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Guzzetta Files: Post Game Vetting, Behind the Eight-ball

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behind_the_eight_ballIn an attempt to do the job that got Cora Heiser  the Support to be elected, we are doing a little Armchair Quarterbacking ourselves, after the game has already been played…. Lets all do the research and share the information…… This is presented without editorial commentary.

 

We present you with Guzzetta v. City of DesertHot Springs, Filed 2/23/07.  Guzzetta v. City of Desert Hot Springs CA4/1

It reads as follows:

Guzzetta v. City of DesertHot Springs

 

Filed 2/23/07 Guzzetta v. City of Desert Hot Springs CA4/1

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION ONE

 

STATE OF CALIFORNIA

JOSEPH P. GUZZETTA,

 

Plaintiff and Appellant,

 

v.

 

CITY OF DESERT HOT SPRINGS et al.,

 

Defendants and Respondents.

D049595

 

(Super. Ct. No. INC045204)

APPEAL from a judgment of the Superior Court of Riverside County, Christopher J. Sheldon, Judge. Affirmed.

 

In this appeal, Joseph P. Guzzetta, the former city manager of the City of Desert Hot Springs (the City), challenges the trial court’s dismissal of his lawsuit against the City, and its mayor, Matt Weyuker. Specifically, Guzzetta challenges the trial court’s (i) sustaining of a demurrer to Guzzetta’s cause of action for violation of the False Claims Act (Gov. Code,  12650, 12653, subd. (b)) on the ground that Guzzetta did not give the City notice of the claim as required under Government Code section 905; and (ii) striking of Guzzetta’s remaining causes of action for defamation, false light invasion of privacy, and a violation of the Labor Code, under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16), which requires dismissal of meritless claims that would penalize an exercise of protected free speech rights.

 

Guzzetta contends that the trial court erred in sustaining the demurrer to his False Claims Act cause of action because the cause of action fell within an exception to the Government Code’s notice of claim requirements. He also argues that the court’s anti-SLAPP ruling was erroneous because the defamatory statements at issue did not constitute a valid exercise of free speech rights, and because he demonstrated a probability of prevailing on the stricken claims.

 

As discussed below, our evaluation of these contentions reveals them to be without merit. Consequently, we affirm the judgment.

 

FACTS

 

In December 2000, Guzzetta was hired by the City to be its City manager. Prior to taking the position, Guzzetta had worked as city manager for the cities of Hemet, Corte Madera and Rialto. In a January 2001 Desert Sun Newspaper article regarding Guzzetta’s hiring, Weyuker was quoted as saying that Guzzetta was ” ‘an excellent professional’ ” with ” ‘excellent credentials and superior strengths’ ” who would be an ” ‘integral part of the process’ ” of the City’s effort to ” ‘turn the corner’ ” and ” ‘make progress.’ ”

 

In December 2002, the City terminated Guzzetta from his position. In November 2003, during a contested election for mayor in which Weyuker was criticized by his opponent for firing Guzzetta (who was described by the opponent as “the most professional City Manager we ever had”), an article entitled Straight Talk from the Mayor, written by Weyuker, appeared in the Valley Breeze newspaper. The article contains five subheadings which are introduced by the statement: “Examples of the distortions that [the mayoral challenger] is spreading in this campaign are listed below.” Under the fourth subheading, “City Hall Stability,” the article includes the following statements:

 

Ÿ “The previous City Manager had dropped the ball badly to such an extent that it cost the city and its taxpayers hundreds of thousands of dollars in the short time (2 years) that he was employed by the City Council.”

 

Ÿ ” ‘The most professional City Manager we ever had’ was fired by the cities of Corte Madera, Hemet and Rialto for a whole list of reasons, including that of wasting taxpayer dollars.”

 

On December 7, 2004, Guzzetta filed a First Amended Complaint in Superior Court alleging claims against the City and Weyuker. The City and Weyuker[1]demurred to the False Claims Act cause of action on the ground that Guzzetta failed to file a notice of claim with the City within six months of the accrual of the claim as required under the Government Code. (See Gov. Code,  905, 911.2, subd. (a).) The trial court granted the demurrer as to that cause of action without leave to amend.

