Lead Opinion
Opinion
In this case we must decide whether a witness who testifies at a deposition held in connection with a private, contractual arbitration proceeding is subject to being sued in a tort action on the basis of statements made in the course of such testimony, or instead, like any witness in a court proceeding, is immunized from tort liability by virtue of the “litigation privilege” embodied in Civil Code section 47, subdivision
I
The appeal in this case is from a judgment of dismissal entered after the sustaining of a general demurrer. Accordingly, in setting forth the relevant facts for purposes of our review, we are guided by the familiar rules applicable in this setting. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.]” (Serrano v. Priest (1971)
Plaintiffs are the mother, siblings and estate of DeWanda Atkinson, who died in March 1984, at 16 years of age, from hepatitis. Plaintiffs contend that DeWanda contracted this disease as a side effect of a drug, Isoniazid (also referred to as INH), that was prescribed for her because of her exposure to tuberculosis, and that she had ingested on a daily basis during the several months preceding her death.
After DeWanda’s death, plaintiffs instituted a wrongful death action in San Mateo County Superior Court against DeWanda’s health plan and physicians (hereafter referred to collectively as Kaiser), asserting that Kaiser had been negligent in prescribing and monitoring DeWanda’s tuberculosis medication and that such negligence was the cause of DeWanda’s death. Early in 1985, the parties to the civil proceedings stipulated that the action was subject to mandatory arbitration under the contractual provisions of the applicable Kaiser medical and hospital service agreement, and also stipulated that the civil action should be stayed pending arbitration. In view of the stipulation, the superior court, in March 1985, entered an order staying further proceedings in the civil action pending completion of the arbitration.
The arbitration hearing on plaintiffs’ claim against Kaiser began in October 1989. In December 1989, during a break in the hearing, plaintiffs scheduled a deposition with Dr. Conliffe, requesting that he produce documents relating to his review of DeWanda’s case, including articles or writings he had reviewed, consulted, prepared, referred to, or relied upon in his work on the case.
When he appeared for his deposition, Dr. Conliffe produced only his personal resume. In his testimony at the deposition, Dr. Conliffe stated it was his opinion that DeWanda’s death had resulted from viral hepatitis, rather than nonviral hepatitis, and therefore that the use of Isoniazid did not contribute to her death. In response to questions at the deposition, Dr. Conliffe also testified he had reviewed the articles and literature submitted by plaintiffs, but denied recalling or being aware of any medical literature that attributed hepatitis to the use of Isoniazid. When asked specifically about his own contributions to publications, Dr. Conliffe stated only that he had contributed certain “epidemiological information” to an article on “toxicity.”
The complaint does not allege that Dr. Conliffe testified at the arbitration hearing itself or that his deposition testimony was introduced at that hearing. The complaint does allege, however, that Kaiser’s position at the arbitration hearing was consistent with Dr. Conliffe’s deposition testimony, namely, that DeWanda’s death was caused by a form of viral hepatitis and was not drug induced. At the conclusion of the arbitration proceeding in January 1990, a majority of the arbitrators found that, although Kaiser had been negligent in the care and treatment of DeWanda, plaintiffs had failed to prove that the cause of her death was Isoniazid-induced hepatitis. On that basis, the arbitrators ruled in favor of Kaiser.
Sometime after the arbitrators had rendered their decision, plaintiffs’ attorney discovered that in September 1989, three months prior to Dr. Conliffe’s deposition, an article had been published in a medical journal by another physician, reviewing a number of hepatitis deaths in California attributed to Isoniazid, and that Dr. Conliffe, himself, had contributed information concerning DeWanda’s case to the author of the article, allegedly as an example of Isoniazid-induced death. As noted above, the complaint alleged Dr. Conliffe did not disclose the existence of this article in testifying
In May 1990, plaintiffs filed a petition in Alameda County Superior Court seeking to vacate the arbitration award. While that matter was pending, plaintiffs, in August 1990, filed the present separate tort action in Alameda County Superior Court. The two actions, along with the initial action filed by plaintiffs against Kaiser in 1984, were joined in a coordination proceeding (Cal. Rules of Court, rule 1501 et seq.) before the San Mateo County Superior Court. From the record before us, it appears that plaintiffs’ petition to vacate the arbitration award has remained in abeyance pending resolution of the present matter.
In their initial complaint in the present tort action, plaintiffs, as a result of misconduct alleged to have occurred in the arbitration proceeding, sought to recover damages against Kaiser, Kaiser’s attorneys in the arbitration action, and the neutral arbitrator who presided over the arbitration proceeding, but did not name Dr. Conliffe as a defendant. In October 1990, plaintiffs filed a first amended complaint in the action, setting forth a cause of action against Dr. Conliffe on a theory of “concealment and suppression of evidence.” After Dr. Conliffe demurred to the first amended complaint, plaintiffs filed additional amendments to the complaint, adding causes of action against Dr. Conliffe for negligence, intentional and negligent misrepresentation, suppression of fact, civil conspiracy, breach of contract, and intentional infliction of emotional distress. Dr. Conliffe again demurred, asserting that his deposition testimony was privileged under section 47(b). Sustaining Dr. Conliffe’s' demurrer without leave to amend, the trial court dismissed the action against him with prejudice.
