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  • Dominic Caserta vs Nora Dipko et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Dominic Caserta vs Nora Dipko et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Dominic Caserta vs Nora Dipko et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Dominic Caserta vs Nora Dipko et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
						
                                

Preview

wn oO Oo ID 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE MLNARIK LAW GROUP, INC. WILLIAM W. WINTERS (SBN 302818) JIM ERICKSON (SBN 235630) 2930 Bowers Avenue Santa Clara, CA 95051 Telephone: (408) 919-0088 Facsimile: (408) 919-0188 Attorneys for Dominic Caserta SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA Case No.: 19CV346990 Dominic Caserta, Plaintiff's Opposition to Demurrer Plaintiff, Date: October 8, 2019 ve Time: 9:00 A.M. Dept.: 19 Santa Clara Unified School District, a California Unified School District; Nora Dipko, an individual; Gina Perez, an individual; and DOES 1 through 100, inclusive, Defendants. The general allegations in the above-captioned complaint comprise some 2300 words; here, plaintiff will summarize the key points. Plaintiff Dominic Caserta had been a teacher in Santa Clara County for more than two decades; he also taught elsewhere and had a variety of other professional and charitable interests. He was a member of the Santa Clara City Counsel and was running in the 2018 election for the Santa Clara County Board of Supervisors, a race in which he was usually described as the front-runner. In May 2018, following a Public Records Act request by a local journalist, defendant Santa Clara Unified School District (SCUSD) -- primarily via its employee, defendant Nora Dipko -- processed the request by reviewing Caserta's confidential file and emailing certain portions of it to SCUSD's counsel. Dipko, however, also emailed the confidential file to some 1600 staff members of SCUSD; one or more of these 1600 people then directly or indirectly leaked the file to the journalist who had made the records request. The journalist wrote a story 1 Opposition to DemurrerRW oN oOo IN Aw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 about the contents of the confidential file and immediately created a "witch hunt" atmosphere of unfounded condemnation of Caserta and hysteria. Soon Caserta was obliged to take leave from his teaching jobs, to abandon most of his professional and charitable interests, to end his campaign for County Supervisor, and to resign from the City Counsel. He became the subject of numerous news stories painting him in the worst possible light and containing outright falschoods, whether on TV, in newspapers, or in online journalistic sites and blogs. In other words, Caserta's life was ruined due to the distribution of his confidential file to 1600 SCUSD staff members, and then the redistribution from one or more of those staff members to the journalist, either directly or thorough a non-staff intermediary. To quote from the complaint: Before the distribution of his confidential files, Caserta was a respected member of the Santa Clara community and had good relations with other community members. Since the publication or broadcast of the news stories following the release of his confidential file, Caserta has been subject to harassment and defamatory statements both online and in person. His reputation has also suffered greatly, as many members of the Santa Clara County community no longer trust nor respect Caserta and view him with contempt. The tension has strained the relations between him and his family members, has caused Caserta to experience severe humilia- tion and embarrassment, and has made it difficult for Caserta to leave his house without feeling humiliated. It is likely that he will be unable to conduct a plausible campaign for public office at any time in the near or distant future, thus potentially ending his career in public service. As of the date of filing, it is unknown whether his career as an educator has similarly come to an end. I. Introduction In essence, there are three arguments in defendants' demurrer: 1) "because public employment in California is governed by statute, not contract," plaintiff cannot claim Breach of Contract against the school district; 2) "because the disclosure of personnel records in this case was privileged," plaintiff cannot claim Public Disclosure of Private Facts; 3) because "all government tort liability must be based on [a] statute," and Public Disclosure of Private Facts is a common law claim, plaintiff cannot claim Public Disclosure of Private Facts. 