 

Guzzetta then filed a superseding second amended complaint, alleging three causes of action: libel, violation of Labor Code section 1050, and false light invasion of privacy. The City/Weyuker filed an anti-SLAPP motion requesting that the trial court strike the second amended complaint. The court granted the motion. Guzzetta appeals.[2]

 

DISCUSSION

 

I

 

The Trial Court Did Not Err in Sustaining the Demurrer to the

 

False Claims Act Cause of Action

 

 

Guzzetta contends that his False Claims Act cause of action falls within an exemption to the presentation requirements of the Government Code for claims related to a challenged “tax, assessment, fee or charge.” (Gov. Code,  905, subd. (a).) As a result, he argues, the trial court erred in sustaining the demurrer on the ground that Guzzetta’s claim had not been timely presented to the City.

 

“As a general rule, California law requires that all claims for money or damages against a local public entity must first be filed with the entity as a ‘condition precedent to the maintenance of the action.’ ” (Dalton v. EastBay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1571 (Dalton); Gov. Code,  905.[3]) The law specifically exempts certain categories of claims from these requirements claims that have been characterized as “essentially nontortious claims ‘for which some other adequate claims procedure has already been devised or for which the procedural protection of the Tort Claims Act [Government Code section 905] is believed to be unnecessary.’ ” (Dalton, at p. 1574; Hanson v. Garden Grove Unified School Dist. (1982) 129 Cal.App.3d 942, 948 (Hanson) ["the 12 classes of claims exempted in [Government Code] section 905 generally relate to other than tort actions”].) In accordance with the statutory framework, and the legislative history of Government Code section 905, which “indicates the scope of the enumerated exceptions to filing claims was intended to be extremely limited,” the statutory exceptions specified in Government Code section 905 are given a “strict” and narrow construction. (Dalton, at p. 1573; Hanson, at p. 946 [recognizing that the "statutory loopholes" to the claim filing requirements "have been narrowly construed"]; Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 779 (Hart) ["the Legislature intended the claims presentation statutes to broadly apply to ' " 'all forms of monetary demands' " ' "].)

 

In the instant case, Guzzetta argues his claim fell within the statutory exception contained in subdivision (a) of Government Code section 905 (the section 905(a) exemption), which excludes from the claims presentation requirements:

 

“Claims under the Revenue and Taxation Code or other statute prescribing procedures for the refund, rebate, exemption, cancellation, amendment, modification or adjustment of any tax, assessment, fee or charge or any portion thereof, or of any penalties, costs or charges related thereto.” (Gov. Code,  905, subd. (a).)

 

We disagree.[4]

 

The section of the False Claims Act invoked by Guzzetta in his amended complaint provides: “No employer shall discharge . . . an employee . . . because of lawful acts done by the employee . . . in disclosing information to a government or law enforcement agency or in furthering a false claims action . . . .” (Gov. Code,  12653, subd. (b).) The facts alleged in support of this claim are that there was a “causal connection” between Guzzetta’s “discovery and reporting” that a well-connected City contractor was “overcharging” the City, and Guzzetta’s subsequent unlawful, retaliatory “termination.” Guzzetta seeks tort damages on the claim, including redress for “humiliation, emotional distress, anguish, mental and physical pain,” and punitive damages.

 

Giving the section 905(a) exemption the “strict” and “narrow” construction intended by the Legislature, it cannot fairly be read to encompass Guzzetta’s False Claims Act cause of action. While Guzzetta’s allegations happen to reference a “charge” (the contractor’s alleged “overcharge” of the City), his cause of action is not a “[c]laim under [a] statute prescribing procedures for the refund, rebate, exemption, cancellation, amendment, modification or adjustment of any tax assessment, fee or charge . . .”; rather, it is a cause of action “under” a statute prohibiting certain types of retaliatory termination. (Gov. Code,  905, subd. (a).) In fact, Guzzetta’s claim is indistinguishable from a standard tort claim for, in Guzzetta’s own words, “wrongful termination” for which he seeks standard tort damages, and that, if litigated, would not remedy or even address any alleged overcharge. (See Hanson, supra, 129 Cal.App.3d at p. 947 [plaintiff could not avoid claims presentation requirements by attempting to recharacterize tort claim, because "the plain fact is he is suing in tort to recover damages for being denied reemployment"]; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079 ["The purposes served by the [claim presentation statute] clearly apply” when “an underlying action sounds in tort”; “causes of action . . . seek[ing] monetary recovery for emotional and mental distress, pain and suffering, humiliation, and damage to reputation . . . obviously fall within [its] terms,” id. at p. 1081, fn. omitted]; Dalton, supra, 18 Cal.App.4th at p. 1574 [plaintiffs seeking change in pension benefits were "basically alleging tortious wrongdoing by defendants" and "were required to file a claim pursuant to [Government Code] section 905″].)

