Brekke v. Wills

• Decision Date: 25 January 2005
• Docket Number: No. C044810.,C044810.
• Citation: 23 Cal.Rptr.3d 609,125 Cal. App. 4th 1400
• Court: California Court of Appeals
• Parties: Beverly L. BREKKE, Plaintiff and Respondent, v. Dean WILLS, Defendant and Appellant.

23 Cal.Rptr.3d 609

125 Cal.App.4th 1400

Beverly L. BREKKE, Plaintiff and Respondent, v. Dean WILLS, Defendant and Appellant.

No. C044810.

Court of Appeal, Third District.

January 25, 2005.

Review Denied April 27, 2005.

Freda D. Pechner, Garden Valley, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

SCOTLAND, P.J.

This case is a parent's nightmare come true. Plaintiff's 16-year-old daughter, Danielle, started acting out after she became the girlfriend of a 15-year-old boy, defendant, whom she met at school. In addition to her behavioral problems at home, Danielle began skipping school, her grades declined, and she failed three classes. Fearing that her daughter might be using drugs, plaintiff openly searched Danielle's room and found some disturbing letters written by defendant, instructing Danielle how to retaliate against plaintiff for the restrictions that she had imposed on Danielle. Believing that defendant was a cause of Danielle's behavior problems, plaintiff told them they could no longer see each other.

Defendant became angry and wrote three vile and vitriolic letters to Danielle, anticipating that plaintiff would discover and read them. One letter—repeatedly demonstrating that defendant's favorite word is "fuck"—relates his plan to deliberately provoke plaintiff or Danielle's father into physically attacking defendant, whereupon he would sue them and, "[w]hen we're eighteen then we can use the money to be together." Another letter, with the salutation, "Dear Bev [plaintiff]," warns that her efforts to stop Danielle from seeing defendant are for naught, "Fuck you in the ass. You won't win," and states "just fucking give up and let us live our own damn lives." Saying, he "`oughta'" date "`your daughter,'" because "`I like the way she tastes,'" defendant tells plaintiff to "[j]ust get away from my ass and rape yourself you psychotic fucking whore." Yet another letter contemplates defendant and Danielle killing plaintiff and her husband, after which "there will be no trace of your parents. Then we'll go hang out."

Alarmed that defendant became angry when plaintiff told Danielle she could no longer see him, that he wrote letters "instructing/coaching my daughter to create disharmony in my home," and that he even contemplated killing plaintiff and her husband, plaintiff sought "a temporary restraining order and an injunction prohibiting harassment" by defendant. (Code Civ. Proc., § 527.6.)

Apparently coddled rather than castigated by his parents, the 15-year-old defendant showed up in court with an attorney to defend what appears to be indefensible. Wrapping himself with the "[f]reedom of speech, freedom of association, [and] right of privacy," defendant declared he did "nothing to Plaintiff or any member of her family that would merit an injunction." According to defendant, his letters were "not a threat to anyone," but were "a joke" designed to prove that plaintiff was searching Danielle's room since "we knew she would say something if she found it." In defendant's view, the letters would not have caused a reasonable person in plaintiff's position to suffer substantial emotional harm because "any parent should expect some emotional distress when they do not like their children's choice of friends." Defendant denied that he had ever manipulated Danielle or coached her to create disharmony in plaintiff's home, and he blamed plaintiff for Danielle's problems in school.

Unmoved by defendant's pronouncement that he and Danielle "would like our parents to accept the fact that we love each other, and that we would never hurt each other or each other's families, either," the trial court enjoined defendant from contacting Danielle and members of her family, and ordered him to stay at least 100 yards away from them, except at school where he must stay at least 20 feet away.

On appeal, defendant contends the order must be reversed because (1) there was no evidence of a credible threat of violence or a knowing and willful course of conduct by defendant that would seriously alarm, annoy, or harass a person, (2) the injunction violates his rights of freedom of expression and association, and his right to privacy, and (3) the order is void because it contains no expiration date.

