Lead Opinion
Opinion
I.
Introduction
Appellant, Mathew Abraham, hereafter Abraham, appeals from an order of dismissal following the sustaining of respondents’ demurrer without leave to amend. Abraham’s action in the superior court emanates from allegations made about him by the respondents in a lawsuit in the United States District Court. We conclude that the allegations complained of are protect
II.
Procedural and Factual Synopsis
A. The Underlying Federal Action
1. Original Complaint in Federal Court.
On February 3, 1987, Lancaster Community Hospital, hereafter LCH, filed a complaint in the United States District Court for the Central District of California. Damages, as well as declaratory and injunctive relief were sought based upon causes of action on the following legal theories: antitrust violations, interference with contractual relationships, and interference with prospective economic advantage.
2. Proposed First Amended Complaint in Federal Court.
LCH subsequently moved for leave to amend its complaint in the United States District Court in November of 1987. LCH’s proposed first amended complaint in the federal action sought damages and injunctive relief arising from alleged violations of California and United States antitrust laws, the Racketeer Influenced and Corrupt Organizations Act (RICO), and the common law. Named defendants included Abraham; the Antelope Valley Hospital District, hereafter AVHD; Antelope Valley Medical Group, Inc., hereafter Medical Group; John H. Lynn; Antelope Valley Health Ventures; Antelope Valley Dialysis Center; and Blue Cross of California. Maxicare Health Plan (hereafter Maxicare) and Sierra Primary Care Associates, another respondent in this appeal, were mentioned in the body of the proposed first amended complaint as coconspirators.
It is alleged that Abraham’s responsibilities as assistant administrator of Antelope include oversight of the hospital’s contracting with alternate delivery systems and third party payors. “Abraham is also responsible for overseeing [Antelope’s] relationships with defendants [Medical Group] and Antelope Valley Dialysis Center, and for overseeing the activities of defendant Antelope Valley Health Ventures.”
Antelope is alleged to be the only hospital in a certain area providing perinatal services, but is one of four hospitals, including LCH, providing inpatient medical/surgical services.
It is alleged that “Abraham and [Antelope] have exploited [Antelope’s] market power and monopoly power over perinatal services to coerce private payors to purchase inpatient medical/surgical services from [Antelope] and to inflict competitive injury upon [LCH].”
According to LCH’s proposed first amended complaint, during the year 1985, Abraham, Antelope, and AVHD caused the Medical Group to be organized and to affiliate with Antelope and no other hospital.
Similarly, Abraham, AVHD and Antelope were alleged to have exerted pressure on Blue Cross to divert its enrollees from LCH to Antelope; as a result, Blue Cross terminated its agreement with LCH and entered into an exclusive contract with Antelope. The defendants are further alleged to have insisted other private payors wishing to use Antelope’s perinatal
The proposed LCH complaint alleged Antelope has thus been able to pressure others to use its medical/surgical services over those of LCH even though Antelope’s charges for perinatal service “are now and have been substantially above levels charged for such services in markets where competition exists.” When questioned about recent increased charges, Mr. Abraham allegedly responded “that the rate is ‘not negotiable’ and that ‘if you don’t like the rates, take your babies by helicopter somewhere else.’ ” Other alleged statements by Abraham further demonstrate Antelope’s “predatory, anticompetitive and monopolistic intent”: “‘You have to deal with me to practice [medicine] here’ “ T will bring Maxicare to their knees just like I brought Kaiser [Kaiser Permanente—another health maintenance organization] to their knees’ “ T control health care in the [Antelope] Valley’ and “ ‘If you don’t want to use Antelope Valley’s [perinatal services], drop a few babies along the freeway—like Kaiser—and see what that does to your reputation.’ ”
The proposed LCH complaint alleged further that Antelope has attempted to acquire LCH and Palmdale Community Hospital, “the only hospitals in the relevant geographic market which pose substantial competition to [Antelope] in the market for inpatient medical/surgical services for private pay patients.” The complaint alleged AVHD and Abraham used a pattern of fraudulent schemes, including misappropriation of public funds, violations of federal and state antikickback statutes, and violations of state law prohibiting the making of false entries in the records of a corporation, as a part of establishing relationships with organized medical groups.
