Lead Opinion
Opinion
We granted review in this case to consider whether tort liability may be imposed for statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person. As we shall explain, we agree with the trial court, the Court of Appeal, and the great weight of authority in this state in concluding that such statements are privileged pursuant to Civil Code section 47, subdivision (b) (section 47(b)),
I
Plaintiff Lydia Ortiz Hagberg, a Hispanic woman, opened an account at a Pasadena branch of California Federal Bank, FSB (Cal Fed). A few months later she appeared at this branch to cash a check made out to her by the commercial institution Smith Barney. She presented her California driver’s license, her Cal Fed ATM card, the Smith Barney check, and her Smith Barney account summary, along with the envelope in which she had received the check. The teller, also apparently a Hispanic woman, suspected that the check was a counterfeit and brought it to her supervisor, Nolene Showalter, apparently a person of European descent. Showalter agreed that the check had a suspicious appearance, in that some of the print was “fuzzy and unclear” or “smudged” and part of the address line was missing—features not commonly found on Smith Barney checks. Showalter contacted Smith Barney by telephone, was informed that the check was not valid, and then contacted Cal Fed’s corporate security office. The regional security manager, Gary Wood, instructed her to telephone the police, and she did so. A transcript of the telephone call to the police discloses that Showalter explained that Hagberg had attempted to negotiate a counterfeit check. The police dispatcher asked questions concerning the identity and appearance of the person attempting to cash the check, apparently in order to assist the police in determining whom they should contact at the bank. Showalter answered these questions and also volunteered that the bank’s corporate security officer “just wants somebody to hang on to her [until] he can check this out. Because our first call to them, they said it was counterfeit . . . . [f] And we’ve taken a lot of losses.” The dispatcher asked the person’s ethnicity, and Showalter answered, “White— well, maybe Hispanic; kind of reddish hair, short.”
While Showalter spoke to the police dispatcher, Wood, the bank’s regional security manager, himself telephoned Smith Barney and was informed that the check was valid and that the information earlier received by Showalter from Smith Barney was erroneous. This information was relayed to Show-alter, who interrupted her statement to the police dispatcher with the news. She informed the dispatcher that Cal Fed no longer required the assistance of the police and that the bank was “getting into trouble here with this.” The dispatcher responded that the police were already at the bank, and when Showalter looked up, she could see a police officer approaching Hagberg. Showalter asked the dispatcher if she should tell the police officers to leave, and the dispatcher told her to do so. Showalter stated in her declaration that she “immediately walked over to the teller window as the police officers were approaching the customer” and that she “reached over the teller’s
Hagberg testified at her deposition that a police officer drew her away from the teller’s window, spread her legs, patted her down, and handcuffed her. Her handbag was searched, and the officer asked her whether she was in possession of weapons or stolen property and whether she was driving a stolen vehicle. Hagberg testified that, as the police were placing her under arrest, she looked at the Hispanic teller who had been serving her, and that the teller announced to Hagberg that Hagberg “looked like a criminal.” Hagberg’s ordeal ended 20 minutes later, when she was released. The record contains a transcript of Hagberg’s telephone call to Smith Barney, evidently later the same day, in which the Smith Barney representative explained that Smith Barney had made a mistake in informing Cal Fed that the check was not valid. In this telephone call, Hagberg evidenced distress over her detention.
On September 9, 1999, Hagberg filed a complaint against Cal Fed and 100 unnamed parties as defendants.
Cal Fed filed its answer on October 15, 1999, and a motion for summary judgment on July 27, 2000. In support of its motion for summary judgment, Cal Fed contended that its statements to the police concerning suspected criminal activity by Hagberg were subject to the absolute privilege established by section 47(b). Cal Fed also claimed immunity under federal law, citing title 31 United States Code section 5318(g), part of the so-called safe harbor provision of the Annunzio-Wylie Anti-Money Laundering Act. Cal Fed also claimed that, even if it were not entitled to immunity for privileged communications under state and federal law, Hagberg had not presented any facts evidencing conduct in violation of the Unruh Civil Rights Act. In support of its motion for summary judgment, Cal Fed proffered Showalter’s declaration, portions of plaintiff’s deposition testimony, copies of Cal Fed’s interrogatories and plaintiff’s answers to interrogatories, and the transcript of a recording of the telephone conversation between Showalter and the police dispatcher, as noted above.
