Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV-032008
McGuiness, P.J.
A jail inmate complained that a deputy sheriff used excessive force. The sheriff found the allegation to be true. An administrative appeals panel exonerated the deputy and the sheriff appealed. After the appeal was rejected, the sheriff told a reporter, “This was an incident of excessive force.” Claiming his reputation had been tarnished, the deputy sued the sheriff and the county for slander and related causes of action. The trial court granted the defendants’ summary judgment motion, concluding the sheriff’s statement was an opinion and thus nonactionable. On appeal, the deputy contends the sheriff’s statement is factual in nature and provably false. He also urges that, to the extent the statement is classified as opinion, it is nonetheless actionable because it implies the existence of undisclosed defamatory facts. We affirm the judgment.
Factual and Procedural Background
Appellant Randall Fritz was employed as a deputy sheriff in Marin County. The sheriff’s department undertook an investigation of Fritz prompted by a citizen’s complaint that Fritz had used excessive force on an inmate at the Marin County Jail on November 10, 2000. The investigation focused on the excessive force claim and an allegation that Fritz had escorted the inmate unassisted, in violation of a rule requiring that inmates housed in administrative segregation be escorted by two deputies while being moved. On February 14, 2001, the sheriff’s department notified Fritz of its intent to discipline him based on its investigation of the matter. The department’s letter to Fritz described the incident as follows: “On November 10, 2000, you unnecessarily applied physical force upon an inmate of the County of Marin Jail while in that inmate’s cell in the Special Housing Unit. You physically grabbed the inmate, turned him around, placed your thumb and forefinger underneath the inmate’s chin, and pinned the inmate against the wall. While in this position you made the statement to him, ‘Don’t ever threaten my family again.’ ”
Following a Skelly hearing, the Marin County Sheriff, respondent Robert Doyle, sustained the allegations against Fritz, including the allegation that Fritz had used excessive force on an inmate. Sheriff Doyle suspended Fritz for two days without pay, although he suspended imposition of this disciplinary action provided that no similar complaints were lodged against Fritz for six months. The sheriff also directed that a letter of reprimand be issued to Fritz.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
Fritz appealed Sheriff Doyle’s decision to the Marin County Personnel Commission, which found that the county had failed to sustain its burden to uphold the discipline for the excessive force charge. Although the Personnel Commission described the matter as a “close case,” it concluded in a three-to-one ruling that the county had failed to prove by a preponderance of the evidence that Fritz’s actions clearly violated departmental policy or that Fritz should have known his actions were inappropriate under the circumstances. The Personnel Commission exonerated Fritz of the excessive force charge and directed that his personnel file be purged of any documents pertaining to that charge.
The Personnel Commission was not asked to make any findings with respect to the charge that Fritz had moved the inmate without assistance in violation of a rule requiring a two-person escort.
Sheriff Doyle appealed the Personnel Commission’s decision to the Marin County Board of Supervisors. The sheriff presented his appeal at a public hearing at which he expressed his disappointment with the ruling. He also told the Board of Supervisors that the jailhouse incident was a case of excessive force. The Board of Supervisors denied the appeal.
Sheriff Doyle later spoke with Richard Halstead, a reporter for the Marin Independent Journal who had been at the public hearing at which the sheriff presented his appeal. The sheriff told the reporter he was disappointed with the Personnel Commission’s decision, and he remarked that the jailhouse incident involved excessive force. On July 25, 2002, the Marin Independent Journal published an article entitled “Supervisors reject sheriff’s appeal.” In the article, Sheriff Doyle is quoted as saying, “This was an incident of excessive force.” The article discusses the factual background of the excessive force allegation as well as the outcome of the appeals process that led to Fritz’s exoneration. The article indicates that the Board of Supervisors “grudgingly” rejected the appeal because they were advised by county counsel that by hearing the appeal they would set a precedent for hearing all subsequent appeals of the Personnel Commission. Sheriff Doyle is quoted in the article as saying, “I’m just very disappointed with the process.”
Fritz filed suit for invasion of privacy, violation of civil rights, slander, intentional infliction of emotional distress, and negligent infliction of emotional distress. The County of Marin, the Marin County Sheriff’s Department, and Sheriff Doyle (collectively, the County defendants) are named as defendants in the operative, first amended complaint.
Another named defendant, the Marin Independent Journal, was dismissed without prejudice before entry of the judgment that is the subject of this appeal. The first amended complaint contains a cause of action for libel alleged solely against the Marin Independent Journal. This appeal does not involve the libel cause of action.
The County defendants moved for summary judgment or, in the alternative, summary adjudication. Among other arguments made in support of their motion, the County defendants contended that Sheriff Doyle’s statement was true and therefore not actionable as slander. The County defendants urged that because the sheriff department’s internal investigation concluded Fritz used excessive force, the sheriff’s statement was not false. The trial court granted summary adjudication as to the causes of action for invasion of privacy, violation of civil rights, and negligent infliction of emotional distress. The trial court denied summary adjudication as to the causes of action for slander and intentional infliction of emotional distress.
