Posted by: Patricia Salkin | March 8, 2019

CA Appeals Court Affirms Restraining Order Against Neighbor’s Harassing Behavior Made in Retaliation for Zoning Complaint Over Use of Drone

This post was authored by Amy Lavine, Esq.

A California case decided in March upheld a restraining order that sought to protect a beleaguered property owner from his neighbor’s harassing conduct and obnoxious land uses, which were intended to retaliate against him for filing a complaint about unauthorized commercial activities on his neighbor’s property. The court rejected various claims made by the neighboring property owner and upheld provisions in the restraining order that prohibited him from flying an aerial drone over the property, restricted the persons who could use an access easement he owned, and prohibited him from using an orchard cannon.

Marshall Foletta filed a complaint in 2015 about the operation of unlicensed commercial activities on property owned by his neighbor, Christopher Ellis. The county responded by issuing notices of violation, but shortly thereafter Ellis began a campaign of allegedly harassing conduct with the intent of “getting back” at Foletta. For example, Ellis began performing loud construction work late at night and playing extremely loud music throughout the day. He also began using a previously idle easement over Foletta’s property, often at high speeds and accompanied by friends in all-terrain vehicles and motorcycles. In addition to these activities, Ellis “stalked” Foletta’s property on several occasions with an aerial drone while he “lurked” at the lot boundary and stared at Foletta and his wife.

The Folettas rented an apartment in another neighborhood for several months in an attempt to avoid Ellis and his “relentless” harassment, but their tires were slashed even after relocating, and they eventually returned to their property in late 2016. Ellis reacted to the Foletta’s return with a Craigslist posting that advertised Foletta’s property as open to the public and free of charge for activities like skeet shooting, dirt biking, and drone flying, and Foletta only became aware of this online impersonation after he confronted a stranger carrying a shotgun across his yard. Ellis also added an orchard cannon to his repertoire of noise-making devices around this time. Foletta eventually went to court in an effort to put an end to Ellis’ alleged harassment, and the trial court granted him a three-year restraining order barring Ellis from playing loud music, flying drones over his property, and allowing other people to use his easement, among other things. Ellis then appealed.

The appellate court first addressed and dismissed Ellis’ claim that the restraining order was invalid to the extent that it prohibited him from flying drones over Foletta’s property. While it was true, as Ellis argued, that the Federal Aviation Administration (FAA) had general authority over the air space, there was no evidence that he had any particular FAA approval for his drone flights over Foletta’s property. The court instead agreed with Foletta “that the appropriate question is whether the federal government’s regulation of air space generally is intended to preempt the authority of the states to regulate harassment that involves that air space.” The court concluded that no such preemption existed under federal law and accordingly upheld the restraining order as to Ellis’ drone flights.

The court also dismissed Ellis’ objection to the restraining order insofar as it restricted the use of his easement over Foletta’s property to himself and members of his family. It was irrelevant that his rights to the easement were being litigated in another proceeding, the court found, because the restraining order specifically stated that it applied “unless otherwise ordered in the civil case currently pending.”

The appellate court next upheld the portion of the restraining order that prohibited Ellis from using his orchard cannon. Although the property was located in a rural county where orchard cannons were otherwise permitted, the trial court specifically found that Ellis had no legitimate reason for using this device and that his only purpose in doing so was to harass and annoy Foletta. As the court explained, the orchard cannon could be prohibited in these circumstances, regardless of the fact that it had legal uses other than harassment.

Lastly, the court disagreed with Ellis that decibel readings Foletta obtained using a borrowed sound meter should have been excluded from evidence. Regardless of the lack of foundation for the device’s calibration and accuracy, the court emphasized that the precision of Foletta’s decibel readings wasn’t conclusive because the trial court actually “heard” numerous recordings that Foletta introduced as evidence of Ellis’ music and sound disturbances.

Foletta v. Ellis, 2019 WL 1091049 (CA App unpub. 3/8/19).


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