Moore v. Conliffe

Apr. [No. 1994.] S031410. al., et

OPHELIA Y. MOORE Plaintiffs Appellants, CONLIFFE, Respondent. MILTON Defendant and Counsel Associates, Till,

Von Till & F. Von Wilhelm and Dan Stephen Jerry Grimmer for Plaintiffs and Appellants. Hillebrand, Newcomb,

Gail K. Sutro, Brian W. & Madison Pillsbury, Edlund, William I. Walter A. Allan and A. Hearst as Amici on Joseph Curiae behalf of Plaintiffs and Appellants. Richardson, Hamrick,

Kennedy Craddick, P. Mark Palley, Lillian F. Candland & Conti and W. Robert Lamson for Defendant and Respondent. Proskauer, Rose, Mendelsohn, Gibson, Goetz & Steven G. & Drapkin, Dunn Crutcher, Chemick, Thelen, Martin, Richard Johnson & Curtis A. Bridges, Cole, Wo, Ehrman, McAuliffe, Bomse, Julia C. Heller White & Stephen V. Hecker, Fletcher, Peter S. Laurel E. Horvitz & R. David Levy, Barry Levy, Hasen, S. Ettinger, Richard L. William M. Pfeiffer and Judith K. Herzberg as Amici Curiae on behalf of Defendant and Respondent.

Opinion

GEORGE, In this we case must decide J. whether a witness who testifies at a held in deposition connection with a private, contractual arbitration subject is sued on being tort action the basis of instead, statements made in the course of such like testimony, any witness in a court proceeding, immunized from tort liability by virtue of the “litigation privilege” embodied in Civil Code section subdivision in view of the 47(b)).1 purpose As we shall (b) (hereafter explain, decisions numerous California and the history litigation privilege we conclude that statutory provision, the relevant applying interpreting arbitration contractual private, the course of statements litigation privilege. are protected

I after entered from a of dismissal judgment this case is appeal forth setting demurrer. Accordingly, of a sustaining general review, familiar guided by our we are relevant facts for purposes all admitting demurrer as “We treat the setting. rules this applicable contentions, deductions, or conclu facts but not pleaded, material properly be which may We also consider matters fact or law. sions of [Citation.] (1971) 5 Cal.3d (Serrano v. Priest noticed. judicially [Citation.]” 1187].) 41 A.L.R.3d 487 P.2d Atkinson, mother, who DeWanda and estate of siblings Plaintiffs are the contend that Plaintiffs age, hepatitis. died in at 16 years March (also effect Isoniazid drug, this disease as a side DeWanda contracted her exposure her INH), was because prescribed referred to as tuberculosis, during the several had on a basis ingested daily and that she her months death. preceding death, death action instituted a wrongful

After DeWanda’s plaintiffs and health plan Court DeWanda’s against San Mateo County Superior Kaiser), that Kaiser (hereafter asserting referred as collectively physicians DeWanda’s tuberculosis monitoring negligent prescribing had been DeWanda’s death. was the cause of negligence medication and that such 1985, the action that stipulated to the civil Early parties of the provisions arbitration under the contractual subject mandatory was and also stipu- agreement, Kaiser medical and service hospital applicable In view of civil arbitration. stayed pending lated that the action should be court, 1985, staying entered an order in March the superior stipulation, arbitration. of the the civil action pending completion further proceedings “privilege,” commonly denominated 1Although protection afforded the statute communication,” 47(b) evidentiary does not create “privileged creates a section which (See, e.g., Royal Oren disclosure. compelled that a communication from protects 1157,1168 Karma, Bernhard, & Inc. Greenberg, Oaks Venture v. Weiss 567, Instead, 47(b) on 1202].) privilege operates as limitation P.2d the section Cal.Rptr. basis for a tort statements as the liability, protected use communications and precluding (See, (1993) 4 Cal.4th e.g., Rubin v. Green prosecution. action other than for malicious 1044]; (1990) 51 Cal.3d Kimmel v. Goland Cal.Rptr.2d P.2d 1193-1196 [17 Thus, contexts 524].) 47(b) many what in other creates P.2d “immunity” from suit. is termed an references are to the Civil Code. specified, Unless otherwise all section thereafter, retained, as medical Dr. Milton expert, Sometime Kaiser Conliffe, us, medical provide the defendant now before DeWanda, to the cause of her regarding including opinion information his death.

The began on claim Kaiser Octo- hearing plaintiffs’ against In December in the hearing, plaintiffs ber 1989. break during Conliffe, he scheduled a with Dr. docu- deposition produce that requesting case, ments his relating including review DeWanda’s articles or reviewed, consulted, to, he had or writings referred relied prepared, upon work his on case.

When he for his Dr. Conliffe his appeared deposition, produced only resume. his at Dr. it personal testimony Conliffe stated deposition, his was that DeWanda’s had opinion death resulted viral hepatitis, rather than hepatitis, nonviral therefore the use Isoniazid did not contribute to her death. In response to at the Dr. questions deposition, Conliffe also testified he had reviewed the articles and literature submitted plaintiffs, but denied or recalling being aware of medical literature any that attributed to the use hepatitis of Isoniazid. When asked specifically about his own contributions Dr. publications, Conliffe stated he had contributed certain “epidemiological information” to an article on “toxicity.”

The does not Dr. complaint allege that Conliffe testified at the arbitration hearing itself that his deposition testimony was introduced at that hearing. however, does complaint allege, that Kaiser’s at the position hearing was consistent with Dr. Conliffe’s deposition testimony, namely, that DeWanda’s death was caused a form viral and was hepatitis drug induced. At the conclusion of the arbitration proceeding January 1990, a that, majority arbitrators found although Kaiser had been DeWanda, in the negligent care and treatment of failed plaintiffs had to prove that the cause of her death was Isoniazid-induced On hepatitis. basis, the arbitrators ruled in favor of Kaiser.

Sometime decision, after the arbitrators had their rendered plaintiffs’ attorney discovered that in September three to Dr. prior months deposition, Conliffe’s an article had been in published journal medical another physician, reviewing number of deaths in hepatitis California Isoniazid, Conliffe, himself, attributed to and that Dr. had contributed infor- mation article, concerning DeWanda’s case of the author allegedly above, of example Isoniazid-induced death. As noted the complaint alleged Dr. Conliffe did not disclose the article in existence this testifying that Dr. the article demonstrated claimed deposition, plaintiffs

at the his testimony false at knowingly intentionally provided Conliffe deposition. Court in Alameda County Superior

In filed a May plaintiffs petition While that matter was pending, to vacate the arbitration award. seeking in tort action Alameda in filed the August present separate plaintiffs, actions, filed with the initial action along Court. two County Superior in a coordination joined Kaiser were against plaintiffs Court, County the San Mateo (Cal. Rules of rule 1501 et before seq.) us, it that plaintiffs’ petition Court. From the record before appears Superior resolution remained abeyance pending to vacate the arbitration award has matter. present action, as a result plaintiffs, In their initial tort complaint present sought have the arbitration alleged proceeding, misconduct occurred action, Kaiser, in the arbitration recover Kaiser’s damages against attorneys but over the arbitration presided proceeding, and the neutral arbitrator who filed a plaintiffs did not name Dr. Conliffe as a defendant. October action, a cause of action setting against first amended forth complaint of evidence.” of “concealment and theory suppression Dr. Conliffe on filed demurred to the first amended complaint, plaintiffs After Dr. Conliffe Dr. of action adding against additional amendments to the causes complaint, sup- intentional and negligent misrepresentation, Conliffe for negligence, contract, fact, inflic- and intentional civil breach of pression conspiracy, demurred, his again asserting tion of emotional distress. Dr. Conliffe 47(b). under Dr. Sustaining was section deposition testimony privileged amend, dismissed the Conliffe’s' demurrer without leave to the trial court him with against prejudice. action reversed,

On the Court concluding litigation appeal, Appeal 47(b) testimony embodied does not to a witness’s apply or to other statements made the course of a contractual arbitration private a court testimony proceed- but and statements proceeding, against the Court held that action Dr. ing. Accordingly, Appeal plaintiffs’ Conliffe to trial. Because of the go impor- should be forward permitted issue, review, we to be before limiting argued tance of issue granted in connection with this court to the “whether communications question are protected by litigation privilege.” II 47(b), Under the the has ac- current of section provisions in a number of corded an absolute or to statements made privilege immunity (1) other (2) (3) contexts: any legislative proceeding, judicial proceeding, law, (4) or law proceeding official authorized authorized by proceeding by by and reviewable writ of mandate.2 Dr. Conliffe Although argues statements made the course of a arbitration proceeding contractual private, can viewed the be within several of subsections of section properly falling 47(b), he the of primarily contends such statements come within aegis 47(b)(2), section which an absolute to statements made provides referred the “any judicial proceeding”—the provision more to as commonly “litigation privilege.” Silberg

In (1990) v. Anderson P.2d Cal.3d 205 (Silberg), we had occasion to undertake a rather extensive examination 365] time, of nature (which, and of the the scope litigation at was designated (2) section section 47(2)]).3 began subdivision We [hereafter our discussion in Silberg general with a overview of the application serve, “In privilege: furtherance it is to public purposes designed privilege prescribed by 47(2) given section has been broad application. Although [citation], originally enacted with reference to defamation communication, privilege is now held any to whether not it applicable or [citations], amounts to a all publication torts except prosecu- malicious Further, tion. applies any it to or publication [Citations.] required permitted law the by course of a to achieve the judicial proceeding objects of litigation, though even is publication no outside courtroom and the court or its (50 involved. Cal.3d at pp. [Citations.]” function of officers 211-212, added.) italics We then forth proceeded set the established of the parameters litigation privilege: “The usual formulation is that the com- privilege applies any (1) munication made in quasi-judicial (2) or proceedings', by litigants law; or other participants (3) authorized by to achieve the objects litigation; (4) that some connection logical or relation to the action. [has] (Silberg, supra, added.) [Citations.]” 50 Cal.3d at p. italics After thus briefly summarizing established and elements scope we privilege, Silberg went on in at length discuss some the fundamental served purposes We privilege. explained: “The principal purpose 47(b) 2Section currently provides in part: privileged relevant “A publication or broadcast is (b) one made: . . any (1) legislative (2) (3) . judicial proceeding, H] or or any other law, official authorized or in the any initiation course of other authorized law pursuant Chapter and reviewable (commencing with 1084) Section Title of Part 3 of the Code of Civil Procedure . . . .” 3At the time Silberg, 47(2) relevant pertinent read “A part: privileged publication or any broadcast is one judicial proceeding 2. In ... made-H] ...[$] the utmost free- 47(2) is to afford and witnesses litigants [citation] being subsequently by of access to the courts without fear of harassed dom []Q effective- 47(2) Section the promotes derivative tort actions. [Citations.] of communica- channels judicial proceedings by encouraging ‘open ness of evidence’ judicial proceedings. tion and the presentation [Citation.] to the adjunct right . . . Such communication is ‘a fundamental open to and Since quasi-judicial proceedings.’ access [Citation.] and right is destructive of this fundamental ‘external threat liability [citation], justice’ the effective administration of courts inconsistent with for communi- liability have to eliminate threat applied judicial, quasi- cations made all kinds of during truth-seeking proceedings: (Silberg, supra, official judicial, legislative proceedings.” and other Cal.3d at p. Court, in Briscoe v. LaHue that the United States

