The denial of Jane’s request to renew the restraining order is appealable as an order refusing to grant an injunction under Code of Civil Procedure section 904.1, subdivision (a)(6). (See Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831, fn. 6 [appeal from issuance of restraining order]; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332 [appeal from denial of application for temporary restraining order].) The DVPA broadly defines abuse to include conduct that puts a person “in reasonable apprehension of imminent serious bodily injury,” (§ 6203, subd. (a)(3)) or any other behavior that may be enjoined under the statute (id., subd. (a)(4)), including threatening, sexually assaulting, or “<mask> of the other party” (§ 6320, subd. (a)) by conduct that, under the totality of the circumstances, “destroys [their] mental or emotional calm.” (Id., subd. (c); see Rodriguez, supra, 243 Cal.App.4th at p. 820.) A restraining order under the DVPA may be based on a showing of “reasonable proof of a past act or acts of abuse” (§ 6300, subd. (a)) and may be renewed “without a showing of further abuse since the issuance of the original order.” (§ 6345, subd. (a).) Courts have interpreted the standard for restraining order renewal in a contested case as requiring an objective showing that the protected party entertains a “ ‘ “reasonable apprehension” ’ ” of future abusive conduct. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 (Eneaji), citing Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1279 (Ritchie); see also Lister v. Bowen (2013) 215 Cal.App.4th 319, 332–333 (Lister).) Under this standard, a request to renew a restraining order may not rest solely on the requesting party’s “subjective fear the party to be restrained will commit abusive acts in the future.’ ” (Ritchie, at p. 1288.) Instead, “[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.” (Id. at p. 1290.) In making this determination, the trial court decides whether “the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Ibid.) The standard of review for an order granting or denying injunctive relief, including the trial court’s ruling on a request to renew a domestic violence prevention restraining order, is abuse of discretion. (Eneaji, supra, 229 Cal.App.4th at p. 1463; see Rodriguez, supra, 243 Cal.App.4th at p. 820; Salazar v. Eastin (1995) 9 Cal.4th 836, 850 [stating rule that orders to grant or deny “ ‘ “a permanent or preliminary injunction rest[] in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case” ’ ”].) Because every exercise of discretion must be guided by applicable legal principles, which are derived from the statute under which discretion is conferred, “ ‘a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.’ ” (Eneaji, supra, 229 Cal.App.4th at p. 1463.) Whether the trial court applied the correct legal standard in exercising its discretion to decide the underlying issue is a question of law subject to de novo review. (Ibid.) B. The Trial Court Applied the Correct Standard in Assessing the Renewal Request Jane contends that in analyzing the request to renew the restraining order, the trial court incorrectly placed too much emphasis on whether Morning had violated the restraining order during the period it had been in effect, when in fact the pertinent issue was the reasonableness of Jane’s apprehension of future abusive conduct. To assess Jane’s contention, we consider both the standard for renewal and the trial court’s application of that standard here. First, regarding the standard, it appears from the record that the trial court articulated the correct standard for renewal of a domestic violence restraining order according to statutory and case authority. At the outset of the hearing, the court explained to the parties that the burden was with the petitioner, Jane, to “prove beyond a preponderance of the evidence . . . that there is a reasonable apprehension of future harm if the restraining order is not renewed.” The trial court reiterated the applicable standard in considering the arguments of the parties at the end of the hearing. The court’s articulation of the standard is consistent with appellate case authority as set forth in cases like Ritchie, Lister, and Eneaji.


Heavican, C.J. The appellant, Kenneth W. Grant, Jr., accused of shouting in a loud, menacing, and persistent manner from his apart- ment’s balcony at persons across the street, was convicted of <mask> and of assault or menacing threats, both in violation of city ordinances in Lincoln, Nebraska. He asks us to overturn those convictions and their resulting 10-day jail sentences. We do not analyze whether Grant’s speech included fight- ing words or true threats, because even if Grant’s speech was protected, we conclude the State may regulate it through reasonable restrictions on the time, place, and manner of speech. Thus, we affirm Grant’s 10-day jail sentence for that conviction. We find that Grant’s conviction for assault or menacing threats was supported by sufficient evidence. We also affirm that conviction.


In this country, every man may publish temperate investigations of the nature and forms of government, such matters are proper for public information ; but if such publication is seditiously, maliciously, and wilfully aimed at the independence of the United States, or the constitution thereof, or of any other State, the publisher would be guilty of a libel. Yates’ Rep. vol. 4. p. 270, 271. 2 Campb. 402. But care must be taken that this important privilege be not abused ; private character must not be wantonly assailed; even “ if one uses the wea- “ pons of truth wantonly, for <mask> of families, he is “ guilty of a libel.’’ Johns. Cases, vol. 2, p. 70. Yates’ Rep. vol. 4, p. 269.


According to the State’s complaint, “Count 1” defined Grant’s offense of “disturbing the peace” as “Intentionally or knowingly disturb the peace and quiet of any person, family, or neighborhood.” The prohibition against <mask>, as described by the State in its charging document, makes no reference to the content of speech and does not target particular speech on its face due to the content discussed or the viewpoint expressed. Instead, the rule is content neutral. We recognize that the State elicited and relied on evidence of the content of Grant’s speech at trial. Such evidence was unnecessary, however, to establish a violation under the lan- guage of the disturbing the peace charge in the complaint (i.e., “[i]ntentionally or knowingly disturb the peace and quiet of any person, family, or neighborhood . . .”). We also note that Grant registered no contemporaneous objection to the admis- sion of evidence regarding the content of his speech. [21] Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 32 [22-25] Speech may take place in a traditional public forum, in a designated public forum, in a nonpublic forum, or on private property. 33 Traditional public forums are those places which are owned by the government and historically “‘have been devoted to assembly and debate,’” 34 “‘communicating thoughts between citizens, and discussing public questions.’” 35 Public streets, sidewalks, and parks fall into this category, including streets and sidewalks which run through residential See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). See Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). See id., 473 U.S. at 802. Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32, 460 U.S. at 45. - 713 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


sentenced him to 10 days in jail for each conviction, the sen- tences to run concurrently. After sentencing, Grant perfected a timely appeal to the district court for Lancaster County. Sitting as an intermediate court of appellate review, that court affirmed. Grant again per- fected a timely appeal, and we moved his appeal to our docket. II. ASSIGNMENTS OF ERROR Grant assigns that the district court erred in affirming his convictions and sentences. Specifically, Grant contends that (1) the speech for which he was convicted of <mask> was constitutionally protected, (2) there was insufficient evidence adduced at trial to support his convictions, and (3) his sentences were excessive. III. STANDARD OF REVIEW [1-3] In an appeal of a criminal case from the county court, the district court sits as an intermediate court of appeals. 1 Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. 2 When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3 [4-6] In considering a claim of insufficient evidence, an appellate court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. 4 Such matters are for the finder of fact. 5 Absent prejudicial error, a conviction will generally be affirmed so long as the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the elements of conviction See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021). Id. See id. See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021). Id. - 708 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


19. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and Error. Where an appellant assigns as error the insufficiency of the evi- dence to sustain a conviction under a municipal ordinance, an appellate court will not take judicial notice of a municipal ordinance not in the record, but, instead, may apply the ordinance’s text as reproduced in the State’s long-form complaint. 20. Ordinances: Complaints. Absent anything to the contrary, the language of a city ordinance as reproduced in the State’s long-form complaint is to be given its plain and ordinary meaning. 21. Constitutional Law. Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 22. ____. Speech may take place in a traditional public forum, in a desig- nated public forum, in a nonpublic forum, or on private property. 23. ____. Traditional public forums are those places which are owned by the government and historically associated with expression, such as public streets, sidewalks, and parks, including those which run through residential neighborhoods, whereas designated public forums are those that have not been historically associated with expression but which the government has opened for such use, such as civic auditoriums or public theaters. 24. ____. Nonpublic forums include government-owned property that is not a traditional or designated public forum, such as government offices and military bases. 25. Property: Words and Phrases. Private property is property which is protected from public appropriation, over which the owner has exclusive and absolute rights. 26. Constitutional Law: Public Health and Welfare: <mask>. The police power of a state extends beyond health, morals, and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community, including the power to prevent disturbing noises. 27. Constitutional Law. The right to be let alone is one of the rights most valued by civilized society. The right to avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings. 28. ____. In either a traditional or designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions (1) are content neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. - 703 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


2. Conviction for Assault or Menacing Threats Having determined that Grant’s conviction for <mask> must be affirmed, we next consider his conviction for assault or menacing threats. Grant does not challenge the constitutionality of this conviction, but, rather, he assigns that there was insufficient evidence to support this conviction. We disagree. [31] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 46 Our analysis would generally begin with the language of the ordinance that Grant was convicted of violating. 47 But, again, the defendant has failed to include the ordinance at issue in the record, so we may not consider that ordinance’s text. 48 We must instead apply the ordinance’s text as reproduced in the See State v. Estrada Comacho, supra note 4. See In re Interest of Elainna R., supra note 28. See State v. Buescher, supra note 29. - 717 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


