Judge Teresa A. Beaudet, Case 20STCV47187 2023-04-24 Tentative Ruling

On December 9, 2020, Plaintiff David Mazor (“Plaintiff”) commenced this action against Defendants William Leys (“Leys”) and Jose Ortiz (jointly, “Defendants”) for stalking.

On August 24, 2021, Judgment was entered in this matter against Defendants, jointly and severally, in the total amount of $1,000,855.00, plus post-judgment interest.[1] The August 24, 2021 Judgment also includes specified injunctive orders.

On April 22, 2022, Plaintiff filed a Motion for an Order/OSC Re Contempt against Leys. Plaintiff contended that Leys failed to comply with certain injunctive orders contained in the August 24, 2021 Judgment. On May 16, 2022, the Court issued an Order granting Plaintiff’s motion. As set forth in the May 16, 2022 Order, the Court ordered Leys to appear in Department 50 on June 6, 2022 to show cause why he should not be held in contempt for failing to comply with the Court’s August 24, 2021 Judgment.

Leys now moves to dismiss the contempt proceedings against him. Plaintiff opposes.

The Court grants Plaintiff’s request for judicial notice as to Exhibits 1-11. The Court denies the request as to Exhibit 12.

Leys’s motion indicates that he “requests that the court dismiss the contempt proceedings against him because the underlying order is invalid since it improperly impinges upon his right to free speech protected by the First Amendment and by the California Constitution.” (Mot. at p. 1:14-17.) The Court notes that is unclear what specific “underlying order” Leys is referring to. The motion does not identify the date of any order that Leys contends is invalid.

Leys then asserts that “[t]he underlying judgment includes orders which are overbroad and violate Defendant’s rights of freedom of expression as enshrined by the First Amendment and the California Constitution.” (Mot. at p. 2:5-7.) Leys also asserts that “the underlying Judgment is overbroad and therefore unconstitutional.” (Mot. at p. 3:12-13.) Thus, Leys appears to be challenging the August 24, 2021 Judgment.

In support of the assertion that “the underlying Judgment is overbroad and therefore unconstitutional” (Mot. at p. 3:12-13.), Leys cites to Evans v. Evans (2008) 162 Cal.App.4th 1157, 1161, where “Thomas C. Evans (Thomas), a deputy sheriff, sued his former wife, Linda A. Evans (Linda), and Linda’s mother, alleging numerous causes of action, including harassment, defamation, and breach of privacy. The court then granted Thomas’s motion for preliminary injunction, and entered an order enjoining Linda and her mother from (1) publishing ‘false and defamatory statements’ about Thomas on the Internet; (2) publishing ‘confidential personal information’ about Thomas on the Internet; and (3) contacting Thomas’s employer (the San Diego County Sheriff’s Department (Sheriff’s Department)) ‘regarding [Thomas]’ except to call ‘911 to report criminal conduct.’” “Linda appeal[ed] from the order,” and the Court of Appeal “conclude[d] the preliminary injunction was overbroad and constituted an invalid prior restraint before trial.” (Ibid.)
Leys notes that the August 24, 2021 Judgment here provides, inter alia, that “Defendants…are permanently restraining and enjoined as follows: a. Defendants are to immediately take down the website, WICRLeaks.com (“Website”), and are prohibited from hosting, updating, and otherwise permitting the Website to remain up and running, being visible to any member of the public, and continuing to render accessible the Website URL on search engines results by any means at any time…”

Leys asserts that the “order to take down the entire Website ‘WICRLeaks.com’ and the injunction against the website to be up and running and/or accessible to the public is overbroad.” (Mot. at p. 4:3-4.) Plaintiff asserts that “[j]ust as in Evans, the sweeping prohibition fails to adequately delineate which of Mr. Leys’s future comments might violate the injunction and lead to contempt of court.” (Mot. at p. 4:5-8, citing Evans v. Evans, supra, 162 Cal.App.4th at p. 1169.) But in Evans, the Court held that “[t]he injunction broadly prohibited Linda from publishing any defamatory comments about Thomas. This sweeping prohibition fails to adequately delineate which of Linda’s future comments might violate the injunction and lead to contempt of court.” (Evans v. Evans, supra, 162 Cal.App.4th at p. 1169.) The August 24, 2021 Judgment does not prohibit Leys from publishing “defamatory comments” about Plaintiff.

