Wallace v. Cass (2008)

Ref. via Google Scholar

JAMES WALLACE et al., Plaintiffs and Respondents,
CATHERINE CASS, Defendant and Appellant.


Court of Appeals of California, Fourth Appellate District, Division Three

March 10, 2008

Peter C. Holzer for Defendant and Appellant.

David B. Dimitruk for Plaintiffs and Respondents.



For over two decades, Catherine Cass has been engaged in a campaign of harassing and tormenting her neighbors on either side of her house—James and Rebecca Wallace, and Gloria Suess (sometimes collectively referred to as the Plaintiffs). Cass blares loud music directed at the Plaintiffs' houses and makes other loud noises throughout the night, and when they are using their backyards, to disrupt them. She has placed signs in her front yard, for neighbors and visitors to the Wallaces' or Suess's homes to see, accusing the Plaintiffs of intentionally poisoning her plants and trees, abusing elderly and disabled persons, being anti-Semitic, being terrorists, and comparing each of them to Slobodan Milosevic.

Fed up with Cass's antics, the Plaintiffs filed a complaint against her for nuisance and defamation seeking damages and injunctive relief. Following a court trial, judgment was entered in favor of the Plaintiffs on both causes of action and awarding them a combined total of $245,000 compensatory damages and $75,000 punitive damages. The court also permanently enjoined Cass from continuing most of her offensive conduct.

Cass appeals the judgment contending: (1) there were evidentiary errors; (2) the Plaintiffs failed to establish special damages due to defamation; (3) the injunction violates her First Amendment free speech rights; and (4) the nuisance damages should not have included diminution in value of the Plaintiffs' properties. We reject Cass's claims of evidentiary error and affirm the award of damages for defamation and diminution of property value. We agree, however, that portions of the injunction are overbroad as they prohibit Cass from engaging in otherwise protected speech. Accordingly, we modify the judgment to strike the unconstitutional provisions.



A. Pretrial Procedure and Discovery Orders

The Plaintiffs filed their complaint for nuisance and defamation in April 2004. Cass, at the time representing herself in propria persona, filed a cross-complaint against the Plaintiffs for "assault and battery amounting to torture."

The Plaintiffs propounded discovery requests including one set of requests for admissions, one set of form interrogatories, and one set of special interrogatories. They also served a notice of Cass's deposition and a request to produce certain documents. Cass steadfastly refused to respond to any of the discovery requests, attend her deposition, or produce the requested documents. The Plaintiffs' discovery motions were granted and Cass was sanctioned over $3,900. Despite court orders to comply with the Plaintiffs' discovery requests, Cass still failed to respond. Accordingly, she suffered additional evidentiary sanctions: the Plaintiffs' requests for admissions were deemed admitted, and, because she would not appear for her deposition, she was precluded from testifying at trial, or introducing at trial any of the documents the Plaintiffs requested her to produce.

B. Trial

1. Admissions

The court's order declaring the requests for admission deemed admitted was received into evidence, pursuant to which the following facts were admitted: The Plaintiffs had enjoyed good reputations in the neighborhood where they and Cass lived. Cass placed signs in her front yard "in such a manner as to be seen and read by all neighbors, pedestrians and persons driving vehicles in front of [Cass's] home." The signs accused each of the Plaintiffs of "poisoning and killing the trees, plants, flowers and other vegetation on [her] property[,]" but none of the Plaintiffs had ever committed any of those acts. The signs accused each of the Plaintiffs "of being sadistic and abusing elderly and disabled people[,]" and accused each of the Plaintiffs of "abusing [Cass] as an elderly and disabled woman[,]" but none of the Plaintiffs had ever done so. Cass had placed signs in her yard saying "`Milosevic lives next door[,]'" and likening each of the Plaintiffs to Slobodan Milosevic. Cass also placed signs in her yard accusing the Plaintiffs of discriminating against her because of her Jewish heritage, but they had never discriminated against her. Anyone reading the signs would have reasonably understood they referred to the Plaintiffs.[1]

Cass had an "unjustified angry and hostile hatred and contempt" for each of the Plaintiffs, and she deliberately placed the signs in her yard to cause injury and harm to each of the Plaintiffs' reputations, emotions, and property values. The signs "implicitly accus[ed] [each of the Plaintiffs] of criminal and civil trespass on [her] property[,]" although none of the Plaintiffs had ever done so. Neighbors living in the five houses to the left of Cass and the 10 houses across the street from Cass had seen and read the signs which Cass intended to refer to the Plaintiffs. The signs were defamatory to the Plaintiffs because they attributed to them the unlawful conduct described. Anyone reading the signs would have reasonably understood them to mean each of the Plaintiffs had been guilty of criminal and civil wrongs including trespass and destruction of property, held discriminatory and unlawful opinions against disabled persons, elderly persons, or "persons of Jewish decent[,]" and had "engaged in conduct to damage, harm and injure [Cass] and her property."