The second factor, whether the alleged offense included violence, the evidence is undisputed that it did. Lohman is alleged to have struck the victim from behind with some type of metal rod. This factor weighs in favor of retention. Lohman claims that the third factor, motivation for the offense, weighs in favor of transfer because he was acting in defense of his brother when he struck the victim. He describes the motive as “a typically juvenile motivation. A dispute over a girl.” The district court acknowledged Lohman’s reason for striking the victim, but also recognized that other witnesses indicated that the victim was not engaged in the fight prior to being struck by Lohman. The court described the motivation as “muddled” but concluded it weighed in favor of retaining jurisdiction. We find no abuse of discretion in this finding. Given Lohman’s close proximity to his 18th birthday, the district court reasoned that the time during which the juvenile court would have jurisdiction over him was “rapidly coming to an end.” Therefore, because of Lohman’s age and the circumstances of others involved in the offense, this factor weighed in favor of retention. Lohman argues that since the participants were between the ages of 16 and 18 years of age and had apparently gone to the park to fight, “the ages of the participants supports the transfer of this case to the juvenile court.” Brief for appellant at 21. We disagree, and find that Lohman’s age weighs in favor of retention. One of the most influential factors for retaining jurisdiction is Lohman’s previous history with the juvenile court system. Although Lohman refers to his prior juvenile adjudications as involving “relatively minor offenses,” the evidence supports the district court’s characterization of them as “regular and consistent involvement” with the court. His prior brushes with the law include charges for criminal mischief (damaging the hood of an automobile causing damage of $0-$500), minor in possession, including marijuana and drug paraphernalia, theft (which was ultimately dismissed), possession of marijuana and drug paraphernalia, another charge of theft, criminal mischief with damage between $501 and $1,499, and terroristic threats, amended to <mask>. As a result of these adjudications, Lohman has had a myriad of services provided to him, yet his actions continue to escalate. This factor weighs in favor of retention. The district court found that consideration of public safety and Lohman’s ability to appreciate the nature and seriousness of the crime both weighed in favor of retaining jurisdiction. Considering the fact that Lohman went to the park with a weapon and given his prior experience with the juvenile court, we agree with the district court that public safety is a concern and that Lohman had an appreciation of the consequences of his action and the danger that it posed. Lohman argues that because the altercation involved a female acquaintance, there “is no evidence that [Lohman] is out, wandering the streets of Sidney looking for his next victim.” Brief for appellant at 26. However, given the escalating nature of Lohman’s aggressive behavior, it is uncertain as to who, or what, may next set him off. These factors weigh in favor of retention. The only factor that the court found weighed in favor of transfer was a consideration of Lohman’s best interest, but recognized that it “is difficult to readily evaluate” his best interests. The remaining factors it found either neutral or irrelevant to the facts of this case. After considering all of the evidence, given the services which have already been provided to Lohman, the violent nature of the offense, Lohman’s age and previous history with the juvenile court system, and the need for public safety, we find no abuse of discretion in the district court’s order denying transfer of Lohman’s case to the juvenile court.


listed in Family Code section 6230, subdivision (a)(4)—provided that the events occurred within five years of the charged offense. Thus, encompassed within the meaning of “offense involving domestic violence” in section 1109 is an offense involving conduct constituting <mask> of the victim. Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial court erred in instructing the jury on the use of prior violent acts evidence to prove that offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited exception to the general ban (under Evid. Code, § 1101) against using prior acts to infer the defendant’s disposition to commit the charged acts, and permits such evidence as the basis for such inference if the defendant is accused of a crime involving domestic violence within the meaning of section 13700.” (Id. at p. 770, italics added.) The defendant in Zavala further asserted that “to the extent the stalking offense does not require that the threat induced the victim to fear great bodily injury or death, stalking is concomitantly not a crime of domestic violence (as defined by [Penal Code] section 13700) and therefore the prior violent acts evidence may not be used by the jury to infer Zavala had a disposition the type of which made it likely he committed the stalking offense.” (Id. at pp. 770-771.) The Fourth Appellate District, Division One, without further analysis or explanation, “agree[d] it was error to give the [section 1109] instruction as to the count charging Zavala with stalking.” (Id. at p. 771.) Approximately five years later, the Second Appellate District, Division Six, decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney General relies. The appellate court in Ogle declined to follow Zavala and essentially rejected the same arguments defendant makes here. In Ogle, the defendant asserted that his prior conviction for stalking should not have been admitted to prove his propensity to commit the charged criminal threats because stalking was not domestic violence within the meaning of section 1109. (Ogle,


Village Ordinance 1.3(b) provides: “ Ordinance 1.3 — <mask>. No person shall indulge in disorderly, or *558noisy or disturbing conduct within the Village. Any person who commits any of the following acts will be considered in violation of this provision: * * * (b) Acts in such manner as to annoy, disturb, interfere with, obstruct or be offensive to others.”


really intended to incorporate all forms of abuse that fall within the broader Family Code definition.” (Ogle, supra, 185 Cal.App.4th at p. 1144.) We reject that argument, as did the Ogle court. (Ibid.) Section 1109 clearly and unambiguously incorporates the Family Code definitions of domestic violence and abuse without the limitation urged by defendant. 6 (Ogle, at p. 1144.) As was the case in Ogle (Ogle, supra, 185 Cal.App.4th at p. 1143), the Family Code definitions of domestic violence and abuse apply here because defendant’s prior conduct at issue occurred within five years of trial. (§ 1109, subd. (d)(3).) Consequently, the prior incidents at issue here qualify as domestic violence within the meaning of section 1109, as defined in Family Code section 6211. In each of the instances, a restraining order was in place against defendant. In each instance, defendant came to the house where defendant’s mother and brother lived in violation of the effective restraining order and committed acts which, at the least, would constitute conduct <mask> of the victims. (Fam. Code, §§ 6211, 6203, 6320.) As noted, disturbing the peace for purposes of this Family Code provision means “conduct that destroys the mental or emotional calm of the other party.’ ” (Sorden, supra, 65 Cal.App.5th at p. 601; Nadkarni, supra, 173 Cal.App.4th at p. 1497.) This brings us to the question of whether the prior acts evidence was admissible to prove the burglary count, an issue not addressed in any published case. The prosecutor advanced two theories as to defendant’s intent when he broke into the family home


DCFS then learned of Mother's criminal history spanning from 1993 until as recently as late 2017. In October 2017, six months before the DCFS referral, Mother was arrested and charged with driving under the influence (DUI) of alcohol and reckless driving. As a result, she was convicted of reckless driving. Six months earlier, in March 2017, Mother had been arrested and charged with another DUI and *356convicted of an unknown misdemeanor offense. In 2013, she was arrested for possession of paraphernalia and battery on a police officer; she was convicted of the latter charge. In 2005, she was convicted of <mask>. In 1996 and 1997, she successfully completed diversion after being charged for possession of controlled substances. In 1993, she was charged with resisting arrest and convicted of presenting false identification to a peace officer.


The petitioner said that when Officer Williams arrested him in this case, the officer told him that he “fit the description of someone hav[ing] something to do with a robbery” and that he was taking him in for an identification. The petitioner said that, at the police station, he was placed in an interview room and that he identified himself from a photographic array, at which point he saw Detective Frias make a copy of the photograph and “circle my face twice.” Detective Frias then told the petitioner that he was under arrest. The petitioner said that when he told Officer Williams that he was not involved in the robbery, the officer “told me, we know you didn’t do nothing, prove it to the judge.” The petitioner said that he told all of this to trial counsel but that counsel never sought a copy of the citation for <mask> that Officer Williams gave him. The petitioner said that he wanted trial counsel “to let the [c]ourt know that Officer D. Williams threatened me with this” but that counsel “went about my case trying to prove where I was at the time of the crime.”


In the present case before this court, proof has been submitted by the People that the Hilton Curfew Law was passed with a more specific governmental interest in mind — that is, to curb disturbances and vandalism caused by minors, and also to protect the children of the municipality. (See Hilton Village Code § 5-2.) As submitted in the affidavit of Village Manager Janet Surridge and the affirmation of Village Attorney Lawrence Schwind, it appears that the impetus behind the Hilton Curfew Law was an ongoing issue with minors <mask> and engaging in vandalism after dark. The Village Board received numerous complaints from village residents and reports from the Monroe County Sheriffs Department about minors in the village. In short, the aim of the Hilton Curfew Law was to curb specific behavior perpetrated by minors in particular. The proof offered in support of the Hilton Curfew Law is hardly scientific in nature, but as the United States Supreme Court has held, the Village need not prove the relationship between its curfew and its stated goals with scientific certainty. (See Ginsberg v New York, 390 US 629, 642-643 [1968].) In showing a substantial nexus between the burdens imposed by the Hilton Curfew Law and the goals of protecting minors and preventing juvenile crime, the Supreme Court has explained that although the government need not produce evidence of this relationship to a scientific certainty (see Ginsberg at 642-643), the “purpose of requiring [proof of] that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than mechanical application of traditional, often inaccurate, assumptions.” (City of Rochester, 13 NY3d at 48, quoting Mississippi Univ. for Women v Hogan, 458 US 718, 725-726 [1982].) The proof also offered to this court demonstrates that the Hilton Curfew Law was enacted in response to complaints about minors specifically and there is no question that “the population targeted by the [curfew] represents] that part of the population causing trouble.” (Id. at 49.)


