Thursday, July 25 2019
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Ninth Circuit:
Court May Bar Messages Linking Company To Employee’s Alleged Child Molestation
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has found no merit to a defendant’s claim in a civil action that it is an unconstitutional prior restraint to bar any future statement by him tying the plaintiff, a technology company, to allegations that one of its employees engages in child molestation and other specified misconduct.
The memorandum opinion, filed Tuesday, affirms a default judgment by the District Court for the Central District of California against Charles Jerome Broquard based on a terminating sanction imposed because he refused to participate in the discovery process. The opinion does not consider the unadjudicated issue of whether the enjoined allegations were false.
A permanent injunction was issued in an action against Charles Jerome Broquard, 77, of Marina del Rey who allegedly mounted a hate campaign against Frank Iacovelli, the stepfather of his biological son and an employee of plaintiff aPriori Technologies Inc., headquartered in Massachusetts. Also sued was Reid Douglas Field, responsible for disseminating accusations against Iacovelli on a website and through an email campaign aimed at aPriori’s customers and employees.
APriori alleged defamation, intentional interference with prospective economic advantage, and extortion. Its first amendment complaint claims:
“Mr. Broquard has spent the past several years harassing Mr. Iacovelli, and accusing him of being a child abuser and pedophile. Recently, Mr. Broquard has extended his campaign of defamation and harassment to include aPriori.”
Other Averments
The pleading adds:
“In addition, Mr. Broquard, who is already enjoined by the Los Angeles Superior Court from maintaining the website and making such statements insofar as they concern Mr. Iacovelli or his family, has enlisted Mr. Field to stand outside holding signs alleging Mr. Iacovelli to be a child molester or pedophile. On December 7-8, 2016, Mr. Field stood with such a sign outside the corporate headquarters of one of aPriori’s important customers that is in the midst of a contract renewal worth hundreds of thousands of dollars.”
The prayer asks that Broquard and Field be barred from mentioning aPriori in connection with its allegations against Iacovelli. It said in a motion that such relief “would not restrain Mr. Broquard from undertaking any conduct that he has a right to do.”
Based on a Sept. 28, 2017 recommendation by Magistrate Judge Karen L. Stevenson, District Court Judge John A. Kronstadt of the Central District of California on Nov. 3 of that year ordered that a default judgment be entered against Broquard as a sanction for refusing to cooperate in discovery. (Kronstadt subsequently granted a similar motion as to Field.)
Kronstadt’s Order
Kronstadt’s Nov. 22, 2017 judgment and order provides that Broquard and those acting under him, with knowledge of the order are “permanently restrained and enjoined” from:
“a. Making any statement that refers to both aPriori or its officers, customers, investors, or affiliates, and Mr. Frank Iacovelli with respect to his alleged acts of child endangerment. child abuse or child molestation.
“b. Making any statement that refers to both aPriori or its officers, customers, investors, or affiliates, and child endangerment, child abuse, or child molestation on the websites www.frankjoseplnacovelli.com, www.badbadfrank.com, or any similar website created or controlled by Broquard.
“c. E-mailing any customer of aPriori, or any entity or person that Broquard knows, or has a reasonable basis to know, is a customer of aPriori, About Mr. Iacovelli regarding child endangerment, child abuse or child molestation.”
While the pleading states that “aPriori has conducted an investigation and is aware of no basis for the allegations that Mr. Iacovelli is a child abuser, child molester, or pedophile, and believes that any such allegations are factually untrue,” there is no allegation by the plaintiff that the allegations are, in fact, untrue, and no District Court finding that the enjoined utterances are falsehoods.
The Ninth Circuit’s memorandum opinion, filed Tuesday, disposes of Broquard’s First Amendment argument, as well as two others, in a single sentence. It says:
“Broquard’s contentions that the injunction violates his First Amendment rights, the district court violated his due process rights, and the district court was biased and prejudiced against him, are unpersuasive.”
It also affirms the terminating sanction, recommended by Stevenson, based on discovery abuses. In her report, she noted that Broquard contended that discovery was stayed because he had filed anti-SLAPP motion in a Los Angeles Superior Court family law case related to the dispute in the District Court.
Stevenson wrote:
“[I]t is apparent that Broquard has systematically refused to cooperate in discovery in this case. Moreover, Broquard’s refusal to answer written discovery based on the anti-SLAPP motion is without merit. As Plaintiff correctly notes, although California Civil Procedure Code section 425.16(g) limits state court discovery pending an anti-SLAPP motion, these limits to do not apply in federal court.”
Without addressing Broquard’s proffered excuse that the filing of the anti-SLAPP motion barred discovery in the federal matter or that responding to questions could have a negative effect on state criminal proceedings against him—a basis also rejected by Stevenson—the Ninth Circuit panel said:
“The district court did not abuse its discretion by entering default judgment and a permanent injunction against Broquard because Broquard failed to comply with court-ordered discovery….
“To the extent Broquard argues that his conduct was not willful, Broquard did not show that his failure to comply with court-ordered discovery was due to circumstances beyond his control.”
The case is Apriori Technologies, Inc. v. Broquard, 17-56772
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