Opinion
E031591.
11-13-2003
KAY NESHAT, Plaintiff and Respondent, v. COUNTY OF SAN BERNARDINO et al., Defendants and Appellants.
Alan K. Marks, County Counsel and Dennis E. Wagner, Deputy County Counsel, for Defendants and Appellants County of San Bernardino and San Bernardino Office of the Public Defender. Brunick, Battersby, McElhaney & Beckett and Stephen Miller for Defendant and Appellant Michael J. Kennedy. Paul & Janofsky, Gary M. Paul; Goldberg Ball and Michael L. Goldberg for Plaintiff and Respondent.
1. Introduction
Plaintiff Kay Neshat, a deputy district attorney for the County of San Bernardino in Victorville, discovered that defendant Michael Kennedy, a public defender for the same county, made an offensive comment of a sexual nature concerning her during a chambers conference. Based on Kennedys comment and other offensive conduct, Neshat sued Kennedy, the San Bernardino Office of the Public Defender, and the County of San Bernardino for defamation, intentional infliction of emotional distress, and negligent supervision. The trial resulted in a special verdict and a judgment of $250,000 in plaintiffs favor. Defendants filed motions for new trial and for judgment notwithstanding the verdict on many of the same grounds raised throughout the trial, including defenses under the First Amendment of the federal Constitution, the litigation privilege under Civil Code section 47, subdivision (b), and the exclusive remedy provisions of the workers compensation law. After the court denied their motions, defendants appealed.
This opinion will refer to both the San Bernardino Office of the Public Defender and the County of San Bernardino collectively as "the County" unless otherwise specified.
On appeal, the County raises the following claims: Kennedys statement was protected by the First Amendment; Neshats claims are barred by the workers compensation law; Neshats negligent supervision claim lacked legal and evidentiary support; the trial court made several evidentiary errors; and the court awarded excessive damages. In addition to joining in or providing further argument in support of the Countys claims, Kennedy also adds that Neshats causes of action were barred under the absolute litigation privilege; the court abused its discretion in admitting evidence pertaining to the malice requirement of defamation against a public figure; the court erred in failing to bifurcate the negligent supervision cause of action; and the court made several errors amounting to judicial misconduct.
We conclude that Kennedys statement was a purely subjective opinion, rather than a factual assertion, and thus, was protected under the First Amendment. Because the statement provided the basis for all of Neshats causes of action, our conclusion resolves the entire lawsuit. We need not address defendants other claims. We reverse the trial courts judgment.
2. Factual and Procedural History
Neshat has been employed as a deputy district attorney with the County of San Bernardino in Victorville since 1983. Neshat primarily prosecuted child abuse cases involving sexual or physical abuse. Kennedy has been employed as a public defender with the same county for about 10 years. The two attorneys worked on opposing sides in three or four child molestation cases.
On September 16, 1998, Judge Stephen Ashworth held an informal conference in his chambers. Judge Ashworth discussed the "Barajas" case with attorneys Jim Hill and Dennis Bright. Attorneys Kennedy, Tristan Svare, Richard Smolin, and Robert Ponce were also present in the judges chambers. During the conference, someone mentioned the "Barajas" case and another person described it as the "pervert case." Some giggling followed. Hill, who was a deputy district attorney, stated that he was appearing on behalf of Neshat, who as assigned to the case. After Hill mentioned Neshat, Kennedy commented, "We know who the biggest pervert is." He also added, "She sits on the toilet issuing [her cases] and gets off."
After the incident, on September 17, 1998, Svare, another deputy district attorney, wrote an interoffice memorandum to Chief Deputy District Attorney Dennis Christy and Supervising Deputy District Attorney Ron Barbatoe concerning Kennedys comment.
Christy kept a file on Kennedy, who was known for personally attacking other participants in the criminal justice system with insulting and degrading statements. On at least two other occasions, Kennedy directed his offensive statements at Neshat. In a July 10, 1998, motion to suppress evidence in another child molestation case, Kennedy wrote: "No wonder the DA gets so lathered up about this tape: she realizes it is in her hands illegally and cannot be used at trial; many of us thought she was getting so exercised, on that topic, for other, unmentionable reasons." At a hearing on October 28, 1998, after Neshat mentioned the word, "sodomy," Kennedy remarked, "I know that everyone loves to keep saying certain words on the record. It gives people [the] jollies."
