Rodriguez v. Panayiotou

• Decision Date: 03 December 2002
• Docket Number: No. 00-56923.,00-56923.
• Citation: 314 F.3d 979
• Parties: Marcelo RODRIGUEZ, Plaintiff-Appellant, v. Georgios Kyriacos PANAYIOTOU, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 979

Marcelo RODRIGUEZ, Plaintiff-Appellant, v. Georgios Kyriacos PANAYIOTOU, Defendant-Appellee.

No. 00-56923.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2002.

Filed December 3, 2002.

COPYRIGHT MATERIAL OMITTED

Richard F.G. Thomas, Hermosa Beach, CA, for the plaintiff-appellant.

Jeffrey M. Tillotson, Dallas, TX, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding. D.C. No. CV 99-10576 CBM.

Before REINHARDT, TROTT, and TASHIMA, Circuit Judges.

Opinion by Judge TASHIMA; Dissent by Judge REINHARDT.

OPINION

TASHIMA, Circuit Judge.

Plaintiff-Appellant Marcelo Rodriguez ("Rodriguez") brought this action against Defendant-Appellee Georgios Kyriacos Panayiotou, aka George Michael ("Michael"), for slander per se and intentional infliction of emotional distress, based on statements made by Michael in magazine and television interviews regarding Rodriguez's 1998 arrest of Michael, and the lyrics and video of Michael's newly-released song Outside.¹ The action was dismissed with prejudice for failure to state a claim upon which relief could be granted. Rodriguez timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for further proceedings.

I. BACKGROUND

On April 7, 1998, Rodriguez, a police officer for the City of Beverly Hills, California, was working with his partner in Will Rogers Park in Beverly Hills due to complaints of lewd acts taking place in the men's restroom. Rodriguez entered the park's restroom after observing Michael enter. As he exited one of the stalls, Rodriguez saw Michael fully exposed and engaging in a lewd act. Rodriguez left the restroom, and he and his partner arrested Michael, as he exited the restroom, for disorderly conduct, in violation of California Penal Code § 647(a). Michael pled no contest to the charge. He was fined and placed on probation, which included community service and a requirement to undergo psychological counseling.

In September 1998, Michael released a new song and music video entitled Outside, which made vague references to and parodied the incident. A few months later, in a series of magazine and television interviews to promote his new album, Michael responded to questions regarding the arrest with allegations that Rodriguez had entrapped him. Michael claimed that Rodriguez had induced him to engage in the lewd act for which he was arrested by first exposing himself to and masturbating² in front of him.³ Rodriguez contends that these statements are slanderous per se under California Civil Code § 46 because they accuse him of committing the crime of engaging in a lewd act in a public place and of participating in conduct that would disqualify him from serving as a police officer.

Rodriguez commenced a damage action against Michael in state court, which Michael removed to federal court on diversity grounds. Michael then moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court dismissed the slander and intentional infliction of emotional distress claims with leave to amend and dismissed the negligent infliction of emotional distress claim with prejudice.

Rodriguez then filed an amended complaint, which Michael again moved to dismiss under Rule 12(b)(6). The district court dismissed Rodriguez's amended complaint in its entirety with prejudice, holding that Michael's statements were non-actionable, non-defamatory expressions of opinion, and that Rodriguez's intentional infliction of emotional distress claim failed as a matter of law because the statements, lyrics, and video did not amount to "extreme and outrageous conduct." See Ess v. Eskaton Properties, Inc., 97 Cal.App.4th 120, 118 Cal.Rptr.2d 240, 247 (2002). Rodriguez appeals only the dismissal of his slander claim based on Michael's interview statements.⁴

II. STANDARD OF REVIEW

A dismissal for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), is reviewed de novo. See Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). On review, we take all of the allegations of material fact stated in the complaint as true and construe them in the light most favorable to the nonmoving party. See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir.2002). A complaint "should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002) (citation omitted).

A district court's interpretation of state law is reviewed de novo. See Pacific Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1003 (9th Cir.2001).

