injunction, courts should only grant mandatory preliminary injunctions “in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Ass'n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493; see also, Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App. 5th 1178, 1184; Brown v. Pacifica Found., Inc. (2019) 34 Cal.App.5th 915, 925; Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295; Hagen v. Beth (1897) 118 Cal. 330, 331.

In this instance, Plaintiffs clearly and expressly seek a prohibitory injunction. The injunction requested, like the TRO which this Court granted, seeks to stop the exercise of intermittent conduct in front of Arnold’s house. Plaintiffs seek to prevent Defendant from performing certain acts, it does not require Defendants to take any affirmative act to comply.

             IV.            Likelihood of Success on the Merits

Plaintiffs provide extensive evidence they claim supports their allegations. Defendants argue that Plaintiffs have failed to make an affirmative case showing likelihood of success.

Both parties appear to conflate the probability of prevailing with whether the conduct alleged is capable of being enjoined. Arnold must show that he is likely to prevail on his causes of action, that irreparable harm will be suffered, and that the Court has the authority to enjoin the conduct. Here, the Court addresses the probability of prevailing.

                   A. Correct Defendant

As the Court has addressed above, there are arguments as to whether Defendant is actually the entity in charge of organizing the protests in front of Arnold’s home. Here, the analysis differs only a little, in that the Court assesses the weight of the evidence presented. Generally, Plaintiffs’ evidence is substantially more persuasive than Defendant’s in this regard. Defendant’s declaration in support is of less evidentiary value than their admissions on their website. Accordingly, Plaintiff presents substantial evidence that Defendant is a proper party to enjoin.

​​​​​​​                   B. CCP § 527.6

CCP § 527.6 entitles a person to injunctive relief restraining the conduct of another person from engaging in “harassment”. Id. at subd. (a). “‘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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” Id. at subd. (b)(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, facsimile, or email. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” Id. at subd. (b)(1).

Where protests relate to an issue of public interest, they are “protected activity” under freedom of speech protections. Thomas v. Quintero (2005) 126 Cal.App.4th 635, 661; see also Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1255. Protected activity cannot satisfy the course of conduct necessary to entitle a petitioner to relief under the civil harassment statute. Id. at 663. As the Court analyzed above, the conduct at issue is protected. Given the language of the statute, it does not appear sufficient to state that Defendant’s conduct might be restricted by the Court as explained in Madsen. The statute merely refers “(c)onstitionally protected activity” not being conduct as contemplated by restriction though the statute. CCP § 527.6 (b)(1). As the Court explained above, the conduct alleged here is protected activity, and the language of the statute mimics the language contained in the Anti-SLAPP statute. It does not appear to contemplate “partially” protected activity.

It is clear that the allegations within the FAC derive from issues of public discourse and of issues which are protected as an issue of public interest. Plaintiffs themselves argue that Defendants are politically active, getting measures placed on local ballots. As was noted above, the alleged conduct (and evidence provided related to the injunction) clearly displays activity at least subject to some level of constitutional protection. Accordingly, it cannot be construed as a “course of conduct” under the Civil Harassment statute.

Plaintiffs have not shown any probability of prevailing under CCP § 527.6. Plaintiffs do not display a probability of prevailing on this cause of action as a result.

​​​​​​​                   C. Right to Privacy

“The first essential element of a state constitutional cause of action for invasion of privacy is the identification of a specific, legally protected privacy interest.” Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35. “Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (“informational privacy”); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (“autonomy privacy”).”  Ibid.

“The second essential element of a state constitutional cause of action for invasion of privacy is a reasonable expectation of privacy on plaintiff's part.” Id. at 36. A “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. Ibid. Third, “(a)ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” Ibid.

