Hacking, Defamation and Anonymity

This post examines an opinion the Superior Court of New Jersey – Appellate Division recently issued in a civil case:  Warren Hospital, et al. v. John Does 1-10, __ A.3d __, 2013 WL 1349323 (2013).  The plaintiffs include Warren Hospital, six individuals, the Warren Hospital Foundation, Inc. and Warren Healthcare, Inc.  Warren Hospital, et al. v. John Does 1-10, supra. 

As to the defendants, this is how the opinion explains the nature of the suit and the facts that gave rise to it:

Plaintiffs allege that, on August 17, 2008, John Doe One, an anonymous hacker using IP address 75.126.xx.yyy, accessed Warren Hospital's website and unlawfully and without permission logged onto the hospital's secure mailbox. 

John Doe One then composed and sent to all hospital employees an email with a link to a youtube video; both the emailed message and the linked video compared one of the individual plaintiffs to Adolf Hitler and other dictators.

The same day, the hospital intranet was invaded by someone using a different IP address, 70.21.xxx.yy. Plaintiffs allege that, on October 19, 2009, John Doe Two, an anonymous hacker using the IP address 72.94.xxx.yyy, accessed the hospital's website and unlawfully and without permission logged onto an employee's mailbox. 

John Doe Two composed and sent an email to all hospital employees accusing more than one of the individual plaintiffs of sexual misconduct and other wrongdoing.

Warren Hospital, et al. v. John Does 1-10, supra.  (In a footnote, the appellate court notes that it has “concealed” the IP addresses mentioned in the opinion.) 

As to the legal claims the plaintiffs are pursuing they alleged the statements noted above were “defamatory or otherwise tortious.” Warren Hospital, et al. v. John Does 1-10, supra. The legal viability of their claims are not, however, what is at issue in this opinion. 

As it notes, after they filed their complaint the plaintiffs had to serve it on the defendants for the court to have personal jurisdiction over them.  This is usually not a problem, since plaintiffs normally know the identities, and location, of those  they are suing.  Here, of course, these plaintiffs do not know who was responsible for the emails and video noted above, which obviously is a problem for them.

As Wikipedia notes, to deal with situations like this, courts have allowed plaintiffs to name fictitious – or “John Doe” – defendants in their initial complaints, on the premise that they will file amended complaints that correctly identify the defendants, once they have that information. 

That is clearly what the plaintiffs in this suit did in filing their initial complaint.  As this opinion explains, in order to “obtain information about the true identity of the fictitious defendants,” the plaintiffs then “served subpoenas on four ISPs.”  Warren Hospital, et al. v. John Does 1-10, supra.  

That effort was frustrated when “[c]urrent Current counsel for one or more anonymous but unidentified respondents was given notice of the subpoenas and moved to quash.”  Warren Hospital, et al. v. John Does 1-10, supra.  (As this site explains, a motion to quash a subpoena asks the court that issues it to void, or nullify, the subpoena because there are good reasons why it should not be enforced.)

The opinion notes that

[b]y the time the motion was heard, only the subpoena served on one of the ISPs, Verizon Communications, remained active. On February 27, 2012, the trial judge granted the motion to quash for reasons expressed in a written opinion.

Warren Hospital, et al. v. John Does 1-10, supra.  I do not know if the first comment means the other ISPs had already complied with the subpoenas that were served on them or that those subpoenas had somehow lapsed or been quashed.  The opinion simply says the appellate court then granted the plaintiffs’ “motion for leave to appeal” that order.  Warren Hospital, et al. v. John Does 1-10, supra. 

The Superior Court of New Jersey – Appellate Division began its analysis of the parties’ respective arguments by explaining that the Internet’s

rapid, expansive and inexpensive means of communication permit anyone to `become a modern-day muckraker, exposing scandal and speaking out against fraud from the safety of [a] computer.’ Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320 (2008). . . .  But a click of the mouse may also instantaneously send defamatory messages to a wide audience, causing great harm to the reputation of others.

