Fierro v. County of L.A. CA2/7 ( 2021 )

Filed 9/22/21 Fierro v. County of L.A. CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GEORGE FIERRO, B305699
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19PSCV00760)
v.
COUNTY OF LOS ANGELES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Vicencia, Judge. Affirmed.
Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for
Plaintiff and Appellant.
Collins Collins Muir + Stewart, Tomas A. Guterres,
David C. Moore, and Daniel D. Hoffman for Defendant and
Respondent.
____________________________
George Fierro sued the County of Los Angeles and three of
its divisions, the District Attorney’s Office, the Public Defender’s
Office and the Alternate Public Defender’s Office, for defamation,
negligent and intentional infliction of emotional distress and
interference with prospective economic advantage, based on
inclusion of information regarding Fierro in the County’s Officer
and Recurrent Witness Information Tracking System (ORWITS)
database. The trial court granted the County’s special motion to
strike pursuant to Code of Civil Procedure section 425.16
(section 425.16)—the anti-SLAPP statute.1 On appeal Fierro
argues his complaint did not arise from protected speech or
petitioning activity because the statements about him in
ORWITS “are demonstrably and factually false” and his lawsuit
is not barred by the litigation privilege (Civ. Code, § 47, subd. (b))
because the County’s creation and maintenance of ORWITS
constitute noncommunicative conduct. He also argues the trial
court abused its discretion when it denied his ex parte motion to
conduct discovery, filed several weeks after briefing on the
County’s motion had been completed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The County’s Discovery Compliance Database
The Los Angeles County District Attorney’s Office created
and maintains a discovery compliance system comprised of a
Brady database, a repository of information that must be
disclosed in criminal cases pursuant to Brady v. Maryland (1963)
373 U.S. 83 and Penal Code section 1054.1, subdivision (e), and
1 SLAPP is an acronym for “strategic lawsuit against public
participation.” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn. 2.)
2
ORWITS, which contains impeaching and potentially impeaching
information about law enforcement officers and other frequent
witnesses, including experts, in criminal cases.2 The information
in the two databases is shared only if a case has been filed.
When a witness list is submitted for the generation of subpoenas,
the system automatically checks the witness information in the
Brady/ORWITS databases. If a match is found, the system
advises the assigned prosecutor, who may view the data and
disclose information about the witness as necessary for the
preparation and trial of the case. As explained in a March 15,
2018 special directive from District Attorney Jackie Lacey, the
discovery compliance system is intended to “improve the capacity
for deputies to comply with constitutional and statutory discovery
obligations, ensure defendants receive a fair trial, protect
recurrent witnesses from unfair surprise, and preserve the
integrity of convictions.”
The County advises peace officers when it enters
information about them into the ORWITS database. An officer
may submit documents to explain or refute the information, and
any documents provided are included with the ORWITS entry
and are accessible to the prosecutors using the system.3
2 ORWITS was first implemented in February 2017. The
Brady database was added to work in conjunction with ORWITZ
in March 2018.
3 Entries into ORWITS are not reconsidered except in cases
of mistaken identity. In contrast, a recurrent witness notified of
his or her entry into the Brady database may seek
reconsideration of that decision.
3
2. Fierro’s Complaint
Fierro filed an unverified complaint on August 23, 2019 for
defamation, negligent and intentional infliction of emotional
distress and interference with prospective economic advantage,
naming as defendants the County, as well as the Los Angeles
County District Attorney’s Office, the Los Angeles County Public
Defender’s Office and the Los Angeles County Alternate Public
Defender’s Office, administrative divisions of the County. Fierro
alleged he is a law enforcement officer in Los Angeles County
and, on information and belief, ORWITS reveals to third parties
that law enforcement officers are included in the database and
discloses information about officers “that is unverified, false and
defamatory.” Fierro further alleged law enforcement officers are
added to the database without their knowledge or consent and
“[j]ust being on the list creates an inference that the party on the
list is dishonest or untruthful.”
