MORROW v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Filed 4/20/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Probability of Prevailing on the Merits

Story continued from Part I .

Having found the invasion of privacy and defamation causes of action arose from protected free speech activity, we proceed to the question of whether Morrow has demonstrated a probability of prevailing on those claims based on admissible evidence. In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ([Code Civ. Proc.,]  425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th [at p.] 821.) (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317-318; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th at 728, 741, fn. 10.)

To prevail on a claim for invasion of privacy by means of the publication of private facts, Morrow must prove a (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to a reasonable person, and (4) which is not of legitimate public concern. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.) As our Supreme Court explains, lack of newsworthiness is an element of the private facts tort, making newsworthiness a complete bar to common law liability. (Id. at p. 215.) The assessment of that question involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution. (Ibid.) As long as the publication was of legitimate public concern, there can be no tort liability under this theory where the facts disclosed bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevanceeven if the subject of disclosure was a private person involuntarily caught up in events of public interest. (Ibid.)

Our protected activity analysis demonstrated both the legitimate newsworthiness of the challenged publication and the lack of any legally protected privacy interest in the information disclosed to the press. It follows that Morrow cannot prevail on his privacy invasion claim. The trial court was correct in finding that to the extent the challenged disclosures included any private fact, the disclosure was logically relevant to the newsworthy subject of the violence at Jefferson and the school districts response to it. Even if Morrows retirement plans were considered to be a purely private concern, the disclosure was highly relevant to the districts response and not particularly intrusive.

Morrows defamation claim fares no better because the challenged statements were protected by the executive officer privilege of Civil Code section 47, subdivision (a). Enacted in 1872, the statute states simply: A privileged publication or broadcast is one made: (a) In the proper discharge of an official duty. The annotation to the section made by the Code Commission in 1872 indicated that it was intended as a codification of the general principles developed by the courts. (Saroyan v. Burkett (1962) 57 Cal.2d 706, 710 [(Saroyan)].) At the time of its enactment, the legal authorities cited by the Code Commission recognized an absolute privilege only in judicial and legislative proceedings. Twenty years later, the United States Supreme Court applied the privilege to the executive branch of government, holding a communication of the Postmaster General to be absolutely privileged. (Spalding v. Vilas (1896) 161 U.S. 483.) (Copp v. Paxton (1996) 45 Cal.App.4th 829, 839-840 (Copp).)

The privileged nature of Romers statements cannot be seriously doubted in light of the leading decisions of the California and United States Supreme Courts. In Saroyan, our Supreme Court followed the precedent of its federal counterpart to bar a defamation suit against the state superintendent of banks by an employee who alleged he was defamed by the superintendents statements to the press relating to his conduct as attorney for the state banking department. The Saroyan court extended the executive privilege to state officials corresponding in rank to federal cabinet members. Defendant [superintendent of banks] was such an official. . . . [He] was acting in the exercise of an executive function when he defended the policy of his department, and his statements were related to the defense of that policy. Accordingly defendant was protected by an absolute privilege. (Saroyan, supra, 57 Cal.2d at pp. 710-711; see also Kilgore v. Younger (1982) 30 Cal.3d 770, 779 [extending privilege to state Attorney General sued for defamation after releasing a report on organized crime naming the plaintiff as a person suspected of criminal activity]; Copp, supra, 45 Cal.App.4th at p. 840 [extending privilege to county emergency services coordinator sued for defamation]; Royer v. Steinburg (1979) 90 Cal.App.3d 490, 500-501 [extending privilege to school board trustees who passed an allegedly defamatory motion charging the plaintiff, a former superintendent of schools, with improper election activities].)

While some appellate decisions have refused to apply the privilege to officials below cabinet rank (e.g., Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323 [denying immunity to school superintendent and school board secretary]), we agree with our colleagues in the First District that the weight of authority follows federal precedents in extending the privilege to lower ranking officials. (Copp, supra, 45 Cal.App.4th at p. 840.) Most significantly, in the federal Supreme Courts leading decision, Barr v. Matteo (1959) 360 U.S. 564 (Opn. of Harlan, J.) (Barr),^[1]the absolute privilege was extended to the Acting Director of the Office of Rent Stabilizationan office well below cabinet rank. (Copp, supra, 45 Cal.App.4th at p. 840; see Barr, supra, 360 U.S. at p. 572, fn. omitted [We do not think that the principle announced in [Spalding v.] Vilas[, supra, 161 U.S. 483] can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts.].)

