City of Long Beach v. Bozek

KAUS, J.

I dissent.

The majority acknowledges that the principal purposes underlying a malicious prosecution action — (1) deterring the filing of malicious and baseless lawsuits and (2) affording the victim of such a suit recovery for expenses incurred in defending the action — fully support the city’s right to bring such an action. Nonetheless, it rejects the city’s claim on the startling theory that the constitutional right of petition encompasses a right to sue a governmental entity maliciously and without probable cause with total impunity — i.e., that such a malicious and unfounded lawsuit is “absolutely privileged.” With all respect, the majority’s novel constitutional thesis is riddled with fundamental and fatal flaws.

First, and somewhat paradoxically, the majority’s constitutional analysis rests on an improperly narrow conception of the scope of the constitutional right of petition, implicitly assuming that while defendant Bozek’s initial lawsuit against the city represented an exercise of that right which must not be “chilled,” an ordinary lawsuit between two private parties is not similarly protected by the right of petition. (See ante, p. 534, fn. 5.) This distinction is necessary to the majority’s conclusion that the right of petition bars a malicious prosecution action by a governmental entity, but does not bar such an action by a private party.

The main problem with the suggested distinction, however, is that it is directly refuted by the very United States Supreme Court cases on which the majority relies to demonstrate that bringing a lawsuit — i.e., petitioning the judicial branch of government for redress of grievances —falls within the right of petition. (See, e.g., California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510 [ 30 L.Ed.2d 642, 646 , 92 S.Ct. 609 ]; United Transportation Union v. Michigan Bar (1971) 401 U.S. 576, 578-579 [ 28 L.Ed.2d 339, 342-343 , 91 S.Ct. 1076 ]; Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 222-223 [ 19 L.Ed.2d 426, 430-431 , 88 S.Ct. 353 ]; Railroad Trainmen v. Virginia Bar (1964) 377 U.S. 1 [ 12 L.Ed.2d 89 , 84 S.Ct. 1113 , 11 A.L.R.3d *540 1196 ]; NAACP v. Button (1963) 371 U.S. 415 [ 9 L.Ed.2d 405 , 83 S.Ct. 828 ].) With the exception of NAACP v. Button, the right of petition involved in all of these cases was the right of one private party to bring suit against another private party, in other words, these cases clearly hold that the right of petition encompasses the right of an individual to petition the government for redress of grievances against another private person, as well as the right to petition for redress of grievances against the government itself. (See, e.g., Mine Workers, supra, 389 U.S. 217, 223 [ 19 L.Ed.2d 426, 431 ]; Railroad Trainmen, supra, 377 U.S. 1, 5-7 [ 12 L.Ed.2d 89, 92-93 ].)

Once it is recognized that the right of petition embraces purely private lawsuits as well as actions against the government, it becomes apparent that the majority’s absolutist view of the right of petition obviously proves too much: if the simple fact that one has a constitutional right to bring a lawsuit immunizes an individual from tort liability for maliciously abusing that right, then all malicious prosecution actions would be unconstitutional, not only those actions brought by a governmental entity. Of course, decisions of both the United States Supreme Court and our own court have uniformly upheld the validity of traditional, common law malicious prosecution actions, recognizing that the “[p]olicy of encouraging free access to the courts ... is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied. [Citations.]” (Albertson v. Raboff (1956) 46 Cal.2d 375, 382 [ 295 P.2d 405 ]; see, e.g., Wheeler v. Nesbitt (1860) 65 U.S. (24 How.) 544, 549-551 [ 16 L.Ed. 765, 768-769 ]; Stewart v. Sonneborn (1879) 98 U.S. 187, 192 [ 25 L.Ed. 116, 118 ].) These cases belie the majority’s absolutist approach.

Furthermore, even if we confine our view to grievances or claims pursued by a private individual against the government itself, it remains clear that the majority’s sweeping constitutional pronouncement — “the bringing of suits against the government is absolutely privileged” (ante, p. 538) — simply bears no relation to reality. If the majority’s thesis were sound — and if, as the majority suggests, Bozek’s initial lawsuit against the city were truly analogous to libelous speech criticizing the government (see ante, pp. 534-536) — it would necessarily follow that an individual who has knowingly filed a false claim against the government could not constitutionally be subjected to any penalty or required to bear any monetary burden for the harm he has caused.

