motion for prelim injunction

8/4/2019 Motion for Prelim Injunction

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1 The Honorable Vicki L. Hogan234567 SUPERIOR COURT OF WASHINGTONIN AND FOR PIERCE COUNTY8 CHARLES COX and JUDY COX, husband and9 wife,

NO. 11-2-13049-1

10 PlaintifIs,. MOTION FOR PRELIMINARYINJUNCTION11 JOSHUA POWELL; STEVEN POWELL;ALINA POWELL; and MICHAEL POWELL,12

Defendants.1314 i. RELIEF REQUESTED15 Plaintiffs Charles and Judy Cox respectfully ask this Court for a preliminary injunction16 mandating that (l) Defendants immediately cease any further publication of any and all of Susan17 Cox Powell's journal entries, copies thereof, or content derived therefrom; (2) Defendants18 immediately remove any journal entries and/or content obtained from Susan Cox Powell's19 journals, regardless of who authored said entries, from the website SusanPowell.org or any other20 public forum where the journal entries are published; (3) Defendants immediately cease any21 further distribution of any and all of Susan Cox Powell's journal entries, copies thereof, or22 content derived therefrom to any third party, including but not limited to, friends, relatives, and23 various media outlets; and (4) Defendants refrain from discussing the content of Susan Cox

MOTION FOR PRELIMINARY INJUNCTION - 1 STAFFORD FREY COOPER11532-030894 79937x PROFESSIONAL CORPORATION

601 Union Street, Suite 3100Seattle WA 981011374

TEL 2066239900 FAX 2066246885

E-FILED

IN COUNTY CLERK'S OF

PIERCE COUNTY, WASHIN

August 31 2011 12:24 P

KEVIN STOCK

COUNTY CLERKNO: 11-2-13049-1


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1 Powell's journals with any third parties, including but not limited to, friends, relatives, and2 various media outlets.

3 II. STATEMENT OF FACTS4 On August 26, 2011, Plaintiffs obtained a Temporary Restraining Order against5 defendants requiring that they immediately refrain from any further publication or distribution of6 Susan Cox Powell's journal entries. Declaration of Evan D. Bariault ("Bariault Decl.") ~ 2, Ex.7 A. Additionally, the order requires that defendants immediately remove any journal entries and

8 any content obtained or derived from Susan Cox Powell's journals from the website9 SusanPowell.org or any other public forum where content from the journals is published. d.

10 Defendants were served with the Temporary Restraining Order on August 26, 2011. d. ~ 3, Ex.11 B. As of August 31, 2011, Defendants have failed to comply with the Temporary Restraining12 Order, specifically, the provisions requiring defendants to immediately remove any journal13 entries and any content obtained or derived from Susan Cox Powell's journals from the website14 SusanPowell.org. d. ~ 4. The court's grant of the Temporary Restraining Order and Plaintiffs'15 request for a preliminary injunction is based on the following facts.16 On or about December 7,2009, Susan Cox Powell disappeared from her Utah home that

17 she shared with her husband, Joshua Powell, and their two young sons. Declaration of Charles18 Cox ("Cox Decl") ~ 2. Ms. Cox Powell was reported missing when she failed to show up to19 work and her two young sons did not show up for daycare on December 7, 2009. d. ~ 3. West20 Valley City police went to the Powell family home that day to check on the status of the family21 and found that no one was home. d. ~ 4.22 The Powell family was not heard from until Joshua Powell and his two young sons23 showed up at the family home at approximately 5:00 p.m. on December 7,2009. Cox Decl. ~ 5.

