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David Falossi v. Fritz Koenig

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 argued that these postings violated the existing harassment injunction.

Koenig filed a written opposition to the application in which he argued, among other things, that the postings were protected speech under the First Amendment.

At a hearing on February 24, 2010, the trial court issued an OSC and set a trial date. Previously, Koenig had voluntarily stipulated not to post anything concerning the Falossis on the internet until the hearing on February 24. He was willing to keep this stipulation in effect until the trial date. Falossi, however, asked the trial court additionally to order Koenig to remove the existing postings. Koenig objected that this violated his freedom of speech. The trial court nevertheless orally ordered Koenig "to take down temporarily all references to the Falossi children." It added, "And that is temporary until we have the trial."*fn1

On March 2, 2010, the trial court signed and entered a formal written order*fn2 that Koenig:

"1) Not post any content on the internet that mentions any member of the Falossi family, either directly or indirectly, nor ask anyone as your agent to post such material.

"2) Remove all existing content on the internet that you have posted or caused to have posted that refers to any member of the Falossi family, either directly or indirectly . . . ."

Also on March 2, 2010, Koenig filed a notice of appeal.

The parties concur that in August 2010 the contempt proceeding was dismissed without prejudice.

II

MOOTNESS

Falossi does not respond to Koenig's arguments on the merits. He argues only that, because the contempt proceeding has been dismissed, the appeal is moot. We agree.

An order granting a preliminary injunction ordinarily becomes moot if the underlying action has dismissed. (See Reid v. State of California (1961) 193 Cal.App.2d 799, 805.)

The trial court expressly indicated that its oral order was intended to be effective only temporarily, until the contempt proceeding could be heard on the merits. Admittedly, its subsequent written order, unlike its oral order, was not expressly time-limited. Nevertheless, it is clear that that is what the trial court intended. The lack of an express time limitation is merely a clerical error, which we may correct in this appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

Koenig has not argued that any exception to the general rule of mootness applies. He merely argues that he is still "potential[ly]" subject to contempt proceedings arising out of any violations of the challenged order during the time that it was in effect. It does not appear, however, that there were any such violations. Moreover, because Falossi is affirmatively arguing that the appeal is moot, judicial estoppel should preclude him from bringing any such contempt proceedings. (See generally MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422-423.)

Koenig also asserts that, when the trial court dismissed the case, it said something about the order appealed from, but he does not know what. He adds, "If after ascertaining the facts and their relevancy to the present appeal, [a]ppellant may request . . . augmentation . . . ." However, he has made no timely augmentation request.

In sum, then, on this record, it does not appear that the challenged order can have any further effect. Thus, it is moot.

III

DISPOSITION

The appeal is dismissed as moot. In the interest of justice (see Cal. Rules of Court, rule 8.278(a)(5)), Koenig is awarded costs on appeal against Falossi.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: McKINSTER Acting P.J. MILLER J.


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