IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
|
VIRGINIA L. LASWELL, an
Incompetent Person, etc., et al., Plaintiffs
and Respondents, v. MARY ELLEN LASWELL, Defendant
and Appellant. |
C062464 (Super.
Ct. No. 146066) |
Plaintiffs
Susan Laswell and Lorraine Buchla are the sisters of defendant Mary Ellen
Laswell. As the health of their
mother, Virginia Laswell, deteriorated, the disputes between the siblings
increased, culminating in a civil harassment restraining order against Mary
Ellen. On appeal, Mary Ellen
contends that there was no basis for this order and that the order infringes on
her constitutional rights. We
disagree and affirm.
Facts
and Proceedings
Virginia
Laswell had three adult daughters:
plaintiffs Susan and Lorraine, and defendant Mary Ellen. Virginia suffered from dementia and,
according to her doctors, was incompetent to make her own decisions.
Pursuant
to Virginia’s health care directive, trust, and power of attorney, Susan was
authorized to make decisions about Virginia’s care and finances. The health care directive empowered
Susan to make all health care decisions, such as choosing or rejecting
physicians, health care professionals and health care facilities. The power of attorney empowered Susan
to provide Virginia with “suitable living quarters,” to pay for Virginia’s
ongoing needs, and to arrange for “residential care [for Virginia] in a
convalescent hospital, skilled nursing home, or other alternative residential
facility.” Susan was also the
successor trustee of Virginia’s revocable living trust, which included
Virginia’s property in its corpus.
Mary
Ellen had lived with Virginia in Virginia’s house for more than 22 years, and
she continued to live in the house after Virginia was moved to convalescent
hospitals and then to Larkspur Lodge, a facility for dementia patients.
Problems
arose when Mary Ellen began to interfere in her mother’s care. Plaintiffs’ declarations described Mary
Ellen as berating the staff of Larkspur Lodge, making unfounded complaints, and
demanding special treatment for her mother. Mary Ellen threatened to report the care facility to regulatory
agencies, and made her complaints loudly in front of her mother, other
patients, their families and guests.
Mary Ellen had engaged in similar conduct at her mother’s previous care
facilities; in fact, defendant’s behavior was so disruptive that one of the
convalescent hospitals told Susan that it would not take Virginia back as a
patient because of Mary Ellen’s actions.
Plaintiffs
submitted a declaration from the owner of Larkspur Lodge that demonstrated that
this facility was equally unhappy with defendant’s conduct. The owner said that dementia patients
need a calm and stable atmosphere, and Mary Ellen’s tirades created
“pandemonium and disruption” for staff and residents. On one occasion, Mary Ellen was so disruptive that she had
to be physically removed from the premises. Mary Ellen had somehow obtained the combination to the door,
requiring the care facility to reset all of its combinations. Mary Ellen often called the facility to
discuss her mother’s medical treatment, even though Susan was responsible for
all health decisions. Larkspur
Lodge staff documented instances in which Mary Ellen criticized Virginia’s
appearance directly to Virginia, tried to make Virginia walk farther than she
was able, removed Virginia from strengthening activities because Mary Ellen
considered them childish, and told her mother that she was sorry she was
“locked in this awful place.”
According
to the residence staff, dementia patients are vulnerable and sensitive to how
they are treated by others. They
stated that Mary Ellen’s behavior was “not beneficial to her mother[’]s
well-being” and in fact was “harmful and intimidating” to Virginia and
disrupted her routine.
Larkspur
Lodge suggested a regular visiting schedule for Mary Ellen in the library of
the facility, and further suggested that any complaints Mary Ellen had about
her mother’s care be submitted to Susan for documentation before being sent on
to a regulatory agency. The
facility’s owner explained that he was required to respond to every written claim
to a regulatory entity, regardless of its merit, and a succession of frivolous
complaints became a burden. He
added that Virginia’s care would be more consistent if the facility dealt only
with Susan, who had been appointed to make decisions for Virginia under the
health care directive and power of attorney.
Larkspur
Lodge had informed plaintiffs that if Mary Ellen’s behavior could not be
controlled, it would have to discharge Virginia from their facility.
Susan
stated that there was no basis for any of Mary Ellen’s complaints about
Larkspur Lodge, and that Virginia was receiving good care. Lorraine believed that Mary Ellen was
engaging in this conduct only to “create an image that MARY ELLEN is in control
and has power over all of us.”
Lorraine stated that Mary Ellen was attempting to “interfere with,
burden and make impossible convalescent and custodial care of [Virginia],” and
“drive any convalescent facility to remove [Virginia] as a patient in order to
gain control over [her].” She
added, “[U]nless restrained in her
actions and statements, MARY ELLEN LASWELL will cause our mother to be
discharged from Larkspur Lodge or any other facility which can provide routine
and proper care and supervision.
In my observation, much of MARY ELLEN’S behavior is designed to harass
SUSAN and myself and to show that MARY ELLEN has power over our mother.”