Noting Supreme 1108], had echoed these 460 U.S. L.Ed.2d 103 S.Ct. [75 absolute describing privi- same considerations of the policy purposes law, that Cali- Silberg accorded witnesses at common we observed lege fornia’s reflected a determination statutory litigation legislative free fear and lawsuits costly should be from the of protracted “witnesses refuse which otherwise cause them either to distort their might testimony 214.)4 (Silberg, supra, to 50 Cal.3d at testify altogether. p. [Citations.]” Furthermore, in Silberg litigation privi- we went on to out that the point integ- lege very purpose, namely, ensuring serves a additional important and ultimate that has rity controversy of the resolution of finality been reached We this through litigation explained regard: process. LaHue, 96, 106-107], the United 4In Briscoe v. 460 U.S. 333-334 L.Ed.2d Supreme point, observing apprehension States Court elaborated on this witness’ “[a] First, subsequent damages liability might self-censorship. induce two forms of witnesses stand, might testify. be reluctant to come forward to And once a witness is on [Citation.] testimony might subsequent liability. his be distorted the fear of Even within [Citation.] account or to state may ways give constraints of the witness’ oath there be various an opinion. may may emphasis These alternatives be more or less detailed and differ in lawsuit, certainty. might subsequent A witness who knows that he be forced to defend a perhaps pay damages, might testimony potential be inclined to shade his in favor uncertainties, candid, plaintiff, magnify deprive objective, and thus to the finder of fact of better served if the truthfinding process and undistorted evidence. But the [Citation.] testimony judicial process witness’ is submitted to ‘the crucible of the so that the factfinder it, cross-examination, may together in the case to consider after with the other evidence (Fn. omitted.) determine where truth lies.’ [Citation.]” addition, that, the court concern in the expressed noted in Briscoe that “some courts privilege, might erroneously subjected liability absence of a honest witnesses be because they difficulty proving inappro- would have the truth of their statements. The result seemed (460 priate light duty testify. p. these of the witness’ U.S. at [to courts] [Citations.]” 106].) fn. 13 L.Ed.2d at

643 from torts communi immunizing arising for from liability participants “[I]n the litigants cations the law during judicial proceedings, places upon falsity burden the witnesses and the of exposing of trial bias of during evidence, an avoiding the and thereby judgments of enhancing finality of an evil far than an occasional unfair unending roundelay worse litigation, function, result. our it is judicial necessary For system [Citations.]...[][] their assume for the of cause litigants complete litigation responsibility during integrity the To to attack the proceedings. litigant [of allow a action] concluded, of after in the evidence the have most except situations, fraud, narrowly circumscribed such as extrinsic would impermis burden, inundate, if sibly (Silberg, our justice system. [Citations.]” supra, 214.)5 50 Cal.3d at p. light of served we purposes litigation privilege, ultimately that, decisions, Silberg

held in to a line Court contrary of a prior Appeal plaintiff could not avoid the effect of the establish- privilege by alleging and that a ing communication was not made for the purpose promoting justice.” “interest of (Silberg, 216-219.) 50 Cal.3d at pp. reflection, It apparent, is even brief upon of the purposes litigation in privilege, as described Silberg, strongly support application to a witness who testifies in the course of a contractual private, arbitration such proceeding. Because a is to serve proceeding designed a analogous function to—and typically eliminate need to resort to—the (see, Womancare, 396, court system e.g., Blanton v. Inc. 38 Cal.3d 5fn. P.2d 109]), A.L.R.4th need an absolute foster and giving complete truthful testimony is as vital in the private contractual as a court setting arbitration it is (See, proceeding. e.g., Washington Corbin v. Fire Marine Insurance Co. (D.S.C. 1968) 393, 397, Furthermore, 543.) F.2d F.Supp. affd. 398 risk that a witness’s fear of either will deter the witness potential liability all, from testifying at or voluntarily as candid and a manner as complete is essential to the truthseeking mission of the is as process, great as setting (See, court proceeding. e.g., Sturdivant v. Seaboard Moreover, Service System, Ltd. 1983) (D.C.App. 1059.) 459 A.2d 5This reference “extrinsic apparently fraud” to the narrow permitting relates doctrine fraud,” i.e., judgment collateral attack on a has been obtained “extrinsic under circumstances in which “the aggrieved party deliberately kept ignorance [has been] action proceeding, or or in way some other fraudulently prevented presenting his claim Witkin, (8 Court, or (3d defense.” 1985) Cal. Procedure ed. Judgment Attack on Trial 602.) in Silberg explicitly recognized The court that a “fraudulent communication” “perjured testimony" made course in the of a proceeding absolutely privileged is provide does not avoiding basis for finality litigation the decision made in (Silberg, supra, process itself. at p. as testify because a witness be may compelled Proc., (see well Civ. 1282.6 [subpoenas], a court Code §§ subjecting potentially the unfairness of a witness to [depositions]), legally burdensome tort action on the basis of he or she testimony in in setting to is as the arbitration obligated significant problem provide a court proceeding. finality interest in the integrity the fundamental

Finally, protecting (Silberg, of roundelay litigation” of resolution from “an dispute unending 214) in the arbitra- supra, 50 Cal.3d at is as p. unquestionably applicable Indeed, in re- in as we our tion context as a court proceeding. emphasized in Heily cent decision Moncharsh v. & Blase 3 Cal.4th 899], 832 P.2d of of Cal.Rptr.2d ensuring finality importance “the parties’ the arbitrator’s decision is a frequently principal impetus choice of an arbitral forum one. The arbitrator’s decision judicial over Moreover, end, be the as starkly should not the of the beginning, dispute.” case, to demonstrated the facts of the because a present party’s right Moncharsh, (see an arbitration limited appeal extremely award is in even 8-33), Cal.4th at there is a risk the arbitration pp. setting, greater in than that the court that a will seek to present setting, losing party circumvent the tort subsequent limitations on review applicable by filing in action one or more of the the arbitration against participants on the basis of statements made that proceeding. Although plaintiffs’ in an at oral that a witness or other attorney suggested argument participant arbitration who tort action subjected unjustified has been to an action, that always may respond by filing suggestion malicious prosecution “unending of a third round of lawsuits into focus the simply brings sharp 214) roundelay litigation” (Silberg, supra, 50 Cal.3d at invited 47(b)(2)’s plaintiffs’ objective lawsuit. section present Consequently, force preserving finality resolution with dispute applies special arbitration context.

Ill contend, however, Plaintiffs even if the purposes litigation 47(b)(2) privilege embodied section of the support application statements made language contractual arbitration proceedings, 47(b)(2) of the statute to such precludes application proceedings. if Plaintiffs maintain that litigation privilege applied private is to be 47(b)(2) arbitration must amend section proceedings, specif ically to so Plaintiffs rests provide. argument upon premise 47(b)(2) reference in section . does not “any judicial . . proceeding” contractual we shall encompass private As proceedings. explain, is refuted plaintiffs’ argument interpreting both governing precedent the reach of the of this litigation privilege, history privilege. and by

A with, of the essential Silberg’s summary clear in To as is made begin judicial pro- to “any the reference privilege, components litigation to apply, California cases in section has been ceeding” interpreted past proceedings, court but also to those “quasi-judicial” proceedings, are functionally equivalent proceedings, such as 205, usual (See supra, Silberg, [“The court proceedings. to any is that the privilege] privilege applies formulation the litigation [of . . . .” quasi-judicial communication (Italics the reference to added).]) note that Although plaintiffs correctly itself Silberg dictum because Silberg was “quasi-judicial proceedings” are plaintiffs involved a statement made the course of a court proceeding, directly in decision has held asserting mistaken no California in 47(b)(2) made the course section to statements litigation privilege applies of a proceeding.

In P.2d (1985) Ribas v. Clark 38 Cal.3d the deci- Silberg 49 A.L.R.4th five years prior 417]—decided sion—we stated: “Civil Code section 47 relevant explicitly provides part ‘A In any that: 2. privileged or broadcast is one publication ...[][] (2) ... author- judicial (3) other official proceeding, any concedes, must, hearing ized by law. . . .’ Plaintiff as he that an arbitration to a scope analogy within the this because its falls proceeding.” (Italics added.) minimize the Although plaintiffs attempt significance of this statement Ribas that it too constitutes by claiming “dictum,” a careful review of the decision demonstrates that the stated Ribas inwas fact an element in that case. principle holding essential Clark, Ribases) In (the Ribas v. entered couple into a court-approved settlement a marital dissolution property agreement in which the wife was After the final not counsel. represented dissolution, judgment of the wife who advised her attorney, consulted a tax that the settlement had adverse tax her. When she thereaf- consequences ter informed her husband that she had retained an the husband attorney, the ensued. immediately attorney exchange Shortly and heated telephoned thereafter, (Clark), the wife went friend asked of business of a place husband, and, whether she could use the her to call at the same telephone time, that Clark requested listen to the conversation on an extension phone. husband, Without Clark did so. informing dissolution, The wife filed an subsequently alleging action to set aside Thereafter, that her husband had it fraud. as we procured explained Ribas, an arbitration testified to her recollection “[d]uring hearing, [Clark] which she stated particular, the conversation on she had eavesdropped. from wife that she heard concede he had his prevented [the husband] (38 counsel Cal.3d at obtaining during proceedings." dissolution favor, filed he Although subsequently arbitrator ruled the husband’s litiga- Clark (Clark)—the a new his wife’s friend Ribas v. against lawsuit various tion—seeking damages for violations of criminal statutes prohibiting intentional as well as for invasion of eavesdropping, privacy forms a demurrer infliction of emotional distress. trial court sustained and, defended dismissed the on the defendant Clark complaint, appeal, on the trial court on two that her judgment grounds: eavesdropping statutory husband’s did conversation plaintiff telephone violate that, event, the husband was privacy provisions question, and any barred, tort provisions obtaining recovery against her at testimony for the he he had suffered as a result of her damage alleged hearing regarding the overheard conversation.

