Roshamon and the Reporters' Shield Law

The Bakersfield Californian v. Superior Court, No. F086308 (D5 Nov. 7, 2023)

A guy is found murdered in a Target parking lot in Bakersfield. After reviewing a bunch of security footage, and a weird text message to an unconnected person that said, “I just killed someone! Turn on the news!” the police narrow their case down to two suspects. They appear to be two random, somewhat down-on-their luck-guys who just met for the first time in the parking lot and decided to do some drinkin’. Then yadda, yadda, yadda, someone murders a Target customer.

Guy #1—who is first approached by the cops, IDs then fingers Guy #2—from whose cell phone the super incriminating text message was sent. He tells a meandering story that ends with Guy #2 shooting the victim in some kind of failed robbery. Guy #2 picks up a murder charge with a special circumstance. 

At Guy #2’s prelim, Guy #1 tells his story. It doesn’t totally add up to what he originally told the cops. A bunch of the details change. On cross, it comes out that Guy #1 owns and has registered a gun that matches the 9mm caliber of the bullets found in the victim. But he says he gave that gun to an out-of-town buddy for safekeeping several months beforehand. The following day, however, #2’s lawyer produced the aforementioned buddy at the ongoing prelim. Buddy apparently drove a long way to get there. Buddy says he hasn’t had any contact with Guy #1 for more than a year. And he is definitely not holding #1’s 9.

This all gets Guy #1 indicted for the same murder. The two cases are consolidated. While in custody, Guy #1 gives an interview to a jailhouse reporter. He tells another version of the story. This time he has the gun. It’s in his backpack. The similar drinking and hanging around goes on. He hears #2 shoot the victim. But he doesn’t make a big deal of it because he’s scared. They hang out some more. Only the following day does he realize his gun was missing from his backpack. The reporter’s newspaper prints a story on it.

At this point, you may be asking yourself, “what does this have to do with civil procedure?” Here’s what. #2’s attorney drops a subpoena on the newspaper, demanding any unpublished material from the interview. Guy #1’s story shifted around so much that it seems like the notes might have more impeachment material. Newspaper moves to quash, citing California’s shield law, Evidence Code § 1070. The trial court ultimately denied it, finding that the privilege had to yield to the rights of accused Guy #2.

Newspaper filed a writ petition to challenge the ruling. But there’s a problem with that. The shield law is not actually an evidentiary privilege. It is an immunity from being held in contempt for refusing to reveal a source or to disclose unpublished material. Since the newspaper had not been held to be in contempt, the Court of Appeal denied the writ, noting that the trial court could enter a contempt order, if so warranted, and then stay it to give the newspaper time to seek another writ.

Back in the trial court, newspaper basically consents to being put in contempt, with the aforementioned stay entered. That happens, and the newspaper takes another writ. The Court of Appeal—in an unpublished part of the opinion—takes issue with that too. After a lengthy review of the procedures for which a conviction for civil contempt is to be secured, the Court finds that the trial court failed to follow that process. Although the trial court seemed to do what the order denying the first writ said, apparently the court was supposed to follow all the writ procedures (even though newspaper consented to contempt), enter a judgment of contempt (including a punishment) and then stay the execution of the punishment. Regardless, having spent many pages walking through this in a part of the order that will be unciteable by anyone else, the Court of Appeal decides it will get to the merits anyway for prudential reasons. So now two guys who will potentially spend the rest of their lives in prison have been adequately educated by a bunch of dicta about indirect civil contempt.

In an opinion that reads a lot like a Cal. Supreme Court opinion from the 90s—that is, a long recitation of prior case law preceding any actual analysis—the Court gets to applying the Shield law test around page 40. (FWIW, test has been settled law for more than 30 years.) Basically:

(1) The party invoking the privilege needs to show it facially applies. That is, that the claimant is a journalist who wants to withhold a source or unpublished information.

(2) If so, the party demanding the information (usually, like Guy #2, a criminal defendant) then must make a threshold showing that there is a reasonable possibility that the withheld information could be helpful to his case.

(3) And if so, the court balances four factors to decide whether the information should be disclosed: (a) whether the unpublished information is confidential or sensitive; (b) whether the interests sought to be protected by the shield law will be thwarted by disclosure; (c) the importance of the information to the defendant; and (d) whether there is an alternative source for the information.

Newspaper clearly meets the first element. 

As to Guy #2, the burden to show that something you can’t see potentially contains information that could be helpful to your case is a tricky one that turns on the difference between “reasonable possibility” (enough) and “mere speculation” (not enough). Here, although obviously Guy #2 doesn’t know what’s in the reporter’s notes, the contents of the article circumstantially suggest that the reporter talked to Guy #1 about a number of issues that might either incuplate Guy #1 or exculpate Guy #2. That also includes material that might impeach Guy #1’s testimony. For instance, the contents of the article showed that the reporter spoke to Guy #1 about, among other things, the use of the gun, Guy #2’s cell phone, from which the incriminating text was sent, and various other issues where #1’s version of the timeline shifted over time. This was good enough to say, at least, that the trial court didn’t abuse its discretion when it found #2 met his initial burden.

On the factors:

Confidential or Sensitive: #1 gave an on-the-record jailhouse interview to a reporter, so there is little reason to believe the notes contain anything confidential or sensitive. (Notably the newspaper resisted in camera review, which could have given the court a basis to make a contrary determination). 