J.G. participated in a fist fight at his school and, when a teacher tried to stop the fight, used a racial slur against that teacher. He called the teacher a "nigger." He admitted in juvenile court that he committed the misdemeanor of <mask> on school grounds. ( Pen. Code, § 415.5, subd. (a)(1).)1 The juvenile court judge granted probation on several conditions, including the condition that his electronic devices would be subject to *1087search. Appellant contends the electronic search condition bears no relationship to his offense and is unconstitutionally overbroad. We affirm.


this mediation may be verified outside of the mediation process and used as evidence in subsequent legal proceedings.” (Italics added.) The mediation agreement itself also specifically provides, immediately above the signature line, that “this written settlement may be disclosed in a court of law. Upon disclosure, this agreement may be admitted as evidence and/or enforced as determined to be appropriate by the court.” Thus, the parties’ agreements as a whole counsel against an expansive reading of the nondisparagement clause. Second, the mediation agreement is inextricably linked to the broader context in which it was negotiated — i.e., in a proceeding for a civil harassment restraining order. This context is critical. (See Civ. Code, § 1647 [“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.”]; id., § 1648 [“However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”].) Such a proceeding is statutorily designed to narrowly focus on interpersonal conflict. Its purpose, when warranted by the circumstances, is to prevent threatened future injury through a resulting “order enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or <mask> of, the petitioner.” (§ 527.6, subd. (b)(6)(A).) The narrow focus of these proceedings is communicated to petitioners through instructions issued by the Judicial Council.


(b) Sentencing The presentence investigation (PSI) report considered by the court prior to sentencing was 400 pages. It showed as Blake’s adult criminal history a recent conviction in another case, case No. CR 18-846, for attempted first degree sexual assault, the conviction for assault in case No. CR 19-914 that was part of the plea bargain agreement, two prior convictions for third degree assault, and a conviction for <mask>. Blake had earned his diploma through the GED program and completed a “DBT skills program” while incarcerated. A review of misconduct reports showed Blake “routinely violates the rules.” Blake described himself as a “sex addict.” However, he denied having committed the attempted sexual assault for which he was being sentenced. The PSI report demonstrated that Blake has been diagnosed with adjustment disorder, adolescent antisocial behavior, mood disorder, “ADHD,” borderline intellectual functioning, post- traumatic stress disorder, schizophreniform disorder, and oppo- sitional defiant disorder. An evaluation completed in November 2019 showed Blake was in the “very high or high-risk range” to reoffend. The PSI report showed Blake had become a state ward at the age of 9. Blake reported he was physically abused by his father and had experienced sexual abuse in some of his out-of-home placements. Before his removal from his parents’ home, Blake “walked in on [his parents] having sex ‘all the time,’” because they did not lock their door and he did not have his own room. In his placements as a juvenile, Blake had a history of inappropriate sexual behavior toward younger peers. This - 778 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BLAKE Cite as 310 Neb. 769


*627In a brief argument, David states that Joannie's "reading and disclosure of David's private text messages was also abuse," that it was "<mask> under the" Act. The argument is based on Joannie's admitted reading through some 20 text messages, and her talking to her four close friends about them. The trial court found this was not harassment. Properly so.


An elder who has suffered abuse may petition the superior court for an order "enjoining a party from abusing, intimidating, ... threatening, ... harassing, ... or <mask> of, the petitioner." (§ 15657.03, subds. (a)(1), (b)(4)(A).) The petitioner has the burden to prove a past act of elder abuse by preponderance of the evidence. ( Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1139-1140, 67 Cal.Rptr.3d 2 ( Bookout ).)


State’s evidence, and Grant’s presentence investigation report. According to Grant’s presentence investigation report, Grant was 50 years old at the time of sentencing and had a criminal history dating back to his youth, including convictions in 1996 for third degree assault and in 1987 for attempted burglary. Grant also had recent minor traffic offenses. He had dropped out of high school during the 11th grade, and then for about 2 years, he had been part of a criminal gang. Throughout his life, Grant had struggled to maintain steady employment and was currently unemployed. He reported maintaining few healthy relationships throughout his adulthood. After reviewing this evidence, the county court ordered 10 days in jail for each conviction, to run concurrently, noting that “any less sentence this Court would impose would depreciate the seriousness of the offense and promote disrespect for the law.” Despite Grant’s emphasis on his positive achievements, the record provides a sound basis for the sentences imposed. Accordingly, Grant’s convictions and resulting sentences were not in error. V. CONCLUSION For the reasons explained above, we affirm Grant’s con- victions for <mask> and for assault or menacing threats and find that the resulting sentences were not an abuse of discretion. Affirmed.


Heavican, C.J. The appellant, Kenneth W. Grant, Jr., accused of shouting in a loud, menacing, and persistent manner from his apart- ment’s balcony at persons across the street, was convicted of <mask> and of assault or menacing threats, both in violation of city ordinances in Lincoln, Nebraska. He asks us to overturn those convictions and their resulting 10-day jail sentences. We do not analyze whether Grant’s speech included fight- ing words or true threats, because even if Grant’s speech was protected, we conclude the State may regulate it through reasonable restrictions on the time, place, and manner of speech. Thus, we affirm Grant’s 10-day jail sentence for that conviction. We find that Grant’s conviction for assault or menacing threats was supported by sufficient evidence. We also affirm that conviction.


In Cox v. Louisiana (supra) appellant, a leader of approximately 1,500 students who had peacefully demonstrated in the vicinity of the Baton Rouge Court House, against discrimination generally and particularly the jailing of 23 fellow students subsequently refused a Sheriff’s order to break up the demonstration as it was about to move uptown to several luncheon counters to protest discrimination there by means of a sit-in. Tear gas dispersed the demonstrators, and the following day appellant Cox was arrested, and later convicted of <mask>, obstructing public passages and picketing before a court house. The court, in reciting the facts, pointed out that the entire demonstration was orderly and peaceful and there was no obstruction of traffic. There was further evidence that the police had condoned the demonstration at the courthouse so long as the group remained on the “ west sidewalk ” and that Cox had kept them there. The only evidence of potential unrest was some “ muttering and grumbling ” by some whites as Cox spoke of the “ illegal arrest ” of the 23 students and then asked the crowd to move uptown to the lunch counters and sit in for an hour if they were refused service.


Under section 213.5, subdivision (a), after "a petition has been filed ... to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated," a juvenile court may issue an order "enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, ... destroying the personal property, contacting, ... or <mask> of the child ...." The subdivision also permits the court to issue orders including the child's parent as a person protected from the behaviors listed above.


beyond a reasonable doubt. 6 Whether the conduct at issue was constitutionally protected, however, is a question of law, and an appellate court will therefore review the district court’s rul- ings on those issues de novo. 7 [7,8] Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. 8 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 9 IV. ANALYSIS 1. Conviction for <mask> Grant assigns, first, that his conviction for disturbing the peace was in error because the speech underlying his convic- tion was protected by U.S. Const. amend. I and Neb. Const. art. I, § 5. Grant argues that because his speech was protected, it could not be criminally proscribed. Grant does not claim his conviction for assault or menacing threats is unconstitutional; hence, we need not consider it in any constitutional analysis. [9,10] The 1st Amendment to the U.S. Constitution, appli- cable to the states via the 14th Amendment, 10 provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech . . . .” Similarly, under the Nebraska Constitution, “[e]very person may freely speak . . . on all sub- jects . . . .” 11 We have recognized that the “‘parameters of the constitutional right to freedom of speech are the same under See id. See, Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014); State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010). See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). Id. NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018). Neb. Const. art. I, § 5. - 709 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


In addition to the foregoing, the plaintiff asserts that she was subjected to verbal <mask> while performing her duties in Dr. Stein’s medical office. In this connection, Ms. Goldman avers that, “at least two (2) to three (3) times a day,” she was the subject of remarks made by Dina Stein’s mother (Dr. Stein’s mother-in-law), Rachel Reichmann (named herein as Jane Doe) as follows: “oh you can’t do anything all you do is sit like a glump” and “you are so fat, so heavy.” Ms. Goldman asserts that such comments created a hostile work environment and that such comments were condoned by Dr. and Mrs. Stein insofar as they did not repudiate them nor did they discipline Mrs. Reichmann for intoning such remarks.


This prosecution for second degree criminal contempt (Penal Law § 215.50 [3]) and second degree <mask> (Penal Law § 240.26 [1]) is founded upon allegations that defendant verbally harassed the complainant on May 7, 1996 and July 28, 1996, and pushed the complainant during the July 28th incident in violation of separate orders of protection. These orders were issued without any hearing to establish their truth. The only direct evidence inculpating the defendant was the complainant’s own testimony. A potential witness to the July 28, 1996 incident, then employed by the complainant as a babysitter, was not called to testify. It appears she did testify in the Supreme Court action.


"The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale * * * "No judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified *281physician” (3A Wigmore, Evidence § 924a, at 736-737 [Chadbourn rev 1970]; italics deleted). Fortunately, the Wigmore position does not now seem to be accepted in any jurisdiction (Government of Virgin Is. v Scuito, 623d 869). Social and legal considerations that weigh heavily against ordering a complainant to undergo psychiatric examination in a sex case include the concepts that: (a) forced psychiatric examination may seriously impinge on a witness’ right to privacy; (b) the trauma that attends the role of complainant to sex offenses is sharply increased by the indignity of a psychiatric examination; (c) the examination itself could serve as a tool of <mask>; and (d) the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all (Government of Virgin Is. v Scuito, supra; United States v Benn, 476d 1127, 1131).