MOTION FOR PRELIMINARY INJUNCTION - 211532-030894 79937x

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1 Joshua told police that he left the family home just after midnight that day to take his 2 and 42 year old sons camping in subfreezing conditions. d. He informed police that when he left for3 the camping trip Ms. Cox Powell was sleeping and when he returned later that day she was gone.4 d. When Charles Cox spoke with Joshua Powell on December 8, 2009, Joshua told his father-5 in-law that Ms. Cox Powell was getting ready for bed when he left to take his sons camping. d.6 Approximately eleven days after Ms. Cox Powell disappeared from her home, Joshua7 Powell moved to Puyallup, Washington, where he currently resides in the home of his father,8 Steven PowelL. Cox Decl. ~ 7. To date, Ms. Cox Powell's whereabouts are unknown and police

9 have labeled her disappearance as highly suspicious. d. ~ 6. Joshua Powell is the only named10 person of interest at this time and has been less than cooperative in helping law enforcement find11 his wife. d.12 After Ms. Cox Powell's disappearance, Joshua Powell and his family created a website13 entitled SusanPowell.org. Cox Decl. ~ 8. The website addresses the Powell family's contention14 that Ms. Cox Powell ran off with another man, Steven Koecher. d. Around the same time Ms.

15 Cox Powell disappeared, Mr. Koecher, another Utah resident, also disappeared. d. Although16 investigators in both disappearances have found absolutely no link between the two, the Powell17 family has held strong to their belief that Ms. Cox Powell ran off with this man. d.18 As a means of supporting their contention that Ms. Cox Powell deserted her family and19 ran off with another man, the defendants published Ms. Cox Powell's journal on their website20 and distributed copies of journal entries to third parties, including various media outlets,21 claiming the journal entries show she is the type of person that could have run off and abandoned22 her family. Cox Decl. ~ 9. Ms. Cox Powell began writing her personal journal entries around the23 age of 8 and is believed to have continued writing journal entries until she was approximately 20



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1 years old. d. Although Plaintiffs have never read their daughter's journals out of respect for her2 privacy, through defendants' publication and distribution of the journals, Plaintiffs have come to3 learn that the journals are extremely private and detail very personal family matters. Cox Decl. ~

4 9-10.5 On or about December 7, 2010, the defendants published on their website an entry from6 Ms. Cox Powells journal from August of 1999. Cox Decl. ~ 10, Ex. A. The entry was written by7 a friend of Susan's, Brittany Cornett, and details a quarrel between Ms. Cox Powell and her

8 mother. d. Ms. Cornett never consented to the publication of this entry and it was meant to be9 kept private within the confines of Ms. Cox Powell's journal. d. Defendants also distributed

10 copies of journal entries to various media outlets and disseminated the content of other entries to11 those same media outlets. d., Ex. B. One particular entry distributed to the media detailed an12 episode where Ms. Cox Powell consumed over the counter headache medication and had to be13 taken to the hospital as a precaution. d. The defendants, without any reasonable basis, allege the14 entry shows Ms. Cox Powell was suicidaL. These journal entries are extremely personal and15 while Plaintiffs only know the content of entries that have been published, distributed or16 discussed by defendants, what has been revealed shows that Ms. Cox Powell's entries detail very17 private family and personal matters. d., Ex. B.18 The publication and distribution of Ms. Cox Powell's journals has caused Plaintiffs19 severe emotional distress and mental anguish. Cox Decl. ~ 11. Plaintiffs have been tormented by20 defendants' continued release of this very private information about Plaintiffs and their daughter.21 d. The release of this private information was never consented to by Ms. Cox Powell or the22 Plaintiffs. d. While Plaintiffs have made repeated requests to defendants to not publish or

23 distribute their daughter's journals, their requests have been to no avaiL. d. ~ 12.MOTION FOR PRELIMINARY INJUNCTION - 4 STAFFORD FREY COOPER11532-030894 79937x PROFESSIONAL CORPORATION


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1 For almost two years now the Plaintiffs have been without their daughter, and their pain

2 only grows stronger with each day that passes. Cox Decl. ~ 13. Opposed to supporting a set of3 parents who are facing their darkest days, the defendants have thrown salt on the Plaintiffs'4 wounds through their outrageous acts of publishing and distributing Plaintiffs' and Ms. Cox5 Powell's most intimate and personal moments.