The proposed LCH complaint also alleged the above acts and practices have injured competition and that LCH has been placed at a substantial competitive disadvantage. The prayer requested (1) defendants be adjudged to have violated the relevant statutes and to have committed the alleged torts; (2) treble damages be assessed for violations of the Sherman Act, the Cartwright Act, and RICO; (3) AVHD be enjoined from owning or operating any health care facilities or financing organization except Antelope for a period of 10 years; (4) the Medical Group be required to repay to AVHD all public monies and the value of all goods and services unlawfully granted or transferred by AVHD and Antelope; (5) the Medical Group be required to be dissolved; and (6) “AVHD terminate the employment of [Abraham] and all other AVHD employees who participated in the unlawful conduct
Attached to Abraham’s complaint in this state court action is a letter dated February 22, 1988, from Abraham’s counsel, Richard P. Sybert of Sheppard, Mullin, Richter & Hampton, to trial counsel for LCH in the federal lawsuit, Mr. Robert Fabrikant of McKenna, Conner & Cuneo. Mr. Sybert wrote “to state in the strongest possible terms that I see no grounds for naming [Abraham] as a defendant, and that I believe to do so would constitute a clear abuse of the legal process.” Mr. Sybert found no evidence his client was “acting other than in his capacity as an employee and agent of Antelope Valley Hospital.”
In addition, in disparaging LCH’s complaint, Mr. Sybert asserted LCH’s principal problem was that it “may be facing effective competition.” Sybert also asserted that LCH is “improperly using litigation to further anti-competitive business ends.” Sybert wrote LCH that “we are investigating the possibility of bringing claims for, inter alia, abuse of process and malicious prosecution. Although I do not mean to exclude this possibility even if the complaint is not amended, this investigation obviously will intensify if, in fact, amended claims are brought against Mr. Abraham personally.”
The concluding paragraph urged LCH to reconsider, whether or not the federal court granted leave to file the proposed first amended complaint, to dismiss Abraham voluntarily as a defendant.
Attached to Abraham’s complaint as exhibit D in this state court action is a letter dated February 22, 1988, from Mr. Fabrikant to Mr. Sybert. There is no indication Mr. Fabrikant had received Mr. Sybert’s letter of the same date or that Mr. Fabrikant was responding to it.
Mr. Fabrikant thanked Mr. Sybert for a letter of January 26 and agreed the litigation is primarily a fight between corporate entities. Nevertheless, regarding Abraham, Mr. Fabrikant stated: “His deposition testimony reveals significant and ongoing involvement in the conduct underlying the First Amended Complaint. If Mr. Abraham is prepared to terminate his employment within the Antelope Valley, we would seriously consider dropping him from this litigation.”
C. Order Permitting Amendment to Complaint in Federal Court
In an order filed March 4, 1988, the federal district court granted LCH’s motion for leave to add several new parties as defendants (including Abraham) and adding additional causes of action. The order states in part:
“Plaintiff may amend its complaint to add the new defendants .... Plaintiff has fifteen days from the date of this order to file its amended pleading.”
The revised amended complaint, attached to Abraham’s complaint in this state court action as exhibit E, contains virtually the same allegations as LCH’s proposed first amended complaint. However, Abraham is not named as a defendant; and the prayer no longer asks for AVHD to terminate his employment. Nevertheless, Abraham was named as a coconspirator in the body of the complaint and virtually all the allegations regarding his conduct remained.
After the revised amended complaint was filed, Abraham asked to intervene in the federal lawsuit for purposes of asserting the causes of action alleged in the complaint now before this court. The district court denied Abraham’s motion to intervene.
D. Abraham’s Superior Court Complaint
On May 20, 1988, Abraham filed the instant lawsuit, attempting to allege causes of action for defamation, abuse of process, intentional interference with contractual relations, intentional interference with prospective economic advantage, conspiracy to intentionally interfere with contractual relations and prospective economic advantage, and intentional infliction of emotional distress. He named as defendants LCH; Paracelsus Healthcare Corporation, alleged to be LCH’s parent corporation; and Sierra. All of the allegations in Abraham’s complaint originate with LCH’s involvement in the federal lawsuit described above.
Abraham alleges that LCH did not name him as a defendant in its original federal complaint, but did name him as a defendant in its proposed first amended complaint, in which he was accused of “a wide variety of unlawful and criminal acts . . . including kickbacks, misappropriation of public funds, and corruption.” The relief sought by LCH included termination of Abraham’s employment.
Abraham’s complaint next alleges that before the federal court ruled on the motion of LCH for leave to file its proposed amended federal complaint, LCH allegedly “caused its allegations to be published in the local press.” A copy of the articles, which appeared on Christmas Day in the Antelope Valley Press, were attached to Abraham’s complaint. The articles in the Antelope Valley Press reported the pending motion for leave to file the amended complaint and the allegations made in the proposed amended complaint. Abraham further alleges on information and belief that defendants or their agents also “caused such allegations and charges against
The Abraham complaint also contains allegations that, based on the individual allegations against Abraham in the press and in the proposed amended complaint, Antelope secured independent counsel for him. Independent counsel allegedly reviewed the case and decided Abraham was at all times acting within the scope of his employment at the express direction of his employer, evidence allegedly known by and available to LCH before LCH made “its new allegations against Abraham in its proposed Amended Federal Complaint and caused those allegations to be published in the Antelope Valley Press. ”
Abraham’s independent counsel then contacted LCH’s counsel, explaining the factual deficiencies of the complaint. Abraham’s complaint contains allegations that counsel for LCH offered to drop Abraham from the lawsuit if Abraham was prepared to terminate his employment within the Antelope Valley.