*417Rose argues that there was insufficient evidence to convict him of <mask>. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Castrellon v. State , 2013 Ark. App. 408, 428 S.W.3d 607. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Armour v. State , 2016 Ark. App. 612, 509 S.W.3d 668. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Reese v. State , 2018 Ark. App. 336, 552 S.W.3d 47. We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Id. Decisions regarding the credibility of witnesses are for the trier of fact. Robinson v. State , 353 Ark. 372, 108 S.W.3d 622 (2003). The fact-finder is not required to believe any witness's testimony, especially the testimony of the accused, because the accused is the person most interested in the outcome of the trial. Mooney v. State , 2009 Ark. App. 622, 331 S.W.3d 588. With these standards in mind, we turn our attention to the evidence presented at trial.


Accepting the defendant’s argument would require acceptance of the proposition that the alleged later-in-time verbal threat was necessarily an integral part of the intent involved *359in the earlier allegation of <mask>. At the first trial the defendant was acquitted of harassment by letter. The alleged act of verbal abuse submitted to the jury on the intent issue was considerably separate in time from the writing of the December and February letters. Thus, even though the defendant may have been found not to have had the intent to harass by letter, it is entirely possible that a fact finder may reach the conclusion that the defendant intended at a later point in time to violate the order prohibiting harassment of the complainant. Moreover, such determination would not conflict with the possible determination made by the earlier panel that defendant did not have the intent requisite to convict on the aggravated harassment charge.


of the petitioner treat a petition for a sexual assault protection order as a request for a domestic abuse protection order or <mask> protection order, fulfilling the requirements of the amended § 28-311.11, it did not make clear to Juan that such action was applicable where an ex parte protection order had already been entered against him. Instead, the forms served upon Juan seemed to indicate that such action was applicable only if the judge had set the petition for hearing to allow the parties to present evidence prior to issuing an order. As a result, this notice did not reasonably inform Juan of the subject and issues involved in the proceeding.


26. Hearsay. Statements offered to show their effect on the listener are not hearsay. 27. ____. Statements are not hearsay to the extent they are offered for con- text and coherence of other admissible statements and not for the truth or the truth of the matter asserted. 28. Witnesses: Impeachment: Prior Convictions. The basic premise underlying impeachment of a witness by evidence of a prior felony conviction is that any past felony committed by the witness is to some degree relevant to that individual’s credibility. 29. Witnesses. Credibility of a witness is not at issue when the truth of the assertions are not in dispute. 30. Judges: Evidence: Appeal and Error. The exercise of judicial dis- cretion is implicit in determinations of relevancy, and a trial court’s decision regarding relevancy will not be reversed absent an abuse of discretion. 31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guar- antees an opportunity for effective cross-examination, but not in what- ever way or to whatever extent the defendant might wish, and trial judges retain wide latitude to impose reasonable limits on such cross- examination based on concerns about, among other things, <mask>, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. 32. Effectiveness of Counsel: Proof. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 33. Effectiveness of Counsel: Presumptions. In assessing deficiency in counsel’s performance, a court presumes that counsel rendered adequate assistance and made all significant decisions in the exercise of reason- able professional judgment. 34. Effectiveness of Counsel. Trial counsel’s decisions that amount to rea- sonable trial strategy do not constitute deficient performance. 35. ____. Decisions about whether to engage in cross-examination, and if so to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim. 36. Effectiveness of Counsel: Appeal and Error. An appellate court does not use perfect hindsight to criticize unsuccessful trial strategies or second-guess trial strategy. 37. Expert Witnesses: Words and Phrases. An expert does not have to couch his or her opinion in the magic words of reasonable certainty, but it must be sufficiently definite and relevant to provide a basis for the fact finder’s determination of a material fact. - 395 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


Moreover, the Court's definition of "harass" actually narrows the statute unduly by reading a repetition element into the statute that the language does not require. As explained above, not all definitions of "harass" require repetition. If the legislature had intended to require repeated communications, it could have easily specified that, as it did in the telephone <mask> statute.19 A repetition requirement would also seem inconsistent with the pairing of "harassing" with "threatening" in the protective-order statute, because repetition is clearly not required for a communication to be "threatening."20 Although repetition may generally be necessary to show the harassing nature of communication, under any reasonable understanding of "harassing manner," a single unwanted communication, if severe enough, could qualify (e.g., calling the complainant at 3:00 a.m. to tell her, untruthfully, that her house was burning down). And if repetition is not required, then "substantial emotional distress" again becomes a necessary marker for "harassing manner."


*713Rudow’s reliance on the fact that there were no firsthand witnesses to the incidents of sexual <mask> is similarly misplaced, since, as the Court of Appeals has noted “ ‘One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which “subtleties of conduct * * * play no small part”.’ ” (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d, at p 209.) Nor does Alvarez’s failure to produce as witnesses the professionals whose aid she sought seriously detract from her claim.


The motion was supported by declarations from three attorneys representing certain current and former PG&E employees who were witnesses or potential witnesses in the Camp Fire investigation. Attorney Britt Evangelist declared that she represented a number of current or former PG&E employees in low- to mid-supervisory roles in the company, who were witnesses or potential witnesses in the Camp Fire investigation. Evangelist grouped her clients into two categories that corresponded to the first two of the eight categories described in the motion. She described seven clients in the first category, all of whom lived in or near the area affected by the Camp Fire. Evangelist described three clients in the second category. The geographic location of these employees was not included in their descriptions. Evangelist declared that the majority of her clients in the first category “who live and work in the Table Mountain and/or Camp Fire region have either experienced <mask> of some sort firsthand or have knowledge of close co-workers or family members who have.” According to Evangelist, these PG&E employees had taken steps to hide that they work for PG&E, only telling friends and family and not wearing their PG&E uniforms in restaurants and public places. One client did not use his company vehicle for a year after the fire to avoid harassment. Evangelist set forth specific examples of harassment experienced by these local PG&E employees including: cars slowing down for the occupants to yell insults and obscenities; a confrontation with the driver of a pickup truck where the client feared for his safety; neighbors and others making obscene gestures at her clients when they drove PG&E vehicles; a PG&E truck being egged in front of an employee’s home; signs in stores or restaurants that PG&E employees were not welcome; construction or other work requiring a police or security escort on the property of certain customers; and the driver of a vehicle coming on to a PG&E construction site, pointing a gun out the window, firing and driving off.


Defendant’s answer alleges lack of personal jurisdiction and lack of subject matter jurisdiction. In addition, defendant asserts counterclaims seeking recovery for retaliatory eviction, breach of warranty of habitability, <mask> and abuse of process. In April 1985, plaintiff served a demand for a bill of particulars with respect to the above. In July 1985, defendant consented to an order precluding her from proving the counterclaims unless she served the bill within 45 days. Since the 45-day period has passed, the counterclaims should be dismissed as abandoned.


Brooks and Dobbs-Weinstein do not support defendant's assertion that plaintiff "did not experience an adverse employment action." Brooks was a retaliation case, and the plaintiff "allege[d] that her performance review was downgraded from 'satisfactory' to 'needs improvement' because of her complaint about [an episode of sexual <mask> by a coworker]." ( Brooks, supra, 229 F.3d at p. 929.) The court observed that "an undeserved negative performance review can constitute an adverse employment decision." ( Ibid. ) But in Brooks , the evaluation "was not an adverse employment action because it was subject to modification by the [employer]." ( Id. at pp. 929-930.) (The plaintiff had refused to accept the review and submitted a written appeal to her employer, expressing her view that the evaluation was intended to retaliate against her for complaining about the coworker's harassment. While her employer was considering her appeal, the plaintiff "left work and never returned." ( Id. at p. 922.)) The court concluded that, "[b]ecause the evaluation could well have been changed on appeal, it was not sufficiently final to constitute an adverse employment action." ( Id. at p. 930.)


Dissenting, Judge W. Fletcher wrote that, while the physical location of the <mask> can be an important indicator of a school’s control over the “context” of alleged harassment, the key consideration is whether the school had disciplinary authority over the harasser in the setting in which the harassment took place. Judge W. Fletcher wrote that an off-campus residence paid with scholarship funds that Brown’s former boyfriend received from the university, and where students reside with permission of the school, is such a setting. Accordingly, the university had control over the “context” in which Brown was assaulted.


The pro se plaintiffs move for a protective order (1) to have a Judge or Referee appointed to supervise disclosure, (2) to order that the party who takes a deposition bear the expenses thereof, (3) against defendants’ “<mask>, abuse, false innuendos, and prejudice, etc.”, and (4) to suppress the deposition of plaintiff Urmas Mollerson, or improperly or irregularly taken information from the deposition; for an award of compensatory and nominal damages for intentional infliction of emotional distress and defamation; for a determination whether inquiry as to the pro se plaintiffs’ personal backgrounds is relevant; to compel disclosure and impose CPLR 3126 penalties; to order defendants in action No. 1 to pay the pro se plaintiffs’ litigation expenses, including those for serving and copying fees, and transportation costs; and to order those defendants not to bring up the issue of whether one pro se plaintiff wrote all of the papers for all of the pro se plaintiffs to sign. City Defendants cross-move to suppress the handwritten transcript of the deposition of plaintiff Urmas Mollerson and for leave to amend their answer to assert defenses of the Statute of Limitations, failure to exhaust administrative remedies, and res judicata. The pro se plaintiffs cross-move to deny City Defendants’ cross motion. Plaintiffs in action Nos. 2, 3, 7, and 9 move to consolidate action Nos. 2 through 9 for purposes of discovery and a joint trial, and to sever action No. 1 for all purposes. No one opposes the consolidation branch of the motion and only the pro se plaintiffs in action No. 1 oppose the severance part of the motion.


