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David Falossi v. Fritz Koenig

December 29, 2010

DAVID FALOSSI, PLAINTIFF AND RESPONDENT,
v.
FRITZ KOENIG, DEFENDANT AND APPELLANT.



(Super.Ct.No. CIVMS900013) APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Dismissed.

The opinion of the court was delivered by: Richli J.

Falossi v. Koenig CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Respondent David Falossi obtained a harassment injunction against appellant Fritz Koenig. Falossi then initiated a contempt proceeding against Koenig, claiming, among other things, that certain internet postings by Koenig discussing Falossi, his family, and the case violated the injunction. The trial court ordered Koenig: (1) "[n]ot [to] post any content on the internet that mentions any member of the Falossi family," and (2) to "[r]emove all existing content on the internet that you have posted . . . that refers to any member of the Falossi family . . . ." Koenig appealed. While the appeal was pending, the contempt proceeding was dismissed.

Koenig contends, among other things, that:

1. The order violates the First Amendment.

2. The trial court lacked jurisdiction because Koenig had not been arraigned on the contempt citation and had not been served with an order to show cause (OSC).

We conclude, however, that the order was effective only temporarily, pending a trial in the contempt proceeding. Because the contempt proceeding has been dismissed, the appeal is moot.

I

FACTUAL AND PROCEDURAL BACKGROUND

In January 2009, Falossi filed a petition for a harassment injunction against Koenig. In May 2009, after an evidentiary hearing, the trial court granted a permanent injunction prohibiting Koenig from harassing Falossi and his family members. (Code Civ. Proc., § 527.6.) The injunction provided, among other things, that Koenig was not to do any of the following to the Falossis: (1) "Harass [or] threaten"; (2) "Contact (directly or indirectly), telephone, send messages, mail or e-mail."

In January 2010, Falossi filed an application for an OSC re contempt. In support of the application, Falossi introduced evidence that Koenig had made postings to several websites in which he discussed the Falossis as well as the underlying litigation. Falossi ...


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