The complaint then states that, thereafter, on March 2, 1988, a pending motion by Antelope for summary judgment in the federal action was granted. On March 4, the federal court granted LCH’s motion for leave to file its amended federal complaint. On March 18, LCH filed an amended complaint that dropped Abraham as a named defendant, but retained the charging allegations from the proposed amended federal complaint.
According to Abraham’s complaint, LCH launched a personal attack on him “for the purpose of prompting the termination of his employment at [Antelope]. LCH seeks to have [him] fired because he has done his job too well and made [Antelope] a more effective competitor with LCH.”
The six causes of action are summarized as follows:
First Cause of Action for Defamation.
Abraham alleges LCH’s proposed amended federal complaint, the December 25 article in the Antelope Valley Press “concerning [LCH’s] proposed Amended Federal Complaint,” and the revised federal complaint accuse him of a wide variety of unlawful and criminal acts and are false and libelous on their face. Because these statements allegedly “had no reasonable or logical relation to the federal action and were not made to achieve the objects of the litigation or to promote the interests of justice,” they purportedly were not privileged.
Second Cause of Action for Abuse of Process.
Abraham alleges LCH willfully misused the process of the federal court by filing its motion for leave to amend and, after leave to file was granted, not filing the proposed amended complaint, but instead filing its revised federal complaint. LCH’s alleged “ulterior purpose and motivation in so willfully misusing the process of the Federal Court. . . was to force [Antelope] to terminate Abraham’s employment . . . , to force Abraham to terminate his employment in the Antelope Valley, and to otherwise gain some collateral advantage over Abraham and his employer, [Antelope].”
Third Cause of Action for Intentional Interference With Contractual Relation.
Abraham alleges there was a contract between him and his employer; defendants knew of the employment contract; and both separately and in conspiracy intentionally interfered with the employment relationship, all with the intent to harm Abraham financially and to induce Antelope to breach its employment contract with him.
Fourth Cause of Action for Intentional Interference With Prospective Business Advantage.
Abraham alleges defendants knew of the economic relationship between him and Antelope and intentionally interfered with it, all “with the intent to harm Abraham financially and to induce [Antelope] to sever its economic relationship” with him.
Fifth Cause of Action for Conspiracy to Intentionally Interfere With Contractual Relations and Prospective Economic Advantage.
Abraham alleges that defendants conspired to interfere with Abraham’s contractual relations and prospective economic advantage.
Abraham alleges all of the above acts were “outrageous and directed solely at attempting to terminate Abraham’s employment with [Antelope] and in the Antelope Valley.” The conduct allegedly was intentional and malicious, done with the knowledge that Abraham’s emotional and physical distress would thereby increase, and with a wanton and reckless disregard of the consequences to him. LCH’s conduct allegedly subjected Abraham to humiliation, mortification, and severe emotional distress; as a result, he has allegedly suffered humiliation, mental anguish, and emotional and physical distress.
E. Respondents’ Demurrer to Abraham’s Complaint in the Superior Court
Respondents LCH and Paracelsus Healthcare Corporation demurred to the complaint on grounds the alleged causes of action were barred by the absolute privilege of Civil Code section 47, subdivision 2 and the cause of action for abuse of process failed to set forth facts sufficient to constitute a cause of action. Sierra separately demurred.
Abraham argued that the privilege does not apply because it protects publications made in connection with judicial proceedings only when the litigation is contemplated in good faith and the publications are made to achieve the objects of the litigation, are in furtherance of the litigation, and promote the interests of justice. In addition, Abraham asserted he sufficiently pled his cause of action for abuse of process.
The demurrers were heard by the Honorable Margaret M. Grignon, Judge presiding on September 30, 1988. The court sustained the demurrers without leave to amend “on the grounds that the conduct complained of in the Complaint is protected by the privilege of Civil Code section 47(2)” and dismissed the complaint against all defendants. Appellant appeals from the order of dismissal.
