Francis v. Schwarzenegger

Filed 4/23/07 Francis v. Schwarzenegger CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

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Plaintiff Louis Francis is a prison inmate who claims he was injured when Governor Arnold Schwarzenegger urged the electorate in the fall of 2004 to vote no on Proposition 66 because it will . . . Release 26,000 prisoners. The trial court found Francis failed to allege facts sufficient to state a cause of action against the Governor, and sustained Schwarzeneggers demurrer to the first amended complaint without leave to amend.

Francis contends on appeal that the court erred in sustaining the demurrer and erred in conducting oral argument after he waived his personal appearance at the hearing.

Neither contention has merit. We shall affirm the judgment.

I

STANDARD OF REVIEW

A demurrer challenges the sufficiency of the complaint by raising questions of law. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) When reviewing a judgment dismissing a complaint after the [sustaining] of a demurrer without leave to amend, courts must assume the truth of the complaints properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

When, as here, a court sustains a demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

II

ALLEGATIONS IN THE COMPLAINT

Francis is an inmate in state prison in Susanville, serving a 51-years-to-life sentence under Californias three strikes law for petty theft related offenses.

Proposition 66 was on the statewide ballot in November 2004. If passed, Proposition 66 would have required that a felony triggering additional punishment as a second or third strike be a violent or serious crime instead of any felony. It also would have deleted certain felonies from the qualifying serious felony list and would have required that multiple strike convictions from a single proceeding be brought and tried separately before being used as separate strike convictions.^[1]

Francis alleges that on or about August 9, 2004, Sacramento County Superior Court Judge Raymond M. Cadei issued an order in Klass v. Shelley, Sacramento Superior Court case No. 04CS01020 altering certain language used to characterize the probable effect of Proposition 66 in the argument against its passage in the official ballot pamphlet. Specifically, Francis alleges that Judge Cadei changed language in the argument so it read: First, [U]nder Prop. 66 he would be eligible to apply for release; second, (2) If it passes, his son will be released early, so COULD some 26,000 other convicted criminal[s] - which is why the Governor opposes it; and third, Prop. 66 is opposed by Governor Schwarzenegger. . . . [It] threatens public safety by creating a legal loophole that COULD release an estimated 26,000 convicted felons including rapist[s], child molesters and murder[er]s.

In or about October and November 2004, Governor Schwarzenegger appeared in television advertisements against Proposition 66 and used the word will in certain contexts, such as when he urged the electorate to vote No on Prop. 66, because it will . . . Release 26,000 prisoners. . . . Keep those rapist[s], child molesters and murder[er]s off the streets, out of your community and behind bars. . . . (Italics added.)

Proposition 66 did not pass. Francis attributes its failure to Schwarzeneggers having used the word will in political advertisements to frighten and mislead the electorate into voting against it.

The first cause action of the operative (first amended) complaint purports to state a claim for Schwarzeneggers intentional breach of a fiduciary duty to Francis under Article V 1 of the California Constitution and Elections Code 18501 to disseminate true and accurate information to the voting public who was to vote on an Initiative that directly [a]ffected Franciss liberty, thereby prevent[ing] [Francis] from applying for early release from prison. The fourth cause of action alleges these facts justify liability on a theory of intentional tort, and the fifth cause of action alleges that these facts support a claim for general negligence.

The second cause of action purports to state a claim for general negligence and alleges that Schwarzenegger, while in privity with the Department of Corrections and Rehabilitation recklessly disregard[ed] the provisions of Penal Code section 2650, and suggested that Francis was falsely and closely associated with convicted child molesters, thereby causing him serious mental and emotional distress.

The third cause of action likewise purports to state a claim for general negligence, on the theories that Schwarzenegger denied an application for clemency brought by Francis after his government tort claim had been denied -- thereby demonstrating bias against Francis -- when he should instead have directed Franciss application to the Lieutenant Governor for determination.

All told, Francis sought damages of $1.5 million, a declaration that Schwarzenegger owes him a fiduciary duty, and an injunction ordering Schwarzenegger to call a special election to remedy his Malfeasance.

Schwarzenegger demurred to the complaint. In response, Francis asked the court to take judicial notice of the judgment entered by Judge Cadei in Klass v. Shelley, Sacramento Superior Court case No. 04CS01020. Thereafter, the court sustained Schwarzeneggers demurrer without leave to amend.

III

DISCUSSION

A

The Demurrer Was Properly Sustained

Francis sues Schwarzenegger both Individually and in his Official Capacities. In either capacity, however, Schwarzenegger cannot be civilly liable to Francis, because: (1) Schwarzeneggers statements in commercials opposing Proposition 66 are political speech protected by the First Amendment; and/or (2) he has immunity from liability for his discretionary acts as an executive officer of the state.

1. Schwarzeneggers Opposition To Proposition 66 Is

Constitutionally Protected

At the heart of Franciss complaint are the allegations Schwarzenegger mischaracterized Proposition 66 and the probable effect of its passage on currently incarcerated inmates. Virtually all of Franciss claims rest on his claim he was injured by Schwarzeneggers allegedly false or misleading public statements made in advertisements in anticipation of the November 2004 election. But, as we shall explain, those statements constitute constitutionally protected political speech and do not give rise to civil liability for damages.

It is well settled that the First Amendment to the federal Constitution, together with its state law counterpart, create a privilege from civil liability for actions constituting the exercise of free speech about political matters. The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479; see also Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 273-274.) This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, [citation]. (Buckley v. Valeo (1976) 424 U.S. 1, 14 [46 L.Ed.2d 659, 685].)