Plaintiff does not display particularly persuasive probability of prevailing on his right to privacy cause of action. These difficulties become apparent at the first element. Autonomy rights apply to “individual encounters with government” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 30), and Plaintiffs provide no case expanding those claims to private citizens. Plaintiffs’ other arguments are no more persuasive to the merits. Plaintiffs argue the sharing of information (Arnold’s name, address, and image), but Defendant rebuts Plaintiffs’ showing in this regard. Arnold’s image was garnered from his headshot publicly available on a website for an interest group on which Arnold is a member, along with his name. Defendant also provides evidence that the address published to initiate the gathering of protestors is not Arnold’s, but merely one nearby, and protestors thereafter would walk to the protest site. Moreover, as is already addressed, while the conduct at issue is targeted picketing, none of the alleged conduct is a violation of criminal statute. Accordingly, it is entitled to some level of constitutional protection.

Plaintiffs also attempt to parlay this cause of action into extending to Arnold’s “residential” right to privacy. While the Court has addressed the rights of Arnold to have a safe harbor at his home, but that does not appear synonymous with a right to privacy under the California Constitution, as pled for in the Complaint. Accordingly, Plaintiff does not present evidence to meet a probability of prevailing on this cause of action.

​​​​​​​                   D. Intentional Infliction of Emotional Distress

Claims of intentional infliction of emotional destress require: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants' conduct was unprivileged. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 internal citations and quotations omitted. To constitute a basis for emotional distress, the alleged conduct must extend beyond mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. The conduct must be such that on hearing of the alleged conduct an average member of the community would resent the defendant and lead the community member to exclaim, “Outrageous!” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.

“Severe emotional distress means ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’” Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004, quoting Girard v. Ball (1981) 125 Cal.App.3d 772, 787–788. “(T)he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.

Plaintiffs argue the facts alleged and supported by the Arnold Decl. go beyond discussion, confrontation, and garnering of public support which has been held as failing to meet outrageous conduct. Defendants have conducted nine demonstrations in front of Arnold’s home, used a megaphone to amplify their voices, and told his daughter they were “never going to leave.” See Arnold Decl. ¶ 7.

To this end, the constitutional cases cited by the parties provide some guidance. Particularly, in determining whether the continued protest in front of Arnold’s home is outrageous, it appears appropriate to examine what expectations Arnold may be entitled to in those environs.

The Court has already explored much of the applicable jurisprudence above. The Supreme Court has commented that “unwilling listeners may be protected when within their own homes.” Frisby v. Schultz (1988) 487 U.S. 474, 485. There simply is no right to force speech into the home of an unwilling listener. Ibid. “The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Frisby, supra, 487 U.S. at 484; quoting Carey v. Brown (1980) 447 U.S. 455, 471. Conduct violating the sanctity of the home may even be applied to injunctions issued by courts, so long as they are narrowly tailored enough to survive the substantial scrutiny involved, burdening no more speech than necessary to serve a significant government interest. Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 765. The freedom of speech does not generally provide immunities from torts committed with that speech. See, e.g., KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1032 (news reporting where child was informed about a grisly murder was not protected by freedom of speech or press, and stated a claim for intentional infliction of emotional distress.)

The most applicable case appears to be Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247 (“Huntingdon”) disapproved of on other grounds by Cohen v. Superior Court (2024) 102 Cal.App.5th 706. In Huntingdon, a corporation and its employee moved the court for injunctive relief relating to protest activities, including in front of the employee’s house. Id. at 1242. Some protests were quiet, others involved vandalism. Id. at 1245-1246. The Huntingdon court found that the injunction against the entity was justified, but that the injunction against the individual defendant failed on all but one cause of action. Ibid. This is because the individual defendant was only proven to have stood on the sidewalk with protesters and could not be attributed the various illegal activities otherwise applicable to the entity. Id. at 1260.

Plaintiff also states that the use of an electronic device to amplify one’s voice in order to intrude on the respite offered by the home is offensive conduct capable of being outrageous. This goes beyond the principles of protest, and into those designed to compel Arnold to particular action through the imposition of leaving no haven for him to rest. It is, arguably, an invasion into the home to compel the unwilling listener. Frisby v. Schultz (1988) 487 U.S. 474, 485. It is not just the degree of the conduct, but the frequency with which it has been engaged in which raises substantial issues regarding whether the claim is outrageous. This was not a singular protest which occurred in front of Arnold’s home. Defendants appeared at Arnold’s house eight times in the forty-seven days preceding his request for relief.