As the Supreme Court explained in Barr: It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted . . . which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits. (Barr, supra, 360 U.S. at pp. 573-574.) Indeed, the published statement found privileged in Barr cannot be meaningfully distinguished from that made by Romer. In that case, there was a widely reported scandal developing in a federal administrative agency concerning its employees accumulated leave payments. The defendant, the acting director of the agency, suspended two of his subordinates and released a press release implying in a press release that they were responsible for the misdeeds. (Royer v. Steinburg, supra, 90 Cal.App.3d at p. 501, citing Barr, supra, 360 U.S. at p. 567.) In finding the defendants statements absolutely privileged, the Supreme Court stated: We think that under these circumstances a publicly expressed statement of the position of the agency head, announcing personnel action which he planned to take in reference to the charges so widely disseminated to the public, was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. (Barr, supra, 360 U.S. at pp. 574-575.) Romer, in his capacity as the chief executive officer of the governing board of the district (Educ. Code, 35035, subd. (a)), announced the impending transfer of a district employee as part of the school districts response to a notorious crisis in a public high school.

Morrow argues the executive privilege cannot apply to Romer because he was not exercising a policymaking function when he made the challenged statements. Consistent with the decisions in Saroyan and Barr, however, the executive privilege broadly encompass[es] all discretionary acts essential to the proper exercise of an executive functiondecision. (Copp, supra, 45 Cal.App.4th at p. 844.) As such, we find Morrows reliance on Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136 (Neary) and Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 (Sanborn) misplaced. In Neary, a University of California vice-chancellor released a veterinarians report investigating dead cattle at the plaintiffs ranch. In Sanborn, a county clerk told the press that he had been conned by the plaintiff to release funds improperly. In those cases, the privilege was determined not to apply to the defendants acts because they were not made in furtherance of any policymaking function. Essentially, the release of the veterinarians report in Neary was ministerial and divorced from any policymaking role the vice chancellor might have had. Likewise, the county clerk in Sanborn had no policymaking function relating to the release of funds. (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 616.) Here, in contrast, Romers statements to the press cannot be deemed ministerial or unrelated to a legitimate policy-making function. Rather, as superintendent he was publicly explaining the districts response to a matter of widespread concern, which was one of his official duties.

Finally, evidence that Romer later regretted his decision to replace Morrow, believing it to have been based on false evidence, in no way precludes application of the privilege. In Barr, the Supreme Court relied heavily on Judge Learned Hands explication of the rationale for the executive privilege, as expressed in Gregoire v. Biddle (2d Cir. 1949) 177 F.2d 579: Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative.In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . .^[2] (Barr, supra, 360 U.S. at pp. 571-572, quoting Gregoire v. Biddle, supra, 177 F.2d at p. 581.)

Because Romers statements were protected by the executive officer privilege of Civil Code section 47, subdivision (a), we find Morrow failed to discharge his burden of demonstrating a probability of prevailing on his defamation claim. Given that finding, we need not address in great detail the question of whether the challenged statements were defamatory. As a matter of constitutional law, to be actionable, a defamatory statement must contain a false statement of fact, rather than opinion. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. [Citation.] A statement of opinion, however, may still be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. [Citations.] The dispositive question for the court is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. . . . [Citations.] [] The issue whether a communication was a statement of fact or opinion is a question of law to be decided by the court. [Citation.] (Copp, supra, 45 Cal.App.4th at p. 837.)

As an alternative basis for our decision, we find Romers reported statements that (1) Jefferson needed stronger leadership, (2) Morrows retirement plans that did not fit with the districts needs, and (3) Morrows handling of the recent violence had accelerated a decision to replace him were all protected opinions. (See, e.g., Botos v. Los Angeles County Bar Assn. (1984) 151 Cal.App.3d 1083, 1089 [county bars finding attorney was not qualified to sit as a judge was non-libelous as a matter of law: As a collective judgment of his qualifications, it may have ranged from being well founded to utterly wrong, but it remained a protected opinion]; Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725 [finding no cause of action for statement in a high school newspaper that the plaintiff was the worst teacher at FHS because it was an expression of subjective judgment].)

Evidentiary Claims

Morrow contends the trial court erroneously excluded various statements from the two declarations he submitted in opposition to defendants anti-SLAPP motion. As stated above, a plaintiff opposing a [Code of Civil Procedure] section 425.16 motion must support its claims with admissible evidence. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., supra, 106 Cal.App.4th at p. 1237.) We review the trial courts evidentiary rulings for an abuse of discretion (e.g., Walker v. Countrywide Home Loans, Inc.  (2002) 98 Cal.App.4th 1158, 1169) and find none.