Discussion
A. The Absolute Privilege of Civil Code Section
1. The Standard of Review.
The Court of Appeal in Carden v. Getzojf (1987)
As we now explain, the plain meaning of the section 47, subdivision 2 privilege, its legislative history, and case law all support the trial court’s determination that Abraham’s complaint is based on absolutely privileged publications made in a judicial proceeding. Abraham’s contention, that the “restrictive test” enunciated in Bradley v. Hartford Acc. & Indem. Co. (1973)
2. The Plain Meaning of Section 47, Subdivision 2 Demonstrates It Is an Absolute Privilege, Unaffected by Malice.
Section 47, subdivision 2 provides: “A privileged publication or broadcast is one made—. . . 2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or
"When statutory language is clear and unambiguous there is no need for construction, and courts should not indulge in it." (West Covina Hospital v. Superior Court (1986)
Furthermore, as we now explain, the legislative history of section 47 and controlling case law support the plain meaning of the statute.
3. The History of Section 47, Subdivision 2 Demonstrates the Legislature Intended It to Be an Absolute Privilege, Not Affected by Malice or the Intent to Do Harm.
The primary task in construing a statute “is to determine the Legislature’s intent. [Citation.] ‘The court turns first to the words themselves for
“[I]t is instructive to compare section 47, subdivision 2, as originally enacted in 1872 with its present form.” (O’Neil v. Cunningham (1981)
When enacted in 1872, section 47, subdivision 2 “extended the privilege only as follows: ‘In testifying as a witness in any proceeding authorized by law to a matter pertinent and material, or in reply to a question allowed by the tribunal.’ . . . The subdivision was amended in 1873-74. It now applied ‘In any legislative or judicial proceeding, or in any other official proceeding authorized by law.’ The privilege was thus broadened by being made applicable to persons other than witnesses and all references to materiality and pertinency were removed from this section. Thus it stood until 1927.” (Fn. omitted.) (Thornton v. Rhoden, supra,
In 1911, the California Supreme Court in Gosewisch held that malice did not defeat the privilege. (Thornton v. Rhoden, supra,
Then, in 1927, “a proviso was added which ‘changed the absolute privilege to a conditional privilege in a single subclass of judicial proceedings— divorce proceedings’ . . . .” (McClatchy Newspapers, Inc. v. Superior Court, supra,
“ ‘It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has
4. The California Supreme Court Has Decided the Privilege Under Section 47, Subdivision 2 Is Absolute and Not Affected by a Defendant’s Motives. The Only Limitation Is a Reasonable Connection to the Judicial Proceeding.
Over 70 years ago, in Gosewisch v. Doran, supra,
In 1956, the court in Albertson v. Raboff (1956)
The Albertson court applied a liberal standard for determining whether a statement is sufficiently connected to the judicial proceedings: “It is our opinion that the privilege applies to any publication, . . . that is 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
In 1982, the court in Slaughter v. Friedman (1982)
Broad application of the absolute privilege in a judicial proceeding is explained by the critical role of the privilege in promoting free access to the courts and in shielding “counsel, his [or her] client and witnesses from having their motives questioned and being subjected to litigation if some connection between the utterance and the judicial inquiry can be established.” (Thornton v. Rhoden, supra,
As with all privileges, some who are undeserving may benefit from section 47, subdivision 2; but that is the price the Legislature has agreed to pay in order to protect the right of attorneys, witnesses, jurors, and judges to speak freely in the course of judicial proceedings, without fear of subsequent lawsuits. “ ‘The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.’ ” (Ribas v. Clark, supra,
In Kachig (cited with approval in Ribas), the court “with considerable regret and dissatisfaction” nevertheless refused to give relief to a party against whom previous final judgments had been entered allegedly based on a false document and perjured testimony. (Kachig v. Boothe, supra,
It is tempting to assist those who may be wronged by invocation of the privilege. However, “it would be difficult if not impossible to formulate a
Along with the plain meaning of the statute and its legislative history, decisions of the Supreme Court thus make clear that, except for an action for malicious prosecution (Albertson v. Raboff, supra,
5. Most Court of Appeal Decisions Also Recognize the Absolute Nature of the Privilege Under Section 47, Subdivision 2.
In addition to dispositive Supreme Court authority, there is a long line of decisions by the Courts of Appeal, both recent and longstanding, supporting an expansive interpretation of the section 47, subdivision 2 privilege.
Other cases from the Second Appellate District upholding the privilege include:
a) Division One: Woodcourt II Limited v. McDonald Co. (1981)119 Cal.App.3d 245 , 251 [173 Cal.Rptr. 836 ] (per Lillie, J.) [The Supreme Court in Albertson imposed no limitations or qualifications on the absolute privilege it accorded notice of lis pendens under section 47, subdivision 2; in any event, there was a patently obvious legitimate relationship between the lis pendens and the main lawsuit.];15 (Brody v. Montalbano (1978)87 Cal.App.3d 725 , 733 [151 Cal.Rptr. 206 ].)