6 III. ISSUE PRESENTED7 Whether the Court should enter a preliminary injunction mandating that (1) Defendants

8 immediately cease any further publication of any and all of Susan Cox Powell's journal entries,9 copies thereof, or content derived therefrom; (2) Defendants immediately remove any journal

10 entries and/or content obtained from Susan Cox Powell's journals, regardless of who authored11 said entries, from the website SusanPowell.org or any other public forum where the journal12 entries are published; (3) Defendants immediately cease any further distribution of any and all of13 Susan Cox Powells journal entries, copies thereof, or content derived therefrom to any third14 party, including but not limited to, friends, relatives, and various media outlets; and (4)15 Defendants refrain from discussing the content of Susan Cox Powell's journals with any third16 parties, including but not limited to, friends, relatives, and various media outlets.17 IV. EVIDENCE RELIED UPON18 Plaintiffs rely upon the declarations of Charles Cox and Anne Bremner, upon the exhibits19 attached thereto, and upon the records and fies herein.20 V. LEGAL AUTHORITY AND ANALYSIS21 A. Plaintiffs satisfied the notice requirement.22 Pursuant to CR 65( a)(l), defendants were duly served with this motion on August 31,23 2011. Bariault Decl. ~ 5.



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1 B. Plaintiffs are entitled to the relief requested.2 A preliminary injunction serves to prevent harm to the moving party until a full hearing3 on the merits of the complaint can be held. Blackiston v. Osgood Panel & Veneer Co., 173 Wash.4 435,438,23 P.2d 397 (1933).

5 The applicable requirements for issuing a preliminary injunction are well settled: the6 movant must show (1) that he has a clear legal or equitable right, (2) that he reasonably fears will7 be invaded by defendant's actions, and (3) defendant's actions wil result in substantial harm.8 Kucera v. State, Dept. of Transp., 140 Wash.2d 200, 209, 995 P.2d 63 (2000). See also RCW9 7.40.020. Since injunctions address the court's equitable powers, the court must examine the

10 listed criteria in light of equity, including balancing the relative interests of the parties and, if11 appropriate, the interests of the public. d. In considering injunctive relief, a trial court may12 recognize circumstances and weigh as equitable factors: (a) the character of the interest to be13 protected, (b) the relative adequacy of injunction in comparison with other remedies, (c) the14 delay, if any, in bringing suit, (d) the misconduct of the plaintiff if any, (e) the relative hardship15 likely to result to the defendant if an injunction is granted and to the plaintiff if it is denied, (1)16 the interest of third persons and of the public, and (g) the practicability of framing and enforcing17 the order or judgment. Holmes Harbor Water Co. v. Page, 8 Wash. App. 600, 603, 508 P.2d 628

18 (1973 ) (quoted citations omitted).19 1. Plaintiffs have a clear legal or equitable right to privacy.20 Washington recognizes a common law right of privacy. Reid v. Pierce County, 13621 Wash.2d 195,206,961 P.2d 333 (1998); see also Hearst Corp. v. Hoppe, 90 Wash.2d 123,58022 P.2d 246 (1978) (establishing that individuals have a right to privacy, with the Restatement23 (Second) of Torts 652D (1977) outlining the principles for the tortious invasion of that right).



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1 In Reid, the Washington Supreme Court held that a common law right to privacy exists and the2 Restatement (Second) of Torts 652D (1977) provides the general rule for invasion of privacy.3 d. It states:4 One who gives publicity to a matter concerning the private life of another is subject toliability to the other for invasion of privacy, if the matter publicized is of a kind that5

(a) would be highly offensive to a reasonable person and6(b) is not of legitimate concern to the public i.7 In Cowles Publ'g Co. v. State Patrol, 109 Wash.2d 712, 721, 748 P.2d 957 (1988) (quoting

8 Restatement (Second) of Torts 652D, at 386), the court identified the nature of facts protected9 by the right of privacy, stating:

10 Every individual has some phases of his life and his activities and some facts abouthimself that he does not expose to the public eye, but keeps entirely to himself or at mostreveals only to his family or to close personal friends. Sexual relations, for example, arenormally entirely private matters, as are family quarrels, many unpleasant or disgracefulor humiliating ilnesses, most intimate personal letters, most details of a man's life in hishome, and some of his past history that he would rather forget. When these intimatedetails of his life are spread before the public gaze in a manner highly offensive to theordinary reasonable man, there is an actionable invasion of his privacy, unless the matteris one of legitimate public interest.