In his first cause of action for defamation, Fierro alleged he
had recently discovered he was included in the ORWITS
database, which he refers to as a “list.” He additionally alleged
the information attributed to him was defamatory and
defamatory statements about him had been made by defendants
to third parties “including other law enforcement persons and
lawyers.” In his second and third causes of action, in addition to
incorporating the prior allegations in the complaint, Fierro
alleged the defendants and their agents had negligently (second
cause of action for negligent infliction of emotional distress) or
intentionally (third cause of action for intentional infliction of
emotional distress) spread false and defamatory rumors about
him. In his fourth cause of action for interference with
prospective economic advantage, in addition to incorporating the
4
prior allegations, Fierro alleged, again on information and belief,
that the defendants, “through surreptitious contacts and
correspondence with employers have made false and defamatory
statements and among other things said [Fierro] is dishonest.”
As a result of this conduct, Fierro alleged he is in jeopardy of
having his contractual relations and future relationships with
potential employers terminated.
3. The County’s Special Motion To Strike
The County demurred to Fierro’s complaint, moved to
strike portions of the complaint, including the prayer for punitive
damages and attorney fees, and filed a special motion to strike
the entire complaint pursuant to section 425.16. The hearing on
the special motion to strike was originally scheduled for
January 6, 2020 but, because of recusals, was continued several
times, eventually to March 12, 2020.
In its special motion to strike the County described
ORWITS (through a declaration of the deputy district attorney in
charge of the discovery compliance unit of the district attorney’s
office and attached material as to which the County requested
judicial notice) and explained each of Fierro’s four causes of
action was based on allegedly defamatory speech disseminated as
a result of its use of ORWITS. The County argued its disclosures
of information from the ORWITS database were protected
activity within the meaning of section 425.16, subdivision (e)(2),
as communications made in connection with anticipated
litigation, and its input of information regarding Fierro and other
officers constituted protected activity within the meaning of
section 425.16, subdivision (e)(4), as conduct in furtherance of the
exercise of free speech in connection with a public issue or an
issue of public interest (criminal prosecutions).
5
As to the possible merits of the lawsuit, the County argued
its creation and use of ORWITS were absolutely protected by the
litigation privilege in Civil Code section 47, subdivision (b). Its
activity, the County asserted, was also conditionally privileged
under Civil Code section 47, subdivision (c), the common interest
privilege; and Fierro could not prove malice. In addition, the
County identified several Government Code immunity provisions
it argued applied in the case and defeated Fierro’s causes of
action as a matter of law. In any event, the County contended,
the information in ORWITS regarding Fierro was true and,
therefore, not actionable.
4. Fierro’s Opposition and the County’s Reply
In his declaration in opposition to the special motion to
strike, Fierro described himself as a senior detective and 27-year
veteran of the El Monte Police Department. According to Fierro,
he was included in ORWITS based on a false accusation that he
had committed perjury and falsified evidence in connection with
a 2012 criminal trial of an El Monte police sergeant, which ended
in a mistrial and dismissal of charges when the jury could not
reach a verdict.4 In retaliation, the district attorney’s office
4 In June 2014 Fierro received a notice of administrative
interview, which he attached as an exhibit to his opposition
declaration, that explained the trial deputy in the case of People
v. Guadarrama reported potential wrongdoing by Fierro. “It is
alleged you may have lied on your report as well as attempted to
minimize or distort evidence in the case. It is further alleged you
provided false trial testimony . . . . [¶] During your testimony,
you testified Sergeant Guadarrama reported to you she had been
struck by Javier Marquez on the day of the incident. Yet, you
failed to take appropriate action on that day and failed to
document those statements in your report.”
6
placed him in the ORWITS database and refused to remove his
name despite the fact he was “completely exonerated” from any
wrongful conduct following an internal affairs administrative
review. Fierro attached a copy of the letter he received notifying
him of his inclusion in the ORWITS database.5
In his declaration Fierro provided examples of cases in
which he had participated as an investigating officer but was not
called as a witness because of information concerning him in the
ORWITS database. He also attributed to his inclusion in
ORWITS his unsuccessful applications to become an investigator
with the Los Angeles County Public Defender’s Office and a
Los Angeles County Sheriff’s Department “deputy sheriff lateral.”