Plaintiffs
reported other problems as well.
Mary Ellen had previously arranged Virginia’s release from one
convalescent hospital without informing Susan or Lorraine. She once took Virginia out from a
convalescent hospital for a full day without authorization and without
notifying staff. When Susan
succeeded as successor trustee of Virginia’s trust, she discovered that Mary
Ellen had withdrawn $10,000 from her mother’s account and could not account for
some missing deposits. Mary Ellen
refused to explain these transactions.
She refused access to the house for Susan to obtain Virginia’s wheel
chair, walker, health supplies or clothes, items needed for Virginia’s
transition to Larkspur Lodge.
Susan was also unable to get into the house to collect Virginia’s
business records for the preparation of Virginia’s tax returns.
Plaintiffs
sought a restraining order to stop Mary Ellen’s harassment. Mary Ellen’s behavior was described at
length in the petition and in declarations from Susan, Lorraine, and the owner
of Larkspur Lodge. Plaintiffs
asserted that this course of conduct caused substantial emotional distress.
Defendant
filed an answer to the petition but submitted no declarations or other evidence
in opposition to plaintiffs’ motion.
The trial court issued a civil harassment restraining order against Mary
Ellen after modifying some of the provisions suggested by plaintiffs. Because the terms of this order are at
issue in this appeal, we recount them in some detail.
The
order required Mary Ellen to stay at least 100 yards away from her sisters and
their spouses, and mandated that any contact between the sisters be through
written correspondence. The court
placed restrictions on Mary Ellen’s contact with Virginia and staff of Larkspur
Lodge. Specifically, the order
limited Mary Ellen to no more than five visits per week for no more than one
hour per visit, with visits to occur in a room designated by the facility
staff. Mary Ellen was also ordered
not to make “derogatory statements in regard to Larkspur Lodge or her mother’s
condition or the care or lack of care, her mother’s clothes, her mother’s care
or the services or attentiveness or any other similar complaint in a verbal
form or a written form, to her mother . . . or to the staff or other patients
or guests of those patients.
The
order continued: “No complaints
shall be filed by MARY ELLEN LASWELL, or any person acting on her behalf, with
county, state or federal health care or adult care licensing facilities or
agencies. If MARY ELLEN LASWELL
has objections to the conditions or services provided to VIRGINIA LASWELL or
other patients of a health care facility, she shall state them in writing and
deliver the writing to SUSAN LASWELL and to no one else, unless ordered to
provide such writing by a Court, after hearing, to third parties or
agencies.”
Mary
Ellen was ordered to give Susan and Lorraine access to Virginia’s home in order
to take photographs and document the need for any repairs, maintenance or
improvements. The court also
ordered Mary Ellen to give Virginia’s wheelchair, walker, clothing and health
care supplies to Susan for Virginia’s use and care.
This
appeal followed. Virginia died on
October 1, 2009, while this appeal was pending, and plaintiffs sought to
dismiss the appeal as moot. We
denied their motion.
Discussion
Code of Civil
Procedure section 527.6, subdivision (a) provides: “A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an injunction
prohibiting harassment as provided in this section.” (Unspecified statutory references that follow are to the
Code of Civil Procedure.)
Subdivision
(b) of that statute defines “harassment” as “unlawful violence, a credible
threat of violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the person, and that
serves no legitimate purpose. The
course of conduct must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial emotional
distress to the plaintiff.” (§
527.6, subd. (b).) A “course of
conduct” is further defined as “a pattern of conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose . . . .
Constitutionally protected activity is not included within the meaning
of ‘course of conduct.’” (§ 527.6,
subd. (b)(3).)
“Section
527.6 was enacted ‘to protect the individual’s right to safety, happiness and
privacy as guaranteed by the California Constitution.’ [Citations.] It does so by providing expedited injunctive relief to
victims of harassment.” (Brekke
v. Wills (2005) 125 Cal.App.4th 1400,
1412.)
However,
“[n]othing in the statute indicates that it was intended to supplant normal
injunctive procedures applicable to cases concerning issues other than
‘harassment’ as statutorily defined.”
(Byers v. Cathcart (1997) 57
Cal.App.4th 805, 811.) The
expedited procedures of section 572.6 contrast with the normal injunctive
process which allows time for investigation, pleadings, discovery, and a full
trial. The summary nature of
section 572.6 is balanced by limitations designed to narrow its scope. (Ibid.) “One
such limitation is that any injunction which results cannot exceed three years
in duration [and therefore] does not allow for final resolution of disputed
rights. Another limitation is that
‘harassment’ must be found by clear and convincing evidence before future
conduct may be enjoined.
[Citation.] Another
limitation is that a section 527.6 injunction may enjoin only ‘harassment’ as
defined. [Citation.] Conduct which serves a legitimate
purpose is outside the definition of ‘harassment’ and cannot be enjoined
pursuant to the summary procedures of section 527.6, even if such conduct might
ultimately be enjoinable according to normal injunctive procedures after full
development of the facts and law.”
