Martorano v. Fagan - jerk attorney backyard noisemaker

This appeal arises from a prolonged dispute between two neighbors in Malibu. After Dr. David Martoranos initial complaints about the noise from Attorney Barry Fagans barking dog, Fagan began a lengthy scheme of harassment involving the playing of music in his rear yard while nobody was home, shouting invectives at Martorano, and finally installing in his rear yard a set of drums which Fagans children occasionally played. Pursuant toCode of Civil Procedure section 527.6,[1]the trial court held a hearing on Martoranos harassment claim and then issued an order enjoining certain activities.

The injunction, in pertinent part, required that Fagan stay at least 20 feet away from Martorano and his wife, enjoined Fagan from harassing and threatening them and destroying their personal property, and placed various restrictions on Fagans use of sound producing devices at his residence. We find Fagans challenges to the restraining order unavailing and affirm.


The general right of every person to enjoy his own property and engage in any lawful and innocent amusement therein is not an unlimited right. (In re Hall (1920) 50 Cal.App. 786, 789.) The right to enjoy ones own property may be restricted where a person encroach[es] upon the rights of others (ibid.), such as Fagans insidious encroachment on Martoranos right to be free from harassment. To the extent the enjoyment of music is a constitutionally protected activity, it is not an absolute right. The enjoyment of music is, as in the present case, subject to reasonable constraints as to time, place and manner. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!