2 Opposition to DemurrerA FB wW N 0 Oe ID 10 iT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. Public Employees Are Not Barred from Alleging Breach of Contract A. A Resolution Approved the Contract: County Intended to Contract By Legislation For the propositions that "public employment in California is governed by statute, not contract" and that public employees therefore cannot sue for breach of contract (Demurrer, p. 4, lines 22-25), plaintiff cites three cases: Miller v. State of California (1977) 18 Cal.3d 808, 813- 814 ("Miller"), Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24 ("Shoemaker"); and Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690 ("Hill"). As will be described below, the leading case for the instant issue is not Miller but instead Retired Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171. First, however, the three cases defendants cited must be addressed. Miller did not establish or reaffirm a precedent that public employees may never allege breach of contract; rather, it dealt with the specific question of whether "the reduction in the mandatory age of retirement of a state employee from the age of 70 years to the age of 67 years" breached "a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law." Miller v. State of California, supra, 18 Cal.3d at 811 and 813. Noting that "statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith," id. at 814 (citation, internal quotation marks omitted), the court ruled that "the power of the Legislature to reduce the tenure of plaintiff's civil service position and thereby to shorten his state service, by changing the mandatory retirement age was not and could not be limited by any contractual obligation." Jd. (punctuation in original). Quoting Miller, the court in Shoemaker v. Myers ruled "that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law." Shoemaker v. Myers, supra, 52 Cal.3d at 23- 24 (citation, internal quotation marks omitted). The key phrase here is "insofar as the duration of such employment is concerned” -- like Miller, Shoemaker had to do with alleged breach involving the duration of public employment. The statement "public employment is not held by contract 3 Opposition to Demurrer0 OO NNO 10 ra 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 but by statute" is not presented as an absolute bar to breach of contract complaints; if it were, the phrase "insofar as" would be superfluous, in that logically an absolute rule would be effective "insofar as" any aspect of employment is concerned. Likewise, in Hill the plaintiff alleged that he had been fired, i.e., that the breach involved the duration of his employment. Hill v. City of Long Beach, supra, 33 Cal.App.4th at 1688. Citing Miller, the court in Hill ruled that "as a matter of law, Hill was not entitled to contract remedies against the City for his removal ...." Id. at 1690. Thus, Miller, Shoemaker, and Hill stand for the propositions that 1) public employment is not held by contract but by statute, and 2) insofar as duration of employment is concerned, a public employee may not allege breach of contract in a complaint. None of the cases, however, established that a public employee may never allege breach of contract, even though public employment is not held by contract but by statute. By contrast, in 2011 a unanimous state Supreme Court decided in Retired Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171 ("REOC") that not only could a public employee allege breach of contract, he or she could do so even in regard to an alleged implied term in the alleged contract. The court so ruled despite the fact that it quoted (without disapproval) the following language in Markman v, County of Los Angeles (1973) 35 Cal.App.3d 132, 134: "The terms and conditions relating to employment by a public agency are strictly controlled by statute or ordinance, rather than by ordinary contractual standards ....'"" REOC, supra, 52 Cal.4th at 1180 (quoting Markman). One sentence in the decision is enough to disprove the assertion that a public employee may never allege breach of contract in a complaint: "[WJhere the employment relationship is governed by contract, a public employee's breach of contract claim is not simply defeated by his status as a public employee." Jd. at 1182-83 (citation, internal quotation marks omitted). Granted, this sentence is predicated on the employment relationship being "governed by contract"; but that simply underscores the fact that even though it is "strictly controlled by statute or ordinance, rather than by ordinary contractual standards" (cf. id. at 1180), the employment 4 Opposition to DemurreroO Oo NI DB 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 relationship may in fact be "governed by contract" to some extent. The next sentence in the decision is even more emphatic: "Indeed, all modern California decisions treat labor- management agreements whether in public employment or private as enforceable contracts (see Lab. Code, § 1126) which should be interpreted to execute the mutual intent and purpose of the parties." Jd. at 1183 (citation, internal quotation marks omitted). The court further asserted that “[w]hen agreements of employment between the state and public employees have been adopted by governing bodies, such agreements are binding and constitutionally protected,”! and “[w]hen a public employer chooses ... to enter into a written contract with its employee (assuming the contract is not contrary to public policy), it cannot later deny the employee the means to enforce that agreement.” Id. The latter point is especially instructive: it is hard to imagine the courts of this state forbidding public employees (alleging breach) from ever having "the means to enforce" their employment agreements in court. As the 9th Circuit federal court of appeals put it (explicitly following REOC): "The California Supreme Court [ruled that] legislation creates a contract if it contains an unambiguous element of exchange of consideration by a private party for consideration offered by the state... [T]he county's intent to make a contract by legislation is clearly shown when a resolution or ordinance