 

In short, Guzzetta’s False Claims Act cause of action is not subject to exemption from the claims presentation requirements as an “essentially nontortious claim[] ‘for which some other adequate claims procedure has already been devised or for which the procedural protection of the Tort Claims Act is believed to be unnecessary.’ ” (Dalton, supra, 18 Cal.App.4th at p. 1574; Hart, supra, 76 Cal.App.4th at p. 778 ["A suit for 'money or damages' includes all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in ' "tort, contract or some other theory" ' "].) Rather it is exactly the tort type of claim for money damages (as opposed to a refund of a tax or overcharge) that the Legislature intended would be governed by the claims presentation requirements of the Government Code. Consequently, the trial court did not err in sustaining the demurrer to the False Claims Act cause of action on the ground that Guzzetta failed to adhere to Government Code section 905′s claims presentation requirements.[5]

 

II

 

The Trial Court Did Not Err in Granting Weyuker’s Anti-SLAPP Motion to Strike

 

Guzzetta’s Second Amended Complaint

 

 

Guzzetta contends that the trial court erred in granting Weyuker’s anti-SLAPP motion to strike his second amended complaint, which asserted causes of action for libel, violation of Labor Code section 1050, and false light invasion of privacy. We analyze this contention after setting forth the applicable legal principles and standard of review.

 

A. Applicable Legal Principles and Standard of Review

 

In evaluating an anti-SLAPP motion to strike, a court must engage in a two-step process. ( 425.16, subd. (b)(1).)[6]First, the court decides whether the defendant has made a prima facie showing that the act or acts of which the plaintiff complains constituted protected activity, i.e., were “in furtherance of the [defendant]‘s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. ( 425.16, subd. (b)(1); Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley).) ” ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e) . . .’ ” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78), which include “any written . . . statement or writing made in . . . a public forum in connection with an issue of public interest”; and “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” ( 425.16, subd. (e)(4)). If the defendant makes this prima facie showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on its claim. ( 425.16, subd. (b)(1); Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 (Matson).)

 

In ruling on an anti-SLAPP motion, the court is directed to consider ” ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon);  425.16, subd. (b)(2).) On appeal, we review a trial court’s ruling on an anti-SLAPP motion de novo. (Flatley, supra, 39 Cal.4th at pp. 325-326.)

 

B. The Trial Court Did Not Err in Determining that the Alleged Defamatory Statements Were Made in Furtherance of the Defendants’ Right to Free Speech

 

Guzzetta contends that Weyuker’s allegedly defamatory statements do not satisfy the first step of the anti-SLAPP analysis because the statements were made in violation of laws regulating political campaigning and the use of the City seal, and consequently lost their otherwise protected status under section 425.16, subdivision (e) as public speech on a matter of public interest.

 

“[N]ot all speech or petition activity is protected by section 425.16.” (Flatley, supra, 39 Cal.4th at p. 313.) Acts that fall within the letter of the statute as “in furtherance of the [defendant]‘s right of petition or free speech” ( 425.16) may nevertheless fall outside its spirit if they are unlawful, and thus invalid, expressions of free speech rights. (Flatley, at p. 313 ["the purpose of section 425.16 is to prevent the chilling of 'the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances' "], italics added.)

 

The anti-SLAPP exception for illegal speech is not easily established, however. “[I]f a defendant’s assertedly protected constitutional activity is alleged to have been illegal and, therefore, outside the ambit of the anti-SLAPP statute, the illegality must be established as a matter of law either through the defendant’s concession or because the illegality is conclusively established by the evidence presented in connection with the motion to strike.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285, italics added; Flatley, supra, 39 Cal.4th at p. 320 [illegal speech exception applies only if "the defendant concedes, or the evidence conclusivelyestablishes, that the assertedly protected speech or petition activity was illegal as a matter of law"].)