Cass admitted the Plaintiffs had in fact suffered as a result of the signs Cass placed in her front yard. Her conduct was oppressive, malicious, and done for the sole purpose of causing the Plaintiffs "ridicule, humiliation, shame, embarrassment, mortification and hurt feelings." The signs constituted a nuisance as well because they adversely affected all of Cass's neighbors, created a distraction to vehicles, and interfered with everyone's enjoyment of their properties. Cass admitted she would not stop putting defamatory signs on her property unless the court restrains her from doing so.

2. Trial Testimony

Suess testified she was a licensed realtor, but for the past 18 years has run a homeless shelter. Her property is separated from Cass's by a driveway. Every night Cass makes noises all night long that disrupt Suess. The noises include "screams and moans," turning the radio up very high, walking around with what sounds like a stick "pounding, pounding, pounding . . . all night long and all day long." Beginning late at night Cass would play "polka music" on her radio very loudly, while she also had the volume on her television set turned up. Cass has been doing this since 1989. Whenever Suess has company over in her backyard, Cass turns on her radio blaring loud music into the yard, making it impossible for Suess to enjoy her home. When Suess asked Cass to stop, Cass responded by spitting at the ground and walking away.

Suess explained Cass's property is surrounded by a chain link fence and over the years, Cass has owned "several dogs [that] appear to be quite vicious. And the latest [being a] German Shepherd [that] would run up against the fence." On several occasions when Suess's young grandchildren were visiting and would go out into her front yard to play, Cass would immediately let her dogs out to run against the fence, growling, snarling, and baring their teeth at the children and scaring them. Suess would see Cass watching the scene with "that look of smugness on her."

Suess denied doing any of the things Cass's signs accused her of doing. The signs were very hurtful and embarrassing to Suess. Suess believed Cass's conduct diminished the value of her home from between $50,000 and $100,000 because were she to try to sell her home, she would have to disclose Cass's conduct as a nuisance. She had wanted to put her house on the market, to move closer to her grandchildren, but did not do so because she believed she would take a loss as a result of Cass's conduct.

Rebecca Wallace was a licensed marriage and family therapist and worked for a nonprofit organization. She and her husband were very active in their church and frequently conducted church-based premarital counseling sessions in their home. She too testified to the constant noises made by Cass all night long disrupting their peace. When they lived at home, her children had to keep their windows closed at night to sleep. Rebecca Wallace knew Cass had wood floors in her house. The pounding noises Cass made sounded like someone pounding a heavy stick on the wood floors. She also testified Cass's antics and noises interfered with the Wallaces' use of their yard—whenever family or friends came over, Cass would start power tools and weed whackers, and send music blaring into the Wallaces' yard.

Cass's signs caused the Wallaces a great deal of embarrassment and humiliation. They interfered with conducting marriage counseling sessions at their home. Rebecca Wallace explained couples who had never met the Wallaces would show up at their home for sessions and the Wallaces would have to spend the first couple of sessions trying to negate what the signs said about them.

Rebecca Wallace also testified to other confrontations with Cass. Cass would routinely lead her dogs on to the Wallaces' front lawn to defecate and she would not clean up after them. When she tried to talk to Cass about the dogs or the signs, Cass would not speak to her and just spit at the ground and walk away. Cass's behavior made her very fearful about what else Cass might be capable of doing.

Jim Wallace testified he and his wife had wanted to sell their home, but were afraid of losing money because of Cass's conduct so they had not listed the house. Cass's constant noisemaking had prevented the Wallaces from enjoying their property. The signs Cass posted caused Jim Wallace humiliation and embarrassment, requiring him to constantly have to explain the situation to fellow church members who were frequently at his house for meetings. Over the years, he had several times tried to talk to Cass about the problems, but she would just spit at the ground and walk away. After he told Cass he would resort to the legal system if she did not stop, the signs came down for one day. The next day, a new sign appeared saying "the only reason my signs are gone is because my neighbor threatened me." The signs then started to be put out again. Just before the original trial date set in this case, the signs came down, but the incessant noises continued.