To the extent these speakers choose to remain hidden behind their computers, difficulties are posed for injured individuals who seek redress. As a result, we have minimized ‘”the traditional reluctance”’ for permitting filings against fictitious defendants and held that “’the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a forum in which they may seek redress for grievances.”’ Dendrite Int’l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (2001) (quoting Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 (U.S. District Court for the Northern District of Illinois 1999).

Warren Hospital, et al. v. John Does 1-10, supra. 

The court also, though, noted that this

salutary flexibility . . . must be weighed against competing constitutional interests. The 1st Amendment extends its protection to speech that is uttered anonymously, Talley v. California, 362 U.S. 60 (1960) . . . and disseminated through the Internet, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).  

 And Article I, paragraph 6 of our state constitution is understood as providing an even broader right of free speech than recognized by the 1st Amendment by protecting speech `”not only from abridgment by government, but also from unreasonably restrictive and oppressive conduct by private entities.”’ N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 650 A.2d 757 (New Jersey Supreme Court 1994). . . . 

[I]n offering a forum for those aggrieved by anonymous defamatory statements, particular care must be taken to prevent the suppression of criticism or the flow of legitimate speech.  See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  In crafting an appropriate remedy, courts must sail between the Scylla of unmasking those who have said nothing actionable, leaving them vulnerable to powerful and vindictive plaintiffs with the ability to `seek revenge or retribution,’ Doe No. 1 v. Cahill, 884 A.2d 451 (Delaware Supreme Court 2005), and . . . the Charybdis of permitting anonymity to become an impenetrable shield, leaving a defamed plaintiff without a remedy.

Warren Hospital, et al. v. John Does 1-10, supra. 

The appellate court then explained that in Dendrite Int’l, Inc. v. Doe No. 3, supra,

we adopted a four-part test for determining whether and to what extent a plaintiff may obtain discovery designed to ascertain the identity of persons posting messages on an ISP message board. Dendrite Int’l, Inc. v. Doe No. 3, supra. [It] . . . was designed to ensure that the authorization of discovery into an anonymous speaker's identity `”will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service and will prevent use of this method to harass or intimidate.’” Dendrite Int’l, Inc. v. Doe No. 3, supra (quoting Columbia Ins. Co. v. seescandy.com, supra ). . . .

Warren Hospital, et al. v. John Does 1-10, supra. 

Under the Dendrite test, a plaintiff who claimed to have been injured by an

anonymous or pseudonymous statement on an ISP message board, must: (1) identify the fictitious defendant with `sufficient specificity’ to allow for a determination as to whether the defendant `is a real person or entity’ who may be sued; (2) demonstrate a `good-faith effort to comply with the requirements of service of process’; (3) present sufficient facts from which it may be concluded that the suit can withstand a motion to dismiss; and (4) provide `a request for discovery with the [c]ourt, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible.’ Dendrite Int’l, Inc. v. Doe No. 3, supra (quoting Columbia Ins. Co. v. seescandy.com, supra ).

Warren Hospital, et al. v. John Does 1-10, supra. 

This court, though, found the circumstances in this case “are quite different from those that generated the” Dendrite test.  Warren Hospital, et al. v. John Does 1-10, supra. It explained that, unlike the facts at issue in Dendrite, in this case it was not considering

the anonymity of individuals posting statements on a public Internet message board. Plaintiffs have presented sufficient facts from which we may assume that what John Does One and Two did electronically was no different than if they had broken into the hospital and spray painted their messages on the hospital's walls. 

We reject the argument that those who engage in this type of conduct are entitled to cling to their anonymity through a strict or overly-formulaic application of the Dendrite test.

Warren Hospital, et al. v. John Does 1-10, supra. 

The court also noted that it was “satisfied” that the plaintiffs were entitled to pursue

discovery from Verizon or any other ISP to the extent the discovery might reasonably reveal the identity of those who used IP addresses 75.126.xx.yyy, 70.21.xxx.yy, or 72.94.xxx.yyy, or information reasonably designed to lead to other discoverable information. It is enough that plaintiffs have demonstrated (1) the speakers' unlawful or impermissible mode of communication, and (2) that the allegedly defamatory statements would survive a motion to dismiss.

Warren Hospital, et al. v. John Does 1-10, supra. 

