Opinion
B222286
09-29-2011
CHRISTOPHER LEE DUNN, Plaintiff and Appellant, v. CITY OF BURBANK et al., Defendants and Respondents.
Law Offices of Rheuban & Gresen, Solomon E. Gresen and Steven M. Cischke for Plaintiff and Appellant. Burke, Williams & Sorensen, Ronald F. Frank and Robert J. Tyson for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC418792)
APPEAL from a judgment of the Superior Court of Los Angeles County. Irving Shimer, Judge. Affirmed.
Law Offices of Rheuban & Gresen, Solomon E. Gresen and Steven M. Cischke for Plaintiff and Appellant.
Burke, Williams & Sorensen, Ronald F. Frank and Robert J. Tyson for Defendants and Respondents.
Plaintiff and appellant Christopher Lee Dunn (plaintiff) appeals from the judgment entered in favor of defendants and respondents the City of Burbank (City) and Burbank City Attorney Dennis A. Barlow (Barlow) (collectively defendants) after the trial court granted defendants' special motion to strike, pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion), to plaintiff's complaint for invasion of privacy, defamation, negligence, and injunctive relief. We affirm the judgment.
All further statutory references are to the Code of Civil Procedure, unless stated otherwise.
BACKGROUND
1. Plaintiff's Termination
Plaintiff was a detective employed by the Burbank Police Department (BPD) when he received a telephone call on March 11, 2007, from a Culver City Police Department (CCPD) detective informing him that the CCPD was conducting a narcotics investigation on one of plaintiff's informants. Immediately thereafter, plaintiff telephoned the informant and had several subsequent telephone calls with her throughout the day. Later that same day, the CCPD's attempted "controlled buy" from the informant failed because she refused to sell narcotics to a CCPD informant.
A "controlled buy" is a law enforcement monitored operation that typically uses an informant to purchase narcotics from a subject who is the focus of a narcotics investigation.
The CCPD continued its investigation and arrested the informant on March 16, 2007. At that time, the informant told the CCPD that she had avoided the controlled buy on March 11 because plaintiff had alerted her to the investigation. After the informant made this disclosure, the CCPD arranged a series of recorded telephone calls between plaintiff and the informant. During one of the telephone calls, plaintiff told the informant to "clean up," which she understood as a suggestion to get rid of any narcotics in her possession.
The CCPD lodged a complaint with the BPD alleging that plaintiff had interfered in a CCPD investigation of the informant. The BPD then commenced its own investigation into plaintiff's conduct. When the BPD's preliminary investigation revealed that plaintiff may have committed a criminal violation, the BPD asked the Los Angeles County Sheriff's Department to investigate the CCPD complaint. The sheriff's department found probable cause to believe plaintiff had committed a crime and referred the matter to the Los Angeles County District Attorney's office. After evaluating the case, the district attorney's office declined to file charges against plaintiff because the case could not be prosecuted without violating informant confidentiality privileges. The deputy district attorney who evaluated the case commented, however, that the case against plaintiff was one of the strongest cases he had reviewed and that plaintiff's conduct was "very egregious."
On May 9, 2008, the district attorney sent a "Brady letter" to the BPD chief of police, advising the BPD that for all cases prosecuted by the district attorney's office in which plaintiff was a material witness, the district attorney would disclose to the defense the CCPD's allegations that plaintiff had interfered in an investigation by tipping off the subject of the investigation.
Brady v. Maryland (1963) 373 U.S. 83.
In May 2008, the BPD's chief of police informed plaintiff of his intent to terminate plaintiff's employment. The proposed termination was upheld at an administrative appeal hearing held on July 10, 2008. On July 17, 2008, the BPD's chief of police sent plaintiff a memorandum summarizing the charges against plaintiff, the findings of the multi-agency investigation into plaintiff's conduct, and the grounds upon which plaintiff's termination was based.
2. The Wrongful Termination Action
On July 16, 2009, plaintiff filed a lawsuit against the City for race discrimination and wrongful termination (the wrongful termination action), alleging that the City had terminated him from his position as a BPD officer because of his race. Plaintiff is of Asian ancestry.
Summary judgment was subsequently entered in defendants' favor in the wrongful termination action.