One longtime neighbor of the Wallaces testified she too was disturbed by the incessant noises from Cass's house that simply "never quit[.]" She was good friends with the Wallaces and they were highly respected in the neighborhood. Although she did not believe Cass's accusations, the signs did make her wonder "could that really have happened[,]" and whether the Wallaces had done "something to harm [Cass]." Another neighbor confirmed the constant noises coming from Cass's house and confirmed that both the Wallaces and Suess had very good reputations in the neighborhood. Although he did not personally believe Cass's accusations about the Plaintiffs to be true, he had been approached by many other neighbors who asked him whether the accusations were true suggesting, "there was a question in their mind[s] whether or not it was true."

The Plaintiffs presented expert testimony from a real estate broker that the Wallaces' house was worth between $1 million and $1.2 million, and Suess's house was worth between $600,000 and $700,000. If either residence were to be listed for sale, the seller would have to disclose Cass's conduct as a nuisance affecting the use and enjoyment of the property. Cass's conduct has a significant negative affect on the Plaintiffs' property value in the range of five percent on the low end to 20 percent on the high end.

The Plaintiffs introduced into evidence a grant deed recorded one month after they filed this action, by which Cass conveyed her house to her adult daughter without payment of any consideration reserving a life estate for herself. Additionally, shortly after this action was filed, Cass filed a bankruptcy proceeding, which had caused the original trial date to be continued. The bankruptcy court dismissed the bankruptcy petition finding it had been filed in bad faith.[2]

C. The Judgment

The trial court entered judgment in the Plaintiffs' favor on both causes of action. On the defamation cause of action, each plaintiff was awarded $30,000 in damages ($10,000 for emotional distress and $20,000 for loss of reputation). On the nuisance causes of action, the Wallaces were awarded $50,000 jointly for diminution in value of their residence and $25,000 each for annoyance and discomfort, and Suess was awarded $30,000 for diminution in value of her residence and $25,000 for annoyance and discomfort. Additionally, the court awarded each of the Plaintiffs an additional $25,000 in punitive damages based upon the clear and convincing evidence Cass had engaged in malicious and oppressive conduct, and Cass's act of conveying her property to her daughter without consideration in an attempt to avoid satisfaction of any possible judgment against her.

The court also granted the Plaintiffs' request for injunctive relief. Paragraph 4 of the judgment provides that Cass "(and all others aiding or abetting, acting as agents for, acting in concert and participation with, or acting under the direction control or influence of [Cass], and each of them) is and are hereby permanently enjoined and restrained from directly or indirectly doing or engaging in any of the following acts: [¶] a. "Placing, displaying or allowing any messages or signs on [Cass's] property . . . that are visible by any person either on the sidewalk in front of that residence or that are visible from any adjoining property with any kind of statement concerning any of the [P]laintiffs; and [¶] b. Placing, displaying or allowing any messages or signs on [Cass's] property . . . that are visible by any person either on the sidewalk in front of that residence or that are visible from any adjoining property with any kind of statement or information that sets forth her opinion that any of the [P]laintiffs have committed any kind of crime or civil wrong against her unless she has reasonable information to believe that it is true; and [¶] c. Placing, displaying or allowing any messages or signs on [Cass's] property . . . that are visible by any person either on the sidewalk in front of that residence or that are visible from any adjoining property with any kind of statement or information that either . . . Cass knows to be false or that a reasonable person would have no reasonable basis of believing to be true[;] and [¶] d. Causing, making, or permitting any kind of noise, including speaking [to] herself, which exceeds the volume of noise that would be permitted under the [city noise ordinance]. . . ."



A. Admission of Hearsay

Cass complains that the trial court improperly allowed hearsay evidence over her objections during the trial. She specifically cites the following three instances: (1) testimony elicited from a neighbor that the Wallaces were highly respected in the neighborhood and the neighbor's family members were disturbed by Cass's nighttime noisemaking; (2) testimony from another neighbor regarding the Wallaces' good reputation in the neighborhood and that other neighbors had made comments to him regarding the signs; and (3) testimony from the Plaintiffs' expert witness, a real estate broker, that his opinion regarding the effect of Cass's actions on the value of the Plaintiffs' homes was in part based on how "appraisers typically" appraise property.[3]

We need not belabor Cass's argument for the simple reason she has failed to suggest how she was in any way prejudiced by the court's evidentiary rulings (Evid. Code, §§ 353, 354), nor can we fathom that she was. Cass made extensive evidentiary admissions on most of the matters the complained of testimony concerned, including that the Plaintiffs had always enjoyed good reputations in the neighborhood, that the signs were seen by numerous neighbors, and the signs had caused harm to the Plaintiffs and to the Plaintiffs' properties' values. Furthermore, numerous witnesses testified they were disturbed by Cass's incessant noisemaking, and Cass has made no showing as to how she was harmed by the additional information that those witnesses' children were bothered as well.

