Martorano v. Fagan

Filed 4/13/07 Martorano v. Fagan CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Linda Lefkowitz, Judge. Affirmed and remanded.

Michael N. Sofris for Defendant and Appellant.

Youngerman & McNutt, Thomas B. McNutt, Jonathan L. Endman for Plaintiff and Respondent.

___________________________________________________

This appeal arises from a prolonged dispute between two neighbors in Malibu. After Dr. David Martoranos initial complaints about the noise from Attorney Barry Fagans barking dog, Fagan began a lengthy scheme of harassment involving the playing of music in his rear yard while nobody was home, shouting invectives at Martorano, and finally installing in his rear yard a set of drums which Fagans children occasionally played. Pursuant to Code of Civil Procedure section 527.6,^[1]the trial court held a hearing on Martoranos harassment claim and then issued an order enjoining certain activities.

The injunction, in pertinent part, required that Fagan stay at least 20 feet away from Martorano and his wife, enjoined Fagan from harassing and threatening them and destroying their personal property, and placed various restrictions on Fagans use of sound producing devices at his residence. We find Fagans challenges to the restraining order unavailing and affirm.

FACTUAL AND PROCEDURAL SUMMARY

In October of 2005, Martorano and his then-fiance, Melissa Mazzei, rented a single-family residence in Malibu on Roca Chica Drive next door to Fagans single-family residence. Martorano is a psychiatrist, whose practice is located at his residence. Fagan is an attorney and real estate broker, who occasionally works from his home.

Soon after Martorano and Mazzei moved into the residence, they were awakened early many times by the nonstop sound of Fagans dog barking. The barking noise also disturbed Mazzei during the day because the window of her home office faced the backyard.

When the noise problem did not resolve itself after several weeks, Martorano and Mazzei approached Fagan about it. Fagan reacted by screaming at them and warning them that there was nothing they could do. Fagan said he was an attorney and would like to see them try to do something about the dog because, When I get pushed against, I slap people back. Fagan concluded by saying that he was going to enjoy making their lives very unpleasant.

Martorano and Mazzei then wrote Fagan a letter indicating they were sorry about the nature of their recent encounter, hoped for a peaceful resolution of the problem, and offered suggestions as to how to discourage the dog from barking. Subsequently, they wrote to the animal control agency and also obtained a dog bark suppressor which they placed on their property.

The situation then deteriorated. When Martorano and Mazzei were not home, the wire was cut on the bark suppressor in their yard. Every day for approximately two months, from the end of December 2005 through the beginning of March 2006, Fagan played music between four and fifteen hours during the day continuously from a small boom box in his backyard. The boom box he set up faced the adjacent residence, which was on the other side of a chain link fence. Most of the time when the music was playing nobody was in Fagans backyard listening. For days on end Fagan played the same CD music.

In response to complaints by Martorano and Mazzei about excessive noise, deputy sheriffs investigated on a number of occasions. The deputies estimated that on a scale of one to ten, with ten being the most offensive volume, the music from the small boom box in Fagans backyard was approximately at a three or four level. It was loud [enough] to be heard. Martorano, however, complained principally about the prolonged nature of the music, which one of the deputies described as elevator music. Whenever one of the deputies arrived at Fagans residence and requested that he lower the volume or turn off the music, Fagan did so.

Martorano used a video camera from his own yard and inside his house to document the dog barking and the music playing from Fagans boom box.^[2] On one occasion, Fagan yelled a death threat over the fence to Martorano, called Martorano a pedophile, and threatened to build a case against him for being a pedophile. He later filed a complaint against Martorano with the California Medical Board. On another occasion, Fagan approached Martorano at the beach club where they were both members and again accused him of being a pedophile. Martorano, who asserted he never photographed Fagans children, felt very harassed by these claims. Fagan at one point also filed in court a complaint (of an unspecified nature) against Martorano but did not prosecute the matter.

