Walker v. Kiousis
| Decision Date | 28 November 2001 |
| Docket Number | No. E029822.,E029822. |
| Citation | 114 Cal.Rptr.2d 69,93 Cal.App.4th 1432 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Donovan WALKER, Plaintiff and Appellant, v. Bill John KIOUSIS, Defendant and Respondent. |
Daniel P. Tokaji and Mark D. Rosenbaum, Los Angeles, for ACLU Foundation of Southern California as Amicus Curiae on behalf of Defendant and Respondent.
Civil Code section 47 provides generally that statements made in the course of an official proceeding are absolutely privileged. Those statements therefore cannot serve as a basis for civil liability. Civil Code section 47.5, however, creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false complaint about the officer with the officer's employing agency.
As have two federal district courts, we conclude Civil Code section 47.5 impermissibly regulates speech based on the content of the speech and therefore violates the constitutional right of free speech. (Haddad v. Wall (C.D.Cal.2000) 107 F.Supp.2d 1230; Gritchen v. Collier (C.D.Cal.1999) 73 F.Supp.2d 1148, revd. on other grounds (9th Cir.2001) 254 F.3d 807.)
California Highway Patrol (CHP) Officers Donovan Walker and Philip Husband arrested Bill John Kiousis for suspected drunk driving on December 5, 1997. Kiousis pled guilty to a "wet reckless," i.e., reckless driving with consumption of alcohol, on April 29, 1998. (Veh.Code, §§ 23103, 23103.5.)
After pleading guilty, Kiousis filed a citizen complaint against Walker with the CHP. Kiousis alleged that during the arrest Walker had used profanity in speaking to him, had threatened him with physical violence, and had threatened him with three days in jail if he did not take a blood test. Kiousis demanded "appropriate action up to and including termination" of Walker.
The CHP determined there was no merit to Kiousis's allegations, based largely on a tape recording which Walker had made of the traffic stop and arrest.
Walker then sued Kiousis pursuant to Civil Code section 47.5 (section 47.5). That section, enacted in 1982, provides in full: Walker's complaint asserted claims for libel and intentional and negligent infliction of emotional distress.
Kiousis moved to strike the complaint pursuant to Code of Civil Procedure section 425.16 (section 425.16), also known as the "SLAPP" (Strategic Lawsuits Against Public Participation) statute. In part, Kiousis argued that section 47.5 is unconstitutional because it selectively targets speech critical of police officers and therefore is an impermissible content-based regulation.
The court granted the motion to strike on the ground that Walker had failed to show he sustained any actual damage from Kiousis's complaint. Therefore, Walker could not show a probability of prevailing in his lawsuit, as required to defeat a motion to strike under section 425.16. Walker appealed.
Section 425.16 applies to any cause of action arising from an "`act 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....'" (§ 425.16, subd. (e).) Such a claim "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." (Id., subd. (b)(1).) Section 425.16 "shall be construed broadly." (Id, subd. (a).)
An act in furtherance of a person's right of petition or free speech includes "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law ...." (§ 425.16, subd. (e).) It also includes "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law...." (Ibid.)
Walker acknowledged at the hearing on Kiousis's section 425.16 motion that Kiousis's complaint was made in connection with an official proceeding authorized by law. He was correct. Penal Code section 832.5, subdivision (a) provides: "Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies...." Walker therefore had to show a probability of prevailing in order to proceed with his suit.
To show a probability of prevailing, a plaintiff must make a prima facie showing of facts which would, if proved, support a judgment in his or her favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907, 84 Cal.Rptr.2d 303.) Whether the plaintiff has shown a probability of prevailing is reviewed independently on appeal. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App.4th 713, 721, 77 Cal.Rptr.2d 1, disapproved on another point in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10, 81 Cal.Rptr.2d 471, 969 P.2d 564; Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064, 82 Cal.Rptr.2d 10.) We affirm the judgment if it is correct on any legal ground, whether or not the trial court relied on that ground. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10; R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 154, 99 Cal. Rptr.2d 425.)