In his legal memorandum in opposition to the special
motion to strike, Fierro conceded statements made to prosecutors
preparing for trial generally are protected activity within the
5 The three paragraph letter, dated October 9, 2018, stated:
“The Discovery Compliance Unit (DCU) of the Los Angeles
County District Attorney’s Office has information that you
allegedly failed [to] include potentially exculpatory evidence in
your report in the case of People v. Guadarrama. [¶] This
information will not be kept in the Office’s Brady database, which
maintains information that must be provided to the defense if
you are a witness in the future, but will be stored in ORWITS
(Officer and Recurrent Witness Information Tracking System), an
informational database. The entry of information into ORWITS
is not an endorsement or a final determination of its validity and
the decision to release information contained therein can only be
made by the handling Deputy District Attorney, in consultation
with their supervisor and/or the court. [¶] If you have any
questions or believe you have been misidentified, please contact
the DCU at . . . . Additional information can be found at . . . by
entering the password . . . .”
7
meaning of section 425.16, but argued the statements in ORWITS
are not protected “because the statements themselves are
demonstrably and factually false and cannot be challenged in any
manner, thereby permanently stigmatizing Fierro.” Fierro
contended being on a government blacklist containing false
information without the ability to challenge the false information
constituted stigmatization and reputational injury for which
relief must be available. In support Fierro cited Flatley v. Mauro
(2006) 39 Cal.4th 299 (Flatley), which held, when it is conceded or
established as a matter of law by uncontested evidence that a
person acted illegally when exercising his or her First
Amendment rights, that activity is not protected within the
meaning of the anti-SLAPP statute.
Fierro described the elements of his causes of action for
defamation, intentional and negligent infliction of emotional
distress and interference with prospective economic advantage
and argued the evidence submitted with his opposition papers
made a prima facie showing of facts that, if proved, would
support a judgment in his favor on each of his causes of action.
Fierro asserted the litigation privilege was unavailable as a
defense because his lawsuit, which he described as “analogous to
invasion of privacy,” was based on reputational injury caused by
his inclusion in the ORWITS database, which he described as
noncommunicative conduct outside the scope of the privilege.6 He
6 In two somewhat enigmatic footnotes in his opposition
papers, Fierro stated, “Based on the evidence submitted, Fierro
moves to amend his Complaint to conform to proof.” No motion to
amend the complaint is contained in the record on appeal; there
is no indication Fierro filed or the trial court ruled on any such
motion; and Fierro does not contend on appeal the trial court
erred in denying a motion to amend.
8
also contended he had made a prima facie showing of malice and
that the governmental immunity provisions cited by the County
were inapplicable.
In a final section of the opposition memorandum, Fierro
requested, as an alternative to denying the motion, that the trial
court grant a continuance to allow him to conduct discovery to
overcome anticipated hearsay objections to his declaration (which
recited conversations he had with other law enforcement officers
and prosecutors) and the two other declarations filed with his
opposition. However, Fierro did not file a separate noticed
motion to permit discovery.
In reply papers in support of its special motion to strike,
the County emphasized the exhibits Fierro attached to his
opposition declaration confirmed the information in the ORWITS
database—that he had “allegedly failed [to] include potentially
exculpatory evidence in [his] report in the case of People v.
Guadarrama”—was true and, therefore, not actionable under any
of Fierro’s theories of liability. That is, Fierro had been
investigated, following a report by a trial deputy of potential
misconduct, for lying on a report, attempting to minimize or
distort evidence and providing false trial testimony; and the
disposition reached by the administrative review of his alleged
misconduct was “Not Sustained,” which the document
distinguished from “Unfounded”7 and “Exonerated,”8 and defined
7 The notification of complaint disposition sent to Fierro
defined “Unfounded” as, “When the investigation discloses that
the alleged act(s) did not occur or did not involve department
personnel.”
