Katz v. Rosen

Decision Date10 June 1975
Citation48 Cal.App.3d 1032,121 Cal.Rptr. 853
CourtCalifornia Court of Appeals Court of Appeals
PartiesDavid H. KATZ, Plaintiff and Appellant, v. John D. ROSEN, Defendant and Respondent. Civ. 35300.

Leland C. Spiegelman, San Francisco, for plaintiff and appellant.

Petris & Vasil, Fremont, for defendant and respondent.

CHRISTIAN, Associate Justice.

David Katz appeals from a summary judgment dismissing his complaint for libel against John Rosen.

The declarations supporting and opposing the motion for summary judgment are not in factual conflict. Curtis Freund, an attorney, was retained by Madalyn Honig early in 1970 to represent her in a personal injury action. Freund hired Dr. John Rosen, the respondent herein, to perform a medical examination of Miss Honig and to write a report regarding the extent of her injuries. Respondent performed these services and charged $56 and $100 for the examination and report, respectively. Appellant was subsequently substituted as attorney for Miss Honig in the personal injury action. Appellant and Freund agreed that Freund was to receive one third of any attorney's fees received by appellant for his representation of Miss Honig; respondent's fees were to be paid by Miss Honig upon recovery in the personal injury action. Miss Honig's personal injury claim was settled in May 1972. While the $56 fee for the medical examination was promptly paid, Miss Honig asserted a right of setoff as to the $100 charged for the report, claiming that she had performed housekeeping services of equal value for respondent. Respondent denied that Miss Honig had rendered any services to him, and sought the assistance of the San Francisco Bar Association to induce appellant to pay. He at first rejected a recommendation by a member of the San Francisco Bar Association's Medical-Legal Subcommitted to settle his claim for $50.

Appellant then exerted pressure on Freund to bring about a settlement between Miss Honig and respondent. While admitting that Freund was entitled to the agreed share of attorney's fees, appellant repeatedly refused to remit as long as Freund was unable to persuade respondent to accept a compromise. Freund explained his predicament to respondent. Out of consideration for Freund, respondent reluctantly agreed to the compromise which had been proposed. He thereafter wrote the following letter to the San Francisco Bar Association complaining of appellant's conduct:

August 23, 1972

San Francisco Bar Association

222 Montgomery

San Francisco, California

Gentlemen:

I am writing this letter as a result of a most perturbing situation which arose recently, and I hope you may be able to offer some guidance. In brief, at the request of an attorney acquaintance of mine, Curtis A. Freund, I examined a patient, Miss Madelyn Honig, in connection with injuries received in a 1968 automobile accident. My fee for the examination was paid, but Mr. Freund asked me to wait for payment for the medical report until settlement of the case. I agreed, although it is not by usual practice. My fee for the medical report was $100.00.

Subsequently, Mr. David H. Katz, a San Francisco attorney, took over the case from Mr. Freund with an arrangement for payment on settlement to Mr. Freund for services rendered to that time. The case was settled a few months ago, but I was informed by Mr. Freund that Mr. Katz would not pay him his agreed fee unless I reduced my charge for the medical report to $50.00. I contacted the Bar Association at that time, and was advised by Miss Ollie Marie-Victoire that my fee was reasonable and should not be reduced under the circumstances. Mr. Freund fully concurred in this.

Nonetheless, Mr. Katz persisted in refusing to pay either me or Mr. Freund our fees unless I reduced mine by half. With great reluctance, and due to the pressures of time and my wish to be considerate of Mr. Freund, I agreed to the reduction. I then received my fee, and I understand Mr. Freund received his, more than three months after Mr. Katz had been paid.

I am most resentful of the kind of pressure to which I have been subjected in this matter. My fee for the medical report was incurred three years ago, and no objection to it had been stated for that entire time. I feel it was reasonable and completely justified under the circumstances, and agreed to reduce it only because Mr. Freund's fee would not be paid otherwise. In other words, I feel I was 'help up' to avoid payment of a legitimate bill to which I was fully entitled.

I consider this conduct on the part of Mr. Katz to be shabby and unethical, and far afield from the standards of your profession I have expected and experienced in the past. If I am wrong in this, I would appreciate knowing why. In any case, I would very much like a considered response from you.

Sincerely yours,

John D. Rosen, M.D.

JDR/dc

cc. Mr. David H. Katz

Mr. Curtis A. Freund Appellant's complaint alleged that the letter was libelous. Charges of unethical conduct against an attorney may constitute actionable defamation (see Locke v. Mitchell (1936) 7 Cal.2d 599, 61 P.2d 922; Anno. (1943) 144 A.L.R. 814). Respondent claims that even if potentially libelous the statements were absolutely privileged under Civil Code section 47, subdivision 2, which provides that a publication made in a judicial proceeding or any other official proceeding authorized by law is privileged. The privilege conferred by the section is absolute and unaffected by the presence of malice. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 864--865, 100 Cal.Rptr. 656; Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323, 116 Cal.Rptr. 781.) The absolute privilege extends to quasi-judicial as well as judicial proceedings. (Ascherman v. Natanson, Supra, at p. 865, 100 Cal.Rptr. 656.)

Informal complaints received by a bar association which is empowered by law to initiate disciplinary procedures are as privileged as statements made during the course of formal disciplinary proceedings. (Ramstead v. Morgan (1959) 219 Ore. 383, 347 P.2d 594, 77 A.L.R.2d 481; see cases in annotation, 77 A.L.R.2d 493.) Prior to the enactment of the state bar act in 1927 (see Stats.1927, ch. 34, § 1 et seq., pp. 38--45), local bar associations in California were empowered to institute disciplinary action against their members. (See Stats.1921, ch. 107, § 3, p. 100; In re Morganstern (1923) 61...

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  • Hecimovich v. Encinal Sch. Parent Teacher Org., A130852.
    • United States
    • California Court of Appeals
    • February 9, 2012
    ...... showing “ ‘a feeling of hatred or ill will going beyond that which the occasion for the communication apparently justified..’ ” ( Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037, 121 Cal.Rptr. 853.) To defeat a SLAPP motion, plaintiff must overcome substantive defenses ( Gerbosi v. ......
  • Stamas v. County of Madera
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 14, 2011
    ...investigation). A statement must be made to an official agency having the power to address the complaint made. Katz v. Rosen, 48 Cal.App.3d 1032, 121 Cal.Rptr. 853 (1975) (letter to local bar association complaining of an attorneys alleged unethical conduct). Official proceedings include pr......
  • Klem v. Access Ins. Co., D070623
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    ...does not apply to communications insufficiently related to investigation or remedy of wrongdoing. (See, e.g., Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037, 121 Cal.Rptr. 853 ( Katz ) [absolute privilege did not apply to letter to local bar association regarding attorney conduct, explaining......
  • Hecimovich v. Encinal Sch. Parent Teacher Org.
    • United States
    • California Court of Appeals
    • April 25, 2012
    ...of hatred or ill will going beyond that which the occasion for the communication apparently justified....’ ” ( Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037, 121 Cal.Rptr. 853.) To defeat a SLAPP motion, plaintiff must overcome substantive defenses ( Gerbosi v. Gaims, Weil, West & Epstein, ......
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