Parisi v. Mazzaferro

• Decision Date: 23 November 2016
• Docket Number: A145643
• Citation: 210 Cal.Rptr.3d 574,5 Cal.App.5th 1219
• Court: California Court of Appeals Court of Appeals
• Parties: William PARISI, Plaintiff and Respondent, v. Ronald MAZZAFERRO, Defendant and Appellant.

5 Cal.App.5th 1219

210 Cal.Rptr.3d 574

William PARISI, Plaintiff and Respondent,

v.Ronald MAZZAFERRO, Defendant and Appellant.

A145643

Court of Appeal, First District, Division 5, California.

Filed November 23, 2016

Ronald Mazzaferro, in pro. per., for Defendant and Appellant.

Law Offices of Lynn Searle and Lynn S. Searle, San Francisco, for Plaintiff and Respondent.

BRUINIERS, J.

William Parisi obtained a civil harassment restraining order (Code Civ. Proc., § 527.6 )¹ against his father-in-law, Ronald Mazzaferro. Among other grounds, Mazzaferro challenges sufficiency of the evidence to support the restraining order and alleges the order imposes unlawful prior restraint on his First Amendment and state constitutional rights. We remand to the trial court to more precisely define the scope of conduct prohibited by the restraining order, but otherwise affirm.

I. BACKGROUND AND PROCEDURAL HISTORY ²

Mazzaferro is a vexatious litigant. The genesis of this appeal and several others to which Mazzaferro is, or has been a party,³ appears to be litigation resulting in his replacement as trustee of a living trust.⁴

Parisi is the conservator for a trust beneficiary and dependent adult. Parisi alleged financial elder abuse and fraud by Mazzaferro and others in a petition he filed on behalf of that dependent adult in the San Francisco Superior Court.

In this matter, Parisi sought protection for himself and his immediate family—his wife and three adult children (Mazzaferro's daughter, two granddaughters, and grandson)—from an ongoing campaign of harassment by Mazzaferro. In his restraining order petition, Parisi identified 21 litigation matters filed against him in state or federal courts by Mazzaferro, or others acting on his behalf, all of which were resolved in Parisi's favor.⁵ In addition to Mazzaferro's litigation history, Parisi's petition and supporting declarations focused on Mazzaferro's harassment of one of Parisi's daughters at her place of employment, and on series of letters written by Mazzaferro to Parisi's employer and others accusing Parisi of civil fraud and criminal behavior.

In 2010, Mazzaferro repeatedly came to the Sonoma Whole Foods Market where his granddaughter worked, and he followed her around the store. She was "completely terrified" of Mazzaferro and tried to avoid him. Mazzaferro wrote a letter to the store's corporate offices complaining she had been rude to him. She transferred to a store in Santa Rosa to get away from Mazzaferro. He went to that store several days in a row, greatly upsetting her. When told by a Whole Foods supervisor not to come to the store anymore, Mazzaferro threatened to sue Whole Foods. Mazzaferro's granddaughter ultimately obtained a transfer to Nevada to avoid his harassment.

In 2014, Mazzaferro wrote letters to realtors who had sale listings on two properties owned by his mother. In a March letter to Pacific Union Realty, Mazzaferro called Parisi "scum of the earth filth who preys on the elderly" and accused him, among other things, of falsifying a trust and numerous property deeds; embezzling federal housing funds; facilitating false annuity schemes and setting up false bank accounts; bankruptcy fraud; making false police reports; and threatening to murder Mazzaferro. Mazzaferro alleged Parisi was under investigation by the Sonoma County District Attorney for financial elder abuse of Mazzaferro's mother and was facing imminent arrest for obstruction of justice and "numerous felonies." An April letter was addressed to the supervising broker at Pacific Union Realty and accused Parisi of being involved in interstate real estate embezzlement schemes, federal housing fraud, and recording a "legion" of false deeds to embezzle federal housing monies. Mazzaferro threatened the supervisor with civil, criminal, or administrative "entanglements" as well as a formal complaint to the California Department of Real Estate if the property listings were not cancelled. In a September letter to Pacific Union Realty, Mazzaferro again claimed Parisi was under federal investigation for embezzlement of federal housing funds and falsification of financial records.

