*1 No. 31016. Apr. [L.A. 1979.] HACKETHAL,
CLEMENS A. Plaintiff and v. Appellant, WEISSBEIN, ARTHUR S. Defendant and Respondent. HACKETHAL,
CLEMENS A. Plaintiff and Appellant, SPRATT, IRVING L. Defendant and Respondent. HACKETHAL,
CLEMENS A. Plaintiff and Appellant, MURDOCH, J. LAMONT Defendant and Respondent.
Counsel
Edward J. Horowitz and J. Arthur Jaffee for Plaintiff and Appellant.
Wilson, Dunn, Borror & Hulle, Moore, Lucien A. Van Graves & Madory and Richard E. for Defendants and Madory Respondents.
Hassard, Huber, Hassard, & Howard Bonnington, David E. Rogers Willett, II, Musick, Charles F. Bond Garrett, Peeler & James E. Ludlam and Charles F. Forbes as Amici Curiae on behalf of Defendants and Respondents.
Opinion
NEWMAN, J.—Plaintiff has from dismissal appealed judgments three consolidated actions after demurrers, the trial court sustained amend, without leave to on the ground allegedly defamatory were immunized these words of Civil Code section 47: “A publications by is ... one made . . . or privileged (1) publication (2) any legislative [i]n other official judicial authorized proceeding, (3).in-any proceeding by law . . -”1 . those words create parties agree privilege —if absolute, be' not qualified. it—would 1 Thesection in its “A reads: entirety privileged or broadcast is publication one made— “1. In the of an official proper discharge duty. “2. In or. judicial proceeding, other official law; authorized that an
proceeding or averment provided, allegation contained in any or affidavit filed an action for divorce or an action pleading under prosecuted Section
The issue here is whether a before commis hearing judicial sion of a “official society private law” of Civil Code section 47. within scope in internal In 1975
Plaintiff is a doctor and medicine. he specialist service committee of the San was accused Bernardino Medical certain (SBCMS) ethics violating Society principles County Association. were of the American Medical held before the Hearings commission, he was from SBCMS SBCMS mem- expelled at the as witnesses and Defendants hearing presented bership. appeared as to his methods medical information practice. derogatory *4 of the first cause action each of three seeks complaints damages on that defendants’ was testimony negligently given, ground not make did reasonable efforts ascertain truth and did not they was believe that warranted facts known to by reasonably testimony them. The second cause of action was alleges testimony motivated malice. by
Was the society hearing “official”? constitute an “official It the SBCMS did is here that hearing argued of a law” the members even authorized because private proceeding by notice, and not be without association expelled charges, hearing. may 12 (1974) v. The Coast Orthodontists Pinsker (See Society of Pacific P.2d 495].) 541 460 Cal.Rptr. [81 whom no affirmative relief made of or a or concerning 137 this code person by against as to the action not be a or broadcast person in such shall privileged publication prayed unless such of this section or averment within making allegation meaning said malice, to, one or sworn be made without by having verified affidavit pleading averment and or allegation for the truth of such reasonable and cause probable believing action. the issues in such be material and relevant to unless or averment allegation such therein, communication, malice, (1) one who by to a interested person “3. without In a interested, as (2) interested who stands in such relation to the person or one is also by innocent, or the motive for the communication for ground supposing afford a reasonable interested to the information. (3) give who is requested person (3) (2) or (1) legislative, in a a public and true report journal, judicial, “4. a fair By thereof, (5) of (4) or a or said in the course official proceeding, anything other public official, upon made person public verified or complaint by any charge issued. shall have been a warrant complaint if such (1) meeting of a meeting, and true public “5. a fair report By (2) the publication to the convened for a lawful open public, was purpose lawfully for the benefit.” was of the matter complained
59 v. Ascherman Natanson 23 (1972) 861 Cal.App.3d Cal.Rptr. [100 656] held that the directors of a district on a hearing by public hospital for doctor’s staff was an official application privileges law. The court to “(1) whether the administra- inquired tive is vested with discretion based body upon investigation facts, consideration whether it is entitled to (2) hold evidentiary and decide the issue of rules of law to the hearings application and, facts more ascertained whether its affects (3) importantly power . . .”. (23 personal property rights private persons Cal.App.3d In Ascherman as all the cases the nearly pertinent body conducting was a hearing Ferrar 70 government (1977) agency. Imig 48 v. Merrihew Cal.App.3d Cal.Rptr. [138 Frisk (police department); 540] 85 A.L.R.3d Cal.App.3d Cal.Rptr. (school [116 1128] board); (real King Borges Cal.App.3d Cal.Rptr. [104 414] estate commissioner); v. Tahoe Forest District Wyatt (1959) 174 Hospital P.2d district).) Cal.App.2d (public 93] v. Sullivant