It also noted that, as to the third Dendrite factor, it was “satisfied” that a defamation claim

based on the August 17 and October 19, 2008 allegations would survive a motion to dismiss. Plaintiffs assert the statements are false and harmful to their reputations because [they] tend to `lower[ ] the defamed person in the estimation of the community or deter third parties from dealing with that person.’ Salzano v. N. Jersey Media Group Inc., 201 N.J. 500, 993 A.2d 778 (New Jersey Supreme Court 2010). 

On a motion to dismiss, the court would be required to give the words in question the `fair and natural meaning which will be given [to them] by reasonable persons of ordinary intelligence.’ Romaine v. Kallinger, 109 N.J. 282, 537 A.2d 284 (New Jersey Supreme Court 1988) (quoting Herrmann v. Newark Morning Ledger Co.,48 N.J.Super. 420, 138 A.2d 61 (Superior Court of New Jersey – Appellate Division (1958)). 

The statements, which we have not quoted in order to avoid their further dissemination, would survive a motion to dismiss on the record now before us.

Warren Hospital, et al. v. John Does 1-10, supra. 

Finally, the court noted that the John Doe defendants who had hired the attorney who moved to quash the subpoena were “troubled” that the discovery it was authorizing

may provide insight into the identities of some of those who made other anonymous statements referred to in the amended complaint. We find that to be of little concern. If the discovery we permit reveals John Does One and Two also uttered other statements in less wrongful or even completely innocent ways -- or the revelation of their true identities may lead to a discovery of the identities of other anonymous speakers – then that is a consequence of John Doe One and John Doe Two's alleged wrongdoing. 

Having made a showing we find sufficient for the discovery in question, plaintiffs should not be thwarted by the speculative consequence that other identities may be revealed.

Warren Hospital, et al. v. John Does 1-10, supra. 

It therefore reversed the trial judge’s order quashing the subpoena and remanded the case for further proceedings.  Warren Hospital, et al. v. John Does 1-10, supra. For a little more about the facts in the case, check out the news story you can find here.

Privacy, Discovery and Social Media

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This post examines an opinion the New York Supreme Court – Richmond County issued in a civil case:  Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (New York Supreme Court - Richmond County 2013).  The case involves a suit to

recover for personal injuries allegedly sustained by the plaintiff, John Fawcett, Jr., a high school student during an altercation with the defendant, Nicholas Altieri, another high school student, at a tennis match at St. Joseph By the Sea High School, in Staten Island, New York.

Fawcett v. Altieri, supra.  The defendants are Nicholas Altieri, his parents Gerald L. and Laura M. Altieri and St. Joseph by the Sea High School.  Fawcett v. Altieri, supra. 

The opinion notes that the plaintiff’s complaint “sets forth causes of action against the defendants for assault, battery, negligence and loss of services” and alleges that John Fawcett, Jr. “sustained an injury to his right eye” in the altercation alleged in the complaint.  Fawcett v. Altieri, supra.  In this opinion, the court is ruling on a dispute about discovery, which, as Wikipedia explains, is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. 

You can, if you are interested, find a summary of New York discovery law here.

The issue the court is dealing with arose when the defendants moved “to compel the production of the social media files of the plaintiff, John Fawcett, Jr.” and Fawcett, the plaintiff, “cross-move[d] for a protective order preventing the production of his social media files.”  Fawcett v. Altieri, supra.  More precisely, the defendants demanded

`. . . authorizations to permit the defendants to obtain full access to and copies of Plaintiff's current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.’

Defendants contend that the plaintiff's social media accounts are not publically viewable and they have been made private with no information available for public consumption. It is unclear when the plaintiff made his social media accounts private.

Fawcett v. Altieri, supra (quoting Defendants’ motion).

The Supreme Court began its opinion by noting that the parties’ motions required it to

evaluate the relevance of social media accounts in the pre-trial discovery phase of a civil action alleging personal injuries. While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words “material and necessary” in New York Civil Practice Law and Rules [CPLR] § 3101(a) remains applicable.

Fawcett v. Altieri, supra. 

