Balboa Island Village Inn, Inc. v. Lemen

• Court: California Court of Appeals
• Writing for the Court: Fybel
• Citation: Balboa Island Village Inn, Inc. v. Lemen, 17 Cal.Rptr.3d 352, 121 Cal.App.4th 583 (Cal. App. 2004)
• Decision Date: 11 August 2004
• Docket Number: No. G031636.,G031636.
• Parties: BALBOA ISLAND VILLAGE INN, INC., Plaintiff and Respondent, v. Anne LEMEN, Defendant and Appellant.

17 Cal.Rptr.3d 352

121 Cal.App.4th 583

BALBOA ISLAND VILLAGE INN, INC., Plaintiff and Respondent, v. Anne LEMEN, Defendant and Appellant.

No. G031636.

Court of Appeal, Fourth District, Division Three.

August 11, 2004.

Review Granted December 15, 2004.

D. Michael Bush, for Defendant and Appellant.

Dubia, Erickson, Tenerelli & Russo and J. Scott Russo, Irvine, for Plaintiff and Respondent.

OPINION

FYBEL, J.

INTRODUCTION

We hold an injunction absolutely enjoining defendant Anne Lemen from making certain statements adjudicated to be defamatory under common law causes of action for libel and slander constitutes a content-based prior restraint on speech in violation of the First Amendment to the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. A content-based injunction restraining speech is constitutionally permissible if the speech has been adjudicated to violate a specific statutory scheme expressing a compelling state interest justifying a prior restraint on speech, or is necessary to protect a right equal in stature to the constitutional right of free speech, and is no broader than necessary. Two of the three parts of the injunction issued in this case do not meet these criteria.

Lemen lives on Balboa Island, across an alley from the Village Inn, a restaurant and bar owned and operated by plaintiff Balboa Island Village Inn, Inc. (BIVI). For many years, Lemen has been at odds with the owners of the Village Inn over allegations of noise and public disturbances. Lemen made disparaging statements about the Village Inn to Balboa Island residents, sometimes while circulating a petition regarding the Village Inn. She videotaped patrons and employees entering and leaving the Village Inn, sometimes following them, video camera in her hand, to their cars. Lemen took flash photographs of customers through the windows and doors of the Village Inn every Thursday and Saturday night for a year, and, on three occasions, photographed an employee changing his clothes. Lemen confronted customers and employees entering or leaving the Village Inn and called them off-color names.

Lemen's actions were turning away customers from the Village Inn. BIVI sued Lemen for nuisance, defamation, and interference with business, seeking only injunctive relief. After a bench trial, the trial court found in BIVI's favor on all three causes of action and issued a permanent injunction prohibiting Lemen from (1) initiating contact with persons known by Lemen to be BIVI employees, (2) making certain identified defamatory statements about BIVI to third persons, and (3) filming (whether by video camera or still photography) within 25 feet of the Village Inn premises, unless on her own property, and except to document an immediate disturbance or damage to her property.

Lemen challenges the injunction primarily on the ground it is an unconstitutional prior restraint on speech. We conclude the portions of the injunction prohibiting Lemen from making the identified defamatory statements and from initiating contact with Village Inn employees constitute impermissible prior restraints on speech and are overly broad. We uphold the portion of the injunction prohibiting Lemen from filming within 25 feet of the Village Inn premises. Finally, we deny Lemen's request for attorney fees under Code of Civil Procedure section 1021.5.

FACTS

Since 1989, Lemen has owned property on Park Avenue on Balboa Island (the Lemen property). Lemen resides much of the year at this property and also operates it as a vacation rental.

The Lemen property is located across the alley from the back of the Village Inn, a restaurant and bar that opened in the 1930's. The Village Inn stays open until 2:00 a.m. on weekends and live music is performed in the bar area on most evenings. Departing patrons often are inebriated and boisterous. Noise, disturbances, and public urination are not uncommon.

Lemen purchased the Lemen property from the Packards. When Lemen purchased the property, the Packards were involved in a dispute with the Village Inn over noise issues. The noise issues were disclosed in a real estate disclosure statement given to Lemen before she purchased the Lemen property.

BIVI, owned by the Toll family, purchased the Village Inn from Lance Wagner in November 2000. Partly in response to Lemen's complaints about noise, Wagner reconfigured the interior of the Village Inn to place the bar and entertainment to the areas farthest from the Lemen property, had the walls insulated, and installed soundproof windows.