Before filing the wrongful termination action, plaintiff contacted the Los Angeles Times, the Daily News, and the Burbank Leader, and issued a press release stating that during his employment as a BPD officer, he was subjected to racial abuse and discrimination and that when he complained, the City retaliated against him by terminating his employment.
The press release referred to the CCPD's complaint that plaintiff had "tipped off" an informant about a CCPD investigation and described it as "totally without merit." It stated that the informant had subsequently recanted her accusations against plaintiff and said that she had been coerced into making them. Plaintiff's press release further stated: "Ultimately, the complaint was unsubstantiated and no criminal charges were filed. [¶] Despite the fact that the complaint against Dunn was neither properly investigated nor substantiated, and even though evidence had been tampered with and 'white' officers attempted to coerce false testimony from witnesses and even other officers during the investigation, on or about July 17, 2008, Detective Dunn was terminated by the Burbank PD on charges that he interfered with the investigation and for insubordination."
Defendants responded to plaintiff's allegations in the press by releasing to a reporter for the Burbank Leader a copy of the district attorney's Brady letter, and the July 17, 2008 memorandum summarizing the grounds for plaintiff's termination. The following day, the Burbank Leader published an article referring to the July 17, 2008 memorandum. The article included the following statement by Barlow, commenting on plaintiff's wrongful termination action: "'This lawsuit is an abuse of the judicial system by a former officer who was terminated a year ago for egregious misconduct which led the District Attorney to declare that he had obstructed justice and compromised a criminal narcotics investigation.'"
3. The Instant Lawsuit
Plaintiff filed this action on July 28, 2009, alleging that defendants' release of confidential information from his personnel file was negligent, defamatory, and violated his constitutional right to privacy. Defendants filed an anti-SLAPP motion, in which they argued that their release of information concerning the basis for plaintiff's termination and the statements by defendant Barlow were protected activities under section 425.16 and that plaintiff could not establish a reasonable probability of prevailing on his claims. Defendants further argued that their disclosure was authorized by Penal Code section 832.7, subdivision(d); protected by the litigation privilege accorded by Civil Code section 47, subdivision (b); and immunized from liability under Government Code sections 821.6, 818.8, and 822.2.
The trial court granted defendants' anti-SLAPP motion, and judgment was subsequently entered in defendants' favor. This appeal followed.
DISCUSSION
I. Applicable Law and Standard of Review
Section 425.16 provides in relevant part: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Determining whether the statute bars a given cause of action requires a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action "aris[es] from any act . . . in furtherance of the [moving party's] right of petition or free speech." (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.)
If the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a "probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) In order to demonstrate a probability of prevailing, a party opposing a special motion to strike under section 425.16 "'"must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. omitted.)
We review de novo a trial court's order granting or denying a special motion to strike under section 425.16. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
II. No Reasonable Probability of Prevailing
Plaintiff does not challenge the trial court's determination that defendants met the threshold requirement of demonstrating that the causes of action asserted against them arise from activity protected under section 425.16. We therefore do not review that determination but instead address whether plaintiff met his burden of demonstrating a reasonable probability of prevailing on the claims at issue in this appeal. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Plaintiff has limited the scope of this appeal to his invasion of privacy and defamation causes of action. He does not challenge the trial court's ruling on his causes of action for negligence and injunctive relief. We accordingly confine our analysis to the issues presented for our review.
A. Invasion of Privacy
A plaintiff asserting a claim for violation of privacy rights protected under the California Constitution must establish three essential elements: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) conduct on the part of the defendant constituting a serious invasion of privacy. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).) These three elements are the "threshold elements" used "to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision." (Loder v. City of Glendale (1997) 14 Cal.4th 846, 893.) After determining that the threshold elements have been met, a court analyzing an invasion of privacy claim must then balance the defendant's justification for the challenged conduct against the intrusion on privacy resulting from that conduct. (Ibid.) A defendant facing a state constitutional privacy claim may therefore prevail on the claim either by negating any of the essential elements of the claim or by pleading and proving "that the invasion of privacy is justified because it substantively furthers one or more countervailing interests." (Hill, supra, 7 Cal.4th at p. 40.)
