Greater Orange News Service

Orange County Blog Site TWISTED BADGE.Com has emailed the following AP Story about its victory in the U.S. 4th District Court of Appeals in a libel suit from Joe Cavallo an honorary Orange County Reserve Sheriff.

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O.C. reserve deputy can't sue for libel, court says
From the Associated Press
June 27, 2007


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. Cedillos, who is an Orange County reserve sheriff's deputy, was never charged with vandalism, but he eventually paid Cavallo $23,000 to repair the damage. 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. The website said it "examines a system which allows bad cops to twist the badge and punishes good cops for reporting them."

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. Although Cedillos became a reserve deputy only because he was a political contributor to Sheriff Mike Carona, the appellate panel ruled the honorary status makes him a public official and worthy of media scrutiny.

"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.



END - Additional media coverage regarding this case will be available at www.twistedbadge.com The 4th DCA's unanimous opinion is included below. Thanks for staying tuned to www.twistedbadge.com.



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RONALD CEDILLOS,

Plaintiff and Appellant,

v.

MICHAEL MADIGAN et al.,

Defendants and Respondents.




G036941

(Super. Ct. No. 05CC07333)

O P I N I O N




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.