anne bremer motion reply

8/4/2019 Anne Bremer motion reply

1/8

1

234567 SUPERIOR COURT OF WASHINGTONIN AND FOR PIERCE COUNTY8 CHARLES COX and JUDY COX, husband and9 wife, NO. 11-2-13049-110 Plaintiffs" REPLY TO PLAINTIFFS' MOTIONFOR PRELIMINARY INJUNCTIONv.

11 JOSHUA POWELL; STEVEN POWELL;ALINA POWELL; and MICHAEL POWELL,12Defendants.13

14 A. This Court should deny defendant's motion to shorten time.15 Plaintiffs served defendant with their Motion for Preliminary Injunction on August 31,16 2011. Declaration of Anne Bremner ii 2 ("Bremner Decl."). A note for motion was set for17 September 9, 2011. !d. On September 8, 2011, Mr. Lobsenz contacted plaintiffs' counsel to18 provide his notice of appearance. d. ii 3. Mr. Lobsenz also requested a continuance of the19 original September 9th hearing date. d. Out of courtesy to Mr. Lobsenz and his client, plaintiffs20 granted the continuance and reset the hearing for September 23,2011. d. iiii 3-4.21 On September 21, 2011, at approximately 12:00 p.m., Mr. Lobsenz served defendants22 with defendant Joshua Powell's motion to shorten time, defendant Joshua Powells motion to23 strike declaration of Charles Cox, defendant Joshua Powell's memorandum in opposition to

REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARYINJUNCTION - 111532-030894 810371x

STAFFORD FREY COOPERPROFESSIONAL CORPORATION601 Union Street Suite 3100

Seatte WA 98101.1374TEL 2066239900 FAX 2066246885

E-FILED

IN COUNTY CLERK'S OF

PIERCE COUNTY, WASHIN

September 22 2011 12:0

KEVIN STOCK

COUNTY CLERKNO: 11-2-13049-1


2/8

1 motion for preliminary injunction, and defendant Joshua Powell In Opposition to Plaintiffs2 Motion for Preliminary Injunction. Bremner Decl. ii 5.3 Although defendant was given a two-week extension and ample time to review and draft

4 a response to plaintiffs' motion for preliminary injunction, he waited until the last possible5 minute to serve plaintiffs with his motion to shorten time and motion to strike. This6 strategically-executed maneuver has prejudiced plaintiffs and wil limit their ability to reply if7 the motion to shorten time is granted. Additionally, defendant did not meet the notice

8 requirements under PCLR 7. PCLR 7(c)(2)(D) states that "the party requesting the Order to9 Shorten Time shall notify all opposing parties of the Motion to Shorten Time and the time and

10 location of its presentation." Mr. Lobsenz sent plaintiffs counsel an email on September 20,11 201 1, providing his "intention to note a motion for shortened time to strike portions of the12 Declaration of Charles Cox." Bremner Decl. ii 6, Ex. A. However, he failed to provide a time13 and location for its presentation. Rather, he waited until the next day and provided that14 information at the same time defendant's response to the motion for preliminary injunction was15 provided.16 Plaintiffs have not been provided a reasonable amount of time to prepare a response to17 this motion or the motion to strike the declaration of Charles Cox as they have been required to18 devote all of their time to replying to the Motion for Preliminary Injunction. Defendant's19 Opposition to the Motion for Preliminary Injunction includes an eighteen page memorandum in20 opposition as well as a seven page declaration with attached exhibits. Defendant knew that21 serving the two motions along with the responsive materials would require plaintiffs to limit their22 focus on each motion, especially considering the 24-hour time period to respond.23


STAFFORD FREY COOPERPROFESSIONAL CORPORATION601 Union Street Suite 3100

Seatte WA 98101.1374TEL 2066239900 FAX 2066246885


3/8

1 A deviation from the normal time limits should not be permitted unless there is ample2 notice and time to prepare. Loveless v. Yantis, 82 Wash. 2d 754, 513 P.2d 1023 (1973). There

3 has not been ample notice nor has there been time to prepare a response to the motion to shorten4 time or the motion to strike the declaration of Charles Cox. As a result, this Court should deny5 both motions.

