Judge David S. Cunningham, Case Number: 23STCV21284, Date: 2024-09-18 Tentative Ruling

Judge: David S. Cunningham, Case: 23STCV21284, Date: 2024-09-18 Tentative Ruling

Moving Party: City of Los Angeles (“City”), Michael Feuer, Michel Moore, Lizabeth Rhodes, Brian Taft, and Hasmik Collins (collectively “Defendants”)

The hearing on Defendants’ anti-SLAPP motion to strike is continued for supplemental briefing.

“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’).” (6/18/24 Ruling Re: Anti-SLAPP Motions to Strike, p. 1.) “City refused to produce the roster and photos, so Camacho filed a lawsuit to compel production.” (Ibid.)

“In September 2022, City settled the lawsuit.” (Ibid.) “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.’ [Citation.]” (Ibid.) “During the production, though, City ‘inadvertently included’ the names and pictures of some undercover officers. [Citation.]” (Ibid.) “Camacho then published the names and pictures online.” (Ibid.)

“‘Six months later, in March 2023,’ [Stop LAPD Spying Coalition (‘Coalition’)] ‘republished’ the names and pictures ‘on a website it had created, watchthewatchers.net.’ [Citation.]” (Ibid.)

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

In January 2024, City moved under the anti-SLAPP statute to strike Plaintiffs’ claims.

Thereafter, City and Plaintiffs agreed to a discovery continuance to allow Plaintiffs to conduct discovery to oppose City’s motion to strike.

Now, the Court must decide whether City’s motion to strike should be granted.[1]

“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.)

* Plaintiffs’ claims arise from City’s protected litigation activity (see Motion, pp. 10-13); and

– the litigation privilege bars Plaintiffs’ causes of action, except the malpractice cause of action (see id. at pp. 13-16);

– as a matter of law, Plaintiffs cannot establish the malpractice cause of action (see id. at pp. 16-18); and

Plaintiffs disagree. They contend the motion to strike should be denied because:

* producing documents that were not supposed to be produced under a settlement is not an action arising from protected activity (see Opposition, pp. 9-11);

* the malpractice cause of action does not arise from protected activity (see id. at pp. 12-13);

– the litigation privilege is inapplicable to City’s production of the photos (see id. at pp. 13-17);

– Plaintiffs’ negligence and breach-of-contract causes of action are partly based on non-communicative conduct (see id. at pp. 17-18);

– “the litigation privilege does not apply to non-communicative conduct” (ibid., capitalizing and bolding deleted);

– City fails to show that City and Plaintiffs did not have an attorney-client relationship (see id. at pp. 18-20); and

* the Court’s order granting Camacho’s and Coalition’s anti-SLAPP motions is preclusive (see Reply, pp. 3-5);

* Plaintiffs’ claims target protected litigation activity (see id. at pp. 5-7);

* City’s disclosure of Plaintiffs’ photos was a communicative act (see id. at p. 8);

* the statutes Plaintiffs cite do not create privacy rights in police officers’ facial features (see id. at pp. 9-10);

* “[e]xtending malpractice liability to a municipality’s settlement of a public records act lawsuit would expose hundreds of municipalities and thousands of attorneys to malpractice claims across the state” (id. at p. 11); and

Plaintiffs’ first amended complaint (“FAC”) contains eight causes of action: negligence; failure to perform mandatory duties established by law; negligence per se; invasion of privacy; public disclosure of private facts; negligent infliction of emotional distress; breach of contract third party beneficiary; and legal malpractice. The underlying premise of each cause of action is that Plaintiffs suffered harm as a result of their names and photos being published online after City disclosed them during settlement. (See FAC, ¶¶ 16-115.)

The first issue is whether City shows that Plaintiffs’ non-malpractice causes of action arise out of City’s protected activity.

City answers yes. City asserts that “the exchange of photos was a communication made in connection with an official proceeding (e.g., litigation)” and that “the disclosure concerned an issue of public interest and was conduct in furtherance of Defendants’ constitutional right to defend and settle pending litigation[.]” (Motion, p. 10.)

Plaintiffs answer no. They claim City disclosed their names and photos prior to the settlement, and the settlement did not require photos of undercover officers to be produced. They also claim it is against public interest to produce such photos. (See Opposition, pp. 9-11.)

