Ascherman v. Natanson

• Decision Date: 28 February 1972
• Citation: 23 Cal.App.3d 861,100 Cal.Rptr. 656
• Court: California Court of Appeals Court of Appeals
• Parties: Stanford W. ASCHERMAN, M.D., Plaintiff and Appellant, v. Alvin S. NATANSON, M.D., Defendant and Respondent. Civ. 28578.

Page 656

100 Cal.Rptr. 656

23 Cal.App.3d 861

Stanford W. ASCHERMAN, M.D., Plaintiff and Appellant, v. Alvin S. NATANSON, M.D., Defendant and Respondent.

Civ. 28578.

Court of Appeal, First District, Division 2, California.

Feb. 28, 1972.

Rehearing Denied March 29, 1972.

Hearing Denied April 26, 1972.

Leo Fried, San Francisco, for appellant.

Hassard, Bonnington, Rogers & Huber, Salvatore Bossio, San Francisco, Crosby, Heafey, Roach & May, Chris Gasparich, Oakland, for respondent; Richard G. Logan, Oakland, of counsel.

KANE, Associate Justice.

This action for slander was brought by appellant Stanford W. Ascherman, M.D. against respondent Alvin S. Natanson, M.D. A jury verdict in the sum of $5,000 was rendered in favor of appellant. Thereafter, the trial court granted respondent's motion for judgment notwithstanding the verdict. The present appeal followed.

In 1963 appellant, a physician and surgeon, applied for staff privileges at Marin General Hospital, a facility owned and operated by Marin Hospital District. On March 24, 1964 the board of directors ('Board') of the hospital district denied his application. However, by letter dated March 25, 1964, appellant was advised that a hearing would be granted if he made a written application therefor within 30 days. Such written petition was made by appellant, whereupon the Board appointed a hearing officer, selected a court reporter and set the hearing for May 19, 1964. Appellant and his counsel were so notified by Harold F. Riede, attorney for the hospital district, on April 29, 1964. On May 4, 1964, as part of his investigation preparatory to the hearing, Mr. Riede called upon respondent who, as a former colleague and fellow surgeon of appellant at Chanute Air Force Base, had some information concerning appellant's professional qualifications. On the basis of this interview with appellant and similar interviews with others, Mr. Riede prepared a bill of particulars which formed the basis of the hospital district's position at the hearing. The interview took place in respondent's office in the presence of his secretary who had also been his medical secretary at Chanute and who also had some first-hand knowledge with respect to the questions discussed. It was during this interview that respondent made the statements which gave rise to the instant action.

Since respondent admits that the jury verdict finding defamation is supported by sufficient evidence, the only issue to be decided here is whether, in light of the facts of the case, respondent was entitled to the absolute privilege claimed in his answer and relied on later in his motions for judgment of nonsuit and judgment notwithstanding the verdict.

Preliminarily, it ought to be pointed out that the privilege of a Witness during an administrative or judicial proceeding is governed by Civil Code, section 47, subdivision 2, which provides in pertinent part that a privileged publication or broadcast is one that is made in any (1) legislative or (2) judicial proceeding or (3) in any other official proceeding authorized by law. Although the statute does not provide so explicitly, the cases make it clear that the privilege conferred by section 47, subdivision 2, is an absolute privilege which is in no way affected by the presence of malice. (Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405; Gosewisch v. Doran (1911) 161 Cal. 511, 513--515, 119 P. 656; Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 93, 53 Cal.Rptr. 706.)

The nature and extent of the absolute privilege accorded to judicial proceedings was recently summarized in Smith v. Hatch (1969) 271 Cal.App.2d 39, 45--46, 76 Cal.Rptr. 350. Accordingly, the absolute privilege attaches to any publication that has any reasonable relation to the action and is permitted by law if made to achieve the objects of the litigation even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Albertson v. Raboff, supra, 46 Cal.2d at p. 381, 295 P.2d 405.) To be privileged under section 47, subdivision 2, the defamatory matter need not be relevant, pertinent or material to any issue before the tribunal; It need only have some connection or some relation to the judicial proceeding (Thornton v. Rhoden, supra, 245 Cal.App.2d at p. 90, 53 Cal.Rptr. 706). The absolute privilege afforded to persons in judicial proceedings, of course, extends to witnesses (Rest., Torts, § 588).

The phrase 'in any other official proceeding authorized by law' embraced in section 47, subdivision 2, has been interpreted to encompass those proceedings which resemble judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings. (Gunsul v. Ray (1935) 6 Cal.App.2d 528, 530, 45 P.2d 248; McMann v. Wadler (1961) 189 Cal.App.2d 124, 129, 11 Cal.Rptr. 37.) In accord with the California cases, the general rule is now well established that The absolute privilege is applicable not only to judicial but also to quasi-judicial proceedings and defamatory statements made in both judicial and quasi-judicial proceedings having some relation thereto are absolutely privileged (Ramstead v. Morgan (1959) 219 Or. 383, 347 P.2d 594, 596; Rainier's Dairies v. Raritan Valley Farms (1955) 19 N.J. 552, 117 A.2d 889, 894; Middlesex Concrete Products & Excavating Corp. v. Carteret Ind. Ass'n (1961) 68 N.J.Super. 85, 172 A.2d 22; Rest., Torts, § 588, comments c and d; 45 A.L.R.2d 1298).

It is also well settled that the absolute privilege in both judicial and quasi-judicial proceedings extends to preliminary conversations and interviews between a prospective witness and an attorney if they are some way related to or connected with a pending or contemplated action. (Watson v. M'Ewan (1905) A.C. 480; Youmans v. Smith (1897) 153 N.Y. 214, 47 N.E. 265; Zirn v. Cullom (1946), 187 Misc. 241, 63 N.Y.S.2d 439; Rest., Torts, § 588.)

The foregoing principles as applied to the facts of the instant case make it evident that since the defamatory statements by respondent were uttered during the May...