6 B. Plaintiffs have never alleged they have standing to bring claims for violation ofthe privacy of Ms. Cox Powell or Ms. Cornett.7 Plaintiffs' standing rests in the violation of their own personal privacy rights. The8 Restatement (Second) or Torts, 6521, comment a, states that a "cause of action is not9

assignable, and cannot be maintained by other persons such as members of the individuals'10 family, unless their own privacy is invaded along with (hers)." (emphasis added). Here,11 plaintiffs' privacy rights were invaded by the publication of their daughter's journals that12 contains information directly linked to their private lives.13 The Washington Supreme Court has recognized a protectable privacy right where14 conduct towards an immediate family member is sufficiently egregious to enable the family15 member to maintain his or her own action. See Reid v. Pierce County, 136 Wash.2d 195,96116 P.2d 333 (1998) ("When there are unusual circumstances.. .it may be that a defendant's conduct17 towards (a family member) wil be found to be sufficiently egregious to give rise to an18 independent cause of action in favor of members of (that individual's) immediate family.")19

(quoting Loftv. Fuller, 408 So.2d 619, 624 (Fla.App.1981)).20Plaintiffs have shown that their daughter's journals contain detailed information about21 them personally and their private family life. Publication of the journals by defendant invades22 the recognized and legally protected privacy rights of plaintiffs.23


STAFFORD FREY COOPERPROFESSIONAL CORPORATION601 Union Street, Suite 3100

Seattle WA 981011374TEL 2066239900 FAX 206.624.6885


4/8

1 C. Ms. Powell's journals are not a matter of public concern that outweighs herfamily's privacy interest.2 While Plaintiffs have participated in the public debate surrounding the disappearance of3 their daughter, this does not open the door to every intimate detail of their family lives.4 Restatement (Second) of Torts 652D (1977), comment h, points out that not all matters are of a5 legitimate public interest:67

The line is to be drawn when the publicity ceases to be the giving of information to whichthe public is entitled, and becomes a morbid and sensational prying into private lives forits own sake which a reasonable member of the public, with decent standards, would saythat he had no concern.9 Even where matters are within the protected sphere of legitimate public interest, private facts

10 about an individual nevertheless lie outside that sphere. In Virgil v. Time, Inc., 527 F.2d 112211 (9th Cir. 1975), an action by a surfer based on publicity about his private affair in an article about12 surfing, the Ninth Circuit pointed out that13 (t)he fact that (people) engage in an activity in which the public can be said to have ageneral interest does not render every aspect of their lives subject to public disclosure.Most persons are connected with some activity, vocational or avocational, as to which the

public can be said as matter of law to have a legitimate interest or curiosity.415 Id. at 113 1. In the age of the internet, Facebook, Twitter, and other social media outlets, each16 member of our society at some time is likely to engage in an activity that could be characterized17 as a matter of public interest or concern; to permit that activity to open the door to the exposure18 of any truthful secret about that person would render meaningless the tort of public disclosure of19 private facts.20 Supporting plaintiffs' plea for privacy, Courts have previously recognized family21 members' rights to privacy in the diaries of persons involved in possible crimes. In Sheets v. Salt22 Lake County, 45 F.3d 1383 (1995), Gary Sheets, the husband of a murder victim sued the county23 and county investigator for violation of a constitutional right to privacy based on release to a

REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARYINJUNCTION - 4 STAFFORD FREY COOPER11532-030894 810371x PROFESSIONAL CORPORATION

601 Union Street, Suite 3100Seattle WA 98101.1374

TEL 206623.9900 FAX 206.624.6885


5/8

1 book author of excerpts from his wife's diary. Sheets sought to avoid disclosure of portions of2 his wife's journal that were personal to him and his marriage. Id. at 1388. The court found that

3 Sheet's had a reasonable expectation of privacy surrounding the diary and that such right was

4 violated when the county investigator released the diary.5 While recognizing that Sheets did not author the diaries and that his wife's murder was a

6 public event, the court stil found that his privacy rights had been violated: "(t)he fact that Mr.7 Sheets did not author the information does not prohibit him from having a distinct privacy

8 interest in the dissemination of information written about the personal aspects of his life." Id.

9 The court even acknowledged that the facts revealed in the diary about Sheets may not be10 controversial or embarrassing, but determined that information need not be embarrassing to be11 personal: "We find that information conveyed to one's spouse or that one's spouse has observed12 about one's character, marriage, finances, and business to be personal in nature and subject to a13 reasonable expectation of privacy." Id. (emphasis added).14 Similar to Sheets, the Plaintiffs have a reasonable expectation of privacy, even where15 their daughter and her journal have become a topic of public interest. There are some facts that16 are inherently protected by the right of privacy. See Cowles Pub i 'g Co. v. State Patrol, 10917 Wash.2d 712, 748 P.2d 591 (1988) ("Every individual has some phases of his life and his18 activities and some facts about himself that he does not expose to the public eye, but keeps19 entirely to himself or at most reveals only to his family or to close personal friends.") (emphasis20 added).212223



Seattle WA 98101.1374TEL 2066239900 FAX 2066246885


6/8

1 D.Prohibition on the publication of Ms. Cox Powell's journal is not anunconstitutional prior restraint on speech.

2 Every case supporting defendant's position that the publication of Ms. Cox Powells3 personal and most intimate writings is an unconstitutional prior restraint on speech is4

distinguishable from our present facts as those cases deal with either cases of defamation,5 opinion, or a legitimate public interest.6