ratifies or approves the contract." Sonoma County Ass'n of Retired Emples. v. Sonoma County (2013) 708 F.3d 1109, 1114 and 1117 (citations, internal quotation marks omitted; emphasis added). Of course, it is not always true (as established by Miller and its progeny) that a public employee may sue for breach on any term explicit or implicit in his or her employment relationship. As one California appellate court pointed out in 2013: The judicial determination whether a particular resolution was intended to create private contractual or vested rights or merely to declare a policy to be pursued until the legislative body shall ordain otherwise requires sensitivity to the elementary proposition that the principal function of a legislature is not to make contracts, but to make laws that establish the policy of the governmental body. Policies, unlike contracts, are inherently subject to revision and repeal, and to construe laws as contracts when the obligation is not clearly and ' This refers to the protection of contracts in both the state and federal constitutions -- See, €.g., Kern v. Long Beach (1947) 29 Cal. 2d 848, 853 ("public employment gives rise to certain obligations which are protected by the contract clause of the Constitution"). 5 Opposition to DemurrerOo ND WA KR BY ON .o 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unequivocally expressed would be to limit drastically the essential powers of a legislative body. Thus, it is presumed that a statutory scheme is not intended to create private contractual or vested rights and a person who asserts the creation of a contract with the state has the burden of overcoming that presumption. Chisom v. Bd. of Retirement of Fresno Cty. Employees' Retirement Assn. (2013) 218 Cal.App.4th 400, 413 (citations, internal quote marks, brackets omitted). As intimidating as that language might be to some plaintiffs, however, on the same page the court also pointed out this bright-line rule: "Where, for example, the legislation is itself the ratification or approval of a contract, the intent to make a contract is clearly shown." Id. (citations, internal quotation marks omitted; emphasis added). In the instant case, the Santa Clara County Board of Supervisors is periodically "presented" (see below) with a given Memorandum of Understanding (MOU) between the district and the relevant union "for determination," and the Board either approves or disapproves of it. The agreement at issue here is an MOU that the Board approved -- hence, the county's intent to make a contract by legislation is clearly shown because a resolution ("determination") approved the contract. The legal route by which such power of approval is exercised is as follows: Section 4(a) of Article XI of the California Constitution provides: "County charters shall provide for [a] governing body of 5 or more members." In Santa Clara County, the governing body is the Board of Supervisors (Santa Clara County Charter, Article II, section 200). California Government Code section 25300 provides: "The board of supervisors [of a county] shall prescribe the compensation of all county officers and shall provide for the number, compensation, tenure, appointment and conditions of employment of county employees.... [SJuch action may be taken by resolution of the board of supervisors as well as by ordinance." In turn, the "Meyers-Milias-Brown Act [Government Code sections 3500-3509] authorized labor and management representatives not only to confer but to enter into written agreements for presentation to the governing body of a municipal government or other local agency." Santa Clara Cnty. Corr. Peace Officers' Ass'n v. Cnty. of Santa Clara, 224 Cal.App.4th 1016, 1028-1029 In pertinent part, sections 301 (d) and (e) of the County Charter of Santa Clara County 6 Opposition to Demurrerw oOo Om ID HW A ie 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide: "The Board of Supervisors shall ... [a]Jdopt an administrative code by ordinance which shall prescribe ... the procedures and rules of operation of all departments and officers of the county [and] provide for the number and compensation of all officers and employees." The "administrative code" referenced in the Charter is the County of Santa Clara Ordi- nance Code. Sections A25-393(a)-(b) of the Code provide, in pertinent part (emphasis added): [A] recognized employee organization shall have the right to meet and confer in good faith to negotiate wages, hours and other terms and conditions of employment with the appropriate level of management.... If agreement is reached by management and a recognized employee organization, or recognized employee organizations, on matters subject to approval by the Board of Supervisors, they shall jointly prepare a written memorandum of such understanding, and present it to the Board of Supervisors for determination. So much for that. B. If Necessary, Plaintiff Should Be Granted Leave to Amend Finally, if the court finds that plaintiff's complaint was insufficiently precise in describing his contractual relationship with SCUSD, see again Sonoma County Ass'n of Retired Emples. v. Sonoma County, supra, 708 F.3d 1109, 1117-1118 -- which, as noted above, applied state law following the Supreme Court's decision in REOC. On a"12(b)(6)" motion (federal demurrer), dismissal was warranted because the complaint’s passing references to board ratification were an insufficient