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David Casey
230 E Park Ave
Escondido, CA 92025
dave@caseylegal.org
(619) 929-0065
SBN 285704

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Attorney for Respondent

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

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CENTRAL DISTRICT
SEAN RICHARD WEBER,

CASE NO. BS 168929

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Petitioner,

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RESPONDENT'S OPPOSITION TO
REQUEST FOR CIVIL HARASSMENT
RESTRAINING ORDER

vs.
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BRETT HADDOCK,

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Respondent.
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Hearing Date: June 20, 2017
Time: 8:30am
Dept. 2C
Complaint filed on: May 9, 2017

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Respondent Brett Haddock ("Respondent") respectfully submits this Answer to the Request filed
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by Sean Weber ("Petitioner"), dated May 9, 2017.
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-1RESPONDENTS OPPOSITION

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TABLE OF CONTENTS

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SUMMARY OF ARGUMENT

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I.

PETITIONER CANNOT PROVE A WILLFUL COURSE OF CONDUCT

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II.

PETITIONER'S CRIMINAL PAST IS ARGUABLY A MATTER OF PUBLIC

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CONCERN

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III.

PETITIONER'S REQUEST IS SIMPLY GAMESMANSHIP

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IV.

PETITIONER CANNOT JUSTIFY INJUNCTIVE RELIEF

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A. Petitioner Cannot Prevail On The Merits Because The Relief Sought Is An

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Unconstitutional Prior Restraint.

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B. Prior Restraints Are Antithetical To The First Amendment Rights At The Core Of Our

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Democratic System.

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v.

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PLEADING THE CLAIM AS HARASSMENT

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VI.

THE FORM OF RELIEF REQUESTED BY PETITIONER IS IMPROPER

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VII.

CONCLUSION

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PETITIONER CANNOT AVOID STRICTURES OF DEFAMATION LAW BY

TABLE OF AUTHORITIES

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Cases

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Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988)

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Alexander v. United States, 509 U.S. 544, 550 (1993)

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Carroll v. Princess Anne (1968) 393 U.S. 175, 183-184

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ComputerXpress, supra, 93 Cal.App.4th 993, 1006, 113 Cal.Rptr.2d 625

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Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 475

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Evans v. Evans 162 Cal.App.4th 1157 (2008)

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Gilbert v. Sykes (2007) 147 Cal.App.4th 13

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Gold v. Los Angeles Democratic League (1975) 49 CA3d 365, 372, 122 CR 732].

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Hurvitz v. Hoefflin, supra, 84 Cal.App.4th at p. 1241

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Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

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In re M.S. (1995) 10 Cal.4th 698, 710, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)
-2RESPONDENTS OPPOSITION

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Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1225

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Metropolitan Opera Ass'n, Inc. v. Local 100 (2d Cir. 2001) 239 F.3d 172, 176

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NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-34 (1982)

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Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976)

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New Net v. Lavasoft, 356 F. Supp. 2d 1071 (C.D. Cal. 2003)

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Noel v. River Hills Wilsons, Inc., 7 Cal. Rptr. 3d 216, 224 (Cal. Ct. App. 2003)

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Organization for a Better Austin v. Keefe

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Scripps Health v. Marin (1999) 72 CA4th 324, 332

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Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011)

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Terminiello v. City of Chicago (1949) 337 U.S. 1, 4

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Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895, 17 Cal.Rptr.3d 497

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Statutes

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California Code of Civil Procedure section 525

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California Code of Civil Procedure section 527.6

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Constitutional Provisions

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Cal. Const., art. I,§ 2, subd. (a).) ... passim

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U.S. Const. amend. I ... passim

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Secondary Sources

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Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings Law Journal 781, 850

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(2012)

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Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 251 (2007)

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-3RESPONDENTS OPPOSITION

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SUMMARY OF ARGUMENT

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Petitioner Sean Weber is upset that a political competitor for a city council position has

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published truthful, but unflattering, information concerning Petitioner's criminal record

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concerning a witness intimidation conviction. After repeatedly threatening to bring a libel action

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against Respondent Brett Haddock, Petitioner now views a civil harassment petition as a cost-

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effective and expedient tool to restrain his critics. The petition is premised entirely on

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constitutionally-protected speech -- political speech a:nd requests for comment far short of the "no

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legitimate purpose" standard -- and unsupported insinuations that Respondent is responsible for

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mysterious sounds in the bushes.