*160According to Siegel, Practice Commentary (McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:15, at 736), “[t]he automatic ‘on the merits’ label that appends to a discontinuance by notice in the second action when a previous discontinuance has been had by any method is another step designed to protect the defendant from <mask>. When it is clear that the plaintiff has no harassment in mind in discontinuing the second action by notice, but only a legitimate purpose to effect, the ‘on the merits’ label will be held not to attach.”


However, even where trial courts have made such spe- cific findings, they should be attentive to potential issues of due process. [6] First, we have previously stated that the legal theories supporting either a sexual assault, domestic abuse, or harass- ment protection order are significantly different from one another and each require different offerings of proof. 27 For example, a domestic abuse protection order requires proof of abuse between family or household members. 28 A <mask> protection order requires proof that the petitioner was seriously terrified, threatened, or intimidated, for no legitimate purpose, as a result of a knowing and willful course of conduct by the respondent. 29 And a sexual assault protection order requires proof that the petitioner was subjected to sexual contact or penetration by the respondent without consent. 30 Despite the different offerings of proof required to support entry of any of these types of protection orders, the court, per the amended statute, is allowed to sua sponte change theories after the close of evidence and at a time when the defendant is no longer able to respond or present a defense regarding the newly selected theory, as long as it gives a good reason on the record. 31 Accordingly, the only way that a respondent in this situation could adequately prepare his or her defense is to prepare to defend against all possible theories that may be raised at a show cause hearing. To uphold our longstanding principles of due process, which embody and require a funda- mental fairness to all parties, 32 courts should ensure, prior to See Linda N. v. William N., supra note 11. See §§ 42-903(1) and 42-924 (Cum. Supp. 2020). See Neb. Rev. Stat. §§ 28-311.02 (Reissue 2016) and 28-311.09(1) (Cum. Supp. 2020). See § 28-311.11(1) and (14) (Cum. Supp. 2020). See § 28-311.11 (Supp. 2019). D.W. v. A.G., supra note 15. Accord In re Interest of Spencer O., 277 Neb. 776, 765 N.W.2d 443 (2009). - 766 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


"Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq. ) ( [t]itle IX), applicable to universities receiving any federal financial assistance, requires institutions of higher education to address discrimination on the basis of sex." (Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1215, fn. 2, 241 Cal.Rptr.3d 146.) At all relevant times, CSUSM had a designated title IX coordinator who also served as the university's discrimination, <mask>, and retaliation administrator. We refer to this person throughout this opinion as the "title IX coordinator."


Metro's actions that Ridley complains of happened both before and after her discrimination complaints. Granted, in some situations, "an escalating pattern of <mask>, or that became worse after the [protected] report" can be indicative of retaliatory motive. Id. Here, Ridley asserts that is exactly what happened, i.e., that Metro's allegedly adverse employment actions escalated after her protected reporting. But, on this record, it is clear that the measures taken with regard to Ridley coincided with a change in her supervisor, not with her reporting discrimination. Because we conclude that Ridley did not establish a prima facie case of retaliation, we sustain Metro's third issue (no causal connection). Given this disposition, we need not reach Metro's first issue (no adverse employment action) or second issue (no constructive discharge).


With respect to the second element of favorable termination, Borja and Bancy argue that, since Pugach was convicted on one count of <mask> in the second degree, the underlying prosecution cannot be viewed as having been terminated in his favor. Although Pugach seeks to have this court ignore the conviction and focus only upon his acquittal on the criminal contempt charge, it may not properly do so. Plainly, all of the charges arise out of and relate to an alleged persistent course of conduct, carried out over a period of time.


and intentionally would take my personal property, mishandle my Epi-Pen with intent to break it, make inappropriate noises and comments about the Epi-Pen’s shape and my use of it. I reported to [AHS band director] Nathan Carter numerous times that [J.F.] was bullying me, that he was taking possession of my personal belongings including the Epi-pen, threatening to break my Epi-pen, and damaging my purse. I reported to Mr. Carter that [J.F.] was name-calling and would use his body to make inappropriate movements. I asked Mr. Carter to make [J.F.] stop. Mr. Carter did not do anything to stop [J.F.] and the bullying continued. These allegations, however, describe only generalized bullying and do not suggest that AISD staff had knowledge that J.F. was engaged in the kind of <mask> “on the basis of sex” with which Title IX is concerned. They do not create a genuine dispute of material fact as to AISD’s actual knowledge of sexual harassment. See I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 377 (5th Cir. 2019) (student telling administrators that she was “severely bullied” did not put them on notice of sexual harassment); Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008) (student telling administrators that boys were “bothering her” did not put staff on notice of sexual harassment). Even if we construe the references above to “inappropriate” comments by J.F. as describing sexually suggestive remarks, Title IX does not impose liability on school administrators based on their knowledge that a student made remarks “merely tinged with offensive sexual connotations.” Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (quoting Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002)). Nor does Ruvalcaba’s reliance on R.M.’s claim (recounted secondhand in Jaso’s statement) that J.F. was spreading sexually suggestive


“That being the case, defendant’s arrest was not *496‘authorized,’ nor did her striking his arm in reaction to the officer’s attempt to detain her constitute <mask>. “ . . . Penal Law § 35.27, as its title indicates, is concerned with the defense of justification and does not amend Penal Law § 205.30 to make resistance to an unauthorized arrest an offense” (People v Peacock, 68 NY2d 675, 677 [1986]). The judgment of the Wheatland Town Court, entered August 24, 2016, dismissing the charges is hereby affirmed and the People’s appeal is dismissed.


Carolyn E. Demarest, J. Defendant Hector Dieppa stands convicted upon a jury verdict of two counts of discrimination as defined in subdivision (2) of Civil Rights Law § 40-c and one count of aggravated <mask> in the second degree (Penal Law § 240.30 [3]) arising out of two separate incidents on January 10, 1992 and *585February 6, 1992, in which the defendant either physically attacked or verbally threatened the life of the complainant Abdul Ghaffor Mohibi, an employee of a fast food store located on Eastern Parkway in Kings County.


The main article was published under the headline “Handcuff Principal is Probed”. It reported that the Board of Education was investigating Jee in connection with charges of corporal punishment and other misconduct at the school and that Jee had been removed from control of the Livingston School by the Superintendent of Schools for Special Education. The alleged misconduct on Jee’s part included the handcuffing of students, <mask> of teachers and the diversion of school resources, such as books and computers, for the possible operation of a private money-making enterprise known as Livingston Enterprises.


In August 2012, Hurley accepted an SSA position at DPR's Monterey location. On October 17, 2012, Hurley filed a complaint, alleging causes of action against both DPR and Seals for: (1) <mask> based on sex and sexual orientation in violation of FEHA; (2) retaliation in violation of FEHA; (3) IIED; and (4) NIED. It also alleged causes of action against DPR for: (1) failure to prevent harassment based on sex and sexual orientation in violation of FEHA; (2) employment discrimination based on sex and sexual orientation in violation of FEHA; (3) failure to remedy harassment in violation of FEHA; and (4) negligent hiring, retention, and supervision. On April 29 and 30, 2013, during the course of discovery in this case, Seals's counsel delivered to Hurley over 9,000 pages of documents, including the supervisory drop file that Seals had retained after her retirement and given to her (Seals's) counsel. On or about December 20, 2013, Hurley filed a motion for leave to file a first amended complaint, which would add causes of action against Defendants for: (1) invasion of constitutional *225right to privacy; (2) invasion of privacy by public disclosure; (3) breach of medical confidentiality; and (4) violation of the IPA. On that date, the trial court granted Hurley's motion for leave and her first amended complaint was filed. The court subsequently granted in part DPR's motion for summary adjudication and dismissed the causes of action against DPR for IIED, NIED, and negligent hiring, retention, and supervision. The court denied Seals's motion for summary adjudication on the four privacy causes of action.


The DVD that was introduced through Captain Torraca showed the incident in *270the jail, and the circuit court watched the video and relied on it in reaching its decision to revoke Caldwell's SIS. The DVD, therefore, is an item that is "essential for the appellate court to understand the case and decide the issues on appeal" and is thus required to be in the addendum. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). Caldwell's addendum, however, contains only a photocopy of a photograph of the DVD, not the disc itself. We must therefore order Caldwell to submit a supplemental addendum that includes a physical copy of the DVD. See Fennell v. State , 2015 Ark. App. 523, at 2, 2015 WL 5734394 (ordering rebriefing where the appellant challenged the sufficiency of the evidence supporting his <mask> conviction, and a DVD-which was not included in the addendum-included appellant's exchanges with the victim-witnesses at the event where appellant was alleged to have committed harassment). Caldwell shall have seven calendar days to submit the supplemental addendum. Ark. Sup. Ct. R. 4-2(b)(4).