Lemen remained dissatisfied with conditions at the Village Inn. She became so exasperated that she tried to sell her property. She filed several complaints against Village Inn and BIVI with law enforcement and regulatory agencies and "attempted to spread her message as a harbinger for change through a door to door petition campaign within the community." Lemen obtained about 400 signatures on her petition.

Purportedly to document wrongdoing at the Village Inn, Lemen regularly stood outside the Village Inn's entrance, or sat in her parked van across the street, and videotaped Village Inn customers and employees entering and leaving the premises. Lemen's videotaping upset many customers. With video camera in hand, Lemen sometimes followed departing customers until they reached their cars and followed arriving employees up to the Village Inn's front door.

Lemen also took flash photographs of customers through the windows and doors of the Village Inn every Thursday and Saturday night for a year, upsetting the customers. On three occasions, she photographed an employee changing his clothes.

Lemen confronted customers and employees entering or leaving the Village Inn, calling them "whores," "drunk[s]," "satan," or "satan's spawn." Lemen called the wife of one of BIVI's owners the "madam whore." On one occasion, Lemen confronted a Village Inn employee and asked him if he was a Mexican. On another occasion, Lemen confronted one of the musicians (Arturo Perez) as he approached the Village Inn, asked him if he had a green card, and asked if he knew whether any illegal aliens worked in the restaurant.

Lemen told various Balboa Island residents the Village Inn sold liquor to minors, had child pornography, sold drugs, filmed sex videos inside, attracted "bikers," stayed open until 6:00 a.m., had prostitutes, had lesbian sex taking place, and was owned or influenced by organized crime. Lemen made many of these statements while circulating her petition. All of these statements about the Village Inn were false.

Lemen's conduct drove away customers from the Village Inn, causing it to lose an unquantified amount of business. Since filing this lawsuit, BIVI has created a "no loiter zone" around the Village Inn to prevent loitering late at night.

PROCEEDINGS IN THE TRIAL COURT

BIVI sued Lemen for nuisance, defamation, interference with business, and preliminary and permanent injunction. The first amended complaint, the operative pleading, sought only injunctive relief.¹

A bench trial was conducted over five days. Some 20 witnesses testified, either personally or through deposition transcripts and videotapes. After the conclusion of trial, the court prepared and issued a statement of decision. The trial court found: "The case before the court involves statements and conduct by Defendant which Plaintiff alleges have caused damage to Plaintiff's business. At trial, testimony and other evidence was presented to the court that Defendant has made statements to customers of Plaintiff, as well as residents of Balboa Island which include the following: Plaintiff sells alcohol to minors; stays open until 6:00 AM; 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; and serves tainted food. Some of these statements were made while Defendant was presenting a petition for signature regarding Plaintiff's business activities to island residents. On other occasions, the statements occurred while Defendant engaged in conversation with actual or prospective customers of Plaintiff who were entering or departing Plaintiff's premises. Evidence was also presented to show that Defendant has confronted employees of Plaintiff, questioned their legal status and demanded to see a `green card', accused employees of being `whores', called one of Plaintiff's owners the `madam of a whorehouse', and stated that `Satan' owns and operates Plaintiff. [¶] Evidence was also presented that Defendant has engaged in a regular course of video taping and still photography of Plaintiff's patrons and the activities in and around Plaintiff's premises. This has included a practice of following departing customers with video camera in hand and asking questions. In addition, there was evidence produced to show that Defendant has, at times, made a regular practice of parking her van across the street from Plaintiff's business and video taping the business and its patrons. Defendant was also shown to have taken still flash photos at night through the windows of Plaintiff's building."

As the trial court found, Lemen "denied most of the activity and statements attributed to her." The trial court resolved the credibility issue in BIVI's favor: "However, the Court is convinced by a preponderance of the evidence based on the many witnesses called to testify, that, in fact, Defendant did make the statements attributed to her and engaged in the other conduct previously described."

Relying on Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 87 Cal.Rptr.2d 132, 980 P.2d 846 (Aguilar), the trial court concluded injunctive relief limiting free speech may be permissible to prevent wrongful conduct, and believed "such a situation exists here." The court concluded, "it is crucial that such limitations be no more restrictive than...