On occasion, Christy discussed Kennedys behavior with Chief Deputy Public Defender Gerald Farber. Farber responded that the incidents were often not serious. In addressing the more serious comments, Farber admitted that he had difficulty dealing with Kennedy.
After receiving Svares September 17, 1998, memorandum, Christy had an informal discussion with Farber. A couple of weeks later, Assistant District Attorney Daniel Lough wrote Public Defender David McKenna a formal complaint concerning Kennedys unacceptable behavior.
The public defenders office conducted an investigation. Farber specifically asked Kennedy about the alleged statement. As consistent with his trial testimony, Kennedy denied making the statement.
On June 1, 1999, Neshat filed her complaint alleging the following causes of action: harassment and discrimination, intentional infliction of emotional distress, defamation, negligence, and negligent supervision. Plaintiff alleged, among other things, that Kennedy made sexually explicit statements, including the statements made on July 10, 1998, September 16, 1998, and October 28, 1998. Plaintiff alleged that these statements constituted slander per se, and formed the basis of her other causes of actions.
In addition to several other pretrial motions, County and Kennedy filed motions for summary judgment or summary adjudication, raising various defenses, including the litigation privilege under Civil Code section 47, subdivision (b). In their initial moving papers, however, defendants failed to address the First Amendment defense or argument. In its reply brief, County for the first time argued that Kennedys statements were protected under the First Amendment because they were statements of opinion, rather than false statements of fact. During the hearing on defendants motion, Neshat noted that defendants had failed to raise the issue earlier in their moving papers. After observing that the issue would likely reappear in another setting, the trial court rejected the Countys argument. For other reasons, the court granted summary judgment or summary adjudication on Neshats harassment and negligence causes of action. The court also found that both the June 10, 1998, and the October 28, 1998, statements were covered under the litigation privilege.
As predicted by the court, defendants again raised the First Amendment argument along with other arguments in a motion for judgment on the pleadings. During the hearing on the motion, Kennedy argued that the issue hinged on the question of whether the September 16, 1998, statement was reasonably believable. Neshat responded that this determination should be made by the jury. The court again rejected the First Amendment argument and denied the motion.
On the date set for trial, Kennedy again presented argument that the September 16, 1998, statement was not reasonably believable. The court responded that, "I dont think anyone believes it was true. But it was still injurious of her reputation and her professional standing." The court, therefore, resolved that the question was one for the jury.
Defendants nevertheless continued to raise the First Amendment issue throughout the trial.
After a lengthy trial, the jury returned a special verdict in Neshats favor. The jury specifically found that the September 16, 1998, statement was a provably false assertion of fact, as opposed to an opinion. The jury awarded plaintiff $250,000 in noneconomic damages.
After the court entered judgment for Neshat, defendants filed motions for new trial and judgment notwithstanding the verdict on many of the same grounds raised throughout the trial. The trial court denied the motions.
Defendants appeal from the trial courts judgment and its denial of their posttrial motions.
3. First Amendment
The dispositive question in this case is whether Kennedys September 16, 1998, comment was a factual assertion rather than a purely subjective opinion. The jury found that Kennedy when referring to Neshat said, "We know who the biggest pervert is. She sits on the toilet issuing [her cases] and getting off." This comment alone provided the basis for Neshats causes of action for defamation, intentional infliction of emotional distress, and negligent supervision. In addition to finding that Kennedy made the statement, the jury also found that the statement was a false assertion of fact.
As argued by defendants, however, Kennedys remark could not reasonably be believed to be a statement of actual fact. The question is one of law and should have been determined by the court as a matter of law.
In reviewing the trial courts decision, we apply the substantial evidence standard to the courts resolution of disputed factual questions concerning these First Amendment issues and we apply independent review to the courts determination on the ultimate questions of law.
Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 264; San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 659.
The First Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the freedom of speech. Under First Amendment jurisprudence, this constitutional guarantee affords greater protection to the private individual than the public figure or public official. A public figure or a public official may not recover damages for defamation unless he proves that the statement was made with actual malice—i.e., with knowing of the statements falsity or with reckless disregard to the statements truth or falsity.
Near v. Minnesota (1931) 283 U.S. 697, 707; Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at page 262.
New York Times v. Sullivan (1964) 376 U.S. 254, 279-280; Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at page 262.