After Martorano obtained a temporary restraining order against Fagan, Fagan installed a drum set outside in his backyard. Fagan got the drums for his young boys to learn how to play on them, but they did not play the drums often. When the court asked Fagan if the reason his children did not play that often was because the noise disturbed Fagan, he replied that his children had just started and need lessons to learn how to play the drums properly.

The constant music from the small boom box in Fagans yard caused Mazzei anxiety and distress, and it distracted her when she worked in her home office, even with the windows shut, to the extent that she could not concentrate on her work. The constant music interfered with her ability to perform normal daily activities. Also, Fagans barking dog woke her up early many times.

Martorano, whose office was on the other side of the house, did not suffer any business interruption from the constant music. However, the distress caused him insomnia. As he explained: I believe Im not sleeping because Ive been really acutely stressed and I have been sensitized to the sounds coming from Mr. Fagans property. And even when Im hearing his dog barking a little in the morning now, it reminds me of all of the painful aspects of dealing with this case, and the fact that this could have been handled so much more simply, and the fact that we really tried to resolve this in a neighborly way, and that Mr. Fagans threats of harassing us and making our lives miserable were absolutely true. And he has done just that. [] And I regret having rented the property because of the distress it causes us. And I wake up really upset early in the morning, and I cant fall back asleep, and I obsess about the fact that this has taken up so much valuable time over something so simple as really trying to accommodate somebody and being a friendly, nice person. . . . and its really created insomnia. Martorano also attributed his insomnia to the unfounded and repeated accusation that he was a pedophile and was invading peoples privacy when [he was] not, as well as to the stresses related to the ensuing litigation with Fagan.

The trial court took the matter under submission and ultimately issued a written opinion and a restraining order against Fagan. The trial courts opinion stated, in pertinent part, as follows: [The noise complained of was] a concerted effort at annoying [Martorano.] . . . [] Having observed [Fagans] demeanor and responses to questions in this area, his claim that the music was necessary to quiet the dog, and that while within the house, he could hear and enjoyed listening to the music, lacks credibility. Moreover, there was also additional evidence of [Fagans] shouting threats, calling [Martorano] a pedophile from his yard and, finally, installing a drum set, apparently with cymbals, in his rear yard and permitting others to play on it on more than one occasion. The court had occasion to hear a sound tape of the drum set in operation; its noise would have caused any reasonable person distress and, in this courts mind, could not have been escaped even within the Martorano home. [] While it is true that at times the sound level did not exceed permissible legal limits, the totality of the evidence reflects that the constant [din] of music, as noted by this court in listening to various video and sound tapes, was such that, in repetition, a reasonable person could well suffer from emotional distress. Both [Martorano] and [Mazzei] testified to sleep problems and various stress reactions and while there was no medical evidence in the record on this issue, [citation], the court finds a reasonable person, faced with months of the purposeful conduct described in the record, could suffer the requisite substantial emotional distress. [] . . . [Fagans] conduct over a period of months was purposeful, escalating in nature, and intended to harass. The fact that the music may not have been uniformly loud speaks more to the invidious nature of the war of harassment than to its absence.

On March 14, 2006, the court issued its restraining order, and then modified it on April 20, 2006. The restraining order as modified expires after three years, requires that Fagan stay at least 20 feet away from Martorano and Mazzei, and requires that Fagan comply at all times with the City of Malibus Municipal Code, section 8.24.050, which prohibits, in pertinent part, causing any unnecessary noise or knowingly and unnecessarily permitting to be made any loud, boisterous, or unusual noise, disturbance or vibration from the house or any other place on Fagans property.

The restraining order also prohibits Fagan from the following: (1) harassing and threatening Martorano and his wife and destroying their personal property; (2) playing music in the yard of his residence unless someone is present in the yard; (3) using or permitting the use of percussion instruments or amplifiers on the exterior of his property; (4) using radios, televisions or any other sound producing devices at a volume sufficiently loud as to disturb the peace, quiet or repose of Martorano or Mazzei, as measured by the standard of an ordinary person of normal sensitivities in the adjacent or immediate vicinity of Fagans property; and (5) using any sound producing device outside or inside but directed toward the outside of his residence between the hours of 10:00 p.m. and 8:00 a.m. on weekdays and 10:00 p.m. and 9:00 a.m. on weekends and holidays.

