Metropolitan News-Enterprise


Tuesday, January 6, 2004


Page 1


Reports to Police Protected by Absolute Privilege, S.C. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A report to police of suspected criminal activity is part of an “official proceeding” and absolutely privileged under Civil Code Sec. 47(b), the California Supreme Court ruled yesterday.

  In a pair of 4-3 decisions that resolved a split in the Court of Appeal, the justices upheld rulings by Los Angeles Superior Court Judges David Minning and Alexander Williams III granting summary judgments to defendants. Dissenting justices argued that the absolute “official proceedings” privilege does not apply to reports to police and that the reports at issue in the two cases were protected only by the qualified “common interest” privilege.

Minning’s ruling absolved California Federal Bank of liability for allegedly violating the civil rights of a plaintiff who claims that she was falsely accused of presenting a forged check because of her Hispanic origin.

  In the case heard by Williams, Pilot Air Freight was found to be without legal responsibility for the alleged false imprisonment of a salvage dealer who sold a flight recorder that the company claimed was stolen from it.

In her opposition to Cal Fed’s summary judgment motion, Lydia Ortiz Hagberg said she had attempted to cash a check from the Smith Barney brokerage firm at a Pasadena branch of the bank. Although the check was legitimate, she claimed, the bank contacted the police and she was taken from the teller window, searched and handcuffed.

As the police were placing her under arrest, she said, she looked at the teller—who was also Hispanic—and the teller told her she “looked like a criminal.” She was released 20 minutes later.

The bank claimed that it suspected the check to be invalid because some of the print was “fuzzy” or “smudged” and that part of the address line was missing. Their initial contact with Smith Barney indicated that the check was no good, and by the time that information was corrected, the police had already arrived.

The teller’s supervisor said in her declaration that upon learning the check was good she approached the police and told them the bank no longer needed their assistance, but that they “proceeded with an investigation and detained the customer.”

Minning and the Court of Appeal both ruled that Sec. 47(b) applied, and that under prior authority, the only cause of action that can be pled on the basis of a report to police is malicious prosecution.

The high court agreed, rejecting the plaintiff’s argument that public policy precludes application of the privilege to defeat statutory claims such as those made under the Unruh Civil Rights Act banning discrimination in commercial transactions.

“We have explained that the absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings,” Chief Justice Ronald M. George wrote. “....We have explained that both the effective administration of justice and the citizen’s right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings.”

While reports to police are not made in a courtroom, the chief justice elaborated, they are still part of a “proceeding” within the legislative meaning of the term. He noted that the privilege has been applied to statements made in administrative proceedings, to communications to enforcement agencies such as the Board of Medical Quality Assurance and the Internal Revenue Service, and to reports by the Bureau of State Audits.

Justices Joyce L. Kennard, Ming Chin, and Carlos Moreno joined in the opinion.

Justice Janice Rogers Brown, writing in dissent, noted that the statute had never been applied to reports to police prior to 1982, more than 100 years after it was enacted. The Legislature, she said, has never accepted the majority’s premise that absolute privilege is necessary to encourage citizens to report criminal behavior.

Justices Marvin Baxter and Kathryn M. Werdegar joined Brown in dissent.

In the other case, the same 4-3 majority rejected Robert Mulder’s claim that false imprisonment actions, like those for malicious prosecution, should be excluded from the reach of the privilege. The plaintiff, George said, failed to show any basis for the court to add to the exception that is already in the statute.

The Hagberg case was argued by Peter A. Zablotsky, a professor at the Jacob D. Fuchsberg Law Center of Touro College in New York, for the plaintiff and by Jules S. Zemen of Haight, Brown & Bonesteel for Cal Fed. The Mulder case was argued by Robert Ezra of Encino’s Ezra Brutzkus Gubner for the plaintiff and San Francisco lawyer Robert A. Bragg for Pilot Air Freight.

The cases are Hagberg v. California Federal Bank FSB, 04 S.O.S. 53, and Mulder v. Pilot Air Freight, 04 S.O.S. 65.


Copyright 2004, Metropolitan News Company