I offer this partly as a public service for those who have wondered, like most attorneys probably have at some point, just how annoying they could be without going over the line. Although the line here is the one that might get you subject to a restraining order if you pass it, so hopefully your imagination stopped well short of that line.
On July 1, the California Court of Appeal affirmed the decision not to issue a restraining order in Saenz v. Martinez, holding that although there was no dispute Martinez had been “annoying,” he had not been so annoying that a restraining order was mandatory under California law (as Saenz argued on appeal). Because the law didn’t require a restraining order, the Court of Appeal deferred to the lower court’s finding.
This case involved a months-long dispute between two attorneys who both practice in Riverside County Superior Court. The opinion’s summary of facts is about five pages long, and the court said this was “only a brief recitation” of what occurred. One possible effect of the brevity is that the opinion doesn’t make clear how all this started. In August 2022, it says, Saenz’s staff called opposing counsel to schedule a deposition, whereupon Martinez “took over the call” and started yelling. Lawyers do that sometimes, but the weird thing here is that Martinez was not opposing counsel in that case. The opinion says he “shared office space” with that lawyer at the time, not that they were co-counsel, so it’s not clear why he was on the call to begin with. Also, it says Saenz and Martinez had never even met at that time, so it’s not clear what prompted the yelling. But allegedly, he did this twice more in the following weeks.
I should mention, as the court does, that all these facts came from Saenz’s testimony “because the trial court found her credible while finding almost all of Martinez’s evidence not credible.”
Saenz and Martinez met for the first time on September 1, 2022, when they were in the Riverside courthouse for unrelated matters. According to the opinion, while Saenz was talking to opposing counsel in her case, “Martinez yelled that Saenz ‘always gives bad advice'” and then proceeded to glare at her. This is a strange thing to yell at someone you don’t know, especially when you’re not part of the conversation in the first place. But this is allegedly what happened.
These sorts of interactions continued during the next few weeks, both on the phone and in the courthouse. There was lots of “glaring” and “staring,” which you can often get away with in a courthouse, but also lots more yelling, which usually will draw a lot of attention. Some of the yelling allegedly involved “unintelligible things” delivered at high volume while smirking, which you might expect in a presidential debate or nomination speech but usually not at a courthouse. Finally, Martinez allegedly showed up at Saenz’s office to do some more yelling, which prompted her to seek a temporary restraining order. The court issued a TRO, and then held “a multi-day hearing” on whether to make it permanent. As noted, the court found Saenz credible but not Martinez, in fact saying he displayed an “atrocious” lack of credibility.
Still, it denied the request for a permanent restraining order. It was convinced that Martinez had been “annoying” and “did those things on purpose,” and said he was “milliseconds [sic] away from getting a restraining order granted against” him. But it found he had “skirted that line just enough” that an order wasn’t justified. His conduct was “unacceptable” and “disappointing” for an attorney (or maybe even for an attorney?), but “just didn’t rise to the level” that warranted a permanent order.
Saenz appealed, arguing that because the court found Martinez had been “annoying,” that was necessarily “harassing” conduct under California law. The Court of Appeal disagreed. It pointed out that the relevant statute 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.” Cal. Code Civ. Proc. § 527.6 (emphasis added). It followed that a finding Martinez had been “merely annoying,” as the opinion puts it, wasn’t enough.
As the opinion suggests, Saenz may have screwed up by arguing on appeal only that “annoying” necessarily meant “harassing,” instead of arguing “the trial court should have found that Martinez’s behavior was ‘seriously’ annoying” (emphasis added). Taking everything she said as true, as the court did, it sure seems like a reasonable person could find this to be seriously annoying. On the other hand, the trial court didn’t make that finding, and the standard on review is deferential. “Even assuming we may have found otherwise,” the Court of Appeal held, “there was room for interpretation of the evidence and reasonable disagreement.” Martinez thus got away with being something less than seriously annoying. Barely.
A Law360 article on this opinion quotes Martinez as saying that the court made the right call and claiming Saenz only sought the TRO because she “did not want to have to litigate a case with me as opposing counsel.” If Martinez disputed any of the facts about his not-quite-seriously-annoying conduct, though, Law360 didn’t publish that part of his comment. So the quoted statement might well be true, but maybe not in the way he means it.