Opinion
A100854.
7-9-2003
JOSEPH LEONARD NEUFELD, Plaintiff and Appellant, v. SYLVIA K. SHAPIRO-PRITCHARD, Defendant and Respondent.
Joseph Leonard Neufeld (Neufeld) appeals from a judgment dismissing his complaint for false imprisonment and intentional infliction of emotional distress against Sylvia K. Shapiro-Pritchard, a commissioner of the Superior Court of California for the County of Marin (Shapiro-Pritchard). Both alleged causes of action were based upon the allegation that Shapiro-Pritchard maliciously, without probable cause, and in bad faith made a false report of suspected criminal activity to the police, causing Neufeld to be detained and searched.
Neufeld contends that the court erred by sustaining respondents demurrer on the ground that the absolute privilege of Civil Code section 47, subdivision (b) (hereafter section 47(b)) applied to the alleged conduct. We shall hold that the court properly sustained the demurrer, and shall affirm the judgment.
All subsequent statutory references are to the Civil Code unless otherwise indicated.
FACTS
The complaint alleged that Neufeld went to Shapiro— Pritchards home on March 8, 2001, at 6:30 a.m. in an attempt to serve process on her with respect to an unrelated action. Shapiro-Pritchard called the Petaluma Police Department without probable cause to believe that Neufeld had committed, or was about to commit, any public offense. The complaint further alleged that Shapiro-Pritchard made the false report "willfully, intentionally and, with malice aforethought," and in "bad faith," to retaliate for Neufelds conduct in her courtroom and for the conduct of a friend or associate of Neufelds named Peter Clark Dougherty.
When the police arrived they drew their guns, pointed them at Neufeld, and ordered him to the ground. The officers handcuffed, searched, and interrogated Neufeld. After determining that no crime had occurred, they released him.
The court sustained Shapiro-Pritchards demurrer to the complaint on the ground that the "absolute immunity" of section 47(b) "applies to this lawsuit regardless of [Shapiro-Pritchards] good faith." Neufeld did not file an amended pleading as permitted by California Rules of Court, rule 325(e) and Code of Civil Procedure section 472b. The court entered an order and judgment of dismissal, and Neufeld filed a timely notice of appeal.
ANALYSIS
"California law recognizes two types of privileged communications-communications which are absolutely privileged and communications which are qualifiedly or conditionally privileged. If absolutely privileged, there is no liability even if the defamatory communication is made with actual malice. If the privilege is only conditional or qualified, a finding of malice will prevent the communication from being found privileged." (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367.)
Both of these privileges are codified in section 47. Section 47(b) is an absolute privilege that precludes nearly every tort cause of action based on a statement protected by that privilege, including causes of action for false imprisonment and intentional infliction of emotional distress. Only a cause of action for malicious prosecution is excepted from the bar of this privilege. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216, 266 Cal. Rptr. 638, 786 P.2d 365 (Silberg); see also Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502, 1504 [false imprisonment]; Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal. Rptr. 143, 696 P.2d 637 [intentional infliction of emotional distress].) By its terms, section 47(b) applies to communications made in a "judicial proceeding [or] in any other official proceeding authorized by law . . . ." (See Silberg, supra, 50 Cal.3d at p. 212.) In Silberg, supra, the court interpreted section 47(b) to extend the privilege to "any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved." (Ibid.) This construction promotes the important public policy of insuring the efficacy of judicial proceedings "by encouraging `open channels of communication and the presentation of evidence . . . [and] `assures utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing. " (Id. at p. 213.)
Section 47, subdivision (c) codifies the common law "common interest" privilege. It is a qualified privilege that protects only "communications made in good faith on a subject in which the speaker and hearer shared an interest or duty." (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727, 257 Cal. Rptr. 708, 771 P.2d 406.)
The specific issue presented in this appeal is whether a false report to the police of suspected criminal activity is absolutely privileged pursuant to section 47(b), or subject only to the qualified privilege established by section 47, subdivision (c). Neufeld argues that the statements in this case are not absolutely privileged, and his allegations that respondents statements were not merely mistaken, but made maliciously, in bad faith, and without probable cause, precluded application of a qualified privilege.
The issue is also pending before the California Supreme Court in Balser v. Wells Fargo Bank, review granted December 19, 2001, S101833 and Mulder v. Pilot Air Freight, review granted May 15, 2002, S105483.