As noted by defendants, courts have held that a deputy district attorney is a public official. Unlike a deputy public defender, who may or may not qualify as a public official, a deputy district attorney performs duties that cannot be delegated to a private attorney. The deputy district attorney is entrusted with substantial responsibility over governmental affairs concerning matters of legitimate public concern, including the enforcement of the criminal laws. A deputy district attorney, therefore, may not recover for defamation without a showing of actual malice.
Crane v. Arizona Republic (9th Cir. 1992) 972 F.2d 1511, 1525; Dowd v. Calabrese (D.D.C. 1984) 589 F.Supp. 1206, 1215; see also McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 841, footnote 3.
Compare Tague v. Citizens for Law & Order, Inc. (1977) 75 Cal.App.3d Supp. 16 with James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 11.
See McCoy v. Hearst Corp., supra, 42 Cal.3d at page 841, footnote 3; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1613; see also James v. San Jose Mercury News, Inc., supra, 17 Cal.App.4th at page 11.
In addition to showing malice, the plaintiff also must establish that the alleged defamatory statement constituted a false assertion of fact, rather than mere opinion. "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. Neither the intentional lie nor the careless error materially advances societys interest in `uninhibited, robust, and wide-open debate on public issues. [Citation.] They belong to that category of utterances which `are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [Citation.]"
Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340, footnote omitted.
Statements that are characterized as "opinions" may often imply an assertion of objective fact that can be proven true or false. "Simply couching such statements in terms of opinion does not dispel these implications . . . ."
Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18.
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19.
While relevant, the language therefore is not dispositive. There is no categorical exception to liability in defamation actions for statements of opinion.
See Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19.
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 21.
Rather, the inquiry is whether a reasonable factfinder could conclude that the statement implied a provably false assertion of fact. This is a question of law to be decided by the court. "The allocation of functions between court and jury with respect to factual content is analogous to the allocation with respect to defamatory meaning in general. On the latter issue, the court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the court whether a challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact. If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed."
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 21; Copp v. Paxton (1996) 45 Cal.App.4th 829, 837.
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 17; Copp v. Paxton, supra, 45 Cal.App.4th at page 837; Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1002, footnote 9.
Kahn v. Bower, supra, 232 Cal.App.3d at page 1608.
In this case, assuming that the statement was false and defamatory, the critical issue is whether a reasonable person would interpret it to be an assertion of actual fact. Some statements, while utterly worthless in the "marketplace of ideas," are not actionable because they cannot reasonably be interpreted as stating actual facts.
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 18, citing Abrams v. United States (1919) 250 U.S. 616, 630.
Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 20, citing Greebelt Cooperative Publishing Assn., Inc. v. Bresler (1970) 398 U.S. 6; Letter Carriers v. Austin (1974) 418 U.S. 264; Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46.
In Hustler Magazine, Inc. v. Falwell (hereafter Falwell), Jerry Falwell sued Hustler Magazine and Larry Flynt after discovering that the magazine had featured a parody that insinuated that Falwells "first time" was "during a drunken incestuous rendezvous with his mother in an outhouse." In Falwell, the Supreme Court attempted to strike a balance between allowing the free flow of ideas and protecting a public figure from defamatory falsehoods. A public figure or public official often will face criticism. "Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to `vehement, caustic, and sometimes unpleasantly sharp attacks [citation]." Nevertheless, free speech demands "breathing space." Such breathing space requires an objective standard of measuring constitutionally acceptable speech, rather than a subjective standard based on what society finds as outrageous or offensive. The court concluded that a public figure or public official must show that the publication contains a false statement of fact that was made with actual malice.
Falwell, supra, 485 U.S. 46.
Falwell, supra, 485 U.S. at page 48.
Falwell, supra, 485 U.S. at pages 50-62.
Falwell, supra, 485 U.S. at page 51.
Falwell, supra, 485 U.S. at page 52.
See Falwell, supra, 485 U.S. at pages 52, 55-56.
Falwell, supra, 485 U.S. at page 56.
In applying this standard, the court accepted the jurys finding that the parody could not reasonably be understood as describing actual facts concerning the renowned reverend. Even where the publication was patently offensive and deliberately made to inflict emotional injury, it was protected under the First Amendment guarantee of free speech.
Falwell, supra, 485 U.S. at page 57.
Falwell, supra, 485 U.S. at pages 50, 57.
