Cedillos v. Madigan

Filed 6/22/07 Cedillos v. Madigan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Corey S. Cramin, Judge. Affirmed.

Stroock & Stroock & Lavan and Deborah Drooz for Plaintiff and Appellant.

Worthe Hanson & Worthe and John R. Hanson for Defendants and Respondents.

* * *

In 1999, plaintiff Ronald Cedillos was made a reserve deputy sheriff. It is true that he never actually functioned as a deputy sheriff and that his name was removed from a government database of peace officers in 2002. However, there is nothing else to indicate that he was not a reserve deputy sheriff in Spring 2005, and in fact Penal Code section 832.6, subdivision (a) shows that a person can be reserve deputy sheriff without being a peace officer.

Defendant Michael Madigan operates a website, Twistedbadge.com, devoted to exposure of law enforcement malfeasance. The websites banner is Our Mission Is To Promote Public Awareness Of The Need To Be Vigilant In Matters Involving Law Enforcement Malfeasance.[1] In the ninth installment of a series about corruption posted April 17, 2005, the focus was on Cedillos. In that installment Madigan posted a story to the effect that Cedillos had keyed the car of criminal defense attorney Joe Cavallo after an argument in a restaurant bar that ensued when Cavallo approached Cedillos female dinner companion. In the next installment, posted April 24, 2005, Madigan also revealed that Cedillos had paid $23,000 for the damage to Cavallos new Bentley.[2]

A month later, on May 31, 2005, Madigan received a letter from Cedillos attorney demanding a retraction. After Madigan refused to retract the story, Cedillos brought this defamation action. Madigan responded with an anti-SLAPP suit motion to dismiss the case. The motion was granted. Cedillos brought this appeal in the wake of the ensuing defense judgment and attorney fee order.

We affirm. There is no question that Cedillos suit passes the first of the two prongs under which anti-SLAPP suits are analyzed. Madigan has been sued for protected activity (see Navellier v. Sletten (2002) 29 Cal.4th 82, 88) in making allegations of malfeasance by a law enforcement officer in a county with a population bigger than Vermonts. Orange County is not Mayberry. Those allegations readily qualify as a public issue.

There is also no question that the second (merits) prong (see Code Civ. Proc.,  425.16, subd. (b)(1) [probability that the plaintiff will prevail on the claim]) was met. Under Gomes v. Fried (1982) 136 Cal.App.3d 924, 933, even a patrolman or low-level police officer is a public official for purposes of the New York Times [v. Sullivan (1964) 376 U.S. 254] privilege. Cedillos attempts to distinguish the rule in Gomes on the theory that a patrolman or low-level police officers duties are peculiarly governmental in character and highly charged with public interest, and can have a great potential for social harm (to quote his brief, quoting from Gomes, supra, 136 Cal.App.3d at p. 933, itself quoting from Coursey v. Greater Niles Township Publishing Corp. (Ill. 1968) 239 N.E.2d 837, 841). He claims he was merely a businessman operating outside the public sphere.

The attempt to distinguish the rule in Gomes is, however, not persuasive under the facts of this case. The context of the keying allegation was the alleged criminal malfeasance (see generally Pen. Code,  594 [criminal vandalism]) of a reserve deputy sheriff who had received his reserve deputy job by virtue of making a campaign contribution to the local sheriff. The potential for abuse of police officer power and public social harm by such untrained individuals is actually greater than any writer of traffic tickets.

That leaves the question of whether, even given applicability of the New York Times standard for defamation actions, Cedillos still might prove malice. On this record we must conclude not.

Such constitutional malice, as the New York Times v. Sullivan standard is often called, is defined as knowledge that a defamatory statement was false, or was made with reckless disregard of whether it was false. (Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 250.)[3] Cedillos asserts that he has presented at least a prima facie case of constitutional malice in this case based on either Madigans purposeful avoidance of conflicting information about the keying story (cf. Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657) or fabrication of a quotation (cf. Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496). Specifically, he asserts that there was purposeful avoidance because there were five witnesses (including Cedillos himself and his female dinner companion) who Madigan did not interview. He also claims that a statement attributed to him, I know your car! was a plain fabrication, made up merely to give credibility and verisimilitude to the keying story.

To make a prima facie showing of constitutional malice, it must be such as would pass the clear and convincing standard of proof at trial. (See Readers Digest, supra, 37 Cal.3d at p. 252.) Malice is not shown by a failure to investigate alone (Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657,692). Rather, as shown by St. Amant v. Thompson (1968) 390 U.S. 727, 732-733, there must be some indicia of an awareness by the defendant of the probable falsity of the statement, or evidence of a doubtful mind.

No such awareness has been shown here. There has been no showing that Madigan harbored any doubts or even should have harbored any doubts. Madigans source for the story was a former deputy district attorney in Orange County who had confirmed the details with Joe Cavallo. Not asking Cedillos himself or his female companion hardly seems unreasonable because it would have yielded a predictable denial and might have been the flashpoint for a disagreeable personal exchange.

As for the quotation, I know your car, it is a slightly milder version of the statement attributed to Cedillos in a Newport Beach police report. In that report a witness (a friend of Cavallos) told the Newport Beach police officer who wrote up the report about the keying incident and said that he heard Suspect Cedillos tell Victim Cavallo, I know what you drive. Ill get your car. Thats so close as to confirm the story told to Madigan by the former deputy district attorney, and wholly fails to show malice given a clear and convincing standard. Indeed, the quote is in fact more substantively accurate than the one in Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1166 [convicted perpetrator of domestic violence where plaintiff had never been convicted of any crime] which was held insufficient as a matter of law because the plaintiff admitted she did hit the defendant. (See id. at p. 1170.) I know your car is closer to I know what you drive. Ill get your car than hit is to convict.

The clear and convincing requirement effectively put the burden on Cedillos to come up with affirmative evidence of malice. The most Cedillos has shown is the failure to interview Cedillos to get his side of the story. But that failure, as we have noted was reasonable under the circumstances, and therefore could hardly constitute clear and convincing evidence of malice. Since Cedillos did not carry his burden, we therefore need not dwell on any implications of the fact that Cedillos paid $23,000 to repair the car.

The judgment is affirmed. Respondent is to recover his costs on appeal.

SILLS, P.J.

WE CONCUR:

RYLAARSDAM, J.

BEDSWORTH, J.

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[1] Which is all caps in the original found in our record.

[2] Cedillos has admitted that he paid Cavallo some $23,000 to repair damage to Cavallos car, though, according to Cedillos, the payment was made in response to a threat from Cavallo to go on television and say that Cedillos relationship with his dinner companion, who was not his wife, was more than a friendship.

[3] We review for trial court prejudicial error. Cedillos is correct in asserting that the trial court should not have analyzed constitutional malice in terms of whether Cedillos was a suspect in the keying, but the flat-out statement that Cedillos did in fact key the car. Whether that mistake was prejudicial is another question.