*541 That, however, is not now and never has been the case. For more than a century, Penal Code section 72 has imposed a criminal sanction of up to five years imprisonment and a $10,000 fine on any individual who, with intent to defraud, presents a false or fraudulent claim to a state or local official. 1 In similar fashion, numerous other statutes at both the state and federal level provide comparable criminal penalties for false or fraudulent representations made to a public entity in connection with monetary claims. (See, e.g., Welf. & Inst. Code, § 11483; 18 U.S.C. §§ 286-289 .) The prospect of a multiyear prison term obviously has a greater chilling effect on the filing of a claim or lawsuit than the availability of a malicious prosecution action, yet the majority cites no case, and I have found none, which intimates that the imposition of even such serious criminal sanctions on individuals who abuse the right of petition by filing false claims runs afoul of constitutional strictures. These penal statutes totally refute the majority’s suggestion that filing a false claim for damages from the government is constitutionally equivalent to delivering a false speech against the government. 2

Although the city’s complaint in this case does allege, inter alla, that Bozek “knew that the allegations contained in [his] complaint were false,” the city is not, of course, asking that Bozek be locked up for several years. Instead, it is only seeking to recover the cost of attorney fees which it incurred in defending Bozek’s allegedly malicious lawsuit, a traditional element of damages in a malicious prosecution action. (See Eastin v. Bank of Stockton (1884) 66 Cal. 123, 126-127 [ 4 P. 1106 ].) I must confess that I find it difficult to understand how the majority can conclude that it would be unconstitutional to permit the city to recover such attorney fees in this setting, particularly in light of the long line of United States Supreme Court decisions which have recognized that although under the “American Rule” attorney fees are not normally recoverable as an element of costs unless statutorily authorized, such fees may be awarded — even in the absence of statute — against a party who is found to have litigated “in bad faith, vexatiously, wantonly, or for oppressive reasons,...” (F. D. Rich Co. v. Industrial Lumber Co. (1974) 417 U.S. 116, 129 [ 40 L.Ed.2d 703, 713 , 94 S.Ct. 2157 ]; see, e.g., Roadway Express, Inc. v. Piper (1980) 447 U.S. 752, 765-766 [ 65 *542 L.Ed.2d 488, 500-501 , 100 S.Ct. 2455 ]; Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 258-259 [ 44 L.Ed.2d 141, 153-154 , 95 S.Ct. 1612 ].) 3 Numerous federal cases have indicated that under this “bad faith” doctrine government defendants may recover attorney fees against private parties who have maliciously pursued civil actions against them. (See, e.g., Gage v. Wexler (N.D.Cal. 1979) 82 F.R.D. 717, 719-720 ; Abney v. Ward (S.D.N.Y. 1977) 440 F.Supp. 1129, 1131-1132 ; Blackburn v. City of Columbus, Ohio (S.D.Ohio 1973) 60 F.R.D. 197, 198-199 ; cf. Acevedo v. Immigration and Naturalization Service (2d Cir. 1976) 538 F.2d 918, 920-921 .) The majority’s constitutional conclusion flies in the face of these authorities. 4

Indeed, the majority opinion itself — through an apparently unrecognized inconsistency — in effect acknowledges the weakness of its own logic. If the majority’s “absolute privilege” analysis were valid, any statute which expressly purports to authorize a government defendant to obtain attorney fees from a plaintiff who has sued it — even maliciously and without probable cause — would obviously be unconstitutional. As the majority is aware, only last year the California Legislature passed just such a statute — section 1021.7 of the Code of Civil Procedure —permitting a court to award attorney fees to a defendant public entity “[i]n any action for damages arising out of the performance of a peace officer’s duties ... upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause.” (Stats. *543 1981, ch. 980, § l.) 5 Rather than adhere to its basic constitutional approach and strike down section 1021.7, the majority inexplicably embraces the statute, claiming that it somehow supports its conclusion! While I, of course, believe that the new statute is constitutional, I cannot understand how the majority can square its approval of the statute with the principal holding of its opinion. 6