basis for a court to infer that the county enacted a resolution or ordinance that ratified the relevant MOU; but the appellate court also found that it was error to deny plaintiff leave to amend. Sonoma is thus directly on point as persuasive authority, so plaintiff requests leave to amend should this court find the original complaint's Breach of Contract claim demurrable. IIL. The Disclosure of Plaintiff's Personnel Records Was Not Privileged Relying on rulings in regard to defamation law and privacy law, defendants argue that "the disclosure of personnel records in this case was privileged" and that "almost any truthful commentary on public officials or public affairs, no matter how serious the invasion of privacy, will be privileged." Demurrer, p. 5, lines 14-17. Also, because the private facts at issue included a letter of disapproval sent to plaintiff by his superiors in 2002, defendants quote the following case law: "where the charges are found true, or discipline is imposed, the strong public policy 7 Opposition to DemurrerUk BN Oo Oo IY A 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases, a member of the public is entitled to information about the complaint, the discipline, and the information upon which it was based." American Federation of State [Etc.] Employees y. Regents of University of California (1978) 80 Cal.App.3d 913, 918. First, this is a hugely complex area of law; it should not be resolved on demurrer where it is more properly reserved for an appellate court with far more time and resources. In researching only the issue defendants raised here, plaintiff's counsel felt obliged (if not satisfied) to consult at least 39 cases, including ten California Supreme Court cases, 17 California appellate court cases, one out-of-state case, six U.S. Supreme Court cases, and five from lower federal courts. Second, there are more than a few arguments in plaintiff's favor to counter those for defendants (as follows). A. Privileged Speech Versus Unprivileged Behavior: The Issue Here is Behavior It is highly relevant that Ms. Dipko is not a journalist, nor did she "publish" (or otherwise exercise) "speech"; rather, she took an act in violation of plaintiff's contract, of school district policy, and of public policy: releasing a confidential file to 1600 people, any or all of whom could have overlooked the word CONFIDENTIAL in the subject-line and forwarded the file to anyone they liked. (The same is true of any Doe employee who forwarded the file to a new recipient.) Needless to say, there is no First Amendment privilege (or any other kind) for this sort of behavior, which in no sense constitutes "speech" (unless, indeed, Ms. Dipko herself directly sent the file to the journalist, in which case it is a closer question). Referring to the primary "privilege" statute in the Civil Code, section 47 (in regard to a subsection not applicable here, but clearly analogous), the California Supreme Court has emphasized the difference between speech and behavior in the context of privilege -- that is, the distinction between injury allegedly arising from communicative acts ... and injury resulting from noncommunicative conduct [i.e., invasion of privacy]. This distinction has traditionally served as a threshold issue in [finding privilege]. For example, in Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465, we were required to determine whether a hospital was [protected by privilege] for the termination of a physician's staff privileges. We noted that the doctor's "claim [was] not that her injury ha[d] been occasioned simply by [the hospital's} malicious statements at the proceedings, but rather that she ha[d] been injured by the malicious actions of the hospital ...." (17 8 Opposition to Demurrerwn w Co eo ND 10 ul 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Cal.3d at p. 482, original italics[.)] ... [A] review of the myriad cases that have [found privilege] to shield defendants from liability demonstrates that, without exception, the privilege has applied only to torts arising from statements or publications. [Cites ten California cases.] Kimmel v. Goland (1990) 51 Cal.3d 202, 211-212 (referring to the previous numbering of Civil Code section 47(b)). Later, another court pointed out: [Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 510] distinguished routine newsgathering techniques from those employed in Dietemann vy. Time, Inc. (9th Cir. 1971) 449 F.2d 245, where newsmen gained entrance to the plaintiff's home by subterfuge and surreptitiously photographed him and recorded his conversations by means of a hidden camera and electronic devices. Such activities were not protected by the First Amendment, according to the Ninth Circuit Court of Appeals. Likewise, a photographer's constant surveillance, obtrusive and intruding presence in photographing Jacqueline Kennedy Onassis was held to be outside the news gathering privilege of the First Amendment. (Galella v. Onassis (2d Cir. 1973) 487 F.2d 986.) Such conduct was contrasted with the routine newsgathering techniques [in Nicholson}. Anti-Defamation League of B'Nai B'Rith v. Sup. Ct. (1998) 67 Cal.App.4th 1072. The fact that Dipko is not a journalist, nor presumably are the Does or the 1600 staff members who received the file, makes the claim of privilege far less certain in the (bewildering) context of federal and state "speech vs. privacy" law. The case above goes