Goodley 451] *5 seems to be the case that The only equates private public. hearings there were before committees to consider private hospital suspension of a doctor’s The court ruled that Ascherman should privileges. to apply because and Business Professions Code section private hospitals 2392.5 five or more doctors requires having rules every hospital promulgate for the of the rules to operation assure hospital, including help of the medical staff. The mere fact competency that a statute not, committees or other however, does requires creating groups mean that each so formed is “official.” The committees of a body private are not & (Cf. Grodin, Tobriner hospital The government agencies. Individual Public Service in the New Industrial State Enterprise 1247, 1255, 55 Cal.L.Rev. fn. 35.) subdivision requirement of section 2392.5 that the medical staff be (c) also “self-governing” indicates that the had no intent to create “official” bodies. Legislature
Katz Rosen 48 1032 ruled that Cal.App.3d Cal.Rptr. 853] a local bar association to consider the of one of hearing expulsion its members is not official. McMann v. Wadler Cal.App.2d ruled that a directors similarly proceeding 37] “ association is not official. The court stated that an ‘official dairymen’s which resembles proceeding’... judicial legislative proceed- [is one] such as transactions administrative boards and ings, of a of a board of directors not a meeting
quasi-legislative 95; ed.], Prosser on Torts § the like. or [2d corporation nonprofit 530 .. . .)” (189 Gunsul Ray, Cal.App.2d
Legislative history “official” section 47 used The Civil Code’s adjective original and subdivision (“official 1 (“official in subdivision duty”) only read, as a witness in “In Section testifying proceeding”). law . . . .” authorized by proceeding any our that affects 1873-1874 amendment analysis
In history did What the amenders of the amendment. we find no here explanation read, “in any was revise law other proceeding, official “official” well the word may The intent added.) adding . . . .” (Italics the absolute nongovernment proceedi have been to privilege deny “official the words construe We could hardly ngs.2 1872, to since include 47, subdivision unchanged in section duty” 2—“in The words duties. nongovernment merit no extension.3 . . . official proceeding” similarly — § § Does Civil 43.8 ’s absolute 47(2) Code imply § described in 43.8? extends the hearings 1975, 1976, and 1977), in 1974 amended in (and
Section enacted that are “intended to aid to communications extends a qualified privilege . . .” of a if there is not doctor in the evaluation qualifications, *6 be true and if matter not believed to as true reasonably any represented medical “to are addressed the communications hospital any hospital, school, or dental staff, medical professional licensing society, professional board, division, of such committee peer board or licensing panel also § . . . .”4 committee, or committee review underwriting on Torts of 1 Hilliard 1872 had cited page the Code Commissioners 2 Because (on 328-329), the pp. a of (1866), nongovernment proceedings discussion which leads into if left subdivision well have believed that section might 1873-1874 revisers unamended, to such proceedings. would apply take oath that members bodies of private there no legal requirement 3 In is general oath —which before them take a testimonial that witnesses Nor is it required of office. means, course, no deterrent. of a is charge generally that the threat perjury of Section afforded by “In to the privilege 43.8 reads: addition 4 Civil Code section of, for damages of action and no cause the part on liability be no monetary there shall in the information of the communication on account person shall arise against, any action “without The malice.”) section 43.8 regarding is protection “[i]n addition to the 47,” afforded Section and privilege immunities “[t]he afforded . . . shall not affect the absolute availability be afforded Section 47.” may additional in 1974 intended to create
Since Legislature apparently least some must have concluded that the draftsmen immunity, not been 43.8 until then had covered section protected by intent seems to have been (1) 2. The section provide and a not to bodies only provide immunity previously protected, to a medical for communications made variety immunity qualified groups. not a section 43.8 a section in our case was hearing, hearing 43.8 makes “official The enactment section proceeding.”
