Metropolitan News-Enterprise


Monday, August 30, 2021


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Restraining Order May Be Based on Pattern of Insults Using Foul Language, C.A. Rules


By a MetNews Staff Writer


A woman who repeatedly shouted insults at her neighbors, using foul language, was properly subjected to a civil restraining order, the First District Court of Appeal has held, rejecting her contention that such conduct cannot not meet the statutory requisite of causing “substantial emotional distress to the petitioner.”

That requirement is set forth in Code of Civil Procedure §527.6(a)(1)—and, Justice Gabriel P. Sanchez of Div. One said in Thursday’s unpublished opinion, it was met under the facts of the case.

The restraining order was imposed by San Francisco Superior Court Judge Gerardo Sandoval on Katherine Cox, who lived across the street from David J. Mottram and Annamarie Mottram. The Mottrams incurred Cox’s enmity by virtue of David Mottram telephoning the police on April 18, 2019, when he and his wife, from their house, saw Cox hitting, shoving and slapping her 12-year-old son in the kitchen of their abode.

Profanity Spewed

Incidents occurred after that entailing Cox, in an angered state, bellowing profanities at the Mottrams. In testimony at a July 30, 2020 hearing on a permanent restraining order, she acknowledged having done so on a few occasions, but denied some of the episodes described by the Mottrams, and insisted that they sparked her ire by videotaping her and her family and spying on them with binoculars.

At that hearing, David Mottram testified:

“[E]ver since this night on April 18th when we saw this abuse, it has been nonstop harassment and very troubling for my wife and I who are trying to raise a daughter, and she’s pregnant as well. Every time we go outside, something happens. We tried to mitigate it as much as possible by making sure they’re not outside or what have you before we leave, but unfortunately, there’s all these things that have happened. It’s really shaken me; it’s really shaken my wife and my daughters. And unfortunately, that’s why we’re here today.”

Trial Court Decision

Sandoval ruled from the bench that there was “clear and convincing evidence of harassment.”

He said that David Mottram “makes the essential point which is that it’s the temporary restraining order that has caused things to calm down,” adding:

“And so without an order in place, things may heat up again. I think there’s a good chance of that, if not a high probability of it.

“So on balance, I feel compelled to issue an order; however, I am only going to make the duration of it 18 months because I’m hoping that it will serve as a cooling-off period and that after that, things will resolve themselves where at least the parties can remain neutral to each other.”

Quoted Profanity

In his opinion affirming the order, Sanchez chose to quote, at length, the profane language allegedly employed by Cox, and opted to conceal the identities of the parties by using only their initials, although they had litigated the case using their actual names.

Cox relied primarily on the July 22, 1991 Court of Appeal decision by this district’s Div. Five in Schild v. Rubin. There, then-Justice Roger Boren (later presiding justice of Div. Two, now retired) wrote:

“Section 527.6 does not define the phrase ‘substantial emotional distress.’ However, in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase ‘severe emotional distress’ means highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’…, which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it.’ ”

That standard was not met, he said, in the case before the court. Then-Los Angeles Superior Court Judge Marvin Rowen (now retired) had barred basketball-playing except during specified hours at the residence of one attorney in an action brought by his next-door neighbor, also an attorney, who claimed the noise was upsetting.

Fact Situation Differentiated

Sanchez wrote:

“We are not dealing here with the innocuous sounds of children playing a game. The trial court received substantial evidence of K.C.’s harassing behavior directed at respondent, his pregnant wife, and other family members over a period of ten months. K.C. repeatedly accosted D.M. and A.M. with obnoxious, expletive-laden insults, doing so even in front [of] D.M.’s infant daughter and K.C.’s own children. More alarming, K.C. went across the street and rang the doorbell screaming vulgarities at A.M. and stating that she knew A.M. was home alone. In the February 2020 incident, she entered the roadway and confronted D.M.’s family in their vehicle, swearing at them as another car was approaching. We decline to equate K.C.’s purposeful and socially unacceptable behavior with the conduct at issue in Schild.”

Cox contended that even if the Mottrams did incur emotional distress in reaction to her opprobrious remarks, no reasonable person would “suffer ‘substantial emotional distress’ as a result of a neighbor using cuss words occasionally.” Sanchez responded:

“K.C. understates the severity of her conduct. The totality of the evidence summarized above fully supports the trial court’s implied finding that K.C.’s course of conduct would cause a reasonable person to suffer substantial emotional distress, and that it did cause such distress to D.M. and A.M.”Sanchez explained his use of first and last initials of persons referred to in his opinion by saying, in a footnote:

“We refer to the parties and witnesses by their initials to protect their privacy. (California Rules of Court, rule 8.90(b)(5)).”

Rule 8.90 sets forth that it “provides guidance on the use of names in appellate court opinions” and says that “the reviewing court should consider” camouflaging identities in specified instances such as, under (b)(5), “[p]rotected persons in civil harassment proceedings under Code of Civil Procedure section 527.6.”

The guideline do not address to the prospect of according anonymity where the protected persons, such as the Mottrams, brought the action and litigated in their actual names and their identities are included in the court record, or whether, as, in other cases, the identities are widely known through press coverage.

The case is D.M. v. K.C., A161280.


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