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Hugh Fleming v. City of Oceanside

January 19, 2011

HUGH FLEMING, PLAINTIFF,
v.
CITY OF OCEANSIDE, PUBLIC ENTITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ON DEFENDANT'S MOTION TO STRIKE

Still pending in this case is the Defendants' motion to strike Fleming's complaint on anti-SLAPP grounds. When the motion was first filed, it targeted three causes of action: Fleming's first cause of action for libel, invasion of privacy, and false light; his second cause of action for a violation of the Firefighter's Bill of Rights, and his third cause of action for negligence. Subsequently, Fleming voluntarily dismissed his second cause of action, the Court dismissed his invasion of privacy and false light claims with prejudice, and Fleming filed an amended complaint in which he appears to have dropped his negligence claim. Only Fleming's libel claim, then, remains vulnerable to the motion to strike. For the reasons given below, the Court DENIES the motion.

I. Background Facts

At issue here is a memorandum that Dunham sent to Fire Chief Jeff Bowman on October 19, 2006 in which Dunham opined on Fleming's fitness to be a battalion chief in the Oceanside Fire Department. (Perrigo Decl., Ex. 1.) The memo was solicited by Bowman, who as Fire Chief was tasked with filling an open battalion chief position but didn't know any of the three candidates personally or professionally. (Bowman Decl. ¶¶ 7, 9--11.) Bowman conducted personal interviews with the assistance of three acting battalion chiefs, and he asked Dunham "to provide . . . his opinions and recommendations on the three eligible candidates in writing." (Id. at ¶ 10.) One of the candidates was Fleming, and Dunham's memo was haardly flattering. He alleged that Fleming was illiterate, a racist, and a misogynist. He alleged that Fleming was driven entirely by emotion, and that he was narcissistic. He alleged that Fleming had suicidal tendencies and was reckless on the job. He alleged that Fleming was insubordinate and paid no attention to safety and training protocols. He wrote, "Hugh has few skills" before concluding "I do not recommend Hugh Fleming for promotion to Battalion Chief."

II. Legal Standard

California's anti-SLAPP statute, C.C.P. § 425.16, "allows dismissal, at an early stage, of a lawsuit designed primarily to chill the exercise of First Amendment rights." Simmons v. Allstate Ins. Co., 92 Cal.App.4th 1068, 1070--71 (2001). Specifically, the statute provides that "[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." Id. at § 425.16(b)(1).

To prevail on such a motion, Defendants must make "a threshold showing" that the challenged cause of action in fact arises from an act in furtherance of Dunham's First Amendment rights. Gallanis-Politis v. Medina, 152 Cal.App.4th 600, 609 (2007); see also Equilon Enter. v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002). The statute defines these acts to include:

(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.

C.C.P. § 425.16(e). The entire anti-SLAPP statute is to be construed broadly. Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1119 (1999); C.C.P. § 425.16(a). For example, "the definition of 'public interest' within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." Damon v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 479 (2000).

Assuming Defendants can make the requisite threshold showing that the challenged cause of action arose from an act in furtherance of free speech, the burden shifts to Fleming to demonstrative a likelihood of prevailing on the cause of action. C.C.P. § 425.16(b)(1). The 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." Rusheen v. Cohen, 37 Cal.4th 1048, 1056 (2006) (internal quotations omitted).

III. Dunham's Threshold Showing

As explained above, to prevail on the motion to strike, Defendants must first show that Dunham's memo was written "in furtherance of [his] right of petition or free speech under the United States or California Constitution in connection with a public issue." C.C.P. § 425.16(b)(1). "[S]section 425.16 extends to public employees who issue reports and comment on issues of public interest relating to their official duties," Bradbury v. Superior Court, 49 Cal.App.4th 1108, 1115 (1996), and so the critical question here is whether the filling of a battalion chief position in the Fire Department was a matter of public concern. Defendants argue that Dunham's memo "pertained directly to the effectiveness of how the Oceanside Fire Department would operate and function should plaintiff be promoted to the high-level position he sought - an issue of vital interest to citizens regarding the performance of their government." (Br. at 9.) Fleming, on the other hand, argues that "the assertions of Mr. Dunham are simply statements about a workplace promotional candidacy that has no 'public' relevance." (Opp'n Br. at 9.)

The Court agrees with the Defendants. Oceanside's Fire Department is a public agency charged with the critical task of protecting the public's safety, health, and property. Every citizen of Oceanside, and indeed, any person who passes through Oceanside, may find himself or herself in a situation that requires the Department's immediate and able response. Surely Fleming wouldn't deny that it's a matter of public interest whether Oceanside has a fire department. And surely he wouldn't deny that it's a matter of public interest whether the Fire Department carries out its duties competently. It has to follow, then, that it's a matter of public interest whether the Fire Department's battalion chiefs, second in rank only to Fire Chief Bowman, have the appropriate knowledge, experience, and temperament for the job. Dunham's memo spoke precisely to this.

An issue of public interest within the meaning of section 425.16 "is any issue in which the public is interested." Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042 (2008) (emphasis in original). The issue "need not be 'significant' to be protected by the anti-SLAPP statute -- it is enough that it is one in which the public takes an interest." Id. Thus, the Court makes little of Fleming's claim that there was no "open" or "public" debate about his candidacy for battalion chief, and that there was no "highly publicized investigation" into the various candidates for the position. (Opp'n Br. at 6, 8.) The anti-SLAPP statute does not require that the asserted public interest be the subject of a live debate or discussion, (even though there was one here). It is sufficient that the ...


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