This case is neither so egregious as Huntingdon, nor as mild as Geiser. In factual patterns, it bears the most resemblance to Madsen. However, that case is only useful to the degree that it displays social norms, and the degree to which conduct may be enjoined by a court in spite of constitutional protection. In spite of this, Huntingdon appears to preclude this cause of action regardless. That Court found that “[individual defendant’s] conduct did not cause [individual plaintiff] actionable emotional distress, and he did not invade her privacy by picketing peacefully in front of her home. [Individual defendant] was on a public sidewalk and a trier of fact could not reasonably find his conduct was highly offensive. Huntingdon, supra, 129 Cal.App.4th at 1260.

As much as the Plaintiffs are persuasive that Arnold is entitled to the sanctity of his home, nonetheless, that does not change the nature of intentional infliction of emotional distress claims. The Court contemplates the repercussions of their position writ large. If disconcerting speech that occurs at the home were entitled to intentional infliction of emotional distress claims simply because of the venue at which it occurs, multitudinous neighbor disputes would suddenly be entitled to such a cause of action, and the term “outrageous” would lose much of its force and effect. While the Court is persuaded that Arnold and his family are experiencing substantial emotional distress, this is not the lone element of the tort alleged. Plaintiff alleges that Defendant has organized conduct which disturbs his peace. However, given that the Court has already found it is entitled to some level of constitutional protection, it is not persuasive to state that the conduct is outrageous sufficient to state the cause of action. Accordingly, Plaintiff fails to present evidence of probability of success on the cause of action for intentional infliction of emotional distress.

​​​​​​​                   E. Doxing

While Plaintiffs filed the instant motion predicated in part on a cause of action under Civil Code § 1790.89, they have since filed a first amended complaint which has dropped the cause of action. Accordingly, they have no probability of prevailing thereon.

​​​​​​​                   ​​​​​​​F. Public Nuisance

Civil Code § 3479 defines nuisance as “(a)nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” “[Nuisance] has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.” City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 585 (“Gypsum”); quoting Prosser and Keeton, Law of Torts (5th ed. 1984) § 86, p. 616.

“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor.” CCP § 731.

“A public nuisance is ‘one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’” Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040 quoting Civ. Code § 3480. “A private party can maintain an action based on a public nuisance ‘if it is specially injurious to himself, but not otherwise.’” Ibid. quoting Civ. Code § 3493. A plaintiff suing for public nuisance “must show special injury to himself of a character different in kind—not merely in degree—from that suffered by the general public.” Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20. Failure to allege damages different in kind, and not just degree, means the cause of action for public nuisance is inadequately pled and cannot be maintained. Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 726; Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041. “Unlike the private nuisance—tied to and designed to vindicate individual ownership interests in land—the “common” or public nuisance emerged from distinctly different historical origins. The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life which the courts have vindicated by equitable remedies since the beginning of the 16th century.” People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.

Plaintiffs provide no case providing a cause of action for nuisance to be derived from the protests, nor does there appear to be one. While nuisance “has meant all things to all people” (Gypsum, supra, 30 Cal.App.4th at 585), protests to this point have been omitted. The furthest courts have ventured under nuisance is restrictions on the right of gang members to congregate. See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1100 (“Gallo”). That case remains distinguishable because the question at issue here is not whether their conduct is protected by freedom of speech, but rather whether the freedom to assemble. Nonetheless, that case provides substantial guidance on the application of nuisance to activities otherwise protected by the First Amendment. In that case, the court issued an injunction at the request of the city attorney in a nuisance action targeted to individuals alleged to be members of a gang in an action brought under the nuisance statute. Ibid. The injunction required that the defendants not gather in groups of two or more in public. Id. at 1121-1122. Our high court found that this was a proper use of both the nuisance statute, and the power of the Court to restrict first amendment rights by burdening no more speech than necessary as addressed in Madsen. Ibid. The Gallo court reiterated, “Freedom of association, in the sense protected by the First Amendment, ‘does not extend to joining with others for the purpose of depriving third parties of their lawful rights.’” Id. at 1112, quoting Madsen, 512 U.S. at 776.

