Rubin v. City of Los Angeles

• Decision Date: 23 March 1987
• Citation: 235 Cal.Rptr. 516,190 Cal.App.3d 560
• Court: California Court of Appeals Court of Appeals
• Parties: Irving David RUBIN, et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents. B015319.

Page 516

235 Cal.Rptr. 516

190 Cal.App.3d 560

Irving David RUBIN, et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

B015319.

Court of Appeal, Second District, Division 7, California.

March 23, 1987.

Review Denied July 2, 1987.

ACLU Foundation of Southern California, Paul L. Hoffman, Joan W. Howarth, Patricia Erickson, Los Angeles, Hecht, Diamond & Greenfield, and Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants.

James K. Hahn, City Atty., Lewis N. Unger, Asst. City Atty., and Linda K. Lefkowitz, Deputy City Atty., for defendants and respondents.

THOMPSON, Acting Presiding Justice.

This case presents an issue of first impression concerning the power of the trial court to create a nonstatutory, local state secrets privilege that functions as a special defense to bar or abate an action under Code of Civil Procedure section 597. ¹

For the reasons that follow, we shall find that the trial court improperly dismissed the action under Code of Civil Procedure section 597 on the basis of defendants' first affirmative defense of a nonstatutory local state secrets privilege. We shall conclude that the court's other rulings based upon the erroneous upholding of defendants' first affirmative defense--namely, the denial of plaintiffs' motion to compel answers to interrogatories and the granting of defendants' motion for a protective order against further discovery--were also improper. Accordingly, we shall reverse the judgment and remand the case for the trial court to reconsider plaintiffs' motion to compel responses to interrogatories.

The plaintiffs are the Jewish Defense League, Inc., ² the Jewish Defense League (JDL), ³ and Irving David Rubin, an officer and West Coast Executive Director of the JDL.

The defendants are the City of Los Angeles (City), Daryl Gates in his official capacity as the City's Chief of Police, the City's Board of Police Commissioners (the Board), the Los Angeles Police Department's (LAPD) Anti-Terrorist Division (ATD), and Larry Winston, an alleged LAPD Officer.

The plaintiffs filed a complaint against the City and others for an injunction, declaratory relief, and general and punitive damages, alleging that the JDL had been unlawfully disrupted and that their constitutional rights of privacy, freedom of association and freedom of speech had been violated by the unlawful activities of an undercover police officer who had infiltrated the JDL.

The defendants filed an answer that, for the most part, refused to admit or deny the allegations of the complaint on the basis of the first affirmative defense, which raised the state secrets privilege ⁴ and the conditional official information privilege (Evid.Code, § 1040, subd. (b)(2)). ⁵ According to the first affirmative defense, the litigation must be foreclosed in its entirety because the City cannot admit or deny the allegations of the complaint, or accede to discovery, or proceed to trial without compromising national, state and local security interests. Defendants also refused to respond to interrogatories on the basis of the first affirmative defense and the provisions of the California Public Records Act (Gov.Code, §§ 6250 et seq.).

Defendants successfully moved for dismissal and a protective order foreclosing discovery on the basis of the first affirmative defense. The procedure utilized by defendants to obtain the judgment was unique. The trial court, at defendants' urging, combined the bifurcated trial procedure for special defenses (Code Civ.Proc., § 597), with the in camera hearing procedure (Evid.Code, § 915, subd. (b)) ⁶ for Evidence Code section 1040 privilege claims, to try defendants' first affirmative defense prior to a trial of plaintiffs' complaint.

The court rendered judgment for defendants on the basis of the first affirmative defense, stating: "The Court finds ... by the overwhelming weight of the evidence that the maintenance of this litigation is contrary to the public interest and because it would necessitate disclosure of clearly privileged information and significantly compromise not only local but National and International law enforcement, the Court concludes that the individual interests [in] pursuing damages and injunctive relief are insignificant to that of the public interest." ⁷ Plaintiffs appeal from the judgment.

I FACTUAL & PROCEDURAL BACKGROUND

Due to the unique procedural posture of this case, it is necessary to set forth its factual and procedural background in detail.