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ARGUMENT

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I. PETITIONER CANNOT PROVE A WILLFUL COURSE OF CONDUCT

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Under California law,

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"Harassment" is unlawful violence, a credible threat of violence, or a knowing and

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willful course of conduct directed at a specific person that seriously alarms, annoys, or

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harasses the person, and that serves no legitimate purpose. The course of conduct must

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be that which would cause a reasonable person to suffer substantial emotional distress,

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and must actually cause substantial emotional distress to the petitioner.

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California Code Of Civil Procedure§ 527.6(b)(3).

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Here, the totality of the conduct alleged took place online, which affords the Petitioner the

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unique position to be able to easily display the Respondent's offensive conduct for all to see. Mr.

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Weber had every opportunity to simply 'screen shot' 1 each and every offending message to show

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the court Respondent's course of behavior that is so egregious that caused Mr. Weber to fear "for

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his safety and that of his family." (Petitioner's CH-100 at 3). It is telling that Petitioner did no

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such thing, and as this Court can surmise by the exhibits the Respondent includes in this answer,

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no such offensive behavior exists.

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1A

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digital image created by the operating system or software running on the device, but it can also be a
photograph
-4RESPONDENTS OPPOSITION

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Respondent fully admits to being a thorn in the Petitioner's side, perhaps even to an unfair

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degree, but this conduct never rises to a course of harassing conduct. Mr. Haddock's private

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interactions with the Petitioner are at best infrequent, and at worst, uncivil. The last private

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message Respondent sent Mr. Weber was first to obtain a comment to a story he was writing, and

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no further messages were sent in the month between April 12 and the filing of this Request.

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(Exhibit 1) This is hardly a course of conduct so terrible that the court needs concern itself with.

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Petitioner further asks this Court to forbid Respondent from "indirect contact" which

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would amount to an unlawful prior restraint of Mr. Haddock's ability to discuss Petitioner in a

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public setting in an online forum. 2 However, Petitioner claims that Mr. Haddock's private

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interactions with him are so awful as to create an ever-increasing fear for his safety, which is not,

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and cannot be supported by the evidence. Therefore, just on the absence of evidence alone, the

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Court must dismiss this Request.

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II. PETITIONER'S CRIMINAL PAST IS ARGUABLY A MATTER OF PUBLIC

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CONCERN

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Those four words of§ 527.6(b)(3) "serves no legitimate purpose" kills any hope of Mr.

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Weber succeeding on this Request. In Petitioner's own words, he and Respondent are political

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rivals. Because of the recent attempt by both the Petitioner and the Respondent to obtain a seat on

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Santa Clarita City Council, both parties (as well as dozens of others) have had some fiery and

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emotional interactions discussing politics on Facebook. As a result of those interactions,

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Respondent drafted and posted a break down of Mr. Weber's various public claims that he had

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made before, during, and since the city council race (the "Post" attached as Exhibit 3). The most

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inflammatory section of the Post dealt with Mr. Weber's criminal past. Evidently at some point,

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Mr. Weber had bragged that he worked in a homeless shelter, possibly in order to appear

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altruistic. In reality, it was because Mr. Weber was convicted in 2004 of dissuading a witness by

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force or threat, and as part of his plea deal, he agreed to do community service.

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If a Facebook user 'mentions' another user by his or her user name, under default settings, it will give the
mentioned user a notification in a separate column.

-5RESPONDENTS OPPOSITION

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To that end, Respondent posted the publicly available court documents, which reflect the

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same. (Exhibit 3) However, Respondent made one change to the documents before posting them:

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he removed Petitioner's address and phone number. As the Court can see, nowhere in these edited

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documents does Mr. Weber's or Ms. Swiecicki's address or phone number appear. Even if Mr.