 

Guzzetta argues that Weyuker’s allegedly defamatory statements were unlawful and thus not protected by the anti-SLAPP statute on multiple grounds.[7]He contends that the allegedly libelous statements were made in a newspaper article that constituted a campaign ” ‘contribution’ ” (Cal. Code Regs., tit. 2,  18215) or ” ‘advertisement’ ” (Gov. Code,  84501) triggering certain disclosure requirements that Weyuker failed to follow. Guzzetta also contends that because the article included a copy of the City seal it violated the Elections Code, which makes it unlawful to use a reproduction of the “seal of the county or the seal of a local government agency in any campaign literature or mass mailing” with “intent to deceive the voters.” (Elec. Code,  18304, subd. (a).)

 

Rather than concede illegality of his actions, Weyuker vigorously disputes Guzzetta’s contentions. Weyuker argues that since the Valley Breeze was open to all candidates (as demonstrated by a declaration Weyuker submits from its publisher), its availability to Weyuker did not constitute a “contribution.” (See Gov. Code,  82015, subd. (c) [defining contribution to include the "granting of discounts or rebates by . . . newspapers not extended on an equal basis to all candidates for the same office"].) Weyuker contends as well that Guzzetta fails to demonstrate how the article constitutes an “advertisement” and that the contention is refuted by the article itself which is “an opinion piece.” (Gov. Code,  84501, subd. (a) [" 'Advertisement' means any general or public advertisement which is authorized and paid for by a person or committee for the purpose of supporting or opposing a candidate for elective office"].) With respect to the use of the City seal, Weyuker responds that the article itself which begins: “By now, most of you are probably tired of the mudslinging tactics of my opponent in the Desert Hot Springs Mayoral campaign” is unambiguously framed as a statement of the mayor’s personal views with respect to the upcoming mayoral election and not, as Guzzetta contends, “the City’s official position,” and consequently did not evidence any “intent to deceive the voters.” (Elec. Code,  18304, subd. (a).)

 

Given that Weyuker denies any illegality and presents facially plausible defenses to Guzzetta’s somewhat conclusory allegations of unlawful conduct, we agree with the trial court’s ruling that Weyuker satisfied the first prong of the anti-SLAPP analysis. Weyuker made a prima facie showing that the challenged statements were made in furtherance of his free speech rights, and this showing was not defeated by “uncontroverted and conclusive evidence” that the statements were illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320.)[8] At most, the “legality of [Weyuker's] activities is a matter of considerable dispute” a showing that is not sufficient to defeat an anti-SLAPP motion. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 459, 460 [where the defendant "neither has conceded nor does the evidence conclusively establish the illegality of its communications made during the course of debate on political issues," the "legality of [the defendant's] exercise of a constitutionally protected right [is] in dispute in the action,” and anti-SLAPP could not be defeated on grounds of illegality]; Chavez, supra, 94 Cal.App.4th at pp. 1089, 1090 [noting that "a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis," and holding that the unlawful speech "exception d[id] not apply . . . because the parties dispute” whether the challenged speech was lawful].)[9]

 

C. The Trial Court Did Not Err in Determining that Guzzetta Failed to Show a Probability of Prevailing on the Merits

 

 

Guzzetta contends that even if the trial court correctly determined that the challenged statements qualified as protected speech under the first step of the anti-SLAPP analysis, the court nevertheless erred in concluding that Guzzetta failed to establish a probability of success on the claims under the second step of the analysis.[10] We disagree.

 

1. Applicable Legal Standard

 

If a defendant demonstrates that its challenged acts were in furtherance of free speech rights (as Weyuker did here), the trial court must next determine whether the plaintiff has “a probability of prevailing on [his] claim[s].” (Equilon, supra, 29 Cal.4th at p. 67;  425.16, subd. (b)(1).) “To establish such a probability, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson, supra, 40 Cal.App.4th at p. 548.) Under section 425.16, subdivision (b)(2), the trial court must consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based,” and should also “take into consideration the applicable burden of proof in determining whether the plaintiff has established a probability of prevailing.” (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1166 (Annette F.).)