The County defendants subsequently filed a new summary judgment motion in which they argued primarily that Sheriff Doyle’s statement to the press, when viewed in context, was an expression of opinion that was nonactionable as a matter of law. The trial court agreed and granted the County defendants’ summary judgment motion. The court also concluded as a matter of law that Sheriff Doyle’s conduct was not sufficiently “outrageous or reckless” to support the cause of action for intentional infliction of emotional distress. Fritz filed a timely notice of appeal from the judgment.
Fritz initially appealed from the order granting the summary judgment motion in Case No. A112381. We dismissed the appeal as premature, and Fritz thereafter appealed from the judgment. The facts are taken from the record in Case No. A112381, which appellant incorporated by reference when designating the record in this appeal. (See Cal. Rules of Court, rule 8.147(b)(1).)
Discussion
Fritz contends on appeal that triable issues of fact prelude summary judgment on his slander and intentional infliction of emotional distress causes of action. He argues that Sheriff Doyle’s statements to the media are provably false and therefore actionable as statements of fact. To the extent it is unclear whether the statements constitute fact or opinion, he contends the decision should be left to the trier of fact. If the sheriff’s statements are determined to be opinion rather than fact, Fritz nonetheless urges that they are actionable because they necessarily imply undisclosed defamatory facts.
1. Standard of Review
“In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party’s papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. [Citation.]” (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287.)
2. Slander
a. Sheriff Doyle’s Statement Was an Opinion and thus Nonactionable as Slander.
Slander is a form of defamation. (Civ. Code, § 44.) “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.]” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; see also Civ. Code, § 46.)
In the past, courts strictly distinguished between statements of fact and statements of opinion for purposes of defamation liability. (See, e.g., Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.) A publication must have contained a false statement of fact to support liability for defamation. (Carr v. Warden (1984) 159 Cal.App.3d 1166, 1169.) Statements of opinion were constitutionally protected under the First Amendment. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 259-260; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1606.) “This categorical exemption of opinions from the reach of defamation law rested on a passage from Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340: ‘Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.’ ” (Kahn v. Bower, supra, 232 Cal.App.3d at p. 1606.)
In Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19, “the United States Supreme Court rejected the contention that statements of opinion enjoy blanket constitutional protection. The Supreme Court reasoned that ‘[s]imply couching such statements in terms of opinion does not dispel these [false, defamatory] implications’ [citation] because a speaker may still imply ‘a knowledge of facts which lead to the [defamatory] conclusion’ [citation]. The court explained that expressions of opinion may imply an assertion of objective fact. For example, ‘[i]f a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.’ [Citation.] Statements of opinion that imply a false assertion of fact are actionable. [Citation.]” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384-385.)
“[T]he dispositive question after Milkovich is ‘whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion.’ ” (Kahn v. Brewer, supra, 232 Cal.App.3d at p. 1607, fn. omitted.) “Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide [citations], unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood [citations].” (Franklin v. Dynamics Detail, Inc., supra, 116 Cal.App.4th at p. 385.) Thus, “[i]f the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury.” (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 578; see also Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 680.)
To determine whether a statement constitutes actionable fact or nonactionable opinion, the court employs a “totality of the circumstances” test. (Franklin v. Dynamics Detail, Inc., supra, 116 Cal.App.4th at p. 385.) “Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered.’ [Citation.] ‘Milkovich did not substantially change these principles.’ [Citation.]” (Id. at pp. 385-386.) In making its contextual analysis, the court looks at the allegedly defamatory publication in its entirety. The publication or statement may not be divided into segments, but must be considered as a whole. (Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 291, fn. 11.)
Applying the totality of the circumstances test here, we conclude the statement at issue—“This was an incident of excessive force”—can only be characterized as nonactionable opinion. Sheriff Doyle had consistently urged that Fritz’s actions amounted to the use of excessive force justifying discipline. He expressed disappointment in the ruling of the Personnel Commission and reiterated his conclusion that Fritz’s actions constituted the use of excessive force. In context, Sheriff Doyle’s statements to the reporter from the Marin Independent Journal were simply a reflection of his opinion that the Personnel Commission had reached an incorrect conclusion that should have been reviewed by the Marin County Board of Supervisors.
Furthermore, the sheriff’s conclusion is not a provably false fact, as Fritz contends, but is instead an opinion formed after considering the facts of the incident in light of the legal definition of excessive force. What constitutes excessive force under the circumstances depends upon a number of factors, including the applicable statutes, regulations, and written guidelines governing a peace officer’s conduct. The determination of whether an officer used excessive force may require an expert to assess whether the force used was reasonable. Indeed, the Personnel Commission heard expert opinion on whether Fritz’s actions constituted the use of excessive force, concluding the matter was a “close case” but ultimately finding no clear violation of departmental policy. Even Fritz acknowledged in a previous submission to the trial court that “reasonable minds can differ” on the issue of whether he used excessive force. For these reasons, we reject the contention that the sheriff’s statement is actionable because his assessment of the facts was erroneous. An opinion clearly not supported by the known facts may support a defamation action if it implies a provably false factual assertion, but that is not the case here. The matter of whether Fritz used excessive force was a close issue on which reasonable minds could differ, as Fritz conceded.