B. Damages for Defamation

While not specifically disputing the libelous nature of her signs, Cass contends the Plaintiffs were entitled to nothing more than a "token or trifling sum" of damages because they failed to prove special damages. We disagree.

"Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ. Code, § 45.) It is the rule in this state that in the case of libel per se, i.e., "libel which is defamatory of the plaintiff without the necessity of explanatory matter" (Civ. Code, § 45a), a plaintiff need not plead or prove special damages.[4] (Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1135; see generally MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549; 5 Witkin, Summary of Cal. Law (10th Ed. 2005) Torts, § 541, pp. 794-795.)

It goes without saying Cass's signs constituted libel per se; she does not seriously contend otherwise. She admitted the signs were intended to refer to the Plaintiffs and anyone reading the signs would have readily known they referred to the Plaintiffs. She admitted the signs falsely accused the Plaintiffs of criminal conduct (e.g., trespass, destruction of property, elder abuse). (See 5 Witkin, supra, § 542, p. 795 ["[t]he charge of commission of some kind of crime is obviously libel per se"].) She admitted the signs falsely accused the Plaintiffs of discriminating against her because of her ethnic and religious background. (See 5 Witkin, supra, § 543, p. 796 [charges of religious and racial prejudice or objectionable political or social beliefs or principles constitute libel per se].)

Because the signs constituted libel per se, general damages are presumed. (Contento v. Mitchell (1972) 28 Cal.App.3d 356, 358.) General damages included "damages for loss of reputation, shame, mortification and hurt feelings[.]" (Civ. Code, § 48a, subd. (4)(a).) There is nothing in the record that suggests the amount of general damages awarded, $30,000 to each Plaintiff, was excessive.

C. The Injunction

Cass contends the permanent injunction prohibiting her from placing signs on her property containing statements about the Plaintiffs and others constitutes an unlawful prior restraint on her free speech rights.[5] In Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156 (Lemen), our Supreme Court held "following a trial at which it is determined that the defendant defamed the plaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory. [Citation.]"[6] Thus, the trial court could properly enjoin Cass from placing signs on her property containing the kinds of statements about the Plaintiffs that have been adjudicated as being defamatory. However, the injunction provisions in the judgment go too far, prohibiting her from posting any statements about the Plaintiffs and precludes her from posting signs containing any false information or statements. To that extent, the injunction sweeps too broadly. Accordingly, we must modify the judgment to delete the constitutionally impermissible restrictions.

We begin where all prior restraint cases must: "Congress shall make no law . . . abridging the freedom of speech." (U.S. Const., 1st Amend.) "[T]he government may not regulate speech based on its substantive content or the message[.]" (Rosenberger v. Rector & Visitors of the Univ. of Va. (1995) 515 U.S. 819, 828.)

A prior restraint is an administrative or judicial order that forbids certain speech in advance of it being made. (Alexander v. United States (1993) 509 U.S. 544, 550.) "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." (Ibid.)

A prior restraint is not unconstitutional per se, but there is "`a heavy presumption against its constitutional validity.'" (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558.) "[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable." (Id. at pp. 558-559.)

We are particularly mindful here that the speech the permanent injunction prohibits is speech from Cass's own home. The Supreme Court has long acknowledged that "[a] special respect for individual liberty in the home has long been part of our culture and our law, [citations]; that principle has special resonance when the government seeks to constrain a person's ability to speak there. [Citation.]" (City of Ladue v. Gilleo (1994) 512 U.S. 43, 58.) And the Supreme Court has been particularly sensitive to guarding First Amendment protection for communicative signs placed in the yard of a person's own property, concluding such lawn signs are an important medium of expression; "[d]isplaying a sign from one's own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the `speaker.' As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade." (Id. at p. 56, fn. omitted.)

But despite the First Amendment's reverence for speech from one's own home, there are limits. Although a prior restraint is reviled because "communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment[,]" an order based on a continuing course of repetitive conduct, following a final judicial determination the enjoined speech is unprotected by the First Amendment, has been held to not be a prior restraint if it "is clear and sweeps no more broadly than necessary." (Pittsburgh Press Co. v. Pittsburgh Com'n on Human Rel. (1973) 413 U.S. 376, 390.)

