Degrassi v. Cook

• Decision Date: 30 November 2000
• Docket Number: No. B136407.,B136407.
• Citation: 85 Cal.App.4th 163,102 Cal.Rptr.2d 46
• Court: California Court of Appeals Court of Appeals
• Parties: Christine DEGRASSI, Plaintiff and Appellant, v. Arthur COOK et al., Defendants and Respondents.

102 Cal.Rptr.2d 46

85 Cal.App.4th 163

Christine DEGRASSI, Plaintiff and Appellant, v. Arthur COOK et al., Defendants and Respondents.

No. B136407.

Court of Appeal, Second District, Division 4.

November 30, 2000.

Review Granted February 28, 2001.

Robert L. Kern, Pomona, and Scott E. Wheeler, Covina, for Plaintiff and Appellant.

Leboeuf, Lamb, Greene & MacRae and 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.

CHARLES S. VOGEL, P.J.

STATEMENT OF THE CASE

Plaintiff and appellant Christine Degrassi, a former member of the Glendora City Council, sued defendants and respondents Sue Bauer, Albert Fishman, and Marshall Mouw, also members of the Glendora City Council, Arthur Cook, the City Manager, and Glendora Chief of Police, Paul Butler (the city defendants). In addition, she named the law firm of Burke, Williams and Sorensen as a defendant in its capacity as city attorney ("the law firm").

Degrassi's first amended complaint alleges in extensive detail that the city and law firm defendants excluded her from council meetings, deprived her of notice of meetings, denied her access to information, and generally discouraged, obstructed, and interfered with her participation as a city council person. A full explication of her pleading is simply unnecessary. In summary, Degrassi pleaded that the defendants' conduct was in "violation of her rights to Free Expression under Article I, Section 2 of the California Constitution, and a [second] related cause of action for civil conspiracy."¹ The first amended complaint also purports to allege a third cause of action against the law firm for punitive damages for intentionally and maliciously violating Degrassi's constitutional right of freedom of expression.²

The city defendants demurred on the grounds that article I, section 2 does not support a private cause of action for damages and, as a consequence, a cause of action for conspiracy to violate that constitutional provision does not lie.

On the same grounds as alleged in the first amended complaint, Degrassi filed a motion pursuant to Civil Code section 1714.10 to obtain leave to file a claim for civil conspiracy against the law firm defendant.

The trial court sustained the demurrer of the city defendants to both causes of action without leave to amend.³ In addition, the trial court denied Degrassi's petition to file a conspiracy claim against the law firm defendant, eliminating any further consideration of the second cause of action. On August 23, 1999, the trial court entered a judgment for the law firm defendant and, on September 22, 1999, entered judgment for the city defendants. Degrassi appeals from both judgments.

DISCUSSION

Constitutional Claim for Damages

On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the appellate court will accept as true all facts alleged in the complaint as well as those that may be reasonably inferred. "The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also `give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' [Citations.] [¶] If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39, 77 Cal.Rptr.2d 709, 960 P.2d 513.)

Degrassi candidly and explicitly states the theory of her claims and clearly articulates the issue presented: "The central focus of this appeal revolves around the question of whether or not an individual may maintain a cause of action [for damages] for violation of rights guaranteed pursuant to Article I, Section 2 of the California Constitution."

The primary, if not exclusive, authority on which Degrassi relies is Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813. There a divided court held that article I, section 2 supports a self-executing claim for damages. In other words, the court held the constitutional right to freedom of speech is an entirely self-executing provision and is not dependent on any enabling statutes. No other court has so held.

In Laguna Publishing, the plaintiff Laguna Publishing Company (LPC), a publisher of a throwaway newspaper, filed an action against Golden Rain Foundation of Laguna Hills (GRF). GRF owned the streets and sidewalks in Rossmoor Leisure World, a residential retirement community. GRF controlled access to Leisure World and excluded LPC from delivering unsolicited, free delivery of its newspaper to Leisure World residents. Another defendant was the publisher of a throwaway unsolicited newspaper. It had a longstanding relationship with GRF and had been permitted the exclusive right to deliver its unsolicited, free delivery throwaway publication to Leisure World residents.

LPC pursued its claims on various theories including unfair trade practices and violation of "its free speech and free press rights secured to it under either the federal or state Constitutions." (Laguna Publishing, supra, 131 Cal.App.3d at p. 821, 182 Cal.Rptr. 813.) Prior to the commencement of a jury trial, the court ruled that LPC would not be allowed to "put on evidence of the damages which it incurred as a result of the abridgement of its right of free speech, and [the court] assume[d] . . . that the plaintiff ha[d] suffered actual, demonstrable, compensatory damages arising solely from its exclusion from Leisure World and could have proved such damages had it been permitted to put on such evidence." (Id. at pp. 850-851, 182 Cal. Rptr. 813.)

The Court of Appeal reversed that ruling. It held that LPC should have been able to present evidence of damages accruing from a violation of its constitutionally protected free speech rights. It reasoned that Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91 applied the constitutional inalienable rights arising from "old section 1, article I [of the California Constitution]" to support an action for invasion of privacy to recover damages.⁴ (Laguna Publishing, supra, 131 Cal.App.3d at p. 853, 182 Cal.Rptr. 813.) Using Melvin v. Reid as an analytical springboard, the Laguna Publishing majority held "[I]t is not illogical . . . to hold . . . that a direct right to sue for damages also accrued here by reason of plaintiffs exclusion from Leisure World, and that it accrued under article I, section 2 of the California Constitution." (Ibid.) In essence, the court extrapolated from an inalienable constitutional right of privacy claim (art. I, § 1) for damages the self-executing right to recover damages for a violation of the constitutional right of freedom of speech (art. I, § 2).

The majority explained that it could find no reason to exclude a violation of a constitutional right from the ambit of Civil Code sections 1708 and 3333.⁵ On this premise, the majority concluded there was a statutory framework for the implementation of a right to recover damages for violation of section 1, article II. The court also interpreted the holdings in White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222 and Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 134 Cal.Rptr. 839 as vindicating Melvin v. Reid, supra, 112 Cal.App. 285, 297 P.91. The majority simply reconciled a claim for damages for violation of free speech (art. I, § 2) on the ground that a common law right of privacy had been recognized as an inalienable right (art. I, § 1) in Melvin v. Reid and later legitimatized by decisional law applying the 1972 amendment of article I, section 1.⁶

Justice Kaufman disagreed with the proposition that a self-executing constitutional provision automatically and necessarily gives rise to a cause of action for damages. "The fact that a constitutional provision is self-executing does not establish the remedies that are available for its enforcement. Injunctive or declaratory relief may be available to the exclusion of money damages. [11] Moreover, it is clear that the free press provision of the California Constitution is not self-executing, at least in the sense that its violation gives right to a direct cause of action for damages. Subdivision (a) of section 2 of article I provides: `Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.' (Italics added.) A constitutional provision may be regarded as self-executing `if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms. . . .' [Citations.] Obviously, the language `a law may not restrain or abridge liberty of . . . press' falls a bit short of fixing the `extent of the right conferred' and, a fortiori, `the liability imposed.' Indeed, inasmuch as the prohibition is against abridgement of the right by `[a] law,' it is problematical whether the constitutional provision has any application to the conduct of nongovernmental entities." (Laguna Publishing, supra, 131 Cal.App.3d at p. 858, 182 Cal. Rptr. 813.)

Justice Kaufman also distinguished between the right of privacy cases relied on by the majority and a claim based on article I, section 2. He pointed out the "initiative constitutional amendment to section 1 of article I of the California Constitution, adding privacy to the enumerated inalienable rights, had a unique `legislative...