 

2. Guzzetta Fails to Establish a Probability of Prevailing on His Libel Claim

 

A lawsuit seeking to hold a defendant liable for defamation in public statements made during a political campaign is subject to powerful constitutional defenses. This is because “[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech.” (Matson, supra, 40 Cal.App.4th at p. 548; Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950 (Beilenson) ["our Constitution affords protection to statements made during the course of debate on political issues"].)

 

As with all libel claims, to prevail on such a claim, the plaintiff must demonstrate that an allegedly defamatory statement is false; “[t]ruth, of course, is an absolute defense to any libel action.” (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581 (Campanelli).) To defeat the claim, the defendant need not show “the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the ‘gist or sting’ of the remark.” (Id. at p. 582; Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 517 ["Minor inaccuracies do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified' "].) “Put another way, [a] statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” (Masson, at p. 517.)

 

In addition, to succeed on a libel claim, a public figure such as Guzzetta must also demonstrate by “clear and convincing evidence” that the defendant made a false statement with “actual malice” i.e., ” ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ “[11](Annette F., supra, 119 Cal.App.4th at p. 1167.) This is because an ” ‘[e]rroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive.” ‘ ” (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 513.)

 

Applying the legal principles summarized above to the instant case reveals that Guzzetta’s showing in support of his libel claim is inadequate to demonstrate a probability of prevailing on at least two dispositive grounds: there is an inadequate showing that the allegedly defamatory statements were (i) false, or (ii) made with “actual malice.”

 

(a) There is an inadequate showing that the statements were false.

 

The record does not demonstrate that Guzzetta would likely be able to establish that the alleged defamatory statements were false, i.e., that the gist of the remarks was not substantially true. While Weyuker submitted contemporaneous newspaper articles and referenced other sources that are consistent with his allegedly defamatory statements, Guzzetta, who is uniquely positioned to refute the statements, merely points to other statements by Weyuker to demonstrate falsity. Specifically, Guzzetta highlights the January 2001 statements by Weyuker that Guzzetta was ” ‘an excellent professional’ ” with ” ‘excellent credentials and superior strengths’ ” who would be an ” ‘integral part of the process’ ” of the City’s effort to ” ‘turn the corner’ ” and ” ‘make progress.’ ” Guzzetta contends these 2001 statements, “by themselves, establish the defamatory, malicious, and untruthful nature of the [2004] [s]tatements.”[12]

 

Guzzetta’s showing of the purported contradiction between the 2001 and 2004 Weyuker statements falls short, in this factual context, of establishing falsity for two reasons. First, a mere contradiction between two sets of statements can, at most, demonstrate that one of the sets of statements is false, but says nothing about which one; thus, one reasonable explanation for the contradiction identified by Guzzetta is that Weyuker’s allegedly defamatory statements were true and the earlier complimentary statements were false. Second, the statements in 2001 that Guzzetta was “an excellent professional” with “excellent credentials and superior strengths” do not literally contradict the 2004 statements that Guzzetta performed poorly since taking the City manager job and had been fired from earlier jobs for wasting taxpayer money. Both statements could be substantially accurate; Guzzetta could have excellent credentials and superior strengths yet performed poorly as the City manager and been fired from previous jobs for “wasting” taxpayer funds. (Campanelli, supra, 44 Cal.App.4th at p. 582 ["the defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the 'gist or sting' of the remark"]; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021-1022 [plaintiff failed to meet burden of demonstrating falsity on anti-SLAPP motion where in response to allegedly defamatory statement that he " 'owes Wife and kids thousands,' " plaintiff submitted affidavit that " 'I do not owe my wife and kids thousands,' " because this evidence left "open the possibility" that the accusation was "substantially" if not literally true].)

 

In sum, Guzzetta’s showing of falsity is inadequate because all he has done is demonstrate that Weyuker made a complimentary statement about him in 2001 and an uncomplimentary statement about him in 2004. This evidence might support a negative campaign advertisement against Weyuker for his change of position, but is insufficient to demonstrate the requisite falsity of Weyuker’s statements to defeat the anti-SLAPP motion.