In addition, Leys does not demonstrate how the August 24, 2021 Judgment fails to delineate which of Mr. Leys’s further comments might violate the injunction. Rather, the August 24, 2021 Judgment specifies as follows:

“Defendants are hereby prohibited from present and future postings of Mazor’s name and likeness, and the names and likenesses of Mazor’s immediate family, as defined in Civil Code § 1708.7(a)(2)(A), WICR Waterproofing and Construction, Inc. (“WICR”), and the names, logo, and likenesses of Lindborg & Mazor LLP, the name and logo of WICR (collectively, the “Protected Persons” and “Protected Material”) on any website, social media platform, or any other method, and otherwise harassing, intimidating, molesting, attacking, striking, stalking, threatening, assaulting, hitting, abusing, directly or indirectly communicating, disturbing the peace of, and destroying, interfering with, or otherwise damaging the personal property of the Protected Persons, including Mazor’s business, by, inter alia, continuing to render accessible any and all prior postings relating to the Protected Persons or the Protected Material on search engines results by any means at any time…”

The Court thus does not find that Leys has demonstrated that the August 24, 2021 Judgment is overbroad.

In addition, in the opposition, Plaintiff asserts that the August 24, 2021 Judgment “is res judicata” and that Leys may not collaterally attack the Judgment. Plaintiff cites to Frank v. Frank (1969) 275 Cal.App.2d 717, 722, where the Court of Appeal noted that “[i]t is the general rule in this state that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction of both the subject matter and the parties. As stated in 1 Witkin, California Procedure (1954) pages 411-412, ‘If there is jurisdiction of the subject matter and the parties, one who complains of the act is usually before the court. He has an opportunity to object, or to have the judgment or order reviewed by the usual methods of direct attack, such as new trial or appeal. . . . In brief, there are adequate methods of direct attack on such judgments, and there is almost a presumption of negligence on the part of the aggrieved party who fails to seek these normal remedies and later raises the objection by collateral attack.” (Internal citations omitted.) In Frank, the Court of Appeal found that “the court in the prior divorce proceeding had jurisdiction over the subject matter and the parties and its alimony award was erroneous only in the sense that it was contrary to statute. It presents a situation directly converse to that in the Farley case and the defendant herein, having failed to challenge the alimony award by direct appeal, must, in fairness, be held barred from collaterally attacking it.” (Id. at pp. 722-723.)

Plaintiff contends that “[i]f a defendant who failed to raise a direct attack is, in fairness, barred from collaterally attacking an order, then the Contemnor who has already attacked the Judgment multiple times, is most certainly now barred from attacking the Judgment collaterally in these enforcement proceedings.” (Opp’n at p. 4:14-17.) The Court agrees. Plaintiff notes that here, on September 8, 2021, the Court issued a minute order providing, inter alia, that “[t]he Ex Parte Application Notice of Motion & Motion To Set Aside The Judgement & Any Default And To Quash Any Writ of Possession/Execution Under CCP 473.5, 474(b), 473(d) & 128(a)(8) filed by William Leys on 09/03/2021 is Denied.” On October 29, 2021, the Court issued an order denying Leys’s Motion to Set Aside Judgment and to Quash Writs. In addition, on December 27, 2021, Leys filed a Notice of Appeal, in which he appealed the Court’s October 29, 2021 Order. On February 17, 2022, the Court of Appeal issued an Order granting Plaintiff’s motion to dismiss the appeal. The Court of Appeal’s February 17, 2022 Order provides, inter alia, “[t]he appeal (notice of appeal filed December 27, 2021) is hereby dismissed as untimely.” (Plaintiff’s RJN, Ex. 5.) In addition, on August 18, 2022, the Court issued an order denying Leys’s Motion to Declare the Default Judgment Void on its Face Under CCP 473(D).

The Court notes that Leys did not file a reply in support of the motion and thus does not address Plaintiff’s contention that “the Judgment is res judicata and cannot be collaterally attacked where, as here, the Contemnor directly attacked it several times and the Judgment has already been upheld both by this Court and the Court of Appeal.” (Opp’n at p. 1:18-20.)