On appeal, the Court of Appeal reversed, concluding that the litigation privilege embodied in section 47(b) does not apply to a witness’s testimony or to other statements made in the course of a private contractual arbitration proceeding, but only to testimony and statements made in a court proceeding. Accordingly, the Court of Appeal held that plaintiffs’ action against Dr. Conliffe should be permitted to go forward to trial. Because of the importance of the issue, we granted review, limiting the issue to be argued before this court to the question “whether communications in connection with private arbitration proceedings are protected by the litigation privilege.”
II
Under the current provisions of section 47(b), the Legislature has accorded an absolute privilege or immunity to statements made in a number of
In Silberg v. Anderson (1990)
We then proceeded to set forth the established parameters of the litigation privilege: “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings', (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. [Citations.]” (Silberg, supra,
After thus briefly summarizing the established scope and elements of the privilege, we went on in Silberg to discuss at some length the fundamental purposes served by the privilege. We explained: “The principal purpose of
Noting that the United States Supreme Court, in Briscoe v. LaHue (1983)
Furthermore, we went on in Silberg to point out that the litigation privilege serves a very important additional purpose, namely, ensuring the integrity and the finality of the ultimate resolution of the controversy that has been reached through the litigation process. We explained in this regard:
In light of the purposes served by the litigation privilege, we ultimately held in Silberg that, contrary to a line of prior Court of Appeal decisions, a plaintiff could not avoid the effect of the privilege by alleging and establishing that a communication was not made for the purpose of promoting the “interest of justice.” (Silberg, supra, 50 Cal.3d at pp. 216-219.)
It is apparent, upon even brief reflection, that the purposes of the litigation privilege, as described in Silberg, strongly support application of the privilege to a witness who testifies in the course of a private, contractual arbitration proceeding. Because such a proceeding is designed to serve a function analogous to—and typically to eliminate the need to resort to—the court system (see, e.g., Blanton v. Womancare, Inc. (1985)
Finally, the fundamental interest in protecting the integrity and finality of dispute resolution from “an unending roundelay of litigation” (Silberg, supra,
Ill
Plaintiffs contend, however, that even if the purposes of the litigation privilege embodied in section 47(b)(2) support application of the privilege to statements made in contractual arbitration proceedings, the language of section 47(b)(2) precludes application of the statute to such proceedings. Plaintiffs maintain that if the litigation privilege is to be applied to private arbitration proceedings, the Legislature must amend section 47(b)(2) specifically to so provide. Plaintiffs argument rests upon the premise that the reference in section 47(b)(2) to “any . . . judicial proceeding” does not encompass private contractual arbitration proceedings. As we shall explain, plaintiffs’ argument is refuted both by the governing precedent interpreting the reach of the litigation privilege, and by the history of this privilege.
To begin with, as is made clear in Silberg’s summary of the essential components of the litigation privilege, the reference to “any judicial proceeding” in section 47 has been interpreted in past California cases to apply, not only to court proceedings, but also to those “quasi-judicial” proceedings, such as private arbitration proceedings, that are functionally equivalent to court proceedings. (See Silberg, supra,
In Ribas v. Clark (1985)
In Ribas v. Clark, supra,
The wife subsequently filed an action to set aside the dissolution, alleging that her husband had procured it by fraud. Thereafter, as we explained in
Although the arbitrator ruled in the husband’s favor, he subsequently filed a new lawsuit against his wife’s friend (Clark)—the Ribas v. Clark litigation—seeking damages for violations of criminal statutes prohibiting various forms of eavesdropping, as well as for invasion of privacy and intentional infliction of emotional distress. The trial court sustained a demurrer and dismissed the complaint, and, on appeal, the defendant Clark defended the trial court judgment on two grounds: (1) that her eavesdropping on the plaintiff husband’s telephone conversation did not violate the statutory privacy provisions in question, and (2) that, in any event, the husband was barred, by the provisions of section 47, from obtaining tort recovery against her for the damage he alleged he had suffered as a result of her testimony at the arbitration hearing regarding the overheard conversation.
After concluding initially that Clark’s eavesdropping on the husband’s telephone conversation did violate the relevant privacy statutes (Ribas v. Clark, supra, 38 Cal.3d at pp. 359-363), the court in Ribas turned to the section 47 issue, stating: “Defendant next relies on the privilege accorded to statements published in judicial proceedings. This contention has merit.” (
The court in Ribas then analyzed and rejected this argument, concluding that the purpose of the “judicial proceeding” privilege supported application of the privilege to the claims brought by the plaintiff, explaining: “Underlying the privilege is the vital public policy of affording free access to the courts and facilitating the crucial functions of the finder of fact. [Citation.] ‘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.’ (Prosser, Law of Torts (4th ed. 1971) p. 778.)” (Ribas v. Clark, supra, 38 Cal.3d at pp. 364-365.)
