Hagberg v. California Federal Bank FSB

*377 BROWN, J., Dissenting.

I respectfully dissent. Nothing in the statutory language of Civil Code section 47, subdivision (b) (section 47(b)) 1 supports the conclusion that reports of suspected criminal activity are absolutely privileged. Rather, consideration of the common law in California and the great weight of authority in our sister states, the Legislature’s treatment of reports to police in other statutory schemes, its criminalization of false reports, and sound public policy all demonstrate that reports of suspected criminal activity are only qualifiedly privileged.

Section 47(b) was enacted in 1872, and its relevant language has existed since an 1873-1874 amendment. Not until 1982, however, was it ever applied to reports to police. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754 [ 181 Cal.Rptr. 423 ] (Williams).) For more than a century prior to Williams , the citizens of California reported crimes to police, and there is no evidence they were hesitant to do so because of the common law rule that such reports were subject to only a qualified privilege. (Turner v. Mellon (1953) 41 Cal.2d 45, 48 [ 257 P.2d 15 ] (Turner) [“citizens who have been criminally wronged may, without fear of civil reprisal for an honest mistake, report to the police . . . the facts of the crime and in good faith” identify the perpetrator]; Hughes v. Oreb (1951) 36 Cal.2d 854, 858-859 [ 228 P.2d 550 ] (Hughes) [a person is not liable for false imprisonment “if, acting in good faith, he merely gives information to the authorities”]; Miller v. Fano (1901) 134 Cal. 103, 107 [ 66 P. 183 ] (Miller) [“it would be a hard and unjust law that would hold a party responsible in damages for false imprisonment for an honest mistake as to the identity of a party”]; Du Lac v. Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 942 [ 163 Cal.Rptr. 335 ] [defendant may be liable for false imprisonment when he knowingly gives the police false or materially incomplete information of a nature that could be expected to stimulate an arrest].)

*378 Indeed, plaintiff asserts, and the majority does not dispute, that the overwhelming weight of authority in the rest of the country is that a qualified, not absolute, privilege applies to reports to police. While the majority dismisses this authority on the ground that cases from our sister states do not discuss statutes with language similar to that of section 47(b), the majority does not in fact rely on the language of section 47(b) in reaching its conclusion regarding the scope of immunity for reports to police. Rather, it relies primarily on case law interpreting section 47(b), which in turn relies solely on the public policy consideration that citizens need open channels of communication with the police.

Typically when construing a statute, we seek to determine the Legislature’s intent. Here, the majority virtually ignores its obligation to interpret the statute. Rather, it relies on the “slim reed” of legislative inaction (Quinn v. State of California (1975) 15 Cal.3d 162, 175 [ 124 Cal.Rptr. 1 , 539 P.2d 761 ]) to justify its policy preference, noting that while the Legislature has amended section 47 in other respects following Williams , it has not abrogated that decision. 2 (Maj. opn., ante, at p. 369.) That inaction tells us nothing useful, however, since Fenelon v. Superior Court, supra, 223 Cal.App.3d 1476 , which disagreed with Williams , has also existed for 13 years without any legislative response. Moreover, while the relevant language of section 47(b) has existed since 1874, thus predating this court’s decisions in Turner, supra, 41 Cal.2d 45 , Hughes, supra, 36 Cal.2d 854 , and Miller, supra, 134 Cal. 103 , which the majority construes as inconsistent with section 47(b) , the section has never, in all of those decades, been amended to respond to these cases.

By failing to examine legislative intent, the majority overlooks the critical fact that the Legislature has already restricted the open channels of communication so central to the majority’s position. In other words, however much courts may desire on public policy grounds that all reports to police be absolutely immunized, the fact of the matter is they are not. Rather, in at least three circumstances that arise with everyday frequency, the Legislature has determined that reports to police must be made in good faith in order to receive immunity.

*379 For example, Penal Code section 11172, subdivision (a) (section 11172(a)), enacted in 1980, bars civil and criminal liability of statutorily mandated reporters of child abuse or neglect under the Child Abuse and Neglect Reporting Act. However, section 11172(a) contemplates such liability for any other person making such a report if “it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.” Welfare and Institutions Code section 15634, subdivision (a) (section 15634(a)), enacted in 1985, or several years after Williams , contains a similar provision for reports of elder or dependent-adult abuse. The purpose of both of these sections is to increase reporting of child, elder, and dependent-adult abuse, crimes that depend on secrecy and the helplessness of their victims for their commission. Yet even under these circumstances, the Legislature has deemed it appropriate to preserve only a qualified privilege for nonmandated reports. It seems unlikely the Legislature would accord only a qualified privilege for those individuals who may be the only voice for reporting crimes against the most vulnerable of victims, but grant absolute immunity to those unsympathetic individuals who falsely report other types of crimes.