The trial court ruled four of OSullivans statements were inadmissiblethe witnesss assertions that: (1) the CBA proscribes Romer and LaGrosa from making statements to the press about personnel matters such as job performance and retirement plans; (2) District officials have recognized in discussions that personnel matters may only be discussed in a closed session of the school board, subject to the provisions of the Brown Act; (3) Romers statements to the press regarding Morrow were false and unfortunate; and (4) Romer knew that making those statements was proscribed by the California Constitution, the Brown Act, and the CBA.

The trial courts rulings were entirely proper. The first statement amounts to an improper lay opinion as to the meaning and legal effect of a contract. Our Supreme Court long ago established [t]he interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citations.] . . . It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. [Citation.] (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1111 (Powers).) The second statement is also an improper lay opinion (as well as hearsay and irrelevant) because it amounts to the opinions of unnamed officials as to a legal conclusion. The manner in which the law should apply to particular facts is a legal question and is not subject to expert, much less lay, opinion. (See, e.g., Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179.) The third statement also amounts to an improper lay opinion as well as a conclusion without proper foundation. The fourth statement suffers from the same vice, but compounds it by purporting to relate another persons state of mind without any showing of personal knowledge thereof. (Evid. Code, 702.)

Nor was there any abuse of discretion in the trial courts evidentiary rulings on Morrows declaration. The trial court struck the following assertions by Morrow as to Romer and/or LaGrosa: (1) Romers motive for making the challenged statements to the press was to deflect criticism away from defendants bad management decisions; (2) Romer was responsible for knowing the privacy rights granted to the school districts administrative employees under the California Constitution, the Brown Act, the Public Records Act, Government Code section 6254, and the CBA; (3) Romer, by virtue of his being a state governor and a licensed attorney, knew the personal privacy concerns of the districts employees; (4) the CBA does not authorize LAUSD . . . to comment on personnel matters; (5) Romer and LaGrosas lack of interest and supervision concerning Jefferson demonstrated that they intended to set-up the high school to fail; (6) Romer and LaGrosa knew any discussion concerning Morrows performance required a closed session performance evaluation under Government Code section 54957 and article VII of the CBA; (7) LaGrosas motivation for replacing Morrow was to bring in younger Hispanics; (8) in the context of Romers apology, both Morrow and the superintendent understood that the source of the false and misleading information was LaGrosa.

Statements 2, 3, 4, and 6 were improper lay opinions as to legal conclusions. (See Summers v. A. L. Gilbert Co., supra, 69 Cal.App.4th at p. 1179.) The same is true of Morrows statement that he understood that any discussions regarding possible retirement or personnel matters were highly confidential. Statements 1 through 3 and 5 through 8 amounted to opinions as to the mental impressions of other persons without personal knowledge thereof. (See Evid. Code, 702.) The same is true of various other of Morrows stricken assertionsthat prior to the campus disturbances, neither Romer nor LaGrosa visited Jefferson, that neither one had ever observed his performance or received reports that Morrows performance was less than stellar, and that Romer had not spoken to Morrows administrative staff, Jefferson teachers, parents, students, or security personnel. Such testimony is obviously beyond the witnesss personal knowledge and is rife with speculation.

Attorney Fees

The successful defendant on an anti-SLAPP motion is entitled to recover its attorney fees and costs as a matter of right. (Code Civ. Proc., 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees].) Nevertheless, as we explained in Endres v. Moran (2006) 135 Cal.App.4th 952 (Endres), when a successful anti-SLAPP motion accomplishes nothing of practical consequencethat is, where the results of the motion were minimal and insignificant, a trial court is justified in finding the defendants should not recover fees. (Id. at p. 955; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (Mann) [a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court].)

Morrow cannot take advantage of the narrow exception recognized in Endres and Mann because he does not offer any legal or factual basis for finding that the practical effect of defendants victory was nugatory. Dismissal of the causes of action for defamation and invasion of privacy cannot be considered trivial victories for defendants in the context of this case.

Defendants ask that we award attorney fees on appeal. The right to attorney fees extends to attorney fees on appeal as well. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) Defendants, having prevailed as to the invasion of privacy and defamation claims, are entitled to their attorney fees on this appeal. However, the amount of such fees is to be determined by the trial court upon motion by defendants. (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at pp. 659-660.)

DISPOSITION

The trial courts granting defendants anti-SLAPP motion is affirmed. Defendants are awarded their costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] Justice Harlan authored the lead opinion in Barr, which was joined by three justices. Justice Black concurred in the result reached by the lead opinion, but on more expansive first amendment grounds.

^[2] Of course, we imply no finding as to the propriety of Romers actions or his judgment regarding Morrows performance or his evaluation of the school districts needs. Upon the evidence properly before the trial court, the most Morrow showed was that in retrospect Romer believed he had made an honest mistake.