Bradbury v. Superior Court

• Decision Date: 01 October 1996
• Docket Number: Nos. B101185,B098366,s. B101185
• Citation: 49 Cal.App.4th 1108,57 Cal.Rptr.2d 207
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7344, 96 Daily Journal D.A.R. 12,037 Michael D. BRADBURY, as District Attorney, etc., et al., Petitioners, v. SUPERIOR COURT of the State of California, County of Ventura, Respondent. Gary SPENCER, Real Party in Interest.

Page 207

57 Cal.Rptr.2d 207

49 Cal.App.4th 1108, 96 Cal. Daily Op. Serv. 7344,

96 Daily Journal D.A.R. 12,037

Michael D. BRADBURY, as District Attorney, etc., et al., Petitioners, v. SUPERIOR COURT of the State of California, County of Ventura, Respondent Gary SPENCER, Real Party in Interest.

Nos. B101185, B098366.

Court of Appeal, Second District, Division 6, California.

Oct. 1, 1996.

As Modified on Denial of Rehearing

Oct. 31, 1996.

Review Denied Jan. 15, 1997.

Law Office of Glen M. Reiser, Glen M. Reiser, Oxnard, for Petitioners.

No appearance for Respondent.

Franscell, Strickland, Roberts & Lawrence; David D. Lawrence and Priscilla F. Slocum, Pasadena, for Real Party in Interest.

YEGAN, Associate Justice.

"[T]he great principles of the Constitution which secure freedom of expression ... preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." (Garrison v. Louisiana (1964) 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125, 132.) Here utterances by a district attorney on a matter of public interest, even if erroneous, promote the goals of the First Amendment, i.e., the free interchange of ideas and the ascertainment of truth. To further this goal, we hold that Code of Civil Procedure section 425.16, enacted to curtail SLAPP suits (Strategic Lawsuits Against Public Participation), applies to a governmental entity and its representatives who are sued for their written and verbal comments concerning an official investigation. ¹ Thus, here it is the marketplace of ideas, not the tort system, by which our society evaluates the merits of the utterances. (See Grillo v. Smith (1983) 144 Cal.App.3d 868, 872, 193 Cal.Rptr. 414.)

Factual and Procedural Background

Donald Scott was shot and killed by Los Angeles County Deputy Sheriff Gary Spencer during a search of Scott's residence. Spencer believed that Scott was cultivating marijuana and obtained a warrant to search Scott's 200-acre ranch in Ventura County. In a search warrant affidavit, Spencer declared that a confidential informant had reported that Scott was growing several thousand marijuana plants. He also declared that the presence of marijuana was corroborated by an aerial flyover of the ranch.

On the morning of October 2, 1992, 30 law enforcement officers entered the Ventura County ranch and served the warrant. Spencer made a forcible entry into the residence. He shot and killed Scott, who was wielding a firearm. The autopsy revealed that Scott was under the influence of alcohol and valium. No marijuana plants were found on the property.

The incident was highly publicized and resulted in a federal civil rights action against the Los Angeles County Sheriff, Spencer, and others. (Estate of Donald Scott v. Sherman Block, United States District Court, Central District, CV-93-1319.)

The Ventura County District Attorney conducted an investigation and issued a public report exculpating Spencer from criminal liability. The report, however, questioned the veracity of the search warrant affidavit and suggested that Spencer's primary motivation was to seize the property as part of a drug forfeiture. The report stated: "It is the District Attorney's opinion that that Los Angeles County Sheriff's Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government.... Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott's death warrant." The report made numerous recommendations and was forwarded to the grand jury and other law enforcement agencies for their review.

The Sheriff of Los Angeles County conducted his own investigation, exculpated Spencer, but reached other opinions which contradicted those of the Ventura County District Attorney. Reduced to simple terms, two different law enforcement agencies drew different inferences from the facts. We need not, can not, and do not attempt to resolve this dispute. Such a theoretical resolution is irrelevant to the First Amendment issues here tendered.