Plaintiffs’ position is too narrow; the Court agrees with City. Police misconduct and police accountability are matters of public interest. (See Collondrez v. City of Rio Vista (2021) 61 Cal.App.5^th 1039, 1050.) Moreover, in general, litigation activities connected to settlement constitute protected activity under the anti-SLAPP statute. (See, e.g., Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4^th 141, 154-158; see also, e.g., Edmon & Karnow, supra, at ¶ 7:552.) The core alleged wrong here is that City overproduced in carrying out the settlement agreement. Although it is true that City did not memorialize the agreement until November 2022, the FAC states that City “reached” the settlement on September 16, 2022, five days before Plaintiffs’ names and photos were produced on September 21^st. (FAC, ¶¶ 16, 17.) Undisputedly, City produced Plaintiffs’ names and photos at the same time it produced the non-undercover officers’ names and photos. Indeed, Plaintiffs allege that both sets of names and photos were on the same flash drive that City provided to Camacho pursuant to the settlement agreement. (See id. at ¶ 17.) On balance, then, the Court finds that City was engaged in protected activity when it produced Plaintiffs’ names and photos along with the names and photos covered by the settlement, and the required production was not “merely incidental” to the overproduction. (Collondrez, supra, 61 Cal.App.5^th at 1049 [holding that allegedly unlawful disclosure of police officer’s personnel information to media in response to Public Records Act request arose from protected speech].) The required production and the overproduction were intertwined.[2]

The second issue is whether Plaintiffs demonstrate a probability of succeeding on the merits.

The parties disagree about the litigation privilege’s applicability. City contends it applies because City produced the flash drive during a judicial proceeding. City claims producing the flash drive was a communicative act, furthered the objects of the litigation, and was logically related to Camacho’s lawsuit. (See Motion, pp. 14-15.). Plaintiffs contend the litigation privilege does not apply because the settlement did not call for Plaintiffs’ names and photos to be disclosed. Since the disclosure was contrary to the settlement, Plaintiffs assert that the overproduction “did not achieve the objects of the litigation” and “could not be a necessary or useful step in the litigation process[.]” (Opposition, p. 14.)

“The litigation privilege . . . provides that a publication or broadcast made as part of a judicial proceeding is privileged. (People v. Potter Handy, LLP (2023) 97 Cal.App.5^th 938, 947 (“Potter Handy”), internal quotation marks omitted.) “When the litigation privilege [citation] applies, it ‘is absolute and precludes all tort theories of recovery except malicious prosecution.’” (Edmon & Karnow, supra, at para. 7:1015.1.) “The usual formation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” (Potter Handy, supra, 97 Cal.App.5^th at 947.)[3]

Notably, “[t]he [California] Supreme Court has characterized the third prong of the foregoing test, the requirement that a communication be in furtherance of the objects of the litigation, as being ‘simply part of’ the fourth[.]” (Rothman v. Jackson (1996) 49 Cal.App.4^th 1134, 1141.) “[T]he ‘connection or logical relation’ which a communication must bear to litigation in order for the privilege to apply, is a functional connection.” (Id. at 1146, emphasis in original.) “That is to say, the communicative act—be it a document filed with the court, a letter between counsel or an oral statement—must function as a necessary or useful step in the litigation process and must serve its purposes.” (Ibid., emphasis in original.) “This is a very different thing from saying that the communication's content need only be related in some way to the subject matter of the litigation[.]” (Ibid., emphasis in original.)

Again, Plaintiffs’ position is too narrow. Their effective argument is that the litigation privilege does not apply if a defendant makes a mistake, or acts negligently or recklessly, by producing unrequired information with required information – at the same time on the same flash drive – under a settlement agreement. This narrow understanding of what qualifies as a necessary or useful step is at odds with the litigation privilege’s broad scope. The privilege applies to “all publications, irrespective of their maliciousness” (Action Apartments Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4^th 1232, 1241, emphasis in original), and it can extend to fraud. (See, e.g., Bonni v. St. Joseph Health System (2022) 83 Cal.App.5^th 288, 304 [discussing statements related to settlement]; see also, e.g., Silberg v. Anderson (1990) 50 Cal.3d 205, 220 [noting that “[t]he ‘furtherance’ requirement was never intended as a test of a participant’s motives, morals, ethics or intent”].) Producing information responsive to a settlement as part of litigation is necessary and useful. It connects to, and furthers the objects of, the litigation, especially here where Camacho purposefully filed his lawsuit to obtain officer names and photos. The Court finds that City’s purported mistake or negligent or reckless act – simultaneous overproduction of unrequired names and photos – was intertwined with the necessary and useful step of producing the responsive, required information.[4]

Next, Plaintiffs offer statutory argument. It pertains to the statutory-based causes of action – failure to perform mandatory duties established by law, negligence per se, invasion of privacy, and public disclosure of private facts. Plaintiffs claim “Penal Code section 832.7, Government Code section 7922.000, and Civil Code section 1798.140 create a right of privacy in the photographs of undercover officers.” (Id. at p. 16.) They cite People v. Persolve, LLC (2013) 218 Cal.App.4^th 1267 (“Persolve”) for the proposition that, “[i]f a statute is more specific than the litigation privilege and would be significantly or wholly inoperable if the privilege applied, the privilege will not shield violations of that statute.” (Ibid.)

Section 7922.000 is a catchall under the Public Records Act that lists the facts an agency must show to justify withholding a record from disclosure. It does not mention undercover officers or state that they have privacy interests in photos.