Lemen, supra, 40 Cal.4th 1141, is instructive. In Lemen, defendant engaged in a campaign against a restaurant and bar located across the alley from her home. She videotaped customers entering and leaving the establishment, photographed customers through the windows, called the customers names, made repeated disparaging remarks about the establishment, told employees the establishment employed undocumented workers, circulated a petition in the community telling residents criminal activity was talking place at the establishment and it was connected to the Mafia. The establishment sued defendant for nuisance, defamation, and intentional interference with business relations seeking injunctive relief. (Id. at pp. 1145-1146.)

The trial court issued a permanent injunction against Lemen and "`her agents, all persons acting on her behalf or purporting to act on her behalf and all other persons in active concert and participation with her,'" prohibiting her from: (1) initiating contact with plaintiff's employees; (2) making specific defamatory statements about the restaurant to third persons (including that plaintiff sells alcohol to minors, stays open until 6:00 a.m., makes sex videos, is involved in child pornography, distributes illegal drugs, has Mafia connections, encourages lesbian activities, "participates in prostitution and acts as a whorehouse," serves tainted food); and (3) filming within 25 feet of the premises unless the filming was done from her own property or she was documenting an immediate disturbance. A different panel of this court upheld the filming aspect of the injunction, but concluded the remaining provisions enjoining future defamatory speech constituted an unconstitutional prior restraint. (Lemen, supra, 40 Cal.4th at p. 1146.)

The Supreme Court affirmed the court of appeal's reversal, but concluded future defamatory speech could be enjoined under a more narrowly drawn injunction. "[A]n injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment." (Lemen, supra, 40 Cal.4th at p. 1148.) After analyzing the origins of the prohibition on prior restraints (as arising from the former English government's practice of requiring the government's permission before publication of written material), the Lemen court explained "[p]rohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful." (Id. at pp. 1149-1150.) The court rejected defendant's assertion an award of damages was the only appropriate remedy for defamation. Were that the case, the court reasoned, "a defendant harmed by a continuing pattern of defamation would be required to bring a succession of lawsuits if an award of damages was insufficient to deter the defendant from continuing the tortuous behavior. This could occur if the defendant either was so impecunious as to be `judgment proof,' or so wealthy as to be willing to pay any resulting judgments. Thus, a judgment for money damages will not always give the plaintiff effective relief from a continuing pattern of defamation." (Id. at p. 1158.)

Nonetheless, even though the Lemen court approved injunctive relief as a remedy against defamatory speech, it cautioned any such relief must be narrowly drawn, i.e., "`tailored as precisely as possible to the exact needs of the case.' [Citations.]" (Lemen, supra, 40 Cal.4th at p. 1159.) The court found the injunction at issue was "broader than necessary to provide relief to plaintiff while minimizing the restriction of expression. [Citation.]" (Id. at p. 1160.) The injunction improperly applied not simply to defendant personally but to her agents or persons acting on her behalf, even though there was no evidence anyone other than defendant had defamed plaintiff. The injunction's prohibition against making defamatory statements to third persons improperly precluded defendant from "presenting her grievances to government officials." (Ibid.) And the proscription against contacting plaintiff's employees "`sweeps more broadly than necessary' because it `includes no time, place, and manner restrictions but prohibits Lemen from initiating any type of contact with a known . . . employee anywhere, at any time, regarding any subject.'" (Id. at p. 1161, fn. omitted.) Finally, with regard to defendant's protest that a change of circumstances could make a currently defamatory statement permissible, the court observed if that was the case, defendant could seek to modify the injunction. (Ibid.) Accordingly, the Supreme Court reversed the injunction, but remanded to the trial court to fashion a "properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory . . . ." (Id. at p. 1162.)

Applying the principles set forth in Lemen, we turn to the specific injunction at issue here. That some form of injunctive relief is appropriate is apparent. Cass has waged an inexplicable campaign against the Plaintiffs, placing signs in her yard accusing them of all sorts of heinous acts. She has engaged in other acts deliberately designed to interfere with their enjoyment of their homes—blaring music or power equipment into their yards when guests are present and making disturbing noises at night. Cass admitted she will not stop putting defamatory signs about the Plaintiffs on her property unless the court restrains her from doing so. She does not challenge the injunction's requirement that she comply with the City of Santa Ana's noise ordinance.