Accordingly, our courts have held uniformly that such speech is in furtherance of the constitutional right of free speech and -- absent exceptions not applicable here -- cannot give rise to claims for damages. (See, e.g., Rosenaur v. Scherer, supra, 88 Cal.App.4th at p. 274; see also Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950; Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

Even statements containing personal invective or exaggeration are protected when made in the course of a debate on political issues. [O]ur Constitution affords protection to statements made during the course of debate on political issues. [Citations.] In the words of Justice Hugo Black, . . . it is a prized American privilege to speak ones mind, although not always with perfect good taste, on all public institutions. [Citation.] (Beilenson v. Superior Court, supra, 44 Cal.App.4th at pp. 950-951, quoting Bridges v. California (1941) 314 U.S. 252, 270-271 [86 L.Ed. 192, 207].)

Against this considerable constitutional threshold, we consider Franciss contentions that Schwarzeneggers statements are actionable because they were not true and accurate information about Proposition 66 or because they suggested falsely that Francis was closely associated with convicted child molesters.

As to the first, Francis has not shown he can prove that Schwarzeneggers statements were false; he has (at most) alleged that there existed differing views on how many currently incarcerated felons would be affected by the law if enacted. True, Schwarzeneggers statement conflicts with those made by proponents of the bill: Schwarzenegger said that Proposition 66 will Release 26,000 prisoners and would affect the publics interest in [k]eep[ing] those rapists[s], child molesters and murder[er]s off the streets, out of your community and behind bars while proponents said that PROPOSITION 66 WONT RELEASE A SINGLE striker, let alone thousands, serving time for . . . rape, murder, or child molestation. But the latter statement by political opponents does not render the former ones probably false. (Cf. Seelig v. Infinity BroadcastingCorp. (2002) 97 Cal.App.4th 798, 809; Beilenson v. Superior Court, supra, 44 Cal.App.4th at pp. 950-951.)

Most significantly, Francis has not shown that Governor Schwarzeneggers statements falsely suggested Francis is closely associated with convicted child molesters. Schwarzeneggers statements in the political advertisements neither refer to Francis nor can they reasonably [be]

interpreted as stating actual facts about an individual. (Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at p. 809.) To survive pleading challenges, a person who claims damages from an alleged injurious falsehood must as a threshold matter show the statement at issue either expressly mentions him or refers to him by reasonable implication. (Cf. Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042, 1044-1046.) Francis has not shown that the phrases 26,000 prisonersrapists, child molesters and murder[er]s, can reasonably be interpreted as referring to him.

Finally, because Francis did not explain here or in the trial court how his complaint could be amended to overcome these legal obstacles, the court erred in sustaining the demurrer without leave to amend.

2. Schwarzenegger Enjoys Executive Immunity For Alleged

Wrongful Denial Of Franciss Clemency Petition

The only one of Franciss claims that does not arise from Schwarzeneggers public opposition to Proposition 66 is the third cause of action, which purports to state a claim for general negligence, on the theories that Schwarzenegger denied an application for clemency brought by Francis after his government tort claim had been denied -- thereby demonstrating bias against Francis -- when he should instead have directed Franciss application to the Lieutenant Governor for determination.

The decision to deny an application for clemency, like the decision to refrain from directing Franciss application to the

Lieutenant Governor for determination, are exercises of Schwarzeneggers discretion as Governor. (People v. Ansell (2001) 25 Cal.4th 868, 891.)

The common law of California has long provided that a governmental official has personal immunity from lawsuits challenging his or her discretionary acts within the scope of authority. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 979.) The rule of nonliability for discretionary acts has since been codified in the Government Code in section 820.2 and extends to all government employees. As a result, Francis cannot recover damages from Schwarzenegger for the alleged wrongful denial of his clemency petition.

Nor can Francis compel Schwarzenegger to exercise the discretion of his office by granting Francis clemency. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.)

B

Franciss Waiver Of Oral Argument Was Unqualified

While Schwarzeneggers demurrer was pending, Francis filed a NOTICE OF WAIVER OF PERSONAL APPEARANCE AT HEARING ON DEMURRER. REQUESTING DECISION WITHOUT ORAL ARGUMENT. CRC, Rule 327(c), in which he inform[ed] the court and defendant that he respectfully waives personal appearance at the Hearing on [Schwarzenegger]s demurrer because (among other reasons) it

appears any hearing would last only 10 minutes; a demurrer does not require evidence; Franciss opposition will make clear why the demurrer lacks merit; and the procedures required for the personal appearance of Francis, an incarcerated prisoner, seems quite unnecessary in light of the fact that the defendants have only filed a Demurrer. Accordingly, Francis asked the court to issue an order reflecting [that] personal appearance is not required.

The order sustaining Schwarzeneggers demurrer states that Francis waived personal and telephonic appearance through notice filed with the Court but that Schwarzeneggers counsel appeared telephonically at the hearing.

On appeal, Francis contends the court abused its discretion by holding oral argument in his absence because his waiver of personal appearance at the hearing was CONDITIONED Upon the Judge, after receiving all pleadings relevant to the Demurrer, deem[ing] the matter submitted on the papers and there being no oral argument at all.

That is not what Franciss waiver says. It nowhere indicates he intends his request to be conditional on the courts also restricting the moving party, Schwarzenegger, from requesting or appearing at oral argument. To the contrary, his waiver indicates a calculated decision by Francis that his personal appearance to defend against a demurrer was quite unnecessary because the demurrer could be adequately deflected by his written opposition.

There was no error.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

RAYE , J.

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^[1] See Ballot Pamphlet, Primary Election (Nov. 2, 2004), Analysis by the Legislative Analyst, Arguments and Rebuttals at pages 44 through 47, and text of Proposition 66, at pages 110 through 118.