b) Division Two: Chen v. Fleming (1983)147 Cal.App.3d 36 , 39-41 [194 Cal.Rptr. 913 ]; Rosenthal v. Irell & Manella (1982)135 Cal.App.3d 121 , 125-126 [185 Cal.Rptr. 92 ]; Portman v. George McDonald Law Corp. (1979)99 Cal.App.3d 988 , 990-991 [160 Cal.Rptr. 505 ] [adopting Albertson rationale that publication “ ‘need only have some connection or relation to the proceedings’ ” for the privilege to attach].
c) Division Three: Carden v. Getzoff, supra,190 Cal.App.3d 907 [upholds sustaining of demurrer although complaint alleged expert accounting witness for plaintiff’s former wife had manufactured false evidence and testified falsely]; Lerette v. Dean Witter Organization, Inc. (1976)60 Cal.App.3d 573 [131 Cal.Rptr. 592 ]; Thornton v. Rhoden, supra,245 Cal.App.2d at page 93 [“If the matter is privileged, it is so regardless of the good faith vel non of the defamen ” (Italics added.)].
d) Division Four: Jordan v. Lemaire (1963)222 Cal.App.2d 622 , 625 [35 Cal.Rptr. 337 ] [To be protected by section 47, subdivision 2, the defamatory matter need not even be relevant or pertinent but must only “ ‘have some reference to the judicial function which the judge is performing’ ” and mustnot be “ ‘so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety.’ ”].
e) Division Five: Berman v. RCA Auto Corp., supra, 177 Cal.App.3d at pages 324-325; Izzi v. Relias (1980)104 Cal.App.3d 254 , 262-263 [163 Cal.Rptr. 689 ]; Imig v. Ferrar, supra, 70 Cal.App.3d at pages 55-56; Scott v. McDonnell Douglas Corp. (1974)37 Cal.App.3d 277 , 285 [112 Cal.Rptr. 609 ] [Absolute privilege of section 47, subdivision 2 applies to legislative proceedings, and existence of malice will not defeat the privilege “when it is shown that the statement which is alleged to be defamatory bears some connection to the work of the legislative body.”]; Friedman v. Knecht, supra,248 Cal.App.2d at page 462 [The court is not concerned with a publisher’s motives.].
Cases from other districts demonstrating an interpretation of section 47, subdivision 2 in conformity with the philosophy expounded in Albertson and Ribas include:
a) First Appellate District: Loomis v. Superior Court, supra,195 Cal.App.3d 1026 , 1029 [Malice or intent to do harm does not defeat section 47, subdivision 2.]; Steiner v. Eikerling, supra,181 Cal.App.3d at page 642 [impliedly rejecting Bradley rationale]; Costa v. Superior Court (1984)157 Cal.App.3d 673 , 678-679 [204 Cal.Rptr. 1 ]; O’Neill v. Cunningham, supra, 118 Cal.App.3d at pages 475-476 [rejecting Bradley’s “interest of justice” test, and holding letter written by attorney in an attempt to settle a malpractice action absolutely privileged under section 47, subdivision 2 although the letter allegedly defamed client]; Tiedemann v. Superior Court (1978)83 Cal.App.3d 918 , 926 [148 Cal.Rptr. 242 ] [libel and slander based on former business associate’s communication to IRS re plaintiff’s possible tax fraud privileged, even if defendant was maliciously motivated by revenge]-, Smith v. Hatch (1969)271 Cal.App.2d 39 , 45-50 [76 Cal.Rptr. 350 ] [letter sent by attorney to client and read to association at meeting was absolutely privileged under section 47, subdivision 2 and qualifiedly privileged under section 47, subdivision 3; broad test adopted for application of the privilege]; Bernstein v. Alameda etc. Med. Assn. (1956)139 Cal.App.2d 241 , 246 [293 P.2d 862 ]; Lewis v. Linn, supra,209 Cal.App.2d 394 .
b) Third Appellate District: Williams v. Coombs (1986)179 Cal.App.3d 626 , 645 [224 Cal.Rptr. 865 ] disapproved on another point in Sheldon Appel Co. v. Albert & Oliker (1989)47 Cal.3d 863 , 883, footnote 9 [254 Cal.Rptr. 336 ,765 P.2d 498 ] [In an action for intentional infliction of emotionaldistress, “[n]either actual malice or falsehood will defeat the privilege so long as the statement has any reasonable connection with a legal action and is made in furtherance of the litigation,” but plaintiff is allowed to proceed with a malicious prosecution action.]; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 , 392-393 [182 Cal.Rptr. 438 ]; Twyford v. Twyford (1976)63 Cal.App.3d 916 , 924-926 [134 Cal.Rptr. 145 ] [affirms dismissal of husband’s action against former wife and her attorneys for malicious prosecution, abuse of process, and defamation where, in contempt proceedings, wife allegedly filed a request for admission in which she falsely accused husband of forging her name on tax check].