After concluding initially that Clark’s on husband’s eavesdropping (Ribas did telephone conversation violate the relevant statutes privacy Clark, supra, 359-363), 38 Cal.3d at in Ribas turned to the court pp. issue, section 47 “Defendant next relies on the accorded to stating: (38 judicial statements in This has merit.” published proceedings. contention added.) the Cal.3d at italics The court its p. began legal analysis issue with the statement above: “Civil Code section 47 privilege quoted ‘A is relevant that: or broadcast one provides part privileged publication []Q in any ... 2. ... other any judicial proceeding, concedes, must, official authorized law. . . .’ as he by Plaintiff that an arbitration falls within the of the because of hearing scope privilege (Id. added.) its judicial to a at italics The court analogy proceeding.” p. “Nonetheless, then continued: that the ‘tortious nature and [plaintiff] urges the purpose’ alleged of defendant’s action takes his cause of action outside (Ibid.) of section 47 . . . .” privilege

The court Ribas then this analyzed rejected argument, concluding that the of the purpose “judicial proceeding” privilege supported application of the the privilege by “Underly- claims brought plaintiff, explaining: the vital free access to the ing privilege public policy affording is courts and the crucial functions of the finder of fact. facilitating [Citation.] ‘The resulting any really lack of effective civil remedy against perjurers that is for witnesses who are free from simply part price paid (Prosser, they say.’ intimidation of civil for what possibility liability Clark, (4th 1971) 778.)” at (Ribas supra, Law of Torts ed. v. p. pp. 364-365.) conclusion, “Thus, the extent in Ribas held:

As a result of this court as a he actual injury solely his suffered plaintiff alleges complaint action testimony hearing, at his cause result the arbitration of defendant’s (Ribas must v. under Penal Code section 637.2 privacy [the statute] fail.” Clark, added.) supra, 38 Cal.3d at italics p. barred, litigation the court thus held that the was Although plaintiff a result of from for suffered as privilege, recovering any damages any injury further held the defendant’s at the the court testimony hearing, that, $3,000 each because the statute authorized a civil award of for privacy violation of the statute actual inability prove injury, despite party’s because, case, on the facts of act—the violation of privacy defendant’s to have taken eavesdropping—was alleged place “during to, any conversation with prior of, wife and not in the context plaintiff’s] [the Clark, judicial proceeding” (Ribas italics supra, v. 38 Cal.3d at p. added), entitled plaintiff statutory Ribas was “to his proceed pursue $3,000, remedy judicial civil lawsuit for even bars though privilege recovery (Ibid., his the only damage actual he claims to have for suffered.” added.) italics reveals, As this review of the Ribas decision this court’s statement explicit in Ribas that “an arbitration hearing falls within the of this scope Clark, because of its analogy (Ribas to a proceeding” dictum, 364) Cal.3d at cannot be characterized as but rather was properly barred, essential to court’s that case was holding plaintiff the litigation or judicial proceeding privilege, obtaining damages suffered injuries as a result of the defendant’s at the arbitration testimony If the hearing. litigation had not been to the defendant’s applied at the testimony hearing, that case plaintiff’s recovery Thus, would not have been so limited. the statement Ribas question constitutes a holding, not dictum. dictum, addition to that in asserting statement foregoing Ribas was

plaintiffs argue that the Ribas decision can be from properly distinguished the present case on the ground arbitration at which the proceeding in defendant (see Ribas had testified a “judicial was arbitration” proceeding Proc., Code Civ. et 1141.10 rather than a contractual seq.), private § arbitra- Proc., (see tion proceeding Code Civ. et and 1280 seq.), consequently § our holding Ribas should be limited made in to statements the course of a “judicial arbitration” proceeding.6 But the Ribas does not opinion (or discuss disclose) even whether that case arbitration was conducted 6“Judicial arbitration” is a term of art procedural that refers to the scheme set forth in section seq. Although 1141.10 et of the Code of Civil Procedure. there are a number of or to the pursuant “judicial to a arbitration” pursuant agreement contractual statutes, suggest holding Ribas to that our absolutely nothing there is reasoning To the point. contrary, opinion’s that case turned this upon any to indicates that 47’s judicial proceedings privilege applies to a “arbitration that is court hearing” functionally equivalent proceeding, (38 of the such a to a “analogy hearing] judicial because proceeding.” [of Thus, claim, we that this plaintiffs’ Cal.3d at conclude p. contrary that, decision in as a holding general court’s Ribas constitutes a direct matter, the proceedings. section 47 to all arbitration privilege applies decision, “judicial

This of the Ribas that it is limited to understanding Court deci- arbitration” is confirmed proceedings, by subsequent Appeal sions, which that this declaring applies have relied Ribas upon con- to statements of—a good contemplation private made in—or faith analogous tractual such proceeding, treating arbitration (See Corp. Dooley ITT Telecom Products v. judicial proceedings. 307, 314-317, commer- & fn. 7 Cal.App.3d Cal.Rptr. [private 773] arbitration]; (1984) 156 Manufacturing

cial Wallin v. Vienna Co. Sausage A arbitration].) 1056 & fn. 5 Cal.App.3d 375] [labor treatise law that the Ribas on California further indication leading provides Witkin, (See decision this just has been understood fashion. generally Torts, 1988) of its (9th 515(e), ed. Summary Cal. Law [“Because an is within the arbitration similarity proceeding, injury stemming and causes of based on scope privilege, action (Ribas .)”].) arbitration . . . testimony are barred. v. Clark The Ribas decided since then the has case was its indicating amended section 47 on numerous occasions without ever or disagreement “judicial proceed- Ribas disapproval holding Thus, ing” litigation proceedings. privilege applies if even there reason to of Ribas' s any question validity interpretation was 47 as applied of section an of stare decisis as original proposition, principles against overturning would counsel questions statutory interpretation Ribas holding at this time. process “judicial differences between arbitration” and the traditional contractual Womancare, (see section 1280 et Blanton of the Code seq. authorized of Civil Procedure Inc., 5), processes & fn. consists of Cal.3d 401-402 in both arbitrators, neutral, nongovernmental adjudicatory by over one proceeding presided or more dispute subject a would be to resolution typically whose function is to resolve that otherwise upon testify of a witness in an arbitration by court From who is called perspective proceedings virtually indistinguishable, and there

proceeding, the two of arbitration are types liability immunizing against subsequent witness tort appears persuasive to be no reason in one but the other. context

649 B

Furthermore, if even we were to view the issue before us as a matter of section first we would conclude that the impression, litigation privilege 47(b)(2) to statements made contractual arbitration applies private, proceeding. II, (see ante),

As we have discussed already significant purposes pt. 47(b)(2)—i.e., furthered by open section witnesses to encouraging provide and candid and and testimony, preserving integrity finality dispute arbitra- resolution—strongly support application demonstrated, tion as will proceedings. Additionally, history be 47(b)(2) such an supports application. from, various embodied section 47 are derived privileges of, general originated a codification represent comparable privileges in, v. (See, Saroyan and were developed by, e.g., common law courts. 706, 557, 293]; (1962) Burkett 57 Cal.2d P.2d Cal.Rptr. 375, Albertson 405].)7 P.2d 379 [295 Raboff The relevant common law to witnesses is set forth privilege applicable section 588 Restatement Second of “A witness is Torts as follows: absolutely privileged to matter another publish defamatory concerning preliminary communications to a proposed judicial proceeding part or as aof judicial proceeding in which he is if it has some to the testifying, relation (Italics In proceeding.” added.) of the term describing scope “judicial section, proceeding” used this comment d specifically to section 588 provides: “Judicial include proceedings all which an officer proceedings functions, 585, or tribunal exercises c as to which see Comments § there, and As indicated proceeding may be included.” /. Torts, 588, 251, (Rest.2d added.) italics Torts, Section 585 of the Restatement which Second of the section to refers, comment d of section 588 of the Restatement embodies the related relating publication is one made: portion of A.L.R.4th one In by decision in Hackethal v. designations 652-653.) Although 7As law to a matter made: originally 791]. section 47 occurred in [$ authorized pertinent portion section 47 thereafter was amended at various times to within the . . . We discuss enacted pertinent ^[1] reviewable 2. Weissbein [J] provision, law . . . .” . of section 47 was amended to read: “A below the any . . material, [J] legislative 2. In section 47 writ of mandate—was added in when the testifying 24 Cal.3d 55 or in additional substantive amendment reply judicial proceeding, provided subdivision as a witness in question to section in relevant currently any proceeding allowed privileged publication change or in response 47(b). (See, post, change part: designated (b)(4)— any in the “A the numerical to this court’s other official P.2d authorized privileged tribunal.” pertinent pp. 650 or judges

common law or other officers privilege immunity applicable “A other judge a function. Section 585 or performing judicial provides: officer a is performing judicial absolutely privileged publish function has if in the defamatory performance publication matter function (which matter him.” c section 585 some relation to the before Comment of states, “The 588) in also is referred to comment d of section relevant part: created exercise of the function is also not confined to tribunals judicial Thus, a under arising legislative grievance provisions. proceeding function, exercising judicial collective the arbiter is bargaining agreement, to him and the are that extends protection indications this Section 245-246, Torts, 585, added.) (Rest.2d well.” italics pp. § reveal, immu- As law or these sections at common the absolute function judicial nity performing accorded both witnesses and officers were the term parallel “judicial proceeding,” privileges; scope include proceedings which witness was understood to privilege applied, (and in in which an or which officer tribunal exercises functions long accorded It privilege). officer is of an absolute thereby protection that, has been arbitrator recognized proceedings, arbitration private he she of an the role that enjoys benefit arbitral because Domke, (See exercises The Arbitrator’s is that of a analogous judge. A U. Immunity Liability: (1971) 1971 Tol. L.Rev. Comparative Survey From more of arbitration law and hardly any practice aspect [“There settled, relations, than the immunity both domestic and international award.”]; at their arriving arbitrators court actions for their activities in from 23:01, (rev. 1991) on ed. see Domke Commercial Arbitration generally, § 351-354.) contractual arbi- This arbitrators pp. rule—immunizing private (See tration tort from well established California. liability—is 1280.1; Proc., Tigerman (1983) Civ. 140 Cal.App.3d Code Baar v. § 41 A.L.R.4th broad arbitral [recognizing 1004] Proc., Thus, 1280.1].) Civ. our immunity to enactment of Code prior conclusion Ribas that is consid- private properly 47(b)(2) “judicial logi- ered a of section follows proceeding” purposes who exer- cally treatment accorded witnesses officers parallel cise a under judicial function the common law.

