California Court of Appeal Nov 5, 2015 No. D067317Unpublished
Filed 11/5/15 Arnold v. Toole CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GAIL ARNOLD, D067317
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00035681- CU-HR-CTL) TIMOTHY TOOLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Frederick A.
Mandabach, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Erik A. Friss for Defendant and Appellant.
Gail Arnold, in pro. per., for Plaintiff and Respondent.
The trial court granted Gail Arnold's request for a civil harassment restraining
order against Timothy Toole under Code of Civil Procedure section 527.6.1 On appeal,
1 All further statutory references are to the Code of Civil Procedure.
Toole contends his due process rights were violated because Arnold did not personally
serve him with the declaration supporting her restraining order petition. Toole also
claims the restraining order unconstitutionally hinders his free speech rights. We reject
We summarize the facts in the light most favorable to the court's findings.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)
Arnold and Toole are neighbors who live in two duplexes separated by about six
feet of space. For unknown reasons, Toole would periodically yell obscene and
threatening words at Arnold. On several occasions, Toole yelled at Arnold, "you're a
fucking whore"; "suck my dick"; "asshole, asshole, asshole, asshole"; and "bitch." In one
instance, Toole yelled at a neighbor that he had a gun. Another time, while Toole was
watering his front yard with a hose, he screamed at Arnold: "I'm standing here with a
hose in my hand and you're only [10] feet from me--you know, I could kill you right
now." Toole would sometimes follow and confront Arnold and other neighbors with a
video camera, trying to provoke them into saying something. He also posted flyers on
cars in the neighborhood, which depicted him confronting angry neighbors.
2
In response to this conduct, Arnold moved for a temporary restraining order
(TRO) under section 527.6. After the court granted the motion, Arnold served Toole
with the TRO and notice of the court hearing date for a permanent restraining order.2
Both Arnold and Toole appeared at the permanent restraining order hearing. At
the outset of the hearing, the court noted that Arnold's proof of service showed Toole was
personally served with the TRO and the notice of the hearing, but did not show the
petition was personally served on Toole. The court advised Toole he was entitled to
notice of the allegations and an opportunity to be heard, and the matter could be
continued if he desired. The court also directed the parties to exchange any documents or
evidence upon which they intended to rely. In response, Arnold gave Toole a copy of her
declaration that had accompanied her petition. Toole then indicated he was ready to
proceed and raised no objection to notice or the service, and did not ask for a
continuance.
During the hearing, Toole fully presented his version of the facts at length. Toole
claimed that during the relevant time he was performing construction work in the front of
his duplex. He said that while he worked, he liked to listen to music on his headphones
and loudly sing along. Any words he shouted were merely the lyrics of songs, and were
not directed at Arnold. Toole denied that he had ever claimed to have a gun or ever
threatened to kill Arnold.
2 We deny Arnold's motion to augment the record with additional service documents. The motion is untimely and the proposed augmented documents were not before the trial court in this matter. 3
After hearing the evidence, the court found that Arnold had proven her case by
clear and convincing evidence and granted her motion for a three-year restraining order.
The order prohibited Toole from engaging in the following activities: "Harass,
intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit abuse,
destroy personal property of , or disturb the peace of the person. . . ." The order also
prevented Toole from contacting Arnold in person, by telephone, or in writing. The order
required Toole to stay at least five feet away from Arnold while she was at her residence,
and 100 yards from Arnold when she was away from her residence.
DISCUSSION
I. Due Process
Toole contends that his due process right to notice was prejudicially violated
because he was not served with Arnold's declaration in advance of the hearing.
Due process requires that all parties receive notice "reasonably calculated, under
all circumstances, to apprise interested parties of the pendency of the action."
(Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)
Section 527.6 requires that respondents in permanent restraining order cases be served
with a copy of the petition for the restraining order, the temporary restraining order, and
the notice of hearing of the petition. (§ 527.6, subd. (m).)
Toole contends Arnold violated this statute and his due process rights because he
was not served with Arnold's declaration. However, Toole received a copy of the
declaration at the outset of the hearing. The court specifically informed Toole of his right
to notice and that the court would grant a continuance if requested. Nevertheless, Toole
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stated he was ready to proceed. By failing to object to the claimed defect in service and
by failing to request a continuance, Toole waived his right to raise the issue on appeal.3
A party who claims inadequate notice, but appears at the hearing on the motion
and contests it on the merits is deemed to have waived the issue unless he or she raises a
specific objection and establishes prejudice. (Arambula v. Union Carbide Corp. (2005)
(Carlton); Farrar v. McCormick (1972) 25 Cal.App.3d 701, 705.) "The principal
purpose of the requirement to file and serve a notice of motion . . . is to provide the
opposing party adequate time to prepare an opposition." (Arambula, at p. 343.) "Courts
applying the waiver rule generally have concluded that the party's appearance at the
hearing and opposition on the merits showed that the notice 'served its purpose,' despite
any defect [citations], and that any defect in the notice did not prejudice the party's
preparation for the hearing and opportunity to be heard. [Citations.]" (Ibid.)