A. The Complaint

According to the complaint, Winston, in accordance with his duties as a member of the ATD, infiltrated the JDL under the fictitious identity of Joel Cohen. Cohen submitted a written membership application to the JDL on or about September 4, 1979. During the three and one-half years of his membership, Cohen became a close friend of Rubin's and played a major role in the circumcision ceremony of Rubin's son in 1981.

The complaint alleges that during Cohen's membership, he destroyed the reputation and effectiveness of the JDL, invaded its privacy and the privacy of Rubin, and violated the rights to freedom of speech and association, privacy and petition, protected by the First and Fourteenth Amendments to the United States Constitution, by doing the following: (1) publicly referring to a rabbi in racist terms for the purpose of creating the false impression that the JDL is a racist organization; (2) urging three JDL members to fire a .22-caliber rifle into an occupied residence and volunteering to drive the proposed participants to the residence (the act was never carried out); (3) unsuccessfully attempting to throw a brick through the window of a residence and then illegally breaking into the house to steal a power saw; (4) attempting to provoke a violent confrontation at a demonstration between members of the JDL and Black supporters of a political candidate by shouting racial epithets at the supporters; (5) stating to Rubin that the JDL should bomb a political candidate's headquarters; (6) urging JDL members to risk arrest by remaining on the premises at a protest rally after being ordered to leave; (7) repeatedly advocating and encouraging JDL members to attack certain offices; (8) initiating fights with opponents of the JDL; (9) using marijuana in the presence of JDL members; and (10) making racist remarks against members of racial minorities.

The complaint seeks an injunction and declaratory relief against the defendants on the ground that Winston's conduct violated the guidelines approved in the settlement of a lawsuit entitled Coalition Against Police Abuse, et al., v. Board of Police Commissioners of the City of Los Angeles (Superior Court No. C 243 458). The guidelines, entitled "Standards and Procedures for the Anti-Terrorist Division" (ATD Standards) state in part:

"(j) The following guidelines set forth restrictions on acceptable conduct by undercover officers.

"(1) While maintaining a fictitious identity, an undercover officer shall not in connection with said investigation ...

"...

"(c) Assume a position as one who leads, directs, manages, or officiates over the direction or goals of an organization;

"(d) Cause dissension within an organization or incite unlawful activity by any individual or organization ..."

The complaint also seeks general and punitive damages for violation of the California Constitution and Title 42, United States Code, Section 1983, and seeks attorney's fees.

B. The Answer

Defendants removed the case to federal court on the basis of the federal question raised by the Section 1983 claim. The case was remanded to state court after plaintiffs removed the section 1983 claim from the complaint.

Thereafter, the Los Angeles City Attorney filed an answer to the complaint on behalf of defendants City, Gates, the Board, and the ATD, ⁸ denying the allegations of misconduct, mainly on the basis of the first affirmative defense. Defendants also refused to confirm or deny the existence of Winston on the basis of the first affirmative defense. ⁹ The first affirmative defense provides: "The City strongly believes that legitimate intelligence gathering activities concerning local, national and international security would be jeopardized by maintenance of this litigation. Due to the nature of the subject matter, the City can neither admit nor deny many of the allegations set forth in the complaint, nor can it proffer an affirmative defense without compromising legitimate security interests. Similarly, to protect those interests, the City cannot accede to discovery and the production of evidence which will inevitably ensue if the matter proceeds to trial. The City, therefore, invokes the state secrets and official information privileges to foreclose this litigation in its entirety."

Defendants' answer also set forth additional language contained in the ATD Standards omitted from plaintiffs' recitation in the complaint: " 'The above mentioned restrictions shall not apply only where the refusal to engage in the requested proscribed activities shall immediately endanger the safety of the undercover officer or jeopardize the fictitious identity of the officer....' "

C. Plaintiffs' Interrogatories

Plaintiffs propounded interrogatories to defendants concerning whether Winston filed an answer in this case, whether Winston is represented by the City Attorney's Office, whether Winston is an LAPD Officer and a member or past member of its Public Disorder Intelligence Division and/or ATD, and whether he conducted a surveillance of plaintiffs. The interrogatories also inquired as to whether defendants contend that plaintiffs are a violent organization justifying infiltration and surveillance by the LAPD and, if so, all facts upon which this contention is based. It further asks whether defendants ever infiltrated the JDL in the past and, if so, requests the details and the names of the police officers.

Defendants objected to...