Wassmann filed this lawsuit in December 2013 after receiving the right to sue notice from the DFEH. The second *723amended complaint asserted six causes of action: (1) age discrimination, (2) racial discrimination-disparate treatment, (3) <mask> (hostile environment), (4) wrongful termination, (5) intentional infliction of emotional distress, and (6) unfair business practices. The first, second, fourth and sixth causes of action were against only the District Defendants. The third and fifth causes of action were against all Defendants. Wassmann alleged that, as a proximate result of Defendants' discriminatory conduct, she suffered: (1) loss of employment and employment benefits; (2) loss of "employment-related opportunities;" and (3) "humiliation, mental anguish, emotional and physical harm."


With respect to petitioner’s demand for records showing who was on duty in the LDU on the dates in question, the hospital argues that “without the appropriate showing of relevancy it can be deemed as a potentially <mask> tactic.” (Russo affirmation U 7.) The material is relevant as a record of potential witnesses, and with respect to petitioner’s defense that someone else is responsible for the manner in which morphine was administered or accounted for. Therefore, it must be produced.


When the court decided Carrisales, former section 12940, subdivision (h)(1) provided: "It shall be an unlawful employment practice ...: [¶] ... [¶] For an employer ... or any other person, because of ... sex, ... to harass an employee [or] applicant. ... <mask> of an employee [or] applicant ... by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring." (See Carrisales, supra, 21 Cal.4th at p. 1135, 90 Cal.Rptr.2d 804, 988 P.2d 1083.)


Further, “ Section 11a provides that a suit may be stayed which ‘ is founded upon a claim from which a discharge would be a release.’ This dischargeability of the debt, as covered by § 17 of the Act, is made the basis of jurisdiction and there should be no stay granted unless the debt or claim involved will be discharged under the provisions of the Act, even though the claimant is listed as a creditor in the bankrupt’s schedule.” (Collier, Bankruptcy Manual, p. 162.) It is therefore obvious that the purpose of the stay is to prevent the <mask> of a bankrupt or the dissipation of his assets. A stay cannot be obtained for a debt which is not dischargeable, or where a discharge is even debatable. Thus, one could not be available to the bankrupt, in the case at bar, before, during, or after his bankruptcy petition had been filed.


*526" Section 821.6 provides that '[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.' This immunity provision is to be construed broadly so as to further 'its purpose to protect public employees in the performance of their prosecutorial duties from the threat of <mask> through civil suits.' [Citations.] For purposes of this immunity provision, investigations are deemed to be part of judicial and administrative proceedings." ( Strong v. State of California (2011) 201 Cal.App.4th 1439, 1461, 137 Cal.Rptr.3d 249 ( Strong ).)


Defendants interposed four counterclaims against Cortes claiming damages for conversion of money and corporate property for his own purposes, misrepresentation of corporate expenses, breach of the contract to sell his shares to defendants for the sum paid for such shares and various alleged breaches of his duty to perform his duties as manager in a responsible manner. This court dismissed defendants’ first and second counterclaims for conversion and fraud as a matter of law based upon inadequacies in the pleading. In response to plaintiffs in limine motion prior to trial, the court precluded any evidence of sexual <mask> as alleged in the fourth counterclaim as no such evidence had been adduced in response to discovery demands.


The court is also aware that another line of cases has developed which indicates that acquittal on the underlying charges is not a bar to prosecution of a resisting arrest charge. (People v Simms, 36 AD2d 23; People v Santiago, 69 Misc 2d 1098.) In any event, the present case is not directly controlled by either line of cases. We note that in this case there has *121been no adjudication as to the merits of the <mask> charge. The reason for this failure was the refusal of the defendant’s wife to sign the information charging harassment. It appears to this court that a dismissal of the resisting arrest charge merely because of a refusal to prosecute the underlying charge would discourage the efforts of the police in assisting in civilian arrests, as they are required to do by CPL 140.40 (subd 1). Such a result would frustrate the legislative intent apparent in CPL 140.30 and 140.40. The court therefore concludes that the proper inquiry in situations such as the one now before it is whether the underlying arrest was in fact "authorized” at the time it was made. Any subsequent dismissal for failure to prosecute is irrelevant to this inquiry. We therefore now turn to the second theory upon which defendant moves to dismiss.


Professor David Siegel, in his commentary to CPLR 3101 at page 8 of McKinney’s Consolidated Laws of New York (Book 7B) observed: "Acknowledging that the unfettered use of the disclosure devices can in a given instance work to the undue detriment of a litigant with limited resources, or otherwise be used more for the purpose of <mask> and delay than the legitimate ends of litigation, article 31 supplies a device known as a 'protective order’ (CPLR 3103). That provision, which affords the court a wide discretion in preventing abusive resort to the disclosure devices, has general application to all of article 31, and so it, too, should be kept in mind by the lawyer who wants to familiarize himself with the Article’s structure.” (Emphasis supplied.)


submitted from Evangelist detailed incidents of <mask> and threats received by her PG&E employee clients who lived in the community affected by the Camp Fire. Evangelist admitted that her nonlocal PG&E employee clients had not experienced such harassment and threats. Rather, they were concerned because of incidents reported in the media and company bulletins. Kane stated in her declaration that most of her PG&E employee clients were local and many had been subjected to harassment and mistreatment from members of the community due to the fact her clients wore PG&E uniforms and operated PG&E vehicles. Gourse did not identify any of his clients as local. He described two incidents of harassment reported by one client that had occurred since the Camp Fire: one incident involved a PG&E employee being held at gun point that occurred in Napa because of a planned power outage and another incident involved a hostile conversation that may have included an indirect reference to the Camp Fire. PG&E’s exhibit compiling incidents from 2010 through 2020 included only three reports of hostile communications and threats made outside the local community mentioning the Camp Fire. To be sure, of the many incidents since the Camp Fire included in the exhibit, only 13 took place in the counties included in the superior court’s order, but at least four of those involved gunshots at or in the vicinity of PG&E vehicles, and one an encounter with a person who threw PG&E gear in the garbage and caused a PG&E crew to evacuate the area and call the police when the person returned with a gun. Incidents of post-Camp Fire harassment and violence, not just threats, against PG&E employees outside the affected area were not connected to the fire. With respect to PG&E’s Power Point of electronically communicated threats, petitioners have not provided any evidence that these messages, some of which involved threats to murder named PG&E employees, led to any other conduct that posed a risk to a PG&E employee. One message was from an individual who claimed to have collected and intended to publish the personal cell phone numbers of PG&E executives. This


Second. When they have reason to believe that a crime has been committed, they have the power to summon and compel the attendance of any witness and examine him upon all matters that are relevant or material to the subject of inquiry. They have not the power to summon a witness and examine him upen matters that are wholly unconnected with or unrelated to the subject of inquiry. The process of the grand jury can be used only for the purpose of aiding a lawful inquiry, and it must not be used for the purpose of oppression or <mask>.


In this derivative action, plaintiffs, individual and institutional shareholders of W. R. Grace & Co. (Grace),1 assert two causes of action for breach of fiduciary duty against the defendant directors in their amended complaint. The allegations arise out of three separate, but purportedly related, incidents. The first incident involves the payments and perquisites made to former Grace CEO, J. Peter Grace, Jr. (Grace Jr.) beyond that required by his employment agreement, and the efforts of the Board to avoid public disclosure of the terms of those payments. The second incident relates to an alleged misappropriation of Grace funds by J. P. Grace, III (Grace III), in connection with his operation of a Grace subsidiary. The third incident involves J. P. Bolduc, Grace Jr.’s successor as CEO, who resigned after allegations of his sexual <mask> of several employees were apparently substantiated by Judge Harold Tyler, the special investigator appointed by the Board. It is alleged that Bolduc received a substantial and unjustified severance package. The defendants include Bolduc, Grace III, the estate of Grace Jr. and the members of the Board at the time of the incidents.


Mack filed her notice of appeal in propria persona. Because Mack has been found to be a vexatious litigant within the meaning of Code of Civil Procedure section 391.7, subdivision (a), we stayed the appeal and ordered Mack to show "that the litigation has merit and has not been taken for purposes of <mask> or delay." ( Code Civ. Proc., § 391.7, subd. (b).) Instead, Mack retained counsel and substituted retained counsel for herself on March 2, 2017. On June 20, 2017, we discharged the order to show cause "[i]n light of retention of counsel" and reset the briefing schedule.