sense because exclusively government applies to communica- The new section extends a qualified privilege agencies. not that those benefit tions made to it does private groups; imply groups from section subdivision 2’s too absolute privilege.
The trial court not the demurrers. The should have sustained judg- ments are reversed.5 J., J., Manuel, J.,
Bird, Mosk, C. concurred. TOBRINER, J. —I dissent. The sole issue this case is presented by whether doctor who was the of a local medical association subject “peer review” maintain defamation action proceeding may disciplinary a witness who testified him at the association’s against against quasi- It has been settled both in this state and judicial hearing. long throughout of a witness at a country testimony judicial proceeding not action, basis a defamation absolutely privileged may three in Westlake Court just years ago, Community Hosp. Superior staff, of such possession person any hospital, hospital professional society, school, division, medical or dental professional licensing board or committee or panel board, committee, such licensing review peer underwriting committee described in *7 Section 43.7 when such communication is intended to aid in the evaluation the fitness, character, qualifications, of a the insurability practitioner arts healing and does not as represent true matter not believed to be true. The reasonably immunities afforded this section and by Section 43.7 shall not by affect the availability absolute which afforded 47.” privilege Section may by Sullivant, 5 Goodley cited supra, in approvingly Westlake Community Hosp. Court 17 Cal.3d Superior 551 P.2d Cal.Rptr. 410], is to the extent it disapproved is inconsistent with views herein. expressed court, 551 P.2d in 410], this decision, this concluded that absolute unanimous expressly privilege in the to statements made course of quasi-judicial applies proceedings a medical review” without authority regard “peer whether the medical was body nongovern- nominally governmental mental entity. case,
In at a conclusion the in arriving present contrary majority recent, short shrift to our unanimous decision in opinion gives extremely Westlake, in case in a brief footnote at the mentioning only passing It fn. does so without (Ante, conclusion opinion. facts of or of discussion of the that case our court’s analysis legal at As I shall I that the issue. believe Westlake decision is explain, question in this matter and the trial court’s action in controlling directly supports defamation action. dismissing plaintiff’s I Moreover, shall out that majority’s suggestion, point contrary 47 subdivision 2 in Westlake is not of section adopted interpretation with the consistent judicial purpose past interpreta- language, only addition, but, confirmed the most in tions of the section directly I shall that the in this area. recent action Finally, explain would draw between distinction quasi-judicial majority medical entities is nongovernmental governmental that to the treatment such both contrary parallel illogical directly been decisions. have accorded past judicial quasi-judicial reasons, trial I of the court all conclude For these judgment be affirmed. should Westlake, In this recent decision Westlake.
I court’s begin case, had been after a the instant a doctor who disciplined case, that (in review a nongovernmental entity peer proceeding of a civil action for owned instituted damages arising hospital) privately Westlake, however, case, In unlike the instant out proceeding. in the the medical decision-makers was action quasi- brought against a witness. The defendants in rather than against proceeding, on a were entitled contended Westlake judgment they summary alla, was barred action inter number of plaintiff’s arguing, grounds, the absolute provision privilege here. issue 47, subdivi- “Section we stated: to defendants’
In argument, response Albertson v. (see, an absolute affords sion e.g., Raboff *8 63 or broadcast’ made 379 P.2d to 405]) 46 any ‘publication [295 or ‘other official in connection any judicial, proceeding legislative, law,’ decisions have construed and several Court of Appeal made in connection with statements this quasi- protect provision v. boards. Goodley by hospital judicial 451]; Ascherman Sullivant Cal.App.3d Cal.Rptr. 656].) To extent
Natanson action an rests plaintiff’s present upon injury resulting specific from statements or individual the Westlake testimony given by during defendants ” would be action under these authorities. (Italics proceedings, precluded added; (17 fn. Cal.3d at omitted.) 481-482.) pp.