Furthermore, our in Ribas that the holding litigation privilege applies great at a also is consistent with the testimony weight those that have addressed the issue. authority jurisdictions other Co., (See, e.g., Washington Corbin v. Fire Marine Insurance 395-399, 543; (1991) 322 Odyniec affd. F.2d v. Schneider F.Supp. Stone, 786, 789-793]; Liang Inc. v. Hayden Md. 520 A.2d Shearson 104, 109; (N.D.Ill. System, Sturdivant v. Seaboard Service 1980) F.Supp. Ltd., 1058, 1059-1060; (1985) 221 Neb. supra, 459 A.2d Kloch v. Ratcliffe 916, 919-921]; N.W.2d Neece v. Kantu 84 N.M. 700 [507 accord, 452-454]; Airways, P.2d World Inc. DeTomaso v. Pan American (1987) 43 Cal.3d 526-533 733 P.2d 614] [state in ments made are investigation stage proceeding privi of labor arbitration action, under “If in federal law: an can institute a civil leged employee arbitration, essence in litigating at issue the value of questions (Id. 528.)].) arbitration as a resolution tool will be undermined.” dispute p. at if Accordingly, even we were to view the before us as one of first issue we would conclude that the of section impression, litigation privilege 47(b)(2) to a witness who testifies at a contractual arbitration applies private proceeding.8

IV case, relied reaching conclusion in this contrary Appeal Court Weissbein, in very heavily upon supra, case Hackethal v. court, decision, which this in a divided ruled that a closely quasi-judicial review” “peer proceeding, county held before the commission” of a “judicial (a medical society association) with to the private regard expulsion proposed of a from the physician was not an “official authorized society, proceeding and, 47(2), law” within the meaning of section as a that a consequence, witness who testified at such a was not entitled to the absolute proceeding Hackethal, afforded also rely heavily upon statute. Plaintiffs contending distinction drawn in and governmental that case between private should proceedings context as well. As we shall apply present explain, our view the Hackethal decision no basis for provides concluding that the litigation privilege does not to a contractual arbitration apply private proceeding. noted, Weissbein,

As the issue Hackethal presented Cal.3d 55, was whether a review conducted medical peer proceeding by private was an society “official proceeding meaning authorized law” within then-applicable provisions section 47. No claim was raised Hackethal that the review was a peer “judicial proceeding” within the of section meaning this court Hackethal consequently had no occasion analyze for interpret of section 47’s scope 8Because the statements at issue in present private case were made in the course of a (see contractual authorized by general California’s arbitration statutes Proc., Code Civ. seq.), holding applies given proceeding. 1280 et our testimony in such We have no litigation privilege applies occasion in this case to determine whether the statements dispute made in course of “alternative other than those resolution” involving arbitration. . Unlike a contrac- “any private . . judicial proceeding.” statements review Hackethal was hearing tual arbitration at issue proceeding, peer determining internal organization’s procedure own simply his the organization, whether the should lose physician membership Moreover, makers in for a the decision was not a substitute court proceeding. over review unlike the a proceeding, presiding such a arbitrators peer priv- not absolute by arbitration were proceeding, protected contractual function, accorded officers a ilege, traditionally performing (See qualified at the 43.7 a proceeding. [providing privilege actions taken § committees].) medical A contractual for members of review peer private and in- a maker arbitration conducted before neutral decision proceeding, a a resort to court tended to resolve that otherwise would controversy require (and in result of is as the present case—frequently that—as ordered 1281.2]), in plainly filed civil Civ. Proc. petition pending action § [Code court than the review analogous peer much more proceeding traditional at issue Hack- proceeding Accordingly, Hackethal. determination ethal, scope that a does not fall within the of private peer proceeding review 47, is the “official law” of section proceeding by provision authorized consti- inconsistent with the that a private conclusion Indeed, 47(b)(2). meaning tutes a within the section “judicial proceeding” seen, Clark, 355, years decided six supra, as we have Ribas v. Cal.3d Hackethal, given we applied litigation testimony after privilege either any such a without private proceeding, suggestion, court, with member of that such a conflicted parties any this conclusion the Hackethal decision.

Furthermore, Weissbein, to the v. rely upon extent that Hackethal plaintiffs 55, 24 Cal.3d a more intent to supra, general legislative indicative of the subsections scope confine the absolute accorded all of 47(b) in governmental, of section and not private, statements we taken by believe that an examination the action proceedings, decision refutes such a Legislature response to the Hackethal completely claim. decision, supra,

A chronology brief is instructive. Hackethal 55, 1979, 12, Cal.3d was filed on and elicited a swift very legislative April later, 14,1979, Bill (Assem. One month No. on bill response. May pending amended, decision, 478) was by adding to overrule Hackethal effectively 47(b), “any a new subsection to other extending mandate],” by [by namely, authorized law and reviewable writ of review very type proceedings to the asso- quasi-judicial, peer (See CommunityHosp. ciations that had been at issue Hackethal. Westlake 90, Superior 410].) Court 551 P.2d 1979, 25, Assembly version of the amended the Assembly passed On May 5481); Sess.) (1979-1980 (3 Reg. J. Bill a 67-0 vote Assem. No. 478 later, 19, 1979, a the bill the Senate passed month on June less than a 4727-4728). The Governor Sess.) (3 (1979-1980 Reg. pp. Sen. J. 29-0 vote (Stats. pp. ch. June into law on 1979. signed bill 403-404.) clear. its By appears

The lesson this action conveyed by legislative Weissbein, immediate, Cal.3d to Hackethal v. unanimous response priv- that the absolute strong demonstrated a conviction narrowly only should not be confined afforded section 47 ilege governmental conducted by witnesses who review testify peer in analogous who testify but rather also to witnesses agencies, apply should entities, because the private purposes review conducted peer proceedings This legislative served to such proceedings. privilege apply equally that, Legislature reaction belies claim as a plaintiffs’ general proposition, 47(b) to governmen- intended to limit the reach of the section tal proceedings. decision,

Thus, view, in Cal.3d is not supra, our the Hackethal applies inconsistent with the conclusion that the litigation privilege in statements made contractual arbitration private proceeding.

V additional Plaintiffs and several amici curiae a number of proffer in of section of their claim that the arguments litigation privilege support arbitra 47(b)(2) should be contractual interpreted private as applying these additional tion As we we conclude that none of proceedings. explain, contentions is persuasive.

A 47(b)(2) should not Plaintiff's claim that the absolute of section be to a at a testimony proceeding witness’s applied private because such a often lacks the and formal solemnity trappings Plaintiffs suggest court held courtroom. public a witness commit may absence of such increases the risk that formality 205, 212, makes supra, As this court’s perjury. Silberg, decision clear, however, any has been “to litigation applied privilege regularly a judicial proceed- law the course of publication required permitted by is though publication ing objects litigation, to achieve the even its made outside the courtroom and no the court or officers function of Thus, (Italics added.) never has been involved.” the litigation privilege public made before a in the confines of a formal judge limited to statements courtroom.

Furthermore, limit should be read to that the statute plaintiffs’ argument in the formal testimony given the absolute privilege only the reach of to the legislative response of a courtroom is refuted also setting discussed, decision, we have supra, just Cal.3d 55. As Hackethal Hackethal, 47(b) explicitly in the wake of the amending quasi- testimony given private, the absolute statutory privilege applied formal or which are no more review judicial peer proceedings, generally Indeed, in arbitration proceeding. than a contractual public typical private, response the statute amending view of the action Legislature’s Hackethal, 47(b)(2) by plaintiffs proposed of section interpretation in a a witness who testified would create the circumstance of anomalous subsequent from a being entirely review private peer protected who testified of such whereas a witness testimony, tort action on the basis to a similarity much greater bears a proceeding—which In view of the no such protection. traditional court proceeding—would enjoy alternative to of arbitration as an Legislature’s endorsement of use strong 1141.10, Proc., (a); Moncharsh (see, subd. the court Code Civ. system e.g., Ericksen, Arbuthnot, Blase, 1, 9; McCarthy, Heily & 3 Cal.4th Walsh, (1983) 35 Cal.3d 322 Kearney [197 & Inc. v. 100 Oak Street 251]), it unreasonable for us to 673 P.2d we believe would be Cal.Rptr. 47(b)(2) creating construe section a disparity. such

B section 1280.1— Plaintiffs next contend that Code of Civil Procedure in arbitration proceeding which that “an arbitrator” a contractual provides a liability”—reflects “has the of a officer from civil immunity judicial statements determination not to extend an absolute legislative in a contractual arbitration a witness or other participants to create an Plaintiffs had the intended proceeding. argue witnesses) in contractual from suit for all immunity (including participants arbitration, included all such partic- would have Legislature specifically arbitrators, we and not within the terms of section 1280.1. As ipants, in section shall intent reflected explain, plaintiffs’ reading legislative 1280.1 does not withstand scrutiny. in in response