Fagan appeals and seeks to dissolve the restraining order, a section 527.6 injunction prohibiting harassment.

DISCUSSION

I. Appealability and the standard of review

An order granting an injunction is appealable as a final judgment on the merits. ( 904.1, subd. (a)(6).) This includes, of course, an order granting an injunction obtained pursuant to section 527.6, which sets forth the procedures for obtaining an injunction to protect a person who has suffered harassment. (See Schild v. Rubin (1991) 232 Cal.App.3d 755.)

If the requisite elements of unlawful harassment^[3]are established at a hearing by clear and convincing evidence, then an injunction shall issue prohibiting the harassment. ( 527.6, subd. (d), italics added.)  Thus, an injunction to prohibit the offending conduct is mandatory and not subject to the courts discretion. Having not exercised any discretion in issuing the harassment injunction (other than in fashioning its terms), the trial courts decision to issue the injunction cannot be reviewed for abuse of discretion. Unlike a traditional injunction reviewed for abuse of discretion (see Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850), a section 527.6 injunction has its own statutory elements and requirements for which the statutory remedy was created, subject to the substantial evidence standard on appellate review. In accordance with that standard of appellate review, we resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences that support the trial courts order. (Schild v. Rubin, supra, 232 Cal.App.3d at p. 762.)

II. General legal principles

As explained in Schild v. Rubin, supra, 232 Cal.App.3d at page 762, section 527.6 authorizes a person who has suffered harassment to obtain a temporary restraining order and an injunction against the harassing conduct and provides an expedited procedure to obtain such an injunction. . . . The elements of unlawful harassment, as defined in section 527.6, are as follows: (1) a knowing and willful course of conduct entailing a pattern of a series of acts over a period of time, however short, evidencing a continuity of purpose; (2) directed at a specific person; (3) which seriously alarms, annoys, or harasses the person; (4) which serves no legitimate purpose; (5) which would cause a reasonable person to suffer substantial emotional distress and actually cause[s] substantial emotional distress to the plaintiff; and (6) which is not a [c]onstitutionally protected activity.

Section 527.6 supplements the common law torts of invasion of privacy and intentional infliction of emotional distress by providing harassment victims with an expedited procedure for limited-scope and limited-duration injunctions. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 807; Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591.) An injunction issued pursuant to this section shall have a duration of not more than three years. ( 527.6, subd. (d).) And, the trial courts section 527.6 injunction is limited in scope, since it cannot finally determine the parties respective rights and duties. (Byers v. Cathcart, supra, at p. 810.) The purpose of the injunction is not to punish for past acts of harassment, but rather to provide quick relief and prevent future harassment. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 403.)

III. Fagans various challenges to the injunction are unavailing

The notion of impending, future injury

Fagan contends the trial court erred in issuing the injunction because there was no evidence of a impending injury, since the offending conduct had ceased and there was no evidence at the hearing that it would continue in the future.

Fagans argument focuses on the fact that he only once yelled a death threat to Martorano, that the temporary restraining order was obtained approximately a month after he made the threat, that the hearing on the injunction occurred approximately two months after the threat, and that there was no evidence Martorano feared Fagan would act on his threat. Fagan also notes that he stopped playing music in his backyard approximately 18 days before the hearing, and that the complaints about his harassment have abated except for those relating to his barking dog. Fagan thus urges that the court erred in issuing the injunction because it was based on past conduct which had stopped, and there was no evidence introduced at the hearing that the offending conduct was likely to continue.

