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:GOP ACTIVIST CAN'T SUE WEBSITE, COURT RULES:

GOP ACTIVIST CAN'T SUE WEBSITE, COURT RULES:

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Sat, 21 Jul 2007

FROM THE LOS ANGELES TIMES

NEWPORT BEACH

GOP activist can't sue website, court rules

An appeals court has ruled that a Republican activist can't sue a website for libel for publishing a story about how he vandalized a political rival's $200,000 Bentley.

In April 2005, Ronald Cedillos allegedly got into a shouting match at a Newport Beach restaurant with attorney Joe Cavallo. Later, Cedillos allegedly used a key to scratch the Bentley's paint job.

The website www.twistedbadge.com , owned by private investigator Michael Madigan, reported the incident, (www.twistedbadge.com/story_articles/id_312/) and Cedillos sued for defamation.

But the 4th District Court of Appeal said in a June 22 opinion that Cedillos cannot sue for libel because he's a reserve deputy and must meet stricter rules for public officials who want to bring defamation suits.

* * *

Correction: Defamation lawsuit ruling

THE ASSOCIATED PRESS

SANTA ANA, Calif. -- In a June 27 story about a ruling by the 4th District Court of Appeal to block the filing of a defamation lawsuit against a Web site, The Associated Press erroneously reported that plaintiff Ronald Cedillos is a reserve sheriff's deputy in Orange County. Jim Amormino, a spokesman for the Orange County Sheriff's Department, said Cedillos lost his reserve status two years ago.

Also, a source line below the text should have attributed the story to the Los Angeles Daily Journal, not the Daily Commerce.

Last modified: June 28. 2007 3:16PM

* * *

 June 27, 2007

PANEL WON'T LET ACTIVIST SUE WEB SITE


By Don J. DeBenedictis
Los Angeles Daily Journal Staff Writer

      SANTA ANA - A Republican activist cannot sue a muckraking Web site for reporting allegations that he had vandalized a prominent Orange County lawyer's Bentley automobile. One reason he can't, according to the unpublished opinion Friday from the 4th District Court of Appeal, is that he was a "reserve deputy" in the Orange County Sheriff's Department, who had to satisfy the strict rules for public officials bringing libel suits - even though, apparently, he gained that status only for being a political supporter of Sheriff Mike Carona and never served as a deputy. Cedillos v. Madigan, G036941 (Cal. App. 4th Dist. June 22, 2007).

      "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," Justice David G. Sills wrote for a unanimous panel.

      The twisted tale began April 10, 2005, when Republican businessman Ronald Cedillos and criminal defense attorney Joe Cavallo allegedly got into a shouting match at a Newport Beach restaurant, perhaps over a woman. By the time the evening was over, local police were ready to charge Cedillos with vandalism for "keying" Cavallo's $200,000 Bentley.

      A Web site called "twistedbadge.com," based in the county, reported the story in May, and in June, Cedillos sued the site's owner, Michael Madigan, for defamation. But, as is so often the case in the close-knit world of law enforcement at the county level in Orange County, there is more to the story. Cavallo at the time was representing Gregory Haidl, the son of a county assistant sheriff, against rape charges, and he was fighting furiously with District Attorney Tony Rackauckas's office throughout the case.

      Cedillos, a former Long Beach businessman now living in Laguna Niguel, had at one time been a top fundraiser for Gov. Pete Wilson. He was reportedly close to both Rackauckas and Carona, and Carona had made him a reserve deputy.

      And according to twistedbadge.com, the woman involved was Christina Macaulay, now the host of a local cable show but formerly a consultant to Cavallo. She is the sister of Mark Macaulay, who back then was Rackauckas' media spokesman.

      Meanwhile, Carona has been roundly criticized for appointing as many as 86 friends and political contributors as reserve deputies, allowing them to carry badges and more easily get gun permits. Several have gotten into trouble, including Ronald Yi, now facing criminal charges in San Bernardino for flashing his badge and gun at a pair of golfers in front of him on a course. Another, Stephen Mensinger, allegedly asserted his county authority in a squabble with a flight attendant.

      The California Commission on Peace Officer Standards and Training suspended 56 of the reserve deputies, and county Republican powerhouse Michael J. Schroeder negotiated an agreement in 2005 between the commission and the sheriff's office about how they might be reinstated.

      Schroeder, a Santa Ana lawyer whose wife is Rackauckas' chief media adviser, did not return a phone call about the issue. A spokesman for Carona's office also did not return calls. According to the Orange County Register and the sheriff's Web site, 240 sworn and unsworn reservists are in the reserve program overall.

      Cedillos turned in his badge to uniformed deputies shortly after the alleged keying incident, according to twistedbadge.com. He had been dropped from the state POST commission's roll of peace officers in 2002, according to Friday's appellate opinion.

      His attorney, Deborah Drooz of Stroock & Stroock & Lavan in Los Angeles, said that reduced status is one reason Cedillos should have been allowed to continue his defamation suit against Madigan. The defense "did not remotely prove that Mr. Cedillos was a public official," Drooz said. "There was no evidence in the record," she said.

      Drooz said Cedillos was an "honorary" deputy and businessman who wanted only to "rehabilitate his reputation after a false charge of vandalism."

      Cedillos was never charged with any crime as a result of the keying incident, although the opinion says he has admitted paying Cavallo $23,000 to fix the car. Cavallo said he cannot discuss the matter because of a confidential settlement. He has gotten rid of the car.

      The appellate court ruled Friday that, given Cedillos legal status as a public official, Madigan had demonstrated he could defeat the defamation case on the merits. Success on the merits is one of the two requirements to obtain an anti-SLAPP motion. He also satisfied the other prong, that the suit being SLAPPed down challenge protected speech about a public issue.

      "Orange County is not Mayberry," Sills wrote. "Those allegations [of malfeasance by a deputy] readily qualify as a public issue."

      Madigan said he is happy and relieved by the decision. "It's the result of not caving in," he said. "It's what you have to do when you write." His attorney, John R. Hanson of Worthe, Hanson & Worthe in Santa Ana, could not be reached Tuesday.

      Drooz said she found no other decision declaring a reserve deputy to be a public official. She said she has no idea whether sheriffs in other counties award the title to friends and contributors.

      Meanwhile, Carona's practice remains under attack. One in-house critic, Lt. Jeff Bardzik, has sued the sheriff for demoting him. In the suit and in a deposition in the Yi case, Bardzik repeated the charges that Carona appointed 86 friends and contributors as reservists after taking office in 1999, according to the Register. Bardzik v. County of Orange, 8:07-cv-00141 (C.D. Cal., filed Feb. 6, 2007).

      "It was the friends and family program," Bardzik's attorney, Dan Stormer of Pasadena, said.

* * *

OPINION

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RONALD CEDILLOS,

      Plaintiff and Appellant,

    v.

MICHAEL MADIGAN et al.,

      Defendants and Respondents.

         G036941

         (Super. Ct. No. 05CC07333)

    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 website?s banner is ?Our Mission Is To Promote Public Awareness Of The Need To Be Vigilant In Matters Involving Law Enforcement Malfeasance.?#  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 Cavallo?s new Bentley.

    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 Vermont?s.  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 officer?s 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.)#  Cedillos asserts that he has presented at least a prima facie case of constitutional malice in this case based on either Madigan?s 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 Reader?s 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.  Madigan?s 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 Cavallo?s) 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.  I?ll get your car.??  That?s 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. I?ll 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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