III. DISCUSSION

A. California Civil Code § 46

Under California law, slander per se is a "false and unprivileged publication, orally uttered," which fits into at least one of four types of utterances listed in the statute.⁵ See Cal. Civ.Code § 46. Rodriguez contends that Michael's statements are slanderous under two of the statutory categories: (1) by charging Rodriguez with committing a crime, and (2) by tending to "directly injure him" with respect to his profession by "imputing to him [a] general disqualification" to serve as a police officer. See Cal. Civ.Code § 46(1) & (3).

While Michael's statements may not explicitly charge Rodriguez with committing a crime under California law, the statements challenge the legality of Rodriguez's conduct.⁶

Moreover, the specific actions alleged by the statements satisfy the elements required to establish a violation of California Penal Code § 647(a), which states that "every person who ... engages in lewd or dissolute conduct in any public place or in any place open to the public" is "guilty of disorderly conduct, a misdemeanor."

Michael argues nonetheless that his statements did not charge Rodriguez with a crime, contending that the alleged conduct was not criminal because Rodriguez was acting in an undercover capacity and would presumably have been immune from criminal prosecution. We have, however, found no case which would support such a presumption and Michael has cited none to us. While it may be true that police involvement in otherwise illegal acts is often permitted for the purpose of investigating possible violations, see Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561, 28 Cal.Rptr.2d 638, 869 P.2d 1163, 1167 (1994), there is simply no blanket immunity doctrine that covers all types of illegal activity performed by officers in the context of an investigation or an undercover "sting" activity. Cf. People v. Backus, 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837, 849 (1979) (noting that "the immunity granted by section 11367 [of the Cal. Health & Saf.Code] is not a license to peace officers to commit any and all otherwise unlawful acts in the pursuit of narcotics law enforcement objectives"). Limits have been recognized where criminal prosecution may be appropriate. Id. at 850 (holding that where narcotics officers failed to comply with the statutory provisions governing disposition of heroin seized and purchased by the officers, they acted outside the scope of their duties and would not be afforded immunity from prosecution); see also Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (noting that if police "engage in illegal activity" with a defendant "beyond the scope of their duties," the remedy lies in prosecuting them under the applicable provisions of state or federal law).

In the present case, it is doubtful that the police conduct alleged—the exposure of a police officer's genitals and an act of masturbation in a public place—is an accepted practice of the Beverly Hills Police Department in the conduct of undercover operations. Certainly, it is not an issue that can be disposed of on a motion to dismiss. Thus, it can easily be distinguished from the common practice of using undercover vice officers as "decoys for soliciting acts of prostitution," Provigo Corp., 28 Cal.Rptr.2d 638, 869 P.2d at 1167, and is more comparable to an undercover decoy officer actually engaging in the solicited sexual acts with the suspect prior to making the arrest. In such a case, as well as in the case before us, immunity from prosecution cannot be presumed; therefore, dismissal cannot be sustained on this basis.

Likewise, a reasonable fact finder could conclude that Michael's statements accuse Rodriguez of conduct that would disqualify him from service as a police officer, regardless of whether it was done to further an undercover operation. Because of the public nature of the location at which the alleged undercover operation took place, it is likely that the alleged conduct would be perceived not only as an exercise in bad judgment and misconduct on the job but also as a possible threat to children and other residents who use the park restroom.

B. Constitutional Privilege

The district court held that Michael's statements were non-defamatory expressions of opinion that were protected by the First Amendment and not actionable assertions of fact that can give rise to a slander claim.

Before the Supreme Court's decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), it was accepted dogma that all statements of "opinion" were categorically protected by the First Amendment and were therefore not actionable. See Kahn v. Bower, 232 Cal.App.3d 1599, 284 Cal.Rptr. 244, 248 (1991) (citing Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.Rptr. 641, 552 P.2d 425, 428 (1976)).

Relying on this doctrine, the California Supreme Court in Gregory established the rule that in cases where potentially defamatory statements are made in the context of "a public debate, a heated labor dispute, or in another setting in which...