The evidence indicated that although Hagberg believed that the only explanation for her treatment was racial or ethnic prejudice on the part of bank employees, the only evidence she possessed in support of this theory was the circumstance that she was of Hispanic descent and the facts noted above regarding the treatment she received at the time of the incident. On August 10, 2000, plaintiff filed her opposition to the motion for summary judgment. In support, plaintiff presented additional testimony from her deposition, a transcript of a recordings of telephone calls made during the incident, a photocopy of the questioned check, the Showalter declaration, and a copy of Cal Fed’s written loss prevention procedures. Her deposition
Plaintiff filed motions for continuance to permit further discovery, but they were denied. On August 24, 2000, the trial court granted defendant’s motion for summary judgment. It explained at the hearing on the motion for summary judgment that the absolute privilege established by section 47(b) applied to Cal Fed’s statements to the police concerning suspected criminal activity. It declared: “Although it is subject to abuse, it seems to me the right of a private citizen, or a public citizen for that matter, to contact the police and advise the police of what they suspect to be criminal activity must be absolute and must be without threat of recourse.” The court found support for its conclusion in a decision by this court (Silberg v. Anderson (1990)
On appeal, the Court of Appeal affirmed the trial court’s order granting summary judgment in favor of Cal Fed, agreeing with the lower court that the privilege established by section 47(b) applied to Cal Fed’s communication with the police concerning its suspicion that Hagberg was attempting to negotiate a counterfeit check.
The Court of Appeal, like the trial court, began its analysis with this court’s decision in Silberg, supra,
The Court of Appeal pointed to the many cases emanating from the Courts of Appeal that hold that the absolute privilege of section 47(b) “shields testimony or statements to officials conducting criminal investigations.” These cases, it observed, recognize the importance of ensuring an “open channel of communication” between citizens and the police. With regard to a single Court of Appeal decision that reached a contrary result (Fenelon v. Superior Court (1990)
In response to plaintiff’s claim that statements are not subject to an absolute privilege when their utterance violates a statute such as the Unruh Civil Rights Act, the Court of Appeal pointed to other instances in which causes of action defined by statute—statutes carrying out important public policies—also are subject to the privilege established by section 47(b). (Citing, e.g., Rubin v. Green (1993)
We granted Hagberg’s petition for review to resolve an apparent conflict in the decisions of the Courts of Appeal. Hagberg urges us to adopt the minority view, pointing out that the ability to summon the police to accuse another of a crime is a potent weapon that is subject to abuse and that can cause great injury to reputation and other interests of innocent persons. She also reiterates her claim that even if the privilege is absolute in most instances when a citizen contacts the police to report suspected criminal activity, the Unruh Civil Rights Act, with its important goal of eliminating discrimination on the basis of race and other classifications, creates an exception when the communication violates the provisions of that act.
Cal Fed, for its part, first vigorously maintains that it is entitled to absolute immunity under 31 United States Code section 5318(g)(3), a federal provision that imposes a duty on banks to report suspected criminal activity of a specified nature to law enforcement authorities and, specifically preempting state law, provides absolute immunity for such reports. Cal Fed urges that even if we were to conclude that state law extends only a qualified privilege with respect to plaintiff’s claims, state law would be preempted by the more expansive federal immunity provision.
With respect to section 47(b), Cal Fed urges that this court, like the Court of Appeal and the trial court in this case, conclude that the better view is expressed by those Court of Appeal decisions holding that section 47(b) establishes an absolute privilege for statements made by a citizen who contacts the police to report suspected criminal activity. With respect to plaintiff’s Unruh Civil Rights Act claim, Cal Fed contends that, by its terms, the act does not establish an exception to section 47(b). Cal Fed also asserts that even the violation of a constitutional interest sometimes may fail to enjoy a remedy in damages because of certain immunities and privileges, so that it is not anomalous to extend the privilege to communications such as those alleged in the present case.
II
Section 47 establishes a privilege that bars liability in tort for the mating of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made “[i]n 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 [statutes governing writs of mandate],” with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an “absolute” privilege, and it bars all tort causes of action except a claim for malicious prosecution. (See
Section 47, subdivision (c) extends a qualified privilege to other communications. Under section 47, subdivision (c), a qualified privilege, that is a privilege that applies only to communications made without malice, applies to “communications] ... 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, subd. (c).) Hagberg contends that Cal Fed’s communication to the police at most fell into this category of qualified privilege, so that she should be entitled to establish tort liability if she can demonstrate that the communication was made with malice.