Walker clearly did not show a probability of prevailing on his claims for intentional and negligent infliction of emotional distress. Those claims are barred by Civil Code section 47 (section 47).
Section 47 provides that a publication made in any "official proceeding authorized by law" is privileged. (§ 47, subd. (b).) As we have already seen, an investigation of a citizen's complaint against a law enforcement officer is an official proceeding authorized by law. (See Pen.Code, § 832.5, subd. (a).) A communication to an official agency which is designed to prompt action is considered a part of an official proceeding for purposes of Civil Code section 47. (Long v. Pinto (1981) 126 Cal.App.3d 946, 948, 179 Cal. Rptr. 182; King v. Barges (1972) 28 Cal. App.3d 27, 34, 104 Cal.Rptr. 414.) Therefore, the privilege applied to Kiousis's complaint.
Where it applies, "the privilege of section 47 applies to bar all tort actions, except for malicious prosecution...." (Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502, 28 Cal.Rptr.2d 722; accord, Rubin v. Green (1993) 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044; Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216, 266 Cal. Rptr. 638, 786 P.2d 365.) Claims for intentional and negligent infliction of emotional distress, therefore, are barred. (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 45, 32 Cal.Rptr.2d 200, 876 P.2d 999; Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345, 361, 101 Cal. Rptr.2d 916.)
Section 47.5 creates an exception to the privilege provided by section 47, but that exception by its terms only purports to authorize "an action for defamation." On the other hand, the privilege afforded by section 47 has been given "an expansive reach." (Rubin v. Green, supra, 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044, fn. omitted; accord, Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 169, 90 Cal.Rptr.2d 162.) Accordingly, the exception created by section 47.5 should be construed narrowly, to permit only a claim for defamation and not other claims, even though they rest on the same underlying conduct. Walker's claims for intentional and negligent infliction of emotional distress therefore are barred by section 47.
Walker's remaining claim, for defamation, also would be barred by section 47 if it were not for section 47.5. Prior to the enactment of section 47.5 in 1982, it was established that a citizen complaint of police misconduct was absolutely privileged under section 47. (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 54-57, 138 Cal.Rptr. 540.) Thus, Walker's defamation claim can proceed only if section 47.5 is valid.
After the trial court decision in this case, a federal district court in California held that section 47.5 is unconstitutional on its face as violative of the First and Fourteenth Amendments. The court concluded that "[b]y treating citizen complaints against police officers differently from complaints against all other government officers, § 47.5 makes an impermissible content-based discrimination against a type of speech." (Gritchen v. Collier, supra, 73 F.Supp.2d 1148, 1153 (Gritchen).)
The United States Court of Appeals for the Ninth Circuit later reversed the decision in Gritchen. The court held that the police officer, Collier, was not acting...
To continue reading
Request your trial
-
Chaker v. Crogan
...material matter in the report which the officer knows to be false.11 See Cal.Penal Code § 118.1; see also Walker v. Kiousis, 93 Cal.App. 4th 1432, 1449 n. 2, 114 Cal.Rptr.2d 69 (2001). We are aware of no authority, nor do the parties direct us to any, holding that a knowingly false statemen......
-
Glendale Associates, Ltd. v. N.L.R.B.
...City of Fresno v. Press Communications, Inc., 31 Cal.App.4th 32, 39, 36 Cal.Rptr.2d 456 (1994), Walker v. Kiousis, 93 Cal.App.4th 1432, 1446, 114 Cal.Rptr.2d 69 (2001). Content-based regulations are presumptively unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 253......
-
Condit v. National Enquirer, Inc.
...and underproductive[,] ... would tend to injure Cepeda in his occupation [as] a notable baseball player"); Walker v. Kiousis, 93 Cal.App.4th 1432, 114 Cal.Rptr.2d 69 (2001) (report that plaintiff police officer used profanity and made threats during a traffic stop of a courteous citizen ten......
-
Hagberg v. California Federal Bank FSB
...to prompt action is considered a part of an official proceeding for purposes of Civil Code section 47." (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439-1440, 114 Cal.Rptr.2d 69; see also Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 514, 135 Cal.Rptr.2d 114.) Because it is understood......