Case of the Month Archive

Substantial evidence supports finding that online posts constituted harassment. . .

In affirmance, the Sixth District held sufficient evidence in the record supported the trial court's issuance of a civil harassment restraining order against 17-year-old who posted videos to TikTok and Instagram in which she accused protected party of supporting sexual abuse and where the videos displayed protected party's image and contact information and encouraged social media followers to pressure protected party to stop assisting mother in a custody dispute matter.

In July 2018, M.L.'s mother began a relationship with E.G., who was married in a non-monogamous relationship. E.G. lived part time with M.L.'s mother during their relationship, and E.G. and her wife occasionally babysat M.L. and her younger brother. During this time, M.L.'s mother and father were in a contentious custody dispute. In 2022, M.L. and her brother made allegations that their mother physically, psychologically, and sexually abused them.

In October 2022, the trial court in the custody matter found M.L. and her brother's allegations of abuse were "'not credible,'" that their mother did not sexually abuse them, and that their mother was a "'safe parent.'" The trial court awarded custody to the children's mother. With the help of E.G., mother prepared to move the children from Santa Cruz to Olympia, Washington. However, according to M.L., before moving, mother arranged for the children to be "'violently taken'" to a reunification camp in Los Angeles where they were "'seriously assaulted and injured, both physically and psychologically.'" Opposing their participation in the reunification camp, M.L. continued to maintain that mother sexually abused the children and that the move to Washington was a tactic to isolate them from their family, friends, and support. M.L. further alleged that mother and E.G. were still "'openly romantically involved'" at the time.

In May 2023, the children ran away from mother in Washington and returned to Santa Cruz, where they hid at a friend's house and paternal grandmother's house. Two months later, a neighbor told M.L. that a friend of E.G. was staying at a neighbor's house to spy on the children and report their whereabouts to mother. M.L. believed E.G. was stalking her and her brother for the purpose of helping mother "'kidnap [them] back.'"

TikTok and Instagram videos ask followers to pressure E.G. to stop assisting mother in custody proceeding. . .
In early July 2023, M.L. posted a video on TikTok and Instagram in which she accused E.G. of supporting mother's sexual abuse of the children. In the video, M.L. described an incident in which she alleged mother and E.G. left the children alone in a hotel room all night while mother and E.G. went to another room to have sex with E.G.'s other partners. M.L. also accused E.G. of spying on the children while they were hiding with friends and family in Santa Cruz. M.L.'s video displayed several photos of E.G. and included her office address, phone number, and e-mail.

In another video posted to TikTok and Instagram later that month, M.L. referred to E.G. as "'mother's girlfriend'" and accused E.G. of dating and supporting "'a pedophile and child abuser.'" M.L. further accused E.G. of using her position as a therapist to influence the police investigation into the abuse allegations. M.L. again displayed photos of E.G. as well as her contact information and asked her social media followers to "'please pressure'" E.G. and "'make her stop.'"

On July 20, 2023, E.G. filed a request for a civil harassment restraining order pursuant to CCP §527.6 against M.L., alleging that, as a result of M.L.'s social media posts, E.G. received numerous threats and harassment from unknown third parties. One message told E.G. that she "'better look left[,]…better look right'" and that E.G. should be paranoid because they were watching her. Several messages used expletives and accused E.G. of supporting sexual abuse. E.G. further stated that numerous false Google reviews had been made to her online business listing. In response, M.L. noted that she removed the social media posts upon learning about the restraining order request. M.L. further argued that she acted with a legitimate purpose when posting the videos, since she was on the run from her mother and was afraid that E.G. was helping her mother "'recapture her.'"

Trial court issues a three-year restraining order. . .
On August 31, 2023, the trial court (Santa Cruz County's Sheinbaum) granted a three-year civil harassment restraining order against M.L. In so ruling, the trial court took judicial notice of the findings and decisions in the custody dispute, including that the children's sexual abuse allegations were "'not credible'" and that mother was a "'safe parent.'" M.L. appealed, but the Sixth District modified the trial court's order and affirmed.

