Opinion
G056715
10-17-2018
LENORE ALBERT-SHERIDAN, Appellant, v. TODD SPITZER, Respondent.
Lenore L. Albert, in pro. per., for Appellant. Lynberg & Watkins, Norman J. Watkins and Shannon L. Gustafson for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2018-01002774) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert James Moss, Judge. Affirmed. Lenore L. Albert, in pro. per., for Appellant. Lynberg & Watkins, Norman J. Watkins and Shannon L. Gustafson for Respondent.
* * *
Approximately 540,000 votes were cast in the June 2018 primary election for the Office of District Attorney in Orange County. The four candidates received the following shares of the vote: (1) Tony Rackauckas, 38.5 percent; (2) Todd Spitzer, 35.2 percent; (3) Brett Murdock, 22.4 percent; and (4) Lenore Albert-Sheridan, 3.8 percent. The voters are scheduled to choose between Rackauckas and Spitzer in a November 2018 runoff election.
Albert contests the further participation of Spitzer and Murdock (as Spitzer's potential replacement) in the election. As grounds for disqualifying Spitzer and Murdock, Albert claims they each made false statements about her during their campaigns and thereby caused her defeat. The trial court declined to grant the requested relief, concluding that no false statements were made about Albert and that any statements made were not a major contributing cause in Albert's defeat. We affirm the judgment.
Though named as a party in Albert's petition, Murdock did not make an appearance in the trial court and was not named as a party to this appeal. References to "respondents" by the trial court refer to both Spitzer and Murdock. This opinion shall focus on Spitzer, as he is the only respondent to this appeal. We shall refer to appellant as Albert (the last name she uses in her appellate documents), although the pleadings below identify her as Lenore Albert-Sheridan.
FACTS
Petition Challenging Candidates' Eligibility
On July 2, 2018, Albert filed an Elections Code section 16101 affidavit contesting the right of Spitzer to participate in the runoff election against Rackauckas (and the right of Murdock to take Spitzer's place on the ballot should the court disqualify Spitzer).
Albert's declaration makes the following allegations. During the campaign, Spitzer told voters Albert was "suspended" from the practice of law. Spitzer informed voters Albert was "not eligible" and/or "not qualified" to hold the Office of District Attorney. In doing so, Spitzer violated election law "by committing a fraud upon the voters, making the voters believe that [Albert] was not a valid choice on the ballot in the election for District Attorney." Spitzer "knew the statements were not true or had no reason to believe [they] were true" based on his experience as an attorney and Albert's presentation of contrary evidence. This conduct violated the California Constitution, requiring Spitzer to be disqualified from holding office. The petition asserts similar allegations against Murdock.
The statements by both candidates were made at campaign events, including an April 2018 event that Spitzer attended. Murdock attended several events from March to May 2018 at which he allegedly made false statements about Albert.
Evidence Submitted Pertaining to Allegedly False Statements
Albert filed several declarations from voters who had attended campaign events featuring either Spitzer or Murdock. To some extent, the declarations support Albert's allegations that Spitzer and Murdock made negative statements about Albert. For instance, one witness attested that during an April 2018 candidate forum, Spitzer "made disparaging remarks toward [Albert] stating she had lost her license to practice law." Two of the declarants claimed they did not vote for Albert in the election based on information concerning her eligibility or qualifications.
Albert also called witnesses to testify at the hearing. One witness stated Spitzer "said . . . that she's not even an attorney able to practice law." If Albert got elected, she "couldn't even fill the position." Another witness testified that Spitzer said Albert was "not qualified to run for District Attorney because [her] license had been suspended . . . ."
Spitzer filed a declaration in opposition to the petition. Spitzer had very little to say about Albert throughout the campaign, due to his perception that she was an "insignificant candidate . . . ." Spitzer averred that any statements he made concerning Albert's suspension were true and therefore not defamatory. Spitzer recalled only that he responded truthfully to a moderator's question about a civil complaint filed against him by Albert on behalf of a former employee of Spitzer, which was stricken because Albert "held herself out as an attorney when she was suspended." Spitzer "personally reviewed the State Bar website prior to the April . . . forum. According to the State Bar website [at that time, Albert] was listed as suspended from the practice of law as of February 14, 2018."