One thing seems clear from the enactment in 1981 of both section 1021.7 and section 128.5, the more general “bad faith” attorney fee provision noted above (see fn. 3, ante): at this time, the Legislature obviously sees the malicious filing and maintenance of unfounded lawsuits as a serious problem for the administration of justice in California, a problem which extends to malicious suits against public entities as well as to actions against private parties. Nothing in either of the new statutes, of course, purports to eliminate the preexisting common law remedy against baseless litigation afforded by the malicious prosecution tort; the Legislature has simply supplemented that traditional remedy with a more efficient method of assessing attorney fees in the initial maliciously prosecuted action itself. (See generally Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis (1979) 88 Yale L.J. 1218 , 1237; Note, Liability for Proceeding With Unfounded Litigation (1980) 33 Vand.L.Rev. 743, 771-773.) Although the new legislation may well help to minimize the adverse effect of this misconceived decision in the future, the majority cannot legitimately claim that it is effectuating the Legislature’s will by denying the city the right to pursue a traditional malicious prosecution action in this case.

*544 Because I can find no | justification — constitutional or otherwise — for rejecting the city’s action, I would reverse the judgment.

Richardson, J., concurred.

n 1976, the maximum penalty for violation of section 72 was reduced to one year.

Like the majority opinion, the case of Board of Ed. of Miami Trace Local Sch. Dist. v. Marting (1966) 7 Ohio Misc. 64 [36 Ohio Ops.2d 134, 217 N.E.2d 712, 717 ], rests in part on this erroneous analogy between a malicious lawsuit against the government and a libelous speech against the government.

In 1981, the California Legislature essentially codified the “bad faith” doctrine in section 128.5 of the Code of Civil Procedure. (Stats. 1981, ch. 762, § 1.) Section 128.5 provides in relevant part: “Every trial court shall have the power to order a party or the party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of tactics or actions not based on good faith which are frivolous or which cause unnecessary delay. Frivolous actions or delaying tactics include, but are not limited to, making or opposing motions without good faith.”

In fact, the relevant decisions demonstrate that even in the absence of bad faith, there is nothing unconstitutional in requiring a losing plaintiff to pay attorney fees to a prevailing government defendant under a generally applicable attorney fee statute. (See, e.g., Gage v. Wexler, supra, 82 F.R.D. 717, 718-719 (applying standard enunciated in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421-422 [ 54 L.Ed.2d 648, 656-657 , 98 S.Ct. 694 ]); Anthony v. Marion County General Hospital (5th Cir. 1980) 617 F.2d 1164, 1169-1170 ; Lujan v. State of N.M. Health & Soc. Serv. (10th Cir. 1980) 624 F.2d 968, 970 ; Lopez v. Aransas Cty. Independent Sch. Dist. (5th Cir. 1978) 570 F.2d 541, 545 .) The majority’s “absolute privilege” analysis, of course, is not only totally inconsistent with these precedents, but in addition would logically preclude a court from even awarding ordinary costs against an unsuccessful plaintiff in any lawsuit against a public entity. The majority cites no constitutional authority which even remotely supports such a result.

Section 1021.7 provides in relevant part: “In any action for damages arising out of the performance of a peace officer’s duties, brought against a peace officer ... or against a public entity employing a peace officer ... the court may, in its discretion, award reasonable attorney’s fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause.”

The majority attempts to distinguish section 1021.7 from a malicious prosecution action by suggesting that a malicious prosecution action places more of a burden on the original plaintiff than the new statute because it may require him to hire another attorney to defend the second action. By the same token, however, a separate malicious prosecution action is also a less expeditious and more expensive route for an aggrieved defendant to pursue, and it seems quite likely that the Legislature enacted the new provision for the very purpose of making it easier to obtain attorney fees against a malicious plaintiff by permitting recovery in the initial action. Thus, if the threat of additional attorney fee expenses impermissibly chills the right of petition, as the majority maintains, section 1021.7 would appear at least as vulnerable to constitutional chair lenge as the malicious prosecution action under consideration here.