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Deputy D.A. Is Immune From Liability for Saying, Falsely, Man Had Been Convicted
By a MetNews Staff Writer
A lawyer who was a Los Angeles County deputy district attorney when he sent an email to a county code enforcement officer for the Department of Public Works reciting that a landowner had been adjudged guilty of misdemeanors in connection with operating an illegal dump site—although, in fact, the charges had been dismissed—could not be held liable for defamation in light of governmental immunity, the Court of Appeal held yesterday.
The opinion by Presiding Justice Elwood Lui of this district’s Div. Two affirms a judgment of dismissal that followed the sustaining of demurrers without leave to amend to the third amended complaint (“TAC”) by Los Angeles Superior Court Judge Holly J. Fujie.
Appealing the judgment was Barton Wayne Fishback who owns about 300 acres in northwestern San Fernando Valley. He sued former Deputy District Attorney David Patrick Campbell who on April 22, 2014, recited in an email to a county employee, David Pang, that Fishback, in a case in which six misdemeanors were alleged. “entered a no contest (guilty) plea.”
In actuality, all counts were dismissed in May 2009.
Appellant’s View
Urging a reversal, Long Beach attorney Mainak D’Attaray argued on behalf of Fishback:
“It’s hard to imagine a more despicable act given Campbell’s standing as an officer of the court, his special duty to achieve justice in criminal prosecutions and his power to maliciously prosecute innocent citizens of crimes.”
He continued:
“What is the strongest case of LIBEL there is given the accusation that Plaintiff is a confessed criminal and presumed a convicted criminal by a reasonable person and made by the prosecutor who failed to get a conviction.”
Div. Two’s Opinion
Lui wrote:
“While Fishback was found to have committed a multitude of violations over the years relating to his brazen scheme of operating unlawful, environmentally destructive, and dangerous solid waste disposal sites, the particular prosecution referenced in Campbell’s email did not result in a no contest plea or guilty verdict. Nevertheless, we conclude that Campbell was immune from suit under Government Code sections 821.6 and 822.2.”
Sec. 821.6 provides:
“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
The jurist set forth:
“Thus, treating the material facts as admitted, the TAC alleges that Campbell’s email was not merely an isolated or investigatory act, but part of an ongoing course of prosecutorial conduct directly tied to official legal proceedings. The email was sent in Campbell’s capacity as a deputy district attorney performing prosecutorial functions. Accordingly, because Campbell’s email was directly connected to the prosecution of official proceedings, he is entitled to absolute immunity under Government Code section 821.6.”
Sec. 822.2 says:
“A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.”
The operative complaint alleges:
“Campbell acted with actual malice, actual fraud, oppression and corruption.”
Fishback’s opening brief on appeal argues:
“The purpose of Defendant’s defamatory email was to incite a second lawless investigation against Plaintiff. The assault on Plaintiff was far more than a negligent or even intentional misrepresentation. Asserting his prosecution of Plaintiff resulted in a guilty verdict when in fact Plaintiff s acquittal of all six criminal counts meets all three exceptions, actual fraud, corruption and actual malice.”
Lui responded:
Campbell’s email…was sent approximately five years after resolution of the criminal matter. The TAC’s allegations do not support a reasonable inference that the email—which was sent internally and prompted by Fishback’s wrongful conduct—was based on anything more than a faulty memory of the disposition of a prosecution occurring years before.”
The case is Fishback v. Campbell, B339326.
Campbell ran unsuccessfully for a Los Angeles Superior Court open seat in 2004 as “Pat Campbell.”
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