However, no language in section 527.6 requires evidence that the harassing conduct will continue into the future, or that there be evidence of impending injury. In that sense, an harassment injunction under section 527.6 differs from a traditional injunction under section 526, subdivision (a)(3), which specifically requires by its terms that the party to be enjoined is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act sought to be enjoined. Such an injunction must be supported by evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity. (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)

However, with an harassment injunction the notion of enjoining future conduct requires no specific evidence, because it is implicit in the definitional elements of harassment. An harassment injunction requires evidence of a knowing and willful course of conduct ( 527.6, subd. (b)), defined as a pattern of conduct composed of a series of acts over time, however short, evidencing a continuity of purpose . . . . ( 527.6, subd. (b)(3).) The course of conduct and continuity of purpose requirements encompass the notion of future conduct, concerning which no specific finding is required.

In the present case, the prospect of Fagans engaging in future conduct of the type proscribed by the injunction is reasonably inferred from his past conduct. Although his offending conduct largely abated after the temporary restraining order, there is no support for the theory that compliance with a lawful temporary restraining order, which we must assume will occur, can somehow preclude the necessity for an injunction to ensure more long-term behavioral compliance. Here, Fagans invidious . . . war of harassment--his willful pattern of harassing conduct over time with a continuity of purpose, as distinguished from merely a single, isolated incident (see Russell v. Douvan, supra, 112 Cal.App.4th at pp. 403-404)--is sufficient to satisfy the requirements for a section 527.6 injunction.

No absolute right to unfettered enjoyment of ones own property

Nor is there any merit to Fagans contention that the trial court erred because its injunction prohibited him from enjoying the use of his own property. Specifically, Fagan complains that City of Malibus ordinances permit him to play music at a reasonable volume in the backyard of his own home between the hours of 7:00 a.m. to 10:00 p.m. on weekdays, which is somewhat less restrictive than the time frame in the injunction, and that a court of equity will not restrain a person from that which the law authorizes that a person do. (Dammann v. Hydraulic Clutch Co. (1920) 45 Cal.App. 511, 513.)

The general right of every person to enjoy his own property and engage in any lawful and innocent amusement therein is not an unlimited right. (In re Hall (1920) 50 Cal.App. 786, 789.) The right to enjoy ones own property may be restricted where a person encroach[es] upon the rights of others (ibid.), such as Fagans insidious encroachment on Martoranos right to be free from harassment. To the extent the enjoyment of music is a constitutionally protected activity, it is not an absolute right. The enjoyment of music is, as in the present case, subject to reasonable constraints as to time, place and manner. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

Regarding the City of Malibu Municipal Code, it places reasonable restrictions not only on the volume of noise, but also prohibits unnecessary noises and knowingly and unnecessarily permitting to be made, any . . . unusual noise, disturbance, commotion or vibration (Malibu Mun. Code,  8.24.050, subd. (A)), as noted in the language of the trial courts injunction. Similarly, another section of the code prohibits any unnecessary noises, sounds or vibrations which are physically annoying to reasonable persons of ordinary sensitivity or which are so harsh or so prolonged or unnatural or unusual in their use, time, or place as to occasion unnecessary discomfort to any persons within the neighborhood. (Malibu Mun. Code,  8.24.040.) In fact, it is the citys declared policy to control unnecessary, excessive and annoying noise. (Malibu Mun. Code,  8.24.020.)

Certainly, Fagans playing music outside when no one was present outside would constitute unnecessary noise. And, although the code only prohibits radios from being played at an unnecessarily high volume between the hours of 10:00 p.m. and 7:00 a.m. (Malibu Mun. Code,  8.24.050, subd. (B)), the loudness of the music was not the principal problem in the present case. Accordingly, there is no factual support for Fagans assertion that the injunction improperly restrained him from indulging in conduct otherwise authorized by law.