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Weber's address somehow slipped through Respondent's edits, Petitioner cannot show that

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posting publicly available court documents creates or even supports the basis of any harassment

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action. This Court can plainly see that at no point in Respondent's Post does Mr. Haddock

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encourage or incite others to contact, bother, harass or annoy the Petitioner or his family.

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Knowing Petitioner's tendency to threaten litigation against Respondent and others on

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Facebook, Mr. Haddock reached out on April 12 to seek comment about the article he was

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drafting. (Exhibit 1) As this Court is aware, the question of actual malice in a defamation action

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considers whether a defendant sought comment from the plaintiff. Hoping to forestall a

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defamation lawsuit, Mr. Haddock made sure the Petitioner had an opportunity to clarify before he

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published his article. Considering Mr. Weber's notoriously combative behavior, this was a limited

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contact for a legitimate purpose, despite Mr. Weber's request that Respondent no longer contact

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him.

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"This public interest finds expression in New York Times Co. v. Sullivan and its progeny,

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which establish that [ ... ] people who reap the benefits of public power or notoriety need to

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develop thick skin." Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings

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Law Journal 781, 850 (2012). To that end, if Mr. Weber wants to remain in the public eye

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regarding political causes, he cannot create a loophole to the First Amendment just because he

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has a thin, skin when it comes to his past.

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III.PETITIONER'S REQUEST IS SIMPLY GAMESMANSHIP

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Petitioner claims that giving Mr. Haddock any advance notice of this hearing would have

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been useless because he believes Mr. Haddock would (amongst other things) "Attempt to destroy

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and/or conceal electronic records and evidence." (Declaration of Ex Parte Notice) However, as

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stated above, Petitioner betrays that any and all evidence of this alleged harassment took place

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online, meaning Petitioner had every opportunity to preserve the evidence himself. Further,
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providing the screen shots himself would allow him to prove whether Respondent's exhibits were

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not somehow electronically altered after the fact. Because the onus is on Petitioner to prove this

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course of harassment ever existed, it is telling that while it would not be difficult for him to

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provide this Court with evidence, he took absolutely no steps to do so.

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The second reason Mr. Haddock could not know about this case ahead of time was out of

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a purported fear that he might "Take retalitory [sic] actions against Petitioner & his family as he

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has 2 open lawsuits wherein he alleges psych injury." (Declaration of Ex Parte Notice) Curious

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that in a case where the Petitioner accuses Respondent of stalking him because Respondent

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posted publicly available information, that Petitioner mischaracterizes a workers compensation

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claim for a back injury against him. This worker's compensation claim, which is generally not

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publicly available, refers to Mr. Haddock's previous unrelated work injury, and his attorney

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added a psych-related component to the claim because of Mr. Haddock's difficulty sleeping and

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stress at having to deal with the injury. (Exhibit 4) However, Petitioner was almost certainly

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unaware of this claim until he began an investigation related to this Request, so it is transparent

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that he then uses this discovery as a reason to avoid serving Mr. Haddock until the last possible

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second. Further, I would ask this Court to take judicial notice of this compensation claim (Exhibit

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4). After examining this compensation claim, Petitioner knowi~gly and deliberately

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mischaracterized the nature of Respondent's claim in order to invent a reason for him to be

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fearful of someone. It strains credulity that Mr. Weber is afraid of someone because they recently

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underwent back surgery and is having difficulty sleeping.

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Several times within the Request, Petitioner makes reference to fearing for his safety,

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"incessant day and night cyber harassment" and concern for retaliatory action, yet despite having

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the opportunity to show any foundation for such concerns, Petitioner decides not to. As this Court

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can see, Respondent's last private interaction with Petitioner was a request for comment on April

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12. Surely between then and May 9, Petitioner had the time to write up a short list ofreasons he

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might fear for his safety. Between May 9 and the service of this Request on Respondent,

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Petitioner had the opportunity to amend his filing, or entirely dismiss the original request and re-

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file it with exhibits without injury or embarrassment. Further, if Respondent's actions were so
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terrible as to cause harassment "day and night" and both friends and family to fear for their

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safety, surely time would be of the essence. Therefore it becomes clear that this Request is not

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about harassment, Petitioner's Request is simply an attempt to bypass an expensive defamation

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case. Petition claims that he was so seriously alarmed and fearful that he waited an entire month

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to file for emergency relief, and then waited weeks to try the one thing that would immediately

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provide that relief - serving the Respondent.