In application, this case blends the considerations of Gallo and Madsen. Gallo was an injunction obtained by a city against the gathering gang-members. Madsen was a post-trial injunction, which included restrictions on targeted picketing before the homes of abortion clinic employees. Madsen does not truly provide jurisprudence related to public nuisance under California law, but it is illustrative of what conduct might be actionable despite First Amendment protection. Gallo provides that its application of injunctions can extend to public nuisance claims. Based on the facts alleged and evidence provided, the application of nuisance here appears appropriate so long as Plaintiff meets the elements.

To the elements, Plaintiff shows damages different in kind from the community at large, and damages applicable to a large enough group to implicate issues of community interest. Prior to the TRO, the protesters would gather directly outside of Arnold’s home and used megaphones. The protests are of sufficient volume that even with the Court’s TRO placing it over 100 feet from Arnold’s property without sound amplification, it can still be heard in Arnold’s home. This presents sufficient evidence for the Court to surprise that the noise from the protests affects substantially more than Arnold, but a number of members of his local community.

As to damages different in kind, Arnold has displayed that he suffers damages different in kind than those which affect the community around him. Arnold is the target of the protest activity. The protestors bear large signs depicting his face and unflattering attributions of “quotes”[1]. These are clearly damaging to Arnold in a manner disguisable from the community at large.

Factually, there is very little dispute between the parties. For the purposes of public nuisance, the facts appear well settled. The protestors, arguably at Defendant’s direction, create noise, intrusion, and scrutiny on an area otherwise entitled to some semblance of peace. Plaintiffs show substantial probability of prevailing on the public nuisance cause of action.

                V.            Irreparable Injury

There is a threat of irreparable harm where there is an “inadequate legal remedy” or where the injury cannot be readily repaired or undone.  CCP § 526(a)(2); see People ex rel. Gow v. Mitchell Brothers’ Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871. 

There are competing issues of harm on each side. The impingement on the sanctity of Arnold’s home must be weighed against the harm in restricting Defendants’ speech. Given that Arnold has expressed not just the ongoing stresses imposed by Defendant on himself, but the burdens experienced by his family due to the ongoing protests. While courts commonly compensate plaintiffs monetarily for such harms, the commonality of injunctive relief in public nuisance claims seems indicative of the type of harm imposed in public nuisance cases. Arnold, and his neighbors, have substantial rights in the peace and tranquility of their homes.

In contrast, the imposition of restrictions on constitutionally protected rights is per se irreparable. Elrod v. Burns (1976) 427 U.S. 347, 373-374. Accordingly, Defendant also has harms in the issuance of the injunction.

In weighing these against one another, these interests weigh near equally. Infliction of mental distress on individuals, including children, and the impact on the community at large appears to counterbalance against Defendant’s constitutional rights.

             VI.            Balancing Test

Both sides present evidence of irreparable harm. Similarly, the Court finds that Plaintiffs’, particularly Arnold’s, probability of success on the merits is significant on at least one cause of action. Plaintiffs make adequate showing for issuance of an injunction to restrict conduct around Arnold’s home.

          VII.            Least Restrictive Means

Finally, the Court analyzes what order would be the least restrictive means of accomplishing the governmental interest would be. As the Supreme Court stated in Madsen, any order must “burden no more speech than necessary.” The Court’s prior order imposed restrictions on the time, place, and manner by which Defendants may protest. Arnold contends that the injunction fails to fully remedy the wrong. There have been five protests since the issuance of the Temporary Restraining Order. Arnold claims that he can still hear protestors, despite the restrictions imposed on the distance the protestors must remain from his home, and the ban on audio amplification equipment.

Plaintiffs have shown that there is a significant right for Arnold to have protection from targeted picketing at his residence, and that these interests sufficiently outweigh Defendant’s right to speech that a restriction on the time place and manner of that speech is appropriate.