Although the court thus held that the plaintiff was barred, by the litigation privilege, from recovering any damages for any injury suffered as a result of the defendant’s testimony at the arbitration hearing, the court further held that, because the privacy statute authorized a civil award of $3,000 for each violation of the statute despite a party’s inability to prove actual injury, and because, on the facts of that case, a violation of the privacy act—the defendant’s eavesdropping—was alleged to have taken place “during a conversation with [the plaintiff’s] wife prior to, and not in the context of, any judicial proceeding” (Ribas v. Clark, supra,
As this review of the Ribas decision reveals, this court’s explicit statement in Ribas that “an arbitration hearing falls within the scope of this privilege because of its analogy to a judicial proceeding” (Ribas v. Clark, supra,
In addition to asserting that the foregoing statement in Ribas was dictum, plaintiffs argue that the Ribas decision properly can be distinguished from the present case on the ground that the arbitration proceeding at which the defendant in Ribas had testified was a “judicial arbitration” proceeding (see Code Civ. Proc., § 1141.10 et seq.), rather than a private contractual arbitration proceeding (see Code Civ. Proc., § 1280 et seq.), and consequently that our holding in Ribas should be limited only to statements made in the course of a “judicial arbitration” proceeding.
This understanding of the Ribas decision, that it is not limited to “judicial arbitration” proceedings, is confirmed by subsequent Court of Appeal decisions, which have relied upon Ribas in declaring that this privilege applies to statements made in—or in good faith contemplation of—a private contractual arbitration proceeding, treating such proceedings as analogous to judicial proceedings. (See ITT Telecom Products Corp. v. Dooley (1989)
The Ribas case was decided in 1985, and since then the Legislature has amended section 47 on numerous occasions without ever indicating its disagreement or disapproval of the Ribas holding that the “judicial proceeding” or litigation privilege applies to private arbitration proceedings. Thus, even if there was any reason to question the validity of Ribas' s interpretation of section 47 as an original proposition, principles of stare decisis as applied to questions of statutory interpretation would counsel against overturning the Ribas holding at this time.
Furthermore, even if we were to view the issue before us as a matter of first impression, we would conclude that the litigation privilege of section 47(b)(2) applies to statements made in a private, contractual arbitration proceeding.
As we already have discussed (see pt. II, ante), the significant purposes furthered by section 47(b)(2)—i.e., encouraging witnesses to provide open and candid testimony, and preserving the integrity and finality of dispute resolution—strongly support application of the privilege to private arbitration proceedings. Additionally, as will be demonstrated, the history of section 47(b)(2) supports such an application.
The various privileges embodied in section 47 are derived from, and in general represent a codification of, the comparable privileges that originated in, and were developed by, the common law courts. (See, e.g., Saroyan v. Burkett (1962)
The relevant common law privilege applicable to witnesses is set forth in section 588 of the Restatement Second of Torts as follows: “A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.” (Italics added.) In describing the scope of the term “judicial proceeding” as used in this section, comment d to section 588 specifically provides: “Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions, as to which see § 585, Comments c and /. As indicated there, an arbitration proceeding may be included.” (Rest.2d Torts, § 588, p. 251, italics added.)
Section 585 of the Restatement Second of Torts, the section to which comment d of section 588 of the Restatement refers, embodies the related
As these sections reveal, at common law the absolute privilege or immunity accorded both witnesses and officers performing a judicial function were parallel privileges; the scope of the term “judicial proceeding,” to which the witness privilege applied, was understood to include proceedings in which an officer or tribunal exercises judicial functions (and in which the officer thereby is accorded the protection of an absolute privilege). It long has been recognized that, in private arbitration proceedings, an arbitrator enjoys the benefit of an arbitral privilege because the role that he or she exercises is analogous to that of a judge. (See Domke, The Arbitrator’s Immunity From Liability: A Comparative Survey (1971) 1971 U. Tol. L.Rev. 99, 99 [“There is hardly any aspect of arbitration law and practice more settled, both in domestic and international relations, than the immunity of arbitrators from court actions for their activities in arriving at their award.”]; see generally, Domke on Commercial Arbitration (rev. ed. 1991) § 23:01, pp. 351-354.) This rule—immunizing arbitrators in private contractual arbitration proceedings from tort liability—is well established in California. (See Code Civ. Proc., § 1280.1; Baar v. Tigerman (1983)
Furthermore, our holding in Ribas that the litigation privilege applies to testimony at a private arbitration proceeding also is consistent with the great weight of authority in those other jurisdictions that have addressed the issue. (See, e.g., Corbin v. Washington Fire and Marine Insurance Co., supra,
Accordingly, even if we were to view the issue before us as one of first impression, we would conclude that the litigation privilege of section 47(b)(2) applies to a witness who testifies at a private contractual arbitration proceeding.
IV
In reaching a contrary conclusion in this case, the Court of Appeal relied very heavily upon the case of Hackethal v. Weissbein, supra,
As noted, the issue presented in Hackethal v. Weissbein, supra,
Furthermore, to the extent that plaintiffs rely upon Hackethal v. Weissbein, supra,
A brief chronology is instructive. The Hackethal decision, supra,
The lesson conveyed by this legislative action appears clear. By its immediate, unanimous response to Hackethal v. Weissbein, supra,
Thus, in our view, the Hackethal decision, supra,
V
Plaintiffs and several amici curiae proffer a number of additional arguments in support of their claim that the litigation privilege of section 47(b)(2) should not be interpreted as applying to private contractual arbitration proceedings. As we explain, we conclude that none of these additional contentions is persuasive.