Interests Protected by the Shield Law: Again, Guy #1 isn’t exactly Deep Throat. There’s no indication that he gave information to the reporter as a confidential source, demanded things remain off the record, or that he gave some info on background. When a witness gives information readily and without limitation for a reporter to use however that reporter deems fit, the interests implicated by the shield law are not strongly called into play.

Need for the Information: As one might expect, this factor overlaps a good bit with the threshold burden. The Court elaborates that while the chance that the info would be really valuable was low, the potential was quite high, particularly given that Guy #2 “is facing LWOP.” (For the civilly inclined, that’s Life Without an Opportunity for Parole.) 

Alternative Source: This one, as often is the case in the law, turns on the level of generality. Guy #2 says the reporter’s notes are the only source of what Guy #1 told to the reporter. The newspaper, on the other hand, argues that we’re just talking more generally about material that can impeach Guy #1, and there’s already tons of that floating around, between the interviews with the cops, the prelim, etc. The court says the newspaper’s argument is “not persuasive.” So there was no alternative source in the way the test is meant to apply.

A Final Word on in Camera Review: Finally, the Court notes that a lot of the uncertainty in this case could have been avoided if the court held an in camera hearing. The criminal subpoena statute, Penal Code § 1326, specifically authorizes a criminal court to hold an in camera hearing about whether a defendant is entitled to subpoenaed documents. On one hand, at an in camera hearing, Guy #2 could have explained his theory of relevance in more detail, without spilling the beans to the DA as to his defense theory. On the other hand, newspaper really had confidentiality concerns, it could have shown the notes to the court to prove why that was the case. Quoting another case, the court explains that “the better policy is to encourage parties to allow disputed materials to be examined by the trial court in camera, because the court’s review may resolve the matter expeditiously and short of a contempt adjudication.”

Writ granted, but only to the extent that the trial court judged the newspaper to be in contempt. Otherwise denied.

How Many Contempts?

Moore v. Superior Court, No. G058609 (D4d3 Nov. 11, 2020)

A trustee’s Attorney in a probate case got hit with a civil contempt judgment for misconduct during a settlement conference. Allegedly, he was rude and abusive to the other parties and the settlement officer, he accused opposing counsel of lying without affording any explanation. He refused to discuss settlement. And when the officer threatened to go to the judge, Attorney objected on the grounds that the settlement proceedings were confidential. The trial court found him guilty on these four counts and fined him $900 per violation. It also ordered him to pay the opposing party’s fees for the contempt litigation under Code of Civil Procedure § 1218(a).

An interesting side point—a contempt judgment is both final and nonappealable. See Code Civ. Proc. §§ 904.1(a)(1); 1222. So the judgment gets reviewed though a writ of review, which is not much used in other contexts. 

Attorney raises a number of grounds, but only one gets traction—the unit of prosecution. Attorney says all four alleged contempts arise from a single course of conduct during a fifteen minute settlement conference. Relying on Penal Code § 654, Attorney argues that fining him four times punishes him multiple times for the same act. The Court of Appeal agrees. Although the unit of offense rules are pretty fuzzy, contempt cases seem to limit multiple charges of contempt to separate, discreet acts. When, like here, there’s only one core incident, there’s only one punishable offense. So the Court of Appeal knocks the four counts down to one.

It also strikes the attorneys’ fees. Section 1218(a) permits a fee award for contempts where the contempt consists of violating a court order. That’s not the issue here. Attorney might have earned the contempt by being rude and disrespectful, but he didn’t violate any court order. So a fee award under § 1218(a) was not authorized.

Reversed in part.

Sanctionable, But Not Contempt.

Van v. Language Line Servs., Inc., No. H041459 (D6 Feb. 1, 2017)

Plaintiff in an employment case filed an ex parte application to stay her deposition, which the court denied. She continued to object after the denial. And when the noticed date came around, she didn’t show. Defendant served some more noticed. Same objections.

Defendant ultimately moved to compel, for sanctions, and for an order of contempt. It argued that the no-show was in defiance of the order denying the ex parte to stay the depo. Plaintiff opposed and filed her own motion to quash.

The trial court issued a $1,050 sanction for the original ex parte, finding it without substantial justification. It then held her in contempt for violating the order denying the ex parte, ruling that she had no basis to continue to object after it was denied. The court awarded $7,700 as a contempt sanction. The court kicked the motion to compel out to coincide with plaintiff’s motion to quash. Plaintiff then voluntarily dismissed, and defendant was awarded costs.

There’s a threshold appealability issue, because, while a sanctions order over $5,000 is appealable, contempt orders are reviewable only by writ. Since the discovery sanctions were under the threshold, Plaintiffs path to the Court of Appeal was by way of writ. But Plaintiff filed only a notice of appeal. Given the stigma of contempt, however, the court declines to punish Plaintiff for her lawyer’s mistake and construes the appeal to be a writ, at least as to the contempt order.

On the merits, contempt only lies from a court’s order that a party do or not to do something. A mere denial of relief in a motion brought by the alleged contemnor doesn’t really cut it. Clearly, by no-showing at her depo after her request for a stay was denied, Plaintiff opened herself up to regular old discovery sanctions under Code of Civil Procedure § 2025.450(g)(1). But since the denial didn’t order her to appear, there was no basis to hold her in contempt.

Reversed.

This Would Make Me Yelp!

Hassell v. Bird, No. A143233 (D1d4 Jun. 7, 2016)

Wow. Back-to-back Yelp defamation cases. It must be a cottage industry or something. And while I might have had a few quibbles with some of the intermediate steps in the analysis on the last one, this one really manages to go off the rails.