Toole recognizes these rules, but now argues his failure to object to the notice
should be excused because he was not represented by counsel at the hearing. The
argument is without merit. Toole's pro per status at the proceeding does not shield him
from the waiver doctrine. (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009 ["A lay
3 In civil cases, the waiver rule applies equally to constitutional and nonconstitutional rights. (Fleming v. Safeco Ins. Co. (1984) 160 Cal.App.3d 31, 43 ["The general rule applicable in civil cases is that a constitutional question must be raised at the trial level to preserve the issue on appeal."].) In particular, courts have frequently enforced waivers of the due process right to notice. (See, e.g., D.H. Overmyer Co. Inc., of Ohio v. Frick Co. (1972) 405 U.S. 174, 187; National Equipment Rental, Limited v. Szukhent (1964) 375 U.S. 311, 316; Doty v. Love (1935) 295 U.S. 64, 74.) 5
person . . . who exercises the privilege of trying his own case must expect and receive the
same treatment as if represented by an attorney -- no different, no better, no worse."].)
Further, even if Toole had not waived his due process notice right, he was not
prejudiced by the claimed inadequate service. The record shows Toole had sufficient
notice before the hearing to prepare his case. During the proceeding, he presented a
coherent story contravening Arnold's version of the facts. After considering Toole's
complete presentation, the court found Arnold's version of the facts to be more credible
under the rigorous clear and convincing evidence standard. On this record, there is no
reasonable basis to conclude that Toole's defense would have been different if he had
received a copy of the declaration in advance of the hearing.
In sum, Toole "never claimed he did not have adequate time to prepare a response,
appeared at the hearing, argued the merits, never requested a continuance, and never
claimed he was prejudiced by the defective service or inadequate notice of the hearing."
(Carlton, supra, 77 Cal.App.4th 698.) Under these circumstances, Toole waived the
claimed defective service and did not suffer prejudice.
II. Free Speech
Toole contends the restraining order is a prior restraint on speech, and prior
restraints bear a heavy presumption against constitutional validity. He asserts that, unless
his speech falls under the "fighting words" or obscenity exceptions to free speech, the
restrictions are unconstitutional. He contends that his speech does not fall under either
exception.
6
Toole misstates the free speech standard for restraining order cases. To determine
whether a content neutral restriction on speech violates the First Amendment of the
United States Constitution, courts consider whether the restriction burdens any more
speech than necessary to serve a significant government interest. (Madsen v. Women's
Health Center, Inc. (1994) 512 U.S. 753, 765.) Speech on matters of purely private
concern receives less stringent protection than speech concerning public issues. (Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc (1985) 472 U.S. 749, 758-759.)
"In California, speech that constitutes 'harassment' within the meaning of
section 527.6 is not constitutionally protected, and the victim of the harassment may
obtain injunctive relief." (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250 (Huntingdon).) Section 527.6
"[h]arassment" encompasses, as was found here, "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." (§ 527.6, subd. (b)(3).)
The restraining order in the present case restricts Toole's conduct without
reference to the content of his speech. It contains only the standard provisions barring
Toole from harassing, attacking, striking, stalking, or threatening Arnold. Thus, the order
is content neutral.
The order also serves a significant government interest. Section 527.6 is intended
" ' "to protect the individual's right to pursue safety, happiness and privacy as guaranteed
by the California Constitution." ' " (Huntingdon, supra, 129 Cal.App.4th at p. 1250,
quoting Russell v. Douvan (2003) 112 Cal.App.4th 339, 403.) The prevention of
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harassment is an especially important government objective when it involves activities
surrounding a residence. (Carey v. Brown (1980) 447 U.S. 455, 471.)
The injunction did not burden speech any more than necessary to serve this
significant governmental interest. Instead, it merely bars Toole from engaging in a type
of conduct that is illegitimate under California law. (Brekke v. Wills (2005)
125 Cal.App.4th 1400, 1410 [Holding that song lyrics, if used to harass and ridicule, are
not protected speech.]; Huntingdon, supra, 129 Cal.App.4th at p. 1250.) Because the
content neutral restraining order is no broader than necessary to serve a significant
government interest, it does not violate Toole's First Amendment rights.
DISPOSITION
The order is affirmed. Appellant to bear respondent's costs on appeal.
PRAGER, J.*
WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8
AI Brief
AI-generated · verify before citing
Holding. The court affirmed a civil harassment restraining order, holding that the appellant waived his due process claim regarding service of process by failing to object or request a continuance at the hearing, and that the order did not violate his free speech rights.
Issues
Whether the appellant's due process rights were violated by a failure to serve the declaration supporting the restraining order petition.
Whether the civil harassment restraining order constitutes an unconstitutional prior restraint on free speech.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“By failing to object to the claimed defect in service and by failing to request a continuance, Toole waived his right to raise the issue on appeal.”
“In California, speech that constitutes 'harassment' within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.”
“Because the content neutral restraining order is no broader than necessary to serve a significant government interest, it does not violate Toole's First Amendment rights.”