Fierro v. Cnty. of L.A.
| Decision Date | 22 September 2021 |
| Docket Number | B305699 |
| Parties | GEORGE FIERRO, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19PSCV00760, Michael P. Vicencia, Judge. Affirmed.
Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for Plaintiff and Appellant.
Collins Collins Muir + Stewart, Tomas A. Guterres, David C Moore, and Daniel D. Hoffman for Defendant and Respondent.
George Fierro sued the County of Los Angeles and three of its divisions, the District Attorney's Office, the Public Defender's Office and the Alternate Public Defender's Office, for defamation, negligent and intentional infliction of emotional distress and interference with prospective economic advantage, based on inclusion of information regarding Fierro in the County's Officer and Recurrent Witness Information Tracking System (ORWITS) database. The trial court granted the County's special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16)-the anti-SLAPP statute.[1] On appeal Fierro argues his complaint did not arise from protected speech or petitioning activity because the statements about him in ORWITS “are demonstrably and factually false” and his lawsuit is not barred by the litigation privilege (Civ Code, § 47, subd. (b)) because the County's creation and maintenance of ORWITS constitute noncommunicative conduct. He also argues the trial court abused its discretion when it denied his ex parte motion to conduct discovery, filed several weeks after briefing on the County's motion had been completed. We affirm.
The Los Angeles County District Attorney's Office created and maintains a discovery compliance system comprised of a Brady database, a repository of information that must be disclosed in criminal cases pursuant to Brady v. Maryland (1963) 373 U.S. 83 and Penal Code section 1054.1, subdivision (e), and ORWITS, which contains impeaching and potentially impeaching information about law enforcement officers and other frequent witnesses, including experts, in criminal cases.[2] The information in the two databases is shared only if a case has been filed. When a witness list is submitted for the generation of subpoenas, the system automatically checks the witness information in the Brady/ORWITS databases. If a match is found, the system advises the assigned prosecutor, who may view the data and disclose information about the witness as necessary for the preparation and trial of the case. As explained in a March 15, 2018 special directive from District Attorney Jackie Lacey, the discovery compliance system is intended to “improve the capacity for deputies to comply with constitutional and statutory discovery obligations, ensure defendants receive a fair trial, protect recurrent witnesses from unfair surprise, and preserve the integrity of convictions.”
The County advises peace officers when it enters information about them into the ORWITS database. An officer may submit documents to explain or refute the information, and any documents provided are included with the ORWITS entry and are accessible to the prosecutors using the system.[3]
Fierro filed an unverified complaint on August 23, 2019 for defamation, negligent and intentional infliction of emotional distress and interference with prospective economic advantage, naming as defendants the County, as well as the Los Angeles County District Attorney's Office, the Los Angeles County Public Defender's Office and the Los Angeles County Alternate Public Defender's Office, administrative divisions of the County. Fierro alleged he is a law enforcement officer in Los Angeles County and, on information and belief, ORWITS reveals to third parties that law enforcement officers are included in the database and discloses information about officers “that is unverified, false and defamatory.” Fierro further alleged law enforcement officers are added to the database without their knowledge or consent and “[j]ust being on the list creates an inference that the party on the list is dishonest or untruthful.”
In his first cause of action for defamation, Fierro alleged he had recently discovered he was included in the ORWITS database, which he refers to as a “list.” He additionally alleged the information attributed to him was defamatory and defamatory statements about him had been made by defendants to third parties “including other law enforcement persons and lawyers.” In his second and third causes of action, in addition to incorporating the prior allegations in the complaint, Fierro alleged the defendants and their agents had negligently (second cause of action for negligent infliction of emotional distress) or intentionally (third cause of action for intentional infliction of emotional distress) spread false and defamatory rumors about him. In his fourth cause of action for interference with prospective economic advantage, in addition to incorporating the prior allegations, Fierro alleged, again on information and belief, that the defendants, “through surreptitious contacts and correspondence with employers have made false and defamatory statements and among other things said [Fierro] is dishonest.” As a result of this conduct, Fierro alleged he is in jeopardy of having his contractual relations and future relationships with potential employers terminated.
The County demurred to Fierro's complaint, moved to strike portions of the complaint, including the prayer for punitive damages and attorney fees, and filed a special motion to strike the entire complaint pursuant to section 425.16. The hearing on the special motion to strike was originally scheduled for January 6, 2020 but, because of recusals, was continued several times, eventually to March 12, 2020.
In its special motion to strike the County described ORWITS (through a declaration of the deputy district attorney in charge of the discovery compliance unit of the district attorney's office and attached material as to which the County requested judicial notice) and explained each of Fierro's four causes of action was based on allegedly defamatory speech disseminated as a result of its use of ORWITS. The County argued its disclosures of information from the ORWITS database were protected activity within the meaning of section 425.16, subdivision (e)(2), as communications made in connection with anticipated litigation, and its input of information regarding Fierro and other officers constituted protected activity within the meaning of section 425.16, subdivision (e)(4), as conduct in furtherance of the exercise of free speech in connection with a public issue or an issue of public interest (criminal prosecutions).
As to the possible merits of the lawsuit, the County argued its creation and use of ORWITS were absolutely protected by the litigation privilege in Civil Code section 47, subdivision (b). Its activity, the County asserted, was also conditionally privileged under Civil Code section 47, subdivision (c), the common interest privilege; and Fierro could not prove malice. In addition, the County identified several Government Code immunity provisions it argued applied in the case and defeated Fierro's causes of action as a matter of law. In any event, the County contended, the information in ORWITS regarding Fierro was true and, therefore, not actionable.
In his declaration in opposition to the special motion to strike, Fierro described himself as a senior detective and 27-year veteran of the El Monte Police Department. According to Fierro, he was included in ORWITS based on a false accusation that he had committed perjury and falsified evidence in connection with a 2012 criminal trial of an El Monte police sergeant, which ended in a mistrial and dismissal of charges when the jury could not reach a verdict.[4] In retaliation, the district attorney's office placed him in the ORWITS database and refused to remove his name despite the fact he was “completely exonerated” from any wrongful conduct following an internal affairs administrative review. Fierro attached a copy of the letter he received notifying him of his inclusion in the ORWITS database.[5]
In his declaration Fierro provided examples of cases in which he had participated as an investigating officer but was not called as a witness because of information concerning him in the ORWITS database. He also attributed to his inclusion in ORWITS his unsuccessful applications to become an investigator with the Los Angeles County Public Defender's Office and a Los Angeles County Sheriff's Department “deputy sheriff lateral.”
In his legal memorandum in opposition to the special motion to strike, Fierro conceded statements made to prosecutors preparing for trial generally are protected activity within the meaning of section 425.16, but argued the statements in ORWITS are not protected “because the statements themselves are demonstrably and factually false and cannot be challenged in any manner, thereby permanently stigmatizing Fierro.” Fierro contended being on a government blacklist containing false information without the ability to challenge the false information constituted stigmatization and reputational injury for which relief must be available. In support Fierro cited Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), which held, when it is conceded or established as a matter of law by uncontested evidence that a person acted illegally when exercising his or her First Amendment rights, that activity is...
To continue reading
Request your trial