We on in went Westlake find that “the claim is not gist [plaintiff’s] that her has been occasioned defendants’ malicious injury simply by statements at the but rather that she has been injured by actions of the malicious its committee members in hospital revoking her staff italics) (id., we 482), privileges” (original accordingly concluded that the of Civil Code section rather than provisions section 47 were subdivision The above makes it applicable. passage clear, however, that our decision Westlake determined that expressly the extent action rests plaintiff’s present upon injury “[t]o from . . . individual defendants specific resulting given by testimony the action during [nongovernmental, quasi-judicial] proceedings, would . . . .” Since in the instant case action precluded plaintiff’s rests on defendant’s testimonial statements at the entirely unquestionably and not on additional actions taken quasi-judicial proceeding, defendant, Westlake the trial court’s that section upholds ruling action. precludes plaintiff’s
The our relevant decision in majority, virtually ignoring directly Westlake, base their conclusion that the absolute
subdivision 2 is in this case on the fact that the San inapplicable solely Bernardino Medical which conducted the County Society, not is fact, course, That proceeding, formally “governmental” entity. in no this case from Westlake from the way distinguishes similarly relevant Court of Sullivant, decision Appeal Goodley supra. however, now take the view that the
majority, apparently language section precludes provision’s application no how matter similar in nature nongovernmental proceeding, to a and without to whether the proceeding regard such a policies underlying apply nongovern- mental I As neither nor proceeding. explain, language, purpose
the line decisions section subdivision 2 long interpreting supports Moreover, out, I as the restrictive the section. reading point majority’s that action reveals the does not recent clearly Legislature legislative quite concur in novel section. interpretation majority’s noted, in As section subdivision relevant provides already part: one ... 2. In “A or is (1) made broadcast privileged publication or in other proceeding, proceeding official authorized law . . . .” added.) (Italics Although by majority suggest the “official authorized law’’ by language necessarily confines the statute’s conducted operation proceedings by governmen- bodies, tal is in the which there nothing statutory language equates law” with authorized by “governmental proceedings “official concede, As authorized law.” by majority quasi-judicial proceed- in conducted local medical association this case were not ings only by law,” but, indeed, “authorized were under law. required by California Pinsker Coast Orthodontists Society Pacific Moreover, 623, 460 P.2d in were 495].) question “informal,” “official,” as “unofficial” since they certainly opposed were as the association’s were bylaws duly with this court’s conformity quasi-judicial proceedings applicable decisions. (Id.) however, that term in section “official”
The imply, majority as with must be subdivision “governmental” synonymous interpreted provide “[a] provisions light In or broadcast is one made —1. proper privileged publication (Italics added.) majority apparently duty.” discharge official made whenever a statement is that subdivision intend to applies suggest 2 should and that subdivision one “governmental” duty, discharging to statements made be construed “governmen- during apply similarly tal” proceedings. that, to the flaw in this The fundamental analysis contrary majority’s th¿ 1 has not been term “official”
suggestion,
its
as
“governmental.” Although by
express
interpreted
synonymous
not draw
between
does
distinctions
terms section
officials,
California cases
statements made
different
“[t]he
no
that the absolute
this
leave
doubt
interpreting
provision
federal and state
1 is extended
under subdivision
only
high ranking
States,
of the states
such
the President of
United
officials
governors
cabinet,
federal
heads of
territories, the
the President’s
members
*10
state officers . . . .”
v.
(Frisk Merrihew (1974)
agencies,
comparable
319,
781,
42
323
see,
85 A.L.R.3d 1128];
Cal.App.3d
Cal.Rptr.
e.g.,
[116
706,
v. Burkett
57
(1962)
557,
Cal.2d
708-711
371
Saroyan
Cal.Rptr.
