 |
 |
to fill out a simple form to connect to Classified Postings in your area.
|
|
|
|
|
Loshonkohl v. Kinder6/6/2003
CERTIFIED FOR PUBLICATION
The issue presented in this case is whether Civil Code section 47.5 (undesignated section references are to this code) is unconstitutional under the First Amendment as improper content-based discrimination. We answer this question in the negative and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant failed to designate a reporter's transcript of the trial; thus, our factual summary derives from the trial court's statement of decision.
Dona Loshonkohl, a veteran police officer with the City of San Diego Police Department (SDPD), was responsible for establishing good community relations as part of the SDPD's "Community Oriented Policing" program. Part of this program, called the "Problem Oriented Policy" (POP) program, focused on designing solutions to alleviate specific problems within a community.
James M. Kinder operates a car rental business, and several other businesses, from a location on India Street in San Diego. After a confrontation with Kinder on August 14, 1998, Loshonkohl obtained approval for a POP project to deal with problems near Kinder's businesses, including problems with abandoned vehicles, parking, creating a neighborhood eyesore and code violations. The POP project focused on Kinder's businesses and at least six other businesses in the area. During the course of the POP project, Kinder aggressively confronted Loshonkohl on a number of occasions and by the project's conclusion, officers impounded and towed a total of 41 vehicles, 16 of which belonged to Kinder.
Kinder filed 20 complaints with the SDPD regarding Loshonkohl's actions, which he stated were for the purpose of "revenge." The SDPD individually reviewed, evaluated and investigated 18 complaints; two were treated as "inquiries" because Kinder refused to respond to questions about the complaints. Except where Kinder refused to cooperate, the complaints were determined to be "unfounded," "not sustained" or Loshonkohl was "exonerated."
In September 1998, Loshonkohl filed a complaint against Kinder containing five separate causes of action for defamation under section 47.5. The trial court found section 47.5 constitutional on its face, and as applied, after considering the legislative history of section 47.5, the testimony of two SDPD sergeants and a number of exhibits containing statistical information regarding the number of unmeritorious citizen's complaints.
The trial court concluded that Kinder's "relentless challenge " damaged Loshonkohl's reputation within the SDPD and caused her "grave and serious emotional injury," including loss of self-confidence and depression. Based on a consideration of Loshonkohl's past performance, longevity in the police force, education and skills, the trial court concluded that, as a result of the fallacious complaints and the resulting emotional toll, Loshonkohl was denied career opportunities, including positions as a field training officer, a detective, and a police department recruiter. Based on these findings, the court entered judgment in Loshonkohl's favor in the amount of $350,000.
Kinder filed a notice of appeal from the judgment. About four months later, he filed a motion to set aside the judgment based on a recent appellate court decision declaring section 47.5 unconstitutional on its face as violative of the right to free speech. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432 (Walker). The trial court denied the motion, concluding it lacked jurisdiction to set aside the judgment. Assuming, arguendo, that it had jurisdiction to change the judgment, the trial court found that the facts in Walker were distinguishable and concluded that the Walker cou
Page 1 2 3 4 5 California Classifieds
Classified Postings
|
| |
to fill out a simple form to connect to Classified Postings in your area.
|
|