Although Cass's original opening brief was aimed at the constitutionality of an injunction prohibiting any kind of future speech, in view of Lemen, she implicitly concedes the trial court may enjoin future defamatory speech under defined circumstances. In her supplemental briefing, Cass argues the injunction is overbroad because it encompasses more than just the kinds of statements previously adjudicated as defamatory, but prohibits future speech that has not been adjudicated defamatory as well. She specifically challenges two aspects of the court's injunctive order: (1) the prohibition against posting signs containing "any kind of statement concerning any of the [P]laintiffs" (i.e., paragraph 4(a), italics added); and (2) the prohibition against placing signs on her property "with any kind of statement or information" that Cass either "knows to be false or that a reasonable person would have no reasonable basis of believing to be true" (i.e., paragraph (4)(c)).

We agree with Cass that both of those proscriptions are far too broad to pass constitutional muster. As Cass now implicitly concedes, she may be enjoined from posting signs repeating the kinds of statements about the Plaintiffs that have already been adjudicated as defamatory, but paragraph 4(a) sweeps up any nondefamatory statements she makes about them as well and is too broad. As to paragraph 4(c), there is no evidence Cass has ever posted signs with statements concerning anyone other than the Plaintiffs. And the blanket prohibition against posting any signs on her property including "any kind of statement or information" that Cass knows to be false, or a reasonable person would not reasonably believe to be true, would encompass all sorts of otherwise constitutionally protected speech. Such a blanket prohibition is overbroad, particularly since the injunctive relief could have been more narrowly tailored, and is an invalid prior restraint.

We additionally note the injunction's extension of its prohibitions to not just Cass, but "all others aiding or abetting, acting as agents for, acting in concert and participation with, or acting under the direction control or influence of [Cass]" is also too broad. There is no evidence anyone but Cass has put up the defamatory signs, and "the injunction, to be valid, must be limited to prohibiting [Cass] personally from repeating her defamatory statements." (Lemen, supra, 40 Cal.4th at p. 1160, fn. omitted.)

Cass does not specifically challenge paragraph 4(b), which prohibits her from placing signs containing "any kind of statement or information that sets forth her opinion that any of the [P]laintiffs have committed any kind of crime or civil wrong against her unless she has reasonable information to believe that it is true[.]" This paragraph is in the nature of what Lemen allows—a narrowly worded injunction that proscribes the kinds of statements already adjudicated as defamatory. It has already been adjudicated that Cass has falsely accused the Plaintiffs of a variety of criminal and civil wrongs against her including accusing them of damaging her property and vegetation on her property, and committing acts of elder abuse and discrimination.

The Plaintiffs implore us to affirm the injunction in its entirety, asserting all its prohibitions against Cass's sign-placing antics are appropriate to preserve the Plaintiffs' rights to peacefully enjoy their homes. The Plaintiffs rely on Frisby v. Schultz (1988) 487 U.S. 474 (Frisby). In that case, anti-abortion protesters had taken to picketing in front of the home of a physician who provided abortion services. The town adopted an "ordinance prohibiting picketing before or about a residence[.]" The protesters brought a facial challenge to the ordinance contending it violated their First Amendment right to engage in protected speech in a public forum (i.e., from public streets and sidewalks in front of the physician's home). In rejecting the facial challenge, the Supreme Court observed the ordinance was narrowly drawn and preserved ample means for the protesters to otherwise communicate their ideas when balanced against the governmental interest at issue—"the protection of residential privacy. [Citation.]" (Frisby, supra, 487 U.S. at p. 484.)

In Frisby, supra, 487 U.S. at pages 484-485, the Supreme Court had this to say about the interest in preserving residential privacy: "`The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.' [Citation.] Our prior decisions have often remarked on the unique nature of the home, `the last citadel of the tired, the weary, and the sick,' [citation], and have recognized that `[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.' [Citation.] [¶] One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear [citations], the home is different. `That we are often "captives" outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere.' [Citation.] Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. [Citations.] [¶] . . . There simply is no right to force speech into the home of an unwilling listener."

Latching onto these observations in Frisby, the Plaintiffs suggest the proper balance between their rights to privacy and enjoyment of their homes and Cass's First Amendment rights is struck by the injunction as worded. We disagree. Frisby had nothing to do with limiting a specific person's right to engage in constitutionally protected speech on his or her own property, it involved an ordinance imposing content neutral time, place, and manner restrictions on speech from public property adjoining private residence. We believe the proper balance between the Plaintiffs' rights to peacefully enjoy their homes and Cass's First Amendment rights is struck by an injunction akin to that approved by Lemen, i.e., one narrowly drafted to prohibit her from placing signs containing the kinds of statements already adjudicated defamatory—those statements are not entitled to constitutional protections. But an injunction that prohibits her from engaging in otherwise protected nondefamatory speech on her own property is too broad.