 

(b) There is an inadequate showing of “actual malice.”

 

Guzzetta also fails to establish a probability that he would be able to demonstrate that the allegedly defamatory statements were made with “actual malice,” i.e., that Weyuker made the statements knowing they were probably false. Again, Weyuker highlights newspaper articles regarding Guzzetta’s job performance that are consistent with Weyuker’s statements and a declaration he submitted that states he believed his statements to be accurate. Guzzetta does nothing to rebut Weyuker’s evidence except, again, emphasizing the purported contradiction between the 2001 and 2004 statements. In addition to the logical flaws in the contradiction-proves-falsity argument already identified, the argument suffers from an additional flaw in the “actual malice” context because of the lengthy passage of time between the statements. Even if Weyuker could establish a literal contradiction between the 2001 and 2004 statements, Weyuker’s views regarding Guzzetta could certainly have changed over a three-year time period; Weyuker could have thought favorably of Guzzetta in 2001, but by 2004, with the accumulation of new information and experience, changed his view or developed a new motivation to speak candidly. In either case, the “contradiction” is easily explained by factors other than Weyuker’s knowledge of the 2004 statement’s probable falsity.[13]

 

In sum, given the powerful constitutional defenses to a libel claim in this context, there was an inadequate showing of a probability that Guzzetta would prevail. (See Beilenson, supra, 44 Cal.App.4th at p. 953 [plaintiff's libel claim against congressman for defamatory statements made in election campaign properly struck on anti-SLAPP motion "in view of [congressman's] defenses [to libel claim] under the Constitution”].) Consequently, the trial court properly struck the libel claim under the anti-SLAPP statute.

 

D. Guzzetta Fails to Show a Probability of Prevailing on His Labor Code Claim

 

 

Guzzetta also fails to establish a probability of success on his claim that the City/Weyuker violated Labor Code section 1050.

 

Labor Code section 1050 makes it unlawful for a person, after having discharged an employee, to “by any misrepresentation prevent[] or attempt[] to prevent the former employee from obtaining employment.”

 

Guzzetta fails to establish a probability that he would prevail on his Labor Code section 1050 claim on two grounds. First, there was an inadequate showing that Weyuker made any “misrepresentation.” (Lab. Code,  1050.) Again, Guzzetta contends he has “set forth a sufficient showing of Weyuker’s ‘misrepresentation’ by Weyuker’s contradictory newspaper quotations,” but as discussed in the preceding section, the “contradictions” are easily explained by factors other than falsity. (Cf. Newberry v. Pacific Racing Ass’n (9th Cir. 1988) 854 F.2d 1142, 1152 [Lab. Code,  1050 claim failed because challenged statement was literally true].)

 

Second, Guzzetta fails to make any showing that Weyuker’s statements either prevented or constituted an attempt to prevent Guzzetta from obtaining employment. (Lab. Code,  1050.) Guzzetta does not point to any evidence that he was seeking employment at the time Weyuker’s statements appeared in the Valley Breeze and that he was prevented from obtaining that employment by virtue of Weyuker’s statements, or that Weyuker made the statements in an attempt to prevent Guzzetta from obtaining employment. To the contrary, the article itself appears to refute any claim that Weyuker’s motivation in writing was to prevent Guzzetta from obtaining employment. The lengthy article was published almost a year after Guzzetta was terminated, and devotes only a small percentage of its discussion to a critique of the (unnamed) “previous City Manager.” (Weyuker, Straight Talk From the Mayor, Valley Breeze (Nov. 2003).) In addition, it is explicitly framed as a response to purported “distortions . . . spread[]” by the mayoral challenger, the bulk of which are completely unrelated to Guzzetta.

 

E. Guzzetta Fails to Demonstrate a Probability of Prevailing on His False Light Claim

 

Guzzetta also fails to establish a probability of success on his false light invasion of privacy claim, which suffers from the same flaws as the libel cause of action. A ” ‘false light’ cause of action ‘is in substance equivalent to . . . [a] libel claim, and should meet the same requirements of the libel claim . . . including proof of malice. (cf. Time, Inc. v. Hill (1967) 385 U.S. 374) . . . .’ ” (Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 543, overruled on another point in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 697.) Here, because Guzzetta did not show a probability of proving actual malice or falsity, the false light claim, like the libel claim, was properly stricken.