Moreover, we are compelled to read the statutes as a whole, and Penal Code section 11172(a) and Welfare and Institutions Code section 15634(a) undertake to provide absolute civil immunity for reports to police by mandated reporters. If Civil Code section 47(b) already provided absolute civil immunity for mandated reporters of these suspected crimes, there would be no reason for the Legislature to accord them such protection in Penal Code section 11172(a) and Welfare and Institutions Code section 15634(a). We do not assume the Legislature engages in idle or superfluous acts. (In re J.W. (2002) 29 Cal.4th 200 , 210 [ 126 Cal.Rptr.2d 897 , 57 P.3d 363 ].)

In addition, in several other instances when the Legislature has been dissatisfied with case law interpretation of. section 47(b), it has amended section 47(b) to create exceptions to its absolute immunity. Thus, for example, section 47(b) contains exceptions for “any communication made in furtherance of an act” of spoliation of evidence and “any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy.” (§ 47(b)(2), (3).) It therefore seems likely that if section 47(b) were intended to give absolute immunity for reports to police, the Legislature would have simply amended Civil Code section 47(b) to provide that false reports of child, elder, or dependent-adult abuse by nonmandated reporters receive only qualified immunity, rather than creating an absolute immunity for mandated reporters and a qualified immunity for nonmandated reporters in Penal Code section 11172(a) and Welfare and Institutions Code section 15634(a).

*380 The majority relies on the public policy of “open channels” of communication between citizens and police to support its interpretation that section 47(b) grants absolute immunity to reports of suspected criminal activity to the police. (Maj. opn., ante, at p. 372.) However, the majority’s rule means that some reports to police are subject to a qualified privilege while others, after today, are entitled to an absolute privilege. Therefore if the average citizen believed a report to the police was always absolutely privileged, that belief would be incorrect. It is not clear how such an unpredictable standard encourages such reports or fosters open channels of communication.

Penal Code section 11172(a) and Welfare and Institutions Code section 15634(a) are not the only statutes of their kind. Subdivisions (a) and (b) of Education Code section 48902 require the principal of a school, or the principal’s designee, in connection with suspending or expelling a student, to notify law enforcement of any acts of the pupil that may constitute certain criminal activity. Subdivision (d) of Education Code section 48902 provides, “A principal, the principal’s designee, or any other person reporting a known or suspected act described in subdivision (a) or (b) is not civilly or criminally liable as a result of making any report authorized by this article unless it can be proven that a false report was made and that the person knew the report was false or the report was made with reckless disregard for the truth or falsity of the report.”

Under the majority’s interpretation, a principal, a principal’s designee, or any other person reporting the alleged commission of a crime delineated in Education Code section 48902 receives only a qualified immunity, but if any other type of crime is reported, absolute immunity is now conferred. I am unwilling to accept that the Legislature intended such arbitrary treatment of a school official’s or other person’s actions.

The language of Education Code section 48902, subdivision (d), was added in 1988, or long after Williams, supra, 129 Cal.App.3d 745 . While it is conceivable the Legislature wanted to create an exception from any absolute immunity under Civil Code section 47(b) for a school official’s or other person’s reports to the police that were intentionally or recklessly false, it is more reasonable to conclude the Legislature was either creating immunity where none existed before or modifying an existing qualified privilege to address recklessness. Moreover, unlike Penal Code section 11172(a) , which the majority dismisses as a part of a comprehensive statutory scheme, Education Code section 48902 stands alone. (Maj. opn., ante, at pp. 370-372, fn. 6.) As more and more such statutes appear, the claim that Civil Code section 47(b) confers absolute immunity for reports to police becomes even more suspect. Why would the Legislature continue to create separate statutory schemes to address immunity for reports to police if a comprehensive scheme has existed since 1874?

*381 Nor, contrary to the majority’s assertion, does Civil Code section 47.5 “unquestionably support[] the conclusion that the privilege established by section 47(b) applies, in general, to a ‘communication to an official agency which is designed to prompt action’ . . . including a communication to the police that is intended to trigger an investigation into possible criminal activity.” (Maj. opn., ante, at p. 370, fn. omitted.) Section 47.5 addresses complaints against, not to, a peace officer that are filed with the peace officer’s employing agency. Such a complaint inevitably invokes an administrative process according the officer notice, due process, and other attendant protections not present for the average citizen when a report of the citizen’s suspected criminal activity is made to police.

Moreover, in concluding section 47(b) contains an absolute privilege for reports to police, the majority omits mention of several significant limitations on that privilege. Thus, while section 47(b) “bars certain tort causes of action which are predicated on a judicial statement or publication itself, the section does not create an evidentiary privilege for such statements. Accordingly, when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [ 232 Cal.Rptr. 567 , 728 P.2d 1202 ] [section 47(b) “would not preclude [plaintiff] from making evidentiary use of defendants’ statements during negotiations to prove the intent with which defendants’ conduct was undertaken”].) In addition, “republications to nonparticipants in the action are generally not privileged under section 47(2) [now section 47(b)], and are thus actionable unless privileged on some other basis.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 219 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ] (Silberg).) Finally, as the majority does note in passing, section 47(b) applies only to communications, not conduct. (Maj. opn., ante, at p. 374; Kimmel v. Goland (1990) 51 Cal.3d 202, 205, 212 [ 271 Cal.Rptr. 191 , 793 P.2d 524 ] [act of illegally taping telephone conversation not covered by section 47(b)].)