Relevant Court Proceedings Bearing on Albert
The court took judicial notice of three court proceedings that are pertinent to Albert's authorization to practice law.
On December 13, 2017, the Supreme Court denied Albert's petition for review in a State Bar disciplinary matter and ordered Albert "placed on probation for one year subject to" certain conditions. Albert was suspended from the practice of law for a minimum of 30 days, and her suspension was to continue until she satisfied three monetary sanctions awards in a civil action. The Supreme Court denied Albert's petition for rehearing on February 14, 2018. (Albert on Discipline (Cal., Feb. 14, 2018, No. S243927) 2018 Cal. Lexis 1359.)
On April 6, 2018, in an action challenging the appearance of Albert's name on the ballot, the trial court ruled: "Albert had already been suspended from the practice of law at the time she filed her candidate statement and remains so to this day." "[H]er suspension was imposed on February 14, 2018, a fact confirmed by the current State Bar website and a letter provided by the State Bar." "As for [Albert's] alleged unauthorized practice of law, the evidence clearly indicates she continued to practice law after her actual suspension became effective." The court ultimately allowed Albert's name to remain on the ballot in light of the possibility she could be qualified to act as an attorney by the time of the election. (See Daniels v. Kelley (Super. Ct. Orange County, 2018, No. 30-2018-00980421).)
On May 7, 2018, in a civil action involving an employment matter, the plaintiff's complaint was stricken as a nullity because "[t]he person who signed and filed the original Complaint, [Albert], was suspended from the practice of law, and has been suspended at all times relevant to this case. The Court has reported Ms. Albert to the State Bar for continuing to practice law by virtue of (a) the Complaint Ms. Albert prepared and filed for Plaintiff, and (b) the papers Ms. Albert filed . . . ." (See Richters v. Spitzer (Super. Ct. Orange County, 2018, No. 30-2018-00976891).)
State Bar Communications and Actions in 2018
As of various dates in February and early March 2018, the State Bar of California Web site indicated Albert's current status as "Active," and stated she "may practice law in California." However, as of March 20, 2018, the Web site represented Albert was not eligible to practice law.
A March 20, 2018 letter from the State Bar's Office of Probation to Albert stated in relevant part: "As you know, on December 13, 2017, the Supreme Court of California filed an Order suspending you from the practice of law for a period of one year, staying execution and placing you on probation upon certain conditions for a period of one year. Further, pursuant to the Order of the Court, you have been placed on actual suspension for the first thirty days of probation, and you will remain suspended until you pay the sanctions as listed in your Order, and provide satisfactory proof thereof to the Office of Probation."
After noting that the Supreme Court denied Albert's petition for rehearing on February 14, 2018, the letter further stated: "The State Bar Court has calculated that your effective date is February 14, 2018. You may wish to check your public attorney profile on the State Bar's website for any changes to your status."
However, on June 1, 2018, the State Bar wrote another letter to Albert: "This is official notification that your disciplinary suspension that went into effect on February 14, 2018, has been terminated effective March 16, 2018, and that your status has been changed to 'Active', retroactive to March 16, 2018, based on the fact that you have filed chapter 13 bankruptcy on February 21, 2018. Your actual suspension ended on March 16, 2018. As the only remaining condition to your reinstatement to the practice of law is debt that may be dischargeable in chapter 13 bankruptcy, the State Bar is reinstating you to active status."
Then, on June 28, 2018, the State Bar "resumed [Albert's] suspension pursuant to the terms of the Supreme Court's prior orders. Albert's bankruptcy case had been converted to a chapter 7 bankruptcy, and her debts were now non-dischargeable according to the State Bar.
And on July 25, 2018, the Supreme Court denied Albert's motion to reinstate her license. As far as the State Bar and Supreme Court were concerned, Albert was suspended from the practice of law as of the time this case was filed and decided. Nothing in our record indicates a change in Albert's status since that time.