The unanimous verdicts rendered in favor of plaintiff, Maureen McIntyre (plaintiff), on June 3 and June 4, 1997, on her claims of sexual <mask>, retaliation and intentional infliction of emotional distress and the award by the jury of $6.6 million in damages ($5 million of which were punitive damages) reflect the abhorrence of such behavior by contemporary society. Defendant, Manhattan Ford, Lincoln-Mercury, Inc. (defendant), now moves herein for judgment, posttrial, setting aside the verdicts as a matter of law, pursuant to CPLR 4404 (a) or, alternatively, for a new trial on all issues; or to set aside or substantially remit the jury’s compensatory and punitive damage awards.


they agree not to disparage one another, can lead to liability for statements made in a later unlimited civil lawsuit arising from the same alleged misconduct. II. The parties’ dispute centers on the construction of their mediation agreement, which was reached within the context of a civil <mask> restraining order proceeding. (§ 527.6.) We begin with some background on this specialized civil procedure. The Legislature enacted section 527.6 in 1978 in order “to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.” (Stats. 1978, ch. 1307, § 1, p. 4294; see Cal. Const., art. I, § 1.) The provision was intended to “ ‘establish an expedited procedure for enjoining acts of “harassment” ’ ” in order “ ‘to provide quick relief to harassed persons.’ ” (Smith v. Silvey (1983) 149 Cal.App.3d 400, 405 (Smith).) In the Legislature’s view, “procedures under [then-]existing law” — namely “a tort action based either on invasion of privacy or on intentional infliction of emotional distress” — were “inadequate to remedy the mental and emotional distress suffered by a person,” and “[t]he length of time it takes to obtain an injunction in many cases is too long.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3093 (1977– 1978 Reg. Sess.) as amended June 19, 1978, pp. 1–2.) Section 527.6, subdivision (a)(1) enables a victim of “harassment” to “seek a temporary restraining order and an order after hearing prohibiting harassment.” In its current form, section 527.6 provides “for the issuance of a temporary restraining order without notice . . . on the same day that the petition is submitted to the court” (§ 527.6, subd. (e)) and generally requires the court to hold a hearing on the petition within 21 days (id., subd. (g)).


The patient, Dwayne Doxen, was apprehended in 1991 after a bizarre incident in the subway when he attempted to steal another passenger’s bag, and then threatened and menaced other riders with a carpenter’s saw. He threatened to chop one person’s head off. He was arrested by the police, but pursuant to a plea he was found not guilty by reason of mental disease *328or defect. He was sent to Kirby Psychiatric Center, a secure facility. In July of 1992 he consented to a one-year order of retention, and was transferred to Manhattan Psychiatric Center. Shortly thereafter, he allegedly threatened other patients and staff, and was arrested after hitting another patient over the head with a sock full of batteries. He was arrested, and pleaded guilty to assault in the third degree, and he served six months in jail. Then, having again been found to be dangerously mentally ill, he was recommitted to Kirby. In October of 1993 he consented to a further order of retention and was transferred back to Manhattan State. Based on assessment by the staff, he was granted unescorted privileges. He eloped but returned, and then, in November of 1994, while being taken to court on yet another arrest, he escaped and remained at large until arrested for <mask> and violence against his common-law wife.


A Family Court petition under Family Court Act § 846 is not an “accusatory instrument” as defined by CPL 1.20. (People v Arnold, supra at 595.) The fact that Family Court Act § 812 would have permitted prosecution for aggravated <mask> in the second degree is irrelevant as the proceeding was brought pursuant to Family Court Act § 846. Moreover, as already discussed at great length above, Family Court Act § 846 specifically bars the Family Court from adjudicating the underlying behavior which gives rise to contempt of its orders. Accordingly, this court, in adhering to the plain language of New York’s applicable statutes, finds no bar to this criminal prosecution and the defendant’s motion to dismiss the aggravated harassment in the second degree charges as barred by double jeopardy is dismissed.


It does not matter that Dixon was not on the payroll. Rather if true, it emphasizes the failure to properly supervise and manage the hotel in view of the previous convictions and general poor reputation of the hotel and the area. Section 2324 (subd 3, par [b]) states, "finding of guilt of any person of a violation of section 230.40 of the penal law at such place shall be presumptive evidence of the nuisance”. There was no unfair discrimination practiced by the police. The entire area was policed and there was no showing of undue <mask> on these premises.


‘ ‘ Many substantial complaints concerning fraud upon consumers, undue <mask> of debtors caused by abuse of the venue statutes, abuse of the long-arm statute, and lack of jurisdiction over party defendants (sewer service) have been brought to my attention. This is compounded by the hundreds of thousands of default judgments entered each year many of which are subsequently vacated by the court. Numerous other complaints have been received concerning similar breaches in other commercial actions and torts.


Evidence of post-traumatic stress disorder has supported substantial awards for emotional distress in sexual <mask> cases in federal courts. (See O’Rourke v City of Providence, 235d 713, 733-734 [1st Cir 2001] [$275,000]; Gotthardt v National R.R. Passenger Corp., 191d 1148, 1152, 1155 [9th Cir 1999] [$300,000]; Baty v Willamette Indus., 172d 1232, 1244 [10th Cir 1999] [$300,000 compensatory and punitive]; Lockard v Pizza Hut, Inc., 162d 1062, 1075 [10th Cir 1998] [$200,000].) The amount of the award may reflect evidence of future consequences. (See, for example, O’Rourke v City of Prov*584idence, 235d at 734 [PTSD “probably permanent”].) In cases that have not involved sexual harassment, New York courts have also upheld substantial awards for emotional distress with evidence of post-traumatic stress disorder. (See Blakesley v State of New York, 289 AD2d 979 [4th Dept 2001] [$200,000]; McKay v Ciani, 288 AD2d 587 [3d Dept 2001] [$375,000].)


Defendant repeatedly moved to dismiss the accusatory instrument, arguing that all of the counts were jurisdictionally infirm owing to the lack of sufficient factual averments to establish the offenses and, additionally, that the aggravated <mask> in the second degree statute was unconstitutionally vague and overbroad. The Criminal Court (Lenora Gerald, J.) denied the motions to dismiss, and, in the last of the orders, enjoined the defense “from making any further applications to the court on the issue of facial sufficiency or pursuant to CPL 170.30 and CPL 170.35.”


These defects in procedure, coupled with others previously noted, are so egregious as to infect the entire proceeding with unfairness (see, Matter of Ackerman v Ambach, 142 AD2d 842, supra) of such a magnitude as to have led to substantial prejudice (see, Matter of Rudner v Board of Regents, 105 AD2d 555 [1984]) and a denial of justice (see, Matter of Sowa v Looney, 23 NY2d 329 [1968]), that the hearing process can be seen as nothing but fundamentally unfair and pursued in bad faith. Before the hearing was opened, therefore, Starishevsky’s right to a fair and reasonable hearing pursued in good faith had been violated. This lack of essential fairness and good faith continued during the inquiry process, as evidenced by the posthearing private interview of Haggerty which this court noted previously. This lack of essential fairness and good faith culminated in the panel’s and Shuart’s finding that Starishevsky was not guilty of sexual <mask> but should no longer remain at Hofstra because of behavior which was *147unethical, unprofessional and inappropriate (not bases for disciplinary action under the sexual harassment guidelines) and because of campus concerns.


Wieland was an Owner-Operator employee when she was served at her workplace with an ex parte order of protection sought and secured by Alan Lovelace, her ex-boyfriend. Wieland told Owner-Operator's director of human resources the allegations of <mask> supporting the ex parte order of protection were acts Lovelace was committing against her, not vice versa. Wieland told the director she was scared and felt threatened by Lovelace. The director asked Wieland to provide a description and photograph of Lovelace, which Wieland did. The director gave the description and photograph to the supervisor of the front desk receptionists to disseminate. The director also told her supervisor and Owner-Operator's volunteer safety team about the situation.


The essential facts are not in dispute. Respondents are rent-stabilized tenants at 500 East 85th Street, apartment 19D, New York, New York, pursuant to a written lease. They moved into the apartment in May 1985, and in 1987 they became the owners of a Great Dane named Xam. Petitioner alleges, through an affidavit of its superintendent, that it first learned of the dog in 1988. In October 1994 Xam died, and on December 7, 1994 the respondents obtained a new puppy, Xam II (Twoie). Two days later, by letter dated December 9, 1994, petitioner’s management advised respondents to remove the puppy, as they were in violation of the lease. On January 5, 1995, petitioner served respondents with a notice to cure. Respondents kept Twoie and petitioner served a notice of termination on January 23, 1995. This holdover proceeding was commenced by service of a notice of petition and petition on February 14, 1995. Prior to the commencement of this proceeding, respondents, on February 9, 1995, filed, and DHCR accepted, a <mask> *164complaint alleging, inter alia, that this eviction is retaliatory as respondent Eimicke was "responsible for * * * the development and passage of the laws on succession for rent stabilized apartments” (affidavit of William B. Eimicke, Mar. 19, 1995, para 7). In January 1995, shortly after the November 1994 election, the same month petitioner notified respondents to remove the puppy, respondent Eimicke lost his job as the Director of Housing and Commissioner of the Division of Housing and Community Renewal, which he held under former Governor Cuomo.