1. No Reasonable Expectation of Privacy
Plaintiff has failed to state a legally sufficient claim for violation of his constitutional right of privacy because he failed to establish the threshold element of a reasonable expectation of privacy in the disclosed information. "A plaintiff's expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved." (Hill, supra, 7 Cal.4th at pp. 26-27.) In addition, "the plaintiff 'must have conducted himself or herself in a manner consistent with an actual expectation of privacy . . . .' [Citation.]" (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1000.)
Plaintiff in this case did not conduct himself in a manner consistent with an expectation of privacy in the disclosed information. He made public the very information he accuses defendants of improperly disclosing. He initiated a media campaign publicizing the purported facts underlying his termination -- the CCPD's complaint against him and the ensuing multi-agency investigation of that complaint. Plaintiff and his attorneys issued a press release describing the CCPD's complaint that he had tipped off an informant about a CCPD investigation as "unsubstantiated" and "totally without merit" and accusing the City and the BPD of tampering with evidence and not properly investigating the charges made against him. The press release quotes plaintiff's attorney as stating that plaintiff's "'termination was racially motivated and made strictly in retaliation for his complaints of harassment and discrimination . . . .'" This conduct was inconsistent with an expectation of privacy in the records plaintiff objects to having been disclosed. Having placed in the public domain the CCPD's complaint against him, the investigation of that complaint, and the grounds for his termination, plaintiff cannot now complain to have had a reasonable expectation of privacy in the documents pertaining to those matters.
2. Penal Code section 832.7 (section 832.7)
Plaintiff also cannot establish an invasion of privacy claim because defendants' disclosure of the challenged documents was authorized by section 832.7, subdivision (d). That statute authorizes a department or agency that employs peace officers to release information concerning a disciplinary investigation if the peace officer who is the subject of the investigation publicizes false information concerning the investigation or the disciplinary action imposed. Section 832.7, subdivision (d) provides:
"Notwithstanding subdivision (a)[], a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer's personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or his or her agent or representative."
Section 832.7, subdivision (a) provides that peace officer personnel records are confidential and cannot normally be disclosed except pursuant to certain Evidence Code provisions. It states in part: "Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to [Penal Code] Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code."
The legislative history states that subdivision (d) was added to section 832.7 "to level the playing field in regard to police officer records" by enabling peace officer employers to respond to false and misleading statements made by a peace officer about the nature and extent of any disciplinary proceedings against the officer. (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 2176 (1995-1996 Reg. Sess.) June 25, 1996.)
Defendants' disclosure of documents pertaining to their investigation of the CCPD's complaint and their reasons for terminating plaintiff's employment was authorized by section 832.7, subdivision (d). The disclosure was made in response to false statements made by plaintiff and his counsel that the CCPD's complaint that he had tipped off an informant about a pending investigation was "unsubstantiated" and "totally without merit," that the complaint "was neither properly investigated nor substantiated," and that plaintiff's termination was "racially motivated" and retaliatory.
Defendants argue that section 832.7, subdivision (d) bars an action by a peace officer for invasion of privacy as a matter of law, and they cite Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419 as authority for this proposition. The Rosales court's holding was not so expansive. The court in Rosales held that section 832.7 does not provide for a private right of action for violation of its provisions. (Rosales, at pp. 427-429.) In addition, the Rosales court's observation that the confidentiality privilege accorded to peace officer personnel records by section 832.7 is "conditional or limited because an officer cannot prevent disclosure of his or her personnel records . . ." was made in the context of recognizing that a peace officer may not prevent disclosure in a civil or criminal action after a trial court has granted a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 to obtain a peace officer's personnel records. (Rosales, at pp. 426-427.) That principle does not apply to the instant case, which does not involve a Pitchess-type discovery motion.
Plaintiff claims the disclosure in this case was not statutorily authorized because section 832.7, subdivision (d) applies only if an officer "makes a statement he or she knows to be false," and he believed the statements made in his press release were true. The statute's applicability does not depend on an officer's subjective belief in the veracity of his statements. There must be a reasonable basis for that belief. In this case, there is no reasonable basis for plaintiff's claim that the CCPD's complaint against him was neither properly investigated nor substantiated. Plaintiff knew that multiple law enforcement agencies -- the CCPD, the BPD, the Los Angeles County Sheriff's Department, and the Los Angeles County District Attorney's office -- independently investigated the CCPD's complaint that he had interfered with a narcotics investigation. Each of those agencies concluded that plaintiff had engaged in misconduct that was also a violation of law.