Ruling and Judgment
Albert argued her suspension was invalid from the beginning. She contended her probation and suspension never actually began because the State Bar did not commence it before her bankruptcy filing. Or, even if her suspension commenced, it was interrupted by her bankruptcy filing. Thus, Albert reasons, because she was not really suspended from the practice of law and ineligible for the role of District Attorney, the statements of Spitzer and Murdock were false and fraudulent.
The court entered an order denying the election challenge on August 10, 2018. "The court finds that [Albert] was, in fact, suspended from the practice of law while the campaign was underway. No less than the California Supreme Court ordered her suspended on December 13, 2017, and as recently as July 25, 2018, refused to reinstate her. Likewise, two veteran jurists from this court . . . found her suspended while the campaign was underway. The State Bar's unilateral attempt to reinstate her after the fact does not trump the findings of two trial judges, much less the finding of the California Supreme Court. Indeed, [Albert] is collaterally estopped from raising the issue again in this court as no less than three courts have already found that she was suspended during the campaign. Now there are four. Respondents were reasonable in relying on the findings of these courts and were not required to question the bases for these decisions.
"Since it was true that [Albert] was suspended from the practice of law during the campaign, respondents neither made a false representation to voters nor did they defame her by making false statements against her. As for the assertion that her conduct was unethical, it was. Willful failure to obey an order of the court is a violation of Business and Professions Code [section] 6103. Likewise, practicing law while one's license is suspended is a violation of Business and Professions Code [section] 6126. As for the statements that her suspension made her unqualified to run for the office of District Attorney or act as the District Attorney, these comments, in the context of a political contest, were mere statements of opinion, not fact.
"Finally, the court is not persuaded that under California Constitution, Article VII, [section] 10, the statements made by respondents were 'a major contributing cause in the defeat.' The court, on its own motion, takes judicial notice of the facts that the incumbent, Rackauckas, has been the District Attorney in Orange County for many years and Spitzer is a former Deputy District Attorney, a former State Senator, and is currently a well-known member of the Orange County Board of Supervisors. Murdock, while not as well-known as Rackauckas and Spitzer, was endorsed by the Democratic Party. The contest for the office of District Attorney has long been generally known to be a contest between Rackauckas and Spitzer. Albert[] is a sole practitioner in Huntington Beach who has never held public office and has no experience as a prosecutor. Her meager showing of 3.8% cannot realistically be said to be the result of a few remarks at a handful of candidate forums."
Judgment was entered on August 23, 2018. After the notice of appeal was filed, this court promptly set an accelerated briefing schedule due to the nature of this case. (Elec. Code, § 16920.)
DISCUSSION
Albert asserts error in this case and in all underlying matters involving her suspension from the practice of law. Albert continues to contest the underlying rationale for her suspension (i.e., nonpayment of sanctions awards). Albert disagrees with the conclusions made by the trial court in the two judicially noticed matters. Albert contends that she was not actually prohibited from practicing law at the times relevant to this case (i.e., February to July 2018).
Procedural Propriety of Action
"Any candidate at a primary election may contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following grounds, that: [¶] (a) The defendant is not eligible to the office in dispute. [¶] (b) The defendant has committed any offense against the elective franchise defined in Division 18 (commencing with Section 18000)." (Elec. Code, § 16101.)
Albert cites in support of her contest Elections Code section 18500: "Any person who commits fraud or attempts to commit fraud . . . in connection with any vote cast, to be cast, or attempted to be cast, is guilty of a felony, punishable by imprisonment for 16 months or two or three years." The language of this statute is geared toward voter fraud in the casting of a ballot, rather than false statements about an electoral opponent at a public forum. (See, e.g., Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1165 ["fraudulently registering the nine noncitizens and assisting them to vote or voting for them"].) Albert identifies no case law in support of her argument that a false statement about a competing candidate at a public forum can amount to voter fraud under Elections Code section 18500.