 

DISPOSITION

 

Affirmed.

 

 

IRION, J.

 

WE CONCUR:

 

 

HUFFMAN, Acting P. J.

 

 

O’ROURKE, J.

 

Publication courtesy of San Diego pro bono legal advice.

 

Analysis and review provided by Poway Property line Lawyers.



[1] Throughout the trial court proceedings, the City and Weyuker acted as a single entity and were treated as such by their counsel, by Guzzetta and by the trial court. This absence of differentiation between the defendants continues on appeal. We assume, consequently, that the parties do not contend that there is any significant legal distinction between Weyuker and the City with respect to any of the issues on this appeal.

 

[2] Guzzetta purports to appeal not only the trial court’s ruling on the anti-SLAPP motion (an immediately appealable order, see Code Civ. Proc.,  904.1, subd. (a)(13)), but also from the nonappealable order sustaining the demurrer. (See Nystrom v. First Nat. Bank of Fresno (1978) 81 Cal.App.3d 759, 762-763.) To cure this technical imperfection (an imperfection that is overlooked by both parties), we will ” ‘deem the order’ ” granting the anti-SLAPP motion to strike ” ‘to incorporate [a] judgment[] of dismissal and will interpret [Guzzetta's] notice of appeal as applying to the dismissal.’ ” (Ibid.; Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 493, fn. 3 [same]; Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539 [following same practice and noting that "if we were to dismiss this appeal, plaintiffs would merely go back to superior court, obtain a judgment, and appeal again. This would result only in a complete waste of time"]; cf. Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741 ["Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by [Code of Civil Procedure] section 904.1, subdivision (a)”].)

 

[3] Government Code section 905 provides: “There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of this part all claims for money or damages against local public entities . . . .”

 

[4] Guzzetta’s challenge to the trial court’s interpretation of Government Code section 905, subdivision (a) is a legal challenge that we review de novo. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)

 

[5] Guzzetta’s contention that State of California v. Altus Finance (2005) 36 Cal.4th 1284 is “dispositive” because it “t[ied] the CFCA [California False Claims Act] to the protection of the taxpayer” and thus “placed the CFCA within the exemption language of Government Code [s]ection 905[, subdivision ](a)” is incorrect. Altus did not consider the exemptions to Government Code section 905, and makes only the basic point that the “purpose [of the CFCA is] to protect the public treasury and the taxpayers” in a completely unrelated context. (Altus, at pp. 1296, 1302 [holding that action cannot be brought by the Attorney General under the False Claims Act absent an underlying false claim against "funds that are in some sense part of the public treasury"].) The fact that the False Claims Act is intended to protect the taxpayer and public funds does not mean that by simply referencing a False Claims Act violation in his complaint, Guzzetta triggered the section 905(a) exemption, and our Supreme Court did not make any such suggestion in Altus.

 

[6] Section 425.16, subdivision (b)(1) states: “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 or 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 established that there is a probability that the plaintiff will prevail on the claim.”

 

[7] Guzzetta does not dispute that, if the speech were lawful, it would be protected under section 425.16, subdivision (e)(3) and (4).

 

[8] For this reason, the case that Guzzetta contends is “dispositive,” Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, is distinguishable. In Paul, the court emphasized “there was no dispute” on the issue of whether the challenged conduct was illegal and therefore “concluded, as a matter of law, that [the challenged] activities are not a valid exercise of constitutional rights as contemplated by section 425.16.” (Id. at p. 1367; see Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1090 (Chavez) [Paul's "limited exception to the rule precluding a court from determining the validity of the asserted constitutional right in the first step of the anti-SLAPP analysis applies only where the defendant indisputably concedes the claim arose from illegal or constitutionally unprotected activity"].)

 

[9] We also reject Guzzetta’s contention that Civil Code section 3517 (“No one can take advantage of his own wrong”) or corresponding maxims of equity, require a different conclusion. As we have stated, Guzzetta failed to carry his burden of demonstrating any “wrong” on the part of Weyuker, and, consequently, the trial court was required by controlling case law to reject his argument and move to the second step of the anti-SLAPP analysis.