CPLR § 3101(a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by various enumerated categories of parties to the suit, witnesses and others with material evidence, experts, etc.  In the rest of the passage quoted above, the Supreme Court explained that the

liberal interpretation of the words `material and necessary’ require disclosure, upon request, of any facts bearing on the controversy that will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party. . .

Fawcett v. Altieri, supra. 

The court also noted that it

is without dispute that plaintiffs, who place their physical condition in controversy may not shield from disclosure material, which is necessary for the defense of the action  It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but also to damages as well.

Fawcett v. Altieri, supra. 

The Supreme Court then noted that, as to the law specifically applicable to the issue raised by this case, a survey of relevant New York cases

dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. 

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is `material and necessary;’ and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights.

Fawcett v. Altieri, supra. 

The court began with the issue of whether the information was “material and necessary”:

Setting aside the fact that John Fawcett, Jr. turned eighteen years old, the plaintiff submits the affidavit of his mother Gina Fawcett to support his cross-motion. In her affidavit she states that her son, `. . . stated . . . that he has no specific memory of using, discussing this attack, or his injury using social media.’ 

Furthermore, plaintiff's counsel argues that access to the plaintiff's social media accounts sought by the defendants are not relevant to mount a defense against an allegation of civil assault battery or negligence.

However, to accept such an argument would ignore the defendants' right to seek discovery relating to the damages John Fawcett, Jr. sustained as a result of this altercation. Plaintiff's bill of particulars states that the injuries he sustained as a result of this incident will continue to affect him socially, educationally, economically, and in the way he pursues recreation into the future.

Fawcett v. Altieri, supra. 

The Supreme Court noted that the New York Supreme Court –Appellate Division

allows for broad discovery on the issue of damages where a plaintiff states a general loss of the enjoyment of life due to injuries sustained as a result of an accident. . . . However, at this early stage in litigation it is unclear as to whether this information will yield `material and necessary’ information, or . . . is merely a fishing expedition as the plaintiff suggests.

Fawcett v. Altieri, supra. 

It then explained that

[s]ocial media web sites, such as Facebook and Twitter, exist to allow individuals to interact with `real world’ friends, relatives and those individuals sharing common interests that may be as close as your own town, or as far away as a distant continent. 

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet.

Whether these broadcasts take the form of `tweets,’ or postings to a user's `wall,’ the intent of the users is to disseminate this information. Judge Matthew Sciarrino pointed out in his decision concerning an `Occupy Wall Street’ protestor charged in the Criminal Court of New York County that, `[i]f you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.’

Fawcett v. Altieri, supra (quoting People v. Harris, 36 Misc.3d 868, 949 N.Y.S.2d 590 (Criminal Court, City of New York, New York County 2012)).

The Supreme Court pointed out that “[a]t the end of 2009 Facebook reset user privacy settings to default all profiles to public from private”, but that “these privacy settings did not prevent the president of the Queer Chorus at the University of Texas to add these two students to a Facebook discussion group which `outed’ them to all of their Facebook friends, regardless of the pre-set privacy settings.” Fawcett v. Altieri, supra. 

Having made that observation, the court explained that the New York Supreme Court – Appellate Division held in Patterson v. Turner Construction Company, 88 A.D.3d 617, 931 N.Y.S.2d 311 (2011) that materials posted on a Facebook page would not be

shielded from discovery in a civil matter `. . . merely because plaintiff used the service's privacy settings to restrict access . . .’ if the material is relevant to the litigation. These materials may be subject to production just as material from a personal diary may be discoverable.

While the ultimate privacy and subsequent disclosure of social media postings are disputable, the facts in this case are not developed to either compel or preclude their discovery. There must be a clear factual predicate in order to compel the production of social media records from the defendants or authorizations for the production of that material from certain social media providers.

Consequently, on the facts before this court depositions must be conducted before one can properly determine whether the plaintiff should be compelled to produce social media records; and conversely, whether the defendants should be precluded from accessing this information.

Fawcett v. Altieri, supra. 

The Supreme Court concluded by noting that information posted on social media

accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. . . .

[T]o obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. 

The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.

Fawcett v. Altieri, supra.  It therefore denied the defendants’ motion to compel the production of the plaintiff’s “social media files”.  Fawcett v. Altieri, supra. 

