Monday, November 28, 2016
Court of Appeal Holds:
Man May Be Restrained From Bad-Mouthing Son-in-Law
However, Restraining Order Is Found Lacking in Precision, Must Be Re-Drafted
By a MetNews Staff Writer
The First District Court of Appeal has held that it was permissible for a judge to order that a man desist from bad-mouthing his son-in-law, as he had wrongfully done in the past, but sent the case back for a more definite description of what speech is barred.
The opinion was issued Wednesday in the case of Parisi v. Mazzaferro, A14564. Justice Terence L. Bruiniers of the First District’s Div. Five wrote the opinion.
The appellant is Ronald Mazzaferro, who contended that a restraining order imposed on him constitutes an unlawful prior restraint, in violation of the First Amendment.
Mazzaferro has filed 21 cases against his son-in-law, William Parisi—some in state court, some in federal court—and has been declared a vexatious litigant.
His conduct has included uttering numerous baseless accusations against Parisi, including:
•Writing to realtors, terming Parisi “scum of the earth filth who preys on the elderly,” accusing him of various sorts of misconduct, and insisting he was about to be arrested for obstruction of justice and “numerous felonies.”
•Sending a letter to the son-in-law’s employer demanding that he be “fired forthwith,” telling of various sorts of “criminal activity” on his part.
•Alleging in a letter to local businesses that Parisi was “associated with” a “convicted felon embezzler” and committed “criminal frauds.”
•Reporting to the city attorney that Parisi had stalked him and accosted him, while in a “drug induced violent rage,” in a supermarket parking lot.
At the hearing on the restraining order, Alameda Superior Court Judge Julie Conger (now retired) told Mazzaferro:
“I do not believe you, sir. I believe that you have given false testimony. I am afraid that I—there is just too much to contradict your denials; specifically, the letters that I have reviewed put me in the feeling that you—I cannot believe the remainder of your testimony.”
“Despite Mazzaferro’s insistence otherwise, the record before us amply demonstrates he engaged in a course of conduct serving no legitimate purpose, evidencing a continuity of purpose that would cause a reasonable person to suffer substantial emotional distress, and which actually caused substantial emotional distress to Parisi….Notwithstanding Mazzaferro’s protests of “absolute truth,” the trial court could also reasonably infer that Mazzaferro was engaged in a persistent and malicious campaign to unjustifiably damage Parisi’s reputation and interfere with his employment.”
The falsity of Mazzaferro’s allegations, the jurist wrote, rendered them unworthy of protection.
“While First Amendment protection is required for free and uninhibited discussion of public issues,” he said, “important social values underlie the law of defamation,” with the public interest be served by stemming the distribution of falsehoods.
However, he found fault with the wording of the restraining order.
It barred him from writing “letters to any third party that within the context of the letters attached as exhibits to the Memorandum of Points and Authorities in Support of Civil Harassment Restraining Order filed in this matter could be interpreted as a pattern of conduct with the intent to harass William Parisi or his immediate family”
It also required that “[p]rior to any written communication to any government agency (federal state or municipal) that contains the name of any [protected person], whether in the form of a letter, petition, or otherwise” to “convey a copy of the proposed communication to this Court,” as well as Parisi’s lawyer.
Mazzaferro charged that these requirements amounted to an unlawful prior restraint on his right of free expression.
“We agree in part,” Bruiniers said, “finding the terms of the order require more precise definition in order to pass constitutional muster.”
The prohibition on writing letters resembling past offensive missives, the jurist said, was “impermissibly vague and relies on entirely subjective interpretation to determine both prohibited content and intent.”
Requiring approval of the court before sending complaints about Parisi to government agencies, he continued, “is also problematic in certain aspects.” He pointed out that Mazzaferro “may not be constitutionally restrained from true petitioning activity to government officials.”
No Case Found
“[W]e find no case that would allow a California court to serve as a gatekeeper for access to a federal forum. Mazzaferro may be restrained from interfering with Parisi’s employment, and from reiterating defamatory statements not otherwise privileged, but the court may not separately restrain his access to judicial or administrative forums.”
The requirement that Mazzaferro post a bond as security for Parisi’s attorney fees in the event further proceedings of a meritless nature were instituited by Mazzaferro was upheld. Bruiniers said:
“We believe the order is within the court’s equitable authority under its retained jurisdiction, in order to enforce the terms of the restraining order and prevent Mazzaferro from continuing his campaign of harassment….The court was cognizant that Mazzaferro previously had been undeterred by judicial sanctions, and monetary sanctions against him could not likely be enforced. Requiring Mazzaferro to provide security for Parisi’s costs in the event Mazzaferro sought affirmative relief without justification was not an abuse of discretion under these circumstances.”
Copyright 2016, Metropolitan News Company