This court, in Desert Sun Publishing Co. v. Superior Court (hereafter Desert Sun), observed that our national commitment to free speech allows both responsible and irresponsible comments. "The right to criticize involves not only the right to criticize responsibly but to do so irresponsibly. Thus, those engaged in political debate are entitled not only to speak responsibly but to `. . . speak foolishly and without moderation. [Citation.]" From a historical prospective, we noted that certain past presidents and politicians have been charged with being a pimp, committing adultery, and fathering an illegitimate child. Ordinarily, such name-calling does not amount to a statement of fact sufficient to form the basis of a defamation action.
Desert Sun (1979) 97 Cal.App.3d 49.
Desert Sun, supra, 97 Cal.App.3d at page 52.
Desert Sun, supra, 97 Cal.App.3d at page 51.
See Desert Sun, supra, 97 Cal.App.3d at page 52; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 280-281.
In Ferlauto v. Hamsher (hereafter Ferlauto), Jane Hamsher wrote an exaggerated account of the making of the movie, "Natural Born Killers." Hamsher focused on the litigation between Rand Vossler, who was briefly slotted to direct the film, and the films producers, Hamsher and Don Murphy. In her book, Hamsher provided an unflattering characterization of Vossler and his attorney, Thomas Ferlauto, who was never mentioned by name. Ferlauto sued Hamsher and others for defamation based on numerous comments, including ones accusing him of being a "Kmart Johnnie Cochran," a "loser wannabe lawyer," and a "creepazoid attorney."
Ferlauto (1999) 74 Cal.App.4th 1394.
Ferlauto, supra, 74 Cal.App.4th at page 1398.
The court in Ferlauto decided whether Hamshers statements conveyed a provably false assertion of fact. The court explained: "To state a libel claim which is not defeated by the freedom of speech protections of the First Amendment, Ferlauto must allege a statement that is provably false. [Citation.] Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot `"reasonably [be] interpreted as stating actual facts" about an individual. [Citations.] Thus, `rhetorical hyperbole, `vigorous epithet[s], `lusty and imaginative expression[s] of . . . contempt, and language used `in a loose, figurative sense have all been accorded constitutional protection. [Citations.]"
Ferlauto, supra, 74 Cal.App.4th at page 1401.
The court held that none of the comments contained in Hamshers book were actionable. In particular, the court found the phrase "Kmart Johnnie Cochran" to be a "lusty and creative expression of contempt, too loose and figurative to be susceptible of being proved true or false. [Citations.]" The court also concluded that the phrases "creepazoid attorney" and "loser wannabe lawyer" were merely rhetorical hyperbole that could not reasonably be interpreted as stating actual facts. "[Hamshers] expressive phrases are merely name-calling of the `sticks and stones will break my bones variety. They are epithets and subjective expressions of disapproval, devoid of any factual content, reflecting Hamshers `vague expressions of low esteem for Ferlauto. [Citation.]" The court concluded that these phrases, along with numerous other remarks, would commonly be viewed as merely subjective expressions rather than factual assertions.
Ferlauto, supra, 74 Cal.App.4th at pages 1403-1404.
Ferlauto, supra, 74 Cal.App.4th at page 1404.
Ferlauto, supra, 74 Cal.App.4th at page 1404.
Ferlauto, supra, 74 Cal.App.4th at page 1405.
When the challenged statements involve name-calling or other purely subjective expressions of opinion, the First Amendment guarantee of free speech affords broad protection in actions for libel or slander. Other California courts have found the following publications protected under the First Amendment: a radio broadcast accusing plaintiff of being a "big loser," "chicken butt," and a "big skank;" an opponents description of an initiative proponent as a "thief;" a university officials statement concerning a head coachs high-pressure tactics; a newspapers mock letter suggesting that a hotel owner mistreated his tenants; part of comedy routine including disparaging remarks concerning the plaintiffs product; and a high school newspaper insinuating that the campus security guard engaged in inappropriate or illegal conduct.
See James v. San Jose Mercury News, Inc., supra, 17 Cal.App.4th at page 12.
Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798.
Rosenaur v. Scherer, supra, 88 Cal.App.4th 260.
Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572.
San Francisco Bay Guardian, Inc. v. Superior Court, supra, 17 Cal.App.4th 655.
Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543.
Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491.