c) Fourth Appellate District: Larmour v. Campanale (1979)96 Cal.App.3d 566 , 568-569 [158 Cal Rptr. 143]; Umansky v. Urquhart (1978)84 Cal.App.3d 368 , 371-373 [148 Cal.Rptr. 547 ] [If complaint allegations are consistent with the objects of the litigation, inquiring into the motive of counsel would have an unnecessary chilling effect upon lawyers.]; Kachig v. Boothe, supra, 22 Cal.App.3d at pages 640-641 [no cause of action for intentional infliction of emotional distress where plaintiff lost at á previous trial based on a manufactured letter and perjured testimony]; Whelan v. Wolford (1958)164 Cal.App.2d 689 , 694 [331 P.2d 86 ] [Absolute privilege applies to any publication required or permitted by law in the course of an official proceeding as long as there is a reasonable relation to the action.].
d) Fifth Appellate District: McClatchy Newspapers, Inc. v. Superior Court, supra,189 Cal.App.3d 961 , 971-977 [rejecting Bradley's “promote the interest of justice” test, and holding that even though allegations, testimony and evidence were produced pursuant to a conspiracy to invoke immunity under section 47, subdivisions 2 and 4, a report of testimony with a reasonable relation to the action in which the statements were introduced is absolutely privileged]; Pettitt v. Levy, supra, 28 Cal.App.3d at pages 488-490 [demurrer sustained to complaint alleging defendants had prepared and submitted a false or forged document to city council and planning commission, finding malice or intent to do harm is not relevant to an absolute privilege like section 47, subdivision 2].
e) Sixth Appellate District: Financial Corp. of America v. Wilburn, supra, 189 Cal.App.3d at page 777 [“Plaintiffs’ premise is that the subjective intent, purpose, or knowledge of a writer can destroy the privileged status of otherwise privileged statements. The law is otherwise.”].
As we now explain, the few cases that require consideration of motive or purpose in determining whether to apply the privilege under section 47,
6. Bradley v. Hartford Acc. & Indem. Co. and Its Progeny Ignore the Plain Meaning and History of Section 47, Subdivision 2 and Impose a Requirement That Defeats the Legislature’s Intent. We Therefore Decline to Follow Bradley and the Decisions of the Court of Appeal Which Rely on It.
The principal case upon which Abraham relies is Bradley v. Hartford Acc. & Indem. Co., supra,
Unlike the case at bar, where all parties were interested in and involved in the federal litigation and the statements were directly related to the federal claims, the reasonable relation to a judicial proceeding does appear attenuated in Bradley. But the Bradley court did not stop with a holding that reasonable relationship to a judicial proceeding was nonexistent; rather, in dicta, the Bradley court laid “special emphasis . . . on the requirement that [the publication] be made in furtherance of the litigation and to promote the interest of justice” and concluded “[o]nly if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term ‘judicial proceeding’ and the persons who should be regarded as litigants or other participants.” (Original italics.) (
However, even if one can harmonize part of Bradley with controlling Supreme Court authority, the additional Bradley requirement, that the publication must “promote the interest of justice,” is at odds with the very nature of the privilege. The good faith of the publisher or concern with the interest of justice is simply not at issue. For example, defamation by definition does not “promote the interest of justice.” Nevertheless, the Legislature has seen fit in enacting section 47, subdivision 2 to provide an absolute privilege to protect defamatory publications made in judicial proceedings. “It seems reasonably certain that the Legislature did not immunize a defamer from liability for his defamation because it thought that a defamatory publication in a judicial proceeding promoted ‘the interest of justice.’ ” (O’Neil v. Cunningham, supra,
In our view Bradley and Barbary Coast incorrectly assess the section 47, subdivision 2 privilege. Other cases relied upon by Abraham for his contention “that the litigation be conducted good faith, and that the publications be made in furtherance of the litigation and to promote the interest of justice before the privilege will attach” simply do not support Abraham’s theory.
Fuhrman v. California Satellite Systems (1986)
In Earp v. Nobmann (1981)
The court in Walsh v. Bronson (1988)
Applying the above principles to the facts of this case, we now proceed to a discussion of each cause of action in Abraham’s state court action and find that the publications about Abraham are absolutely protected by the privilege of Civil Code section 47, subdivision 2.
8. Abraham’s State Court Complaint Is Barred by Civil Code Section 47, Subdivision 2.
Under the test for application of the section 47, subdivision 2 privilege mandated by the Supreme Court and the plain meaning of the statute, LCH’s motive or purpose in filing the federal lawsuit and publishing its allegations about Abraham are not material to the causes of action alleged by Abraham in his complaint. Therefore, the trial court correctly ruled as a matter of law that the Abraham complaint is barred.