A
Plaintiff's claim that the absolute privilege of section 47(b)(2) should not be applied to a witness’s testimony at a private arbitration proceeding because such a proceeding often lacks the solemnity and formal trappings of court proceedings held in a public courtroom. Plaintiffs suggest that the absence of such formality increases the risk that a witness may commit perjury. As this court’s decision in Silberg, supra,
Furthermore, plaintiffs’ argument that the statute should be read to limit the reach of the absolute privilege only to testimony given in the formal setting of a courtroom is refuted also by the legislative response to the Hackethal decision, supra,
B
Plaintiffs next contend that Code of Civil Procedure section 1280.1— which provides that “an arbitrator” in a contractual arbitration proceeding “has the immunity of a judicial officer from civil liability”—reflects a legislative determination not to extend an absolute privilege to statements made by a witness or by other participants in a private contractual arbitration proceeding. Plaintiffs argue that had the Legislature intended to create an immunity from suit for all participants (including witnesses) in contractual arbitration, the Legislature specifically would have included all such participants, and not only arbitrators, within the terms of section 1280.1. As we shall explain, plaintiffs’ reading of the legislative intent reflected in section 1280.1 does not withstand scrutiny.
Code of Civil Procedure section 1280.1 was enacted in 1985 in response to the Court of Appeal’s decision in Baar v. Tigerman, supra,
In Baar v. Tigerman, supra,
Although acknowledging that the arbitral immunity doctrine applied in California, the court in Baar noted that past cases recognizing arbitral immunity “involved disgruntled litigants who sought to hold an arbitrator liable for alleged misconduct in arriving at a decision” (
In response to the decision in Baar, the Legislature enacted Code of Civil Procedure section 1280.1. As initially adopted in 1985, section 1280.1 provided: “An arbitrator has the immunity of a judicial officer from civil liability when acting in the capacity of arbitrator under any statute or contract.” (Stats. 1985, ch. 709, § 1, p. 2341.)
Viewed in context, the intent of the Legislature in enacting Code of Civil Procedure section 1280.1 is evident. Whereas Baar held that the scope of an arbitrator’s immunity is not as expansive as the immunity enjoyed by a judge, section 1280.1 provides that the immunity afforded arbitrators in private arbitration proceedings is equivalent to the immunity “of a judicial officer.” Thus, section 1280.1 reflects a legislative conclusion that the
In light of this legislative history, we believe it is unreasonable to suggest that, because Code of Civil Procedure section 1280.1 applies only to arbitrators, we should infer that the Legislature, in enacting that statute, expressed its intent not to afford a similar immunity to other participants in private arbitration proceedings. Section 1280.1 was enacted in response to a specific appellate decision (Baar v. Tigerman, supra,
Moreover, a 1990 amendment of Code of Civil Procedure section 1280.1 confirms that this provision cannot properly be construed as a limitation upon an otherwise applicable immunity afforded by section 47(b). This 1990 amendment added a second paragraph to section 1280.1, providing: “The immunity afforded by this section shall supplement, and not supplant, any otherwise applicable common law or statutory immunity.” (Stats. 1990, ch. 817, § 2.)
In sum, we conclude that section 1280.1 provides no support for plaintiffs’ contention that the litigation privilege of section 47(b)(2) does not apply to the testimony of a witness at a private contractual arbitration proceeding.
C
Finally, an amicus curiae brief, filed on behalf of several consumer protection organizations, additionally suggests that, as a policy matter, the
First, to the extent the argument rests upon the asserted unfairness of requiring a consumer to be bound by an arbitration clause thrust upon the consumer in a contract of adhesion, the appropriate remedy would appear to be a direct challenge to the validity of the arbitration proceeding itself (see, e.g., Patterson v. ITT Consumer Financial Corp. (1993)
Second, to the extent that amici curiae’s argument rests upon an assumption that withholding the litigation privilege from arbitration proceedings will work to the advantage of individual consumers, we believe the argument is based upon a questionable premise. Because of the relatively low cost and efficiency of the arbitration process, an individual consumer involved in a typical consumer dispute frequently will find an arbitral forum more accessible than the more expensive and cumbersome court system. (See, e.g., Madden v. Kaiser Foundation Hospitals (1976)
Accordingly, in our view, amici curiae’s arguments against applying the litigation privilege to private contractual arbitration proceedings are unpersuasive and provide no justification for departing from the established rule.
VI
For the reasons discussed above, we conclude that statements made in the course of a private contractual arbitration proceeding are protected by the litigation privilege embodied in section 47(b)(2).
The judgment of the Court of Appeal is reversed, and the matter is remanded to the Court of Appeal with directions to affirm the judgment of the superior court.
Lucas, C. J., Arabian, J., and Sills, J.,
Notes
Although the protection afforded by the statute is commonly denominated a “privilege,” which creates a “privileged communication,” section 47(b) does not create an evidentiary privilege that protects a communication from compelled disclosure. (See, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986)
Unless otherwise specified, all section references are to the Civil Code.