on to say: Here, the complaint alleges that petitioners disclosed protected nonpublic information to [persons] with no compelling need to know such information .... If [these] disclosures ... involved nonpublic information ..., the protections of the First Amendment would not be available, because private disclosures of such information ... could not conceivably constitute a legitimate and constitutionally protected journalistic activity. Nor would the private or "confidential" disclosure of such information to a network ... and/or affiliated organizations not involved in journalism constitute a protected activity. Id. at 1093-1094 (emphasis added). But even were Dipko or the Does journalists, the Supreme Court has emphasized that "[the] publisher of a newspaper has no special immunity from the application of general laws. He has no special privil- ege to invade the rights and liberties of others." [{] ... [I]n Dietemann v. Time [cited above] ... [t]he court proclaimed: "The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of news gathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime."? Similarly, in ? Or, in the instant case, running for office. 9 Opposition to Demurrer0 ODO IN DH Bw YH NY N NY NY YN N N KY DY BB Be Be ewe ewe he ew DB Ka on AU BF YBN F&F SBD we AX DA RF BH BS Galella v. Onassis [cited above] ... [t]he Court of Appeals [ruled]: "There is no such scope to the First Amendment right. Crimes and torts committed in news gathering are not protected. [Citations.] There is no threat to a free press in requiring its agents to act within the law." Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509, 518-519 (cites omitted). Dipko's behavior and that of the Does was, plaintiff alleges, tortious -- a factual matter that pertains to any purely legal argument about privilege, and thus one unsuited for demurrer. B. Newsworthiness Versus Prying: The Disclosure Here Was Not Newsworthy "Whether speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." DVD Copy Control Assn. v. Bunner, 31 Cal.4th 864, 883 (citing Connick v. Myers (1983) 461 U.S. 138, 147-148). The information released by Ms. Dipko, in pertinent part, related to a nine-year-old disputed accusation of an unwanted hug, and a sixteen-year-old disputed accusation of a comment about a shirt, and contact with a student's hair, shoulders, and back. Much of the policy which relates to privilege involves the importance of "news" (hence, the distinction between public, "limited" public, and private figures). The very case defendants emphasized makes the point that “hot news" is afforded more protection than minor incidents from the distant past: Particularly deserving of First Amendment protection are reports of "hot news," items of possible immediate public concern or interest. The need for constitutional protection is much greater under these circumstances, where deadlines must be met and quick decisions made, than in cases where more considered editorial judgments are possible. Most factual reporting concerns current events. For example, in Time, Inc. v. Hill, supra, 385 U.S. 374, 383- 384, fn. 7, the court cited 22 cases in which the right of privacy gave way to the tight of the press to publish matters of public interest. Seventeen of these 22 cases (77.3 percent) involved events which had occurred quite recently. Briscoe v, Reader's Digest Ass'n (1971) 4 Cal.3d 529, 535-36 (citations omitted, emphasis added). In regard to newsworthiness (i.e., defendants’ assertion that no one who is in office or running for office would ever have a cause of action for the otherwise tortious release of a confidential employment file containing "newsworthy" information), a leading case is Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200. Shulman dealt with a "limited public figure," but discussed case law dealing with public figures ("We nonetheless draw guidance from those decisions [concerning public figures], in that they articulate the competing interests to be 10 Opposition to DemurrerAR Bw N CoO IY A wD 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 balanced." Jd. at 222). In "attempt[ing] to distinguish a disclosure of private facts that was closely connected to the newsworthiness of the publication from one that superfluously exposed the subject's private life to public view" the Shulman court noted that “[flactors deserving consideration may include the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the person's privacy.” Id. at 219. The court continued: “In determining whether a particular incident is ‘newsworthy’ and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article's intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety>...." Id. at 250 (emphasis added). The court then quoted the Restatement of Torts with approval: “Some reasonable proportion is ... to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given.” Jd. at 222-223 (quoting Rest.2d Torts, section 652D, comment h) (emphasis added). Applying this, the court noted that "private facts [are] not newsworthy when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.” Jd. at 224. In short, "under the private facts tort, ... a certain amount of interest-balancing [between speech and privacy] does occur in deciding whether material is of legitimate public concern, or in formulating rules for that decision." Jd, at 227. Again, therefore, this is a heavily factual matter unsuited for demurrer. C, Public's Right to Information Vs. Privacy Rights: The "News" Was Insubstantial Defendants quote two sentences from Am. Fed. of St. Emp. v. Regents of Univ. of Calif. supra, 80 Cal.App.3d at 918, but not the sentence immediately following them: "[A] proper reconciliation of [California's Public Records] Act and the constitutional right of privacy mandates that, in situations such as that before us, the recorded complaint be of a substantial nature before public access is permitted." Id. (emphasis added). As noted above, the confidential > These are factors, subject to the court's discretion-- i.e., more than simply whether a plaintiff is running for office, the black-letter rule defendants suggest. 