8 The notification of complaint disposition defined
“Exonerated” as, “When the investigation discloses that the
9
as “When the investigation discloses that there is insufficient
evidence to sustain the complaint or fully exonerate the
employee.” Concurrently with its reply memorandum, the
County filed objections to portions of Fierro’s declaration and
attached exhibits, as well as to several paragraphs in the
declarations of two witnesses submitted by Fierro, on a variety of
grounds, including that Fierro’s recitation of conversations with
prosecutors and law enforcement officers constituted
inadmissible hearsay.
5. The Trial Court’s Ruling
Following a hearing on March 12, 2020 the trial court
granted the County’s requests for judicial notice, sustained in
part and overruled in part the County’s objections to Fierro’s
opposition evidence and granted the County’s special motion to
strike Fierro’s complaint. The court awarded the County $3,850
in attorney fees and costs.
Judgment was entered in favor of the County on March 26,
2020. Fierro filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, subdivision (b)(1), provides, “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
alleged act occurred, but that the act was justified, lawful and/or
proper.”
10
established that there is a probability that the plaintiff will
prevail on the claim.”
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a
public issue or an issue of public interest.”
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061 (Park).) In making its determination the
court must consider the parties’ pleadings and affidavits or
declarations describing the facts on which liability or defenses
are predicated. (§ 425.16, subd. (b)(2).) “Only a cause of action
that satisfies both prongs of the anti-SLAPP statute—i.e., that
11
arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to being stricken under the
statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics
omitted; accord, Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step
burden is to identify the activity each challenged claim rests on
and demonstrate that that activity is protected by the anti-
SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for
which liability is asserted.’” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson); accord, Park, at p. 1060.) “To
determine whether a claim arises from protected activity, courts
must ‘consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
form the basis for liability.’” (Wilson, at p. 884; accord, Park, at
p. 1063.)
“As to the second step, a plaintiff seeking to demonstrate
the merit of the claim ‘may not rely solely on its complaint, even
if verified; instead, its proof must be made upon competent
admissible evidence.’” (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 788.) “‘We have described this second step as a
“summary-judgment-like procedure.” [Citation.] The court does
not weigh evidence or resolve conflicting factual claims. Its
inquiry is limited to whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient
to sustain a favorable judgment. It accepts the plaintiff’s
12
evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.’”
(Ibid.; see Taus v. Loftus (2007) 40 Cal.4th 683, 714 [the court
should grant the section 425.16 motion “‘if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim’”].)9
We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Sweetwater Union High School Dist. v. Gilbane
Building Co. (2019) 6 Cal.5th 931, 940; Park, supra, 2 Cal.5th at
p. 1067.)
2. Each of Fierro’s Causes of Action Arises from Protected
Activity
Each of the four causes of action in Fierro’s complaint is
expressly based on the disclosure to third parties of information
contained in the ORWITS database. The declarations submitted
in support of the County’s special motion to strike establish that
all disclosures were to prosecutors or other law enforcement
personnel in connection with ongoing or anticipated criminal
proceedings. Addressing this evidence, Fierro acknowledges, as
he must, that in general all such communications are protected
activity within the meaning of section 425.16, subdivision (e)(2)
9 The record on appeal contains a notice of ruling prepared
by counsel for the County but not a minute order from the
March 12, 2020 hearing. The reporter’s transcript does not
include an explanation by the court of its ruling granting the
motion, but the court’s questioning of Fierro’s counsel during the
hearing suggests the court rejected Fierro’s reliance on Flatley,
supra, 39 Cal.4th 299, as it related to step one of the anti-SLAPP
analysis, and found the litigation privilege applicable to bar
Fierro’s claims under step two.