[21
Thus,
P.2d
if
293].)
the word “official” in
two
were
subdivisions
to be
as the
necessarily
interpreted identically,
majority imply,
“official
2
which subdivision
would
would be
proceedings”
apply
limited to
the above enumerated
high-ranking
cases,
course,
A
officials.
host
that
establish
public
unquestionably
47,
such
subdivision 2 is
untenable.
interpretation
clearly
48,
v. Ferrar
70
(See,
(1977)
55-57
e.g., Imig
Cal.App.3d
Cal.Rptr.
[138
Merrihew,
v.
Frisk
42
(police department proceeding);
540]
supra,
319 (school board
v.
Cal.App.3d
proceeding); King
Borges
(real estate
commission
Cal.Rptr.
414]
proceeding).)
section
thus does not bear the relevance to
Although
this
that
matter
cases
majority suggest,
interpreting
subdivision 1 are instructive in this context for
teach that a
they
proper
of the various subdivisions of section 47
interpretation
cannot be gleaned
from a sterile review of the
but rather
take
must
statutory language,
account of the
each of the
purposes
public policies underlying
distinct
Burkett,
statutory
provisions.
Saroyan
supra,
706, 709-710.) Indeed, in
our court
that in
Saroyan
emphasized
interpret-
the various
embodied in Civil
ing
Code section 47 it is
privileges
to consider the
evolution of common
“particularly appropriate”
general
law
in the area “because
was
intended
principles
evidently
[the section]
aas
codification of the
(Id.,
courts.”
general principles developed by
710. Cf. Li v. Yellow Cab
13 Cal.3d
Co.
821-823
p.
532 P.2d
Recognizing society’s encouraging give in matters health and testimony, particularly concerning safety, and in witnesses when this civic protecting they perform responsibility, confined to but often to similar
not strictly “judicial” proceedings applies well, have as authorities held long “quasi-judicial” in such the absolute testimonial privilege applicable the New York Court of As as for contexts. ago long example, similar statute observed “the transactions Appeals construing are such resemble . . in the statute as embraced judicial. purview boards such the transactions administrative considered, dealt with are liable to deliberated upon, subjects *11 v. 24 Bennett and determined.” (Italics added.) (1860) discussed (Stanford Prosser, on the 20, cases 26.) N.Y. Professor contemporary reviewing the has noted that the to which absolute proceedings immunity subject, a a “includes before tribunal which any performs applies hearing function. ... It extends ... to the of administrative many proceedings commissions, officers, far as have of such as boards so they powers in the law to the facts which discretion are as regarded applying judicial, Thus, character. the administrative ‘quasi-judicialin ordinary to revoke a is held to within the (Italics license proceeding privilege.” Law added.) (Prosser, (4th of Torts ed. 1971) 779-780.) pp. cases have been
In subdivision California past applying the than a of section. Rather sensitive the drawing purposes underlying distinction between proceed- rigid governmental nongovernmental as the cases have focused on the nature majority ings, propose, past and have held that when are the uniformly proceedings nature, 2 absolute of subdivision in the quasi-judicial privilege Westlake, Ferrar, 70 v. (See, supra; supra, ,e.g., Imig applicable. cited.)1 55 and cases Cal.App.3d (1975) 853], v. 48 1032 nor McMann Cal.Rptr. 1 Neither Katz v. Rosen Cal.App.3d [121 37], cases the two relied Cal.Rptr. 189 124 upon Wadler Cal.App.2d [11 case, Katz, in was In unlike the instant the statement question the contrary. is to majority, association, bar and the Court of local made in the course “proceeding”
not 2’s because court privilege inapplicable simply found section subdivision Appeal not have the to conduct such association did authority that the local bar concluded in to the nothing the matter. Contrary majority’s suggestion, on proceedings quasi-judicial 2 absolute privilege applies only indicates that the the Katz opinion that were if an association recognizes and Katz specifically governmental proceedings, matters, on the absolute disciplinary authorized to conduct quasi-judicial (48 at p. Cal.App.3d of subdivision would apply. privilege McMann, in a question statement was made defamatory during In the allegedly (a association) in which a member of the of a association dairyman’s meeting private McMann, however, in in occurred in was The meeting question association expelled. Pinsker, and, decision in more than a decade and a half court’s prior supra, this did resemble in form. not consequence, meeting relied the informal nature of in meeting concluding McMann court on was section 47 2 was not not applicable, stating: privilege absolute “[I]t for in intent an absolute utterance made every defamatory to grant that, cases, There can be no doubt under the California medical in this case was nature. society proceeding question “quasi-judicial” indications, the local From all procedure hearing was in all relevant identical council” society’s “judicial respects were review held to be for peer “quasi-judicial” Natanson, 2 in v. Ascherman purposes supra, Sullivant, Cal.App.3d (public hospital proceeding), Goodley supra, and, course, Westlake (private hospital proceeding) (private hospital (See also Anton v. Comm. San Antonio proceeding). Hosp.
