Judge David S. Cunningham, Case Number: 21STCV21284, Date: 2024-06-18 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV21284, Date: 2024-06-18 Tentative Ruling

Moving Party: Cross-Defendants Ben Camacho and Stop LAPD Spying Coalition (“Coalition”)

Opposing Party: Cross-Complainants City of Los Angeles, et al. (collectively “City”)

In October 2021, journalist Ben Camacho filed a Public Records Act request for a roster and photos of all police officers employed by the Los Angeles Police Department (“LAPD”). City refused to produce the roster and photos, so Camacho filed a lawsuit to compel production.

In September 2022, City settled the lawsuit. City agreed to “produc[e] pictures of all full-time, active duty” LAPD officers, “except for officers then working in an undercover capacity as of July 2022.” (City’s Anti-SLAPP Motion, p. 5.) During the production, though, City “inadvertently included” the names and pictures of some undercover officers. (Ibid.) Camacho then published the names and pictures online.

“Six months later, in March 2023,” Coalition “republished” the names and pictures “on a website it had created, watchthewatchers.net.” (Coaltion’s Anti-SLAPP Motion, p. 2.)

“In September 2023, over 800 anonymous individuals filed the present pair of damages actions.” (Id. at p. 3.) “[P]laintiffs claim they are current and retired LAPD officers whose identities had been secret until the City made them public.” (Ibid.)

In January 2024, City filed a cross-complaint against Camacho and Coalition for equitable indemnity and contribution.

On February 29, 2024, Camacho and Coalition moved under the anti-SLAPP statute to strike City’s cross-claims.

On March 22, 2024, the Court heard the motions but ended up continuing the hearing.

“The Legislature has authorized a special motion to strike that may be filed against ‘SLAPP’ suits (Strategic Lawsuits Against Public Participation).” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 7:500.) “The anti-SLAPP motion is a procedural remedy, designed to quickly identify and dispose of lawsuits brought to chill the valid exercise of a party's constitutional right of petition or free speech.” (Ibid.)

“Courts use a two-step process for determining whether an action or a claim is a SLAPP suit subject to a special motion to strike.” (Ibid.) “Plaintiff’s claim must (1) arise out of defendant’s protected speech or petitioning; and (2) lack even minimal merit.” (Ibid., emphasis in original.)

“Commonly, the court first determines whether plaintiff’s claims arise out of protected activity – i.e., whether the claim against defendant is predicated on defendant's exercise of a constitutional right of free speech or petition.” (Ibid.) “It is defendant’s burden to show the claim arises out of protected activity. If that burden is not met, the motion will be denied.” (Ibid.)

“If defendant meets the first prong burden, the burden shifts to plaintiff to show the probability that plaintiff will succeed on the merits of the claim.” (Ibid.) “In other words, even if the conduct for which defendant is being sued implicates defendant’s free speech or petition rights, the lawsuit may proceed if plaintiff makes a prima facie showing that the claim has merit.” (Ibid.)

* City’s cross-claims “arise[] from protected activity” (Camacho’s Anti-SLAPP Motion, p. 4; see also Coalition’s Anti-SLAPP Motion, p. 5 [asserting that the cross-claims arise from “either requesting public records . . . or publishing public records”]);

* Camacho’s conduct and Coalition’s conduct “address[ed] an issue of public interest in a public forum” (Camacho’s Anti-SLAPP Motion, p. 6, emphasis deleted; see also Coalition’s Anti-SLAPP Motion, pp. 5-7 [claiming the conduct “implicated a public issue” and “connected to conversation about the public issue”], emphasis deleted); and

* “City cannot show a probability of success” (Camacho’s Anti-SLAPP Motion, p. 8, emphasis deleted; see also Coalition’s Anti-SLAPP Motion, pp. 7-15 [claiming the contribution cross-claim is unripe and the cross-claim for equitable indemnity fails because Plaintiffs’ underlying causes of action are “[un]likely to succeed against [] Coalition” since (1) the First Amendment “bars any liability[,]” (2) Plaintiffs cannot satisfy the elements of their claims, (3) “Coalition does not know who the over 800” Plaintiffs “are[,]” and (4) Plaintiffs’ claims “are meritless against [] City”], emphasis deleted.)

* it “violates” the Court’s stay order (Opposition, p. 3, emphasis deleted);

* Camacho and Coalition “cannot file an anti-SLAPP motion based on the act of filing a cross-complaint iself” (ibid.; see also id. at p. 4); and

* the cross-claims do not arise out of protected conduct (see id. at p. 4 [asserting that requesting and publishing photos of undercover cops “are not ‘protected activities’”]).

Alternatively, City contends Plaintiffs’ underlying claims should be dismissed if Coalition’s motion is granted because the cross-claims constitute derivative claims and “are . . . based on the adequacy of” Plaintiffs’ claims. (Id. at p. 4.)

* “[d]efeating indemnification or contribution claims does not extinguish the liability of the party seeking indemnification” (id. at p. 5, emphasis deleted);

* the anti-SLAPP statute applies to City’s cross-claims (see id. at pp. 6-7); and

* putting Camacho’s and Coalition’s motions on hold until Plaintiffs’ underlying claims are resolved via summary judgment or trial would be improper (see id. at pp. 7-9).