13
and (4). (See, e.g., Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115 [“[c]ommunications
preparatory to or in anticipation of the bringing of an action or
other official proceeding are within the protection of the litigation
privilege of Civil Code section 47, subdivision (b), . . . [and] are
equally entitled to the benefits of section 425.16,” internal
citations and quotation marks omitted]; Contreras v. Dowling
(2016) 5 Cal.App.5th 394, 408-409 [the anti-SLAPP statute
protects not only litigants, but their attorneys’ litigation-related
statements; “‘[u]nder the plain language of section 425.16,
subdivision (e)(1) and (2), as well as the case law interpreting
those provisions, all communicative acts performed by attorneys
as part of their representation of a client in a judicial proceeding
or other petitioning context are per se protected as petitioning
activity by the anti-SLAPP statute’”]; Cabral v. Martins (2009)
177 Cal.App.4th 471, 480 [“communicative acts performed by
attorneys as part of their representation of a client in a judicial
proceeding or other petitioning context are per se protected as
petitioning activity by the anti-SLAPP statute”]; see also Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056 [section 425.16 protects
“communicative conduct such as the filing, funding, and
prosecution of a civil action,” including such acts when
“committed by attorneys in representing clients in litigation”].)
Notwithstanding the general applicability of section 425.16
to disclosures such as those challenged in his complaint, citing
Flatley, supra, 39 Cal.4th 299, Fierro contends the trial court
erred in ruling the County had carried its first-step burden
because the statements concerning him are “demonstrably and
factually false” and thus not protected activity under
14
section 425.16, subdivision (e). Fierro misapprehends the
meaning and scope of Flatley and its progeny.
In Flatley, a case involving a plaintiff’s causes of action for
civil extortion, intentional infliction of emotional distress and
wrongful interference with economic advantage against an
attorney who had threatened to publicize a rape allegation
against the plaintiff if he did not pay a multimillion dollar
settlement, the Supreme Court held, if “the defendant concedes,
or the evidence conclusively establishes, that the assertedly
protected speech or petition activity was illegal as a matter of
law, the defendant is precluded from using the anti-SLAPP
statute to strike the plaintiff’s action.” (Flatley, supra, 39 Cal.4th
at p. 320;10 accord, Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 286-287 [“once the defendant has made the
required threshold showing that the challenged action arises
from assertedly protected activity, the plaintiff may counter by
demonstrating that the underlying action was illegal as a matter
of law because either the defendant concedes the illegality of the
assertedly protected activity or the illegality is conclusively
established by the evidence presented in connection with the
motion to strike”].) However, as this court recently explained in
Towner v. County of Ventura (2021) 63 Cal.App.5th 761, 771,
“illegal” as used in Flatley was intended to mean violation of a
criminal statute: “‘[A] plaintiff’s complaint always alleges a
defendant engaged in illegal conduct in that it violated some
10 The Supreme Court explained that activity illegal as a
matter of law is not protected by the constitutional guarantees of
free speech and petition and, therefore, cannot be the basis for a
special motion to strike under section 425.16. (Flatley, supra,
39 Cal.4th at p. 305.)
15
common law standard of conduct or statutory prohibition, giving
rise to liability, and we decline to give plaintiffs a tool for
avoiding the application of the anti-SLAPP statute merely by
showing any statutory violation.’”
Fierro’s complaint does not allege the County’s
maintenance and use of ORWITS violated any statute, let alone a
criminal statute. Moreover, unlike the situation in Flatley, in
which the defendant’s illegal activity (extortion) had been
established as a matter of law by the undisputed evidence before
the trial court considering the special motion to strike (see
Flatley, supra, 39 Cal.4th at p. 330 [“[e]valuating Mauro’s
conduct, we conclude that the letter and subsequent phone calls
constitute criminal extortion as a matter of law”]), Fierro merely
alleges the County’s activity is unlawful, which the County
vigorously denies. Accordingly, that allegation, which has
neither been conceded to be true nor conclusively established by
undisputed evidence, is an issue for the second step of the anti-
SLAPP analysis, which, in turn, requires Fierro to address the
litigation privilege. (Id. at p. 316 [if “a factual dispute exists
about the legitimacy of the defendant’s conduct, it cannot be
resolved within the first step but must be raised by the plaintiff
in connection with the plaintiff’s burden to show a probability of
prevailing on the merits”]; Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand
Flatley to stand for this proposition: when a defendant’s
assertedly protected activity may or may not be criminal activity,
the defendant may invoke the anti-SLAPP statute unless the
activity is criminal as a matter of law”]; Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 965 [same].) In sum, the trial court
correctly ruled the County carried its burden of demonstrating its
16
protected activity formed the basis for each of Fierro’s causes of
action.