In Contreras I, we considered cross-appeals from an order granting in part and denying in part the Butterworths' special motion to strike Contreras's complaint. We held that Contreras's claims against the Butterworths for malicious prosecution, wrongful eviction, and tenant <mask> all arose, at *786least in part, from protected activity. The first part of the anti-SLAPP test was thus satisfied with respect to all of those causes of action, and our focus was on the second step of the test-whether Contreras had established a probability of prevailing on any of those causes of action. We noted Contreras's causes of action for tenant harassment and wrongful eviction were "mixed" in that they were based on allegations of both protected and unprotected activity. We concluded, however, that she had shown a probability of prevailing based on the allegations of unprotected conduct. *716In Contreras II, we considered Stuart's appeal from the trial court's denial of his special motion to strike. The then-operative complaint alleged "Stuart aided and abetted the Butterworths in some of the wrongful conduct that gave rise to Contreras's action against them." Our opinion discussed the effect of Contreras I on Stuart's appeal. We explained, "Contreras I establishes that Contreras has demonstrated a probability of prevailing on her claims against the Butterworths for malicious prosecution, tenant harassment, and wrongful eviction. [Citation.] It does not mean that the court below was relieved of the obligation to determine whether Contreras's claims against Stuart arise from protected activity, and if they do, of determining whether she has a reasonable probability of prevailing on them." We went on to hold Stuart had forfeited his argument that Contreras's claims against him arose from protected activity, because his opening brief did not even address the first prong of the section 425.16 analysis. In dictum, we noted we had already held that some of the Butterworths' actions did not arise from protected activity, and thus Stuart's alleged aiding and abetting of those actions did not arise out of protected activity. But since Stuart had not met his threshold burden of showing her claims against him arose out of protected activity, we had no need to consider whether Contreras had demonstrated a probability of prevailing on those claims. (See Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1290, 89 Cal.Rptr.3d 24 [where movant failed to show suit was based on protected activity, court had no need to consider whether opposing party had demonstrated she was likely to succeed on the merits].)


A retaliation claim may survive even if the underlying discrimination or <mask> claim is unsuccessful. Soto , 502 S.W.3d at 48. "[I]t is irrelevant to a claim of retaliation that the act complained of was not legally actionable. The only issue is whether the person making the complaint has a reasonable good faith belief that there were grounds for the claim of discrimination or harassment." Id. (internal quotation marks and citations omitted).


“must be allowed to independently consider the facts of a case and advocate the best interests of the child, free from the threat of <mask> for retaliatory litigation. Opening the door to negligence liability * * * would likely result in a decline in the number of attorneys willing to serve as GALs in child custody proceedings. In addition, fear of liability could warp the judgment of those GALs who are appointed toward the appeasement of disappointed parents or children and away from protecting the best interests of the child” (Paige K.B. v Molepske, 219 Wis 2d 418, 433-434, 580 NW2d 289, 296, citing Short v Short, 730 F Supp 1037, 1039). That court further stated that,


NYSDHR’s determination of no probable cause for petitioner’s claims of racial discrimination provides no justification for its conclusion that Weston United may do nothing to address petitioner’s complaints of racial slurs and <mask>. Nor does NYSDHR justify its insistence that petitioner has failed to show Weston United responded to her complaints differently from complaints by residents who are not white. Petitioner has shown that Weston United did not respond to white residents’ complaints of racial slurs and harassment. No evidence shows that Weston United also ignored complaints by African American residents. More importantly, since they were in the racial majority, no evidence indicates they were the victims of racial slurs or harassment. Therefore the record fails to negate the inference that Weston United’s failure to respond to white or other non-African American residents’ complaints of racial slurs or harassment was unrelated to their race or color, rendering NYSDHR’s contrary determination unsupported and hence arbitrary. (CPLR 7803 [3]; Polayes v City of New York, 118 AD3d at 426; East Riv. Hous. Corp. v New York State Div. of Human Rights, 116 AD3d at 563; Gutierrez v Rhea, 105 AD3d at 486.)


In order to prove a case of sexual <mask>, the Henson court (supra) required that five criteria be met: (1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual harassment, which it defined as “ ‘sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature’ *720* * * that the employee regard[s] as undesirable or offensive” (supra, p 903); (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a “term, condition, or privilege” of employment; and (5) the employer was liable. A number of courts have adopted this test and applied it to find causes of action for sexual harassment under title VII. (See, e.g., Katz v Dole, 709d 251; Phillips v Smalley Maintenance Servs., 711d 1524; Cummings v Walsh Constr. Co., 561 F Supp 872; Coley v Consolidated Rail Corp., 561 F Supp 645.)


Regarding “the preclusive effect of a prior final judgment on the merits. [Citation.] The doctrine has two distinct aspects: claim preclusion and issue preclusion. [Citation.] Claim preclusion, often referred to as res judicata, provides that ‘a valid, final judgment on the merits precludes parties or their privies from relitigating the same “cause of action” in a subsequent suit.’ [Citation.] Issue preclusion, or collateral estoppel, ‘ “precludes relitigation of issues argued and decided in prior proceedings.” ’ [Citations.]” (City of Oakland, supra, 224 Cal.App.4th at p. 227.) Application of this doctrine “ ‘is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from <mask> by vexatious litigation.’ [Citation.] It ‘rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.’ [Citations.]” (Id. at p. 228.) Whether res judicata or collateral estoppel applies in a particular case is a question of law reviewed de novo. (City of Oakland, supra, 224 Cal.App.4th at p. 228.) Wage Garnishment and Consent CSEA describes the “central issue” here as “whether [the District] has legal authority for deducting money from employees’ paychecks without those employees’ consent and without obtaining wage garnishment orders pursuant to Code of Civil Procedure section 706.010 et seq.” We conclude that employee consent is not required, nor is a wage garnishment order. Taking the wage garnishment issue first, we conclude that California attachment and wage garnishment law does not apply, because payments in excess of available leave that the District court docks are not wages. (Steinhebel, supra, 126 Cal.App.4th at pp. 704-705.) Rather, they are contingent advances pending the District’s determination


There is no evidence in the record that AutoZone subjected Meeks to an adverse employment action after she reported Fajardo's alleged <mask>. When she testified at trial in May 2014, she continued to be employed by AutoZone in the role of store manager. She "never experienced a loss or reduction in her classification, position, salary, benefits and work hours; and her employment was not terminated." ( Jones v. Department of Corrections & Rehabilitation , supra , 152 Cal.App.4th at p. 1381, 62 Cal.Rptr.3d 200.) She has not argued that she suffered working conditions so intolerable or aggravated as to constitute constructive discharge, that her performance evaluations suffered, or that she was ever denied any promotion or assignment that might have led to promotion. Meeks testified that Ledesma threatened her with an adverse employment action-to fire her and her husband, if she did not "squash" her complaint about Fajardo-but there is no evidence that the threat was carried out. Meeks has presented no authority, and we are aware of none, holding that a single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action under the standard articulated in Yanowitz and its progeny. On these facts, summary judgment in favor of AutoZone on the retaliation claim was appropriate.


Clark moves this court to dismiss the appeal, arguing it is frivolous. An appeal is frivolous "when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.) We agree with Clark that the appeal is frivolous and grant her motion. The contentions Kinney raises on appeal in opposition to Clark's entitlement to attorney fees and costs lack merit and are asserted in furtherance of his decade-long campaign of <mask> of Clark.


The Board of Trustees, in 1984, adopted an Equal Opportunity/Affirmative Action Policy Statement (E.O./A.A.). *719Later, a Sexual <mask> Policy (Policy) was promulgated by the President, without specific endorsement by the Trustees, which provided that harassment complaints would be handled under another policy document, entitled Guidelines for Resolving Discrimination Complaints (Guidelines). The Guidelines establish a Discrimination Complaint Review Committee to hear appeals and make recommendations to the President, whose decision is described as final.


1. Protection Orders: Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record. In such a de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. 2. Due Process: Words and Phrases. While the concept of due process defies precise definition, it embodies and requires fundamental fairness. 3. Constitutional Law: Due Process. Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reason- able opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker. 4. Constitutional Law: Protection Orders. Because the intrusion on a respondent’s liberty interests is relatively limited, the procedural due process afforded in a protection order hearing is likewise limited. 5. Courts: Judgments: Statutes. To satisfy the requirement of specific findings, the court must set forth the reasoning for its order, explaining why its conclusion is appropriate; specific findings cannot be satisfied by simply quoting the statutory language. 6. Protection Orders: Proof. The legal theories supporting either a sexual assault, domestic abuse, or <mask> protection order are signifi- cantly different from one another, and each require different offerings of proof. - 750 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


The verdict convicting defendant of second-degree <mask> was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). There is no basis for disturbing the trial court’s credibility determinations. The evidence established that defendant, who became angry and unruly while in custody when he was informed by complainant that he could not immediately make a second telephone call, spat upon complainant with the intent to harass, annoy or alarm him.


In February 2008, DHCR revoked the finding of <mask> and “prospectively eliminated” all sanctions. Based upon this revocation, landlord commenced the underlying nonpayment summary proceeding against tenant seeking a “first rent” of $1,400 per month based upon the 1989 reconfiguration of the apartment. On the parties’ competing motions for summary judgment, Civil Court dismissed the petition and awarded tenant a money judgment for a rent overcharge, holding that (1) the 1988 harassment order precluded the establishment of a first rent; and (2) upon DHCR’s revocation of the harassment order, landlord could only collect a prospective increase based upon the $138.36 monthly rent. We disagree and modify the order.


"I was Vicki’s 'ear’ during that most traumatic time when Mr. Garson’s machinations succeeded in stripping her abruptly of husband, children, home and possessions. When she first came she looked like a concentration camp victim and her reactions were such that if she caused a spill or similar insignificant household accident, she would look frightened and look at you expecting ridicule. She had been subjected to such humiliations and cruel behavior, one could not think beyond trying to give a little human kindness, freedom from <mask> and whatever shreds of comfort or support could be offered in a time of such shock.