Degrassi v. Cook, S094248.

• Decision Date: 27 November 2002
• Docket Number: No. S094248.,S094248.
• Citation: 58 P.3d 360,29 Cal.4th 333,127 Cal.Rptr.2d 508
• Court: California Supreme Court
• Parties: Christine DeGRASSI, Plaintiff and Appellant, v. Arthur COOK, as City Manager, etc., et al., Defendants and Respondents.

127 Cal.Rptr.2d 508

29 Cal.4th 333

58 P.3d 360

Christine DeGRASSI, Plaintiff and Appellant, v. Arthur COOK, as City Manager, etc., et al., Defendants and Respondents.

No. S094248.

Supreme Court of California.

November 27, 2002.

Robert L. Kern, Canoga Park, and Scott E. Wheeler, Chino Hills, for Plaintiff and Appellant.

Terry Francke for California First Amendment Coalition as Amicus Curiae on behalf of Plaintiff and Appellant.

Leboeuf, Lamb, Greene & MacRae, Sharon C. Corda, Los Angeles; Bannan, Green, Frank & Terzian and Richard R. Terzian, Los Angeles, for Defendants and Respondents Arthur Cook, Sue Bauer, Paul Butler, Albert Fishman and Marshall Mouw. Pollak, Vida & Fisher, Scott J. Vida and Daniel P. Barer, Los Angeles, for Defendant and Respondent Burke, Williams and Sorensen.

GEORGE, C.J.

As in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 127 Cal.Rptr.2d 482, 58 P.3d 339 (Katzberg), in this case we consider whether an individual may bring an action for money damages on the basis of an alleged violation of a provision of the California Constitution, in the absence of a statutory provision or an established common law tort authorizing such a damage remedy for the constitutional violation. Here plaintiff, a former city council member, seeks damages to remedy an alleged violation of the free speech clause of the California Constitution, article I, section 2, subdivision (a) (hereafter article I, section 2(a)), based upon the conduct of various city officials and other individuals that assertedly interfered with plaintiffs performance of her duties. We conclude that an action for damages is not available.¹

I.

Plaintiff Christine Degrassi² served as a member of the Glendora City Council from 1994 until March 1999. She commenced the present suit in 1998, while her related action was pending in federal court. In order to place the present matter in context, we first briefly describe the federal litigation.

In 1997 plaintiff sued three groups of defendants, alleging that they violated, among other things, her free speech rights. The defendants, who also are the defendants in the present litigation, were (i) three members of the city council, the chief of police, and the city manager, Arthur Cook—the lead defendant in the present litigation (the City defendants), (ii) the law firm of Burke, Williams, and Sorensen, attorneys for the City of Glendale (the law firm defendants), and (iii) three members of a family that resided in Glendora (the Andrews defendants).³ The suit was removed to federal court. In a subsequently amended complaint, plaintiff pressed claims for, among other things, damages under 42 United States Code section 1983 (section 1983 claim), to remedy asserted free speech violations under the First Amendment to the federal Constitution. Plaintiff also prayed for damages to remedy an asserted violation of free speech rights under article I, section 2(a) of the California Constitution. The federal district court ruled against plaintiff on her federal civil rights claim, but declined to rule on the state free speech claim. On appeal, the Ninth Circuit Court of Appeals described plaintiffs claims as follows:

"She alleges that from the time of her election ..., the defendants ... subjected her to a campaign of harassment and intimidation because they opposed her political views. She claims that defendants barred her from participating in Council business, prevented her from communicating with City staff, and threatened her both physically and with litigation should she disclose the wrongdoing of any City employee. Much of the conduct complained of occurred as a result of [plaintiffs] objection at a City Council meeting in 1996 to the granting of landmark status to a building in Glendora whose prior owner, she claimed, was a child molester. The owners of the building, the Andrews family, filed a [defamation] action (the Andrews action) against [plaintiff] based on her comments at the City Council meeting. [Plaintiff] claims this action, which was eventually dismissed, was filed in retaliation for her political views. [¶] [Plaintiff] sought to have the City provide her a defense against the Andrews action. On several occasions during October 1996, the City Council held closed sessions to consider [plaintiffs] demand. [Plaintiff] was excluded from these meetings. She contends this conduct was part of a continuing campaign to interfere with her First Amendment rights and to destroy her political reputation and career ...." (DeGrassi v. City of Glendora (9th Cir. 2000) 207 F.3d 636, 640 (DeGrassi I).)