3. The Litigation Privilege Bars Fierro’s Lawsuit
Civil Code section 47, subdivision (b),11 creates an absolute
privilege for litigation-related communications: “‘Although
originally enacted with reference to defamation [citation], the
privilege is now held applicable to any communication, whether
or not it amounts to a publication [citations], and all torts except
malicious prosecution. [Citations.] Further, it applies to any
publication required or permitted by law in the course of a
judicial proceeding to achieve the objects of the litigation, even
though the publication is made outside the courtroom and no
function of the court or its officers is involved. [Citations.] [¶]
The usual formulation 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 have some
connection or logical relation to the action. [Citations.]’
[Citation.] Thus, ‘communications with “some relation” to
judicial proceedings’ are ‘absolutely immune from tort liability’ by
the litigation privilege [citation]. It is not limited to statements
made during a trial or other proceedings, but may extend to steps
taken prior thereto, or afterwards.” (Rusheen v. Cohen, supra,11 Civil Code section 47 provides in part: “A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any
(1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) in the initiation or
course of any other proceeding authorized by law and reviewable
pursuant to Chapter 2 (commencing with Section 1084) of Title 1
of Part 3 of the Code of Civil Procedure, except as follows . . . .”
17
37 Cal.4th at p. 1057; see Action Apartment Assn., Inc. v. City of
Santa Monica (2007) 41 Cal.4th 1232, 1241 [“‘[t]he principal
purpose of [the litigation privilege] is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort
actions’”]; Trinity Risk Management, LLC v. Simplified Labor
Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1006.)
Moreover, “‘communications made in connection with
litigation do not necessarily fall outside the privilege merely
because they are, or are alleged to be, fraudulent, perjurious,
unethical, or even illegal’ assuming they are logically related to
litigation.” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th
903, 921; accord, Kashian v. Harriman (2002) 98 Cal.App.4th
892, 920; see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948,
956 [“the privilege extends even to civil actions based on
perjury”]; Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965
[“‘[t]he litigation privilege has been applied in “numerous cases”
involving “fraudulent communications or perjured testimony”’”].)
If applicable, as the trial court apparently ruled, the
litigation privilege is a complete bar to Fierro’s causes of action
for defamation, negligent and intentional infliction of emotional
distress and interference with prospective economic advantage
and a proper ground for granting the County’s special motion to
strike.
Recognizing that the litigation privilege protects
communications among prosecutors or between prosecutors and
law enforcement personnel during or in anticipation of active
criminal proceedings (e.g., Optional Capital, Inc. v. Akin Gump
Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 116
[“[m]any cases have explained that [Civil Code] section 47[,
18
subdivision] (b) encompasses not only testimony in court and
statements made in pleadings, but also statements made prior to
the filing of a lawsuit, whether in preparation for anticipated
litigation or to investigate the feasibility of filing a lawsuit,”
internal quotation marks omitted]), Fierro notes, correctly, that
the privilege protects only against communicative acts and not
against noncommunicative conduct. (E.g., Kimmel v. Goland
(1990) 51 Cal.3d 202, 205, 209 [litigation privilege does not apply
to unlawful recording, in anticipation of litigation, of confidential
telephone conversations]; Ribas v. Clark (1985) 38 Cal.3d 355,
363-365 [privilege applies to testimony, which is communicative,
but not to alleged earlier illegal eavesdropping, which is
noncommunicative]; see Action Apartment Assn., Inc. v. City of
Santa Monica, supra, 41 Cal.4th at p. 1248 [“[a] threshold issue
in determining if the litigation privilege applies is whether the
alleged injury arises from a communicative act or
noncommunicative conduct”]; Rusheen v. Cohen, supra,37 Cal.4th at p. 1058 [“[b]ecause the litigation privilege protects
only publications and communications, a ‘threshold issue in
determining the applicability’ of the privilege is whether the
defendant’s conduct was communicative or noncommunicative”].)