1. Plaintiffs are not seeking to enjoin defendant's opinions or defamatory7 statements.8 Plaintiffs are not seeking to enjoin defendant from making defamatory comments about

9 his wife. Rather, they are seeking to prevent the publication of protected private information in

10 the journal entries authored by Ms. Cox PowelL. Defendant has cited numerous cases that deal11 with issues of defamation or opinion, but has provided nothing that supports the argument that a12 restraint on publication of private journals is unconstitutionaL. See Near v. Minnesota, 383 U.S.13 691 (1931) (determining that the appropriate means of punishing defamation was through libel14 laws, not injunction); Organizationfor a Better Austin v. Keefe, 402 U.S. 415 (1971) (barring an15 injunction which prohibited publication that criticized business practices of real estate broker). It16 is defendant's prerogative if he wants to defame and/or allow his family to defame his missing17 wife's character. Plaintiffs are only seeking to restrain the publication of the journals, not any18 defamatory material or opinion defendant may choose to express.19 2. The journals are not of legitimate public concern so as to give way to theprivacy interests of plaintiffs.20

The private journal entries of Ms. Cox Powell are not of legitimate public interest and are21not a public record. The cases cited by defendant are distinguishable from our present facts22 because Ms. Cox Powell's journals have not become public record and her most intimate23REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARYINJUNCTION - 611532-030894 810371x


Seatte WA 981011374TEL 206.623.9900 FAX 206624.6885


7/8

1 thoughts and descriptions of her family life are not of legitimate public concern. See New York2 Times Company v. United States, 403 U.S. 713 (1971) (disallowing a prior restraint while3 emphasizing the necessity of open debate and discussion of public issues); See Oklahoma Publg4 Co. v. District Court, 430 U.S. 308 (1977) (prohibiting an injunction against publication of5 juvenile's name where obtained from court proceeding attended by members of the press with

6 full knowledge by the judge, prosecutor, and defense counsel); Cox Broadcasting Co. v. Cohn,

7 420 U.S. 469 (1975) (finding that the actual privacy of a matter fades in significance because it8 has already been made a part of public record and is therefore already on the books). Defendant9 has not provided any argument to support how Ms. Cox Powell's intimate personal details of her

10 life and the life of her parents are a legitimate public concern that outweighs the family's privacy11 rights.12 Where an item is not of legitimate public concern, courts have maintained injunctions13 prohibiting disclosure. See In re Minor, 149 IlL. 2d. 247, 250, 595 N.E.2d 1052 (1992) (finding14 that juvenile Court Act section authorizing court to prohibit newspaper from disclosing identities15 of victims was not unconstitutional prior restraint on freedom of speech). Indeed, publication of16 one's private and personal diary entries would surely have a chiling effect on private speech:17 " 'The essential thrust of the First Amendment is to prohibit improper restraints on thevoluntary public expression of ideas; it shields the man who wants to speak or publish18 when others wish him to be quiet. There is necessarily, and within suitably definedareas, a concomitant freedom not to speak publicly, one which serves the same19 ultimate end as freedom of speech in its affirmative aspect.' "20 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S., at 559, 105 S.Ct. 2218 (quoting21 Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 24422 N.E.2d 250,255 (1968)).

23REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARYINJUNCTION - 711532-030894 810371x


SeattleWA 98101.1374TEL 206.623.9900 FAX 2066246885


8/8

1 3. The alternative remedy of civil damages wil not suffice.2 Individuals have a constitutional right to privacy against disclosure of personal matters,

3 Whalen v. Roe, 429 U.S. 589, 599 (1977), and the only justifiable remedy is to enjoin publication4 of Ms. Cox Powells journals. Plaintiffs have a reasonable expectation of privacy in the5 information contained within their daughter's journals and defendant has provided no justifiable6 argument establishing the public interest is greater than the family's privacy interests. A remedy7 sought in tort is insuffcient to deal with the evils at hand. As the Washington Supreme Court8 stated in Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 237, 654 P.2d 673 (1982), ailel 4679 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984),

10 ( a) tort action should not and does not constitute the sole protection which governmentaffords to the privacy interest of individuals. A threatened invasion of those interests maynot have all of the characteristics necessary to warrant recovery of damages underexistent tort principles and yet be properly a subject of governmental sanction.112 Denying an injunction in the present matter strikes directly upon the sanctity of this family's13 private life and opens the most secure door recognized by our laws. In instances like this, private14 information simply must remain private.15 E. Conclusion16 For the reasons stated above, plaintiffs Charles and Judy Cox respectfully request this17 Court grant their Motion for Preliminary Injunction.18 DATED this day of , 2011.19 STAFFORD FREY COOPER2021 By:22

Anne M. Bremner, WSBA #13Evan D. Bariault, WSBA #42867Attorneys for Plaintiffs23



Seattle WA 981011374TEL 2066239900 FAX 2066246885

anne bremer motion reply

Documents