Albert also cites the California Constitution as grounds for her election contest. "No person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate during the course of an election campaign . . . shall retain the seat to which he or she is elected, where it is established that the libel or slander was a major contributing cause in the defeat of an opposing candidate." (Cal. Const., art. VII, § 10, subd. (a).) The defamatory statement must be "made with knowledge that it was false or with reckless disregard of whether it was false or true . . . ." (Id., subd. (b).) The remedy for a violation is removal and disqualification from office, as well as the filling of the vacancy in the usual manner for that office. (Id., subds. (c), (d).) There is no case law interpreting this section of the Constitution, and no court has therefore addressed whether it can provide the basis for an Elections Code section 16101, subdivision (a) election contest.
Standard of Review
Assuming Albert has brought a cognizable action to remove candidates from the ballot based on allegedly false campaign statements (Gooch v. Hendrix (1993) 5 Cal.4th 266, 279), our review of factual findings is for substantial evidence. (Ibid.) Questions of law are reviewed de novo. (California Family Bioethics Council, LLC v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1338.)
"Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage." (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) "'California law permits the defense of substantial truth and would absolve a defendant even if she cannot "justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details."' [Citation.] 'Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified."'" (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 154.) Fraud likewise requires a knowingly false representation of fact. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)
"As a public figure in a political campaign, [Albert] cannot prevail in [her] defamation claims against [respondents] unless [she] can also demonstrate by clear and convincing evidence that the objectionable statements were made with 'actual malice.'" (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274.) "'Malice may be established by showing [respondents] had recklessly disregarded the truth' or knew their statements were false." (Ibid.) "[T]he contents of public records are generally thought to be reliable, and statements based thereon cannot be deemed to have been made with actual malice." (Id. at p. 276; see Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1452-1453 [reliance on legislative reports and newspaper articles in highlighting opponent's sexual harassment cannot amount to malice].)
Analysis of Merits
Albert was suspended from the practice of law on February 14, 2018 (per the initial State Bar determination of the effective date of her suspension), on June 28, 2018 (per the State Bar's reassessment after Albert's bankruptcy case was converted from Chapter 13 to Chapter 7), and at the time of the court's judgment in August 2018. It is undisputed that Albert was suspended from the practice of law at least for a substantial part of the period between February 2018 and August 2018. It is also undisputed that Albert chose to file a complaint on behalf of a client after the Supreme Court denied her petition for rehearing (i.e., after her suspension was finally ordered by the Supreme Court, if before the State Bar sent a letter to her confirming the official start date of that suspension).
The court properly took judicial notice of three court proceedings that resulted in pertinent orders entered in February, April, May, and July 2018. These courts rejected Albert's contention that she was free to practice law at various times during this period. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 ["while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files"].)
Albert's bankruptcy filing on February 20, 2018 and the State Bar's reaction to that filing muddled the issue of whether Albert was technically suspended from the practice of law at all relevant times (i.e., in between March 16 and June 28). Albert seeks to use the uncertainty she created by her bankruptcy filing to argue that Spitzer maliciously defamed her at a campaign event in April 2018.
It is worth noting that Albert seeks to have it both ways. On the one hand, she insists that she could not have possibly been suspended (or have known about her suspension) as of February 14, 2018, because the State Bar did not change its Web site or post its letter confirming the start of her suspension until March 20, 2018. On the other hand, Albert blames Spitzer for not knowing in April 2018 that the State Bar would, on June 1, retroactively (and temporarily) deem her suspension to have terminated as of March 18, 2018.
The court did not err in rejecting Albert's argument. Substantial evidence supports the court's factual findings. The gist of the statements about Albert — that she was suspended from the practice of law and would not be able to perform the duties of a district attorney — was true. Albert was suspended from the practice of law effective February 14, 2018, as a result of State Bar and Supreme Court proceedings. A trial court in April 2018 ruled that Albert was not eligible to practice law at that time. A trial court in May 2018 struck a pleading Albert filed on the grounds that she was not authorized to practice law. Albert was still suspended as of August 2018, when the court decided this action. It was reasonable to conclude that any statements made by Spitzer about the eligibility of Albert to practice law and fulfill the role of district attorney were true. It was also reasonable to conclude that any statements Spitzer made characterizing what occurred in the related court cases was true.