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IV.PETITIONER CANNOT JUSTIFY ANY INJUNCTIVE RELIEF

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The Ninth Circuit recognizes that "an injunction is a 'harsh and drastic' discretionary

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remedy, never an absolute right." Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988). For

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this reason, courts have rejected attempts to obtain preliminary injunctive relief against Internet

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speech. New Net v. Lavasoft, 356 F. Supp. 2d 1071 (C.D. Cal. 2003)3. A preliminary injunction

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may only issue upon a showing that: (1) the moving party will suffer irreparable injury if

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injunctive relief is not granted, (2) the moving party probably will prevail on the merits, (3) the

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moving party will be helped more than the non-moving party will be harmed by the injunction,

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and (4) granting the preliminary injunction is in the public interest. Petitioner has not

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acknowledged this burden, nor made any attempt to explain how he exceeds these strict

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requirements. Therefore, Petitioner's harm becomes purely speculative compared to Respondent's

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First Amendment rights.

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A. Petitioner Cannot Prevail On The Merits Because The Relief Sought Is An

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Unconstitutional Prior Restraint.

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On its face, Petitioner's Request makes several references to Respondent's conduct in

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online forums (specifically, Facebook groups). The First Amendment protects "expression that

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engages in some fashion in public dialogue, that is, ' "communication in which the participants

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seek to persuade, or are persuaded; communication which is about changing or maintaining

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beliefs, or taking or refusing to take action on the basis of one's beliefs .... "' "(In re M.S. (1995)
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10 Cal.4th 698, 710)

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Holding that a preliminary injunction is improper when there has been no prior adjudication of falsity.
-8RESPONDENTS OPPOSITION

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Should Petitioner hope to ask this Court to limit Respondent's ability to participate in

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these or any online forums, that request would constitute prior restraint of Respondent's actions.

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Injunctions limiting future speech are a "classic" form of prior restraint, and prior restraints "are

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the most serious and the least tolerable infringement on First Amendment rights." Neb. Press

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Ass'n v. Stuart, 427 U.S. 539, 559 (1976). A court order prohibiting publication constitutes such

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a prior restraint. Alexander v. United States, 509 U.S. 544, 550 (1993).
More than just public concern, virtually all of Respondent's purportedly offensive speech

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took place in a public forum. "Cases construing the term 'public forum' ... have noted that the

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term 'is traditionally defined as a place that is open to the public where information is freely

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exchanged.' (Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 475.) 'Under

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its plain meaning, a public forum is not limited to a physical setting, but also includes other forms

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of public communication.'" (ComputerXpress, supra, 93 Cal.App.4th 993, 1006, 113 Cal.Rptr.2d

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625.) Statements on Facebook.com are accessible to anyone who chooses to visit the site, and

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thus they "hardly could be more public." (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895, 17

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Cal.Rptr.3d 497; ComputerXpress, at p. 1007, 113 Cal.Rptr.2d 625.)

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"Petitioners were engaged openly and vigorously in making the public aware of

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respondent's ... practices. Those practices were offensive to them, as the views and practices of

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petitioners are no doubt offensive to others. But so long as the means are peaceful, the

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communication need not meet standards of acceptability." Organization for a Better Austin v.

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Keefe

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Thus, any attempt here to obtain any injunction against Respondent falls within the

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definition of a "prior restraint" as a "judicial order forbidding certain communications when

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issued in advance of the time that such communications are to occur." (Alexander v. United

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States, supra, 509 U.S. at p. 550)

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B. Prior Restraints Are Antithetical To The First Amendment Rights At The Core

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Of Our Democratic System.

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As the United States Supreme Court has recognized, restraining publication of

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information undermines the "main purpose" of the First Amendment, which is "to prevent all
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such previous restraints upon publications as [have] been practiced by other governments."