Cal.3d 802 567 P.2d (private hospital); Wyatt 1162] Tahoe Forest Dist. P.2d Hospital 93] (public hospital).) all of these decisions is
Implicit
prior
recognition
witnesses to
when
witnesses
policy
encouraging
testify,
protecting
*12
do so
as much
with
force to such medical
review
they
testify, applies
peer
as to other “official” administrative
covered
proceedings
proceedings
by
47,
section
subdivision 2. As a New
a
Mexico court
stated in case
recently
out of a similar local medical
“The
arising
society
policy
proceeding:
reasons for
the same
according
privilege
quasi-judicial proceedings
review of
are
misconduct
at least
involving peer
alleged professional
in the case
other
covered
equally compelling
by
[as
societies,
absolute
privilege.]
appropriate professional
by exercising
review,
a
can and do
service
peer
perform great public
by exercising
control over
in a
trust . . . .”
those persons placed
position
public
945,
86
585
P.2d
1974)
946].)
v. Blank
N.M.
For
(Franklin
(Ct.App.
[525
reasons,
similar
sister
in recent
number
our
years
increasing
juris
dictions have held that statements made
local bar associ
during comparable
ation
are cloaked with an absolute
quasi-judicial proceedings
privilege.
594,
Ramstead v.
383
77
(See
219 Ore.
P.2d
A.L.R.2d
Morgan
[347
667,
v.
Wiener
22
481];
Weintraub
N.Y.2d 330
N.Y.S.2d
239
2Thus,
N.E.2d
1970)
56.)
v. Feller
452 S.W.2d
540];
(Tex.Civ.App.
McAfee
lawful
every
We are
meeting.
persuaded
‘official proceeding’ embraced in the
purview
the statute is that which resembles
judicial
such as
proceedings,
transactions of administrative boards and
quasi-judicial
quasi-legislative proceedings
(189
. .
128-129.)
. .”
pp.
addition,
2 In
numerous courts have
held the absolute testimonial
recently
privilege
applicable
to statements of witnesses made
during
arbitration
contractually
proceedings.