According to Fierro, “the gravamen of this lawsuit is that
Appellant is named on the ORWITS list, that the list accuses him
of committing perjury and falsifying evidence, that the
information on the list is false, and that Appellant has no
opportunity to challenge or correct the false accusation. . . . The
existence of the ORWITS list itself is noncommunitive [sic]
conduct.” (See Rusheen, at p. 1058 [“The distinction between
communicative and noncommunicative conduct hinges on the
gravamen of the action. [Citations.] That is, the key in
19
determining whether the privilege applies is whether the injury
allegedly resulted from an act that was communicative in its
essential nature”].)
Fierro’s attempt to avoid the bar of the litigation privilege
fails. Whether or not a cause of action for inclusion in the
ORWITS database without any dissemination of that information
would be cognizable (apart from any issue of privilege),12 Fierro
12 To support his theory that merely being included in the
ORWITS database is actionable, Fierro relies on Elhady v. Kable
(E.D.Va. 2019) 391 F.Supp.3d 562, in which the plaintiffs alleged
they had been listed in the Department of Homeland Security’s
Terrorist Screening Database (TSDB) and had suffered various
negative consequences as a result. The district court held the
program violated the plaintiffs’ right to procedural due process
because individuals were not told whether they were in the TSDB
or provided with the information upon which their status might
be based; there was no independent review of TSDB status by a
neutral decision maker; and the government’s standards for
inclusion in the TSDB were vague. (Id. at pp. 580-582.) The
court held the plaintiffs were not entitled to pre-deprivation
notice, but were entitled to “post-deprivation process.” (Id. at
pp. 583-584.)
Although Fierro in his reply brief continues to cite the
district court’s Elhady opinion and commend it as “vital” to our
analysis, a month before that brief was filed the Fourth Circuit
reversed the district court’s decision, rejecting “plaintiffs’ basic
contention . . .that inclusion in the TSDB stigmatizes them by
associating them with terrorism.” (Elhady v. Kable (4th Cir.
2021) 993 F.3d 208, 225.) The Court of Appeals held the
plaintiffs’ due process claim failed because there had been no
public disclosure of the information in the database (only
intragovernmental disclosures) and because reputation alone is
not a “liberty” interest protected by the due process clause.
(Id. at pp. 225-226.)
20
did not plead any such cause of action. As to the causes of action
he did allege—defamation, infliction of emotional distress and
interference with prospective economic advantage—
communication of the allegedly false material in the ORWITS
database is an essential element of his claims. As discussed,
Fierro alleged with respect to his defamation cause of action that
the purportedly false and defamatory statements “were made by
Defendants to third parties including other law enforcement
persons and lawyers”; as to his infliction of emotional distress
causes of action that defendants “negligently spread false and
defamatory rumors” about him and “intentionally spread false
and defamatory rumors about him”; and for his interference
cause of action that defendants “distributed to third parties false
information,” “illegally shared false information” and “actively
and intentionally through surreptitious contacts and
correspondence with employers have made false and defamatory
statements.”13
To be sure, as the Supreme Court acknowledged in
Jacob B. v. County of Shasta, supra, 40 Cal.4th at page 957,
13 Notwithstanding the reference in his complaint to “third
parties,” Fierro did not proffer any evidence in opposition to the
County’s motion that information from the ORWITS database
had been communicated to anyone but prosecutors and law
enforcement personnel or for reasons other than pretrial and
trial-related activities; and he did not argue in the trial court,
and does not argue on appeal, that the litigation privilege is
inapplicable for that reason. In particular, Fierro did not suggest
information from ORWITS that purportedly led to his failure to
be hired by the Los Angeles County Public Defender’s Office or
the Los Angeles County Sheriff’s Department had been disclosed
other than in a litigation context.
21
accessing information stored in a computer database is
noncommunicative conduct. But the Court continued, “[B]ecause
‘the cause of action is based on a communicative act, the
litigation privilege extends to those noncommunicative actions
which are necessarily related to that communicative act.’” (Ibid.;
accord, Rusheen v. Cohen, supra, 37 Cal.4th at p. 1052.)