First, it cannot be disputed that “[t]he filing [of] a lawsuit is a publication in the course of a judicial proceeding.” (Williams v. Coombs, supra,
Second, Abraham’s complaint is based on allegations clearly made in connection with pending federal litigation. The original federal complaint, alleging facts and legal theories similar to those in the later amended pleadings, demonstrates LCH was proceeding with a real lawsuit. The proposed amended complaint and revised amended complaint are far more than mere “anticipation of litigation,” the only situation where one’s good faith intent to bring a lawsuit might be an issue. (Fuhrman v. California Satellite Sys
Third, the allegations in the federal complaints concerning appellant are directly related to the issues raised by the pleadings. The federal complaints assert monopoly, antitrust and similar causes of action based on allegedly using Antelope’s perinatal services as a carrot and a stick to force others to use the hospital’s medical and surgical facilities as well. The allegations relating to Abraham allege his involvement in these schemes and are inextricably linked to the gravamen of the complaint.
Fourth, the communications between counsel are directly related to the litigation and are protected by the privilege. Attorneys must be free to communicate with opposing counsel about the merits of a case and proposals for settlement without fear of subsequent lawsuits by disgruntled former opposing parties. (Izzi v. Relias, supra,
Fifth, the publications in the Antelope Valley Press were confined to a report of the pleadings in the federal complaint. Since the articles were accurate reports of the contents of the federal pleadings (Abraham does not contend otherwise), they were absolutely privileged as a “fair and true report in a public journal, of (1) a judicial . . . proceeding.” (Civ. Code, § 47, subd. 4.) Since both the pleadings in the federal court and publication in the press of a fair and true report of the pleadings are absolutely privileged,
Finally, there is the alleged communication of the allegations within the Antelope Valley and specifically within the medical community. These, too, are privileged communications. First, the local medical community possessed “a substantial interest in the outcome of the pending litigation” and as such were “participants” therein. (Costa v. Superior Court, supra,
9. Section 47, Subdivision 2 Applies to All But Malicious Prosecution Actions; the Privilege Therefore Bars Abraham's Cause of Action for Abuse of Process.
Abraham contends that even if the section 47, subdivision 2 privilege bars some of his complaint, it should not bar his abuse of process cause of action. He analogizes to malicious prosecution, which thus far is the only exception to section 47, subdivision 2 recognized by case law. As we now demonstrate, it is consistent with the purpose of section 47, subdivision 2 to exempt malicious prosecution while still applying the privilege to abuse of process causes of action.
Although section 47, subdivision 2 is in the defamation chapter, it “applies to virtually all other causes of action, with the exception of an action for malicious prosecution.” (Ribas v. Clark, supra,
The rationale behind allowing a malicious prosecution action while permitting section 47, subdivision 2 to bar other causes of action, including abuse of process, is clear. “The policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements offavorable termination, lack of probable cause, and malice [the elements of a malicious prosecution action] are satisfied. [Citations.]” (Italics added.) (Albertson v. Raboff, supra,
Apart from his attempt to analogize abuse of process to malicious prosecution, despite their obvious differences, Abraham also.contends section 47, subdivision 2 should not apply because the tort of abuse of process will not survive if the section 47, subdivision 2 privilege bars actions based on judicial proceedings. Abraham’s theory is premised on the notion that the actions covered by the tort of abuse of process are somehow coextensive with publications that are protected by section 47, subdivision 2. However, it is only under Abraham’s own version of what constitutes abuse of process, a version not supported by the case law, that any such overlap between the tort and the privilege arises. In fact, as discussed below, the facts set forth in Abraham’s complaint are not sufficient to state a cause of action for abuse of process. Thus, any theoretical overlap between the abuse of process tort and publications made privileged by section 47, subdivision 2 disappears in light of existing authority that, as we now explain, holds “the mere filing or maintenance of a lawsuit... is not a proper basis for an abuse of process action.” (Oren Royal Oaks Venture, supra,
10. Section 47, Subdivision 2 Aside, the Demurrer to Abraham’s Cause of Action for Abuse of Process Was Correctly Sustained Since Abraham Failed to State Facts Sufficient to Constitute an Abuse of Process.
“It is well settled that ‘[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.’ ” (Original italics.) (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986)
In particular, as this court has held, “the mere filing of a complaint cannot constitute an abuse of process.” (Drasin v. Jacoby & Meyers, supra,
Similarly, in Templeton Feed & Grain v. Ralston Purina Co. (1968)
In all of these cases, more than a simple publication, which would be privileged under section 47, subdivision 2, was involved. “ “Process is a means whereby a court compels a compliance with its demands.” [fl] Thus, the essence of the tort “abuse of process” lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority ....’” (Woodcourt II Limited v. McDonald Co., supra, 119 Cal.App.3d at pp. 251-252.) The only possible “process” employed in the case at bar is the filing of a proposed first amended complaint and the revised amended complaint. But the mere filing of a complaint cannot constitute abuse of process; respondents’ demurrer was therefore properly sustained as to that cause of action irrespective of the section 47, subdivision 2 privilege.