Fagans infliction of substantial emotional distress

Also without any factual support in the record is Fagans contention that there was no evidence Martorano actually suffered the requisite substantial emotional distress. ( 527.6, subd. (b).) Fagan points to Martoranos comment that he had difficulty sleeping because of the stress of litigation--being served with ex parte motions, having to come to court, and incurring mounting legal expenses. Indeed, emotional distress attributable to the harassment litigation, as distinguished from the underlying harassing conduct, is not the type of emotional distress contemplated by the statute. (Schild v. Rubin, supra, 232 Cal.App.3d at p. 763.)

However, Martoranos testimony focused on more that just the stress of litigation. As he explained: I believe Im not sleeping because Ive been really acutely stressed and I have been sensitized to the sounds coming from Mr. Fagans property. And even when Im hearing his dog barking a little in the morning now, it reminds me of all of the painful aspects of dealing with this case, and the fact that this could have been handled so much more simply, and fact that we really tried to resolve this in a neighborly way, and that Mr. Fagans threats of harassing us and making our lives miserable were absolutely true. And he has done just that. [] And I regret having rented the property because of the distress it causes us. And I wake up really upset early in the morning, and I cant fall back asleep, and I obsess about the fact that this has taken up so much valuable time over something so simple as really trying to accommodate somebody and being a friendly, nice person. . . . and its really created insomnia. Martorano also attributed his insomnia to the repeated and unfounded accusations that he was a pedophile and was invading other peoples privacy.

Apart from Martoranos emotional distress, Mazzei suffered anxiety and distress from the constant din of music to the extent that she could not concentrate on her work and was severely distracted in her home office. The constant music interfered with her ability to perform normal daily activities, and Fagans barking dog woke her up early many times.

The trial court listened to the tapes of the barking dog, the constant din of music, and the drum set with cymbals, and considered evidence of Fagans shouting threats and accusations. The court aptly emphasized that both Martorano and Mazzei testified to sleep problems and various stress reactions, and that a reasonable person faced with months of such purposeful and escalating conduct could suffer the requisite substantial emotional distress.

We agree. The totality of the Fagans conduct was socially unacceptable and would cause a reasonable person nontrivial distress and mental anguish which should not have to be endured. (Schild v. Rubin, supra, 232 Cal.App.3d at pp. 762-763.)

Contrary to Fagans related assertion, the facts of the present case are not at all analogous to those in Schild v. Rubin, supra, 232 Cal.App.3d 755. That case involved a complaint by homeowners that the noise created by their neighbors children playing basketball for up to 30 minutes in the neighbors backyard interrupted the homeowners Saturday and Sunday afternoon naps and, in general, interfered with their ability to rest and relax in their own home. (Id. at p. 758.) It was in that context that Schild v. Rubin observed that a reasonable person must realize that complete emotional tranquility is seldom attainable, and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment. (Id. at p. 763.)

We decline to equate Fagans purposeful and escalating conduct described above with the act of children bouncing a basketball for no more than five to thirty minutes, three to five times a week. (Schild v. Rubin, supra, 232 Cal.App.3d at p. 758.) Fagans socially unacceptable course of conduct would seriously annoy and harass a reasonable person, and would cause a reasonable person to suffer substantial emotional distress within the meaning of section 527.6, subdivision (b). (Schild v. Rubin, at pp. 762-763.)

No unconstitutional infringement on freedom of speech

Fagan contends that the trial court erred in issuing a restraining order to prevent him from calling Martorano a pedophile because it unconstitutionally infringed on his freedom of speech. Apart from whether such potentially slanderous speech (see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134; Miles v. National Enquirer, Inc. (D. Colo. 1999) 38 F.Supp.2d 1226, 1229) is nonetheless subject to the proscription against prior restraint of free speech (see Alexander v. United States (1993) 509 U.S. 544, 550), the terms of the restraining order simply did not restrict Fagans use of language. Fagans complaint is thus meritless.

Not unconstitutionally vague

Equally unavailing is Fagans contention that part of the restraining order is unconstitutionally vague. He complains about a portion of the March 14, 2006, order, which was incorporated into the order as modified on April 20, 2006. Specifically, Fagan faults the requirement that he not play music in [the] outside yard unless a family member or other person is present nor engage [in] or permit use of percussion instruments in [the] exterior yard.