Code of Civil Procedure section 1280.1 was enacted 1985 in Tigerman, supra, to the Court of decision Baar v. Appeal’s (see Superior American Arbitration Assn. v. Court Cal.App.3d 979 899]; Supe Lybrand & v. Coopers .2d Cal.App.4th Cal.Rptr 713]), and (1989) 212 Court 534-535 Cal.App.3d rior ascertaining purpose decision the Baar we must consider consequently of this statute. significance 979, a to a contractual party Tigerman, supra, Cal.App.3d In Baar arbitrator, it had claiming against suit brought timely render a failure to the arbitrator’s as a result of damages sustained analyzing agreement). (as the arbitration allegedly required by award issue, recognizing by explicitly its discussion began the Court of Appeal arbitra- immunity protect have long recognized of this country “[c]ourts arbitrator’s quasi-judicial actions taken from civil liability tors immunity, promotes like immunity, Arbitral capacity. [Citation.] 982.) The at (140 Cal.App.3d p. decisionmaking.” fearless and independent that the recognizing this fundamental principle, court Baar endorsed (even though in California of arbitral immunity applied doctrine general enacted.) had not been yet Code of Civil Procedure section 1280.1 applied doctrine immunity that the arbitral Although acknowledging California, arbitral recognizing noted that cases past the court Baar an arbitrator to hold sought who disgruntled litigants “involved immunity at (140 arriving Cal.App.3d at a decision” alleged liable for misconduct it as italics), the case before and the court viewed the issue original to an immunity extend whether “this court should presenting question italics.) The court {Ibid., original who never renders an award.” arbitrator circumstances, that, accorded immunity under recognized comparable against a similar tort suit—even bringing would judge prevent litigant within a deadline— judge statutorily prescribed who failed to decide case and arbitral status war- but concluded that the differences between judicial Accordingly, the court immunity ranted a more limited for arbitrators. to go held in that should be permitted Baar case forward. Baar, Civil

In in enacted Code of Legislature to the decision response 1985, in 1280.1 section Procedure section 1280.1. As initially adopted civil “An a officer from immunity judicial arbitrator has provided: under statute or any when in the of arbitrator liability acting capacity 1, (Stats. contract.” ch. § context, Civil in in Code of enacting

Viewed the intent of Legislature held that the of an scope is evident. Whereas Baar Procedure section 1280.1 a immunity enjoyed by is not as as the immunity arbitrator’s expansive arbitrators immunity section 1280.1 that the afforded judge, provides a equivalent immunity to the “of arbitration private proceedings Thus, conclusion that section 1280.1 reflects a legislative officer.” do that exist arbitration and differences between court than against liability warrant an arbitrator less tort affording protection judge. conferred upon

In it of this we believe is unreasonable light legislative history, suggest that, of Civil to arbi- only because Code Procedure section 1280.1 applies statute, trators, ex- infer Legislature, enacting we should that the intent not to a similar pressed immunity participants its afford to other to a Section 1280.1 enacted private proceedings. response was 979) (Baar decision specific Tigerman, supra, Cal.App.3d v. appellate that, view, immunity limited Legislature’s improperly scope 1280.1, to arbitrators. At time the section applicable Legislature enacted traditionally ac- no decision had the testimonial suggested that would arbitra- testify corded witnesses not be afforded to witnesses who Indeed, law in tion into when section 1280.1 was enacted proceedings. Clark, this court had held—in September recently Ribas just (decided 1985)—that of a witness testimony Cal.3d 355 March Civil absolutely privileged was under Code hearing circumstances, these that the suggestion section 47. Under we must reject section 1280.1 an intent on the Legislature indicates scope part in arbitration immunity limit to arbitrators the absolute only applicable Court, (Accord, supra, 8 Superior American Arbitration Assn. v. proceedings. that, Proc., 1131, 1134 Civ. because Code Cal.App.4th [rejecting argument “arbitrator,” refers to an did not intend to 1280.1 extend to the an arbitration immunity organization sponsoring proceeding]; Realty RML 1529-1530 Thiele v. Partners Cal.App.4th [same].) Cal.Rptr.2d 416]

Moreover, a Code of Civil section 1280.1 1990 amendment of Procedure that this be construed as limitation provision properly confirms cannot 47(b). This upon an otherwise afforded section applicable immunity 1280.1, section “The providing: amendment added second paragraph any afforded this shall and not supplement, supplant, immunity (Stats. statutory otherwise law or ch. applicable immunity.” common 817, 2.)§ sum, for plaintiffs’ we conclude that section 1280.1 no provides support 47(b)(2) does not litigation apply of section

contention the of a witness at a contractual arbitration testimony proceeding. private

C brief, consumer an amicus curiae filed on behalf of several Finally, matter, that, a protection suggests as organizations, additionally policy 47(b)(2) to applied of section should not be litigation privilege clauses that arbitration ground contractual arbitration on proceedings and are contracts on a unilateral basis are inserted into consumer frequently view, In amici curiae’s argument consumers. our voluntarily agreed is flawed two separate respects.

First, unfairness of to the extent the rests asserted argument upon an clause thrust upon consumer to be bound arbitration requiring adhesion, consumer in a would appropriate remedy appear contract of (see, be a direct to the of the arbitration itself challenge validity ITT e.g., Corp. Cal.App.4th Patterson v. Consumer Financial 563]), than the of a novel Cal.Rptr.2d adoption 1663-1667 rather witness, rule that would who to be called subject happens upon essence, such a participate potential liability. tort proceeding, wrong logically asserted of which amici curiae does not complain appear support proposed remedy.9

Second, to the extent that amici curiae’s rests argument upon assump- tion that arbitration withholding litigation consumers, will work to the of individual we believe the advantage argument is based upon questionable Because of the low cost and premise. relatively of the in a efficiency arbitration an individual consumer involved process, consumer will find typical dispute an arbitral forum more acces- frequently (See, sible than the more expensive e.g., cumbersome court system. Madden v. Hospitals (1976) Kaiser Foundation 711-712 [131 Furthermore, 1178].) Cal.Rptr. P.2d when consumers are involved in an arbitration are as as their adversaries to proceeding, they likely require who, the assistance of witnesses—witnesses as well already explained, may be deterred from or from testifying, without testifying fully candidly, Indeed, protection litigation view of the privilege. disparity resources between an individual consumer and an institutional it adversary, that, reasonable to appears were this court to a rule suspect adopt permitting a witness who testifies at an to a subjected to be action, collateral tort an individual consumer would be at a relative probably witnesses, disadvantage securing the such witnesses testimony because presumably would recognize consumer’s institutional has adversary the financial just resources to such a action them. pursue retaliatory against Thus, are, least, we believe that consumers at the as other very likely 9Moreover, Legislature specifically encouraged has use of clauses in the type (see of medical services contract present involved in the case Gross v. Recabaren that, Cal.App.3d 820]), provided explicitly long and has so as the conditions, complies statutorily arbitration clause with several prescribed contract “[s]uch adhesion, (Code improper not a contract of nor unconscionable nor . . . .” Civ. otherwise Proc., (e).) subd. to arbitra- the litigation privilege to benefit from application participants tion proceedings. view, arguments against applying our amici curiae’s

Accordingly, are unper- contractual arbitration litigation private rule. established departing suasive and no for provide justification VI above, we that statements For the reasons discussed conclude are protected course of a contractual arbitration private 47(b)(2). in section litigation embodied reversed, is matter and the The of the Court of is judgment Appeal the judgment with directions to affirm remanded to the Court of Appeal court. superior Lucas, J., Arabian, J., Sills, J.,* C. concurred.

BAXTER, J. I would affirm the judgment dissent. respectfully I which, view, the allegedly held that correctly Court of Appeal my communications. statements of defendant were not perjurious privileged immunizes which The one “litigation privilege,” hold majority libel, and witnesses and other tortious conduct perjury, by participants and other civil to witnesses liability, judicial proceedings against applies judicial I this join contractual arbitration cannot proceedings. participants efforts, which, one this court’s legislative of a statute but for expansion clear on its face. have believed to be might First, the communications privilege

Two should be made clear. things made in a created was for communications Legislature Second, Code, has (b)(2).)1 proceeding. (Civ. subd. § immunity considered the and has created setting Proc., 1280.1.) (Code limited arbitrators. Civ. exclusively § duration to ascertain When a statute the role of the court “is construing simply therein, not to insert what declare what is terms or substance contained inserted; omitted, (Code Civ. what has been . . . .” has been or to omit Proc., 1858.) Legis- effectuate the intent of the court’s purpose § Proc., (Code reasoning supports in the Nothing majority lature. Civ. Three, Justice, District, assigned by *Presiding Appeal, Appellate Court of Fourth Division Acting Chairperson of the Judicial Council. statutory are to the Civil Code unless otherwise indicated. 1All references

659 “judicial conclusion that it proceeding” includes arbitration or that the intent (b)(2) was that Legislature subdivision section 47 apply to private contractual arbitration. statute, law, when

Today, not the suit governs common immunity state, in this extend decision to witnesses is a immunity prerogative. Unless it is compelled by constitutional mandate or the issue before it falls within the inherent the power court over and judicial administration the court procedure, has no to create immunities in in which power an area has spoken. For this example, court has no authority recognize nonstatutory evidentiary privileges, class of which privileges be asserted may to maintain (Mitchell of communications. v. confidentiality 268, 274, 152, Superior (1984) Court 37 fn. 3 P.2d Cal.3d 690 Cal.Rptr. [208 625].) In the past court has recognized some nonstatutory common law (See, immunities. e.g., Emery Emery (1955) v. 421 45 Cal.2d P.2d [289 Nonetheless, 218].) immunity is an exception to that is principle liability 1708, 3333, (§§ 3523; 914, the rule. (1971) Gibson v. 3 Gibson Cal.3d 922 rule, Cal.Rptr. 648].) P.2d [92 Because liability is modern courts are reluctant to create or continue to that recognize exceptions deny an injured party right (Crisci compensation. Security Ins. Co. 66 Cal.2d 173].) Cal.Rptr. 426 P.2d A may court do so only if immunity is essential to achieve the goals of an important public policy and is not inconsistent with a legislative determination that is immunity inappropriate should be limited. areas which the Legislature has created a statutory immunity, limited

the court must presume that the Legislature has weighed the competing When, here, considerations defining of that scope immunity. acted, Legislature has it is inappropriate for court to recognize preexist- ing nonstatutory immunities or to expand statutory it is immunity unless clear that the Legislature did not intend the statutory to be immunity (Slaughter exclusive. v. Friedman Cal.Rptr. 886]; P.2d Johnson v. State (1968) 69 Cal.2d 782 [73 of California 240,447 352].) P.2d The legislative decision to create an immunity such as the communications in issue here involves a balancing of substantial, competing considerations. The majority usurp legislative function by undertaking balancing themselves and immu- by extending nity witnesses contractual arbitration The court is ill- proceedings. equipped do so.