1112131415

(Emphasis Added).16 The legal and equitable right described by these courts encompasses Plaintiffs' right to17 have their personal and private family matters kept private. This includes matters that are stored18 in their daughter's private journal and detail the private lives of Plaintiffs. There should be no19 question that defendants' behavior would be highly offensive to any reasonable person. Further,20212223 1 The Restatement (Second) of Torts ~ 6520 outlines the tort entitled "Publicity Given to Private Life."





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1 personal and family matters stored in the confines of the journal of a missing woman are of

2 absolutely no legitimate concern to the public2.

3 Defendants have absolutely no equities favoring the publication or distribution of Susan

4 Cox Powell's journal entries. None of the defendants have a legal ownership interest in the5 property and none of the defendants have received any form of consent to publish, distribute or6 discuss the content of the journal entries.

7 2. Defendants have invaded, and, if not stopped, wil continue to invade Plaintiffs'

8 legal and equitable rights.

9 There is absolutely no dispute that defendants have published copies of Susan Cox10 Powell's journal entries on the website SusanPowell.org and distributed copies of her journal to11 family, friends and various media outlets. See Cox Dec! ~ 10, Ex. A. There is also no dispute12 that defendants have shared the content of Susan Cox Powell's journals with friends, family and13 various media outlets. d., Ex. B. Defendants have repeatedly invaded Plaintiffs rights, and wil14 continue to do so if an injunction is not issued; indeed despite receiving a restraining order15 commanding immediate removal of the offending material, defendants have not even complied16 with that unambiguous mandate.

17 Any reasonable person would find defendants' actions highly offensive, especially in18 light of the circumstances, and the Cox family's private personal and family matters are of no19 legitimate concern to the public.20212223

2 Plaintiffs do not seek to prevent the use of the journals by the proper authorities in connection with theongoing investigation into Susan's disappearance.MOTION FOR PRELIMINARY INJUNCTION - 811532-030894 79937x


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1 3. Defendants' acts are resulting in and/or wil result in actual and substantialinjury to Plaintiffs.2 As a result of Defendants' acts, Plaintiffs have suffered severe emotional distress and3

mental anguish. Plaintiffs are at Defendants' mercy as they sit on pins and needles each day4 wondering if Defendants are going to release more personal and private family information about5 themselves and their daughter. Not only have Defendants released this private information, but6 they have manipulated this information in order to paint a fictitious picture of Ms. Cox Powell,7 her past and her family upbringing. Plaintiffs have begged and pleaded with Defendants to cease8 their outrageous actions, but to no avail, only resulting in further distress to Plaintiffs.9 Defendants' actions are disgusting and repulsive and no reasonable person could be expected to

10withstand such egregious behavior under the circumstances fcing Plaintiffs. To allow

11 defendants to continue to publish, distribute, and discuss the content of Susan Cox Powell's12 journals would be an injustice to the privacy rights of Plaintiffs and their daughter.13 VI. CONCLUSION14

Based on the foregoing, Defendants are entitled to a preliminary injunction until a full15 hearing on the merits of the complaint can be held.1617 2011.DATED this day of18 STAFFORD FREY COOPER19

20 By:212223

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1 Certificate of Service2 The undersigned certifies under the penalty of perjury according to the laws of the United Statesand the State of Washington that on this date I caused to be served in the manner noted below a

copy of this document entitled MOTION FOR PRELIMINARY INJUNCTION on the followingindividual(s):34 Joshua PowellSteven PowellAlina Powell

Michael Powell18615 94th Avenue Court EastPuyallup, WA 98375Defendants

5678

() Via Facsimile() Via First Class Mail(x) Via Messenger9

10 2011, at Seattle, Washington.ATED this day of111213141516171819

20212223




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