The Ninth Circuit affirmed the dismissal of plaintiffs First Amendment and section 1983 claims, on the grounds that some of the underlying claims were time-barred (DeGrassi I, supra, 207 F.3d 636, 644-645), and that the remaining claims against the three groups of defendants failed to allege facts sufficient to make out a First Amendment violation. (Id., at pp. 645-647.)

While the federal action was pending, plaintiff commenced the present action in the Los Angeles Superior Court. In an amended complaint filed in April 1999 (the operative complaint here), which tracked and supplemented the allegations in the federal complaint, plaintiff alleged that all three groups of defendants violated her free speech rights under article I, section 2(a) of the state Constitution, and sought damages for that asserted violation. Plaintiff also alleged, among other things, a claim of conspiracy to violate her state constitutional rights. In support of these claims, plaintiff alleged that defendants excluded her from council meetings, deprived her of notice of meetings, denied her access to information, and otherwise interfered with her participation as a city council member. Specifically, plaintiff asserted among other things:

(1) She was subjected to ongoing threats, intimidation, and retaliation by defendants from the time she was elected to the city council in April 1994, through the end of her term in March 1999.(2) Defendants "threatened [her] on more than one occasion that she would be the subject of civil lawsuits or `other unpleasant' consequences unless she refrained from acting or discussing matters of public interest relating to operations of the City." (3) The City defendants and the law firm defendants assisted the Andrews defendants in filing a defamation lawsuit against plaintiff, "with the goal in mind of chilling and preventing the speech of the plaintiff on matters of public concern." (4) The City defendants and the law firm defendants suppressed information in retaliation for the views expressed by plaintiff and the votes she made as a city council member— "with the ultimate goal being to force the plaintiff to resign." (5) Plaintiff was "regularly subjected to public humiliation by the statements of the defendants and members of the public who were not aware of the true facts ...." (6) As a result of these actions, plaintiff was deprived of her rights to attend city council meetings and to speak out as a city council member representing her constituents, all in violation of plaintiffs free speech rights under article I, section 2(a).

Defendants demurred on the ground that article I, section 2(a) does not support a private cause of action for damages and, consequently, a cause of action for conspiracy to violate this constitutional provision also does not lie. The trial court sustained the demurrers without leave to amend and dismissed the action. On review, the Court of Appeal affirmed, holding that article I, section 2(a) does not support a cause of action for damages, and that plaintiff therefore cannot state a cause of action for conspiracy predicated on that underlying claim.

As in Katzberg, supra, 29 Cal.4th at p. 307, 127 Cal.Rptr.2d 482, 58 P.3d 339 we shall assume for purposes of analysis that the facts alleged support a conclusion that defendants' conduct violated plaintiffs free speech rights under article I, section 2(a).⁴

II.

We begin by stressing, as in Katzberg, supra, 29 Cal.4th 300, 127 Cal. Rptr.2d 482, 58 P.3d 339, that the question presented here does not turn upon whether article I, section 2(a) is "self-executing." Indeed, the free speech clause of article I, section 2(a) "is self-executing, and ... even without any effectuating legislation, all branches of government are required to comply with its terms. Furthermore, it also is clear that, like many other constitutional provisions, this section supports an action, brought by a private plaintiff against a proper defendant, for declaratory relief or for injunction." (Katzberg, supra, 29 Cal.4th at p. 307, 127 Cal.Rptr.2d 482, 58 P.3d 339.) The only issue that we need resolve in this case is whether, assuming that the alleged facts demonstrate a violation of plaintiffs free speech rights, plaintiff has stated an action for relief in damages.

Our opinion in Katzberg traces the development of federal, sister-state, and California case law, addressing the availability of money damages in an action brought to remedy a violation of a constitutional provision (Katzberg, supra, 29 Cal.4th at pp. 307-317, 127 Cal.Rptr.2d 482, 58 P.3d 339), and then sets out an approach to analyzing that issue. (Id., at pp. 317-329, 127 Cal. Rptr.2d 482, 58 P.3d 339.) We proceed to follow and apply the approach set out in Katzberg. First, we shall inquire whether there is evidence from which we may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation. Second, if no such affirmative intent either to authorize or to withhold a damages remedy can be found, we shall undertake the constitutional tort analysis adopted by Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, and its progeny. (Katzberg, at p. 317, 127 Cal.Rptr.2d 482, 58 P.3d 339.)

A.

As we observed in Katzberg...