Section 47(b) currently provides in relevant part: “A privileged publication or broadcast is one made: H] . . . (b) In any (1) legislative or (2) judicial proceeding, or (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 . . . .”
At the time relevant to Silberg, section 47(2) read in pertinent part: “A privileged publication or broadcast is one made-H] ...[$] 2. In any ... (2) judicial proceeding
In Briscoe v. LaHue, supra,
In addition, the court noted in Briscoe that “some courts expressed concern that, in the absence of a privilege, honest witnesses might erroneously be subjected to liability because they would have difficulty proving the truth of their statements. The result seemed inappropriate [to these courts] in light of the witness’ duty to testify. [Citations.]” (
This reference to “extrinsic fraud” apparently relates to the narrow doctrine permitting a collateral attack on a judgment that has been obtained by “extrinsic fraud,” i.e., under circumstances in which “the aggrieved party [has been] deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” (8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 204, p. 602.) The court in Silberg explicitly recognized that a “fraudulent communication” or “perjured testimony" made in the course of a judicial proceeding is absolutely privileged and does not provide a basis for avoiding the finality of the decision made in the litigation process itself. (Silberg, supra,
“Judicial arbitration” is a term of art that refers to the procedural scheme set forth in section 1141.10 et seq. of the Code of Civil Procedure. Although there are a number of
As originally enacted in 1872, section 47 provided in relevant part: “A privileged publication is one made: [J] . . . [J] 2. 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.” In 1874, the pertinent portion of section 47 was amended to read: “A privileged publication is one made: [$ . . . [1] 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law . . . .”
Although section 47 thereafter was amended at various times to change the numerical designations within the provision, the only additional substantive change in the pertinent portion of section 47 occurred in 1979, when the subdivision currently designated (b)(4)— relating to proceedings reviewable by writ of mandate—was added in response to this court’s decision in Hackethal v. Weissbein (1979)
Because the statements at issue in the present case were made in the course of a private contractual arbitration proceeding authorized by California’s general arbitration statutes (see Code Civ. Proc., § 1280 et seq.), our holding applies to testimony given in such a proceeding. We have no occasion in this case to determine whether the litigation privilege applies to statements made in the course of “alternative dispute resolution” proceedings other than those involving arbitration.
Moreover, the Legislature specifically has encouraged the use of arbitration clauses in the type of medical services contract involved in the present case (see Gross v. Recabaren (1988)
Presiding Justice, Court of Appeal, Fourth Appellate District, Division Three, assigned by the Acting Chairperson of the Judicial Council.
Dissenting Opinion
I respectfully dissent. I would affirm the judgment of the Court of Appeal which, in my view, correctly held that the allegedly perjurious statements of defendant were not privileged communications.
The majority hold that the “litigation privilege,” one which immunizes libel, perjury, and other tortious conduct by participants and witnesses in judicial proceedings against civil liability, applies to witnesses and other participants in contractual arbitration proceedings. I cannot join this judicial expansion of a statute which, but for this court’s legislative efforts, one might have believed to be clear on its face.
Two things should be made clear. First, the communications privilege created by the Legislature was for communications made in a judicial proceeding. (Civ. Code, § 47, subd. (b)(2).)
Today, when a statute, not the common law, governs immunity from suit in this state, a decision to extend immunity to witnesses is a prerogative. Unless it is compelled by constitutional mandate or the issue before it falls within the inherent power of the court over judicial administration and procedure, the court has no power to create immunities in an area in which the Legislature has spoken. For example, this court has no authority to recognize nonstatutory evidentiary privileges, the class of privileges which may be asserted to maintain confidentiality of communications. (Mitchell v. Superior Court (1984)
In areas in which the Legislature has created a limited statutory immunity, the court must presume that the Legislature has weighed the competing considerations in defining the scope of that immunity. When, as here, the Legislature has acted, it is inappropriate for the court to recognize preexisting nonstatutory immunities or to expand the statutory immunity unless it is clear that the Legislature did not intend the statutory immunity to be exclusive. (Slaughter v. Friedman (1982)
In their eagerness to shift dispute resolution from the courts to arbitration the majority ignore the differences between contractual arbitration and judicial proceedings and engage in assumptions unsupported by the record or
I
The Litigation Privilege
The statute, not what the majority think the law should be, is controlling. In that part of section 47 on which the majority bases its holding that the defendant is immune from any suit arising out of the deposition testimony he gave in this contractual arbitration proceeding, the Legislature provided: “A privileged publication or broadcast is one made: [f] . . . ffl] (b) In any . . . (2) judicial proceeding . . . .” (Italics added.)
The majority candidly acknowledge that it was the court, not the Legislature, which expanded that grant of immunity to cover any communication made in the course of, or in anticipation of, litigation even though it is not made in a “judicial proceeding” and does not involve either the court or its officers. (Maj. opn., ante, pp. 640-641; Silberg v. Anderson (1990)
I do not believe that statement has precedential value however. “When ... a decision treats an issue in a ‘summary and conclusory’ manner, and is ‘virtually devoid of reasoning,’ its authoritative status is undermined. (City of Berkeley v. Superior Court (1980)
I do not dispute the majority’s statement of the purpose underlying the immunity granted by subdivision (b)(2) of section 47. That purpose is to ensure that litigants and witnesses have free access to the court, and to encourage frank and full testimony, all of which might be compromised if the parties and witnesses were threatened by the possibility of a lawsuit based on communications necessary to prosecution of an action. Arbitration is increasingly being used to deny access to the court, however. Extending the litigation privilege to private contractual arbitration encourages institutional parties to abandon the judicial system. It does nothing to ensure access to the court for consumers and other individuals on whom arbitration agreements are imposed, but who would otherwise choose judicial proceedings over arbitration.