In their eagerness to shift resolution dispute from the courts to arbitration the majority ignore the differences between contractual arbitration and engage and assumptions the record or unsupported by participants. fact as to of contractual arbitration on practical impact assumption is the those

Among unsupported insupportable assumptions when low cost efficient com relatively that contractual of That overlooks the thousands pared judicial proceeding. assumption who, into employment individuals but arbitration inserted provisions leases, contracts, agreements, consumer bank customer agreements, contracts, at and more other would resolve their much less cost disputes court, and, superior claims or many municipal small cases quickly reasons, assumption this and other court. For well-founded paternalistic resolution of the that is a means of majority preferable dispute arbitration Reuben, (Feb. 1994) (See Dark ADR not shared. The Side universally of 53; Brand, 14 ‘Dark Side You Can Take to Avoid That Steps Cal.Law. of Slavin, 4, J., 5, 1; Rush to (Mar. 1994) ADR’ at col. Guill & Daily S.F. 8; (Summer J. Yama 1989) The Downside ADR 3 Judges’ of Unfairness: moto, Minorities Efficiency’s Threat to the Value Accessible Courts for 341, 360-361; Rowe, Law (1990) 25 Harv. American Institute C.R.-C.L. Rev. Alternatives, and Accommoda Study Way’’:Litigation, on Paths to a “Better 824, Edwards, 901; Paper (1989) Alternative Background tion: Duke L.J. 668; (1986) Dispute Resolution: or Anathema? 99 Harv.L.Rev. Panacea Brunet, (1987) Questioning Dispute Alternative Resolution 62 Quality of 1; al., Minimizing the Formality: L.Rev. et Fairness and Risk Delgado Tul. Resolution, Prejudice Alternative 1985 L.Rev. Neither Dispute Wis. the assumptions majority holding. the law nor of the support

I Litigation Privilege The statute, be, The not what the is controlling. think law should majority In that majority holding that of section 47 on which the bases its part immune he arising defendant is suit out of the any deposition testimony “A gave in this contractual Legislature provided: proceeding, (b) any is one made: . . . . . . privileged publication broadcast ffl] [f] (2) added.) judicial proceeding (Italics . . . .” court, it candidly Legisla-

The that was the not majority acknowledge ture, immunity which that cover communication expanded grant any of, of, or in it is litigation though made the course even not anticipation either the court or its “judicial and does involve proceeding” ante, 640-641; Silberg officers. v. (Maj. opn., Anderson Cal.3d pp. 365].) effort Cal.Rptr. having 786 P.2d That legislative the extension position been now take that accomplished, majority to which the litigation privilege contractual as a proceeding I litigation disagree. is also settled case law. privilege applies by prior held already has that arbitration majority’s assertion court (b)(2) are within the created subdivision Clark Ribas single 47 is sentence supported only by 417], 49 A.L.R.4th P.2d must, “concedes, in that case falls plaintiff hearing as he that an arbitration within the of this of its to a scope analogy because concludes, as the proceeding.” Assuming, majority’s lengthy exposition court, was a it should “holding” precedent concession is not sound be I reconsidered for reasons address below.

I do not believe that value “When precedential statement has however. manner, ... decision treats an issue and and is ‘summary conclusory’ (City devoid of ‘virtually reasoning,’ its authoritative status is undermined. Superior 515, 327, Berkeley Court v. (1980) Cal.3d 26 533 Cal.Rptr. [162 of 36].)” 606 P.2d (McHugh Santa Rent Bd. v. Monica Control (1989) Cal.3d 49 348, 318, 91].) 358 777 P.2d when Cal.Rptr. particularly This is true Son, the issue is one of & I.J. Inc. v. Jackson (See first impression. Weinrot 327, Cal.3d 682].) 336 P.2d The law of this state is not determined on the basis of a concession and the party’s court’s assumption that the of concession law is valid. when the issue Only is raised the squarely by parties and considered the court in a decision by analysis of the reflecting legal issue and the reasoning conclusion supporting is the ruling authoritative The Constitution of de- holding. California Const., VI, ( mands less. 14.)2 no Cal. art. §

precedents required motion, or is dismissed on a in this well would stated.” opinions cases some added, sitting as a Committee of the Whole. “The ation of article VI subjected to the severest criticism. 1878-1879 Constitutional When the That 2Article requirement was not bank or in determine considered cases argued afford the section. (Cal. to deliver written opinions, legal cannot be overrated. VI, Constitution disposed the the departments and submitted requirement Const of issues subsequent causes Undoubtedly opinions, bench and Constitution of and shall be in provided: without written Convention, Delegate providing cases, shall mandates: because was bar part upon it technical art. will insure of be proposed They of the ...[!]... writing VI, “In the determination of their this state. At the time given they stating ... the “Decisions . . . become the for 1850 Constitution. question opinions. merits, must come before the guidance with reasons stated.” ^[1] by the importance a careful the writing, ... the Committee on express [T]hroughout the United States the grounds Wilson of the Supreme Sometimes a case which the court’s ^[1] practice. there the and examination purpose ... Of explained of the the written the settled law It was added as requiring causes, But I grounds decision decision, jurists of course, Court and its of the ensuring am the all decisions of the Court the opinion goes purpose to the of analysis of the speaking generally, is of Judiciary during Court to there will the decision shall be as we have cases, off on some formal part careful consider- requirement courts little account country State, of section 2 of and give Courts always reasoning of delegates provided result and are written and be appeal was the are be Clark, not Cal.3d is conceding Ribas Implicitly authoritative,3 “holding” do not on the majority rely solely sufficiently result, reasoning majority adopts As further for the support that case. commu- to immunize which the of section subdivision expansion support “in was justified nications not made a judicial proceeding” “judicial be equated conclusion that contractual arbitration should immunity provided within the umbrella of brought and thus proceeding” That is not this context. reasoning persuasive statute. underlying I do statement of the majority’s purpose dispute is to (b)(2) 47. That purpose subdivision of section immunity granted by court, and to free access to the litigants ensure that and witnesses have if might compromised frank and full all of which be encourage testimony, of a lawsuit and witnesses were threatened parties possibility of an action. Arbitration based on communications necessary prosecution court, Extending used to access to the however. increasingly being deny institu- encourages contractual arbitration litigation privilege It to ensure access nothing tional to abandon does parties judicial system. individuals on whom arbitration court for consumers and other are who otherwise choose agreements imposed, proceed- but would over arbitration. ings moreover,

The that while the deterrent fails to majority acknowledge, essential to the effect of a action for libel and/or not be possible perjury may directed, the function which actions are truth-finding legal fundamental to same cannot be arbitration. The Legislature assumed contractual private inherent a well have concluded that trial and may appellate procedures ascertained, thus action are to ensure both that the truth is legal adequate the libelous or litigants might injured by and others who be protecting witnesses, statements of and and that the credible evidence perjurious parties is is sufficient and the law to the facts on which the action correctly applied law, (2 & settling gives writing.” the unless the Court its reasons for the decision in Debates 1878-1879, 950-951.) Proceedings, pp. Cal. Const. Convention Court, During affecting Supreme debate the subsequent provisions the on the of article VI again explained: Wilson resort as matters “[0]pinions Mr. must be written a Court of last precedent. very thing sitting saying judgment It is a different down and of the reasons, giving any Court below is reversed or affirmed without because when that is to published, nobody right wrong. Judge knows whether that decision is But when the has stating opinion, they give opinion writing, sit down and write an or . . . must their the decision, State, grounds they brought they of the then are bar the and are before whole (3 present position adjudication.” bound to themselves in a where law and reason sustain the & Proceedings, Debates Cal. Const. Convention at 1878-1879 Clark, concession in Ribas party 3The status of the as a doubtful holding Legislature’s precedential authority adequate explanation or as is more than “holding.” failure to “overrule” that Those protective guaranteed only judicial are predicated. procedures however, and the not determined that the truth- proceeding, Legislature has war- seeking mechanisms of contractual are sufficient to in a civil rant withdrawal of to seek tort action parties’ right damages when those engage mechanisms fail because and participants witnesses perjury. the legislative

Since do not address the factors that majority inform decision to create I do so. immunity, among judicial

1. Foremost which proceed- features deter perjury is fact The trial ing that is a public proceeding. to the and and a record is available open press public their Since witnesses are aware that press public. litigants and statements are but impeachment, cross-examination and subject public also to as a scrutiny, will be acts possibility exposed perjury deterrent to perjury.

2. The judge and are jury neutral decision makers. Neither is dependent ensures, upon parties litigation for income. This neutrality greatest extent will possible, perjury recognized just be decision rendered.

3. Witnesses are sworn to tell the truth. 4. Discovery is available to the parties. to discover the ability evidence which the upon case opponent’s rests enables the parties prepare effective cross-examination and to obtain and present evidence. impeaching law, The trier

5. of fact is to follow required and review for of errors law or of insufficiency credible evidence is available by appeal.