 

[10] While Guzzetta contends in his opening brief that he satisfied the second step of the anti-SLAPP analysis, he makes no effort to respond to Weyuker and the City’s contrary arguments in response. In fact, Guzzetta makes no mention of the second step of the analysis in his reply brief, and contends at the conclusion of that brief only that Weyuker and the City “cannot meet the first prong of the anti-SLAPP two[‑]part test.” (Italics added.)

 

[11] Guzzetta does not dispute that he is a public figure. (See Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 289 [treating city manager as public official]; Rosenblatt v. Baer (1966) 383 U.S. 75, 85 ["the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs"].)

 

[12] Guzzetta also supports his argument with two newspaper quotations of City council members; one states Guzzetta is ” ‘a professional,’ ” and the other says that Weyuker’s unspecified public comments about Guzzetta were ” ‘uncalled for’ ” because ” ‘[i]t’ ” should ” ‘have been settled in private.’ ” Guzzetta also references the mayoral challenger’s campaign flyer that criticizes his opponent for firing Guzzetta, ” ‘the most professional City Manager we ever had.’ ” These statements provide little support for Guzzetta’s contention that Weyuker’s 2004 statements were false or made with knowledge of their probable falsity (i.e., with “actual malice”), primarily because they do not literally contradict the 2004 statements.

 

[13] Guzzetta contends that Weyuker could not have believed that Guzzetta was fired for wasting taxpayer money from previous jobs when he made the 2004 statements because he would have known that prior to hiring Guzzetta and then “Guzzetta would not have been hired in the first place.” Guzzetta ignores, however, that the evidence he relies on to make this argument Weyuker’s own declaration states only that Weyuker and the other City council members who took part in hiring Guzzetta were aware of newspaper articles referencing Guzzetta’s ouster from previous city manager positions; the articles cited do not establish the specific grounds for the ouster. The declaration goes on to state, however, that after Guzzetta’s hiring, Weyuker received information that Guzzetta had hired “too many expensive consultants” and engaged in other hiring practices that led to financial problems at the other cities, i.e., the gist of the “wasting” taxpayer money statement.

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  • Published: 12 months ago on May 1, 2013
  • By:
  • Last Modified: May 1, 2013 @ 9:13 am
  • Filed Under: 29 Palms

About the author

Dan OBrien

Publisher

Cactus Thorns has been online in one form or the other since 2001. What started as a personal blog documenting the corruption and lack of Due Process of the 29 Palms Community Development Department has turned into over these many years into a hugely popular Independent Alternative News Media Outlet. We have partnered with other media including The Desert Star Weekly, Joshua Tree Star, other blogs, indie media and an incredible staff of volunteer Reporters, Commentators and Opinion Makers to create one of the most read, honest and dependable alternative to the Local traditional Media services in the country. Thanks to you the reader we are in the 5% of most read sites in the World.

2 Comments

  1. I hope this is a good fit for new city manager.

    I haven't finished reading this appellate court decision which pertains to SLAPP laws and alleged defamation caused by events when Mr. Guzzetta was Desert Hot Springs city manager

    ( ... Interesting how the courts upheld free speech).

    It ought not happen again where the 29 Palms City Council has clear and convincing evidence to "terminated" a city manager with good cause under the contract without paying the manager a years salary for wrongful termination.

    It ought never happen again where the city council goes outside the terms of the employment contract and, essentially, give an outgoing city manager an outright gift of a quarter of a million dollars as a going away present when the taxpayers didn't have to do that.

    Mr. Warne was rightfully given a choice to voluntarily terminate -- while concurrently the city council gave him a Golden Parachute. And they will not tell us how the vote went.

    Simple solution: DO NOT REELECT TWO INCUMBENT CITY COUNCILMAN WHEN THEIR TERM EXPIRES IN NOVEMBER.

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  2. Steve Spear Steve Spear says:

    Hi Branson,

    The election for the council in 29 will not happen until November 2014 not this November. At that time there will be three seats that will be available.

    Present occupants of those seats are : Jim Harris, Jay Corbin, and Danny Mintz.

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