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Court of Appeal:
Privilege Need Not Be Specified to Be Affirmative Defense
Reference to Conduct Being ‘Privileged’ Was Sufficient to Plead Official Proceedings Immunity in Civil Code §47
Where Allegations of Complaint Indicated That Liability Was Alleged Based on Filing of False Police Report
By a MetNews Staff Writer
The official proceedings privilege set forth in Civil Code §47(b) was not waived by defendants based on not specifically raising it as an affirmative defense, Div. Three of the Fourth District Court of Appeal held yesterday, saying that a general reference to “privilege” suffices.
Justice Gabriel P. Sanchez authored the unpublished opinion. It affirms a judgment notwithstanding the verdict awarded to the defendants by Orange Superior Court Judge Charles Margines in a case in which the plaintiffs sued for defamation over a false police report alleging that they had stolen a car in their possession.
Sanchez’s opinion rejects the contention by plaintiffs William and Jennifer Young—who are exporters of vehicles to China—that defendants Keyes European LLC, a Mercedes-Benz dealership, and its general manager, Simon Sarriedine, cannot claim the benefit a privilege they did not expressly invoke in their answer. The jurist pointed to the ninth affirmative defense, which says:
“As a separate and distinct affirmative defense, Defendants state and allege that their conduct was at all relevant times lawful, privileged and/or justified.”
Holding Announced
Sanchez wrote:
“This general allegation of privilege was sufficient because the complaint alleged facts indicating the application of section 47. Indeed, the complaint states the alleged defamation was ‘providing [p]laintiffs’ names to police and...the police report....’ Defendants’ ninth affirmative defense accordingly provided adequate notice that section 47, subdivision (b) was at issue.”
Sec. 47(b) renders privileged a communication in any “official proceeding authorized by law.”
Notwithstanding the 2004 proclamation by a 4-3 majority of the California Supreme Court in Hagberg v. California Federal Bank that police reports are absolutely privileged ““without respect to the good faith or malice of the person who made the statement,” the defendants argued that an amendment to §47, effective Jan. 1, 2021, renders the privileged qualified. It now provides in subd. (b)(5):
“This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”
No Retroactivity
The contention was rejected.
“[T]he amended statute does not apply to the instant case because there is no indication of legislative intent to apply the amendment retroactively,” Sanchez declared.
He went on to say:
“Defendants filed the police report in 2017 so we analyze the issue under Hagberg’s absolute privilege rule….Under that rule, the court did not err by finding defendants’ report and communications with law enforcement were absolutely privileged and could not serve as the basis for plaintiffs’ defamation claim.”
The case is Young v. Sarriedine, G059384.
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