The has determined that are protections those sufficient to warrant denying litigant a the right to a civil action a against perjurious witness. It has not done so regard with to arbitration for That good reason. ¡that reason is comparable are protections guaranteed not in private contrac- tual arbitration. By contrast:

1. Arbitration proceedings are private. None formality a proceeding surrounds an arbitration Rules hearing. governing judicial proce- Proc., 1282.2, dure (Code are not applicable. (d).) Civ. subd. § arbitrator, arbitrators, The 2. are or dependent for their upon parties income. law take They are an oath of and required fairness

664 Institutional contracts all litigants relegate disputes whose impartiality. serve are the source arbitrators. major many Many of income (See, as Kaiser Founda- e.g., arbitrators for institutional clients. repeatedly (Cobum) (1993) Hospitals, Superior Cal.App.4th tion Inc. v. Court 431]; Hospital v. Kaiser Foundation Cal.Rptr.2d Neaman Note, also, 879]; Impression The see Cal.App.4th Cal.Rptr.2d Possible Bias: What a Neutral Arbitrator Must Disclose California not, be, and cannot Hastings guar- L.J. Neutral is decisionmaking anteed under these The testimony circumstances. likelihood witness who on of an institutional client will be regularly behalf appears as is diminished. perceived perjurious necessarily 3. need the rules of only Witnesses be sworn on of a request party Proc., 1282.2, (Code evidence (d).) do not Civ. subd. apply. § evi- Discovery guaranteed. only 4. is not are available Depositions dence, not for matters discovery purposes, involving personal except death, then if injury grants party’s application. or the arbitrator Proc., (Code 1283.05.) Civ. actions Only involving personal §§ death, $50,000, or or claims of injury damage may party excess of demand that the other party hearing. list of witnesses provide prior Proc., 1282.2, (Code (a)(2).) Civ. subd. Failure to list a witness is not a bar § Proc., 1282.2, (Code to admission of that witness’s Civ. subd. testimony. (a)(2)(E).)

The likelihood that a will be able to mount an effective cross- party examination when the nature of a witness’s testimony is not known proposed reduced, to the prior as is the hearing significantly ability of party marshal other evidence to counter that at the testimony hearing.

5. No record need be content of a witness’s is not kept. testimony A preserved' and thus not third open posthearing scrutiny by parties. witness therefore may give conflicting testimony separate fear proceedings without of exposure.

6. No review is appellate any judicial insufficiency available for credible evidence. The of the arbitrator is final insofar as the factfind- ruling (Moncharsh is 3 Cal.4th ing process Heily involved. v. & Blase 899].) 9-11 Cal.Rptr.2d 832 P.2d [10

The assertion of the that contractual arbitration is com- majority private is, end, to a parable judicial the based on its of purpose What is adjudicatory dispute reasoning any resolution. is omitted this of fact for a contractual arbitration procedure mention the private statute, the between the hearing by parties. is not established but contract 1282.2,which of Civil 1282 and provisions The Code of Procedure sections of proceedings, offer skeleton format for the conduct procedural are default is applicable Each section procedures. expressly “[u]nless to the otherwise or unless the arbi agreement provides, parties (Ibid.) . . .” provide tration otherwise . therefore, is,

There single no or even standard format for contrac- private tual arbitration. None of the available to a safeguards procedures party are expose guaranteed false testimony be contractual arbitration. cross-examination be assumed to Although may in all such it not an permitted attorney is cross-examination proceedings, or who is informed evidence. party by discovery impeaching nonetheless withdraw from forced into arbitration majority persons the only meaningful deterrent to perjury, against action perjurious witness whose misconduct denied may may have them have recovery resulted in unjust imposition liability upon the party. Only Legislature has an individual the civil for power deny right to a action Indeed, such injury.4 It has not done so and today, this court should not. until the court acknowledged the immunities established expansion was, be, statute, section 47 and should a legislative and that prerogative, law, common source of immunities in this state.

The court has this on Ad repeatedly recognized limitation its authority. libel, dressing limited statutory we rejected any judicial stating: expansion, Legislature has yet not as the section “[T]he adopted 592A [of Restatement Second of .... We have held Torts] all questions regarding applicable privileges libel actions were resolved by (Albertson the adoption of section 47. v. Raboff(1956) 46 Cal.2d 405].) 378-379 P.2d it seem Accordingly, would us improper for judicially to create an additional privilege, one which is especially consid Moreover, erably broader than the existing statutory privileges. grant in defense privileges of a defamation action involves matters public (See policy. Kachig v. Boothe Cal.App.3d 393].) Deferring to legislative judgment, we decline to either impose our own or the Restatement’s views of in an policy, especially area which the Friedman, spoken has (Slaughter so extensively.” 149, 158.) Cal.3d The majority justification offer no for a departure from 4Section “Every person 3281: who suffers detriment from the unlawful act or omission of another, may recover from person compensation money, fault therefor in which is damages.” called litigation privi- the context of the legislative judgment this deference to lege. statutory privilege the court declined to again expand

More recently, (1989) Broadcasting Cal.Rptr. Co. 48 Cal.3d 711 Kelly [257 Brown v. There, (c) 47 was issue. what is now subdivision of section 771 P.2d 406]. “without for communications That section creates qualified privilege therein, malice, interested (1) one who is also by to a interested person of (c)(1).) expansion a construction or (§ sought . . . .” subd. Defendant about a to the general public media immunity encompass publication that be construed that the statute could not Concluding private person. such an that argument policy supported broadly, rejecting public empirical of recognized changes require analysis we that expansion “[s]uch Section data and are dealt with arena. legislative [Citation.] better [, (c)] which can act accord Legislature, 47 subdivision is a creation of the 711, 740.) (48 if the statute should be Cal.3d ingly expanded.” it believes the section 47 communication Neither the for of necessity expansion arbitration has need to extend those privileges possible privileges nor It has created numerous additional Legislature. been overlooked (See, e.g., was enacted 1872. communication since section 47 privileges heal- evaluation of practitioner 43.8 for communication on [immunity §§ arts], law (b)(4) authorized by subd. ing [communications owner, licensee, mandate], for or [immunity operator and reviewable 48.5 radio by agent station for defamation broadcast over broadcasting while child 48.7 libel or slander action abuse [immunity against employee], Code, abuse]; Bus. & Prof. charges pending report [commu- nication information to board of information licensing regarding possible abuse, licensee].) alcohol or mental illness of drug dependence, (b)(4) of subdivision to section 47 demonstrates addition statutory when it believes that communication responsive As the majority immunities should be for reasons of expanded public policy. this court’s holding was added recognize, provision response 592 P.2d Cal.3d 55 Cal.Rptr. Hackethal v. Weissbein 791], medical society that a review of a 9 A.L.R.4th peer thus communi- was not an “official authorized law” and (b)(3) 47 was cations what is now subdivision of section narrow, was however. That inapplicable. legislative response appropriately not, hearing It did as defendant extend argues, immunity any private (See Safeway San described as Cuenca might be “quasi-judicial.” Credit Employees Cal.App.3d Francisco Fed. Union 852].)

667 a following Court of decision that an arbitrator Again, Appeal holding in a did not com serving private enjoy contractual arbitration (Baar v. (1983) 979 judicial immunity Tigerman Cal.App.3d 140 plete [211 426, 1004]), 41 Cal.Rptr. Legislature by enacting A.L.R.4th the responded Code of Civil That created the Procedure section 1280.1 1985. of acting officer from civil for arbitrators as “immunity liability” 1990, pursuant such to statute or contract. the section was amended to provide immunity “any also that the would and not “supplement,” supplant otherwise law applicable immunity,” reflecting common or statutory Legislature’s law immunity of existence of common of acceptance 555, 557; (See (1881) v. v. judges. Turpen Pickett Wallace 57 Cal. Booth 94; 65; (1880) (1855) 56 Cal. Downer v. Cal. Oppenheimer Lent 6 v. 931]; (1959) Ashburn 631 v. Perry 173 P.2d Meikle Cal.App.2d [343 17]; (1951) 102 605 P.2d v.Wyatt Arnot 7 Cal.App.2d [228 86].) Cal.App. 227 P. [94 for,

The did not create thereby com immunity recognize, of, mon law immunity witnesses contractual arbitration proceed private ings, however. The legislative response “legislative policy was a determina tion that in view of court overwhelming congestion, was complete immunity essential to encourage persons (Coopers Lybrand serve arbitrators.” & Superior 713], Court Cal.App.3d added.) italics Even decision that should enjoy immunity arbitrators was tentative. As enacted the its immunity provision expired own terms on 1, 1991, 709, 1, January (Stats. unless extended. ch. It has extended, since been but for a limited again period will on expire 1, 1996, January unless a further extension is enacted. This hardly is legislative arbitrators, resounding endorsement immunity of and says nothing about immunity for witnesses and participants private contractual The arbitration. limited nature of the grant of immunity by Legislature that was aware of clearly importance legislative indicative of intent to restrict immunity arbitral arena. on the majority encroach policymaking sphere legislative branch expanding statutory grant immunity to encompass participants and witnesses con tractual arbitration.