Section 1798.140 provides a long list of definitions. Plaintiffs fail to highlight which definition they think applies and how it creates an actionable privacy interest.

Section 832.7 is a closer call. Subsection (b)(6)(D) states that “the personnel records of peace officers and custodial officers and records maintained by a state or local agency . . . are confidential” and that “[a]n agency shall redact a record disclosed pursuant to this section” “[w]here there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.” (Penal Code sec. 832.7, subds. (a), (b)(6)(D).) These statements are specific; however, Plaintiffs only devote one, conclusive paragraph to this argument (see Opposition, p. 16), and, for now, they fail to “establish a private right of action.” (Reply, p. 9.)

Plaintiffs’ last argument is unpersuasive. Plaintiffs claim the negligence and breach-of-contract causes of action are based on a mixture of communicative and non-communicative conduct. They contend the motion must be denied since the litigation privilege does not bar non-communicative conduct. (See Opposition, pp. 17-18.) The Court disagrees. City’s overproduction followed by Camacho (and Coalition) publishing Plaintiffs’ names and photos online caused Plaintiffs’ alleged damages. Plaintiffs fail to show that, absent the overproduction and publication, the non-communicative conduct harmed them. (See Reply, p. 11.)

Turning to the malpractice cause of action, the Court notes that City only received permission to argue the litigation privilege. City’s malpractice argument does not rely on the litigation privilege and goes beyond what the Court authorized.

The Court’s inclination is to continue the hearing and to give the parties a further chance to brief the malpractice issue.

As a matter of guidance, the Court is leaning toward granting the motion in favor of Moore, Rhodes, and Taft. They are not alleged to be attorneys, and the Court has not seen case law upholding a malpractice claim against non-attorneys. (See Motion, p. 17.)

Which leaves City, Feur, and Collins. Plaintiffs cite Davis v. State Bar (1983) 33 Cal.3d 231, Lucas v. Hamm (1961) 56 Cal.2d 583, Biankanja v. Irving (1958) 49 Cal.2d 647, and Osornio v. Weingarten (2004) 124 Cal.App.4th 304, claiming an attorney’s conduct can create an attorney-client relationship. They contend certain factors – “the extent to which the transaction was intended to affect Plaintiffs,” “the foreseeability of harm to Plaintiffs,” “the degree of certainty that the Plaintiffs suffered injury,” “the closeness of the connection between Defendants’ conduct and the injury,” and “the policy of preventing future harm” – support recognition of an attorney-client relationship between City, Feur, and Collins and Plaintiffs.

The Court tends to disagree. Davis involved a disciplinary action against an attorney for willful failure to represent a client. In Lucas, the Supreme Court generally held that third-party beneficiaries of a will can sue the attorney who drafted the will. Biankanja involved a notary public, not an attorney. In Osornio, the Sixth District Court of Appeal extended Lucas, finding that the testator’s care custodian and beneficiary under the will could sue the testator’s attorney. None of these cases addressed a malpractice claim, and none of them involved similar facts or government actors, which raises distinct policy considerations than cases against private actors do. Plaintiffs’ current analysis of the Biankanja factors is not sufficient to satisfy their burden.

The Court declines to analyze City’s minimal-merit argument. City asserts that Plaintiffs lack standing because they only allege future damages and that the economic-loss rule controls. (See Motion, pp. 18-19.) It is undisputed that the Court did not grant leave to argue these issues.

[1] On June 18, 2024, the Court granted Camacho’s and Coalition’s anti-SLAPP motions to strike as to City’s cross-claims. (See id. at pp. 2-5.)

[2] This finding applies to the malpractice cause of action as well. Plaintiffs allege multiple breaches of duty, but the gravamen of the claim is that “Defendants breached their legal duty of care . . . by producing the photographs of undercover officers, including Plaintiffs, to Camacho for the Camacho lawsuit.” (FAC, ¶ 111.) To repeat, the required production occurred at the same time on the same flash drive as the overproduction and was not “merely incidental[.]” (Collondrez, supra, 61 Cal.App.5^th at 1049.)

[3] “The privilege is not limited to statements made during judicial or quasi-judicial proceedings.” (Edmon & Karnow, supra, at ¶ 7:1015.1.) “It may extend to ‘steps taken prior thereto, or afterwards.’” (Ibid.) And “[i]t is irrelevant whether the communications at issue were made with malice or intent to harm.” (Ibid.)

[4] The upshot of this analysis is that it prevents the privilege from being neutered. Allowing Plaintiffs to use words like “mistake,” “negligent,” “reckless,” etc. to get around the privilege would render the privilege toothless.

Also, the Court believes this analysis applies with equal force to Plaintiffs’ arguments about whether the litigation was under serious consideration, whether Defendants “undertook their litigation obligations . . . seriously[,]” or whether applying the privilege here would create perverse incentives related to litigation[.]” (Opposition, pp. 15, 16.)