Plaintiff also asserts that Leys’s conduct is not the type of “speech” that is constitutionally protected, and that Leys “waived all questions not previously raised, including constitutional questions.” (Opp’n at p. 6:8-9.) Here too, the Court agrees. Leys cites to Phillips v. Campbell (2016) 2 Cal.App.5th 844, 847, where “James Eugene Campbell, Jr., appearing in propria persona, appeal[ed] from a [Domestic Violence Prevention Act (DVPA)] restraining order prohibiting him from harassing or contacting respondent and compelling him to stay at least 500 yards away from her person, residence, and workplace. In addition to claiming that the parties did not have a dating relationship, appellant contend[ed] that the trial court (1) erroneously denied his motion to dismiss the case, (2) erroneously granted the restraining order because his conduct was nonviolent, and (3) violated his First Amendment rights of freedom of speech and expression.” The Court of Appeal affirmed. (Ibid.)

In Phillips, the “trial court ordered appellant to not post photographs, videos, or information about [respondent] to any internet site and to remove the same from any internet site over which he has access or control. Appellant argue[d] that the order violated his First Amendment rights of freedom of speech and expression.” (Phillips v. Campbell, supra, 2 Cal.App.5th at p. 853 [internal quotations omitted].) The Court of Appeal found that “[a]ppellant did not raise [this] constitutional issue[] below and do[es] not explain why [it is] being raised for the first time on appeal…Points not raised in the trial court will not be considered on appeal. ‘Even a constitutional right must be raised at the trial level to preserve the issue on appeal. In civil cases, constitutional questions not raised in the trial court are considered waived.” (Id at p. 853 [internal quotations and references to [Citation.] omitted.) The Phillips Court further found that “[i]f the issue were properly before us, we would reject [appellant’s First Amendment] argument because [his] ability to continue to engage in activity that has been determined after a hearing to constitute abuse [under the DVPA] is not the type of speech afforded constitutional protection.” (Id. at pp. 853-54 [internal quotations omitted].)

In the Complaint in this case, Plaintiff alleges that “Leys has carried out a knowing and willful campaign of stalking, harassing and tormenting Plaintiff and Leys’ targets, intentionally or recklessly placing [Plaintiff] in reasonable fear for his safety and the safety of those close to him…” (Compl., ¶ 9.) Plaintiff further alleges that “in a recent decision in a case in which Leys individually testified as a putative expert for a prior WICR customer who clearly read Leys’ website…the former presiding judge of San Bernardino County Superior Court described Leys’ obsession with [Plaintiff] as follows: For reasons that are not clear, Leys had extraordinary enmity toward WICR and [Plaintiff] in particular. He operated a website called WICRleaks in which he offered his services to any client of WICR with the stated goal of accumulating citations against WICR by the CSLB. He was not shy about concealing his disdain for Mazor and his business. Exhibit 15 is an email sent by Leys to [WICR’s] counsel on the eve of his testimony in which he stated that he relished the thought of testifying for Defendants noting, ‘Did you really think I’d miss the opportunity to testify against your client?’ Further he wrote, ‘[Mazor and WICR] have left me waiting to serve up a dish of cold revenge for a while’ and ‘people you’ve f’d over will wait for the right time to put the figurative knife into [Plaintiff’s] back and twist it.’ His website contains equally colorful, violent and profane metaphors regard[ing] WICR and [Plaintiff] in particular. The court cannot give serious consideration to his opinions under these extraordinary circumstances.” (Compl., ¶ 12.)

As set forth above, Leys did not file a reply in support of the motion, and thus does not address Plaintiff’s assertion that Leys conduct is not the type of “speech” that is constitutionally protected.

Based on the foregoing, the Court does not find that Leys has demonstrated grounds for dismissing the contempt proceedings against Leys.

[1]The Judgment was signed on August 23, 2021 and filed on August 24, 2021.

[2]Civil Code section 1708.7 provides, inter alia, that “[a] person is liable for the tort of stalking when the plaintiff proves all of the” specified “elements of the tort…” (Civ. Code § 1708.7, subd. (a).)

Superior Court of California

County of Los Angeles

Department 50