In addition, Penal Code section 148.5 makes it a misdemeanor to knowingly give a false report of a crime to a peace officer, and Penal Code section 118.1 makes it a crime for a peace officer to knowingly and intentionally make a false statement regarding a material matter in a report. Thus, unlike most of the prelitigation communications to which the absolute immunity of Civil Code section 47(b) has been extended, false reports to police constitute a crime. The ramifications for a false investigation and arrest can be enormous, and the Legislature clearly abhors such false reports.

*382 In response, the majority notes that perjury is also criminally sanctioned, but because it acts as a deterrent to injurious publications during litigation, the existence of the perjury sanction supported this court’s expansive interpretation of section 47(b) in Silberg . (Maj. opn., ante, at p. 372, citing Silberg 50 Cal.3d at pp. 218-219.) However, when perjury occurs during a trial, the victim of that perjury enjoys many attendant protections, such as testimony under oath, vigorous cross-examination informed by pretrial discovery, and rebuttal witnesses, that are not present with the filing of a police report.

The majority asserts that statements reporting suspected criminal activity to police “can be the basis for tort liability ... if the plaintiff can establish the elements of the tort of malicious prosecution.” (Maj. opn., ante, at p. 355.) Of course, this is of no assistance to plaintiffs against whom charges are never brought, as in this case, and may be of little assistance when charges are dropped before trial, as in the companion case of Mulder. (Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384, 386 [ 7 Cal.Rptr.3d 828,81 ,P.3d 264], [the plaintiff alleged the defendants acted with malice in supplying information to police, leading to his arrest and numerous court appearances prior to dismissal of charges].) That is because dismissal of criminal charges does not, by itself, constitute a favorable termination for the purpose of establishing malicious prosecution. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§421, 422, pp. 505-507; see Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1854-1856 [ 43 Cal.Rptr.2d 323 ].) Rather, malicious prosecution generally requires the victim of the false accusation to establish that the accusation resulted in a criminal proceeding that was terminated in his favor) i.e., in a manner inconsistent with the accused’s guilt. (5 Witkin, supra, Torts, §§ 421, 422, pp. 505-507.) Moreover, the majority states that making false imprisonment an “exception” to the absolute privilege under section 47(b) would mean that “proof of a termination in plaintiff’s favor would not be required,” as it is in a malicious prosecution action. (Maj. opn., ante, at p. 375.) At least one case has stated, however, that “[f]alse imprisonment and malicious prosecution are mutually inconsistent torts.” (Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1422 [ 249 Cal.Rptr. 568 ].)

The ramifications of an intentionally false report of suspected criminal activity to police are enormous. Citizens arrested pursuant to such a report will be stigmatized, and forever thereafter have to note the arrest on job, credit, and housing applications. Assertions that the charges were dropped, and of one’s actual innocence, will likely fall on deaf ears. Under the majority’s conclusion today, such falsely accused individuals will have no opportunity to clear their name, or seek compensation for economic loss in defending the charges or loss to their reputation. In the absence of clear support from either the language or the history of section 47(b), this court should not approve absolute civil protection for such destructive and criminal *383 communications conduct. Rather, it should conclude reports to police are subject to a qualified privilege under either section 47, subdivision (c), or extant common law.

The Legislature has not hesitated to amend section 47(b) when courts have misinterpreted its provisions. I urge the Legislature to do so here.

Baxter, J., and Werdegar, J., concurred.

Section 47(b) and subdivision (c) provide, “A privileged publication or broadcast is one made: H] . . . [f] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except. . . [][] (1) [in inapplicable situations involving certain marital dissolution or legal separation proceeding allegations] . . . . [][] (2) . . . any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, . . . ffl (3) . . . any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy, . . . HQ (4) . . . [or a] recorded lis pendens [which] identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property .... HO (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (§ 47, subds. (b)(l)-(4), (c).)

The majority further states that this court “cited Williams with approval in” Slaughter v. Friedman (1982) 32 Cal.3d 149, 156 [ 185 Cal.Rptr. 244 , 649 R2d 886]. (Maj. opn., ante, at p. 365.) It fails to mention, however, that a short time after the decision in Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476 [ 273 Cal.Rptr. 367 ], we acknowledged the conflict between Fenelon and Williams but “expressed] no opinion on the merits of the controversy.” (Lubetzky v. State Bar (1991) 54 Cal.3d 308, 317, fn. 7 [ 285 Cal.Rptr. 268 , 815 P.2d 341 ].) By acknowledging that a controversy existed, we undermined any suggestion that our citation to Williams, supra, 129 Cal.App.3d 745 , in Slaughter, supra, 32 Cal.3d at page 156 , constituted a blanket approval of that opinion.