Harassment, Emails and the Passionate Fan

In 2011, Paul Michael Glaser obtained a six-month civil harassment restraining order under California Code of Civil Procedure § 527.6 against Pamela Meserve. Glaser v. Meserve, 2013 WL 1460339 (California Court of Appeals 2013). When that order expired and Meserve “resumed her harassment,” he “obtained a three-year injunction” against her, after which Meserve “appealed the second order.  Glaser v. Meserve, supra.

According to this opinion, Glaser “was an actor on the 1970's television show Starsky and Hutch”, after which “he became a director and later an author.” Glaser v. Meserve, supra. At some point in 2000, Meserve approached Glaser to see if he was interested

in a Web site she had developed for him, and he agreed she could maintain it. Over time, he communicated with her about the Web site, seeking her assistance in handling fan mail. She also began sending gifts to Glaser. [Meserve] was living in the Boston area and Glaser thanked her for the gifts by telephone, thinking of her as a passionate fan.

In 2008, [Meserve] flew to London to see Glaser in a play and attended over 20 performances. Also in 2008, [she] moved from Boston to the same Venice neighborhood to which Glaser had recently relocated. She constantly appeared in front of his apartment, and though Glaser's children questioned her behavior, Glaser tried to remain friendly with her.

At about the same time, Glaser decided to self-publish his first book, Chrystallia, and asked [Meserve] for her assistance. As early as 2007, [she] had been providing Glaser with editorial comments on the book. Glaser offered to compensate [Meserve] for her time on publishing, and according to [her], she was to receive five percent of the royalties generated from book sales. 

According to Glaser, after working with [Meserve] for approximately six to nine months, he realized his self-publishing efforts were not going to work. He retained professionals, who after two meetings with [her] said they would be unable to work with her, as her behavior disturbed them. Glaser terminated her, but told her he would compensate her for her time once the book made a profit.

[Meserve] continued to contact Glaser and his friends and colleagues, and ultimately moved in with [his] next-door neighbor. She would sit on the stairs opposite Glaser's kitchen door while working on her computer. And at some point she lived only in her car, parked near Glaser's home.

By early 2011, Glaser's e-mail communications to [Meserve] were focused on efforts to get control of the Web sites that she had been managing, offering to pay her for the rights, while [her] e-mails were focused on efforts to mend the parties' relationship.

Glaser v. Meserve, supra.

Glaser applied for the harassment restraining order on April 15, 2011, on the grounds that Meserve “had been continuously lurking near his home, following him and excessively e-mailing him.” Glaser v. Meserve, supra. In a letter attached as support for the order, Glaser said Meserve “`exhibits both a rational and very irrational side and has continued to impose herself on me and my life despite my requests for her to desist.’” Glaser v. Meserve, supra.  Meserve “objected to the application and wrote a letter to the court in opposition, attaching two letters of recommendation from Glaser and a number of e-mail exchanges between” them.  Glaser v. Meserve, supra.

At a May 5, 2011 hearing on his application for the order, Glaser testified that after he

terminated her, she kept showing up in his neighborhood and approaching visitors to his home, sometimes leaving notes on their cars and sometimes pleading her case in person. He was also concerned that [she] had moved into the apartment just behind his, despite his requests to stay away. He stated that although [Meserve] had not made any threats that would lead him to fear for his physical safety, he did fear for his safety as a result of her irrational behavior.

Glaser v. Meserve, supra.  

The judge issued a restraining order that was effective for six months and required Meserve “to refrain from harassing, threatening, following or stalking Glaser, and directed that she not contact him by telephone, message, mail or e-mail.” Glaser v. Meserve, supra. It also required that she “stay at least 20 feet away from [him] and his home and vehicle” and barred her from owning, possessing or purchasing a firearm, and requiring her to turn in any firearm in her possession or control.” Glaser v. Meserve, supra.   Meserve did not appeal the order. Glaser v. Meserve, supra.

