Ass'n for L.A. Deputy Sheriffs v. L.A. Times Commc'ns LLC, B253083

Citation191 Cal.Rptr.3d 564,239 Cal.App.4th 808
Decision Date21 July 2015
Docket NumberB253083
CourtCalifornia Court of Appeals
PartiesASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS et al., Plaintiffs and Appellants, v. LOS ANGELES TIMES COMMUNICATIONS LLC, Defendant and Respondent.

Green & Shinee and Elizabeth J. Gibbons ; Benedon & Serlin, Gerald M. Serlin and Kelly R. Horwitz for Plaintiffs and Appellants.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Los Angeles, and Daniel A. Laidman ; Los Angeles Times Communications and Jeffrey D. Glasser for Defendant and Respondent.

Opinion

EGERTON, J.*

“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.” (New York Times Co. v. United States (1971) 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (New York Times. ) [P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (Nebraska Press ).) “The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events.” (Ibid. )

In this case, the union representing deputy sheriffs in the Los Angeles County Sheriff's Department sued to enjoin the Los Angeles Times from publishing news reports about the department's hiring of officers who used to work for the county's office of public safety. The union alleged that a Times reporter had documents and information from the applications and background checks on the deputies. The trial court granted the Times 's anti-SLAPP motion.1 The union and unnamed Doe plaintiffs appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
1. The Office of Public Safety and the Los Angeles County Sheriff's Department

According to appellants, the Los Angeles County Office of Public Safety (OPS) used to be a law enforcement agency separate from the Los Angeles County Sheriff's Department (LASD). In 2010, the county decided to merge OPS into LASD. Apparently, OPS officers who wanted to work for LASD were required to complete application forms for LASD. LASD hired former OPS officers to work as deputy sheriffs.

The LASD application form is 17 pages long. The form asks for (among other things) the names and addresses of family members, previous employment, military service, educational background, current debts, monthly income and expenditures, and references. The application form also requires applicants to state whether they have ever been fired from a job or reprimanded at work, expelled or suspended from school, court-martialed or otherwise disciplined by the military, arrested as a juvenile or adult, been the subject of a call to police, or had their driver's license suspended or revoked.

The form does not say that the information the applicant provides will be kept in confidence. Applicants also are required to sign an “Information Waiver” authorizing others to release “confidential and privilege [sic ] information to LASD [f]or [the] specific purpose” of LASD's consideration of the application. At least as of September 2013, LASD “assured” the applicant “of the confidential nature of his application and that it will not be divulged.” It was the “understanding” of at least one deputy who joined LASD from OPS in June 2010 “when [he] submitted [his] application and the supporting documentation that all this information would be maintained by the Sheriff's Department as confidential.” At least as of September 2013, LASD's practice was to contact all five references an applicant listed and to ask, for example, about the applicant's temperament, drinking habits, and drug use. At least as of September 2013, LASD's practice was “to provide assurances to these references that their names and comments will be held in strict confidence.”

In July 2013 two LASD deputies who had worked for OPS received telephone calls from a man who identified himself as Robert Faturechi, a reporter for the Los Angeles Times. Faturechi told one deputy that he had a copy of the deputy's “complete background investigation file,” and that he had obtained “several other deputies' background files ...from a source within the Department.” That deputy agreed to meet with Faturechi. Faturechi asked the second deputy about his disciplinary record when he worked for OPS. Faturechi told both deputies that he was writing an article for the Times about LASD's hiring of former OPS deputies.

2. The Complaint and Application for Injunctive Relief

On September 10, 2013, the union representing deputy sheriffs in LASD--the Association for Los Angeles Deputy Sheriffs (ALADS)--filed a complaint and an ex parte application for a temporary restraining order and order to show cause, seeking preliminary and permanent injunctions. The complaint also listed as plaintiffs “Deputy John Doe[s] 1 through 13, “Deputy Jane Doe-1,” and “500 Similarly Situated ALADS Members.” The complaint named as defendants Robert Faturechi, a Los Angeles Times reporter,2 and Los Angeles Times Communications LLC.