Spencer filed suit against the County of Ventura, Ventura County District Attorney Michael D. Bradbury, Assistant District Attorney Kevin McGee, Deputy District Attorneys Michael Schwartz and Kevin DeNoce, and District Attorney Investigator Richard Haas. The complaint alleged causes of action for defamation (defamation, libel, and libel per se), violation of the California civil rights statute (Civ.Code, § 52.1), violation of the Information Practices Act of 1977 (Civ.Code, § 1798), invasion of privacy, abuse of process, intentional infliction of emotional distress, violation of Spencer's federal civil rights (42 U.S.C. § 1983), and conspiracy (42 U.S.C. § 1985). The complaint also alleged that petitioners defamed Spencer in the report and in subsequent media interviews, including an appearance on the television show "20/20."

By stipulation, the action was transferred from Los Angeles County to Kern County. Petitioners successfully demurred to five of the causes of action. ² The trial court overruled the demurrer on the remaining causes of action for defamation, intentional infliction of emotional distress, and violation of Spencer's federal civil rights. On petitioners' motion, the matter was transferred to Ventura County.

Petitioners filed a petition for writ of mandate challenging the Kern County Superior Court's ruling on the demurrer. (Case No. B091851.) We issued an alternative writ, then vacated the writ, and denied the petition. Petitioners sought review in the California Supreme Court. The Supreme Court denied review without prejudice to the filing of a new writ petition naming the Ventura County Superior Court. (Case No. S049823.) Petitioners filed a new petition for writ of mandate. (Case No. B098366.) We denied the petition. The Supreme Court granted review and transferred the matter to this court with directions to issue an alternative writ. (Case No. S051279.)

During the pendency of the writ proceeding, petitioners brought a special motion to dismiss the complaint pursuant to section 425.16. The trial court ruled that section 425.16 did not apply and denied the motion. Petitioners challenged the ruling by filing the instant mandate petition. (Case No. B101185.) We issued an alternative writ, stayed the trial proceedings, and consolidated both writ petitions.

The Anti-SLAPP Statute

A SLAPP suit has been described as "a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights. [Citation.]" (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, 33 Cal.Rptr.2d 446.) Section 425.16, the anti-SLAPP suit statute, states in pertinent part: "(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. [p] (b) A cause of action against a person arising from any act of that person in furtherance of a person's right of petition or free speech under the United States or 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." One of the purposes of the statute is to eliminate meritless litigation at an early stage. (Id., at p. 824, 33 Cal.Rptr.2d 446.)

Governmental Speech

Spencer contends that section 425.16 protects private citizens but not a governmental entity or its representatives. The argument is premised on the theory that a government entity and its representatives have no First Amendment rights. The trial court adopted this argument and found that section 425.16 did not apply. At the hearing on the motion, the trial court criticized the Legislature for "being very fast and loose with a person's rights to sue for civil damages.... [p] I think the First Amendment issues in this case are far too serious to be dealt with cavalierly in a statute such as this. And I think--my current view is this is not a SLAPP suit. This is not the kind of a lawsuit that is intended by the statute...."

The trial court's reading of the statute was too narrow. Section 425.16, subdivision (b), refers to a "person's right of ... free speech" without qualification. Spencer's assertion that a governmental entity is not a "person" is without merit. Government can only speak through its representatives. A public entity is vicariously liable for the conduct of its employees acting within the scope of their employment, but only to the extent that the employees are liable. (Gov.Code, § 815.2, subd. a); Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819, 131 Cal.Rptr. 854.) Under the federal civil rights statute, municipalities and counties are also treated as if they were persons. (Monell v. Department of Social Services (1978) 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611, 635; Moor v. County of Alameda (1973) 411 U.S. 693, 717-718, 93 S.Ct. 1785, 1799-1800, 36 L.Ed.2d 596, 615.) Given these precedents, as well as the compelling interest in the promotion of freedom of speech, the word "person" as used in section 425.16, subdivision (b) must be read to include a governmental entity. ³

Our courts have applied section 425.16 to suits against media defendants...