Nonetheless, the Temporary Restraining Order appropriately limited the requests, both because certain forms of relief appeared to overreach, and because the Court must burden no more speech than necessary to accomplish the substantial interest at issue. Those considerations remain prevailing. While Arnold asserts on reply that he can still see and hear the protests, he provides no case where that specific relief is given. The purpose of the restriction is to blunt the effect of the protests, and further restriction would burden more speech without necessarily accomplishing greater protective effect. This Court adopts the terms of the TRO previously issued. Plaintiffs will prepare a typewritten copy of the Preliminary Injunction order to be signed by the Court along with this order after submission of an undertaking.

       VIII.            Undertaking

As noted above, if the court grants a preliminary injunction, it must require an undertaking or a cash deposit.  CCP § 529.  The amount must cover any damages to defendant if the court finally determines that plaintiff was not entitled to the injunction.  CCP § 529; see Top Cat Productions, Inc. v. Michael’s Los Feliz (2002) 102 Cal.App.4th 474, 478.  The court should thus determine the potential likely harmful effect of the injunction as the basis for the amount.  Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14.  The court should consider lost profits or other damages as well as costs of defense where trial is necessary to defeat the preliminary injunction, but should not consider the strength of plaintiff’s case on this point.  Abba Rubber, supra, 15-16.  The court also has the authority to waive the bond requirement if it finds that the plaintiff is indigent or unable to obtain sufficient sureties, but the court must weigh all relevant factors.  CCP § 995.240.

There is no showing what damages Defendant may suffer if Plaintiffs do not prevail. As is noted, this really goes to speech rights, and the limits imposed here are narrowly tailored. Accordingly, the undertaking amount is set at $2,000.

             IX.            Conclusion

The motion for preliminary injunction is GRANTED. Plaintiffs will submit an undertaking of $2,000.

Plaintiffs shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

7.         MCV-246903, Johnston Thomas, Attorneys at Law, PC v. Casciani

            Commercial Collection Service, Inc. (“Collection”) moves for an order instructing Paul Casciani (“Judgment Debtor”) and John A. Casciani, Successor Trustee of the Casciani Family Trust (“Obligor”) to assign to Collection the Judgment Debtor’s current and future interest in the Casciani Family Trust and all rights to payment thereunder to the extent necessary to satisfy Plaintiff’s judgment. Collection also moves for an order restraining Judgment Debtor, and those on his behalf, from encumbering, assigning, disposing of, or spending the Judgment Debtor’s current and future interest in all rights to payment from the Obligor.

            On April 8, 2019, a default judgment was entered in this case against Judgment Debtor in the amount of $12,280. On June 25, 2020, an assignment of the judgment was filed showing the judgment was assigned to Collection. As of the date of the motion, the amount owed, including interest, is $18,307.64. (Jeffrey decl., ¶3.) Interest accrues at $3.36 per day. (Ibid.)

            Code Civ. Proc., § 708.510 provides: “Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments…”

            “Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:

            “(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.

            “(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.

            “(3) The amount remaining due on the money judgment.

            “(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.” (Code Civ. Proc., § 708.510(c).)

            On March 26, 2025, Collection’s counsel received an email from Judgment Debtor’s brother, John Casciani, stating that his and Judgment Debtor’s mother had passed away and that her property was in a trust. (Jeffrey decl., ¶2.) The trust contains assets that will, in part, be distributed to Judgment Debtor. (Id., ¶¶2-3.) As such, it is appropriate under CCP section 708.510 to order the trustee of the trust to assign the amount owed from Judgment Debtor to Collection.

            Collection’s request for a restraining order pursuant to CCP section 708.520 is also appropriate.

            The motion is GRANTED. Plaintiff’s counsel is directed to submit a written order to the court consistent with this ruling.

 

8.         SCV-271076, Bravo Building Co., Inc. v. Pelosi

            Weston Law Group, PC, and attorney Stephanie Meyer move to be relieved as counsel for Plaintiff Bravo Building Col., Inc. (“Plaintiff”). Subsequent to the filing of this motion, Plaintiff filed substitution of counsel naming David Ginn as their new attorney of record. Accordingly, this motion is dropped as MOOT.

 

 

[1] It appears, but isn’t particularly addressed by the parties, that these statements are not attributable to Arnold, but are narrative by protestors.

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