Monday, June 9, 2003
Challenge to Law Allowing Police to Sue Over Complaints Rejected
C.A. Justices Uphold $350,000 Judgment for Officer Claiming Her Career Was Stymied by Ex-Lawyer’s Accusations
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Fourth District Court of Appeal Friday affirmed a $350,000 judgment against a former lawyer for filing false complaints against a police officer, in the process upholding a controversial statute that was challenged on First Amendment grounds.
Div. One upheld a San Diego Superior Court judge’s verdict following a bench trial on Dona Loshonkohl’s suit against James Kinder. In doing so, they rejected contentions by Kinder and the ACLU that Civil Code Sec. 47.5, which allows peace officers to sue for false accusations of wrongdoing contained in official complaints, is a content-based restriction on speech.
The panel, in an opinion by Justice James McIntyre, relied largely on the ruling in People v. Stanistreet (2002) 29 Cal.4th 497. That ruling upheld the analogous criminal statute making it a crime to knowingly lodge false accusations against police officers.
The U.S. Supreme Court last month declined to review the decision. The Stanistreet court noted that it was not ruling on the civil statute, which had previously been found unconstitutional by a federal district judge and by the Fourth District’s Div. Two.
Special Treatment Alleged
Like Sec. 47.5, Penal Code Sec. 148.6 was challenged on the ground it singled out a particular form of speech for special treatment. Absent Sec. 47.5, complaints against police officers, lodged with their departments in official documents, would be covered by the absolute “official proceeding” privilege of Sec. 47(b).
In the San Diego case, Loshonkohl contended that her prospects for promotion and choice assignments had been injured as a result of 20 complaints maliciously filed by Kinder, a La Jolla resident and businessman who was a member of the State Bar from 1975 until he was convicted of forgery in 1986.
According to a newspaper story, he forged a dead man’s name on a marriage certificate in order to help the man’s live-in girlfriend collect survivor’s benefits. State Bar records show he was placed on interim suspension following the conviction and resigned with disciplinary charges pending in 1989.
Kinder represented himself at trial, but was assisted by ACLU lawyers Daniel P. Tokaji, Ben Wizner, Mark D. Rosenbaum, and Jordan C. Budd on appeal.
In upholding the verdict, the appeals court Friday cited Kinder’s admission that he was seeking “revenge” when he filed the complaints against Loshonkohl.
The veteran officer headed a 1998 community policing project focusing on quality-of-life problems created by businesses in the Midtown area where Kinder operates a car rental agency and other concerns, and was responsible for the impoundment and towing of several vehicles belonging to Kinder, and for the issuance of numerous citations.
The president of the local police union told the San Diego Union-Tribune that Kinder had filed hundreds of complaints about officers over the years. “My gut feeling is Mr. Kinder is probably responsible for more complaints than any other single individual,” Bill Farrar told the newspaper following the verdict two years ago.
None were sustained by investigators.
McIntyre, writing Friday for the Court of Appeal, said that the Civil Code section, like the statute upheld in Stanistreet, is valid because it only applies if the defendant makes a knowingly false statement of fact, “speech that is constitutionally unprotected.”
There can be no liability for an honest misperception, the justice said, and the defendant is additionally protected by the statute’s requirement that the plaintiff prove the statement was made with “spite, hatred, or ill will.” As for the fact that the law gives peace officers a protection that other public servants and citizen complainants lack, McIntyre said this does not render the law unconstitutional because the Legislature is entitled to make reasonable policy judgments.
The court rejected Kinder’s claim that the damages were excessive, saying he waived the issue by not moving for a new trial.
The case is Loshonkohl v. Kinder, 03 S.O.S. 2843.
Copyright 2003, Metropolitan News Company