# Fenelon v. Superior Court > California Court of Appeal · September 20, 1990 · 223 Cal. App. 3d 1476 URL: https://www.frixlaw.com/law-library/cases/9729516 ## Case - **Full name:** MICHAEL JOHN FENELON Et Al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; JOHN P. DUNBAR, JR., Real Party in Interest - **Court:** California Court of Appeal - **Decided:** September 20, 1990 - **Citations:** 223 Cal. App. 3d 1476; 273 Cal. Rptr. 367; 1990 Cal. App. LEXIS 999 - **Precedential status:** Published - **Opinion:** Concurrence by Benke - **Judges:** Wiener, Benke - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Hagberg v. California Federal Bank FSB, 7 Cal. Rptr. 3d 803 (2004). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729516 ## How later opinions describe it (automated extraction) - holding that reports of illegal activity to law enforcement agencies were covered by a quali fied privilege which would apply only if the communication were made "without malice” - finding a qualified privilege ## Opinion text BENKE, J. I dissent. With due respect, I cannot accept the analysis or the result reached by the majority. The majority leaves unmentioned a substantial line of California authority, the Restatement of Torts and leading commentary which are consistent with Williams (Williams v. Taylor (1982) 129 Cal.App.3d 745 [ 181 Cal.Rptr. 423 ]). In terms of policy the majority leaves angry parents who complain to principals, disgruntled employees who report to IRS agents, vengeful employers who speak to law enforcement agencies about former employees, and the forgers of building permits, with more protection than citizens reporting crimes to the police. In Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [ 786 P.2d 365 ], the Supreme Court reiterated the breadth of the privilege provided by Civil Code section 47, subdivision 2: “[I]t applies 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. [Citations.]” (Italics added.) In particular, in California the privilege applies to statements made preliminary to or in preparation for either civil or criminal proceedings. (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 393-394 [ 182 Cal.Rptr. 438 ] (Block); Brody v. Montalbano (1978) 87 Cal.App.3d 725, 733-734 [ 151 Cal.Rptr. 206 ] Izzi v. Relias (1980) 104 Cal.App.3d 254, 262 [ 163 Cal.Rptr. 689 ] (Izzi v. Rellas); Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 576 [ 131 Cal.Rptr. 592 ] (Lerette); Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489-490 [ 104 Cal.Rptr. 650 ] (Pettitt v. Levy); cf. Washer v. Bank of America (1943) 21 Cal.2d 822, 831-832 [ 136 P.2d 297 , 155 A.L.R. 1338 ].) Block, Izzi v. Relias, Lerette, Brody and Pettitt v. Levy are all consistent with the Restatement Second of Torts, section 587, which states: “A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.” (Italics added.) *1485 Under the foregoing cases and the Restatement, application of the privilege does not turn upon the official powers of the particular person to whom an offending communications has been made. To suggest, as the majority does, that the privilege applies only when a communication has been made to a quasi-judicial or quasi-legislative body ignores the fact that in Pettitt the privilege was applied to communications between alleged conspirators, that in Lerette the privilege was applied to a letter sent to a bank officer, that in Izzi v. Relias the recipient was a private attorney, and that in Block a district attorney received the information which caused the plaintiff’s damage. Rather than focusing on the powers of the person who receives a communication, the California cases and the Restatement require that we look to the aims of the communication. (See Herzog v. “A” Company, Inc. (1982) 138 Cal.App.3d 656, 661 [ 188 Cal.Rptr. 155 ].) If the communication is in anticipation of or designed to prompt official proceedings, the communication is protected. (Ibid., Pettitt v. Levy, supra, 28 Cal.App.3d at pp. 490-491; Rest.2d Torts, § 587.) Not only is the majority’s focus on the immediate recipient of a communication misplaced, its definition of “official proceedings” is unduly narrow. The majority relies upon Toker v. Pollack (1978) 44 N.Y.2d 211 [ 376 N.E.2d 163 , 168-169] (Toker), for the proposition that Civil Code section 47, subdivision 2, only protects communications to agencies whose actions are governed by requirements of notice, hearing and review. As the majority notes, in Toker the New York court held that communications made to an agency investigating an attorney’s qualification for judicial office were not absolutely privileged. The majority, however, fails to discuss O’Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1047-1048 [ 238 Cal.Rptr. 715 ]. In O’Shea the plaintiff had been discharged from his employment at a telephone company. He then applied to become a California Highway Patrolman. The highway patrol, as required by Government Code section 1031, subdivision (d), conducted a thorough background investigation. In the course of that investigation, the telephone company explained its version of the plaintiff’s termination to the highway patrol. Relying in part on Williams, the court held the telephone company’s statements to the highway patrol were absolutely privileged. “The CHP, a governmental entity [citations], was conducting this thorough background investigation regarding appellant’s fitness when the allegedly defamatory statements were obtained. Such inquiries and responses are protected by Civil Code section 47, subdivision 2. Even unsolicited communications from citizens to governmental agencies have been held protected by the absolute privilege of Civil Code section 47, subdivision 2. [Citations.] The rationale of those *1486 cases is obvious in the case before us; it is to encourage the utmost freedom of communication between citizens and public authorities. The Legislature has wisely required a thorough background investigation of the character of those who wish to be peace officers. It is essential that former employers of those considered for peace officer positions feel free to discuss in detail the characteristics of their former employees, now being considered for the extremely demanding tasks undertaken by the peace officers of this state.” (iO’Shea v. General Telephone Co., supra, 193 Cal.App.3d at p. 1048 .) In my view it is difficult to reconcile the result reached in O’Shea with the holding in Toker . More importantly, I believe O’Shea is a more accurate statement of California law. (See, e.g., Bledsoe v. Watson (1973) 30 Cal.App.3d 105, 108-109 [ 106 Cal.Rptr. 197 ]: letter to city treasurer demanding treasurer withhold payment to plaintiff not actionable as interference with contract.) I also note that although the majority implies the holding in Williams is aberrational, at least one commentator of substantial reputation suggests it represents the better view. “The immunity extends to every step in the proceeding until final disposition, although it does not cover publications made before commencement or after termination. Conversations preliminary to the proceeding have given some difficulty. Although there is some authority to the contrary, the better view seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity.” (Prosser and Keeton on Torts (5th ed. 1984) § 114, pp. 819-820, fns. omitted; see also Ducosin v. Mott (1982) 292 Or. 764 [ 642 P.2d 1168, 1169 ]: report to medical examiner about potential homicide absolutely privileged; Cushman v. Edgar (1980) 44 Or.App. 297 [ 605 P.2d 1210, 1212 ].) I do not believe any principled distinction can or should be made between a citizen who goes to the police department rather than the district attorney’s office with information about commission of a crime. In sum, I do not think any departure from the holding in Williams or from California authority is warranted. There is no legal or logical reason to deny citizens a channel of communication to law enforcement agencies which is unfettered by the fear of later civil litigation. Indeed, in the hierarchy of priorities, such communication warrants at least as much protection as other communiques which, while certainly important to the parties involved, do not involve the broader societal interest in reporting criminal *1487 activity. In this regard I note the underlying criminal investigation in this case is still open. The potential chilling effect on it and other even more sensitive cases is, to me, unacceptable. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729516. Public record. Not legal advice.