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Nebraska Press, 427 US at 557 (quoting Patterson v. Colorado, 205 US 454, 462).
Speech "may indeed best serve its high purpose when it induces a condition of unrest,

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creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often

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provocative and challenging. It may strike at prejudices and preconceptions and have profound

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unsettling effects as it presses for acceptance of an idea." (Terminiello v. City of Chicago (1949)

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337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131.) Thus, prior restraints are highly disfavored and

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presumptively violate the First Amendment. (Maggi v. Superior Court (2004) 119 Cal.App.4th

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1218, 12254 • This is true even when the speech is expected to be of the type that is not

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constitutionally protected. (Near v. Minnesota, supra, 283 U.S. at pp. 704-705). 5

An order prohibiting a party from making or publishing false statements is a classic type

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of an unconstitutional prior restraint. (See Metropolitan Opera Ass'n, Inc. v. Local I 00 (2d Cir.

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2001) 239 F .3d 172, 176.) "While [a party may be] held responsible for abusing his right to speak

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freely in a subsequent tort action, he has the initial right to speak freely without censorship."

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(Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1145 [51 Cal.Rptr.2d 91].)

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Thus, any attempt to forbid Mr. Haddock from speaking in the future constitutes prior

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restraint of his free speech rights. And as in these cases, Petitioner has not and cannot meet the

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incredible burden of proving that his desire to not be spoken about outweighs Mr. Haddock's

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rights. Consequently, his request for an injunction must be rejected.

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V. PETITIONER CANNOT AVOID STRICTURES OF DEFAMATION LAW BY

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PLEADING THE CLAIM AS HARASSMENT

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Petitioner should not be able to evade the limits on defamation law (many of them

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constitutionally mandated) by redesignating this claim as 'civil harassment.' The Supreme Court

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has consistently held that whenever the gist of a claim is injury to reputation, the plaintiff must

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adhere to the constitutional standards for defamation. Noel v. River Hills Wilsons, Inc., 7 Cal.

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See also: Hurvitz v. Hoefflin, supra, 84 Cal.App.4th at p. 1241.

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Rejecting restraint on publication of any periodical containing "malicious, scandalous and defamatory"
matter.

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Rptr. 3d 216, 224 (Cal. Ct. App. 2003). 6 7 Using a civil harassment action to decide whether

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derogatory public messages create a fear for one's safety is a waste of this court's time.

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(Petitioner's CH-100 at Page 3).

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Petitioner claims that the alleged speech by Respondent caused him emotional distress.

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Speech about a petitioner may be emotionally distressing for reasons other than its defamatory

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effect on reputation, such as messages that condemn or express dislike for the Petitioner.

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However, the Supreme Court has fo~d such speech to be constitutionally protected, at least

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where the speech involves topics of public concern. See Snyder v. Phelps, 131 S. Ct. 1207, 1220

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(2011); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-34 (1982).

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Here, despite having every opportunity to do so, the Petitioner makes no attempts to show

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Mr. Haddock ever directly contacted him. In fact, the only communications provided to this Court

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are Respondent's Exhibits 1 and 2. This is hardly a 'course of conduct' as defined by Section

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527.6(b)(l). In addition, if this conduct is the basis of the harassment claim, Petitioner waited

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several weeks before seeking redress through this Court, while no further contact had been

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reported. Further, 527.6(b)(l) disallows constitutionally protected activity from being used to

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define a course of conduct. Lastly, 527(b )(3) requires the alleged course of conduct be directed at

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the petitioner. Here, Petitioner claims harassment via private messages, but has made no attempt

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to personally show Mr. Haddock communicating with or at him directly in any way. The court

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should ask itself whether it is more likely that a professional web developer couldn't figure out

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how to screen shot a series of harassing Facebook messages, or that no such messages exist.

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Because there has been no trial and no determination on the merits that any statement

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made by Mr. Haddock was defamatory or derogatory, the court cannot prohibit him from making

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statements even if the court only forbade statements about petitioner that are characterized as

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"[P]laintiffs may not avoid the strictures of defamation law by artfully pleading their defamation claims
to sound in other areas of tort law."