We have explained that the absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to “ ‘assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ ” (Silberg, supra,
Although the statute originally was understood as applicable only to the tort of defamation, our cases, beginning with Albertson v. Raboff (1956)
In its application to communications made in a “judicial proceeding,” section 47(b) is not limited to statements made in a courtroom. Many cases have explained that section 47(b) encompasses not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit. (See Rubin v. Green, supra, 4 Cal.4th at pp. 1194-1195.) As we have said, “it is late in the day to contend that communications with ‘some relation’ to an anticipated lawsuit are not within the privilege.”
By the terms of the statute, statements that are made in quasi-judicial proceedings, or “any other official proceeding authorized by law” (§ 47(b)), are privileged to the same extent as statements made in the course of a judicial proceeding. By analogy to cases extending the litigation privilege to statements made outside the courtroom, many cases have held that the official proceeding privilege applies to a communication intended to prompt an administrative agency charged with enforcing the law to investigate or remedy a wrongdoing. As we summarized in Slaughter v. Friedman (1982)
In Kashian v. Harriman (2002)
In another example, the court in Wise v. Thrifty Payless, Inc. (2000)
Another case applied the privilege in the context of a whistleblower statute that encourages citizens to report waste and malfeasance on the part of governmental authorities. (Gov. Code, § 8547.1.) As the court in Braun v. Bureau of State Audits (1998)
Numerous additional cases agree that the section 47(b) privilege applies to complaints to governmental agencies requesting that the agency investigate or remedy wrongdoing. (See Fremont Comp. Ins. Co. v. Superior Court (1996)
By the same token, the overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under section 47(b). These cases explain that a statement urging law enforcement personnel to investigate another person’s suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies. Reasoning that such communications are at least preparatory to “any other official proceeding authorized by law,” (ibid.) the majority of decisions in the Courts of Appeal have held such statements to be shielded by an absolute privilege. We find these decisions to be persuasive, as we shall explain.
As the Court of Appeal in the present case observed, the leading case in this area is Williams v. Taylor (1982)
The Court of Appeal in Williams determined that the employee’s slander and emotional distress claims failed because the statements to the police were subject to the section 47(b) privilege: “In our view,” the appellate court stated, “a communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a communication made after an official investigation has commenced. [Citation.] After all, ‘[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.’ [Citation.] In order for such investigation to be effective, ‘there must be an open channel of communication by which citizens can call. . . attention to suspected wrongdoing. That channel would quickly close if its use subjected the user to a risk of liability for libel. A qualified privilege is inadequate under the circumstances. . . . [f] The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential.’ [Citation] And, since the privilege provided by section 47 [(b)] is absolute, it cannot be defeated by a showing of malice.” (Williams, supra, 129 Cal.App.3d at pp. 753-754.)
We cited Williams with approval in Slaughter v. Friedman, supra,
Many other decisions are in accord with Williams, supra,
In Hunsucker v. Sunnyvale Hilton Inn (1994)
One Court of Appeal decision disagreed with these authorities, but its analysis has been rejected in numerous subsequent decisions. In Fenelon, supra,
The Fenelon majority cited a number of California cases in support of its assertion that the unqualified privilege applies solely to statements made in official proceedings in which an administrative or legislative body possesses quasi-judicial power vested in it by statute. The cases cited, however, do not support the proposition that the privilege applies solely when a communication is made during a hearing at which the accused person possesses procedural protections, nor do these cases suggest that a communication intended to prompt an administrative agency to investigate wrongdoing would not be privileged. (See Chen v. Fleming (1983)
The cases cited do not suggest that, to be privileged, the communication must have been made at the time of a quasi-judicial hearing at which the accused person
We are not persuaded by the majority’s analysis in Fenelon, supra,
Although the Fenelon majority pointed to the procedural protections that apply in judicial proceedings or in quasi-judicial administrative enforcement proceedings, it did not explain the many decisions that extend the privilege to communications requesting the initiation of investigation that might lead to such proceedings. As these decisions recognize, statements made in preparation for or to prompt investigation that may result in the initiation of such proceedings fall within the privilege. It is not required that the statement
As for the Fenelon majority’s reliance upon the procedural protections offered once quasi-judicial administrative proceedings commence, as explained by the federal district court in Johnson, supra,
As noted, subsequent decisions have declined to follow the majority’s conclusion in Fenelon, supra,
In the years following the decision in Williams, supra,
Concern that Penal Code section 148.5 provides an inadequate bulwark against false and malicious communications to the police seems overstated. We note the absence of any indication that such malicious communications present a widespread problem. As prior cases have stressed in interpreting section 47(b), the broad application of the privilege serves the important public interest of securing open channels of communication between citizens and law enforcement personnel and other public officials charged with investigating and remedying wrongdoing.