Although no criminal charges were filed against him, plaintiff knew that the reason the district attorney's office declined to file charges was not because the case against him had no merit, but because the case could not be prosecuted without violating informant confidentiality privileges. Plaintiff also knew that the deputy district attorney who evaluated the case expressed the opinion that plaintiff's misconduct was "very egregious." The evidence does not support plaintiff's claim that he did not know the statements he made publicly in the press were false.
Plaintiff next contends that defendants' release of information was overbroad. He maintains that defendants exceeded the scope of section 832.7, subdivision (d), which authorizes only a limited release of facts "concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public."
Given plaintiff's sweeping allegations that the CCPD's complaint against him was "neither properly investigated nor substantiated," "totally without merit," and "unsubstantiated," as well as his claim that termination of his employment was "racially motivated," defendants' release of the July 17, 2008 memorandum documenting the investigation into plaintiff's conduct and the grounds for his termination was not overly broad. The termination letter summarizes the events giving rise to the CCPD's complaint; the lengthy, multi-agency investigation of that complaint; the findings of that investigation; and the reasons for terminating plaintiff's employment. Defendants' release of information did not exceed the scope of section 832.7, subdivision (d).
B. Defamation
The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Civ. Code, §§ 45, 46; Taus v. Loftus (2007) 40 Cal.4th 683, 720.) A statement that cannot reasonably be understood as alleging a provably false factual assertion is not defamatory. (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724.) "[A] subjective judgment of the person making the statement" is not one that implies a provably false factual assertion. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270 (Gallagher).)
Moreover, "statements of opinion concerning public officials are recognized privileged against claims of libel . . . . '[T]he First Amendment protects even sharp attacks on the character, motives, or moral qualifications of [public officials.]' [Citation.]" (Young v. County of Marin (1987) 195 Cal.App.3d 863, 872.) As a former police officer, plaintiff is a public official. (Gomes v. Fried (1982) 136 Cal.App.3d 924, 933-934.) As such, he cannot demonstrate an ability to succeed on the merits of his defamation claim without (1) identifying statements that conveyed a provably false and defamatory imputation, and (2) presenting evidence that the statements were in fact substantially false. (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021.)
Plaintiff's defamation claim is based solely upon the following statement by defendant Barlow commenting on plaintiff's wrongful termination action: "'This lawsuit is an abuse of the judicial system by a former officer who was terminated a year ago for egregious misconduct which led the District Attorney to declare that he had obstructed justice and compromised a criminal narcotics investigation.'" The first part of the statement, characterizing plaintiff's lawsuit as "an abuse of the judicial system" is simply an expression of subjective opinion, as is the statement that plaintiff was terminated for "egregious misconduct." (Gallagher, supra, 123 Cal.App.4th at p. 1270.) The portion of the statement attributable to the district attorney -- that plaintiff's conduct constituted an obstruction of justice -- is true. The Brady letter sent by the district attorney notifying the BPD that the district attorney's office had reviewed information regarding the CCPD's complaint against plaintiff states that plaintiff's conduct "constitutes obstruction of justice, an act involving moral turpitude." Plaintiff failed to establish a reasonable probability of prevailing on his cause of action for defamation.
Plaintiff failed to make the prima facie showing necessary to establish a probability of prevailing on his causes of action for invasion of privacy and defamation.The trial court accordingly did not err by granting defendants' anti-SLAPP motion.
Because we conclude that plaintiff failed to establish a reasonable probability of prevailing on the causes of action at issue in this appeal, and that the anti-SLAPP motion was properly granted on that basis, we need not address the parties' arguments as to whether Government Code sections 818.8, 821.6, or 822.2 or Civil Code section 47, subdivision (b) immunized defendants from liability in this case.
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DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______, J.
CHAVEZ
We concur:
______, P. J.
BOREN
______, J.
DOI TODD