Glaser applied for a second restraining order on January 25, 2012. Glaser v. Meserve, supra. In his application, he said that Meserve had resumed

calling him and e-mailing him constantly; that she walked where he was walking, sometimes circling back just to interact with him; and that she blogged on his Facebook and Twitter accounts, representing herself as his `liaison.’ He attached some of her recent e-mails. He sought a three-year restraining order and asked that [she] be ordered to keep at least 100 yards away from him, his family and certain business colleagues.

Glaser v. Meserve, supra. This time, Meserve objected to the order and “denied there was a factual basis for it.”  Glaser v. Meserve, supra.

Meserve and Glaser testified at a February 8, 2012 hearing on the application. Glaser v. Meserve, supra.  “At that point,” she still lived in Glaser's neighborhood “in an apartment about 400 yards from his apartment.” Glaser v. Meserve, supra. Glaser testified that while he asked Meserve to leave him alone, “`she continues to call me, e-mail me, repeating, repeating constantly to read the e-mails. It's kind of bizarre. It's like, you know, “I'll never stop. I'll never stop e-mailing you no matter what. And I will do this because this is my calling. This is what I'm about.”’” Glaser v. Meserve, supra. Meserve “offered various explanations for each time she contacted or attempted to contact Glaser and his family and friends” and “denied she was pursuing him.”  Glaser v. Meserve, supra.

At the end of the hearing, the judge “issued a three-year restraining order” commenting that Meserve “had contacted Glaser excessively, even after he asked her not to,” and said he “understood why Glaser was concerned.” Glaser v. Meserve, supra. The judge told Meserve,

`[e]ven though you yourself may not appreciate how your conduct appears to others, I will tell you from an objective point of view, it appears excessive. And I am concerned with the fact that you specifically started when the first restraining order ended and you stopped as soon as you were served with this. So even though you say you can control yourself, I'm not confident that you can.’

Glaser v. Meserve, supra.  The order prevented Meserve “from contacting Glaser directly or indirectly, either in person, by telephone, by any electronic communication or through social media.”  Glaser v. Meserve, supra. 

In appealing the second order, Meserve argued that it “was not supported by substantial evidence.”  Glaser v. Meserve, supra.  The Court of Appeals began its analysis of her argument by noting that California Code of Civil Procedure § 527.6

was designed to supplement existing law by providing an expedited procedure to harassment victims and was `enacted to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’” Grant v. Clampitt, 56 Cal.App.4th 586, 65 Cal.Rptr.2d 727 (California Court of Appeals 1997).

Glaser v. Meserve, supra. 

The court also explained that California Code of Civil Procedure § 527.6(b)(3) defines

`harassment’ as `unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a person that seriously alarms, annoys, or harasses the person and 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. . . .’ 

Subdivision (b)(1) defines `course of conduct’ 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, . . . or sending harassing correspondence to an individual by any means. . . .’ (California Code of Civil Procedure § 527.6(b)(1))

Glaser v. Meserve, supra. 

The court then addressed the issues raised in this appeal, noting, first that to support the

“issuance of an injunction” under these standards, Glaser “was required to show that [Meserve] had engaged in a course of conduct constituting harassment that would both cause a reasonable person and actually caused him to suffer substantial emotional distress.”  Glaser v. Meserve, supra. 

It found, first, that the evidence showed Meserve engaged in a course of conduct that

both annoyed and harassed Glaser, and served no legitimate purpose. Even assuming [Meserve] had a legitimate basis to contact Glaser while she was working with him on his book, . . . by January 2011 the parties no longer had a working relationship. Nonetheless, [she] continued to e-mail and call Glaser, to walk by his home and to approach him in person, even though he told her he wanted nothing to do with her. There was sufficient evidence to show that her contact had no legitimate purpose.

For example, in a January 2011 e-mail [Meserve] wrote: `I am NOT letting GO. I AM NOT forget [t]ing and I will not let YOU forget either . . . no sir . . . no more BS from you. I LOVED YOU. It is not a terrible thing!’ In April 2011 [she] wrote: “I loved you Paul . . . I trusted and believed everything, every word you shared and promised me . . . I can't let go or forget that. Why can't you understand this? I need to know why!’

And after the first restraining order expired, [Meserve] wrote in a January 2012 e-mail, `Paul . . . don't you think that maybe fate brought us together? Or maybe in our next life, when we meet again, we will really know that the reason we ARE here IS to help each other . . . to appreciate the gift of each other, what we can learn from each other and teach [each] other with open kindness, understanding and compassion. . . .’