In support of her claim that Cal Fed’s communication with the police in the present case was not subject to the absolute privilege of section 47(b), plaintiff directs our attention to early cases discussing the tort of false imprisonment.
That tort and the crime of false imprisonment are defined in the same way. (Fermino v. Fedco, Inc. (1994)
In support of her claim that a knowingly false or malicious report to the police accusing another person of criminal activity may give rise to civil liability, plaintiff relies on Miller v. Fano (1901)
In our decision in Miller, supra,
As for Fano’s liability, we acknowledged in Miller, supra,
Plaintiff also refers us to Turner v. Mellon (1953)
These cases, however, did not mention, much less analyze, the privilege established by section 47(b). They explored the limits of the common law tort of false imprisonment and the potential for liability as an aider and abettor of an unlawful arrest by police officers. The cases did not consider the issue in the context of a proceeding in which bad faith actually was alleged. The cases also did not distinguish between malicious conduct of a citizen that aided or promoted a peace officer’s unlawful arrest, which might support liability, and pure communication, which would be protected by the statutory privilege. (See Kimmel v. Goland, supra,
Moreover, the cases predated the expansion of the privilege that began with Albertson v. Raboff, supra,
For all these reasons, the cases relied upon by plaintiff do not constitute authority for the proposition that, under the contemporary interpretation of section 47(b), an absolute privilege does not exist, shielding a citizen’s report to the police concerning suspected criminal activity of another person. (Accord, Beroiz v. Wahl, supra, 84 Cal.App.4th at pp. 495-496, fn. 6.)
Plaintiff also points to the decision of the Court of Appeal in DuLac v. Perma Trans Products, Inc. (1980)
Plaintiff next contends that even if we conclude that section 47(b) generally provides an absolute privilege, section 47(b) should not be interpreted to bar liability when it is alleged that a business establishment’s communication to the police concerning suspected criminal behavior was motivated by racial or ethnic prejudice and therefore constituted unlawful discrimination by the business establishment in violation of the Unruh Civil Rights Act (§51 et seq.), an enactment that provides for equal “accommodations, advantages, facilities, privileges, or services in all business establishments” without regard to characteristics such as race, ancestry, or place of national origin. (§ 51, subd. (b).) Although plaintiff alleged in her complaint that Cal Fed had denied her services on the basis of her race or ethnicity and that the branch where she presented the check had an informal policy of singling out persons of certain racial or ethnic backgrounds as “inherently suspicious,” plaintiff’s deposition testimony, which was introduced in connection with the summary judgment motion, demonstrates that plaintiff’s claim primarily was based on inferences plaintiff subjectively drew from her experience on the day she was detained, inferences that appear to have been refuted by the specific evidence Cal Fed presented with regard to its employee’s telephone conversations with Smith Barney and the police, and Cal Fed’s prompt efforts to end the police intervention once the mistake had been identified. Because our review of the record raises a serious question whether the evidence presented in support of and in opposition to the summary judgment motion was sufficient even to raise a triable issue of fact on the question whether Cal Fed or its employees were motivated by racial or ethnic prejudice in their treatment of plaintiff or followed a policy of singling out persons of certain races or ethnic backgrounds for discriminatory treatment, we have concluded that this is not an appropriate case in which to resolve the broad legal question whether proof that a business establishment has called for police assistance (or has a policy of calling for police assistance) based on racial or ethnic prejudice could give rise to liability under the Unruh Civil Rights Act notwithstanding the provisions of section 47(b). (See Cal. Rules of Court, rule 29(b)(3) [on review, this court “need not decide every issue the parties raise or the court specifies”].)
Because we conclude that judgment correctly was entered in Cal Fed’s favor on the basis of the privilege provided by section 47(b), we need not reach Cal Fed’s assertion that it is shielded under the immunity established by federal banking law. (See 31 U.S.C. § 5318(g).)
Ill
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
Kennard, J., Chin, J., and Moreno, J., concurred.
Notes
Statutory references are to the Civil Code unless otherwise indicated.
The complaint also named Primerica Financial Services as a defendant, but because of a settlement entered into between the parties, that entity was not a party to the appeal.