D. Nuisance Damages for Diminution in Property Value

Cass contends the award of damages for nuisance attributable to the diminution in value of the Plaintiffs' residences must be reversed.[7] We disagree.

"Damages recoverable in a successful nuisance action for injuries to real property include not only diminution in market value but also damages for annoyance, inconvenience, and discomfort [citation]; actual injuries to the land [citation]; and costs of minimizing future damages. [Citation.]" (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464; Lew v. Superior Court (1993) 20 Cal.App.4th 866, 874.) The Plaintiffs were awarded damages for both the diminution in fair market value of their property and for the annoyance and discomfort they suffered.

Cass contends the award of damages for diminution of value of the property is too speculative because the Plaintiffs never listed their homes for sale. She cites no case suggesting selling the property is a requisite for establishing the diminution in property value as the result of a nuisance. Cass admitted her conduct was intended to cause harm to the value of the Plaintiffs' properties and had in fact decreased their value. The Plaintiffs presented expert testimony from an appraiser as to the value of their properties at the time of trial—the Wallaces' was worth between $1 million and $1.2 million; Suess's was worth between $600,000 and $700,000. The expert testified Cass's conduct constituted a disclosable nuisance that decreased the property value in a range of five to 20 percent. The court's award ($50,000 to the Wallaces; $30,000 to Suess) was for approximately five percent of the value of the property.

Cass does not dispute that her antics, i.e., her incessant and unabashed harassment of her neighbors, would require disclosure to a prospective buyer. Nor does she provide any authority disputing the notion that such a disclosure would negatively affect the market value of residential property. As noted in Alexander, supra, 7 Cal.App.4th at page 978, "It is reasonable to assume that a prospective buyer would not be anxious to become involved in a neighborhood dispute, and that all things being equal, would prefer to live in a more collegial and hospitable neighborhood. In economic terms this reluctance would be reflected in a reduced purchase price. The buyer willing to assume headaches and other emotional discomfort in purchasing a residence will undoubtedly expect a discount for doing so."

Our conclusion that the Plaintiffs were properly awarded damages for the diminution in property value of their residences does not run afoul of the rule that prospective or future damages are unavailable for a "continuing nuisance," which can be discontinued or abated. (See Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1485.) The damages were awarded for the losses the Plaintiffs have already suffered—the reduced value of their properties at the time of trial. The Plaintiffs indicated they had wanted to list their homes for sale, but did not dare to as they knew they would have to disclose Cass's past harassing activities and doing so would make their homes unsellable at fair market value.

Alexander, supra, 7 Cal.App.4th 973, does not compel a different result. In that case, the appellate court affirmed an injunction granted to plaintiffs against their neighbors ordering them to cease their nuisance-related activities. While agreeing the neighborhood strife would require disclosure to prospective purchasers, the court reversed the award of damages for diminution in property value such a disclosure would cause. (Id. at p. 976.) The court concluded that because the trial court had ordered defendants to abate the nuisance, and there is a presumption of compliance with valid court orders, the injury to the value of plaintiffs' property had been remedied through the granting of equitable relief. (Id. at pp. 978-979.)

But, here, we cannot say the injunction issued by the trial court obviates the harm Cass has inflicted on the Plaintiffs' property values. Unlike Alexander, where there was no reason to believe defendants would fail to comply with the court's orders, the exact opposite is true here. The record in this case is quite clear that Cass is not entitled to any presumption that she will comply with the court's orders. The trial court noted as much when it fashioned its award. The trial court specifically questioned whether the injunction cured the harm to the Plaintiffs' property values, making damages for diminution in the property value unnecessary, only to conclude it would not because Cass's conduct during trial showed "she's not going to exercise reasonable judgment" and follow the court's orders. The record supports the trial court's observation. Cass steadfastly has refused to comply with the trial court's discovery orders below, resulting in most of the facts supporting this judgment being admitted. She concedes that during trial she continued to put up her offensive signs. Cass filed bankruptcy proceedings in bad faith and tried to convey her property to her daughter without consideration to avoid the Plaintiffs' judgment.

Cass counters that she specifically agreed to the part of the injunction ordering her to cease her noisemaking activities—demonstrating her willingness to comply with the judgment and the law. But the paragraph to which Cass agreed simply directed her to comply with the City of Santa Ana's noise ordinance—violation of which is punishable as a misdemeanor. (Santa Ana Mun. Code § 18-321.) Furthermore, given that we have concluded above that portions of the injunction as it pertains to Cass's placing signs on her property must be stricken, it simply cannot be said the injunction has remedied the harm to the Plaintiffs' property values. "If it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]" (Spaulding v. Cameron (1952) 38 Cal.2d 265, 268-269.) Under the circumstances of this case, it was appropriate for the trial court to essentially treat Cass's activities as having the aspects of a permanent nuisance and resolve all of the Plaintiffs' damages in one suit.