In this case, we must determine whether Kennedys September 16, 1998, statement was merely a subjective opinion or a factual assertion. The test is "[w]hether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact . . . . [Citations.] This question must be resolved by considering whether the reasonable or `average reader would so interpret the material. [Citations.] The `average reader is a reasonable member of the audience to which the material was originally addressed. [Citations.]" In making this determination, we consider the totality of the circumstances, including the context in which the statement was made. What constitutes a statement of fact in one context may constitute a statement of opinion in another based on the content of the speech and the circumstances surrounding the statement.
Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at page 1500.
See Ferlauto, supra, 74 Cal.App.4th at page 1401.
See Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 67; Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d at page 52.
During an informal conference in Judge Ashworths chambers, Kennedy made the statement in the presence of the judge and other attorneys, Jim Hill, Dennis Bright, Richard Smolin, Robert Ponce, and Tristan Svare. Among those present, Svare alone heard Kennedy making the statement. Svare testified that, after someone characterized the "Barajas" case as the "pervert case," Kennedy accused Neshat of being the "biggest pervert" and issuing her cases while sitting on the toilet "getting off." According to Svare, some responded with giggling, which may have started when the "Barajas" case was referred to as the "pervert case." Svare and Robin Barbatoe, who overheard the comment while she was walking towards the chambers, were shocked by the offensive comment.
Robin Barbatoe, who is also a deputy district attorney, is the wife of Supervising Deputy District Attorney Ron Barbatoe. In this opinion, use of the last name "Barbatoe" is in reference to Robin Barbatoe.
No one, however, believed that Kennedy actually meant that Neshat was a sexual pervert who sat on the toilet and masturbated or became sexually aroused while reading or working on her cases. In his memorandum to his supervisors, Svare reported that Kennedy "took it upon himself to make his common editorial asides to everyone present." During her trial testimony, Barbatoe agreed that the comment was "ludicrous." Chief Deputy District Attorney Dennis Christy testified that, after hearing about the incident, he did not take Kennedys statement literally. Even the trial court remarked that, "I dont think anyone believes it was true."
Moreover, Kennedy had a reputation among local practitioners for personally attacking other attorneys with insulting and degrading comments. According to Barbatoe, it was common knowledge that Kennedy disliked Neshat. The source of the comment, therefore, further suggests that the comment was not taken seriously. The average listener would simply have dismissed it as Kennedys subjective expression of opinion, another one of his "editorial asides."
See Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at page 811.
Under these circumstances, "it would be unreasonable to view the conversation as anything more than the hypothetical, tongue-in-cheek invention it was intended to be." Kennedys statement was not actionable as slander as a matter of law. Because Neshats other causes of action hinged on the fact that Kennedy made the slanderous statement, all of her claims fail as a matter of law.
Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at page 267.
See Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at page 1503; Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d at page 54.
See Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at page 812.
The law requires that we reverse the trial courts judgment. While Kennedy emerges as the winner in this case, this courts decision should in no way be interpreted as condoning such outrageous and unprofessional behavior. While an attorney should vigorously defend his client, there is no justification for an attorney to resort to personal attacks directed at other members of the bar.
Business and Professions Code section 6068 provides that an attorney must maintain the respect due to the courts of justice and judicial officers. Attorneys should conduct themselves in a courteous and professional manner. Professionalism demands that counsel refrain from making disparaging comments toward the court, other attorneys, clients, or witnesses. Courts should not tolerate anything short of professional conduct in any judicial proceedings, whether such proceedings consist of an informal conference in chambers or a formal hearing in the courtroom. When confronted with deliberate and persistent misconduct, the court may admonish offending counsel or, where appropriate, commence contempt proceedings. Unfortunately, very rarely is such conduct subject to official correction. Often attorneys must keep in check their own behavior to ensure that they are conducting themselves in a manner that would maintain the honor of the legal profession and our system of justice.
McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 545, citing In re Grossman (1972) 24 Cal.App.3d 624, 629.
People v. Chong (1999) 76 Cal.App.4th 232, 245.
People v. Chong, supra, 76 Cal.App.4th at page 245.
See Code of Civil Procedure section 128; Rose v. Superior Court (1934) 140 Cal.App. 418, 424-425.
4. Disposition
We reverse the trial courts judgment. Defendants shall recover their costs on appeal.
We concur: Hollenhorst Acting P.J. and McKinster, J.