The panel began its analysis by describing the applicable law. Per CCP §527.6(a)(1), a person who has suffered harassment may seek a restraining order prohibiting such conduct. For these purposes, the definition of harassment contains six elements: (1) a knowing and willful course of conduct (2) directed at a specific person; (3) which seriously alarms, annoys, or harasses the person; (4) which serves no legitimate purpose; (5) which would cause a reasonable person to suffer substantial emotional distress and actually causes substantial emotional distress to the plaintiff; and (6) which is not a constitutionally protected activity. "Course of conduct," in turn, is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email."

With these legal principles in mind, the justices turned to M.L.'s arguments on appeal, which challenged the sufficiency of the evidence relating to four of the six elements of unlawful harassment. First, M.L. argued that her actions did not constitute a course of conduct. More specifically, she argued the trial court found only one of the videos constituted harassment, and despite the video being posted on two social media platforms, the posting constituted "'a single act at a single point in time.'" The justices disagreed, noting that the trial court did not in fact find that only one of the posts met the definition of harassment. The justices noted that although the trial court referred to the Instagram posting in the singular, such reference is not determinative, particularly since the trial court described the posting in a manner inclusive of both videos. The justices further noted that, in any case, they are not limited by the trial court's reasoning on appeal and concluded that when taken as a whole, M.L.'s online activity relating to E.G. constituted a course of conduct for purposes of CCP §527.6.

Second, M.L. argued that her video postings served a legitimate purpose and was constitutionally protected speech insofar as she was reaching out for help because she "'feared for her life and the life of her brother.'" The justices again disagreed, noting the trial court did not credit M.L.'s statements that E.G. was stalking her. For her part, E.G. testified that she "'never spied'" on M.L. and that at the time M.L. posted the videos, E.G. had not been in contact with M.L.'s mother for two years. The justices also noted the trial court in the family law proceeding determined M.L.'s accusations against her mother were false and not credible.

Next, M.L. argued there was no evidence that E.G. suffered substantial emotional distress from M.L.'s conduct. The justices, however, concluded that amply evidence supported the trial court's finding on this element. Not only did E.G. receive "disturbing and threatening messages," but numerous false reviews were posted to E.G.'s business listing. The justices concluded that such consequences would cause a reasonable person to suffer substantial emotional distress and did actually cause E.G. substantial emotional distress.

Finally, M.L. argued that the challenged conduct was not ongoing or likely to recur. More specifically, she argued that not only did she remove the post voluntarily once she learned that E.G. had filed a request for a restraining order, but once she turns 18 years old and is no longer under the jurisdiction of the family court, there is no reason to support the conclusion that the challenged conduct would recur. The justices disagreed in part and agreed in part with this argument. Noting that the trial court expressly found M.L.'s course of conduct "'likely to continue unless a restraining order prohibits it going forward,'" the justices concluded substantial evidence supports the trial court's determination. For example, M.L. posted her videos on separate occasions and on different platforms and only removed the videos because of the pending restraining order. Although M.L. claimed that she removed the videos upon learning of the restraining order, E.G. testified that one of the videos was still circulating TikTok only a few days before the hearing. Moreover, M.L. repeated her accusations against E.G. at trial, despite the prior adjudication in the family court that these accusations were false. For these reasons, the justices concluded a recurrence of harassment was likely.

Despite this conclusion, the justices also noted that the evidence does not support continuing the restraining order beyond M.L.'s 18th birthday. The justices agreed with M.L. on this point that her social media posts were closely tied to the family court case and, specifically, her fear of being returned to her mother's custody. For example, the posts began only when M.L. was "'in hiding and in fear'" of being returned to her mother and because she believed E.G. was helping her mother regain custody. Once M.L. turns 18 years old, she "'will then have the right and responsibility to make her own decisions' regarding her residence and the role of her parents in her life.'" For these reasons, the justices modified the injunction to expire on M.L.'s 18th birthday.

Accordingly, the Sixth District modified the civil harassment restraining order to expire on M.L.'s 18th birthday and affirmed the order as modified.