The only reported decision to hold that the absolute privilege of section 47(b) does not apply to statements of suspected criminal activity made to law enforcement officers was Fenelon v. Superior Court (1990) 223 Cal. App. 3d 1476, 273 Cal. Rptr. 367 (Fenelon). Recently, the same court that decided Fenelon reconsidered the question in light of the extensive criticism that other courts and commentators had directed at its prior decision. Division One of the Fourth Appellate District concluded that it "[could] no longer adhere to this courts prior view." (Navarette v. Holland (2003) 109 Cal.App.4th 13, 20 (Navarette).) The Navarette court explained: "In Fenelon, the majority found that a report to a police officer did not concern an `official proceeding within the meaning of the statute because the report was not quasi-judicial in nature. (Fenelon, supra, 223 Cal. App. 3d at pp. 1480-1483.) However, in Silberg, the California Supreme Court made clear that section 47, subdivision (b)s privilege applies to publications in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Silberg, supra, 50 Cal.3d at p. 212.) Moreover, the Supreme Court has noted that the statutory privilege ` protects communications to or from governmental officials which may precede the initiation of formal proceedings. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, 185 Cal. Rptr. 244, 649 P.2d 886, italics omitted.) [P] Under this high court authority, it is now well settled that section 47, subdivision (b) applies to statements made preliminary to, or in preparation for, either civil or criminal proceedings. [Citations.] Thus, the fact that a police report is not itself a judicial or quasi-judicial proceeding does not preclude the application of an absolute privilege." (Navarette, supra, 109 Cal.App.4th at p. 20.)
The court in Navarette, supra, also recognized that the policy reasons it had advanced in Fenelon, supra, 223 Cal. App. 3d 1476 for not applying an absolute privilege to statements or reports of suspected criminal activity made to law enforcement officers were not persuasive: "The Fenelon majority expressed concern that applying an absolute privilege for a persons false report to law enforcement would interfere with the rights of the person accused of wrongdoing because of the lack of judicial procedural safeguards when citizens make false statements to the police. (Fenelon, supra, 223 Cal. App. 3d at p. 1483.) However, because a report to the police is merely an initial step in a judicial proceeding, an accused will be adequately protected. . . ." (Navarette, supra, 109 Cal.App.4th at pp. 20-21.)
The Fourth Appellate Districts decision in Navarette, supra, effectively eliminates the split of authority created by Fenelon, supra, 223 Cal. App. 3d 1476, and brings the Fourth District in line with every other California court to address the issue. As the Navarette court acknowledged, "most California courts have held statements to law enforcement officers to report suspected wrongful activity are absolutely privileged under section 47, subdivision (b), even if the report is false and made in bad faith. (SeeBeroiz v. Wahl (2000) 84 Cal.App.4th 485, 494-496; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112; Cote v. Henderson (1990) 218 Cal. App. 3d 796, 806, 267 Cal. Rptr. 274; Hunsucker v. Sunnyvale Hilton Inn[, supra,] 23 Cal.App.4th [at pp.] 1502-1504; Williams v. Taylor (1982) 129 Cal. App. 3d 745, 753-754, 181 Cal. Rptr. 423 (Williams); accord, Johnson v. Symantec Corp. (1999) 58 F. Supp. 2d 1107, 1108-1113.)" (Navarette, supra, 109 Cal.App.4th 18-19.)
We agree with all of the foregoing courts that the absolute privilege of section 47(b) applies to statements or reports of suspected criminal activity to law enforcement officials. The application of the absolute privilege of section 47(b) "ensures citizens will be protected `from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing, and recognizes `the importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity. (Wise v. Thrifty Payless, Inc. [2000] 83 Cal.App.4th [1296,] 1303; see Williams, supra, 129 Cal. App. 3d at pp. 753-754.)" (Navarette, supra, 109 Cal.App.4th at p. 19.) These essential channels of communication "would quickly close" if citizens who used these channels to report suspected wrongdoing did so at risk of tort liability, and application of only a qualified privilege would be inadequate to secure open channels. (King v. Borges (1972) 28 Cal. App. 3d 27, 34, 104 Cal. Rptr. 414.)