Glaser v. Meserve, supra. 

The Court of Appeals also found that the evidence was sufficient to show that Meserve’s

harassment would cause a reasonable person to suffer substantial emotional distress. [Her] conduct was akin to that of the defendant in R.D. v. P.M., 202 Cal.App.4th 181, 135 Cal.Rptr.3d 791 (California Court of Appeals 2011). There, the court found substantial evidence supported the conclusion that a reasonable person would have suffered substantial emotional distress as a result of the defendant's unwanted contacts with the plaintiff spanning almost one year. . . .

The defendant . . . engaged in conduct including confronting the plaintiff at a local market, posting negative consumer reviews on the Internet and distributing flyers with disparaging messages about the plaintiff, and engaging in volunteer activities at the plaintiff's children's schools. . . . 

Here, beyond her unwanted contact with Glaser, [Meserve] similarly blogged on Glaser's Facebook and Twitter Web sites, contacted his children and volunteered for a foundation he founded on behalf of his deceased wife. Correspondingly, this evidence supported the conclusion that Glaser had suffered substantial emotional distress. . . .

Glaser v. Meserve, supra. 

Meserve then claimed “there was insufficient evidence to show that her actions caused substantial emotional distress, either objectively or subjectively.”  Glaser v. Meserve, supra.  The court explained that “emotional distress” is “generally understood” to

include, among other emotions, fright, nervousness, anxiety, humiliation and worry. . . . `Section 527.6 does not define the phrase ‘substantial emotional distress.’ However, in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase ‘severe emotional distress' means highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it.’ (Schild v. Rubin, 232 Cal.App.3d 755, 283 Cal.Rptr. 533 (California Court of Appeals 1999)).

Glaser v. Meserve, supra. 

The court also noted that, in entering the restraining order, the trial judge 

explained to [Meserve] that she had `really gone overboard and beyond the pale. And I understand why Mr. Glaser is concerned.’ Substantial evidence supported the trial court's conclusion that Glaser should not have been expected to endure [Meserve’s] excessive and accusatory e-mails, unwanted personal contact and irrational behavior.

Glaser v. Meserve, supra. 

And the Court of Appeals explained that “substantial evidence” also showed that Glaser

suffered substantial emotional distress. Evidence satisfying the subjective prong of § 527.6 may be circumstantial. . . . Ensworth v. Mullvain, 224 Cal.App.3d 1105, 274 Cal.Rptr. 447 (California Court of Appeals 1990). . . . [T]he Ensworth court rejected the proposition that direct testimony is required to establish that a plaintiff actually suffered substantial emotional distress; it found sufficient the plaintiff's testimony that the defendant followed and spied on her, repeatedly drove around her house, made numerous phone calls and sent threatening letters, and contacted other professionals in the community in an effort to harm the plaintiff's reputation. Ensworth v. Mullvain, supra.

Here, in addition to testifying about [Meserve’s] conduct, Glaser testified at the first hearing that he had gotten to the point where he could not control or manage [her] behavior and that, because of her irrational behavior, `I fear for my safety.’ At the second hearing, he reiterated that he did not believe [she] was able to stop herself from contacting him, and he felt as if he were being pursued.

He worried that if [Meserve] was incessantly e-mailing, calling and approaching him, he did not know whether she was capable of more. Any further evidence on the point would have been cumulative. . . .

Glaser v. Meserve, supra. 

The Court of Appeals therefore held that the order was supported by substantial evidence.  Glaser v. Meserve, supra.  It also found that Glaser had shown there was “sufficient evidence of a threat of continued harassing harm” to support to entry of another restraining order.  Glaser v. Meserve, supra.  It noted, among other things, that the trial judge “repeatedly pointed out that [Meserve] had demonstrated she was unable to control herself in the absence of a court order.”  Glaser v. Meserve, supra. 

For these and other reasons, the Court of Appeals affirmed entry of the second restraining order.  Glaser v. Meserve, supra.  The  story you can find here adds some comments about this case.