Mr. Adelstein represented a former substitute teacher who was peacefully picketing

Krell v. Gray

On appeal, Mr. Adelstein represented a former substitute teacher who was peacefully picketing in front of a LAUSD middle school. His sign and leaflets stated that the school promoted racism, sexism, and low student performance, and he specifically named the assistant principal. The assistant principal was upset with this. First, he and LAUSD sued the former teacher on the theory that the teacher's picketing was promoting workplace violence, and sought an injunction under Code of Civil Procedure, section 527.8. The trial court noted that the teacher was not encouraging violence and in any case his picketing was protected by the First Amendment.

Undeterred, the assistant principal then sued under Code of Civil Procedure, section 527.6, arguing that the teacher's picketing was a form of harassment. The case was assigned to a different judge who concluded that the picketing was harassment, rejected the teacher's res judicata and collateral estoppel defenses, rejected the First Amendment defense, and entered the injunction.

The appeal had a convoluted history. Mr. Adelstein's brief argued that the injunction should be reversed under res judicata, collateral estoppel, and the First Amendment, among other things. He also requested attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i). LAUSD represented the assistant principal and argued to the contrary.

The Court of Appeal initially issued a published opinion affirming most of the injunction but remanding for a relatively minor correction. Mr. Adelstein filed a petition for rehearing, arguing that this opinion had incorrectly analyzed both the collateral estoppel and First Amendment issues. The Court of Appeal then asked for two sets of supplemental letter briefs, granted rehearing, and issued a second opinion reversing the trial court's injunction in full. The Court of Appeal also awarded attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i).

Case Comment

I need to commend the justices in this case for granting rehearing. Petitions for rehearing are rarely granted, especially if a case has been designated for publication. But the Court of Appeal's analysis in its initial opinion, especially of the First Amendment, was simply incorrect. Many justices would be tempted to simply deny the rehearing petition and be done with the case. But the court here not only granted rehearing, but spent a considerable amount of time ordering and considering two sets of supplemental letter briefs. The justices not only worked hard to get the right result, but changed their mind in the process, and this should not pass without note.


Court: California Court of Appeal, Second Appellate District, Division Five (Los Angeles)
Case No. B169593
Authors: Justice Richard Mosk; Presiding Justice Paul Turner
Opinion Date: February 16, 2005; April 27, 2005
Trial Counsel: The client was in pro per.