It arbitrate, is no answer to say that have parties agreed to and to accept loss of the right to civil tort action for when perjury, standard form consumer contracts include an arbitration that is often neither provision read nor understood (See, consumer. e.g., Patterson v. ITT Consumer Corp. (1993) Financial Cal.App.4th 563].) Nor is it Cal.Rptr.2d sufficient say may consumer avoid the arbitration impact To a con- is one adhesion.5 that the contract establishing

provision by court, the claims a claim small litigate sumer who would otherwise retaining of a contract by the arbitration clause avoiding of prospect when Only a realistic alternative. and a civil action is not attorney initiating bargaining of parties equal the contract has been negotiated sophisticated to right waiver of the knowing that a and voluntary can it be said power exchange witness has been made suit subsequent against perjurious the “benefits” of arbitration.6 47, subdivision relevant to the of whether section question

Although arbitration, must made be (b)(2), response contractual encompasses private a judicial is less than costly that arbitration majority’s assumption who, the consumer but for It most is not to certainly proceeding. court, contract, claims would resolve a small arbitration clause claim Arbitra herself in the or court. municipal superior or himself or represent in the are typically one arbitration service this state leading tor’s fees for 1994) 14 (Reuben, (Feb. King $350 $500 the Hill per range! hour of addition, service fees with the 55.) there be or may filing Cal.Law. service, and fees for written findings fees for and discovery, Corp., ITT Financial (See, Patterson v. Consumer hearings. e.g., expedited 1659, 1665, of 3.) and the supra, expense expenses fn. That Cal.App.4th contract, arbitrators, in the if more than one is called for the arbitrator or the time The arbitrator’s fees are not limited to must be shared the parties. itself, or which the arbitrator but include conferences hearing prehearing which be may mediation or settlement conferences party may require, ordered, (See generally, the time devoted to of the award. and preparation Services, Inc., Rules of Practice Judicial Arbitration & Mediation J.A.M.S. Association, Arbi (1992); & Procedure American Arbitration Commercial (1992).) tration Rules ground. Legisla “imposed” agreements may 5Some not be avoided on that The adhesion, a contract of nor provided

ture has that a contract for medical services is “not statutory requirements which improper” complies unconscionable nor otherwise if it with Proc., (Code (e).) attempt notice. Civ. subd. ensure Association, American Bar paper 6In their for the Judicial Administration Division of the Slavin, Jr., concerns, concluding that expressed James L. Guill and Edward A. similar dispute may “highly inappropriate” parties unequal alternative resolution be when are should not “be experience. They suggest plaintiffs financial resources or individual biased, qualified, than or may forced to submit their claims to someone who be or less unethical, statutory regulatory control is less accountable and whose or who for lack of Slavin, Rush (Guill may subject judicial decisions not be review.” & Unfairness: ADR, 10.) supra, Downside Judges’ p. J. at major “a express particular The authors concern that the absence of review removes decisions, error, inequality.” and against arbitrary capricious prejudicial inequity, bulwark ADR, Slavin, Rush to The Downside (Guill Judges’ J. at & Unfairness: II Proceeding Privilege

The Official I amici curiae argument would also of defendant and several reject which utilize contractual arbitration as representing organizations groups preferred means resolution dispute communications course of within the established contractual arbitration fall (b)(3) subdivision for official Private contrac- proceedings. section 47 tual not an of that contemplation arbitration is official within the subdivision. 47, (b)(3) subdivision of section the has created immunity “in other any proceeding communications official authorized law.” by time, 47

Section was enacted in At that part as of Civil Code 1872. 47, “official (then 2(3)) proceeding” privilege designated section subdivision was described one as a made while simply applicable to communication “testifying a witness in law matter any authorized to a material, and in pertinent or a The reply question allowed the tribunal.” provision was amended in 1874 to in describe the which communications were privileged with Pursuant to the greater specificity. a amendment privileged communication was one made in only “any legislative or in judicial other proceeding, or official author- any 47, Two; 1873-1874, 612, 11, ized by (§ law.” subd. Amends. Code ch. § interim, Although other of in parts section 47 have been amended the language of 47(b)(3) subdivision has been changed not since 1874. 1872, included,

At the time of its in enactment in section 47 what was subdivision, then the fourth (see a privilege (d)) now subd. which § complements the official a proceedings privilege, reports for news privilege of statements made proceedings covered second subdivision. That fourth subdivision extended to a “a privilege publication malice, fair and true report newspaper, judicial, without of legislative, or other official or public of proceeding, anything said the course there- of.”

At the same time the Legislature included similar the Penal Code of 1872. As enacted in that former year, section of that Penal Code provided: editor,

“No reporter, or proprietor any is liable to newspaper any for a fair true prosecution and of any judicial, other report legislative, or statement, official public proceedings, any speech, argument, or debate same, in the malice in such making course of except upon proof which the mere implied publication.” shall be fact of report, The drafted the Civil Code offer no Code of a privilege for news of statements made reports during “public” official proceedings strongly suggests that that limitation although “public” 47, was not in 2 express subdivision of the the original legislative intent was to create a privilege public, to statements applicable only i.e., governmental, official proceedings. “

I the rule when recognize statutory Legislature of construction ‘that another, has carefully a term one and has excluded it in it employed place ” Co., (Brown should not be where excluded.’ implied Kelly Broadcasting 711, context, however, supra, 725.) In this that rule would seem to be irrelevant since there is no reason to believe that 1872 the Legislature had nongovernmental “official in mind. it did proceedings” That suggested by Legislature’s use of subsequent descriptive phrase 711, Co., 728-729, 7See Brown v. Kelly Broadcasting supra, 48 Cal.3d footnote 15. Those Mitchell, Barb., 369; 461; N.Y., citations were: vs. p. Chapman, p. “Perkins 31 Lewis vs. 16 Moser, Denio, 488; 1872, Torts, (1 p. Thorn vs. 1 1 Hilliard on 317.” Code of p. Ann. Civ. 47.) foll. § reports 8The for news of proceedings statements made in official was taken from provided the New York Civil Code which at that person time in section 25: “No is liable for publishing report a fair newspaper, any judicial, legislative public and true in a or other same, proceeding, anything except upon proof official or of said in the course of the extrinsic of actual malice.” 369, The New York Chapman Commissioners of the Code cited Lewis v. 16 N.Y. and the New York chapter authority provision Laws of as for the which also addressed subject communications to an interested became subdivision 3 of person, which the 1872 version of section 47. other official author any or or “legislative judicial proceeding, 1873-1874, (Code Amends. ch. ized law” in the 1874 amendment of a statute generis The rule of aids the construction ejusdem “ if general there is Under that ‘where words follow ambiguity. canon will enumeration of or words things, general classes particular persons same only things general be construed as or of the applicable persons nature class those enumerated. The rule on the obvious reason or is based that if the intended used in their Legislature general had words to be sense, it things unrestricted would not have mentioned particular ” which event things classes would that become mere surplusage.’ (Sears, & Diego County Carpenters Roebuck Co. v. San Dist. Council of 317, 331, 676].) Cal.3d fn. 10 P.2d relevance of the rule is here where the felt particularly apparent it necessary to amend the statute to of the clarify nature which the version described them privilege applied, original having as “any proceeding authorized law.”

The court reached the the history same conclusion after reviewing Weissbein, section 47 Hackethal v. There the Cal.3d 55. court held an “official proceeding nongov- authorized law” did not include amendment, ernmental proceedings. The purpose the court reasoned, was to make it clear that the authorized “proceeding by law” which the 1872 statute extended absolute were communication privilege only official governmental It for proceedings. was that reason that Legislature found it necessary to 43.8 in enact section 1974 to create a qualified communications to and licensing various committees organizations were intended to assist evaluating qualifications practitioners. medical The Legislature specified in that statute that the new was privilege to the addition 47.” privilege “[i]n afforded Section by (§ 43.8.) The court noted in that “The regard: enactment 43.8 of section 47, 47, makes sense because section subdivision 2 subdivison [now (b)], applies (24 exclusively government agencies.” at 61.) Cal.3d p.

The Legislature 47, apparently accepted that understanding of section as it 2, then amended subdivision (b), now subdivision of that section to extend the absolute privilege to any proceedings reviewable writ of by mandate. 1979, 184, 403; (Stats. ch. see p. v. Sausage Manufacturing Wallin Vienna 1051, Co. 156 375], Cal.App.3d 1055 text Cal.Rptr. accompa 4.) fn. nying “It ais well-established that principle statutory construction when the Legislature amends a statute without altering portions provision construed, that have previously been judicially Legislature is presumed to have been aware of and to have in the acquiesced previous Point, (Marina 721, construction.” Ltd. v. 30 Cal.3d Wolfson 496, 115, 734 P.2d 1161].) 640 30 A.L.R.4th

672 47, when the court considered amendment of section

After Friedman, supra, in Slaughter it v. established scope privileges official only nongovernmental concluded that the again Cal.3d court were adjudicatory for which section 47 created a privilege proceedings clause added Legislature reviewable writ of mandate. proceedings “[T]he (b)] the privilege of section applying to subdivision subdivision [now clear, mandate. It is law and reviewable authorized proceedings however, this does not fall within of dental claims processing private (32 at extended Cal.3d newly category." Weissbein, supra, Cal.3d

Defendant that Hackethal acknowledges read arbitration contractual excluding private be as may (b)(2) the court urges of the section subdivision privilege, scope addressed limit overrule that decision. He that Hackethal argues case, in that at issue society proceedings status of the medical privileged “quasi- the failure to discuss arbitration and other majority intend to elimi- that the court did not judicial” implies private proceedings he proceedings, suggests, nate the Those proceedings. subject were not holding they were and the court’s “pseudo-judicial,” extended to such “quasi-judicial” proceedings should not be arbitration. private that the basis for recognize

The flaw that lies its failure to argument 55, 60-61, Weissbein, the court’s Hackethal v. holding (b)(2) to apply was that the did not intend section subdivision resembled a Whether or not the nongovernmental proceedings. was, obviously, quite was not court judicial proceeding dispositive. aware of the of its on other potential impact holding “quasi-judicial” impact arbitration. The dissent made that proceedings, including potential clear. Hackethal is

I with the the Court of agree Appeal conclusion of immu- proceeding privilege of defendant’s claim that official dispositive nizes his statements and conduct.

I would affirm the of the Court of judgment Appeal. Kennard, J.,

Mosk, J., and concurred. Werdegar, for a was denied June 1994. Appellants’ petition rehearing Kennard, J., Baxter, J., J., Mosk, J., were of did not therein. participate should be petition granted. opinion notes Code Commissioners who into their the term insight understanding proceedings.” “official cited referred for communications explanatory authority only to to interested which was then found in former subdivision 3 of persons section and to a The Code Commissioners’ Note proceeding.7 former reference 1872 Penal Code makes accompanying to the decision which the court Bennett N.Y. Sanford held a New creating York statute such a privilege applied them, “judicial resembling and to transactions legislative proceedings, admitting and not to'an executive act to be single performed by person (Ann. 254.)8 of no deliberation . . Pen. Code of foll. . (b)(3), Like section subdivision which is the Civil Code among defamation, addressed to civil actions for section 254 of provisions former the Penal Code was then criminal among which provisions permitted for libel. The the Penal prosecution inclusion both Civil Code and

Case Details

Case Name: Moore v. Conliffe

Court Name: California Supreme Court

Date Published: Apr 28, 1994

Citation: 871 P.2d 204

Docket Number: S031410

Court Abbreviation: Cal.