The majority fails to acknowledge, moreover, that while the deterrent effect of a possible action for libel and/or perjury may not be essential to the fundamental truth-finding function to which legal actions are directed, the same cannot be assumed in private contractual arbitration. The Legislature may well have concluded that trial and appellate procedures inherent in a legal action are adequate to ensure both that the truth is ascertained, thus protecting the litigants and others who might be injured by libelous or perjurious statements of parties and witnesses, and that the credible evidence is sufficient and the law correctly applied to the facts on which the action is
Since the majority do not address the factors that inform the legislative decision to create immunity, I do so.
1. Foremost among the features which deter perjury in a judicial proceeding is the fact that a judicial proceeding is a public proceeding. The trial is open to the press and public and a record of the proceeding is available to the press and the public. Since litigants and witnesses are aware that their statements are subject not only to cross-examination and impeachment, but also to public scrutiny, the possibility that perjury will be exposed acts as a deterrent to perjury.
2. The judge and jury are neutral decision makers. Neither is dependent upon the parties to litigation for income. This neutrality ensures, to the greatest extent possible, that perjury will be recognized and a just decision rendered.
3. Witnesses are sworn to tell the truth.
4. Discovery is available to the parties. The ability to discover the evidence upon which the opponent’s case rests enables the parties to prepare effective cross-examination and to obtain and present impeaching evidence.
5. The trier of fact is required to follow the law, and review for errors of law or insufficiency of credible evidence is available by appeal.
The Legislature has determined that those protections are sufficient to warrant denying a litigant the right to a civil action against a perjurious witness. It has not done so with regard to arbitration for good reason. That reason is ¡that comparable protections are not guaranteed in private contractual arbitration. By contrast:
1. Arbitration proceedings are private. None of the formality of a judicial proceeding surrounds an arbitration hearing. Rules governing judicial procedure are not applicable. (Code Civ. Proc., § 1282.2, subd. (d).)
2. The arbitrator, or arbitrators, are dependent upon the parties for their income. They are not required by law to take an oath of fairness and*664 impartiality. Institutional litigants whose contracts relegate all disputes to arbitration are the major source of income for many arbitrators. Many serve repeatedly as arbitrators for institutional clients. (See, e.g., Kaiser Foundation Hospitals, Inc. v. Superior Court (Cobum) (1993)19 Cal.App.4th 513 [23 Cal.Rptr.2d 431 ]; Neaman v. Kaiser Foundation Hospital (1992)9 Cal.App.4th 1170 [11 Cal.Rptr.2d 879 ]; see also, Note, The Impression of Possible Bias: What a Neutral Arbitrator Must Disclose in California (1993) 45 Hastings L.J. 113.) Neutral decisionmaking is not, and cannot be, guaranteed under these circumstances. The likelihood that the testimony of a witness who regularly appears on behalf of an institutional client will be perceived as perjurious is necessarily diminished.
3. Witnesses need be sworn only on request of a party and the rules of evidence do not apply. (Code Civ. Proc., § 1282.2, subd. (d).)
4. Discovery is not guaranteed. Depositions are available only as evidence, not for discovery purposes, except in matters involving personal injury or death, and then only if the arbitrator grants a party’s application. (Code Civ. Proc., §§ 1283, 1283.05.) Only in actions involving personal injury or death, or claims of damage in excess of $50,000, may a party demand that the other party provide a list of witnesses prior to the hearing. (Code Civ. Proc., § 1282.2, subd. (a)(2).) Failure to list a witness is not a bar to admission of that witness’s testimony. (Code Civ. Proc., § 1282.2, subd. (a)(2)(E).)
The likelihood that a party will be able to mount an effective cross-examination when the nature of a witness’s proposed testimony is not known prior to the hearing is significantly reduced, as is the ability of the party to marshal other evidence to counter that testimony at the hearing.
5. No record need be kept. The content of a witness’s testimony is not preserved' and thus not open to posthearing scrutiny by third parties. A witness may therefore give conflicting testimony in separate arbitration proceedings without fear of exposure.
6. No appellate or any judicial review is available for insufficiency of credible evidence. The ruling of the arbitrator is final insofar as the factfinding process is involved. (Moncharsh v. Heily & Blase (1992)3 Cal.4th 1 , 9-11 [10 Cal.Rptr.2d 183 ,832 P.2d 899 ].)
The assertion of the majority that private contractual arbitration is comparable to a judicial proceeding is, in the end, based only on its purpose of adjudicatory dispute resolution. What is omitted in this reasoning is any
There is, therefore, no single or even standard format for private contractual arbitration. None of the safeguards and procedures available to a party in a judicial proceeding to expose false testimony are guaranteed in private contractual arbitration. Although cross-examination may be assumed to be permitted in all such proceedings, it is not cross-examination by an attorney or party who is informed by discovery of impeaching evidence.