The judgment is affirmed. Costs on appeal are awarded to respondents. Lillie, P. J., concurred.
Notes
This initial complaint filed in the federal court apparently was not part of the record in the instant superior court action and consequently not part of the record on appeal. We take judicial notice of their initial federal complaint, however, which is attached as an appendix to the brief of respondents, LCH and Paracelsus Healthcare Corporation, pursuant to Evidence Code sections 452, subdivision (d), and 459.
The proposed first amended complaint further alleged the relationship with the Medical Group involved the misappropriation of public funds in that Abraham and others transferred assets from AVHD and Antelope to assist the Medical Group. Such assistance allegedly included allowing Abraham, a full-time employee of Antelope whose entire salary is paid by Antelope, to devote substantial amounts of his time to conducting business for the Medical Group. The Medical Group’s application to change from a for-profit to a nonprofit entity was alleged to be wrongful in that one of the Group’s primary goals “is to secure substantial economic benefits for its physician members.”
In the original federal complaint, these statements were alleged to have been made by “an Antelope Valley hospital official.” Abraham was not specifically named.
Each cause of action realleged by reference and incorporated the previous allegations.
Sierra maintains that the publications at issue in the superior court action were not made by Sierra, and therefore its position in the lawsuit is significantly different from that of the other respondents. Since we hold all publications at issue to be absolutely privileged under Civil Code section 47, subdivision 2, we find it unnecessary to reach the additional issue adduced by Sierra of its purported lack of involvement in the publications.
The order of dismissal is a final judgment from which an appeal can be taken. (Carney v. Rotkin, Schmerin & McIntyre (1988)
Unless otherwise noted, all statutory references are to the Civil Code.
Subdivision 1 of section 47 provides an absolute privilege for publications and broadcasts made “[i]n the proper discharge of an official duty.” Subdivision 3 provides a qualified privilege for certain communications, made without malice, to a person interested therein by one who is also interested. Subdivision 4 provides a privilege to a publication or broadcast “[6]y a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof. . . .” (Italics added.) Subdivision 5 allows a privilege for a publication “[b]y a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”
Despite the adjective “proper,” subdivision 1 provides an absolute privilege for high executive officials. (Saroyan v. Burkett (1962)
“ ‘California courts have consistently applied a liberal standard for establishing a relationship between publications made by parties and judicial proceedings.’ ” (Financial Corp. of America v. Wilburn (1987)
Section 47, subdivision 2 also applies to official proceedings authorized by law; similar policy reasons support an absolute privilege in that context. (See Imig v. Ferrar (1977)
See Friedman v. Knecht (1967)
The circumstances of Kim v. Walker (1989)
Some of these cases directly reject the theory advanced by Abraham and Bradley v. Hartford Acc. & Indem. Co., supra,
Contrast Kinnamon v. Staitman & Snyder (1977)
However, as the court in Steiner v. Eikerling, supra,
Moreover, earlier decisions by the Bradley court point in a different direction. (See, e.g., Ascherman v. Natanson (1972)
We note that the Supreme Court granted review in Silberg v. Anderson, supra, (Cal.App.). Review has also been granted in Kimmel v. Goland; Morshead v. Silverman (Feb. 28, 1989) A0039230 [nonpub. Opn.]; Durant Software v. Herman (Cal.App.); and Harris v. Tashma (Cal.App.), all of which involve the scope of section 47, subdivision 2. We do not discuss these cases pending the Supreme Court’s review except for a footnote reference.
See also McKnight v. Faber (1986)
In 1945, the Legislature amended subdivision 4 to delete the requirement that the report be “without malice.” (See Historical Note, 6 West’s Ann. Civ. Code (1982 ed.) § 47, p. 239.) Therefore, as long as the report is a “fair and true report,” it is absolutely privileged.
See, e.g., Woodcourt II Limited v. McDonald Co., supra,
Declining to expand the tort of malicious prosecution, a unanimous Supreme Court in Sheldon Appel, supra,
Neither Spellens, Templeton, nor Barquis even mentions section 47, subdivision 2.
Concurrence Opinion
I concur in the judgment. My differences with the majority are solely at the margins of what is obviously a very scholarly opinion and in no way affect the outcome of this particular appeal. A full expression of those differences is best left for a future case where my reservations bear directly on issues determinative of the result.