The first two issues – whether Camacho and Coalition filed their motions in violation of the stay order and whether City’s opposition should be stricken for lack of service – have been resolved. The Court addressed these issues in the March 22^nd ruling. (See 3/22/24 Ruling Re: Anti-SLAPP Motions to Strike, pp. 3-5.)

The third issue – whether Camacho and Coalition are prohibited from “fil[ing] an anti-SLAPP motion based on the act of filing a cross-complaint” (Opposition, p. 3) – weighs in Camacho’s and Coalition’s favor. Their motions target the substance of City’s cross-claims, not the fact that City filed a pleading. Anti-SLAPP motions can be used for this purpose. (See Joint Reply, p. 6.)

The next issue is whether City’s causes of action arise out of Camacho’s and Coalition’s “protected speech or petitioning[.]” (Edmon & Karnow, supra, at ¶ 7:500.) City’s cross-complaint contains two causes of action – equitable indemnity and contribution. The premise of the causes of action is that Camacho and Coalition are partly or totally responsible for Plaintiffs’ alleged injuries because they are the ones who published the names and pictures. (See, e.g., Cross-Complaint, ¶¶ 15, 21-22, 24-25.) As noted above, City claims requesting and publishing names and photos of undercover officers “are not ‘protected activities’.” (Opposition, p. 4.)

The Court disagrees. Camacho is a journalist. He requested the names and pictures pursuant to the Public Records Act. When City refused to produce them, he filed a lawsuit to compel compliance with the statute. Then the case settled, and he published the names and photos that City produced to him through the settlement. Then Coalition republished them on its website, the same names and photos that were already available to the public due to Camacho’s publication. All of these acts involved protected speech and petitioning, especially given the broad right of the press to publish confidential matters, even police personnel files, when they relate to issues of public interest – e.g., police accountability. (See, e.g., Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015) 239 Cal.App.4^th 808, 815-821; see also Camacho’s Anti-SLAPP Motion, pp. 4-8 [discussing cases]; Coalition’s Anti-SLAPP Motion, pp. 4-7 [similar].)

City’s suggestion – that Camacho breached the settlement by publishing inadvertently produced names and pictures (see Opposition, p. 4 [stating that the settlement parties “agreed to exclude” undercover officers “from the settlement”]) – does not change the result. “Speech or petitioning activity that is ‘illegal as a matter of law’ is not constitutionally protected and falls outside the protection of the anti-SLAPP statute.” (Burke, Anti-SLAPP Litigation (The Rutter Group October 2023 Update) ¶ 6:46.) “‘Illegal’ means criminal behavior[.]” (Id. at ¶ 6:48, emphasis deleted.) “The mere showing of an alleged statutory or common-law violation” is not enough. (Ibid.; see also, e.g., Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4^th 793.) City fails to show that the purported breach constitutes a crime or that another exception applies. (See Opposition, pp. 3-4.)[1]

The final issue is whether City shows a probability of success. (See Edmon & Karnow, supra, at ¶ 7:500.) City bears the burden of proof (see ibid.), yet it did not submit evidence, and it fails to discuss the merits. (See Opposition, pp. 2-5.) Instead, City contends:

* the Court should not decide Camacho’s and Coalition’s motions until City’s anti-SLAPP motion is resolved (see Opposition, p. 4); or,

* if “the Court is inclined to grant” Camacho’s and Coalition’s motions, Plaintiffs’ claims against City must also be dismissed now because the cross-claims are derivate (id. at p. 3; see also id. at pp. 4-5).

Both points fail. The Court determined at a prior status conference that it will hear Camacho’s and Coalition’s motions first. Moreover, “[w]hether a defendant should be indemnified by a third party does not dictate whether the defendant is liable to the plaintiffs.” (Joint Reply, p. 5.) City’s cases do not hold otherwise. (See Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4^th 1151, 1155 [granting summary judgment, finding that the power company’s statutory immunity from direct liability for the minor’s injury precluded the property owner’s indemnity cross-claim against the power company]; see also Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4^th 1109, 1115 [reversing judgment on the pleadings and summary judgment, finding that “public policy does not preclude a realtor from seeking equitable indemnity against a home inspection company in an appropriate case”].)[2]

Also, as explained in the tentative ruling on City’s motion to compel anti-SLAPP discovery,

[t]he Court agrees [with City] that the First Amendment is not absolute, but the alleged threats [] do not appear to change the result. City highlights a series of purported Twitter (now X) postings by a person named Steven William Sutcliffe. [Citation.] Twitter is a separate website. There is no allegation of a connection, then or now, between Sutcliffe and Camacho or Coalition. [Citations.] At most, the pleadings indicate that an unconnected third party included a link to Coalition’s website in some of his posts, a website, it is worth repeating, where Coalition republished names and photos that a journalist had already published to the public. City does not cite a case with similar facts that extends indemnity and contribution this far.

Nor does City explain how the requested discovery could overcome Camacho’s and Coalition’s non-First Amendment legal arguments. Indeed, City does not even respond to those arguments. [Citations.]

Accordingly, on the current record, the Court finds that Camacho’s and Coalition’s motions should be granted.

[1] Coalition is not bound by the settlement and simply republished information that had previously been published to the public by a member of the press.

[2] City additionally cites Aetna Inc. v. Whatley Kallas, LLP, 2020 WL 4012597. The decision is unpublished, so the Court declines to consider it.