The judgment is modified as follows: The first sentence of paragraph 4 is modified to delete the language "(and all others aiding or abetting, acting as agents for, acting in concert and participation with, or acting under the direction control or influence of [Cass], and each of them)"; paragraph 4(a) and paragraph 4(c) are stricken from the judgment in their entirety. As modified the judgment is affirmed. The parties shall bear their own costs on appeal.

We Concur:



[1] Cass admitted she had placed signs on her property, each of which she intended to refer to the Plaintiffs with the following statements on them: "`Stop poison-spraying our plants puff head'"; "`stop poison-spraying out plants'"; "`You sicko! If you get your jollies from killing our plants, kill your own! Hands off ours, and stay out'"; "`They continue to kill our plants'"; "`Our two neighbors are killing our plants. Please help us by killing theirs'"; "`Two magnificent camellia bushes poisoned by our neighbors'"; "`More plants killed by our 2 sadistic neighbors'"; "`Why did you poison-spray our baby peach tree! Plant killer! Sadist!'"; "`These are just a few of the many plants killed by our neighbors during the years they have lived here!'"; "`We protest the 24-year poisoning of our plants & trees which continues still'"; "`Stop gougin[g] our driveway!'"; "`Stop your elder abuse'"; "`We charge them with abuse against the elderly and against the disabled'"; "`We charge our two neighbors with discrimination because of our ethnic background'"; "`We charge our two neighbors with discrimination because of our ethnic background. We charge them with abuse against the elderly and against the disabled. They continue to kill our plants, to toxic-spray our newly planted fruit trees, to gouge our driveway, and other abuse. If we were WASP, none of the above would be occurring.'"

[2] A second bankruptcy proceeding was filed sometime after the judgment was entered in this action. The bankruptcy court ordered the automatic stay lifted so this appeal could proceed.

[3] The Plaintiffs assert Cass has waived all "evidentiary" objections because she provided only a partial reporter's transcript of the trial that included all testimony and oral proceedings from the first two days of trial, but omitted the last day of trial. Although it is true that when there is no reporter's transcript it must be presumed the absence of error would be demonstrated by the unreported oral proceedings (Estate of Fain (1999) 75 Cal.App.4th 973, 992), that is not the case when a party proceeds via a partial reporter's transcript. We must "presume that the record in an appeal includes all matters material to deciding the issues raised." (Cal. Rules of Court, rule 8.163; Estate of Pierce (1948) 32 Cal.2d 265, 274; see Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 4:51, pp. 4-12 to 4-13 ["[Cal. Rules of Court, rule 8.163] makes it possible to take an appeal on a partial record without risking defeat by a presumption that omitted proceedings would have shown the absence of error"].)

On October 26, 2006, Cass filed a motion to augment the record on appeal with the reporter's transcript of the September 15, 2005, trial proceedings. The Plaintiffs opposed that motion and we ordered it would be considered in conjunction with a decision on the merits. We grant the motion to augment.

On July 16, 2007, the court received a 28-page handwritten document submitted by Cass in propria persona, and not through her attorney of record, titled "Salient Points Either Missing from, or Falsely Stated in the Record on Appeal." That document is not a proper filing and has not been considered by the court in preparing this opinion.

[4] "`Special damages'" required in the case of a statement that is not defamatory on its face is defined as "all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other[.]" (Civ. Code, §§ 45a, 48a, subd. (4)(b).)

[5] Cass does not challenge paragraph 4(d) of the judgment permanently enjoining her from making noise on her property exceeding that allowed by the municipal code.

[6] The parties have submitted supplemental briefs addressing the issues in view of Lemen.

[7] Cass did not raise any arguments in her opening brief concerning the award of $25,000 to each of the Plaintiffs as nuisance damages for their annoyance and discomfort, or the award of $25,000 in punitive damages to each of the Plaintiffs. Following oral argument, we invited supplemental briefing from the parties to address the holding in Alexander v. McKnight (1992) 7 Cal.App.4th 973, 978-979 (Alexander), a case the parties had not briefed that concerns the availability of damages for diminution in property value in a nuisance case. In that supplemental briefing, Cass for the first time makes the assertion there is insufficient evidence to support the emotional distress or punitive damages. Because the arguments were not raised in a timely fashion, we decline to consider them. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226.)