1973)
Neece v. Kantu
both purpose prior in this case. court’s of the the trial provision application support has Furthermore, makes it clear that recent Legislature legislation of section endorsed the interpretation in above, the Court As noted now Appeal
majority repudiate. Natanson, the absolute held that Ascherman privilege specifically supra, made a to statements of section during applies medical committee conducted review peer 1973, a different Court district. The of a following year, hospital Sullivant, that the absolute held in supra, Appeal panel Goodley to state subdivisión 2 was applicable similarly privilege ments made analogous during quasi-judicial proceedings of a owned medical committee nongovernmental, privately hospital. decisions, the Ascherman and Legislature Following Goodley additional communicat- 1974 set about to protections persons provide with medical review committees who did not come within the ing peer in those two After decisions. recognized scope privilege holding a number of bills on the the Legislature hearings considering subject, Civil Code “In addition to the enacted specifically providing: 47, there no on the Section shall be monetary liability afforded . on of the communication of information . . account part person staff, medical ... professional society, any hospital, hospital *13 school, board when such communica- or dental or licensing professional fitness or in the evaluation of the tion is intended to aid qualifications, and does not as of the arts character of healing represent practitioner (Italics added.) believed to be true.” matter not true any reasonably 1086, 1, 1974, ch. 2313.) (Stats. § p. that the demonstrates of the 1974 statute history legislative of both the Ascherman and were well aware draftsmen Goodley
legislative of the decisions, the clause and that provision, specifying introductory addition” to the section 43.8 was “in the new by privilege provided that the new inserted to assure accorded section was by privilege of the afforded to remove statute was not protection by interpreted and authorities at both those nongovernmental proceed- governmental Moreover, to the intent in this area if legislative ings.3 any ambiguity who at such would not that witnesses testify it would appear because the is not simply of an absolute the privilege enjoy protection official. or a governmental body introduced, At the include the clause. the did not introductory legislation 3 Asoriginally Committee, to whom the bill was assigned, of the Assembly Judiciary request when, remained after the 1974 it most was removed legislation, assuredly added the sentence to 43.8 final section which Legislature “The immunities this section and specifically provides: provided by affect Section 43.7 shall not absolute which availability of Section Sess., be afforded 47.” 2d (Italics added.) (Stats. Ex. may 1, 24.4, ch. §
Viewed the Ascherman and against background Goodley decisions, and the 1974 measures indicate a legislative clearly intent endorse the to conclusion legislative an absolute from defamation for witnesses who
provides immunity testify review medical board without to quasi-judicial regard whether the medical board is governmental nongovernmental nature. not is the
Finally, only majority’s interpretation with the incompatible purpose provision, judicial past matter, recent authorities and with most on legislative expressions but the effect of the decision to create a between distinction majority and medical review that is governmental nongovernmental unwarranted. In Anton San Antonio illogical totally Community Cal.3d 802 (1977) 19 567 P.2d our 1162], Hospital court was faced with the somewhat issue of whether the analogous Code of Civil Procedure section provisions clearly review of decisions of applied judicial quasi-judicial governmental bodies, medical should also be actions applied reviewing decisions medical authorities. nongovernmental Counsel Legislative which discussed in detail the current state prepared opinion bodies, law concerning status communications privileged analyzing Goodley Natanson and decisions at some informing length legislators decisions had absolute defamation accorded an actions statements against immunity made in relation “a state or local quasi-judicial proceedings professional society Counsel, (June 1974) medical staff of a No. 11581 licensed hospital.” (Ops.Cal.Legis. (Assem. 3760).) Libel Bill Bill on the No. 3633 Assem. No. counsel Relying *14 the the “bill for the opinion, legislators by Assembly digest” prepared Judiciary Committee in states that “The bill defamation actions.” absolute provides to that the the new section would not be read ensure enactment of Subsequently, decisions, or the the Natanson and clause disapproving overruling Goodley introductory discussed in text was added to the bill. 4 The alternative majority’s of the explanation legislation suggesting Legisla — 47, ture believed that section and only governmental applied proceedings section 43.8 to passed extend entities —does not withstand protection private analysis, both because of the clear awareness decision and because the Legislature’s Goodley terms of section 43.8 make it did draw itself clear that the not intend to Legislature any distinctions between bodies and nongovernmental (“professional medical society”) division”). medical bodies board governmental (“licensjng
(cid:127)70 we did review of