Fritz contends the sheriff’s statement was factual in nature because the sheriff did not use hyperbolic or figurative language. He further argues the statement was not broad, subjective, or qualified by language suggesting the statement was the sheriff’s personal opinion, such as the phrases “I consider that” or “I believe.” For reasons explained above, we conclude the sheriff’s statement was in the nature of an opinion rather than an objective statement of fact. Further, while it is true that the use of hyperbole and figurative language tend to indicate a speaker is expressing opinion instead of fact, the absence of such language in a statement does not compel a conclusion the statement is expressed as fact. Nor is it critical that the speaker failed to preface a comment with a qualifier such as “I believe.” Here, the context of the statement indicates the sheriff was expressing his opinion, even though he did not clarify he was merely offering an opinion. No such clarification was necessary.
Taking into account the totality of the circumstances in which the sheriff’s statement was made, a reasonable trier of fact could not conclude the statement implies a provably false factual assertion.
b. Sheriff Doyle’s Statement of Opinion did not Imply the Existence of Undisclosed Defamatory Facts.
Fritz argues that the court should not end its inquiry with a determination of whether the sheriff’s statement was an opinion. He contends we must determine whether the opinion necessarily implies the existence of undisclosed defamatory facts. While we agree this is an appropriate inquiry, we do not agree that the sheriff’s statement implied the existence of any undisclosed defamatory facts.
It has long been recognized that a statement of opinion may be actionable as defamation “ ‘if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.’ [Citations.]” (Copp v. Paxton (1996) 45 Cal.App.4th 829, 837.) This principle of law derives from section 566 of the Restatement Second of Torts and is consistent with the notion that one may be liable for defamation if “ ‘the published statements imply a provably false factual assertion.’ ” (Kahn v. Brewer, supra, 232 Cal.App.3d at p. 1607.)
Section 566 of the Restatement Second of Torts provides: “A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”
Fritz urges that because Sheriff Doyle did not disclose the facts of the incident during his interview with the reporter, the sheriff’s statement—even if considered opinion—was necessarily based on undisclosed defamatory facts. The implication is that unless a speaker fully discloses the facts on which an opinion is based, one must assume the opinion rests on undisclosed and potentially defamatory facts. This implication is flawed.
When the underlying facts are well known, or where the party to the communication is aware of the facts on which the opinion is based, it is unnecessary for the speaker to explain the factual basis for an opinion. As explained in the Restatement Second of Torts, a “pure type of expression of opinion” occurs “when both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts in order to justify the comment. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.” (Rest.2d Torts, § 566, com. b, p. 171.)
The facts of the underlying incident here were well known. In this connection, it should be noted that nowhere does Fritz contend the facts of the incident itself are defamatory or that he did not engage in the actions that led to the disciplinary charges against him. The reporter who interviewed Sheriff Doyle was obviously aware of the predicate for the sheriff’s opinion because the reporter wrote an article describing the facts of the incident as well as the procedural history of the disciplinary action against Fritz. Further, the sheriff’s statement is plainly based on the assumed facts. There is no implication the sheriff’s opinion rests on facts other than those that the parties to the communication assumed to be true. Such an implication might be made if the sheriff had said, “If you knew what I know, you’d understand that this was an incident of excessive force.” Of course, the sheriff made no such statement. Rather, he offered his opinion without any suggestion it was based on facts unknown to the reporter. Accordingly, we conclude the sheriff’s opinion does not imply the existence of undisclosed, defamatory facts.
3. Intentional Infliction of Emotional Distress
Fritz contends triable issues of material fact preclude summary judgment on his cause of action for intentional infliction of emotional distress. He offers no separate factual or legal support for this contention, but instead relies on “the same reasons” offered to show that triable issues of material fact preclude summary judgment on his slander cause of action. Having concluded the slander cause of action presents no triable issues of material fact, we likewise conclude there are no triable issues of material fact precluding summary judgment on the cause of action for intentional infliction of emotional distress. We also agree with the trial court’s conclusion that Fritz cannot establish Sheriff Doyle engaged in extreme or outrageous conduct that would support a cause of action for intentional infliction of emotional distress. (See KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)
4. Liability of County and Sheriff’s Department
A public entity is liable for the acts or omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer. (See Gov. Code, § 815.2, subd. (a); Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 141; but see Gov. Code, § 815.2, subd. (b) [public entity not liable if employee enjoys immunity].) In this case, the sole basis offered for imposing liability on the County of Marin and the Marin County Sheriff’s Department is the doctrine of respondeat superior. Because Sheriff Doyle was entitled to summary judgment, we necessarily conclude summary judgment was proper as to his employers, the County of Marin and the Marin County Sheriff’s Department.
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Parrilli, J., Pollak, J.