The majority nonetheless withdraw from persons forced into arbitration the only meaningful deterrent to perjury, an action against the perjurious witness whose misconduct may have denied them recovery or may have resulted in the unjust imposition of liability upon the party. Only the Legislature has the power to deny an individual the right to a civil action for such injury.
The court has repeatedly recognized this limitation on its authority. Addressing the limited statutory privilege for libel, we rejected any judicial expansion, stating: “[T]he Legislature has not as yet adopted the section 592A [of the Restatement Second of Torts] privilege .... We have held that all questions regarding the applicable privileges in libel actions were resolved by the adoption of section 47. (Albertson v. Raboff(1956)
More recently, the court again declined to expand a statutory privilege in Brown v. Kelly Broadcasting Co. (1989)
Neither the necessity for expansion of the section 47 communication privileges nor the possible need to extend those privileges to arbitration has been overlooked by the Legislature. It has created numerous additional communication privileges since section 47 was enacted in 1872. (See, e.g., §§ 43.8 [immunity for communication on evaluation of practitioner of healing arts], 47, subd. (b)(4) [communications in proceedings authorized by law and reviewable by mandate], 48.5 [immunity for owner, licensee, or operator of broadcasting station for defamation broadcast over radio by agent or employee], 48.7 [immunity against libel or slander action while child abuse charges pending for report of abuse]; Bus. & Prof. Code, § 2318 [communication of information to licensing board of information regarding possible drug dependence, alcohol abuse, or mental illness of licensee].)
The addition of subdivision (b)(4) to section 47 demonstrates that the Legislature is responsive when it believes that statutory communication immunities should be expanded for reasons of public policy. As the majority recognize, that provision was added in response to this court’s holding in Hackethal v. Weissbein (1979)
The Legislature did not create immunity for, or thereby recognize, common law immunity of, witnesses in private contractual arbitration proceedings, however. The legislative response was a “legislative policy determination that in view of overwhelming court congestion, complete immunity was essential to encourage persons to serve as arbitrators.” (Coopers & Lybrand v. Superior Court (1989)
It is no answer to say that the parties have agreed to arbitrate, and to accept the loss of the right to a civil tort action for perjury, when standard form consumer contracts include an arbitration provision that is often neither read nor understood by the consumer. (See, e.g., Patterson v. ITT Consumer Financial Corp. (1993)
Although not relevant to the question of whether section 47, subdivision (b)(2), encompasses private contractual arbitration, response must be made to the majority’s assumption that arbitration is less costly than a judicial proceeding. It most certainly is not to the consumer who, but for the arbitration clause in a contract, would resolve a claim in small claims court, or represent himself or herself in the municipal or superior court. Arbitrator’s fees for one leading arbitration service in this state are typically in the $350 to $500 per hour range! (Reuben, King of the Hill (Feb. 1994) 14 Cal.Law. 55.) In addition, there may be filing or service fees with the arbitration service, fees for discovery, and fees for written findings and expedited hearings. (See, e.g., Patterson v. ITT Consumer Financial Corp., supra,
The Official Proceeding Privilege
I would also reject the argument of defendant and the several amici curiae representing groups and organizations which utilize contractual arbitration as a preferred means of dispute resolution that communications made in the course of private contractual arbitration fall within the privilege established by subdivision (b)(3) of section 47 for official proceedings. Private contractual arbitration is not an official proceeding within the contemplation of that subdivision.
In subdivision (b)(3) of section 47, the Legislature has created immunity for communications “in any other official proceeding authorized by law.” Section 47 was enacted as part of the Civil Code in 1872. At that time, the “official proceeding” privilege (then designated section 47, subdivision 2(3)) was described simply as one applicable to a communication made while “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 provision was amended in 1874 to describe the proceedings in which communications were privileged with greater specificity. Pursuant to the 1874 amendment a privileged communication was one made only in “any legislative or judicial proceeding, or in any other official proceeding authorized by law.” (§ 47, subd. Two; Code Amends. 1873-1874, ch. 612, § 11, p. 184.) Although other parts of section 47 have been amended in the interim, the language of subdivision 47(b)(3) has not been changed since 1874.
At the time of its enactment in 1872, section 47 included, in what was then the fourth subdivision, a privilege (see now § 47, subd. (d)) which complements the official proceedings privilege, a privilege for news reports of statements made in the proceedings covered by the second subdivision. That fourth subdivision extended the privilege to a publication made in “a fair and true report in a newspaper, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.”
At the same time the Legislature included a similar privilege in the Penal Code of 1872. As enacted in that year, former section 254 of that Penal Code provided:
“No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate*670 in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication.”
The notes of the Code Commissioners who drafted the Civil Code offer no insight into their understanding of the term “official proceedings.” The explanatory authority cited referred only to the privilege for communications to interested persons which was then found in former subdivision 3 of section 47, and to a judicial proceeding.