In Anton concluded that section 1094.5 govern judicial in the of our such course stating “private” quasi-judicial which out a consideration analysis: point compelling practical “[W]e in the use of section 1094.5 renders procedures particularly appropriate Code, kind. Section 32000 et of the Health and cases of this seq. Safety Law, makes for a the so-called Local District specific provision Hospital the of a in of nature which arise in context matters this public hearing of . . . and clear a district applicability hospital operated by hospital Orthodontists, our decision in Pinsker Coast supra, Society of Pacific 541, a will be that such insures accompanied by hearing It 1094.5 review. would to section related protections requisite procedural believe, that the decisions we to hold be private hospital incongruous, of boards, decision to be based are the same hearing upon required by to some were to identical subject purport, substantially scope of 818.) review.” Cal.3d at (19 interpreta- majority’s p. form different of course, tion of section “incongruous” adopts very in eschewed Anton. result our court specifically between no relevant distinctions
Although majority point boards,5 the review “public” “private” 3), that a distinction (ante, footnote fn. majority imply in one brief 5 Although p. “there because is either be warranted proceedings may between “public” “private” office” or because take oath of bodies any that members private no legal requirement oath,” number of reasons for a . take a testimonial that witnesses . . “it required [is not] medical peer for distinguishing governmental factors a basis neither of these provides proceedings. review from nongovernmental First, to take an be'required district may officials of a hospital some although public office, physician which requires typical no legal provision oath majority point in officer” to be a “public review committee who on a peer serves public hospital office; fact, in an perform such physicians take formal oath of formal sense or to hospitals, medical review boards are on serving identical whether they capacity (See, Uniform Code of CMA-CHA e.g., or local medical associations. private hospitals CMA, Procedures, (c), for Guiding Principles set forth § & subd. Hearing Appeal Uniform Code of Proce- CMA-CHA Relationships, p. Physician-Hospital [hereafter 11-12.) CMA, (1976) ch. subd. dures]; pp. § Constitution and Bylaws Second, board does not of the medical status the governmental nongovernmental under oath. testify whether witnesses at the board’s quasi-judicial proceedings determine be received testimony may At both and nongovernmental proceedings, governmental or a authorized notary public similarly under a oath administered by duly legal Procedure, 3, subd. § Code of supra, individual. CMA-CHA Uniform 2093; Code, 12; Proc., § Gov. (c), § Civ. Code manner, or, like availability the existence of a testimonial Finally, oath — for a more irrelevant to the subpoena power application —is clear, the absolute testimonial make all authorities reason. As established basic not a witness testifying voluntarily, whether or witnesses applies privilege enjoyed by Natanson, (See, Ascherman v. supra, under oath. e.g., not the witness is and whether or *15 Prosser, Torts, (b); Law of Torts com. § Rest.2d 866. See Cal.App.3d (4th generally 777-778; 423-424.) James, 1971) § of Torts pp. & Law Harper ed. pp. witnesses decree a difference in treatment as to the majority sharp legal Pinsker, however, in such who with our testify proceedings. Beginning court has taken the similarities in both function and pains emphasize and bodies in this field (see, responsibilities public private e.g., 553-554; Westlake, 484; Anton, 17 Cal.3d at pp. supra, supra) indeed, and, foundations of the very requirement professional associations conduct derived, in these matters quasi-judicial proceedings out of the service” status of such large part, “public organizations. (Pinsker, Cal.3d at 553-554.) in the supra, pp. majority’s approach instant case demonstrates a lack of to these doctrinal disturbing sensitivity considerations.
A decade the New York Court of was faced ago, Appeals whether statements critical that were made in question of attorney course a local bar association were or were grievance proceeding not an absolute In that the statements protected privilege. concluding an absolute Chief Fuld on behalf of a enjoyed privilege, Judge. explained unanimous court: it is in the interest “Assuredly, encourage those who have of dishonest or unethical conduct on the knowledge part to a Grievance Committee or some lawyers impart knowledge other for If a were to be body designated investigation. complainant to a libel action the accused the effect in subject attorney, many instances well be to deter the might We filing legitimate charges. may assume that on occasion false malicious will be made. complaints But, whatever the on a hardship particular attorney, necessity standards of our bar . . . that there be maintaining high requires forum in which clients or other . . . state their persons may complaints . . . Weintraub, .” (Wiener view, N.Y.S.2d In supra, my these sentiments have at a equal application testimony given quasi- of a local medical judicial hearing society.
I would affirm the trial court defama- dismissing judgment plaintiff’s tion action.
Clark, J., Richardson, J., concurred. for a were denied 1979. Respondents’ petitions May rehearing Tobriner, J., Clark, J., Richardson, J., were opinion should be petitions granted.