We shall affirm the injunction as modified to expire when Danielle becomes an adult on her 18th birthday. As we will explain, defendant engaged in a course of conduct directed at plaintiff that seriously alarmed, annoyed, and harassed her; that would cause a reasonable person to suffer substantial emotional distress; and that actually caused plaintiff to suffer substantial emotional distress. (Code Civ. Proc., § 527.6, subd. (b).) Utterly without merit are defendant's claims that the injunction violates his constitutional rights. His speech—which was used to annoy, ridicule, and threaten plaintiff—was entitled to no protection because it was between purely private parties, about purely private parties, and on matters of purely private interest. Defendant has no right to associate with Danielle, who is a minor child. And the right of privacy does not entitle him to interfere with plaintiff's exercise of her fundamental right as a parent to direct and control her daughter's activities. Finally, contrary to defendant's claim, the injunction has an expiration date and is not void. However, it must end when Danielle becomes an adult and has the right and responsibility to make her own decisions about those with whom she will associate.

FACTS

We summarize the facts in the light most favorable to the judgment. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787, 16 Cal.Rptr.3d 374, 94 P.3d 513.)

While attending the same school, plaintiff's 16-year-old daughter, Danielle, and the 15-year-old defendant, Dean Wills, became girlfriend and boyfriend. Thereafter, Danielle's relationship with her parents deteriorated, and she began to display negative behavior at home. She also started skipping classes at school and failed three courses.

Danielle's parents attempted to correct the situation by having Danielle see a counselor, getting counseling themselves, and attending parenting classes. Concluding that Danielle's relationship with defendant was not a "healthy one" and that he was undermining the family's efforts to deal with Danielle's problems, plaintiff told her daughter that the relationship with defendant must end.

Defendant then telephoned plaintiff because he did not understand why he could not see Danielle. According to plaintiff she tried to explain why she was concerned about his relationship with Danielle, but defendant "argued every point" and would not listen to what she had to say. Plaintiff finally became frustrated and "just basically said we're done with this conversation," told him, "You need to stay away from my daughter," and "hung up the phone at that point." In a letter he wrote to Danielle, defendant admitted laughing at plaintiff when she said that she was trying to do what was best for Danielle, and he acknowledged "cuss[ing]" at plaintiff, saying Danielle was "fucking scared" of her.

When plaintiff began to fear that Danielle might be using drugs, she searched Danielle's room and found letters that her daughter had received from defendant. According to plaintiff, "many of them were disturbing but not threatening. Some of them were instructions on how to retaliate against me for the consequences [Danielle] was getting. Those were—I think those ones were kind of manipulative but not serious threats."

Plaintiff did not make a secret of the fact that she was searching Danielle's things; and based on substantial evidence, the trial court found that defendant knew plaintiff would search for additional letters. So he gave Danielle three more letters with the expectation that plaintiff would read them. Two of the letters are signed "Bill Aaron." The third, addressed to plaintiff, is unsigned. For "[n]o particular reason," defendant prefers to be known as Bill and uses his middle name of Aaron as a last name. He concedes that he wrote the letters.

In one letter defendant states, "Your mom is crazy," repeats that assertion several times, and relates a plan to deliberately provoke plaintiff or Danielle's father into physically attacking defendant. He says he will do nothing to respond, but will then call his lawyer. Danielle's parents will be forced to pay his bills for the rest of his life and, when defendant and Danielle are 18 years old, they can "use the money to be together. Buy a big house, pay for a huge wedding, a long honeymoon. We'll make sure to let your parents know that they're paying for it. They on the other hand, will be living in the caddy all broken down and shit. It'll work out fine."

Defendant goes on to say: "Your mom's a stupid whore.... She fuckin' lied straight up to you though.... There is no way she could get a restraining order. The judge will laugh at her. Also, I have a good lawyer already and she doesn't.... So I'm going to ruin the things between you two huh? What is there to ruin, a door? He. He. He.... Your mom said that now that you can't see me that you've been more cooperative with her and your [sic] not being as disobedient. I told her that was because you were scared of her and she said, no, I really think she's trying to be a better person and earn our trust back. `She's fucking scared of you!' That was the only time I cussed at her. Yeah, we argued that one for a while. Apparently you had her going. She really thought what she was doing was working. She's a pretty smart person NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE. He. He. Very intelligent. lol." Defendant acknowledges he laughed at plaintiff when she said that she was doing what was best for her daughter.

After relating how plaintiff ended her telephone conversation with him, defendant says: "Fuck her. Stupid bitch. I hope she reads this too. Just in case she read [sic...