Like section 47, subdivision (b)(3), which is among the Civil Code provisions addressed to civil actions for defamation, former section 254 of the Penal Code was among the provisions which then permitted criminal prosecution for libel. The inclusion in both the Civil Code and the Penal Code of a privilege for news reports of statements made during “public” official proceedings strongly suggests that although that “public” limitation was not express in subdivision 2 of the original section 47, the legislative intent was to create a privilege applicable only to statements made in public, i.e., governmental, official proceedings.
I recognize the rule of statutory construction “ ‘that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” (Brown v. Kelly Broadcasting Co., supra,
The court reached the same conclusion after reviewing the history of section 47 in Hackethal v. Weissbein, supra,
The Legislature apparently accepted that understanding of section 47, as it then amended subdivision 2, now subdivision (b), of that section to extend the absolute privilege to any proceedings reviewable by writ of mandate. (Stats. 1979, ch. 184, p. 403; see Wallin v. Vienna Sausage Manufacturing Co. (1984)
Defendant acknowledges that Hackethal v. Weissbein, supra,
The flaw in that argument lies in its failure to recognize that the basis for the court’s holding in Hackethal v. Weissbein, supra,
I agree with the conclusion of the Court of Appeal that Hackethal is dispositive of defendant’s claim that the official proceeding privilege immunizes his statements and conduct.
I would affirm the judgment of the Court of Appeal.
Mosk, J., and Kennard, J., concurred.
Appellants’ petition for a rehearing was denied June 30, 1994. Werdegar, J., did not participate therein. Mosk, J., Kennard, J., and Baxter, J., were of the opinion that the petition should be granted.
All statutory references are to the Civil Code unless otherwise indicated.
Article VI, section 14, mandates: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.”
That requirement was not part of the 1850 Constitution. It was added as part of section 2 of article VI in the Constitution of 1879 for the express purpose of ensuring careful consideration of legal issues and providing the guidance which the court’s analysis and reasoning would afford the bench and bar of this state. At the time the written opinion requirement was added, the Constitution provided: “In the determination of causes, all decisions of the Court in bank or in departments shall be given in writing, and the grounds of the decision shall be stated.” (Cal. Const of 1879, art. VI, § 2.)
When the requirement was proposed by the Committee on the Judiciary during the 1878-1879 Constitutional Convention, Delegate Wilson explained its purpose to the delegates sitting as a Committee of the Whole. “The importance of requiring the Court to give written opinions cannot be overrated. They . . . become the settled law of the State, and are precedents for subsequent cases, ...[!]... [T]hroughout the United States the Courts are required to deliver written opinions, stating the grounds of the decision, as we have provided in this section. Undoubtedly it will insure a careful examination of the cases, and result in well considered opinions, because they must come before the jurists of the country and be subjected to the severest criticism. ... [1] ... [1] ... Of course, there will always be some cases disposed of without written opinions. Sometimes a case goes off on some formal motion, or is dismissed on a technical question of practice. But I am speaking generally, of cases argued and submitted upon their merits, and there the decision is of little account as
During the subsequent debate on the provisions of article VI affecting the Supreme Court, Mr. Wilson again explained: “[0]pinions must be written by a Court of last resort as matters of precedent. It is a very different thing from sitting down and saying that the judgment of the Court below is reversed or affirmed without giving any reasons, because when that is published, nobody knows whether that decision is right or wrong. But when the Judge has to sit down and write an opinion, or . . . they must give their opinion in writing, stating the grounds of the decision, then they are brought before the whole bar of the State, and they are bound to present themselves in a position where law and reason sustain the adjudication.” (3 Debates & Proceedings, Cal. Const. Convention 1878-1879 at p. 1455.)
The doubtful status of the party concession in Ribas v. Clark, supra,
Section 3281: “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”
Some “imposed” arbitration agreements may not be avoided on that ground. The Legislature has provided that a contract for medical services is “not a contract of adhesion, nor unconscionable nor otherwise improper” if it complies with statutory requirements which attempt to ensure notice. (Code Civ. Proc., § 1295, subd. (e).)
In their paper for the Judicial Administration Division of the American Bar Association, James L. Guill and Edward A. Slavin, Jr., expressed similar concerns, concluding that alternative dispute resolution may be “highly inappropriate” when parties are unequal in financial resources or experience. They suggest that individual plaintiffs should not “be forced to submit their claims to someone who may be biased, or less than qualified, or unethical, or who for lack of statutory or regulatory control is less accountable and whose decisions may not be subject to judicial review.” (Guill & Slavin, Rush to Unfairness: The Downside of ADR, supra, 3 Judges’ J. at p. 10.)
The authors express particular concern that the absence of judicial review removes “a major bulwark against arbitrary and capricious decisions, prejudicial error, inequity, and inequality.” (Guill & Slavin, Rush to Unfairness: The Downside of ADR, supra, 3 Judges’ J. at p. 12.)
See Brown v. Kelly Broadcasting Co., supra,
The privilege for news reports of statements made in official proceedings was taken from the New York Civil Code which at that time provided in section 25: “No person is liable for publishing a fair and true report in a newspaper, of any judicial, legislative or other public official proceeding, or of anything said in the course of the same, except upon extrinsic proof of actual malice.”
The New York Commissioners of the Code cited Lewis v. Chapman (1857)