As one court explained, with reference to the many sister-state decisions cited by the Fenelon majority, “eighteen of the nineteen cases merely apply the common law privilege for good faith communication between interested parties ... or similar case law precedent. While the nineteenth case, [citation], did involve the application of a statutorily created privilege, the possibility of an absolute privilege did not arise because the statute at issue explicitly applied only to communications made in ‘good faith.’ [Citations.] []Q In none of the nineteen cases was the scope of a statutory privilege for ‘official proceeding^]’ discussed.” (Johnson, supra,
One decision demonstrates confusion concerning the nature of the disagreement between Williams, supra,
The dissent contends that we “rel[y] on the ‘slim reed’ of legislative inaction” and “virtually ignore]] [our] obligation to interpret the statute.” (Dis. opn., post at p. 379.) Our interpretation of section 47(b), however, relies upon our own broad interpretation of the statute in Silberg, supra,
Cal Fed asserts that support for its position can be found in the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164, et seq.), which requires certain persons (and permits other persons) to report to governmental authorities suspected instances of child abuse and specifically establishes that permissive reporters may be held liable for willfully false reports, but that mandatory reporters are shielded by absolute immunity. (Pen. Code, § 11172, subd. (a).) Cal Fed contends that it would have been an idle act for the Legislature to establish a qualified immunity for permissive reporters, as it did in Penal Code section 11172, subdivision (a), if Hagberg were correct that section 47 itself establishes at most a qualified immunity for citizen reports of criminal activity. (Accord, Johnson, supra,
There is evidence that in enacting the child abuse reporting provisions, the Legislature understood that the general rule was that reports to the police concerning criminal activity were privileged. As noted by Cal Fed and the court in Johnson, supra, 58 F.Supp.2d at pages 1110-1111, it would have been unnecessary to provide for qualified immunity for permissive reporters if the dissent’s interpretation of section 47(b) were the correct one. Further, in 1981, while the Legislature was considering a related measure that added section 48.7 to the Civil Code, the Legislative Counsel’s digest to the bill explained that under existing law, a person who is criminally charged with child abuse may bring a civil action for libel or slander against “the minor, a parent or guardian of the minor, or a witness” except that “there is no liability for libel or slander based on a privileged communication, including a communication intended to initiate or further an official proceeding such as a criminal prosecution.” (Legis. Counsel’s Dig., Assem. Bill No. 42 (1981-1982 Reg. Sess.) 4 Stats. 1981, Summary Dig., pp. 73-74, italics added.)
On balance, however, it would be a mistake to rely too heavily on Penal Code section 11172 in resolving the more general issue of the meaning and proper application of section 47(b). Penal Code section 11172 was part of a comprehensive scheme in which the Legislature sought to increase substantially the reporting of a specific type of crime, but at the same time to provide potential subjects of such increased reporting with explicit civil protection against malicious false reports. (See Stecks v. Young (1995)
The dissent also refers to Education Code section 48902, part of a chapter of the Education Code regulating pupil rights and responsibilities and, specifically, part of an article of that code regulating suspension and expulsion procedures. The provision in question requires school principals and their designees to report specified criminal activity on the part of students to law enforcement authorities in connection with ordering the suspension or expulsion of a student for such activity, and it supplies qualified civil and criminal immunity for doing so. The report required by this statute is to be made by a supervisory public employee as an incident of the employee’s official duty to discipline students. The principal who is required to report is not thereby seeking police intervention; indeed, it appears that in most instances the report to law enforcement will occur only subsequent to the decision to suspend or expel a decision that is the product of a formal or informal due process hearing. Thus, the school principal’s situation is quite distinct from that facing a person who seeks to prompt police intervention or assistance, and this statute does not supply any indication of legislative intent with respect to the application of section 47(b). Again, if the dissent were correct that section 47 supplies only a qualified privilege for reports of criminal activity, it is difficult to understand why the Legislature found it necessary to provide for a qualified privilege under Education Code section 48902.
False imprisonment consists of the unlawful violation of the personal liberty of another person; a false arrest is merely one way in which a false imprisonment may be accomplished— the two are not separate torts. (5 Witkin, Summary of Cal. Law (9th ed.1988) Torts, § 378, pp. 463-464.)
To the extent that language in Miller v. Fano, supra,
Dissenting Opinion
I respectfully dissent. Nothing in the statutory language of Civil Code section
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)
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
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)
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.
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
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)
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).
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
The language of Education Code section 48902, subdivision (d), was added in 1988, or long after Williams, supra,
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)
In addition, Penal Code section 148.5 makes it a misdemeanor to knowingly give
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)
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),
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)