4. The Trial Court Did Not Abuse Its Discretion in Denying
Fierro’s Belated Ex Parte Motion for Discovery
a. Procedural background
On November 11, 2019, two weeks after the County had
filed its special motion to strike, Fierro served written discovery
(special interrogatories) on defendants. The County served
written responses on December 12, 2019, objecting to the
discovery based, in part, on section 416.25, subdivision (g), which
stays all discovery upon the filing of a special motion to strike.
As discussed, in his opposition to the special motion to
strike filed December 20, 2019, Fierro requested, as an
alternative to the court denying the motion, that the matter be
continued and he be permitted to depose several witnesses in
order to avoid likely hearsay objections to portions of the
declarations (including Fierro’s) submitted with the opposition to
the motion. On December 27, 2019 the County filed its reply in
support of the special motion to strike and, as predicted by
Fierro, objected to significant portions of the opposition
declarations.
At the originally scheduled hearing on the special motion to
strike on January 6, 2020, Judge Peter Hernandez recused
himself and continued the hearing on the motion to February 26,
2020. Counsel for Fierro and the County were present at the
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January 6, 2020 hearing. Fierro did not request authorization to
conduct discovery.
On January 22, 2020 Fierro filed an ex parte motion to take
depositions and to compel the County to respond to written
discovery. Fierro asserted discovery was necessary “to deal with”
the hearsay objections the County had interposed to the
declarations submitted with Fierro’s opposition papers. The
County opposed the ex parte request. At a hearing on
January 23, 2020 Judge Gloria White-Brown denied the ex parte
motion, ruling Fierro should have filed a noticed motion to
request discovery.14
b. Fierro failed to properly seek discovery
Section 425.16, subdivision (g), provides, “All discovery
proceedings in the action shall be stayed upon the filing of a
notice of motion made pursuant to this section. . . . The court, on
noticed motion and for good cause shown, may order that
specified discovery be conducted notwithstanding this
subdivision.” Orders granting or denying discovery pursuant to
section 425.16, subdivision (g), are reviewed for an abuse of
discretion. (Balla v. Hall (2021) 59 Cal.App.5th 652, 692;
Contemporary Services Corp. v. Staff Pro Inc. (2007)
152 Cal.App.4th 1043, 1061.)
A trial court does not abuse its discretion by refusing to
grant an ex parte application seeking discovery “when
section 425.16, subdivision (g) unequivocally requires a noticed
14 Judge White-Brown disclosed at the hearing that her
daughter is a deputy district attorney in Los Angeles County.
Judge White-Brown subsequently recused herself; and the case
was transferred to Judge Michael P. Vicencia, who heard the
special motion to strike.
23
motion for such requests.” (Contemporary Services Corp. v. Staff
Pro Inc., supra, 152 Cal.App.4th at p. 1062 [no abuse of discretion
in denying ex parte application for discovery under
section 425.16, subdivision (g)]; accord, Tuchscher Development
Enterprises, Inc. v. San Diego Unified Port Dist. (2003)
106 Cal.App.4th 1219, 1247-1248 [plaintiff’s discovery request
“was not authorized under section 425.16, subdivision (g) because
it was not made by noticed motion”].)
Even if an ex parte request for discovery under
section 425.16, subdivision (g), were permissible, however, Fierro
failed to make “an affirmative factual showing in a declaration
containing competent testimony based on personal knowledge of
irreparable harm, immediate danger, or any other statutory basis
for granting relief ex parte,” as required by California Rules of
Court, rule 3.1202(c). As discussed, when preparing his
opposition to the County’s special motion to strike, Fierro
recognized that significant portions of his declaration and those
of his two witnesses were subject to hearsay objections. Nothing
prevented Fierro from filing a noticed motion seeking discovery
at that time to address the evidentiary issues he anticipated,
even if it would have been necessary to accompany the motion
with an ex parte request for an early hearing date. The trial
court acted well within its discretion in denying the discovery
request.
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DISPOSITION
The judgment is affirmed. The County is to recover its
costs on appeal, including attorney fees in an amount to be
determined by the trial court.
PERLUSS, P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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