Neufeld nevertheless contends that an exception to the application of section 47(b) exists that would require a person who makes a false report to have made the report in "good faith." Based upon this premise, he asserts the allegation of his complaint that Shapiro-Pritchard made the report in "bad faith," which he apparently defines as the absence of an honest, but mistaken, belief in the truth of the police report, defeats her claim of privilege. Neufeld relies upon dicta in Devis v. Bank of America (1998) 65 Cal.App.4th 1002 (Devis). In Devis, supra, the court agreed that " the weight of authority in this state is that reports made by citizens to police regarding potential criminal activity . . . fall within the section 47 privilege" and held the privilege applied to the statements at issue in the case before it. (Id. at p. 1007.) Yet, the court further observed, that "the privilege applies only if the erroneous report to the police is made in good faith." (Id. at p. 1008.) The court acknowledged that it was unnecessary to apply this purported exception to the absolute privilege, because there were no allegations in the case before it that the report was made in bad faith. (Ibid. )
Several courts have acknowledged the dicta in Devis, supra, 65 Cal.App.4th 1002, but reject it on the grounds that the Devis courts holding that the absolute privilege of section 47(b) applies to reports to the police cannot be reconciled with its dicta that the privilege would only apply to reports made in "good faith." (See, e.g.,Navarette , supra, 134 Cal.App.4th at p. 20, fn. 4; Beroiz v. Wahl, supra, 84 Cal.App.4th at p. 495, fn. 6; Johnson v. Symantec Corp., supra, 58 F. Supp. 2d at p. 1110, fn. 4 ["It is unclear how an absolute privilege with a `good faith exception differs at all from a qualified privilege"].) These criticisms of the dicta in Devis, supra, are persuasive. The courts have long recognized that the privilege set forth in section 47(b) is "absolute," which means that it applies without regard to the defendants "motives, his possible malice or his lack of belief in the truth of what he was saying." (Friedman v. Knecht (1967) 248 Cal. App. 2d 455, 462, 56 Cal. Rptr. 540.) The "good faith" exception Neufeld advocates undermines the justification for the absolute privilege "given by the Court of Appeal in Munster v. Lamb (1883) 11 Q.B.D. 588, 604, 607, wherein one judge said, `The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct. " (Friedman v. Knecht, supra, at p. 462.) In other words, to impose a "good faith" qualification upon the absolute privilege of section 47(b) would eliminate the benefit of its broad scope of protection by requiring both innocent and guilty alike to defend beyond a simple assertion of the basic facts essential to a claim of the absolute privilege. (Silberg, supra, 50 Cal.3d at p. 215 [to "effectuate its vital purposes, the litigation privilege is held to be absolute in nature"].)
Moreover, the authorities cited by the court in Devis, supra, 65 Cal.App.4th 1002, as support for the proposition that only a false report to the police made in "good faith" would be privileged pursuant to section 47(b), Turner v. Mellon (1953) 41 Cal.2d 45, 48, 257 P.2d 15 (Turner) and Du Lac v. Perma Trans Products, Inc. (1980) 103 Cal. App. 3d 937, 941, 163 Cal. Rptr. 335 (Du Lac), do not discuss the section 47 communication privileges. Instead, these decisions address only a narrow common law defense to a cause of action for false imprisonment that recognized that a person who, in good faith, reports activity to the police, leaving it to the officer to determine whether criminal activity has occurred and whether to make an arrest, cannot be found to have "authorized" or "actively participated" in the arrest, and therefore is not liable for false imprisonment based upon the actions of the police officer. Nowhere in either opinion do these courts even use the term "privilege." It is axiomatic that cases do not stand for a proposition not considered. (See, e.g.,People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66, 820 P.2d 613.) Also, as pointed out in Beroiz v. Wahl, supra, 84 Cal.App.4th at pages 495-496, footnote 6, both Turner, supra, and Du Lac, supra, predate Silberg, supra, 50 Cal.3d at page 216, "in which our Supreme Court indicated the broad scope of the absolute privilege . . . and thus they are not persuasive on the issue before us." (Beroiz v. Wahl, supra, at pp. 495-496, fn. 6.) For these same reasons, appellants reliance upon Du Lac, supra, at page 941, and other cases discussing the same defense, such as Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 880, 138 Cal. Rptr. 426, for the proposition that the section 47(b) privilege does not apply where the complaint alleges the report was made in "bad faith," is misplaced. The remaining authorities he relies upon are also inapposite because they do not concern the application and scope of the privilege set forth in section 47(b): In Washington v. Farlice (1991) 1 Cal.App.4th 766, the court merely reviewed the sufficiency of the evidence to support an award based upon false imprisonment, and there was no claim of privilege. In Harden v. San Francisco Bay Area Rapid Transit Dist. (1989) 215 Cal. App. 3d 7, 263 Cal. Rptr. 549 and McKay v. County of San Diego (1980) 111 Cal. App. 3d 251, 168 Cal. Rptr. 442, the court addressed only immunities under the Government Code for public employees, and again there was no assertion that provision of false information to procure an arrest warrant was privileged under section 47(b).
We conclude the court did not err in finding that the statements alleged in the complaint were absolutely privileged, and that the complaint therefore failed to state a cause of action for false imprisonment and intentional infliction of emotional distress.
CONCLUSION
The judgment is affirmed. Costs are awarded to respondent.
We concur: Marchiano, P.J., and Margulies, J.