In January 2015, Mazzaferro sent a letter to the risk management department for Sonoma County demanding that Parisi, a probation officer, be "fired forthwith." The letter accused Parisi of "criminal activity," including making a false police report, falsification of a trust, and involvement in the "suspicious death" of Mazzaferro's father. Mazzaferro threatened to seek financial damages from the county and cause the probation department "extreme embarrassment" by publicizing the information in the letter if Parisi were not fired immediately. A letter sent the following February demanded an "update" on all actions taken by the probation department against Parisi for the "criminal felonies" Mazzaferro alleged Parisi had committed against him.

In March 2015, Mazzaferro sent letters by certified mail to local businesses regarding a property sold by his mother. Mazzaferro alleged in those letters that Parisi committed financial elder abuse of Mazzaferro's mother, as determined by the Sonoma County District Attorney. Mazzaferro also alleged Parisi was "associated with" a "convicted felon embezzler" and committed "criminal frauds." In a May 2015 letter to the city attorney for Sonoma, Mazzaferro accused Parisi of stalking him and alleged Parisi approached him threateningly in a "drug induced violent rage" in a supermarket parking lot, preventing him from safely getting into his car.⁶

On May 14, 2015, Parisi filed the instant petition, supplemented by exhibits and declarations from his counsel and his wife. Mazzaferro filed a lengthy response. Mazzaferro also filed a "Cross Petition For Civil Harassment Restraining Orders," incorporating the allegations of his previously denied petition for a restraining order against Parisi (see fn. 6). A hearing calendared for June 4 was continued at Mazzaferro's request to permit him to retain counsel. The court issued a temporary restraining order pending full hearing and made a preliminary finding that Mazzaferro's letters were sent with the intent to harass Parisi.

At the continued hearing on July 2, 2015, Mazzaferro appeared with counsel.⁷ Parisi and his wife were sworn as witnesses and verified the contents of the petition and supporting declarations and exhibits. Mazzaferro also was sworn as a witness. In his declarations and testimony, Mazzaferro admitted writing the letters at issue. However, he denied in testimony that the letters were intended to harass Parisi and insisted their contents were "absolutely true." As to allegations he harassed his granddaughter, Mazzaferro denied that any of the incidents occurred and denied writing a letter of complaint to her employer. Mazzaferro's daughter testified in rebuttal. At the hearing's conclusion, the court (Hon. Julie Conger) made express credibility findings, telling Mazzaferro, "I do not believe you, sir. I believe that you have given false testimony. I am afraid that I—there is just too much to contradict your denials; specifically, the letters that I have reviewed put me in the feeling that you—I cannot believe the remainder of your testimony." The court issued the requested restraining orders, including protection of other family members residing in the Parisi household.⁸

The trial court's oral orders included prohibition of written communications by Mazzaferro to any third parties or governmental agencies with the intent to harass Parisi or his immediate family. Communications by Mazzaferro, which named any of the protected parties, were to be submitted in advance to the court and Parisi's counsel for review. The court noted Mazzaferro would have a right to a hearing on the propriety of any proposed correspondence, but, as a vexatious litigant, he would be required to post a bond for attorney fees if a hearing were requested. A written restraining order was issued and filed on the date of the hearing. Mazzaferro filed a notice of appeal on July 6, 2015. An amended civil harassment restraining order, embodying the additional orally announced terms, was filed July 17, 2015. Mazzaferro's application for permission, as a vexatious litigant, to file the instant appeal (§ 391.7) was granted on July 24, 2015.⁹

II. DISCUSSION

Mazzaferro challenges sufficiency of the evidence to support the restraining order.¹⁰ He further asserts the order is an unconstitutional restraint on his rights of expression and petition under state and federal constitutions. He also objects to inclusion of his grandson as a protected person and contends the bonding requirement is unenforceable.

A. Standard of Review

We review issuance of a protective order for abuse of discretion, and the factual findings necessary to support the protective order are reviewed for substantial evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135, 95 Cal.Rptr.3d 799 [restraining order under the Elder Abuse Act]; USS–Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444, 4 Cal.Rptr.3d 54.) "We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. [Citation.] Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal." (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137–1138, 67 Cal.Rptr.3d 2.) Whether the facts are legally sufficient to constitute civil harassment within the meaning of section 527.6 is a question of law reviewed de novo. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188, 135 Cal.Rptr.3d 791.)

We engage in a further analysis when a...