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Court of Appeal:
Attorney’s Conduct Was Annoying but Not Harassment
Lawyer’s Treatment of Other Practitioner Did Not Rise to Level Justifying Permanent Restraining Order
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal held yesterday that “annoying” behavior by one attorney toward another does not justify the issuance of a permanent restraining order despite the aggressive nature of the behavior and the defendant’s violation of an earlier temporary order.
The appellate court found that the governing statute requires that the behavior be “seriously annoying” to support a petition for a permanent restraining order and found no abuse of discretion in the trial court’s determination that the behavior did not rise to that threshold.
Justice Carol D. Codrington wrote the unpublished opinion affirming the denial of the restraining order by Riverside Superior Court Commissioner Belinda A. Handy. Presiding Justice Manuel A. Ramirez and Justice Michael J. Raphael joined in the opinion.
Appealing the denial was Dawn Saenz, who sought to restrain Patrick D. Martinez after multiple hostile interactions. The two Riverside-based attorneys met for the first time on Sept. 1, 2022 in the Riverside Superior Court building, where they were appearing on separate matters.
Hostile Interactions
According to Saenz, while she was conferring with opposing counsel on her case, Martinez yelled that Saenz “always gives bad advice” and glared at her. She later approached him to ask that he leave her alone and “used profanity to get her point across,” which caused Martinez to become more aggressive.
Saenz claims that she encountered him two more times at the courthouse in October when he again screamed at her and followed her. She alleges that in early November 2022, he showed up at her law office unannounced, rushing in and yelling at the officer manager, “Tell Ms. Saenz I will be seeing her soon” before slamming the door on his way out.
Saenz filed a request for a restraining order the day after he came to her office. Based on the supporting declaration, the court issued a temporary restraining order (“TRO”), prohibiting Martinez from contacting Saenz and being within 100 yards of her.
The order was subsequently modified to allow Martinez to make court appearances so long as he tried to avoid contact.
Saenz served the TRO on Martinez on Nov. 7, 2022. Fifteen minutes after he was served, Martinez called her office and private cell phone, leaving a voicemail.
Restraining Order Proceedings
Handy held a multi-day hearing on Saenz’s request for a permanent restraining order in early 2023. Several witnesses testified, including the parties.
The commissioner did not believe Martinez’s contention that he did not know that he had been served, and found that Martinez had violated the TRO by calling Saenz.
She noted that Martinez’s behavior had been “annoying” and that Saenz had “every reason to file” the TRO petition. Handy said that Martinez had “skirted the line” and was “milliseconds away from getting a restraining order” filed against him, remarking that his “lack of credibility” was “atrocious” and out-of-step with his role as an officer of the court.
However, the judicial officer found that his “disappointing” behavior did not “rise to the level” of warranting a permanent restraining order and denied the request.
Handy warned Martinez, saying he was “clearly on notice” that his conduct was unacceptable and there may be consequences in the future.
Statutory Authority
Code of Civil Procedure §527.6(a)(1) provides that “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.”
Subdivision (b)(3), in turn, defines harassment as “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.”
Saenz argues that the trial court erred because it found Martinez’s behavior was “annoying,” which constitutes harassment for purposes of a permanent restraining order.
Codrington disagreed, saying that “[a]t a minimum, Martinez’s behavior had to be ‘seriously’ annoying for it to qualify as harassment” and “Saenz does not cite, nor can we find, any authority that suggests merely ‘annoying’ behavior suffices.”
Looking to the facts before her, the jurist said:
“The trial court here found that Martinez’s behavior was only ‘annoying,’ but did not rise to the level of harassment. In other words, the court found that his conduct was not ‘seriously’ annoying.”
Likely to Recur
Saenz also argues that the court should have issued the permanent order because Martinez’s harassment is likely to recur. Unpersuaded, Codrington said that “because the court found Martinez’s behavior was not harassment under section 527.6, the court had no need to determine whether Martinez’s behavior was likely to recur or should be restrained in the future.”
Noting that the standard of review was “highly deferential,” she said:
“Saenz’s evidence was not so overwhelming that the trial court had to grant her a restraining order against Martinez as a matter of law….[T]here was room for interpretation of the evidence and reasonable disagreement. We therefore cannot disturb the trial court’s ruling.”
Martinez Comments
Marinez commented yesterday:
“The court made a proper ruling. This was a restraining order that was filed to prevent me, an attorney, from being counsel on a case. Ms. Saenz did not want to have to litigate a case with me as opposing counsel. The temporary restraining order should have never been granted to begin with as the alleged incidents were relating to constitutionally protected activity, working on a case.
“Historically, Ms. Saenz has issues with lots of attorneys in the Riverside area. It is very odd that Ms. Saenz would have filed this TRO when she expressly told another attorney that attorneys should NOT be filing restraining orders against other attorneys.
“When I read the appeal, I knew that it would not prevail. This has been a big delay by Ms. Saenz. The underlying facts were also not true as alleged by Ms. Saenz. An abuse of process and/or malicious prosecution against Ms. Saenz is in the works.”
Saenz’s lawyer, Joshua Hanks, had only this to say:
“We are disappointed by the appellate court opinion.”
The case is Saenz v. Martinez, E081471.
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