(Ibid.)
Mary
Ellen asserts that the civil harassment restraining order issued by the court
did not meet the requirements of section 527.6. We do not agree with any of her contentions.
First,
she argues that Susan lacked standing to seek a civil harassment restraining
order on behalf of Virginia. She
emphasizes that the motion for the order indicated that Virginia’s request was
made “by Susan Laswell per AHCD,” the advanced health care directive, and that
none of the powers enumerated in that directive include the authority to seek a
restraining order. She contends
that Virginia herself would have had to seek a restraining order if she wanted
one.
Attachment
6 to the request for the restraining order explicitly states that Susan was not
only appointed to act under Virginia’s health care directive, but was also
appointed under a durable power of attorney and as a successor trustee to
Virginia’s trust. Contrary to Mary
Ellen’s characterization, Susan’s powers were not limited to health care
matters. She was authorized to
make financial decisions for Virginia, arrange for residential care, and
otherwise act in Virginia’s stead.
Susan’s powers were far broader than Mary Ellen recognizes.
In
any event, the restraining order in fact relates to Virginia’s health
care. Declarations described the
scenes Mary Ellen created at Larkspur Lodge. The owner of the facility explained that dementia patients
need calm and order and that Mary Ellen’s conduct was detrimental to Virginia
and the other patients. The owner
told plaintiffs that Virginia would be discharged from the facility if these
disruptions continued. Mary
Ellen’s behavior, the subject of the restraining order, was directly linked to
Virginia’s health care.
Mary
Ellen also contends that her conduct did not meet the statutory definition of
“harassment” because there was no “knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys, or harasses the
person.” (§ 527.6, subd. (b).) She also contends that certain items in
the restraining order were not directed toward stopping harassment. Again, we disagree.
The
declarations submitted in support of the restraining order describe Mary
Ellen’s behavior and threats, conduct that occurred in Virginia’s presence and
disturbed and disrupted Virginia’s treatment and care to the point that
Virginia might not be allowed to continue living at Larkspur Lodge. The declarations also described how
Mary Ellen refused to give Susan the medical and personal items required by
Virginia and how she otherwise sought to interfere with Susan’s powers to act
for Virginia. This evidence
established harassment as defined in section 527.6, and each enjoined activity
was the proper subject of a restraining order.
Finally,
Mary Ellen asserts that the restraining order violated her constitutional right
to free speech.
As
we have explained, “The United States Supreme Court has ‘long recognized that
not all speech is of equal First Amendment importance. It is speech on “‘matters of public
concern’” that is “at the heart of the First Amendment’s protection.” [Citations.]’ [Citation.] The
‘“special concern [for speech on public issues] is no mystery”: [¶] “The First Amendment ‘was
fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.’ [Citations.]
‘[S]peech concerning public affairs is more than self-expression; it is
the essence of self-government.’
[Citation.] . . . .”’
[Citation.] ‘In contrast,
speech on matters of purely private concern’--while ‘not totally
unprotected’--‘is of less First Amendment concern.’ [Citation.]
When such speech . . . causes damage, civil sanctions may be imposed
because ‘“[t]here is no threat to the free and robust debate of public issues;
there is no potential interference with a meaningful dialogue of ideas
concerning self-government; and there is no threat of liability causing a
reaction of self-censorship by the press. . . .” [Citation.]’
[Citation.]” (Brekke v.
Wills, supra, 125 Cal.App.4th. at p. 1409.)
Here,
the limitations placed on Mary Ellen relate to a private matter, namely, a
dispute over Virginia’s care. They
do not implicate matters of public concern and consequently do not raise First
Amendment issues.
We
recognize that the court’s order precludes Mary Ellen from complaining directly
to governmental agencies about care provided by Larkspur Lodge, a restriction
that might theoretically infringe on Mary Ellen’s right of free speech. However, the uncontradicted evidence
established that Mary Ellen made unfounded complaints as part of her harassment
campaign, thereby placing a burden of response on Larkspur Lodge and adding to
the emotional distress of Susan and Lorraine by raising the possibility that
Virginia would be discharged from the facility. It is important to note that Mary Ellen was not prevented
from making complaints; the order only regulated how those complaints were to
be made. It stated: “If MARY ELLEN LASWELL has objections
to the conditions or services provided to VIRGINIA LASWELL or other patients of
a health care facility, she shall state them in writing and deliver the writing
to SUSAN LASWELL and to no one else unless ordered to provide such writing by a
Court, after hearing, to third parties or agencies.” Given Mary Ellen’s past conduct, this restriction on the
manner of complaint is reasonable and does not violate the First
Amendment. (See Pacific Gas
& Electric Co. v. Public Utilities Com.
(2000) 85 Cal.App.4th 86, 93.)
Disposition
The
judgment is affirmed. Plaintiffs
are awarded their costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
HULL , J.
We concur:
BLEASE
, Acting P. J.
SIMS
, J.