11 Opposition to DemurreroC Om IN DH RF WN He Nn Ne NY NY BY NN DQ a a ee a oN DW FB NY F&F SG © we aA AHA BR DH BS file at issue contained only the following: a nine-year-old disputed accusation of an unwanted hug, and a sixteen-year-old disputed accusation of a comment about a shirt, and contact with a student's hair, shoulders, and back. Notwithstanding the language defendants quoted from American Federation concerning cases where "discipline is imposed ... even where the sanction is a private reproval," that language can hardly make it a matter of law that the release of Mr. Caserta's confidential file to the world at large was "privileged" because he was running for office and because of a sixteen-year-old "private reproval" never before or since repeated (which is, literally, defendants' argument) -- after all, in the very same paragraph the court allows for consideration of whether "the recorded complaint be of a substantial nature." This court is thus under no obligation to find, as a matter of law, that "private reproval" alone rendered the sixteen- year-old complaint "substantial." II. Common Law Vs. Statutory Claims: Plantiff's Claim Has a Statutory Basis Defendants argue that the Public Disclosure claim fails (as to SCUSD, not Dipko) because it is a common law claim, rather than a claim based on statute. Demurrer, p. 11, lines 11-25. Granted, the complaint does not specify any statutes, but statutory law does in fact apply. (Note that courts are mandated to construe a "mislabeled" cause of action so it may survive demurrer; and see Porten v. U. of San Francisco (1976) 64 Cal.App.3d 825, 833: "Although the complaint may not be a model pleading, the policy of the law is to construe pleadings liberally to the end that cases will be tried on their merits rather than disposed of on technicalities of pleadings. Mistaken labels and confusion of legal theory are not fatal; if appellant's complaint states a cause of action on any theory, he is entitled to introduce evidence thereon. An action cannot be defeated merely because it is not properly named." (Citations omitted.) First, Article I Section 1 of the California Constitution provides, in pertinent part: "All people ... have inalienable rights. Among these are ... privacy.” See, e.g., Porten v. U.S.F., supra, 64 Cal.App.3d at 829 ("Th[is] constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians. [] Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone"). Note that this section 12 Opposition to Demurrerwk Bw NY 0 Oo ID 10 ra 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alone. independent of the ordinances quoted below, is sufficient to support a privacy claim by anybody against anybody except those protected by privilege: In view of the foregoing considerations and the broad language of the Califor- nia Supreme Court in White [v. Davis (1975) 13 Cal.3d 757, the first Supreme Court case to construe the privacy language in the state Constitution] to the effect that the new constitutional provision protecting privacy is aimed at curbing [inter alia] "the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclo- sure of it to some third party," the allegations of appellant's complaint, which for present purposes must be deemed true, state a prima facie violation of the state constitutional right of privacy. Porten v. U. of San Francisco, supra, 64 Cal.App.3d at 832 (emphasis added). Another case is directly on point in contravening this section of the demurrer: One of the principal "mischiefs" at which the privacy amendment is directed is the "improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party[.]" White v. Davis (1975) 13 Cal.3d 757, 775.4 Appellant has pleaded adequately that respondents engaged in such mischief: improper use of information properly obtained. That is all that is required of appellant in order to prevail against a general demurrer inasmuch as the privacy amendment “is intended to be self-executing, i.e., that the constitutional provision, in itself, ‘creates a legal and enforceable right of privacy for every Californian.” The allegations of appellant's complaint, which for present purposes must be deemed true, state a prima facie violation of the state constitutional right of privacy. Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 154-55 (emph. added). Second, the Santa Clara County Information Practices Act of 1977 (Division A16 of the County Ordinance Code) makes the following "declaration and findings" in section A16-2 ("Declaration of intent"): In order to protect the privacy of individuals, it is necessary that the mainten- ance and dissemination of personal information be subject to strict limits. (a) The purpose of this division is to provide certain safeguards for an individual against an invasion of personal privacy by requiring County agencies, except as otherwise provided by law, to: .... (2) Permit individuals to prevent records pertaining to them, obtained by such agencies for a particular purpose, from being used or made available for another purpose without their consent/.] And section A16-6 ("Conditions of disclosure") provides: "No agency may disclose any 4 Citing the same "principal mischiefs" language, another court added: "However, the right to privacy has been held to protect a diverse range of personal freedoms. (See, e.g., Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 [right of procreative choice]; Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89 [right of unmarried person to cohabit].)" Robbins v. Superior Court (1985) 38 Cal.3d199, 212-213. 13 Opposition to Demurrer& BW N oem I DW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal or confidential information unless the disclosure of such information" falls under any of seventeen exceptions. Without going into unnecessary detail, suffice to say that none of the exceptions applies. (One exception, provided in section A16-6(g), is "Pursuant to the California Public Records Act ... (Government Code § 6250 et seq.) ...." This does not apply here, since the release of plaintiff's records was not "pursuant" to anything.) Section A16-3(a), in pertinent part (subsection 4), defines "confidential information" as information "consisting solely of investigative materials maintained by an agency for the purpose of investigating a specific violation of law, [which] is necessary to complete a criminal, civil or administrative prosecution or initiate other remedial action...." Here, the allegations at issue included sexual harassment of a minor by her teacher, which is a "specific violation of law." Section A16-3(b), in pertinent part (subsections 3 and 4), defines "personal information" as any information "which is required by statute to be given to the individual to whom it pertains" or any information "to which access by the individual is not expressly prohibited by law." Arguably, the first applies to the facts alleged in the complaint; and the second definitely applies. Section A16-3(d), in pertinent part, defines "agency" as "every County office, officer, department, division, bureau, board, commission, task force, subcontractor or other County agency," with three exceptions that don't apply. Section A16-12 ("Civil remedies") provides, in pertinent part, (subsection (a)(3)): "An individual may bring a civil action against an agency whenever such agency does any of the following: ... Fails to comply with any other provision of this division, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual..." Here, the District failed to comply with section A16-6, as quoted above ("No agency may disclose any personal or confidential information"). The "Civil remedies" section also provides, in subsection (h): "Any person who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal or confidential information maintained by an agency ... shall be subject to a civil action, for invasion of privacy, by the individual to whom the information pertains." 14 Opposition to DemurrerR Bw N co Oo I Dw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally: "In any successful action brought under this section [A16-12, "Civil remedies"), the complainant, in addition to any special or general damages awarded, shall be awarded a minimum of $2,500.00 in exemplary damages as well as attorney's fees and other litigation costs reasonably incurred in the suit.” The complaint alleges that Nora Dipko sent the confidential file to about 1600 District employees; thus, res ipsa loquitur applies: only a district employee could possibly be responsible for the fact that the file circulated further. Such an act could have been negligent and intentional, since obviously the file did not forward itself (there was an intentional act), but the unknown Doe employee(s) may have negligently ignored the confidentiality of the file when forwarding it. Because by definition a District employee was responsible for the further circulation of the file (and ultimately the receipt of it by a journalist), the District bears vicarious liability for violation of section A16-12(h). Moreover, the District bears direct liability for violation of section A16-12(a)(3) by way of section A16-6. Should the court find it necessary, plaintiff asks leave to amend the complaint to reflect these Constitutional and statutory provisions. IV. Conclusion Though rooted in statute, plaintiff's employment agreement is governed by the contract (MOU) the Santa Clara County Board of Supervisors approved by resolution ("determination"). The demurrer should thus be denied in regard to the Breach of Contract count. The release of plaintiff's confidential employment file was not privileged, a point demonstrated by several different lines of argument above; and there was both a Constitutional and a statutory basis for plaintiffs invasion of privacy claim. The demurrer should be denied in regard to the Public Disclosure of Private Facts count. Should the court find it necessary and grant leave, plaintiff will amend the complaint to clarify some of the pleading issues described above._. Dated: September 23, 2019 ‘torney for Dominic Caserta 15 Opposition to Demurrer