ALADS alleged a single cause of action entitled: “CAUSE OF ACTION for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction Preventing Release of Confidential Personnel, Education, Medical and Credit Information.” ALADS alleged that, in applying for employment with LASD, the former OPS officers were required to provide a substantial amount of confidential and private information. ALADS also alleged that background checks for the applicants involved “interview statements,” and that LASD's “practice” was “to promise, and provide, confidentiality to the people making these statements in order to obtain the fullest, most complete, and most candid statements concerning the applicant as possible.” ALADS alleged that [a]t some unknown time prior to August, 2013, Defendant Faturechi stole, received from someone else who stole, or otherwise unlawfully came into physical possession of the confidential background investigation files of Deputy John Doe and approximately 500 other County peace officers who are similarly situated to Deputy Doe.” ALADS alleged Faturechi had contacted some of the OPS/LASD deputies to ask them questions.

ALADS prayed for an injunction barring the Times from [r]eleasing or publishing, in print, on line, or in any other media or format, to the public” any information “obtained from or contained in the background investigation files,” including the deputies' names, photographs, and [a]ny non-public criminal history.” ALADS also sought a court order requiring the Times “to immediately return” to LASD3 “each and every copy of every Sheriff's Department background investigation file [that] were [sic ] unlawfully obtained by Defendants [sic ] Faturechi.”

A hearing on ALADS's ex parte application for a temporary restraining order and order to show cause apparently was held on September 10, 2013, in a writs department.4 The trial court denied ALADS's application. The court noted the Doe declarations ALADS submitted “contain no personal details about the declarants that would relieve them of the obligation of identifying themselves, particularly when the declarations contain the hearsay statement of defendant Faturechi concerning when the article is going to be published and what it will contain--the evidence most critical to the showing of irreparable harm or immediate danger that plaintiff must make to justify ex parte relief.” The court also observed, “The declarations are also very vague in their reference to the personal information that Faturechi told the declarants he would be publishing.” The court “decline[d] to issue a TRO imposing a prior restraint on defendants' free speech based on the speculative hearsay testimony of anonymous witnesses.”

The court denied the application on the additional ground that ALADS--by its own admission--had known for weeks if not months that the Times had information from the OPS/LASD deputies' files, that notwithstanding this knowledge it had not proceeded by noticed motion, and therefore that “any exigency appear[ed] to be of [ALADS's] own making....”

3. The Times's Anti-SLAPP Motion and the Trial Court's Ruling

The case was assigned to a calendar and trial court. The Times filed an anti-SLAPP motion, arguing that the injunction ALADS sought would be an unconstitutional prior restraint. ALADS filed opposition. ALADS argued that the court should delay ruling on the motion until it could depose Faturechi, that the SLAPP statute did not apply because Faturechi's possession of the files was “illegal as a matter of law,” that ALADS had shown a probability of prevailing on its claim, and that the injunctive relief it sought was not a prior restraint because it was not “content-based.” ALADS submitted declarations from two deputy sheriffs doing background checks in the personnel bureau, two deputy sheriffs identified only as John Does 3 and 14,5 a man who owns a company that helps “law enforcement officers and their families in removing private and personal information from the Internet,” and a sergeant who was “investigat[ing] the theft” of the files. The Times filed evidentiary objections to parts of the declarations.

The trial court held a hearing on the special motion to strike on October 9, 2013. The court sustained many of the Times's evidentiary objections to ALADS's declarations and overruled others. At the conclusion of the hearing the court granted the motion. The court first noted that the SLAPP statute generally stays discovery absent a noticed motion showing good cause. The court agreed with the Times that “the qualifications, conduct, and identities of peace officers are matters of public interest,” citing Gomes v. Fried (1982) 136 Cal.App.3d 924, 933, 186 Cal.Rptr. 605 (“ ‘law enforcement is a primary function...

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