More general statements concerning Albert's purported lack of qualifications for the Office of District Attorney are nonactionable opinions, not facts that may be the subject of a defamation action. "An individual who seeks public office invites public criticism of his fitness and qualifications and, in so far as the statements might imply that, in the defendant's opinion, the plaintiff was unfit for the office he was seeking, no complaint can be made because the defendant has a right to express his opinion." (Conroy v. Spitzer, supra, 70 Cal.App.4th at p. 1454.)
Furthermore, there is no plausible case that any statements made to the voters by Spitzer or Murdock were a major contributing factor in Albert's fourth place finish. Albert's anecdotal evidence that she lost a few votes to statements about her eligibility did not require the court to rule in her favor in an election featuring more than 500,000 votes.
Although the court did not reach this issue, we also separately conclude that there is no evidence of malice as a matter of law. Spitzer's statements were based on information he obtained from documents published by California courts and the State Bar. Albert continues to claim the trial court and Supreme Court rulings are mistaken, including by filing appeals in this court. (See Albert v. Spitzer, case No. G056790; Daniels v. Albert, case No. G056153.) But a candidate for office is entitled to inform the voters of negative findings by courts and the State Bar against an opponent, without fear of a defamation action. (See Conroy v. Spitzer, supra, 70 Cal.App.4th at pp. 1448-1449 [informing voters that opponent was "guilty" of sexual harassment based on legislative committee proceedings and newspaper reporting].) Spitzer was free to bring information about Albert's professional travails to the voters. Albert, in turn, was certainly free to explain to the voters of Orange County her theory that she was not actually suspended from the practice of law.
For this reason, we disagree with the court's statement that Albert was "collaterally estopped from raising" the issue of her suspension in this case. The two trial court orders were not sufficiently final to collaterally estop Albert, and the Supreme Court rulings did not necessarily decide that Albert was ineligible to practice law at any moment between March 16 and June 28, 2018. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 11, fn. 5. [collateral estoppel only applies if the prior proceeding is final on the merits and necessarily decided the identical issue].) This misstep in the court's reasoning does not require reversal and retrial, as it was harmless.
Finally, we reject Albert's attempt to re-litigate the underlying validity of her suspension. Albert argues that: (1) the state bar proceedings against her were premised on invalid sanctions orders; (2) the State Bar and Supreme Court have incorrectly applied bankruptcy law; and (3) she did not receive appropriate notice from the State Bar regarding the start date of her suspension. The proper scope of this case is limited to the relief sought and the conduct alleged against Spitzer. We are not in a position to entertain a collateral attack on Albert's suspension or a claim contesting the State Bar's policies and procedures.
Albert's Assertions of Procedural Error
We also reject Albert's assertions of procedural error. Albert contends the court erred by requiring the action to be heard on short notice. The action was filed on July 2, 2018, and the hearing occurred on August 6, 2018, at the request of Spitzer. Election contests must be promptly decided. (See Elec. Code, §§ 16500, 16520 [court shall set hearing for a date between 10 and 20 days from the date it is ready for determination].) The court correctly decided this matter as promptly as possible. Moreover, Albert fails to identify prejudice from the prompt adjudication of this action.
Albert also posits the judgment entered by the court was improper. (See Elec. Code, § 16720 ["After the court has heard the proofs and allegations of the parties, it shall file its findings of fact and conclusions of law and immediately pronounce judgment either confirming the nomination or setting it aside and decreeing contestant nominated"].) No objections to the form of the judgment were made below. (See Cal. Rules of Court, rule 3.1590(g).) Albert's claim is forfeited. Regardless of forfeiture, the court's August 10, 2018 order explaining its ruling and August 23, 2018 judgment meet the requirements of Elections Code section 16720.
As noted above in footnote 3, the court erroneously stated in its order that Albert was collaterally estopped from raising questions related to her suspension in this lawsuit. The judgment similarly states Albert "is collaterally estopped from raising these issues again in this Court." However, we interpret this portion of the judgment to be a mere truism: once this judgment is final, Albert will be subject to principles of res judicata and collateral estoppel in the future.
DISPOSITION
The judgment is affirmed. Spitzer shall recover costs incurred on appeal.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.