It is well settled that to comply with due process concerns for adequate notice, an obligation imposed by law should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without running afoul of the law. (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453; see also People v. Heitzman (1994) 9 Cal.4th 189, 199-200.) The operative corollary is that an injunctive command which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.)

In evaluating challenges based on claims of vagueness, [t]he particular context is all important. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4that p. 1118.) The second guiding principle is the notion of reasonable specificity. (Id. at p. 1117, citing Coates v. City of Cincinnati (1971) 402 U.S. 611, 614, italics added by People ex rel. Gallo v. Acuna.)

In the present case, Fagan asserts it is impossible for law enforcement personnel to interpret the provision requiring that he not play music in his outside yard unless a family member or other person is present. He asks two questions: (1) must he have another person present when he plays music in his backyard, and (2) may his wife and children play music in the backyard when he is not home?

An appellate court may not answer questions that, as here, would amount to giving an advisory opinion. (People ex rel. Lynchv. Superior Court (1970) 1 Cal.3d 910, 912.) Suffice it to say that an order that Fagan not play music in his outside yard unless a family member or other person is present, nor that he engage in or permit the use of percussion instruments in his outside yard, is reasonably specific so as to comport with due process requirements.

Not unconstitutionally overbroad

Nor is the injunctive order under review unconstitutionally overbroad. (See People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1112-1115.) Fagan complains that the injunctions permissible music playing times of 8:00 a.m. to 10:00 p.m. weekdays, and 9:00 a.m. to 10:00 p.m. weekends, are somewhat more restrictive than those in the citys noise control ordinance permitting music playing from 7:00 a.m. to 10:00 p.m. (Malibu Mun. Code,  8.24.050, subd. (B)). Even assuming the injunctive relief here is deemed equitable relief and that a court of equity will not restrain a person from engaging in that which is authorized by law (Dammann v. Hydraulic Clutch Co., supra, 45 Cal.App. at p. 513), no law authorizes Fagan to indulge in harassing conduct.

Lastly, just because the injunction proscribes noise not only from a radio but also from a television or other sound producing devices, the injunction is not defective as overbroad. The language of the Malibu ordinance is written in terms of any radio, musical instrument, phonograph, television set, or [similar] instrument or device. (Malibu Mun. Code,  8.24.050, subd. (B).) In a parallel manner, the injunction also references television noise. Admittedly, Fagans television was not at issue at the hearing. However, the injunction was not overbroad because it was reasonably tailored to address the general problem, which was Fagans generating offending sounds by whatever means he was able to contrive.

IV. Attorney fees and costs

Pursuant to section 527.6, subdivision (i), The prevailing party in any action brought under this section may be awarded court costs and attorneys fees, if any. Since we affirm the order under review without modification, Martorano is the prevailing party. (Cal. Rules of Court, rule 8.276, subd. (a)(2).) We deem it appropriate to award attorney fees and costs on appeal to Martorano, who may proceed in the trial court to establish and recover the appropriate amount.

DISPOSITION

The order under review is affirmed. The matter is remanded to the trial court for a determination of an appropriate award of attorney fees and costs on appeal to Martorano.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.

Section 527.6 expired by its terms on January 1, 2007 ( 527.6, subd. (r)) but was reinstated on that date by additional legislation with substantially similar provisions. (Stats. 2002, ch. 1009,  2, operative Jan. 1, 2007, amended by Stats. 2003, ch. 498,  2, operative Jan. 1, 2007.)

^[2] Various video recordings made by Martorano were played for the court at the hearing and admitted into evidence without objection. On appeal, neither party has arranged for the delivery of the video recordings to this court. (See Cal. Rules of Court, rule 8.224.)

^[3] Section 527.6, subdivision (b) defines harassment as follows: unlawful violence, a credible threat of violence, or 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. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.