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See also: Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

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-11RESPONDENTS OPPOSITION

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"false and defamatory." Evans v. Evans 162 Cal.App.4th 1157 (2008). 8 Such a sweeping

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prohibition would fail to adequately delineate which of Mr. Haddock's future comments might

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violate the injunction and lead to contempt of court. (See Balboa Island, supra, 40 Cal.4th at p.

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1159.).

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VI. THE FORM OF RELIEF REQUESTED BY PETITIONER IS IMPROPER

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The only truly efficacious injunction against an alleged serial defamer would take the

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form of "do not tell lies about petitioner" or "do not say anything about petitioner." Such orders

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are hopelessly vague and overbroad, respectively. Given that the purpose of an injunction is to

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preventfuture harm to the applicant by ordering the opposing party to refrain from doing a

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particular act, [see CCP § 525], injunctive relief is available only to prevent threatened injury and

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has no application to wrongful acts that have been completed [Scripps Health v. Marin (1999) 72

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CA4th 324, 332. 9 Further, any permissible order "must be couched in the narrowest terms that

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will accomplish the pin-pointed objective permitted by constitutional mandate and the essential

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needs of the public order.... " (Carroll v. Princess Anne (1968) 393 U.S. 175, 183-184). Here,

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requesting that Mr. Haddock never make any reference to the petitioner on the internet would be

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so vague and overbroad as to be untenable.

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The only genuinely content neutral injunction that could stop undesired speech about

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petitioner would be this: "Respondent may not communicate with anyone about anything."

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However, "[n]o prior decisions support the claim that the interest of an individual in being free

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from public criticism of his business practices ... warrants use of the injunctive power of a court."

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Organization for a Better Austin v. Keefe

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The proper scope for civil harassment orders is to ban future contact with and surveillance

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of the petitioner-not to ban expression to others- even when petitioner is the subject matter of

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that expression. As a practical matter, obeying the rule against prior restraints causes no real harm

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for petitioners, because any injunction against specific utterances would inevitably be too narrow

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8

See also Balboa Island, supra, 40 Cal.4th at p. 1158; Wilson v. Superior Court (1975) 13 Cal.3d 652,
658-659 [119 Cal.Rptr. 468, 532 P.2d 116].

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See also Gold v. Los Angeles Democratic League (1975) 49 CA3d 365, 372

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-12RESPONDENTS OPPOSITION

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to provide the desired relief. Erwin Chemerinsky, Injunctions in D~famation Cases, 57 Syracuse

2

L. Rev. 157, 251 (2007)

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VII. CONCLUSION

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Political speech is at the core of the First Amendment, and much of what Petitioner

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complains about is outward speech, not speech to a captive audience -- so while Petitioner is the

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subject of much ofit, it's "directed at" the public. Respondent's requests for comment are

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legitimate purposes because Petitioner had repeatedly threatened libel actions and the question of

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actual malice in a defamation action considers whether a defendant sought comment from the

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plaintiff, The limited contact directed at Petitioner - the Facebook messages, e.g., is not only

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protected speech serving a legitimate purpose, but falls far short of conduct that "seriously alanns,

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annoys, or harasses" the person. On top of that, Petitioner waited a significant period of time not

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only to file the action, but then attempt to serve it, is indfoia of how un-alann.ed Petitioner is.

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In summation, this case is an improper attempt by the petitioner to use the court's civil

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harassment docket to adjudicate defamation claims as a means to avoid the risk of a defamation

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lawsuit. Requesting a court c:iemand that Mr. Haddock never mention the petitioner on the internet

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is at best optimistic, generally unlawful, and at worst, foolish.

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WHEREFORE,. Respondent respectfully requests that the Court enter judgment in his

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favor and against SEAN WEBER, dismissing petitioner's claims with prejudice and awarding

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such other relief as the Court deems appropriate. Pursuant to CCP §527 .6(i), Respondent further

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requests that the Court award Respondent's attorney's fees as well.

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Dated: June 16, 2017

Sincerely,

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Byl::A-~
DAVID A. CASEY
Attorney for Respondent

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-13RESPONDENTS OPPOSITION